MICHIGAN APPEALS REPORTS
CASES DECIDED
IN THE
MICHIGAN
COURT OF APPEALS
FROM
July 25, 2013, through October 22, 2013
CORBIN R. DAVIS
REPORTER OF DECISIONS
VOLUME 302
FIRST EDITION
2014
Copyright 2014 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.
COURT OF APPEALS
T
ERM
E
XPIRES
J
ANUARY
1
OF
C
HIEF
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
:
JEROME W. ZIMMER, J
R
.
R
ESEARCH
D
IRECTOR:
JULIE ISOLA RUECKE
1
1
From October 14, 2013.
SUPREME COURT
T
ERM
E
XPIRES
J
ANUARY
1
OF
C
HIEF
J
USTICE
ROBERT P. YOUNG, J
R
. .............................................................. 2019
J
USTICES
MICHAEL F. CAVANAGH............................................................ 2015
STEPHEN J. MARKMAN............................................................ 2021
MARY BETH KELLY.................................................................... 2019
BRIAN K. ZAHRA ........................................................................ 2015
BRIDGET M. M
C
CORMACK ....................................................... 2021
DAVID F. VIVIANO ...................................................................... 2015
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 KATHLEEN M. DAWSON
ANNE-MARIE HYNOUS VOICE RUTH E. ZIMMERMAN
DON W. ATKINS SAMUEL R. SMITH
JÜRGEN O. SKOPPEK ANNE E. ALBERS
S
TATE
C
OURT
A
DMINISTRATOR
CHAD C. SCHMUCKER
C
LERK:
LARRY S. ROYSTER
R
EPORTER OF
D
ECISIONS:
CORBIN R. DAVIS
C
RIER:
DAVID G. PALAZZOLO
TABLE OF CASES REPORTED
(Lines set in small type refer to orders appearing in the Special Orders
section beginning at page 801.)
P
AGE
A
Adair v Michigan ................................................. 305
Adair (Daniel) v State of Michigan ...................................... 801
Agro, People v (Anthony) .................................... 450
Agro, People v (Barbara) ..................................... 450
Agro, People v (Nicholas) .................................... 450
American Honda Motor Co, Inc, Gorman v ...... 113
Art Van Furniture-Conner Inc v State
Treasurer ............................................................... 467
Art Van Furniture Inc v State Treasurer .......... 467
B
Bateson, Lima Twp v .......................................... 483
Bellevue Ventures, Inc v Morang-Kelly
Investment, Inc ................................................ 59
Bickle, Sprenger v ................................................ 400
Bloomfield Charter Twp, Maple BPA, Inc v ...... 505
Bloomfield Twp v Kane ....................................... 153
Book-Gilbert v Greenleaf .................................... 538
Boynton, In re ...................................................... 632
C
City of Dearborn, Detroit Lions, Inc v ............... 676
i
P
AGE
City of Jackson, Jackson Coffee Co v ................ 90
City of Jackson, Jackson County v .................... 90
Clohset v No Name Corp (On Remand) ............ 550
Curtis, People v .................................................... 450
D
Dearborn, McLean v ............................................ 68
Dearborn (City of), Detroit Lions, Inc v ............ 676
Dep’t of Treasury, Menard Inc v ........................ 467
Dep’t of Treasury v Podmajersky ....................... 153
Detroit Lions, Inc v City of Dearborn ................ 676
Detroit Medical Center v Progressive Michigan
Ins Co ................................................................ 392
F
Fleissner, People v ............................................... 450
G
Gorman v American Honda Motor Co, Inc ....... 113
Green, UAW v ...................................................... 246
Greenleaf, Book-Gilbert v ................................... 538
Grimes v Van Hook-Williams .............................. 521
Grossman Investments Co, Matthew R Abel,
PC v .................................................................. 232
H
Harco National Ins Co, Zaremba Equip, Inc v .... 7
Harper, In re ........................................................ 349
Herndon & Herndon Investigations, Inc,
Radu v ............................................................... 363
Howmet Corp, Nichols v ..................................... 656
I
In re Boynton ....................................................... 632
ii 302 M
ICH
A
PP
P
AGE
In re Harper ......................................................... 349
In re TALH ........................................................... 594
J
Jackson (City of), Jackson Coffee Co v .............. 90
Jackson (City of), Jackson County v .................. 90
Jackson Coffee Co v City of Jackson ................. 90
Jackson County v City of Jackson ..................... 90
Janes, People v ..................................................... 34
Johnson, People v ................................................ 450
Jones, People v ..................................................... 434
K
Kalamazoo County Rd Comm, Oshtemo
Charter Twp v .................................................. 574
Kalamazoo County Rd Comm, Oshtemo Charter Twp v ... 801
Kane, Bloomfield Twp v ...................................... 153
L
Lakeview Community Schools v Lakeview
Educational Support Personnel Ass’n/MEA/
NEA ................................................................. 600
Lakeview Educational Support Personnel
Ass’n/MEA/NEA, Lakeview Community
Schools v ............................................................... 600
Lariat, Inc v State Tax Comm ............................ 1
Lewis, People v ..................................................... 338
Lima Twp v Bateson ........................................... 483
Livingston Capital LLC v State Tax Comm ...... 1
Livingston County, Northline Excavating, Inc v .. 621
M
Maple BPA, Inc v Bloomfield Charter Twp ....... 505
T
ABLE OF
C
ASES
R
EPORTED
iii
P
AGE
Matthew R Abel, PC v Grossman Investments
Co ...................................................................... 232
McLean v Dearborn ............................................. 68
Menard Inc v Dep’t of Treasury ......................... 467
Menard Inc v State Treasurer ............................ 467
Mich AFSCME Council 25, Mt Pleasant Public
School v ............................................................ 600
Michigan, Adair v ................................................ 305
Michigan, Michigan Coalition of State
Employee Unions v .......................................... 187
Michigan Coalition of State Employee Unions
v Michigan ........................................................ 187
Morang-Kelly Investment, Inc, Bellevue
Ventures, Inc v ................................................. 59
Mt Pleasant Public School v Mich AFSCME
Council 25 ......................................................... 600
N
Nichols v Howmet Corp ...................................... 656
No Name Corp, Clohset v (On Remand) ........... 550
Northline Excavating, Inc v Livingston
County .............................................................. 621
O
Organ Procurement Agency of Michigan,
Tyra v ..................................................................... 208
Oshtemo Charter Twp v Kalamazoo County
Rd Comm .......................................................... 574
Oshtemo Charter Twp v Kalamazoo County Rd Comm .... 801
P
People v Agro (Anthony) ..................................... 450
People v Agro (Barbara) ...................................... 450
People v Agro (Nicholas) ..................................... 450
iv 302 M
ICH
A
PP
P
AGE
People v Curtis ..................................................... 450
People v Fleissner ................................................ 450
People v Janes ...................................................... 34
People v Johnson ................................................. 450
People v Jones ...................................................... 434
People v Lewis ...................................................... 338
People v Prominski .............................................. 327
People v Richmond .............................................. 450
Podmajersky v Dep’t of Treasury ....................... 153
Progressive Michigan Ins Co, Detroit Medical
Center v ............................................................ 392
Prominski, People v ............................................. 327
R
Radu v Herndon & Herndon Investigations,
Inc ..................................................................... 363
Richmond, People v ............................................. 450
Rongers, Silich v .................................................. 137
S
Sears Roebuck & Co v State Treasurer ............. 467
Silich v Rongers ................................................... 137
Sprenger v Bickle ................................................. 400
State of Michigan, Adair (Daniel) v...................................... 801
State Tax Comm, Lariat, Inc v ........................... 1
State Tax Comm, Livingston Capital LLC v ..... 1
State Treasurer, Art Van Furniture-Conner
Inc v .................................................................. 467
State Treasurer, Art Van Furniture Inc v ......... 467
State Treasurer, Menard Inc v ........................... 467
State Treasurer, Sears Roebuck & Co v ............ 467
Sturgis v Sturgis .................................................. 706
T
ABLE OF
C
ASES
R
EPORTED
v
P
AGE
T
TALH, In re .......................................................... 594
Treasury (Dep’t of), Menard Inc v ..................... 467
Treasury (Dep’t of), Podmajersky v ................... 153
Tyra v Organ Procurement Agency of
Michigan ........................................................... 208
U
UAW v Green ....................................................... 246
V
Van Hook-Williams, Grimes v ............................. 521
Z
Zaremba Equip, Inc v Harco National Ins Co .. 7
vi 302 M
ICH
A
PP
C
OURT OF
A
PPEALS
C
ASES
LIVINGSTON CAPITAL LLC v STATE TAX COMMISSION
LARIAT, INC v STATE TAX COMMISSION
Docket Nos. 310125 and 311287. Submitted July 9, 2013, at Lansing.
Decided July 25, 2013, at 9:00 a.m.
Livingston Capital LLC owned two parcels of property in Green Oak
Charter Township used for the warehousing, packaging, process-
ing, and distribution of consumer goods. The township assessor
notified Livingston Capital that the property would be classified as
industrial real property for the 2010 tax year. Livingston Capital
did not protest the classification, which the board of review
accepted for the tax rolls. The assessor subsequently appealed the
acceptance of this classification to the State Tax Commission
(STC), seeking to have the property reclassified as commercial real
property. The STC granted the appeal and changed the classifica-
tion for the 2010 tax year from industrial real property to
commercial real property. Livingston Capital appealed in the
Ingham Circuit Court. The court, Clinton Canady III, J., ordered
the property’s classification changed back to industrial real prop-
erty, concluding that the assessor did not have standing to appeal
the acceptance of his own classification and that, as a result, the
STC did not have jurisdiction to change the classification. The STC
appealed.
Lariat, Inc., owned a parcel of property in Green Oak Charter
Township. The township assessor notified Lariat that the property
would be classified as industrial real property for the 2010 tax year.
Lariat did not protest the classification, which the board of review
accepted for the tax rolls. The assessor subsequently appealed the
acceptance of this classification to the STC, seeking to have the
property reclassified as commercial real property. The STC
granted the appeal and changed the classification of the property
for the 2010 tax year from industrial real property to commercial
real property. Lariat appealed in the Livingston Circuit Court. The
court, Michael P. Hatty, J., ordered the classification of the prop-
erty changed back to industrial real property, concluding among
other holdings that the property was clearly used for industrial
purposes under MCL 211.34c(2)(d) or, alternatively, that the STC
lacked jurisdiction to hear the assessor’s appeal because the
L
IVINGSTON
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APITAL V
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AX
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OMM
1
classification had not first been protested to the board of review.
The STC appealed, and the Court of appeals consolidated the
appeals.
The Court of Appeals held:
The circuit courts did not err by determining that the STC
lacked jurisdiction to hear the assessor’s appeals in these cases.
MCL 211.34c(6) provides that an owner of any assessable property
who disputes the classification of that property must notify the
assessor and may protest the assigned classification to the March
board of review and that an owner or assessor may appeal the
decision of that board by filing a petition with the STC not later
than June 30 of the tax year. Thus, what may be appealed to the
STC is only the decision stemming from a protest to the March
board of review by the owner who disputes the classification of the
property. An assessor cannot appeal a classification to the STC if
the property owner has not protested the classification to the
board of review. Because plaintiffs never protested the classifica-
tions of their properties to the respective boards of review, no
appealable decisions under MCL 211.34c(6) were ever made.
Affirmed.
T
AXATION —
P
ROPERTY
T
AX —
S
TATE
T
AX
C
OMMISSION —
A
PPEALS OF
P
ROPERTY
C
LASSIFICATION BY
A
SSESSOR
.
MCL 211.34c(6) provides that an owner of any assessable property
who disputes the classification of that parcel must notify the
assessor and may protest the assigned classification to the March
board of review and that an owner or assessor may appeal the
decision of that board by filing a petition with the State Tax
Commission not later than June 30 of the tax year; an assessor
cannot appeal a classification to the commission if the property
owner has not first protested the classification to the board of
review.
Honigman Miller Schwartz and Cohn LLP (by
Michael B. Shapiro and Jason Conti) for Livingston
Capital LLC.
Neal D. Nielsen for Lariat, Inc.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Richard A. Bandstra, Chief Legal
Counsel, and Michael R. Bell and Matthew B. Hodges,
2 302 M
ICH
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1 [July
Assistant Attorneys General, for the State Tax Commis-
sion, Robert Naftaly, Douglas Roberts, and Barry Simon
in Livingston Capital.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Richard A. Bandstra, Chief Legal
Counsel, and Matthew B. Hodges, Assistant Attorney
General, for the State Tax Commission, Robert Naftaly,
Douglas Roberts, and Barry Simon in Lariat.
Before: S
AWYER
,P.J., and M
ETER
and D
ONOFRIO
,JJ.
P
ER
C
URIAM
. In Docket No. 310125, defendant State
Tax Commission (STC) appeals the April 16, 2012,
order of the Ingham Circuit Court classifying plaintiff
Livingston Capital LLC’s property as industrial real
property. In Docket No. 311287, the STC appeals the
June 22, 2012, order of the Livingston Circuit Court
classifying Lariat, Inc.’s property as industrial real
property.
In Docket No. 310125, Livingston Capital owns two
parcels of real property in Green Oak Charter Township
that host a facility used by Gordon Food Service, Inc.,
for the warehousing, packaging, processing, and distri-
bution of consumer goods. In 2010, Livingston Capital
was notified by the township assessor that the property
would be classified as industrial real property for the
2010 tax year, as it had been in previous years. Living-
ston Capital did not protest the classification, and the
classification was accepted to the tax rolls by the board
of review.
On April 27, 2010, however, the assessor appealed the
acceptance of his industrial real property classification
to the STC, seeking to have the property reclassified as
commercial real property. On August 16, 2010, the STC
granted the appeal and changed the classification of the
2013] L
IVINGSTON
C
APITAL V
T
AX
C
OMM
3
property for the 2010 tax year from industrial real
property to commercial real property, holding that
“[w]arehouses are commercial”.
Following the STC’s decision, Livingston Capital
appealed to the circuit court. The circuit court issued an
oral opinion changing the classification of the property
back to industrial real property for the 2010 tax year.
The circuit court had multiple reasons for its decision,
including that the assessor did not have standing to
appeal the acceptance of his own classification and that
as a result, the STC did not have jurisdiction to change
the accepted classification.
In Docket No. 311287, Lariat owns a parcel of real
property in Green Oak Charter Township that is leased
by three commercial entities, Fonson, Inc., McDonald
Modular Solutions, Inc., and CMA Heavy Haul, Inc. In
2010, Lariat was notified by the township assessor that
the property would be classified as industrial real
property for the 2010 tax year, as it had been in previous
years. Lariat did not protest the classification, and the
classification was accepted to the tax rolls by the board
of review.
On April 27, 2010, however, the assessor appealed the
acceptance of his industrial real property classification
to the STC, seeking to have the property reclassified as
commercial real property. On August 16, 2010, the STC
granted the appeal and changed the classification of the
property for the 2010 tax year from industrial real
property to commercial real property, holding that
“[e]xcavating contractors are commercial.”
Following the decision, Lariat appealed the decision
to the circuit court. The circuit court issued an opinion
changing the classification of the property back to
industrial real property for the 2010 tax year. In sup-
port, the circuit court found that the record showed the
4 302 M
ICH
A
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1 [July
property was clearly used for industrial purposes under
MCL 211.34c(2)(d), as it was used for the removal or
processing of gravel, stone, or mineral ore. Alterna-
tively, the circuit court found that the STC had lacked
jurisdiction to hear the township assessor’s appeal, as
the classification of the property had not first been
protested to the board of review, and that the order
reclassifying the property as commercial real property
was invalid because of a lack of the statutorily required
signature and seal.
These cases are resolved by an issue common to both
cases: whether an assessor can appeal to the STC when
the classification has not been protested at the board of
review. We conclude that an assessor cannot do so.
Appeals to the STC concerning property classifica-
tions are governed by MCL 211.34c(6), which reads, in
relevant part, as follows:
An owner of any assessable property who disputes the
classification of that parcel shall notify the assessor and
may protest the assigned classification to the March board
of review. An owner or assessor may appeal the decision of
the March board of review by filing a petition with the state
tax commission not later than June 30 in that tax year.
Although no protests were ever made to the boards of
review by the property owners, the assessor still ap-
pealed the classification of the properties. The STC
asserts that the appeals were still proper under MCL
211.34c(6) because the appeals were of the decisions of
the boards of review to accept the assessor’s original
classification of the properties under MCL 211.34c(1).
This interpretation, however, runs counter to the plain
and unambiguous language of MCL 211.34c(6).
The primary goal of statutory interpretation is to “as-
certain the legislative intent that may reasonably be in-
ferred from the statutory language.” “The first step in that
2013] L
IVINGSTON
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APITAL V
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AX
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OMM
5
determination is to review the language of the statute
itself.” Unless statutorily defined, every word or phrase of
a statute should be accorded its plain and ordinary mean-
ing, taking into account the context in which the words are
used. We may consult dictionary definitions to give words
their common and ordinary meaning. When given their
common and ordinary meaning, “[t]he words of a statute
provide ‘the most reliable evidence of its intent....’”
[Krohn v Home-Owners Ins Co, 490 Mich 145, 156-157; 802
NW2d 281 (2011) (citations omitted; alterations in origi-
nal.]
Under MCL 211.34c(6), an assessor is permitted to
appeal “the” decision of the board of review, not “a”
decision. In context,
1
the reference to “the decision” in
the second sentence of the provision refers back to the
decision stemming from a protest by the “owner of any
assessable property who disputes the classification of
that parcel.” The STC’s interpretation would divorce
the term “the decision” from the context in which it is
placed and require that “the decision” include the board
of review’s decision to accept a classification onto the
property tax rolls under MCL 211.34c(1).
Therefore, because plaintiffs never protested the
classification of the their properties to the respective
boards of review, no appealable decisions under MCL
211.34c(6) were ever made. The circuit courts did not
err by determining that the STC lacked jurisdiction to
hear the assessor’s appeals in these cases.
Affirmed. Plaintiffs may tax costs.
S
AWYER
,P.J., and M
ETER
and D
ONOFRIO
, JJ., con-
curred.
1
See Atkins v Suburban Mobility Auth for Regional Transp, 492 Mich
707, 716-717; 822 NW2d 522 (2012).
6 302 M
ICH
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1 [July
ZAREMBA EQUIPMENT, INC v HARCO NATIONAL INSURANCE
COMPANY
Docket Nos. 298221 and 298755. Submitted May 16, 2013, at Traverse
City. Decided July 25, 2013, at 9:05 a.m. Leave to appeal sought.
Zaremba Equipment, Inc., brought an action in the Otsego Circuit
Court against Harco National Insurance Company and Patrick
Musall, who was Harco’s agent, after a fire destroyed plaintiff’s
building and its contents. The complaint alleged negligence, fraud,
innocent misrepresentation, breach of contract, promissory estop-
pel, and other claims, all related to the adequacy of the coverage
provided in the insurance policy and representations that Musall
made or failed to make concerning that coverage. The jury found
for plaintiff on all of its claims and awarded the damages that
plaintiff requested. The court, Dennis F. Murphy, J., denied defen-
dants’ motions for judgment notwithstanding the verdict (JNOV)
and a new trial. Defendants appealed. The Court of Appeals,
B
ORRELLO
and G
LEICHER
, JJ. (O’C
ONNELL
,P.J., concurring in part and
dissenting in part), affirmed in part, reversed in part, vacated in
part, and remanded for a new trial. 280 Mich App 16 (2008)
(Zaremba I). On remand, a second trial was held before a new jury.
The new jury found Musall negligent and that he had made an
innocent misrepresentation, but rejected plaintiff’s fraud claim.
The jury further determined that plaintiff’s comparative negli-
gence was a proximate cause of its damages. The trial court, Janet
M. Allen, J., rejected defendants’ motions for JNOV and a new trial
and entered judgment for plaintiff in the amount of $1,245,264.40
plus interest. The court subsequently awarded $134,739.33 in
costs and attorney fees. Defendants appealed and plaintiff cross-
appealed.
The Court of Appeals held:
1. Under the law of the case doctrine, if an appellate court has
ruled on a legal question and remanded the case for further
proceedings, the legal questions thus determined by the appellate
court will not be differently determined on a subsequent appeal in
the same case when the facts remain materially the same. Defen-
dants’ argument that plaintiff’s failure to read its policy doomed
its negligence claim was rejected in Zaremba I. The central holding
2013] Z
AREMBA
E
QUIP V
H
ARCO
N
AT
’
L
I
NS
7
in Zaremba I identified plaintiff’s failure to read its policy as
comparative fault to be weighed against Musall’s negligence. That
determination constituted the law of the case. The parties also
litigated plaintiff’s innocent misrepresentation claim in accor-
dance with the analysis set out in Zaremba I. Thus, the trial court
correctly denied defendants’ motion for JNOV based on plaintiff’s
failure to read its insurance policy.
2. Under the common law, an insurance agent whose principal
is the insurance company owes no duty to advise a potential
insured about any coverage. However, there is an exception to the
general no-duty rule when an event occurs that alters the nature
of the relationship between the agent and the insured. A special
relationship may arise, pursuant to which an agent acquires
greater duties to the customer, when (1) the agent misrepresents
the nature or extent of the coverage offered or provided, (2) an
ambiguous request is made that requires a clarification, (3) an
inquiry is made that may require advice and the agent, though he
need not, gives advice that is inaccurate, or (4) the agent assumes
an additional duty by either express agreement with or promise to
the insured. Contrary to defendants’ argument, in this case
abundant evidence supported plaintiff’s claim that Musall stepped
from the role of order taker into that of insurance advisor. By
making coverage recommendations, misrepresenting the coverage
provided in the policy, and assuming an obligation to appraise or
survey the property to calculate its replacement value, Musall
established a duty of care different from that of an ordinary
insurance agent. Accordingly, the trial court properly rejected
defendants’ challenge to the sufficiency of the evidence.
3. An attorney’s comments do not normally constitute grounds
for reversal unless they reflect a deliberate attempt to deprive the
opposing party of a fair and impartial proceeding. Reversal is only
required when the prejudicial statements reveal an intent to
inflame or otherwise prejudice the jury, or to deflect the jury’s
attention from the issues involved. Despite breaches of the norms
of professional conduct by counsel for both sides, the record does
not indicate any studied purpose to prejudice the jury or to divert
the jury’s attention from the merits of the case. Nor did the
objections, speeches, comments, and arguments of counsel qualify
as inflammatory, extreme, or deliberately misleading. Further,
much of the challenged conduct by plaintiff’s counsel occurred
outside the presence of the jury. The arguments made only to the
trial court did not deprive defendants of a fair trial. A “speaking
objection” is an objection that contains more information than the
judge needs to rule on the objection. In this case, the trial court
8 302 M
ICH
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7 [July
recognized the problem of speaking objections, admonished coun-
sel to avoid them, and properly instructed the jury that the
lawyers’ statements and arguments were not evidence. Accord-
ingly, defendants’ claim that speaking objections tainted the jury’s
ability to fairly decide the case was without merit. Nor did
plaintiff’s counsel’s comments on Musall’s credibility deprive
defendants of a fair trial given that the record confirmed that
Musall was less than entirely truthful and forthcoming when
answering some of plaintiff’s counsel’s questions. Although plain-
tiff’s counsel succeeded in improperly suggesting to the jury that
the insurance policy was difficult to understand, contrary to the
holding in Zaremba I, the trial court’s instructions on the matter
did not permit the jury to accept that excuse for failing to read and
understand the policy. Thus, to the extent that plaintiff’s counsel
made incursions into improper territory, the comments consti-
tuted harmless error. The trial court did not err by denying
defendants’ motion for JNOV based on plaintiff’s counsel’s alleged
misconduct.
4. Only when verdicts are so logically and legally inconsistent
that they cannot be reconciled will they be set aside. In this case,
the jury determined that plaintiff was 30 percent comparatively
negligent with regard to the general negligence count and 20
percent comparatively negligent with regard to the innocent
misrepresentation claim. The trial court properly rejected defen-
dants’ objection to the proposed judgment on the basis of the
differing percentages of comparative negligence given the distinct
arguments that were made concerning comparative fault. The jury
reasonably could have concluded that plaintiff bore a higher
percentage of comparative fault with regard to the general negli-
gence claims because of plaintiff’s failure to read its policy, and a
lesser percentage for providing Musall with incorrect information
for the appraisal. The trial court did not err by declining to
recognize only the greater finding of comparative fault when
entering judgment on the alternative theories of recovery or in
declining to order a new trial for that reason.
5. Under MCR 2.403(O)(1), if a party has rejected a case
evaluation and the action proceeds to verdict, that party must pay
the opposing party’s actual costs unless the verdict is more
favorable to the rejecting party than the case evaluation. The trial
court did not err in its award of case evaluation sanctions. The
costs generated in connection with both trials were necessitated by
the rejection of the case evaluation because they arose after the
rejection. The cost of two trials was part of the risk assumed by
defendants when they rejected the evaluation.
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6. With regard to plaintiff’s cross-appeal, the law of the case
doctrine did not preclude the jury from assessing plaintiff’s
comparative fault related to the innocent misrepresentation claim.
The law of the case doctrine is a general rule that applies only if
the facts remain materially the same. Because the facts adduced at
the second trial differed meaningfully from those adduced at the
first trial, the trial court properly submitted to the jury the
question of plaintiff’s comparative fault for Musall’s misrepresen-
tation.
Affirmed.
Howard & Howard Attorneys PLLC (by Michael F.
Wais and Michael O. Fawaz) for plaintiff.
John R. Monnich, PC (by John R. Monnich), and
Jacobs and Diemer, PC (by John P. Jacobs and Timothy
A. Diemer), for defendants.
Before: R
ONAYNE
K
RAUSE
,P.J., and G
LEICHER
and
B
OONSTRA
,JJ.
P
ER
C
URIAM
. This insurance coverage dispute arose in
2003, when a fire consumed the primary building occu-
pied by plaintiff Zaremba Equipment, Inc. Defendant
Harco National Insurance Company sold Zaremba the
insurance policy in effect at the time of the fire. The
policy stated limits of $525,000 for the building and
$700,000 for its contents. After the loss, Zaremba
learned that it would cost far more than those limits to
replace the building and its contents.
Zaremba brought suit, complaining that defendant
Patrick Musall, an insurance agent employed solely by
Harco, negligently advised Zaremba regarding the ap-
propriate amount of replacement coverage for the busi-
ness and misrepresented the nature and extent of the
coverage purchased. Zaremba further alleged that Mus-
all improperly appraised the building at a value far
lower than its actual replacement cost, and committed
10 302 M
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fraud. Defendants denied that Musall performed an
appraisal and asserted that had Zaremba bothered to
read its policy, it would have understood its clearly
stated coverage limits. In 2009, an Otsego County jury
found in Zaremba’s favor and awarded the corporation
$2,353,778 exclusive of costs, attorney fees, interest,
and case evaluation sanctions.
This Court reversed and remanded for a new trial,
holding that the trial court had erroneously refused to
instruct the jury that Zaremba bore a duty to read its
insurance policy. Zaremba Equip, Inc v Harco Nat’l Ins
Co, 280 Mich App 16; 761 NW2d 151 (2008) (Zaremba
I). Our opinion explained that Zaremba’s admitted
failure to read its policies could constitute comparative
negligence. We directed that a second jury assess the
comparative fault of both Zaremba and Musall when
considering Zaremba’s negligence claims.
A properly instructed jury found Musall negligent
and determined that Musall had made an innocent
misrepresentation, but rejected Zaremba’s fraud claim.
The jury further determined that Zaremba’s compara-
tive negligence constituted a proximate cause of its
damages. The trial court entered judgment for Zaremba
in the amount of $1,245,264.40 plus interest, and sub-
sequently awarded $134,739.33 in costs and attorney
fees.
Defendants raise a number of appellate challenges to
the verdict and postverdict awards. Defendants insist
that Zaremba’s failure to read the policy should have
operated as a complete bar to recovery, that Musall
owed Zaremba no duty of care, and that Zaremba’s
counsel repeatedly distracted the jury by injecting irrel-
evancies, including the length and interpretive diffi-
culty of the insurance policy. Zaremba cross-appeals,
arguing that the jury should not have been permitted to
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consider Zaremba’s comparative negligence in relation
to Musall’s innocent misrepresentations.
The law of the case disposes of defendants’ first two
arguments, and the trial court’s oft-repeated instruc-
tion that the lawyers’ comments were not evidence
defeats the third. Because facts emerged during the
second trial substantiating defendants’ argument that
Zaremba bore responsibility for Musall’s innocent mis-
representation, the trial court correctly ruled that a
comparative negligence analysis applied to this claim.
Although the trial was far from perfect, we find no
errors warranting reversal.
I. UNDERLYING FACTS AND PROCEEDINGS
The evidence developed during the second trial gen-
erally duplicated our previous description of the rela-
tionship between Zaremba and Musall:
Musall testified that since 1998 or 1999 he had met with
Jimmy Zaremba,
[
1
]
plaintiff’s business manager, at least twice
a year to discuss plaintiff’s insurance needs, Harco’s available
coverages, and potential policy limits. Musall admitted that at
some point before plaintiff accepted Harco’s 2002-2003 insur-
ance proposal, Jimmy presented a “Customgard John Deere
Insurance Proposal” prepared for plaintiff. The Deere insur-
ance proposal included a “Building Coverage” limit of
$450,000 and identified an applicable “Extended Recovery
Endorsement” that included “Guaranteed Replacement
Cost.” Musall conceded that Jimmy had asked him to “meet
or beat” the Deere proposal and expressed a desire “to be fully
insured.” Musall utilized a software program called “Marshall
& Swift” to prepare a “cost estimate” for reconstructing
plaintiff’s building, which calculated a building value of
$494,449. According to Jimmy, Musall represented that Mar-
shall & Swift was “the leader in the industry, and this is what
1
For the sake of clarity, we will follow the lead of Zaremba I and refer
to James “Jimmy” Zaremba by his nickname in this opinion.
12 302 M
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insurance agents use all the time to come up with evaluations
on a building.” Although Musall did not recall telling Jimmy
about the Marshall & Swift estimate, he admitted that after
its preparation, plaintiff increased its building coverage limit
to $525,000.
Musall also conceded that he made specific recommen-
dations in response to Jimmy’s request that plaintiff be
“fully insured.” He admitted that he would have recom-
mended more coverage if he had known that it would cost
$1,192,000 to replace the building because the “intent was
there” to insure plaintiff “for the cost of replacing the
building.” Musall further explained that if Jimmy had
asked for $1.5 million of building coverage, Musall would
have advised him that “I didn’t feel he needed that much
coverage.”
Jimmy recalled that in July 2001 a car had run into a
nearby restaurant, killing some customers. Jimmy heard
that the restaurant owner “had a holy nightmare” with his
insurance company and realized that if something hap-
pened to plaintiff’s building, zoning issues would preclude
rebuilding in the same location. At about the same time,
Jimmy learned of Deere’s “guaranteed replacement cover-
age” and consulted Musall to discuss the adequacy of
plaintiff’s coverage and to communicate his desire that
plaintiff be “fully insured.” Jimmy asked Musall to com-
pare plaintiff’s 2001 Harco coverage, which included an 80
percent coinsurance provision that obligated plaintiff to
cover 20 percent of its own insured losses, with the Deere
proposal. According to Jimmy, Musall represented that for
$500 less than the Deere quotation, Harco would provide a
building policy limit of $525,000 and that “with the re-
placement costs, we would be fully insured.” [Id. at 23-24.]
Based on these facts, we held that Zaremba estab-
lished that Musall and Zaremba shared a “special
relationship” pursuant to Harts v Farmers Ins Exch,
461 Mich 1, 10-11; 597 NW2d 47 (1999). Using Harts as
our guide, we described the parties’ respective duties of
care as follows: “[W]hen an insurance agent elects to
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provide advice regarding coverage and policy limits, the
agent owes a duty to exercise reasonable care. The
insured has a duty to read its insurance policy and to
question the agent if concerns about coverage emerge.”
Zaremba I, 280 Mich App at 36.
Given our holding, we anticipated that the second
trial would generally focus on whether: (1) Musall
negligently appraised the replacement costs of Zarem-
ba’s building and contents, (2) Musall misrepresented
that the Zaremba policy included “replacement cover-
age,” (3) Musall negligently failed to provide Zaremba
with the replacement coverage it had ordered, and (4)
Zaremba was comparatively negligent. With regard to
the last issue, we stated, “A jury could reasonably
conclude that plaintiff’s failure to read its 2002-2003
policy qualified as a proximate cause of its failure to
obtain clarification regarding the Harco policy limits
before the February 2003 fire.” Id.at35.
Our opinion drew a distinction between Zaremba’s
claims arising from Musall’s advice and representations
and Musall’s appraisal of the building and its contents.
Regarding the appraisal allegation, we found Zaremba’s
duty to read the policy inapplicable. We explained,
“Plaintiff’s policy and related documents do not con-
tain... any information that might have called into
question the accuracy of the Marshall & Swift compu-
tation or Musall’s allegedly negligent representation
that plaintiff could replace its building within the limits
of the policy.” Id. We pointed out that logically, Zarem-
ba’s failure to read its insurance policy “does not
represent a proximate cause” of any damages awarded
under the negligent appraisal theory of liability. Id.
In the second trial, the court’s comparative fault and
proximate cause instructions tracked the Model Civil
Jury Instructions. Neither party objected to the sub-
14 302 M
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stance of the instructions.
2
The jury rejected that de-
fendants had committed fraud, but upheld Zaremba’s
claims of negligence and innocent misrepresentation
and awarded damages in the amount of $1,556,448 on
each theory. The jury assessed Zaremba as 30 percent
comparatively negligent in connection with its negli-
gence claims and 20 percent comparatively negligent
with regard to the innocent misrepresentation claim.
The trial court determined that Zaremba was entitled
to a single satisfaction based on the alternative theories
of recovery and awarded the higher of the two resulting
figures—$1,245,265.40.
II. ANALYSIS
A. JUDGMENT NOTWITHSTANDING THE VERDICT BASED ON
ZAREMBA’S FAILURE TO READ THE POLICY
Defendants first contend that the trial court should
have granted their motion for judgment notwithstand-
ing the verdict (JNOV) because Zaremba’s failure to
read its policy negated defendants’ tort liability. The
“inexorable duty to read” an insurance policy, defen-
dants argue, defeats as a matter of law an insured’s
subjective beliefs about policy provisions. Defendants
further insist that given the unambiguous policy lan-
guage, Zaremba failed to prove that it reasonably relied
on Musall’s misrepresentations. We review de novo a
trial court’s ruling on a motion for JNOV. Sniecinski v
Blue Cross & Blue Shield of Mich, 469 Mich 124, 131;
666 NW2d 186 (2003). “A motion for...JNOVshould
be granted only if the evidence viewed in [the light most
favorable to the nonmoving party] fails to establish a
claim as a matter of law.” Id.
2
As discussed in greater detail later in this opinion, Zaremba objected
to the trial court’s decision to instruct the jury at all regarding Zaremba’s
comparative fault for Musall’s innocent misrepresentations.
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Defendants’ arguments fly in the face of the law of
the case. Our central holding in Zaremba I identified
Zaremba’s failure to read its policy as comparative fault
to be weighed against Musall’s negligence. This deter-
mination constituted the law of the case. It governed
the retrial, and it governs this appeal. Defendants have
offered no reason that we should disregard the law of
the case, and we decline to do so.
Under the law of the case doctrine, “if an appellate
court has passed on a legal question and remanded the
case for further proceedings, the legal questions thus
determined by the appellate court will not be differently
determined on a subsequent appeal in the same case
where the facts remain materially the same.” CAF
Investment Co v Saginaw Twp, 410 Mich 428, 454; 302
NW2d 164 (1981). Defendants invite us to adopt pre-
cisely the same argument they made in Zaremba I, that
failure to read the policy doomed Zaremba’s negligence
claims. We need not rehash the reasons we rejected that
view; they are plainly spelled out in the first opinion.
Similarly, we decline to revisit our holding regarding
Zaremba’s innocent misrepresentation claim. We previ-
ously explained that Zaremba “cannot prevail on a
fraud or innocent misrepresentation theory premised
on Musall’s representations regarding the policy limits”
because the policy unambiguously set forth those limits.
Zaremba I, 280 Mich App at 40. However,
plaintiff’s fraud and innocent misrepresentation claims
also encompassed Musall’s statements regarding the accu-
racy of the Marshall & Swift computation and whether
plaintiff could actually replace its building for $525,000.
Neither the policy language nor any documents provided
by defendants regarding the policy would have shed light
on the accuracy of the Marshall & Swift estimate or
Musall’s representation that the $525,000 coverage limit
constituted adequate replacement coverage. Therefore, the
16 302 M
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record could support plaintiff’s claims that Jimmy reason-
ably relied on Musall to accurately evaluate the cost of
replacing the building and also reasonably relied on Mus-
all’s representation that the Marshall & Swift calculation
constituted a reasonable assessment of the building’s re-
placement cost. [Id. at 40-41.]
Our review of the record reveals that the parties liti-
gated Zaremba’s innocent misrepresentation claim in
accordance with our analysis; we detect no error.
B. JUDGMENT NOTWITHSTANDING THE VERDICT BASED ON
INSUFFICIENT EVIDENCE
Next, defendants assert that Zaremba failed to prove
that Musall and Jimmy had a special relationship under
Harts, and that the trial court should have granted
JNOV on this ground. According to defendants, the
special relationship theory of liability permitted by the
trial court converts insurance agents into insurance
advisors and appraisal experts, imposes on agents a
duty to know the prospective insured’s business better
than the prospective insured, and improperly extends
an agent’s duty to “serving as a fact-checker, a business
advisor, appraisal expert or financial planner.” “When
reviewing a claim that there was insufficient evidence
presented in a civil case, this Court must view the
evidence in a light most favorable to the plaintiff and
give the plaintiff the benefit of every reasonable infer-
ence.” Scott v Illinois Tool Works, Inc, 217 Mich App 35,
41; 550 NW2d 809 (1996).
The trial court rejected defendants’ sufficiency of the
evidence challenge, finding that viewed in the light
most favorable to Zaremba, “Musall held himself out to
be an expert who could advise Zaremba as to the proper
coverage,” and having done that, “Musall assumed a
duty... to provide such proper coverage as was re-
quested....”Weagree with the trial court.
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“[U]nder the common law, an insurance agent whose
principal is the insurance company owes no duty to
advise a potential insured about any coverage.” Harts,
461 Mich at 8. Insurance agents, who function “essen-
tially” as “order takers,” should be distinguished from
insurance counselors, who function as advisors. Id.at9,
citing MCL 500.1232. However, the Supreme Court
carved out an exception to the general “no duty” rule
“when an event occurs that alters the nature of the
relationship between the agent and the insured.” Id.at
9-10. A special relationship may arise, pursuant to
which an agent acquires greater duties to the customer,
when
(1) the agent misrepresents the nature or extent of the
coverage offered or provided, (2) an ambiguous request is
made that requires a clarification, (3) an inquiry is made
that may require advice and the agent, though he need not,
gives advice that is inaccurate, or (4) the agent assumes an
additional duty by either express agreement with or prom-
ise to the insured. [Id. at 10-11.]
In this case, abundant evidence supported that Mus-
all stepped from the role of order taker into that of
insurance advisor. Musall admitted that he was “an
expert in insuring truck and auto dealerships” such as
Zaremba, and that he “specifically made recommenda-
tions to Jim Zaremba as to what he needed...interms
of insurance to be fully insured[.]” Musall conceded that
Jimmy had requested enough insurance to replace the
building, and the “[t]he intent was there” to cover “the
cost of replacement of the building.” To that end,
Musall agreed that Jimmy asked him to perform an
“appraisal.” Instead, Musall performed a “cost esti-
mate” using the Marshall & Swift computer program,
which calculated the replacement cost at just under
$525,000. This evidence, supplied by Musall himself,
supports that Musall assumed a duty to advise Zaremba
18 302 M
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regarding the coverage needed to replace its building,
thereby creating a special relationship.
Jimmy explained that his “replacement coverage”
discussion with Musall began when Jimmy presented
Musall with an insurance quotation from John Deere.
According to Jimmy, the Deere quotation characterized
the coverage as “guaranteed replacement costs.” Jimmy
asked Musall to “meet or beat” the Deere coverage,
which Musall agreed to do. Jimmy testified that Musall
then undertook a “survey” of Zaremba’s building,
which he witnessed someone accomplish by touring the
facility and taking measurements and photos. Musall’s
correspondence with Harco supports this allegation; the
“Input Data Listing” form completed by Musall identi-
fies Musall as having “[s]urveyed” the property on
January 9, 2002.
Jimmy recalled asking Musall whether Zaremba was
insured for full replacement coverage in the event of a
total loss, and that Musall reassured him that full
replacement coverage was in place. This evidence but-
tressed Zaremba’s “special relationship” claim by sup-
porting that Musall misrepresented the nature and
extent of the coverage. See Harts, 461 Mich at 10-11. By
making coverage recommendations, misrepresenting
the coverage provided in the policy, and assuming the
obligation to “appraise” or “survey” the property to
calculate its replacement value, Musall established a
duty of care quite different from that of an ordinary
insurance agent.
Defendants insist that pursuant to Casey v Auto-
Owners Ins Co, 273 Mich App 388; 729 NW2d 277
(2006), “the Duty to Read trumped whatever subjective
hopes the insured might have about different coverage
amounts after their initial purchasing decision proved
to be inadequate.” Defendants’ reliance on Casey is
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misplaced. In Casey, this Court rebuffed an insured’s
argument that the insurer bore an obligation to deter-
mine the correct amount of insurance for the dwelling
in question. Casey explained that even if the insured
“reasonably expected that such a duty or guarantee
would be imposed by the policy, that expectation cannot
overcome the actual terms of the policy.” Id. at 397.
Notably, the insurance agent in Casey neither ren-
dered coverage advice nor misrepresented coverage
terms. Rather, Casey presented a garden-variety rela-
tionship between an insurance agent and his client.
This Court specifically noted that “the policy did not
impose any duty on Auto-Owners to accurately appraise
the property, nor did it include any guarantee that the
coverage provided would be adequate to cover any loss
that might occur.” Id. Unlike the plaintiffs in Casey,
Zaremba enjoyed a special relationship with its insur-
ance agent, Musall, that gave rise to different obliga-
tions. Accordingly, we reject the argument that Zarem-
ba’s “special relationship” proofs were insufficient to
establish Musall’s duty to advise with due care.
C. JUDGMENT NOTWITHSTANDING THE VERDICT BASED ON
ATTORNEY MISCONDUCT
Defendants next argue that Michael Wais, Zaremba’s
attorney, committed misconduct that denied defendants
a fair trial. Defendants describe Wais’s misconduct as
“speaking objections,”
3
“running commentary” on the
evidence, repeated accusations that the defense wit-
nesses were “liar[s],” and statements designed to por-
tray the policy as too difficult for a layperson to under-
stand. Wais’s goal, defendants urge, was to encourage
3
A “speaking objection” is an objection that contains more information
than the judge needs to rule on the objection. Speaking objections are
often intended to influence the jury or the witness.
20 302 M
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the jury to nullify Zaremba’s duty to read the policy.
The trial court denied defendants’ motion for a new
trial on this ground, finding that Wais’s conduct “does
not rise to the level of irregularity or misconduct under
MCR 2.611(A)(1)(a) or MCR 2.611(A)(1)(b) that would
justify the granting of a new trial.”
We review for an abuse of discretion a trial court’s
general conduct of a trial. See In re King, 186 Mich App
458, 466; 465 NW2d 1 (1990). This standard of review
also applies to a court’s decision on a motion for a new
trial, McManamon v Redford Charter Twp, 273 Mich
App 131, 138; 730 NW2d 757 (2006), and a court’s
evidentiary decisions, Price v Long Realty, Inc, 199
Mich App 461, 466; 502 NW2d 337 (1993). An abuse of
discretion occurs when the decision results in an out-
come falling outside the range of principled outcomes.
Radeljak v DaimlerChrysler Corp, 475 Mich 598, 603;
719 NW2d 40 (2006). An attorney’s comments do not
normally constitute grounds for reversal unless they
reflect a deliberate attempt to deprive the opposing
party of a fair and impartial proceeding. Hunt v Free-
man, 217 Mich App 92, 95; 550 NW2d 817 (1996).
“Reversal is required only where the prejudicial state-
ments” reveal a deliberate attempt to inflame or other-
wise prejudice the jury, or to “deflect the jury’s atten-
tion from the issues involved.” Id.
Defendants correctly observe that Wais engaged in
speaking objections, commented occasionally on the
evidence, and proposed an incorrect legal theory con-
cerning Zaremba’s duty to read its insurance policy.
Defense counsel also engaged in speaking objections,
commented negatively on the trial court’s handling of
the case, and vigorously argued a patently incorrect
legal theory regarding the admissibility of the Deere
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proposal.
4
This was a hard-fought case during which the
trial court occasionally lost control of the attorneys, and
the attorneys frequently ignored the trial court’s re-
peated admonitions to behave themselves. Despite the
breaches of professional conduct norms revealed in the
trial transcript, we perceive no “studied purpose to
prejudice the jury” or to divert the jury’s attention from
the merits of the case. Kern v St Luke’s Hosp Ass’n of
Saginaw, 404 Mich 339, 354; 273 NW2d 75 (1978). Nor
did the objections, speeches, comments, and arguments
qualify as inflammatory, extreme, or deliberately mis-
leading.
Defendants have directed us to a number of places in
the transcript where, in defendants’ estimation, Wais
engaged in improper and prejudicial conduct. Many of
the record citations involve argument conducted out-
side the presence of the jury. We decline to find that
arguments made only to the trial court deprived defen-
dants of a fair trial.
We first address defendants’ complaint concerning
speaking objections. Evidentiary objections that go be-
yond recitation of the pertinent rule of evidence being
invoked risk prejudice. See MRE 103(c) (“In jury cases,
proceedings shall be conducted, to the extent practi-
cable, so as to prevent inadmissible evidence from being
suggested to the jury by any means, such as making
statements or offers of proof or asking questions in the
hearing of the jury.”). Both sides engaged in speaking
4
Defense counsel argued that the Deere proposal constituted inadmis-
sible hearsay despite that Zaremba did not propose the document’s
introduction to prove its truth. Whether the Deere quotation was “true”
or “accurate” bore no relevance to the case. Zaremba sought to use it only
to corroborate that Jimmy asked Musall to “meet or beat” the specific
coverage set forth in the proposal. We mention this evidentiary issue
solely to illustrate that counsel may vigorously argue a legally incorrect
proposition without depriving the opposing side of a fair trial.
22 302 M
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objections. The trial court admonished both counsel to
avoid speaking objections. We have reviewed each and
every alleged speaking objection identified by defen-
dants and find no comments or arguments rising to the
level of professional misconduct, or that likely engen-
dered unfair prejudice. Moreover, the trial court recog-
nized the problem and dealt with it emphatically when
denying defendants’ motion for a mistrial on this
ground:
The Court: Well, I want to make a statement that the
first day of trial I had both of you in chambers, and I told
you I was not going to tolerate interruptions and rude
behavior. And I agree with you, [defense counsel], there
ha[ve] been interruptions, and you’ve been rude. Yeah, it’s
been way --
[Defense Counsel]: I -- I agree with all that. I said that.
The Court: It’s been way too contentious between the
two of you attorneys. Now, I understand that you -- things
can get a little bit rough on cross-exam. We had a little bit
of [an] emotional situation yesterday, when I -- oh, my gosh,
was it John Zaremba was on the stand? And I understand
that there is emotion in this case, but it shouldn’t be being
generated by the attorneys.
I think I can give an instruction to the jury to attempt to
cure this, and I appreciate your motion.
***
The Court: All right. The other rule is you’re not to
approach the bench. If you want to state an objection, state
it from counsel table or the podium. We can’t have all this
interacting with the Court and the witnesses and so forth.
So I’m -- I’ll deny your motion, and does everybody
understand the ground rules because I will be sanctioning
attorneys if -- if there were -- if there are violations?
[Counsel]: (No response)
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The Court: You do not interrupt the witness. You do not
interrupt the attorney. You let them finish their question or
their answer. You state simply and precisely the reason for
your objection. I’ll permit counsel to counter with a re-
sponse, and then, the Court will rule. And once I rule,
that’s it.
After admonishing counsel, the trial court instructed
the jury as follows:
The Court: All right. Members of the jury, I’m going to
give you a few instructions again just to clarify something.
As I told you in the beginning, statements by attorneys
are not evidence. Questions by attorneys are not evidence.
Certainly, what they state in their objections are not
evidence. Only the witnesses’ answers are evidence if we’re
talking about a live witness or the exhibits are evidence.
I want you to disregard anything that does not comport
with what you’ve heard coming out of the witness stand or
exhibits, any statements made by the attorneys in this
matter. I’ve outlined for them the procedure I want them to
follow in the future as far as objection procedure and so
forth.
Certainly, my rulings also are not in favor or against any
party. You should not consider that as any opinion that I
may have as to the facts of this case because you are the
sole judges of the facts.
If I were -- If I do sustain an objection to a question for
whatever legal reason, I don’t want you to speculate on
what the answer would have been.
Okay. Does everybody understand all that?
Jurors: (Positive response)
The Court: Okay. And as far as any statements of the
law, you follow the law as I give it to you not as stated by
the attorneys. Okay? You can listen to the attorneys as to
their understanding of the law, but if it conflicts with --
with what I tell you is the law, you have to follow what I tell
you. Okay?
24 302 M
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Jurors: (Positive response)
The Court: All right. You may proceed.
The trial court repeated this instruction at the con-
clusion of the case:
As I told you before, the lawyers’ statements and
arguments are not evidence. They are only meant to help
you understand the evidence and each side’s legal theories.
The lawyers’ questions to witnesses are also not evidence.
You should consider these questions only as they give
meaning to the witnesses’ answers. You should only accept
things the lawyers say that are supported by the evidence
or by your own common sense and general knowledge.
“Jurors are presumed to follow their instructions, and
instructions are presumed to cure most errors.” People
v Abraham, 256 Mich App 265, 279; 662 NW2d 836
(2003). Given the forceful manner in which the trial
court handled the “speaking objection” problem, we
find no merit in defendants’ claim that speaking objec-
tions tainted the jury’s ability to fairly decide this case.
Defendants next challenge as misconduct Wais’s fre-
quent allegations that defense witnesses “lied” or were
“liar[s].” Credibility was very much at stake in this
case. Musall denied appraising Zaremba’s property,
denied that he promised to procure replacement cover-
age, and recollected several pertinent conversations
differently than Jimmy. Throughout Wais’s cross-
examination of Musall, Wais successfully impeached
Musall with trial exhibits and the testimony Musall
gave during the first trial. The record confirms that
Musall was less than entirely truthful and forthcoming
when answering some of Wais’s questions. The trial
court observed that Musall’s testimony had not been
wholly consistent and concluded that Wais’s comments
on Musall’s truthfulness did not constitute an unsub-
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stantiated attack. The trial court’s reasoning was sound
and we decline to disturb it.
Defendants’ most substantial argument relates to
Wais’s insistence during the trial that Zaremba’s failure
to read the policy did not qualify as comparative negli-
gence because the policy was difficult to understand.
Wais introduced this theme in his opening statement,
without objection:
And one of the excuses that you’re going to hear from
the other stuff [sic] is that Jim Zaremba should have read
his insurance policy. And I’ll tell you why that doesn’t get
us anywhere anyway later. But for this claim, there’s not
going to be any -- and the Judge is going to instruct you as
to the law. It’s either he did it wrong, and if he did, we win,
or if he didn’t, we lose. If all the defense is about they
should have read the insurance polic[y], and I’ll get to that
again, do not apply to this claim. It’s already been ruled
upon as a matter of law, and the Judge will tell you that.
So when you’re hearing about this stuff about, you
know, you should have read the policy, just look at this.
Can’t you figure it out? Look at this other document. Can’t
you read that and all the stuff that they’re going to try to
attack my client with? None of that applies because rightly
reading it you wouldn’t know that he didn’t do it. You can
read it all you want, and it doesn’t say I lied to you when I
told you that I did the appraisal.
That’s why if you find that he did not do the appraisal
that he said he would do -- oh, he has a very good excuse for
the appraisal. [Emphasis added.]
In Zaremba I, we emphasized that Zaremba bore a
legal duty to read its policy, and that its failure to do so
could qualify as comparative negligence. We also re-
jected the notion that the stated policy limits “lacked
clarity or harbored ambiguity.” Zaremba I, 280 Mich
App at 34 n 8. Our opinion further declared that
because the policy language had no bearing on Zarem-
26 302 M
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ba’s “negligent appraisal” theory of liability, the com-
parative negligence analysis did not apply to that claim.
Id.at35.
To the extent Wais referred to the appraisal theory
when calling into question the jury’s ability to “figure
[the policy] out,” he did not run afoul of this Court’s
ruling. At other times, however, Wais crossed the line.
For example, later in his opening statement Wais
declared, “This is the insurance policy other than the
pictures. It is double-sided. It goes on and on for lots
of pages. If you can figure this out, the next time I do
a case I may hire you. Because I’ll tell you, I couldn’t
figure it out.” On another occasion, Wais told the
court (in the jury’s presence) that he intended to
argue that because Harco’s claims adjuster had con-
ceded that the “lawn and garden” portion of the
policy was difficult to understand, Zaremba “wasn’t
comparatively negligent for not reading it because if
he would have read it he wouldn’t understand it any
better[.]” This argument was improper for two rea-
sons. First, the lawn and garden coverage had noth-
ing to do with the issues presented during the second
trial. Second, this Court instructed that, with regard
to the relevant policy provisions, the policy limits
were clearly stated without ambiguity.
Despite his announced intention to argue that the
policy was too confusing to be understood by Za-
remba, Wais apparently thought better of it by the
time of the closing arguments. The only comment
that referred to the policy was an accurate and
unobjectionable statement: “There’s not a single
document that if you read it a hundred times, if you
hire the smartest brains in the world..., nobody
could find a single document that says, if you read
this, you’ll see that you were not fully insured. The
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document doesn’t exist.” Wais refrained from arguing
that the policy was generally confusing or overly long.
Moreover, Jimmy admitted during cross-examination
that defendants had provided the coverage stated in
the policy.
At the conclusion of the case the trial court properly
instructed the jury:
Now, as part of Plaintiff’s duty, the Plaintiff is obligated
to read the insurance policies and raise questions about the
coverage within a reasonable time after the policies are
issued. If the Plaintiff does not read the policies, he is
charged with knowledge of the terms and conditions of the
insurance policies.
Although Wais had succeeded in suggesting to the
jury that the policy was difficult to understand, the
trial court’s instructions did not permit the jury to
adopt this excuse for failing to read and understand
it.
Wais’s incursions into improper territory do not
warrant a new trial. His comments were isolated, brief,
and appear to have played no part in the jury’s verdict.
Even assuming that Wais deliberately mischaracterized
our previous opinion while making arguments to the
trial court or questioning witnesses, his comments
constituted harmless error.
D. INCONSISTENT VERDICTS
Next, defendants challenge as “completely [i]nconsis-
tent” the jury’s verdict that Zaremba was 30 percent
comparatively negligent as to the general negligence
count and only 20 percent comparatively negligent with
regard to the innocent misrepresentation claim. Defen-
dants contend that these verdicts cannot be logically
reconciled except by assigning the higher comparative
28 302 M
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negligence finding to the whole verdict. The trial court
rejected defendants’ objection to the proposed judgment
on this ground, reasoning:
The jury was certainly given two separate causes of
action requiring separate proofs. The proofs justified the
jury’s allocation of fault both for the negligence claim and
the innocent misrepresentation claim. While the Court has
not been given an appellate case exactly on point, this
Court concludes that the jury verdict in this case is not
inconsistent and irreconcilable and is supported by the
evidence, the jury instructions and the arguments of the
parties.
The trial court properly rejected defendants’ objec-
tion to the proposed judgment based on the differing
percentages of comparative negligence assigned to Za-
remba’s differing theories of liability. By harmonizing
the jury’s comparative fault verdicts, the trial court
abided by the fundamental principle that “[o]nly where
verdicts are so logically and legally inconsistent that
they cannot be reconciled will they be set aside[.]”
Granger v Fruehauf Corp, 429 Mich 1, 9; 412 NW2d 199
(1987). Moreover, the Court Rules do not provide an
avenue to a new trial based on an inconsistency or
incongruity in the jury’s conclusions. Kelly v Builders
Square, Inc, 465 Mich 29, 39; 632 NW2d 912 (2001).
Zaremba advanced and the jury considered several
species of negligence claims. One set of general neg-
ligence allegations encompassed whether Musall (a)
negligently failed to procure the insurance coverage
Zaremba requested and (b) negligently appraised
Zaremba’s building and contents. A second set of
claims, denoted “innocent misrepresentation,” con-
cerned whether Musall falsely represented that (a)
the coverage stated in the policy was adequate to
replace the building and its contents and (b) the
Marshall & Swift appraisal constituted a reasonable
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assessment of the building’s replacement cost. With
regard to each of these liability theories, defendants
countered with comparative negligence arguments.
Concerning Musall’s representations and his failure
to procure enough coverage, defendants contended
that Zaremba should have read its policy. Regarding
the appraisal, defendants maintained that Jimmy
supplied Musall with incorrect information.
Given these distinct arguments concerning compara-
tive fault, we find no inconsistency in the jury’s verdict.
The jury reasonably could have concluded that Zaremba
bore a higher percentage of comparative fault with
regard to the general negligence claims based on Zarem-
ba’s failure to read its policy, and a lesser percentage for
providing Musall with incorrect information for the
appraisal. Because the different percentage findings of
comparative negligence can be reconciled, the trial
court did not err by declining to recognize only the
greater of them when entering judgment on the alter-
native theories of recovery, or in declining to order a
new trial for that reason.
E. CASE EVALUATION SANCTIONS
Defendants next challenge the trial court’s award of
case evaluation sanctions in connection with both the
original trial and the retrial. Defendants insist that
they should be responsible for case evaluation sanctions
in connection with the retrial only. We find no error. The
trial court followed applicable caselaw by including the
first trial in its award of case evaluation sanctions.
MCR 2.403(O)(1) states, “If a party has rejected an
evaluation and the action proceeds to verdict, that party
must pay the opposing party’s actual costs unless the
verdict is more favorable to the rejecting party than the
case evaluation.” Before the first trial, a unanimous
30 302 M
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case evaluation panel awarded Zaremba $1,200,000,
which defendants rejected. The case then proceeded to
a verdict. This Court upheld the jury’s verdict of
$496,185 for breach of contract, $258,554 in penalty
interest, and $42,481 for recovery of insurance pro-
ceeds. Zaremba I, 280 Mich App at 25. On retrial the
jury awarded Zaremba an additional $1,556,448, re-
duced by comparative negligence to $1,245,264.40. Za-
remba claimed entitlement to sanctions because defen-
dants rejected the case evaluation. The trial court
awarded sanctions in the amount of $67,271.50 in
connection with the retrial of the tort claims, and, over
defendants’ objections, $67,467.83 in connection with
the first trial.
In Severn v Sperry Corp, 212 Mich App 406, 417; 538
NW2d 50 (1995), this Court held that “fees generated in
connection with both trials were ‘necessitated by the
rejection’ of the mediation evaluation because they
arose after the rejection,” adding, “[t]he cost of two
trials was part of the risk assumed by [the rejecting
party] when it rejected the mediation evaluation.” De-
fendants concede, “binding precedent is currently
against our position,” but, citing the conflict rule, MCR
7.215(J), urge this Court to initiate the process for
overruling itself. We decline this invitation.
F. ZAREMBA’S CROSS-APPEAL
Zaremba challenges the jury’s verdict in two re-
spects. First, Zaremba argues, the law of the case
doctrine precluded the jury from assessing Zaremba’s
comparative fault related to the innocent misrepresen-
tation claim. Zaremba next contends that even if the
jury properly evaluated whether Zaremba bore any
comparative fault for Musall’s innocent misrepresenta-
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tion, the 20 percent reduction applied only to the claim
for the building itself, and not its contents.
Zaremba has also misapprehended the law of the case
doctrine. Because the facts of the second case differed
meaningfully from those of the first, the trial court
properly submitted the question of Zaremba’s compara-
tive fault for Musall’s misrepresentation to the jury.
Further, Zaremba failed to preserve its challenge to the
application of comparative fault to its building contents
claim, and for that reason, we reject it.
Zaremba’s argument stems from the following por-
tions of Zaremba I:
[P]laintiff’s liability claims arising from Musall’s negli-
gent appraisal of its building do not logically lend them-
selves to a comparative negligence analysis. In addition to
plaintiff’s insufficient coverage claim, plaintiff contended
that Musall negligently calculated the replacement value of
its building. Plaintiff’s policy and the related documents do
not contain, however, any information that might have
called into question the accuracy of the Marshall & Swift
computation or Musall’s allegedly negligent representation
that plaintiff could replace its building within the limits of
the policy. Thus, under the negligent appraisal theory of
liability, plaintiff’s own failure to read its insurance docu-
ments does not represent a proximate cause of its damages.
***
. . . [P]laintiff’s fraud and innocent misrepresentation
claims also encompassed Musall’s statements regarding
the accuracy of the Marshall & Swift computation and
whether plaintiff could actually replace its building for
$525,000. Neither the policy language nor any documents
provided by defendants regarding the policy would have
shed light on the accuracy of the Marshall & Swift estimate
or Musall’s representation that the $525,000 coverage limit
constituted adequate replacement coverage. [Zaremba I,
280 Mich App at 35, 40.]
32 302 M
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Zaremba asserts that given this language, the law of the
case required the trial court to refrain from submitting
to the jury the question of Zaremba’s comparative fault
for Musall’s innocent misrepresentation.
“The law of the case doctrine is a general rule that
applies only if the facts remain substantially or mate-
rially the same.” People v Phillips (After Second Re-
mand), 227 Mich App 28, 31-32; 575 NW2d 784 (1997).
Unlike in the first trial, evidence presented to the
second jury indicated that Jimmy supplied Musall with
an incorrect number for the square footage of the
building. Musall contended that this erroneous number
contributed to his errant calculation of the building’s
replacement value. This evidence sufficed to support a
comparative negligence instruction, and to avoid appli-
cation of the law of the case doctrine.
While Zaremba objected to submitting the question
of comparative fault for any innocent misrepresenta-
tion to the jury, Zaremba raised no argument that
comparative negligence could not apply to Musall’s
evaluation of the value of the building contents. Za-
remba could have requested a special verdict distin-
guishing between the damages awarded for the building
and those awarded for the contents. It failed to do so.
Accordingly, Zaremba has waived any error.
Affirmed.
R
ONAYNE
K
RAUSE
,P.J., and G
LEICHER
and B
OONSTRA
,
JJ., concurred.
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PEOPLE v JANES
Docket No. 312490. Submitted July 17, 2013, at Detroit. Decided July 25,
2013, at 9:10 a.m.
John Wesley Janes was charged in the 93rd District Court with
owning a dangerous animal that caused a serious injury, MCL
287.323(2), after Janes’s pit bull attacked and bit a child. The
court, Mark E. Luoma, J., determined that MCL 287.323(2) was a
strict-liability offense and bound Janes over to the Alger Circuit
Court. Janes moved to quash the bindover and dismiss the charge,
arguing that MCL 287.323(2) required a criminal intent. The
circuit court, William W. Carmody, J., agreed that MCL 287.323(2)
was not a strict-liability offense, but nevertheless denied the
motion to quash the bindover, concluding that the bindover was
valid because there was evidence that Janes had been negligent or
reckless and that this mens rea would be part of any jury
instruction on the charge. The prosecution appealed by leave
granted.
The Court of Appeals held:
1. Courts have generally assumed that when a legislature
codifies a common-law crime, the statute includes a requirement
of criminal intent. Accordingly, the omission of any mention of
criminal intent in a statute must not be construed as eliminating
the element from the crime. Instead, courts will infer that element
unless the statute contains an express or implied indication that
the legislative body wanted to dispense with it.
2. The circuit court did not err when it determined that the
Legislature’s silence with respect to any criminal intent being
required under MCL 287.323(2) did not render that offense a
strict-liability crime. In 1988 PA 426, MCL 287.321 through
287.323, the Legislature enacted a statutory scheme to deal with
dangerous animals, providing criminal penalties for the owners of
dangerous animals that injure or kill persons. MCL 287.323(2)
provides that the owner of an animal that meets the definition of
a dangerous animal in MCL 287.321(a) is guilty of a felony if the
animal attacks a person and causes serious injury other than
death. The Legislature’s use of the present tense in the statute
indicated that to establish a violation of MCL 287.323(2), the
34 302 M
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prosecution must prove beyond a reasonable doubt that (1) the
defendant owned or harbored a dog or other animal, (2) the dog or
other animal met the definition of a dangerous animal in MCL
287.321(a) before and throughout the incident at issue, and (3) the
animal attacked a person causing serious injury, as defined in MCL
287.321(e), other than death. Because the Legislature did not
specifically address any particular criminal intent that must be
proved to establish a violation of MCL 287.323(2) and the simple
omission of the appropriate phrase regarding intent from the
statute is not, by itself, sufficient to justify dispensing with an
intent requirement, the element of criminal intent must be
inferred absent an indication that the Legislature expressly or
impliedly intended to dispense with that element.
3. In construing statutes that create public-welfare or regula-
tory offenses, courts may infer from silence that the legislative
body did not intend to require proof of mens rea because public-
welfare offenses generally apply to items whose character is such
that a reasonable person would understand that he or she may be
held strictly liable for his or her possession of the item. As long as
a defendant knows that he or she is dealing with a dangerous
device of a character that places the defendant in responsible
relation to a public danger, the defendant should be alerted to the
probability of strict regulation, and the assumption is that the
legislative body intended to place the burden on the defendant to
ascertain whether the conduct fell within the statute. A court
should avoid construing a statute to dispense with criminal intent
if doing so would criminalize a broad range of apparently innocent
conduct, and dangerousness alone does not put the average person
on notice of the potential for strict liability. A significant portion of
Michigan’s citizens own dogs, and almost all dogs have the
potential to inflict injury, that is, they are in some general sense
dangerous. The danger posed by dogs in the general sense is not
such that it alerts an individual to probable regulation that might
render him or her a felon if the dog injures a person. Thus, rather
than enacting a public-welfare offense, the Legislature instead
intended to impose criminal liability under MCL 287.323(2) only
when the owner knew that his or her animal possessed the
characteristics that brought it within the statutory definition of a
dangerous animal.
4. MCL 287.323(3) and (4) provide criminal penalties when an
owner has an animal that was previously adjudicated to be a
dangerous animal and causes an injury that is not serious or allows
the animal to run at large. MCL 287.321(a) also includes excep-
2013] P
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tions to the definition of “dangerous animal.” The statutory
scheme as a whole, however, does not show a legislative intent to
dispense with proof of criminal intent.
5. The circuit court did err by imposing a negligence standard.
Janes also incorrectly contended that the prosecution must prove
that his gross negligence caused the injuries at issue. While
caselaw has held that MCL 287.323(1) requires proof of the
defendant’s gross negligence in handling the animal that caused
the victim’s death, that holding was premised on the fact that MCL
287.323(1) provides that a person who violated it is guilty of
involuntary manslaughter, which was a common-law offense with
a criminal-intent element. None of the remaining sections in the
act refer impliedly or otherwise to negligent conduct. Accordingly,
the requisite intent element for a violation of MCL 287.323(2) is
that the owner knew that the dog or other animal met the
definition of a dangerous animal under MCL 287.321(a) before the
incident at issue.
Affirmed and remanded for further proceedings.
J
ANSEN
, J., dissenting, would have held that the Legislature
intended to make the criminal offense set forth in MCL
287.323(2) a strict-liability crime. The use of the present tense
in the definition of a dangerous animal in MCL 287.321(a)
suggests that an animal can meet the definition the very first
time it bites or attacks a person or another dog. There is no
indication that an animal must have a known propensity for
dangerousness to meet the definition, nor does the statute
require that the animal have previously bitten or attacked a
person or another dog. Accordingly, an animal may constitute a
dangerous animal the very first time it bites or attacks a person
or another dog. MCL 287.323(2) similarly does not require that
the owner of the animal know of the animal’s propensity for
dangerousness. The only elements of the crime are (1) that the
animal meets the definition of a dangerous animal and (2) that
the animal attacks a person and causes serious injury other
than death. MCL 287.323(2) is a public-welfare statute, and the
criminal offense set forth in it contains no scienter requirement
because the Legislature intended to shift the burden of acting at
hazard to those who own and possess animals in this state.
Accordingly, Judge J
ANSEN
would have affirmed the circuit
court’s denial of Janes’s motion to quash, but reversed the
circuit court’s warning to the prosecution that it will have to
prove Janes’s criminal intent at trial.
36 302 M
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C
RIMINAL
L
AW —
I
NTENT —
S
TRICT
-L
IABILITY
O
FFENSES —
D
ANGEROUS
A
NIMALS
C
AUSING
I
NJURY —
E
LEMENTS
.
MCL 287.323(2), which provides that the owner of an animal that
meets the definition of a dangerous animal in MCL 287.321(a) is
guilty of a felony if the animal attacks a person and causes serious
injury other than death, is not a strict-liability offense; a convic-
tion under MCL 287.323(2) requires proof beyond a reasonable
doubt (1) that the defendant owned or harbored a dog or other
animal, (2) that the dog or other animal met the definition of a
dangerous animal in MCL 287.321(a) before and throughout the
incident at issue, (3) that the owner knew that the dog or other
animal met the definition of a dangerous animal before the
incident, and (4) that the animal attacked a person and caused a
serious injury, as defined in MCL 287.321(e), other than death.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, and Karen A. Bahrman, Prosecuting
Attorney, for the people.
Kathryn S. Denholm for defendant.
Before: B
ORRELLO
,P.J., and J
ANSEN
and M. J. K
ELLY
,JJ.
M. J. K
ELLY
, J. In this interlocutory criminal appeal,
the prosecution appeals by leave granted the circuit
court’s order denying defendant John Wesley Janes’s
motion to quash his bindover on the charge of owning a
dangerous animal causing serious injury. See MCL
287.323(2). Although the circuit court denied Janes’s
motion to quash, it also determined that the statute at
issue was not a strict-liability offense, as the prosecutor
contended, and it warned the prosecutor that she would
have to prove at trial that Janes had a negligent
criminal intent. On appeal, the prosecution argues that
the circuit court erred when it imposed a criminal-
intent requirement on the statutory language because
the Legislature intended MCL 287.323(2) to be a strict-
liability offense. We conclude that, although the statute
is silent on criminal intent, that silence is not disposi-
tive. The statute must be interpreted in light of the
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O
PINION OF THE
C
OURT
background principles of the common law and, when
read in that light, this offense is not a strict-liability
offense; rather, the statute requires proof that the
owner knew that his or her animal was a dangerous
animal within the meaning of the dangerous animal
statute before the incident at issue. For this reason, we
affirm the circuit court’s order and remand this case for
further proceedings consistent with this opinion.
I. BASIC FACTS
At Janes’s May 2012 preliminary examination, Carol
Karr testified that she assisted Cheryl Anderson with
caring for Anderson’s ailing mother. Karr stated that
she helped Anderson at her home, which was in the
country, several days each week. A few months before
the incident at issue, Janes, and later his adult son,
moved into Anderson’s home. Janes was recovering
from knee surgery at the time.
Anderson owned a cocker spaniel and, after Janes
moved in with Anderson, he went to a local shelter and
acquired a pit bull. Karr said that Anderson and Janes
would let the dogs out into the yard and they would
play. However, she saw the pit bull get aggressive with
the cocker spaniel; he would “stand over the [c]ocker
and not let the [c]ocker get up....”Shestated that the
pit bull had bitten the cocker spaniel, but did not injure
it.
Karr testified that, on the day at issue, Anderson had
gone to work, but called to say that she expected a
friend’s child to visit. Anderson told Karr that the child
would be dropped off by the school bus. Karr said she
was on the phone when she saw the child coming up the
driveway and went onto the porch to greet her. At the
time, the dogs were on the wheelchair ramp in the front
yard.
38 302 M
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O
PINION OF THE
C
OURT
Karr stated that the cocker spaniel jumped on the
child, but ceased when Karr told it to stop. At that
point, the pit bull jumped up and bit the child’s face and
then her arm. Karr told the person she was speaking
with on the phone to call 911 as she grabbed the child
and lifted her up and away from the pit bull. The pit
bull then began to attack the child’s legs: “He bit her,
grabbed her, started shaking her. He was pulling her out
of my arms.” She described the dog’s demeanor as “very
fierce.” Karr said a neighbor heard her screaming for
help and came over and used a shovel to separate the
dog from the child, but even then the dog would “spin
around and attack again.” Eventually, Janes’s son got
the dog into the house and police officers arrived. Karr
said that, after the dog was removed, she could see that
the child had injuries to her face and arm, but she said
the injuries to the child’s leg were the most severe: “her
knee was torn up bad right to the bone.”
Karr testified that the pit bull had not, to her
knowledge, threatened or attacked any people during
the six weeks that she knew it. She did, however, testify
that Janes’s son told her that the pit bull had bitten
him.
Bill Carlson testified at the preliminary examination
that he was a deputy with the Alger County Sheriff’s
Department. He investigated the pit bull and deter-
mined that the dog had been surrendered to the local
shelter on April 23, 2012, and adopted by Janes on April
27, 2012. He stated that the incident occurred on May
18, 2012.
Carlson said that the staff at the shelter were sur-
prised to hear that the dog was involved in an attack
because they thought the “dog was a friendly dog.” He
also contacted the previous owner and learned that the
previous owner had taken the dog in as a “rehab” that
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O
PINION OF THE
C
OURT
had been “abused prior to her receiving it.” The previ-
ous owner had indicated that she was wary of the dog,
but she did not report any attacks or biting incidents.
Indeed, when she surrendered the dog she signed a
statement that the “ ‘animal has not bitten anyone to
my knowledge in the past 14 days.’ ” The previous
owner told Carlson that she surrendered the dog be-
cause she could no longer give it the time it needed.
Carlson related that, when he went to the shelter to
ensure that the dog was properly secured, it charged
him.
After hearing the testimony at the preliminary ex-
amination, the district court determined that MCL
287.323(2) was a strict-liability offense and that there
was sufficient evidence to bind Janes over.
In June 2012, Janes moved to quash the bindover
and dismiss the charge against him. Specifically, Janes
argued that MCL 287.323(2) must be read to include
criminal intent and, because the prosecutor had failed
to present any evidence that he “caused the attack, had
any knowledge or notice of the dog’s dangerous nature,
or that [he] acted with gross negligence,” the charge
must be dismissed.
In an opinion and order entered in July 2012, the
circuit court agreed that MCL 287.323(2) was not a
strict-liability offense, but nevertheless denied the mo-
tion to quash the bindover and dismiss the charge. The
court explained that the bindover was valid because
there was evidence that Janes had been negligent or
reckless. It also stated that all “future proceedings shall
be conducted and tried with the understanding that”
this mens rea “shall be part and parcel of any jury
instruction on the charge.”
The prosecution then appealed to this Court by leave
granted.
40 302 M
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II. THE ELEMENTS OF MCL 287.323(2)
A. STANDARDS OF REVIEW
Whether the Legislature intended a statute to impose
strict liability or intended it to require proof of criminal
intent is a matter of statutory interpretation. People v
Quinn, 440 Mich 178, 185; 487 NW2d 194 (1992). This
Court reviews de novo the proper interpretation and
application of statutes. People v Cannon, 481 Mich 152,
156; 749 NW2d 257 (2008).
B. BACKGROUND PRINCIPLES ON CRIMINAL INTENT
Under Michigan’s common law, every conviction for
an offense required proof that the defendant committed
a criminal act (actus reus) with criminal intent (mens
rea). People v Likine, 492 Mich 367, 393; 823 NW2d 50
(2012); People v Tombs, 472 Mich 446, 451; 697 NW2d
494 (2005) (opinion by K
ELLY
, J.), citing People v Rice,
161 Mich 657, 664; 126 NW 981 (1910); Tombs, 472
Mich at 466 (T
AYLOR
, C.J., concurring), citing People v
Roby, 52 Mich 577, 579; 18 NW 365 (1884) (C
OOLEY
,
C.J.). Criminal intent can be one of two types: the intent
to do the illegal act alone (general criminal intent) or an
act done with some intent beyond the doing of the act
itself (specific criminal intent). People v Langworthy,
416 Mich 630, 639; 331 NW2d 171 (1982). Thus, when
a statute prohibits the willful doing of an act, the act
must be done with the specific intent to “bring about
the particular result the statute seeks to prohibit.”
People v Beaudin, 417 Mich 570, 575; 339 NW2d 461
(1983).
In contrast, a strict-liability offense is one in which
the prosecution need only prove beyond a reasonable
doubt that “the defendant committed the prohibited
act, regardless of the defendant’s intent and regardless
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of what the defendant actually knew or did not know.”
Likine, 492 Mich at 393. Our Supreme Court has
recognized that the Legislature can constitutionally
enact offenses that impose criminal liability without
regard to fault. Quinn, 440 Mich at 188. And whether
the Legislature intended to enact a strict-liability of-
fense is generally a matter of statutory interpretation.
Id. at 185-188. In determining whether the Legislature
intended to dispense with criminal intent, our Supreme
Court has adopted the analytical framework first stated
by the United States Supreme Court in Morissette v
United States, 342 US 246; 72 S Ct 240; 96 L Ed 288
(1952). See Quinn, 440 Mich at 185-188.
In Morissette, the Court recognized that the conten-
tion that a criminal act must normally be done with
criminal intent is “no provincial or transient notion”; it
“is as universal and persistent in mature systems of law
as belief in freedom of the human will and a consequent
ability and duty of the normal individual to choose
between good and evil.” Morissette, 342 US at 250. The
principle that an offender cannot be convicted of a
crime unless it is proved that there was a “concurrence
of an evil-meaning mind with an evil-doing hand” “took
deep and early root in American soil.” Id. at 251-252.
And for that reason, when legislatures began to codify
the common law, courts generally assumed that those
statutes included criminal intent:
As the state codified the common law of crimes, even if
their enactments were silent on the subject, their courts
assumed that the omission did not signify disapproval of
the principle but merely recognized that intent was so
inherent in the idea of the offense that it required no
statutory affirmation. [Id. at 252.]
For these reasons, courts will not lightly presume that
the Legislature intended to dispense with the criminal
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intent traditionally required at common law: “the omis-
sion of any mention of criminal intent” must not “be
construed as eliminating the element from the crime.”
Tombs, 472 Mich at 454 (opinion by K
ELLY
, J.), citing
Morissette, 342 US at 272-273. Instead, courts will
“infer the presence of the element unless a statute
contains an express or implied indication that the
legislative body wanted to dispense with it.” Tombs, 472
Mich at 454.
With these background principles in mind, we shall
now examine the elements of the statute at issue.
C. THE DANGEROUS-ANIMAL STATUTE
Whether the Legislature intended to impose strict
liability under MCL 287.323(2) is a matter of legislative
intent. Quinn, 440 Mich at 185. And determining leg-
islative intent, by necessity, must begin with a review of
the language actually used by the Legislature in draft-
ing the statute. People v Williams, 491 Mich 164, 172;
814 NW2d 270 (2012). When the statutory language is
clear and unambiguous, this Court must enforce it as
written. Id.
In 1988, the Legislature enacted a statutory scheme
to deal with dangerous animals. See 1988 PA 426,
enacting MCL 287.321 through 287.323, effective
March 30, 1989. As part of that scheme, the Legislature
provided criminal penalties for the owners of dangerous
animals that injure or kill persons. See MCL 287.323(1)
through (3). In this case, the prosecution charged Janes
with violating MCL 287.323(2), which penalizes the
owner of a dangerous animal that causes a serious
injury:
If an animal that meets the definition of a dangerous
animal in [MCL 287.321(a)] attacks a person and causes
serious injury other than death, the owner of the animal is
guilty of a felony, punishable by imprisonment for not more
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than 4 years, a fine of not less than $2,000.00, or commu-
nity service work for not less than 500 hours, or any
combination of these penalties.
To prove a violation of this statute, the prosecution
must prove beyond a reasonable doubt that the defen-
dant was an owner, which is defined to mean “a person
who owns or harbors a dog or other animal.” MCL
287.321(c). The prosecution must also prove that the
owner’s animal attacked a person and caused “serious
injury other than death” to that person. MCL
287.323(2); see also MCL 287.321(e) (defining “serious
injury” as “permanent, serious disfigurement, serious
impairment of health, or serious impairment of a bodily
function of a person”). Finally, the Legislature also
required the prosecution to prove that the animal was
one “that meets the definition of a dangerous animal.”
MCL 287.323(2).
By referring to an animal “that meets” the definition
of a dangerous animal at the time that the animal
“attacks a person,” the Legislature indicated that the
animal must meet the definition even before the attack
at issue. For that reason, it necessarily follows that the
prosecution cannot use the incident at issue to prove
that the animal was a dangerous animal. To hold
otherwise would be to rewrite the statute to state: If an
animal meets the definition of a dangerous animal in
MCL 287.321(a) by attacking a person and causes
serious injury other than death, the owner is guilty of a
felony. But the Legislature did not write the statute in
that way—it chose to require proof that the animal is
one “that meets” the definition and “attacks a person
and causes serious injury....” MCL 287.323(2). The
Legislature used the present tense for both “meet” and
“attack” in the conditional clause (if the animal
“meets” the definition and “attacks” a person) to show
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that the animal must meet the definition of a dangerous
animal before and throughout the attack giving rise to
criminal liability. Thus, the prosecution must prove
both that the animal qualified as a dangerous animal
before the incident at issue and continued to qualify as
a dangerous animal throughout the incident. MCL
287.321(a); MCL 287.323(2).
Consequently, we hold that, in order to establish that a
defendant violated MCL 287.323(2), the prosecution must
prove beyond a reasonable doubt that (1) the defendant
owned or harbored a dog or other animal, (2) the dog or
other animal met the definition of a dangerous animal
provided under MCL 287.321(a) before and throughout
the incident at issue, and (3) the animal attacked a person
causing serious injury, as defined under MCL 287.321(e),
other than death.
From a review of these elements, it is apparent that
the Legislature did not specifically address any particu-
lar criminal intent that must be proved in order to
establish a violation of MCL 287.323(2). But the
“ ‘simple omission of the appropriate phrase’ ” from the
statute is not, by itself, sufficient to “ ‘justify dispensing
with an intent requirement’....” Liparota v United
States, 471 US 419, 426; 105 S Ct 2084; 85 L Ed 2d 434
(1985), quoting United States v United States Gypsum
Co, 438 US 422, 438; 98 S Ct 2864; 57 L Ed 2d 854
(1978). Because we must construe the statute in light of
the background principles of the common law, “in which
the requirement of some mens rea for a crime is firmly
embedded,” Staples v United States, 511 US 600, 605;
114 S Ct 1793; 128 L Ed 2d 608 (1994), we must infer
that the Legislature intended some criminal intent in
the absence of an indication that the Legislature ex-
pressly or impliedly intended to dispense with that
element, Tombs, 472 Mich at 454 (opinion by K
ELLY
, J.);
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id. at 466 (T
AYLOR
, C.J., concurring). Recognizing that
this Court must infer the existence of a criminal intent
element unless the Legislature explicitly or implicitly
provided otherwise, the prosecution argues on appeal
that there is “abundant and compelling” evidence that
the Legislature intended to impose strict liability under
MCL 287.323(2).
1. PUBLIC-WELFARE STATUTE
The prosecution first argues that this offense is a
“public welfare offense,” which offenses do not tradition-
ally require any criminal intent. Specifically, the prosecu-
tion contends that mere ownership of an animal—because
animals are “potentially dangerous thing[s]”—is suffi-
cient to warrant the imposition of criminal liability with-
out regard to knowledge or intent when the animal causes
death or serious injury. For that reason, the prosecution
maintains, there need be no proof that the owner had
“prior knowledge of the animal’s particular propensity for
dangerousness” or otherwise acted negligently in han-
dling the animal.
In Staples, the petitioner appealed his conviction for
possessing an unregistered machine gun (an assault
rifle that had been modified to be capable of fully
automatic fire). Staples, 511 US at 603. On appeal, the
petitioner argued that, in order to be convicted of
possessing an unregistered machine gun, the prosecu-
tor had to prove that the petitioner “knew the weapon
he possessed had the characteristics that brought it
within the statutory definition of a machinegun.” Id.at
602. In considering the matter, the Supreme Court first
analyzed the statute and noted that it was silent with
respect to the criminal intent necessary to convict, but
this silence did not “necessarily suggest that Congress
intended to dispense with a conventional mens rea
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element, which would require that the defendant know
the facts that make his conduct illegal.” Id. at 605.
Similarly to the case here, the prosecution in Staples
argued that the statute at issue was a public-welfare
offense that regulated inherently dangerous devices—
firearms—and, for that reason, Congress’s silence on
criminal intent should not give rise to a “presumption
favoring mens rea.” Id. at 606.
The United States Supreme Court recognized that
the presumption in favor of imposing criminal intent as
an element does not invariably apply to public-welfare
or regulatory offenses: “In construing such statutes, we
have inferred from silence that Congress did not intend
to require proof of mens rea to establish an offense.” Id.
The Court explained that public-welfare offenses gen-
erally apply to items whose character is such that a
reasonable person would understand that he or she may
be held strictly liable for his or her possession of the
item:
In such situations, we have reasoned that as long as a
defendant knows that he is dealing with a dangerous device
of a character that places him “in responsible relation to a
public danger,” he should be alerted to the probability of
strict regulation, and we have assumed that in such cases
Congress intended to place the burden on the defendant to
“ascertain at his peril whether [his conduct] comes within
the inhibition of the statute.” Thus, we essentially have
relied on the nature of the statute and the particular
character of the items regulated to determine whether
congressional silence concerning the mental element of the
offense should be interpreted as dispensing with conven-
tional mens rea requirements. [Id. at 607 (citations omit-
ted; alteration in original).]
In rejecting the prosecution’s contention that the
presumption should not apply, the Supreme Court
noted that it typically avoids construing a statute to
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dispense with criminal intent “where doing so would
‘criminalize a broad range of apparently innocent con-
duct.’ ” Id. at 610, quoting Liparota, 471 US at 426. And
it stated that dangerousness alone would not put the
average person on notice of the potential for strict
liability:
Under [the prosecution’s] view, it seems that Liparota’s
concern for criminalizing ostensibly innocuous conduct is
inapplicable whenever an item is sufficiently dangerous—
that is, dangerousness alone should alert an individual to
probable regulation and justify treating a statute that
regulates the dangerous device as dispensing with mens
rea. But that an item is “dangerous,” in some general
sense, does not necessarily suggest, as the Government
seems to assume, that it is not also entirely innocent. Even
dangerous items can, in some cases, be so commonplace
and generally available that we would not consider them to
alert individuals to the likelihood of strict regulation. As
suggested above, despite their potential for harm, guns
generally can be owned in perfect innocence. [Staples, 511
US at 611.]
Here, it is beyond dispute that a significant portion
of Michigan’s citizens own animals, including a large
portion who own dogs. It is similarly beyond reason-
able dispute that almost all dogs have the potential to
inflict injury—that is, that dogs are, in “some general
sense,” dangerous. Id. But that being said, there has
been widespread lawful ownership of dogs in this
nation since before its founding. See id.at610
(finding it significant that there has been a “long
tradition of widespread lawful gun ownership” in the
United States). And the danger posed by dogs in the
general sense is not such as to “alert an individual to
probable regulation” that might render him or her a
felon if the dog injures a person. Id. at 611. As was the
case in Liparota and Staples, we are reluctant to
construe this statute in a way that “would impose
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criminal sanctions on a class of persons whose mental
state—ignorance of the characteristics of [the ani-
mal] in their possession—makes their actions en-
tirely innocent.” Id. at 614-615. To paraphrase the
United States Supreme Court, we find it unthinkable
that the Legislature intended to subject law-abiding,
well-intentioned citizens to a possible four-year
prison term if, despite genuinely and reasonably
believing their animal to be safe around other people
and animals, the animal nevertheless harms some-
one. See id. at 615. That is, we are reluctant to
impute to our Legislature the intent of dispensing
with the criminal-intent requirement when it would
“mean easing the path to convicting persons whose
conduct would not even alert them to the probability
of strict regulation” under the statute. Id. at 616.
Rather, we think that the Legislature intended to
impose criminal liability under MCL 287.323(2) only
when the owner knows that his or her animal pos-
sessed the characteristics that brought it within the
statutory definition. See id. at 602. Indeed, we find it
compelling that the Legislature has already demon-
strated that it can—when it wishes—draft a statute
that imposes strict liability on dog owners, but nev-
ertheless chose not to do so here. See MCL 287.351(1)
(“If a dog bites a person, without provocation...,
the owner of the dog shall be liable for any damages
suffered by the person bitten, regardless of the
former viciousness of the dog or the owner’s knowl-
edge of such viciousness.”). Accordingly, given the
Legislature’s failure to explicitly or impliedly provide
for strict liability, we hold that the prosecution must
prove beyond a reasonable doubt that the owner
knew that his or her animal was a dangerous animal
within the meaning of MCL 287.321(a) before the
incident at issue.
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2. STATUTORY SCHEME
We also do not agree with the prosecution’s conten-
tion that the statutory scheme as a whole evinces a
legislative intent to dispense with proof of criminal
intent. The prosecution relies heavily on the fact that
the Legislature provided for criminal penalties when an
owner has an “animal previously adjudicated to be a
dangerous animal” that causes an injury that is not
serious or allows that animal to “run at large.” MCL
287.323(3) and (4). Specifically, the prosecution con-
tends that, by requiring prosecutors to prove that the
animal was previously “adjudicated to be a dangerous
animal,” the Legislature indicated that those offenses
require a showing that the owner had prior knowledge
of the animal’s dangerous character, which, the pros-
ecution further maintains, is in stark contrast to the
requirements of MCL 287.323(1) and (2). However,
MCL 287.323(3) and (4) do not in fact require proof that
the owner had prior knowledge of the animal’s danger-
ous propensities—they only require that the animal,
without regard to the owner’s knowledge, has been
adjudicated as such. An owner may acquire an animal
that has been previously adjudicated to be a dangerous
animal within the meaning of MCL 287.321(a) without
any knowledge that the animal has been so adjudicated.
And the additional requirement that the animal has
been previously adjudicated to be a dangerous animal is
consistent with a scheme that imposes some level of
knowledge before criminal liability can attach; that is,
the Legislature might reasonably have determined that
an owner’s knowledge that an animal has bitten or
attacked someone in the past—without a specific adju-
dication of dangerousness—is sufficient by itself to
warrant the imposition of criminal liability when the
animal subsequently injures or kills another, see MCL
287.323(1) and (2), but that a higher showing is neces-
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sary to impose criminal liability for lesser injuries or for
allowing such an animal to run at large.
For similar reasons, we also do not agree that the
Legislature’s decision to include exceptions to the gen-
eral definition of a dangerous animal shows that it
intended to dispense with a criminal-intent element. As
we have already explained, the Legislature’s decision to
limit an owner’s liability to situations in which an
animal “that meets” the definition of a dangerous
animal “attacks” a person means that the prosecution
must prove, in relevant part, that the animal has
previously bitten or attacked a person. MCL 287.323(2);
MCL 287.321(a). The definition of a dangerous animal
is quite broad and could subject an owner to liability for
any harm subsequently caused by his or her animal
even when the prior incident was not representative of
the animal’s dangerous propensities. The Legislature
decided to exclude some animals from the definition
even though the animal may have previously bitten or
attacked a person. The Legislature determined that an
animal should not be deemed a dangerous animal if it
bit or attacked a trespasser, if the animal bit or attacked
a person who provoked or tormented it, or if the animal
was responding to protect a person. MCL 287.321(a)(i)
through (iii). The Legislature also determined that the
definition should not apply to livestock. MCL
287.321(a)(iv).
These exclusions are consistent with a legislative
intent to impose a criminal-intent element premised on
the owner’s knowledge that the animal meets the
definition of a dangerous animal. The Legislature could
reasonably have concluded that an owner who is aware
that his or her animal bit or attacked a person in the
past, but who knows that the bite or attack occurred
under unique circumstances not indicative of a danger-
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ous propensity, is not on notice that the animal presents
a higher degree of danger to the public at large. There-
fore, it could reasonably have believed that such an
owner should not be held criminally liable for any
future harm caused by that animal. In contrast, an
owner who knows that his or her animal has bitten or
attacked a person in the past and did so under circum-
stances that did not exclude the animal from the
definition provided under MCL 287.321(a) is on notice
that his or her animal poses a danger to the public and,
accordingly, the Legislature could reasonably have con-
cluded that the owner should be held criminally liable
for any future harm that the animal causes.
3. GROSS NEGLIGENCE
Although we agree that MCL 287.323(2) includes a
criminal-intent element, we do not agree with the
circuit court’s decision to impose a negligence standard.
We also disagree with Janes’s contention on appeal that
the prosecution must prove that his gross negligence
caused the injuries at issue. We acknowledge that this
Court has previously held that, in order to establish a
violation of MCL 287.323(1), the prosecution must
prove that the defendant’s gross negligence in handling
the animal caused the victim’s death. See People v
Trotter, 209 Mich App 244; 530 NW2d 516 (1995).
However, the Court in Trotter premised its holding on
the Legislature’s decision to state that a person who
violated that section was guilty of involuntary man-
slaughter, which was a common-law offense with a
criminal-intent element. Id. at 248-249.
In contrast to that section, none of the remaining
sections of 1988 PA 426 refer—impliedly or otherwise—to
negligent conduct. Rather, the primary focus in the re-
maining sections is on the defendant’s status as the owner
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of an animal that meets the definition of a dangerous
animal under MCL 287.321(a) and causes the speci-
fied injuries or engages in the proscribed behavior.
See MCL 287.323(2) through (4). Although it is clear
that the Legislature’s purpose in enacting these
sections was to prevent the harms identified in the
statute (i.e., to prevent dangerous animals from run-
ning at large or injuring persons), it is equally clear
that it sought to discourage these harms by placing
owners on notice that they will be held criminally
liable for any harms caused by their dangerous ani-
mals. Stated another way, it is evident to us that the
Legislature sought to curtail the ownership of dan-
gerous animals and not the negligent keeping or
handling of dangerous animals. Consequently, we
believe the most natural reading of this statutory
scheme is to impose liability on owners who know-
ingly keep a dangerous animal that causes the speci-
fied harm and to do so without regard to the reason-
ableness of the owner’s conduct.
III. CONCLUSION
The circuit court did not err when it determined that
the Legislature’s silence with respect to criminal intent
required under MCL 287.323(2) did not render that
offense a strict-liability crime. Michigan courts must
infer a criminal intent for every offense in the absence
of an express or implied Legislative intent to dispense
with criminal intent. Because there is no indication that
the Legislature intended to make MCL 287.323(2) a
strict-liability offense, we infer that the Legislature
intended to require the prosecution to prove criminal
intent. We further conclude that having the requisite
intent is proof that the owner knew that his or her
animal met the definition of a dangerous animal under
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MCL 287.321(a). For these reasons, we hold that the
prosecution must prove the following elements beyond
a reasonable doubt in order to convict Janes under MCL
287.323(2): (1) that Janes owned or harbored a dog or
other animal, (2) that the dog or other animal met the
definition of a dangerous animal provided under MCL
287.321(a) before and throughout the incident at issue,
(3) that he knew that the dog or other animal met the
definition of a dangerous animal within the meaning of
MCL 287.321(a) before the incident at issue, and (4)
that the animal attacked a person and caused a serious
injury other than death.
Affirmed and remanded for further proceedings con-
sistent with this opinion. We do not retain jurisdiction.
B
ORRELLO
,P.J., concurred with M. J. K
ELLY
,J.
J
ANSEN
,J.(dissenting). In my opinion, the Michigan
Legislature intended to make the criminal offense set
forth in § 3(2) of the dangerous animals act, MCL
287.323(2), a strict-liability crime. Therefore, I respect-
fully dissent.
Section 3(2) of the dangerous animals act, MCL
287.323(2), provides:
If an animal that meets the definition of a dangerous
animal in [MCL 287.321(a)] attacks a person and causes
serious injury other than death, the owner of the animal is
guilty of a felony, punishable by imprisonment for not more
than 4 years, a fine of not less than $2,000.00, or commu-
nity service work for not less than 500 hours, or any
combination of these penalties.
In turn, § 1(a) of the dangerous animals act, MCL
287.321(a), provides:
“Dangerous animal” means a dog or other animal that
bites or attacks a person, or a dog that bites or attacks and
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causes serious injury or death to another dog while the
other dog is on the property or under the control of its
owner. However, a dangerous animal does not include any
of the following:
(i) An animal that bites or attacks a person who is
knowingly trespassing on the property of the animal’s
owner.
(ii) An animal that bites or attacks a person who
provokes or torments the animal.
(iii) An animal that is responding in a manner that an
ordinary and reasonable person would conclude was de-
signed to protect a person if that person is engaged in a
lawful activity or is the subject of an assault.
(iv) Livestock.
The use of the present tense in § 1(a) suggests that
an animal can meet the definition of a “dangerous
animal” the very first time it “bites or attacks” a person
or another dog. Noticeably absent from § 1(a) is any
indication that, in order to meet the definition of a
“dangerous animal,” an animal must have a known
propensity for dangerousness. Nor does § 1(a) require
that the animal has previously bitten or attacked a
person or another dog. Accordingly, it is clear that an
animal may constitute a “dangerous animal” within the
meaning of § 1(a) the very first time it bites or attacks
a person or another dog.
Similarly, § 3(2) does not require that the owner of
the animal know of the animal’s propensity for danger-
ousness. The only elements enumerated in § 3(2) are (1)
that the animal “meets the definition of a dangerous
animal” and (2) that the animal “attacks a person and
causes serious injury other than death.” MCL
287.323(2).
I fully acknowledge that “where [a] criminal statute
is a codification of the common law, and where mens rea
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was a necessary element of the crime at common law,”
courts generally “will not interpret the statute as
dispensing with knowledge as a necessary element.”
People v Quinn, 440 Mich 178, 185-186; 487 NW2d 194
(1992); see also Morissette v United States, 342 US 246,
250-251; 72 S Ct 240; 96 L Ed 288 (1952). But unlike
§ 3(1) of the dangerous animals act, MCL 287.323(1),
which specifically refers to MCL 750.321, which in turn
codifies the prohibition against the common-law of-
fenses of voluntary and involuntary manslaughter, see
People v Trotter, 209 Mich App 244, 248-249; 530 NW2d
516 (1995), § 3(2) of the dangerous animals act is not a
codification of the common law. “[W]here the offense in
question does not codify a common-law offense and the
statute omits the element of knowledge or intent,” this
Court must examine “the intent of the Legislature to
determine whether it intended that knowledge be
proven as an element of the offense, or whether it
intended to hold the offender liable regardless of what
he knew or did not know.” Quinn, 440 Mich at 186
(emphasis added).
It is well established that, pursuant to the state’s
general police power, the Legislature may enact crimi-
nal statutes that punish certain conduct irrespective of
the actor’s intent, knowledge, or state of mind. Id.at
186-187; see also Shevlin-Carpenter Co v Minnesota,
218 US 57, 69-70; 30 S Ct 663; 54 L Ed 930 (1910).
Especially in the context of public-welfare legislation,
the Legislature may choose “to protect those who are
otherwise unable to protect themselves by placing ‘the
burden of acting at hazard upon a person otherwise
innocent but standing in responsible relation to a public
danger.’ ” Quinn, 440 Mich at 187, quoting United
States v Dotterweich, 320 US 277, 281; 64 S Ct 134; 88
L Ed 48 (1943). I conclude that § 3(2) is just such a
public-welfare statute and that the criminal offense set
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ANSEN
,J.
forth therein contains no scienter requirement because
the Legislature intended to shift “the burden of acting
at hazard” to those who own and possess animals in this
state. See Dotterweich, 320 US at 281.
I find support for this conclusion in the legislative
history of the dangerous animals act. I recognize that
legislative bill analyses “are ‘generally unpersuasive
tool[s] of statutory construction’ ” and “do not neces-
sarily represent the views of any individual legislator.”
Kinder Morgan Mich, LLC v City of Jackson, 277 Mich
App 159, 170; 744 NW2d 184 (2007) (citation omitted;
alteration in original). But “legislative bill analyses do
have probative value in certain, limited circumstances.”
Id.
The dangerous animals act was added by way of 1988
PA 426, effective March 30, 1989. 1988 PA 426 was
originally introduced as House Bill 4897 and went
through several minor revisions before it was ulti-
mately enacted by the Legislature. As indicated in the
final legislative bill analysis of HB 4897, one of the
arguments in favor of the bill was that it “would provide
stiff penalties for irresponsible pet owners who endan-
gered others by their failure to properly train or re-
strain their pets. Such penalties would encourage own-
ers to take their responsibilities seriously....”House
Legislative Analysis, HB 4897 (as enrolled), January 20,
1989. This language further supports my conclusion
that, in enacting § 3(2), the Legislature intended to
shift the burden of acting to pet owners in an effort “to
protect those who are otherwise unable to protect
themselves,” Quinn, 440 Mich at 187, irrespective of
any particular pet owner’s knowledge or state of mind.
I conclude that the offense set forth in § 3(2) of the
dangerous animals act is a strict-liability crime, con-
taining no scienter requirement. Accordingly, I would
2013] P
EOPLE V
J
ANES
57
D
ISSENTING
O
PINION BY
J
ANSEN
,J.
affirm the circuit court’s denial of defendant’s motion
to quash, but reverse the circuit court’s warning to the
prosecution that it will have to prove defendant’s crimi-
nal intent at trial.
58 302 M
ICH
A
PP
34 [July
D
ISSENTING
O
PINION BY
J
ANSEN
,J.
BELLEVUE VENTURES, INC v MORANG-KELLY
INVESTMENT, INC
Docket No. 309743. Submitted July 10, 2013, at Detroit. Decided July 30,
2013, at 9:00 a.m.
Bellevue Ventures, Inc., brought an action in the Wayne Circuit
Court against Morang-Kelly Investment, Inc., alleging that
Morang-Kelly had stopped making payments on some used super-
market equipment it had purchased from plaintiff and installed at
one of its Detroit stores. Morang-Kelly responded that the equip-
ment was faulty and, further, that it was not a party to the
purchase and installation agreement because the person who
signed it, Mike Awdish, was not Morang-Kelly’s authorized agent.
The court, Prentis Edwards, J., awarded plaintiff $90,336.84 of the
$95,700 balance due on a theory of unjust enrichment. Judge John
A. Murphy entered a judgment in that amount, and defendant
appealed.
The Court of Appeals held:
1. The trial court erred by striking defendant’s countercom-
plaint, amended answers, and amended affirmative defenses on
the ground that these items failed to appear in the register of
actions or the physical case file. MCR 2.107(G) requires only that
a party confirm that its pleadings have been filed with the clerk,
not by the clerk, and defendant presented copies of the documents
at issue that had been time-stamped by the court clerk’s office.
However, this error was harmless because the court allowed
defendant to pursue the substance of the stricken defenses and
counterclaim throughout the trial.
2. The trial court did not err by refusing to dismiss plaintiff’s
cause of action on the ground that the documents it had provided
defendant were under the name of a corporation that no longer
existed. Plaintiff had the capacity to recover damages under a
theory of unjust enrichment regardless of the corporation’s status.
3. The trial court did not err by concluding that Awdish had
either actual or apparent authority to act as defendant’s agent.
Furthermore, plaintiff would have been entitled to recover dam-
ages under a theory of unjust enrichment regardless of Awdish’s
legal status.
2013] B
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ENTURES V
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ORANG
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ELLY
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59
4. The record was insufficient to determine whether the trial
court erred by proceeding with a bench trial rather than a trial by
jury. Remand was necessary to determine whether plaintiff had
actually filed the jury demand on which defendant asserted it had
relied.
Reversed and remanded; jurisdiction retained.
1. P
LEADINGS —
F
ILING WITH
C
OURT
C
LERK
.
Under MCR 2.107(G), it is a party’s responsibility to confirm that it
has filed its pleadings and other materials with the court clerk; a
party need not be able to prove that the clerk subsequently filed
these documents or included them in the register of actions.
2. P
LEADINGS —
F
ILING WITH
C
OURT
C
LERK —
P
ROOF OF
F
ILING
.
The presentation of a time-stamped copy of a document constitutes
proof of compliance with the filing requirements of MCR 2.107(G).
Sitto Law, PLLC (by Brent F. Sitto and Timothy
Mulligan), for plaintiff.
Chasnick Terrasi, PLLC (by David A. Chasnick and
Margaret S. Terrasi), for defendant.
Before: F
ORT
H
OOD
,P.J., and F
ITZGERALD
and R
ONAYNE
K
RAUSE
,JJ.
R
ONAYNE
K
RAUSE
, J. Defendant appeals by right the
circuit court order awarding plaintiff $90,336.84, for
unjust enrichment. For the reasons stated below, we
reverse and remand.
I. FACTS
Plaintiff, Bellevue Ventures, Inc., doing business as
Metro Equipment, Inc., is a Michigan corporation engaged
in the business of purchasing, refurbishing, and selling
used equipment. Defendant, Morang-Kelly Investment,
Inc., doing business as Farmer’s Best, is a Michigan
corporation engaged in the supermarket business.
In April of 2010, plaintiff filed a complaint against
60 302 M
ICH
A
PP
59 [July
defendant alleging breach of contract and unjust
enrichment. Plaintiff alleged that it had entered into
a contract for the sale and installation of used super-
market refrigeration equipment at defendant’s Wyo-
ming Street location in Detroit with a person named
Mike Awdish; however, defendant had ceased making
payments on the equipment with an outstanding
balance of $95,700 that remained to be paid. At a
bench trial on the matter, defendant asserted that the
equipment was faulty and had cost defendant tens of
thousands of dollars in lost product and repair costs,
that defendant was not a party to the contract at
issue because Awdish was not an authorized agent of
defendant, and that Awdish had merely given the
equipment to defendant.
At the conclusion of trial, the trial court issued an
oral opinion awarding plaintiff $90,336.84. In support
of this award, the trial court ruled that although there
was no written contract between the parties, an infor-
mal agreement existed between plaintiff and Awdish.
The court further ruled that Awdish either was or held
himself out to be defendant’s agent and that the equip-
ment was still in use by defendant and defendant would
be unjustly enriched if it did not perform its side of the
agreement. The trial court arrived at the award by
using the contract price and offsetting the amount
actually paid to plaintiff, as well as giving credit to
defendant for repair expenses incurred within a reason-
able time after purchase.
II. ANALYSIS
First, defendant argues that the trial court erred by
striking defendant’s countercomplaint, amended an-
swers, and amended affirmative defenses. We agree, but
find the error harmless. We review a lower court’s
2013] B
ELLEVUE
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ENTURES V
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ORANG
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ELLY
I
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61
striking of a pleading for an abuse of discretion. Jordan
v Jarvis, 200 Mich App 445, 452; 505 NW2d 279 (1993).
At the time defendant’s pleadings were struck, MCR
2.107(G) provided that “[t]he filing of all pleadings and
other papers with the court as required by [the court]
rules must be with the clerk of the court....”
1
Further,
“[i]t is the responsibility of the party who presented the
papers to confirm that they have been filed with the
clerk.” Id.
Plaintiff moved to strike defendant’s countercom-
plaint, amended answers, and amended affirmative
defenses after they failed to appear in either the regis-
ter of actions or the physical case file. Defendant
presented to the trial court copies of the pleadings, all of
which contained a time-stamp from the Wayne County
Clerk’s Office, and established that a third-party sum-
mons concerning the pleadings had been issued by the
clerk; however, the trial court struck the pleadings on
the basis of defendant’s failure to ensure that they had
been filed with the clerk pursuant to MCR 2.107(G).
On appeal, defendant asserts that it did everything
required under the court rules to ensure that the
documents in question were filed, and that the trial
court abused its discretion by granting plaintiff’s mo-
tion to strike. We agree. The court rule provides that
“[i]t is the responsibility of the party who presented the
materials to confirm that they have been filed with the
clerk.” MCR 2.107(G). The rule does not, however,
require that the party who presented the materials to
the clerk confirm that the clerk subsequently filed the
materials in the physical file or included them in the
register of actions. Accordingly, we hold that proof of
filing with the clerk, and not proof of filing by the clerk,
1
This provision was amended effective January 1, 2013, but the minor
changes in phrasing do not affect the applicability of our analysis.
62 302 M
ICH
A
PP
59 [July
is sufficient to establish compliance with MCR
2.107(G). We further hold that the presentation of
time-stamped copies to the trial court constitutes proof
of such compliance, and plaintiff’s motion to strike
should have been denied.
Despite this error, however, the trial court’s erroneous
grant of plaintiff’s motion to strike was rendered harmless
by the fact that the trial court permitted defendant to
pursue the substance of the stricken defenses and coun-
terclaim throughout trial. In those documents, defendant
had asserted that any alleged breach was justified by the
fact that plaintiff had supplied defendant with defective
merchandise and that defendant had incurred substantial
costs while repairing those defects. At trial, significant
portions of testimony and argument were devoted to the
state of the equipment sold to defendant by plaintiff. In
fact, at the conclusion of trial, the trial court ordered an
offset to the amount awarded to plaintiff to account for
some of the repairs that defendant was required to pay for
after purchasing the merchandise in question. Therefore,
defendant suffered no prejudice and is not entitled to
relief.
Additionally, defendant argues that the trial court
erred by ruling that plaintiff had the legal capacity to
file a lawsuit. We disagree. We review a trial court’s
decision on a motion in limine for an abuse of discre-
tion. Bartlett v Sinai Hosp of Detroit, 149 Mich App 412,
418; 385 NW2d 801 (1986).
In the instant case, on the morning of trial, defen-
dant made a motion in limine seeking dismissal of
plaintiff’s cause of action, arguing that all of the in-
voices and documents provided to defendant had been
under the name of Metro Equipment, Inc., and that no
such corporation existed. Accordingly, defendant argued
that Metro Equipment, Inc. lacked the legal power to
2013] B
ELLEVUE
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ENTURES V
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ORANG
-K
ELLY
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63
sue and that plaintiff’s action must be dismissed, as
plaintiff was holding itself out as Metro Equipment,
Inc. The trial court rejected defendant’s argument.
On appeal, defendant continues to assert that it was
entitled to dismissal on the grounds that Metro Equip-
ment, Inc. is not a valid corporation. Defendant fails to
recognize, however, that the trial court awarded a judg-
ment to plaintiff under a theory of unjust enrichment.
The elements of a claim for unjust enrichment are (1)
receipt of a benefit by the defendant from the plaintiff,
and (2) an inequity resulting to plaintiff from defendant’s
retention of the benefit. Dumas v Auto Club Ins Ass’n,
437 Mich 521, 546; 473 NW2d 652 (1991). In such in-
stances, the law operates to imply a contract in order to
prevent unjust enrichment. Martin v East Lansing Sch
Dist, 193 Mich App 166, 177; 483 NW2d 656 (1992).
However, a contract will be implied only if there is no
express contract covering the same subject matter. Id.
Here, the record reflects that there was no express
contract between the parties, and that defendant re-
ceived a benefit from plaintiff in the form of refrigera-
tion equipment, installation, and maintenance. The
record also shows that plaintiff was not paid in full for
those goods and services. Under these facts, inequity
would result if plaintiff were allowed to retain the
benefit of the unpaid goods and services, and these facts
alone are sufficient to establish both a theory of unjust
enrichment and, by extension, plaintiff’s capacity to
recover damages. Therefore, because plaintiff had the
power to sue under the equitable theory of unjust
enrichment, the trial court did not err by permitting the
case to go to trial.
Defendant also argues that the trial court erred by
finding that Mike Awdish was an agent of defendant.
We disagree. We review a trial court’s findings of fact for
clear error. MCR 2.613(C).
64 302 M
ICH
A
PP
59 [July
The Michigan Supreme Court has defined “apparent
authority” as follows:
Whenever the principal, by statements or conduct,
places the agent in a position where he appears with
reasonable certainty to be acting for the principal, or
without interference suffers the agent to assume such a
position, and thereby justifies those dealing with the agent
in believing that he is acting within his mandate, an
apparent authority results which replaces that actually
conferred as the basis for determining rights and liabilities.
[Central Wholesale Co v Sefa, 351 Mich 17, 25; 87 NW2d 94
(1957) (citation and quotation marks omitted).]
Here, not only did Awdish hold himself out as having
authority to bind defendant with regard to the store the
equipment was being installed in, defendant ratified this
apparent authority by accepting the goods and services, as
well as the invoices for those goods and services. Defen-
dant’s assertions at trial and on appeal—that Awdish was
not an agent of defendant and that defendant was not a
party to the agreement at issue—are completely belied by
defendant’s conduct, as well as by the facts of this case.
Further, as noted, remedy in this matter was granted
under the equitable theory of unjust enrichment. It was
undisputed at trial that defendant received the equip-
ment from plaintiff, that the equipment was still in use
by—in fact, “needed” by—defendant, and that plaintiff
had not been fully compensated for the equipment and
services it rendered to the benefit of defendant. Under
those facts, the agency status of Awdish is of no true
legal significance, because defendant received a benefit
from plaintiff and inequity would have resulted from
the retention of the benefit. Dumas, 437 Mich at 546.
Therefore, either because Awdish had authority or
apparent authority to bind defendant to an agreement
or because plaintiff provided defendant with a benefit
2013] B
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65
that would be unjust for defendant to retain, the trial
court did not err by ruling that defendant was liable for
the outstanding balance due on the equipment in ques-
tion.
Finally, defendant argues that the trial court erred by
proceeding with a bench trial rather than a trial by jury.
We find that the record is insufficient to determine this
issue. We review whether a party has a right to a jury
trial de novo. In re MCI Telecom Corp Complaint, 240
Mich App 292, 311; 612 NW2d 826 (2000).
Under MCR 2.508(D)(1), a party who fails to file a
jury demand or pay the jury fee waives the right to trial
by jury. Under MCR 2.508(D)(3), “[a] demand for trial
by jury may not be withdrawn without the consent,
expressed in writing or on the record, of the parties or
their attorneys.”
In the instant case, a bench trial was conducted over
the objections of defendant, who asserted that plaintiff
had filed a jury demand on which defendant had relied.
While the register of actions reflects that plaintiff paid
a jury fee and filed a jury demand, no jury demand
appears in the lower court record and no reference to a
jury demand was made in any of plaintiff’s filings.
Unfortunately, and much to the frustration of this
Court, deficiencies and irregularities in the record and
register of actions have been substantial issues
throughout the instant case at both the trial and
appellate court levels. Given the systemic deficiencies in
the record, we are unable to determine with any degree
of certainty whether we should base our determination
on the content found in the register of actions, or the
lack of content found in the lower court record.
2
2
As we indicated previously, defendant had time-stamped copies of
pleadings that are neither in the file nor in the register of actions, and
66 302 M
ICH
A
PP
59 [July
Accordingly, we find it necessary to remand this issue
to the trial court for an evidentiary hearing as to
whether or not a jury demand was properly filed and a
jury fee was paid in this matter. Only then can a final
determination be made as to whether or not defendant
was entitled to a jury trial.
Reversed and remanded for the reasons stated in this
opinion. We retain jurisdiction.
F
ORT
H
OOD
,P.J., and F
ITZGERALD
, J., concurred with
R
ONAYNE
K
RAUSE
,J.
although plaintiff indicates that no jury fee was paid and no jury demand
was filed, both are noted on the register of actions.
2013] B
ELLEVUE
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ORANG
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ELLY
I
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67
McLEAN v CITY OF DEARBORN
Docket No. 309563. Submitted June 5, 2013, at Detroit. Decided August 1,
2013, at 9:00 a.m.
Patricia McLean brought an action in the Wayne Circuit Court
against the city of Dearborn, seeking damages for injuries sus-
tained when she stepped off a sidewalk and into a pothole in a
road. Plaintiff’s attorney sent a notification letter to the city’s
manager and mayor indicating that plaintiff had been injured after
tripping and falling on a city street. Plaintiff’s attorney subse-
quently responded to a communication from Broadspire, plaintiff’s
third-party claims administrator, giving full details about plain-
tiff’s injuries, as well as the specific location of the accident.
Defendant filed a motion for summary disposition, arguing that
plaintiff had failed to provide presuit notice of her claim, as
required by MCL 691.1404, because plaintiff had failed to ad-
equately describe her alleged injuries and the exact nature of the
defect. Plaintiff argued that any defects in the original notice were
cured by the subsequent letter to Broadspire. The trial court,
Daniel P. Ryan, J., denied defendant’s motion, concluding that the
original notice sufficiently described the nature of the defect by
enclosing pictures of the defect and that plaintiff’s letter to
Broadspire, describing the nature of her injuries, was sufficient to
satisfy the MCL 691.1404 notice requirement. Defendant ap-
pealed.
The Court of Appeals held:
1. For purposes of the highway exception to governmental
immunity, MCL 691.1402(1), a person who is injured by reason of
a governmental agency failing to keep a highway under its
jurisdiction in reasonable repair and in a condition reasonably safe
and fit for travel, must timely notify the governmental agency that
has jurisdiction over the roadway of the injury sustained, the
nature of the defect, and the names of known witnesses, MCL
691.1404(1). Notice need not be provided in any particular form
and is sufficient if it is timely and contains the requisite informa-
tion. The required information does not have to be contained
within the initial notice; it is sufficient if a supplemental notice
received by the governmental agency within the 120-day period
68 302 M
ICH
A
PP
68 [Aug
contains the required elements. In this case, the trial court
properly concluded that plaintiff’s description of the nature and
location of the defect in the original notification letter that was
sent to the city manager and mayor satisfied the MCL 691.1404(1)
notification requirement; any deficiency in the written description
was remedied by the inclusion of photographs of the defect.
2. Plaintiff’s original notice to defendant that she had received
“significant injuries” did not comply with the notification-of-the-
injury-sustained requirement of MCL 691.1404(1) because the
description was inadequate to inform defendant of her actual
injuries.
3. MCL 691.1404(2) requires that notice of the injury sus-
tained and location of the highway defect may be served on any
individual who may lawfully be served with civil process directed
against the governmental agency. Under MCR 2.105(G)(2), service
of process may be made on the mayor, the city clerk, or the city
attorney of a city. However, for purposes of MCR 2.105(H)(1),
service of process may be made on a defendant by serving an agent
authorized by written appointment or by law to receive service of
process. Broadspire was not authorized by statute or court rules to
receive service of process on behalf of defendant The trial court
erred by concluding that plaintiff’s supplemental letter to Broad-
spire functioned as a supplemental notice under MCL 691.1404(2).
4. Defendant properly preserved the issue of deficient service
of process by raising it in the trial court.
Reversed and remanded for entry of summary disposition in
favor of defendant.
M. J. K
ELLY
,P.J., dissenting, would have concluded that plaintiff
established a question of fact whether she complied with the MCL
691.1404 notice requirement when she sent the supplemental
letter to Broadspire and would have affirmed the trial court’s
denial of defendant’s summary disposition motion.
G
OVERNMENTAL
I
MMUNITY —
H
IGHWAY
E
XCEPTION —
N
OTICE OF
I
NJURIES —
S
ERVICE OF
P
ROCESS —
T
HIRD
-P
ARTY
C
LAIMS
A
DMINISTRATOR
.
For purposes of the highway exception to governmental immunity,
notice to the alleged responsible governmental agency of the injury
sustained and location of the highway defect that caused the
injuries may be served on any individual who may lawfully be
served with civil process directed against the governmental
agency; under MCR 2.105(G)(2), service of process may be made on
the mayor, the city clerk, or the city attorney of a city; for purposes
of MCR 2.105(H)(1), service of process may be made on a defen-
dant by serving an agent authorized by written appointment or by
2013] M
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law to receive service of process; absent an express written
authorization, a third-party claims administrator is not authorized
to accept service of process on behalf of a city defendant for
purposes of notification of the injuries sustained from an alleged
highway defect (MCL 691.1404[1] and [2]).
Kaufman, Payton & Chapa (by Lawrence C. Atorthy),
for Patricia McLean.
William H. Irving and Debra A. Walling for city of
Dearborn.
Before: M. J. K
ELLY
,P.J., and M
URRAY
and B
OONSTRA
,
JJ.
B
OONSTRA
, J. Defendant appeals by right the order of
the trial court denying defendant’s motion for summary
disposition. Defendant filed a motion for summary
disposition pursuant to MCR 2.116(C)(7) and (10) on
the grounds of governmental immunity. Because we
find that the trial court erred by concluding that
plaintiff had satisfied the notice requirements of
MCL 691.1404(1), and the defect was not cured by
subsequent communications to defendant’s third-party
claims administrator, we reverse.
I. BASIC FACTS AND PROCEDURAL HISTORY
Plaintiff alleged that she tripped and fell while step-
ping off a sidewalk onto a road in the city of Dearborn
on July 11, 2008. She stated at her deposition that her
left foot “went right into that pothole,” causing her to
fall and sustain injuries. After attempting to ice and
rest her foot, plaintiff had her husband take her to
Oakwood Hospital that same day. Plaintiff stated that
“They took x-rays and told me my foot was broken and
that I’d have to go in and have a cast put on.”
70 302 M
ICH
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68 [Aug
O
PINION OF THE
C
OURT
Five days later, plaintiff’s attorney sent a letter
addressed to the “City Manager or Mayor’s Office” of
defendant. The letter stated in relevant part:
RE: OUR CLIENT: PATRICIA MCLEAN; DATE OF INCI-
DENT: JULY 11, 2008; LOCATION OF INCIDENT: PUB-
LIC STREET LOCATED DIRECTLY ACROSS FROM
1136 MASON STREET, DEARBORN, MICHIGAN 48124
Dear City Manager or Mayor:
Please be advised that my client, Patricia Mclean, sus-
tained a significant injuries [sic] as a result of tripping and
falling due to a hazardous and defective city street at the
above referenced location.
***
On the above date, Ms. Mclean sustained the above-
mentioned injuries when she tripped and fell on a defective
portion of city street located directly across the street from
1136 Mason, Dearborn, Michigan. Enclosed you will find
color laser copies of photographs showing the exact location
where our client’s injury occurred, as well as of the
hazardous defect that was allowed to remain on the street.
On September 16, 2008, plaintiff’s attorney re-
sponded to a communication from Ms. Flory Morisette
of the Claims Department of Broadspire. The parties
agree that Broadspire is defendant’s third-party claims
administrator (TPA). The letter stated in relevant part:
As you know, our office serves as counsel to [plaintiff], who
was seriously injured on city property on the referenced
date. Pursuant to your letter dated August 7, 2008, I have
enclosed multiple photographs of the exact location of the
raised, defective, and uneven portion of the “highway”
located directly across from 1136 Mason Street in the
public street in the City of Dearborn (see attached). In
addition, my client has sustained a fractured left foot and
has tretated [sic] at Oakwood Hospital and will seek follow
up care.
2013] M
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O
PINION OF THE
C
OURT
On July 8, 2010, plaintiff filed a complaint in the trial
court, alleging numerous injuries, including a fractured
left foot; head, neck and back injuries; injuries to the
upper and lower extremities; permanent scarring; head-
aches; “severe shock”; “[s]evere humiliation and em-
barrassment”; and “severe, frequent and persistent
pain,” as well as aggravation of preexisting medical
conditions. Plaintiff also described the defect as “a
broken, deteriorated, cracked, crumbled, hole.”
Defendant filed a motion for summary disposition,
arguing that plaintiff had failed to provide adequate
presuit notice of her claim pursuant to MCL 691.1404.
Specifically, defendant argued that plaintiff had failed
to adequately describe the alleged injuries sustained
and the exact nature of the defect. Plaintiff responded
that any defects in the original notice were cured by the
subsequent letter to Broadspire.
The trial court agreed with plaintiff, concluding that
the original notice sufficiently described the nature of
the defect by enclosing pictures of the defect. The trial
court further concluded that plaintiff’s letter to Broad-
spire sufficiently described the nature of her injury to
satisfy the notice requirement of the statute. The trial
court therefore denied defendant’s motion for summary
disposition. Defendant moved the trial court for recon-
sideration, which the trial court denied. This appeal
followed.
II. STANDARD OF REVIEW
This Court reviews de novo a trial court’s grant of
summary disposition under MCR 2.116(C)(7) and
(C)(10). Oliver v Smith, 290 Mich App 678, 683; 810
NW2d 57 (2010); Maiden v Rozwood; 461 Mich 109,
118; 597 NW2d 817 (1999). In reviewing a motion for
summary disposition under MCR 2.116(C)(7), a court
72 302 M
ICH
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68 [Aug
O
PINION OF THE
C
OURT
considers the affidavits, pleadings, and other documen-
tary evidence presented by the parties and accepts the
plaintiff’s well-pleaded allegations as true, except those
contradicted by documentary evidence. Oliver, 290
Mich App at 683. In reviewing a motion under MCR
2.116(C)(10), the trial court considers affidavits, plead-
ings, depositions, admissions, and other evidence intro-
duced by the parties to determine whether no genuine
issue of material fact exists and the moving party is
entitled to judgment as a matter of law. MCR
2.116(G)(4); Maiden, 461 Mich at 119. The evidence
submitted must be considered “in the light most favor-
able to the opposing party.” MEEMIC Ins Co v DTE
Energy Co, 292 Mich App 278, 280; 807 NW2d 407
(2011).
III. NOTICE
The governmental tort liability act, MCL 691.1401 et
seq., provides immunity from tort claims to governmen-
tal agencies engaged in a governmental function, as well
as governmental officers, agents or employees. The
Legislature has set forth six exceptions to governmental
tort immunity. Lash v City of Traverse City, 479 Mich
180, 195 n 33; 735 NW2d 628 (2007). Relevant here is
the “highway exception” to governmental immunity,
which allows a governmental agency to be liable for
damages caused by an unsafe highway. MCL
691.1402(1) provides in relevant part:
Each governmental agency having jurisdiction over a
highway shall maintain the highway in reasonable repair
so that it is reasonably safe and convenient for public
travel. A person who sustains bodily injury or damage to
his or her property by reason of failure of a governmental
agency to keep a highway under its jurisdiction in reason-
able repair and in a condition reasonably safe and fit for
2013] M
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travel may recover the damages suffered by him or her
from the governmental agency.
This exception is to be narrowly construed. Grimes v
Dep’t of Transp, 475 Mich 72, 78; 715 NW2d 275 (2006).
An injured person is required to timely notify the
governmental agency having jurisdiction over the road-
way of the occurrence of the injury, the injury sustained,
the nature of the defect, and the names of known
witnesses. MCL 691.1404(1); Rowland v Washtenaw Co
Rd Comm, 477 Mich 197, 200, 203-204, 219; 731 NW2d
41 (2007). Failure to provide adequate notice under this
statute is fatal to a plaintiff’s claim against a govern-
ment agency. Id. at 219. MCL 691.1404 provides in
relevant part:
(1) As a condition to any recovery for injuries sus-
tained by reason of any defective highway, the injured
person, within 120 days from the time the injury oc-
curred, except as otherwise provided in subsection (3)
[
1
]
shall serve a notice on the governmental agency of the
occurrence of the injury and the defect. The notice shall
specify the exact location and nature of the defect, the
injury sustained and the names of the witnesses known at
the time by the claimant.
(2) The notice may be served upon any individual, either
personally, or by certified mail, return receipt requested,
who may lawfully be served with civil process directed
against the governmental agency, anything to the contrary
in the charter of any municipal corporation notwithstand-
ing.
Notice need not be provided in any particular form
and is sufficient if it is timely and contains the requisite
information. Burise v City of Pontiac, 282 Mich App 646,
654; 766 NW2d 311 (2009). The required information
1
Subsection 3 refers to injured claimants under the age of 18 and is not
relevant to the instant case.
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does not have to be contained within the plaintiff’s
initial notice; it is sufficient if a notice received by the
governmental agency within the 120-day period con-
tains the required elements. Id.
MCL 691.1404 is “straightforward, clear, unambigu-
ous” and “must be enforced as written.” Rowland, 477
Mich at 219. Although under some circumstances this
Court will conclude that a notice is sufficient despite a
technical defect, see Plunkett v Dep’t of Transp, 286
Mich App 168, 176-177; 779 NW2d 263 (2009), the
plaintiff must at least “adequately” provide the re-
quired information. Id. at 178. “ ‘ “Some degree of
ambiguity in an aspect of a particular notice may be
remedied by the clarity of other aspects.” ’ ” Id. at 177,
quoting Jones v Ypsilanti, 26 Mich App 574, 584; 182
NW2d 795 (1970), in turn quoting Smith v City of
Warren, 11 Mich App 449, 455; 161 NW2d 412 (1968).
Thus, in Plunkett, we found that any ambiguity in the
plaintiff’s description of the nature of the defect was
remedied by the precise description of the defect’s
location, including the attached police report. Id.at
178-179.
A. NOTICE OF THE LOCATION AND NATURE OF THE DEFECT
WAS SUFFICIENT
Defendant argues first that plaintiff did not describe
the exact nature of the defect. We agree with the trial
court that the description of the nature and location of
the defect in the original notification letter sent to the
city manager and mayor, which included color photo-
graphs of the defect, was sufficient. Although the writ-
ten description of a “hazardous and defective city
street,” standing alone, would not provide sufficient
notice of the exact nature of the defect, defendant was
also provided with color photos of the defect, and a
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description of the defect as being located “directly
across the street from 1136 Mason, Dearborn, Michi-
gan.” The pictures show a hole in the concrete surface
of the road and provide landmarks, such as a light post,
a large line in the concrete, and the doorway of the
building directly across the street, which would assist
defendant’s agents in finding and repairing the defect.
There are also close-up pictures of the defect. Any
deficiency in the written description is therefore rem-
edied by the inclusion of the photographs. Plunkett, 286
Mich App at 178-179.
We decline to accept defendant’s argument that
plaintiff admitted at her deposition that the photos did
not accurately depict the defect. Plaintiff stated, in her
deposition taken three years after the accident, that the
hole in the picture was not “as crumbled looking” as she
recalled it looking on the day of the accident, and agreed
that it did not really represent how it looked when she
fell. She further stated that it looked as though it was
“not as deep” and “it could have been filled in.”
The purpose of requiring notice is to provide the
governmental agency with an opportunity to investi-
gate the claim while it is fresh and to remedy the defect
before another person is injured. Plunkett, 286 Mich
App at 176-177. Nothing in MCL 691.1404, or our
caselaw, indicates that a plaintiff can “undo” the suffi-
ciency of the notice provided to a governmental agency
at their deposition, especially by stating that, according
to their three-year-old recollection, they remembered a
pothole being deeper or more crumbled. Plaintiff did
not state that the pictures did not show the defect or
that she was unable to state that the defect caused her
injury—instead she merely remarked that it appeared
less crumbled and/or deep than she remembered. We
decline to base the sufficiency of notice provided under
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MCL 691.1404 on the vagaries of human memory;
indeed the purpose of the notice requirement is pre-
cisely to avoid the sort of imprecision that may occur
when testimony is taken and evidence collected years
later, by allowing claims to be investigated when they
are still fresh. Id. The notice provided was sufficient in
its description of the nature and location of the defect.
B. THE INITIAL NOTICE LACKED SUFFICIENT DESCRIPTION
OF THE NATURE OF PLAINTIFF’S INJURY
Were that the only issue with the original notice, we
likely would affirm the trial court. However, defendant
also argues, and we agree, that plaintiff failed to de-
scribe “the injury sustained” as required by MCL
691.1404(1). Plaintiff stated in the initial notice that
she had received “a significant injuries [sic].” This is a
significant ambiguity that was not remedied by clarity
in any other aspects of the notice. As we already noted,
in 2010 plaintiff in fact alleged a whole host of injuries
in her complaint; defendant was not provided with
notice of those injuries. The description of plaintiff’s
injury contained in the original notice was thus wholly
inadequate; plaintiff cannot be deemed to have com-
plied, substantially or otherwise, with this statutory
requirement. Plunkett, 286 Mich App at 176-177.
Plaintiff argues that she could not provide “an expert
level of commentary” on her injury a mere five days
after her accident, and invites this Court to consider a
scenario in which she alleged that her ankle was
sprained, only to lose her claim when it was discovered
that her ankle was broken or that she had actually
injured her tibia. This hypothetical situation is not
before this Court. Rather, plaintiff knew, at a minimum,
that she had fractured her left ankle, as she obtained
medical treatment and x-rays the very day of the
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accident. Yet the description of her injury did not even
name a body part that was injured. Thus, while (and
consistent with our precedents) we do not construe
MCL 691.1404 in an overly restrictive manner, Plun-
kett, 286 Mich App at 176-177, so as to “make it difficult
for the average citizen to draw a good notice,” Meredith
v City of Melvindale, 381 Mich 572, 579; 165 NW2d 7
(1969) (quotation marks and citation omitted), neither
do we accept plaintiff’s invitation to allow the statutory
requirement to be satisfied by the mere recitation of the
phrase “significant injury.” To do so would essentially
render this aspect of the MCL 691.1404(1) notice re-
quirement illusory or nugatory in contravention of our
canons of statutory construction. See Apsey v Memorial
Hosp, 477 Mich 120, 131; 730 NW2d 695 (2007).
C. THE LETTER TO BROADSPIRE WAS NOT SERVED IN ACCORDANCE
WITH MCL
691.1404(2) AND MCR 2.105
Having determined that the initial notice to defen-
dant was insufficient, we now determine whether the
defect was cured by plaintiff’s subsequent communica-
tion to defendant’s TPA. Plaintiff is correct that all the
information required by MCL 691.1404(1) does not
have to be contained within the plaintiff’s initial notice;
it is sufficient if a notice received by the governmental
agency within the 120-day period contains all the re-
quired elements. Burise, 282 Mich App at 654. However,
we disagree that plaintiff’s letter to Broadspire can be
considered “notice” to defendant under MCL
691.1404(2). The statute provides that “notice may be
served upon any individual...who may lawfully be
served with civil process directed against the govern-
ment agency....”Id. MCR 2.105(G)(2) provides that
service of process may be made on “the mayor, the city
clerk, or the city attorney of a city.” By the plain
language of this statute and court rule, service on a TPA
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is not sufficient. Judicial construction of MCL 691.1404
is not permitted. Rowland, 477 Mich at 219.
Plaintiff agrees that MCR 2.105(G)(2) does not
provide for service of process on a TPA. However,
plaintiff argues, for the first time on appeal, that
MCR 2.105(H)(1) allows for such service in this case.
2
That court rule provides that service of process on a
defendant may be made on “an agent authorized by
written appointment or by law to receive service of
process.” Id.
3
Plaintiff argues that, by virtue of Broad-
spire’s response to plaintiff’s original letter, defen-
dant represented to plaintiff that Broadspire was
defendant’s agent in this matter. Plaintiff cites
Burise, 282 Mich App at 655, in support of this claim.
In Burise, we held that a supplemental notice, prop-
erly served, may cure an inadequate initial notice. Id.
Although the supplemental notice in Burise was
served on defendant’s representative, the issue in
2
Plaintiff made no such argument in the trial court. The dissent
nonetheless posits that the majority wrongly responds to this argu-
ment on behalf of defendant, since defendant had not addressed the
argument before the trial court. The parties indeed confined their
arguments before the trial court to whether service to Broadspire was
valid under MCL 691.1404(2) and MCR 2.105(G)(2). And the plain
language of that statute and court rule indicate that the service was
defective. Plaintiff did not raise an argument under MCR 2.105(H)(1)
until this appeal. Since plaintiff had not previously raised the argu-
ment, defendant properly responded to it for the first time on appeal.
A party on appeal is not precluded from urging an “alternative ground
for affirmance.” In re Herbach Estate, 230 Mich App 276, 284; 583
NW2d 541 (1998). It is in that context that we address, and reject,
plaintiff’s argument. The dissent makes reference to waiver of appel-
late issues; indeed, if anyone, it would be plaintiff who waived our
review of this alternate ground for affirmance by failing to raise the
argument before the trial court. See Walters v Nadell, 481 Mich 377,
387-388; 751 NW2d 431 (2008). We do not find that plaintiff waived
this argument; but in considering it and rejecting it, we are confident
that we do not overstep the role of this Court.
3
As the dissent notes, this language also appears in MCL 600.1930.
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Burise was whether MCL 691.1404(1) allowed piece-
meal notice, not whether the service was defective.
Id.AstheBurise Court did not analyze whether
service was proper under MCL 691.1404(2), and the
opinion does not contain facts that indicate whether
the defendant’s representative was authorized to
receive service under MCR 2.105(H)(1), we conclude
that Burise does not aid plaintiff’s position.
There is simply no record evidence in this case
indicating that Broadspire was authorized by written
appointment or law to accept service on behalf of
defendant. MCR 2.105(H)(1). Plaintiff’s claim appears
to rest on the theory of apparent authority. Central
Wholesale Co v Sefa, 351 Mich 17, 25; 87 NW2d 94
(1957), quoting 2 CJS, Agency, § 96 (b), pp 1210-1211
(“ ‘Whenever the principal, by statements or conduct,
places the agent in a position where he appears with
reasonable certainty to be acting for the princi-
pal...an apparent authority results which replaces
that actually conferred as the basis for determining
rights and liabilities.’ ”) However, the claim must fail in
light of the clear language of the relevant court rule and
MCL 691.1404(2).
4
In the absence of any evidence of a
written appointment of Broadspire as defendant’s
agent (for purposes of receiving service of process), or
any law granting Broadspire such authority, plaintiff’s
4
The dissent also appears to rely on a theory of apparent authority, as
it states that language from the letter from Broadspire “permits an
inference that the City had authorized Broadspire to act on its behalf”
and that “a reasonable fact-finder could infer that the City granted this
authority to Broadspire in a written agreement.” However, defendant’s
apparent appointment of Broadspire as a third party administrator in no
way suggests or equates to a “written appointment...toreceive service
of process.” We reiterate that judicial construction of MCL 691.1404 and
MCL 600.1930 is not permitted because they are clear and unambiguous.
Rowland, 477 Mich at 219.
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letter to Broadspire simply did not function as a supple-
mental notice under the statute.
5
Plaintiff again invites this Court to consider a hypo-
thetical scenario in which a defendant engages outside
counsel to contact plaintiff for more information about
the claim, arguably barring the plaintiff from dealing or
communicating directly with the defendant. Such a
situation is not before this Court; nor do the notice
requirements of MCL 691.1404 or the service require-
ments of MCR 2.105, govern all dealings between the
parties. We see no great injustice in requiring plaintiffs
seeking to provide notice to defendants under the
statute to serve their notices on the correct parties.
Although plaintiff asserts that there “should be no
requirement that the supplemental notice be served
upon the same cast of persons as identified in MCR
2.105(G),” we are not in a position to re-write the
statute or the court rule. We reiterate that our Supreme
Court has found this notice provision to be both consti-
tutional and unambiguous. Rowland, 477 Mich at 219.
6
5
Additionally, we note that plaintiff’s letter to Broadspire was not
personally served, and the record does not contain evidence indicating it
was served by “registered or certified mail” as required by MCR 2.105(A).
Thus, even if we determined that Broadspire was authorized to accept
service on behalf of defendant, that service would still have been defective
under the relevant court rule.
6
This is not to say that we are without sympathy for plaintiff’s position.
Indeed, we are troubled by the fact that plaintiff is seemingly penalized for
doing that which defendant’s TPA requested (in response to plaintiff’s initial
inadequate notice), i.e., providing additional information, only to determine
later that it should have provided that information not to (or only to) the
requesting TPA, but rather (or additionally) to such persons as may be
“lawfully served with civil process” against defendant. MCL 691.1404(2).
However, our sympathy is offset by the sheer inadequacy of the initially
provided notice, as well as by the presumption that plaintiff knows the law.
Adams Outdoor Advertising v City of East Lansing (After Remand), 463
Mich 17, 27 n 7; 614 NW2d 634 (2000). Our Supreme Court has held that the
applicable statute, MCL 691.1404, is “straightforward, clear, unambiguous”
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Finally, plaintiff’s waiver argument is simply incor-
rect. Plaintiff claims that defendant never raised the
issue of deficient service of process until its motion for
reconsideration. However, the record indicates that
defendant in fact raised the issue at the motion hearing
on the parties’ cross-motions for summary disposition:
MR. IRVING [Attorney for defendant]: Thank you, your
Honor. I just wanted to point out with respect to that
second notice, we, that is Broadspire is a third-party
administrator that the city has been using to adjust certain
claims. We didn’t get this notice from Broadspire....Ijust
wanted to point out to the Court as well that even if that,
we don’t concede that that’s a timely or proper notice
because it wasn’t to the city, it was to a third party.
***
MR. IRVING: The statute requires service on the mayor,
the clerk, or the city attorney of the notice.
Defendant also alleged in its first responsive pleading
that plaintiff failed to give timely, adequate, and suffi-
cient notice to defendant. There is no basis for conclud-
ing that defendant waived this issue, which was alleged
in a responsive pleading and raised before and decided
(at least implicitly) by the trial court in ruling on the
parties’ motions. See Polkton Charter Twp v Pellegrom,
265 Mich App 88, 95; 693 NW2d 170 (2005).
IV. CONCLUSION
The unambiguous language of MCL 691.1404 re-
quires this Court to reverse the trial court’s denial of
summary disposition on the grounds that plaintiff
and “must be enforced as written.” Rowland, 477 Mich at 219. MCR 2.105
is no less clear and unambiguous. Our decision is therefore compelled by the
plain language of the statute and court rule, without regard to our sympa-
thies.
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failed to provide a description of the injury she allegedly
suffered. Additionally, we hold that the defect in the
original notice was not cured by plaintiff’s subsequent
communication with Broadspire.
Reversed and remanded for entry of summary dispo-
sition in favor of defendant. We do not retain jurisdic-
tion.
M
URRAY
, J., concurred with B
OONSTRA
,J.
M. J. K
ELLY
,P.J. (dissenting). This appeal turns on
whether defendant, city of Dearborn, established that it
was entitled to summary disposition on the ground that
plaintiff, Patricia McLean, failed to give proper notice of
her claim as required by MCL 691.1404. On this limited
record, I conclude that McLean—at the very least—
established a question of fact as to whether she com-
plied with the notice requirement by providing a
supplemental notice to the city’s third-party claims
administrator, Broadspire. Accordingly, I must respect-
fully dissent from the majority’s decision to reverse the
trial court’s denial of the city’s motion for summary
disposition.
This Court reviews de novo a trial court’s decision on
a motion for summary disposition. Barnard Mfg Co, Inc
v Gates Performance Engineering, Inc, 285 Mich App
362, 369; 775 NW2d 618 (2009). This Court also reviews
de novo the proper interpretation and application of
both statutes and court rules. Brecht v Hendry, 297
Mich App 732, 736; 825 NW2d 110 (2012).
The city moved for summary disposition on the
ground that it was immune from suit under the undis-
puted facts. See MCR 2.116(C)(7). In reviewing a mo-
tion under MCR 2.116(C)(7), courts must accept the
allegations stated in the plaintiff’s complaint as true
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unless contradicted by documentary evidence submit-
ted by the movant. Maiden v Rozwood, 461 Mich 109,
119; 597 NW2d 817 (1999). The moving party may
support its motion under MCR 2.116(C)(7) with affida-
vits, depositions, admissions, or other admissible docu-
mentary evidence, which the reviewing court must
consider. Id., citing MCR 2.116(G)(5). However, if it is
not apparent on the face of the pleadings that the
moving party is entitled to immunity as a matter of law,
the moving party must support its motion with affida-
vits, depositions, admissions, or other documentary
evidence. MCR 2.116(G)(3). In determining whether to
dismiss a claim under MCR 2.116(C)(7), the reviewing
court must view the pleadings and supporting evidence
in the light most favorable to the nonmoving party to
determine whether the undisputed facts show that the
moving party has immunity. Tryc v Mich Veterans’
Facility, 451 Mich 129, 134; 545 NW2d 642 (1996).
Although governmental entities are generally im-
mune from tort liability when “engaged in the exercise
or discharge of a governmental function,” MCL
691.1407, they remain liable for “bodily injury or dam-
age” caused by their failure to keep highways under
their jurisdiction in “reasonable repair,” MCL
691.1402(1). However, the Legislature provided that, as
a condition of recovery, a person injured by a govern-
mental agency’s failure to properly maintain a highway
under its jurisdiction must serve the governmental
agency with notice of the occurrence and the defect
within 120 days of the injury occurring. MCL
691.1404(1). In the notice, the injured party must
“specify the exact location and nature of the defect,”
must describe “the injury sustained,” and must give the
“names of the witnesses” about which the injured
person knows at the time of the notice. Id.
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The city moved for summary disposition on the
grounds that McLean’s notice was deficient. Specifi-
cally, the city argued that McLean’s notice, which was
dated July 16, 2008, did not include the exact nature of
the defect and did not include a description of the injury
that she sustained. The city attached a copy of the July
16, 2008 letter to its motion for summary disposition.
On its face, that letter did not provide the city with an
adequate description of McLean’s injuries.
McLean argued in response to the city’s motion that
she had submitted two separate letters to the city,
which together satisfied the notice requirements within
the 120 period. Burise v City of Pontiac, 282 Mich App
646, 654-655; 766 NW2d 311 (2009). McLean attached
the second letter to her brief; the second later was dated
September 16, 2008, and addressed to Broadspire.
When McLean’s September 16, 2008, letter is exam-
ined together with her letter from July 16, 2008,
McLean plainly provided the city with the minimum
notice required under MCL 691.1404. And the majority
here seems to concede that the letters would, if read
together, comply with the notice requirements. Never-
theless, the majority concludes that it cannot consider
the second letter because McLean submitted the letter
to Broadspire and—in its view—Broadspire could not
accept the notice on the city’s behalf.
The Legislature provided that the required notice
“may be served upon any individual, either personally,
or by certified mail, return receipt requested, who may
lawfully be served with civil process directed against the
governmental agency....” MCL 691.1404(2). In the
case of a city, process must generally be served on the
“mayor, city clerk, or city attorney.” MCL 600.1925(2).
But it can also be accomplished by sending it to the
“person in charge of the office of any of the above-
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described officers,” MCL 600.1925, or to an “agent
authorized by written appointment,” MCL 600.1930.
1
As can be seen from a cursory reading of these
statutory provisions, McLean could properly serve her
notice on persons other than the mayor, city clerk, or
city attorney. Thus, the mere fact that she served her
notice on someone other than the mayor, city clerk, or
city attorney did not—standing alone—establish that
her second notice was improperly served. Accordingly,
the trial court correctly rejected the city’s claim that it
could not consider this letter because it was not ad-
dressed to the identified city officials.
Despite this, the majority rejects McLean’s second
letter because there “is simply no record evidence that
Broadspire was authorized by written appointment or law
to accept service” on the city’s behalf. That is, the majority
rejects the second letter because, in its view, McLean had
the burden to present evidence that established that the
city had authorized Broadspire to accept notice—and that
it did so through a written instrument—before any notice
sent to Broadspire could be considered. The problem with
this contention is that the city never made that argument.
The city never challenged Broadspire’s authority to re-
ceive process; it merely argued that the notice had to be
sent to its mayor, city clerk, or city attorney. And that
argument was plainly incorrect. In engaging in the analy-
sis that it does, the majority essentially faults McLean for
failing to properly respond to a motion that the city never
made—that is, the majority seems to anticipate the defect
in the city’s actual motion and solves that problem by
making the argument that the city could have made had it
thought to do so. But it is not this Court’s obligation or
1
These statutory provisions have been incorporated into our court
rules at MCR 2.105(G) and MCR 2.105(H).
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place to remedy the deficiencies in a party’s position on
a motion for summary disposition; rather, to ensure
fundamental fairness in the litigation process, this
Court will typically only consider the arguments actu-
ally made and the evidence actually presented in con-
sidering the propriety of a trial court’s decision on a
motion for summary disposition. See Barnard Mfg, 285
Mich App at 380-383 (stating that this Court will not
consider evidence that was not actually identified by the
parties and that it is not the courts’ responsibility to
advocate on a party’s behalf); Walters v Nadell, 481
Mich 377, 387-388; 751 NW2d 431 (2008) (noting that
the parties must raise an issue before the trial court or
waive appellate review).
Because the argument that the city actually made
before the trial court was insufficient to warrant disre-
garding the letter to Broadspire, the trial court was not
precluded from considering it. This is not to say that the
city might not be able to establish that the second notice
was invalid; it may be able to do just that in a properly
supported motion for summary disposition, but the
motion at issue here was not such a motion.
Even setting aside the fact that the city never made
the argument on which the majority now relies to
reverse the trial court’s decision, I cannot agree with
the majority’s premise that McLean failed to minimally
support her position with evidence that the city autho-
rized Broadspire to receive process.
In response to the city’s motion for summary dispo-
sition, McLean argued that she properly submitted a
second notice to the city. In support of her contention,
she attached her letter dated September 16, 2008, to her
brief. She also provided evidence that the city’s claims
adjuster solicited this second letter in a letter dated
August 7, 2008. When this letter is read in the light
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most favorable to McLean, which we must do, see Tryc,
451 Mich at 134, a reasonable fact-finder could conclude
that the city contractually delegated to Broadspire the
authority to handle every aspect of all civil claims
against the city—that is, a reasonable fact-finder could
conclude that Broadspire was an agent for purposes of
MCL 600.1930.
In the August 7, 2008, letter, Flory Morisette wrote to
McLean’s lawyer on Broadspire letterhead; she stated:
“We are in receipt of your letter dated July 16, 2008
regarding the above claimant, Patricia McLean. We are
the [third-party administrator] for the city of Dearborn
under the self insured liability program.” Morisette
requested McLean’s personal information and informa-
tion about the accident and her medical treatment,
including copies of her medical records and bills. Mori-
sette closed the letter by requesting a meeting:
We would like to meet at your office to talk with both you
and your client. We will discuss her loss facts and injuries.
Please contact your client to obtain several dates and times
of availability and contact me immediately to schedule a
meeting. We are looking forward to meeting you and your
client in the very near future.
Morisette’s statements strongly suggest that the city
granted Broadspire the authority to handle McLean’s
civil claim. Although McLean sent her first letter to the
city’s mayor, Morisette stated that “we” (referring to
Broadspire and its staff) are in “receipt” of that letter. A
reasonable fact-finder could infer that Morisette was
actually representing to McLean’s lawyer that she and
her company were the lawfully appointed representa-
tives for the city; the fact-finder could also infer that
Broadspire would not have had McLean’s information
or be “in receipt” of her first letter unless the city had
in fact authorized Broadspire to act on the city’s behalf.
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D
ISSENTING
O
PINION BY
M. J. K
ELLY
,P.J.
A reasonable fact-finder could conclude that the admin-
istrator of a self-insured fund would have broad author-
ity to handle claims, which may include the authority to
receive future service of process. And this inference was
further bolstered by Morisette’s assertion that she—not
an official from the city’s office—wanted to meet with
McLean and her lawyer to discuss McLean’s injuries
and the facts of her case. This last statement, again,
permits an inference that the city had authorized
Broadspire to act on its behalf. Finally, a reasonable
fact-finder could infer that the city granted this author-
ity to Broadspire in a written agreement. Thus, Broad-
spire’s letter is evidence, however limited, that the city
actually authorized Broadspire to act as the city’s agent
for purposes of MCL 600.1930. Consequently, the trial
court could properly consider this second letter in
determining whether McLean complied with the notice
requirements.
On the record evidence and arguments properly
before this Court, the city failed to establish that it was
entitled to summary disposition on the ground that
McLean did not give it proper notice under MCL
691.1404. Consequently, I would affirm.
2013] M
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EAN V
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EARBORN
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D
ISSENTING
O
PINION BY
M. J. K
ELLY
,P.J.
JACKSON COUNTY v CITY OF JACKSON
JACKSON COFFEE COMPANY v CITY OF JACKSON
Docket Nos. 307685 and 307843. Submitted June 27, 2013, at Lansing.
Decided August 1, 2013, at 9:05 a.m.
Jackson County brought an original action in the Court of Appeals
against the city of Jackson, alleging that the city violated provi-
sions of the Headlee Amendment, Const 1963, art 9, §§ 25-34,
when it adopted an ordinance, Ordinance No. 2011.02, that
created a storm water utility and imposed under the ordinance a
storm water management charge on all property owners within
the city to generate revenue to pay for the services provided by the
storm water utility. The county alleged that the storm water
management charge was actually a tax levied without voter
approval in violation of § 31 of the Headlee Amendment, Const
1963, art 9, § 31. The county sought declaratory, injunctive, and
monetary relief. (Docket No. 307685.)
Jackson Coffee Company and Klein Brothers, LLC, also
brought an original action in the Court of Appeals against the city
of Jackson, alleging essentially the same facts and seeking the
same relief. (Docket No. 307843.) The Court of Appeals consoli-
dated the actions.
The Court of Appeals held:
1. A charge that is a user fee is not affected by the Headlee
Amendment. There is no bright-line test to distinguish a valid user
fee from a tax that violates the Headlee Amendment. However,
generally, a fee is exchanged for a service rendered or a benefit
conferred and some reasonable relationship exists between the
amount of the fee and the value of the service or benefit. The three
primary criteria of a fee are that it serves a regulatory purpose, it
is proportionate to the necessary costs of the service, and it is
voluntary. A tax, however, is designed to raise revenue.
2. The storm water management charge imposed in this case
serves the dual purposes of furthering a regulatory purpose and
raising revenue. The management charge has an overriding
revenue-generating purpose that outweighs the minimal regula-
tory purpose of the charge. The storm water management charge
is a tax, not a utility user fee.
90 302 M
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3. A true fee confers a benefit on the particular person on
whom it is imposed, whereas a tax confers a benefit on the general
public. Although a regulatory fee may confer a benefit on both the
general public and the particular individuals who pay the fee and
still maintain its regulatory character, a charge is not a regulatory
fee in the first instance unless it is designed to confer a particu-
larized benefit on the property owners who pay the charge. In
these cases, the Court of Appeals could not identify any particu-
larized benefit the charge confers on the property owners that is
not also conferred on the general public. The lack of a correspon-
dence between the management charge and a particularized
benefit conferred to the parcels supports a conclusion that the
charge is a tax.
4. A fee need not generate an amount equal to that required to
support the services the ordinance regulates in order to survive
scrutiny. However, where the revenue generated by a regulatory
fee exceeds the cost of regulation, the fee is actually a tax in
disguise. A permissible utility service charge is one that reflects
the actual costs of use, metered with relative precision in accor-
dance with available technology, including some capital invest-
ment component.
5. The method used by the city to apportion the management
charges among all urban properties emphasizes administrative
convenience and ease of measurement and suggests an absence of
a close proportional relationship between the amount of runoff
attributable to a particular parcel and the management charge, as
does the fact that the method fails to consider property character-
istics relevant to runoff generation.
6. Capital reserves of public utilities are properly funded by
true user fees closely calibrated to the actual use of the service or
the price paid for a commodity. The management charge at issue in
these cases is not a true user fee. The actual use of the storm water
sewer system by each parcel is not accounted for with the requisite
level of precision necessary to support a conclusion that the charge
is proportionate to the costs of the services provided.
7. The ordinance is effectively compulsory. This lack of volition
supports the conclusion that the management charge is a tax
imposed in violation of § 31 of the Headlee Amendment.
A declaratory judgment entered in favor of plaintiffs; city
ordered to cease collecting the charge and ordered to reimburse
only plaintiffs for any charges paid to date.
1. T
AXATION —
H
EADLEE
A
MENDMENT —
C
ONSTITUTIONAL
L
AW
.
Section 31 of the Headlee Amendment prohibits units of local
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government from levying any new tax or increasing any existing
tax above authorized rates without the approval of the electorate
(Const 1963, art 9, § 31).
2. T
AXATION —
F
EES —
M
UNICIPAL
C
ORPORATIONS
.
The three primary criteria of a fee are that it serves a regulatory
purpose, is proportionate to the necessary costs of the service, and
is voluntary; a tax is primarily designed to raise revenue; a true fee
confers a benefit on the particular person on whom it is imposed,
while a tax confers a benefit on the general public; although a
regulatory fee may confer a benefit on both the general public and
the particular individuals who pay the fee and still maintain its
regulatory function, a charge is not a regulatory fee in the first
instance unless it is designed to confer a particularized benefit on
the individuals who must pay the charge.
3. T
AXATION —
F
EES —
M
UNICIPAL
C
ORPORATIONS
.
Fees charged by a municipality for providing a service must be
reasonably proportionate to the direct and indirect costs of pro-
viding the service; the fees need not generate the exact amount
required to support the service provided, however, when the
revenue generated by a fee exceeds the costs of providing the
service, the fee may be a tax in disguise.
4. M
UNICIPAL
C
ORPORATIONS —
U
TILITY
S
ERVICES
C
HARGES —
U
SER
F
EES —
C
APITAL
R
ESERVES
.
A permissible utility service charge is one that reflects the actual
costs of use, metered with relative precision in accordance with
available technology, including some capital investment compo-
nent; capital reserves of public utilities are properly funded by true
user fees closely calibrated to the actual use of the service or the
price paid for a commodity.
Cohl, Stoker & Toskey, PC (by Timothy M. Perrone),
for Jackson County.
Brian W. Surgener for the Jackson Coffee Company
and Klein Brothers, LLC.
Julius A. Giglio, City Attorney, Bethany M. Smith,
Deputy City Attorney, and Miller Canfield Paddock and
Stone, PLC (by Michael P. McGee, Sonal Hope Mithani,
and Jeffrey S. Aronoff), for the city of Jackson.
92 302 M
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Before: M
URPHY
, C.J., and H
OEKSTRA
and O
WENS
,JJ.
P
ER
C
URIAM
. Plaintiffs commenced these original
actions in the Court of Appeals under Const 1963,
art 9, §§ 25-34, popularly known as the Headlee
Amendment. The actions were consolidated by the
Court of Appeals. The Jackson City Council adopted
Ordinance No. 2011.02, pursuant to which the city
created a storm water utility and imposed a storm
water management charge on all property owners
within the city to generate revenue to pay for the
services provided by the utility, which include, among
others, street sweeping, catch basin cleaning, and leaf
pickup and mulching. The question posed by these
actions is whether the city, by shifting the method of
funding certain preexisting government activities
from tax revenues to a utility charge, ran afoul of § 31
of the Headlee Amendment, Const 1963, art 9, § 31,
1
as construed and applied in Bolt v City of Lansing, 459
Mich 152; 587 NW2d 264 (1998). We answer this
question in the affirmative and hold that the city’s
storm water management charge is a tax, the imposi-
tion of which violates the Headlee Amendment because
the city did not submit Ordinance 2011.02 to a vote of
the qualified electors of the city. The charge is null and
void.
1
Although plaintiffs allege a violation of § 25, Const 1963, art 9, § 25,
their enforcement actions implicate only § 31. See, e.g., Bolt v City of
Lansing, 459 Mich 152; 587 NW2d 264 (1998). Section 25 of the Headlee
Amendment summarizes the “fairly complex system of revenue and tax
limits” imposed by the amendment, Durant v Michigan, 456 Mich 175,
182; 566 NW2d 272 (1997), and is implemented through the other
sections of the amendment, Const 1963, art 9, § 25. Additionally, we
decline to address plaintiffs’ claims that the imposition of the manage-
ment charge violates Const 1963, art 4, § 32 and Const 1963, art 9, § 6
because these claims are outside the scope of our original jurisdiction
conferred by § 32 of the Headlee Amendment, Const 1963, art 9, § 32.
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I
The city maintains and operates separate storm
water and waste water management systems. Various
state permits authorize the city to discharge storm
water through its separate storm water drainage sys-
tem to the Grand River, as well as other waters of the
state. Historically, the city has funded the operation and
maintenance of its storm water management system
with money from the city’s general and street funds.
The money in these funds is generated through the
collection of ad valorem property taxes, gasoline taxes,
and vehicle registration fees. With revenue from these
taxes and fees in decline, the city retained an engineer-
ing and consulting firm to study the feasibility of
establishing a storm water utility for the purpose of
funding storm water management through dedicated
“user fees.” As acknowledged by the city in its Storm-
water Management Manual,
[w]hen subdivisions, roads and commercial developments
are built or improved in the City of Jackson the City must
pay for managing the resulting storm runoff. The City
must install catch basins to capture storm water and storm
sewers to convey the storm water to streams or rivers,
ensuring it does not drain into the sanitary wastewater
system and create sewer overflows. Furthermore the City
must maintain the entire storm water collection system. In
the past the City performed this work without a dedicated
revenue source. The City used money from the general
fund or the road budget, thus taking funds away from other
critical programs. The storm water system is an expensive
piece of the City’s municipal infrastructure. The City’s
water and sanitary wastewater systems each have their
own dedicated revenue sources derived from water and
sanitary wastewater user fees. Water and sanitary waste-
water users pay user fees that are partially calculated
based on water consumption. However, this has not been
the case with storm water management, which has had no
94 302 M
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user fees attached to it. Municipalities across the country
are changing this. They now view their storm water
systems as utilities similar to their water and sanitary
wastewater systems. They are developing storm water user
fee structures to pay for storm water planning, adminis-
tration, construction and operation and maintenance.
Following the completion of the feasibility study, the
city’s Department of Public Works requested that the
city create a storm water utility “to fund the activities
currently included in the General Fund Drains at
Large, Leaf Pickup, Mulching, Street Cleaning and
Catch Basin Maintenance in the Major and Local Street
accounts.” The Jackson City Council adopted Ordi-
nance 2011.02, known as the “Storm Water Utility
Ordinance,” at its January 11, 2011, meeting.
Ordinance 2011.02 establishes a storm water utility
to operate and maintain the city’s storm water manage-
ment program. The ordinance funds this program
through an annual storm water system management
charge imposed on each parcel of real property, includ-
ing undeveloped parcels, located within the city. All
revenues generated by the storm water management
charge are deposited in a storm water enterprise fund
and “[n]o part of the funds...maybetransferred to
the general operating fund or used for any purpose
other than undertaking the storm water management
program, and operating and maintaining a storm water
system.” More specifically, the money in the enterprise
fund may be used only to pay the “costs to acquire,
construct, finance, operate and maintain a storm water
system.”
The management charge is computed using a for-
mula developed by the engineering consultant that
roughly estimates the amount of storm water runoff of
each parcel. Anticipated storm water runoff is com-
puted in terms of equivalent hydraulic area (EHA). This
2013] J
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method of computation involves an estimation of the
amount of storm water leaving each parcel of property
based on the impervious and pervious surface areas of
each parcel. The ordinance defines the phrase “imper-
vious area or surface” as “a surface area which is
compacted or covered with material that is resistant to
or impedes permeation by water, including but not
limited to, most conventionally surfaced streets, roofs,
sidewalks, patios, driveways, parking lots, and any
other oiled, graveled, graded, or compacted surfaces.”
“[P]ervious area or surface” is “all land area that is not
impervious.”
The EHA base unit used to compute the amount of a
management charge is the square footage for the aver-
age single family residential parcel. One EHA base unit
is 2,125 sq. ft. The pervious and impervious areas of
residential parcels with two acres or less of surface area
are not measured individually. Instead, such parcels are
assigned one EHA unit and charged a flat rate estab-
lished by resolution of the city council, which is billed
quarterly. For all other parcels, the management charge
is based on the actual measurements of the pervious
and impervious areas of each individual parcel. The
number of EHA units for these latter parcels is calcu-
lated by multiplying a parcel’s impervious area in
square feet by a runoff factor
2
of 0.95 and the pervious
area in square feet by a runoff factor of 0.15, adding
these two areas and then dividing that total by 2,125 sq.
ft. The number of EHA units is then multiplied by
$2.70
3
to arrive at the monthly management charge.
2
The runoff factors are defined as the approximate fraction of rainfall
that runs off the property to the storm drainage system.
3
The city has reduced this figure to $2.50 since the filing of these suits.
The city also has reduced the flat rate charged to the owners of
residential property of two acres or less from $8 to $7.50.
96 302 M
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The ordinance allows property owners to receive
credits against the management charge for actions
taken to reduce storm water runoff from their respec-
tive properties. At the time plaintiffs commenced these
original actions, the ordinance allowed a residential
property owner to receive a 50 percent credit against
the charge by implementing city-approved “storm wa-
ter best management practices” to capture and filter or
store storm water. Such best practices include the
creation of rain gardens or vegetated filter strips or the
use of rain barrels or a cistern. The ordinance also
allowed an owner of a nonresidential property to receive
a credit against the service charge of between 37.5 and
75 percent for implementing best management prac-
tices designed to control storm water peak flows
through the construction and use of detention or reten-
tion ponds. Schools could receive a 25 percent “educa-
tion credit” for providing students with a regular and
continuing program of education concentrating on the
stewardship of the state’s water resources. Finally, an
owner of a parcel of real property that is contiguous to
the Grand River could receive a credit of up to 75
percent for directly discharging storm water into the
river. After the filing of these actions, and through
amendments to the ordinance adopted by the city, the
city increased the amount of credit allowed for certain
property owners who engage in best management prac-
tices identified by the city.
Ordinance 2011.02 creates a right to an administra-
tive appeal, but limits the scope of that appeal to “the
grounds that the impervious and/or pervious area of the
property is less than estimated by the Administrator or
that the credit allowable to the property is greater than
that estimated by the Administrator.” Additionally, the
ordinance authorizes the administrator of the utility to
enforce payment of the management charge by discon-
2013] J
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tinuing water service to the property of a delinquent
property owner, by instituting a civil action to collect
any unpaid management charges, and by placing a lien
against property for the unpaid charges and enforcing
the lien “in the same manner as provided for the
collection of taxes assessed upon such roll and the
enforcement of the lien for the taxes.”
The city began billing property owners for the man-
agement charge in May, 2011. Plaintiffs, who are prop-
erty owners within the city, received invoices from the
city for the management charges assessed against their
respective properties, with their respective invoices for
water service to their properties.
On December 16, 2011, plaintiff Jackson County
commenced its instant Headlee Amendment enforce-
ment action. Plaintiffs Jackson Coffee Company and
Klein Brothers, LLC, commenced their enforcement
action on December 28, 2011. Plaintiffs’ claims for
declaratory, injunctive, and monetary relief are predi-
cated on the belief that the storm water management
charge constitutes a disguised tax and, therefore, the
imposition of the charge by the city violates § 31 of the
Headlee Amendment because the city imposed the tax
without a vote of the city’s electorate.
II
Plaintiffs bear the burden of establishing the uncon-
stitutionality of the city’s storm water management
charge. Adair v Michigan, 470 Mich 105, 111; 680
NW2d 386 (2004); Kenefick v Battle Creek, 284 Mich
App 653, 655; 774 NW2d 925 (2009).
Plaintiffs’ enforcement actions implicate § 31 of the
Headlee Amendment, 1963 Const, art 9, § 31. An appli-
cation of § 31 is triggered by the levying of a tax. Bolt,
459 Mich at 158-159. “Section 31 prohibits units of local
98 302 M
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government from levying any new tax or increasing any
existing tax above authorized rates without the ap-
proval of the unit’s electorate.” Durant v Michigan, 456
Mich 175, 183; 566 NW2d 272 (1997). Thus, a tax
imposed without voter approval “unquestionably vio-
lates” § 31. Bolt, 459 Mich at 158. However, a charge
that is a user fee “is not affected by the Headlee
Amendment.” Id. at 159. “There is no bright-line test
for distinguishing between a valid user fee and a tax
that violates the Headlee Amendment.” Id. at 160.
“Generally, a fee is exchanged for a service rendered or
a benefit conferred, and some reasonable relationship
exists between the amount of the fee and the value of
the service or benefit. A tax, on the other hand, is
designed to raise revenue.” Id. at 161 (quotation marks
and citations omitted).
The seminal—and only—case addressing the distinc-
tion between a fee and a tax, in the context of storm
water management, is our Supreme Court’s decision in
Bolt.InBolt, the city of Lansing sought to limit the
polluting of local rivers that resulted when heavy pre-
cipitation caused the city’s combined storm water and
sanitary sewer systems to overflow and discharge into
those rivers combined storm water and untreated or
partially treated sewage. Id. at 154-155. To this end, the
city decided to separate the remaining combined storm
and sanitary sewer system, at a cost of $176 million. Id.
at 155. As a means to fund the costs of the sewer system
separation,
the Lansing City Council adopted Ordinance 925, which
provides for the creation of a storm water enterprise fund
“to help defray the cost of the administration, operation,
maintenance, and construction of the stormwater sys-
tem....”Theordinance provides that costs for the storm
water share of the CSO [combined sewer overflow] pro-
gram (fifty percent of total CSO costs, including adminis-
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tration, construction, and engineering costs) will be fi-
nanced through an annual storm water service charge.
This charge is imposed on each parcel of real property
located in the city using a formula that attempts to roughly
estimate each parcel’s storm water runoff.
Estimated storm water runoff is calculated in terms of
equivalent hydraulic area (EHA). As defined by the ordi-
nance, EHA is “based upon the amount of pervious and
impervious areas within the parcel multiplied by the runoff
factors applicable to each.” Impervious land area, which
impedes water adsorption, thus increasing storm water
runoff, is defined as
[t]he surface area within a parcel that is covered by
any material which retards or prevents the entry of
water into the soil. Impervious land area includes,
but is not limited to, surface areas covered by build-
ings, porches, patios, parking lots, driveways, walk-
ways and other structures. Generally, all non-
vegetative land areas shall be considered impervious.
Pervious land area is defined as “[a]ll surface area within a
parcel which is not impervious[.]”
Residential parcels measuring two acres or less are not
assessed charges on the basis of individual measurements,
but, rather, are charged pursuant to flat rates set forth in
the ordinance. These rates are based on a predetermined
number of EHA units per one thousand square feet. For
residential parcels over two acres, commercial parcels, and
industrial parcels, the EHA for an individual parcel is
calculated by multiplying the parcel’s impervious area by a
runoff factor of 0.95 and pervious area by a runoff factor of
0.15 and adding the two areas.
Charges not paid by the deadline are considered delin-
quent and subject to delayed payment charges, rebilling
charges, property liens (if the charge remains unpaid for
six months or more), and attorney fees if a civil suit is filed
to collect delinquent charges. The ordinance further pro-
vides for a system of administrative appeals by property
owners contending that their properties have been unfairly
assessed. Id. at 155-157 (footnotes omitted).]
100 302 M
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A taxpayer within the city of Lansing brought suit
against the city on the ground that the storm water
service charge constituted a tax disguised as a user fee
that violated §§ 25 and 31 of the Headlee Amendment
because the tax had not been submitted to or approved
by a vote of the people. Bolt, 459 Mich at 154, 158. Our
Supreme Court agreed, concluding that the storm water
service charge was not a valid user fee, but, instead, was
“a tax, for which approval is required by a vote of the
people.” Id. at 154. The Court reached this conclusion
after considering a multiplicity of factors pertaining to
the characteristics of fees and taxes, including the three
primary criteria of a fee, which are: (1) a fee serves a
regulatory purpose, (2) a fee is proportionate to the
necessary costs of the service, and (3) a fee is voluntary.
Id. at 161-162.
With regard to the first two criteria, the Court
concluded that the storm water service charge neither
served a regulatory purpose nor was proportionate to
the necessary costs of the service. Rather, the Court
concluded that the service charge served a revenue-
raising purpose. Id. at 163-167. According to the Court,
“ ‘the “fee” is not structured to simply defray the costs
of a “regulatory” activity, but rather to fund a public
improvement designed to provide a long-term benefit to
the city and all its citizens.’ ” Id. at 164, quoting Bolt v
City of Lansing, 221 Mich App 79, 91; 561 NW2d 423
(1997) (M
ARKMAN
, J., dissenting). The Court reached
this conclusion, in part, because,
[i]n instituting the storm water service charge, the city of
Lansing has sought to fund fifty percent of the $176 million
dollar cost of implementing the CSO control program over
the next thirty years. A major portion of this cost (approxi-
mately sixty-three percent) constitutes capital expendi-
tures. This constitutes an investment in infrastructure as
2013] J
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opposed to a fee designed simply to defray the costs of a
regulatory activity. [Bolt, 459 Mich at 163.]
For this same reason, the Court concluded that the
“ ‘revenue to be derived from the charge is clearly in
excess of the direct and indirect costs of actually using
the storm water system over the next thirty years and,
being thus disproportionate to the costs of the services
provided and the benefits rendered, constitutes a tax.’ ”
Id. at 164, quoting Bolt, 221 Mich App at 91 (M
ARKMAN
,
J., dissenting).
The Court further concluded that the storm water
service charge neither served a regulatory purpose nor
was proportionate to the necessary costs of the service
on the basis of the following two related failings of the
ordinance:
First, the charges imposed do not correspond to the
benefits conferred. Approximately seventy-five percent of the
property owners in the city are already served by a separated
storm and sanitary sewer system. In fact, many of them have
paid for such separation through special assessments. Under
the ordinance, these property owners are charged the same
amount for storm water service as the twenty-five percent of
the property owners who will enjoy the full benefits of the
new construction. Moreover, the charge applies to all property
owners, rather than only to those who actually benefit. A true
“fee,” however, is not designed to confer benefits to the
general public, but rather to benefit the particular person on
whom it is imposed. Bray [ v Dep’t of State, 418 Mich 149,
162; 341 NW2d 92 (1983); Nat’l Cable Television Ass’n v
United States & Federal Communications Comm, 415 US
336, 340-342; 94 S Ct 1146; 39 L Ed 2d 370 (1974)].
The distinction between a fee and a tax is one that
is not always observed with nicety in judicial deci-
sions, but according to some authorities, any pay-
ment exacted by the state or its municipal subdivi-
sions as a contribution toward the cost of
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maintaining governmental functions, where the spe-
cial benefits derived from their performance is
merged in the general benefit, is a tax. [71 Am Jur 2d,
State and Local Taxation, § 15, p 352.]
In this case, the lack of correspondence between the
charges and the benefits conferred demonstrates that the
city has failed to differentiate any particularized benefits to
property owners from the general benefits conferred on the
public.
This conclusion is buttressed by the fact that the
acknowledged goal of the ordinance is to address environ-
mental concerns regarding water quality. Improved water
quality in the Grand and Red Cedar Rivers and the
avoidance of federal penalties for discharge violations are
goals that benefit everyone in the City, not only property
owners. As stated by the Court of Appeals dissent[:]
The extent of any particularized benefit to prop-
erty owners is considerably outweighed by the gen-
eral benefit to the citizenry of Lansing as a whole in
the form of enhanced environmental quality. . . .
When virtually every person in a community is a
“user” of a public improvement, a municipal govern-
ment’s tactic of augmenting its budget by purporting
to charge a “fee” for the “service” rendered should be
seen for what it is: a subterfuge to evade constitu-
tional limitations on its power to raise taxes. [Bolt,
221 Mich App at 96 (M
ARKMAN
, J., dissenting).]
The second failing that supports the conclusion that the
ordinance fails to satisfy the first two criteria is the lack of
a significant element of regulation. See Bray, supra at
161-162; Vernor [ v Secretary of State, 179 Mich 157,
167-169; 146 NW 338 (1914)]. The ordinance only regulates
the amount of rainfall shed from a parcel of property as
surface runoff; it does not consider the presence of pollut-
ants on each parcel that contaminate such runoff and
contribute to the need for treatment before discharge into
navigable waters. Additionally, the ordinance fails to dis-
tinguish between those responsible for greater and lesser
levels of runoff and excludes street rights of way from the
2013] J
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properties covered by the ordinance. Moreover, there is no
end-of-pipe treatment for the storm water runoff. Rather,
the storm water is discharged into the river untreated.
[Bolt, 459 Mich at 165-167.]
Next, the Court found that the charge lacked any
element of voluntariness, which the Court found to be
further evidence that the charge was a tax and not a
user fee. The Court opined:
One of the distinguishing factors of a tax is that it is
compulsory by law, “whereas payments of user fees are only
compulsory for those who use the service, have the ability to
choose how much of the service to use, and whether to use it
at all.” Headlee Blue Ribbon Commission [, A Report to
Governor John Engler, § 5, p 29]. The charge in the present
case is effectively compulsory. The property owner has no
choice whether to use the service and is unable to control the
extent to which the service is used. The dissent suggests that
property owners can control the amount of the fee they pay by
building less on their property. However, we do not find that
this is a legitimate method for controlling the amount of the
fee because it is tantamount to requiring property owners to
relinquish their rights of ownership to their property by
declining to build on the property. [Bolt, 459 Mich at 167-168
(footnote omitted).]
Finally, the Court found that the following factors
also supported the conclusion that the storm water
charge was a tax: (1) the revenue generated by the
charge was to be used on that portion of the project that
had been previously funded by general fund revenue;
(2) the indebtedness generated by the levying of the
charge could be secured by a lien on property; and (3)
the charge was billed through the city assessor’s office
and may be sent with the December property tax
statements. Id. at 168-169.
The Court closed its opinion with the following
admonition:
104 302 M
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We conclude that the storm water service charge im-
posed by Ordinance 925 is a tax and not a valid user fee. To
conclude otherwise would permit municipalities to supple-
ment existing revenues by redefining various government
activities as “services” and enacting a myriad of “fees” for
those services. To permit such a course of action would
effectively abrogate the constitutional limitations on taxa-
tion and public spending imposed by the Headlee Amend-
ment, a constitutional provision ratified by the people of
this state. In fact, the imposition of mandatory “user fees”
by local units of government has been characterized as one
of the most frequent abridgments “of the spirit, if not the
letter,” of the amendment.
The danger to the taxpayer of this burgeoning
phenomenon [the imposition of mandatory user fees]
is as clear as are its attractions to local units of
government. The “mandatory user fee” has all the
compulsory attributes of a tax, in that it must be paid
by law without regard to the usage of a service, and
becomes a tax lien of the property. However, it
escapes the constitutional protections afforded voters
for taxes. It can be increased any time, without limit.
This is precisely the sort of abuse from which the
Headlee Amendment was intended to protect taxpay-
ers. [Headlee Blue Ribbon Commission Report, su-
pra, § 5, pp 26-27.] [Bolt, 459 Mich at 169.]
In the present cases, the documents provided this
Court reveal that the management charge serves a dual
purpose. The charge furthers a regulatory purpose by
financing a portion of the means by which the city
protects local waterways, including the Grand River,
from solid pollutants carried in storm and surface water
runoff discharged from properties within the city, as
required by state and federal regulations. The charge
also serves a general revenue-raising purpose by shift-
ing the funding of certain preexisting government ac-
tivities from the city’s declining general and street fund
revenues to a charge-based method of revenue genera-
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tion. This latter method of revenue generation raises
revenue for general public purposes by augmenting the
city’s general and street funds in an amount equal to
the revenue previously used to fund the activities once
provided by the city’s Engineering and Public Work
Departments and now bundled together and assigned to
the storm water utility. Because the ordinance and the
management charge serve competing purposes, the
question becomes which purpose outweighs the other.
Id. at 165-167, 169. We conclude that the minimal
regulatory purpose served by the ordinance and the
related management charge is convincingly outweighed
by the revenue-raising purpose of the ordinance.
Ordinance 2011.02 suffers from the same lack of a
significant element of regulation as the Lansing ordi-
nance did. Although the ordinance confers the power of
regulation on the utility’s administrator, the ordinance
contains few provisions of regulation and no provisions
that truly regulate the discharge of storm and surface
water runoff, with the exception of the provision that
allows for credits against the management charge for
the use of city-approved storm water best management
practices. Moreover, as was the case in Bolt, the ordi-
nance fails to require either the city or the property
owner to identify, monitor, and treat contaminated
storm and surface water runoff and allows untreated
storm water to be discharged into the Grand River. Bolt,
459 Mich at 164-167. In these regards, the city’s ordi-
nance suffers from the same regulatory weaknesses as
did the Lansing ordinance struck down as unconstitu-
tional in Bolt.
Further, the documents generated by and on behalf
of the city and provided this Court clearly show that the
desire to protect the city’s general and street funds
from the costs of operating and maintaining the exist-
106 302 M
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ing storm water management system constituted the
most significant motivation for adopting the ordinance
and management fee. As previously noted, before the
adoption of the ordinance, the city paid the costs of
operating and maintaining the storm water system,
including the costs of street and catch basin cleaning
and leaf pickup and mulching, with revenue from the
city’s general and street funds. In the documents sup-
plied this Court, the city readily admits that the costs
associated with maintaining the storm water system
resulted in money from these funds being directed away
from “other critical programs” and that budgetary
pressures, including declining general fund revenue,
necessitated the tapping of new sources of funding for
the maintenance of the storm water system. Similarly,
the storm water utility feasibility study commissioned
by the city reflects that the primary purposes of the
study were to devise a method of calculating a storm
water management charge of sufficient amount to fund
the preexisting services the city desired to delegate to
the utility and to convince the city council that the
imposition of the recommended management charge
would not violate Bolt and the Headlee Amendment.
The fact that the impetus for creating the storm water
utility and for imposing the charge was the need to
generate new revenue to alleviate the budgetary pres-
sures associated with the city’s declining general fund
and street fund revenues, and the fact that the city’s
activities were previously paid for by these other funds
are factors that support a conclusion that the manage-
ment charge has an overriding revenue-generating pur-
pose that outweighs the minimal regulatory purpose of
the charge and, therefore, that the charge is a tax, not
a utility user fee. The Headlee Amendment bars mu-
nicipalities from supplementing their existing revenue
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streams by redefining various government activities as
services and then enacting “user fees” for those ser-
vices. Id. at 169.
Likewise, the lack of a correspondence between the
charge imposed and any particularized benefit con-
ferred by the charge supports a conclusion that the
charge is a tax and not a utility user fee. A true fee
confers a benefit upon the particular person on whom it
is imposed, whereas a tax confers a benefit on the
general public. Id. at 165. Although a regulatory fee
may confer a benefit on both the general public and the
particular individuals who pay the fee and still main-
tain its regulatory character, a charge is not a regula-
tory fee in the first instance unless it is designed to
confer a particularized benefit on the property owners
who must pay the fee. Id. at 165-166; USA Cash #1, Inc
v Saginaw, 285 Mich App 262, 281; 776 NW2d 346
(2009). In the present cases, we cannot readily identify
any particularized benefit the charge confers on the
property owners that is not also conferred upon the
general public. The city indicated in its original re-
sponse to plaintiffs’ complaints that the charge “as-
sur[es] cleanliness and safety of the State’s waters and
watercourses.” The city also indicated that the manage-
ment charge enables the city to protect the public
health and safety, to reduce the likelihood of flooding
caused by excessive storm water runoff, to reduce the
potential for land erosion, which can damage roads,
bridges and other infrastructure and thereby endanger
the public, and to prevent sewer overflows by providing
a mechanism to collect and divert rain water runoff
from the sanitary sewer system. We do not doubt that a
well-maintained storm water management system pro-
vides such benefits. Nevertheless, these concerns ad-
dressed by the city’s ordinance, like the environmental
concerns addressed by Lansing’s ordinance in Bolt,
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benefit not only the property owners subject to the
management charge, but also everyone in the city in
roughly equal measure, as well as everyone who oper-
ates a motor vehicle on a Jackson city street or roadway
or across a city bridge, everyone who uses the Grand
River for recreational purposes downriver from the city,
and everyone in the Grand River watershed. This lack
of a correspondence between the management charge
and a particularized benefit conferred to the parcels
supports our conclusion that the management charge is
a tax. Bolt, 459 Mich at 166.
Our conclusion regarding the proportionality of the
charge further buttresses the conclusion that the man-
agement fee is a tax.
“Fees charged by a municipality must be reasonably
proportionate to the direct and indirect costs of provid-
ing the service for which the fee is charged.” Kircher v
City of Ypsilanti, 269 Mich App 224, 231-232; 712 NW2d
738 (2005). The fact that the fee only needs to be
“reasonable proportionate” suggests that mathematic
precision is not necessary in calculating the fee. Gra-
ham v Kochville Twp, 236 Mich App 141, 154-155; 599
NW2d 793 (1999). Thus, the fee need not generate an
amount equal to that required to support the services
the ordinance regulates in order to survive scrutiny;
however, where the revenue generated by a regulatory
“fee” exceeds the cost of regulation, the “fee” is actually
a tax in disguise. Westlake Transp, Inc v Pub Serv
Comm, 255 Mich App 589, 614-615; 662 NW2d 784
(2003). This Court must presume the amount of the fee
to be reasonable, “ ‘unless the contrary appears upon
the face of the law itself, or is established by proper
evidence’....” Graham, 236 Mich App at 154-155,
quoting Vernor v Secretary of State, 179 Mich 157, 168;
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146 NW 338 (1914); see also Wheeler v Shelby Charter
Twp, 265 Mich App 657, 665-666; 697 NW2d 180 (2005).
A permissible utility service charge is one that “ ‘re-
flects the actual costs of use, metered with relative
precision in accordance with available technology, in-
cluding some capital investment component....’”
Bolt, 459 Mich at 164-165, quoting Bolt, 221 Mich App
at 92 (M
ARKMAN
, J., dissenting). In the present cases, the
management charge is predicated on the assumption
that properties contribute to runoff, and, hence, storm
sewer use, as a direct function of the size of a parcel’s
imperious and pervious areas. Despite this assumption,
residential parcels measuring two acres or less are
charged a flat rate based on the average EHA of all
single family parcels, and not on the individual mea-
surements of each parcel’s impervious and pervious
areas. Single family residential parcels account for
12,209 or 83 percent of the 14,743 parcels within the
city. According to the city, it is cost-prohibitive to
calculate the EHA units for each single family residen-
tial parcel on the basis of actual measurements of
impervious and pervious areas of each parcel. In con-
trast, residential parcels measuring over two acres and
commercial, industrial and institutional parcels of all
sizes are assessed a management charge based on the
individual measurements of each parcel’s impervious
and pervious areas. This method of apportioning the
management charges among all urban properties em-
phasizes administrative convenience and ease of mea-
surement and, thereby, suggests an absence of a close
proportional relationship between the amount of runoff
attributable to a particular parcel and the management
charge, as does the fact that the method of calculating
the charge fails to consider property characteristics
relevant to runoff generation, such as a parcel’s location
in reference to storm gutters and drains and soil grade.
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This lack of proportionality is further demonstrated by
the fact that the charge generates sufficient revenue to
allow the city to maintain a working capital reserve of
25 to 30 percent of the storm water utility’s total
expenses. Although maintaining a capital reserve is a
common practice amongst rate-based public utilities
that provides a degree of fiscal stability to utilities, see
73B CJS, Public Utilities, § 64; 64 Am Jur 2d, Public
Utilities, § 107, those reserves are funded by true user
fees closely calibrated to the actual use of the service or
a price paid for a commodity. The management charge
at issue in these cases in not such a fee. For these
reasons, the actual use of the storm water sewer system
by each parcel is not accounted for with the requisite
level of precision necessary to support a conclusion that
the charge is proportionate to the costs of the services
provided.
Finally, our conclusion that the city’s management
charge is a tax is bolstered by the fact that Ordinance
2011.02, like Lansing Ordinance 925, is effectively
compulsory. Although Ordinance 2011.02 allows prop-
erty owners to receive credits against the management
charge for actions taken to reduce runoff from their
respective properties, it does not guarantee all property
owners will receive a 100 percent credit. Indeed, if the
ordinance realistically allowed for all property owners
to receive a 100 percent credit, the credit system would
undermine the central purpose of the ordinance, which
is to generate dedicated funding to maintain and oper-
ate the current storm water management system. The
city would be left with a storm water sewer system to
operate and maintain and no dedicated revenue source
to fund street sweeping, catch-basin cleaning, and leaf
pickup, among other activities necessary to the city’s
stewardship of the system. More importantly, however,
this system of credits effectively mandates that prop-
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erty owners pay the charge assessed or spend their own
funds on improvements to their respective properties,
as specified by the ordinance and the city, in order to
receive the benefit of any credits. In other words,
property owners have no means by which to escape the
financial demands of the ordinance. Additionally, the
ordinance authorizes the administrator of the storm
water utility to discontinue water service to any prop-
erty owner delinquent in the payment of the fee, as well
as to engage in various civil remedies, including the
imposition of a lien and the filing of a civil action, to
collect payment of past-due charges. All of these circum-
stances demonstrate an absence of volition. This lack of
volition lends further support for our conclusion that
the management charge is a tax. Bolt, 459 Mich at 168.
III
We enter a declaratory judgment in favor of plain-
tiffs. The city’s storm water system management
charge is a tax imposed in violation of § 31 of the
Headlee Amendment. The city shall cease collecting the
charge and shall reimburse only plaintiffs for any
charges paid to date. Bolt v City of Lansing (On Re-
mand), 238 Mich App 37, 51-60; 604 NW2d 745 (1999).
Plaintiffs may tax their costs, including a reasonable
attorney fee. Const 1963, art 9, § 32; Adair v Michigan,
486 Mich 468, 494; 785 NW2d 119 (2010).
M
URPHY
, C.J., and H
OEKSTRA
and O
WENS
, JJ., con-
curred.
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GORMAN v AMERICAN HONDA MOTOR CO, INC
Docket No. 303005. Submitted June 11, 2013, at Detroit. Decided August 6,
2013, at 9:00 a.m.
Stacey W. Gorman brought an action against American Honda Motor
Co., Inc., and DMR Limited, alleging that a car she had purchased
from DMR’s Acura dealership had various defects that should have
been covered under warranty. The court, Martha D. Anderson, J.,
granted defendants’ motion for summary disposition of all plain-
tiff’s claims under MCR 2.116(C)(8) and (C)(10), and also denied
plaintiff’s motion for reconsideration. Plaintiff appealed.
The Court of Appeals held:
1. The trial court did not err by granting summary disposition
under MCR 2.116(C)(10) with respect to plaintiff’s claim that
defendants had failed to honor an express warranty. The evidence
showed that defects brought to defendants’ attention during the
warranty period were repaired within a reasonable time and that
the vehicle was returned to service without any further complaints
from plaintiff. Plaintiff’s arguments to the contrary were based on
speculation and inadmissible evidence.
2. The trial court correctly granted defendants summary dis-
position under MCR 2.116(C)(10) of plaintiff’s claim regarding
breach of the implied warranty of merchantability because plain-
tiff failed to produce evidence that a defect existing during the
warranty period went unrepaired for an unreasonable period of
time.
3. The trial court did not err by ruling that plaintiff failed to
notify defendants within a reasonable time of her breach of
warranty claims. Rather than providing notice, the history of
repairs to plaintiff’s vehicle actually indicated that defendants
honored the warranty that plaintiff was provided.
4. Plaintiff’s unspecified allegation of error regarding the
Magnuson-Moss Warranty Act, 15 USC 2301 et seq., was unsup-
ported by any argument on appeal and was therefore deemed
abandoned.
5. The trial court properly granted summary disposition of the
claim plaintiff brought under the Michigan Consumer Protection
G
ORMAN V
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Act, MCL 445.901 et seq., because that claim was based on the
breach-of-warranty claims that were properly dismissed.
6. The trial court correctly granted defendants summary dis-
position under MCR 2.116(C)(8) of plaintiff’s claim that defen-
dants breached their obligation of good faith because that claim
did not constitute an independent cause of action.
Affirmed.
A
CTIONS —
C
ONTRACTS —
W
ARRANTIES —
U
NIFORM
C
OMMERCIAL
C
ODE —
O
BLIGA-
TION OF
G
OOD
F
AITH
.
Michigan law does not recognize an independent cause of action for
a breach of the obligation of good faith with regard to performance
and enforcement of contracts and duties within the Uniform
Commercial Code, MCL 440.1101 et seq. (former MCL 440.1203;
MCL 440.1304; 2012 PA 86).
The Liblang Law Firm, PC (by Dani K. Liblang), for
plaintiff.
Driggers, Schultz & Herbst, PC (by James J. Ma-
jernik), for defendant.
Before: J
ANSEN
,P.J., and C
AVANAGH
and M
ARKEY
,JJ.
M
ARKEY
, J. Plaintiff brought an action asserting
breach of warranty and other claims against defen-
dants, alleging that a 2007 Acura MDX she purchased
from defendant Acura of Troy was defective. The trial
court granted defendants’ motion for summary disposi-
tion under MCR 2.116(C)(8) and (C)(10) and denied
plaintiff’s motion for reconsideration. Plaintiff appeals
by right. We affirm.
Plaintiff purchased a new 2007 Acura MDX from
defendant Acura of Troy on November 17, 2006. Plain-
tiff alleges that the dealer and defendant American
Honda Motor Co., Inc. (Honda), provided warranties
covering the vehicle “bumper to bumper” for 4 years or
50,000 miles, whichever came first. Defendants’ war-
ranty also extended to all parts installed by an Acura
114 302 M
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dealer for one year or 12,000 miles, whichever came
first. Plaintiff alleges that the primary defect in the
vehicle, as demonstrated by its repair history, is the
“active damper system” (ADS), which controls the
struts and suspension system and gives the vehicle its
smooth ride.
Plaintiff testified at her deposition that her Acura
MDX had never broken down and that she had never
contacted defendant Acura of Troy to request they take
the vehicle back and reimburse her purchase price.
Plaintiff also admitted that Acura of Troy had never
improperly serviced her MDX.
1
She also testified that
the SRS (air bag) message light would turn on and off.
Plaintiff took the vehicle to Suburban Acura on April 1,
2010, where a faulty driver’s seat sensor was found.
Plaintiff testified that the air bag light’s illuminating is
what finally motivated her to file this lawsuit.
I. TRIAL COURT RULINGS UNDER MCR 2.116(C)(10)
A. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision on
a motion for summary disposition. West v Gen Motors
Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). Under
MCR 2.116(C)(10), the motion tests the factual ad-
equacy of a complaint on the basis of the entire record,
including affidavits, depositions, admissions, or other
documentary evidence. Corley v Detroit Bd of Ed, 470
Mich 274, 278; 681 NW2d 342 (2004). The trial court in
deciding the motion must view the substantively admis-
sible evidence submitted up to the time of the motion in
a light most favorable to the party opposing the motion.
Maiden v Rozwood, 461 Mich 109, 120-121; 597 NW2d
1
All repairs on the vehicle at issue were made by a nonselling dealer,
Suburban Acura.
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817 (1999). “Summary disposition is appropriate...if
there is no genuine issue regarding any material fact
and the moving party is entitled to judgment as a
matter of law. A genuine issue of material fact exists
when the record, giving the benefit of reasonable doubt
to the opposing party, leaves open an issue upon which
reasonable minds might differ.” West, 469 Mich at 183.
Questions of law, including statutory interpretation,
are reviewed de novo on appeal. Gen Motors Corp v
Dep’t of Treasury, 290 Mich App 355, 369; 803 NW2d
698 (2010).
B. PLAINTIFF’S EXPRESS WARRANTY CLAIMS
Plaintiff first argues that the trial court erred by
misconstruing what constitutes a breach of warranty.
Specifically, plaintiff contends that while attempts were
made to repair the vehicle’s problems within the war-
ranty period, the attempts were unsuccessful. Thus,
plaintiff argues, the warranty failed its essential pur-
pose. See King v Taylor Chrysler-Plymouth, Inc, 184
Mich App 204, 213; 457 NW2d 42 (1990). Plaintiff
contends that a material question of fact exists regard-
ing whether the cause of the vehicle’s problems after
the warranty expired were the result of a defect that
existed during the warranty period that went unre-
paired. Defendant Honda argues that it honored the
manufacturer’s obligations under the written warranty
for all issues covered during the written warranty
period. Thus, defendants contend that the trial court
properly ruled: “There is simply no evidence of any
breach [of warranty] on the part of either defendant.”
Defendants also note that plaintiff relies on an un-
sworn, unsigned affidavit of an expert, Anthony Zolin-
ski, which cannot be considered on a motion for sum-
mary disposition.
116 302 M
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We conclude that the trial court did not err by
granting defendants summary disposition of plaintiff’s
express warranty claim on the basis that there was no
evidence that defendants failed to honor it. The vehi-
cle’s repair history and putative expert testimony are
insufficient to create a question of fact on plaintiff’s
express warranty claim. Plaintiff bore the burden of
establishing that defendants breached the written lim-
ited warranty, i.e., that during the period of the war-
ranty defendants were notified of a defect that they
failed to repair. See MCL 440.2607(4); American
Bumper & Mfg Co v TransTechnology Corp, 252 Mich
App 340, 345; 652 NW2d 252 (2002); see also Computer
Network, Inc v AM Gen Corp, 265 Mich App 309, 317;
696 NW2d 49 (2005). Plaintiff does not argue, or
identify evidence indicating, that the vehicle was out of
service for an unreasonable period of time during the
performance of warranty service. Therefore, this case is
distinguished from cases like Pack v Damon Corp, 434
F3d 810 (CA 6, 2006) and Kelynack v Yamaha Motor
Corp, 152 Mich App 105; 394 NW2d 17 (1986), in which
vehicles were out of service for extended periods of time
during repair efforts.
In this case, the undisputed evidence shows that
defects brought to defendants’ attention during the
warranty period were repaired within a reasonable time
and that the vehicle was returned to service without
any further complaints from plaintiff. The present case
is controlled by Computer Network, Inc, 265 Mich App
309, in which every time the plaintiff presented the
vehicle to the dealer for service, repairs were made and
there was “no evidence that the time allotted for the
presented repairs was unreasonable under the particu-
lar circumstances.” Id. at 315. Further, “the vehicle was
always repaired, returned, accepted, and used. Because
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there was no question of material fact, summary dispo-
sition under MCR 2.116(C)(10) was appropriate.” Id.
Plaintiff’s arguments to the contrary are based on
speculation and inadmissible evidence. First, plaintiff
relies on the vehicle’s repair history after the warranty
period expired in February 2009. In June and July 2009,
when the vehicle had been driven more than 60,000
miles, it was serviced because the ADS message light
illuminated. Suburban Acura found stored codes 6-2
and 7-2 caused by an open circuit in the left strut.
Defendant Honda apparently agreed to replace the left
front strut as a matter of good will, with plaintiff paying
$100 toward the repair. On July 28, 2009, when the
vehicle had been driven 62,357 miles, plaintiff com-
plained that it was riding rough. Suburban Acura found
that the vehicle’s upper sway bar connection was loose
and tightened it to within specifications. On January 8,
2010, with 72,576 miles on the odometer, plaintiff
presented the vehicle to Suburban Acura because vari-
ous dash warning lights, including the ADS light, were
illuminating. Problems relating to the exhaust con-
verter were found and repaired. Suburban Acura also
found an unspecified stored code regarding the ADS
system, cleared it, and it did not reset. On February 12,
2010, after the vehicle had been driven 74,171 miles,
the ADS message light illuminated. Suburban Acura
found a stored code of 7-9 and traced the problem to the
need to replace the right front and right rear shock
coils, which was done.
Plaintiff’s reliance on the vehicle’s postwarranty
repair history is misplaced because there is no evidence
of a causal link between them and an unrepaired defect
that plaintiff brought to defendants’ attention during
the warranty period. In a breach of contract case, the
plaintiff must establish a causal link between the as-
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serted breach of contract and the claimed damages. See
Miller-Davis Co v Ahrens Constr, Inc (On Remand), 296
Mich App 56, 71-72; 817 NW2d 609 (2012). In this case,
there is no evidence the same repairs were made during
and after the warranty period, and if they were the
same, there was no evidence that the postwarranty
repairs were not normal maintenance items as opposed
to an unrepaired defect, or that the postwarranty
repairs were not necessitated by poor workmanship by
nonparty Suburban Acura, which performed all the
warranty repairs. “ ‘There may be 2 or more plausible
explanations as to how an event happened or what
produced it; yet, if the evidence is without selective
application to any 1 of them, they remain conjectures
only.’ ” Kaminski v Grand TrunkWRCo, 347 Mich
417, 422; 79 NW2d 899 (1956) (citation omitted). “To be
adequate, a plaintiff’s circumstantial proof must facili-
tate reasonable inferences of causation, not mere specu-
lation.” Skinner v Square D Co, 445 Mich 153, 164; 516
NW2d 475 (1994). Simply put, the postwarranty repair
history creates only speculation and conjecture that
defects disclosed to defendants during the warranty
period went unrepaired; this is insufficient to create an
issue of material fact to survive a motion for summary
disposition. MEEMIC Ins Co v DTE Energy Co, 292
Mich App 278, 282; 807 NW2d 407 (2011).
Neither defendants’ expert’s report nor the unsigned
affidavit of plaintiff’s expert assist plaintiff in creating a
material question of fact on her breach-of-warranty
claim. The report of defendants’ expert provided evi-
dence only of the condition of plaintiff’s vehicle when he
inspected it on September 14, 2010, with 85,645 miles
on the odometer. Defendant’s expert was not deposed
and provided no evidence of a link between the condi-
tion of the vehicle when he inspected it and an alleged
defect that went unrepaired during the warranty pe-
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riod. The report of defendant’s expert is no more help to
plaintiff in creating an issue of material fact on her
claim of breach of warranty than the vehicle’s postwar-
ranty repair history.
With respect to the putative affidavit of plaintiff’s
expert, it was unsworn and unsigned when submitted to
the trial court for consideration at the hearing on
defendants’ motion for summary disposition. Defen-
dants correctly argue that an unsworn, unsigned affi-
davit may not be considered by the trial court on a
motion for summary disposition. See Liparoto Constr,
Inc v Gen Shale Brick, Inc, 284 Mich App 25, 33; 772
NW2d 801 (2009) (“unsworn statements...arenotsuf-
ficient to create a genuine issue of material fact to oppose
summary disposition under MCR 2.116(C)(10)”); Pack,
434 F3d at 815. Furthermore, appellate review of the trial
court’s decision is limited to the evidence that had been
presented at the time the motion was decided. Innovative
Adult Foster Care, Inc v Ragin, 285 Mich App 466, 476;
776 NW2d 398 (2009).
Even if the unsigned affidavit of plaintiff’s expert is
considered, it provides evidence only of the condition of
the vehicle at the time the expert inspected it on
October 21, 2010. The unsworn statement of defen-
dant’s expert provides no evidence of a causal link
between the condition of the vehicle when he inspected
it and an unrepaired defect that plaintiff brought to
defendants’ attention during the warranty period that
went unrepaired.
In sum, plaintiff produced evidence that created only
speculation and conjecture that defects disclosed to
defendants during the warranty period went unre-
paired; therefore, the trial court correctly granted de-
fendants summary disposition on plaintiff’s express
warranty claim.
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C. PLAINTIFF’S IMPLIED WARRANTY CLAIMS
In general, a warranty of merchantability is implied
when the seller is a merchant of the goods sold and
provides that the goods will be of average quality within
the industry. MCL 440.2314; Guaranteed Constr Co v
Gold Bond Prod, 153 Mich App 385, 391; 395 NW2d 332
(1986). “Merchantable is not a synonym for perfect[.]”
Id. at 392-393. We conclude that the trial court correctly
granted defendants summary disposition as to plain-
tiff’s claim regarding breach of the implied warranty of
merchantability.
Pertinent statutes regarding the implied warranty of
merchantability include MCL 440.2314(1), which pro-
vides that “a warranty that the goods shall be mer-
chantable is implied in a contract for their sale if the
seller is a merchant with respect to goods of that kind.”
MCL 440.2314(2)(c) provides, “[g]oods to be merchant-
able must be at least such as...arefitfortheordinary
purposes for which such goods are used[.]” If an express
warranty is provided, it controls over the implied war-
ranty of merchantability but not an implied warranty of
fitness for a particular purpose.
2
MCL 440.2317(c). Also,
15 USC 2308(a) generally precludes a “supplier” from
disclaiming or modifying an implied warranty if the
supplier provides any written warranty or enters into a
service contract with the consumer. An exception to the
general rule is provided in 15 USC 2308(b), which states
that “implied warranties may be limited in duration to
2
Plaintiff does not assert a claim for breach of an implied warranty of
fitness for a particular purpose. See MCL 440.2315 (“Where the seller at
the time of contracting has reason to know any particular purpose for
which the goods are required and that the buyer is relying on the seller’s
skill or judgment to select or furnish suitable goods, there is unless
excluded or modified under the next section an implied warranty that the
goods shall be fit for such purpose.”).
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the duration of a written warranty of reasonable dura-
tion, if such limitation is conscionable and is set forth in
clear and unmistakable language and prominently dis-
played on the face of the warranty.” Here, it is undis-
puted that defendants limited the implied warranty of
merchantability to the duration of the express war-
ranty.
“To establish a prima facie case of breach of implied
warranty, a plaintiff must show that goods were defec-
tive when they left the possession of the manufacturer
or seller[.]” Guaranteed Constr Co, 153 Mich App at
392. In this case, as discussed in part I(B), plaintiff
failed to produce evidence that a defect existing during
the warranty period went unrepaired for an unreason-
able period of time. Plaintiff’s circular argument that
the limits on the duration of the implied warranty failed
because defendants breached the express warranty is
without merit. Plaintiff did not create a question of fact
that the express warranty was breached. And plaintiff
failed to produce any evidence that the vehicle was not
“fit for the ordinary purposes for which such goods are
used.” MCL 440.2314(2)(c). Therefore, the trial court
properly granted defendants summary disposition as to
plaintiff’s claim for breach of the implied warranty of
merchantability.
D. REASONABLE NOTICE OF BREACH
Plaintiff argues that the trial court erred as a matter
of law and fact in ruling that plaintiff failed to notify
defendants within a reasonable time of her breach-of-
warranty claims. Specifically, plaintiff argues that MCL
440.2607 does not apply to breach-of-warranty claims,
but that if it does, she presented sufficient evidence to
create a question of fact that defendant Honda was on
notice that, in the words of the official comment to the
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section of the Uniform Commercial Code from which
MCL 440.2607 was derived, the transaction “is still
troublesome and must be watched.” UCC 2-607, Official
Comment 4. Defendants argue that the statute provides
no exception for breach-of-warranty claims and note
that while the trial court stated that the “failure to
notify the alleged breaching party within a reasonable
period defeats Plaintiff’s breach claims,” it also ruled
that “there is simply no evidence of any breach on the
part of either defendant.” Thus, defendant argues that
plaintiff’s failure to give defendants reasonable notice
of her breach-of-warranty claims provided an alterna-
tive basis for the trial court to grant defendants sum-
mary disposition.
We conclude that the trial court did not err by ruling
that plaintiff failed to give defendants reasonable notice
of her breach-of-warranty claims and that lack of notice
provides an alternative basis that bars her breach-of-
warranty claims.
MCL 440.2607(3)(a) provides: “Where a tender has
been accepted...thebuyer must within a reasonable
time after he discovers or should have discovered any
breach notify the seller of breach or be barred from any
remedy[.]” In this case, plaintiff never provided either
defendant notice of her claim that they were in breach
of warranty until she filed the instant lawsuit, 16
months and 30,000 miles after her vehicle’s warranty
expired. By any standard, the notice of alleged breach of
warranty that plaintiff provided was not reasonable;
the plain language of the statute bars plaintiff “from
any remedy.” Id. (emphasis added). We find that plain-
tiff’s arguments to the contrary are without merit.
Plaintiff first argues that Michigan law does not
require presuit notice of a breach-of-warranty claim,
citing King, 184 Mich App at 211. That case, however,
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did not concern whether the plaintiff had given sellers
reasonable notice of an alleged breach of warranty as
required by MCL 440.2607(3) but rather concerned a
buyer’s revocation of acceptance under MCL
440.2608(2), which requires that revocation of accep-
tance “must occur within a reasonable time after the
buyer discovers or should have discovered the ground
for it and before any substantial change in condition of
the goods which is not caused by their own defects.” In
King, the plaintiff drove the vehicle 6,000 to 7,000 miles
over nine months before storing it because of numerous
problems; the vehicle had a 12,000-mile or one-year
“full warranty.” King, 184 Mich App at 208-209. Plain-
tiff served the defendant with her complaint one month
after storing the vehicle. Id. at 211. The Court con-
cluded that the plaintiff’s filing of her complaint
“placed defendant on notice of [the] plaintiff’s revoca-
tion within a reasonable time from when she discovered
that the nonconformity substantially impaired the
value of the vehicle.” Id. Thus, King holds only that, on
its facts, the plaintiff had given the defendant reason-
able notice of revocation of acceptance as required by
MCL 440.2608(2). King does not negate the require-
ment that a buyer give notice to a seller “within a
reasonable time after he discovers or should have
discovered any breach . . . or be barred from any rem-
edy.” MCL 440.2607(3)(a) (emphasis added).
Next, plaintiff attempts to distinguish American
Bumper because that case involved a commercial buyer
and a commercial seller. In American Bumper the
plaintiff brought claims of “breach of express warranty,
breach of implied warranties of fitness and merchant-
ability, express indemnification, and implied indemnifi-
cation,” and the defendant sought summary disposition
because the plaintiff had “failed to comply with the
notice provision of...MCL440.2607(3)(a), requiring a
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buyer to notify a seller of a breach of contract within a
reasonable time of discovering the breach, and that
plaintiff was barred from any remedy.” American
Bumper, 252 Mich App at 344. The Court discussed
comment 4 to UCC 2-607,
3
noting that some portions of
the comment led courts to apply a lenient standard
while other parts of the comment led courts to apply a
strict standard regarding whether a buyer gave a seller
reasonable notice of a breach. American Bumper, 252
Mich App at 345. The Court concluded that the notice in
that case was not adequate because the notice did not
satisfy the policies underlying the notice requirement
4
3
Comment 4 to UCC 2-607 reads as follows:
The time of notification is to be determined by applying
commercial standards to a merchant buyer. “A reasonable time”
for notification from a retail consumer is to be judged by different
standards so that in his case it will be extended, for the rule of
requiring notification is designed to defeat commercial bad faith,
not to deprive a good faith consumer of his remedy.
The content of the notification need merely be sufficient to let
the seller know that the transaction is still troublesome and must
be watched. There is no reason to require that the notification
which saves the buyer’s rights under this section must include a
clear statement of all the objections that will be relied on by the
buyer, as under the section covering statements of defects upon
rejection (Section 2-605). Nor is there reason for requiring the
notification to be a claim for damages or of any threatened
litigation or other resort to a remedy. The notification which saves
the buyer’s rights under this Article need only be such as informs
the seller that the transaction is claimed to involve a breach, and
thus opens the way for normal settlement through negotiation.
4
The stated policy reasons for the notice requirement were
(1) to prevent surprise and allow the seller the opportunity to
make recommendations how to cure the nonconformance, (2) to
allow the seller the fair opportunity to investigate and prepare for
litigation, (3) to open the way for settlement of claims through
negotiation, and (4) to protect the seller from stale claims and
provide certainty in contractual arrangements. [American
Bumper, 252 Mich App at 346-347.]
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and because the plaintiff’s conduct did not satisfy the
UCC’s standard of commercial good faith. Id. The
opinion does not suggest that MCL 440.2607(3)(a) ap-
plies only in transactions between commercial buyers
and commercial sellers. Nothing in MCL 440.2607 ex-
cludes its application to consumer retail sales transac-
tions. See, e.g., Head, 234 Mich App at 105 (applying
MCL 440.2607(1) to a retail transaction and holding
that once goods are accepted the buyer must pay for
them and may only revoke acceptance under MCL
440.2608).
Plaintiff next argues that, relying on comment 4 and
caselaw, notice is sufficient to create a question of fact if
it places an authorized agent of a manufacturer on
notice that the “transaction is still troublesome and
must be watched.” Plaintiff’s reliance on the last
quoted part of comment 4 is misplaced. See K & M Joint
Venture v Smith, Int’l, Inc, 669 F2d 1106, 1111-1113
(CA 6, 1982) (rejecting the district court’s reliance on
this part of comment 4 and holding that the critical
question under UCC 2-607 is whether the seller has
been informed that the buyer considered the seller in
breach). It is clear from reading comment 4 in its
entirety that the seller must be given actual notice that
the buyer believes that the seller is in breach. The
bottom line of comment 4 provides: “The notification
which saves the buyer’s rights under this Article need
only be such as informs the seller that the transaction is
claimed to involve a breach, and thus opens the way for
normal settlement through negotiation.”
Furthermore, plaintiff’s position is not assisted by
the unremarkable proposition that notice to an autho-
rized agent may constitute notice to the principal. See
Halprin v Ford Motor Co, 107 NC App 423, 426; 420
SE2d 686 (1992) (observing that most jurisdictions have
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held that notice under UCC 2-607(3)(a) is sufficient if
given to immediate sellers); Malkamaki v Sea Ray
Boats, 411 F Supp 2d 737, 744-745 (ND Ohio, 2005)
(ruling that the plaintiff presented sufficient evidence
to create a question of fact regarding notice to the
defendant through its authorized dealer or repair facil-
ity). In this case, plaintiff provided neither defendant
Honda nor defendant Acura of Troy with any notice
that she believed they were in breach until well after
the vehicle’s warranty had expired, and then only by
filing her lawsuit. The history of repairs to plaintiff’s
vehicle does not provide notice that she believed defen-
dants were in breach. To the contrary, the repair history
indicates that defendants honored the warranty that
plaintiff was provided: repairs were made, and the
vehicle was returned to service without objection. De-
spite dicta regarding a new car buyer, Standard Alli-
ance Indus, Inc v Black Clawson Co, 587 F2d 813, 825
(CA 6, 1978), which involved belated claims that repairs
were inadequate, states the correct rule regarding no-
tice:
Section 2-607 expressly requires notice of “any” breach.
Comment 4 says that notice “need only be such as informs
the seller that the transaction is claimed to involve a
breach.” The express language of the statute and the
official comment mandate notice regardless whether either
or both parties had actual knowledge of breach. [Id.]
See also K & M Joint Venture, 669 F2d at 1112-1113.
Here, plaintiff provided defendants no notice at all
that she believed defendants were in breach. Accord-
ingly, plaintiff is “barred from any remedy.” MCL
440.2607(3)(a). Therefore, in addition to correctly rul-
ing that plaintiff failed to create a question of fact about
whether defendants breached their warranty, the trial
court also correctly ruled that plaintiff’s failure to
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notify defendants of their alleged breach within a
reasonable period defeats plaintiff’s breach claims.
E. PLAINTIFF’S MICHIGAN CONSUMER PROTECTION ACT CLAIM
We first note that although the question plaintiff
presents for this issue includes an unspecified error by
the trial court regarding the Magnuson-Moss Warranty
Act, 15 USC 2301, et seq., plaintiff presents no argu-
ment at all on appeal in that regard. “It is axiomatic
that where a party fails to brief the merits of an
allegation of error, the issue is deemed abandoned by
this Court.” Prince v MacDonald, 237 Mich App 186,
197; 602 NW2d 834 (1999).
The Michigan Consumer Protection Act (MCPA),
MCL 445.901 et seq., prohibits “unfair, unconscionable,
or deceptive methods, acts, or practices in the conduct
of trade or commerce[.]” MCL 445.903(1). The act
defines “trade or commerce” as “the conduct of a
business providing goods, property, or service primarily
for personal, family, or household purposes and includes
the advertising, solicitation, offering for sale or rent,
sale, lease, or distribution of a service or property,
tangible or intangible, real, personal, or mixed, or any
other article, or a business opportunity.” MCL
445.902(1)(g).
In this case, plaintiff alleged regarding her MCPA
claim that defendants generally failed to inform her
regarding purported defects in the vehicle that she
purchased or failed to comply with express and implied
warranties to repair defects. Responding to defendants’
motion for summary disposition, plaintiff asserted re-
garding her MCPA claim that defendants failed to
provide promised benefits, including benefits promised
by operation of law, MCL 445.903(y), represented goods
had qualities they do not have, MCL 445.903(c), and
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omitted or failed to reveal material facts, MCL
445.903(s). Citing Mikos v Chrysler Corp, 158 Mich App
781, 784-785; 404 NW2d 783 (1987), plaintiff argued
that defendants “represented that it provided... a
warranty it is now refusing to honor and failed to honor
throughout the warranty period.” Plaintiff also argued
that her claim for “frustrated expectations” survives
without the need to show actual damages, citing May-
hallvAHPondCo,Inc, 129 Mich App 178, 185-186;
341 NW2d 268 (1983), and that her vehicle had a defect
that defendants cannot repair. At the hearing on the
motion for summary disposition, plaintiff’s counsel
conceded that plaintiff’s MCPA claim was based on “a
failure of the promised benefit,” i.e., the warranty that
they would repair any defects.
Plaintiff first argues that the trial court erred by
ruling (1) that proof of a breach of warranty is a
necessary element of her MCPA claim and (2) that
plaintiff did not create a question of fact regarding
whether defendants breached their warranties. This
argument fails because, as discussed already, the trial
court correctly dismissed plaintiff’s breach-of-warranty
claims. While proof a breach of warranty will not always
be necessary to establish a claim under the MCPA,
plaintiff in this case based her MCPA claim on defen-
dants’ alleged breach of warranty. It follows that the
trial court correctly granted defendants summary dis-
position on plaintiff’s breach-of-warranty-based MCPA
claim.
Next, relying on Gadula v Gen Motors Corp, unpub-
lished opinion of the Court of Appeals, issued January 5,
2001 (Docket No. 213853), plaintiff argues that she can
establish her MCPA claim without the necessity of show-
ing a breach of warranty by proof that the vehicle did not
meet her reasonable expectations. Plaintiff’s reliance on
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Gadula is misplaced. First, Gadula is unpublished
and therefore is not binding precedent. MCR
7.215(C)(1). Second, unlike the present case, the
plaintiff in Gadula did not fail to prove a breach of
warranty; she failed to prove that she had suffered
any damages as a result of the breach of warranty,
and the trial court dismissed her warranty claims on
this basis. Gadula, unpub op at 1. The Gadula Court
affirmed on the same basis. Id. at 2-3. The plaintiff’s
breach-of-warranty claim under the MCPA survived,
however, because nominal damages may be awarded
under the MCPA without proof of actual damages.
MCL 445.911(2).
5
Here, plaintiff failed to present evi-
dence to establish her breach-of-warranty claims, which
formed the basis of her MCPA claims. Gadula is inap-
posite. The trial court did not err by dismissing plain-
tiff’s MCPA claims.
Plaintiff also argues, relying on Mayhall, that the
frustration of her reasonable expectations alone sup-
ports her MCPA claim. The plaintiff in Mayhall pur-
chased a diamond that was “guaranteed perfect” but it,
in fact, was not. The Court held that the plaintiff could
maintain an action for violation of the MCPA based on
the frustration of the plaintiff’s reasonable expectations
without the necessity of proving actual economic dam-
ages. Mayhall, 129 Mich App at 180-181, 186. Like the
plaintiff in Gadula, the plaintiff in Mayhall established
a breach of promise but could not establish monetary
damages. On this basis, Mayhall, like Gadula, is distin-
guishable from the present case, in which plaintiff
failed to produce evidence raising a question of fact
about whether defendants breached their promised
5
MCL 445.911(2) provides: “[A] person who suffers loss as a result of
a violation of this act may bring an action to recover actual damages or
$250.00, whichever is greater, together with reasonable attorneys’ fees.”
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warranty. Moreover, in this case, defendants’ express
promise was to repair defects during the period of the
warranty, and defendants’ implied promise was that the
vehicle was merchantable, which is not the same as a
promise that goods are perfect. See Computer Network,
265 Mich App at 317.
In sum, plaintiff’s complaint and argument below
were that her MCPA claims were based on defendants’
breach of warranty. Because plaintiff’s MCPA claim is
based on her breach-of-warranty claims—and the trial
court correctly granted defendants summary disposi-
tion on those claims—the trial court also correctly
granted defendants summary disposition on plaintiff’s
MCPA claim.
II. TRIAL COURT RULINGS UNDER MCR 2.116(C)(8)
A. STANDARD OF REVIEW
MCR 2.116(C)(8) permits a trial court to grant sum-
mary disposition when an opposing party has failed to
state a claim on which relief can be granted. Thus, a
motion under this rule tests the legal sufficiency of a
claim. Computer Network, 265 Mich App at 312. The
motion may not be supported or opposed with affida-
vits, admissions, or other documentary evidence, and
must be decided on the basis of the pleadings alone. Id.;
MCR 2.116(G)(2). The trial court reviewing the motion
must accept as true all factual allegations supporting
the claim, and any reasonable inferences or conclusions
that might be drawn from those facts. Detroit Int’l
Bridge Co v Commodities Export Co, 279 Mich App 662,
670; 760 NW2d 565 (2008). A motion for summary
disposition under MCR 2.116(C)(8) may be granted only
when a claim is so clearly unenforceable as a matter of
law that no factual development could possibly justify
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recovery. Attorney General v Merck Sharp & Dohme
Corp, 292 Mich App 1, 8; 807 NW2d 343 (2011).
B. PLAINTIFF’S CLAIM FOR BREACH OF THE OBLIGATION
OF GOOD FAITH
Plaintiff argues that a right under the UCC is en-
forceable by an action unless specifically excluded pur-
suant to MCL 440.1106(2).
6
Thus, plaintiff asserts she
may maintain an independent action for a breach of the
obligation of good faith that was provided for in MCL
440.1203 when she brought her claims: “Every contract
or duty within this act imposes an obligation of good
faith in its performance or enforcement.”
7
At the rel-
evant times, MCL 440.2103(b) defined “good faith” for
merchants as meaning “honesty in fact and the obser-
vance of reasonable commercial standards of fair deal-
ing in the trade.” Plaintiff argues that the trial court
erred in dismissing her claim for breach of the obliga-
tion of good faith by relying on Belle Isle Grill Corp v
Detroit, 256 Mich App 463; 666 NW2d 271 (2003), and
Ulrich v Fed Land Bank of St Paul, 192 Mich App 194,
196; 480 NW2d 910 (1991), because these cases address
common-law claims for breach of good faith. In sum,
plaintiff contends that the UCC imposes a duty on a
merchant to act in good faith and that the failure of a
merchant to comply with this duty imposed by law is
actionable. Plaintiff cites Gen Motors Corp v Dep’t of
Treasury, 466 Mich 231, 236; 644 NW2d 734 (2002),
KLT Industries, Inc v Eaton Corp, 505 F Supp 1072,
1078 (ED Mich, 1981), and Kovack v DaimlerChrysler
6
This provision was redesignated MCL 440.1305(2) effective July 1,
2013. See 2012 PA 86.
7
This statutory obligation now appears at MCL 440.1304, which is
identical but for the final phrase, which now reads “performance and
enforcement.” See 2012 PA 86 (emphasis added).
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Corp, unpublished opinion of the Court of Appeals,
issued May 11, 2006 (Docket No. 265761), in support of
her argument.
Defendants, of course, argue that the trial court
properly relied on Belle Isle Grill, 256 Mich App at 476,
and Ulrich, 192 Mich App at 197, each holding that
Michigan does not recognize a cause of action for breach
of an implied covenant of good faith and fair dealing, in
dismissing plaintiff’s claim pursuant to MCR
2.116(C)(8). Defendants assert the Court’s opinion in
General Motors Corp, 466 Mich at 236, which indicates
that a party may be sued and the obligation of good
faith argued to the jury, does not recognize a separate
cause of action for a breach of the duty of good faith.
Defendants further argue that while the obligation of
good faith was applied in a breach of contract cause of
action in KLT Industries, nothing in that decision
creates a separate cause of action for the breach of good
faith.
We conclude that the trial court correctly granted
defendants summary disposition under MCR
2.116(C)(8) because Michigan does not recognize, nor
does the UCC create, an independent cause of action for
a breach of the obligation of good faith it imposes. The
obligation of good faith is not an independent duty, but
rather a modifier that requires a subject to modify. It is
a principle by which contractual obligations or other
statutory duties are to be measured and judged. Thus,
while the obligation of good faith under the UCC may
affect the construction and application of UCC provi-
sions governing particular commercial transactions in
various situations, it has no life of its own that may be
enforced by an independent cause of action. Caselaw
and the UCC itself provide no basis to infer that the
obligation of good faith should be applied differently
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than the common-law implied covenant of good faith
and fair dealing, which the parties agree is not enforce-
able as an independent cause of action. See Belle Isle
Grill, 256 Mich App at 476; Ulrich, 192 Mich App at
197. A close examination of the cases on which plaintiff
relies confirms that the obligation of good faith has no
application apart from some other contractual obliga-
tion or statutory duty.
First, KLT Industries, 505 F Supp 1072, is not
precedentially binding and carries authority only to the
extent it is persuasive. Abela v Gen Motors Corp, 469
Mich 603, 606-607; 677 NW2d 325 (2004). While the
district court in KLT Industries discussed the UCC’s
obligation of good faith, it did so only in the context of
deciding the parties’ competing claims of breach of
contract. KLT Indus, 505 F Supp at 1078-1079. Specifi-
cally, the obligation of good faith required that the
defendant in that case give reasonable notice of the
termination of the contract. The case did not recognize
an independent action for breach of the obligation of
good faith.
Similarly, Kovack “is not precedentially binding un-
der the rule of stare decisis.” MCR 7.215(C)(1). As in
the present case, the plaintiff brought claims of breach
of express and implied warranty, a claim for violation of
the MCPA, a claim under the lemon law, MCL 257.1401
et seq., and a claim for breach of the duty of good faith.
The trial court granted the defendant summary dispo-
sition as to all claims, and this Court affirmed. Whether
the UCC creates an independent cause of action for the
breach of its obligation of good faith was not presented
to or decided by the Kovack Court. The questioned
presented was whether the trial court correctly dis-
missed this claim, and the Kovack Court held that the
answer to that question was yes. While the Court ruled
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on the basis of the undisputed facts, the Court’s holding
that the defendant was entitled to judgment as a matter
of law confirms that the obligation of good faith arises
only in relation to another contractual obligation or a
statutory duty. The Kovack Court held that “because no
genuine issue of material fact existed regarding
breaches of express or implied warranties, plaintiff’s
claim of breach of the duty of good faith also fails.”
Kovack, unpub op at 4. This statement supports the
conclusion that the obligation of good faith is not
independently actionable because without the claims
for breach of warranty, the good-faith claim failed.
The use-tax case that plaintiff cites, which held that
vehicle components and parts General Motors provided
to customers as part of GM’s goodwill adjustments
policy, Gen Motors Corp, 466 Mich at 233, likewise does
not hold that the UCC’s obligation of good faith creates
an independent cause of action if breached. Rather, the
Court held that GM’s goodwill policy was an extension
of GM’s written limited warranties, id. at 234, and was
“part of the consideration flowing to GM customers
when they purchase a GM vehicle that is taxed pursu-
ant to the [General Sales Tax Act, MCL 205.51 et seq.]
at retail sale.” Id. at 242-243. Consequently, when the
Court refers to the UCC’s obligation of good faith and
states that GM could be sued if GM did “not consider
complaints under the goodwill adjustment policy in
good faith,” id. at 240, the suit would be for breach of
contract in general, not an independent suit for breach
of the obligation of good faith.
Finally, the plain text of the UCC can be read in no
other way than that the obligation of good faith is
inextricably part of a contract or other statutory obli-
gation, not a freestanding obligation that may support
an independent cause of action. “Every contract or duty
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within this act imposes an obligation of good faith in its
performance or enforcement.” Former MCL 440.1203
(emphasis added).
8
Stated otherwise, there must be a
contract or statutory duty on which the obligation of
good faith is imposed. The UCC defines “good faith” in
the case of a merchant to mean “honesty in fact and the
observance of reasonable commercial standards of fair
dealing in the trade.” Former MCL 440.2103(1)(b); see
also MCL 440.4605(1)(f) (omitting “in the trade”).
9
The
official comment to the analogous section of the UCC
explains that the section states a basic principle “that in
commercial transactions good faith is required in the
performance and enforcement of all agreements or
duties.” Official Comment 1 to former UCC 1-203,
current 1-304. Thus, the focus of the obligation of good
faith is on the manner in which the agreement or other
duty is performed or enforced. Consequently, nothing in
the UCC supports the proposition that the obligation of
good faith may be enforced independently from a claim
for breach of contract or other statutory duty.
We affirm. Defendants, as prevailing parties, may tax
costs pursuant to MCR 7.219.
J
ANSEN
,P.J., and C
AVANAGH
, J., concurred with M
ARKEY
,
J.
8
The fact that the final “or” in this provision has been changed to
“and” does not alter our analysis. See MCL 440.1304.
9
The current version of Michigan’s UCC similarly defines “good faith.”
MCL 440.1201(2)(t) states: “ ‘Good faith’, except as otherwise provided in
article 5, means honesty in fact and the observance of reasonable
commercial standards of fair dealing.” Article 5, which relates to letters
of credit, defines “good faith” as meaning “honesty in fact in conduct or
transaction concerned.” MCL 440.5102(1)(g).
136 302 M
ICH
A
PP
113 [Aug
SILICH v RONGERS
Docket No. 305680. Submitted May 7, 2013, at Grand Rapids. Decided
August 8, 2013, at 9:00 a.m.
Rudy Silich brought an action in the St. Joseph Circuit Court against
John Rongers to partition a cottage they jointly owned. Rongers
obtained his share of the property from his father in 2007. Silich
obtained his share from his mother (Rongers’s sister) in 2007. The
court, Paul E. Stutesman, J., found that various expenses related
to the property had been shared equally beginning in 2000, but
Rongers had still done all the work of maintaining the property.
There was also an issue regarding the personal property in the
cottage. The court found that Rongers or his family exclusively
owned the vast majority of the personal property except for a few
pieces that Rongers stipulated belonged to Silich’s family. The
court ordered that the cottage be sold in lieu of partition, and
Silich purchased it at the subsequent auction. The court awarded
Silich attorney fees under MCR 3.403(C), limited to those involved
in organizing the partition sale and excluding fees incurred in
litigating the dispute regarding the distribution of sale proceeds
and the personal property. Because the invoices submitted by
Silich’s attorney did not differentiate his fees for those matters,
the court awarded attorney fees for twice the amount of time spent
by the partition commissioner, reasoning that Silich’s attorney had
needed more time than the commissioner to prepare his materials.
After the commissioner’s expenses, Silich’s attorney fees, and the
costs Silich incurred obtaining the partition were deducted from
the proceeds of the auction, the judgment awarded 75 percent of
the remaining proceeds to Rongers and 25 percent to Silich. The
court denied Silich’s request for additional attorney fees arising
from litigation of the partition and also rejected Rongers’s argu-
ment that some of Silich’s claims were frivolous. Silich appealed,
seeking an equal division of the partition proceeds and additional
attorney fees. Rongers cross-appealed, seeking attorney fees.
The Court of Appeals held:
1. It was improper for the trial court to grant Rongers more
than 50 percent of the proceeds from the sale of the property when
it was undisputed that Silich had paid his share of the expenses for
2013] S
ILICH V
R
ONGERS
137
all years that he was a coowner and Rongers’s maintenance
contributions were de minimis. Actions to partition land are
equitable in nature. MCR 3.403(D)(3) provides that two parties
who each own a 50 percent interest in property to be sold in lieu of
partitioning the property will each receive 50 percent of the
proceeds, but MCL 600.3336(2) provides that when partitioning
the premises or dividing among the parties the money received
from a sale of the premises, the court may take into consideration
the equities of the situation, such as the value of the use of the
premises by a party or the benefits that a party conferred on the
premises. In this case, the trial court found that Rongers had
conferred sufficient benefits on the premises to deserve 75 percent
of the proceeds from the sale. The trial court, however, should have
considered only benefits conferred on the premises after Silich
became coowner with Rongers. No caselaw supported the propo-
sition that in a partition action a subsequent owner may be held
liable, even in equity, for the debts of a prior owner. Nor was there
authority allowing the trial court to charge Silich with his parent’s
debts.
2. MCR 3.401(B) states that if the trial court determines that
the premises can be partitioned, MCR 3.402 governs further
proceedings. If the court determines that the premises cannot be
partitioned without undue prejudice to the owners, it may order
the premises sold in lieu of partition under MCR 3.403. The small
property at issue in this case could not have been partitioned. The
trial court therefore ordered it sold and properly proceeded under
MCR 3.403 instead of MCR 3.402. While Rongers argued that MCR
3.402 governed the time before court’s determination that the
property should be sold, the court rule itself states that it governs
only if the court determines that the premises can be partitioned.
Under MCR 3.403(C), the person conducting the sale must deduct
the costs and expenses of the proceeding, including the plaintiff’s
reasonable attorney fees as determined by the court, from the
proceeds of the sale and pay them to the plaintiff or the plaintiff’s
attorney. Silich argued that the term “proceeding” in MCR
3.403(C) means the entire case, including all related litigation.
That court rule, however, covers the expenses necessary to the sale
of the premises. Because a sale in lieu of partition requires a court
order, one of the parties must first bring an action, which benefits
all owners of the property by liquidating their interests in the
property. Therefore, the party who brought the action must be
compensated for bearing the necessary legal expenses. Extending
the definition of “proceeding” to cover all disputes that are
tangentially related to the sale of the property, however, would
overturn the American rule (which provides that fees are not
138 302 M
ICH
A
PP
137 [Aug
generally recoverable unless a statute, court rule, or common-law
exception provides otherwise) for no reason. MCR 3.403(C) autho-
rizes the award of fees only to cover the plaintiff’s expense in filing
the suit and arranging the partition sale.
3. The trial court did not clearly err when it calculated Silich’s
reasonable attorney fees related to the sale of the premises. A
review of the commissioner’s reports revealed no work performed
that was unnecessary to the sale. Therefore, it was not unreason-
able for the trial court to base its calculation on the commission-
er’s invoices. Although the calculation of the number of hours
spent by Silich’s attorney was imprecise, the trial court explained
that the invoices submitted by Silich’s attorney did not sufficiently
differentiate between fees that were recoverable and those that
were not. This was a failure of the proofs, and better evidence
would have allowed more precision by the trial court, but given
what it had to work with, the trial court’s conclusions were
reasonable.
4. The trial court did not err when it denied Rongers’s request
for attorney fees. MCL 600.2591 allows an award of fees against a
party who files a frivolous action. Under MCL 600.2591(3)(a), a
claim is frivolous if (1) the party’s primary purpose in initiating
the action was to harass, embarrass, or injure the prevailing party,
(2) the party had no reasonable basis to believe that the facts
underlying that party’s legal position were in fact true, or (3) the
party’s legal position was devoid of arguable merit. The trial court
did not clearly err by finding that Silich had a reasonable basis to
believe the facts underlying his position and that his legal position
was not devoid of arguable merit on the basis of those facts.
Affirmed in part, reversed in part, and remanded.
1. R
EAL
P
ROPERTY —
P
ARTITION —
S
ALE OF
P
ROPERTY IN
L
IEU OF
P
ARTITION —
D
IVISION OF
P
ROCEEDS —
B
ENEFITS
C
ONFERRED ON
P
ROPERTY BY
C
OOWNER
.
Actions to partition land are equitable in nature; MCR 3.403(D)(3)
provides that two parties who each own a 50 percent interest in
property to be sold in lieu of partitioning the property will each
receive 50 percent of the proceeds; MCL 600.3336(2) further
provides that when partitioning the premises or dividing among
the parties the money received from a sale of the premises, the
trial court may take into consideration the equities of the situa-
tion, such as the value of the use of the premises by a party or the
benefits that a party conferred on the premises, but the court may
properly consider only benefits conferred on the premises after the
2013] S
ILICH V
R
ONGERS
139
parties became coowners and a subsequent owner may not be held
liable, even in equity, for the debts of a prior owner.
2. R
EAL
P
ROPERTY —
P
ARTITION —
S
ALE OF
P
ROPERTY IN
L
IEU OF
P
ARTITION —
A
TTORNEY
F
EES
.
MCR 3.403(C) provides that the person conducting a sale of property
in lieu of partitioning the property must deduct the costs and
expenses of the proceeding, including the plaintiff’s reasonable
attorney fees as determined by the court, from the proceeds of the
sale and pay them to the plaintiff or the plaintiff’s attorney; MCR
3.403(C) authorizes the award of fees only to cover the plaintiff’s
expense in filing the suit and arranging the partition sale and does
not cover all disputes that are tangentially related to the sale of the
property.
Property Law Solutions, PLC (by Philip J. Sheridan)
for plaintiff.
Robert R. Kopen for defendant.
Before: S
ERVITTO
,P.J., and W
HITBECK
and S
HAPIRO
,JJ.
P
ER
C
URIAM
. This case involves the partition of a
cottage property on the St. Joseph River jointly owned
by the parties. The trial court ordered that the property
be sold, and plaintiff purchased the property at the
subsequent auction. The trial court awarded 75 percent
of the proceeds from the auction to defendant, after
deducting the partition commissioner’s expenses and
$8,359.20 for plaintiff’s attorney fees and costs “in-
curred obtaining the partition of the premises.” The
court denied plaintiff’s request for additional attorney
fees arising from litigation of the partition, and also
rejected defendant’s argument that some of plaintiff’s
claims were frivolous. Plaintiff filed this appeal, seeking
to divide the partition proceeds equally and also seeking
his remaining attorney fees. Defendant filed a cross-
appeal, also primarily seeking attorney fees. We hold
that the trial court erred by granting defendant more
140 302 M
ICH
A
PP
137 [Aug
than half of the proceeds because it was undisputed that
plaintiff paid his share of all expenses after he became
the coowner. We affirm the trial court’s rulings regard-
ing attorney fees.
I. FACTS
The property was originally purchased by defen-
dant’s father, Michael Rongers, along with Rudolph
Silich, Jr. (Rudy Jr.), plaintiff’s father. Rudy Jr. was
Michael’s son-in-law, married to Michael’s daughter,
Carole. Michael and Rudy Jr. added their wives’ names
to the property deed, so that Michael, his wife, his
daughter (Carole), and Carole’s husband (Rudy Jr.)
each owned a share. Michael’s wife and Rudy Jr. passed
away, leaving Michael and Carole as the coowners.
Michael sold his share of the cottage to defendant for $1
in 2000. Defendant is Michael’s son and Carole’s
brother. Carole transferred her ownership share of the
cottage to plaintiff, her son, by means of a quitclaim
deed in 2007. Defendant is the uncle of plaintiff.
Neither Carole nor plaintiff used the cottage much
between 1992 and 2007. Plaintiff admitted that there
was a period when his parents did not pay their half of
the property taxes, insurance, or maintenance ex-
penses. Plaintiff admitted that his mother had origi-
nally intended to pay back any missed payments from
her share of the cottage once the cottage was sold. He
testified that she changed her mind when Michael
transferred his full share to defendant instead of split-
ting it among all his children (including Carole).
Defendant testified that Carole admitted to him that
she owed insurance and taxes for all the years that she
and her husband had not helped pay them. Defendant
stated specifically that he paid all insurance and taxes
from 2000, when he acquired his interest, through
2013] S
ILICH V
R
ONGERS
141
2005. He also testified that his father alone had paid for
the land in 1960, along with 90 percent of the construc-
tion materials, and that Rudy Jr. had made only minor
contributions at the time. Defendant reported that he
and his father had handled maintenance through the
years, including cleaning up after a flood, various storm
damages, a raccoon infestation, and ice damage to the
pier on the river. He stated that Carole first started
contributing in 2006 or 2007, when the roof was re-
placed. However, defendant does concede that plaintiff
later made contributions sufficient to cover his and
Carole’s share of the expenses going back to 2000.
The trial court found that the expenses were shared
equally beginning in 2000, but that defendant still did
all the work of maintaining the property. There was also
an issue at trial regarding the personal property in the
cottage. The trial court found that the vast majority of
the personal property was owned exclusively by defen-
dant or his family, except for a few pieces that defendant
stipulated belonged to plaintiff’s family.
Under MCR 3.403(C), the trial court also awarded
plaintiff attorney fees. It limited the fees awarded to those
involved in organizing the partition sale and excluded fees
incurred in litigating the dispute between plaintiff and
defendant regarding the distribution of sale proceeds and
the personal property. Because the invoices submitted by
plaintiff’s attorney did not make this differentiation, the
trial court simply awarded fees for twice the amount of
time spent by the partition commissioner, reasoning that
plaintiff’s attorney would have needed more time than the
commissioner in order to prepare his materials. The fees
and costs awarded to plaintiff totaled $8,359.20.
1
1
This amount includes $134.20 that defendant was directed to pay
plaintiff because defendant had failed earlier to pay that amount to the
partition commissioner.
142 302 M
ICH
A
PP
137 [Aug
II. STANDARD OF REVIEW
Actions to partition land are equitable in nature.
MCL 600.3301; In re Temple Marital Trust, 278 Mich
App 122, 141; 748 NW2d 265 (2008). “[E]quitable
actions are reviewed de novo with the trial court’s
findings of fact reviewed for clear error....”Id. at 142.
Interpretation of a statute or court rule constitutes a
question of law that is also reviewed de novo. Burkhardt
v Bailey, 260 Mich App 636, 646; 680 NW2d 453 (2004).
III. DIVISION OF PROCEEDS
While MCR 3.403(D)(3) provides that two parties
who each own a 50 percent interest in property to be
sold in lieu of partition will each receive 50 percent of
the proceeds, MCL 600.3336(2) provides:
When partitioning the premises or dividing the money
received from a sale of the premises among the parties the
court may take into consideration the equities of the
situation, such as the value of the use of the premises by a
party or the benefits which a party has conferred upon the
premises.
In this case, the trial court found that defendant had
conferred sufficient benefits on the premises to deserve
75 percent of the proceeds from the sale.
Plaintiff argues that the trial court should have
considered only benefits conferred on the premises after
plaintiff became coowner with defendant, citing Fenton
v Miller, 116 Mich 45, 51; 74 NW 384 (1898), and
Jones-Collier v Cunningham, unpublished opinion per
curiam of the Court of Appeals, issued April 22, 2010
(Docket No. 289915). Fenton is not directly on point,
and Jones-Collier is not binding. MCR 7.215(C)(1).
Nonetheless, we find plaintiff’s argument persuasive.
2013] S
ILICH V
R
ONGERS
143
Fenton appears to be the only Michigan case involv-
ing a situation in which one of the parties at the time of
partition was not a coowner at the time benefits were
conferred on the property. In Fenton, the plaintiff sued
for partition, naming Annie Wendell and her daughters,
Eva and Romain, as defendants. The defendants had
been living in the property, and Fenton argued that he
was entitled to the rental value of the property because
they had excluded him from using it, though he owned
a
13
/
21
share of the property. Defendants argued that
Fenton should be required to pay his share of improve-
ments that Annie had made during the same period.
During the proceedings, Romain acquired Annie’s
and Eva’s interests so that at the time of partition only
Fenton and Romain had ownership interests in the
property. Nevertheless, the circuit court concluded that
assessments for rents or improvements were to be
assessed between Fenton and Annie, the respective
owners at the time in which the rents and improve-
ments had been incurred.
2
The Supreme Court agreed
that rents due to Fenton and the value of improvements
made by Annie should each be charged and should be
offset against each other. While the issue whether
Romain could be made liable for the rents was not
squarely before it, the Supreme Court did not criticize
the circuit court’s decision that the issue of rents and
improvements was to be resolved between the parties
who owned the property when they were incurred and
not between their successors. Fenton, 116 Mich at
48-51. The Jones-Collier Court cited Fenton in stating
that a party should not be charged for costs that did not
benefit that party. Jones-Collier, unpub op at 9.
2
The daughters, while apparently already coowners, had lived in the
house as minors in their mother’s household, and not independently.
144 302 M
ICH
A
PP
137 [Aug
Defendant offers no caselaw in support of the propo-
sition that in a partition action a subsequent owner may
be held liable, even in equity, for the debts of a prior
owner. The trial court also did not cite any authority
that would allow it to charge plaintiff with his parent’s
debts. It is particularly inappropriate to allow defen-
dant more than half of the proceeds in this case because
Carole Silich was still alive when this litigation began
and he could have sued her to recover any benefits he
conferred on her share of the property. Moreover, de-
fendant himself did not gain an ownership interest in
the property until 2000, yet he concedes that plaintiff
has repaid his mother’s share of the expenses going
back to 2000—expenses that were not chargeable to
plaintiff anyway. Thus the trial court actually compen-
sated defendant for expenses incurred by defendant’s
predecessor in interest and charged plaintiff for the
debts of his.
The statute allows adjustments for benefits con-
ferred on the premises by “a party,” but when we
remove the unequal contributions of the prior owners
from the equation, defendant did not spend any more
money on the property than plaintiff or Carole after he
became coowner. Thus, there is no adjustment to be
made on the basis of expenditures. There was testimony
that defendant also personally performed maintenance
work on the property, but those contributions were de
minimis and mostly occurred before either party to this
litigation had any ownership rights to the property.
Further, any credit for maintenance work is counterbal-
anced by the fact that defendant enjoyed unfettered use
of the property, rather than being forced to share it with
Carole or plaintiff.
We hold that it was improper for the trial court to
grant defendant more than 50 percent of the proceeds
2013] S
ILICH V
R
ONGERS
145
from the sale of the property when it was undisputed
that plaintiff had paid his share of the expenses for all
the years he was a coowner, and even all the years
during which defendant was a coowner, and defendant
did not provide any law by which the trial court could
hold a subsequent owner liable for the debts of a prior
owner.
IV. PLAINTIFF’S ATTORNEY FEES
The trial court granted plaintiff fees and costs total-
ing $8,359.20. Plaintiff contends that MCR 3.403(C)
required the court to award him all of his attorney fees,
rather than just those related to filing the suit and
arranging the partition sale. Defendant contends that
the fees were properly restricted to those related to the
actual partition sale, but that the trial court errone-
ously calculated the amount of fees that reasonably fall
into that category.
A. SCOPE OF ATTORNEY FEES
MCR 3.401(B) states:
If the court determines that the premises can be parti-
tioned, MCR 3.402 governs further proceedings. If the
court determines that the premises cannot be partitioned
without undue prejudice to the owners, it may order the
premises sold in lieu of partition under MCR 3.403.
Neither party suggests that the small property at issue
here could have been partitioned. The trial court there-
fore ordered it sold and proceeded under MCR 3.403
instead of MCR 3.402. Defendant argues that MCR
3.402 governed the time before the court’s determina-
tion that the property should be sold. This is incorrect.
The rule states that MCR 3.402 governs only if the
court determines that the premises can be partitioned.
146 302 M
ICH
A
PP
137 [Aug
Because the trial court found that the premises could
not be partitioned, it did not err by ignoring MCR 3.402.
Under MCR 3.403(C),
[t]he person conducting the sale shall deduct the costs and
expenses of the proceeding, including the plaintiff’s reason-
able attorney fees as determined by the court, from the
proceeds of the sale and pay them to the plaintiff or the
plaintiff’s attorney.
Neither party cites any cases interpreting this rule, nor
could we discover any. Plaintiff argues that the term
“proceeding” means the entire case, including all re-
lated litigation. The trial court, on the other hand,
essentially interpreted the term to encompass bringing
the partition suit and organizing the sale of the prop-
erty, while excluding expenses incurred in litigating the
questions of who owned the personal property on the
land and what percentage of the proceeds each party
should receive.
The court rule directs that the “person conducting the
sale shall deduct the costs and expenses of the proceed-
ing...from the proceeds of the sale....” Id. The only
reasonable interpretation of this directive is that it covers
the expenses that are necessary to the sale of the pre-
mises. Because the sale in lieu of partition requires a court
order, one of the parties must first bring an action.
Bringing the action benefits all owners of the property to
be sold by liquidating their interests in the property. It
therefore follows that the party who brought the action
should be compensated for bearing the necessary legal
expenses, and this is provided for by the rule.
It does not, however, make sense to extend the
definition of “proceeding” to cover all disputes that are
tangentially related to the sale of the property. Michi-
gan generally follows the “American rule” regarding
attorney fees, which provides that fees are not generally
2013] S
ILICH V
R
ONGERS
147
recoverable unless a statute, court rule, or common-law
exception provides otherwise. Nemeth v Abonmarche
Dev, Inc, 457 Mich 16, 37-38; 576 NW2d 641 (1998). The
interpretation advanced by plaintiff, while not implau-
sible on its face, would overturn the American rule for
no reason. The language of a statute should be read in
light of previously established rules of common law,
including common-law adjudicatory principles. Valeo
Switches & Detection Sys, Inc v EMCom, Inc, 272 Mich
App 309, 318; 725 NW2d 364 (2006).
Moreover, plaintiff’s interpretation would overturn
the American rule in a one-sided way, since only the
plaintiff would ever be entitled to attorney fees. This
reading would completely drain the value of the prop-
erty in cases, such as this one, in which the parties
litigate multiple issues at length. Plaintiff’s interpreta-
tion would lead to a plaintiff receiving all the benefit
simply because he or she filed the suit, without regard
for whether the plaintiff’s position was at all meritori-
ous. In the present case, for example, the cottage sold
for $69,000, and plaintiff would have received more
than $60,000 of that money in attorney fees alone.
Defendant then would have received less than $10,000,
despite the fact that the trial court found that he was
entitled to 75 percent of the proceeds of the sale.
Thus, the trial court’s interpretation of the rule is
plainly correct. We hold that MCR 3.403(C) authorizes
the award of attorney fees only to cover the plaintiff’s
expense in filing the suit and arranging the partition
sale, which theoretically benefits all parties to the
proceeding.
B. AMOUNT OF ATTORNEY FEES
Defendant also argues that even though the trial
court correctly interpreted MCR 3.403, the court none-
148 302 M
ICH
A
PP
137 [Aug
theless awarded an improper amount of attorney fees
given the facts of the case. The court stated that it was
impossible to determine from his invoices how much
time plaintiff’s attorney spent on activities that were
compensable under MCR 3.403(C). Instead, the trial
court noted that the partition commissioner spent 19.2
hours carrying out the sale of the premises, reasoned
that plaintiff’s attorney would have needed more time
for his related responsibilities, and therefore simply
estimated a figure of 40 hours. The parties agreed that
the attorney’s rate of $200 an hour was reasonable, so
the court awarded $8,000 plus certain incidental costs.
Defendant argues that it was improper to base the
calculation on the work performed by the commissioner
because some of his work was unrelated to the sale of
the property and was properly governed by MCR 3.402
rather than MCR 3.403. However, as previously dis-
cussed, MCR 3.402 has no bearing on this proceeding
because the premises could not be partitioned. Further,
a review of the reports the commissioner made to the
court does not reveal that any of his work was unnec-
essary to the sale. Therefore, it was not unreasonable
for the trial court to base its calculation on the commis-
sioner’s invoices.
Smith v Khouri, 481 Mich 519, 530-531; 751 NW2d
472 (2008) (opinion by T
AYLOR
, C.J.), calls for the trial
court to determine a reasonable hourly rate and multi-
ply it by the reasonable number of hours expended.
Although the calculation of the number of hours was
imprecise, the trial court explained that the invoices
submitted by plaintiff’s attorney did not sufficiently
differentiate between fees that were recoverable and
those that were not. This is a failure of the proofs, and
better evidence would have allowed more precision by
the trial court. Given what it had to work with, the trial
2013] S
ILICH V
R
ONGERS
149
court’s conclusions were reasonable.
3
The trial court did
not clearly err by finding $8,000 to be plaintiff’s rea-
sonable attorney fees related to the sale of the premises.
V. DEFENDANT’S ATTORNEY FEES
Defendant argues that plaintiff’s claim for the per-
sonal property located at the cottage was frivolous and
that defendant is therefore entitled to his attorney fees
for time spent defending that portion of the lawsuit.
MCL 600.2591 allows an award of fees against a party
who files a frivolous action. Under MCL 600.2591(3)(a),
a claim is frivolous if one of the following is true:
(i) The party’s primary purpose in initiating the ac-
tion...wastoharass, embarrass, or injure the prevailing
party.
(ii) The party had no reasonable basis to believe that the
facts underlying that party’s legal position were in fact
true.
(iii) The party’s legal position was devoid of arguable
merit.
The trial court did not clearly err by holding that
plaintiff’s claim was not frivolous. Plaintiff may reason-
ably have believed, on the basis of his mother’s affidavit
(exhibit 3 to plaintiff’s motion for summary disposi-
tion), that the personal property was jointly owned. If
that had been the case, plaintiff’s legal position that the
property could be partitioned or sold would have been
correct. That is, the trial court did not clearly err by
finding that plaintiff had a reasonable basis to believe
the facts underlying his position (his mother’s affidavit)
and that his legal position was not devoid of arguable
merit on the basis of those facts.
3
This may not always be the case, and attorneys should keep careful
and proper time records.
150 302 M
ICH
A
PP
137 [Aug
Defendant also argues that plaintiff intended the
claim to harass or injure him, but plaintiff did attempt
to abandon the personal property claim in his own
motion for summary disposition. Even if it is true that
plaintiff inflated the value of the personal property in
his claim, that is insufficient to prove that the trial
court clearly erred when it found that plaintiff did not
bring the relevant claim for an improper purpose. The
trial court’s factual finding that plaintiff’s claim was
not frivolous was not clearly erroneous. Therefore, the
trial court did not err when it denied defendant’s
request for attorney fees.
VI. REMAINING ISSUES
Defendant also argues that the trial court erred by
ordering the sale of the premises before determining
the parties’ relative entitlement to the proceeds. Defen-
dant argues that MCR 3.401 requires the court to
determine the parties’ relative shares in the property
before the property is sold. MCR 3.401(A) states that
the court shall make certain determinations, and MCR
3.401(B) states that the court may order the property
sold if it cannot be partitioned. However, the rule does
not expressly require the court to finish its determina-
tion of the parties’ relative rights before ordering the
sale; it only requires that the court must first decide
that the property cannot be partitioned. Defendant
states that knowing the trial court’s decision on the
latter point would have better enabled him to deter-
mine whether to bid on the property himself. This
might be true, and it might be better practice to proceed
as defendant suggests, but the rule does not require
such a procedure. Further, defendant concedes that,
because the property has already been sold, this Court
cannot grant him any remedy. An issue is moot if this
2013] S
ILICH V
R
ONGERS
151
court cannot fashion a remedy. People v Mansour, 206
Mich App 81, 82; 520 NW2d 646 (1994).
Finally, defendant asserts that plaintiff’s appeal was
vexatious. The appeal was not vexatious. Plaintiff was
correct that defendant was not entitled to 75 percent of
the proceeds from the sale of the cottage, and plaintiff’s
argument regarding MCR 3.403(C) was not groundless,
though it was ultimately unsuccessful.
VII. CONCLUSION
The trial court erred by granting 75 percent of the
proceeds to defendant. Because defendant has not
shown that equity requires the trial court to unequally
divide the proceeds of the partition, each party is
entitled to 50 percent of the proceeds. The trial court
correctly determined the scope of attorney fees to be
awarded to plaintiff under MCR 3.403(C) and did not
clearly err in its calculation of the specific amount
allowed in this case. We also affirm the trial court’s
refusal to grant attorney fees to defendant.
Affirmed in part, reversed in part, and remanded for
further proceedings consistent with this opinion. We do
not retain jurisdiction.
S
ERVITTO
,P.J., and W
HITBECK
and S
HAPIRO
, JJ., con-
curred.
152 302 M
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PODMAJERSKY v DEPARTMENT OF TREASURY
Docket No. 310996. Submitted August 6, 2013, at Lansing. Decided
August 13, 2013, at 9:00 a.m.
John Podmajersky and Laughing Dolphin LLC filed a petition in the
Tax Tribunal, challenging the Department of Treasury’s final assess-
ment of use tax under the Use Tax Act (UTA), MCL 205.91 et seq., for
petitioners’ use and storage of a boat in Michigan in 2006. Podma-
jersky, a majority interest holder in Laughing Dolphin and an Illinois
resident, purchased the boat in Rhode Island on July 7, 2006, with an
intended destination of Chicago, Illinois. The boat broke down on
August 16, 2006 because of water infiltration into the fuel tanks, and
the boat was towed to Harbor Springs, Michigan for repairs, where it
remained until September 3, 2006. The boat was moved to Macatawa,
Michigan on September 4, 2006 after a failed open-water engine test,
moved to Chicago on October 1, 2006, and returned to Macatawa 17
days later, where it was stored for the winter. An attorney for
Laughing Dolphin LLC informed the Illinois Department of Revenue
in April 2009 that the boat was not subject to Illinois’ use tax because
it had not been in Illinois for more than 30 days in 2006, 2007, or
2008, and spent most of its time in Michigan. The Illinois Department
of Revenue forwarded this information to the Treasury, and petition-
ers were issued a bill of taxes due in October 2009 for the use and
storage of the boat in 2006. The tribunal granted summary disposi-
tion in favor of respondent, rejecting petitioners’ exceptions to the
hearing officer’s proposed judgment in favor of respondent. Petition-
ers appealed.
The Court of Appeals held:
1. Under MCL 205.93(1) of the UTA, tangible personal prop-
erty that is purchased is presumed to have been acquired for
storage, use, or other consumption in Michigan and is subject to
the use tax if it is brought into Michigan within 90 days of the
purchase date. For purposes of MCL 205.92(c), “storage” is defined
as a keeping or retention of property in Michigan for any purpose
after the property loses its interstate character; the storage may be
for all purposes, without limitation, and includes storage necessi-
tated by the property’s mechanical breakdown. Whether an owner
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had the subjective intent to use, store, or otherwise consume the
tangible property in Michigan at the time of its purchase is
irrelevant for the purpose of determining if a presumption of
taxation arose under MCL 205.93(1)(a) when the boat was brought
to Michigan within 90 days of purchase. In this case, petitioners
failed to rebut the presumption of taxation that arose under MCL
205.93(1)(a). There was competent, material, and substantial
evidence on the record to support the tribunal’s conclusion that
petitioners brought the boat into Michigan within 90 days of its
purchase and used and stored the boat in Michigan in 2006; the
UTA does not provide a use tax exemption for storage that is
necessitated by mechanical breakdown. Although it occurred more
than 90 days after its purchase, the use and storage of the boat in
Michigan after its return from Chicago in October 2006, was
relevant on the ultimate issue of whether the petitioner used,
stored, or consumed tangible property in Michigan. The 90-day
period was relevant only to the issue of whether the presumption
of taxation arose under MCL 205.93(1)(a).
2. The tribunal did not err by relying on petitioners’ letter to
the Illinois Department of Revenue. The document could have
been authenticated by an Illinois Department of Revenue repre-
sentative, MRE 901(b)(1), and it was an admission of a party-
opponent and therefore not hearsay, MRE 801(d)(2).
3. MCL 205.94(1)(d) provides in part that property that is
brought into Michigan by a nonresident person for storage, use, or
consumption while temporarily within the state is exempt from
the UTA. Evidence of whether the use or storage of property in
Michigan by a nonresident is temporary is not limited by the
90-day period that applies to the presumption of taxation or
exemption that arises under MCL 205.93(1)(a) or (b)(1)(i). In this
case, the tribunal did not clearly err by concluding that the boat
was not exempt from taxation under MCL 205.94(1)(d). The
tribunal’s conclusion that the boat was not used and stored
temporarily in Michigan was supported by competent, material,
and substantial evidence on the record. Evidence of where the boat
was used and stored within and after 90 days of petitioners’
purchase was relevant in analyzing whether petitioners’ use of the
boat in Michigan was temporary for purposes of the MCL
205.94(1)(d) exemption.
4. MCL 205.93(1)(b)(i) provides that tangible personal prop-
erty used solely for personal, nonbusiness purposes that is pur-
chased outside Michigan is exempt from the UTA if (1) the
property is purchased by a person who is a nonresident at the time
of purchase, and (2) the property is brought into the state more
154 302 M
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than 90 days after the date of purchase; section (1)(b)(i) provides
a presumption of exemption, it is not an automatic exemption. In
this case, because the boat was used and stored in Michigan within
90 days of purchase, the MCL 205.93(1)(b)(i) exemption did not
apply; it was irrelevant that petitioners took the boat to Illinois
during the 90-day period and did not return until after that period
had expired.
Affirmed.
T
AXATION —
U
SE
T
AX —
P
RESUMPTION —
I
NTENT OF
O
WNER AT
T
IME OF
P
URCHASE
.
The Use Tax Act, MCL 205.91 et seq., imposes a tax on the privilege
of using, storing, or consuming personal property in Michigan;
under MCL 205.93(1), tangible personal property that is pur-
chased is presumed to have been acquired for storage, use, or other
consumption in Michigan and is subject to the use tax if it is
brought into Michigan within 90 days of the purchase date; for
purposes of MCL 205.92(c), “storage” is defined as a keeping or
retention of property in Michigan for any purpose after the
property loses its interstate character and the storage may be for
all purposes, without limitation; whether an owner had the
subjective intent to use, store, or otherwise consume the tangible
property in Michigan at the time of its purchase is irrelevant for
the purpose of determining if a presumption of taxation arose
under MCL 205.93(1)(a).
Miller, Canfield, Paddock & Stone, PLC (by Gregory
A. Nowak and Jackie J. Cook), for John Podmajersky
and Laughing Dolphin LLC.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Richard A. Bandstra, Chief Legal
Counsel, and Matthew B. Hodges, Assistant Attorney
General, for the Department of Treasury.
Before: S
AAD
,P.J., and K. F. K
ELLY
and G
LEICHER
,JJ.
P
ER
C
URIAM
. Petitioners, John Podmajersky and
Laughing Dolphin LLC, appeal as of right a judgment of
the Michigan Tax Tribunal (MTT), which affirmed an
assessment of use tax by respondent, Department of
Treasury (Treasury), under Michigan’s Use Tax Act
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(UTA), MCL 205.91 et seq. The MTT concluded that
petitioners were subject to use tax for using and storing
a boat in Michigan between 2006 and 2008. Finding no
error warranting reversal, we affirm.
I. BASIC FACTS
Laughing Dolphin LLC is a Rhode Island limited
liability company. Podmajersky is a member of the
Laughing Dolphin LLC and has held a majority interest
in the company since its formation in 2002. He is an
Illinois resident, has never been a Michigan resident,
and currently resides in Chicago.
On July 7, 2006, Podmajersky purchased a 65-foot
yacht (the boat) in Rhode Island. According to Podmajer-
sky, at the time of purchase he intended to take the boat to
Chicago. Petitioners hired a professional captain to trans-
port the boat from Rhode Island to Chicago, traveling
through New York and then through the Great Lakes.
The boat departed Rhode Island on July 31, 2006. Be-
tween August 11 and August 13, the boat stopped in
Cleveland, Ohio to pick up Podmajersky and three guests
for the remainder of the trip.
According to Podmajersky, on August 16, 2006, a
guest traveling on board the boat mistakenly pumped
hundreds of gallons of water into the fuel tanks, causing
a catastrophic breakdown in Lake Michigan and neces-
sitating a tow. A tug boat arrived several hours later
and towed the boat to the Irish Boat Shop in Harbor
Springs, Michigan.
The boat remained in Harbor Springs from August 16,
2006 to September 3, 2006, while it underwent repairs to
remove water from the fuel tanks and fuel systems. The
Irish Boat Shop performed a number of mechanical re-
pairs to address the water infiltration concerns and also
156 302 M
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performed some nonessential repairs to the television and
stereo, as well as some cosmetic work to improve the
appearance of the boat.
It appears that Podmajersky went back to Chicago
while the boat repairs were being performed in Harbor
Springs. In an e-mail to the boat captain dated August 25,
2006, Podmajersky stated: “We are on the way out the[]
door to go to Harbor Springs. I will be back on Monday
afternoon. Hopefully we can speak on Tuesday and settle
up our account. Still trying to get a slip in Chicago. I don’t
know if we will be settl[]ing in Holland or closer to home.”
On September 3, 2006, after the repairs were complete,
Podmajersky took the boat back out onto Lake Michigan.
According to Podmajersky, “[a]fter being underway for
some time, the vessel service indicators again began to
alert us to water in the fuel lines. The vessel engines were
not operating properly, and it was clear that the water had
not been fully removed from the fuel system.” Podmajer-
sky further averred: “The fuel filters on the vessel contin-
ued to fill with water and numerous systems indicators
represented that water remained a safety hazard for the
boat.” “I had to stop the boat every 15 minutes to clear
water and algae from the fuel filters.”
On September 4, 2006, Podmajersky docked the boat
in Macatawa, Michigan, approximately 85 nautical
miles from Chicago. According to Podmajersky, the boat
was diverted to Macatawa to “avoid the potential of
another catastrophic breakdown that could again
strand Laughing Dolphin on the open waters of Lake
Michigan.” In his original affidavit, Podmajersky indi-
cated that “extensive repairs to fix the continuing water
damage to the fuel system were undertaken at Eldean’s
ship yard in Macatawa, Michigan from September 4,
2006 through October 1, 2006.” However, an invoice
from Eldean’s Shipyard indicates that the only work
Eldean’s Shipyard performed on the boat was related to
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a sewage smell. Eldean’s Shipyard replaced a 24-volt
bilge pump; the total cost, including parts and labor,
was $133.18. In an attempt to explain this apparent
discrepancy, petitioner Podmajersky submitted a second
affidavit, in which he averred:
While the boat was in Macatawa, from September 4,
2006 through October 1, 2006, I traveled to Macatawa on
the weekends in order to personally replace numerous
fuel/water separator filters and to conduct test runs of the
vessel on the inland waters of Lake Macatawa in order to
drain the remaining water from the fuel system and to test
the seaworthiness of the vessel before determining that it
was safe to depart for Illinois. This practice was partially
successful as we started to observe a reduction in the
amount of contamination to the extent that I felt it would
be possible to make an offshore passage on a day offering
completely calm seas and maximum visibility.
On October 1, 2006, Podmajersky left Macatawa and
proceeded to Chicago. However, “halfway through the
journey, onboard service indicators again began to de-
tect water in the fuel filters. [Podmajersky] made the
decision to proceed to Chicago.” Upon arrival, Podma-
jersky was accommodated with transient docking in the
Chicago Harbor System. The boat remained in Chicago
for 17 days before it returned to Macatawa, where it
was stored at Eldean’s Shipyard for the winter. Podma-
jersky explained that indoor storage was required by his
insurance company.
An invoice from Eldean’s Shipyard indicates that it
performed work to the boat’s fuel system on May 15,
2007. The work was completed in one day.
II. PROCEDURAL HISTORY
Sometime in 2009, the Illinois Department of Rev-
enue inquired whether the boat was subject to Illinois
158 302 M
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use tax. In a letter dated April 15, 2009, an attorney
who indicated that he was “Power of Attorney for
Laughing Dolphin LLC,” represented that the boat was
not subject to Illinois use tax because it was used almost
exclusively in Michigan. The letter provides in relevant
part: “It is the taxpayer’s position that the Laughing
Dolphin was never used more than 30 accumulated days
in any calendar year in Illinois since its purchase in July
2006 and, thus, has never been subject to Illinois use
tax.” The letter continues, “at no time was the boat in
Illinois for more than 30 days in 2006, 2007 or 2008. As
you can see, the Laughing Dolphin spends most of its
time in Michigan. Therefore, the taxpayer was not
subject to the Illinois Use Tax in 2006 through 2008.”
The Illinois Department of Revenue forwarded this
information to the Michigan Department of Treasury,
which then began an inquiry to determine whether the
boat was subject to Michigan’s use tax. On October 12,
2009, Treasury issued a bill of taxes due for the 2006 tax
year in the amount of $98,557.97, representing $66,000
in tax due, $16,500 in penalties, and $16,057.97 in
interest.
Petitioners protested the assessment, and in a letter
dated December 9, 2009, Podmajersky, through his
attorney, opined that the boat was not subject to the
UTA because its presence in Michigan within 90 days of
purchase was temporary and necessitated by cata-
strophic breakdowns.
An informal conference was held on April 27, 2010.
Following the conference, the hearing referee recom-
mended that the assessment be cancelled, finding that
the boat was exempt from use tax under the “temporary
use” exemption, MCL 205.94(1)(d).
On September 15, 2010, Treasury issued a decision
and order of determination rejecting the hearing refer-
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ee’s recommendation and, on September 22, 2010,
Treasury issued a final bill of taxes against petitioner in
the amount of $101,105.29.
On October 27, 2010, petitioners filed for review with
the tax tribunal. After conducting discovery, petitioner
filed a motion for summary disposition under MCR
2.116(C)(10). Petitioners argued that the boat was not
subject to the UTA because, according to petitioners, it
was not “brought” into Michigan within 90 days of
purchase because the boat’s presence in Michigan was
the result of a catastrophic breakdown. Further, peti-
tioners argued, even if the boat was brought into
Michigan within 90 days of purchase, the boat was not
subject to the UTA because petitioners did not acquire
it for storage, use, or consumption in Michigan. Peti-
tioners argued that the evidence clearly demonstrated
that it was intended the boat would be used in Illinois
and was diverted to Michigan only due to catastrophic
breakdowns.
Podmajersky acknowledged that he had brought the
boat back to Michigan for winter storage in October
2006; however, petitioners emphasized that this oc-
curred after the 90 day period expired. Therefore,
petitioners argued that the boat was exempt from use
tax under MCL 205.93(1)(b)(i), which provides a pre-
sumption of exemption if “[t]he property is purchased
by a person who is not a resident of this state at the
time of purchase and is brought into this state more
than 90 days after the date of purchase.” Finally,
petitioners argued that the boat was exempt under
MCL 205.94(d) because it was brought into the state by
a nonresident while temporarily in the state.
On April 12, 2012, the hearing officer issued a
proposed judgment denying petitioners’ motion for
summary disposition and granting summary disposi-
160 302 M
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tion in favor of Treasury under MCR 2.116(I). The
hearing officer concluded that the presumption of taxa-
tion arose when the boat entered Michigan in August
2006 and stayed for the balance of the year, with the
exception of 17 days in Chicago. The hearing officer
rejected petitioners’ breakdown/necessity defense: “Al-
though it may have been a practical necessity to repair
the boat in Michigan, that does not change the fact that
keeping the boat here for those purposes constitutes
storage and use.” The hearing officer drew an analogy
from tort law: “It has been held that a person is liable
for damages caused by a trespass notwithstanding that
he or she was forced by a storm to remain moored to a
dock on the property of another in order to prevent
injury or loss of life. Vincent v Lake Erie Transp Co, 109
Minn 456; 124 NW 221 (1910).” The hearing officer
determined that, “[a]ssuming arguendo that there is
any validity to Petitioner’s ‘break-down’ defense, that
defense vanished when the craft returned to Michigan
after a brief trip to Chicago.”
The hearing officer further rejected petitioners’
claims that the boat was exempt under MCL
205.93(1)(b)(i) and MCL 205.94(d). The hearing officer
reasoned that the MCL 205.93(1)(b)(i) exemption did
not apply because it only applies to property brought
into the state after 90 days, and petitioner had brought
the boat into the state within 90 days of its purchase.
The hearing officer also determined that MCL
205.94(d) was not applicable because petitioners’ use
and storage of the boat in Michigan was not temporary.
On May 3, 2012, petitioners filed exceptions to the
proposed order, arguing that: (1) the hearing officer
erred by determining that petitioners’ intent was not a
consideration in determining whether a presumption of
taxation arose from the boat being brought into Michi-
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gan within 90 days of purchase; (2) the proposed order
improperly relied on assumptions as to petitioners’
intent; (3) the hearing officer improperly considered
petitioners’ use of the boat in Michigan after 90 days
from the date of purchase; and (4) the hearing officer
improperly relied on a Minnesota decision from 1910.
On June 6, 2012, the tribunal issued a final opinion
and judgment rejecting petitioners’ exceptions and
adopting the proposed judgment granting summary
disposition in favor of Treasury.
Petitioners now appeal as of right.
III. STANDARD OF REVIEW
Appellate review of the tribunal decision is limited.
Unless fraud is alleged, an appellate court reviews the
decision for a “misapplication of the law or adoption of
a wrong principle.” Liberty Hill Housing Corp v City of
Livonia, 480 Mich 44, 49; 746 NW2d 282 (2008) (quo-
tation marks and citation omitted). The tribunal’s
factual findings are deemed conclusive provided they
are supported by competent, material, and substantial
evidence on the whole record. Id. When statutory
interpretation is at issue, appellate review of the tribu-
nal’s decision is de novo. Id. In an appeal from an order
of the Tax Tribunal, the appellant bears the burden of
proof. ANR Pipeline Co v Dep’t of Treasury, 266 Mich
App 190, 198; 699 NW2d 707 (2005).
IV. ANALYSIS
The UTA imposes a tax on “the privilege of the using,
storing, or consuming tangible personal property” in
Michigan. MCL 205.93(1); Terco, Inc v Dep’t of Trea-
sury, 127 Mich App 220, 226; 339 NW2d 17 (1983). “The
use tax complements the sales tax and was designed to
162 302 M
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govern those transactions not covered by the General
Sales Tax Act.” Guardian Indus Corp v Dep’t of Trea-
sury, 243 Mich App 244, 249; 621 NW2d 450 (2000).
MCL 205.93(1)(a) provides in pertinent part:
(1) There is levied upon and there shall be collected from
every person in this state a specific tax for the privilege of
using, storing, or consuming tangible personal property in
this state at a rate equal to 6% of the price of the
property....Forthepurpose of the proper administration
of this act and to prevent the evasion of the tax, all of the
following shall be presumed:
(a) That tangible personal property purchased is subject
to the tax if brought into this state within 90 days of the
purchase date and is considered as acquired for storage,
use, or other consumption in this state.
MCL 205.92(b) and (c) define “use” and “storage” as
follows:
(b) “Use” means the exercise of a right or power over
tangible personal property incident to the ownership of
that property including transfer of the property in a
transaction where possession is given. Converting tangible
personal property acquired for a use exempt from the tax
levied under this act to a use not exempt from the tax levied
under this act is a taxable use.
(c) “Storage” means a keeping or retention of property
in this state for any purpose after the property loses its
interstate character.
A. PETITIONERS FAILED TO REBUT THE PRESUMPTION
OF TAXATION THAT AROSE AS SOON AS THE BOAT
ENTERED MICHIGAN
The boat was brought into Michigan within 90 days
of purchase. Petitioners argue that MCL 205.93(1)(a)
contains an element of intent; that is, before assessing
the use tax, Treasury must first establish that petition-
ers acquired the property with the intent to use or store
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it in Michigan. Petitioners would thus impose two
requirements for the presumption under MCL
205.93(1)(a) to arise: (1) the taxpayer must bring the
property into Michigan within 90 days of purchase; and
(2) the taxpayer must have acquired the property for
use, storage, or other consumption in Michigan.
Contrary to petitioners’ argument, nothing in MCL
205.93(1)(a) requires that Treasury establish the tax-
payer’s subjective intent when bringing the property
into the state. Rather, under MCL 205.93(1)(a) it is
presumed that property is acquired for use, storage, or
other consumption in Michigan and is therefore subject
to taxation if the taxpayer brings the property into the
state within 90 days of purchase. See Guardian Indus
Corp, 243 Mich App at 250-251 (“[T]he language [of
MCL 205.93(1)(a)] merely provided that tangible per-
sonal property brought into the state within ninety
days of purchase was presumed to be acquired for
storage, use, or other consumption in this state.”). See
also Kellogg Co v Dep’t of Treasury, 204 Mich App 489,
493; 516 NW2d 108 (1994) (“There is no dispute that
the aircraft in this case were brought into Michigan
within ninety days of purchase. Hence, it is presumed
that they were subject to use tax.”).
Because petitioners brought the boat into Michigan
within 90 days of purchase, it is presumed that the boat
is subject to use tax. Thus, it is petitioners who had the
“burden of overcoming the presumption of taxation, or
establishing that an exemption applies.” Id. at 493.
Petitioners argue that the presumption was overcome
because the evidence showed that the use and storage of
the boat in Michigan was necessitated by catastrophic
engine failure. Petitioners’ argument is unpersuasive.
Petitioners argue in essence that they are exempt
from the UTA. “Tax exemptions are disfavored, and the
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burden of proving an entitlement to an exemption is on
the party claiming the right to the exemption. Tax
exemptions are strictly construed against the taxpayer
because they represent the antithesis of tax equality.”
Guardian Indus Corp, 243 Mich App at 249 (quotation
marks and citation omitted).
Nothing within the UTA provides an exemption for
storage, use, or consumption when said storage, use, or
consumption is necessitated by mechanical breakdown.
Indeed, the act defines “storage” to mean “a keeping or
retention of property in this state for any purpose after
the property loses its interstate character.” MCL
205.92(c) (emphasis added). The plain and ordinary
meaning of the phrase “for any purpose” evidences a
legislative intent that the storage be for all purposes
without limitation. See Dep’t of Agriculture v Appletree
Mktg, LLC, 485 Mich 1, 8; 779 NW2d 237 (2010).
The record contains competent, material, and sub-
stantial evidence that the boat was both used and stored
in Michigan in 2006. The boat entered Michigan waters
as early as August 16, 2006, and it remained in Michi-
gan until October 1, 2006. During this time, petitioners
used the boat on Lake Michigan and Lake Macatawa. In
his second affidavit, Podmajersky averred that between
September 4, 2006 and October 1, 2006, petitioner
“traveled to Macatawa on the weekends...toconduct
test runs of the vessel on the inland waters of Lake
Macatawa....” Further, the boat was stored at the
Irish Boat Shop in Harbor Springs and Eldean’s Ship-
yard in Macatawa. Petitioner’s reason for storage—the
alleged mechanical breakdowns—is irrelevant.
Although the boat left Michigan on October 1, 2006,
it returned to Macatawa, Michigan on October 17, 2006,
for heated indoor storage. Since the boat’s return to
Michigan, petitioner used and stored it almost exclu-
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sively in Michigan. In the April 15, 2009 letter to the
Illinois Department of Revenue, petitioners stated that
“at no time was the boat in Illinois for more than 30
days in 2006, 2007 or 2008.” The letter provided a
detailed account of the boat’s activity after October 17,
2006. “As you can see,” the letter concludes, “the [boat]
spends most of its time in Michigan.”
Petitioners argue that use and storage of the boat in
Michigan after October 17, 2006, is irrelevant because it
did not occur within 90 days of purchase. The 90-day
period, however, is only relevant to the issue of whether
the presumption of taxation arises under MCL
205.93(1). If the property is brought into the state
within 90 days of its purchase, the presumption of
taxation applies. MCL 205.93(1)(a). If the property is
brought into the state after 90 days, the presumption of
taxation does not apply; rather, the property is pre-
sumed exempt. MCL 205.93(1)(b)(i). Evidence of what
occurred during and after the 90-day period is still
relevant to the ultimate issue of whether the taxpayer
used, stored, or consumed tangible personal property in
Michigan.
We reject petitioners’ argument that the tribunal
erred by relying on petitioners’ letter to the Illinois
Department of Revenue. Treasury received the docu-
ment pursuant to a file sharing agreement between
Michigan and Illinois and there is no reason why the
letter could not be authenticated at a hearing. The
representative from Treasury who received the letter
from the Illinois Department of Revenue could testify
that the document is what it is claimed to be. MRE
901(b)(1). Alternatively, a representative from the Illi-
nois Department of Revenue could provide an appropri-
ate foundation that the letter is what it is claimed to be.
Id. Further, the document is not inadmissible hearsay.
166 302 M
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MRE 801(d)(2) excludes admissions by party-opponents
from the definition of hearsay. The letter was offered
against petitioners. Id. Further, it was written by peti-
tioners’ attorney pursuant to a power of attorney, i.e. “a
person authorized by the party to make a statement
concerning the subject.” MRE 801(d)(2)(C).
Accordingly, the presumption of taxation arose as
soon as the boat entered Michigan, which petitioners
failed to rebut. The record contains competent, mate-
rial, and substantial evidence that the boat was both
used and stored in Michigan in 2006 and thereafter.
Therefore, the boat is subject to use tax unless other-
wise exempt.
B. PETITIONERS ARE NOT EXEMPT FROM USE TAX
UNDER MCL
205.94(1)(d)
MCL 205.94(1)(d) provides as follows:
(1) The following are exempt from the tax levied under
this act, subject to subsection (2):
***
(d) Property that is brought into this state by a nonresi-
dent person for storage, use, or consumption while tempo-
rarily within this state, except if the property is used in this
state in a nontransitory business activity for a period
exceeding 15 days.
We reject petitioners’ argument that the use and
storage of the boat in Michigan was “temporary” while
it made its journey to Chicago. Petitioners focus only on
the boat’s use and storage in Michigan within 90 days of
purchase. As noted above, the 90-day period is only
relevant to the issue of whether the presumption of
taxation or exemption arises under MCL 205.93(1)(a)
and (b)(1)(i). The “temporary use” exemption contains
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no limitation period. Thus, the 90-day period is largely
irrelevant. Evidence of what occurred within and after
90 days of purchase is relevant to the ultimate issue of
whether the taxpayer used, stored, or consumed tan-
gible personal property in Michigan.
The record contains competent, material, and sub-
stantial evidence to support the tribunal’s conclusion
that the boat was not used and stored “temporarily” in
Michigan. As previously discussed, the boat entered
Michigan waters as early as August 16, 2006, and it
remained in Michigan until October 1, 2006. Although
the boat left Michigan on October 1, 2006, it returned
17 days later and it has remained almost exclusively in
Michigan since its return. On the basis of the evidence
in the record, the tribunal did not clearly err when it
concluded that the boat was not exempt from taxation
under MCL 205.94(1)(d).
C. PETITIONERS ARE NOT ENTITLED TO THE PRESUMPTION
OF EXEMPTION UNDER MCL
205.93(1)(b)(i)
MCL 205.93(1)(b)(i) provides:
(1) There is levied upon and there shall be collected from
every person in this state a specific tax for the privilege of
using, storing, or consuming tangible personal property in
this state at a rate equal to 6% of the price of the
property....Forthepurpose of the proper administration
of this act and to prevent the evasion of the tax, all of the
following shall be presumed:
***
(b) That tangible personal property used solely for
personal, nonbusiness purposes that is purchased outside
of this state and that is not an aircraft is exempt from the
tax levied under this act if 1 or more of the following
conditions are satisfied:
168 302 M
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153 [Aug
(i) The property is purchased by a person who is not a
resident of this state at the time of purchase and is brought
into this state more than 90 days after the date of purchase.
Contrary to petitioners’ argument, MCL
205.93(1)(b)(i) does not provide an automatic exemp-
tion from taxation. Rather, it merely provides a pre-
sumption of exemption. And the presumption arises
only if “the property is used solely for personal, non-
business purposes” and “is purchased by a person who
is not a resident of this state at the time of purchase and
is brought into this state more than 90 days after the
date of purchase.” In the present case, the boat was
used and stored in Michigan within 90 days of the date
of purchase. Therefore, the presumption does not apply.
It is irrelevant that petitioner later took the boat to
Illinois and did not bring it back to Michigan until after
the 90 day period expired.
Affirmed.
S
AAD
,P.J., and K. F. K
ELLY
and G
LEICHER
, JJ., con-
curred.
2013] P
ODMAJERSKY V
D
EP
’
TOF
T
REASURY
169
BLOOMFIELD TOWNSHIP v KANE
Docket No. 308241. Submitted July 10, 2013, at Detroit. Decided August 13,
2013, at 9:05 a.m.
Jordan Kane was charged with operating a motor vehicle while
intoxicated in violation of MCL 257.625(1) and Bloomfield Town-
ship Ordinances, § 36-19, which adopts the Michigan Vehicle Code,
MCL 257.1 et seq., as an ordinance of Bloomfield Township, after
he was involved in a single-vehicle accident. A laboratory analysis
indicated that defendant had 250 nanograms of Zolpidem, a
sedative used to treat insomnia, per milliliter of blood in his
system. Defendant moved to dismiss the charges in the 48th
District Court, asserting that Zolpidem was not a controlled
substance listed on schedules 1 to 5 of article 7 of the Public Health
Code, MCL 333.7101 et seq. The court, Diane D’Agostini, J., denied
the motion. Defendant appealed in the Oakland Circuit Court,
Rudy J. Nichols, J., which reversed, holding that Zolpidem was not
listed by statute as a controlled substance, that MCL 257.625(1)
did not incorporate the rules promulgated by the Board of Phar-
macy and, thus, that the prosecution could not establish the
elements of the offense. The prosecution appealed by leave granted
and defendant cross-appealed.
The Court of Appeals held:
1. Under MCL 257.625(1) of the Michigan Vehicle Code, a
person shall not operate a vehicle upon a highway or other place
open to the general public or generally accessible to motor vehicles
if the person is operating while intoxicated. Under MCL
257.625(1)(a), a person is operating while intoxicated if the person
is under the influence of a controlled substance. The Michigan
Vehicle Code defines the term “controlled substance” by reference
to the definition contained in the Public Health Code. MCL
333.7104(2) of the Public Health Code defines “controlled sub-
stance” as a drug, substance, or immediate precursor included in
schedules 1 to 5 of part 72 of the Public Health Code, MCL
333.7201 et seq. Zolpidem is not listed on the statutory schedules.
The Public Health Code, however, delegates the classification of
additional substances to the Board of Pharmacy, which classified
Zolpidem as a schedule-4 controlled substance in Mich Admin
170 302 M
ICH
A
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170 [Aug
Code R 338.3123(1)(aaa). Administrative rules have the force and
effect of law. Accordingly, the circuit court erred by dismissing the
charged offense on the basis that Zolpidem was not listed by
statute as a controlled substance.
2. Under MCL 257.625(8) a person shall not operate a vehicle
upon a highway or other place open to the general public or
generally accessible to motor vehicles if the person has in his or her
body any amount of a schedule-1 controlled substance under MCL
333.7212, or a rule promulgated under that section, or of a
controlled substance described in MCL 333.7214(a)(iv). Defendant
contended that because subsection (8) specifically refers to the
administrative rules but subsection (1) does not, under the doc-
trine of expressio unius est exclusio alterius, the lack of a reference
to the administrative rules in subsection (1) meant that he could
not be convicted of violating subsection (1) for driving under the
influence of a substance that is only classified as a controlled
substance in the administrative rules. The doctrine, however,
could not be used to defeat clear legislative intent. The plain
language of MCL 257.625 indicates that subsection (1) governs
operating a vehicle while intoxicated generally, while subsection
(8) is a zero-tolerance provision specifically relating to schedule-1
substances, including those identified in administrative rules
promulgated under MCL 333.7212, and to certain schedule-2
substances. The fact that subsection (1) fails to refer to a schedule
or to the administrative rules does not prevent criminal prosecu-
tion pursuant to the terms of that general provision.
3. A party cannot claim lack of notice when the assertion is
belied by the pleadings he or she has filed in the case. In this case,
although defendant contended that he lacked notice of the requi-
site charge, his brief on appeal and lower court pleadings identified
the statute at issue, alleged that the statute was inapplicable to the
substance ingested, and contested whether he had the requisite
mens rea. Thus, defendant’s argument that he lacked notice of the
charge was belied by his pleadings. In addition, defendant alleged
that Bloomfield Township’s adoption of the entire motor vehicle
code failed to provide notice of the specific crime that he was
charged with. The adoption of the Michigan Vehicle Code by local
ordinance, however, did not leave defendant to wonder what
violation was at issue given the specific citation in the misde-
meanor complaint to the Michigan Vehicle Code violation, MCL
257.625(1).
Reversed and remanded for further proceedings including
reinstatement of the charged offense.
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C
RIMINAL
L
AW —
O
PERATING
W
HILE
I
NTOXICATED —
C
ONTROLLED
S
UBSTANCES —
A
DMINISTRATIVE
R
ULES
.
Under MCL 257.625(1) of the Michigan Vehicle Code, a person shall
not operate a vehicle upon a highway or other place open to the
general public or generally accessible to motor vehicles if the
person is operating while intoxicated; under MCL 257.625(1)(a), a
person is operating while intoxicated if the person is under the
influence of a controlled substance; the Michigan Vehicle Code
defines the term “controlled substance” by reference to the
definition contained in the Public Health Code, which, in MCL
333.7104(2), defines “controlled substance” as a drug, substance,
or immediate precursor included in schedules 1 to 5 of part 72 of
the Public Health Code, MCL 333.7201 et seq.; the Public Health
Code delegates the classification of additional substances to the
Board of Pharmacy; substances included in the schedules under
administrative rules promulgated by the Board of Pharmacy may
be used to support a charge of operating while intoxicated.
Secrest Wardle (by Vahan C. Vanerian) for Bloomfield
Township.
Foley & Mansfield, PLLP (by Howard I. Wallach), for
Jordan Kane.
Before: F
ORT
H
OOD
,P.J., and F
ITZGERALD
and R
ONAYNE
K
RAUSE
,JJ.
P
ER
C
URIAM
. The prosecution appeals by leave
granted the circuit court opinion and order dismissing
the charge of operating a motor vehicle while intoxi-
cated
1
in violation of MCL 257.625(1) and Bloomfield
Township Ordinances, § 36-19.
2
We reverse the judg-
ment of the Oakland Circuit Court and remand this
case to the 48th District Court for reinstatement of the
charge and for proceedings consistent with this opinion.
1
A person is “operating while intoxicated” if he or she is “under the
influence of . . . a controlled substance....”People v Koon, 494 Mich 1,
6 n 14; 832 NW2d 724 (2013) (citation and quotation marks omitted).
2
The local ordinance adopts the Michigan Vehicle Code, MCL 257.1 et
seq., as an ordinance of Bloomfield Township.
172 302 M
ICH
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170 [Aug
I. BASIC FACTS AND PROCEDURAL HISTORY
On October 6, 2010, Officer Steve Sherwood of the
Bloomfield Township Police Department was informed
of a disabled vehicle on the Interstate-75 business loop
at Opdyke Road.
3
Upon arriving at the scene, the officer
found defendant trying to start the vehicle, which had
extensive damage including damage to the driver’s side
wheels. Defendant informed the officer that he was
driving when he suddenly hit the guardrail. The officer
noted that defendant had difficulty maintaining his
balance and that his speech was impaired. Defendant
allegedly told the officer that he takes Ritalin, although
he had not taken the drug in some time, but that his
mother had given him Xanax, which caused his driving
accident. Defendant was transported to a hospital
where a blood sample was taken. The lab results
indicated that defendant had 250 nanograms of Zolpi-
dem per milliliter of blood in his system. Zolpidem is a
sedative used to treat insomnia that is sold under the
brand name Ambien. Defendant was initially charged
with operating a vehicle with a controlled substance in
his system, MCL 257.625(8), but that charge was dis-
missed, and he was instead charged with operating
while intoxicated, specifically while under the influence
of a controlled substance, MCL 257.625(1)(a). Defen-
dant moved to dismiss the charges in district court,
alleging that Zolpidem was not a controlled substance
contained in schedules 1 to 5 of the controlled sub-
stances act, MCL 333.7101 et seq. In an affidavit,
3
An evidentiary hearing was not conducted in the lower courts, and a
police report of the incident is not contained in the lower court record.
Accordingly, this statement of facts was crafted using facts found in the
prosecution’s brief on appeal, the arguments made during the hearing on
the motion to dismiss held in district court, and defendant’s affidavit.
Defendant did not dispute the basic facts delineated in the prosecution’s
brief on appeal.
2013] B
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173
defendant further asserted that he had mistakenly
ingested Zolpidem and, therefore, he did not have the
requisite mens rea to support the elements of the
offense. The district court denied the motion to dismiss,
holding that the regulation of Zolpidem by administra-
tive rule was sufficient to support the elements of the
offense. The district court did not rule on the mens rea
issue. On appeal, the circuit court reversed, holding
that Zolpidem was not listed by statute as a controlled
substance, and the offense at issue, MCL 257.625(1),
did not incorporate the rules promulgated by the Board
of Pharmacy; therefore, the prosecution could not es-
tablish the elements of the offense of operating a vehicle
while under the influence of a controlled substance. We
granted the prosecution’s application for leave to ap-
peal.
4
II. STANDARD OF REVIEW AND STATUTORY CONSTRUCTION
The interpretation and application of a statute pre-
sents a question of law that the appellate court reviews
de novo. People v Zajaczkowski, 493 Mich 6, 12; 825
NW2d 554 (2012). “[T]he intent of the Legislature
governs the interpretation of legislatively enacted stat-
utes.” People v Bylsma, 493 Mich 17, 26; 825 NW2d 543
(2012). The intent of the Legislature is expressed in the
statute’s plain language. People v Cole, 491 Mich 325,
330; 817 NW2d 497 (2012). When the statutory lan-
guage is plain and unambiguous, the Legislature’s
intent is clearly expressed, and judicial construction is
neither permitted nor required. Id. If a statute specifi-
cally defines a term, the statutory definition is control-
ling. People v Williams, 298 Mich App 121, 126; 825
NW2d 671 (2012). When “terms are not expressly
4
Bloomfield Twp v Kane, unpublished order of the Court of Appeals
entered September 28, 2012 (Docket No. 308241).
174 302 M
ICH
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170 [Aug
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.” Zajaczkowski, 493
Mich at 13. However, technical words and phrases that
have acquired a peculiar and appropriate meaning in
law shall be construed and interpreted in accordance
with that meaning. See MCL 8.3a; Bylsma, 493 Mich at
31. Additionally, when a term is not defined in a statute,
the dictionary definition of the term may be consulted
or examined. People v Perkins, 473 Mich 626, 639; 703
NW2d 448 (2005). The court’s reliance on dictionary
definitions assists the goal of construing undefined
terms in accordance with their ordinary and generally
accepted meanings. People v Morey, 461 Mich 325,
330-331; 603 NW2d 250 (1999). “However, recourse to
dictionary definitions is unnecessary when the Legisla-
ture’s intent can be determined from reading the stat-
ute itself.” People v Stone, 463 Mich 558, 563; 621 NW2d
702 (2001).
When interpreting a statute, the court must avoid a
construction that would render part of the statute
surplusage or nugatory. People v Huston, 489 Mich 451,
462; 802 NW2d 261 (2011). “Generally, when language
is included in one section of a statute but omitted from
another section, it is presumed that the drafters acted
intentionally and purposely in their inclusion or exclu-
sion.” People v Peltola, 489 Mich 174, 185; 803 NW2d
140 (2011). “When the Legislature adopts or incorpo-
rates by reference a provision of an existing statute,
regulation, or rule, the separate provision that is
adopted or incorporated becomes part of the legislative
enactment as it existed at the time of the legislation,
and any subsequent amendment of the incorporated
provision has no effect.” Jager v Rostagno Trucking Co,
Inc, 272 Mich App 419, 423; 728 NW2d 467 (2006). “The
Legislature is presumed to act with knowledge of appel-
2013] B
LOOMFIELD
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175
late court statutory interpretations, and silence by the
Legislature for many years following judicial construc-
tion of a statute suggests consent to that construction.”
People v Higuera, 244 Mich App 429, 436; 625 NW2d
444 (2001) (citation omitted). When two statutes or
provisions lend themselves to a construction that avoids
conflict, that interpretation is controlling. People v
Ellis, 224 Mich App 752, 756; 569 NW2d 917 (1997).
Statutes that relate to the same matter are consid-
ered to be in pari materia. People v Perryman, 432 Mich
235, 240; 439 NW2d 243 (1989). “Statutes that address
the same subject or share a common purpose are in pari
materia and must be read together as a whole.” People
v Harper, 479 Mich 599, 621; 739 NW2d 523 (2007).
This general rule of statutory interpretation requires
courts to examine the statute at issue in the context of
related statutes. Id.
Statutes in pari materia are those which relate to the
same person or thing, or the same class of persons or
things, or which have a common purpose. It is the rule that
in construction of a particular statute, or in the interpre-
tation of its provisions, all statutes relating to the same
subject, or having the same general purpose, should be read
in connection with it, as together constituting one law,
although enacted at different times, and containing no
reference one to the other. [Detroit v Mich Bell Tel Co, 374
Mich 543, 558; 132 NW2d 660 (1965), overruled on other
grounds by City of Taylor v Detroit Edison Co, 475 Mich
109, 120; 715 NW2d 28 (2006).]
When statutes relate to the same subject matter, they
must be construed together for purposes of determining
legislative intent. Van Antwerp v Michigan, 334 Mich
593, 605; 55 NW2d 108 (1952). The objective of the in
pari materia rule is to give effect to the legislative
purpose as found in statutes addressing a particular
subject. World Book, Inc v Dep’t of Treasury, 459 Mich
176 302 M
ICH
A
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170 [Aug
403, 416; 590 NW2d 293 (1999). “Conflicting provisions
of a statute must be read together to produce an
harmonious whole and to reconcile any inconsistencies
whenever possible.” Id. at 416. See also Mich Basic
Prop Ins Ass’n v Office of Fin & Ins Regulation, 288
Mich App 552, 560; 808 NW2d 456 (2010).
When the Legislature delegates power to a commis-
sioner, the commissioner is authorized to adopt rules
and regulations as the commissioner deems necessary
to give effect to the purposes underlying the laws of this
state. See American Community Mut Ins Co v Comm’r
of Ins, 195 Mich App 351, 360; 491 NW2d 597 (1992).
These rules and regulations must be promulgated in
accordance with the provisions of the Administrative
Procedures Act.
5
Id. at 360-361. Each agency subject to
the provisions of the Administrative Procedures Act
must adopt rules governing the procedures prescribed
or authorized thereby. New Prods Corp v State Hwy
Comm’r, 352 Mich 73, 79; 88 NW2d 528 (1958). “A rule
adopted by an agency in accordance with the Adminis-
trative Procedures Act, MCL 24.201 et seq., is a legisla-
tive rule that has the force and effect of law.” Morley v
Gen Motors Corp, 252 Mich App 287, 290; 651 NW2d
808 (2002). “Since the adoption of a rule by an agency
has the force and effect of law and may have serious
consequences of law for many people, the Legislature
has [prescribed] an elaborate procedure for rule pro-
mulgation.” Detroit Base Coalition for the Human
Rights of the Handicapped v Dep’t of Social Servs, 431
Mich 172, 177; 428 NW2d 335 (1988). The rulemaking
process includes “public hearings, public participation,
notice, approval by the joint committee on administra-
tive rules, and preparation of statements, with intervals
between each process.” Id. at 177-178. These require-
5
MCL 24.201 et seq.
2013] B
LOOMFIELD
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ments were imposed to account for the delegation by
legislative bodies to administrative agencies the “au-
thority to make public policy....”Id. at 178. Further,
these requirements assure that the essential functions
of the legislative process are not forfeited when agencies
perform lawmaking functions that were previously car-
ried out by the Legislature. Id. “In construing admin-
istrative rules, courts apply principles of statutory
construction.” Id. at 185. Under the Administrative
Procedures Act, “any statutory definitions of words,
phrases, or rules of construction made applicable to all
statutes also apply to rules unless it is clear that such
definition or construction was not intended.” Id. at 185;
see also MCL 24.232(1).
Article 7 of the Public Health Code, MCL 333.7101 et
seq., governs controlled substances. MCL 333.7201 pro-
vides that the “administrator shall administer this
article and may add substances to, or delete or resched-
ule all substances enumerated in the schedules in [MCL
333.7212, MCL 333.7214, MCL 333.7216, MCL
333.7218, and MCL 333.7220] in compliance with the
administrative procedures act of 1969.” The “adminis-
trator” is defined as “the Michigan board of pharmacy
or its designated or established authority.” MCL
333.7103(2); see also People v Turmon, 417 Mich 638,
645; 340 NW2d 620 (1983). When making a determina-
tion regarding the classification of a substance, the
Board of Pharmacy must consider: (1) the actual or
relative potential for abuse, (2) the scientific evidence of
its pharmacological effect, (3) the current scientific
knowledge regarding the substance, (4) the history and
current pattern of abuse, (5) the scope, duration, and
significance of abuse, (6) the risk to the health of the
general public, (7) the potential for the substance to
create dependence, and (8) whether the substance is an
immediate precursor to a substance already controlled
178 302 M
ICH
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170 [Aug
under MCL 333.7201 et seq. MCL 333.7202(1); Turmon,
417 Mich at 646. If the substance presents an imminent
danger, the Board of Pharmacy may schedule or re-
schedule the substance by emergency rule. MCL
333.7203(2). A scientific commission advises and con-
sults with the Board of Pharmacy with regard to the
classification of substances as controlled substances.
MCL 333.7206; Turmon, 417 Mich at 646. The classifi-
cation of a substance as a controlled substance is
premised on the possession of certain characteristics.
Turmon, 417 Mich at 646. The Legislature created
clear, detailed standards to guide the Board of Phar-
macy and to facilitate judicial review. Id. at 647. Be-
cause new drugs are developed and introduced at a
rapid rate and incredible ingenuity is exhibited in the
discovery of new methods to abuse drugs, it is necessary
to employ “a measure of flexibility in the area of drug
regulation.” Id. at 647-648.
In Turmon, id. at 643, the defendant was charged
with possession with intent to deliver 22 tablets of
phenmetrazine and possession with intent to deliver 43
tablets of pentazocine. He pleaded guilty to the reduced
charge of possession of pentazocine and was sentenced
to two years’ probation. Id. On appeal, the defendant
alleged that the Legislature’s delegation of authority to
the Board of Pharmacy to schedule controlled sub-
stances was improper and further asserted that he was
not given notice that possession of pentazocine was a
criminal act. Id. Specifically, the defendant alleged that
the Legislature could not delegate power to the Board of
Pharmacy to create criminal offenses, and administra-
tive amendments to the controlled substances act de-
prived him of fair notice that possession of pentazocine
was a criminal offense. Id. at 643, 649, 655. In a concise
statement, our Supreme Court rejected the defendant’s
challenges:
2013] B
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We hold that the Legislature’s delegation of authority to
add controlled substances to pre-existing schedules in
accordance with specific criteria is not an unlawful delega-
tion of power despite the fact that penal consequences flow
from violation of the board’s rules. The statute contains
sufficient standards and safeguards to avoid infirmity
under both separation of powers and due process chal-
lenges. Additionally, the board did not abuse its discretion
in the promulgation of the rule. [Id. at 641-642.]
Our Supreme Court examined the Board of Pharmacy’s
eight-factor test for determining if a substance should
be added, deleted, or reclassified among the schedules.
The Court noted that the board was assisted by a
commission that included medical professionals, and
that the Board of Pharmacy could only include a sub-
stance on a schedule if it determined the substance
possessed certain characteristics found within that
schedule. For example, a schedule-3 substance must
have less of a potential for abuse than substances listed
on schedules 1 and 2, must have a currently accepted
medical use, and it must be true that abuse of the
substance might lead to moderate or low physical
dependence or high psychological dependence. Id.at
646-647. In light of these safeguards to agency action,
the Court rejected the assertion that the board was
permitted to act in an arbitrary or discriminatory
manner. Id. at 647-648.
[T]he power to define crimes, unlike some legislative
powers, need not be exercised exclusively and completely
by the Legislature. Provided sufficient standards and safe-
guards are included in the statutory scheme, delegation to
an executive agency is appropriate, and often necessary, for
the effectuation of legislative powers.
Clearly, the controlled substances act is premised on a
legislative design....TheLegislature formulated a com-
prehensive group of crimes dealing with controlled sub-
stances. An index of drugs adjudged dangerous or harmful
180 302 M
ICH
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170 [Aug
was compiled, and the drugs were graduated according to
potential for abuse. Penalties, including fines and incar-
ceration, were coordinated to reflect the gravity of the
offense and the seriousness of the controlled substance
involved. Finally, the Board of Pharmacy, an eight-member
board consisting of six pharmacists and two public mem-
bers, was given the strictly controlled authority to modify
the controlled substances schedule to [ensure] that it
reflect current developments in the drug industry.
. . . While it is true that more serious consequences flow
from a felony conviction under the controlled substances
act, we find no meaningful distinction between the delega-
tion of power to make rules regarding misdemeanor of-
fenses and the delegation of rulemaking relative to felony
offenses. The severity of the penalty does not destroy the
accountability of the Legislature nor the safeguards pro-
vided to protect the public. Therefore, the Legislature has
not unconstitutionally delegated a nondelegable power. [Id.
at 652-653.]
Our Supreme Court also rejected the defendant’s
claim that he lacked notice of the violation of law
because the classification was contained in an adminis-
trative rule and the schedule statutes were not
amended to reflect the inclusion of new controlled
substances, id. at 655-658. The Court stated:
We do not find it unreasonable to expect the people of
this state to acquire familiarity with its laws through
reference to a compilation published by the state. Refer-
ence to the controlled substances act would lead the reader
to conclude that the schedules are continually being modi-
fied by the Board of Pharmacy and that the agency’s
supplementation should be sought elsewhere....
***
. . . [P]ublication of the rule in the administrative code
provided sufficient notice that defendant’s conduct was
proscribed. [Id. at 657, 660.]
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III. APPLICATION OF LAW TO THE FACTS
In the present case, defendant was charged with
violating MCL 257.625(1). MCL 257.625 addresses of-
fenses involving the operation of a vehicle while under
the influence and provides in relevant part:
(1) A person, whether licensed or not, shall not operate
a vehicle upon a highway or other place open to the general
public or generally accessible to motor vehicles, including
an area designated for the parking of vehicles, within this
state if the person is operating while intoxicated. As used in
this section, “operating while intoxicated” means either of
the following:
(a) The person is under the influence of alcoholic liquor,
a controlled substance, or other intoxicating substance or a
combination of alcoholic liquor, a controlled substance or
other intoxicating substance.
(b) The person has an alcohol content of 0.08 grams or
more per 100 milliliters of blood, per 210 liters of breath, or
per 67 milliliters of urine, or, beginning October 1, 2018,
the person has an alcohol content of 0.10 grams or more per
100 milliliters of blood, per 210 liters of breath, or per 67
milliliters of urine.
***
(8) A person, whether licensed or not, shall not operate
a vehicle upon a highway or other place open to the general
public or generally accessible to motor vehicles, including
an area designated for the parking of vehicles, within this
state if the person has in his or her body any amount of a
controlled substance listed in schedule 1 under section
7212 of the public health code, 1978 PA 368, MCL
333.7212, or a rule promulgated under that section, or of a
controlled substance described in section 7214(a)(iv)ofthe
public health code, 1978 PA 368, MCL 333.7214.
In the present case, defendant was ultimately charged
with violating MCL 257.625(1)(a) for having Zolpidem
182 302 M
ICH
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170 [Aug
in his system when he was involved in the accident. In
order to evaluate the validity of his defense, we must
examine the relevant provisions of the Michigan Vehicle
Code
6
and the Public Health Code
7
in pari materia
because they address the same subject matter. Harper,
479 Mich at 621. Although MCL 257.625(1)(a) does not
define the term “controlled substance,” MCL 257.8b of
the Michigan Vehicle Code defines the term as “a
controlled substance or controlled substance analogue
as defined in section 7104 of the public health code, Act
No. 368 of the Public Acts of 1978, being section
333.7104 of the Michigan Compiled Laws.”
8
MCL
333.7104(2) of the Public Health Code defines “con-
trolled substance” as “a drug, substance, or immediate
precursor included in schedules 1 to 5 of part 72 [MCL
333.7201 et seq.].”
As previously noted, article 7 of the Public Health
Code governs controlled substances. MCL 333.7101 et
seq. Although the code contains five schedules listing
regulated substances,
9
Zolpidem, the substance in-
gested by defendant, is not listed on those schedules.
However, our inquiry does not conclude with the exami-
nation of the schedules. Rather, the Michigan Vehicle
Code requires that for purposes of determining what
constitutes a controlled substance, the health code must
be examined, and the health code appropriately del-
egates classification of additional drugs through the use
of administrative rules, and administrative rules have
the force and effect of law. Turmon, 417 Mich at
6
MCL 257.1 et seq.
7
MCL 333.1101 et seq.
8
Defendant contends that the Michigan Vehicle Code does not define
“controlled substance.” On the contrary, MCL 257.8b defines the term
“controlled substance” by reference to the Public Health Code.
9
See MCL 333.7212, MCL 333.7214, MCL 333.7216, MCL 333.7218,
and MCL 333.7220.
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652-653; Morley, 252 Mich App at 290. In the area of
drug regulation, resort to the flexibility of administra-
tive rules is necessary because new drugs are developed
and introduced at a rapid rate. Turmon, 417 Mich at
647-648. Therefore, the Legislature’s delegation to the
Board of Pharmacy the authority to create penal con-
sequences from board rules is not constitutionally in-
firm. Zolpidem is classified as a schedule-4 controlled
substance pursuant to Mich Admin Code R
338.3123(1)(aaa). Accordingly, the circuit court erred by
dismissing the charged offense.
Defendant contends that the plain language of MCL
257.625 demonstrates that the prosecution cannot
prove the elements of the offense. Specifically, defen-
dant was originally charged with violating MCL
257.625(8), which contains an express reference to
schedule 1 of the Public Health Code as well as the rules
promulgated under that section, however, MCL
257.625(1) contains no reference to the schedules or the
administrative rules. Therefore, defendant submits, the
doctrine of “expressio unius est exclusio alterius” ap-
plies to bar his prosecution under MCL 257.625(1).
Under the doctrine, “the express mention in a statute of
one thing implies the exclusion of other similar
things....”People v Jahner, 433 Mich 490, 500 n 3;
446 NW2d 151 (1989). However, this maxim is merely
an aid to interpreting legislative intent and cannot
govern if the result would defeat the clear legislative
intent. American Federation of State, Co & Muni Em-
ployees v Detroit, 267 Mich App 255, 260-261; 704 NW2d
712 (2005).
In this case, we cannot apply this doctrine because it
would render MCL 257.625(1) surplusage or nugatory.
Huston, 489 Mich at 462. The plain language of MCL
257.625 indicates that MCL 257.625(1) governs operat-
184 302 M
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ing a vehicle while intoxicated generally, while MCL
257.625(8) is a zero-tolerance provision specifically re-
lating to schedule-1 substances, including those identi-
fied in rules promulgated under MCL 333.7212, and to
certain schedule-2 substances. The reason specific
schedules and rules are mentioned in MCL 257.625(8) is
to narrow the applicability of that zero-tolerance provi-
sion. The fact that MCL 257.625(1) fails to refer to a
schedule or the administrative rules does not prevent
criminal prosecution pursuant to the terms of that
broader provision. The doctrine of “expressio unius est
exclusio alterius” is inapplicable here.
Next, defendant alleges that Bloomfield Township’s
adoption and citation of the entire Michigan Vehicle Code
failed to provide notice of the crime that he was charged
with, thereby depriving him of notice of the charged
offense and impacting his ability to defend against the
charge. We disagree. A review of the misdemeanor com-
plaint reveals that defendant was charged with violating
the local ordinance as well as MCL 257.625(1). The
adoption of the Michigan Vehicle Code by local ordinance
did not leave defendant to wonder what violation was at
issue because of the specific citation to the Michigan
Vehicle Code violation, MCL 257.625(1). Additionally, al-
though defendant contends that he lacks notice of the
charge, his brief on appeal and lower court pleadings
identified the statute at issue, alleged that the statute was
inapplicable to the substance ingested, and contested
whether he had the requisite mens rea. A party cannot
claim lack of notice when the assertion is belied by the
pleadings he or she has filed in the case. See DeGeorge v
Warheit, 276 Mich App 587, 592-593; 741 NW2d 384
(2007). This claim of error is without merit.
10
10
We also note that defendant contends that it is “undisputed” that he
did not have the requisite mens rea to commit the offense. This issue was
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Reversed and remanded for reinstatement of the
charged offense and for proceedings consistent with this
opinion. We do not retain jurisdiction.
F
ORT
H
OOD
,P.J., and F
ITZGERALD
and R
ONAYNE
K
RAUSE
, JJ., concurred.
not ruled upon by the lower courts, and we are an error-correcting court.
Burns v Detroit (On Remand), 253 Mich App 608, 615; 660 NW2d 85
(2002). “[U]nder MCL 257.625(1), [conviction of operating a motor
vehicle while intoxicated] requires proof of three elements: (1) the
defendant operated a motor vehicle (2) on a highway or other place open
to the general public or generally accessible to motor vehicles (3) while
under the influence of liquor or a controlled substance, or a combination
of the two, or with a blood alcohol content of 0.08 grams or more per 100
milliliters of blood.” People v Hyde, 285 Mich App 428, 448; 775 NW2d
833 (2009) (emphasis omitted). The offense of operating a motor vehicle
while under the influence is “not a specific intent crime....”SeePeople
v Raisanen, 114 Mich App 840, 844; 319 NW2d 693 (1982). “[U]nder the
influence” effectively means that the defendant was “substantially
deprived of normal control or clarity of mind.” See id. The elements of
the offense do not contain a requirement that the defendant knowingly
ingest a controlled substance. However, we do not have undisputed
record evidence to apply this law to the facts of this case. The credibility
of an assertion presents an issue for the trier of fact. People v Malone, 287
Mich App 648, 654; 792 NW2d 7 (2010). In light of the limited record, we
cannot analyze whether a mistaken ingestion occurred, an issue for the
trier of fact, and whether the factual predicate of the defense of mistake
could be supported at trial. Therefore, we do not resolve this issue.
186 302 M
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MICHIGAN COALITION OF STATE EMPLOYEE UNIONS v
STATE OF MICHIGAN
Docket No. 314048. Submitted June 12, 2013, at Lansing. Decided
August 13, 2013, at 9:10 a.m. Leave to appeal sought.
Michigan Coalition of State Employee Unions, International Union
UAW and Local 6000, Michigan Corrections Organization/SEIU,
Michigan Public Employees/SEIU Local 517M, Michigan State
Employees Association, AFSCME Local 5, Michigan AFSCME
Council 25, and others filed an action in the Court of Claims
against the state of Michigan, State Employees Retirement Sys-
tem, State Employees Retirement System Board, Department of
Technology, Management and Budget, Director of the Department
of Technology, Management and Budget, Director of Retirement
Services Office and the state Treasurer, claiming that challenged
portions of 2011 PA 264, which amended the State Employees’
Retirement Act (SERA), MCL 38.1 et seq., were unconstitutional
because they regulated conditions of employment without the
State Civil Service Commission’s approval as required by Const
1963, art 11, § 5, and challenging the manner in which overtime
was applied to the calculation of final average compensation. In
two orders, the trial court, Joyce A. Draganchuk, J., granted
plaintiffs summary disposition, determining that the 2011 PA 264
amendments to MCL 38.35a, and MCL 38.50a violated 1963 Const,
art 11, § 5 because the four percent contribution mandate altered
a rate of compensation or condition of employment for classified
civil servants, which only the commission had authority to do, not
the Legislature. The court concluded that MCL 38.1e, as amended
by 2011 PA 264, was similarly unconstitutional because the change
in how overtime was calculated for pension purposes constituted a
change in compensation without the required approval or input by
the commission. Defendants appealed.
The Court of Appeals held:
1. MCL 38.35a and MCL 38.50a, as amended by 2011 PA 264,
in part require employees hired before April 1, 1997, who had
maintained membership in the state’s defined benefit plan to
choose to either contribute 4 percent of their income to that plan
or to switch to the 401(k) defined contribution plan that was
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applicable to state employees hired on or after April 1, 1997
without a required contribution. Compensation is something given
or received for services, debt, loss, injury, etc. Pension benefits,
insurance premium payments, uniforms, and other fringe benefits
are part of an employee’s compensation. An employer’s ability to
legally discontinue pension benefits does not render the benefit
outside the scope of compensation. However, if an employer
changes the amount, nature, or quality of a pension benefit, the
employer is changing the amount, nature, or quality of compen-
sation, as well as a condition of employment. In this case, the
ratifiers of the 1963 Constitution would have considered that the
fringe benefits provided to civil service employees, which includes
the pension plan offered as part of the compensation package,
constituted rates of compensation or conditions of employment for
purposes of the SERA. Changing the nature of the plan changed
the nature of the benefit. The 2011 PA 264 amendments to MCL
38.35a and MCL 38.50a violate Const 1963, art 11, § 5 because
only the commission, not the Legislature, has authority to change
a civil service employees’ rate of compensation or the conditions of
employment.
2. MCL 38.1e(1), as amended by 2011 PA 264, alters the
manner in which overtime compensation is applied to the calcula-
tion of final average compensation for purposes of retirement
benefits. Rather than looking at the three highest-paid consecutive
years for overtime, the amended statute looks back six years and
averages the overtime for that period. Wages, hours, and other
conditions of employment are mandatory subjects of collective
bargaining and the phrase “wages, hours, and other terms and
conditions of employment” is comparable to the phrases “rates of
compensation” and “all conditions of employment” over which the
commission has plenary authority under Const 1963, art 11, § 5.
The 2011 PA 264 amendment to MCL 38.1e violates Const 1963,
art 11, § 5 because the calculation of pension benefits is within the
commission’s authority, not the Legislature’s.
3. Under MCL 8.5, if invalid or unconstitutional language can
be deleted from an act and still leave it complete and operative, the
remainder of the act is permitted to stand. The trial court erred by
declaring 2011 PA 264 unconstitutional in its entirety without
determining whether the MCL 38.1e, MCL 38.35a, and MCL
38.50a amendatory language deemed unconstitutional could be
struck from the act while preserving the remainder.
Affirmed in part, reversed in part and remanded for further
proceedings.
188 302 M
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C
ONSTITUTIONAL
L
AW —
C
IVIL
S
ERVICE
C
OMMISSION —
C
IVIL
S
ERVICE
E
MPLOYEES —
R
ATES OF
C
OMPENSATION —
P
ENSION
B
ENEFITS —
C
HANGE IN
C
ALCULATION
OF
P
ENSION
B
ENEFITS
.
Under 1963 Const, art 11, § 5, only the Michigan Civil Service
Commission may alter civil service employees’ rates of compensa-
tion and conditions of employment; for purposes of the State
Employees’ Retirement Act, MCL 38.1 et seq., compensation is
something given or received for services, debt, loss, injury, etc.;
pension benefits, insurance premium payments, uniforms, and
other fringe benefits are part of an employee’s rates of compensa-
tion or conditions of employment; the Legislature may not pro-
mulgate acts that alter a civil service employee’s pension plan,
including the manner in which overtime compensation is calcu-
lated for purposes of pension benefits, because the commission has
plenary authority to alter rates of compensation and conditions of
employment.
William A. Wertheimer for all plaintiffs.
Michael B. Nicholson and Ava R. Barbour for Inter-
national Union UAW and Local 6000.
Sachs Waldman, P.C. (by Mary Ellen Gurewitz and
Marshall J. Widick), for SEIU Local 517M and Michi-
gan Corrections Organization.
Frazer, Trebilcock, Davis & Dunlap, P.C. (by Michael
E. Cavanaugh and Brandon W. Zuk), for Michigan
Coalition of State Employee Unions.
Miller Cohen, PLC (by Robert D. Fetter and Keith D.
Flynn), for Michigan AFSCME Council 25.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Richard A. Bandstra, Chief Legal
Counsel, Frank J. Monticello, and Larry F. Brya, Assis-
tant Attorneys General, for the State of Michigan, State
Employees Retirement System, State Employees Re-
tirement System Board, Department of Technology
Management and Budget and its Director, Direct of
Retirement Services Office, and State Treasurer.
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Before: O
WENS
,P.J., and G
LEICHER
and S
TEPHENS
,JJ.
P
ER
C
URIAM
. Defendants appeal by right the trial
court’s order holding 2011 PA 264 unconstitutional
because it violates Const 1963, art 11, § 5. 2011 PA 264
amended the State Employees’ Retirement Act (SERA),
MCL 38.1 et seq. Plaintiffs challenged those changes
that required employees hired before April 1, 1997, who
had maintained membership in the state pension sys-
tem (the “defined benefit pension plan” or “DB plan”)
to choose either to contribute 4 percent of their income
to that plan or to switch to the 401(k) plan (the “defined
contribution plan” or “DC plan,” applicable for state
employees hired on or after April 1, 1997) without a
required contribution.
1
They also challenged the change
in the way overtime is applied to the calculation of
“final average compensation.”
For the reasons set forth below, we affirm the trial
court’s determination that the challenged portions of
2011 PA 264 are unconstitutional because they are
incompatible with Const 1963, art 11, § 5. However, we
reverse the trial court’s determination that 2011 PA
264 is void in its entirety and remand the case to the
trial court for a determination regarding the severabil-
ity of the remaining portions of 2011 PA 264, pursuant
to MCL 8.5. On remand the trial court must determine
1
The state retirement system is consistent with the common under-
standing of these terms:
[A] “defined contribution plan” or “individual account plan”
promises the participant the value of an individual account at
retirement, which is largely a function of the amounts contributed
to that account and the investment performance of those contri-
butions. A “defined benefit plan,” by contrast, generally promises
the participant a fixed level of retirement income, which is
typically based on the employee’s years of service and compensa-
tion. [LaRue v DeWolff, Boberg & Assoc, Inc 552 US 248, 250 n 1;
128 S Ct 1020; 169 L Ed 2d 847 (2008).
190 302 M
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whether any additional portions of the act must be
deleted in light of this opinion, and if so, whether 2011
PA 264 can be permitted to stand as redacted.
I. FACTS
A. LEGISLATIVE BACKGROUND OF
2011 PA 264
As an initial matter, we take note of the history of
SERA and the State Civil Service Commission (“the
Commission”). The Commission was created in 1940 by
a voter-initiated amendment to the 1908 Constitution
that ended the wasteful spoils system of state employ-
ment rampant at the time. Subsequently, and with the
Commission’s authorization, the Legislature passed
1943 PA 240, which created SERA, a system for em-
ployee retirement benefits. The Commission’s power
and authority was subsequently modified by Const
1963, art 11, § 5 when the state Constitution was
overhauled in 1963. That provision states, in relevant
part:
The commission shall classify all positions in the classi-
fied service according to their respective duties and respon-
sibilities, fix rates of compensation for all classes of posi-
tions, approve or disapprove disbursements for all personal
services, determine by competitive examination and per-
formance exclusively on the basis of merit, efficiency and
fitness the qualifications of all candidates for positions in
the classified service, make rules and regulations covering
all personnel transactions, and regulate all conditions of
employment in the classified service.
***
Increases in rates of compensation authorized by the
commission may be effective only at the start of a fiscal
year and shall require prior notice to the governor, who
shall transmit such increases to the legislature as part of
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his budget. The legislature may, by a majority vote of the
members elected to and serving in each house, waive the
notice and permit increases in rates of compensation to be
effective at a time other than the start of a fiscal year.
Within 60 calendar days following such transmission, the
legislature may, by a two-thirds vote of the members
elected to and serving in each house, reject or reduce
increases in rates of compensation authorized by the com-
mission. Any reduction ordered by the legislature shall
apply uniformly to all classes of employees affected by the
increases and shall not adjust pay differentials already
established by the civil service commission. The legislature
may not reduce rates of compensation below those in effect
at the time of the transmission of increases authorized by
the commission.
The 2011 PA 264 provisions at issue in this case
added language to MCL 38.1e, MCL 38.35a, and
MCL 38.50a. SERA, as amended by 2011 PA 264, states
in relevant part:
Sec 1e. (1) “Final average compensation” means the
average of those years of highest annual compensation paid
to a member during a period of 5 consecutive years of
credited service; or if the member has less than 5 years of
credited service, then the average of the annual compensa-
tion paid to the member during the member’s total years of
credited service. For a person whose retirement allowance
effective date is on or after October 1, 1987, “final average
compensation” means the average of those years of highest
annual compensation paid to a member during a period of
3 consecutive years of credited service; or if the member
has less than 3 years of credited service, then the average of
the annual compensation paid to the member during the
member’s total years of credited service. Beginning Janu-
ary 1, 2012, compensation used to compute final average
compensation shall not include includable overtime com-
pensation paid to the member on or after January 1, 2012,
except that a member’s final average compensation that is
calculated using any time period on or after January 1,
2012 shall also include, as prorated for the time period, the
192 302 M
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average of annual includable overtime compensation paid
to the member during the 6 consecutive years of credited
service ending on the same final date as used to calculate
the final average compensation or, if the calculation date is
before January 1, 2015, the average of the annual includ-
able overtime compensation paid to the member on or after
January 1, 2009 and before the final date as used to
calculate the final average compensation. [MCL 38.1e(1)
(emphasis added).]
***
Sec 35a. (1) Beginning with the first pay date after April 1,
2012 and ending upon the member’s termination of employ-
ment or attainment date, as applicable under [MCL 38.50a],
each member who made the election under [MCL 38.50a]
shall contribute an amount equal to 4% of his or her
compensation to the employees’ savings fund to provide for
the amount of retirement allowance that is calculated only on
the credited service and compensation received by that mem-
ber after March 31, 2012. The member shall not contribute
any amount under this subsection for any years of credited
service accrued or compensation received before April 1, 2012.
[MCL 38.35a(1) (emphasis added).]
***
Sec 50a. (1) The retirement system shall permit each
member who is a member on December 31, 2011 to make
an election with the retirement system to continue to
receive credit for any future service and compensation after
March 31, 2012, for purposes of a calculation of a retire-
ment allowance under this act. A member who makes the
election under this section shall make the contributions
prescribed in [MCL 38.35a].
(2) As part of the election under subsection (1), the
retirement system shall permit the member to make a
designation that the contributions prescribed in [MCL
38.35a] shall be paid only until the member’s attainment
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date.
[
2
]
A member who makes the election under subsection
(1) and who makes the designation under this subsection
shall make the contributions prescribed in [MCL 38.35a]
only until the member’s attainment date. A member who
makes the election under subsection (1) and who does not
make the designation or rescinds the designation under
this subsection shall make the contributions prescribed in
section 35a until termination of employment.
***
(4) A member who does not make the election under this
section or who rescinds an election on or before the close of
the election period under this section is subject to all of the
following:
(a) He or she ceases to receive credit for any future service
and compensation for purposes of a calculation of a retire-
ment allowance as prescribed in [MCL 38.20j], beginning
12 midnight on March 31, 2012.
(b) He or she becomes a qualified participant in Tier 2
beginning 12:01 a.m. on April 1, 2012.
(c) He or she shall receive a retirement allowance
calculated under [MCL 38.20] that is based only on credited
service and compensation allowed under [MCL 38.20j(1)
and (2)]. This subdivision does not affect a person’s right to
health insurance coverage provided under [MCL 38.20d] or
credit for service provided under [MCL 38.20j(3)].
(5) A member who makes the election under this section
and the designation under subsection (2) and who does not
rescind the election and designation on or before the close
of the election period under this section is subject to all of
the following:
(a) He or she ceases to receive credit for any future
service and compensation for purposes of a calculation of a
2
As defined in MCL 38.20j(9), “ ‘attainment date’ means the final day
of the pay period in which the member attains 30 years of credited service
or the date the member terminates employment, whichever first occurs.”
194 302 M
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retirement allowance as prescribed in [MCL 38.20j], begin-
ning 12 midnight on the member’s attainment date.
(b) He or she becomes a qualified participant in Tier 2
beginning 12:01 a.m. on the day after the attainment date
if he or she remains employed by this state.
(c) He or she shall receive a retirement allowance
calculated under [MCL 38.20] that is based only on
credited service and compensation allowed under
[MCL38.20j(5) and (6)]. This subdivision does not affect
a person’s right to health insurance coverage provided
under [MCL 38.20] or credit for service provided under
[MCL 38.20j(7)].
***
(9) As used in this section, “attainment date” means
that term as defined in [MCL 38.20j]. [MCL 38.50a(1), (2),
(4), (5), and (9) (emphasis added).]
In sum, SERA, as amended by 2011 PA 264,
requires a DB member to elect to remain in the DB
plan and contribute four percent of his or her com-
pensation to the employees’ savings fund until termi-
nation or until reaching his or her attainment date, if
the latter was designated by the employee.
MCL 38.50a(1) and MCL 38.35a(1). Accordingly, an
election to remain in the DB plan would effectively
reduce the employee’s immediate compensation. The
legislation also changed from three to six the number of
years to be averaged when calculating the amount of
overtime pay to be included when determining an
employee’s final average compensation. MCL 38.1e(1).
Therefore, any employee who remained in the DB plan
also had their final average compensation reduced. An
employee who did not make the election was switched to
the “Tier 2” DC plan, for which no contribution was
required. MCL 38.50a(4).
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II. PROCEDURAL HISTORY
Plaintiffs filed the instant lawsuit on February 13,
2012, alleging that 2011 PA 264 was enacted in violation
of Const 1963, art 11, § 5 because it lacked the Com-
mission’s approval or input and it purported to regulate
conditions of employment. Plaintiffs specifically alleged
that the four percent contribution required of DB plan
members violated Const 1963, art 11, § 5 because only
the Commission has authority to fix rates of compensa-
tion, unless
2
/
3
of the Legislature voted to reject or
reduce an increase.
The parties filed cross motions for summary disposi-
tion, and the trial court heard oral argument on June 20,
2012. In its written opinion and order, the court concluded
that “[b]y mandating that members contribute four per-
cent of their compensation to the employees’ savings fund,
the Legislature reduced the compensation of classified
civil servants—an act that is within the sphere of author-
ity vested in the [Commission].” The trial court disagreed
with defendants’ argument that the term compensation,
as used in art 11, § 5, meant only what employees are paid,
noninclusive of fringe benefits, and cited opinions of the
Attorney General that have held the term compensation
includes fringe benefits. The court concluded that requir-
ing members to pay four percent for a benefit that
formerly had cost them nothing was not equivalent to a
voluntary election to purchase service credit. The court
also found that 2011 PA 264 was not cloaked in the
legitimacy of the mandatory contribution provision of the
original SERA, which was the cooperative and collabora-
tive product of the Commission and the Legislature. By
contrast, there was no evidence of Commission input to or
approval of 2011 PA 264. The court concluded that, being
in conflict with Const 1963, art 11, § 5, 2011 PA 264 was
196 302 M
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void. Accordingly, the trial court denied defendants’ mo-
tion and granted plaintiffs’ motion for summary disposi-
tion.
The trial court held a hearing on defendants’ motion to
stay, but it denied the motion because the September 25,
2012 order was not a final order. Plaintiffs then moved for
partial summary disposition on the claim that MCL 38.1e
of 2011 PA 264 is unconstitutional because its pur-
ported change in the way overtime is calculated for
pension purposes constitutes a change in a condition of
employment that the Legislature made without the
Commission’s approval. Plaintiffs also sought volun-
tary dismissal without prejudice of any other claims
arising out of 2011 PA 264. At the motion hearing, the
trial court indicated that MCL 38.1e was unconstitu-
tional for the same reasons that applied to Sections 35a
and 50a and that “the point here is that the Civil
Service Commission has plenary authority to fix rates of
compensation and conditions of employment.” The
court reasoned that because “compensation includes
fringe benefits which includes pension benefits,” the
Legislature “cannot alter these rates of compensation
or conditions of employment without some form of
approval, consent, or input from the Civil Service
Commission.” The trial court granted summary dispo-
sition on the issue of the unconstitutionality of
MCL 38.1e “for the reasons stated on the record.”
II. ANALYSIS
A. ISSUE PRESERVATION AND STANDARD OF REVIEW
“[A]n issue is not properly preserved if it is not raised
before, addressed, or decided by the circuit court or
administrative tribunal.” Polkton Charter Twp v Pelle-
grom, 265 Mich App 88, 95; 693 NW2d 170 (2005). In
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this case, the trial court expressly decided that the
Legislature’s enactment of MCL 38.1e, MCL 38.35a,
and MCL 38.50a (changing the overtime calculation
and requiring DB members to switch to the DC plan or
to contribute 4 percent of their salaries to continue
membership in the DB plan) violated Const 1963, art
11, § 5. Plaintiffs’ other potential claims arising from
the legislation were dismissed without prejudice. Ac-
cordingly, the only issue before this Court is whether
the amendments to MCL 38.1e(1), MCL 38.35a, and
MCL 38.50a by 2011 PA 264 without the approval or
consent of the Commission violates Const 1963,
art 11, § 5. See Polkton Twp 265 Mich App at 95.
This case requires the review of a decision on a
motion for summary disposition, and also presents
questions of statutory and constitutional interpreta-
tion. This Court reviews de novo all of these matters.
AFSCME Council 25 v State Employees’ Retirement
Sys, 294 Mich App 1, 8; 818 NW2d 337 (2011).
When interpreting a constitutional provision, the pri-
mary goal is to determine the initial meaning of the
provision to the ratifiers, the people, at the time of ratifi-
cation. Nat’l Pride At Work, Inc v Governor, 481 Mich 56,
67; 748 NW2d 524 (2008). “[T]he primary objective of
constitutional interpretation, not dissimilar to any other
exercise in judicial interpretation, is to faithfully give
meaning to the intent of those who enacted the law.” Id.To
effectuate this intent, the appellate courts apply the plain
meaning of the terms used in the constitution. Toll North-
ville Ltd v Northville Twp, 480 Mich 6, 11; 743 NW2d 902
(2008). When technical terms are employed, the meaning
understood by those sophisticated in the law at the time of
enactment will be given unless it is clear that some other
meaning was intended. Id. To clarify the meaning of the
constitutional provision, the court may examine the cir-
cumstances surrounding the adoption of the provision and
the purpose sought to be achieved. Traverse City Sch Dist
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v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971).
An interpretation resulting in a holding that the provision
is constitutionally valid is preferred to one that finds the
provision constitutionally invalid, and a construction that
renders a clause inoperative should be rejected. Id. at 406.
Constitutional convention debates are relevant, albeit not
controlling.
[
3
]
Lapeer Co Clerk v Lapeer Circuit Court, 469
Mich 146, 156; 665 NW2d 452 (2003). Every provision in
our constitution must be interpreted in light of the docu-
ment as a whole, and “no provision should be construed to
nullify or impair another.” Id. “Statutes are presumed
constitutional unless the unconstitutionality is clearly ap-
parent.” Toll Northville Ltd, 480 Mich at 11. The court’s
power to declare a law unconstitutional is exercised with
extreme caution and is not exercised where serious doubt
exists regarding the conflict. Dep’t of Transp v Tomkins,
481 Mich 184, 191; 749 NW2d 716 (2008). [AFSCME
Council 25, 294 Mich App at 8-9.]
B. DISCUSSION
1. MCL
38.35a AND MCL 38.50a
The central question with regard to these provisions
of 2011 PA 264 is whether changing the nature of the
contribution-free retirement plan constitutes a change
in rate of compensation or a condition of employment.
To that end, defendants first argue that MCL 38.35a
and MCL 38.50a do not violate art 11, § 5 because in
1940, when the Commission was created, compensation
was not understood to include fringe benefits, in part
due to the fact that at that time pensions were a rarity.
We disagree.
3
Our Supreme Court has stated on this matter, “the Address to the
People and the constitutional convention debates may be highly relevant
in determining the meaning of particular constitutional provisions to the
ratifiers.” In re Request for Advisory Opinion Regarding Constitutional-
ity of 2011 PA 38, 490 Mich 295, 309 n 13; 806 NW2d 683 (2011).
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Defendants rely on Brown v Highland Park, 320
Mich 108; 30 NW2d 798 (1948) for support.
4
In Brown,
the Michigan Supreme Court determined that “a pen-
sion granted by public authorities is not a contractual
obligation, that the pensioner has no vested right, and
that a pension is terminable at the will of a municipal-
ity, at least while acting within reasonable limits.” Id.at
114. In short, it concluded that a retiree had no right to
enforce payment of pension benefits. Significantly, how-
ever, Brown’s holding does not directly address whether
the term compensation includes pension plans. Con-
trary to defendants’ rarity arguments, the defendant in
Brown had a pension provision in its city charter since
1918. Id. at 110. Additionally, Brown relied on Bowler v
Nagel, 228 Mich 434, 436, 442; 200 NW 258 (1924),
which upheld the pension plan enacted by Detroit for its
civil servants in 1923. Bowler identified a number of
cases upholding government service pension plans, in-
cluding United States v Hall, 98 US 343; 25 L Ed 180
(1878). In addition, the federal Civil Service Retirement
Act was enacted on May 22, 1920. PL 20-215, 41 Stat
614. Michigan enacted a teachers’ retirement system in
1915,
5
and by 1940 also had in place statutory schemes
for the retirement plans of firefighters and police offic-
ers, 1937 PA 345, and city library employees, 1927 PA
339. In sum, while Brown held that a retiree had no
right to receive pension benefits (unless provided for by
4
Brown was later superseded by Const 1963, art 9, § 24. Advisory
Opinion re Constitutionality of 1972 PA 258, 389 Mich 659, 662-663; 209
NW2d 200 (1973).
5
In Attorney General v Chisholm, 245 Mich 285, 291-292; 222 NW 761
(1929), the Supreme Court held that 1915 PA 174, which enacted the
teachers’ retirement system, had been repealed by 1927 PA 319, and that
even if repealment had been an unintended effect of the 1927 act, it was
up to the Legislature to correct it. Two months later, the Legislature
enacted another teachers’ retirement system, 1929 PA 5.
200 302 M
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contract), it in no way established that “pensions did
not generally exist” in 1940.
However, regardless of the meaning of the term
compensation in 1940, the issue before the Court today
is what was the common understanding of the citizens
who adopted the 1963 Constitution. Nat’l Pride At
Work, Inc, 481 Mich at 67 (noting that when interpret-
ing a constitutional provision, the primary goal is to
determine the initial meaning of the provision to the
ratifiers, the people, at the time of ratification). When
the 1963 Constitution was considered, SERA had been
in place for twenty years. In Kane v City of Flint, 342
Mich 74, 83; 69 NW2d 156 (1955), our Supreme Court
upheld the city’s authority to take into account the
additional retirement pension benefits granted fire-
fighters and police officers when the city created for its
employees a “like compensation” pay system that dif-
ferentiated the compensation of firefighters and police
officers from other city employees. The Court noted
that the applicable ordinance mandated that, “[l]ike
classifications of work are to receive like compensa-
tion,” and the plaintiff-firefighters argued that the pay
differential violated this requirement. Id. at 79. The
plaintiffs argued that compensation included only sala-
ries or wages. The Court disagreed with such a narrow
definition of the term compensation:
We do not agree with plaintiffs that charter retirement
pensions, insurance premium payments and the furnishing
of uniforms cannot be considered as “compensation.” Nor
is there merit to plaintiffs’ argument that such benefits,
admittedly still being received by the plaintiffs, cannot be
included as compensation on the ground that they are not
contractual and that the city can discontinue them. Con-
ceding that the city can legally discontinue retirement
pension benefits, group insurance and furnishing of uni-
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forms, these still are benefits while being received by the
firemen and policemen.[Id. at 80 (emphasis added).]
The Court then examined secondary authority and
concluded that pension benefits are part of the employ-
ees’ compensation. Id. at 80-81, citing Cyclopedic Law
Dictionary (3d ed), p 211, 3 McQuillin Municipal Cor-
porations (3d ed), pp 499-500, and Bowler, 228 Mich at
440-441. The Court reasoned:
The alternative, if these benefits which the plaintiffs
receive were not to be considered as being part of plaintiffs’
compensation, would seem to be that they would have to be
considered as gratuities. If that were true, it would follow
that the retirement pension plan here involved would be
ultra vires and void, the city lacking the power to pay
gratuities, under Bowler.[Kane, 342 Mich at 81.]
Kane did not purport to overrule Brown, and the
outcomes of the two cases are not in direct conflict.
Brown was concerned with paying benefits to pension-
ers; Kane dealt with the definition of the term compen-
sation in the context of current employees and whether
that included the existence of a pension system from
which future benefits might be paid. Additionally, Kane
specifically concluded that the city’s ability to legally
discontinue pension benefits did not render those ben-
efits outside the scope of compensation.
Indeed, more recent case law also supports the propo-
sition that an employee’s compensation includes fringe
benefits. In AFSCME Council 25, 294 Mich App at 26
n 3, this Court addressed the issue of “the validity of the
process of removing three percent of employee compen-
sation and directing it to retiree health care without
regard to Const 1963, art 11, § 5.” Consistent with
Kane, the Court defined compensation as “ ‘something
given or received for services, debt, loss, injury, etc.’ ”
Id. at 23, quoting Random House Webster’s College
202 302 M
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Dictionary (2001), p 271. Under Kane, an employer’s
provision of a pension plan to employees is a benefit
similar to insurance premium payments or uniforms.
Thus, if the employer changes the amount, nature, or
quality of that benefit, then the employer is changing
the amount, nature, or quality of compensation.
Moreover, defendants make no argument that the
nature of the pension plan is not within the definition of
“conditions of employment.” See Mt Clemens Fire
Fighters Union, Local 838, IAFF v City of Mt Clemens,
58 Mich App 635, 645; 228 NW2d 500 (1975) (holding
that in the labor law context “a change in the retire-
ment plan constitutes a change in conditions of employ-
ment”). Thus, whether it concerns “rates of compensa-
tion” or “conditions of employment,” the statutory
pension plan provisions may not be altered through
2011 PA 264 by the Legislature acting without the
approval of the Commission.
In sum, we conclude that the ratifiers in 1963 would
have considered rates of compensation to include fringe
benefits provided to civil service employees, and that
would include the pension plan offered as part of the
compensation package. Changing the nature of the plan
changes the nature of the benefit, and thus it amounts
to a change in the rate of compensation or in the
conditions of employment. This is within the authority
of the Commission, not the Legislature, and therefore
MCL 38.35a and MCL 38.50a are unconstitutional.
2. MCL 38.1e
MCL 38.1e, unlike MCL 38.35a and MCL 38.50a, ad-
dresses whether overtime pay is included in the defini-
tion of compensation. Before amendment, MCL 38.1e
computed “final average compensation” using the
yearly average of the employee’s highest three-
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consecutive-year compensation. In other words, the
total of earnings in whatever three-year period in which
the employee earned the most was divided by three to
arrive at the average annual compensation for that
period. Under 2011 PA 264’s amendment, this part of
the calculation remains the same, but now overtime is
treated differently. Instead of looking at the three
highest-paid consecutive years for overtime, the calcu-
lation looks back six years and averages the overtime
for that period.
We conclude that because MCL 38.1e—like
MCL 38.35a and MCL 38.50a—makes a change to a
fringe benefit, it improperly invades the authority of
the Commission and therefore is unconstitutional.
Mandatory subjects of collective bargaining are those
concerning “wages, hours, and other terms and condi-
tions of employment.” MCL 423.215(1). The phrase
“wages, hours, and other terms and conditions of em-
ployment” is comparable to the “rates of compensation”
and “all conditions of employment” over which the
Commission has plenary authority. Const 1963, art 11,
§5;Womack-Scott v Dep’t of Corrections, 246 Mich App
70, 79; 630 NW2d 650 (2001). Thus, we conclude that
the calculation of pension benefits is within the author-
ity of the Commission, not the Legislature.
We agree with defendants that the Commission’s
authority over legislation affecting state employees is
not unlimited, and that “there have been many statutes
found constitutional when they affected State civil
service employees despite of the Commission’s author-
ity under article 11, § 5.” For example, defendant notes
that the Civil Rights Commission has authority over the
same state employees regarding issues of discrimina-
tion, Dep’t of Civil Rights ex rel Jones v Dep’t of Civil
Serv, 101 Mich App 295; 301 NW2d 12 (1980); that
204 302 M
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“compensation,” as used in art 11, § 5 does not include
the disability compensation included in MCL 330.1113,
Oakley v Dep’t of Mental Health (On Remand), 136
Mich App 58; 355 NW2d 650 (1984); and that other
statutes affecting civil service workers are constitu-
tional, Dep’t of Transp v Brown, 153 Mich App 773; 396
NW2d 529 (1986), Walters v Dep’t of Treasury, 148 Mich
App 809; 385 NW2d 695 (1986), and Marsh v Civil Serv
Dep’t, 142 Mich App 557; 370 NW2d 613 (1985). How-
ever, 2011 PA 264 is distinguishable from the types of
legislation validated in the Jones, Walters, Marsh, Oak-
ley, and Dep’t of Transp cases cited by defendants,
because the legislation at issue in those cases concerned
laws applicable to all employers, public and private. The
role of the state in those cases was that of “employer,”
and in the context of taxes, civil rights, and occupa-
tional safety, the employer of civil servants is treated in
large part like any other employer. However, the Legis-
lature cannot control the specific terms of a private
employer’s retirement plan (nor that of a public em-
ployer at the municipal or county level). Legislation
that attempts to exercise that kind of control over state
employees would seem to usurp the power the ratifiers
intended to give the Commission.
3. SEVERABILITY AND THE DISPOSITION OF THE CASE
Relying on AFSCME Council 25, 294 Mich App at 29,
the trial court concluded that 2011 PA 264 unconstitu-
tionally conflicted with Const 1963, art 11, § 5, and
declared it void. But ASFCME Council 25 did not
declare an entire public act unconstitutional. In In re
Request for Advisory Opinion Regarding Constitution-
ality of 2011 PA 38, 490 Mich at 345-349, the Michigan
Supreme Court addressed the severability of the parts
of 2011 PA 38 it found unconstitutional. There, as here,
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the public act contained no express severability clause.
Accordingly, the Court applied the severability provi-
sion of MCL 8.5, which states, in relevant part:
If any portion of an act or the application thereof to any
person or circumstances shall be found to be invalid by a
court, such invalidity shall not affect the remaining por-
tions or applications of the act which can be given effect
without the invalid portion or application, provided such
remaining portions are not determined by the court to be
inoperable, and to this end acts are declared to be sever-
able.
The Supreme Court acknowledged this when it “recog-
nized that it is the law of this State that if invalid or
unconstitutional language can be deleted from an ordi-
nance and still leave it complete and operative then
such remainder of the ordinance be permitted to
stand.” In re Request for Advisory Opinion Regarding
Constitutionality of 2011 PA 38, 490 Mich at 345 (quo-
tation marks, brackets, and citation omitted). Accord-
ingly, it struck from the act only the language found to
be in contravention of the Constitution. Id. at 347-349.
In the instant case, the act includes amendments to
other provisions in SERA that refer to the unconstitu-
tional sections. However, the parties have not given
guidance regarding the validity of specific language that
might be struck from 2011 PA 264 while preserving the
remainder. Accordingly, we reverse the trial court’s
determination that 2011 PA 264 is void in its entirety
and remand the case to the trial court for a determina-
tion regarding the severability of the remaining por-
tions of 2011 PA 264. Specifically, we remand for a
determination regarding whether additional portions of
the act must be deleted in light of this opinion, and if so,
whether such deletions “still leave [2011 PA 264] com-
plete and operative” and thus permitted to stand. In re
206 302 M
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Request for Advisory Opinion Regarding Constitution-
ality of 2011 PA 38, 490 Mich at 345 (quotation marks
and citation omitted).
Affirmed in part, reversed in part, and remanded to
the trial court for further proceedings consistent with
this opinion. We do not retain jurisdiction. No costs, a
public question being involved.
O
WENS
,P.J., and G
LEICHER
and S
TEPHENS
, JJ., con-
curred.
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TYRA v ORGAN PROCUREMENT AGENCY OF MICHIGAN
Docket No. 298444. Submitted April 4, 2013, at Detroit. Decided August 15,
2013, at 9:00 a.m. Leave to appeal sought.
Lisa Tyra filed an action against Organ Procurement Agency of
Michigan, Stephen Cohn, M.D., William Beaumont Hospital, Dillip
Samara Pungavan, M.D., and John Doe in the Oakland Circuit
Court, alleging medical malpractice. Plaintiff sent notices of intent
to defendants pursuant to MCL 600.2912b, and filed her complaint
112 days later, rather than waiting the 182 or more days required
by MCL 600.2912b(1). Defendants filed a motion for summary
disposition, claiming that the action should be dismissed with
prejudice because plaintiff had prematurely filed her complaint
and the limitations period had expired. Plaintiff argued that
defendants had waived the notice-period affirmative defense be-
cause their responsive pleading had failed to put her on notice that
she had failed to comply with the requirement. The trial court,
Nanci J. Grant, J., granted defendants summary disposition,
concluding that defendants’ failure to provide detailed facts con-
cerning the affirmative defense did not waive the defense. Plaintiff
appealed.
The Court of Appeals held:
1. MCR 2.111(F) provides that a defendant waives any affir-
mative defense not set forth in the defendant’s first responsive
pleading. MCR 2.111(F)(3) requires the party to state the facts
constituting the affirmative defense raised to provide the opposing
party with sufficient facts to permit that party to take a responsive
position. A plaintiff’s failure to comply with the MCL 600.2912b
procedural prerequisites for commencing a medical malpractice
action constitutes an affirmative defense that must be raised by a
defendant in the first responsive pleading to avoid waiver under
MCR 2.111(F). In this case, defendants’ statements that (1)
plaintiff failed to comply with the notice provisions of MCL
600.2912b, and (2) the action was time-barred, were insufficient to
raise the affirmative defense of failure to comply with the notice
period; defendants failed to provide an adequate statement of facts
in support of the affirmative defense. Had plaintiff’s action not
208 302 M
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been dismissed for other reasons, under MCR 2.111(F), defendants
would have waived the affirmative defense.
2. MCL 600.2912b provides that a plaintiff must provide to a
health professional or health facility defendant written notice of
intent to commence suit in a medical malpractice action 182 or
more days before filing the complaint. Under MCL 600.5856(d),
the two-year period of limitations for medical malpractice actions
is tolled during the notice period if notice is given in compliance
with MCL 600.2912b. The Supreme Court’s rulings in Burton v
Reed City Hosp Corp, 471 Mich 745; 691 NW2d 424 (2005) and
Auslander v Chernick, 480 Mich 910; 739 NW2d 620 (2007) are
binding; regardless of whether the defendants were prejudiced,
plaintiff’s medical malpractice complaint, which was filed prior to
the expiration of the MCL 600.2912b waiting period, did not
commence an action that tolled the running of the two-year
statute of limitations pursuant to MCL 600.5856(a).
3. Under MCL 600.2301, the court in which any action or
proceeding is pending, has the power to allow the amendment of
any pleading or proceeding in such action or proceeding so long as
the amendment was in the interests of justice and did not affect
the substantial rights of the other party. The power to amend
pleadings or proceedings under MCL 600.2301 applies to the entire
notice process of MCL 600.2912b(1). In this case, the trial court
erred by granting summary disposition in favor of defendants
because it had discretion to allow plaintiff to amend her complaint
so as to comply with the MCL 600.2912b(1) notice requirements.
Although plaintiff’s prematurely filed complaint did not com-
mence an action for purposes of MCL 600.2912b, the proceeding
was underway because plaintiff had properly filed the notice of
intent. Because the proceeding was underway, the trial court had
discretion under MCL 600.2301 to allow plaintiff to amend the
filing date of her complaint and affidavit of merit to comply with
MCL 600.2912b(1).
Reversed and remanded for further proceedings.
W
ILDER
,P.J., dissenting, would have affirmed the trial court
order granting summary disposition in favor of defendants on the
basis, that because plaintiff prematurely filed her complaint, the
action was not properly commenced and the malpractice period of
limitation was not tolled. He also would have concluded that
defendants did not waive their affirmative defense that the action
was not properly commenced because the issue of a plaintiff failing
to comply with MCL 600.2912b can be raised irrespective of
whether the defendant properly asserts it. Judge W
ILDER
would
have held that plaintiff’s complaint could not be amended under
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MCL 600.2301 because a proceeding is not pending in the court;
the limitations period expired without commencement of a medical
malpractice action because plaintiff filed her complaint prema-
turely.
Mark Ganzotto, P.C. (by Mark Granzotto) and Cutler
& Cutler PLLC (by Donald M. Cutler), for Lisa Tyra.
Lipson, Neilson, Cole, Seltzer & Garin, PC (by Karen
A. Smyth and Mark E. Phillips), for Organ Procurement
Agency of Michigan.
O’Connor, DeGrazia, Tamm & O’Connor, PC (by
Julie McCann O’Connor and Richard M. O’Connor), for
Dr. Steven Cohn and William Beaumont Hospital.
Before: W
ILDER
,P.J., and S
TEPHENS
and R
ONAYNE
K
RAUSE
,JJ.
R
ONAYNE
K
RAUSE
, J. In this medical malpractice ac-
tion, plaintiff appeals as of right the trial court’s grant
of summary disposition in favor of defendants pursuant
to MCR 2.116(C)(7). Plaintiff’s action arose out of a
kidney transplant; she suffered injury because the
kidney was not properly checked for a “cross-match”
prior to transplantation, and it was subsequently dis-
covered that there was a positive match. Plaintiff sent
notices of intent to defendants pursuant to MCL
600.2912b, but filed her complaint 112 days later in-
stead of waiting 182 days or more as required by
statute, MCL 600.2912b(1). Although the trial court
otherwise reached the only result possible under the
currently binding caselaw precedent, the trial court
erred by failing to afford plaintiff an opportunity to
pursue the possibility of amending the filing date of the
complaint pursuant to MCL 600.2301. We therefore
reverse and remand.
210 302 M
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Plaintiff received her kidney transplant on June 9,
2007. On April 23, 2009, she sent defendants notices of
intent to file a claim, pursuant to MCL 600.2912b.
Plaintiff filed the complaint on August 13, 2009. Con-
sequently, plaintiff filed her complaint 112 days after
serving the notices of intent, rather than at the end of
the 182-day period called for by MCL 600.2912b(1).
Defendants do not, at least for purposes of the instant
motion proceedings, dispute the propriety and suffi-
ciency of the notices of intent. Defendants eventually
filed a motion for summary disposition on the theory
that because plaintiff had failed to wait either the full
182-day period or the shortened 154-day period permit-
ted if a defendant failed to respond to a notice of intent,
MCL 600.2912b(1) and (8), plaintiff’s complaint was
insufficient to commence the action. Because the limi-
tations period had expired by then, defendants argued
that dismissal must be with prejudice. Plaintiff con-
tended that because defendants’ responsive pleadings
asserting their affirmative defenses failed to set forth
sufficient facts to put plaintiff on notice that she had
failed to comply with the notice-period requirement,
defendants had waived that affirmative defense pursu-
ant to MCR 2.111(F). The trial court, relying on Burton
v Reed City Hosp Corp, 471 Mich 745; 691 NW2d 424
(2005), concluded that the failure to provide detailed
facts constituting the affirmative defense did not waive
the defense. The trial court therefore granted summary
disposition in favor of defendants, and this appeal
followed.
A grant or denial of summary disposition is reviewed
de novo on the basis of the entire record to determine if
the moving party is entitled to judgment as a matter of
law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d
817 (1999). Under MCR 2.116(C)(7), where the claim is
allegedly barred, the trial court must accept as true the
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contents of the complaint, unless they are contradicted
by documentary evidence submitted by the moving
party. Id. at 119. This Court likewise reviews de novo
questions of statutory construction, with the funda-
mental goal of giving effect to the intent of the Legis-
lature. Weakland v Toledo Engineering Co, Inc, 467
Mich 344, 347; 656 NW2d 175, amended on other
grounds 468 Mich 1216 (2003). This Court may not
depart from the literal language of an unambiguous
statute merely because the result would be absurd,
People v McIntire, 461 Mich 147, 155-156, n 2; 599
NW2d 102 (1999), but if it proves necessary to interpret
ambiguous language, then an absurd or unjust result
should be avoided to the extent possible. See Rafferty v
Markovitz, 461 Mich 265, 270; 602 NW2d 367 (1999).
Interpretation of a court rule follows the general rules
of statutory construction. Grievance Administrator v
Underwood, 462 Mich 188, 193-194; 612 NW2d 116
(2000).
It has essentially always been the rule in Michigan
that defendants must “apprise the plaintiff of the
nature of the defense relied upon, so that he might be
prepared to meet, and to avoid surprise on the trial.”
Rosenbury v Angell, 6 Mich 508, 513 (1859). Today,
MCR 2.111(F) provides that a defendant waives any
affirmative defense not set forth in the defendant’s first
responsive pleading. Electrolines, Inc v Prudential As-
surance Co, Ltd, 260 Mich App 144, 164; 677 NW2d 874
(2003). An affirmative defense presumes liability and
accepts a plaintiff’s prima facie case, but asserts that
the defendant is not liable for other reasons not set
forth in the plaintiff’s pleadings. Citizens Ins Co of
America v Juno Lighting, Inc, 247 Mich App 236, 241;
635 NW2d 379 (2001). We hold that failure to comply
with purely procedural prerequisites for commencing a
212 302 M
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medical malpractice action is therefore an affirmative
defense that must be raised to avoid waiver under MCR
2.111(F).
We note, however, that although Electrolines, Inc did
not so mention, affirmative defenses are not necessarily
waived by failing to state them in a first responsive
pleading at the time that pleading is originally filed.
Pursuant to MCR 2.111(F)(3), “[a]ffirmative defenses
must be stated in a party’s responsive pleading, either
as originally filed or as amended in accordance with
MCR 2.118” (emphasis added). Likewise, a defense “not
asserted in the responsive pleading or by motion as
provided by these rules is waived....”MCR2.111(F)(2)
(emphasis added). Although affirmative defenses are
not “pleadings,” McCracken v City of Detroit, 291 Mich
App 522, 528; 806 NW2d 337 (2011), the court rules
unambiguously permit them to be amended in the same
manner as pleadings. This is noteworthy in part be-
cause the practice of filing “boilerplate” affirmative
defenses consisting of generic, unsupported, bald asser-
tions of every conceivable affirmative defense irrespec-
tive of, and possibly even contrary to, any known facts
is not only unnecessary, but wasteful, counterproduc-
tive, and in some instances possibly even contrary to
MCR 2.114(D). Rather, a defendant may move to amend
their affirmative defenses to add any that become
apparent at any time, and any such motion should be
granted as a matter of course so long as doing so would
not prejudice the plaintiff. See MCR 2.118(A)(2).
Furthermore, MCR 2.111(F)(3) requires that the
party “must state the facts constituting” any affirmative
defense so raised (emphasis added). The purpose of this
requirement is to provide the opposing party with
sufficient notice of the alleged affirmative defenses to
permit that party to take a responsive position, and a
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stated affirmative defense that does so will not be
deemed insufficient. Hanon v Barber, 99 Mich App 851,
856; 298 NW2d 866 (1980). However, “[j]ust as the
plaintiff must plead something beyond a general the
‘defendant injured me,’ the defendant must plead some-
thing more specific than, ‘I deny I’m liable.’ ” Stanke v
State Farm Mut Auto Ins Co, 200 Mich App 307, 318;
503 NW2d 758 (1993). Put another way, a statement of
an affirmative defense must contain facts setting forth
why and how the party asserting it believes the affir-
mative defense is applicable.
In this case, one group of defendants presented a list
of affirmative defenses that, in relevant part, stated,
“Plaintiff failed to comply with the notice provisions of
MCL 600.2912b; MSA 27A.2912b and that Plaintiff’s
action is thus barred; Defendant gives notice that it will
move for summary disposition.” The other group of
defendants did not even mention MCL 600.2912b at all.
The latter group seems to assert that their affirmative
defenses were sufficient because another defendant’s
affirmative defenses were sufficient. The former group
of defendants asserts that their affirmative-defense
statement was sufficient because the “notice provisions
of MCL 600.2912b” include the waiting period—which
is described as a “notice period” in the statute. We
disagree with both assertions. The affirmative defenses
presented in this case were not sufficient to raise the
affirmative defense of failure to comply with the notice
period; consequently, that affirmative defense should be
deemed waived.
1
1
As the dissent notes, and as we discuss later, our Supreme Court in
Auslander v Chernick, 480 Mich 910; 739 NW2d 620 (2007), stated its
approval of a dissent in an unpublished opinion of this Court and held
that a defendant may raise the MCL 600.2912b notice-period defense,
irrespective of their failure to comply with the plain and unambiguous
requirements of MCR 2.111, because MCR 2.111 does not apply if the
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MCL 600.2912b(4) specifically addresses “the notice
given to a health professional or health facility.” An
ordinary reading of the affirmative defense alongside the
statute could reasonably induce a reader to believe that
plaintiff’s only alleged violation of MCL 600.2912b—
specifically, the “notice provisions” thereof—pertained to
the notice itself, as distinct from the notice period. It is
true that “the primary function of a pleading in Michigan
is to give notice of the nature of the claim or defense
sufficient to permit the opposite party to take a responsive
position.” Stanke, 200 Mich App at 317, citing 1 Martin,
Dean & Webster, Michigan Court Rules Practice, p 186.
Therefore, by extension to other filings, the statement of
facts required under MCR 2.111(F) is not extensive or
detailed. However, the statement here is merely a conclu-
sion, not even a vague statement of “facts constituting”an
affirmative defense. MCL 2.111(F)(3). The statement fails
to explain why defendants believed plaintiff “failed to
comply with the notice provisions of MCL 600.2912b.”
Rather, it is merely the equivalent of a plaintiff baldly
stating that the “defendant breached the standard of
care” and leaving it at that.
A plaintiff may move for a more definite statement if
the statement is vague or ambiguous. MCR 2.115(A).
Plaintiff did not at that time move to strike any
affirmative defenses as insufficient or request more
lawsuit was not properly commenced. We and the trial court are bound by
that decision; the waiver here is, therefore, of no practical legal effect.
However, we are concerned that while an attorney owes no specific duty
to opposing counsel or parties, Trepel v Pontiac Osteopathic Hosp, 135
Mich App 361, 383; 354 NW2d 341 (1984), deeming such a waiver
irrelevant will impair our overall public policy of preferring to resolve
disputes on the merits instead of technicalities. See Huggins v MIC Gen
Ins Corp, 228 Mich App 84, 86; 578 NW2d 326 (1998) (noting that while
determining issues on their merits is generally favored, the decision
whether to set aside a default is within the trial court’s discretion).
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detail. However, a failure to move for a more definite
statement is not proof that the filing was adequate to
begin with. See Dacon v Transue, 441 Mich 315, 334-
335 n 20; 490 NW2d 369 (1992). Consequently, failing to
move to strike or for a more definite statement does not
establish the sufficiency of the affirmative defenses as
filed.
2
This is particularly the case where a party
somehow induces the other party to believe that doing
so is unnecessary. See Hill v Freeman, 117 Mich App
788, 792-793; 324 NW2d 504 (1982). Failing to move for
a more definite statement may mean that the other
party was not confused, but it may also mean that the
other party was so confused that it was not aware that
it was confused. In this case, the affirmative-defense
statement as written, without reference to a factual
basis, or even to a correctly specific portion of the
statute, naturally leads to the conclusion that the stated
affirmative defense was alleging that the notice itself
was deficient. A statement likely to induce a party to
take a responsive position that is unrelated to what the
party now claims to have meant is not, in any meaning-
ful sense, sufficient.
Because defendants failed to provide any, let alone a
comprehensible or adequate, statement of facts sup-
porting the relevant affirmative defense, we find the
affirmative-defense statement by the defendants insuf-
ficient to raise the affirmative defense of plaintiff’s
failure to comply with the notice-period requirement of
2
As noted, it is apparently standard practice to file borderline-
nonsensical boilerplate lists of possible affirmative defenses with little, if
any, anticipation that most of them have the slightest factual basis.
Deeming them adequate unless challenged would unleash a wasteful
avalanche of equally pro forma challenges and, quite possibly, sanctions.
Furthermore, it may be impossible for a party to determine which bare
assertions of affirmative defenses might have any merit in the absence of
meaningful supporting facts offered for any of them.
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MCL 600.2912b. Under a plain application of MCR
2.111(F), the affirmative defense would be waived.
Defendants alternatively argue that the trial court
constructively granted leave to amend their affirmative
defenses by considering the merits of defendants’ asser-
tions that plaintiff failed to comply with MCL
600.2912b. As discussed, a party may amend filings as
long as doing so will not prejudice the opposing party.
MCR 2.118; MCL 600.2301; Stanke, 200 Mich App at
321. The record discloses no reason why the trial court
could not have permitted defendants to amend their
affirmative defenses at any time before it became “too
late” for plaintiff to correct her error. However, there is
no indication that the trial court or the parties believed
that any amendment transpired. Defendants’ reliance
on Cole v Ladbroke Racing Mich, Inc, 241 Mich App 1;
614 NW2d 169 (2000), is misplaced, because in that
case, the trial court explicitly “recognized that [the]
defendant needed the court’s permission to assert the
affirmative defense, and then stated, ‘Let’s go ahead’ ”
and heard the motion on the basis of that defense. Id.at
9. Consequently, the trial court in Cole engaged in overt
action that constructively granted leave to amend. We
do not believe that in this case the trial court’s actions
should be justified after the fact because of the theo-
retical existence of an alternative course of action the
trial court could have taken but did not in any way
suggest that it actually did. In any event, amendment of
defendants’ affirmative defenses after the expiration of
the limitations period unambiguously worked to the
prejudice of the other party and therefore would not
have been permissible. MCR 2.118(A)(2).
However, defendants also argue that even if their
affirmative defenses were insufficient, summary dispo-
sition was nevertheless warranted because, ultimately,
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plaintiff’s complaint, which was filed before the 182-day
notice period mandated by MCL 600.2912b(1) had
elapsed, simply failed to commence the action. There-
fore, the trial court had no other alternative to dismiss-
ing the action. Under the current state of binding case
law, we are compelled to agree.
In Auslander v Chernick, unpublished opinion per
curiam of the Court of Appeals, issued May 1, 2007
(Docket No. 274079), the plaintiffs failed to file an
affidavit of merit with their medical malpractice com-
plaint. The defendants’ affirmative defenses included
statements that the plaintiffs’ claim was “ ‘barred by
the statute of limitations as it applies to malpractice
actions’ ” and that the plaintiffs’ affidavit of merit
“ ‘fail[ed] to meet the requirements of MCL
§600.2912a; MCL §600.2912d, and other provisions as
set forth in the Tort Reform Acts of 1993 and 1995.’ ”
The defendants moved for summary disposition after
the expiration of the limitations period, arguing that
the plaintiffs had failed to file affidavits of merit with
the complaint. The Plaintiffs responded that the defen-
dants had waived any such defense because the defen-
dants had not stated the facts forming the basis for that
affirmative defense in compliance with MCR 2.111(F).
The trial court agreed and concluded that if strict
compliance was required of the plaintiffs, it was also
required of the defendants, and so it denied the motion
for summary disposition.
A majority of a panel of this Court affirmed. However,
in a dissenting opinion, Judge J
ANSEN
stated,
I fully acknowledge that a defendant must raise certain
defenses in its first responsive pleading, and that a failure
to do so may result in the waiver of those defenses. See
MCR 2.111(F)(2); MCR 2.111(F)(3). However, I conclude
that [the] defendants were never required to raise or plead
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their asserted defenses in the first instance because this
medical malpractice action was never properly commenced.
[The] [p]laintiffs’ claims arose, at the latest, at the time
of the myocardial infarction in March 2003. “[T]he mere
tendering of a complaint without the required affidavit of
merit is insufficient to commence [a medical malpractice]
lawsuit,” and therefore does not toll the two-year period of
limitations. Scarsella v Pollak, 461 Mich 547, 549-550; 607
NW2d 711 (2000). In this case, plaintiffs wholly omitted to
file the requisite affidavits of merit, and their complaint of
September 2004 was therefore insufficient to toll the
limitations period. Id. Regardless whether [the] defendants
properly raised and preserved the statute-of-limitations
and affidavit-of-merit defenses in their first responsive
pleading, the period of limitations was not tolled by [the]
plaintiffs’ complaint, and [the] plaintiffs’ claims were al-
ready time-barred at the time of the circuit court’s ruling.
Id. at 553. I would reverse and remand for dismissal with
prejudice of [the] plaintiffs’ claims. MCR 2.116(C)(7);
Scarsella, [461 Mich] at 551-552.
On appeal, our Supreme Court reversed “for the rea-
sons stated in the Court of Appeals dissenting opinion.”
Auslander v Chernick, 480 Mich 910; 739 NW2d 620
(2007). Orders from our Supreme Court constitute
binding precedent to the extent they can be understood
as having a holding based on discernible facts and
reasoning. Evans & Luptak, PLC v Lizza, 251 Mich App
187, 196; 650 NW2d 364 (2002). Our Supreme Court’s
order of reversal in Auslander can be understood as
adopting the reasoning of the dissenting opinion from
this Court in that case, and that dissent consequently
constitutes binding precedent despite originally having
been unpublished and not binding pursuant to MCR
7.215(C)(1).
This conclusion appears to do violence to what oth-
erwise appears to be the plain and unambiguous re-
quirements of the court rule. It is especially concerning
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because there is no indication that defendants suffered
any actual prejudice. Conversely, had defendants actu-
ally articulated the fact that plaintiff had filed a prema-
ture complaint in their affirmative defenses, plaintiff
would have still been able to correct the deficiency by
filing a properly timed complaint. Rather, defendants
only articulated the prematurity after the limitations
period had expired. Consequently, permitting defen-
dants to utilize this affirmative defense despite failing
to comply with the clear and mandatory requirement of
MCR 2.111(F) that they state the facts constituting that
defense, encourages gamesmanship and resolution of
cases on the basis of technicalities that harmed no
party, rather than on any merits whatsoever. Neverthe-
less, this Court is bound to follow holdings of our
Supreme Court. People v Mitchell, 428 Mich 364, 369-
370; 408 NW2d 798 (1987). Notwithstanding the plain
language of the court rule, a plaintiff’s failure to comply
with MCL 600.2912b remains available as a defense to
a defendant irrespective of whether the defendant prop-
erly asserts it.
Pursuant to MCL 600.2912b, a medical malpractice
action cannot be commenced unless the plaintiff first
provides to health professional or health facility defen-
dants a written notice of intent to commence suit and
then waits 182 days before filing the complaint.
Burton, 471 Mich at 751. “MCL 600.5856(d) provides
that the two-year period of limitations for medical
malpractice actions is tolled during the notice period
if notice is given in compliance with MCL 600.2912b.”
Id. at 752. Generally, the statute of limitations is then
further tolled pursuant to MCL 600.5856(a) by the
filing of a complaint and affidavit of merit. Kirkaldy v
Rim, 478 Mich 581, 585; 734 NW2d 201 (2007). Pursu-
ant to Burton, 471 Mich at 751-756, a medical malprac-
tice complaint filed prior to the expiration of the
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MCL 600.2912b waiting period does not commence the
action and does not toll the running of the limitations
period pursuant to MCL 600.5856(a). The Burton Court
further held that whether a defendant was prejudiced
was immaterial. Id. at 753. Plaintiff’s argument is
essentially that Burton is no longer entirely “good law”
in this latter respect.
Burton relied to some extent on analogous reasoning
in Scarsella, wherein the Court had “concluded that the
filing of a complaint without the required affidavit of
merit was insufficient to commence the lawsuit.” Bur-
ton, 471 Mich at 752, citing Scarsella, 461 Mich at 549.
The Court in Burton went on to state that “[t]he filing
of a complaint before the expiration of the statutorily
mandated notice period is no more effective to com-
mence a lawsuit than the filing of a complaint without
the required affidavit of merit.” Burton, 471 Mich at
754. The Court further relied on Roberts v Mecosta Co
Gen Hosp, 466 Mich 57, 66-68; 642 NW2d 663 (2002),
which held that complete compliance with MCL
600.2912b was mandatory before the limitations period
would be tolled. Burton, 471 Mich at 753.
As applied to the instant case, because plaintiff’s
prematurely filed complaint did not toll the running of
the limitations period, that period eventually expired.
Defendants moved for summary disposition after that
expiration. However, because the limitations period had
expired, plaintiff could not refile and the dismissal was
with prejudice.
Plaintiff argues that the relevant portion of Roberts
on which Burton relied was subsequently overruled
when our Supreme Court later concluded that, on the
basis of subsequent legislative changes, a defective
notice of intent would toll the running of the statute of
limitations. Bush v Shabahang, 484 Mich 156, 170 n 26;
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772 NW2d 272 (2009). Our Supreme Court also ex-
plained that because MCL 600.2912b was intended to
promote settlement and reduce costs of litigation, fail-
ure to comply with the statute was not per se a basis for
dismissal with prejudice. Id. at 174-175, citing Senate
Legislative Analysis, SB 270, August 11, 1993, and
House Legislative Analysis, HB 4403 to 4406, March 22,
1993. Finally, the Court explained that notices of intent
could be amended pursuant to MCL 600.2301. Id.at
176-178.
Plaintiff contends that because Burton analogized
a prematurely filed complaint to a defective notice of
intent, which at the time was held not to toll the
limitations period but now is deemed to toll the
limitations period, a prematurely filed complaint
should likewise be deemed to toll the limitations
period, at least until such time as it is successfully
challenged. See, by analogy, Kirkaldy, 478 Mich at
586 (holding that a defective affidavit of merit tolls
the limitations period until it is successfully chal-
lenged). We are unaware of any readily apparent
reason why a defective affidavit of merit or a defective
notice of intent are sufficient to toll a limitations
period but a defective complaint is not. Furthermore,
it appears to us that our Supreme Court rejected the
plain language of MCL 600.5856(a) in Burton, 471
Mich at 752-754. MCL 600.5856(a) explicitly states
that the limitations period is tolled, “[A]t the time the
complaint is filed,” not “when the claim is com-
menced” or “when the complaint is properly and/or
timely filed.” A prematurely filed complaint could
not, in the words of MCL 600.2912b, “commence an
action;” however, nothing in MCL 600.2912b prohib-
its filing a complaint, and nothing in MCL
600.5856(a) concerns itself with the propriety of the
complaint or whether the action has actually been
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commenced. Indeed, MCL 600.2912b(3)(c) explicitly
draws a distinction between “fil[ing] a complaint” and
“commenc[ing] an action.”
However, regardless of our Supreme Court’s reasoning,
Burton has not been overturned. Even if the underpin-
nings of the relevant holding have been eviscerated, the
case itself remains binding. This Court has no power or
authority to disregard the plain holding of a decision by
our Supreme Court merely because that holding no longer
seems valid; only our Supreme Court can do that. Mitch-
ell, 428 Mich at 369-371. Moreover, citing to Burton, our
Supreme Court recently reaffirmed that “when a plaintiff
fails to strictly comply with the notice waiting period
under MCL 600.2912b, his or her prematurely filed com-
plaint fails to commence an action that tolls the statute of
limitations.” Driver v Naini, 490 Mich 239, 256; 802
NW2d 311 (2011).
3
Irrespective of the language used in
the relevant statutes, it therefore remains binding
precedent that a prematurely filed complaint does not
commence a medical malpractice action or toll the
running of the limitations period.
Nevertheless, plaintiff argues that she should be
permitted to amend her complaint pursuant to prece-
dent from this Court. In Zwiers v Growney, 286 Mich
App 38; 778 NW2d 81 (2009), the plaintiff inadvertently
filed her complaint and affidavit of merit 181 days after
serving her notice of intent, rather than the required
182 days. The record in that case revealed that the
plaintiff’s counsel had done so in good faith and purely
by accident, and the prematurity had absolutely no
3
Driver involved an untimely notice of intent given to a nonparty the
plaintiffs sought to add as a party after the limitations period had
expired; the plaintiffs sought to amend the notice to date back to the
timely notice they had provided to the other defendants. Our Supreme
Court held that the plaintiffs could not do so because the claim was
already time-barred as to the nonparty the plaintiffs sought to add.
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adverse effect on the defendants or on any of the
purposes MCL 600.2912b was intended to accomplish,
e.g., it did not increase costs or interrupt settlement
negotiations. Id. at 41, 49-51. This Court concluded that
dismissing the case “would fly directly in the face of the
Legislature’s intent to have injured parties receive
compensation for meritorious claims.” Id. at 49. In
reliance on Bush, this Court concluded that, because no
substantial right of the defendants was affected and
resolving the matter on its merits was in the interests of
justice, and because MCL 600.2301 was applicable to
the entire notice process, see Bush, 484 Mich at 176-
178, the plaintiff was entitled to amend the filing date
of the complaint and affidavit of merit pursuant to MCL
600.2301.
In Driver, 490 Mich at 254, our Supreme Court
explained that “MCL 600.2301 only applies to actions or
proceedings that are pending.” Although an untimely
complaint cannot commence an action, the proceedings
here are underway. In Driver, the plaintiffs were barred
from the initial step of the proceedings of filing the
notice of intent, whereas here, there is no dispute that
the notice of intent was proper. The dissent apparently
concludes that MCL 600.2301 cannot apply because no
action was underway. We disagree: MCL 600.2301 can-
not be used to create a filing out of whole cloth, but no
such bootstrapping would occur here, where all the
requisite documents actually exist. In any event, MCL
600.2301 merely affords plaintiff the opportunity to
make an argument. We see no value in attempting, on
this record, to determine whether defendants’ substan-
tial rights would truly be invaded if they are ultimately
required to address the merits of the claim instead of
relying on legal technicalities to avoid doing so. As we
discuss, whether amendment would further the inter-
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ests of justice or prejudice defendants is a question to be
put to the trial court’s discretion on remand.
Notably, the applicability of Zwiers to the instant
case is unclear. Most glaringly, the plaintiff in Zwiers
filed an action that was prematurely filed by a single
day, whereas here, the prematurity was 70 days. Defen-
dants correctly point out that plaintiff’s complaint was
too soon even for the shortened 154-day period afforded
to medical malpractice defendants to provide a written
response to the plaintiff. MCL 600.2912b(7). A plaintiff
may commence suit immediately upon the expiration of
those 154 days if the defendant has failed to provide
that written response. MCL 600.2912b(8). It is not clear
from the record whether any of the defendants filed
such a response; nevertheless, plaintiff’s prematurity in
this case is vastly more egregious than that in Zwiers.
Again, the present record simply does not provide us
with any basis for evaluating whether defendants’ sub-
stantial rights were actually affected by the premature
filing. See Zwiers, 286 Mich App at 50-51.
The record likewise does not show whether plaintiff
made a good-faith attempt to comply with MCL
600.2912b. See Bush, 484 Mich at 178. It can reason-
ably be presumed that very few attorneys would delib-
erately scuttle a client’s case. Furthermore, there is no
indication in the record that plaintiff’s attorney filed
the complaint prematurely on the belief that doing so
would achieve some manner of tactical advantage. In
short, the record in Zwiers showed good faith on the
part of the plaintiff; the record here is silent on that
point—one way or the other.
We conclude that if a complaint that is filed one day
prematurely may be amended pursuant to MCL
600.2301, then it is not possible to foreclose out of hand
the possibility that an action that is filed prematurely
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by 70 days may also be amended pursuant to MCL
600.2301. Whether such amendment can, and therefore
should, be granted in any particular case will, of course,
depend on an evaluation of the specific facts and cir-
cumstances of each case. In particular, the court must
examine whether the party seeking amendment lacked
good faith and whether the party opposing amendment
will suffer prejudice that cannot be remedied by a lesser
sanction than dismissal. That evaluation must initially
be made by the trial court after the parties have had an
opportunity to be heard on the question.
In interpreting a predecessor statute to MCL
600.2301, our Supreme Court explained that the pur-
pose of the statute was “to abolish technical errors in
proceedings and to have cases disposed of as nearly as
possible in accordance with the substantial rights of the
parties,” that the statute should be construed liberally,
and that the “right to permit amendments, in accor-
dance with the statute, is vested in the sound judgment
and discretion of the trial court.” M M Gantz Co v
Alexander, 258 Mich 695, 697; 242 NW 813 (1932). The
failure to exercise discretion when called on to do so is
inherently an abuse of discretion. People v Stafford, 434
Mich 125, 134 n 4; 450 NW2d 559 (1990). On this
record, we are unable to determine whether plaintiff
can make the requisite showing, and we decline to make
any presumptions. We therefore conclude that on the
basis of both Zwiers and the purpose behind MCL
600.2301, the trial court erred by failing to at least
consider the possibility of allowing plaintiff to amend
her complaint and afford plaintiff the opportunity to
present an argument.
The trial court correctly determined that, all other
matters being equal, dismissal with prejudice was the
only possible outcome of this matter. However, plaintiff
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should be afforded the opportunity to make an argu-
ment in support of amending the filing date of her
complaint and affidavit of merit, including the presen-
tation of evidence should the trial court deem doing so
appropriate,
4
and the trial court should exercise its
discretion by either granting or denying that amend-
ment pursuant to MCL 600.2301 and Zwiers. We there-
fore reverse the grant of summary disposition in favor
of defendants and remand for further proceedings con-
sistent with this opinion and as the trial court deems
necessary or proper. We do not retain jurisdiction.
Plaintiff, being the prevailing party, may tax costs
pursuant to MCR 7.219.
S
TEPHENS
, J., concurred with R
ONAYNE
K
RAUSE
,JJ.
W
ILDER
,P.J. (dissenting). I respectfully dissent from
the majority opinion, which reverses the trial court’s
order granting summary disposition in favor of defen-
dants and remands for further proceedings on the basis
of Zwiers v Growney, 286 Mich App 38; 778 NW2d 81
(2009), and MCL 600.2301. Because Burton v Reed City
Hosp Corp, 471 Mich 745; 691 NW2d 424 (2005), and
Driver v Naini, 490 Mich 239; 802 NW2d 311 (2011),
continue to be binding on this Court, I would affirm.
I
MCL 600.2912b(1) “unequivocally provides” that a
plaintiff “ ‘shall not’ commence an action alleging medi-
cal malpractice...until the expiration of the statutory
notice period.” Burton, 471 Mich at 752. As the majority
recognizes, even though a defective notice of intent
(NOI) tolls the applicable limitations period, Bush v
4
Obviously, defendants are equally entitled to present their own
arguments and, as applicable, evidence on this matter.
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Shabahang, 484 Mich 156, 170; 772 NW2d 272 (2009),
a prematurely filed complaint does not toll the period of
limitations, Burton, 471 Mich at 752. Our Supreme
Court in Driver, 490 Mich at 257-258, found no conflict
with these parameters and found that Burton is still
good law:
Nothing in Bush altered our holding in Burton. The
central issue in Bush involved the effect an NOI had on
tolling when the NOI failed to comply with the content
requirements of MCL 600.2912b(4). The central issue in
Burton involved the effect the plaintiff’s failure to comply
with the notice-waiting-period requirements had on tolling.
Indeed, the Bush Court repeatedly emphasized that the
focus of MCL 600.5856(c) is compliance with the notice
waiting period set forth in MCL 600.2912b. In contrast to
placing doubt on the viability of Burton, this aspect of Bush
aligned with Burton’s holding that a plaintiff must comply
with the notice waiting period to ensure the complaint tolls
the statute of limitations.
Plaintiff filed her complaint and affidavit of merit in
this case only 112 days after serving the notices of
intent on defendants in contravention of MCL
600.2912b(1), which requires that a plaintiff wait at
least 182 days before “commenc[ing]” an action.
1
Thus,
I would find that we are bound to conclude that
plaintiff’s action was not properly commenced. MCL
600.2912b(1); Burton, 471 Mich at 752.
Further, I disagree with the majority’s conclusion
that defendants waived, or even could have waived, an
affirmative defense that plaintiff’s complaint was pre-
maturely filed. In its order in Auslander v Chernick, 480
Mich 910; 739 NW2d 620 (2007), the Supreme Court
concluded that a defendant can still raise the issue of a
plaintiff failing to comply with MCL 600.2912b irre-
1
Certain conditions can reduce this waiting period. See, e.g., MCL
600.2912b(3) and (7).
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spective of whether the defendant properly asserts it.
Because the order in Auslander is also binding on this
Court, see DeFrain v State Farm Mut Auto Ins Co, 491
Mich 359, 369-370; 817 NW2d 504 (2012), I would
further conclude that defendants did not waive their
affirmative defenses that the instant medical malprac-
tice action was not properly commenced.
II
The majority also reverses and remands on the basis
of this Court’s ruling in Zwiers, 286 Mich App 38 and
MCL 600.2301. I disagree with this disposition. Al-
though not a medical malpractice statute, MCL
600.2301 does apply to medical malpractice actions
because it applies where “any action or proceeding is
pending.” (Emphasis added.) The statute provides in
full:
The court in which any action or proceeding is pending,
has power to amend any process, pleading or proceeding in
such action or proceeding, either in form or substance, for
the furtherance of justice, on such terms as are just, at any
time before judgment rendered therein. The court at every
stage of the action or proceeding shall disregard any error
or defect in the proceedings which do not affect the
substantial rights of the parties.
Thus, “MCL 600.2301 only applies to actions or
proceedings that are pending.” Driver, 490 Mich at 254.
The Supreme Court concluded in Driver that MCL
600.2301 was inapplicable under the facts of that case
because, since “an NOI is part of a medical malpractice
‘proceeding’ ” and the applicable limitations period had
already expired by the time the defendant was served
with the NOI, there was no existing “proceeding” in
that case. Id. The Court noted that the NOI could not
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ILDER
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have been part of any “proceeding” because plaintiff’s
claim was already time-barred when plaintiff served the
NOI. Id.
Applying the Supreme Court’s analysis in Driver to
the facts in this case, plaintiff’s complaint cannot be
resurrected under MCL 600.2301. I agree that at the
time plaintiff properly served NOIs to defendants, a
proceeding was pending to which MCL 600.2301 would
have been applicable. However, the limitations period
expired without commencement of a medical malprac-
tice action because plaintiff’s complaint was filed pre-
maturely. Since “ ‘[a]n action is not “pending” if it
cannot be [or was not] “commenced,” ’ ” id., there was
no action pending in the trial court to which MCL
600.2301 could be retroactively applied. Moreover, ret-
roactive application of MCL 600.2301 would affect
defendant’s substantial rights because defendant would
be “denied its right to a statute-of-limitations defense,”
which is plainly contrary to, and not in furtherance of,
the Legislature’s intent in enacting MCL 600.2912b. Id.
at 255.
2
In this regard, this Court’s holding in Zwiers, 286
Mich App 38, is significantly undermined by our Su-
preme Court’s later decision in Driver.InZwiers, the
plaintiff timely filed her NOI but had inadvertently
filed her complaint 181 days after serving the NOIs on
the defendants instead of the statutorily prescribed 182
days. Id. at 39. The trial court granted the defendants’
motion for summary disposition on the basis that the
complaint failed to commence the action and toll the
2
Thus, even assuming the expiration of the limitations period did not
also extinguish the proceeding which commenced with the filing of the
NOI, any amendment of plaintiff’s complaint in an attempt to retroac-
tively meet the requisite limitations period would also affect defendant’s
substantial rights by depriving it of a valid statute of limitations defense,
such that MCL 600.2301 would be inapplicable.
230 302 M
ICH
A
PP
208 [Aug
D
ISSENTING
O
PINION BY
W
ILDER
,P.J.
limitations period. Id. at 40. Finding that no substantial
right of the defendants was affected, that resolving the
case on the merits was in the interests of justice, and
that MCL 600.2301 was applicable to the entire notice
process, the Zwiers Court found that under MCL
600.2301, the plaintiff was entitled to amend the filing
date of the complaint and affidavit of merit. Id. at 50-52.
Zwiers was undermined by the Supreme Court’s
subsequent decision in Driver for several reasons. First,
because the plaintiff in Zwiers prematurely filed her
complaint, no action was commenced by the plaintiff
before the limitations period expired, and therefore, no
action was ever pending such that the trial court would
be authorized under MCL 600.2301 to permit an
amendment of the complaint by which plaintiff at-
tempted to commence the action. Driver, 490 Mich at
254. Second, Driver’s holding, that a statute of limita-
tions defense is a substantial right to which a defendant
is entitled, contradicts the finding in Zwiers that no
substantial right of the defendants was affected by
permitting the filing of an amended complaint pursuant
to MCL 600.2301.
3
For the reasons stated herein, I respectfully dissent
and would affirm the trial court’s order granting sum-
mary disposition in favor of defendants.
3
Notably, unlike the Supreme Court in Driver, the Zwiers Court did
not address the impact of the defendants’ right to a statute of limitations
defense on the trial court’s ability to utilize MCL 600.2301 to resurrect
the plaintiff’s cause of action; instead, it only focused on the fact that
“[t]here was no evidence of interrupted settlement negotiations on the
date of filing[] and [that the] defendants had the time and opportunity to
investigate plaintiff’s allegations as evidenced by defendants’ response to
plaintiff’s NOI under MCL 600.2912b(7).” Zwiers, 286 Mich App at 51.
2013] T
YRA V
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RGAN
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ROCUREMENT
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GENCY
231
D
ISSENTING
O
PINION BY
W
ILDER
,P.J.
MATTHEW R ABEL, PC v GROSSMAN INVESTMENTS COMPANY
Docket No. 308939. Submitted July 17, 2013, at Detroit. Decided August 15,
2013, at 9:05 a.m.
Matthew R. Abel, PC (Abel), brought an action in the 48th District
Court against Grossman Investments Company (GIC). The
district court entered a judgment against GIC for $12,353.23.
After awaiting payment for a decade, Abel renewed the judg-
ment and moved for the appointment of a receiver to assist with
the collection efforts. In 2010, the district court granted the
motion and appointed a receiver. The receiver hired three
attorneys or their professional corporations to assist his efforts.
In 2011, GIC tendered the full judgment amount, with interest,
of $17,258.30, which was placed in escrow with the district
court. The receiver then sought fees and costs totaling $24,000,
including $18,601.30 for Michael Tindall, acting through his
professional corporation, Tindall & Company, PC, whom the
receiver had hired to assist his efforts. GIC objected to the
requested fees. The district court, Diane D’Agostini, J., con-
ducted hearings regarding the fee request and entered an
opinion and order that, in relevant part, granted Tindall a fee
award in an amount far less than he had sought. Abel, the
receiver, and the other two attorneys or their professional
corporations hired by the receiver did not appeal. Tindall sought
to appeal in the Oakland Circuit Court with regard to the
matter of his fees. GIC moved to dismiss on the basis that
Tindall lacked standing because he was not an aggrieved party.
The circuit court, Colleen A. O’Brien, J., granted the motion to
dismiss. The Court of Appeals granted Tindall’s application for
leave to appeal limited to the issue whether the circuit court
erred by dismissing the appeal. Abel v Grossman Investments Co,
unpublished order, entered November 14, 2012 (Docket No.
308939).
The Court of Appeals held:
1. The circuit court erred by holding that Tindall lacked
standing to challenge the district court’s order in the circuit court.
To be aggrieved, one must have some interest of a pecuniary
nature in the outcome of the case, and not a mere possibility
232 302 M
ICH
A
PP
232 [Aug
arising from some unknown and future contingency. By virtue of
an order granting, denying, or setting fees, an attorney or a
receiver gains a pecuniary interest in such a court ruling. Tindall
is an aggrieved party with standing to appeal because he suffered
a concrete and particularized injury arising from the district
court’s order. Postjudgment orders awarding attorney fees or costs
are final orders appealable as of right.
2. Tindall was not required to move in the district court to
intervene in the action as a prerequisite for appellate standing.
Tindall’s claim for fees was justiciable, however, Tindall may not
name a new, previously uninvolved party in this appeal.
Reversed and remanded.
1. A
PPEAL —
S
TANDING TO
A
PPEAL —
A
GGRIEVED
P
ARTIES
.
A litigant must be an aggrieved party in order to have standing to
appeal; a litigant, to be aggrieved, must have some interest of a
pecuniary nature in the outcome of the case and not a mere
possibility arising from an unknown or future contingency; a
litigant on appeal must demonstrate an injury arising from either
the actions of the trial court or the appellate court judgment rather
than an injury arising from the underlying facts of the case.
2. A
PPEAL —
S
TANDING TO
A
PPEAL —
A
TTORNEYS —
R
ECEIVERS —
F
EES
.
An attorney or a receiver has a pecuniary interest in an order
granting, denying, or setting the fees of the attorney or receiver;
an attorney or receiver suffers a concrete and particularized injury
when a court orders that the attorney or receiver receive less than
he or she had sought.
3. A
PPEAL —
S
TANDING TO
A
PPEAL —
A
TTORNEY
F
EE —
A
WARDS —
I
NTERVENTION.
An attorney is not required to intervene in an action as a prerequi-
site for standing to appeal the attorney fee awarded the attorney in
the action.
4. A
PPEAL —
P
OSTJUDGMENT
O
RDERS —
A
TTORNEY
F
EES —
F
INAL
O
RDERS
.
Postjudgment orders awarding attorney fees or costs are final orders
that are appealable as of right (MCR 7.203[A][1]).
Tindall & Company, PC (by Michael E. Tindall), for
Tindall & Company, PC.
Vezina Law, PLC (by J. Laevin Weiner and Louis C.
Szura), for Grossman Investments Company.
2013] A
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,PC
V
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ROSSMAN
233
Before: G
LEICHER
,P.J., and B
ECKERING
and S
HAPIRO
,
JJ.
P
ER
C
URIAM
. The issue presented in this case is
whether an attorney (here acting through his profes-
sional corporation) retained by a court-appointed re-
ceiver may appeal a trial court’s fee award. The receiver
hired attorney Michael Tindall of Tindall & Company,
PC (Tindall), to assist in collecting a judgment. When
the debt was collected, the receiver sought fees for
himself and Tindall. The district court granted Tindall
a fee award far below that which he had sought. Tindall
sought to appeal in the circuit court, which dismissed
based, in part, on Tindall’s nonparty status. Because
Tindall is an aggrieved party, he may appeal the district
court order. Accordingly, we reverse the order of the
circuit court and remand to that court for continued
appellate proceedings.
I. BACKGROUND
In the early 1990s, plaintiff, Matthew R. Abel, PC
(Abel), brought an action in the 48th District Court
against defendant, Grossman Investments Company
(GIC). In 1993, Abel secured a $12,353.23 judgment
against GIC. After awaiting payment for a decade, Abel
renewed that judgment. Abel’s counsel, attorney Issa
Haddad, struggled to collect the judgment because he
could not serve GIC or its resident agent, Gordon Gross-
man, with process. Haddad moved in the district court for
the appointment of a receiver to assist with the collection
efforts. See MCL 600.2926; MCL 600.6104(4) (governing
court appointment of receivers). In 2010, the district court
granted Haddad’s request in a one-sentence order stating
simply, “Plaintiff’s motion to appoint Gregory Saffady as
receiver is hereby Granted.”
234 302 M
ICH
A
PP
232 [Aug
Saffady encountered similar difficulties in serving
GIC. He hired three attorneys or their professional
corporations to assist with the collection efforts, includ-
ing Tindall. Tindall is also a certified public accountant
and has experience in conducting fraud investigations.
Only Tindall’s claim for fees remains unresolved.
In July 2011, GIC finally tendered the full judgment
amount, with interest, of $17,258.30. This sum was
placed in escrow with the district court. Saffady then
sought fees and costs totaling approximately $24,000,
including Tindall’s fee of $18,601.30. These costs, if
awarded, would be charged to GIC. GIC objected to the
requested fees and moved for an evidentiary hearing
regarding their reasonableness.
Saffady and Tindall objected to an evidentiary hearing,
insisting that GIC lacked standing to challenge the rea-
sonableness of Saffady’s fee and costs request. In support
of their position, Saffady and Tindall invoked MCR 2.622,
which generally sets forth the powers and duties of a
receiver. Essentially, Saffady and Tindall argued that
because GIC failed to appear in response to Abel’s motion
to appoint a receiver and never objected to the appoint-
ment, it waived any challenges to the receiver’s fees. The
district court ruled that it would not “sign a blank check”
in favor of Saffady and Tindall, rejected their standing
argument, and commenced a fee hearing pursuant to
Smith v Khouri, 481 Mich 519; 751 NW2d 472 (2008).
It appears from the district court docket sheet that
the fee hearing was held over three days in August,
September, and October 2011. The full transcripts of
the hearings have not been presented to this Court,
however. In its October bench opinion, the district court
summarized the evidence produced at the evidentiary
hearings and found the bills submitted by Tindall and
Saffady unreasonable, particularly because the fees far
2013] A
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,PC
V
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ROSSMAN
235
exceeded the approximately $12,000 judgment. The
district court’s order stated, in relevant part:
Pursuant to hearings held August 11, 2011, September 8,
2011 and October 6, 2011, and a review of exhibits and
testimony, concerning Defendant/Judgment Debtor [GIC’s]
Objection to Receiver Fees and Administration Expenses, this
Court rules as follows:
$6950.00 total shall be awarded to the Receiver to be
allocated as follows:
-$3450.00 as Receiver Fees.
-$3500.00 as Administration Expenses (legal fees in-
curred for Tindall, P.C.)[.]
All other monetary requests made by the Receiver, his
attorneys and others are hereby Denied. The $17,258.30
deposited in escrow with the Receiver shall be paid to
Plaintiff Matthew Abel, P.C. in full satisfaction of the
judgment.
Tindall thereafter sought to appeal this decision in
the circuit court, addressing only the matter of his fees.
Plaintiff Abel, the court-appointed receiver, and the
other two attorneys or their professional corporations
hired by the receiver chose not to pursue appeals. The
circuit court initially rejected Tindall’s claim of appeal
“for failure to comply with MCR 7.101(C)(2)([b]),”
which required the appellant to file a bond, but Tindall
subsequently cured this defect.
1
GIC then moved to dismiss Tindall’s appeal, arguing
that Tindall lacked standing because he was not an
1
The bond requirements are now found in MCR 7.104(E)(3) and MCR
7.108. By accepting Tindall’s late-posted bond, the circuit court implicitly
found the timing issue irrelevant. Moreover, “a bond is required to secure
a stay of proceedings to enforce the judgment during the appeal, it is not
a condition of the right to appeal.” Wright v Fields, 412 Mich 227, 228;
313 NW2d 902 (1981). Tindall’s failure to timely file a bond does not
negate his right to appeal.
236 302 M
ICH
A
PP
232 [Aug
“aggrieved party” under the court rules.
2
The circuit
court granted GIC’s motion and dismissed Tindall’s
appeal based on his nonparty status by signing a form
order stating merely that “[t]he court adopts the argu-
ments of the defendant/appellee.” This Court granted
Tindall’s application for leave to appeal limited “to the
issue of whether the circuit court erred by dismissing
appellant’s appeal from the district court. MCR
7.205(D)(4).” Abel v Grossman Investments Co, unpub-
lished order of the Court of Appeals, entered Novem-
ber 14, 2012 (Docket No. 308939).
II. APPELLATE STANDING
The circuit court erred by dismissing an appeal taken
by an individual (or his professional corporation) di-
rectly, personally, and financially affected and bound by
the district court’s order. Such an individual or entity
has “standing” to challenge that order in a higher court.
We review de novo issues that implicate the constitu-
tional authority of the judiciary, such as whether a
matter is properly placed before a court by a person
with standing. Federated Ins Co v Oakland Co Rd
Comm, 475 Mich 286, 290; 715 NW2d 846 (2006). We
also review de novo the interpretation of statutes and
court rules. Associated Builders & Contractors v Dep’t
of Consumer & Indus Servs Dir, 472 Mich 117, 123-124;
693 NW2d 374 (2005), overruled in part on other
grounds Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487
Mich 349, 371 & n 18 (2010).
2
GIC also argued that Tindall’s appeal should be dismissed because he
failed to order the “full transcript” of the district court proceedings, as
required by former MCR 7.101(C)(2)(d), and failed to timely file a bond
for costs, as required by former MCR 7.101(C)(2)(b). The circuit court
declined to reach the merits of the appeal, rending the lack of a full record
moot. If Tindall fails to remedy this hole in the record, the circuit court
will need to address that issue on remand.
2013] A
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237
Circuit courts have jurisdiction conferred by statute
to hear appeals from the district court. MCL
600.8342(1). Appeals to the circuit court from final
judgments in the district court “shall be as of right and
all other appeals shall be by application.” MCL
600.8342(2).
3
The procedures for appeals from the district to the
circuit court are governed by a series of court rules.
Those rules were substantially rewritten in 2011, with
an effective date of May 1, 2012. Because the circuit
court dismissed this appeal in January 2012, the prea-
mendment court rules govern this case. The fundamen-
tal legal principles governing appellate standing remain
unaffected by changes in the language of the applicable
court rules.
The prior version of MCR 7.101(A)(1) provided, in
relevant part: “This rule applies to appeals to the circuit
court from the district court and probate court, each
referred to as ‘trial court’ in MCR 7.101 and 7.103.” The
prior rule continued:
(2) An order or judgment of a trial court reviewable in
the circuit court may be reviewed only by an appeal.
(3) This rule does not restrict or enlarge the right of
review provided by law or make an order or judgment
reviewable if it is not otherwise reviewable.
[
4
]
Former MCR 7.101(C), headed “Manner of Taking
Appeal; Appeal of Right” provided, in relevant part:
(1) Claim of Appeal. To appeal of right, within the time
for taking an appeal, an appellant must file a claim of
3
The statute provides one exception to this rule: “All appeals from final
orders and judgments based upon pleas of guilty or nolo contendere shall
be by application.” MCL 600.8342(4).
4
The current MCR 7.101(A) simply states: “Scope of Rules. The rules
in this subchapter govern appeals to the circuit court.”
238 302 M
ICH
A
PP
232 [Aug
appeal with the circuit court clerk and pay the fee, if
required by law. The parties are named in the same order
as they appeared in the trial court, but with the added
designation “appellant” or “appellee”. The claim must
state:
“[Name of aggrieved party] claims an appeal from the
[judgment or order] entered [date]in[name of the trial
court].”
Other than these provisions, the prior court rules did
not address the scope of the circuit court’s appellate
jurisdiction.
Currently, MCR 7.103(A)(1) affords the circuit court
jurisdiction “of an appeal of right filed by an aggrieved
party” from “a final judgment or final order of a district
or municipal court[.]” MCR 7.203(A)(1), governing ap-
peals as of right in this Court, has provided at all
relevant times for jurisdiction in an appeal as of right
“filed by an aggrieved party from...[a]final judgment
or final order of the circuit court....”
The former version of the court rules governing
appeals from the district to the circuit court did not use
the term “aggrieved party” to describe who may claim
an appeal, other than the reference in MCR 7.101(C)(1).
Nevertheless, it is appropriate to evaluate Tindall’s
ability to bring an appeal under the “aggrieved party”
rubric, as it generally applies to any appeal. This
conclusion is buttressed by the Supreme Court’s 2006
decision in Federated Ins Co, 475 Mich 286.
In Federated Ins Co, 475 Mich at 288, the Supreme
Court considered whether the Attorney General could
appeal as an intervenor in the Supreme Court “when
the named losing parties did not themselves seek review
in this Court.” In answering this question in the nega-
tive, the Supreme Court employed three legal analyses:
2013] A
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,PC
V
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ROSSMAN
239
“standing, the ‘aggrieved party’ concept, and what
constitutes a justiciable controversy.” Id. at 290.
Standing, the Supreme Court explained, “refers to
the right of a party plaintiff initially to invoke the
power of the court to adjudicate a claimed injury in
fact.” Id. In the appellate context, “a similar interest is
vindicated by the requirement that the party seeking
appellate relief be an ‘aggrieved party’ under MCR
7.203(A) and our case law.” Id. at 290-291. Thus, the
Supreme Court equated standing to bring suit as a
plaintiff with being an “aggrieved party” as an appel-
lant.
“ ‘To be aggrieved, one must have some interest of a
pecuniary nature in the outcome of the case, and not a
mere possibility arising from some unknown and future
contingency.’ ” Id. at 291, quoting In re Estate of
Trankla, 321 Mich 478, 482; 32 NW2d 715 (1948). The
Supreme Court continued:
An aggrieved party is not one who is merely disap-
pointed over a certain result. Rather, to have standing on
appeal, a litigant must have suffered a concrete and par-
ticularized injury, as would a party plaintiff initially invok-
ing the court’s power. The only difference is a litigant on
appeal must demonstrate an injury arising from either the
actions of the trial court or the appellate court judgment
rather than an injury arising from the underlying facts of
the case. [Federated Ins Co, 475 Mich at 291-292 (emphasis
added).]
In addition to satisfying these “aggrieved party”
requirements, an appellant must also demonstrate that
the underlying controversy is justiciable.
[I]f a court would not otherwise have subject matter
jurisdiction over the issue before it or, if the issue is not
justiciable because it does not involve a genuine, live
controversy between interested persons asserting adverse
240 302 M
ICH
A
PP
232 [Aug
claims, the decision of which can definitively affect existing
legal relations, a court may not declare the rights and
obligations of the parties before it. [Allstate Ins Co v Hayes,
442 Mich 56, 66; 499 NW2d 743 (1993).]
By virtue of an order granting, denying, or setting
fees, an attorney (or a receiver) gains a pecuniary
interest in such a court ruling. Because Tindall received
less remuneration than he sought, he suffered “a con-
crete and particularized injury” arising from the dis-
trict court’s order. Federated Ins Co, 475 Mich at 291.
5
This injury arose from the actions of the district court’s
judgment rather than from the underlying facts of the
case. Accordingly, pursuant to Federated Ins Co, Tindall
is an aggrieved party with standing to appeal.
GIC first contends that Tindall is not an “aggrieved
party” because he failed to move for intervention in the
underlying action. Indeed, there are cases positing that
intervention is a necessary prerequisite for appellate
standing, such as American States Ins Co v Albin, 118
Mich App 201, 210; 324 NW2d 574 (1982). American
States arose from a personal injury action involving a
fight between two children. The defendant’s insurance
company filed a separate action seeking a declaratory
judgment under its policy. Id. at 204-205. The plaintiff
in the underlying action (John Kuehne, the father of
the injured minor) attempted to intervene in the de-
claratory judgment action but did so untimely, one day
after summary disposition had been granted in favor of
the insurance company. Id. at 205. This Court held that
the trial court did not err by denying the application for
5
To the extent that the standing doctrine announced in Lansing Sch
may apply to the determination of an “aggrieved party” under the court
rules, Tindall would certainly meet the less stringent standard of
establishing that he suffered a “special injury” and was “detrimentally
affected in a manner different from the citizenry at large....”Lansing
Sch, 487 Mich at 372.
2013] A
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241
intervention, and refused to consider on appeal whether
the trial court had incorrectly granted summary dispo-
sition: “Since plaintiff Kuehne never perfected his sta-
tus as an intervening defendant in the declaratory
judgment action, he is not an aggrieved party within the
meaning of GCR 1963, 806.1 and therefore has no right
to appeal to this Court.” Id. at 209-210.
The intervention cases are readily distinguishable
from cases involving claims for attorney or receivership
fees. In American States, Kuehne had an interest in the
subject of the declaratory judgment action itself: the
question whether coverage existed. Here, Tindall had
no interest in Abel’s claim until the district court issued
an order denying part of the fees he had requested.
Furthermore, intervention is simply not a necessary
prerequisite for standing to appeal an attorney fee
award.
The Supreme Court has repeatedly recognized that,
in certain situations, attorneys may seek payment for
services without becoming parties to the litigation. In
Merkel v Long, 372 Mich 144, 154-155; 125 NW2d 284
(1963), the Supreme Court permitted attorneys who
had litigated the rights of various claimants to an estate
to seek payment of their fees from the trust corpus
despite that the attorneys were not parties of record in
the underlying action. It bears emphasis that in cases
involving postjudgment attorney fee disputes, an indi-
vidual attorney’s interest arises only after entry of an
order distributing fees, which generally occurs long
after the underlying dispute has been adjudicated or
settled. See, e.g., Reynolds v Polen, 222 Mich App 20;
564 NW2d 467 (1997). At that point, it makes little
sense to require a disgruntled attorney (or receiver) to
formally seek intervention in a case that has otherwise
closed.
242 302 M
ICH
A
PP
232 [Aug
Moreover, postjudgment orders awarding attorney
fees or costs constitute final orders appealable as of
right under MCR 7.203(A)(1). See West Mich Mech, Inc
v West Mich Mech Servs, LLC, 480 Mich 916 (2007). And
although MCR 7.203(A)(1) governs appeals to this
Court, we perceive no logical reason that a different
rule should apply in appeals from the district to the
circuit court.
Analogous federal caselaw also does not support
GIC’s mandatory intervention argument. In Devlin v
Scardelletti, 536 US 1, 3; 122 S Ct 2005; 153 L Ed 2d 27
(2002), the United States Supreme Court considered
whether the petitioner, a participant in a retirement
plan, could appeal the approval of a class action settle-
ment despite that the petitioner was not a named class
representative and had unsuccessfully moved to inter-
vene in the litigation. The Supreme Court first observed
that the petitioner clearly had an interest in the settle-
ment, satisfying the federal constitutional standing
requirements. Id. at 6-7. Nor did the petitioner’s failure
to gain status as a “party” to the underlying litigation
doom his ability to appeal: “We have never... re-
stricted the right to appeal to named parties to the
litigation.” Id. at 7. In the cases cited by the Court as
support for this proposition, the appellants were parties
“only in the sense that they were bound by the order
from which they were seeking to appeal.” Id.at8.The
term “party,” the Supreme Court noted, “does not
indicate an absolute characteristic, but rather a conclu-
sion about the applicability of various procedural rules
that may differ based on context.” Id. at 10. Thus,
“nonnamed class members are parties to the proceed-
ings in the sense of being bound by the settlement.” Id.
The Devlin petitioner’s interest therefore sufficed to
allow his appeal.
2013] A
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,PC
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243
GIC next invokes Federated as support for its argu-
ment that because neither Abel nor GIC elected to
appeal the district court’s order, Tindall’s claim for fees
is not justiciable. GIC misapprehends Federated. There,
the Supreme Court held that the merits of the case
ceased to be justiciable once the parties failed to appeal
from precisely the same order that the Attorney Gen-
eral then sought to challenge. Here, Tindall seeks
appellate consideration of an entirely different contro-
versy. Tindall’s claim is justiciable because it consti-
tutes a genuine, live dispute arising from an issue
separate from the amount of the judgment. And an
appellate ruling concerning Tindall’s fees and costs will
not alter the terms of that judgment.
Ironically, GIC itself previously espoused a position
directly supporting Tindall’s right to directly beseech
the court for its requested fees. As noted, Tindall
challenged GIC’s standing to contest its fee request in
the district court. In response to Tindall’s argument,
GIC asserted:
It is both unsupported and unsupportable to take the
position that it is only the Receiver that can interact with
the Court, the decision maker as to the question of the fees
and costs prayed for by that receiver. Surely, when other
parties are clearly impacted by that consideration and
determination, to deny them a voice and position belies the
concept of due process. Who is to be paid, what is to be paid,
in what amounts, and, in what order, each and all are
within the sole discretion of the Court. Respectfully, the
Court has the right and the obligation to consider all voices
raised in support and objection to those elements of relief.
While Tindall was not a named party in the under-
lying action, he has a special, concrete, and particular-
ized interest no different than GIC’s asserted “right” to
weigh in on “the question of the fees and costs.” That
said, we agree with GIC that Tindall lacks the power to
244 302 M
ICH
A
PP
232 [Aug
bootstrap nonparty appellees to his claim. In Tindall’s
circuit court claim of appeal he named “Gordon Gross-
man and all Related persons/Entities” as appellees.
Grossman is a principal of GIC. However, Grossman
was not a party to the underlying lawsuit and has not
consented to the court’s jurisdiction over him person-
ally. Tindall has no legal basis for naming a new,
previously uninvolved party in this appeal.
Reversed and remanded for further proceedings con-
sistent with this opinion. We do not retain jurisdiction.
G
LEICHER
,P.J., and B
ECKERING
and S
HAPIRO
, JJ., con-
curred.
2013] A
BEL
,PC
V
G
ROSSMAN
245
UAW v GREEN
Docket No. 314781. Original action filed February 14, 2013. Submitted
without oral argument April 11, 2013. Decided August 15, 2013, at
9:10 a.m. Leave to appeal sought.
The International Union, United Automobile, Aerospace, and Agricul-
tural Implement Workers of America; UAW Local 6000; Michigan
Corrections Organization, SEIU Local 526; Michigan Public Employ-
ees, SEIU Local 517M; and Michigan State Employees Association,
AFSCME, Local 5 brought an action in the Court of Appeals against
Michigan Employment Relations Commission members Nino E.
Green, Edward D. Callaghan, and Robert LaBrant; the Governor;
and the Attorney General, seeking declaratory relief that portions of
the amendments of the public employment relations act (PERA),
MCL 423.201 et seq., enacted by 2012 PA 349 were unconstitutional
with respect to employees in the classified state civil service. MCL
423.210(3)(d), as amended by 2012 PA 349, provides that a public
employer may not require governmental employees to join a union or
pay union dues, fees, or other expenses as a condition of obtaining or
continuing public employment. Plaintiffs asserted that with respect
to state civil service employees, the amendments intruded on the
authority of the Civil Service Commission (CSC) under Const 1963,
art 11, § 5 to regulate all conditions of those individuals’ employment
and that the CSC rather than the Legislature has the authority to
decide whether payments to unions by civil service employees should
be mandatory or voluntary.
The Court of Appeals, without hearing oral argument, held:
1. The Legislature has the authority to enact legislation with
regard to agency fees, and the amendments enacted by 2012 PA
349 apply to employees in the classified state civil service.
2. Const 1963, art 11, § 5 provides that the CSC shall regulate
all conditions of employment in the classified state civil service.
With regard to public employees, Const 1963, art 4, § 48 states that
the Legislature may enact laws providing for the resolution of
disputes concerning public employees except those in the classified
state civil service. However, with regard to all employees, Const
1963, art 4, § 49 provides that the Legislature may enact laws
246 302 M
ICH
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PP
246 [Aug
relative to the hours and conditions of employment. 2012 PA 349
did not address the resolution of public employee labor disputes
and therefore did not come within the restriction of Const 1963,
art 4, § 48. Pursuant to MCL 423.204a, the Legislature’s powers
apply to civil service employees to the extent that the Legislature
has the power to control state employment under Const 1963, art
4, § 49. Thus, certain provisions of PERA apply to employees in the
classified civil service, including those enacted by 2012 PA 349.
3. Civ Serv R 6-7.2 states that a governmental employer may
enter into an agreement with a union that as a condition of
continued employment, an employee who chooses not to join the
union must pay a service fee to the union, which directly conflicts
with the amendments enacted by 2012 PA 349. That act, however,
was a proper exercise of the Legislature’s constitutional authority
under Const 1963, art 4 § 49 to enact laws relative to conditions of
employment. The ratification of Const 1963, art 4, §§ 48 and 49
and art 11, § 5 clearly indicates that the people of Michigan
intended for the Legislature to retain authority over public em-
ployment disputes involving employees outside the classified state
civil service and over the hours and conditions of employment of
all employees, without excluding those in the classified state civil
service. By ratifying a Constitution containing all three provisions,
the people demonstrated their intent to distinguish civil service
employees from other public employees in some, but not all,
contexts and impose legislative checks and balances on the CSC’s
authority. “Regulate,” the term used in Const 1963, art 11, § 5
with respect to the CSC’s authority, means to govern, direct, or
control according to rule, law, or authority. Therefore, the CSC’s
power to issue rules governing civil service employment is not
limitless in scope, but is subject to and in accordance with the
Legislature’s power to enact laws regarding conditions of employ-
ment. The Legislature has the broad power to enact laws relative
to the conditions of all employment, whereas the CSC has the
narrow power to regulate conditions of civil service employment.
G
LEICHER
, J., dissenting, would have held that the agency-fee
restrictions of 2012 PA 349 unconstitutionally infringed the CSC’s
power under Const 1963, art 11, § 5 to regulate all conditions of
employment in the classified state civil service, in violation of the
separation of powers. The CSC determined that collective bargain-
ing enhances the employment conditions of its work force. Because
this judgment comported with the CSC’s constitutional authority,
Civ Serv R 6-7.2 constituted a legitimate exercise of the CSC’s
power and the agency fees it authorized were not subject to
legislative elimination.
2013] UAW
V
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REEN
247
P
UBLIC
E
MPLOYMENT —
C
LASSIFIED
C
IVIL
S
ERVICE —
U
NIONS —
M
ANDATORY
A
GENCY
F
EES —
L
EGISLATIVE
P
OWER TO
P
ROHIBIT
.
Const 1963, art 11, § 5 provides that the Civil Service Commission
regulates all conditions of employment in the classified state civil
service; Const 1963, art 4, § 48 states that the Legislature may
enact laws providing for the resolution of disputes concerning
public employees except those in the state classified civil service,
but with regard to all employees, Const 1963, art 4, § 49 provides
that the Legislature may enact laws relative to the hours and
conditions of employment; MCL 423.210(3)(d), as amended by
2012 PA 349, which provides that a public employer may not
require governmental employees to join a union or pay union dues,
fees, or other expenses as a condition of obtaining or continuing
public employment, is thus within the scope of the Legislature’s
power to control state employment and is constitutional.
William A. Wertheimer, Michael B. Nicholson, and
Ava R. Barbour for the UAW and UAW Local 6000.
William A. Wertheimer and Sachs Waldman, PC (by
Andrew Nickelhoff), for Michigan Corrections Organi-
zation, SEIU Local 526; and Michigan Public Employ-
ees, SEIU Local 517M.
William A. Wertheimer and Fraser, Trebilcock, Davis
& Dunlap, PC (by Michael E. Cavanaugh and Brandon
W. Zuk), for Michigan State Employees Association,
AFSCME, Local 5.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Richard A. Bandstra, Chief Legal
Counsel, and Ann M. Sherman and Margaret A. Nelson,
Assistant Attorneys General, for Nino E. Green, Ed-
ward D. Callaghan, Robert LaBrant, the Governor, and
the Attorney General.
Amicus Curiae:
Miller, Canfield, Paddock and Stone, PLC (by
Michael J. Hodge and Scott R. Eldridge), for the Civil
Service Commission.
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Before: S
AAD
,P.J., and D
ONOFRIO
and G
LEICHER
,JJ.
S
AAD
,P.J.
I. INTRODUCTION
As an intermediate appellate court, we typically
decide appeals of orders issued by lower courts. But
here, the Legislature placed in this Court exclusive
original jurisdiction over challenges to 2012 PA 349 (PA
349), colloquially called a “right to work” law. MCL
423.210(6). PA 349 amends the public employment
relations act (PERA), MCL 423.201 et seq.,
1
and states
that public employers—that is, the government—
cannot require governmental employees to join a union
or pay union dues, fees, or other expenses “as a condi-
tion of obtaining or continuing public employment ....”
MCL 423.210(3)(d) (emphasis added).
Also, typically, courts entertain constitutional chal-
lenges to substantive provisions of legislation. However,
this action does not challenge the Legislature’s public-
policy decision to amend public-sector labor law to
make financial contributions to unions voluntary in-
stead of compulsory. Nor does it challenge the Legisla-
ture’s right to make such laws applicable to public
employees. Rather, plaintiff unions challenge the Leg-
islature’s constitutional authority to pass PA 349 and
defendants’ right to enforce it with respect to a subset
of public-sector employees—those in the classified state
civil service. Plaintiffs premise this challenge on the
Constitution’s carveout for a civil service system and
the Michigan Civil Service Commission (CSC). Unlike
other governmental employees, those workers identi-
fied in Const 1963, art 11, § 5 are part of the classified
1
Unless otherwise noted, all references to or citations of PERA in this
opinion are to that act as amended by 2012 PA 349.
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civil service, and they work under the aegis of the CSC.
Pursuant to article 11, § 5, the CSC has the authority to
“regulate all conditions of employment” for this group
of governmental employees. Plaintiff unions and the
CSC, as amicus curiae, argue that, within this limited
arena, PA 349 intrudes on the CSC’s sphere of author-
ity. Defendants respond that, under the Michigan Con-
stitution, the Legislature has the power to make laws
applicable to all employees, public and private, includ-
ing classified civil service employees. Defendants fur-
ther maintain that the Legislature has done so in the
past with the approval of our courts.
Since the most recent adoption of the Michigan
Constitution in 1963 and the 1965 passage of PERA,
our courts have not addressed the specific question
before us. That is, in light of this historical, constitu-
tional sharing of responsibilities for rulemaking by the
CSC with respect to classified employees and lawmak-
ing by the Legislature with respect to all employees, the
issue of first impression is which governmental actor—
the Legislature or the CSC—has the power to decide
whether the payment of fees by classified civil service
employees to unions should be mandatory or voluntary.
This is the limited, narrow question we address as the
statute directs, and as the parties ask.
II. STANDARDS OF REVIEW
Because the arguments raised involve the interpre-
tation of provisions of the Michigan Constitution, we
turn to the principles set forth in Traverse City Sch Dist
v Attorney General, 384 Mich 390, 405-406; 185 NW2d 9
(1971), which addresses the “construction of a consti-
tution”:
The primary rule is the rule of “common understand-
ing” described by Justice C
OOLEY
:
250 302 M
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A constitution is made for the people and by the
people. The interpretation that should be given it is
that which reasonable minds, the great mass of the
people themselves, would give it. “For as the Consti-
tution does not derive its force from the convention
which framed, but from the people who ratified it, the
intent to be arrived at is that of the people, and it is not
to be supposed that they have looked for any dark or
abstruse meaning in the words employed, but rather
that they have accepted them in the sense most obvious
to the common understanding, and ratified the in-
strument in the belief that that was the sense de-
signed to be conveyed.” (Cooley’s Const Lim 81).
(Emphasis added.)
***
A second rule is that to clarify meaning, the circum-
stances surrounding the adoption of a constitutional pro-
vision and the purpose sought to be accomplished may be
considered. On this point this Court said the following:
In construing constitutional provisions where the
meaning may be questioned, the court should have
regard to the circumstances leading to their adoption
and the purpose sought to be accomplished. Kearney
v. Board of State Auditors (1915), 189 Mich 666, 673
[155 NW 510].
A third rule is that wherever possible an interpretation
that does not create constitutional invalidity is preferred to
one that does. Chief Justice Marshall pursued this thought
fully in Marbury v. Madison (1803), 5 US (1 Cranch) 137 (2
L Ed 60), which we quote in part:
If any other construction would render the clause
inoperative, that is an additional reason for rejecting
such other construction, * * *.
And while we recognize the political, economic, and
social controversies underlying the enactment of PA
349, they are unrelated to our duty to apply these
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principles of constitutional interpretation. Indeed,
“when a court confronts a constitutional challenge it
must determine the controversy stripped of all digres-
sive and impertinently heated veneer lest the Court
enter—unnecessarily this time—another thorny and
trackless bramblebush of politics.” Straus v Governor,
459 Mich 526, 531; 592 NW2d 53 (1999), quoting Taylor
v Dearborn Twp, 370 Mich 47, 50; 120 NW2d 737 (1963)
(B
LACK
, J., joined by T. M. K
AVANAGH
, J.) (citation and
quotation marks omitted).
Moreover, when a party seeks our declaration that a
statute violates the Constitution, we must operate with
the presumption that the statute is constitutional “un-
less its unconstitutionality is clearly apparent.” Taylor
v Gate Pharm, 468 Mich 1, 6; 658 NW2d 127 (2003). As
our Supreme Court further explained in In re Request
for Advisory Opinion Regarding Constitutionality of
2011 PA 38, 490 Mich 295, 307-308; 806 NW2d
683 (2011):
“We exercise the power to declare a law unconstitutional
with extreme caution, and we never exercise it where
serious doubt exists with regard to the conflict.” Phillips v
Mirac, Inc, 470 Mich 415, 422; 685 NW2d 174 (2004).
“ ‘Every reasonable presumption or intendment must be
indulged in favor of the validity of an act, and it is only
when invalidity appears so clearly as to leave no room for
reasonable doubt that it violates some provision of the
Constitution that a court will refuse to sustain its valid-
ity.’ ” Id. at 423, quoting Cady v Detroit, 289 Mich 499, 505;
286 NW 805 (1939). Therefore, “the burden of proving that
a statute is unconstitutional rests with the party challeng-
ing it,” In re Request for Advisory Opinion Regarding
Constitutionality of 2005 PA 71, 479 Mich 1, 11; 740 NW2d
444 (2007)....“[W]hen considering a claim that a statute
is unconstitutional, the Court does not inquire into the
wisdom of the legislation.” Taylor, 468 Mich at 6.
252 302 M
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Thus, in keeping with the law that governs our review
of this legislation, we begin with the presumption that
PA 349 is constitutional and proceed with the utmost
caution to determine whether the plaintiff unions have
met their burden of proof to show otherwise.
III. DISCUSSION
A. THE MICHIGAN CONSTITUTION, THE ESTABLISHMENT
OF THE CSC, AND THE ENACTMENT OF PERA
Our analysis necessarily begins with the Constitu-
tion itself and the particular sections applicable to the
dispute. Pursuant to Const 1963, art 3, § 2:
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.
“Subject only to limitations and restrictions imposed by
the State or Federal Constitutions, the State legislature
is the repository of all legislative power.” Huron-Clinton
Metro Auth v Bds of Supervisors of Five Cos, 300 Mich
1, 12; 1 NW2d 430 (1942). Indeed, as our Supreme
Court has explained, with these limitations, the Michi-
gan Legislature “possesses all of the power possessed by
the parliament of England,” Doyle v Detroit Election
Comm, 261 Mich 546, 549; 246 NW 220 (1933), and
“can do anything which it is not prohibited from doing
by the people through the Constitution of the State or of
the United States,” Attorney General, ex rel O’Hara v
Montgomery, 275 Mich 504, 538; 267 NW 550 (1936).
Thus, “ ‘[t]he purpose and object of a State Constitu-
tion are not to make specific grants of legislative power,
but to limit that power when it would otherwise be
2013] UAW
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general or unlimited.’ ” Young v Ann Arbor, 267 Mich
241, 244; 255 NW 579 (1934) (citation omitted).
With regard to public employees, Const 1963, art 4,
§ 48 states that “[t]he legislature may enact laws pro-
viding for the resolution of disputes concerning public
employees, except those in the state classified civil
service.” However, with regard to all employees, the
Constitution provides, pursuant to article 4, § 49, that
“[t]he legislature may enact laws relative to the hours
and conditions of employment.”
The civil service system was originally created by the
Legislature “to eliminate the spoils system and prohibit
participation in political activities during the hours of
employment.” AFSCME Council 25 v State Employees’
Retirement Sys, 294 Mich App 1, 10; 818 NW2d 337
(2011). A report drafted by a group appointed by then
Governor Frank Fitzgerald had revealed:
“The spoils system presupposes the existence of govern-
ment jobs to be filled with loyal party workers who can be
counted on not to do the state job better than it can be done
by others, but rather to do the party work or the candidate
work when elections roll around. The state office buildings
are nearly empty during political conventions, and state
money has always been used—indirectly of course—to
enable state employees to move about the state and keep
political fences in repair.
“It is impossible to estimate the loss to the state of this
kind of political activity, but the most inexperienced know
that the amount is considerable. Not only is the regular
work of the state interrupted or interfered with, but its
services and funds are put at the disposal of political
parties.” [Council No 11, AFSCME v Civil Serv Comm, 408
Mich 385, 397 n 10; 292 NW2d 442 (1980), quoting Report
of the Civil Service Study Commission, July 20, 1936.]
The essence of the legislation that followed, 1937 PA
346, was preventing state workers from engaging in
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political activities during working hours. However, in
the next session in 1939, the new Legislature made
various changes, in evident opposition to the reforms
intended by 1937 PA 346, including making a signifi-
cant number of positions exempt from classified civil
service. Council No 11, 408 Mich at 399-400. “Finally, in
1940, apparently dissatisfied with four years of political
maneuvering and legislative advance and retreat on the
civil service system issue, the people of Michigan
adopted a constitutional amendment establishing a
constitutional state civil service system, superseding
the 1939 legislation.” Id. at 400-401. The amendment,
Const 1908, art 6, § 22, focused not on barring employ-
ees from political activities, but on establishing a merit
system for hiring, promotions, demotions, and termina-
tions. Id. at 401. Thus, the fundamental purpose of the
amendment was to provide for an unbiased commission
to promulgate and enforce rules to ensure a merit-based
system of governmental hiring and employment. The
people adopted the civil service provisions in much the
same form in the 1963 Constitution. Specifically, Const
1963, art 11, § 5, provides, in part:
The classified state civil service shall consist of all
positions in the state service except those filled by popular
election, heads of principal departments, members of
boards and commissions, the principal executive officer of
boards and commissions heading principal departments,
employees of courts of record, employees of the legislature,
employees of the state institutions of higher education, all
persons in the armed forces of the state, eight exempt
positions in the office of the governor, and within each
principal department, when requested by the department
head, two other exempt positions, one of which shall be
policy-making. The civil service commission may exempt
three additional positions of a policy-making nature within
each principal department.
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The civil service commission shall be non-salaried and
shall consist of four persons, not more than two of whom
shall be members of the same political party, appointed by
the governor for terms of eight years, no two of which shall
expire in the same year.
The administration of the commission’s powers shall be
vested in a state personnel director who shall be a member
of the classified service and who shall be responsible to and
selected by the commission after open competitive exami-
nation.
The commission shall classify all positions in the classi-
fied service according to their respective duties and respon-
sibilities, fix rates of compensation for all classes of posi-
tions, approve or disapprove disbursements for all personal
services, determine by competitive examination and per-
formance exclusively on the basis of merit, efficiency and
fitness the qualifications of all candidates for positions in
the classified service, make rules and regulations covering
all personnel transactions, and regulate all conditions of
employment in the classified service.
***
No person shall be appointed to or promoted in the
classified service who has not been certified by the com-
mission as qualified for such appointment or promotion.
No appointments, promotions, demotions or removals in
the classified service shall be made for religious, racial or
partisan considerations.
Increases in rates of compensation authorized by the
commission may be effective only at the start of a fiscal
year and shall require prior notice to the governor, who
shall transmit such increases to the legislature as part of
his budget. The legislature may, by a majority vote of the
members elected to and serving in each house, waive the
notice and permit increases in rates of compensation to be
effective at a time other than the start of a fiscal year.
Within 60 calendar days following such transmission, the
legislature may, by a two-thirds vote of the members
elected to and serving in each house, reject or reduce
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increases in rates of compensation authorized by the com-
mission. Any reduction ordered by the legislature shall
apply uniformly to all classes of employees affected by the
increases and shall not adjust pay differentials already
established by the civil service commission. The legislature
may not reduce rates of compensation below those in effect
at the time of the transmission of increases authorized by
the commission.
***
The civil service commission shall recommend to the
governor and to the legislature rates of compensation for
all appointed positions within the executive department
not a part of the classified service.
To enable the commission to exercise its powers, the
legislature shall appropriate to the commission for the
ensuing fiscal year a sum not less than one percent of the
aggregate payroll of the classified service for the preceding
fiscal year, as certified by the commission. Within six
months after the conclusion of each fiscal year the commis-
sion shall return to the state treasury all moneys unex-
pended for that fiscal year.
The commission shall furnish reports of expenditures,
at least annually, to the governor and the legislature and
shall be subject to annual audit as provided by law.
As our Supreme Court has observed, the CSC is a
constitutionally established administrative agency that
is part of and within the executive branch. Straus, 459
Mich at 537; see also House Speaker v Governor, 443
Mich 560, 587 n 33; 506 NW2d 190 (1993). However,
that the CSC exists within the Constitution does not, as
plaintiffs would suggest, elevate the CSC to a fourth
branch of government because no fourth branch exists
and because to do so would directly violate the separa-
tion of powers provision in article 3, § 2. Straus, 459
Mich at 535-537. Nonetheless, the CSC indisputably
has the power to “regulate all conditions of employment
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in the classified civil service.” Const 1963, art 11, § 5;
see Mich State Employees Ass’n v Dep’t of Mental
Health, 421 Mich 152, 163-164; 365 NW2d 93 (1984);
Plec v Liquor Control Comm, 322 Mich 691, 694; 34
NW2d 524 (1948).
PA 349 is an amendment of PERA, which was en-
acted in 1965 pursuant to the “explicit constitutional
authorization” in Const 1963, art 4, § 48 (“The legisla-
ture may enact laws providing for the resolution of
disputes concerning public employees, except those in
the state classified civil service.”). Local 1383, Int’l
Ass’n of Fire Fighters v City of Warren, 411 Mich 642,
651; 311 NW2d 702 (1981). PERA’s dispute resolution
provisions do not apply to employees in the classified
civil service pursuant to the plain language of article 4,
§ 48. Viculin v Dep’t of Civil Serv, 386 Mich 375, 393;
192 NW2d 449 (1971) (“The Civil Service Commission
is a constitutional body possessing plenary power and
may determine, consistent with due process, the proce-
dures by which a state civil service employee may
review his grievance.”). Again, however, the Legisla-
ture, pursuant to article 4, § 49, has “the sovereign
police power to regulate the terms and conditions of
employment for the welfare of Michigan workers....”
Western Mich Univ Bd of Control v Michigan, 455 Mich
531, 536; 565 NW2d 828 (1997).
Section 4a of PERA states that “[t]he provisions of
this act as to state employees within the jurisdiction of
the civil service commission shall be deemed to apply in
so far as the power exists in the legislature to control
employment by the state or the emoluments thereof.”
MCL 423.204a. The parties disagree about the proper
interpretation and application of these provisions.
Plaintiffs and the CSC argue that article 4, § 48 pre-
cludes legislative involvement within the sphere of the
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CSC’s constitutional authority, and they extend this
argument to § 4a of PERA by maintaining that all areas
of civil service employment are exempt from all provi-
sions of PERA and that PERA has no application to the
civil service because it was born from the Legislature’s
purportedly limited power under article 4, § 48.
The plain and unambiguous language of article 4,
§ 48 grants the Legislature the power to enact a statu-
tory scheme for resolving public-sector-employee dis-
putes that arise outside the classified civil service.
Clearly, PA 349 does not address resolution of public-
employee labor disputes, and therefore does not come
within the article 4, § 48 restriction. Moreover, the plain
language of MCL 423.204a—“[t]he provisions of this act
as to state employees within the jurisdiction of the civil
service commission shall be deemed to apply in so far as
the power exists in the legislature to control employment
by the state”—clearly expresses that the legislative
powers apply to civil service employees to the extent that
the Legislature has the power to control state employ-
ment. (Emphasis added.) See, e.g., Const 1963, art 4,
§ 49. Plaintiffs’ interpretation of § 4a as a nullification
of legislative power over the civil service contravenes
the plain meaning of the statutory language. Addition-
ally, § 1 of PERA defines “public employee” as follows:
“Public employee” means a person holding a position by
appointment or employment in the government of this
state, in the government of 1 or more of the political
subdivisions of this state, in the public school service, in a
public or special district, in the service of an authority,
commission, or board, or in any other branch of the public
service, subject to the following exceptions.... [MCL
423.201(e).]
The three enumerated exceptions are as follows: (1)
employees of a private entity under a time-limited
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contract with the state, (2) public-school administrators
in specific circumstances, and (3) graduate student
research assistants when there are insufficient indicia
of an employer-employee relationship. MCL
423.201(e)(i) through (iii). Civil service employees are
public employees within the definition in MCL
423.201(e), and civil service employees do not come
within any of the enumerated exceptions.
Despite the plain constitutional provision (article 4
§ 49) and statutory language reserving a degree of
legislative control over civil service employment (MCL
423.204a), plaintiffs cite cases that purportedly hold
that PERA has no application to civil service employees,
but all those cases involved civil service employees and
resolution of employment disputes. For example, to the
extent Bonneville v Mich Corrections Org, 190 Mich
App 473, 477; 476 NW2d 411 (1991), made the assertion
that PERA does not apply to classified civil service
employees, Bonneville involved grievance resolution, so
this statement was dicta to the extent that it exempts
civil service employees from all provisions of PERA.
Further, contrary to the CSC’s argument, SEIU Local
79 v State Racing Comm’r, 27 Mich App 676, 681; 183
NW2d 854 (1970), does not broadly preclude application
of all provisions of PERA to all employees under the
CSC’s jurisdiction. It only stated that PERA and the
Michigan Employment Relations Commission’s juris-
diction did not apply to the resolution of the dispute
between the employee veterinarians and the employer
racing commissioner because the employees were under
the CSC’s jurisdiction. For these reasons, and those
that follow, we read article 11, § 5 and article 4 § 49 in
harmony and hold that, as correctly stated in MCL
423.204a, certain provisions of PERA apply to employ-
ees in the classified civil service, including those in PA
349.
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B. CIVIL SERVICE RULE 6-7.2 AND 2012 PA 349
Plaintiffs and the CSC contend that the imposition of
an agency fee is a “condition of employment” as con-
templated by article 11, § 5 and, therefore, that PA 349
impermissibly infringes on a matter within the CSC’s
constitutional authority. Defendants respond that, pur-
suant to Const 1963, article 4, § 49, “[t]he legislature
may enact laws relative to... conditions of employ-
ment” and that the CSC’s power to “regulate” condi-
tions of employment does not supersede or negate the
Legislature’s authority to enact PA 349.
The CSC has adopted rules giving it “sovereign
authority” to approve, reject, or modify a negotiated
collective-bargaining agreement. Civ Serv R 6-3.1,
6-3.5, and 6-3.6. The Civil Service Rules further state
that civil service employees have the right to “organize,
form, assist, join, or refrain from joining labor organi-
zations.” Civ Serv R 6-5.1. However, Civ Serv R 6-7.2
states that a governmental employer may enter into an
agreement with a union which provides that “as a
condition of continued employment,” an employee who
chooses not to join the union “shall pay a service fee” to
the union.
2
For decades, MCL 423.209 has granted public em-
ployees the right to form, join, or assist in labor orga-
nizations and engage in activities related to the
collective-bargaining process. MCL 423.209, as added
by 1965 PA 379; MCL 423.209(1)(a); City of Escanaba v
Labor Mediation Bd, 19 Mich App 273, 280; 172 NW2d
836 (1969). Importantly, PA 349 preserves these rights,
but also grants public employees the right to “[r]efrain
2
The amount of the fee “cannot exceed the employee’s proportionate
share of the costs of the activities that are necessary to perform its duties
as the exclusive representative in dealing with the employer on labor-
management issues.” Civ Serv R 6-7.3.
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from any or all” of these activities. MCL 423.209(1)(b).
PA 349 also added subsections (2) and (3) to section 9,
which provide as follows:
(2) No person shall by force, intimidation, or unlawful
threats compel or attempt to compel any public employee
to do any of the following:
(a) Become or remain a member of a labor organization
or bargaining representative or otherwise affiliate with or
financially support a labor organization or bargaining
representative.
(b) Refrain from engaging in employment or refrain
from joining a labor organization or bargaining represen-
tative or otherwise affiliating with or financially support-
ing a labor organization or bargaining representative.
(c) Pay to any charitable organization or third party an
amount that is in lieu of, equivalent to, or any portion of
dues, fees, assessments, or other charges or expenses
required of members of or public employees represented by
a labor organization or bargaining representative.
(3) A person who violates subsection (2) is liable for a
civil fine of not more than $500.00. A civil fine recovered
under this section shall be submitted to the state treasurer
for deposit in the general fund of this state. [MCL
423.209(2) and (3).]
Before PA 349, MCL 423.210(1) included a provision
similar to Civ Serv R 6-7.2, that a public employer could
agree with a union that those employees who chose not to
join a union must pay “a service fee equivalent to the
amount of dues uniformly required of members of the
exclusive bargaining representative.” MCL 423.210(1), as
amended by 2012 PA 53. PA 349 amended § 10 by grant-
ing rights to individual public employees, with the excep-
tion of certain police and fire employees, as follows:
(3) Except as provided in subsection (4), an individual
shall not be required as a condition of obtaining or con-
tinuing public employment to do any of the following:
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(a) Refrain or resign from membership in, voluntary
affiliation with, or voluntary financial support of a labor
organization or bargaining representative.
(b) Become or remain a member of a labor organization
or bargaining representative.
(c) Pay any dues, fees, assessments, or other charges or
expenses of any kind or amount, or provide anything of
value to a labor organization or bargaining representative.
(d) Pay to any charitable organization or third party any
amount that is in lieu of, equivalent to, or any portion of
dues, fees, assessments, or other charges or expenses
required of members of or public employees represented by
a labor organization or bargaining representative. [MCL
423.210(3).]
These legislative amendments change Michigan law
regarding compulsory union fees with respect to all
public-sector employees and employers and, therefore,
directly conflict with the CSC’s rule that permits the
government to enter into agreements with unions to
require compulsory union contributions by nonunion
public employees.
C. CONSTITUTIONAL ANALYSIS
The arguments presented are rooted in a dispute
over the phrase “conditions of employment” which
appears in both article 4, § 49 and article 11, § 5. As
discussed, Const 1963, art 11, § 5 confers on the CSC
the power to “regulate all conditions of employment in
the classified service,” but article 4, § 49 confers on the
Legislature the power to “enact laws relative to the
hours and conditions of employment.”
Plaintiff unions urge that the decision whether to
impose agency fees on nonunion employees constitutes
a condition of employment. Were we to accept this as
true, it is equally clear that what Civ Serv R 6-7.2
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authorizes also amounts to a condition for employment,
because it permits a governmental employer to require
an agency fee payment “as a condition of continued
employment,” thus permitting termination for failure
to comply. (Emphasis added.) In either case, the char-
acterization does not render PA 349 unconstitutional.
Indeed, we hold that, regardless of whether the manda-
tory payment of agency fees by nonunion civil service
employees amounts to a condition of employment or a
condition to obtain or retain employment, PA 349 is a
proper exercise of the Legislature’s constitutional au-
thority to “enact laws relative to... conditions of
employment.” Const 1963, art 4, § 49.
Our holding is compelled by a plain reading of our
Constitution and an interpretation that reasonable
minds and the great mass of people would give it. As
noted, Const 1963, art 4, § 48 provides that “[t]he
legislature may enact laws providing for the resolution
of disputes concerning public employees, except those in
the state classified civil service.” (Emphasis added.)
Const 1963, art 4, § 49 provides that “[t]he legislature
may enact laws relative to the hours and conditions of
employment.” The language of these two paragraphs,
read together and in conjunction with article 11, § 5,
clearly indicate that the people of Michigan intended for
the Legislature to retain authority over public-
employment disputes involving employees outside the
classified state civil service and over the hours and
conditions of employment of all employees, without
excluding those in the classified civil service. By ratify-
ing a Constitution containing all three provisions, the
people evinced their intent to distinguish classified civil
service employees from other public employees in some,
but not all, contexts and impose legislative checks and
balances on the CSC’s authority.
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Clearly, article 4, § 49 confers on the Legislature the
power to enact laws (“may enact”), specifications, and
requirements governing employment generally, includ-
ing civil service employment, while article 11, § 5 re-
quires the CSC to regulate conditions of employment
(“shall regulate”) consistently with the legislative en-
actments. Again, when we interpret a provision of the
Michigan Constitution, the words of that provision
“must be given their ordinary meanings.” Co Rd Ass’n
of Mich v Governor, 260 Mich App 299, 306; 677 NW2d
340 (2004) (citation and quotation marks omitted). The
ordinary meaning of the word “regulate” can be found
in the first definition of “regulate” in Merriam-
Webster’s Collegiate Dictionary:
1a: to govern or direct according to rule b (1) : to bring
under the control of law or constituted authority (2) : to
make regulations for or concerning...2 : to bring order,
method, or uniformity to...3 : to fix or adjust the time,
amount, degree, or rate of....[Merriam-Webster’s Colle-
giate Dictionary (11th ed, 2006) p 1049.]
Thus, the ordinary meaning of the word “regulate” is to
govern, direct, or control according to rule, law, or
authority. Therefore, the CSC’s power to issue rules
governing civil service employment is not limitless in
scope, but is subject to and in accordance with the
Legislature’s power to “enact laws” regarding “condi-
tions of employment.” Const 1963, art 4, § 49.
Plaintiffs argue that defendants’ emphasis on the
meaning of “regulate” imposes a “hyper-technical” con-
struction that is contrary to the common understanding
of the people who ratified the Constitution and contrary
to the caveat against finding a “dark and abstruse
meaning” in constitutional language. Traverse City, 384
Mich at 405 (citation and quotation marks omitted).
“Regulate” is not an obscure word, and its meaning as
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compared to the phrase “enact laws” is not subtle.
Clearly, the choice of words—regulate for the CSC and
enact laws for the Legislature—renders article 11, § 5
and article 4, § 49 consistent. Plaintiffs attempt to
minimize the significance of article 4, § 49 by arguing
that this provision is merely a holdover from the 1908
Constitution and the Progressive Era, when the ratifi-
ers granted the Legislature the power to “enact laws
relative to the hours and conditions under which men,
women, and children may be employed.” Const 1908,
art 5, § 29. Plaintiffs state that this provision was
intended only to clarify that the right to freedom of
contract did not override the Legislature’s police power
to enact wage, hour, and safety laws for the benefit of
workers. Plaintiffs’ argument ignores the plain lan-
guage of article 4, § 49, which grants the Legislature the
power to enact laws “relative to the hours and condi-
tions of employment.” (Emphasis added.) If the ratifiers
had intended for article 4, § 49 to limit the Legislature’s
powers to enacting wage and hour requirements, they
could have so limited the Legislature’s authority in the
Constitution.
Moreover, in contrast to article 4, § 48, which confers
on the Legislature the power to “enact laws providing
for the resolution of disputes concerning public employ-
ees, except those in the state classified civil service,”
article 4, § 49 does not provide an exception for civil
service employees. We cannot assume that the excep-
tion for civil service employees, which was purposely
placed in § 48, was inadvertently omitted from § 49. See
People v Peltola, 489 Mich 174, 185; 803 NW2d 140
(2011). Plaintiffs argue that the civil service carveout in
§ 48 was included because § 48 pertained only to public
employees and that the omission of the carveout in § 49
is therefore of no significance because § 49 applies
generally to public- and private-sector employees. How-
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ever, the breadth of § 49 actually strengthens defen-
dants’ argument. The Legislature’s authority to enact
statutes relative to the conditions of employment for all
employees, without distinguishing between the private
and public sectors, negates any inference that the
Legislature’s authority applies equally to private and
non-civil-service employment, with an implied and un-
stated exception for civil service employment.
The reference to “conditions of employment” in both
Const 1963, art 4, § 49 and art 11, § 5 can be read
consistently and without deviating from either section’s
plain language and without encroaching on or expand-
ing the authority granted constitutionally to either the
Legislature or the CSC. Const 1963, art 4, § 49 autho-
rizes the Legislature to enact laws relative to the hours
and conditions of employment generally, subject only to
the CSC’s authority to regulate conditions of employ-
ment in the classified civil service, in addition to per-
forming other specifically enumerated duties. “Where
as here, there is a claim that two different provisions of
the constitution collide, we must seek a construction
that harmonizes them both. This is so because, both
having been adopted simultaneously, neither can logi-
cally trump the other.” Straus, 459 Mich at 533 (citation
and quotation marks omitted).
In its amicus curiae brief, the CSC extensively quotes
the Official Record of the 1961 Constitutional Conven-
tion; the Report of the Michigan Citizens Advisory Task
Force on Civil Service Reform: Toward Improvement of
Service to the Public, During the Decade of the ’80’s
(July 1979); and the Citizen’s Advisory Task Force on
State Labor-Management Relations: Report to Governor
James J. Blanchard (September 1987). The CSC em-
phasizes that these historical sources reveal an intent to
limit legislative oversight of the CSC. We agree that
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these historical authorities reflect the framers’ and ratifi-
ers’ intent to grant the CSC full authority over the areas
of compensation, determination of qualifications, and
other specifications of civil service employment. However,
neither plaintiffs nor the CSC offers a satisfactory expla-
nation of how Const 1963 art 4, § 49 can coexist with
Const 1963, art 11, § 5 if the latter completely exempts the
civil service from the former. The CSC argues that article
4, § 49 is a general provision, whereas article 11, § 5 is a
specific provision and that specific provisions must control
in a case relating to their subject matter. Advisory Opin-
ion on Constitutionality of 1978 PA 426, 403 Mich 631,
639-640; 272 NW2d 495 (1978). The CSC’s
general/specific dichotomy, however, would be more accu-
rately characterized as a broad/narrow dichotomy. The
Legislature possesses the broad power to enact laws
relative to the conditions of all employment, whereas the
CSC possesses the narrow power to regulate conditions of
civil service employment. The CSC’s power to act in its
limited sphere thus does not trump the Legislature’s
broader constitutional powers.
D. CASES ADDRESSING THE AUTHORITY OF THE LEGISLATURE
AND THE CSC
Our courts have recognized the broad and exclu-
sive authority Const 1963, art 5, § 11 grants the CSC
to govern the internal conditions of civil service
employment. “The Civil Service Commission is a
constitutional body possessing plenary power and
may determine, consistent with due process, the
procedures by which a state civil service employee
may review his grievance.” Viculin, 386 Mich at 393;
see also Dudkin v Civil Serv Comm, 127 Mich App
397, 407; 339 NW2d 190 (1983) (concluding that the
CSC could fashion rules with regard to agency shop
fees at a time when such fees were permitted under a
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former version of MCL 423.210(1)).
3
Our courts have
also acknowledged that the CSC’s power and authority
are derived from the Constitution and that “its valid
exercise of that power cannot be taken away by the
Legislature.” Hanlon v Civil Serv Comm, 253 Mich App
710, 717; 660 NW2d 74 (2002); see also Crider v
Michigan, 110 Mich App 702, 723-724; 313 NW2d 367
(1981) (upholding the CSC’s constitutional authority to
impose periodic one-day layoffs to reduce payroll costs).
However, the CSC’s “powers are not unlimited.” Oakley
v Dep’t of Mental Health (On Remand), 136 Mich App
58, 62; 355 NW2d 650 (1984).
In Council No 11, our Supreme Court addressed a
conflict between a statute, MCL 15.401 et seq. (1976 PA
169, the political freedom act), and a CSC rule restrict-
ing civil service employees’ participation in political
activities. Council No 11, 408 Mich at 390-391. The
statute provided that a civil service employee had the
right to join a political party committee authorized
under state election laws, serve as a delegate to a
political party’s convention, and run for office without
first obtaining a leave of absence from employment,
while CSC Rule 7 prohibited such activities. Id. The
plaintiff unions filed a complaint against the CSC on
the ground that Rule 7 conflicted with 1976 PA 169 and
Const 1963, art 11, § 5, which guaranteed freedom of
expression rights. Id. at 391-392.
3
Though plaintiffs rely on it, the Court in Dudkin did not address the
issue raised here, namely, the CSC’s authority to impose or permit agency
shop fees under the catchall phrase “regulate all conditions of employ-
ment in the classified service” in Const 1963, art 11, § 5. At the time this
Court decided Dudkin, MCL 423.210(1), as amended by 1973 PA 25,
specifically permitted collective-bargaining agreements to require pay-
ment of a service fee as a condition of employment. Accordingly, Dudkin
did not involve the conflict between the Legislature and the CSC
presented here.
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The Court held that the ratifiers of article 11, § 5
clearly did not intend to grant the CSC the power to
abridge civil service employees’ right to participate in
the political process:
We are persuaded that neither the history of the adop-
tion of a civil service system in Michigan, including as it
does the voice of the people expressed indirectly through
the Legislature in 1937 and 1939 and directly in the 1940
constitutional amendment and the 1963 constitution, nor a
common-sense reading of the “plain language” of art 11,
§ 5, interpreted according to familiar rules of constitutional
construction, support the defendant’s claim of authority to
regulate, indeed prohibit, any off-duty political activity by
state classified employees. [Id. at 403.]
After discussing the historical context of the 1940
amendment, the Court opined that the plain language
of Const 1963, art 11, § 5, and “more precisely the
meaning we think [the constitutional language] had for
the people who adopted it,” was of greater significance
than the history of civil service in Michigan. Id. at
404-405 (emphasis omitted). Reviewing the rules of
constitutional interpretation, the Court concluded that
“[a] grant of power to an administrative agency to
pervasively curtail the political freedoms of thousands
of citizens should not be easily inferred from a consti-
tutional provision so facially devoid of any such lan-
guage.” Id. at 406. The Court was unable to “conclude,
with any degree of confidence, that ‘the great mass of
the people themselves would’ understand the language
of art 11, § 5, upon which defendants rely, to be a grant
of power to defendants to forbid off-duty political activ-
ity.” Id. The Court stated that interpreting the lan-
guage of article 11, § 5 “as a grant of power to curtail
political freedom of speech and association, at home,
off-duty, would indeed assign the words used a ‘dark
[and] abstruse meaning’.” Id. (alteration in original).
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While the CSC has a grant of plenary power, “it is to be
exercised with respect to determining the conditions ‘of
employment’, not conditions for employment.” Id. The
Court ruled that the CSC’s power does not include the
power to prohibit off-duty political activities. Id. at 407.
Council No 11 resolved a direct conflict between a
CSC rule and a legislative enactment, holding the
legislation valid. Other cases have addressed the Legis-
lature’s power to enact laws applicable to all employees,
including those in the classified civil service. In Dep’t of
Civil Rights ex rel Jones v Dep’t of Civil Serv, 101 Mich
App 295, 297-298; 301 NW2d 12 (1980), three female
civil service employees filed complaints with the Michi-
gan Department of Civil Rights alleging that the long-
term disability insurance plan the Department of Civil
Service offered to employees discriminated against
women by denying disability benefits for disabilities
related to pregnancy, childbirth, miscarriage, or abor-
tion. After the Michigan Civil Rights Commission
(CRC) determined that the disability plan violated the
Fair Employment Practices Act, MCL 423.301 et seq.,
and its successor statute, the Michigan Civil Rights Act,
MCL 37.2102 et seq., the Department of Civil Service
filed an appeal in circuit court for de novo review. The
circuit court reversed the CRC’s order, concluding that
the civil rights statutes did not apply to classified state
employees. Jones, 101 Mich App at 298. On appeal, this
Court rejected the argument that the CSC’s plenary
jurisdiction under article 11, § 5 precluded the CRC’s
jurisdiction over a civil rights dispute in the civil
service. Citing Council No 11, 408 Mich 385, the Court
noted that “the civil service’s powers are not without
limit.” Jones, 101 Mich App at 300. The Court held that
“[t]he establishment of the CRC expressed the intent of
the people of Michigan to end invidious forms of discrimi-
nation through the efforts of a single commission” and
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that the CRC’s authority “to carry out its constitutional
mandate to end discrimination” would be weakened if
the CSC had exclusive jurisdiction over all employment
concerns. Id. at 301.
In Marsh v Dep’t of Civil Service, 142 Mich App 557,
559-560; 370 NW2d 613 (1985), the CSC denied the
plaintiff’s grievances for race, sex, and disability dis-
crimination in promotion. The plaintiff filed suit in
circuit court alleging violations of the Michigan Civil
Rights Act and what was then called the Handicappers’
Civil Rights Act (now the Persons with Disabilities Civil
Rights Act), MCL 37.1101 et seq. Id. at 560. The circuit
court dismissed the lawsuit on the ground that the CSC
held exclusive subject-matter jurisdiction over the
plaintiff’s claims. Id. at 560-561. Similar to the position
the CSC takes here, the Department of Civil Service
argued that the antidiscrimination statutes did not
apply to state employees in the classified state civil
service because article 11, § 5 preempted and super-
seded any legislation governing employment conditions
of civil service employees. Id. at 563. This Court
adopted the reasoning that it employed in Jones, 101
Mich App 295. The Court in Marsh stated:
Although Const 1963, art 4, § 48, precludes the Legisla-
ture from enacting laws providing for the resolution of
employment disputes concerning public employees in the
state classified civil service, this provision must be read in
conjunction with the provision creating the Civil Rights
Commission and the equal protection/antidiscrimination
provision of our constitution. Provisions of the constitution
should be read in context, not in isolation, and they should
be harmonized to give effect to all. Saginaw County v State
Tax Comm, 54 Mich App 160; 220 NW2d 706 (1974),
vacated on other grounds 393 Mich 779; 224 NW2d 283
(1974), aff’d sub nom Emmet County v State Tax Comm 397
Mich 550; 244 NW2d 909 (1976). [Marsh, 142 Mich App at
566.]
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At the heart of these cases is “the fact that the
constitution expressly mandates the Legislature to
implement constitutional provisions prohibiting dis-
crimination and securing civil rights of all persons.”
Dep’t of Transp v Brown, 153 Mich App 773, 781; 396
NW2d 529 (1986). Therefore, in addition to the funda-
mental constitutional principles articulated in Council
No 11, defendants’ position is supported by caselaw
holding that laws of general application do not encroach
on the CSC’s jurisdiction when applied to civil service
employees. In Jones, 101 Mich App 295, and Marsh, 142
Mich App 557, this Court held that the Civil Rights
Commission held exclusive subject-matter jurisdiction
over the plaintiffs’ claims of employment discrimina-
tion arising under statutory civil rights laws and re-
jected the CSC’s claim that the CSC held exclusive
jurisdiction over employment disputes in the civil ser-
vice.
Plaintiffs argue that these cases are not relevant
because the decisions in Jones and Marsh were based on
the constitutional authority of the Civil Rights Commis-
sion, which placed the Civil Rights Commission on
equal footing with the CSC. Plaintiffs’ argument misses
the salient point, however, that the civil rights statutes
enacted by the Legislature to ban workplace discrimi-
nation applied equally to civil service employees, not-
withstanding the CSC’s authority to “regulate all con-
ditions of employment in the classified service.” Const
1963, art 11, § 5. If the antidiscrimination statutes had
encroached on the CSC’s exclusive jurisdiction to regu-
late, it would not have been necessary for the Court to
resolve the dispute over the proper forum for resolving
disputes under the civil rights statutes.
Indeed, a wide array of statutes governing employ-
ment apply with equal force to private-sector and
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public-sector employees, with no exception for civil
service employees. See, e.g., the Worker’s Disability
Compensation Act, MCL 418.101 et seq. (stating in MCL
418.111 that “[e]very employer, public and private, and
every employee, unless herein otherwise specifically
provided, shall be subject to the provisions of this act
and shall be bound thereby”), and the Michigan Em-
ployment Security Act, MCL 421.1 et seq. Availability of
benefits to compensate injured workers and unem-
ployed workers are part of employment conditions, and
the statutes providing these benefits apply to civil
service employees. Moreover, the Legislature has passed
other laws related to hours and conditions of employ-
ment that affect private-sector, governmental, and clas-
sified civil service employees alike, including laws relat-
ing to licensing, public health, child labor, political
freedoms, and occupational health and safety. Thus,
while the CSC has the specific and plenary power to
regulate conditions of employment, the Legislature has
regularly exercised, and our courts have upheld, its
broad constitutional authority to enact laws, including
those affecting the hours and conditions of employment
for classified civil service employees.
E. THIS ISSUE IS UNIQUELY WITHIN THE PROVINCE
OF THE LEGISLATURE
As discussed, our Constitution confers on the CSC
the power to regulate conditions of employment in the
classified civil service, and the Legislature has the
authority to enact laws affecting conditions of employ-
ment. This leads to the specific question here, which is
where agency fees fit within this “sharing” of constitu-
tional responsibilities and whether the Legislature
acted within its constitutional authority in enacting PA
349 as it pertains to the classified civil service. In
further considering whether this is within the province
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of the Legislature or the CSC, we must examine the
nature of agency fees and what interests are affected by
PA 349.
In the arena of public-sector employment, the gov-
ernment is, quite obviously, the employer. It is well
settled that the government may not violate the free
speech or free association rights of its citizens, and
employees are citizens subject to protection. Further,
the government, as employer, may not compel speech it
favors or prohibit speech it disfavors by forcing employ-
ees to support or prohibiting employees from support-
ing ideological or political causes. To do so would violate
the civil liberties and First Amendment rights of em-
ployees.
On the basis of these principles, it has long been the
subject of litigation whether a governmental employer
may require an employee to pay money to a union if the
worker opposes the political or ideological views of the
union. While various state and federal courts have
questioned the constitutionality of agency fee provi-
sions in the public sector, regardless of the merits of the
underlying debate the question of their elimination is
certainly one that implicates significant constitutional
and public-policy questions. For more than 35 years,
from Abood v Detroit Bd of Ed, 431 US 209; 97 S Ct
1782; 52 L Ed 2d 261 (1977), to Knox v SEIU, Local
1000, 567 US ___; 132 S Ct 2277; 183 L Ed 2d 281
(2012), the United States Supreme Court has reiterated
that compulsory funding of unions by public-sector
employees raises critical First Amendment concerns.
The primary concern repeatedly advanced by nonunion
plaintiffs in Abood and its progeny is that unions
indisputably spend union dues on political and ideologi-
cal causes with which employees may disagree. Abood,
431 US at 212-213. And as the Abood Court opined:
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Our decisions establish with unmistakable clarity that
the freedom of an individual to associate for the purpose of
advancing beliefs and ideas is protected by the First and
Fourteenth Amendments. Equally clear is the proposition
that a government may not require an individual to relin-
quish rights guaranteed him by the First Amendment as a
condition of public employment.[Id. at 233-234 (citations
omitted) (emphasis added).]
Since Abood, the Supreme Court has endeavored to
protect the First Amendment rights of governmental
employees through the requirement of procedural safe-
guards from “compulsory subsidization of ideological
activity.” Id. at 237; see also Chicago Teachers Union v
Hudson, 475 US 292; 106 S Ct 1066; 89 L Ed 2d 232
(1986).
Part of the law in this area is settled, and part
remains in flux. What is settled is that a governmental
employer cannot force a dissenting worker, as a condi-
tion of employment, to financially support political
causes of the union. However, the governmental em-
ployer may require the employee to pay a fee for the
union’s costs for collective bargaining as long as the fee
is not used to advance political or ideological causes to
which the worker objects. The question that remains in
contention is how a union accounts for that portion of
an agency fee that is spent on constitutionally permis-
sible collective bargaining versus unconstitutional ex-
penditures on politics, how an employee may pursue the
question of how fees are spent, and to what extent a
union must reveal its expenditures. Those who oppose
compulsory union fees assert that there is no adequate
system to account for whether the fees are used only for
collective bargaining and that, in reality, as a condition
of remaining employed, employees must financially
support political causes, which violates their First
Amendment rights of free speech and political associa-
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tion. Those who support mandatory agency fees con-
tend that failing to require payments from each em-
ployee permits free riders who pay nothing for collective
bargaining but enjoy the benefits of union-backed ne-
gotiations and that the methods used to determine how
agency fees are spent interfere with union support of
political and other causes, thus infringing on their
rights of free speech and association.
Michigan has decided to leave the fray. With PA 349,
the Legislature has made all contributions to public-
sector unions voluntary, thus removing political and
ideological conflict from public employment and elimi-
nating the repeated need to decide, on a case-by-case
basis, whether unions have properly allocated funds.
The government as employer may no longer require
public employees to pay money to unions whose politics
or ideological causes the employees oppose, and, at the
same time, unions will no longer have to be wary of
potential challenges to their financial contributions and
may spend voluntary member dues as they see fit,
without governmental oversight.
Importantly, the very reason the people adopted
Const 1963, art 11, § 5 was to provide for a merit-based
system of governmental hiring and employment, elimi-
nate politics, and provide for an apolitical body to
regulate issues regarding employee qualifications, pro-
motion, and pay, which are matters completely outside
the substance and application of PA 349. Further, as
discussed, if agency fees are a condition of employment,
as plaintiffs suggest, they are also, undoubtedly, a
condition for employment when an employee may be
terminated for failure to pay. In Council No 11, our
Supreme Court made clear that the CSC may regulate
conditions of employment, not conditions for employ-
ment, which are matters for the Legislature. Coun-
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cil No 11, 408 Mich at 406. Thus, the elimination of
compulsory agency fees was well within the Legisla-
ture’s authority. Further, because the United States
Supreme Court has long held that agency fees implicate
governmental employees’ constitutional rights and im-
portant questions of public policy, the principle applies
with equal force that matters like the one at issue here
are within the province of the Legislature:
The power, indeed the duty, to protect and insure the
personal freedoms of all citizens, including the rights of
free speech and political association, is reposed in the
Legislature as one of the three co-equal branches of gov-
ernment by art 1 of the Michigan Constitution. The enact-
ment of laws designed to assure the protection and en-
hancement of such rights is therefore a particularly proper
legislative concern. [Id. at 394-395.]
And beyond the constitutional concerns implicated by
the imposition of agency fees by governmental employ-
ers and unions, as a matter of public policy the decision
whether to continue the practice is also within the
Legislature’s power. As the United States Supreme
Court explained in Abood:
Congress, acting within its constitutional powers, has
the final say on policy issues. If it acts unwisely, the
electorate can make a change. The task of the judiciary
ends once it appears that the legislative measure adopted is
relevant or appropriate to the constitutional power which
Congress exercises. [Abood, 341 US at 225 n 20.]
Accordingly, we hold that, contrary to plaintiffs’ claim,
it is within the authority of the Legislature to pass laws
on public-policy matters in general and particularly
those, as here, that unquestionably implicate constitu-
tional rights of both union and nonunion public employ-
ees. The language of Const 1963, art 11, § 5, the history
of civil service laws in the state of Michigan, and the
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language of Const 1963, art 4, §§ 48 and 49 do not
preclude the Legislature from enacting PA 349 and
applying this statute to the classified civil service. The
CSC’s power to regulate civil service employment does
not infringe on the legislative power under article 4,
§ 49 to enact laws relative to conditions of employment,
and applying those laws toward all employment in the
state, public and private, civil service or not civil ser-
vice. Finally, Michigan caselaw fully supports the prin-
ciple that the Legislature, as the policymaking branch
of government, has the power to pass labor laws of
general applicability that also apply to classified civil
service employees. For these reasons, we hold that 2012
PA 349 is constitutional as applied to classified civil
service positions in Michigan.
IV. RESPONSE TO THE DISSENT
Respectfully, our dissenting colleague gives the im-
pression that agency fees are akin to CSC rules requir-
ing a certain educational degree for promotion, specify-
ing procedures for drafting qualifying examinations, or
establishing job performance ratings. If that were true,
there would be no demonstrations in Lansing or, in-
deed, across the country about the very nature of the
fees at issue and the myriad constitutional and public-
policy questions that flow from their imposition or
abolishment. Importantly, our holding does not seek to
devalue, avoid, or undermine the power of the CSC as
the dissent would suggest. Rather, while recognizing
the complexity of the issue before us, we acknowledge
that, in varying ways, both the CSC and the Legislature
have authority over the welfare of Michigan employees
but, on this particular issue, we hold that the decision
whether public-sector employees, including those in the
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classified civil service, must pay fees to unions is within
the Legislature’s scope of authority.
The dissent relies on quotations about the CSC’s
authority in support of the notion that the CSC “reigns
supreme” in all aspects of civil service employment, but
the quotations are dicta and the cases are simply
inapposite. The dissent cites Dudkin as a “particularly
pertinent case” regarding the CSC’s authority but, as
the Court itself explained, the issue in Dudkin was
whether the CSC “failed to follow its own rules and
regulations in promulgating a rule permitting negotia-
tion of an agency shop fee with the union.” Dudkin, 127
Mich App at 401 (emphasis added). The case arose when
the CSC unilaterally changed a rule to dispense with its
own requirement that a majority of employees must
agree before an agency fee could be imposed. Id.at
401-403. This Court held that the CSC’s own rules did
not require the CSC to notify each employee about rule
changes and that the new rule did not violate the CSC’s
obligations under article 11, § 5. Id. at 406-407. The
panel noted that the imposition of agency fees was
upheld in Abood and observed that designating a union
and imposing “an agency shop fee clearly bears on the
efficiency of civil service operations.” Id. at 408-409.
The dissent’s reliance on Dudkin is misplaced be-
cause not only is it not binding on this Court under
MCR 7.215(J)(1), the law has since changed. Dudkin
was decided at a time when our Legislature explicitly
permitted governmental employers and unions to im-
pose agency fees on public employees under the former
version of MCL 423.210(1), but this is no longer the law.
Dudkin was also decided before the United States
Supreme Court established the procedural safeguards
in Hudson, which not only supersede any civil service
rule to the contrary, but also include notice require-
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ments for the collection of fees from nonunion employ-
ees, specifically to avoid infringement of their constitu-
tional rights. Hudson, 475 US at 303. Moreover, Dudkin
did not address, much less decide, a dispute over the
rulemaking power of the CSC and the lawmaking power
of the Legislature that would, in any way, answer
whether the Legislature’s enactment of PA 349 applies
to classified civil service employees.
The same holds true of Crider, 110 Mich App 702.
Because of a state financial crisis, and to avoid long-
term layoffs, in Crider the CSC bypassed its own rules
and enacted a new rule permitting layoffs for classified
employees who were not performing immediate essen-
tial public services and who were not covered by con-
trary collective-bargaining agreements. Id. at 708-709.
Michigan State Police command officers sued the CSC
and argued that the CSC exceeded its powers under
article 11, § 5. Id. at 710, 714-715. This Court ruled that
the CSC had the authority to temporarily suspend its
own rules and regulations in an emergency financial
situation and that, pursuant to its authority to regulate
conditions of employment, the CSC could impose a
layoff program for certain classified employees. Id.at
723-730.
Crider did not involve agency fees or legislation
conflicting with a CSC rule, and it appears that the
dissent cites it, along with Dudkin, in a search for any
available language stating that the CSC has broad
constitutional powers. We do not dispute the cited
language or the point that the CSC has extensive power
within its scope of authority, but the dissent seems
unable to tolerate the notion that both the CSC and the
Legislature have constitutional authority over public-
employment matters. Indeed, notably absent from the
dissenting opinion is an acknowledgement of the many
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Michigan appellate decisions upholding legislative “in-
cursion” into what the dissent describes as the CSC’s
constitutional “domain.” The Legislature has enacted
various laws that apply to all Michigan employees,
including those in the classified civil service, related to
equal protection, antidiscrimination, civil rights, dis-
ability rights, political freedom, occupational health
and safety, and others.
4
Again, as the opinion states, we
recognize the authority of both the CSC and the Legis-
lature and, while the dissent declines to do the same,
the critical and difficult question here is the nature of
the matter at issue and whether it falls within the
province of the Legislature or the CSC.
In addition to its denial of any overlapping or shared
authority, it appears that the dissent underplays the
importance of agency fees on the basis of its fundamen-
tally erroneous view that our courts have “resound-
ingly” decided that agency fees do not burden the
exercise of First Amendment rights. To the contrary, as
the United States Supreme Court made clear in Knox,
4
See Council No 11, 408 Mich 385; Marsh, 142 Mich App 557; Jones,
101 Mich App at 301, 304 (holding that the Civil Rights Commission has
jurisdiction over discrimination claims brought by classified civil service
employees and that the Department of Civil Service’s failure to provide
benefits violated the antidiscrimination provisions of the Fair Employ-
ment Practices Act and the successor Civil Rights Act); Brown, 153 Mich
App at 782 (“In light of Const 1963, art 4, § 51, which directs the
Legislature to protect and promote public health for all persons, we
conclude that the prohibition of legislation for resolution of employment
disputes of classified civil service employees does not extend to the area
of occupational health and safety.”) (citation omitted); Civil Serv Comm
v Dep’t of Labor, 424 Mich 571, 625; 384 NW2d 728 (1986) (“[T]he power
of the Civil Service Commission to ‘regulate all conditions of employment
in the classified service’ does not preclude the Legislature from eliminat-
ing a position once it is classified as within the civil service system.”);
Walters v Dep’t of Treasury, 148 Mich App 809, 815; 385 NW2d
695 (1986) (“[T]he state, its subdivisions and agencies are ‘employers’
covered by the [Civil Rights Act].”).
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[w]hen a State establishes an “agency shop” that exacts
compulsory union fees as a condition of public employment,
“[t]he dissenting employee is forced to support financially
an organization with whose principles and demands he
may disagree.” Ellis [v Brotherhood of Railway, Airline &
Steamship Clerks, 466 US 435, 455; 104 S Ct 1883; 80 L Ed
2d 428 (1984)]. Because a public-sector union takes many
positions during collective bargaining that have powerful
political and civic consequences,... the compulsory fees
constitute a form of compelled speech and association that
imposes a “significant impingement on First Amendment
rights.” [Id.] Our cases to date have tolerated this “im-
pingement,” and we do not revisit today whether the
Court’s former cases have given adequate recognition to
the critical First Amendment rights at stake. [Knox, 567
US at ___; 132 S Ct at 2289.]
Thus, in direct opposition to the dissent’s assertion, the
Supreme Court has explicitly declared that agency fees
impose a “significant” burden on “critical” First
Amendment rights. Id. at ___; 132 S Ct at 2289. That
fact has been decisively established. What remains in
continual litigation is how to determine when agency
fees are spent on matters not germane to purposes of
collective bargaining, how to protect the constitutional
rights of those employees who oppose funding speech on
political or ideological matters the union espouses, and
how to also protect the constitutional rights of employ-
ees who wish to join unions and support those views.
That is, since Abood, our courts have repeatedly
grappled with questions about which public-sector
union expenses are chargeable to nonmembers, which
are nonchargeable, and how employees may vindicate
their rights.
5
5
Knox, 567 US ___; 132 S Ct 2277; Davenport v Washington Ed Ass’n,
551 US 177; 127 S Ct 2372; 168 L Ed 2d 71 (2007); Air Line Pilots Ass’n
v Miller, 523 US 866; 118 S Ct 1761; 140 L Ed 2d 1070 (1998); Lehnert v
Ferris Faculty Ass’n, 500 US 507; 111 S Ct 1950; 114 L Ed 2d 572 (1991);
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In light of the First Amendment rights at stake, the
Michigan Legislature has made the policy decision to
settle the matter by giving all employees a right to
choose. This is quite the opposite of “advanc[ing] a
political agenda” as described by the dissent; to the
contrary, it is a decision to further remove politics from
public employment and to end all inquiry or debate
about how public-sector union fees are spent. Again, at
issue here is whether our Legislature may prohibit
agency fees for classified civil service employees when a
civil service rule permits them. The CSC is an agency
created to ensure a merit system in public employment
and abolish political cronyism in hiring and promotion,
which it does through rules regarding matters such as
pay grades, conditions for promotion, and dispute reso-
lution. A legislature in a representative constitutional
republic speaks for the people on matters of significant
public concern. Our conclusion, as fully set forth in this
Hudson, 475 US 292; Abood, 431 US 209; Merritt v Int’l Ass’n of
Machinists & Aerospace Workers, 613 F3d 609 (CA 6, 2010); Scheffer v
Civil Serv Employees Ass’n, 610 F3d 782 (CA 2, 2010); Locke v Karass,
498 F3d 49 (CA 1, 2007); Cummings v Connell, 402 F3d 936 (CA 9, 2005);
Otto v Pennsylvania State Ed Ass’n-NEA, 330 F3d 125 (CA 3, 2003);
Wessel v City of Albuquerque, 299 F3d 1186 (CA 10, 2002); Shea v Int’l
Ass’n of Machinists & Aerospace Workers, 154 F3d 508 (CA 5, 1998);
Abrams v Communications Workers of America, 313 US App DC 385; 59
F3d 1373 (1995); Dashiell v Montgomery Co, 925 F2d 750 (CA 4, 1991).
Further, while the United States Supreme Court has thus far declined to
rule agency fees unconstitutional per se, it is clear that a “union’s
‘collection of fees from nonmembers is authorized by an act of legislative
grace’....”Knox, 567 US at ___; 132 S Ct at 2291 (citation omitted.) And
a state legislature clearly has the constitutional right to make the policy
decision to abolish the requirement of union membership and prohibit
compulsory agency fees. Davenport, 551 US at 184; Lincoln Fed Labor
Union v Northwestern Iron & Metal Co, 335 US 525; 69 S Ct 251; 93 L Ed
2d 212 (1949). Moreover, though the dissent wrongly urges that it makes
no difference whether agency fees constitute a condition “of” employ-
ment or “for” employment, again, our Supreme Court stated otherwise in
Council No 11, 408 Mich at 406.
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opinion, is premised on the authoritative boundaries of
the Legislature and the CSC as defined in our Consti-
tution, but the dissent begs further comment on the
effect of its position. By enacting PA 349, the Legisla-
ture made a choice and thereby spoke for the people of
Michigan. A subsequent, duly elected Legislature may
decide that PA 349 is contrary to the will of the people
and can change the law or, if dissatisfied, citizens
themselves may reject PA 349 through referendum or
propose a new law through initiative. Simply stated, it
would strip this power away from the people and
eliminate their collective voice on a matter of constitu-
tional importance were we to accept the dissent’s view
that four unelected, unaccountable members of an
executive agency have the authority to decide the
matter, outside the public arena, when the Constitution
gives that agency no such power. While we do not
question the CSC’s authority within the limited scope
set forth by the people in our Constitution, Viculin, 386
Mich at 393, for the reasons set forth in the opinion, we
hold that the Legislature has the authority to enact
legislation with regard to agency fees and that the
legislation, 2012 PA 349, applies to employees in the
classified state civil service.
D
ONOFRIO
, J., concurred with S
AAD
,P.J.
G
LEICHER
,J.(dissenting). Article 11, § 5 of the 1963
Michigan Constitution establishes the Civil Service
Commission (CSC) as an independent constitutional
entity and broadly empowers the CSC to govern the
classified state civil service. A comment in the Address
to the People explained that the CSC’s constitutional
framework was “designed to continue Michigan’s na-
tional leadership...inpublic personnel practice, and to
foster and encourage a career service in state govern-
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ment.” 2 Official Record, Constitutional Convention
1961, p 3405. An integral component of article 11, § 5
vests the CSC with the authority to “make rules and
regulations covering all personnel transactions, and
regulate all conditions of employment in the classified
service.”
Pursuant to its regulatory authority, the CSC autho-
rizes “employees in eligible positions to engage in a
form of collective bargaining....” Civ Serv R 6-1.1.
Eligible classified employees “may organize, form, as-
sist, join, or refrain from joining labor organizations.”
Civ Serv R 6-5.1. If a union-eligible employee opts out of
union membership, Civ Serv R 6-7.2 permits the CSC to
collect from the employee a service fee, also called an
agency fee.
1
Agency fees defray the costs associated with
collective bargaining and other union activities.
2012 PA 349 (PA 349) amended the public employ-
ment relations act (PERA), in part prohibiting public
employers from requiring union membership and as-
sessing agency fees against nonunion employees. The
issue presented in this declaratory judgment action is
whether PA 349’s agency-fee provision applies to the
classified civil service.
The majority holds that because article 4, § 49 of the
1963 Michigan Constitution permits the Legislature to
“enact laws relative to the hours and conditions of
employment,” PA 349 trumps the CSC’s agency-fee
rule: “the CSC’s power to issue rules governing civil
1
Specifically, the rule provides:
Nothing in this rule precludes the employer from making an
agreement with an exclusive representative to require, as a
condition of continued employment, that each eligible employee in
the unit who chooses not to become a member of the exclusive
representative shall pay a service fee to the exclusive representa-
tive. [Civ Serv R 6-7.2.]
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service employment is not limitless in scope, but is
subject to and in accordance with the Legislature’s
power to ‘enact laws’ regarding ‘conditions of employ-
ment.’ ” Despite the expansive rulemaking power
vested in the CSC by article 11, § 5, the majority asserts
that “it is within the authority of the Legislature to pass
laws on public-policy matters in general and particu-
larly those, as here, that unquestionably implicate
constitutional rights of both union and nonunion public
employees.”
I believe that 2012 PA 349 unconstitutionally in-
fringes on the CSC’s power to “regulate all conditions of
employment in the classified service.” Const 1963, art
11, § 5. That agency fees may “implicate” constitutional
rights does not empower the Legislature to exceed its
constitutional authority. Therefore, I respectfully dis-
sent.
I. THE CONSTITUTIONAL FRAMEWORK
Const 1963, art 11, § 5 describes the scope of the
classified civil service, establishes the CSC’s powers,
and invests the CSC with regulatory independence. Its
12 paragraphs elucidate the CSC’s unique, autonomous
role in our constitutional system. The Constitution’s
framers anticipated that the CSC would remain de-
tached from partisanship (“The civil service commis-
sion shall be non-salaried and shall consist of four
persons, not more than two of whom shall be members
of the same political party, appointed by the governor
for terms of eight years, no two of which shall expire in
the same year.”). Promotion or appointment in the civil
service hinges on merit rather than “religious, racial or
partisan considerations.” Compensation increases rec-
ommended by the CSC may be rejected only upon a
2
/
3
vote of “the members elected to and serving in each
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house....”TheLegislature’s power to limit the CSC’s
own budget is also substantially constrained (“To en-
able the commission to exercise its powers, the legisla-
ture shall appropriate to the commission for the ensu-
ing fiscal year a sum not less than one percent of the
aggregate payroll of the classified service for the pre-
ceding fiscal year, as certified by the commission.”).
These elements of article 11, § 5 animate the framers’
intent to shield this State’s skilled, loyal, high quality
work force from politically motivated meddling.
The 1963 Constitution established the CSC’s unique
independence to ensure that the political preferences of
the Governor or the Legislature would not infect the
administration of the classified work force. Article 11,
§ 5 deliberately insulates the management of the clas-
sified civil service from political partisanship. The ma-
jority’s acknowledgment that PA 349’s substance has
engendered “demonstrations in Lansing [and], indeed,
across the country” confirms the fundamentally politi-
cal nature of the statute and decisively contradicts the
majority’s claim that the Legislature acted merely to
“remove politics from public employment.”
The fourth paragraph of article 11, § 5 is at the
center of this dispute. This provision enables the CSC to
wield the comprehensive authority bestowed upon it by
the Constitution:
The commission shall classify all positions in the classi-
fied service according to their respective duties and respon-
sibilities, fix rates of compensation for all classes of posi-
tions, approve or disapprove disbursements for all personal
services, determine by competitive examination and per-
formance exclusively on the basis of merit, efficiency and
fitness the qualifications of all candidates for positions in
the classified service, make rules and regulations covering
all personnel transactions, and regulate all conditions of
employment in the classified service. [Emphasis added.]
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The CSC’s prerogative to allow the assessment of
agency fees flows from this delegation of regulatory
power.
The majority asserts that PA 349 constitutes a
“proper exercise of the Legislature’s constitutional au-
thority” because it embodies a law relative to the hours
and conditions of employment. Furthermore, the ma-
jority reasons, the statute falls “uniquely within the
province of the Legislature” because the Legislature
possesses “ ‘[t]he power, indeed the duty, to protect and
insure the personal freedoms of all citizens, including
the rights of free speech and political association....’”
Quoting Council No 11, AFSCME v Civil Serv Comm,
408 Mich 385, 394; 292 NW2d 442 (1980).
In my view, the majority misapprehends the Legisla-
ture’s constitutional role, disregards the plain language
of Const 1963, art 11, § 5, and ignores basic separation-
of-powers principles.
II. THE LEGISLATURE’S CONSTITUTIONAL ROLE
The majority’s first fundamental error casts the
Legislature as the branch of government “uniquely”
assigned by the Constitution to ascertain the constitu-
tional merits and demerits of the CSC’s agency-fee rule.
Whether agency fees actually violate First Amendment
rights is first and foremost a legal question. The judicial
branch has resoundingly answered that question in the
negative. No less an authority than the United States
Supreme Court has repeatedly reaffirmed that a state
employer may require the payment of agency fees as
long as the union uses the fees for nonideological,
nonpolitical collective-bargaining activity. Lehnert v
Ferris Faculty Ass’n, 500 US 507; 111 S Ct 1950; 114 L
Ed 2d 572 (1991); Chicago Teachers Union v Hudson,
475 US 292; 106 S Ct 1066; 89 L Ed 2d 232 (1986);
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Abood v Detroit Bd of Ed, 431 US 209; 97 S Ct 1782; 52
L Ed 2d 261 (1977).
2
Public-sector agency fees devoted
to collective-bargaining purposes are wholly unobjec-
tionable from a First Amendment standpoint. Indeed,
none of the parties in this case has even hinted that the
CSC’s agency-fee rule improperly imposes charges used
for political activity or that the rule conflicts in any
manner with the First Amendment. This salient fact
reinforces that the Legislature’s decision to abolish
mandatory agency fees rests solely on a political calcu-
lus born of a dislike for unions rather than a First
Amendment analysis. Cloaking PA 349 in “right to
choose” garb cannot disguise that its purpose is to
interfere with the CSC’s judgment that agency fees
serve a positive, productive purpose in the classified
work force.
This case does not involve a substantive challenge to
the CSC’s agency-fee rule. Rather, the Legislature’s
ability to abolish agency fees in the civil service must be
measured against the Legislature’s constitutional au-
thority to make a different political choice than that
made by the CSC. Accordingly, whether regulation of
2
Notably Abood and Lehnert involved the constitutionality of previous
versions of PERA. In Abood, the United States Supreme Court generally
upheld the constitutionality of PERA’s agency-shop provision. In Leh-
nert, the United States Supreme Court considered the constitutionality of
PERA’s compulsory agency fees. The Court held in part that “a local
bargaining representative may charge objecting employees for their pro
rata share of the costs associated with otherwise chargeable activities of
its state and national affiliates, even if those activities were not per-
formed for the direct benefit of the objecting employees’ bargaining
unit.” Lehnert, 500 US at 524. More recently, the Supreme Court held
that public-sector unions may collect agency fees as long as the unions
observe various procedural requirements “to ensure that an objecting
nonmember can prevent the use of his fees for impermissible purposes.”
Davenport v Washington Ed Ass’n, 551 US 177, 181; 127 S Ct 2372; 168
L Ed 2d 71 (2007).
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agency fees falls within the province of the Michigan
Legislature depends on the manner in which the Michi-
gan Constitution separates and delegates power. Our
Constitution disperses the powers of government and
limits their exercise pursuant to article 3, § 2: “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 pro-
vided in this constitution.” “Because the [CSC’s] grant
of power is derived from the constitution, its valid
exercise of power cannot be taken away by the Legisla-
ture.” Livingston Co Bd of Social Servs v Dep’t of Social
Servs, 208 Mich App 402, 408; 529 NW2d 308 (1995).
Thus, the Legislature’s interest in vindicating the
First Amendment rights of certain classified civil ser-
vants remains subject to the Legislature’s constitu-
tional ability to exercise its lawmaking authority in the
CSC’s field. I believe that the Legislature lacks the
power to advance a political agenda by intruding on the
constitutional prerogatives expressly reserved to the
CSC by Const 1963, art 11, § 5. That the civil service
rule admits of no First Amendment infirmity reinforces
my conclusion.
Agency fees subsidize collective bargaining. The CSC
has determined that collective bargaining enhances the
employment conditions of its work force. Because this
judgment comports with the CSC’s constitutional au-
thority to “regulate all conditions of employment” ap-
plicable to the classified civil service, Civ Serv R 6-7.2
constitutes a legitimate exercise of the CSC’s power.
3
By
3
To borrow the majority’s term, any incursion into the CSC’s
collective-bargaining rules also “implicates” article 4, § 48, which permits
the Legislature to pass laws “providing for the resolution of disputes
concerning public employees, except those in the state classified civil
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overriding the CSC’s judgment concerning the need for
agency fees, the Legislature has unconstitutionally
usurped the CSC’s constitutionally granted rulemaking
authority. I would hold that Const 1963, art 11, § 5
divests the Legislature of the power to impose the
agency-fee restrictions contained in 2012 PA 349 on the
classified civil service.
III. THE CSC’S CONSTITUTIONAL ROLE
The CSC’s establishment as a constitutional entity
reflects a purposeful determination that the CSC would
possess “plenary and absolute powers in its field.”
Viculin v Dep’t of Civil Serv, 386 Mich 375, 393, 398;
192 NW2d 449 (1971). Consequently, the Legislature is
“without power to regulate the internal procedures of
the [CSC] and this fact is recognized in Const 1963, art
4, § 48[.]” Id. at 393.
The Supreme Court and this Court have repeatedly
reiterated that Michigan’s Constitution confers on the
CSC expansive and exclusive authority to regulate the
workings of the classified civil service. “We do not
question the [CSC’s] authority to regulate employment-
related activity involving internal matters such as job
specifications, compensation, grievance procedures, dis-
cipline, collective bargaining and job performance, in-
cluding the power to prohibit activity during working
hours which is found to interfere with satisfactory job
performance.” Council No 11, 408 Mich at 406 (empha-
sis added). Const 1963, art 11, § 5 contemplates an
autonomous administrative agency vested with “abso-
lute power in its field.” AFSCME Council 25 v State
service.” (Emphasis added). Agency-fee rules “implicate” collective bar-
gaining and the dispute resolution process created by the CSC. These
“implications” supply separate grounds for holding PA 349 unconstitu-
tional.
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Employees’ Retirement Sys, 294 Mich App 1, 15; 818
NW2d 337 (2011). And “[b]ecause the CSC’s power and
authority is derived from the constitution, its valid
exercise of that power cannot be taken away by the
Legislature.” Hanlon v Civil Serv Comm, 253 Mich App
710, 717; 660 NW2d 74 (2002).
In Council No 11, the Supreme Court considered “a
conflict between the rule-making power of the [CSC]
and the law-making power of the legislature....”
Council No 11, 408 Mich at 390. Specifically at issue
were a civil service rule prohibiting classified civil
servants from engaging in political activities both on-
and off-duty and a statute generally permitting political
activity. Id. at 390-391. The Supreme Court held that
the CSC’s rulemaking power did not extend to “the
blanket prohibition of off-duty activities,” observing
that “[w]hat an employee does during his off-duty hours
is not of proper concern to the [CSC] unless and until it
is shown to adversely affect job performance.” Id. at
407. Thus, the Court upheld the constitutionality of a
statute permitting members of the classified civil ser-
vice “to enjoy the exercise of freedom of speech and
expression involved in off-duty political activity, includ-
ing running for public office....”Id. at 393-394, 409.
Notwithstanding this rebuke of the CSC, the Su-
preme Court emphatically underscored the CSC’s su-
premacy in its constitutionally assigned field:
We do not wish to be understood as qualifying in any
way this Court’s earlier holding that
the Civil Service Commission by [the constitutional
grant of authority] is vested with plenary powers in its
sphere of authority. (Emphasis added.) Plec v Liquor
Control Comm, 322 Mich 691; 34 NW2d 524 (1948).
Since that grant of power is from the Constitution, any
executive, legislative or judicial attempt at incursion into
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that “sphere” would be unavailing. We intend, rather, to be
understood as emphasizing that the commission’s “sphere
of authority” delimits its rule-making power and confines
its jurisdiction over the political activity of classified per-
sonnel to on-the-job behavior related to job performance.
[Id. at 408.]
While Council No 11 does not countenance curtailing a
civil servant’s civil right to engage in off-duty political
activity, that case nowhere even hints that the Legisla-
ture may interfere with the CSC’s authority to regulate
on-duty employment concerns.
4
This Court has repeatedly rebuffed challenges to the
CSC’s authority to perform its constitutional function.
In one particularly pertinent case, Dudkin v Civil Serv
Comm, 127 Mich App 397, 408; 339 NW2d 190 (1983),
this Court examined whether Const 1963, art 11, § 5
prohibited “discharge for failure to pay any agency shop
fee because civil service employment is to be governed
strictly on merit principles.” This Court unqualifiedly
confirmed that the CSC’s power encompassed the abil-
ity to regulate agency-shop fees:
Designation of an exclusive representative and imposi-
tion of an agency shop fee clearly bears on the efficiency of
civil service operations. The [CSC] has reserved the right to
promulgate “such additional rules as it may deem neces-
4
Citing Council No 11, the majority observes that the CSC’s agency-fee
rule serves as both a “condition of” and a “condition for” employment
and asserts that “the CSC may regulate conditions of employment, not
for employment....” No authority supports that the CSC lacks the
ability to regulate a condition “of” employment that concomitantly
qualifies as a condition “for” employment, regardless of the inapplicable
dicta in Council No 11. Job qualification requirements (for example,
licensure in a certain field) constitute conditions “of” and “for” contin-
ued employment. Continuing-education requirements or certain minimal
exam scores qualify as conditions “of” and “for” employment. That these
conditions “of” employment overlap conditions “for” employment hardly
renders them illegal usurpations of power.
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sary to insure the effective and orderly operation of the
meet and confer system established by these regulations”.
The director has general authority to issue other employee
relations regulations consistent with the rules....
Finally, imposition of agency shop fees on non-union
members has been upheld in the public employee context.
[Abood, 431 US 209]; Eastern Michigan Univ Chapter of
American Ass’n of Univ Professors v Morgan, 100 Mich App
219; 298 NW2d 886 (1980).
We conclude that the [CSC] is constitutionally autho-
rized to impose an agency shop fee pursuant to efficient civil
service operations. [Dudkin, 127 Mich App at 408-409
(emphasis added).]
[
5
]
Crider v Michigan, 110 Mich App 702, 723; 313
NW2d 367 (1981), further supports that in the realm of
labor relations within the classified civil service, the
CSC reigns supreme. The plaintiffs in Crider were laid
off pursuant to “a statewide program of one-day lay-
offs.” Id. at 706. The CSC exempted from layoff those
employees “covered by [a previously existing] collective
bargaining agreement limiting the right to lay off.” Id.
at 709 (quotation marks and citation omitted; emphasis
omitted). This Court found no merit in a host of
challenges to this civil service rule, including that it
“violate[d] the right to equal protection of the employ-
ees laid off pursuant to it, and it violate[d] the employ-
ees’ right to due process.” Id. at 717. Fundamental
constitutional principles united this Court’s examina-
5
The majority attempts to distinguish Dudkin on the basis that the
CSC justified the fees by relying on the language “merit, efficiency and
fitness” of Const 1963, art 11, § 5 rather than the language “regulate
conditions of employment” plaintiffs now invoke. Respectfully, the major-
ity has missed the forest for the trees. Dudkin stands for the proposition
that the CSC may constitutionally make rules regarding agency fees.
Whether that power derives from one phrase found in article 11, § 5
rather than another does not change the central fact that the CSC
operates within its authority when imposing agency fees.
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tion of the multiple, disparate issues it considered. For
all of those issues, this Court set the analytical stage as
follows: “A court of this state cannot substitute its
judgment for that of an administrative board or com-
mission acting within its duly granted powers. Indeed,
even the Legislature is without power to regulate the
internal procedures of the CSC.” Id. at 716 (citation
omitted; emphasis added). This Court elaborated:
[G]iven the broad scope of the CSC’s constitutional
authority to regulate the compensation and working con-
ditions of classified state employees, defendants correctly
argue that the CSC’s decisions regarding the compensation
of covered employees are entitled to at least as much
deference as decisions of other administrative commis-
sions. This is particularly true in light of the above-quoted
section of the state constitution [article 11, § 5] that gives
the CSC great discretion over most, if not all, aspects of
state civil service employment. [Id.]
These cases instruct that the CSC enjoys comprehen-
sive regulatory prerogatives in the realm of the classi-
fied civil service. The CSC may adopt rules, fix rates of
compensation, and generally control the conditions of
employment for the civil service work force. And be-
cause the Constitution grants the CSC “plenary and
absolute powers in its field,” Viculin, 386 Mich at 398,
the Legislature “cannot by statute usurp [the CSC’s]
constitutional authority,” Ins Comm’r v Mich State
Accident Fund Advisory Bd, 173 Mich App 566, 583; 434
NW2d 433 (1988).
6
6
Nor do Dep’t of Civil Rights ex rel Jones v Dep’t of Civil Serv, 101
Mich App 295; 301 NW2d 12 (1980), and Marsh v Dep’t of Civil Serv, 142
Mich App 557; 370 NW2d 613 (1985), avail the majority’s argument.
Neither case involved a CSC rule regulating a “condition of employ-
ment.” Jones involved a discriminatory long-term-benefit plan “made
available” to classified employees. Jones, 101 Mich App at 297. Marsh
applied the Civil Rights Act to the classified civil service, holding that the
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IV. 2012 PA 349 AS APPLIED TO THE CLASSIFIED CIVIL SERVICE
The majority asserts that in enacting PA 349, the
Legislature appropriately weighed in on a matter of
constitutional import: “With PA 349, the Legislature
has...remov[ed] political and ideological conflict from
public employment and eliminate[ed] the repeated need
to decide, on a case by case basis, whether unions have
properly allocated funds.” Because “agency fees impli-
cate governmental employees’ constitutional rights and
important questions of public policy,” the majority
opines, “matters like the one at issue here are within
the province of the Legislature[.]” Thus, the majority
concludes, “it is within the authority of the Legislature
to pass laws on public policy matters in general and
particularly those, as here, that unquestionably impli-
cate constitutional rights of both union and nonunion
public employees.”
In my view, the majority has lost sight of the principle
that “[t]he Michigan Constitution is not a grant of
power to the Legislature as is the United States Con-
stitution, but rather, it is a limitation on general legis-
lative power.” Advisory Opinion on Constitutionality of
1976 PA 240, 400 Mich 311, 317-318; 254 NW2d 544
(1977). The Legislature may wield its power only in the
manner prescribed by Michigan’s Constitution. It may
not infringe on a sphere of power belonging to another
constitutional body. See Federated Publications, Inc v
Mich State Univ Bd of Trustees, 460 Mich 75; 594 NW2d
491 (1999) (holding that while the Legislature has some
power to control public universities, it may not interfere
with those functions constitutionally placed under the
CSC’s power to resolve employment disputes “does not extend to the area
of employment discrimination.” Marsh, 142 Mich App at 569. In neither
case did the legislative enactment at issue clash with a civil service rule
concerning the classified work force’s conditions of employment.
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universities’ governance). Regardless of the Legisla-
ture’s perception that the CSC’s agency-fee rule is
wrongheaded, the 1963 Constitution places “regula-
[tion of] all conditions of employment in the classified
service” in the hands of the CSC. Const 1963, art 11,
§ 5. This limitation of power does not magically evapo-
rate when the Legislature chooses to place its thumb on
the scale in favor of a particular political preference.
Nor does cloaking the Legislature’s motives in civil-
rights garb eliminate a separation-of-powers conflict.
Many employment matters “implicate” constitu-
tional rights. For example, an employee’s right to a full
and fair termination procedure implicates the Due
Process Clause. Arbitration clauses implicate the Sev-
enth Amendment’s right to jury trial. Whether a public-
sector employee may be compelled to submit to drug
testing implicates the Fourth Amendment. Antinepo-
tism rules may implicate the constitutionally protected
freedom to marry. The CSC could, and perhaps has,
generated rules in all of these arenas. But that an
employment rule promulgated by the CSC “implicates”
or may “impact” an intact constitutional right does not
authorize the Legislature to pass laws invading terri-
tory confined by the Constitution to an independent
constitutional body. Michigan’s Constitution carves out
for the CSC alone the constitutional prerogative to
“regulate all conditions of employment in the classified
service.”
7
The majority minimizes the CSC’s authority, assert-
ing that despite the plain language of article 11, § 5, a
different constitutional provision—Const 1963, art 4,
§ 49—“authorizes the Legislature to enact laws relative
to the hours and conditions of employment generally,
7
Should the CSC overstep constitutional bounds, the judicial branch
may supply correction and a remedy.
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subject only to the CSC’s authority to regulate condi-
tions of employment in the classified civil service, in
addition to performing other specifically enumerated
duties.” According to the majority, the “collid[ing]”
constitutional provisions invest “specific and plenary
power” in the CSC “to regulate conditions of employ-
ment,” while preserving for the Legislature the “broad
constitutional authority to enact laws, including those
affecting the hours and conditions of employment for
classified civil service employees.” 2012 PA 349, the
majority insists, corresponds with the Legislature’s
authority to pass laws that “unquestionably implicate”
constitutional rights.
“The public policy of this state as to labor relations in
public employment is for legislative determination. The
sole exception to the exercise of legislative power is the
state classified civil service, the scheme for which is
spelled out in detail in Article 11 of the Constitution of
1963.” Eastern Mich Univ Bd of Control v Labor Me-
diation Bd, 384 Mich 561, 566; 184 NW2d 921 (1971).
As explained in Dudkin and reemphasized here by
amicus curiae CSC, efficient civil service operations
justify the imposition of agency shop fees. One likely
motivation for the CSC’s policy choice is to avoid the
resentment and hostilities generated by free riders. The
1963 Constitution makes it clear that the CSC’s labor-
relations judgments trump those of the Legislature,
regardless of the reasons offered by the Legislature for
drafting a “better” or “fairer” rule.
Accordingly, the majority’s perceived “colli[sion]” be-
tween article 11, § 5 and article 4, § 49 must be resolved
in favor of the CSC. A “fundamental rule of constitu-
tional construction...requires this Court to construe
every clause or section of a constitution consistent with
its words or sense so as to protect and guard its
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purposes.” In re ProposalsD&H, 417 Mich 409, 421;
339 NW2d 848 (1983). “[N]o court should so construe a
clause or section of a constitution as to impede or defeat
its generally understood ends when another construc-
tion thereof, equally concordant with the words and
sense of that clause or section, will guard and enforce
those ends.” Mich Farm Bureau v Secretary of State,
379 Mich 387, 393; 151 NW2d 797 (1967). Respect for
each provision mandates affirmative recognition “that
all constitutional provisions enjoy equal dignity.” Pro-
posalsD&H, 417 Mich at 421.
“[T]he separation of powers doctrine does not re-
quire so strict a separation as to provide no overlap of
responsibilities and powers.” Judicial Attorneys Ass’n v
Michigan, 459 Mich 291, 296; 586 NW2d 894 (1998). A
specific, limited grant of authority to one branch “does
not create encroachment or aggrandizement of one
branch at the expense of the other....” Id. at 297.
When feasible, “a sharing of power may be constitution-
ally permissible.” Id.
Application of these principles avoids a fatal collision.
The Legislature enjoys a general mandate to “enact
laws relative to the hours and conditions of employ-
ment,” Const 1963, art 4, § 49, while the CSC alone
regulates “all conditions of employment in the classified
service,” Const 1963, art 11, § 5. Thus, both entities
share some authority to regulate “conditions of employ-
ment.” As long as the Legislature’s exercise of its power
neither contradicts nor nullifies the CSC’s regulation of
a condition of employment, no conflict arises. However,
when the Legislature passes a law directly clashing with
a CSC work rule, it does so at its peril. The statute
construed in Council No 11 survived because it con-
cerned a subject outside the CSC’s jurisdiction. In
contrast, legislative incursion into the CSC’s constitu-
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tional domain that transgresses the CSC’s constitu-
tional bailiwick is improper. To hold otherwise is to
write out of the Constitution the regulatory authority of
the CSC. Thus, the majority’s pronouncement that the
Legislature’s authority includes enacting politically mo-
tivated laws contradicting civil service rules cannot be
squared with separation-of-powers principles. The just-
ness of the Legislature’s cause does not alter its role in
our constitutional system. Because PA 349 indisputably
intrudes on the CSC’s express power to “regulate all
conditions of employment in the classified service,” it is
unconstitutional as applied to the classified civil ser-
vice.
8
The majority holds that Const 1963, art 4, § 49
authorizes the Legislature to override the CSC’s au-
thority whenever it finds a “public policy” justifying the
displacement of a civil service rule. I submit that when
the CSC acts to regulate conditions of employment in
the classified civil service, the Legislature must respect
the CSC’s constitutional authority to make public-
policy choices contrary to those preferred by the Legis-
lature. And here, it cannot seriously be questioned that
imposition of an agency fee constitutes a regulation of a
condition of employment.
Citing the 2006 edition of Merriam-Webster’s Colle-
giate Dictionary, the majority maintains that “the
ordinary meaning of the word ‘regulate’ is to govern,
direct, or control according to rule, law or authority.”
Although the majority’s point is not altogether clear,
it appears to reject that the CSC’s agency-fee rule
8
The majority acknowledges that “[t]he Legislature possesses the
broad power to enact laws relative to the conditions of all employment,
whereas the CSC possesses the narrow power to regulate conditions of
civil service employment.” If this specific power grant to the CSC must
give way whenever the Legislature disagrees with the CSC’s policy
choice, article 11, § 5’s empowerment of the CSC is purely illusory.
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qualifies as a regulation of a condition of employ-
ment, adopting defendants’ argument that the CSC’s
regulatory authority is subservient to the Legisla-
ture’s power to enact general laws concerning condi-
tions of employment.
I note preliminarily that the majority has not accu-
rately parsed its own dictionary source; it has blended
together alternative definitions to find a preferred
meaning.
9
Notwithstanding the majority’s fictive defi-
nition, the dictionary gambit is inappropriate and un-
necessary. When construing the Constitution, we must
“discern the original meaning attributed to the words of
a constitutional provision by its ratifiers.” People v
Nutt, 469 Mich 565, 573; 677 NW2d 1 (2004). Rather
than use dictionaries, “we apply the rule of ‘common
understanding.’ ” Id. “In applying this principle of
construction, the people are understood to have ac-
cepted the words employed in a constitutional provision
in the sense most obvious to the common understand-
ing and to have ‘ratified the instrument in the belief
that that was the sense designed to be conveyed.’ ” Id.
at 573-574, quoting 1 Cooley, Constitutional Limita-
tions (6th ed), p 81.
“Regulate” is such a commonly understood word that
dictionaries are superfluous. To regulate is simply to
control by rulemaking. This meaning of the term “regu-
late” guides my interpretation of the phrase “regulate
all conditions of employment in the classified service.”
Const 1963, art 11, § 5. Simply put, the CSC may make
rules controlling the conditions of employment in the
classified civil service.
9
The alternative definitions set forth in the majority’s selected dictio-
nary source are “1a: to govern or direct according to rule” and “b (1) :
to bring under the control of law or constituted authority.” Merriam-
Webster’s Collegiate Dictionary (11th ed, 2006), p 1049.
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Nor is the phrase “conditions of employment” diffi-
cult to parse. In Council No 11, the Supreme Court
identified as falling within the CSC’s regulatory author-
ity “job specifications, compensation, grievance proce-
dures, discipline, collective bargaining and job perfor-
mance....”Council No 11, 408 Mich at 406 (emphasis
added). Historically, Michigan has broadly interpreted a
closely related phrase, “other terms and conditions of
employment.” Central Mich Univ Faculty Ass’n v Cen-
tral Mich Univ, 404 Mich 268, 277; 273 NW2d 21
(1978).
Agency fees readily fall within the “all conditions of
employment” rubric. The majority concedes this point
by relying on article 4, § 49, which uses precisely the
same phrase. In Locke v Karass, 555 US 207, 213; 129 S
Ct 798; 172 L Ed 2d 552 (2009), the United States
Supreme Court explained that “the First Amendment
burdens accompanying the [agency-fee] payment re-
quirements are justified by the government’s interest in
preventing freeriding by nonmembers who benefit from
the union’s collective-bargaining activities and in main-
taining peaceful labor relations.” In Abood, the Su-
preme Court similarly recognized that agency fees play
an important role in labor peace by “distribut[ing]
fairly” the cost of representational activities advantag-
ing all employees while simultaneously “counteract-
[ing] the incentive that employees might otherwise
have to become ‘free riders’—to refuse to contribute to
the union while obtaining benefits of union representa-
tion that necessarily accrue to all employees.” Abood,
431 US at 222. In Railway Employees’ Dep’t v Hanson,
351 US 225, 234; 76 S Ct 714; 100 L Ed 1112 (1956), the
Supreme Court reasoned that “[t]he ingredients of
industrial peace and stabilized labor-management rela-
tions are numerous and complex. They may well vary
from age to age and from industry to industry. What
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would be needful one decade might be anathema the
next. The decision rests with the policy makers, not
with the judiciary.” Michigan’s Constitution appoints
the CSC as the policymaker for the classified civil
service.
The CSC has determined that agency fees foster
harmonious labor relations. Civ Serv R 6-7.2 is fully
consonant with the CSC’s constitutional place in our
system of divided powers. In my view, neither the
majority nor the Legislature may cast aside the CSC’s
choice based on an alternative political preference.
Rather than honoring the specific and exclusive delega-
tion of power to the CSC in article 11, § 5, the majority’s
approach strips the CSC of its regulatory supremacy.
Because agency fees constitute a condition of employ-
ment in the classified civil service, they are not subject
to legislative elimination. I would hold that if applied to
the civil service, PA 349 would transgress the CSC’s
constitutional authority to make rules governing all
conditions of employment and respectfully dissent from
the majority’s contrary conclusion.
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ADAIR v STATE OF MICHIGAN
Docket No. 302142. Submitted July 25, 2013, at Lansing. Decided
August 22, 2013, at 9:00 a.m. Leave to appeal sought.
Daniel Adair, the Fitzgerald Public Schools, and others brought a
declaratory judgment action in the Court of Appeals against the
state of Michigan and several state departments and officials,
alleging that defendants had violated the prohibition of unfunded
mandates (POUM) in Const 1963, art 9, § 29, part of the Headlee
Amendment, by failing to fully fund, among other things, the costs
of collecting, maintaining, and reporting information to the Center
for Educational Performance and Information (CEPI) as MCL
388.1694a requires. The Court referred the matter to a special
master, Michael Warren, J., who issued a series of advisory rulings
and ultimately directed a verdict in favor of defendants on the
ground that, because some money had been appropriated for the
costs of compliance with the CEPI mandates, plaintiffs were
required to establish the specific dollar amount of the funding
insufficiency and had failed to do so.
The Court of Appeals held:
1. The special master’s findings of fact and conclusions of law
were adopted with the exception of the master’s characterization
of plaintiffs’ burden of proof.
2. The special master erred by directing a verdict in favor of
defendants because plaintiffs were not required to establish the
specific dollar amount of the alleged underfunding of the appro-
priations that would be required to comply with the CEPI report-
ing requirements, even though some money had been appropri-
ated. Rather, plaintiffs were required to present evidence that was
sufficient to allow the trier of fact to conclude that the method the
Legislature employed to determine the amount of the appropria-
tion was so flawed that it failed to reflect the actual cost to the
state if the state were to provide the activity or service at issue.
The matter was remanded to the special master for the reopening
of proofs and the finding of facts regarding plaintiffs’ claim that
the existing appropriations did not fully fund the necessary costs
of the CEPI mandates.
3. The special master properly concluded that the Legislature
2013] A
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ICHIGAN
305
had not imposed unfunded mandates on the school districts in
violation of the POUM provision when it enacted 2011 PA 100
through 103, which amended various statutes governing teachers’
employment and tenure, because none of these acts imposed new
or increased activities on the school districts within the meaning of
the POUM provision.
4. The special master properly concluded that plaintiffs’ chal-
lenge to the constitutionality of the Legislature’s funding scheme
to reimburse school districts for the costs they incurred by
complying with the CEPI recordkeeping mandates failed under
Durant v Michigan, 251 Mich App 297 (2002), and Durant v
Michigan (On Remand), 238 Mich App 185 (1999), which held that
the state’s funding obligations under the Headlee Amendment
could be satisfied by reallocating a portion of the funds that are
appropriated and disbursed annually to local school districts under
§ 11 of the State School Aid Act, MCL 388.1601 et seq.
5. The special master correctly concluded that plaintiffs’ action
was not barred by the doctrine of res judicata because their claims
did not arise from the same transactional setting as the previously
litigated Headlee challenge and arose well after that challenge was
resolved.
6. The special master correctly rejected the state’s defense that
the discretionary funds appropriated in § 22 of both 2010 PA 217
and 2011 PA 62 satisfied the state’s POUM obligation because that
argument was expressly rejected in Adair v Michigan (On Second
Remand), 279 Mich App 507 (2008).
Declaratory judgment granted in part; matter remanded to the
special master for further findings of fact; jurisdiction retained.
C
ONSTITUTIONAL
L
AW —
P
ROHIBITION OF
U
NFUNDED
M
ANDATES —
H
EADLEE
A
MENDMENT —
B
URDEN OF
P
ROOF —
S
PECIFIC
D
OLLAR
A
MOUNTS
.
To establish that the state violated the constitutional prohibition of
unfunded mandates, a plaintiff need not establish the specific
dollar amount of the alleged underfunding of the state’s appro-
priation and disbursal of funds to pay for the costs necessitated by
the new or increased activity or service that the state required of
a local unit of government; instead, a plaintiff must present
evidence that is sufficient to allow the trier of fact to conclude that
the method the Legislature employed to determine the amount of
the appropriation was so flawed that it failed to reflect the actual
cost to the state if the state were to provide the activity or service
at issue (Const 1963, art 9, § 29; MCL 21.233[6]).
306 302 M
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Secrest Wardle (by Dennis R. Pollard and Mark A.
Roberts) for plaintiffs.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Matthew Schneider, Chief Legal
Counsel, and Timothy J. Haynes and Jonathan S.
Ludwig, Assistant Attorneys General, for defendants.
Before: O’C
ONNELL
,P.J., and T
ALBOT
and O
WENS
,JJ.
P
ER
C
URIAM
. This original taxpayer action is brought
pursuant to the provisions of the Headlee Amendment,
Const 1963, art 9, §§ 25 through 34. The action ad-
dresses the parameters of the state’s funding obliga-
tions under the second sentence of § 29 of the
amendment—commonly referred to as the “prohibition
of unfunded mandates” or POUM provision—and Pro-
posal A, Const 1963, art 9, § 11. Our Supreme Court
held that the state violated the POUM provision when
it required plaintiff school districts to collect, maintain,
and report to the Center for Educational Performance
and Information (CEPI) certain types of data for use by
the state, without providing funds to reimburse the
school districts for the necessary increased costs they
would incur in order to comply with those recordkeep-
ing mandates. Adair v Michigan, 486 Mich 468, 494;
785 NW2d 119 (2010) (Adair I). Thereafter, our Legis-
lature appropriated $25,624,500 to reimburse plaintiff
school districts for the compliance costs incurred during
the 2010-2011 school year. The Legislature increased
the appropriation to $34,064,500 for the 2011-2012
school year, which also included an allocation of
$8,440,000 to reimburse the school districts for the
costs of complying with the new CEPI mandate to
report student performance data to the Teacher Stu-
dent Data Link. Plaintiffs, who are 465 school districts
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and a representative taxpayer from each district, now
challenge the constitutionality of the method by which
the Legislature funded these appropriations. They also
challenge the adequacy of the amount of each appro-
priation. Finally, plaintiffs allege that the Legislature
violated the POUM provision by imposing new or an
increased level of activities on the districts through
amendments to several provisions of the Revised School
Code, MCL 380.1 et seq., the teacher tenure act, MCL
38.71 et seq., and the public employment relations act
(PERA), MCL 423.201 et seq., without appropriating
any funding to reimburse the school districts for the
necessary costs associated with satisfying the new man-
dates. We referred this matter to a special master, who
made a series of advisory rulings that ultimately re-
sulted in the entry of a directed verdict in favor of the
state.
We adopt the findings of fact and conclusions of law
of the special master, with the exception of the special
master’s characterization of plaintiffs’ burden of proof.
Accordingly, we enter a declaratory judgment, in part,
in favor of the state, but also remand this matter to the
special master to take additional proofs and conduct
further fact-finding. The motion to expedite is denied as
moot. We decide this case without oral argument pur-
suant to MCR 7.214(E).
I
The special master convened an evidentiary hearing,
the subject of which was plaintiffs’ claim that the
existing appropriations do not fully fund the necessary
costs of the CEPI mandates as the POUM provision
requires. Plaintiffs’ lead counsel asserted during his
opening statement that, in order to sustain this claim,
plaintiffs must show only that the amounts appropri-
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ated for the two fiscal years “are inadequate,” that is,
that they do not represent full state financing as
required by §§ 25 and 29 of article 9.
1
Counsel explained
that plaintiffs would carry this burden by presenting
expert testimony that would show that the method
employed by the Legislature to determine the amount
of the challenged appropriations was flawed and that
the use of this flawed method resulted in a level of
appropriation that was “grossly below” the amount of
funding needed to reimburse the cost of all the activities
associated with the collection, maintenance, and report-
ing of the data. Counsel rejected the proposition that
plaintiffs were required to establish the exact amount of
the alleged underfunding and candidly admitted that
plaintiffs could not do so. Immediately following this
opening statement, the state sought a directed verdict
in its favor. According to the state, plaintiffs bore the
burden of showing the specific dollar amount of the
alleged underfunding of the state’s POUM funding
obligation. Because plaintiffs admitted that they could
not do so, plaintiffs could not sustain their challenge to
the adequacy of the appropriations, and the state was
entitled to a directed verdict. The special master agreed
and directed a verdict for the state. We conclude that
the special master held plaintiffs to a higher standard of
1
Section 25 of the Headlee Amendment summarizes the “fairly com-
plex system of revenue and tax limits” imposed by the provisions of the
amendment, Durant v Michigan, 456 Mich 175, 182; 566 NW2d 272
(1997), and provides, in part, that “[t]he state is prohibited from
requiring any new or expanded activities by local governments without
full state financing,” Const 1963, art 9, § 25. This prohibition is imple-
mented through the POUM provision of § 29. Const 1963, art 9, § 25;
Durant, 456 Mich at 183. Reading §§ 25 and 29 together, a new or
expanded activity or service is fully financed by the state when the state
pays the “necessary increased costs” resulting from compliance with the
mandate. Const 1963, art 9, § 29; see also Adair I, 486 Mich at 479.
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proof than required by Adair I and, therefore, that the
special master erroneously directed a verdict in favor of
the state.
Our Supreme Court granted leave in Adair I, in part,
to determine “whether plaintiffs must introduce evi-
dence of a specific, quantified increase in costs resulting
from a violation of the Headlee Amendment provision
prohibiting unfunded mandates to establish entitle-
ment to a declaratory judgment” when the plaintiffs
had alleged that the state had failed to appropriate any
funding to reimburse the school districts for complying
with the CEPI recordkeeping mandates. Adair I, 486
Mich at 472. The majority answered this question in the
negative. According to the majority,
to establish a violation of the POUM provision, a plaintiff
must show that the state required a new activity or service
or an increase in the level of activities or services. If no
state appropriation was made to cover the increased bur-
den on local government, the plaintiff need not show the
amount of increased costs. It is then the state’s burden to
demonstrate that no state funding was required because
the requirement did not actually increase costs or the
increased costs were not necessary. [Id. at 480.]
The majority rejected the state’s claim that it was the
school districts’ burden, and not its burden, to demon-
strate that any additional costs incurred in order to
comply with the recordkeeping mandates met the defi-
nition of “necessary cost” under MCL 21.233(6) and
were not de minimis under MCL 21.232(4). The major-
ity explained:
Neither Const 1963, art 9, § 29 nor MCL 21.233 sug-
gests that plaintiffs bear the burden of proving precisely
how much the school districts’ costs increased as a result of
the mandate. In fact, the language of MCL 21.233 implies
the opposite. That section defines “necessary cost” as the
“net cost of an activity or service provided by a local unit of
310 302 M
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government.” The “net cost” is defined as “the actual cost
to the state if the state were to provide the activity or
service mandated as a state requirement....” [Adair I,
486 Mich at 486-487.]
Likewise, the majority rejected the state’s argument
that the school districts were required to produce
evidence of specific dollar-amount increases in the costs
incurred by the districts in order to comply with the
CEPI mandates. The majority indicated that the con-
clusion that “a plaintiff does not have the burden to
make such a showing to establish entitlement to a
declaratory judgment under the POUM provision...is
axiomatic from the language of Const 1963, art 9, § 29,
previous caselaw involving the Headlee Amendment,
and the underlying purpose for seeking a declaratory
judgment.” Adair I, 486 Mich at 488. The majority
elaborated:
The terms “net cost” and “actual cost” suggest a quan-
tifiable dollar amount. However, nothing in MCL 21.233
suggests that it was intended to change the burden of proof
in Const 1963, art 9, § 29. The specific costs that would be
incurred are defined by reference to what costs the state
would incur if it had to pay for the increased costs itself.
Thus, it is the Legislature’s burden to demonstrate that
those costs were not “necessary” under one or more of the
exceptions in MCL 21.233(6)(a) to (d). Otherwise, the
Legislature must determine what dollar amount is neces-
sary, then appropriate that amount to the school districts.
This is so because MCL 21.233(6) defines “net cost” as
“the actual cost to the state” if the state were to provide the
activity or service required. Clearly, the Legislature is in a
position far superior to plaintiffs’ to determine what the
actual cost to itself would be if it performed the increased
recordkeeping and reporting duties. Proofs on this point
are easily accessible to the state because it could ascertain
the costs it would incur if it provided the new activity. The
dispositive issue is the cost to the state if it were to provide
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the new or increased activity or service, not the cost
incurred by the local governmental unit.
To impose such a requirement on plaintiffs would be
illogical and inconsistent with the purposes of the POUM
provision of the Headlee Amendment. We have noted that
the POUM provision is intended to address future services
and activities. Plaintiffs in this case filed suit fewer than
two months after EO 2000-9 took effect. The parties
stipulated at trial that plaintiff school districts were not
required to begin complying with the order’s recordkeeping
requirements until two years later.
Therefore, had this case been resolved in a timely
fashion, EO 2000-9 would not have required plaintiffs to
demonstrate specific amounts of necessary costs incurred.
Moreover, it would have been difficult for them to do so....
Finally, plaintiffs in this case seek a declaratory judg-
ment, not monetary damages. An action for a declaratory
judgment is typically equitable in nature and subject to
different rules than other causes of action. “The declara-
tory judgment rule was intended and has been liberally
construed to provide a broad, flexible remedy with a view to
making the courts more accessible to the people.” We have
also consistently held that “a court is not precluded from
reaching issues before actual injuries or losses have oc-
curred.”
Defendants claim that a finding of necessary in-
creased costs cannot be established without a compari-
son between the specific net costs before and after the
required change in activities. For the reasons stated
previously, we reject this argument. Had this action
proceeded to a prompt resolution, plaintiffs could not
have demonstrated such a side-by-side comparison of the
“before and after” costs incurred to meet the recordkeep-
ing requirements. It would be nonsensical to impose this
additional evidentiary requirement on plaintiffs here
when, in another case, it would be impossible for the
plaintiffs to make such a showing. [Adair I, 486 Mich at
488-491 (citations omitted).]
312 302 M
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The special master in this case concluded that plain-
tiffs bore the burden of showing the amount of the
purported underfunding “[b]ecause the Legislature has
funded the mandate in question[.]” He reached this
conclusion in reliance on footnote 29, wherein the Adair
I majority observed: “However, if the state did appro-
priate funds for the new or increased activity or service,
the plaintiff would likely have a higher burden in order
to show a POUM violation.” Adair I, 486 Mich at 480
n 29. The special master reasoned:
In the instant case, the Plaintiffs’ Second Amended
Complaint (“SAC”) acknowledges that the Legislature ap-
propriated funds to pay for the CEPI/Data Link Mandates.
Consequently, the Plaintiffs have a “higher burden” which
requires them to produce evidence of specific dollar-
amount increases in the costs incurred in order to comply
with the CEPI requirements. [Adair I, 486 Mich at 480
n 29, 488.] Such a ruling is consistent not only with Adair
I, but with [Adair v Michigan, 470 Mich 105, 111, 119-120;
680 NW2d 386 (2004) (Adair II)].
[
2
]
The Plaintiffs’ poi-
gnant argument that the general direction of Adair I
mitigates requiring them to establish the insufficiency of
the amount of appropriation overlooks the factual distinc-
tion between Adair I (no appropriation made) and this case
(tens of millions of dollars of appropriations made). Fur-
thermore, once the state establishes an appropriation, the
Plaintiffs are equipped to attack whether the amount is
sufficient and the extent of any such deficiency. In fact, the
Plaintiff’s [sic] expert’s report does attack the methodology
used by the state and concludes that the mandate was not
fully funded. Unfortunately for their case, the Plaintiffs
have failed to do anything else. Instead, they concede that
they cannot establish a Specific Number. As such, the case
is fatally flawed, and dismissal of the claim is warranted.
Cf. Adair I, [486 Mich] at 480 n 29; Id. at 508 (Markman, J.,
dissenting).
2
Although Adair II preceded Adair I, this opinion refers to them as
indicated for the sake of consistency with the special master’s references.
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To hold otherwise could subject the taxpayers, courts,
and parties to a cycle of never ending lawsuits in which the
Plaintiffs only seek to prove that appropriations do not
amount to full funding, while depriving the courts [of] the
ability to declare what a full level of funding would be. This
undermines the entire purpose of the Headlee Amendment
and the efficient administration of justice.
The special master correctly recognized that Adair I
is factually distinguishable from the instant case. In
Adair I, the Legislature failed to appropriate any fund-
ing to reimburse the school districts for the necessary
increased costs associated with the CEPI recordkeeping
mandates. In this case, plaintiffs readily concede that
the state has appropriated funding. The special master
also correctly recognized that the Adair I majority
intimated that in circumstances where an appropria-
tion had been made, as in this case, a plaintiff asserting
a POUM violation “would likely have a higher burden
in order to show a POUM violation” because “[u]nder
those circumstances, the state would not have violated
the POUM provision per se by failing to provide fund-
ing.” Id. at 480 n 29.
We conclude that the special master relied too heavily
on the distinguishing factual circumstances present in
this case when determining the nature of plaintiffs’
burden of proof. Although the Adair I majority qualified
its ruling that a “plaintiff need not show the amount of
increased costs” with the prefatory phrase “[i]f no state
appropriation was made to cover the increased burden
on local government,” id. at 480, the majority based its
ultimate ruling on legal and not factual grounds. In-
deed, the Adair I majority expressly and broadly ruled
that neither Const 1963, art 9, § 29 nor MCL 21.233
impose on a plaintiff the burden of proving “how much
the school districts’ costs increased as a result of the
mandate” or the “specific-dollar amount increases in
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the costs incurred in order to comply with the CEPI
requirements.” Adair I, 486 Mich at 486-487, 488; see
also id. at 491, 494. This rule is based on the language
of the POUM provision and the enacting statutes, not
any specific set of factual circumstances, including
whether the Legislature appropriated any funding. This
rule remains a constant by which this Court is bound,
regardless of whether the Legislature has appropriated
any funding, unless our Supreme Court revisits the
issue of burden of proof and issues a ruling overruling
Adair I. Griswold Props, LLC v Lexington Ins Co, 276
Mich App 551, 563; 741 NW2d 549 (2007). The “higher
burden” imposed on the school districts by the special
master is contraindicated by the Adair I majority’s
ruling.
Because the Adair I majority did not address what
burden a plaintiff may bear when challenging the
adequacy of an existing appropriation under the POUM
provision, we are now tasked with doing so. Generally, a
plaintiff seeking a declaratory judgment bears the affir-
mative duty to prove the existence or nonexistence of a
fact or facts alleged and in dispute concerning an issue
raised between the parties; i.e., plaintiffs must plead
and prove facts that “indicate an adverse interest
necessitating the sharpening of the issues raised.”
Shavers v Attorney General, 402 Mich 554, 589; 267
NW2d 72 (1978). Consistently with this general rule,
our Supreme Court has ruled that a plaintiff alleging a
violation of the POUM provision “must show that ‘the
state-mandated local activity was originated without
sufficient state funding after the Headlee Amendment
was adopted or, if properly funded initially, that the
mandated local role was increased by the state without
state funding for the necessary increased costs.’ ” Adair
I, 486 Mich at 479, quoting Adair II, 470 Mich at 111.
This is because a new or expanded activity or service
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can be said to be fully financed by the state for purposes
of the POUM provision only when the state pays the
“necessary increased costs” resulting from compliance
with the state’s mandate. Const 1963, art 9, § 29; Adair
I, 486 Mich at 479. The Adair I majority clearly indi-
cated that “the Legislature is in a position far superior
to plaintiffs’ to determine what the actual cost to itself
would be if it performed the increased recordkeeping
and reporting duties.” Id. at 489. Indeed, the majority
opined that “[t]he dispositive issue is the cost to the
state if it were to provide the new or increased activity
or service, not the cost incurred by the local governmen-
tal unit.” Id.
With these principles in mind, and considering the
Adair I majority’s ruling that the POUM provision did
not place the burden on plaintiffs to show a quantified
dollar amount of any increase in necessary costs asso-
ciated with complying with a state mandate, we con-
clude that plaintiffs’ “higher burden” must be some-
thing less than proving “how much the school districts’
costs increased as a result of the mandate” or of
“specific dollar-amount increases in the costs incurred
in order to comply with the CEPI requirements.” Adair
I, 486 Mich at 486-487, 488. We also conclude that the
higher burden borne by plaintiffs is the burden to
present sufficient evidence to allow the trier of fact to
conclude that the method employed by the Legislature
to determine the amount of the appropriation was so
flawed that it failed to reflect the “actual cost to the
state if the state were to provide the activity or service
mandated as a state requirement....”MCL21.233(6).
We further conclude, after reviewing the report of
plaintiffs’ cost accounting expert, that plaintiffs stood
ready to present some evidence that, if determined
credible by the trier of fact, would have undermined the
validity of the method used by the Legislature to
316 302 M
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determine the amount of the appropriations at issue
and that would have shifted the burden of going for-
ward with evidence to the state to present some evi-
dence that the appropriations do fully fund the state’s
obligation under the POUM provision. Accordingly, we
remand this matter to the special master for the re-
opening of proofs and the finding of facts regarding
plaintiffs’ claim that the existing appropriations do not
fully fund the necessary costs of the CEPI mandates.
3
II
We agree with the special master, however, that the
Legislature did not impose unfunded mandates upon
the school districts in violation of the POUM provision,
as a matter of law, when it enacted 2011 PA 100 through
2011 PA 103. None of these public acts imposes new or
increased activities on the school districts within the
meaning of the POUM provision and, therefore, the
POUM provision is not implicated.
The Headlee Amendment requires the state to fund
the necessary costs of new or increased activities or
services mandated by the state, Adair I, 486 Mich at
478-479; Adair II, 470 Mich at 110, as reflected by the
following language of the amendment:
A new activity or service or an increase in the level of
any activity or service beyond that required by existing law
shall not be required by the legislature or any state agency
of units of Local Government, unless a state appropriation
is made and disbursed to pay the unit of Local Government
for any necessary increased costs. [Const 1963, art 9, § 29.]
3
For these same reasons, we reject the state’s claim that the special
master erred when he failed to summarily dismiss the school districts’
challenge to the adequacy of the appropriation earlier in the proceedings
on the basis of the districts’ inability to prove an actual quantified
amount of underfunding.
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Section 34 of the Headlee Amendment obligates the
Legislature to implement §§ 25 through 33 of the
Amendment. Const 1963, art 9, § 34; Owczarek v Michi-
gan, 276 Mich App 602, 604; 742 NW2d 380 (2007).
Pursuant to this grant of authority, the Legislature
enacted 1979 PA 101, MCL 21.231 et seq., which in-
cludes, inter alia, several definitions for terms used in
the various sections of the Headlee Amendment. MCL
21.232; MCL 21.233; MCL 21.234; Owczarek, supra.
Included in these provisions is the definition of the term
“activity,” which the Legislature has defined as “a
specific and identifiable administrative action of a local
unit of government.” MCL 21.232(1). The next sentence
clarifies that “[t]he provision of a benefit for, or the
protection of, public employees of a local unit of govern-
ment is not an administrative action.” Id. (emphasis
added).
Plaintiffs assert that the four public acts at issue
mandate new or increased activities or services within
the meaning of the POUM provision. These public acts
amend various provisions of the Revised School Code,
the teacher tenure act, and PERA. Generally, among
other activities, the amendments require the implemen-
tation of an annual employee evaluation system for
teachers and certain school administrators, allow a
tenured teacher to be demoted or discharged upon a
showing that the reason for demotion or discharge is
not “arbitrary and capricious,” and add new subjects
that may not be topics of collective bargaining between
a public school employer and a bargaining representa-
tive of its employees. The special master rejected plain-
tiffs’ position for the reason that “the Tenure Reforms
involve benefits for employees and do not involve state
mandated services or activities that require payment
under the Headlee Amendment.” The special master
correctly determined that the public acts at issue do not
318 302 M
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impose state-mandated activities within the meaning of
MCL 21.232(1)
4
and the POUM provision.
Michigan jurisprudence has long recognized that the
teacher tenure act protects public teachers from the
arbitrary and capricious employment practices of school
boards. Tomiak v Hamtramck Sch Dist, 426 Mich 678,
686-687; 397 NW2d 770 (1986); Rehberg v Melvindale
Bd of Ed, Ecorse Twp Sch Dist No 11, 330 Mich 541,
548; 48 NW2d 142 (1951); Goodwin v Kalamazoo Bd of
Ed, 82 Mich App 559, 573; 267 NW2d 142 (1978).
Regardless of whether the challenged amendments to
the tenure act reduce or increase the protections af-
forded to tenured teachers, the simple fact of the matter
is that the public acts merely modify existing protec-
tions and, thus, still provide a level of protection to
tenured public teachers against the arbitrary and capri-
cious employment practices of administrators and
school boards. Under such circumstances, the new
requirements imposed by the amended tenure act do
not constitute activities under MCL 21.232(1) and,
hence, the POUM clause.
Similarly, the revisions made to the Revised School
Code do not implicate the POUM provision. The man-
dated teacher and administrator evaluation processes
impose standardized evaluation processes on the school
districts, pursuant to which the effectiveness of teach-
ers and administrators may be documented and re-
warded. In addition, the processes provide a means by
4
The Legislature defined the term “service” for purposes of § 29 as a
“program of a local unit of government which is available to the general
public or is provided for the citizens of the local unit of government.”
MCL 21.234(1). Because the evaluation and tenure processes are not
available to or provided for the general public, these processes do not
constitute a program, and MCL 21.234(1) is not implicated on the facts of
this case. We decline to address the constitutionality of MCL 21.234(1)
when the statute has no application.
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which to identify ineffective teachers and administra-
tors and to provide those employees so identified with
plans designed to improve their effectiveness. Thus,
much like the modifications to the tenure act, the
revisions to the Revised School Code provide protec-
tions to public employees. The question is not whether
the state mandate has some adverse fiscal consequence
on the unit of local government, but instead, whether
the mandate imposes new or increased activities within
the meaning of the POUM provision. In this case, this
question must be answered in the negative.
Plaintiffs assert, however, that the public employee
benefit or protection exception found in the last sen-
tence of MCL 21.232(1) is facially unconstitutional
because the exception precludes the school districts
from recovering from the state the necessary supervi-
sory and administrative costs of complying with the
new or increased activities mandated by the public acts.
According to plaintiffs, this exception violates the in-
tent of the voters who ratified the Headlee Amendment,
because those voters did not intend any exceptions to an
application of the POUM provision, as revealed by the
clear and plain language of the provision, which sets
forth no exceptions.
Plaintiffs correctly observe that “[t]he state may not
avoid the clear requirements of art 9, § 29 either by
specific statute or by implementation of definitions
adverse to the mandate of the people.” Durant v State
Bd of Ed, 424 Mich 364, 392; 381 NW2d 662 (1985)
(Durant I). The definitions found in MCL 21.232(1) and
MCL 21.234(1) are not adverse to the mandate of the
people, however. This Court has previously determined
that MCL 21.232(1) and MCL 21.234(1) “are correct in
their construction of the constitutional language” of
§ 29. Detroit Mayor v Michigan, 228 Mich App 386, 399
320 302 M
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n 8; 579 NW2d 378 (1998), aff’d 459 Mich 291 (1998),
mod 460 Mich 590 (1999). Also, in Owczarek, 276 Mich
App at 611, this Court determined that the Legisla-
ture’s codification of “an existing traditional remedy for
the protection of a public employee whose termination
or suspension under 2005 PA 130 is subsequently
vacated” did not constitute an “activity” or “service”
within the meaning of the POUM clause. This ruling
establishes at least one circumstance under which an
application of the benefit and protection exception is
valid. In re Request for Advisory Opinion, 479 Mich 1,
11; 740 NW2d 444 (2007) (stating that a party challeng-
ing the facial constitutionality of a statute must estab-
lish that no circumstances exist under which it would
be valid). Thus, plaintiffs’ challenge to the constitution-
ality of MCL 21.232(1) fails.
Finally, the revision of PERA does not implicate the
POUM provision. The addition of subjects that may not
be topics of collective bargaining between a public
school employer and a bargaining representative of its
employees does not impose any state-mandated “activ-
ity” or “service.” Rather, 2011 PA 103 merely removes
any impediments to the implementation of the amend-
ments to the teacher tenure act and the Revised School
Code by preventing a public school employer and a
bargaining representative of its employees from enter-
ing into a collective bargaining agreement, the terms of
which would render null the new requirements imposed
by the Legislature under the school code and the tenure
act.
III
We also agree with the special master that our prior
decisions in Durant v Michigan (On Remand), 238 Mich
App 185; 605 NW2d 66 (1999) (Durant II), and Durant
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321
v Michigan, 251 Mich App 297; 650 NW2d 380 (2002)
(Durant III) require us to reject plaintiffs’ challenge to
the constitutionality of the funding scheme employed
by the Legislature to reimburse the school districts for
the necessary increased costs they incurred in order to
comply with the CEPI recordkeeping mandates.
The Legislature appropriates and disburses school
funding through annual amendments to the State
School Aid Act, MCL 388.1601 et seq. Schmidt v Dep’t of
Ed, 441 Mich 236, 244; 490 NW2d 584 (1992); Durant
II, 238 Mich App at 194. The Legislature appropriates
total annual school funding through MCL 388.1611,
which is § 11 of each annual act. See 2010 PA 217, § 11;
2011 PA 62, § 11. From § 11(1), the Legislature then
allocates to § 152a the funding to reimburse the school
districts for compliance with the CEPI recordkeeping
mandates, as required by Adair I. The Legislature
allocated $25,624,500 from § 11 to § 152a for the 2010-
2011 school year and $34,064,500 from § 11 to § 152a
for the 2011-2012 school year. See § 152a of 2010 PA 217
and 2011 PA 62; MCL 388.1752a. Each allocation is
accompanied by the restriction that the funds be “used
solely for the purpose of paying necessary costs related
to the state-mandated collection, maintenance and re-
porting of data to the state” as required by Adair I. See
§ 152a of 2010 PA 217 and 2011 PA 62. The funds for
the 2010-2011 and 2011-2012 § 152a allocations were
obtained by a reallocation of a portion of the annual per
pupil foundation allowance through § 11d(1), 2010 PA
217, MCL 388.1611d(1).
Plaintiffs allege that these § 152a allocations violate
Const 1963, art 9, §§ 25 and 29 because the allocations
reduce the overall aid to local schools appropriated in
§ 11 of the State School Aid Act and thereby shift the
tax burden for the necessary costs of the recordkeeping
322 302 M
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mandates to local schools by allowing the state to use
general operating revenue of the school districts to pay
for those mandates. Plaintiffs further allege that these
§ 152a allocations violate Proposal A because the allo-
cations reduce the general per pupil foundation allow-
ance allocation, which is constitutionally guaranteed to
be provided to each school district solely for the school
operating purposes of each district, by reallocating
these otherwise guaranteed funds to a separate cat-
egorical funding allocation for the CEPI mandates.
According to plaintiffs, because the § 152a allocations
were unconstitutionally funded, the Legislature actu-
ally provided no funding to reimburse the school dis-
tricts for the necessary cost of complying with the
recordkeeping mandates.
In Durant III, 251 Mich App at 304-310, this Court
ruled that the Legislature may allocate that portion of
the per pupil Proposal A foundation allowance over and
above the base level required by Proposal A to satisfy
the state’s funding obligations under the Headlee
Amendment. Likewise, in Durant II, 238 Mich App at
206-209, this Court ruled that § 29 of the Headlee
Amendment did not preclude use of the foundation
allowance to fund the state’s Headlee obligations. This
panel is bound under the rule of stare decisis to honor
the precedential effect of Durant II and Durant III.
MCR 7.215(C)(2). Consequently, like the special master,
we reject plaintiffs’ challenge to the constitutionality of
the funding scheme employed in 2010 PA 217 and 2011
PA 62 in reliance on Durant II and Durant III.
IV
We also reject, as did the special master, the state’s
claim that plaintiffs’ action is barred by an application
of the doctrine of res judicata.
2013] A
DAIR V
M
ICHIGAN
323
The rules governing the application of the doctrine of
res judicata were cogently summarized in Adair II, 470
Mich at 121, as follows:
The doctrine of res judicata is employed to prevent
multiple suits litigating the same cause of action. The
doctrine bars a second, subsequent action when (1) the
prior action was decided on the merits, (2) both actions
involve the same parties or their privies, and (3) the matter
in the second case was, or could have been, resolved in the
first instance. Sewell v Clean Cut Mgt, Inc, 463 Mich 569,
575; 621 NW2d 222 (2001). This Court has taken a broad
approach to the doctrine of res judicata, holding that it bars
not only claims already litigated, but also every claim
arising from the same transaction that the parties, exer-
cising reasonable diligence, could have raised but did not.
Dart v Dart, 460 Mich 573, 586; 597 NW2d 82 (1999).
“ ‘Whether a factual grouping constitutes a “transac-
tion” for purposes of res judicata is to be determined
pragmatically, by considering whether the facts are
related in time, space, origin or motivation, [and]
whether they form a convenient trial unit....’”Adair
II, 470 Mich at 125, quoting 46 Am Jur 2d, Judgments
§ 533, p 801.
Plaintiffs’ challenge to the constitutionality of the
teacher and administrator evaluation requirements is
not barred by res judicata. The Legislature initially
enacted these evaluation requirements in 2009 PA 205,
which became effective on January 4, 2010, a decade
after the passage of the legislation that is the subject of
Adair I, 18 months after this Court issued the declara-
tory judgment in favor of the Adair I plaintiffs on July
3, 2008, Adair v Michigan (On Second Remand), 279
Mich App 507; 760 NW2d 554 (2008), aff’d in part and
rev’d in part 486 Mich 468 (2010), and just six months
before our Supreme Court affirmed the entry of the
declaratory judgment in Adair I. Under these circum-
324 302 M
ICH
A
PP
305 [Aug
stances, plaintiffs’ claims relating to the teacher and
administrator evaluation mandates do not “form a
convenient trial unit” with the claims raised by the
plaintiffs in Adair I because the latter claims were all
resolved by the time any constitutional claims relating
to 2009 PA 205 accrued and, thus, the claims do not
arise from the same transactional setting as the Head-
lee challenge litigated in Adair I. See Mich Adventure,
Inc v Dalton Twp, 290 Mich App 328, 333; 802 NW2d
353 (2010) (stating that a final judgment is a court’s last
action that settles the rights of the parties and disposes
of all issues in controversy, except for an award of costs
and sometimes attorney fees). A res judicata defense is
unavailable to the state on these facts.
Likewise, plaintiffs’ claim that the Legislature failed
to fully fund the necessary costs of the recordkeeping
mandates is not barred by an application of res judicata.
As previously observed, plaintiffs allege the amounts
appropriated by the Legislature in § 152a of 2010 PA
217 and in § 152a of 2011 PA 62 are insufficient to fully
reimburse the school districts for the necessary costs of
the recordkeeping mandates, that § 152a violates the
POUM provision for this reason, and that § 152a vio-
lates § 25 of the Headlee Amendment by reducing the
proportion of state aid to local schools and shifting the
tax burden for that reduced aid to local taxpayers. 2010
PA 217 became effective on December 3, 2010, almost
five months after our Supreme Court’s decision in
Adair I issued. 2011 PA 62 became effective on June 21,
2011, almost one year after our Supreme Court’s deci-
sion in Adair I issued. Consequently, any cause of action
for underfunding associated with these public acts
arose well after the resolution of the claims that were
the subject of the Adair I litigation. The instant claims
are not related to the claims in Adair I in time, space,
and origin. Moreover, a challenge predicated on a claim
2013] A
DAIR V
M
ICHIGAN
325
that a mandated activity or service is not fully funded as
required by the POUM provision, which is asserted
after a judicial determination that the challenged activi-
ties or services are state mandates for purposes of the
Headlee Amendment, is generally brought as a new
action. See, e.g., Durant III, 251 Mich App 297.
V
Finally, the state argues as a defense that the $3
billion-plus appropriation of discretionary funds found
in § 22 of both 2010 PA 217 and 2011 PA 62 satisfies the
state’s obligation under the POUM provision for the
2010-2011 and 2011-2012 school years. The special
master rejected this argument, as do we. The state’s
argument was expressly rejected in Adair (On Second
Remand), 279 Mich App at 521-525. Our ruling remains
unaltered by the Supreme Court. Thus, we are bound
by our prior decision. MCR 7.215(C)(2).
VI
A declaratory judgment is granted, in part, to the
state consistent with this opinion. We remand this
matter to the special master to reopen proofs and to
make factual findings regarding plaintiffs’ claim that
the existing appropriations do not fully fund the neces-
sary costs of the CEPI mandates. We retain jurisdiction.
O’C
ONNELL
,P.J., and T
ALBOT
and O
WENS
, JJ., con-
curred.
326 302 M
ICH
A
PP
305 [Aug
PEOPLE v PROMINSKI
Docket No. 309682. Submitted June 11, 2013, at Grand Rapids. Decided
August 22, 2013, at 9:05 a.m.
John J. Prominski, a pastor at Resurrection Life Church, was
charged in the 64th District Court with violating the Child
Protection Law, MCL 722.621 et seq., by failing to report child
abuse after a member of the church expressed her concerns to
defendant that her husband might be sexually abusing their
daughters. The court, Raymond P. Voet, J., granted defendant’s
motion to dismiss the charge, concluding that the communication
was privileged and that the privilege was not abrogated by MCL
722.631 because it was a confession or similarly confidential
communication. The Ionia Circuit Court, Suzanne H. Kreeger, J.,
affirmed. The prosecution appealed by leave granted.
The Court of Appeals held:
Various individuals, including members of the clergy, are re-
quired to report suspected child abuse under MCL 722.623(1).
Under MCL 722.631, any legally recognized privileged communi-
cation, except that between attorney and client or that made to a
member of the clergy in his or her professional character in a
confession or similarly confidential communication, is abrogated
and shall not constitute grounds for excusing a report otherwise
required to be made. The plain language of the statute indicates
that confessions and other communications that are similarly
confidential fall under the exception when the communication is
made to a member of the clergy in his or her professional
character. A similarly confidential communication is one that the
church member expects to be kept private or secret. In this case,
the district court found that the mother went to defendant for
guidance and expected that the conversation would be kept
private. The circuit court affirmed, noting that the mother had
approached defendant in his role as pastor, seeking pastoral
guidance with an expectation of privacy. The factual findings of the
lower courts were not clearly erroneous. Thus, while the mother
did not make a confession, she had a similar expectation that the
communication would not be shared. Therefore, the communica-
2013] P
EOPLE V
P
ROMINSKI
327
tion fell under the exception in MCL 722.631, and defendant was
not required to make a report under MCL 722.623(1)(a).
Affirmed.
C
RIMINAL
L
AW —
C
HILD
P
ROTECTION
L
AW —
C
HILD
A
BUSE
R
EPORTING
R
EQUIRE-
MENTS —
M
EMBERS OF THE
C
LERGY —
C
ONFESSIONS AND
S
IMILARLY
C
ONFI-
DENTIAL
C
OMMUNICATIONS
.
Under MCL 722.631, any legally recognized privileged communica-
tion, except that between attorney and client or that made to a
member of the clergy in his or her professional character in a
confession or similarly confidential communication, is abrogated
and shall not constitute grounds for excusing a failure to report
suspected child abuse under the Child Protection Law, MCL
722.621 et seq.; a “similarly confidential communication” is one
that the church member expects to be kept private or secret.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Ronald J. Schafer, Prosecuting Attor-
ney, and Kristen Stinedurf, Assistant Prosecuting At-
torney, for the people.
Bruce A. Block for defendant.
Before: B
ORRELLO
,P.J., and S
AWYER
and S
ERVITTO
,JJ.
P
ER
C
URIAM
. We are asked in this case whether a
clergyman is obligated under the Child Protection Law,
MCL 722.621 et seq., to report child abuse when he is
told by a parishioner that the parishioner’s husband is
abusing her children and she is seeking the pastor’s
advice and guidance on how to proceed. We hold that,
under those circumstances, a clergyman is not obligated
to report the suspected child abuse to police.
In 2009, defendant was the pastor at Resurrection
Life Church in Ionia and was approached by a parish-
ioner regarding her concerns that her husband was
abusing her daughters. The parishioner testified as
follows at a hearing to dismiss the charges:
328 302 M
ICH
A
PP
327 [Aug
I didn’t know what to do, because I had found out that
my husband at the time had my girls touch themselves [in
their genital areas], and I went to [defendant], because I
didn’t know what to do--if I should--I wanted [my husband]
to get help and I didn’t know if I should get help or what we
should do. So I went to him to find out what to do, because
I wanted [my husband] to get help and I didn’t know
what--if--it was something I wasn’t sure if it was crossing
the line or not crossing the line, because [my husband]
admitted to it at the time, and said he didn’t watch. The
girls said he didn’t look at him [sic], so I didn’t know what
to do.
She further testified that she went to defendant be-
cause he was her pastor, she did not know what to do,
and she wanted to know what he thought—whether she
should make a report when her husband did not actu-
ally touch the girls and he had a “weird reason” for
doing it.
When asked if she thought defendant would keep the
information confidential, she stated, “I expected Pastor
John to know what to do with it. If we had to go turn it
in, I would--that we would have to go turn it in, but he
thought he could help [my husband].” She did not
expect defendant to share this information at a worship
service or with people in the congregation. She was
questioned regarding her expectation of privacy:
Q. You expected him to keep it private?
A. Between our family, yes.
Q. Confidential?
A. Or the authorities--whoever needed to know[.]
She further testified that she went to defendant for
family and spiritual guidance and spiritual advice. She
also expected guidance on whether this needed to be
reported to law enforcement. She told defendant she
was willing to report it if necessary. She asked defen-
2013] P
EOPLE V
P
ROMINSKI
329
dant to meet with her husband. She could not remem-
ber if she met with defendant at the church, but she
thought she had called him. She testified that she
talked with him alone and no one else was listening to
the conversation.
The mother went to defendant again in 2011 after an
additional incident. She explained:
I woke up to my daughter screaming and I asked
her--[my husband] was in her room and I asked her what
happened? And she said I hate you, I hate you--she said--I
woke up to her screaming I hate you, I hate you, don’t ever
touch me again. I went in there and she said--I asked her
what happened (crying)? And she said that he was touching
her.
When she went to defendant in 2011, he told her she
needed to report it or else he would. It was during the
investigation of this incident that the police learned
about the 2009 report by the mother to defendant.
Defendant was charged with failure to report child
abuse. MCL 722.633(2). He moved in district court to
dismiss the charge based on privilege. The district court
determined that the privilege applied and dismissed the
charges. The prosecution appealed in circuit court,
which affirmed. The prosecution now appeals in this
Court by leave granted. We affirm.
Various individuals, including members of the clergy,
are required under MCL 722.623(1) to report suspected
child abuse. MCL 722.631 abrogates privilege with
respect to the reporting statute, except for the attorney-
client and the clergy-parishioner privileges:
Any legally recognized privileged communication except
that between attorney and client or that made to a member
of the clergy in his or her professional character in a
confession or similarly confidential communication is ab-
rogated and shall not constitute grounds for excusing a
330 302 M
ICH
A
PP
327 [Aug
report otherwise required to be made or for excluding
evidence in a civil child protective proceeding resulting
from a report made pursuant to this act.
Two other statutes address communications with mem-
bers of the clergy. MCL 600.2156 specifically prohibits
disclosure of confessions:
No minister of the gospel, or priest of any denomination
whatsoever, or duly accredited Christian Science practitio-
ner, shall be allowed to disclose any confessions made to
him in his professional character, in the course of discipline
enjoined by the rules or practice of such denomination.
MCL 767.5a(2) provides the evidentiary privilege for
communications between members of the clergy and
members of a church:
Any communications between attorneys and their cli-
ents, between members of the clergy and the members of
their respective churches, and between physicians and their
patients are hereby declared to be privileged and confiden-
tial when those communications were necessary to enable
the attorneys, members of the clergy, or physicians to serve
as such attorney, member of the clergy, or physician.
The issue is whether the mother communicated with
defendant “in his....professional character in a con-
fession or similarly confidential communication....”
MCL 722.631. There is no dispute that defendant was a
member of the clergy or that the mother talked with
defendant in his professional character. There appears
to be no Michigan case applying MCL 722.631 in a
context similar to the instant case.
When interpreting a statute, the primary goal is to
“give effect to the intent of the Legislature.” People v
Barrera, 278 Mich App 730, 735; 752 NW2d 485 (2008).
“The objective of statutory interpretation is to discern
the intent of the Legislature from the plain language of
the statute.” Id. at 735-736. Statutory interpretation
2013] P
EOPLE V
P
ROMINSKI
331
begins “by examining the plain language of the statute;
where that language is unambiguous, we presume that
the Legislature intended the meaning clearly
expressed—no further judicial construction is required
or permitted, and the statute must be enforced as
written.” Id. at 736 (quotation marks and citation
omitted). When undefined by the statute, a “word or
phrase must be accorded its plain and ordinary mean-
ing....”People v Ryan, 295 Mich App 388, 400; 819
NW2d 55 (2012) (quotation marks and citation omit-
ted). “If a statute does not expressly define its terms, a
court may consult dictionary definitions.” People v
Gregg, 206 Mich App 208, 211-212; 520 NW2d 690
(1994). Additionally, a statute should be considered as a
whole “to harmonize its provisions and carry out the
purpose of the Legislature.” People v Blunt, 282 Mich
App 81, 83; 761 NW2d 427 (2009) (quotation marks and
citation omitted). Further, when interpreting a statute,
“every word should be given meaning, and we should
avoid a construction that would render any part of the
statute surplusage or nugatory.” People v Peltola, 489
Mich 174, 181; 803 NW2d 140 (2011) (quotation marks
and citation omitted).
This Court, in People v Bragg, 296 Mich App 433,
452-453; 824 NW2d 170 (2012), considered the meaning
of “privileged communications” and “confidential com-
munications” in the context of analyzing MCL
767.5a(2):
In legal parlance, “privileged communications” are
“[t]hose statements made by certain persons within a
protected relationship such as...priest-penitent...
which the law protects from forced disclosure on the
witness stand....” Black’s [Law Dictionary] (6th ed),
p 1198; see also Webster’s [New World Dictionary of the
American Language (2d college ed)], p 1131 (stating that a
“privileged communication” is a statement “that one can-
332 302 M
ICH
A
PP
327 [Aug
not legally be compelled to divulge, as that to a lawyer from
his client”). “Confidential communication[s]” include
“[p]rivileged communications such as those
between...confessor-penitent” but also include “state-
ment[s] made under circumstances showing that [the]
speaker intended [the] statement only for [the] ears of
[the] person addressed....” Black’s (6th ed), p 298; see
also Webster’s, p 297 (stating that “confidential” means
“told in confidence; imparted in secret”).
The word “confidential” is defined as “spoken, written,
or acted on in strict confidence; secret; private.” Ran-
dom House Webster’s College Dictionary (1997). Thus,
the plain language of the statute, considering the dic-
tionary definition of “confidential” and the definition of
“confidential communication” as set forth by this Court
in Bragg, supports that a “similarly confidential com-
munication” is one that the church member expects to
be kept secret or private.
The prosecution appears to argue that “similarly
confidential communication” must only refer to confes-
sional communications because the prosecution’s posi-
tion is that conversations are only covered if the church
member discusses his or her own actions. Presumably,
the prosecution reads “similarly” to relate to the word
“confession,” and relying on that premise the prosecu-
tion concludes that “similarly confidential communica-
tion” refers to only communications that are confes-
sional in nature. However, when interpreting a statute,
a construction that “render[s] any part of the statute
surplusage or nugatory” should be avoided. Peltola, 489
Mich at 181. The prosecution’s interpretation, that the
communication must concern the speaker’s own ac-
tions, renders the entire phrase “similarly confidential
communication” as surplusage because it would have
the same meaning as “confession.” The word “confes-
sion” is first defined as “acknowledgment; avowal;
2013] P
EOPLE V
P
ROMINSKI
333
admission.” Random House Webster’s College Dictio-
nary (1997). The second definition of “confession” is
“acknowledgment or disclosure of sin, [especially] to a
priest to obtain absolution.” Id. The word “avowal” is
defined as “an open statement of affirmation; frank
acknowledgment or admission.” Id. The prosecution’s
position ignores the rules of statutory construction.
In the statute at issue, MCL 722.631, “similarly”
modifies “confidential communication.” When constru-
ing a statute, the place and purpose of words in the
statutory scheme are considered. McCormick v Carrier,
487 Mich 180, 192; 795 NW2d 517 (2010). “[S]tatutory
language must be read within its grammatical context.”
Greater Bethesda Healing Springs Ministry v Evangel
Builders & Constr Managers, LLC, 282 Mich App 410,
414; 766 NW2d 874 (2009). An adjective must modify a
noun or pronoun. See In re Forfeiture of $5,264, 432
Mich 242, 254 n 10; 439 NW2d 246 (1989). The adjec-
tive “confidential” modifies the noun “communica-
tion.” That adjective is further modified by the place-
ment of the adverb “similarly” before it. An adverb can
modify an adjective. See id. at 254 n 9; Random House
Webster’s College Dictionary (1997), p 19 (defining “ad-
verb”). Thus, the plain language of the statute clearly
reveals that the privilege applies to confessions and
other communications that are similarly confidential.
Moreover, MCL 722.631 refers to “a confession or
similarly confidential communication....”(Emphasis
added.) The word “or” “indicates an alternative or
choice between two things.” Beauregard-Bezou v Pierce,
194 Mich App 388, 394; 487 NW2d 792 (1992). Thus,
while “confession” refers to an acknowledgment or an
admission, “similarly confidential communication” re-
fers to a communication for which the member of the
church has an expectation the communication will be
334 302 M
ICH
A
PP
327 [Aug
kept secret or private, similar to the expectation they
would have for a confession. This interpretation also
properly avoids rendering “similarly confidential com-
munication” redundant and surplusage.
Additionally, MCL 767.5a(2), the evidentiary privi-
lege, makes “[a]ny communications...privileged and
confidential when those communications were neces-
sary to enable the...members of the clergy...to
serve as such...member of the clergy....”TheBragg
decision suggested that this included communications
in which the clergy helped the “spiritually sick” or
provided “consolation to suppliants who [came] in re-
sponse to the call of conscience” and could include
disclosures made during a “counseling” session in an
informal setting. Bragg, 296 Mich App at 459-462
(quotation marks and citation omitted). This squarely
fits the circumstances in the case at bar, in which the
mother approached her pastor for his advice on how to
handle this circumstance happening in her family.
The differences between MCL 600.2156 and MCL
767.5a(2) are also instructive. MCL 600.2156 gener-
ally prohibits disclosure of confessions and only re-
fers to “any confessions made to [a minister, priest, or
Christian Science practitioner] in his professional
character, in the course of discipline enjoined by the
rules or practice of such denomination.” On the other
hand, MCL 767.5a(2), as previously noted, refers
more broadly to communications that are necessary
for the member of the clergy to serve as such. The
differing language used in both statutes demon-
strates the Legislature’s ability to craft statutes that
only implicate confessions and to craft statutes im-
plicating additional communications. Turning to
MCL 722.631, it refers to both “a confession” and to
a “similarly confidential communication.” Thus,
2013] P
EOPLE V
P
ROMINSKI
335
MCL 722.631, like MCL 767.5a(2), clearly refers to
more than just confessions.
The prosecution briefly raises some additional argu-
ments that we also briefly address. First, the prosecu-
tion, relying on an unpublished opinion of this Court,
argues that the privilege does not apply when a third
party relays information to the clergyman. This would
apply to the “confession” aspect of the privilege, but not
to the “similarly confidential communication” aspect.
Next, the prosecution argues that defendant’s own
statements reflect that he did not believe that he was
prevented from reporting the abuse because of privi-
lege. But we fail to see the relevance of defendant’s legal
expertise with respect to the reporting statute or the
law of privilege. Finally, the prosecution argues that the
mother had expressed her willingness to waive any
privilege. There is, however, a distinction between being
willing to waive a privilege and actually waiving it. We
are unaware of any evidence that the mother actually
requested that defendant report her husband’s behav-
ior; rather, she asked defendant to meet with her
husband. Indeed, the entire purpose of her consultation
with defendant was to make the decision whether she
should report it and, apparently, she made the decision
(in 2009) not to report the behavior and, instead, rely on
her husband seeking counseling and reforming his
behavior.
For these reasons, we hold that under MCL 722.631
a communication is within the meaning of “similarly
confidential communication” when the church member
does not make an admission, but has a similar expecta-
tion that the information will be kept private and
secret. In the case at bar, the district court made a
finding of fact that the mother went to defendant “for
guidance, advice and expected that the conversation be
336 302 M
ICH
A
PP
327 [Aug
kept private.” The district court determined, “I can’t
find anything but that this was done within exactly
what the privilege was intended to target” and con-
cluded that MCL 722.631 applied. The circuit court
affirmed this factual finding and noted that the mother
“was approaching [defendant] in his role as a Pastor,
that she was seeking his pastoral guidance and that for
that reason, there was the expectation of privacy.” The
circuit court also noted that she “clearly testified as well
that she did expect for this to be a confidential commu-
nication between her and within her family.” We are not
persuaded that these factual findings were clearly erro-
neous. See People v Aldrich, 246 Mich App 101, 116; 631
NW2d 67 (2001). Thus, in this case, although the
mother did not make a confession, she had a similar
expectation the communication would not be shared.
Therefore, the communication fell under MCL 722.631,
and defendant was not required to make a report
pursuant to MCL 722.623(1)(a). The motion to dismiss
was properly granted.
Affirmed.
B
ORRELLO
,P.J., and S
AWYER
and S
ERVITTO
, JJ., con-
curred.
2013] P
EOPLE V
P
ROMINSKI
337
PEOPLE v LEWIS
Docket No. 310949. Submitted May 8, 2013, at Lansing. Decided August 27,
2013, at 9:00 a.m. Leave to appeal sought.
Heidi L. Lewis was charged in the Bay Circuit Court with several counts
of third-degree criminal sexual conduct. The charges were based on
alleged sexual penetration engaged in by Lewis, an alleged substitute
teacher or contractual service provider, with several students in the
school district. The court, Kenneth W. Schmidt, J., eventually dis-
missed the charges on the basis that the alleged sexual penetrations
occurred during the students’ summer break from school. The
prosecution appealed.
The Court of Appeals held:
The trial court erred by holding that MCL 750.520d(1)(e)(i) and
(ii) preclude the prosecution of a substitute teacher or contractual
service provider for alleged sexual penetration that occurs in the
summer when the actor is not acting as a complainant’s substitute
teacher or contractual service provider. The plain language of the
statute does not contain any temporal requirement regarding the
timing of the sexual penetration. The statute does not state that the
sexual penetration must occur while a defendant is acting as a
substitute teacher or contractual service provider at a complainant’s
school. If a prohibited sexual penetration by a substitute teacher or
contractual service provider occurs before school, after the school bell
rings at the end of the day, on a weekend, or during the summer,
prosecution under the statute is not foreclosed. If the actor’s occupa-
tion as a substitute teacher or contractual service provider at a school
of a student of the relevant age group allowed the actor access to the
student in order to engage in sexual penetration, the Legislature
intended to punish that conduct. The order of the trial court is
reversed and the matter is remanded to the trial court for reinstate-
ment of the charges and further proceedings.
Reversed and remanded.
T
HIRD
-D
EGREE
C
RIMINAL
S
EXUAL
C
ONDUCT —
S
UBSTITUTE
T
EACHERS —
C
ONTRAC-
TUAL
S
ERVICE
P
ROVIDERS —
S
TUDENTS
.
A defendant is guilty of third-degree criminal sexual conduct if he or
she engages in sexual penetration with a public school student or a
338 302 M
ICH
A
PP
338 [Aug
nonpublic school student who is at least 16 years of age and less than
18 years of age and the defendant is a substitute teacher or a
contractual service provider at the student’s school; there is no
temporal requirement regarding the timing of the sexual penetra-
tion; if a defendant’s occupation as a substitute teacher or contractual
service provider allowed access to a student of the relevant age group
in order for the defendant to engage in sexual penetration with the
student, prosecution is not foreclosed by the fact that the sexual
penetration occurred during nonschool hours, on a weekend, or
during the summer vacation period (MCL 750.520d[1][e]).
Bill Schuette, Attorney General, John J. Bursch, So-
licitor General, Kurt C. Asbury, Prosecuting Attorney, and
Sylvia L. Linton, Assistant Prosecuting Attorney, for the
people.
Mathieu & Lee, PLC (by Courtney L. Thom), for
defendant.
Before: F
ORT
H
OOD
,P.J., and F
ITZGERALD
and
O’C
ONNELL
,JJ.
P
ER
C
URIAM
. The prosecution appeals as of right the
trial court’s order dismissing the charges of third-degree
criminal sexual conduct, MCL 750.520d(1)(e). We reverse
and remand for proceedings consistent with this opinion.
In the summer of 2010,
1
the complainants alleged that
1
An appellate brief must contain a statement of all material facts, both
favorable and unfavorable, presented fairly without argument or bias with
specific page references to the transcripts. MCR 7.212(C)(6) and (7). A brief
that does not conform to the requirements of the court rule may be stricken.
MCR 7.212(I). Additionally, the appellant is responsible for securing the
complete transcript of all proceedings unless excused by court order or the
parties’ stipulation. MCR 7.210(B)(1). Although a trial was in progress in
this case at the time a second mistrial was declared, the prosecution does not
rely on the testimony set forth during trial, but sets forth a statement of
facts premised on written police reports. Generally, police reports are
inadmissible hearsay. MRE 801(c); MRE 802; In re Forfeiture of a Quantity
of Marijuana, 291 Mich App 243, 254; 805 NW2d 217 (2011). Although
transcripts of the trial in progress were submitted, the entire transcript was
2013] P
EOPLE V
L
EWIS
339
they engaged in sexual acts with defendant, an alleged
substitute teacher in their school district. A first trial
ended in a mistrial purportedly because of juror miscon-
duct.
2
In the course of the second trial, the prosecutor
sought to amend the charges to alternatively allege that
the sexual acts may have occurred when defendant was a
contractual service provider. The judge allowed the pros-
ecutor to amend the charges, but declared a mistrial at the
request of the defense and later granted a defense motion
for disqualification of the judge. The successor judge
requested that the parties address the issue whether the
statute applied if the alleged sexual acts between the
complainants and defendant occurred during the summer.
Ultimately, the trial court dismissed the charges, holding,
as a matter of law, that the statute provides that defen-
dant “is a substitute teacher,” and it was undisputed that
school was out of session because of the summer break at
the time of the alleged acts.
3
From that decision, the
prosecution appeals as of right.
not provided, rather only the cross-examination of certain witnesses was
transcribed. Because the issue presented involves a question of law and
defendant did not object to the deficiencies, we will nonetheless address
the merits of the appeal on the available record despite the noncompli-
ance with the court rules.
2
We do not have a transcript of the first trial, but rely on the register
of actions.
3
This cursory statement of facts primarily devoted to the procedural
posture of the case is necessary because the prosecution presented a
statement of facts premised on the police reports, concluding that the
complainants were preyed upon by defendant. However, although it is
difficult to complete the factual picture without the direct examination,
the first complainant seemingly admitted that he had initiated the
contact with defendant. Moreover, the complainants also appeared to
acknowledge that, through texts, they wrote defendant that if she did not
cooperate with multiple sexual acts with multiple complainants they
would “tell.” This information may contradict the statements given by
the complainants as presented in the police reports. Because of the
prosecution’s noncompliance with the requirements of MCR 7.212(C)(6)
340 302 M
ICH
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338 [Aug
The prosecution contends that the trial court erred
by holding, as a matter of law, that MCL
750.520d(1)(e)(i) and (ii) preclude prosecution of a
substitute teacher or contractual service provider
when the alleged sexual acts occur in the summer. On
this limited question, we agree. A trial court’s ruling
addressing a motion to dismiss is reviewed for an
abuse of discretion. People v Nicholson, 297 Mich App
191, 196; 822 NW2d 284 (2012); People v Stephen, 262
Mich App 213, 218; 685 NW2d 309 (2004). “An abuse
of discretion occurs when the trial court chooses an
outcome falling outside the range of principled out-
comes.” People v Buie, 491 Mich 294, 320; 817 NW2d
33 (2012). When a ruling involves an interpretation of
the law or the application of law to uncontested facts,
appellate review is de novo. People v Elliott, 494 Mich
292, 300-301; 833 NW2d 284 (2013). The interpreta-
tion and application of a statute presents a question
of law that the appellate court reviews de novo. People
v Zajaczkowski, 493 Mich 6, 12; 825 NW2d 554 (2012).
“[T]he intent of the Legislature governs the interpre-
tation of legislatively enacted statutes.” People v
Bylsma, 493 Mich 17, 26; 825 NW2d 543 (2012). The
intent of the Legislature is expressed in the statute’s
plain language. People v Cole, 491 Mich 325, 330; 817
NW2d 497 (2012). When the statutory language is
plain and unambiguous, the Legislature’s intent is
clearly expressed, and judicial construction is neither
permitted nor required. Id. When interpreting a
statute, the court must avoid a construction that
would render part of the statute surplusage or nuga-
tory. People v Huston, 489 Mich 451, 462; 802 NW2d
261 (2011). “Statutes must be construed to prevent
and (7), we are unable to delineate a factual summary premised on the
trial transcripts as a whole and compare the testimony to the police
reports.
2013] P
EOPLE V
L
EWIS
341
absurd results.” People v Tennyson, 487 Mich 730,
741; 790 NW2d 354 (2010) (quotation marks, citation,
and footnote omitted). “Criminal statutes are to be
strictly construed,” and cannot be extended beyond
their clear and obvious language. People v Jahner, 433
Mich 490, 498; 446 NW2d 151 (1989).
If a statute specifically defines a term, the statutory
definition is controlling. People v Williams, 298 Mich
App 121, 126; 825 NW2d 671 (2012). When “terms are
not expressly defined anywhere in the statute, they
must be interpreted on the basis of their ordinary
meaning and the context in which they are used.”
Zajaczkowski, 493 Mich at 13. However, technical
words and phrases that have acquired a peculiar and
appropriate meaning in law shall be construed and
interpreted in accordance with that meaning. See MCL
8.3a; Bylsma, 493 Mich at 31. Additionally, when a term
is not defined in a statute, the dictionary definition of
the term may be consulted or examined. People v
Perkins, 473 Mich 626, 639; 703 NW2d 448 (2005). A
court’s reliance on dictionary definitions assists the
goal of construing undefined terms in accordance with
their ordinary and generally accepted meanings. People
v Morey, 461 Mich 325, 330-331; 603 NW2d 250 (1999).
“However, recourse to dictionary definitions is unnec-
essary when the Legislature’s intent can be determined
from reading the statute itself.” People v Stone, 463
Mich 558, 563; 621 NW2d 702 (2001). Despite the
Legislature’s failure to define a term, the intent may be
determined by examining the language of the statutes
themselves. Id.
Statutes that relate to the same matter are consid-
ered to be in pari materia. People v Perryman, 432 Mich
235, 240; 439 NW2d 243 (1989). “Statutes that address
the same subject or share a common purpose are in pari
materia and must be read together as a whole.” People
342 302 M
ICH
A
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338 [Aug
v Harper, 479 Mich 599, 621; 739 NW2d 523 (2007). The
general rule of in pari materia requires courts to
examine a statute in the context of related statutes. Id.
The legislative history of an act may be examined to
determine the underlying purpose of the legislation. In
re Certified Question From the United States Court of
Appeals for the Sixth Circuit, 468 Mich 109, 115 n 5; 659
NW2d 597 (2003). However, legislative history is af-
forded little significance when it does not reflect an
official view of the legislators and may not be utilized to
create an ambiguity where one does not otherwise exist.
Id.; see also People v Gardner, 482 Mich 41, 58; 753
NW2d 78 (2008).
MCL 750.520d provides, in relevant part:
(1) A person is guilty of criminal sexual conduct in the
third degree if the person engages in sexual penetration
with another person and if any of the following circum-
stances exist:
***
(e) That other person is at least 16 years of age but less
than 18 years of age and a student at a public school or
nonpublic school, and either of the following applies:
(i) The actor is a teacher, substitute teacher, or admin-
istrator of that public school, nonpublic school, school
district, or intermediate school district. This subparagraph
does not apply if the other person is emancipated or if both
persons are lawfully married to each other at the time of
the alleged violation.
(ii) The actor is an employee or a contractual service
provider of the public school, nonpublic school, school
district, or intermediate school district in which that other
person is enrolled, or is a volunteer who is not a student in
any public school or nonpublic school, or is an employee of
this state or of a local unit of government of this state or of
the United States assigned to provide any service to that
2013] P
EOPLE V
L
EWIS
343
public school, nonpublic school, school district, or interme-
diate school district, and the actor uses his or her employee,
contractual, or volunteer status to gain access to, or to
establish a relationship with, that other person.
As applied to the facts of this case, the plain language of
MCL 750.520d(1)(e) indicates that a defendant is guilty
of third-degree criminal sexual conduct if he or she
engages in sexual penetration with a public school
student or a nonpublic school student who is at least 16
years of age and less than 18 years of age and the
defendant “is” either a “substitute teacher,” MCL
750.520d(1)(e)(i), or a “contractual service provider,”
MCL 750.520d(1)(e)(ii). Based on the record presented,
there may be evidence that defendant acted as a substi-
tute teacher
4
in the public school district in which the
complainants were students between the ages of 16 and
18 during the previous school year. The testimony
reflected that defendant served as a “long term” sub-
stitute for the students’ British Literature class. How-
ever, the trial court further concluded that the elements
4
We note that a school administrator testified that the school district
did not retain defendant as a substitute teacher. Rather, the district
contracted with a third-party entity to provide substitute teachers. With
regard to defendant’s status as a “substitute teacher,” the school admin-
istrator deferred the issue to the school’s human resources department.
Consequently, the prosecution sought to amend the complaint to reflect
that the alleged offenses were committed by defendant as a substitute
teacher or contractual service provider and also sought to add a witness
to the witness list to testify regarding defendant’s employment status.
Because of the incomplete record, we do not address the issue further, but
leave the prosecution to its proofs and for resolution by the jury. We also
note that defendant objected to the status of the case, by allowing the
prosecutor to amend the complaint before the close of proofs, thereby
preventing a motion for a directed verdict. This issue was not raised in a
motion below, and defendant did not file a cross-appeal addressing this
issue. Questions regarding whether the prosecution could meet its proofs,
whether any prejudice resulted from the amendment, and whether
double jeopardy principles applied were not raised in this appeal, and we
do not address them.
344 302 M
ICH
A
PP
338 [Aug
of the offenses could not be established because the
alleged acts occurred in the summer when defendant
was not acting as the complainants’ substitute teacher
or contractual service provider.
The plain language of MCL 750.520d(1)(e)(i) and (ii)
does not contain any temporal requirement regarding
the timing of the sexual penetration. Bylsma, 493 Mich
at 26; Cole, 491 Mich at 330. Rather, the term “is” refers
to the relationship of the actor. Specifically, the statute
does not state that the sexual penetration must occur
while a defendant is acting as a substitute teacher and
does not define the term “is.” Rather, the statute uses
the phrases, “[t]he actor is a teacher, substitute teacher,
or administrator of that public school,” or “[t]he actor is
an employee or contractual service provider of the
public school....”Wemayconsult a dictionary defini-
tion to determine the meaning of the term “is.” Perkins,
473 Mich at 639; Morey, 461 Mich at 330-331. According
to the dictionary, the term “is” means “be.” Random
House Webster’s College Dictionary (2001), p 701. The
dictionary defines the term “be” to mean “to exist or
live,” “to take place; occur,” “to continue or remain as
before,” and “to occupy a place or position.” Id. at 116.
Consequently, if we incorporate the dictionary defini-
tions into the statute at issue,
5
third-degree criminal
sexual conduct may be committed by an actor who
occupies the place or position of a substitute teacher.
MCL 750.520d(1)(e)(i). This same interpretation ap-
plies to the contractual-service-provider language of
MCL 750.520d(1)(e)(ii). The term “is” does not refer to
the timing of the sexual penetration, and the plain
language of MCL 750.520d(1)(e)(i) contains no refer-
ence to when the events between the student in the
5
That is, we substitute the term “is” with “be” and, in turn, the term
“be” with “to occupy a place or position.”
2013] P
EOPLE V
L
EWIS
345
relevant age period and the actor must have taken
place. Rather, it refers to the occupation of the actor.
6
Our review of the plain language of MCL 750.520d
reveals that the Legislature intended to protect persons
in a certain age group or with certain vulnerability who
encounter an individual in a position of authority or
supervision over those persons. Bylsma, 493 Mich at 26;
Cole, 491 Mich at 330. A review of the statute reveals
that it criminalizes sexual penetration under circum-
stances where an individual of a certain age, infirmity,
and/or vulnerability engages in sexual penetration with
an individual of a particular circumstance or relation-
ship. An individual is guilty of third-degree criminal
sexual conduct if: (1) the victim is at least 13 years of
age and under 16 years of age, MCL 750.520d(1)(a); (2)
force or coercion is used to commit the sexual penetra-
tion, MCL 750.520d(1)(b); (3) the actor is aware of the
victim’s mental or physical limitations, MCL
750.520d(1)(c); (4) the actor is related to the victim
within a specific degree of blood or affinity, MCL
750.520d(1)(d); (5) the victim is a student of at least 16
years of age but less than 18 years of age and the person
occupies a relationship of authority over the victim such
as a teacher, administrator, or contract worker, MCL
750.520d(1)(e); (6) the victim is at least 16 years old but
less than 26 years old and in receipt of special education
services and the actor also occupies a position of author-
6
Because of the limited transcript, we note that it was difficult to
discern the qualifications of defendant as a teacher and the requirements
for being a substitute teacher in light of the school administrator’s
reference to the need to consult with the human resources department.
In response to a juror question, the school administrator testified that a
minimum amount of college credits and a criminal background check was
necessary to become a substitute teacher, although a bachelor’s degree
was preferred. Again, the prosecution is left to its proofs on the issue
whether defendant was a substitute teacher or contractual service
provider.
346 302 M
ICH
A
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338 [Aug
ity or supervision over the victim, MCL 750.520d(1)(f); or
(7) the actor is an employee or supervisor of a child care
organization or foster home in which the at least 16 years
old victim resides, MCL 750.520d(1)(g). The plain lan-
guage stating the various methods of committing third-
degree criminal sexual conduct indicates that the statute
was designed to prevent harm to individuals of a certain
age or a certain vulnerability from actors with knowledge
of the vulnerability or actors that occupy positions of
authority or supervision over the individuals. Again, there
is no temporal requirement in the plain language of the
statute regarding the commission of the sexual penetra-
tion. Consequently, if a sexual penetration by a substitute
teacher occurs before school or after the school bell rings
at the end of the day, or on a weekend, or during the
summer,
7
prosecution pursuant to MCL 750.520d(1)(e)(i)
is not foreclosed. Rather, if the actor’s occupation as a
substitute teacher allowed the actor access to the student
of the relevant age group in order to engage in sexual
penetration, the Legislature intended to punish that con-
duct. MCL 750.520d(1)(e)(i); Bylsma, 493 Mich at 26.
8
Accordingly, the trial court erred by dismissing the
charges
9
against defendant.
7
Although we conclude that the plain language of the statute allows
the prosecution of a substitute teacher for acts that occur during the
summer, we also note that a construction to the contrary, i.e., one that
allows for sexual penetration to occur between relevant-age students and
substitute teachers after hours, on weekends, or during the summer,
leads to absurd results. Tennyson, 487 Mich at 741.
8
Legislative analysis is of limited value because it is not an official view
of the legislators. In re Certified Question, 468 Mich at 115 n 5; Gardner,
482 Mich at 58. However, we note that our holding regarding the
Legislature’s intent is consistent with the analysis of the need for the
legislation protecting students above the age of consent from teachers.
See House Legislative Analysis, SB 1127, December 11, 2002.
9
We note that the trial court, in part to reach its decision, addressed
the term “substitute teacher” in the context of workers’ compensation
2013] P
EOPLE V
L
EWIS
347
Reversed and remanded for reinstatement of the
charges and for proceedings consistent with this opin-
ion. We do not retain jurisdiction.
F
ORT
H
OOD
,P.J., and F
ITZGERALD
and O’C
ONNELL
,JJ.,
concurred.
law. There is no reference in the criminal statute to other statutes
addressing teachers, and therefore, we do not consider them in pari
materia. Harper, 479 Mich at 621.
348 302 M
ICH
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338 [Aug
In re HARPER
Docket No. 309478. Submitted August 14. 2013, at Detroit. Decided
August 29, 2013, at 9:00 a.m.
The Genesee Circuit Court, Family Division granted the Department
of Human Service’s (DHS’s) petition to assert jurisdiction over
respondent Chelsea Bobbit’s minor child in 2010 and respondent’s
name was placed on petitioner’s central registry. The court, John
A. Gadola, J., terminated its jurisdiction over the child in 2011 and
closed the case. At that same hearing, respondent requested that
her name be removed from the DHS central registry because she
wanted to pursue a career in nursing; the lawyer-guardian ad
litem joined in the request. The court granted the motion and DHS
appealed by delayed leave granted.
The Court of Appeals held:
1. MCL 722.627(1) requires the department to maintain a
statewide, electronic central registry, which contains reports and
records related to child protective proceedings. MCL 722.627(5),
(6), and (7) create a statutory scheme that allows a person who is
the subject of a report or record made under the Child Protection
Law, MCL 722.621 et seq., to request the department to remove his
or her name from the central registry. If the department refuses to
remove that individual’s name, MCL 722.627(6) requires the
department to hold a hearing under the administrative procedures
act, MCL 24.201 et seq., to determine whether the report or record
is not relevant or accurate evidence of neglect. Under MCL
722.627(7), the department must expunge the individual’s name
from the central registry if no evidence is found to support a
finding of abuse or neglect. Because the department has exclusive
jurisdiction in maintaining and removing a person’s name from
the central registry, the trial court erred by granting respondent’s
motion to expunge her name; the trial court lacked jurisdiction
because respondent failed to exhaust her administrative remedies
before making the request for expunction in the trial court.
2. MCL 712A.6 grants courts jurisdiction over adults when it is
necessary for the physical, mental, or moral well-being of a
particular juvenile under its jurisdiction. In this case, the trial
court did not have jurisdiction under MCL 712A.6 to order
2013] In re H
ARPER
349
expunction of respondent’s name from the central registry. There
was no evidence that respondent’s goal of becoming a nurse or
removal of her name from the registry was necessary to the child’s
physical, mental, or moral well-being. In addition, MCL 722.627
specifically addresses expunction from the central registry and
that statutory scheme prevails over MCL 712A.6, the more general
statute.
3. Respondent was not excused from exhausting her adminis-
trative remedies before moving for expunction from the central
registry in the trial court. A full, factual record was necessary for
proper review of the facts, the department maintains the registry
and is most knowledgeable regarding when and if someone’s name
should be removed, and the agency may have removed her name if
an administrative hearing had been conducted.
4. Respondent waived her claim that petitioner’s delays in
processing her request for expunction violated her due process
rights because she did not raise the issue in the trial court or offer
any evidence in support.
5. MCL 712A.17d(1)(l) allows a lawyer-guardian ad litem to
request authorization by the court to pursue issues on the child’s
behalf that do not arise specifically from the court appointment.
The lawyer-guardian ad litem could not seek expunction of respon-
dent’s name from the central registry under MCL 712A.17d(1)(i)
because: (1) a lawyer-guardian ad litem’s broad power under MCL
712A.17d(1)(l) to pursue interests on the child’s behalf does not
prevail over MCL 722.627, which creates a specific statutory
scheme granting the department authority to control expunction
from the central registry; and (2) under MCL 722.627(5), respon-
dent, as the person who was the subject of a report or record in the
central registry, was the party who could request expunction, not
the lawyer-guardian ad litem.
Vacated and remanded for further proceedings.
A
DMINISTRATIVE
L
AW —
D
EPARTMENT OF
H
UMAN
S
ERVICES —
J
URISDICTION —
C
ENTRAL
R
EGISTRY —
E
XPUNCTION OF
N
AME
.
The Department of Human Services, which is required to maintain
a statewide, electronic central registry that contains reports and
records related to child protective proceedings, has exclusive
jurisdiction in maintaining and removing a person’s name from
that registry; a person who is the subject of a report or record in
the central registry and seeks expunction of his or her name from
that registry, must exhaust his or her administrative remedies
under MCL 722.627 before seeking review of the department’s
decision in circuit court.
350 302 M
ICH
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349 [Aug
University of Michigan Law School Child Advocacy
Law Clinic (by Vivek S. Sankaran), for Chelsea Bobbitt.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Richard A. Bandstra, Chief Legal
Counsel, and Kristin M. Heyse and Katherine Bennett,
Assistant Attorneys General, for Department of Human
Services.
Before: M
URPHY
, C.J., and M
ARKEY
and R
IORDAN
,JJ.
R
IORDAN
, J. Petitioner, Department of Human Ser-
vices (DHS), appeals by leave granted the trial court
order denying its request to set aside the order remov-
ing respondent mother’s name from petitioner’s central
registry.
1
We vacate the trial court’s order and remand
for proceedings consistent with this opinion.
I. FACTUAL BACKGROUND
In September 2010, the minor child was admitted to
the hospital for failure to thrive because he was under-
weight. Respondent, who was 17 years old at the time of
the incident, was with her 20 year-old boyfriend, who is
the father of the baby; she claimed that they had
received improper instruction on how to feed the child.
Respondent confessed to a Child Protective Services
(CPS) worker that when the child was released from the
hospital, they would have nowhere to live.
DHS filed a petition, requesting the court to autho-
rize the petition and place the child in DHS custody.
The trial court took jurisdiction over the child and, as a
result, respondent’s name was placed on petitioner’s
central registry, which contains information related to
1
The father of the minor is not a party to this appeal.
2013] In re H
ARPER
351
child protective proceedings. Both respondent and her
child were placed in foster care.
Respondent was able to improve her circumstances
during the proceedings and obtained housing for herself
and the child. At a permanency planning hearing on
September 23, 2011, the trial court terminated its
jurisdiction and closed the case. Also at this hearing,
respondent requested that her name be removed from
the central registry because she wanted to pursue a
career in nursing, and the lawyer-guardian ad litem
joined in that request. The trial court granted the
motion, entering an order that petitioner must remove
respondent from the central registry because of the
“circumstances of this case and [respondent’s] chosen
field of employment.”
Thereafter DHS filed a request to set aside the ruling
that respondent’s name must be removed from the central
registry, contending that MCL 722.627 granted DHS, not
the trial court, the authority to add or remove a name
from the registry. After a hearing, the trial court entered
an order denying the request. DHS now appeals.
II. CENTRAL REGISTRY
A. STANDARD OF REVIEW
“We review de novo jurisdictional questions[.]” L&L
Wine & Liquor Corp v Liquor Control Comm, 274 Mich
App 354, 356; 733 NW2d 107 (2007). Likewise, “[w]e
review de novo questions of statutory interpretation.”
Hayford v Hayford, 279 Mich App 324, 325; 760 NW2d
503 (2008).
B. ANALYSIS
“Circuit courts are courts of general jurisdiction[.]”
Papas v Gaming Control Bd, 257 Mich App 647, 657;
352 302 M
ICH
A
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349 [Aug
669 NW2d 326 (2003). However, their jurisdiction is not
absolute. “[I]f the Legislature has expressed an intent
to make an administrative tribunal’s jurisdiction exclu-
sive, then the circuit court cannot exercise jurisdiction
over those same areas.” Citizens for Common Sense in
Gov’t v Attorney General, 243 Mich App 43, 50; 620
NW2d 546 (2000). “This Court has not required the
phrase ‘exclusive jurisdiction’ to appear in a statutory
provision in order to find that jurisdiction has been
vested exclusively in an administrative agency.” Papas,
257 Mich App at 657. Rather, as long as the statutory
language establishes the state agency is endowed with
exclusive jurisdiction, “courts must decline to exercise
jurisdiction until all administrative proceedings are
complete.” Id.
At issue in this case is MCL 722.627, which, in
pertinent part, states:
(1) The department [DHS] shall maintain a statewide,
electronic central registry to carry out the intent of this act.
***
(5) A person who is the subject of a report or record
made under [the Child Protection Law, MCL 722.621, et
seq.,] may request the department to amend an inaccurate
report or record from the central registry and local office
file. A person who is the subject of a report or record made
under this act may request the department to expunge
from the central registry a report or record in which no
relevant and accurate evidence of abuse or neglect is found
to exist. A report or record filed in a local office file is not
subject to expunction except as the department authorizes,
if considered in the best interest of the child.
(6) If the department refuses a request for amendment
or expunction under subsection (5), or fails to act within 30
days after receiving the request, the department shall hold
a hearing to determine by a preponderance of the evidence
2013] In re H
ARPER
353
whether the report or record in whole or in part should be
amended or expunged from the central registry on the
grounds that the report or record is not relevant or
accurate evidence of abuse or neglect. The hearing shall be
held before a hearing officer appointed by the department
and shall be conducted as prescribed by the administrative
procedures act of 1969, 1969 PA 306, MCL 24.201 to
24.328.
(7) If the investigation of a report conducted under this
act fails to disclose evidence of abuse or neglect, the
information identifying the subject of the report shall be
expunged from the central registry. If evidence of abuse or
neglect exists, the department shall maintain the informa-
tion in the central registry until the department receives
reliable information that the perpetrator of the abuse or
neglect is dead.
The “primary goal” of statutory interpretation “is to
discern the intent of the Legislature by first examining
the plain language of the statute.” Driver v Naini, 490
Mich 239, 246-247; 802 NW2d 311 (2011). A statutory
provision must be read in the context of the entire act,
and “every word or phrase of a statute should be
accorded its plain and ordinary meaning.” Krohn v
Home-Owners Ins Co, 490 Mich 145, 156; 802 NW2d
281 (2011). When the language is clear and unambigu-
ous, “no further judicial construction is required or
permitted, and the statute must be enforced as writ-
ten.” Pohutski v City of Allen Park, 465 Mich 675, 683;
641 NW2d 219 (2002) (quotation marks and citation
omitted). Only when the statutory language is ambigu-
ous may a court consider evidence outside the words of
the statute to determine the Legislature’s intent. Sun
Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d
119 (1999). However, “[a]n ambiguity of statutory lan-
guage does not exist merely because a reviewing court
questions whether the Legislature intended the conse-
quences of the language under review. An ambiguity
354 302 M
ICH
A
PP
349 [Aug
can be found only where the language of a statute, as
used in its particular context, has more than one
common and accepted meaning.” Papas, 257 Mich App
at 658.
The plain language of the statute grants exclusive
jurisdiction to DHS to control expunction from the
central registry. MCL 722.627(5), (6), and (7) set forth a
statutory scheme whereby a respondent may seek re-
moval of his or her name from the central registry from
petitioner. MCL 722.627(5) specifically states that a
person subject to a report or record may seek removal of
his or her name in the central registry from the depart-
ment. If the department refuses to remove that indi-
vidual’s name, subsection (6) provides that “the depart-
ment shall hold a hearing” pursuant to the
administrative procedures act, MCL 24.201 et seq., to
determine whether “the report or record is not relevant
or accurate evidence of abuse or neglect.” (Emphasis
added); see Mich Ed Ass’n v Secretary of State (On
Rehearing), 489 Mich 194, 218; 801 NW2d 35 (2011)
(“The use of ‘shall’ in a statute generally indicates a
mandatory and imperative directive.”) (quotation
marks and citation omitted). If no evidence is found to
support a finding of abuse or neglect, DHS must ex-
punge the individual’s name from the central registry.
MCL 722.627(7).
Pursuant to MCL 722.627, the Legislature created a
comprehensive statutory scheme for situations, like
here, where an individual desires removal from the
central registry. As indicated by subsection (1) of the
statute, the Legislature mandated that the department
“shall” be responsible for the maintenance of the reg-
istry, which is language that communicates an intent
that the department be the gatekeeper for the registry.
See Papas, 257 Mich App 647. To read MCL 722.627 as
2013] In re H
ARPER
355
respondent suggests would undermine this clear man-
date. Allowing respondent to evade the department’s
role in this process would subvert the statutory scheme
of MCL 722.627, which in turn would ignore the Legis-
lature’s intent. See Klapp v United Ins Group Agency,
Inc, 468 Mich 459, 468; 663 NW2d 447 (2003) (noting
that courts should “avoid an interpretation that would
render any part of the contract surplusage or nuga-
tory”).
Moreover, it is undisputed that respondent initiated
the procedure for expunction set forth in MCL 722.627,
and had an administrative hearing scheduled. Yet, she
cancelled the hearing, thereby failing to see her admin-
istrative process through to completion. As this Court
has repeatedly recognized, when an administrative
scheme of relief exists an individual must exhaust those
remedies before a circuit court has jurisdiction. See L&
L Wine & Liquor Corp, 274 Mich App at 357; Papas, 257
Mich App at 665; Citizens for Common Sense in Gov’t,
243 Mich App at 54. Further, as both parties conceded
at oral argument, nothing in the statute precludes
respondent from invoking her administrative remedies
after remand.
Respondent, however, contends that the trial court
had authority to enter its order pursuant to MCL
712A.6, which states:
The court has jurisdiction over adults...andmaymake
orders affecting adults as in the opinion of the court are
necessary for the physical, mental, or moral well-being of a
particular juvenile or juveniles under its jurisdiction. How-
ever, those orders shall be incidental to the jurisdiction of
the court over the juvenile or juveniles.
Respondent relies heavily on the Michigan Supreme
Court’s decision in In re Macomber, 436 Mich 386,
390-391; 461 NW2d 671 (1990), wherein the Court held
356 302 M
ICH
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349 [Aug
that “[a] plainer, more straightforward statement of the
authority conferred on the probate court to fashion
necessary orders to protect children who come within
its jurisdiction would be difficult to imagine.”
2
The
Court, however, also noted that this statute does not
grant the trial court plenary power, but has inherent
limits. Id. at 398-399. As the Court explained:
The court is limited in that it can only act after it has
jurisdiction over a child, and it may only act to ensure a
child’s well-being. Any orders aimed at adults must also be
incidental to the court’s jurisdiction over children. In
addition, under § 6, the court may only make orders
affecting adults if “necessary” for the child’s interest. The
word “necessary” is sufficient to convey to probate courts
that they should be conservative in the exercise of their
power over adults. [Id.]
The circuit courts are courts of limited jurisdiction.
They possess only that power authorized by the consti-
tution and statute. This power cannot be expanded by
judicial decree. Thus, while MCL 712A.6 grants the trial
court broad power, there are limits. Respondent posits
that because her presence on the central registry would
keep her from pursuing her job prospects as a nurse, the
trial court was empowered to act under MCL 712A.6.
We decline to accept this quite expansive and strained
reading of MCL 712A.6.
Regardless of respondent’s interaction with other
children, there is no evidence that her placement on the
central registry actually affects her ability to interact
with her own child. There is no evidence that respon-
dent’s subjective goal of becoming a nurse, nor the
removal of her name from the registry, is necessary to
the physical, mental, or moral well-being of her child.
2
While the Court in In re Macomber was interpreting a prior version of
MCL 712A.6, the relevant language remains the same.
2013] In re H
ARPER
357
MCL 712A.6. In fact, removing respondent’s name from
the central registry without following the procedures
and safeguards set forth in MCL 722.627 might actually
endanger the child. To accept respondent’s argument
also would run counter to the Michigan Supreme
Court’s decision in In re Macomber, 436 Mich at 399,
which cautioned trial courts to be conservative with
orders affecting adults under MCL 712A.6.
Furthermore, it is not evident that respondent’s job
prospects as a nurse would be affected by her presence
in the central registry. Nothing in MCL 722.627j re-
quires a potential employer to seek out such informa-
tion or to refuse to hire respondent on the basis of that
information. Respondent also remains free to seek
other employment that would advance her economic
status just as effectively. Lastly, even if we were to agree
that MCL 712A.6 applies, respondent’s argument still
fails. Because MCL 722.627 is the more specific statute,
explicitly dealing with expunction from the central
registry, it prevails over the more general statute, MCL
712A.6. Slater v Ann Arbor Pub Sch Bd of Ed, 250 Mich
App 419, 434-435; 648 NW2d 205 (2002) (recognizing
that when two statutes apply, the more specific one
controls); Bowden v Hutzel Hosp, 252 Mich App 566,
578-579; 652 NW2d 529 (2002) mod on other grounds,
468 Mich 851 (2003).
Respondent next argues that she should be excused
from exhausting her administrative remedies. “It is well
established that where an administrative grievance pro-
cedure is provided, exhaustion of that remedy, except
where excused, is necessary before review by the courts.”
Bonneville v Mich Corrections Org, Serv Employees Int’l
Union, Local 526M, AFL-CIO, 190 Mich App 473, 476;
476 NW2d 411 (1991). As this Court recognized in Citi-
zens for Common Sense in Govt, 243 Mich App at 53:
358 302 M
ICH
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349 [Aug
Exhaustion of administrative remedies serves several
policies: (1) an untimely resort to the courts may result in
delay and disruption of an otherwise cohesive administra-
tive scheme; (2) judicial review is best made upon a full
factual record developed before the agency; (3) resolution
of the issues may require the accumulated technical com-
petence of the agency or may have been entrusted by the
Legislature to the agency’s discretion; and (4) a successful
agency settlement of the dispute may render a judicial
resolution unnecessary. [Quotation marks and citation
omitted.]
Respondent argues that because DHS continuously
delayed the process, there was no cohesive administra-
tive scheme, and she should be excused from exhausting
her administrative remedies. Even if there was an
excessive delay as respondent contends, that is not the
only factor to consider.
In regard to the second purpose articulated above,
removal of an individual from the central registry
involves an intensive factual determination that DHS is
in the best position to make. Judicial review would be
most efficient after a full factual record has been
developed. While respondent contends that the trial
court was fully cognizant of the facts of the case, that is
not the same as being fully cognizant of the factual
issues involved in the management of the central reg-
istry or reasons for removal, which is squarely within
the department’s purview. Contrary to respondent’s
characterization, in its opinion and order, the trial court
displayed limited familiarity with this case. Instead, the
trial court perfunctorily granted respondent’s request
without factual findings and with a notable lack of focus
on the minor child.
Furthermore, respondent ignores two relevant con-
cerns, which fully support exhaustion of administrative
remedies in this case. DHS, as the agency that manages
2013] In re H
ARPER
359
and maintains the central registry, is the most knowl-
edgeable party regarding when and if someone should
be removed from the central registry. Moreover, had
respondent followed through with an administrative
hearing as required by MCL 722.627, the result could
very well have been an order to expunge her name
from the central registry, which would have rendered
judicial resolution unnecessary. Therefore, while it
may have been more convenient for respondent to
bypass the department and go to the trial court,
convenience is inconsistent with the applicable statu-
tory scheme.
Respondent also alleges that the department’s delays
in processing her request violated her due process
rights. However, respondent never raised this issue at
the trial court level nor offered any evidence supporting
this contention.
3
Because there is no evidence properly
before us regarding this issue, we decline to consider it.
See Kent Co Aeronautics Bd v Dep’t of State Police, 239
Mich App 563, 580; 609 NW2d 593 (2000).
Lastly, the lawyer-guardian ad litem asserts that
because she, rather than respondent, moved the trial
court to remove respondent’s name from the central
registry, the trial court’s ruling was justified under
MCL 712A.17d(1)(l), which empowers the lawyer-
guardian ad litem “[t]o request authorization by the
court to pursue issues on the child’s behalf that do not
arise specifically from the court appointment.” The
lawyer-guardian ad litem also contends that because
she made the motion, MCL 722.627 does not apply.
3
While respondent now attempts to expand the record by providing
documents detailing the delay, these documents were not in the lower
court file. “This Court’s review is limited to the record established by the
trial court, and a party may not expand the record on appeal.” Sherman
v Sea Ray Boats, Inc, 251 Mich App 41, 56; 649 NW2d 783 (2002).
360 302 M
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An initial flaw in these assertions is that they are
based on a mischaracterization. While the lawyer-
guardian ad litem states that she made the motion
requesting expunction of respondent’s name from the
registry, the hearing reflects that the lawyer-guardian
ad litem referred the court to respondent’s attorney,
who made the motion. The lawyer-guardian ad litem
then elucidated further and joined in the motion.
Moreover, even assuming that MCL 712A.17d ap-
plies, the lawyer-guardian ad litem’s arguments still
fail. MCL 722.627 specifically grants DHS the authority
to control expunction from the central registry, and
prevails over the more general statute, MCL
712A.17(d)(1)(l), which broadly empowers the lawyer-
guardian ad litem to pursue interests on the child’s
behalf. Slater, 250 Mich App at 434-435 (“[W]here two
statutes or provisions conflict and one is specific to the
subject matter while the other is only generally appli-
cable, the specific statute prevails.”). Further, MCL
722.627(5) specifically states that it is the “person who
is the subject of a report or record made under this act”
who may request removal, which in this case was
respondent.
III. CONCLUSION
MCL 722.627 grants DHS exclusive jurisdiction in
maintaining and removing a person’s name from the
central registry. Because respondent failed to exhaust
her administrative remedies before seeking judicial
intervention, the trial court did not have jurisdiction to
enter an order removing her from the central registry.
As DHS acknowledged at oral argument, respondent
remains free to invoke her administrative remedies
upon remand. We vacate the trial court’s order and
2013] In re H
ARPER
361
remand for proceedings consistent with this opinion.
We do not retain jurisdiction.
M
URPHY
, C.J., and M
ARKEY
, J., concurred with R
IORDAN
,
J.
362 302 M
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RADU v HERNDON & HERNDON INVESTIGATIONS, INC
Docket No. 304485. Submitted August 6, 2013, at Detroit. Decided
August 29, 2013, at 9:05 a.m.
Walter W. and Lindsay K. Radu brought an action in the Oakland
Circuit Court against Herndon & Herndon Investigations, Inc.,
Timothy P. Herndon, and Charles Farley, alleging nine counts
arising from a fire in the engine compartment of plaintiffs’ vehicle
and charges of burning insured property and insurance fraud
brought against Walter Radu. Count I alleged a claim of malicious
prosecution against all defendants. Count II alleged a claim of
injurious falsehood against all defendants. Count III alleged a
claim of tortious interference with economic relationships against
all defendants. Count IV alleged a claim of intentional infliction of
emotional distress against all defendants. Count V alleged claims
of negligence against the Herndon defendants and gross negli-
gence against Farley. Count VI alleged an invasion of privacy claim
against all defendants. Count VII alleged an abuse of process claim
against Farley. Count VIII alleged that Walter Radu was denied
due process because defendants conspired to pursue the criminal
prosecution against him in violation of 42 USC 1983. Count IX
alleged that Walter Radu was denied equal protection of the law
because defendants acted in concert and in an arbitrary and
capricious manner in violation of 42 USC 1983. The Herndon
defendants filed two motions for summary disposition. The first
motion was based on their claim that they were entitled to
statutory immunity. The second motion concerned a release that
was entered in a separate action brought by plaintiffs against the
insurer of their burned vehicle. Defendants alleged in that motion
that plaintiffs’ claims were barred as a consequence of the release
plaintiffs entered into with the insurer, which release included the
insurer’s “representatives,” and alleged that the Herndon defen-
dants had been acting as representatives of the insurer and were
protected by the release. The court, Rae Lee Chabot, J., granted
both motions, concluding that the Herndon defendants were
entitled to statutory immunity and that the claims against the
Herndon defendants were barred by the release. Farley also sought
summary disposition, alleging, in part, that the claims against him
were barred by governmental immunity and that Farley’s conduct
2013] R
ADU V
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ERNDON
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363
was not the proximate cause of plaintiffs’ claimed injuries. The
court granted Farley’s motion for summary disposition. Plaintiffs
appealed.
The Court of Appeals held:
1. The Herndon defendants spoke and acted on behalf of the
insurer of the vehicle by delegated authority with regard to the
investigation of the fire. The trial court properly held that the
Herndon defendants were “representatives” of the insurer within
the meaning of the release language.
2. Timothy Herndon was not a signatory to the release. There-
fore, the portion of the trial court’s order granting summary
disposition premised on the Herndon defendants’ claim that the
case was barred because Herndon had been a signatory to the
release was improperly granted and is vacated.
3. The trial court properly granted the Herndon defendants’
motion for summary disposition premised on statutory immunity
pursuant to MCL 29.4(6) and MCL 500.4509(3). The definition of
malice applicable in defamation actions appears appropriate in the
context of both statutes. Malice exists for purposes of both statutes
when a person supplying information or data to the appropriate
authorities set forth in the statutes does so with knowledge of its
falsity or with reckless disregard of its truth or falsity. The trial
court properly held that plaintiffs failed to present evidence
sufficient to allow a rational finder of fact to conclude that
Timothy Herndon acted with malice with regard to the informa-
tion he provided related to the vehicle fire.
4. There is no merit to plaintiffs’ claims that Farley did not act
in a timely manner when investigating the vehicle fire. Evidence
was not presented that would lead a reasonable fact-finder to
conclude that Farley’s conduct was so reckless as to demonstrate a
substantial lack of concern for whether an injury would result. The
trial court properly dismissed the state law claims against Farley.
5. The trial court properly dismissed the intentional tort
claims against Farley. Plaintiffs presented insufficient evidence for
a reasonable fact-finder to conclude that Farley did not act in good
faith with regard to the investigation of the fire and the prosecu-
tion of Walter Radu.
6. To the extent that plaintiffs attempted to state a claim of
malicious prosecution under 42 USC 1983, the claim was properly
dismissed. There is no evidence to support plaintiffs’ claim that
Farley knowingly provided false information to the prosecutor’s
office in an attempt to persuade the prosecutor to file criminal
charges against Walter Radu. There is also no evidence that Farley
364 302 M
ICH
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363 [Aug
otherwise participated in the prosecutor’s decision to prosecute
Walter Radu. Farley’s motion for summary disposition was prop-
erly granted with regard to plaintiffs’ 42 USC 1983 malicious
prosecution claim.
Affirmed in part and vacated in part.
1. W
ORDS AND
P
HRASES —
R
EPRESENTATIVE —
R
EPRESENT
.
A “representative” is a person or thing that represents another or
others; to “represent” means to stand or act in place of, as an agent
or substitute, and to speak and act for by delegated authority.
2. A
RSON —
I
NSURANCE
F
RAUD —
I
MMUNITY —
M
ALICE
.
The purpose of both MCL 29.4 of the Fire Prevention Code and MCL
500.4509 of the Insurance Code is to foster the communicative and
evaluative processes related to fire prevention and insurance-
fraud prevention; both statutes grant immunity to persons who
have provided information related to investigations of suspected
arson and suspected insurance fraud if the persons acted without
malice; malice exists for purposes of both statutes when a person
supplying information or data to the appropriate authorities does
so with knowledge of its falsity or with reckless disregard of its
truth or falsity.
3. T
ORTS —
G
OVERNMENTAL
I
MMUNITY —
W
ORDS AND
P
HRASES —
G
ROSS
N
EGLI-
GENCE
.
“Gross negligence,” for purposes of the statute providing that a
governmental employee is immune from tort liability for an injury
caused by the employee while in the course of employment if the
employee was acting within the scope of his or her authority, the
governmental agency was engaged in the exercise of a governmen-
tal function, and the employee’s conduct did not amount to gross
negligence that was the proximate cause of the injury, is conduct so
reckless as to demonstrate a substantial lack of concern for
whether an injury results (MCL 691.1407[2], and [7][a]).
4. M
ALICIOUS
P
ROSECUTION —
E
LEMENTS —
F
OURTH
A
MENDMENT —
C
IVIL
R
IGHTS
.
A claim of malicious prosecution under 42 USC 1983 premised on a
violation of the Fourth Amendment consists of four elements: first,
the defendant must have influenced or participated in the decision
to prosecute the plaintiff, second, the plaintiff must show that
there was a lack of probable cause for the criminal prosecution,
third, the plaintiff must show that, as a consequence of a legal
proceeding, he or she suffered a deprivation of liberty apart from
2013] R
ADU V
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ERNDON
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365
the initial seizure, and fourth, the criminal proceeding must have
been resolved in the plaintiff’s favor.
Cummings, McClorey, Davis & Acho, PLC (by Timo-
thy Young and Karen M. Daley), for Walter and Lindsay
Radu.
Hewson & Van Hellemont, PC (by James F. Hewson
and Jerald Van Hellemont), for Herndon & Herndon
Investigations, Inc.
Law Offices of Mark A. Hypnar, PC (by Mark A.
Hypnar), for Timothy Herndon.
Kaufman, Payton & Chapa, PC (by Ralph C. Chapa,
Jr.), and James G. Gross, PLC (by James G. Gross), for
Herndon & Herndon Investigations, Inc, and Timothy
Herndon.
Potter, DeAgostino, O’ Dea & Patterson (by Steven M.
Potter and Rick J. Patterson) for Charles Farley.
Before: S
ERVITTO
,P.J., and C
AVANAGH
and W
ILDER
,JJ.
P
ER
C
URIAM
. Plaintiffs, Walter and Lindsay Radu,
appeal as of right an order granting two motions for
summary disposition in favor of defendants Herndon &
Herndon Investigations, Inc (Herndon Investigations),
and Timothy Herndon (Herndon), pursuant to MCR
2.116(C)(7), on the basis of release and statutory immu-
nity. We affirm. Plaintiffs also appeal as of right an
order granting a motion for summary disposition in
favor of defendant Charles Farley (Farley) pursuant to
MCR 2.116(C)(7) (governmental immunity) and
(C)(10). We affirm in part and vacate in part.
On December 17, 2005, there was a fire in the engine
compartment of plaintiffs’ 2004 Jeep Grand Cherokee
that plaintiff Walter Radu (Walter) had driven to a local
366 302 M
ICH
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363 [Aug
park. Walter, a firefighter for the Dearborn Fire Depart-
ment, claimed that he parked the vehicle, got out of it
and, as he was walking away, heard a noise. When he
looked back, he saw smoke coming from the passenger-
side front wheel well. He then returned to the vehicle
and attempted to start it so that he could drive it to the
fire department located close to the park. When smoke
started coming through the interior heating vents, he
got out of the vehicle and called 911. There were no
witnesses in the park at the time who have been
identified. A deputy from the Oakland County Sheriff’s
Office and firefighters from the Commerce Township
Fire Department responded to the vehicle fire. After the
fire was extinguished, the vehicle was towed to a local
facility and was placed in an outdoor storage lot. The
fire was not considered suspicious in nature by the
firefighter in charge or the deputy.
On the same day, plaintiffs filed an insurance claim
with Auto Club Insurance Association (ACIA). On De-
cember 30, 2005, ACIA hired defendant Herndon Inves-
tigations to investigate the claim. On January 2, 2006,
defendant Herndon examined the vehicle to determine
the origin and cause of the fire. During his inspection,
Herndon noticed that the main fuel line was severed at
the rear of the engine compartment on the driver’s side,
as well as at the fuel rail connection. After Herndon
completed his entire investigation, he concluded that
the fire was incendiary in nature. The Oakland County
Sheriff’s Office’s fire investigation unit was contacted.
On January 5, 2006, defendant Charles Farley, a certi-
fied fire investigator for the Oakland County Sheriff’s
Office (OCSO), requested that ACIA provide him with
insurance information related to plaintiffs’ vehicle and
ACIA’s fire investigation. On January 6, 2006, Farley
conducted an examination of the vehicle. He noted that
2013] R
ADU V
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ERNDON
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NVESTIGATIONS
367
the fuel line located at the rear of the engine block, on the
driver’s side, was cut and that the metal joint from the
fuel rail to the fuel line was also cut. Farley also noticed
that about 18 inches of the fuel line was missing. After
Farley completed his initial investigation, he concluded
that the fire was incendiary in nature. However, Farley
continued to investigate the matter, supplementing his
initial report several times through October 2, 2007, but
his opinion did not change. Therefore, he submitted to the
prosecutor’s office a request for a warrant review and
attached his reports, witness statements, and other infor-
mation. The prosecutor’s office decided to prosecute, and
Walter was charged with burning insured property in
violation of former MCL 750.75, see MCL 750.76, effective
April 3, 2013, and insurance fraud in violation of MCL
500.4511(1). Although he was bound over as charged after
a finding of probable cause, the prosecutor eventually filed
a petition for a nolle prosequi, which was granted.
Also in 2007, plaintiffs filed a complaint against
ACIA, alleging breach of contract with regard to ACIA’s
denial of their insurance claim. In 2008, that matter
was resolved and the parties entered into a release,
settlement agreement, and nondisclosure agreement.
The settlement agreement released ACIA, as well as its
employees and representatives, from any related
“claims, demands, damages, actions, causes of action or
suits of any kind or nature whatsoever....”Thenon-
disclosure agreement was executed by all persons and
entities involved in the litigation, including Herndon
and all the attorneys involved.
In 2009, plaintiffs filed the complaint at issue in this
matter, arising from defendants’ investigation of the
vehicle fire. In count I, plaintiffs alleged a claim of
malicious prosecution against all defendants, asserting
that they initiated the criminal prosecution against
368 302 M
ICH
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363 [Aug
Walter after their cursory fire investigation led to their
unsupported accusations of arson. In count II, plaintiffs
alleged a claim of injurious falsehood against all defen-
dants, asserting that their cursory and incomplete fire
investigation resulted in false, published, and injurious
accusations that led to significant damages. In count
III, plaintiffs alleged a claim of tortious interference
with economic relationships against all defendants,
asserting that their false, published accusations caused
the denial of plaintiffs’ insurance claim, the denial of
future insurance coverage, and detrimental employ-
ment and business repercussions. In count IV, plaintiffs
alleged a claim of intentional infliction of emotional
distress against all defendants, asserting that defen-
dants’ conduct and accusation of arson were so outra-
geous in character and so extreme in degree as to go
beyond all possible bounds of decency. In count V,
plaintiffs alleged claims of negligence against the Hern-
don defendants and gross negligence against Farley. In
count VI, plaintiffs alleged an invasion of privacy claim
against all defendants, asserting that defendants im-
properly disclosed their investigations to Walter’s em-
ployer and discussed potential criminal charges, thus
intruding on plaintiffs’ right to privacy. In count VII,
plaintiffs alleged an abuse of process claim against
Farley, asserting that he abused the criminal investiga-
tion process for his own purpose and inappropriately
appeared at Walter’s place of business unannounced to
discuss potential criminal charges with Walter’s super-
visor. In count VIII, plaintiffs alleged that Walter was
denied due process because defendants conspired to
pursue the criminal prosecution against him in viola-
tion of 42 USC 1983. In count IX, plaintiffs alleged that
Walter was denied equal protection under the law
because defendants acted in concert and in an arbitrary
and capricious manner in violation of 42 USC 1983.
2013] R
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ERNDON
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369
Eventually, the Herndon defendants filed two motions
for summary disposition. In the first motion, brought
pursuant to MCR 2.116(C)(7), the Herndon defendants
argued that they were entitled to statutory immunity.
They argued that plaintiffs’ claims arose from the fact
that they provided information regarding their fire inves-
tigation to Farley and, eventually, criminal charges were
brought against Walter. However, they were immune from
civil liability pursuant to the Fire Prevention Code, MCL
29.4(6), because the fire investigation report was provided
to Farley, without fraud or malice, and upon written
request during his investigation of suspected arson. The
Herndon defendants also argued that they were entitled
to immunity pursuant to the Insurance Code, MCL
500.4509(2) and (3), because their fire investigation infor-
mation was provided to Farley, without malice and upon
written request, during Farley’s investigation of suspected
insurance fraud. Further, plaintiffs’ allegations of malice
were without merit as a matter of law because Herndon
did not have knowledge that his statements were false and
he did not act with reckless disregard with regard to the
veracity of his statements.
Plaintiffs responded to the Herndon defendants’ mo-
tion, arguing that they were not entitled to statutory
immunity. Plaintiffs claimed that Herndon acted with
malice because he provided false information that he
knew to be false or, at least, acted with reckless disregard
as to whether his information was false. In particular,
plaintiffs argued that Herndon “recklessly disregarded
the fact that the fuel line was separated, dislodged or
otherwise removed after the fire.” Moreover, the statutes
cited by the Herndon defendants do not grant immunity
to the author of the information that was ultimately
furnished to the authorities by the insurance company,
ACIA. Therefore, plaintiffs argued, the Herndon defen-
dants were not entitled to statutory immunity.
370 302 M
ICH
A
PP
363 [Aug
In their second motion for summary disposition,
brought pursuant to MCR 2.116(C)(7), the Herndon
defendants argued that plaintiffs’ claims were barred as
a consequence of the release plaintiffs entered into with
ACIA. In particular, the Herndon defendants argued
that the release included ACIA’s “representatives” and,
when they conducted the fire investigation at issue in
this matter, the Herndon defendants were acting as
“representatives” of ACIA. Plaintiffs opposed this mo-
tion, arguing that the Herndon defendants were not
entitled to benefit from the release because they were
not “representatives” of ACIA; rather, they were inde-
pendent contractors specifically hired only to do an
investigation for ACIA. And, plaintiffs argued, Herndon
was merely a signatory of the nondisclosure agreement,
which was clearly separate and distinct from the release
because the Herndon defendants were not parties to
that lawsuit.
Following oral arguments on the Herndon defen-
dants’ motions for summary disposition, the trial court
granted both motions. First, the trial court concluded
that there was no evidence from which to infer that
Herndon made the statements in his fire investigation
report with malice or with actual knowledge of any
falsehood. Further, the trial court held that the Hern-
don defendants were “otherwise cooperating with an
investigation” as set forth in MCL 500.4509(3) and they
“furnishe[d] information on behalf of an insurance
company” as set forth in MCL 29.4(6). Accordingly, the
Herndon defendants were entitled to summary disposi-
tion on the basis of statutory immunity. Second, the
trial court concluded that plaintiffs’ claims against the
Herndon defendants were barred by the terms of the
release; thus, they were also entitled to summary dis-
position on that ground as well. Plaintiffs’ motion for
reconsideration was denied.
2013] R
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ERNDON
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371
Defendant Farley also filed a motion for summary
disposition. Farley averred that plaintiffs’ claims of
intentional torts, gross negligence, and constitutional
violations arose from Farley’s submission of his fire
investigation reports to the prosecutor in his request for
a warrant review regarding possible criminal charges
against Walter. Plaintiffs subsequently hired experts
who reached contrary conclusions regarding the cause
of the fire; however, such a difference of opinion did not
give rise to a cause of action. Further, although plain-
tiffs challenged the thoroughness of Farley’s investiga-
tion, the investigation was sufficient to prompt the
prosecutor’s office to issue a warrant and the court
determined that probable cause existed to bind Walter
over on the charges. More specifically, Farley argued,
plaintiffs’ intentional tort claims, including their mali-
cious prosecution, injurious falsehood, tortious interfer-
ence with economic relationships, intentional infliction
of emotional distress, invasion of privacy, abuse of
process, and constitutional violation claims, were
barred by governmental immunity. Further, plaintiffs’
gross negligence claim was the same as their malicious
prosecution claim; thus, it was also barred. Moreover,
the gross negligence claim must fail because Farley’s
conduct was not the proximate cause of plaintiffs’
claimed injuries; rather, the prosecutor’s decision to
bring the criminal charges against Walter was the
proximate cause of the alleged injuries. Accordingly,
Farley argued, he was entitled to summary disposition
of plaintiffs’ claims.
Plaintiffs opposed Farley’s motion for summary dis-
position, arguing that Farley was not entitled to gov-
ernmental immunity regarding their intentional tort
and gross negligence claims because he acted with
malice, without good faith, and in a manner so reckless
as to demonstrate a substantial lack of concern for
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whether an injury would result with regard to his
investigation of this vehicle fire. Further, plaintiffs
argued, Farley was not entitled to summary dismissal of
their malicious prosecution claim because he influenced
or participated in the decision to prosecute Walter and
made false statements that established probable cause
with regard to the criminal charges against Walter.
Moreover, Farley’s appalling conduct during the inves-
tigation of the vehicle fire met the “shocks-the-
conscience” threshold; thus, Farley was not entitled to
summary dismissal of plaintiffs’ equal protection claim.
Accordingly, plaintiffs argued, Farley’s motion for sum-
mary disposition should be denied in its entirety.
Following oral arguments, the trial court granted
Farley’s motion for summary disposition. The trial
court held that Farley was entitled to governmental
immunity. Further, the court concluded that Farley was
entitled to dismissal of plaintiffs’ gross negligence claim
because the evidence did not give rise to a reasonable
inference that Farley’s conduct was so reckless as to
demonstrate a substantial lack of concern for whether
an injury would result. And the trial court concluded
that Farley was entitled to summary dismissal of plain-
tiffs’ constitutional claims because his actions did not
shock the conscience and there was no evidence that he
was motivated by a discriminatory purpose. This appeal
followed.
Plaintiffs first argue that the trial court erred by
granting the Herndon defendants’ motion for summary
disposition on the basis of the release executed in
plaintiffs’ case against ACIA. We disagree.
A trial court’s decision on a motion for summary
disposition is reviewed de novo on appeal. Spiek v Dep’t
of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998).
When the plaintiffs’ claims are barred because of a
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release, summary disposition is proper under MCR
2.116(C)(7). Wyrembelski v St Clair Shores, 218 Mich
App 125, 127; 553 NW2d 651 (1996). The interpretation
of a release presents a question of law that this Court
reviews de novo. Cole v Ladbroke Racing Mich, Inc, 241
Mich App 1, 13; 614 NW2d 169 (2000).
Contract law applies to disputes involving the terms
of a release. Shay v Aldrich, 487 Mich 648, 660; 790
NW2d 629 (2010). “The cardinal rule in the interpreta-
tion of contracts is to ascertain the intention of the
parties.” Id. (quotation marks and citation omitted).
“The scope of a release is governed by the intent of the
parties as it is expressed in the release.” Adell v
Sommers, Schwartz, Silver & Schwartz, PC, 170 Mich
App 196, 201; 428 NW2d 26 (1988). If the language is
unambiguous, it must be construed, as a whole, accord-
ing to its plain and ordinary meaning. Holmes v
Holmes, 281 Mich App 575, 593; 760 NW2d 300 (2008);
Cole, 241 Mich App at 13.
Plaintiffs’ previously filed lawsuit against ACIA was
dismissed after the parties entered into a “GENERAL
RELEASE, SETTLEMENT AGREEMENT, AND
NON-DISCLOSURE AGREEMENT.” The document
provided, in part, that
the parties to this Agreement and to the above-referred
litigation wish to avoid trial and the resulting uncertainty
of a verdict, and have agreed that the pending litigation
shall be dismissed, with prejudice and without costs to any
party, upon such terms as are reflected in this General
Release and Settlement Agreement[.]
It further stated that plaintiffs
do forever release and discharge the Auto Club Insurance
Association, its employees and representatives... from
any and all claims, demands, damages, actions, causes of
action or suits of any kind or nature whatsoever....
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The document also provided as follows:
IN FURTHER CONSIDERATION for the dismissal of
this cause of action...Plaintiffs Walter Winston Radu and
Lindsay K. Radu; Timothy Young, Attorney for Walter and
Lindsay Radu in the civil litigation; Defendant Auto Club
Insurance Association and its attorneys, including Mary
Look; and Kevin S. Carden, Attorney for the Auto Club
Insurance Association, and their agents, employees and
representatives; and anyone involved in this litigation
including Herndon and Associates, Walter Herndon, Timo-
thy Herndon, Daniel Terski, and any and all of its employ-
ees and representatives; and Mark Hypnar, attorney for
Timothy Herndon; agree that they shall not disclose the
terms or conditions of the dismissal of this litigation to
anyone other than the attorneys to this litigation, the
Court, and the parties to this litigation as necessary, except
as required by law or by Court Order.
In their motion for summary disposition, the Hern-
don defendants argued that they were “representa-
tives” of ACIA within the contemplation of the release.
It appears that the trial court agreed with the Herndon
defendants’ argument, as do we. The release does not
define the term “representatives”; thus, “a dictionary
may be used to determine the ordinary meaning of a
word or a phrase.” Greenville Lafayette, LLC v Elgin
State Bank, 296 Mich App 284, 292 n 4; 818 NW2d 460
(2012). According to Random House Webster’s College
Dictionary (2d ed, 1997), a “representative” is “a person
or thing that represents another or others.” And the
word “represent” means “to stand or act in place of, as
an agent or substitute” and “to speak and act for by
delegated authority.” Id.
In this case, it is undisputed that the Herndon
defendants were hired by ACIA to investigate plaintiffs’
insurance claim. That is, with regard to the investiga-
tion of the vehicle fire, the Herndon defendants repre-
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sented ACIA’s interests. In that capacity, Herndon went
to the storage lot where plaintiffs’ vehicle was located
and conducted his investigation on behalf of ACIA.
Herndon also contacted the OCSO’s fire investigation
unit to report the vehicle fire on behalf of ACIA and
then consulted with Farley during his investigation of
the vehicle fire. Thus, we conclude that the Herndon
defendants spoke and acted on behalf of ACIA by
delegated authority with regard to the investigation of
the vehicle fire. Accordingly, the Herndon defendants
were “representatives” of ACIA within the plain mean-
ing of the release language.
The Herndon defendants also briefly argued in the
trial court, as they do on appeal, that Herndon was a
signatory to the release. We disagree. Neither Herndon
defendant was a party to the underlying breach of
contract litigation between plaintiffs and ACIA; thus,
they had no legal claim to “release” or settle with
plaintiffs in that matter. Herndon was a signatory on
the nondisclosure agreement only, not the release or
settlement agreement, because Herndon Investigations
had been hired by ACIA to investigate plaintiffs’ insur-
ance claim. Similarly, all the attorneys involved in that
lawsuit were signatories to the nondisclosure agree-
ment. Accordingly, the Herndon defendants’ motion for
summary disposition premised on their claim that
plaintiffs’ case was barred because Herndon was a
signatory to the release entered into between plaintiffs
and ACIA was improperly granted by the trial court and
that portion of the order is vacated.
Next, plaintiffs argue that the trial court erroneously
granted the Herndon defendants’ motion for summary
disposition premised on statutory immunity pursuant
to MCL 29.4(6) and MCL 500.4509(3). We disagree.
376 302 M
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A trial court’s decision on a motion for summary
disposition is reviewed de novo on appeal. Spiek, 456
Mich at 337. A motion for summary disposition is
properly granted under MCR 2.116(C)(7) if the action is
barred by immunity, including statutory immunity. See
Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217
(2008). Questions of statutory interpretation are re-
viewed de novo. Id. at 467. Statutes are construed so as
to give effect to the intent of the Legislature, as ex-
pressed by the language of the statute. Id. “While words
are construed according to their plain and ordinary
meaning, words that have acquired a peculiar and
appropriate meaning in the law are construed according
to that peculiar and appropriate meaning.” Feyz v Mercy
Mem Hosp, 475 Mich 663, 673; 719 NW2d 1 (2006).
MCL 29.4(6) provides:
In the absence of fraud or malice, an insurance company
or a person who furnishes information on behalf of an
insurance company is not liable for damages in a civil
action or subject to criminal prosecution for an oral or
written statement made or other action taken that is
necessary to supply the information required under this
section.
MCL 500.4509(3) provides:
In the absence of malice, an insurer, or any officer,
employee, or agent of an insurer, or any person who
cooperates with, furnishes evidence, or provides informa-
tion regarding suspected insurance fraud to an authorized
agency...isnotsubject to civil liability for libel, slander,
or any other tort, and a civil cause of action of any nature
does not exist against the person, for filing a report,
providing information, or otherwise cooperating with an
investigation or examination of any of these entities, unless
that person knows that the evidence, information, testi-
mony, or matter contains false information pertaining to
any material fact or thing.
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In this case, plaintiffs argue that the Herndon defen-
dants were not entitled to statutory immunity because
questions of fact existed regarding (1) whether Herndon
acted with malice when he reported that Walter inten-
tionally caused the fire and (2) whether Herndon know-
ingly provided false information to ACIA regarding
plaintiffs’ vehicle fire. Accordingly, plaintiffs argue that
questions of fact existed with regard to whether the
“malice” exception to immunity set forth in both stat-
utes applied under the circumstances in this case.
The statutes at issue in this case do not define the
term “malice.” However, in Feyz, 475 Mich at 683-
684, our Supreme Court considered a similar “malice
exception” within the medical peer review immunity
statute, MCL 331.531. The Feyz Court noted that the
purpose of the peer review immunity statute is “to
foster the free exchange of information in investiga-
tions of hospital practices and practitioners, and
thereby reduce patient mortality and improve patient
care within hospitals.” Feyz, 475 Mich at 666. Consis-
tent with that purpose, the Court also noted that the
Legislature clearly intended “to protect peer review
participants from liability for participation in this
communicative and evaluative process” if they par-
ticipated without “malice.” Id. And the Court held
that “ ‘[m]alice’ is clearly a word that has acquired a
peculiar meaning in the law.” Id. at 683. In consider-
ation of this “communicative context,” the Feyz Court
adopted the defamation definition of the term “actual
malice,” concluding that “it is the one definition that
specifically concerns and promotes honest communi-
cation.” Id. at 685-686; see also id. at 684 n 62. Thus,
the Court held that “malice can be established when
a ‘person supplying information or data...does so
with knowledge of its falsity or with reckless disre-
378 302 M
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gard of its truth or falsity.’ ” Id. at 667, quoting
Veldhuis v Allan, 164 Mich App 131, 136; 416 NW2d
347 (1987).
The purposes of both MCL 29.4 of the Fire Preven-
tion Code and MCL 500.4509 of the Insurance Code
similarly foster the communicative and evaluative pro-
cesses related to fire prevention and insurance-fraud
prevention. And, both statutory provisions clearly grant
the protection of immunity to persons who have pro-
vided information related to investigations of suspected
arson and suspected insurance fraud if they acted
without malice. In light of the similarity of the statutes
at issue in this case and the medical peer review
immunity statute, we conclude that the definition of
malice applicable in defamation actions appears appro-
priate in the context of both MCL 29.4(6) and MCL
500.4509(3). Accordingly, with regard to these statutes,
malice exists when a person supplying information or
data to the appropriate authorities, as set forth in the
statutes, does so with knowledge of its falsity or with
reckless disregard of its truth or falsity. See Feyz, 475
Mich at 690.
Plaintiffs argue that a question of fact existed regard-
ing whether the “malice exception” to immunity set
forth in both statutes applied because (1) the purport-
edly cut end of the fuel line was shiny, was not discol-
ored, and did not have fire debris on the outside surface
as it would have had if it had been exposed to fire and
(2) there were unburned combustible cotton fibers on
the edge of that cut fuel line that would have been
burned in the fire. Plaintiffs argue, therefore, that
Walter could not have separated the fuel line before the
fire and that Herndon ignored this evidence and pro-
vided false information or, at least, acted with reckless
disregard of it when he communicated his opinion that
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Walter intentionally caused this vehicle fire. We cannot
agree with plaintiffs that the evidence in this case
created a question of fact regarding whether Herndon
acted with malice under MCL 29.4(6) and MCL
500.4509(3) when he provided information related to
the vehicle fire.
In Ireland v Edwards, 230 Mich App 607, 622; 584
NW2d 632 (1998), this Court held:
Actual malice is defined as knowledge that the pub-
lished statement was false or as reckless disregard as to
whether the statement was false or not. Reckless disregard
for the truth is not established merely by showing that the
statements were made with preconceived objectives or
insufficient investigation. Furthermore, ill will, spite or
even hatred, standing alone, do not amount to actual
malice. “Reckless disregard” is not measured by whether a
reasonably prudent man would have published or would
have investigated before publishing, but by whether the
publisher in fact entertained serious doubts concerning the
truth of the statements published. [Quoting Grebner v
Runyon, 132 Mich App 327, 332-333; 347 NW2d 741 (1984)
(quotation marks and citations omitted).]
Further, generally, a failure to investigate is not sufficient
to establish reckless disregard, although the “purposeful
avoidance of the truth” may be sufficient. Smith v Anony-
mous Joint Enterprise, 487 Mich 102, 117; 793 NW2d 533
(2010), quoting Harte-Hanks Communications, Inc v
Connaughton, 491 US 657, 692; 109 S Ct 2678; 105 L Ed
2d 562 (1989) (quotation marks omitted).
In this case, Herndon was hired to render an opinion
about the origin and cause of the vehicle fire. After his
investigation, and in light of his experience with such
investigations, he concluded that the fuel line had been
intentionally cut before the fire, which caused the fire
when Walter attempted to start the vehicle. Plaintiffs
disagree with his conclusions and submitted affidavits
380 302 M
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from experts who opined that there were other potential
explanations for the severed fuel line and other potential,
accidental causes of the vehicle fire. However, the fact that
a mere difference of opinion exists regarding plausible
scenarios does not lead to the conclusion that Herndon
knowingly provided false information to ACIA with regard
to his opinion. Further, reckless disregard for the truth is
not established merely by showing that Herndon may
have conducted an insufficient investigation. Neverthe-
less, a metallurgical engineer also investigated this matter
by conducting an analysis of the subject components of the
fuel system and determined that “the fuel tube was
subjected to repeated bending until breakage occurred.”
The metallurgical engineer also determined that this
“breakage occurred prior to the fire, as the fracture
surface and the tube OD [outer diameter] contain the
same inorganic debris which was created and deposited
during the fire.” In his deposition, the metallurgical
engineer testified that the combustible cotton fibers found
on the edge of the cut fuel line were deposited there after
the fire, which was consistent with Herndon’s deposition
testimony that he wore jersey-style cotton gloves during
his inspection of the vehicle. In any case, we agree with
the trial court that plaintiffs have failed to present evi-
dence sufficient to allow a rational finder of fact to
conclude that Herndon acted with malice with regard to
the information he provided related to the vehicle fire.
Accordingly, we affirm the trial court’s decision to grant
the Herndon defendants’ motion for summary disposition
on the ground that plaintiffs’ claims were barred by
immunity as set forth in MCL 29.4(6) and MCL
500.4509(3).
Plaintiffs next argue that the trial court erroneously
granted Farley’s motion for summary disposition after
concluding that governmental immunity barred plain-
tiffs’ state law claims because a reasonable juror could
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conclude that Farley’s actions were grossly negligent.
After review de novo of the trial court’s decision, we
disagree. See Spiek, 456 Mich at 337.
If governmental immunity bars a plaintiff’s claims,
then summary disposition under MCR 2.116(C)(7) is
proper. Odom, 482 Mich at 466. “If no facts are in
dispute, or if reasonable minds could not differ regard-
ing the legal effect of the facts, the question whether the
claim is barred by governmental immunity is an issue of
law.” Pierce v City of Lansing, 265 Mich App 174, 177;
694 NW2d 65 (2005).
MCL 691.1407(2) generally provides that a govern-
mental agency’s employee is immune from tort liability
for an injury caused by the employee while in the course
of employment if (a) the employee was acting within the
scope of his or her authority, (b) the governmental
agency was engaged in the exercise of a governmental
function, and (c) the employee’s conduct did not
amount to gross negligence that was the proximate
cause of the injury. In this case, plaintiffs argue that
Farley was not entitled to the protection of immunity
because his conduct amounted to gross negligence.
Plaintiffs argue as follows:
Based solely upon information from Timothy Herndon
that the fire was suspicious, Farley investigated [plaintiffs’]
vehicle fire on January 6, 2006 — 21 days after the fire and
21 days after the vehicle sat in an unsecured lot. After
inspecting the vehicle and speaking with Defendant Hern-
don, Farley concluded that [Walter] deliberately cut the
fuel line before the fire. However, as the evidence demon-
strates, there is no way the fire could have occurred as
concluded by Defendant Farley.
MCL 691.1407(7)(a) defines “gross negligence” as
“conduct so reckless as to demonstrate a substantial
lack of concern for whether an injury results.” There-
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fore, a plaintiff cannot survive a motion for summary
disposition premised on immunity granted by MCL
691.1407(2) merely by presenting evidence that the
employee’s conduct amounted to ordinary negligence.
Maiden v Rozwood, 461 Mich 109, 122-123; 597 NW2d
817 (1999). Rather, the plaintiff must present evidence
that the “contested conduct was substantially more
than negligent.” Costa v Community Emergency Med
Servs, Inc, 475 Mich 403, 411; 716 NW2d 236 (2006).
And if no reasonable jury could find that the employee’s
conduct amounted to gross negligence, the plaintiff’s
claim must be dismissed. Jackson v Saginaw Co, 458
Mich 141, 146; 580 NW2d 870 (1998).
Here, to the extent that plaintiffs are arguing that
Farley’s investigation of the vehicle fire was not timely, we
note that it was not until after Herndon had been hired by
ACIA to investigate this vehicle fire that Farley became
aware of the suspicious nature of the fire. Herndon did not
examine the vehicle until January 2, 2006, at which time
he determined that the fuel line was severed and Farley
was subsequently notified of the suspicious nature of the
vehicle fire. On January 5, 2006, Farley requested that
ACIA provide him with information related to the vehicle
and the fire. The next day, Farley inspected the vehicle.
Thus, under the circumstances, plaintiffs’ claims that
Farley did not act in a timely manner are without merit.
Further, the storage lot to which plaintiffs’ vehicle was
towed after the fire was a fenced lot and plaintiffs have
provided no evidence from which to conclude that the
vehicle had been tampered with before Farley conducted
his investigation. To the contrary, Farley interviewed
employees of the lot and was assured that the vehicle had
not been tampered with while in the lot. Additionally,
Farley testified that the front end of the vehicle was
pushed up against a fence in the storage lot and that the
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only means of access to the vehicle was through the rear
hatch.
To the extent that plaintiffs challenge Farley’s con-
clusion that Walter intentionally cut the fuel line and
caused the fire, there is corroborating evidence that
supports Farley’s conclusion, as discussed earlier in this
opinion. And, Farley testified that he arrived at his
conclusion after considering all the circumstances as
well as the physical evidence. He testified that his
concerns regarding the fire included: “The fact that the
fire happened, how it happened, that the vehicle owner
was the only person around the vehicle at the time,
[and] that the vehicle owner, when the vehicle was
supposedly smoking, tried to start the car.” That is, “[i]f
the vehicle was possibly on fire, the last thing I would
do as a rationale individual would [be to] jump into a
vehicle that’s on fire.” It was clear that Walter had
driven to the park without incident and, thus, the fuel
line and fuel rail could not have been severed until after
he arrived at the park. There were no witnesses at the
park on this December day who have been identified.
Farley also learned that the vehicle was leased and was
well over the allotted mileage; thus, plaintiffs faced a
“hefty bill” at the end of the lease.
Plaintiffs further argue that Walter did not smell of
fuel at the scene of the fire and was not found to have
any tools with which to cut the fuel line, which had a
“shiny edge,” inconsistent with the rest of the fuel line.
However, the metallurgical engineer testified that the
fuel line was not cut with a tool, but had been subjected
to repeated bending until it broke. Although tool marks
may have been located on the fuel line, a tool could have
been used to facilitate the bending motions that even-
tually led to breakage. Further, this expert was made
aware of the “shiny edge of the fuel line” and testified
384 302 M
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that it did not change his conclusion that the stainless
steel fuel line was severed before the fire. Farley dis-
agreed that the cut edge of the fuel line was “shiny,” and
testified that the cut edge could have been a bit differ-
ent in color compared to the outer surface because it
had not been exposed to the elements for as long as the
outer surface of the line. Herndon also testified that
when he has burned vehicles after cutting a fuel line, he
has noticed “a clean edge on the end after a fire, the way
the gasoline burns has left clean or shinier ends or
different color as to the rest of the fuel line.” Moreover,
Herndon testified that gasoline would not necessarily
have poured out when the fuel line was severed because,
when the engine is off, the fuel pump is not running. It
is the fuel vapors that ignite when there is an attempt
to start a vehicle. Although plaintiffs have presented
affidavits from their experts that offer other possible
explanations for the cut fuel line and cause of the fire,
such evidence could not lead a reasonable fact-finder to
conclude that Farley’s conduct was “so reckless as to
demonstrate a substantial lack of concern for whether
an injury results.” Accordingly, the trial court properly
dismissed plaintiffs’ state law claims.
Plaintiffs next argue that the trial court erroneously
dismissed their intentional tort claims against Farley
because the evidence established that Farley did not act
in good faith. We disagree.
As discussed by our Supreme Court in Odom,a
governmental employee is immune from liability for
intentional torts if the act was taken during the course
of employment, the employee was acting within the
scope of his or her authority, the employee was acting in
good faith, and the act was discretionary not ministerial
in nature. Odom, 482 Mich at 473-476. Here, plaintiffs
argue that Farley did not act in good faith; thus, he was
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not entitled to governmental immunity with regard to
plaintiffs’ intentional tort claims. The Odom Court held
that a governmental employee does not act in “good
faith” if the employee acts “maliciously or with a
wanton or reckless disregard of the rights of another.”
Id. at 474 (citation and emphasis omitted). And “ ‘will-
ful and wanton misconduct is made out only if the
conduct alleged shows an intent to harm or, if not that,
such indifference to whether harm will result as to be
the equivalent of a willingness that it does.’ ” Id. at 475,
quoting Burnett v City of Adrian, 414 Mich 448, 455;
326 NW2d 810 (1982).
Plaintiffs argue that “the evidence establishes com-
plete and utter bad faith by Defendant Farley in his
continued investigation and prosecution of Mr. Radu. A
jury could reasonably conclude that the evidence pre-
sented demonstrates that Farley deliberately made false
and misleading statements and deliberately omitted key
information from his warrant application in order to
secure a warrant and manufacture probable cause.”
More specifically, plaintiffs’ arguments focus on Far-
ley’s alleged failure to properly preserve the vehicle and
ensure its chain of custody, his misstatements or “lies”
related to the timing of his investigation, his deficient
investigation regarding the vehicle fire, his decision to
have a private laboratory conduct tests on the fuel
components, and his participation in the prosecution of
Walter on criminal charges, including advising the
prosecutor that the fuel line was deliberately cut and
ignoring the responding fire department’s conclusion
that the fire was accidental.
We have considered plaintiffs’ numerous allegations
and conclude that plaintiffs’ evidence is insufficient for a
reasonable jury to conclude that Farley did not act in good
faith. As discussed already in this opinion, Farley timely
386 302 M
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commenced his investigation of this vehicle fire after
receiving the requested information from ACIA regarding
its investigation of plaintiffs’ insurance claim. The vehicle
had been stored in a fenced lot and there is no evidence
that it had been tampered with at the time of his investi-
gation. Farley testified in his deposition that the vehicle
had been stored “nose first up against a fence” and “it was
not accessible except from the rear hatch.” That Farley
may have misspoken about the exact date his investiga-
tion commenced does not lead to a conclusion of malice.
Further, Farley’s investigation into this vehicle fire was
fairly comprehensive and included interviews as well as
further analysis by a metallurgical engineer. Although
Walter claimed that there were people in the park on the
morning of the fire, those people were never identified.
And Farley’s conclusion that the fuel line was intention-
ally severed before the fire was consistent with Herndon’s
conclusion, as well as the metallurgical engineer’s conclu-
sion. Although some of the responding fire department
personnel concluded that the fire appeared accidental,
they were not certified fire investigators and their opin-
ions were not given following a thorough investigation. In
any case, a reasonable jury could not conclude that Farley
acted with malice, an intent to harm, or with such
indifference to whether harm would result, so as to be the
equivalent of a willingness that it does, merely because
Farley investigated this matter despite any such opinions
by the responding firefighters. Accordingly, plaintiffs’ in-
tentional tort claims were properly dismissed by the trial
court.
Finally, plaintiffs argue that the trial court errone-
ously treated their 42 USC 1983 “malicious prosecution
claim” as a state law claim and thus erred by dismissing
it on the basis of governmental immunity. We conclude
that the claim, to the extent that it was pleaded, was
properly dismissed.
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Count I of plaintiffs’ complaint was titled: “MALI-
CIOUS PROSECUTION AGAINST THE HERNDON
DEFENDANTS AND DETECTIVE FARLEY.” Count
VIII of plaintiffs’ complaint was titled: “42 U.S.C. 1983
CLAIM AGAINST ALL DEFENDANTS.” Thereafter,
plaintiffs averred in count VIII, in relevant part, as
follows:
102. Defendant Farley acted under color of state law
and with oppression and malice to Plaintiffs, to the depri-
vation of their rights, privileges and immunities secured by
the constitution and laws, including the right not to be
deprived of liberty or property without due process of law
as secured by the Fourth and Fourteenth Amendments to
the Constitution of the United States of America.
103. Defendant Farley made stigmatizing statements
about Plaintiff Walter Radu that called into question
Plaintiff’s good name, reputation, honor and integrity.
104. Defendant Farley’s statements impugned Plaintiff
Walter Radu’s professional reputation, causing a signifi-
cant road-block in his continued ability to practice his
profession. The stigmatizing statements by Defendant Far-
ley to Plaintiff Walter Radu’s employer causing them to
think Plaintiff had committed arson were false.
105. Defendant Herndon participated in the constitu-
tional wrong-doing, conspired with Defendant Farley to
have the criminal investigation reopened, maliciously pros-
ecuted the claim of arson against Plaintiff Walter Radu,
conspired to have the prosecution continued, and all De-
fendants knew, or should have known that a full disclosure
of the evidence would result in a dismissal of the charges
against Plaintiff Walter Radu, but all Defendants shared a
common goal to maintain a successful prosecution against
plaintiff Walter Radu which violated Plaintiffs’ federally
protected rights.
106. As a direct and proximate result of the Defendants’
conduct, Plaintiffs suffered serious damages and injuries,
including, but not limited to, legal and medical expenses,
humiliation, outrage and indignity, mental distress, anxi-
388 302 M
ICH
A
PP
363 [Aug
ety, sleeplessness and depression; embarrassment, shock
and trauma; other damages currently unascertainable,
exemplary damages and punitive damages.
Count IX of plaintiffs’ complaint was titled: “VIOLA-
TION OF 42 U.S.C. § 1983” and “VIOLATION OF
PLAINTIFFS’ EQUAL PROTECTION RIGHTS.”
Following oral arguments on Farley’s motion for
summary disposition, the trial court rendered its deci-
sion. After concluding that plaintiffs’ state law claims
were barred by governmental immunity and that Far-
ley’s actions did not rise to the level of gross negligence,
those claims were dismissed. The trial court then held:
“Likewise, the claims for violation of due process and
equal protection are dismissed, as the actions do not
shock the conscience, nor is there any evidence that
Defendant was motivated by a discriminatory purpose.”
It appears from the trial court’s holding that it con-
strued count VIII of plaintiffs’ complaint as a due
process claim considering the averments in ¶ 102. Al-
though in ¶ 105 plaintiffs alleged that Farley and Hern-
don conspired to have the criminal investigation re-
opened and “maliciously prosecuted the claim of arson”
against Walter, it is not clear from their averments that
plaintiffs were asserting a “malicious prosecution”
claim premised on a violation of the Fourth Amend-
ment. Nevertheless, we conclude that the trial court
properly dismissed this claim, albeit for a different
reason. See Fisher v Blankenship, 286 Mich App 54, 70;
777 NW2d 469 (2009). To the extent that plaintiffs
attempted to state a claim of malicious prosecution
under § 1983, such claim was properly dismissed.
As plaintiffs set forth in their brief on appeal, a claim
of malicious prosecution under § 1983 premised on a
violation of the Fourth Amendment consists of four
elements. Sykes v Anderson, 625 F3d 294 (CA 6, 2010).
2013] R
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ERNDON
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First, the defendant must have influenced or partici-
pated in the decision to prosecute the plaintiff. Id.at
308. Second, because this claim is premised on a viola-
tion of a constitutional right, the plaintiff must show
that there was a lack of probable cause for the criminal
prosecution. Id. Third, the plaintiff must show that, “as
a consequence of a legal proceeding,” he or she suffered
a “deprivation of liberty,” apart from the initial seizure.
Id. at 308-309 (quotation marks and citations omitted).
Fourth, the criminal proceeding must have been re-
solved in the plaintiff’s favor. Id. at 309.
On appeal, plaintiffs argue that Farley influenced or
participated in the decision to prosecute Walter and
supplied false information to establish probable cause,
which resulted in a bindover decision that was eventu-
ally dismissed by an order of nolle prosequi. However,
first, the evidence shows that Farley merely provided
the prosecutor’s office with a request for a warrant
review, which included his investigative reports and all
the information he had acquired regarding the vehicle
fire. There is no evidence to support plaintiffs’ claim
that Farley knowingly provided false information to the
prosecutor’s office in an attempt to persuade the pros-
ecutor to file criminal charges against Walter. There is
also no evidence that Farley otherwise participated in
the prosecutor’s decision to prosecute Walter. Second, in
light of the evidence, probable cause supported the
issuance of a warrant. Further, Farley did not testify at
Walter’s preliminary examination, only Herndon testi-
fied, and the lower court determined that there was
probable cause to bind Walter over on the charges.
Third, plaintiffs have failed to address the third ele-
ment of a malicious prosecution claim by showing that,
as a consequence of a legal proceeding, Walter suffered
a deprivation of liberty. Plaintiffs did not address this
element in their response to Farley’s motion for sum-
390 302 M
ICH
A
PP
363 [Aug
mary disposition. And plaintiffs have failed to present
any evidence showing that, as a consequence of the legal
proceeding, Walter suffered a deprivation of liberty.
Therefore, we conclude that Farley’s motion for sum-
mary disposition pursuant to MCR 2.116(C)(10) was
properly granted with regard to this claim.
In summary, the Herndon defendants’ motions for
summary disposition premised on statutory immunity
and release were properly granted. The Herndon defen-
dants were “representatives” within the contemplation
of the release plaintiffs entered into with ACIA, but
Herndon was not a signatory to the release; thus, the
trial court’s order in that regard is affirmed in part and
vacated in part. The Herndon defendants were entitled
to statutory immunity pursuant to MCL 29.4(6) and
MCL 500.4509(3); thus, the trial court’s order in that
regard is affirmed. Accordingly, the trial court’s order
dismissing all of plaintiffs’ claims against the Herndon
defendants is affirmed. Further, defendant Farley’s
motion for summary disposition was properly granted;
accordingly, the trial court’s order dismissing all of
plaintiffs’ claims against Farley is affirmed.
Affirmed in part and vacated in part.
S
ERVITTO
,P.J., and C
AVANAGH
and W
ILDER
, JJ., con-
curred.
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ERNDON
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391
DETROIT MEDICAL CENTER v PROGRESSIVE MICHIGAN
INSURANCE COMPANY
Docket No. 304622. Submitted February 5, 2013, at Detroit. Decided July 23,
2013. Approved for publication September 3, 2013, at 9:00 a.m. Leave
to appeal sought.
Detroit Medical Center brought an action in Wayne Circuit Court
against Progressive Michigan Insurance Company and Citizens
Insurance Company of America, seeking to recover personal
protection insurance benefits under the no-fault act, MCL
500.3101, et seq., for its treatment of a motorcyclist, from Progres-
sive, the insurer of the motorcycle owner. The motorcyclist lost
control of his motorcycle and crashed when he was speeding and
braked quickly after seeing bright headlights from an approaching
vehicle; the motorcycle never came into contact with the motor
vehicle. Following a bench trial, the court, Susan D. Borman, J.,
entered judgment in favor of plaintiff, concluding that the motor
vehicle was sufficiently involved in the motorcycle accident to
trigger entitlement to no-fault benefits. Progressive appealed.
The Court of Appeals held:
1. 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. While motorcycles are
excluded from the definition of motor vehicles under the no-fault
act, a motorcyclist is not necessarily excluded from recovering
those benefits when a motor vehicle is involved in the accident.
While the motor vehicle need not be the proximate cause of the
injury, there still must be a causal connection between the injury
sustained and the ownership, maintenance or use of the 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.” Actual physical contact be-
tween a motorcycle and a motor vehicle is not required to establish
the requisite involvement of a motor vehicle in an accident as long
as the causal connection exists; the motor vehicle must actively
contribute to the accident and have more than a random associa-
392 302 M
ICH
A
PP
392 [Sept
tion with the accident scene. In this case, the trial court erred by
determining that the motorcyclist’s injuries arose out of the use of
a motor vehicle as a motor vehicle and that the motor vehicle was
sufficiently involved in the accident to entitle the motorcyclist to
personal protection insurance benefits under MCL 500.3105(1).
There was no evidence that the motor vehicle created, through
some activity of its own, an actual and objective need for the
motorcyclist to take evasive action to avoid the motor vehicle.
Reversed and remanded for entry of judgment in favor of
Progressive.
I
NSURANCE —
N
O
-F
AULT
I
NSURANCE —
M
OTORCYCLES —
I
NVOLVEMENT OF
M
OTOR
V
EHICLES IN
A
CCIDENT
.
For purposes of the no-fault act, MCL 500.3101 et seq., an injury
arises out of the use of the motor vehicle as a motor vehicle when
the causal connection between the accident and the use of a motor
vehicle as a motor vehicle is more than incidental, fortuitous, or
“but for;” actual physical contact between a motorcycle and a
motor vehicle is not required to establish the requisite involve-
ment of a motor vehicle in an accident as long as the causal
connection exists; for a motorcyclist’s injury to arise out of the use
of a motor vehicle as a motor vehicle, thereby triggering entitle-
ment to personal protection insurance benefits under MCL
500.3105(1), the motor vehicle must actively create, through some
activity of its own, an actual and objective need for the motorcy-
clist to take evasive action to avoid the motor vehicle.
Miller & Tischler, PC (by Ronni Tischler), for Detroit
Medical Center.
Garan Lucow Miller, PC (by Daniel S. Saylor), for
Progressive Michigan Insurance Company.
Before: C
AVANAGH
,P.J., and S
AWYER
and S
AAD
,JJ.
P
ER
C
URIAM
. Defendant, Progressive Michigan Insur-
ance Company, appeals as of right the trial court’s order
entering judgment in favor of plaintiff, Detroit Medical
Center, for recovery of personal protection insurance
benefits under Michigan’s no-fault act, MCL 500.3101,
et seq., in the amount of $111,761.40. We reverse.
2013] D
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ED
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TR V
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393
This case involves a single-vehicle accident by a
motorcyclist. The motorcyclist, who was traveling up-
ward of 100 miles an hour on a dark and deserted side
street that intersected with Jefferson Road, saw bright
headlights from an approaching motor vehicle. The
motorcyclist applied his brakes to avoid colliding with
the vehicle, causing the motorcycle to fishtail. The
motorcyclist then lost control of the motorcycle and he
“drop[ped the] bike on its side,” hit the sidewalk, and
fell. The motorcycle never came into contact with the
vehicle. The motorcyclist sustained serious injuries in
the accident, which plaintiff treated. Plaintiff subse-
quently filed this lawsuit, seeking to recover personal
protection insurance benefits for its treatment of the
motorcyclist’s injuries, from defendant Progressive, the
insurer of the motorcycle owner. Following a bench
trial, the trial court entered judgment in favor of
plaintiff, concluding that the motor vehicle was suffi-
ciently involved in the accident to allow recovery of
no-fault benefits.
At issue in this single-vehicle-motorcycle-accident
case is whether, as a matter of law, the evidence
established that the motor vehicle, which did not make
physical contact with the motorcycle, was sufficiently
involved in the accident to trigger the motorcyclist’s
entitlement to no-fault benefits under MCL
500.3105(1). “Liability for no-fault personal protection
benefits is governed by MCL 500.3105.” Jones v Tronex
Chem Corp, 129 Mich App 188, 191; 341 NW2d 469
(1983). Under MCL 500.3105(1), “[t]he no-fault act
provides coverage for accidental bodily injury ‘arising
out of the ownership, operation, maintenance or use of
a motor vehicle as a motor vehicle.’ ” Greater Flint
HMO v Allstate Ins Co, 172 Mich App 783, 786; 432
NW2d 439 (1988), quoting MCL 500.3105(1). “Motor-
cycles are excluded from the definition of motor vehicles
394 302 M
ICH
A
PP
392 [Sept
under the no-fault act.” Sanford v Ins Co of North
America, 151 Mich App 747, 749; 391 NW2d 473 (1986);
MCL 500.3101(2)(e). However, “a motorcyclist is not
among those whom the Legislature has excluded from
benefits.” Underhill v Safeco Ins Co, 407 Mich 175, 185;
284 NW2d 463 (1979) superseded by statute on other
grounds as recognized by Autry v Allstate Ins Co, 130
Mich App 585, 590 n 1; 344 NW2d 588 (1983). Rather, in
Underhill, “the Supreme Court held that a motorcyclist
involved in an accident which arises out of the owner-
ship, operation, maintenance, or use of a motor vehicle
is entitled to no-fault benefits.” Autry, 130 Mich App at
590; see also Bromley v Citizens Ins Co of America, 113
Mich App 131, 134; 317 NW2d 318 (1982).
There is no “iron-clad rule” as to what level of
involvement is sufficient under MCL 500.3105. Dep’t of
Social Services v Auto Club Ins Ass’n, 173 Mich App
552, 557; 434 NW2d 419 (1988). However, “while the
automobile need not be the proximate cause of the
injury, there still must be a causal connection between
the injury sustained and the ownership, maintenance or
use of the automobile and which causal connection is
more than incidental, fortuitous or but for.” Kangas v
Aetna Cas & Surety Co, 64 Mich App 1, 17; 235 NW2d
42 (1975). “The injury must be foreseeably identifiable
with the normal use, maintenance and ownership of the
vehicle.” Id. The causal connection between the injuries
and the motor vehicle “cannot be extended to some-
thing distinctly remote,” Jones, 129 Mich App at 192
(citation and quotation marks omitted); see also Keller
v Citizens Ins Co of America, 199 Mich App 714, 715;
502 NW2d 329 (1993). Moreover, the injuries must be
more than “tangentially related to the use of an auto-
mobile” to trigger the entitlement to no-fault benefits.
Bromley, 113 Mich App at 135. Actual physical contact
between a motorcycle and a motor vehicle is not re-
2013] D
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quired to establish the requisite involvement of a motor
vehicle in an accident as long as “the causal nexus
between the accident and the car is established.” Id.;
Greater Flint HMO, 172 Mich App at 788. For a motor
vehicle to be involved in an accident, it “must actively,
as opposed to passively, contribute to the accident,” and
have “more than a random association with the acci-
dent scene.” Turner v Auto Club Ins Ass’n, 448 Mich 22,
35, 39; 528 NW2d 681 (1995).
1
“[T]here must be some
activity, with respect to the vehicle, which somehow
contributes to the happening of the accident.” Brasher
v Auto Club Ins Ass’n, 152 Mich App 544, 546; 393
NW2d 881 (1986).
Defendant claims that the trial court erred as a
matter of law by determining that the motor vehicle
was sufficiently involved in the motorcycle accident to
trigger entitlement to no-fault benefits under the facts
of this case. We agree. This question presents an issue of
law, which is subject to de novo review on appeal.
Stewart v State of Michigan, 471 Mich 692, 696; 692
NW2d 376 (2004). “Whether an injury arises out of the
use of a motor vehicle must be determined case by
1
MCL 500.3114(5) provides: “A person suffering accidental bodily
injury arising from a motor vehicle accident which shows evidence of the
involvement of a motor vehicle while an operator or passenger of a
motorcycle shall claim personal protection insurance benefits from
insurers in the following order of priority” and then sets forth the
priority of insurers potentially liable (emphasis added). The “involve-
ment of a vehicle” standard, which sets forth the priority of potential
insurers’ liability for no-fault benefits, “encompasses a broader causal
nexus between the use of the vehicle and the damage” than is required
under the “arising out of” standard under MCL 500.3105(1). Turner, 448
Mich at 35, 39. Accordingly, a vehicle may be involved in the motor
vehicle accident even though the injury did not arise out of the use of that
vehicle. Id. at 35. Therefore, involvement of a motor vehicle when a
motorcyclist sustains injuries in an accident is required for a motorcyclist
to recover benefits under the no-fault act.
396 302 M
ICH
A
PP
392 [Sept
case.” McKenney v Crum & Forster, 218 Mich App 619,
623; 554 NW2d 600 (1996); Jones, 129 Mich App at 192.
We can find no causal connection between the motor-
cyclist’s injuries and the use of a motor vehicle as a
motor vehicle sufficient to trigger entitlement to no-
fault benefits under MCL 500.3105(1). The motorcyclist
applied his brakes when he saw the vehicle’s headlights
approaching. The motorcyclist’s evasive action in brak-
ing rapidly was in response to seeing the moving
vehicle’s headlights and because of the braking he
fishtailed and lost control of the motorcycle, ultimately
causing him to crash. But this does not mean that the
motor vehicle was causally connected to the motorcy-
clist’s injuries, that is, that the injury “originated
from,” “had its origin in,” “grew out of,” or “flowed
from” the use of the vehicle as a motor vehicle. Shina-
barger v Citizens Mut Ins Co, 90 Mich App 307, 314; 282
NW2d 301 (1979) (citation and quotation marks omit-
ted).
Rather, the evidence established that the causal
connection between the motorcyclist’s injuries and the
motor vehicle was merely incidental, fortuitous, or “but
for.” Thornton v Allstate Ins Co, 425 Mich 643, 659; 391
NW2d 320 (1986); see also McPherson v McPherson,
493 Mich 294, 297; 831 NW2d 219 (2013). We cannot
say that the motor vehicle actively contributed to the
accident rather than merely being present. See Turner,
448 Mich at 39-40; Brasher, 152 Mich App at 546. While
it is true that “a vehicle which is motionless in a lawful
position is less likely to be considered involved,” and
that “a moving vehicle is much more likely to be held to
be involved,” Dep’t of Social Services, 173 Mich App at
557, that does not equate to a conclusion that the motor
vehicle was involved merely because it was moving.
There still needs to be a causal connection between the
2013] D
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397
injuries and the motor vehicle. For example, in Bromley,
113 Mich App at 133-135, this Court determined that
the motor vehicle was involved when that vehicle forced
the motorcyclist off the road when the vehicle veered
over the center line. And in Greater Flint HMO, 172
Mich App at 785, 788, the Court arrived at a similar
conclusion when a motor vehicle made a sudden and
unexpected stop that caused a chain reaction of emer-
gency stops that ultimately resulted in two motorcy-
clists colliding with each other while attempting to
avoid a car in front of them that had stopped.
In this case, there is no evidence that the motorcy-
clist needed to take evasive action to avoid the motor
vehicle. Rather, the evidence only established that the
motorcyclist was startled when he saw the approaching
headlights and overreacted to the situation. And while
fault is not a relevant consideration in determining
whether a motor vehicle is involved in an accident for
purposes of no-fault benefits, Turner, 448 Mich at 39,
we believe that principle is limited to not considering
fault in the cause of the accident, not whether the motor
vehicle was actually involved in the accident. That is,
had the motorcycle actually collided with the motor
vehicle, we would not consider whether the motorcyclist
or the motor vehicle driver was at fault in causing the
accident, nor would we consider whether the motorcy-
clist could have taken evasive action and avoided the
accident. But, where there is no actual collision between
the motorcycle and the motor vehicle, we cannot say
that the motor vehicle was involved in the accident
merely because of the motorcyclist’s subjective, errone-
ous perceived need to react to the motor vehicle. Rather,
for the motor vehicle to be considered involved in the
accident, the operation of the motor vehicle must have
created an actual need for the motorcyclist to take
evasive action. That is, there must be some activity by
398 302 M
ICH
A
PP
392 [Sept
the motor vehicle that contributes to the happening of
the accident beyond its mere presence. Brasher, 152
Mich App at 546.
Because the facts of this case did not support the
conclusion that there was an actual, objective need for
the motorcyclist to take evasive action, we conclude
that the trial court erred by determining that the
motorcyclist’s injuries arose out of the use of a motor
vehicle as a motor vehicle and that the motor vehicle
was sufficiently involved in the accident to entitle the
motorcyclist to personal protection insurance benefits
under the no-fault act. MCL 500.3105(1); MCL
500.3114(5).
Reversed and remanded to the trial court with in-
structions to enter judgment in favor of defendant,
Progressive Michigan Insurance Company. We do not
retain jurisdiction. Defendant may tax costs pursuant
to MCR 7.219 as the prevailing party.
C
AVANAGH
,P.J., and S
AWYER
and S
AAD
, JJ., concurred.
2013] D
ETROIT
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399
SPRENGER v BICKLE
Docket No. 310599. Submitted May 16, 2013, at Traverse City. Decided
September 10, 2013, at 9:00 a.m. Leave to appeal sought.
John C. Sprenger filed an action in the Benzie Circuit Court against
Emily R. Bickle, seeking a determination of his paternity of the
minor child under the Paternity Act, MCL 722.711 et seq., legal
and physical custody, parenting time, and child support. Plaintiff
alleged that he had been engaged to defendant for a period of time
after her divorce from Adam Bickle in April 2011, that plaintiff
and defendant had announced soon after the divorce that defen-
dant was pregnant with plaintiff’s child, that the engagement had
ended, and that defendant had remarried Adam Bickle in August
2011. Plaintiff claimed that he was the biological father of the
minor child born to defendant in November 2011 while she was
married to Adam Bickle. The circuit court, Nancy Ann Kida, J.,
granted defendant’s motion to dismiss pursuant to MCR
2.116(C)(5), concluding that plaintiff lacked standing to bring the
action. Plaintiff appealed.
The Court of Appeals held:
1. Only the mother and the presumed legal father may chal-
lenge the presumption of legitimacy of a child born during their
marriage. Under the Paternity Act, a third party has standing to
rebut the presumption of legitimacy only if there has been a prior
judicial determination arising from a proceeding between the
husband and wife that declares the child is not the product of the
marriage. In this case, because defendant and her husband, Adam
Bickle, had not requested a judicial determination that the child
was born out of wedlock, the trial court properly determined that
plaintiff lacked standing under the Paternity Act to claim pater-
nity of the child.
2. Because plaintiff lacked standing to bring an action under
the Paternity Act, he was not entitled to discovery to assist in
developing that paternity claim and the trial court properly denied
plaintiff’s motion for discovery. Whether Adam Bickle had a
vasectomy before defendant became pregnant with the minor child
was not relevant because Bickle was married to defendant at the
400 302 M
ICH
A
PP
400 [Sept
time the child was born and neither Bickle nor defendant had
sought a judicial determination challenging the presumption of
legitimacy.
3. When both parents in a divorce proceeding identify one child
as the issue of their marriage, but acknowledge that another child
was not, that divorce judgment is considered to have determined
the issue of paternity of both the children. In this case, although
defendant was most likely pregnant with the minor child at the
time of defendant and Adam Bickle’s April 2011 judgment of
divorce, the pregnancy was not identified in the judgment. Even
though the Bickles’ other children were identified by name in the
judgment, it was still presumed that Adam Bickle was the minor
child’s legal father because he was born after the couple had
remarried and neither defendant nor Adam Bickle had filed an
action to rebut the presumption of the child’s legitimacy, or
specified that Adam Bickle was not the child’s father. As a third
party, plaintiff lacked standing to request a modification of defen-
dant and Adam Bickle’s divorce judgment regarding paternity of
the minor child.
Affirmed.
G
LEICHER
, J., concurring, agreed with the majority opinion, but
wrote separately to state that the dissent misapprehended the law
and to reiterate that defendant did not have standing to challenge
the validity of the Bickles’ divorce.
B
OONSTRA
, J., dissenting, would have reversed the trial court
order and remanded for an evidentiary hearing. He would have
held that plaintiff had standing to seek an order of paternity under
the Paternity Act because the presumption of Adam Bickle’s
paternity of the child was sufficiently rebutted in the Bickles’ April
2011 divorce judgment; the Bickles’ knowledge of Adam Bickle’s
vasectomy, his likely inability to procreate, and identification of
three other children of their marriage in the judgment operated as
a stipulation in their divorce judgment that the child was not the
issue of the marriage. The trial court’s decision in the judgment of
divorce that the three specified children were the children of the
marriage, necessarily means that any child later born to defendant
was a child born out of wedlock. If after discovery the evidence
demonstrated that Adam Bickle could not have fathered the child
or that defendant was not honest in the divorce proceeding about
her pregnancy, Judge B
OONSTRA
would find that defendant had
standing.
Phelps Legal Group, PLC (by Eric W. Phelps and
Kathryn M. Traband), for John C. Sprenger.
2013] S
PRENGER V
B
ICKLE
401
Law Offices of Paul T. Jarboe (by Paul T. Jarboe and
Lauren K. Pfeil), for Emily R. Bickle.
Before: R
ONAYNE
K
RAUSE
,P.J., and G
LEICHER
and
B
OONSTRA
,JJ.
R
ONAYNE
K
RAUSE
,P.J. Plaintiff appeals as of right an
order entered on May 18, 2012, dismissing for lack of
standing his complaint regarding paternity brought
under the Paternity Act. MCL 722.711 et seq.We
affirm.
1
I. BASIC FACTS AND PROCEDURAL HISTORY
Plaintiff alleges that he is the biological father of a
minor child born to defendant in November 2011, while
she was lawfully married to someone else. Plaintiff and
defendant were briefly engaged after defendant’s di-
vorce from Adam Bickle in April 2011. Although the
parties dispute whether defendant was pregnant before
her divorce, mutual friends of the couple and members
of both their families assert that within days of the
divorce, defendant and plaintiff were sharing the news
that they were expecting a child. The engagement
between plaintiff and defendant ended; in August 2011,
defendant remarried Adam and they were still married
when she gave birth three months later.
In December 2011, plaintiff filed a paternity action
under the Paternity Act, alleging himself to be the
biological father of the child and requesting the court to
determine issues of legal and physical custody, parent-
ing time, and child support. In response, defendant filed
a motion to dismiss, asserting lack of standing, MCR
2.116(C)(5), and failure to state a claim on which relief
1
We publish this case pursuant to MCR 7.215(A). The majority did not
request publication.
402 302 M
ICH
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PP
400 [Sept
O
PINION OF THE
C
OURT
could be granted, MCR 2.116 (C)(8). In an April 6, 2012
ruling, the circuit court determined that plaintiff did
not have standing and granted defendant’s motion to
dismiss under MCR 2.115(C)(5). This appeal followed.
2
II. ANALYSIS
Plaintiff argues that the trial court erred by: (1)
finding that plaintiff lacked standing to bring a claim
under the Paternity Act because defendant had ac-
knowledged to friends and family that plaintiff was the
father of the child she was expecting, which rebutted
the presumption of the child’s legitimacy, and (2) deny-
ing him the opportunity to conduct discovery to prove
that it would have been impossible for Adam Bickle to
be the father. We disagree.
“This Court reviews the grant or denial of a motion
for summary disposition de novo.” Jones v Slick, 242
Mich App 715, 718; 619 NW2d 733 (2000). “In review-
ing a motion for summary disposition pursuant to MCR
2.116(C)(5), this Court must consider the pleadings,
depositions, admissions, affidavits, and other documen-
tary evidence submitted by the parties.” Id. “Statutory
interpretation is a matter of law subject to review de
novo on appeal.” Rose Hill Center, Inc v Holly Twp, 224
Mich App 28, 32; 568 NW2d 332 (1997). “If the statu-
tory language is clear and unambiguous, judicial con-
struction is neither required nor permitted, and courts
must apply the statute as written.” Id.
2
Shortly after filing his brief with this Court, plaintiff filed a new
action in circuit court under the Revocation of Paternity Act, MCL
722.1431 et seq., which became effective June 12, 2012. The Revocation of
Paternity Act gives putative fathers in certain situations standing to
bring paternity actions. In this case, we are reviewing decisions made in
the context of the Paternity Act only, and our conclusions have no bearing
on the action filed under the Revocation of Paternity Act.
2013] S
PRENGER V
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ICKLE
403
O
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OURT
Only the mother and the presumed legal father may
challenge the presumption of legitimacy. People v Zajac-
zkowski, 293 Mich App 370, 378; 810 NW2d 627 (2011),
vacated 493 Mich 6 (2012) (vacating defendant’s con-
viction of first-degree criminal sexual conduct by rely-
ing on the plain language of the criminal statute rather
than the civil presumption concerning legitimacy). See
also In re KH, 469 Mich 621, 635; 677 NW2d 800 (2004)
(recognizing that only the mother and the legal father
may rebut the presumption of legitimacy that arises
when a child is born during a marriage). In order for a
third party to have standing to rebut this presumption,
there must first have been a “judicial determination
arising from a proceeding between the husband and the
wife that declares the child is not the product of the
marriage.” Pecoraro v Rostagno-Wallat, 291 Mich App
303, 306; 805 NW2d 226 (2011). Letters from friends
and family cannot rebut the presumption of legitimacy.
In this case, even if blood test results revealed a 99.99%
probability that he is the biological father, plaintiff still
would not have standing to bring a paternity action
absent such a prior judicial determination. Aichele v
Hodge, 259 Mich App 146, 148, 162; 673 NW2d 452
(2003). Unless and until defendant and her husband
ask a court to declare that the child was born out of
wedlock, plaintiff lacks standing to claim paternity
under the Paternity Act. Pecoraro, 291 Mich App at
313.
3
Defendant and her husband have not sought such
a judicial declaration; therefore, the trial court was
3
In Pecoraro, the birth mother told the plaintiff that he was the father
of a child born during their relationship, while she was married to
another man, DNA confirmed his paternity, and a New York court issued
an order of filiation declaring him the father of the child that was
subsequently enforced by a Wayne Circuit Court. On appeal from the
circuit court’s decision, this Court found that the plaintiff lacked stand-
ing under the Paternity Act because the mother and her husband had not
asked a court to declare that the child was born out of wedlock.
404 302 M
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correct in determining that plaintiff lacks standing to
pursue a remedy under the Paternity Act.
The trial court also correctly denied plaintiff’s re-
quest for discovery. Because plaintiff does not have
standing to bring an action under the Paternity Act, he
is not entitled to discovery to assist in developing a
paternity claim.
4
Even if the court had inexplicably
allowed discovery, there was no information plaintiff
could have discovered through the questions he pro-
posed that would have conferred standing absent a
prior judicial determination that the child was not the
issue of defendant’s marriage.
5
Plaintiff also argues that the court should vacate or
modify defendant’s judgment of divorce to address the
paternity issue. Plaintiff contends that if defendant knew
she was pregnant at the time of her divorce and failed to
acknowledge as much to the court, she perpetrated a fraud
on the court and the court should vacate the judgment.
Alternatively, plaintiff argues that if the court could not
address paternity because defendant did not know she
was pregnant, the court should address the issue now and
modify the judgment accordingly. We disagree.
In support of his argument that the judgment of divorce
should be vacated as a fraud on the court, plaintiff relies
on Allen v Allen, 341 Mich 543; 67 NW2d 805 (1954), and
4
It is true, as the dissent notes, that the majority did not provide
authority for its conclusion that because plaintiff lacked standing he was
not entitled to discovery. It is axiomatic.
5
The dissent considers the “controlling consideration” to be “whether
the legal father was in fact ‘incapable of procreation’ at the time of the
child’s conception.” As Aichele and Pecoraro clearly illustrate, however,
biological fatherhood is not the dispositive issue. Regardless of whether
defendant’s husband had a vasectomy after the birth of their third child,
under Michigan law he is the legal father of the child at issue in the
instant case and, for purposes of the Paternity Act, remains so until he
and the mother seek a judicial determination declaring otherwise.
2013] S
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ICKLE
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DeHaan v DeHaan, 348 Mich 199; 82 NW2d 432 (1957).
In both Allen and DeHaan, the plaintiff wives became
pregnant while separated from their husbands. The
courts set aside their judgments of divorce on the basis of
fraud. The law under which the Court decided these cases
called for the granting of interlocutory decrees of divorce
that would become final after a specified period. See
Young v David Young, 342 Mich 505, 506; 70 NW2d 730
(1955). The marital relationship between the parties did
not end until the interlocutory decree became final, and a
plaintiff’s misconduct during that interlocutory period
resulted in his or her loss of the right to an absolute
divorce decree. Linn v Linn, 341 Mich 668, 673; 69 NW2d
147 (1955); Curtis v Curtis, 330 Mich 63, 66; 46 NW2d 460
(1951). Thus at the time Allen and DeHaan were decided,
“a party’s marital misconduct was an absolute bar to that
party’s ability to obtain a divorce. Had the trial court
known of plaintiff’s misconduct, by law it would have been
powerless to grant the divorce.” Rogoski v City of
Muskegon, 107 Mich App 730, 737 n 3; 309 NW2d 718
(1981).
Substantial changes in divorce law since the 1950s
render those cases inapplicable to the instant case. But
even if Allen and DeHaan were applicable, plaintiff
would not have standing to invoke them because, unlike
Allen and DeHaan, plaintiff was not a party to the
instant defendant’s divorce.
6
With regard to modifying
the judgment of divorce to address the paternity of the
child, plaintiff does not have standing to request the
court to modify a divorce to which he is not a party. Berg
v Berg, 336 Mich 284, 288; 57 NW2d 889 (1953) (“[T]he
husband and wife are the only parties to be recognized
in a divorce case.”).
6
The petitioners in Allen were actually the trustee of the deceased
husband’s estate and two heirs-at-law whom the court allowed to join.
406 302 M
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Finally, plaintiff argues that defendant’s judgment of
divorce provided for the custody and care of some of her
children but not for the child with whom she was then
pregnant. Plaintiff argues that this is tantamount to a
judicial determination that the child was not issue of
the marriage, which suffices to confer standing under
the Paternity Act. We disagree.
In support of his argument to vacate defendant’s
judgment of divorce, plaintiff cites Afshar v Zamarron,
209 Mich App 86; 530 NW2d 490 (1995). Afshar claimed
to be the biological father of a daughter conceived and
born to Zamarron while she was married to another
man. The lower court dismissed Afshar’s action for lack
of standing. This Court confirmed on appeal that a
putative father has standing under the Paternity Act
only when a child has been born out of wedlock as
defined by the act and also stated that “a divorce
judgment that is specific with regard to the question of
custody and support of one minor child of the marriage
and that is silent with regard to another child may,
under appropriate circumstances, be deemed to have
determined the issue of paternity.” Id. at 91-92. Afshar
may be distinguished from the instant case, however,
because in Afshar, both Zamarron and her husband had
acknowledged in their divorce proceedings that Zamar-
ron’s daughter was not issue of their marriage. This
mutual acknowledgment by mother and presumed fa-
ther in the context of judicial proceedings was critical to
this Court’s conclusion that the determination that the
child was not issue of the marriage was implicit in the
judgment of divorce.
7
In the instant case, as has been
7
The dissent says “the controlling consideration is not whether the
parties to the divorce proceeding expressly made the court aware of the
fact that the child was not the issue of the marriage.” This is simply
untrue. That is precisely the consideration that allowed this Court to
conclude in Afshar that the determination that the child was not the
2013] S
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ICKLE
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repeatedly stated, neither defendant nor the child’s
legal father has sought to rebut the presumption of the
child’s legitimacy.
The dissent finds it notable that “[a]t a time when
too many fathers are running from their parental
responsibilities, plaintiff in this case is running toward
his.” This echoes a sentiment expressed nearly a decade
ago by this Court in Spielmaker v Lee, 205 Mich App,
51; 517 NW2d 558 (1994). In Spielmaker, this Court
determined that the putative father of a child born two
months after the mother’s marriage to another man did
not have standing under the Paternity Act because the
mother was not “not married” during the entire time
from conception to birth, and therefore the woman’s
husband was the child’s legal father. Id. at 58. The
panel observed that “at a time when much criticism is
leveled at ‘deadbeat dads’ who fail to assume responsi-
bility for their children...wearefaced with a father
issue of the marriage was implicit in the judgment of divorce. The fact
that both the mother and the presumed father acknowledged to the court
that the child was not issue of the marriage was a necessary prerequisite
for the plaintiff to acquire standing under the Paternity Act. Id.at92.
The dissent further tries to minimize the crucial significance of the
mother and presumed father’s admissions by asserting that Afshar
stands for the proposition that “a biological father could have standing
under the Paternity Act where...thedivorce judgment was specific as to
the paternity of one child and silent as to the paternity of another child”
and could therefore be a determination that the unmentioned child was
not issue of the marriage. What the Court actually held was that this is
so “under appropriate circumstances.” Id. at 91-92. And Afshar “presents
an example of such circumstances” because both the mother and the
presumed father had acknowledged to the court that the child was not
issue of the marriage. Id. In the instant case, the dissent would construe
the court’s silence regarding the child at issue as “an affirmative finding”
that the child was not issue of the marriage. Presumably, the silence of
the parties to the divorce would be construed as a tacit request for the
court to declare that the child was born out of wedlock, since such is
required before plaintiff could have standing under the Paternity Act.
This is illogical.
408 302 M
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who wishes to do precisely that yet we are obligated to
deny him the opportunity.” Id. at 59. Rather than
contort the law, however, the Spielmaker panel did
“that which [they were] obligated to do, namely inter-
pret[ed] a statute and appl[ied] the statute as written
and in light of the precedent set by the Supreme Court.”
Id. The panel expressed its dislike for the result and
urged the Legislature to modify the statute. Id.at60.
The Legislature has in fact provided a measure of
relief for putative fathers by allowing them to bring
paternity claims in certain situations. As mentioned,
the lower court dismissed plaintiff’s case for lack of
standing just weeks before the Revocation of Paternity
Act became effective. Plaintiff filed a separate lawsuit
under this new act, and that case is still pending. We
have not been called upon to decide whether plaintiff
has standing under the Revocation of Paternity Act.
Rather, this case concerns whether plaintiff has stand-
ing under the Paternity Act. The majority holds the
trial court correctly determined that he does not.
Affirmed.
G
LEICHER
, J., concurred with R
ONAYNE
K
RAUSE
,P.J.
G
LEICHER
,J.(concurring). I fully concur with the ma-
jority opinion and write separately only to respectfully
respond to the dissent.
The dissent laments that “[a]t a time when too many
fathers are running from their parental responsibilities,
plaintiff in this case is running toward his.” Plaintiff’s
virtue aside, an insurmountable obstacle blocks his
path to paternity: the minor child already has a father.
That father is Adam Bickle. Adam and Emily Bickle
legally married before the child was born. Their mar-
riage created a presumption that Adam fathered the
2013] S
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ICKLE
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child. Neither Emily nor Adam ever attempted to rebut
this presumption. And no court has determined that
Adam is not the child’s father. These facts resolve this
case, regardless of plaintiff’s noble intentions.
Emily and Adam have divorced each other twice and
married thrice. They have three children other than the
involved minor. Relying on statements attributed to
Emily Bickle regarding the date of the involved minor
child’s conception, the dissent would hold that “the
presumption of Adam Bickle’s paternity of the child was
sufficiently and effectively rebutted in a prior legal
proceeding between defendant and Mr. Bickle to require
further proceedings in the trial court.” That legal
proceeding, the dissent asserts, was the Bickle’s second
divorce. The dissent theorizes that Emily conceived the
involved child as early as March 27, 2011, less than two
weeks before the pro confesso divorce hearing. Accord-
ing to the dissent, Emily may have known that she was
pregnant with plaintiff’s child when she testified at the
hearing, and may have committed a fraud on the court
by not revealing her pregnancy.
1
The dissent posits that
because Adam had undergone a vasectomy, Emily’s
failure to disclose the pregnancy at the divorce hearing
affords plaintiff with standing to sue under the Pater-
nity Act.
The dissent misapprehends the law. To have standing
to file a paternity action, a plaintiff must “allege that a
‘court has determined’ that the child was not the issue
of the marriage.” Girard v Wagenmaker, 437 Mich 231,
1
Most home pregnancy tests are not accurate until more than two
weeks after ovulation, rendering it highly unlikely that Emily knew she
was pregnant by the April 8, 2011 divorce hearing even if she had
conceived on the earliest date postulated by the dissent, March 27, 2011.
See Home pregnancy tests: can you trust the results?,
<http://www.mayoclinic.com/health/home-pregnancy-tests/PR00100>
(accessed July 9, 2013).
410 302 M
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244; 470 NW2d 372 (1991). “To overcome the strong
presumption of the legitimacy of a child born or con-
ceived during a marriage, a court determination must
settle with finality a controversy regarding the child’s
legitimacy.” Barnes v Jeudevine, 475 Mich 696, 704; 718
NW2d 311 (2006). No court has made any such deter-
mination. Emily’s post-divorce statements concerning
the date of conception are not a substitute for a prior
legal proceeding. And Adam’s vasectomy (even if he
actually had one) possesses no relevance whatsoever.
2
Neither Emily nor Adam ever sought to rebut the
presumption that Adam is the child’s father. Accord-
ingly, plaintiff lacks standing to do so.
Contrary to the dissent, the facts in this case are not
“unique” and do not counsel a creative reinterpretation
of the Paternity Act. Plaintiff’s story merely echoes
Barnes, Girard and countless other cases: the spurned
lover of a married woman seeks a declaration that he
fathered the child born of the affair. As the Supreme
2
The “evidence” of Adam’s vasectomy is a statement contained in a
letter written by Emily’s mother. Needless to say, this “evidence” is pure
hearsay. Moreover, even if Adam actually had a vasectomy, he neverthe-
less could have impregnated Emily. Vasectomy has a failure rate of less
than one percent if performed by an experienced doctor, but tests are
required afterward to ensure the effectiveness of the procedure. Vasec-
tomy risks and benefits: what every man should know,
<http://men.webmd.com/features/vasectomy-risks-benefits> (accessed
July 9, 2013). In Foster v Eichler, 939 SW2d 40 (Mo Ct App, 1997), for
example, a father contesting paternity asserted that he had undergone a
vasectomy and had three postoperative semen analyses negative for
sperm, two before and one after the child’s birth. Yet a DNA test
identified him as the child’s father, which sufficed to support the trial
court’s paternity ruling.
Moreover, the irrelevance of Adam’s alleged vasectomy is not a
“sweeping[] assert[ion]” meant to negate the ability of a party with
standing to rebut the presumption of legitimacy with evidence of an
“incapability of procreation.” The dissent misses the point that this
ground could have been raised by Adam or Emily, but not by plaintiff.
2013] S
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ICKLE
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Court has repeatedly explained, when married parents
choose not to explore the paternity of a child born
during a marriage, a putative father has no right to
meddle with their decision. Children born during a
marriage benefit from a “legal regime” that presumes
their legitimacy. In re CAW, 469 Mich 192, 199; 665
NW2d 475 (2003). “It is likely that these values, rather
than failure to consider the plight of putative fathers
who wish to invade marriages to assert paternity
claims, motivated the drafters of the rules and statutes
under consideration.” Id. at 199-200. Make no mistake,
plaintiff seeks to invade a marriage and the dissent
would provide him the legal tools to accomplish that
invasion.
The dissent asserts that plaintiff’s presentation of
“clear and convincing evidence” that Adam did not
father the child should open the courthouse door to
discovery in plaintiff’s paternity action. The dissent is
incorrect. Plaintiff has no standing to challenge the
validity of the Bickles’ earlier divorce regardless of any
“evidence” that plaintiff may amass. “[T]his Court has
been loath to invalidate divorce judgments on the
urgings of third parties when neither spouse challenged
the validity of the divorce in a direct appeal.” Estes v
Titus, 481 Mich 573, 588; 751 NW2d 493 (2008). Nor is
plaintiff empowered to launch an inquisition into
whether Emily misrepresented at the pro confesso hear-
ing that she was not pregnant: “[T]he Court has refused
to invalidate divorces on the basis of third-party allega-
tions of nonjurisdictional irregularities in the divorce
proceedings.” Id. In other words, the validity of the
Bickles’ divorce is the Bickles’ business, not that of
plaintiff. And by making a “prior proceeding” a prereq-
uisite to a paternity action, “the Legislature has essen-
tially limited the scope of parties who can rebut the
presumption of legitimacy to those capable of address-
412 302 M
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,J.
ing the issue . . .—the mother and the legal father.” In
re KH, 469 Mich 621, 635; 677 NW2d 800 (2004).
The dissent suggests an exploration of the pro con-
fesso divorce proceedings to determine Emily’s veracity
but provides no details concerning the appropriate
scope of such discovery. Should Emily be forced to
submit to a polygraph regarding her awareness of the
exact date of conception? And why stop there? If plain-
tiff may explore whether Emily made a misrepresenta-
tion, why not evaluate Adam’s fertility by ordering him
to produce semen for a sperm analysis? Of course, the
child would be compelled to undergo a DNA evaluation.
Emily’s medical records would be fair game for disclo-
sure, as would Adam’s. Perhaps expert witnesses could
be engaged to opine regarding the date of conception,
the accuracy of home pregnancy tests, and the success
rate of vasectomies. The specter of an invaded marriage
has arrived.
Adam has chosen not to test or renounce his pater-
nity of the involved child. Emily has elected to consider
Adam the child’s father. This married couple is raising
three other children who undoubtedly consider the
fourth child their sibling. Adam is the only father the
child has ever known. That a court may disrupt this
family by issuing discovery orders or ultimately remov-
ing the child from his home is nothing short of chilling.
It is precisely this scenario that the Legislature in-
tended to avoid by limiting the parties that may chal-
lenge a child’s paternity to the child’s legal parents.
Thus, as the majority opinion correctly concluded,
plaintiff lacks standing regardless of Emily’s state-
ments, the date of her conception, Adam’s putative
vasectomy, or the fruits of any discovery.
The Legislature and our Supreme Court have placed
beyond debate that only a mother or a legal father has
2013] S
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ICKLE
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,J.
standing to rebut the presumption of paternity. By
resting its decision on this tenet, the trial court cor-
rectly resolved this case.
B
OONSTRA
,J.(dissenting). At a time when too many
fathers are running from their parental responsibilities,
plaintiff in this case is running toward his.
1
He seeks to
affirm, under the Paternity Act, MCL 722.711 et seq.,
his parentage of the minor child. Specifically, he re-
quests genetic testing to establish paternity, joint physi-
cal custody of the child (including specified parenting
time for plaintiff and defendant), and a determination
of support in accordance with the Michigan Child
Support Formula.
The trial court dismissed plaintiff’s complaint for
lack of standing, and the majority affirms. I agree with
the majority generally as to the standard for seeking
relief under the Paternity Act. However, I disagree, on
the unique facts of this case and the current record, that
plaintiff lacks standing under the Paternity Act to seek
to affirm his parentage of the minor child. More specifi-
cally, I believe that the presumption of Adam Bickle’s
paternity of the child was sufficiently and effectively
rebutted in a prior legal proceeding between defendant
and Mr. Bickle to require further proceedings in the
trial court.
2
I would, however, refrain from making a
1
The majority cites Spielmaker v Lee, 205 Mich App 51; 517 NW2d 558
(1994), as echoing a similar sentiment, but as nonetheless interpreting
and applying the law as written. Notably, however, Spielmaker did not
present the issues raised in this appeal, or address the same statutory
language or pertinent case law. With due respect to the majority, my
analysis and conclusion do not “contort the law,” but rather interpret and
apply it in a new and unusual factual context.
2
With due respect to the concurrence, its assertion that this
conclusion of the dissent “rel[ies] on statements attributed to Emily
Bickle regarding the date of the involved minor child’s conception” is
414 302 M
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OONSTRA
,J.
conclusive finding of whether plaintiff rebutted the
presumption without the development of a further
evidentiary record in the trial court. Accordingly, I
dissent from the majority opinion, and would reverse
and remand for further proceedings consistent with the
reasoning set forth below.
I. BACKGROUND
The facts of this case are unusual and unique.
3
Defendant is now married for the third time to Mr.
simply false. As the discerning reader no doubt will recognize, the
concurrence hyperbolically mischaracterizes the dissent’s positions in
many respects, and then challenges positions that the dissent has not
taken, while ignoring those that it has. But this familiar straw-man
technique merely serves to substitute misleading rhetorical flair for
the intellectually honest debate for which the important issues raised
on this appeal cry out, relative to the proper interpretation of the
Paternity Act and the case law.
3
To further its purposes, the concurrence even disputes that the
facts of this case are unique, and posits that they “merely echo[]”
those of other cases. Really? As the concurrence acknowledges,
defendant and Mr. Bickle have “divorced each other twice and married
thrice.” Between the Bickles’ second divorce and third marriage,
defendant became engaged to plaintiff. She apparently was carrying
plaintiff’s child. Mr. Bickle reportedly had a vasectomy years prior to
the conception of that child, the fact of which the Bickles were well
aware at the time of their second divorce. Before the child’s birth,
defendant broke off the engagement with plaintiff and instead again
remarried Mr. Bickle, just four months after she had divorced Mr.
Bickle (for the second time). Defendant’s own mother has observed
that “[u]nplanned babies seem to encourage unplanned marriages to
Adam Bickle which also brings dependency on the welfare system.”
Defendant denied her own mother (her children’s grandmother)
further contact with defendant’s children. For reasons that are
obvious, the concurrence does not explain which of the cited or uncited
cases purportedly reflect facts akin to these, or similarly present a
situation in which intervening vasectomies, divorces, engagements,
and remarriages—in contrast to an out-of-wedlock pregnancy occur-
ring during a single, continuous, procreative marriage—occurred
during the course of a pregnancy. The concurrence thus ignores reality
to impugn plaintiff as “seek[ing] to invade a marriage” and to falsely
2013] S
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ICKLE
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ISSENTING
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OONSTRA
,J.
Bickle. Their second divorce was final on April 8, 2011.
Prior to the Bickles’ second divorce judgment, plaintiff
and defendant entered into a relationship that plaintiff
maintains resulted in the conception and subsequent
birth of the minor child at issue in this case, with whom
plaintiff seeks to have a father-son relationship. On
April 11, 2011, three days after the final hearing in
defendant’s second divorce proceeding with Mr. Bickle,
defendant told her mother that she was pregnant with
plaintiff’s child. Defendant also advised others that she
was pregnant with plaintiff’s child on the basis of the
“confirmation” supplied by a pregnancy test taken by
plaintiff in the bathroom of a Meijer’s store. The date of
that pregnancy test is not reflected in the current
record, nor is there any evidence in the record as to
when defendant began to suspect that she might be
pregnant.
Record evidence reflects that Mr. Bickle had a vasec-
tomy after the birth of defendant’s third unplanned
child in 2009 (prior to his second divorce from defen-
dant), and that he therefore likely could not have
conceived the minor child at issue.
4
Plaintiff has sought
paternity testing, but it has not been conducted because
of the determination below that plaintiff lacked stand-
ing under the Paternity Act. Although the evidence
suggests that defendant has openly acknowledged
plaintiff’s paternity of the child, defendant has formally
characterize this dissent as seeking to “provide him the tools to
accomplish that invasion.” The law does not require that we wear such
blinders.
4
The concurrence seeks to marginalize the evidence of Mr. Bickle’s
vasectomy as “pure hearsay,” and thus even characterizes the vasectomy
as a “putative” one. Of course, no one has disputed the fact of the
vasectomy, the concurrence’s characterizations notwithstanding. The
concurrence then pads its blindfold by inconsistently denying the very
discovery that would definitively answer the question that the concur-
rence clearly wishes to leave unanswered.
416 302 M
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neither admitted nor denied plaintiff’s claim of pater-
nity in the course of this litigation.
5
After defendant’s second divorce from Mr. Bickle in
April 2011, plaintiff and defendant became engaged,
and planned to be married. That marriage did not,
however, occur. Instead, defendant and Mr. Bickle mar-
ried, for a third time, in August 2011. The minor child
was born on November 16, 2011, while defendant and
Mr. Bickle were again married. The child was born five
weeks premature.
Plaintiff’s complaint initially alleged—on informa-
tion and belief—that the minor child was conceived
after the April 8, 2011 divorce judgment, and while
plaintiff and defendant were engaged. Plaintiff now
maintains, however, that the conception occurred prior
to the April 8, 2011 divorce judgment, as in fact now
appears likely.
It appears that defendant may also have shifted her
position with regard to the date of conception. The April 8,
2011 Default Judgment of Divorce, which was prepared by
defendant’s counsel and entered at defendant’s request,
provides in part that defendant shall have primary physi-
cal custody of the parties’ three minor children (not
including the then-unborn child at issue in this case), and
that defendant and Mr. Bickle shall have joint legal
custody of those three minor children. The Judgment of
Divorce identifies those three other minor children by
name and birthdate, and expressly describes them as “the
minor children of the parties.” (Emphasis added.) This
language reflects and constitutes a representation and
finding that there were no other children of the marriage.
See Afshar v Zamarron, 209 Mich App 86, 92; 530 NW2d
490 (1995). The parties agree that the Judgment of
5
In lieu of answering plaintiff’s complaint in this matter, defendant
filed a motion to dismiss pursuant to MCR 2.116(C)(5).
2013] S
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ICKLE
417
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,J.
Divorce is silent with respect to any other children,
including any conception of, or pregnancy with, the minor
child here at issue. The Judgment of Divorce reflects that
it was premised in part on defendant’s “testimony taken
in open Court,” which testimony is not before us and
appears not to have been before the trial court below. We
therefore do not currently have a record of the represen-
tations, if any, by defendant at the April 8, 2011 hearing,
as to any pregnancy, or lack thereof, as of that date.
6
Also not before us is evidence of defendant’s current
position relative to the date of conception. However,
plaintiff’s counsel has represented, as an officer of this
Court, that defendant has submitted evidence in a
related proceeding that the conception could only have
occurred prior to the April 8, 2011 Judgment of Divorce
and, in fact, that the window of conception was from
March 27, 2011 to April 3, 2011. Also not in the current
record is any evidence of whether defendant knew of, or
had reason to suspect, her pregnancy with the child at
issue as of the date of the divorce judgment.
II. STANDARD OF REVIEW
Whether a party has legal standing to assert a claim
is a question of law which this Court reviews de novo.
6
MCL 552.45 provides that every complaint for divorce “shall set forth
the names and ages of all children of the marriage.” Generally, the proofs
taken by the trial court at a divorce hearing should include a determi-
nation of whether any of the parties is pregnant at the time of the
hearing. See Tyler v Tyler, 348 Mich 169, 172; 82 NW2d 448 (1957)
(holding that the trial court was empowered to vacate a pro confesso
divorce decree when it became aware that the complainant was pregnant
at the time the default judgment was entered and no provision had been
made for the child in the judgment); Allen v Allen, 341 Mich 543, 551; 67
NW2d 805 (1954) (holding that the complainant’s failure to inform the
trial court of her pregnancy by a man other than her husband was “a
fraud on the court” that justified setting aside the divorce decree).
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Heltzel v Heltzel, 248 Mich App 1, 28; 638 NW2d 123
(2001). This Court also reviews de novo a trial court’s
ruling on a motion for summary disposition, including
one brought pursuant to MCR 2.116(C)(5). Aichele v
Hodge, 259 Mich App 146, 152; 673 NW2d 452 (2003).
“ ‘In reviewing a motion for summary disposition pur-
suant to MCR 2.116(C)(5), this Court must consider the
pleadings, depositions, admissions, affidavits, and other
documentary evidence submitted by the parties.’ ” Id.,
quoting Jones v Slick, 242 Mich App 715, 718; 619
NW2d 733 (2000). Our de novo review requires drawing
all inferences in the light most favorable to the plaintiff,
and then determining if the plaintiff established facts
that would give him standing to sue. McHone v Sos-
nowski, 239 Mich App 674, 676; 609 NW2d 844 (2000).
III. HISTORICAL BACKGROUND
As our United States Supreme Court has recognized,
the presumption of legitimacy, as well as its rebuttable
nature, have long been recognized:
The presumption of legitimacy was a fundamental prin-
ciple of the common law. H. Nicholas, Adulturine Bastardy
1 (1836). Traditionally, that presumption could be rebutted
only by proof that a husband was incapable of procreation
or had had no access to his wife during the relevant period.
(citing Bracton, De Legibus et Consuetudinibus Angliae, bk
i, ch 9, p 6; bk ii, ch 29, p 63, ch 32, p 70 (1569)). [Michael
H v Gerald D, 491 US 110, 124; 109 S Ct 2333; 105 L Ed 2d
91 (1989) (emphasis added).]
Subsequent to Bracton’s description (in 1569) of the
nature of the proofs required to rebut the presumption
of legitimacy, Lord Mansfield’s Rule was announced (as
dicta in an ejectment action) in Goodright v Moss,2
Cowp 591-594; 98 Eng Rep 1257-1258 (1777). See
Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977).
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Lord Manfield’s Rule
7
was an evidentiary rule prohib-
iting a husband and wife from testifying about “nonac-
cess” to prove the husband’s lack of paternity of a child
born during the marriage. That rule was “judicially
incorporated into the law of this state in Egbert v
Greenwalt, 44 Mich 245, 248; 6 NW 654; 38 Am Rep 260
(1880).” Serafin, 401 Mich at 633. Nearly a century
later, our Supreme Court abrogated Lord Mansfield’s
Rule in Serafin. Id. at 634 (“We agree that the rule has
outlived the policy reasons initially advanced to support
it and, finding none others persuasive, we hold that a
husband and wife may testify concerning nonaccess to
each other.”). The Court reiterated, however, that the
presumption of legitimacy remained “viable and
strong,” as well as rebuttable, and held that “clear and
convincing evidence” was required to rebut the pre-
sumption. Id. at 636.
I note, parenthetically, that even the restrictions of
Lord Manfield’s Rule did not address or undermine the
alternative basis traditionally recognized for rebutting
the presumption of legitimacy, i.e., “proof that a hus-
band was incapable of procreation.” Michael H, 491 US
at 124 (indirectly citing Bracton). Since the Court in
Serafin reiterated the rebuttable nature of the pre-
7
Quoting from Goodright, 2 Cowp at 592-594, the Serafin court, 401
Mich at 633, set forth Lord Mansfield’s Rule:
“[T]he law of England is clear, that the declarations of a father
or mother, cannot be admitted to bastardize the issue born after
marriage.
***
As to the time of the birth, the father and mother are the most
proper witnesses to prove it. But it is a rule, founded in decency,
morality, and policy that they shall not be permitted to say after
marriage, that they have had no connection, and therefore that the
offspring is spurious.”
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sumption, that basis for rebutting the presumption not
only has always been a viable one, but it remains so. In
addition to abrogating Lord Manfield’s Rule, however,
the Court in Serafin established a “clear and convinc-
ing” standard of proof for rebutting the presumption;
therefore, any such rebuttal of the presumption by way
of evidence that a husband was “incapable of procre-
ation” is subject to Serafin’s “clear and convincing”
standard of proof.
While these principles reflect the presumption of
legitimacy and its rebuttable nature, they do not estab-
lish who is entitled to rebut the presumption, i.e., who
has “standing” to contest paternity. The answer to that
question instead requires our statutory interpretation
of the Paternity Act itself. These long-standing prin-
ciples nonetheless inform my analysis.
IV. STANDING
Our Supreme Court has stated that
[t]he purpose of the standing doctrine is to assess whether
a litigant’s interest in the issue is sufficient to “ensure
sincere and vigorous advocacy.” Thus, the standing inquiry
focuses on whether a litigant “is a proper party to request
adjudication of a particular issue and not whether the issue
itself is justiciable.” [Lansing Sch Ed Ass’n v Lansing Bd of
Ed, 487 Mich 349, 355; 792 NW2d 686 (2010) (citations
omitted).]
A real party in interest is the one who is vested with
the right of action on a given claim. Id., citing Hoffman
v Auto Club Ins Ass’n, 211 Mich App 55, 96; 535 NW2d
529 (1995). “ ‘Standing does not address the ultimate
merits of the substantive claims of the parties.’ ” Id.at
357, quoting Detroit Fire Fighters Ass’n v Detroit, 449
Mich 629, 633; 537 NW2d 436 (1995) (opinion by
W
EAVER
, J.).
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A plaintiff has standing “whenever there is a legal
cause of action.” Lansing Sch Ed Ass’n, 487 Mich at
372. “Where a cause of action is not provided at law,
then a court should, in its discretion, determine
whether a litigant has standing.” Id. Standing may be
found 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 in-
tended to confer standing on the litigant.” Id.
“A putative father may maintain an action under the
Paternity Act only if the child is born out of wedlock.”
Afshar, 209 Mich App at 90. The act defines “child born
out of wedlock” as either (1) “a child begotten and born
to a woman who was not married from the conception to
the date of birth of the child”; or (2) “a child that the
court has determined to be a child born or conceived
during a marriage but not the issue of that marriage.”
MCL 722.711(a) (emphasis added). The first prong of
this definition is not applicable in this case; rather,
plaintiff has standing, if at all, under the second prong.
V. APPLICATION
In applying these principles to the circumstances
before us, I conclude that plaintiff likely has standing
under the Paternity Act, and would reverse and remand
for further proceedings relative to the question of
standing. Specifically, I would remand for discovery and
an evidentiary Serafin hearing to determine: (a) the
date of conception of the minor child; (b) whether Mr.
Bickle was “incapable of procreation” at that time; (c)
defendant’s and Mr. Bickle’s knowledge of that incapa-
bility; (d) the representations to and findings of the trial
court in the second divorce proceeding between defen-
dant and Mr. Bickle; and (e) appropriate testing regard-
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ing the actual paternity of the child.
8
Further, if those
proceedings demonstrate that Mr. Bickle could not have
fathered the child in question and/or that defendant
was less than fully forthright with the trial court in the
divorce proceeding relative to her pregnancy or possible
pregnancy, then plaintiff should be found to have stand-
ing under the Paternity Act, and his claim should be
allowed to proceed.
A. PRIOR JUDICIAL DETERMINATION
Our Supreme Court determined in Girard v Wagen-
maker, 437 Mich 231; 470 NW2d 372 (1991), that the
judicial determination referred to in the statute was a
prior determination: “For a putative father to be able to
file a proper complaint in a circuit court,...acircuit
court must have made a determination that the child
8
The majority concludes that because plaintiff does not (in the
majority’s view) have standing to bring an action under the Paternity
Act, he did not have standing to conduct discovery. The majority cites no
authority for this conclusion (apart from a bare reference to the discovery
subchapter of the Michigan Court Rules), but instead deems it “axiom-
atic.” I would find, to the contrary, that in determining whether plaintiff
has standing, plaintiff is first entitled to discovery on the issues that
relate to whether he has standing. Generally, a motion for summary
disposition is premature when discovery on a disputed issue has not been
completed, unless there is no reasonable chance that further discovery
will result in factual support for the nonmoving party. Village of Dimon-
dale v Grable, 240 Mich App 553, 566; 618 NW2d 23 (2000). Here, I would
find that discovery on issues related to standing would have at least a
reasonable chance of resulting in factual support for plaintiff, in light of
Afshar and Justice M
ARKMAN
’
S
reasoning in Barnes v Jeudevine, 475 Mich
696, 714-727; 718 NW2d 311 (2006) (M
ARKMAN
, J., dissenting). As outlined
herein, those issues include the date of conception of the minor child, Mr.
Bickle’s incapability of procreation as of that date, defendant’s and Mr.
Bickle’s knowledge of that incapability, the representations to, and
findings of, the trial court in the divorce proceeding between defendant
and Mr. Bickle, and appropriate testing to determine the paternity of the
child.
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ICKLE
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was not the issue of the marriage at the time of filing the
complaint.” Id. at 242-243. The requirement of a prior
judicial determination was recently reaffirmed in Pec-
oraro v Rostagno-Wallat, 291 Mich App 303; 805 NW2d
226 (2011).
9
I conclude, under the unique circumstances pre-
sented, that plaintiff should be afforded the opportunity
to demonstrate that defendant’s second divorce judg-
ment from Mr. Bickle satisfies this requirement.
10
The
record evidence to date reflects that (a) Mr. Bickle had
a vasectomy after the birth of defendant’s third child in
2009, and he therefore likely was “incapable of procre-
ation” at the time of the conception of the minor child
in question;
11
(b) the trial court in the divorce proceed-
9
The majority relies on Pecoraro in maintaining that plaintiff lacks
standing “until defendant and her husband ask a court to declare that the
child was born out of wedlock.” But there are two problems with this
expansive reading of Pecoraro. First, while Pecoraro indeed contains
language suggesting that the plaintiff in that case lacked standing
because “[the mother] and [her husband] have not asked a court to
declare that the child was born out of wedlock,” Pecoraro, 291 Mich App
at 313, the majority’s literal reading of that language would require that
the mother and her husband have acted jointly to request a declaration as
to paternity. Second, and more importantly, the point of Pecoraro was
that the prior proceeding (which there was brought in a New York court
for an order of filiation, and to which the legal father was not a party) was
not a proceeding between the mother and the legal father. It therefore did
not satisfy Girard’s requirement of a prior judicial proceeding between
the mother and legal father. Because the proceeding was between
defendant and Mr. Bickle, the Bickles’ second divorce proceeding does not
suffer that deficiency. Pecoraro is therefore inapposite.
10
Notwithstanding the clarity of this language, the concurrence
chooses to distort the dissent as if it somehow “misapprehends the law”
regarding the prior judicial determination requirement, and is instead
seeking a “substitute for a prior legal proceeding.” The plain language of
the dissent demonstrates otherwise.
11
The concurrence goes so far as to sweepingly assert that Mr. Bickle’s
likely incapability of procreation “possesses no relevance whatsoever.”
This flies in the face of the indisputable fact, as noted, that “incapability
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ing made the affirmative determination that three
specifically identified children were “the” children of
defendant’s marriage to Mr. Bickle; (c) this determina-
tion was made on the basis of representations by
defendant; (d) those representations were not denied by
Mr. Bickle; and (e) that determination constitutes a
further affirmative determination that there were no
other children, born or unborn, of the marriage.
12
B. AFSHAR v ZAMARRON
Of all of the cases cited by either the majority, the
concurrence, or this dissent, only Afshar analogously
involved the assessment of a putative father’s standing
under the Paternity Act where a prior judicial proceed-
ing between the mother and the legal father had in fact
made a determination of the issue of the marriage. In
Afshar, this Court recognized that a biological father
could have standing under the Paternity Act when, as
of procreation” is one of the two bases for rebutting the presumption of
legitimacy that have been recognized in the law from time immemorial,
and the one that retained its viability even while Lord Mansfield’s Rule
prevailed.
12
In addition to Pecoraro, the majority relies on People v Zajaczkowski,
293 Mich App 370, 378; 810 NW2d 627 (2011), vacated 493 Mich 6 (2012),
and Aichele, 259 Mich App at 148, 162; neither is persuasive of the
majority’s position. Not only did Zajaczkowski involve a criminal pro-
ceeding, and not only has it been vacated by our Supreme Court, but the
prior judicial proceeding in that case had affirmatively determined that
the defendant was the issue of the marriage in question. That determi-
nation stands in stark contrast to the Bickles’ second divorce judgment,
which expressly did not include the unborn child at issue as among “the”
children of the Bickles’ marriage. The majority’s reliance on Aichele is
also less than compelling. Not only did Aichele assess standing under the
Child Custody Act, MCL 722.21 et seq, rather than the Paternity Act, but
its holding importantly was premised on the absence of any prior judicial
proceeding whatsoever regarding a determination of paternity. It there-
fore again stands in stark contrast to this case, where the Bickles’ second
divorce judgment made an express determination of “the” children of the
marriage, and the unborn child was not included in that description.
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here, the divorce judgment was specific as to the pater-
nity of one child and silent as to the paternity of another
child, and that the divorce judgment may be
deemed—in a proceeding brought by the biological
father—to be a determination that the unmentioned
child was not the issue of the marriage. Afshar, 209
Mich App at 92. Similarly, under the unique circum-
stances of this case, I conclude that the divorce judg-
ment between defendant and Mr. Bickle may properly
be deemed a determination that the child in question
was not the issue of their marriage.
The majority distinguishes Afshar on the ground
that the mother and legal father in that case had
acknowledged that the unmentioned child was not the
issue of the marriage, and that the trial court in the
divorce proceedings was expressly aware of the child
and of that acknowledgment. See id. Indisputably, Af-
shar is not on all fours with this case; however, it is
difficult to imagine a case which would be, and I find
Afshar nonetheless instructive. To me, the controlling
consideration is not whether the parties to the divorce
proceeding expressly made the court aware of the fact
that the child was not the issue of the marriage. To
place controlling weight on that factor would, in my
mind, potentially reward a lack of candor to the tribu-
nal and exalt form over substance.
Rather, the controlling consideration to me is
whether the legal father was in fact “incapable of
procreation” at the time of the child’s conception,
coupled with the parties’ knowledge and representa-
tions at the time of the prior divorce proceeding. In this
case, the evidence reflects that Mr. Bickle had a vasec-
tomy after the 2009 birth of another child and therefore
likely was “incapable of procreation” at the time of
conception of the minor child in question. Also relevant
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to that consideration, as noted, is whether the parties to
the divorce proceeding were aware of that incapability
at the time of their representations to the court during
that proceeding. The evidence here suggests that defen-
dant likely was aware of Mr. Bickle’s incapability at the
time of her representations to the court in the divorce
proceeding, and it was on the basis of those represen-
tations that the court affirmatively found that three
specifically identified children (not including the child
at issue) were “the” issue of the marriage between
defendant and Mr. Bickle. Coupled with the fact of the
vasectomy itself (of which Mr. Bickle undoubtedly also
had knowledge), Mr. Bickle further confirmed that
child’s status as “non-issue” of the marriage by failing
to refute defendant’s representations to the court in the
divorce proceeding. Accordingly, defendant’s and Mr.
Bickle’s knowledge—at the time of their divorce—of Mr.
Bickle’s vasectomy and likely incapability of procre-
ation effectively equates to the stipulation in Afshar
that the child in question was not the issue of the
marriage.
13
C. BARNES v JEUDEVINE
I also agree with the logic of Justice M
ARKMAN
’s
observation in Barnes v Jeudevine, 475 Mich 696, 718;
718 NW2d 311 (2006) (M
ARKMAN
, J., dissenting): “The
trial court thus concluded, not unreasonably, that no
children were born of the marriage of Charles and [the]
defendant. As such, the child later born to defendant
must, for purposes of the Paternity Act, MCL
722.711(a), have necessarily been a ‘child born out of
wedlock.’ ” Similarly, in this case, the trial court’s con-
13
Amidst all its hyperbole and distortion, the concurrence nowhere
addresses the substance of this or any other of the dissent’s conclusions;
nor does the majority.
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ICKLE
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clusion in granting defendant her second divorce judg-
ment from Mr. Bickle, that the three children specifi-
cally identified in the divorce judgment were “the”
children of the marriage, necessarily means that any
other child later born to defendant was a “child born
out of wedlock” under the second prong of the statutory
definition. This is particularly true given Mr. Bickle’s
likely incapability of procreation, and defendant’s and
Mr. Bickle’s knowledge thereof at the time of their
second divorce judgment.
I recognize, of course, that Justice M
ARKMAN
’s obser-
vation was made in the dissent in Barnes. However, I
also find Barnes to be distinguishable and, therefore, its
majority opinion unpersuasive and nonbinding, in at
least two important respects. First, the Barnes majority
stressed the fact that “[t]he circuit court stated in the
judgment of divorce merely that it appeared no children
were born or expected of the marriage,” and that under
the clear and convincing evidence standard, “the
court’s statement that it appeared that no children
were born or expected of the marriage is not a sufficient
court determination that there was a child conceived
during the marriage that was not an issue of the
marriage.” Barnes, 475 Mich at 706 (emphasis added).
The same cannot be said in this case, because the trial
court here affirmatively found three specific children to
be “the” children of the marriage between defendant
and Mr. Bickle, to the exclusion of any others.
Second, a critical factor exists here that did not exist
in Barnes, i.e., there is evidence in this case that Mr.
Bickle was “incapable of procreation” at the time of the
conception of the minor child. Although I would remand
for the development of further evidence regarding that
factor, I find it hard to conceive of evidence that is more
“clear and convincing” of whether a minor child could
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be the issue of a marriage. In short, while the presump-
tion of legitimacy remains strong, it fails when “com-
mon sense and reason are outraged by a holding that it
abides.” Serafin, 401 Mich at 639 (C
OLEMAN
, J., concur-
ring) (quotation marks and citation omitted).
D. KNOWLEDGE OF OR REASON TO SUSPECT PREGNANCY
I note parenthetically that my conclusion does not
depend on defendant or Mr. Bickle having made misrep-
resentations to the trial court in the divorce proceeding.
14
That is, if Mr. Bickle indeed was incapable of procreation
at the time of conception, and if defendant and Mr. Bickle
had reason to know of his incapability at the time of the
divorce, I would find that sufficient to deem the divorce
judgment to have affirmatively found that the minor child
in question was not the issue of the marriage, and thus to
afford plaintiff standing, as noted above.
However, my conclusion would find further support
in any evidence that might reflect that defendant knew
of, or had reason to suspect at the time of her April 8,
2011 pro confesso hearing, that she was pregnant with
the minor child in question. A complaint for divorce is
required to identify the children of the marriage and to
state “whether a party is pregnant.” MCL 552.45; MCR
3.206(A)(5). Even if a party is not pregnant at the time
she files her complaint for divorce, she is obliged to
inform the trial court (in the divorce proceedings) of her
pregnancy once she becomes aware of it. See Allen, 341
Mich at 551. Further, a trial court, even in the context
of a default divorce proceeding, has a duty to make
findings of fact, see Koy v Koy, 274 Mich App 653, 660;
735 NW2d 665 (2007), as well as provide for the care and
14
Again, the concurrence premises its critique of the dissent on it
supposedly saying the opposite of what it actually says.
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support of the children of the marriage, Remus v Remus,
325 Mich 641, 643; 39 NW2d 211 (1949). To that end,
courts routinely inquire into whether a party to a divorce
is pregnant or has reason to believe she may be pregnant
at the time of a pro confesso hearing, in order to satisfy
these duties. See, e.g., Allen, 341 Mich at 551; Tyler, 348
Mich at 172; DeHaan v DeHaan, 348 Mich 199, 200; 82
NW2d 432 (1957); Dep’t of Social Servs v Carter, 201
Mich App 643, 644; 506 NW2d 603 (1993).
In this case, this Court has the benefit of neither
defendant’s complaint for divorce nor a record of the
proceedings before the trial court in the divorce action.
Presumably, given the routine nature of the inquiries at a
pro confesso hearing, the trial court made these inquiries
of defendant, prior to granting the divorce judgment,
including by inquiring into whether she was or may have
been pregnant as of the April 8, 2011 hearing date. Al-
though the record of that proceeding is not available to
this Court, existing evidence does reflect defendant’s
knowledge of her pregnancy within no more than three
days of her divorce judgment, and further suggests the
possibility of her knowledge of, or reason to suspect, her
pregnancy prior to the divorce judgment.
In my view, discovery as to defendant’s knowledge
and representations with regard to her pregnancy is
potentially relevant to the question of plaintiff’s stand-
ing. For example, if defendant did in fact allege or
represent to the trial court, prior to its grant of divorce,
that she was pregnant, then this case is even more
definitively analogous to the circumstances of Afshar
and its finding that “a divorce judgment that is specific
with regard to the question of custody and support of
one minor child of the marriage and that is silent with
regard to another child may... be deemed to have
determined the issue of paternity.” Afshar, 209 Mich
App at 91-92.
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Alternatively, in the event that discovery were to
reveal that defendant was not fully forthright in the
divorce proceedings with regard to her pregnancy or
possible pregnancy, then I believe that she should not be
rewarded by a finding that, as a consequence, plaintiff
lacks standing under the Paternity Act.
15
This does not
require a finding that plaintiff, as a third-party to the
divorce proceedings, has standing to challenge or to
seek a modification of the divorce decree.
16
Rather, a
lack of candor to the tribunal should serve to estop
defendant from denying the accuracy of her represen-
tations to the trial court in the divorce proceedings.
Under those circumstances, if shown, a representation
that she was not pregnant thus may also essentially
equate to the stipulation in Afshar, thereby deeming
the divorce judgment to be a finding that the unborn
child was not the issue of the marriage, and further
supporting a finding that plaintiff has standing under
the Paternity Act.
I therefore would further afford plaintiff a right of
discovery into those issues relating to the divorce pro-
15
Our courts have set aside divorce judgments in the past because of
fraud perpetrated on the court. See Allen, 341 Mich at 551; DeHaan, 348
Mich at 200; Tyler, 348 Mich at 172. Others faced with a lack of candor
have relied on the doctrines of estoppel and unclean hands. See Sands v
Sands, 192 Mich App 698, 704; 482 NW2d 203 (1992), aff’d, 442 Mich 30
(1993). Although the majority finds Allen and DeHaan to be “inapplicable
on this issue” because of “substantial changes in divorce law since the
1950s,” the majority does not identify those changes, or why those
changes render the cases inapplicable. But in any event, plaintiff’s
standing under the Paternity Act does not require that the Bickles’
second divorce judgment be set aside or modified. It need only be
interpreted, according to its plain language, as identifying only three
particular children (not including the unborn child at issue) as “the”
children of the marriage.
16
Again, the concurrence wrongly attacks the dissent for purportedly
affording plaintiff standing to “challenge the validity of the Bickles’
earlier divorce.” The dissent, of course, does nothing of the kind.
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ICKLE
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ceeding, as they further may bear on the issue of
plaintiff’s standing, under the unique circumstances of
this case and the Paternity Act. I reiterate, however,
that if the evidence demonstrates that Mr. Bickle was
incapable of procreation at the time of conception, and
that defendant and Mr. Bickle had reason to know of his
incapability at the time of the divorce, then I would find
that evidence sufficient, without regard to whether
defendant knew of or suspected her pregnancy as of the
date of the divorce judgment, to deem the divorce
judgment to have affirmatively found that the minor
child in question was not the issue of the marriage, and
thus to afford plaintiff standing.
17
VI. CONCLUSION
The confluence of the above-discussed factors leads
me to conclude that plaintiff likely has standing under
the Paternity Act, and that he should be allowed to
demonstrate his standing in further trial court proceed-
ings on remand. Specifically, he should be allowed
discovery and the opportunity to present proofs at a
Serafin hearing relative to Mr. Bickle’s incapability of
procreation at the time of conception, as to defendant’s
and Mr. Bickle’s knowledge of that incapability, and as
to the divorce proceedings and the representations of
defendant and Mr. Bickle relative to defendant’s preg-
nancy or reason to suspect pregnancy at the time of the
divorce. I further would afford to plaintiff, particularly
17
The concurrence attacks the dissent for providing “no details con-
cerning the appropriate scope of discovery,” and rolls out a parade of the
horribles that the concurrence postulates will occur if any discovery is
allowed. Of course, the concurrence not only ignores the parameters that
the dissent in fact has placed on the discovery that it would allow, but it
further ignores the existence of an elaborate set of court rules controlling
the conduct of discovery, and the trial court’s authority to exercise its
discretion in applying and enforcing those rules.
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in light of Mr. Bickle’s likely incapability of procreation,
an opportunity for appropriate testing to determine the
actual paternity of the child.
If after such discovery the evidence demonstrates
that Mr. Bickle could not have fathered the child in
question or that defendant was less than fully forth-
right with the trial court in the divorce proceeding
relative to her pregnancy or possible pregnancy, then I
would find that plaintiff has standing under the Pater-
nity Act, and that his claim should be allowed to
proceed.
18
I therefore respectfully dissent, and would reverse
and remand for further proceedings consistent with the
reasoning expressed above.
18
The concurrence finds it “chilling” that the dissent would open the
door to judicial “disrupt[ion of] this family,” including by “ultimately
removing the child from his home.” To the contrary, the dissent would
merely afford plaintiff the opportunity to demonstrate his standing to
pursue what his complaint seeks: parenting time and a child support
determination.
2013] S
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ICKLE
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,J.
PEOPLE v JONES
Docket No. 312966. Submitted June 5, 2013, at Detroit. Decided
September 10, 2013, at 9:05 a.m. Leave to appeal granted, 495
Mich ___.
Thabo Jones was charged in the 36th District Court with reckless
driving causing death in violation of MCL 257.626(4). The court,
Cylenthia L. Miller, J., bound defendant over to the Wayne Circuit
Court following a preliminary examination. In a prosecution under
MCL 257.626(4), MCL 257.626(5) prohibits the court from in-
structing the jury on the lesser included offense of moving viola-
tion causing death, MCL 257.601d. In a pretrial motion, defendant
requested that the circuit court instruct the jury on the lesser
included offense despite the statutory prohibition. The circuit
court, Richard M. Skutt, J., granted the motion, concluding that
the statutory prohibition unconstitutionally infringed on the judi-
cial power to determine court practice and procedure. The pros-
ecution appealed by leave granted.
The Court of Appeals held:
1. Generally, under MCL 768.32(1), upon indictment for an
offense consisting of different degrees, the jury, or the judge in a
trial without a jury, may find the accused not guilty of the offense
in the degree charged in the indictment and may find the accused
person guilty of a degree of that offense inferior to that charged in
the indictment, or of an attempt to commit that offense. The
statutory language concerning inferior offenses refers to any
offense contained within the charged offense, not just offenses
within which the Legislature has formally created degrees. The
offense of moving violation causing death is a necessarily included
lesser offense of reckless driving causing death. The Legislature
may, within constitutional limits, alter the definition of a crime so
that it ceases to be a necessarily included lesser offense of another,
but the Legislature has not altered the fact that moving violation
causing death is a necessarily included lesser offense of reckless
driving causing death. Under Const 1963, art 6, § 5, the Supreme
Court has exclusive rule-making authority in matters of practice
and procedure. Under MCL 768.29 and MCR 2.513(A) and (N), the
courts are to instruct the jury on the law. Correctly instructing the
jury is a fundamental requirement of the fair and proper admin-
434 302 M
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434 [Sept
istration of justice. The Legislature’s role is only to create the
substantive law. If a necessarily included lesser offense exists, it is
a violation of the principle of separation of powers for the Legis-
lature to forbid the courts to instruct the jury on that lesser
offense. A trial court’s duty is to instruct the trier of fact with
regard to what the law actually is, and the law is that moving
violation causing death is a necessarily included lesser offense of
reckless driving causing death. Accordingly, MCL 257.626(5) is an
unconstitutional infringement on the exclusive role of the judi-
ciary to establish procedures to vindicate constitutional rights, as
well as an infringement on the fundamental right of criminal
defendants to a properly instructed jury.
2. MCL 257.626(5) is also infirm because it violates the right to
trial by jury in that a criminal defendant charged with reckless
driving causing death must give up his or her right to a jury in
order for the fact-finder to consider the lesser included offense of
moving violation causing death. The plain text of MCL 257.626(5)
does not state that a trial court sitting as the finder of fact may not
consider the offense of moving violation causing death, nor that it
may not convict a defendant of this lesser included offense. Had
the Legislature wished to limit the court in this fashion it could
readily have included language to that effect. Significantly, under
MCL 763.3 and MCR 6.401, a defendant has no right to a bench
trial unless the prosecution and the judge agree. Therefore, the
statute places defendants in the position of having to trade one
right for another without even the ability to make an autonomous
choice, and it presents the prosecution with a potentially improper
basis for refusing to consent to a requested bench trial. MCL
257.626(5) is unconstitutional as a violation of fundamental due
process and the principle of separation of powers.
Affirmed.
K. F. K
ELLY
,P.J., dissenting, would have reversed because the
trial court’s ruling violated MCL 257.626(5), and the statutory
mandate neither deprived defendant of the right to a jury deter-
mination of all the elements of the crime charged nor violated the
principle of separation of powers. MCL 257.626(5) is within the
substantive power of the Legislature because it reflects the Legis-
lature’s policy decision that, in certain cases, the jury should not
be instructed on certain offenses; it does not concern practice and
procedure. Further, the majority’s conclusion that the statute
allows a judge in a bench trial to find a defendant guilty of a lesser
included offense when a jury could not, is contrary to the principle
that trial courts are presumed to know the law. Given the clear
intent of the Legislature to forbid consideration of the lesser
2013] P
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misdemeanor offense of moving violation causing death when a
defendant has been charged with reckless driving causing death, a
judge trying a case without a jury would understand that he or she
could not convict the defendant of the lesser offense.
C
RIMINAL
L
AW —
R
ECKLESS
D
RIVING
C
AUSING
D
EATH —
J
URY
I
NSTRUCTIONS —
N
ECESSARILY
I
NCLUDED
L
ESSER
O
FFENSES —
S
EPARATION OF
P
OWERS
.
In a prosecution for reckless driving causing death, MCL 257.626(5)
prohibits the court from instructing the jury on the lesser included
offense of moving violation causing death; MCL 257.626(5) is an
unconstitutional infringement on the exclusive role of the judi-
ciary to establish procedures to vindicate constitutional rights, as
well as an infringement on the fundamental right of criminal
defendants to a properly instructed jury; if a necessarily included
lesser offense exists, it is a violation of the principle of separation
of powers for the Legislature to forbid the courts to instruct the
jury on that lesser offense (Const 1963, art 6, § 5; MCL 257.601d;
MCL 257.626; MCL 768.32).
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Kym Worthy, Prosecuting Attorney,
and Timothy A. Baughman, Chief of Research, Train-
ing, and Appeals, for the people.
James C. Howarth for defendant.
Before: K. F. K
ELLY
,P.J., and S
HAPIRO
and R
ONAYNE
K
RAUSE
,JJ.
R
ONAYNE
K
RAUSE
, J. In this prosecution for reckless
driving causing death, MCL 257.626(4), the prosecution
appeals by leave granted the trial court’s order granting
defendant’s motion to instruct the jury on the lesser
included offense of moving violation causing death, MCL
257.601d, contrary to the prohibition against doing so
under MCL 257.626(5). The case arises from a three-
vehicle collision in which defendant struck another ve-
hicle, causing the second vehicle to strike a third, killing
the driver of the second vehicle. MCL 257.626(5) states
that “[i]n a prosecution under [MCL 257.622(4) for reck-
436 302 M
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less driving causing death], the jury shall not be instructed
regarding the crime of moving violation causing death
[under MCL 257.601d].” The trial court determined that
this statutory prohibition unconstitutionally infringed on
the judicial power to determine court practice and proce-
dure. As a constitutional question, we review the matter
de novo. People v Benton, 294 Mich App 191, 203; 817
NW2d 599 (2011). Because MCL 257.626(5) is unconsti-
tutional, we affirm.
“It is a general rule of criminal law, that a jury may
acquit of the principal charge, and find the prisoner
guilty of an offense of lesser grade, if contained within
it.” People v McDonald, 9 Mich 150, 153 (1861). Many
crimes, today and at common law, consist of several
“concentric layers” of crimes, each of which is in fact
another crime with an element added or subtracted; the
“rejecting of successive aggravations is a function open
to juries in all cases where there is presented to them
one offense in which another is inclosed” and “[n]o
question has ever been made as to this right on the part
of the jury....” 1 Wharton, A Treatise on Criminal
Law (10th ed), § 27, pp 34-35. See also Hanna v The
People, 19 Mich 316, 318 (1869). Michigan codified this
principle by statute as early as 1846 in 1846 RS, ch 161,
§ 16, which provided that
[u]pon an indictment for any offence, consisting of differ-
ent degrees, as prescribed in this title, the jury may find the
accused not guilty of the offence in the degree charged in
the indictment, and may find such accused person guilty of
any degree of such offence, inferior to that charged in the
indictment, or of an attempt to commit such offence.
Our Supreme Court recognized that, at the time, the
only crime formally divided into degrees was murder,
for which no such provision was needed; consequently,
the provision must “be construed as extending to all
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cases in which the statute has substantially, or in
effect, recognized and provided for the punishment of
offenses of different grades, or degrees of enormity,
wherever the charge for the higher grade includes a
charge for the less.” Hanna, 19 Mich at 321-322. Our
Supreme Court eventually concluded that this prin-
ciple from Hanna had become inappropriately ex-
trapolated to include cognate offenses, not only nec-
essarily included offenses. See People v Nyx, 479 Mich
112, 118-121; 734 NW2d 548 (2007). However, Nyx
affirmed the Hanna conclusion that the statutory
language concerning inferior offenses referred to any
offense contained within the charged offense, not just
offenses within which the Legislature has formally
created degrees. Nyx, 479 Mich at 127-129.
Today, MCL 768.32 provides essentially the same
rule, with the addition of one enumerated exception,
contained in MCL 768.32(2), and an explicit provision
for the judge at a bench trial to make the same finding.
We find it unambiguous that MCL 768.32(1) embodies a
venerable and important rule of common law; conse-
quently, the Legislature is strongly presumed not to
have intended any alteration to the common law by
enacting it. See Bandfield v Bandfield, 117 Mich 80, 82;
75 NW 287 (1898), overruled in part on other grounds
in Hosko v Hosko, 385 Mich 39; 187 NW2d 236 (1971).
Of course, the Legislature can abrogate the common
law, but “[w]hen it does so, it should speak in no
uncertain terms.” Hoerstman Gen Contracting, Inc v
Hahn, 474 Mich 66, 74; 711 NW2d 340 (2006).
In an earlier case, this Court determined that the
previously noted exception contained in MCL 768.32(2),
pertaining to certain drug offenses, is unconstitutional.
People v Binder (On Remand), 215 Mich App 30, 38-42;
544 NW2d 714 (1996). While that conclusion has never
438 302 M
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been overturned on any substantive basis, our Supreme
Court subsequently vacated that portion of this Court’s
opinion as having been unnecessary to the resolution of
the case. People v Binder, 453 Mich 915; 554 NW2d 906
(1996). No binding caselaw presently establishes
whether MCL 768.32(2) is or is not constitutional.
1
Furthermore, no binding caselaw addresses whether, or
to what extent, the Legislature could abrogate the
longstanding rule that the trier of fact may find a
defendant not guilty of a charged offense in lieu of
finding the defendant guilty of a necessarily included
lesser offense.
It is axiomatic that the Legislature may establish the
elements of a given crime. People v Calloway, 469 Mich
448, 450-451; 671 NW2d 733 (2003). The Legislature
may, within constitutional limits, therefore, alter the
definition of a crime so that it becomes or ceases to be a
necessarily included lesser offense of another. There is
no dispute before us that moving violation causing
death is, by definition, a necessarily included lesser
offense of reckless driving causing death; indeed, the
prosecution explicitly so agreed at oral argument. The
only distinction between the two crimes is that reckless
driving causing death requires the motor vehicle to be
operated “in willful or wanton disregard for the safety
of persons or property....”MCL257.626(2). The Leg-
islature could have defined a moving violation causing
death in such a way that it included an element not
present in reckless driving causing death, with the
result that the two would be cognate offenses. However,
the Legislature did not do so.
1
We respectfully reject the dissent’s assertion that we rely on Binder.
We discuss Binder only to explain that it is not binding and therefore has
no applicability. Because the parties discussed it, however, we believe we
would have been remiss had we failed to address Binder at all.
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Rather, the Legislature provided that “[i]n a prosecu-
tion under [MCL 257.626(4) for reckless driving causing
death], the jury shall not be instructed regarding the
crime of moving violation causing death [under MCL
257.601d].” MCL 257.626(5). Significantly, this provi-
sion (1) does not change the fact that, by definition,
moving violation causing death remains a necessarily
included lesser offense of reckless driving causing
death, (2) does not impose any restrictions on the trial
court sitting as the trier of fact at a bench trial, and (3)
does not even preclude the jury from finding a defen-
dant guilty of the lesser offense.
Pursuant to Const 1963, art 6, § 5, “[t]he supreme
court shall by general rules establish, modify, amend
and simplify the practice and procedure in all courts of
this state.” While not present in Michigan’s first con-
stitution of 1835, an essentially identical provision is
found in all of Michigan’s constitutions since 1850. See
McDougall v Schanz, 461 Mich 15, 26 n 10; 597 NW2d
148 (1999). The courts therefore may “prescribe proce-
dural rules that vindicate constitutional rights,” but
may not promulgate “procedural rules contrary to leg-
islative enactments that involve nonconstitutional sub-
stantive policies.” People v Glass (After Remand), 464
Mich 266, 281 n 11; 627 NW2d 261 (2001). Conse-
quently, our Supreme Court has “exclusive rule-making
authority in matters of practice and procedure,” but
may not “enact court rules that establish, abrogate, or
modify the substantive law.” McDougall, 461 Mich at
26-27.
In People v Cornell, 466 Mich 335, 353-354; 646
NW2d 127 (2002), our Supreme Court held that only
necessarily included lesser offenses could be considered
by the fact-finder and observed that this rule extended
to misdemeanor offenses. Courts are not free to expand
440 302 M
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upon what crimes may be considered by the trier of fact
to include what are, essentially, uncharged offenses.
Cornell therefore stands for the conclusion that the
Legislature sets the substantive law. Id. at 353. As
noted, the Legislature can therefore define what consti-
tutes a given offense. Pursuant to the definitions it
crafts, some of those offenses may constitute necessar-
ily included lesser offenses of other offenses. However,
the Legislature is not free to dictate that the courts give
instructions to the jury that conflict with substantive
law. The courts are to instruct the jury on the law; this
is established by statute, MCL 768.29, but also by court
rule, MCR 2.513(A) and (N), and, importantly, by the
simple fact that a jury not properly informed of the law
cannot fulfill its duty. See, e.g., People v Potter, 5 Mich 1,
8-9 (1858); People v Duncan, 462 Mich 47, 52-53; 610
NW2d 551 (2000).
2
Correctly instructing the jury, there-
fore, arguably involves more than mere “substantive
law;” it is in fact a fundamental requirement of the fair
and proper administration of justice. See People v
Murray, 72 Mich 10, 16; 40 NW 29 (1888); People v
Townes, 391 Mich 578, 587; 218 NW2d 136 (1974).
It is the role of the courts to effectuate the right to a
properly instructed jury; it is not the role of the Legis-
lature to dictate to the courts the details of how to do so.
Indeed, in Cornell our Supreme Court quoted, seem-
ingly with approval, Justice L
INDEMER
’s dissent in
People v Chamblis, 395 Mich 408; 236 NW2d 473
(1975),
3
in which he explicitly noted that MCL 768.32
“ ‘does not speak to instructions on lesser included
offenses,’ ” and that although MCL 768.29 “ ‘says that
2
Binder, 215 Mich App at 40, and Duncan, 462 Mich at 49 n 3, both
refer to MCR 6.414(F), the predecessor rule concerning jury instructions,
which was repealed and incorporated into MCR 2.513 in 2011.
3
Chamblis, 395 Mich 408, was overruled in Cornell, 466 Mich 335.
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the court shall instruct the jury as to the law applicable
to the case, [it] does not mandate what law is applicable
to the case.’ ” Cornell, 466 Mich at 349, quoting Cham-
blis, 395 Mich at 433 (L
INDEMER
, J., dissenting). Trial
judges are, to the contrary, permitted to instruct the
jury however they believe best, as long as they accu-
rately convey to the jury the material substance of the
law applicable to the case. This supports our view that
it is the Supreme Court that determines the practice
and procedure to be followed by the courts in effectu-
ating the law. If anything, Cornell supports our conclu-
sion that determining what instructions should be
given to the jury is exclusively the judiciary’s role. See
People v Knoll, 258 Mich 89, 101; 242 NW 222 (1932).
The Legislature’s role is only to create the law.
Consequently, if a necessarily included lesser offense
exists, it is a violation of the principle of separation of
powers for the Legislature to forbid the courts to
instruct the jury on that lesser offense. A trial court’s
duty is to instruct the trier of fact regarding what the
law actually is, and the law actually is that moving
violation causing death is a necessarily included lesser
offense of reckless driving causing death.
Even if the statute was not invalid as a violation of
the constitutional separation of powers, we would have
to strike it down as a violation of the right to trial by
jury. As discussed earlier in this opinion, MCL
257.626(5) does not state what is or is not a lesser
included offense of reckless driving causing death. It
merely states that “[i]n a prosecution under [MCL
257.626(4) for reckless driving causing death], the jury
shall not be instructed regarding the crime of moving
violation causing death [under MCL 257.601d].” MCL
257.626(5). The plain text of the statute does not state
that a trial court sitting as the finder of fact may not
442 302 M
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consider the offense of moving violation causing death
nor that it may not convict a defendant of this lesser
included offense. Had the legislature wished to limit the
judge in this fashion it could readily have included
explicit language to that effect. Our Legislature is
presumed to be aware of the consequences of its use or
omission of statutory language as well as its effect on
existing laws. In re MKK, 286 Mich App 546, 556-557;
781 NW2d 132 (2009). See also, Carson City Hosp v
Dep’t of Community Health, 253 Mich App 444, 447-
448; 656 NW2d 366 (2002) (“When the Legislature
enacts laws, it is presumed to know the rules of statu-
tory construction and therefore its use or omission of
language is generally presumed to be intentional.”).
4
The limitation in MCL 257.626(5) is not a statement
of substantive law. Instead, MCL 257.626(5) is an
infringement on the exclusive role of the judiciary to
establish procedures to vindicate constitutional rights,
as well as an infringement on the fundamental right of
criminal defendants to a properly instructed jury. MCL
257.626(5) is also infirm in that, under the statute, a
criminal defendant must give up his or her right to a
jury in order for the fact-finder to consider the lesser
included offense. Significantly, a defendant has no right
to a bench trial unless the prosecution and the judge
agree. MCL 763.3; MCR 6.401. Therefore, the statute
places defendants in the position of having to trade one
right for another without even the ability to make an
autonomous choice, and it presents the prosecution
4
The dissent suggests that we should ignore the plain language of the
statute. It states that “the clear intent of the Legislature” would bar a
judge from considering the lesser included offense of moving violation
causing death. The dissent does not explain, however, what wording in
the statute sets out this intent. Rather, the dissent seeks to impose what
it views as a reasonable reading of the statute onto words that do not
actually so read.
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with a potentially improper basis for refusing to con-
sent to a requested bench trial.
We conclude that MCL 257.626(5) is unconstitutional
as a violation of fundamental due process and as a
violation of the principle of separation of powers. Af-
firmed.
S
HAPIRO
, J., concurred with R
ONAYNE
K
RAUSE
,J.
K. F. K
ELLY
(dissenting). I respectfully dissent. MCL
257.626(4) provides that “a person who operates a
vehicle in violation of subsection (2) [in willful or
wanton disregard for the safety of persons or property]
and by the operation of that vehicle causes the death of
another person is guilty of a felony....” MCL
257.626(5) further provides that “[i]n a prosecution
under subsection (4), the jury shall not be instructed
regarding the crime of moving violation causing death.”
Because the trial court clearly violated the statutory
mandate of MCL 257.626(5) by granting defendant’s
motion to instruct the jury on the misdemeanor offense
of moving violation causing death, MCL 257.601d(1),
1
and because the statutory mandate neither deprives
defendant of the right to a jury determination of all of
the elements of the crime charged nor violates the
principle of separation of powers, I would reverse.
MCL 768.32(1) provides:
Except as provided in subsection (2), upon an indict-
ment for an offense, consisting of different degrees, as
prescribed in this chapter [MCL 768.1 through MCL
768.37], the jury, or the judge in a trial without a jury,
1
MCL 257.601d(1) provides that “A person who commits a moving
violation that causes the death of another person is guilty of a misde-
meanor punishable by imprisonment for not more than 1 year or a fine of
not more than $2,000.00, or both.”
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may find the accused not guilty of the offense in the
degree charged in the indictment and may find the
accused person guilty of a degree of that offense inferior
to that charged in the indictment, or of an attempt to
commit that offense.
In People v Cornell, 466 Mich 335, 356; 646 NW2d
127 (2002), our Supreme Court discussed the principles
supporting an instruction on lesser included offenses as
well as when a necessarily included offense instruction
should be given:
[I]n a case where some of the elements of the crime
charged themselves constitute a lesser crime, the defen-
dant, if the evidence justifie(s) it... (is) entitled to an
instruction which would permit a finding of guilt of the
lesser offense. But a lesser-offense charge is not proper
where, on the evidence presented, the factual issues to be
resolved by the jury are the same as to both the lesser and
the greater offenses. In other words, the lesser offense
must be included within but not, on the facts of the case, be
completely encompassed by the greater. A lesser-included
offense instruction is only proper where the charged
greater offense requires the jury to find a disputed factual
element which is not required for a conviction of the
lesser-included offense. [Quoting Sansone v United States,
380 US 343, 349-350; 85 S Ct 1004; 13 L Ed 2d 882 (1965)
(quotation marks omitted).]
The Cornell Court thus held that a court could properly
give an instruction on a necessarily included lesser
offense “if the charged greater offense requires the jury
to find a disputed factual element that is not part of the
lesser included offense and a rational view of the
evidence would support it. To permit otherwise would
be inconsistent with the truth-seeking function of a
trial....”Cornell, 466 Mich at 357.
Defendant argues that MCL 257.626(5) conflicts with
the holding in Cornell and unconstitutionally infringes
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on our Supreme Court’s rulemaking authority, violating
the separation of powers doctrine. I disagree.
“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 ex-
pressly provided in this constitution.” Const 1963, art 3,
§ 2. The Legislature has the power over matters of
substantive law. See People v Pattison, 276 Mich App
613, 619-620; 741 NW2d 558 (2007). While the Legisla-
ture has the sole power to define crimes and set
punishments, People v Calloway, 469 Mich 448, 451;
671 NW2d 733 (2003), the Supreme Court has the
power to establish practice and procedure, People v
Watkins, 491 Mich 450, 472; 818 NW2d 296 (2012).
Therefore, “the Legislature may not enact a rule that is
purely procedural, i.e., one that is not backed by any
clearly identifiable policy consideration other than the
administration of judicial functions.” Pattison, 276
Mich App at 619. In the course of deciding whether a
statutory rule of evidence violated the principle of
separation of powers, our Supreme Court held that the
Legislature infringes on the Supreme Court’s domain
only when no clear legislative policy reflecting consider-
ations other than judicial dispatch of litigation can be
identified....Therefore, [i]f a particular court rule con-
travenes a legislatively declared principle of public policy,
having as its basis something other than court administra-
tion...[,]the[court] rule should yield....
. . . [P]rocedural rules of evidence involving the orderly
dispatch of judicial business are those rules of evidence
designed to allow the adjudicatory process to function
effectively....Examples are rules of evidence designed to
let the jury have evidence free from the risks of irrelevancy,
confusion and fraud. [Watkins, 491 Mich at 474-475, quot-
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,J.
ing McDougall v Schanz, 461 Mich 15, 30-31; 597 NW2d
148 (1999) (quotation marks omitted) (first and third
alterations in original).]
Contrary to the majority’s conclusion, MCL 257.626(5)
is obviously not a matter of practice and procedure;
rather, § 626(5) is absolutely within the substantive
power of the Legislature.
Cornell clearly stated that MCL 768.32 is not con-
fined to practice and procedure, but is a matter of
substantive law:
As this Court has recognized, matters of substantive law
are left to the Legislature. Determining what charges a jury
may consider does not concern merely the “judicial dispatch
of litigation.” Rather, the statute concerns a matter of
substantive law. As this Court has noted,
[t]he measure of control exercised in connection with
the prevention and detection of crime and prosecu-
tion and punishment of criminals is set forth in the
statutes of the State pertaining thereto, particularly
the penal code and the code of criminal procedure.
The powers of the courts with reference to such
matters are derived from the statutes.
[Cornell, 466 Mich at 353 (emphasis added) (citations
and quotation marks omitted).]
Our Supreme Court has determined that MCL
768.32, involving the jury’s consideration of lesser in-
cluded offenses, is a matter of substantive law; it follows
that MCL 257.626(5) is also a matter of substantive law.
MCL 257.626(5) identifies two specific offenses, prohib-
iting a jury instruction on the less serious offense when
the more serious one has been charged. It reflects the
Legislature’s policy decision that, in certain cases, the
jury shall not be instructed on certain offenses. Conse-
quently, § 626(5) is within the Legislature’s power over
2013] P
EOPLE V
J
ONES
447
D
ISSENTING
O
PINION BY
K. F. K
ELLY
,J.
matters of substantive law and does not violate the
separation of powers doctrine.
I find unavailing the majority’s reliance on People v
Binder (On Remand), 215 Mich App 30; 544 NW2d 714
(1996). In Binder, the defendant was charged with
delivery of a controlled substance, and MCL 768.32(2)
specifically prohibited the trial court from instructing
the jury on mere possession. Id. at 32-33. The Court of
Appeals held that MCL 768.32(2) was contrary to the
constitutional doctrine of separation of powers. Id.at
41-42. Our Court stated that “once the Supreme Court
takes action on a matter relating to practice or proce-
dure, the Legislature is without authority to set other
requirements.” Id. at 40. Our Court concluded that the
Supreme Court demonstrated its intent to occupy the
domain of jury instructions by court rule and case law
and, therefore, MCL 768.32(2) was an impermissible
infringement on the Court’s rulemaking authority. Id.
at 40-42. However, our Supreme Court vacated
the portion of the judgment of the Court of Appeals that
held the lesser offense and jury instruction provisions of
MCL 768.32(2) unconstitutionally infringe on the Supreme
Court’s authority over practice and procedure,...because
it was unnecessary for the Court of Appeals to reach this
constitutional question after determining that the defen-
dant’s conviction would be affirmed in any event. [People v
Binder, 453 Mich 915; 554 NW2d 906 (1996) (citation
omitted).]
Because that portion of Binder was specifically vacated
by the Supreme Court, no binding authority supports
the majority’s conclusion. Statutes are presumed con-
stitutional, and courts must construe statutes as con-
stitutional unless the unconstitutionality of a statute is
clearly apparent. People v Dipiazza, 286 Mich App 137,
144; 778 NW2d 264 (2009). That a statute may appear
ill-advised does not make it unconstitutional and em-
448 302 M
ICH
A
PP
434 [Sept
D
ISSENTING
O
PINION BY
K. F. K
ELLY
,J.
power a court to override the Legislature. People v
Boomer, 250 Mich App 534, 538; 655 NW2d 255 (2002).
Finally, while the majority expresses concern that
MCL 257.626(5) effectively allows a judge, sitting with-
out a jury, to find a defendant guilty of a lesser included
offense, I believe that such an assumption is contrary to
the longstanding principle that “[i]n a bench trial, the
trial court is presumed to know the applicable law.”
People v Lanzo Constr Co, 272 Mich App 470, 484; 726
NW2d 746 (2006); see also People v Cazal, 412 Mich 680,
691 n 5; 316 NW2d 705 (1982) (stating that a trial court
is not required in a bench trial to give instructions in
open court on the law to be applied). Given the clear
intent of the Legislature to forbid consideration of the
lesser misdemeanor offense of moving violation causing
death when a defendant has been charged with reckless
driving causing death, a judge trying a case without a
jury would surely understand that he or she could not
convict the defendant of the lesser offense.
For these reasons, I would reverse.
2013] P
EOPLE V
J
ONES
449
D
ISSENTING
O
PINION BY
K. F. K
ELLY
,J.
PEOPLE v JOHNSON
PEOPLE v ANTHONY AGRO
PEOPLE v FLEISSNER
PEOPLE v BARBARA AGRO
PEOPLE v RICHMOND
PEOPLE v CURTIS
PEOPLE v NICHOLAS AGRO
Docket Nos. 308104, 308105, 308106, 308109, 308110, 308111, and 308113.
Submitted August 6, 2013, at Detroit. Decided September 10, 2013, at
9:10 a.m.
Barbara M. Johnson, Anthony J. Agro, Ryan M. Fleissner, Barbara J.
Agro, Ryan D. Richmond, Matthew Curtis, and Nicholas Agro were
charged in the Oakland Circuit Court with various counts of
delivering marijuana, delivering delta-9-tetrahydrocannabinol
(THC), conspiracy to possess marijuana or THC with intent to
deliver them, and conspiracy to deliver marijuana or THC, all
arising from the operation of a marijuana dispensary. The court,
Daniel Patrick O’Brien, J., granted defendants’ joint motion to
dismiss all charges in reliance on the Michigan Medical Marihuana
Act (MMMA), MCL 333.26421 et seq. The prosecution appealed.
The Court of Appeals held:
1. It is illegal under the Public Health Code, MCL 333.1101 et
seq., for a person to possess, use, manufacture, or deliver mari-
juana. The MMMA, however, provides in MCL 333.26427(a) that
the medical use of marijuana is allowed under state law to the
extent that it is carried out in accordance with the provisions of
the act. The MMMA sets forth in MCL 333.26424 and 333.26428
specific and limited protections from arrest, prosecution, or pen-
alty for certain marijuana-related activities. Defendants asserted
that their interpretation of the MMMA was reasonable and that, in
light of the ambiguous nature of the MMMA, they could not have
predicted that their operation of a marijuana dispensary was
illegal. Defendants, however, did not specifically argue that they
450 302 M
ICH
A
PP
450 [Sept
were entitled to the protections afforded under either MCL
333.26424 or MCL 333.26428 or in what capacity they acquired
those rights. Nor did they challenge as ambiguous any specific
portion of the MMMA or identify what particular MMMA provi-
sions purportedly led them to believe that they could operate a
for-profit marijuana dispensary. A remand for reinstatement of the
charges against all seven defendants was necessary.
2. The trial court erroneously held that the rule of lenity
applied under the circumstances of this case. The rule of lenity
provides that courts should mitigate punishment when the pun-
ishment in a criminal statute is unclear. It applies only if the
statute is ambiguous or in the absence of any firm indication of
legislative intent. The rule of lenity does not apply when constru-
ing the Public Health Code because the Legislature mandated in
MCL 333.1111(2) that the code’s provisions must be liberally
construed for the protection of the health, safety, and welfare of
the people of Michigan. Nevertheless, defendants argued that the
rule of lenity should be applied because they were denied due
process and notice that operation of a marijuana dispensary was
prohibited. The MMMA, however, does not include any provision
that authorizes marijuana dispensaries or from which it could
reasonably be inferred that marijuana dispensaries are legal
business entities.
3. The trial court also erred by failing to give retroactive effect
to Michigan v McQueen, 293 Mich App 644 (2011), aff’d on other
grounds 493 Mich 135 (2013), which held that the MMMA provides
no authority for operating a marijuana dispensary that facilitates
patient-to-patient sales of marijuana and was decided after defen-
dants’ arrests. The general rule is that judicial decisions are given
full retroactive effect and complete prospective application is
limited to decisions that overrule clear and uncontradicted case-
law, but the retroactive application of an unforeseeable interpre-
tation of a criminal statute, if detrimental to a defendant, may
violate the Due Process Clause. Due process is violated when the
retroactive application of a judicial decision operates as an ex post
facto law, i.e., criminalizes conduct that was innocent at the time
performed. Defendants, however, were not charged with violating
any penalty provision of the MMMA; rather, their charges arose
from violations of various controlled substance provisions of the
Public Health Code. Because defendants alleged that they are
entitled to immunity under MCL 333.26424, the retroactive appli-
cation of McQueen did not present a due process concern because
McQueen did not operate as an ex post facto law, nor did McQueen
or the Supreme Court’s subsequent affirmance of it have the effect
2013] P
EOPLE V
J
OHNSON
451
of criminalizing previously innocent conduct. McQueen did not
overrule clear and uncontradicted caselaw. Moreover, because
defendants did not identify any ambiguous provision of the
MMMA that could reasonably have led them to believe that
operating a marijuana dispensary was permitted under the
MMMA, they failed to establish that the interpretation of the
MMMA in McQueen was unforeseeable. McQueen and the Su-
preme Court’s subsequent affirmation of it were entitled to
retroactive application.
Reversed and remanded for reinstatement of the charges
against defendants.
1. C
RIMINAL
L
AW —
R
ULE OF
L
ENITY —
P
UBLIC
H
EALTH
C
ODE
V
IOLATIONS —
C
ONTROLLED
S
UBSTANCES
.
The rule of lenity provides that courts should mitigate punishment
when the punishment in a criminal statute is unclear; the rule
applies only if the statute is ambiguous or in the absence of any
firm indication of legislative intent; the rule does not apply when
construing the criminal provisions of the Public Health Code, MCL
333.1101 et seq., because the Legislature mandated in MCL
333.1111(2) that the code’s provisions must be liberally construed
for the protection of the health, safety, and welfare of the people of
Michigan
2. C
OURTS —
A
PPEALS —
O
PINIONS —
R
ETROACTIVE
E
FFECT —
M
ICHIGAN
M
EDICAL
M
ARIHUANA
A
CT —
D
ISPENSARIES
.
Michigan v McQueen, 293 Mich App 644 (2011), and the Supreme
Court opinion that affirmed it on other grounds, Michigan v
McQueen, 493 Mich 135 (2013), which held that the Michigan
Medical Marihuana Act, MCL 333.26421 et seq., provides no
authority for operating a marijuana dispensary that facilitates
patient-to-patient sales of marijuana, apply retroactively.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Jessica R. Cooper, Prosecuting Attor-
ney, Thomas R. Grden, Chief, Appellate Division, and
Danielle Walton, Assistant Prosecuting Attorney, for
the people.
Stuart G. Friedman for Barbara M. Johnson, Ryan
M. Fleissner, Barbara J. Agro, Ryan D. Richmond,
Matthew Curtis, and Nicholas Agro.
452 302 M
ICH
A
PP
450 [Sept
Before: S
ERVITTO
,P.J., and C
AVANAGH
and W
ILDER
,JJ.
P
ER
C
URIAM
. These consolidated cases arose from the
operation of a marijuana dispensary. Defendants Barbara
Johnson and Ryan Fleissner were charged with con-
spiracy to possess marijuana with intent to deliver or
conspiracy to deliver marijuana, MCL 333.7401(2)(d)(iii)
and MCL 750.157a, conspiracy to possess the controlled
substance delta-9-tetrahydrocannabinol (THC) with in-
tent to deliver or conspiracy to deliver THC, MCL
333.7401(2)(b)(ii) and MCL 750.157a, two counts of deliv-
ery of marijuana, MCL 333.7401(2)(d)(iii), and delivery of
THC, MCL 333.7401(2)(b)(ii). Defendant Anthony Agro
was charged with conspiracy to possess marijuana with
intent to deliver or conspiracy to deliver marijuana, con-
spiracy to possess THC with intent to deliver or con-
spiracy to deliver THC, seven counts of delivery of mari-
juana, and delivery of THC. Defendant Barbara Agro was
charged with conspiracy to possess marijuana with intent
to deliver or conspiracy to deliver marijuana and delivery
of marijuana. Defendants Ryan Richmond and Nicholas
Agro were charged with conspiracy to possess marijuana
with intent to deliver or conspiracy to deliver marijuana
and conspiracy to possess THC with intent to deliver or
conspiracy to deliver THC. Defendant Matthew Curtis
was charged with conspiracy to possess marijuana with
intent to deliver or conspiracy to deliver marijuana,
conspiracy to possess THC with intent to deliver or
conspiracy to deliver THC, and two counts of delivery of
marijuana. The trial court granted defendants’ joint
motion to dismiss all charges pursuant to the Michigan
MedicalMarihuanaAct(MMMA),
1
MCL333.26421etseq.
1
Although the MMMA refers to “marihuana,” by convention this
Court uses the more common spelling “marijuana” in its opinions. See
People v Nicholson, 297 Mich App 191, 193 n 1; 822 NW2d 284 (2012).
2013] P
EOPLE V
J
OHNSON
453
The prosecution appeals as of right. We reverse and
remand for reinstatement of the charges.
In July and August 2010, these seven defendants
owned, operated, or were employed by Clinical Relief, a
marijuana dispensary in Ferndale, Michigan. Clinical
Relief provided marijuana to patients who possessed
medical-marijuana cards. On several different days,
Narcotic Enforcement Team (NET) undercover officers
visited the facility and were sold marijuana and candy
containing THC. Subsequently, each defendant was
arrested and bound over for trial on the charges.
Defendants then filed a joint motion to dismiss in the
circuit court. In the motion, they argued that “[a]t the
time of their arrest their conduct was reasonable and
should not be subject to criminal prosecution.” Defen-
dants argued that their “conduct was based on a rea-
sonable understanding of the law and that they are
entitled to dismissal as a matter of law....” They
pointed out that the first judicial decision interpreting
the MMMA was not released until after they were
arrested; thus, defendants did not have the benefit of
these interpretative decisions to guide their conduct
with respect to the MMMA. Defendants also argued
that “[t]he notion of due process and advanced notice of
the conduct being prohibited is being tossed out of the
window.” And because the MMMA is ambiguous, defen-
dants could have not been expected to predict that their
conduct was illegal. Further, they argued, in light of the
ambiguous nature of the MMMA, this Court’s holding
in Michigan v McQueen, 293 Mich App 644; 811 NW2d
513 (2011), aff’d on other grounds 493 Mich 135 (2013),
which interpreted it, should be applied prospectively.
That is, retroactive application of this decision inter-
preting the MMMA would violate their due process
rights to understand what conduct is prohibited. The
prosecutor opposed defendants’ motion.
454 302 M
ICH
A
PP
450 [Sept
Following oral arguments, the trial court granted
defendants’ motion. In rendering its decision, the trial
court noted that it was not giving retroactive effect to
the holding in McQueen, 293 Mich App 644. The trial
court also noted that it had requested defendants to
specify which provisions of the MMMA were being
challenged as ambiguous, and those provisions were
MCL 333.26424(b), (e), and (i). Section 4(b) of the
MMMA provides, in pertinent part, that a “primary
caregiver who has been issued and possesses a registry
identification card shall not be subject to arrest, pros-
ecution, or penalty...forassisting a qualifying patient
to whom he or she is connected through the [Depart-
ment of Licensing and Regulatory Affairs’] registration
process with the medical use of marihuana in accor-
dance with this act.” MCL 333.26424(b).
2
The trial
court held that this provision “requires a link between
the caregiver and the patient.” Section 4(e) of the
MMMA provides that a “registered primary caregiver
may receive compensation for costs associated with
assisting a registered qualifying patient in the medical
use of marijuana.” MCL 333.26424(e). The trial court
held that the phrase “receive compensation for costs”
was confusing, but rejected defendants’ claim that it
was ambiguous on the ground that “compensation for
costs” does not include profit, i.e., “[c]ost is different
and distinct from profit.” Section 4(i) of the MMMA
provides that a “person shall not be subject to arrest,
prosecution, or penalty...solely for being in the pres-
ence or vicinity of the medical use of marihuana in
accordance with this act, or for assisting a registered
qualifying patient with using or administering mari-
huana.” MCL 333.26424(i). The trial court held that “(i)
2
We quote the version of the statute as amended by 2012 PA 512,
effective April 1, 2013. The differences from the original version do not
affect our holding.
2013] P
EOPLE V
J
OHNSON
455
juxtaposed with either or both (b) or (e) is ambigu-
ous....”Inparticular, the court held that the phrase
“using or administering” was ambiguous. After indicat-
ing that due process ramifications exist in criminal
cases, the trial court held that the rule of lenity should
be applied under the circumstances of this case. Accord-
ingly, it granted defendants’ motion to dismiss. These
appeals followed.
The prosecution first argues that the trial court
erroneously dismissed the charges against all seven
defendants without requiring defendants to first dem-
onstrate that they were entitled to the protections
afforded under the MMMA. We agree.
We review for an abuse of discretion a trial court’s
ruling on a motion to dismiss. People v Bylsma, 493
Mich 17, 26; 825 NW2d 543 (2012). However, underly-
ing questions of statutory interpretation are reviewed
de novo as questions of law. Id.
It is illegal under the Public Health Code, MCL
333.1101 et seq., for a person to possess, use, manufac-
ture, or deliver marijuana. The MMMA was proposed by
initiative petition, was subsequently approved by the
electors, and became effective December 4, 2008. This
change in our state law was to have “the practical effect
of protecting from arrest the vast majority of seriously
ill people who have a medical need to use marihuana.”
MCL 333.26422(b). Accordingly, pursuant to MCL
333.26427(a), the “medical use of marihuana is allowed
under state law to the extent that it is carried out in
accordance with the provisions of this act.” The “medi-
cal use” of marijuana is defined by MCL 333.26423(f) as
“the acquisition, possession, cultivation, manufacture,
use, internal possession, delivery, transfer, or transpor-
tation of marihuana or paraphernalia relating to the
administration of marihuana to treat or alleviate a
456 302 M
ICH
A
PP
450 [Sept
registered qualifying patient’s debilitating medical con-
dition or symptoms associated with the debilitating
medical condition.”
3
In light of the fact that possession, use, manufacture,
and delivery of marijuana remain punishable offenses
under the Public Health Code, the MMMA set forth
specific and limited protections from arrest, prosecu-
tion, or penalty for marijuana-related activities. In
particular, at the time of defendants’ arrests, MCL
333.26424 as originally enacted provided:
(a) A qualifying patient who has been issued and pos-
sesses a registry identification card shall not be subject to
arrest, prosecution, or penalty in any manner...forthe
medical use of marihuana in accordance with this act,
provided that the qualifying patient possesses an amount
of marihuana that does not exceed 2.5 ounces of usable
marihuana, and, if the qualifying patient has not specified
that a primary caregiver will be allowed under state law to
cultivate marihuana for the qualifying patient, 12 mari-
huana plants kept in an enclosed, locked facility....
[
4
]
(b) A primary caregiver who has been issued and pos-
sesses a registry identification card shall not be subject to
arrest, prosecution, or penalty in any manner... for as-
sisting 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
3
Before the amendments set forth in 2012 PA 512, this definition was
found in MCL 333.26423(e).
4
An “enclosed, locked facility” includes a locked room that permits
“access only by a registered primary caregiver or registered qualifying
patient.” MCL 333.26423(d), as amended by 2012 PA 512.
2013] P
EOPLE V
J
OHNSON
457
(2) for each registered qualifying patient who has speci-
fied that the primary caregiver will be allowed under state
law to cultivate marihuana for the qualifying patient, 12
marihuana plants kept in an enclosed, locked facility; and
(3) any incidental amount of seeds, stalks, and unusable
roots.
***
(d) 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.
(e) A registered primary caregiver may receive compen-
sation for costs associated with assisting a registered
qualifying patient in the medical use of marihuana. Any
such compensation shall not constitute the sale of con-
trolled substances.
***
(i) A person shall not be subject to 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 administering marihuana.
The second protection afforded under the MMMA is set
forth in MCL 333.26428, which as originally enacted
provided, in relevant part:
458 302 M
ICH
A
PP
450 [Sept
(a) Except as provided in [MCL 333.26427], a patient
and a patient’s primary caregiver, if any, may assert the
medical purpose for using marihuana as a defense to any
prosecution involving marihuana, and this defense shall be
presumed valid where the evidence shows that:
(1) A physician has stated that...thepatient is likely to
receive therapeutic or palliative benefit from the medical
use of marihuana...;
(2) The patient and the patient’s primary caregiver, if
any, were collectively in possession of a quantity of mari-
huana that was not more than was reasonably necessary to
ensure the uninterrupted availability of marihuana for the
purpose of treating or alleviating the patient’s serious or
debilitating medical condition or symptoms of the patient’s
serious or debilitating medical condition; and
(3) The patient and the patient’s primary caregiver, if
any, were engaged in the acquisition, possession, cultiva-
tion, manufacture, use, delivery, transfer, or transportation
of marihuana...totreat or alleviate the patient’s serious
or debilitating medical condition or symptoms of the pa-
tient’s serious or debilitating medical condition.
(b) A person may assert the medical purpose for using
marihuana in a motion to dismiss, and the charges shall be
dismissed following an evidentiary hearing where the per-
son shows the elements listed in subsection (a).
In this case, defendants moved for the dismissal of
the charges, asserting that “[a]t the time of their arrest
their conduct was reasonable and should not be subject
to criminal prosecution.” They argued that their inter-
pretation of the MMMA was reasonable and, in light of
the ambiguous nature of the MMMA, they could not
have predicted that their conduct of operating a mari-
juana dispensary was illegal. However, defendants did
not specifically argue that they were entitled to the
protections afforded under either MCL 333.26424 or
MCL 333.26428 or in what capacity they acquired such
rights. That is, for example, defendants did not argue or
2013] P
EOPLE V
J
OHNSON
459
establish that they were qualifying patients who had
been issued and possessed registry identification cards,
MCL 333.26424(a), or primary caregivers who had been
issued and possessed registry identification cards, MCL
333.26424(b). They did not argue or attempt to estab-
lish that they were entitled to the protection afforded
under MCL 333.26424(i). And none of the defendants
argued or attempted to establish that any one of them
was entitled to the protection afforded under MCL
333.26428(a) as either “a patient” or “a patient’s pri-
mary caregiver.” In other words, in their joint motion
for dismissal defendants did not argue or attempt to
establish that they had the legal right to seek the
protections from arrest, prosecution, or penalty af-
forded under the MMMA for their marijuana-related
activities. And they did not challenge as ambiguous any
specific term as it related to their alleged right to seek
the protections afforded under the MMMA. Defendants’
brief on appeal likewise fails to assert any such argu-
ments. Again, on appeal defendants merely appear to
argue that the entirety of the MMMA is ambiguous. For
example, defendants argue: “Because the Defendants
operated with a good faith belief that their conduct was
protected under the [MMMA], the trial court correctly
dismissed the charges.” However, defendants have
never explained which particular provisions of the
MMMA allegedly gave rise to this “good faith belief.”
That is, what particular provisions of the MMMA
purportedly led them to believe that they could operate
a for-profit marijuana dispensary?
Nevertheless, the trial court dismissed the charges
against all seven defendants without first determin-
ing whether any defendant was entitled to the pro-
tections afforded under either MCL 333.26424 or
MCL 333.26428. The trial court made no specific
findings about each of the statutory requirements.
460 302 M
ICH
A
PP
450 [Sept
Instead, after inquiring during oral argument which
specific provisions were being challenged as ambigu-
ous by defendants—because no specific challenge was
set forth in their motion to dismiss—the trial court
held that one of the challenged provisions, § 4(i), was
ambiguous. As set forth above, that provision pro-
vides: “A person shall not be subject to arrest, pros-
ecution, 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 assist-
ing a registered qualifying patient with using or
administering marihuana.” MCL 333.26424(i). The
trial court summarily concluded that the phrase
“using or administering marihuana” was ambiguous.
Apparently, then, the trial court considered each of
the seven defendants “a person” as contemplated
under § 4(i) and not a “qualifying patient” or a
“primary caregiver.” However, even if each defendant
was such “a person” contemplated under § 4(i), the
trial court failed to determine that each defendant
was “assisting a registered qualifying patient” with
regard to each charge for which he or she was being
prosecuted. And defendants did not challenge as
ambiguous the phrase “assisting a registered qualify-
ing patient.” In light of all these considerations, we
conclude that the trial court abused its discretion
when it dismissed the charges against all seven
defendants without determining whether any of the
defendants were specifically entitled to the protec-
tions afforded under either MCL 333.26424 or MCL
333.26428. Accordingly, we remand this matter to the
trial court for reinstatement of the charges against all
seven defendants.
Next, the prosecution argues that the trial court
erroneously held that the rule of lenity applied under
the circumstances of this case. We agree.
2013] P
EOPLE V
J
OHNSON
461
“The ‘rule of lenity’ provides that courts should
mitigate punishment when the punishment in a crimi-
nal statute is unclear.” People v Denio, 454 Mich 691,
699; 564 NW2d 13 (1997). The rule of lenity applies only
if the statute is ambiguous or “ ‘in absence of any firm
indication of legislative intent.’ ” Id. at 700 n 12, quot-
ing People v Wakeford, 418 Mich 95, 113-114; 341 NW2d
68 (1983). However, the rule of lenity does not apply
when construing the Public Health Code because the
Legislature mandated in MCL 333.1111(2) that the
code’s provisions are to be “liberally construed for the
protection of the health, safety, and welfare of the
people of this state.” Denio, 454 Mich at 699. “It is
illegal under the Public Health Code, MCL 333.1101 et
seq., for a person to possess, use, manufacture, create,
or deliver marijuana.” People v Nicholson, 297 Mich
App 191, 197; 822 NW2d 284 (2012).
Defendants here argued that the holding in People
v Dempster, 396 Mich 700; 242 NW2d 381 (1976),
supported their argument that the rule of lenity
should apply under the circumstances of this case.
The statute violated in Dempster, however, was not
part of the Public Health Code. Id. at 703. Neverthe-
less, defendants argued in the trial court, and argue
here on appeal, that the rule of lenity should be
applied under the circumstances of this case because
they were denied “due process and advanced notice of
the conduct being prohibited,” i.e., they lacked “fair
warning.” It appears from defendants’ motion to
dismiss, as well as their brief on appeal, that they are
arguing they did not know and could not know that
marijuana dispensaries were not legal under the
MMMA. However, even if we were to consider defen-
dants’ arguments, defendants have failed to identify
any allegedly ambiguous provision of the MMMA that
led them to their mistaken belief that marijuana
462 302 M
ICH
A
PP
450 [Sept
dispensaries were, in fact, legal. The MMMA did not,
and still does not, include any provision that states
that marijuana dispensaries are or were legal busi-
ness entities. Similarly, defendants have failed to
identify any allegedly ambiguous provision of the
MMMA from which it could reasonably be inferred
that marijuana dispensaries were legal business en-
tities. Accordingly, the trial court’s decision to apply
the rule of lenity in this case is reversed.
In a related argument, the prosecution argues that
the trial court erred by failing to give retroactive effect
to this Court’s decision in McQueen, 293 Mich App 644,
which addressed the legality of operating a marijuana
dispensary that facilitates patient-to-patient sales of
marijuana. We agree.
In McQueen, the defendants owned and operated a
marijuana dispensary that facilitated sales of marijuana
between its members who were either registered quali-
fying patients or their primary caregivers. McQueen,
293 Mich App at 647-648. A complaint was filed against
the defendants, seeking injunctive relief on the ground
that the MMMA did not provide for the operation of
marijuana dispensaries and, thus, the dispensary was a
public nuisance. Id. at 648, 651-652. The trial court
denied the plaintiff’s request, and this Court reversed
the decision, holding that the dispensary was a public
nuisance. Id. at 648. After holding that “the MMMA
does not authorize marijuana dispensaries” and “the
MMMA does not expressly state that patients may sell
their marijuana to other patients,” we considered
whether that authority could be inferred from provi-
sions of the MMMA. Id. at 663. In particular, we held
that although the “medical use” of marijuana is allowed
to the extent that it is carried out in accordance with
the MMMA, MCL 333.26427(a), the definition of “medi-
2013] P
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cal use” did not include the sale of marijuana.
5
Id.at
665, 668-669. Accordingly, the defendants had “no au-
thority under the MMMA to operate a marijuana dis-
pensary that actively engages in and carries out patient-
to-patient sales of marijuana.”
6
Id. at 670. We likewise
rejected the defendants’ argument that they were en-
titled to immunity under § 4(i), MCL 333.26424(i),
because they were assisting registered qualifying pa-
tients with “using or administering” marijuana. Id.at
671. We held that a person assists a qualifying patient
with “using or administering” marijuana when they aid
in preparing it for consumption or by physically aiding
the patient in consuming the marijuana.
7
Id. at 673.
The general rule is that judicial decisions are given
full retroactive effect and complete prospective applica-
tion is limited to decisions that overrule clear and
uncontradicted caselaw. People v Neal, 459 Mich 72, 80;
586 NW2d 716 (1998). But “[t]he retroactive applica-
tion of an unforeseeable interpretation of a criminal
statute, if detrimental to a defendant, may violate the
Due Process Clause.” People v Brown, 239 Mich App
735, 750; 610 NW2d 234 (2000). In People v Doyle, 451
Mich 93, 100; 545 NW2d 627 (1996), our Supreme
explained that due process is violated when the retro-
active application of a judicial decision acts or operates
5
Our Supreme Court, however, has since held that the definition of
“medical use” includes the sale of marijuana. Michigan v McQueen, 493
Mich 135, 152; 828 NW2d 644 (2013).
6
Our Supreme Court affirmed this holding, albeit on different
grounds, holding that the defendants’ business, which facilitated patient-
to-patient sales, encompassed “marijuana-related conduct that is not for
the purpose of alleviating the transferor’s debilitating medical condition
or its symptoms.” Id. at 157.
7
Our Supreme Court agreed, holding that “the terms ‘using’ and
‘administering’ are limited to conduct involving the actual ingestion of
marijuana.” Id. at 158.
464 302 M
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as an ex post facto law, i.e., criminalizes conduct that
was innocent at the time performed.
First, we note that defendants were not charged with
violating any penalty provision of the MMMA. Defen-
dants’ charges arose from their alleged violation of
certain controlled substance provisions of the Public
Health Code. In defense of these charges, defendants
have alleged that they are entitled to immunity as
provided under § 4 of the MMMA. Accordingly, the
retroactive application of this Court’s decision in Mc-
Queen, although rendered after defendants’ arrests,
does not present a due process concern because this
decision does not operate as an ex post facto law. None
of the defendants are deprived of “due process of law in
the sense of fair warning that his contemplated conduct
constitutes a crime.” Bouie v City of Columbia, 378 US
347, 355; 84 S Ct 1697; 12 L Ed 2d 894 (1964) (emphasis
added). Neither our holding in McQueen, 293 Mich App
644, nor our Supreme Court’s subsequent holding in
McQueen, 493 Mich 135, had the effect of criminalizing
previously innocent conduct. This is not a case in which
marijuana dispensaries were authorized by statute and
then, by judicial interpretation, deemed illegal.
Second, the retroactive application of this Court’s
decision in McQueen does not have the effect of over-
ruling clear and uncontradicted caselaw. See Neal, 459
Mich at 80; Doyle, 451 Mich at 104. That is, defendants
were never led to believe by a judicial decision of this
Court or our Supreme Court that operating a marijuana
dispensary was permitted under the MMMA. And third,
defendants have not identified any allegedly ambiguous
provision of the MMMA that could have reasonably led
them to believe that operating a marijuana dispensary
was permitted under the MMMA; thus, defendants
have failed to establish that this Court’s interpretation
2013] P
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of the MMMA in McQueen is unforeseeable. Accord-
ingly, this Court’s decision in McQueen is entitled to
retroactive application and the trial court erred by
failing to apply the holding to this case. Further, our
Supreme Court’s subsequent decision in McQueen, 493
Mich 135, is also entitled to retroactive application for
the same reasons.
Reversed and remanded for reinstatement of the
charges against defendants and for further proceedings
consistent with this opinion. We do not retain jurisdic-
tion.
S
ERVITTO
,P.J., and C
AVANAGH
and W
ILDER
, JJ., con-
curred.
466 302 M
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MENARD INC v DEPARTMENT OF TREASURY
SEARS ROEBUCK AND CO v STATE TREASURER
MENARD INC v STATE TREASURER
ART VAN FURNITURE-CONNER INC v STATE TREASURER
ART VAN FURNITURE INC v STATE TREASURER
Docket Nos. 310399, 311053, 311261, 311294, and 312168. Submitted
May 7, 2013, at Lansing. Decided September 12, 2013, at 9:00 a.m.
Leave to appeal sought.
Menard Inc., Sears Roebuck and Co., Art Van Furniture-Conner
Inc., and Art Van Furniture Inc., filed separate actions in the
Court of Claims against the Department of Treasury, State
Treasurer, and the State of Michigan, seeking a refund under
the bad debt deduction contained in MCL 205.54i of the General
Sales Tax Act, MCL 205.51 et seq (GSTA). Plaintiffs, as retailers,
entered into agreements with financing companies to issue
private label credit cards. Plaintiffs remitted the sales tax to the
treasury department when a customer made a purchase using
the respective private label credit card; the financing company
would subsequently reimburse the respective retailer for the
purchase, as well as the applicable sales tax. The financing
companies would write off as bad debt those amounts that
customers did not pay on their credit card purchases. Plaintiffs
sought a refund from the treasury department of the sales tax
paid that was attributable to the bad debt. In Docket No.
310399, the court, Rosemarie E. Aquilina, J., granted summary
disposition in favor of Menard. In Docket No. 311053, the court,
Clinton Canady III, J., granted summary disposition in favor of
Sears. In Docket No. 311261, the court, Joyce Draganchuk, J.
granted summary disposition in favor of defendants. In Docket
No. 311294, the court, Joyce A. Draganchuk, J., granted sum-
mary disposition in favor of defendants. In Docket No.312168,
the court, William E. Collette, J., granted summary disposition
in favor of Art Van Furniture, Inc. Defendants appealed in
Docket Nos. 310399 and 312168, Sears appealed in Docket No.
311053, Menard Inc. appealed in Docket No. 311261, and Art
Van Furniture-Conner, Inc. appealed in Docket No. 311294.
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The Court of Appeals held:
1. The bad debt provision of the GSTA, MCL 205.54i(1)(a),
allows a taxpayer to deduct bad debts from the gross proceeds used
to calculate tax liability; it allows taxpayers to recover overpay-
ment when expected sales proceeds are not received. To compute
the tax owed each month under the GSTA, a taxpayer may deduct
the amount of bad debts from his or her gross proceeds used for the
computation of the tax. MCL 205.54i(2)
2. A private label credit card means any credit card or charge
card that carries, refers to, or is branded with the name or logo of
a vendor, that can only be used for purchases from the vendor,
MCL 205.54i(1)(d), and the term lender includes the issuer of a
private label credit card, MCL 205.54i(1)(b)(iii).
3. For purposes of the GSTA, a sales transaction may include
a lender when the consumer utilizes a credit card to complete
the sale, and the lender may hold the account receivable
signifying a bad debt when the consumer fails to pay for the
purchase in accordance with the terms of the private label credit
card. Under MCL 205.54i(1)(e) and (3), after September 30,
2009, the term taxpayer includes the person who directly
remitted the tax to the treasury department or the lender
holding the account receivable. A lender and retailer is not a
single unit for purposes of determining the taxpayer who is
entitled to the bad debt deduction, but pursuant to MCL
205.54i(3), a taxpayer and lender may execute an election
regarding which entity may claim the deduction.
4. In this case, plaintiff retailers were not entitled, under
the bad debt provision, MCL 205.54i, to a refund for the sales
tax paid on retail sales, the payment of which were never
collected by the credit card financing companies. The plain
language of MCL 205.54i states that when the debt is paid, the
taxpayer remains liable for remittance of the tax to the extent
of the amount paid. Consumers paid for goods by using private
label credit cards and the credit card lenders in turn paid the
plaintiff retailers in full for the goods and sales tax in accor-
dance with their reimbursement agreements.
Reversed and remanded for entry of an order granting sum-
mary disposition in favor of defendants in Dockets Nos. 310399
and 312168. Affirmed in Docket Nos. 311053, 311261, and 311294.
G
ENERAL
S
ALES
T
AX
A
CT —
B
AD
D
EBT
P
ROVISION —
D
EFINITION OF
T
AXPAYER
.
The bad debt provision, MCL 205.54i(1)(a), of the General Sales Tax
Act, MCL 205.51 et seq., allows a taxpayer to deduct bad debts from
the gross proceeds used to calculate tax liability; for purposes of
468 302 M
ICH
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the bad debt provision, after September 30, 2009, the term
taxpayer includes the person who directly remitted the tax to the
Department of Treasury or, the lender holding the account receiv-
able when a purchase is made with a private label credit card; a
lender and retailer is not a single unit for purposes of determining
the taxpayer who is entitled to the bad debt deduction, but
pursuant to MCL 205.54i(3), a taxpayer and lender may execute an
election regarding which entity may claim the deduction.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Richard A. Bandstra, Chief Legal
Counsel, and Scott L. Damich, Assistant Attorney Gen-
eral, for Department of Treasury, State Treasurer, and
State of Michigan.
Bodman PLC (by Joseph J. Shannon) and Akerman
Senterfitt (by Peter O. Larsen, Michael J. Bowen, and
David E. Otero), for Menard, Inc.; Sears, Roebuck and
Co., Art Van Furniture-Conner, Inc., and Art Van Fur-
niture, Inc.
Before: F
ORT
H
OOD
,P.J., and F
ITZGERALD
and
O’C
ONNELL
,JJ.
P
ER
C
URIAM
. In these consolidated appeals, the issue
presented is whether plaintiffs, as retailers, are entitled
to a refund pursuant to the bad debt provision, MCL
205.54i, of Michigan’s General Sales Tax Act (GSTA),
MCL 205.51 et seq., when the losses were incurred by a
third-party financing company. We conclude that plain-
tiffs are not entitled to the refunds under the bad debt
provision, and, in each action, summary disposition in
favor of defendants is proper.
1
1
In Docket Nos. 310399 and 312168, summary disposition was granted
in favor of plaintiffs, and we reverse and remand for entry of an order
granting summary disposition in favor of defendants. In Docket Nos.
311053, 311261, and 311294, summary disposition was granted in favor
of defendants, and we affirm those decisions.
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I. BASIC FACTS AND PROCEDURAL HISTORY
In these cases, plaintiffs, as retailers, entered into
agreements with financing companies to issue private
label credit cards (PLCC).
2
When a customer made a
purchase with a PLCC, the retailer remitted the sales tax
to the treasury department. In accordance with the terms
of the agreements between the retailer and the financing
companies, the retailer received reimbursement for the
purchase
3
and the applicable sales tax. When the custom-
ers failed to pay the amounts owed on their PLCC, the
financing company wrote off the bad debts. However,
plaintiffs, as the retailers, also sought a refund from the
treasury department of the sales tax attributable to the
bad debt amount. Defendants asserted that plaintiffs were
not entitled to a refund of the sales tax because they did
not fulfill the requirements of MCL 205.54i(1)(a). Plain-
tiffs argued that their actions, coupled with the actions of
the lender, qualified for the bad debt deduction of MCL
205.54i(1)(a) pursuant to the decision in DaimlerChrysler
Servs North America LLC v Dep’t of Treasury, 271 Mich
App 625; 723 NW2d 569 (2006), superseded by statute as
recognized in GMAC LLC v Dep’t of Treasury, 286 Mich
App 365, 374; 781 NW2d 310 (2009).
4
Pursuant to the
plain language of MCL 205.54i, as amended by 2007 PA
105, and the rules governing taxation, we hold that
plaintiffs are not entitled to the refund.
2
In Docket No. 311053, plaintiff, Sears Roebuck & Co, initially
operated a Sears-label credit card program administered by Citibank, but
ultimately sold its accounts to Citibank.
3
The agreements may have provided for discounted amounts and not
full reimbursement for the total amount of the sale.
4
Plaintiffs also rely on Home Depot USA, Inc v State of Michigan,
unpublished opinion per curiam of the Court of Appeals, issued May 24,
2012 (Docket No. 301341). However, the Home Depot decision is unpub-
lished, not binding precedent, and we decline plaintiffs’ invitation to
follow it. MCR 7.215(C)(1); Paris Meadows, LLC v City of Kentwood, 287
Mich App 136, 145 n 3; 783 NW2d 133 (2010).
470 302 M
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II. RULES REGARDING STATUTORY CONSTRUCTION
A trial court’s ruling regarding a motion for sum-
mary disposition presents a question of law subject to
review de novo. Titan Ins Co v Hyten, 491 Mich 547,
553; 817 NW2d 562 (2012). The interpretation and
application of a statute presents a question of law that
the appellate court reviews de novo. Whitman v City of
Burton, 493 Mich 303, 311; 831 NW2d 223 (2013). The
judiciary’s objective when interpreting a statute is to
discern and give effect to the intent of the Legislature.
Id. Once the intent of the Legislature is discovered, it
must prevail regardless of any rule of statutory con-
struction to the contrary. In re Certified Question, 433
Mich 710, 722; 449 NW2d 660 (1989). First, the court
examines the most reliable evidence of the Legislature’s
intent, the language of the statute itself. Whitman, 493
Mich at 311. “When construing statutory language, [the
court] must read the statute as a whole and in its
grammatical context, giving each and every word its
plain and ordinary meaning unless otherwise defined.”
In re Receivership of 11910 South Francis Rd, 492 Mich
208, 222; 821 NW2d 503 (2012). Effect must be given to
every word, phrase, and clause in a statute, and the
court must avoid a construction that would render part
of the statute surplusage or nugatory. Johnson v Recca,
492 Mich 169, 177; 821 NW2d 520 (2012). “If the
language of a statute is clear and unambiguous, the
statute must be enforced as written and no further
judicial construction is permitted.” Whitman, 493 Mich
at 311. “Generally, when language is included in one
section of a statute but omitted from another section, it
is presumed that the drafters acted intentionally and
purposely in their inclusion or exclusion.” People v
Peltola, 489 Mich 174, 185; 803 NW2d 140 (2011). The
courts may not read into the statute a requirement that
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the Legislature has seen fit to omit. In re Hurd-Marvin
Drain, 331 Mich 504, 509; 50 NW2d 143 (1951); Mich
Basic Prop Ins Ass’n v Office of Fin & Ins Regulation,
288 Mich App 552, 560; 808 NW2d 456 (2010). “When
the Legislature fails to address a concern in the statute
with a specific provision, the courts cannot insert a
provision simply because it would have been wise of the
Legislature to do so to effect the statute’s purpose.”
Mich Basic Prop Ins Ass’n, 288 Mich App at 560
(quotation marks and citation omitted). Statutes that
address the same subject matter or share a common
purpose are in pari materia and must be read collec-
tively as one law, even when there is no reference to one
another. Maple Grove Twp v Misteguay Creek Inter-
county Drain Bd, 298 Mich App 200, 212; 828 NW2d
459 (2012). “The word ‘or’ generally refers to a choice
or alternative between two or more things.” Auto-
Owners Ins Co v Stenberg Bros, Inc, 227 Mich App 45,
50; 575 NW2d 79 (1997).
III. RULES REGARDING TAXATION, DEDUCTION, AND EXEMPTION
State legislatures have great discretionary latitude in for-
mulating taxes. The legislature must determine all ques-
tion of State necessity, discretion or policy in ordering a tax
and in apportioning it. And the judicial tribunals of the
State have no concern with the policy of State taxation
determined by the legislature. [In re Request for Advisory
Opinion Regarding Constitutionality of 2011 PA 38, 490
Mich 295, 308; 806 NW2d 683 (2011) (quotation marks and
citations omitted).]
When interpreting a tax statute, the power to tax must
be expressly stated, not inferred. Mich Bell Tel Co v
Dep’t of Treasury, 445 Mich 470, 477; 518 NW2d 808
(1994); Ameritech Publishing, Inc v Dep’t of Treasury,
281 Mich App 132, 136; 761 NW2d 470 (2008). “Tax
laws will not be extended in scope by implication or
472 302 M
ICH
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forced construction.” Ameritech Publishing, Inc, 281
Mich App at 136. “[A]mbiguities in the language of a tax
statute are to be resolved in favor of the taxpayer.” Mich
Bell Tel Co, 445 Mich at 477. The appellate court “may
not vary the clear and unequivocal meaning of the
words used in the statute and determine tax matters
solely on the grounds of unwisdom or of public policy.”
Ready-Power Co v City of Dearborn, 336 Mich 519, 525;
58 NW2d 904 (1953).
A “tax deduction” is a “subtraction from gross in-
come in arriving at taxable income.” In re Request for
Advisory Opinion, 490 Mich at 333 n 40 (quotation
marks and citation omitted). A “tax exemption” is
characterized as “[i]mmunity from the obligation of
paying taxes in whole or in part.” Id. Although the two
principles differ, the net effect is the same because both
reduce gross income when computing taxable income.
Id. (quotation marks and citation omitted). Taxation is
the rule, and exemptions are the exception. Ladies
Literary Club v City of Grand Rapids, 409 Mich 748,
754; 298 NW2d 422 (1980). Consequently, statutory
exemptions are strictly construed against the taxpayer.
ANR Pipeline Co v Dep’t of Treasury, 266 Mich App 190,
201; 699 NW2d 707 (2005). Similarly, a deduction
presents a matter of legislative grace, and a clear
provision must be identified to allow for a particular
deduction. Id. A deduction must be clearly expressed
because the “propriety of a deduction does not turn
upon general equitable considerations, such as a dem-
onstration of effective economic and practical equiva-
lence.” Perry Drug Stores, Inc v Dep’t of Treasury, 229
Mich App 453, 461; 582 NW2d 533 (1998) (citation and
quotation marks omitted). The burden of proving a
deduction is on the party seeking the deduction. See
Southfield Western, Inc v City of Southfield, 146 Mich
App 585, 590; 382 NW2d 187 (1985).
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In practice, the rules of construction governing ex-
emptions may be applied to the rules addressing deduc-
tions. See Detroit Edison Co v Dep’t of Revenue, 320
Mich 506, 514-515; 31 NW2d 809 (1948). In GMAC
LLC, 286 Mich App at 374-375, this Court set forth the
following rules regarding tax exemptions:
Moreover, “[a]n exemption will not be inferred from
language of a statute if the words admit of any other
reasonable construction.” Tax exemptions are disfavored,
and the burden of proving an entitlement to an exemption
is on the party claiming the right to the exemption. Tax
exemptions are in derogation of the principle that all shall
bear a proportionate share of the tax burden, and there-
fore, a tax exemption shall be strictly construed. [Citations
omitted.]
With regard to the clarity of the language required to
claim an exemption and the burden of proof, our Su-
preme Court has held:
“An intention on the part of the legislature to grant an
exemption from the taxing power of the State will never be
implied from language which will admit of any other
reasonable construction. Such an intention must be ex-
pressed in clear and unmistakable terms, or must appear
by necessary implication from the language used, for it is a
well-settled principle that, when a specific privilege or
exemption is claimed under a statute, charter or act of
incorporation, it is to be construed strictly against the
property owner and in favor the public. This principle
applies with peculiar force to a claim of exemption from
taxation. Exemptions are never presumed, the burden is on
a claimant to establish clearly his right to exemption, and
an alleged grant of exemption will be strictly construed and
cannot be made out by inference or implication but must be
beyond reasonable doubt. In other words, since taxation is
the rule, and exemption the exception, the intention to
make an exemption ought to be expressed in clear and
unambiguous terms; it cannot be taken to have been
intended when the language of the statute on which it
474 302 M
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depends is doubtful or uncertain; and the burden of estab-
lishing it is upon him who claims it. Moreover, if an
exemption is found to exist, it must not be enlarged by
construction, since the reasonable presumption is that the
State has granted in express terms all it intended to grant
at all, and that unless the privilege is limited to the very
terms of the statute, the favor would be extended beyond
what was meant.” [City of Detroit v Detroit Commercial
College, 322 Mich 142, 148-149; 33 NW2d 737 (1948),
quoting 2 Cooley, Taxation (4th ed), § 672, p 1403.]
IV. MCL 205.54i AND APPLICATION TO THE FACTS
Before its 2007 amendment, the plain language of the
bad debt statute, MCL 205.54i, provided, in relevant
part:
(1) As used in this section, “bad debt” means any
portion of a debt that is related to a sale at retail taxable
under this act for which gross proceeds are not otherwise
deductible or excludable and that is eligible to be claimed,
or could be eligible to be claimed if the taxpayer kept
accounts on an accrual basis, as a deduction pursuant to
section 166 of the internal revenue code, 26 USC 166. A bad
debt shall not include any finance charge, interest, or sales
tax on the purchase price, uncollectible amounts on prop-
erty that remains in the possession of the taxpayer until
the full purchase price is paid, expenses incurred in at-
tempting to collect any account receivable or any portion of
the debt recovered, any accounts receivable that have been
sold to and remain in the possession of a third party for
collection, and repossessed property.
(2) In computing the amount of tax levied under this act
for any month, a taxpayer may deduct the amount of bad
debts from his or her gross proceeds used for the compu-
tation of the tax. The amount of gross proceeds deducted
must be charged off as uncollectible on the books and
records of the taxpayer at the time the debt becomes
worthless and deducted on the return for the period during
which the bad debt is written off as uncollectible in the
2013] M
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claimant’s books and records and must be eligible to be
deducted for federal income tax purposes. For purposes of
this section, a claimant who is not required to file a federal
income tax return may deduct a bad debt on a return filed
for the period in which the bad debt becomes worthless and
is written off as uncollectible in the claimant’s books and
records and would be eligible for a bad debt deduction for
federal income tax purposes if the claimant was required to
file a federal income tax return. If a consumer or other
person pays all or part of a bad debt with respect to which
a taxpayer claimed a deduction under this section, the
taxpayer is liable for the amount of taxes deducted in
connection with that portion of the debt for which payment
is received and shall remit these taxes in his or her next
payment to the department. Any payments made on a bad
debt shall be applied proportionally first to the taxable
price of the property and the tax on the property and
second to any interest, service, or other charge.
(3) Any claim for a bad debt deduction under this section
shall be supported by that evidence required by the depart-
ment. The department shall review any change in the rate
of taxation applicable to any taxable sales by a taxpayer
claiming a deduction pursuant to this section and shall
ensure that the deduction on any bad debt does not result
in the taxpayer claiming the deduction recovering any
more or less than the taxes imposed on the sale that
constitutes the bad debt.
MCL 205.54i, as amended by 2007 PA 105, placed limita-
tions on who qualified as a “taxpayer” for purposes of the
bad debt provision. “The amendment to MCL 205.54i was
approved and filed on October 1, 2007, given immediate
effect, and expressly provided for retroactive application.”
GMAC LLC, 286 Mich App at 369.
MCL 205.54i, as amended by 2007 PA 105, states:
(1) As used in this section:
(a) “Bad debt” means any portion of a debt that is
related to a sale at retail taxable under this act for which
gross proceeds are not otherwise deductible or excludable
476 302 M
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and that is eligible to be claimed, or could be eligible to be
claimed if the taxpayer kept accounts on an accrual basis,
as a deduction pursuant to section 166 of the internal
revenue code, 26 USC 166. A bad debt shall not include any
finance charge, interest, or sales tax on the purchase price,
uncollectible amounts on property that remains in the
possession of the taxpayer until the full purchase price is
paid, expenses incurred in attempting to collect any ac-
count receivable or any portion of the debt recovered, any
accounts receivable that have been sold to and remain in
the possession of a third party for collection, and repos-
sessed property.
(b) Except as provided in subdivision (c), “lender”
includes any of the following:
(i) Any person who holds or has held an account
receivable which that person purchased directly from a
taxpayer who reported the tax.
(ii) Any person who holds or has held an account
receivable pursuant to that person’s contract directly with
the taxpayer who reported the tax.
(iii) The issuer of the private label credit card.
(c) “Lender” does not include the issuer of a credit card
or instrument that can be used to make purchases from a
person other than the vendor whose name or logo appears
on the card or instrument or that vendor’s affiliates.
(d) “Private label credit card” means any charge card,
credit card, or other instrument serving a similar purpose
that carries, refers to, or is branded with the name or logo
of a vendor and that can only be used for purchases from
the vendor.
(e) “Taxpayer” means a person that has remitted sales
tax directly to the department on the specific sales at retail
transaction for which the bad debt is recognized for federal
income tax purposes or, after September 30, 2009, a lender
holding the account receivable for which the bad debt is
recognized, or would be recognized if the claimant were a
corporation, for federal income tax purposes.
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(2) In computing the amount of tax levied under this
act for any month, a taxpayer may deduct the amount of
bad debts from his or her gross proceeds used for the
computation of the tax. The amount of gross proceeds
deducted must be charged off as uncollectible on the
books and records of the taxpayer at the time the debt
becomes worthless and deducted on the return for the
period during which the bad debt is written off as
uncollectible in the claimant’s books and records and
must be eligible to be deducted for federal income tax
purposes. For purposes of this section, a claimant who is
not required to file a federal income tax return may
deduct a bad debt on a return filed for the period in
which the bad debt becomes worthless and is written off
as uncollectible in the claimant’s books and records and
would be eligible for a bad debt deduction for federal
income tax purposes if the claimant was required to file
a federal income tax return. If a consumer or other
person pays all or part of a bad debt with respect to
which a taxpayer claimed a deduction under this section,
the taxpayer is liable for the amount of taxes deducted in
connection with that portion of the debt for which
payment is received and shall remit these taxes in his or
her next payment to the department. Any payments
made on a bad debt shall be applied proportionally first
to the taxable price of the property and the tax on the
property and second to any interest, service, or other
charge.
(3) After September 30, 2009, if a taxpayer who reported
the tax and a lender execute and maintain a written
election designating which party may claim the deduction,
a claimant is entitled to a deduction or refund of the tax
related to a sale at retail that was previously reported and
paid if all of the following conditions are met:
(a) No deduction or refund was previously claimed or
allowed on any portion of the account receivable.
(b) The account receivable has been found worthless
and written off by the taxpayer that made the sale or the
lender on or after September 30, 2009.
478 302 M
ICH
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467 [Sept
(4) Any claim for a bad debt deduction under this section
shall be supported by that evidence required by the depart-
ment. The department shall review any change in the rate
of taxation applicable to any taxable sales by a taxpayer
claiming a deduction pursuant to this section and shall
ensure that the deduction on any bad debt does not result
in the taxpayer claiming the deduction recovering any
more or less than the taxes imposed on the sale that
constitutes the bad debt.
Plaintiffs direct this panel to the decisions of Daimler-
Chrysler and GMAC LLC, and request that we interpret
those decisions to conclude that plaintiff retailers,
coupled with the financing companies constituted “tax-
payers” for purposes of obtaining the bad debt refund in
accordance with MCL 205.54i(1)(a).
5
The appropriate
inquiry is not to construe this factual scenario within
the confines of those appellate decisions. Rather, our
role is to discern the legislative intent from the plain
language of the amended statute, Whitman, 493 Mich at
311, enforce the statute as written if the language is
clear and unambiguous, id., or to construe the statute
as necessary to give effect to every word in the statute
and avoid a construction that would render part of the
statute surplusage or nugatory, Johnson, 492 Mich at
177. Because a tax exemption or deduction is sought by
plaintiffs, they have the burden of proof, Detroit, 322
Mich at 148, the statute is strictly construed against
them as the taxpayer, GMAC LLC, 286 Mich at 375, and
the exemption must be expressed in clear and unam-
biguous terms, Detroit, 322 Mich at 149. In light of the
rules governing statutory construction, tax exemption
5
Specifically, plaintiffs contend that DaimlerChrysler, which held that
groups may act as a unit for purposes of determining the “taxpayer,”
remains viable. However, the plain language of MCL 205.54i, as amended
by 2007 PA 105, indicates that the retailer, as the taxpayer, and the
lender, are treated differently. See MCL 205.54i(1)(e) and (3). The
statutory amendment superseded the DaimlerChrysler decision.
2013] M
ENARD
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and deduction, and the burden of proof, we conclude
that plaintiffs are not entitled to a refund under the bad
debt provision.
Pursuant to MCL 205.52(1) of the GSTA, business
persons engaged in making sales at retail must pay an
annual tax for the privilege of engaging in business in
this state. World Book, Inc v Dep’t of Treasury, 459
Mich 403, 407; 590 NW2d 293 (1999). The sales tax is
imposed directly on the seller, but the seller may
transfer it directly to the consumer at the point of sale.
Id. at 408. The bad debt provision of the GSTA allows
“bad debts to be deducted from the gross proceeds used
to calculate tax liability.” Id. at 406. Specifically, the bad
debt provision “allows taxpayers to recover overpay-
ment when expected sales proceeds are not received.”
DaimlerChrysler, 271 Mich App at 626.
A review of the plain language of MCL 205.54i, as
amended by 2007 PA 105, and applied retroactively,
reveals that the Legislature recognized that sales trans-
actions did not merely involve a consumer and a re-
tailer. Rather, the Legislature acknowledged that sales
transactions may include a lender when the consumer
utilizes a credit card to complete the sale, and the
lender may hold the account receivable signifying a bad
debt when the consumer fails to pay for the purchase in
accordance with the terms of the private label credit
card. MCL 205.54i(1)(b) and (e). Consequently, the
availability of the deduction has been limited, and a
taxpayer and lender may execute an election regarding
the entity that may claim the deduction subject to
completion of the necessary conditions. MCL 205.54i(3)
(“[A] taxpayer who reported the tax and a lender [may]
execute and maintain a written election designating
which party may claim the deduction[.]”). Furthermore,
after September 30, 2009, the term “taxpayer” may
480 302 M
ICH
A
PP
467 [Sept
include the person that directly remitted the tax to the
treasury department or the lender holding the account
receivable for which the bad debt is recognized. “The
word ‘or’ generally refers to a choice or alternative
between two or more things.” Auto-Owners Ins Co, 227
Mich App at 50. The use of the alternative term “or”
reflects the legislative intent that the “taxpayer” as the
remitter of the tax and the “lender” are two different
entities for purposes of allowing a taxpayer to obtain
the refund. Id. Plaintiffs did not meet their burden of
proving a clearly stated exemption or deduction.
Irrespective of the Legislature’s recognition that the
sales transaction may involve third party lenders, both
the amended and the prior versions of MCL 205.54i(2)
confined the deduction. Specifically, MCL 205.54i(2),
and MCL 205.54i(2), as amended by 2007 PA 105, both
contain the same language, in relevant part: “If a
consumer or other person pays all or part of a debt with
respect to which a taxpayer claimed a deduction under
this section, the taxpayer is liable for the amount of
taxes deducted in connection with that portion of the
debt for which payment is received and shall remit
these taxes in his or her next payment to the depart-
ment.” (emphasis added). In the factual scenario where
the taxpayer is the retailer who remits the tax to the
treasury department, the retailers are paid by the
financing company. Thus, the plain language of the bad
debt provision acknowledges that when the debt is paid,
the taxpayer remains liable for remittance of the tax to
the extent of the amount paid. In the present case,
consumers obtained the funds to pay for the goods
through credit card lenders, and plaintiff retailers were
paid in full in accordance with the reimbursement
agreements for the goods, including the tax. Although
MCL 205.54i does not define “person,” the GSTA, MCL
205.51(1)(a) defines “person” to include “municipal or
2013] M
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private corporation whether organized for profit or not,
company....”Therefore, the payment of the bad debt
by a third party lender, an organized corporation, does
not entitle retailers to a bad debt refund. Accordingly,
plaintiffs are not entitled to the requested refunds.
Reversed and remanded for entry of an order grant-
ing summary disposition in favor of defendants in
Docket Nos. 310399 and 312168, and affirmed in
Docket Nos. 311053, 311261, and 311294. We do not
retain jurisdiction.
F
ORT
H
OOD
,P.J., and F
ITZGERALD
and O’C
ONNELL
,JJ.,
concurred.
482 302 M
ICH
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LIMA TWP v BATESON
Docket Nos. 306575 and 306583. Submitted February 6, 2013, at Lan-
sing. Decided September 19, 2013, at 9:00 a.m.
Lima Township brought an action in the Washtenaw Circuit Court
against Ernest K. Bateson and Pamela E. Gough-Bahash (now
Gough-Bateson), seeking to enjoin them from using their property
to store commercial vehicles, materials, and equipment in viola-
tion of the Lima Township zoning ordinance. Gough-Bahash in
turn filed a complaint for declaratory relief against Lima Town-
ship, seeking an order permitting her to keep the items on the
property pursuant to both the zoning ordinance and the Right to
Farm Act (RTFA), MCL 286.471 et seq., because she and Bateson
were developing a tree farm and their property was zoned for
agricultural use. The court, Donald E. Shelton, J., granted Lima
Township’s motion for injunctive relief and granted summary
disposition of both cases. Gough-Bahash and Bateson appealed,
and the appeals were consolidated.
The Court of Appeals held:
1. The trial court erred by granting summary disposition
because there were genuine factual issues regarding whether
appellants’ activities were protected under the RTFA.
2. A party relying on the RTFA as a defense to a nuisance
action has the burden to prove by a preponderance of the evidence
that the challenged conduct is protected under the act. To success-
fully assert the defense, a party must prove that the challenged
condition or activity constitutes a farm or farm operation and that
the farm or farm operation conforms to the generally accepted
agricultural and management practices set forth by the Michigan
Commission of Agriculture. The trial court erred by failing to
make factual findings with regard to these elements.
3. The trial court abused its discretion by excluding the
testimony of Robert Pesko, an engineer who would have testified
about the type and amount of materials removed from appellants’
property, because it erred as a matter of law by concluding that
this would not have constituted rebuttal testimony. On remand,
the trial court should consider Pesko’s testimony before articulat-
ing factual findings under the RTFA.
2013] L
IMA
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B
ATESON
483
4. Appellants failed to establish that Lima Township denied
them equal protection and due process by treating them differ-
ently from other similarly situated individuals.
Reversed and remanded for further proceedings; jurisdiction
retained.
1. N
UISANCE —
D
EFENSES —
R
IGHT TO
F
ARM
A
CT —
B
URDEN OF
P
ROOF
.
A party relying on the Right to Farm Act, MCL 286.471 et seq., as a
defense to a nuisance action has the burden to prove by a
preponderance of the evidence that the challenged conduct is
protected under the act.
2. N
UISANCE —
D
EFENSES —
R
IGHT TO
F
ARM
A
CT —
E
LEMENTS
.
To successfully assert the Right to Farm Act as a defense to a
nuisance action, a party must prove that the challenged condition
or activity constitutes a farm or farm operation and that the farm
or farm operation conforms to the generally accepted agricultural
and management practices set forth by the Michigan Commission
of Agriculture.
3. C
ONSTITUTIONAL
L
AW —
E
QUAL
P
ROTECTION —
“C
LASSES OF
O
NE
.”
A party claiming a violation of the right to equal protection of the
law based on being treated as a class of one must establish that he
or she was intentionally treated differently from others similarly
situated and that there was no rational basis for the difference in
treatment; to be considered similarly situated, the party and the
comparators must be prima facie identical in all relevant respects
or directly comparable in all material respects (US Const, Am XIV;
Const 1963, art 1, § 2).
Reading, Etter & Lillich (by Victor L. Lillich) for
Lima Township.
Baker, Stringer & Garwood, LLP (by Thomas L.
Stringer) for Ernest K. Bateson and Pamela Gough-
Bahash.
Before: J
ANSEN
,P.J., and W
HITBECK
and B
ORRELLO
,JJ.
P
ER
C
URIAM
. In these consolidated appeals, in Docket
No. 306575, appellants Ernest Bateson and Pamela
Gough-Bahash (Gough) appeal as of right a trial court
484 302 M
ICH
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PP
483 [Sept
order denying appellants’ motion for summary disposi-
tion and granting appellee Lima Township’s motions
for summary disposition and injunctive relief. In Docket
No. 306583, Gough appeals the same order as of right.
1
For the reasons set forth in this opinion, we reverse and
remand for further proceedings.
I. FACTS AND PROCEEDINGS
On December 23, 2009, Gough, Bateson’s wife, pur-
chased approximately 30 acres of land (the property)
zoned AG-1 (agricultural) in Lima Township. Shortly
thereafter, appellee Lima Township (Lima) filed a com-
plaint
2
for injunctive relief against appellants, alleging
improper use of the property and improper storage of
commercial vehicles, materials, and equipment on the
property. Lima alleged that Bateson was using the
property to conduct commercial business operations
and store commercial vehicles and equipment.
3
Lima
claimed that these uses were not permitted under the
Lima Township Zoning Ordinance (LTZO) and were a
nuisance per se.
On the same day Lima filed its complaint, Gough
filed a complaint
4
for declaratory relief against Lima,
alleging that she and Bateson were developing a tree farm
on the property, activity that was permitted in the AG-1
zone. Gough alleged that she had certain materials, sup-
1
Although Bateson is not a party in Docket No. 306583, for ease of
reference, we will refer to him and Gough as “appellants” throughout
this opinion, regardless of which underlying case is being discussed.
2
Lima’s complaint commenced lower court Case No. 10-000368-CZ.
3
Lima alleged that Bateson was storing the following equipment on the
property: “dump trucks, semi truck trailers and tractors, Landscape
Solutions pick-up truck, front-end loaders, backhoes, dozers, larger crane
and drag line, excavators, large oil/chemical/liquid tank container, dozer
tracts, miscellaneous equipment and debris, and landscape material.”
4
Gough’s complaint commenced lower court Case No. 10-000373-CZ.
2013] L
IMA
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ATESON
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plies, equipment, and vehicles delivered to the property
for purposes of preparing the property for the tree farm.
Gough requested an order declaring that she was permit-
ted to maintain the equipment on the property.
On August 11, 2010, appellants filed two motions for
summary disposition. One motion requested summary
disposition under MCR 2.116(C)(7) and (10) as to
Gough’s complaint for declaratory relief. The other
requested summary disposition as to Lima’s complaint
pursuant to MCR 2.116(C)(7), (8), and (10). Appellants’
motions were based on assertions that the activities
being conducted on the property were a permitted
agricultural use. Specifically, appellants asserted that it
was their intent to operate a tree farm, which was
permitted under the LTZO and protected by Michigan’s
Right to Farm Act (RTFA), MCL 286.471 et seq. Appel-
lants supported their motions with affidavits in which
they both averred that they were in the process of
preparing the land for tree farming.
Lima opposed appellants’ motions, arguing that ap-
pellants were not engaged in legitimate farming activi-
ties. Additionally, Lima filed a renewed motion for a
preliminary injunction and a request for an evidentiary
hearing. Lima also requested leave to amend its com-
plaint and add allegations of ongoing excavation with-
out a special use permit.
The trial court granted Lima’s request for leave to
file an amended complaint. In regard to Lima’s motion
for a preliminary injunction and evidentiary hearing,
the trial court stated: “Motions for Summary disposi-
tion will be heard on October 20, 2010...andassuming
motions for summary disposition are not granted, an
evidentiary hearing on Plaintiff Lima Township’s re-
quest for Preliminary injunction shall be heard on
November 18, 2010.”
486 302 M
ICH
A
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483 [Sept
Lima filed its amended complaint on September 28,
2010. Shortly thereafter, the trial court entered a stipu-
lated order dismissing Gough’s complaint for declara-
tory relief—Case No. 10-000373-CZ—without preju-
dice.
5
On January 26, 2011, Lima filed a trial brief and brief
in opposition to appellants’ motion for summary dispo-
sition. Lima argued that appellants were not engaged in
a legitimate farming activity protected under the RTFA.
Lima supported its brief with affidavits, photographs,
and other documentary evidence and requested that the
trial court deny appellants’ motion for summary dispo-
sition and grant summary disposition in its favor pur-
suant to MCR 2.116(I)(2).
The trial court held a four-day evidentiary hearing on
March 24, May 12, July 28, and July 29, 2011. At the
hearing, several farmers from the area testified. This
testimony showed that appellants kept heavy equip-
ment on the property including trailers, flatbeds, gravel
haulers, bulldozers, pay loaders and cranes. One wit-
ness testified that a farmer would want a lot of appel-
lants’ equipment. In addition, testimony showed that
there were piles of dirt, rocks, asphalt millings, and
large excavation sites on the property. Several area
farmers testified that trucks regularly came and went
from the property and two farmers approximated the
number of trucks at 500. Several witnesses testified
that appellants planted a number of trees near the front
of the property, but other testimony showed that there
was no harvestable hay on the property and one area
resident with a farming background testified that the
5
The parties stipulated to dismiss Gough’s complaint; however, when
the trial court entered its final order, it indicated that the order applied
to “both cases,” and specifically dismissed “Case No. 10-373-CZ.” Hence,
both cases were presented for appellate review.
2013] L
IMA
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ATESON
487
property was not desirable for farming. Other evidence
showed that appellants were not violating the town-
ship’s soil erosion ordinance, and the township super-
visor testified that there was no claim that appellants
were operating a quarry.
Wayne Whitman, the environmental manager for the
Right to Farm Program at the Michigan Department of
Agriculture and Rural Development (MDOA), also tes-
tified at the evidentiary hearing. Whitman inspected
the property and reviewed aerial photographs of the
property. He testified that some of the photographs
depicted ground cover that appeared to be in “some sort
of rows” or serving as “some kind of erosion control
practice on that ground.” However, Whitman could not
determine whether any farming was taking place be-
cause he did not know what type of vegetation was
growing. Whitman testified that vegetation could sug-
gest ongoing farming and that prairie grass and trees
could be farm products. Whitman had written a letter
after inspecting the property that addressed the RTFA
and generally accepted agricultural and management
practices (GAAMPs), and he agreed at the hearing that
“tree planting and the use of water to irrigate the crops
would be included in the definition” of farming activi-
ties protected by the RFTA. Whitman agreed that trees
were planted on the property and he agreed that a pond
used to irrigate crops would be protected under the
RTFA. Whitman testified that the trees planted on the
property indicated the potential for a farm market
because they could be sold on the property.
In regard to the vehicles and equipment stored on
the property, Whitman stated that he could not form
an opinion as to whether they fell under the RFTA
because he did not know what the equipment was
used for. However, Whitman testified that if it was
488 302 M
ICH
A
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483 [Sept
being used for the commercial production of a farm
product, then it would be permitted under the RTFA.
Whitman further testified that the RTFA refers to the
use of equipment and does not limit the amount of
equipment that a person can maintain on a farm.
Whitman also testified that he was aware of other
farms that used heavy equipment for farming pur-
poses, including bulldozers, cranes, and other “rather
substantial equipment.”
Gough testified that she purchased the property
intending to start a tree farm and that appellants had
made significant improvements to the property in order
to prepare it for farming. Specifically, appellants graded
the property, made improvements to the driveway, and
extended it to provide access to the rest of the property.
Gough stated that Bateson hauled in several truckloads
of asphalt millings and had to dig up soil to lay the
asphalt. Gough further stated that the previous owners
left large piles of dirt along the driveway when they
built it so appellants had to remove that dirt. Gough
testified that neighbors who saw a large number of
trucks coming and going from the property were ob-
serving the property at the time appellants were doing
asphalt work.
Gough denied that appellants were engaged in com-
mercial activity other than farming. Gough admitted
that appellants removed some soil, but stated that it
was in relation to the paving and grading projects, and
she denied that 500 truckloads of material had been
removed. Gough estimated that appellants removed
about 30 truckloads, explaining that most of the loads
went to Bateson’s industrial site for processing and use
elsewhere. Gough was also aware of two instances in
which material was removed from the property and
delivered to some customers.
2013] L
IMA
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ATESON
489
In regard to the tree farming operation, Gough
testified that Bateson used his equipment to move
topsoil, prepare the land for planting, and dig holes for
planting trees. Gough and family members followed
behind and planted about 500 or 600 trees by hand.
Gough stated that appellants planned to use two cranes
stored on the property to dig an irrigation pond. Gough
also stated that she intended to build a barn on the
property, obtain livestock, and build a farm market with
a parking lot. Gough planned to use hay that Bateson
baled for the livestock.
Bateson testified that he was involved in the busi-
ness of contracting and supplying landscape materi-
als and that he previously owned two commercial
locations in Michigan. Bateson testified that he
planned to use the property for farming and as a
residence, but explained that the property required
significant improvements because it was wet and
improperly graded. According to Bateson, appellants
improved the driveway, installed gravel and asphalt
near the rear of the property where they intended to
erect a farm market, and performed extensive land-
scaping. Bateson testified that he laid 10,000 yards of
sod, used a lot of equipment to prepare the soil and
move the sod, and installed a sprinkler system. Bate-
son testified that the equipment on the site would be
used to dig an irrigation pond and for other farming
purposes. Bateson agreed that he removed some
material from the property, but claimed he did so
within the limits of the LTZO. He denied that 500
truckloads of material were removed and instead
estimated that he removed about 30 to 33 truckloads.
In regard to the farming operations, Bateson stated
that appellants planted a substantial number of trees.
Further, he planned on constructing an irrigation pond
490 302 M
ICH
A
PP
483 [Sept
for the trees. Bateson stated that he would be using
cranes, loaders, bulldozers, and trucks to build the
pond. Bateson also used his equipment to move and
store hay bales. Bateson testified that all his activities
on the property were related to farming or landscaping
and that all the equipment on the property was being
used for farm purposes.
Following the hearing, the trial court entered an
order denying appellants’ motions for summary dispo-
sition, granting injunctive relief in favor of Lima Town-
ship, and granting Lima’s motion for summary disposi-
tion pursuant to MCR 2.116(I)(2) “in both cases.” The
trial court stated that appellants’ activities were not
permitted under the LTZA and were not protected by
the RTFA. The court ordered appellants to stop remov-
ing soil and other aggregate materials from the prop-
erty. Additionally, appellants were ordered to “cease and
desist from parking and storing large gravel haulers
and other dump trucks on the property, except while in
the process of performing specific tasks permitted by
this Order....” Appellants were further ordered to
remove “earth moving and excavation vehicles and
equipment including such equipment as road graders,
dozers, front end loaders, cranes, trenchers, backhoes,
screeners, and drag lines” and to “cease and desist from
the parking and storage of commercial trailers on the
property.” Finally, appellants were ordered to stop using
“the property as a staging area for the coming and going
of...commercial vehicles and equipment.” The trial
court denied appellants’ motion for reconsideration,
these appeals ensued, and this Court consolidated the
appeals.
6
6
Lima Twp v Bateson, unpublished order of the Court of Appeals,
entered November 17, 2011 (Docket Nos. 306575 and 306583).
2013] L
IMA
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ATESON
491
II. ANALYSIS
A. SUMMARY DISPOSITION
Appellants first argue that the trial court erred by
granting summary disposition in favor of Lima and by
denying their motions for summary disposition. Appel-
lants contend that summary disposition was inappro-
priately granted in favor of Lima because the court
made credibility determinations and resolved factual
disputes. We review de novo a trial court’s decision on a
motion for summary disposition. Walgreen Co v Ma-
comb Twp, 280 Mich App 58, 62; 760 NW2d 594 (2008).
Having reviewed the record, we conclude that the trial
court erred by granting Lima’s motion for summary
disposition. A court “is not permitted to assess credibility,
or to determine facts” on a motion for summary disposi-
tion. Skinner v Square D Co, 445 Mich 153, 161; 516
NW2d 475 (1994). “Instead, the court’s task is to review
the record evidence, and all reasonable inferences there-
from, and decide whether a genuine issue of any material
fact exists to warrant a trial.” Id. Here, the trial court held
an evidentiary hearing at which both parties presented
evidence. The court then proceeded to make findings
based on that evidence by concluding that appellant’s
activities were prohibited under the LTZA and not pro-
tected by the RTFA. On the basis of those findings, the
court granted summary disposition in favor of Lima. This
amounted to error because, as we will discuss in more
detail, the trial court erred in applying the RTFA and
there were genuine factual issues regarding whether ap-
pellants’ activities were protected under the RTFA. In
short, summary disposition should not have been granted
for either party.
7
See id. (summary disposition is not
7
We also note that the trial court erred by entering any order with respect
to Case No. 10-000373-CZ—the case that Gough commenced—because the
court had previously entered a stipulated order to dismiss that case.
492 302 M
ICH
A
PP
483 [Sept
proper if there is a genuine issue of material fact).
B. RIGHT TO FARM ACT
Appellants contend that their activities were pro-
tected under the RTFA. In so doing, appellants chal-
lenge the trial court’s award of injunctive relief in favor
of Lima.
This case requires that we construe applicable provi-
sions of the RTFA. “Issues of statutory construction
involve questions of law that we review de novo.”
Cuddington v United Health Servs, Inc, 298 Mich App
264, 271; 826 NW2d 519 (2012). “The primary goal of
statutory interpretation is to give effect to the Legisla-
ture’s intent, focusing first on the statute’s plain lan-
guage.” Klooster v City of Charlevoix, 488 Mich 289,
296; 795 NW2d 578 (2011).
In this case, Lima alleged that appellants were en-
gaged in activity that is not permitted under the LTZO.
Generally, a violation of a zoning ordinance constitutes
a nuisance per se, and a court must order it abated.
MCL 125.3407; Travis v Preston (On Rehearing), 249
Mich App 338, 351; 643 NW2d 235 (2002). However,
“[u]nder the RTFA, a farm or farming operation cannot
be found to be a nuisance if it meets certain crite-
ria....” Travis, 249 Mich App at 342-343 (emphasis
added). More specifically, the rights afforded a farmer
under the RTFA preempt local ordinances such that
activities falling within the purview of the act cannot be
barred by ordinance. MCL 286.474(6); see also Travis,
249 Mich App at 343-346 (noting that 1999 PA 261
amended the RTFA to preempt local ordinances).
Therefore, if appellants’ activity was protected under
the RTFA, then the LTZO could not operate to bar
appellants from engaging in the activity and Lima was
not entitled to injunctive relief. Accordingly, the central
2013] L
IMA
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ATESON
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issue in this case is whether the trial court properly
determined that appellants’ activity was not protected
under the RTFA.
In relevant part, the RTFA affords farmers the fol-
lowing protection:
A farm or farm operation shall not be found to be a
public or private nuisance if the farm or farm operation
alleged to be a nuisance conforms to generally accepted
agricultural and management practices according to policy
determined by the Michigan commission of agriculture.
[MCL 286.473(1) (emphasis added).]
Pursuant to this language, it is clear that to determine
whether an activity is protected under the RTFA, a
two-pronged analysis is required: first, the activity
must constitute either a “farm” or a “farm operation,”
and second, the farm or farm operation must conform to
the applicable GAAMPs. However, before proceeding to
discuss these elements, we must determine the appro-
priate burden of proof.
i. BURDEN OF PROOF UNDER THE RTFA
The RTFA is silent with respect to which party bears
the burden of proof, and there is no published caselaw
addressing the issue. Therefore, we look to the plain
language of the act and the intent underlying the
legislation in order to resolve this issue. Klooster, 488
Mich at 296.
As with most legislative enactments, the purpose and
intent of the RTFA are multifaceted, arising from
myriad conflicting interests. This Court has previously
opined that the Legislature enacted the RTFA in 1981
in recognition of the expansion of development “out-
ward from our state’s urban centers and into our
agricultural communities....” Northville Twp v
494 302 M
ICH
A
PP
483 [Sept
Coyne, 170 Mich App 446, 448-449; 429 NW2d 185
(1988). The RTFA was intended to “protect farmers
from the threat of extinction caused by nuisance suits
arising out of alleged violations of local zoning ordi-
nances and other local land use regulations as well as
from the threat of private nuisance suits.” Id. at 449. As
noted, the act provides that a farm or farm operation
“shall not be found to be a public or private nuisance”
if the farm or farm operation conforms to certain
GAAMPs. MCL 286.473(1). In order to prove that
challenged conduct constitutes a “farm” or “farm op-
eration,” an individual must show that he or she is
engaged in the commercial production of a farm prod-
uct. See MCL 286.473(1); Shelby Charter Twp v Papesh,
267 Mich App 92, 101; 704 NW2d 92 (2005).
The statutory language itself, coupled with the intent of
the legislation, indicates that the RTFA is defensive in
nature. See Shelby Charter Twp, 267 Mich App at 110
(noting that a party could establish a “meritorious de-
fense” under the RTFA). Specifically, the language implies
that the RTFA is an affirmative defense akin to immunity.
See Citizens Ins Co of America v Juno Lighting, Inc, 247
Mich App 236, 241; 635 NW2d 379 (2001) (noting that an
affirmative defense “does not controvert the plaintiff’s
establishing a prima facie case, but...denies that the
plaintiff is entitled to recover on the claim for some reason
not disclosed in the plaintiff’s pleadings”) (quotation
marks and citation omitted); Amburgey v Sauder, 238
Mich App 228, 233; 605 NW2d 84 (1999), quoting Black’s
Law Dictionary (6th ed) (defining “immunity” as “ ‘[f]ree-
dom or exemption from penalty, burden, or duty’ ”); MCR
2.111(F)(3)(a) (immunity is an affirmative defense). Gen-
erally, a party raising an affirmative defense has the
burden of proof with respect to the defense. See Palenkas
v Beaumont Hosp, 432 Mich 527, 549; 443 NW2d 354
(1989) (noting that the party raising an affirmative de-
2013] L
IMA
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ATESON
495
fense generally has the burden of production). Accord-
ingly, we hold that a party relying on the RTFA as a
defense to a nuisance action has the burden to prove that
the challenged conduct is protected under the RTFA.
With respect to the applicable standard of proof, the
RTFA is silent and there is no published caselaw ad-
dressing the issue. Generally, “in civil cases, the Legis-
lature’s failure to spell out a standard of proof...usu-
ally require[s] application of the preponderance of the
evidence standard.” In re Moss, 301 Mich App 76, 84;
836 NW2d 182 (2013). In keeping with our state’s
jurisprudence on the applicable standard of proof, we
hold that, if a party asserts the RTFA as a defense, that
party bears the burden to prove by a preponderance of
the evidence that the challenged conduct is protected
under the RTFA.
ii. ELEMENTS OF A SUCCESSFUL RTFA DEFENSE
Having concluded that the RTFA is an affirmative
defense and that the party relying on the defense has the
burden of proof by a preponderance of the evidence, we
now turn to the elements of a successful RTFA defense. As
noted, in order for a party to successfully assert the RTFA
as a defense, that party must prove the following two
elements: (1) that the challenged condition or activity
constitutes a “farm” or “farm operation” and (2) that the
farm or farm operation conforms to the relevant
GAAMPs. We proceed by examining the first element.
(1) “FARM” or “FARM OPERATION”
The RTFA defines “farm” and “farm operation” in
relevant part as follows:
(a) “Farm” means the land, plants, animals, buildings,
structures, including ponds used for agricultural or aquac-
496 302 M
ICH
A
PP
483 [Sept
ultural activities, machinery, equipment, and other appur-
tenances used in the commercial production of farm prod-
ucts.
(b)“Farm operation” means the operation and manage-
ment of a farm or a condition or activity that occurs at any
time as necessary on a farm in connection with the com-
mercial production, harvesting, and storage of farm prod-
ucts, and includes, but is not limited to:
(i) Marketing produce at roadside stands or farm mar-
kets.
(ii) The generation of noise, odors, dust, fumes, and
other associated conditions.
(iii) The operation of machinery and equipment neces-
sary for a farm including, but not limited to, irrigation and
drainage systems and pumps and on-farm grain dryers, and
the movement of vehicles, machinery, equipment, and farm
products and associated inputs necessary for farm opera-
tions on the roadway....
(iv) Field preparation and ground and aerial seeding
and spraying.
(v) The application of chemical fertilizers or organic
materials, conditioners, liming materials, or pesticides.
(vi) Use of alternative pest management techniques.
(vii) The fencing, feeding, watering, sheltering, trans-
portation, treatment, use, handling and care of farm ani-
mals.
(viii) The management, storage, transport, utilization,
and application of farm by-products, including manure or
agricultural wastes.
(ix) The conversion from a farm operation activity to
other farm operation activities.
(x) The employment and use of labor. [MCL 286.472
(emphasis added).]
“Both the definitions for ‘farm’ and ‘farm operation’
employ the terms ‘farm product’ and ‘commercial pro-
duction.’ ” Shelby Charter Twp, 267 Mich App at 100.
2013] L
IMA
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ATESON
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Thus, under “the plain language of the RTFA, a farm or
farming operation cannot be found to be a nuisance if it
is commercial in nature and conforms to the GAAMPs.”
Id. at 101.
The act provides that “farm product” means “those
plants and animals useful to human beings produced by
agriculture and includes, but is not limited to...trees
and tree products....” MCL 286.472(c) (emphasis
added). This Court has previously defined “commercial
production” as “the act of producing or manufacturing
an item intended to be marketed and sold at a profit.”
Shelby Charter Twp, 267 Mich App at 100-101. How-
ever, “there is no minimum level of sales that must be
reached before the RTFA is applicable.” Id. at 101 n 4.
Applying these definitions in the present case shows
that the trees appellants planted on their property are
“farm products.” MCL 286.472(c). However, there was a
genuine issue of fact with regard to whether appellants
proved by a preponderance of the evidence that they
intended to produce the trees and sell them for profit
and whether the alleged nuisances were necessarily
related to the production and sale of the trees. Specifi-
cally, evidence showed that appellants kept heavy
equipment on the property, removed soil from the
property, and had extensive truck traffic at the prop-
erty. However, other evidence showed that appellants
planted a large number of trees on the property, that
appellants intended to open a farm market there, and
that appellants used the machinery to prepare the land
and move farm products. Gough testified that appel-
lants planted 500 to 600 trees, extended the driveway
on the property, dug holes for trees, planned to dig an
irrigation pond, brought in topsoil, baled hay, and
intended to build a barn and a farm market. If so, the
machinery falls within a “farm operation” under MCL
286.472(b)(iii).
498 302 M
ICH
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483 [Sept
In addition, Bateson testified that the property
needed significant improvement because it was wet and
improperly graded. He testified that appellants im-
proved the driveway, installed gravel, laid sod, and
installed a sprinkler system. Bateson testified that
appellants planted a large number of trees and had
cranes, bulldozers, and trucks on the property to dig an
irrigation pond. Appellants could have engaged in these
activities in order to prepare the land for planting,
irrigating, maintaining, harvesting, and selling trees at
a farmer’s market.
Additionally, one witness testified that farmers would
like to have a lot of the equipment that appellants had on
the property. Moreover, Whitman, the Right to Farm
program’s environmental manager, did not testify that
appellants were engaging in activity that fell outside the
scope of the RTFA. Rather, Whitman could not offer an
opinion as to whether appellants were engaged in farming
because he did not know what type of vegetation was
growing, but he testified that vegetation could suggest
ongoing farming. With respect to the vehicles and equip-
ment stored on the property, Whitman could not give an
opinion as to whether they fell under the RTFA because he
did not know what the equipment was used for. Whitman
testified that the RTFA does not limit the amount of
equipment one can use for the production of farm prod-
ucts and that other farms used heavy equipment similar
to the equipment appellants kept at the property. Other
evidence showed that appellants had not violated the soil
erosion ordinance, which suggested that appellants were
not conducting a gravel or soil operation. This evidence
was inconclusive, but, when weighed with all the other
evidence, it could have supported appellants’ contention
that they were engaged in the commercial production of a
farm product. This conflicting material evidence pre-
cluded a grant of summary disposition to either party. The
2013] L
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ATESON
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trial court was required to weigh this evidence together
with all the other evidence and articulate findings as to
whether the alleged nuisances arose from the commercial
production of trees.
We hold that the evidence presented by the parties
required the trial court to weigh all the evidence and
articulate findings of fact to determine whether appel-
lants proved by a preponderance of the evidence that
the alleged nuisance conditions and activities arose
from the commercial production of trees, and the trial
court erred by failing to do so.
8
Remand for further
proceedings is therefore appropriate.
(2) COMPLIANCE WITH GAAMPs
If a party asserting an RTFA defense successfully
proves that they maintain a farm or are engaged in a
farm operation, then the party must also prove that the
farm or farm operation complies with applicable
GAAMPs “according to policy determined by the Michi-
gan commission of agriculture.” MCL 286.473(1). A
party can satisfy this element by introducing credible
testimony or other evidence to show that their farm or
farm operation complies with applicable GAAMPs as set
forth by the Michigan Commission of Agriculture.
In this case, the trial court did not make any findings
with respect to the applicable GAAMPs. On remand, if
the trial court concludes that appellants’ are maintain-
8
Given our resolution of this issue, we decline to address whether
appellants’ activities were permissible under the LTZO. If, on remand, the
trial court determines that appellants are engaged in the commercial
production of a farm product, then the LTZO is inapplicable. See Travis, 249
Mich App at 344. However, if the trial court determines that the RTFA does
not apply, before awarding injunctive relief, it should articulate findings as to
whether appellants are in violation of the LTZO. See id. at 351; MCL
125.3407.
500 302 M
ICH
A
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483 [Sept
ing a farm or farm operation, the trial court must then
determine whether the farm or farm operation complies
with the applicable GAAMPs. Appellants bear the bur-
den to prove compliance with the GAAMPs by a pre-
ponderance of the evidence.
In sum, the trial court abused its discretion by
granting Lima injunctive relief in that it erred as a
matter of law when it failed to make the requisite
findings under the RTFA. In re Waters Drain Drainage
Dist, 296 Mich App 214, 220; 818 NW2d 478 (2012)
(stating that a court “by definition abuses its discretion
when it makes an error of law”). Accordingly, remand
for further proceedings is appropriate.
C. EVIDENTIARY ERROR
Appellants next argue that the trial court abused its
discretion when it refused to allow the testimony of a
rebuttal witness they proffered at the evidentiary hear-
ing. We review a trial court’s decision to admit or
exclude evidence, including rebuttal testimony, for an
abuse of discretion. Chmielewski v Xermac, Inc, 457
Mich 593, 614; 580 NW2d 817 (1998).
During the evidentiary hearing, appellants attempted
to call Robert Pesko. Counsel for appellants did not
identify Pesko as a testifying witness during discovery.
Counsel represented that Pesko, an engineer, would tes-
tify regarding the type of materials removed from the
property as well as the amount of material that could have
been removed from the property. Counsel stated that
Pesko’s testimony would rebut witnesses who testified for
Lima that approximately 500 truckloads of material had
been removed from the property. The trial court excluded
the testimony because Pesko was not listed as a witness
and because it reasoned that Pesko’s testimony was not
rebuttal testimony. Later during the hearing, Lima called
2013] L
IMA
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ATESON
501
Jeffrey Wallace, the manager and zoning administrator
for the village of Manchester. Wallace was called to rebut
statements Bateson made about an unrelated industrial
site that Bateson operated in Manchester. Though Lima
had not previously identified Wallace as a witness, the
trial court allowed the testimony, indicating that it would
gauge from the testimony whether it was rebuttal testi-
mony.
In this case, the trial court abused its discretion by
excluding Pesko’s testimony because it erred as a matter
of law by concluding that Pesko’s testimony did not
amount to rebuttal. See In re Waters Drain Drainage
Dist, 296 Mich App at 220. “Rebuttal testimony is used to
contradict, explain, or refute evidence presented by the
other party in order to weaken it or impeach it.” Wini-
emko v Valenti, 203 Mich App 411, 418; 513 NW2d 181
(1994). “The purpose of rebuttal evidence is to undercut
an opponent’s case, and a party may not introduce evi-
dence competent as part of his case in chief during
rebuttal unless permitted to do so by the court.” Id.at
418-419. In this case, Lima offered testimony that appel-
lants had removed about 500 truckloads of material from
the property. Pesko’s testimony regarding the amount of
material removed from the property could have contra-
dicted Lima’s evidence. Therefore, the trial court erred as
a matter of law by concluding that the testimony was not
rebuttal and excluding it on that ground. The legal error
amounted to an abuse of discretion. See In re Waters
Drain Drainage Dist, 296 Mich App at 220. On remand,
the trial court should consider Pesko’s testimony before
articulating findings under the RTFA.
D. EQUAL PROTECTION
Appellants’ final argument is that Lima improperly
singled them out as a “class of one” and denied them
502 302 M
ICH
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483 [Sept
equal protection and due process. We review appellants’
unpreserved claim of constitutional error for plain error
affecting the outcome of the proceeding. In re Applica-
tion of Consumers Energy Co, 278 Mich App 547, 568;
753 NW2d 287 (2008). We review de novo constitutional
questions such as whether a party was denied due
process and equal protection under the law. Shepherd
Montessori Ctr Milan v Ann Arbor Charter Twp, 486
Mich 311, 317; 783 NW2d 695 (2010).
“The equal protection clauses of the Michigan and
United States constitutions provide that no person shall
be denied the equal protection of the law.” Id. at 318;
see also US Const, Am XIV; Const 1963, art 1, § 2. “The
Equal Protection Clause requires that all persons simi-
larly situated be treated alike under the law.” Shepherd
Montessori Ctr Milan, 486 Mich at 318. To be consid-
ered similarly situated, “the challenger and his com-
parators must be ‘prima facie identical in all relevant
respects or directly comparable... in all material re-
spects.’ ” United States v Green, 654 F3d 637, 651 (CA 6,
2011) quoting United States v Moore, 543 F3d 891 (CA
7, 2008). A “class of one” may initiate an equal protec-
tion claim by alleging that he or she “has been inten-
tionally treated differently from others similarly situ-
ated and that there is no rational basis for the
difference in treatment.” Village of Willowbrook v
Olech, 528 US 562, 564; 120 S Ct 1073; 145 L Ed 2d
1060 (2000).
Appellants argue that Lima intentionally treated
them differently from other similarly situated individu-
als. Specifically, appellants refer to Howard Sias and
Kenneth Prielipp, who both testified at the hearing.
Appellants provide no factual analysis of how these
individuals are similarly situated, and the record does
not support the assertion that they were. There is little
2013] L
IMA
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B
ATESON
503
similarity between appellants and Sias and Prielipp.
Evidence did not show that Sias and Prielipp main-
tained the same amount and type of equipment on their
property as appellants did, and there was no evidence to
show that Sias and Prielipp were engaged in the same
type of work on their properties. In sum, appellants
were not denied their right to equal protection because
they have failed to show that they were treated differ-
ently from other similarly situated individuals. See
Shepherd Montessori Ctr Milan, 486 Mich at 318.
Accordingly, appellants’ assertion that the alleged equal
protection violation amounted to a deprivation of due
process also fails.
We reverse and remand for the trial court to conduct,
within 91 days after receipt of this opinion, further
proceedings consistent with this opinion. We retain
jurisdiction. Neither party having prevailed in full,
neither may tax costs. MCR 7.219.
J
ANSEN
,P.J., and W
HITBECK
and B
ORRELLO
, JJ., con-
curred.
504 302 M
ICH
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483 [Sept
MAPLE BPA, INC v BLOOMFIELD CHARTER TOWNSHIP
Docket No. 302931. Submitted June 11, 2013, at Detroit. Decided
August 6, 2013. Approved for publication September 19, 2013,
at 9:05 a.m. Leave to appeal sought.
Maple BPA, Inc, brought an action in the Oakland Circuit Court
against Bloomfield Charter Township, seeking a declaratory judg-
ment that a township zoning ordinance on which the Michigan
Liquor Control Commission based its decision to deny plaintiff’s
application for a liquor license was unconstitutional. The court,
James M. Alexander, J., granted defendant’s motions for summary
disposition on the bases that the ordinance did not violate plain-
tiff’s rights to due process and equal protection, state law did not
preempt the ordinance, and the ordinance did not violate the
Michigan Zoning Enabling Act, MCL 125.3101 et seq. Plaintiff
appealed.
The Court of Appeals held:
1. The Michigan Liquor Control Commission’s decision to
recognize local zoning authority indicates that the Legislature did
not intend to preempt every local zoning statute that concerns
alcoholic beverage sales. The Legislature has not expressly pro-
vided that its authority to regulate the field of liquor control is
exclusive.
2. To the extent that the Legislature has directly spoken on the
issue, Bloomfield Township’s zoning ordinance is not more restric-
tive than the state’s statutory requirements. The ordinance mir-
rors the statutory language and does not provide any further
constraint, or prohibit what the statute permits. The state statute
and the local ordinance do not directly conflict.
3. The Michigan Zoning Enabling Act provides that regula-
tions must be uniform for each class of land or buildings, dwell-
ings, and structures within a district. MCL 125.3201(2). The act
authorizes localities to provide for special land uses within a
zoning district. MCL 125.3502(1). A locality’s identification of uses
and activities that are special uses is consistent with the unifor-
mity requirement of the act.
2013] M
APLE
BPA
V
B
LOOMFIELD
T
WP
505
4. The township’s zoning ordinance treats automobile service
stations as a special class of buildings within the general business
zoning district. The ordinance applies to all, not only to some,
automobile service stations. The ordinance does not violate the
act’s uniformity requirement by treating a special class of build-
ings differently than other classes of buildings.
5. Plaintiff provided no evidence that restricting the sale of
alcoholic beverages at automobile service stations fails to advance
defendant’s stated purposes, including reducing alcohol-related
deaths or injuries. The trial court properly granted defendant
summary disposition with regard to plaintiff’s due process claim
on the basis that plaintiff failed to show that there was a question
of fact concerning whether the ordinance was arbitrary and
capricious.
6. The trial court properly granted defendant summary dispo-
sition with regard to plaintiff’s equal protection claim on the basis
that plaintiff failed to create a question of fact concerning whether
defendant’s ordinance was arbitrary and unreasonable.
Affirmed.
1. C
ONSTITUTIONAL
L
AW —
S
TATUTES —
O
RDINANCES —
P
REEMPTION
.
A state statute preempts a local regulation if the local regulation
directly conflicts with the state statute or the state statute
completely occupies the field that the local regulation attempts to
regulate; four guidelines are used to determine whether a statute
completely occupies a field: first, there is no doubt that municipal
regulation is preempted when the state law expressly provides that
the state’s authority to regulate in a specified area of the law is to
be exclusive, second, preemption of a field of regulation may be
implied upon an examination of legislative history, third, the
pervasiveness of the state regulatory scheme may support a
finding of preemption, and fourth, the nature of the regulated
subject matter may demand exclusive state regulation to achieve
the uniformity necessary to serve the state’s purpose or interest.
2. C
ONSTITUTIONAL
L
AW —
S
TATUTES —
O
RDINANCES —
P
REEMPTION
.
State law preempts a local regulation when the regulation directly
conflicts with a state statute; a direct conflict exists when a local
regulation permits what the state statute prohibits or prohibits
what the statute permits.
3. Z
ONING —
M
ICHIGAN
Z
ONING
E
NABLING
A
CT —
U
NIFORMITY OF
R
EGULATIONS
.
The Michigan Zoning Enabling Act provides that the zoning regu-
lations of a municipality shall be uniform for each class of land or
506 302 M
ICH
A
PP
505 [Sept
buildings, dwellings, and structures within a district; the act
authorizes localities to provide for special land uses within a
zoning district and the locality’s identification of uses and activi-
ties that are special uses is consistent with the uniformity require-
ment of the act (MCL 125.3201[2]; MCL 125.3502[1]).
4. Z
ONING —
C
ONSTITUTIONAL
L
AW —
P
RESUMPTION OF
C
ONSTITUTIONALITY
.
Zoning ordinances are presumed to be constitutional exercises of
governmental power; a party challenging a zoning ordinance has
the burden to prove that the ordinance is an arbitrary and
unreasonable restriction on the owner’s use of his or her property;
to be arbitrary and capricious, it must appear that the clause
attacked is an arbitrary fiat, a whimsical ipse dixit, and that there
is no room for a legitimate difference of opinion concerning its
reasonableness.
Friedlaender Rogowski, PLC (by Susan K. Fried-
laender and Joseph M. Rogowski, II), and Ronald E.
Reynolds for plaintiff.
Secrest Wardle (by William P. Hampton and Shannon
K. Ozga) and Johnson, Rosati, LaBarge, Aseltiyne &
Field, PC (by Carol A. Rosati and Timothy S. Wilhelm),
for defendant.
Before: W
HITBECK
,P.J., and M
ETER
and D
ONOFRIO
,JJ.
P
ER
C
URIAM
. Plaintiff, Maple BPA, Inc, appeals as of
right the circuit court’s order granting summary dispo-
sition in favor of defendant, Bloomfield Charter Town-
ship (Bloomfield Township). After the Michigan Liquor
Control Commission (the Commission) denied Maple
BPA’s application for a liquor license on the basis that
it did not comply with Bloomfield Township’s zoning
ordinance (the ordinance), Maple BPA sought a declara-
tory judgment that the ordinance was unconstitutional.
Bloomfield Township ultimately moved for summary
disposition, which the trial court granted. The trial
court based its ruling on its conclusion that state law
2013] M
APLE
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V
B
LOOMFIELD
T
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507
did not preempt the ordinance and that the ordinance
did not violate the Michigan Zoning Enabling Act.
1
We
affirm.
I. FACTS
A. FACTUAL BACKGROUND
Maple BPA’s property contains a mixture of land uses,
including gasoline fuel pumps and a convenience food
store. Under the ordinance, “retail package outlets” are a
permitted use in Maple BPA’s zoning district.
2
A retail
package outlet is any building in a commercial business
district that is allowed to sell packaged alcohol as an
ancillary use of the business. Maple BPA desired to sell
packaged alcohol on its premises and in March 2007 it
applied to the Commission for a specially designated
merchant license. A specially designated merchant license
allows the holder to engage in the retail sale of beer and
wine for off-premises consumption.
3
The Commission may
not prohibit an applicant for a specially designated mer-
chant license from owning fuel pumps if, among other
conditions, the location where customers purchase alcohol
is 50 or more feet from where customers dispense fuel.
4
Bloomfield Township subsequently passed a resolu-
tion that stated that it did not want to allow “gas
stations to sell beer and wine” and that Maple BPA’s
cash registers were too close to where customers dis-
pensed fuel. Bloomfield Township requested that the
Bloomfield Township Police Department inspect Maple
BPA’s premises.
1
MCL 125.3101 et seq.
2
Bloomfield Township Ordinance, § 42-3.1.6(B-2)(B)(i) and § 42-
3.1.7(B-3)(B)(i).
3
MCL 436.1111(13).
4
MCL 436.1541(1)(b).
508 302 M
ICH
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PP
505 [Sept
Bloomfield Township Police Captain Steve Cook de-
termined that Maple BPA’s premises did not conform
with what was then Bloomfield Township Ordinance
§ 42-307, which required all retail package outlets to be
at least 2,640 feet from each other. Bloomfield Town-
ship, in turn, informed the Commission that Maple
BPA’s request did not comply with its zoning ordinance
and that the distance between Maple BPA’s fuel pumps
and its cash registers was 47 feet.
The Commission denied Maple BPA’s application on
October 29, 2008, finding that Maple BPA did not comply
with Bloomfield Township’s zoning ordinance. Maple BPA
requested a formal hearing, which the Commission held
on March 26, 2009. Subsequently, the Commission af-
firmed its denial of Maple BPA’s application.
Bloomfield Township’s planning commission then
amended the ordinance. The amendment removed the
spacing requirement for retail package outlets and
banned the sale of alcoholic beverages at “automobile
service stations” entirely. Maple BPA sought leave to
appeal the Commission’s decision, which the trial court
denied on the basis that Maple BPA’s claims were more
appropriately brought in a declaratory judgment action.
B. PROCEDURAL HISTORY
Maple BPA filed its complaint on February 16, 2010,
seeking a declaratory judgment that state law preempts
the ordinance, the ordinance violates the Michigan
Zoning Enabling Act, and the ordinance violates Maple
BPA’s rights to due process and equal protection under
the act.
5
After the trial court denied Bloomfield Town-
ship’s initial motion for summary disposition under
MCR 2.116(C)(8), Bloomfield Township moved for sum-
5
Id.
2013] M
APLE
BPA
V
B
LOOMFIELD
T
WP
509
mary disposition under MCR 2.116(C)(10). The trial
court granted Bloomfield Township’s motion regarding
Maple BPA’s constitutional claims, concluding that
Maple BPA failed to show that the ordinance was
arbitrary and capricious.
In July 2010, Bloomfield Township again amended the
ordinance. As amended, the ordinance provides that au-
tomobile service stations may sell alcoholic beverages if
they meet certain standards,
6
including that (1) alcohol is
not sold less than 50 feet from where vehicles are fueled,
(2) no drive-thru operations are conducted in the same
building, (3) the store meets minimum floor area and lot
size requirements, (4) the store has frontage on a major
thoroughfare and is not adjacent to a residentially zoned
area, (5) the store does not perform any vehicle service
operations that would require customers to wait on the
premises, and (6) the store is either located in a shopping
center or maintains a minimum amount of inventory.
7
After Bloomfield Township revised the ordinance, it re-
newed its motion for summary disposition.
The trial court granted Bloomfield Township’s renewed
motion, concluding that state law did not preempt the
ordinance as amended and that it did not violate the
Michigan Zoning Enabling Act. It also noted that it had
previously dismissed Maple BPA’s constitutional claims.
II. PREEMPTION
A. STANDARD OF REVIEW
This Court reviews de novo questions of law, includ-
ing whether state law preempts an ordinance.
8
6
Bloomfield Township Ordinance, § 42-4.23.
7
Id.
8
Van Buren Charter Twp v Garter Belt, Inc, 258 Mich App 594, 602;
673 NW2d 111 (2003).
510 302 M
ICH
A
PP
505 [Sept
B. FIELD PREEMPTION
1. LEGAL STANDARDS
State law preempts a local regulation if (1) the local
regulation directly conflicts with a state statute or (2)
the statute completely occupies the field that the local
regulation attempts to regulate.
9
The Michigan Su-
preme Court has established four guidelines to deter-
mine whether a statute completely occupies a field:
First, where the state law expressly provides that the
state’s authority to regulate in a specified area of the law is
to be exclusive, there is no doubt that municipal regulation
is pre-empted.
Second, pre-emption of a field of regulation may be
implied upon an examination of legislative history.
Third, the pervasiveness of the state regulatory scheme
may support a finding of pre-emption. While the pervasive-
ness of the state regulatory scheme is not generally suffi-
cient by itself to infer pre-emption, it is a factor which
should be considered as evidence of pre-emption.
Fourth, the nature of the regulated subject matter
may demand exclusive state regulation to achieve the
uniformity necessary to serve the state’s purpose or
interest.
[
10
]
2. APPLYING THE STANDARDS
Maple BPA contends that the state has granted the
Commission exclusive control over the sale of alcoholic
beverages, and therefore state law expressly preempts
the ordinance. We disagree.
The Michigan Constitution provides that the Legis-
lature may create a Liquor Control Commission, which
9
McNeil v Charlevoix Co, 275 Mich App 686, 697; 741 NW2d 27 (2007).
10
People v Llewellyn, 401 Mich 314, 323-324; 257 NW2d 902 (1977)
(citations omitted).
2013] M
APLE
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V
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WP
511
“shall exercise complete control of the alcoholic beverage
traffic within this state....”
11
Accordingly, the Legisla-
ture created the Commission and gave it “the sole right,
power, and duty to control the alcoholic beverage traffic
and traffic in other alcoholic liquor within this state,
including the...sale thereof.”
12
Maple BPA asserts that this Court’s decision in
Sherman Bowling Ctr v Roosevelt Park
13
is analogous
to this case. In that case, an ordinance required a
business to obtain a local liquor license—as well as a
state liquor license—to sell alcohol at outdoor danc-
ing events.
14
We held that “the city ordinance in this
case is preempted” because this Court could “find no
provision of the liquor law which would allow cities to
regulate the sale of alcoholic beverages by establish-
ments holding outdoor events at which entertain-
ment is provided.”
15
We conclude that Sherman Bowling Ctr is distin-
guishable because it did not involve a zoning ordi-
nance and the Court in that case could not locate
authority by which the state recognized local control
of the area in question. Here, the Michigan Adminis-
trative Code explicitly provided that an application
for a liquor license “shall be denied if the commission
is notified, in writing, that the application does not
meet all appropriate... local... zoning... ordi-
nances....”
16
The ordinance in question is a local
11
Const 1963, art 4, § 40.
12
MCL 436.1201(2).
13
Sherman Bowling Ctr v Roosevelt Park, 154 Mich App 576, 584-585;
397 NW2d 839 (1986).
14
Id. at 579-580.
15
Id. at 584-585.
16
Mich Admin Code, R 436.1003 and former R 436.1005(3) (repealed
effective February 29, 2008).
512 302 M
ICH
A
PP
505 [Sept
zoning ordinance. But even were Sherman Bowling
Ctr not distinguishable, it was decided in 1986. This
Court must follow published opinions of this Court
decided after November 1, 1990.
17
In contrast, this Court in Jott, Inc v Clinton Charter
Twp did consider whether the liquor control provisions
of the Michigan Administrative Code preempted a local
zoning ordinance.
18
In Jott, this Court concluded that
the Legislature did not intend to preempt the field of
liquor control.
19
We reasoned that “it has long been
recognized that local communities possess ‘extremely
broad’ powers to regulate alcoholic beverage traffic
within their bounds through the exercise of their gen-
eral police powers, subject to the authority of the
[Commission] when a conflict arises.”
20
In the context of
that zoning regulation, we noted that the Commission
explicitly recognized local authority in the area prohib-
ited by the local regulation, which supported our con-
clusion that the Legislature did not intend preemption
in that context.
21
We conclude that the Commission’s decision to rec-
ognize local zoning authority indicates that the Legis-
lature did not intend to preempt every local zoning
statute that concerns alcoholic beverage sales. Thus, we
conclude that the state has not expressly provided that
its authority to regulate the field of liquor control is
exclusive.
17
Marilyn Froling Revocable Living Trust v Bloomfield Hills Country
Club, 283 Mich App 264, 285; 769 NW2d 234 (2009); MCR 7.215(J)(1).
18
Jott, Inc v Clinton Charter Twp, 224 Mich App 513, 544; 569 NW2d
841 (1997).
19
Id. at 545.
20
Id.; see Bundo v Walled Lake, 395 Mich 679, 699-700; 238 NW2d 154
(1976).
21
Jott, 224 Mich App at 544; also see Van Buren Charter Twp, 258 Mich
App at 608.
2013] M
APLE
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513
C. CONFLICT PREEMPTION
1. LEGAL STANDARDS
State law preempts a local regulation when that
regulation directly conflicts with a state statute.
22
“A
direct conflict exists between a local regulation and a
state statute when the local regulation permits what
the statute prohibits or prohibits what the statute
permits.”
23
2. APPLYING THE STANDARDS
Maple BPA contends that the state statute and the
ordinance directly conflict because the zoning ordi-
nance is more strict than the state’s statutory require-
ments. We disagree.
In Noey v Saginaw,
24
the Michigan Supreme Court
concluded that a local ordinance that prohibited the
sale of alcoholic beverages between certain hours that a
state statute allowed such sales was invalid to the
extent that it was more strict than the state statute.
25
We conclude that Noey is distinguishable. In Noey,
the local ordinance prohibited selling alcoholic bever-
ages during a time that the Legislature had expressly
permitted alcoholic beverages to be sold. Unlike in
Noey, here, the Legislature has not expressly spoken
concerning the sale of alcohol in buildings with drive-
thru windows, the minimum building area of buildings
at which alcohol is sold, or the number of parking
spaces required for a building from which alcohol is
sold. To the extent that the Legislature has expressly
spoken on this issue, Bloomfield Township’s zoning
22
McNeil, 275 Mich App at 697.
23
Id.
24
Noey v Saginaw, 271 Mich 595; 261 NW 88 (1935).
25
Id. at 597.
514 302 M
ICH
A
PP
505 [Sept
ordinance is not more restrictive. The ordinance mir-
rors the statutory language—it does not provide any
further constraint, or prohibit what the statute per-
mits. Therefore, we conclude that in this case, the state
statute and the local regulation do not directly conflict.
III. THE MICHIGAN ZONING ENABLING ACT
A. STANDARD OF REVIEW
We review de novo whether an ordinance complies
with the Michigan Zoning Enabling Act (the Act),
26
because our analysis involves questions of law.
27
B. LEGAL STANDARDS
Municipalities have the authority to regulate land
use through zoning only because the Legislature has
specifically granted them that authority in the Act.
28
Thus, a municipality can exercise zoning authority
“only to the limited extent authorized by that legisla-
tion.”
29
The Act provides that “regulations shall be
uniform for each class of land or buildings, dwellings,
and structures within a district.”
30
C. APPLYING THE STANDARDS
Maple BPA contends that Bloomfield Township’s
zoning ordinance violates the uniformity provisions of
the Act, because the ordinance’s requirements for retail
package outlets are not uniform. We disagree.
26
MCL 125.3101 et seq.
27
Whitman v Galien Twp, 288 Mich App 672, 678; 808 NW2d 9 (2010).
28
Id. at 679.
29
Id.
30
MCL 125.3201(2).
2013] M
APLE
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515
The Act authorizes localities to provide for special
land uses within a zoning district.
31
A locality’s identi-
fication of uses and activities that are special uses is
consistent with the Act’s uniformity requirement.
32
Here, Bloomfield Township’s zoning regulations treat
automobile service stations as a special class of build-
ings within the general business zoning district.
33
The
ordinance does not apply only to some automobile
service stations—it applies to all automobile service
stations. We conclude that the ordinance does not
violate the Act’s uniformity requirement by treating a
special class of buildings differently than other classes
of buildings.
Here, Maple BPA has failed to demonstrate that
Bloomfield Township’s zoning ordinance is not uniform
concerning the special use of automobile service sta-
tions. Additionally, we note that the uniformity require-
ment generally prevents a locality from making unrea-
sonable classifications within a zoning district, such as
by allowing a certain type of land use in parts of one
zoning district, but not in other parts of the same
zoning district.
34
The ordinance does not provide that
automobile service stations or retail package outlets
may be located in one part of Bloomfield Township’s
general business district, but not in other parts.
Maple BPA appears to argue that the ordinance
violates the Act because it is actually an improper local
business licensing requirement. We conclude that
Maple BPA has not properly presented the argument
31
MCL 125.3502(1); Whitman, 288 Mich App at 680.
32
Whitman, 288 Mich App at 683.
33
Bloomfield Township Ordinance, § 42-3.1.7(C)(iv); Bloomfield Town-
ship Ordinance, § 42-4.23.
34
See Oshtemo Charter Twp v Central Advertising Co, 125 Mich App
538, 543; 336 NW2d 823 (1983).
516 302 M
ICH
A
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505 [Sept
for our review. A party abandons an issue when it fails
to include the issue in the statement of questions
presented in its appellate brief and fails to provide
authority to support its assertions.
35
This issue is not
contained in Maple BPA’s statement of questions pre-
sented, and it has provided little authority or analysis to
support this assertion. We conclude that Maple BPA has
abandoned this argument.
IV. MAPLE BPA’S CONSTITUTIONAL CLAIMS
A. STANDARD OF REVIEW
This Court reviews de novo the trial court’s determina-
tion whether a zoning decision is unconstitutional.
36
We
also review de novo the trial court’s determination on a
motion for summary disposition.
37
A party is entitled to
summary disposition under MCR 2.116(C)(10) if “there is
no genuine issue as to any material fact, and the moving
party is entitled to judgment . . . as a matter of law.”
38
A
genuine issue of material fact exists if, when viewing the
record in the light most favorable to the nonmoving party,
reasonable minds could differ on the issue.
39
B. DUE PROCESS
1. LEGAL STANDARDS
Both the United States and Michigan Constitutions
provide that the state shall not deprive any person of
35
Caldwell v Chapman, 240 Mich App 124, 132; 610 NW2d 264 (2000).
36
See Kropf v Sterling Hts, 391 Mich 139, 152-153; 215 NW2d 179
(1974).
37
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
38
MCR 2.116(C)(10); Maiden, 461 Mich at 120.
39
Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8
(2008).
2013] M
APLE
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517
life, liberty, or property without due process of law.
40
The Due Process Clause protects the liberty and prop-
erty interests of individuals from arbitrary government
actions.
41
We presume that zoning ordinances are constitu-
tional exercises of governmental power.
42
The party
challenging the ordinance has the burden to prove that
it is “ ‘an arbitrary and unreasonable restriction upon
the owner’s use of his property.’ ”
43
To be arbitrary and
capricious, “ ‘[i]t must appear that the clause attacked
is an arbitrary fiat, a whimsical ipse dixit, and that
there is no room for a legitimate difference of opinion
concerning its reasonableness.’ ”
44
2. APPLYING THE STANDARDS
Maple BPA contends that Bloomfield Township’s
ordinance in this case is arbitrary and capricious. Maple
BPA concedes that regulating the use of alcohol is
rationally related to public health and safety, but con-
tends that Bloomfield Township has not shown that its
ordinance advances its stated purposes.
We conclude that the trial court properly granted
summary disposition. Maple BPA did not carry its
burden of showing that there is a question of fact
concerning whether the ordinance is arbitrary and
capricious. “ ‘The burden [is] not on the defendants to
establish the relationship, but upon the plaintiff to
40
US Const, Am XIV; Const 1963, art 1, § 17; People v Sierb, 456 Mich
519, 522; 581 NW2d 219 (1998).
41
Gen Motors Corp v Dep’t of Treasury, 290 Mich App 355, 370; 803
NW2d 698 (2010).
42
Kropf, 391 Mich at 162.
43
Id., quoting Brae Burn, Inc v Bloomfield Hills, 350 Mich 425, 432; 86
NW2d 166 (1957).
44
Kropf, 391 Mich at 166, quoting Brae Burn, Inc, 350 Mich at 432.
518 302 M
ICH
A
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505 [Sept
show the lack of it.’ ”
45
Here, the burden is not on
Bloomfield Township to prove the validity of its ordinance
with evidence. The burden is on Maple BPA to show that
there is no relationship between Bloomfield Township’s
goals and its means of attaining them. Maple BPA pro-
vided no evidence that restricting the sale of alcoholic
beverages at service stations fails to advance Bloomfield
Township’s stated purposes of reducing alcohol-related
deaths and injuries or fails to advance its other stated
reasons. Because Maple BPA failed to raise a question of
fact concerning the reasonableness of Bloomfield Town-
ship’s ordinance, the trial court properly granted sum-
mary disposition.
C. EQUAL PROTECTION
Maple BPA asserts that there is no rational reason to
treat a business with fuel pumps differently than a
business without fuel pumps. We conclude that this
equal protection challenge is also without merit.
The Michigan and United States Constitutions provide
coextensive provisions on equal protection.
46
Both guar-
antee equal protection of the law.
47
When a party is not a
member of a protected class and does not allege a violation
of a fundamental right, “the challenged regulatory
scheme will survive equal protection analysis if it is
rationally related to a legitimate governmental interest.”
48
“[T]he party raising the equal protection challenge has
the burden of proving that the challenged law is arbitrary
and thus irrational.”
49
45
Kropf, 391 Mich at 156, quoting Northwood Props Co v Royal Oak
City Inspector, 325 Mich 419, 422-423; 39 NW2d 25 (1949).
46
Const 1963, art 1, § 2; US Const, Am XIV; Dowerk v Oxford Charter
Twp, 233 Mich App 62, 73; 592 NW2d 724 (1998).
47
Dowerk, 233 Mich App at 73.
48
Id.; see Frame v Nehls, 452 Mich 171, 183; 550 NW2d 739 (1996).
49
Dowerk, 233 Mich App at 73.
2013] M
APLE
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V
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T
WP
519
For the reasons stated in our due process analysis, we
conclude that the trial court did not err by granting
summary disposition on Maple BPA’s due process claim.
Though Maple BPA asserts that the ordinance’s stated
reasons for distinguishing automobile service stations
from other types of buildings or land uses are merely
“irrational prejudices,” it provided no evidence from
which the trial court could determine that a question of
fact existed concerning the arbitrariness of the ordi-
nance. We conclude that the trial court properly granted
summary disposition because Maple BPA failed to cre-
ate a question of fact concerning whether Bloomfield
Township’s ordinance was arbitrary and unreasonable.
V. CONCLUSION
We conclude that state law does not preempt the field
of liquor control regulation and that Maple BPA pro-
vided no evidence from which the trial court could
conclude that Bloomfield Township’s ordinance was
arbitrary and capricious. We also conclude that Bloom-
field Township’s ordinance is uniform under the Michi-
gan Zoning Enabling Act and that it is constitutional.
We affirm.
W
HITBECK
,P.J., and M
ETER
and D
ONOFRIO
, JJ., con-
curred.
520 302 M
ICH
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505 [Sept
GRIMES v VAN HOOK-WILLIAMS
Docket No. 314723. Submitted June 11, 2013, at Detroit. Decided
September 19, 2013, at 9:10 a.m.
Aaron Grimes brought an action in the Macomb Circuit Court
against Shawnita Van Hook-Williams, alleging that he was the
biological father of a child conceived and born while she was
married to Dante Williams and seeking to establish paternity
under the Revocation of Paternity Act, MCL 722.1431 et seq.
Grimes requested (1) a DNA test, (2) an order acknowledging him
as the biological father and modifying the child’s birth certificate,
(3) joint legal and physical custody of the child, and (4) parenting
time. Van Hook-Williams contended that Grimes lacked standing
to bring an action under the act because he knew that she was
married to Williams at the time of the child’s conception and that
she intended to remain married to Williams. The Friend of the
Court referee found that Van Hook-Williams had informed Grimes
when their relationship began that she was married. The referee
recommended that Grimes’s request for DNA testing be denied
because under MCL 722.1441(3)(a)(i), an alleged father may only
file a paternity action if he did not know or have a reason to know
that the mother was married at the time of conception. Grimes
requested a de novo hearing, arguing that the referee’s interpre-
tation of the act violated his constitutional rights. The court,
Kathryn A. Viviano, J., granted Van Hook-Williams summary
disposition, and Grimes appealed.
The Court of Appeals held:
1. The circuit court properly granted summary disposition in
favor of Van Hook-Williams because Grimes lacked standing to
commence this action under the Revocation of Paternity Act.
Under MCL 722.1433(4), Williams was presumed to be the child’s
father by virtue of his marriage to the child’s mother at the time
of the child’s conception or birth. Under MCL 722.1433(3), Grimes
was an “alleged father,” that is, someone who by his actions could
have fathered the child. MCL 722.1441(3)(a) provides in part that
if a child has a presumed father, a court may determine that the
child was born out of wedlock for purposes of establishing the
child’s paternity if the alleged father timely files an action and
2013] G
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OOK
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(1) the alleged father did not know or have reason to know that the
mother was married at the time of conception and (2) the pre-
sumed father, the alleged father, and the child’s mother at some
time mutually and openly acknowledged a biological relationship
between the alleged father and the child. There was no genuine
factual dispute that Grimes knew or had reason to know that Van
Hook-Williams was married to Williams at the time of the child’s
conception.
2. The standing requirements in the Revocation of Paternity
Act are constitutional. The liberties protected by substantive due
process under the Fourteenth Amendment and Const 1963, art 1,
§ 17 include the right to have children and the right to direct their
education and upbringing. This fundamental liberty interest,
however, has not been extended to a putative father who seeks to
establish paternity with respect to a child conceived and born
during the mother’s marriage to another man. In Michigan, a
putative father of a child born in wedlock has no constitutional
due-process right to claim paternity under the Revocation of
Paternity Act or any other statute and request custody or parent-
ing time, regardless of a biological connection to the child and the
existence of a parent-child relationship.
3. Grimes’s constitutional right to equal protection under the
Fourteenth Amendment and Const 1963, art 1, § 2 was not
violated. Under MCL 722.1441(1)(a) and (3)(a), if a child was
conceived or born during an extant marriage and the child’s
mother, presumed father, and alleged father mutually and openly
acknowledged a biological relationship between the alleged father
and the child, the child’s mother or the alleged father may
commence an action under certain circumstances seeking to
revoke the presumption of paternity that attaches to the presumed
father. An alleged father, however, may commence an action under
the act only if he did not know or have reason to know that the
mother was married at the time of conception. Grimes argued that
this statutory distinction between the rights of the mother and the
alleged father violated his right to equal protection, contending
that because a child’s mother and alleged father are similarly
situated, they must be afforded equal standing to commence an
action under the act. Equal-protection principles require a show-
ing that the challenged legislation or governmental action treats
similarly situated individuals differently. Gender-based classifica-
tions will be upheld when men and women are not actually
similarly situated in the area covered by the legislation in question
and the statutory classification is realistically based on the differ-
ences in their situations. Fathers and mothers are not similarly
522 302 M
ICH
A
PP
521 [Sept
situated with regard to the proof of biological parenthood, and the
Legislature’s decision to prescribe different statutory standing
requirements for a child’s mother and alleged father in the
Revocation of Paternity Act does not offend equal protection.
Affirmed.
C
ONSTITUTIONAL
L
AW —
P
ATERNITY —
R
EVOCATION OF
P
ATERNITY
A
CT —
S
TAND-
ING —
P
UTATIVE
F
ATHERS —
C
HILDREN
B
ORN IN
W
EDLOCK
.
The standing requirements in the Revocation of Paternity Act,
which include the requirement that the putative father of a child
conceived and born during the mother’s marriage to another man
show that he did not know or have reason to know that the mother
was married at the time of conception, do not deny the putative
father due process or equal protection under the law (US Const,
Am XIV; Const 1963, art 1, §§ 2 and 17; MCL 722.1431 et seq.).
Ari Kresch and Blaney & Condon PLLC (by Mary
Blaney) for plaintiff.
Family Legal Centers of Michigan, PLC (by LaVonne
Banister Jackson), for defendant.
Before: J
ANSEN
,P.J., and C
AVANAGH
and M
ARKEY
,JJ.
J
ANSEN
,P.J. In this paternity action, plaintiff appeals
by right the circuit court’s order granting summary
disposition in favor of defendant and dismissing plain-
tiff’s claims. For the reasons set forth in this opinion,
we affirm.
I
At issue in this case is the paternity of defendant’s
minor child (the child), born November 4, 2011. On
September 12, 2012, plaintiff filed a complaint and
motion for DNA testing in the circuit court, alleging
that he was the biological father of the child. Plaintiff
acknowledged that defendant was married to Dante
Williams (Williams) “[f]rom the time of conception until
the time of the child’s birth,” but alleged that defendant
2013] G
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and Williams were separated at the time of the child’s
birth. Plaintiff alleged that he and plaintiff had “held
themselves out as a couple” and “discussed plans to
marry.” In his attached affidavit, plaintiff averred that
the child was conceived in April 2011 and that defen-
dant “did not wear a wedding ring or conduct herself as
a married woman.” Plaintiff sought to establish pater-
nity under the Revocation of Paternity Act, MCL
722.1431 et seq. He requested (1) a DNA test to estab-
lish paternity,
1
(2) an order acknowledging him as the
child’s biological father and modifying the child’s birth
certificate, (3) joint legal and physical custody of the
child, and (4) parenting time.
Defendant filed an answer in which she denied that
she was ever separated from Williams and denied that
she had ever held herself out as plaintiff’s girlfriend.
She alleged that she and plaintiff merely “had a spo-
radic, on again, off again relationship” over approxi-
mately three years. Defendant contended that plaintiff
lacked standing to file an action under the Revocation
of Paternity Act because he knew that she was married
to Williams at the time of the child’s conception and
knew that she intended to remain married to Williams.
Plaintiff’s motion was referred to a Friend of the
Court referee. After reviewing the evidence, the referee
found that defendant had informed plaintiff that “she
was married at the initiation of their relationship....”
Citing MCL 722.1441(3)(a)(i), the referee recommended
that plaintiff’s request for DNA testing be denied
because an alleged father may only file an action to
establish paternity if he did not know or have a reason
to know that the mother was married at the time of
1
Plaintiff attached the report of a private genetic testing company
showing a 99.99 percent probability that he was the biological father of
the child.
524 302 M
ICH
A
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521 [Sept
conception. Plaintiff objected to the referee’s recom-
mendations and requested a de novo hearing. Among
other things, plaintiff argued that the referee’s inter-
pretation of the Revocation of Paternity Act violated his
constitutional rights “as it relates to the fundamental
right to have a meaningful relationship with one’s
child.”
On December 3, 2012, defendant moved for summary
disposition, arguing that plaintiff lacked standing to bring
an action under the Revocation of Paternity Act because it
was beyond factual dispute that plaintiff was aware of her
marriage to Williams at the time the child was conceived.
Plaintiff admitted that he knew defendant was married at
the time he started dating her, just as he had told the
referee. However, plaintiff maintained that he assumed
that defendant had subsequently obtained a divorce from
Williams. He argued that the Legislature “did not intend
for fathers to engage in a fact finding mission to determine
if the woman they slept with was married on paper when
all other indications of a traditional marriage [were]
absent.” He also argued that a denial of his request to
establish paternity would violate his due-process right to
“make decisions regarding the care, custody, and control”
of his child, as well as his right to equal protection.
At the hearing on defendant’s motion for summary
disposition, the circuit court remarked from the bench:
It is undisputed that [plaintiff] was aware that he was
engaged in a relationship with a married woman, and that
at the time of the conception and birth of the child
[defendant] was married to another man. Under the stat-
ute, that denies him standing, and...it’s unequivocal. It
says...[“]to know or reason to know that the mother
[was] married.[”] And so, under that argument, I’m finding
in favor of the defendant, and that she is entitled to
summary disposition.
2013] G
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525
As to the constitutional arguments,...meninthesame
shoes as [plaintiff] lack standing to bring any kind of action
whatsoever if the child was born during the time the
woman was married to another man, and there’s all sorts of
public policy debates that happened, but that’s what the
statute read, and it was found to be constitutional. I don’t
find that [plaintiff’s] constitutional argument under the
new statute has merit. For those reasons, I am granting the
motion for summary disposition on the basis that the
plaintiff lacks standing, and the case is dismissed.
On January 22, 2013, the circuit court entered an order
granting summary disposition in favor of defendant and
dismissing plaintiff’s claims.
II
We review de novo the circuit court’s decision to
grant a motion for summary disposition. Spiek v Dep’t
of Transportation, 456 Mich 331, 337; 572 NW2d 201
(1998). “Summary disposition is proper under MCR
2.116(C)(10) if the affidavits and other documentary
evidence show that there is no genuine issue concerning
any material fact and that the moving party is entitled
to judgment as a matter of law.” Kennedy v Great
Atlantic & Pacific Tea Co, 274 Mich App 710, 712; 737
NW2d 179 (2007). “A genuine issue of material fact
exists when the record, giving the benefit of reasonable
doubt to the opposing party, leaves open an issue upon
which reasonable minds might differ.” West v Gen
Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).
We review de novo whether a party has been afforded
due process, Elba Twp v Gratiot Co Drain Comm’r, 493
Mich 265, 277; 831 NW2d 204 (2013), and whether a
party has been afforded equal protection under the law,
USA Cash #1, Inc v Saginaw, 285 Mich App 262, 277;
776 NW2d 346 (2009). “Matters of constitutional and
statutory interpretation and questions concerning the
526 302 M
ICH
A
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521 [Sept
constitutionality of a statutory provision are also re-
viewed de novo.” Toll Northville Ltd v Northville Twp,
480 Mich 6, 10-11; 743 NW2d 902 (2008). “Statutes are
presumed constitutional unless the unconstitutionality
is clearly apparent.” Id.at11.
III
Plaintiff first argues that the circuit court erred by
granting summary disposition in favor of defendant
because there was insufficient evidence to establish
that he knew or had reason to know that defendant was
married to Williams at the time the child was conceived.
We disagree.
The Revocation of Paternity Act was added by way of
2012 PA 159, and took effect on June 12, 2012. Among
other things, the Revocation of Paternity Act “governs
actions to determine that a presumed father is not a
child’s father....”In re Daniels Estate, 301 Mich App
450, 458-459; 837 NW2d 1 (2013). Section 11(3)(a) of
the Revocation of Paternity Act, MCL 722.1441(3)(a),
provides:
If a child has a presumed father,
[
2
]
a court may deter-
mine that the child is born out of wedlock for the purpose
of establishing the child’s paternity if an action is filed by
an alleged father
[
3
]
and any of the following applies:
(a) All of the following apply:
(i) The alleged father did not know or have reason to
know that the mother was married at the time of concep-
tion.
2
A “presumed father” is “a man who is presumed to be the child’s
father by virtue of his marriage to the child’s mother at the time of the
child’s conception or birth.” MCL 722.1433(4).
3
An “alleged father” is “a man who by his actions could have fathered
the child.” MCL 722.1433(3).
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(ii) The presumed father, the alleged father, and the
child’s mother at some time mutually and openly acknowl-
edged a biological relationship between the alleged father
and the child.
(iii) The action is filed within 3 years after the child’s
birth. The requirement that an action be filed within 3
years after the child’s birth does not apply to an action filed
on or before 1 year after the effective date of this act.
(iv) Either the court determines the child’s paternity or
the child’s paternity will be established under the law of
this state or another jurisdiction if the child is determined
to be born out of wedlock.
The only factual issue that is possibly in dispute in
this case is whether plaintiff “did not know or have
reason to know that the mother was married at the time
of conception.” MCL 722.1441(3)(a)(i). We conclude
that it was beyond genuine factual dispute that plaintiff
knew or had reason to know that defendant was mar-
ried to Williams at the time of the child’s conception.
According to plaintiff’s own complaint, “[f]rom the
time of conception until the time of the child’s birth,
[defendant] was married to Dante Williams.” Plaintiff
did allege that defendant and Williams were “sepa-
rated” and that he believed defendant intended to
obtain a divorce from Williams. However, defendant and
Williams were never divorced; indeed, defendant appar-
ently remains married to Williams to this day. It is
undisputed that defendant never told plaintiff that she
had divorced Williams. Nor did plaintiff have any sound
reason to believe that defendant had divorced Williams.
Even viewing the pleadings, affidavits, and other docu-
mentary evidence in the light most favorable to plain-
tiff, Kennedy, 274 Mich App at 712, no reasonable
person could have concluded that plaintiff was unaware
of defendant’s marriage to Williams at the time of the
child’s conception, see West, 469 Mich at 183.
528 302 M
ICH
A
PP
521 [Sept
Even assuming arguendo that plaintiff did not actu-
ally know that defendant was married to Williams at
the time the child was conceived, he had reason to know
that defendant remained married to Williams at that
time. MCL 722.1441(3)(a)(i). Plaintiff fully admits that
he was aware of defendant’s marriage when he began
dating her. In the absence of any proof of an intervening
divorce, it was unreasonable for plaintiff to presume
that defendant did not remain legally married to Will-
iams. See Killackey v Killackey, 156 Mich 127, 133; 120
NW 680 (1909) (noting that, in the absence of evidence
to the contrary, the presumption is that married per-
sons have sustained the usual relations of husband and
wife from the date of their marriage up to the time that
a suit for divorce is filed). Apart from his own subjec-
tive, wishful thinking, plaintiff had no reason to believe
that defendant had divorced Williams. Thus, even if
plaintiff did not actually know that defendant remained
married to Williams at the time of the child’s concep-
tion, he certainly “ha[d] reason to know” that defen-
dant was still married at the time. MCL
722.1441(3)(a)(i).
No reasonable person could have concluded that
plaintiff “did not know or have reason to know that the
mother was married at the time of conception” within
the meaning of MCL 722.1441(3)(a)(i). Accordingly,
plaintiff lacked standing to commence this action under
the Revocation of Paternity Act. The circuit court
properly granted summary disposition in favor of defen-
dant.
IV
Plaintiff also argues that the statutory standing
requirements of the Revocation of Paternity Act are
unconstitutional because they violate an alleged
2013] G
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father’s due-process and equal-protection rights. For
the reasons that follow, we are compelled to conclude
that the standing requirements contained in the
Revocation of Paternity Act are constitutional.
At common law, a child conceived by or born to a
married woman was presumed to be a child of the
marriage. Aichele v Hodge, 259 Mich App 146, 157; 673
NW2d 452 (2003). Under this presumption, known as
Lord Mansfield’s Rule, a husband was presumed to be
the father of his wife’s child, and no declaration of
either spouse could be “ ‘ “admitted to bastardize the
issue born after marriage.” ’ ” Id. at 157-158, quoting
Serafin v Serafin, 401 Mich 629, 633; 258 NW2d 461
(1977), in turn quoting Goodright v Moss, 98 Eng Rep
1257 (1777). Two hundred years later, the Michigan
Supreme Court modified Lord Mansfield’s Rule, allow-
ing a husband to disclaim paternity while maintaining
the “still viable and strong, though rebuttable, pre-
sumption of legitimacy.” Serafin, 401 Mich at 634-636.
However, this Court has since observed that the pre-
sumption of legitimacy “continues to serve the purpose
of promoting order and stability” and “still permeates
Michigan law.” Aichele, 259 Mich App at 158.
A
The United States Constitution provides that “[n]o
State shall...deprive any person of life, liberty, or
property, without due process of law....” US Const,
Am XIV, § 1. Similarly, the Michigan Constitution pro-
vides that “[n]o person shall be...deprived of life,
liberty or property, without due process of law.” Const
1963, art 1, § 17. The due process guarantee of the
Michigan Constitution is coextensive with its federal
counterpart. Cummins v Robinson Twp, 283 Mich App
530 302 M
ICH
A
PP
521 [Sept
677, 700-701; 770 NW2d 421 (2009); English v Blue
Cross Blue Shield of Mich, 263 Mich App 449, 459; 688
NW2d 523 (2004).
Due process contains both a procedural and a sub-
stantive component. Collins v Harker Heights, 503 US
115, 125; 112 S Ct 1061; 117 L Ed 2d 261 (1992); People
v Sierb, 456 Mich 519, 523 n 8; 581 NW2d 219 (1998).
“The underlying purpose of substantive due process is
to secure the individual from the arbitrary exercise of
governmental power.” Sierb, 456 Mich at 523. The
substantive component of the due process guarantee
“provides heightened protection against government
interference with certain fundamental rights and lib-
erty interests.” Washington v Glucksberg, 521 US 702,
720; 117 S Ct 2258; 138 L Ed 2d 772 (1997). The United
States Supreme Court has long recognized that the
“liberty” protected by substantive due process includes,
among other things, the right to have children and the
right to direct the education and upbringing of one’s
children. Id. Indeed, “the interest of parents in the care,
custody, and control of their children” is “perhaps the
oldest of the fundamental liberty interests” that the
United States Supreme Court has recognized. Troxel v
Granville, 530 US 57, 65; 120 S Ct 2054; 147 L Ed 2d 49
(2000) (opinion by O’Connor, J.); see also Santosky v
Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599
(1982).
However, this fundamental liberty interest has never
been extended to a putative father who seeks to estab-
lish paternity with respect to a child born during the
mother’s marriage to another man. “Where...the
child is born into an extant marital family, the [biologi-
cal] father’s unique opportunity conflicts with the simi-
larly unique opportunity of the husband of the mar-
riage; and it is not unconstitutional for the State to give
2013] G
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categorical preference to the latter.” Michael H v Gerald
D, 491 US 110, 129; 109 S Ct 2333; 105 L Ed 2d 91
(1989). “[T]he current state of the law in Michigan is
that a putative father of a child born in wedlock has no
constitutional liberty interest relative to commencing a
paternity action and requesting custody or parenting
time regardless of a biological connection to the child
and the presence of a parent-child relationship.” Sini-
cropi v Mazurek, 273 Mich App 149, 170; 729 NW2d 256
(2006).
We acknowledge that the Revocation of Paternity Act
is relatively new. See 2012 PA 159. Further, we are not
insensitive to plaintiff’s plight. It is refreshing to see a
putative father, such as plaintiff, step forward and
express a desire to foster and maintain a parent-child
relationship. However, it remains clear, at least at this
time, that a putative father in the position of plaintiff
who seeks to establish paternity with regard to a child
conceived and born during the mother’s marriage to
another man has no constitutional due-process right to
claim paternity, whether under the Revocation of Pa-
ternity Act or any other statute. See Sinicropi, 273
Mich App at 170.
B
Nor can we conclude that plaintiff’s constitutional
right to equal protection was violated in this case. The
United States Constitution provides that “[n]o State
shall...deny to any person within its jurisdiction the
equal protection of the laws.” US Const, Am XIV, § 1.
Likewise, the Michigan Constitution provides that
“[n]o person shall be denied the equal protection of the
laws....” Const 1963, art 1, § 2. “Michigan’s equal
protection provision [is] coextensive with the Equal
532 302 M
ICH
A
PP
521 [Sept
Protection Clause of the federal constitution.” Crego v
Coleman, 463 Mich 248, 258; 615 NW2d 218 (2000).
“The essence of the Equal Protection Clauses is that
the government not treat persons differently on ac-
count of certain, largely innate, characteristics that do
not justify disparate treatment.” Id. “Conversely, the
Equal Protection Clauses do not prohibit disparate
treatment with respect to individuals on account of
other, presumably more genuinely differentiating, char-
acteristics.” Id. at 258-259.
If a child was conceived or born during an extant
marriage, and if the child’s mother, presumed father,
and alleged father have “mutually and openly acknowl-
edged a biological relationship between the alleged
father and the child,” the child’s mother or alleged
father may commence an action under certain circum-
stances seeking to revoke the presumption of paternity
that attaches to the presumed father. MCL
722.1441(1)(a) and (3)(a). As explained previously, an
alleged father may commence such an action under the
Revocation of Paternity Act only if he “did not know or
have reason to know that the mother was married at
the time of conception.” MCL 722.1441(3)(a)(i). For
obvious reasons, the statute imposes no such require-
ment on the child’s mother. See MCL 722.1441(1)(a).
After all, the child’s mother would certainly be aware of
her own marriage to the presumed father.
Plaintiff argues that this statutory distinction—
requiring that an alleged father “not know or have
reason to know that the mother was married at the time
of conception,” but imposing no similar knowledge
requirement on the child’s mother—violates his right to
equal protection. He contends that because a child’s
mother and alleged father are similarly situated, they
2013] G
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533
must be afforded equal standing to commence an action
under the Revocation of Paternity Act.
Although we recognize plaintiff’s predicament, we
cannot conclude that the particular gender-based dis-
tinction challenged by plaintiff is unconstitutional. The
Legislature’s objective was to permit putative fathers
who were genuinely unaware of the mother’s marital
status at the time of conception to sue to establish
paternity in certain instances, but also to protect pre-
sumed fathers and extant marital families from com-
peting claims to paternity by knowing adulterers. It
bears repeating that, not so long ago, no putative father
could assert a claim of paternity with respect to a child
born during the mother’s marriage to another man. It is
true that the Michigan Legislature has altered this
common-law rule in certain respects, now permitting
certain alleged fathers who were genuinely unaware
that the mother was married at the time of conception
to commence actions under the Revocation of Paternity
Act seeking to revoke the presumption of paternity that
attaches to the mother’s husband. But it is axiomatic
that the Legislature may partially confer such rights on
alleged fathers in a gradual or step-by-step fashion and
need not immediately give alleged fathers the full
panoply of rights and privileges that attach to presumed
fathers. See New Orleans v Dukes, 427 US 297, 303; 96
S Ct 2513; 49 L Ed 2d 511 (1976).
We fully acknowledge that “[l]egislative classifica-
tions which distribute benefits and burdens on the basis
of gender carry the inherent risk of reinforcing stereo-
types about the ‘proper place’ of women and their need
for special protection.” Orr v Orr, 440 US 268, 283; 99
S Ct 1102; 59 L Ed 2d 306 (1979). Accordingly,
“[g]ender-based classification schemes are subject to
heightened scrutiny review.” Rose v Stokely, 258 Mich
534 302 M
ICH
A
PP
521 [Sept
App 283, 302; 673 NW2d 413 (2003) (opinion by
W
HITBECK
, C.J.). “Under this level of scrutiny, there
are two determinations that must be made. The first
question is whether the classification serves an im-
portant governmental interest. The second question
is whether the classification is substantially related to
the achievement of the important governmental ob-
jective.” Dep’t of Civil Rights ex rel Forton v Waterford
Twp Parks & Recreation Dep’t, 425 Mich 173, 191; 387
NW2d 821 (1986); see also Craig v Boren, 429 US 190,
197; 97 S Ct 451; 50 L Ed 2d 397 (1976).
But before the applicable level of scrutiny even
becomes an issue, it must first be shown that the
challenged legislation or governmental action treats
similarly situated individuals differently. “When re-
viewing the validity of state legislation or other official
action that is challenged as denying equal protection,
the threshold inquiry is whether [the] plaintiff was
treated differently from a similarly situated [indi-
vidual].” Shepherd Montessori Ctr Milan v Ann Arbor
Charter Twp, 486 Mich 311, 318; 783 NW2d 695 (2010).
“Gender-based classifications will be upheld when men
and women are not actually similarly situated in the
area covered by the legislation in question and the
statutory classification is realistically based on the
differences in their situations.” In re RFF, 242 Mich
App 188, 210; 617 NW2d 745 (2000); see also Parham v
Hughes, 441 US 347, 354; 99 S Ct 1742; 60 L Ed 2d 269
(1979).
The United States Supreme Court has held that
“[f]athers and mothers are not similarly situated with
regard to the proof of biological parenthood. The impo-
sition of a different set of rules for making that legal
determination with respect to fathers and mothers is
neither surprising nor troublesome from a constitu-
2013] G
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535
tional perspective.” Nguyen v INS, 533 US 53, 63; 121 S
Ct 2053; 150 L Ed 2d 115 (2001). “Only women may
become pregnant, and they suffer disproportionately
the profound physical, emotional and psychological con-
sequences of sexual activity.” Michael M v Superior
Court of Sonoma Co, 450 US 464, 471; 101 S Ct 1200; 67
L Ed 2d 437 (1981) (opinion by Rehnquist, J.). “The
mother is the only necessary actor at all stages of the
process, from conception through pregnancy and deliv-
ery, including all the physical and medical implications
of each stage. Moreover, the mother is usually the
child’s primary caregiver during the infant’s first weeks
of life. These are genuinely differentiating characteris-
tics.” Rose, 258 Mich App at 297. In addition, the
identity of the mother is rarely, if ever, in question, and
it is the mother who must ultimately decide whether to
give birth to the child or terminate the pregnancy. In re
RFF, 242 Mich App at 210-211.
In contrast, the identity of the child’s biological
father may well be uncertain. “[T]he father’s physical
role is limited to the conception of the child. He has no
physical role, after conception, in carrying the child to
term or in the delivery of the child.” Rose, 258 Mich App
at 297. It is an “uncontestable fact” that the biological
father “need not be present at the birth,” and even if he
is present, “that circumstance is not incontrovertible
proof of fatherhood.” Nguyen, 533 US at 62.
In short, a married mother and an alleged father are
not similarly situated for purposes of the Revocation of
Paternity Act. Consequently, the Legislature’s decision
to prescribe different statutory standing requirements
for a child’s mother and alleged father in the Revoca-
tion of Paternity Act does not offend equal protection.
See id. at 73 (observing that “[t]he difference between
men and women in relation to the birth process is a real
536 302 M
ICH
A
PP
521 [Sept
one, and the principle of equal protection does not
forbid [the Legislature] to address the problem at hand
in a manner specific to each gender”). Because married
mothers and alleged fathers are not “actually similarly
situated” in the area covered by the Revocation of
Paternity Act, plaintiff was not denied equal protection
in this case. See In re RFF, 242 Mich App at 210.
V
We decline to address plaintiff’s unpreserved argu-
ment that the circuit court’s ruling violated the child’s
constitutional right to “care and filiation.” This argu-
ment was not raised in and decided by the circuit court.
Fast Air, Inc v Knight, 235 Mich App 541, 549; 599
NW2d 489 (1999). At any rate, we note that the United
States Supreme Court has never determined “whether
a child has a liberty interest, symmetrical with that of
her parent, in maintaining her filial relationship.”
Michael H, 491 US at 130. And even if children do have
such a constitutional right, it is almost certainly the
right to maintain a filial relationship with their legal
parents. See id. at 131. Under the law as it exists in
Michigan today, plaintiff is simply not one of the child’s
legal parents. It is for the Legislature, not this Court, to
decide whether the rights of alleged fathers such as
plaintiff should be further expanded.
Affirmed. No taxable costs pursuant to MCR 7.219, a
public question having been involved.
C
AVANAGH
and M
ARKEY
, JJ., concurred with J
ANSEN
,
P.J.
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BOOK-GILBERT v GREENLEAF
Docket No. 308755. Submitted July 10, 2013, at Detroit. Decided Sep-
tember 26, 2013, at 9:00 a.m.
Heather McCallister, the paternal grandmother of Eli Greenleaf,
moved in the Genesee Circuit Court for grandparenting time
under MCL 722.27b after the child’s guardian, Angela Tyndall,
refused to let her visit the child. The case began as a support action
between the child’s mother, Ashlee Book-Gilbert, and the child’s
father, Jerry R. Greenleaf. Book-Gilbert subsequently died, and
Jerry was incarcerated. After Tyndall was appointed as the child’s
guardian, McCallister moved for grandparenting time in the
support action, which had never been closed. The court, Kay F.
Behm, J., ruled that Tyndall was entitled to the fit-parent pre-
sumption of MCL 722.27b(4)(b), that McCallister had failed to
overcome the presumption, and, accordingly, denied McCallister’s
motion for grandparenting time. The Court of Appeals granted
McCallister’s delayed application for leave to appeal.
The Court of Appeals held:
A child’s grandparent may seek a grandparenting time order
under certain circumstances. It is presumed in a proceeding for
grandparenting time that a fit parent’s decision to deny grandpar-
enting time does not create a substantial risk of harm to the child’s
mental, physical, or emotional health. To rebut the presumption, a
grandparent must prove by a preponderance of the evidence that
the parent’s decision to deny grandparenting time creates a
substantial risk of harm to the child’s mental, physical, or emo-
tional health. If the grandparent fails to overcome the presump-
tion, the court must deny the grandparent’s motion for grandpar-
enting time. Under the plain language of MCL 722.27b(4)(b), only
fit parents are entitled to the presumption. There are distinct
differences between a parent and a guardian such that it would be
inappropriate to read the term “guardian” into the text of the
fit-parent presumption in the absence of clear statutory language
to that effect. Specifically, parents have a fundamental liberty
interest in the care, custody, and control of their children. In
contrast, guardianships are statutory in nature. The presumption
favoring a fit parent reflects the elevated status of parents and
538 302 M
ICH
A
PP
538 [Sept
parental rights. The circuit court erred when it gave the guardian
the benefit of the fit-parent presumption.
Reversed and remanded for further proceedings.
C
HILD
C
USTODY —
G
RANDPARENTING
T
IME —
F
IT
-P
ARENT
P
RESUMPTION —
G
UARD-
IANS
.
It is presumed in a proceeding for grandparenting time that a fit
parent’s decision to deny grandparenting time does not create a
substantial risk of harm to the child’s mental, physical, or emo-
tional health; only fit parents are entitled to the presumption; a
guardian is not entitled to the presumption (MCL 722.27b).
John Ceci PLLC (by John R. Ceci) for Heather
McCallister.
John A. Streby for Angela Tyndall.
Before: F
ORT
H
OOD
,P.J., and F
ITZGERALD
and R
ONAYNE
K
RAUSE
,JJ.
P
ER
C
URIAM
. Heather McCallister, the minor child’s
paternal grandmother, appeals by leave granted the
family court order denying her motion for grandparent
visitation, MCL 722.27b. We reverse and remand for
proceedings consistent with this opinion.
When the minor child was three years old, his mother
died. The father of the minor child was homeless and
later placed in prison for failing to register as a sex
offender. A foster care worker with the Department of
Human Services (DHS) interviewed McCallister to de-
termine her eligibility for visitation. McCallister was
employed as a licensed adult-foster-care worker. In the
course of the interview, McCallister did not disclose that
DHS had previously investigated allegations concerning
her home. The foster care worker opined that McCal-
lister was not forthright regarding the investigations.
The minor child was placed in the care of Angela
Tyndall, a relative of the minor child’s deceased mother,
in March 2009. The minor child was able to visit with
2013] B
OOK
-G
ILBERT V
G
REENLEAF
539
McCallister until August 2009. In August 2009, Tyndall
was named guardian of the minor child. After she
became the minor child’s guardian, DHS gave Tyndall
the right to determine whether grandparent visitation
would continue. Tyndall refused to allow further visi-
tation.
McCallister subsequently moved for grandparent
visitation under MCL 722.27b.
1
At the time of the
hearing on the motion, McCallister had not visited or
seen the minor child in nine months. The trial court
opined that McCallister should have visitation if it was
not detrimental to the child. Accordingly, the court
appointed a guardian ad litem for the minor child and
scheduled the matter for an evidentiary hearing. Two
evidentiary hearings were held within a year. At the
conclusion of the second evidentiary hearing, the par-
ties agreed to adjourn the matter in order to have a
therapist interview McCallister and the minor child and
allow a visit if it was deemed appropriate. Although
McCallister presented the testimony of an expert, this
individual had never interviewed the minor child and
testified that he was offering an opinion premised on
theory. The trial court noted that without an evaluation
of the minor child, all parties were “guessing” what was
best for the minor child. However, at the next hearing,
it was learned that the evaluation had not occurred, the
minor child’s therapist had left her employment, and
Tyndall’s family had moved to a different city because
of a job change. It was determined that the evidentiary
case would continue, and two additional evidentiary
hearings were held. At the conclusion of those addi-
1
This case began as a child support action. Plaintiff, Ashlee Book-
Gilbert, is the minor child’s deceased mother, and defendant, Jerry Ryan
Greenleaf, is the minor child’s biological father. McCallister asserted that
the court had jurisdiction over her motion because the support action had
never been closed.
540 302 M
ICH
A
PP
538 [Sept
tional hearings, the trial court ruled that Tyndall,
although only a guardian, was entitled to the fit-parent
presumption of MCL 722.27b(4)(b), and that McCallis-
ter had failed to overcome the presumption. As a result
of this ruling, the court did not address the best-interest
factors of MCL 722.27b(6), and denied McCallister’s
motion. We granted McCallister’s delayed application
for leave to appeal.
2
McCallister alleges that the trial court erred by
allowing Tyndall, the guardian, to use the fit-parent
presumption of MCL 722.27b(4)(b) to deny grandparent
visitation. We agree.
The interpretation and application of a statute presents
a question of law that the appellate court reviews de novo.
Whitman v City of Burton, 493 Mich 303, 311; 831 NW2d
223 (2013). The judiciary’s objective when interpreting a
statute is to discern and give effect to the intent of the
Legislature. Id. First, the court examines the most reliable
evidence of the Legislature’s intent, the language of the
statute itself. Id. “When construing statutory language,
[the court] must read the statute as a whole and in its
grammatical context, giving each and every word its plain
and ordinary meaning unless otherwise defined.” In re
Receivership of 11910 South Francis Rd, 492 Mich 208,
222; 821 NW2d 503 (2012). Effect must be given to every
word, phrase, and clause in a statute, and the court must
avoid a construction that would render part of the statute
surplusage or nugatory. Johnson v Recca, 492 Mich 169,
177; 821 NW2d 520 (2012). “If the language of a statute is
clear and unambiguous, the statute must be enforced as
written and no further judicial construction is permitted.”
Whitman, 493 Mich at 311. “Generally, when language is
included in one section of a statute but omitted from
2
Book-Gilbert v Greenleaf, unpublished order of the Court of Appeals,
entered October 18, 2012 (Docket No. 308755).
2013] B
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ILBERT V
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REENLEAF
541
another section, it is presumed that the drafters acted
intentionally and purposely in their inclusion or exclu-
sion.” People v Peltola, 489 Mich 174, 185; 803 NW2d 140
(2011). The courts may not read into the statute a require-
ment that the Legislature has seen fit to omit. In re
Hurd-Marvin Drain, 331 Mich 504, 509; 50 NW2d 143
(1951); Mich Basic Prop Ins Ass’n v Office of Fin & Ins
Regulation, 288 Mich App 552, 560; 808 NW2d 456
(2010). “When the Legislature fails to address a concern in
the statute with a specific provision, the courts cannot
insert a provision simply because it would have been wise
of the Legislature to do so to effect the statute’s purpose.”
Mich Basic Prop Ins Ass’n, 288 Mich App at 560 (quota-
tion marks and citation omitted). Statutes that address
the same subject matter or share a common purpose are
in pari materia and must be read collectively as one law,
even when there is no reference to one another. Maple
Grove Twp v Misteguay Creek Intercounty Drain Bd, 298
Mich App 200, 212; 828 NW2d 459 (2012). The trial
court’s factual findings are reviewed for clear error, and its
legal conclusions are reviewed de novo. In re Receivership,
492 Mich at 218. Application of the law to the facts
presents a question of law subject to review de novo.
Miller-Davis Co v Ahrens Constr, Inc, 285 Mich App 289,
299; 777 NW2d 437 (2009) rev’d on other grounds 489
Mich 355 (2011).
MCL 722.27b governs grandparenting time and pro-
vides in relevant part:
(1) A child’s grandparent may seek a grandparenting
time order under 1 or more of the following circumstances:
(a) An action for divorce, separate maintenance, or
annulment involving the child’s parents is pending before
the court.
(b) The child’s parents are divorced, separated under a
judgment of separate maintenance, or have had their
marriage annulled.
542 302 M
ICH
A
PP
538 [Sept
(c) The child’s parent who is a child of the grandparents
is deceased.
(d) The child’s parents have never been married, they are
not residing in the same household, and paternity has been
established by the completion of an acknowledgment of
parentage under the acknowledgment of parentage act, 1996
PA 305, MCL 722.1001 to 722.1013, by an order of filiation
entered under the paternity act, 1956 PA 205, MCL 722.711
to 722.730, or by a determination by a court of competent
jurisdiction that the individual is the father of the child.
(e) Except as otherwise provided in subsection (13), legal
custody of the child has been given to a person other than
the child’s parent, or the child is placed outside of and does
not reside in the home of a parent.
(f) In the year preceding the commencement of an action
under subsection (3) for grandparenting time, the grandpar-
ent provided an established custodial environment for the
child as described in [MCL 722.27], whether or not the
grandparent had custody under a court order.
***
(3) A grandparent seeking a grandparenting time order
shall commence an action for grandparenting time, as follows:
(a) If the circuit court has continuing jurisdiction over the
child, the child’s grandparent shall seek a grandparenting
time order by filing a motion with the circuit court in the
county where the court has continuing jurisdiction.
(b) If the circuit court does not have continuing juris-
diction over the child, the child’s grandparent shall seek a
grandparenting time order by filing a complaint in the
circuit court for the county where the child resides.
(4) All of the following apply to an action for grandpar-
enting time under subsection (3):
(a) The complaint or motion for grandparenting time filed
under subsection (3) shall be accompanied by an affidavit
setting forth facts supporting the requested order. The grand-
parent shall give notice of the filing to each person who has
2013] B
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legal custody of, or an order for parenting time with, the child.
A party having legal custody may file an opposing affidavit. A
hearing shall be held by the court on its own motion or if a
party requests a hearing. At the hearing, parties submitting
affidavits shall be allowed an opportunity to be heard.
(b) In order to give deference to the decisions of fit parents,
it is presumed in a proceeding under this subsection that a fit
parent’s decision to deny grandparenting time does not create
a substantial risk of harm to the child’s mental, physical, or
emotional health. To rebut the presumption created in this
subdivision, a grandparent filing a complaint or motion under
this section must prove by a preponderance of the evidence
that the parent’s decision to deny grandparenting time cre-
ates a substantial risk of harm to the child’s mental, physical,
or emotional health. If the grandparent does not overcome
the presumption, the court shall dismiss the complaint or
deny the motion.
(c) If a court of appellate jurisdiction determines in a
final and nonappealable judgment that the burden of proof
described in subdivision (b) is unconstitutional, a grand-
parent filing a complaint or motion under this section must
prove by clear and convincing evidence that the parent’s
decision to deny grandparenting time creates a substantial
risk of harm to the child’s mental, physical, or emotional
health to rebut the presumption created in subdivision (b).
(5) If 2 fit parents sign an affidavit stating that they
both oppose an order for grandparenting time, the court
shall dismiss a complaint or motion seeking an order for
grandparenting time filed under subsection (3). This sub-
section does not apply if 1 of the fit parents is a stepparent
who adopted a child under the Michigan adoption code,
chapter X of the probate code of 1939, 1939 PA 288, MCL
710.21 to 710.70, and the grandparent seeking the order is
the natural or adoptive parent of a parent of the child who
is deceased or whose parental rights have been terminated.
(6) If the court finds that a grandparent has met the
standard for rebutting the presumption described in sub-
section (4), the court shall consider whether it is in the best
interests of the child to enter an order for grandparenting
544 302 M
ICH
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538 [Sept
time. If the court finds by a preponderance of the evidence
that it is in the best interests of the child to enter a
grandparenting time order, the court shall enter an order
providing for reasonable grandparenting time of the child
by the grandparent by general or specific terms and condi-
tions. In determining the best interests of the child under
this subsection, the court shall consider all of the following:
(a) The love, affection, and other emotional ties existing
between the grandparent and the child.
(b) The length and quality of the prior relationship
between the child and the grandparent, the role performed
by the grandparent, and the existing emotional ties of the
child to the grandparent.
(c) The grandparent’s moral fitness.
(d) The grandparent’s mental and physical health.
(e) The child’s reasonable preference, if the court considers
the child to be of sufficient age to express a preference.
(f) The effect on the child of hostility between the
grandparent and the parent of the child.
(g) The willingness of the grandparent, except in the
case of abuse or neglect, to encourage a close relationship
between the child and the parent or parents of the child.
(h) Any history of physical, emotional, or sexual abuse
or neglect of any child by the grandparent.
(i) Whether the parent’s decision to deny, or lack of an
offer of, grandparenting time is related to the child’s
well-being or is for some other unrelated reason.
(j) Any other factor relevant to the physical and psycho-
logical well-being of the child.
(7) If the court has determined that a grandparent has
met the standard for rebutting the presumption described
in subsection (4), the court may refer that grandparent’s
complaint or motion for grandparenting time filed under
subsection (3) to alternative dispute resolution as provided
by supreme court rule. If the complaint or motion is
referred to the friend of the court for alternative dispute
resolution and no settlement is reached through friend of
2013] B
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the court alternative dispute resolution within a reason-
able time after the date of referral, the complaint or motion
shall be heard by the court as provided in this section.
***
(12) A court shall make a record of its analysis and
findings under subsections (4), (6), (8), and (11), including
the reasons for granting or denying a requested grandpar-
enting time order.
(13) Except as otherwise provided in this subsection,
adoption of a child or placement of a child for adoption under
the Michigan adoption code, chapter X of the probate code of
1939, 1939 PA 288, MCL 710.21 to 710.70, terminates the
right of a grandparent to commence an action for grandpar-
enting time with that child. Adoption of a child by a steppar-
ent under the Michigan adoption code, chapter X of the
probate code of 1939, 1939 PA 288, MCL 710.21 to 710.70,
does not terminate the right of the parent of a deceased
parent of the child to commence an action for grandparenting
time with that child.
At the conclusion of the testimony,
3
the trial court
held that MCL 722.27b(4)(b) provided that deference
3
In the present case, there were four days of evidentiary hearings.
During those hearings, the parties disputed the minor child’s growth,
development, and whether the minor child was abused before coming
into the care of the guardian. McCallister alleged that the minor child
was able to communicate, was seen by medical personnel, and was not, to
her knowledge, abused. On the contrary, Tyndall testified that the minor
child did not speak, ate with his hands and did not know how to use
silverware, and expressed abuse at the hands of his biological father.
McCallister acknowledged that DHS had previously investigated her
home in light of allegations involving the provision of alcohol to minors
and peeping by her husband at their daughter in the shower. McCallister
further acknowledged that the minor child’s father, her son, had been
convicted of the sexual abuse of her stepson. However, McCallister noted
that the DHS investigations had not resulted in the loss of her adult-
foster-care license. A DHS worker, the minor child’s guardian ad litem,
and Tyndall asserted that the minor child’s behavior and condition at the
time he came into Tyndall’s care coupled with the child’s continued
behavioral issues warranted termination of visitation with McCallister.
546 302 M
ICH
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538 [Sept
was to be given to the decision of a fit parent to deny
grandparenting time, and it was presumed that the
denial of grandparenting time “does not create a sub-
stantial risk of harm to the child’s mental, physical, or
emotional health.” The trial court acknowledged that
Tyndall was not a parent, but a guardian. Nonetheless,
the trial court held that Tyndall had the right to make
decisions as a fit parent, the right to deny grandparent-
ing time, and that McCallister had failed to overcome
the presumption.
The trial court’s holding is contrary to the plain
language of MCL 722.27b(4)(b). See Whitman, 493 Mich
at 311. The text of MCL 722.27b contemplates that a
minor child will be placed within the custody of an
individual other than a parent. MCL 722.27b(1)(e)
permits a grandparent to seek visitation when “legal
custody of the child has been given to a person other
than the child’s parent, or the child is placed outside of
and does not reside in the home of a parent.” Despite
the Legislature’s acknowledgement that a child might
be placed outside of a parental home, the plain language
MCL 722.27b(4)(b) grants “fit parents” a presumption
with regard to the denial of grandparenting time. The
Legislature could have afforded a presumption to “cus-
todians” or “guardians” of a grandchild, but did not
include such language. We cannot read into a statute
what the Legislature did not include, In re Hurd-
Marvin Drain, 331 Mich at 509, and permitting guard-
ians or custodians to derive the benefit of the fit-parent
presumption would require us to rewrite the statute at
issue.
The trial court did not make factual findings or address the credibility of
the witnesses. Consequently, we are unable to review any factual findings
and are limited to addressing the question of law—whether a guardian is
entitled to the fit-parent presumption of MCL 722.27b(4)(b). See In re
Receivership, 492 Mich at 218.
2013] B
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Tyndall contends that a guardianship encompasses
parental responsibilities and, therefore, the trial court
appropriately allowed the guardian to “step into the
shoes” of the parent for purposes of MCL 722.27b(4)(b).
MCL 700.5215 provides that “[a] minor’s guardian has
the powers and responsibilities of a parent who is not
deprived of custody of the parent’s minor and uneman-
cipated child, except that a guardian is not legally
obligated to provide for the ward from the guardian’s
own money and is not liable to third persons by reason
of the parental relationship for the ward’s acts.”
Although MCL 700.5215 defines guardian’s powers
and responsibilities in terms of a parent’s powers and
responsibilities, that definition may not be incorporated
into the provisions of MCL 722.27b(4)(b). The statutes
fail to address the same subject matter, and they cannot
be read in pari materia. See Maple Grove Twp, 298 Mich
App at 212. More importantly, there are distinct differ-
ences between a parent and a guardian such that it
would be inappropriate to read the term guardian into
the text of the fit-parent presumption of MCL
722.27b(4)(b) in the absence of clear statutory language
to that effect. See Mich Basic Prop Ins Ass’n, 288 Mich
App at 560. Specifically, parents have a fundamental
liberty interest in the care, custody, and control of their
children. In re Beck, 488 Mich 6, 11; 793 NW2d 562
(2010). In contrast to this constitutional right, the
purpose and legal effect of a guardianship is determined
by statute. Univ Ctr, Inc v Ann Arbor Pub Sch, 386 Mich
210, 217; 191 NW2d 302 (1971). “A custody award to a
third party...represents a lesser intrusion into the
family sphere. It does not result in an irrevocable
severance of...rights....”Hunter v Hunter, 484 Mich
247, 269; 771 NW2d 694 (2009). The presumption
favoring a fit parent reflects the elevated status of
parents and parental rights. See In re Beck, 488 Mich at
548 302 M
ICH
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538 [Sept
11. Moreover, a fit parent has a relationship to the
grandparents such that an informed decision may be
made regarding the propriety of grandparent visitation.
On the contrary, a guardian or custodian of a grandchild
might or might not have a relationship with the grand-
parent, and, in the absence of a relationship, could not
make an informed decision regarding the risk of harm
to a child during visitation. Accordingly, the trial court
erred by allowing a guardian to “step into the shoes” of
a fit parent for purposes of MCL 722.27b(4)(b). Because
the trial court did not make factual findings or credibil-
ity determinations in light of the testimony presented,
we remand for additional proceedings consistent with
this opinion.
Reversed and remanded for proceedings consistent
with this opinion. We do not retain jurisdiction.
F
ORT
H
OOD
,P.J., and F
ITZGERALD
and R
ONAYNE
K
RAUSE
, JJ., concurred.
2013] B
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CLOHSET v NO NAME CORPORATION (ON REMAND)
Docket No. 301681. Submitted August 1, 2013, at Lansing. Decided
October 1, 2013, at 9:00 a.m.
Clarence and Virginia Clohset and No Name Corporation entered
into a lease agreement for commercial premises in 1991. Geraldine
and Walter Goodman obligated themselves as guarantors for No
Name. No Name failed to make lease payments and the Clohsets
filed a demand for possession on No Name in the 48th District
Court on October 6, 1998 and filed a complaint against No Name
on October 21, 1998 for nonpayment of rent, seeking possession of
the premises and costs, but not seeking monetary damages, which
the complaint acknowledged would exceed the district court’s
general statutory jurisdictional limit of $25,000, MCL 600.8301(1).
The Clohsets entered into a settlement agreement with No Name,
Geraldine Goodman, and Walter Goodman, stating in part that No
Name owed the Clohsets $384,822.95, plus 9.5 percent interest.
The agreement required the parties to execute consent judgments
for entry, potentially, in the circuit court or the district court. The
consent judgments were to be held by the Clohsets and one or both
were to be filed if No Name or the Goodmans defaulted on the
settlement agreement. The Clohsets filed the district court con-
sent judgment, stating that defendants had defaulted on the
settlement agreement and owed the Clohsets a net amount of
$222,102.09 plus costs and attorney fees. The district court en-
tered the stipulated consent judgment on October 1, 1999. In
March 2009, after the Clohsets and Walter Goodman had died,
plaintiff Phillip M. Clohset, as personal representative of the
estates of Clarence and Virginia Clohset, sent defendant Geraldine
Goodman a demand letter for the amount owed in accordance with
the consent judgment. Defendants stipulated to the renewal of the
consent judgment in September 2009. In October 2009 defendant
filed a motion to vacate the original October 1, 1999 consent
judgment, arguing that the district court had lacked subject-
matter jurisdiction over the case. The district court, Marc Barron,
J., denied defendants’ motion to vacate the judgment and trans-
ferred the case to circuit court pursuant to MCR 2.227(A)(1).
Plaintiff moved for entry in the circuit court of the consent
judgment that had previously been entered in the district court.
550 302 M
ICH
A
PP
550 [Oct
The circuit court, Mark A. Goldsmith, J., denied plaintiff’s motion
and granted defendants’ counter-motion to dismiss, holding that
the judgment was void for lack of subject-matter jurisdiction in the
district court. Plaintiff filed an amended complaint in the circuit
court and moved for summary disposition. The circuit court,
Phyllis C. McMillen, J., denied plaintiff’s motion and dismissed
plaintiff’s claims. Plaintiff appealed and the Court of Appeals,
B
OONSTRA
, J., and K. F. K
ELLY
,P.J., and W
ILDER
, J. (concurring),
vacated the circuit court order and remanded to the district court
for reinstatement and enforcement of the consent judgment. 296
Mich App 525 (2012). The Supreme Court, in lieu of granting leave
to appeal, vacated the opinion and remanded the case to the Court
of Appeals for reconsideration in light of MCL 600.5739(1) and
MCR 4.201(G)(2)(b). 494 Mich 874 (2013).
The Court of Appeals held:
1. Michigan district courts have exclusive jurisdiction under
MCL 600.8301(1) over civil matters where the amount in contro-
versy does not exceed $25,000 and, pursuant to MCL 600.8302(1)
and (3), equitable jurisdiction and authority concurrent with that
of the circuit court with respect to equitable claims arising under
chapter 57 of the Revised Judicature Act (RJA), MCL 600.5701 et
seq., which concerns proceedings to recover possession of premises.
Because the grant of jurisdictional authority in MCL 600.8302(1)
and (3) is a more specific grant than the general grant of
jurisdictional power found in MCL 600.8301(1), when a district
court’s actions flow from its power arising under chapter 57 of the
RJA its actions are within the scope of MCL 600.8302(1) and (3),
and MCL 600.8301(1) is inapplicable. Because subject-matter
jurisdiction is determined by referring to the pleadings and the
Clohsets’ complaint invoked the district court’s specific jurisdic-
tion under MCL 600.8302(1) and (3) and chapter 57 of the RJA,
that specific jurisdictional grant takes precedence over the more
general, $25,000 jurisdictional grant found in MCL 600.8301(1).
The district court had jurisdiction over this case and erred by
transferring it to the circuit court. Having properly acquired
jurisdiction, the district court was required to render a final
decision on the merits. The district court’s specific jurisdiction
over this case extended to the entry of the stipulated consent
judgment, even though the consent judgment included an agreed-
upon monetary component that, if it had been premised on the
district court’s general jurisdiction, would have exceeded the
otherwise applicable statutory jurisdictional limit.
2. Defendants were not entitled to collaterally attack during
the 2009 proceedings the October 1, 1999 consent judgment
2013] C
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entered by the district court. Because the district court had
subject-matter jurisdiction over this case, its exercise of jurisdic-
tion could only be challenged on direct appeal or by proper motion
to alter or amend the judgment. Defendants took no action to
challenge the judgment within a reasonable time and plaintiff was
entitled to enforce the judgment against defendants. Enforcement
of the judgment was not precluded even though the stipulated
money damages set forth in the consent judgment exceeded the
district court’s general jurisdictional amount otherwise applicable
in the district court.
3. Even if the consent judgment was premised on an error in
the exercise of the district court’s jurisdiction, the error was of the
parties’ own making. Defendants cannot complain about an error
created when they stipulated the entry of the consent judgment.
4. Because the district court had jurisdiction over this case and
improperly transferred the case to the circuit court, the circuit did
not have jurisdiction to rule on plaintiff’s motion to enter the
consent judgment, on defendants’ motion to dismiss, or the
parties’ cross-motions for summary disposition; the circuit court
should have transferred the case back to the district court pursu-
ant to MCR 2.227(A).
5. Under MCR 4.201(G)(2)(b), if a money claim or counter-
claim exceeding that district court’s jurisdiction is introduced in a
possession-of-premises claim, the court, on motion of either party
or on its own initiative, shall order removal of that portion of the
action to the circuit court, if the money claim or counter claim is
sufficiently shown to exceed the court’s jurisdictional limit. MCL
600.5739(1) provides that a party to summary proceedings may
join claims and counterclaims for money judgment for damages
attributable to wrongful entry, detainer, or possession, for breach
of the lease or contract under which the premises were held, or for
waste or malicious destruction to the premises. The court may
order separate summary disposition of the claim for possession,
without prejudice to any other claims or counterclaims. A claim or
counterclaim for money judgment shall not exceed the amount in
controversy that otherwise limits the jurisdiction of the court.
MCR 4.201(G)(2)(b) and MCL 600.5739(1) do not apply to this case
because the filing of a stipulated consent judgment does not
constitute the introduction of a claim or counterclaim for money
judgment. A claim is not introduced except as set forth in a
pleading and a stipulated consent judgment is not a pleading.
Because there was no claim or counterclaim for money judgment
introduced in the district court proceedings, MCR 4.201(G)(2)(b)
552 302 M
ICH
A
PP
550 [Oct
and MCL 600.5739(1) did not require that this case (or any portion
of the case) be transferred to the circuit court.
Vacated and remanded to the district court.
1. C
OURTS —
D
ISTRICT
C
OURTS —
E
QUITABLE
P
OWERS —
J
URISDICTION
.
District courts in Michigan have exclusive jurisdiction, under MCL
600.8301(1) over civil matters where the amount in controversy
does not exceed $25,000 and, pursuant to MCL 600.8302(1) and
(3), equitable jurisdiction and authority concurrent with that of
the circuit court with respect to equitable claims arising under
chapter 57 of the Revised Judicature Act (RJA), MCL 600.5701 et
seq., which concerns proceedings to recover possession of pre-
mises; the grant of jurisdictional authority in MCL 600.8302(1)
and (3) is a more specific grant than the general grant of
jurisdictional power found in MCL 600.8301(1) and takes prece-
dence over the general grant of jurisdictional authority; when a
district court’s actions flow from its power arising under chapter
57 of the RJA, its actions are within the scope of MCL 600.8302(1)
and (3) and MCL 600.8301(1) is inapplicable.
2. C
OURTS —
S
UBJECT
-M
ATTER
J
URISDICTION —
J
UDGMENTS —
A
PPEAL —
C
OLLAT-
ERAL
A
TTACK
.
Once a court’s jurisdiction has attached, mere errors or irregulari-
ties in the proceedings, no matter how grave, will not render the
court’s judgment void; until the judgment is set aside, it is valid
and binding for all purposes and cannot be collaterally attacked,
whereas the exercise of subject-matter jurisdiction can be chal-
lenged only on direct appeal.
3. C
OURTS —
D
ISTRICT
C
OURTS —
J
URISDICTION —
C
ONSENT
J
UDGMENTS
.
MCR 4.201(G)(2)(b) provides that if a money claim or counter-
claim exceeding the court’s jurisdiction is introduced in a
summary proceeding to recover the possession of premises, the
court shall order removal of that portion of the action to the
circuit court, if the money claim or counterclaim is sufficiently
shown to exceed the court’s jurisdictional amount; under MCL
600.5739(1), a party to summary proceedings to recover posses-
sion of premises may join claims and counterclaims for damages
attributable to wrongful entry, detainer, or possession, for
breach of the lease or contract under which the premises were
held, and the court may order separate summary disposition of
a claim for possession, but a claim or counterclaim for money
judgment may not exceed the amount in controversy that
otherwise limits the jurisdiction of the court; when a district
2013] C
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) 553
court has subject-matter jurisdiction under MCL 600.8302(1)
and (3) over an action for possession of premises, the filing of a
stipulated consent judgment that includes an award of mon-
etary damages that was not sought in the complaint but exceeds
the district court’s general jurisdictional limits, MCL
600.8301(1), does not constitute the introduction of a claim or
counterclaim for money judgment and does not require the
action to be transferred to the circuit court.
Butzel Long (by Michael J. Lavoie, David J. DeVine
and Joseph E. Richotte) for Phillip M. Clohset.
Jaffe Raitt Heuer & Weiss, PC (by David W. Williams
and Brian G. Shannon), for No Name Corporation,
Geraldine K. Goodman, and the Estate of Walter A.
Goodman.
ON REMAND
Before: K. F. K
ELLY
,P.J., and W
ILDER
and B
OONSTRA
,
JJ.
B
OONSTRA
, J. Plaintiff, Phillip M. Clohset, appeals as
of right the November 30, 2010, circuit court order
denying his motion for summary disposition and grant-
ing summary disposition in favor of defendants, No
Name Corporation (No Name), Geraldine K. Goodman,
and the estate of Walter A. Goodman (Walter), de-
ceased. By opinion issued on May 15, 2012, we vacated
the judgment of the Oakland Circuit Court and re-
manded to the 48th District Court for reinstatement
and enforcement of the stipulated consent judgment
entered on October 1, 1999. Clohset v No Name Corp,
296 Mich App 525; 824 NW2d 191 (2012).
On July 3, 2013, our Supreme Court vacated this
Court’s 2012 opinion and remanded for reconsideration
in light of MCL 600.5739(1) and MCR 4.201(G)(2)(b).
Clohset v No Name Corp, 494 Mich 874; 832 NW2d 387
(2013). We now again vacate the judgment of the circuit
554 302 M
ICH
A
PP
550 [Oct
court and remand to the district court for reinstate-
ment and enforcement of the stipulated consent judg-
ment issued on October 1, 1999.
The facts of this case are not in dispute. But the case
presents an unusual procedural history that requires us
to consider issues of (a) subject-matter jurisdiction and
(b) the validity, or degree of validity, of a stipulated
consent judgment entered by the district court in an
amount in excess of its jurisdictional limit.
Under the unusual circumstances outlined herein,
we conclude that the district court had subject-matter
jurisdiction over this case and that its entry of a
stipulated consent judgment was proper, without regard
to the jurisdictional amount-in-controversy limit that
applies under the district court’s general jurisdictional
authority. Moreover, having neither appealed nor prop-
erly moved to alter or amend the stipulated consent
judgment, defendants could not collaterally attack it,
under the circumstances presented, 10 years later. Our
conclusion derives in part from the well-established
maxim that a party may not properly create error in a
lower court and then claim on appeal that the error
requires reversal. See, e.g., Dresselhouse v Chrysler
Corp, 177 Mich App 470, 477; 442 NW2d 705 (1989) (“A
party is not allowed to assign as error on appeal
something which his or her own counsel deemed proper
[in the trial court] since to do so would permit the party
to harbor error as an appellate parachute.”).
We hold that the district court erred by transferring
the case to the circuit court pursuant to MCR
2.227(A)(1). Further, given the jurisdiction of the dis-
trict court, we hold that the circuit court erred by ruling
on the merits of the case, by dismissing plaintiff’s
claims, and by granting summary disposition to defen-
dants on plaintiff’s claims.
2013] C
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) 555
I. FACTUAL AND PROCEDURAL HISTORY
This action was originally brought by Clarence and
Virginia Clohset (the Clohsets). The Clohsets have since
passed away and plaintiff, Phillip Clohset, has taken
over as personal representative of their estates. The
Clohsets and defendant No Name entered into a lease
agreement for commercial premises in 1991, to which
defendants Geraldine and Walter obligated themselves
as guarantors for No Name. Defendant No Name sub-
sequently failed to make its rental payments. The
Clohsets filed a demand for possession on No Name in
the district court on October 6, 1998, demanding pos-
session of the premises. On October 21, 1998, they filed
a complaint against No Name for nonpayment of rent,
seeking possession of the premises and costs, but not
seeking money damages, which the complaint acknowl-
edged would exceed the district court’s general statu-
tory jurisdictional limit of $25,000. MCL 600.8301(1).
The complaint noted that money damages would be
sought in a separate action in circuit court.
On November 11, 1998, the Clohsets entered into a
settlement agreement with No Name, Geraldine Good-
man, and Walter Goodman, stating, in part, that No
Name owed the Clohsets $384,822.95, plus 9.5 percent
interest. The settlement agreement further required
the parties to execute “pocket” consent judgments for
entry, potentially, in the district court or the circuit
court. The consent judgments were to be held by the
Clohsets, and one or both were to be filed in the event
that No Name or the Goodmans defaulted on the
settlement agreement. When filed, the consent judg-
ments would add Geraldine Goodman and Walter Good-
man as named defendants, and would obligate all de-
fendants as set forth therein. Subsequently, the
Clohsets filed the district court consent judgment, along
556 302 M
ICH
A
PP
550 [Oct
with an affidavit from their attorney at the time,
stating that defendants had defaulted and owed the
Clohsets a net amount of $222,102.09, plus additional
amounts, including costs and attorney fees, as outlined
in the settlement agreement. The district court entered
the stipulated consent judgment on October 1, 1999.
1
Over nine years passed, during which time plaintiffs
Clarence and Virginia Clohset and defendant Walter
Goodman passed away, and then on March 24, 2009,
plaintiff sent defendant Geraldine Goodman a demand
letter for $222,102.09. Defendants stipulated with re-
gard to a renewal of the consent judgment and the
district court entered the stipulated renewal of consent
judgment on September 15, 2009. On October 14, 2009,
defendants moved to vacate the original, October 1,
1999, consent judgment on the ground that the district
court had lacked subject-matter jurisdiction over the
case. Plaintiff responded by moving to transfer the
proceedings to circuit court. The district court denied
defendants’ motion to vacate the judgment, granted
plaintiff’s motion to transfer (while striking proposed
language that would have found a lack of subject-matter
jurisdiction), and transferred the case to the circuit
court pursuant to MCR 2.227(A)(1) (which authorizes a
transfer only when the transferring court “determines
that it lacks jurisdiction of the subject matter of the
action”).
Plaintiff then moved for entry of the consent judg-
ment (previously entered in district court) in circuit
court. The circuit court denied that motion, finding the
1
On October 12, 1999, and February 23, 2000, the parties entered into
an Amendment and a Second Amendment of the settlement agreement,
respectively, and thereby reaffirmed their assent to the terms of the
settlement agreement, including, but not limited to, the entry of the
consent judgments.
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judgment was void for lack of subject-matter jurisdic-
tion in district court, dismissed the case without preju-
dice, and permitted plaintiff to file an amended com-
plaint. After filing an amended complaint, asserting
breach of the parties’ various agreements and related
equitable claims, plaintiff moved for summary disposi-
tion on his breach of contract claims only, and defen-
dants countered with a motion for summary disposition
on all plaintiff’s claims, both contract-based and equi-
table. The circuit court granted summary disposition in
favor of defendants and dismissed plaintiff’s claims.
Plaintiff claims on appeal that the circuit court erred
by denying his motion to enter the consent judgment in
circuit court, by dismissing his initial claims, and by
later denying summary disposition to plaintiff and
granting summary disposition to defendants.
II. STANDARD OF REVIEW
This Court reviews a trial court’s decision whether to
enter a consent judgment for an abuse of discretion. Cf.
Vestevich v West Bloomfield Twp, 245 Mich App 759,
763; 630 NW2d 646 (2001) (“This Court reviews for
abuse of discretion a trial court’s decision on a motion
to set aside a consent judgment.”). “An abuse of discre-
tion occurs when the trial court chooses an outcome
falling outside the range of principled outcomes.” Edry
v Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010),
citing People v Babcock, 469 Mich 247, 269; 666 NW2d
231 (2003). A motion under MCR 2.116(C)(8) tests the
legal sufficiency of a claim on the pleadings alone.
Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817
(1999). The motion should be granted only when the
plaintiff’s claims are “ ‘so clearly unenforceable as a
matter of law that no factual development could possi-
bly justify recovery.’ ” Id. (citation omitted). Likewise, a
558 302 M
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motion made under MCR 2.116(C)(9) tests the legal
sufficiency of a defense on the pleadings alone. BC Tile
& Marble Co, Inc v Multi Bldg Co, Inc, 288 Mich App
576, 582; 794 NW2d 76 (2010). The motion should be
granted only when “the defendant’s pleadings are so
clearly untenable that as a matter of law no factual
development could possibly deny the plaintiff’s right to
recovery.” Slater v Ann Arbor Pub Sch Bd of Ed, 250
Mich App 419, 425-426; 648 NW2d 205 (2002). We
review de novo a trial court’s grant of summary dispo-
sition on the basis of legally insufficient pleadings.
Maiden, 461 Mich at 118. A motion for summary
disposition under MCR 2.116(C)(10) tests the factual
sufficiency of the complaint. Liparoto Constr, Inc v Gen
Shale Brick, Inc, 284 Mich App 25, 29; 772 NW2d 801
(2009). When deciding a motion for summary disposi-
tion under this subrule, a court must consider the
pleadings, affidavits, depositions, admissions, and other
documentary evidence submitted in the light most
favorable to the nonmoving party. Corley v Detroit Bd of
Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). We
review de novo a trial court’s decision on a motion
under this subrule. Latham v Barton Malow Co, 480
Mich 105, 111; 746 NW2d 868 (2008). The underlying
question whether a court had subject-matter jurisdic-
tion is a question of law that this Court reviews de novo.
See Elba Twp v Gratiot Co Drain Comm’r, 493 Mich
265, 278; 831 NW2d 204 (2013).
III. ANALYSIS
Although plaintiff does not argue that the district
court had subject-matter jurisdiction to enter the con-
sent judgment, and does not challenge defendants’ right
to have collaterally attacked the judgment ten years
later or the circuit court’s holding that the judgment
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was void ab initio, a discussion of this issue is necessary
before proceeding with the parties’ arguments on ap-
peal. This Court does not generally address issues not
raised by the parties on appeal. See Mayberry v Gen
Orthopedics, PC, 474 Mich 1,4n3;704NW2d 69
(2005). However, “[a]ll courts ‘must upon challenge, or
even sua sponte, confirm that subject-matter jurisdic-
tion exists....’”Bezeau v Palace Sports & Entertain-
ment, Inc, 487 Mich 455, 479 n 2; 795 NW2d 797 (2010)
(Y
OUNG
, J., dissent), quoting Reed v Yackell, 473 Mich
520, 540; 703 NW2d 1 (2005) (opinion by T
AYLOR
, C.J.).
Further, this Court is empowered to “enter any judg-
ment or order or grant further or different relief as the
case may require.” MCR 7.216(A)(7).
A. THE DISTRICT COURT HAD SUBJECT-MATTER JURISDICTION, AND
ERRED BY TRANSFERRING THE CASE TO THE CIRCUIT COURT
District courts in Michigan have exclusive jurisdic-
tion over civil matters where the amount in controversy
does not exceed $25,000. MCL 600.8301(1). In addition,
district courts have “equitable jurisdiction and author-
ity concurrent with that of the circuit court” with
respect to equitable claims arising under chapter 57 of
the Revised Judicature Act (RJA), MCL 600.5701 et
seq., which concerns proceedings to recover possession
of premises. See MCL 600.8302(1) and (3).
This Court has previously held that MCL 600.8302(3)
is a “more specific” grant of jurisdictional authority
than the “general grant of jurisdictional power” found
in MCL 600.8301(1). Bruwer v Oaks (On Remand), 218
Mich App 392, 396; 554 NW2d 345 (1996), citing Driver
v Hanley, 207 Mich App 13, 17-18; 523 NW2d 815
(1994). “Because [MCL 600.8302(3)] is specific, it takes
precedence over [MCL 600.8301(1)].” Bruwer, 218 Mich
App at 396, citing Driver, 207 Mich App at 17-18. When
560 302 M
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a “district court’s action flowed from its power arising
under Chapter 57 of the RJA [MCL 600.5701 et seq.], its
actions are within the scope of [MCL 600.8302(3)], and
[MCL 600.8301(1)] is inapplicable.” Bruwer, 218 Mich
App at 396.
The Court in Bruwer faced an apparent “conflict
between the two jurisdictional statutes regarding
whether district courts have the jurisdiction to issue a
judgment in excess of [the then existing statutory limit
of] $10,000 when the case arises under Chapter 57 of
the RJA.” Id. Resolving that apparent conflict in favor
of the district court’s exercise of jurisdiction under the
circumstances presented, this Court held in Bruwer
that a district court “had jurisdiction to issue” a
$50,000 judgment on an appeal bond, in an action for
“land contract forfeiture under the summary proceed-
ings provisions of Chapter 57 of the [RJA].” Id. at 394,
396.
While it is true that a judgment entered by a court
that lacks subject-matter jurisdiction is void, Altman v
Nelson, 197 Mich App 467, 472-473; 495 NW2d 826
(1992), subject-matter jurisdiction is established by the
pleadings and exists “when the proceeding is of a class
the court is authorized to adjudicate and the claim
stated in the complaint is not clearly frivolous.” In re
Hatcher, 443 Mich 426, 444; 505 NW2d 834 (1993); see
also Grubb Creek Action Comm v Shiawassee Co Drain
Comm’r, 218 Mich App 665, 668; 554 NW2d 612 (1996),
citing Luscombe v Shedd’s Food Prod Corp, 212 Mich
App 537, 541; 539 NW2d 210 (1995) (“A court’s subject-
matter jurisdiction is determined only by reference to
the allegations listed in the complaint.”).
Because subject-matter jurisdiction is determined by
reference to the pleadings, and because the complaint
filed by the Clohsets in the district court invoked the
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district court’s specific jurisdiction under MCL
600.8302(1) and (3) and chapter 57 of the RJA, that
specific jurisdictional grant takes precedence over the
more general jurisdictional grant found in MCL
600.8301(1), which is inapplicable here. See, Bruwer,
218 Mich App at 396. The district court accordingly had
jurisdiction over this case.
Having properly acquired jurisdiction, the district
court was obliged to render a final decision on the
merits. “ ‘[W]hen a court of competent jurisdiction
has become possessed of a case, its authority contin-
ues, subject only to the appellate authority, until the
matter is finally and completely disposed of; and no
court of co-ordinate authority is at liberty to interfere
with its action.’ ” Schafer v Knuth, 309 Mich 133, 137;
14 NW2d 809 (1944), quoting MacLean v Wayne
Circuit Judge, 52 Mich 257, 259; 18 NW 396 (1884). A
matter is finally and completely resolved when a
judgment is entered. “A judgment [is] defined as the
final consideration and determination of a court of
competent jurisdiction on the matters submitted to
it.” 6A Michigan Pleading & Practice (2d ed, 2010),
§ 42:1, p 231. In other words, once a court acquires
jurisdiction, unless the matter is properly removed or
dismissed, that court is charged with the duty to
render a final decision on the merits of the case,
resolving the dispute, with the entry of an enforce-
able judgment.
Consistent with Bruwer, and with its authority and
obligation to render a judgment on a matter properly
before it, the district court’s specific jurisdiction over
this case extended to the entry of a stipulated consent
judgment presented by the parties, even though that
consent judgment included an agreed-upon monetary
component that, if it had been premised on the district
court’s general jurisdiction, would have exceeded the
562 302 M
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otherwise applicable statutory jurisdictional limit.
2
The
district court thus erred by granting plaintiff’s motion
to transfer the case to the circuit court.
3
B. DEFENDANTS CANNOT COLLATERALLY ATTACK
THE AGREED-UPON CONSENT JUDGMENT
When defendants defaulted on the subsequent settle-
ment agreement, the Clohsets entered a consent judg-
ment in district court for the $222,109.09 then owed by
defendants. This amount clearly exceeded the district
court’s general jurisdictional limit, if it applied here
(which we find it did not
4
).
Even assuming arguendo that this monetary compo-
nent of the stipulated consent judgment exceeded the
district court’s authority, defendants still could not
properly collaterally attack the entry of that judgment.
As the Michigan Supreme Court explained in Bowie v
Arder, 441 Mich 23, 49; 490 NW2d 568 (1992), quoting
Jackson City Bank & Trust Co v Fredrick, 271 Mich
538, 545; 260 NW 908 (1935) (citation omitted):
“Want of jurisdiction must be distinguished from error
in the exercise of jurisdiction. Where jurisdiction has once
2
The fact that the Clohsets’ district court complaint sought only
equitable relief did not preclude the inclusion of monetary relief in the
consent judgment. As MCR 2.601(A) provides, “every final judgment may
grant the relief to which the party in whose favor it is rendered is
entitled, even if the party has not demanded that relief in his or her
pleadings.”
3
We also are unaware of any published authority in Michigan that
would sanction the “postverdict” transfer of a case to the circuit court
merely for entry of a judgment, much less (as here) the transfer of a case
for further proceedings 10 years after the entry of a judgment, and the
unpublished authority, to the extent applicable, is unfavorable toward
such a transfer.
4
As noted already in this opinion the district court’s general jurisdic-
tional limit is “inapplicable” where, as here, the district court proceeds
pursuant to its specific jurisdictional grant under chapter 57 of the RJA.
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attached, mere errors or irregularities in the proceedings,
however grave, although they may render the judgment
erroneous and subject to be set aside in a proper proceeding
for that purpose, will not render the judgment void, and
until set aside it is valid and binding for all purposes and
cannot be collaterally attacked.”
In other words, “lack of subject matter jurisdiction can
be collaterally attacked[, whereas] the exercise of that
jurisdiction can be challenged only on direct appeal.” In
re Hatcher, 443 Mich at 439.
For the reasons noted, in this case there was no
“want of jurisdiction.” Rather, and because the district
court had jurisdiction, it could at most be argued that
the court erred in the “exercise of jurisdiction.” Accord-
ingly, as articulated in Bowie and Jackson, defendants
were not entitled to attack this judgment collaterally
during the 2009 proceedings; their only option, if any,
was to challenge the error on direct appeal
5
or by a
proper motion to alter or amend the judgment. Defen-
dants took no such actions within the time allowed.
6
As
a result, the original consent judgment, which was filed
in the district court on October 1, 1999, was valid,
although arguably then voidable (not void) by proper
5
We recognize that an appeal as of right may not have been available
to the parties with regard to the consent judgment, since they did not
reserve the right of appeal in the consent judgment itself. See Travelers
Ins v U-Haul of Mich, Inc, 235 Mich App 273, 278 n 4; 597 NW2d 235
(1999), citing Vanderveen’s Importing Co v Keramische Indust M deWit,
199 Mich App 359; 500 NW2d 779 (1993). This merely highlights the fact
that defendants failed to preserve any right of appeal by which to
properly challenge the entry of the consent judgment.
6
Although defendants ultimately moved to vacate the October 1, 1999,
consent judgment, they did not do so until October 14, 2009, over 10
years later. MCR 2.612(C)(2) provides that a motion to set aside a
judgment as “void” must be made within a reasonable time. See also
Laffin v Laffin, 280 Mich App 513, 521 n 1; 760 NW2d 738 (2008)
(applying the rule to a consent judgment). Defendants’ 10-year delay was
not reasonable under the circumstances of this case.
564 302 M
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and timely appeal or motion, and neither having oc-
curred, the stipulated renewal of the consent judgment,
filed in the district court in 2009, preserved the contin-
ued validity of the consent judgment. Plaintiff is there-
fore entitled to enforce the judgment against defen-
dants.
This conclusion is not negated by the fact that the
consent judgment provided stipulated relief that was
different in kind from that initially requested in the
district court complaint, or by the fact that the mon-
etary amount of the stipulated damages exceeded the
general jurisdictional limit of the district court. For the
reasons noted, the district court had specific subject-
matter jurisdiction under chapter 57 of the RJA, and
the general jurisdictional limit thus was “inapplicable.”
See, e.g., Bruwer, 218 Mich App at 396.
Moreover,
A consent judgment is different in nature from a judg-
ment rendered on the merits because it is primarily the act
of the parties rather than the considered judgment of the
court. No pleadings are required to support an agreed or
negotiated judgment. Consequently, a judgment by consent
is distinct from a judgment rendered by the court after trial.
[46 Am Jur 2d, Judgments, § 184, p 528 (2006) (emphasis
added).]
Consent decrees differ from typical judgments because
the “voluntary nature of a consent decree is its most
fundamental characteristic.” Local No 93, Int’l Ass’n of
Firefighters, AFL-CIO, CLC v City of Cleveland, 478 US
501, 521-522; 106 S Ct 3063; 92 L Ed 2d 405 (1986)
(recognizing that the agreement of the parties “serves
as the source of the court’s authority to enter any
judgment at all”). See also Goldberg v Trustees of
Elmwood Cemetery, 281 Mich 647, 649; 275 NW 663
(1937) (“A judgment by consent cannot ordinarily be set
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aside or vacated by the court without consent of the
parties thereto for the reason it is not the judgment of
the court but the judgment of the parties.”);
7
Walker v
Walker, 155 Mich App 405, 406; 399 NW2d 541 (1986)
(“When a party approves an order or consents to a
judgment by stipulation, the resultant judgment or
order is binding upon the parties and the court. Absent
fraud, mistake or unconscionable advantage, a consent
judgment cannot be set aside or modified without the
consent of the parties, nor is it subject to appeal.”)
(citations omitted).
Accordingly, the fact that the Clohsets’ complaint did
not seek money damages, and the fact that the stipu-
lated money damages (as set forth in the consent
judgment) exceeded the general jurisdictional amount
otherwise applicable in the district court, does not
preclude enforcement of the consent judgment.
C. HAVING CREATED THE ALLEGED ERROR IN THE ENTRY
OF THE CONSENT JUDGMENT, DEFENDANTS MAY NOT
HARBOR THAT ALLEGED ERROR AS AN APPELLATE PARACHUTE
As noted at the outset of this opinion, it is fundamen-
tal that a party may not create error in a lower court,
and then claim on appeal that the error requires rever-
sal. See, e.g., Dresselhouse, 177 Mich App at 477 (“A
party is not allowed to assign as error on appeal
something which his or her own counsel deemed proper
[in the trial court] since to do so would permit the party
to harbor error as an appellate parachute.”).
7
The Supreme Court in Goldberg, 281 Mich at 649, noted that “a
consent decree, in order to be valid, must come within the jurisdiction of
the court and cannot confer jurisdiction where the law confers none.”
Here, however, the parties’ consent judgment did not “confer jurisdiction
where the law confers none.” Rather, as noted, the district court
possessed specific subject-matter jurisdiction pursuant to chapter 57 of
the RJA.
566 302 M
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Here, defendants stipulated to the entry of the con-
sent judgment. The district court relied on that stipu-
lation in entering the consent judgment on October 1,
1999. Even assuming arguendo that the consent judg-
ment was premised on an error in the exercise of the
district court’s jurisdiction, that error was of the par-
ties’ own creation. Having created that error by stipu-
lating to the entry of the consent judgment, defendants
cannot now be heard to complain about that alleged
error. To sanction such an argument would be to permit
defendants to harbor their own error as an “appellate
parachute,” which we decline to do.
D. PLAINTIFF MAY ENFORCE THE CONSENT JUDGMENT
ACCORDING TO ITS TERMS
We are cognizant of the fact that, generally speaking,
a district court cannot render a judgment that exceeds
its jurisdictional limit. See, e.g., Zimmer v Schindehette,
272 Mich 407, 409; 262 NW 379 (1935) (holding void a
judgment rendered by a justice of the peace because it
was in an amount in excess of the justice’s jurisdiction);
Krawczyk v DAIIE, 117 Mich App 155, 163; 323 NW2d
633 (1982), rev’d in part on other grounds 418 Mich 231
(1983) (holding a judgment awarded in the district
court exceeding the then-existing jurisdictional limit of
$10,000 not invalid, provided that amounts in excess of
the jurisdictional limit can be attributed to costs, attor-
ney fees, and interest, or that the case represents an
exception, specified by statute, that would permit the
court to render a judgment over the jurisdictional
amount).
However, we find the general rule to be inapplicable
to the circumstances presented in this case. In the cited
cases, the plaintiffs’ claims fell within the general
jurisdiction of the court, and the judgments in those
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cases were thus constrained by the amount-in-
controversy limitations of the courts’ general jurisdic-
tion. By contrast, the Clohsets’ claims fell within the
district court’s specific jurisdiction under chapter 57 of
the RJA, and those general jurisdictional limits were
thus “inapplicable.” See, e.g., Bruwer, 218 Mich App at
396.
Even assuming arguendo that the general jurisdic-
tional limit applied, it might at most be argued that the
monetary amount of the consent judgment in excess of
the $25,000 general jurisdictional limit (plus interest,
costs, and attorney fees) was not recoverable, not that
the entirety of the judgment was void. This was the
result, for example, in Brooks v Mammo, 254 Mich App
486, 496; 657 NW2d 793 (2002), where this Court
limited the plaintiff’s recovery to the district court’s
$25,000 general jurisdiction limit.
But the circumstances in Brooks were in any event
unusual and largely inapplicable here. In Brooks, the
plaintiff had brought suit in the circuit court for an
amount in excess of the then-applicable $10,000 district
court general jurisdictional limit. Following a mediation
evaluation of $3,500, the circuit court transferred the
case to the district court, which then held a jury trial
that resulted in a jury verdict in the plaintiff’s favor in
the amount of $50,000. As of the trial date, former MCL
600.641 (which is not at issue here, but which had
permitted the removal of circuit court actions to the
district court even where the amount in controversy
otherwise would preclude it, and which further made
lawful subsequent jury verdicts in excess of the other-
wise applicable jurisdictional limit) had been repealed.
Before the judgment was entered on the jury verdict in
the district court, the jurisdictional limit of the district
court also had been increased to $25,000. This Court
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therefore was compelled “to determine the combined
effect that the repeal of MCL 600.641 and the subse-
quent amendment of MCL 600.8301 have on the verdict
returned by the jury in this case.” Id. at 493. This Court
held that, under the circumstances presented, the
plaintiff was entitled to a damages judgment, but nei-
ther in the amount of the jury verdict nor the amount of
the district court’s jurisdictional limit at the time of
trial. Rather, the plaintiff was entitled to damages in
the amount of the newly increased $25,000 jurisdic-
tional limit.
Even if Brooks were applicable here, its application
would not void the consent judgment. Rather it, would
only limit the recoverability of the judgment to the
amount of the district court’s general jurisdictional
limit of $25,000 (plus interest, costs, and attorney
fees).
8
As noted, however, we find that in light of the
district court’s specific jurisdiction in this case, the
general jurisdictional limit was inapplicable.
8
Even if the enforceability of the district court consent judgment were
so limited (which we expressly do not find), the settlement agreement
does not on its face appear to set any time limit for the entry of either
version of the consent judgment. Therefore, even under defendants’
reading of the settlement agreement (i.e., that the waiver of defenses
found in section VI of the settlement agreement related not to a later
filing of a suit for breach of the settlement agreement, but rather to the
entry of judgment), it appears (absent enforcement of the consent
judgment in the district court) that defendants have waived any defenses
to the entry of the circuit court consent judgment, should plaintiff
proceed to file it. This is because the settlement agreement states that the
waiver of defenses relates to the “entry of either or both” forms of the
consent judgment, i.e., the version prepared for entry in the district court
and the version prepared for entry in the circuit court. While only the
former has to date been filed, the settlement agreement provides that, in
the event of a default: (a) plaintiff may file the district court version of the
consent judgment “and/or” the circuit court version; (b) defendants are
obliged to “consent to all steps necessary to effectuate the entry of either
or both” such versions; and (c) defendants’ waiver of defenses relates to
the entry of “either or both” versions of the consent judgment.
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E. THE CIRCUIT COURT ERRED BY RULING ON THE MERITS
Because the district court had jurisdiction over this
case and improperly transferred the case to the circuit
court, the circuit court was completely without jurisdic-
tion to rule on plaintiff’s motion to enter the consent
judgment, on defendant’s motion to dismiss or, later, on
the parties’ cross-motions for summary disposition.
Accordingly, the circuit court erred by ruling on those
motions, and should instead have transferred the case
back to the district court pursuant to MCR 2.227(A).
Having reached the above conclusions, we need not
address plaintiff’s remaining arguments on appeal.
9
IV. PROCEEDINGS AFTER REMAND
As directed by our Supreme Court, we have reconsid-
ered our initial opinion, Clohset, 296 Mich App 525, in
9
The Court notes that, while not necessary to its decision in this case,
it is unpersuaded in any event that plaintiff lacked proper alternative
claims for breach of the settlement agreement, breach of the consent
judgment, or otherwise, or that those claims would be barred by the
applicable statute(s) of limitations, or otherwise. Therefore, absent
enforcement of the consent judgment, plaintiff may still have a valid
cause of action, in an appropriate court, for those alternative claims.
In that regard, this Court is compelled to note that it is particularly
troubled that, in contesting plaintiff’s argument that they waived the
statute of limitations defense, and while accusing plaintiff of a “blatant
mischaracterization” of the settlement agreement, defendants have used
an ellipsis to categorically alter the meaning of the waiver provision of
the settlement agreement. Rather than preserving “substantive de-
fenses,” as defendants suggest, the actual language of the settlement
agreement confirms that such defenses are waived. This Court makes no
judgment at this juncture regarding whether defendants made this
representation intentionally or merely in error. The Court additionally
notes that the statute of limitations is not, as defendants suggest, a
“substantive” defense, but rather is a “procedural one,” so that it would
have been waived even under defendants’ errant reasoning. Staff v
Johnson, 242 Mich App 521, 531; 619 NW2d 57 (2000).
570 302 M
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light of MCL 600.5739(1) and MCR 4.201(G)(2)(b). For
the reasons that follow, we conclude that neither the
statute nor the court rule alters our analysis or requires
a different outcome.
MCL 600.5739(1) provides:
Except as provided by court rules, a party to summary
proceedings may join claims and counterclaims for money
judgment for damages attributable to wrongful entry, de-
tainer, or possession, for breach of the lease or contract
under which the premises were held, or for waste or
malicious destruction to the premises. The court may order
separate summary disposition of the claim for possession,
without prejudice to any other claims or counterclaims. A
claim or counterclaim for money judgment shall not exceed
the amount in controversy that otherwise limits the juris-
diction of the court.
MCR 4.201(G) provides the procedure for joinder of
claims and counterclaims in summary proceedings to
recover possession of premises. MCR 4.201(G)(2)(b)
provides:
If a money claim or counterclaim exceeding the court’s
jurisdiction is introduced, the court, on motion of either
party or on its own initiative, shall order removal of that
portion of the action to the circuit court, if the money claim
or counterclaim is sufficiently shown to exceed the court’s
jurisdictional limit.
We conclude that the filing of a stipulated consent
judgment does not constitute the “introduction” of a
“claim or counterclaim for money judgment.” Claims
and counterclaims are stated in pleadings, and a plain-
tiff’s “statement of claim” is set forth in its complaint.
MCR 2.111(B). A party generally “must join every
claim” it possesses against the opposing party in “a
pleading.” MCR 2.203(A). Even when the joinder of
claims is permissive, the claims must be joined by a
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“pleader.” MCR 2.203(B). The term “pleading” is spe-
cifically and narrowly defined, and does not include a
consent judgment. MCR 2.110. “No other form of plead-
ing is allowed.” Id. A “claim” therefore is not “intro-
duced” except as set forth in a “pleading.” Indeed, the
proper way to “introduce” a claim that is not stated in
a party’s initial pleading is by way of an amendment to
the pleading. MCR 2.118(A); see also, e.g., Weymers v
Khera, 454 Mich 639, 663; 563 NW2d 647 (1997). The
filing of the stipulated consent judgment in this case
thus did not constitute the “introduction” of a “claim,”
and MCL 600.5730(1) and MCR 4.201(G)(2)(b) are
therefore inapplicable.
Also, as noted earlier, consent judgments differ sig-
nificantly from litigated judgments. It bears repeating
that “[a] consent judgment is different in nature from a
judgment rendered on the merits because it is primarily
the act of the parties rather than the considered judg-
ment of the court. No pleadings are required to support
an agreed or negotiated judgment. Consequently, a
judgment by consent is distinct from a judgment ren-
dered by the court after trial.” Am Jur, § 184 (emphasis
added). Consent decrees differ from litigated judgments
because the “voluntary nature of a consent decree is its
most fundamental characteristic.” Local No 93, 478 US
at 521-522 (recognizing that the agreement of the
parties “serves as the source of the court’s authority to
enter any judgment at all”).
Certainly, once entered, consent judgments are
treated the same as litigated judgments in terms of
their force and effect. Trendell v Solomon, 178 Mich
App 365, 368-369; 443 NW2d 509 (1989). However, the
fact that a stipulated consent judgment may be enforced
identically as a litigated judgment does not mean that a
district court lacks jurisdiction to enter a consent
572 302 M
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judgment merely because it may have lacked jurisdic-
tion to entertain a “claim” set forth in a “pleading” that
resulted in a litigated judgment.
The district court indisputably had jurisdiction over
plaintiff’s claim. We hold that, in the unique circum-
stances presented, it possessed authority to enter the
parties’ stipulated consent judgment. In any event, it
might at most be argued that the district court erred in
the exercise of jurisdiction relative to a portion of the
agreed-upon relief set forth in the stipulated consent
judgment. But, as noted, any such error could have been
challenged only on direct appeal, and not collaterally,
ten years later, as defendants seek to do in this case. See
Bowie, 441 Mich at 49; Jackson, 271 Mich at 545.
For these reasons, we hold that no “claim or coun-
terclaim for money judgment” was “introduced” in the
district court proceedings that would have necessitated
the transfer of this case (or any portion thereof) to the
circuit court. Therefore, neither MCL 600.5739(1) nor
MCR 4.201(G)(2)(b) compels us to alter our original
analysis or conclusion, as stated in this opinion.
V. CONCLUSION
We vacate the judgment of the circuit court and
remand to the district court for reinstatement and
enforcement of the consent judgment. We do not retain
jurisdiction.
K. F. K
ELLY
,P.J., and W
ILDER
, J., concurred with
B
OONSTRA
,J.
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OSHTEMO CHARTER TOWNSHIP v KALAMAZOO COUNTY
ROAD COMMISSION
Docket No. 304986. Submitted May 8, 2013, at Grand Rapids. Decided
June 25, 2013, at 9:05 a.m. Opinion vacated on reconsideration
and new opinion issued October 1, 2013, at 9:05 a.m. Leave to
appeal sought.
Oshtemo Charter Township brought an action in the Kalamazoo
Circuit Court against the Kalamazoo County Road Commission,
Alamo Township, and Kalamazoo Charter Township, seeking de-
claratory relief and a preliminary injunction that would stay the
decision of the road commission to void certain parts of an Oshtemo
Charter Township truck route ordinance under MCL 257.726(3). The
trial court, Alexander C. Lipsey, J., granted a preliminary injunction
after finding that plaintiff would likely prevail on the merits of the
case because, as a result of an apparent typographical error in the last
sentence of MCL 257.726(3), the road commission did not have the
authority to void the disputed parts of plaintiff’s ordinance. The road
commission appealed by leave granted. The Court of Appeals, Z
AHRA
and D
ONOFRIO
,JJ.(M
ETER
,P.J., concurring), construing the phrase
“MCL 247.671 to 247.675” in MCL 257.726(3) under the scrivener’s
error doctrine as “MCL 247.651 to 247.675,” held that the prelimi-
nary injunction had to be vacated. 288 Mich App 296 (2010). On
remand, the road commission moved for summary disposition. The
trial court granted partial summary disposition in favor of the road
commission, determining that MCL 257.726(3), which gives county
road commissions the authority to approve or void certain local truck
route ordinances, is constitutional and that the road commission’s
decision was authorized by law. The parties dismissed plaintiff’s
remaining claim by stipulation, and plaintiff appealed the trial
court’s order granting summary disposition in favor of defendants.
The Court of Appeals reversed and remanded for entry of summary
disposition in favor of plaintiff. The road commission moved for
reconsideration. The Court of Appeals granted the motion for recon-
sideration, vacated its previous opinion, and issued a new opinion.
On reconsideration, the Court of Appeals held:
Const 1963, art 7, § 29 reserves to counties, townships, cities,
and villages the right to reasonable control of roads within their
574 302 M
ICH
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574 [Oct
boundaries. Local governments may protect their specifically
reserved constitutional rights on behalf of the public they repre-
sent, including the right to reasonable control of roads within their
boundaries. Local governments may exercise reasonable control to
regulate matters of local concern, but only in a manner and to the
degree that the regulation does not conflict with state law. In this
case, plaintiff’s truck route ordinance did not conflict with state
law, either directly or by conflicting with an agency’s interpreta-
tion of state law. The Legislature exceeds its authority when it
attempts to prevent local governments from adopting reasonable
traffic regulations that are explicitly authorized by the Michigan
Constitution when the regulations do not conflict with state law. In
this case, MCL 257.726(3) was unconstitutional as applied because
it conflicted with Const 1963, art 7, § 29. The Legislature exceeded
its authority when it purported to grant a county road commission
the authority to void a township’s reasonable traffic control
ordinance. At the very least, a road commission must determine
that a township’s ordinance is unreasonable before it may void the
ordinance. The Kalamazoo County Road Commission did not
determine that the truck route ordinance was unreasonable before
voiding it; thus, MCL 257.726(3) was unconstitutional as applied.
Reversed and remanded for entry of summary disposition in
favor of plaintiff.
S
TATUTES —
M
ICHIGAN
V
EHICLE
C
ODE —
T
RUCK
R
OUTE
D
ESIGNATIONS —
C
ONSTI-
TUTIONAL
R
ESERVATIONS —
L
OCAL
C
ONTROL OF
R
OADS —
A
UTHORITY OF A
C
OUNTY
R
OAD
C
OMMISSION TO
V
OID A
L
OCAL
T
RUCK
R
OUTE
O
RDINANCE
.
Const 1963, art 7, § 29 reserves to counties, townships, cities, and
villages the right to reasonable control of roads within their
boundaries; the Legislature exceeds its authority when it purports
to grant a county road commission the authority to void a
township’s reasonable traffic control ordinance under MCL
257.726(3); at the very least, a county road commission must
determine that a township’s ordinance is unreasonable before it
may void the ordinance.
Fahey Schultz Burzych Rhodes PLC (by William K.
Fahey and Stephen J. Rhoades) and James W. Porter, P.C.
(by James W. Porter), for Oshtemo Charter Township.
Smith Haughey Rice & Roegge (by Jon D. Vander
Ploeg and Karl W. Butterer, Jr.), Lewis Reed & Allen,
P. C . (by Stephen Denenfeld), and Henn Lesperance PLC
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(by William L. Henn) for the Kalamazoo County Road
Commission.
Ford, Kriekard, Soltis & Wise, P.C. (by Robert A.
Soltis), for Alamo Township.
Bauckham, Sparks, Lohrstorfer, Thall & Seeber, P.C.
(by Kenneth C. Sparks), for Kalamazoo Charter Town-
ship.
ON RECONSIDERATION
Before: S
ERVITTO
,P.J., and W
HITBECK
and S
HAPIRO
,JJ.
P
ER
C
URIAM
. Plaintiff Oshtemo Charter Township
(Oshtemo Township) appeals as of right the circuit
court’s order granting summary disposition under MCR
2.116(C)(10) in favor of defendants Kalamazoo County
Road Commission (the Road Commission), Alamo
Township (Alamo Township), and Kalamazoo Charter
Township (Kalamazoo Township) on Oshtemo Town-
ship’s claim that the Road Commission’s decision to
void an Oshtemo Township truck route ordinance un-
der the authority of MCL 257.726(3) was invalid. We
reverse and remand.
I. OVERVIEW
Article 7, § 29 of the Michigan Constitution reserves
to counties, townships, cities, and villages the right to
reasonable control of the traffic within their bound-
aries. In MCL 257.726(1), the Michigan Legislature has
provided that townships may adopt truck route ordi-
nances, and in MCL 257.726(3), the Legislature has
purported to grant local road commissions the author-
ity to “approve or void” those ordinances.
We conclude that a township does not have the
authority to adopt any ordinance that conflicts with
576 302 M
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state law. An ordinance can conflict with state law by
conflicting with the rules of an administrative agency.
But county road commissions, despite being adminis-
trative agencies, do not have the authority to promul-
gate rules. A truck route ordinance does not conflict
with state law either directly or through the operation
of an administrative agency under MCL 257.726(3).
Because a reasonable truck route ordinance does not
conflict with state law, a township has the authority to
adopt one.
We also conclude that the Legislature may not over-
ride a power provided in the Constitution. Therefore, to
the extent MCL 257.726(3) allows a county road com-
mission to void a traffic control ordinance without
demonstrating that the ordinance is unreasonable, it
conflicts with the Michigan Constitution’s grant of the
power to townships to adopt reasonable traffic control
ordinances, and is unconstitutional as applied.
The Road Commission only has the authority to void
an unreasonable traffic control ordinance. Because the
Road Commission did not determine that the ordinance
was unreasonable, the Road Commission’s decision was
contrary to the Michigan Constitution, and thus it was
not authorized by law. Because the trial court improp-
erly determined that the decision was authorized by
law, we reverse and remand.
II. FACTS
A. OSHTEMO TOWNSHIP’S TRUCK ROUTE ORDINANCE
MCL 257.726(1) allows local authorities to pass an
ordinance that prohibits trucks on specified routes.
In March 2007, Oshtemo Township passed its Truck
Route Ordinance, which prohibits heavy trucks from
traveling on (1) 10th Street between both G and H
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Avenues, (2) 10th Street between West Main Street
and G Avenue, (3) 9th Street between West Main
Street and H Avenue, and (4) H Avenue between 9th
Street and Drake Road (collectively, the prohibited
routes).
1
The prohibited routes are all county primary
roads.
B. OBJECTIONS TO THE TRUCK ROUTE ORDINANCE
Effective January 13, 2009, the Legislature amended
MCL 257.726, adding subdivision (3).
2
MCL 257.726(3)
allows a township to object to an adjoining township’s
truck route ordinance and provides that the county
road commission will resolve the objection if the town-
ships fail to resolve it.
3
In February 2009, Kalamazoo
Township and Alamo Township challenged Oshtemo
Township’s truck route ordinance.
On May 21, 2009, after the parties failed to resolve
the dispute, the Road Commission determined that the
prohibited routes were primary roads and voided the
ordinance. On June 4, 2009, Oshtemo Township filed in
the Kalamazoo Circuit Court a claim of appeal and a
complaint against the Road Commission, Alamo Town-
ship, and Kalamazoo Township, seeking a preliminary
injunction and declaratory relief. Oshtemo Township
asserted in pertinent part that (1) MCL 257.726(3) did
not apply to the ordinance, (2) MCL 257.726(3) conflicts
with Const 1963, art 7, § 22 and, because Oshtemo
Township’s ordinance was reasonable, the Road Com-
mission improperly voided it, (3) MCL 257.726(3) un-
lawfully delegates authority to the Road Commission,
and (4) MCL 257.726(3) does not contain adequate
governing standards.
1
Oshtemo Township Ordinances, §§ 153.005 and 153.006.
2
2008 PA 539.
3
MCL 257.726(3).
578 302 M
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In June 2009, the trial court granted Oshtemo Town-
ship’s request for a preliminary injunction on the basis
that MCL 257.726(3) did not apply to the prohibited
routes because there were no truck routes designated
under the statutes to which MCL 257.726(3) refers. In
April 2010, this Court determined that the mistaken
reference was a scrivener’s error, and remanded the
case to the circuit court for further consideration.
4
C. OSHTEMO TOWNSHIP’S TRAFFIC CONTROL ORDER
On March 9, 2010, while this Court’s decision concern-
ing the preliminary injunction was pending, Oshtemo
Township appointed James J. Valenta as its traffic engi-
neer pursuant to the Michigan State Police’s Uniform
Traffic Code for Cities, Townships, and Villages, which
Oshtemo Township had adopted in September 2003.
5
Valenta issued a traffic control order on April 13, 2010,
under Rule 28.1151 of the Uniform Traffic Code. The
traffic control order contained a truck route map, desig-
nated specific roadways as truck routes, and prohibited
commercial truck traffic from “all other roadways in the
township....” On April 13, 2010, Oshtemo Township
adopted the traffic control order by resolution.
Kalamazoo Township and Alamo Township chal-
lenged the traffic control order on the same grounds
that they had challenged the ordinance, and argued
that the Road Commission resolution voiding the ordi-
nance also voided the traffic control order.
4
Oshtemo Charter Twp v Kalamazoo Co Rd Comm, 288 Mich App 296;
792 NW2d 401 (2010) (The statute states that for purposes of MCL
257.726(3), “county primary road” means “a highway or street desig-
nated as a county primary road pursuant to 1951 PA 51, MCL 247.671 to
247.675.” Under the scrivener’s error doctrine, we construed the phrase
“MCL 247.671 to 247.675” as “MCL 247.651 to 247.675.”).
5
See MCL 257.951.
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D. THE TRIAL COURT’S RULINGS
After this Court’s remand, the Road Commission
renewed its motion for summary disposition. In March
2011, the trial court heard oral argument concerning
the validity of the traffic control order. The trial court
determined that the traffic control order fell within the
purview of MCL 257.726, and determined that MCL
257.726(3) gave the Road Commission the authority to
resolve any conflict concerning the “respective rights
and responsibilities of the various townships in relation
to one another as to the appropriateness of particular
traffic patterns.” The trial court determined that the
Road Commission’s previous determination to void the
ordinance also voided the traffic control order. The trial
court ultimately concluded that MCL 257.726(3) was
constitutional, and granted summary disposition in the
Road Commission’s favor concerning the traffic control
order.
The trial court heard oral argument on April 18,
2011, concerning the Road Commission’s decision to
void the ordinance. The Road Commission contended
that the “shall be final” language of MCL 257.726(3)
precluded judicial review of its decision or, in the
alternative, that the trial court could only review the
decision for an abuse of discretion. Oshtemo Township
argued that the trial court must at the least determine
whether the Road Commission’s decision was reason-
able and whether it was authorized by law. Oshtemo
Township argued that under these standards, the deci-
sion by the Road Commission conflicted with the Michi-
gan Constitution’s protection of a township’s reason-
able control over its roads, and that the burden was on
the Road Commission to show that Oshtemo Town-
ship’s decision was unreasonable.
580 302 M
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The trial court found that MCL 257.726(3) was
constitutional, and that the Road Commission was
authorized to review and void the truck route ordi-
nance. It determined that the statute, “in essence,
provide[s] the County Road Commission with the au-
thority to arbitrate...the dispute.” It opined that it
had to review the Road Commission’s decision to void
Oshtemo Township’s ordinance for an abuse of discre-
tion, and found that the Road Commission did not
abuse its discretion when it voided Oshtemo Town-
ship’s ordinance. Accordingly, the trial court granted
summary disposition on the majority of Oshtemo Town-
ship’s claims. On June 22, 2010, the parties dismissed
Oshtemo Township’s remaining claim by stipulation.
Oshtemo Township now appeals.
III. STANDARDS OF REVIEW ON APPEAL
This Court reviews de novo the trial court’s decision
to grant or deny a motion for summary disposition in an
action for a declaratory judgment.
6
A party is entitled to
summary disposition under MCR 2.116(C)(10) if “there
is no genuine issue as to any material fact, and the
moving party is entitled to judgment...asamatter of
law.”
7
This Court reviews de novo issues of constitu-
tional law.
8
IV. THE TRIAL COURT’S REVIEW
A. OSHTEMO TOWNSHIP’S RIGHT TO JUDICIAL REVIEW
Article 6, Section 28 of the Michigan Constitution
provides that
6
Lansing Sch Ed Ass’n v Lansing Bd of Ed (On Remand), 293 Mich
App 506, 512-513; 810 NW2d 95 (2011).
7
See also Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999).
8
Harvey v Michigan, 469 Mich 1, 6; 664 NW2d 767 (2003).
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[a]ll final decisions, findings, rulings and orders of any
administrative officer or agency existing under the consti-
tution or by law, which are judicial or quasi-judicial and
affect private rights or licenses, shall be subject to direct
review by the courts as provided by law. This review shall
include, as a minimum, the determination whether such
final decisions, findings, rulings and orders are authorized
bylaw....
[
9
]
Alamo Township contends that Oshtemo Township
has no right to claim an appeal under this constitu-
tional provision because Oshtemo Township, as a public
entity, has no “private rights or licenses.” A private
right is “ ‘a personal right, as opposed to the right of the
public or the state.’ ”
10
Local governments may protect
their specifically reserved constitutional rights on be-
half of the public they represent.
11
As we will discuss,
the Michigan Constitution has reserved to local govern-
ments the specific right at issue in this appeal—
reasonable control of roads. Accordingly, we reject
Alamo Township’s argument that Oshtemo Township
had no private right that the Road Commission’s deci-
sion might affect.
B. STANDARDS OF REVIEW IN THE TRIAL COURT
When an agency makes a decision without a con-
tested case hearing, the trial court must review the
agency’s or officer’s decision to determine whether the
decision was authorized by law.
12
An agency’s decision is
not authorized by law if it violates a statute or consti-
9
Const 1963, art 6, § 28.
10
Midland Cogeneration Venture LP v Naftaly, 489 Mich 83, 93; 803
NW2d 674 (2011), quoting Black’s Law Dictionary (8th ed), p 1348.
11
See, e.g., Oakland Co v Michigan, 456 Mich 144, 167; 566 NW2d 616
(1997) (concerning standing).
12
Const 1963, art 6, § 28; Ross v Blue Care Network of Mich, 480 Mich
153, 164; 747 NW2d 828 (2008).
582 302 M
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tution, exceeds the statutory authority or jurisdiction of
the agency, is made after unlawful procedures that
result in material prejudice, or is arbitrary and capri-
cious.
13
Courts—including trial courts reviewing an
agency’s decision—review de novo issues of constitu-
tional law and statutory construction.
14
C. APPLYING THE STANDARDS
To the extent that the trial court determined that it
could review the Road Commission’s decision to void the
ordinance for an abuse of discretion, it may have erred.
The Road Commission did not hold a contested case
hearing, and MCL 257.726 does not require one. Thus, the
trial court should only have determined whether the Road
Commission’s decision was authorized by law. However,
the trial court’s possible application of an incorrect
standard, when the case hinges on whether the
agency’s decision was authorized by law, was a harm-
less error.
In this case, Oshtemo Township filed both a claim of
appeal and an action for a declaratory judgment. The
trial court found that the Road Commission was not
barred from voiding the ordinance by article 7, § 29 of
the Michigan Constitution of 1963, that the Road
Commission’s action was authorized by MCL
257.726(3), that the Road Commission’s decision was
not arbitrary and capricious, and that the Road Com-
mission did not act with bias. The trial court indicated
that it was taking its guidance from other cases. Those
cases clearly indicate that the trial court reviews these
13
Northwestern Nat’l Cas Co v Ins Comm’r, 231 Mich App 483, 488;
586 NW2d 563 (1998).
14
City of Taylor v Detroit Edison Co, 475 Mich 109, 115; 715 NW2d 28
(2006); In re Complaint of Rovas Against SBC Mich, 482 Mich 90, 102;
754 NW2d 259 (2008).
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issues under a de novo standard. Thus, we are not
convinced that the trial court applied an improperly
deferential standard—much less an abuse of discretion
standard—to its determination that the agency’s deci-
sion was authorized by law. In any event, we conclude
that any application of an incorrect standard by the
trial court in reviewing the Road Commission decision
to void Oshtemo Township’s ordinance was harmless.
V. MCL 257.726(3) CONFLICTS WITH ARTICLE 7,§29
OF MICHIGAN’S CONSTITUTION
A. LEGAL BACKGROUND
Agencies—such as county road commissions—do not
have any inherent authority. An agency is limited in
power and authority by its statutory enactment.
15
Agen-
cies “are only allowed the powers that the Legislature
chooses to delegate to them through statute.”
16
Somewhat similarly, townships possess only those
powers that are expressly granted by or fairly implied
from the Michigan Constitution or actions of the Leg-
islature.
17
Local control over roads is one of the powers
that the Michigan Constitution specifically grants to
townships:
18
“Except as otherwise provided in this
constitution the right of all counties, townships, cities
and villages to the reasonable control of their highways,
streets, alleys and public places is hereby reserved to
such local units of government.”
19
Both townships and
county road commissions have constitutional authority
15
People v Idziak, 484 Mich 549, 584; 773 NW2d 616 (2009).
16
Herrick Dist Library v Library of Mich, 293 Mich App 571, 582; 810
NW2d 110 (2011).
17
Hanselman v Wayne Co Concealed Weapon Licensing Bd, 419 Mich
168, 187; 351 NW2d 544 (1984); City of Taylor, 475 Mich at 115.
18
City of Taylor, 475 Mich at 116.
19
Const 1963, art 7, § 29.
584 302 M
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to exercise reasonable control of highways.
20
Thus,
neither has exclusive control.
21
“[F]or some purposes,
jurisdiction over its streets and roads remain[s] with
the township.”
22
For instance, a township does not need
to obtain prior consent from a county road commission
to enact an ordinance regulating truck traffic in the
township.
23
However, this Court has recognized that “if several
townships each designate noncontiguous routes a ‘cha-
otic patchwork’ will ensue” that may render certain
township ordinances unreasonable.
24
The Legislature
has granted county road commissions the following
authority in MCL 257.726(3):
If a township has established any prohibition or limita-
tion under [MCL 257.726(1)] on any county primary road
that an adjoining township determines diverts traffic onto
a border highway or street shared by the township and the
adjoining township, the adjoining township may submit a
written objection to the county road commission having
jurisdiction over the county primary road, along with a
copy to the township that established the prohibition or
limitation, on or before the later of March 1, 2009, or 60
days after the township approves the prohibition or limi-
tation. The written objection shall explain how the prohi-
bition or limitation diverts traffic onto the border highway
or street shared by the township and the adjoining town-
ship. The county road commission shall then investigate
the objection. The township and adjoining township shall
cooperate with that investigation and negotiate in good
faith to resolve the objection. If the objection is not resolved
20
Const 1963, art 7, § 29; Const 1963, art 7, § 16. See also Turner v
Washtenaw Co Rd Comm, 437 Mich 35, 36; 467 NW2d 4 (1991).
21
See Robinson Twp v Ottawa Co Bd of Rd Comm’rs, 114 Mich App
405, 411-412; 319 NW2d 589 (1982).
22
Id. at 412.
23
Id. at 414.
24
Id. at 414-415.
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within 60 days after the township receives the copy of the
written objection, the county road commission has the
authority to, and shall, either approve or void the prohibi-
tion or limitation that is the subject of the objection within
60 days thereafter, which decision shall be final. For
purposes of this subsection, “county primary road” means
a highway or street designated as a county primary road
pursuant to 1951 PA 51, MCL 247.6[5]1 to 247.675.
[
25
]
B. APPLICATION
1. THE PARTIES’ CONTENTIONS
Alamo Township contends that the Legislature ap-
pears to have designed this statute to address the
potential “chaotic patchwork” problem that this Court
recognized in Robinson Twp v Ottawa Co Bd of Rd
Comm’rs.
26
Oshtemo Township contends that the Leg-
islature’s attempt to address the problem, as written,
conflicts with Const 1963, art 7, § 29, and because the
Michigan Legislature cannot override the Michigan
Constitution, the Road Commission’s decision to void
Oshtemo Township’s ordinance under that statutory
provision was not authorized by law.
Kalamazoo Township contends in its brief on ap-
peal that the Road Commission’s decision properly
voided Oshtemo Township’s ordinance because the
ordinance—after the Road Commission’s decision—
was contrary to state law. However, Kalamazoo Town-
ship conceded at oral argument that the ordinance
was not, on its face, contrary to state law. Because of
the importance of this issue to Oshtemo Township’s
authority to enact its ordinance, we will briefly
explain why Oshtemo Township’s ordinance does not
conflict with state law.
25
See Oshtemo Charter Twp, 288 Mich App at 304.
26
Robinson Twp, 114 Mich App at 414.
586 302 M
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2. ORDINANCES MUST COMPLY WITH STATE LAW
“Michigan is strongly committed to the concept of
home rule, and constitutional and statutory provisions
which grant power to municipalities are to be liberally
construed.”
27
But Const 1963, art 7, § 29—which re-
serves certain authority to local governments—is ex-
plicitly subject to other constitutional provisions, in-
cluding Const 1963, art 7, § 22.
28
Const 1963, art 7, § 22
“empowers cities and villages ‘to adopt resolutions and
ordinances relating to its municipal concerns, property
and government, subject to the constitution and law.’”
29
The Michigan Supreme Court has interpreted this
constitutional grant of authority to mean that a town-
ship retains control of its highways and may pass
ordinances related to them, as long as those ordinances
“do not contravene the State laws.”
30
Thus, a local
government may “exercise ‘reasonable control’ to regu-
late matters of local concern, but only in a manner and
to the degree that the regulation does not conflict with
state law.”
31
Const 1963, art 7, § 29, reserving to local units of
government reasonable control over their highways,
only empowers a township to enact an ordinance that
does not conflict with state law. Therefore, if Osh-
temo Township’s ordinance conflicts with state law,
then Oshtemo Township simply does not have au-
thority to enact its ordinance.
27
Bivens v Grand Rapids, 443 Mich 391, 400; 505 NW2d 239 (1993).
28
City of Taylor, 475 Mich at 116.
29
Id., quoting Const 1963, art 7, § 22 (emphasis altered).
30
Fenton Gravel Co, Inc v Village of Fenton, 371 Mich 358, 362; 123
NW2d 763 (1963), quoting People v McGraw, 184 Mich 233, 238; 150 NW
836 (1915) (emphasis omitted).
31
City of Taylor, 475 Mich at 117-118.
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3. OSHTEMO TOWNSHIP’S ORDINANCE DOES NOT CONFLICT
WITH STATE LAW
An ordinance may conflict with state law in several
fashions. Pertinent to this case, Oshtemo Township’s
ordinance could conflict with state law by conflicting
with MCL 257.726(3) directly, or by conflicting with an
agency’s interpretation of state law. We conclude that
Oshtemo Township’s ordinance does not conflict with
state law in either of these two fashions.
Obviously, an ordinance conflicts with state law
when it directly conflicts with a statute.
32
In this case,
Oshtemo Township’s ordinance does not directly con-
flict with MCL 257.726, as subdivision (1) directly
allows Oshtemo Township to pass an ordinance regu-
lating truck routes. Nor does it conflict on its face
with subdivision (3), which provides that the county
road commission may approve or void such an ordi-
nance.
An ordinance also conflicts with state law if it con-
flicts with a validly promulgated rule of an administra-
tive agency.
33
In City of Taylor v Detroit Edison Co, for
example, the Legislature had granted the Michigan
Public Service Commission authority to promulgate
rules to enforce, among other things, the placement of
utility wires.
34
The commission promulgated rules that
possibly conflicted with the City of Taylor’s preexisting
ordinance.
35
The commission argued that the City of
Taylor’s ordinance was required to yield to the commis-
sion’s rules if they indeed conflicted.
36
32
Fenton Gravel Co, 371 Mich at 363.
33
See City of Taylor, 475 Mich at 123-124.
34
Id. at 118.
35
Id.
36
Id. at 119.
588 302 M
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The Michigan Supreme Court held that, to the extent
that the Taylor ordinance conflicted with the commis-
sion’s rules, the ordinance might not be valid because it
conflicted with state law.
37
In reaching its decision, the
Court stated that the cases supporting the City of
Taylor’s position “were decided before the [commis-
sion’s] promulgation of rules regarding the under-
ground relocation of wires. Thus, there was no state law
for the municipal action to conflict with.”
38
The Michi-
gan Supreme Court’s decision in City of Taylor clearly
hinged on the commission’s authority, delegated to it by
the Legislature, to promulgate rules that then became
state law.
In this case, the Legislature has not conferred the
authority to promulgate rules on local road commissions.
In arguing that Oshtemo Township has no right to judicial
review, Alamo Township asserts in its brief on appeal that
the Road Commission “is not a ‘state board, commission
or agency’ authorized under the laws of this State to
promulgate rules from which an appeal or other judicial
review has not otherwise been provided by law....[The
Road Commission] certainly is not...authorized to pro-
mulgate rules....” And MCL 257.726 does not itself
grant county road commissions the authority to promul-
gate rules to enforce its provisions.
We conclude that Oshtemo Township’s ordinance
does not conflict with state law, either directly or by
conflicting with an agency’s interpretation of state law.
4. MCL 257.726(3) IS UNCONSTITUTIONAL AS APPLIED
We conclude that MCL 257.726(3) is unconstitutional
as applied to a reasonable township traffic control
37
Id. at 123-124.
38
Id. at 119 (citations omitted).
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ordinance because the authority that it purports to
grant to county road commissions conflicts with article
7, § 29 of the Michigan Constitution. As this Court has
recently recognized, “when a statute contravenes the
provisions of the state constitution it is unconstitu-
tional and void.”
39
The Legislature’s authority does not
extend to eradicating constitutional guarantees.
40
The Michigan Supreme Court has held that the
Legislature exceeds its authority when it attempts to
prevent municipalities from adopting reasonable traffic
regulations, which are explicitly authorized by the
Michigan Constitution, when the regulations do not
conflict with state law.
41
In City of Dearborn v Sugden
& Sivier, Inc, the former version of MCL 257.726 was at
issue,
42
which provided that local authorities could limit
the weight of trucks on highways “except State trunk-
line highways....”
43
After the defendant was ticketed
for an excessive axle load, it challenged the ordinance,
arguing that the city had inappropriately placed a
weight limit on a trunk-line highway.
44
Noting that the
reasonableness of the ordinance was not at issue and
that “[i]t does not assume to authorize conduct by those
using its streets and highways of a character forbidden
by general State law,” the Court held that “the legisla-
ture exceeded its authority in undertaking to prevent
municipalities from adopting” such an ordinance.
45
39
AFSCME Council 25 v State Employees Retirement Sys, 294 Mich
App 1, 15; 818 NW2d 337 (2011).
40
See Midland Cogeneration Venture, 489 Mich at 94 (“The legislature
may not eradicate a constitutional guarantee....”).
41
See City of Dearborn v Sugden & Sivier, Inc, 343 Mich 257; 72 NW2d
185 (1955).
42
See 1994 PA 300.
43
Id. at 259, quoting former MCL 257.726, as set forth in 1949 PA 300.
44
Id. at 259-260.
45
Id. at 265-267.
590 302 M
ICH
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We conclude that the Legislature has exceeded its
authority to the extent that it has purported to grant a
county road commission the authority to void a town-
ship’s reasonable traffic control ordinance. At the very
least, the road commission must determine that the
township’s ordinance is unreasonable before it may
void the ordinance. In this case, despite the parties’
proffered evidence concerning the reasonableness of the
ordinance before the Road Commission, it did not
determine that the ordinance was unreasonable when it
resolved to void it. And when before the trial court, the
Road Commission, Kalamazoo Township, and Alamo
Township did not even attempt to demonstrate that
Oshtemo Township’s traffic control ordinance was un-
reasonable. Thus, we conclude that MCL 257.726(3)
was unconstitutional as applied.
VI. DELEGATION OF LEGISLATIVE AUTHORITY
Finally, we need not reach the merits of Oshtemo
Township’s argument concerning the validity of the Leg-
islature’s delegation of authority because of our previous
conclusion. But we do note that if a road commission’s
decision to “approve or void” an ordinance were not
limited to voiding those ordinances that are unreasonable,
the complete lack of standards contained in the
statute would very likely render it a constitutionally
deficient delegation of authority. The Legislature
“ ‘may delegate to an administrative body the power
to make rules and decide particular cases... .’”
46
Delegations of legislative authority include delegations of
rulemaking authority and “referral statute[s],” which
allow an agency to determine whether a fact has
46
Herrick Dist Library, 293 Mich App at 580, quoting West Virginia ex
rel Dyer v Sims, 341 US 22, 30; 71 S Ct 557; 95 L Ed 713 (1951).
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occurred that triggers the statute’s operation.
47
But in
such delegations, “[a] complete lack of standards is
constitutionally impermissible.”
48
In terms of a delegation of legislative authority, MCL
257.726(3) rests on very unsteady ground. In Blue Cross
& Blue Shield of Mich v Governor, the Michigan Su-
preme Court held that the Legislature’s instruction to
the Insurance Commissioner to “either ‘approve’ or
‘disapprove’ ” risk factors proposed by healthcare cor-
porations, without any guiding standards, was not a
constitutionally permissible delegation of legislative
authority.
49
This case is extremely similar to Blue Cross & Blue
Shield of Mich. Here, MCL 257.726 contains neither
factors for the road commission to consider when deter-
mining whether to “approve or void” an ordinance nor
guiding standards, even in the form of a generalized
statement of public policy. Thus, even if MCL
257.726(3) did not conflict with Const 1963, art 7, § 22
as applied to a reasonable traffic control ordinance, we
are extremely skeptical that it would pass constitu-
tional muster as, on its face, it would appear to confer
unlimited discretion, without guiding standards, on
county road commissions.
VII. CONCLUSION
We conclude that MCL 257.726(3) conflicts with
Const 1963, art 7, § 22 to the extent that it purports to
grant county road commissions the authority to void a
47
Taylor v Gate Pharmaceuticals, 468 Mich 1, 10; 658 NW2d 127
(2003). See also In re Complaint of Rovas Against SBC Mich, 482 Mich at
101.
48
Blue Cross & Blue Shield of Mich v Governor, 422 Mich 1, 55; 367
NW2d 1 (1985).
49
Id.at52.
592 302 M
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township’s reasonable traffic control ordinance when
that ordinance does not conflict with state law. In this
case, the Road Commission did not determine that
Oshtemo Township’s ordinance is unreasonable. Thus,
the Road Commission’s decision violated the Michigan
Constitution, and the trial court erred when it deter-
mined that the Road Commission’s decision to void
Oshtemo Township’s traffic control ordinance under
MCL 257.726(3) was authorized by law. Given our
conclusions, we need not reach Oshtemo Township’s
remaining issues.
We reverse and remand for entry of summary dispo-
sition in favor of Oshtemo Township. Because this
appeal does not involve a determination in a contested
case, we may not remand to the Road Commission for
additional fact-finding because our review is limited to
the administrative record.
50
However, we do not pre-
clude Kalamazoo and Alamo Townships from bringing a
new challenge to Oshtemo Township’s ordinance. The
trial court should specify in its order for dismissal that
this is not an adjudication on the merits for the pur-
poses of res judicata.
51
We do not retain jurisdiction.
Oshtemo Township, having prevailed in full, may tax
costs under MCR 7.219(A).
S
ERVITTO
,P.J., and W
HITBECK
and S
HAPIRO
, JJ., con-
curred.
50
See Mich Ass’n of Home Builders v Dep’t of Labor & Economic
Growth Director, 481 Mich 496; 750 NW2d 593 (2008).
51
See MCR 2.504(B)(3).
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In re TALH
Docket No. 314749. Submitted July 9, 2013, at Lansing. Decided
October 10, 2013, at 9:00 a.m. Leave to appeal sought.
AB, the minor child’s mother, and FB filed petitions in the Mecosta
Circuit Court, Family Division, seeking a stepparent adoption of
the minor child and termination of respondent’s parental rights.
Respondent acknowledged paternity of the minor child in April
2001, was ordered to pay child support, and had accumulated
arrearages of over $5,000 by June 2010. Respondent was convicted
of unarmed robbery in May 2010, sentenced to 4 to 30 years in
prison, and the previous child-support order was modified in June
2010, reducing his child-support payments to $0 a month, includ-
ing ordinary medical expenses. AB and FB married in April 2010
and filed the instant action in May 2012. During the summary
disposition hearing, petitioners acknowledged that respondent had
complied with his support order since its 2010 modification. The
court, Marco S. Menezes, J., granted respondent’s motion for
summary disposition and petitioners appealed.
The Court of Appeals held:
MCL 710.51(6) provides that if the parents of a child are
divorced, or if the parents are unmarried but the father has
acknowledged paternity or is a putative father for purposes of
MCL 710.39, and the parent who has legal custody of the child
subsequently marries and that parent’s spouse petitions to adopt
the child, the court may issue an order terminating the rights of
the other parent if (1) the other parent has failed or neglected to
provide regular and substantial support for the child, or if a
support order has been entered, has failed to substantially comply
with that order for a period of 2 years or more before the filing of
the petition, and (2) the other parent has the ability to visit,
contact, or communicate with the child but has substantially failed
or neglected to do so for a period of 2 years or more before the filing
of the petition Under the clear language of MCL 710.51(6), to
determine compliance with a child-support order, courts look only
at the order in effect during the two-year period immediately
preceding the filing of the termination petition, regardless of
whether arrearages had previously accrued that were not included
594 302 M
ICH
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594 [Oct
in the most recent order. In this case, the trial court did not err by
granting respondent’s motion for summary disposition because
respondent had undisputedly been in compliance with the most
current child-support order since its modification in June 2010;
respondent’s compliance with the original 2001 child-support
order was irrelevant because the order was modified in June 2010
and was the order in effect for the two-year period preceding
petitioners’ request for stepparent adoption and termination of
respondent’s parental rights.
Affirmed.
A
DOPTION —
S
TEPPARENT
A
DOPTION —
T
ERMINATION OF
P
ARENTAL
R
IGHTS —
C
OMPLIANCE WITH
C
HILD
S
UPPORT
O
RDER
.
MCL 710.51(6) provides that if the parents of a child are divorced, or
if the parents are unmarried but the father has acknowledged
paternity or is a putative father for purposes of MCL 710.39, and
the parent who has legal custody of the child subsequently marries
and that parent’s spouse petitions to adopt the child, the court
may issue an order terminating the rights of the other parent if (1)
the other parent has failed or neglected to provide regular and
substantial support for the child, or if a support order has been
entered, has failed to substantially comply with that order for a
period of 2 years or more before the filing of the petition, and (2)
the other parent has the ability to visit, contact, or communicate
with the child but has substantially failed or neglected to do so for
a period of 2 years or more before the filing of the petition; under
the clear language of MCL 710.51(6), to determine compliance
with a child-support order, courts look only at the order in effect
during the two-year period immediately preceding the filing of the
termination petition, regardless of whether arrearages had previ-
ously accrued that were not included in the most recent order.
Galloway Legal Services, PLLC (by Jennifer M. Gal-
loway), for petitioners.
Lobert & Fransted, PC (by Emily W. Fransted), for
respondent.
Before: S
AWYER
,P.J., and M
ETER
and D
ONOFRIO
,JJ.
P
ER
C
URIAM
. Petitioners, AB and FB, appeal as of
right an order granting summary disposition to respon-
dent, RH, under MCR 2.116(C)(10) and dismissing
2013] In re TALH
595
petitioners’ petitions for stepparent adoption and ter-
mination of respondent’s parental rights. Petitioners
argue that the lower court improperly found that re-
spondent had substantially complied with his child-
support obligations in accordance with the pertinent
time frame set forth in MCL 710.51(6). We affirm, but
we urge the Legislature to revisit the statute in ques-
tion to account for situations such as the present one.
AB and respondent are the biological parents of a
minor child. Respondent acknowledged paternity on
April 2, 2001, and AB has legal custody of the child.
Failing to regularly comply with his child-support order,
respondent developed arrearages of over $5,000 by June
2010.
In May 2010, respondent was convicted of unarmed
robbery and sentenced to 4 to 30 years’ imprisonment.
As a result, on June 9, 2010, the lower court modified
respondent’s previous support order, reducing his child-
support payments to $0 a month, including ordinary
medical payments.
In April 2010, AB married FB, and on May 4, 2012,
they petitioned the lower court for stepparent adoption
and for termination of respondent’s parental rights
under MCL 710.51(6), which states:
If the parents of a child are divorced, or if the parents
are unmarried but the father has acknowledged paternity
or is a putative father who meets the conditions in section
39(2) of this chapter, and if the parent having legal custody
of the child subsequently marries and that parent’s spouse
petitions to adopt the child, the court upon notice and
hearing may issue an order terminating the rights of the
other parent if both of the following occur:
(a) The other parent, having the ability to support, or
assist in supporting, the child, has failed or neglected to
provide regular and substantial support for the child or if a
596 302 M
ICH
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594 [Oct
support order has been entered, has failed to substantially
comply with the order, for a period of 2 years or more before
the filing of the petition.
(b) The other parent, having the ability to visit, contact,
or communicate with the child, has regularly and substan-
tially failed or neglected to do so for a period of 2 years or
more before the filing of the petition.
[
1
]
Thereafter, respondent filed a motion for summary
disposition under MCR 2.116(C)(10). During a hearing
on the motion, petitioners conceded that respondent
had complied with his support order since the time it
was modified, roughly 23 months before the filing of
their petitions. Nonetheless, petitioners argued that
respondent was not entitled to summary disposition
because he had failed to comply with his support order
in the years before its modification. The trial court
disagreed and granted respondent’s motion.
We review de novo a trial court’s grant of summary
disposition. Innovative Adult Foster Care, Inc v Ragin,
285 Mich App 466, 475; 776 NW2d 398 (2009). We also
review de novo issues of statutory interpretation. City
of Riverview v Sibley Limestone, 270 Mich App 627, 630;
716 NW2d 615 (2006).
We find the resolution of this case straightforward in
light of the pertinent statutory language and caselaw. It
is simply not in dispute that respondent substantially
complied with an entered support order for nearly the
entire two years preceding the petitions. See MCL
710.51(6)(a). In In re Halbert, 217 Mich App 607,
611-612; 552 NW2d 528 (1996), rev’d in part on other
grounds by In re Caldwell, 228 Mich App 116; 576
NW2d 724 (1998), this Court clearly ruled—contrary to
petitioners’ argument in the present case—that in
applying MCL 710.51(6), courts are to look at the
1
MCL 710.51(6)(b) is not at issue in this appeal.
2013] In re TALH 597
two-year period immediately preceding the filing of the
termination petition. The Court stated:
We conclude that the phrase “for a period of 2 years or
more before the filing of the petition” is plain, certain, and
unambiguous. A bare reading of the statute reveals that
the two-year statutory period must commence on the filing
date of the petition and extend backwards from that date
for a period of two years or more. Accordingly, we deter-
mine that the statute is satisfied and a petition for termi-
nation may be granted where the grounds for termination
have been shown to exist for at least two years immediately
preceding the filing of the termination petition.[Halbert,
217 Mich App at 612 (emphasis added).]
[
2
]
Under the clear and unambiguous statutory lan-
guage and under the caselaw applying that language,
petitioners’ claims must fail. Petitioners contend that
In re Hill, 221 Mich App 683; 562 NW2d 254 (1997),
applies and mandates reversal of the trial court’s ruling
because respondent accrued arrearages with regard to
his earlier support order. We do not agree, because Hill
is distinguishable. In Hill, id. at 693, the Court, in
analyzing whether MCL 710.51(6) authorized termina-
tion of the respondent’s parental rights, stated, “it is
only necessary to determine whether respondent had
substantially complied with [a] support order for a
period of two years or more before the filing of the
petition.” The Court then found that the respondent
had not done so because he had failed to pay confine-
ment expenses, blood-testing fees, and certain other
medical expenses that were required under the support
2
The Court in Halbert, 217 Mich App at 615-616, also ruled that the
respondent in that case did not fall within the scope of MCL 710.51(6)
because he was incarcerated and did not have the “wherewithal” to
provide support, but this ruling was expressly overruled by Caldwell.In
Caldwell, 228 Mich App at 121, the Court concluded that the statute
contains “no incarcerated parent exception.”
598 302 M
ICH
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594 [Oct
order. Id. at 693-694. It did not matter that the support
order had been entered many years before the filing of
the petitions to terminate parental rights and adopt, see
id. at 685, 693, because, evidently, the order had not
been modified in the interim and remained in effect.
3
The present case is different because the support order
in effect required $0 in monthly payments and petition-
ers conceded that respondent had complied with the
order since the time it was modified.
The trial court did not err by granting summary
disposition to respondent. However, we urge the Legis-
lature to revisit MCL 710.51(6) to address a situation
such as the present one. It seems ill-advised indeed for
a person to fail to provide child support, accrue arrear-
ages, and then fail to fall within the parameters of the
statute because of criminal actions leading to his or her
incarceration and a resultant modification (to zero) of
an earlier child-support order.
Affirmed.
S
AWYER
,P.J., and M
ETER
and D
ONOFRIO
, JJ., con-
curred.
3
Although not stated explicitly, this conclusion can be deduced from
the Court’s language. See, e.g., Hill, 221 Mich App at 693 (“In the present
case, a support order was entered on October 7, 1985. Therefore, it is only
necessary to determine whether respondent had substantially complied
with the support order for a period of two years or more before the filing
of the petition [in 1995].”). Clearly the Court was operating under the
assumption that the support order remained in effect.
2013] In re TALH 599
MOUNT PLEASANT PUBLIC SCHOOLS v MICHIGAN AFSCME
COUNCIL 25, AFL-CIO, AND ITS AFFILIATED LOCAL 2310
LAKEVIEW COMMUNITY SCHOOLS v LAKEVIEW EDUCATIONAL
SUPPORT PERSONNEL ASSOCIATION/MEA/NEA
Docket Nos. 304326, 304342. Submitted October 8, 2013, at Lansing.
Decided October 15, 2013, at 9:00 a.m. Leave to appeal sought.
AFSCME Council 25, AFL-CIO, and its affiliated Local 2310, filed an
unfair labor practice complaint with the Michigan Employment
Relations Commission (MERC) against Mount Pleasant Public
Schools, claiming that Mt. Pleasant had violated the public em-
ployment relations act, MCL 423.201 et seq. (PERA), because it
was denied an opportunity to bid on professional cleaning services
when Mt. Pleasant issued a request for proposal (RFP) for such
services in the school district, including locations already staffed
by AFSCME 2310 members. AFSCME demanded to negotiate the
bidding procedure, which Mt. Pleasant denied.
Lakeview Educational Support Personnel Association/MEA/NEA
(LESPA), filed an unfair labor practice complaint with MERC
against Lakeview Community Schools, claiming that it was not
given an equal opportunity to bid on an RFP issued by Lakeview to
subcontract student transportation services in the district because
the RFP limited bidding to independent contractors with at least
five years’ experience. LESPA submitted a demand to bargain the
bidding-process terms, as well as a demand to bargain the decision
and effects of subcontracting transportation, all of which Lakeview
denied.
The MERC hearing officer consolidated the actions. Charging
parties asserted that respondents had breached their duty to
bargain under MCL 423.210(1)(e) of PERA when they refused to
bargain over procedures for bidding on the subcontracting of
noninstructional support services pursuant to MCL 423.215(3)(f).
Following a consolidated hearing, the hearing officer made find-
ings of fact and recommended dismissal of AFSCME’s and LESPA’s
unfair labor practice charges. The MERC accepted the hearing
officer’s findings and the recommended orders of dismissal in both
actions, concluding that, (1) under MCL 423.215(3)(f), as amended by
600 302 M
ICH
A
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600 [Oct
2009 PA 201, the only issue to be bargained with regard to bidding
was whether the bargaining unit was to be given an opportunity to
bid on an equal basis as other bidders, (2) the respective RFPs were
properly designed for third-party contractors and the bargaining
units could be required to meet some of those requirements, and (3)
because the charging parties did not submit proper bids, they could
not complain that they were not given an equal opportunity to bid.
AFSCME and LESPA appealed.
The Court of Appeals held:
1. Under MCL 423.215(3)(f), collective bargaining between a
public school employer and a bargaining representative of its
employees does not include: (1) the decision to contract for
noninstructional support services, (2) the procedures for obtaining
that contract, (3) the identity of the third party, and (4) the impact
of the contract for noninstructional support services on individual
employees or the bargaining unit. The statute plainly provides
that bargaining may only occur on whether the public school
employer will allow the bargaining unit to bid on the contract on
an equal basis. MCL 423.215(3)(f) plainly states that once that
bargaining unit is provided with an equal opportunity to bid, then
the prohibition on bargaining applies; however, if the bargaining
unit is not provided with an equal opportunity to bid then the
section 15(3)(f) exceptions are subject to bargaining.
2. When the basis of an unfair labor practice charge is that the
charging party was denied an equal opportunity to bid on an equal
basis, the charging party has the burden of proof to establish that
it was not afforded an opportunity to bid on an equal basis as other
bidders. In this case, the MERC did not err by requiring AFSCME
and LESPA to establish that they were denied an equal bidding
opportunity.
3. There was competent, material, and substantial evidence to
support the MERC’s finding that AFSCME could not complain
that it was not provided an opportunity to bid on an equal basis
because it did not submit a proper bid. AFSCME should have
requested exceptions to the RFP’s requirement that it believed it
was unable to meet rather than failing to submit a bid. The MERC
did not err when it dismissed AFSCME’s unfair labor practice
charge.
4. There was competent, material, and substantial evidence to
support the MERC’s finding that LESPA could not complain that
it was not provided an opportunity to bid on an equal basis because
it did not submit a proper bid. LESPA’s bid was a proposal for a
collective bargaining agreement that sought to bargain over Mt.
Pleasant’s decision to subcontract, which is a prohibited subject of
2013] M
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LEASANT
S
CH V
M
ICH
AFSCME 601
bargaining under MCL 423.215(3)(f) and does not constitute a
proper bid. The MERC did not err when it dismissed LESPA’s
unfair labor practice charge.
5. The MERC did not abuse its discretion by denying AFSCME’s
motion to reopen the record because AFSCME did not fully address
the issue and failed to demonstrate that it could not have discovered
the evidence with reasonable diligence and produced it at the original
hearing.
Affirmed.
1. L
ABOR
R
ELATIONS —
P
UBLIC
S
CHOOL
E
MPLOYERS —
C
OLLECTIVE
B
ARGAINING —
B
ARGAINING
E
XCLUSIONS —
N
ONINSTRUCTIONAL
S
UPPORT
S
ERVICES
.
Under MCL 423.215(3)(f), collective bargaining between a public
school employer and a bargaining representative of its employees
does not include: (1) the decision to contract for noninstructional
support services, (2) the procedures for obtaining that contract, (3)
the identity of the third party, and (4) the impact of the contract
for noninstructional support services on individual employees or
the bargaining unit; bargaining may only occur on whether the
public school employer will allow the bargaining unit to bid on the
contract on an equal basis; once that bargaining unit is provided
with an equal opportunity to bid, then the MCL 423.215(3)(f)
prohibition on bargaining applies; if the bargaining unit is not
provided with an equal opportunity to bid then the MCL
423.215(3)(f) prohibitions are subject to bargaining.
2. L
ABOR
R
ELATIONS —
U
NFAIR
L
ABOR
P
RACTICES —
B
URDEN OF
P
ROOF —
O
PPORTUNITY TO
B
ID ON
E
QUAL
B
ASIS
.
When the basis of an unfair labor practice charge is that the
charging party was denied an equal opportunity to bid on an equal
basis, the charging party has the burden of proof to establish that
it was not afforded an opportunity to bid on an equal basis as other
bidders.
Thrun Law Firm, PC (by Donald J. Bonato) for
Mount Pleasant Public Schools.
Miller Cohen, PLC (by Robert D. Fetter), for Michigan
AFSCME Council 25, AFL-CIO, and its affiliated Local
2310.
Varnum LLP (by John Patrick White) for Lakeview
Commmunity Schools.
602 302 M
ICH
A
PP
600 [Oct
Kalniz, Iorio & Feldstein Co, LPA, (by Fillipe S.
Ioria), for Lakeview Educational Support Personnel
Association/MEA/NEA.
Before: S
ERVITTO
,P.J., and W
HITBECK
and O
WENS
,JJ.
P
ER
C
URIAM
. This matter involves a consolidated appeal
from the Michigan Employment Relations Commission
(MERC). In Docket No. 304326, the charging party, Michi-
gan AFSCME Council 25, AFL-CIO, and its affiliated
Local 2310 (AFSCME), appeals as of right the MERC’s
order dismissing its unfair labor practice charge against
Mount Pleasant Public Schools (Mt. Pleasant). In Docket
No. 304342, the charging party, Lakeview Educational
Support Personnel Association/MEA/NEA (LESPA), ap-
peals as of right the MERC’s order dismissing its unfair
labor practice charge against Lakeview Community
Schools (Lakeview). The MERC reviewed the cases to-
gether and determined that the respondents did not
breach their duty to bargain under the public employment
relations act (PERA), MCL 423.210(1)(e), when they re-
fused to bargain over procedures for bidding on the
subcontracting of noninstructional support services pur-
suant to section 15(3)(f) of PERA, MCL 423.215(3)(f). We
affirm the MERC’s order in both appeals.
I. FACTS
A. DOCKET NO.
304326
On March 15, 2010, Mt. Pleasant issued a request
for proposal (RFP) for professional cleaning services
for many of the locations within the district, includ-
ing those already staffed by AFSCME 2310 members.
AFSCME demanded to negotiate the bidding proce-
dure, but Mt. Pleasant denied its request. AFSCME
filed a charge against Mt. Pleasant, alleging that it
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had violated sections 10(1)(e), 15(1)(e), and 15(3)(f) of
PERA, in that it was denied an equal opportunity to
bid on professional cleaning services. AFSCME al-
leged that Mt. Pleasant had failed to bargain in good
faith, even though it was mandatory.
The hearing officer issued an order to show cause
why the charge should not be dismissed without a
hearing. Specifically, the order noted that section
15(3)(f), of PERA as amended by 1994 PA 112, does not
require a school district to bargain with a labor organi-
zation over the subcontracting of noninstructional sup-
port services. Rather, the order recognized that it only
requires that the school district give the bargaining unit
“an opportunity to bid on the contract for the nonin-
structional support services on an equal basis as other
bidders.” See section 15(3)(f) of PERA, as amended by
2009 PA 201. The order also made it clear that the
current section 15(3)(f) does not make bidding for the
subcontracting of noninstructional support services a
mandatory subject of bargaining.
AFSCME responded to the order to show cause,
arguing that it was denied an opportunity to bid on an
equal basis because the RFP required the bidders to be
a corporation that has been in business for at least 5
years, and the union could not meet these require-
ments. Also, AFSCME argued that most of the provi-
sions in the RFP were impossible for the union to
comply with. AFSCME argued that the section 15(3)(f)
language, as amended by 2009 PA 201, which prohibited
from bargaining “the procedures for obtaining the
contract for noninstructional support services other
than bidding described in this subdivision,” excluded
the procedures for providing a bid on an equal basis as
one of the prohibited subjects of bargaining. Further,
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AFSCME interpreted section 15(3)(f) to state that if the
union was not provided with an opportunity to bid on
an equal basis, then subcontracting is no longer a
prohibited subject of bargaining.
B. DOCKET NO. 304342
On January 22, 2010, Lakeview provided prospective
bidders with an RFP to notify them that it was seeking
bids for student transportation services. On January 25,
2010, LESPA submitted a demand to bargain the bidding-
process terms, which Lakeview declined. LESPA then
submitted a “renewed” demand to bargain the bidding-
process terms, as well as a demand to bargain the decision
and effects of subcontracting transportation, which Lake-
view also declined.
On March 8, 2010, LESPA filed a charge against
Lakeview, alleging that Lakeview violated sections
10(1)(a), 10(1)(c), and 10(1)(e) of PERA in that it had
denied LESPA the opportunity to bid on a transporta-
tion contract on an equal basis as other bidders, and
had refused to bargain.
The hearing officer also issued an order to show
cause that contained identical language to that of the
order issued to AFSCME with regard to the interpreta-
tion of section 15(3)(f). LESPA responded to the order
to show cause, arguing that the recent amendment to
section 15(3)(f) restored the rights of the parties to
collectively bargain over the subcontracting of nonin-
structional support services. LESPA argued that bid-
ding is now a mandatory subject of bargaining. Further,
LESPA asserted that the collective bargaining prohibi-
tion on other aspects of subcontracting, such as the
decision and impacts of subcontracting, is not appli-
cable if a bargaining unit is not given an equal oppor-
tunity to bid. LESPA argued that it was not given an
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equal opportunity to bid because the RFP provided that
the bidding was limited to independent contractors
with at least five years of experience, and the union
could not meet these requirements.
C. THE MERC DECISION
A formal hearing was held by the hearing officer in
which the cases were consolidated. The hearing officer
determined that the prohibition on bargaining over
subcontracting “continues to apply as long as the bar-
gaining unit is given an opportunity to bid on the
contract on an equal basis as other bidders.” Following
the hearing and after considering the parties’ excep-
tions to the hearing officer’s findings, the MERC ac-
cepted those findings, and issued an order dismissing
both of the charging parties’ unfair labor practice
charges. The MERC stated the following:
The 2009 amendment to Section 15 expressly prohibits
bargaining over the procedures for obtaining a contract for
noninstructional support services. The exemption asserted
by Charging Parties does not apply to bidding in general. It
applies to “the bidding described in this subsection.” The
bidding described in subsection 15(3)(f) is the “opportunity
to bid on the contract for the noninstructional support
services on an equal basis as other bidders.” Giving due
consideration to the general purpose of the 1994 and 2009
amendments to Section 15 of PERA, we find that the only
issue to be bargained with regard to bidding is whether the
bargaining unit is to be given an opportunity to bid on an
equal basis as other bidders. If a public school employer
fails to give the bargaining unit an opportunity to bid on an
equal basis as other bidders, the prohibitions of subsection
15(f) [sic] are removed. If the bargaining unit is given an
equal opportunity to bid, bargaining over other procedures
for obtaining the contract, including the procedures for
bidding, is prohibited.
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The MERC further stated that, contrary to the charging
parties’ argument, it is to be expected that the RFP will be
designed for third-party contractors and the bargaining
units will be required to meet some of those requirements.
The MERC noted that the statute “provides for an equal
bidding opportunity, not one that is designed for response
by a bargaining unit or a labor organization.” Finally, the
MERC concluded that because the charging parties did
not submit proper bids, they could not complain that they
were not given an equal opportunity to bid.
The charging parties filed these appeals, arguing that
the MERC (1) misinterpreted section 15(3)(f) of PERA; (2)
erroneously shifted the burden of proof to the charging
parties to demonstrate that they were not provided with
an equal opportunity to bid; and (3) failed to support its
findings with competent, material, and substantial evi-
dence. In addition, AFSCME argued that the MERC
erroneously denied its motion to reopen the record.
II. INTERPRETATION OF MCL 423.215(3)(F)
First, the charging parties argue that the MERC
misinterpreted MCL 423.215(3)(f). We disagree. Ques-
tions of statutory interpretation are reviewed de novo.
Macomb Co v AFSCME Council 25 Locals 411 & 893,
494 Mich 65, 77; 833 NW2d 225 (2013). “As a result, an
administrative agency’s legal rulings are set aside if
they are in violation of the constitution or a statute, or
affected by a substantial and material error of law.” Id.
(quotation marks and citation omitted).
In In re Harper, 302 Mich App 349, 354-355; 839 NW2d
44 (2013), this Court recently provided the foundation for
reviewing questions of statutory interpretation:
The “primary goal” of statutory interpretation “is to
discern the intent of the Legislature by first examining the
plain language of the statute.” Driver v Naini, 490 Mich 239,
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246-247; 802 NW2d 311 (2011). A statutory provision must be
read in the context of the entire act, and “every word or
phrase of a statute should be accorded its plain and ordinary
meaning.” Krohn v Home-Owners Ins Co, 490 Mich 145, 156;
802 NW2d 281 (2011). When the language is clear and
unambiguous, “no further judicial construction is required or
permitted, and the statute must be enforced as written.”
Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d
219 (2002) (quotation marks and citation omitted). Only
when the statutory language is ambiguous may a court
consider evidence outside the words of the statute to deter-
mine the Legislature’s intent. Sun Valley Foods Co v Ward,
460 Mich 230, 236; 596 NW2d 119 (1999). However, “[a]n
ambiguity of statutory language does not exist merely be-
cause a reviewing court questions whether the Legislature
intended the consequences of the language under review. An
ambiguity can be found only where the language of a statute,
as used in its particular context, has more than one common
and accepted meaning.” Papas, 257 Mich App at 658.
“If a statute does not expressly define its terms, a court
may consult dictionary definitions.” People v Gregg, 206
Mich App 208, 211-212; 520 NW2d 690 (1994).
Section 15 of PERA provides that a public employer
has the duty to bargain in good faith with the bargain-
ing unit over mandatory subjects of bargaining, which
include wages, hours, and other terms and conditions of
employment. MCL 423.215(1); see also Amalgamated
Transit Union, Local 1564, AFL-CIO v Southeastern
Mich Transp Auth, 437 Mich 441, 450, n 4; 473 NW2d
249 (1991) (noting that subjects falling within the scope
of wages, hours, and other terms and conditions of
employment are known as mandatory subjects of bar-
gaining). The statute recognizes that “[a] public school
employer has the responsibility, authority, and right to
manage and direct on behalf of the public the opera-
tions and activities of the public schools under its
control.” MCL 423.215(2). Accordingly, there are cer-
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tain subjects that are prohibited from bargaining, and
are provided in section 15(3)(f), which is the statute at
issue. MCL 423.215(3)(f) and (4), provide:
(3) Collective bargaining between a public school em-
ployer and a bargaining representative of its employees
shall not include any of the following subjects:
***
(f) The decision of whether or not to contract with a
third party for 1 or more noninstructional support
services; or the procedures for obtaining the contract for
noninstructional support services other than bidding
described in this subdivision; or the identity of the third
party; or the impact of the contract for noninstructional
support services on individual employees or the bargain-
ing unit. However, this subdivision applies only if the
bargaining unit that is providing the noninstructional
support services is given an opportunity to bid on the
contract for the noninstructional support services on an
equal basis as other bidders.
[1]
(4) Except as otherwise provided in subsection (3)(f), the
matters described in subsection (3) are prohibited subjects
of bargaining between a public school employer and a
bargaining representative of its employees, and, for the
purposes of this act, are within the sole authority of the
public school employer to decide.
In Mich AFSCME Council 25 v Woodhaven-
Brownstone Sch Dist, 293 Mich App 143, 156; 809
NW2d 444 (2011), this Court interpreted MCL
423.215(3)(f):
1
Prior to its amendment in 2009, section 15(3)(f) provided:
(f) The decision of whether or not to contract with a third party
for 1 or more noninstructional support services; or the procedures
for obtaining the contract; or the identity of the third party; or the
impact of the contract on individual employees or the bargaining
unit.
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Our consideration of the placement of the exception for
bidding described in MCL 423.215(3)(f) and the require-
ment that there be an “opportunity to bid on the con-
tract... on an equal basis as other bidders” reveals no
ambiguity. The word “bid,” in a contractual setting, de-
notes an offer. It is defined in Random House Webster’s
College Dictionary (1997) as “to offer (a certain sum) as the
price one will charge or pay: They bid $25,000 and got the
contract.” The phrase “equal basis as other bidders,”
examined in context, also is not ambiguous. It does not
support plaintiffs’ position that they were entitled to input
into the terms of any request for proposal before the
bidding process, or to have terms drafted in a manner that
would permit the bargaining unit an opportunity to submit
a bid on terms that differed from those of other potential
bidders. This approach would put plaintiffs in a superior
position to other bidders.
While opinions of the Attorney General are not binding
on the courts, Danse Corp v City of Madison Hts, 466 Mich
175, 182 n 6; 644 NW2d 721 (2002), we find the Attorney
General’s interpretation of MCL 423.215(3)(f) in OAG,
2010, No 7249 (June 15, 2010), persuasive with respect to
the legislative intent. In particular, we conclude that once
the opportunity is afforded to a bargaining unit to bid for a
contract on an equal basis with other bidders, the prohibi-
tion against collective bargaining concerning all listed
subjects in MCL 423.215(3)(f) applies.
[
2
]
2
The charging parties argue that this Court’s interpretation of section
15(3)(f) in Woodhaven is dictum. This Court has defined dictum as “ ‘[a]
judicial comment made during the course of delivering a judicial opinion,
but one that is unnecessary to the decision in the case and therefore not
precedential (though it may be considered persuasive).’ ” People v
Higuera, 244 Mich App 429, 437; 625 NW2d 444 (2001), quoting Black’s
Law Dictionary (7th ed). This Court’s interpretation of section 15(3)(f)
was not dictum. In Woodhaven, this Court was asked to review the circuit
court’s grant of a preliminary injunction, which enjoined the defendant
“from privatizing custodial, facility maintenance, and transportation
work performed by members of the bargaining unit pending resolutions
of [the] plaintiffs’ unfair labor practice charge before the [MERC].”
Woodhaven, 293 Mich App at 145. This Court noted that “it is apparent
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As this Court correctly determined, the plain lan-
guage of section 15(3)(f) provides that “once the oppor-
tunity is afforded to a bargaining unit to bid for a
contract on an equal basis with other bidders, the
prohibition against collective bargaining concerning all
listed subjects in MCL 423.215(3)(f) applies.”
Woodhaven, 293 Mich App at 156. The last sentence of
section 15(3)(f) clearly states that the subdivision only
applies “if the bargaining unit that is providing the
noninstructional support services is given an opportu-
nity to bid on the contract for the noninstructional
support services on an equal basis as other bidders.”
Therefore, if the bargaining unit is provided an equal
opportunity to bid, then the prohibitions on bargaining
listed in section 15(3)(f) remain. However, if the bar-
gaining unit is not provided with an equal opportunity
to bid, then the four subjects listed in section 15(3)(f)
are not prohibited from bargaining. This exception was
recognized by section 15(4), which states, “Except as
otherwise provided in subsection (3)(f), the matters
described in subsection (3) are prohibited subjects of
bargaining....”Therefore, it is clear that the Legisla-
ture intended for the four subjects of bargaining to
remain prohibited, unless the bargaining unit was not
afforded an equal opportunity to bid.
The charging parties argue that the procedures for
how to bid on an equal basis are never prohibited.
However, this assertion is incorrect. The statute states
that the procedures for obtaining the contract, other
from the record that the issue central to the likelihood of [the] plaintiffs
succeeding on the merits of their unfair labor practice charge is whether
they were given ‘an opportunity to bid on the contract for the nonin-
structional support services on an equal basis as other bidders.’ ” Id.at
155, quoting MCL 423.215(3)(f). Thus, the interpretation of section
15(3)(f) was necessary to the decision of the case and has precedential
value.
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than bidding described in this subdivision, are prohib-
ited subjects of bargaining. The only bidding described
in MCL 423.215(3)(f) is “an opportunity to bid on the
contract for the noninstructional support services on an
equal basis as other bidders.” As previously discussed,
whether the bargaining unit is afforded an equal oppor-
tunity to bid is what determines whether the prohibi-
tions on bargaining listed in section 15(3)(f) apply.
Accordingly, pursuant to the plain language of the
statute, bargaining would be allowed only on the sub-
ject of whether the public school employer will allow the
bargaining unit to bid on the contract on an equal basis.
If the bargaining unit is not afforded an opportunity
to bid on an equal basis, causing the procedures for
obtaining the contract to become a subject of bargain-
ing, respondents argue that it is a permissive subject
and not a mandatory subject of bargaining. However,
this interpretation is inconsistent with the plain lan-
guage of the statute. The statute clearly states that “[a]
public employer shall bargain collectively with the
representatives of its employees... with respect to
wages, hours, and other terms and conditions of em-
ployment....”MCL423.215(1) (emphasis added). The
word “shall” generally denotes a “mandatory direc-
tive.” See Smitter v Thornapple Twp, 494 Mich 121,
154; 833 NW2d 875 (2013) (M
C
C
ORMACK
, J dissenting)
(noting that she agreed with the majority’s interpreta-
tion of the word “shall”). And as discussed earlier, our
Supreme Court has indicated that anything falling
within the phrase “wages, hours, and other terms and
conditions of employment” is a mandatory subject of
bargaining. Amalgamated Transit Union, 437 Mich at
450, n 4. The statute further provides that collective
bargaining “shall not include” procedures for obtaining
the contract, which presumably would incorporate bid-
ding procedures. However, this is only true if the
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bargaining unit was provided with an opportunity to
bid on an equal basis. If the bargaining unit was not
provided with an opportunity to bid on an equal basis,
then the public school employer’s mandatory duty to
bargain, as provided in section 15(1), over the bidding
procedures is triggered. Contrary to respondents’ argu-
ment, nothing in the statute states that the public
school employer may bargain over the procedures for
obtaining the contract if it did not provide the bargain-
ing unit with an opportunity to bid on an equal basis.
In sum, the plain language of the statute prohibits
collective bargaining over four subjects: (1) the decision
to contract for noninstructional support services, (2)
the procedures for obtaining that contract, (3) the
identity of the third party, and (4) the impact of the
contract for noninstructional support services on indi-
vidual employees or the bargaining unit. However,
collective bargaining is allowed regarding whether the
bargaining unit will be afforded an opportunity to bid
on an equal basis. If the bargaining unit is not afforded
an opportunity to bid on an equal basis, then the four
subjects are no longer prohibited from collective bar-
gaining. If the bargaining unit is afforded an opportu-
nity to bid on an equal basis, then the four subjects
remain prohibited from collective bargaining.
III. BURDEN OF PROOF
Next, the charging parties argue that the MERC erro-
neously shifted the burden of proof to the charging parties
to prove that they were not provided with an opportunity
to bid on an equal basis as the other bidders. We disagree.
“The applicable burden of proof presents a question of law
that is reviewed de novo on appeal.” FACE Trading, Inc v
Dep’t of Consumer & Indus Servs, 270 Mich App 653,
661; 717 NW2d 377 (2006).
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“The charging party, and not MERC, has the burden
of establishing the unfair labor practice.” Mich Employ-
ment Relations Comm v Reeths-Puffer Sch Dist, 391
Mich 253, 267 n 20; 215 NW2d 672 (1974), superseded
by statute on other grounds as stated in Employment
Relations Comm v Cafana Cleaners, Inc, 73 Mich App
752, 756; 252 NW2d 536 (1977). “As a general rule, the
burden of proof rests upon one who has the affirmative
of an issue necessary to his cause of action or defense.”
Rasch v City of East Jordan, 141 Mich App 336, 340;
367 NW2d 856 (1985). In this case, the charging parties’
charges were based on the fact that they were denied an
opportunity to bid on an equal basis. The hearing officer
issued an order to show cause why the charges should
not be dismissed for failure to establish that the charg-
ing parties were not provided with an opportunity to bid
on an equal basis, when there were no factual allega-
tions indicating that the charging parties even bid on
the respective contracts. Because the charging parties
bear the burden of establishing an unfair labor practice,
it is not enough for the charging parties to merely allege
that they were not afforded an opportunity to bid on an
equal basis—they must provide factual allegations nec-
essary to establish their claim. Therefore, the MERC
did not err by requiring the charging parties to estab-
lish that they were denied an equal bidding opportunity.
IV. THE MERC’S FACTUAL FINDINGS
Next, the charging parties argue that the MERC’s
factual findings were contrary to the plain language of
the statute and were not supported by competent,
material, and substantial evidence. We disagree. The
“MERC’s factual findings are conclusive if supported by
competent, material, and substantial evidence on the
whole record.” Macomb Co, 494 Mich at 77 (quotation
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marks and citation omitted). “This evidentiary stan-
dard is equal to the amount of evidence that a reason-
able mind would accept as sufficient to support a
conclusion. While it consists of more than a scintilla of
evidence, it may be substantially less than a preponder-
ance.” City of Lansing v Carl Schlegel, Inc, 257 Mich
App 627, 630; 669 NW2d 315 (2003) (quotation marks
and citations omitted). Further, “[r]eview of factual
findings of the commission must be undertaken with
sensitivity, and due deference must be accorded to
administrative expertise. Reviewing courts should not
invade the exclusive fact-finding province of adminis-
trative agencies by displacing an agency’s choice be-
tween two reasonably differing views of the evidence.”
Amalgamated Transit Union, 437 Mich at 450.
First, the charging parties argue that the MERC’s
finding that the bargaining units have to transform
themselves into third-party contractors to bid on the
contract eliminates the public school employers’ statu-
tory duty
3
to provide the bargaining units with an
opportunity to bid on an equal basis. AFSCME also
argues that the MERC erred when it determined that
the bargaining unit must be the “same as” the other
bidders to be on an “equal basis” by transforming itself
into a corporation or other third-party entity. AFSCME
argues that “equal” means “evenly proportioned or
3
It should be noted that the statute does not mandate the public school
employer to provide the bargaining unit with an opportunity to bid on an
equal basis. It is essentially the public school employer’s choice whether
to provide the bargaining unit with an opportunity to bid on an equal
basis. If the public school employer chooses not to, then it is forced to
bargain with the bargaining unit over the decision, procedures, and
impact of the contract, as well as the identity of the third party.
Therefore, although the public school employer is not required to provide
the bargaining unit with an opportunity to bargain on an equal basis, it
may be in its best interests to do so.
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balanced” and requires an “equal contest.”
4
Because
the RFP only applied to third-party contractors, the
charging parties argue that they were not provided with
an opportunity to bid on an equal basis.
However, the MERC did not state that the charging
parties had to transform themselves into third-party
contractors. It merely stated that they must “act in the
manner of” third-party contractors to bid on the con-
tract. The statute provides that if the public school
employer wishes for the bargaining subjects listed in
MCL 423.215(3)(f) to remain prohibited, it must pro-
vide the bargaining unit with “an opportunity to bid on
the contract for the noninstructional support services
on an equal basis as other bidders.” As the MERC
correctly stated, the statute does not require the public
school employer to provide an RFP “that is designed for
response by a bargaining unit or a labor organization.”
The plain language of MCL 423.215(3)(f) only requires
the public school employer to provide the bargaining
unit with “an opportunity to bid on an equal basis as
other bidders.” As this Court has stated, the charging
parties are not “entitled to input into the terms of any
request for proposal before the bidding process, or to
have terms drafted in a manner that would permit the
bargaining unit an opportunity to submit a bid on terms
that differed from those of other potential bidders,” as
4
This argument has no merit because “same as” and “evenly propor-
tioned or balanced” are both used to define “equal.” Random House
Webster’s College Dictionary (2001) defines “equal” as:
1. as great as; the same as (often fol. by to or with). 2. like or
alike in quantity, degree, value, etc. 3. of the same rank, ability,
merit, etc.: two students of equal brilliance. 4. evenly proportioned
or balanced: an equal contest. 5. uniform in operation or effect:
equal laws. 6. adequate or sufficient in quantity or degree. 7.
having adequate ability or means; suited: I felt equal to the task.8.
level, as a plain. 9. tranquil or undisturbed. 10. impartial or
equitable.
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this would put the charging parties “in a superior
position to other bidders.” Woodhaven, 293 Mich App at
156. The MERC notes that the RFPs are designed for
third-party contractors wishing to submit bids. Thus, it
is inherent that the bargaining unit will often have to
“act in the manner of” a third-party contractor when
bidding pursuant to an RFP seeking bids for nonin-
structional support services.
Finally, both charging parties argue that the MERC
erred by finding that they could not complain that they
were not provided with an opportunity to bid on an
equal basis because they did not submit proper bids.
Given the due deference this Court should afford to
administrative-agency decisions, there was competent,
material, and substantial evidence to support the
MERC’s finding.
With regard to AFSCME, it did not submit a bid
because it argued that the RFP did not apply to it, and
therefore, it could not submit a bid pursuant to it. How-
ever, included in the RFP was a provision that provided
for exceptions to the RFP’s requirements that the bidder
was unable to meet. Therefore, as the MERC noted,
AFSCME could have submitted a bid and requested an
exemption for the requirements it felt that it could not
fulfill. If Mt. Pleasant had denied AFSCME’s bid or
disqualified it from bidding because it could not fulfill
certain requirements under the RFP, then AFSCME
would have a claim under section 15(3)(f) because it would
not have been provided with an opportunity to bid on an
equal basis as the other bidders. However, in the absence
of a bid, there is no way to determine whether the
bargaining unit was denied an opportunity to bid on an
equal basis. Thus, the MERC did not err when it deter-
mined that AFSCME could not complain that it was not
provided with an equal bidding opportunity.
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With regard to LESPA, the MERC determined that it
only submitted a “proposal” for a collective bargaining
agreement that, in effect, asked to bargain over the
decision to subcontract noninstructional support ser-
vices. As discussed, the MERC’s findings only need to be
supported by “less than a preponderance” of the evi-
dence. Here, LESPA’s “bid” was labeled a “proposal”
for transportation services that sought to maintain the
existing collective bargaining agreement between the
parties. The proposal sought to reach a compromise to
preserve bargaining unit positions within the school
district. This was sufficient to support the MERC’s
determination that LESPA’s “bid” was a proposal for a
collective bargaining agreement that sought to bargain
over Mt. Pleasant’s decision to subcontract. Because
this is a prohibited subject of bargaining under section
15(3)(f), the MERC did not err when it determined that
LESPA did not submit a proper bid.
V. MOTION TO REOPEN THE RECORD
Finally, AFSCME argues that the MERC erroneously
denied its motion to reopen the record. We disagree.
The MERC’s decision whether to reopen the record is
discretionary, and is therefore, reviewed for an abuse of
discretion. St Clair Co Ed Ass’n v St Clair Co Interme-
diate Sch Dist, 245 Mich App 498, 519-520; 630 NW2d
909 (2001).
AFSCME filed a motion to reopen the record to
introduce the school district’s vendor-relations policy
that precluded the school district from entering into a
contract with a vendor of goods or services in which any
employee of the school district has a direct or indirect
pecuniary or beneficial interest.
“To merit reopening the record, the union had to
demonstrate that it could not with reasonable dili-
618 302 M
ICH
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600 [Oct
gence have discovered and produced the evidence at
the original hearing and that the evidence sought to
be introduced, and not merely its materiality, is newly
discovered.” Id. at 519 (quotation marks and citation
omitted). In this case, AFSCME gave this issue cur-
sory treatment and failed to cite any applicable law,
let alone demonstrate that it could not have discov-
ered the evidence with reasonable diligence and pro-
duced it at the original hearing. Therefore, the MERC
did not abuse its discretion by denying AFSCME’s
motion.
VI. SUMMARY AND CONCLUSION
The plain language of MCL 423.215(3)(f) prohibits
collective bargaining over four subjects: (1) the decision
to contract for noninstructional support services, (2)
the procedures for obtaining that contract, (3) the
identity of the third party, and (4) the impact of the
contract for noninstructional support services on indi-
vidual employees or the bargaining unit. However,
collective bargaining is allowed regarding whether the
bargaining unit will be afforded an opportunity to bid
on an equal basis. If the bargaining unit is not afforded
an opportunity to bid on an equal basis, then the four
subjects are no longer prohibited from collective bar-
gaining. If the bargaining unit is afforded an opportu-
nity to bid on an equal basis, then the four subjects
remain prohibited from collective bargaining.
In addition, when the basis of the charging party’s
unfair labor practice charge is that it was denied an
equal opportunity to bid, the burden of proof is on the
charging party to prove that it was not afforded an
opportunity to bid on an equal basis as the other
bidders.
2013] M
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LEASANT
S
CH V
M
ICH
AFSCME 619
We hold that the MERC did not err when it dismissed
LESPA and AFSCME’s unfair labor practice charges
and when it denied AFSCME’s motion to reopen the
record.
Affirmed.
S
ERVITTO
,P.J., and W
HITBECK
and O
WENS
, JJ., con-
curred.
620 302 M
ICH
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600 [Oct
NORTHLINE EXCAVATING, INC v LIVINGSTON COUNTY
Docket Nos. 304964, 305689. Submitted October 3, 2013, at Lansing.
Decided October 15, 2013, at 9:05 a.m.
The Livingston County Board of Public Works brought an action
in the Livingston Circuit Court against Hanover Insurance
Company, Northline Excavating, Inc., and others, seeking to
recover under a performance bond issued by Hanover on behalf
of Northline for Northline’s alleged breach of a contract with
the board and Livingston County to construct a sanitary sewer
pipe and pump station. Northline and Hanover also brought a
separate action in the Livingston Circuit Court against Living-
ston County, the Livingston County Board of Public Works
(collectively “the county”), and others, seeking a determination
regarding their liability under the performance bond. The court
in both actions, Michael P. Hatty, J., held that the liability of
Northline and Hanover for combined actual damages, liqui-
dated damages, and attorney fees could not exceed the penal
sum of the performance bond, $251,035. The county appealed by
leave granted the orders of the court in both actions. The Court
of Appeals consolidated the appeals.
The Court of Appeals held:
Michigan’s common law has long recognized that a surety’s
liability is limited to the face amount of the performance bond. The
language of the performance bond permitting enforcement of any
remedy available to the owner merely confers the right to pursue
any cause of action that may prevent or redress a wrong resulting
from a breach of the performance bond, but does not implicate
what damages may be obtained. The performance bond contains
no language specifically expanding the surety’s liability beyond the
amount of the performance bond.
Affirmed.
B
ONDS —
P
ERFORMANCE
B
ONDS —
S
URETY
’
S
L
IABILITY —
C
OMMON
L
AW
.
The common law of Michigan recognizes that a surety’s liability with
regard to a performance bond is limited to the face amount of the
bond.
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Cummings, McClorey, Davis & Acho, PLC (by Lind-
sey A. Kaczmarek and T. Joseph Seward), for Livingston
County and the Livingston County Board of Public
Works.
Deneweth, Dugan & Parfitt, PC (by Ronald A. De-
neweth, Chris Parfitt, and Deborah S. Walter), for
Hanover Insurance Company.
Amici Curiae:
The Hubbard Law Firm, PC (by Michael G. Wood-
worth, Andria M. Ditschman, and N. Banu Colak), for
the Michigan Association of County Drain Commission-
ers, the Michigan Townships Association, and the
Michigan Association of Counties.
Kerr, Russell and Weber, PLC (by Joanne Geha Swan-
son), for the Surety & Fidelity Association of America.
Before: H
OEKSTRA
,P.J., and R
ONAYNE
K
RAUSE
and
B
OONSTRA
,JJ.
H
OEKSTRA
,P.J. In these cases involving the interpre-
tation of a contract Livingston County and the Living-
ston County Board of Public Works (collectively “the
County”) appeal by leave granted the trial court’s
orders limiting Hanover Insurance Company’s (Ha-
nover) actual and liquidated damages. Because we con-
clude that the plain language of the suretyship contract
limited the liability of Hanover to the amount of the
performance bond, we affirm.
These consolidated appeals arise from the failure of
Northline Excavating, Inc (Northline), to complete a
sanitary sewer extension project in Livingston County
and the County’s attempt to collect damages for non-
performance of a contract under the terms of a perfor-
622 302 M
ICH
A
PP
621 [Oct
mance bond issued by Hanover on behalf of Northline.
In 2007, the County entered into a contract with
Northline to construct a sanitary sewer pipe and pump
station along Grand River Avenue. The contract price
was Northline’s bid of $251,035. The contract also
included a liquidated damages provision of $1,000 a day
for each day the contract remained substantially un-
completed beyond the date for completion provided in
the contract. In order to comply with MCL 129.201,
which requires a contractor to provide a performance
bond for public-sector contracts exceeding $50,000,
Northline and Hanover executed a performance bond.
The amount of the performance bond was $251,035,
and the bond identified Northline as the “Contractor”
(i.e., the principal contractor), Hanover as the “Surety,”
the County as the “Owner” (i.e., the obligee), and the
contract as the “Construction Contract.”
The performance bond contains the following provi-
sions regarding Hanover’s obligations as surety under
the bond:
3. If there is no Owner Default, the Surety’s obligation
under this Bond shall arise after:
3.1 The Owner has notified the Contractor and the
Surety at its address described in Paragraph 10 below that
the Owner is considering declaring a Contractor Default
and has requested and attempted to arrange a conference
with the Contractor and the Surety to be held not later
than fifteen days after receipt of such notice to discuss
methods of performing the Construction Contract. If the
Owner, the Contractor and the Surety agree, the Contrac-
tor shall be allowed a reasonable time to perform the
Construction Contract, but such an agreement shall not
waive the Owner’s right, if any, subsequently to declare a
Contractor Default; and
3.2 The Owner has declared a Contractor Default and
formally terminated the Contractor’s right to complete the
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contract. Such Contractor Default shall not be declared
earlier than twenty days after the Contractor and the
Surety have received notice as provided in Subparagraph
3.1; and
3.3 The Owner has agreed to pay the Balance of the
Contract Price to the Surety in accordance with the terms
of the Construction Contract or to a contractor selected to
perform the Construction Contract in accordance with the
terms of the contract with the Owner.
4. When the Owner has satisfied the conditions of
Paragraph 3, the Surety shall promptly and at the Surety’s
expense take one of the following actions:
4.1 Arrange for the Contractor, with the consent of the
Owner, to perform and complete the Construction Con-
tract; or
4.2 Undertake to perform and complete the Construc-
tion Contract itself, through its agents or through indepen-
dent contractors; or
4.3 Obtain bids or negotiated proposals from qualified
contractors acceptable to the Owner for a contract for
performance and completion of the Construction Contract,
arrange for a contract to be prepared for execution by the
Owner and the contractor selected with the Owner’s con-
currence, to be secured with performance and payment
bonds executed by a qualified surety equivalent to the
bonds issued on the Construction Contract, and pay to the
Owner the amount of damages as described in Paragraph 6
in excess of the Balance of the Contract Price incurred by
the Owner resulting from the Contractor’s default; or
4.4 Waive its right to perform and complete, arrange for
completion, or obtain a new contractor and with reasonable
promptness under the circumstances:
.1 After investigation, determine the amount for
which it may be liable to the Owner and, as soon as
practicable after the amount is determined, tender
payment therefor to the Owner; or
.2 Deny liability in whole or in part and notify the
Owner citing reasons therefor.
624 302 M
ICH
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621 [Oct
5. If the Surety does not proceed as provided in Para-
graph 4 with reasonable promptness, the Surety shall be
deemed to be in default on this Bond fifteen days after
receipt of an additional written notice from the Owner to
the Surety demanding that the Surety perform its obliga-
tions under this Bond, and the Owner shall be entitled to
enforce any remedy available to the Owner. If the Surety
proceeds as provided in Subparagraph 4.4, and the Owner
refuses the payment tendered or the Surety has denied
liability, in whole or in part, without further notice the
Owner shall be entitled to enforce any remedy available to
the Owner.
6. After the Owner has terminated the Contractor’s
right to complete the Construction Contract, and if the
Surety elects to act under Subparagraph 4.1, 4.2, or 4.3
above, then the responsibilities of the Surety to the Owner
shall not be greater than those of the Contractor under the
Construction Contract, and the responsibilities of the
Owner to the Surety shall not be greater than those of the
Owner under the Construction Contract. To the limit of the
amount of this bond, but subject to commitment by the
Owner of the Balance of the Contract Price to mitigation of
costs and damages on the Construction Contract, the
Surety is obligated without duplication for:
6.1 The responsibilities of the Contractor for correction
of defective work and completion of the Construction
Contract;
6.2 Additional legal, design professional and delay costs
resulting from the Contractor’s Default, and resulting from
the actions or failure to act of the Surety under Paragraph
4; and
6.3 Liquidated damages, or if no liquidated damages are
specified in the Construction Contract, actual damages
caused by delayed performance or non-performance of the
Contractor.
[1]
1
We note that the performance bond at issue in these cases is a
standard contract of the American Institute of Architects, form A312.
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The parties agree that shortly after Northline began
excavation and sewer installation it encountered diffi-
culties constructing the sewer extension pursuant to
the terms and specifications of the construction con-
tract. There is a factual dispute regarding whether the
problematic conditions were disclosed by the County in
the plans and specifications of the project. It is not
disputed that the parties held a conference as required
by the performance bond to discuss methods by which
Northline could perform the construction contract. Ac-
cording to the County, the parties failed to reach any
agreement at the conference. Northline agreed to sub-
mit a “plan of action” detailing how it would complete
the project. However, the County ultimately rejected
Northline’s initial and revised action plans, and notified
Northline of its rejection by way of letter. The County
similarly notified Northline in a letter that it was
declaring a contractor default and terminating North-
line’s contract. Thereafter, the County notified Hanover
of its declaration of a contractor default with regard to
Northline for noncompliance with the provisions of the
construction contract. Hanover acknowledged receipt of
the County’s letter and notified the County that it was
investigating its claim. Eventually, Hanover denied
liability and notified the County of its position by way of
letter.
Thereafter, the County commenced suit against
Northline and Hanover. The County sought to recover
against Northline under a breach of contract theory. It
sought to recover under the performance bond against
Hanover. Additionally, Northline and Hanover, the lat-
ter pursuant to its right of subrogation, commenced
suit against the County as well as other parties not
relevant to the contract issue on appeal. At a pretrial
conference, the trial court adjourned the trial indefi-
nitely to allow the parties to submit briefs addressing
626 302 M
ICH
A
PP
621 [Oct
whether Hanover’s liability for damages could exceed
the penal sum of the performance bond. The parties
submitted briefs on the issue, and Hanover filed a
motion in limine to limit its potential liability to the
penal sum of the performance bond. Following a hear-
ing, the trial court ruled from the bench that Hanover’s
liability under the terms of the performance bond was
limited to the penal sum of the bond.
Immediately after the trial court finished its bench
ruling, counsel for the County inquired whether the
trial court was limiting Hanover’s liability for combined
actual damages, liquidated damages, and reasonable
attorney fees to the penal sum of the bond. The trial
court responded by directing the parties to brief the
question whether Hanover could be held liable for
liquidated damages in an amount in excess of the penal
sum of the bond. Following the parties’ submission of
briefs, the proceedings were reconvened to consider the
County’s motion in limine to allow liquidated damages
in an amount in excess of the penal sum of the bond.
The trial court denied the motion from the bench,
finding that the language of the contract limited the
recovery of all damages to the amount of the perfor-
mance bond. Thereafter, these appeals ensued.
The issue on appeal is whether the plain language of
the performance bond expressed an intent contrary to
the generally understood principle that a surety is liable
only for the amount of the bond.
We review de novo questions involving the proper
interpretation of a contract. Rory v Continental Ins Co,
473 Mich 457, 464; 703 NW2d 23 (2005). “In ascertain-
ing 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.” Id.
We must “give effect to every word, phrase, and clause
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in a contract and avoid an interpretation that would
render any part of the contract surplusage or nugatory.”
Klapp v United Ins Group Agency, Inc, 468 Mich 459,
468; 663 NW2d 447 (2003). We cannot read words into
the plain language of a contract. Terrien v Zwit, 467
Mich 56, 75; 648 NW2d 602 (2002).
The contract at issue is required by statute. MCL
129.201 provides that a performance bond must be
provided by a principal contractor before construction
can begin on any public building project exceeding
$50,000 in value. MCL 129.202, which explains the
required performance bond, provides:
The performance bond shall be in an amount fixed by
the governmental unit but not less than 25% of the
contract amount, conditioned upon the faithful perfor-
mance of the contract in accordance with the plans, speci-
fications and terms thereof. The bond shall be solely for the
protection of the governmental unit awarding the contract.
“A performance bond assures completion of a project
in the event of default by the general contractor.”
Kammer Asphalt Paving Co, Inc v East China Twp Sch,
443 Mich 176, 179 n 4; 504 NW2d 635 (1993). The
performance bond contract is a suretyship contract,
which involves a principal, an obligee, and a surety. Will
H Hall & Son, Inc v Ace Masonry Constr, Inc, 260 Mich
App 222, 228; 677 NW2d 51 (2003). “A surety is one who
undertakes to pay money or take any other action if the
principal fails therein.” Id. at 228-229. “The liability of
a surety is limited by the scope of the liability of its
principal and the precise terms of the surety agree-
ment.” Id. at 229 (citation and quotation marks omit-
ted). See also Bandit Indus, Inc v Hobbs Int’l, Inc (After
Remand), 463 Mich 504, 511-512; 620 NW2d 531 (2001)
(“To the extent and in the manner and under the
circumstances pointed out in his obligation, the surety
628 302 M
ICH
A
PP
621 [Oct
is bound, and no further. The liability of a surety is not
to be extended by implication beyond the terms of his
contract.”) (citation and quotation marks omitted).
Further, Michigan law has long recognized that a
surety is only liable for the amount of the performance
bond. See, e.g., Graff v Epstein, 238 Mich 227, 232; 213
NW 190 (1927) (“Of course, liability of the sureties cannot
exceed the penalty of the bond.”); Fidelity & Deposit Co of
Maryland v Cody, 278 Mich 435, 444; 270 NW 739 (1936)
(holding that “the penalty of the respective bonds is the
measure of the total liability of the surety company”);
Shambleau v Hoyt, 265 Mich 560, 573; 251 NW 778 (1933)
(holding that “defendants and their surety bound them-
selves to the extent of the penal sum of the bond.”);
Vreeland v Loeckner, 99 Mich 93, 95; 57 NW 1093 (1894)
(“The judgment is valid in its entirety as to the principal
defendant, but void as to the surety in the excess over the
penal sum of the bond.”); Spencer v Perry, 18 Mich 394,
399 (1869) (holding that it is generally understood that
bonds “fix the limit beyond which the liability of the
defendant should not extend,” and noting that if the
parties intended to provide for indefinite liability, they
could have entered into a different type of agreement).
Thus, in light of the fact that performance bonds
have traditionally been interpreted to limit a surety’s
liability to the amount of a performance bond, we will
not presume that Hanover’s liability is greater than the
amount of the bond unless the contract language
plainly expresses the parties’ intent to expand Ha-
nover’s liability contrary to the general interpretation
and understanding of performance bonds.
The County maintains that the language of the
performance bond does plainly express an intent to
expose Hanover to liability exceeding the amount of the
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bond. Specifically, the County argues that ¶ 6 does not
control damages in this case because Hanover pro-
ceeded under subparagraph 4.4, and ¶ 6 only applies if a
surety elects to arrange for completion of the construc-
tion project as provided under subparagraphs 4.1, 4.2,
or 4.3.
2
It argues that because ¶ 6 does not apply when
a surety proceeds under subparagraph 4.4, the language
of ¶ 5 that permits an owner to enforce “any remedy
available” is controlling. The County argues that this
language in ¶ 5 removes the limitation on the surety’s
damages expressed on the face of the bond and in ¶ 6
and allows it to pursue damages beyond the amount of
the performance bond.
While we agree with the County that ¶ 6 does not
apply when the surety elects to proceed under subpara-
graph 4.4,
3
we disagree with the County’s argument
that the language in ¶ 5 permitting the owner to enforce
“any remedy available” subjects the surety to liability
beyond the amount of the performance bond. We find
the County’s argument regarding the meaning of ¶ 5
unavailing because it misinterprets the term “remedy”
to encompass both causes of action and damages. “Rem-
edy” is defined as “[t]he means of enforcing a right or
preventing or redressing a wrong; legal or equitable
relief.” Black’s Law Dictionary (9th ed). In contrast,
“damages” is defined as “[m]oney claimed by, or or-
dered to be paid to, a person as compensation for loss or
injury.” Id. Applying these definitions to the contract in
2
The County does not dispute that when ¶ 6 applies, the plain language
of the contract limits the surety’s liability to the amount of the perfor-
mance bond.
3
Paragraph 6 specifically limits its provisions by stating “if the Surety
elects to act under Subparagraph 4.1, 4.2, or 4.3....”Paragraph 6 then
lists the damages that the surety is liable for “[t]o the limit of the amount
of this bond....”Paragraph 6 is silent in regard to the surety’s election
to proceed under subparagraph 4.4.
630 302 M
ICH
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621 [Oct
this case, the language permitting enforcement of “any
remedy available to the Owner,” merely confers the
right to pursue any cause of action that may prevent or
redress a wrong resulting from a breach of the perfor-
mance bond, but it does not implicate what damages
may be obtained.
4
Thus, neither ¶ 5 nor ¶ 6 addresses the surety’s
liability when it proceeds under subparagraph 4.4.
However, the contract is not completely silent in regard
to the surety’s liability when it elects to proceed under
subparagraph 4.4 because the face of the bond clearly
states that the bond amount is $251,035, and our
common law has long recognized that a surety’s liability
is limited to the face amount of the performance bond.
See, e.g., Graff, 238 Mich at 232; Shambleau, 265 Mich
at 573; Vreeland, 99 Mich at 95. Moreover, the perfor-
mance bond contains no language specifically expand-
ing the surety’s liability beyond the amount of the
performance bond. Accordingly, we conclude that the
trial court did not err by holding that Hanover’s liabil-
ity is limited to the amount of the performance bond.
Affirmed.
R
ONAYNE
K
RAUSE
, J., and B
OONSTRA
, J., concurred with
H
OEKSTRA
,P.J.
4
Consequently, we find the County’s reliance on the maxim expressio
unius est exclusio alterius (the expression of one thing is the exclusion of
another) unavailing because the absence of language limiting the scope of
the remedies an owner may pursue has no bearing or relation to the
inclusion of language limiting the scope of damages.
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In re BOYNTON
Docket No. 310889. Submitted October 2, 2013, at Detroit. Decided
October 15, 2013, at 9:10 a.m.
An arrest warrant was issued in Georgia seeking the arrest of
Malachi E. Boynton, a minor, on charges of aggravated child
molestation and aggravated sodomy arising from Boynton’s al-
leged sexual assault of a child while he was in Georgia. The
Governor of Georgia then issued a requisition demand to Michi-
gan’s Governor seeking Boynton’s extradition to Georgia to face
the charges. The Genesee Circuit Court, Family Division, had
already asserted jurisdiction over Boynton as a result of an
unrelated episode of domestic violence and had placed him on
probation. Boynton’s probation officer sought to effectuate the
extradition request. Boynton filed a petition for a writ of habeas
corpus challenging the extradition request. The court, F. Kay
Behm, J., denied the petition. The Court of Appeals denied
Boynton’s application for leave to appeal. In re Boynton, unpub-
lished order of the Court of Appeals, entered August 6, 2012
(Docket No. 310889). The Supreme Court, in lieu of granting leave
to appeal, remanded the matter to the Court of Appeals for
consideration as on leave granted. In re Boynton, 494 Mich 852
(2013). The Supreme Court also granted the Michigan Attorney
General’s motion to intervene in the case.
The Court of Appeals held:
1. The Uniform Criminal Extradition Act (UCEA) under which
the extradition request was made has been adopted in both
Michigan, MCL 780.1 et seq., and Georgia, Ga Code Ann 17-13-20
et seq. The UCEA applies to a “person” or “persons” without
distinction premised on age. The applicability of the UCEA is not
confined to adults. The UCEA applies to juveniles charged with
delinquent behavior and permits the extradition of juveniles.
2. A juvenile adjudication clearly constitutes criminal activity
because it amounts to a violation of a criminal statute, even
though that violation is not resolved in a criminal proceeding.
3. The reason for a person’s absence from the demanding
state is irrelevant for purposes of extradition. The pertinent
inquiry is whether the person whose surrender is demanded is
632 302 M
ICH
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632 [Oct
in fact a fugitive from justice, not whether the person con-
sciously fled from justice in order to avoid prosecution for the
crime with which the person is charged by the demanding state.
“Fugitivity” is shown when the person is ascertained to be the
person wanted in the demanding state and it is shown that the
person was present in the demanding state at the time when the
alleged offense occurred.
4. A governor’s grant of extradition is prima facie evidence
that the constitutional and statutorily requirements have been
met. Once a governor has granted extradition, a court considering
release on a writ of habeas corpus can do no more than decide
whether the extradition documents on their face are in order,
whether the petitioner has been charged with a crime in the
demanding state, whether the petitioner is the person named in
the request for extradition, and whether the petitioner is a
fugitive. Information regarding an alleged offender’s permanent
residence is not required to be included in the documents that
accompany a demand for extradition. Any alleged inaccuracies in
the documents submitted with the demand for Boynton’s extradi-
tion with regard to identifying Boynton’s permanent residence do
not render them invalid on their face.
5. Boynton’s contention that his extradition to Georgia would
constitute cruel and unusual punishment must be addressed by
the courts of Georgia, not the courts of Michigan.
6. Boynton, a detainee awaiting extradition, has not incurred a
punishment under the Eighth Amendment. Boynton has not
incurred a punishment under Const 1963, art 1, § 16. Boynton’s
claim that the UCEA’s application to him and his circumstances
would constitute cruel and unusual punishment lacks merit.
Affirmed.
1. C
RIMINAL
L
AW —
E
XTRADITION —
A
PPEAL
.
Challenges to extradition proceedings must be made in the asylum
state; the scope of review in passing upon a writ of habeas corpus
by the courts of the asylum state is generally limited to questions
of identity, fugitivity, and regularity of the extradition procedure.
2. C
RIMINAL
L
AW —
E
XTRADITION —
U
NIFORM
C
RIMINAL
E
XTRADITION
A
CT —
J
UVENILES
.
The Uniform Criminal Extradition Act applies to a “person” or to
“persons” without distinction premised on age; the applicability of
the act is not confined to adults; the act permits the extradition of
juveniles (MCL 780.1 et seq.).
2013] In re B
OYNTON
633
3. J
UVENILE
L
AW —
J
UVENILE
A
DJUDICATIONS —
C
RIMINAL
A
CTIVITY
.
A juvenile adjudication constitutes criminal activity because it
amounts to a violation of a criminal statute, even though the
violation is not resolved in a criminal proceeding.
4. C
RIMINAL
L
AW —
E
XTRADITION —
F
UGITIVITY
.
The voluntary nature of a person’s removal from the state demand-
ing the person’s extradition is irrelevant to the determination
whether the person is a fugitive from justice; “fugitivity” is shown
when the person is ascertained to be the person wanted in the
demanding state and it is shown that the person was present in the
demanding state at the time the alleged offense occurred; the
reason for the absence of the person from the demanding state is
irrelevant for purposes of extradition.
5. C
RIMINAL
L
AW —
E
XTRADITION —
U
NIFORM
C
RIMINAL
E
XTRADITION
A
CT
.
Procedural compliance is sufficient to overcome defects or inaccura-
cies contained within the documentation initiating extradition
proceedings under the Uniform Criminal Extradition Act; Section
3 of the act sets forth the required documents, and their necessary
content, that must accompany an extradition demand in order for
it to be recognized by the Governor of an asylum state (MCL
780.3).
6. C
RIMINAL
L
AW —
E
XTRADITION —
U
NIFORM
C
RIMINAL
E
XTRADITION
A
CT
.
A governor’s grant of extradition under the Uniform Criminal
Extradition Act is prima facie evidence that the constitutional and
statutory requirements for extradition have been met; once a
governor has granted extradition, a court considering a petition-
er’s release on a writ of habeas corpus can do no more than decide
whether the extradition documents on their face are in order,
whether the petitioner has been charged with a crime in the
demanding state, whether the petitioner is the person named in
the request for extradition, and whether the petitioner is a fugitive
(MCL 780.1 et seq.).
Child Advocacy Team (by Terina M. Carte) for Mala-
chi Boynton.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, B. Eric Restuccia, Deputy Solicitor
General, and Anica Letica, Assistant Attorney General,
for the Attorney General.
634 302 M
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Before: B
ECKERING
,P.J., and O’C
ONNELL
and S
HAPIRO
,
JJ.
P
ER
C
URIAM
. Petitioner, Malachi Eric Boynton, a juve-
nile, appeals by leave granted the trial court’s May 30,
2012, order denying his petition for a writ of habeas
corpus and permitting his extradition to the state of
Georgia in accordance with a governor’s warrant. An issue
of first impression in this case is whether the Uniform
Criminal Extradition Act (UCEA), as adopted in Michigan
(MCL 780.1 et seq.), applies to juveniles charged with
delinquent behavior in another state. Because we con-
clude that it does and that petitioner’s other claims of
error lack merit, we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Petitioner is a Michigan resident. In the summer of
2010, he spent time in Georgia with this godfather.
Petitioner was 12 years old at the time. Toward the end
of his stay, Georgia authorities began investigating
allegations that petitioner sexually assaulted a four-
year-old child. Petitioner returned home to Michigan.
An arrest warrant was issued in Fulton County, Geor-
gia. Georgia’s Governor then issued a requisition de-
mand to Michigan’s Governor seeking petitioner’s ex-
tradition to Georgia to face accusations of aggravated
child molestation, Ga Code Ann 16-6-4,
1
associated with
his alleged anal penetration of the four-year-old child.
Because of petitioner’s status as a juvenile, the state of
Georgia sought to pursue charges against him in the
juvenile court as a delinquent felon.
In November 2010, petitioner was detained in Michi-
gan for delinquent behavior associated with an episode
1
An amended petition in the Fulton County juvenile court also
included the offense of aggravated sodomy, Ga Code Ann 16-6-2.
2013] In re B
OYNTON
635
of domestic violence. Petitioner admitted that he had
pushed his mother, and the Genesee Circuit Court,
Family Division, asserted jurisdiction over him on Feb-
ruary 1, 2011. The court placed petitioner on formal
probation with the option of rescinding his plea and
being placed on consent calendar probation if he suc-
cessfully completed the terms of his probation.
In May 2011, after learning of the charges pending in
Georgia, petitioner’s probation officer sought to effec-
tuate the extradition request. Efforts were made to
follow through on this request, but it was not until the
following spring, after petitioner violated the terms of
his probation by not attending school regularly, that he
was served with the extradition paperwork and that the
court undertook to execute the extradition request.
2
Counsel was appointed to represent petitioner in the
extradition proceedings. Petitioner’s counsel filed a
petition for a writ of habeas corpus challenging the
extradition request. The trial court denied the petition.
This Court denied petitioner’s application for leave to
appeal.
3
The Michigan Supreme Court, in lieu of grant-
ing leave to appeal, remanded the matter to this Court
for consideration as on leave granted.
4
The Supreme
Court also granted the Michigan Attorney General’s
motion to intervene in the case.
II. ANALYSIS
Petitioner raises four arguments to challenge the extra-
dition proceedings: (1) the UCEA does not apply to juve-
2
A new petition was filed with the circuit court in June 2012, arising
out of another alleged incident of petitioner engaging in domestic
violence.
3
In re Boynton, unpublished order of the Court of Appeals, entered
August 6, 2012 (Docket No. 310889).
4
In re Boynton, 494 Mich 852 (2013).
636 302 M
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632 [Oct
niles charged with delinquent behavior; (2) even if the
UCEA does apply to him, he is not a “fugitive from
justice” under the act; (3) the documents used to obtain
the governor’s warrant contain inaccurate and untruthful
pertinent information and, thus, are not in order on their
face and must not be honored; and (4) enforcing the
governor’s warrant and extraditing him to Georgia would
be cruel and unusual punishment because he is a minor.
5
“Challenges to extradition proceedings must be made
in the asylum state.” People v Duck, 147 Mich App 534,
540; 383 NW2d 245 (1985). “The scope of review in
passing upon a writ of habeas corpus by the courts of
the custody state is generally limited to questions of
identity, fugitivity, and regularity of the extradition
procedure.” Williams v North Carolina, 33 Mich App
119, 123 n 4; 189 NW2d 858 (1971), citing Drew v
Thaw, 235 US 432; 35 S Ct 137; 59 L Ed 302 (1914).
However, the interpretation of a statute presents a
question of law that this Court reviews de novo. People
v Kimble, 470 Mich 305, 308-309; 684 NW2d 669 (2004).
Furthermore, to the extent petitioner raises questions
of constitutional law on appeal, we generally review
such issues de novo. People v Brown, 294 Mich App 377,
389; 811 NW2d 531 (2011).
A. APPLICABILITY OF THE UCEA TO JUVENILES
CHARGED WITH DELINQUENT BEHAVIOR
Petitioner raises an issue of first impression in Michi-
gan, contending that the UCEA does not and, as mani-
5
Petitioner also addresses the Interstate Compact for Juveniles (ICJ),
MCL 3.692, solely to argue that it is inapplicable under the circumstances
presented and does not serve as an alternative ground upon which to
affirm the trial court. Because we conclude that the extradition proceed-
ings are proper under the UCEA, we need not address the applicability of
the ICJ.
2013] In re B
OYNTON
637
fested by its chosen language, was not intended to apply
to juveniles charged with delinquent behavior. We dis-
agree.
At the outset, it is noted that Michigan, in addition to
“[a]lmost all states,” has adopted the UCEA. Anno:
Extradition of Juveniles, 73 ALR3d 700, 706, § 3. In
Michigan, the relevant statutory provisions include the
following:
Subject to the provisions of this act, the provisions of
the constitution of the United States controlling, and
any and all acts of congress enacted in pursuance
thereof, it is the duty of the governor of this state to have
arrested and delivered up to the executive authority of
any other state of the United States any person charged
in that state with treason, felony, or other crime, who has
fled from justice and is found in this state. [MCL 780.2
(emphasis added).]
As noted in MCL 780.28, “The provisions of this act
shall be so interpreted and construed as to effectuate its
general purposes to make uniform the law of those
states which enact it.” The state of Georgia has also
adopted the UCEA. See Ga Code Ann 17-13-20.
Discussions of the UCEA have recognized as a start-
ing point the Extradition Clause of the United States
Constitution, specifically, US Const, art IV, § 2, cl 2,
which states:
A Person charged in any State with Treason, Felony, or
other Crime, who shall flee from Justice, and be found in
another State, shall on Demand of the executive Authority
of the State from which he fled, be delivered up, to be
removed to the State having Jurisdiction of the Crime.
[Emphasis added.]
Congress implemented this constitutional provision in
18 USC 3182, which states:
638 302 M
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632 [Oct
Whenever the executive authority of any State or Ter-
ritory demands any person as a fugitive from justice, of the
executive authority of any State, District, or Territory to
which such person has fled, and produces a copy of an
indictment found or an affidavit made before a magistrate
of any State or Territory, charging the person demanded
with having committed treason, felony, or other crime,
certified as authentic by the governor or chief magistrate of
the State or Territory from whence the person so charged
has fled, the executive authority of the State, District, or
Territory to which such person has fled shall cause him to
be arrested and secured, and notify the executive authority
making such demand, or the agent of such authority
appointed to receive the fugitive, and shall cause the
fugitive to be delivered to such agent when he shall appear.
If no such agent appears within thirty days from the time
of the arrest, the prisoner may be discharged. [Emphasis
added.]
The United States Supreme Court in Michigan v Do-
ran, 439 US 282, 288-289; 99 S Ct 530; 58 L Ed 2d 521
(1978) (citations omitted), explained the relationship of
these various provisions:
Whatever the scope of discretion vested in the governor
of an asylum state, the courts of an asylum state are bound
by Art IV, § 2, by § 3182, and, where adopted, by the
Uniform Criminal Extradition Act. A governor’s grant of
extradition is prima facie evidence that the constitutional
and statutory requirements have been met.
Analysis of the relevant constitutional and statutory
language is consistent with the rules of statutory inter-
pretation. In re Request for Investigative Subpoena, 256
Mich App 39, 45-46; 662 NW2d 69 (2003). “If the
language of a statute is clear, no further analysis is
necessary or allowed to expand what the Legislature
clearly intended to cover.” People v Monaco, 474 Mich
48, 54; 710 NW2d 46 (2006) (quotation marks and
citation omitted).
2013] In re B
OYNTON
639
In this instance, the relevant language indicates the
applicability of the statutes to a “person” or “persons”
without distinction premised on age. “It is a settled rule
of statutory construction that, unless otherwise defined
in a statute, statutory words or phrases are given their
plain and ordinary meanings.” Id. at 55 (quotation
marks and citation omitted), citing MCL 8.3a. The plain
and ordinary meaning of “person” is “a human being; a
man, woman, or child.” Random House Webster’s Col-
lege Dictionary (2005); see also Black’s Law Dictionary
(9th ed) (defining “person” as “[a] human being”). The
act does not define the term “person” and does not
contain other provisions limiting its scope to adults. As
a consequence, in adherence to the rules of statutory
interpretation, we conclude that the Legislature in-
tended to use the broad and encompassing term “per-
son” through its election to not limit the applicability of
the provision by using qualifying language such as
“adult.” Under general principles of statutory interpre-
tation, the applicability of the UCEA is not confined to
adults and the UCEA permits the extradition of juve-
niles.
Although there is limited caselaw regarding the ap-
plicability of the UCEA to juveniles, what exists is
consistent with the above interpretation premised on
the statutory language. As an example, the annotation
at 73 ALR3d 700 provides an overview of caselaw
pertaining to the extradition of juveniles. In general, it
is suggested:
The constitutional provision and the legislation govern-
ing extradition make no special provisions for juveniles,
and the cases, at least by implication if not expressly,
recognize that juveniles may be extradited the same as
adults. Moreover, even though special criminal proceedings
may otherwise be required for juveniles, it has been held
that such special proceedings are not required when extra-
640 302 M
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632 [Oct
diting juveniles....[I]t has been held that the power of a
state to try a juvenile is not affected by the manner of his
return to another state....
It has been said that where a juvenile is contesting his
extradition, the court’s inquiry is limited to a determina-
tion of the individual’s identity, his status as a fugitive from
justice, whether a proper demand for his return has been
made, and whether he is charged with a crime in the
demanding state. However, this applies to extradition un-
der the general extradition acts....
Because the treatment of a juvenile offender as a
“juvenile delinquent” is not considered a criminal proceed-
ing, per se, it has been argued that where, under the laws
of the demanding state, a juvenile offender may be treated
as a juvenile delinquent, the juvenile fugitive is not charged
with a crime as required for extradition and therefore is
not subject to extradition. However, it has been held that
where the demanding state’s request cites a criminal
charge, the manner in which the demanding state treats its
juvenile offenders is not a proper subject for inquiry in the
asylum state’s extradition proceedings. Moreover, the fact
that a juvenile offender can only be tried as a juvenile
delinquent in the asylum state has also been held to have
no effect upon the propriety of extraditing a juvenile.
***
In conclusion, the cases reveal very little difference
between the treatment of a juvenile in extradition proceed-
ings and that of an adult where the process is being
conducted under the general extradition statutes. Occa-
sionally, a noteworthy difference has appeared in a case,
but these cases have not developed any following. [73
ALR3d 700, 703-705, § 2[a] (citations omitted).]
A review of the caselaw in other jurisdictions is
consistent with this analysis. For example, in Ex parte
Jetter, 495 SW2d 925 (Tex Crim App, 1973), a Texas
appellate court found “no limitation in the Uniform
Criminal Extradition Act excluding minors from its
2013] In re B
OYNTON
641
operation.” Id. Similarly, in In re O M, 565 A2d 573, 583
(DC App, 1989), the District of Columbia Court of
Appeals opined:
Although a juvenile petition does not technically charge
a crime, the rendition procedures established by the Com-
pact for juveniles charged with delinquency are designed to
be essentially the same as those long established for the
extradition of adults charged with crimes.
Specifically, the court determined:
The Constitution does not preclude this congruence of
procedures. The Extradition Clause itself makes no distinc-
tion between juveniles and adults, providing simply that
“[a] Person charged in any State...who shall flee from
Justice, and be found in another State, shall on De-
mand...be delivered up, to be removed to the State
having Jurisdiction of the Crime.” We agree with the
Supreme Judicial court of Massachusetts that the Consti-
tution “does not contemplate any difference in treatment
for criminal offenders based on age.” [Id. at 583 n 28,
quoting US Const, art IV, § 2, cl 2, and citing A Juvenile,
396 Mass 116, 118 n 2; 484 NE2d 995 (1985).]
See also StatevJMW, 936 So 2d 555, 560 (Ala Crim App,
2005). The Supreme Court of Montana has also addressed
this issue in Coble v Magone, 229 Mont 45, 49-50; 744 P2d
1244 (1987), which stated, in relevant part:
A review of the Uniform Criminal Extradition Act
shows that juveniles are not expressly included in the act,
but it also shows that juveniles are not expressly excluded.
The legislative history shows that juveniles were not inten-
tionally omitted.
***
We hold that the failure of the Legislature to include, or
specifically exclude, juveniles is of no aid to [the petitioner]
in this case....
642 302 M
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632 [Oct
The Attorney General of the State of Montana has also
recognized that juveniles are not to be exempted from
application of the Uniform Criminal Extradition Act....
In evaluation of whether juveniles could be properly extra-
dited, the Attorney General appropriately concluded that
the majority of “[j]urisdictions allow extradition of juve-
niles if they are charged with a crime in the demanding
state.” [Citation omitted.]
This is not to suggest that all caselaw is consistent. As
discussed in 73 ALR3d 700, 705, § 2[b]:
[W]here the demanding state charged its juvenile of-
fenders with juvenile delinquency only, it has been argued
that the juvenile is not charged with a crime and is
therefore not subject to extradition. This argument has
been successful in one court, and may be successful else-
where, although the weight of authority is otherwise.
[Citations omitted.]
Premised on a review of available decisions and an
analysis of those decisions, petitioner’s assertion that
he is not subject to extradition because the UCEA is
inapplicable to juveniles is unavailing. We hold that the
phrase “any person” in the UCEA means exactly what
it says and does not exclude juveniles.
Petitioner argues that other select words in the
UCEA indicate that it was not intended to apply to
juvenile delinquency proceedings. Specifically, peti-
tioner argues that the UCEA stands for “Uniform
Criminal Extradition Act” and expressly provides that
it is applicable when a person is charged in another
state with “treason, felony, or other crime....”Thus,
because a delinquency proceeding is not a “criminal”
proceeding, the UCEA cannot apply. Furthermore, be-
cause MCL 780.14 addresses committing the accused to
the “county jail” to await a requisition and does not
have any provision for detention in a juvenile facility,
the UCEA applies only to adults.
2013] In re B
OYNTON
643
As discussed in 73 ALR3d 700, 704, § 2[a], petitioner
argues: “Because the treatment of a juvenile offender as
a ‘juvenile delinquent’ is not considered a criminal
proceeding, per se, it has been argued that where, under
the laws of the demanding state, a juvenile offender
may be treated as a juvenile delinquent, the juvenile
fugitive is not charged with a crime as required for
extradition and therefore is not subject to extradition.”
Yet, contrary to this assertion, and as noted in the ALR
section:
[I]t has been held that where the demanding state’s
request cites a criminal charge, the manner in which the
demanding state treats its juvenile offenders is not a proper
subject for inquiry in the asylum state’s extradition pro-
ceedings. Moreover, the fact that a juvenile offender can
only be tried as a juvenile delinquent in the asylum state
has also been held to have no effect upon the propriety of
extraditing a juvenile. [73 ALR3d 700, 704, § 2[a] (citations
omitted).]
Once again, decisions from other jurisdictions provide
guidance. An Illinois appellate court has determined, in
ascertaining a juvenile’s right to counsel:
Although proceedings under the Juvenile Court Act are
not criminal, the filing of a delinquency petition is criminal
in nature because it requires proof beyond a reasonable
doubt. Similarly, the filing of a delinquency petition is
analogous to the filing of a criminal complaint....[People
v Fleming, 134 Ill App 3d 562, 569; 89 Ill Dec 478; 480
NE2d 1221 (1985) (citation omitted).]
Other jurisdictions have permitted extradition, find-
ing that the nature of the charging procedure used by
the demanding state is irrelevant to the issue of a
juvenile’s extradition. See Ex parte Jetter, 495 SW2d
at 925. In Jetter, the court determined it unnecessary
to address the issue whether a juvenile was required
to be certified as an adult to stand trial in the
644 302 M
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632 [Oct
demanding state because “once she is extradited [it] is a
question for the courts of the [demanding state] to deter-
mine and not one for the courts of the [asylum state].” Id.
Similarly, as discussed in State v Cook, 115 Wash App 829,
832; 64 P3d 58 (2003), “Cases under the Uniform Crimi-
nal Extradition Act...have...found the demand-
ing state’s determination of juvenile status control-
ling.” In In re Robert, 122 RI 356, 357-359; 406 A2d
266 (1979), the Rhode Island Supreme Court held
unconstitutional a statute that provided that an
individual under the age of 18 could not be extradited
to another state unless a family court judge had
initially found that the juvenile would be treated as
an adult if the out-of-state offense had been commit-
ted in the asylum state.
The issue was also discussed in detail in A Juvenile,
396 Mass at 119-121 (citations omitted):
The petitioners next argue that, because they are
minors, even if they are subject to rendition to Maryland
under the Uniform Act, they are entitled to a probable
cause hearing in Massachusetts before they can be
returned. This contention requires a review of the na-
ture of the rendition proceeding in an asylum State. A
rendition proceeding conducted in the asylum State is
limited. Once the Governor of an asylum State has
ordered rendition, a judge considering release on a writ
of habeas corpus can only decide “(a) whether the
extradition documents on their face are in order; (b)
whether the petitioner has been charged with a crime in
the demanding state; (c) whether the petitioner is the
person named in the request for extradition; and (d)
whether the petitioner is a fugitive.” “If the documents
submitted by a demanding State demonstrate that ‘a
judicial officer or tribunal there had found probable
cause, Massachusetts would not need to find probable
cause anew, nor would it need to review the adequacy of
the [demanding State’s] determination.’ ”
2013] In re B
OYNTON
645
This is consistent with the United States Supreme
Court’s discussion of the history of interstate extradi-
tion. Specifically:
Interstate extradition was intended to be a summary
and mandatory executive proceeding derived from the
language of Art. IV, § 2, cl. 2, of the Constitution. The
Clause never contemplated that the asylum state was to
conduct the kind of preliminary inquiry traditionally inter-
vening between the initial arrest and trial.
Near the turn of the century this Court...concluded:
While courts will always endeavor to see that no
such attempted wrong is successful, on the other
hand, care must be taken that the process of extra-
dition be not so burdened as to make it practically
valueless. It is but one step in securing the presence
of the defendant in the court in which he may be
tried, and in no manner determines the question of
guilt. [Doran, 439 US at 288 (citations omitted).]
In Michigan, this Court has determined that a
juvenile adjudication clearly constitutes criminal activity
because it amounts to a violation of a criminal statute, even
though that violation is not resolved in a criminal proceed-
ing. As this Court has noted, juvenile proceedings are
closely analogous to the adversary criminal process. [People
v Anderson, 298 Mich App 178, 182; 825 NW2d 678 (2012)
(citations and quotation marks omitted).]
Although the law of the asylum state is irrelevant in the
determination regarding extradition, it is worth noting
that the crime petitioner is charged with in Georgia, if
he were convicted, would constitute criminal activity
even if adjudicated through juvenile proceedings. Based
on this Court’s recognition of the criminal nature of the
activity regardless of the forum for prosecution, when
viewed in conjunction with the determinations of other
jurisdictions, petitioner’s claim that his being charged
646 302 M
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632 [Oct
by the demanding state in a juvenile proceeding pre-
cludes the propriety of his extradition is unavailing.
Accordingly, we conclude that the UCEA applies to
juveniles charged with delinquent behavior.
B. FUGITIVE FROM JUSTICE
Petitioner next contends that the UCEA does not apply
to him because the UCEA pertains to “fugitives from
justice” and he has not “fled from justice” as set forth in
MCL 780.2. Petitioner emphasizes that he left Georgia
following a brief vacation to return to his home state of
Michigan and that his travel was dictated by his mother.
Black’s Law Dictionary (9th ed) defines the term
“fugitive” in the following manner:
1. A person who flees or escapes; a refugee. 2. A
criminal suspect or a witness in a criminal case who flees,
evades, or escapes arrest, prosecution, imprisonment, ser-
vice of process, or the giving of testimony, esp. by fleeing
the jurisdiction or by hiding. See 18 USCA § 1073. — Also
termed (in sense 2) fugitive from justice.
Yet, in terms of extradition, the term “fugitive” has
historically been subject to a more restricted applica-
tion. As discussed by this Court in In re Simmans,54
Mich App 112, 116; 220 NW2d 311 (1974), the voluntary
nature of a person’s removal from the demanding state
is irrelevant. Relying, in part, on Appleyard v Massa-
chusetts, 203 US 222, 227; 27 S Ct 122; 51 L Ed 161
(1906), this Court stated:
The fact that the alleged fugitive from justice left the
state with the consent or knowledge of the state authorities
or of complainant does not affect his status as a fugitive
from justice, where he refuses to return or there is a second
indictment or complaint.
***
2013] In re B
OYNTON
647
In conformity with the decisions in other states, we
hold that “fugitivity” is shown when, as in the case now
before us, defendant is ascertained to be the person
wanted in the demanding state and was present in the
demanding state at the time the alleged offense occurred.
So that the simple inquiry must be whether the
person whose surrender is demanded is in fact a
fugitive from justice, not whether he consciously
fled from justice in order to avoid prosecution for
the crime with which he is charged by the demand-
ing state. A person charged by indictment or by
affidavit before a magistrate with the commission
within a state of a crime covered by its laws, and
who, after the date of the commission of such crime
leaves the state—no matter for what purpose or
with what motive, nor under what belief—
becomes, from the time of such leaving, and within
the meaning of the Constitution and the laws of the
United States, a fugitive from justice, and if found
in another state must be delivered up by the
governor of such state to the state whose laws are
alleged to have been violated, on the production of
such indictment or affidavit, certified as authentic
by the governor of the state from which the accused
departed. Such is the command of the supreme law
of the land, which may not be disregarded by any
state. [In re Simmans, 54 Mich App at 116-117
(citations, emphasis, and quotation marks omit-
ted).]
Although caselaw exists to the contrary, see, e.g.,
Kittle v Martin, 166 Ga 250; 142 SE 888 (1928),
Michigan courts and the United States Supreme
Court have determined that the reason for the ab-
sence of the individual from the demanding state is
irrelevant for purposes of extradition. Therefore,
petitioner’s contention in this appeal that he does not
qualify as a fugitive for purposes of extradition is
without merit.
648 302 M
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C. VALIDITY OF EXTRADITION WARRANT
Petitioner alleges that one of the extradition docu-
ments contained an inaccuracy because it indicated that
he “resides” in Georgia (and lives somewhere in Michi-
gan under the custody and control of his mother), when,
in fact, he resides in Michigan. Petitioner contends that
his residency status is important and relevant informa-
tion because Michigan’s governor “obviously thought
he was returning a Georgia resident back to his home
state.” According to petitioner, the extradition warrant
should be deemed invalid because false information was
relied on to obtain it.
Contrary to petitioner’s position, caselaw suggests
that procedural compliance is sufficient to overcome
defects or inaccuracies contained within the documen-
tation initiating extradition proceedings because of the
limited authority and discretion of the asylum state. As
discussed by the Doran Court:
Whatever the scope of discretion vested in the governor
of an asylum state, the courts of an asylum state are bound
by Art IV, § 2, by § 3182, and, where adopted, by the
Uniform Criminal Extradition Act. A governor’s grant of
extradition is prima facie evidence that the constitutional
and statutory requirements have been met. Once the
governor has granted extradition, a court considering re-
lease on habeas corpus can do no more than decide (a)
whether the extradition documents on their face are in
order; (b) whether the petitioner has been charged with a
crime in the demanding state; (c) whether the petitioner is
the person named in the request for extradition; and (d)
whether the petitioner is a fugitive. These are historic facts
readily verifiable. [Doran, 439 US at 288-289 (citations
omitted and emphasis added).]
Use of terms such as “on their face” implicitly suggests
that any in-depth inquiry into the factual premises
contained within the documents is precluded. As noted
2013] In re B
OYNTON
649
earlier by the Michigan Supreme Court in addressing a
habeas corpus proceeding challenging an extradition,
“Manifestly the field of inquiry into which the courts
may enter is very much circumscribed.” In re Ray, 215
Mich 156, 162; 183 NW 774 (1921). Citing as authori-
tative a ruling of the Pennsylvania Supreme Court, our
Supreme Court ruled, id. at 165-166:
In Commonwealth v. Supt. Co. Prison, 220 Pa. 401
[405-406; 69 A 916 (1908)], the court, after a review of the
authorities, said:
If the jurisdictional facts authorizing the extradition
of the accused appear from the papers, the court on a
hearing in habeas corpus proceedings will not go into
the merits of the case, or determine the guilt or inno-
cence of the accused. It is the duty of the asylum State
to protect the liberty of its citizens and not permit
interstate extradition proceedings to be made a pretext
for removing them to another jurisdiction for a purpose
other than that within the intendment of the Federal
Constitution. On the other hand, it is equally the duty
of the State to aid in the punishment of crime commit-
ted in another State, by the prompt extradition of the
guilty person found within its jurisdiction as a fugitive
from justice. No State can be the asylum of a fugitive
from justice, and hence it should promptly honor the
requisition of a sister State for the extradition of a
prisoner legally accused of committing an offense
against the laws of that State. If the court on habeas
corpus inquires into the merits of the charge against
the prisoner or into the motives which inspired the
prosecution in the demanding State, it exceeds its
authority under the constitutional and statutory provi-
sions regulating the extradition of criminals. The man-
date of the constitution requires ‘a person charged in
any State with a crime’ to be delivered by the asylum
State to the State whose laws he has violated. That
State alone can determine the guilt or innocence of the
offending party. The theory and the intention of the
constitutional and statutory provisions are that the
650 302 M
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632 [Oct
offender shall be compelled to submit himself for trial
to the courts of the State in which the offense was
committed, and hence it would be usurpation of author-
ity for the courts of another State to undertake to
determine the question of his guilt in a habeas corpus
proceeding. Assuming that the demanding State has
complied with the requirements of the Federal Consti-
tution and the act of congress in making the requisition
for the accused, it would be equally an unconstitutional
exercise of power for the court of the asylum State to
inquire into the motives of prosecution, instituted in
conformity with the laws of the demanding State, and
release the offender and thereby prevent his extradi-
tion for trial in the latter State.
These authorities and many others which might be cited
demonstrate that the rendition warrant of the governor
cannot be nullified by the courts on habeas corpus proceed-
ings by sustaining such claims as are here made. The
Federal Constitution as interpreted by the courts precludes
such a result. There was much foresight in adopting this
clause of the Constitution, and there has been much
wisdom in its proper interpretation. If we should accept the
theory of plaintiff’s counsel this State would soon become
the asylum of the murderers and criminal classes of the
southern States who could with safety here find immunity
from rendition, immunity from prosecution for their
crimes. Such a result our forefathers wisely prevented.
MCL 780.3, sets forth the required documents, and
their necessary content, that must accompany an extra-
dition demand in order for it to be recognized by the
Governor. Such documents include a governor’s requi-
sition under the seal of the demanding state, a prosecu-
tor’s application for requisition, verification by affidavit
of the application, an executive warrant, and the indict-
ment, information, or affidavit. MCL 780.3. Informa-
tion regarding the offender’s permanent residence is
not required to be included in those documents. Any
alleged inaccuracies within the documents associated
2013] In re B
OYNTON
651
with identifying petitioner’s permanent residence does
not render them invalid on their face.
D. CRUEL AND UNUSUAL PUNISHMENT
Finally, petitioner, now fifteen years old, seeks to
avoid extradition by suggesting that his status as a
minor and removal from his family would constitute
cruel and unusual punishment.
6
According to peti-
tioner, his extradition at “the tender age of 15” is
punishment for his alleged violation of Georgia law.
We conclude that petitioner’s contention that his
extradition to Georgia would constitute cruel and un-
usual punishment is a claim that must be addressed by
the courts of the state of Georgia, not the courts of
Michigan. See Sweeney v Woodall, 344 US 86, 89-90; 73
S Ct 139; 97 L Ed 114 (1952) (holding that a fugitive
who alleged that future punishment by the state from
which he had fled would be cruel and inhuman but who
made no showing that relief was unavailable to him in
the courts of that state, should exhaust all available
remedies in courts of said state and, thus, the district
court in the asylum state properly dismissed the peti-
tion for a writ of habeas corpus); New Mexico, ex rel
Ortiz v Reed, 524 US 151, 153; 118 S Ct 1860; 141 L Ed
2d 131 (1998) (“In case after case we have held that
claims relating to...what may be expected to happen
in the demanding State when the fugitive returns, are
issues that must be tried in the courts of that State, and
not in those of the asylum State.”). As discussed in In re
Walton, 99 Cal App 4th 934, 945-946; 122 Cal Rptr 2d 87
(2002) (citation omitted):
6
The Eighth Amendment states: “Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments in-
flicted.” US Const, Am VIII. Our Michigan Constitution prohibits pun-
ishment that is “cruel or unusual.” Const 1963, art 1, § 16.
652 302 M
ICH
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632 [Oct
The Supreme Court, with other state and federal courts,
has...consistently held that even alleged constitutional
violations that might result from the extradition of a
fugitive may not be raised in the asylum state courts. It is
simply not for officials in the asylum state to make deter-
minations, beyond those authorized by the Supreme Court,
which affect a demanding state’s constitutional right to
obtain custody of fugitives from its justice.
To the extent that petitioner argues that his deten-
tion in the state of Michigan during “this extradition
situation” is punishment for his alleged violation of
Georgia law, the Supreme Court of Tennessee has
recognized that “virtually all courts...hold that a
party contesting extradition through habeas corpus
may not raise issues that involve possible constitutional
violations committed by the asylum state.” State ex rel
Sneed v Long, 871 SW2d 148, 151 (Tenn, 1994); see also
State ex rel DeGidio v Talbot, 311 Minn 426; 250 NW2d
169 (1977) (asylum state declined to address conten-
tions that delay in commencing extradition proceeding
violated prisoner’s right of due process and that placing
detainer against him resulted in cruel and unusual
punishment). Nonetheless, petitioner cannot establish
that the circumstances of his detention rise to the level
of a constitutional violation.
With respect to a violation of the Eighth Amendment
of the United States Constitution, the United States
Supreme Court has emphasized that the Eighth
Amendment’s prohibition only applies to persons who
are subjected to “punishment” after the state has
secured an adjudication of guilt:
The Court of Appeals properly relied on the Due Process
Clause rather than the Eighth Amendment in considering
the claims of pretrial detainees. Due process requires that
a pretrial detainee not be punished. A sentenced inmate, on
the other hand, may be punished, although that punish-
2013] In re B
OYNTON
653
ment may not be “cruel and unusual” under the Eighth
Amendment. The Court recognized this distinction in
Ingraham v. Wright, 430 U.S. 651, 671-672, n. 40 [97 S Ct
1401; 51 L Ed 2d 711 (1977)]:
Eighth Amendment scrutiny is appropriate only
after the State has complied with the constitutional
guarantees traditionally associated with criminal
prosecutions. See United States v. Lovett, 328 U.S.
303, 317-318 [66 S Ct 1073; 90 L Ed 1252 (1946)]....
[T]he State does not acquire the power to punish
with which the Eighth Amendment is concerned
until after it has secured a formal adjudication of
guilt in accordance with due process of law. Where
the State seeks to impose punishment without such
an adjudication, the pertinent constitutional guaran-
tee is the Due Process Clause of the Fourteenth
Amendment. [Bell v Wolfish, 441 US 520, 535 n 16;
99 S Ct 1861; 60 L Ed 2d 447 (1979).]
Petitioner, a detainee awaiting extradition, has not
incurred a punishment under the Eighth Amendment.
See id.; see also Lynch v Cannatella, 810 F2d 1363, 1375
(CA 5, 1987) (“[T]he eighth amendment prohibition
against cruel or unusual punishment is not applicable
to cases in which the plaintiffs were not in custody as a
result of having been convicted of a crime.”); Baker v
Putnal, 75 F3d 190, 198 (CA 5, 1996) (“Pre-trial detain-
ees may not bring a cause of action based on the Eighth
Amendment....Itprotects only those who have been
convicted.”); Cavalieri v Shepard, 321 F3d 616, 620 (CA
7, 2003) (“The Eighth Amendment does not apply to
pretrial detainees....”).
As for a claim of cruel or unusual punishment under
the Michigan Constitution, petitioner’s claim fails on
the same basis. In 1925, our Supreme Court explained
that the Michigan Constitution’s provision that “cruel
or unusual punishment shall not be inflicted,” Const
1908, art 2, § 15, had “reference only to punishments
654 302 M
ICH
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632 [Oct
inflicted after convictions of crimes.” Smith v Wayne
Probate Judge, 231 Mich 409, 416; 204 NW 140 (1925).
The phraseology from article 2, § 15 of the Michigan
Constitution of 1908 is repeated verbatim in article 1,
§ 16 of the Michigan Constitution of 1963. People v
Lorentzen, 387 Mich 167, 172 n 3; 194 NW2d 827
(1972). Furthermore, this Court has defined “punish-
ment” for purposes of article 1, § 16 of the Michigan
Constitution of 1963 as “the deliberate imposition, by
some agency of the state, of some measure intended to
chastise, deter or discipline an offender.” In re Ayres,
239 Mich App 8, 14; 608 NW2d 132 (1999) (quotation
marks and citation omitted; emphasis added); see also
People v Dipiazza, 286 Mich App 137, 147; 778 NW2d
264 (2009). A person cannot be considered an offender
unless he or she has been adjudicated as such with due
process of law. See People v Rose, 289 Mich App 499,
517; 808 NW2d 301 (2010) (stating that criminal defen-
dants are presumed innocent). Thus, petitioner has not
incurred a punishment under article 1, § 16 of the
Michigan Constitution of 1963.
Accordingly, petitioner’s claim that the UCEA’s ap-
plication to him and his circumstances would constitute
cruel and unusual punishment lacks merit.
Affirmed.
B
ECKERING
,P.J., and O’C
ONNELL
and S
HAPIRO
,JJ.,
concurred.
2013] In re B
OYNTON
655
NICHOLS v HOWMET CORPORATION
Docket No. 303783. Submitted October 9, 2013, at Lansing. Decided
October 15, 2013, at 9:15 a.m. Leave to appeal sought.
Edwin A. Nichols filed an application in the Michigan Compensation
Appellate Commission against Howmet Corporation and its work-
er’s compensation insurer, Pacific Employers Insurance
Company/CIGNA and Cordant Technologies and its worker’s
compensation insurer, American Manufacturers Mutual Insurance
Company (Michigan Property & Casualty Association was substi-
tuted on appeal as a party for American Manufactuers), seeking
worker’s compensation for injuries suffered as a result of his
employment with Howmet and Cordant. Nichols injured his cer-
vical spine in 1989 while working for Howmet. He reinjured his
cervical spine at work in 1993 and had additional surgeries in 1993
and 1995, which did not alleviate the symptoms. Nichols filed an
application for worker’s compensation benefits and in 1998 a
magistrate found that a cervical spine condition disabled him but
that he could return to light-duty work. Nichols returned to work
in November 1998 and injured his low back in December 1998,
resulting in surgeries from 1999 to 2007. Nichols filed the instant
applications in 2007 and the magistrate found that Nichols had
proven by a preponderance of the evidence that he had sustained
a low-back injury as a result of the work-related injury that limited
his wage-earning capacity. American Manufacturers was ordered
to pay Nichols’s wage-loss benefits and Pacific was dismissed from
the lawsuit. In 2009, the commission found that Cordant and
Howmet were a single entity, reversed the magistrate’s order
dismissing Pacific and remanded to determine which insurance
carrier was liable for the benefits. On remand, the magistrate
found that Nichols had failed to establish an ongoing cervical spine
disability. In 2010, the commission concluded that the magistrate
had misallocated the burden of proof and remanded again with the
burden on Howmet and Pacific to prove that Nichols’s disability
had ended. On second remand, the magistrate determined that
neither Nichols nor Howmet and Pacific had proved or disproved
ongoing cervical disability. The commission accepted the magis-
trate’s determinations and ordered Howmet to pay benefits includ-
ing wage-loss benefits related to Nichols’s cervical spine injury and
656 302 M
ICH
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656 [Oct
ordered Cordant and American Manufacturers to pay benefits
related to Nichols’s low-back injury. Howmet and Pacific appealed
as on leave granted and Nichols cross-appealed. 493 Mich 890
(2012).
The Court of Appeals held:
1. On appeal, the Court of Appeals reviews the decision of the
commission, not the magistrate. The commission did not err by
finding that Howmet and Cordant are the same employer and that
the case involves a dispute between insurance carriers. The
commission’s final order was consistent with its previous finding
that Cordant and Howmet are a single entity.
2. Under the version of MCL 418.301(5) in effect when the
commission issued its March 2011 opinion and order, an employee
is entitled to wage-loss benefits if he or she establishes a disability
which is a limitation of the employee’s wage-earning capacity in
work suitable to his or her qualification and training resulting
from a personal injury or work related disease. The employee is
not entitled to wage-loss benefits if he or she receives an offer of
reasonable employment and refuses it without good cause. The
worker loses his entitlement to wage-loss benefits during the
period of refusal only; there is no permanent forfeiture of wage-
loss benefits. A worker who returns to work is entitled to have his
or her wage-loss benefits reinstated from the date that the worker
returned. If the worker is no longer disabled, he or she is not
entitled to benefits.
3. For purposes of workers’ compensation, res judicata pre-
cludes a redetermination of an employee’s disability absent a
showing of a change in the claimant’s physical condition. When an
employee is being compensated under an existing wage-loss ben-
efits order or award, compensation may not be discontinued or
reduced without a further order or award. However, res judicata
does not preclude reevaluation of an employee’s entitlement to
wage-loss benefits when his or her condition has changed. An
employee is only entitled to wage-loss benefits if the employee can
establish a causal link between a work-related injury and a
reduction in his or her wage-earning capacity. An employer may
file a petition to stop an employee’s compensation on the grounds
that the employee is still injured, but his or her injury is no longer
related to the injury. The burden of proof is on the petitioner when
an employer files a petition to stop compensation on this basis. The
commission properly concluded that Howmet and Pacific had the
burden to prove that Nichols was no longer disabled because of his
cervical spine injury. Howmet and Pacific are in effect contending
that Nichols is not entitled to wage-loss benefits from his cervical
2013] N
ICHOLS V
H
OWMET
C
ORP
657
spine injury because, even though the injury still exists, his wage
loss is no longer related to it because it is related to his low-back
injury. An employer has the burden of proof when it petitions to
stop an employee’s compensation on the grounds that the injury is
no longer related to the injury that resulted in an award of
wage-loss benefits. Similarly, an employer that contends that an
employee is no longer disabled and thus no longer entitled to
continued wage-loss benefits after ending a refusal to work has the
burden of proving that the disabled employee’s condition has
changed.
4. The successive injury rule places full liability for an employ-
ee’s disability on the carrier covering the risk at the time of the
most recent injury that caused the disability, even if a previous
injury contributed to the more recent injury. The successive injury
rule only applies when the first injury contributes to or causes the
second injury, as opposed to when an independent, intervening
force causes the second injury. The commission did not err when it
determined that the successive injury rule did not apply to the
facts of this case because there was no evidence that Nichols was
no longer disabled from the cervical spine injury when the second
disabling injury to his lower back occurred.
5. Howmet and Pacific’s argument that if Pacific is liable for
wage-loss benefits it is only obligated to the difference in benefits
above what American must pay for Nichols’s low-back injury was
not raised before the commission and was not preserved for review.
6. The commission did not err by reversing the magistrate’s
award of wage-loss benefits against Cordant and American Manu-
facturers. Under former MCL 418.301(5)(e), liability for Nichols’s
wage-loss benefits was properly assigned to Howmet and Pacific
because, as the original employer, Howmet was liable for wage-loss
benefits when Nichols lost his job after performing work for
Cordant for less than 100 weeks.
Affirmed.
W
ORKER
’
S
C
OMPENSATION —
R
EEVALUATION OF
E
NTITLEMENT TO
B
ENEFITS
A
FTER
E
NDING
R
EFUSAL TO
W
ORK —
B
URDEN OF
P
ROOF
.
An employer that contends that an employee is no longer disabled
and thus no longer entitled to continued wage-loss benefits after
ending a refusal to work has the burden of proving that the
disabled employee’s condition has changed.
McCroskey Law (by Michael J. Flynn) and John A.
Braden, for Edwin A. Nichols.
658 302 M
ICH
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656 [Oct
Smith Haughey Rice & Roegge (by Jon D. Vander
Ploeg, Calvin J. Sterk, and Thomas R. Tasker), for
Howmet Corporation and Pacific Employers Insurance
Corporation.
Conklin Benham, PC (by Martin L. Critchell), for
Cordant Technologies and Michigan Property & Casu-
alty Association.
Before: S
ERVITTO
,P.J., and W
HITBECK
and O
WENS
,JJ.
P
ER
C
URIAM
. This case involves a dispute between two
insurers of a single employer concerning who must pay
wage-loss benefits to an employee who suffered two
separate, distinct injuries. Defendant Howmet Corpo-
ration (Howmet) and its workers’ compensation in-
surer, Pacific Employers Insurance Company/Cigna
(Pacific), appeal as on leave granted
1
an order of the
Workers’ Compensation Appellate Commission (the
commission), now named Michigan Compensation Ap-
pellate Commission,
2
ordering Howmet to pay benefits
including wage-loss benefits related to the cervical
spine injury of plaintiff, Edwin A. Nichols, and ordering
defendants, Cordant Technologies (Cordant) and
American Manufacturers Mutual Insurance (Ameri-
can), to pay benefits related to Nichols’s low-back
injury. Nichols cross-appeals the same order. On appeal,
the Michigan Property & Casualty Association has been
substituted as a party for the American Manufacturers
Mutual Insurance Company.
We conclude that the commission properly deter-
mined that (1) Howmet and Cordant were a single
employer, (2) the burden to prove that Nichols was no
1
Nichols v Howmet Corp, 493 Mich 890 (2012).
2
Executive Order 2011-6, effective August 1, 2011.
2013] N
ICHOLS V
H
OWMET
C
ORP
659
longer disabled from his first injury was on Howmet
and Pacific, and (3) the successive injury rule does not
apply to the facts in this case. We conclude that we
cannot determine whether Howmet and Pacific are only
liable for a portion of Nichols’s wage-loss benefits
because they did not raise the issue before the commis-
sion. Therefore, we affirm.
I. FACTS AND PROCEDURAL HISTORY
A. NICHOLS’S CERVICAL SPINE INJURY
Nichols began working for Howmet in 1979. In June
1989, while attempting to catch a heavy barrel, Nichols
injured his cervical spine. The injury required surgery.
At that time, Pacific was the insurer on the risk for his
injury. Nichols recovered from surgery and returned to
work for Howmet in December 1989 without restric-
tions.
Nichols injured his cervical spine again in January
1993, and he began to experience neck pain, numbness,
and headaches. Nichols required another surgery and
stopped working in March 1993. He testified that the
1993 surgery did not relieve his symptoms, and the
doctor who performed the surgery testified that “[t]he
fusion did not take[.]”
In March 1995, Nichols underwent a third surgery on
his cervical spine. In Magistrate Grit’s opinion, in 1998
Nichols continued to suffer from headaches, neck aches,
arm aches, and trouble using his right hand. In 1996,
Howmet offered Nichols light-duty work. Nichols did
not return to work, and Howmet terminated his em-
ployment in November 1996.
In March 1997, Nichols returned to full-time, light-
duty work at Howmet. The company physician re-
stricted Nichols to “light duty sedentary work” with
660 302 M
ICH
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656 [Oct
restrictions. On the basis of Nichols’s complaints of
continued pain, his family physician restricted him to
working four hours a day and, in September 1997,
restricted him from working completely.
In October 1997, Nichols declined Howmet’s offer to
return to work. He petitioned for workers’ compensa-
tion benefits. In April 1998, Nichols underwent an
independent medical evaluation with Dr. Dennis Szy-
manski. Szymanski opined that Nichols could return to
full-time work as long as he avoided repetitive overhead
activities.
After a trial in June 1998, Magistrate Grit found that
Nichols could return to light-duty work, with restric-
tions. Magistrate Grit found that Nichols’s cervical
condition disabled him, but she limited his benefits to
the period from March 1997 to May 1997. Magistrate
Grit determined that Nichols “forfeit[ed] his wage loss
benefits as of the date of his refusal to participate in the
favored work program.”
B. NICHOLS’S LOW-BACK INJURY
In November 1998, Nichols returned to light-duty
work. On December 7, 1998, Nichols injured his low
back while bending to pick up a folder of papers. The
injury resulted in a series of surgeries from 1999 to
2007. At that time, American was the insurer on the
risk.
Nichols did not return to work. In April 2005, Nichols
filed an application for a hearing, naming Howmet as
his employer and providing the dates of employment
from January 1979 to February 1999. Both Pacific and
American filed carrier responses, identifying Howmet
as the employer. Nichols eventually withdrew his peti-
tion when the benefits were voluntarily paid.
2013] N
ICHOLS V
H
OWMET
C
ORP
661
In April 2007, Nichols filed two applications for
workers’ compensation benefits, one against Howmet
and Pacific, and a second against Cordant and Ameri-
can.
Dr. Yousif Hamati testified that he “would never
return [Nichols] to duty because of his multiple surger-
ies to the neck and low back[.]” Dr. Henry Ottens
testified that Nichols’s neck surgeries produced scar
tissue and made his neck vulnerable to wear and tear,
but that Nichols’s low back was “more problematic”
and would “severely restrict his activities.”
Dr. Grant J. Hyatt testified that Nichols should only
work part-time, with restrictions. But Dr. Hyatt testi-
fied that he was asked only to evaluate the extent of
Nichols’s low back injury. Szymanski testified that he
would not restrict Nichols on the basis of his cervical
spine injury, but would restrict Nichols from a variety of
activities on the basis of his low back injury.
Magistrate McAree found that Hyatt’s opinions were
the most credible. Magistrate McAree also found that
Nichols had proved by a preponderance of the evidence
that he sustained a low-back injury and his wage-
earning capacity was limited “as a result of the personal
injury of December 7, 1998.”
Magistrate McAree found that light-duty work was
no longer available for Nichols within his restrictions.
He ordered American to pay Nichols’s wage-loss ben-
efits. After the parties appealed the order, Magistrate
McAree dismissed Pacific from the suit.
C. THE COMMISSION’S 2009 DECISION
Nichols and American appealed Magistrate McAree’s
decision. Nichols asserted that both Howmet and
American were liable for full, “stacked” wage-loss ben-
662 302 M
ICH
A
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656 [Oct
efits. American contended that the insurer liable for
Nichols’s benefits was Pacific because, under MCL
418.301(5)(e), Nichols worked less than 100 weeks after
his January 1993 injury. Pacific responded that Magis-
trate McAree properly determined that American was
liable because of the successive injury rule.
The commission reversed Magistrate McAree’s order
dismissing Pacific and remanded for further proceed-
ings. The commission opined that the appeal “cen-
ter[ed] around the single issue of which carrier is liable
for paying benefits to [Nichols]” and found that “Cor-
dant [T]echnologies and Howmet Corporation are the
same entity.” Because Magistrate McAree had not ad-
dressed Nichols’s cervical spine injury, the commission
remanded.
D. PROCEEDINGS AFTER FIRST REMAND
On remand, Magistrate McAree opined that res judi-
cata did not bar litigation concerning whether Nichols
suffered from an ongoing disability, and found that the
injury to Nichols’s low back was “a new condition
distinct from [Nichols’s] prior cervical injuries.” Mag-
istrate McAree found Hamati and Hyatt the most
credible, but neither of these doctors addressed whether
Nichols had an ongoing cervical spine disability. He
found that the other doctors disagreed regarding
whether Nichols continued to suffer restrictions be-
cause of his cervical spine injury. He noted that Ottens’s
physical examination of Nichols’s neck revealed that it
was “nearly normal” and there was no documented
treatment of Nichols’s cervical spine after July 1998.
Magistrate McAree determined that Nichols’s medi-
cal proofs established a clear history of prior cervical
injuries, but that he “fail[ed] to establish that the
historical facts of those prior surgeries and continued
2013] N
ICHOLS V
H
OWMET
C
ORP
663
physical complaints are sufficient to establish ongoing
cervical disability.” The Magistrate noted that he was
not finding that the cervical condition was completely
healed or irrelevant, but that it no longer remained a
factor in his overall condition, even though Nichols was
working a lighter job when he injured his low back.
Magistrate McAree ultimately concluded that Nichols
“simply failed to establish ongoing cervical disability.”
E. THE COMMISSION’S 2010 DECISION
The commission concluded that Magistrate McAree
had “misallocated the burden of proof.” It reasoned that
MCL 418.301(5)(a) provides that if a magistrate finds
that a claimant is disabled, but suspends benefits be-
cause the employee refused to return to work, the
employee may request a determination that his or her
refusal to return to work has ended. The commission
further reasoned that if the employee proves that he or
she has returned to work—and would thus be entitled
to have his or her wage-loss benefits resume—the
employer has the opportunity to prove that the em-
ployee is no longer disabled, and that he or she is
therefore not entitled to have wage-loss benefits re-
sume. According to the commission, “[t]he employee
carries the burden of proof concerning the end of the
refusal, but the employer carries the burden of proof
that the disability ended.” Accordingly, the commission
determined that Magistrate McAree erred by conclud-
ing that Nichols had not proved continuing disability.
The commission opined that Howmet and Pacific
needed to prove that Nichols’s disability had ended. It
remanded for Magistrate McAree to determine whether
each side had satisfied its burden of proof.
A dissenting commissioner would have held that
Howmet and Pacific had forfeited the issue of whether
664 302 M
ICH
A
PP
656 [Oct
Nichols had a continuing cervical disability because
they had not filed a petition to stop Nichols’s benefits
and Magistrate McAree had not addressed whether
Nichols’s cervical condition had changed.
F. PROCEEDINGS AFTER SECOND REMAND
On second remand, Magistrate McAree determined
that Nichols proved that he returned to work. He noted
that Howmet and Pacific had not filed a motion to stop
Nichols’s benefits, and framed the second issue as
follows:
II. Did Defendant Howmet meet its burden of proving
that Plaintiff’s cervical disability had ended?
Answer: No.
Magistrate McAree explained that “none of the testi-
mony relative to the cervical condition...[was] persua-
sive on the issue of ongoing cervical disability.” He
stated that he did not “accept any claim that the
cervical condition has somehow, subsequently changed
from occupational to nonoccupational.” He explained
why he did not find any of the doctors’ opinions
persuasive on the issue of ongoing cervical disability,
and noted that he did not find “sufficient evidence that
physical limitations have ended[.]” In summary, Magis-
trate McAree concluded that “the evidence produced
neither proved nor disproved ongoing cervical disability.
Whoever had the burden of proof failed.”
G. THE COMMISSION’S 2011 DECISION
The commission accepted Magistrate McAree’s de-
terminations and modified his order “to reflect the
appropriate liabilities.” The commission rejected How-
met and Pacific’s argument that it was not the proper
party to pay benefits, because “Howmet must prove the
2013] N
ICHOLS V
H
OWMET
C
ORP
665
disability ended before any order relieves the obligation
to pay.” It also rejected Howmet and Pacific’s argument
concerning the successive injury rule on the basis that
Nichols’s injuries were to different body parts. The
commission ordered that “Defendant Cordant must pay
benefits related to plaintiff’s low back injury. Defendant
Howmet must pay benefits related to plaintiff’s cervical
injury including wage loss benefits.” A dissenting com-
missioner would have held that, for cases in which two
distinct injuries are present, “an employer paying a
lower wage loss benefit...reduces whatever obligation
the earlier injury with an employer paying a higher
wage loss benefit...has[.]” The commission disagreed,
noting that “the Supreme Court [in Arnold v Gen
Motors Corp
3
] specifically declined to decide this very
issue because the parties did not raise the issue.”
II. NUMBER OF EMPLOYERS
A. STANDARD OF REVIEW
This Court’s review of a decision of the Michigan
Compensation Appellate Commission is limited. Absent
fraud, the commission’s findings of fact are conclusive on
appeal if there is any competent evidence in the record to
support them.
4
This Court reviews de novo questions of
law involving any final order of the commission.
5
B. ANALYSIS
Nichols contends that the commission found that
Howmet and Cordant are separate employers. We dis-
3
Arnold v Gen Motors Corp, 456 Mich 682; 575 NW2d 540 (1998).
4
Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 709-710; 614
NW2d 607 (2000).
5
DiBenedetto v West Shore Hosp, 461 Mich 394, 401; 605 NW2d 300
(2000).
666 302 M
ICH
A
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656 [Oct
agree. If viewed in isolation, the commission’s final
paragraph of its final order potentially confuses the
issue, as it states:
Defendant Cordant must pay benefits related to
[Nichols’s] low back injury. Defendant Howmet must pay
benefits related to [Nichols’s] cervical injury including
wage loss benefits.
However, we cannot take this paragraph out of context.
The commission found that the conflict in this case
centered on “the single issue of which carrier is liable for
paying benefits to [Nichols]” and stated that “Cordant
[T]echnologies and Howmet Corporation are the same
entity.” The record evidence supported the commission’s
finding that Nichols had only one employer. This includes
Nichols’s testimony that he worked for Howmet and his
April 2005 application, which named Howmet as his
employer from January 1979 to February 1999. Further,
we note that it was the convention of the magistrate and
commission in this case to refer to Cordant/American as
simply Cordant, and Howmet/Pacific as Howmet, and
frequently refer to them collectively in the singular term
“defendant.”
Finally, while the dissenting commissioner clearly
referred to Howmet and Cordant as separate employ-
ers, and the magistrates’ various opinions are ambiva-
lent on the issue, the same is not true of the commis-
sion’s opinion. We review the decision of the
commission, not the decision of the magistrate.
6
In its
original opinion, the commission found that Cordant
and Howmet were the same employer, and it did not
subsequently change its original finding.
We therefore conclude that the commission’s order
does not indicate that Cordant and Howmet are sepa-
6
Mudel, 462 Mich at 709.
2013] N
ICHOLS V
H
OWMET
C
ORP
667
rate employers. The commission’s final order is consis-
tent with the commission’s previous finding that Cor-
dant and Howmet are the same employer and that this
case involves a dispute between insurance carriers.
III. LIABILITY FOR WAGE LOSS
A. STANDARD OF REVIEW
As noted, the commission’s findings of fact are con-
clusive on appeal if there is any competent evidence in
the record to support them, and we review de novo
questions of law.
7
We review de novo which party bears
the burden of proof because it is a question of law.
8
B. EXTENT OF HOWMET’S LIABILITY FOR WAGE LOSS
1. LEGAL STANDARDS
As an initial matter, we note that the Legislature
amended the provisions of the Workers’ Compensation
Act after the commission issued its order in this case.
9
This opinion concerns the provisions of MCL 418.301 as
they were in effect when the commission decided this
case.
At that time, MCL 418.301(5) governed wage-loss
benefits. To be entitled to wage-loss benefits, an em-
ployee must establish that he or she has a disability,
which is “a limitation of the employee’s wage earning
capacity in work suitable to his or her qualifications and
training resulting from a personal injury or work re-
7
Id. at 709-710; DiBenedetto, 461 Mich at 401.
8
Pickering v Pickering, 253 Mich App 694, 697; 659 NW2d 649 (2002).
9
MCL 418.301, as amended by 2011 PA 266, effective December 19,
2011. Unless otherwise noted, all references in this opinion are to the
former version of MCL 418.301.
668 302 M
ICH
A
PP
656 [Oct
lated disease.”
10
But if a disabled employee receives an
offer of reasonable employment and refuses it without
good cause, the employee is not entitled to wage-loss
benefits.
11
A worker only loses his or her entitlement to wage-
loss benefits during the period of refusal.
12
He or she
does not permanently forfeit wage-loss benefits.
13
A
worker who returns to work is entitled to have his or
her wage-loss benefits reinstated from the date that the
worker returned.
14
But if the worker is no longer
disabled, he or she is not entitled to benefits.
15
2. APPLYING THE STANDARDS
It is undisputed that Nichols ended his period of
refusal by returning to work in 1998. The question here
is: when an employer contends that the employee was
no longer disabled when he or she has returned to work
and is seeking benefits, does the employer have the
burden to prove that the employee was no longer
disabled, or does the employee have the burden to prove
that he or she continues to be disabled? Howmet and
Pacific contend that the burden is on the employee to
show that he or she has a continuing disability. Nichols
contends that res judicata either prohibits a redetermi-
nation of disability or, in the alternative, places the
burden of proof on the employer to establish that the
disability has ended. We conclude that, consistently
10
MCL 418.301(4) and (5).
11
MCL 418.301(5)(a).
12
Perez v Keeler Brass Co, 461 Mich 602, 611; 608 NW2d 45 (2000);
McJunkin v Cellasto Plastic Corp, 461 Mich 590, 598; 608 NW2d 57
(2000).
13
Perez, 461 Mich at 611; McJunkin, 461 Mich at 598.
14
McJunkin, 461 Mich at 599.
15
Perez, 461 Mich at 615.
2013] N
ICHOLS V
H
OWMET
C
ORP
669
with principles of res judicata as applied to workers’
compensation law, the burden of proof is on the em-
ployer to show that the employee’s disability has ended.
Res judicata precludes a redetermination of an em-
ployee’s disability “absent a showing of a change in the
claimant’s physical condition.”
16
Thus, when an em-
ployee is being compensated under an existing order or
award, “compensation shall not be discontinued or
reduced without a further order or award[.]”
17
But res judicata does not preclude reevaluation of an
employee’s entitlement to wage-loss benefits when his
or her condition has changed.
18
If an employee’s condi-
tion has changed, the employer may petition to stop or
reduce his or her workers’ compensation payments.
19
An employee is only entitled to wage-loss benefits if the
employee can establish a causal link between a work-
related injury and a reduction in his or her wage-
earning capacity.
20
Thus, an employer may file a petition
to stop an employee’s compensation on the grounds
that the employee is still injured, but his or her wage
loss is no longer related to the injury.
21
“On a petition to
stop compensation,...theburden of proof is upon the
petitioner.”
22
16
Kosiel v Arrow Liquors Corp, 446 Mich 374, 380; 521 NW2d 531
(1994).
17
Mich Admin Code, R 408.40(1).
18
Kosiel, 446 Mich at 380. See Reiss v Pepsi Cola Metro Bottling Co,
Inc, 249 Mich App 631, 640; 643 NW2d 271 (2002).
19
Pike v City of Wyoming, 431 Mich 589, 600-601; 433 NW2d 768
(1988); R 408.40(1).
20
Sington v Chrysler Corp, 467 Mich 144, 155, 158; 648 NW2d 624
(2002); Sweatt v Dep’t of Corrections, 468 Mich 172, 186; 661 NW2d 201
(2003).
21
See Reiss, 249 Mich App at 634-635, 639.
22
Johnson v Pearson, 264 Mich 319, 320; 249 NW 865 (1933).
670 302 M
ICH
A
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656 [Oct
It is logical to apply the law regarding an employer’s
petition to stop compensation to the context of an
employer contending that an employee is no longer
disabled and thus is not entitled to continued wage-loss
benefits after ending a refusal to work. Howmet and
Pacific are in effect contending that Nichols is no longer
entitled to wage-loss benefits from his cervical spine
injury because the injury still exists, but his wage loss is
no longer related to it. In other words, Howmet and
Pacific contend that the sole cause of Nichols’s reduced
wage-earning capacity is his low-back injury. This cir-
cumstance is similar to an employer petitioning to stop
an employee’s compensation on the grounds that the
employee’s wage loss is no longer related to his or her
injury. It would be illogical and contrary to the precepts
of res judicata to require Nichols to show that his
condition has not changed when, under similar circum-
stances, the burden of proof would be on Howmet and
Pacific to show that Nichols’s condition has changed.
Therefore, we conclude that the commission appro-
priately determined that Howmet and Pacific had the
burden to prove that Nichols was no longer disabled
because of his cervical spine injury.
C. SUCCESSIVE INJURY RULE
1. LEGAL STANDARDS
The successive injury rule places full liability for an
employee’s disability on the carrier covering the risk at
the time of the most recent injury that caused the
disability, even if a previous injury contributed to the
more recent injury.
23
The successive injury rule applies
only when the first injury contributes to or causes the
23
Mudel, 462 Mich at 724; Dressler v Grand Rapids Die Casting Corp,
402 Mich 243, 253-254; 262 NW2d 629 (1978).
2013] N
ICHOLS V
H
OWMET
C
ORP
671
second injury, as opposed to when an independent,
intervening force causes the second injury.
24
2. APPLYING THE STANDARDS
Howmet and Pacific contend that the commission
erred by failing to apply the successive injury rule to
hold American, who was the insurer on the risk at the
time of Nichols’s second injury, liable for his disability.
We disagree.
First, the commission did not find that Nichols’s
cervical spine injury caused or contributed to his low
back injury. It instead adopted the magistrate’s finding
that “subsequent injury is to [Nichols’s] lumbar spine,
which is in fact...found to be a new condition distinct
from [Nichols’s] prior cervical injuries.” Absent a find-
ing that Nichols’s cervical spine injury caused or con-
tributed to his low back injury, the successive injury
rule does not apply because the injuries are indepen-
dent. Therefore, we conclude that the commission did
not err when it concluded that the successive injury rule
did not apply to the facts in this case.
Further, Magistrate Grit found that Nichols’s cervical
spine injury disabled him and entitled him to wage-loss
benefits. The successive injury rule applies when either (1)
the first injury, by itself, did not disable the employee, or
(2) the first injury was disabling, but the employee had
recovered from it and was no longer disabled when the
second disabling injury occurred.
25
Here, there was no
evidence that when Nichols suffered his low-back injury in
1998, he was no longer disabled. Thus, the commission
24
Dressler, 402 Mich at 253; Brinkert v Kalamazoo Vegetable Parch-
ment Co, 297 Mich 611, 614-615; 298 NW 301 (1941).
25
Arnold, 456 Mich at 689; Dressler, 402 Mich 251-253; Mudel, 462
Mich at 724-726.
672 302 M
ICH
A
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656 [Oct
correctly determined that the successive injury rule did
not apply to the facts in this case.
D. ALLOCATION OF LIABILITY
Howmet and Pacific contend that, if Pacific is liable
for wage-loss benefits, it is only obligated to pay the
difference in benefits above what American must pay
for Nichols’s low-back injury. We conclude that we may
not reach this issue.
MCL 418.861 provides that this Court has the
power to review “questions of law involved in any
final order of the board[.]” We may not reach legal
arguments that were not raised before or addressed
by the commission.
26
A careful review of Howmet and
Pacific’s briefs below reveals that Howmet and Pacific
did not raise this issue before the commission and,
similarly, that the commission did not address it. How-
met and Pacific contended below only that the succes-
sive injury rule placed full liability for Nichols’s disabil-
ity on Cordant and American. Therefore, we cannot
reach the merits of this issue.
We recognize that MCL 418.301(5)(e) provides that
the original employer must pay wage-loss benefits,
but it does not allocate liability among insurance
carriers concerning whether one insurer may seek
reimbursement from another.
27
But, as the dissenting
commissioner here aptly noted, “while one would sus-
pect that the amount of Howmet’s liability ought to be
reduced by the amount of Cordant’s liability, this argu-
ment has not been made.” Regardless of whatever merit
this legal argument may have, we cannot reach it.
26
MCL 418.861; Calovecchi v Michigan, 461 Mich 616, 626; 611 NW2d
300 (2000).
27
See Arnold, 456 Mich at 691, 692 n 9.
2013] N
ICHOLS V
H
OWMET
C
ORP
673
On cross-appeal, Nichols contends that the com-
mission erred by reversing the magistrate’s award of
wage-loss benefits against Cordant and American. We
disagree. MCL 418.301(5)(e) provides that the origi-
nal employer is liable for wage-loss benefits when a
disabled employee loses his or her job after perform-
ing favored work for less than 100 weeks.
28
In this
case, Nichols lost his employment after working for
less than 100 weeks. Therefore, the commission prop-
erly assigned liability for his wage-loss benefits to
Howmet and Pacific.
E. “STACKING” OF BENEFITS
On cross-appeal, Nichols contends that he is entitled
to “stack” full wage-loss benefits from each employ-
ment because separate injuries from separate employ-
ers do not coordinate. As explained, the commission
found that Cordant and Howmet were the same em-
ployer and that this case involved a dispute between
which insurance carrier was liable to pay for Nichols’s
benefits. Because Nichols bases his argument on the
faulty premise that he was employed by two different
employers, we reject it.
IV. CONCLUSION
We conclude that the commission did not err by
requiring Pacific to prove that Nichols was no longer
disabled. We also conclude that (1) the commission
properly determined that the successive injury rule
does not apply in this case, and (2) we cannot reach
the merits of Pacific’s argument that it is only liable
for the difference in benefits because it did not raise
this legal argument before the commission.
28
MCL 418.301(5)(e); Arnold, 456 Mich at 690-691.
674 302 M
ICH
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We affirm.
S
ERVITTO
,P.J., and W
HITBECK
and O
WENS
, JJ., con-
curred.
2013] N
ICHOLS V
H
OWMET
C
ORP
675
DETROIT LIONS, INC v CITY OF DEARBORN
Docket Nos. 299414, 300830. Submitted May 8, 2013, at Detroit. Decided
October 22, 2013, at 9:00 a.m. Leave to appeal sought.
Detroit Lions, Inc. and WCF Land, LLC filed petitions in the
Michigan Tax Tribunal (MTT), challenging the ad valorem taxa-
tion of certain real property commonly known as the Detroit Lions
headquarters and practice facility, as well as the associated tan-
gible personal property, by the city of Allen Park and the city of
Dearborn for the tax years 2004 through 2009. A portion of the
real property and personal property is located in and taxed by
Dearborn and the other portion of the real and personal property
is located in and taxed by Allen Park. Ford Motor Land Develop-
ment Corporation, the original developer and owner of the practice
facility, entered into a 30-year lease with the Detroit Lions and the
lease granted the Detroit Lions an option to purchase the practice
facility. The option to purchase was assigned to William Clay Ford,
Sr., who formed WCF Land, a single-member limited liability
company, which in turn exercised the option and purchased the
practice facility from Ford Land on March 25, 2004. The MTT
concluded that Allen Park could not uncap the taxable value of the
real property following the March 25, 2005, sale and transfer of the
facility because under MCL 211.27a(7)(l), it constituted a transfer
or ownership between related companies. The MTT also deter-
mined the true cash value of the real and personal property for the
tax years in question. In Docket No. 299414, Allen Park appealed
the MTT’s uncapping decision and petitioners cross-appealed the
MTT’s determination of the true cash value of the real property. In
Docket No. 300830, petitioners appealed the MTT’s method of
determining the true cash value of the personal property.
The Court of Appeals held:
1. Under Mich Admin Code, R 792.10247(12)(b), the tribunal
may enter an order consolidating matters over which it has
acquired jurisdiction. The MTT properly consolidated MTT
Docket Nos. 00-314349 and 00-307900 and entered a single, final
decision pertaining to both cases. Allen Park, which was an
aggrieved party in MTT Docket No. 00-314349, became an ag-
grieved party with respect to the consolidated, unified proceeding
676 302 M
ICH
A
PP
676 [Oct
because the tribunal properly consolidated those claims and the
claims had effectively merged and become one unified proceeding
by the time the claim of appeal was filed in the Court of Appeals in
Docket No. 299414. Accordingly, in Docket No. 299414 Allen Park
was entitled to claim an appeal from both MTT Docket Nos.
2. MCL 211.27a(3) provides that under certain circumstances,
when a transfer of ownership occurs, the taxable value of property
may be reassessed, or uncapped, according to the following year’s
state equalized value, when property is sold or transferred. A
transfer of ownership is the conveyance of title to or a present
interest in property, including the beneficial use of the property,
the value of which is substantially equal to the value of the fee
interest. However, under MCL 211.27a(7)(l), a transfer of real
property or other ownership interests among entities that are
commonly controlled does not give rise to uncapping. Only the
actual entities involved in a transfer of real property or other
ownership interests are relevant when determining whether the
parties are commonly controlled for purposes of MCL
211.27a(7)(l); the existence of a lease of the real property being
transferred, without more, is not relevant for purposes of a
common-control analysis. In Docket No. 299414, the MTT erred
when it determined that WCF Land’s purchase of the practice
facility from Ford Land was a transfer of ownership between
related companies so that the taxable value of the property could
not be uncapped. Ford Land and WCF Land are not commonly
controlled entities within the meaning of MCL 211.27a(7)(l); while
the Detroit Lions and WCF Land are commonly controlled, WCF
Land is entirely owned by William Clay Ford, Sr. and Ford Land is
a corporate entity that is not controlled by Mr. Ford. The purchase
transaction involved only Ford Land and WCF Land; it was
irrelevant that the Detroit Lions had possession of the practice
facility under the terms of the lease because it was not a party to
the transfer of the property.
3. In general, property must be assessed at 50 percent of its
true cash value, which is the most probable price that a willing
buyer and a willing seller would arrive at through arm’s length
negotiation. A property’s highest and best use is the most profit-
able and advantageous use the owner may make of the property
even if the property is presently used for a different purpose or is
vacant, so long as there is a market or demand for such use. The
use must be legally permissible, financially feasible, maximally
productive, and physically possible. A property’s existing use may
be indicative of the use to which a potential buyer would put the
property and is relevant to the fair market value of the property.
2013] D
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Even if a property has a special purpose and limited market, its
existing use may still constitute its highest and best use. The MTT
did not err by concluding that the highest and best use of the
property as improved was its existing use as an integrated profes-
sional football team headquarters and practice facility. The MTT’s
rejection of the alternative highest and best use asserted by
petitioners was supported by competent, material, and substantial
evidence because local zoning laws did not allow such use. In
addition, the alternative highest and best use would have substan-
tially decreased the property’s value, which would violate the
principle of highest and best use.
4. The MTT has discretion to select the valuation approach
that provides the most accurate valuation under the individual
circumstances of every case. The cost-less-depreciation method is
appropriate for valuing special-purpose properties with a limited
or inadequate market. In Docket No. 299414, the MTT did not
legally err by determining that a modified cost-less-depreciation
approach, based on the original build-to-suit cost, provided the
most accurate value of the special-purpose practice facility and the
MTT’s true cash value determinations were supported by compe-
tent, material, and substantial evidence on the whole record.
5. Tangible personal property must be taxed on the basis of its
true cash value. The petitioner has the burden of proof in
establishing the true cash value of property and the MTT must
apply its expertise to the facts of the case and make an indepen-
dent determination of true cash value. In Docket No. 300830, the
MTT properly determined that petitioners’ personal property
appraiser was not credible and that petitioners did not meet their
burden of proof in establishing true cash value. However, the MTT
committed an error of law when it simply accepted respondents’
personal property valuation rather than conducting an indepen-
dent determination of true cash value. The MTT failed to consider
the other traditional methods of determining true cash value and
failed to determine the approach that most accurately reflected the
value of the property. Because the MTT did not consider the other
approaches and reconcile the values derived thereunder, the Court
could not determine whether the valuation method utilized by
respondents’ appraiser and relied on by the MTT provided an
accurate true cash value of the personal property in this case.
In Docket No. 299414, the MTT’s conclusion that the sale and
transfer of the practice facility from Ford Land to WCF Land did
not give rise to uncapping of the property’s value is reversed and
its determination of true cash value for years 1994 through 1999 is
678 302 M
ICH
A
PP
676 [Oct
affirmed. In Docket No. 300830, reversed and remanded to the
MTT for an independent determination of the true cash value of
the personal property.
T
AXATION —
P
ROPERTY
T
AX —
T
AXABLE
V
ALUE —
T
RANSFER OF
P
ROPERTY —
U
NCAPPING —
C
OMMONLY
C
ONTROLLED
E
NTITIES
.
MCL 211.27a(3) provides that under certain circumstances, when a
transfer of ownership occurs, the taxable value of property may be
reassessed, or uncapped, according to the following year’s state
equalized value, when property is sold or transferred; a transfer of
ownership is the conveyance of title to or a present interest in
property, including the beneficial use of the property, the value of
which is substantially equal to the value of the fee interest; under
MCL 211.27a(7)(l), a transfer of real property or other ownership
interests among entities that are commonly controlled does not
give rise to uncapping; only the actual entities involved in a
transfer of real property or other ownership interests are relevant
when determining whether the parties are commonly controlled
for purposes of MCL 211.27a(7)(l); the existence of a lease of the
real property being transferred, without more, is not relevant for
purposes of a common-control analysis.
Hoffert & Associates, PC (by Myles B. Hoffert and
David B. Marmon), for Detroit Lions, Inc. and WCF
Land, LLC.
Secrest Wardle (by Stephanie Simon Morita) for the
city of Dearborn.
Dykema Gossett PLLC (by Carl Rashid, Jr. and Paul
M. Mersino), for city of Allen Park.
Before: B
ECKERING
,P.J., and J
ANSEN
and M. J. K
ELLY
,
JJ.
J
ANSEN
, J. The instant consolidated appeals involve
the ad valorem taxation of certain real property, com-
monly known as the Detroit Lions headquarters and
practice facility (“practice facility” or “the real prop-
erty”), as well as the associated tangible personal prop-
erty (“the personal property”), by the city of Dearborn
2013] D
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IONS
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EARBORN
679
(“Dearborn”) and the city of Allen Park (“Allen
Park”) (collectively “respondents”). In Docket No.
299414, Allen Park appeals by right the final decision
of the Michigan Tax Tribunal (“MTT” or “tribunal”)
prohibiting it from uncapping the taxable value of the
practice facility following a sale and transfer of the
real property on March 25, 2004. Petitioners Detroit
Lions, Inc. (“Detroit Lions”) and WCF Land, LLC
(“WCF Land”) (collectively “petitioners”) cross-
appeal a different provision of that MTT decision
determining the true cash value of the real property.
In Docket No. 300830, petitioners appeal by right a
second MTT decision, specifically challenging the
MTT’s method of determining the true cash value of
the personal property. In Docket No. 299414, we
affirm in part and reverse in part. In Docket No.
300830, we reverse and remand for further proceed-
ings consistent with this opinion.
I. BACKGROUND AND PROCEDURAL HISTORY
The factual background of these appeals, while com-
plex and protracted, is not in serious dispute. The
practice facility consists of approximately 232.25 acres
of land, a two-story office building, a practice building
with an indoor football field, an outdoor football field, a
par-three golf hole, and certain other outbuildings. The
practice facility is situated partly in Dearborn and
partly in Allen Park. The personal property located at
the practice facility includes, but is not limited to,
furniture, athletic training equipment, computer equip-
ment, office machines, video and broadcast equipment,
telephones, kitchen equipment, file cabinets, a chiro-
practic table, turf care equipment, and certain col-
lectibles and antiques. Eighty-two percent of the real
property is taxed by Dearborn and 18 percent of the real
680 302 M
ICH
A
PP
676 [Oct
property is taxed by Allen Park. This 82/18 split gener-
ally governs the taxation of the personal property as
well.
The practice facility was originally constructed by
Ford Motor Land Development Corporation (“Ford
Land”) and was completed in 2000 or 2001. In 2001,
Ford Land and the Detroit Lions entered into a renew-
able, 30-year lease by which the Detroit Lions agreed to
lease the practice facility with an option to purchase.
According to Detroit Lions Senior Vice President and
Chief Financial Officer J. Thomas Lesnau, the Detroit
Lions never exercised this option to purchase the prac-
tice facility because “[t]he Lions did not have the money
to do that.” Instead, the option to buy was assigned to
William Clay Ford, Sr. Mr. Ford formed a single-member
limited liability company, WCF Land, which exercised
the option and purchased the practice facility from Ford
Land on March 25, 2004. WCF Land paid $44,015,000
for the practice facility, of which $2,386,731 represented
the value of the personal property, and $41,628,269
represented the value of the real property. As part of the
sale, WCF Land acquired all of Ford Land’s interest in
the long-term lease with the Detroit Lions, and the
Detroit Lions continued as lessee under the original
lease agreement.
On June 14, 2004, the Detroit Lions commenced
MTT Docket No. 00-307900 by filing a petition re-
questing a review of Dearborn’s assessment of the
practice facility for tax year 2004. On May 3, 2005,
WCF Land commenced MTT Docket No. 00-314349
by filing a petition requesting a review of Allen Park’s
assessment of the practice facility for tax year 2005.
Over the course of the next several years, the Detroit
Lions and WCF Land filed numerous motions seeking
to amend their petitions to add subsequent tax years.
2013] D
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IONS
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681
These motions were granted, and petitioners ulti-
mately challenged both respondents’ assessments of
the practice facility for tax years 2004 through 2009.
MTT Docket Nos. 00-307900 and 00-314349 were
eventually consolidated.
On May 3, 2005, WCF Land commenced MTT Docket
No. 00-314348 by filing a petition requesting review of
the assessment of a certain portion of the personal
property for tax year 2005. The Detroit Lions thereafter
commenced MTT Docket No. 00-315349 by filing a
petition requesting a review of the assessment of a
different portion of the personal property for tax year
2005. The following year, the Detroit Lions commenced
MTT Docket No. 00-327111 by filing a separate petition
challenging the assessment of certain items of personal
property for tax year 2006. WCF Land commenced
MTT Docket No. 00-327112 by filing a separate petition
challenging the assessment of certain other items of
personal property for tax year 2006. On June 28, 2008,
the Detroit Lions commenced MTT Docket No. 00-352900
by filing a petition claiming that Dearborn had improperly
taxed certain items of personal property. MTT Docket
Nos. 00-314348, 00-315349, 00-327111, 00-327112, and
00-352900 were ultimately consolidated. The Detroit Li-
ons and WCF Land filed numerous motions seeking to
amend their petitions to add subsequent tax years. In the
end, these motions were granted and petitioners chal-
lenged respondents’ assessments of the personal property
for tax years 2005 through 2009.
A hearing was conducted before the MTT during
December 2009 and April 2010. The MTT considered
Allen Park’s contention that it was entitled to uncap the
taxable value of the practice facility following its sale
and transfer on March 25, 2004. Specifically, the MTT
took evidence concerning whether WCF Land’s pur-
682 302 M
ICH
A
PP
676 [Oct
chase of the practice facility from Ford Land on March
25, 2004, was a transfer between entities under com-
mon control.
With regard to the personal property, petitioners
introduced valuation evidence through the testimony
of J. Michael Clarkson, a personal property appraiser
from Austin, Texas. Clarkson testified that he had
visited the practice facility once in 2003, and again in
2005, to inspect and inventory the personal property.
Clarkson determined the value for each item of
personal property according to its highest and best
use, i.e., the purpose for which the item was originally
designed or manufactured. Clarkson’s appraisal en-
compassed approximately 1,000 items of personal
property. Some items were owned by the Detroit
Lions and some were owned by WCF Land. Clarkson
testified that he did not know which items were
owned by the Detroit Lions and which were owned by
WCF Land.
Clarkson predominantly used the market-
comparison method rather than the income method or
cost-less-depreciation method to value the items of
personalty. Clarkson opined that the market-
comparison method best reflects the usual selling price,
and therefore the true cash value, of an asset. Clarkson
used market comparables from Internet e-commerce
sites. Clarkson explained that many appraisers now use
market comparable data from e-commerce sites instead
of data from trade catalogues, as was used in times past.
In appraising the personal property, Clarkson relied on
current retail prices of comparable items, such as eBay
“buy-it-now” prices. Clarkson did use the cost-less-
depreciation method to appraise certain items of per-
sonal property that were unique and did not have an
active secondary market.
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After making his appraisal, Clarkson submitted a
written report, which was admitted into evidence by the
MTT over the objection of Dearborn’s attorney. Clark-
son concluded that the aggregate true cash value of the
personal property was $1,620,000 for tax year 2005,
$1,450,000 for tax year 2006, $1,280,000 for tax year
2007, $1,330,000 for tax year 2008, and $1,200,000 for
tax year 2009.
1
The parties disagreed as to whether Clarkson had
seen and taken into account every item of personal
property at the practice facility. Counsel for Dearborn
suggested that Clarkson had missed several items dur-
ing his appraisal and repeatedly attacked Clarkson’s
market-comparables technique as unreliable. Clarkson
admitted that he could not remember which deprecia-
tion tables he had used with respect to certain items
and that he had missed a few items of personal property
during his appraisal, such as a washer and dryer.
Nonetheless, he maintained that his appraisal was
accurate. Dearborn’s attorney asserted that Clarkson
was “being purposely evasive” or “incompetent.”
Lesnau testified that some of the personal property
had been brought to the practice facility from the
Detroit Lions’ former headquarters in Pontiac, and
some of the personal property had been acquired by the
Detroit Lions after moving to the practice facility.
Moreover, some of the personal property had been
acquired directly from Ford Land. Lesnau testified that
the NFL considered the practice facility to be “state of
1
A separate document listed 10 additional items of property that were
fixed to the buildings, such as wiring, doors, built-in lockers, auditorium
seating, and kitchen hoods. The value of these items was not included in
Clarkson’s report because it was not clear whether these items should be
assessed as personalty or realty. The total value of these 10 items was
approximately $100,000. The parties agreed that it was for the MTT to
determine whether these 10 items were personalty or realty.
684 302 M
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the art” when it was built, but that much of the
equipment had become obsolete in the intervening
years.
Lesnau testified that he provided Clarkson a list of
new assets that were acquired and old assets that
were discarded or eliminated for each tax year
through 2008. Clarkson used this information in his
report. However, counsel for Dearborn questioned
whether Clarkson had actually received a list of new
acquisitions for 2008.
Lesnau testified that he walked through the prac-
tice facility in 2003 with Mr. Lott, inspected the
personal property, and identified which items of per-
sonalty belonged to Ford Land and which items
belonged to the Detroit Lions. Lesnau testified that
Clarkson was not present during this inspection and
walk-through, but that Clarkson had visited the
premises previously and had walked through the
practice facility at that time. Lesnau testified that it
took one day to conduct the walk-through and two
days to compile a list of the items of personal property
that were inspected.
Counsel for Dearborn attacked Clarkson’s methods
and credibility. Counsel took issue with Clarkson’s
values for a number of items of personal property.
Counsel also asserted that Clarkson had lied when he
stated that he had made a “three-day inspection” of the
practice facility because, as Lesnau had testified, Clark-
son did not actually conduct the inspection and inven-
tory in person but instead sent Lott. Counsel ques-
tioned Clarkson’s representation that he was never
informed which assets belonged to WCF Land and
which assets belonged to the Detroit Lions. She pointed
out that Lesnau had testified that he gave Clarkson this
information prior to the generation of his report. Lastly,
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counsel for Dearborn noted that Clarkson had failed to
determine any value for several items of personal prop-
erty.
Alphonso Consiglio, a certified personal property
examiner, testified for respondents. Consiglio at-
tempted to audit the personal property statements by
reconciling the actual personal property disclosures by
petitioners with the items listed in Clarkson’s report.
Consiglio then performed a valuation of all the personal
property by applying State Tax Commission (“STC”)
multiplier tables to the original costs of the various
assets. Consiglio identified several discrepancies be-
tween Clarkson’s report and the list of assets that were
known to be present at the practice facility. Many newly
acquired assets were not accounted for in Clarkson’s
report. Similarly, Clarkson’s report failed to account for
the disposal or elimination of other obsolete assets over
time. Consiglio testified that numerous items of the
personal property were altogether missing from Clark-
son’s report. For instance, Consiglio believed that there
was approximately $1,273,078 in true cash value miss-
ing from Clarkson’s report with respect to the personal
property for tax year 2005, $1,121,863 missing for tax
year 2006, $989,021 missing for tax year 2007, $891,789
missing for tax year 2008, and $799,594 missing for tax
year 2009. After applying the STC multiplier tables,
Consiglio concluded that the total true cash value of the
personal property owned by the Detroit Lions was:
$1,958,153 for tax year 2005, $1,446,817 for tax year
2006, $1,315,731 for tax year 2007, $1,294,634 for tax
year 2008, and $1,201,829 for tax year 2009. Consiglio
concluded that the total true cash value of the personal
property owned by WCF Land was: $1,783,292 for tax
year 2005, $1,573,048 for tax year 2006, $1,381,341 for
tax year 2007, $1,239,878 for tax year 2008, and
$1,110,853 for tax year 2009.
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With respect to the real property, the MTT heard
extensive testimony concerning the market price per
square foot for office building space, open fields, and
other commercial real property within the cities of
Dearborn and Allen Park. The MTT took considerable
testimony concerning the nature and type of buildings
at the practice facility, the size and layout of the
buildings, the fixtures and amenities in the buildings,
the plumbing and wiring, the floor plans, and other
similar details. There was also extensive testimony
concerning the landscaping, the grounds, and the par-
three golf hole located on the property. The MTT heard
testimony regarding various methods of appraising
other sports facilities located around the country. Real
estate appraiser David Bur testified that, assuming the
practice facility was not for sale together with the
entirety of Detroit Lions operation, the highest and best
use of the real property was as an office complex or
“office industrial facility.”
The MTT issued its decisions on July 12, 2010. The
tribunal first addressed the issue of uncapping the
taxable value of the real property following the sale and
transfer of March 25, 2004. The MTT found that
although the transfer by deed on March 25, 2004, would
have otherwise constituted a “transfer of ownership”
under MCL 211.27a(6)(a), it did not in this particular
case because “the subject property is owned by corpo-
rations under common control.” The MTT ultimately
concluded that, pursuant to MCL 211.27a(7)(l), WCF
Land’s purchase of the practice facility from Ford Land
on March 25, 2004, was a “transfer of ownership[]
between related companies and, therefore, the taxable
value of the property is not uncapped.”
The tribunal next addressed the real property valu-
ation for tax years 2004 through 2009. The MTT found
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it “difficult...tounderstand” how the practice facility,
for which WCF Land had paid $41,628,269 in 2004,
could have lost more than half its value in only two
years as petitioners asserted. After considering the
totality of the testimony and exhibits, the MTT con-
cluded that the best evidence of the true cash value of
the real property was the initial cost to acquire and
build the practice facility. The MTT determined that the
build-to-suit cost of $33,000,000 was the best evidence
of the true cash value of the practice facility’s buildings
in 2004. Regarding the value of the land, itself, the MTT
found that the $5,470,000 figure proposed by petition-
ers “appears reasonable for the area and [will be] used
to determine the value of the subject property.” Adding
these sums together, the MTT determined that the total
true cash value of the real property was $38,470,000 for
tax year 2004. Given the evidence concerning the fluc-
tuation in land values between 2005 and 2009, as well
as the evidence concerning depreciation of the build-
ings, the MTT set the following true cash values for the
real property for the remaining years: $39,734,700 for
tax year 2005, $39,772,200 for tax year 2006,
$36,650,500 for tax year 2007, $34,020,000 for tax year
2008, and $31,510,000 for tax year 2009. Applying the
abovementioned 82/18 split, the MTT then calculated
the true cash value taxable by Dearborn and the true
cash value taxable by Allen Park for tax years 2004
through 2009.
In its second decision, the tribunal addressed the
true cash value of the personal property for tax years
2005 through 2009. The MTT considered the valua-
tion testimony presented by the parties. The MTT
determined that the cost-less-depreciation values
provided by Consiglio were more accurate than the
Internet-based values provided by Clarkson. The
tribunal noted that the Internet-based approach em-
688 302 M
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ployed by Clarkson “can be a reliable method.” How-
ever, the tribunal concluded that the valuation evi-
dence presented by Clarkson lacked credibility
because of significant contradictions and discrepan-
cies in Clarkson’s testimony and the fact that Clark-
son had missed many items of personal property
during his appraisal. For instance, the MTT discred-
ited Clarkson’s testimony that the age of a piece of
equipment does not affect its value. The MTT also
noted that Clarkson had misrepresented the nature
and extent of his appraisal. In addition, even though
Lesnau had provided Clarkson a list of assets belong-
ing to the Detroit Lions and a comparable list of
assets belonging to WCF Land, and even though
Clarkson claimed to have personally inventoried the
assets on site at the practice facility, Clarkson was
unable to distinguish between his asset valuations for
the two entities. Lastly, during the five years that the
matter was pending, Clarkson had failed to identify
true comparables for certain assets and had made no
adjustments for depreciation over time with respect
to several of his original valuations. The MTT con-
cluded that Clarkson’s testimony was “inconsis-
ten[t]” and “damaged,” and agreed with respondents
that “Clarkson’s whole methodology” was “slipshod
in nature.” The MTT also concluded that Clarkson’s
insistence on the use of resale prices rather than
original acquisition prices was “illogical” and that
Clarkson had provided “insufficient documentation
for adjustments” over time. The tribunal noted that
Clarkson did “not apply time-relevant sales or adjust-
ments” or “contemporary sales of similar property,”
but instead made adjustments based entirely on his
own unsupported opinions which he could not effec-
tively defend when questioned.
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In addition to its conclusions concerning Clarkson’s
credibility, the MTT found that petitioners’ appraisal
data were vague, inconsistent, and “fraught with er-
rors.” The tribunal noted that many of petitioners’ data
were based on sales and listings of dissimilar items, and
that Clarkson had failed to place a value of any kind on
approximately $2,100,000 worth of assets owned by
WCF Land. Indeed, the MTT explained that Clarkson
had entirely omitted numerous assets from his valua-
tion reports. When questioned, Clarkson was unable to
explain why this had happened.
In contrast, the MTT generally accepted the valua-
tion evidence presented by respondents, including their
audit report.
2
The MTT observed that Consiglio had
reviewed petitioners’ personal property statements and
had then applied the STC multiplier tables to the
original costs of the assets. Although respondents’
proposed values were based on petitioners’ personal
property statements rather than an independent, on-
site inventory, the tribunal found that respondents’
valuations were more accurate because Consiglio had
taken into account all items of personalty in his report,
including those items that had been omitted by Clark-
son.
With respect to that portion of the personal property
owned by the Detroit Lions, the tribunal set the follow-
ing true cash values: $1,958,153 for tax year 2005,
$1,446,817 for tax year 2006, $1,315,731 for tax year
2007, $1,294,634 for tax year 2008, and $1,201,829 for
tax year 2009. With respect to that portion of the
personal property owned by WCF Land, the tribunal set
2
However, the MTT did agree with petitioners’ contention that certain
items of personalty had already been included in the valuation of the real
property, and therefore excluded those items from its determination of
the personal property’s true cash value.
690 302 M
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the following true cash values: $1,347,168 for tax year
2005, $1,193,565 for tax year 2006, $1,051,465 for tax
year 2007, $951,011 for tax year 2008, and $855,621 for
tax year 2009.
Petitioners filed a motion for reconsideration of the
MTT’s decision concerning the valuation of the per-
sonal property. On October 8, 2010, the tribunal denied
their motion for reconsideration.
In Docket No. 299414, Allen Park filed its claim of
appeal with this Court on July 30, 2010. Petitioners
filed their claim of cross-appeal on August 18, 2010. In
Docket No. 300830, petitioners filed their claim of
appeal with this Court on October 28, 2010. We consoli-
dated the appeals on March 30, 2011. Detroit Lions, Inc
v Dearborn, unpublished order of the Court of Appeals,
entered March 30, 2011 (Docket Nos. 299414, 300830).
II. STANDARDS OF REVIEW
Our review of a final decision of the MTT is limited.
Malpass v Dep’t of Treasury, 494 Mich 237, 245; 833
NW2d 272 (2013). Because fraud is not alleged in this
case, we review the tribunal’s decision for misapplica-
tion of the law or adoption of a wrong principle. Const
1963, art 6, § 28; Briggs Tax Serv, LLC v Detroit Pub
Sch, 485 Mich 69, 75; 780 NW2d 753 (2010). The MTT’s
factual findings are conclusive if they are supported by
competent, substantial, and material evidence on the
whole record. Const 1963, art 6, § 28; see also Mich Bell
Tel Co v Dep’t of Treasury, 445 Mich 470, 476; 518
NW2d 808 (1994). “Substantial evidence is any evi-
dence that reasonable minds would accept as sufficient
to support the decision[.]” In re Grant, 250 Mich App
13, 18-19; 645 NW2d 79 (2002). “Substantial evidence
must be more than a scintilla of evidence, although it
may be substantially less than a preponderance of the
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evidence.” Jones & Laughlin Steel Corp v City of
Warren, 193 Mich App 348, 352-353; 483 NW2d 416
(1992).
When statutory interpretation is involved, we review
de novo the MTT’s decision. Briggs Tax Serv, 485 Mich
at 75. Clear and unambiguous statutory language must
be applied as written. Sun Valley Foods Co v Ward, 460
Mich 230, 236; 596 NW2d 119 (1999). Whether this
Court has jurisdiction is a question of law that we
consider de novo. Chen v Wayne State Univ, 284 Mich
App 172, 191; 771 NW2d 820 (2009).
III. DEARBORN’S JURISDICTIONAL CHALLENGE
In Docket No. 299414, Dearborn argues that Allen
Park was not entitled to claim an appeal with regard to
both MTT Docket No. 00-314349 and MTT Docket No.
00-307900 because it was an aggrieved party in MTT
Docket No. 00-314349 only. This argument is without
merit. As explained, MTT Docket Nos. 00-314349 and
00-307900 were consolidated, and the tribunal entered
a single, final decision pertaining to both cases.
The MTT may enter an order consolidating mat-
ters over which it has acquired jurisdiction. Mich
Admin Code, R 792.10247(12)(b); see also MCL
205.732(c) and (d). A “final order or decision” of the
MTT is appealable to this Court as a matter of right.
MCL 205.753(1) and (2). Because the tribunal prop-
erly consolidated MTT Docket Nos. 00-314349 and
00-307900, and entered a single, final decision with
regard to both cases, the cases had effectively merged
and become one unified proceeding by the time the
claim of appeal was filed in this Court. The claims and
parties in MTT Docket Nos. 00-314349 and 00-
307900 could have been joined in a single proceeding
from the inception. Cf. Chen, 284 Mich App at 197.
692 302 M
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Moreover, the present situation did not mandate the
entry of a separate decision in each original case. Cf.
People ex rel MacMullan v Babcock, 38 Mich App 336,
343; 196 NW2d 489 (1972). We conclude that Allen
Park was an aggrieved party with respect to the
entire merged, unified proceeding; its claim of appeal
was therefore proper. See MCR 7.203(A)(2).
IV. DOCKET NO. 299414
Allen Park argues on appeal that it should have been
permitted to uncap the taxable value of the practice
facility following the transfer of that property from
Ford Land to WCF Land on March 25, 2004, because
Ford Land and WCF Land are not “commonly con-
trolled” within the meaning of MCL 211.27a(7)(l). Pe-
titioners argue on cross-appeal that the MTT commit-
ted an error of law and adopted a wrong principle when
it determined the true cash value of the practice facility
without regard for the property’s highest and best use
and usual selling price. Petitioners also argue that there
was not competent, material, and substantial record
evidence to support the MTT’s valuation of the practice
facility. We address these arguments in turn.
A. UNCAPPING THE TAXABLE VALUE
The MTT committed an error of law by concluding
that the sale and transfer of the practice facility from
Ford Land to WCF Land on March 25, 2004, did not give
rise to uncapping the property’s taxable value.
Under certain circumstances, the taxable value of
property may be reassessed according to the following
year’s state equalized value upon the sale or transfer of
the property. MCL 211.27a(3); Schwass v Riverton Twp,
290 Mich App 220, 222; 800 NW2d 758 (2010). “This is
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known as ‘uncapping’ the taxable value.” Schwass, 290
Mich App at 222. “Uncapping occurs whenever a ‘trans-
fer of ownership’ occurs.” Id., quoting MCL 211.27a(3).
“Transfer of ownership” is defined as “the conveyance
of title to or a present interest in property, including the
beneficial use of the property, the value of which is
substantially equal to the value of the fee interest.”
MCL 211.27a(6). “The statute lists several types of
conveyances that qualify as a ‘transfer of ownership,’
including ‘[a] conveyance by deed.’ ” Schwass, 290 Mich
App at 222, quoting MCL 211.27a(6)(a). However, MCL
211.27a(7) enumerates “certain types of conveyances
that are excepted from this definition and do not give
rise to uncapping.” Schwass, 290 Mich App at 222.
Among other things, “[a] transfer of real property or
other ownership interests among...entities...[that]
are commonly controlled” does not give rise to uncap-
ping. MCL 211.27a(7)(l).
Ford Land and WCF Land are not “commonly con-
trolled” within the meaning of MCL 211.27a(7)(l). We
acknowledge that the Detroit Lions and WCF Land are
commonly controlled entities. The evidence established
that WCF Land is entirely owned by William Clay Ford,
Sr., and that the Detroit Lions is controlled by Mr. Ford,
his wife, and his children. However, it is undisputed
that Ford Land, a corporate entity that is entirely
separate from the Detroit Lions, is not under the
control of Mr. Ford.
The sale and transfer of the practice facility on
March 25, 2004, took place exclusively between Ford
Land and WCF Land. The Detroit Lions was not
involved in the sale and transfer. It is irrelevant for
purposes of MCL 211.27a(7)(l) that the Detroit Lions
had possession of the practice facility, both before and
after the sale, under the terms of the long-term lease.
694 302 M
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The fact remains that the Detroit Lions was not a party
to the transfer of the property.
Because Ford Land and WCF Land are not under
common control, the sale and transfer of March 25,
2004, was not “[a] transfer of real property or other
ownership interests among...entities [that] are com-
monly controlled.” MCL 211.27a(7)(l). Accordingly, the
sale and transfer of the practice facility by deed on
March 25, 2004, was a “transfer of ownership,” MCL
211.27a(6)(a), and necessarily gave rise to uncapping
the practice facility’s taxable value, MCL 211.27a(3).
Furthermore, it does not matter that the practice
facility’s taxable value had already been uncapped
when the Detroit Lions initially entered into the long-
term lease with Ford Land in 2001. See MCL
211.27a(6)(g). The statute does not limit the number of
times that a parcel’s taxable value may be uncapped.
The MTT committed an error of law when it deter-
mined that WCF Land’s purchase of the practice facility
from Ford Land on March 25, 2004, was a “transfer of
ownership between related companies and, therefore,
the taxable value of the property is not uncapped.” We
conclude that Allen Park was entitled to uncap the
taxable value of the practice facility at the time the
property was transferred from Ford Land to WCF Land
on March 25, 2004. See MCL 211.27a(6)(a).
3
We there-
fore reverse the decision of the tribunal on this issue.
3
We fully acknowledge that, under the terms of the long-term lease,
the Detroit Lions had possession of the practice facility. However, the fact
remains that the practice facility was owned by Ford Land until the sale
of March 25, 2004. We therefore reject any attempt by petitioners to
characterize the sale of March 25, 2004, as an “equitable” or “construc-
tive” transfer of the property from the Detroit Lions to WCF Land. The
Detroit Lions merely held a leasehold interest in the property; a leasehold
interest is different from an ownership interest. See Adams Outdoor
Advertising v East Lansing (After Remand), 463 Mich 17, 25 n 5; 614
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B. TRUE CASH VALUE OF PRACTICE FACILITY
“[T]rue cash value” is the starting point for deter-
mining the taxable value of real and tangible personal
property in Michigan. Const 1963, art 9, § 3; Wayne Co
v State Tax Comm, 261 Mich App 174, 178; 682 NW2d
100 (2004); see also Meadowlanes Ltd Dividend Hous-
ing Ass’n v Holland, 437 Mich 473, 483; 473 NW2d 636
(1991). In general, property must be assessed at 50
percent of its true cash value. Const 1963, art 9, § 3;
MCL 211.27a(1); see also WPW Acquisition Co v Troy,
250 Mich App 287, 298; 646 NW2d 487 (2002). “[T]rue
cash value” is defined in relevant part as “the usual
selling price...that could be obtained for the property
at private sale, and not at auction sale....” MCL
211.27(1). “True cash value is synonymous with fair
market value,” WPW Acquisition, 250 Mich App at 298;
see also Jones & Laughlin, 193 Mich App at 353, and
refers to “the probable price that a willing buyer and a
willing seller would arrive at through arm’s length
negotiation,” Huron Ridge LP v Ypsilanti Twp, 275
Mich App 23, 28; 737 NW2d 187 (2007). The Legislature
has provided the following nonexhaustive list of factors
that should be considered in determining a property’s
true cash value:
[T]he advantages and disadvantages of location; quality
of soil; zoning; existing use; present economic income of
structures, including farm structures; present economic
income of land if the land is being farmed or otherwise put
to income producing use; quantity and value of standing
timber; water power and privileges; minerals, quarries, or
other valuable deposits not otherwise exempt under this
act known to be available in the land and their value. [MCL
211.27(1).]
NW2d 634 (2000). The sale and transfer of March 25, 2004, took place
exclusively between Ford Land and WCF Land. The Detroit Lions was
not a party to the transfer.
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Petitioners assert that the tribunal committed legal
error by concluding that the highest and best use of the
property as improved was its existing use as a practice
facility. Petitioners also contend that the tribunal im-
properly rejected their proposed alternative highest and
best uses for the property as improved. We disagree.
The concept of “highest and best use” is fundamental to
the determination of true cash value. See Detroit/Wayne
Co Stadium Auth v Drinkwater, Taylor & Merrill, Inc,
267 Mich App 625, 633; 705 NW2d 549 (2005). “ ‘High-
est and best use’ means ‘the most profitable and advan-
tageous use the owner may make of the property even if
the property is presently used for a different purpose or
is vacant, so long as there is a market demand for such
use.’ ” Id. at 633 (citation omitted). A highest and best
use determination “requires simply that the use be
legally permissible, financially feasible, maximally pro-
ductive, and physically possible.” Detroit v Detroit Plaza
Ltd Partnership, 273 Mich App 260, 285; 730 NW2d 523
(2006). “[I]t is the duty of the tribunal to hypothesize
the highest probable price at which a sale would take
place.” Safran Printing Co v Detroit, 88 Mich App 376,
382; 276 NW2d 602 (1979). “[E]xisting use may be
indicative of the use to which a potential buyer would
put the property and is, therefore, relevant to the fair
market value of the property.” Id.
The MTT specifically considered and rejected the
alternative highest and best uses proposed by petition-
ers. The tribunal found that the local zoning laws would
not permit using the property as an industrial facility.
See Detroit Plaza, 273 Mich App at 285. The tribunal
further determined that using the property as an office
complex or technology park would substantially de-
crease the property’s value, and that such alternative
uses therefore “violate[d] the princip[les] of highest and
best use.” These findings were supported by competent,
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material, and substantial evidence. The MTT did not
misapply the law or adopt a wrong principle when it
determined that the practice facility’s highest and best
use was its existing use. See Briggs Tax Serv, 485 Mich
at 75. The evidence established that petitioners’ use of
the property as an integrated professional football team
headquarters and practice facility was the most profit-
able use to which the property could feasibly be put. See
Stadium Auth, 267 Mich App at 633.
We recognize that the MTT may not determine a
property’s true cash value solely on the basis of its current
use “where such use bears no relationship to what a likely
buyer would pay for the property[.]” Safran, 88 Mich App
at 382. However, the Safran Court did not hold that a
property’s existing use could never be used to determine
its usual selling price. Clark Equip Co v Leoni Twp, 113
Mich App 778, 783; 318 NW2d 586 (1982). In Safran,88
Mich App at 382, the property was being used as a
printing plant, even though this use was obsolete and it
was undisputed that no buyer would purchase the prop-
erty for this purpose. Accordingly, the property’s existing
use was not its highest and best use. Id. In the present
case, conversely, the MTT’s valuations were based on
record evidence tending to show what a likely buyer would
pay for the property. There was competent, material, and
substantial evidence on the whole record to support the
tribunal’s determination that the practice facility’s exist-
ing use was its highest and best use. See Great Lakes Div
of Nat’l Steel Corp v Ecorse, 227 Mich App 379, 408; 576
NW2d 667 (1998).
4
Consequently, the tribunal properly
4
We note that in a previous appeal involving tax year 2002, this Court
affirmed the MTT’s determination that the practice facility’s existing use
was its highest and best use. Detroit Lions, Inc v Dearborn, unpublished
opinion per curiam of the Court of Appeals, issued June 5, 2007 (Docket
No. 266260), slip op at 3.
698 302 M
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considered the practice facility’s existing use in deter-
mining its usual selling price. See id.
Petitioners also assert that the practice facility is a
“special purpose” property for which no active market
exists, and that different standards should therefore
govern its valuation. It is unclear whether the MTT
found the overall practice facility to be unique in this
case. Indeed, the tribunal explained that it “did not find
any components that are unique to the owner other
than the indoor practice field.” We acknowledge that
“[m]erely because property is put to an unusual use
does not render it unique for purposes of property
taxes.” Safran, 88 Mich App at 383. At the same time,
however, this Court has previously affirmed the MTT’s
determination that the practice facility is a “special-
purpose” property. Detroit Lions, Inc v Dearborn, un-
published opinion per curiam of the Court of Appeals,
issued June 5, 2007 (Docket No. 266260), slip op at 3.
But irrespective of the tribunal’s exact finding on this
matter, we note that even if a parcel has a special
purpose and limited market, its existing use may still
constitute its highest and best use and provide the best
evidence of its usual selling price. See Great Lakes, 227
Mich App at 408; Clark Equip, 113 Mich App at 785. We
perceive no error with respect to this issue.
Nor do we agree with petitioners’ contention that the
MTT erred by relying on the practice facility’s original
build-to-suit cost, less depreciation, to determine the
property’s true cash value for tax years 2004 through
2009.
Petitioners argue that the practice facility’s original
cost, less depreciation, should not have been used to
value the real property. However, experts on both sides
agreed that some version of the cost approach should be
used to determine the value of the buildings and im-
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provements. The cost-less-depreciation approach is one
of the traditional methods of calculating true cash
value. Meadowlanes, 437 Mich at 484-485. “It is the
duty of the Tax Tribunal to select the approach which
provides the most accurate valuation under the circum-
stances of the individual case.” Antisdale v Galesburg,
420 Mich 265, 277; 362 NW2d 632 (1984). It is well
settled that the cost-less-depreciation method is par-
ticularly appropriate for valuing special-purpose prop-
erties with a limited or inadequate market. Presque Isle
Harbor Water Co v Presque Isle Twp, 130 Mich App 182,
193 n 14; 344 NW2d 285 (1983); Tatham v Birming-
ham, 119 Mich App 583, 591; 326 NW2d 568 (1982); see
also Twenty-two Charlotte, Inc, v Detroit, 294 Mich 275,
284-285; 293 NW 647 (1940).
Of course, under the traditional cost-less-
depreciation method, the land is valued in its unim-
proved state and depreciation (including depreciation
due to obsolescence) is then deducted from the replace-
ment or reproduction cost of the buildings and improve-
ments. See Meadowlanes, 437 Mich at 484 n 18. Here,
in contrast, the MTT deducted depreciation from the
original build-to-suit cost rather than the replacement
or reproduction cost. “However, in and of itself, this
does not render the [MTT’s] cost approach invalid
because ‘variations of the [traditional] approaches and
entirely new methods may be useful if found to be
accurate and reasonably related to the fair market
value of the subject property.’ ” Wayne Co, 261 Mich
App at 209, quoting Meadowlanes, 437 Mich at 485.
Indeed, this modified original-cost-less-depreciation ap-
proach has been used to value special-purpose proper-
ties. See Wayne Co, 261 Mich App at 210.
“[T]he determination of true cash value is not an
exact science and...often involves a reconciliation of
700 302 M
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various approaches.” Great Lakes, 227 Mich App at 398.
Moreover, it frequently “involves a considerable
amount of judgment and reasonable approximation,”
and “there is no rule of law that requires the Tax
Tribunal to quantify every possible factor affecting
value.” Id. at 398-399. It is within the expertise of the
MTT to determine which method provides the most
accurate valuation under the particular circumstances
of the case. Meadowlanes, 437 Mich at 485. In the case
at bar, the tribunal determined that a modified cost-
less-depreciation approach, based on the original build-
to-suit cost, provided the most accurate value of the
practice facility. This determination did not constitute
an error of law, and it was supported by substantial
evidence. Const 1963, art 6, § 28.
As explained earlier, the MTT determined that the
original build-to-suit cost of $33,000,000 was the best
evidence of the true cash value of the buildings and
improvements in 2004. With respect to the value of the
land, the tribunal found that the $5,470,000 figure ad-
vanced by petitioners was “reasonable for the area and
[will be] used to determine the value of the subject
property.” Adding these sums together, the tribunal deter-
mined that the total true cash value of the real property
was $38,470,000 for tax year 2004. Taking into account
the fluctuation in land values between 2005 and 2009, as
well as the evidence concerning depreciation and obsoles-
cence, the MTT set the following true cash values for the
practice facility for the remaining years: $39,734,700 for
tax year 2005, $39,772,200 for tax year 2006, $36,650,500
for tax year 2007, $34,020,000 for tax year 2008, and
$31,510,000 for tax year 2009.
5
This Court may not
5
Applying the aforementioned 82/18 split, the MTT then calculated the
amount taxable by Dearborn and the amount taxable by Allen Park for
tax years 2004 through 2009.
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substitute its judgment for that of the MTT, even if we
would have reached a different result than the tribunal.
Black v Dep’t of Social Servs, 195 Mich App 27, 30; 489
NW2d 493 (1992). The MTT’s calculation of the prac-
tice facility’s true cash value for tax years 2004 through
2009 was principled and reasoned. We affirm the tribu-
nal’s determinations concerning the true cash value of
the real property, which were supported by competent,
material, and substantial evidence on the whole record.
Const 1963, art 6, § 28.
V. DOCKET NO. 300830
Petitioners assert that the MTT erred by adopting
respondents’ proposed values, which were based on the
STC multiplier tables. Petitioners also contend that the
tribunal adopted a wrong principle and committed an
error of law by valuing the personal property in gross by
category rather than taking into account the market
value of each individual asset. For the reasons that
follow, we conclude that the tribunal committed an
error of law with regard to the valuation of the personal
property because it relied exclusively on respondents’
proposed values and did not conduct an independent
analysis of its own.
Like real property, tangible personal property must
be taxed on the basis of its true cash value. Const 1963,
art 9, § 3; see also Wayne Co, 261 Mich App at 178. “The
petitioner has the burden of proof in establishing the
true cash value of the property.” MCL 205.737(3). The
MTT must apply its expertise to the facts of the case
and make an independent determination of true cash
value. Jones & Laughlin, 193 Mich App at 353.
Petitioners’ expert, J. Michael Clarkson, purported to
determine the market value for each asset using Inter-
net e-commence data. However, as explained previously,
702 302 M
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the MTT concluded that the valuation evidence pre-
sented by Clarkson lacked credibility for numerous
reasons. The tribunal also found that Clarkson’s ap-
praisal data were vague, inconsistent, and “fraught
with errors.” The tribunal noted that the data were
based on sales and listings of dissimilar items, and
found that Clarkson had wholly omitted approximately
$1,200,000 in assets owned by WCF Land from his
appraisal. In contrast, the MTT generally accepted the
valuation evidence presented by Alphonso Consiglio.
Consiglio had reconciled petitioners’ personal property
statements and had applied the STC multiplier tables to
the original asset values. The tribunal noted that Con-
siglio had taken into account all items of personalty in
his report, including those items that had been omitted
by Clarkson.
We do not disturb the MTT’s findings regarding the
credibility of the witnesses. It is exclusively for the
tribunal to assess the credibility of the witnesses who
appeared before it. Pontiac Country Club v Waterford
Twp, 299 Mich App 427, 436; 830 NW2d 785 (2013);
President Inn Props, LLC v Grand Rapids, 291 Mich
App 625, 636; 806 NW2d 342 (2011). We must defer to
the tribunal’s determinations of witness credibility. See
Huron Behavioral Health v Dep’t of Community Health,
293 Mich App 491, 497; 813 NW2d 763 (2011).
Nevertheless, we are compelled to reverse in this case
because the MTT committed an error of law by failing
to undertake an independent determination of true
cash value. Upon finding that “[p]etitioners have not
carried their burden of proving that the assessment is
excessive,” the tribunal simply adopted the personal
property values advanced by respondents, at least with
respect to those assets owned by the Detroit Lions. And
with respect to those assets owned by WCF Land, it
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appears that the tribunal merely adopted respondents’
proposed values after making certain downward adjust-
ments for items that had already been accounted for as
part of the realty.
It is undisputed that the personal property values
advanced by respondents were based on the STC mul-
tiplier tables. The STC multiplier tables are used by
taking the property’s historical or original cost by year
of acquisition and applying a multiplier to convert the
cost to current true cash value. Wayne Co, 261 Mich App
at 181. But the STC multiplier tables are merely guides,
and do not have the force of law. Danse Corp v Madison
Heights, 466 Mich 175, 182; 644 NW2d 721 (2002);
Wayne Co, 261 Mich App at 245. Respondents’ proposed
personal property values were incomplete because they
were not developed after research and a review of the
other traditional methods for determining true cash
value. Meadowlanes, 437 Mich at 485-486.
The tribunal, itself, similarly failed to consider other
traditional methods of valuation. Upon finding that
petitioners had not carried their burden of proof, the
MTT simply adopted the values proposed by respon-
dents (with certain downward adjustments for the
assets owned by WCF Land) without making its own,
independent determination of true cash value. This
constituted error. Jones & Laughlin, 193 Mich App at
355. The tribunal must at least consider the other
traditional methods of determining true cash value,
Wayne Co, 261 Mich App at 206, and “has the duty to
determine the property’s true cash value using the
approach that most accurately reflects the value of the
property,” Pontiac Country Club, 299 Mich App at 435.
Specifically, the tribunal must “consider multiple ap-
proaches to determine...true cash value, correlating,
reconciling, and weighing the values derived under the
704 302 M
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various approaches to reach a final estimate of the
property’s value.” Id. There is simply no record evi-
dence that the MTT ever considered any of the other
approaches before setting the true cash value of the
personal property. Because the tribunal did not consider
the other approaches and reconcile the values derived
thereunder, it is impossible to discern whether the STC
multipliers provided an accurate calculation of the true
cash value of the personal property in this case. Cf.
Lionel Trains, Inc v Chesterfield Twp, 224 Mich App
350, 352; 568 NW2d 685 (1997).
We conclude that the tribunal “shirk[ed] its duties”
by failing to make an independent determination of the
true cash value of the personal property. Pontiac Coun-
try Club, 299 Mich App at 436. The tribunal was not
entitled to merely adopt the values advanced by respon-
dents, which were derived from the STC multiplier
tables, without conducting its own analysis. We accord-
ingly reverse the MTT’s decision concerning the true
cash value of the personal property and remand to the
tribunal. On remand, the MTT shall make an indepen-
dent determination of the true cash value of the per-
sonal property. Jones & Laughlin, 193 Mich App at
355-356.
In Docket No. 299414, we affirm in part and reverse
in part. In Docket No. 300830, we reverse and remand
for further proceedings consistent with this opinion. We
do not retain jurisdiction. No taxable costs pursuant to
MCR 7.219, no party having prevailed in full.
B
ECKERING
,P.J., and M. J. K
ELLY
, J., concurred with
J
ANSEN
,J.
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STURGIS v STURGIS
Docket No. 313672. Submitted August 7, 2013, at Lansing. Decided
September 17, 2013. Approved for publication October 22, 2013, at
9:05 a.m.
Kimberly Sturgis (plaintiff) and Urian Sturgis, Sr. (defendant), were
divorced in 2000. Following that time, defendant’s parenting time
with the children was suspended and reinstated several times and
changed more than once from supervised to unsupervised and
back again. In 2012, defendant moved in the Wayne Circuit Court,
Family Division, for a change of custody. The court, Maria L.
Oxholm, J., denied the motion but reinstated defendant’s parent-
ing time. Plaintiff appealed, additionally asserting that the court
had erred by failing to hold a de novo hearing on her motion for
termination of defendant’s parental rights.
The Court of Appeals held:
1. MCL 552.507(4) provides that upon the written request of
either party or motion of the court, the trial court must hold a de
novo hearing on any matter that has been the subject of a referee
hearing. The referee, however, did not deny plaintiff’s motion to
terminate defendant’s parental rights, but instead stated that the
trial court could address it at a later hearing. Because the referee
did not rule on the issue of termination, the statute did not require
the trial court to hold a de novo hearing. The trial court, which was
in the domestic-relations section of the family division of the
Wayne Circuit Court, had jurisdiction to hear and decide the
termination issue but decided that the juvenile section of the
family division was more capable of deciding the matter because
the judge had never handled a termination case and the ongoing
divorce case was a separate matter. In light of the Wayne Circuit
Court’s division of labor in its family division, the trial court chose
to conserve the resources of the court, as it was authorized to do
under MCR 3.215(F)(2), and its decision to not handle the matter
was not legally erroneous.
2. The trial court’s findings with regard to a reasonable
likelihood of abuse or neglect during defendant’s parenting time
were against the great weight of the evidence, and the court
committed a palpable abuse of discretion. Plaintiff argued that the
706 302 M
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trial court incorrectly determined that it was in the children’s best
interests to reinstate defendant’s parenting time. Under MCL
722.27(1)(c), a trial court may modify or amend its previous
judgments or orders for proper cause shown or because of a change
of circumstances. If the proposed change does not change the
custodial environment, the burden is on the parent proposing the
change to establish by a preponderance of the evidence that the
change is in the child’s best interests. A trial court may use both
the statutory best-interest factors in the Child Custody Act, MCL
722.23, and the factors listed in the parenting-time statute, MCL
722.27a(6), when deciding whether to award parenting time. MCL
722.27a(6)(c) provides that a court may consider whether there is
a reasonable likelihood of abuse or neglect of the child during
parenting time. The Court of Appeals took judicial notice of two
prior cases in which defendant’s parental rights to other children
were terminated. The trial court in this case knew about defen-
dant’s entire history, yet concluded that he nonetheless should
have parenting time with the two children, who clearly exhibited
behavioral and emotional problems based on defendant’s conduct.
Defendant’s criminal sexual conduct convictions; his history of
violence; his son’s plea that he not be in defendant’s care; his
abhorrent, abusive behavior towards the children in the other
cases, including repugnant disciplinary tactics; and his outright
denial of culpability suggested a strong likelihood of future abuse
or neglect of the children during parenting time.
Affirmed in part and reversed in part.
Kimberly Sturgis in propria persona.
Before: S
AAD
,P.J., and K. F. K
ELLY
and G
LEICHER
,JJ.
P
ER
C
URIAM
. Plaintiff appeals the trial court’s ruling
on defendant’s motion for a change in custody. Plaintiff
specifically challenges the trial court’s failure to hold a
de novo hearing on her motion for termination of
defendant’s parental rights and the trial court’s order
reinstating defendant’s parenting time. For the reasons
set forth, we affirm in part and reverse in part.
Plaintiff argues that the trial court erred by denying
her a de novo hearing on the subject of her termination
motion. “Whether there is a statutory requirement for
a hearing de novo... is a question of law calling for
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review de novo on appeal.” Cochrane v Brown, 234 Mich
App 129, 131; 592 NW2d 123 (1999). MCL 552.507(4)
provides:
The court shall hold a de novo hearing on any matter
that has been the subject of a referee hearing, upon the
written request of either party or upon motion of the court.
The request of a party shall be made within 21 days after
the recommendation of the referee is made available to
that party. [Emphasis added.]
MCR 3.215(F)(2) provides, in relevant part:
The court may [during a de novo hearing], in its
discretion:
***
(d) impose any other reasonable restrictions and condi-
tions to conserve the resources of the parties and the court.
MCL 712A.19b(1) provides that a “child, guardian,
custodian, concerned person, agency, or children’s om-
budsman” may file a petition to terminate a person’s
parental rights.
MCL 552.507(4) does not require the trial court to
hold a de novo hearing because the termination issue
was not the subject of the referee hearing. The referee
did not deny plaintiff’s motion to terminate defendant’s
parental rights, but instead stated that the trial court
could address it at a later hearing. The purpose of a de
novo hearing is for the trial court to “render[] its own
decision based on the evidence, independent of any
prior...ruling.” Heindlmeyer v Ottawa Co Concealed
Weapons Licensing Bd, 268 Mich App 202, 219; 707
NW2d 353 (2005). Because the referee did not make a
ruling on the issue of termination, there was no basis
for a de novo hearing.
708 302 M
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The trial court had jurisdiction to hear and decide the
termination issue, but the trial court decided that the
juvenile section of the family division of the circuit
court was more capable of deciding the matter.
The Wayne Circuit Court developed a family court plan
that divided its family division into a juvenile section and a
domestic relations section, each of which is assigned par-
ticular causes of action in part because the geographical
distance between the Lincoln Hall of Justice (where child
protective proceedings are heard) and the Coleman A.
Young Municipal Building (where domestic relations mat-
ters are heard.) Wayne Circuit Court Administrative Order
No. 1997–04; Wayne Circuit Court Administrative Order
No. 1997–05. For example, the juvenile section is assigned
delinquency and abuse and neglect cases, whereas the
domestic relations section is assigned cases pertaining to
divorce, paternity, support, custody, and emancipation of
minors. Each section, however, has the same authority and
jurisdiction as the other section over matters enumerated
in MCL 600.1021. [In re AP, 283 Mich App 574, 595-596;
770 NW2d 403 (2009).]
The trial court determined that plaintiff should file a
petition in the juvenile section of the family division of
the circuit court because the judge had never handled a
termination case and the ongoing divorce case was a
separate matter. In light of the Wayne Circuit Court’s
division of labor, the trial court chose “to conserve the
resources of...thecourt.” MCR 3.215(F)(2)(d). Thus,
while the court clearly could have handled the matter,
its decision not to do so was not legally erroneous.
Plaintiff argues the trial court incorrectly deter-
mined that it was in the children’s best interests to
reinstate defendant’s parenting time. An appellate
court must affirm a trial court’s parenting-time orders
“ ‘unless the trial court’s findings were against the
great weight of the evidence, the court committed a
palpable abuse of discretion, or the court made a clear
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legal error on a major issue.’ ” Shade v Wright, 291
Mich App 17, 20-21; 805 NW2d 1 (2010) (citation
omitted). “Under the great weight of the evidence
standard, this Court should not substitute its judgment
on questions of fact unless the facts clearly preponder-
ate in the opposite direction.” Id. at 21. “In child
custody cases, ‘[a]n abuse of discretion exists when the
trial court’s decision is so palpably and grossly violative
of fact and logic that it evidences a perversity of will, a
defiance of judgment, or the exercise of passion or
bias.’ ” Id. (citation omitted) (alteration in original).
“Clear legal error occurs ‘when the trial court errs in its
choice, interpretation, or application of the existing
law.’ ” Id. (Citation omitted.)
“Under MCL 722.27(1)(c), a trial court may ‘[m]odify
or amend its previous judgments or orders for proper
cause shown or because of change of circum-
stances....” Id. at 22 (alterations in original). The
definition of “proper cause” or “change of circum-
stances” is “more expansive...when a modification in
parenting time does not alter the established custodial
environment.” Id.at28.
“If the proposed change does not change the custo-
dial environment,...theburden is on the parent pro-
posing the change to establish, by a preponderance of
the evidence, that the change is in the child[ren’s] best
interests.” Id. at 23. A trial court may use “[b]oth the
statutory best interest factors in the Child Custody Act,
MCL 722.23, and the factors listed in the parenting
time statute, MCL 722.27a(6)” when deciding whether
to award parenting time. Id. at 31. When a trial court
makes a parenting-time decision, it may limit its find-
ings to the contested issues. Id. at 31-32.
MCL 722.23 lists the following relevant best-interest
factors:
710 302 M
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(e) The permanence, as a family unit, of the existing or
proposed custodial home or homes.
***
(i) The reasonable preference of the child, if the court
considers the child to be of sufficient age to express
preference.
***
(l) Any other factor considered by the court to be
relevant to a particular child custody dispute.
MCL 722.27a(6)(c) provides that a court may consider
whether there is a “reasonable likelihood of abuse or
neglect of the child during parenting time.”
With all due respect to the trial court, we strongly
disagree with its implicit finding that there was not a
“reasonable likelihood of abuse or neglect of the child
during parenting time.” MCL 722.27a(6)(c). Since the
divorce judgment in 2000, the trial court repeatedly
changed defendant’s parenting time from supervised to
unsupervised and back again, his parenting time was
suspended and reinstated numerous times, and defen-
dant only sporadically attended supervised parenting
visits. At age 10, defendant’s daughter was drawing
sexually explicit pictures at school, and his son, age 12,
was writing letters stating that he was sexually active
and that he likes to watch pornographic films. Plaintiff
also reported to the police that defendant’s other
daughter, age 11, asked his son to touch her breast. The
trial court stated that there was no violation of any law
and that it did not believe that defendant was inten-
tionally showing the children pornography. However,
the court acknowledged defendant’s use of inappropri-
ate language in disciplining his son, but suggested that
discipline “was not the worst thing in the world” for the
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child. The court disregarded the son’s statement that he
did not wish to be with his father at all.
The record reveals that defendant has at least two
prior criminal sexual conduct convictions and that he
failed to register as a sex offender as required by state
law. While the record reflects that the trial court was
aware of the entirety of defendant’s history, we specifi-
cally take judicial notice of In re Stephens, unpublished
opinion per curiam of the Court of Appeals, issued
March 29, 2007 (Docket Nos. 271015 and 271016), and
In re Sturgis, unpublished opinion per curiam of the
Court of Appeals, issued May 15, 2008 (Docket Nos.
280118 and 280119).
In Stephens, unpub op at 2, this Court affirmed the
trial court’s decision to terminate defendant’s parental
rights to one minor child. Evidence showed that defen-
dant had severely abused another child in the house-
hold, beating and whipping the child with a belt and
causing burns, bruises, and marks on the child’s body.
Id. at 4. Defendant also admitted that he punished the
child “by forcing him to stand in a closet and to stand
with his arms outstretched for long periods of time.” Id.
In the same case, this Court observed that defendant
had caused severe injuries to yet another child in the
household when he bathed the child “in scalding hot
water, either negligently or as a punishment for failures
in toilet training.” Id. at 5. Defendant had previously
caused bruises, marks, and burns on the same child. Id.
The police were unable to prosecute defendant for the
abuse because the mother, Jennifer Stephens, refused
to cooperate with the police. Id. In the case, “[t]he
majority of caseworkers and other professional opined
that...abuse by [defendant] would likely recur.” Id.at
6.
712 302 M
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In Sturgis, unpub op at 2, defendant’s parental rights
were terminated for another child, Y., who was born
during the proceedings in Stephens. This Court ob-
served that termination of defendant’s parental rights
to the baby was proper under MCL 712A.19b(3)(b)(i),
which states that the court may terminate parental
rights if
[t]he child or a sibling of the child has suffered physical
injury or physical or sexual abuse under 1 or more of the
following circumstances:
(i) The parent’s act caused the physical injury or physi-
cal or sexual abuse and the court finds that there is a
reasonable likelihood that the child will suffer from injury
or abuse in the foreseeable future if placed in the parent’s
home.
Defendant did not challenge that ground for termina-
tion, but this Court observed that it had
determined in In re Stephens, supra, slip op at 5–6, that
[defendant] caused physical injury or physical abuse of
[Y.’s] siblings, [Z.] and [S.]. Further, there is a reasonable
likelihood that [Y.] would suffer physical injury or abuse in
the foreseeable future if placed in [defendant’s] home.
[Defendant] continued to blame his inappropriate behavior
on his upbringing and attempted to minimize what hap-
pened previously. He also denied using some of the forms of
punishment described by [Z.] and claimed that [Z.] slept in
the basement because he wanted to. [Defendant] admitted
that [S.] was seriously burned while in his care, but gave
several explanations for how it happened, denied the
severity of the burns, and continued to maintain that it was
an accident. He never addressed the older injuries that
were detected on [S.]. He also never addressed the inap-
propriateness of potty training a child in a basement
laundry tub. Additionally, his testimony denying criminal
responsibility associated with his prior convictions for
criminal sexual conduct, his lawsuits associated with these
proceedings, and his accusations of corruption and racism
2013] S
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demonstrate a pattern of blaming others rather than
accepting responsibility for his actions. The trial [court] did
not clearly err in finding that there was a reasonable
likelihood that [Y.] would be injured or abused in the
foreseeable future if placed in [defendant’s] home. [Id.at
2-3.]
The Court also noted other grounds for terminating
defendant’s parental rights to the child:
The evidence showed that [Y.] spent her first three
weeks in the care of her paternal grandmother, whom
[defendant] admitted was an alcoholic. Further, [defen-
dant] continued to fail to accept responsibility for his prior
abusive behavior and Stephens continued to minimize his
culpability and make excuses for his behavior. Thus, there
was a reasonable likelihood that [Y.] would be injured or
abused if placed in the care of either respondent.
With regard to [MCL 712A.19b(3)(k)(iii)], this Court
determined in In re Stephens, supra, slip op at 5–6, that
[defendant’s] abuse of [Y.’s] siblings included battering,
torture, and other severe physical abuse. The trial court
did not clearly err in finding that termination of [defen-
dant’s] parental rights was appropriate under [MCL
712A.19b(3)(k)(iii)]. [Id.at3.]
Again, the record indicates that the trial court knew
about defendant’s entire history, yet concluded that
defendant should have parenting time with the two
children now at issue, who clearly exhibited behavioral
and emotional problems resulting from defendant’s
conduct.
While we generally affirm parenting-time orders, the
record in this case simply demands a different result,
and we specifically hold that the trial court’s findings
with regard to the lack of a reasonable likelihood of
abuse or neglect were against the great weight of the
evidence and that the court committed a palpable abuse
of discretion. Shade, 291 Mich App at 20-21. The record,
714 302 M
ICH
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706 [Oct
including defendant’s criminal sexual conduct convic-
tions, his son’s plea that he not be in defendant’s care,
and defendant’s abhorrent, abusive behavior towards
the other children in cases before this Court strongly
suggest a “reasonable likelihood of abuse or neglect of
the child during parenting time.” MCL 722.27a(6)(c).
Indeed, defendant’s history of violence, repugnant dis-
ciplinary tactics, and outright denial of culpability indi-
cate a strong likelihood of continued abuse, just as the
Court found in defendant’s prior termination cases.
Affirmed in part and reversed in part.
S
AAD
,P.J., and K. F. K
ELLY
and G
LEICHER
, JJ., con-
curred.
2013] S
TURGIS V
S
TURGIS
715
S
PECIAL
O
RDERS
SPECIAL ORDERS
In this section are orders of the Court of general
interest to the bench and bar of the state.
Order Entered August 22, 2013:
D
ANIEL
A
DAIR V
S
TATE OF
M
ICHIGAN,
Docket No. 302142. Pursuant to the
opinion issued concurrently with this order, the motion to expedite
consideration of objections to special master’s report pursuant to MCR
7.206(E)(2) is denied as moot. Additionally, this case is referred to Special
Master Michael Warren for further proceedings consistent with the
opinion of this Court. We retain jurisdiction.
Proceedings on referral in this matter shall commence within 28 days
of the Clerk’s certification of this order, and they shall be given priority
until they are concluded. As stated in the accompanying opinion,
*
the
Special Master shall take proofs and make factual findings regarding
plaintiff’s claim that the existing appropriations do not fully fund the
necessary costs of the CEPI mandates. The proceedings before the
Special Master are limited to this issue only. The parties shall file with
this Court a copy of all pleadings and documents filed with the Special
Master. The Special Masters’s findings of fact and other determinations
shall be made in a written report to be filed with this Court. Transcripts
of the proceedings before the Special Master shall be transmitted to this
Court within 21 days after the issuance of the Special Master’s report.
The parties shall have 21 days from the filing of the transcripts in which
to file objections to the Special Master’s report. The objections shall be
accompanied by a supporting brief and exhibits. Answers to the objec-
tions made by opposing parties shall be filed within 14 days of the filing
of the objections.
Order Entered October 1, 2013:
O
SHTEMO
C
HARTER
T
OWNSHIP V
K
ALAMAZOO
C
OUNTY
R
OAD
C
OMMISSION,
Docket No. 304986. The Court orders that the motion for reconsideration
is granted, and this court’s opinion issued June 25, 2013, is hereby
vacated. A new opinion
**
is attached to this order. The parties are advised
that only the last paragraph of the opinion has been altered.
* Reported at 302 Mich App 305—R
EPORTER
.
** Reported at 302 Mich App 574—R
EPORTER
.
S
PECIAL
O
RDERS
801
