MICHIGAN REPORTS
CASES DECIDED
IN THE
SUPREME COURT
OF
MICHIGAN
FROM
July 21, 2009, through August 13, 2009
DANILO ANSELMO
REPORTER OF DECISIONS
VOL. 484
FIRST EDITION
2011
Copyright 2011, by Michigan Supreme Court
The paper used in this publication meets the minimum
requirements of American National Standard for Information
Sciences—Permanence of Paper for Printed Library Materials,
ANSI Z39.48-1984.
SUPREME COURT
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C
HIEF
J
USTICE
MARILYN KELLY......................................................................... 2013
J
USTICES
MICHAEL F. CAVANAGH............................................................ 2015
ELIZABETH A. WEAVER............................................................ 2011
MAURA D. CORRIGAN ............................................................... 2015
ROBERT P. YOUNG, J
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. ............................................................. 2011
STEPHEN J. MARKMAN............................................................ 2013
DIANE M. HATHAWAY ............................................................... 2017
C
OMMISSIONERS
MICHAEL J. SCHMEDLEN, C
HIEF
C
OMMISSIONER
SHARI M. OBERG, D
EPUTY
C
HIEF
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OMMISSIONER
JOHN K. PARKER DANIEL C. BRUBAKER
TIMOTHY J. RAUBINGER MICHAEL S. WELLMAN
LYNN K. RICHARDSON GARY L. ROGERS
KATHLEEN A. FOSTER RICHARD B. LESLIE
NELSON S. LEAVITT FREDERICK M. BAKER, J
R
.
DEBRA A. GUTIERREZ-M
C
GUIRE KATHLEEN M. DA WSON
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:
CARL L. GROMEK
C
LERK:
CORBIN R. DAVIS
C
RIER:
DAVID G. PALAZZOLO
R
EPORTER OF
D
ECISIONS:
DANILO ANSELMO
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COURT OF APPEALS
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HENRY WILLIAM SAAD.............................................................. 2015
C
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J
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P
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CHRISTOPHER M. MURRAY...................................................... 2015
J
UDGES
DAVID H. SAWYER....................................................................... 2011
WILLIAM B. MURPHY................................................................. 2013
MARK J. CAVANAGH ................................................................... 2009
KATHLEEN JANSEN ................................................................... 2013
E. THOMAS FITZGERALD.......................................................... 2015
RICHARD A. BANDSTRA ............................................................ 2015
JOEL P. HOEKSTRA..................................................................... 2011
JANE E. MARKEY......................................................................... 2015
PETER D. O’CONNELL ............................................................... 2013
WILLIAM C. WHITBECK............................................................. 2011
MICHAEL J. TALBOT .................................................................. 2015
KURTIS T. WILDER...................................................................... 2011
BRIAN K. ZAHRA.......................................................................... 2013
PATRICK M. METER.................................................................... 2015
DONALD S. OWENS..................................................................... 2011
KIRSTEN FRANK KELLY............................................................ 2013
PAT M. DONOFRIO ...................................................................... 2011
KAREN FORT HOOD ................................................................... 2015
STEPHEN L. BORRELLO............................................................ 2013
ALTON T. DAVIS ........................................................................... 2015
DEBORAH A. SERVITTO............................................................. 2013
JANE M. BECKERING ................................................................. 2013
ELIZABETH L. GLEICHER......................................................... 2013
CYNTHIA DIANE STEPHENS.................................................... 2011
DOUGLAS B. SHAPIRO ............................................................... 2013
C
HIEF
C
LERK:
SANDRA SCHULTZ MENGEL
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D
IRECTOR:
LARRY S. ROYSTER
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CIRCUIT JUDGES
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1. MICHAEL R. SMITH ........................................................ 2015
2. ALFRED M. BUTZBAUGH .............................................. 2013
JOHN E. DEWANE ........................................................... 2015
JOHN M. DONAHUE ....................................................... 2011
CHARLES T. L
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SATA........................................................ 2011
3. DEB ORAH ROSS ADAMS................................................ 2013
DAVID J. ALLEN............................................................... 2015
WENDY M. BAXTER ........................................................ 2013
ANNETTE J. BERRY ........................................................ 2013
GREGORY D. BILL ........................................................... 2013
SUSAN D. BORMAN......................................................... 2015
ULYSSES W. BOYKIN....................................................... 2015
MARGIE R. BRAXTON..................................................... 2011
MEGAN MAHER BRENNAN .......................................... 2015
BILL CALLAHAN.............................................................. 2015
JAMES A. CALLAHAN ..................................................... 2011
MICHAEL J. CALLAHAN................................................. 2015
JEROME C. CAVANAGH.................................................. 2013
JAMES R. CHYLINSKI..................................................... 2011
ROBERT J. COLOMBO, J
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. ............................................. 2013
DAPHNE MEANS CURTIS.............................................. 2015
CHRISTOPHER D. DINGELL ......................................... 2015
GERSHWIN ALLEN DRAIN............................................ 2011
PRENTIS EDWARDS........................................................ 2013
CHARLENE M. ELDER.................................................... 2015
VONDA R. EVANS............................................................. 2015
EDWARD EWELL, J
R
. ...................................................... 2013
PATRICIA SUSAN FRESARD.......................................... 2011
SHEILA ANN GIBSON..................................................... 2011
JOHN H. GILLIS, J
R
. ....................................................... 2015
DAVID ALAN GRONER ................................................... 2011
RICHARD B. HALLORAN, J
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AMY PATRICIA HATHAWAY........................................... 2013
CYNTHIA GRAY HATHAWAY......................................... 2011
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MICHAEL M. HATHAWAY .............................................. 2011
MURIEL D. HUGHES....................................................... 2011
THOMAS EDWARD JACKSON ....................................... 2013
VERA MASSEY JONES .................................................... 2015
MARY BETH KELLY......................................................... 2015
TIMOTHY MICHAEL KENNY ........................................ 2011
ARTHUR J. LOMBARD .................................................... 2015
KATHLEEN I. MACDONALD.......................................... 2011
KATHLEEN M. McCARTHY ............................................ 2013
WADE H. M
C
CREE............................................................ 2015
BRUCE U. MORROW........................................................ 2011
JOHN A. MURPHY ........................................................... 2011
MARIA L. OXHOLM ......................................................... 2013
LINDA V. PARKER ............................................................ 2013
LYNNE A. PIERCE............................................................ 2015
LITA MASINI POPKE ...................................................... 2011
DANIEL P. RYAN............................................................... 2013
MICHAEL F. SAPALA ....................................................... 2013
RICHARD M. SKUTT ....................................................... 2015
MARK T. SLAVENS........................................................... 2011
LESLIE KIM SMITH ........................................................ 2013
VIRGIL C. SMITH............................................................. 2013
JEANNE STEMPIEN........................................................ 2011
CRAIG S. STRONG ........................................................... 2015
BRIAN R. SULLIVAN ....................................................... 2011
DEBORAH A. THOMAS ................................................... 2013
ISIDORE B. TORRES ....................................................... 2011
CAROLE F. YOUNGBLOOD............................................. 2013
ROBERT L. ZIOLKOWSKI............................................... 2015
4. SUSAN E. BEEBE ............................................................. 2011
JOHN G. M
C
BAIN, J
R
. ...................................................... 2015
CHAD C. SCHMUCKER ................................................... 2011
THOMAS D. WILSON....................................................... 2013
5. JAMES H. FISHER............................................................ 2015
6. JAMES M. ALEXANDER.................................................. 2015
MARTHA ANDERSON ..................................................... 2015
LEO BOWMAN.................................................................. 2013
RAE LEE CHABOT........................................................... 2011
MARK A. GOLDSMITH.................................................... 2013
LISA ORTLIEB GORCYCA............................................... 2015
NANCI J. GRANT.............................................................. 2015
SHALINA D. KUMAR ....................................................... 2015
DENISE LANGFORD MORRIS ....................................... 2013
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CHERYL A. MATTHEWS................................................. 2011
JOHN JAMES M
C
DONALD.............................................. 2011
RUDY J. NICHOLS............................................................ 2015
COLLEEN A. O’BRIEN .................................................... 2011
DANIEL PATRICK O’BRIEN........................................... 2011
WENDY LYNN POTTS ..................................................... 2013
EDWARD SOSNICK.......................................................... 2013
MICHAEL D. WARREN, J
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JOAN E. YOUNG .............................................................. 2011
7. DUNCAN M. BEAGLE...................................................... 2011
JOSEPH J. FARAH............................................................ 2011
JUDITH A. FULLERTON ................................................ 2013
JOHN A. GADOLA............................................................ 2015
ARCHIE L. HAYMAN ....................................................... 2013
GEOFFREY L. NEITHERCUT ........................................ 2013
DAVID J. NEWBLATT ...................................................... 2011
MICHAEL J. THEILE ....................................................... 2015
RICHARD B. YUILLE....................................................... 2015
8. DAVID A. HOORT ............................................................. 2011
SUZANNE KREEGER ...................................................... 2015
9. GARY C. GIGUERE, J
R
. ................................................... 2015
STEPHEN D. GORSALITZ............................................... 2011
J. RICHARDSON JOHNSON ........................................... 2011
PAMELA L. LIGHTVOET ................................................ 2013
ALEXANDER C. LIPSEY.................................................. 2011
10. JANET M. BOES ............................................................... 2013
FRED L. BORCHARD....................................................... 2011
WILLIAM A. CRANE ........................................................ 2011
DARNELL JACKSON........................................................ 2013
ROBERT L. KACZMAREK ............................................... 2009
11. WILLIAM W. CARMODY .................................................. 2015
12. CHARLES R. GOODMAN................................................. 2015
13. THOMAS G. POWER ........................................................ 2011
PHILIP E. RODGERS, J
R
. ............................................... 2015
14. JAMES M. GRAVES, J
R
. .................................................. 2013
TIMOTHY G. HICKS ........................................................ 2011
WILLIAM C. MARIETTI................................................... 2011
JOHN C. RUCK ................................................................. 2015
15. PATRICK W. O’GRADY..................................................... 2015
16. JAMES M. BIERNAT, S
R
. ................................................. 2011
RICHARD L. CARETTI..................................................... 2011
MARY A. CHRZANOWSKI ............................................... 2011
DIANE M. DRUZINSKI .................................................... 2015
JOHN C. FOSTER............................................................. 2015
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PETER J. MACERONI...................................................... 2015
DONALD G. MILLER ....................................................... 2013
EDWARD A. SERVITTO, J
R
. ........................................... 2013
MARK S. SWITALSKI....................................................... 2013
MATTHEW S. SWITALSKI .............................................. 2015
ANTONIO P. VIVIANO ..................................................... 2011
DAVID VIVIANO ............................................................... 2013
TRACEY A. YOKICH ........................................................ 2013
17. GEORGE S. BUTH............................................................ 2011
PAUL J. DENEFELD......................................................... 2011
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KATHLEEN A. FEENEY.................................................. 2015
DONALD A. JOHNSTON, III........................................... 2013
DENNIS B. LEIBER.......................................................... 2013
JAMES ROBERT REDFORD............................................ 2011
PAUL J. SULLIVAN .......................................................... 2015
MARK A. TRUSOCK......................................................... 2013
CHRISTOPHER P. YATES................................................ 2013
DANIEL V. ZEMAITIS ...................................................... 2015
18. WILLIAM J. CAPRATHE.................................................. 2011
KENNETH W. SCHMIDT ................................................. 2013
JOSEPH K. SHEERAN..................................................... 2015
19. JAMES M. BATZER........................................................... 2015
20. CALVIN L. BOSMAN ........................................................ 2011
JON H. HULSING............................................................. 2015
EDWARD R. POST ............................................................ 2011
JON VAN ALLSBURG ...................................................... 2013
21. PAUL H. CHAMBERLAIN................................................ 2011
MARK H. DUTHIE............................................................ 2013
22. ARCHIE CAMERON BROWN.......................................... 2011
TIMOTHY P. CONNORS................................................... 2013
MELINDA MORRIS .......................................................... 2013
DONALD E. SHELTON .................................................... 2015
DAVID S. SWARTZ ............................................................ 2015
23. RONALD M. BERGERON ................................................ 2015
WILLIAM F. MYLES.......................................................... 2009
24. DONALD A. TEEPLE ....................................................... 2015
25. JENNIFER MAZZUCHI.................................................... 2015
THOMAS L. SOLKA.......................................................... 2011
26. MICHAEL G. MACK ......................................................... 2015
27. ANTHONY A. MONTON.................................................. 2013
TERRENCE R. THOMAS ................................................. 2015
28. WILLIAM M. FAGERMAN ............................................... 2015
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29. MICHELLE M. RICK ........................................................ 2011
RANDY L. TAHVONEN.................................................... 2015
30. ROSEMARIE ELIZABETH AQUILINA .......................... 2015
LAURA BAIRD................................................................... 2013
WILLIAM E. COLLETTE ................................................. 2015
JOYCE DRAGANCHUK.................................................... 2011
JAMES R. GIDDINGS....................................................... 2011
JANELLE A. LAWLESS.................................................... 2015
PAULA J.M. MANDERFIELD .......................................... 2013
31. JAMES P. ADAIR ............................................................... 2013
PETER E. DEEGAN.......................................................... 2011
DANIEL J. KELLY............................................................. 2015
32. ROY D. GOTHAM.............................................................. 2015
33. RICHARD M. PAJTAS....................................................... 2015
34. MICHAEL J. BAUMGARTNER........................................ 2011
35. GERALD D. LOSTRACCO................................................ 2015
36. WILLIAM C. BUHL........................................................... 2013
PAUL E. HAMRE............................................................... 2015
37. ALLEN L. GARBRECHT .................................................. 2011
JAMES C. KINGSLEY....................................................... 2015
STEPHEN B. MILLER...................................................... 2011
CONRAD J. SINDT ........................................................... 2013
38. JOSEPH A. COSTELLO, J
R
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MICHAEL W. L
A
BEAU...................................................... 2013
MICHAEL A. WEIPERT ................................................... 2011
39. MARGARET MURRAY-SCHOLZE NOE ......................... 2015
TIMOTHY P. PICKARD .................................................... 2013
40. MICHAEL P. HIGGINS ..................................................... 2015
NICK O. HOLOWKA ......................................................... 2011
41. MARY BROUILLETTE BARGLIND................................ 2011
RICHARD J. CELELLO .................................................... 2015
42. MICHAEL J. BEALE ......................................................... 2015
JONATHAN E. LAUDERBACH....................................... 2013
43. MICHAEL E. DODGE....................................................... 2011
44. MICHAEL P. HATTY......................................................... 2013
STANLEY J. LATREILLE................................................. 2013
DAVID READER................................................................ 2011
45. PAUL E. STUTESMAN..................................................... 2013
46. JANET M. ALLEN............................................................. 2011
DENNIS F. MURPHY........................................................ 2015
47. STEPHEN T. DAVIS.......................................................... 2011
48. GEORGE R. CORSIGLIA.................................................. 2011
KEVIN W. CRONIN........................................................... 2015
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49. SCOTT P. HILL-KENNEDY ............................................. 2013
RONALD C. NICHOLS ..................................................... 2015
50. NICHOLAS J. LAMBROS ................................................. 2013
51. RICHARD I. COOPER ...................................................... 2015
52. M. RICHARD KNOBLOCK............................................... 2015
53. SCOTT LEE PAVLICH...................................................... 2011
54. PATRICK REED JOSLYN................................................. 2013
55. THOMAS R. EVANS.......................................................... 2015
ROY G. MIENK.................................................................. 2013
56. THOMAS S. EVELAND .................................................... 2013
CALVIN E. OSTERHAVEN .............................................. 2015
57. CHARLES W. JOHNSON.................................................. 2013
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1. MARK S. BRAUNLICH...................................................... 2015
TERRENCE P. BRONSON................................................. 2013
JACK VITALE..................................................................... 2011
2A. NATALIA M. KOSELKA.................................................... 2011
JAMES E. SHERIDAN....................................................... 2015
2B. DONALD L. SANDERSON................................................ 2015
3A. BRENT R. WEIGLE ........................................................... 2015
3B. JEFFREY C. MIDDLETON ............................................... 2015
WILLIAM D. WELTY ......................................................... 2013
4. STACEY A. RENFROW ...................................................... 2015
5. GARY J. BRUCE ................................................................. 2011
ANGELA PASULA.............................................................. 2015
SCOTT SCHOFIELD.......................................................... 2015
STERLING R. SCHROCK ................................................. 2013
DENNIS M. WILEY............................................................ 2011
7. ARTHUR H. CLARKE, III................................................. 2015
ROBERT T. HENTCHEL................................................... 2011
8-1. ANNE E. BLATCHFORD .................................................. 2011
PAUL J. BRIDENSTINE.................................................... 2013
CAROL A. HUSUM ............................................................ 2011
8-2. ROBERT C. KROPF ........................................................... 2015
8-3. RICHARD A. SANTONI..................................................... 2015
VINCENT C. WESTRA ...................................................... 2011
10. SAMUEL I. DURHAM, J
R
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JOHN A. HALLACY........................................................... 2015
JOHN R. HOLMES ............................................................ 2013
FRANKLIN K. LINE, J
R
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12. JOSEPH S. FILIP............................................................... 2011
JAMES M. JUSTIN ............................................................ 2013
MICHAEL J. KLAEREN.................................................... 2015
R. DARRYL MAZUR........................................................... 2015
14A. RICHARD E. CONLIN....................................................... 2015
J. CEDRIC SIMPSON......................................................... 2013
KIRK W. TABBEY............................................................... 2011
14B. CHARLES POPE ................................................................ 2015
15. JULIE CREAL..................................................................... 2013
CHRISTOPHER S. EASTHOPE ....................................... 2015
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ELIZABETH POLLARD HINES....................................... 2011
16. SEAN P. KAVANAGH......................................................... 2015
KATHLEEN J. M
C
CANN ................................................... 2013
17. KAREN KHALIL ................................................................ 2011
CHARLOTTE L. WIRTH ................................................... 2015
18. SANDRA A. CICIRELLI..................................................... 2013
MARK A. McCONNELL..................................................... 2015
19. WILLIAM C. HULTGREN ................................................. 2011
MARK W. SOMERS ............................................................ 2015
RICHARD WYGONIK ........................................................ 2013
20. MARK J. PLAWECKI ......................................................... 2015
DAVID TURFE.................................................................... 2013
21. RICHARD L. HAMMER, J
R
. ............................................. 2015
22. SYLVIA A. JAMES.............................................................. 2013
23. GENO SALOMONE ........................................................... 2013
WILLIAM J. SUTHERLAND............................................. 2015
24. JOHN T. COURTRIGHT.................................................... 2015
RICHARD A. PAGE............................................................ 2011
25. DAVID A. BAJOREK.......................................................... 2015
DAVID J. ZELENAK........................................................... 2011
26-1. RAYMOND A. CHARRON ................................................. 2015
26-2. MICHAEL F. CIUNGAN .................................................... 2015
27. RANDY L. KALMBACH..................................................... 2013
28. JAMES A. KANDREVAS.................................................... 2015
29. LAURA REDMOND MACK............................................... 2013
30. BRIGETTE R. OFFICER ................................................... 2011
31. PAUL J. PARUK.................................................................. 2015
32A. ROGER J. L
A
ROSE............................................................ 2015
33. JAMES KURT KERSTEN.................................................. 2015
MICHAEL K. M
C
NALLY.................................................... 2013
EDWARD J. NYKIEL ......................................................... 2011
34. TINA BROOKS GREEN .................................................... 2013
BRIAN A. OAKLEY............................................................ 2011
DAVID M. PARROTT ......................................................... 2015
35. MICHAEL J. GEROU......................................................... 2011
RONALD W. LOWE ............................................................ 2013
JAMES A. PLAKAS ............................................................ 2015
36. LYDIA NANCE ADAMS..................................................... 2011
ROBERTA C. ARCHER...................................................... 2013
MARYLIN E. ATKINS........................................................ 2013
JOSEPH N. BALTIMORE.................................................. 2015
NANCY M
C
CAUGHAN BLOUNT..................................... 2015
IZETTA F. BRIGHT............................................................ 2011
ESTHER LYNISE BRYANT-WEEKES.............................. 2008
RUTH C. CARTER ............................................................. 2011
DONALD COLEMAN......................................................... 2013
NANCY A. FARMER .......................................................... 2013
DEBORAH GERALDINE FORD....................................... 2011
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RUTH ANN GARRETT ..................................................... 2013
RONALD GILES................................................................. 2015
KATHERINE HANSEN ..................................................... 2011
BEVERLY J. HAYES-SIPES .............................................. 2015
PAULA G. HUMPHRIES ................................................... 2011
PATRICIA L. JEFFERSON................................................ 2015
VANESA F. JONES-BRADLEY ......................................... 2013
KENNETH J. KING........................................................... 2015
DEBORAH L. LANGSTON ............................................... 2013
WILLIE G. LIPSCOMB, J
R
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LEONIA J. LLOYD............................................................. 2011
MIRIAM B. MARTIN-CLARK ........................................... 2011
DONNA R. MILHOUSE..................................................... 2013
B. PENNIE MILLENDER ................................................. 2011
CYLENTHIA L. MILLER .................................................. 2011
MARK A. RANDON............................................................ 2015
KEVIN F. ROBBINS........................................................... 2013
DAVID S. ROBINSON, J
R
. ................................................ 2013
C. LORENE ROYSTER...................................................... 2013
BRENDA KAREN SANDERS............................................ 2015
37. JOHN M. CHMURA ........................................................... 2013
JENNIFER FAUNCE ......................................................... 2015
DAWNN M. GRUENBURG ............................................... 2011
WALTER A. JAKUBOWSKI, J
R
. ....................................... 2013
MATTHEW P. SABAUGH.................................................. 2013
38. CARL F. GERDS III ............................................................ 2015
39. JOSEPH F. B OEDEKER .................................................... 2015
MARCO A. SANTIA ........................................................... 2013
CATHERINE B. STEENLAND ......................................... 2011
40. MARK A. FRATARCANGELI............................................ 2013
JOSEPH CRAIGEN OSTER.............................................. 2015
41A. MICHAEL S. MACERONI ................................................. 2015
DOUGLAS P. SHEPHERD................................................. 2013
STEPHEN S. SIERAWSKI ................................................ 2011
KIMBERLEY ANNE WIEGAND....................................... 2013
41B. LINDA DAVIS ..................................................................... 2015
SEBASTIAN LUCIDO........................................................ 2013
SHEILA A. MILLER........................................................... 2011
42-1. DENIS R. L
E
DUC ............................................................... 2015
42-2. WILLIAM H. HACKELL III .............................................. 2011
1
43. KEITH P. HUNT................................................................. 2013
JOSEPH LONGO................................................................ 2011
ROBERT J. TURNER......................................................... 2009
44. TERRENCE H. BRENNAN............................................... 2015
DANIEL SAWICKI ............................................................. 2013
1
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45A. JAMES L. WITTENBERG ................................................. 2015
45B. MICHELLE FRIEDMAN APPEL ..................................... 2015
DAVID M. GUBOW ............................................................ 2015
46. SHEILA R. JOHNSON....................................................... 2015
SUSAN M. MOISEEV ........................................................ 2013
WILLIAM J. RICHARDS.................................................... 2011
47. JAMES BRADY ................................................................... 2015
MARLA E. PARKER........................................................... 2011
48. MARC BARRON ................................................................. 2011
DIANE D’AGOSTINI ......................................................... 2013
KIMBERLY SMALL............................................................ 2015
50. RONDA FOWLKES GROSS .............................................. 2013
MICHAEL C. MARTINEZ.................................................. 2015
PRESTON G. THOMAS..................................................... 2011
CYNTHIA THOMAS WALKER......................................... 2015
51. RICHARD D. KUHN, J
R
. ................................................... 2015
PHYLLIS C. M
C
MILLEN ................................................... 2013
52-1. ROBERT BONDY ............................................................... 2013
BRIAN W. M
AC
KENZIE...................................................... 2015
DENNIS N. POWERS ........................................................ 2011
52-2. JOSEPH G. FABRIZIO....................................................... 2015
KELLEY RENAE KOSTIN................................................ 2011
52-3. LISA L. ASADOORIAN...................................................... 2013
NANCY TOLWIN CARNIAK............................................. 2011
JULIE A. NICHOLSON ..................................................... 2015
52-4. WILLIAM E. BOLLE.......................................................... 2015
DENNIS C. DRURY............................................................ 2013
MICHAEL A. MARTONE .................................................. 2011
53. THERESA M. BRENNAN ................................................. 2015
L. SUZANNE GEDDIS....................................................... 2011
CAROL SUE READER....................................................... 2013
54A. LOUISE ALDERSON ......................................................... 2011
PATRICK F. CHERRY ........................................................ 2015
FRANK J. D
E
LUCA ............................................................ 2013
CHARLES F. FILICE.......................................................... 2015
AMY R. KRAUSE................................................................ 2011
54B. RICHARD D. BALL ............................................................ 2011
DAVID L. JORDON............................................................ 2013
55. DONALD L. ALLEN........................................................... 2015
THOMAS P. BOYD.............................................................. 2015
56A. HARVEY J. HOFFMAN ..................................................... 2011
JULIE H. REINCKE .......................................................... 2015
56B. GARY R. HOLMAN ............................................................ 2013
57. WILLIAM A. BAILLARGEON........................................... 2013
STEPHEN E. SHERIDAN................................................. 2013
JOSEPH S. SKOCELAS..................................................... 2015
58. SUSAN A. JONAS .............................................................. 2015
RICHARD J. KLOOTE....................................................... 2013
BRADLEY S. KNOLL......................................................... 2015
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KENNETH D. POST.......................................................... 2011
59. PETER P. VERSLUIS......................................................... 2011
60. HAROLD F. CLOSZ, III...................................................... 2015
MARIA LADAS HOOPES .................................................. 2015
MICHAEL JEFFREY NOLAN .......................................... 2013
ANDREW WIERENGO ...................................................... 2011
61. DAVID J. BUTER................................................................ 2015
J. MICHAEL CHRISTENSEN........................................... 2011
JEANINE NEMESI L
A
VILLE ........................................... 2013
BEN H. LOGAN, II............................................................. 2013
DONALD H. PASSENGER................................................ 2011
KIMBERLY A. SCHAEFER ............................................... 2015
62A. PABLO CORTES................................................................. 2015
STEVEN M. TIMMERS ..................................................... 2013
62B. WILLIAM G. KELLY .......................................................... 2015
63-1. STEVEN R. SERVAAS ....................................................... 2015
63-2. SARA J. SMOLENSKI........................................................ 2015
64A. RAYMOND P. VOET........................................................... 2015
64B. DONALD R. HEMINGSEN ............................................... 2015
65A. RICHARD D. WELLS ......................................................... 2015
65B. STEWART D. M
C
DONALD................................................ 2015
66. WARD L. CLARKSON........................................................ 2013
TERRANCE P. DIGNAN .................................................... 2015
67-1. DAVID J. GOGGINS........................................................... 2015
67-2. JOHN L. CONOVER .......................................................... 2015
RICHARD L. HUGHES...................................................... 2011
67-3. LARRY STECCO................................................................. 2015
67-4. MARK C. M
C
CABE ............................................................. 2015
CHRISTOPHER ODETTE................................................. 2013
68. TRACY L. COLLIER-NIX .................................................. 2015
WILLIAM H. CRAWFORD, II ........................................... 2013
MARY CATHERINE DOWD.............................................. 2011
HERMAN MARABLE, J
R
. ................................................. 2013
NATHANIEL C. PERRY, III .............................................. 2015
70-1. TERRY L. CLARK .............................................................. 2013
M. RANDALL JURRENS................................................... 2011
M. T. THOMPSON, J
R
. ...................................................... 2015
70-2. CHRISTOPHER S. BOYD ................................................. 2011
ALFRED T. FRANK............................................................ 2015
KYLE HIGGS TARRANT .................................................. 2013
71A. LAURA CHEGER BARNARD ........................................... 2015
JOHN T. CONNOLLY ........................................................ 2013
71B. KIM DAVID GLASPIE ....................................................... 2015
72. RICHARD A. COOLEY, J
R
. ............................................... 2011
JOHN D. MONAGHAN...................................................... 2013
CYNTHIA SIEMEN PLATZER ......................................... 2015
73A. GREGORY S. ROSS............................................................ 2015
73B. DAVID B. HERRINGTON ................................................. 2015
74. CRAIG D. ALSTON ............................................................ 2015
xv
T
ERM
E
XPIRES
J
ANUARY
1
OF
TIMOTHY J. KELLY .......................................................... 2013
SCOTT J. NEWCOMBE..................................................... 2011
75. STEVEN CARRAS.............................................................. 2011
JOHN HENRY HART ........................................................ 2015
76. WILLIAM R. RUSH............................................................ 2015
77. SUSAN H. GRANT............................................................. 2015
78. H. KEVIN DRAKE ............................................................. 2015
79. PETER J. WADEL .............................................................. 2015
80. JOSHUA M. FARRELL ...................................................... 2015
81. ALLEN C. YENIOR ............................................................ 2015
82. RICHARD E. NOBLE......................................................... 2015
83. DANIEL L. SUTTON......................................................... 2015
84. DAVID A. HOGG ................................................................ 2015
85. BRENT V. DANIELSON .................................................... 2015
86. JOHN D. FORESMAN ....................................................... 2011
MICHAEL J. HALEY.......................................................... 2015
THOMAS J. PHILLIPS ...................................................... 2013
87. PATRICIA A. MORSE ........................................................ 2015
88. THEODORE O. JOHNSON............................................... 2015
89. MARIA L. BARTON ........................................................... 2015
90. RICHARD W. MAY.............................................................. 2015
91. ELIZABETH BIOLETTE CHURCH................................. 2015
92. BETH GIB SON................................................................... 2015
93. MARK E. LUOMA .............................................................. 2009
94. GLENN A. PEARSON........................................................ 2015
95A. JEFFREY G. BARSTOW.................................................... 2015
95B. CHRISTOPHER S. NINOMIYA ........................................ 2015
96. DENNIS H. GIRARD ......................................................... 2011
ROGER W. KANGAS .......................................................... 2015
97. MARK A. WISTI ................................................................. 2015
98. ANDERS B. TINGSTAD, J
R
. ............................................ 2015
xvi
MUNICIPAL JUDGES
T
ERM
E
XPIRES
J
ANUARY
1
OF
RUSSELL F. ETHRIDGE ....................................................... 2012
CARL F. JARBOE ................................................................... 2010
MATTHEW R. RUMORA....................................................... 2010
xvii
PROBATE JUDGES
T
ERM
E
XPIRES
C
OUNTY
J
ANUARY
1
OF
Alcona .......................LAURA A. FRAWLEY .............................. 2013
Alger/Schoolcraft......CHARLES C. NEBEL............................... 2013
Allegan ......................MICHAEL L. BUCK................................. 2013
Alpena .......................THOMAS J. L
A
CROSS ............................. 2013
Antrim.......................NORMAN R. HAYES................................ 2013
Arenac.......................JACK WILLIAM SCULLY........................ 2013
Baraga.......................TIMOTHY S. BRENNAN ........................ 2013
Barry .........................WILLIAM M. DOHERTY......................... 2013
Bay ............................KAREN TIGHE ........................................ 2013
Benzie........................NANCY A. KIDA....................................... 2013
Berrien ......................MABEL JOHNSON MAYFIELD............. 2009
Berrien ......................THOMAS E. NELSON ............................. 2013
Branch.......................FREDERICK L. WOOD ........................... 2013
Calhoun.....................PHILLIP E. HARTER.............................. 2011
Calhoun.....................GARY K. REED......................................... 2013
Cass ...........................SUSAN L. DOBRICH ............................... 2013
Cheboygan ................ROBERT JOHN BUTTS.......................... 2013
Chippewa ..................LOWELL R. ULRICH .............................. 2013
Clare/Gladwin...........THOMAS P. McLAUGHLIN .................... 2013
Clinton ......................LISA SULLIVAN ....................................... 2013
Crawford ...................MONTE BURMEISTER........................... 2013
Delta..........................ROBERT E. GOEBEL, J
R
. ....................... 2013
Dickinson..................THOMAS D. SLAGLE.............................. 2013
Eaton.........................MICHAEL F. SKINNER........................... 2013
Emmet/Charlevoix ...FREDERICK R. MULHAUSER .............. 2013
Genesee.....................JENNIE E. BARKEY ............................... 2015
Genesee.....................F. KAY BEHM ........................................... 2013
Gogebic......................JOEL L. MASSIE...................................... 2013
Grand Traverse........DAVID L. STOWE .................................... 2013
Gratiot.......................JACK T. ARNOLD .................................... 2013
Hillsdale....................MICHAEL E. NYE.................................... 2013
Houghton..................FRASER T. STROME............................... 2013
Huron........................DAVID L. CLABUESCH .......................... 2013
xviii
Ingham......................R. GEORGE ECONOMY.......................... 2013
Ingham......................RICHARD JOSEPH GARCIA.................. 2015
Ionia ..........................ROBERT SYKES, J
R
................................. 2013
Iosco ..........................JOHN D. HAMILTON.............................. 2013
Iron............................C. JOSEPH SCHWEDLER ...................... 2013
Isabella......................WILLIAM T. ERVIN ................................. 2013
Jackson .....................DIANE M. RAPPLEYE ............................ 2013
Kalamazoo ................CURTIS J. BELL, J
R
................................. 2013
Kalamazoo ................PATRICIA N. CONLON........................... 2015
Kalamazoo ................DONALD R. HALSTEAD ........................ 2011
Kalkaska ...................LYNNE MARIE BUDAY .......................... 2013
Kent...........................NANARUTH H. CARPENTER ............... 2011
Kent...........................PATRICIA D. GARDNER......................... 2013
Kent...........................G. PATRICK HILLARY ............................ 2013
Kent...........................DAVID M. MURKOWSKI ........................ 2015
Keweenaw.................JAMES G. JAASKELAINEN ................... 2013
Lake...........................MARK S. WICKENS................................. 2013
Lapeer .......................JUSTUS C. SCOTT .................................. 2013
Leelanau ...................JOSEPH E. DEEGAN .............................. 2013
1
Lenawee ....................GREGG P. IDDINGS ................................ 2013
Livingston.................CAROL HACKETT GARAGIOLA........... 2013
Luce/Mackinac..........W. CLAYTON GRAHAM .......................... 2013
Macomb.....................KATHRYN A. GEORGE........................... 2015
Macomb.....................PAMELA GILBERT O’SULLIVAN ......... 2013
Manistee....................THOMAS N. BRUNNER.......................... 2013
Marquette .................MICHAEL J. ANDEREGG....................... 2013
Mason........................MARK D. RAVEN..................................... 2013
Mecosta/Osceola .......LaVAIL E. HULL...................................... 2013
Menominee ...............WILLIAM A. HUPY.................................. 2013
Midland.....................DORENE S. ALLEN................................. 2013
Missaukee .................CHARLES R. PARSONS .......................... 2013
Monroe......................JOHN A. HOHMAN, J
R
. .......................... 2013
Monroe......................PAMELA A. MOSKWA............................. 2015
Montcalm..................CHARLES W. SIMON, III ........................ 2013
Montmorency............JOHN E. FITZGERALD .......................... 2013
Muskegon..................NEIL G. MULLALLY ............................... 2011
Muskegon..................GREGORY C. PITTMAN ......................... 2013
Newaygo....................GRAYDON W. DIMKOFF ........................ 2013
Oakland.....................LINDA S. HALLMARK ............................ 2013
Oakland.....................EUGENE ARTHUR MOORE .................. 2011
Oakland.....................DANIEL A. O’BRIEN............................... 2015
Oakland.....................ELIZABETH M. PEZZETTI .................... 2011
1
To July 23, 2009.
xix
Oceana ......................BRADLEY G. LAMBRIX .......................... 2013
Ogemaw ....................SHANA A. LAMBOURN.......................... 2013
Ontonagon ................JOSEPH D. ZELEZNIK ........................... 2013
Oscoda.......................KATHRYN JOAN ROOT ......................... 2013
Otsego .......................MICHAEL K. COOPER ........................... 2013
Ottawa ......................MARK A. FEYEN ..................................... 2013
Presque Isle..............DONALD J. McLENNAN......................... 2013
Roscommon ..............DOUGLAS C. DOSSON ........................... 2013
Saginaw.....................FAYE M. HARRISON ............................... 2015
Saginaw.....................PATRICK J. M
C
GRAW.............................. 2013
St. Clair.....................ELWOOD L. BROWN............................... 2015
St. Clair.....................JOHN TOMLINSON................................ 2013
St. Joseph .................THOMAS E. SHUMAKER....................... 2013
Sanilac.......................R. TERRY MALTBY ................................. 2013
Shiawassee................JAMES R. CLATTERBAUGH ................. 2013
Tuscola......................W. WALLACE KENT, J
R
........................... 2013
Van Buren.................FRANK D. WILLIS................................... 2013
Washtenaw................NANCY CORNELIA FRANCIS............... 2015
Washtenaw................DARLENE A. O’BRIEN ........................... 2013
Wayne........................JUNE E. BLACKWELL-HATCHER ....... 2013
Wayne........................FREDDIE G. BURTON, J
R
. ..................... 2013
Wayne........................JUDY A. HARTSFIELD........................... 2015
Wayne........................MILTON L. MACK, J
R
. ............................ 2011
Wayne........................CATHIE B. MAHER................................. 2011
Wayne........................MARTIN T. MAHER................................. 2015
Wayne........................DAVID J. SZYMANSKI ............................ 2015
Wayne........................FRANK S. SZYMANSKI .......................... 2013
Wexford .....................KENNETH L. TACOMA.......................... 2013
xx
JUDICIAL CIRCUITS
County Seat Circuit
Alcona....................Harrisville ......... 26
Alger......................Munising ........... 11
Allegan ..................Allegan............... 48
Alpena ...................Alpena................ 26
Antrim...................Bellaire .............. 13
Arenac ...................Standish ............ 34
Baraga ...................L’Anse................ 12
Barry .....................Hastings ............ 5
Bay.........................Bay City............. 18
Benzie....................Beulah ............... 19
Berrien ..................St. Joseph.......... 2
Branch...................Coldwater .......... 15
Calhoun.................Marshall, Battle
Creek................ 37
Cass .......................Cassopolis.......... 43
Charlevoix.............Charlevoix ......... 33
Cheboygan ............Cheboygan......... 53
Chippewa ..............Sault Ste. Marie. 50
Clare......................Harrison ............ 55
Clinton ..................St. Johns............ 29
Crawford ...............Grayling............. 46
Delta......................Escanaba ........... 47
Dickinson ..............Iron Mountain .. 41
Eaton.....................Charlotte ........... 5
Emmet ...................Petoskey ............ 33
Genesee .................Flint................... 7
Gladwin.................Gladwin ............. 55
Gogebic..................Bessemer ........... 32
Grand Traverse ....Traverse City .... 13
Gratiot...................Ithaca................. 29
Hillsdale ................Hillsdale ............ 1
Houghton ..............Houghton .......... 12
Huron....................Bad Axe ............. 52
Ingham..................Mason, Lansing. 30
Ionia ......................Ionia................... 8
Iosco ......................Tawas City ........ 23
Iron........................Crystal Falls ...... 41
Isabella..................Mount Pleasant. 21
Jackson..................Jackson.............. 4
Kalamazoo ............Kalamazoo......... 9
Kalkaska ...............Kalkaska............ 46
Kent.......................Grand Rapids.... 17
Keweenaw.............Eagle River........ 12
County Seat Circuit
Lake ................Baldwin ................. 51
Lapeer.............Lapeer ................... 40
Leelanau .........Leland ................... 13
Lenawee..........Adrian ................... 39
Livingston.......Howell ................... 44
Luce.................Newberry .............. 11
Mackinac.........St. Ignace .............. 50
Macomb...........Mount Clemens .... 16
Manistee .........Manistee................ 19
Marquette.......Marquette ............. 25
Mason..............Ludington ............. 51
Mecosta...........Big Rapids............. 49
Menominee .....Menominee ........... 41
Midland...........Midland................. 42
Missaukee .......Lake City .............. 28
Monroe............Monroe .................. 38
Montcalm........Stanton.................. 8
Montmorency .Atlanta .................. 26
Muskegon .......Muskegon.............. 14
Newaygo .........White Cloud.......... 27
Oakland ..........Pontiac .................. 6
Oceana ............Hart....................... 27
Ogemaw ..........West Branch.......... 34
Ontonagon......Ontonagon ............ 32
Osceola............Reed City .............. 49
Oscoda.............Mio......................... 23
Otsego .............Gaylord.................. 46
Ottawa ............Grand Haven ........ 20
Presque Isle....Rogers City ........... 26
Roscommon ....Roscommon........... 34
Saginaw...........Saginaw................. 10
St. Clair ..........Port Huron ........... 31
St. Joseph .......Centreville............. 45
Sanilac.............Sandusky ............... 24
Schoolcraft......Manistique ............ 11
Shiawassee......Corunna ................ 35
Tuscola............Caro....................... 54
Van Buren.......Paw Paw................ 36
Washtenaw......Ann Arbor............. 22
Wayne..............Detroit................... 3
Wexford...........Cadillac .................. 28
xxi
TABLE OF CASES REPORTED
(Lines set in small type refer to actions on application for leave
to appeal starting at page 851, and to
special orders in other matters starting at page 1201.)
P
AGE
A
Adams, People v ..................................................................... 873
Allied Prop & Cas Ins Co v Michigan Catastrophic
Claims Ass’n ...................................................................... 873
Allstate Ins Co, Pernell v ...................................................... 852
Anderson, People v ................................................................ 871
Ansara Restaurant Group, Inc, Smith v ............................. 851
Atkins, People v ..................................................................... 870
Atlantic Nat’l Trust, LLC v Midwest Machine
Technologies, LLC ............................................................ 863
Attorney General, Parker v .................................................. 873
Attorney Grievance Comm, Canty v .................................... 1213
Attorney Grievance Comm, Easley v ................................... 1213
AuSable Valley Community Mental Health Services,
Bricker v ............................................................................ 869
Auxier v Nationwide Prop & Cas Ins Co ............................ 869
B
Bal, People v .......................................................................... 864
Barnes, People v .................................................................... 873
Bateson, Scio Twp v .............................................................. 869
Baumgard v Farmers Ins Exch ............................................ 872
Bednarz Trust, In re (Smigielski v Glanty) ........................ 872
Betanzos, Fitzpatrick v ......................................................... 872
Betts, People v ....................................................................... 869
xxiii
P
AGE
Biskner, People v ................................................................... 863
Blackshere, People v .............................................................. 872
Boling, People v ..................................................................... 865
Bondie, People v .................................................................... 870
Bonner, People v .................................................................... 871
Borges, People v ..................................................................... 873
Bowman, People v ................................................................. 865
Boyle, People v ....................................................................... 873
Bradford, People v ................................................................. 865
Bricker v AuSable Valley Community Mental Health
Services .............................................................................. 869
Brooks, People v .................................................................... 868
Brown v Dep’t of Corrections ............................................... 870
Bryant, People v .................................................................... 873
Bush v Shabahang ............................................... 156
C
Cadotte, People v ................................................................... 865
Canty v Attorney Grievance Comm ..................................... 1213
Carico, People v ..................................................................... 869
Carpenter, People v ............................................................... 871
Carter, People v ..................................................................... 863
Charles, People v ................................................................... 872
Charlevoix Co, McNeil v ..................................... 69
Chrysler LLC, Dixon v .......................................................... 863
Clark, People v (Albert) ........................................................ 868
Clark, People v (Michael) ...................................................... 864
Clayton, People v ................................................................... 868
Clemence v Dep’t of Labor & Economic Growth ............... 869
Collins, People v .................................................................... 873
Cooley, People v ..................................................................... 864
Corrections (Dep’t of), Brown v ........................................... 870
Corrections (Dep’t of), Hawkins v ....................................... 871
Corrections (Dep’t of), Jones v ............................................. 869
Corrections (Dep’t of), LaFountain v ................................... 866
Court of Appeals, Schock v ................................................... 1208
Cowles, Verardi v ................................................................... 872
Cross, People v (Leonard) ..................................................... 868
xxiv 484 M
ICH
R
EPORTS
P
AGE
Cross, People v (Roderick) .................................................... 872
D
DaimlerChrysler Corp, Lindsey v ........................................ 873
Davis, People v (Orlando) ..................................................... 872
Davis, People v (Stanley) ...................................................... 867
Delphi Corp, Warren v .......................................................... 871
Dennis, People v .................................................................... 868
Dep’t of Corrections, Brown v .............................................. 870
Dep’t of Corrections, Hawkins v .......................................... 871
Dep’t of Corrections, Jones v ............................................... 869
Dep’t of Corrections, LaFountain v ..................................... 866
Dep’t of Human Resources v Smith (In re Williams) ........ 851
Dep’t of Human Services v Tavorn (In re Tavorn) ............ 873
Dep’t of Human Services v Wellons (In re Wellons) ........... 852
Dep’t of Labor & Economic Growth, Clemence v .............. 869
Dep’t of Treasury, Manske v ................................................ 869
Desmyther, People v .............................................................. 864
Dixon v Chrysler LLC ........................................................... 863
Doss v Doss (In re Estate of Doss) .......................................869 869
Doss, In re Estate of Doss (Doss v Doss) ............................ 869
Dow Chemical Co, Henry v ................................. 483
Dowdy, People v ..................................................................... 855
Duckett, People v ................................................................... 863
Dufresne, People v ................................................................. 873
Dunbar, People v .................................................................... 871
Dye, People v ......................................................................... 870
E
Eagle, People v ....................................................................... 871
Easley v Attorney Grievance Comm .................................... 1213
Eckford, People v ................................................................... 874
Edwards, People v ................................................................. 867
Engel Mgt Co, Inc v Ford Motor Credit Co ......................... 869
F
Farm Bureau Gen Ins Co, Fenton v .................................... 872
Farm Bureau Ins Co v Grange Ins Co ................................. 872
T
ABLE OF
C
ASES
R
EPORTED
xxv
P
AGE
Farmers Ins Exch, Baumgard v ........................................... 872
Fenton v Farm Bureau Gen Ins Co ..................................... 872
Figueroa, People v ................................................................. 872
Fitzpatrick v Betanzos .......................................................... 872
Flowers, People v ................................................................... 866
Ford, People v ........................................................................ 868
Ford Motor Credit Co, Engel Mgt Co, Inc v ........................ 869
Futernick, Green Tree Servicing, LLC v ............................. 869
G
Gallardo, People v .................................................................. 870
Gamble, People v ................................................................... 873
Gates, People v (Anthony) .................................................... 870
Gates, People v (Omar) ......................................................... 864
Gee, People v .......................................................................... 869
Genesee Foods Services, Inc v Meadowbrook, Inc .............. 855
Giles, People v ........................................................................ 863
Glanty, Smigielski v (In re Bednarz Trust) ......................... 872
Glover v Pontiac Housing Comm ......................................... 870
Gomez, People v .................................................................... 870
Grange Ins Co, Farm Bureau Ins Co v ................................ 872
Gray, People v ........................................................................ 865
Green, People v ...................................................................... 869
Green Estate, Jackson v ..................................... 209
Green Tree Servicing, LLC v Futernick .............................. 869
Griffin, People v ..................................................................... 863
Grimm & Kornak, Harkness v ............................................. 871
Guebara, People v .................................................................. 870
H
Hall, People v (Edwin) .......................................................... 871
Hall, People v (William) ........................................................ 873
Hamtramck, Kapustij v ......................................................... 872
Hann, People v ....................................................................... 865
Hanson, People v ................................................................... 870
Harkness v Grimm & Kornak .............................................. 871
Harriger, People v .................................................................. 868
Harris, People v (Antonio) .................................................... 871
Harris, People v (Kevin) ....................................................... 872
xxvi 484 M
ICH
R
EPORTS
P
AGE
Hartford Ins Co of the Midwest v Michigan
Catastrophic Claims Ass’n (On Rehearing) ... 1
Hartford Ins Co of the Midwest v Michigan Catastrophic
Claims Ass’n ...................................................................... 45
Harvard Engineering & Constr, New Ctr Plumbing &
Heating, Inc v ................................................................... 872
Hatten, People v .................................................................... 873
Hawkins v Dep’t of Corrections ........................................... 871
Hay, People v .......................................................................... 866
Helmuth, Straub v (In re KCS) ............................................ 851
Henderson, People v (Jobey) ................................................ 865
Henderson, People v (Marquest) .......................................... 871
Henry v Dow Chemical Co .................................. 483
Howard, People v (Christopher) ........................................... 865
Howard, People v (Gerald) .................................................... 864
Hubbard, People v ................................................................. 869
Hudson, People v ................................................................... 868
Human Resources (Dep’t of) v Smith (In re Williams) ...... 851
Human Services (Dep’t of) v Tavorn (In re Tavorn) .......... 873
Human Services (Dep’t of) v Wellons (In re Wellons) ........ 852
Hunter v Hunter ................................................. 247
I
Idziak, People v .................................................... 549
In re Bednarz Trust (Smigielski v Glanty) ......................... 872
In re Estate of Doss (Doss v Doss) ....................................... 869
In re KCS (Straub v Helmuth) ............................................. 851
In re Reinstatement Petition of Mack ................................. 869
In re Servaas ........................................................ 634
In re Tavorn (Dep’t of Human Services v Tavorn) ............ 873
In re Ward Revocable Trust (Ward-Tenbroeke v
MacKenzie’s Animal Sanctuary, Inc) .............................. 872
In re Wellons (Dep’t of Human Services v Wellons) ........... 852
In re Williams (Dep’t of Human Resources v Smith) ........ 851
Ingham Circuit Judge, Mitchell v ........................................ 869
Irwin, People v ....................................................................... 867
Ivanova, People v ................................................................... 866
Iverson, People v ................................................................... 870
T
ABLE OF
C
ASES
R
EPORTED
xxvii
P
AGE
J
Jackson v Green Estate ...................................... 209
Jefferson, People v ................................................................. 871
Jenkins, People v ................................................................... 868
Johnson, People v .................................................................. 864
Jones v Dep’t of Corrections ................................................ 869
Jones, People v (Anthony) .................................................... 873
Jones, People v (Lance) ......................................................... 870
Jones, People v (Nathan) ...................................................... 864
Justice, People v .................................................................... 867
K
KCS, In re (Straub v Helmuth) ............................................ 851
Kapustij v Hamtramck .......................................................... 872
Kasle Steel Corp, Townsend v .............................................. 870
Kaufman, People v ................................................................ 872
Kilmer, People v ..................................................................... 871
King, People v ........................................................................ 874
Kinsey, People v ..................................................................... 869
Kint, People v ........................................................................ 866
L
Labor & Economic Growth (Dep’t of), Clemence v ............ 869
LaFountain v Dep’t of Corrections ...................................... 866
Lambeth, People v ................................................................. 868
LaRock, People v ................................................................... 872
Latimer, People v ................................................................... 872
Laverne, People v .................................................................. 870
Le, People v ............................................................................ 873
Legrone, People v .................................................................. 865
Lewis, People v (Alex) ........................................................... 864
Lewis, People v (Ronald) ....................................................... 870
Lewis, People v (Timothy) .................................................... 864
Lindsey v DaimlerChrysler Corp ......................................... 873
Littleton, People v ................................................................. 865
Livonia Family Physicians, PC, Von Arx v .......................... 851
Locklear, People v .................................................................. 868
Lovejoy, People v .................................................................... 864
xxviii 484 M
ICH
R
EPORTS
P
AGE
Lowe, People v ..................................................... 718
M
Maben, People v ..................................................................... 866
MacKenzie’s Animal Sanctuary, Inc, Ward-Tenbroeke v
(In re Ward Revocable Trust) .......................................... 872
Magee, People v ..................................................................... 869
Magna Corp, Petersen v ...................................... 300
Manske v Dep’t of Treasury ................................................. 869
McAlister, People v ................................................................ 871
McClinton, People v .............................................................. 872
McConnell, People v .............................................................. 863
McGee, People v ..................................................................... 871
McGraw, People v ................................................ 120
McLeary, Potter v ................................................ 397
McNamee, People v ............................................................... 873
McNeil v Charlevoix Co ...................................... 69
McQuirter, People v ............................................................... 868
Meadowbrook, Inc, Genesee Foods Services, Inc v ............. 855
Meisner & Assoc, PC v Stamper & Co ................................ 870
Merchant, Rodriguez v .......................................................... 870
Michigan Ass’n of Police, Pontiac v ..................................... 869
Michigan Catastrophic Claims Ass’n, Allied Prop & Cas
Ins Co v ............................................................................. 873
Michigan Catastrophic Claims Ass’n, Hartford
Ins Co of the Midwest v (On Rehearing) ....... 1
Michigan Catastrophic Claims Ass’n, Hartford Ins Co of
the Midwest v ................................................................... 45
Michigan Catastrophic Claims Ass’n, United
States Fidelity & Guaranty Co v (On
Rehearing) ........................................................ 1
Michigan Catastrophic Claims Ass’n, United States
Fidelity & Guaranty Co v ................................................ 45
Midgett, People v ................................................................... 866
Midwest Machine Technologies, LLC, Atlantic Nat’l
Trust, LLC v ..................................................................... 863
Miller, People v (Cortland) .................................................... 874
T
ABLE OF
C
ASES
R
EPORTED
xxix
P
AGE
Miller, People v (Deshon) ...................................................... 870
Miller, People v (Veronica) .................................................... 873
Mitchell v Ingham Circuit Judge ......................................... 869
Montmorency Co, Wulfen v .................................................. 871
Moore, People v (James) ....................................................... 864
Moore, People v (Michael) .................................................... 865
Motley, People v ..................................................................... 870
Mott, People v ........................................................................ 870
Munlin, People v .................................................................... 874
Murphy, People v ................................................................... 869
Murray, People v .................................................................... 869
Myers, People v ...................................................................... 867
N
Nationwide Prop & Cas Ins Co, Auxier v ........................... 869
Neely, People v ....................................................................... 867
New Ctr Plumbing & Heating, Inc v Harvard
Engineering & Constr ...................................................... 872
O
O’Brien, People v ................................................................... 870
Officer Sitarski, Reed v ......................................................... 872
P
Pace, People v ........................................................................ 867
Pannell, People v ................................................................... 863
Parker v Attorney General ................................................... 873
Parole Bd, People v ................................................................ 870
Patterson, People v ................................................................ 869
People v Adams ...................................................................... 873
People v Anderson ................................................................. 871
People v Atkins ...................................................................... 870
People v Bal ........................................................................... 864
People v Barnes ..................................................................... 873
People v Betts ........................................................................ 869
People v Biskner .................................................................... 863
People v Blackshere ............................................................... 872
People v Boling ...................................................................... 865
xxx 484 M
ICH
R
EPORTS
P
AGE
People v Bondie ..................................................................... 870
People v Bonner ..................................................................... 871
People v Borges ...................................................................... 873
People v Bowman .................................................................. 865
People v Boyle ........................................................................ 873
People v Bradford .................................................................. 865
People v Brooks ..................................................................... 868
People v Bryant ..................................................................... 873
People v Cadotte .................................................................... 865
People v Carico ...................................................................... 869
People v Carpenter ................................................................ 871
People v Carter ...................................................................... 863
People v Charles .................................................................... 872
People v Clark (Albert) ......................................................... 868
People v Clark (Michael) ....................................................... 864
People v Clayton .................................................................... 868
People v Collins ..................................................................... 873
People v Cooley ...................................................................... 864
People v Cross (Leonard) ...................................................... 868
People v Cross (Roderick) ..................................................... 872
People v Davis (Orlando) ...................................................... 872
People v Davis (Stanley) ....................................................... 867
People v Dennis ..................................................................... 868
People v Desmyther ............................................................... 864
People v Dowdy ...................................................................... 855
People v Duckett .................................................................... 863
People v Dufresne .................................................................. 873
People v Dunbar .................................................................... 871
People v Dye .......................................................................... 870
People v Eagle ........................................................................ 871
People v Eckford .................................................................... 874
People v Edwards .................................................................. 867
People v Figueroa .................................................................. 872
People v Flowers .................................................................... 866
People v Ford ......................................................................... 868
People v Gallardo ................................................................... 870
People v Gamble .................................................................... 873
People v Gates (Anthony)
People v Gates (Omar) .......................................................... 864
T
ABLE OF
C
ASES
R
EPORTED
xxxi
P
AGE
People v Gee ........................................................................... 869
People v Giles ......................................................................... 863
People v Gomez ..................................................................... 870
People v Gray ......................................................................... 865
People v Green ....................................................................... 869
People v Griffin ...................................................................... 863
People v Guebara ................................................................... 870
People v Hall (Edwin) ........................................................... 871
People v Hall (William) ......................................................... 873
People v Hann ........................................................................ 865
People v Hanson .................................................................... 870
People v Harriger .................................................................. 868
People v Harris (Antonio) ..................................................... 871
People v Harris (Kevin) ........................................................ 872
People v Hatten ..................................................................... 873
People v Hay .......................................................................... 866
People v Henderson (Jobey) ................................................. 865
People v Henderson (Marquest) ........................................... 871
People v Howard (Christopher) ............................................ 865
People v Howard (Gerald) ..................................................... 864
People v Hubbard .................................................................. 869
People v Hudson .................................................................... 868
People v Idziak ..................................................... 549
People v Irwin ........................................................................ 867
People v Ivanova .................................................................... 866
People v Iverson .................................................................... 870
People v Jefferson .................................................................. 871
People v Jenkins .................................................................... 868
People v Johnson ................................................................... 864
People v Jones (Anthony) ..................................................... 873
People v Jones (Lance) .......................................................... 870
People v Jones (Nathan) ....................................................... 864
People v Justice ..................................................................... 867
People v Kaufman ................................................................. 872
People v Kilmer ..................................................................... 871
People v King ......................................................................... 874
People v Kinsey ...................................................................... 869
People v Kint ......................................................................... 866
People v Lambeth .................................................................. 868
xxxii 484 M
ICH
R
EPORTS
P
AGE
People v LaRock .................................................................... 872
People v Latimer ................................................................... 872
People v Laverne ................................................................... 870
People v Le ............................................................................. 873
People v Legrone ................................................................... 865
People v Lewis (Alex) ............................................................ 864
People v Lewis (Ronald) ........................................................ 870
People v Lewis (Timothy) ..................................................... 864
People v Littleton .................................................................. 865
People v Locklear .................................................................. 868
People v Lovejoy .................................................................... 864
People v Lowe ...................................................... 718
People v Maben ...................................................................... 866
People v Magee ...................................................................... 869
People v McAlister ................................................................. 871
People v McClinton ............................................................... 872
People v McConnell ............................................................... 863
People v McGee ...................................................................... 871
People v McGraw ................................................. 120
People v McNamee ................................................................ 873
People v McQuirter ............................................................... 868
People v Midgett .................................................................... 866
People v Miller (Cortland) .................................................... 874
People v Miller (Deshon) ....................................................... 870
People v Miller (Veronica) ..................................................... 873
People v Moore (James) ........................................................ 864
People v Moore (Michael) ..................................................... 865
People v Motley ..................................................................... 870
People v Mott ......................................................................... 870
People v Munlin ..................................................................... 874
People v Murphy .................................................................... 869
People v Murray .................................................................... 869
People v Myers ....................................................................... 867
People v Neely ....................................................................... 867
People v O’Brien .................................................................... 870
People v Pace ......................................................................... 867
People v Pannell .................................................................... 863
People v Parole Bd ................................................................. 870
People v Patterson ................................................................. 869
T
ABLE OF
C
ASES
R
EPORTED
xxxiii
P
AGE
People v Perreo ...................................................................... 872
People v Perry ........................................................................ 866
People v Phillips .................................................................... 872
People v Pillars ...................................................................... 871
People v Portis ....................................................................... 866
People v Reed ......................................................................... 870
People v Richardson .............................................................. 865
People v Riddle ...................................................................... 866
People v Rodriguez ................................................................ 872
People v Ryder ....................................................................... 867
People v Schimke ................................................................... 869
People v Scott ........................................................................ 868
People v Severe ...................................................................... 866
People v Sharp ....................................................................... 867
People v Shawver ................................................................... 866
People v Siebert ..................................................................... 867
People v Smith ....................................................................... 865
People v St Onge ................................................................... 871
People v Stamps ..................................................................... 867
People v Stanley .................................................................... 870
People v Strawther ................................................................ 871
People v Swain ....................................................................... 866
People v Taylor ...................................................................... 866
People v Terrell ...................................................................... 863
People v Thomas .................................................................... 864
People v Thompson ............................................................... 868
People v Trice ........................................................................ 863
People v Tyler ........................................................................ 865
People v Vary ......................................................................... 867
People v Virden ...................................................................... 870
People v Waters ..................................................................... 868
People v Watts ....................................................................... 868
People v Wells ........................................................................ 865
People v Westbrook ............................................................... 870
People v Westerfield .............................................................. 867
People v White ....................................................................... 866
People v Wiggins .................................................................... 871
People v Williams .................................................................. 874
People v Windless .................................................................. 872
xxxiv 484 M
ICH
R
EPORTS
P
AGE
People v Wingeart .................................................................. 864
People v Woods ...................................................................... 867
People v Young ....................................................................... 864
People v Ziegler ..................................................................... 868
Pernell v Allstate Ins Co ....................................................... 852
Perreo, People v ..................................................................... 872
Perry, People v ....................................................................... 866
Petersen v Magna Corp ....................................... 300
Phillip v State Farm Mut Automobile Ins Co ..................... 873
Phillips, People v ................................................................... 872
Pillars, People v ..................................................................... 871
Pontiac v Michigan Ass’n of Police ...................................... 869
Pontiac Housing Comm, Glover v ........................................ 870
Portis, People v ...................................................................... 866
Potter v McLeary ................................................. 397
Prodinger, Symons v ............................................................. 851
Prodinger, Symons v ............................................................. 851
Progressive Michigan Ins Co, Stanny v ............................... 866
R
Reed v Officer Sitarski .......................................................... 872
Reed, People v ........................................................................ 870
Reinstatement Petition of Mack, In re ................................ 869
Richardson, People v ............................................................. 865
Riddle, People v ..................................................................... 866
Rodriguez v Merchant ........................................................... 870
Rodriguez, People v ............................................................... 872
Ryder, People v ....................................................................... 867
S
Salem Springs, LLC, Salem Twp v ...................................... 851
Salem Twp v Salem Springs, LLC ....................................... 851
Schimke, People v .................................................................. 869
Schmidt Industries, Inc, Shelson v ...................................... 871
Schock v Court of Appeals .................................................... 1208
Scio Twp v Bateson ............................................................... 869
Scott, People v ....................................................................... 868
Servaas, In re ....................................................... 634
Severe, People v ..................................................................... 866
T
ABLE OF
C
ASES
R
EPORTED
xxxv
P
AGE
Shabahang, Bush v .............................................. 156
Sharp, People v ...................................................................... 867
Shawver, People v .................................................................. 866
Shelson v Schmidt Industries, Inc ....................................... 871
Siebert, People v .................................................................... 867
Smigielski v Glanty (In re Bednarz Trust) ......................... 872
Smith v Ansara Restaurant Group, Inc .............................. 851
Smith, Dep’t of Human Resources v (In re Williams) ....... 851
Smith, People v ...................................................................... 865
St Onge, People v .................................................................. 871
Stamper & Co, Meisner & Assoc, PC v ............................... 870
Stamps, People v .................................................................... 867
Stanley, People v .................................................................... 870
Stanny v Progressive Michigan Ins Co ................................ 866
State Farm Mut Automobile Ins Co, Phillip v .................... 873
Straub v Helmuth (In re KCS) ............................................. 851
Strawther, People v ............................................................... 871
Swain, People v ...................................................................... 866
Symons v Prodinger .............................................................. 851
Symons v Prodinger .............................................................. 851
Syrowatka v Washtenaw Co ................................................. 870
T
Tavorn, Dep’t of Human Services v (In re Tavorn) ........... 873
Tavorn, In re (Dep’t of Human Services v Tavorn) ........... 873
Taylor, People v ...................................................................... 866
Terrell, People v ..................................................................... 863
Thomas, People v ................................................................... 864
Thompson, People v .............................................................. 868
Titan Ins Co, Univ of Michigan Regents v ......................... 852
Townsend v Kasle Steel Corp ............................................... 870
Treasury (Dep’t of), Manske v ............................................. 869
Trice, People v ....................................................................... 863
Tyler, People v ....................................................................... 865
U
United States Fidelity & Guaranty Co v
Michigan Catastrophic Claims Ass’n (On
Rehearing) ............................................................. 1
xxxvi 484 M
ICH
R
EPORTS
P
AGE
United States Fidelity & Guaranty Co v Michigan
Catastrophic Claims Ass’n ............................................... 45
Univ of Michigan Regents v Titan Ins Co .......................... 852
V
Vary, People v ......................................................................... 867
Verardi v Cowles .................................................................... 872
Virden, People v ..................................................................... 870
Von Arx v Livonia Family Physicians, PC ........................... 851
W
Ward, In re (Ward-Tenbroeke v MacKenzie’s Animal
Sanctuary, Inc) .................................................................. 872
Ward-Tenbroeke v MacKenzie’s Animal Sanctuary, Inc
(In re Ward Revocable Trust) .......................................... 872
Warren v Delphi Corp ........................................................... 871
Washtenaw Co, Syrowatka v ................................................ 870
Waters, People v .................................................................... 868
Watts, People v ...................................................................... 868
Wellons, Dep’t of Human Services v (In re Wellons) .......... 852
Wellons, In re (Dep’t of Human Services v Wellons) .......... 852
Wells, People v ....................................................................... 865
Westbrook, People v .............................................................. 870
Westerfield, People v ............................................................. 867
White, People v ...................................................................... 866
Wiggins, People v ................................................................... 871
Williams, In re (Dep’t of Human Resources v Smith) ....... 851
Williams, People v ................................................................. 874
Windless, People v ................................................................. 872
Wingeart, People v ................................................................. 864
Woods, People v ..................................................................... 867
Wulfen v Montmorency Co ................................................... 871
Y
Young, People v ...................................................................... 864
Z
Ziegler, People v ..................................................................... 868
T
ABLE OF
C
ASES
R
EPORTED
xxxvii
TABLE OF SPECIAL ORDERS
NOT RELATED TO CASES
P
AGE
P
ROPOSAL TO
E
STABLISH AND
R
EQUIRE
C
OMPLIANCE WITH
C
OURT
C
OLLECTIONS
P
ROGRAM AND
R
EPORTING
R
EQUIREMENTS
..............1201
P
ROPOSED
A
MENDMENTS OF
M
ICHIGAN
C
OURT
R
ULES
MCR 6.201 ...........................................................................1211
MCR 6.425 ..........................................................................1213
MCR 6.610 ..........................................................................1214
MCR 7.101 ...........................................................................1207
MCR 7.105 ...........................................................................1207
xxxviii
TABLE OF ADMINISTRATIVE ORDERS
AND RULES ADOPTED
A
DMINISTRATIVE
O
RDERS
No. 2009-5.......................................................................................... xl
xxxix
ADMINISTRATIVE ORDER
No. 2009-5
E
-FILING
P
ILOT
P
ROJECT IN THE
56
TH
C
IRCUIT
C
OURT
(E
ATON
C
OUNTY
)
Entered July 21, 2009 (File No. 2002-37)—R
EPORTER
.
On order of the Court, the 56th Circuit Court is
authorized to implement an Electronic Document Fil-
ing Project. The pilot project is established to study the
effectiveness of electronically filing court documents in
lieu of traditional paper filings. The pilot project shall
begin as soon as possible after approval by the Court,
and shall remain in effect until July 1, 2011, or further
order of this Court. The 56th Circuit Court is aware
that rules regarding electronic filing have been pub-
lished for comment by this Court. If this Court adopts
electronic-filing rules during the pendency of the 56th
Circuit Electronic Document Filing Pilot Project, the
56th Circuit Court will, within 60 days of the effective
date of the rules, comply with the requirements of those
rules.
The 56th Circuit Court will track the participation
and effectiveness of this pilot program and shall report
to, and make such findings available to, the Michigan
Supreme Court.
1. Construction
The purpose of the pilot program is to study the
effectiveness of electronically filing court documents in
xl
connection with the just, speedy, and economical deter-
mination of the actions involved in the pilot program.
The 56th Circuit Court may exercise its discretion to
grant necessary relief to avoid the consequences of error
so as not to affect the substantial rights of the parties.
Except for matters related to electronically filing docu-
ments during the pilot program, the Michigan Court
Rules govern all other aspects of the cases involved in
the pilot program.
2. Definitions
a. “Clerk” means the Eaton County Clerk.
b. “E-filing” means any court pleading, motion,
brief, response, list, order, judgment, notice, or other
document filed electronically pursuant to the pilot
program.
c. “LAO” means all local administrative orders gov-
erning the 56th Judicial Circuit Court.
d. “MCR” means Michigan Court Rules.
e. “Pilot program” means the initiative by the 56th
Judicial Circuit Court, the Eaton County Clerk, the
Eaton County Department of Information Services, and
the Judicial Information Systems division of the State
Court Administrative Office in conjunction with Wiz-
net, Inc. This e-filing application facilitates the elec-
tronic filing of pleadings, motions, briefs, responses,
lists, orders, judgments, notices, and other documents.
The Eaton County pilot program will begin testing with
“C,” “N,” and circuit court domestic cases wherein the
case suffix begins with a “D.” The court intends this
pilot program to include all circuit and family division
judges, including the probate judge sitting by assign-
ment in the family division of the circuit court. A judge
may exempt a case or cases from the pilot program. The
pilot program is expected to last approximately two
years.
A
DM
O
RDER
N
O
. 2009-5 xli
f. “Technical malfunction” means any hardware,
software, or other malfunction that prevents a user
from timely filing a complete e-filing or sending or
receiving service of an e-filing.
g. “Filing Party” means any party or attorney rep-
resenting a party who has registered to file pleadings or
papers electronically in a particular matter.
3. Participation in the Pilot Program
a. Participation by parties and counsel in the pilot
program will initially be voluntary to accommodate
training. Commencing on a date certain to be set by the
court approximately 90 days following the launch of the
pilot program, all attorneys filing a new “DO” case shall
be required to file all pleadings and papers therein
electronically. On a date certain to be set by the court
approximately 180 days following the initiation of man-
datory “DO” filings, attorneys filing a new “DM” case
shall be required to file all pleadings and papers therein
electronically. Approximately 180 days following the
initiation of mandatory “DM” filings, all attorneys
filing a new civil case in circuit court wherein the suffix
of the case starts with a “C” or an “N,” and in all newly
filed domestic matters not already required to be filed
electronically wherein the suffix starts with a “D,” all
pleadings and papers filed therein shall be required to
file electronically. Mandatory filings in an identified
case type shall also include newly filed domestic post-
disposition proceedings.
b. Parties not represented by counsel may voluntar-
ily participate in the pilot program. An unrepresented
party who initially chooses to voluntarily participate in
this pilot program may withdraw from the program at
any time by filing a hard copy of a paper or pleading
pursuant to the Michigan Court Rules, at which time
xlii 484 M
ICHIGAN
R
EPORTS
the Clerk shall create a paper file and maintain the
paper file as outlined in § 4(d).
c. Pursuant to the schedule outlined in § 3(a), it is
presumed that all documents will be filed electronically.
However, the Court recognizes that circumstances may
arise that would prevent an attorney or participating
party from filing a document or documents electroni-
cally. To ensure that all parties retain access to the
courts, parties that demonstrate good cause will be
permitted to file a hard copy of their documents with
the clerk, at which time the Clerk shall create a paper
file and maintain the paper file as outlined in § 4(d).
d. A public access terminal will be available at the
Eaton County Courthouse for those persons wishing to
participate in the pilot program or to review electroni-
cally filed documents but without sufficient equipment
to facilitate participation. The electronic filing system
utilized for this pilot program limits access to those
person who are parties in a matter to case files in which
they have registered as a filing party. Those not a party
to the case may access the case file by making a request
to the Circuit Court Clerk, where proper protocol with
regard to access to public and non-public files will be
followed. Electronically retained documents may be
printed and presented to the requester. A customary
copy fee may be applied if the requestor seeks to retain
the provided copy.
4. E-filings Submission, Acceptance, and Time of
Service with the Court; Signature
a. In an effort to facilitate uniform service within the
scope of this program, the 56th Circuit Court strongly
recommends electronic service.
b. Program participants must submit e-filings pur-
suant to these rules and the pilot program’s technical
requirements. The clerk may, in accordance with MCR
A
DM
O
RDER
N
O
. 2009-5 xliii
8.119(C) reject documents submitted for filing that do
not comply with MCR 2.113(C)(1), are not accompanied
by the proper fees, do not conform to the technical
requirements of this pilot program, or are otherwise
submitted in violation of a statute, MCR, LAO, or
program rules.
c. E-filings may be submitted to the court at any
time, but shall only be reviewed and accepted for filing
by the Eaton County Clerk’s Office during normal
business hours of 8:00 a.m. to 5:00 p.m. E-filings
received by the clerk’s office before midnight will be
granted that day’s date for filing purposes. For purposes
of determining e-filing receipt time, the receipt time
reflected on the clerk’s computer will serve as the
official time of receipt.
d. In any mandatory case, as outlined in § 3(a),
wherein all parties are represented by counsel, and
subject to § 3(c), the court shall create and maintain
only an electronic file. In those instances where a party
is originally represented by counsel who subsequently
withdraws and the party desires to continue in pro per
without participating in this pilot program, a paper file
shall be created by the clerk with a notice that the file
was originally created electronically, and any docu-
ments filed before the creation of the paper file will be
maintained electronically. Subsequent electronically
filed documents will be retained in electronic format
and only the verification of receipt of an electronically
filed document will be placed into the paper file. If the
pro per litigant wishes to participate in the pilot pro-
gram, the clerk shall maintain only an electronic file.
e. In any mandatory case as outlined in § 3(a)
wherein some parties are represented by counsel and
other parties are not, and at least one of those parties
not represented by counsel does not desire to voluntar-
xliv 484 M
ICHIGAN
R
EPORTS
ily participate in this pilot program, the clerk shall
create a paper file. All pleadings and papers submitted
electronically will be retained in electronic format and
only the verification of receipt of an electronically filed
document will be placed into the paper file. All paper
filing will be retained in the paper file created by the
clerk.
f. These rules apply to parties added or joined to an
existing matter. If counsel represents the new party or
parties, all papers filed by counsel must be done so in
conformity with these rules. Sections 3(b), 4(d), and
4(e) set forth the respective rights and obligations of
unrepresented parties. The clerk shall maintain its files
in conformity with these rules.
g. E-filings shall be treated as if they were hand-
delivered to the court for all purposes under statute,
MCR, and LAO.
h. A pleading, document, or instrument e-filed or
electronically served under this rule shall be deemed to
have been signed by the judge, court clerk, attorney,
party or declarant:
i. Signatures submitted electronically shall use the
following form: /s/ John L. Smith.
ii. A document that requires a signature under the
penalty of perjury is deemed signed by the declarant if,
before filing, the declarant has signed a printed form of
the document.
iii. An e-filed document that requires a signature of a
notary public is deemed signed by the notary public if,
before filing, the notary public has signed a printed
form of the document.
i. The original of a sworn or verified document that
is an e-filing (e.g., a verified pleading) or part of an
e-filing (e.g., an affidavit, notarization or bill of costs)
A
DM
O
RDER
N
O
. 2009-5 xlv
must be maintained by the filing attorney and made
available upon reasonable request of the court, the
signatory or opposing party.
j. Proposed orders shall be processed by the court in
accordance with the provisions of the pilot program.
The clerk shall present the document to the court for
review and signature pursuant to MCR 2.602(B).
k. By electronically filing the document, the elec-
tronic filer indicates compliance with these rules.
5. Time for Service and Filing of Pleadings, Documents
and Motions; Judge’s Copies; Hearings on Motions; Fees
a. All times for filing and serving e-filings shall be
governed by applicable statute, MCR, and LAO, with
the exception that e-filings received by the Clerk’s
Office before midnight will be granted that day’s date
for filing purposes, and electronic service sent before
midnight will be deemed served on that business day.
b. The electronic submission of a motion and brief
through this pilot program satisfies the requirements of
filing a judge’s copy under MCR 2.119(A)(2). Upon
request of the court, the filing party shall promptly
provide an electronic or paper judge’s copy to chambers.
c. For documents filed electronically, applicable fees,
including e-filing fees and service fees, shall be paid
electronically through procedures established by the
Eaton County Clerk’s Office at the same time and in the
same amount as required by statute, court rule, or
administrative order.
i. Each e-filing is subject to the following e-filing fees.
Type of Filing Fee
EFO (e-filing only) $5.00
EFS (e-filing with service) $8.00
SO (service only) $5.00
xlvi 484 M
ICHIGAN
R
EPORTS
ii. Users who use credit cards for payment may also
be responsible for a user fee, as set by the Eaton County
Clerk up to a maximum of 2% of the transaction
amount.
d. User fees shall not be waived on the basis of
indigency. Indigent litigants not represented by counsel
may file hard copies of papers and pleadings.
6. Service
a. All attorneys, and parties appearing pro se, partici-
pating in this pilot program shall provide the court and
counsel, where opposing counsel is present, with one
e-mail address with the functionality required for the pilot
program. All service on opposing counsel shall originate
from and be perfected upon this e-mail address.
b. Unless otherwise agreed to by the court and the
parties, all e-filings must be served electronically to the
e-mail address of opposing counsel. The subject-matter
line for the transmittal of document served by e-mail
shall state: “Service of e-filing in case [insert caption of
case].”
c. In matters where an attorney represents a party
and the opposing side or sides are unrepresented,
service by all parties shall be by traditional means,
unless otherwise agreed to in writing.
d. The parties and the court may agree that, instead
of e-mail service, e-filings may be served to the parties
(but not the court) by facsimile or by traditional means.
For those choosing to accept facsimile service:
i. The parties shall provide the court and opposing
parties with one facsimile number with appropriate
functionality,
ii. The facsimile number shall serve as the number to
which service may be made,
A
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iii. The sender of the facsimile should obtain a
confirmation of delivery, and
iv. Parties shall comply with the requirements of
MCR 2.406 on the use of facsimile communication
equipment.
e. In mandatory situations, and those where one
chooses to voluntarily participate in the pilot program,
proof of service shall be submitted electronically to the
56th Circuit Court according to MCR 2.104 and these
rules.
7. Format and Form of E-filing and Service
a. An attorney or party may only e-file documents for
one case per transaction.
b. All e-filings shall comply with MCR 1.109 and the
technical requirements of the court’s vendor.
c. Any exhibit or attachment that is part of an e-filing
must be clearly designated and identified as an exhibit
or attachment.
d. All e-filings, subject to subsection 6(d), shall be
served on the parties in the same format and form as
submitted to the court.
8. Pleadings, Motions, and Documents not to be
E-filed
Documents to be filed under seal (pursuant to court
order) shall not be e-filed during the pilot program and
must be filed by the traditional methods provided in the
MCR. The obligation of the clerk in such an instance
shall be governed by § 4 of this administrative order.
9. Official Court Record; Certified Copies
a. For purposes of this pilot program, e-filings are the
official court record. An appellate record shall be certi-
fied in accordance with MCR 7.210(A)(1).
xlviii 484 M
ICHIGAN
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b. Certified or true copies of e-filed documents shall
be issued in the conventional manner by the Eaton
County Clerk’s Office in compliance with the Michigan
Trial Court Case File Management Standards.
c. At the conclusion of the pilot program, if the
program does not continue as a pilot project or in some
other format, the clerk shall convert all e-filings to
paper form in accordance with MCR 8.119(D)(1)(d),
unless electronic means of long-term retention is ap-
proved. Participating attorneys shall provide reason-
able assistance in constructing the paper record.
d. At the conclusion of the pilot program, if the
program continues as a pilot project or in another
format, the clerk shall provide for record retention and
public access in a manner consistent with the instruc-
tions of the court and court rules.
10. Court Notices, Orders, and Judgments
At the court’s discretion, the court may issue, file,
and serve orders, judgments, and notices as e-filings.
Pursuant to stipulation and order, the parties may
agree to accept service from the court via facsimile
pursuant to the procedures set forth in Rule 6(c).
11. Technical Malfunctions
a. A party experiencing a technical malfunction with
the party’s equipment (such as PDF conversion prob-
lems or inability to access the pilot program sites),
another party’s equipment (such as an inoperable
e-mail address), or an apparent technical malfunction of
the court’s pilot program equipment, software, or
server shall use reasonable efforts to timely file or
receive service by traditional methods and shall provide
prompt notice to the court and the parties of any such
malfunction.
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b. If a technical malfunction has prevented a party
from timely filing, responding to, or otherwise perfect-
ing or receiving service of an e-filing, the affected party
may petition the 56th Circuit Court for relief. Such
petition shall contain an adequate proof of the technical
malfunction and set forth good cause for failure to use
non-electronic means to timely file or serve a document.
The court shall liberally consider proof of the technical
malfunction and use its discretion in determining
whether such relief is warranted.
12. Privacy Considerations
a. With respect to any e-filing, the following require-
ments for personal information shall apply:
i. Social Security Numbers. Full social security num-
bers shall not be included in e-filings. If an individual’s
social security number must be referenced in an
e-filing, only the last four digits of that number may be
used and the number specified in substantially the
following format: XXX-XX-1234.
ii. Names of Minor Children. Unless named as a
party, the identity of minor children shall not be in-
cluded in e-filings. If a non-party minor child must be
mentioned, only the initials of that child’s name may be
used.
iii. Dates of Birth. An individual’s full birth date shall
not be included in e-filings. If an individual’s date of
birth must be referenced in an e-filing, only the year
may be used and the date specified in substantially the
following format: XX/XX/1998.
iv. Financial Account Numbers. Full financial ac-
count numbers shall not be included in e-filings unless
required by statute, court rule, or other authority. If a
financial account number must be referenced in an
e-filing, only the last four digits of these numbers may
l 484 M
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be used and the number specified in substantially the
following format: XXXXXX1234.
v. Driver’s License Numbers and State-Issued Per-
sonal Identification Card Numbers. A person’s full
driver’s license number and state-issued personal iden-
tification number shall not be included in e-filings. If an
individual’s driver’s license number or state-issued
personal identification card number must be referenced
in an e-filing, only the last four digits of that number
should be used and the number specified in substan-
tially the following format: X-XXX-XXX-XX1-234.
vi. Home Addresses. With the exception of a self-
represented party, full home addresses shall not be
included in e-filings. If an individual’s home address
must be referenced in an e-filing, only the city and state
should be used.
b. Parties wishing to file a complete personal data
identifier listed above may:
i. Pursuant to, and in accordance with the MCR and
administrative orders, file a motion seeking the court’s
permission to file a traditional paper version of the
document under seal. The court may, in granting the
motion to file the document under seal, still require
that an e-filing that does not reveal the complete
personal data identifier be filed for the public files.
or
ii. Pursuant to and in accordance with the applicable
MCR and LAO, obtain a court order to file a traditional
paper reference list under seal. The reference list shall
contain the complete personal data identifiers and the
redacted identifiers used in the e-filing. All references
in the case to the redacted identifiers included in the
reference list shall be construed to refer to the corre-
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sponding complete personal data identifiers. The refer-
ence list must be filed under seal, and may be amended
as of right.
c. Parties should exercise caution when filing papers
that contain private or confidential information, includ-
ing, but not limited to, the information covered above
and listed below:
i. Medical records, treatment, and diagnosis;
ii. Employment history;
iii. Individual financial information;
iv. Insurance information;
v. Proprietary or trade secret information;
vi. Information regarding an individual’s cooperation
with the government; and
vii. Personal information regarding the victim of any
criminal activity.
13. Amendment
These rules may be amended upon the recommenda-
tion of the participating judges, the approval of the chief
judge, and authorization by the state court administra-
tor.
14. Expiration
Unless otherwise directed by the Michigan Supreme
Court, this pilot program, requiring parties to electroni-
cally file documents in cases assigned to participating
judges, shall continue until July 1, 2011, or further
order of the 56th Circuit Court.
lii 484 M
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UNITED STATES FIDELITY & GUARANTY COMPANY v MICHIGAN
CATASTROPHIC CLAIMS ASSOCIATION
(ON REHEARING)
HARTFORD INSURANCE COMPANY OF THE MIDWEST
v MICHIGAN CATASTROPHIC CLAIMS ASSOCIATION
(ON REHEARING)
Docket Nos. 133466 and 133468. Argued October 1, 2008 (Calendar No.
5). Decided July 21, 2009.
United States Fidelity & Guaranty Company (USF&G) and Hartford
Insurance Company of the Midwest (Hartford) filed separate
actions in the Oakland Circuit Court seeking declaratory judg-
ments that, under MCL 500.3104, the Michigan Catastrophic
Claims Association (MCCA) was required to reimburse them for
payments of personal protection insurance benefits above the
statutory threshold made to insureds who suffered catastrophic
injuries, regardless of whether the charges were reasonable. With
respect to USF&G, the court, Steven N. Andrews, J., agreed that
the MCCA was required to indemnify USF&G for the actual
amount it had paid regardless of whether the charges were
reasonable. The MCCA appealed. In the case of Hartford, the
court, Rudy J. Nichols, J., ruled that the MCCA could challenge the
reasonableness of the charges as a defense to a claim for indem-
nification, and Hartford appealed. After consolidating the cases,
the Court of Appeals, O
WENS
,P.J., and W
HITE
and H
OEKSTRA
,JJ.,
affirmed with respect to USF&G and reversed with respect to
Hartford, holding that MCL 500.3104 unambiguously requires the
MCCA to reimburse insurers for the full amount of personal
protection insurance benefits exceeding the statutory threshold
that the insurer was obligated to pay to its insured, regardless of
whether the amount was reasonable. 274 Mich App 184 (2007).
The Supreme Court granted leave to appeal. 481 Mich 862 (2008).
After hearing oral arguments, the Supreme Court held that, when
a member insurer’s policy provides coverage only for reasonable
charges, the MCCA has the authority to refuse to indemnify
unreasonable charges and that, if the policy provides broader
coverage, the MCCA must review for compliance with the broader
coverage and indemnify claims within that coverage, but it may
reject claims in excess of that coverage. 482 Mich 414 (2008). The
USF&G
V
MCCA (O
N
R
EHEARING
) 1
plaintiffs filed motions for rehearing, which the Supreme Court
granted. 483 Mich 918 (2009).
In an opinion by Justice W
EAVER
, joined by Chief Justice K
ELLY
and Justices C
AVANAGH
and H
ATHAWAY
, the Supreme Court held:
The indemnification obligation set forth in MCL 500.3104(2)
does not incorporate the reasonableness standard that MCL
500.3107 requires between claimants and member insurers. The
MCCA’s powers are limited to furthering the MCCA’s purposes,
which do not include determining the reasonableness of claims.
Accordingly, the MCCA has the power to adjust only the practices
and procedures of its member insurers, not the payment amounts
to which claimants and member insurers have agreed.
1. The interpretation of MCL 500.3104(2) requires a determina-
tion of how that provision relates to MCL 500.3107 and of how both
provisions correspond within the larger statutory scheme. MCL
500.3104(2) requires that the MCC A provide, and each member
accept, indemnification for 100 percent of the amount of ultimate loss
sustained under personal protection insurance coverages in excess of
a statutorily set amount. MCL 500.3107(1)(a), which defines “per-
sonal protection insurance benefits,” requires that all personal pro-
tection insurance benefits claimed and paid between the insurer and
the insured must be reasonable. Because the Legislature used the
term “coverages” in § 3104 and the term “benefits” in § 3107, it can
be inferred that the Legislature intended those terms to have
different meanings. Therefore, the definition of “personal protection
insurance benefits” in § 3107(1)(a) is not equivalent to the definition
of “personal protection insurance coverages” in § 3104(2).
2. The Legislature limited the exceptions to “coverages” nar-
rowly, which indicates that the term “coverages” is a broader term
than “benefits.” Because “coverages” is never given a more
restrictive definition elsewhere in the statute, the word must be
afforded its ordinary, everyday meaning. Dictionaries define “cov-
erage” as the extent of protection afforded by an insurance policy,
as protection against a risk or risks specified in an insurance
policy, as the risks within the scope of an insurance policy, and as
the amount and extent of risk covered by an insurer. The term
“coverages” in MCL 500.3104 is positioned just after “ultimate
loss,” which is defined as the actual loss amounts that a member is
obligated to pay and that are paid or payable by the member. The
obligation of the insurer is to fulfill its duty by honoring its
contractual coverages. The duty to perform the contract relates
back to the ultimate loss insofar as the ultimate loss includes
payment of the obligation, i.e., the total contracted amount.
2 484 M
ICH
1 [July
Consequently, the MCCA must reimburse the insurers for 100
percent of the ultimate loss, which reflects the amount to which
the insurer and the insured agreed, and subject to personal
protection insurance coverage. The ultimate loss specifically refers
to coverage, which is broader than benefits and is not statutorily
limited to reasonable payments.
3. The relationship between the MCCA and its members is not
subject to the reasonableness requirements of MCL 500.3107
because the MCCA is not a no-fault insurer of its member
companies and the member companies are not injured persons
entitled to no-fault indemnification. Instead, MCL 500.3104(2)
requires the MCCA to indemnify, not to insure or to reinsure, the
members for personal protection insurance payments that exceed
the statutory threshold. The MCCA has the power under MCL
500.3104(7) to protect against unreasonable payments by assess-
ing the adequacy of the procedures or practices of members that
anticipate needing indemnification before a settlement has been
reached.
4. MCL 500.3104(8)(g) grants the MCCA the limited power to
further its purpose of prompt and efficient indemnification of its
members. That power does not extend to declining to indemnify
unreasonable amounts.
Affirmed.
Justice Y
OUNG
, joined by Justice C
ORRIGAN
, dissenting, dis-
agreed with the Court’s decision to grant rehearing when only the
composition of the Court, and not the facts, arguments, or legal
rationale, had changed since the original opinion was issued. He
stated that the decision to grant rehearing under these circumstances
ignored precedent more than a century old. Consistent with the
original opinion and based on the text of MCL 500.3104(2), he would
hold that when a member insurer’s policy only provides coverage for
“reasonable charges,” the MCCA has the authority to refuse to
indemnify unreasonable charges. He dissented because the majority’s
decision was based on neither the controlling statute nor the majori-
ty’s own definitions of “coverages.” Moreover, its holding would have
the effect of giving insurers an incentive to make unreasonable
settlements and pass the enormous costs of those onto the Michigan
citizens who must purchase no-fault automobile insurance. He also
disagreed with the majority’s statement that the MCCA is statutorily
authorized to adjust a member’s practices and procedures but not
claims.
Justice M
ARKMAN
, dissenting, concurred fully with the discus-
sion in part IV of Justice Y
OUNG
’s dissenting opinion, which sets
forth an analysis supporting the conclusion that, under the text of
2009] USF&G
V
MCCA (O
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EHEARING
) 3
MCL 500.3104(2), when a member insurer’s policy only provides
coverage for “reasonable charges,” the MCCA has the authority to
refuse to indemnify “unreasonable charges.”
1. I
NSURANCE —
N
O
-F
AULT —
P
ERSONAL
P
ROTECTION
I
NSURANCE
B
ENEFITS —
C
ATASTROPHIC
C
LAIMS —
I
NDEMNIFICATION —
U
NREASONABLE
C
HARGES
.
The Michigan Catastrophic Claims Association may not refuse to
indemnify unreasonable charges for personal protection insurance
benefits because the statutory provision setting forth its indemni-
fication obligation does not contain a standard of reasonableness
(MCL 500.3104[2]).
2. I
NSURANCE —
N
O
-F
AULT —
P
ERSONAL
P
ROTECTION
I
NSURANCE
B
ENEFITS —
C
ATASTROPHIC
C
LAIMS —
I
NDEMNIFICATION —
P
OWERS OF THE
M
ICHIGAN
C
ATASTROPHIC
C
LAIMS
A
SSOCIATION
.
The statutory powers of the MCCA to adjust the practices and
procedures of member insurers do not encompass adjusting the
payment amount to which a claimant and a member insurer have
agreed (MCL 500.3104[7]).
3. I
NSURANCE —
N
O
-F
AULT —
P
ERSONAL
P
ROTECTION
I
NSURANCE
B
ENEFITS —
C
ATASTROPHIC
C
LAIMS —
I
NDEMNIFICATION —
U
NREASONABLE
C
HARGES —
P
OWERS OF THE
M
ICHIGAN
C
ATASTROPHIC
C
LAIMS
A
SSOCIATION
.
The limited statutory power of the MCCA to further its purpose of
prompt and efficient indemnification of its members does not
extend to declining to indemnify unreasonable charges (MCL
500.3104[8][g]).
Plunkett Cooney (by Jeffrey C. Gerish and Gregory
Gromek) for United States Fidelity & Guaranty Com-
pany.
Stark Reagan, P.C. (by Ava K. Ortner), and Dykema
Gossett PLLC (by Joseph K. Erhardt, Jill M. Wheaton,
and K. J. Miller) for the Michigan Catastrophic Claims
Association.
Miller & Tischler, P.C. (by Milea M. Vislosky), for
Michael Migdal.
Secrest Wardle (by Janet Callahan Barnes and John
H. Cowley, Jr.) for Hartford Insurance Company of the
Midwest.
4 484 M
ICH
1 [July
Amici Curiae:
Speaker Law Firm, PLLC (by Liisa R. Speaker), and
Sinas Dramis Brake Boughton & McIntyre PC (by
George T. Sinas and Steven A. Hicks) for the Coalition
Protecting Auto No-Fault.
Hackney, Grover, Hoover & Bean, PLC (by John P.
Lewis), for State Farm Mutual Automobile Insurance
Company.
Michael A. Cox, Attorney General, B. Eric Restuccia,
Solicitor General, and William A. Chenoweth, Assistant
Attorney General, for the Commissioner of the Office of
Financial and Insurance Regulation.
John A. Lydick for the Insurance Institute of Michi-
gan.
ON REHEARING
W
EAVER
, J. This Court originally granted leave to
appeal to consider whether MCL 500.3104(2) obligates
the Michigan Catastrophic Claims Association (MCCA)
to reimburse a member insurer for personal protection
insurance (PIP) benefits paid to a claimant without
regard to the reasonableness of the member insurer’s
payments of PIP benefits. This Court issued an opinion
reversing the Court of Appeals and remanding for
further proceedings, while holding that “when a mem-
ber insurer’s policy only provides coverage for ‘reason-
able charges,’ the MCCA has authority to refuse to
indemnify unreasonable charges.”
1
Subsequently, plain-
tiffs United States Fidelity & Guaranty Company and
Hartford Insurance Company of the Midwest filed mo-
1
United States Fidelity Ins & Guaranty Co v Michigan Catastrophic
Claims Ass’n, 482 Mich 414, 417; 759 NW2d 154 (2008).
2009] USF&G
V
MCCA (O
N
R
EHEARING
) 5
O
PINION OF THE
C
OURT
tions for rehearing. We granted plaintiffs’ motions for
rehearing, and these cases were resubmitted for deci-
sion without further briefing or oral argument.
2
We now hold that the indemnification obligation set
forth in MCL 500.3104(2) does not incorporate the rea-
sonableness standard that MCL 500.3107 requires be-
tween claimants and member insurers. Furthermore, the
powers granted to the MCCA in § 3104(7) are limited to
adjusting the “practices and procedures” of the member
insurers and do not encompass adjustment to the pay-
ment amount agreed to between claimants and member
insurers. Moreover, we hold that the power granted to the
MCCA under MCL 500.3104(8)(g) is limited to furthering
the purposes of the MCCA and that determining reason-
ableness is not one of its purposes. Finally, although the
MCCA has no right to directly challenge the reasonable-
ness of a claim, the no-fault statute does provide the
MCCA with safeguards against negligent actions of mem-
ber insurers. Accordingly, we affirm the judgment of the
Court of Appeals.
I. FACTS AND PROCEDURAL HISTORY
UNITED STATES FIDELITY & GUARANTY CO v MCCA
In the first case in these consolidated appeals, Daniel
Migdal was injured in a 1981 car accident in which he
sustained catastrophic injuries. His injuries included a
traumatic brain injury with cerebral spastic quadriple-
gia, severe oral motor apraxia, and dysphasia. Because
of the extent of the injuries, Daniel was prescribed, and
received, 24-hour-a-day nursing care. In 1988, Michael
Migdal (Mr. Migdal), Daniel’s father and the conserva-
tor of Daniel’s estate, sued the no-fault insurance
2
United States Fidelity Ins & Guaranty Co v Michigan Catastrophic
Claims Ass’n, 483 Mich 918 (2009).
6 484 M
ICH
1 [July
O
PINION OF THE
C
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provider, United States Fidelity & Guaranty Company
(USF&G), to recover expenses paid for Daniel’s care. In
1990, the parties entered into a consent judgment.
Pursuant to the judgment, USF&G paid Mr. Migdal
$35,000 in exchange for a release from all contractual
liability for nursing care provided before May 10, 1989.
Additionally, USF&G agreed to pay $17.50 an hour for
Daniel’s home nursing care for the following year.
3
The
payments would be made regardless of whether
Daniel’s parents provided the nursing care or a third
party was brought in to provide the care. The hourly
rate, fixed for the first year after the judgment, was
subject to an annual increase of 8.5 percent. The
increased rate would be compounded based on the
previous year’s rate.
Pursuant to the consent judgment, USF&G paid Mr.
Migdal the consented-to hourly wage.
4
Once the amount
paid to Mr. Migdal had reached the statutory threshold
amount of $250,000,
5
the MCCA began to reimburse
3
Mr. Migdal created a company to manage Daniel’s care. This company
acted as an intermediary that used the benefit payments from USF&G to
pay the hired nurses who cared for Daniel and to pay Mr. Migdal for his
efforts in Daniel’s care. The judgment contained a provision stating that
if Daniel’s condition substantially changed, the court retained jurisdic-
tion and could determine whether a reduction or increase in the pay-
ments was “warranted.”
4
Mr. Migdal testified that his duties included reading papers concern-
ing business management and medical advances, checking and providing
maintenance of Daniel’s equipment, keeping the books, paying the
nurses, and shopping for necessary items for Daniel’s care.
5
MCL 500.3104(2) reads, in pertinent part:
[T]he association shall provide and each member shall accept
indemnification for 100% of the amount of ultimate loss sustained
under personal protection insurance coverages in excess of the
following amounts in each loss occurrence....
At the time of both accidents involved in these consolidated appeals, the
threshold amount was $250,000.
2009] USF&G
V
MCCA (O
N
R
EHEARING
) 7
O
PINION OF THE
C
OURT
USF&G for payments made to Mr. Migdal that exceeded
the threshold. However, after the hourly rate had
increased significantly with the passage of time, the
MCCA eventually refused to reimburse USF&G for
amounts that USF&G paid Mr. Migdal under the con-
sent judgment, on the ground that the amounts were
unreasonable. In 2003, USF&G filed a complaint in the
Oakland Circuit Court for a declaratory judgment that
the MCCA must reimburse USF&G for the total
amount that USF&G paid to Mr. Migdal under the
consent judgment, regardless of the reasonableness of
the amount. At the time, USF&G was paying $54.84 an
hour to Mr. Migdal for Daniel’s nursing care.
6
The
MCCA sought to only be required to reimburse USF&G
at a rate of $22.05 an hour, arguing that the agreed-
upon rate of $54.84 an hour was unreasonable and,
therefore, the MCCA should not have to reimburse
USF&G for the total amount. Meanwhile, USF&G
sought to have the consent judgment with Mr. Migdal
revised, arguing that circumstances had changed when
Mr. Migdal hired a third party to care for Daniel instead
of providing the nursing care himself. Mr. Migdal filed a
motion for summary disposition for failure to state a
claim upon which relief could be granted. The court
granted Mr. Migdal’s motion.
7
Likewise, the MCCA moved for summary disposition.
It contended that there was no question of material fact
that the payments made by USF&G to Mr. Migdal were
unreasonable. Moreover, the MCCA argued that the
no-fault act only required reimbursement of payments
6
Mr. Migdal paid $32 an hour of this amount to the nurses (including
benefits) and kept the rest as compensation for his work.
7
USF&G did not appeal that decision. We therefore express no opinion
on whether the consent judgment would have been subject to judicial
modification on the ground that the payment amount it called for had
become unreasonable with the passage of time.
8 484 M
ICH
1 [July
O
PINION OF THE
C
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that are reasonable. In a countermotion for summary
disposition, USF&G argued that the no-fault act re-
quired the MCCA to reimburse it for the full amount
paid to Mr. Migdal, despite any unreasonableness re-
garding the amount paid. Alternatively, USF&G argued
that there was a question of material fact concerning
the “unreasonableness” of the consent judgment.
The trial court granted USF&G’s motion for sum-
mary disposition, ruling that the MCCA must reim-
burse USF&G for its “ultimate loss,”
8
including the
entire amount that USF&G had to pay Mr. Migdal,
regardless of whether the amount paid was reasonable.
The trial court denied the MCCA’s motion for summary
disposition. The trial court entered a judgment requir-
ing the MCCA to reimburse USF&G in the amount of
$1,725,072 under the no-fault act and holding the
MCCA liable for future payments consistent with the
consent judgment. The parties agreed to stay the en-
forcement of the order while the MCCA appealed by
right in the Court of Appeals.
HARTFORD INS CO v MCCA
In the second case of these consolidated appeals,
Robert Allen was injured in a 2001 car accident in
which he sustained catastrophic injuries. His injuries
included right-sided pleuritic effusion, brain injuries,
quadriparesis, bilateral frozen shoulder, and cardiopa-
thy. Because of the extent of the injuries, Allen was
prescribed, and received, 24-hour-a-day care by a li-
censed nurse. Hartford Insurance Company of the Mid-
west (Hartford), Allen’s no-fault insurer, initially paid
$20 an hour for the nurse. In 2003, Hartford agreed to
pay an increased rate of $30 an hour for Allen’s care.
8
MCL 500.3104(2).
2009] USF&G
V
MCCA (O
N
R
EHEARING
) 9
O
PINION OF THE
C
OURT
Soon thereafter, Hartford’s payments for Allen’s care
exceeded the $250,000 statutory threshold.
The MCCA refused to reimburse Hartford for any
payments above $20 an hour for the services ren-
dered. Hartford filed a complaint for a declaratory
judgment that would require the MCCA to pay Hart-
ford $571,847.21 as reimbursement for payments
exceeding the no-fault threshold. Additionally, Hart-
ford sought a declaration that the MCCA must reim-
burse Hartford for the total payments above the
$250,000 threshold, regardless of the reasonableness
of the payments. After the initial filing, Hartford
moved for summary disposition, arguing that the
no-fault act required the MCCA to reimburse Hart-
ford for the entire amount paid to Allen that exceeded
the threshold, regardless of the reasonableness of
that amount. The MCCA argued that it only had to
reimburse Hartford for reasonable payments and
that there was insufficient discovery concerning the
reasonableness of the amount of the payments. The
circuit court ruled that reasonableness was an ele-
ment in determining how much the MCCA must
reimburse Hartford and that there was insufficient
discovery to determine if the payments were reason-
able. Hartford immediately appealed the trial court’s
holding requiring the element of reasonableness to be
considered.
THE COURT OF APPEALS’ DECISION
The Court of Appeals consolidated the USF&G and
Hartford cases and held that “MCL 500.3104 does not
incorporate a ‘reasonableness’ requirement and re-
quires the MCCA to reimburse insurers for the actual
amount of PIP benefits paid in excess of the statutory
10 484 M
ICH
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threshold.”
9
(Emphasis in the original.) The MCCA
sought leave to appeal in this Court, and this Court
granted leave.
10
This Court issued an opinion reversing
the Court of Appeals and remanding for further pro-
ceedings, while holding that “when a member insurer’s
policy only provides coverage for ‘reasonable charges,’
the MCCA has authority to refuse to indemnify unrea-
sonable charges.”
11
Subsequently, plaintiffs United
States Fidelity & Guaranty Company and Hartford
Insurance Company of the Midwest filed motions for
rehearing. We granted plaintiffs’ motions for rehearing
and this case was resubmitted for decision without
further briefing or oral argument. 483 Mich 918
(2009).
12
9
United States Fidelity Ins & Guaranty Co v Michigan Catastrophic
Claims Ass’n, 274 Mich App 184, 192; 731 NW2d 481 (2007).
10
481 Mich 862 (2008).
11
United States Fidelity Ins & Guaranty Co v Michigan Catastrophic
Claims Ass’n, 482 Mich 414, 417; 759 NW2d 154 (2008).
12
Justices C
ORRIGAN
and Y
OUNG
were simply shown as denying the
motions for rehearing. However, Justice Y
OUNG
, in his dissent joined by
Justice C
ORRIGAN
, now takes the opportunity well after the motions for
rehearing have been decided to attack the remaining justices who did not
vote to retain this Court’s earlier decision.
The dissent erroneously asserts that the justices voting to grant
rehearing erred because Peoples v Evening News Ass’n, 51 Mich 11, 21;
16 NW 185 (1883), held that this Court is precluded from granting
rehearing when the composition of the Court has changed, absent any
new arguments from the parties in the cases. However, contrary to the
dissent’s assertions, this Court merely stated in Peoples that a change
in the composition of this Court cannot be the basis for granting
rehearing.
Accordingly, if the composition of the Court changes, and the compo-
sition becomes such that a majority of the Court sees a reason to grant
rehearing, the majority is not precluded under Peoples from granting
rehearing. If, for instance, four justices on the newly composed Court
concluded that the challenged opinion was erroneous, those justices can
vote to grant rehearing. The same holds true whether the deciding vote
is a new justice who joined the Court after the challenged opinion was
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II. STANDARD OF REVIEW
Statutory interpretation is a question of law, which
this Court reviews de novo. In re Investigation of March
1999 Riots in East Lansing (People v Pastor), 463 Mich
378, 383; 617 NW2d 310 (2000). This Court reviews de
novo a trial court’s decision regarding a motion for
summary disposition. Herald Co v Bay City, 463 Mich
111, 117; 614 NW2d 873 (2000).
III. ANALYSIS
The issue before this Court involves how much of a
member insurer’s coverages the MCCA must indemnify
in the event of a catastrophic injury. Specifically, is the
MCCA liable for reimbursement of PIP payments based
on potentially unreasonable claims?
The outcome of these cases depends on this Court’s
interpretation of the language in MCL 500.3104. An
overarching rule of statutory construction is “that this
Court must enforce clear and unambiguous statutory
provisions as written.” In re Certified Question (Pre-
ferred Risk Mut Ins Co v Michigan Catastrophic Claims
Ass’n), 433 Mich 710, 721; 449 NW2d 660 (1989)
released or whether the deciding vote comes from a justice who signed the
challenged opinion and changed his or her mind after further consider-
ation.
This practice is consistent with MCR 2.119(F)(3), which creates a
“palpable error” standard for rehearing cases. It is up to the moving
party to show palpable error that would lead to a different disposition in
the case. If a majority of the Court is convinced by the moving party, the
Court has the discretion to grant rehearing. Furthermore, while MCR
2.119(F)(3) states that a motion for rehearing will generally not be
granted if the motion only presents the same arguments decided in the
original disposition of the case, MCR 2.119(F)(3) explicitly refrains from
“restricting the discretion of the court” to grant rehearing.
Accordingly, we are not persuaded by the dissent’s attempts to
discredit this Court’s order that granted rehearing in this case.
12 484 M
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(quotation marks omitted). “If the language of [a]
statute is unambiguous, the Legislature must have
intended the meaning clearly expressed, and the statute
must be enforced as written.” Sun Valley Foods Co v
Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). How-
ever, “what is ‘plain and unambiguous’ often depends
on one’s frame of reference.” Shiffer v Gibraltar School
Dist Bd of Ed, 393 Mich 190, 194; 224 NW2d 255 (1974).
In order to ascertain this frame of reference, the con-
tested provisions must be read in relation to the statute
as a whole and work in mutual agreement. In re
Certified Question, 433 Mich at 722. See also State
Treasurer v Wilson, 423 Mich 138, 144; 377 NW2d 703
(1985).
Additionally, the frame of reference shares a deep
nexus with the intent of the Legislature. “The primary
goal of statutory interpretation is to give effect to the
intent of the Legislature.” Title Office, Inc v Van Buren
Co Treasurer, 469 Mich 516, 519; 676 NW2d 207 (2004),
quoting In re MCI Telecom Complaint, 460 Mich 396,
411; 596 NW2d 164 (1999). Fundamentally, “[t]his task
begins by examining the language of the statute itself.
The words of a statute provide the most reliable evi-
dence of [the Legislature’s] intent....”Sun Valley, 460
Mich at 236 (citation and quotation marks omitted).
This Court must “consider both the plain meaning of
the critical word or phrase as well as ‘its placement and
purpose in the statutory scheme.’ ” Id. at 237, quoting
Bailey v United States, 516 US 137, 145; 116 S Ct 501;
133 L Ed 2d 472 (1995). “As far as possible, effect should
be given to every phrase, clause, and word in the
statute. The statutory language must be read and
understood in its grammatical context, unless it is clear
that something different was intended.” Sun Valley,
460 Mich at 237.
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In interpreting § 3104, this Court first must deter-
mine how § 3104(2) corresponds with § 3107 and how
these two provisions correspond within the entire statu-
tory scheme. Section 3104(2) requires that the MCCA
“shall provide and each member shall accept indemni-
fication for 100% of the amount of ultimate loss sus-
tained under personal protection insurance coverages
in excess of the following amounts in each loss occur-
rence....”
13
Section 3107(1)(a) defines “personal pro-
tection insurance benefits” as “[a]llowable expenses
consisting of all reasonable charges incurred for reason-
ably necessary products, services and accommodations
for an injured person’s care, recovery or rehabilitation.”
This provision requires that all PIP benefits claimed
and paid between the insurer and the insured must be
reasonable. The MCCA argues that this Court should
incorporate the § 3107 definition of “benefits” into
§ 3104(2) where § 3104(2) refers to “coverages.” How-
ever, we decline to do so because the phrase “personal
protection insurance benefits” has a distinct meaning
from the phrase “personal protection insurance cover-
ages” that is found in § 3104(2).
When the Legislature uses different words, the words
are generally intended to connote different meanings.
Simply put, “the use of different terms within similar
statutes generally implies that different meanings were
intended.” 2A Singer & Singer, Sutherland Statutory
Construction (7th ed), § 46:6, p 252. If the Legislature
had intended the same meaning in both statutory
provisions, it would have used the same word. There-
fore, we disagree with the MCCA and hold that the
definition of personal protection insurance benefits
13
The amounts are statutorily set to increase over time. At the time of
both accidents, the threshold amount was $250,000. In 2008, the thresh-
old amount was $440,000. See MCL 500.3104(2)(a) to (k).
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found in § 3107(1)(a) (including the reasonableness
standard) is not equivalent to the definition of personal
protection insurance coverages in § 3104(2).
The distinctive use of the term “coverages” is impor-
tant. LeBlanc v State Farm Mut Auto Ins Co, 410 Mich
173, 204; 301 NW2d 775 (1981) (“ ‘Coverage’, a word of
precise meaning in the insurance industry, refers to
protection afforded by an insurance policy, or the sum of
the risks assumed by a policy of insurance.”). Although
the terms “benefits” and “coverages” are related be-
cause of their close proximity in the statute,
14
the
proximity of these two terms does not mean that they
are synonymous.
Section 3107 excludes from the definition of “allow-
able expenses” within PIP “coverage” hospital charges
in excess of reasonable and customary semi-private
room charges and funeral and burial expenses in
amounts specified in the policy (subject to a range
specified in that section). This leaves all other charges
open to PIP “coverage.” The fact that the Legislature
limited the exceptions to “coverage” so narrowly indi-
cates that the term “coverage” is a broader term than
“benefits.” Moreover, because “coverages” is never
given a more restrictive definition elsewhere in the
14
MCL 500.3107(1) provides, in pertinent part:
Except as provided in subsection (2), personal protection insur-
ance benefits are payable for the following:
(a) Allowable expenses consisting of all reasonable charges
incurred for reasonably necessary products, services and accom-
modations for an injured person’s care, recovery, or rehabilitation.
Allowable expenses within personal protection insurance coverage
shall not include charges for a hospital room in excess of a
reasonable and customary charge for semiprivate accommoda-
tions...orforfuneral and burial expenses in the amount set forth
in the policy which shall not be less than $1,750.00 or more than
$5,000.00. [Emphasis added.]
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statutes, the word must be afforded its ordinary, every-
day meaning. Sun Valley, 460 Mich at 237 (“The statu-
tory language must be read and understood in its
grammatical context, unless it is clear that something
different was intended.”). In the grammatical context,
the meaning of “coverages” is its common meaning,
limited only by the specific statutory exceptions.
“Coverage” is defined in dictionaries as the “[e]xtent
of protection afforded by an insurance policy [or the]
amount of funds reserved to meet liabilities,”
15
as
“protection against a risk or risks specified in an
insurance policy,”
16
as “the risks within the scope of an
insurance policy,”
17
and as the “amount, and extent of
risk covered by insurer.”
18
Under the common meaning
of “coverage,” the contractual liability amount that an
insurer agrees to pay an insured is considered a part of
the insurer’s coverage. USF&G and Hartford paid
funds pursuant to a consent judgment and a settlement
agreement with the respective insureds. This contrac-
tual liability, or coverage, owed by each insurer is the
total amount agreed to between the original contracting
parties. The reasonableness of the agreed payment
amount is not a factor.
The meaning of “coverages” in MCL 500.3104 be-
comes clearer after considering “ ‘its placement and
purpose in the statutory scheme.’ ” Sun Valley, 460
Mich at 236, quoting Bailey, 516 US at 145. In the
statute, “coverages” is positioned just after “ultimate
loss.” “Ultimate loss” is statutorily defined as the
“actual loss amounts that a member is obligated to pay
and that are paid or payable by the member....”MCL
15
Webster’s II New College Dictionary (1995).
16
Random House Webster’s College Dictionary (2001).
17
Black’s Law Dictionary (7th ed).
18
Black’s Law Dictionary (5th ed).
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500.3104(25)(c) (emphasis added). The obligation of the
insurer is to fulfill its duty by honoring its contractual
coverages. The duty to perform the contract relates
back to the ultimate loss insofar as the ultimate loss
includes payment of the obligation, i.e., the total con-
tracted amount. Consequently, the MCCA must reim-
burse the insurers for 100 percent of the ultimate loss,
which reflects the amount to which the insurer and the
insured agreed, and subject to PIP coverage. The ulti-
mate loss specifically refers to coverage, which is
broader than benefits and is not statutorily limited to
reasonable payments.
19
Moreover, the MCCA is not a no-fault insurer of its
member companies, and the member companies are not
injured persons entitled to no-fault indemnification.
Thus, the relationship between the MCCA and its
members is not subject to the reasonableness require-
ments found in MCL 500.3107. Rather, the Legislature
provided in § 3104(2) that the MCCA would “indem-
nify” the insuring members for PIP payments. The
Legislature did not state that the MCCA would “insure”
or “reinsure” the members for amounts greater than
the threshold. Black’s Law Dictionary (5th ed) defines
“indemnify” as “[t]o restore the victim of a loss, in
whole or in part, by payment . . . ; to secure against loss
or damage....” Indemnification is not a contingent
plan like an insurance plan. Instead, it is a set security
19
The MCCA argues that if there is not a reasonableness factor for it to
enforce, the member insurers will have no incentive to make reasonable
settlements that do not exceed the statutory threshold amount because
the insurers will not be liable to pay anything beyond the threshold
amount. However, one incentive comes from higher premiums paid to the
MCCA. See MCL 500.3104(7)(d) (requiring that the MCCA assess its
member companies an annual premium on each of their no-fault policies
written in Michigan). If all the individual members act in a manner that
does not regard the reasonableness of their settlements, then insurance
premiums will increase greatly.
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meant to assist against certain circumstances. Here,
those circumstances arise when the PIP amount con-
tracted by the insurer exceeds the statutory threshold.
Section 3401(1) states that the MCCA is “not subject
to any laws... with respect to insurers.” Thus, the
MCCA is not a no-fault insurer, and consequently it is
also not a reinsurer. Because the MCCA is not a no-fault
insurer, but, rather, an indemnitor of no-fault insurers
for benefits in excess of the statutory threshold, § 3107
does not directly bind the MCCA; it only binds the
insurer members and the insured. Section 3107 “makes
both reasonableness and necessity explicit and neces-
sary elements of a claimant’s [insured’s] recovery ....”
Nasser v Auto Club Ins Ass’n, 435 Mich 33, 49; 457
NW2d 637 (1990) (emphasis added). Specifically, it is
the insurance company that has the right to deny a
claim (or part of a claim) for unreasonableness under
§ 3107. The insured then has the burden to prove that
the charges are in fact reasonable. See, generally,
Nasser, 435 Mich at 49, Manley v Detroit Automobile
Inter-Ins Exch, 425 Mich 140; 388 NW2d 216 (1986),
and LaMothe v Auto Club Ins Ass’n, 214 Mich App 577;
543 NW2d 42 (1995). Given that the established burden
of proof is on the insured, it is counterintuitive to
conclude that the member insurance company would
benefit from not having the burden of proof in one
instance against an insured, but having the burden in
another instance against the MCCA.
The MCCA maintains that the foregoing statutory
constructions will lead to higher costs to insureds and
will be a disincentive for member insurers to keep
payments reasonable. These fears are unfounded. The
MCCA is an unincorporated nonprofit association,
whose purpose is to provide insurers with indemnifica-
tion for PIP policies that exceed a certain threshold. See
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MCL 500.3104(1). The Legislature created the MCCA
“in response to concerns that Michigan’s no-fault law
provision for unlimited [PIP] benefits placed too great a
burden on insurers, particularly small insurers, in the
event of ‘catastrophic’ injury claims.” In re Certified
Question, 433 Mich at 714. The MCCA maintains that it
should have the ability to unilaterally stop making
indemnification payments to a member when it deter-
mines that the claim payments are unreasonable. Yet,
the MCCA acknowledges that a member can take the
MCCA to court over a reasonableness dispute, which
would leave a finder of fact as the ultimate authority
over whether the payments are reasonable.
In essence, under the MCCA’s preferred outcome,
when a member insurer makes an agreement with an
insured (often in a litigation setting, whether it be an
arbitration hearing, consent judgment, or declaratory
judgment), the member must then sue the MCCA if the
MCCA finds that the payment is unreasonable. If this
Court were to accept the MCCA’s argument, the logical
consequence would be that member insurers would be
reluctant to settle with the claimant. Member insurers
might then force a jury trial with every catastrophically
injured claimant in order to secure a verdict with a
“reasonable” stamp on the result. This outcome goes
against the legislative purpose of ensuring efficient and
quick recovery for claimants in the no-fault system.
Shavers v Attorney General, 402 Mich 554, 578-579; 267
NW2d 72 (1978) (“The goal of the no-fault insurance
system was to provide victims of motor vehicle acci-
dents assured, adequate, and prompt reparation for
certain economic losses.”).
In response to the MCCA’s concerns, it should be
pointed out that the MCCA is not without a safeguard
to protect against unreasonable payments. The Legis-
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lature specifically laid out powers that the MCCA can
exercise to guard against unreasonable settlements of
catastrophic claims. MCL 500.3104(7)(b) states that the
MCCA shall
[e]stablish procedures by which members shall promptly
report to the association each claim that, on the basis of the
injuries or damages sustained, may reasonably be antici-
pated to involve the association if the member is ultimately
held legally liable for the injuries or damages. Solely for the
purpose of reporting claims, the member shall in all in-
stances consider itself legally liable for the injuries or
damages. The member shall also advise the association of
subsequent developments likely to materially affect the
interest of the association in the claim. [Emphasis
added.]
[
20
]
This statutory language requires and empowers the
MCCA to establish procedures to protect itself from
unreasonable settlements in all cases involving claims
that may exceed the threshold and consequently affect
the MCCA. The MCCA’s plan of operation likewise
echoes these statutory requirements.
21
This language
enables the MCCA to establish procedures that will
enable it to exercise appropriate control over settle-
ments whenever the member reasonably anticipates
that the claim will involve the MCCA.
Only then, not after the claimant and member in-
surer have reached a settlement, can the MCCA exer-
20
Section 3104 includes numerous other rules for the MCCA, such as
membership requirements, liability, and creation of a “plan of operation.”
21
Art X, § 10.01 of the plan of operation provides in part:
Members shall report to the Association such information as
the Board may require on forms prescribed by the Board: (a) As
soon as practicable after the loss occurrence, Members shall report
each claim which, on the basis of the injuries or damages sus-
tained, may reasonably be anticipated to result in a Reimbursable
Ultimate Loss, and for purposes of reporting the Member shall
consider itself legally liable for the injuries and damages.
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cise control over the settlement process. Under MCL
500.3104(7)(g), the MCCA must
[e]stablish procedures for reviewing claims procedures and
practices of members of the association. If the claims
procedures or practices of a member are considered inad-
equate to properly service the liabilities of the association,
the association may undertake or may contract with an-
other person, including another member, to adjust or assist
in the adjustment of claims for the member on claims that
create a potential liability to the association and may
charge the cost of the adjustment to the member. [Empha-
sis added.]
Thus, when § 3104(7)(g) is read in conjunction with
§ 3104(7)(b), the outcome is that the MCCA is required
to review those reports by members that anticipate
needing indemnification and to assess the adequacy of
the procedures or practices of the member.
22
Upon a
finding of inadequacy, the MCCA can adjust the prac-
tices or procedures of the member.
23
One of the key
protections here is that the MCCA has the power and
22
The MCCA argued that because part of § 3104(7)(g) uses the term
“may” instead of “must” in describing some of its potential powers, the
MCCA has greater power than what directly follows in the statute to limit
or control the individual member insurers. The MCCA wishes to conclude
that since the section does not set forth a duty to act in a specific way
(e.g., review claims), it allows the MCCA to act how it wants regarding
member claims, including questioning their reasonableness. This is
erroneous. The premise and purpose of the MCCA is to indemnify
insurers for payments beyond the threshold amount, so that insurance
firms of all sizes can compete in Michigan’s no-fault market without fear
of sustaining disproportionate catastrophic loss claims.
23
The plan of operation also echoes the statute in this regard:
If a Member or 3103 Member refuses to timely submit the
reports or information required of it pursuant to Section 10.01 or
otherwise, or if the Board should determine that the reports and
information submitted by a Member or 3103 Member are unreli-
able or incomplete, the Board may, at the member’s expense, direct
that an authorized representative of the Association (which may
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duty to adjust only “procedures and practices” of the
member that produce an unreasonable payment
amount; the power does not include the power to adjust
the amount after a settlement has been reached.
24
The
MCCA has the power to step in before a settlement has
been reached and adjust situations that it anticipates
might otherwise expose it to unreasonable indemnifica-
tion costs. By requiring submission of proposed settle-
ment agreements for approval, the MCCA can protect
itself against later having to pay unreasonable claims
from member insurers. The exercise of these powers is
the MCCA’s protection against a member’s neglect of
its duties.
Finally, the MCCA argues that § 3104(8)(g) gives it
the power to question reasonableness regardless of the
statute’s other provisions. Specifically, § 3104(8)(g) al-
lows the MCCA to “[p]erform other acts not specifically
enumerated in this section that are necessary or proper
to accomplish the purposes of the association and that
be another member) shall audit and inspect such member’s
records and compile the required information and data. [Art X,
§ 10.02.]
24
Although § 3104(7)(g) states that the MCCA may “adjust or assist in
the adjustment of claims,” the practical effect of § 3104(7)(g) is that only
the MCCA is able to prescribe procedures and practices by which to
ensure the reasonableness of the amounts that members agree to pay to
claimants. When the MCCA asserts its power to adjust or assist in the
adjustment of a claim, the MCCA effectively steps into the shoes of the
member insurer. The claim that the MCCA reviews for adjustment
purposes is the insured’s claim with the member insurer, not the member
insurer’s reimbursement claim with the MCCA. Accordingly, the MCCA,
standing in the shoes of the member insurer, is limited to the member
insurer’s power to review the insured’s claim for reasonableness as
spelled out in the member insurer’s policy, a settlement agreement, or a
consent judgment. Thus, even when the MCCA assists in or assumes
control over the claims adjustment process, the amount payable is still
dictated by the amount that the member insurer is “obligated” to pay to
the insured when a settlement already has been reached.
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are not inconsistent with this section or the plan of
operation.” However, this section does not give the
MCCA carte blanche to simply avoid a member insur-
er’s agreement that it finds unreasonable. The power
granted under § 3104(8)(g) is limited to accomplishing
the “purposes of the association.” More importantly, the
exercise of this power cannot be “inconsistent with this
section or the plan of operation.” Id. The plan of
operation created pursuant to § 3104(17) must be “con-
sistent with the objectives and provisions of this section,
which shall provide for the economical, fair, and non-
discriminatory administration of the association and
for the prompt and efficient provision of indemnity.”
MCL 500.3104(17) (emphasis added).
Section 3104(8)(g) allows the MCCA to fulfill the
specific requirements of the statute. Accordingly, we
interpret § 3104(8)(g) as granting the MCCA the lim-
ited power to further its purpose of prompt and efficient
indemnification of its members. To interpret that sec-
tion as granting any further power, such as the power to
decline indemnification on the basis of the reasonable-
ness of the indemnification amount, would be inconsis-
tent with the Legislature’s intent.
IV. RESPONSE TO THE DIS SENT
The dissent raises the concern that a decision in favor
of plaintiffs in this case will result in substantially in-
creased insurance costs. Certainly, insurance costs are a
critical concern, but they are a policy concern that belongs
to the Legislature. Nonetheless, we observe that the
concern appears highly speculative and, indeed, un-
founded. There is no evidence that insurers have engaged
or will engage in slack negotiations. It bears mentioning
here that there is no indication that the settlements in
these cases were unreasonable when made.
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The dissent bases its concern on an affidavit from
defendant’s executive director in which she refers to an
estimate provided by consultants to defendant. No basis
is given in the affidavit for the estimated increase in
costs. And there is reason to wonder about this esti-
mate, at least inasmuch as it might be based on an
anticipated decision from this Court.
First, there is no evidence that defendant has rou-
tinely or even occasionally challenged the reasonable-
ness of insurers’ settlements with their insureds until
very recently. It is difficult to understand how it will
cost defendant extravagant sums to give up a practice it
has only recently begun. Second, it is unknown whether
the actuarial assessment factored in the effect of defen-
dant’s potential use of the cost-containment procedure
actually provided by the Legislature in MCL
500.3104(7)(g).
As mentioned, the Legislature has provided that “[i]f
the claims procedures or practices of a member are
considered inadequate to properly service the liabilities
of the association, the association may undertake...to
adjust or assist in the adjustment of claims for the
member on claims that create a potential liability to the
association....”MCL500.3104(7)(g). There is no evi-
dence that the actuarial assessment considered the
effect of defendant’s implementation of this legisla-
tively provided cost-savings mechanism.
The dissent additionally fails to recognize that
there is a compelling policy reason to reject defen-
dant’s claim that it may review settlements for rea-
sonableness: namely, to limit litigation and promote
settlements. This Court has long recognized that
“[t]he goal of the no-fault insurance system was to
provide victims of motor vehicle accidents assured,
adequate, and prompt reparation for certain eco-
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nomic losses.” Nelson v Transamerica Ins Services,
441 Mich 508, 514; 495 NW2d 370 (1992) (citation
and quotation marks omitted). Additionally, this
Court has stated that “[t]he act is designed to mini-
mize administrative delays and factual disputes that
would interfere with achievement of the goal of
expeditious compensation of damages suffered in
motor vehicle accidents.” Miller v State Farm Mut
Auto Ins Co, 410 Mich 538, 568; 302 NW2d 537
(1981). The ability of insurers to settle claims is
essential to meeting these goals. Yet, if defendant can
reexamine settlements of reasonableness long after
they are made, then insurers will be very reluctant to
make settlements. Further, a new layer of litigation
for after-the-fact reasonableness assessments, such
as this one, would be inevitable. There is no evidence
that the actuarial assessment on which the dissent
relies has accounted for the substantial increase in
litigation costs that would result if this Court allows
defendant the extrastatutory power to question
settlements for reasonableness after they are made.
But, again, these are policy concerns best addressed
by the Legislature. It appears that the Legislature has
indeed balanced these concerns in the provisions of
MCL 500.3104, and there is no reason for this Court to
apply a strained construction to the statutes to achieve
a goal contrary to the purposes of the no-fault act. In
the unlikely event that insurers become milquetoast
negotiators, defendant has the statutorily provided pro-
tection to remedy the situation.
V. CONCLUSION
We hold that the indemnification obligation set forth
in § 3104(2) does not incorporate the reasonableness
standard that § 3107 requires between claimants and
member insurers. Furthermore, the powers granted to
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OURT
the MCCA in § 3104(7) are limited to adjusting the
“practices and procedures” of the member insurers and
do not encompass adjustment to the payment amount
agreed to between claimants and member insurers.
Finally, we hold that the power granted to the MCCA
under § 3104(8)(g) is limited to furthering the purposes
of the MCCA, and that determining reasonableness is
not one of its purposes.
Accordingly, we affirm the Court of Appeals holding
that the MCCA must reimburse its member insurers
100 percent of the ultimate loss exceeding the statutory
threshold for claims without a reduction based on its
unilateral assessment of the reasonableness of the
amount.
Affirmed.
K
ELLY
, C.J., and C
AVANAGH
and H
ATHAWAY
, JJ., con-
curred with W
EAVER
,J.
Y
OUNG
,J.(dissenting). I respectfully dissent.
On December 29, 2008, this Court decided these
cases.
1
Today, just a few months later, a new majority
2
reverses that decision and it does so without even
affording the parties an opportunity to brief and argue
why this reversal is warranted. Although not relevant
to my analysis of the substantive issue in these cases,
3
the costs that the majority’s decision will impose on
Michigan drivers is relevant to assessing the majority’s
hurried approach and policy-based reversal of this
1
United States Fidelity Ins & Guaranty Co v Michigan Catastrophic
Claims Ass’n, 482 Mich 414; 759 NW2d 154 (2008) (hereinafter USF&G I).
2
I note that the majority in this case is the new philosophically aligned
majority: Justices W
EAVER
,C
AVANAGH
, and H
ATHAWAY
and Chief Justice
K
ELLY
.
3
See USF&G I, supra at 432 n 32.
26 484 M
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Court’s prior decision. As I will discuss later, the
majority’s decision will cause every Michigan resi-
dent who owns and insures an automobile to pay a 19
percent higher annual surcharge premium for man-
datory catastrophic coverage. The cost of the majori-
ty’s decision to those with insured automobiles will
be an estimated $693.8 million more for the coming
year alone.
4
I. WHAT CHANGED?
The facts have not changed. The text of the statute
at issue has not changed. The parties’ arguments have
not changed. And the rationale advanced in the opin-
ions of this Court has not changed. Yet, within a matter
of months, a decision of this Court, thoughtfully
briefed, argued, and considered by seven justices, is no
longer worth the paper it was written on. Even the
casual observer, however, does not really need to ask
why. The reason is obvious: On January 1, 2009, the
composition of this Court changed.
II. WHY IS THIS CASE BEING REHEARD?
This case was argued on October 1, 2008. On Novem-
ber 4, 2008, Justice H
ATHAWAY
defeated then-Chief Justice
T
AYLOR
in the election for his seat on this Court. This case
was decided on December 29, 2008, with former Chief
Justice T
AYLOR
casting his vote with the majority.
4
In response to the motions for rehearing, the Michigan Catastrophic
Claims Association (MCCA) has conducted an actuarial assessment to
detail the expected increase in auto insurance premiums that reversal of
our original decision will produce—19 percent more in catastrophic
claims premiums to be precise. See the affidavit of Gloria Freeland in
support of appellant’s supplement to its answer to appellee’s motion for
rehearing, attached hereto as an appendix.
2009] USF&G
V
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The new majority’s opinion today offers no new
rationale or argument. In fact, it is merely an extended
quotation of Justice W
EAVER
’s former dissent.
For over a century this Court has adhered to the
principle that a motion for rehearing should be denied
unless a party has raised an issue of fact or law that was
not previously considered but which may affect the
outcome.
5
Indeed, this Court codified that principle in
our court rules.
6
As Justice W
EAVER
’s former dissent in these cases
and the majority’s new opinion make obvious, the
parties have not raised a new issue of fact or law to
merit rehearing. The only difference is in the member-
ship of this Court. As early as 1883, this Court had the
wisdom to realize that such a change is not a proper
ground for rehearing. In Peoples v Evening News Ass’n,
7
this Court’s opinion on a motion for rehearing stated in
its entirety:
5
See Nichols, Shepard & Co v Marsh, 62 Mich 439, 440; 29 NW 37
(1886); Thompson v Jarvis, 40 Mich 526, 526 (1879).
6
See MCR 2.119(F)(3), which provides:
Generally, and without restricting the discretion of the court, a
motion for rehearing or reconsideration which merely presents the
same issues ruled on by the court, either expressly or by reason-
able implication, will not be granted. The moving party must
demonstrate a palpable error by which the court and the parties
have been misled and show that a different disposition of the
motion must result from correction of the error.
The new majority states that MCR 2.119(F)(3) “creates a ‘palpable
error’ standard for rehearing cases.” Ante at 12 n 12. The actual standard
created is: “a palpable error by which the court and the parties have been
misled ....”Neithertheparties nor the new majority suggest that this
Court was previously misled. Plaintiffs and the new majority simply
disagree with this Court’s prior opinion for the reasons previously stated
in the flawed analysis of Justice W
EAVER
’s dissent.
7
51 Mich 11; 16 NW 185 (1883).
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This case having been heard and decided when three
judges only were sitting, and a change in the Court having
taken place and a further change being [about] to occur on
the first of January, a motion is now made for a rehearing
at the next January term before the full Court as it will
then be constituted.
Held, unanimously, that a rehearing will not be ordered
on the ground merely that a change of members of the
bench has either taken place or is about to occur.
[
8
]
By ordering rehearing simply because a change in the
Court has taken place, the new majority has overruled
the longstanding and clear principle of Peoples.
9
Will
any change in an assigned judge now justify the reopen-
ing of a predecessor’s ruling?
It is apparent that the new majority feels unencum-
bered by such principles—even one that has endured
for more than 100 years. And, perhaps, its members no
longer feel a need to be cosseted by the concerns and
beliefs that they professed to have for the past decade
when they were members of the philosophical minority
of this Court. Indeed, Chief Justice K
ELLY
once ex-
claimed that a recent decision of the Court being
reconsidered “has hardly had time to become out-
moded.”
10
Justice C
AVANAGH
similarly protested that
“[i]f a majority of the Court believes that reconsidera-
tion should be granted, then I believe that the proper
course would be to receive briefs and hear arguments on
8
Id.at21.
9
The restraint demonstrated by this Court in Peoples has been
duplicated by other courts denying rehearing when the sole basis is a
change in the composition of the court. See Golden Valley Co v Green-
gard’s Estate, 69 ND 171, 190; 284 NW 423 (1938); Gas Products Co v
Rankin, 63 Mont 372; 207 P 993 (1922); Wolbol v Steinhoff, 25 Wyo 227,
258; 170 P 381 (1918); Woodbury v Dorman, 15 Minn 341 (1870); Stearns
v Hemmens, 3 NYS 16 (NY Comm Pl, 1888).
10
McCready v Hoffius, 459 Mich 1235, 1236 (1999) (K
ELLY
, J., dissent-
ing).
2009] USF&G
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the defendant’s constitutional argument before re-
manding the case to the trial court.”
11
Because nothing in the facts, arguments, or legal
rationale has changed, I continue to support this
Court’s original decision and do not feel the need to
restate it in its entirety here.
III. FACTS AND PROCEDURAL HISTORY
The facts and procedural history of these consoli-
dated appeals are simple, uncontested, and have been
set out by this Court in detail three times.
The central question here is whether an insurance
company that strikes a bad bargain with its insured
may fob off on the Michigan Catastrophic Claims Asso-
ciation (MCCA), a nonprofit entity created by the Leg-
islature to spread the costs associated with catastrophic
automobile injuries, these “unreasonable” expenses. In
our earlier decision, we held that the MCCA had explicit
11
Id. at 1236-1237 (C
AVANAGH
, J., dissenting) (emphasis added). Unlike
this case, the defendants in McCready cited new authority for their
position. Nevertheless, Chief Justice K
ELLY
and Justice C
AVANAGH
were
adamant that this Court erred by considering the new authority on
rehearing. It is indeed at least curious that Chief Justice K
ELLY
and
Justice C
AVANAGH
opposed the remand order in McCready, which was
premised on new authority, but freely joined this Court’s order for
rehearing “without further briefing or oral argument,” United States
Fidelity Ins & Guaranty Co v Michigan Catastrophic Claims Ass’n, 483
Mich 918 (2009), and the reversal of this Court’s opinion without any new
issues being raised.
Moreover, I find it odd that Justice H
ATHAWAY
, who, during her Supreme
Court campaign, actively promoted the fabrication that former Chief Justice
T
AYLOR
slept through the oral argument of McDowell v Detroit, 477 Mich
1079 (2007), finds it appropriate to cast her vote to overturn this Court’s
decision without so much as attending argument on this case or allowing the
party opposing the motion to have its day in court. See minutes 4:28 to 4:40
of the video at <http://www.youtube.com/watch?v=_7woWJDk1Qg> (ac-
cessed June 3, 2009).
30 484 M
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statutory authority to resist assuming responsibility for
an insurance company’s unreasonable payouts.
Plaintiff United States Fidelity & Guaranty Com-
pany (USF&G) entered into a consent judgment with
its insured, Daniel Migdal, which resulted in USF&G
paying $54.84 an hour for attendant care services.
12
Plaintiff Hartford Insurance Company of the Midwest
(Hartford) entered into a settlement agreement with its
insured, Robert Allen, which required that Hartford
pay $30 an hour for attendant care services. The MCCA
refused to indemnify USF&G and Hartford beyond a
rate of $22.05 and $20 respectively, rejecting the higher
amounts as “unreasonable.”
Plaintiffs brought these actions seeking declaratory
judgments that the MCCA was required to reimburse
the full rate of attendant care services that they paid
their insureds. The circuit courts entered conflicting
judgments and the aggrieved parties appealed. The
12
The debate here is not whether an insurance company may refuse to
fully compensate a catastrophically injured insured. Indeed, the plaintiff
insurance companies were required to fully compensate their insureds
under USF&G I. The question is whether an insurance company can
agree to overcompensate its insured and escape this burden by having the
rest of Michigan policyholders pay for that bad bargain. This very issue
is well illustrated by the facts of USF&G I itself.
The rate that USF&G pays its insured, Daniel Migdal, to cover costs
associated with his catastrophic injuries is so inflated that his father
(Daniel’s “caregiver”) started a company, Medical Management, to make
a profit from the arrangement. From the $54.84 hourly payments that
USF&G makes, Medical Management pays the nurses (who actually
provide Daniel’s care) an average of $32 an hour ( including benefits!) and
retains the remainder of the USF&G hourly payment for itself. So
inflated was the USF&G payment that, after paying for all of Daniel’s
care, Medical Management earned from this arrangement approximately
$200,000 in profits for 2003. Under the majority’s new opinion, it will be
Michigan policyholders, not USF&G, who will pay for the profits of
Daniel’s father.
2009] USF&G
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Court of Appeals consolidated the appeals and held that
“the MCCA is statutorily required to reimburse an
insurer for 100 percent of the amount that the insurer
paid in PIP [personal protection insurance] benefits to
an insured in excess of the statutory threshold listed in
MCL 500.3104(2), regardless of the reasonableness of
these payments.”
13
The MCCA sought leave to appeal in
this Court, which was granted, and this Court held that
“when a member insurer’s policy only provides cover-
age for ‘reasonable charges,’ the MCCA has authority to
refuse to indemnify unreasonable charges.”
14
Because the composition of this Court changed on
January 1, 2009, USF&G and Hartford sought rehear-
ing
15
and the new majority granted this motion “with-
out further briefing or oral argument.”
16
IV. DISCUSSION
As previously noted, at issue is whether the MCCA
has the authority to refuse to indemnify member insur-
ers for unreasonable payments they make to their
policyholders. I agree with many points of the majori-
ty’s new opinion, but the points of my disagreement are
significant and the results of our differences will be
extremely costly to the citizens of Michigan.
13
United States Fidelity Ins & Guaranty Co v Michigan Catastrophic
Claims Ass’n, 274 Mich App 184, 192; 731 NW2d 481 (2007).
14
USF&G I, supra at 417.
15
In its reply brief filed February 19, 2009, USF&G argued that “this
Court’s practice of granting rehearing requests based on nothing more
than a view of a majority of the Justices that the Court’s original opinion
is incorrect...isasitshould be, given this Court’s status as a court of
last resort.” This statement both ignores Peoples and betrays plaintiffs’
motivation for seeking rehearing.
16
United States Fidelity Ins & Guaranty Co v Michigan Catastrophic
Claims Ass’n, 483 Mich 918 (2009).
32 484 M
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I agree that “personal protection insurance benefits”
are not the same as “personal protection insurance
coverages.”
17
I further agree that “the term ‘coverage’ is
a broader term than ‘benefits.’ ”
18
I particularly agree
with each of the definitions for “coverages” cited by the
new majority.
19
“ ‘[C]overage’ refers to protection af-
forded by an insurance policy or the sum of risks
assumed by an insurance policy.”
20
I disagree, however,
with the new majority’s refusal to interpret “coverages”
consistent with the definitions that it cites—a reference
to the underlying insurance policy.
The majority states its holding: “the indemnification
obligation set forth in MCL 500.3104(2) does not incor-
porate the reasonableness standard that MCL 500.3107
requires between claimants and member insurers.”
21
That is true but unresponsive to this Court’s holding in
17
Ante at 14. Justice W
EAVER
asserts that “the terms ‘benefits’ and
‘coverages’ are related because of their close proximity in the statute....”
Ante at 15. I am unfamiliar with this tenet of statutory construction, and
Justice W
EAVER
offers no authority for it. Indeed, whether separated by two
words or two hundred, I believe that the meaning of “benefits” and
“coverages” are related, but distinct.
18
Ante at 15.
19
Ante at 15, quoting LeBlanc v State Farm Mut Auto Ins Co, 410 Mich
173, 204; 301 NW2d 775 (1981), for the proposition that “ ‘[c]overage’, a
word of precise meaning in the insurance industry, refers to protection
afforded by an insurance policy, or the sum of the risks assumed by a
policy of insurance.” The new majority also cites the following consistent
definitions: (1) the “[e]xtent of protection afforded by an insurance policy
[or the] amount of funds reserved to meet liabilities”; (2) “protection
against a risk or risks specified in an insurance policy”; (3) “the risks
within the scope of an insurance policy”; and (4) the “amount, and extent
of risk covered by insurer.” Ante at 16, quoting Webster’s II New College
Dictionary (1995); Random House Webster’s College Dictionary (2001);
Black’s Law Dictionary (7th ed); and Black’s Law Dictionary (5th ed). See
USF&G I, supra at 431 n 31.
20
USF&G I, supra at 431 n 31 (emphasis added), quoting Jarrad v
Integon Nat’l Ins Co, 472 Mich 207, 217; 696 NW2d 621 (2005).
21
Ante at 6; see also ante at 25.
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USF&G I. This Court did not previously incorporate
the § 3107 standard for personal protection insurance
(PIP) benefits into § 3104(2). Rather, this Court, con-
sistent with the definitions advanced by the majority,
interpreted “coverages” as the “protection afforded by
an insurance policy” and explained that “the member
insurer’s policy will ultimately control the standard for
the MCCA’s review because the policy establishes the
‘personal protection insurance coverages.’ ”
22
Referring to the consent judgment and settlement
agreement at issue, the new majority contends that
“[t]his contractual liability, or coverage, owed by each
insurer is the total amount agreed to between the
original contracting parties.”
23
The fallacy in this asser-
tion is that the consent judgment or settlement agree-
ment is “coverage.” As amply demonstrated by the
definitions that the majority cites, “coverage” refers to
the underlying policy purchased by the insured. That
policy is the only relevant contract. The consent judg-
ment and settlement agreement are separate contrac-
tual, albeit judicially sanctioned, agreements. They are
distinctly not “the no-fault personal protection insur-
22
USF&G I, supra at 430-431; id. at 431 n 31 (“Thus, the terms of the
policy control the standard for the MCCA’s review.”). This fundamental
distinction was underscored by Justice M
ARKMAN
in his concurrence:
The dissent is correct that the reasonableness requirement of
MCL 500.3107 is not integrated into the indemnification clause set
forth in § 3104(2). [USF&G I, supra]at457[(W
EAVER
, J., dissent-
ing)]. However, the majority opinion does not attempt to incorpo-
rate this requirement into the MCCA’s statutory power to review
a member insurer’s claim to ensure it is in compliance with the
policy. Rather, it holds that the MCCA can review a member’s
claim for compliance with the policy, which, as represented by both
parties, generally includes a requirement that member insurers
reimburse only reasonable claims based on § 3107. [USF&G I,
supra at434n1(M
ARKMAN
, J., concurring).]
23
Ante at 16 (emphasis added).
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ance coverages that are generally the subject of the act,
i.e., those which were written in this state to provide
the compulsory security requirements of § 3101(1) of
the no-fault act for the ‘owner or registrant of a motor
vehicle required to be registered in this state’....”
24
Because the majority offers no principled rationale for
departing from the definitions that it cites or this
Court’s prior interpretation of “personal protection
insurance coverages,” I must respectfully dissent.
The majority makes additional erroneous assertions.
First, the majority asserts that member insurers will
have an incentive to make reasonable settlements of
catastrophic claims because, if they do not, the MCCA
premiums will increase.
25
The majority appears un-
aware of how incentives, or the MCCA, work. The
premium that the MCCA charges to cover the liabilities
it must statutorily assume is evenly distributed among
the member insurers
26
and then passed on to those who
24
In re Certified Question (Preferred Risk Mut Ins Co v Michigan
Catastrophic Claims Ass’n), 433 Mich 710, 723; 449 NW2d 660 (1989).
See also USF&G I, supra at 437-439 (M
ARKMAN
, J., concurring) (explain-
ing that the consent judgment and settlement agreement are not part of
the member insurer’s “coverages” because “[a] member insurer that
informs the MCCA that it will only pay ‘reasonable’ claims, but then
subsequently modifies the policy after the accident occurs to include
unreasonable claims, has essentially sought reimbursement for claims for
which it has not paid premiums”).
25
Ante at 17 n 19.
26
See MCL 500.3104(7)(d), which provides in pertinent part:
Each member shall be charged an amount equal to that
member’s total written car years of insurance providing the
security required by [MCL 500.3101(1)] or [MCL 500.3103(1)], or
both, written in this state during the period to which the premium
applies, multiplied by the average premium per car. The average
premium per car shall be the total premium calculated divided by
the total written car years of insurance providing the security
required by section 3101(1) or 3103(1) written in this state of all
members during the period to which the premium applies.
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buy no-fault insurance.
27
Indeed, this Court has been
informed that in response to the order granting rehear-
ing in this case, the MCCA raised its rates by 19 percent
per policy (or $693.8 million more for MCCA assess-
ments in the aggregate for this year) to create the
reserves necessary to pay the more expansive claims for
unreasonable charges that the new majority’s opinion
permits. Contrary to the new majority’s belief that an
insurer will have an economic incentive to bargain for
“reasonable” payments to its insureds, the majority
opinion will have the perverse effect of eliminating an
insurer’s incentive to negotiate reasonable settlements.
Indeed, instead of providing insurers a protective shield
against unreasonable catastrophic claims, the majority
opinion provides no-fault plaintiffs’ attorneys a lethal
sword against an insurer that insists on a reasonable
settlement. MCL 500.3148(1) provides that a claimant’s
attorney fee is charged to the insurer “if the court finds
that the insurer unreasonably refused to pay the claim
or unreasonably delayed in making proper payment.”
Under the majority’s decision, an insurer has no reason
to refuse any claim; thus, a claimant’s attorney can use
the threat of attorney fees to force an insurer into an
unreasonable settlement.
28
Under the majority’s deci-
sion, insurers will be encouraged to negotiate unreason-
27
See USF&G I, supra at 432 n 32; In re Certified Question, supra at
729 (explaining that the MCCA premiums are “inevitably” “passed on” to
Michigan’s no-fault insurance customers); MCL 500.3104(22) (which
provides that “[p]remiums charged members by the association shall be
recognized in the rate-making procedures for insurance rates in the same
manner that expenses and premium taxes are recognized”).
28
The MCCA provided a useful hypothetical conversation between a
future plaintiff’s no-fault attorney and an insurer:
[Attorney]: I know that amount is a bit high for attendant care,
but that is what we want. We’ll sue to get it and we’ll seek attorney
fees and penalties too. [MCL 500.3148(1)] Do you want that?
36 484 M
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able settlements and pass these off onto the MCCA. As
stated, any liability that the MCCA must assume is
eventually passed on to anyone in Michigan who must
buy auto insurance.
Perhaps the majority can explain why the legislative
method for containing costs for Michigan’s no-fault
insurance customers is an inferior purpose to their
preferred policy objective. In particular, why is it an
inferior purpose at a time when the Governor has
requested an auto insurance rate freeze
29
and unem-
ployment in Michigan has exceeded 14 percent?
30
My point is not that our decision should be premised
on keeping no-fault insurance affordable. Indeed, I
maintain that such “ ‘[p]olicy decisions are properly left
for the people’s elected representatives in the Legisla-
ture’ ”
31
and that the Legislature has made the policy
decision in this case. Rather, I raise this issue because
elections matter. The majority has seen fit to engage in
its own policy-making while relying on erroneous as-
sumptions. This is a lethal combination that will result
in harmful, unintended consequences. While it may be
Insurer: Of course not, but that amount is unreasonable.
[Attorney]: What does reasonable have to do with it? [The]
MCCA has to pay you regardless. Do you want to incur three times
that amount in attorney fees instead?
Insurer: Of course not.
29
See Executive Directive No. 2009-1.
30
See Louis Aguilar, Michigan’s jobless rate 14.1%, highest since ’83,
Detroit News, June 18, 2009; Heather Lockwood, State jobless rate of
14.1% is highest—since July ’83, Lansing State Journal, June 18, 2009,
available at <http://www.lansingstatejournal.com/atricle/20090618/
NEWS01/906180327> (accessed June 28, 2009).
31
USF&G I, supra at 432 n 32, quoting Devillers v Auto Club Ins Ass’n,
473 Mich 562, 589; 702 NW2d 539 (2005).
2009] USF&G
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politically expedient to position oneself as “looking out
for the little guy,”
32
this case is an excellent example of
how acting on such an altruistic impulse rather than
applying the law results in a negative consequence for
the vast majority of our citizens. In this context, each of
us who must purchase this mandatory no-fault coverage
is a “little guy.”
33
Second, the majority emphasizes that the MCCA
may only adjust a member insurer’s “practices and
procedures.”
34
The majority then immediately (and
inconsistently but accurately) concedes that MCL
500.3104(7)(g) permits the MCCA to “adjust or assist in
the adjustment of claims” and “[w]hen the MCCA
asserts its power to adjust or assist in the adjustment of
a claim, the MCCA effectively steps into the shoes of the
32
See, e.g., Todd C. Berg, Hathaway attacks, but sketchy on incumbent’s
record, Michigan Lawyers Weekly, October 7, 2008, p 14 (“The center-
piece of Hathaway’s campaign against Taylor has been her claim that he
rules against middle-class families and in favor of ‘big insurance compa-
nies and corporate special interests.’ ”); Todd C. Berg, Hathaway’s
campaign pledge may support MSC office closure, Michigan Lawyers
Weekly, December 15, 2008,p1(“Justice-elect Diane M. Hathaway ran
for the Michigan Supreme Court on the platform that she would stand up
for middle-class families and oppose the lavish perks and benefits that
Supreme Court justices were bestowing on themselves.”).
33
The exception, of course, is the lawyer who makes a living doing
no-fault insurance work. For such practitioners, the majority’s opinion
creates a new submarket of opportunity. See note 28 of this opinion.
34
Ante at 21-22. See MCL 500.3104(7)(g), which provides that the
MCCA shall
[e]stablish procedures for reviewing claims procedures and prac-
tices of members of the association. If the claims procedures or
practices of a member are considered inadequate to properly
service the liabilities of the association, the association may
undertake or may contract with another person, including another
member, to adjust or assist in the adjustment of claims for the
member on claims that create a potential liability to the associa-
tion and may charge the cost of the adjustment to the member.
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member insurer.”
35
I previously agreed with these
propositions.
36
Thus, I struggle to comprehend for what
purpose the majority resists the simple proposition that
the MCCA is statutorily authorized to adjust claims.
Third, “[p]laintiffs argue[d] that if the MCCA may
reject member insurer claims on the basis of the
reasonableness of the charges, member insurers will
need to seek assurances that the MCCA will reim-
burse certain payments before making them, thus
delaying payment.”
37
The prospect of delayed payment
seems to be a primary concern that drives the new
majority’s analysis. In support of its construction, it
contends:
If this Court were to accept the MCCA’s argument, the
logical consequence would be that member insurers would
be reluctant to settle with the claimant. Member insurers
might then force a jury trial with every catastrophically
injured claimant in order to secure a verdict with a
“reasonable” stamp on the result.
[
38
]
The majority employs this policy-based rationale to
depart from its own definitions of “coverages” be-
cause otherwise “[t]his outcome goes against the
legislative purpose of ensuring efficient and quick
recovery for claimants in the no-fault system.”
39
The
majority fails to explain, however, how its alternative
construction actually resolves the issue. In fact, it does
not.
The majority concedes that the MCCA has authority
to “requir[e] submission of proposed settlement agree-
35
Ante at 22 n 24.
36
USF&G I, supra at 430 n 30.
37
Id.at432n32.
38
Ante at 19.
39
Ante at 19.
2009] USF&G
V
MCCA (O
N
R
EHEARING
) 39
D
ISSENTING
O
PINION BY
Y
OUNG
,J.
ments for approval....”
40
This is the very outcome that
the plaintiff insurance companies here sought to avoid.
Indeed, I believe that “requiring submission of proposed
settlement agreements” or “seeking assurances that the
MCCA will reimburse certain payments” would have been
a natural consequence of USF&G I, because it actually
gave meaning to the plain language of this statute. The
MCCA is likely to act on the majority’s advice (indeed, it
should) and mandate that member insurers afford it the
opportunity to object to proposed settlements or other
agreements before they become binding. Ironically, it ap-
pears that even the majority does not deny that the MCCA
has this statutory power.
Thus, the issue of delay is not resolved by the majority’s
opinion. Moreover, the majority’s opinion does not address
circumstances, like the present cases, where the MCCA
was not afforded an opportunity to reject the agreements,
which likely explains the $693.8 million bill that will be
passed onto and shared by every Michigan automobile
owner because of the increased and uncontrolled liability
that the new majority’s opinion will create for the MCCA.
We, as jurists, are ill-prepared to make complicated
policy-based judgments unrelated to the policy choices
that the Legislature has enacted. We do the least
damage when we merely follow the Legislature’s lead by
giving the words of a statute a plain reading and enforc-
40
Ante at 22. The majority acknowledges this authority within the
context of reading MCL 500.3104(7)(g) in conjunction with § 3104(7)(b),
which provides that the MCCA shall
[e]stablish procedures by which members shall promptly report to
the association each claim that, on the basis of the injuries or
damages sustained, may reasonably be anticipated to involve the
association if the member is ultimately held legally liable for the
injuries or damages. Solely for the purpose of reporting claims, the
member shall in all instances consider itself legally liable for the
injuries or damages. The member shall also advise the association of
subsequent developments likely to materially affect the interest of the
association in the claim. [Emphasis added.]
40 484 M
ICH
1 [July
D
ISSENTING
O
PINION BY
Y
OUNG
,J.
ing the statute as written. “The Legislature, unlike the
judiciary, is institutionally equipped to assess the nu-
merous trade-offs associated with a particular policy
choice.”
41
The Legislature has made difficult choices, and
it used particular words with particular meanings to
convey those choices. Our prior opinion respected our role
as jurists, and the Legislature’s role as policy-maker, by
interpreting the relevant statutory language in a manner
consistent with the plain meaning of the words chosen by
the Legislature. In an effort to avoid the meaning of the
words chosen by the Legislature, the new majority has
engaged in a wandering, policy-based analysis that is as
flawed as it is misguided. It is an expensive mistake for
which every policyholder in Michigan will pay.
Undeterred and aiming to quell the likely negative
response to its policy-based decision, the new majority
asserts that my concerns “appear[] highly speculative and,
indeed, unfounded.”
42
My concerns will cease to be
“highly speculative” and “unfounded” when they are
reflected in the MCCA’s annual assessments. Michigan
drivers will soon receive their no-fault insurance bills (I
have received mine) with the updated higher MCCA
assessment for the fiscal year beginning July 1, 2009. At
that point, Michigan drivers will be free to determine
for themselves whether my concerns are sound and
based in reality.
Accordingly, I respectfully dissent.
C
ORRIGAN
, J., concurred with Y
OUNG
,J.
41
Devillers, supra at 589. Indeed, the new majority’s response to my
dissent underscores this point. The new majority asserts that “there is no
evidence that defendant has routinely or even occasionally challenged the
reasonableness of insurers’ settlements” and “it is unknown whether the
actuarial assessment factored in the effect of defendant’s potential use of
[MCL 500.3104(7)(g)].” Ante at 24. The Legislature, unlike this Court,
has the means to obtain the answers to those questions.
42
Ante at 23.
2009] USF&G
V
MCCA (O
N
R
EHEARING
) 41
D
ISSENTING
O
PINION BY
Y
OUNG
,J.
42 484 M
ICH
1 [July
D
ISSENTING
O
PINION BY
Y
OUNG
,J.
2009] USF&G
V
MCCA (O
N
R
EHEARING
) 43
D
ISSENTING
O
PINION BY
Y
OUNG
,J.
M
ARKMAN
,J.(dissenting). I concur fully with the
discussion in part IV of Justice Y
OUNG
’s dissenting
opinion and therefore also dissent.
44 484 M
ICH
1 [July
D
ISSENTING
O
PINION BY
M
ARKMAN
,J.
Motion for Recusal Denied July 21, 2009:
U
NITED
S
TATES
F
IDELITY
&G
UARANTY
C
OMPANY
vM
ICHIGAN
C
ATASTROPHIC
C
LAIMS
A
SSOCIATION
, No. 133466,
and H
ARTFORD
I
NSURANCE
C
OMPANY OF THE
M
IDWEST
v
M
ICHIGAN
C
ATASTROPHIC
C
LAIMS
A
SSOCIATION
, No. 133468.
On order of the Court, the motion for recusal is
considered, and it is denied.
H
ATHAWAY
, J. On March 27, 2009, this Court issued
an order granting rehearing in this matter.
1
Since that
time, defendant Michigan Catastrophic Claims Associa-
tion (MCCA) has filed a motion asking me to recuse
myself. The nature of the objection is well described in
the parties’ briefs and responses thereto.
2
I have re-
viewed these pleadings in detail.
I have also had an opportunity to review Caperton v
A T Massey Coal Co, Inc, 556 US __ ; 129 S Ct 2252; 173
L Ed 2d 1208 (2009), and the briefs filed by the parties
regarding this new decision. In reviewing whether there
was a due process violation in the refusal of Justice
Benjamin
3
to disqualify himself, the United States Su-
preme Court held as follows:
We conclude that there is a serious risk of actual bias—
based on objective and reasonable perceptions—when a per-
son with a personal stake in a particular case had a significant
and disproportionate influence in placing the judge on the
1
United States Fidelity Ins & Guaranty Co v Michigan Catastrophic
Claims Ass’n, 483 Mich 918 (2009).
2
The motion and related documents, including all the briefs of the
parties and the amici curiae, may be viewed at <http:
//courts.michigan.gov/supremecourt/Clerk/10-08/133466-133468/133466-
133468-Index.htm>.
3
Justice Benjamin sits on the West Virginia Supreme Court of Appeals
and had received in excess of $3 million in financial support to his
campaign from the individual who was chairman, chief executive officer,
and president of the defendant in the case before him.
2009] USF&G
V
MCCA (O
N
R
EHEARING
) 45
S
EPARATE
O
RDER
case by raising funds or directing the judge’s election cam-
paign when the case was pending or imminent....
***
Our decision today addresses an extraordinary situation
where the Constitution requires recusal. Massey and its
amici predict that various adverse consequences will follow
from recognizing a constitutional violation here—ranging
from a flood of recusal motions to unnecessary interference
with judicial elections. We disagree. The facts now before us
are extreme by any measure. The parties point to no other
instance involving judicial campaign contributions that pre-
sents a potential for bias comparable to the circumstances in
this case. [Id., slip op at 14, 16-17 (emphasis added).]
Given this test, I find no arguable due process
violation in the cases before me. There is nothing
alleged by the MCCA that would cause any reasonable
person to believe that there is a significant and dispro-
portionate influence being asserted upon me under any
objective analysis.
Despite the theories proffered by the MCCA, my
husband has no connection to or financial interest in
this matter. He is not an attorney for or employee of
any party, nor is he a litigant in either of these cases.
He has no relationship with either the attorneys or
the litigants in these cases. The MCCA asserts that,
because my spouse has handled cases in the field of
no-fault insurance law, I must recuse myself. How-
ever, this assertion suggests a basis for recusal that is
so attenuated from the facts of these cases that it
strains reasoned logic.
This is not to say that parties should be impeded from
bringing such motions. However, not every hypothetical
theory proffered by a litigant must be accepted as accurate
or controlling. The issue to be decided is one of due
process. Any alleged due process claim must be evaluated
46 484 M
ICH
1 [July
S
EPARATE
O
RDER
by an objective standard. Due process does not require
that a justice recuse himself or herself merely because the
justice’s spouse or child is an attorney practicing in the
field of law that is involved in the disputed case, just as
due process would not require a justice’s recusal in all
medical malpractice cases merely because the justice’s
spouse is a physician or require a justice’s recusal in all
cases involving school systems merely because the jus-
tice’s spouse is a teacher.
In conclusion, I have no personal bias or prejudice for
or against any party in this matter. Moreover, neither I
nor any member of my immediate family has any real or
arguable financial interest in this case. The allegations
made by the MCCA are not a basis for recusal because
there is no appearance of impropriety and no due
process violation. Accordingly, there is no reason to
recuse myself.
4
Having carefully considered this motion
for recusal, I deny it.
5
K
ELLY
, C.J., and C
AVANAGH
, J. We concur with the
statement of Justice H
ATHAWAY
.
W
EAVER
, J. I agree with Justice H
ATHAWAY
’s denial of
the recusal motion because due process is not violated
in this case.
4
Currently, there are no rules governing the recusal of justices. On
March 18, 2009, a majority of this Court voted to publish for comment
various proposals for rules that would govern the recusal of justices. 483
Mich 1205 (2009). Until such time as comprehensive rules governing the
recusal of justices in Michigan are adopted, I will follow this Court’s
current practice whereby the justice from whom recusal is sought decides
the motion for recusal. Michigan’s current recusal practice is the same as
that of the United States Supreme Court, and there is no indication in
Caperton that this practice violates due process.
5
While I do not acquiesce to the statements of Justices C
ORRIGAN
,
M
ARKMAN
, and Y
OUNG
, I will not participate in this Court’s practice of
engaging in responses to comments of others that are inappropriate and
unnecessary. This Court should discontinue devoting the state’s limited
resources to unproductive colloquy.
2009] USF&G
V
MCCA (O
N
R
EHEARING
) 47
S
EPARATE
O
RDER
I take this opportunity to provide some history on the
issue of disqualification in this Court. Since 2003, I have
raised the issue of the need for clear, written, and fair
disqualification rules for Michigan Supreme Court jus-
tices,
1
but the “majority of four” (former Chief Justice
T
AYLOR
and Justices C
ORRIGAN
,Y
OUNG
, and M
ARKMAN
)
refused to address the issue. When this Court looked at
the issue of disqualification in 2006, the “majority of
four” refused to publish proposed disqualification rules
formulated by members of this Court.
In March of this year, after former Chief Justice
T
AYLOR
’s removal from this Court as a result of his
overwhelming defeat in the 2008 election, the “remain-
ing three” (Justices C
ORRIGAN
,Y
OUNG
, and M
ARKMAN
)
voted against publishing proposed rules for disquali-
fication. Fortunately, a majority voted in March to
publish, for public comment until August 1, 2009,
1
See, e.g., the statements or opinions by W
EAVER
, J., in In re JK, 468
Mich 202, 219 (2003); Gilbert v DaimlerChrysler Corp, 469 Mich 883
(2003); Advocacy Org for Patients & Providers v Auto Club Ins Ass’n, 472
Mich 91, 96 (2005); McDowell v Detroit, 474 Mich 999, 1000 (2006);
Stamplis v St John Health Sys, 474 Mich 1017 (2006); Heikkila v North
Star Trucking, Inc, 474 Mich 1080, 1081 (2006); Lewis v St John Hosp,
474 Mich 1089 (2006); Adair v Michigan, 474 Mich 1027, 1044 (2006);
Grievance Administrator v Fieger, 476 Mich 231, 328 (2006); Grievance
Administrator v Fieger, 477 Mich 1228, 1231 (2006); People v Parsons,
728 NW2d 62 (2007); Ruiz v Clara’s Parlor, Inc, 477 Mich 1044 (2007);
Neal v Dep’t of Corrections, 477 Mich 1049 (2007); State Automobile Mut
Ins Co v Fieger, 477 Mich 1068, 1070 (2007); Ansari v Gold, 477 Mich
1076, 1077 (2007); Short v Antonini, 729 NW2d 218, 219 (2007);
Flemister v Traveling Med Services, PC, 729 NW2d 222, 223 (2007);
McDowell v Detroit, 477 Mich 1079, 1084 (2007); Johnson v Henry Ford
Hosp, 477 Mich 1098, 1099 (2007); Tate v City of Dearborn, 477 Mich
1101, 1102 (2007); Dep’t of Labor & Economic Growth v Jordan, 480
Mich 869 (2007); Cooper v Auto Club Ins Ass’n, 739 NW2d 631 (2007);
and Citizens Protecting Michigan’s Constitution v Secretary of State, 482
Mich 960 (2008).
Also see my personally funded website, www.justiceweaver.com.
48 484 M
ICH
1 [July
S
EPARATE
O
RDER
three proposals for rules of disqualification
2
to be
considered at a public hearing later in 2009. Of the
proposals published by this Court in March, I note that
Alternative C sufficiently provides the due process protec-
tions laid out by the United States Supreme Court in the
recent decision of CapertonvATMassey Coal Co, Inc,
556 US ___ ; 129 S Ct 2252; 173 L Ed 2d 1208 (2009).
I also note that the United States Supreme Court’s
Caperton
3
discussion of disqualification with regard to
campaign contributions for justice elections raises further
issues with regard to due process concerns. Currently, this
Court has no rules providing for a justice’s disclosure of
campaign contributions when parties to cases, or the
parties’ immediate family members, contribute significant
amounts of money, directly or indirectly, to a justice’s
campaign.
4
Hopefully this Court, the Legislature, and/or
the public will create disclosure rules that will ensure the
protection of due process rights.
C
ORRIGAN
, J. I would not resolve the recusal motion of
defendant Michigan Catastrophic Claims Association
(MCCA) at this time. Rather, I would order supplemen-
tal briefing of the application of CapertonvATMassey
Coal Co, Inc, 556 US ___ ; 129 S Ct 2252; 173 L Ed 2d
1208 (2009) (Caperton), to these cases. Caperton ad-
dressed the disqualification of a judge when a party
alleges that the judge’s interest in a case requires
recusal under the Due Process Clause of the federal
2
These three proposals are the same proposals that the “majority of
four” refused to publish in 2006.
3
Justices C
ORRIGAN
and Y
OUNG
and former Chief Justice T
AYLOR
filed an
amicus curiae brief in the Caperton case in opposition to the plaintiff
Caperton’s ultimately successful appeal.
4
Beyond due process issues involving campaign contributions, I fur-
ther note that this Court does not have rules ensuring due process by
requiring disclosure by justices of their former representation as attor-
neys of parties appearing before the Court, regardless of how far in the
past the representation may have been.
2009] USF&G
V
MCCA (O
N
R
EHEARING
) 49
S
EPARATE
O
RDER
constitution. To weigh whether recusal is required,
Caperton requires an assessment of whether a serious,
objective risk of actual bias exists that requires the
judge to recuse himself or herself. Because the MCCA
argues that Justice H
ATHAWAY
’s participation in these
cases violates its federal due process rights, Caperton is
relevant and could prove controlling. Indeed, the MCCA
has submitted Caperton to this Court as supplemental
authority in support of its motion.
The scope of Caperton and how courts will implement it
present significant unanswered questions, particularly for
our Court. Caperton held that a state supreme court
justice was disqualified from hearing a case involving a
corporate party whose chairman and CEO had expended
$3 million to support the justice’s campaign, although the
individual expended this money independently and
through donations to an independent political group.
Caperton, 129 S Ct at 2257. The Court concluded that the
justice was disqualified although he professed that the
funds were solicited and expended without his knowledge,
direction, or control under state election laws very similar
to our own. See CapertonvATMassey Coal Co, Inc, 223
W Va 624, 703-705; 679 SE2d 223 (2008) (W Va Caperton)
(Benjamin, acting C.J., concurring). Indeed, Michigan al-
lows independent political groups to expend unlim-
ited money during elections, often without being
required even to reveal their funding sources.
1
For
example, during the 2008 election cycle, independent
1
The Michigan Campaign Finance Act, MCL 169.201 et seq., does
not regulate certain expenditures, including those “for communica-
tion on a subject or issue if the communication does not support or
oppose a ballot question or candidate by name or clear inference.”
MCL 169.206(2)(b). See also Right to Life of Michigan, Inc v Miller,23
F Supp 2d 766, 767 (WD Mich, 1998), quoting Buckley v Valeo, 424 US
1,44&n52(1976) (observing that Michigan is prohibited from
50 484 M
ICH
1 [July
S
EPARATE
O
RDER
expenditures aimed at the race for Justice H
ATHAWAY
’s
current seat on this Court topped $3.75 million.
2
For these reasons, in my view, deciding the MCCA’s
recusal motion within days of Caperton is precipitous.
Caperton was released on June 8, 2009. We have hardly
had time to digest the opinion, much less its ramifica-
tions, particularly given that the opinion is positively
Delphic in explaining the standards for courts attempt-
ing to implement it. Four justices of this Court now
vote, without any explanation or the benefit of fact-
finding, to support Justice H
ATHAWAY
’s decision to par-
ticipate in these cases. Thus, although we have had
little time to study Caperton and do not have the benefit
regulating speech protected by the “express advocacy” test established in
Buckley, which permits regulation only of “communications that ‘in express
terms advocate the election or defeat of a clearly identified candidate,’ ” such
as those employing “ ‘express words of advocacy of election or defeat, such as
“vote for,” “elect,” “support,” “cast your ballot for,” “Smith for Congress,”
“vote against,” “defeat,” “reject” ’ ”); Planned P arenthood Affiliates of
Michigan, Inc v Miller, 21 F Supp 2d 740, 745 (ED Mich, 1998) (noting that
Michigan is prohibited under Buckley from regulating “issue advocacy”).
Therefore, in practice, many major expenditures, including those for televi-
sion ads, are not covered by our reporting laws. See Michigan Campaign
Finance Network, 2008 Citizen’s Guide to Michigan Campaign Finance, p
14 <http://www.mcfn.org/pdfs/reports/MCFNCitGuide08.pdf> (accessed
June 18, 2009) (hereinafter “MCFN Citizen’s Guide”) (“[A]dvertisements
that define[] the character and qualifications of the candidates without
explicitly exhorting a vote for or against either candidate” are “not consid-
ered to be campaign expenditures and the sources of money that paid for the
ads are not required to be disclosed.”). Accordingly, although a major
expenditure may ultimately benefit a candidate, the expenditure—and its
funding sources—may be outside the candidate’s awareness and control.
Further, even regulated “independent expenditures” by third parties, which
must be reported if they support a candidate, must be made without the
direction or control of the candidate. MCL 169.209(2); MCL 169.251.
2
MCFN Citizen’s Guide, p 14; see also Michigan Campaign Finance
Network, Anonymous donors dominated Supreme Court campaign, No-
vember 19, 2008 <http://www.mcfn.org/press.php?prId=77> (accessed
June 18, 2009) (“More than 60 percent of spending for the Michigan
Supreme Court campaign between incumbent Chief Justice Clifford
Taylor and Judge Diane Marie Hathaway will not be disclosed in any
campaign finance report because it paid for candidate-focused ‘issue’
advertising.”).
2009] USF&G
V
MCCA (O
N
R
EHEARING
) 51
S
EPARATE
O
RDER
of briefing on it, the Court proceeds essentially to hold
that such a vote is a mandatory procedure for all recusal
motions raising due process concerns.
3
THE MCCA’S MOTION FOR RECUSAL
The most relevant aspects of the MCCA’s motion fol-
low. A fter this Court issued its March 2009 decision to
grant reconsideration
4
of its December 2008 decision,
5
occasioned by newly elected Justice H
ATHAWAY
’s partici-
3
This occurs although Caperton has sparked much debate concerning its
application. For example, Michigan Lawyers Weekly quoted former Michi-
gan State Supreme Court Chief Justice C
LIFFORD
T
AYLOR
as stating that
Caperton “ ‘has to mean that the challenged justice can’t make the recusal
decision alone.’ ” MSC recusal rule may not be constitutional, Michigan
Lawyers Weekly, June 15, 2009, p 23. Chief Justice K
ELLY
also asserted, in a
recent press release, that Caperton “ ‘signals that we do need to have
appropriate protections in place’ ” and “will assist the Michigan Supreme
Court as it develops its own disqualification rules for justices.” Michigan
Supreme Court, Office of Public Information, Caperton ruling by U.S.
Supreme Court highlights importance of fair and impartial justice, says
Michigan Supreme Court Chief Justice Marilyn Kelly, June 9, 2009
<http://courts.michigan.gov/supremecourt/Press/060909-CapertonDQ.pdf>
(accessed June 18, 2009). Wayne County Assistant Prosecuting Attorney
Timothy Baughman, on the other hand, “[r]espectfully” but “heartily”
disagreed with former Chief Justice T
AYLOR
’s comments, asserting in a
Michigan Lawyers Weekly Viewpoint comment:
Caperton is a case about standards and not about the identity
of the decision-maker....
***
Nothing in Caperton requires that the decision on a recusal
motion be reviewed by another justice or body of justices. For the
Michigan Supreme Court [to continue] to follow the practice of the
U.S. Supreme Court is perfectly permissible, so long as a system of
“objective rules” exists. [‘Caperton’ was about recusal standards,
not decision maker, Michigan Lawyers Weekly, June 22, 2009, p 7.]
4
United States Fidelity Ins & Guaranty Co v Michigan Catastrophic
Claims Ass’n, 483 Mich 918 (2009).
5
United States Fidelity Ins & Guaranty Co v Michigan Catastrophic
Claims Ass’n, 482 Mich 414 (2008).
52 484 M
ICH
1 [July
S
EPARATE
O
RDER
pation in these cases, the MCCA moved for her recusal.
Specifically, the MCCA argues that Justice H
ATHAWAY
’s
husband, Michael Kingsley, has an interest that could
be substantially affected by the outcome of the proceed-
ings because he is a practicing plaintiffs’ no-fault attor-
ney in Michigan. As such, he has a direct interest that is
more than de minimis in the MCCA’s unlimited obliga-
tions to reimburse insurers for personal protection
insurance benefits paid to insureds who have been
catastrophically injured in automobile accidents.
6
The
MCCA further asserts that it reimburses insurers for
payments made to Kingsley’s clients, having made such
6
The MCCA has an unlimited statutory obligation to reimburse insurers
for 100 percent of claims paid to insureds whose losses due to personal injury
exceed certain statutory caps; the current cap is $460,000. MCL
500.3104(2)(i) and (7)(a). As is further explained by Justice Y
OUNG
, post at
62, the MCCA asserts that reversal of this Court’s prior opinion on rehearing
will require the MCCA to reimburse all benefits paid by insurers to their
catastrophically injured insureds, without regard to the reasonableness of
the insured’s underlying expenditures. Accordingly, the MCCA states that
its insurer members will have little incentive to defend unreasonable claims
by their insureds; no matter how unreasonable the expenditure—at issue in
one of these cases, for example, are an insured’s expenditures of $54.84 an
hour for attendant care services—if the insurer accepts its insured’s claim,
the MCCA will be obligated to reimburse the insurer in full. The MCCA
asserts: “With a guarantee of MCCA reimbursement, coupled with the lure
of saving legal defense costs, members will have a strong motive to settle
[personal protection insurance] claims early and with little or no resistance.”
It concludes: “This directly benefits lawyers like Mr. Kingsley who represent
plaintiffs in no-fault automobile insurance cases, and who typically receive
their fees out of the proceeds of settlements.” To illustrate, the MCCA has
provided a hypothetical conversation between a future plaintiff’s attorney
and an insurer:
[Attorney]: “I know that amount is a bit high for attendant
care, but that is what we want. We’ll sue to get it and we’ll seek
attorney fees and penalties too. [See MCL 500.3148(1).] Do you
want that?”
Insurer: “Of course not, but that amount is unreasonable.”
[Attorney]: “What does reasonable have to do with it? [The]
MCCA has to pay you regardless. Do you want to incur three times
that amount in attorney fees instead?”
2009] USF&G
V
MCCA (O
N
R
EHEARING
) 53
S
EPARATE
O
RDER
a reimbursement as recently as April 9, 2009.
7
The
MCCA’s obligation to reimburse insurers—and the poten-
tial resulting benefits to plaintiffs’ attorneys—is directly
at issue in these cases. Indeed, the MCCA asserts that it
has raised the amounts needed to pay expected claims and
its reserves by almost $694 million in anticipation of this
Court’s likely reversal on rehearing of its prior deci-
sion, stemming from the participation of newly
elected Justice H
ATHAWAY
in the decision after rehear-
ing. The MCCA further states that this increase is the
primary cause of the 19 percent increase in its assess-
ments for catastrophic coverage this year, which affects all
no-fault insurance policy holders’ rates. The MCCA claims
that if , on rehearing, this Court prohibits the MCCA from
engaging in a “reasonableness” inquiry, seen6ofthis
statement, attorneys will reap the rewards at the expense
of Michigan drivers, whose insurance rates will rise to
support the resulting increased systemic costs.
8
Insurer: “Of course not.”
7
MCR 2.003(B)(5) provides in part that a judge is disqualified from
hearing a case if “the judge’s spouse... has an economic interest in the
subject matter in controversy...orhasanyother more than de minimis
interest that could be substantially affected by the proceeding.” MCR
2.003(B)(6)(c) also provides that a judge is disqualified if the “judge or the
judge’s spouse...isknown by the judge to have a more than de minimis
interest that could be substantially affected by the proceeding[.]” Similarly,
the United States Supreme Court requires recusal with regard to a justice’s
spouse if “ ‘the amount of the relative’s compensation could be substantially
affected by the outcome’....”SeeAdair v Michigan, 474 Mich 1027, 1031
(2006) (statement of T
AYLOR
, C.J., and M
ARKMAN
, J.), quoting the United
States Supreme Court’s Statement of Recusal Policy, November 1, 1993.
8
No-fault automobile negligence cases remain a dominant factor in
Michigan civil filings every year. Of the 46,216 new civil filings in
Michigan circuit courts in 2008, 8,477—or more than one-fifth of all civil
cases—were automobile related. See 2008 Annual Report of the Michigan
Supreme Court, p 30 <http://www.courts.michigan.gov/scao/resources/
publications/statistics/2008/2008execsum.pdf> (accessed June 18, 2009).
Further, because many, if not most, no-fault claims settle out of court, the
number of claims potentially affected by this Court’s ruling is much
higher than the number of cases filed.
54 484 M
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THE CAPERTON DECISION
In Caperton, the United States Supreme Court “under-
score[d] the need for objective rules” and asserted that the
Due Process Clause requires recusal motions to be decided
“by objective standards that do not require proof of actual
bias.” Caperton, 129 S Ct at 2263. In concluding that
recently elected West Virginia Supreme Court of Appeals
Justice Brent Benjamin was disqualified from hearing the
underlying case as a result of substantial campaign expen-
ditures by the chairman, CEO, and president of the
respondent company, A. T. Massey Coal Co., Inc., the
Court held that “[d]ue process requires an objective in-
quiry” to establish whether the circumstances “ ‘would
offer a possible temptation to the average...judge to...
lead him not to hold the balance nice, clear and true.’ ” Id.
at 2264, quoting Tumey v Ohio, 273 US 510, 532 (1927).
Significantly, the Court thus considered the purported
facts underlying the motion for recusal, see Caperton, 129
S Ct at 2264,
9
and concluded, on the basis of its assess-
ment of those facts, that “there was . . . a serious,
objective risk of actual bias,” id. at 2265.
QUESTIONS RAISED BY CAPERTON
In light of the Caperton opinion, I do not think that
we can resolve the MCCA’s recusal motion—which
squarely raises due process concerns—without first
addressing the following questions:
• Does this Court’s historical recusal practice—
which permits each justice to decide motions for his or
her recusal and which Justice H
ATHAWAY
follows here—
comport with the Caperton Court’s requirement for
objective standards? Justice H
ATHAWAY
states: “[N]ei-
ther I nor any member of my immediate family has any
9
Somewhat confusingly, the Court considered the purported facts under-
lying the recusal motion, but also conceded that there was “no procedure for
judicial factfinding....”Caperton, 129 S Ct at 2264.
2009] USF&G
V
MCCA (O
N
R
EHEARING
) 55
S
EPARATE
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RDER
real or arguable financial interest in this case. The
allegations made by the MCCA are not a basis for
recusal because there is no appearance of impropriety
and no due process violation.” Ante at 47. She adds:
“Given [the Caperton] test, I find no arguable due
process violation in the cases before me. There is
nothing alleged by the MCCA that would cause any
reasonable person to believe that there is a significant
and disproportionate influence being asserted upon me
under any objective analysis.” Ante at 46. But the
challenged justice in Caperton issued similar state-
ments in which he declined to recuse himself, explain-
ing that the moving party had provided no objective
evidence of actual bias and expressing his subjective
opinion that none of his motives were improper. Caper-
ton, 129 S Ct at 2262-2263. Indeed, West Virginia’s
recusal rules are strikingly similar to the practice
followed by this Court. See W Va Caperton, supra at 702.
Like Justice H
ATHAWAY
—albeit while providing exten-
sive factual detail concerning the allegations against
him and legal precedent on the subject of recusal—
Justice Benjamin asserted: “I have no pecuniary inter-
est in the outcome of this matter. . . . I have no personal
involvement with nor harbor any personal antipathy
toward any party or counsel herein.” Id. at 697. He
added: “[N]o improper act or conduct, and no appear-
ance of an improper act or conduct with respect to this
case, or any other case, has occurred on my part[.]” Id.
at 701. “Simply put, I do not have, nor was there any
evidence to show that I had a ‘direct, personal, substan-
tial, pecuniary interest’ in this case.” Id. at 702. Yet
the United States Supreme Court concluded that his
subjective assertions that he lacked actual bias were
insufficient for constitutional purposes. Caperton,
129 S Ct at 2263. Particularly in light of the similari-
ties between Michigan’s and West Virginia’s recusal
56 484 M
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practices—indeed, in both states recusal decisions have
been left to the discretion of the individual justice whose
recusal is sought, W Va Caperton, supra at 702—I simply
cannot conclude without further study that the historic
practice followed by Justice H
ATHAWAY
today complies
with Caperton. Nor can I conclude that Justice H
ATHAWAY
may conclusively disavow any similarity to the facts of
Caperton by simply offering her own opinion that “[t]here
is nothing alleged by the MCCA that would cause any
reasonable person to believe that there is a significant and
disproportionate influence being asserted upon me under
any objective analysis.” Ante at 46.
• Is it sufficient under Caperton that four justices of
this Court have voted to support Justice H
ATHAWAY
’s
decision here? Although Caperton expressly failed to ad-
dress a proper method for fact-finding, the Court reached
its decision by carefully considering the facts surrounding
Justice Benjamin’s election. Here the MCCA alleges that
Justice H
ATHAWAY
must recuse herself because her hus-
band has more than a de minimis financial interest in the
subject matter of these cases. The MCCA points to very
recent payments it has just made to one of Mr. Kingsley’s
clients. It also alleges that it has raised the amounts
needed to pay expected claims and its reserves by $693.8
million in anticipation of this Court’s potential reversal on
rehearing of its earlier ruling in these cases; it states that
the rate hike will be necessary because, if we reverse,
claimants such as Mr. Kingsley’s clients will receive sub-
stantially higher payments—which result in higher attor-
ney contingency fees—because insurers will have no legal
basis for resisting unreasonable settlement demands
made by plaintiffs’ attorneys. Can we possibly decide
whether these alleged facts establish that “ ‘the probabil-
ity of actual bias on the part of [Justice H
ATHAWAY
]istoo
high to be constitutionally tolerable’ ” without first engag-
ing in some kind of independent inquiry to test the claim
2009] USF&G
V
MCCA (O
N
R
EHEARING
) 57
S
EPARATE
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RDER
and Justice H
ATHAWAY
’s summary denial of it?
10
See
Caperton, 129 S Ct at 2257, quoting Withrow v Larkin,
421 US 35, 47 (1975).
I raise these concerns in part in light of the dissent filed
by Chief Justice Roberts in Caperton. He asks, among
10
As former Chief Justice T
AYLOR
suggested to Michigan Lawyers
Weekly: “ ‘You can’t set up the kind of test the U.S. Supreme Court
created in Caperton without giving parties the opportunity to have a
hearing....Where else or how else will they be able to adduce the facts
needed to meet the new objective test?’ ” MSC recusal rule may not be
constitutional, Michigan Lawyers Weekly, June 15, 2009, p 23.
Moreover, as Justice Y
OUNG
intimates, the narrow Caperton holding—
that, under some circumstances, an elected judge is disqualified from
hearing a case on the basis of contributions to his or her campaign—is also
directly implicated in this case and will continue to be regularly implicated
in cases before this Court given the current state of Michigan election law. As
it bears on this case, at her January 8, 2009, investiture ceremony, Justice
H
ATHAWAY
attributed her election to various organizations that supported
her campaign. Investiture Ceremony for the Honorable D
IANE
M. H
ATHAWAY
,
483 Mich cliii, clxviii (2009). Of particular note is her acknowledgment of the
Michigan Association for Justice (MAJ); the MAJ has explicitly supported
the defendants in these cases and filed an amicus curiae brief in support of
the motion for rehearing. Organizations that supported Justice H
ATHAWAY
’s
campaign, including the AFL-CIO , whose president, Mark Gaffney, acted as
master of ceremonies at the investiture proceeding, are also members of the
Coalition Protecting Auto No-Fault, which filed an amicus curiae brief in
these cases opposing Justice H
ATHAWAY
’s recusal. Further, these cases
involve insurance companies as parties. During her campaign, Justice
H
ATHAWAY
regularly spoke out against insurance companies and suggested
that she would not “ ‘sid[e] with big insurance companies’ ” if she were
elected to this Court. Hathaway sworn in as MSC’s 104th justice, Michigan
Lawyers Weekly, January 12, 2009, p 2. Upon her investiture as a justice of
this Court, she told the Detroit News: “ ‘For at least 10 years, the Michigan
Supreme Court has been in favor of insurance companies....[Now] I think
we will see a lot more real justice out of this Supreme Court.’ ” Michigan
Supreme Court to swear in newest justice, Detroit News, January 8, 2009.
Under an objective Caperton inquiry, it seems inescapable that such com-
ments must be analyzed to establish whether the circumstances “ ‘offer a
possible temptation to the average...judge to...lead him not to hold the
balance nice, clear and true,’ ” Caperton, 129 S Ct at 2264, quoting Tumey,
supra at 532, or suggest “a serious, objective risk of actual bias,” Caperton,
129 S Ct at 2265.
58 484 M
ICH
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40 questions, whether—although a justice does not
have an actual financial interest in the case—a litigant
may challenge the justice’s refusal to recuse himself or
herself in federal district court under 42 USC 1983,
11
Finally, I note the significant fact that Caperton provides no guidance
concerning how to evaluate the effect of anonymous campaign expenditures,
which are common in Michigan, as I discuss inn1ofthis statement. Indeed,
anonymous and independent expenditures during the 2008 election season
included $1.4 million garnered by the Democratic Party from undisclosed
donors to underwrite a TV ad campaign impugning Justice H
ATHAWAY
’s
opponent, former Chief Justice T
AYLOR
. In Michigan courts, it’s the public
that’s blindfolded, Detroit Free Press, June 14, 2009. At this time, it is
totally unclear how a court attempting to comply with Caperton would take
such donations into account. As Justice Benjamin presaged in his WVa
Caperton concurrence,
every judicial officer in this state is subject to having to decide the
merits of a case that involves a party or attorney who contributed to
or supported, or, conversely, opposed his or her campaign for office.
This now includes those who contribute to or support so-called
Independent Expenditure Groups who engage in political campaigns
completely independent of candidates of office.
***
If the Appellees’ argument became the law, every judicial officer in
this state would be disqualified from any and every case in which an
independent nonparty organization over which the judicial officer
had no control received contributions from individuals or groups
which included a person or entity affiliated with a party or an
attorney in the case, when the independent nonparty organization
used its contributions to wage a campaign against the judicial
officer’s electoral opponent. Conversely, such a standard would likely
require a judge also to recuse himself or herself when an independent
expenditure group operated against the judge or supported the
judge’s opponent. Our judicial system would break down under such
a standard for disqualification. [W Va Caperton, supra at 699,
703-704.]
Clearly, without the benefit of further study and a process for
objective fact-finding, this Court is ill-equipped to properly resolve the
complex questions presented by Caperton.
11
The summary nature of the majority’s treatment of this disqualifi-
cation motion indeed may lead the MCCA to test its due process claim in
federal court under 42 USC 1983 rather than in this Court. This is yet
another reason why we should allow the parties to brief the Caperton due
process question.
2009] USF&G
V
MCCA (O
N
R
EHEARING
) 59
S
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which permits a person deprived of a federal right by a
state official to sue for damages. Caperton,129SCtat
2271 (Roberts, C.J., dissenting). He also reasonably asks
whether the parties are “entitled to discovery with
respect to the judge’s recusal decision” and, “[i]f a judge
erroneously fails to recuse, do we apply harmless-error
review?” Id. at 2271-2272. As he suggests, the ramifi-
cations of Caperton are broad. This Court should seri-
ously consider how to properly dispose of a “Caperton
claim”
12
alleging that the probability of a justice’s bias
disqualifies that justice under the Due Process Clause.
I would thus invite thorough supplemental briefing on
these significant issues before disposing of the MCCA’s
recusal motion. Because the majority has chosen to pre-
cipitously resolve this disqualification motion, I dissent.
Y
OUNG
, J. Consistent with the Court’s 170-year-old
disqualification practice, I do not participate in the
determination whether Justice H
ATHAWAY
should dis-
qualify herself. I join in Justice C
ORRIGAN
’s dissenting
statement concerning the Caperton
1
question. I believe
that this new United States Supreme Court opinion has
radically altered the landscape of judicial disqualifica-
tion and this change warrants that this Court at least
entertain argument by the parties about how Caperton
might affect the pending disqualification motion.
However, given Justice H
ATHAWAY
’s stated position
on disqualification matters, I also write to raise ques-
tions about the casual way she has chosen to decide this
motion and how her response may bear on the extra-
constitutional disqualification proposals currently un-
der consideration by this Court.
12
See Caperton, 129 S Ct at 2274 (Scalia, J., dissenting).
1
CapertonvATMassey Coal Co, Inc, 556 US ___ ; 129 S Ct 2252; 173
L Ed 2d 1208 (2009).
60 484 M
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Few issues have been the subject of more continual and
contentious debate on this Court in the last decade than
the appropriate standard that should apply in the dis-
qualification of justices.
2
Justice H
ATHAWAY
, who is now
the subject of a disqualification motion in these cases,
dismisses our efforts to comment on this issue as
“inappropriate,” “unnecessary,” and a waste of tax-
payer dollars. Such questions, however, are a traditional
part of the debate and discussion inherent in the
judicial process. It is, for example, why this Court holds
oral arguments, and why it welcomes briefs, responses
to briefs, and even replies to responses to briefs. By this
process we educate ourselves and hopefully arrive at
better decisions. Justice H
ATHAWAY
either fails to appre-
ciate the nature of the judicial process or simply seeks
to avoid the hard questions about the inadequacies of
her own extraordinarily limited response to the dis-
qualification motion. This is particularly evident be-
cause one of the central themes of Justice H
ATHAWAY
’s
late Michigan Supreme Court campaign was her asser-
tion that she subscribed to an “appearance of impropri-
ety” disqualification standard and was, therefore,
“more ethical” than the members of the previous philo-
sophical majority—former Chief Justice T
AYLOR
and
Justices C
ORRIGAN
and M
ARKMAN
and I.
3
2
See, e.g., Adair v Michigan , 474 Mich 1027, 1038-1039 (2006) (state-
ment of T
AYLOR
, C.J., and M
ARKMAN
, J.); Grievance Administrator v Fieger,
476 Mich 231, 266-281 (2006) (opinion by T
AYLOR
, C.J., and C
ORRIGAN
,
Y
OUNG
, and M
ARKMAN
, JJ.); Scalise v Boy Scouts of America, 473 Mich 853
(2005); In re JK, 468 Mich 202, 219 (2003) (statement by W
EAVER
, J.);
Gilbert v DaimlerChrysler Corp, 469 Mich 883 (2003), reconsideration
denied 469 Mich 889 (2003). Justice W
EAVER
has also provided her own
personalized history of this debate in her statement endorsing Justice
H
ATHAWAY
’s continued participation in these cases.
3
The following was part of Justice H
ATHAWAY
’s campaign: “Our Su-
preme Court is not being fair and impartial....Theyarenotrecusing
themselves and that is the problem; we need judges who are going to be
2009] USF&G
V
MCCA (O
N
R
EHEARING
) 61
S
EPARATE
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THE NATURE OF THE ALLEGATIONS AGAINST JUSTICE HATHAWAY
Defendant Michigan Catastrophic Claims Associa-
tion (MCCA) has asserted that Justice H
ATHAWAY
’s
husband is a no-fault plaintiffs’ attorney who stands to
profit in his no-fault practice if Justice H
ATHAWAY
par-
ticipates in these cases to overturn a decision made by
this Court just months ago. The thrust of this claim is
that a reversal of our earlier opinion will remove the
legal basis, and thus the incentive, for insurance com-
panies to resist unreasonable no-fault settlements de-
manded by claimants and their attorneys. Conse-
quently, because insurance companies will be free to
pass on these unreasonable settlements to the MCCA
(which will eventually be paid for by the public, who
must buy no-fault insurance), no-fault practitioners
will increase their contingency fee yields by obtaining
higher settlements than warranted.
4
A reversal will cost
fair and impartial in rendering their decisions and that is not happening.”
Interview with Lansing State Journal (October 17, 2008). She quipped that
former Chief Justice T
AYLOR
was a “walking conflict of interest” because his
wife had worked in the Governor’s office. <http://www.youtube.com/
watch?v=_7woWJDk1Qg> (accessed June 16, 2009). It was never alleged
that former Chief Justice T
AYLOR
’s wife stood to benefit financially from her
husband’s role on this Court, as defendant here suggests that Justice
H
ATHAWAY
’s husband will. See Adair, supra at 1028 n 1. Finally, Justice
H
ATHAWAY
pledged to the people who elected her, “I have, and I will continue
to disqualify myself whenever there is the appearance of impropriety,”
League of Women Voters of Michigan Voter Guide 2008
<http://www.lwvmi.org/documents/LWV08SupremeCourt.pdf> (accessed
June 16, 2009) (emphasis added), and, “I have a habit of recusing myself if
I think that there is even an appearance of impropriety,” Interview with
Lansing State Journal (October 17, 2008).
4
The MCCA is a nonprofit association created by the Legislature to
ensure that there are sufficient resources to fund benefits under our
no-fault law for the catastrophically injured. See MCL 500.3104. Under
our prior decision, the MCCA has authority to reject unreasonable claims
when a member insurer’s policy only provides coverage for “reasonable
charges.” United States Fidelity Ins & Guaranty Co v Michigan Cata-
strophic Claims Ass’n, 482 Mich 414, 417 (2008). The MCCA contends
62 484 M
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purchasers of Michigan no-fault insurance an aggregate
of $693.8 million more this year alone, accounting, in
large part, for a more than 19 percent increase in the
catastrophic claims premium every automobile no-fault
insurance policy issued in this state will bear, which
increase the MCCA’s board of directors has already
approved in anticipation of Justice H
ATHAWAY
’s critical
vote to reverse the Court’s prior decision. See the
affidavit filed by the MCCA in Docket No. 133466,
which is one of the documents referred to inn2of
Justice H
ATHAWAY
’s statement.
Despite this, and without bothering to explain why,
Justice H
ATHAWAY
simply denies that she should be
disqualified, adding that there is no appearance of
impropriety in her participation. Justice H
ATHAWAY
does
not even deign to deny that her husband is a no-fault
plaintiffs’ practitioner or to assert that his practice will
not benefit from her participation in a decision to
overturn this Court’s prior decision.
Justice H
ATHAWAY
’s refusal to live up to her own
expressed standard of conduct is worthy of note in its
own right: The people of this state deserve to know
whether candidates promise one thing when running
for office but deliver another when elected. But the far
more important issue is the horror that would be visited
on this Court if Justice H
ATHAWAY
’s preferred “appear-
ance of impropriety” disqualification standard were
actually adopted.
HOW MAY A JUSTICE REBUT AN “APPEARANCE OF IMPROPRIETY”?
Justice H
ATHAWAY
has provided no information in
response to defendant’s allegations of her family’s fi-
that a reversal of the Court’s decision will cause a dramatic increase in its
exposure and the cost of insurance that it will pass along to the
purchasers of no-fault insurance.
2009] USF&G
V
MCCA (O
N
R
EHEARING
) 63
S
EPARATE
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RDER
nancial interest in a reversal of the Court’s prior
decision; surely her terse and conclusory statement is
not what the people envisioned when they elected a
candidate vowing to adhere to a “higher” “appearance
of impropriety” disqualification standard. Ought not
such a standard require that the target of the disquali-
fication motion provide financial statements
5
or that an
evidentiary hearing be conducted to determine the merit
of the allegations of disqualification?
6
WHAT SUFFICES TO ESTABLISH AN
“APPEARANCE OF IMPROPRIETY”?
According to Justice H
ATHAWAY
, allegations of a
spouse’s “economic interest in the subject matter in
controversy” or “more than de minimis interest that
could be substantially affected by the proceeding”—
grounds requiring recusal under MCR 2.003(B)(5) and
(6)(c)—are so irrelevant as to not even merit a discus-
sion in her statement. If these allegations of increased
5
During her campaign, Justice H
ATHAWAY
affirmatively supported
other financial disclosures: “I believe that there should be disclosure
of all election campaign spending.” Michigan Campaign Finance
Network, Questionnaire for 2008 Michigan Supreme Court Candi-
dates, p 1 <http://www.mcfn.org/pdfs/reports/SCquestionnaire.pdf>
(accessed June 16, 2009). Indeed, several member organizations of the
Coalition Protecting Auto No-Fault, which has filed an amicus curiae
brief in these cases supporting Justice H
ATHAWAY
’s continued partici-
pation, supported Justice H
ATHAWAY
’s campaign. The Michigan Trial
Lawyers Association and the United Automobile Workers each gave
$34,000 to Justice H
ATHAWAY
’s campaign, the maximum allowed by
law. During her campaign, Justice H
ATHAWAY
stated that “a judge
should consider[] disqualifying herself in any instance where a party
has made a substantial campaign contribution.” Id. In Justice H
ATHA-
WAY
’s calculus of disqualification ethics, do such contributions not
raise “even the mere appearance of impropriety”? Id. at 2.
6
And why, having promised a “higher standard of conduct” if elected,
is it defensible for Justice H
ATHAWAY
to shelter under the Court’s
historical disqualification practice that she disparaged on the campaign
trail?
64 484 M
ICH
1 [July
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family profit as a result of her participation in these
cases do not establish an appearance of impropriety,
what would?
7
WHO WILL DETERMINE WHETHER THERE IS
AN “APPEARANCE OF IMPROPRIETY”?
For the first time to my knowledge, members of the
Court have participated in the merits of a disqualification
decision on a motion addressed to another justice. Al-
though Justices C
AVANAGH
and W
EAVER
and Chief Justice
K
ELLY
have joined and endorsed Justice H
ATHAWAY
’s de-
cision, they have done so solely on the basis of Justice
H
ATHAWAY
’s statement without any additional inquiry
into the merits of her participation or the allegations
raised. In this, their participation is merely a rote ratifi-
cation of Justice H
ATHAWAY
’s cursory denial of the motion
to disqualify.
The new majority’s approval of and participation in the
merits of the determination whether Justice H
ATHAWAY
should be disqualified, while an alteration of our
traditions, is consistent with several of the Court’s
pending disqualification proposals that require full Court
participation or that of the Chief Justice.
8
With
7
Moreover, do the fact that the motion for rehearing in these cases was
prompted solely because of Justice H
ATHAWAY
’s replacement of Chief
Justice T
AYLOR
and the fact that utterly no new substantive or legal
arguments were raised in the motion, as generally required by MCR
2.119(F)(3), give rise to an appearance of impropriety with respect to her
participation? See, e.g., Peoples v Evening News Ass’n, 51 Mich 11, 21
(1883), in which this Court opined that “a rehearing will not be ordered
on the ground merely that a change of members of the bench has either
taken place or is about to occur.”
8
It is unclear why Justice H
ATHAWAY
and the new majority chose to
adopt some aspects of the new proposals while claiming to adhere to our
current disqualification practice. As stated, Justices C
AVANAGH
and
W
EAVER
and Chief Justice K
ELLY
have never, to my knowledge, publicly
endorsed the decision of another justice targeted with a disqualification
2009] USF&G
V
MCCA (O
N
R
EHEARING
) 65
S
EPARATE
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out question, lodging such a determination with other
justices of this Court will, at best, lead to gamesmanship
to change the philosophical composition of the Court to
alter the result in each such case. I ask: Would a 4-3
decision by the members of the Court favoring partici-
pation of a challenged justice cause the public to have
greater or lesser faith that the targeted justice should
ethically participate?
HOW WOULD SUCH A PROCEDURE BETTER SERVE THE PEOPLE
OF THIS STATE THAN THE NEARLY 200-YEAR-OLD CURRENT
DISQUALIFICATION PRACTICE?
These are but a few of the questions raised by Justice
H
ATHAWAY
’s disposition of the pending motion to dis-
qualify her. Given Justice H
ATHAWAY
’s campaign prom-
ises and our colleagues’ published statements on dis-
qualification over the years, not only the parties, but
the public deserve more.
M
ARKMAN
, J. Defendant has moved for Justice
H
ATHAWAY
’s disqualification, arguing that “her
spouse has an interest that could be substantially
affected by the outcome of the proceedings.” Justice
H
ATHAWAY
now denies this motion, concluding that
she has “no personal bias or prejudice,” that there is
“no appearance of impropriety,” and that there is
“nothing alleged...that would cause any reasonable
person to believe that there is a significant and
disproportionate influence being asserted upon me,”
with little to no explanation. This decision must be
viewed against a backdrop in which Justice H
ATHAWAY
has been free in her criticism of other justices for
their disqualification decisions. (For example, assert-
motion, as they have done here. However, because they considered
nothing beyond Justice H
ATHAWAY
’s statement, it is hard to understand
what their endorsement adds, other than being a statement of solidarity.
66 484 M
ICH
1 [July
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ing that the former Chief Justice of this Court was a
“walking conflict of interest” because his wife worked
for the Governor’s office; stating that “our Supreme
Court is not being fair and impartial...[;]they are
not recusing themselves and that is the problem; we
need judges who are going to be fair and impartial in
rendering their decisions and that is not happening”;
and proclaiming that, “I have, and I will continue to
disqualify myself whenever there is the appearance of
impropriety.”)
1
Justice H
ATHAWAY
has also supported
this Court’s decision to propose new procedures that
would require disqualification whenever there is an
“appearance of impropriety.” ADM File No. 2009-4; see
483 Mich 1205 (2009). Finally, the United States Su-
preme Court’s decision a few weeks ago in Caperton v A
T Massey Coal Co, Inc, 556 US __ ; 129 S Ct 2252; 173
L Ed 2d 1208 (2009), held that disqualification must
now be determined on the basis of “objective stan-
dards.” Given this backdrop, it is difficult to understand
why Justice H
ATHAWAY
believes that her conclusory
response to defendant’s motion is sufficient. Contrary
to her justification for her unwillingness to explain her
position (“I will not participate in this Court’s practice
of engaging in responses to comments of others that are
inappropriate and unnecessary. This Court should discon-
tinue devoting the state’s limited resources to unproduc-
tive colloquy.”), it is hardly to take the high ground for a
justice to decline to address questions that have been
raised by the parties and by other justices, and that are a
direct outgrowth of that justice’s own reform proposals,
her own past criticisms of other justices, and a recent
decision of the United States Supreme Court. Given that
1
<http://www.youtube.com/watch?v=_7woWJDk1Qg> (accessed June
18, 2009); Interview with Lansing State Journal, October 17, 2008; and
League of Woman Voters of Michigan Voter Guide 2008
<http://www.lwvmi.org/documents/LWV08SupremeCourt.pdf> (accessed
June 18, 2009), respectively.
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EPARATE
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Caperton was decided just a few weeks ago, and in fairness
to the parties, I would direct the filing of supplemental
briefs. Among the questions I would direct the parties to
address are whether all justices must now participate in
deciding another justice’s disqualification and whether
the justice who is the object of disqualification may even
participate. Absent such briefing, I am not yet prepared to
deviate from this Court’s practice of 172 years to the
contrary. Therefore, I neither participate in nor address
the merits of Justice H
ATHAWAY
’s decision not to grant
defendant’s motion.
68 484 M
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McNEIL v CHARLEVOIX COUNTY
Docket No. 134437. Argued January 22, 2009 (Calendar No. 9). Decided
July 21, 2009.
Kent A. McNeil and other residents or business owners in Charlevoix
County brought an action in the Charlevoix Circuit Court against
Charlevoix County and Northwest Michigan Community Health
Agency (NMCHA), a multicounty district health department or-
ganized by Antrim, Charlevoix, Emmet, and Otsego counties. The
NMCHA had promulgated a regulation that prohibits smoking in
all enclosed public places, requires employers that do not wholly
prohibit smoking at an enclosed work site to designate an
NMCHA-approved, independently ventilated smoking room, and
prohibits an employer from discharging, refusing to hire, or
otherwise retaliating against an employee for exercising his or her
right to the smoke-free environment created by the regulation.
The plaintiffs sought a judgment declaring the regulation invalid.
The court, Richard M. Pajtas, J., denied a motion for summary
disposition filed by the plaintiffs, who then appealed. The Court of
Appeals, S
AAD
,P.J., and H
OEKSTRA
and S
MOLENSKI
, JJ., affirmed,
holding that the NMCHA acted within its authority when it
promulgated the regulation at issue, that the regulation was not
preempted by the Michigan Clean Indoor Air Act, and that the
provision of the regulation that prohibits employers from discharg-
ing, refusing to hire, or otherwise retaliating against employees for
exercising their right to a smoke-free environment did not violate
the public policy of allowing employment terminable at will. 275
Mich App 686 (2007). The plaintiffs applied for leave to appeal,
which the Supreme Court granted with respect to those plaintiffs
who had standing. 482 Mich 1014 (2008).
In an opinion by Justice W
EAVER
, joined by Chief Justice K
ELLY
and Justices C
AVANAGH
and H
ATHAWAY
, the Supreme Court held:
The regulation at issue is authorized by statute and was
promulgated in a manner consistent with the statutory require-
ments. Furthermore, the private cause of action that the regula-
tion creates fits within public policy exceptions to Michigan’s
at-will employment doctrine.
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1. The NMCHA acted within its authority when it promul-
gated the regulation at issue. Part 126 of the Public Health Code
(PHC), MCL 333.12601 et seq., which governs smoking in public
places and is also known as the Michigan Clean Indoor Air Act,
expressly provides that the Michigan Department of Community
Health may authorize a local health department like the NMCHA
to enforce part 126 and the rules promulgated under that part.
MCL 333.12613(2). Even if the responsibility for the implementa-
tion and enforcement of the restrictions established by part 126
had been exclusively granted to the Department of Community
Health, that would not, by itself, deny a local health department
the authority to promulgate, implement, and enforce similar
regulations of its own making. Part 24 of the PHC, MCL 333.2401
et seq., which governs local health departments like the NMCHA,
charges local health departments with the duty to continually and
diligently endeavor to prevent disease, prolong life, and promote
the public health through organized programs, including those for
the prevention and control of environmental health hazards. MCL
333.2433(1). Part 24 also provides that a local health department
may adopt regulations to properly safeguard the public health,
MCL 333.2435(d), or regulations that are necessary or appropriate
to implement or carry out the duties or functions vested by law in
the local health department, MCL 333.2441(1). Finally, part 24
provides that a local health department shall implement and
enforce laws for which responsibility is vested in the local health
department. MCL 333.2441(1).
2. The provision in the regulation that prohibits an employer
from discharging, refusing to hire, or otherwise retaliating against a
person for exercising his or her right to a smoke-free environment
does not violate the public policy of allowing employment terminable
at will by either employer or employee. An at-will employee’s dis-
charge violates public policy if the employee is discharged in violation
of an explicit legislative statement prohibiting discharge of employees
who act in accordance with a statutory right or duty, the employee is
discharged for the failure or refusal to violate the law in the course of
employment, or the employee is discharged for exercising a right
conferred by a well-established legislative enactment. Although the
regulation at issue is not a legislative enactment or statement, it
provides employees with certain specified rights and was, as required
by MCL 333.2411(1), approved by the governing bodies of each of the
counties served by the NMCHA. Given this and the public policy of
minimizing the effects of smoking evinced by the Legislature through
its enactment of part 126 and § 12905 of part 129 of the PHC , MCL
333.12905 (which governs smoking in public areas of food service
70 484 M
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69 [July
establishments), the regulation’s restriction on an employer’s
right to discharge an employee at will is consistent with the
aforementioned exceptions.
Justice C
AVANAGH
, joined by Chief Justice K
ELLY
, concurring,
wrote separately to clarify that the non-retaliation provision of the
clean indoor air regulation promulgated by the defendants falls
within the public-policy exception to the common-law doctrine of
at-will employment for employees acting in accordance with a
legally recognized right or duty. He further stated that the sections
of the regulation that create a private cause of action were within
the broad constitutional and statutory authority granted to county
boards of commissioners to pass ordinances that relate to county
affairs and do not contravene the general laws of this state.
Affirmed.
Justice M
ARKMAN
, joined by Justices C
ORRIGAN
and Y
OUNG
, concur-
ring in part and dissenting in part, agreed that the NMCHA, acting in
conjunction with the local boards of commissioners, has the authority
to enact that part of the regulation that restricts smoking at least as
stringently as the Michigan Clean Indoor Air Act. He dissented from
the majority’s implicit ruling that the part of the regulation that
creates a private cause of action against private employers is valid
and would hold instead that MCL 46.11(j) precludes a county board of
commissioners from creating a private cause of action against a
private entity that alters Michigan’s at-will employment doctrine. He
also dissented from the conclusion that the part of the regulation that
restricts smoking fits within one of the exceptions to at-will employ-
ment recognized in the Suchodolski v Michigan Consolidated Gas
Co, 412 Mich 692 (1982), and generally would not extend the
Suchodolski exceptions to include local regulations. He would re-
mand this case to the Court of Appeals to consider whether employ-
ees could enforce their rights under the regulation restricting smok-
ing by bringing an action under the Whistleblowers’ Protection Act.
1. H
EALTH —
L
OCAL
H
EALTH
D
EPARTMENTS —
S
MOKING
R
EGULATIONS
.
A local health department created pursuant to part 24 of the Public
Health Code has the authority under that part and part 126, also
known as the Michigan Clean Indoor Air Act, to promulgate,
implement, and enforce regulations in indoor public places that
are at least as stringent as those established by state law (MCL
333.2433[1], 333.2435[d], 333.2441[1], and 333.12613[2]).
2. H
EALTH —
L
OCAL
H
EALTH
D
EPARTMENTS —
S
MOKING
R
EGULATIONS
.
A regulation by a local health department created pursuant to part
24 of the Public Health Code that prohibits smoking in all enclosed
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public places and requires employers that do not wholly prohibit
smoking at an enclosed work site to designate a department-
approved smoking room for those of its employees who smoke does
not conflict with part 126 of the Public Health Code, also known as
the Michigan Clean Indoor Air Act (MCL 333.2401 et seq.and
333.12601 et seq.).
3. H
EALTH —
L
OCAL
H
EALTH
D
EPARTMENTS —
S
MOKING
R
EGULATIONS —
E
MPLOY-
MENT —
A
T-
W
ILL
E
MPLOYMENT
.
A regulation by a local health department created pursuant to part
24 of the Public Health Code that prohibits an employer from
discharging, refusing to hire, or otherwise retaliating against an
employee for exercising his or her right to a smoke-free working
environment mandated by the regulation does not violate the
public policy of recognizing the right to terminate employment at
will (MCL 333.2401 et seq.).
Foster, Swift, Collins & Smith, P.C. (by Samuel J.
Frederick), for Scott Way and Jeff Legato.
Young, Graham, Elsenheimer & Wendling, P.C. (by
James G. Young and Dennis M. LaBelle), for Northwest
Michigan Community Health Agency.
Amici Curiae:
Cohl, Stoker, Toskey & McGlinchey, P.C. (by Peter A.
Cohl and Richard D. McNulty), for the Michigan Asso-
ciation of Counties and the Michigan Association for
Local Public Health.
Bauckham, Sparks, Lohrstorfer, Thall & Seeber, P.C.
(by John H. Bauckham and Robert E. Thall), for the
Michigan Townships Association.
W
EAVER
, J. At issue in this case is whether MCL
333.2441(1) authorizes a local health department to
create, and a county board of commissioners to approve,
regulations that control smoking in the workplace.
Additionally at issue is whether such a regulation,
72 484 M
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providing employees with a private cause of action to
seek its enforcement, interferes with Michigan’s at-will
employment doctrine.
I. THE COURT OF APPEALS DECISION
The Court of Appeals concluded that the regulation
at issue is authorized by statute and was promulgated
in a manner consistent with the statutory require-
ments. Furthermore, the Court of Appeals concluded
that the private cause of action created by the regula-
tion fits within public policy exceptions to Michigan’s
at-will employment doctrine. We agree with the Court
of Appeals’ conclusions. In affirming, we adopt as our
own the Court of Appeals’ opinion, McNeil v Charlevoix
Co, 275 Mich App 686; 741 NW2d 27 (2007)
1
:
In this action for declaratory relief, plaintiffs appeal as
of right the trial court’s order denying their motion for
summary disposition. We affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Defendant Northwest Michigan Community Health
Agency (NMCHA) is a multicounty district health depart-
ment organized by Antrim, Charlevoix, Emmet, and Ot-
sego counties under Part 24 of the Public Health Code
(PHC), MCL 333.2401 et seq.
1
In purported furtherance of
its duty to protect the public health and welfare in its
district, the NMCHA promulgated what it entitled the
Public Health Indoor Air Regulation of 2005 (the regula-
tion). In addition to prohibiting smoking in all public
places, the regulation requires employers who do not
wholly prohibit smoking at an enclosed place of employ-
ment to designate an NMCHA-approved smoking room,
1
We have eliminated only that portion of the Court of Appeals opinion
that addresses the issue of preemption, because we do not believe that a
preemption analysis is necessary for the resolution of the issues before us
at this time. We do not disturb the Court of Appeals’ ruling on that issue.
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which is required by the regulation to be “a separate
enclosed area that is independently ventilated so that
smoke does not enter other non-smoking areas of the
worksite.” The regulation additionally prohibits an em-
ployer from discharging, refusing to hire, or otherwise
retaliating against an employee for exercising his or her
right to the smoke-free environment afforded by the regu-
lation.
After the regulation was approved by each of the four
counties, plaintiffs, each of whom resides or operates a
business within defendant Charlevoix County, brought this
action to invalidate the regulation by judicial declaration
that the NMCHA was without authority to promulgate
such a regulation and that the regulation itself was pre-
empted by Part 126 of the PHC, MCL 333.12601 et seq.,
which prohibits smoking in buildings used by the public
except in designated areas. In seeking summary disposition
on these grounds, plaintiffs argued that nothing in Part
126 of the PHC, which is also known as the Michigan Clean
Indoor Air Act (MCIAA),
2
authorizes a local health depart-
ment to enforce or augment the smoking restrictions set by
the MCIAA. Plaintiffs further argued that § 12605 of the
MCIAA, MCL 333.12605, grants owners and operators of
public places the discretion to choose whether to maintain
a smoking section or remain smoke-free, and that this
discretion to permit smoking in public places constitutes a
statutorily conferred right that a local health department
cannot annul by regulation. Moreover, plaintiffs argued,
where the owner or operator of a public place chooses to
have a designated smoking area, § 12605 requires only that
existing physical barriers and ventilation be used to mini-
mize the toxic effects of smoking. Thus, insofar as the
NMCHA regulation requires that smoking be restricted to
a separate, enclosed area with independent ventilation, it
conflicts with the MCIAA and must be found to be invalid.
Citing this Court’s decision in Michigan Restaurant
Ass’n v City of Marquette, 245 Mich App 63; 626 NW2d 418
(2001), plaintiffs further asserted that smoking is an issue
better suited to regulation on a statewide basis, and that
local regulation must therefore yield to the preemptive
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provisions of the MCIAA. Plaintiffs additionally argued
that, to the extent the regulation impinges on the common-
law right of an employer to discharge an employee at will,
the regulation violates public policy and is void. The trial
court, however, disagreed and denied plaintiffs’ motion.
This appeal followed.
II. ANALYSIS
Plaintiffs assert that the trial court erred in denying
their motion for summary disposition. In doing so, plain-
tiffs again argue that the NMCHA lacked the authority to
promulgate regulations restricting smoking and that local
regulation was, in any event, preempted by the MCIAA. We
disagree.
A. STANDARD OF REVIEW
Resolution of the questions presented on appeal re-
quires the interpretation of statutes, which is a question of
law that this Court reviews de novo. See Michigan Coali-
tion for Responsible Gun Owners v Ferndale, 256 Mich App
401, 405; 662 NW2d 864 (2003). When interpreting a
statute, this Court’s goal is to ascertain and give effect to
the intent of the Legislature by applying the plain language
of the statute. Gladych v New Family Homes, Inc, 468 Mich
594, 597; 664 NW2d 705 (2003).
B. OVERVIEW OF THE MICHIGAN CLEAN INDOOR AIR ACT
The MCIAA, enacted in 1986 as Part 126 of the PHC,
3
prohibits smoking “in a public place or at a meeting of a
public body, except in a designated smoking area.” MCL
333.12603. Although seemingly broad in scope, “public
place,” as defined by the MCIAA, renders the act inappli-
cable to most private-sector workplaces and public areas
that are not themselves enclosed. See MCL 333.12601(m).
4
Also exempt from the requirements of the act are food
service establishments,
5
MCL 333.12603(3), private educa-
tional facilities “after regularly scheduled school hours,”
MCL 333.12603(4), and enclosed private rooms or offices
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occupied exclusively by a smoker, “even if the room or
enclosed office may be visited by a nonsmoker,” MCL
333.12601(2). Further, the MCIAA expressly does not apply
to “a room, hall, or building used for a private function if
the seating arrangements are under the control of the
sponsor of the function and not under the control of the
state or local government agency or the person who owns
or operates the room, hall, or building.” MCL 333.12603(2).
In all other public places in which smoking is not
“prohibited by law,” the MCIAA permits a “person who
owns or operates a public place” to designate a smoking
area. MCL 333.12605(1).
6
In those public places in which
an owner or operator elects to designate a smoking area,
the act requires that “existing physical barriers and venti-
lation systems shall be used to minimize the toxic effect of
smoke in both smoking and adjacent nonsmoking areas.”
MCL 333.12605(1).
7
The act further requires that seating
within the public place be arranged “to provide, as nearly
as practicable, a smoke-free area,” MCL 333.12607(b), and
that the owner or operator develop, implement, and en-
force “a written policy for the separation of smokers and
nonsmokers which provides, at a minimum,” for a proce-
dure to receive, investigate, and take action on complaints,
and that ensures that nonsmokers will be located closest to
the source of fresh air and that special consideration will be
given to individuals with a hypersensitivity to tobacco
smoke, MCL 333.12605(3); see also MCL 333.12607(c).
C. AUTHORITY OF THE NMCHA TO PROMULGATE
SMOKING REGULATIONS
In challenging the validity of the regulation promul-
gated by the NMCHA, plaintiffs assert that nothing in Part
126 of the PHC authorizes a local health department to
enforce or augment the smoking restrictions set by the
MCIAA.
8
Plaintiffs argue that, pursuant to MCL
333.12613, implementation and enforcement of the act and
rules promulgated thereunder is a power within the exclu-
sive province of the Michigan Department of Community
Health. Plaintiffs’ argument in this regard, however, is not
sustained by the plain language of § 12613(2) of Part 126,
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which expressly provides that “the department may autho-
rize a local health department to enforce this part and the
rules promulgated under this part.” MCL 333.12613(2).
Moreover, even if the responsibility for the implementa-
tion and enforcement of the restrictions established by
Part 126 had been exclusively granted to the Department
of Community Health, that would not, by itself, deny a local
health department the authority to promulgate, imple-
ment, and enforce similar regulations of its own making.
As previously noted, Part 24 of the PHC authorizes the
creation of local health departments such as the NMCHA.
See MCL 333.2415 and 333.2421. Pursuant to § 2433 of
Part 24, such departments are charged with the duty to
“continually and diligently endeavor to prevent disease,
prolong life, and promote the public health through orga-
nized programs, including prevention and control of envi-
ronmental health hazards; prevention and control of dis-
eases; prevention and control of health problems of
particularly vulnerable population groups; development of
health care facilities and health services delivery systems;
and regulation of health care facilities and health services
delivery systems to the extent provided by law. [MCL
333.2433(1).]”
The regulation at issue is consistent with these duties
and is authorized to be promulgated by the NMCHA under
§§ 2435 and 2441 of Part 24, which provide that a local
health department may “[a]dopt regulations to properly
safeguard the public health,” MCL 333.2435(d), or regula-
tions that “are necessary or appropriate to implement or
carry out the duties or functions vested by law in the local
health department,” MCL 333.2441(1). See also MCL
333.2433(2)(a) (which provides that a local health depart-
ment “shall... [i]mplement and enforce laws for which
responsibility is vested in the local health department”). As
argued by defendants, the only limitation placed by the
Legislature on the promulgation and adoption of such
regulations is that they “be at least as stringent as the
standard established by state law applicable to the same or
similar subject matter.” MCL 333.2441(1).
9
The regulation
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at issue here, being more restrictive than the standards set
by the MCIAA, meets this requirement.
We recognize plaintiffs’ argument that, under a plain
reading of § 2433(1), the fulfillment of the duties imposed
by that section on local health departments is arguably
limited to the institution of programs. The section must,
however, be read in context and in light of the purpose of
both Part 24 and the PHC in general. See Macomb Co
Prosecuting Attorney v Murphy, 464 Mich 149, 159; 627
NW2d 247 (2001). As noted earlier, MCL 333.2435(d)
expressly grants a local health department authority to
“[a]dopt regulations to properly safeguard the public
health.” Plaintiffs assert that the Legislature has also
granted local health departments more specific powers.
10
However, that does not lessen the general duty and author-
ity of those agencies to protect the public health, MCL
333.2433(1), and to adopt and implement regulations for
that purpose, MCL 333.2435(d) and 333.2441(1). In fact,
the preliminary provisions of the PHC require that the
code and each of its various parts “be liberally construed
for the protection of the health, safety, and welfare of the
people of this state.” MCL 333.1111(2); see also MCL
333.2401(2) (stating that the “general definitions and
principles of construction” contained in article 1 of the
PHC, MCL 333.1101 et seq., are “applicable to all articles in
this code”), and Frens Orchards, Inc v Dayton Twp Bd, 253
Mich App 129, 134-135; 654 NW2d 346 (2002) (applying the
preliminary provisions of the PHC to Part 124 of the code,
regulating agricultural labor camps). Because, when so
construed, the provisions of Part 24 evince a legislative
intent to permit regulation of the kind at issue here, we
reject plaintiffs’ assertion that the NMCHA was without
authority to promulgate the regulation.
***
E. EMPLOYMENT AT WILL
Finally, plaintiffs argue that because the regulation’s
provision that an employer cannot discharge, refuse to
hire, or otherwise retaliate against a person for exercising
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his or her right to a smoke-free environment adversely
affects the common-law right of an employer to discharge
an employee at will, the NMCHA regulation violates public
policy and is therefore void. Again, we disagree.
Plaintiffs correctly argue that, in the absence of a
contract providing to the contrary, employment is usually
terminable by the employer or the employee at any time,
for any or no reason whatsoever. Suchodolski v Michigan
Consolidated Gas Co, 412 Mich 692, 694-695; 316 NW2d
710 (1982). It is well settled, however, that an employer is
not free to discharge an employee at will when the reason
for the discharge contravenes public policy. See id. at 695.
In Suchodolski, supra at 695-696, our Supreme Court
provided three examples of public-policy exceptions to an
employer’s right to discharge an at-will employee under the
employment at will doctrine. An at-will employee’s dis-
charge violates public policy if any one of the following
occurs: (1) the employee is discharged in violation of an
explicit legislative statement prohibiting discharge of em-
ployees who act in accordance with a statutory right or
duty; (2) the employee is discharged for the failure or
refusal to violate the law in the course of employment; or
(3) the employee is discharged for exercising a right con-
ferred by a well-established legislative enactment. Id.
Although not itself a legislative enactment or statement,
the regulation at issue here provides employees with cer-
tain specified rights and was, as required by MCL
333.2441(1), approved for application by the governing
bodies of each of the various counties served by the
NMCHA.
17
Given these facts, and considering the public
policy of minimizing the effects of smoking evinced by the
Legislature through its enactment of Part 126 and § 12905
of Part 129 of the PHC, the regulation’s restriction of the
general right to discharge an employee at will is consistent
with the exceptions to that doctrine set forth in Suchodol-
ski. Accordingly, we reject plaintiffs’ claim that the regula-
tion’s prohibition in this regard itself violates public policy
and is therefore void.
Affirmed.
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_____________________________________________________
1
Pursuant to § 2415 of Part 24, “[t]wo or more coun-
ties . . . , by a majority vote of each local governing entity
and with approval of the [state] department [of community
health], may unite to create a district health department.”
MCL 333.2415.
2
See MCL 333.12616.
3
See 1986 PA 198, effective January 1, 1987.
4
MCL 333.12601(m)(i) defines “public place” as
“[a]n enclosed, indoor area owned or operated by a state or
local governmental agency and used by the general public
or serving as a place of work for public employees or a
meeting place for a public body, including an office, educa-
tional facility, home for the aged, nursing home, county
medical care facility, hospice, hospital long-term care unit,
auditorium, arena, meeting room, or public conveyance.”
Enclosed indoor areas that are not owned or operated by
a state or local governmental unit, but are included in the
definition of “public place” if used by the general public,
include educational facilities, homes for the aged, nursing
homes, county medical care facilities, hospices, hospital
long-term care units, auditoriums, arenas, theaters, muse-
ums, concert halls, and “[a]ny other facility during the
period of its use for a performance or exhibit of the arts.”
MCL 333.12601(m)(ii)(A)-(H).
5
As discussed infra, smoking in food service establish-
ments is nonetheless regulated under Part 129 of the PHC,
MCL 333.12905 et seq.
6
Note, however, that the MCIAA places slightly more
stringent requirements on two types of facilities: child care
and health facilities. In child care facilities or on property
under the control of a child care facility, smoking is
completely prohibited. MCL 333.12604. In health facilities,
smoking is allowed only in a designated area that is
“enclosed and ventilated or otherwise constructed to en-
sure a smoke free environment in patient care and common
areas.” MCL 333.12604a(2)(b). Further, in a health facility,
patients may smoke only if a “prohibition on smoking
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would be detrimental to the patient’s treatment as defined
by medical conditions identified by the collective health
facility medical staff.” MCL 333.12604a(2)(a). Patients who
are permitted to smoke must, however, be in a separate
room from nonsmoking patients. Id.
7
However, “[i]n the case of a public place consisting of
a single room, the state or governmental agency or
person who owns or operates the single room” is consid-
ered to be in compliance with the act “if
1
/
2
of the room
is reserved and posted as a no smoking area.” MCL
333.12605(2).
8
Although the trial court’s failure to address the
authority of the NMCHA to promulgate the regulation at
issue renders the issue unpreserved for review on appeal,
Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d
489 (1999), this Court may review an unpreserved issue
if it is one of law and the facts necessary for resolution of
the issue have been presented, Adam v Sylvan Glynn Golf
Course, 197 Mich App 95, 98-99; 494 NW2d 791 (1992).
As presented both below and on appeal, the question
whether the NMCHA is authorized to develop regula-
tions restricting smoking presents an issue of statutory
interpretation, which is a question of law for which the
facts necessary for its resolution are sufficiently present
to permit this Court’s review. See Michigan Coalition,
supra at 405.
9
Unlike Part 24 of the PHC, the regulatory enabling
statute at issue in DABE, Inc v Toledo-Lucas Co Bd of
Health, 96 Ohio St 3d 250; 773 NE2d 536 (2002), does not
contain a similar statement evincing a legislative intent to
permit coequal regulation of the public health by a local
health department. Thus, we reject plaintiffs’ reliance on
that case as support for their assertion that the NMCHA
was without authority to promulgate the regulation at
issue in this case.
10
See, e.g., MCL 333.2455, which permits a local
health department to “issue an order to avoid, correct, or
remove . . . a building or condition which violates health
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laws or which the local health officer... reasonably
believes to be a nuisance, unsanitary condition, or cause
of illness.”
***
17
MCL 333.2441(1) provides, in relevant part, that
regulations adopted by a local health agency “shall be
approved or disapproved by the local governing entity.”
______________________________________________________
II. RESPONSE TO JUSTICE MARKMAN’S
PARTIAL CONCURRENCE AND PARTIAL DISSENT
Justice M
ARKMAN
agrees that the workplace smoking
regulation at issue is “consistent with MCL
333.2433(1), at least to the extent it is designed to
‘prevent disease, [and] prolong life.’ ” Post at 106.
Therefore, Justice M
ARKMAN
concludes that the county
boards of commissioners acted within their statutory
authority when regulating smoking in this particular case.
Nevertheless, Justice M
ARKMAN
contends that the anti-
retaliation section of this regulation is invalid because it
exceeds the legislative authority granted to the county
boards of commissioners and, alternatively, because it
contravenes the law of at-will employment in this state.
The anti-retaliation section of this regulation essen-
tially ensures that an employee will not be terminated for
asserting rights that were granted by the regulation. The
Michigan Constitution provides that “[b]oards of supervi-
sors shall have legislative, administrative and such other
powers and duties as provided by law.” Const 1963, art 7,
§ 8. The plain language of the PHC itself places a broad
duty on local health departments to take necessary ac-
tions for preventing and controlling hazards to human
health. Contrary to the partial dissent, we believe that the
county boards of commissioners possessed the authority
to adopt the anti-retaliation section of this regulation.
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The Legislature grants county boards of commission-
ers the authority to “pass ordinances that relate to
county affairs and do not contravene the general laws of
this state... and pursuant to section 10b provide
suitable sanctions for the violation of those ordi-
nances.” MCL 46.11(j). Section 10b provides that
county boards of commissioners may impose a sanction
of imprisonment for not more than 90 days or a fine of
not more than $500 for the violation of an ordinance.
MCL 46.10b(1). Additionally, through the PHC, the
Legislature provides county boards of commissioners
with the authority to approve local health department
regulations that are “at least as stringent as the stan-
dard established by state law ....”MCL333.2441(1).
It is important to note that the Legislature explicitly
instructs that the PHC is to be “liberally construed for
the protection of the health, safety, and welfare of the
people of this state.” MCL 333.1111(2). The PHC ex-
pressly authorizes local health departments to “adopt
regulations to properly safeguard the public health and
to prevent the spread of diseases and sources of con-
tamination.” MCL 333.2435(d). In addition, the PHC
mandates that local health departments “continually
and diligently endeavor to prevent disease, prolong life,
and promote the public health through organized pro-
grams, including prevention and control of environmen-
tal health hazards; prevention and control of diseases;
[and] prevention and control of health problems of
particularly vulnerable population groups....” MCL
333.2433(1) (emphasis added). Furthermore, the PHC
expressly directs local health departments to “[i]mple-
ment and enforce laws for which responsibility is vested
in the local health department.” MCL 333.2433(2)(a).
As Justice C
AVANAGH
correctly points out, county
boards of commissioners adopting regulations by ma-
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jority vote are essentially functioning as local legislative
bodies. In this case, the local health department, the
NMCHA, created the regulation and submitted it to the
boards for approval, just as MCL 333.2441(1) requires.
The submitted regulation provides for a private cause of
action against an employer who discharges an employee
for asserting rights created by the regulation.
We have already concluded that the Legislature has
not expressly limited the exact manner in which a local
health department prevents and controls health haz-
ards within its communities. In fact, local health de-
partments are explicitly directed to take action to
safeguard the public health. See MCL 333.2435(d);
MCL 333.2433(1); MCL 333.2433(2)(a). We conclude
that the anti-retaliation provision of this workplace
smoking regulation is another method used by the local
health department to prevent and control the health
hazards caused by secondhand smoke inhalation.
In Mack v Detroit, 467 Mich 186, 189; 649 NW2d 47
(2002), this Court held that a city charter providing a
private cause of action against the city itself for dis-
crimination based on sexual orientation contravenes
the governmental tort liability act and, therefore, such
a cause of action will not be recognized. This Court
reasoned that “a governmental agency is immune un-
less the Legislature has pulled back the veil of immu-
nity and allowed suit by citizens against the govern-
ment.” Id. at 195. Additionally, this Court noted that
exceptions to governmental immunity are narrowly
construed. Id. at 196 n 10. However, the majority in
Mack expressly limited its analysis to the city’s lack of
authority in light of governmental immunity law and
declined to address the question whether a city can
create a private cause of action against nongovernmen-
tal entities. Id.at197n12,194n6.
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Justice M
ARKMAN
correctly observes that Mack in-
volved a city’s authority to create a private cause of
action, while this particular case involves a county’s
authority to do so. Post at 109 n 4. However, we note
that in Mack, the majority placed weight on the lack of
legislative authorization for the city to create a cause of
action and the limitations placed on municipalities by
the Legislature. Mack, supra at 195-197. Here, the
Legislature has expressly placed the affirmative duty on
local health departments to take measures to safeguard
human health, MCL 333.2433(1), and authorizes those
departments to do so through regulations, MCL
333.2435(d). Again, the Legislature has explicitly in-
structed that the PHC be liberally construed. MCL
333.1111(2). The regulation imposes smoking restric-
tions under the stated purpose of protecting “the public
health and welfare by regulating smoking in public
places and places of employment and recreation in the
counties which comprise this multi-county health de-
partment.” Section 1011 of the regulation states that an
employer may not retaliate against any employee, po-
tential employee, or customer for exercising the right to
a healthy work environment provided pursuant to the
regulation. Furthermore, § 1012(F) provides that an
employee or other private citizen may bring legal action
to enforce this right.
While Justice M
ARKMAN
acknowledges the constitu-
tional and statutory authority granted to county boards of
commissioners, he alternatively concludes that the private
cause of action provision of the regulation at issue is
invalid on the basis that it “contravenes the law of at-will
employment in this state.” Post at 108. We, instead, agree
with the Court of Appeals that the private cause of action
in this particular regulation falls within Suchodolski’s
three examples of public policy exceptions to the common
law at-will employment doctrine.
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In Suchodolski v Michigan Consolidated Gas Co, 412
Mich 692, 694-695; 316 NW2d 710 (1982), this Court
held that while either party to an employment contract
for an indefinite term may generally terminate the
employment at any time for any, or no, reason, “some
grounds for discharging an employee are so contrary to
public policy as to be actionable.” Examples of excep-
tions to Michigan’s at-will employment doctrine, as
explained in Suchodolski, include “adverse treatment
of employees who act in accordance with a statutory
right or duty,” an employee’s “failure or refusal to
violate a law in the course of employment,” and an
employee’s “exercise of a right conferred by a well-
established legislative enactment.” Id. at 695-696.
Because the regulation grants employees the right to
a smoke-free work environment, the retaliatory dis-
charge of an employee exercising this right would
constitute “adverse treatment of employees who act in
accordance with a statutory right or duty.” Suchodolski,
supra at 695. Citing Dudewicz v Norris-Schmid, 443
Mich 68, 80; 503 NW2d 645 (1993), Justice M
ARKMAN
argues that if the regulation is enforceable under the
Whistleblowers’ Protection Act (WPA), MCL 15.361 et
seq., then a public policy claim for its violation is not
viable. Post at 112 n 8. We first note that Dudewicz
involved an employee who filed a criminal complaint
against a fellow employee and was then discharged. In
this case, we are simply concerned with the county’s
authority to adopt the anti-retaliation provision and
provide for a private cause of action in order to enforce
its regulations, and the WPA does not effectively negate
the authority granted by the Legislature in the PHC.
Furthermore, in Dudewicz this Court only reviewed the
Court of Appeals’ application of Suchodolski in light of
the first example of exceptions to the at-will employ-
ment doctrine. Id.at72.
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Because the private cause of action in the regulation
also constitutes the “exercise of a right conferred by a
well-established legislative enactment,” we disagree
with Justice M
ARKMAN
that it is necessary to remand
this case in order to consider whether the regulation at
issue may be enforced under the WPA. Part 126 of the
PHC was clearly enacted by the Legislature in an effort
to minimize the toxic effect of smoking. See MCL
333.12605. Pursuant to the authority granted by the
Legislature, the county boards of commissioners
adopted the regulation in an effort to further that same
goal. Again, the regulation was adopted by the county
boards of commissioners while they were functioning as
local legislative bodies and exercising the authority
granted to them by the Legislature in the PHC. In
addition, the Legislature expressly authorizes a local
health department to enforce part 126, and rules pro-
mulgated under it, by any “appropriate action autho-
rized by law.” MCL 333.12613(2). Therefore, we agree
with the Court of Appeals’ conclusion that the regula-
tion was enacted pursuant to the authority granted by
the Legislature in MCL 333.2433(1), and the plain
language of MCL 333.12613(2) does not limit the en-
forcement of such regulations to state departments of
community health.
III. CONCLUSION
Given the Legislature’s statutory mandates to mini-
mize the toxic effects of smoking on human health, the
authority granted in the PHC to local health depart-
ments to prevent and control human health hazards
and the facts of this particular case, we disagree with
the partial concurrence and partial dissent’s view that
the Suchodolski exceptions to the at-will employment
doctrine cannot possibly apply here. We, therefore,
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adopt the Court of Appeals’ opinion, which correctly
concluded that the NMCHA and the local boards of
commissioners were authorized to enact the regulation.
Affirmed.
K
ELLY
, C.J., and C
AVANAGH
and H
ATHAWAY
, JJ., con-
curred with W
EAVER
,J.
C
AVANAGH
,J.(concurring). I concur in full with the
majority opinion, including its conclusion that the clean
indoor air regulation (CIAR) should be upheld. I would
hold that the CIAR, including §§ 1010(F), 1011, and
1012(F), is within the scope of the authority delegated
by the state constitution and the applicable statutes to
the Northwest Michigan Community Health Agency
(NMCHA) and the county boards of commissioners. I
further agree that the non-retaliation provision of the
CIAR, § 1011, falls within the public-policy exception to
the common-law at-will employment doctrine. I write
separately in order to clarify my views on the proper
application of Suchodolski v Michigan Consolidated
Gas Co, 412 Mich 692; 316 NW2d 710 (1982), to this
case and to further respond to Justice M
ARKMAN
’s
opinion.
I. NON-RETALIATION PROVISION
A. SUCHODOLSKI ANALYSIS
This Court asked the parties to address whether the
non-retaliation provision in the CIAR, § 1011, is consis-
tent with Suchodolski. McNeil v Charlevoix Co, 482
Mich 1014, 1014-1015 (2008).
1
I think that § 1011 of the
CIAR falls squarely within Suchodolski’s first ex-
1
Section 1011 of the CIAR reads: “No person or employer shall
discharge, refuse to hire or in any manner retaliate against any employee,
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ample of a public policy creating an exception to the
general rule of at-will employment.
Under the common law, there is a general rule of
at-will employment, meaning that “[i]n general, in
the absence of a contractual basis for holding other-
wise, either party to an employment contract for an
indefinite term may terminate it at any time for any,
or no, reason.” Suchodolski, 412 Mich at 694-695. As
discussed in the majority opinion, Suchodolski recog-
nized that, under the common law, there is an excep-
tion to the general at-will rule when the basis for
termination is contrary to public policy. Id. at 695.
Suchodolski stated that “an exception has been rec-
ognized to [the common-law at-will employment]
rule, based on the principle that some grounds for
discharging an employee are so contrary to public
policy as to be actionable.” Id. In addition to explain-
ing the general public-policy exception, Suchodolski
provided three examples of public policies that fall
within the exception. Id. at 695-696.
2
I would hold that § 1011 of the CIAR falls within the
first example provided in Suchodolski of a public policy
that creates an exception to the general rule of at-will
employment. The first Suchodolski example is an ex-
plicit legislative statement that prohibits the discharge
of an employee in retaliation for that employee’s acting
in accordance with a legally recognized right or duty.
Suchodolski, 412 Mich at 695. This is precisely what
§ 1011 is. Section 1011 provides that “[n]o person or
employer shall discharge, refuse to hire or in any
applicant for employment or customer because such employee, applicant
or customer exercises any right to a smoke-free environment afforded by
this regulation.”
2
As discussed here, I think that § 1011 of the CIAR falls within at least
the first Suchodolski example. But even if it did not, I would hold that it
is within the general public-policy exception.
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manner retaliate against any employee, applicant for
employment or customer because such employee, appli-
cant or customer exercises any right to a smoke-free
environment afforded by this regulation.” The county
boards of commissioners that organized the NMCHA
adopted the CIAR by a majority vote. They are local
legislative bodies and were exercising the legislative power
granted to them by the constitution and statutes of our
state.
3
Thus, the CIAR qualifies as a legislative state-
ment. Further, an employee’s right to a smoke-free
environment is a legally recognized right under the
CIAR.
4
Finally, the CIAR explicitly prohibits discharg-
ing an employee in retaliation for that employee’s
exercise of a legally recognized right. Therefore, I would
hold that § 1011 of the CIAR falls within Suchodolski’s
first example of a public policy that constitutes an
exception to the common-law at-will employment doc-
trine.
5
3
See Const 1963, art 7, § 8; MCL 46.11; MCL 333.2441(1).
4
Suchodolski referred to protection for employees acting in accor-
dance with a “statutory” right or duty, but, in the context of the
purpose of the exception, there is no reason to differentiate a legally
recognized right or duty created by a state statute and a legally
recognized right or duty created by local law. See also Gale v Oakland
Co Bd of Supervisors, 260 Mich 399, 404; 245 NW 363 (1932), stating
that “[a]n act passed by [the county board of commissioners] pursuant
to authority delegated or conferred by the legislature has the same
force as a statute passed by the legislature itself.” (Quotation marks
and citation omitted.)
5
This analysis is not inconsistent with Dudewicz v Norris-Schmid, 443
Mich 68, 78-80; 503 NW2d 645 (1993). Dudewicz held that the Whistle-
blowers’ Protection Act (WPA) preempted a claim under the public-policy
exception to the at-will employment rule because the WPA provides an
exclusive remedy for a violation of its non-retaliation provision.
Dudewicz, 443 Mich at 78-80. Therefore, Dudewicz limits the first
Suchodolski example of a public-policy exception to the at-will employ-
ment rule only where a legislative enactment has not only explicitly
prohibited the discharge of an employee acting in accordance with a
statutory right or duty, but also provided an exclusive remedy for
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violation of that explicit prohibition. Accord Humenny v Genex Corp,
390 F3d 901, 907-908 (CA 6, 2004) (stating that because Dudewicz
limited Suchodolski’s public-policy exception “by holding that ‘as a
general rule, the remedies provided by statute for violation of a right
having no common-law counterpart are exclusive, not cumulative,’ ”
when applying the public-policy exception, the Court should first
determine whether there is “a well-established legislative enactment
that addresses the particular conduct at issue,” and then, if there is,
address whether the statute “provides a remedy to plaintiffs who
allege violations of the statute”). To the extent that Vagts v Perry Drug
Stores, 204 Mich App 481, 485; 516 NW2d 102 (1994), held otherwise,
I would overrule it.
Justice M
ARKMAN
asserts that I have misread Dudewicz, but I respect-
fully submit that my reading of Dudewicz is the understanding advanced
by the Dudewicz Court, as evidenced by the opinion as a whole, and the
Court of Appeals cases relied on in Dudewicz. Justice M
ARKMAN
argues
that Dudewicz excludes application of the public-policy exception in all
instances where a statute or regulation “prohibits discharge in retalia-
tion for the conduct at issue.” Post at 113 n 8. To support this proposition,
he relies on the statement in Dudewicz that “ ‘[a] public policy claim is
sustainable... only where there also is not an applicable statutory
prohibition against discharge in retaliation for the conduct at issue.’ ”
Post at 112 n 8, quoting Dudewicz, 443 Mich at 80. That statement
supports Justice M
ARKMAN
’s argument if read standing alone, but in my
judgment the context of the opinion shows that the Court intended to
limit the public-policy exception only in instances in which a legislative
enactment both provides an anti-retaliation provision and also creates an
exclusive remedy. Dudewicz held that the Court of Appeals “should have
found that any public policy claim was preempted by the application of
the WPA,” reasoning that “as a general rule, the remedies provided by
statute for violation of a right having no common-law counterpart are
exclusive, not cumulative,” and because there was no common-law
counterpart to the WPA, “[t]he remedies provided by the WPA...are
exclusive....”Id. at 78-79. The Court thus concluded that “because the
WPA provides relief to [the plaintiff] for reporting his fellow employee’s
illegal activity, his public policy claim is not sustainable.” Id.at80.In
other words, Dudewicz held that where the WPA applies, the public-
policy exception to the common-law at-will employment doctrine is
preempted because the party was afforded relief by the WPA’s exclusive
statutory remedy. This reasoning does not suggest that a non-retaliation
provision in a legislative enactment would, standing alone, preempt a
public-policy claim if the legislative enactment either did not provide a
remedy or if the remedy provided was not exclusive.
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Further, this understanding of the public-policy exception is the same
understanding presented in the Court of Appeals cases cited for support
in Dudewicz, including the cases to which the Court of Appeals limited
the public-policy exception. See Dudewicz, 443 Mich at 79-80. For
example, in one of those cases, Ohlsen v DST Industries, Inc, 111 Mich
App 580, 586; 314 NW2d 699 (1981), the Court stated that the public-
policy exception “carve[s] out an exception to the general rule that either
party may terminate an employment at will for any reason or no reason
by providing the discharged employee a remedy where none is provided
under the statute .” (Quotation marks omitted; emphasis added.) The
Court held that the plaintiff in that case could not state a claim under the
public-policy exception, reasoning that
retaliatory discharges are expressly prohibited under the [appli-
cable] statute, and, in addition, a remedy is provided to an
employee who claims a violation of the statute. Therefore, unlike
the plaintiff in [an earlier case applying the public-policy excep-
tion], the plaintiff in the present case has a remedy provided by the
statute under which he is suing.
The [earlier] decision does not extend to this case where the
statute involved prohibits retaliatory discharge and provides an
exclusive remedy.[Ohlsen, 111 Mich App at 585-586 (emphasis
added; quotation marks omitted).]
Under the proper reading of Dudewicz, it is clear that it is generally
inapplicable here because the CIAR does not necessarily create an exclusive
remedial scheme that preempts applicable common-law claims, if such
claims exist. As a comparison, the WPA includes a non-retaliation provision
and also a remedial scheme that creates a cause of action for damages or
injunctive relief , grants jurisdiction to the appropriate court, enumerates the
burden of proof , and expressly provides remedies. MCL 15.363 and 15.364.
As discussed in part II of this opinion, I do not think that it is appropriate for
this Court to decide now to what extent §§ 1010(F) and 1012(F) of the CIAR
affect the availability of any private remedies, so it is unclear at this point
whether the CIAR creates a private remedy or whether that remedy could be
deemed exclusive. If those questions were properly before a court, and that
court determined that the CIAR does create a cause of action with private
remedies, and further determined that the boards of commissioners in-
tended such remedies to be exclusive, then, under Dudewicz, the public-
policy exception would not apply. I would further note that there are
circumstances under which § 1011 of the CIAR would be preempted by the
WPA and in those cases, under Dudewicz, the public-policy exception to the
general rule of at-will employment would not apply.
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B. RESPONSE TO JUSTICE MARKMAN’S
PARTIAL CONCURRENCE AND PARTIAL DISSENT
Justice M
ARKMAN
would hold that § 1011 of the CIAR
does not fall within the public-policy exception recog-
nized in Suchodolski because he “would not extend the
Suchodolski exceptions beyond the limits of statewide
public policy,” particularly where the local regulation is
“more restrictive or burdensome than our default state-
wide public policy.” Post at 115. I disagree because I
think that, like other validly enacted laws in Michigan,
an otherwise valid local law can be part of Suchodolski’s
public-policy exception.
To begin with, local laws are part of the state’s law
and policies, so it is difficult to evaluate them distinctly
from statewide policy. Justice M
ARKMAN
states that
“while the regulation does reflect the public policy of
the four counties that enacted it, it cannot, in my
judgment, be fairly said to reflect the public policy of the
state of Michigan.” Post at 115. But, as a state, Michi-
gan has a policy of delegating authority to county
boards of commissioners to act in matters “that relate
to county affairs,” as long as the local regulations do not
contravene statewide law. MCL 46.11(j); see also Const
1963, art 7, § 34.
6
This, in effect, creates a default
scheme of interwoven local and state regulation in areas
where local legislative bodies are authorized to act. So
long as local laws are within the scope of authority
delegated to local legislative bodies by the Legislature
and otherwise valid, then local laws are part of the
state’s legal and public-policy framework and reflect the
Legislature’s choice to enable overlapping state and
local regulation of that subject area.
7
6
See part II of this opinion.
7
Justice M
ARKMAN
argues that it would be bad policy to allow local
governments to create non-retaliation provisions because “it is consider-
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The Legislature has even more specifically identi-
fied public health as an area in which state and local
regulation is needed. The Legislature expressly au-
thorized boards of commissioners, in conjunction
with local health departments, to adopt standards “at
least as stringent as the standard established by state
law” in order to regulate as “necessary and appropri-
ate” to carry out the statutory duties of the local
health departments to “continually and diligently
endeavor to prevent disease [and] prolong life.” MCL
333.2441(1) and 333.2433(1). As the majority opinion
concludes, the CIAR falls within this authority.
Therefore, the Legislature has specifically contem-
plated that there may be a patchwork of regulation
across the state in this area.
8
ably more burdensome” to employers, “given that all 83 counties could
theoretically adopt varying local public policies.” Post at 115-116. This
outcome is the result of the Legislature’s decision to permit state and
local regulation in this area, however, and it is up to the Legislature to
determine whether the benefits of local regulation outweigh the costs
of a lack of statewide uniformity. Justice M
ARKMAN
states that this
position “fails to consider that the Legislature has already done just
that by having indicated that a county is only allowed to enact
ordinances that ‘do not contravene the general laws of this state.’ ” Post
at 116 n 11, quoting MCL 46.10b. I think that Justice M
ARKMAN
is
missing my point. Obviously, he and I have differing views about
whether the CIAR contravenes the general laws of the state, but I
cannot see how his concern that varying local regulations could be
“burdensome” to employers is relevant to that discussion. R egardless
of whether the CIAR contravenes the law of the state for a different
reason, it does not do so merely by virtue of the fact that it is a local
regulation, given that the state has an explicit policy of permitting a
patchwork of local regulation in many areas of law.
8
For this reason, I also disagree with Justice M
ARKMAN
’s statement that
because the CIAR is more restrictive than the Michigan Clean Indoor Air
Act (MCIAA), the CIAR does not “reflect the public policy of the state of
Michigan.” Post at 115. To the extent that the CIAR is more restrictive
than the MCIAA, but not preempted by the MCIAA, it reflects the state
policy to allow interwoven state and local laws in the area of public
health.
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In light of the interwoven nature of state and local
policies in Michigan, in my judgment, validly enacted
local laws are part of Suchodolski’s public-policy excep-
tion. The purpose of the public-policy exception is to
prevent an employer from discharging an employee on a
basis that is contrary to public policy. Suchodolski, 412
Mich at 695. Suchodolski provides that a public policy
can be established, at a minimum, by an explicit or
implicit legislative policy. See id. at 695-696. The CIAR
is an explicit legislative policy. Suchodolski did not
distinguish between statewide and local laws or state-
wide and local legislative bodies. Instead, Suchodolski
repeatedly referred to public policies that are “legisla-
tive statements,” a “legislative expression of policy,”
and a “legislative enactment,” without qualification.
9
Id. at 695-696. Suchodolski did recognize some limits to
the public-policy exception, but none applies where, as
here, the policy was enacted by a legislative body and
was intended to directly confer rights on employees.
10
I
do not think it serves the purposes of the public-policy
exception to create another limitation excluding laws
enacted by local legislative bodies because, in the coun-
ties where the CIAR has been enacted, it is part of the
governing law of the region and an employer is bound to
9
Justice M
ARKMAN
agrees that a county board of commissioners “is a
legislative body” and that the CIAR “constitutes the ‘law’ in the four
counties,” but nonetheless concludes that the Suchodolski public-policy
exception was not intended to include laws enacted by county boards
because a county board is not “the Legislature” and county laws are not
statewide laws. Post at 115. But Suchodolski does not provide a basis for
this distinction. The few cases and statutes to which Suchodolski
referred did involve laws adopted by the statewide Legislature, but
nothing in the opinion indicates that it found that to be significant.
10
The limits provided in Suchodolski were that a public policy cannot
be established by the code of ethics of a private association and that a
right cannot be inferred from extensive regulation if the regulation is not
“directed at conferring rights on the employees.” Suchodolski, 412 Mich
at 696-697.
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follow it. It would be contrary to law for an employer to
fire an employee on grounds contrary to the CIAR, and
it is therefore consistent with the purposes of the
public-policy exception to include local laws in the
public-policy exception. Therefore, I would not exclude
laws enacted by local legislative bodies from the public-
policy exception to the general rule of at-will employ-
ment.
II. PRIVATE CAUSE OF ACTION
This Court also asked the parties to address whether
the boards of commissioners had the authority to adopt
§§ 1010(F) and 1012(F) of the CIAR, which create
private causes of action.
11
McNeil, 482 Mich at 1014-
1015. I agree with the majority opinion’s conclusion
that §§ 1010(F) and 1012(F) are valid because they are
within the authority of the boards of commissioners and
do not contravene the general laws of the state.
As Justice M
ARKMAN
stated, the Michigan Constitu-
tion provides that county boards of commissioners have
only those legislative, administrative, and other powers
granted to them by law. Const 1963, art 7, § 8. The
scope of authority delegated to boards of commissioners
by law, however, is very broad. To begin with, the
constitution provides that the powers granted to coun-
ties by the constitution and by law “shall be liberally
construed in their favor” and “shall include those fairly
implied and not prohibited by this constitution.” Const
1963, art 7, § 34. Further, the Legislature very broadly
granted boards of commissioners the power to “pass
11
Section 1010(F) of the CIAR states that “[n]otwithstanding any
other provisions of this regulation, a private citizen may bring legal
action to enforce this regulation.” Section 1012(F) states that “[n]otwith-
standing any other provisions of this regulation, a private citizen may
bring legal action to enforce this regulation.”
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ordinances that relate to county affairs and do not
contravene the general laws of this state ....” MCL
46.11(j).
In light of article 7, §§ 8 and 34, of the Michigan
Constitution and MCL 46.11(j), this Court must address
two questions in order to determine whether §§ 1010(F)
and 1012(F) of the CIAR are within the powers del-
egated to boards of commissioners: (1) whether the laws
enabling boards of commissioners to enact regulations
adopted by local health departments fairly imply the
power to create a private right of enforcement and, if so,
(2) whether doing so otherwise contravenes the general
laws of the state or is prohibited by law.
First, in my judgment, §§ 1010(F) and 1012(F) are
within the authority delegated to boards of commission-
ers because the power to create a private right of action
is fairly implied by the relevant law delegating author-
ity to boards of commissioners. The state constitution
provides that laws concerning counties should be liber-
ally construed in their favor and shall be construed to
include “those [powers] fairly implied and not prohib-
ited by this constitution.” Const 1963, art 7, § 34. As
noted, the constitution and state statutes give boards of
commissioners broad authority to exercise their legisla-
tive power by adopting ordinances that relate to county
affairs. The power to create a private cause of action is
within the legislative power. See Mintz v Jacob, 163
Mich 280, 283; 128 NW 211 (1910).
12
Therefore, in my
judgment, the power to create a private cause of action
is fairly implied from the broad grant of legislative
power given to boards of commissioners in this area.
12
See also, generally, Gardner v Wood, 429 Mich 290, 301; 414 NW2d
706 (1987). I further note that, in Michigan, the ability to create a private
cause of action is also within the authority of the courts. Id.
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Justice M
ARKMAN
argues that we should infer that
MCL 46.10b was intended to limit boards of commis-
sioners’ power in a manner that would prevent the
creation of a private cause of action. As Justice M
ARKMAN
noted, MCL 46.11(j) provides that boards of commission-
ers may adopt sanctions pursuant to MCL 46.10b for
violations of ordinances adopted under MCL 46.11(j).
13
Justice M
ARKMAN
would hold that this limits the ability
of boards of commissioners to adopt sanctions not
included in MCL 46.10b, at least when boards of com-
missioners are acting solely under powers authorized in
MCL 46.11(j). To the extent that MCL 46.11(j) can be
read to limit the authority of boards of commissioners,
however, I do not think that §§ 1010(F) and 1012(F) of
the CIAR necessarily conflict with this limit given that
they do not expressly create any additional penalties
beyond those applicable for a violation of the ordi-
nance.
14
Sections 1010(F) and 1012(F) only state that “a
private citizen may bring legal action to enforce this
regulation”; they do not necessarily limit or enhance
the extent to which remedies are available.
15
Therefore,
13
The sanctions permitted by § 10b include imprisonment for a period
of not more than 90 days or a fine of not more than $500. Notably, the
Public Health Code authorizes additional penalties for violation of
regulations that, like the CIAR, are also promulgated under the authority
of the Public Health Code. See MCL 333.2441(2) and 333.2461.
14
The penalties that may be imposed for violations of the CIAR are
provided in § 1012(B) and (C) of the CIAR.
15
Notably, the question of whether boards of commissioners could
create a private cause of action against a private entity for a private
remedy, such as damages, is not before us. The question whether a court
could or should imply a cause of action for a private remedy from the
CIAR is also not before us. I do not think it is necessary or appropriate for
this Court to address these issues today given that the Court concludes
that the CIAR is at least facially valid and this is a declaratory action.
Although Michigan’s court rule permitting declaratory actions, MCR
2.605, should be broadly construed, there are still limitations to the scope
of a declaratory action. See Allstate Ins Co v Hayes, 442 Mich 56, 65-66;
98 484 M
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as the only question currently before this Court is
whether the boards of commissioners may create a
private cause of action to enforce the CIAR, and not
what remedies may be available through the private
cause of action, I do not think that MCL 46.10b limits
the power of the boards of commissioners to adopt
§§ 1010(F) and 1012(F).
Second, I do not think that §§ 1010(F) and 1012(F) of
the CIAR contravene the laws of the state. The author-
ity of boards of commissioners to create private rights of
action is limited to the extent that doing so would
contravene statewide law since, under article 7, § 8, of
the state constitution, boards of commissioners only
have the powers granted to them by law and, under
MCL 46.11(j), they cannot adopt ordinances that are
contrary to Michigan’s general laws. Justice M
ARKMAN
argues that the provisions of the CIAR creating private
causes of action are contrary to the general laws of the
state because they are inconsistent with MCL 46.10b
and therefore do not fall within Suchodolski’s public-
policy exception to the common-law at-will employment
doctrine. As discussed, I think that §§ 1010(F) and
1012(F) are at least facially valid and thus, at least to
the extent this Court is reviewing these sections today,
may fall within Suchodolski’s public-policy exception
and do not necessarily contravene the general laws of
the state.
III. CONCLUSION
For the reasons discussed here, I concur with the
majority opinion and conclude that the CIAR, including
§§ 1010(F), 1011, and 1012(F), should be upheld.
499 NW2d 743 (1993). I think it is beyond the scope of this declaratory
action for the Court to pontificate regarding the remedies available to
future private litigants who are not parties to this case.
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K
ELLY
, C.J., concurred with C
AVANAGH
,J.
M
ARKMAN
,J.(concurring in part and dissenting in
part). This case involves an indoor-air regulation pro-
posed by Northwest Michigan Community Health Agency
(NMCHA) (a four-county district health department)
that, pursuant to MCL 333.2441(1), became effective after
it was approved by the corresponding four county boards
of commissioners. The first part of the regulation imposes
a broad ban on smoking in public and private workplaces,
including business vehicles occupied by more than one
person, and requires any business (excluding restaurants)
that provides a designated smoking area to do so in a
separate enclosed area that is independently ventilated.
The second part of the regulation prohibits an employer
from taking an adverse employment action against a
person who asserts the right to a smoke-free environment,
and creates a private right of action by such person
against his or her employer.
After this regulation was approved, plaintiff business
owners in the affected counties filed an action for
declaratory relief, arguing that the NMCHA lacked the
authority to enact such a regulation and that the
regulation was preempted by the less restrictive Michi-
gan Clean Indoor Air Act, MCL 333.12601 et seq.
Plaintiffs also argued that the regulation was invalid
because it impinged on an employer’s common-law
right to discharge an at-will employee. Plaintiffs’ mo-
tion for summary disposition was denied by the trial
court, and they appealed.
The Court of Appeals upheld the regulation in a
published opinion. McNeil v Charlevoix Co, 275 Mich
App 686; 741 NW2d 27 (2007). The Court concluded
that the NMCHA possessed the authority to adopt the
regulation and that the regulation was not preempted
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by the Michigan Clean Indoor Air Act. The Court also
held that the regulation’s restriction on an employer’s
general right to discharge an at-will employee did not
violate Michigan’s “at-will” employment doctrine be-
cause it fell within exceptions to that doctrine set forth
in Suchodolski v Michigan Consolidated Gas Co, 412
Mich 692, 694-695; 316 NW2d 710 (1982).
We granted leave to appeal and asked the parties to
brief
(1) whether the local health department or the county
board of commissioners, the entity vested with final autho-
rization of the regulation, MCL 333.2441(1), can create a
right or private cause of action against a private entity that
alters Michigan’s at-will employment doctrine; (2) whether
the right or private cause of action created by Clean Indoor
Air Regulation § 1001 [sic: 1011] falls within the exceptions
set forth in Suchodolski v Michigan Consolidated Gas Co,
412 Mich 692 (1982), to Michigan’s at-will employment
doctrine; and (3) whether the exceptions to Michigan’s
employment at-will doctrine set forth in Suchodolski on
the basis of “public policy” are consistent with this Court’s
decision in Terrien v Zwit, 467 Mich 56 [648 NW2d 602]
(2002). [482 Mich 1014 (2008).]
In addition, I separately requested the parties to brief
“whether, under relevant legal and constitutional prin-
ciples, MCL 333.2441(1) properly delegates authority to
Charlevoix County and the [NMCHA] to promulgate
the regulations at issue in this case.” Id. at 1015.
Rather than writing an opinion of its own addressing
the issues we asked the parties to brief, the majority has
adopted the Court of Appeals opinion verbatim (except
that the preemption analysis has been excluded). As a
result, the majority opinion only peremptorily ad-
dresses the first and third issues that we specifically
asked the parties to brief in response to the Court of
Appeals opinion.
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I concur with the majority’s conclusion that the four
county boards of commissioners acting in conjunction
with the NMCHA possessed the authority to adopt that
part of the clean indoor air regulation that restricts
smoking and that such regulation is not preempted by
the Michigan Clean Indoor Air Act. I dissent, however,
from the conclusion that the part of the regulation that
creates a private cause of action against employers is
valid. Rather, I would hold that a county board of
commissioners cannot create a private cause of action
against a private entity that alters Michigan’s at-will
employment doctrine. I also dissent from the conclusion
that the part of the regulation that restricts smoking
fits within one of the Suchodolski exceptions to at-will
employment. I would not extend the Suchodolski excep-
tions to the at-will employment doctrine to the circum-
stances of this case.
I. NON-DELEGATION
The parties were asked to brief whether the regula-
tion was enacted pursuant to a proper delegation of
legislative authority. As explained in Taylor v Gate
Pharmaceuticals, 468 Mich 1, 10; 658 NW2d 127 (2003),
and Blue Cross & Blue Shield v Governor, 422 Mich 1,
51-55; 367 NW2d 1 (1985), the Legislature may not
delegate its legislative power to the executive branch.
The Legislature may, however, delegate a task to an
executive branch agency if it provides “sufficient stan-
dards.” Taylor, supra at 10 n 9. Such accompanying
standards are essentially viewed as transforming an
improper delegation of legislative power into a proper
exercise of executive power. See BCBSM, supra at 51.
The regulation at issue here was adopted pursuant to
MCL 333.2441(1), which provides in relevant part:
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A local health department may adopt regulations neces-
sary or appropriate to implement or carry out the duties or
functions vested by law in the local health department. The
regulations shall be approved or disapproved by the local
governing entity. The regulations shall become effective 45
days after approval by the local health department’s gov-
erning entity or at a time specified by the local health
department’s governing entity. The regulations shall be at
least as stringent as the standard established by state law
applicable to the same or similar subject matter.
[
1
]
Plaintiffs contend that this provision does not include
sufficient legislative standards or guidance for the en-
actment of regulations and thus amounts to an im-
proper delegation of legislative authority. I believe that
the non-delegation doctrine is ultimately inapplicable in
this case. This is because the provision specifies that
“[t]he regulations shall be approved or disapproved by
the local governing entity,” and the regulation only
becomes effective “after approval” by the governing
entity. That is, a local health department regulation
does not become effective unless it is approved by the
local governing entity, which in this case is the county
boards of commissioners. Thus, the provision contem-
plates a two-step process: first, the local health depart-
ment proposes a regulation and, second, the local gov-
erning entity approves the regulation. Only then does
the regulation take effect. When the elected county
boards of commissioners approved this regulation, they
were acting pursuant to their own legislative powers as
the governing entities of their respective local jurisdic-
tions. The non-delegation doctrine does not apply to the
proper exercise of legislative power by a legislative body.
1
This provision is part of the Public Health Code, as is the Michigan
Clean Indoor Air Act. Accordingly, MCL 333.2441(1) authorizes regula-
tions addressing any matter that comes within the Public Health Code
and is not limited to smoking regulations.
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See Bendix Safety Restraints Group v City of Troy, 215
Mich App 289; 544 NW2d 481 (1996), adopting the
dissent from Marposs Corp v City of Troy, 204 Mich App
156; 514 NW2d 202 (1994) (holding that actions taken
by a city council pursuant to a statute do not violate the
non-delegation doctrine because a city council exercises
legislative, not executive, power). Thus, when the
elected and accountable boards of commissioners ap-
proved the regulation, notwithstanding that the regu-
lation originated with the unelected and unaccountable
health department, they were exercising their own
legislative powers and were unaffected by the non-
delegation doctrine.
Therefore, I believe that the principal question here
is not whether the regulation was enacted pursuant to
an improper delegation of legislative authority, but
whether the county boards of commissioners, acting in
conjunction with the NMCHA, possessed the legislative
authority to adopt the regulation.
II. AUTHORITY
Plaintiffs argued below that the NMCHA lacked the
authority to adopt the regulation because its smoking
restrictions are stricter than those permitted under the
Michigan Clean Indoor Air Act.
2
The trial court and the
Court of Appeals disagreed, and I concur with those
courts’ conclusions, although on the basis of a different
rationale.
2
MCL 333.2441(1) specifically states that a local health department
regulation “shall become effective 45 days after approval by the local
health department’s governing entity....” Given that the regulation
would have no effect unless the county boards of commissioners had
approved it, we are effectively reviewing a county regulation, notwith-
standing the fact that the regulation may have originated in a local health
department.
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In the course of concluding that the NMCHA and the
county boards of commissioners possessed the authority
to enact the regulation, the Court of Appeals cited
among other things: (1) MCL 333.2433(1), which
charges local health departments to “continually and
diligently endeavor to prevent disease, prolong life, and
promote the public health through organized pro-
grams”; (2) MCL 333.2435(d), which provides that a
local health department may “[a]dopt regulations to
properly safeguard the public health”; and (3) MCL
333.2441(1), which authorizes the adoption of regula-
tions that “are necessary or appropriate to implement
or carry out the duties or functions vested by law in the
local health department.” After additionally noting that
MCL 333.1111(2) provides that the Public Health Code
is to be “liberally construed for the protection of the
health, safety, and welfare of the people of this state,”
the Court of Appeals concluded that these statutes
evinced a legislative intent to permit the instant regu-
lation.
I agree with the Court of Appeals that the boards of
commissioners, acting in conjunction with the NMCHA,
possessed the authority to adopt the part of the regula-
tion that restricts smoking. MCL 333.2435(d) specifi-
cally provides that a local health department may adopt
“regulations to properly safeguard the public
health ....” This provision granted the authority to
adopt the part of the clean indoor air regulation that
restricts smoking. MCL 333.2441(1) further provides
that a local health department “may adopt regulations
necessary or appropriate to implement or carry out the
duties or functions vested by law in the local health
department,” and protecting the public’s health, includ-
ing through the implementation of an anti-smoking
regulation if that is a local health department’s deter-
mination, would clearly seem to be a responsibility
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vested in such departments. And, the regulation is
consistent with MCL 333.2433(1), at least to the extent
it is designed to “prevent disease, [and] prolong life.”
The only limitation that the Legislature placed on the
promulgation of such a regulation by a local health
department, and the corresponding board of commis-
sioners, is that it “be at least as stringent as the
standard established by state law applicable to the same
or similar subject matter.” MCL 333.2441(1). The regu-
lation of smoking here is clearly more stringent than
the Michigan Clean Indoor Air Act and thus satisfies
this limitation.
3
III. PRIVATE CAUSE OF ACTION
Section 1011 of the regulation provides that “no person
or employer shall discharge, refuse to hire or in any
manner retaliate against any employee, applicant for
employment or customer because such employee, appli-
cant or customer exercises any right to a smoke-free
environment afforded by the regulation.” Section 1010(F)
provides that a “private citizen may bring legal action to
enforce this regulation.” And § 1012(F) provides that “an
employee or a private citizen may bring legal action to
enforce this regulation.” The lower courts implicitly con-
cluded that the private cause of action created by this
regulation is valid. I respectfully disagree and would hold
3
The parties agree that the regulation restricts smoking in a greater
range of public and private places than the Michigan Clean Indoor Air
Act. For example, the regulation applies to business vehicles occupied by
more than one person whereas the state statute does not. The regulation
also imposes greater obligations on businesses than the state statute. For
example, MCL 333.12605(1) provides that if an owner designates a
smoking area, “existing physical barriers and ventilation systems shall be
used to minimize the toxic effect of smoke in both smoking and adjacent
nonsmoking areas.” In contrast, § 1008(6) of the regulation requires a
separate enclosed area that is “independently ventilated” if an owner
designates a smoking area.
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that a county board of commissioners cannot create a
private cause of action that is in contravention of Michi-
gan’s “at-will” employment doctrine.
The majority concludes that the local health depart-
ment acting in conjunction with the county board of
commissioners can create a right or private cause of
action against a private entity that alters Michigan’s
at-will doctrine. The majority also concludes that the
private cause of action created by the regulation is
encompassed by the Suchodolski exceptions to the
at-will doctrine.
“Boards of supervisors shall have legislative, admin-
istrative and such other powers and duties as provided
by law.” Const 1963, art 7, § 8. Local governments,
including counties, have no inherent authority to enact
laws or to promulgate regulations because they are
governments of limited powers acting pursuant to del-
egated authority. City of Kalamazoo v Titus, 208 Mich
252, 262; 175 NW 480 (1919), quoting 1 Cooley, Consti-
tutional Limitations (7th ed), pp 163, 264 ff. A county
board of commissioners may not exercise a power not
vested in it by statute. Pittsfield School Dist No 9 v
Washtenaw Co Bd of Supervisors, 341 Mich 388, 398; 67
NW2d 165 (1954). A county can exercise only such
authority as is expressly or impliedly granted by a
superior level of government, and always subject to
such restrictions as are annexed to the grant. Id.
The Legislature granted authority in MCL 46.11(j) to
county boards of commissioners to
pass ordinances that relate to county affairs and do not
contravene the general laws of this state or interfere with
the local affairs of a township, city, or village within the
limits of the county, and pursuant to section 10b provide
suitable sanctions for the violation of those ordinances.
[Emphasis added.]
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Section 10b, MCL 46.10b, authorizes a county board of
commissioners to make a violation of an ordinance an
infraction that subjects an offender to imprisonment for
not more than 90 days or a fine of not more than $500.
A county board of commissioners is also authorized to
approve a local health department regulation that is “at
least as stringent as the standard established by state
law.” MCL 333.2441(1).
In my judgment, the part of the regulation that
allows an employee to bring a legal action to enforce the
regulation is beyond the authority of a county board of
commissioners to enact. This is because it contravenes
the law of at-will employment in this state. The general
rule is that “in the absence of a contractual basis for
holding otherwise, either party to an employment con-
tract for an indefinite term may terminate it at any
time for any, or no, reason.” Suchodolski, supra at
694-695. See also Rood v Gen Dynamics Corp, 444 Mich
107, 116; 507 NW2d 591 (1993).
The instant regulation would limit an employer’s
ability to terminate an at-will employee by creating a
new private cause of action by any employee against his
employer for wrongful discharge for asserting a right
“afforded by the regulation.” Thus, the regulation con-
travenes the general law of this state, the at-will
employment doctrine, and the county boards of com-
missioners simply do not possess the authority to act in
such disregard.
4
4
While MCL 333.2441(1) does authorize a county board of commission-
ers to approve a health department regulation that is “at least as strict as
state law,” it does not at the same time countermand the general
limitation in MCL 46.11(j) that a county board may not act in derogation
of the general laws of this state in non-health-related areas. The at-will
employment doctrine is obviously a fundamental aspect of the employ-
ment law of this state. The Legislature did not confer authority upon
county boards to enact regulations contrary to Michigan’s at-will employ-
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Moreover, the fact that MCL 46.10b authorizes a
county board to enact an ordinance and to provide for a
fine of no more than $500 or imprisonment of no more
than 90 days lends further support to the conclusion
that the creation of a private cause of action for the
violation of an ordinance is beyond the powers of a
county board.
5
This is because the express mention of
one thing in a statute generally implies the exclusion of
similar things. Pittsfield Charter Twp v Washtenaw Co,
468 Mich 702, 712; 664 NW2d 193 (2003). That is, the
listing of allowable sanctions for the violation of a local
ment doctrine. Contrary to Justice C
AVANAGH
’s suggestion, ante at 94 n 7,
I do not contend that the regulation contravenes the general laws of this
state merely because it is a local regulation.
The majority briefly discusses Mack v Detroit, 467 Mich 186, 189; 649
NW2d 47 (2002), and correctly notes that Mack declined to address
whether a city can create a private cause of action against a non-
governmental entity. But, Mack merely states that it “does not address
whether a city can create rights, protect against discrimination, or create
a cause of action against a nongovernmental entity.” Id. at 197 n 12
(emphasis omitted). Such language hardly suggests that a county, in
contravention of the laws of this state, can create a new private cause of
action against an individual or business.
Similarly, the majority states several times that the county boards in
enacting the instant regulation were acting as local “legislative bodies.”
I agree and have so stated. See, e.g., infra at 115 (“a county board...is
a legislative body”). But the issue here is only whether the anti-
retaliation portion of the regulation exceeds the authority given to the
boards by the Legislature. The majority devotes its efforts to an undis-
puted point, when there is a disputed point that merits analysis.
5
Justice C
AVANAGH
contends in his concurrence that a county board of
commissioner’s power to create a private right of action is “fairly implied
by the relevant law delegating authority to boards of commissioners.”
Ante at 97. I disagree. Counties have no inherent authority, being
governments of limited powers. Pittsfield School Dist No 9, supra at 398.
The power to create a private cause of action is not expressly given, and
such power is impliedly denied, to counties, as explained earlier, given
that they are only expressly allowed to enact ordinances that provide for
up to 90 days in a jail and up to a $500 fine.
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ordinance implies that non-listed sanctions are not
allowable. See, e.g., Saginaw Co v John Sexton Corp of
Michigan, 232 Mich App 202, 225; 591 NW2d 52 (1998),
which invalidated the penalty provisions of a county
ordinance because they exceeded the $500 limit set
forth in MCL 46.10b(1). Thus, even if the regulation did
not contravene the general rule of at-will employment,
which I believe it does, I would nonetheless conclude
that a county board may not create a private cause of
action against a private entity simply because they have
not been given the authority to do so.
6
6
Justice C
AVANAGH
states that §§ 1010(F) and 1012(F) of the regulation
“do not necessarily contravene the general laws of this state.” Ante at 99.
He rejects my argument that the limits on sanctions a board of commis-
sioners may adopt found in MCL 46.10b (a fine of no more than $500 or
imprisonment of no more than 90 days) imply the absence of authority to
create a private cause of action. Justice C
AVANAGH
asserts that these
limitations do not conflict with §§ 1010(F) and 1012(F) because these
sections “do not expressly create any additional penalties beyond those
applicable for a violation” of the regulation and thus do “not necessar-
ily...enhance the extent to which remedies are available.” Ante at 98. I
disagree. Sections 1010(F) and 1012(F) authorize a private party to bring
a legal action against a business. Justice C
AVANAGH
is apparently suggest-
ing that a judge, as a result of such a civil action, would only be able to
impose a remedy consistent with MCL 46.10b(1), although this is
nowhere made clear in either Justice C
AVANAGH
’s statement or in
§§ 1010(F) and 1012(F) themselves. Indeed, given that incarceration of
up to 90 days would not even be possible in a civil lawsuit, it is by no
means obvious why these regulations could be said to “incorporate” the
sanctions of MCL 46.10b(1). Moreover, how clear is it that the trial court
would not have available traditional civil remedies under §§ 1010(F) and
1012(F), such as injunctive or equitable relief? There is simply no basis in
either the opinion of this Court or in the laws themselves to suggest that
what Justice C
AVANAGH
asserts has any basis whatsoever. Perhaps what is
most significant is the reality that a fine under MCL 46.10b(1) would be
payable to the county while a civil judgment issued under §§ 1010(F) and
1012(F) would be payable to the plaintiff. This incentive for private
citizens to sue, in combination with the fact that such a lawsuit could be
brought by any private citizen, or by many private citizens, could easily
be viewed as creating a substantially more onerous burden on an
individual business, and therefore a substantially more effective remedy
110 484 M
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IV. SUCHODOLSKI
The majority holds that the smoking restriction of
the regulation was encompassed within the Suchodol-
ski “public policy” exceptions to Michigan’s at-will
employment doctrine. I reject this conclusion and also
would not extend these exceptions to include regula-
tions that do not apply statewide.
In Suchodolski, this Court recognized exceptions to
the at-will doctrine “based on the principle that some
grounds for discharging an employee are so contrary to
public policy as to be actionable.” Id. at 695.
7
The Court
cited as the circumstances in which such exceptions
would apply those involving: (1) “adverse treatment of
employees who act in accordance with a statutory right
or duty,” (2) an employee’s “failure or refusal to violate
a law in the course of employment,” or (3) an “employ-
ee’s exercise of a right conferred by a well-established
for a violation of the statute, than the possibility only of being charged
with an ordinance violation by a local prosecutor who almost certainly
will be burdened by the need to address more serious criminal violations.
For this reason, I believe that the authorization of a private lawsuit, in
addition to the relief provided under MCL 46.10b(1), can fairly be said to
expand the available remedies for a violation of the statute and thereby
contravene the general laws of this state.
7
We asked the parties to brief whether the Suchodolski exceptions are
consistent with this Court’s decision in Terrien v Zwit, 467 Mich 56; 648
NW2d 602 (2002). Suchodolski used the following terms to identify public
policy: “a statutory right or duty,” “a law,” and a “well-established
legislative enactment.” Suchodolski, supra at 695-696. In Terrien,this
Court indicated that in determining public policy, the focus of the
judiciary must ultimately be on the policies that, in fact, have been
adopted by the public through our various legal processes and that are
reflected in our state and federal constitutions, our statutes, the common
law, and administrative rules and regulations. Terrien, supra at 67 n 11.
I believe the Suchodolski exceptions are compatible with Terrien because
both cases indicate that “public policy” is to be discerned, not in the
personal attitudes of judges, but in objective and verifiable sources of the
law.
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legislative enactment.” Suchodolski, supra at 695-696.
Importantly, in Dudewicz v Norris Schmid, Inc, 443
Mich 68, 80; 503 NW2d 645 (1993),
8
the Court limited
8
Dudewicz was overruled in part on other grounds by Brown v Detroit
Mayor, 478 Mich 589; 734 NW2d 514 (2007). The majority fails ad-
equately to address Dudewicz. First, the majority says the non-retaliation
portion of the regulation does not violate Michigan’s at-will employment
doctrine because it fits within the Suchodolski exceptions, but then it
contradictorily argues that Dudewicz is irrelevant because the Whistle-
blowers Protection Act (WPA) does not negate the authority granted by
the Legislature. See ante at 86. Under Dudewicz, if the regulation is
enforceable under the WPA then a Suchodolski public policy claim does
not exist. While Justice C
AVANAGH
reads Dudewicz differently than I do,
he nonetheless recognizes that “there are circumstances under which
§ 1011 of the [regulation] would be preempted by the WPA and in those
cases, under Dudewicz, the public-policy exception to the general rule of
at-will employment would not apply.” Ante at 92 n 5.
However, Justice C
AVANAGH
contends that Dudewicz is “generally
inapplicable here because the [regulation] does not necessarily create an
exclusive remedial scheme that preempts applicable common-law claims,
if such claims exist,” ante at 92 n 5, and that “Dudewicz limits the first
Suchodolski example of a public-policy exception to the at-will employ-
ment rule only where a legislative enactment has not only explicitly
prohibited the discharge of an employee acting in accordance with a
statutory right or duty, but also provided an exclusive remedy for
violation of that explicit prohibition,” ante at 90-91 n 5. Finally, he
indicates that he would overrule the Court of Appeals opinion in Vagts v
Perry Drug Stores, Inc, 204 Mich App 481; 516 NW2d 102 (1994), to the
extent it holds otherwise. Ante at 91 n 5. I believe that Justice C
AVANAGH
has misread Dudewicz. The key part of that case states:
In those cases in which Michigan courts have sustained a public
policy claim, the statutes involved did not specifically proscribe
retaliatory discharge. Where the statutes involved did proscribe
such discharges, however, Michigan courts have consistently de-
nied a public policy claim. . . . A public policy claim is sustainable,
then, only where there also is not an applicable statutory prohibi-
tion against discharge in retaliation for the conduct at issue. As a
result, because the WPA provides relief to Dudewicz for reporting
his fellow employee’s illegal activity, his public policy claim is not
sustainable. [Dudewicz, supra at 79-80.]
Section 1011 of the regulation specifically proscribes a retaliatory dis-
charge against an employee if an employee “exercises any right to a
112 484 M
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Suchodolski, stating that a public policy claim is only
smoke-free environment afforded by the regulation.” Accordingly, under
Dudewicz, the Suchodolski exceptions do not apply because there is no need
for a public policy exception if a statute, or, as here, a regulation, prohibits
discharge in retaliation for the conduct at issue. While I do not believe those
parts of the regulation that create a private cause of action are valid, Justice
C
AVANAGH
and the majority take a different view. If valid, they provide all the
remedy that is needed and no cumulative Suchodolski exception exists
under Dudewicz. And, even though I would hold those parts of the
regulation prohibiting a retaliatory discharge invalid, it is still possible,
indeed likely, that those parts of the regulation promising an employee a
smoke-free environment may be enforceable pursuant to the WPA. Finally,
Justice C
AVANAGH
’s citation of Humenny v Genex Corp, 390 F3d 901 (CA 6,
2004), in support of his claim that Dudewicz only limits the first Suchodol-
ski exception when the statute (or regulation) provides “an exclusive remedy
for violation of that explicit prohibition” is inapt. The actual holding of
Humenny is that the first issue that must be addressed in considering a
public policy claim is whether the plaintiff has identified a well-established
legislative enactment that addresses the particular conduct at issue. Id. at
907. This is correct. Humenny also stated that if the cited statute (or
regulation) does not address the particular conduct at issue, there is no need
to reach the question whether the statute “provides a remedy to plaintiffs.”
Id. Again, this is correct. And, I note that Humenny used the phrase
“provides a remedy,” not “provides an exclusive remedy.” There simply is no
language in Humenny that purports to hold that that Dudewicz only limits
the first Suchodolski exception when the statute (or regulation) provides
“an exclusive remedy for violation of that explicit prohibition.” Ante at 90-91
n 5 (emphasis added). T o reiterate, Dudewicz limits the first Suchodolski
exception whenever the cited statute (or regulation) provides a remedy of its
own. Dudewicz, supra at 80. This is because a public policy remedy is
obviously not needed when the cited statute or regulation provides a remedy
of its own. Justice C
AVANAGH
’s citation of Ohlsen v DST Industries, Inc, 111
Mich App 580, 586; 314 NW2d 699 (1981), does not support his claim that a
cumulative “public policy” claim is allowable where the applicable statute
supplies a non-exclusive remedy. While Ohlsen observed that the remedy
provided by the statute was exclusive, this is a far cry from saying that it
would nonetheless have allowed a cumulative public policy claim if the
statute had provided for a non-exclusive remedy. Finally, Dudewicz noted
that remedies provided by a statute for violation of a right having no
common-law counterpart are generally exclusive, not cumulative. Dudewicz,
supra at 78. There can be no dispute that the common law did not provide
a right to a smoke-free work environment. Thus, the remedies available
under §§ 1010(F) and 1012(F) of the regulation are properly character-
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sustainable when there is no statutory prohibition
against discharge in retaliation for the conduct at
issue.
9
The majority holds that “ ‘the regulation’s restric-
tion of the general right to discharge an employee at
will is consistent with the exceptions to that doctrine
set forth in Suchodolski.’”Ante at 79.
10
I disagree for
ized as exclusive, and even under Justice C
AVANAGH
’s reading of
Dudewicz, a public policy claim is barred.
9
See also Clifford v Cactus Drilling Corp, 419 Mich 356; 353 NW2d 469
(1984), in which this Court held that a public policy exception claim did
not exist where an employer fired an employee for missing work on
account of a work-related injury for which workers’ compensation
benefits had been paid.
10
Justice C
AVANAGH
concludes that the regulation fits within the first
Suchodolski exception, for adverse treatment of employees who act “in
accordance with a legally recognized right or duty.” Ante at 89. However,
I would point out that the Court of Appeals in Vagts, supra at 485, stated
that Dudewicz “probably eliminated the first of the three grounds
identified in Suchodolski.” As I will discuss later, to the extent the
regulation may be enforceable through the Whistleblowers’ Protection
Act (WPA), MCL 15.361 et seq., this is correct. That is, if the WPA
prohibits discharge in retaliation for the conduct at issue, Suchodolski
does not even apply by the terms of Dudewicz. See also Shuttleworth v
Riverside Osteopathic Hosp, 191 Mich App 25, 27-28; 477 NW2d 453
(1991), which held that the WPA is the “exclusive remedy” available to an
employee terminated for reporting to any public body a violation of any
law or regulation of this state, a political subdivision, or the United
States. Indeed, I note that Justice C
AVANAGH
agrees that if the regulation
is enforceable through the WPA, a “public policy” claim would not be
allowed. Ante at 92 n 5. The majority states that the WPA does not negate
the authority granted by the Legislature in the Public Health Code. Ante
at 86. But, I have not argued that it does. Rather, I have argued that the
Public Health Code does not countermand the general limitation of MCL
46.11(j) on a county board to act in derogation of the general laws of this
state in non-health-related areas. See note 4 of this opinion.
The majority also states that the Legislature has authorized local
health departments to enforce part 126 of the Public Health Code and
rules promulgated under it by any “ ‘appropriate action authorized by
law.’ ” Ante at 87, quoting MCL 333.12613(2). This is true, but we are
114 484 M
ICH
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ARKMAN
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two reasons. First, I would not extend the Suchodol-
ski exceptions to include a local regulation that
conflicts with our statewide public policy. The Su-
chodolski exceptions refer to a “statutory right or
duty,” a “law,” and “well-established legislative en-
actment[s].” The instant regulation at issue is not a
statute, and it is not a “well-established legislative
enactment.” Nor is a county board “the Legislature,”
although it is a legislative body. While the regulation
constitutes the “law” in the four counties, it does not
constitute the “law” in any other Michigan counties,
much less in all the other Michigan counties. Moreover,
the public policy reflected in the regulation is stricter than
the public policy established by our Legislature in the
Michigan Clean Indoor Air Act and that now applies in all
other counties. That is, while the regulation does reflect
the public policy of the four counties that enacted it, it
cannot, in my judgment, be fairly said to reflect the public
policy of the state of Michigan. I would not extend the
Suchodolski exceptions beyond the limits of statewide
public policy, at the very least where a local regulation is
more restrictive or burdensome than our default state-
wide public policy. It is one thing for a private employer to
be legally accountable for a wrongful discharge that vio-
lates a statewide public policy as in Suchodolski, but it is
considerably more burdensome to subject employers to
wrongful discharge lawsuits for a termination that argu-
ably only violates a local public policy, given that all
reviewing a local regulation that allows a private citizen to file a lawsuit.
Given that county boards are only statutorily authorized to enact
ordinances that include a fine of up to $500 and a term in jail of up to 90
days, MCL 46.10b, and the fact that the express mention of one thing in
a statute generally implies the exclusion of similar things, a statute
authorizing a local health department to enforce a regulation hardly
constitutes authority for that department, acting in conjunction with a
county board, to authorize a private citizen, rather than the health
department, to enforce a regulation through a private lawsuit.
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83 counties could theoretically adopt varying local pub-
lic policies.
11
Justice C
AVANAGH
contends that under
Suchodolski “there is no reason to differentiate a le-
gally recognized right or duty created by a state statute
and a legally recognized right or duty created by local
law.” Ante at 90 n 4. I disagree. Indeed, the use of the
modifier “well-established” in Suchodolski in describ-
ing the kind of “legislative enactment” that would serve
as the foundation for its third exception further indi-
cates that Suchodolski itself was attempting to draw
distinctions between types of legislative enactments,
possibly in order to ensure the kind of notice that
would be much more effectively communicated to an
employer doing business in multiple counties
throughout the state by a statewide statute than by a
local regulation.
12
Second, each Suchodolski exception requires a valid
“statutory right or duty,” a “law,” or a “well-established
legislative enactment” before it is applicable. As previ-
ously explained, that part of the regulation that pur-
ports to create a private cause of action against private
entities is invalid because it exceeds the authority that
MCL 46.11(j) grants a county board. Thus, I do not join
the majority in its exercise of this Court’s common-law
11
Justice C
AVANAGH
contends that “it is up to the Legislature to
determine whether the benefits of local regulation outweigh the costs of
a lack of statewide uniformity.” Ante at 94 n 7. However, he fails to
consider that the Legislature has already done just that by having
indicated that a county is only allowed to enact ordinances that “do not
contravene the general laws of this state.” MCL 46.10b (emphasis added).
12
Suchodolski cited two cases as examples of situations in which a
plaintiff had been terminated in violation of a “well established” legisla-
tive enactment: Sventko v Kroger Co, 69 Mich App 644; 245 NW2d 151
(1976), and Hrab v Hayes-Albion Corp, 103 Mich App 90; 302 NW2d 606
(1981). Both of these cases involved workers’ compensation claims. There
are few statutes that are as well established and known to employers as
our Worker’s Compensation Disability Act, MCL 418.101 et seq.
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powers to extend the exceptions of Suchodolski to local
regulations.
13
Anticipating that this Court might conclude that the
private cause of action provisions of the regulation are
invalid, defendants point out that the regulation has a
severability clause
14
and argue that even if that part of
the regulation that restricts an employer’s general “at
will” authority to discharge an employee is invalid, the
remaining part of the regulation that restricts smoking
would still be enforceable pursuant to the Whistleblow-
ers’ Protection Act (WPA), MCL 15.361 et seq., because
the regulation comes within the WPA’s prohibition
against discriminating against an employee for report-
ing a violation of a regulation promulgated by a political
subdivision of the state.
MCL 15.362 provides:
13
Const 1963, art 3, § 7, provides: “The common law and the statute
laws now in force, not repugnant to this constitution, shall remain in
force until they expire by their own limitations, or are changed, amended
or repealed.” As noted in Placek v Sterling Hts, 405 Mich 638, 656-657,
275 NW2d 511 (1979), this Court may develop the common law through
its decisions. Justice C
AVANAGH
states that he would not “exclude laws
enacted by local legislative bodies from the public-policy exception....”
Ante at 96. I believe it is more accurate to describe the majority as
extending Suchodolski to encompass local regulations. Justice C
AVANAGH
acknowledges that the cases and statutes cited in Suchodolski included
laws adopted by our Legislature, but claims that nothing in the opinion
indicates the Court found that to be significant. Ante at 95 n 9. I disagree.
Suchodolski only identified statewide laws, and that Court’s use of the
words “well-established legislative enactment[s]” strongly suggests it
was concerned with notice issues. This discussion, I believe, fairly
communicates that local regulations would rarely be characterized as
constituting “well-established legislative enactment[s]” in the same
manner as statewide enactments.
14
Section 1016 of the regulation provides that if any provision, clause,
sentence, or paragraph of the regulation shall be held invalid, such
invalidity shall not affect the other provisions of the regulation and the
provisions of the regulation that are declared invalid shall be severable.
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An employer shall not discharge, threaten, or otherwise
discriminate against an employee regarding the employee’s
compensation, terms, conditions, location, or privileges of
employment because the employee, or a person acting on
behalf of the employee, reports or is about to report,
verbally or in writing, a violation or a suspected violation of
a law or regulation or rule promulgated pursuant to law of
this state, a political subdivision of this state, or the United
States to a public body, unless the employee knows that the
report is false, or because an employee is requested by a
public body to participate in an investigation, hearing, or
inquiry held by that public body, or a court action. [Em-
phasis added.]
Defendants argue that the regulation here clearly
comes within the language “law or regulation or rule
promulgated pursuant to a law of this state, [or] a
political subdivision of this state” in the WPA. Thus,
defendants contend that the regulation may be enforced
by a plaintiff under the WPA. Because this argument
was not considered by the trial court or the Court of
Appeals, I would remand to the Court of Appeals to
consider this issue in the first instance. If defendants
are correct that the regulation is enforceable under the
WPA, then the Dudewicz limitation, to wit, that a public
policy claim is only sustainable when there is no appli-
cable statutory prohibition against discharge in retali-
ation for the conduct at issue, would apply because the
WPA would constitute an applicable statutory prohibi-
tion against discharge in retaliation for the conduct at
issue.
Finally, to the extent that plaintiffs’ arguments sug-
gest that the part of the regulation that restricts
smoking more stringently than the Michigan Clean
Indoor Air Act is “unwise” and results in “bad policy,”
these concerns must be addressed to the Legislature or
the county boards of commissioners. People v Kirby, 440
Mich 485, 493-494; 487 NW2d 404 (1992). See also
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Halloran v Bhan, 470 Mich 572, 579; 683 NW2d 129
(2004). Plaintiffs, of course, are also free to pursue
remedies through the electoral and political processes.
15
V. CONCLUSION
I agree with the majority that the NMCHA, acting in
conjunction with the local boards of commissioners, pos-
sesses the authority to enact that part of the regulation
that restricts smoking “at least as stringently” as the
Michigan Clean Indoor Air Act, and this regulation is not
preempted by the Michigan Clean Indoor Air Act. I
dissent, however, from the majority’s implicit ruling that
the part of the regulation that creates a private cause of
action against private employers is valid. I would hold
instead that MCL 46.11(j) precludes a county board of
commissioners from creating a private cause of action
against a private entity that alters Michigan’s “at-will”
employment doctrine. I also dissent from the conclusion
that the part of the regulation that restricts smoking fits
within one of the Suchodolski exceptions to “at-will”
employment, and I would not extend the Suchodolski
exceptions to include local regulations, at the very least
where such regulations conflict with statewide public
policy. Finally, I would remand to the Court of Appeals to
consider in the first instance whether an employee could
file a cause of action under the WPA to enforce his or her
rights under the part of the regulation that restricts
smoking.
C
ORRIGAN
and Y
OUNG
, JJ., concurred with M
ARKMAN
,J.
15
Indeed, we are advised that Charlevoix County, though it did not
formally withdraw its ratification of the regulation, recently decided not
to enforce the regulation. I do not know for certain, but I presume, that
some or much of the impetus for this decision was a function of political
and other related activities in that county.
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PEOPLE v McGRAW
Docket No. 132876. Argued May 5, 2009 (Calendar No. 2). Decided July
28, 2009.
Matthew L. McGraw pleaded guilty in the Saginaw Circuit Court to
three counts of breaking and entering a building with intent to
commit larceny. At sentencing, the court, Leopold P. Borrello, J.,
assessed 10 points for offense variable (OV) 9 (number of victims),
MCL 777.39, for one of the convictions after concluding that the
defendant had placed at least two victims in danger when he fled the
police after breaking into an unoccupied store. Those points resulted
in a higher recommended minimum sentence range under the
sentencing guidelines and the imposition of a minimum sentence
within that higher range. The defendant applied for leave to appeal,
which the Court of Appeals denied in an unpublished order, entered
September 24, 2004 (Docket No. 255864). In lieu of granting leave to
appeal, the Supreme Court remanded the case to the Court of
Appeals for consideration as on leave granted. 473 Mich 877 (2005).
The Court of Appeals, W
HITBECK
, C.J., and S
AAD
and S
CHUETTE
,JJ.,
affirmed in an unpublished opinion per curiam, issued November 16,
2006 (Docket No. 264052). The Court of Appeals concluded that
assessing 10 points under OV 9 was proper because the defendant’s
conduct in fleeing after the breaking and entering had been com-
pleted placed two or more persons in danger of injury during the
criminal transaction. The Supreme Court granted the defendant
leave to appeal. 483 Mich 876 (2009).
In an opinion by Chief Justice K
ELLY
, joined by Justices
C
AVANAGH
,M
ARKMAN
, and H
ATHAWAY
, the Supreme Court held:
Offense variables are properly scored by reference only to the
sentencing offense unless a particular offense variable statute spe-
cifically provides otherwise. In this case, breaking and entering the
building was the sentencing offense. The statute for OV 9 does not
provide for consideration of conduct that occurred after the comple-
tion of the sentencing offense. The sentencing court erred by consid-
ering the entire criminal transaction and using the defendant’s flight
from the police after he completed the sentencing offense when it
scored the offense variable. Considering only the defendant’s conduct
involved in breaking and entering an unoccupied building, the
sentencing court should have assessed zero points for OV 9 because
no one was placed in danger.
120 484 M
ICH
120 [July
Reversed and remanded.
Justice C
ORRIGAN
, joined by Justices W
EAVER
and Y
OUNG
, dissent-
ing, would hold that the defendant waived his challenge to the scoring
of OV 9 when his attorney stated at sentencing that the guidelines
minimum sentence ranges for his offenses “appear to be correct.”
The defendant’s counsel did not provide ineffective assistance of
counsel by doing so because the caselaw in effect at the time of
sentencing and the record both supported assessing 10 points for OV
9. The rule established by the majority opinion artificially limits, for
purposes of sentencing, the duration of an offense to the time
necessary to complete the elements defining the offense and disre-
gards the well-established res gestae principle that considers the
entire transaction or uninterrupted chain of events surrounding the
commission of an offense.
S
ENTENCES —
S
ENTENCING
G
UIDELINES —
O
FFENSE
V
ARIABLES —
S
CORING
O
F-
FENSE
V
ARIABLES
.
Offense variables under the sentencing guidelines must be scored by
reference only to the offense for which the defendant is being
sentenced unless an offense variable statute specifically provides
otherwise and allows consideration of conduct beyond the sentenc-
ing offense (MCL 777.1 et seq.).
Michael A. Cox, Attorney General, B. Eric Restuccia,
Solicitor General, Michael D. Thomas, Prosecuting At-
torney, and Randy L. Price, Assistant Prosecuting At-
torney, for the people.
State Appellate Defender (by Anne Yantus and Kim
M. McGinnis) for the defendant.
Amicus Curiae:
Brian A. Peppler and Timothy K. Morris for the
Prosecuting Attorneys Association of Michigan.
K
ELLY
, C.J. This case involves further analysis of the
issue presented in People v Sargent.
1
There we held that
offense variable (OV) 9 in the sentencing guidelines
2
1
People v Sargent, 481 Mich 346; 750 NW2d 161 (2008).
2
MCL 777.1 et seq.
2009] P
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RAW
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cannot be scored using uncharged acts that did not
occur during the same criminal transaction as the
sentencing offense. Today we decide whether the of-
fense variables should be scored solely on the basis of
conduct occurring during the sentencing offense
3
or
also using conduct occurring afterward.
We hold that a defendant’s conduct after an offense is
completed does not relate back to the sentencing of-
fense for purposes of scoring offense variables unless a
variable specifically instructs otherwise. Therefore, in
this case, defendant’s flight from the police after break-
ing and entering a building was not a permissible basis
for scoring OV 9. Accordingly, we reverse the judgment
of the Court of Appeals and remand this case to the
circuit court for resentencing.
FACTS AND PROCEDURE
Defendant broke into a general store in Marion T own-
ship on June 28, 2002, broke into an audio store on July
20, 2002, and then broke into the same general store again
on January 5, 2003. No one was in the stores during the
break-ins. During the January 5 incident, a witness called
the police after seeing defendant and two accomplices
loading stolen goods into a car. A fter defendant and his
accomplices left the scene of the crime, a police officer saw
the getaway car traveling on the road and pursued it. The
chase ended when the vehicle entered a yard and crashed
into a chain-link fence. The occupants fled on foot, but
defendant was captured.
Defendant pleaded guilty to three counts of breaking
and entering a building with intent to commit larceny
4
3
The sentencing offense is the crime of which the defendant has been
convicted and for which he or she is being sentenced.
4
MCL 750.110.
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in exchange for the dismissal of other charges, including
fleeing and eluding the police.
5
In scoring the offense
variables, the sentencing court assessed 10 points under
OV 9 because it found that defendant had placed at least
two victims in danger. The court stated that it would
sentence defendant within the guidelines recommenda-
tion and imposed concurrent prison terms of 9 to 30 years,
6 to 30 years, and 6 to 30 years. The 9-year sentence
resulted from the assessment of 10 points under OV 9 for
fleeing from the police after the January 5 break-in.
6
Defendant’s timely request for the appointment of
appellate counsel was denied, as was his timely pro se
motion for resentencing challenging the scoring of OV
9. The Court of Appeals denied defendant’s pro se
application for leave to appeal for lack of merit, but this
Court remanded the case to the Court of Appeals for
consideration as on leave granted.
7
The Court of Appeals affirmed defendant’s convic-
tion, concluding that the record supported the assess-
ment of 10 points under OV 9 because there were two to
nine victims.
8
We granted defendant’s application for
leave to appeal.
9
THE PROPER APPROACH TO SCORING OFFENSE VARIABLES
The interpretation and application of the legislative
sentencing guidelines, MCL 777.1 et seq. involve legal
questions that this Court reviews de novo.
10
5
MCL 750.479a(3).
6
Had no points been assessed under OV 9, the guidelines minimum
sentence range would have been 19 to 76 months, and defendant’s 9-year
sentence would have exceeded the recommended sentencing range.
7
People v McGraw, 473 Mich 877 (2005).
8
People v McGraw, unpublished opinion per curiam, issued November
16, 2006 (Docket No. 264052); 2006 WL 3334585.
9
People v McGraw, 483 Mich 876 (2009).
10
People v Morson, 471 Mich 248, 255; 685 NW2d 203 (2004).
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We are called on to provide further detail delineating
the scope of conduct that sentencing courts should
consider when scoring the offense variables of the
statutory sentencing guidelines. Defendant argues that
the variables are to be scored using an offense-specific
approach. Under this approach, only conduct occurring
during the offense of which the defendant was convicted
may be considered. The prosecution, on the other hand,
argues that the guidelines must be scored using a
transactional approach. Under this approach, a con-
tinuum of the defendant’s conduct is examined, which
can extend far beyond the acts that satisfy the elements
of the sentencing offense.
In analyzing this scoring issue, we read the statutory
provision for OV 9 in the context of the entire statute
“so as to produce, if possible, a harmonious and consis-
tent enactment as a whole.”
11
The fair and natural
import of the provision governs, considering the subject
matter of the entire statute.
12
We addressed what conduct the sentencing court
should consider in P eople v Sargent.
13
We explained that
“the offense variables are generally offense-specific.
The sentencing offense determines which offense vari-
ables are to be scored in the first place, and then the
appropriate offense variables are generally to be scored
on the basis of the sentencing offense.”
14
We stated that
usually “only conduct ‘relating to the offense’ may be
taken into consideration when scoring the offense vari-
ables.”
15
Our determination about how offense variables
should be scored was based on a reading of the senten-
11
Grand Rapids v Crocker, 219 Mich 178, 182-183; 189 NW 221 (1922).
12
People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999).
13
People v Sargent, 481 Mich 346; 750 NW2d 161 (2008).
14
Id. at 348.
15
Id. at 349.
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cing guidelines statutes as a whole. We relied on the
Legislature’s use of the terms “the offense” and “each
offense” in MCL 777.21:
MCL 777.21 instructs us on how to score the sentencing
guidelines. MCL 777.21(1)(a) instructs us to “[f]ind the
offense category for the offense . . . [and] determine the
offense variables to be scored for that offense cat-
egory....”(Emphasis added.) MCL 777.21(2) instructs us
to “score each offense” if “the defendant was convicted of
multiple offenses....”(Emphasis added.) MCL 777.21(3),
which pertains to habitual offenders, instructs us to “de-
termine the... offense variable level... based on the
underlying offense” and then to increase the upper limit of
the recommended minimum sentence range as indicated.
(Emphasis added.) This language indicates that the offense
variables are generally offense specific.
[
16
]
We found it telling in Sargent that the individual
offense variables presume that the sentencing offense is
the reference point for scoring purposes. This is because
only when conduct occurring after commission of the
sentencing offense is to be considered in scoring do the
variables spell out the scope of that conduct:
That the general rule is that the relevant factors are
those relating to the offense being scored is further sup-
ported by the fact that the statutes for some offense
variables specifically provide otherwise. For instance, MCL
777.44(2)(a) provides that when scoring OV 14 (whether
the offender was a leader in a multiple-offender situation),
“the entire criminal transaction should be considered....”
For other offense variables, the Legislature unambiguously
made it known when behavior outside the offense being
scored is to be taken into account. OV 12 (contemporane-
ous felonious acts), for example, applies to acts that oc-
curred within 24 hours of the sentencing offense and have
not resulted in separate convictions. MCL 777.42(2)(a). OV
13 (continuing pattern of criminal behavior) explicitly
16
Id. at 348.
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permits scoring for “all crimes within a 5-year period,
including the sentencing offense,” regardless of whether
they resulted in convictions. MCL 777.43(2)(a). OV 16
(property obtained, damaged, lost, or destroyed) provides
that in “multiple offender or victim cases, the appropriate
points may be determined by adding together the aggregate
value of the property involved, including property involved
in uncharged offenses or charges dismissed under a plea
agreement.” MCL 777.46(2)(a). Finally, OV 8 (asportation
or captivity of victim) specifically focuses on conduct “be-
yond the time necessary to commit the offense.” MCL
777.38(1)(a). That the Legislature has explicitly stated that
conduct not related to the offense being scored can be
considered when scoring some offense variables strength-
ens our conclusion that, unless stated otherwise, only
conduct that relates to the offense being scored may be
considered.
[
17
]
As we explained in Sargent, it is telling that the
Legislature included language in particular variables
explicitly instructing the sentencing court to consider
factors or conduct beyond the sentencing offense itself;
however, it included no such language in other vari-
ables, such as OV 9. If the Legislature had intended a
court scoring the sentencing guidelines to use a trans-
actional approach, much of the language in some of the
offense variables would have been surplusage. In inter-
preting a statute, we avoid a construction that would
render part of the statute surplusage or nugatory.
18
If we read the sentencing guidelines as offense-
specific by default, the language defining the scope of
17
Id. at 349-350. Although Sargent held that the Legislature intended
an offense-specific view to scoring the offense variables, we did not
definitively answer the question whether transactional conduct may be
considered. It was not necessary to reach that question to resolve the case
because it was clear that the defendant’s conduct did not occur during the
same criminal transaction. The conduct in question was remote from the
sentencing offense. Id. at 350-351.
18
Baker v Gen Motors Corp, 409 Mich 639, 665; 297 NW2d 387 (1980).
126 484 M
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conduct for particular offense variables is not surplus-
age. For example, points are assessed under OV 14 if the
offender was a leader in a multiple-offender situation.
The statute provides that the “entire criminal transac-
tion should be considered” when scoring this offense
variable.
19
When we acknowledge that the default pro-
cedure is to score the offense variables using an offense-
specific approach, the instruction for OV 14 takes on
significance. It requires OV 14 to be scored differently
from most. Points must be assessed for conduct extend-
ing beyond the sentencing offense. The Legislature’s
wording of the offense variable statutes implies a de-
fault rule that the variables are to be scored considering
the sentencing offense alone. It is only when conduct
beyond the sentencing offense is to be considered that
the variables address the scope of that conduct.
Furthermore, the sentencing guidelines set forth a
comprehensive, detailed scheme for scoring. Every of-
fense to which the guidelines apply is listed in a rather
voluminous part 2, comprising MCL 777.11 through
777.19.
20
When providing rules for guidelines scoring,
the Legislature took pains to set forth step-by-step
instructions, pointing with particularity to where one
must look to make the necessary calculations. Given the
Legislature’s attention to detail, we do not believe that
it intended to deviate from what otherwise appears to
be an offense-specific orientation. If assessing points for
conduct beyond the sentencing offense were to be the
norm, the Legislature would have delineated the scope
of that conduct, as it did with several specific offense
variables.
21
19
MCL 777.44(2)(a).
20
See MCL 777.21(1).
21
The dissent claims that we fail to explain on what authority we limit
the scoring for offense variables to the sentencing offense. It was the
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The prosecution argues that our decision in People v
Morson
22
reflected our belief that the Legislature in-
tended sentencing courts to consider a defendant’s
entire criminal transaction when scoring the variables.
We disagree. We never held in Morson that conduct
beyond the sentencing offense can be a basis for scoring
OV 9. There, 10 points were assessed under OV 9
because the defendant endangered two victims; the
sentencing offense was armed robbery.
23
The defen-
dant’s accomplice robbed a woman of her purse at
gunpoint.
24
The sentencing court concluded that there
were two “victims” for purposes of OV 9: the woman
who was robbed and another man standing nearby who
was shot by the perpetrator.
25
We concluded that the sentencing court did not err by
finding that the person near the woman when the
perpetrator stole her purse was “placed in danger of
injury or loss of life” by the armed robbery.
26
Therefore,
he was a victim under OV 9.
27
Legislature, not we, that drafted and enacted the detailed and complex
sentencing scheme. It was the Legislature that chose to limit the scoring for
offense variables to the sentencing offense. The dissent loses sight of the
most important piece of the puzzle: the statute. Instead, it turns to res
gestae and Court of Appeals decisions to support its position, one of which
did not even involve the statutory sentencing guidelines, but instead
involved the old judicial sentencing guidelines. See P eople v Chesebro, 206
Mich App 468; 522 NW2d 677 (1994). Furthermore, the dissent rests its res
gestae argument on People v Gillis, 474 Mich 105; 712 NW2d 419 (2006),
which interpreted the felony-murder statute, quite a different statute from
the sentencing guidelines statute. When the smoke from the dissent clears,
one can see that its arguments are far from the mark.
22
People v Morson, 471 Mich 248; 685 NW2d 203 (2004).
23
Id. at 254.
24
Id. at 253.
25
Id. at 253, 261.
26
See MCL 777.39(2)(a), as added by 1998 PA 317, which is also the
version of the statute applicable in this case.
27
Id. at 262.
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Our decision in Morson did not delineate the scope of
conduct to be considered in scoring offense variables.
28
It simply held that the sentencing court did not err in
scoring OV 9 under the particular facts of that case. As
we explained in Sargent, “in a robbery, the defendant
may have robbed only one victim, but scoring OV 9 for
multiple victims may nevertheless be appropriate if
there were other individuals present at the scene of the
robbery who were placed in danger of injury or loss of
life.”
29
That is precisely what this Court held had
happened in Morson.
Reading the provisions of MCL 777.1 et seq. in
harmony suggests that the offense variables are scored
by reference only to the sentencing offense, except
where specifically provided otherwise.
This does not mean that transactional conduct may
never influence a defendant’s sentence. Such a result
would frustrate the Legislature’s intention of having
the guidelines promote uniformity in sentencing. Noth-
ing precludes the sentencing court from considering
transactional conduct when deciding what sentence to
impose within the appropriate guidelines range and
whether to depart from the guidelines recommenda-
tion. As this Court explained in People v Babcock,
in considering whether to depart from the guidelines, the trial
court must ascertain whether taking into account an alleg-
edly substantial and compelling reason would contribute to a
more proportionate criminal sentence than is available within
the guidelines range. In other words, if there are substantial
and compelling reasons that lead the trial court to believe
that a sentence within the guidelines range is not proportion-
ate to the seriousness of the defendant’s conduct and to the
28
Morson explicitly avoided this question because there were three
competing views advocated by three concurring and dissenting justices.
29
Sargent, 481 Mich at 351 n 2.
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seriousness of his criminal history, the trial court should
depart from the guidelines.
[
30
]
In addition, of course, the prosecution is always free to
charge a defendant with multiple offenses if they exist,
rather than a single offense. The defendant then would be
sentenced for all offenses for which a conviction was
obtained.
31
Our decision today “not only respects the
defendant’s right to be sentenced on the basis of law,
but it also respects the trial court’s interest in having
defendant serve the sentence that it truly intends.”
32
30
People v Babcock, 469 Mich 247, 264; 666 NW2d 231 (2003). This Court
has further recognized that conduct beyond the sentencing offense can be
considered for purposes of departing from the guidelines. See, for example,
People v Price, 477 Mich 1; 723 NW2d 201 (2006). Price observed that,
although foreign convictions cannot be considered under prior record
variable 1, and prior offenses not occurring within five years of the
sentencing offense cannot be considered under OV 13, “they can, under
appropriate circumstances, give rise to a substantial and compelling reason
to justify a departure from the guidelines range....”Id.at5&n3The
dissent’s “sky is falling” prophecy for the sentencing scheme is unfounded;
contrary to the dissent’s contention, post at 154, our reasoning is, in fact,
supported “by the law of this state.” Also contrary to the dissent’s conten-
tion, post at 154, we are not suggesting that “sentencing courts should
depart freely from the guidelines....”Tothecontrary, we are suggesting
that a subsequent criminal offense may rise to the level of a substantial and
compelling reason that justifies a departure from the sentencing guidelines.
T o the extent that it does, consistently with Babcock and People v Smith,
482 Mich 292; 754 NW2d 284 (2008), it can certainly be taken into
consideration by the sentencing court.
31
Therefore, with regard to the dissent’s hypothetical examples, post at
137, the prosecution could charge the defendant with the subsequently
committed offenses. The defendant could be charged for felonious as-
sault, MCL 750.82, in the first hypothetical and mutilation of a dead body,
MCL 750.160, in the second. Alternatively, the sentencing court could
consider the subsequently committed offenses and the aggravating
circumstances at sentencing. For example, it could consider the defen-
dant’s sending the photographs to the victim’s family in determining
what sentence within the guidelines range to impose or whether to depart
from the guidelines recommendation.
32
People v Francisco, 474 Mich 82, 92; 711 NW2d 44 (2006).
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THE PROPER SCORING OF OV 9 IN THIS CASE
A defendant is entitled to be sentenced according to
accurately scored guidelines and on the basis of accu-
rate information.
33
A sentence is invalid when a sen-
tencing court relies on an inappropriate guidelines
range.
34
“[A] sentence that is outside the appropriate
guidelines sentence range, for whatever reason, is ap-
pealable regardless of whether the issue was raised at
sentencing, in a motion for resentencing, or in a motion
to remand.”
35
However, in this case, the issue was raised
in a motion for resentencing.
36
33
Id. at 88-89.
34
Id. at 89.
35
People v Kimble, 470 Mich 305, 310; 684 NW2d 669 (2004).
36
The dissent contends that the defendant waived any sentencing
error. However, this theory was never raised by the prosecution. Failure
to brief an issue on appeal constitutes abandonment. Mitcham v Detroit,
355 Mich 182, 203; 94 NW2d 388 (1959). “[A] party is bound to the theory
on which the cause was prosecuted or defended in the court below.” Gross
v Gen Motors Corp, 448 Mich 147, 162 n 8; 528 NW2d 707 (1995); see also
Dwelley v Tom McDonnell, Inc, 334 Mich 229, 233; 54 NW2d 217 (1952).
Because the prosecution failed to raise the issue of defendant’s waiver, we
need not consider it. Because we simply do not consider the prosecution’s
waiver argument, contrary to the dissent’s contention, post at 138, we do
not “creat[e] a new ‘revival of waived errors’ rule....”That is, we do not
conclude that defendant’s filing of a motion for resentencing would
“revive” an issue that the defendant had, indeed, already expressly
waived. We are also not suggesting that the prosecution’s failure to raise
an issue constitutes a “confession of substantive error,” post at 140-141.
Thus, we are not by any stretch of the imagination overruling People v
Smith, 439 Mich 954 (1992), and we are not creating any “automatic rule
of reversal,” post at 141. In addition, contrary to the dissent’s assertion,
post at 139, we do not contend that an appellee is required to file a
cross-appeal to raise a waiver argument. We simply conclude that an
appellee should at some point actually raise the waiver argument. And if
he or she does not do so, this Court may, although it is not required to,
choose not to raise and address the argument on its own. This is hardly
a “novel view.” See, e.g., People v Hamacher, 432 Mich 157, 168; 438
NW2d 43 (1989), which refused to address the prosecution’s waiver
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The sentencing court assessed 10 points under OV 9
for defendant’s breaking and entering conviction re-
sulting from the January 5, 2003, offense. This means
that it determined there were two to nine victims.
37
At
the time of defendant’s offense, OV 9 instructed the
court to “[c]ount each person who was placed in danger
of injury or loss of life as a victim.”
38
The Court of Appeals concluded that assessing 10
points under OV 9 was proper because of defendant’s
conduct after the breaking and entering had been
completed. Specifically, the Court of Appeals upheld the
OV 9 score because “in leaving the scene of the crime,
defendant was pursued by a police officer for whom he
had failed to stop.
[39]
He ultimately crashed his car,
[40]
argument because the “prosecutor did not raise the waiver issue...until he
filed his brief in this Court,” and People v Oliver, 417 Mich 366, 386 n 17;
338 NW2d 167 (1983), which refused to address the prosecution’s harmless
error argument because the prosecution failed to raise this issue below.
Indeed, the dissent’s view that whether a defendant has waived an issue
“must be” considered by an appellate court, even if the prosecution has not
raised waiver, is subject to question. Notably, the dissent cites only a short
order of this Court in support of this proposition. Smith, 439 Mich at 954.
But in Smith, this Court took issue with the Court of Appeals holding that
failure to file a responsive brief “constitutes a confession of error.” See
People v Smith, 190 Mich App 352, 356; 475 NW2d 875 (1991), vacated in
part 439 Mich 954 (1992). In the present case, the waiver issue was not only
never raised below, it was never raised before us. Finally, to answer the
dissent’s question, see post at 139, defendant had no reason to make the
argument that the prosecution failed to raise the waiver issue. The prosecu-
tion never raised the waiver issue in the first place; it is only this Court in a
dissent that has raised it. Because the prosecution failed to raise the waiver
issue, there is no need for us to address whether defendant’s counsel was
ineffective.
37
MCL 777.39(1)(c).
38
MCL 777.39(2)(a). The statute was amended in 2006 to include
property loss as well. However, this amendment has no effect on this case.
39
The record indicated that defendant was not pursued from the scene
of the crime. The police officer spotted the getaway vehicle on the road
away from the crime site.
40
From the record, it is unclear if defendant was the driver or merely
a passenger.
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and he and the two other occupants ran off.”
41
The
Court decided that defendant’s postoffense conduct
supported the scoring of OV 9 because “two or more
persons were placed in danger of injury during the
criminal transaction.”
42
We conclude that the Court of Appeals erred by
considering the entire criminal transaction and using
defendant’s conduct after the crime was completed as
the basis for scoring OV 9. Offense variables must be
scored giving consideration to the sentencing offense
alone, unless otherwise provided in the particular vari-
able.
43
OV 9 does not provide for consideration of
41
McGraw, unpub op at 2-3; 2006 WL 3334585, at *2.
42
Id. at 3; 2006 WL 3334585, at *2 (emphasis added). The Court of
Appeals’ opinion assumed that defendant was the driver of the vehicle
and that an accomplice to a crime is a “victim” under OV 9. It relied on
People v Cook, 254 Mich App 635; 658 NW2d 184 (2003), and Chesebro for
the proposition that conduct beyond the sentencing offense can be used
to score the offense variables. Chesebro involved the judicial sentencing
guidelines, not the statutory sentencing guidelines that we interpret
today. Furthermore, both of those cases were decided without the benefit
of our decisions in Sargent and Morson. They are overruled insofar as
they stand for the proposition that offense variables can be scored using
conduct beyond the sentencing offense.
43
MCL 769.31 provides a set of definitions for use “in this section and
[MCL 769.34],” which deals with sentencing departures. MCL 769.31(d)
provides:
“Offense characteristics” means the elements of the crime
and the aggravating and mitigating factors relating to the
offense that the legislature determines are appropriate. For
purposes of this subdivision, an offense described in section 33b
of the corrections code of 1953, 1953 PA 232, MCL 791.233b,
that resulted in a conviction and that arose out of the same
transaction as the offense for which the sentencing guidelines
are being scored shall be considered as an aggravating factor.
The dissent argues that MCL 769.31(d) permits a sentencing court to
consider offenses that are not listed in MCL 791.233b or that did not result
in a conviction. This is inconsistent with the well-established legal doctrine
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conduct after completion of the sentencing offense. There-
fore, it must be scored in this case solely on the basis of
defendant’s conduct during the breaking and entering. If
the prosecution had wanted defendant to be punished for
fleeing and eluding, it should not have dismissed the
fleeing and eluding charge. It would be fundamentally
unfair to allow the prosecution to drop the fleeing and
eluding charge while brokering a plea bargain, then res-
urrect it at sentencing in another form.
When we consider only the breaking and entering, it
is apparent that no one was placed in danger of injury or
loss of life. No one was present in the general store or
anywhere near the defendant when he broke into the
building.
44
Even under the current version of OV 9,
expressio unius est exclusio alterius (“the expression of one thing is the
exclusion of another”). Miller v Allstate Ins Co, 481 Mich 601, 611; 751
NW2d 463 (2008).
Th[is] maxim is a rule of construction that is a product of logic
and common sense. Feld v Robert & Charles Beauty Salon, 435
Mich 352, 362; 459 NW2d 279 (1990), quoting 2A Sands, Suther-
land Statutory Construction (4th ed), § 47.24, at 203. This Court
long ago stated that no maxim is more uniformly used to properly
construe statutes. [Hoerstman Gen Contracting, Inc v Hahn, 474
Mich 66, 74-75; 711 NW2d 340 (2006).]
Even assuming that MCL 769.31(d) applies to scoring offense variables
because it states that offenses listed in MCL 791.233b that resulted in a
conviction can be considered, the dissent’s argument fails. This is because
the natural implication of that assumption is that offenses not listed or that
did not result in a conviction cannot be considered. In any event, we need not
decide whether a sentencing court can consider listed offenses resulting in
conviction that arose out of the same transaction as the sentencing offense.
This is because fleeing and eluding is not a listed offense, and defendant was
never convicted of fleeing and eluding. Consequently, contrary to what the
dissent asserts, post at 152, there is no need for us to decide whether
defendant’s fleeing and eluding constituted an “aggravating...factor[]
relating to the offense” under MCL 769.31(d).
44
Cf. Morson, 471 Mich at 262-263, which held that there were two
“victims” under OV 9 when two people were present at the scene of the
sentencing offense and were placed in danger.
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which allows consideration of property loss, the owner
of the general store would be the only victim. Defen-
dant’s flight from the police occurred after the offense
was completed for purposes of scoring the sentencing
guidelines; hence, it cannot be considered in scoring OV
9.
45
Defendant did not place two to nine victims in
danger of injury or loss of life. Therefore, no points
should have been assessed for OV 9.
46
CONCLUSION
Offense variables are properly scored by reference
only to the sentencing offense except when the lan-
guage of a particular offense variable statute specifi-
cally provides otherwise. The language of the statute for
OV 9 does not so provide.
In this case, the sentencing court scored OV 9 by
including defendant’s conduct in fleeing from the police
after his offense of breaking into and entering an unoccu-
pied building was completed. His flight from the police
should not have been used in scoring OV 9. The sentenc-
ing court should have assessed zero points for OV 9
because no one was placed in danger during the breaking
and entering.
Accordingly, we reverse the judgment of the Court of
Appeals and remand the case to the circuit court for
resentencing.
45
There is no need for us to determine precisely when the breaking and
entering offense was completed for purposes of scoring the sentencing
guidelines in this case; it is clear that defendant’s flight from the police
and the subsequent events involved here were far beyond and removed
from the sentencing offense.
46
Defendant also argues that OV 9 was improperly scored at 10 points
because (1) accomplices to the sentencing crime are not “victims” for
purposes of scoring OV 9 and (2) there was insufficient evidence that he
was the driver of the vehicle that fled the police and crashed into the
chain-link fence. We need not address these issues because they pertain
to conduct committed after the breaking and entering was completed and
for which defendant cannot have points assessed under OV 9.
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C
AVANAGH
,M
ARKMAN
, and H
ATHAWAY
, JJ., concurred
with K
ELLY
, C.J.
C
ORRIGAN
,J.(dissenting). The majority holds that the
sentencing court erred by scoring 10 points for offense
variable (OV) 9 (number of victims), MCL 777.39,
because the collision of defendant’s getaway vehicle
into a fence during a police chase occurred after the
definitional elements of his offense, breaking and en-
tering a building with intent to commit larceny, MCL
750.110, were completed. The majority thus reverses
the judgment of the Court of Appeals and remands the
case for resentencing.
I respectfully dissent for three reasons:
(1) Defendant waived his challenge to the scoring of
OV 9 when his attorney stated at sentencing that the
guidelines minimum sentence ranges for his offenses
“appear to be correct.”
(2) Defense counsel was not ineffective in agreeing with
the guidelines calculations because the caselaw in effect at
the time of sentencing supported the OV 9 score.
(3) In any event, the sentencing court did not err in
scoring OV 9. The record supported the court’s finding
that two persons were placed in danger of injury when
defendant’s getaway vehicle crashed into a fence. In
prohibiting consideration of defendant’s escape attempt,
the majority invents a new “elements-only” test for scor-
ing the offense variables. This new rule artificially con-
fines the duration of an offense to its definitional elements
for the purpose of sentencing. This unprecedented ap-
proach to scoring the sentencing guidelines disregards the
well-established res gestae principle that looks to the
entire transaction or uninterrupted chain of events sur-
rounding the commission of an offense.
136 484 M
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120 [July
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ISSENTING
O
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ORRIGAN
,J.
The practical consequences of this new rule should
not be underestimated. The majority today severely
impairs the ability of sentencing courts to assess the
seriousness of an offense when scoring the offense
variables. No longer will a court ever be able to consider
aggravating facts and circumstances that occur after
the elements of the offense have been met.
Consider, for example, a defendant who breaks into a
woman’s home, rapes her, and then, immediately after the
rape, severely beats her and threatens her with a knife he
found in her home. The defendant is convicted of first-
degree criminal sexual conduct. Under today’s decision,
the defendant cannot be assessed any points under OV 1,
MCL 777.31, for his use of the knife, under OV 3, MCL
777.33, for the injuries that the victim suffered during the
beating, or under OV 7, MCL 777.37, for the aggravated
physical abuse of the victim because all these actions,
while part of the same criminal event as the rape, occurred
after the rape was completed.
Or to take another example, suppose a defendant
kills a young woman, dismembers her body, and then,
three days later, sends photographs of the dismembered
body parts to the victim’s parents, which requires them
to undergo psychological counseling as a result of seeing
the photographs. The defendant is convicted of first-
degree murder. Under the majority’s new elements-only
rule, the court cannot assess any points under OV 5,
MCL 777.35, for the parents’ serious psychological
injuries because the elements of first-degree murder
were completed before the defendant dismembered the
body and sent the photographs to the parents. The
majority’s new rule will thus prevent courts from
assessing the true seriousness of an offense when
scoring the guidelines to determine the appropriate
minimum sentence.
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I. WAIVER
Waiver is the intentional relinquishment or abandon-
ment of a known right. People v Carter, 462 Mich 206,
215; 612 NW2d 144 (2000). It differs from forfeiture,
which is the failure to timely assert a right. Id. A waiver
extinguishes the alleged error, thus foreclosing appel-
late review. Id. at 215, 219. In Carter, we held that no
reviewable error existed because defense counsel had
“clearly expressed satisfaction with the trial court’s
decision to refuse the jury’s request [to rehear testi-
mony] and its subsequent instruction.” Id. at 219.
Here, the court asked defense counsel at sentencing if
he had received the sentencing information report indi-
cating a guidelines minimum sentence range of 29 to 114
months. Defense counsel responded, “Yes, Judge, and they
appear to be correct.” Defendant did not take issue with
counsel’s statement. Thus, the record reflects that the
defense expressed satisfaction with the guidelines range,
the calculation of which included the scoring of OV 9 that
defendant now challenges on appeal. Because the issue
has been waived, the alleged error is extinguished, fore-
closing appellate review. Id. at 215, 219.
The majority’s reliance on defendant’s motion for
resentencing as a basis to review the alleged error
reflects a misunderstanding of the distinction between
waiver and forfeiture. Although a motion for resentenc-
ing may preserve a claim and thus avoid forfeiture,
defendant here had already waived the alleged error at
sentencing, thus extinguishing it before the motion for
resentencing was filed. We have never held that an
extinguished error could be revived in the manner
suggested by the majority; indeed, creating a new
“revival of waived errors” rule would significantly erode
the distinction between waiver and forfeiture explained
in Carter.
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The majority also errs by stating that “[b]ecause the
prosecution failed to raise the issue of defendant’s
waiver, we need not consider it.” Ante at 131 n 36. An
appellee is not required to file a cross-appeal raising the
issue of forfeiture or waiver. On the contrary, an appel-
lant’s argument on each issue must include a statement
of the applicable standard or standards of review. MCR
7.212(C)(7); MCR 7.306(A). A defendant’s waiver or
forfeiture of an issue will affect the availability of or the
standard of review for that issue. Thus, preservation,
including forfeiture and waiver, is a threshold question
that inheres in every issue raised on appeal and must be
considered by an appellate court. The majority’s novel
view that an appellee must file a cross-appeal to chal-
lenge the preservation of an issue thus lacks any basis
in our court rules or caselaw, and it would increase
dramatically the number of criminal appeals filed in our
court system.
Moreover, if, under today’s decision, an appellee is
now required to raise the argument that the appellant
waived a substantive issue, then is the appellant re-
quired to raise the argument that the appellee waived
the waiver issue? The majority’s decision essentially
creates a potentially infinite spiral of waivers with no
logical stopping point. What principle guides the major-
ity in choosing to end this spiral at the point where the
appellee but not the appellant is responsible for raising
the issue? It is, after all, by definition the appellant who
generally advances issues on appeal. The majority’s
arbitrary and unexplained assignment of responsibility
to the appellee distorts the usual appellate burden and
is most troubling.
Nor is it clear how the majority can avoid addressing
whether the substantive issue was waived if, as we held
in Carter, a waived error is extinguished. The truly
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illogical nature of the majority’s action should not go
unmentioned: the majority reverses the judgment of sen-
tence on the basis of an “error” while refusing even to
consider whether that “error” was extinguished. How can
the majority reverse because of an error while dodging the
question whether that very error even exists?
Further, the majority cites Mitcham v Detroit, 355
Mich 182, 203; 94 NW2d 388 (1959), for the proposition
that the “[f]ailure to brief an issue on appeal constitutes
abandonment.” Ante at 131 n 36. But in Mitcham, this
Court was referring to an appellant’s failure to brief an
issue in a civil case, not to an appellee’s failure to
discuss an issue in response.
1
Indeed, this Court expressly declined to apply the
Mitcham abandonment rule to an appellee in a criminal
case. In People v Smith, 439 Mich 954 (1992), this Court
vacated the portion of a Court of Appeals judgment that
reversed a defendant’s convictions on the ground that
the prosecution had confessed error by failing to file a
brief. This Court explained:
A party who seeks to raise an issue on appeal but who
fails to brief it may properly be considered to have aban-
doned the issue. Mitcham v Detroit, 355 Mich 182, 203
(1959). However, the failure of an appellee to file a respon-
sive brief may not properly be considered to be a confession
of substantive error.[Id. (emphasis added).]
If, as this Court held in Smith, an appellee’s failure to
file a brief altogether does not constitute a confession of
1
Similarly, the majority’s citation of Gross v Gen Motors Corp, 448 Mich
147, 162 n 8; 528 NW2d 707 (1995), and Dwelley v Tom McDonnell, Inc, 334
Mich 229, 233; 54 NW2d 217 (1952), for the proposition that “a party is
bound to the theory on which the cause was prosecuted or defended in the
court below” is erroneous because neither Gross nor Dwelley suggested that
an appellee’s failure to address an issue correctly in a responsive brief
precludes an appellate court from addressing the issue.
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error, then it follows that an appellee’s filing of a brief
that does not address a particular issue also is not a
confession of error. The majority essentially overrules
Smith by indirection without acknowledging that it is
doing so.
The majority’s new “appellee waiver” rule not only
distorts our caselaw, but may also have very serious
real-world consequences for our state’s criminal justice
system in these difficult economic times. Apparently
because of budget constraints, the prosecution does not
file appellee briefs in 19 percent of the criminal appeals
in the Court of Appeals. Yet the majority now punishes
the people of this state for failing to file a brief by
creating what amounts to an automatic rule of reversal
in one-fifth of the criminal appeals in our state.
Indeed, the dissenting judge in the Court of Appeals
in Smith noted this very concern by explaining that
reversing a conviction on the ground that the prosecu-
tion had not filed a brief “would result in the unneces-
sary reversal of validly obtained convictions” and
“would constitute an even greater waste of this state’s
already taxed law enforcement, prosecutorial, and judi-
cial resources than that occasioned by this Court’s
review of both sides of an issue on appeal.” People v
Smith, 190 Mich App 352, 359; 475 NW2d 857 (1991)
(D
ANHOF
, C.J., dissenting).
An appellate court is obligated to articulate and apply
the governing legal principles correctly regardless of
whether the parties or lower courts have done so. That
is why an appellate court will affirm a lower court’s
judgment if it reached the correct result albeit for the
wrong reason. See, e.g., American Alternative Ins Co,
Inc v York, 470 Mich 28, 33; 679 NW2d 306 (2004) (“The
trial court and the Court of Appeals applied the wrong
legal standards. However, because the Court of Appeals
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reached the correct result, we affirm the Court of
Appeals decision for the reasons stated herein.”).
The majority’s decision subverts this fundamental
duty by declining to apply the waiver principles expli-
cated in Carter. We should not pretend that no waiver
occurred merely because the prosecution’s responsive
brief did not correctly articulate the appropriate man-
ner to resolve the issues raised on appeal.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that his trial counsel rendered
ineffective assistance, but the majority does not analyze
this issue under the two-part test for ineffective assis-
tance of counsel set forth in Strickland v Washington,
466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). To
satisfy the Strickland standard, a defendant bears a
heavy burden to show that counsel made errors so
serious that he was not performing as the counsel
guaranteed by the Sixth Amendment, and the defen-
dant must overcome a strong presumption that coun-
sel’s performance constituted sound trial strategy.
Moreover, the defendant must establish prejudice, i.e., a
reasonable probability that but for counsel’s error, the
result of the proceeding would have been different. See
People v Dendel, 481 Mich 114, 124-125; 748 NW2d 859
(2008); People v Pickens, 446 Mich 298, 302-303; 521
NW2d 797 (1994).
The majority does not explain whether, and if so, why,
it believes defendant has met the heavy burden re-
quired to establish ineffective assistance of counsel. In
any event, counsel’s acquiescence in the scoring of OV 9
was not an error at all, let alone an error so serious as
to deprive defendant of the counsel guaranteed by the
Sixth Amendment. At the time of sentencing, the exist-
ing caselaw provided that a defendant’s conduct during
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the continuum of events surrounding the offense could
be considered in scoring the offense variables. See
People v Cook, 254 Mich App 635, 641; 658 NW2d 184
(2003) (“[W]here the Legislature has not precluded it,
we find that where the crimes involved constitute one
continuum of conduct, as here, it is logical and reason-
able to consider the entirety of defendant’s conduct in
calculating the sentencing guideline range with respect
to each offense.”); People v Chesebro, 206 Mich App 468,
471; 522 NW2d 677 (1994) (stating that when scoring
OV 6 of the former judicial guidelines, which corre-
sponded with current OV 9, victims involved in the
transaction giving rise to the conviction may be consid-
ered).
At the time of sentencing, counsel could not have
known that the then-controlling caselaw would be
swept aside by the majority’s new rule confining the
scoring of offense variables to the definitional elements
of the sentencing offense. The failure to anticipate a
change in the law generally does not constitute ineffec-
tive assistance of counsel. Mullican v United States, 469
F Supp 2d 498, 504 (ED Tenn, 2007), citing Brunson v
Higgins, 708 F2d 1353, 1356 (CA 8, 1983); see also
Lucas v O’Dea, 179 F3d 412, 420 (CA 6, 1999) (“Only in
a rare case will a court find ineffective assistance of
counsel based upon a trial attorney’s failure to make an
objection that would have been overruled under the
then-prevailing law.”) (quotation marks omitted); Kor-
nahrens v Evatt, 66 F3d 1350, 1360 (CA 4, 1995)
(“Based on this clear precedent, we cannot say that,
under the facts of this case, [counsel’s] trial perfor-
mance was constitutionally deficient because he fol-
lowed a long-standing and well-settled rule of South
Carolina criminal law—even when that rule was under
attack in the United States Supreme Court at the time of
trial.”) (emphasis added).
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Thus, counsel’s acquiescence in the scoring of OV 9
does not satisfy the deficient performance prong of
Strickland. The failure to anticipate that this Court
would one day invent an elements-only test for scoring
offense variables in contravention of caselaw in effect at
the time of sentencing does not constitute ineffective
assistance of counsel.
III. WHEN IS THE SENTENCING OFFENSE COMPLETED?
The majority’s central holding is that a defendant’s
conduct occurring after an offense is completed may not
be considered in scoring the offense variables unless the
statutory provision for a particular variable instructs
otherwise. The central flaw in the majority’s analysis is
that it completely begs the question of when an offense
is completed. Indeed, the majority expressly avoids this
question in this case, providing only an amorphous
analysis regarding whether the challenged conduct was
“far beyond and removed” from the underlying offense.
Ante at 135 n 45. Rather than permitting sentencing
courts to analyze the res gestae of a sentencing offense
as we do in other contexts, the majority artificially
limits consideration of the offense to its definitional
elements. Not once does the majority even attempt to
explain why or on what authority it has imposed this
limitation.
The majority’s new elements-only rule has no basis
in Michigan caselaw. In Chesebro, the Court of Appeals
held that only victims involved in the transaction
underlying the sentencing offense could be considered
in scoring OV 6 of the former judicial guidelines:
We think the rule that more accurately applies the
sentencing guidelines is that the offense variables are to be
scored only with respect to the specific criminal transaction
that gives rise to the conviction for which the defendant is
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being sentenced unless the instructions for a variable spe-
cifically and explicitly direct the trial court to do otherwise.
[Chesebro, supra at 471 (emphasis added).]
We analyzed scoring decisions under OV 9 of the
current legislative sentencing guidelines in People v
Morson, 471 Mich 248; 685 NW2d 203 (2004), and
People v Sargent, 481 Mich 346; 750 NW2d 161 (2008).
In Morson, the defendant’s accomplice committed an
armed robbery against Deborah Sevakis. A bystander,
James Bish, was shot while chasing the accomplice after
the elements of armed robbery were completed. This
Court held:
Defendant was assessed ten points by the sentencing
court for two victims: Deborah Sevakis and James Bish.
The Court of Appeals reversed that determination by the
sentencing court, concluding that Sevakis was the only
victim of the armed robbery. We disagree with the Court of
Appeals and therefore reverse its conclusion regarding OV
9.
Pursuant to the plain language of the statute, the
sentencing court is to count “each person who was placed
in danger of injury or loss of life” as a victim. Though
Sevakis was the only person actually robbed, Bish, who was
standing nearby and responded to Sevakis’s call for help,
was also “placed in danger of injury or loss of life” by the
armed robbery of Sevakis. Consequently, the sentencing
court properly counted Bish as a victim and properly scored
defendant under OV 9. [Morson, supra at 261-262.]
Although Justice Y
OUNG
dissented on other issues in
Morson, he agreed with the majority’s analysis of OV 9:
I agree with the majority that the trial court did not err
when it assessed ten points for offense variable (OV) 9. The
language of MCL 777.39(2)(a) clearly states that each
person “placed in danger of injury or loss of life” is to be
counted as a victim. Because a gun was fired at him, James
Bish was placed in danger even if he had not intervened or
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been injured. [Id. at 277 (Y
OUNG
, J., concurring in part and
dissenting in part) (second emphasis added).]
Thus, all persons placed in danger during the course of
a crime are properly counted as victims for the purposes
of OV 9.
Nothing in Morson suggests that only the defini-
tional elements may be used in scoring the offense
variables. On the contrary, conduct that occurred after
the elements were satisfied supported the OV 9 scoring
decision. Thus, Morson supports the conclusion that
every person placed in danger during the criminal event
may count as a victim under OV 9.
2
In Sargent, a criminal sexual conduct case, the sen-
tencing court assessed 10 points for OV 9 on the basis
that there were two victims: the complainant and her
sister, whom the defendant had sexually abused previ-
ously. In a unanimous decision, this Court remanded for
resentencing because the abuse of the complainant’s
sister was not part of the sentencing offense transaction
and only conduct relating to the offense could be
considered when scoring the offense variables.
We explained in Sargent that the offense variables
are generally offense specific because their primary
focus is the nature of the offense. We quoted several
provisions that focused on “the offense” for purposes of
scoring the guidelines. Sargent, supra at 348. We also
noted that MCL 769.31(d) defines “offense characteris-
tics” as “the elements of the crime and the aggravating
and mitigating factors relating to the offense that the
legislature determines are appropriate.” Id. Thus, we
held, only conduct “relating to the offense” may be
2
Then-Justice K
ELLY
and Justice C
AVANAGH
were in the majority in
Morson, yet they make no attempt to explain their sudden change of
opinion here.
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considered when scoring the offense variables. Id.at
349. This conclusion was reinforced by the fact that the
statutes for some offense variables specifically provide
for considering factors unrelated to the offense being
scored. Id. at 349-350. We thus concluded that “only
conduct that relates to the offense being scored may be
considered.” Id. at 350.
We then stated that “when scoring OV 9, only people
placed in danger of injury or loss of life when the
sentencing offense was committed (or, at the most,
during the same criminal transaction) should be con-
sidered.” Id. Noting that the jury did not convict the
defendant of abusing the complainant’s sister and that
the abuse of the sister did not arise out of the same
transaction as the abuse of the complainant, we con-
cluded that zero points should have been assessed for
OV 9. Id. at 351.
And as discussed, Court of Appeals caselaw applying
the legislative guidelines also suggests that the entire
criminal transaction may be considered in scoring the
offense variables. In Cook, the defendant challenged the
use of his conduct in fleeing the police to assess 10
points for OV 19 (interference with the administration
of justice) when calculating his minimum sentence for
assault with intent to do great bodily harm less than
murder. The defendant argued that his flight from the
police did not occur during the assault. The Court of
Appeals found no basis for the defendant’s argument in
the plain language of the statute.
In drafting the sentencing guidelines scoring instruc-
tions, the Legislature could have expressly prohibited sen-
tencing courts from considering facts pertinent to the
calculation of the sentencing guidelines range for one
offense from being also used to calculate the sentence
guidelines range for another offense, but it did not do so.
Moreover, where the Legislature has not precluded it, we
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find that where the crimes involved constitute one con-
tinuum of conduct, as here, it is logical and reasonable to
consider the entirety of defendant’s conduct in calculating
the sentencing guideline range with respect to each offense.
Thus, the trial court did not err in scoring ten points under
OV 19 for defendant’s assault conviction. [Cook, supra at
641 (emphasis added).]
See also People v Gullet, 277 Mich App 214, 218; 744
NW2d 200 (2007) (holding that the sentencing court
had improperly “looked beyond the criminal transac-
tion that supported the conviction when it scored 10
points for OV 9”).
In short, all these cases support the conclusion that a
court may consider the criminal transaction when scor-
ing the offense variables. Until today’s decision, a
sentencing court was never required to confine its
analysis only to the definitional elements of the sen-
tencing offense.
More broadly, the res gestae concept is deeply embed-
ded in our caselaw. For example, in People v Gillis, 474
Mich 105, 109; 712 NW2d 419 (2006), we held that in
felony murder, a defendant’s “perpetration” of the
predicate felony includes acts that occur outside the
definitional elements but during “the unbroken chain
of events surrounding that felony.” “Because defendant
at the time of the collision was attempting to escape
detection after having been identified during the home
invasion, a reasonable juror could conclude that he was
still ‘in the perpetration of’ the home invasion.” Id.
Although the analysis in Gillis hinged in part on the
definition of “perpetration” in the first-degree murder
statute, a term that is not used in the offense variable
provisions, it is nonetheless useful in demonstrating
that an offense may remain ongoing after the comple-
tion of the definitional elements. We noted in Gillis that
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the “commission of the felony itself does not render the
defendant’s criminal plan complete. When a defendant
plans to commit a felonious act, it is ‘a legitimate
assumption that... [the defendant] also planned to
escape from the scene of his crime.’ ” Id. at 115-116
(citation omitted). We noted that “escape is ‘as impor-
tant to the execution of the [felony]’ as the elements of
the crime itself.” Id. at 116 (citation omitted).
In other words, a felon has not “carried out” or “com-
pleted” the felony for felony-murder purposes until the felon
has escaped. A murder committed during the attempt to
escape is committed “in the perpetration of” that felony,
because the felonious transaction has not yet been completed.
Accordingly, “perpetration” includes not only the definitional
elements of the predicate felony, but also includes those acts
that are required to complete the felony—such as those that
occur after the commission of the predicate felony while the
felon is attempting to escape ....
***
“A burglar may be said to be engaged in the commission
of the crime of burglary while making away with the
plunder, and while engaged in securing it. So, a robbery
within the meaning of a rule that a homicide committed in
the perpetration of a robbery is murder in the first degree
is not necessarily concluded by the removal of the goods
from the presence of the owner; and it is not necessary that
the homicide should be committed at the precise time and
place of the robbery. As in the case of burglary, the robber
may be said to be engaged in the commission of the crime
while he is endeavoring to escape and make away with the
goods taken.” [Id. at 116-117, 120, quoting Wharton, Law
of Homicide (3d ed), § 126, p 186) (emphasis added).]
In short, under the res gestae rule, a murder that
occurs during the “unbroken chain of events surround-
ing the predicate felony” is committed in the perpetra-
tion of that felony. Gillis, supra at 121. Time, place,
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causation, and continuity of action determine whether
the murder occurred in perpetration of the predicate
felony. Id. at 127.
Moreover, this Court’s use of the res gestae principle
is not limited to the felony murder context. It is firmly
rooted in our caselaw and used to describe not only the
elements of the offense, but also the body of facts
necessary to prove and support those elements. See,
e.g., People v Kayne, 268 Mich 186; 255 NW 758 (1934);
People v Sholl, 453 Mich 730; 556 NW2d 851 (1996). A
leading treatise concisely explains the res gestae prin-
ciple:
The res gestae includes circumstances, facts and decla-
rations which grow out of the main fact, contemporaneous
with it, and serve to illustrate its character. Normally facts
and circumstances surrounding the commission of a crime
are properly admissible as part of res gestae; however, use
of testimony by the prosecutor to create prejudicial infer-
ences unsupported by evidence is improper.
No inflexible rule has ever been, and probably one can
never be adopted as to what is a part of the res gestae. It
must be determined largely in each case by the peculiar
facts and circumstances of the case, but it may be stated as
a fixed rule that included in the res gestae are the facts
which so illustrate and characterize the principal fact as to
constitute the whole of one transaction. So long as a
transaction continues, so long do acts and deeds emanating
from it became [sic] a part of it, they may be described in a
court of justice. There is no limit of time within which the
res gestae can be arbitrarily confined. [1A Gillespie, Michi-
gan Criminal Law and Procedure, § 18:72, pp 445-446.]
In light of our well-established caselaw addressing
res gestae, I cannot discern why this Court should now
invent a wholly different rule for determining when an
offense is complete for purposes of applying the offense
variables. Even accepting, as we stated in Sargent, that
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the offense variables are offense specific and that the
focus must be on the nature of the sentencing offense,
the majority fails to explain why only the definitional
elements may be considered. If, as we stated in the
felony murder context, a felony is ongoing and not yet
complete while the felonious transaction continues,
then why cannot a sentencing court consider the full
continuum of a defendant’s conduct during that trans-
action for the purpose of scoring the offense variables?
Further, in relation to any offense, the court will have
already heard the entire res gestae of the crime during
the trial or other proceedings and should be allowed to
consider those aggravating and mitigating factors af-
fecting the seriousness of the offense when relevant to
scoring particular variables.
The elements are traditionally used to determine
whether the prosecution has presented sufficient evi-
dence to support a charge or a conviction, not to define
the res gestae of the offense. Indeed, the majority’s new
rule collapses the duration of a criminal offense so that
it begins and ends at precisely the same instant. A
prosecutor cannot charge a crime until the last element
has been completed. At the most, a prosecutor could
charge only for an attempt if all the elements have not
been completed. Yet under the majority’s opinion, the
crime also stops immediately upon the completion of the
elements. That is, at the precise moment the crime can
be charged, the majority would stop the clock for the
purpose of scoring the sentencing guidelines. Why?
As we explained in Sargent, MCL 769.31(d) defines
“offense characteristics” as “the elements of the crime
and the aggravating and mitigating factors relating to
the offense that the legislature determines are appropri-
ate.” (Emphasis added.) In contravention of the statute
and our analysis in Sargent, the majority now limits
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consideration to the elements and requires courts to
ignore any other facts and circumstances “relating to
the offense” that occur during the res gestae of the
crime.
Not once does the majority even attempt to explain
why or how it has reached the remarkable conclusion
that a defendant’s flight from the scene of the crime is
not an “aggravating... factor[] relating to the of-
fense....”Instead, the majority simply gives no effect
to the portion of the statute that does not support its
new standard, focusing only on the reference to “the
elements of the crime” while disregarding the phrase
“and the aggravating and mitigating factors relating to
the offense that the legislature determines are appro-
priate.” MCL 769.31(d).
The majority’s suggestion that it can ignore defen-
dant’s escape attempt because defendant was not con-
victed of fleeing and eluding reflects a mistaken under-
standing of MCL 769.31(d). Again, that statute defines
“offense characteristics” as
the elements of the crime and the aggravating and mitigat-
ing factors relating to the offense that the legislature
determines are appropriate. For purposes of this subdivi-
sion, an offense described in... MCL 791.233b, that re-
sulted in a conviction and that arose out of the same
transaction as the offense for which the sentencing guide-
lines are being scored shall be considered as an aggravating
factor.
This provision requires that certain offenses that result
in a conviction must be considered as aggravating
factors. But contrary to the majority’s suggestion, it
does not say that other contemporaneous offenses that
do not result in a conviction or that are not listed in
MCL 791.233b cannot be considered as aggravating
factors.
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Next, it is true, as we stated in Sargent, that some of
the offense variable provisions expressly require consid-
eration of facts that are not offense specific. But most of
the examples cited contemplate consideration of events
falling not only outside the definitional elements of the
sentencing offense, but outside the criminal transaction
itself. Thus, the statutory provisions for those offense
variables would not be nullified by considering the
criminal transaction in scoring all offense variables.
And although OV 14 (leader in a multiple offender
situation) does expressly refer to the “entire criminal
transaction,” MCL 777.44(2)(a), this language merely
emphasizes the broader focus when the defendant is a
leader of other offenders. In other words, the reference
to the “entire criminal transaction” in this provision
merely reflects that OV 14 uniquely pertains to multiple
offender situations.
Moreover, the majority’s elements-only test violates
the very purpose of the sentencing guidelines: to pro-
mote uniformity and consistency in sentencing.
3
To that
end, we have held that departure from the guidelines
recommended minimum sentence range is meant to be
the exception, not the rule.
4
Despite this well-
established standard and without acknowledging the
inconsistency created, the majority states that the trial
3
See People v Smith, 482 Mich 292, 311-312 & n 46; 754 NW2d 284
(2008); former MCL 769.33(1)(e)(iv), as added by 1994 PA 45 (providing
that one of the Sentencing Commission’s tasks was to develop sentencing
guidelines that “[r]educe sentencing disparities based on factors other
than offense characteristics and offender characteristics and ensure that
offenders with similar offense and offender characteristics receive sub-
stantially similar sentences”); People v Babcock, 469 Mich 247, 263; 666
NW2d 231 (2003) (“The premise of our system of criminal justice is that,
everything else being equal, the more egregious the offense, and the more
recidivist the criminal, the greater the punishment.”).
4
Smith, supra at 299, citing Babcock, supra at 257-258, citing People v
Fields, 448 Mich 58, 62, 67-68; 528 NW2d 176 (1995).
2009] P
EOPLE V
M
C
G
RAW
153
D
ISSENTING
O
PINION BY
C
ORRIGAN
,J.
court may consider factors within the criminal transac-
tion but outside the elements when departing from the
guidelines range. This reasoning is simply unsupported
by the law of this state.
Indeed, those justices in the majority in this case who
were also in the majority in People v Smith, 482 Mich
292; 754 NW2d 284 (2008), have failed to explain their
inconsistent positions. Contrary to the analysis in
Smith, the majority today suggests that sentencing
courts should depart freely from the guidelines recom-
mended range by considering factors outside the ele-
ments of the offense that may not be considered when
scoring the offense variables. This invitation to depart
more readily from the guidelines will likely cause a
dramatic increase in the number of sentencing appeals,
which our appellate courts will have to review under the
rigid framework demanded by Smith.
In this case, I would hold that defendant was prop-
erly assessed 10 points for OV 9. Defendant argues that
even if his escape attempt were to be considered, his
accomplices could not be considered victims for the
purpose of scoring OV 9. But the version of MCL
777.39(2)(a) applicable in this case stated: “Count each
person who was placed in danger of injury or loss of life
as a victim.” (Emphasis added.) Defendant’s accom-
plices occupied the car that crashed into a fence during
a police chase, obviously putting them in danger of
physical injury. “Each person” is not a difficult phrase
to understand, and it does not exclude accomplices. A
person’s guilt or innocence does not affect whether that
person was placed in danger.
Defendant further contends that no evidence existed
that he was driving the getaway vehicle when it crashed
into the fence. The police officer, however, saw a person
with light hair inside the fleeing vehicle, and defendant
154 484 M
ICH
120 [July
D
ISSENTING
O
PINION BY
C
ORRIGAN
,J.
had red hair, which could be viewed as light.
5
In any
event, defendant at the very least aided and abetted the
escape attempt, and he cannot now avoid responsibility
for participating in the flight from the police that led to
the crash into a fence.
IV. CONCLUSION
Accordingly, I would affirm the judgment of the
Court of Appeals. Defendant waived his claim that OV 9
was incorrectly scored when his attorney conceded at
sentencing that the guidelines minimum sentence
ranges for his offenses “appear to be correct.” Counsel
was not ineffective in making this concession, given
that the caselaw in effect at the time of sentencing
supported the OV 9 score. Finally, the majority’s new
elements-only rule for scoring offense variables has no
basis in our caselaw. The Court of Appeals properly
considered the entire res gestae of the sentencing
offense in concluding that the evidence supported the
scoring decision.
W
EAVER
and Y
OUNG
, JJ., concurred with C
ORRIGAN
,J.
5
The presentence investigation report states that the officer “could
observe a male subject with light hair, who then put a black hood over his
head. There were no other occupants visible in the car.” (Emphasis added.)
Contrary to the implication of the majority, it is a reasonable inference
that the only person the officer saw in the vehicle was the driver of that
vehicle.
2009] P
EOPLE V
M
C
G
RAW
155
D
ISSENTING
O
PINION BY
C
ORRIGAN
,J.
BUSH v SHABAHANG
Docket Nos. 136617, 136653, and 136983. Argued April 8, 2009 (Calendar
No. 5). Decided July 29, 2009.
Gary L. Bush, as guardian of Gary E. Bush, a protected person, brought
a medical malpractice action in the K ent Circuit Court against
Behrooz-Bruce Shabahang, M.D., and others, seeking damages for
injuries allegedly suffered by Gary E. Bush as a result of surgery to
repair an aortic aneurysm. The court, George S. Buth, J., granted
summary disposition in favor of defendants George T. Sugiyama,
M.D ., M. Ashraf Mansour, M.D., and Vascular Associates, P.C . The
court also granted summary disposition in favor of defendant Spec-
trum Health Butterworth Campus, to the extent that its alleged
liability was based on the actions of Sugiyama and Mansour and with
regard to the claims of negligence on the part of Spectrum Health’s
physician’s assistants. Summary disposition was denied with regard
to the other defendants. The court also determined that the com-
plaint was not prematurely filed. The Court of Appeals denied
applications for leave to appeal by Shabahang, John C. Heiser, M.D.,
West Michigan Cardiovascular Surgeons, and Spectrum Health in
unpublished orders entered August 4, 2006 (Docket Nos. 270433,
270437, and 270897). The Supreme Court, in lieu of granting leave to
appeal, remanded the matter to the Court of Appeals for consider-
ation as on leave granted. 477 Mich 934 (2006); 477 Mich 935 (2006).
The cases were consolidated. The Court of Appeals, S
MOLENSKI
and
B
ECKERING
,JJ.(F
ITZGERALD
,P.J., concurring in part and dissenting in
part), held that the plaintiff’s notice of intent to file his action met the
minimum requirements of MCL 600.2912b for statements of the
standard of care and proximate cause with regard to Heiser and
Shabahang and gave adequate notice that West Michigan Cardiovas-
cular Surgeons and Spectrum Health could be vicariously liable for
the actions of Heiser and Shabahang. Because the notice of intent did
not give adequate notice with respect to the plaintiff’s claims alleging
that West Michigan Cardiovascular Surgeons and Spectrum Health
were directly liable for negligent hiring or failing to train other staff
members, the cases were remanded for the entry of an order of partial
summary disposition without prejudice in favor of West Michigan
Cardiovascular Surgeons and Spectrum Health. The Court of Ap-
peals also held that a plaintiff need not challenge the sufficiency of a
156 484 M
ICH
156 [July
defendant’s response to the plaintiff’s notice of intent before the
plaintiff may properly commence the action after the expiration of
the 154-day period specified in MCL 600.2912b(8) in reliance on the
plaintiff’s belief that the defendant’s response did not meet the
requirements of MCL 600.2912b(7), although the trial court may
dismiss the suit if it later determines that the defendant’s response
was adequate. 278 Mich App 703 (2008). The Supreme Court consoli-
dated the cases and ordered and heard oral argument on whether to
grant the applications for leave to appeal or take other peremptory
action. 482 Mich 1014 (2008). The Supreme Court subsequently
granted the defendants’ applications for leave to appeal. 482 Mich
1105 (2008).
In an opinion by Justice H
ATHAWAY
, joined by Chief Justice
K
ELLY
and Justices C
AVANAGH
and W
EAVER
, the Supreme Court
held:
Pursuant to the 2004 amendment of MCL 600.5856(c), a timely
filed notice of intent tolls the statute of limitations even if the
notice of intent contains defects. Defects in notices of intent may
be amended or disregarded under MCL 600.2301 if the substantial
rights of the parties are not affected, provided that the cure is in
the furtherance of justice and has terms that are just. A cure is in
the furtherance of justice when a party has made a good-faith
attempt to comply with the content requirements of MCL
600.2912b. A plaintiff may take advantage of the 154-day waiting
period provided in MCL 600.2912b(8) if a defendant fails to make
a good-faith attempt to reply to the plaintiff’s notice of intent in
compliance with the statutory content requirements.
1. Former MCL 600.5856(d), the predecessor provision of MCL
600.5856(c), stated that the statute of limitations was tolled after
the date notice was given in compliance with MCL 600.2912b. The
Legislature amended that provision in 2004 to state that the
statute of limitations is tolled at the time notice is given in
compliance not with § 2912b, but with the applicable notice period
under § 2912b. A comparison of the preamendment provision and
the postamendment provision indicates that the focus of the
operative language has been limited to compliance with the
applicable notice period, rather than compliance with § 2912b in
its entirety. This Court must assume that an express legislative
change denotes either a change in the meaning of the statute itself
or a clarification of the original legislative intent of the statute. In
this case, the clear language of § 2912b and § 5856(c) as amended
indicates that if a plaintiff files a timely notice of intent before
commencing a medical malpractice action, the statute of limita-
tions is tolled despite the presence of defects in the notice of intent.
2009] B
USH V
S
HABAHANG
157
Although Roberts v Mecosta Co Gen Hosp, 466 Mich 57 (2002),
reached the opposite conclusion, it did so on the basis of the
preamendment language.
2. MCL 600.2912b provides that a plaintiff may not commence an
action for medical malpractice without filing a timely notice of intent;
however, the statute is silent regarding the consequences of filing a
defective notice of intent, and it makes no reference to a mandatory
dismissal penalty in the event of a defect. The fact that the Legisla-
ture considered and rejected a mandatory dismissal clause for the
proposed provision codifying notices of intent indicates that the
Legislature did not intend this penalty to be imposed. Further,
mandatory dismissal with prejudice would be inconsistent with the
stated purpose of § 2912b, which is to provide a mechanism for
promoting settlement without the need for formal litigation, reducing
the cost of medical malpractice litigation, and providing compensa-
tion for meritorious medical malpractice claims that would otherwise
be precluded from recovery because of litigation costs. Considering
§ 2912b in the context of the broader medical malpractice statutory
scheme, which is a balanced scheme that imposes equivalent require-
ments on plaintiffs and defendants, it would be inconsistent to
assume that the Legislature intended to impose the harsh penalty of
dismissal with prejudice on plaintiffs, while the only other penalty
provision in § 2912b is a relatively minor shortening of a defendant’s
waiting period.
3. MCL 600.2301 gives courts the power to cure certain defects
within processes, pleadings, or proceedings for the furtherance of
justice and on terms that are just, at any time before judgment in
the matter is rendered. Because service of a notice of intent is
clearly part of a medical malpractice process or proceeding, this
provision may be employed to cure defects in a notice of intent.
This mechanism will not affect the substantial rights of defen-
dants in medical malpractice cases, because those parties are
sophisticated health professionals with extensive medical back-
ground and training and, as such, will be able to understand the
nature of the claims against them even if the notice of intent is
defective. The requirement that the cure be in the furtherance of
justice is satisfied when a party makes a good-faith attempt to
comply with the content requirements of § 2912b. In this case, the
plaintiff provided a 13-page notice of intent that made a good-faith
attempt to address each of the subdivisions enumerated in
§ 2912b(4), and the Court of Appeals correctly held that the vast
majority of the notice was in compliance with § 2912b(4).
However, because Shabahang’s one-page response to the plain-
tiff’s notice of intent was nothing more than a blanket denial of
158 484 M
ICH
156 [July
any wrongdoing, it does not constitute a good-faith attempt to
comply and is not subject to § 2301. Accordingly, the plaintiff was
not required to wait the full 182-day period before filing suit.
Affirmed in part, reversed in part, and remanded for further
proceedings.
Justice M
ARKMAN
, joined by Justices C
ORRIGAN
and Y
OUNG
,
dissenting, would hold that a plaintiff’s notice of intent must comply
with the requirements of § 2912b(4) in order to toll the statute of
limitations pursuant to § 5856(c). This gives full effect to all of
§ 5856(c) and interprets it in harmony with § 2912b, contrary to the
majority’s interpretation, which relies on only a portion of § 5856(c),
ignores the relationship between § 5856(c) and § 2912b, and uses the
amendment of § 5856(c) to alter the clear language of § 2912b. He
would further hold that, pursuant to § 2912b(8), a plaintiff may
commence an action 154 days after giving notice if the defendant’s
response does not comply with the requirements of § 2912b(7). This
interpretation relies on the clear language of § 2912b and, contrary to
the majority’s interpretation, does not create a “good-faith” require-
ment on the part of the defendant that lacks any basis in the statute.
In reaching its interpretations of § 2912b and § 5856(c), the majority
ignores precedent and statutory language, abandons traditional ap-
proaches to statutory interpretation, concocts new rules and stan-
dards that have no grounding in the law, and generally confuses and
obscures the procedures that must be followed as a condition to filing
a medical malpractice lawsuit.
1. A
CTIONS —
M
EDICAL
M
ALPRACTICE —
N
OTICE OF
I
NTENT TO
F
ILE A
C
LAIM —
D
EFECTIVE
N
OTICE OF
I
NTENT —
L
IMITATION OF
A
CTIONS
.
A timely but defective notice of intent to commence a medical
malpractice action tolls the statute of limitations (MCL
600.5856[c]).
2. A
CTIONS —
M
EDICAL
M
ALPRACTICE —
N
OTICE OF
I
NTENT TO
F
ILE A
C
LAIM —
D
EFECTIVE
N
OTICE OF
I
NTENT
.
A court is not required to dismiss with prejudice a claim for medical
malpractice if the notice of intent to commence the action was
defective.
3. A
CTIONS —
M
EDICAL
M
ALPRACTICE —
N
OTICE OF
I
NTENT TO
F
ILE A
C
LAIM —
D
EFECTIVE
N
OTICE OF
I
NTENT —
C
URE FOR
D
EFECTIVE
N
OTICE OF
I
NTENT
.
The statutory provision that gives courts the power to cure defects
within processes, pleadings, or proceedings for the furtherance of
justice may be employed to cure defects in a notice of intent if a
2009] B
USH V
S
HABAHANG
159
party has made a good-faith attempt to comply with the content
requirements of the statutory notice provision (MCL 600.2301).
Evans Pletkovic, P.C. (by Sandra L. Ganos), for the
plaintiffs.
Hackney, Grover, Hoover & Bean, PLC (by Richard K.
Grover, Jr., Susan M. Ramage, and Jeffrey K. Wesorick),
for Behrooz-Bruce Shabahang, M.D.
Rhoades McKee (by Mark E. Fatum and Douglas P.
Vanden Berge) for Spectrum Health Butterworth Cam-
pus.
Aardema, Whitelaw & Sears-Ewald, PLLC (by Brian
W. Whitelaw and Timothy P. Buchalski), for John
Heiser, M.D., and West Michigan Cardiovascular Sur-
geons.
Amici Curiae:
Mark Granzotto, P.C. (by Mark Granzotto), for the
Michigan Association for Justice.
Foster, Swift, Collins & Smith, P.C. (by Richard C.
Kraus), for the University of Michigan.
H
ATHAWAY
, J. At issue before this Court is the proper
interpretation of MCL 600.5856(c), as amended by 2004
PA 87, effective April 22, 2004. We have been asked to
consider whether a defect in a timely mailed notice of
intent (NOI), provided to a medical malpractice defen-
dant pursuant to MCL 600.2912b, precludes the tolling
of the statute of limitations on a plaintiff’s medical
malpractice claim. We also consider whether, and under
what circumstances, a plaintiff may take advantage of
the 154-day statutory waiting period provided under
MCL 600.2912b(8).
160 484 M
ICH
156 [July
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We conclude that the 2004 amendments of MCL
600.5856 have significantly clarified the proper role of
an NOI provided pursuant to MCL 600.2912b. While
the former statute, MCL 600.5856(d), has been inter-
preted to preclude tolling when defects are found in an
NOI, the current statute, § 5856(c), makes clear that
the question whether tolling applies is determined by
the timeliness of the NOI. Thus, if an NOI is timely, the
statute of limitations is tolled despite defects contained
therein. Moreover, in light of this significant clarifica-
tion of § 5856, we hold that the purpose of the NOI
statute is better served by allowing for defects in NOIs
to be addressed in light of MCL 600.2301, which allows
for amendment and disregard of “any error or defect”
where the substantial rights of the parties are not
affected and the cure is in the furtherance of justice. We
hold that the mandates of § 2301 are met when a party
makes a good-faith attempt to comply with the content
requirements of § 2912b. Finally, we hold that a plain-
tiff may take advantage of the 154-day waiting period
provided in § 2912b(8) where a defendant fails to make
a good-faith attempt to reply to the plaintiff’s NOI in
compliance with the statutory content requirements.
We therefore affirm the Court of Appeals in part,
reverse in part, and remand to the trial court for
further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
The underlying facts and procedural history of this
case were well set forth by the Court of Appeals. The
Court of Appeals summarized:
On August 7, 2003, Gary E. Bush (Bush), who was 33 at
the time, had surgery to repair an aortic aneurysm at Spec-
trum Health’s Butterworth Campus. [Behrooz-Bruce] Shaba-
hang and [John] Heiser, who are surgeons employed by [West
2009] B
USH V
S
HABAHANG
161
O
PINION OF THE
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Michigan] Cardiovascular [Surgeons], performed the surgery.
Plaintiff [Gary L. Bush], Bush’s guardian, claims that when
Shabahang cut open Bush’s chest, he lacerated the aneurysm,
which made it necessary for Heiser to cannulate Bush’s
femoral artery and femoral vein so that Bush could be placed
on a heart-bypass machine before the surgery could proceed.
Defendants George T. Sugiyama, M.D ., and M. Ashraf Man-
sour, M.D., who are vascular surgeons with defendant Vascu-
lar Associates, P.C., repaired Bush’s femoral artery and femo-
ral vein, respectively. According to plaintiff , the injuries Bush
suffered during the surgery and during his recovery rendered
him unable to lead an independent life.
On August 5, 2005, which was just days before the
expiration of the applicable period of limitations, plaintiff
served a notice of intent to file a medical-malpractice
complaint against Shabahang, Heiser, Sugiyama, Mansour,
[West Michigan] Cardiovascular, Vascular Associates, and
Spectrum Health. Sugiyama, Mansour, Vascular Associ-
ates, and Shabahang responded to plaintiff’s notice as
required by MCL 600.2912b(7). On January 27, 2006,
which was 175 days after plaintiff served notice on defen-
dants, plaintiff filed his complaint against all defendants.
Shortly thereafter, Sugiyama, Mansour, and Vascular As-
sociates moved for summary disposition under MCR
2.116(C)(7), (8), and (10). They argued that dismissal was
appropriate on two grounds: (1) plaintiff failed to file a notice
that complied with the requirements of MCL 600.2912b, and
(2) plaintiff failed to wait the required 182 days before filing
his complaint. Shabahang, Heiser, and [West Michigan] Car-
diovascular joined the motion. Spectrum Health later filed its
own motion for summary disposition based solely on the
alleged deficiency of the notice.
In response to these motions, plaintiff argued that the
notice met the minimum statutory requirements. Plaintiff
responded to the allegations that the complaint was pre-
maturely filed by arguing that the responses to the notice
were deficient. Because defendants’ responses to the notice
were deficient, plaintiff contended that he could properly
file his complaint after 154 days from the date of service of
the notice. Hence, plaintiff concluded, his complaint was
not prematurely filed.
162 484 M
ICH
156 [July
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The trial court determined that the notice was insuffi-
cient with regard to Sugiyama, Mansour, and Vascular
Associates. On the basis of that conclusion, the trial court
granted summary disposition in favor of Sugiyama, Man-
sour, and Vascular Associates. The trial court also granted
summary disposition in favor of Spectrum Health, but only
to the extent that its alleged liability was based on the
actions of Sugiyama and Mansour. The trial court also
granted summary disposition in favor of Spectrum Health
with regard to the claims of negligence on the part of
Spectrum Health’s physician assistants because plaintiff
failed to file a conforming affidavit of merit. However, “[a]s
to the other doctors and defendants...theCourt’s of the
opinion that the [notice] is clearly sufficient, so those
motions are denied.” The trial court also determined that
plaintiff’s complaint was not prematurely filed.
[
1
]
Defendants appealed the trial court’s orders. The
Court of Appeals consolidated defendants’ applications
for leave to appeal. On May 1, 2008, the Court of
Appeals issued a published opinion affirming in part,
reversing in part, and remanding to the trial court for
further proceedings.
2
The Court of Appeals held that,
when read as a whole, the NOI was sufficient to comply
with the requirements of MCL 600.2912b(4), except
with regard to the claims of direct liability for training
and supervision against West Michigan Cardiovascular.
The Court also concluded that certain claims for vicari-
ous liability against Spectrum Health were inad-
equately pled.
3
Accordingly, the Court of Appeals re-
versed the trial court’s denial of summary disposition
on the deficiently pled direct liability claims and re-
1
Bush v Shabahang, 278 Mich App 703, 706-708; 753 NW2d 271
(2008).
2
Id. at 726-727.
3
The Court of Appeals held that the claims for vicarious liability for the
physician’s assistants and the nursing staff were inadequately pled, but
the claims against Heiser and Shabahang were sufficient.
2009] B
USH V
S
HABAHANG
163
O
PINION OF THE
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manded to the trial court for an order granting the
motion for summary disposition and dismissing the
claims without prejudice. The Court of Appeals af-
firmed the trial court’s ruling that plaintiff’s complaint
was timely filed, holding that plaintiff could avail him-
self of the shortened 154-day waiting period because the
defendants’ response to the NOI was deficient. Defen-
dant Spectrum Health’s motion for reconsideration of
the opinion was denied.
Defendants filed three separate applications for leave
to appeal in this Court. This Court consolidated the
appeals and granted oral argument on the applications.
4
After oral argument on the applications, this Court
granted leave to appeal.
5
II. STANDARD OF REVIEW
The issues presented are issues of statutory interpre-
tation. Statutory interpretation is a question of law,
which this Court reviews de novo.
6
This Court also
reviews de novo a trial court’s decision regarding a
motion for summary disposition.
7
III. ANALYSIS
A. MCL 600.5856(c) AND TOLLING
The first issue this Court is asked to address is
whether the defects identified in plaintiff’s NOI act to
bar tolling of the statute of limitations under MCL
600.5856(c), as amended by 2004 PA 87, effective April
4
Bush v Shabahang, 482 Mich 1014 (2008).
5
Bush v Shabahang, 482 Mich 1105 (2008).
6
In re Investigation of March 1999 Riots in East Lansing, 463 Mich
378, 383; 617 NW2d 310 (2000).
7
Herald Co v Bay City, 463 Mich 111, 117; 614 NW2d 873 (2000).
164 484 M
ICH
156 [July
O
PINION OF THE
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22, 2004. Our analysis necessarily begins with a review
of the language of § 5856 before and after the 2004
amendments.
The relevant language of § 5856(d), the predecessor
to § 5856(c),
8
provided that tolling is operative if the
“notice is given in compliance with section 2912b.”
(Emphasis added.) The relevant language of § 5856(c)
currently provides that tolling is operative “[a]t the
time notice is given in compliance with the applicable
notice period under section 2912b ....” (Emphasis
added.) The question arises whether the amendment
mandates compliance with the entirety of § 2912b, such
that a defective NOI does not get the benefit of tolling,
or whether the new language focuses on compliance
with only the applicable notice period in § 2912b, such
that a defective NOI tolls the statute of limitations as
long as it is compliant with the notice period.
This question was seemingly answered in Roberts v
Mecosta Co Gen Hosp (Roberts I)
9
and Boodt v Borgess
Med Ctr,
10
both of which held that a defect in an NOI
precludes tolling of the statute of limitations during the
182-day waiting period. Roberts I opined that MCL
600.5856(d) and MCL 600.2912b were inextricably tied.
The Court held that “the statute of limitations cannot
be tolled under MCL 600.5856(d) unless notice is given
in compliance with all the provisions of MCL
600.2912b.”
11
However, this holding was foundationally premised
on the pre-amendment language. The Court explained:
8
The former § 5856(d) was renumbered by the amendment and now
appears as § 5856(c).
9
Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 642 NW2d 663 (2002).
10
Boodt v Borgess Med Ctr, 481 Mich 558, 561; 751 NW2d 44 (2008).
11
Roberts I, 466 Mich at 59.
2009] B
USH V
S
HABAHANG
165
O
PINION OF THE
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Section 5856(d) clearly provides that notice must be
compliant with § 2912b, not just § 2912b(2) as plaintiff
contrarily contends. Had the Legislature intended only the
delivery provisions of § 2912b to be applicable, we presume
that the Legislature would have expressly limited compli-
ance only to § 2912b(2). However, the Legislature did not
do so. Rather, it referred to all of § 2912b.
Since the statute is clear and unambiguous, this Court is
required to enforce § 5856(d) as written. As a result, the
tolling of the statute of limitations is available to a plaintiff
only if all the requirements included in § 2912b are met.
[
12
]
Significantly, Roberts I interpreted the former MCL
600.5856(d), as the amendment was not enacted until
after Roberts I was decided. Boodt, while decided in
2008, made no reference to the 2004 amendment.
Rather, it relied on the Roberts I interpretation of the
former § 5856(d), presumably because the complaint in
Boodt was filed prior to the 2004 amendment. Neither
Roberts I nor Boodt addressed the question at issue
here, namely, whether the current language of § 5856(c)
mandates that defects in an NOI act as a bar to tolling
of the statute of limitations. Since Roberts I and Boodt
relied on language of a statute that is no longer in
existence, examining the correct interpretation of
§ 5856(c) and its interrelationship with § 2912b is an
issue of first impression.
The question this Court addresses is one of statutory
construction. Assuming that the Legislature has acted
within its constitutional authority, the purpose of statu-
tory construction is to discern and give effect to the
intent of the Legislature.
13
In determining the intent of
the Legislature, this Court must first look to the lan-
12
Id.at64.
13
Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119
(1999).
166 484 M
ICH
156 [July
O
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guage of the statute.
14
The Court must, first and fore-
most, interpret the language of a statute in a manner
that is consistent with the intent of the Legislature.
15
“ ‘As far as possible, effect should be given to every
phrase, clause, and word in the statute. The statutory
language must be read and understood in its grammati-
cal context, unless it is clear that something different
was intended.’ ”
16
Moreover, when considering the cor-
rect interpretation, the statute must be read as a
whole.
17
Individual words and phrases, while important,
should be read in the context of the entire legislative
scheme.
18
While defining particular words in statutes,
we must consider both the plain meaning of the critical
word or phrase and its placement and purpose in the
statutory scheme.
19
A statute must be read in conjunc-
tion with other relevant statutes to ensure that the
legislative intent is correctly ascertained.
20
The statute
must be interpreted in a manner that ensures that it
works in harmony with the entire statutory scheme.
21
Moreover, courts must pay particular attention to statu-
tory amendments, because a change in statutory lan-
guage is presumed to reflect either a legislative change
in the meaning of the statute itself or a desire to clarify
the correct interpretation of the original statute.
22
14
Id.
15
Id.
16
Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d 570, 579 (2008),
quoting Sun Valley, 460 Mich at 237.
17
Sun Valley, 460 Mich at 237.
18
Herman, 481 Mich at 366.
19
Id., quoting Bailey v United States, 516 US 137, 145; 116 S Ct 501;
133 L Ed 2d 472 (1995).
20
Wayne Co v Auditor General, 250 Mich 227, 233; 229 NW 911 (1930).
21
Id. at 234.
22
See Lawrence Baking Co v Unemployment Compensation Comm, 308
Mich 198, 205; 13 NW2d 260 (1944).
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Finally, an analysis of a statute’s legislative history is
an important tool in ascertaining legislative intent.
23
To determine the intent of MCL 600.5856(c), we first
look at its plain language. The pre-amendment version
of § 5856 stated:
The statutes of limitations or repose are tolled:
(a) At the time the complaint is filed and a copy of the
summons and complaint are served on the defendant.
(b) At the time jurisdiction over the defendant is other-
wise acquired.
(c) At the time the complaint is filed and a copy of the
summons and complaint in good faith are placed in the
hands of an officer for immediate service, but in this case
the statute is not tolled longer than 90 days after the
copy of the summons and complaint is received by the
officer.
(d) If, during the applicable notice period under section
2912b, a claim would be barred by the statute of limitations
or repose, for not longer than a number of days equal to the
number of days in the applicable notice period after the
date notice is given in compliance with section 2912b.
[Emphasis added.]
MCL 600.5856, as amended by the Legislature in 2004,
states:
The statutes of limitations or repose are tolled in any of
the following circumstances:
(a) At the time the complaint is filed, if a copy of the
summons and complaint are served on the defendant
within the time set forth in the supreme court rules.
(b) At the time jurisdiction over the defendant is other-
wise acquired.
23
See In re MCI Telecom Complaint, 460 Mich 396, 415; 596 NW2d 164
(1999).
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(c) At the time notice is given in compliance with the
applicable notice period under section 2912b, if during that
period a claim would be barred by the statute of limitations
or repose; but in this case, the statute is tolled not longer
than the number of days equal to the number of days
remaining in the applicable notice period after the date
notice is given. [Emphasis added.]
In comparing the pre- and post-amendment lan-
guage, it is clear that the focus of the operative lan-
guage has been clarified. Roberts I opined that the focus
of § 5856(d) was on compliance with § 2912b in its
entirety. In contrast, the focus of the new § 5856(c) is
unquestionably limited to compliance with the “appli-
cable notice period.”
As Roberts I pointed out, if the Legislature had
intended to limit the applicability of § 2912b, it would
have expressly limited compliance in the statute. The
2004 amendment of § 5856 does precisely that. It limits
compliance to the notice period under § 2912b. Thus,
pursuant to the clear language of § 2912b and the new
§ 5856(c), if a plaintiff complies with the applicable
notice period before commencing a medical malpractice
action, the statute of limitations is tolled.
Defendants ask us to disregard the change to the
language of § 5856 and assume that the change was
merely inadvertent. They urge us to interpret the
amended statute in the same manner that Roberts I and
Boodt interpreted the pre-amendment statute. We cannot
do so. This Court cannot assume that language chosen by
the Legislature is inadvertent.
24
To the contrary, this
Court must assume that an express legislative change
denotes either a change in the meaning of the statute
itself or a clarification of the original legislative intent
24
Lawrence Baking, 308 Mich at 205.
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of the statute.
25
We cannot assume that the change
means nothing at all. The language of the new
§ 5856(c), “compliance with the applicable notice period
under section 2912b,” clearly and unequivocally sets
forth that a plaintiff’s NOI must comply only with the
applicable notice period.
In sum, neither the Roberts I nor the Boodt analysis
applies in the matter before us because both analyses were
based on a former version of § 5856 that is no longer in
existence. The Legislature, in exercising its authority, has
changed the language of the statute and we must abide by
that action. Thus, we hold that, pursuant to the clear
language of § 2912b and § 5856(c), if a plaintiff files a
timely NOI before commencing a medical malpractice
action, the statute of limitations is tolled despite the
presence of defects in the NOI.
B. CONSEQUENCE OF A DEFECTIVE NOI
In light of the fact that a defective NOI does not bar
tolling of the statute of limitations under § 5856(c), we
must now consider what a court must do when pre-
sented with a defective NOI.
26
25
Id. See also Ettinger v City of Lansing, 215 Mich App 451; 546 NW2d
652 (1996), wherein Justice M
ARKMAN
, then sitting at the Court of
Appeals and joined by then-Judge C
ORRIGAN
, opined:
We note that plaintiffs correctly state the general proposition
that changes in statutory language presumably reflect a change in
meaning. Wortelboer v Benzie Co, 212 Mich App 208, 217; 537
NW2d 603 (1995). However, changes in statutory language may
reflect an attempt to clarify the meaning of a provision rather than
change it. Id.; see also Evans v Hebert, 203 Mich App 392, 403; 513
NW2d 164 (1994).
26
The Boodt Court opined that because no tolling was afforded in the
presence of a defect pursuant to § 5856(d), the plaintiff’s action was not
commenced under § 2912b(1). Boodt, 481 Mich at 562-563. Our analysis
today explains that the Legislature has made it clear that a defective NOI
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We must again begin our analysis by examining the
language of the statute itself. MCL 600.2912b states in
relevant part:
(1) Except as otherwise provided in this section, a
person shall not commence an action alleging medical
malpractice against a health professional or health facility
unless the person has given the health professional or
health facility written notice under this section not less
than 182 days before the action is commenced.
(2) The notice of intent to file a claim required under
subsection (1) shall be mailed to the last known profes-
sional business address or residential address of the health
professional or health facility who is the subject of the
claim. Proof of the mailing constitutes prima facie evidence
of compliance with this section. If no last known profes-
sional business or residential address can reasonably be
ascertained, notice may be mailed to the health facility
where the care that is the basis for the claim was rendered.
***
(4) The notice given to a health professional or health
facility under this section shall contain a statement of at
least all of the following:
(a) The factual basis for the claim.
(b) The applicable standard of practice or care alleged by
the claimant.
(c) The manner in which it is claimed that the applicable
standard of practice or care was breached by the health
professional or health facility.
(d) The alleged action that should have been taken to
achieve compliance with the alleged standard of practice or
care.
does not preclude tolling of the statute of limitations for cases bought
under § 5856(c). As a result, whether a medical malpractice action is
commenced for purposes of § 5856(a) does not depend on the presence or
absence of defects within the NOI.
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(e) The manner in which it is alleged the breach of the
standard of practice or care was the proximate cause of the
injury claimed in the notice.
(f) The names of all health professionals and health
facilities the claimant is notifying under this section in
relation to the claim.
***
(7) Within 154 days after receipt of notice under this
section, the health professional or health facility against
whom the claim is made shall furnish to the claimant or his
or her authorized representative a written response that
contains a statement of each of the following:
(a) The factual basis for the defense to the claim.
(b) The standard of practice or care that the health
professional or health facility claims to be applicable to the
action and that the health professional or health facility
complied with that standard.
(c) The manner in which it is claimed by the health
professional or health facility that there was compliance
with the applicable standard of practice or care.
(d) The manner in which the health professional or
health facility contends that the alleged negligence of the
health professional or health facility was not the proximate
cause of the claimant’s alleged injury or alleged damage.
(8) If the claimant does not receive the written response
required under subsection (7) within the required 154-day
time period, the claimant may commence an action alleging
medical malpractice upon the expiration of the 154-day
period.
The plain language of § 2912b(1) mandates that a
plaintiff shall not commence an action for medical
malpractice without filing a timely NOI. Notably, how-
ever, the statute is silent regarding the consequences of
filing a defective NOI. The statute makes no reference
whatsoever to a mandatory dismissal penalty in the
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event of a defect. Thus, our inquiry begins with whether
a mandatory dismissal with prejudice under § 2912b
was the intent of the Legislature. In the absence of an
express directive within the statute itself, the legislative
history of § 2912b, the statute’s purpose, its placement
within the broader statutory scheme, and a review of
other relevant statutes are instructive guides.
A review of the legislative history reveals that the
Legislature did not intend for a defect in an NOI to be
grounds for dismissal with prejudice based on
§ 2912b. The clearest indication for this conclusion
was the Legislature’s complete rejection of a manda-
tory dismissal clause. The statute creating NOIs was
originally introduced as Senate Bill 270 on January
28, 1993.
27
NOIs were codified in what was then pro-
posed § 2912f. Section 2912d, a proposed companion to
§ 2912f, contained a mandatory dismissal penalty for
failure to comply with § 2912f. The bill as introduced
provided:
Except as otherwise provided in this subsection, in an
action alleging medical malpractice, the court shall dismiss
a claim not included in the notice required under section
2912f. [Emphasis added.]
Significantly, this penalty provision did not have
sufficient votes to pass. Mandatory dismissal was not
the will of the Legislature. This Court has previously
recognized that legislative history may be used to
determine legislative intent. This Court previously held
that “[w]here the Legislature has considered certain
language and rejected it in favor of other language, the
resulting statutory language should not be held to
27
This bill was introduced in the Senate by Senators DeGrow, Van
Regenmorter, Gast, Cisky, Welborn, Wartner, Emmons, Schwarz, Ehlers,
Geake, Arthurhultz, DiNello, Koivisto, Bouchard, Dunaskiss, Pridnia,
and McManus.
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authorize what the Legislature explicitly rejected.”
28
We
can draw no conclusion from the omission of the dis-
missal penalty in § 2912b other than it was not the
intent of the Legislature to incorporate a mandatory
dismissal penalty into § 2912b.
The stated purpose of § 2912b was to provide a
mechanism for “promoting settlement without the need
for formal litigation, reducing the cost of medical mal-
practice litigation, and providing compensation for
meritorious medical malpractice claims that would oth-
erwise be precluded from recovery because of litigation
costs....”
29
To hold that § 2912b in and of itself
mandates dismissal with prejudice would complicate,
prolong, and significantly increase the expense of liti-
28
In re MCI Telecom Complaint, 460 Mich at 415. Similarly, Univ Med
Affiliates, PC v Wayne Co Executive, 142 Mich App 135, 140; 369 NW2d
277 (1985), held that the legislative history of a statute may be considered
and, where it can be shown that certain language was affirmatively
rejected, the court should not give the statute a construction that the
Legislature plainly refused to give. As the Court explained in In re MCI
Telecom Complaint:
[W]e find the meaning of [MCL 484.2312a], standing alone,
to be unambiguous on its face. The statutory language clearly
requires that, should interLATA prohibitions be removed,
Ameritech must provide intraLATA toll dialing parity. There is,
however, nothing on the face of this statute, or within the
language enacted by the Legislature, that would hold the
reverse to be true. Indeed, where the Legislature specifically
considered language authorizing such a linkage, and rejected it,
the Court of Appeals clearly erred in holding that the statute
inextricably linked intraLATA and interLATA toll dialing par-
ity. [In re MCI Telecom Complaint, 460 Mich at 415-416.]
See also Nation v WDE Electric Co, 454 Mich 489, 492-493, 495; 563
NW2d 233 (1997); Miller v State Farm Mut Automobile Ins Co, 410 Mich
538, 566; 302 NW2d 537 (1981); and People v Adamowski, 340 Mich 422,
429; 65 NW2d 753 (1954).
29
Senate Legislative Analysis, SB 270, August 11, 1993; House Legis-
lative Analysis, HB 4403 to 4406, March 22, 1993.
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gation. Dismissal with prejudice would be inconsistent
with these stated purposes.
Further, in determining legislative intent, we must
look to § 2912b’s context within the broader medical
malpractice statutory scheme. To do so, we examine the
statute as a whole. Our review of the medical malprac-
tice legislation indicates that it was designed as a
balanced scheme, imposing equivalent requirements on
both plaintiffs and defendants. Both are required to
participate in the NOI process and file comparable
documents.
30
Both are required to file comparable affi-
davits to accompany complaints and answers.
31
Both are
required to meet the same expert witness qualifica-
tions.
32
In light of these comparable and balanced
requirements, the penalties should likewise be compa-
rable. It is significant that the only penalty provision
included in § 2912b is very minor: a shortening of the
defendant’s waiting period by 28 days.
33
In light of the
minor penalty for a defendant, it would be inconsistent
with the balanced approach in the legislative scheme to
assume that the Legislature intended to impose on
plaintiffs the harshest penalty possible: dismissal with
prejudice.
34
30
See MCL 600.2912b.
31
See MCL 600.2912d and MCL 600.2912e.
32
MCL 600.2169.
33
MCL 600.2912b(8).
34
Given the Legislature’s clear rejection of dismissal as a penalty in
§ 2912b, and its amendment of § 5856(d), we question whether the
Legislature ever intended § 5856(d) to preclude tolling of the statute of
limitations in the presence of defects in an NOI. The timing of the
amendment, the language chosen, and the legislative history support the
conclusion that the change was intended to be a clarification of the
original intent of the statute rather than it being representative of a
change from the original intent. Accordingly, we question whether
Roberts I and Boodt were correctly decided, as they failed to consider the
entire legislative scheme and the legislative history involved. However,
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In determining legislative intent, we should also
consider other relevant statutory provisions. To that
end, we consider the Revised Judicature Act (RJA) to
see if other appropriate remedies exist that are consis-
tent with the intended purpose of § 2912b. We have long
recognized that the RJA does provide a mechanism to
cure certain defects within pleadings in MCL 600.2301.
We note that the language of § 2301 goes beyond the
limited concept of amendment of “pleadings” and al-
lows for curing of certain defects in any “process,
pleading or proceeding.”
MCL 600.2301 states:
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.
Service of an NOI is clearly part of a medical malprac-
tice “process” or “proceeding” in Michigan.
35
Section
2912b mandates that “an action alleging medical mal-
practice” in Michigan “shall not commence...unless
the person has given the health professional or health
facility written notice....”
36
Since an NOI must be
given before a medical malpractice claim can be filed,
the service of an NOI is a part of a medical malpractice
because the NOI and filing in this case occurred after 2004, this issue is
not before us, and we will refrain from deciding this issue in the present
case.
35
See Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679,
691; 684 NW2d 711 (2004) (Roberts II) (“[W]e acknowledge that the
notice of intent is provided at the earliest stage of a medical malpractice
proceeding.”) (emphasis added); Boodt, 481 Mich at 561.
36
MCL 600.2912b(1).
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“proceeding.” As a result, § 2301 applies to the NOI
“process.”
37
As Justice C
AVANAGH
opined in his dissent
in Boodt, this Court has for several decades applied
MCL 600.2301 or its predecessor (which contained
nearly identical language) to allow amendment of docu-
ments that, although not aptly characterized as plead-
ings, might well fall under the broad category of a
“process” or “proceeding.”
38
Accordingly, we hold that
§ 2301 may be employed to cure defects in an NOI.
We recognize that § 2301 allows for amendment of
errors or defects, whether the defect is in form or in
substance, but only when the amendment would be “for
the furtherance of justice.” Additionally, § 2301 man-
dates that courts disregard errors or defects when those
errors or defects do not affect the substantial rights of
the parties. Thus, the applicability of § 2301 rests on a
two-pronged test: first, whether a substantial right of a
party is implicated and, second, whether a cure is in the
furtherance of justice. If both of these prongs are
satisfied, a cure will be allowed “on such terms as are
37
We note that the majority in Boodt engaged in some limited discus-
sion of § 2301 in a footnote. Boodt, supra at 567 n 4. However, as we
previously indicated, the Boodt majority did not reach this issue in light
of its holding that, because the NOI was deficient, no action was pending,
and § 2301 only applies to pending actions. Again, as this analysis is
based on the former § 5856(d), it is no longer applicable.
38
Boodt, 481 Mich at 567-572 (C
AVANAGH
, J., dissenting); see also
Tudryck v Mutch, 320 Mich 99, 107; 30 NW2d 518 (1948) (applying the
predecessor statute of MCL 600.2301 to allow amendment of a settlement
agreement); Fildew v Stockard, 256 Mich 494, 498-499; 239 NW 868
(1932) (applying the predecessor statute of MCL 600.2301 to allow
amendment of an affidavit for a writ of garnishment that was required to
be filed before commencement of that action); Hopkins & Son v Green,93
Mich 394, 395-396; 53 NW 537 (1892) (applying the predecessor statute
of MCL 600.2301 to allow amendment of a bond); Bole v Sands &
Maxwell Lumber Co, 77 Mich 239, 241-242; 43 NW 873 (1889) (holding
that a summons could be amended pursuant to the “process, pleading or
proceeding” language of the predecessor statute of MCL 600.2301).
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just.”
39
Given that NOIs are served at such an early
stage in the proceedings, so-called “defects” are to be
expected. The statute contemplates that medical
records may not have been turned over before the NOI
is mailed to the defendant.
40
Defendants who receive
these notices are sophisticated health professionals
with extensive medical background and training. In-
deed, these same defendants are allowed to act as their
own reviewing experts. A defendant who has enough
medical expertise to opine in his or her own defense
certainly has the ability to understand the nature of
claims being asserted against him or her even in the
presence of defects in the NOI. Accordingly, we conclude
that no substantial right of a health care provider is
implicated. Further, we hold that the second prong of
the test, which requires that the cure be in the further-
ance of justice, is satisfied when a party makes a
good-faith attempt to comply with the content require-
ments of § 2912b. Thus, only when a plaintiff has not
made a good-faith attempt to comply with § 2912b(4)
should a trial court consider dismissal of an action
without prejudice.
We must now turn to the instant NOI to determine
the nature of the defect and whether § 2301 may be
invoked. The NOI is 13 pages long. Plaintiff made a
good-faith attempt to address each of the subsections
enumerated in § 2912b(4). The Court of Appeals held,
and we agree, that the vast majority of plaintiff’s NOI
was in compliance with § 2912b(4).
41
The Court of
Appeals held that the NOI was defective with respect to
39
MCL 600.2301.
40
MCL 600.2912b(5) provides for the exchange of medical records.
41
The court found no defects with regard to the claims against the
individually named doctors, the vicarious liability claims against West
Michigan Cardiovascular Surgeons, and the vicarious liability claims
against Spectrum Health for Heiser and Shabahang.
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the claims made against defendant West Michigan Car-
diovascular for direct liability for training and supervi-
sion, and also with respect to the claims for direct
liability asserted against Spectrum Health for its nurses
and physician’s assistants. In analyzing these defects,
the Court of Appeals stated:
Plaintiff’s notice does not adequately address the
standard of care applicable to [West Michigan] Cardio-
vascular under a direct theory of liability for failure to
properly train or hire. The notice merely provides that
[West Michigan] Cardiovascular should have hired com-
petent staff members and properly trained them. But the
notice identifies no relevant standard for determining
competency or properly training staff persons. Nor can
the standard be gleaned from the other sections of the
notice: plaintiff failed to state how [West Michigan]
Cardiovascular’s hiring and training practices violated
that standard, failed to state which hiring practices or
training methods it should have employed, and failed to
state how those improper practices proximately caused
Bush’s injuries. For this reason, to the extent that
plaintiff’s claims rest on these theories, the trial court
should have granted summary disposition in favor of
[West Michigan] Cardiovascular.
***
Although plaintiff’s notice alleges errors on the part
of Spectrum Health’s nursing staff and physician assis-
tants, the notice does not purport to state a separate
standard of care for the nurses and physician assistants.
This problem is compounded by the fact that the notice
does not delineate the specific actions taken by the
nursing staff or physician assistants that purportedly
breached the standard of care. R ather, plaintiff’s notice
generally asserts that the staff should have performed
monitoring, charting, assessing, and reporting and en-
gaged in advocacy for the patient and otherwise chal-
lenged the actions of physicians. Finally, the notice does
not state the manner in which the identified breaches
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proximately caused Bush’s injuries. Thus, even when the
notice is read as a whole, it does not adequately address
the standard of care applicable to Spectrum Health’s
staff other than Heiser and Shabahang. For that reason,
we agree with Spectrum Health that the trial court erred
when it concluded that plaintiff’s notice met the mini-
mum requirements of MCL 600.2912b(4)(b) with regard
to Spectrum Health’s nursing staff and physician assis-
tants. Likewise, to the extent that plaintiff purported to
give notice that Spectrum Health could be held directly
liable for Bush’s injuries on the basis of the theories that
it negligently hired or failed to train its staff, for the
same reasons we explained with regard to [West Michi-
gan] Cardiovascular, we conclude that the notice did not
meet the requirements of MCL 600.2912b.
[
42
]
We agree with the Court of Appeals that these
omissions do constitute defects in the NOI. However, we
disagree with the Court of Appeals regarding the appro-
priate remedy. We are not persuaded that the defects
described by the Court of Appeals warrant dismissal of
a claim. These types of defects fall squarely within the
ambit of § 2301 and should be disregarded or cured by
amendment. It would not be in the furtherance of
justice to dismiss a claim where the plaintiff has made a
good-faith attempt to comply with the content require-
ment of § 2912b. A dismissal would only be warranted if
the party fails to make a good-faith attempt to comply
with the content requirements.
43
Accordingly, we hold
that the alleged defects can be cured pursuant to § 2301
because the substantial rights of the parties are not
affected, and “disregard” or “amendment” of the defect
is in the furtherance of justice when a party has made a
42
Bush, 278 Mich App at 711, 716-717 (citations omitted).
43
See defendant’s response to plaintiff’s NOI, at pp. 182-183 of this
opinion, which provides an example of a failure to demonstrate a
good-faith attempt to comply with the content requirements.
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good-faith attempt to comply with the content provi-
sions of § 2912b.
44
C. MCL 600.2912b(7) AND DEFECTIVE RESPONSES TO AN NOI
Next, given that the Court of Appeals held that
Shabahang’s response to plaintiff’s NOI was defec-
tive because it did not meet the requirements of MCL
600.2912b(7), the question arises whether plaintiff
was required to wait the full 182-day period before
filing his medical malpractice action, or whether he
could avail himself of the shortened 154-day period.
Our analysis again begins by examining the text of
MCL 600.2912b(7).
45
The statute is clear that a defen-
dant must provide the plaintiff with a written response
within 154 days of receipt of the NOI. This provision is
mandatory. The response must include a statement of
the factual basis for the defense, the standard of care
that the health professional claims applies, the manner
in which it is claimed that the health professional
complied with the standard of care, and the manner in
which the health professional contends that the alleged
negligence was not the proximate cause of the plaintiff’s
injuries. If the plaintiff does not receive the written
response required under MCL 600.2912b(7) within the
154-day waiting period, the plaintiff may file suit after
the 154-day waiting period has expired.
46
44
MCL 600.2301 provides that any amendment shall be made “on such
terms as are just.” We note that in light of this provision, justice would be
served by having any amendment relate back to the time that the original
NOI was mailed, in accord with the treatment afforded to pleadings when
amended under MCR 2.118(D).
45
See part III(B) of this opinion for the full text.
46
MCL 600.2912b(8) provides: “If the claimant does not receive the
written response required under subsection (7) within the required
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According to the Court of Appeals, Shabahang’s re-
sponse was defective and did not comply with the statute.
Despite this response, Shabahang argues that plaintiff
was still required to wait the full 182-day waiting period
before filing suit because plaintiff received a response to
the NOI. Plaintiff, on the other hand, argues that because
the notice did not meet the requirements of § 2912b(7), it
was proper to commence his suit upon the expiration of
the 154-day period, as allowed under MCL 600.2912b(8).
Shabahang counters that plaintiff could not unilaterally
determine that the response was inadequate, contending
that a judge must adjudicate the issue before plaintiff may
file the complaint early.
Once again we turn to the standards set forth in
§ 2301 for guidance. Section 2301 similarly allows for
“amendment” or “disregard” of defects in responses to
NOIs, as long as the cure is in the furtherance of justice
and does not affect the substantial rights of the parties.
Significantly, defendants must make a good-faith at-
tempt to comply with the content requirements of the
statute to avail themselves of § 2301.
Shabahang’s one-page response to the NOI was utterly
lacking in a good-faith attempt to comply. The entire
substantive portion of Shabahang’s response stated:
1. FACTUAL BASIS FOR DEFENSE TO CLAIM
The medical records involved in this case, together
with deposition testimony, will form the primary defense
to this case. Briefly, Dr. Shabahang contends that he
154-day time period, the claimant may commence an action alleging
medical malpractice upon the expiration of the 154-day period.”
We note that our holding today does not conflict with Omelenchuk v
City of Warren, 461 Mich 567, 575; 609 NW2d 177 (2000) (holding that
the statute of limitations remains tolled for the full 182 days even if the
plaintiff takes advantage of the shortened waiting period).
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properly evaluated, assessed and treated Gary Bush. The
actions of Dr. Shabahang were well within the standard
of care.
2. STANDARD OF CARE AND COMPLIANCE
The standard of care required Dr. Shabahang to do
things demonstrated in the medical records, which may be
further augmented by deposition testimony. At all times, he
acted within the standards of care in his care and treat-
ment of Gary Bush.
3. MANNER OF COMPLIANCE
See § 2 above. The manner in which Dr. Shabahang
complied with the applicable standard of care is outlined in
the medical records, and will be further augmented by
sworn deposition testimony.
4. PROXIMATE CAUSE
It is the position of Dr. Shabahang that his actions did
not within a reasonable degree of medical probability
contribute in any way to the complications alleged by Gary
Bush. Additionally, it is the position of Dr. Shabahang that
the current medical condition of Gary Bush was not in any
way caused or contributed by the activities of Dr. Shabah-
ang.
Shabahang was required to make a general state-
ment of the factors contained in § 2912b(7). He failed to
do so. Shabahang’s response is nothing more than a
blanket denial of any wrongdoing. Indeed, Shabahang
himself does not defend his efforts or the content of the
response in his arguments to this Court. Rather, defen-
dant takes the position that the content of the response
is irrelevant. We disagree. The purpose of the NOI
waiting period is to provide a cost-saving method to
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resolve meritorious claims. If a defendant does not wish
to use that process, the plaintiff is entitled to accelerate
the filing of the complaint. A defendant can either
advise the plaintiff of the decision to waive
47
or the
defendant may do nothing at all, either of which trig-
gers the shortened waiting period. However, we cannot
allow a defendant to so flagrantly disregard the process
and fail to make a good-faith attempt to comply, yet still
take advantage of the full waiting period. As Shabahang
did not make a good-faith attempt to comply with
§ 2912b(7), he cannot avail himself of either § 2301 or
the full 182-day waiting period.
This result is fully consistent with the statutory NOI
scheme. It makes little sense to continue a settlement
period when one party has indicated that he or she has
no interest in settlement. When a defendant has made
little or no attempt to comply with the statute, we will
not afford the same benefits as if he or she had made an
attempt to comply.
Finally, defendant asserts that plaintiff does not have
the right to unilaterally make a determination on the
validity of a response. We agree with the Court of
Appeals that a plaintiff who unilaterally makes such a
decision does so at his or her own peril. If a court
ultimately determines that the response is not defec-
tive, plaintiff’s complaint may be deemed untimely.
However, given the limited time period involved, it
would be virtually impossible for a Court to adjudicate
this issue on a timely basis. By the time the parties
could schedule a hearing and brief the issue, the short-
ened time period afforded by § 2912b would be lost.
Therefore, we agree with the Court of Appeals that a
plaintiff may choose to make his own determination
47
See MCL 600.2912b(9).
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regarding the sufficiency of a response, but he does so at
the risk of having a court later determine that the
defendant’s response was indeed adequate. We conclude
that § 2912b(7) allows a plaintiff to file a complaint
early if the defendant’s response to the NOI is defective.
IV. CONCLUSION
We hold that pursuant to MCL 600.5856(c), as
amended by 2004 PA 87, effective April 22, 2004, when
an NOI is timely, the statute of limitations is tolled
despite defects contained therein. Moreover, in light of
the legislative clarification of § 5856(c), we hold that the
purpose of the NOI statute is better served by allowing
for defects in NOIs to be addressed in light of § 2301,
which permits “amendment” or “disregard” of “any
error or defect” where the substantial rights of the
parties are not affected, as long as the cure is in the
furtherance of justice and on terms that are just. A cure
is in the furtherance of justice when a party makes a
good-faith attempt to comply with the content require-
ments of § 2912b. Finally, we hold that a plaintiff may
take advantage of the 154-day waiting period provided
in § 2912b(8) where a defendant fails to make a good-
faith attempt to reply to the plaintiff’s NOI in compli-
ance with the statutory content requirements.
We therefore affirm the Court of Appeals in part,
reverse in part, and remand to the trial court for
further proceedings consistent with this opinion.
K
ELLY
, C.J., and C
AVANAGH
, and W
EAVER
, JJ., con-
curred with H
ATHAWAY
,J.
M
ARKMAN
,J.(dissenting). Because I disagree with the
majority’s interpretation of the notice-tolling provision
in MCL 600.5856, as well as with its interpretation of
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MCL 600.2912b regarding a defendant’s permissible
response to a plaintiff’s notice of intent to sue, I
respectfully dissent.
I. FACTS AND HISTORY
Plaintiff underwent surgery on August 7, 2003, for an
aortic aneurysm and a heart valve replacement. Plaintiff
alleges that during the surgery defendant Behrooz-Bruce
Shabahang, M.D., “cut into the aortic aneurysm causing a
laceration” and defendant John Charles Heiser, M.D .,
“improperly clamped [a] vessel causing vascular damage.”
Defendants George T. Sugiyama, M.D ., and M. Ashraf
Mansour, M.D., “were called in to repair the vein and
artery.” Plaintiff alleges that the injuries caused by
the surgery have caused him to become “unable to
live without supervision and assistance.”
On August 5, 2005, two days before the two-year
period of limitations expired, plaintiff served defen-
dants, including Spectrum Health Butterworth Cam-
pus (the facility where the surgery took place), West
Michigan Cardiovascular Surgeons (the entity to
which Shabahang and Heiser belonged), and Vascular
Associates, P.C. (the entity to which Sugiyama and
Mansour belonged), with notices of intent to file suit.
Shabahang responded to plaintiff’s notice, as did
Sugiyama, Mansour, and Vascular Associates, but
Heiser, Spectrum Health, and West Michigan Cardio-
vascular did not. On January 27, 2006, 175 days after
serving notice, plaintiff filed his complaint against all
defendants.
The trial court granted summary disposition in favor
of Sugiyama, Mansour, and Vascular Associates because
plaintiff’s notice did not include a standard of care for
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Sugiyama and Mansour.
1
For that same reason, the trial
court granted partial summary disposition in favor of
Spectrum Health for its alleged liability based on Sugi-
yama’s and Mansour’s alleged malpractice.
2
The trial
court, however, did not grant summary disposition in
favor of Shabahang, who argued that the complaint was
filed prematurely.
The Court of Appeals initially denied leave to appeal
but, after remand by this Court, 477 Mich 934 (2006);
477 Mich 935 (2006), issued an opinion affirming in
most respects the trial court’s decision regarding the
sufficiency of plaintiff’s notice. Bush v Shabahang, 278
Mich App 703; 753 NW2d 271 (2008). The Court of
Appeals, however, held that the notice was defective for
the direct liability claims against Spectrum Health and
West Michigan Cardiovascular Surgeons, which were
based on their alleged failure to properly hire and train
staff. With respect to those claims, the Court remanded
for dismissal without prejudice, concluding that the
statute of limitations had been tolled by the defective
notice and that the “applicable limitations periods
remain tolled until entry of the grants of summary
disposition.” Id. at 727. With respect to the timing of
plaintiff’s complaint, the court held that plaintiff’s
complaint was timely filed, although Judge F
ITZGERALD
would have held that plaintiff was required to wait 182
days after giving notice before commencing the suit. Id.
at 727-729 (F
ITZGERALD
,P.J., concurring in part and
dissenting in part).
1
Plaintiff did not appeal this decision and thus it is not before the
Court.
2
The court also granted summary disposition in favor of Spectrum
Health on the negligence claims based on Spectrum Health’s physician’s
assistants because plaintiff failed to file a conforming affidavit of merit
with those claims.
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This Court consolidated these cases and initially
heard oral argument on defendants’ applications for
leave to appeal regarding: (1) whether the Court of
Appeals’ remand for dismissal without prejudice was
inconsistent with Boodt v Borgess Med Ctr, 481 Mich
558; 751 NW2d 44 (2008); and (2) whether plaintiff’s
complaint was filed prematurely. 482 Mich 1014 (2008).
During oral arguments, a question arose regarding the
2004 amendment of the tolling statute, MCL 600.5856.
Accordingly, we granted leave to hear full oral argument
as follows:
(1) whether the plaintiff’s defective notice of intent as to
defendants West Michigan Cardiovascular Surgeons and
Spectrum Health tolled the period of limitations pursuant
to MCL 600.5856(c), as amended by 2004 PA 87, effective
April 22, 2004; and (2) whether defendant Shabahang’s
defective response to the plaintiff’s notice of intent, MCL
600.2912b(7), was presumed valid such that the plaintiff
was required to wait the full 182-day period before filing
his medical malpractice action. [482 Mich 1105 (2008).]
II. STANDARD OF REVIEW
This Court reviews questions regarding summary
disposition “de novo to determine if the moving party is
entitled to judgment as a matter of law.” Maiden v
Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). We
also review questions of statutory interpretation de
novo. Miller v Mercy Mem Hosp, 466 Mich 196, 201; 644
NW2d 730 (2002).
III. TOLLING STATUTE
A. ANALYSIS
A claim for medical malpractice must be brought
within two years from the time the alleged malpractice
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takes place.
3
Solowy v Oakwood Hosp Corp, 454 Mich
214, 219; 561 NW2d 843 (1997). A claimant, however,
can toll this limitations period by complying with
MCL 600.5856.
4
Specifically, § 5856(c) allows tolling
during the interlude to commencing a medical malprac-
tice action required by § 2912b if the statute of limita-
tions would otherwise expire during that period.
5
Ab-
sent tolling, however, an action commenced after two
years is “barred.” MCL 600.5838a(2). Accordingly, for
plaintiff’s claims to survive summary disposition, the
statute of limitations must have been tolled, because
plaintiff filed his complaint more than two years and
five months from the date of the alleged malpractice.
MCL 600.5856(c) provides:
The statutes of limitations or repose are tolled in any of
the following circumstances:
***
(c) At the time notice is given in compliance with the
applicable notice period under section 2912b, if during that
period a claim would be barred by the statute of limitations
or repose; but in this case, the statute is tolled not longer
than the number of days equal to the number of days
3
The statute of limitations for medical malpractice claims provides
that a person “shall not bring or maintain an action to recover damages
for injuries to persons or property unless... the action is commenced
within [2 years].” MCL 600.5805(1) and (6).
4
Tolling extends the time during which a claim can be brought by
temporarily suspending the statute of limitations.
5
MCL 600.2912b(1) states:
Except as otherwise provided in this section, a person shall
not commence an action alleging medical malpractice against a
health professional or health facility unless the person has
given the health professional or health facility written notice
under this section not less than 182 days before the action is
commenced.
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remaining in the applicable notice period after the date
notice is given.
[
6
]
Previously this provision read:
The statutes of limitations or repose are tolled:
***
(d) If, during the applicable notice period under section
2912b, a claim would be barred by the statute of limitations
or repose, for not longer than a number of days equal to the
number of days in the applicable notice period after the
date notice is given in compliance with section 2912b.
[MCL 600.5856(d).]
[
7
]
In Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 64-66;
642 NW2d 663 (2002) (Roberts I), this Court held that
in order to toll pursuant to the pre-amendment provi-
sion, plaintiff’s notice must comply with MCL
600.2912b(4).
8
The instant question is whether under
the post-amendment provision, the notice must also
comply with § 2912b(4). The majority holds that under
6
Generally, this is known as the notice-tolling provision.
7
2004 PA 87 amended MCL 600.5856. The amendment deleted previ-
ous subsection (c).
8
MCL 600.2912b(4) states:
The notice given to a health professional or health facility
under this section shall contain a statement of at least all of the
following:
(a) The factual basis for the claim.
(b) The applicable standard of practice or care alleged by the
claimant.
(c) The manner in which it is claimed that the applicable
standard of practice or care was breached by the health profes-
sional or health facility.
(d) The alleged action that should have been taken to achieve
compliance with the alleged standard of practice or care.
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the amended notice-tolling provision a defective notice,
i.e., one that does not satisfy § 2912b(4), will nonethe-
less toll the statute of limitations. I do not agree and
believe instead that the notice-tolling provision still
requires a notice that is compliant with § 2912b(4) in
order to effectively toll.
The Court’s obligation in interpreting a statute is to
“give effect to the Legislature’s intent as expressed in
the words of the statute.” Pohutski v City of Allen Park,
465 Mich 675, 683; 641 NW2d 219 (2002). “[L]anguage
does not stand alone, and thus it cannot be read in a
vacuum. Instead, ‘it exists and must be read in context
with the entire act....’”G C Timmis & Co v Guard-
ian Alarm Co, 468 Mich 416, 421; 662 NW2d 710 (2003).
“Statutes that address the same subject or share a
common purpose are in pari materia and must be read
together as a whole” to fully reveal the Legislature’s
intent. People v Harper, 479 Mich 599, 621; 739 NW2d
523 (2007); see also Turnbull v Prentiss Lumber Co,55
Mich 387, 394; 21 NW 375 (1884). The notice-tolling
provision and the notice statute, § 2912b, are in pari
materia because the notice-tolling provision was en-
acted with § 2912b, see 1993 PA 78, and directly refer-
ences § 2912b. Accordingly, the notice-tolling provision
must be interpreted in light of the overall statutory
scheme within which it was placed.
The notice-tolling provision tolls “[a]t the time notice
is given in compliance with the applicable notice period
under section 2912b.” The applicable notice period
(e) The manner in which it is alleged the breach of the standard
of practice or care was the proximate cause of the injury claimed in
the notice.
(f) The names of all health professionals and health facilities
the claimant is notifying under this section in relation to the claim.
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under § 2912b is 182 days from the filing of the notice
during which a complaint may not be filed, MCL
600.2912b(1); Omelenchuk v City of Warren, 461 Mich
567, 573; 609 NW2d 177 (2000), and only begins once
“the person has given the health professional or health
facility written notice under this section,” MCL
600.2912b(1). Notice is only considered “written notice
under this section” if it complies with § 2912b(4), which
states that “notice...under this section shall contain a
statement” regarding substantive aspects of the alleged
malpractice. See Boodt, 481 Mich at 562-563 (“[A]
plaintiff cannot commence an action before he or she
files a notice of intent that contains all the information
required under § 2912b(4).”). For the notice to be given
in compliance with the “applicable notice period,” that
period necessarily must exist. Because giving notice as
required by § 2912b(4) constitutes the only manner by
which the applicable notice period is brought into
existence, it seems logical to conclude that the Legisla-
ture intended the notice-tolling provision to be trig-
gered only by the plaintiff filing such notice.
Furthermore, allowing the notice-tolling provision to
be triggered by a defective notice makes little sense
considering that the provision only applies “if during
[the applicable notice period] a claim would be barred
by the statute of limitations.” MCL 600.5856(c). One
cannot fairly say that a claim would be barred “during”
the notice period when the notice period has not begun
due to the plaintiff’s failure to file a sufficient notice.
Further, the tolling period is equal to the “number of
days remaining in the applicable notice period after the
date notice is given.” MCL 600.5856(c). Because a
defective notice does not create an applicable notice
period under § 2912b(1), the number of days remaining
in that period cannot be determined. Thus, if a defective
notice is allowed to toll, the notice-tolling provision
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would provide no guidance for determining the tolling
period. The only manner by which the notice-tolling
provision can be given meaningful effect is to interpret
it as requiring the notice specifically contemplated in
§ 2912b(4), which creates the applicable notice period to
which the tolling provision repeatedly refers. Accord-
ingly, contrary to the majority, I believe that a defective
notice cannot toll the statute of limitations under
§ 5856(c).
Here, plaintiff’s notice was defective because it did
not contain any statement regarding the standard of
care for claims alleging direct liability against West
Michigan Cardiovascular and Spectrum Health. Plain-
tiff’s failure to include any statement regarding the
standard of care for Sugiyama’s and Mansour’s alleged
malpractice also makes the notice defective for vicari-
ous liability claims against Spectrum Health based
upon their malpractice. Because plaintiff’s notice was
defective in this regard, the statute of limitations for
those claims was not tolled by § 5856(c). Moreover,
because the statute of limitations was not tolled, and
because plaintiff’s complaint was filed more than two
years after the alleged malpractice, these claims are
time-barred and should be dismissed with prejudice.
B. RESPONSE TO THE MAJORITY
The majority’s interpretation is at odds with its own
assertion that “[t]he statute must be interpreted in a
manner that ensures that it works in harmony with the
entire statutory scheme.” Ante at 167. By focusing only
on the amended language in the notice-tolling provi-
sion’s first clause, the majority disregards the implica-
tions of the remaining portion of the provision. Ante at
169-170. Such an analysis is incomplete in light of the
direct correlation that the remaining portion of the
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provision has with § 2912b and its notice period. Al-
though the legislative amendment may only have al-
tered parts of § 5856(c), the whole scheme nonetheless
must be considered in order to determine the Legisla-
ture’s intent. The numerous references to the notice
period in § 5856(c) necessarily mean that the period
established by § 2912b(1) must have come into being in
the first place for those references to be given any effect,
and this can only take place when notice that complies
with § 2912b(4) has been supplied. The majority, how-
ever, interprets the notice-tolling provision in a manner
that bears no logical relationship with the statute that
requires that notice be given in the first place. Thus,
rather than adopting an interpretation that “works in
harmony with the entire statutory scheme,” the major-
ity instead adopts an interpretation that raises an
insoluble tension between the tolling provision and the
notice statute that will only be resolved by years of
litigation, which perhaps is the whole point of the
majority’s exercise.
This tension arises most clearly in the form of MCL
600.2301, which the majority employs to sustain its
conclusion that a defective notice can toll the statute of
limitations, because a court can thereby “disregard any
error or defect” in the notice. MCL 600.2301 provides:
The court in which any action or proceeding is pending,
has power to amend any process, pleading or proceeding in
such action or proceeding, either in form or substance, for
the furtherance of justice, on such terms as are just, at any
time before judgment rendered therein. The court at every
stage of the action or proceeding shall disregard any error
or defect in the proceedings which do not affect the
substantial rights of the parties. [Emphasis added.]
Without reference to any language from the tolling or
notice statutes, the majority ascertains that a “good-
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faith attempt to comply with the content requirements
of § 2912b” allows tolling under § 5856(c), ante at 178,
because any defect “should be disregarded or cured by
amendment,” ante at 180.
As this Court explained in Boodt, 481 Mich at 563 n
4, “§ 2301 only applies to pending actions.” As discussed
above, § 2912b(1) provides that a person “shall not
commence an action alleging medical malpractice
against a health professional or health facility unless
the person has given the health professional or health
facility written notice under this section not less than
182 days before the action is commenced.” Section
2912b(4) states that the “notice given to a health
professional or health facility under this section shall
contain a statement of at least all of the following ....”
Therefore, “a plaintiff cannot commence an action
before he or she files a notice of intent that contains all
the information required under § 2912b(4).” Boodt, 481
Mich at 562-563. An action is not “pending” if it cannot
be “commenced,” and § 2912b(1) clearly prohibits a
plaintiff from commencing an action before giving suf-
ficient notice. I would not allow a plaintiff who is out of
compliance with § 2912b, and thus not in compliance
with the medical malpractice reforms enacted by our
Legislature, to take advantage of the amendment pro-
vision. Accordingly, § 2301 is inapplicable, and a plain-
tiff cannot retroactively “amend” the notice of intent,
and the courts cannot “disregard any error or defect” in
the notice of intent.
Although I disagree in almost all respects with the
majority’s analysis regarding the amended notice-
tolling provision, I note in particular the following
difficulties with this analysis:
(1) The majority states that it “cannot assume that
language chosen by the Legislature is inadvertent” or
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that a “change means nothing at all.” Ante at 169-170.
Why exactly is “interpret[ing] the amended statute in
the same manner [as]...thepre-amendment statute”
something that this Court “cannot do”? Ante at 169.
The beginning point for interpreting a statute must
always be its language. Wickens v Oakwood Healthcare
Sys, 465 Mich 53, 60; 631 NW2d 686 (2001). Even after
an amendment, the statute must continue to control,
because it constitutes the law of this state. In light of
the majority’s position that any amendment must exact
some change in meaning, what choice does the Legisla-
ture have if it wishes to make minor amendments to
clarify a certain portion of a statute consistent with the
Court’s interpretation? The majority’s position is espe-
cially dubious when the Legislature, as it did here,
makes minor changes to one part of a statute at the
same time that it makes major changes to another part.
9
While in many and perhaps most instances it undoubt-
edly is the legislative intent, in enacting an amendment, to
change existing law, there are, as undoubtedly, other in-
stances, particularly if uncertainty exists as to the meaning
of a statute, when amendments are adopted for the purpose
of making plain what the legislative intent had been all
9
The major change made to MCL 600.5856 was the amendment to the
provision that begins tolling when a complaint is filed. That provision
now states that “[t]he statutes of limitation or repose are tolled...[a]t
the time the complaint is filed, if a copy of the summons and complaint
are served on the defendant within the time set forth in the supreme
court rules.” MCL 600.5856(a). Previously, the statute of limitations was
tolled “[a]t the time the complaint is filed and a copy of the summons and
complaint are served on the defendant.” The amendment also completely
deleted previous subsection (c), which allowed tolling when the complaint
was filed and “placed in the hands of an officer for immediate service.”
This reflects the Legislature’s focus on returning complaint tolling to the
way it previously operated, which Gladych v New Family Homes, Inc, 468
Mich 594; 664 NW2d 705 (2003), found inconsistent with the pre-
amendment version of § 5856(a).
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along from the time of the statute’s original enactment.
[Detroit Edison Co v Janosz, 350 Mich 606, 614; 87 NW2d
126 (1957).]
Indeed, it seems most reasonable that the Legislature’s
minimal changes to the notice-tolling provision were
intended only to clarify the precise moment at which
the statute of limitations would be tolled. The pre-
amendment version, by stating that the “statutes of
limitations or repose are tolled . . . [i]f, during the
applicable notice period under section 2912b, a claim
would be barred by the statute of limitations or repose,”
MCL 600.5856(d), clearly described the circumstances
by which the statute of limitations could be tolled, but
was less clear regarding at what point in time the
tolling actually began. Conversely, the other tolling
provisions did not suffer from this same infirmity by
stating that the “statutes of limitations or repose are
tolled...[a]t the time” a specific action occurred. See
pre-amendment MCL 600.5856(a) through (c). With
this amendment, the Legislature changed the notice-
tolling provision so that it too now states that the
tolling starts “[a]t the time” the specified action occurs.
In light of the identity to the other tolling provisions
created by the amendment, I believe the amendment is
best interpreted as effecting the same meaning that the
identical language carries. Adding the phrase “[a]t the
time” clearly denotes that the tolling begins upon the
occurrence of the specified act. Interpreting the amend-
ment as such clarification does not render it “inadvert-
ent.” Ante at 169. Instead, this recognizes that the
Legislature sought to enhance the clarity of the notice-
tolling provision to the level of the other provisions and
did so through a minor alteration.
(2) The majority creates a new standard for deter-
mining whether a notice complies with § 2912b(4) by
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stating: “A defendant who has enough medical expertise
to opine in his or her own defense certainly has the
ability to understand the nature of claims being as-
serted against him or her even in the presence of defects
in the NOI.” Ante at 178. This new subjective standard
based on the defendant’s “medical expertise” is not only
divorced from the statute, but it is also inconsistent
with the current standard set forth in Roberts v Mecosta
Co Gen Hosp (After Remand), 470 Mich 679, 701; 684
NW2d 711 (2004) (Roberts II): “[T]he claimant is re-
quired to . . . provide details that are responsive to the
information sought by the statute and that are as
particularized as is consistent with the early notice
stage of the proceedings.” (Emphasis in original.) The
majority thereby clumsily disposes of a standard that
required a plaintiff to comply with all the statutory
requirements in favor of one that requires the plaintiff
to follow the law only to the extent that the court
believes a defendant’s “medical expertise” can fill the
gaps of the plaintiff’s noncompliance, all without ex-
plaining even perfunctorily why the new standard is
consistent with the law actually enacted by the Legis-
lature, as opposed to the statute the majority wishes
had been adopted.
(3) The majority’s amendment process allows a plain-
tiff to commence his action 182 days after giving defec-
tive notice despite the fact that § 2912b(1) disallows a
plaintiff from commencing suit unless he has given
“written notice under this section.” In other words, the
majority has rewritten § 2912b(1) to enable a plaintiff
to commence his suit 182 days after giving defective
notice if it manifests the plaintiff’s “good-faith attempt
to comply with § 2912b(4).” Ante at 178. Cf. Roberts I,
466 Mich at 66 (holding that a “plaintiff must fulfill the
preconditions of § 2912b(4) in order to maintain a
medical malpractice action”). By this revision, the ma-
198 484 M
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jority rejects the Legislature’s intention that notice
“shall contain [specific] statement[s]” and substitutes
its own goal of allowing plaintiffs to commence their
actions despite obvious omissions that completely frus-
trate the purpose of the legislative notice procedure.
10
The majority never explains how the tolling statute
amendment compels this rewriting of the notice statute,
most likely because no valid explanation exists. The
majority cannot cite anything in the amendment that
altered the clear language in § 2912b(1), nor can it cite
anything that indicates the Legislature intended that
such language be ignored.
(4) The majority questions in dictum “whether Rob-
erts I and Boodt were correctly decided” based on its
interpretation of the amended notice-tolling provision,
ante at 175 n 34, even after acknowledging that those
cases “relied on language of a statute that is no longer
in existence,” ante at 166. The majority’s disagreement
with Boodt seems to be based largely on its misunder-
standing of that decision. Boodt held that a plaintiff’s
complaint does not toll the statute of limitations pur-
suant to § 5856(a) after defective notice has been given,
because § 2912b(1) disallows a plaintiff from commenc-
ing an action unless the plaintiff has given “written
notice under this section.” Boodt, 481 Mich at 564. The
majority, however, interprets Boodt as holding that “no
10
The majority provides no guidance regarding how lower courts
should evaluate “good faith,” beyond the dubious guidance afforded by its
conclusion in this case that plaintiff’s notice meets this threshold even
though the majority agrees that plaintiff wholly omitted the statements
required by § 2912b(4)(b) through (e) for direct liability claims against
Spectrum Health and West Michigan Cardiovascular and those required
by § 2912b(4)(b), (c), and (e) for vicarious liability claims against Spec-
trum Health. Ante at 178-180, citing 278 Mich App at 711, 716-717. The
only real guidance that can be gleaned from this conclusion is that the
Legislature’s words are no longer much relevant to understanding the
law of this state.
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tolling was afforded in the presence of a defect pursu-
ant” to the notice-tolling provision, and thus “the
plaintiff’s action was not commenced under
§ 2912b(1).” Ante at 170 n 26. Thus, notice-tolling was
never an issue in Boodt, yet the majority inexplicably
finds that its interpretation of the notice-tolling provi-
sion throws Boodt into question. As for Roberts I, the
majority never explains any possible errors in that
decision other than to say that it “opined,” rather than
“held,” that “the focus of § 5856(d) was on compliance
with § 2912b in its entirety.” Ante at 169. The majority
thus attempts to diminish the validity of Roberts I by
characterizing this decision as simply an expression of
one possible opinion among many, rather than actually
analyzing the law in any coherent manner to demon-
strate why Roberts I may be incorrect.
11
Although the
majority makes clear that it disagrees with the results
reached in Roberts I and Boodt, it does not deign to
explain why the law does not support those results.
(5) By finding that § 2912b “is silent regarding the
consequences of filing a defective NOI” and “makes no
reference whatsoever to a mandatory dismissal penalty
in the event of a defect,” the majority raises an irrel-
evant issue concerning “whether a mandatory dismissal
with prejudice under § 2912b was the intent of the
Legislature.” Ante at 172-173. However, this Court has
never held that a defective notice alone requires “man-
datory dismissal with prejudice.” By phrasing its in-
11
The Court’s decision in Roberts I that the pre-amendment notice-
tolling provision required notice compliant with § 2912b to toll was
supported by all seven justices, including three currently in the majority
who now question it. See Roberts I, 466 Mich at 67; id.at72(K
ELLY
,J.,
dissenting) (“[T]o begin the tolling of the MCL 600.5856(d) statute of
limitations, a plaintiff must fully comply with the requirements of MCL
600.2912b.”).
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quiry as it does, the majority obviously misapprehends
the procedure by which plaintiff’s claims were dis-
missed.
First, the majority overlooks the interplay between
the statute of limitations and the notice-tolling provi-
sion. The Legislature clearly created a two-year limita-
tions period for medical malpractice actions, and then
clearly stated that an action cannot be commenced after
that period has expired. It also clearly created a tolling
provision that allows the limitations period to be sus-
pended if a claimant gives notice pursuant to § 2912b. If
notice is not given, then tolling is not triggered. If
tolling is not triggered and the statute of limitations
expires, the latter operates in the same manner that it
does in every other action: it bars claims from being
commenced after its expiration.
Second, even if a defective notice does not toll the
statute of limitations, this Court has never held that the
defect requires “mandatory dismissal with prejudice.”
Ante at 173 (emphasis added).
12
In fact, current caselaw
supports the exact opposite proposition, namely that a
plaintiff filing a defective notice can avoid dismissal
with prejudice by simply correcting the notice so that it
complies with § 2912b(4) before the statute of limita-
tions has expired. In Mayberry v Gen Orthopedics, PC,
474 Mich 1, 3; 704 NW2d 69 (2005), this Court held that
“a second notice of intent to sue, sent with fewer than
182 days remaining in the limitations period, can ini-
tiate tolling under § 5856(d) as long as the first notice of
intent to sue did not initiate such tolling.” Thus, under
12
This Court has held that “dismissal is an appropriate remedy for
noncompliance with the notice provisions.” Burton v Reed City Hosp
Corp, 471 Mich 745, 753; 691 NW2d 424 (2005). Whether the dismissal is
with prejudice depends on whether the plaintiff can “still comply with the
applicable statute of limitations.” Id.
2009] B
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these circumstances, nothing would bar a claimant
from filing a second notice to take advantage of the
notice-tolling provision.
Here, rather than not tolling because there were
more than 182 days remaining in the limitations period,
plaintiff’s notice, filed within the last 182 days of the
limitations period, did not toll because it was defective.
Although plaintiff only had two days in which to correct
the defects, had he done so within that time, the statute
of limitations would have been tolled and he could have
timely commenced his action after the 182-day waiting
period. Thus, any time a defective notice is filed, the
plaintiff always has the opportunity to revise the notice
to comply with § 2912b(4), at least until the expiration
of the statute of limitations, and the defect alone does
not mandate dismissal with prejudice.
(6) Without regard to the fact that a provision for
“mandatory dismissal with prejudice” is unnecessary in
§ 2912b due to the dismissal necessitated by the statute
of limitations, the majority proceeds with its misguided,
and fruitless, search for direction from the Legislature
that a defective notice requires “mandatory dismissal
with prejudice.” Unsurprisingly, the majority finds no
such mandate, but rather concludes that the Legisla-
ture rejected a “mandatory dismissal” based on its
interpretation of a provision of the initial notice legis-
lation that the Legislature never adopted. Ante at 173.
Although “actions of the Legislature in considering
various alternatives in language in statutory provisions
before settling on the language actually enacted” may
constitute a legitimate form of legislative history, In re
Certified Question, 468 Mich 109, 115 n 5; 659 NW2d
597 (2003), the majority’s use of it here exemplifies well
the shortcomings inherent in such approach. To reason-
ably discern legislative intent from rejected language,
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the rejected provision should be considered as a whole,
rather than partially as the majority does by only
looking at the first sentence of the provision. The full
provision stated:
Except as otherwise provided in this subsection, in an
action alleging medical malpractice, the court shall dismiss
a claim not included in the notice required under section
2912f. This subsection does not apply to a claim that results
from previously unknown information gathered during
discovery.
As an initial matter, this seems entirely unrelated to the
statute of limitations under which dismissal is granted.
The Legislature’s rejection of an unrelated provision
can hardly be used to alter the clear meaning of a
statute. It seems far more reasonable to conclude that
the Legislature rejected this provision in favor of
§ 2912b(3), which provides for similar treatment of the
same subject matter: undiscovered claims.
13
Rather
than considering this to be the Legislature’s rationale
for rejecting the initial provision, the majority con-
cludes that it “can draw no conclusion from the omis-
sion . . . other than it was not the intent of the Legisla-
ture to incorporate a mandatory dismissal penalty into
§ 2912b.” Ante at 174. Most other observers of this same
legislative history would without much difficulty be
able to draw “another conclusion,” and would almost
certainly be far closer to reality than the majority. How
can the majority draw an informed conclusion concern-
ing legislative history from a provision never enacted
13
MCL 600.2912b(3) provides a shortened notice period for a claim not
in the initial notice only if the plaintiff “did not identify, and could not
reasonably have identified a health professional or health facility to
which notice must be sent” before filing the complaint against the other
parties.
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without even considering a provision that has been
enacted and actually substituted for the never-enacted
provision?
(7) The majority concludes that “[t]o hold that
§ 2912b in and of itself mandates dismissal with preju-
dice...would be inconsistent with” § 2912b’s “stated
purpose of...‘promoting settlement....’” Ante at
174-175 (citation omitted). However, the majority does
not explain how allowing a defective notice to substitute
for the notice required by § 2912b(4) in any way “ ‘pro-
mot[es] settlement.’ ” Ante at 174. The likelihood of
settlement almost certainly increases with the amount
of information that the parties have regarding the
subject of settlement. How can the majority’s interpre-
tation conceivably encourage settlement when it com-
pels defendants to proceed on the basis of incomplete
information?
IV. WAITING PERIOD
The second major issue concerns how long a plaintiff
must wait after giving notice before filing his complaint.
The relevant statutory provisions state:
(1) Except as otherwise provided in this section, a
person shall not commence an action alleging medical
malpractice against a health professional or health facility
unless the person has given the health professional or
health facility written notice under this section not less
than 182 days before the action is commenced.
***
(7) Within 154 days after receipt of notice under this
section, the health professional or health facility against
whom the claim is made shall furnish to the claimant or his
or her authorized representative a written response that
contains a statement of each of the following:
(a) The factual basis for the defense to the claim.
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(b) The standard of practice or care that the health
professional or health facility claims to be applicable to the
action and that the health professional or health facility
complied with that standard.
(c) The manner in which it is claimed by the health
professional or health facility that there was compliance
with the applicable standard of practice or care.
(d) The manner in which the health professional or
health facility contends that the alleged negligence of the
health professional or health facility was not the proximate
cause of the claimant’s alleged injury or alleged damage.
(8) If the claimant does not receive the written response
required under subsection (7) within the required 154-day
time period, the claimant may commence an action alleging
medical malpractice upon the expiration of the 154-day
period. [MCL 600.2912b.]
After receiving plaintiff’s notice, Shabahang responded,
but his response did not satisfy the requirements of
§ 2912b(7).
14
Plaintiff then commenced his action 175
days after giving notice. I agree with the majority that
a plaintiff can make a tentative determination regard-
ing the sufficiency of a defendant’s response pursuant
to § 2912b(7), and I also agree with the Court of Appeals
that plaintiff did not need to challenge the sufficiency of
Shabahang’s response before filing his complaint pur-
suant to the shortened waiting period established by
§ 2912b(8).
A plaintiff can file his suit after 154 days if he “does
not receive the written response required under subsec-
tion (7)” within 154 days after giving notice. MCL
600.2912b(8). Importantly, the response a plaintiff must
receive is that “required under subsection (7),” which
clearly states that the defendant “shall furnish” a
14
Shabahang’s response clearly did not satisfy the substantive require-
ments of § 2912b(7), because it was completely unresponsive to those
requirements. See ante at 182-183.
2009] B
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response “that contains” specific statements. Thus,
similar to the requirements for a plaintiff’s notice,
§ 2912b(7) places the burden on the defendant to pro-
vide a written response that includes the requisite
statements. See Roberts II, 470 Mich at 686; Roberts I,
466 Mich at 66. If the defendant does not provide those
specific statements, then the response cannot be said to
be the one required by § 2912b(7). Plaintiff, therefore,
may file his complaint after 154 days, because he did not
receive the proper response.
However, to require a plaintiff to wait for a judicial
determination regarding the sufficiency of defendant’s
response would effectively nullify the requirements of
§ 2912b(7). That is, a defendant could give a response
that failed to comply with § 2912b(7) and suffer no
consequences, because the only possible statutory con-
sequence, plaintiff’s early filing, would be unavailable
until the court determined that the defendant’s re-
sponse was defective, and by that time, the 28 days
between the 154-day period and the 182-day period
would almost certainly have elapsed. Accordingly, plain-
tiff here properly filed his complaint against Shabahang
based on his own determination that he never received
the response required by § 2912b(7).
15
Rather than adopting this straightforward under-
standing of § 2912b(8), the majority feels the need to
additionally read into the law an entirely concocted and
gratuitous “good faith” standard in determining
whether the defendant’s response is sufficient. That is,
rather than assessing the defendant’s response, and
comparing it to the requirements of the statute, a
plaintiff must now consider whether defendant’s re-
15
A plaintiff makes such determination at his own peril. If a court later
determines that the response was not defective, then the plaintiff’s
complaint is subject to dismissal because he did not wait the full 182 days.
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sponse constituted a “good-faith attempt to comply with
the content requirements of the statute....”Ante at 182.
In the place of a clear rule of law, the majority interposes
an obscure and vague standard by which a plaintiff , who
probably desires nothing more than to know what is
statutorily required of each party, must now assess the
mindset of the defendant. The majority, of course, supplies
no guidance for how to satisfy its new standard, which
poses a particular conundrum for plaintiffs, because, if a
court determines that a response was made in “good
faith,” the majority holds that the trial court should allow
defendant to amend his response. Ante at 182. This means
that if the plaintiff relied on his own assessment that the
response was defective, and filed before the 182-day period
had expired, defendant’s amendment could retrospec-
tively make the complaint untimely. Doubtlessly, however,
the majority will “correct” this problem in some later
decision by a new word formula that is equally disregard-
ful of the language of the statute. By contrast, I would
simply hold that a plaintiff may avail himself of the
154-day filing option if the defendant’s response does not
comply with the requirements of § 2912b(7), without
regard to whether the defendant has or has not made a
“good faith” effort to comply with that provision.
V. CONCLUSION
In summary, my concerns with the majority opinion
are: (1) it ignores the great bulk of the language of the
notice-tolling provision in interpreting that provision;
(2) it ignores the larger statutory scheme within which
the notice-tolling provision is located; (3) it creates a
new “rule” whereby legislative amendments must be
interpreted to alter the meaning of the amended statute
even if the statute’s clear language suggests otherwise;
(4) it creates a new standard for determining a notice’s
2009] B
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sufficiency that bears no relationship to the actual
requirements set forth by the Legislature in § 2912b(4),
in the process also giving no consideration to the
standard set forth in Roberts II; (5) it gratuitously
questions the validity of Roberts I and Boodt even
though they interpreted a different version of the
notice-tolling provision that has no bearing on the
instant case; (6) it has interpreted an amendment of one
statute to completely alter the meaning of another
statute; (7) it allows proposed legislation that was never
enacted to trump the meaning of legislation that was
actually enacted; and (8) it reads words into a statute
that are not there by concocting a “good faith” require-
ment in § 2912b(7).
I dissent and would hold that tolling can only be
effected pursuant to § 5856(c) by a plaintiff’s notice of
intent that complies with the requirements of
§ 2912b(4). Accordingly, dismissal should be with preju-
dice with regard to West Michigan Cardiovascular and
Spectrum Health, because plaintiff’s notice did not toll
the statute of limitations for those claims and his
complaint was filed after the limitations period had
expired. Further, I would hold that a plaintiff may
commence an action 154 days after giving notice if the
defendant’s response does not comply with the require-
ments of § 2912b(7), rather than introducing a new
“good faith” requirement in assessing such response.
Because Shabahang’s response did not comply with the
requirements of § 2912b(7), plaintiff properly com-
menced his action 175 days after giving notice.
C
ORRIGAN
and Y
OUNG
, JJ., concurred with M
ARKMAN
,
J.
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JACKSON v GREEN ESTATE
Docket No. 136423. Argued April 7, 2009 (Calendar No. 3). Decided July
30, 2009.
Joan B. Jackson brought an action in the Charlevoix Circuit Court
against Ronald Green, alleging a breach of contract in the failure
to repay loans made pursuant to oral agreements and seeking
possession of two parcels of land: one they owned as joint tenants
and another they owned as joint tenants with full rights of
survivorship. The court, Richard M. Pajtas, J., granted Green
summary disposition with respect to the land, concluding that the
deeds conveying it were valid. The court denied Green summary
disposition with regard to the loans, however, concluding that the
statute of limitations did not bar Jackson’s breach of contract
claim. A jury subsequently found in Jackson’s favor on the breach
of contract claim. Jackson appealed the grant of summary dispo-
sition in Green’s favor on the issue of the deeds, and Green
cross-appealed the denial of his summary disposition motion on
the breach of contract claim. Green also filed a separate action to
partition the parcels, which was stayed pending the appeal. Green
died while the appeal was pending, and his estate was substituted
as the plaintiff in the partition action and as the defendant in this
case. The Court of Appeals, M
ARKEY
,P.J., and M
ETER
and M
URRAY
,
JJ., affirmed in part, vacated in part, and remanded the case in an
unpublished opinion per curiam, issued April 1, 2008 (Docket No.
269244). The Court held that because of Green’s death and the
lack of a partition order, Green’s interest in the parcels of land had
reverted to Jackson on his death. The Court also affirmed the trial
court’s denial of summary disposition on the breach of contract
claim. The Supreme Court granted the estate leave to appeal. 482
Mich 981 (2008).
The Supreme Court affirmed the judgment of the Court of
Appeals.
Justice C
ORRIGAN
, joined by Justices Y
OUNG
and M
ARKMAN
, would
hold that a joint tenant can sever an ordinary joint tenancy by
compelling a partition. The filing of a partition action, however,
does not by itself sever a joint tenancy. Until the court enters a
partition order, a partition has not been compelled, and the joint
2009] J
ACKSON V
G
REEN
E
STATE
209
tenancy has not been severed. Green’s interest in the parcel that
he and Jackson held as ordinary joint tenants thus did not survive
his death because no partition order had been entered. The
judgment of the Court of Appeals on this issue should be affirmed.
Justice Y
OUNG
, joined by Justice C
ORRIGAN
, would hold that the
period of limitations does not begin to run on a breach of contract
claim related to oral loans that have no fixed time for repayment
until either the lender demands payment, expressly or by filing a
complaint, or a reasonable amount of time elapses without a
demand. Because the oral loan agreements in this case did not set
a time for repayment, they were payable on demand. Thus, Green
could not have breached the oral loan agreements until Jackson
demanded payment or until a reasonable amount of time had
elapsed. What constitutes a reasonable amount of time to demand
payment is a factual question for the jury to decide. Jackson did
not demand payment until she filed this lawsuit, and the finder of
fact properly decided the question. The judgment of the Court of
Appeals on this issue should be affirmed.
Justice M
ARKMAN
would hold that the statute of limitations
bars Jackson’s recovery on all but the last loan made because it
was the only one to fall within the six-year limitations period for
contract claims. Under Palmer v Palmer, 36 Mich 487 (1877), a
note payable on demand is payable at once and without a
demand, so the period of limitations runs from the date of the
note’s delivery. Because Palmer (a) establishes at least some
modicum of certainty with respect to the period within which a
lawsuit can be brought, one of the principal purposes of a
statute of limitations, (b) has adequately served as the law of
this state for well over a century, and (c) should apply equally to
written and oral contracts, because the policies underlying
statutes of limitations are implicated no less strongly in the
latter than in the former circumstances, the judgment of the
Court of Appeals on this issue should be reversed.
Justice C
AVANAGH
, joined by Chief Justice K
ELLY
, would allow
the merits of Green’s partition action to be heard because it is an
action that comes within the purview of the survival statute, MCL
600.2921, which provides that all actions survive a claimant’s
death. With regard to the statute of limitations issue, Justice
C
AVANAGH
would apply the rule of Smith v Smith Estate, 91 Mich 7
(1892), which held that if a plaintiff failed to make a demand for
repayment within a reasonable time, the court will presume that a
demand was made at the expiration of a reasonable time and the
period of limitations will begin to run at that time. As a matter of
law, the reasonable time for making a demand is six years, which
210 484 M
ICH
209 [July
is the time equivalent to the period of limitations for bringing an
ordinary money claim, and the plaintiff then has six years under
the statute of limitations to bring suit. Thus, a plaintiff who does
not demand repayment has 12 years to bring a contract action on
an oral loan that specified no time for repayment. All of Jackson’s
claims were timely made except those for the two loans given more
than 12 years before she filed her complaint. The judgment of the
Court of Appeals on both issues should be reversed.
Justice W
EAVER
, joined by Justice H
ATHAWAY
, stated that leave to
appeal was improvidently granted because the result the Court of
Appeals reached was correct.
Laurie S. Longo and Dickinson Wright PLLC (by
John G. Cameron, Jr.) for Joan B. Jackson.
Brown Powers, PLLC (by Bridget Brown Powers and
Jennifer J. Schafer), for the estate of Ronald Green.
C
ORRIGAN
, J. We granted leave to appeal to consider
whether an action to partition real estate may go
forward when the joint tenant who filed the action died
before an order of partition entered.
1
We would hold
that title vested in the surviving joint tenant on the
decedent’s death because the mere filing of a partition
action does not sever a joint tenancy and no order
granting partition was entered before the death. We
would thus affirm the trial court’s denial of defendant’s
motion for summary disposition and the judgment of
the Court of Appeals on the partition issue.
I. FACTS AND PROCEEDINGS
At issue in this case are two parcels of real estate held
by plaintiff and defendant as joint tenants and a series
1
We also granted leave to appeal to consider whether the statute of
limitations bars plaintiff’s claim for breach of contract. That issue is
addressed in separate opinions by Justices C
AVANAGH
,Y
OUNG
, and
M
ARKMAN
.
2009] J
ACKSON V
G
REEN
E
STATE
211
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ORRIGAN
,J.
of oral loans from plaintiff to defendant.
2
In May 1991,
defendant negotiated the purchase of a parcel of land on
behalf of plaintiff, and the deed conveyed the land to
both parties as joint tenants. In September 1991, plain-
tiff purchased a second parcel of property, which was
conveyed to plaintiff and defendant as joint tenants
with full rights of survivorship.
In 2004, plaintiff filed a breach of contract action,
alleging that defendant had failed to repay the loans.
Plaintiff also sought to force defendant to relinquish his
right to the two parcels of land. The trial court granted
summary disposition for defendant regarding the deeds
for the properties, holding that the deeds were properly
executed and gave defendant valid property interests.
Regarding the loans, the court did not accept defen-
dant’s argument that the statute of limitations barred
plaintiff’s claim. A jury found that each check plaintiff
issued to defendant was a loan, and the court entered
judgment on the verdict in plaintiff’s favor.
Defendant then filed a separate action for partition of
the parcels. At plaintiff’s request, the partition action
was stayed pending the appeal in this case. Defendant
unexpectedly died while the appeal was pending in the
Court of Appeals. His estate was substituted as the
plaintiff in the partition action and as the defendant in
this case.
The Court of Appeals affirmed the trial court’s ruling
that defendant possessed a valid property interest in
the two parcels, but held that because no order severing
the joint tenancy had issued in the partition action
before defendant died, defendant’s interests in the
parcels reverted to plaintiff upon defendant’s death.
2
The defendant’s estate was substituted as a party when the original
defendant died, but for ease of reference we will refer to both the original
defendant and his estate as “defendant.”
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ICH
209 [July
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ORRIGAN
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The Court of Appeals further held that the statute of
limitations did not bar plaintiff’s breach of contract
action for repayment of the loans because the claim did
not accrue until plaintiff demanded repayment by filing
her complaint in 2004.
3
We granted defendant’s application for leave to ap-
peal.
4
II. STANDARD OF REVIEW
Whether a partition action may go forward if a joint
tenant dies before the joint tenancy is severed is a
question of law that we review de novo. Cardinal
Mooney High School v Michigan High School Athletic
Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991).
III. PARTITION
We agree with the Court of Appeals that defendant’s
interest in the parcel of land
5
automatically reverted to
plaintiff when defendant died. Thus, defendant’s estate
has no interest in the property, and even if defendant’s
partition action survived his death under Michigan’s
survival statute, MCL 600.2921, nothing remains to
partition.
“The principal characteristic of the joint tenancy is
the right of survivorship. Upon the death of one joint
tenant, the surviving tenant or tenants take the whole
estate.” Albro v Allen, 434 Mich 271, 274-275; 454
3
Jackson v Green Estate, unpublished opinion per curiam of the Court
of Appeals, issued April 1, 2008 (Docket No. 269244).
4
482 Mich 981 (2008).
5
Only the parcel conveyed in the May 1991 deed is currently at issue.
Defendant does not dispute plaintiff’s right of survivorship in the
property conveyed in the September 1991 deed.
2009] J
ACKSON V
G
REEN
E
STATE
213
O
PINION BY
C
ORRIGAN
,J.
NW2d 85 (1990). An ordinary joint tenancy
6
may be
severed, and the right of survivorship thereby de-
stroyed, by an act of the parties, conveyance by either
party, or levy and sale on an execution against one of the
parties. Id. at 275.
A party can sever a joint tenancy by compelling a
partition. Smith v Smith, 290 Mich 143, 155; 287 NW
411 (1939), quoting Midgley v Walker, 101 Mich 583,
584; 60 NW 296 (1894). Until an order of partition has
been entered, however, a partition has not been com-
pelled and, thus, the joint tenancy has not been severed.
See Anno: What acts by one or more of joint tenants will
sever or terminate the tenancy, 64 ALR2d 918, 956
(explaining that “[i]t is not the filing of the partition
action which terminates the joint tenancy, but only the
judgment in such action which has that effect”) (quo-
tation marks and citation omitted).
Indeed, the universal rule in the United States is that
a pending suit for partition does not survive the death
of one of the joint tenants. See Heintz v Hudkins, 824
SW2d 139, 142-143 (Mo App, 1992), and cases cited
therein. “This rule is based on two related concepts:
First, the theory of survivorship—that at the moment
of death, ownership vests exclusively in the surviving
joint tenant or tenants—and second, the doctrine that
severance of the joint tenancy does not occur until the
6
In addition to an ordinary joint tenancy, Michigan recognizes a
distinct category of joint tenancy known as a “joint tenancy with full
rights of survivorship,” which consists of a joint life estate with dual
contingent remainders. Albro, supra at 275; see also 1 Cameron, Michi-
gan Real Property Law (3d ed), § 9.11, p 322. “While the survivorship
feature of the ordinary joint tenancy may be defeated by the act of a
cotenant, the dual contingent remainders of the ‘joint tenancy with full
rights of survivorship’ are indestructible.” Albro, supra at 275-276. The
parcel at issue here, the one conveyed in the May 1991 deed, was held
under an ordinary joint tenancy.
214 484 M
ICH
209 [July
O
PINION BY
C
ORRIGAN
,J.
partition suit reaches final judgment.” Id., citing Cobb v
Gilmer, US App DC 398, 400; 365 F2d 931 (1966).
Accordingly, we would hold that the filing of the
partition action did not sever the joint tenancy because
an order effectuating a partition had not entered at the
time of defendant’s death. Therefore, regardless of
whether defendant’s partition action survived his death
under the survival statute, his interest in the parcel of
land did not.
IV. CONCLUSION
We would hold that defendant’s filing of the partition
action did not sever the joint tenancy because no order
granting partition was entered before defendant’s
death. Thus, title vested in plaintiff when defendant
died, and nothing remains to partition. The Court of
Appeals correctly analyzed the partition issue, and we
would therefore affirm its judgment on that issue.
Y
OUNG
and M
ARKMAN
, JJ., concurred with C
ORRIGAN
,
J.
Y
OUNG
, J. I agree with the analysis set forth in Justice
C
ORRIGAN
’s opinion, which affirms the Court of Appeals
on the partition issue. I would further hold that the
statute of limitations does not bar plaintiff’s claim for
breach of contract on the series of oral agreements for
loans. Because the loans were made with no fixed time
of repayment, they were payable on demand. The period
of limitations would not begin to run on such a claim
until either a demand was made, expressly or by filing a
complaint, or a reasonable amount of time had elapsed
without a demand. In this case, no demand was made
until the action was filed.
2009] J
ACKSON V
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REEN
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STATE
215
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PINION BY
Y
OUNG
,J.
The issue of when a period of limitations begins to
run on an oral agreement for a loan that has no fixed
date of payment is a question of law that we review de
novo. Collins v Comerica Bank, 468 Mich 628, 631; 664
NW2d 713 (2003).
The applicable limitations period for plaintiff’s
breach of contract claim is six years. MCL 600.5807(8).
The central issue here is when the limitations period
began to run. “Except as otherwise expressly provided,
the period of limitations runs from the time the claim
accrues.” MCL 600.5827. Moreover, a claim generally
accrues when the wrong is done. Boyle v Gen Motors
Corp, 468 Mich 226, 231; 661 NW2d 557 (2003).
The general rule governing the commencement of the
running of the statute of limitations is that the statutory
period is computed from the time when the right of action
that the plaintiff seeks to enforce first accrued; ordinarily,
in an action based on a contract, accrual occurs as soon as
there is a breach of contract, with some courts qualifying
this by stating that accrual occurs when the promisee
discovers or should have discovered the breach, and others
stating that accrual occurs upon breach, whether or not the
promisee is then aware of the breach. [31 Williston, Con-
tracts (4th ed), § 79:14, pp 303-307 (emphasis added).]
In determining when the period of limitations begins to
run on a loan that has no repayment term, we must
therefore necessarily determine when a breach of con-
tract occurs.
The oral loan agreements in this case did not set a
time for repayment. There is no controlling caselaw
that establishes when a borrower is in breach of an oral
loan agreement that is silent concerning when repay-
ment must occur. Thus, this Court should articulate a
rule of law to determine when a breach occurs under
the circumstances in this case.
216 484 M
ICH
209 [July
O
PINION BY
Y
OUNG
,J.
We do have some established bedrock principles to
guide us in formulating such a rule. A loan made with
no fixed time of repayment is payable on demand.
Colburn v First Baptist Church & Society of Monroe ,60
Mich 198, 200; 26 NW 878 (1886). As a general matter,
because no terms of repayment were specified in the
contracts, the oral loan agreements could not have been
breached until payment was demanded and the demand
was rebuffed.
Nevertheless, the absence of a specific time for repay-
ment does not allow a creditor to withhold this demand for
an indefinite period of time. In the absence of an agree-
ment to the contrary, we presume that the parties in-
tended plaintiff’s demand for repayment to occur within a
reasonable amount of time. See Duke v Miller, 355 Mich
540, 542-543; 94 NW2d 819 (1959) (“[W]hen a contract is
silent as to time of performance or payment, absent any
expression of a contrary intent, the law will presume a
reasonable time.”); Pierson v Davidson, 252 Mich 319,
324; 233 NW 329 (1930) (“It is a general rule of law that
where no time is stipulated, a reasonable time will be
presumed. Reasonable time depends upon the facts and
circumstances of each case.”).
1
Determining what consti-
tutes a reasonable amount of time to request repayment
of a loan is necessarily a factual question properly
decided by the jury.
Ultimately, a breach is the sine qua non of any contract
dispute regarding repayment. Justices M
ARKMAN
and
C
AVANAGH
provide alternative theories of when a breach
1
Although Justice C
AVANAGH
criticizes my citation of Pierson,this
proposition is a well-established tenet of Michigan’s contract law. Indeed,
Smith v Smith Estate, 91 Mich 7; 51 NW 694 (1892), which Justice
C
AVANAGH
applies to the instant case, established the very principle he
criticizes in this opinion. Smith explained that a demand for payment
“should, upon principle and the best authority, have been made within a
reasonable time....”Id. at 11.
2009] J
ACKSON V
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REEN
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PINION BY
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OUNG
,J.
occurs if the parties failed to supply a repayment term.
Justice M
ARKMAN
determines that a breach occurs
immediately on payment of the loan principal. Justice
C
AVANAGH
determines that a breach occurs exactly six
years after payment of the loan principal. Neither
theory comports with the practice of parties, espe-
cially in a case like this, which involved a series of
loans made over a period of eight years.
Justice M
ARKMAN
would extend the rule articulated in
Palmer v Palmer, 36 Mich 487 (1877). In Palmer, this
Court held that “a note payable on demand is payable at
once and without demand, so that the statute runs from
its delivery.” Id. at 491. The central rationale of the
Palmer rule was to prevent a creditor from keeping a debt
alive by declining to make a demand until evidence grew
stale, thereby defeating the statute of limitations. “If a
creditor has the means at all times of making his cause of
action perfect, it would be unjust and oppressive to hold
that he could postpone indefinitely the time for enforcing
his claim by failing to present it.” Id. at 494.
2
Palmer and its progeny thus recognized an implied
demand for repayment of written demand notes. This
Court has not applied the Palmer holding to oral loan
agreements. I can discern no reason to extend what is
essentially a legal fiction—that a breach occurs imme-
diately upon the making of a loan even though no actual
demand was made—to oral loan agreements.
I believe that the principle of law articulated in
Palmer, which presumes a demand for repayment—and
2
See also Citizens’ Savings Bank v Vaughan, 115 Mich 156, 159; 73 NW
143 (1897) (“[T]he universal rule is that [a demand] note is due at once, and
that no demand is necessary before bringing suit.”); Taylor v Rugenstein,
245 Mich 152, 154; 222 NW 107 (1928) (“The general rule is that suit may
be brought on a demand note immediately after delivery, and therefore the
statute of limitations begins to run from the day of delivery.”).
218 484 M
ICH
209 [July
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PINION BY
Y
OUNG
,J.
therefore a breach—immediately upon payment of the
loan principal, is illogical and entirely inconsistent with
contracting parties’ intent. I suspect that no one mak-
ing or receiving a loan believes that the recipient is
automatically in breach of the loan as soon as the
principal is paid. However, this is the “logic” of the
Palmer rule. For this reason, I would not extend Palmer
beyond its facts.
Justice C
AVANAGH
would extend the mechanical rule
established in Smith v Smith Estate, 91 Mich 7; 51 NW
694 (1892), to bar recovery on any loan made more than
12 years before the plaintiff filed her complaint. Smith
concluded that, when no express demand for payment
has been made, “a demand should be presumed at the
expiration of the time when an ordinary money claim
would be barred by the statute [of limitations],” id.at
11, that is, six years. A breach would then automatically
occur after six years, and the creditor would then have
an additional six years to bring a cause of action for
payment. In this respect, Smith suffers from the same
wooden approach as Palmer in determining when a
breach of a contract occurs if the parties have not
supplied a term for repayment. Why, given all the
variables in a contractual relationship, is six years
ineluctably a “reasonable” time in which to make a
demand? In this very case, the lender continued to
make a series of new loans—a fact that would seem to
undermine either the Palmer “breach on payment of
the loan” or the Smith “six years equals a breach”
theory.
Smith is distinguishable from the instant case be-
cause it involved not a monetary loan, but a sale of logs.
“[W]e have no doubt that the transaction was a
sale....” Id. Although the Smith Court would have
applied this rule to loans, see id. at 12, that discussion
2009] J
ACKSON V
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REEN
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OUNG
,J.
was dictum. I would not extend this strict rule to the
context of a loan, as the rule fails to take into account
the particular circumstances of a given loan. Instead, I
would leave the question whether a plaintiff waited an
unreasonable amount of time before demanding repay-
ment to the wisdom of a jury.
Plaintiff here did not demand repayment until filing
this action. In the absence of a demand for repayment,
defendant could not have breached the loan agreements
until a reasonable time in which to have made a demand
had elapsed.
3
Any breach of contract claim would need
to have been filed within six years of that time because
the limitations period would not have begun to run
until that time. I agree with the Court of Appeals that
“it was not error for the [circuit] court to determine
that the nature of the disbursements, and consequently
whether plaintiff’s claims regarding the alleged loans
were barred by the applicable statute of limitations, was
a question of fact that was properly decided by a jury.”
In conclusion, I would hold that the statute of limi-
tations did not bar plaintiff’s breach of contract claim
because plaintiff did not make a demand for repayment
until she filed this lawsuit and no breach of contract
could have occurred unless and until a demand was
made and refused or a reasonable amount of time had
elapsed without a demand. I agree with the Court of
Appeals that the finder of fact properly decided this
case.
3
Under the rule established in Brion v Kennedy, 47 Mich 499; 11 NW
288 (1882), if no demand for repayment is made before the filing of the
complaint, the filing of the complaint is considered to be the demand. The
central inquiry in this type of case is whether the plaintiff’s demand for
repayment occurred within a reasonable period following the loan or
whether that reasonable period elapsed—and therefore the period of
limitations began to run—before the express demand for repayment.
220 484 M
ICH
209 [July
O
PINION BY
Y
OUNG
,J.
C
ORRIGAN
, J., concurred with Y
OUNG
,J.
M
ARKMAN
, J. I agree with Justice C
ORRIGAN
’s opinion,
which would affirm the Court of Appeals on the parti-
tion issue. I agree that title vested in the surviving joint
tenant on the decedent’s death because the mere filing
of a partition action does not sever a joint tenancy when
no order granting partition was entered before the
death. However, I would reverse the judgment of the
Court of Appeals on the statute of limitations issue. I
disagree that the statute of limitations does not bar
recovery on any of the loans. Instead, I would hold that
the statute of limitations bars recovery on all but the
last loan made because it is the only one to fall within
the six-year limitations period. MCL 600.5807(8).
Plaintiff filed this action, claiming that she gave
defendant’s decedent a series of checks as loans totaling
more than $50,000, for which the parties did not have
written contracts. Rather, defendant’s decedent alleg-
edly asked to borrow money at various times over a
period of years. Defendant moved for summary dispo-
sition, arguing that the statute of limitations barred the
claim, and the trial court denied the motion. A jury
found that all the checks were loans, all but one of
which had not been repaid. The Court of Appeals
upheld the denial of summary disposition on the statute
of limitations issue, Jackson v Green Estate, unpub-
lished opinion per curiam, issued April 1, 2008 (Docket
No. 269244),
1
and this Court granted leave to appeal,
482 Mich 981 (2008).
I would hold that the period of limitations expired for
all but the last loan. The Court of Appeals correctly
observed that if no time is set for the repayment of
1
Decedent died while the appeal was pending. His estate was substi-
tuted as the defendant.
2009] J
ACKSON V
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REEN
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STATE
221
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PINION BY
M
ARKMAN
,J.
borrowed money, the loan is impliedly payable on de-
mand. See Colburn v First Baptist Church & Society of
Monroe, 60 Mich 198; 26 NW 878 (1886).
2
But when
does the period of limitations begin to run on a loan that
is payable on demand? Does it begin running when the
loan is made, when payment is demanded, or at some
other time? This Court answered that question in
Palmer v Palmer, 36 Mich 487, 491 (1877):
It is now well settled that a note payable on demand is
payable at once and without demand, so that the statute
runs from its delivery. And this rule has been applied where
from the form of the contract it is manifest that immediate
payment was not expected.
Palmer proceeded to explain the rationale for this rule:
For if the debt did not become payable until fixed by
demand, and the demand was optional with the creditor, no
tender could be made which would bind him, and he could
keep the debt alive in spite of the debtor, for an indefinite
period. If there was any infirmity in the consideration, or
2
Justice Y
OUNG
’s “reasonable time” approach is inconsistent with
Colburn, 60 Mich at 200, because Colburn held that a loan made with no
fixed time for repayment is payable on demand. That is, such a loan is
“impliedly payable on demand,” id., not after some “reasonable time.”
Moreover, his reliance on Pierson v Davidson, 252 Mich 319, 324; 233 NW
329 (1930), for the proposition that “where no time is stipulated, a
reasonable time will be presumed,” is misplaced because this language
was clearly dictum, since Pierson immediately thereafter held, “However,
it does not even become necessary for us to determine what was the
reasonable time, for the parties themselves stipulated that the title
should be cleared by February 1, 1929....”Ibelieve his reliance on Duke
v Miller, 355 Mich 540; 94 NW2d 819 (1959), is also misplaced because,
unlike the instant case, Duke did not involve when a period of limitations
begins to run; instead, it only addressed whether a memorandum that
does not specify the time for payment is sufficient under the statute of
frauds as evidence of an agreement to sell land. Incidentally, I am also
perplexed by Justice C
AVANAGH
’s position because, although he criticizes
Justice Y
OUNG
at length for adopting the “reasonable time” approach,
post at 237-239, he then appears to adopt it himself, post at 244-245.
222 484 M
ICH
209 [July
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PINION BY
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ARKMAN
,J.
any defect in the binding character of the obligation, he
might retain it until all testimony was lost, and defeat the
defense. This is the mischief which the statutes of limita-
tion were intended to remedy....
***
We cannot but think this to be sound doctrine; whatever
may have been the ancient prejudice against statutes of
limitation they are now regarded as just and entitled to be
fairly construed. If a creditor has the means at all times of
making his cause of action perfect, it would be unjust and
oppressive to hold that he could postpone indefinitely the
time for enforcing his claim by failing to present it. He is
really and in fact able at any time to bring an action, when
he can by his own act fix the time of payment. It is no
stretch of language to hold that a cause of action accrues
for the purpose of setting the statute in motion as soon as
the creditor by his own act, and in spite of the debtor, can
make the demand payable. It may be otherwise, possibly,
where delay is contemplated by the express terms of the
contract, and where a speedy demand would manifestly
violate its intent.
[
3
]
But where no delay is contemplated the
3
In Smith v Smith Estate, 91 Mich 7, 9; 51 NW 694 (1892), the decision
on which Justice C
AVANAGH
primarily relies to conclude that the period of
limitations did not begin to run until six years after the loans were made,
delay was contemplated by the express terms of the contract, i.e., “when
Armstrong came to him to request a loan of the logs to Eugene, Abram
said to him, in substance, that he might have them, as he had more than
he needed at that time, but they must be returned to him when he
demanded them”; “it was contemplated between the parties that logs of
like kind and quality should be returned as soon as Eugene’s logs...
came down the stream and into the St. Clair river.” By contrast, the
express terms of the instant contracts no more contemplated delay than
did the express terms of the contract in Palmer. Given that Justice
C
AVANAGH
concedes that the only “express term” of the instant contracts
is that “defendant asked to borrow money from plaintiff,” post at 240, I
am not quite sure why he disagrees with my conclusion that the express
terms of the contracts did not contemplate delay any more than the
Palmer contract. He appears to suggest that the fact that “there were no
‘express terms’ of the contracts that contemplated immediate payment,”
2009] J
ACKSON V
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REEN
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PINION BY
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ARKMAN
,J.
post at 244, is the equivalent of meaning that the express terms
contemplated delay. However, the express terms in these contracts simply
did not address whether delay was or was not contemplated, because, as
Justice C
AVANAGH
earlier explained, the only express term of the contracts
was that defendant “borrow[ed]” money from plaintiff. Post at 240. In
addition, it is noteworthy that, although Justice C
AVANAGH
criticizes
Justice Y
OUNG
for relegating to a jury the determination whether claims
are barred by the statute of limitations, post at 237-239, he nevertheless
relies on the jury’s alleged conclusion that the parties did “contemplate
delay in repayment,” post at 240 n 11, to conclude that the period of
limitations did not begin to run immediately. Would Justice C
AVANAGH
leave the statute of limitations issue up to the jury or not? Contrary to
Justice C
AVANAGH
’s contention, post at 240 n 11, the mere fact that the
jury concluded that “repayment is now owed” does not necessarily mean
that the jury either concluded that repayment was not owed as soon as
the money was borrowed or that the parties did “contemplate delay in
repayment.” Further, Smith limited its holding to cases in which “a
demand is necessary,” 91 Mich at 12, and, as discussed earlier, a demand
was not necessary in this case, Palmer, 36 Mich at 491 (stating that “a
note payable on demand is payable at once and without demand”)
(emphasis added). For these reasons, I believe that Palmer, rather than
Smith, is controlling in this case.
Moreover, extending Smith to the instant circumstances would
anomalously provide those parties who never make a timely demand with
a longer period in which to bring an action than those parties who do
make a timely demand. Justice C
AVANAGH
claims that we “simply disagree
on when accrual should occur.” Post at 242. Although this is correct, the
accrual date makes all the difference. Under Justice C
AVANAGH
’s position,
if a demand is made immediately after the loan is made, the claim will
accrue immediately and the period of limitations will expire in 6 years
from the date of the loan; however, if no demand is ever made, the claim
will not accrue until 6 years have passed, and the period of limitations
will not expire until 12 years after the loan was made. How can this be
characterized as anything but an anomalous result? Justice C
AVANAGH
asserts that he is “perplexed” about why I believe this to be an anomalous
result. Post at 242 n 13. I believe this to be so because, under Justice
C
AVANAGH
’s approach, the plaintiff has complete control over when his
action accrues, and thus when the period of limitations begins to run.
What concerns me is not the fact alone that the plaintiff would get more
time; rather, it is that the plaintiff would get to choose exactly how much
time he would have to bring an action. If the plaintiff wanted to file his
action immediately, he could do so; if, on the other hand, he wanted to
wait 10 or 11 or 12 years, he could do that as well. Contrary to Justice
224 484 M
ICH
209 [July
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PINION BY
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ARKMAN
,J.
rule is just and reasonable; and the presentment should be
reasonably prompt, or the creditor should be subjected to
the operation of the statute. [Id. at 491, 494.]
Palmer was followed in later cases. See, e.g., Beardsley
v Webber, 104 Mich 88, 89; 62 NW 173 (1895) (“No
demand is necessary on a demand note . . . .”); Citizens’
Savings Bank v Vaughan, 115 Mich 156, 159; 73 NW
143 (1897) (“[T]he universal rule is that [a demand]
note is due at once, and that no demand is necessary
before bringing suit.”); Peninsular Savings Bank v
Hosie, 112 Mich 351, 355; 70 NW 890 (1897) (“ ‘If the
instrument be payable on demand, the statute begins to
run immediately.’ ”) (citation omitted); Taylor v Rugen-
stein, 245 Mich 152, 154; 222 NW 107 (1928) (“The
general rule is that suit may be brought on a demand
note immediately after delivery, and therefore the stat-
ute of limitations begins to run from the day of deliv-
ery.”).
In light of these authorities, the Court of Appeals
erred, in my judgment, when it stated that “the
statute of limitations would not begin to run on such
a claim until a demand for repayment was made....”
Jackson, unpub op at 5.
4
Palmer and its progeny estab-
lished that the period of limitations begins to run
C
AVANAGH
’s contention, post at 242 n 13, Colburn provides the plaintiff
with such unfettered authority only if one ignores Palmer, which held
that because no demand is necessary, the period of limitations begins to
run immediately. Thus, my “consternation” is not caused by Colburn, but
by Justice C
AVANAGH
’s disregard of Palmer. Post at 242 n 13. Finally,
contrary to Justice C
AVANAGH
’s contention, my “insistence... that ac-
crual must occur at the loan’s inception” is not “contrary to the general
rule,” post at 242; rather, it is, in fact, in accord with the general rule both
in Michigan, see Palmer, and in a vast majority of other jurisdictions, see
n5ofthisopinion.
4
Likewise, Justice Y
OUNG
errs by reaching the same conclusion because
Palmer specifically rejected this. In Palmer, this Court explained:
2009] J
ACKSON V
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225
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ARKMAN
,J.
from the day that a demand note is delivered, unless a
contrary intention is apparent. While those cases ad-
dressed written demand notes, there is no apparent
reason why Palmer should not equally apply to an oral
contract.
5
In fact, the policies underlying statutes of
limitations are implicated even more strongly in the
The [lower] court found that the suit was not barred. This
conclusion was based on the theory that until demand [was] made
no action accrued; and that as the time limited by the statute runs
from the time when action accrues, it did not begin to run until
thirty days after [the demand was made].” [Palmer,36Michat
490.]
Palmer, however, rejected this analysis, reversed the lower court’s
judgment, and held that the period of limitations began running imme-
diately upon delivery. In addition, Justice Y
OUNG
’s conclusion that there
is no breach, and thus that the action does not accrue until a demand has
been made, is inconsistent with the undisputed fact that, once money is
borrowed, an action seeking repayment can be brought at any time.
Because an action cannot be brought until it has accrued, it necessarily
follows that once money is borrowed, the action accrues immediately and,
thus, the period of limitations begins to run immediately. For this reason,
I disagree with Justice Y
OUNG
that the Palmer rule is “illogical” and
“inconsistent with contracting parties’ intent.” Ante at 218-219.
5
Indeed, the majority of other jurisdictions have held that the period of
limitations begins to run from the date the borrowed money is given to
the borrower under an unwritten or verbal agreement to repay. See
Anno: When statute of limitations begins to run against action based on
unwritten promise to pay money where there is no condition or definite
time for repayment, 14 ALR4th 1385, 1388 (“Reasoning that oral loans
without any due date or provision for repayment occupy the same legal
status as obligations due on demand, the court said that the statute of
limitations period begins to run against suits based on demand obliga-
tions, and consequently against suits based on loans without repayment
provisions, from the time the obligations or loan agreements are entered
into by the parties.”), citing Gentry v Gentry, 59 NM 395; 285 P2d 503
(1955). Justice C
AVANAGH
would reach another anomalous result in which,
although the period of limitations would start running under Palmer
immediately with regard to written contracts, the period of limitations
would not start running with regard to oral contracts until either a
demand was made or six years had elapsed. That is, according to Justice
C
AVANAGH
, the period of limitations should be longer for oral contracts
226 484 M
ICH
209 [July
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PINION BY
M
ARKMAN
,J.
latter circumstances because it is more difficult to
produce evidence to defend against a stale claim of an
oral agreement.
6
Thus, I would reverse the Court of Appeals on this
issue and hold that all the alleged loans other than the
last one fall outside the period of limitations. That is,
because plaintiff waited more than six years to demand
payment on all the loans but one, all her claims but one
are barred by the statute of limitations.
C
AVANAGH
, J. I disagree with the separate opinions of
Justices C
ORRIGAN
,Y
OUNG
, and M
ARKMAN
. On the parti-
tion issue, I would allow the merits of defendant’s
partition action to be heard because it comes within the
purview of the survival statute. See MCL 600.2921.
Regarding the statute of limitations issue, I find Smith
v Smith Estate, 91 Mich 7; 51 NW 694 (1892), to be
controlling, and I would apply its rule here to hold that
than for written contracts, despite the fact that it is often considerably
more difficult to establish the terms of an oral contract, as demonstrated
by this very case.
6
Unlike Justice Y
OUNG
, I would not leave it to a jury to determine when
a “reasonable” time to make a demand has elapsed. I cannot think of a
procedure more likely to undermine one of the principal purposes of a
statute of limitations, namely, to establish at least some modicum of
certainty with respect to the period within which a lawsuit can be
brought in response to allegedly wrongful conduct. Not only is Justice
Y
OUNG
’s rule inconsistent with Palmer, 36 Mich at 491, and Colburn,60
Mich at 200, as discussed earlier, I do not believe that he has demon-
strated why stare decisis should not be followed with regard to these
decisions, which have adequately served this state for well over a century.
See Robinson v Detroit, 462 Mich 439, 466; 613 NW2d 307 (2000)
(observing that before reversing a precedent, “the Court must ask [ inter
alia] whether the previous decision has become so embedded, so accepted,
so fundamental, to everyone’s expectations that to change it would
produce...practical real-world dislocations”). In particular, with regard
to this Court’s development of the common law, at least some compelling
argument must be offered in support of altering the law, and I have heard
no such argument raised here by either party.
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all the claims were timely made except those that
related to the first two loans. Accordingly, I would
reverse the judgment of the Court of Appeals on both
issues.
I. PARTITION
In Michigan, there are two forms of joint tenancies.
Albro v Allen, 434 Mich 271, 274; 454 NW2d 85 (1990).
The first is the standard form in which, upon the death
of a joint tenant, the entire estate transfers to the
surviving joint tenant or tenants. Id. at 274-275. In the
standard joint tenancy, one joint tenant can unilaterally
destroy the right of survivorship by severing the joint
tenancy. Id. One way to sever the joint tenancy is a
partition action. Smith v Smith, 290 Mich 143, 155; 287
NW 411 (1939), quoting Midgley v Walker, 101 Mich
583, 584; 60 NW 296 (1894).
The second form of joint tenancy is one that has
“express words of survivorship in the granting instru-
ment in addition to those creating a joint tenancy, such
as... ‘with full rights of survivorship.’ ” Albro, 434
Mich at 275 (citation omitted). In contrast to the
standard joint tenancy, it is well settled in Michigan
that the survivorship quality of this type of joint ten-
ancy cannot be unilaterally severed by the act of one
cotenant. Id. at 275-276. Thus, the survivorship right of
this type of joint tenancy is indestructible and is not
affected by a partition action.
The deeds in this case created both forms of joint
tenancies. The September 1991 deed created the sec-
ond, indestructible variety; thus, the defendant’s parti-
tion action had no effect on the joint tenancy’s survi-
vorship quality, and the land automatically transferred
to plaintiff upon defendant’s death. The May 1991 deed,
however, created a standard joint tenancy, which there-
228 484 M
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fore could be affected by a partition action. Thus, the
issue in this case is what effect defendant’s death had
on his pending partition action regarding the property
covered by the May 1991 deed.
This Court’s pronouncements regarding the absolute
right of a cotenant to partition, coupled with the plain
language of Michigan’s survival statute, MCL 600.2921,
demand that defendant’s death not abate his partition
action. Partition actions are governed by two sections of
the Revised Judicature Act: MCL 600.3304 and MCL
600.3308. MCL 600.3304 states that “[a]ll persons hold-
ing lands as joint tenants... may have those lands
partitioned.” In addition, MCL 600.3308 states that
“[a]ny person who has an estate in possession in the
lands of which partition is sought may maintain a claim
for partition of those lands....”This Court has made
strong statements about facially valid partition actions
and the right of a joint tenant to compel partition in a
standard joint tenancy: “The right of a cotenant to
partition is absolute, not a mere matter of grace, within
the discretion of the court, regardless of the motives of
the parties entitled to partition.” Henkel v Henkel, 282
Mich 473, 482; 276 NW 522 (1937) (quotation marks
and citations omitted; emphasis added). Moreover, par-
tition is mandatory “unless there is some paramount or
controlling equity which warrants the court in refusing
toact....”Id.
When interpreting a statute, the primary goal is to
give effect to the intent of the Legislature. Franken-
muth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511,
515; 573 NW2d 611 (1998). When the language of the
“statute is clear and unambiguous, judicial construction
is precluded.” Id. (quotation marks and citation omit-
ted).
Michigan’s survival statute provides:
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All actions and claims survive death. Actions on claims for
injuries which result in death shall not be prosecuted after
the death of the injured person except pursuant to the next
section. If an action is pending at the time of death the claims
may be amended to bring it under the next section. A failure
to so amend will amount to a waiver of the claim for
additional damages resulting from death. [MCL 600.2921
(emphasis added).]
The plain language of the statute is clear and unambigu-
ous and therefore in need of no interpretation—all actions
survive a claimant’s death.
Not only is this interpretation consistent with the plain
language of the statute, it is also consistent with the
legislative history of the statute. This Court examined the
lengthy history of the survival statute in Hardy v Max-
heimer, 429 Mich 422; 416 NW2d 299 (1987). “ ‘Early in
its history, Michigan adopted a rather liberal “survival
act” to preserve causes of action which, under common
law, were terminated by the death either of the person
injured or the tortfeasor.’ ” Id. at 436, quoting Hawkins v
Regional Med Laboratories, PC, 415 Mich 420, 428-429;
329 NW2d 729 (1982). The statute was later amended to
“expand[] the number of causes of action which survived
a claimant’s death,” but “in [the Revised Judicature Act],
the Legislature abandoned its restrictive ‘laundry list’
approach to the survival act” and amended it to its present
form. Hardy, 429 Mich at 437. This Court then empha-
sized that the bill analysis accompanying the act clearly
showed the Legislature’s intent. Id. The relevant portions
quoted were as follows:
“This section drastically changes the present law ....At
common law, personal rights of action died with the person.
This seemed manifestly unfair in certain cases, so Survival
Acts were written to allow certain actions to survive. There is
no good reason for allowing some actions to survive, and not
others, apart from cultural inertia....
***
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“This section is a logical advance in the legislation in
this area. That it has not been made earlier may be due to
the unfortunate approach of the statutes in listing those
actions which do survive, and thus overlooking those which
the statute failed to cover. This section has the added
advantage of simplicity in application.” [Id. at 437-438.]
While the survival statute is commonly applied to
tort actions, the history of and comments on the statute
clearly illustrate the Legislature’s intent to make all
claims immune from attacks based on a claimant’s
death. The statute clearly abrogates the harsh common-
law rule that pending actions die with the death of a
party.
1
In fact, after reviewing the history of and com-
ments on the statute in Hardy, this Court described the
language of the statute as “sweeping and unambigu-
ous” and declared that the statute is “universally appli-
cable to all actions and claims which arise under the
Revised Judicature Act.” Id. at 438. A partition action is
one of the actions included in the Revised Judicature
Act. Given the survival statute’s unqualified language
and this Court’s prior examination of the statute, I
would hold that because defendant was alive when he
filed his action for partition, the action survives and
should be heard on its merits. To hold otherwise would
frustrate the clear intent of the Legislature and would
be inconsistent with this Court’s prior declarations
regarding the applicability of the survival statute to
actions arising under the Revised Judicature Act.
2
1
In Michigan, the common law governs unless it has been abrogated by
statute. Albro, 434 Mich at 286 n 6, citing Myers v Genesee Co Auditor,
375 Mich 1; 133 NW2d 190 (1965), and Bugbee v Fowle, 277 Mich 485,
492; 269 NW 570 (1936).
2
Justice C
ORRIGAN
’s opinion cites a section from the American Law
Reports Annotated 2d to support its position that a judgment granting
partition must be entered before a joint tenant’s death in order to sever
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Moreover, partition actions are equitable in nature.
MCL 600.3301. Thus, this Court has broader authority
to inject fairness and render a fair judgment. Brown v
Fletcher’s Estate, 146 Mich 401, 417-420; 109 NW 686
(1906) (acknowledging a softening of the common-law
rule of abatement for a deceased party’s claim when the
claim is based in equity). In this case, notions of equity
strongly support allowing the merits of defendant’s
partition action to be heard. After defendant filed an
action for partition, his case sat idle for more than a
year while plaintiff appealed the trial court’s earlier
ruling regarding the validity of the deeds. Eventually,
the Court of Appeals summarily and correctly affirmed
the validity of the deeds. Nonetheless, the Court of
Appeals, without citing any supporting authority, held
that because defendant had died before an order of
partition was entered, his claim was moot. Given the
validity of the May 1991 deed and defendant’s absolute
right to partition, I would allow defendant’s action to
continue. But for plaintiff’s lengthy, unmeritorious, and
collateral appeal and defendant’s untimely death, the
merits of defendant’s claim would certainly have been
heard. To hold otherwise would not only ignore notions
of equity and this Court’s pronouncements that the
right to partition is absolute, but would also frustrate
our Legislature’s intent to make claims that arise under
the Revised Judicature Act immune from attacks based
on a claimant’s subsequent death. See Hardy, 429 Mich
at 436-438.
3
the joint tenancy. Ante at 214. The quotation used by her opinion,
however, cites California law and therefore ignores the effect that
Michigan’s survival statute has on actions that arise under the Revised
Judicature Act, such as the partition action here.
3
Justice C
ORRIGAN
’s opinion ignores both the language of and this
Court’s pronouncements regarding Michigan’s survival statute. It merely
points to a “universal rule” that was pronounced by a Missouri court to
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II. STATUTE OF LIMITATIONS
“[T]he period of limitations runs from the time the
claim accrues,” which occurs “at the time the wrong
upon which the claim is based was done ....” MCL
600.5827.
4
In contract claims, the time of the wrong is
the moment that the contract is breached. AFSCME v
Highland Park Bd of Ed, 457 Mich 74, 90; 577 NW2d 79
(1998) (opinion by C
AVANAGH
, J.). This case involves oral
loans with no terms expressing a time for repayment.
Repayment of this type of loan is due upon a demand.
Colburn v First Baptist Church & Society of Monroe,60
Mich 198, 200; 26 NW 878 (1886). Hence, a claim for
nonpayment of such a loan accrues when a demand for
repayment is made. However, this Court has held that
accrual cannot be left to the whim of the lender because,
if it were, the lender could wait in near perpetuity until
demanding payment, which would contravene the ven-
erable aims of statutes of limitations. Indeed, in Smith
Estate, 91 Mich at 11, this Court held that if a demand
is necessary for accrual of the claim, it should be made
within a reasonable time, and if the demand is not made
within a reasonable time, then accrual occurs and the
period of limitations begins to run at the end of the
period that would have been a reasonable time in which
to make the demand.
explain why defendant’s interest in the land did not survive his death.
Ante at 214. I query why her opinion cites a Missouri case for its
“universal rule,” yet fails to cite a single case from this Court.
Certainly, the Missouri court was not considering the effect of Michi-
gan’s survival statute when analyzing the partition claim before it. It
belies logic and the intent of our Legislature to interpret the survival
statute as allowing a deceased claimant’s claim to survive under
Michigan’s survival statute, yet terminate the action on the basis of
the claimant’s death.
4
The period of limitations for a contract claim is six years from the
accrual date. MCL 600.5807(8).
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In Smith Estate, the plaintiff sued to enforce a claim
for the value of logs that were loaned to the defendant
after the defendant failed to either return the logs or
pay the plaintiff their value. Id. at 8-11. The Court,
after reviewing testimony regarding the terms of the
oral contract, held that the transaction was a sale and
the claim was barred by the statute of limitations
because the plaintiff failed to bring suit within six years
after a reasonable time to demand payment had passed.
Id. at 11-12.
5
The Court held that if a plaintiff failed to
make a demand for repayment within a reasonable
time, we should presume that a demand was made at
the expiration of the reasonable time to begin the
running of the period of limitations. The Court defined
a reasonable time as equivalent to the six-year period of
limitations for an ordinary money claim, thus giving a
party six years to make a demand and six years to bring
suit after having made the demand. Id. The Court
adopted this rule from Keithler v Foster, 22 Ohio St 27
(1871). Smith Estate, 91 Mich at 12.
6
Moreover, the
Court reasoned that its rule was driven by the purpose of
the statute of limitations: “The object of the statute of
limitations is a beneficial one; and it is a salutary protec-
tion against fraudulent and stale claims, which without it
might purposely be postponed for enforcement until the
lapse of time had destroyed the proofs of their falsity.” Id.
at 11.
5
The facts of the contractual relationship in Smith Estate are very similar
to those in the instant contractual relationship. In both cases, the parties
orally agreed that one party would loan personal property to the other party.
In both cases, the party loaning the property kept a ledger or list of the
separate loans made throughout a period of years. In both cases, neither
party expressly contemplated when the loans would be due for repayment.
6
See Keithler, 22 Ohio St at 32 (stating that “where no demand is
shown to have been made within the statutory period for bringing the
action,...forthepurposeofsetting the statute in operation, a demand
will be presumed at the expiration of that period, from which time the
statute will begin to run”).
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In essence, Smith Estate gives a plaintiff 12 years to
bring a contract action on an oral loan that specified no
time for repayment. The plaintiff has a reasonable time
in which to make a demand, which Smith Estate held is
six years as a matter of law. If no demand is made
within six years, then the court will “presume” that a
demand was made for the purposes of the statute of
limitations.
7
Then, under the statute of limitations, the
plaintiff has six years from the date of this presumed
demand to bring a claim.
8
In this case, consistently with the rule of Smith
Estate, I would hold that the July 1991 and September
1992 oral loans between plaintiff and defendant are
barred by the statute of limitations. Because plaintiff
failed to make a demand for repayment within a rea-
sonable time, I would presume that a demand was made
at the expiration of the reasonable time and thus
measure the period of limitations from the date of the
presumed demand. There were 11 oral loans, which
were made between July 1991 and February 1999.
Plaintiff made no demand for payment until she filed
her complaint covering all these loans in November
2004. Thus, for any loan made more than 12 years
7
Intuitively, if an actual demand occurred before the presumed de-
mand, accrual would occur at the time of the actual demand.
8
Smith Estate held that
[t]his rule gives the party six years in which to make his demand,
and six years in which to commence his suit after demand, in all
cases where a demand is necessary before suit. See Keithler v.
Foster, 22 Ohio St. 27 [1871]; Massie v. Byrd, 87 Ala. 672 (6 South.
Rep. 145) [1889]; Thrall v. Mead’s Estate, 40 Vt. 540 [1868];
Codman v. Rogers, 10 Pick. 119 [27 Mass 112 (1830)]; Mitchell v.
McLemore, 9 Tex. 151 [1852]; Eborn v. Zimpelman, 47 [Tex] 503
[1877]; Morrison’s Adm’r v. Mullin, 34 [Pa] 12 [1859]; Ball v.
[Keokuk&NWR] Co., 62 Iowa, 751 (16 N. W. Rep. 592) [1883];
Lower v. Miller, 66 [Iowa] 408 (23 N. W. Rep. 897) [1885]; Ang.
Lim. § 96; Bus.Lim. § 159. [Smith Estate, 91 Mich at 11-12.]
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earlier, i.e., before November 1992, plaintiff’s claim
would be untimely.
9
Plaintiff’s claims included two such
loans, which originated in July 1991 and September
1992. Thus, her claims on those loans were barred by
the statute of limitations in July 2003 and September
2004. In contrast, the claims relating to the remaining
nine loans, which were made between March 1994 and
February 1999, were timely under the November 2004
complaint.
10
9
This is because the latest reasonable time for plaintiff to make a
demand on an oral loan made in November 1992 would be six years
later—November 1998. And each of the claims on the pre-November
1992 loans would be time-barred because plaintiff filed her complaint
covering all the loans in November 2004.
10
Justice Y
OUNG
contends that Smith Estate is distinguishable and, as
a result, I am incorrectly extending that case by applying it here. Smith
Estate dealt with the claim that the trial court wrongly precluded a
certain witness’s testimony. Smith Estate, 91 Mich at 8-9. That testimony
would have been used to support the plaintiff’s claim that the contract
was a loan, rather than a sale. Id.at9.ItistruethatSmith Estate
concluded that the contract at issue was one for a sale, rather than a loan.
But the Court went on to clearly explain that, if the testimony had been
wrongly rejected, and if the contract was a loan, the error would have
been harmless because the plaintiff’s claim would have been untimely
under the presumed-demand rule. Id. at 11-13. In fact, the unanimous
Smith Estate Court expressly adopted the rule from the Ohio decision
Keithler v Foster for the exact issue that is presented in the instant case.
Id. at 12. The Keithler court clearly noted that
the statute [of limitations] begins to run, in cases like this, from
the time of demand, [and] it would be but reasonable to hold, in
the absence of other special circumstances, where no demand is
shown to have been made within the statutory period for bringing
the action, that, for the purpose of setting the statute in operation,
a demand will be presumed at the expiration of that period, from
which time the statute will begin to run. [Keithler,22OhioStat
31-32.]
Thus, Smith Estate held that if the testimony had been admitted, and
the contract had been seen as an oral loan with no specified time for
repayment, this rule would apply. Thus, I find Smith Estate to be directly
on point and persuasive. Further, to the extent that this portion of Smith
236 484 M
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As noted, I agree with Justice Y
OUNG
’s statement
that “the absence of a specific time for repayment does
not allow a creditor to withhold this demand for an
indefinite period of time.” Ante at 217. However, I do
not agree with the construct that Justice Y
OUNG
devel-
ops to address this concern. He institutes a rule that
allows the jury to decide when a presumed demand
should occur, which is set at what the jury determines to
be a reasonable time. Justice Y
OUNG
bases this con-
struct on the idea “that the parties intended plaintiff’s
demand for repayment to occur within a reasonable
amount of time.” Ante at 217. I decline to accept this
construct for several reasons.
First, there is little precedential support for this
construct. Justice Y
OUNG
relies on Pierson v Davidson,
252 Mich 319; 233 NW 329 (1930), to support his
construct. But Pierson is both factually and legally
distinguishable from the present case. Factually, Pier-
son involved a written oil and gas lease agreement. Id.
at 320-321. Thus, unlike the present case, Pierson did
not deal with an oral loan. And legally, Pierson dealt
with the contractual requirement that the lessor clear a
cloud on the title to the real property or the lease would
“ ‘be voided and extinguished, and shall become null
and void ....’”Id. at 321. Pierson did not deal with the
question of when payment on an oral promise to repay,
which hinges on a demand, was due. In contrast, Smith
Estate dealt with this Court’s unanimous statement
that, in the case of an oral loan with no time set for
repayment, a demand is to be presumed six years from
the loan’s inception and accrual occurs at that time. In
light of Justice Y
OUNG
’s refusal to rely on Smith Estate
Estate was dictum, I would adopt it as the controlling rule on this issue,
which is exactly what our colleagues in Smith Estate unanimously said
that they would do.
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(a case that is factually and legally exactly on point), I
question his reliance on Pierson because that case
seems much less applicable here than Smith Estate.Itis
unclear why Justice Y
OUNG
finds Smith Estate too
dissimilar for application here, while concomitantly
finding the much more distinguishable Pierson case to
be controlling.
Second, I believe that Justice Y
OUNG
’s construct
overly diminishes the statute of limitations. Justice
Y
OUNG
puts no restriction on how long a reasonable
amount of time may extend. Instead, he would allow a
reasonable amount of time to go on indefinitely. I think
that this eviscerates the statute of limitations and
undermines its purposes in this context, as Smith
Estate clearly discussed. See Smith Estate, 91 Mich at
11-12. In contrast to Justice Y
OUNG
’s construct, the
Smith Estate construct presents a better balance be-
tween the rationales supporting the statute of limita-
tions and the legal precepts pertaining to oral contracts.
The Smith Estate construct gives definite answers.
Under no circumstances may a plaintiff carry out his
claim more than 12 years past the time of the oral loan
that has no time set for repayment. As noted, this Court
lauded the stability and predictability of this construct
in Smith Estate because it reduces fraud and the
litigation of stale issues. See id. at 11. Justice Y
OUNG
’s
construct does not protect against these problems. The
Smith Estate construct also honors the concepts that an
oral loan is not due until a demand is made and a claim
does not accrue until a demand (presumed or actual)
occurs. In contrast, under Justice Y
OUNG
’s construct, a
plaintiff need only convince a jury that it was reason-
able to delay the demand for payment for any number of
years in order to bring claims on loans that originated,
conceivably, decades in the past.
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Both Justice Y
OUNG
’s construct and the Smith Estate
construct presume a demand at some point after the
oral loan was made. I find the Smith Estate construct’s
method of determining when that presumption occurs
to be more closely tied to the purposes of the limitations
period, while honoring basic contract tenets. Further,
Smith Estate provides the most applicable standard for
the facts and issues in the present case; therefore, I
would apply it in place of Justice Y
OUNG
’s construct.
Under the Smith Estate construct, I would hold that
only the claims on the first two loans (those arising
before 1992) were time-barred.
I note that Justice M
ARKMAN
questions my reliance on
Smith Estate. He argues that the contract in Smith
Estate contemplated a delay in repayment, whereas the
“express terms of the instant contracts” did not con-
template any such delay. Ante at 223 n 3. I respectfully
disagree. I question whether Justice M
ARKMAN
can
opine on the “express terms” of the instant contract
with any specificity, given that the parties litigated the
very existence of any oral contract. Indeed, the trial
court discussed this case’s facts as follows when review-
ing a motion for summary disposition:
The loans—or the distribution of money... is a close
question, but there is some testimony that [Green] made a
request to borrow, which I think impliedly includes a
promise to repay, and while [Jackson] said [in her deposi-
tion] there was no specific agreement or promise to re-
pay . . . , which certainly hurts her case, she did say that
there was a request to borrow and, therefore, that’s what
caused the advance of monies.
So I think that there is a factual question as to whether
these advances were gifts, whether they were, in fact,
loans, as [Jackson] now claims, or whether they were, in
fact, compensation as [Green] claims at least part of the
advances were for.
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Thus, while the jury eventually decided that there were
enforceable oral contracts, I do not believe that the facts
of this case support Justice M
ARKMAN
’s assertion that
the contracts’ express terms did not contemplate a
delay in repayment.
11
The record only supports the fact
that defendant asked to borrow money from plaintiff
and that plaintiff responded by writing numerous
checks. Moreover, the parties’ actions actually indicated
that they did contemplate a delay in repayment because
plaintiff continually made numerous loans to defendant
over a term of years. It strains reason to conclude, as
Justice M
ARKMAN
does, that the parties expected pay-
ment immediately yet, despite never receiving any such
immediate payment, plaintiff continued to make addi-
tional loans over several years.
12
11
In fact, the jury’s own words belie Justice M
ARKMAN
’s contention that
the parties did not contemplate delay in repayment. The jury stated that
the oral loans were due at the time plaintiff’s claim was filed, which was
years after the loans were consummated. The jury answered a special
interrogatory form regarding each loan as follows: “[Plaintiff] estab-
lished...thattherewasanenforceable contract between [plaintiff] and
[defendant], that this check was a loan expected to be repaid and [that]
repayment is now owed to [plaintiff].” The jury did not conclude that
payment was owed upon delivery. Justice M
ARKMAN
disagrees because he
thinks that “the mere fact that the jury concluded that ‘repayment is now
owed’ does not necessarily mean that the jury either concluded that
repayment was not owed as soon as the money was borrowed or that the
parties did ‘contemplate delay in repayment.’ ” Ante at224n3.I
disagree. The jury was tasked to decide whether the claims were timely.
The jury decided that all of plaintiff’s claims were timely and that
payment was “now” due. “Now” could only mean at the time the jury
made its decision because, if “now” also applied to when the loans were
created, many of the claims would have been untimely because they came
into existence more than six years before the claims were filed. Thus, the
jury’s conclusions do not support Justice M
ARKMAN
’s supposition that the
parties did not contemplate delay in payment.
12
I do not point to these possible interpretations of the instant
agreements’ terms to definitively say what the parties intended regard-
ing delay in payment. Justice M
ARKMAN
mistakes my point if that is what
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Justice M
ARKMAN
also argues that Smith Estate lim-
ited its holding to cases in which a demand is necessary.
Assuming that he is correct, I do not see how this
precludes the application of Smith Estate in this case.
As Justice M
ARKMAN
notes, if “no time is set for the
repayment of borrowed money, the loan is impliedly
payable on demand.” Ante at 221-222, citing Colburn.It
is uncontested that this case involves loans that set no
time for repayment of the borrowed money. Hence, I
think Smith Estate applies.
Justice M
ARKMAN
also suggests that applying Smith
Estate here “anomalously provide[s] those parties who
never make a timely demand with a longer period in
which to bring an action than those parties who do
make a timely demand.” Ante at 224 n 3. I disagree that
following Smith Estate’s general rule that a demand is
necessary to trigger accrual causes anomalous results.
Under Smith Estate, the period in which to bring a
he sees as motivating my reference to them. Instead, I simply note that
these facts undercut Justice M
ARKMAN
’s assertion that “the express terms
of the instant contracts no more contemplated delay than did the express
terms of the contract in Palmer [v Palmer, 36 Mich 487 (1877)].” Ante at
223 n 3. This is important because Justice M
ARKMAN
’s position depends on
equating Palmer’s demand note with the instant oral contracts. Thus, I
merely note that Justice M
ARKMAN
’s linking of the two disparate types of
agreements is not supported by their facts. Justice M
ARKMAN
also asks
whether I would leave the statute of limitations issue to the jury. Ante at
224 n 3. He seems to think that my references to this case’s facts and the
jury’s conclusion undercut my adoption of the Smith Estate construct. I
think that this opinion plainly notes that I conclude that, under Smith
Estate, the statute of limitations issue for an oral loan having no specified
time for repayment is a question of law for the court. That conclusion is
not undermined by my pointing out that Justice M
ARKMAN
’s position of
applying Palmer by analogy, which relies on the facts, is not supported by
the facts of this case. Moreover, the “express terms” debate that Justice
M
ARKMAN
and I are engaged in shows how foolhardy undertaking such an
endeavor is for this type of oral loan. Yet that endeavor is required for
Justice M
ARKMAN
to link Palmer to this case, whereas my approach
requires no such legal groping.
2009] J
ACKSON V
G
REEN
E
STATE
241
O
PINION BY
C
AVANAGH
,J.
claim is always six years—after accrual of the claim.
Justice M
ARKMAN
and I simply disagree on when accrual
should occur. His insistence (contrary to the general
rule) that accrual must occur at the loan’s inception is
what causes his perception of anomalous results. Under
Smith Estate, every claimant has six years to bring his
claim after it accrues, which is triggered by a demand or
the presumed demand, whichever happens first. While I
accept that Justice M
ARKMAN
disagrees with this legal
construct, I disagree with his assertion that it causes
anomalous results, especially in light of his counterin-
tuitive position that parties make oral loans to each
other and expect payment immediately.
13
13
Justice M
ARKMAN
accepts that oral loans are impliedly due on demand
and that accrual occurs on that demand. Noting his acceptance of this, I
am perplexed about why Justice M
ARKMAN
finds it anomalous that some
oral loans accrue later than other oral loans. His example shows that he
thinks it is inappropriate that a lender who makes an immediate demand
has less time to bring a claim than a lender who never makes a demand.
Despite Justice M
ARKMAN
’s aversion to it, this dynamic does not contra-
vene the theory that an oral loan is due on demand and accrual occurs at
demand. It seems that Justice M
ARKMAN
’s perception of an anomalous
result is caused by something he already accepts: if “no time is set for the
repayment of borrowed money, the loan is impliedly payable on demand.”
Ante at 221-222, citing Colburn. Indeed, Colburn’s holding necessarily
puts the lender in a position to set when payment is due. Thus, Justice
M
ARKMAN
is correct to note that this rule can conceivably lead to an oral
loan being due in any length of time, as set by the lender. If this is what
concerns Justice M
ARKMAN
,itisColburn that causes his consternation,
not my application of Smith Estate. Nonetheless, I can sympathize with
him because I too sense a conflict between the statute of limitations and
a lender being free to harbor his claim indefinitely by not making a
demand. Yet I do not think that the solution to this concern is to force the
oral-loan square peg into the demand-note round hole. But that is what
Justice M
ARKMAN
does by insisting, against reason, that an oral loan is
legally the same as a “demand note,” which by its mere name indicates a
demand upon delivery. See the discussion later in this opinion. Instead, I
find the Smith Estate construct to be much more applicable here because
it was actually espoused to deal with this very issue. It handles the
concern that Justice M
ARKMAN
and I share because it precludes lenders
242 484 M
ICH
209 [July
O
PINION BY
C
AVANAGH
,J.
Finally, Justice M
ARKMAN
adopts his immediate-
accrual construct by incorporating the holding from
Palmer v Palmer, 36 Mich 487 (1877). While conceding
that Palmer and its progeny “addressed written de-
mand notes,” Justice M
ARKMAN
concludes that “there is
no apparent reason why Palmer should not equally
apply to an oral contract.” Ante at 226. I respectfully
note several reasons why Palmer should not apply to
oral contracts like those in this case.
Palmer, a case concerning a promissory note, held
that “a note payable on demand is payable at once and
without demand, so that the statute [of limitations]
runs from its delivery.” Palmer, 36 Mich at 491 (empha-
sis added). This Court has defined a promissory note as
“a written unconditional promise by one person to pay
to another person therein named . . . a fixed sum of
money....”Parker v Baldwin, 216 Mich 472, 474; 185
NW 746 (1921) (emphasis added). Further, “[n]o con-
tract or agreement is a promissory note which does not
provide for the payment of money, absolutely and un-
conditionally.” Id. (emphasis added). Thus, a promis-
sory note is more than a contract to repay a loan: it is a
written instrument that embodies a formal promise to
repay. See MCL 440.9102(1)(uu) and (mmm); MCL
440.3104. The case at hand, however, involves informal
oral contracts, which do not meet the strict formalities
of a promissory note. Therefore, in determining when
the period of limitations begins to run on an oral
contract that does not specify the terms for repayment,
this Court should apply caselaw dealing with general
from extending accrual of their claims indefinitely by only allowing such
an extension for up to six years. Moreover, it avoids having the necessity
of accepting the illogical premise that, when an oral request to borrow
money is accepted, repayment is due at the instant the lender hands the
money over to the borrower.
2009] J
ACKSON V
G
REEN
E
STATE
243
O
PINION BY
C
AVANAGH
,J.
breach of contract actions, such as Smith Estate, rather
than those cases that deal with the hypertechnical code
of negotiable instruments.
In addition, the only justification that Justice M
ARKMAN
gives for applying Palmer is that doing so is supported by
the policies that underlie the statute of limitations. While
I agree with Justice M
ARKMAN
that those policies are
strongly implicated when dealing with an oral agreement,
Smith Estate properly addressed this issue without sub-
jecting informal oral agreements to the more stringent
rules regarding promissory notes. See Smith Estate,91
Mich at 11-12.
Also, unlike the parties in Palmer, the parties here did
not formulate a written unconditional promise to repay
within 30 days after demand. See Palmer, 36 Mich at 490.
In contrast, here there were merely oral requests to
borrow money, which prompted plaintiff to write 11
checks over a span of several years. While plaintiff ex-
pected that she would be repaid, there were no specific
agreements about repayment or promises to repay the
borrowed funds. Thus, as noted, in contrast to Justice
M
ARKMAN
’s assertion, there were no “express terms” of
the contracts that contemplated immediate payment.
Finally, applying Palmer’s view that the period of
limitations begins to run on the date of delivery, and
therefore no demand is necessary, is inconsistent with
this Court’s declarations regarding basic contract prin-
ciples. In essence, Palmer puts the oral-contract bor-
rower in immediate breach of the contract and thus
makes a loan that had no specified time set for repay-
ment due immediately. This conflicts with our pro-
nouncement that “when a contract is silent as to time of
performance or payment, absent any expression of a
contrary intent, the law will presume a reasonable
time.” Duke v Miller, 355 Mich 540, 543; 94 NW2d 819
244 484 M
ICH
209 [July
O
PINION BY
C
AVANAGH
,J.
(1959). Moreover, application of Palmer here contra-
venes common sense: informal oral loans are hand-
shake agreements that intuitively are not breached at
the time of the handshake. It would be nonsensical to
assume that informal loans that consisted of thousands
of dollars would be due immediately, as they would be
under Palmer. My application of Smith Estate does not
subject informal oral handshake-type agreements to the
strict formalities of promissory notes, and it is consis-
tent with this Court’s pronouncements regarding basic
contract principles.
In sum, Justice M
ARKMAN
’s construct represents one
end of the spectrum on this issue. He would have
accrual occur at the inception of the loan, which I think
would prematurely trigger the running of the period of
limitations because it contradicts both the facts of this
case and this Court’s general pronouncements on oral
contracts. In essence, Justice M
ARKMAN
gives the inter-
ests supporting the statute of limitations too much
weight. Justice Y
OUNG
, in contrast, represents the other
end of the spectrum. Under his construct, the purposes
of the statute of limitations are given too little respect
because a claimant can extend the accrual of his claim
indefinitely. I recognize that both constructs represent
good-faith attempts to balance the tenets of statutes of
limitations with the countervailing principles of con-
tract law. However, I find them both to be out of
balance. I think that applying Smith Estate to this issue
achieves the best balance between the concern of en-
suring that contracts will be enforced and the compet-
ing concern that claims will not become stale.
III. CONCLUSION
For all these reasons, I would reverse the judgment of
the Court of Appeals on both issues.
2009] J
ACKSON V
G
REEN
E
STATE
245
O
PINION BY
C
AVANAGH
,J.
K
ELLY
, C.J., concurred with C
AVANAGH
,J.
W
EAVER
, J. I believe that leave to appeal was improvi-
dently granted in this case because the result reached
by the Court of Appeals in this case is correct.
H
ATHAWAY
, J., concurred with W
EAVER
,J.
246 484 M
ICH
209 [July
O
PINION BY
W
EAVER
,J.
HUNTER v HUNTER
Docket No. 136310. Argued March 3, 2009 (Calendar No. 2). Decided July
31, 2009.
Robert and Lorie Hunter, the guardians of four minor children of
Tammy Jo and Jeff Hunter, filed in the Oakland Circuit Court,
Family Division, a complaint and motion seeking legal and physi-
cal custody of the children. The plaintiffs, the brother and sister-
in-law of Jeff, had been appointed guardians after a period during
which Tammy Jo and Jeff were unable to care for their children
because of their use of crack cocaine. After the plaintiffs were
appointed guardians, Tammy Jo (hereafter the defendant) sought
and was granted visitation opportunities that were contingent on
her ability to verify her drug-free status, maintain employment,
and pay child support. She complied with the requirements and
was granted additional opportunities for visitation. A hearing
referee determined that the children had an established custodial
environment with the plaintiffs and that the defendant was an
unfit parent. The defendant objected and requested a hearing de
novo. The court, Linda S. Hallmark, J., conducted a hearing and
determined that the defendant was not a fit parent. Following a
hearing to determine the best interests of the children, the court
determined that it was in the children’s best interests to remain
with the plaintiffs and granted the plaintiffs physical and legal
custody. The court ordered the defendant to pay child support and
part of the plaintiffs’ attorney fees. The Court of Appeals granted
the defendant leave to appeal and, in an unpublished opinion per
curiam, issued March 20, 2008 (Docket No. 279862), the Court,
S
AAD
, C.J., and B
ORRELLO
,J.(G
LEICHER
, J., dissenting), affirmed the
custody determination, but reversed the award of attorney fees.
The Supreme Court granted the defendant’s application for leave
to appeal, limited to the following issues: “(1) whether the stan-
dard for parental fitness in Mason v Simmons, 267 Mich App 188,
206 (2005), and the courts’ application of Mason here violate a
natural parent’s fundamental right to his or her child, see Troxel
v Granville, 530 US 57 (2000); (2) if a natural parent is found to
have been unfit under the appropriate standard and his or her lack
of fitness led to the child’s established custodial environment with
a third party, whether the parent’s later fitness at the time he or
2009] H
UNTER V
H
UNTER
247
she seeks custody is relevant to a proper fitness determination; (3)
whether the lower courts in this case properly applied the pre-
sumption in the Child Custody Act favoring the children’s estab-
lished custodial environment, MCL 722.27(1)(c), instead of the
presumption in favor of natural parents, MCL 722.25(1), compare
Heltzel v Heltzel, 248 Mich App 1 (2001); (4) whether the trial
court’s finding of parental unfitness here was against the great
weight of the evidence; and (5) whether the trial court’s determi-
nation regarding the best interests of the children were against the
great weight of the evidence.” 482 Mich 981 (2008).
In an opinion by Chief Justice K
ELLY
, joined by Justices
C
AVANAGH
,Y
OUNG
,M
ARKMAN
, and H
ATHAWAY
, the Supreme Court
held:
1. The parental presumption in MCL 722.25(1) prevails over
the presumption in favor of an established custodial environment
in MCL 722.27(1)(c). The parental presumption can be rebutted
only by clear and convincing evidence that custody with the
natural parent is not in the best interests of the child. The
presumption in MCL 722.25(1) satisfies constitutional scrutiny
under the minimum protection established in Troxel against state
intrusion into the parenting decisions of fit parents. The presump-
tion in MCL 722.25(1) provides sufficient deference to a fit natural
parent’s fundamental rights to the care, custody, and management
of the parent’s child. Although a fit parent is presumed to act in his
or her child’s best interests, a court need give the parent’s decision
only a presumption of validity or some weight. This is what MCL
722.25(1) does when it requires clear and convincing evidence to
rebut the presumption.
2. MCL 722.25(1) applies to all natural parents who are parties
in custody disputes with third parties, not merely fit natural
parents. The Mason Court erred by holding that the statutory
parental presumption in the natural parent’s favor applies only to
fit parents. Mason must be overruled. Due process does not
require a threshold determination of parental fitness in custody
cases.
3. Collateral estoppel principles provide a sufficient basis to
preclude parents from initiating an action for custody under the
Child Custody Act in order to circumvent valid court orders
affecting custody.
4. The judgment of the Court of Appeals must be reversed and
the case must be remanded to the trial court for a new best-
interest hearing in which the court must consider all relevant
up-to-date information. The court must apply MCL 722.25(1) in
the defendant’s favor at the hearing. The court may not grant
248 484 M
ICH
247 [July
custody to the plaintiffs unless they demonstrate by clear and
convincing evidence that custody with the defendant would not be
in the children’s best interests. In order to make this showing, the
plaintiffs must prove that all relevant factors, including the
existence of an established custodial environment and all legisla-
tively mandated best-interest concerns in MCL 722.23, taken
together, clearly and convincingly demonstrate that the children’s
best interests require placement with a third person.
Reversed and remanded.
Justice W
EAVER
, concurring in part and dissenting in part,
agreed with the reversal of the Court of Appeals’ judgment and
with the remand to the trial court for a new best-interest hearing
for the reasons stated by Chief Justice K
ELLY
in parts I, II, and
III(B) and (D) of the majority opinion and by Justice C
ORRIGAN
in
part III (except footnote 12) of her partially concurring and
partially dissenting opinion.
Justice C
ORRIGAN
, concurring in part and dissenting in part,
concurred with parts I, II, and III(B) and (D) of the majority
opinion and noted her agreement with the majority’s conclusion
that fit parents benefit from a constitutional presumption that
they will act in the best interests of their children and that, when
prior court proceedings govern child custody, those proceedings
generally have preclusive effect and the prior court has superior
jurisdiction. A parent cannot circumvent these proceedings by
seeking custody under the Child Custody Act, MCL 722.21 et seq.
Justice C
ORRIGAN
disagreed with the majority that the constitu-
tional presumption in favor of a fit parent imbues the presumption
in MCL 722.25(1)—which applies to all parents, not just fit
parents—with heightened constitutional meaning so that it always
prevails over the mandate concerning established custodial envi-
ronments in MCL 722.27(1)(c). Although constitutional consider-
ations require the presumption in MCL 722.25(1) to predominate
in the case of a fit parent, when a parent’s lack of fitness has been
previously established or admitted and a third party has an
established custodial environment with the child, the parent
should not benefit from the presumption in MCL 722.25(1) and the
mandate in MCL 722.27(1)(c) governs instead. The majority is
correct in stating that even when a custody action is properly filed
by a guardian under MCL 722.26b, as here, the trial court is not
bound to award custody to any party and may act in the best
interests of the child under MCL 722.27(1). Therefore, the trial
court at its discretion may dismiss the plaintiffs’ custody action in
light of their apparent attempt to subvert the ongoing guardian-
2009] H
UNTER V
H
UNTER
249
ship proceedings in which the defendant was fulfilling increasing
duties owed to her children and gaining increased visitation time.
1. P
ARENT AND
C
HILD —
C
HILD
C
USTODY —
P
ARENTAL
P
RESUMPTION —
E
STAB-
LISHED
C
USTODIAL
E
NVIRONMENT
P
RESUMPTION
.
The parental presumption contained in MCL 722.25(1) prevails over
the presumption in favor of an established custodial environment
contained in MCL 722.27(1)(c) in an action in which both pre-
sumptions apply.
2. P
ARENT AND
C
HILD —
C
HILD
C
USTODY —
P
ARENTAL
P
RESUMPTION
.
The presumption in MCL 722.25(1) that in a custody dispute between
a parent and an agency or third person the court shall presume that
the best interests of the child are served by awarding custody to the
parent applies to all natural parents who are parties, not merely fit
natural parents; the presumption applies unless the contrary is
established by clear and convincing evidence.
Scott Bassett and Law Offices of Victor and Victor
PLLC (by Daniel Victor) for Robert and Lorie Hunter.
Saraphoena B. Koffron for Tammy Jo Hunter.
Amici Curiae:
Holli J. W allace PLLC (by Holli J. Wallace) and Amal
M. Bass for the California Women’s Law Center, the
Connecticut Women’s Education and Legal Fund, the
Northwest Women’s Law Center, and the Women’s Law
Project.
Michigan Poverty Law Program (by Rebecca E. Shi-
emke), Legal Services of South Central Michigan (by
Susan L. Hartman and Elizabeth E. Rios), and Family
Law Project (by Rebecca K. Ellis) for the Michigan
Coalition Against Domestic and Sexual Violence.
Deana Pollard Sacks and Karen E. Groenhout for the
Center for Effective Discipline, the National Coalition
to Abolish Corporal Punishment in Schools, and End
Physical Punishment of Children.
250 484 M
ICH
247 [July
Carlo Martina and Anne Argiroff for the Family Law
Section of the State Bar of Michigan.
Ashley E. Lowe, Robert A. Sedler, Michael J. Stein-
berg, and Kary L. Moss, for the American Civil Liberties
Union Fund of Michigan.
K
ELLY
, C.J. This child custody case requires us to
examine (1) the scope of the constitutional rights of
natural parents in raising their children, (2) how pro-
visions of Michigan’s Child Custody Act (CCA)
1
interact
with those rights, and (3) whether the circuit court in
this case applied the correct legal standards (a) in
finding defendant,
2
the children’s biological mother, to
be an unfit parent and (b) in awarding legal and
physical custody of her four children to the children’s
paternal uncle and his wife.
We conclude that the circuit court did not apply the
correct legal standards. We also overrule Mason v
Simmons,
3
which the lower courts relied on, because its
holding is inconsistent with the statutory language of
the CCA and inconsistent with longstanding principles
of Michigan custody jurisprudence. Therefore, we re-
verse the judgment of the Court of Appeals and remand
the case to the circuit court for further proceedings.
I. FACTS AND PROCEDURAL HISTORY
In 2002, Tammy Jo Hunter and her husband, Jeff
Hunter, lived in Indiana with their four young children,
who ranged in age from two to nine years. There is no
evidence in the record that Indiana child welfare au-
thorities ever investigated or sought jurisdiction over
1
MCL 722.21 et seq.
2
“Defendant” herein refers to appellant Tammy Jo Hunter.
3
Mason v Simmons, 267 Mich App 188; 704 NW2d 104 (2005).
2009] H
UNTER V
H
UNTER
251
O
PINION OF THE
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OURT
the family. Tammy and Jeff began using crack cocaine.
In August 2002, Tammy left her four children in Jeff’s
care at home and did not return for six days. During her
absence, Jeff contacted his brother and sister-in-law in
Michigan, plaintiffs Robert and Lorie Hunter, and re-
quested their assistance. Robert drove to Indiana, col-
lected the children, and returned to Michigan.
Two months later, Tammy and Jeff came to Michigan
and retrieved their children, claiming that they had
successfully overcome their drug addictions. A short
time later, however, plaintiffs learned that Tammy and
Jeff had relapsed. Plaintiffs again drove to Indiana and
brought the children to Michigan. Robert testified that
he and Lorie told Tammy and Jeff that “we were taking
thekids...andtold them they had to give us the kids
and sign these guardianship papers.” Tammy signed
papers establishing a limited guardianship with plain-
tiffs.
Seven months later, in May 2003, Tammy and Jeff
petitioned the Oakland Circuit Court to terminate
plaintiffs’ guardianship. However, they failed to appear
at a June 2003 hearing because they were again using
cocaine. On July 1, 2003, the circuit court dissolved the
limited guardianship and appointed plaintiffs full
guardians of the children.
Tammy’s life further deteriorated when she was
incarcerated in August 2004. She was released from
prison in April 2005 and, three months later, filed a
petition in the Oakland Circuit Court seeking an oppor-
tunity to visit her children.
4
The circuit court required
her to verify her drug-free status since her release from
prison. She was required to undergo biweekly drug
4
Tammy obtained a divorce from Jeff while he was incarcerated in
Indiana. Jeff has been incarcerated on and off since 2003 and was never
a party to this appeal.
252 484 M
ICH
247 [July
O
PINION OF THE
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OURT
testing, attend Alcoholics Anonymous or Narcotics
Anonymous meetings, and maintain weekly telephone
contact with her children. She complied with each of
these requirements.
On November 9, 2005, the circuit court ordered
Tammy to begin paying child support and allowed
supervised visits with the children. At a review hearing
conducted six months later, the circuit court noted that
Tammy’s visitation had gone well and that she regu-
larly paid child support. The circuit court expanded her
parenting time, awarding her unsupervised weekend
visits in Michigan during May and June 2006 and
overnight, unsupervised visits in Indiana beginning in
July 2006. The court also continued her child support
obligation and ordered her to submit to weekly drug
screens. She again met each of the court’s require-
ments. By the time this case was filed, Tammy was
having monthly unsupervised weekend visits with the
children at her Indiana home and in Michigan.
In May 2006, plaintiffs filed this action seeking legal
and physical custody of the children. The parties stipu-
lated that the Friend of the Court (FOC) referee would
make a preliminary finding regarding the children’s es-
tablished custodial environment and whether Tammy was
a “fit parent,” using Mason v Simmons “as its guide.”
The referee determined that the children had an
established custodial environment with plaintiffs and
that Tammy was an unfit parent. Tammy filed objec-
tions to the referee’s report and requested a hearing de
novo. Ten days after receiving the referee’s report, the
circuit court entered another order. It required Tammy
to attend parenting classes, submit to random drug
screens, participate in substance abuse counseling, and
attend family counseling sessions with her children and
her live-in boyfriend. Tammy again complied with all
requirements.
2009] H
UNTER V
H
UNTER
253
O
PINION OF THE
C
OURT
At the evidentiary hearing, several witnesses tes-
tified regarding the circumstances in 2002 and 2003
that led to the establishment of plaintiffs’ guardian-
ship of the children. Tammy testified that she had
remained drug-free since August 2004 and supplied
the court with a compendium of negative drug screen
reports. She also testified that she earned $10.50 an
hour as an assistant sales manager and lived with her
boyfriend in a four-bedroom home in Indiana. A
family therapist who had evaluated the children
pursuant to a circuit court order reported that the
children were “attached” to Tammy and “have a
preference to move [in] with her full time.”
The circuit court concluded that Tammy was not a
fit parent. In its bench ruling, the court gave its
reasons:
Now, as to the issue of mom’s fitness.
I believe that mom is a very nice person.
That she loves these children very dearly and I think
they love her.
And I’m impressed by the progress that she has made.
But I don’t believe that her love for the children is
equivalent to being a fit parent.
When we look at the definition of fitness, it’s not about
whether she’s a nice person, it is not about whether today
she has made progress—and, again, she has made
progress—it is about what happened in conjunction with
these kids.
And in 2002 the parents were drug addicted.
They could not provide a home for the children and the
family intervened and rather than having [Children’s Pro-
tective Services] involvement and have these children go to
foster care the family took over and stepped in and pro-
vided a stable and loving home for these four kids, it
doesn’t happen very often and it’s wonderful when that
254 484 M
ICH
247 [July
O
PINION OF THE
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OURT
does happen and I think, again, these kids are doing as well
as they are today because of that intervention.
And mom has made progress but there are still numer-
ous questions and numerous issues.
These kids have never really lived with her for the last
five years.
And in Dr. [Jerome] Price’s report he talks about that,
that they regard going to mom’s as vacation time.
They have not had to do the grueling, day to day, sort of
parenting and be tested that way so we can make some
determination about what the current situation is.
And mom lives with a man, who seems like a very nice
individual also, a hard working person, but they live in
an out of wedlock relationship and exposing the children
to an out of wedlock relationship, given all of the other
instability of their lives at this point is questionable
judgment.
I heard his testimony that he’s listed her as a benefi-
ciary on his life insurance and he expects that he will leave
her his assets should he pass away.
But the truth of the matter is she has no legal rights as
a live together person.
There is a reason that we have marriage in this society
and marriage protects her.
The relationship she is in gives her no protection and
if at any time Mr. McConnell wants to tear up the letter,
change the beneficiary, move out, he, of course is free to
do so, as she is, and there are no legal ramifications to
that.
So she is not really very well protected and without his
assistance she cannot maintain the children.
She’s been in a home for six months; that’s a lease home
and she admitted herself that she could not possibly
maintain the children financially without Mr. McConnell
being there and without his financial assistance.
2009] H
UNTER V
H
UNTER
255
O
PINION OF THE
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OURT
So I think she has made terrific strides but I don’t think
she’s at a point yet where we can say she is able to provide
a stable and secure home for these four children, who have
been out of her care for five years.
So I don’t believe that’s the definition of fitness.
The court then held a best interests hearing. After
considering the testimony, the court agreed with the
referee’s findings. The court determined that 9 of the
12 best interest factors
5
favored plaintiffs and that the
parties were equal with respect to 2 of the factors.
6
The
court also stated on the record that it had “taken into
consideration” the remaining factor, the reasonable
preference of the children,
7
in reaching its decision.
The court held that it was in the children’s best
interests to remain with plaintiffs and granted them
physical and legal custody. It also ordered Tammy to
pay child support and $4,000 of plaintiffs’ attorney
fees. The court later denied Tammy’s motion for
reconsideration.
Tammy filed an application for leave to appeal in the
Court of Appeals. In a split, unpublished decision, the
Court of Appeals majority affirmed the custody deter-
mination, but reversed the award of attorney fees.
8
Judge G
LEICHER
dissented. She would have reversed the
custody determination because the circuit court’s deci-
sion regarding parental fitness was unconstitutional
and against the great weight of the evidence. We
granted leave to appeal.
9
5
MCL 722.23(b), (c), (d), (e), (f), (g), (h), (j), and (l).
6
MCL 722.23(a) and (k).
7
MCL 722.23(i).
8
Hunter v Hunter, unpublished opinion per curiam of the Court of
Appeals, issued March 20, 2008 (Docket No. 279862).
9
Hunter v Hunter, 482 Mich 981 (2008).
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II. LEGAL BACKGROUND
We review de novo questions of law involving statu-
tory interpretation and questions concerning the con-
stitutionality of a statute.
10
Findings of fact in child
custody cases are reviewed under the great weight of
the evidence standard.
11
The central issues in this case are (1) what is the proper
application of MCL 722.25(1) and MCL 722.27(1)(c); and
(2) do the federal constitutional standards concerning the
fundamental rights of parents to raise their children
control our answer to the first question?
A. UNITED STATES SUPREME COURT PRECEDENT
The importance of the family and the “essential,”
“basic,” and “precious” right of parents to raise their
children are well established in United States Supreme
Court jurisprudence.
12
This right is not easily relin-
quished. “The fundamental liberty interest of natural
parents in the care, custody, and management of their
child does not evaporate simply because they have not
been model parents or have lost temporary custody of
their child to the State.”
13
Therefore, to satisfy consti-
tutional due process standards, the state “must provide
the parents with fundamentally fair procedures.”
14
10
Taylor v Gate Pharmaceuticals, 468 Mich 1, 5; 658 NW2d 127 (2003).
11
MCL 722.28; Fletcher v Fletcher, 447 Mich 871, 877; 526 NW2d 889
(1994).
12
Stanley v Illinois, 405 US 645, 651; 92 S Ct 1208; 31 L Ed 2d 551
(1972), quoting Meyer v Nebraska, 262 US 390, 399; 43 S Ct 625; 67 L Ed
1042 (1923), Skinner v Oklahoma, 316 US 535, 541; 62 S Ct 1110; 86 L
Ed 1655 (1942), and May v Anderson, 345 US 528, 533; 73 S Ct 840; 97
L Ed 1221 (1953).
13
Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599
(1982).
14
Id. at 753-754.
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In 2000, in the case of Troxel v Granville,
15
the
United States Supreme Court delivered its most rel-
evant pronouncement in this area of the law. In a
plurality opinion, the Court struck down the state of
Washington’s “breathtakingly broad” visitation statute
as an unconstitutional infringement on the fundamen-
tal right of parents to rear their children.
16
The statute
authorized “ ‘any person’ ” to petition for visitation
rights and authorized state courts to grant such visita-
tion whenever it “ ‘may serve the best interest of the
child.’ ”
17
B. APPLICABLE MICHIGAN LAW
In 1970, the Michigan Legislature enacted the CCA.
Among its provisions are statutory presumptions that
apply in custody disputes. The presumptions pertinent
to this case are found in MCL 722.25(1) and MCL
722.27(1)(c). MCL 722.25(1) states:
If a child custody dispute is between the parents,
between agencies, or between third persons, the best
interests of the child control. If the child custody dispute is
between the parent or parents and an agency or a third
person, the court shall presume that the best interests of
the child are served by awarding custody to the parent or
parents, unless the contrary is shown by clear and convinc-
ing evidence.
MCL 722.27(1)(c), by contrast, provides in part:
15
Troxel v Granville, 530 US 57; 120 S Ct 2054; 147 L Ed 2d 49 (2000).
16
Id. at 67. Troxel also included forceful language describing the
significance of parents’ fundamental liberty interest in the care,
custody, and control of their children. It noted that this interest “is
perhaps the oldest of the fundamental liberty interests recognized by
this Court.” Id. at 65, citing Meyer, 262 US at 399, 401.
17
Troxel, 530 US at 67.
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If a child custody dispute has been submitted to the
circuit court as an original action under this act or has
arisen incidentally from another action in the circuit court
or an order or judgment of the circuit court, for the best
interests of the child the court may do 1 or more of the
following:
***
(c) Modify or amend its previous judgments or orders for
proper cause shown or because of change of circumstances
until the child reaches 18 years of age....Thecourt shall
not modify or amend its previous judgments or orders or
issue a new order so as to change the established custodial
environment of a child unless there is presented clear and
convincing evidence that it is in the best interest of the
child. The custodial environment of a child is established if
over an appreciable time the child naturally looks to the
custodian in that environment for guidance, discipline, the
necessities of life, and parental comfort. The age of the
child, the physical environment, and the inclination of the
custodian and the child as to permanency of the relation-
ship shall also be considered.
Thus, a conflict arises between these sections when a
court hears a custody dispute between a child’s natural
parent and a third party with whom the child has an
“established custodial environment.” This Court has
not addressed the proper application of these sections of
the CCA in such cases.
On numerous occasions before Troxel was decided,
the Court of Appeals considered the interplay of these
two presumptions. Panels of the Court came to conflict-
ing conclusions about how to reconcile them.
18
However,
18
Compare Rummelt v Anderson, 196 Mich App 491; 493 NW2d 434
(1992), and Glover v McRipley, 159 Mich App 130; 406 NW2d 246 (1987)
(cases in where presumptions were applicable, holding that the natural
parent has the burden and that he or she must prove by a preponderance of
the evidence that the best interests of the child are served by
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after Troxel,inHeltzel v Heltzel, the Court recognized
that, to properly protect a parent’s fundamental liberty
interest, the presumption of MCL 722.25(1) in favor of
the natural parent must control.
19
Heltzel further concluded that it was imperative that
trial courts balance the two significant interests. First,
the lower courts must adequately safeguard the funda-
mental constitutional nature of the parental liberty
interest. Second, they must simultaneously maintain
the statutory focus of the CCA on the best interests of
the child. To achieve this balance, Heltzel held:
[C]ustody of a child should be awarded to a third-party
custodian instead of the child’s natural parent only when
the third person proves that all relevant factors, including
the existence of an established custodial environment and
all legislatively mandated best interest concerns within
[MCL 722.23], taken together clearly and convincingly
demonstrate that the child’s best interests require place-
ment with the third person.
[
20
]
placement with the parent), with Deel v Deel, 113 Mich App 556; 317
NW2d 685 (1982), Siwik v Siwik, 89 Mich App 603; 280 NW2d 610
(1979), Stevens v Stevens, 86 Mich App 258; 273 NW2d 490 (1978), and
Bahr v Bahr, 60 Mich App 354; 230 NW2d 430 (1975) (holding that the
parental presumption controls unless the third party shows by clear and
convincing evidence that custody with the natural parent is not in the
best interests of the child).
19
Heltzel v Heltzel, 248 Mich App 1, 26-27; 638 NW2d 123 (2001)
(“We do not believe, however, that the Legislature intended that in
every custody dispute between a noncustodial natural parent and a
third-person custodian, the third-person custodian could eliminate the
fundamental constitutional presumption favoring custody with the
natural parent, and thus arrive on equal footing with the parent with
respect to their claim of custody to the parent’s child, merely by
showing that the child had an established custodial environment in
the third person’s custody. This interpretation . . . fails to take into
proper account the parents’ fundamental due process liberty interest
in childrearing.”).
20
Id. at 27.
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The Court of Appeals thoroughly considered Heltzel’s
analysis when it decided Mason. It noted that no
published Court of Appeals case had addressed the
applicability of Heltzel in cases in which a natural
parent was unfit or had neglected or abandoned a
child.
21
Without citing authority to support its conclusion,
Mason then distinguished Heltzel, saying that it applies
only to custody disputes involving fit parents. It held
that when “a parent’s conduct is inconsistent with the
protected parental interest, that is, the parent is not fit,
or has neglected or abandoned a child, the reasoning
and holding of Heltzel do not govern.”
22
Mason thus
affirmed the trial court’s determination that the defen-
dant was not entitled to the constitutional deference
afforded a fit parent under Heltzel and Troxel.It
extended that reasoning to justify denying the natural
parent the benefit of the statutory presumption in MCL
722.25(1).
III. THE CCA’S PROTECTIONS
Custody cases involving natural parents inherently
implicate the parents’ fundamental liberty interest in
the care, custody, and management of their children.
23
Thus, they implicate the constitutional protections
identified in the United States Supreme Court cases
previously discussed. The threshold question this Court
must address is whether the relevant provisions of the
CCA adequately protect a fit parent’s fundamental
rights under existing United States Supreme Court
precedent.
21
Mason, 267 Mich App at 198.
22
Id. at 206.
23
Santosky, 455 US at 753.
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A. UNDER TROXEL, MCL 722.25(1) MUST CONTROL OVER
MCL 722.27(1)(c) IN ORDER TO ADEQUATELY PROTECT
FIT PARENTS’ FUNDAMENTAL RIGHTS
Troxel established a floor or minimum protection
against state intrusion into the parenting decisions of
fit parents. It invalidated the state of Washington’s
third-party visitation statute as a violation of a natural
parent’s fundamental rights. It reasoned that the Wash-
ington statute was flawed because it afforded no defer-
ence to a fit parent’s decision about his or her children’s
best interests.
24
Rather, the statute allowed “any third
party seeking visitation to subject any decision by a
parent concerning visitation of the parent’s children to
state-court review.”
25
Troxel also forbade courts from
overturning decisions by a fit custodial parent based
“solely on the judge’s determination of the child’s best
interests.”
26
Rather, it held that courts must give some
“special weight” to the parents’ determination of their
children’s best interests.
27
The constitutional protection in Troxel centers on
the “traditional presumption that a fit parent will act in
the best interest of his or her child.”
28
The Washington
statute’s lack of deference to a fit parent’s decision was
inconsistent with the presumption that fit parents act
in the best interests of their children. Hence, it was
constitutionally infirm. Using that reasoning, Troxel
established that a natural parent’s fitness to parent is
the touchstone for invoking the constitutional protec-
tions of fundamental parental rights. The application of
the statutory presumption in MCL 722.25(1) must
24
Troxel, 530 US at 67.
25
Id.
26
Id.
27
Id. at 70.
28
Id. at 69.
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therefore be considered specifically in the context of a
fit parent to determine whether it satisfies constitu-
tional scrutiny under Troxel.
In Heltzel, our Court of Appeals recognized Troxel’s
mandate: In order to protect a fit natural parent’s
fundamental constitutional rights, the parental pre-
sumption in MCL 722.25(1) must control over the
presumption in favor of an established custodial envi-
ronment in MCL 722.27(1)(c). We agree.
Several considerations compel this conclusion. First,
Troxel explicitly requires courts to give some deference
to a parent’s decision to pursue custody because it is
inherently central to the parent’s control over his or her
child.
By contrast, unlike the parental presumption in MCL
722.25(1), no constitutional protections for third per-
sons underlie the established custodial environment
presumption in MCL 722.27(1)(c). This Court has held
that no constitutional or statutory basis exists for third
parties to have standing to seek child custody solely
because they have an established custodial relationship
with the child.
29
29
Bowie v Arder, 441 Mich 23, 43; 490 NW2d 568 (1992) (rejecting the
argument that the CCA created a substantive right of a third party to
seek custody of a child with whom the third party has an established
custodial relationship and observing that “[t]here is simply no provision
of the [CCA] that can be read to give a third party . . . a right to legal
custody of a child on the basis of the fact that the child either resides with
or has resided with that party”); In re Clausen, 442 Mich 648, 682-684;
502 NW2d 649 (1993) (rejecting the argument that United States
Supreme Court precedent established a federal constitutional right of a
third party to seek custody of a child with whom the third party has an
established custodial relationship).
We note that plaintiffs have standing to pursue this custody action by
virtue of their status as the children’s legal guardians. MCL 722.26b(1).
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Finally, we note that the vast majority of Michigan
cases interpreting the CCA support the conclusion that
these presumptions were not meant to be given equal
weight.
30
This conclusion is also in accord with Michi-
gan’s longstanding history of affording great respect to
parental authority while consistently recognizing that
the best interests of the child control the analysis.
31
For
these reasons, we conclude that, when these presump-
tions conflict, the presumption in MCL 722.27(1)(c)
must yield to the presumption in MCL 722.25(1).
32
A remaining constitutional question involves the
amount of deference due under Troxel to fit parents. We
conclude that the statute provides sufficient deference
to a fit natural parent’s fundamental rights to the
“care, custody, and management of their child ....”
33
30
Bowie, 441 Mich at 43 (holding that an established custodial envi-
ronment does not establish a substantive basis on which to sue for
custody under the CCA); Deel, 113 Mich App at 561 (“Stevens holds that
the presumptions should be recognized equally, not weighted equally, and
the language used in the statutes suggests that the presumptions are not,
in fact, of equal weight.”) (emphasis in original). The few cases that have
held otherwise have since been rejected as unconstitutional under Troxel.
E.g., Heltzel, 248 Mich App at 21-23 (“reject[ing]” Rummelt and declining
to follow its “unconstitutional[]” application of the CCA). Rummelt and
its predecessors had resolved the conflict in the statutory presumptions.
They said that the natural parent must show by a preponderance of the
evidence that removing the child from an established custodial environ-
ment was in the child’s best interests.
31
Fletcher, 447 Mich at 889 (“[T]he primary goal of the Child Custody
Act...istosecurecustodydecisions that are in the best interests of the
child.”); Greene v Walker, 227 Mich 672, 677-681; 199 NW 695 (1924)
(citing cases).
32
“ ‘[A]s between two possible interpretations of a statute, by one of
which it would be unconstitutional and by the other valid, our plain duty
is to adopt that which will save the act.’ ” Bowerman v Sheehan, 242 Mich
95, 99; 219 NW 69 (1928), quoting Justice Holmes in Blodgett v Holden ,
275 US 142, 148; 48 S Ct 105; 72 L Ed 206 (1927).
33
Santosky, 455 US at 753.
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We so hold because the statute requires, in order to
rebut the parental presumption, clear and convincing
evidence that custody by the natural parent is not in a
child’s best interests.
The clear and convincing evidence standard is “the
most demanding standard applied in civil cases....”
34
This showing must “ ‘produce[] in the mind of the trier
of fact a firm belief or conviction as to the truth of the
allegations sought to be established, evidence so clear,
direct and weighty and convincing as to enable [the
fact-finder] to come to a clear conviction, without
hesitancy, of the truth of the precise facts in issue.’ ”
35
We agree with the Court of Appeals in Heltzel that,
given the unique constitutional considerations in cus-
tody disputes involving natural parents, “it is not
sufficient that the third person may have established by
clear and convincing evidence that a marginal, though
distinct, benefit would be gained if the children were
maintained with him.”
36
A third party seeking custody
must meet a higher threshold. He or she must establish
by clear and convincing evidence that it is not in the
child’s best interests under the factors specified in MCL
722.23 for the parent to have custody. This is entirely
consistent with Troxel’s holding. Although a fit parent
is presumed to act in his or her child’s best interests, a
court need give the parent’s decision only a “presump-
tion of validity” or “some weight.” That is precisely
what MCL 722.25(1) does when it requires clear and
convincing evidence to rebut the presumption.
Given our determination that (1) the parental pre-
sumption in MCL 722.25(1) prevails over the presump-
34
In re Martin, 450 Mich 204, 227; 538 NW2d 399 (1995).
35
Id. (citations omitted).
36
Heltzel, 248 Mich App at 28.
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tion in favor of an established custodial environment in
MCL 722.27(1)(c) and that (2) the parental presump-
tion can be rebutted only by clear and convincing
evidence that custody with the natural parent is not in
the best interests of the child, we conclude that MCL
722.25(1) satisfies constitutional scrutiny under
Troxel.
37
37
Our constitutional analysis is further supported by a comparison
with similar statutes in other states. The CCA’s provisions governing
custody disputes between a natural parent and a third party are more
deferential to the natural parent than some, but less deferential than
others. Michigan appears to fall near the middle of the spectrum. At one
end are the strict “parental rights” jurisdictions, which base a parent’s
right to custody on the fitness of the parent. At the opposite end are the
“best interests” jurisdictions, which base custody exclusively on the
child’s needs and welfare. The standards in between usually give prefer-
ence to the biological parent through a rebuttable presumption that the
best interests of the child are served by giving custody to the natural
parent. See, generally, Anno: Award of custody where contest is between
child’s parents and grandparents, 31 ALR3d 1187, 1197-1198; In re
Guardianship of Jane Doe, 93 Hawaii 374, 384-385; 4 P3d 508 (Hawaii
App, 2000).
Under the doctrine most deferential to natural parents, the parents are
entitled to the custody of their children unless (1) it clearly appears that they
are unfit, (2) they have abandoned their right to custody, or (3) “extraordi-
nary circumstances” exist that require they be deprived of custody. Id.; Ex
parte GC, 924 So 2d 651, 656 (Ala, 2005) (requiring “clear and convincing
evidence” of parental unfitness to rebut the presumption in favor of the
natural parent) (citations omitted); State ex rel KF, 2009-UT 4, ¶ 67; 201
P3d 985, 1000 (2009) (requiring evidence of three factors establishing
unfitness in order to rebut the presumption in favor of the natural parent).
Most courts using this standard rarely evaluate the best interests of the child
when resolving the issue. Rebutting the parental presumption in the states
using this standard typically hinges on a determination of unfitness. Hence,
this standard undoubtedly provides sufficient deference to a natural par-
ent’s decisions regarding the care, custody, and maintenance of his or her
child to satisfy Troxel.
Michigan, along with many other states, applies an intermediate
parental presumption standard that favors the biological parent. It is
rooted in the Troxel rationale that custody with the natural parent serves
the best interests of the child. Usually, nonparents may rebut the
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B. TROXEL DOES NOT REQUIRE A THRESHOLD DETERMINATION
OF PARENTAL FITNESS IN CUSTODY CASES IF
NO STATUTORY REQUIREMENT EXISTS
Defendant and some of the amici curiae argue that
this Court must read into the statute an implicit
requirement for a fitness determination in order to
protect parents’ fundamental rights. Even if the pre-
sumption in MCL 722.25(1) supersedes the presump-
tion in MCL 722.27(1)(c), defendant argues that the
court must make a preliminary determination whether
a natural parent is a fit parent. Thus, defendant insists,
Troxel prevents courts from allowing a third party to
rebut the presumption using a best interests analysis
because it would insufficiently protect the parent’s
rights.
Defendant relies on In re JK in support of her
argument. In that case, this Court stated that “[a]
presumption favoring the parent only by a showing of clear and convinc-
ing evidence that custody with the natural parent is not in the child’s best
interests. MCL 722.25(1); In re Guardianship of Doe, 93 Hawaii at 385.
The standard least deferential to the natural parent’s wishes is often
referred to simply as the “best interests of the child standard.” It focuses
on the interests of the child and defines the relative benefits to the child
of being with one or the other party. It requires the court to compare the
totality of the circumstances of the two potential custodians, usually on
the basis of statutory considerations similar to those embodied in MCL
722.23. Courts using this standard typically grant custody by determin-
ing, by a preponderance of the evidence, which placement is in the best
interests of the child.
The states that use this best interests of the child standard often give
some deference to the natural parent. But they are less deferential to the
natural parent’s wishes than Michigan is in MCL 722.25(1). For example,
Or Rev Stat 109.119 (2007) provides a parental presumption. But it
allows a third party having an established parent-child relationship with
the child to rebut it. The third party need produce a mere preponderance
of the evidence that granting custody to the third party is in the best
interests of the child. The Oregon Supreme Court upheld the statute in
the face of a due process challenge based on Troxel. In re Marriage of
O’Donnell-Lamont, 337 Or 86; 91 P3d 721 (2004).
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due-process violation occurs when a state-required
breakup of a natural family is founded solely on a ‘best
interests’ analysis that is not supported by the requisite
proof of parental unfitness.”
38
Defendant urged us to
examine the Probate Code, the juvenile code, and other
sections of Michigan law to adopt a test for evaluating
parental fitness. She claims that, to satisfy constitu-
tional scrutiny, such a test must be based on objective
factors similar or identical to those listed in those
statutes.
We reject defendant’s arguments as beyond the scope
of the holdings of Troxel and In re JK. As noted
previously, Troxel carefully limited the constitutional
scope of the parental presumption to the extent that a
court need give decisions by fit custodial parents only a
“presumption of validity.”
39
Since MCL 722.25(1) ap-
plies a substantial presumption of the validity of deci-
sions by all parents, including fit custodial parents, the
constitutional underpinnings of Troxel are satisfied.
40
38
In re JK, 468 Mich 202, 210; 661 NW2d 216 (2003), citing Quilloin v
Walcott, 434 US 246, 255; 98 S Ct 549; 54 L Ed 2d 511 (1978).
39
Other jurisdictions whose courts have considered the proper appli-
cation of Troxel in similar legal contexts have also rejected the idea that
Troxel mandates a determination of parental fitness. Rather, in the
context of motions to terminate a guardianship or to modify custody in
favor of a natural parent, many courts have distinguished Troxel because
it “was concerned with judicial interference in the day-to-day child-
rearing decisions of fit, custodial parents....Itdidnotaddress situations
in which the parent no longer has custody.” In re MJK, 200 P3d 1106,
1109 (Colo App, 2008), citing In re Guardianship of LV, 136 Cal App 4th
481, 493; 38 Cal Rptr 3d 894 (2006); see also In re MNG, 113 SW3d 27,
33 (Tex App, 2003).
40
Defendant would have the Court require a demonstration of parental
unfitness before allowing the parental presumption to be rebutted where
no such demonstration is required by the statute. That would, in effect,
give unlimited deference to all parenting decisions of parents deemed to
be fit. However, “[a] determination that an individual has a fundamental
right does not foreclose the State from ever limiting it.” In re RA, 153 NH
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In re JK is distinguishable from the case before us. It
was a case involving termination of parental rights.
Termination cases introduce a significantly heightened
intrusion upon a parent’s fundamental right to parent
because they involve an all-or-nothing proposition:
whether a parent’s right to be a parent and make
decisions regarding his or her child’s upbringing is
permanently severed. It follows logically that under
circumstances where the parental interest is most in
jeopardy, due process concerns are most heightened.
A custody award to a third party, by contrast, repre-
sents a lesser intrusion into the family sphere. It does
not result in an irrevocable severance of parental rights
or “ ‘a unique kind of deprivation’ ” that forces parents
to confront the state.
41
The Legislature has addressed
these concerns by requiring the state to prove parental
unfitness by “clear and convincing evidence” in termi-
nation cases. It has listed specific statutory factors that
it has determined make a parent per se unfit and
warrant terminating his or her rights to a child.
42
82, 102; 891 A2d 564 (2005). Such a determination is not constitutionally
mandated. To hold that parental unfitness is a mandatory prerequisite to
rebutting the parental presumption would be inconsistent with the
CCA’s emphasis on best interests and lack of reference to fitness.
We note that our interpretation of the relevant provisions of the CCA
is similar to that of the courts in many jurisdictions that also utilize an
intermediate parental presumption standard. In re Guardianship of Doe,
93 Hawaii at 385 (“Because the preference for parents established in
[Hawaii Rev Stat] 571-46(1) is coupled with the best interest standard,
we believe our jurisdiction is similar to the majority of jurisdictions which
adopt a custody presumption in favor of parents subject to rebuttal.”);
Evans v McTaggart, 88 P3d 1078, 1085 (Alas, 2004) (“We thus hold that
in order to overcome the parental preference a non-parent must show by
clear and convincing evidence that...thewelfare of the child requires
the child to be in the custody of the non-parent.”).
41
Santosky, 455 US at 759 (citation omitted).
42
MCL 712A.19b(3).
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The quoted language from In re JK is inapplicable in
custody cases such as this because it does not involve
the “state-required breakup” of a family. In termination
cases, the natural parent and the state are the parties to
the action. To protect the parental interest from im-
proper state intrusion, the Legislature requires the
state to prove by clear and convincing evidence that at
least one statutory ground for termination exists.
Hence, the state must show that the natural parent is
unfit.
In custody cases, by contrast, the state does not
initiate the proceedings in which the natural parent’s
rights are at stake. Rather, custody determinations in
cases such as this merely give “recognition to a family
unit already in existence....”
43
Under such circum-
stances, “[w]hatever might be required in other situa-
tions, we cannot say that the State was required in this
situation to find anything more than that [its decision
was] in the ‘best interests of the child.’ ”
44
Finally, we note that a natural parent’s fitness is an
intrinsic component of a trial court’s evaluation of the
best interest factors in MCL 722.23.
45
Therefore, al-
though we hold that due process does not require a
fitness determination where the statute does not man-
date it, we observe that fitness is an inextricable com-
ponent of the court’s inquiry.
For example, MCL 722.23(f) to (g) require the trial
court to compare the “moral fitness” and the “mental
and physical health” of the parties. These factors reflect
43
Quilloin, 434 US at 255.
44
Id.
45
Anno, 31 ALR3d at 1196 (noting that the probable reason courts
have often used the fitness and best interest inquiries interchangeably is
because of “the fact that both doctrines seek the same basic objective
from two different approaches”).
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the legislative determination that concerns about pa-
rental fitness are of paramount importance in custody
determinations. Therefore, MCL 722.25(1) uses the
clear and convincing evidence standard to safeguard the
constitutionally protected fundamental rights of fit
custodial parents, as identified in Troxel. MCL 722.23,
on the other hand, simultaneously fulfills the legislative
purpose of maintaining the focus of the inquiry on the
best interests of the child.
C. MASON ERRONEOUSLY INTERPRETED MCL 722.25(1)
BY ADDING A DETERMINATION OF FITNESS
We again note, as a preliminary observation, that
MCL 722.25(1) does not refer to fitness of the natural
parent as a prerequisite for applying the statutory
presumption in the parent’s favor. MCL 722.25(1) ap-
plies to all natural parents who are parties in custody
disputes with third persons, not merely fit natural
parents. Nothing in the statute explicitly or implicitly
suggests that the presumption applies only in cases
involving a parent adjudged to be a fit parent. Rather,
we believe that, in enacting the CCA, the Legislature set
forth clear best interest factors in MCL 722.23 that
constitute a de facto evaluation of each individual’s
fitness to raise a child.
46
In doing so, the Legislature
rejected the amorphous fitness/neglect/abandonment
standard outlined in Mason by not including any refer-
ence to that standard.
47
Mason erred by holding that the statutory presump-
46
It is difficult to conceive of a scenario where an unfit parent would
prevail on the best interest factors.
47
Bahr, 60 Mich App at 359 (“Since the Legislature is presumed to be
aware of the long-standing judicial precedent affecting an area in which
an exhaustive codification of the law is undertaken and enacted, we must
conclude the omission was intentional.”); compare MCL 712A.19b(3)
(specifically providing for termination of parental rights in cases of
neglect or abandonment, among other reasons).
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tion in the natural parent’s favor applies only to fit
parents. This was an improper interpretation of Heltzel,
Troxel, and the CCA generally. The statutory presump-
tion in MCL 722.25(1) is “ ‘a presumption of the stron-
gest order,’ ”
48
and one that “does not turn solely on the
question of fitness.”
49
Numerous cases decided since the
CCA was enacted have agreed: the parental presump-
tion controls unless the third party shows by clear and
convincing evidence that custody with the natural par-
ent is not in the best interests of the child.
50
As discussed earlier in this opinion, the parental
presumption has some constitutional provenance,
whereas the custodial environment presumption has
none. This persuades us that the parental presumption
should properly control over the established custodial
environment presumption.
Mason held that the parental presumption controls
with regard to fit parents only because they alone are
constitutionally protected. Mason further held that
unfit parents have the burden “to show, by a prepon-
derance of the evidence, that a change in the estab-
lished custodial environment with the guardian was in
the child’s best interests.”
51
However, Mason and its predecessors created this
new standard out of thin air.
52
In the case before us, the
48
Deel, 113 Mich App at 561-562, quoting Bahr, 60 Mich App at 359.
49
In re Weldon, 397 Mich 225, 276-277; 244 NW2d 827 (1976) (opinion
of C
OLEMAN
, J.), overruled on other grounds in Bowie, supra.
50
Henrikson v Gable, 162 Mich App 248, 253; 412 NW2d 702 (1987);
Stevens, 86 Mich App at 267; Bahr, Mich App at 360.
51
Mason, 267 Mich App at 207.
52
Glover, 159 Mich App at 147 (“We believe that placing the burden of
persuasion on the parent challenging an established custodial environ-
ment is better calculated to elicit the quality of testimony and evidence
required by a trial court in its determination of the best interest of the
child.”). What remains unanswered in Glover is on what basis the Court
272 484 M
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Legislature has provided us with two standards that
irreconcilably conflict. Rather than resolve the conflict
by divining a new standard, as Mason did, we believe
that the better course is to decide which of the two
presumptions controls.
We are convinced that the parental presumption
must control. We are persuaded of this (1) by the fact
that, whereas the parental presumption has some con-
stitutional provenance, the established custodial envi-
ronment presumption does not; (2) by caselaw inter-
preting the tension between MCL 722.25(1) and MCL
722.27(1)(c); and (3) by the lack of reference to fitness
in the CCA. The Court is unwilling to restrict the
parental presumption absent clear evidence from the
Legislature that a restriction was intended. Moreover,
the CCA’s notable silence regarding fitness, abandon-
ment, or neglect of children suggests these words
should not be read into the statute.
The statutory presumption favoring natural parents
is not contravened merely because the statute provides
greater protection for parental rights than Troxel man-
dated as a constitutional matter. Mason’s contrary
holding is contradictory to the weight traditionally
afforded to the parental presumption.
53
rests this questionable proposition and why, in any event, that determi-
nation justified the invention of a new standard. See Rummelt, 196 Mich
App at 496 (“For the reasons stated therein, we agree with this Court’s
decision in Glover.”).
53
Mason’s holding altered the burden of proof in that it essentially
applied the best interests of the child standard to disputes between unfit
natural parents and third-party custodians, in contravention of the
language of MCL 722.25(1). Mason, 267 Mich App at 207; see footnote 37
of this opinion.
Five years after the enactment of the CCA, the Court of Appeals in
Bahr rejected the exact argument accepted by Mason. Bahr first noted
that, before the enactment of the CCA, the best interests of the child were
served by awarding custody to the natural parent over a third
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Because the parental presumption in MCL 722.25(1)
satisfies the constitutional standards mandated for fit
parents, no justification existed for Mason to restrict
that presumption only to fit parents. Nothing in Troxel
can be interpreted as precluding states from offering
greater protection to the fundamental parenting rights
of natural parents, regardless of whether the natural
parents are fit. This rule applies here.
Defendant also argues that Mason’s arbitrary and
subjective fitness standard, and the trial court’s equally
party “unless it could be affirmatively proven that the parent was unfit
to have custody or had neglected or abandoned the child.” Bahr,60Mich
App at 359. After concluding that the Legislature had deliberately
omitted from the CCA any fitness determination in such cases, Bahr
plainly stated that “[r]ebuttal of the presumption in favor of parental
custody no longer requires proof of parental unfitness, neglect or
abandonment.” Id. at 360.
Numerous Court of Appeals cases decided after Bahr cited it favorably
for the proposition that, in custody cases between a natural parent and a
third party, the CCA requires no fitness determination. Stevens,86Mich
App at 267; Henrikson, 162 Mich App at 253 (1987). Oddly, Mason quoted
the same language from Bahr concerning the lack of need for a fitness
determination under the CCA. Mason noted that “some jurisdictions,
including Michigan, have moved away from using the ‘parental unfitness’
or ‘extraordinary circumstances’ standards and focus on a placement’s
detriment to the child.” Mason, 267 Mich App at 201. The Court also
noted that the parental presumption in MCL 722.25(1) applies “in all
custody disputes between parents and an agency or a third person.” Id.
(emphasis in original). Yet immediately after this discussion, Mason
ignored its own correct statement of law about the statutory presumption
in MCL 722.25(1). Instead, it denied the parental presumption favoring
the natural father on the basis of the fact that he was not entitled to the
fundamental constitutional right to raise his child. Id. at 203.
We recognize that Mason was not bound by Bahr and its progeny
under MCR 7.215(J)(1) because they were decided before 1990. However,
we refer to Bahr here because it correctly stated Michigan custody law
after the enactment of the CCA; Mason did not. We agree with the
interpretation of the CCA promulgated by the Bahr line of cases. We
further agree that the Rummelt line of cases must be rejected on the basis
of Heltzel’s reasoning and for the reasons discussed herein.
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subjective application of that standard in this case,
violated her Fourteenth Amendment
54
due process
rights. She claims that, because the Mason standard
does not utilize objective criteria for evaluating paren-
tal fitness, it lacks procedural protections sufficient to
protect her due process rights. Given our holding that
Mason improperly limited the parental presumption in
MCL 722.25(1), we find it unnecessary to reach defen-
dant’s constitutional argument.
We conclude that Mason erred by reading a fitness
requirement into the parental presumption in MCL
722.25(1). The statute is entirely silent on the issue of a
parent’s fitness.
55
Nothing in the statute or the CCA
generally
56
suggests that parental fitness is a prerequi-
site to entitlement to the parental presumption in MCL
722.25(1). Because Mason’s holding was neither consti-
tutionally mandated nor consistent with the statute,
Mason is hereby overruled.
D. ADDITIONAL CONCERNS
Justice C
ORRIGAN
’s partial concurrence raises a number
of issues that we believe deserve a response regarding the
54
US Const, Am XIV.
55
Justice C
ORRIGAN
acknowledges as much, post at 295, but brushes this
“bare observation” aside. We disagree with Justice C
ORRIGAN
’s contention
that we fail to “adequately consider the various proceedings at which a
parent’s fitness may be questioned[.]” Post at 295. To the contrary, we
explicitly address such proceedings by holding that a natural parent
whose parental rights were previously terminated or are suspended
cannot initiate an action under the CCA. See pp 275-277 of this opinion.
56
Only one provision in the CCA refers to parental fitness at all. MCL
722.27b requires a court considering whether to grant visitation time to
grandparents to give deference to a fit parent’s decision to deny such
time. This provision was amended in 2004 in response to our decision in
DeRose v DeRose, 469 Mich 320; 666 NW2d 636 (2003). DeRose held that
the former version of MCL 722.27b was unconstitutional under Troxel.
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scope of this opinion. We offer the following observations
to more explicitly address what this opinion does not do:
(1) This case deals with custody actions initiated
under the CCA involving both the parental presump-
tion in MCL 722.25(1) and the established custodial
environment presumption in MCL 722.27(1)(c). This
opinion should not be read to extend beyond CCA cases
that involve conflicting presumptions or to cases that
involve parental rights generally but are outside the
scope of the CCA.
(2) This opinion does not create any new rights for
parents. The United States Supreme Court decisions
regarding the constitutional rights of parents previously
discussed in this opinion provide guidance that informs
our analysis. This opinion does not magically grant par-
ents additional rights or a constitutional presumption in
their favor. It does not grant unfit parents constitutional
rights to their children other than due process rights.
(3) Parents may not bring actions under the CCA and
invoke the parental presumption in MCL 722.25(1) as
an end run around previous custody determinations.
We agree with Justice C
ORRIGAN
’s conclusion that
[p]rinciples of collateral estoppel generally prevent a
party from relitigating an issue already established in a
prior proceeding.”
57
This Court has long recognized the
applicability of these principles to probate court orders
such as the guardianship orders in this case.
58
Subse-
quently, we reiterated that “orders of probate courts
have the force and effect of judgments and are res
judicata of the matters involved and cannot be attacked
collaterally.”
59
57
Post at 296.
58
Chapin v Chapin, 229 Mich 515; 201 NW 530 (1924).
59
In re Ives, 314 Mich 690, 696; 23 NW2d 131(1946).
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Therefore, a parent whose rights have been termi-
nated or suspended cannot initiate an action for custody
under the CCA because it would amount to a collateral
attack on the earlier proceedings. A termination order,
by its nature, finds that custody with the natural parent
is not in the child’s best interests. A parent’s only
recourse in such cases is to appeal the order. A guard-
ianship order, similarly, suspends a parent’s parental
rights and grants those rights in the child, including a
right to physical and legal custody, to the guardian
under MCL 700.5215. Thus, defendant in this case
would have been collaterally estopped from initiating a
custody action under the CCA. A parent’s recourse
under these circumstances is to file a motion to termi-
nate the guardianship.
60
In sum, collateral estoppel principles provide a suffi-
cient basis to preclude parents from initiating an action
for custody under the CCA in order to circumvent valid
court orders affecting custody.
61
60
MCL 700.5208.
61
Given this limitation, we reject Justice C
ORRIGAN
’s assertion that we
are allowing a court to sweep “findings and admissions [of unfitness]
under the rug....”Post at 298. Under Justice C
ORRIGAN
’s approach, a
parent who is deemed unfit by a court or admits being unfit at any time
is never entitled to benefit from the parental presumption in MCL
722.25(1). Thus, defendant in this case is not entitled to the presumption
in her favor because “defendant’s unfitness was clearly established at
prior proceedings.” Post at 298. Justice C
ORRIGAN
’s approach is contrary
to Fletcher’s mandate that a court consider up-to-date information “and
any other changes in circumstances” when making custody determina-
tions. Fletcher, 447 Mich at 889.
Our position is not that Fletcher precludes a circuit court from taking
into account a past finding of parental unfitness. Post at 297 n 13. Surely,
when a court evaluates the best interest factors in MCL 722.23, a past
finding may still be considered. Determinations of past, admitted unfit-
ness are inevitably reconsidered when there are ongoing proceedings
before the court. Indeed, as Justice C
ORRIGAN
observes, “a parent’s fitness
or custody rights are governed by an ongoing proceeding—such as the
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IV. PLAINTIFF’S BURDEN OF PROOF ON REMAND
Given our conclusion that Mason incorrectly inter-
preted MCL 722.25(1), we remand this case for reevalu-
ation under the correct legal standards.
62
On remand,
the circuit court shall conduct a new best interests
guardianship proceeding here....”Post at 284-285. We do not ourselves
opine on whether “defendant’s lack of fitness here diminished....”Post
at 297 n 13. We simply observe that the judge overseeing the guardian-
ship proceedings acknowledged such a progression in his increasingly
generous visitation orders.
Thus, our main disagreement with Justice C
ORRIGAN
’s conclusion is
the extent to which she would make a prior finding of unfitness largely
dispositive in resolving the conflicting presumptions in the CCA. Here,
plaintiffs relied primarily on defendant’s past conduct as a basis for
opposing her requests for increased visitation. Nevertheless, the court
overseeing the guardianship proceedings repeatedly ruled in defendant’s
favor. During those proceedings, defendant was fulfilling increasing
duties to her children and gaining increased visitation time. By comply-
ing with what the court required of her, defendant properly attempted to
overcome the prior finding of unfitness that plaintiffs rely on heavily in
this custody action. Indeed, had defendant filed a motion to terminate the
guardianship under MCL 700.5208, her admission of unfitness would
have been relevant. But the relevance would have been only to the extent
that it still affected the best interests of the children. Justice C
ORRIGAN
states that defendant’s current fitness may certainly be given weight
during the best interests analysis. Post at 297 n 13. Yet she would make
the initial admission of unfitness dispositive of which presumption
controls when an established custodial environment has been established
and “when a parent’s lack of fitness continues over time....”Post at 298
n 13. This case is an apt illustration of how such an analysis begs the
question. Is the establishment of the established custodial environment
due to the parent’s unfitness sufficient in itself? It would appear not,
because the parent’s lack of fitness must also “continue[] over time.” In
this case, has defendant’s “lack of fitness,” diminished as the probate
court found it to be, extended over a long enough time? How much time
must a parent be unfit, and how unfit must he or she be?
62
Defendant’s remaining arguments claim that the circuit court
abused its discretion by finding her to be an unfit parent and in
evaluating the best interests factors in MCL 722.23. Given that we are
remanding this case for a new best interests hearing, we decline to
address these arguments.
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hearing in which it must consider all relevant, up-to-
date information.
63
At that hearing, the court shall
apply MCL 722.25(1) in defendant’s favor. The court
shall not grant custody to plaintiffs unless plaintiffs
demonstrate by clear and convincing evidence that
custody with defendant does not serve the children’s
best interests.
64
In order to make this showing, plain-
tiffs must prove that “all relevant factors, including the
existence of an established custodial environment and
all legislatively mandated best interest concerns within
[MCL 722.23], taken together clearly and convincingly
demonstrate that the child’s best interests require
placement with the third person.”
65
V. CONCLUSION
We hold that the established custodial environment
presumption in MCL 722.27(1)(c) must yield to the
parental presumption in MCL 722.25(1). The parental
presumption can be rebutted only by clear and convinc-
ing evidence that custody with the natural parent is not
63
Fletcher, 447 Mich at 889.
64
Under the CCA, the court is not required to award custody to either
party. Thus, if plaintiffs do not meet the requisite burden of proof in this
custody action, the court has the authority to keep the guardianship
intact without awarding custody to either party. That is, on remand, the
court could do a number of different things, including, but not limited to:
(a) “[a]ward the custody of the child[ren] to 1 or more of the parties
involved or to others,” MCL 722.27(1)(a); (b) maintain the status quo; or
(c) “[t]ake any other action considered to be necessary,” MCL
722.27(1)(e). As noted earlier in this opinion, defendant mother cannot
circumvent the existing guardianship order by initiating a custody action.
Rather, the only action she may initiate is to terminate the guardianship
under MCL 700.5208.
65
Heltzel, 248 Mich App at 27. In this way, the established custodial
environment is still given weight in the court’s analysis and ultimate
decision. Therefore, we do not believe this holding “minimize[s] the
importance that the CCA’s terms place on the established custodial
environment....”Post at 294 n 11.
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in the best interests of the child. We also hold that MCL
722.25(1) satisfies constitutional scrutiny under Troxel.
Due process does not require a threshold determination
of parental fitness in custody cases. The Court of
Appeals decision in Mason v Simmons is overruled. We
reverse the judgment of the Court of Appeals and
remand this case to the circuit court for a new best
interests hearing. We do not retain jurisdiction. Finally,
defendant’s motion to preserve the confidentiality of
the psychiatric evaluation report is granted. The report
shall be removed from the copies of the plaintiffs’
appendix and placed under seal.
C
AVANAGH
,Y
OUNG
,M
ARKMAN
, and H
ATHAWAY
, JJ., con-
curred with K
ELLY
, C.J.
W
EAVER
,J.(concurring in part and dissenting in
part). I join in the reversal of the Court of Appeals result
and in the remand of this case to the trial court for a
new best interests hearing for the reasons stated in the
following parts of Chief Justice K
ELLY
’s majority opin-
ion and Justice C
ORRIGAN
’s partially concurring and
partially dissenting opinion:
With respect to Chief Justice K
ELLY
’s majority opin-
ion, I join in parts I, II, III(B), and III(D).
With respect to Justice C
ORRIGAN
’s partially concur-
ring and partially dissenting opinion, I join in part III,
with the exception of footnote 12.
C
ORRIGAN
,J.(concurring in part and dissenting in
part). I concur in parts I, II, III(B), and III(D) of the
majority opinion. I agree with the majority’s conclusion
that “fit” parents benefit from a constitutional pre-
sumption that they will “act in the best interests of
their children.” Troxel v Granville, 530 US 57, 68; 120
S Ct 2054; 147 L Ed 2d 49 (2000) (plurality opinion of
280 484 M
ICH
247 [July
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PINIONS BY
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EAVER
,J.,
AND
C
ORRIGAN
,J.
O’Connor, J.); see ante at 262. I further agree that,
when prior court proceedings govern child custody—
such as child protective proceedings under the juvenile
code, MCL 712A.1 et seq., or, as in this case, guardian-
ship proceedings under part 2 of article V of the Estates
and Protected Individuals Code (EPIC), MCL 700.5201
et seq.—these proceedings generally have preclusive
effect and the prior court has superior jurisdiction. A
parent cannot circumvent these proceedings by seeking
custody under the Child Custody Act (CCA), MCL
722.21 et seq. See ante at 276.
I do not agree with the majority that the constitu-
tional presumption in favor of fit parents imbues the
presumption in MCL 722.25(1) of the CCA—which
applies to all parents, not just fit ones—with height-
ened constitutional meaning so that it always prevails
over the mandate concerning established custodial en-
vironments in MCL 722.27(1)(c). I do agree that consti-
tutional considerations require the presumption in
§ 5(1) to predominate in the case of a fit parent.
However, when a parent’s lack of fitness has been
previously established or admitted and a third party
has an established custodial environment with the
child, that parent should not benefit from the presump-
tion in § 5(1). Section 7(1)(c) governs instead.
I. PROCEDURAL BACKGROUND
As the majority explains in part, ante at 251-256, this
case began in 2002 when defendant and her husband—
who were drug-addicted, unemployed, and unable to
care for their four young children—voluntarily relin-
quished custody of the children to plaintiffs. Plaintiffs,
who are the children’s aunt and uncle, had already been
caring for the children intermittently. In November
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ORRIGAN
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2002, defendant and her husband petitioned the court
1
to appoint plaintiffs as limited guardians for the chil-
dren, stating: “We are currently in active addiction to
crack cocaine and are unable to care for our children
until we seek treatment.” Accordingly, they voluntarily
suspended their parental rights and the court estab-
lished a limited guardianship with plaintiffs. Plaintiffs
thus gained rights and responsibilities akin to those of
a parent with regard to the children under MCL
700.5215, which states, in most pertinent part: “A
minor’s guardian has the powers and responsibilities of
a parent who is not deprived of custody of the parent’s
minor and unemancipated child....” See MCL
700.5206(4).
2
1
The majority observes that all proceedings in this case took place in
the Oakland Circuit Court although there were two separate cases: the
probate court guardianship case and the circuit court CCA case. It is
helpful to note that the Family Division of the Oakland Circuit Court and
the Oakland County Probate Court share jurisdiction over selected
matters pursuant to a concurrent jurisdiction plan authorized by MCL
600.406. Thus, although probate courts generally have jurisdiction over
guardianship proceedings and circuit courts have jurisdiction over CCA
proceedings, all the proceedings between the parties in this case effec-
tively took place before the same court. Even absent a concurrent
jurisdiction plan, the probate judge assigned to a guardianship matter
must be assigned to serve as the circuit court judge in a subsequent CCA
case brought by the guardians. MCL 722.26b(5). Here Judge Eugene A.
Moore presided over the guardianship proceedings but later disqualified
himself in the CCA matter. The CCA proceedings were ultimately
presided over by Judge Linda S. Hallmark. Judges Moore and Hallmark
are both Oakland County Probate Court judges assigned to the Family
Division of the Oakland Circuit Court.
2
By design, limited guardianships give parents the opportunity to
correct whatever conditions led them to give up custody of their children
and to regain custody upon proof of compliance with a limited guardian-
ship placement plan. MCL 700.5205(2). A parent has the right to petition
to terminate the limited guardianship under MCL 700.5208 and, if the
parent has “substantially complied” with the placement plan, the court
must terminate the guardianship. MCL 700.5209(1). A limited guardian
also may not seek full custody of a child under the CCA if the parent
282 484 M
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Defendant could have regained custody of the children
by substantially complying with her placement plan, in
which she promised to seek drug treatment and provide a
drug-free household for the children. Instead, she and her
husband continued their drug use and became involved in
crime. Although they petitioned to terminate the limited
guardianship in May 2003, the court denied their petition
and, instead, ordered them to continue drug treatment,
verify their employment, and maintain more regular visi-
tation with the children. Nonetheless, they returned to
crime. They were arrested. After being released on bail,
they stole a car and fled the police.
In June 2003, plaintiffs petitioned the court to appoint
them full guardians.
3
Plaintiffs cited their fear for the
children’s safety and stated that the police advised them
to seek a full guardianship and suspension of parental
visits. The court-appointed guardian ad litem for the
children investigated and confirmed that defendant and
her husband were still using drugs, had lost their jobs,
were not paying rent, and had fled the police. On June 17,
2003, the court conducted a hearing on plaintiffs’ petition.
Neither parent appeared and their whereabouts were
unknown. The court suspended their visitation rights
until further order. On July 16, 2003, the court appointed
plaintiffs full guardians of the children.
Defendant and her husband were subsequently rear-
rested and incarcerated. Defendant apparently skipped
bail again after her second release. She was ultimately
substantially complies with the placement plan. MCL 722.26b(2). Before
establishing a limited guardianship, however, the parent must also be
informed that, if he fails without good cause to comply with the
placement plan, his parental rights may be terminated under the juvenile
code. MCL 700.5205(2).
3
MCL 700.5204(3) empowers a limited guardian to seek appointment as
a full guardian as long as the petition is not based merely on the suspension
of parental rights incident to the limited guardianship petition.
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convicted and imprisoned in August 2004. In July 2005,
after her release from prison, defendant sought visita-
tion with her children. By this time she had not seen
them in over two years. The court restored her visita-
tion rights in November 2005 and defendant began
paying a small amount of child support. After several
months of successful visits and regular child support
payments, the court ordered expanded, unsupervised
parenting time to begin in May 2006, with overnight
visits at defendant’s home in Indiana to begin in July
2006. By this time, the children had been living with
plaintiffs in Michigan for about four years.
In May 2006, apparently prompted by the order
increasing defendant’s visitation rights, plaintiffs exer-
cised their rights under MCL 722.26b to seek custody
under the CCA and to stay the guardianship proceed-
ings. MCL 722.26b(4). Defendant counterclaimed for
custody under the CCA. The court employed the now-
outdated rubric in Mason v Simmons, 267 Mich App
188; 704 NW2d 104 (2005), to declare defendant unfit
and award custody to plaintiffs.
4
II. SUPERIOR JURISDICTION OF PRIOR PROCEEDINGS
First, I agree that the guardianship proceedings here
precluded defendant from separately seeking custody
under the CCA. Ante at 276. Generally, when two courts
have concurrent jurisdiction, the first court that ac-
quired jurisdiction retains it until the matter is fully
resolved. See Schell v Schell, 257 Mich 85, 88; 241 NW
223 (1932).
5
Accordingly, if a parent’s fitness or custody
4
I concur in the majority’s conclusion that Mason improperly created
a preponderance of the evidence standard “out of thin air,” ante at 272,
where the text of the CCA includes no such standard.
5
The longstanding rule concerning concurrent jurisdiction was aptly
described in Schell where, as here, the circuit court was called upon to
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rights are governed by an ongoing proceeding—such as
the guardianship proceeding here or a child protective
proceeding under the juvenile code—the parent may
not separately invoke the circuit court’s jurisdiction by
filing a simultaneous custody action under the CCA.
Because this holding is a crucial element of the
majority opinion, I offer an example to illustrate the
importance of this jurisdictional rule. Child protective
proceedings under the juvenile code are designed to
protect children from abuse and neglect—often by tem-
porarily removing them from their parents’ custody
under emergency conditions—while aiding parents to
rectify unfit conditions and regain custody of their
children. The purposes of these proceedings would be
nullified if a parent could avoid them by regaining
custody in a separate proceeding under the CCA.
The juvenile code protects children who, among
other things, are subjected to abuse, neglect, or unfit
living conditions. MCL 712A.2(b).
6
The code empowers
decide a custody issue. Significantly, in Schell, prior probate court
proceedings concerning the child appear to have been abandoned and
effectively closed. Accordingly, this Court held:
As stated by Mr. Justice C
OOLEY
in [Maclean]v.Wayne Circuit
Judge, 52 Mich. 257 [259; 18 NW 396 (1884)]:
“It is a familiar principle that when a court of competent
jurisdiction has become possessed of a case, its authority contin-
ues, subject only to 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.”
The circuit court and the probate court, juvenile division, had
concurrent jurisdiction. The former court having acquired it first,
retained it.[Schell, 257 Mich at 88 (emphasis added).]
6
The most relevant provisions of MCL 712A.2(b) confer court jurisdic-
tion over a child:
(1) Whose parent or other person legally responsible for the
care and maintenance of the juvenile, when able to do so, neglects
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the Department of Human Services (DHS) to petition
for temporary removal of a child from his parent’s home
for these reasons. The court may authorize the petition
“upon a showing of probable cause that 1 or more of the
allegations in the petition are true and fall within the
provisions of section 2(b)....”MCL712A.13a(2). If the
court orders the child’s removal from the parent’s
custody and orders the child into court or state custody,
a process begins during which the DHS works with the
parent, if possible, to restore custody with the parent.
7
As I will explain further, this process is statutorily
designed to take up to one year. See MCL 712A.19a(1).
Within 30 days of the child’s removal, and every 90 days
thereafter, the DHS must provide service plans detail-
ing its efforts and the services provided to prevent
removal or to rectify the conditions that caused re-
moval, as well as the efforts to be made and services to
be offered to facilitate the child’s return to his parent, if
appropriate. MCL 712A.18f. The court generally re-
views the case within 182 days of the child’s removal
and every 91 days thereafter. MCL 712A.19(3). At each
or refuses to provide proper or necessary support, education,
medical, surgical, or other care necessary for his or her health or
morals, who is subject to a substantial risk of harm to his or her
mental well-being, who is abandoned by his or her parents,
guardian, or other custodian, or who is without proper custody or
guardianship....
(2) [Or w]hose home or environment, by reason of neglect,
cruelty, drunkenness, criminality, or depravity on the part of a
parent, guardian, nonparent adult, or other custodian, is an unfit
place for the juvenile to live in.
7
Various protections address the parent’s due process rights through-
out the proceedings, including rights to notice, to participate in all
proceedings, see MCL 712A.19(5)(c), MCL 712A.19a(4)(c), and MCL
712A.19b(2)(c), and to an attorney at each stage of the proceedings, MCL
712A.17c(4) and (5).
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review hearing, the court must evaluate the parent’s
compliance with the service plan, MCL 712A.19(6) and
(7), and may order additional services or actions, MCL
712A.19(7)(a).
If a child remains outside his home, the court must
conduct a permanency planning hearing within one
year of the child’s removal. MCL 712A.19a(1). At that
hearing, if the court determines that the “return of the
child to his or her parent would not cause a substantial
risk of harm to the child’s life, physical health, or
mental well-being, the court shall order the child re-
turned to his or her parent.” MCL 712A.19a(5). If the
court determines that the parent poses a substantial
risk to the child, it may order the DHS to initiate
proceedings to terminate parental rights. MCL
712A.19a(6). If termination is not in the child’s best
interests, the court may also consider alternative place-
ment plans, including a guardianship. MCL
712A.19a(7). Crucially, the burden of proof is elevated
to clear and convincing evidence only at this final stage,
the termination of parental rights proceeding. MCL
712A.19b(3).
Because of the different evidentiary standards in the
CCA and the juvenile code, a parent could subvert child
protective proceedings if the Schell rule did not man-
date superior jurisdiction in the child protective pro-
ceedings. This is because, as noted, the requisite condi-
tions for removal of a child from his parent’s custody
under MCL 712A.2(b) of the juvenile code must be
proved by “a showing of probable cause,” MCL
712A.13a(2). But, particularly under the majority’s
interpretation of the CCA, the DHS or a third party
custodian can prevent a parent from regaining custody
under the CCA only by rebutting the parental presump-
tion by clear and convincing evidence. MCL 722.25(1).
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Because the CCA creates a higher burden for a third
party seeking custody, the parent could regain custody
under the CCA; while the initial conditions warranting
emergency removal may have been supported by prob-
able cause, the DHS may not yet have gathered enough
evidence to meet the heightened clear and convincing
evidence standard of the statutory presumption in MCL
722.25(1), as would be necessary to prevent the parent
from immediately regaining custody. Thus, if the parent
could seek custody under the CCA, the Legislature’s
carefully crafted child protective process—which both
protects children and ultimately benefits willing
parents—could be nullified.
A related problem involving guardianships would
arise if a parent could invoke the court’s jurisdiction
under the CCA although the parent’s rights were eli-
gible for termination under the juvenile code. Indeed,
although the court may conclude that a child should not
be returned to his parent because the parent poses an
ongoing substantial risk of harm, the court may place
the child with a permanent guardian in lieu of termi-
nating the parent’s rights. MCL 712A.19a(6) and (7)(c).
That guardianship may continue until the child is
emancipated, MCL 712A.19a(7)(c), and the guardian
gains all the traditional parent-like rights and duties
inherent in a guardianship established under EPIC,
MCL 712A.19a(8). If the natural parent could nonethe-
less obtain custody under the CCA, the purposes and
terms of these pre-termination guardianships would be
obviated. Particularly under the majority’s rule, the
parent could file under the CCA to shift the burden to
the guardian, thereby requiring the guardian to prove
by clear and convincing evidence that placement with
the parent is not in the child’s best interests. The
court’s determination during the child protective pro-
ceedings that the parent posed a significant harm to his
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child would become irrelevant and the guardian would
be forced to litigate in defense of his appointment. In
addition to subverting the statutory scheme in favor of
pre-termination guardianships, this result likely would
cause voluntary guardians to decide against accepting
guardianship appointments.
8
In sum, important, practical reasons undergird the
Schell rule and the principles of collateral estoppel
addressed by the majority. Once a court attains juris-
diction of a child’s custody under the juvenile code or
EPIC, as the first court to attain jurisdiction over these
matters, it retains jurisdiction until the proceeding is
closed. Schell, 257 Mich at 88. A parent cannot simply
file separately for custody under the CCA and regain
custody by invoking the parental presumption. Permit-
ting a parent to do so would undermine the very
purposes of the other statutory schemes addressing
custody and child welfare, not to mention the havoc and
confusion in courts attempting to properly protect
children and adjudicate parental rights under the cor-
rect statutes.
Finally, the CCA itself confirms this result by provid-
ing a single, explicit exception to the normal application
of the Schell rule. MCL 722.26b, which grants a guard-
ian standing to seek custody under the CCA, provides
the only apparent context in which a CCA action may
override decisions of another court with ongoing juris-
diction over the parties’ rights to the children.
9
MCL
8
Indeed, EPIC’s guardianship schemes could be effectively nullified,
generally, if a parent could avoid ongoing guardianship proceedings by
simply filing for custody under the CCA.
9
To be clear, although the CCA generally cannot be used to override
other proceedings, the CCA is often properly employed incident to other
proceedings when appropriate. For example, custody actions may “arise[]
incidentally from another action in the circuit court or an order or
judgment of the circuit court,” MCL 722.27(1), including a divorce action.
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722.26b(4) explicitly states that, when a guardian seeks
custody, “guardianship proceedings concerning that
child in the probate court are stayed until disposition of
the child custody action” and permits an ensuing circuit
court order to supersede probate court orders concern-
ing the guardianship of the child. The CCA does not, in
turn, permit a parent with the limited rights inherent
in guardianship proceedings to sue for custody or stay
the guardianship proceedings. Rather, as the majority
notes, a parent’s recourse would lie in his explicit right
to petition the probate court to terminate the guardian-
ship under MCL 700.5208.
III. SECTIONS 5(1) AND 7(1)(c) OF THE CHILD CUSTODY ACT
Although I agree with the majority on the point just
discussed, I disagree with the majority’s resolution of
the apparent conflict between MCL 722.25(1) and MCL
722.27(1)(c) as it applies here, where the guardians
invoked MCL 722.26b. I certainly agree with the major-
ity, ante at 257, that the “fundamental liberty interest
of natural parents in the care, custody, and manage-
ment of their child does not evaporate simply because
they have not been model parents or have lost tempo-
rary custody of their child to the State.” Santosky v
Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599
(1982). And thus, to satisfy constitutional due process
standards, the state “must provide the parents with
fundamentally fair procedures.” Id. at 754; see also ante
at 257. But, when a parent’s unfitness has been estab-
lished, as it was here, fundamentally fair procedures do
not require the court to give that parent the full benefit
of the parental presumption. Rather, a parent’s rights
to a child are limited when he has failed in his duties to
that child. In the majority’s own words, neither Troxel
nor the majority opinion “grant[s] unfit parents consti-
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tutional rights to their children other than due process
rights.” Ante at 276 (emphasis added).
Thus, the presumption that a parent will act in his
child’s best interests is a conditional presumption that
applies only “so long as a parent adequately cares for” his
child. Troxel, 530 US at 68 (opinion by O’Connor, J.).
Indeed, the parental right derives from a parent’s “ ‘high
duty’ ” to care for his children. Id. (citation omitted).
10
Accordingly, when a parent fails to care adequately for
his child—and particularly when third parties carry out
10
In accord, historically this Court has recognized that parental rights
do not derive from mere biology or exist independently from parental
duties. As we explained in In re Gould, 174 Mich 663, 669-670; 140 NW
1013 (1913):
The law recognizes the rights of the father because it recognizes
the natural duties and obligations of the father. The father’s right
to and authority over his child are secure and inviolable so long as
he properly discharges the correlative duties.
But the absolute power of the father over his infant children, to
treat them as property and dispose of them as he sees fit because
they are his, which was once recognized under the R oman law of
patria potestas and in the codes of early nations, no longer obtains.
Paternal authority is subordinate to the supreme power of the
State. Every child born in the United States has, from the time it
comes into existence, a birthright of citizenship which vests it with
rights and privileges, entitling it to governmental protection—
“And such government is obligated by its duty of protection, to
consult the welfare, comfort, and interests of such child in regu-
lating its custody during the period of its minority.” Mercein v.
People, 25 Wend. (N. Y.) 64 (35 Am. Dec. 653).
The power of parental control, though recognized as a natural
right and protected when properly exercised, is by no means an
inalienable one. When the “right of custody” is involved between
respective claimants for a child, the courts, though in the first
instance recognizing prima facie rights of relationship, in the final
test are not strictly bound by demands founded upon purely
technical claims or naked legal rights, but may and should, in
making the award, be governed by the paramount consideration of
what is really demanded by the best interests of the child.
[Emphasis added.]
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the parent’s high duty in his stead—the automatic
presumption in favor of the parent no longer strictly
applies. Therefore, although fit parents benefit from a
constitutional presumption that they will “act in the
best interests of their children,” Troxel, 530 US at 68;
ante at 262, the constitutional presumption in favor of
fit parents does not imbue the presumption in § 5(1) of
the CCA with heightened constitutional meaning so
that it always prevails over the mandate concerning
established custodial environments in § 7(1)(c) without
regard to a parent’s fitness.
MCL 722.25(1) states that if a child custody dispute
“is between the parent or parents and an agency or a
third person, the court shall presume that the best
interests of the child are served by awarding custody to
the parent or parents, unless the contrary is established
by clear and convincing evidence.” But the powers of
the circuit court in any action under the CCA are also
governed by MCL 722.27, which circumscribes the
orders a court may enter regarding a complaint for
custody. MCL 722.27(1) states, in pertinent part:
Thus Gould emphasized that a child’s rights to be protected from
abuse and neglect inform and limit a parent’s rights. As we reiterated
50 years later in Herbstman v Shiftan, 363 Mich 64, 67-68; 108 NW2d
869 (1961):
A child also has rights, which include the right to proper and
necessary support; education as required by law; medical, surgical
and other care necessary for his health, morals, or well-being; the
right to proper custody by his parents, guardian, or other custo-
dian; and the right to live in a suitable place free from neglect,
cruelty, drunkenness, criminality, or depravity on the part of his
parents, guardian, or other custodian. It is only when these rights
of the child are violated by the parents themselves that the child
becomes subject to judicial control. A parent having violated the
rights of a child forfeits his right to the custody, control and
upbringing of that child; and when the safety and best interests of
the child demand it, the rights of the child must be protected by the
court. [Emphasis added.]
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If a child custody dispute has been submitted to the
circuit court as an original action under this act or has
arisen incidentally from another action in the circuit court
or an order or judgment of the circuit court, for the best
interests of the child the court may do 1 or more of the
following:
(a) Award the custody of the child to 1 or more of the
parties involved or to others and provide for payment of
support for the child, until the child reaches 18 years of
age....
(b) Provide for reasonable parenting time of the child by
the parties involved, by the maternal or paternal grandpar-
ents, or by others, by general or specific terms and condi-
tions....
(c) Modify or amend its previous judgments or orders for
proper cause shown or because of change of circum-
stances.... The court shall not modify or amend its
previous judgments or orders or issue a new order so as to
change the established custodial environment of a child
unless there is presented clear and convincing evidence
that it is in the best interest of the child. The custodial
environment of a child is established if over an appreciable
time the child naturally looks to the custodian in that
environment for guidance, discipline, the necessities of life,
and parental comfort. The age of the child, the physical
environment, and the inclination of the custodian and the
child as to permanency of the relationship shall also be
considered.
(d) Utilize a guardian ad litem or the community re-
sources in behavioral sciences and other professions in the
investigation and study of custody disputes and consider
their recommendations for the resolution of the disputes.
(e) Take any other action considered to be necessary in
a particular child custody dispute.
MCL 722.27(1)(c) clearly mandates that the court
“shall not modify or amend its previous judgments or
orders or issue a new order so as to change the estab-
lished custodial environment of a child unless there is
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presented clear and convincing evidence that it is in the
best interest of the child.”
11
(Emphasis added.) Thus,
§ (7)(1)(c) expressly deprives the court of the power to
change the established custodial environment absent
the requisite showing by clear and convincing evidence
that such a change is in the child’s best interest.
12
Yet
the majority directs circuit courts to ignore this man-
11
The majority opines that “no constitutional protections for third
persons underlie the established custodial environment presumption in
MCL 722.27(1)(c).” Ante at 263. This may be so. But we should not
minimize the importance that the CCA’s terms place on the established
custodial environment, which serves a child’s needs. Indeed, an “estab-
lished custodial environment” is defined in terms similar to those used to
describe a child’s “rights and privileges entitling it to governmental
protection,” which obligate the government “to consult the welfare,
comfort, and interests of such child in regulating its custody during the
period of its minority.” Gould, 174 Mich at 670 (quotation marks and
citation omitted). An established custodial environment exists under
§ 7(1)(c) “if over an appreciable time the child naturally looks to the
custodian in that environment for guidance, discipline, the necessities of
life, and parental comfort.” Compare the rights of a child listed by
Herbstman, 363 Mich at 67: “proper and necessary support; education as
required by law; medical, surgical, and other care necessary for his
health, morals, or well-being; the right to proper custody by his parents,
guardian, or other custodian....”
12
My conclusions here stem from my willingness to agree, for purposes
of this analysis, with the majority’s assumption that MCL 722.25(1) and
MCL 722.27(1)(c) “irreconcilably conflict” when a parent seeks custody
from a third party with an established custodial environment, ante at
273; both provisions appear to mandate action from the court, stating
respectively that “the court shall presume that the best interests of the
child are served by awarding custody to the parent,” § 5(1), and that
“[t]he court shall not ...change the established custodial environment of
a child unless there is presented clear and convincing evidence that it is
in the best interest of the child,” § 7(1)(c). (Emphasis added.) Yet because
§ 7 broadly circumscribes the circuit court’s power in all cases under the
CCA, I would be more inclined to hold that the prohibition on changing
an established custodial environment in § 7(1)(c) clearly controls, as a
textual matter, whenever the terms of both § 5(1) and § 7(1)(c) apply in a
given case. I do not agree with the majority that, through § 5(1), the
Legislature clearly intended to “offer[] greater protection [than is re-
quired by the constitution] to the fundamental parenting rights of
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date in all cases where any natural parent—except one
whose parental rights were previously terminated or
suspended, ante at 277—seeks custody from a third
party with an established custodial environment.
But in light of the strong mandate expressed in
§ 7(1)(c), and because the constitutional parental pre-
sumption applies only to fit parents, I would hold that
the presumption in § 5(1) prevails over the mandate in
§ 7(1)(c) by necessity only when a fit parent seeks
custody from a third person with an established custo-
dial environment. Where an unfit parent is concerned,
no statutory or constitutional reason exists to simply
ignore § 7(1)(c) if a third person has an established
custodial environment.
Further, because the constitutional parental pre-
sumption applies only to fit parents, a parent’s fitness
remains relevant. I acknowledge that the CCA does not
refer to fitness. See ante at 273. But this bare observa-
tion does not adequately consider the various proceed-
ings at which a parent’s fitness may be questioned—
indeed, it does not consider the very proceedings that
likely led to a custodial environment being established
with a third party custodian in the first place.
Troxel equated a fit parent with one who “adequately
cares for his or her children.” Troxel, 530 US at 68
(opinion by O’Connor, J.). It illustrated the presumption
in favor of fit parents as “a presumption that parents
possess what a child lacks in maturity, experience, and
capacity for judgment required for making life’s difficult
decisions.” Id. at 68 (quotation marks and citation omit-
natural parents, regardless of whether the natural parents are fit.” Ante
at 274. Nevertheless, my observations concerning the textual dominance
of 7(1)(c) are largely inapposite to my overall conclusion; I am persuaded
that,ifafit parent’s custody interests are opposed to those of a third
party with an established custodial environment, the parent should
benefit from a parental presumption as a matter of constitutional right.
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ted). Various proceedings call upon courts to make
findings, or call upon parents to make admissions,
counter to these presumptions in order to fulfill the
state’s duties to protect its children. The child protec-
tive proceedings described above and guardianship pro-
ceedings like this case are good examples of proceedings
that, by their nature, may establish a parent’s unfit-
ness. Principles of collateral estoppel generally prevent
a party from relitigating an issue already established in
a prior proceeding. See Storey v Meijer, Inc, 431 Mich
368, 373 n 3; 429 NW2d 169 (1988). Indeed, as the
majority observes, this Court has “long recognized” the
applicability of collateral estoppel, including to “pro-
bate courts orders such as the guardianship orders in
this case.” Ante at 276, citing Chapin v Chapin, 229
Mich 515; 201 NW 530 (1924). Such orders “are res
judicata of the matters involved and cannot be attacked
collaterally.” In re Ives, 314 Mich 690, 696; 23 NW2d
131 (1946). Further, permitting a parent to avoid past
findings or admissions of unfitness and nonetheless
gain a constitutional advantage despite unfitness clearly
runs the risk of endangering the child and compromis-
ing state laws aimed at upholding the state’s duties to
its child citizens. Most significant to our purposes, if a
parent’s lack of fitness has been established, there is no
longer a constitutional reason to ignore the mandate in
MCL 722.27(1)(c) in favor of MCL 722.25(1). Accord-
ingly, I conclude that in cases where a parent’s lack of
fitness was either determined or admitted in a prior
proceeding, the parent cannot later claim fitness and
benefit from the presumption in § 5(1) in a proceeding
under the CCA.
13
13
The majority states that my approach is contrary to Fletcher v
Fletcher, 447 Mich 871, 889; 526 NW2d 889 (1994), which required the
trial court on remand to consider “up-to-date information” and “(any
other changes in circumstances)” when awarding custody. See ante at 277
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n 61. I have no objection to the Fletcher Court’s requirement, which
applied to the trial court’s consideration of the best interests factors in
MCL 722.23. But I disagree with the majority’s assertion that Fletcher
precludes a trial court from taking into account a past finding of
unfitness when determining whether the presumption in MCL 722.25(1)
must prevail over the mandate in MCL 722.27(1)(c) as a constitutional
matter. Fletcher addressed only the best interests determination on
remand in light of the fact that circumstances may change during the
appellate process. See Fletcher, 447 Mich at 888-889. Indeed, it
expressly prohibited reconsideration of the threshold question whether
any party had an established custodial environment for purposes of
applying § 7(1)(c). Id. at 889 n 10 (“We do not suggest that the events
which have taken place during the appellate process give rise to an
‘established custodial environment’ that...alters the burden of proof in
favor of the party who has enjoyed custody during the appeal.”). In no
way did Fletcher suggest that the threshold issue of a parent’s past,
admitted unfitness should be reconsidered over time in order to alter the
burden of proof.
The majority further states that I would “make the initial admission
of unfitness dispositive” although defendant “was fulfilling increasing
duties to her children and gaining increased visitation time.” Ante at 278
n 61. First, I would note that—just as the majority asserts that the
established custodial environment may be given weight when the court
considers the best interests factors, ante at 279 n 65—defendant’s
current, apparently increasing ability to care for her children should
certainly be given weight during this process. Second, to the extent that
the majority suggests that a past admission of unfitness should not be
dispositive because defendant’s lack of fitness here diminished and
should be reconsidered over time, I note that defendant admitted her
unfitness in 2002, had no contact with her children at all for approxi-
mately two years during 2003-2005, was released from prison in July
2005, and had been back in contact with her children for only about six
months when plaintiffs filed their complaint for custody in May 2006. By
this time, the children had been living with plaintiffs in Michigan for
about four years. Accordingly, I emphasize my conclusion that a past
admission of unfitness is not dispositive in itself. Rather, by its terms the
mandate in § 7(1)(c)—which circumscribes the court’s power to “[m]odify
or amend its previous judgments or orders” and specifically to “modify or
amend its previous judgments or orders or issue a new order so as to
change the established custodial environment”—controls only when a
prior admission of unfitness led to additional circumstances and court
orders creating an established custodial environment with a third party.
Indeed, by definition, the prohibition on changing the established custo-
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Here, defendant and her husband admitted unfitness
in 2002 when they sought the limited guardianship be-
cause they were jobless, addicted to crack, and unable to
care for their children. They could have regained custody
of the children by substantially complying with their
placement plan. Instead, they relapsed, continued their
involvement with crime, and failed to appear at the
hearing on plaintiffs’ petition to establish a full guardian-
ship.
14
Under these circumstances, defendant’s unfitness
was clearly established at prior proceedings. Indeed, de-
fendant admitted her unfitness and willfully forwent her
statutorily granted right to regain custody despite the
admission. Defendant further could have challenged the
results of the guardianship proceedings by appealing, but
she did not do so. The court should not now be directed to
sweep such findings and admissions under the rug by
applying a constitutional presumption in favor of fit
parents in an action involving the very people who cared
for defendant’s children in the face of her parenting
failures. For these reasons I conclude that when, as here,
a third party establishes a custodial environment after
proof of a parent’s unfitness, the procedure for changing
an established custodial environment mandated by MCL
722.27(1)(c) controls.
dial environment in § 7(1)(c) applies only when a parent’s lack of fitness
continues over time so that third parties take on the parental role and
establish a custodial environment—such an environment is established
onlyif“over an appreciable time the child naturally looks to the custodian
in that environment for guidance, discipline, the necessities of life, and
parental comfort.” MCL 722.27(1)(c) (emphasis added).
14
Plaintiffs aptly observe that defendant’s lack of fitness was the direct
cause of their appointment as guardians—a status that bestows rights
akin to parental rights. MCL 700.5215. They further note that defen-
dant’s absence from her children’s lives thus created the very established
custodial environment with plaintiffs that defendant now seeks to
delegitimize by applying the constitutional presumption in favor of fit
parents.
298 484 M
ICH
247 [July
O
PINION BY
C
ORRIGAN
,J.
IV. CONCLUSION
In conclusion, I agree with the majority that a fit
parent who properly seeks custody under the CCA
benefits from the parental presumption in MCL
722.25(1). But, contrary to the majority, I would con-
clude that, where a parent’s lack of fitness is estab-
lished, MCL 722.27(1)(c) controls if a third party has an
established custodial environment for the children.
Further, if parental or custody rights are governed by
other proceedings, a parent is precluded from using the
CCA as an end run around such proceedings; rather, the
first court to gain jurisdiction over these matters re-
tains jurisdiction. The CCA provides a single exception
to this rule in MCL 722.26b, which plaintiffs properly
invoked in this case and which permits guardians to
seek custody although guardianship proceedings are
ongoing. But, finally, I agree with the majority that even
when a custody action is properly filed under § 6b, as
here, the circuit court is not bound to award custody to
any party. Instead, it has broad discretion to act “for the
best interests of the child....”MCL722.27(1). Accord-
ingly, the court in its discretion may dismiss plaintiffs’
custody action in light of plaintiffs’ apparent attempt to
subvert the ongoing guardianship proceedings in which
defendant was fulfilling increasing duties to her chil-
dren and gaining increased visitation time.
2009] H
UNTER V
H
UNTER
299
O
PINION BY
C
ORRIGAN
,J.
PETERSEN v MAGNA CORPORATION
Docket Nos. 136542 and 136543. Argued January 22, 2009 (Calendar No.
7). Decided July 31, 2009.
Rick Petersen sought workers’ compensation benefits under the
Worker’s Disability Compensation Act (WDCA), MCL 418.101 et
seq., for an injury he suffered while working for codefendant
Koleasco, a trucking company that had hired codefendant BCN
Transportation Services to administer its employee benefits. The
magistrate ruled that both BCN and Koleasco were liable for the
plaintiff’s workers’ compensation benefits and that plaintiff’s
counsel was entitled to an attorney fee of 30 percent of the
plaintiff’s unpaid medical bills under MCL 418.315(1). The Work-
ers’ Compensation Appellate Commission (WCAC) affirmed both
rulings. The Court of Appeals initially denied leave to appeal, but
the Supreme Court remanded for consideration as on leave
granted on the issues of the division of defendants’ liabilities and
the assessment of attorney fees. 477 Mich 871 (2006). On remand,
the Court of Appeals, W
HITBECK
,C.J.(W
HITE
, J., concurring, and
Z
AHRA
, J., concurring in part and dissenting in part), affirmed the
WCAC’s assessment of attorney fees against defendants, holding
that attorney fees could be imposed on employers and their
insurers under MCL 418.315(1). Unpublished opinion per curiam
of the Court of Appeals, issued April 17, 2008 (Docket Nos. 273293
and 273294). The Supreme Court granted the defendants’ appli-
cation for leave to appeal. 482 Mich 994 (2008).
In an opinion by Chief Justice K
ELLY
, joined by Justice C
AVANAGH
,
and an opinion by Justice H
ATHAWAY
, joined by Justice W
EAVER
, the
Supreme Court held:
The term “prorate” in MCL 418.315(1) applies exclusively to
employers and their insurance carriers.
Chief Justice K
ELLY
, joined by Justice C
AVANAGH
, stated that the
Legislature intended that the term “prorate” in the last sentence of
MCL 418.315(1) applies only to employers and their insurance
carriers. Chief Justice K
ELLY
recommended that the Court modify
and expand the principles set forth in Robinson v Detroit, 462 Mich
439 (2000), governing when the Court should depart from the
principle of stare decisis. A stare decisis analysis should always begin
300 484 M
ICH
300 [July
with a presumption that upholding precedent is the preferred
course of action, followed by a determination whether a compelling
justification exists to overturn the precedent. A lower level of
deference should be afforded to cases that represent a recent
departure from the traditional notions of stare decisis. Chief
Justice K
ELLY
rejected the test for statutory ambiguity espoused in
Lansing Mayor v Pub Service Comm, 470 Mich 154 (2004), as
unworkable and having no basis in Michigan law. She concluded
that the last sentence of MCL 418.315(1) is ambiguous because it
is capable of being understood by reasonably well-informed per-
sons in two or more different senses, and consequently fails to
clearly indicate the parties among whom attorney fees may be
prorated. Chief Justice K
ELLY
also concluded that the American
rule of attorney fees does not apply to MCL 418.315(1).
Justice H
ATHAWAY
, joined by Justice W
EAVER
, concurred in Chief
Justice K
ELLY
’s lead opinion to the extent that it concluded that
the term “prorate” in MCL 418.315(1) applies exclusively to
employers and their insurance carriers. Justice H
ATHAWAY
wrote
separately to state that MCL 418.315(1), when read as a whole, is
not ambiguous.
Affirmed.
Justice C
ORRIGAN
, dissenting, fully joined Justice M
ARKMAN
’s
dissenting opinion and part II(B) of Justice Y
OUNG
’s dissenting
opinion.
Justice Y
OUNG
, dissenting, fully joined part IV of Justice M
ARK-
MAN
’s dissenting opinion. Justice Y
OUNG
further dissented from the
majority’s conclusion that the term “prorate” in MCL 418.315(1)
applies only to employers and their insurance carriers and from
the conclusion in Chief Justice K
ELLY
’s lead opinion that a work-
ers’ compensation claimant may never be deemed responsible for
a portion of the attorney fees incurred. Justice Y
OUNG
stated that
a workers’ compensation claimant is ordinarily responsible for
bearing the costs of the claimant’s portion of the litigation,
including attorney fees. MCL 418.315(1) serves as an exception to
this general rule, permitting a workers’ compensation magistrate
to prorate attorney fees, at the contingent fee rate paid by the
claimant, between the claimant and the employer when the
employer refuses to pay reasonable and needed medical expenses
for an injury arising out of and in the course of employment.
When, as in this case, there are legitimate legal and factual
disputes to be resolved with respect to disputed workers’ compen-
sation claims, the disputes must be resolved at a hearing before the
magistrate, who must determine whether medical treatment was
needed, reasonable, and related to a personal injury arising out of
2009] P
ETERSEN V
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AGNA
C
ORPORATION
301
and in the course of employment. While employers should be
discouraged from wrongly denying medical benefits, there is no
basis for assessing attorney fees against an employer for correctly
denying claims to which a claimant is not entitled, or from seeking
a resolution of arguable legal or factual disputes that call into
question the employer’s obligation to pay. This case should be
remanded to the magistrate for an assessment of the issue of
attorney fees under the correct standard.
Justice M
ARKMAN
, joined by Justice C
ORRIGAN
, dissenting, would
reverse the Court of Appeals and hold that MCL 418.315(1) does
not allow a magistrate to assess an employee’s attorney fees
against the employer. Rather, MCL 418.315(1) only allows a
magistrate to divide an employee’s attorney fees among medical
providers, and only when the magistrate has ordered the employer
to make direct payment for unpaid medical expenses to those
providers. In reaching a contrary conclusion, the Chief Justice
adopted an understanding of “ambiguity” that facilitates arbitrary
and unpredictable judicial decision-making, in which judges give
meaning to the law with little regard for the actual words of the
Legislature, in place of traditional judicial decision-making in
which such words are paramount.
W
ORKERS
’C
OMPENSATION —
W
ORKER
’
S
D
ISABILITY
C
OMPENSATION
A
CT —
A
TTOR-
NEY
F
EES —
P
RORATION OF
A
TTORNEY
F
EES
.
The term “prorate,” as used in the statutory provision that gives
workers’ compensation magistrates the authority to prorate attor-
ney fees, applies exclusively to employers and their insurance
carriers (MCL 418.315[1]).
Evans & Portenga (by John A. Braden) for Rick H.
Petersen.
Robert W. Macy (Daryl Royal, of counsel) for Magna
Corporation and Midwest Employers Casualty Com-
pany.
Mark A. Kidder for BCN Transportation Services,
Inc., and TIG Insurance Company.
Amici Curiae:
Martin L. Critchell for the Michigan Workers’ Com-
pensation Placement Facility.
302 484 M
ICH
300 [July
Steven C. Hess, Richard F. Zapala, and Michael T.
Reinholm for Accident Fund Insurance Company of
America.
Lacey & Jones (by Gerald M. Marcinkoski) for the
Michigan Self-Insurers’ Association.
Kerr, Russell and Weber, PLC (by Patrick J. Haddad,
Daniel J. Schulte, and Jonathan S. Berg), for the
Michigan State Medical Society.
Kluczynski, Girtz & Vogelzang (by Duncan A. Mc-
Millan) for St. Paul Fire & Marine Insurance Company.
Dickinson Wright PLLC (by Joseph A. Fink and Robert
W. P owell) for Blue Cross and Blue Shield of Michigan.
Donald M. Fulkerson for the Michigan Association
for Justice.
Miller Johnson (by Stephen R. Ryan and Marcus W.
Campbell) for the Michigan Health and Hospital Asso-
ciation.
Martin L. Critchell for the American Insurance
Association.
K
ELLY
, C.J. We granted leave to appeal in this case to
determine the parties against whom attorney fees may
be prorated under MCL 418.315(1). We conclude that
the term “prorate” in MCL 418.315(1) applies only to
employers and their insurance carriers. Accordingly, we
affirm the judgment of the Court of Appeals.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case involves a dispute over workers’ compen-
sation benefits. Plaintiff Rick Petersen began working
2009] P
ETERSEN V
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AGNA
C
ORPORATION
303
O
PINION BY
K
ELLY
, C.J.
for codefendant Koleasco, a trucking company, in Feb-
ruary 1997. In March 1997, Koleasco hired codefendant
BCN Transportation Services (BCN), a human re-
sources “employee leasing” company, to administer its
employee benefits.
In November 1997, plaintiff was injured when he fell
from a flatbed truck while securing a load of Christmas
trees. After the accident, he underwent surgery on his
right foot and applied for workers’ compensation ben-
efits. The following year, he required treatment for back
pain, which his treating physician believed was caused
by the November 1977 fall.
Several questions were taken to a workers’ compen-
sation magistrate: (1) who was plaintiff’s employer at
the time of his injury, BCN or Koleaseco? (2) was
Midwest Employers Casualty Company the relevant
insurer for workers’ compensation purposes? (3) was
plaintiff disabled? and (4) if so, which injury caused his
disability? The magistrate bifurcated these issues into
two trials.
In the first trial, the magistrate ruled that plaintiff
was a Koleaseco employee on the date of his injury
despite the fact that BCN paid his wages. Thus, because
BCN had stipulated that it was plaintiff’s employer, the
magistrate ruled that both BCN and Koleaseco were
plaintiff’s employers and both were liable for plaintiff’s
workers’ compensation benefits. On appeal, the Work-
ers’ Compensation Appellate Commission (WCAC) af-
firmed that ruling.
In the second trial, the magistrate considered (1) was
plaintiff’s counsel entitled to an attorney fee of 30
percent of plaintiff’s medical bills unpaid by defendant?
and (2) who was responsible for paying plaintiff’s future
medical and weekly benefits? With respect to plaintiff’s
attorney fees, the magistrate ruled:
304 484 M
ICH
300 [July
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PINION BY
K
ELLY
, C.J.
[A]lthough Midwest...waspaying the plaintiff weekly
benefits, it refused to pay medical bills related to [plain-
tiff’s] injury.... The total amount of the medical bills
incurred...which defendant refused to pay is
$153,448.54. I find that plaintiff’s counsel is entitled to a 30
percent attorney fee for these unpaid medical bills under
Section 315(1).
With respect to whether BCN or Koleaseco was respon-
sible for paying plaintiff’s ongoing medical and weekly
benefits, the magistrate ruled that BCN and its insur-
ance carrier, Midwest, were primarily responsible.
Again, both parties appealed to the WCAC, which
affirmed the award of attorney fees, observing:
While the magistrate failed to explicitly so find, in this
case... defendant knew of the medical bills in question
well in advance of trial, and simply refused to pay them
claiming they were not work related. Once the magistrate
so found, given that prior knowledge and refusal to pay, the
action in awarding attorney fees was within his discretion
and hence proper.
Magna Corporation, another “employee leasing” com-
pany insured by Midwest, and Midwest sought leave to
appeal both WCAC orders. The Court of Appeals ini-
tially denied the applications.
1
We remanded the case
for consideration as on leave granted.
2
On remand, the Court of Appeals affirmed the
WCAC.
3
The Court found that competent evidence
supported the factual findings of both the magistrate
1
Petersen v Magna Corp, unpublished order of the Court of Appeals,
entered April 11, 2006 (Docket No. 266037); Petersen v Magna Corp,
unpublished order of the Court of Appeals, entered April 11, 2006
(Docket No. 266177).
2
Petersen v Magna Corp No 1, 477 Mich 871 (2006); Petersen v Magna
CorpNo2, 477 Mich 871 (2006).
3
Petersen v Magna Corp, unpublished opinion per curiam of the Court
of Appeals, issued April 17, 2008 (Docket Nos. 273293 and 273294), at 8.
2009] P
ETERSEN V
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AGNA
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ORPORATION
305
O
PINION BY
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ELLY
, C.J.
and the WCAC with respect to plaintiff’s employment.
Regarding the assessment of attorney fees, the Court
held that § 315(1) is ambiguous because it does not
identify the entity against which the magistrate may
assess such fees.
4
The Court concluded, “[W]here the remainder of
[§ 315(1)] discusses the employer and/or the [insurance]
carrier, it follows that the attorney fees are to be calcu-
lated or divided between those entities. The plain lan-
guage of the statute does not mandate that the health care
provider assume responsibility for any portion of those
fees.”
5
We granted leave to appeal to consider the proper
interpretation of § 315(1).
6
II. MCL 418.315(1)
The proper interpretation and application of a statute
presents a question of law that we review de novo.
7
MCL
418.315(1), part of the Worker’s Disability Compensa-
tion Act (WDCA),
8
provides in pertinent part:
The employer shall furnish, or cause to be furnished, to an
employee who receives a personal injury arising out of and in
the course of employment, reasonable medical, surgical, and
hospital services and medicines, or other attendance or treat-
ment recognized by the laws of this state as legal, when they
are needed....After 10 days from the inception of medical
care as provided in this section, the employee may treat with
a physician of his or her own choice by giving to the employer
the name of the physician and his or her intention to treat
with the physician. The employer or the employer’s carrier
may file a petition objecting to the named physician selected
4
Id.at9.
5
Id.at10.
6
Petersen v Magna Corp, 482 Mich 994 (2008).
7
Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008).
8
MCL 418.101 et seq.
306 484 M
ICH
300 [July
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PINION BY
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ELLY
, C.J.
by the employee and setting forth reasons for the objection. If
the employer or carrier can show cause why the employee
should not continue treatment with the named physician of
the employee’s choice,...the...magistrate may order that
the employee discontinue treatment with the named physi-
cian or pay for the treatment received from the physician ....
If the employer fails, neglects, or refuses so to do, the
employee shall be reimbursed for the reasonable expense paid
by the employee, or payment may be made in behalf of the
employee to persons to whom the unpaid expenses may be
owing, by order of the workers’ compensation magistrate.
The workers’ compensation magistrate may prorate attorney
fees at the contingent fee rate paid by the employee. [Emphasis
added.]
A. STATUTORY INTERPRETATION
This is a case of statutory interpretation. The pri-
mary goal of such interpretation is to give effect to the
intent of the Legislature.
9
The first step in ascertaining
such intent is to focus on the language of the statute
itself. If statutory language is unambiguous, the Legis-
lature is presumed to have intended the meaning ex-
pressed in the statute.
10
The words of a statute provide
the most reliable evidence of the Legislature’s intent,
and as far as possible, effect should be given to every
phrase, clause, and word in a statute.
11
If the statutory
language is certain and unambiguous, judicial construc-
tion is neither required nor permitted, and courts must
apply the statute as written.
12
However, when statutory language is ambiguous, this
Court has consistently held that a court construing it
9
Brown v Detroit Mayor, 478 Mich 589, 593; 734 NW2d 514 (2007).
10
Id.
11
Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119
(1999) (quotation marks and citations omitted).
12
Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995).
2009] P
ETERSEN V
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AGNA
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ORPORATION
307
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PINION BY
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ELLY
, C.J.
may go beyond the plain language of the statute.
13
In
fact, where the language leaves the statute’s meaning
ambiguous, it is the duty of the courts to construe it,
giving it an interpretation that is reasonable and sen-
sible.
14
Therefore, a finding of ambiguity has important
interpretive ramifications.
In this case, the Court of Appeals held that the last
sentence of § 315(1) is ambiguous in that it is unclear
who is responsible for an injured employee’s attorney
fees. Thus, the threshold question is whether, in light of
the plain language of the entire provision, the last
sentence of § 315(1) is ambiguous.
Section 315(1) gives magistrates the discretionary au-
thority to prorate attorney fees at the contingent fee rate
paid by the employee. “Prorate” means “to divide, distrib-
ute, or calculate proportionately.”
15
In § 315(1), the term
“prorate” could reasonably apply to employers, their
insurance carriers, health care providers, employees
seeking workers’ compensation benefits, or to any com-
bination of them. Moreover, neither § 315 as a whole
nor any other provision of the WDCA indicates the
parties to whom a division or distribution of attorney
fees applies.
I agree with the Court of Appeals conclusion that the
final sentence of § 315(1) applies only to employers and
their insurance carriers. This is because that interpreta-
tion harmonizes the final sentence with the remainder of
§ 315(1). The final sentence does not stand alone.
16
It
13
Sun Valley, supra at 236, citing Luttrell v Dep’t of Corrections, 421
Mich 93; 365 NW2d 74 (1984).
14
Crary v Marquette Circuit Judge, 197 Mich 452, 454; 163 NW 905
(1917).
15
Random House Webster’s College Dictionary (2001).
16
Under the doctrine of noscitur a sociis, the meaning of an unclear
word or phrase should be determined by the words immediately sur-
308 484 M
ICH
300 [July
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PINION BY
K
ELLY
, C.J.
must be construed in the context of § 315(1) in its
entirety and harmonized with the statute’s other pro-
visions to satisfy the purpose intended by the Legisla-
ture.
17
Here is how that construction operates. Section
315(1) concerns employer liability to pay medical ben-
efits to workers injured in the course of employment.
The statute as a whole provides a process for employers
and their insurance carriers to object to the medical
treatment that an injured employee seeks. Hence, “pro-
rate” in the final sentence of § 315(1), when read with
the remainder of the statute, applies to the parties who
might contest the payment of medical benefits: employ-
ers and their insurance carriers.
18
This interpretation
unifies the last sentence of § 315(1) with the remainder
of the statute.
I now consider the Legislature’s use of the word
“may” with respect to prorating attorney fees. The
word “may” is permissive in nature. As applied to
“prorate,” “may” indicates that magistrates have dis-
cretion in determining whether to award attorney fees.
Hence, magistrates are allowed to award attorney fees,
but they are not required to do so.
19
rounding it. People v Couzens, 480 Mich 240, 250; 747 NW2d 849 (2008).
17
Farrington v Total Petroleum, Inc, 442 Mich 201, 209; 501 NW2d 76
(1993).
18
Justice M
ARKMAN
would hold medical providers responsible for a
proration of attorney fees. In support of this claim, he cites MCL 418.827,
which provides a basis for nonparty employers to recover through the
efforts of an employee’s attorney pursuing a third-party liability action.
Had the Legislature intended a scheme in § 315 similar to that provided
in § 827, it could have used similar or identical language. However, it did
not do so.
19
The Legislature often vests discretion in magistrates by using the
word “may.” Other provisions of the WDCA that vest discretion in
magistrates by using the word “may” include MCL 418.321, MCL
418.335, MCL 418.345, and MCL 418.835.
2009] P
ETERSEN V
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AGNA
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ELLY
, C.J.
Likewise, the word “may” bears on whether a prora-
tion must occur if a magistrate does award attorney
fees. I would hold that the use of the word “may” grants
magistrates the discretion to prorate attorney fees
among employers and their insurance carriers. Should a
magistrate determine that only one of those parties is
liable, the magistrate may impose attorney fees against
only that party. Conversely, should the magistrate find
multiple parties liable, fees may be prorated accord-
ingly. This interpretation affords the phrase “may pro-
rate” its full meaning.
20
Nonetheless, as evidenced by the dissents in this
case, competing reasonable interpretations of § 315(1)
exist when its language alone is considered.
21
In fact,
the words of § 315(1), in light of the entire statute and
the WDCA, do not clearly indicate the parties to whom
a proration of attorney fees applies. As a consequence, I
am unable to ascertain the intent of the Legislature
based solely on the language of the statute. I turn next
to the question whether § 315(1) is ambiguous.
1. LANSING MAYOR v PUB SERVICE COMM
This Court’s most recent pronouncement on the
20
Contrary to Justice M
ARKMAN
’s contention, this interpretation does not
“read[] an authorization into the statute....”Post at 356. Nothing in the
definition of “prorate” indicates that one party cannot be apportioned zero
liability. A “division” or “distribution” does not require that both parties
subject to that division receive an assessment of liability. For example,
liability could be allocated on a 50-50, 75-25, or 100-0 basis, depending on the
magistrate’s allocation of fault and the number of parties involved.
21
Justice M
ARKMAN
claims that I “withdraw[] from the process of
statutory interpretation once other interpretations are presented.” Post
at 365. This is incorrect. Section 315(1) refers to multiple parties and
lacks an indication of which of them is subject to a proration of attorney
fees. No other provision in the WDCA resolves the question. From that I
conclude that the statute is capable of being understood by reasonably
well-informed persons in two or more different senses. See infra at 331.
310 484 M
ICH
300 [July
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PINION BY
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ELLY
, C.J.
proper standard for discerning whether statutory lan-
guage is ambiguous was espoused in Lansing Mayor v
Pub Service Comm.
22
In that case, the Court examined
MCL 247.183 to determine whether it required a com-
pany to obtain local government consent before begin-
ning pipeline construction. Critical to the Court’s
analysis was its discussion of the proper method for
discerning statutory ambiguity.
The Court stated that statutory provisions are not
ambiguous unless one “irreconcilably conflicts” with
another or unless a term is “equally susceptible to more
than a single meaning.”
23
Applying this definition, the
Lansing Mayor majority observed that “[o]nly a few
provisions are truly ambiguous.”
24
Lansing Mayor’s definition of “ambiguity” is unsup-
ported by any Michigan law whatsoever, having been
derived, as it were, from thin air.
25
Rusinek v Schultz,
Snyder & Steele Lumber Co is the only Michigan case
predating L ansing Mayor that employs the language
“equally susceptible.”
26
However, Rusinek did not state
that language is ambiguous only if it is equally suscep-
tible to different interpretations. Instead, Rusinek sim-
ply held that statutes in derogation of common law
must be strictly construed.
27
22
Lansing Mayor v Pub Serv Comm, 470 Mich 154; 680 NW2d 840
(2004).
23
Id. at 166. Since having announced this exceedingly narrow defini-
tion of “ambiguity,” the Court has declined to find any statutory language
ambiguous.
24
Id.
25
See Kelly & Postulka, The fatal weakness in the Michigan Supreme
Court majority’s textualist approach to statutory construction,10TM
Cooley J Prac & Clinical L 287, 289 (2008).
26
Rusinek v Schultz, Snyder & Steele Lumber Co, 411 Mich 502; 309
NW2d 163 (1981).
27
Id. at 507-508.
2009] P
ETERSEN V
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ELLY
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Also unsupported as a threshold for finding ambigu-
ity is the “irreconcilably conflicts with another provi-
sion” language found in Lansing Mayor. The Lansing
Mayor majority cited Klapp v United Ins Group Agency,
Inc
28
for this definition of “ambiguity,” but Klapp sim-
ply states that language is ambiguous when “its provi-
sions are capable of conflicting interpretations.”
29
It
neither requires an irreconcilable conflict nor that the
language be equally susceptible to more than one inter-
pretation. Thus, the two-pronged “equally susceptible”
and “irreconcilably conflicts” test adopted in Lansing
Mayor has no basis in Michigan law.
Furthermore, the Lansing Mayor majority made two
explicit and glaring misstatements of law. First, it cited
Klapp for the proposition that a finding of “ambiguity is
a finding of last resort.”
30
Klapp did not say this.
Instead, Klapp held that the rule of contra proferentem
31
is a rule of last resort. Indeed, Klapp concluded that the
language at issue in that case was ambiguous, without
commenting on whether such a conclusion was a “good”
or a “bad” thing.
32
Wholly absent from Klapp, or other
Michigan law, is any indication that consideration of
whether language is ambiguous should be given only as
a last resort.
Second, I note that the Lansing Mayor majority ex-
pressly rejected the “reasonable minds” standard for
discerning ambiguity as applied by the dissent in that
28
Klapp v United Ins Group Agency, Inc, 468 Mich 459; 663 NW2d 447
(2003).
29
Id. at 467.
30
Lansing Mayor, supra at 165 n 6, citing Klapp, supra at 474.
31
Contra proferentem is a rule of contract interpretation stating that
ambiguities will be construed against the drafter of a contract. 2
Restatement Contracts, 2d, § 206, p 105.
32
I reject the Lansing Mayor majority’s implication that a finding of
ambiguity is inherently a “bad” thing, as it is nothing more than an aid
to statutory construction. See Lansing Mayor, supra at 165-166.
312 484 M
ICH
300 [July
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ELLY
, C.J.
case. The majority stated “[t]hat is not, and has never
been, the standard either for resolving cases or for ascer-
taining the existence of an ambiguity in the law.”
33
How-
ever, the Court cited no authority for this proposition.
In fact, this holding was a blatant misstatement of the
law.
34
Because it was based on a mythical definition of
“ambiguity” and egregious misstatements of law, I
reject L ansing Mayor’s standard for discerning statu-
tory ambiguity.
35
i. STARE DECISIS
36
Because I conclude that Lansing Mayor’s definition
33
Id. at 165-166.
34
See part II(A)(2) of this opinion.
35
Unable to cite caselaw in support of its definition of “ambiguity,” the
Lansing Mayor majority invented its own definition. This definition was
premised on the majority’s implication that a finding of ambiguity is a
“bad” thing because it enables judges to use “presumptive ‘rules of
policy’ ” or “engage in a largely subjective and perambulatory reading of
‘legislative history.’ ” Lansing Mayor, supra at 164-165. These ap-
proaches were disdained because they supposedly allowed judges to
“substitut[e] their own policy preferences for those of the Legislature.”
Id. at 164.
However, the Lansing Mayor majority failed to acknowledge that its
“plain meaning” approach to statutory interpretation is equally suscep-
tible to subjective and arbitrary determinations of legislative intent. For
example, such an approach may lead to the selection of one dictionary
definition among many for a specific term. Lacking may be any sound
explanation why the chosen definition was the one that the Legislature
intended to use. See, e.g., Liberty Hill Housing Corp v Livonia, 480 Mich
44, 56-57; 746 NW2d 282 (2008) (“We conclude that the second meaning
[out of six] is the one the Legislature intended.”). Therefore, this
approach is erroneous in the same way as is an approach that stretches
to find ambiguity where none exists. I agree that it is inappropriate to
inject policy considerations into the reading of an unambiguous statute.
36
I stated in my concurring opinion in Fluor Enterprises, Inc v Dep’t of
Treasury, 477 Mich 170; 730 NW2d 722 (2007), that tools of statutory
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of “ambiguous” is unsupported by Michigan law, I must
now determine whether it ought to remain the control-
ling method for discerning ambiguity in the laws of this
state. I treat the definition as governed by stare decisis
for purposes of analysis.
Stare decisis is short for stare decisis et non quieta
movere, which means “stand by the thing decided and
do not disturb the calm.” Stare decisis attempts to
balance two competing considerations: the need of the
community for stability in legal rules and decisions and
the need of courts to correct past errors.
37
This doctrine
has been part of the American legal landscape since the
country’s formation.
38
Alexander Hamilton wrote that, to “avoid an arbi-
trary discretion in the courts, it is indispensable that
[courts] should be bound down by strict rules and
precedents which serve to define and point out their
duty in every particular case that comes before
interpretation, such as the definition of “ambiguity,” are not “binding” in
the same sense as is the holding in a case. Therefore, they are not entitled
to the same level of deference, and stare decisis does not apply to them.
However, L ansing Mayor purported to “hold” that its definition of
“ambiguity” was the only applicable method for discerning statutory
ambiguity. Furthermore, the Lansing Mayor majority explicitly stated in
Fluor that “our current law [regarding ambiguity] is set forth in
[Lansing Mayor].” Fluor, supra at 177 n 3. Perhaps for those reasons,
this Court, as well as the Court of Appeals, has treated Lansing Mayor’s
definition of “ambiguity” like any other binding precedent. See, e.g.,
People v Gardner, 482 Mich 41, 50; 753 NW2d 78 (2008); Toll Northville,
Ltd v Northville, 480 Mich 6, 15 n 2; 743 NW2d 902 (2008); Batko v Batko,
477 Mich 992 (2007) (M
ARKMAN
, J., dissenting); Casco Twp v Secretary of
State, 472 Mich 566, 591; 701 NW2d 102 (2008); Wayne Co v Wayne Co
Retirement Comm, 267 Mich App 230, 244; 704 NW2d 117 (2005).
Although I disagree with that conclusion, I apply a stare decisis analysis
to the Lansing Mayor definition of “ambiguity” for purposes of analysis.
37
Am Jur, Courts, § 131.
38
The doctrine can be traced back to medieval England. Healy, Stare
decisis as a constitutional requirement, 104 W Va L R 43, 56-62 (2001).
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them....”
39
In the early twentieth century, Justice
(then-Judge) Cardozo wrote that the “labor of judges
would be increased almost to the breaking point if every
past decision could be reopened in every case, and one
could not lay one’s own course of bricks on the secure
foundation of the courses laid by others who had gone
before him.”
40
Although any rule is only as solid as its boundaries are
clear, it was not until recently that this Court formally
established a test to determine when it should depart from
stare decisis. In 2000, in Robinson v Detroit,
41
the Court
held that the first question in deciding whether to
overrule precedent is whether an earlier decision was
wrongly decided.
42
Next, according to Robinson, courts
should review (1) whether the decision defies practical
workability, (2) whether reliance interests would work
an undue hardship if the decision were overturned, and
(3) whether changes in the law or facts no longer justify
the decision.
43
Thus, Robinson enunciated a test pre-
mised on whether the questioned decision was wrongly
decided, to be followed by a three-pronged analysis of
whether stare decisis nonetheless counsels upholding it.
Although the Robinson test was implemented as a
mechanism for determining when a prior decision of the
Court should be upheld, its application has proven
superficial and cursory.
44
In fact, an examination of
39
The Federalist No. 78, p 471 (Alexander Hamilton) (Clinton Rossiter
ed, 1961).
40
Benjamin N. Cardozo, The Nature of the Judicial Process (New
Haven: Yale University Press, 1921), p 149.
41
Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000).
42
Id. at 464.
43
Id.
44
See, e.g., Paige v Sterling Hts, 476 Mich 495, 513; 720 NW2d 219
(2006) (“[W]e need not consider whether changes in the law and facts no
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cases applying the Robinson test demonstrates that not
once has the Court cited it as a basis for upholding a
prior decision.
45
Robinson’s statement that a wrongly
decided case should “invariably” be overruled was a
chilling signal that a conclusion that precedent has
been wrongly decided is sufficient justification for over-
ruling it.
46
These facts alone suffice to show that Robinson is
insufficiently respectful of precedent. Therefore, I
longer justify [the precedent] because [the precedent] itself was never
justified.”), People v Hickman, 470 Mich 602, 610 n 6; 684 NW2d 267
(2004), and Mack v Detroit, 467 Mich 186, 203 n 19; 649 NW2d 47 (2002)
(citing Robinson only as an afterthought in a footnote).
45
See, e.g., Gardner, supra at 61; People v Ream, 481 Mich 223, 240;
750 NW2d 536 (2008); People v Barrett, 480 Mich 125, 138; 747 NW2d 797
(2008); Trentadue v Buckler Automatic Lawn Sprinkler Co, 479 Mich
378, 393; 738 NW2d 664 (2007); Renny v Dep’t of Transportation, 478
Mich 490, 503; 734 NW2d 518 (2007); People v Smith, 478 Mich 292, 315;
733 NW2d 351 (2007); Karaczewski v Farbman Stein & Co, 478 Mich 28,
38; 732 NW2d 56 (2007); Al-Shimmari v Detroit Med Ctr, 477 Mich 280,
297; 731 NW2d 29 (2007); Rowland v Washtenaw Co Rd Comm, 477 Mich
197, 214; 731 NW2d 41 (2007); Haynes v Neshewat , 477 Mich 29, 39; 729
NW2d 488 (2007); Paige, supra at 510; Grimes v Dep’t of Transportation,
475 Mich 72, 87; 715 NW2d 275 (2006); People v Hawthorne, 474 Mich
174, 183; 713 NW2d 724 (2006); Devillers v Auto Club Ins Ass’n, 473 Mich
562, 584; 702 NW2d 539 (2005); People v Schaefer, 473 Mich 418, 434; 703
NW2d 774 (2005); People v Starks, 473 Mich 227, 236; 701 NW2d 136
(2005); Garg v Macomb Mental Health, 472 Mich 263, 285; 696 NW2d 646
(2005); People v Davis, 472 Mich 156, 169; 695 NW2d 45 (2005); Neal v
Wilkes, 470 Mich 661, 667; 685 NW2d 648 (2004); Hickman, supra at 610;
People v Lively, 470 Mich 248, 256; 680 NW2d 878 (2004); People v Moore,
470 Mich 56, 69; 679 NW2d 41 (2004); Hayne v Dep’t of State Police, 468
Mich 302, 314; 664 NW2d 129 (2003); Mack, supra at 203; Sington v
Chrysler Corp, 467 Mich 144, 161; 648 NW2d 624 (2002); People v Petit,
466 Mich 624, 633; 648 NW2d 193 (2002); People v Cornell, 466 Mich 335,
358; 646 NW2d 127 (2002); Robertson v DaimlerChrysler Corp, 465 Mich
732, 756; 641 NW2d 567 (2002); Pohutski v City of Allen Park, 465 Mich
675, 693; 641 NW2d 219 (2002); Nawrocki v Macomb Co Rd Comm, 463
Mich 143, 158; 615 NW2d 702 (2000); Mudel v Great Atlantic & Pacific
Tea Co, 462 Mich 691, 708; 614 NW2d 607 (2000).
46
Robinson, supra at 465.
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would modify it by shifting the balance back in favor of
precedent and expanding on Robinson’s list of factors to
consider in applying stare decisis.
I would hold that a stare decisis analysis should
always begin with the presumption that upholding the
precedent involved is the preferred course of action.
The presumption should be retained until effectively
rebutted by the conclusion that a compelling justifica-
tion exists to overturn the precedent.
Robinson, by contrast, contained no such presump-
tion. Moreover, the Court’s applications of Robinson
suggest that such a presumption was never considered.
Even if it had been initially applied, once a case was
deemed to have been wrongly decided, any presumption
in favor of upholding precedent disappeared.
47
I would
reject this approach and reiterate that a rebuttable
presumption exists in favor of upholding precedent.
48
The question arises what deference should be paid to
cases in which Robinson was used to overturn existing
precedent. I believe that a lower level of deference should
be accorded to these cases because they represent a
departure from the traditional notions of stare decisis. In
47
See, e.g., Paige, supra at 512 n 21 (“[T]he only instances in which we
might decline to overrule [erroneous precedent]... is when it would
produce chaos.”) (emphasis added); Hickman, supra at610n6(noting
that no special justification is necessary to overrule erroneous prece-
dent); People v Nutt, 469 Mich 565, 575, 591; 677 NW2d 1 (2004)
(concluding that the court is compelled to overrule erroneous precedent);
Petit, supra at 633-34 (stating that courts should overturn erroneous
decisions).
48
I recognize and agree with Robinson that stare decisis is “not to be
applied mechanically to forever prevent the Court from overruling earlier
erroneous decisions,” nor is it “an inexorable command.” Robinson,
supra at 463-464. However, I again note that, if our stare decisis analysis
leads to the Court overruling precedent every time it is applied, stare
decisis becomes not an “inexorable command,” but rather a meaningless
exercise.
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Adarand Constructors, Inc v Pena,
49
the United States
Supreme Court expressly addressed the distinction be-
tween consideration of well-established law and cases
representing a recent departure from precedent:
It is worth pointing out the difference between the appli-
cations of stare decisis in this case and in Planned Parent-
hood of Southeastern Pa v Casey. Casey explained how
considerations of stare decisis inform the decision whether to
overrule a long-established precedent that has become inte-
grated into the fabric of the law. Overruling precedent of that
kind naturally may have consequences for “the ideal of the
rule of law.” In addition, such precedent is likely to have
engendered substantial reliance, as was true in Casey itself.
(“[F]or two decades of economic and social developments,
people have organized intimate relationships and made
choices that define their views of themselves and their places
in society, in reliance on the availability of abortion in the
event that contraception should fail.”). But in this case, as we
have explained, we do not face a precedent of that kind,
because Metro Broadcasting itself departed from our prior
cases—and did so quite recently. By refusing to follow Metro
Broadcasting, then, we do not depart from the fabric of the
law; we restore it. We also note that reliance on a case that has
recently departed from precedent is likely to be minimal,
particularly where, as here, the rule set forth in that case is
unlikely to affect primary conduct in any event.
[
50
]
Furthermore, the Court stated:
Our past practice in similar situations supports our
action today. In United States v Dixon, we overruled the
recent case of Grady v Corbin, because Grady “lack[ed]
constitutional roots” and was “wholly inconsistent with
earlier Supreme Court precedent.” In Solorio v United
States, we overruled O’Callahan v Parker, which had
caused “confusion” and had rejected “an unbroken line of
49
Adarand Constructors, Inc v Pena, 515 US 200; 115 S Ct 2097; 132 L
Ed 2d 158 (1995).
50
Id. at 233-234 (citations altered or omitted).
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decisions from 1866 to 1960.” And in Continental TV, Inc v
GTE Sylvania Inc, we overruled United States v Arnold,
Schwinn & Co, which was “an abrupt and largely unex-
plained departure” from precedent, and of which “[t]he
great weight of scholarly opinion ha[d] been critical.” See
also, e.g., Payne v Tennessee (overruling Booth v Maryland,
and South Carolina v Gathers; Monell v New York City Dept
of Social Servs (partially overruling Monroe v Pape, be-
cause Monroe was a “departure from prior practice” that
had not engendered substantial reliance); Swift & Co v
Wickham (overruling Kesler v Department of Public Safety
of Utah, to reaffirm “pre- Kesler precedent” and restore the
law to the “view... which this Court has traditionally
taken” in older cases).
[
51
]
Thus, there is substantial support for applying a de-
creased presumption in favor of precedent when that
precedent itself represents a recent departure from
prior established caselaw.
52
The next inquiry should be whether there exists a
compelling justification for overruling precedent.
53
A com-
51
Id. at 232-233 (citations altered or omitted).
52
Other United States Supreme Court decisions also implicitly acknowl-
edge that precedent that itself overruled recent precedent is entitled to a
reduced presumption. See, e.g., Randall v Sorrell, 548 US 230, 244; 126 S Ct
2479; 165 L Ed 2d 482 (2006) (stating that precedent should only be
overruled in exceptional cases, and that “[t]his is especially true where, as
here, the principle has become settled through iteration and reiteration over
a long period of time”) (emphasis added); United States v IBM, 517 US 843,
856; 116 S Ct 1793; 135 L Ed 2d 124 (1996) (declining to overrule a case
because it had “been controlling precedent for over 80 years”) (emphasis
added); Welch v Texas Dep’t of Highways & Pub Transportation, 483 US
468, 493-494; 107 S Ct 2941; 97 L Ed 2d 389 (1987) (declining to overrule
precedent that had “been adhered to without exception by this Court for
almost a century”) (emphasis added); and CBOCS West, Inc v Humphries,
553 US 442, 452; 128 S Ct 1951; 170 L Ed 2d 864 (2008) (declining to
overturn “the well-embedded interpretation” of the statute at issue).
53
Requiring a compelling justification to overrule precedent is consis-
tent not only with most other jurisdictions, but also with United States
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pelling justification is not a mere belief that a preceden-
tial case was wrongly decided or that the Court, as
currently composed, would have decided the case differ-
ently. Rather, in determining whether a compelling
justification exists, the Court should consider several
evaluative criteria, none of which, standing alone, is
dispositive.
These criteria include, but are not limited to: (1)
whether the rule has proven to be intolerable because it
defies practical workability, (2) whether reliance on the
rule is such that overruling it would cause a special
hardship and inequity, (3) whether related principles of
law have so far developed since the rule was pronounced
that no more than a remnant of the rule has survived, (4)
whether facts and circumstances have so changed, or
come to be seen so differently, as to have robbed the old
rule of significant application or justification, (5) whether
other jurisdictions have decided similar issues in a differ-
ent manner, (6) whether upholding the rule is likely to
result in serious detriment prejudicial to public interests,
and (7) whether the prior decision was an abrupt and
largely unexplained departure from precedent.
Not all of these factors will be applicable in every case.
Nor is there a magic number of factors that must favor
overruling a case in order to establish the requisite com-
pelling justification. Rather, I believe that the conclusion
about whether these factors support finding a compelling
justification should be reached on a case-by-case basis.
ii. APPLICATION OF STARE DECISIS TO LANSING MAYOR
As stated above, I begin my stare decisis analysis
with a presumption in favor of upholding precedent.
Supreme Court precedent. See, e.g., Planned Parenthood v Casey, 505 US
833, 864; 112 S Ct 2791; 120 L Ed 2d 674 (1992).
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Only if a compelling justification exists should the
Court overrule the prior decision. Although Lansing
Mayor was wrongly decided with respect to the defini-
tion of “ambiguity,” this fact does not constitute the
requisite compelling justification to overrule it. Instead,
we must examine additional factors to determine
whether there exists a compelling justification to over-
rule it.
First, I consider whether the method for discerning
ambiguity in Lansing Mayor has proven intolerable
because it defies practical workability. I believe that it
does. Intrinsically, an analytical approach to interpret-
ing statutes on the basis of their “plain meaning,”
where reasonable minds disagree on what that meaning
is, is unworkable. This standard gives judges unfettered
discretion to pick and choose among available “plain
meanings” or dictionary definitions, and thus sheds
little light on what the Legislature intended statutory
language to mean.
54
It also potentially leads to arbitrary
outcomes and injects instability into the law.
Moreover, the mere fact that different justices of this
Court, judges of the Court of Appeals, and trial judges
disagree on the meaning of statutory language suggests
that ambiguity exists. Allowing a judge to pick one
meaning among several equally plausible meanings
without using the rules of statutory construction is
quite simply an exercise in speculation. As Justice
Stevens of the United States Supreme Court stated:
[T]he “minimalist” judge who holds that the purpose of
[a] statute may be learned only from its language retains
greater discretion than the judge who will seek guidance
54
See, e.g., Fluor, supra at189n4(K
ELLY
, J., concurring) (“It is a
bizarre notion that the language of a statute can have only one reason-
able meaning when four separate independent entities have split on its
correct interpretation.”).
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from every reliable source. A method of statutory interpre-
tation that is deliberately uninformed, and hence uncon-
strained, increases the risk that the judge’s own policy
preferences will affect the decisional process.
[
55
]
I share Justice Stevens’s concerns and believe that
Lansing Mayor’s definition of “ambiguity” is inher-
ently unworkable.
I also note that application of Lansing Mayor’s
definition of “ambiguity” has never once led the Court
to find statutory language ambiguous.
56
If a rule of
statutory interpretation inevitably leads to the same
result in each case in which it is applied, such a rule is
55
BedRoc Ltd, LLC v United States , 541 US 176, 192; 124 S Ct 1587;
158 L Ed 2d 338 (2004) (Stevens, J., dissenting) (citations and quotation
marks omitted).
56
See, e.g., Dimmit & Owens Fin, Inc v Deloitte & Touche, 481 Mich
618; 752 NW2d 37 (2008); Ross v Blue Care Network, 480 Mich 153; 747
NW2d 828 (2008); Wesche v Mecosta Co Rd Comm, 480 Mich 75; 746
NW2d 847 (2008); Ernsting v Ave Maria College, 480 Mich 985 (2007);
Trentadue, supra; Lash v Traverse City, 479 Mich 180; 735 NW2d 628
(2007); Brown, supra; Renny v Dep’t of Transportation, 478 Mich 490;
734 NW2d 518 (2007); South Haven v Van Buren Co Bd of Comm’rs, 478
Mich 518; 734 NW2d 533 (2007); Omdahl v West Iron Co Bd of Ed, 478
Mich 423; 733 NW2d 380 (2007); Bukowski v Detroit, 478 Mich 268; 732
NW2d 75 (2007); Karaczewski, supra; Fluor, supra; Rowland, supra;
People v Peals, 476 Mich 636; 720 NW2d 196 (2006); Paige, supra;
Cameron v Auto Club Ins Ass’n, 476 Mich 55; 718 NW2d 784 (2006); Ford
Motor Co v Woodhaven, 475 Mich 425; 716 NW2d 247 (2006); People v
Derror, 475 Mich 316; 715 NW2d 822 (2006); People v Williams, 475 Mich
245; 716 NW2d 208 (2006); People v Yamat, 475 Mich 49; 714 NW2d 335
(2006); Grimes, supra; Michigan v Monaco, 474 Mich 48; 710 NW2d 46
(2006); Ostroth v Warren Regency, GP, LLC, 474 Mich 36; 709 NW2d 589
(2006); Co Rd Ass’n v Governor, 474 Mich 11; 705 NW2d 680 (2005);
Devillers, supra; Reed v Yackell, 473 Mich 520; 703 NW2d 1 (2005); Ayar
v Foodland Distributors, 472 Mich 713; 698 NW2d 875 (2005); Casco
Twp, supra; Elezovic v Ford Motor Co, 472 Mich 408; 697 NW2d 851
(2005); Jarrad v Integon Nat’l Ins Co, 472 Mich 207; 696 NW2d 621
(2005); Roberts v Atkins, 470 Mich 679; 684 NW2d 711 (2004); Neal,
supra; People v Barbee, 470 Mich 283; 681 NW2d 348 (2004); Lively,
supra; People v Laney, 470 Mich 267; 680 NW2d 888 (2004); Lansing
Mayor, supra.
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innately unworkable. Accordingly, this factor weighs
strongly in favor of abrogating the Lansing Mayor
definition.
Second, I examine whether reliance on the rule is
such that overruling it would cause a special hardship
and inequity. I believe that litigants have reasonably
relied on Lansing Mayor’s definition of “ambiguity.”
57
Its application potentially leads to a different statutory
interpretation than one based on alternative defini-
tions. Hence, I conclude that rejecting the definition
may prejudice current litigants who have relied on it.
However, I also recognize that litigants have contin-
ued to rely on previous standards for discerning ambi-
guity. This reliance is also reasonable given the incon-
sistent application of Lansing Mayor’s definition,
58
as
well as the disagreement over the proper definition of
57
A review of filings in this Court and lower courts demonstrates that
in post-2004 cases involving statutory interpretation, litigants often cite
Lansing Mayor for the applicable definition of “ambiguity.”
58
Compare, e.g., Kinder Morgan Michigan, LLC v City of Jackson, 277
Mich App 159, 163-164; 744 NW2d 184 (2007) (“[W]hen a statute is
ambiguous on its face and reasonable minds can differ with respect to its
meaning, judicial construction is necessary to determine the intent of the
Legislature.”), with Village of Holly v Holly Twp, 267 Mich App 461, 474;
705 NW2d 532 (2005) (“Although reasonable minds may differ on the
interpretation of subsection 3, that is not the test to determine whether
a statutory ambiguity justifies judicial construction. ‘Rather, a provision
of the law is ambiguous only if it “irreconcilably conflict[s]” with another
provision, . . . or when it is equally susceptible to more than a single
meaning.’ ”) (citations omitted).
As the United States Supreme Court stated in Pearson v Callahan,
555 US 223, 129 S Ct 808, 818; 172 L Ed 2d 565 (2009), “[w]here a
decision has been questioned by members of this Court in later decisions
and has defied consistent application by the lower courts, these factors
weigh in favor of reconsideration.” (Quotation marks and punctuation
omitted.) Thus, despite reliance on the new and old definitions of
“ambiguity,” it is noteworthy that the United States Supreme Court has
held that inconsistent application of a new rule favors reexamination of
that rule.
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“ambiguity” among the justices of this Court.
59
Such
reliance is not surprising given that Lansing Mayor’s
definition is so vastly different from the definitions of
“ambiguity” that preceded it for more than 150 years.
60
In fact, despite its explicit holding, Lansing Mayor did
not overrule or cite any previous cases that addressed
the proper method for discerning ambiguity.
Nevertheless, because Lansing Mayor stands as the
most recent declaration of how to discern statutory
ambiguity, litigants reasonably relied on it for this
point. I therefore conclude that this factor weighs
moderately in favor of upholding the definition.
Third, I consider whether related principles of law
have so far developed since the Lansing Mayor defini-
tion of “ambiguity” was pronounced that only a rem-
nant of the definition has survived. This factor is
inapplicable to the stare decisis analysis in this case.
The definition of “ambiguity” is a tool of judicial
construction. Its only relevance is to discern ambiguity
or the lack of it in a given statute. Thus, the definition
of “ambiguity” stands alone and is not inherently
related to other principles of law. Accordingly, this
factor weighs neither in favor of nor against replacing
the Lansing Mayor definition.
Fourth, I examine whether facts and circumstances
have so changed, or have come to be seen so differently,
as to rob the old definition of significant justification.
This factor focuses on real-world practicalities.
61
How-
59
See Stone v Williamson, 482 Mich 144, 152, 173&n4;753NW2d 106
(2008).
60
See, e.g., Bidwell v Whitaker, 1 Mich 469 (1850).
61
See, e.g., Casey, supra at 860 (discussing how advancements in
medical treatment since Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed
2d 147 [1972], was decided have not rendered the “factual underpin-
nings” of Roe’s central holding obsolete).
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ever, the definition of “ambiguity” is not beholden to
the underlying facts and circumstances of a given case.
Accordingly, because the definition of “ambiguity” does
not implicate practical concerns, I do not believe that
this factor weighs in favor of or against replacing the
Lansing Mayor definition.
Fifth, I consider whether other jurisdictions have de-
cided similar issues in a different manner. My review
indicates that Lansing Mayor’s definition of “ambiguity”
is unsupported by any other jurisdiction. In fact, not a
single jurisdiction, state or federal, requires an irreconcil-
able conflict between provisions or that language be
equally susceptible to more than one meaning before
finding statutory ambiguity.
62
Accordingly, this factor
weighs strongly in favor of rejecting the Lansing Mayor
definition.
I note that the sixth factor, whether upholding the
Lansing Mayor definition is likely to result in serious
detriment prejudicial to public interests, has no bearing
on this case. As previously stated, the definition of “am-
biguity” is merely a tool of statutory interpretation. As
such, its application has no relevance to public interests
because the definition of “ambiguity,” standing alone,
does not dictate any course of action in a particular case.
Finally, I consider whether the prior decision was an
abrupt and largely unexplained departure from prece-
dent. As noted earlier, Lansing Mayor’s definition of
“ambiguity” is nothing more than a legal fiction, wholly
unsupported by any law. Furthermore, it represented a
decisive and abrupt shift from precedent without rec-
ognition of the prior standards for discerning statutory
ambiguity. Accordingly, this factor weighs heavily in
favor of abrogating Lansing Mayor’s definition of “am-
biguity.”
62
See post at 377.
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Under my analysis of the aforementioned factors,
Lansing Mayor’s definition of “ambiguity” has proven
unworkable, is unsupported by other jurisdictions, and
represents an abrupt and unexplained departure from
precedent. Although it has been relied on in Michigan,
reliance has been uneven and short-lived. Accordingly, I
conclude that a compelling justification exists for re-
placing it.
63
63
Justice M
ARKMAN
has criticized my stare decisis analysis. I offer the
following response.
(1) As I state supra at 313 n 36, I continue to believe that tools of
statutory interpretation, such as the definition of “ambiguity,” are not
entitled to stare decisis status. However, Justice M
ARKMAN
, other
members of this Court, the Court of Appeals, and lower courts have
treated Lansing Mayor’s definition of “ambiguity” as fully entitled to
it. See id. Hence, a thorough analysis of that case’s definition of
“ambiguity” and its precedential worth is appropriate, even if not
mandated.
(2) My fealty to stare decisis speaks for itself. As evidenced by this
opinion, only because I find that, after a thorough examination of the
relevant factors, a compelling justification exists for overruling precedent
do I do so. This stands in stark contrast to the former majority’s approach
to stare decisis, as shown at notes 44 and 47 of this opinion.
(3) Justice M
ARKMAN
claims that “when the previous majority over-
ruled a precedent, it was to ensure that the decisions of this Court more
closely reflected the judgments of the people’s elected legislative repre-
sentatives....”Post at 391. This is simply a reflection of his personal
opinion and that of the justices who shared his view in those cases. As
indicated earlier, the former majority’s overrulings showed little respect
for the doctrine of stare decisis and developed a superficial rule in
Robinson to deal with it. They disdained cases that had stood for many
years before the former majority’s ascension to the bench.
(4) Contrary to Justice M
ARKMAN
’s contention, I have not ignored
precedent in any of the cases he cites. For a comprehensive response to
Justice M
ARKMAN
on this issue, see my concurring opinion in Potter v
McLeary, 484 Mich 397, 426-429; 774 NW2d 1 (2009).
(5) Justice M
ARKMAN
claims that I have never joined an opinion that
articulates a “compelling justification” for upholding a prior decision that
I believe was wrongly decided. This comes as no surprise, however. The
finding of a compelling justification as a requisite to overruling precedent
326 484 M
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2. THE PROPER METHOD OF DISCERNING AMBIGUITY
Having rejected the Lansing Mayor definition of
“ambiguity,” I now iterate the proper method of dis-
cerning statutory ambiguity. Before Lansing Mayor was
decided, Michigan courts used several analogous varia-
tions of statutory interpretation. For example, in In re
MCI Telecom Complaint,
64
we held that “[s]hould a
statute be ambiguous on its face...sothat reasonable
minds could differ with respect to its meaning, judicial
construction is appropriate to determine the mean-
ing.”
65
This Court has applied the “reasonable minds”
standard on numerous other occasions.
66
has never been the standard in Michigan during my years as a justice.
Robinson did not require a compelling justification to overrule precedent.
(6) Justice M
ARKMAN
’s claim that I “find[] it necessary to depart from
the 150-year old standard [regarding stare decisis] that [I] previously
hailed” is hopelessly off the mark. Justice M
ARKMAN
himself joined the
Court’s opinion in Robinson, which established an unprecedented test for
evaluating prior decisions of the Court. Although I objected to it, I
followed Robinson in subsequent cases. See, e.g., Perry v Golling Chrysler
Plymouth Jeep, Inc, 477 Mich 62, 71; 729 NW2d 500 (2007) (K
ELLY
,J.,
dissenting). Moreover, my position in Rowland, is entirely consistent
with this opinion. As I stated in Rowland, “the doctrine [of stare decisis]
carries such persuasive force that we have always required a departure
from precedent to be supported by some special justification.” Rowland,
supra at 253-254, citing United States v IBM, supra. Only now do I
expand upon Robinson and define the boundaries of a “compelling
justification” because of Robinson’s insufficient deference to precedent.
64
In re MCI Telecom Complaint, 460 Mich 396; 596 NW2d 164 (1999).
65
Id. at 411-412. Justice C
AVANAGH
authored the opinion in In re MCI.
Also signing it were then-Chief Justice W
EAVER
, Justices C
ORRIGAN
,
T
AYLOR
, and B
RICKLEY
, and myself. Justice Y
OUNG
did not participate in the
case.
66
See, e.g. People v Petty, 469 Mich 108, 114; 665 NW2d 443 (2003); People
v Warren, 462 Mich 415, 427; 615 NW2d 691 (2000); Yaldo v North Pointe
Ins Co, 457 Mich 341, 347; 578 NW2d 274 (1998); Sam v Balardo, 411 Mich
405, 418-419 n 9; 308 NW2d 142 (1981). Petty, authored by Justice
C
AVANAGH
, was notably signed by then-Chief Justice C
ORRIGAN
, Justices
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This Court has also employed a “doubtful” stan-
dard in deciding whether ambiguity exists. In Smith v
Grand Rapids City Comm,
67
we held that “[w]here...
the language of a statute is of doubtful meaning, the
court should give it a reasonable construction looking
to the purpose to be subserved thereby, and the object
sought to be accomplished and its occasion and ne-
cessity.”
68
Finally, this Court has used a “susceptible” stan-
dard. Applying this method of interpretation, we held
that “[i]t is only where a statute is unclear and
susceptible to more than one interpretation that
judicial construction is allowed.”
69
These correspond-
ing approaches to evaluating statutes for ambiguity
have endured in Michigan caselaw throughout the
nineteenth and twentieth centuries.
70
These historical standards for discerning ambigu-
ity are easily reconcilable and analogous. The crux of
the “reasonable minds” standard is that, when two
persons reasonably afford different meanings to
statutory language, it is ambiguous. As for the
“doubtful” standard, it suggests that a statute is
ambiguous when its language is of questionable or
unclear meaning. The “susceptible” standard is self-
W
EAVER
,T
AYLOR
,Y
OUNG
, and M
ARKMAN
, and myself. Yet Justices T
AYLOR
,
C
ORRIGAN
,Y
OUNG
, and M
ARKMAN
apparently chose to ignore Petty and
the “reasonable minds” standard in Lansing Mayor and its progeny
applying L ansing Mayor’s aberrant definition of “ambiguity.”
67
Smith v Grand Rapids City Comm, 281 Mich 235; 274 NW 776
(1934).
68
Id. at 240-241 (citations omitted).
69
People v Morris, 450 Mich 316, 326; 537 NW2d 842 (1995).
70
See, e.g., In re MCI, supra; Sam, supra; City of Lansing v Lansing
Twp, 356 Mich 641; 97 NW2d 804 (1959); People v Detroit, GH&MRCo,
228 Mich 596; 200 NW 536 (1924); Crary, supra; Borden v Fletcher’s
Estate, 131 Mich 220; 91 NW 145 (1902); Lane v Ruhl, 103 Mich 38; 61
NW 347 (1894); Bidwell, supra.
328 484 M
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explanatory in that, if a statute is susceptible to more
than one interpretation, it is ambiguous.
I adopt a definition of “ambiguity” that encompasses all
three of the aforementioned well-established standards
for determining ambiguity.
71
Specifically, I would hold:
[W]hen there can be reasonable disagreement over a
statute’s meaning, or, as others have put it, when a statute is
capable of being understood by reasonably well-informed
persons in two or more different senses, [a] statute is ambigu-
ous. For example, this Court has concluded that statutes [are]
ambiguous when one word in the statute has an unclear
meaning, when a statute’s interaction with another statute
has rendered its meaning unclear, or when application of the
statute to facts has rendered the correct application of the
statute uncertain.
[
72
]
This standard gleans the fundamental principles from
the “reasonable minds,” “doubtful,” and “susceptible”
71
Justice M
ARKMAN
claims that “[a] facile resort to ambiguity affords
the judge a readily available means of acting beyond the scope of his or
her authority to exercise exclusively the ‘judicial power.’ ” Post at 366.
It seems obvious that the “judicial power” must include the authority
to interpret statutes as written and interpret ambiguity where appro-
priate. Also, misuse of our “judicial power” can certainly occur where
ambiguity is never found and judges use few judicial tools to discern
what they believe to be plain language.
Moreover, Justice M
ARKMAN
questions “what...arguments [I] have for
substantially expanding the range of judicial decision-making....”Post at
376. I do not need an “argument,” however, to defend my definition of
“ambiguity,” as it is supported by a multitude of cases in every state and
every federal jurisdiction. See notes 73, 74, and 75 of this opinion. To the
contrary, it is Justice M
ARKMAN
who fails to advance any justification for the
definition of “ambiguity” that he favors. As indicated earlier, that definition
was based not on any precedent whatsoever, but rather derived from thin air.
While he passionately decries that his definition is “fair,” post at 379, and
“grounded in logic and common sense,” post at 375, whether a legal principle
is “fair” or “logical” is highly subjective. Its fairness comes into serious
question when it has no basis in the law.
72
Yellow Freight System Inc v Michigan, 464 Mich 21, 38; 627 NW2d
236 (2001) (C
AVANAGH
, J., dissenting) (citations omitted), rev’d sub nom
Yellow Transp Inc v Michigan, 537 US 36 (2002).
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tests. It has been applied, in some variation, by
every other state in the country,
73
all the federal circuit
73
See, e.g., AmSouth Bank v Holberg, 789 So 2d 833 (Ala, 2001); State
v Saathoff, 29 P3d 236 (Alas, 2001); State v Gomez, 212 Ariz 55; 127 P3d
873 (2006); Yamaha Motor Corp, USA v Richard’s Honda Yamaha, 344
Ark 44; 38 SW3d 356 (2001); Hughes v Bd of Architectural Exam’rs,17
Cal 4th 763; 72 Cal Rptr 2d 624; 952 P2d 641 (1998); State v Nieto, 993
P2d 493 (Colo, 2000); State v Marsh & McLennan Companies, Inc, 286
Conn 454; 944 A2d 315 (2008); L eVan v Independence Mall, Inc, 940 A2d
929 (Del, 2007); State v Huggins, 802 So 2d 276, 277 (2001); Aldrich v
City of Lumber City, 273 Ga 461; 542 SE2d 102 (2001); Barnett v State,91
Hawaii 20; 979 P2d 1046 (1999); State v Yzaguirre, 144 Idaho 471; 163
P3d 1183 (2007); In re BC, 176 Ill 2d 536; 680 NE2d 1355 (1997); In re
Lehman, 690 NE2d 696, 702 (Ind, 1997); City of Waterloo v Bainbridge
749 NW2d 245 (Iowa, 2008); State v Paul, 285 Kan 658; 175 P3d 840
(2008); Revenue Cabinet v Rohm & Haas Ky Inc, 929 SW2d 741 (Ky App,
1996); Burnette v Stalder, 789 So 2d 573 (La, 2001); In re Estate of
Kingsbury, 946 A2d 389 (Me, 2008); Twine v State, 395 Md 539; 910 A2d
1132 (2006); Town of Falmouth v Civil Serv Comm, 447 Mass 814; 857
NE2d 1052 (2006); Amaral v Saint Cloud Hosp, 598 NW2d 379 (Minn,
1999); Dawson v Townsend & Sons, Inc, 735 So 2d 1131 (Miss App, 1999);
State v Graham, 204 SW3d 655 (Mo, 2006); Montana Contractors Ass’n,
Inc v Dep’t of Highways, 220 Mont 392; 715 P2d 1056 (1986); State ex rel
Johnson v Marsh, 149 Neb 1; 29 NW2d 799 (1947); Chanos v Nevada Tax
Comm, 181 P3d 675 (Nev, 2008); In re Baker, 154 NH 186; 908 A2d 806
(2006); Fairway Dodge, LLC v Decker Dodge, Inc, 191 NJ 460; 924 A2d
517 (2007); Maestas v Zager, 141 NM 154; 152 P3d 141 (2007); Charter
Dev Co v City of Buffalo, 6 NY3d 578; 815 NY Supp 2d 13; 848 NE2d 460
(2006); Morris v Thomas, 161 NC App 680; 589 SE2d 419 (2003); Walberg
v Walberg, 748 NW2d 702 (ND, 2008); Clark v Scarpelli, 91 Ohio St 3d
271; 744 NE2d 719 (2001); YDF, Inc v Schlumar, Inc, 136 P3d 656 (Okla,
2006); State v Cooper, 319 Or 162; 874 P2d 822 (1994); Pridgen v Parker
Hannifin Corp, 588 Pa 405; 905 A2d 422 (2006); Unistrut Corp v Dept of
Labor & Training, 922 A2d 93 (RI, 2007); Kennedy v South Carolina
Retirement Sys, 345 SC 339; 549 SE2d 243 (2001); Zoss v Schaefers, 598
NW2d 550 (SD , 1999); Sallee v Barrett, 171 SW3d 822 (T enn, 2005); In re
Missouri P R Co, 998 SW2d 212 (T ex, 1999); Martinez v Media-Paymaster
Plus/Church of Jesus Christ of Latter-Day Saints, 164 P3d 384 (Utah,
2007); Green Mountain P ower Corp v Sprint Communications, 172 Vt 416;
779 A2d 687 (2001); Brown v Lukhard, 229 Va 316; 330 SE2d 84 (1985);
Yakima v Int’l Ass’n of Fire Fighters, 117 W ash 2d 655; 818 P2d 1076
(1991); Phillips v Larrys Drive-In Pharmacy, Inc, 220 W Va 484; 647 SE2d
920 (2007); State v Williams, 198 Wis 2d 479; 544 NW2d 400 (1996); Story
v State, 755 P2d 228 (Wy, 1988).
330 484 M
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courts,
74
and the United States Supreme Court.
75
B. APPLICATION TO § 315(1)
I believe that § 315(1) is ambiguous because the
statute is capable of being understood by reasonably
well-informed persons in two or more different senses.
As mentioned before, the term “prorate” could reason-
ably be understood to apply to employers, their insur-
ance providers, health care providers, and to employees
seeking workers’ compensation benefits. Indeed, § 315
and the entire WDCA are entirely silent as to who,
among these parties, is subject to a proration of attor-
ney fees. Absent extra-textual sources, any determina-
tion of the Legislature’s intent becomes a mere exercise
in speculation. Thus, having found that § 315(1) is
ambiguous, I may now look to extra-textual sources to
aid in its interpretation.
76
74
See, e.g., United States v O’Neil, 11 F3d 292, 297-298 (CA 1, 1993);
Natural Resources Defense Council v Muszynski, 268 F3d 91, 98 (CA 2,
2001); Dobrek v Phelan, 419 F3d 259, 264 (CA 3, 2005); Newport News
Shipbuilding & Dry Dock Co v Brown, 376 F3d 245, 248 (CA 4, 2004);
United States v Lowe, 118 F3d 399, 402 (CA 5, 1997); Saxion v
Titan-C-Mfg Inc, 86 F3d 553, 560 (CA 6, 1996); Williams v Banning,72
F3d 552, 554 (CA 7, 1995); Design Professionals Ins Co v Chi Ins Co,
454 F3d 906, 910 (CA 8, 2006); Mt Adams Veneer Co v United States,
896 F2d 339, 342 (CA 9, 1990); Wright v Fed Bureau of Prisons, 451
F3d 1231, 1235 (CA 10, 2006); Med Transportation Mgt Corp v Comm’r
of Internal Revenue Service, 506 F3d 1364, 1368 (CA 11, 2007); United
States v Villanueva-Sotelo, 380 US App DC 11; 515 F3d 1234, 1237
(2008); Butterbaugh v Dep’t of Justice, 336 F3d 1332, 1339 (CA Fed,
2003).
75
See, e.g., Gonzales v Oregon, 546 US 243, 258; 126 S Ct 904; 163 L Ed
2d 748 (2006); Houghton v Payne, 194 US 88, 99; 24 S Ct 590; 48 L Ed 888
(1904).
76
I find it noteworthy that none of the dissents in this case
characterizes § 315(1) as unambiguous under any of the historical
standards for discerning ambiguity or the definition enunciated in
Lansing Mayor.
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1. HARMONIZATION WITH THE WDCA
I seek an interpretation of § 315(1) that is in accord
with the principles underlying the WDCA as a whole.
The act is remedial in nature.
77
Thus, where ambiguity
exists and judicial construction of the act is necessary,
we construe the act’s terms liberally to grant rather
than deny benefits to injured workers.
78
This canon of
statutory construction is deeply embedded in both
American and Michigan jurisprudence.
79
The WCAC has explicitly recognized the importance of
holding employers and their insurance carriers respon-
sible for a proration of attorney fees pursuant to § 315(1).
In Harvlie v Jack P ost Corp, the WCAC stated, “[T]he
purpose of [the] attorney fee provisions...isnotmerely
to assure that a claimant’s attorney is paid, but also to
deter employers from breaching their statutory duty to
provide medical treatment to injured workers.”
80
I find this reasoning persuasive and applicable to this
case. If employers and their insurance carriers are not
held accountable for a prorated share of attorney fees,
they will have an incentive to deny medical benefits.
81
However, Justice H
ATHAWAY
, in her concurring opinion, opines that
§ 315(1) is unambiguous. A claim that a provision is ambiguous or
unambiguous is best accompanied by a discussion of what constitutes
statutory ambiguity or lack thereof. Yet Justice H
ATHAWAY
fails to address
this step in the process of statutory interpretation.
77
Sabotka v Chrysler Corp, 447 Mich 1, 20 n 18; 523 NW2d 454 (1994).
78
Paschke v Retool Industries, 445 Mich 502, 511; 519 NW2d 441
(1994), citing Bower v Whitehall Leather Co, 412 Mich 172, 191; 312
NW2d 640 (1981).
79
See Haynes, supra at 42-44 (K
ELLY
, J., concurring).
80
Harvlie v Jack Post Corp, 2006 Mich ACO 69, p 5, citing Lahti v
Fosterling, 357 Mich 578; 99 NW2d 490 (1959) (emphasis added).
81
The dissents argue that my interpretation of § 315(1) will penalize
employers who validly contest an employee’s claim for benefits. This is
332 484 M
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They will be tempted to deny an injured employee’s
request for coverage in the hope that, in subsequent
litigation, they will not be found liable. And even if they
were found liable, they would be responsible only for
actual medical expenses but not for attorney fees,
despite their wrongful denial of valid claims.
Likewise, if injured workers were forced to pay a
prorated portion of their own attorney fees, their ulti-
mate recovery could be reduced below their actual costs
of securing medical treatment. Such a result would
violate the remedial goal of the WDCA.
2. CASELAW HAS EMPLOYED SIMILAR REASONING
Caselaw also supports my interpretation of
§ 315(1). I find persuasive the fact that every previ-
ous case that has analyzed § 315(1) with respect to
the proration of attorney fees has employed reasoning
similar to mine.
The Court of Appeals first considered the proration
of attorney fees pursuant to § 315(1) in Boyce v Grand
not the case. Nothing in this opinion can be construed as requiring a
magistrate to prorate fees against an employer or the employer’s
insurance carrier. Furthermore, even if there were a wrongful denial
of medical treatment under § 315(1), the magistrate is vested with the
discretion not to prorate fees. Thus, the denial of a treatment, whether
valid or not, on its own, does not assure that an employer or its
insurance carrier will be subject to a proration of attorney fees.
Justice Y
OUNG
correctly asserts that “a workers’ compensation
claimant is ordinarily responsible for his own personal attorney fees.”
Post at 347. However, § 315(1) deals not with attorney fees for a
workers’ compensation claim generally, but with attorney fees specifi-
cally related to an employer’s failure, neglect, or refusal to pay for
“reasonable medical, surgical, and hospital services and medicines, or
other attendance or treatment recognized by the laws of this state as
legal, when they are needed.” MCL 418.315(1). Thus, a workers’
compensation claimant generally remains responsible for his or her
attorney fees unrelated to the matters governed by § 315(1).
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Rapids Asphalt Paving Co.
82
There, the plaintiff argued
that his health care provider should be held responsible
for a portion of his attorney fees. The Court rejected
this argument, noting that a party does not become
liable for attorney fees merely by accepting the benefits
of an attorney’s services.
83
The Court also ruled that
§ 315(1) could be construed to require either the em-
ployer or its insurance carrier to pay a plaintiff’s
attorney fees.
Finally, the Court noted that Administrative Rule 14
of the Bureau of Workers’ Compensation, which was in
effect when the plaintiff was injured, precluded attor-
neys from recovering a percentage fee for accrued
medical services.
84
The Court questioned the soundness
of Rule 14, noting that requiring employers or insur-
ance carriers to pay attorney fees when they refuse to
pay mandatory medical benefits would serve justice.
85
82
Boyce v Grand Rapids Asphalt Paving Co, 117 Mich App 546; 324
NW2d 28 (1982).
83
Id. at 549-550.
84
Before 1979, Rule 14 provided that a plaintiff’s attorney shall deduct
reasonable expenses before computing a fee. These included expenses for
hospitals, surgery, medical providers, and burials. However, the statute
was amended in 1979, and the Legislature removed these from the
expenses an attorney is precluded from recovering. Thus, Rule 14 no
longer prevents attorneys from recovering a percentage attorney fee
assigned by a recovery of medical services. Watkins v Chrysler Corp, 167
Mich App 122, 131 n 1; 421 NW2d 597 (1988).
85
Boyce, supra at 551-552 n 45. In Zeeland Community Hosp v Vander
Wal, 134 Mich App 815; 351 NW2d 853 (1984), the Court of Appeals
applied analogous reasoning. Examining § 315(1), it noted, “Since the
clause concerning attorney fees follows the clause concerning the em-
ployer’s refusal to pay the employer’s reasonable medical expenses, the
final sentence is logically construed to require either the employer or the
insurance carrier to pay a portion of [a plaintiff’s] attorney fees.” Id.at
823-825. The Court also held that the statute does not evince an intent by
the Legislature to require health care providers to pay a portion of
attorney fees. Id.
334 484 M
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In Watkins v Chrysler Corp,
86
the Court of Appeals
reaffirmed the principle expounded in Boyce that the
term “prorate” in the final sentence of § 315(1) applies
to employers and their insurance carriers. Watkins
involved an injured plaintiff who sought and was
awarded workers’ compensation benefits. He subse-
quently requested a hearing regarding his right to
attorney fees related to medical expenses ultimately
paid by Blue Cross Blue Shield of Michigan. The mag-
istrate ruled that he was not entitled to such fees. The
Workers’ Compensation Appeal Board (WCAB) re-
versed the magistrate’s decision and awarded attorney
fees to be paid by the plaintiff’s employer.
On appeal, the Court of Appeals reversed, holding
that the imposition of attorney fees under § 315(1)
would be unconscionable. It noted that the plaintiff’s
medical expenses had been timely paid and that there
had been no neglect, breach of duty, or failure to provide
medical care.
87
Nonetheless, the Court reiterated that
the WCAB had improperly ignored the policy aspect of
Boyce that an employer and its insurer should bear
attorney fees when medical expenses are not timely
paid.
88
In contrast to Watkins, defendants in this case did
not timely pay plaintiff’s medical expenses such that
there was no neglect, breach of duty, or failure to
provide
The Court of Appeals used the same reasoning in Duran v Sollitt
Constr Co, 135 Mich App 610, 615; 354 NW2d 277 (1984), which noted
that § 315(1) “seems to refer to payment by the employer or his
insurer....” Moreover, the Duran Court agreed with Boyce that the
statute precluded an assessment of attorney fees against a health care
provider. Id.
86
Watkins v Chrysler Corp, 167 Mich App 122; 421 NW2d 597 (1988).
87
Id. at 132.
88
Id. at 131-132, citing Boyce, supra at 551-552 n 45.
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medical care. Midwest failed to pay medical expenses
despite the fact that it was paying other workers’
compensation benefits to plaintiff. As the WCAC
noted, Midwest knew of plaintiff’s medical bills well
in advance of trial, yet simply refused to pay them.
Thus, the employer “fail[ed], neglect[ed], or re-
fus[ed]” to furnish reasonable medical expenses for
plaintiff’s injuries under § 315(1).
89
Finally, in Harvlie v Jack Post Corp,
90
the Court of
Appeals found a unity of purpose for § 315(1) by holding
that its last sentence authorizes a magistrate to prorate
attorney fees among an employer and its insurance
carrier. The Court held:
Here, the WCAC majority’s construction of § 315(1) is
consistent with a harmonious reading of the last two sen-
tences of § 315(1). The third sentence of § 315(1) provides
that “the . . . magistrate may prorate attorney fees at the
contingent fee rate paid by the employee.” Standing alone,
this sentence contains ambiguity because it fails to identify
whom the magistrate may order to pay the attorney fees. This
sentence is not to be construed in isolation, however, but
instead must be read in the context of the whole statute and
harmonized with the statute’s other provisions in a manner
that effectuates the purpose intended by the Legislature. The
second sentence of § 315(1) addresses the consequences of an
employer’s failure to pay medical expenses and authorizes a
magistrate to order the employer to reimburse either the
injured claimant or the claimant’s medical insurance provider
for the reasonable medical expenses incurred. This second
sentence addresses the consequences to a nonpaying em-
ployer that “fails, neglects, or refuses” to provide reasonable
medical services. The WCAC properly construed the final two
sentences of § 315(1) and provided a unity of purpose for this
statute.
[
91
]
89
See Watkins, supra at 132.
90
Harvlie v Jack Post Corp, 280 Mich App 439; 760 NW2d 277 (2008).
91
Id. at 445-446 (citations omitted).
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The Court noted that its holding was consistent with
prior interpretations of 315(1).
92
In sum, I agree with the magistrate, the WCAC, the
Court of Appeals, and established caselaw that em-
ployers and their insurance carriers are the only
parties subject to a proration of attorney fees under
§ 315(1). This interpretation harmonizes the last
sentence of § 315(1) with the preceding sentences of
the provision as well as with the remedial goals of the
WDCA. Workers’ compensation magistrates may thus
prorate an employee’s attorney fees incurred in pro-
curing payment for medical expenses against an
employer, or against its insurance carrier, or against
both.
Here, the magistrate’s proration of attorney fees
against defendants was appropriate, given defendants’
failure to pay plaintiff’s medical services as mandated
by § 315(1). Accordingly, I conclude that the magistrate
properly prorated plaintiff’s attorney fees under
§ 315(1) against Midwest and Magna.
III. THE INAPPLICABILITY OF THE AMERICAN RULE
Finally, I note that Michigan courts follow the so-called
“American rule” with respect to the payment of attorney
fees.
93
We have held that, “[u]nder the American rule,
attorney fees are not recoverable from the losing party
as costs in the absence of an exception set forth in a
statute or court rule expressly authorizing such an
award.”
94
This rule is codified at MCL 600.2405(6),
which provides that among items that may be taxed as
92
Id. at 446.
93
Haliw v Sterling Hts, 471 Mich 700, 706; 691 NW2d 753 (2005).
94
Id. at 707.
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costs are “[a]ny attorney fees authorized by statute or
court rule.”
95
Here, § 315(1) explicitly grants magistrates the discre-
tionary authority to prorate attorney fees related to an
employer’s failure to provide services in accordance with
the statute. Thus, the statute contemplates that a party
other than a plaintiff could, in the discretion of the
magistrate, be ordered to pay attorney fees in connection
with a plaintiff’s suit. Accordingly, § 315(1) constitutes an
express statutory authorization of attorney fees, which
trumps the otherwise applicable American rule.
IV. CONCLUSION
I recommend that the Court modify and expand the
principles set forth in Robinson v Detroit governing
when the Court should depart from the principle of
stare decisis. A stare decisis analysis should always
begin with a presumption that upholding precedent is
the preferred course of action. Next, the Court should
determine whether a compelling justification exists to
overturn the precedent. A compelling justification is not
a mere belief that the precedential case was wrongly
decided or that the Court as currently composed would
have decided the case differently. The factors listed in
this opinion should be used on a case-by-case basis to
determine whether a compelling justification exists to
overrule an existing precedent.
However, consistent with United States Supreme
Court precedent, I would accord a lower level of defer-
ence to cases that represent a recent departure from the
traditional notions of stare decisis.
95
The American rule stands in contrast to the English rule. Under the
English rule, the losing party pays the prevailing party’s attorney fees
and costs absent an exception. Id.
338 484 M
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300 [July
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ELLY
, C.J.
I also reject as unworkable the definition of statutory
ambiguity espoused in Lansing Mayor. I conclude that
MCL 418.315(1) is ambiguous because it is capable of
being understood by reasonably well-informed persons
in two or more different senses. As a consequence, the
statute fails to clearly indicate the parties among whom
attorney fees may be prorated.
Finally, we would hold that the Legislature intended
that the term “prorate” in the last sentence apply only
to employers and their insurance carriers. This con-
struction is consistent with well-established principles
of statutory interpretation, caselaw, the remedial na-
ture of the WDCA, and the purpose of § 315(1). I would
also hold that the American Rule of attorney fees does
not apply to § 315(1).
Plaintiff’s motion to dismiss defendants’ application
for leave to appeal is considered, and it is denied. We
affirm the judgment of the Court of Appeals.
C
AVANAGH
, J., concurred with K
ELLY
, C.J.
H
ATHAWAY
,J.(concurring). I concur in the lead opin-
ion only to the extent that it concludes that the term
“prorate” in MCL 418.315(1) applies exclusively to
employers and their insurance carriers. I write sepa-
rately because I do not find MCL 418.315(1) to be
ambiguous. Section 315(1), when read as a whole,
indicates that the term “prorate” in MCL 418.315(1)
applies only to employers and their insurance carriers.
This is a case of statutory interpretation. The proper
interpretation and application of a statute presents a
question of law, which receives de novo review.
1
Assum-
ing that the Legislature has acted within its constitu-
1
Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008).
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tional authority, the purpose of judicial statutory con-
struction is to discern and give effect to the intent of the
Legislature.
2
In determining the intent of the Legisla-
ture, this Court must first look to the language of the
statute.
3
The Court must, first and foremost, interpret
the language of a statute in a manner that is consistent
with the intent of the Legislature.
4
As far as possible,
effect should be given to every phrase, clause, and word
in the statute.
5
The statutory language must be read
and understood in its grammatical context, unless it is
clear that something different was intended.
6
Moreover,
when considering the correct interpretation, the statute
must be read as a whole.
7
Individual words and phrases,
while important, should be read in the context of the
entire legislative scheme.
8
While defining particular
words in statutes, we must consider both the plain
meaning of the critical word or phrase, as well as its
placement and purpose in the statutory scheme.
9
A
statute must be read in conjunction with other relevant
statutes to ensure that the legislative intent is correctly
ascertained.
10
The statute must be interpreted in a
manner which ensures that it works in harmony with
the entire statutory scheme.
11
2
Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119
(1999).
3
Id.
4
Id.
5
Id. at 237.
6
Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d 570 (2008).
7
Sun Valley, supra at 237.
8
Herman, supra at 366.
9
Id., quoting Bailey v United States, 516 US 137, 145; 116 S Ct 501; 133
L Ed 2d 472 (1995).
10
Wayne Co v Auditor General, 250 Mich 227, 233; 229 NW 911 (1930).
11
Id. at 234.
340 484 M
ICH
300 [July
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ATHAWAY
,J.
To determine the intent of MCL 418.315(1), the plain
language of the statute must first be examined. Section
315(1) provides in pertinent part:
The employer shall furnish, or cause to be furnished, to
an employee who receives a personal injury arising out of
and in the course of employment, reasonable medical,
surgical, and hospital services and medicines, or other
attendance or treatment recognized by the laws of this
state as legal, when they are needed....After 10 days from
the inception of medical care as provided in this section, the
employee may treat with a physician of his or her own
choice by giving to the employer the name of the physician
and his or her intention to treat with the physician. The
employer or the employer’s carrier may file a petition
objecting to the named physician selected by the employee
and setting forth reasons for the objection. If the employer
or carrier can show cause why the employee should not
continue treatment with the named physician of the em-
ployee’s choice,...the...magistrate may order that the
employee discontinue treatment with the named physician
or pay for the treatment received from the physician....If
the employer fails, neglects, or refuses so to do, the
employee shall be reimbursed for the reasonable expense
paid by the employee, or payment may be made in behalf of
the employee to persons to whom the unpaid expenses may
be owing, by order of the workers’ compensation magis-
trate. The workers’ compensation magistrate may prorate
attorney fees at the contingent fee rate paid by the employee.
[Emphasis added.]
Section 315(1) gives magistrates the discretionary
authority to prorate attorney fees at the contingent fee
rate paid by the employee. The question in this case is
against whom attorney fees can be prorated.
Although I disagree with the lead opinion that the
final sentence of § 315(1) is ambiguous, I agree with its
conclusion that the final sentence of § 315(1) applies
only to employers and their insurance carriers. This
interpretation of the statute harmonizes the individual
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sentences and phrases in § 315(1) with each other. The
final sentence of § 315(1) cannot be construed to stand
alone without reading it in the context of the entire
statute.
12
It must be examined and analyzed as part of
the particular statutory provision and then harmonized
with the statute’s other provisions to satisfy the pur-
pose intended by the Legislature.
13
Section 315(1) pertains to employer liability to pay
medical benefits to workers injured in the course of
employment. Section 315(1) mandates that employers
furnish an employee with medical treatment needed for
an injury arising out of and in the course of employ-
ment. The statute also enumerates certain types of
treatment for which reimbursement costs can be con-
tested by employers and their insurance carriers. How-
ever, if an employer fails, neglects, or refuses to provide
covered medical expenses, the employer must reim-
burse the employee for the expenses, or make a pay-
ment to a medical provider for unpaid expenses that
may be owing. The last sentence of § 315(1) gives a
magistrate the discretion to prorate attorney fees at the
contingent fee rate paid by the employee to recoup costs
expended to recover medical expenses. Thus, the term
“prorate” in the final sentence of the § 315(1), when
read with the rest of the statute, applies to parties who
might contest the payment of medical benefits: employ-
ers and their insurance carriers. This interpretation
provides a unity of purpose for § 315(1).
In closing, I concur only with of the lead opinion’s
conclusion that the term “prorate” in MCL 418.315(1)
applies exclusively to employers and their insurance
carriers. I write separately because I do not find that
12
People v Couzens, 480 Mich 240, 250; 747 NW2d 849 (2008).
13
Farrington v Total Petroleum, Inc, 442 Mich 201, 209; 501 NW2d 76
(1993).
342 484 M
ICH
300 [July
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ATHAWAY
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§ 315(1) is ambiguous. Section 315(1), when read as a
whole, indicates that the term “prorate” in § 315(1)
applies only to employers and their insurance carriers.
This interpretation harmonizes the final sentence of
the statute with the entire statute as a whole.
W
EAVER
, J., concurred with H
ATHAWAY
,J.
C
ORRIGAN
,J.(dissenting). I fully join Justice M
ARKMAN
’s
dissenting opinion. I also join part II(B) of Justice Y
OUNG
’s
dissenting opinion.
Y
OUNG
,J.(dissenting). I fully join in part IV of Justice
M
ARKMAN
’s dissenting opinion. I further dissent from
the majority’s conclusion that “the term ‘prorate’ in
MCL 418.315(1) applies only to employers and their
insurance carriers,”
1
and with Chief Justice K
ELLY
’s
conclusion that a workers’ compensation claimant may
never be deemed responsible for a portion of the attor-
ney fees incurred because doing so would “violate the
remedial goal of the [Worker’s Disability Compensation
Act].”
2
Normally, a workers’ compensation claimant is re-
sponsible for bearing the costs of his portion of the
litigation, including attorney fees.
3
I believe that MCL
418.315(1) serves as an exception to this general rule,
permitting the magistrate to prorate attorney fees
between the claimant and the employer when the
employer refuses to pay “reasonable” and “needed”
medical expenses for an injury “arising out of and in the
1
Ante at 303.
2
Ante at 333 (emphasis added).
3
Gilroy v Gen Motors Corp (After Remand), 438 Mich 330, 340; 475
NW2d 271 (1991) (“As in any other civil litigation, a workers’ compen-
sation claimant is ordinarily responsible for personal attorney fees.”); see
also Gross v Great Atlantic & Pacific Tea Co, 87 Mich App 448; 274 NW2d
817 (1978).
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course of employment.” When an employer unjustifiably
refuses to fulfill its statutory duty to pay for medical
expenses incurred as a result of a work-related injury, it is
entirely appropriate for the magistrate to consider
whether to exercise the discretionary powers the Legisla-
ture has provided to prorate the fees between the parties
according to the respective merits of their positions. In
sum, the discretionary authority to prorate is a fee shift-
ing power that reduces the claimant’s usual obligation to
bear the entire burden of his own attorney fees.
In contrast, the majority allows only proration between
the employer and its insurer, while the claimant is relieved
of paying any portion of his attorney fees. As such, the
majority position must be predicated on the assumption
that every claim for benefits is meritorious and that any
contest of such a claim venal. The reality is that some
claims have merit and some should be contested; others
may involve unresolved factual and legal questions under
the Worker’s Disability Compensation Act (WDCA) that
can be definitively resolved only by the magistrate and the
Workers’ Compensation Appellate Commission (WCAC).
In consideration of this reality, I believe that the proration
provision was a legislative recognition that neither the
employer nor the claimant may have entirely meritorious
positions in a particular case. Thus, the magistrate has
been authorized to “split the baby” and divide the claim-
ant’s fees when the respective merits of the party’s posi-
tions warrant this. The majority does not prorate so much
as shift the entire attorney fee burden from the claimant
to the employer in every case.
I. STATUTORY CONSTRUCTION
The statute at issue, MCL 418.315(1), provides in
relevant part:
344 484 M
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The employer shall furnish, or cause to be furnished, to
an employee who receives a personal injury arising out of
and in the course of employment, reasonable medical,
surgical, and hospital services and medicines, or other
attendance or treatment recognized by the laws of this
state as legal, when they are needed....Iftheemployer
fails, neglects, or refuses so to do, the employee shall be
reimbursed for the reasonable expense paid by the em-
ployee, or payment may be made in behalf of the employee
to persons to whom the unpaid expenses may be owing, by
order of the worker’s compensation magistrate. The work-
er’s compensation magistrate may prorate attorney fees at
the contingent fee rate paid by the employee.
It is clear that an employer has an affirmative statutory
obligation to furnish “reasonable” medical treatment for
personal injuries “arising out of and in the course of
employment” when such treatment is “needed.” However,
if the employer fails to do so, the statute provides two
options. If the claimant has paid the medical expenses, the
“employee shall be reimbursed for the reasonable ex-
pense.” However, if the expenses remain “unpaid,” “pay-
ment may be made in behalf of the employee to persons to
whom the unpaid expenses may be owing, by order of the
worker’s compensation magistrate.” This sentence gives
the magistrate the discretion to direct payment to the
third-party medical provider on “behalf of the employee.”
The last sentence provides that the “worker’s compensa-
tion magistrate may prorate attorney fees at the contin-
gent fee rate paid by the employee.” As I agree with the
majority that the word “prorate” simply means to divide
or distribute proportionately, the question in this case is
simply whether the attorney fees are to be divided be-
tween the claimant and the employer, or the claimant and
the medical provider.
4
4
For the reasons explained earlier, I believe that the majority has
simply concluded that the employer must always pay the claimant’s
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Reading the first sentence of the statutory provision
together with the last two sentences leads to the con-
clusion that the fees may be prorated between the
claimant and the employer. The first sentence estab-
lishes an affirmative duty on the employer to pay
reasonable medical expenses for work-related injuries.
However, if the employer “fails, neglects, or refuses so
to do,” payment can be compelled, either by reimburs-
ing the claimant or paying the claimant’s medical
creditors directly. The last sentence of the statute
relates to the sentence preceding it, permitting the
proration of attorney fees between the parties when the
employer “fails, neglects, or refuses” to pay needed and
reasonable medical expenses related to the claimant’s
work-related injury. In effect, this provision permits
shifting to the employer some of the attorney fee
burden that the claimant would otherwise bear.
II. ANALYTIC PROBLEMS WITH THE MAJORITY
A
Contrary to the majority’s analysis, there is no prin-
cipled basis to distinguish an employer from its insur-
ance carrier for the purposes of prorating attorney fees.
It makes little sense to suggest, as the majority does,
that the claimant’s attorney fees can only be prorated
attorneys fees. While Justice M
ARKMAN
’s interpretation of the statute is
certainly plausible, I do not believe that the structure or language of MCL
418.315(1) evinces any legislative intent to impose attorney fees upon
third-party medical creditors who are not parties to the litigation, did not
contract with or agree to the services of the plaintiff’s attorney, and are
entitled to the entirety of their fees (subject only to the cost containment
rules) both as a matter of statute and as a matter of contract. See MCL
418.315(2); Boyce v Grand Rapids Asphalt Paving Co, 117 Mich App 546;
324 NW2d 28 (1982); Zeeland Community Hosp v Vander Wal, 134 Mich
App 815; 351 NW2d 853 (1984); and Duran v Sollitt Constr Co, 135 Mich
App 610; 354 NW2d 277 (1984).
346 484 M
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between the employer and its carrier. The reasons are
fairly obvious. The statute does not say that proration
can only occur between an employer and its insurer.
Moreover, when an employer is insured, its carrier is
merely its agent: the insurer’s duty is to indemnify and
defend its insured according to the terms of the insur-
ance contract.
5
In the case of a self-insured employer,
the majority’s analysis makes even less sense since
there is only one entity—the employer—and thus no
one with whom to prorate, as the majority has ex-
empted the claimant from the proration equation. En
fin, whether the employer is self-insured or insured, the
claim is paid from the same pocket. Thus, the majority
deprives the word “prorate” of any value under any
circumstance, and employers will always bear the entire
cost of attorney fees. If the Legislature had intended
that only the employer pay a claimant’s attorney fees, it
could have easily said as much and presumably would
have done so in much more direct language.
B
As noted, this Court and the WDCA have long
recognized that a workers’ compensation claimant is
ordinarily responsible for paying his own personal at-
torney fees.
6
The majority’s holding that workers’ com-
pensation claimants are categorically excluded from
ever paying any portion of their attorney fees under
MCL 418.315(1) represents a major departure from our
caselaw and is inconsistent with MCL 418.858, which
permits the director to limit the “maximum attorney
5
Blackwell v Citizens Ins Co of America, 457 Mich 662; 579 NW2d 889
(1998).
6
Seen3supra. The majority does not mention this authority, nor does
it overrule it.
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fees” “paid by the employee.”
7
This legislative enact-
ment, permitting the limitation of attorney fees for
those representing injured workers in a workers’ com-
pensation claim, applies exclusively to disputes between
attorneys and their clients
8
and recognizes that attor-
ney fees are generally payable by the claimant.
9
Thus,
contrary to the majority’s claim that requiring a claim-
ant to pay a portion of his attorney fees would “violate
the remedial goal of the WDCA,” decades of caselaw, as
well as the plain language of MCL 418.858(2), indicate
otherwise.
C
The majority holds that the term “prorate” is limited
to “the parties who might contest the payment of
medical benefits: employers and their insurance carri-
ers.”
10
As an initial matter, nothing in the language of
this provision limits the term “prorate” to the party
“contesting” the payment of medical benefits, to the
exclusion of the party “seeking” the payment of medical
benefits. The majority adds language to the statute
because the majority imagines that an employer might
“be tempted to deny an injured employee’s request for
coverage in the hope that, in subsequent litigation, they
7
MCL 418.858(2). The predecessor of this statutory provision was first
enacted in 1912. See 1912 (1st Ex Sess) PA 10, part III, § 10; Mackin v
Detroit-Timkin Axle Co, 187 Mich 8; 153 NW 49 (1915).
8
See Gross, supra at 451 (MCL 418.858 “applies to disputes between
attorneys and their clients; it does not apply to disputes between
parties.”).
9
See May v Charles Hoertz & Son, 204 Mich 432; 170 NW 305 (1919);
Pearson v Gillard, 231 Mich 541; 204 NW 725 (1925); Vellenoweth v Gen
Motors Bldg Corp, 247 Mich 274; 225 NW 522 (1929); Rench v Kalamazoo
Stove & Furnace Co, 290 Mich 476; 287 NW 884 (1939).
10
Ante at 309.
348 484 M
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will not be found liable.”
11
However, contrary to the
apparent beliefs of the majority, an employer is not
statutorily liable for every medical expense submitted
by a claimant. Rather, pursuant to MCL 418.315, an
employer is only obligated to pay reasonable and needed
medical expenses for work-related injuries. I find noth-
ing strange or reprehensible, much less unlawful, about
an employer declining to pay medical expenses that it
had no legal obligation to pay.
Where there are legitimate legal or factual disputes to
be resolved on disputed workers’ compensation claims,
the hearing before the workers’ compensation magistrate
is the sole mechanism that settles those disputes and
determines whether the medical treatment was needed
and reasonable, and whether the medical treatment was
related to “a personal injury arising out of and in the
course of employment.” While employers should be dis-
couraged from wrongly denying medical benefits, the
majority articulates no legal or logical basis for concluding
that an employer should be discouraged from or punished
for correctly denying claims to which a claimant is not
entitled, or from seeking a resolution of arguable legal or
factual disputes that call into question the employer’s
obligation to pay.
12
Here, Chief Justice K
ELLY
’s lead opinion states that
“the magistrate’s proration of attorney fees against
11
Ante at 333 (emphasis added).
12
This is consistent with the WCAC’s treatment of MCL 418.315(1),
which permitted the award of attorney fees “in cases where an employer
or carrier has failed, neglected, or refused to pay for medical services a
claimant is clearly entitled to. Thus, an attorney fee may be awarded only
where there was non-payment in the face of a ‘clear entitlement.’ ” Beattie
v Wells Aluminum Corp, 2005 ACO 157 at 10-11 (emphasis added). See
also Scheland v Jet Box Co, 1995 ACO 242; Gessner v Keeler Brass Co,
1997 ACO 548; Gronley v St Clair Fiberglass, Inc, 2001 ACO 298;
Sikkema v Taylor Carving, Inc, 1992 ACO 469.
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defendants was appropriate, given defendants’ failure
to pay plaintiff’s medical services as mandated by
§ 315(1).”
13
However, in this case, where plaintiff was a
“leased” employee, there were genuine factual and legal
issues to be resolved regarding whether Koleaseco or BCN
Transportation Services was plaintiff’s employer, and
whether a valid workers’ compensation insurance policy
existed between BCN Transportation and Midwest Em-
ployers Casualty Company. In light of these unresolved
issues, it is unclear that Midwest unreasonably refused to
pay plaintiff’s medical benefits. Moreover, the magistrate
did not find that Midwest unreasonably refused to pay
medical benefits as the basis for assessing attorney fees
against Midwest. Rather, the magistrate assessed attorney
fees against Midwest on the basis of the “substantial
amount of work” and time expended by plaintiff’s counsel
in litigating the case. However, awarding attorney fees
based on the amount of work and time expended by the
attorney is in direct contravention of the last sentence of
§ 315(1), which contemplates the payment of attorney fees
on a contingent rather than hourly system. I would
remand this case to the magistrate to assess the issue of
attorney fees under the appropriate legal standard.
M
ARKMAN
,J.(dissenting). Because I disagree with the
majority interpretation of the statute in controversy,
MCL 418.315, I respectfully dissent.
1
I. BACKGROUND
Plaintiff , a truck driver, fell off his truck and injured his
back while working. He sought workers’ compensation
benefits under the Worker’s Disability Compensation
13
Ante at 337.
1
By the “majority interpretation,” I refer only to the result reached by
a majority of this Court in the opinions of the Chief Justice (joined by
Justice C
AVANAGH
) and Justice H
ATHAWAY
(joined by Justice W
EAVER
).
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Act (WDCA), MCL 418.101 et seq. The magistrate
granted benefits and medical costs to plaintiff, and also
imposed $46,034 against defendants for plaintiff’s at-
torney fees pursuant to MCL 418.315(1).
2
The Workers’
Compensation Appellate Commission (WCAC) affirmed.
The Court of Appeals initially denied leave to appeal,
but this Court remanded for consideration as on leave
granted on the division of defendants’ liabilities and the
assessment of attorney fees. 477 Mich 871 (2006). On
remand, the Court of Appeals affirmed the WC AC’s im-
position of liability against certain defendants, and that
issue is not the subject of this appeal. The Court of
Appeals also affirmed the WCAC’s assessment of attorney
fees against defendants. Unpublished opinion per curiam
of the Court of Appeals, issued April 17, 2008 (Docket Nos.
273293 and 273294). The majority determined that attor-
ney fees could be imposed on employers and their insurers
under § 315(1), while Judge Z
AHRA
, in dissent, concluded
that § 315(1) did not allow such imposition. This Court
granted leave to appeal to consider the meaning of
§ 315(1), 482 Mich 994 (2008), and now affirms the Court
of Appeals. Because I believe the Court of Appeals dissent
is correct, I dissent.
II. STANDARD OF REVIEW
Questions of statutory interpretation are reviewed de
novo. Brackett v Focus Hope, Inc, 482 Mich 269, 275;
753 NW2d 207 (2008).
III. STATUTE
MCL 418.315(1) provides, in part:
2
Defendants are various business entities that were either found to be
plaintiff’s “employer” for purposes of the WDCA or else liable for those
payments as insurers.
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The employer shall furnish, or cause to be furnished, to
an employee who receives a personal injury arising out of
and in the course of employment, reasonable medical,
surgical, and hospital services and medicines, or other
attendance or treatment recognized by the laws of this
state as legal, when they are needed...Theemployer shall
also supply to the injured employee dental service,
crutches, artificial limbs, eyes, teeth, eyeglasses, hearing
apparatus, and other appliances necessary to cure, so far as
reasonably possible, and relieve from the effects of the
injury. If the employer fails, neglects, or refuses so to do,
the employee shall be reimbursed for the reasonable ex-
pense paid by the employee, or payment may be made in
behalf of the employee to persons to whom the unpaid
expenses may be owing, by order of the worker’s compen-
sation magistrate.
[
3
]
The worker’s compensation magis-
trate may prorate attorney fees at the contingent fee rate
paid by the employee.
The instant dispute centers on the meaning of the final
sentence, specifically what it means for the magistrate
to be allowed to “prorate attorney fees.” Plaintiff con-
tends, and a majority of this Court agrees, that this
sentence allows a magistrate, when granting a recovery
under the penultimate sentence, to order the employer
to pay, in addition to the amount awarded for reim-
bursement of unpaid medical expenses, the employee’s
attorney fees attributable to the unpaid benefits.
4
De-
fendants, however, argue that the final sentence allows
3
Presumably, if the employee has not paid the reasonable expenses for
“medical, surgical, and hospital services,” then the medical providers of
those services are the “persons to whom the unpaid expenses may be
owing.”
4
Under this approach, if the magistrate ordered the employer to pay
either the employee or a medical provider $2,000 for unpaid expenses, the
magistrate could also order the employer to pay the employee’s attorney
fees for the contingency fee on that amount. Assuming a 30% contingency
fee, the employer would pay $2,600 total, with $2,000 paid to the
employee or medical provider and $600 paid to the employee’s attorney.
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a magistrate, when ordering an employer to pay unpaid
medical expenses to “persons to whom the unpaid
expenses may be owing,” to deduct a proportionate
share from those payments for the employee’s attorney
fees.
5
The primary goal of statutory interpretation is to
discern and give effect to the Legislature’s intent. Neal
v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). A
court first looks at the statute’s language, Brown v
Detroit Mayor, 478 Mich 589, 593; 734 NW2d 514
(2007), from which “the Legislature’s intent must be
gathered,” Frankenmuth Mut Ins Co v Marlette Homes,
Inc, 456 Mich 511, 515; 573 NW2d 611 (1998) (quota-
tion marks omitted). When reviewing the statute, “[a]ll
words and phrases shall be construed and understood
according to the common and approved usage of the
language,” MCL 8.3a, and “a word or phrase is given
meaning by its context or setting,”
6
Koontz v Ameritech
Services, Inc, 466 Mich 304, 318; 645 NW2d 34 (2002).
I agree with the Court of Appeals dissent, and with
defendants, that the better interpretation of § 315(1)’s
final sentence is that a magistrate can apportion an
amount of the employee’s attorney fees from an employ-
er’s payment to the medical care providers. This inter-
pretation rests principally on the meaning of “prorate,”
which means “to divide, distribute, or calculate propor-
tionately.” Random House Webster’s College Dictionary
(1997). Thus, the final sentence can be read to allow the
5
Under this approach, if the magistrate ordered the employer to pay a
medical provider $2,000 for unpaid expenses, the magistrate would
apportion an amount based on the employee’s contingency fee from that
payment to go towards the employee’s attorney fees. Assuming a 30%
contingency fee, the employer would pay $2,000, with $600 paid to the
employee’s attorney and $1,400 paid to the medical provider.
6
“It is only, therefore, within a context that a word, any word, can
communicate an idea.” Leach v FDIC, 860 F2d 1266, 1270 (CA 5, 1988).
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magistrate to either divide or distribute proportionately
attorney fees. That the division or distribution must be
proportionate necessarily implies that there must be
some basis, or rational calculation, upon which the total
amount of attorney fees can be divided or distributed.
This basis becomes increasingly apparent when
§ 315(1)’s final sentence is considered with the previous
sentence, in which the magistrate is directed to order
the employer to make “payment... in behalf of the
employee to persons to whom the unpaid expenses may
be owing.” Thus, payments will be made to medical
providers in the amount of the unpaid expenses owed by
the employee. These payments logically supply the basis
upon which the attorney fees can be proportionately
divided, because each payment constitutes a portion of
the whole on which the employee’s attorney fees are
calculated.
7
That is, if the magistrate orders payment to
multiple medical providers, then a share of the employ-
ee’s attorney fees is deducted from each payment based
on the proportion of the whole that each payment
represents.
The Legislature’s use of the word “may” to confer
upon the magistrate the authority to “prorate attorney
fees” lends further support to this interpretation. By
this word choice, the Legislature has indicated that
there are times when a magistrate might not “prorate
attorney fees.” If “prorate” is interpreted to allow a
division of fees between medical care providers, then
the use of “may” in this context makes sense. In those
7
This interpretation reflects the common understanding of the term
“prorate” as often used, for example, in rental arrangements. A landlord
will often “prorate” the tenant’s rent when the lease does not begin on
the first of the month. The tenant pays a prorated amount of the monthly
rent based on the number of days (out of the whole month) that the
tenant will be living in the apartment before the beginning of the next
month.
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instances that the magistrate directs payment to the
medical providers, the magistrate would divide the fees,
but when the magistrate only ordered reimbursement
to the employee for his or her “reasonable expenses
paid,” the magistrate would not divide the fees. Thus,
the final sentence recognizes that under the penulti-
mate sentence the magistrate may direct payment ei-
ther to the employee, in which case the division of
attorney fees would be inappropriate, or the magistrate
may direct payment to multiple medical care providers,
or to the employee and medical care providers, in which
case division of the attorney fees would be appropriate.
By contrast, the majority interpretation of § 315(1)’s
final sentence allows a magistrate to impose attorney
fees against the employer, in addition to the payment
for unpaid medical expenses, with utterly no direction
concerning the circumstances in which the magistrate
should do so. That is, the majority interpretation ac-
cords the magistrate the discretion to assess attorney
fees against an employer when the employer “fails,
neglects, or refuses” to pay benefits, but provides no
guidance for ascertaining when that discretion should
or should not be exercised. Had the Legislature truly
intended for the magistrate to impose attorney fees
against an employer, it seems likely that the Legislature
would have included some standard for determining the
circumstances under which fees should be assessed.
8
8
The Chief Justice asserts that giving the magistrate such standard-
less discretion is supported by “[o]ther provisions of the WDCA that vest
discretion in magistrates using the word ‘may’....”Ante at 309 n 19.
Contrary to her assertion, however, those other provisions do not
similarly vest in a magistrate standardless discretion; rather, they
provide at least some specific direction by which the magistrate is to
exercise his discretion. With regard to the final sentence of § 315(1), this
dissent finds that direction in the penultimate sentence of § 315(1); by
contrast, the Chief Justice finds the penultimate sentence to be irrel-
evant to her analysis.
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Even more troubling is that the Chief Justice appar-
ently finds the entire final sentence of § 315(1) irrel-
evant in concluding that a magistrate can impose attor-
ney fees against an employer. She states:
[T]he word “may” bears on whether a proration must
occur if a magistrate does award attorney fees....Should a
magistrate determine that only one [party] is liable, the
magistrate may impose attorney fees against only that party.
Conversely, should the magistrate find multiple parties liable,
fees may be prorated accordingly. [Ante at 310.]
Thus, the Chief Justice interprets § 315(1) to allow a
magistrate to impose attorney fees absent any “proration”
of the fees because she interprets “may” as according the
magistrate the discretion to decide “whether a proration
must occur,” after he has already decided to award
attorney fees. If the magistrate determines that the attor-
ney fees should be imposed on “multiple parties,” then the
magistrate can “prorate” or divide the fees among those
parties. However, if “only one [party] is liable,” the mag-
istrate can impose the fees “against only that party”
without having to “prorate” or divide the fees at all. This
completely fails to recognize that § 315(1) only allows the
magistrate to “prorate” or not “prorate” attorney fees.
Interpreting § 315(1) to allow the magistrate to impose
attorney fees without relying on the specific authority to
“prorate” reads an authorization into the statute that
clearly does not exist.
The Chief Justice supports her interpretation by
reasoning that because the “statute . . . provides a pro-
cess for employers and their insurance carriers to object
to the medical treatment that an injured employee
seeks,” the final sentence “when read with the remain-
der of the statute, applies to the parties who might
contest the payment of medical benefits: employers and
their insurance carriers.” Ante at 309. That is, to
356 484 M
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“harmonize[] the final sentence with the remainder of
§ 315,” and to avoid the final sentence “stand[ing] alone,”
§ 315(1)’s final sentence must be read to impose addi-
tional liability on employers and their insurers, in order to
maintain a “unity of purpose.” Ante at 308-309, 336; see
also ante at 342 (H
ATHAWAY
, J., concurring). Contradicting
this pursuit of “harmony” and “unity,” however, are
fundamental differences between § 315(1)’s final sentence
and the preceding sentences, which clearly establish an
employer’s liability for particular expenses. In these pre-
ceding sentences, the Legislature states that the employer
“shall furnish, or cause to be furnished,” various reason-
able medical expenses and that the employer “shall also
supply” various correctional devices (e.g., eyeglasses, arti-
ficial limbs, crutches). MCL 418.315(1). If the employee
pays these reasonable expenses, then under the penulti-
mate sentence the employee “shall be reimbursed” for the
reasonable expense paid by the employee. Id. Thus, the
penultimate sentence relates back to the listed expenses
that an employer “shall” pay. A ttorney fees are not in-
cluded in those expenses; yet the majority interpretation
effectively gives the phrase “may prorate” the same mean-
ing as the phrases “shall furnish” and “shall supply” so
that the final sentence imposes an additional payment
obligation upon the employer. This conclusion is contrary
to the logical assumption that, had the Legislature in-
tended to affirmatively impose payment of attorney fees
upon an employer, it would have done so with at least
approximately the same clarity with which it imposed
liability for other expenses upon the employer earlier
within the same subsection.
9
Instead, the Legis-
9
Indeed, the Legislature has been fairly consistent throughout the WDCA
when it imposes liability against the employer. For example, MCL 418.301(1)
states that an employee “shall be paid compensation as provided in this
act”; MCL 418.345 states that “the employer shall pay, or cause to be paid,
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lature chose to use considerably different language in
the final sentence than in the immediately preceding
sentences.
10
The final sentence is much better read, in my judg-
ment, as an adjunct to the magistrate’s ability to direct
payment to medical providers established in the penul-
timate sentence. The legislative amendment adding the
final sentence to § 315(1) specifically supports such a
relationship. Before this amendment, the then-final
sentence of former MCL 412.4, which is now § 315(1)’s
penultimate sentence, only allowed the employee to
receive payment for medical expenses:
If the employer shall fail, neglect or refuse so to do, such
employee shall be reimbursed for the reasonable expense
incurred by or on his behalf in providing the same, by an
award of the commission. [MCL 412.4, as amended by 1955
PA 250.]
When the Legislature amended the statute to allow
payment to also be directed to the medical providers, it
added the now-final sentence in dispute here:
If the employer shall fail, neglect or refuse so to do, such
employee shall be reimbursed for the reasonable expense
paid by him, or payment may be made in behalf of such
employee to persons to whom such unpaid expenses may be
owing, by an award of the commission. The commission
may prorate attorney fees in such cases at the contingent
fee rate paid by such employee and it may also prorate such
payments in the event of redemptions. [MCL 412.4, as
amended by 1963 PA 199.]
the reasonable expense of the employee’s last sickness, funeral, and
burial”; and MCL 418.351(1) states that “the employer shall pay” weekly
compensation when the employee is totally incapacitated from work.
(Emphasis added.)
10
Although the Chief Justice and Justice H
ATHAWAY
purport to “read
[§ 315(1)’s final sentence] with the remainder of the statute,” ante at 309
and ante at 342 (H
ATHAWAY
, J. concurring), both fail to even give consider-
ation to the language in the immediately preceding sentence.
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Thus, the magistrate’s ability to “prorate attorney fees”
directly accompanied the magistrate’s ability to direct
payments to medical providers.
11
This association seems
to indicate that the Legislature recognized that when
medical providers received payment from the employer,
the medical providers themselves could fairly be said to
have been enriched by the work of the employee’s
attorney.
Prior to the amendment, a medical provider was
relegated to seeking payment from the employee
through a separate cause of action. Even if the medical
providers recovered the full amount in the action, each
would still have to pay its own attorney costs due to the
longstanding “American Rule” regarding attorney
fees.
12
In effect, the Legislature set forth a shortcut to
11
Recognizing that “not all legislative history is of equal value,” In re
Certified Question, 468 Mich 109, 115 n 5; 659 NW2d 597 (2003), this
amendment of the statute constitutes the legislative action that estab-
lished the present relationship between § 315(1)’s penultimate and final
sentences that can be gleaned from the sentences themselves. See supra
at 354-355. As such, the fact of this amendment represents what is clearly
the most compelling form of legislative history, because it is derived
purely from the enacted words of the statute. On the other hand, relying
on legislative history based upon a legislative analysis, see, e.g., Adrian
School Dist v Michigan Pub School Employees’ Retirement Sys, 458 Mich
326, 335; 582 NW2d 767 (1998) (K
ELLY
, J.); Omne Financial, Inc v
Shacks, Inc, 460 Mich 305, 315 n 12; 596 NW2d 591 (1999) (K
ELLY
, J.),
created by staff offices within the Legislature is significantly less com-
pelling, In re Certified Question, 468 Mich at 115 n 5, and legislative
history that relies exclusively upon the statements of a single one of 110
members of the House of Representatives, or a single one of 38 members
of the state Senate, is even less compelling.
12
In Haliw v Sterling Hts, 471 Mich 700, 706-707; 691 NW2d 753
(2005), we stated:
Michigan follows the “American rule” with respect to the
payment of attorney fees and costs. Under the American rule,
attorney fees generally are not recoverable from the losing party as
costs in the absence of an exception set forth in a statute or court
rule expressly authorizing such an award. [Citation omitted.]
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this practice in § 315(1). Rather than requiring medical
providers to hire their own attorneys and commence
separate actions against the employee, § 315(1) now
allows the medical provider to recover through the
action instituted by the employee.
13
Medical providers
receive the same reimbursement amount as they did
before the amendment, while employees retain more of
the recovery to which they are entitled.
14
13
This is similar to the arrangement provided by § 821(2), which allows
an employee to assign a portion of his workers’ compensation award to an
insurance company, health maintenance organization, or medical care
and hospital service corporation that makes an advance or payment to
the employee under an insurance policy that provides that benefits are
not payable for workers’ compensation injuries. Upon enforcement of
that assignment, the insurance company, health maintenance organiza-
tion, or medical care and hospital service corporation shall pay “a portion
of the attorney fees of the attorney who secured the worker’s compensa-
tion recovery.” MCL 418.821(2). Thus, the employee retains an attorney
to recover benefits, and the recovery subject to the assignment helps pay
the employee’s attorney fees.
Likewise, pursuant to § 827, a nonparty employer can recover
through the efforts of an employee’s attorney pursuing a third-party
liability action, whereby an employee can seek recovery for the same
damages he “would be entitled to recover in an action in tort.” MCL
418.827(5). If the employee recovers, then he shall first “reimburse the
employer or carrier for any amounts paid or payable” under the WDCA,
reduced by “expenses of recovery,” id., which include “reasonable expen-
ditures, including attorney fees, incurred in effecting recovery,” MCL
418.827(6). Thus, the employer does not recover the full amount it paid
under its workers’ compensation policy. R ather, the full amount is less
any attorney fees, which the employer would have had to pay had it sued
the third party for recovery as it is entitled to do. MCL 418.827(1)
(employer can bring suit against third party in name of employee if one
year has passed since the employee’s injury). This reduction of the
recovery amount is the same as when a magistrate “prorates” pursuant
to § 315(1)’s final sentence.
14
The financial outcome for medical providers remains the same,
whereas, by eliminating the need for providers to hire attorneys, the
employee actually keeps more of his medical expenses. For example,
assume that an employee has paid $3,000 in medical expenses provided
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The majority interpretation would impose an addi-
tional cost upon the workers’ compensation process by
penalizing employers and forcing them to pay not only
for their own attorneys, but also for their employees’
attorneys. This increased expense is at odds with MCL
418.801(3), in which the Legislature has already pro-
vided a penalty for unpaid medical benefits:
If medical bills or travel allowance are not paid within
30 days after the carrier has received notice of nonpayment
by certified mail, in cases where there is no ongoing
dispute, $50.00 or the amount of the bill due, whichever is
less, shall be added and paid to the worker for each day over
30 days in which the medical bills or travel allowance are
not paid. Not more than $1,500.00 in total may be added
pursuant to this subsection.
The majority interpretation would establish a new
penalty provision with § 315(1)’s final sentence that is
for in § 315(1) and still owes a medical provider $2,000 for such expenses.
Further assume that attorney fees are 30% of any recovery. Prior to the
addition of § 315(1)’s final sentence, an employee would seek recovery of
$5,000 from the employer and, upon receiving that amount, would owe
his attorney $1,500. After the medical provider commenced an action for
the $2,000 and obtained a judgment for that amount, the employee would
be left with $1,500, half of what he paid. The medical provider would owe
its attorney $600, meaning that the medical provider recovered $1,400
for its $2,000 bill. Thus, the employee retained $1,500, the medical
provider retained $1,400, and the attorneys (employee’s and medical
provider’s) went home with $2,100. On the other hand, after the addition
of § 315(1)’s final sentence as interpreted in this dissent, the magistrate
would direct payment of $2,000 to the medical provider but with $600
appropriated for the employee’s attorney. The magistrate would also
direct payment of $3,000 to the employee but with $900 appropriated for
the employee’s attorney. As a result, the medical provider recovers the
same amount that it would have recovered in a separate action against
the employee, but the employee is left with $2,100, which is $600 more
than he would have recovered under the old system. The $600 is available
because the Legislature provided a way in which recovery could be
realized by both the employee and the medical provider without requiring
both to hire their own attorneys.
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inconsistent with the WDCA’s actual penalty provision,
in which the Legislature expressly provides for a pen-
alty payment only “where there is no ongoing dispute.”
Nothing in the majority interpretation prevents the
attorney-fees penalty from operating even in the pres-
ence of a dispute, which is directly contrary to when the
Legislature has stated a penalty should apply. If the
Legislature intended § 315(1) to operate as a penalty
provision, then it would seem that such penalty would
at least be assessed consistently with the penalty pro-
vided under § 801(3). This lack of consistency casts
further doubt on the majority interpretation.
With respect to the magistrate’s authority over medi-
cal providers that are not parties to the action, § 315(2)
implies that the magistrate indeed does have authority
over medical providers when they are operating in the
context of § 315 by providing that any recovery by a
medical provider can be reduced by the magistrate to
the “maximum charge established under the rules.”
(Emphasis added.) Thus, the magistrate may reduce the
provider’s recovery even if the provider is not a party to
the action. It follows that the magistrate has the same
ability to reduce the recovery to pay for an employee’s
attorney fees when the statute grants the magistrate
such authority in § 315(1).
15
15
I also respectfully disagree with Justice Y
OUNG
’s interpretation that
§ 315(1) “permit[s] the magistrate to prorate attorney fees between the
claimant and the employer....”Ante at 343. First, he does not account
for why the magistrate’s authority to “prorate attorney fees” is only
triggered “[w]hen an employer unjustifiably refuses to fulfill its statutory
duty to pay for medical expenses....”Ante at 344. It would seem more
logical under his interpretation that a magistrate could impose attorney
fees against an employer any time the employer “fails, neglects, or
refuses” to pay for the medical expenses. Nowhere does the statute
include the caveat that the refusal must be “unjustified” before the
magistrate can “prorate” the fees. Second, the statute directs proration
“at the contingent fee rate paid by the employee,” MCL 418.315(1), not
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In conclusion, several clues supplied by § 315(1) and
the WDCA support the interpretation set forth in this
dissent. Particularly relevant in this regard are: (1) the
use of “prorate,” the proportionality of the division this
term conveys, and the fact that there is some logical
standard or basis for calculating proportions under this
interpretation, but not under the majority interpreta-
tion; (2) the use of “may” in describing the magistrate’s
authority to prorate, and the fact that there is some
logical standard or basis for exercising this authority
under this interpretation, but not under the majority
interpretation; (3) the consistency of this interpreta-
tion, and the lack of consistency of the majority inter-
pretation, with the penalty provision in § 801(3); (4) the
fact that the majority interpretation reads words into
§ 315(1) that are absent and nullifies words that are
present; (5) the significant differences in language
between the introductory sentences of § 315(1), which
clearly establish an employer’s liability for particular
expenses, and its final sentence, which does nothing
equivalent; (6) the logical implications drawn from
§ 315(1)’s final sentence being positioned after the
penultimate sentence, and the legislative amendment of
§ 315(1); and (7) the similarity in the arrangement
between employees’ attorneys and medical providers
“according to the respective merits of [the parties’] positions,” ante at
344. Third, the penultimate sentence “provides two options”—the mag-
istrate can direct payment to the employee or to medical providers—and
Justice Y
OUNG
, in my judgment, fails to recognize that these options
provide an obvious statutory basis upon which the magistrate can
exercise his discretion to “prorate attorney fees.” Finally, although
medical providers are, in fact, “entitled to the entirety of their fees”
before litigation, ante at 346 n 4, the reality is that a recovery will always
be subject to attorney fees. Rather than “impos[ing]” fees against the
providers, the Legislature created a mechanism whereby the fees are
simply deducted from the recovery being paid to the provider, and
whereby the number of “parties to the litigation” can be reduced, without
affecting the outcome to those potential parties.
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set forth in this dissent and the arrangement between
employees’ attorneys and nonparties set forth in §§ 821
and 827.
IV. RESPONSE TO THE CHIEF JUSTICE
Not content with merely misconstruing the law, the
Chief Justice adopts an approach to statutory interpre-
tation that can only be described as bizarre. She begins
her interpretation by asserting that the “threshold
question is whether . . . the last sentence of § 315(1) is
ambiguous.” Ante at 308.
16
After an entirely gratuitous
citation to the dictionary definition of “prorate,” one
that promptly proves to be irrelevant to any subsequent
analysis, the Chief Justice determines that “the term
‘prorate’ could reasonably apply to employers, their
insurance carriers, health care providers, employees
seeking workers’ compensation benefits, or to any com-
bination of them.” Ante at 308. This finding should
come as no surprise considering the Chief Justice’s
focus on the word “prorate” without regard to its
context. Next, the Chief Justice initially determines
that “neither § 315 as a whole nor any other provision
of the WDCA indicates the parties to whom a division or
distribution of attorney fees applies,” but nevertheless
proceeds to adopt her own interpretation because it
“unifies the last sentence of § 315(1) with the remain-
der of the statute.” Ante at 308-309. Satisfied that her
interpretation also gives effect to the word “may,” cf.
supra at 356, the Chief Justice then concludes that her
interpretation “affords the phrase ‘may prorate’ its full
meaning.” Ante at 310. After all of this, the Chief Justice
continues to answer her “threshold question” in the
affirmative, concluding that the statute is ambiguous
16
I note that this approach has not garnered majority support on this
Court.
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because other “interpretations of § 315(1) exist.” Ante
at 310. That is, rather than even giving the appearance
that she has reached the conclusion that the statute is
“ambiguous” based upon her difficulty in ascertaining
its meaning, the Chief Justice withdraws from the
process of statutory interpretation once other interpre-
tations are presented. It is apparently much easier to
summarily declare “ambiguity,” and thereby avoid the
inconvenience of having to actually carry out one’s
judicial duties by deciding what the statute or contract
actually states.
17
A. AMBIGUITY
As evident from her “interpretation” here, the Chief
Justice’s dependence on an extraordinarily low thresh-
old for finding ambiguity, and her resultant conclusion
that § 315(1) is, of course, “ambiguous,” are essential to
her analysis. The Chief Justice then proceeds on the
assumption that, once ambiguity has been established,
a judge is essentially unencumbered by any serious
restraints imposed by the language of a statute or
contract and effectively has carte blanche to utilize
whatever factors are deemed appropriate in reaching a
result.
I disagree with this approach to “interpretation,” not
merely because it divorces the interpretative process
from the law that is purportedly being “interpreted,”
but also because it raises the unavoidable suspicion that
17
Because interpreting either statutes or contracts requires a court to
give meaning to specific language, the interpretative approach signaled
by a particular view of ambiguity “applies with equal force whether the
court is interpreting a statutory text or a contractual one.” Mayor of
Lansing v Pub Service Comm, 470 Mich 154, 165 n 6; 680 NW2d 840
(2004). See also Ellis v Farm Bureau Ins Co, 482 Mich 1119, 1120-1121
(2008); Zahn v Kroger of Michigan, 483 Mich 34, 40 n 8; 764 NW2d 207
(2009).
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a judge is reaching the result he or she would personally
prefer rather than the result compelled by the law. That
is, instead of abiding by the traditional exercise of the
“judicial power” in which the judge, employing the
statute or contract itself as the lodestar, says only what
the law “is,” the Chief Justice by her understanding of
ambiguity would effectively exercise the “legislative
power” to say what the law “ought to be” by arbitrarily
picking and choosing among a practically limitless va-
riety of available extra-textual considerations.
18
For the
Chief Justice, the concept of ambiguity is one to be both
casually and peremptorily invoked—as in this case in
which no party has even asserted that the statute is
ambiguous—to avoid the discipline of the traditional
judicial process, while maintaining at least some ap-
pearance that this process has been respected. The
lower the barrier to finding ambiguity, the more effort-
lessly a judge can dispense with the hard work of giving
meaning to difficult and complex provisions of statutes
and contracts, and the less risk that this regular process
of interpretation will lead to the “wrong” results. A
facile resort to ambiguity affords the judge a readily
available means of acting beyond the scope of his or her
authority to exercise exclusively the “judicial power.”
It is hard to conceive of a much lower barrier to
ambiguity than that propounded by the Chief Justice. A
statute, we are instructed, is “ambiguous” when it is
“capable of being understood by reasonably well-
18
When deciding a case, the judiciary’s role is, and has always been, to
answer the question, “what is the law, and not what ought the law to be.”
Detroit v Blackeby, 21 Mich 84, 118 (1870) (C
OOLEY
, J., dissenting); see
also Michigan United Conservation Clubs v Secretary of State (After
Remand), 464 Mich 359, 397; 630 NW2d 297 (2001) (M
ARKMAN
,J.,
concurring), citing Marbury v Madison,5US(1Cranch)137;2LEd60
(1803). “It is for the court to declare what the law is—not to make it.”
Wilson v Arnold, 5 Mich 98, 104 (1858).
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informed persons in two or more different senses.”
19
Ante at 331. If this definition does not describe almost
all litigation coming before this Court, it certainly
describes much of this litigation. There are relatively
few appellate litigants—most of whom have undertaken
the financial burdens of litigation, accepted the psycho-
logical and emotional tolls of a protracted legal process,
and endured trial, intermediate appeal, Supreme Court
appeal, remands, and motions for reconsideration, all
while being represented by attorneys who are ethically
obligated to ensure some degree of meritoriousness in
their clients’ legal positions—whose statutory and con-
tractual disputes could not be fairly characterized un-
der the Chief Justice’s definition as entailing ambiguity.
Indeed, little would be clearly excluded from the realm
of ambiguity by her definition other than genuinely
frivolous lawsuits, which are both rare and sanction-
able. Matters of interpretation are resolved in judicial
venues precisely because statutes and contracts are
19
The Chief Justice also states that a statute is ambiguous when “two
persons reasonably afford [a] different meaning[ ]” to it, or when it is “of
questionable or unclear meaning.” Ante at 328. She has previously opined
that a statute is ambiguous “when its application to the facts of the case
is uncertain,” DaimlerChrysler Corp v State Tax Comm, 482 Mich 220,
240 n 2; 753 NW2d 605 (2008) (K
ELLY
, J., concurring in the result), or
when “there can be reasonable disagreement over its meaning,” Fluor
Enterprises, Inc v Dep’t of Treasury, 477 Mich 170, 186; 730 NW2d 722
(2007) (K
ELLY
, J., concurring). As with her latest definition of ambiguity
in this case, what would be truly remarkable about any of these
definitions would be if they served to exclude many statutory or contrac-
tual disputes from their purview. “Uncertainty” and “disagreement” are
what draw parties into litigation in the first place. See also Nat’l Pride at
Work, Inc v Governor, 481 Mich 56, 95 n 34; 748 NW2d 524 (2008) (K
ELLY
,
J., dissenting), in which the Chief Justice asserted that a general
provision of Michigan’s constitution was “ambiguous” because it did not
expressly set forth every specific circumstance to which it was applicable.
The majority responded, “If that were the case, almost all constitutional
provisions would be rendered ambiguous.” Id. at 81 n 21.
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susceptible to “being understood by reasonably well-
informed persons in two or more different senses.”
Even more remarkable, however, is that the Chief
Justice’s own “analysis” in this case does not even
satisfy her own low threshold for discerning ambiguity,
since there is nothing therein that suggests that either
the plaintiff’s or the defendants’ position is “reason-
able.” In fact, the Chief Justice never once compares
any interpretation other than her own to the statute.
She simply notes the “exist[ence]” of competing inter-
pretations and declares ambiguity. Ante at 310. Essen-
tially, the Chief Justice’s standard for discerning ambi-
guity is more accurately stated as: “A statute is
ambiguous when parties offer conflicting interpreta-
tions.”
20
The Chief Justice has previously observed, “I find
frequent ambiguity in statutory language.” Haynes v
Neshewat, 477 Mich 29, 40; 729 NW2d 488 (2007)
(K
ELLY
, J., concurring).
21
This is not surprising. For once
20
Such disagreement between parties is hardly a precedent-shattering
event in this Court.
21
At least in this regard, she is unquestionably correct. See, for
example, the following list of cases enumerated in footnote 56 of the Chief
Justice’s opinion to get some sense of the breadth of the matters that she
apparently views as “ambiguous” among our published opinions over the
past five years alone. With regard to each of these “examples,” the
dissenting justices in this case are implicitly chastised for having “de-
clined” to find ambiguity:
See, e.g., Dimmit & Owens Fin, Inc v Deloitte & Touche, 481
Mich 618; 752 NW2d 37 (2008); Ross v Blue Care Network, 480 Mich
153; 747 NW2d 828 (2008); Wesche v Mecosta Co Rd Comm, 480
Mich 75; 746 NW2d 847 (2008); Ernsting v Ave Maria College, 480
Mich 985 (2007); Trentadue [v Buckler Automatic Lawn Sprinkler
Co, 479 Mich 378; 738 NW2d 664 (2007)]; Lash v Traverse City, 479
Mich 180; 735 NW2d 628 (2007); Brown [v Detroit Mayor, 478 Mich
589; 734 NW2d 514 (2007)]; Renny v Dep’t of Transportation, 478
Mich 490; 734 NW2d 518 (2007); South Haven v Van Buren Co Bd of
Comm’rs, 478 Mich 518; 734 NW2d 533 (2007); Omdahl v West
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a statute or contract has been deemed “ambiguous,”
this Court “may go beyond the plain language of the
statute [or contract],” ante at 307-308, and then employ
decision-making factors that would ordinarily be un-
available in the interpretative process. There is no lack
of variety in these newly available factors. As I offered
in my concurring opinion in Haynes:
Having reached the proper result in this case through a
proper legal analysis, Justice K
ELLY
in a concurrence to her
own majority opinion proceeds to demonstrate that she
IronCoBdofEd, 478 Mich 423; 733 NW2d 380 (2007); Bukowski
v Detroit, 478 Mich 268; 732 NW2d 75 (2007); Karaczewski [v
Farbman Stein & Co, 478 Mich 28; 732 NW2d 56 (2007)]; Fluor
[Enterprises, Inc v Dep’t of Treasury, 477 Mich 170; 730 NW2d 722
(2007)]; Rowland [v Washtenaw Co Rd Comm, 477 Mich 197; 731
NW2d 41 (2007)]; People v Peals, 476 Mich 636; 720 NW2d 196
(2006); Paige [v Sterling Hts, 476 Mich 495; 720 NW2d 219
(2006)]; Cameron v Auto Club Ins Ass’n, 476 Mich 55; 718 NW2d
784 (2006); Ford Motor Co v Woodhaven, 475 Mich 425; 716 NW2d
247 (2006); People v Derror, 475 Mich 316; 715 NW2d 822 (2006);
People v Williams, 475 Mich 245; 716 NW2d 208 (2006); People v
Yamat, 475 Mich 49; 714 NW2d 335 (2006); Grimes [v Dep’t of
Transportation, 475 Mich 72; 715 NW2d 275 (2006)]; Michigan v
Monaco, 474 Mich 48; 710 NW2d 46 (2006); Ostroth v Warren
Regency, GP, LLC, 474 Mich 36; 709 NW2d 589 (2006); Co Rd Ass’n
v Governor, 474 Mich 11; 705 NW2d 680 (2005); Devillers [v Auto
Club Ins Ass’n, 473 Mich 562; 702 NW2d 539 (2005)]; Reed v
Yackell, 473 Mich 520; 703 NW2d 1 (2005); Ayar v Foodland
Distributors, 472 Mich 713; 698 NW2d 875 (2005); Casco Twp [v
Secretary of State, 472 Mich 566; 701 NW2d 102 (2005)]; Elezovic
v Ford Motor Co , 472 Mich 408; 697 NW2d 851 (2005); Jarrad v
Integon Nat’l Ins Co, 472 Mich 207; 696 NW2d 621 (2005); Roberts
v Atkins, 470 Mich 679; 684 NW2d 711 (2004); Neal [v Wilkes, 470
Mich 661; 685 NW2d 648 (2004)]; People v Barbee, 470 Mich 283;
681 NW2d 348 (2004); [People v] Lively, [470 Mich 248; 680 NW2d
878 (2004)]; People v Laney, 470 Mich 267; 680 NW2d 888 (2004);
Lansing Mayor [v Pub Service Comm , 470 Mich 154; 680 NW2d
840 (2004)].
It should be clearly understood that in each of these cases, as well as in
all other cases in which ambiguity is found, justice under the law would
be replaced by the personal “justice” of the men and women who
comprise the Court’s majority. This is the “rule of men [and women],” not
theruleoflaw.
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could have reached the same result through less disciplined
means. Not content to rely, as she does in her majority
opinion, on the actual language of the law, Justice K
ELLY
invokes an array of alternative techniques to “interpret”
the law in her concurring opinion. She relies upon a
“liberal construction” of the statute in question; she relies
upon characterizations of the statute as “broad” and “re-
medial”; she relies upon a summary description of the law
as “ambiguous,” therefore apparently affording her the
discretion to pick and choose the law she prefers; she relies
upon the Legislature’s inaction in the wake of an earlier
court decision, equating this to approval of the Court’s
decision; she disparages the value of dictionaries as an
essential tool in the interpretative process; and she relies
upon an extraordinarily broad understanding of “legisla-
tive history.” For the sake of future reference, a further
catalogue of language-avoidance “interpretative” tech-
niques would include the following: divining the “spirit of a
statute”; relying upon considerations of “public policy”;
standardlessly applying “equity”; characterizing statutes
with which a judge disagrees as “absurd”; and concocting
creative “balancing” and “totality of circumstances” tests.
Innovatively applied, each of these techniques can be relied
upon to avoid the hard task of having to discern a statute’s
meaning from its actual language. [Haynes, 477 Mich at
48-49 (M
ARKMAN
, J., concurring).]
The use of these and other factors to reach a decision far
more closely resembles the exercise of the constitution’s
“legislative power” than its “judicial power.” It is an
undisciplined and standardless approach to giving
meaning to the law, enabling the judge at his or her
discretion to determine which factors to take into
account, and what priority to give those factors.
22
It is
22
“It is only by interpretations of the law that are in accord with the
words of the lawmaker—that is, interpretations in which judges look
outside themselves for a source of law—that the decisions of courts are
truly removed from the realm of politics and policymaking.” Robertson v
DaimlerChrysler Corp, 465 Mich 732, 761; 641 NW2d 567 (2002).
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an approach that disrespects the separation of powers
23
and that enhances the power of judges at the expense of
the rule of law.
24
B. DISSENT AND AMBIGUITY
The Chief Justice’s definition of ambiguity stands in
contrast to what has been the predominant approach in
our state. In Mayor of Lansing v Pub Service Comm, 470
Mich 154, 166; 680 NW2d 840 (2004), this Court stated
that “a provision of the law is ambiguous only if it
‘irreconcilably conflict[s]’ with another provision or when
it is equally susceptible to more than a single meaning.”
(Citation omitted.) Similarly, in Klapp v United Ins Group
Agency, Inc, 468 Mich 459, 467; 663 NW2d 447 (2003),
this Court found a contract to be ambiguous because two
provisions “irreconcilably conflict[ed]” with each other.
25
Such an understanding of ambiguity restricts the judge
23
“The powers of government are divided into three branches: legisla-
tive, executive and judicial. No person exercising powers of one branch
shall exercise powers properly belonging to another branch except as
expressly provided in this constitution.” Const 1963, art 3, § 2.
24
“[I]t is to the words of the statute itself that a citizen first looks for
guidance in directing his actions. This is the essence of the rule of law: to
know in advance what the rules of society are.” Robinson v Detroit, 462
Mich 439, 467; 613 NW2d 307 (2000).
25
In her assertion that this Court “has declined [during a four-year
period] to find any statutory language ambiguous,” ante at 311 n 23, the
Chief Justice fails to mention that this Court found the contract in Klapp
itself to be ambiguous and then resolved this ambiguity by the applica-
tion of the traditional rule contra proferentem (resolving a contract
dispute against its drafter). See also Stone v Williamson, 482 Mich 144,
157; 753 NW2d 106 (2008). Perhaps more to the point, however, it is odd
that the Chief Justice would make a virtue of a judge quickly throwing up
his or her hands in the face of even a slightly difficult statute and
dispensing with his or her obligation to say what the law means, while
making a vice of a judge laboring hard to determine what even a highly
difficult statute means in order to ensure that the legislative decisions of
the people’s representatives are respected.
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to saying what the law “is” based on the words chosen by
the Legislature in all but the most extraordinary circum-
stances. While the Chief Justice suggests that the relative
rarity of a finding that a law or contract is ambiguous
under this definition constitutes its vice, ante at 322-323,
by preserving a broader realm within which the ordinary
process of interpretation may proceed, and in which
deference will be shown to the decisions of the lawmaker,
this may be better understood as its principal virtue.
Many disputes before this Court involve difficult or
complex interpretations of statutes and contracts, yet it
remains our responsibility to sort out these difficulties
and complexities and finally determine what constitutes
the most reasonable, if not always the perfect or the
crystalline, meaning of the law. Judges have traditionally
approached this responsibility by looking to the language
of a statute or contract, considering relevant dictionary
definitions of words and phrases,
26
assessing the exist-
ence and meanings of “terms of art,”
27
evaluating the
context of words
28
and grammatical, syntactical, and
punctuational clues,
29
comparing related and compan-
ion provisions of the law,
30
discerning the organization
26
See Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d
34 (2002) (stating that a court “may consult dictionary definitions” to
help ascertain the meaning of terms not defined in the statute).
27
“It is a cardinal rule in the interpretation of statutes that words
which have acquired a well-defined technical meaning, are to be under-
stoodintheirtechnicalsense....” Pitcher v People, 16 Mich 142, 147
(1867); see also MCL 8.3a.
28
“[A] word or phrase is given meaning by its context or setting.” Tyler
v Livonia Pub Schools, 459 Mich 382, 391; 590 NW2d 560 (1999).
29
See Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119
(1999) (stating that “statutory language must be read and understood in
its grammatical context”).
30
“[I]n the interpretation of the statutes, we are to take into view all
such parts as relate to the same subject.” Malonny v Mahar,1Mich26,
28 (1847).
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and structure of statutes and contracts,
31
invoking
traditional default rules and maxims of interpretation,
32
and applying proper understandings of legal purpose
and precedent.
33
This should not be understood as a mechanical
process, for judges engaged conscientiously in this ex-
ercise will sometimes disagree about the meaning of the
law, but it is a process in which the focus is directed
outwardly toward the language of the statute or con-
tract, rather than inwardly toward the personal predi-
lections of the judge.
34
As Justice Felix Frankfurter once
31
See Lash v Traverse City, 479 Mich 180, 190; 735 NW2d 628 (2007)
(rejecting an argument regarding the statute’s purported purpose as
being “completely contrary to the structure of the statute”).
32
See, e.g., In re Haley, 476 Mich 180, 198; 720 NW2d 246 (2006)
(“[W]here a statute contains a specific statutory provision and a related,
but more general, provision, the specific one controls.”).
33
See Pohutski v City of Allen Park, 465 Mich 675, 694; 641 NW2d 219
(2002) (emphasizing that a crucial aspect to the proper understanding of
precedent is that it “should not be applied mechanically to prevent this
Court from overruling erroneous decisions regarding the meaning of a
statute”).
34
The Chief Justice disparages this approach by stating that a “ ‘plain
meaning’ approach to statutory interpretation is equally susceptible to
subjective and arbitrary determinations of legislative intent” because
“such an approach may lead to the selection of one dictionary definition
among many for a specific term.” Ante at 313 n 35. The Chief Justice thus
damns the very enterprise of judging by suggesting that it can never be
anything other than “subjective” and “arbitrary,” for words may some-
times have multiple meanings. The Chief Justice then defends her own
approach to the judicial role by effectively declaring that all interpreta-
tion is nothing but a fiction in which the judge, one way or another, gets
to impose his own personal will. That is, since interpretations of the law
can sometimes be difficult, and may entail the application of judgment
and discernment, a “plain meaning” approach to interpretation (a
characterization incidentally never used by any of the justices dissenting
in this case) has no superior stature to a post-ambiguity approach to
interpretation in which words are given no respect whatsoever. By
equating the imperfections inherent in a human process in which
language is taken seriously with the fundamental defects inherent in a
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remarked, “the highest exercise of judicial duty is to
subordinate one’s personal will and one’s private views
to the law.”
C. PREMISES OF AMBIGUITY RULE
Despite the Chief Justice’s view that an understand-
ing of ambiguity does not constitute “binding prece-
dent,” she nonetheless undertakes a strenuous effort to
identify precedents in support of her position, while
process in which language is subordinate to a judge’s personal sense of
which results are to be preferred, it is hard to imagine a more mistaken,
and cynical, view of the judicial enterprise, albeit one that encapsulates
well the persistent constitutional and jurisprudential divide between the
justices in the majority and the dissenting justices.
Concerning Liberty Hill Housing Corp v City of Livonia, 480 Mich 44,
57; 746 NW2d 282 (2008), which the Chief Justice cites as somehow
exemplifying the defects of the “plain meaning” approach, this Court
explained:
The third, fourth, and fifth meanings in the definition are
clearly not relevant here. The first meaning defines “occupy” as
“to have, hold,... possess,...or claim[.]” These parts of the
definition are synonymous with ownership. Because the statute
uses the conjunctive term “owned and occupied,” however, the
Legislature must have intended different meanings for the words
“owned” and “occupied.” Otherwise, the word “occupied” would
be mere surplusage.
See also id. at 57 n 12. Thus, Liberty Hill relied on the maxim that the
Court should avoid rendering a portion of the statute nugatory or
surplusage, i.e., the Court should give effect to all the words of the
Legislature. Thus, contrary to the Chief Justice’s assertion, Liberty Hill
demonstrated that a responsible judge, attempting faithfully to give
meaning to the law, does not have “unfettered discretion to pick and
choose among available ‘plain meanings,’ ” ante at 321, but rather is
bound by existing rules, and by interpretative approaches, that are
well-known both to the judge and the parties beforehand. While such an
“interpretivist” or “textualist” approach cannot dispense entirely with
the exercise of judgment, unlike the approach preferred by the Chief
Justice, the interpretative “rules of the game” under the former approach
will be known in advance and are designed to reasonably ascertain the
intentions of the lawmaker.
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undertaking no discernible effort to actually justify her
own understanding. Rather than constituting an “ab-
errant” approach to interpretation, ante at 328 n 66,
Mayor of Lansing and Klapp set forth a rule of statu-
tory interpretation that, as with most other such rules,
is grounded in logic and common sense, and is designed
to faithfully ascertain the intentions of the Legislature.
The understanding of ambiguity articulated in Mayor of
Lansing and Klapp is premised upon longstanding
principles of sound constitutional government that are
suggested by the following inquiries directed toward
those who would advocate a broader understanding:
—When ambiguity is discerned, ordinary rules of inter-
pretation no longer apply—as the Chief Justice asserts, a
court may then “go beyond the plain language of a statute
[or contract]”—and judges are accorded broad and arbi-
trary discretion to pick and choose from among a wide
variety of factors as to how the law should be given
meaning. Why would any responsible legal system wish to
depart from its ordinary processes, from ordinary rules of
interpretation and traditional exercises of the judicial
power, with any greater frequency than is absolutely re-
quired?
—When ambiguity is discerned, ordinary rules of inter-
pretation no longer apply—as the Chief Justice asserts, a
court may then “go beyond the plain language of a statute
[or contract]”—and judges are accorded broad and arbi-
trary discretion to pick and choose from among a wide
variety of factors as to how the law should be given
meaning. Why would any responsible legal system wish to
replace a reasonably predictable rule of law with arbitrary,
and possibly idiosyncratic, determinations of judges any
more often than is absolutely required?
—When ambiguity is discerned, ordinary rules of inter-
pretation no longer apply—as the Chief Justice asserts, a
court may then “go beyond the plain language of a statute
[or contract]”—and judges are accorded broad and arbi-
trary discretion to pick and choose from among a wide
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variety of factors as to how the law should be given
meaning. Why would any responsible legal system wish to
minimize the realm in which judges are bound by the
written law and instead maximize the realm in which
written law is subrogated to a variety of indeterminate
factors at a judge’s disposal?
—When ambiguity is discerned, ordinary rules of inter-
pretation no longer apply—as the Chief Justice asserts, a
court may then “go beyond the plain language of a statute
[or contract]”—and judges are accorded broad and arbi-
trary discretion to pick and choose from among a wide
variety of factors as to how the law should be given
meaning. Why would any responsible legal system wish to
instill in litigants and the public the idea that the personal
preferences of a judge, rather than the requirements of the
law, are what is most important to the resolution of a legal
dispute?
—When ambiguity is discerned, the “judicial power,”
the only power properly exercised by a judge under the
Constitution, is exercised in a manner incompatible with
its usual exercise—as the Chief Justice asserts, a court may
then “go beyond the plain language of a statute [or con-
tract].” Why would any responsible legal system wish to
depart from traditional constitutional norms or to obscure
the Constitution’s separation of powers?
By contrast, what logical or other arguments does the
Chief Justice have for substantially expanding the
range of judicial decision-making within which courts
“may go beyond the plain language of the statute [or
contract],” and within which “it is the duty of the
courts,” instead of the lawmaker, to give a “reasonable
and sensible” interpretation to the law? Ante at
307-308. What conceivable arguments does the Chief
Justice have for favoring an expansion in the range of
judicial decision-making within which judges are em-
powered to devise, at their discretion, ad hoc and
unpredictable criteria for determining how the law will
be defined? Hers is a hollow opinion, evidenced not only
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by her failure to abide even by her own standards for
identifying ambiguity, but also by her failure to articu-
late even a minimal justification for these standards.
35
D. LOGIC OF AMBIGUITY RULE
The Chief Justice asserts that language is ambiguous
when it is “capable of being understood by reasonably
well-informed persons in two or more different senses,”
ante at 331, but she never supplies any explanation for
how this definition is to operate practically in the real
world. She fails to answer, or even ask, whether there is
some threshold beyond which it can be said that an
interpretation is “capable of being understood by rea-
sonably well-informed persons in two or more different
senses.” Is it sufficient, for example, in finding ambigu-
ity that 10% or 20% or 30% of all “reasonably well-
informed persons” might subscribe to a particular in-
terpretation? Indeed, is it sufficient that the parties
merely disagree, or must the Court intervene to deter-
mine that the position of each side is itself reasonable?
Given that the Mayor of Lansing/Klapp standard can
be quantified as a 50% test—i.e., if there are two equally
reasonable interpretations, a law is ambiguous; other-
wise it is not—how would the Chief Justice characterize
her standard? What is the approximate threshold at
which a law should be found ambiguous? Unless any
35
The Chief Justice asserts that she need not justify her standard in
light of the fact that other jurisdictions utilize similarly worded stan-
dards. Ante at 330-331 & nn 73-75. Whatever the relevance of this
observation, one doubts that any of these variants have been applied in
other jurisdictions in the wildly overreaching manner reflected by the
instant decision, reflected by the breadth of potentially “ambiguous”
cases cited at n 21 of this opinion, and reflected in the Chief Justice’s own
passion for finding “frequent ambiguity” in the law, Haynes, 477 Mich at
40 (K
ELLY
, J., concurring).
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disagreement by any single “reasonably well-informed
person[]” would be sufficient to trigger a finding of
ambiguity, where is this threshold point? If 90 percent
of all “reasonably well-informed persons” believe that
the proper interpretation of a statute is X, and 10
percent believe that it is Y, or if a judge is 90%
persuaded that the more reasonable interpretation is X,
and 10% persuaded that it is Y, is there ambiguity?
Obviously, the Chief Justice’s threshold for finding
ambiguity falls somewhere below 50%, but approxi-
mately where? Are there any other areas of the law in
which a judge, in the exercise of the judge’s fundamen-
tal obligation to interpret the law, must subordinate his
or her own judgment concerning the meaning of the law
to that of “reasonably well-informed [other] persons,”
or to any other group of persons?
Given that the Chief Justice’s threshold must neces-
sarily be less than 50%, why should that level ever be
deemed sufficient to allow a judge to dispense with the
language of a statute or contract as the dispositive
factor in determining its meaning? That is, if a judge is
51% or 61% or 71% persuaded that some interpretation
of the law is the better, or the “most reasonable,”
interpretation, what is the rationale for allowing a
judge to interpret the law in some different fashion?
Why would a judge ever adopt an interpretation that he
or she believes is the second-best, or the second most
reasonable, interpretation? If any interpretation of the
law, concerning which a judge is less than 100% certain
—say a 95% certainty—will ever permit that judge to
adopt such interpretation as the better, or the “most
reasonable” interpretation, what is the reason why a
51% or 61% or 71% interpretation should not prevail
over a 29% or 39% or 49% interpretation—much less
with respect to what the Chief Justice describes as
“more” interpretations that might be offered, see ante
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at 329, none of which may draw their legitimacy from
the words of a statute or contract? Why shouldn’t the
better, or the “most reasonable,” interpretation al-
ways prevail? Absent a perfectly clear statute or
contract, why should a judge not prefer the 51% or
61% or 71% interpretation? Why should a 29% or 39%
interpretation ever be placed on par with a 71% or
61% interpretation? Indeed, why should a definition
of ambiguity be adopted that allows a judge to deter-
mine that neither the 75% nor the 25% “most reason-
able” interpretations will be adopted? Ante at
328-329. Why isn’t it fair to conclude that the better,
or the “most reasonable,” interpretation—which may
be the 51% interpretation—is simply the correct
interpretation of the law?
The Chief Justice has little interest in parsing
§ 315(1), little interest in explaining why either of the
parties’ interpretations is “reasonable” or “unreason-
able,” and little interest in explaining why, in either
constitutional or logical terms, her understanding of
ambiguity makes sense, much less why it makes better
sense than what Mayor of Lansing and Klapp have set
forth. Instead, the Chief Justice is content to proceed,
without explanation, upon her deconstruction of the
law of Michigan.
E. NO PREVIOUSLY ESTABLISHED RULES
After her “analysis” of § 315(1)—one consuming
nearly a full paragraph and in which a sideways glance
at the sentence immediately preceding the one in dis-
pute is apparently seen as excessively rigorous—the
Chief Justice deems the statute “ambiguous,” i.e., al-
ternative interpretations could “reasonably apply.” She
then proceeds to select from among the available “in-
terpretative” tools and adopt those that purportedly
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support her result. Apparently, for every ambiguous
statute or contract reaching this Court, and there will
be many such statutes and contracts if the Chief Jus-
tice’s position ever prevails, she will re-embark upon
this “interpretative” process, picking and choosing at
her discretion from among some uncertain array of
tools lying “beyond the plain language of the statute [or
contract].” See Haynes, 477 Mich at 48-49 (M
ARKMAN
,J.,
concurring), for a partial listing of such tools. The
litigants will, of course, have no notice beforehand of
which tools are to be employed, for the justices them-
selves will not know this beforehand. Among the uni-
verse of potential tools extending “beyond the plain
language of the statute [or contract],” the Chief Justice
will, by some means never quite explained, determine
which of these are deemed to be relevant in interpreting
the statute or contract in that case, and after several
turns and twists of the mechanisms of her own internal
Enigma machine, some result will emerge. One result
will emerge if the “relevant” legislative history, for
example, is the Senate committee report, another result
will emerge if the “relevant” legislative history is the
House committee report. Still other results will emerge
if the “relevant” legislative history is comprised of the
statements of the Senate or House committee chair-
man, the floor statements of the Senate or House
majority leader, the committee testimony of witness A
in the Senate or that of witness B, C, or D in the House,
the staff analyses of the House or the Senate, or the
floor colloquy of two random members of the House or
two other random members of the Senate.
36
All in all,
36
See, e.g., Nat’l Pride, in which the Chief Justice in her dissent
proposed to give meaning to an allegedly “ambiguous” provision of our
constitution by assessing the language of campaign brochures by private
organizations, statements of the Michigan Civil Rights Commission, the
results of a private telephone survey, and a “wealth of extrinsic informa-
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this is a fine process, except that it is not a legal or
judicial process. Instead, it is a process in which judges
in the very guise of selecting the tools and factors to be
employed in “interpreting” the law are effectively its
formulators—in short, judges who are wielding the
legislative, not the judicial, power.
A critical strength of a judicial philosophy committed
to exercising only the constitution’s “judicial power” is
that reasonably clear rules of decision-making are es-
tablished before the fact. That is, a judge essentially
promises the parties that he or she will decide their
case, as with all others, by attempting to discern the
reasonable meaning of relevant statutes or contracts
and that this will be done by relying upon recognized
rules, and tools, of interpretation. By contrast, under
the Chief Justice’s approach to ambiguity, in which
there is essentially a limitless array of rules, and tools,
that may be employed for “defining” the law apart from
its language, there is no consistently applied interpre-
tative process with which the judge promises before-
hand to comply. He or she may promise to be “fair,” and
tion available.” Nat’l Pride, 481 Mich at 95-96 (K
ELLY
, J., dissenting). In
response, the majority rejected her “apparent proposition that any stray
bit of historical flotsam or jetsam can serve as guidance in giving meaning
to the constitution.” Id. at 84 n 25. See also Kelly, The fatal weakness in
the Michigan Supreme Court majority’s textualist approach to statutory
construction, 10 TM Cooley J Prac & Clinical L 287, 309 (2008), in which
she describes the dissenting justices’ “distrust” of legislative history,
without evidencing any understanding of the basis for this “distrust,”
and without recognizing differing attitudes toward different types of
legislative history. See, e.g., note 11 of this opinion. It should not go
unremarked that in this case, it is the dissent that cites legislative history,
albeit a uniquely persuasive and statutorily grounded type of legislative
history, as a relevant factor in interpreting § 315(1), while the Chief
Justice, the presumed advocate of legislative history, for no apparent
reason excludes this from her post-ambiguity toolbox. Why? Apparently
because she can choose to consider this factor if she wants to, and she can
choose not to consider this factor if she does not want to.
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he or she may seek to be fair, but there are no rules for
how this fairness is to be achieved. There is only the
promise that the judge will address each dispute on a
case-by-case basis, using whatever rules, and whichever
tools, he or she believes are required in that instance.
And the suspicion simply cannot be avoided that these
varying and indeterminate rules, and tools, may be
largely a function of the outcome preferred by the judge
and by his or her personal attitudes toward the parties
and their causes. Any interpretative rules will be iden-
tified only after the fact, and these “rules” may or may
not have been invoked in resolving yesterday’s dispute,
and may or may not be employed in resolving tomor-
row’s dispute. Any judge can concoct an after-the-fact
rationale for a decision; the judicial process, however, is
predicated upon before-the-fact rationales. An ad hoc
process is not a judicial process at all. In the place of
predetermined rules—otherwise understood as the rule
of law—the Chief Justice would substitute rules to be
determined later.
37
37
The arbitrariness of the Chief Justice’s approach can be glimpsed in
Haynes, 477 Mich at 45 (K
ELLY
, J., concurring), in which we are instructed
that whenever ambiguity arises, a judge may consider another jurisdiction’s
statute that is “substantially similar” to the Michigan statute before
him or her. “[Foreign] case law interpreting [that jurisdiction’s
statute] is instructive with regard to the correct interpretation of our
statute.” Id. Yet, shortly thereafter in DaimlerChrysler Corp, 482 Mich
at 241 (K
ELLY
, J., concurring in the result), we are instructed by the
same judge that, “[g]iven that these cases involve statutes that differ
from Michigan’s statutes, I find them of little assistance in determin-
ing the proper interpretation of the Michigan statute.” Fair enough;
distinctions may be legitimately made in these kinds of things. But
where there are 49 other state jurisdictions in the United States, and
thousands of other local jurisdictions, and millions of other private
contracts entered into in these jurisdictions, it would not seem terribly
difficult to identify somewhere and someplace a statute or contract
whose interpretation can be invoked in support of an interpretation
sought to be obtained in this state. Nor is there any apparent reason
why in an appropriate case one of the Chief Justice’s amorphous
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F. CHIEF JUSTICE’S TOOLS IN THIS CASE
What among the universe of available post-ambiguity
tools does the Chief Justice choose to consider in
reaching her decision here? The Chief Justice states
that “caselaw,” among other tools, supports her inter-
pretation of § 315(1). In evaluating this factor, the Chief
Justice mainly invokes broad “public policy” consider-
ations. For example, the Chief Justice, citing Harvlie v
Jack Post Corp, 2006 Mich ACO 69, emphasizes that the
“WCAC has explicitly recognized the importance of
holding employers and their insurance carriers respon-
sible for a proration of attorney fees pursuant to
§ 315(1).” Ante at 332. Yet, in Harvlie, this “impor-
tance” was drawn from the following: “The attorney fee
provision of Section 315 was designed to promote the
assistance of counsel in medical dispute cases where
there are minimal or no wage loss benefits from which
to obtain an attorney fee.” 2006 ACO 69, at 3 (emphasis
added). In essence, Harvlie found that interpreting
§ 315(1)’s final sentence to require an employer to pay
attorney fees made it more likely that an attorney
would take a case in which the only recovery available
was based on medical costs. Thus, the “importance” of
enforcing the majority interpretation is based on this
putative “design” even though the reasoning in Harvlie
in no way bears this out. The majority interpretation
does not obviously “promote the assistance of counsel”
because the employee’s attorney recovers the same
amount—the contingency fee calculated on the recovered
medical expenses—regardless of who pays his fees. See
notes 4 and 5 of this opinion. Thus, the supposed “design”
set forth in Harvlie is a false one. Nonetheless, the
post-ambiguity tools could not consist of a judicial decision from France,
New Guinea, or Azerbaijan. See, generally, Roper v Simmons, 543 US
551; 125 S Ct 1183; 161 L Ed 2d 1 (2005).
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Chief Justice insists that this reasoning somehow sus-
tains her interpretation and supplies better guidance
than the actual words of § 315(1).
38
The Chief Justice next relies on Boyce v Grand
Rapids Asphalt Paving Co, 117 Mich App 546, 552; 324
NW2d 28 (1982), in which, after resolving a workers’
compensation attorney fees dispute on the grounds that
an administrative rule did not allow an employee to
recover fees from a medical provider or employer,
39
the
Court proceeded to opine that such a result did not
serve “justice.” However, whatever an individual
judge’s personal sense of “justice,” it is the responsibil-
ity of that judge to do “justice under law.” Judges have
no proper authority to countermand the decisions of the
lawmaker by substituting a personal sense of “justice”
for the justice of the law. I agree that there can be
reasonable disagreement as to whether the position
asserted by plaintiff or by defendants in this case is
more “just.” However, that question has never been
thought to be dispositive, or even relevant, in giving
meaning to statutes and contracts, and it is not made
more dispositive or relevant because it was addressed
by the lower court. Many persons, including judges, may
have a strong personal sense of “justice”—how public
resources should be apportioned, how rights and respon-
38
The Chief Justice also cites Harvlie for her “public policy” argument
that if employers are not held liable for employees’ attorney fees,
employers will “have an incentive to deny medical benefits.” Ante at 332.
Yet, she never examines the consequences of the corollary “public policy”
wherein employers would be penalized by attorney fees even if they have
a valid dispute that the employee did not “receive[] a personal injury
arising out of and in the course of employment.” MCL 418.315(1).
39
The Court of Appeals cases that followed also adhered to this rule.
Duran v Sollitt Constr Co, 135 Mich App 610; 354 NW2d 277 (1984);
Zeeland Community Hosp v Vander Wal, 134 Mich App 815; 351 NW2d
853 (1984); Nezdropa v Wayne Co, 152 Mich App 451; 394 NW2d 440
(1986).
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sibilities should be understood, how the limits of gov-
ernment should be defined—but it is “justice under
law” that is the tool of the trade of the judge and that
defines the judicial power. Moreover, even if ascertain-
ing what constituted abstract “justice” in the instant
case did define this Court’s mission, the Chief Justice
never even purports to explain why her conception of
“justice”—requiring employers to pay employee’s work-
ers’ compensation attorney fees—is somehow superior
to alternative conceptions of “justice,” including that of
the Legislature, which has chosen to rely upon a differ-
ent rule than the Chief Justice.
40
The Chief Justice also relies on the WDCA’s “reme-
dial...nature” to support her interpretation. Ante at
332. The WDCA is indeed remedial, because it provides
a remedy for employees injured on the job. Yet, the
Chief Justice fails to explain why this purpose, as
important as it obviously is, should be elevated above
every other purpose of the Legislature. The WDCA is
the Legislature’s attempt to fulfill at least two pur-
40
“The people have not forfeited lawmaking authority to a judicial
aristocracy that may simply rewrite laws with which they disagree.”
Karaczewski, 478 Mich at 43. The Chief Justice’s reliance on her own
personal brand of “justice” also suffers from the lack of virtue of
“overturn[ing] compromises made in the legislative process, second-
guess[ing] judgments of the lawmaker, and render[ing] the law
increasingly arbitrary and unpredictable.” Rowland, 477 Mich at 226
(M
ARKMAN
, J., concurring). It is also strange that, despite relying upon
these post-ambiguity tools of “justice” and “public policy,” neither the
Chief Justice nor any other justice even made the slightest effort
during oral argument to inquire into anything relevant regarding the
“justice” or “public policy” of alternative interpretations of § 315(1),
such as the economic impact of competing interpretations upon the
health and competitiveness of Michigan’s businesses, or the impact of
competing interpretations upon workers’ compensation insurance
premiums. One might have thought such inquiries to be a useful
precondition to judicial decisions predicated upon “justice” and “pub-
lic policy.”
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poses: “to ‘provide...notonly for employees a remedy
which is both expeditious and independent of proof of
fault, but also for employers a liability which is limited
and determinate.’ ” Simkins v Gen Motors Corp (After
Remand), 453 Mich 703, 710; 556 NW2d 839 (1996)
(citations omitted).
41
By arbitrarily establishing priori-
ties among the several purposes of the WDCA, the Chief
Justice undermines the real-world negotiations and
compromises that were engaged in by the Legislature.
In the place of a statute enacted by a majority of the 148
members of the Legislature, the majority interpretation
substitutes a statute approved only by four judges
acting well beyond their proper authority.
The Chief Justice then asserts that she is empowered
to “construe the act’s terms liberally,” ante at 332—
rather than merely “reasonably.” As a result of this
process, one essentially indistinguishable from a judge
asserting his or her right to place a thumb on the scales
of justice, the Chief Justice proclaims that plaintiff is
entitled under the WDCA to the greatest possible
amount of recovery. Ante at 332. Is there anything more
to the Chief Justice’s “liberal” construction than that
plaintiff prevails on everything? Is this all that is
implied by a “liberal” construction? At what point does
the Court decide that its “liberal” construction has fully
accomplished the goals of the WDCA? When the em-
ployee receives all that he asks for? When an employer
can no longer afford to maintain its insurance, or
cannot afford to maintain an employee? Does a “liberal”
construction militate in favor even of a recovery of
benefits that is not contemplated by the actual language
41
Most workers’ compensation statutes “represent[] a compromise
between the competing interests of disabled laborers and their employ-
ers.” Potomac Electric Power Co v Office of Workers’ Compensation
Programs Director, 449 US 268, 282; 101 S Ct 509; 66 L Ed 2d 446 (1980).
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of the WDCA? Having declined from the outset to
attempt any “reasonable” interpretation of § 315(1),
the Chief Justice is far more enthusiastic about pro-
claiming “ambiguity” and immediately proceeding to a
“liberal” interpretation. That is, in the place of an
interpretation that is grounded in some meaningful
way upon the law itself, the Chief Justice much prefers
an “interpretation” that is not really an interpretation
at all. She engages in what is merely a political impulse,
rather than any serious construction of the law as
might once have been expected from a justice of the
Supreme Court of this state. Rather than working to
achieve the “best” possible or “most reasonable” inter-
pretation of the law, the Chief Justice, apparently
fearing that little good would come from such an
approach, instead exercises a power that does not
belong to judges under the pretext that she is actually
engaging in some genuine interpretation of the law,
albeit a “liberal” interpretation. While a genuine inter-
pretation of the law is designed to achieve as perfect an
understanding as possible of what the lawmaker has
intended, a “liberal” interpretation appears here to be
little more than a means to achieving a particular
result.
In short, the Chief Justice invokes her own under-
standing of ambiguity for the purpose of providing some
justification for her preferred course of “going beyond
the plain language of the statute,” and thereby avoiding
the difficult process of giving fair meaning to a statute,
the fair meaning of which may not be to her liking. “No
judge should manufacture ambiguity.” Paige v Ster-
ling Hts, 476 Mich 495, 542; 720 NW2d 219 (2006)
(C
AVANAGH
, J., concurring in part) (emphasis omit-
ted). Yet, there is no longer any need to “manufacture
ambiguity” in light of the extraordinarily low thresh-
old by which it can be found under the Chief Justice’s
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definition. In virtually every instance in which ambigu-
ity is invoked, the Chief Justice would circumvent the
actual language of a statute or contract in favor of her
own notion of how that statute or contract should be
configured.
G. STARE DECISIS
After stating that “stare decisis does not apply” to
the Mayor of Lansing standard for determining ambi-
guity, ante at 314 n 36, the Chief Justice nonetheless
devotes almost a third of her opinion to rejecting the
stare decisis test in Robinson v Detroit, 462 Mich 439;
613 NW2d 307 (2000), constructing a new test, and
then “apply[ing]” it to Mayor of Lansing. It should be
emphasized that only one other justice is in agree-
ment.
42
This leads to several reflections concerning the
Chief Justice and precedent:
(1) The Chief Justice has repeatedly criticized other
justices for “unnecessarily” overruling precedent.
43
What could be less “necessary” than to overturn a case
she characterizes as nonbinding precedent? The Chief
Justice has also previously stated that a departure from
42
Although the Chief Justice applies her newly formulated “compelling
justification” standard to conclude that Mayor of Lansing should be
overruled, she neglects even to apply her new stare decisis standard to
determine whether Robinson itself should be overruled. In this regard,
seealsonote47ofthisopinion.
43
See, for example, People v Smith, 478 Mich 292, 331; 733 NW2d 351
(2007) (K
ELLY
, J., dissenting); Rowland, 477 Mich at 248 (K
ELLY
,J.,
concurring in part and dissenting in part); Joliet v Pitoniak, 475 Mich 30,
46; 715 NW2d 60 (2006) (K
ELLY
, J., dissenting); Rory v Continental Ins
Co, 473 Mich 457, 492; 703 NW2d 23 (2005) (K
ELLY
, J., dissenting); People
v Hickman, 470 Mich 602, 618; 684 NW2d 267 (2004) (K
ELLY
,J.,
dissenting); People v Kazmierczak, 461 Mich 411, 427; 605 NW2d 667
(2000); (K
ELLY
, J., concurring in part and dissenting in part); Mudel v
Great Atlantic & Pacific Tea Co, 462 Mich 691, 749; 614 NW2d 607 (2000)
(K
ELLY
, J., concurring in part and dissenting in part).
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precedent must be supported by some “special justifi-
cation.”
44
What “special justification” could exist to
overrule a case that she does not consider formally
binding precedent?
45
(2) Given that in this case the Chief Justice would
expressly overrule, not one, but two of this Court’s prior
decisions,
one is naturally tempted to re-inquire, see Rowland v
Washtenaw Co Rd Comm, 477 Mich 197, 223-228; 731
NW2d 41 (2007) (M
ARKMAN
, J., concurring), whether the
ongoing dispute between the [former] majority and Justice
K
ELLY
over overrulings of precedent truly concerns atti-
tudes toward stare decisis or merely attitudes toward
particular previous decisions of this Court. [People v Smith,
478 Mich 292, 322-323 n 17; 733 NW2d 351 (2007).]
“A justice’s perspective on stare decisis is not evidenced
by her willingness to maintain precedents with which
she agrees, but by her willingness to maintain prece-
dents with which she disagrees.” Rowland, 477 Mich at
224-225n3(M
ARKMAN
, J., concurring). Now that the
Chief Justice is positioned to overrule decisions with
which she disagrees, her actions increasingly demon-
strate that her former claims of fealty toward stare
decisis were considerably overstated. Despite all her
rhetoric concerning the importance of stare decisis for
the exercise of the judicial power, see, e.g., her hollow
claim that she possessed a “differing [and elevated]
44
See, for example, People v Gardner, 482 Mich 41, 85; 753 NW2d 78
(2008) (K
ELLY
, J., dissenting); Rowland, 477 Mich at 254 (K
ELLY
,J.,
concurring in part and dissenting in part); People v Davis, 472 Mich 156,
189; 695 NW2d 45 (2005) (K
ELLY
, J., dissenting); Hickman, 470 Mich at
616 (K
ELLY
, J., dissenting); Robinson, 462 Mich at 476 (K
ELLY
,J.,
concurring in part and dissenting in part).
45
Contrary to the Chief Justice’s assertion, ante at 326 n 63, nowhere
in this opinion is it stated that a standard for ambiguity is or is not
“entitled to stare decisis” consideration.
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esteem for stare decisis” than another justice, People v
Gardner, 482 Mich 41, 88 n 31; 753 NW2d 78 (2008),
such rhetoric was in reality little more than a means of
communicating her opposition to overruling particular
past decisions with which she agreed.
46
(3) As I also asserted in Rowland, 477 Mich at 226:
[N]o meaningful discussion of a court’s attitude toward
precedent can be based solely on an arithmetical analysis in
which raw numbers of overrulings are simply counted.
Such an analysis obscures that not all precedents are built
alike, that some are better reasoned than others, that some
are grounded in the exercise of discretionary judgments
and others in the interpretation of plain language, that
some are thorough in their analyses and others superficial.
The chart attached to my concurring opinion in Row-
land demonstrates that the former majority’s overrul-
ings of precedent overwhelmingly occurred in cases
involving what the then-majority justices viewed as the
“misinterpretation of straightforward words and
phrases in statutes and contracts, in which words that
were not there were read into the law or words that
were there were read out of the law.” Id. at 226,
228-247. In contrast, the new majority’s overrulings of
precedent has moved toward just the opposite result,
replacing decisions that sought to give reasonable
46
The Chief Justice also stated in Gardner, 482 Mich at 87, that “stare
decisis requires that we give those [earlier] decisions thoughtful and
thorough consideration before tossing them aside.” See also Rowland,
477 Mich at 256 (“The law has not changed. Only the individuals wearing
the robes have changed. It is amazing how often the members of this
majority have declared themselves more capable of understanding the
law and reaching the “right” result than any justice who sat before.”)
(K
ELLY
, J., concurring in part and dissenting in part); Davis, 472 Mich at
190 (overruling multiple cases “destabilizes our state’s jurisprudence. It
suggests to the public that the law is at the whim of whoever is sitting on
the Supreme Court bench. Surely, it erodes the public’s confidence in our
judicial system.”).
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meaning to the words of the law with decisions in which
“words that were not there were read into the law or
words that were there were read out of the law.” That is,
when the previous majority overruled a precedent, it
was to ensure that the decisions of this Court more
closely reflected the judgments of the people’s elected
legislative representatives and it was to more closely
align case law and statutory law. By contrast, when the
new majority has overruled, or at least ignored, a
precedent, it has been to create a greater disparity
between that case law and the statutory law.
(4) Indeed, since Chief Justice K
ELLY
became a part of
the new majority, this majority has dealt with prece-
dents it did not like in an especially inappropriate
manner—by simply ignoring them. In the interest of
clearing the law of this state of multiple and inconsis-
tent precedents on the same matters of law, the former
majority forthrightly and explicitly overruled prece-
dents and never sought to obscure this process or to
misleadingly minimize the number of overturned pre-
cedents, by either ignoring disfavored precedents or by
dubiously “distinguishing” prior case law. Doubtlessly,
because it is cognizant of the gap between its past
rhetoric extolling the importance of stare decisis and its
present actions disregarding stare decisis, the new
majority has made an increasingly regular practice of
simply ignoring inconvenient precedents.
47
As a result
47
See, e.g., Vanslembrouck v Halperin, 483 Mich 965 (2009), an order
entered in which the new majority ignored Vega v Lakeland Hosps, 479
Mich 243; 736 NW2d 561 (2007); Hardacre v Saginaw Vascular Services,
483 Mich 918 (2009), an order in which it failed to follow Boodt v Borgess
Med Ctr, 481 Mich 558; 751 NW2d 44 (2008); Sazima v Shepherd Bar &
Restaurant, 483 Mich 924 (2009), an order in which it failed to follow
Chrysler v Blue Arrow Transport Lines, 295 Mich 606; 295 NW 331
(1940), and Camburn v Northwest School Dist (After Remand), 459 Mich
471; 592 NW2d 46 (1999); Juarez v Holbrook, 483 Mich 970 (2009), an
order in which it failed to follow Smith v Khouri, 481 Mich 519; 751
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for years to come, the clear rule of law will be stunted in
this state as legal practitioners and judges will be able
to pick and choose between competing and inconsistent
precedents.
(5) The Chief Justice concludes that Robinson’s stan-
dard for overruling binding precedent is “insufficiently
respectful of precedent” because “not once has the Court
cited it as a basis for upholding a prior decision.” Ante at
315-316 (emphasis omitted). The Chief Justice, however,
fails to illuminate the reader as to the number of occasions
on which she has concluded that binding precedent was
wrongly decided and yet joined an opinion maintaining
that precedent. Perhaps, this is because the answer is
“never.” Not once has the Chief Justice joined an
NW2d 472 (2008); Beasley v Michigan, 483 Mich 1025 (2009), an order in
which it failed to follow Rowland; Scott v State Farm Mut Automobile Ins
Co, 483 Mich 1032 (2009), an order in which it failed to enforce Thornton
v Allstate Ins Co, 425 Mich 643; 391 NW2d 320 (1986), and Putkamer v
Transamerica Ins Corp of America, 454 Mich 626; 563 NW2d 683 (1997);
Chambers v Wayne Co Airport Auth, 483 Mich 1081 (2009), an order in
which it again failed to abide by Rowland; and Bush v Shabahang, 484
Mich 156; 772 NW2d 272 (2009), in which it ignored Roberts v Mecosta Co
Gen Hosp (After Remand), 470 Mich 679; 684 NW2d 711 (2004) (Roberts
II).
In addition to ignoring precedents altogether, see Potter v McLeary,
484 Mich 397; 774 NW2d 1 (2009), in which the new majority avoided
overruling Roberts II, for an illustration of a seriously dubious “distin-
guishing” of precedent. Such treatment of inconvenient precedents,
reflected also in the Chief Justice’s “comprehensive response” to these
charges, ante at 326 n 63, which cites Potter, 484 Mich at 426-429 (K
ELLY
,
C.J., concurring), may well reduce the number of occasions on which
precedents have been explicitly overruled, but they do nothing to uphold
the values of stare decisis, which would seem to be the whole purpose of
the exercise, while allowing multiple and inconsistent precedents to
define the law of this state. In the end, there is no shortcut to resolving
whether the new majority or the dissenting justices are correct in their
characterizations of what the majority is doing. We can only identify what
we believe to be the questionable decisions of the majority, identify the
relevant precedents, and invite the reader to reach his or her own
conclusions.
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opinion finding a “compelling justification,” or any
other basis, for upholding a prior decision that she
believed was wrongly decided.
48
More to the point,
however, in disparaging the impact of Robinson, the
Chief Justice disregards that cases in which Robinson
would have been viewed as militating against an over-
ruling of precedent would have been precisely those
cases in which there never would have been an opinion
issuing from this Court in the first place.
49
(6) In response to my concurring opinion in Rowland,
then-Justice K
ELLY
stated:
Justice M
ARKMAN
challenges me to develop my “own
standards” concerning when I would overturn prece-
dent. But I have no need to create my own standards
when well-reasoned standards have been established
in the laws of this country for over 150 years. As noted in
McDowell [v Oyer], when precedents are “free
48
The Chief Justice responds that she has not upheld what she viewed
as a wrongly decided precedent under the “compelling justification”
standard because that “has never been the standard in Michigan during
[her] years as a justice.” Ante at 326-327 n 63. However, the point is that,
even under her own similar “special justification” standard, see, e.g.,
Gardner, 482 Mich at 85 (K
ELLY
, J., dissenting), or under any other
standard, the Chief Justice has never joined an opinion to uphold what
she viewed as a wrongly decided precedent. Her application of her
“special justification” standard also belies her claim that she “followed
Robinson in subsequent cases.” Ante at 327 n 63.
49
The Chief Justice also neglects to mention that Robinson, 462 Mich
at 466 n 26, expressly identified two illustrative cases it likely would not
have overruled even if it believed they had been wrongly decided: Massey
v Secretary of State, 457 Mich 410; 579 NW2d 862 (1998), the case
upholding term limits, and Advisory Opinion re Constitutionality of 1972
PA 294, 389 Mich 441; 208 NW2d 469 (1973), this Court’s initial advisory
opinion with regard to automobile no-fault insurance. See also People v
Lively, 470 Mich 248, 259; 680 NW2d 878 (2004) (M
ARKMAN
, J., concur-
ring) (finding it unnecessary to determine whether longstanding prece-
dent should be overruled under Robinson standards); People v Starks,
473 Mich 227, 237; 701 NW2d 136 (2005) (M
ARKMAN
, J., joining concur-
ring opinion stating it was unnecessary to overrule a prior case).
2009] P
ETERSEN V
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AGNA
C
ORPORATION
393
D
ISSENTING
O
PINION BY
M
ARKMAN
,J.
from absurdity, not mischievous in practice, and consistent
with one another,” they should be retained. McDowell,21
Pa [417, 423 (1853)]. I would not lightly adopt new rules to
guide my judicial philosophy when traditional tools used by
courts throughout their history continue to serve well.
[Rowland,477Michat255n8(K
ELLY
, J., concurring in
part and dissenting in part).]
However, the Chief Justice now apparently finds it
necessary to depart from the 150-year-old standard that
she has previously hailed to fashion her own new
“compelling justification” standard, with its seven
evaluative criteria, and we are left to ponder why she no
longer views the “free from absurdity, not mischievous
in practice, and consistent with another” standard as a
sufficient test.
50
Moreover, it is perplexing why the Chief Justice feels
that it is necessary to overrule Robinson and replace it
with her new test given the similarity of these stan-
dards.
51
Why, to use her own standards, is this “neces-
50
It also should not be lost on the reader that these criteria are nothing
more than a hodgepodge thrown together without any prior case law in
support. Given her criticism that the test for ambiguity set forth in
Mayor of Lansing was made up out of “thin air,” ante at 311, one might
think the Chief Justice would be especially careful to identify at least one
or two courts that have utilized her own new criteria.
51
Under the Chief Justice’s standard, stare decisis analysis “begin[s]
with the presumption that upholding the precedent involved is the
preferred course of action.” Ante at 317. Under Robinson, “[s]tare decisis
is generally ‘the preferred course.’ ” Robinson, 462 Mich at 463 (citation
omitted). Under the Chief Justice’s standard, we are to consider whether
the precedent “has proven to be intolerable because it defies practical
workability[.]” Ante at 320. Under Robinson, we considered “whether the
precedent “defies ‘practical workability.’ ” Robinson, 462 Mich at 464.
Under the Chief Justice’s standard, a court is to consider “whether
reliance on the [precedent] is such that overruling it would cause a
special hardship and inequity[.]” Ante at 320. Under Robinson,we
considered “whether reliance interests would work an undue hardship.”
Robinson, 462 Mich at 464. Under the Chief Justice’s standard, we are to
consider “whether related principles of law have so far developed since
394 484 M
ICH
300 [July
D
ISSENTING
O
PINION BY
M
ARKMAN
,J.
sary” and what is the “compelling justification” for doing
this? Indeed, given the Chief Justice’s statements that the
“application [of Robinson] has proven superficial and
cursory,” ante at 315 (emphasis added), and that Robin-
son, as previously applied, is “insufficiently respectful of
the rule was pronounced that no more than a remnant of the rule has
survived[.]” Ante at 320. Under Robinson, we considered “whether
changes in the law . . . no longer justify the questioned decision.” Robin-
son, 462 Mich at 464. Under the Chief Justice’s standard, we are to
consider “whether facts and circumstances have so changed, or come to
be seen so differently, as to have robbed the old rule of significant
application or justification[.]” Ante at 320. Under Robinson,weconsid-
ered “whether changes in the...factsnolonger justify the questioned
decision.” Robinson, 462 Mich at 464. Under the Chief Justice’s standard,
we are to consider “whether other jurisdictions have decided similar
issues in a different manner[.]” Ante at 320. Under Robinson,we
considered both the “practical workability” of the questioned decision
and “changes in the law,” under which decisions from other jurisdictions
could be used to address each factor. Robinson, 462 Mich at 464. Under
the Chief Justice’s standard, we are to consider “whether upholding the
rule is likely to result in serious detriment prejudicial to public inter-
ests[.]” Ante at 320. Under Robinson, we considered both the “practical
workability” of the questioned decision and “changes in the law or facts
that no longer justify the questioned decision,” Robinson, 462 Mich at
464, and each of these factors gave consideration, in the Chief Justice’s
language, to “whether upholding the rule is likely to result in serious
detriment prejudicial to public interests[.]” Ante at 320.
The final factor in the Chief Justice’s new test—“whether the prior
decision was an abrupt and largely unexplained departure from prece-
dent,” ante at 320—ignores two aspects of this Court’s former approach
to stare decisis. First, by establishing a “lower level of deference” for
cases that themselves have overruled precedent, the Chief Justice disre-
gards that the particular precedents she so disfavors themselves often
overruled decisions that “depart[ed] from precedent.” Ante at 317-318.
See the chart in Rowland, 477 Mich at 228-247 (M
ARKMAN
, J., concurring),
for a list of such decisions. Does the Chief Justice take this into account
in her calculus? Second, I can only invite those interested in the workings
of their judiciary to read the decisions of this Court in which the former
majority overruled precedent, see id. at 223, and compare these with the
decisions in which the new majority has now overruled or ignored
precedent, see note 47 of this opinion, and assess which of these have
been most “unexplained” or “abrupt.”
2009] P
ETERSEN V
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AGNA
C
ORPORATION
395
D
ISSENTING
O
PINION BY
M
ARKMAN
,J.
precedent,” ante at 316, one has to wonder whether her
real concern is not with the Robinson test itself , but
merely with what she views as the misapplication of that
test.
V. CONCLUSION
I would reverse the Court of Appeals because the
final sentence of MCL 418.315(1) does not allow a
magistrate to assess an employee’s attorney fees
against the employer. Rather, that sentence only allows
a magistrate to divide attorney fees among medical
providers when the magistrate has ordered direct pay-
ment for medical expenses from the employer to those
providers.
C
ORRIGAN
, J., concurred with M
ARKMAN
,J.
396 484 M
ICH
300 [July
D
ISSENTING
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PINION BY
M
ARKMAN
,J.
POTTER v McLEARY
Docket No. 136336. Argued March 4, 2009 (Calendar No. 7). Decided July
31, 2009.
Brian Potter brought a medical malpractice action in the Washtenaw
Circuit Court against Richard C. McLeary, M.D., and others. The
plaintiff sent a notice of intent to sue Huron Valley Radiology, P.C.,
and Kristyn H. Murry, M.D., eight days before the statutory period
of limitations expired, and sent a separate notice of intent to St.
Joseph Mercy Hospital Ann Arbor, Emergency Physicians Medical
Group, P.C., and Robert Domeier, D.O., 25 days before the period of
limitations expired. However, the affidavits of merit that the
plaintiff filed with his complaint did not contain the statutorily
required statement on proximate cause, and no conforming affi-
davits were submitted before the limitations period expired. The
court, Donald E. Shelton, J., denied the defendants’ motions for
summary disposition, and the defendants appealed. The Court of
Appeals consolidated the appeals. The Court of Appeals, W
ILDER
,
P.J., and Z
AHRA
,J.(D
AVIS
, J., dissenting), reversed, concluding that
the plaintiff’s complaint should have been dismissed with preju-
dice because the affidavits of merit attached to the complaint did
not conform to the requirements of MCL 600.2912d. 274 Mich App
222 (2007). The Supreme Court, in lieu of granting leave to appeal,
reversed the portion of the Court of Appeals judgment that stated
that the complaint should be dismissed with prejudice, specified
that the dismissal should be without prejudice, and remanded the
matter to the Court of Appeals for consideration of the remaining
issues. 480 Mich 915 (2007). On remand, the same Court of
Appeals panel held unanimously that an affidavit of merit is
presumptively valid, and therefore tolls the running of the limita-
tions period when filed with the complaint, until it is successfully
challenged in a judicial proceeding. The proper remedy for a
successful challenge is dismissal without prejudice, affording the
plaintiff whatever time remains in the period of limitations to file
a complaint with conforming affidavits of merit. Specifically, the
Court of Appeals held that the notice of intent sent to Dr. Murry
was sufficient to put her on notice of the nature of the claim and
properly set forth the manner in which she allegedly breached the
standard of care and what actions she should have taken to avoid
2009] P
OTTER V
M
C
L
EARY
397
the breach. The Court further held that the trial court properly
denied summary disposition on the basis of the notices of intent to
all the defendants except Huron Valley Radiology, with respect to
which summary disposition should have been granted without
prejudice to allow the plaintiff to cure the notice of intent by
stating the specific standard of care applicable to Huron Valley
Radiology. 278 Mich App 279 (2008). The Supreme Court granted
the plaintiff’s application for leave to appeal, limited to the issue
whether Huron Valley Radiology is a health facility or agency to
which a plaintiff must provide notice under MCL 600.2912b(1).
482 Mich 1004 (2008). The defendants’ application for leave to
appeal was held in abeyance pending the decision on the first
application. 756 NW2d 85 (2008). After oral argument, the Su-
preme Court directed the parties to submit supplemental briefs
addressing whether, if notice to Huron Valley Radiology was not
required, the applicable statute of limitations was nonetheless
subject to statutory tolling under former MCL 600.5856(d). 483
Mich 922 (2009).
In an opinion by Justice H
ATHAWAY
, joined by Chief Justice K
ELLY
and Justices C
AVANAGH
and W
EAVER
, the Supreme Court held:
A plaintiff must provide a timely notice of intent to a profes-
sional corporation before commencing a medical malpractice ac-
tion when the claims against the professional corporation are
based on vicarious liability for the actions of a licensed health care
provider who is rendering professional services. The notice of
intent filed in this case was fully compliant with the plain language
of MCL 600.2912b(4), which does not require that the legal
relationships between the parties be identified. If the only claim
asserted against a professional corporation is based on vicarious
liability, MCL 600.2912b does not require a plaintiff to set forth
the legal doctrine of vicarious liability in the notice of intent. In
light of MCL 450.225, a professional corporation can only render
professional services through its licensed health care provider.
Where the notice of intent names both the professional corpora-
tion and the provider, the notice of intent is fully compliant if it
sets forth all the factual and medical information necessary to
inform the professional corporation of the nature of the claim
being asserted against the physician-provider. Because the plain-
tiff’s notice of intent meets these requirements, dismissal is not
warranted.
1. Professional corporations are created by the Professional
Service Corporations Act, MCL 450.221 et seq., which provides
that a professional corporation, while a separate legal entity, does
not render professional services on its own; it can only render
professional services through its employees or agents who are
398 484 M
ICH
397 [July
licensed or legally authorized to render those services. Accordingly,
a professional corporation rendering professional services involv-
ing health care and the health care provider are treated as the
same entity.
2. To determine whether a claim against a professional corpo-
ration sounds in medical malpractice rather than ordinary negli-
gence, a two-pronged test must be met: first, the claim must occur
in the course of a professional relationship and, second, the claim
must pose questions of medical judgment outside the realm of
common knowledge and experience. Further, only those health
care providers and facilities designated within MCL 600.5838a
may be sued for malpractice. The amendment of MCL 600.5838a
to include professional corporations evinces a clear legislative
intent to include professional corporations among the entities
against which a medical malpractice action may be asserted.
3. A notice of intent to bring a medical malpractice claim
alleging only vicarious liability is not statutorily required to
specifically set forth the legal theory of vicarious liability or to
include a statement of the defendant’s employment relationship
with the health professional whose actions gave rise to the suit.
Because a professional corporation can only render professional
health care services through its licensed health care providers, the
parties are effectively the same actor for the purpose of vicarious
liability claims; therefore, there is no need for a claimant to
include the same information in the notice of intent for both
parties.
Chief Justice K
ELLY
, concurring, wrote separately to address
Justice M
ARKMAN
’s comments regarding the majority’s lack of
respect for the doctrine of stare decisis and to explain why the
accusation that the Court has been ignoring precedent is incorrect.
Order holding application for leave to appeal in abeyance
vacated, application for leave to appeal denied, Court of Appeals
judgment reversed, and case remanded for further proceedings.
Justice C
ORRIGAN
, concurring in part and dissenting in part,
agreed with the majority and the Court of Appeals that the
plaintiff’s notice of intent was sufficient as to Murry. She dissented
from the majority’s holding that Huron Valley Radiology was
entitled to a notice of intent. She concurred with and joined part I
of Justice Y
OUNG
’s opinion, agreeing that Huron Valley Radiology
is neither a health professional nor a health facility entitled to
notice under MCL 600.2912b. Because Huron Valley Radiology
was not entitled to a notice of intent, the plaintiff was not entitled
to tolling. She shared the concerns stated in part III(C) of Justice
M
ARKMAN
’s opinion regarding Justice Y
OUNG
’s conclusion
2009] P
OTTER V
M
C
L
EARY
399
that if a notice of intent is sufficient as to one defendant, the
statute of limitations is tolled as to all defendants. She agreed with
Justice M
ARKMAN
’s result that the plaintiff’s complaint was un-
timely filed and accordingly would hold that the action against
Huron Valley Radiology was barred by the statute of limitations.
She also concurred with part III(D) of Justice M
ARKMAN
’s opinion
concerning whether a plaintiff can retroactively amend the notice
of intent. She dissented from the majority’s holding that the
plaintiff’s notice of intent was sufficient as to Huron Valley
Radiology and would not reach the sufficiency of the notice issue at
all for the reasons set forth in part III(E) of Justice M
ARKMAN
’s
partial concurrence and dissent, with which she fully concurred
and joined.
Justice Y
OUNG
, concurring in part and dissenting in part,
concurred only in the holding of the majority opinion that Huron
Valley Radiology is not entitled to dismissal. He dissented from the
majority’s holding that a plaintiff is required to serve a profes-
sional corporation not enumerated in MCL 333.20106(1) with a
notice of intent to commence a medical malpractice action under
MCL 600.2912b, because such an entity is neither a “health
professional” nor a “health facility” under MCL 600.2912b. He
would additionally hold that the statute of limitations on the claim
against Huron Valley Radiology was tolled pursuant to MCL
600.5856(d) because the plaintiff provided a notice of intent in
compliance with the MCL 600.2912b for a claim that would have
been barred during the applicable notice period. He dissented from
the majority’s analysis regarding whether the plaintiff’s notice of
intent was deficient because MCL 600.2912b requires a plaintiff to
provide a statement of the factual basis for the claim, which, if the
claim is one alleging vicarious liability, must include a statement
regarding the principal-agent relationship on which the claim is
based. Because the plaintiff did not include a statement of the
relationship of Huron Valley Radiology to the other individual
defendants, the plaintiff’s notice of intent was defective.
Justice M
ARKMAN
, concurring in part and dissenting in part,
agreed with the majority that Huron Valley Radiology was
entitled to a notice of intent, and would affirm the portion of the
Court of Appeals opinion that held that the plaintiff’s notice of
intent was sufficient with regard to Murry. He would also affirm
the portion of the Court of Appeals that held that the plaintiff’s
notice was insufficient with regard to Huron Valley Radiology
because the notice did not contain a statement of the applicable
standard of practice or care alleged by the claimant with regard
to that entity, including an indication whether the plaintiff was
400 484 M
ICH
397 [July
alleging direct or vicarious liability, as MCL 600.2912b(4)(b) and
Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679
(2004), require. In accordance with MCL 600.5856(d) and Roberts
v Mecosta Co Gen Hosp, 466 Mich 57 (2002), he would reverse the
portion of the Court of Appeals opinion that held that the defective
notice of intent tolled the statute of limitations and would dismiss
the action against Huron Valley Radiology with prejudice. The
majority reached its conclusion that no dismissal is necessary in
this case by addressing issues not properly before it, violating this
Court’s own internal rules, relying on dubious distinctions to avoid
precedent, and completely rewriting the relevant statutory provi-
sions.
1. A
CTIONS —
M
EDICAL
M
ALPRACTICE —
N
OTICE OF
I
NTENT TO
F
ILE A
C
LAIM —
P
ROFESSIONAL
C
ORPORATIONS
.
A professional corporation rendering professional health care ser-
vices and the health care provider are treated as the same entity
for the purpose of providing a notice of intent to bring a claim for
medical malpractice (MCL 450.221 et seq., 600.2912b).
2. A
CTIONS —
M
EDICAL
M
ALPRACTICE —
P
ROFESSIONAL
C
ORPORATIONS
.
A claim against a professional corporation sounds in medical mal-
practice rather than ordinary negligence if the claim occurs when
the professional corporation is rendering services through a li-
censed or authorized officer, employee, or agent as set forth in
MCL 450.225, and if the claim poses questions of medical judg-
ment outside the realm of common knowledge and experience.
3. A
CTIONS —
M
EDICAL
M
ALPRACTICE —
H
EALTH
F
ACILITIES OR
A
GENCIES —
H
EALTH
C
ARE
P
ROFESSIONALS
.
Only those health care providers and facilities designated in the
statutory provision that addresses the accrual of medical malprac-
tice claims may be sued for medical malpractice (MCL 600.5838a).
4. A
CTIONS —
M
EDICAL
M
ALPRACTICE —
N
OTICE OF
I
NTENT TO
F
ILE A
C
LAIM —
V
ICARIOUS
L
IABILITY
.
A notice of intent to bring a medical malpractice claim that alleges
only vicarious liability need not specifically set forth the legal
theory of vicarious liability or include a statement of the defen-
dant’s employment relationship with the health professional
whose actions gave rise to the suit (MCL 600.2912b).
Mark Granzotto, P.C. (by Mark Granzotto), and J.
Martin Bartnick for Brian Potter.
2009] P
OTTER V
M
C
L
EARY
401
Chapman and Associates, P.C. (by Ronald W. Chap-
man and Brian K. Richtarcik), for Huron Valley Radi-
ology, P.C., and Kristyn Murry, M.D.
Amicus Curiae:
Tanoury, Corbet, Shaw, Nauts & Essad, P.L.L.C. (by
Linda M. Garbarino) for Cardiovascular Clinical Asso-
ciates, P.C.
H
ATHAWAY
, J. At issue before this Court is the proper
interpretation of the statutory provision requiring a
notice of intent to sue (NOI) in medical malpractice
actions.
1
This case raises the issue whether a profes-
sional corporation (PC) must be provided an NOI before
the commencement of the medical malpractice action. It
also raises the issue of what statements must be set
forth in an NOI to satisfy the requirements of MCL
600.2912b(4) when a claim being made against the PC
is based solely on a PC’s vicarious liability for its
physician.
We hold, on the basis of the plain language of the
relevant statutes, that when claims alleged against a PC
are predicated on its vicarious liability for a licensed
health care provider rendering professional services, an
NOI must be provided. The NOI provision, MCL
600.2912b, clearly states that a plaintiff must provide
all health professionals and health facilities an NOI
before commencing a medical malpractice action. MCL
600.5838a delineates those health care providers and
facilities against which claims of medical malpractice
may be asserted.
2
Claims asserted against providers and
facilities not delineated in § 5838a sound in ordinary
1
MCL 600.2912b.
2
Kuznar v Raksha Corp, 481 Mich 169, 177; 750 NW2d 121 (2008).
402 484 M
ICH
397 [July
O
PINION OF THE
C
OURT
negligence.
3
Because § 5838a specifically refers to PCs
in its definitional section, a claim against a PC sounds
in malpractice, but only when the claim asserted
against the PC is for rendering professional services as
defined in MCL 450.225. Under these circumstances, a
PC must be provided an NOI.
4
The claim against Huron
Valley R adiology, P.C., is one based on vicarious liability
for the professional services of its licensed health care
provider-employee; hence, plaintiff Brian Potter was
required to provide a timely NOI as the action is one
sounding in medical malpractice.
Moreover, we hold that the NOI filed in this case was
fully compliant with the plain language of § 2912b(4),
which governs its contents. First, there is no require-
ment in § 2912b(4) to set forth the legal relationships
between named parties; rather, the plain language of
§ 2912b(4)(f) only requires naming each party to be
sued. Secondly, where the only claim asserted against a
PC is one for vicarious liability, and hence no other
standard of care is being asserted against the PC, there
is no requirement within § 2912b that mandates that a
claimant set forth the legal doctrine of vicarious liabil-
ity in the NOI.
The claim at issue in this case was one for vicarious
liability only. In light of MCL 450.225, a PC can only
render professional services through its licensed health
care provider. Where the NOI names both the PC and
the provider, the NOI is fully compliant as long as it sets
forth all the factual and medical information necessary
3
See id. at 172.
4
Conversely, when a claim asserted against a PC involves the actions of
an employee or agent who is unlicensed or not rendering professional
services as delineated in MCL 450.225, the NOI requirement would be
unnecessary, because such a claim would sound in ordinary negligence
rather than medical malpractice.
2009] P
OTTER V
M
C
L
EARY
403
O
PINION OF THE
C
OURT
to inform the PC of the nature of the claim being
asserted against the physician-provider. Because this
NOI met these requirements, it was fully compliant and
there is no need to dismiss this action on the basis of the
NOI. We therefore reverse the Court of Appeals judg-
ment and remand the case to the trial court for further
proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
This is a medical malpractice action involving an
alleged misreading of an MRI by defendant Kristyn H.
Murry, M.D., on June 7, 2001. This misreading allegedly
caused a delay in a needed emergency surgical proce-
dure on plaintiff’s spine. This delay resulted in perma-
nent nerve damage to plaintiff’s spine that impairs his
ability to function, including causing difficulty with
such things as walking and urinating. At the time of the
alleged malpractice, Murry was employed by Huron
Valley Radiology.
The procedural history of this case is complicated and
lengthy. This case has been pending in our appellate
system for over four years as the courts have conducted
an exhaustive review of the content of Potter’s affidavit
of merit and his NOI. The Court of Appeals has issued
two opinions, and we are reviewing this case for the
second time.
5
The most recent Court of Appeals opinion
summarized this long journey through our appellate
system and the reasoning behind the rulings:
In these consolidated appeals, defendants appealed by
leave granted orders in this medical malpractice action
denying their motions for summary disposition pursuant to
MCR 2.116(C)(7). Previously, a majority of this Court
5
Potter v McLeary, 482 Mich 1004 (2008); Potter v McLeary, 480 Mich
915 (2007); Potter v McLeary, 278 Mich App 279; 748 NW2d 599 (2008);
Potter v McLeary, 274 Mich App 222; 732 NW2d 600 (2007).
404 484 M
ICH
397 [July
O
PINION OF THE
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OURT
reversed, holding that plaintiff’s complaint should be dis-
missed with prejudice because the attached affidavits of
merit did not conform to the requirements of MCL
600.2912d. Potter v McLeary, 274 Mich App 222; 732 NW2d
600 (2007). In lieu of granting leave to appeal, our Supreme
Court reversed the portion of this Court’s judgment “dis-
missing the complaint with prejudice, because the dis-
missal should have been without prejudice....”See 480
Mich 915 (2007) (emphasis in original). Our Supreme
Court remanded to this Court for consideration of the
remaining issues not addressed previously. We now affirm
in part, reverse in part, and remand.
As noted in our previous opinion, the alleged malprac-
tice took place on June 7, 2001. The period of limitations in
medical malpractice cases is two years from the date the
claim accrued. MCL 600.5805(6). Presuming the notice of
intent was sufficient, the running of the period of limita-
tions would have been tolled for 182 days from the date of
the notice. MCL 600.2912b(1). A notice of intent was sent
to defendants Huron Valley Radiology, P.C., and Kristyn H.
Murry, M.D., on May 30, 2003, leaving eight days remain-
ing before the period of limitations expired. A notice of
intent was sent to defendants St. Joseph Mercy Hospital
Ann Arbor, Robert Domeier, D.O., and Emergency Physi-
cians Medical Group, P.C., on May 13, 2003, leaving 25 days
before the period of limitations expired. The notices tolled
the running of the limitations periods, which recommenced
on November 30, 2003, and on November 13, 2003, respec-
tively. The limitations period expired on December 8, 2003,
for all defendants. Plaintiff’s complaint was filed on No-
vember 4, 2003.
There was no serious dispute in our prior decision that
the affidavits of merit were fatally defective because they
failed to state how the physicians’ alleged failures related
to plaintiff’s alleged injuries, so they did not contain the
required statement of proximate cause. See MCL
600.2912d. No conforming affidavits of merit were filed by
December 8, 2003. A majority of this Court previously
determined that plaintiff had therefore not filed an affida-
vit of merit at all, pursuant to Geralds v Munson Health-
2009] P
OTTER V
M
C
L
EARY
405
O
PINION OF THE
C
OURT
care, 259 Mich App 225, 240; 673 NW2d 792 (2003), and
Mouradian v Goldberg, 256 Mich App 566, 574; 664 NW2d
805 (2003), so plaintiff’s complaint should be dismissed
with prejudice. This Court therefore deemed it unneces-
sary to address defendants’ challenges to plaintiff’s notices
of intent.
After this Court’s previous decision, our Supreme Court
overruled Geralds and Mouradian as having misapplied
the case of Scarsella v Pollak, 461 Mich 547, 553; 607
NW2d 711 (2000). Kirkaldy v Rim, 478 Mich 581, 583-584;
734 NW2d 201 (2007). Our Supreme Court explained that
Scarsella had only held that “a medical-malpractice com-
plaint filed without an affidavit of merit” was ineffective
and would not toll the running of the applicable limitations
period. Id. at 584 (emphasis in original). It further ex-
plained that Geralds and Mouradian had wrongly extended
that holding to medical-malpractice complaints that were
actually filed with affidavits of merit, but where those
affidavits of merit failed to conform to the requirements of
MCL 600.2912d. Kirkaldy, supra at 584-585. Our Supreme
Court concluded that an affidavit of merit is presumptively
valid—and therefore tolls the running of a limitations
period when filed with a complaint—until successfully
challenged in a judicial proceeding. Id. at 585-586. “Thus, if
the defendant believes that an affidavit is deficient, the
defendant must challenge the affidavit,” and the proper
remedy for a successful challenge is dismissal without
prejudice, affording the plaintiff “whatever time remains
in the period of limitations” to file a complaint with a
conforming affidavit. Id. at 586.
Our Supreme Court’s partial reversal in this case was
based on its decision in Kirkaldy. As applied to the case at
bar, plaintiff’s complaint, filed with the affidavits of merit,
tolled the running of the limitations period. Because we
conclude that those affidavits of merit did not conform to
the requirements of MCL 600.2912b, the proper remedy is
for the trial court to dismiss plaintiff’s complaint without
prejudice. Plaintiff may then file a new complaint with
conforming affidavits of merit within the time remaining in
the limitations period.
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Because we declined to do so previously, we must
address defendants Murry’s and Huron Valley Radiology’s
challenges to the sufficiency of the notices of intent sent to
them. Murry and Huron Valley Radiology first argue that
the notice does not properly state the applicable standard
of practice or care as required by MCL 600.2912b(4)(b). We
agree, in part. The second paragraph of plaintiff’s notice
sets forth the following standard of care:
“The standard of care required Drs. Murry and/or
[Gary] Augustyn and/or [Richard C.] McLeary to correctly
read, interpret and report the correct results to the emer-
gency room under the circumstances. Notwithstanding
that standard of care, Drs. Murry and/or Augustyn and/or
McLeary failed to properly interpret the MRI images and
convey accurate information to the emergency room phy-
sician in charge of the patient that night.”
The standard of care completely fails to make any
reference to defendant Huron Valley Radiology. Our
Supreme Court has explained that plaintiff is not obli-
gated to provide a completely correct standard of care,
but “plaintiff was required to make a good-faith aver-
ment of some particularized standard for each of the
professionals and facilities named in the notices.” Rob-
erts v Mecosta Co Gen Hosp (After Remand), 470 Mich
679, 694; 684 NW2d 711 (2004) (emphasis in original).
The standard alleged here is more than the tautology
rejected in Roberts, and we find it adequate with regard
to defendant Murry. Plaintiff articulated a specific stan-
dard that Murry must correctly read, interpret, and
report the results of the MRI test. This is specific to the
requirements of the service that plaintiff received from
Murry. It was sufficient to put defendant Murry on
notice of the nature of the claim, which was failure to
properly identify and report plaintiff’s injury. Therefore,
it met the requirements of MCL 600.2912b(4)(b) with
regard to Murry. However, the notice cannot satisfy all
the statutory requirements with regard to defendant
Huron Valley Radiology.
***
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Because no other challenges to the notices of intent are
raised, we will not consider them further. Therefore, the
trial court properly denied summary disposition on the
basis of the notices of intent to all defendants other than
Huron Valley Radiology. With regard to Huron Valley
Radiology, we believe that our Supreme Court’s treatment
of deficient—but actually filed—affidavits of merit should,
by analogy, be applied to deficient—but again actually
filed—notices of intent, as well. See Kirkaldy, supra at 586.
Notices of intent are presumed to be valid and proper, so
they support the filing of a complaint after the notice
period has run, unless and until the notice is successfully
challenged. The remedy to be applied if a notice is success-
fully challenged is dismissal without prejudice, affording
the plaintiff the opportunity to cure the deficiency within
the time remaining within the limitations period as there-
tofore tolled by the now-invalidated notice or the subse-
quent filing of the complaint.
We hold as follows: summary disposition is granted
without prejudice to Huron Valley Radiology on the basis of
the notice of intent, summary disposition is denied to all
other defendants on the basis of the notices of intent, and
summary disposition is granted without prejudice to all
defendants on the basis of the affidavits of merit. The
applicable limitations periods remain tolled until entry of
the grants of summary disposition. We remand for further
proceedings consistent with this opinion.
[
6
]
On March 20, 2008, plaintiff filed an application for
leave to appeal asking this Court to grant leave to
consider whether his NOI complied with the content
requirements of § 2912b. On October 1, 2008, this
Court granted leave; however, the issue was limited to
the threshold question of whether it was necessary to
provide an NOI to a PC. That order provided:
On order of the Court, the application for leave to appeal
the March 20, 2008, judgment of the Court of Appeals is
6
Potter, 278 Mich App at 281-286.
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considered and, it is granted, limited to the issue whether
defendant Huron Valley Radiology, P.C., is a “health facility
or agency” to which a plaintiff is required to provide notice
under MCL 600.2912b(1). See MCL 333.20106(1).
[
7
]
Despite the limited grant order, the parties addressed
the content of the NOI and whether it was defective in
their briefing and in oral argument while advancing
their respective positions.
8
After oral argument, the
Court expanded the grant order by asking the parties to
file supplemental briefs on the additional issue of the
tolling of the statute of limitations:
Oral argument having been heard on March 4, 2009, the
parties are directed to submit supplemental briefs address-
ing the issue whether, if a defendant professional corpora-
tion is not an entity to whom notice is required to be
provided under MCL 600.2912b, the applicable statute of
limitations, MCL 600.5805(6), was nonetheless subject to
statutory tolling provided in former MCL 600.5856(d).
[
9
]
As we have resolved the threshold issue by holding that
Potter must provide an NOI to Huron Valley Radiology,
we must also resolve the underlying issue of whether
this NOI is defective in order to conclude the analysis in
this case. We take particular note of the fact that it has
7
Potter, 482 Mich at 1004.
8
Defendant Huron Valley Radiology addressed the sufficiency of the
NOI issue extensively in its brief on appeal. This brief sets forth
the sufficiency issue as one of the questions presented for us to decide.
The brief also sets forth the entire content of the NOI and articulates
the view that the NOI is defective. The brief cites statutes and cases
to support its position. Moreover, in its prayer for relief, defendant asks
us to decide the remaining issues in plaintiff’s application for leave
to appeal. One of the two remaining questions in plaintiff’s application
for leave to appeal is whether the NOI was defective. Further, plaintiff
sufficiently addressed this issue at oral argument. The briefs
and transcript of the oral argument can be viewed
at <http://www.courts.michigan.gov/supremecourt/Clerk/03-09/136336/
136336-Index.html>.
9
Potter v Murry, 483 Mich 922 (2009).
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been over eight years since the malpractice occurred
and nearly six years since the subject NOI was mailed to
defendants. Further, it has been over 5
1
/
2
years since
the complaint was filed, with the last four years having
been devoted to the appeal of issues relating to the
affidavit of merit and the NOI. The parties are still
waiting to have a court address the merits of the case.
Given that we have had briefing and argument on all
necessary issues, we can decide in this opinion both
whether the plaintiff must provide a PC an NOI before
commencing an action as well as whether the subject
NOI was compliant with § 2912b.
II. STANDARD OF REVIEW
The issues presented are issues of statutory interpre-
tation. Statutory interpretation is a question of law,
which this Court reviews de novo.
10
This Court also
reviews de novo a trial court’s decision regarding a
motion for summary disposition.
11
III. ANALYSIS
Interpretation of the NOI provision presents ques-
tions of statutory construction. Assuming that the
Legislature has acted within its constitutional author-
ity, the purpose of statutory construction is to discern
and give effect to the intent of the Legislature.
12
In
determining the intent of the Legislature, this Court
must first look to the language of the statute.
13
The
Court must, first and foremost, interpret the language
10
In re Investigation of March 1999 Riots in East Lansing, 463 Mich
378, 383; 617 NW2d 310 (2000).
11
Herald Co v Bay City, 463 Mich 111, 117; 614 NW2d 873 (2000).
12
Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119
(1999).
13
Id.
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of a statute in a manner that is consistent with the
intent of the Legislature.
14
“ ‘As far as possible, effect
should be given to every phrase, clause, and word in the
statute. The statutory language must be read and
understood in its grammatical context, unless it is clear
that something different was intended.’ ”
15
Moreover,
when considering the correct interpretation, the statute
must be read as a whole.
16
Individual words and
phrases, while important, should be read in the context
of the entire legislative scheme.
17
In defining particular
words in statutes, we must consider both the plain
meaning of the critical word or phrase as well as its
placement and purpose in the statutory scheme.
18
A
statute must be read in conjunction with other relevant
statutes to ensure that the legislative intent is correctly
ascertained.
19
Finally, the statute must be interpreted in
a manner that ensures that it works in harmony with
the entire statutory scheme.
20
A. THE NATURE OF SERVICES PROVIDED BY
A PROFESSIONAL CORPORATION
Before we address whether a plaintiff must provide
an NOI to a PC, it is necessary to review the legal
structure of a PC and understand the nature of the
services it provides. Since a professional corporation is
a statutory creature, we look to the Professional Service
14
Id. at 135.
15
Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d 570, 579 (2008),
quoting Sun Valley, supra at 237.
16
Sun Valley, supra at 237.
17
Herman, supra at 366.
18
Id., quoting Bailey v United States, 516 US 137, 145; 116 S Ct 501;
133 L Ed 2d 472 (1995).
19
Wayne Co v Auditor General, 250 Mich 227, 233; 229 NW 911 (1930).
20
Id. at 234.
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Corporation Act, MCL 450.221 et seq., for guidance. The
relevant provision of that act provides, in pertinent
part:
A corporation organized and incorporated under this act
shall not render professional services within this state
except through its officers, employees, and agents who are
duly licensed or otherwise legally authorized to render the
professional services within this state. The term employee
does not include secretaries, bookkeepers, technicians, and
other assistants who are not usually and ordinarily consid-
ered by custom and practice to be rendering professional
services to the public for which a license or other legal
authorization is required. [MCL 450.225 (emphasis
added).]
This provision makes clear that a PC, while a sepa-
rate legal entity, does not render professional services
on its own; rather, it can only render professional
services through its employees or agents who are li-
censed or legally authorized to render the professional
services. This language stands as a legislative recogni-
tion that when a PC renders professional services, it is
inexorably linked to the licensed health care provider.
For all practical purposes, the PC and the health care
provider are treated as the same entity when profes-
sional services are involved.
21
Moreover, a PC can per-
form other types of services or take other actions
through unlicensed employees or agents, but such ac-
tions would not constitute professional services under
the act. This delineation of types of services is empha-
sized not only in the first sentence, it is reasserted in
the second sentence of MCL 450.225, which states that
“[t]he term employee does not include secretaries,
bookkeepers, technicians, and other assistants who are
not usually and ordinarily considered by custom and
21
See Peters v Golds, 366 F Supp 150 (ED Mich, 1973), which held that
a PC is treated as a person for purposes of § 5838a.
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practice to be rendering professional services to the public
for which a license or other legal authorization is re-
quired.” Thus, a PC can engage in two different types of
actions: those that are professional services and those that
are not. While the PC is vicariously liable for either of
these types of actions pursuant to MCL 450.226,
22
this
distinction is pertinent in determining whether the
medical malpractice statutes apply to a particular cause
of action.
B. PROFESSIONAL CORPORATIONS AND THE NOI REQUIREMENT
We now examine whether a plaintiff is required to
provide an NOI to a PC before commencing a medical
malpractice action. We start our analysis by examining
the language of the NOI provision itself. Section 2912b
states in relevant part:
22
MCL 450.226 provides:
Nothing contained in this act shall be interpreted to
abolish, repeal, modify, restrict or limit the law now in
effect in this state applicable to the professional relation-
ship and liabilities between the person furnishing the
professional services and the person receiving such pro-
fessional service and to the standards for professional
conduct. Any officer, shareholder, agent or employee of a
corporation organized under this act shall remain per-
sonally and fully liable and accountable for any negligent
or wrongful acts or misconduct committed by him, or by
any person under his direct supervision and control,
while rendering professional service on behalf of the
corporation to the person for whom such professional
services were being rendered. The corporation shall be
liable up to the full value of its property for any negligent
or wrongful acts or misconduct committed by any of its
officers, shareholders, agents or employees while they
are engaged on behalf of the corporation in the rendering
of professional services.
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(1) Except as otherwise provided in this section, a
person shall not commence an action alleging medical
malpractice against a health professional or health facility
unless the person has given the health professional or
health facility written notice under this section not less
than 182 days before the action is commenced. [Empha-
sis added.]
The first sentence in this section provides critical
guidance. The statute expressly limits the requirement
of an NOI to an action alleging medical malpractice:
“[A] person shall not commence an action alleging
medical malpractice....” Thus, the first step in the
analysis is to determine whether the action sounds in
medical malpractice or ordinary negligence. Only those
actions sounding in medical malpractice are governed
by the mandates of this statute.
This Court recently reiterated the method by which
claims of medical malpractice and ordinary negligence
are distinguished. In Kuznar, this Court was asked to
determine whether a claim against a pharmacy for the
actions of its non-licensed technicians sounded in medi-
cal malpractice or in ordinary negligence. In holding
that the claims sounded in ordinary negligence, Kuznar
reiterated the longstanding rule that claims sound in
medical malpractice only when a two-pronged test is
met. First, the claim must occur in the course of a
professional relationship and, second, the claim must
pose questions of medical judgment outside the realm of
common knowledge and experience. If either prong is
not met, the action sounds in ordinary negligence
rather than medical malpractice.
23
With regard to the
first prong, Kuznar stated:
23
There is no dispute that the second prong of the Kuznar test has been
met in this case. The claim indisputably presents questions of medical
judgment outside the realm of common knowledge and experience.
414 484 M
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A professional relationship exists if a person or an entity
capable of committing medical malpractice was subject to a
contractual duty to render professional health-care ser-
vices to the plaintiff. Under the common law, only physi-
cians and surgeons were potentially liable for medical
malpractice. But in MCL 600.5838a(1), the Legislature
expanded the scope of those who could be liable for medical
malpractice. It provided for medical malpractice claims to
be brought against “a person or entity who is or who holds
himself or herself out to be a licensed health care profes-
sional, licensed health facility or agency, or an employee or
agent of a licensed health facility or agency....”
The primary issue in this case is whether the pharmacy
technician and the pharmacy are covered by MCL
600.5838a(1).
[
24
]
Kuznar correctly opined that only those health care
providers and facilities designated within § 5838a could
be sued for malpractice. Therefore, only those providers
and facilities covered by § 5838a can meet the profes-
sional relationship prong of the test. Accordingly, Kuz-
nar reviewed the language of § 5838a(1) to determine if
a pharmacy was a designated entity. Section 5838a(1)(a)
defines a “licensed health facility or agency” as “a
health facility or agency licensed under article 17 of the
public health code, Act No. 368 of the Public Acts of
1978, being sections 333.20101 to 333.22260 of the
Michigan Compiled Laws.”
Because § 5838a(1)(a) limits its application to only
those health facilities and agencies licensed under ar-
ticle 17 of the Public Health Code, Kuznar next turned
its attention to MCL 333.20106(1) to determine
whether a pharmacy was within the list of designated
entities. MCL 333.20106(1) provides that “health facil-
ity or agency” means:
24
Kuznar, supra at 177.
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(a) An ambulance operation, aircraft transport opera-
tion, nontransport prehospital life support operation, or
medical first response service.
(b) A clinical laboratory.
(c) A county medical care facility.
(d) A freestanding surgical outpatient facility.
(e) A health maintenance organization.
(f) A home for the aged.
(g) A hospital.
(h) A nursing home.
(i) A hospice.
(j) A hospice residence.
(k) A facility or agency listed in subdivisions (a) to (h)
located in a university, college, or other educational insti-
tution.
Kuznar concluded that because pharmacies were not
included within this list, the claims asserted against
them did not sound in medical malpractice.
25
Rather,
the claims asserted against the pharmacy sounded in
ordinary negligence, and, accordingly, the medical mal-
practice statutes simply did not apply. It is this same
statutory provision and analysis that has led to the
question we now address. Because this same list of
health facilities contained in § 333.20106(1) does not
include PCs, the question arises whether PCs are ex-
empt from any of the requirements of the medical
malpractice statutory scheme. We conclude that it is
25
We note that satisfying the first prong of Kuznar requires more than
mere inclusion within the Public Health Code lists. The service provided
must also be a professional service, the determination of which requires
further analysis. For example, while hospitals are included in the list, not
all hospital employees, such as janitors and dietary aides, provide
professional services. However, inclusion within either § 5838a or the
Public Health Code lists is a necessary predicate to an action sounding in
medical malpractice.
416 484 M
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unnecessary to refer to the list in § 333.20106(1) in this
instance because the plain language of § 600.5838a, as
amended effective April 1, 1994, expressly includes
professional corporations within its definitional section.
Section 5838a(1), as amended, provides in pertinent
part:
For purposes of this act, a claim based on the medical
malpractice of a person or entity who is or who holds
himself or herself out to be a licensed health care profes-
sional, licensed health facility or agency, or an employee or
agent of a licensed health facility or agency who is engaging
in or otherwise assisting in medical care and treatment,
whether or not the licensed health care professional, li-
censed health facility or agency, or their employee or agent
is engaged in the practice of the health profession in a sole
proprietorship, partnership, professional corporation,or
other business entity, accrues at the time of the act or
omission that is the basis for the claim of medical malprac-
tice, regardless of the time the plaintiff discovers or other-
wise has knowledge of the claim. As used in this subsection:
(a) “Licensed health facility or agency” means a health
facility or agency licensed under article 17 of the public
health code, Act No. 368 of the Public Acts of 1978, being
sections 333.20101 to 333.22260 of the Michigan Compiled
Laws.
(b) “Licensed health care professional” means an indi-
vidual licensed or registered under article 15 of the public
health code, Act No. 368 of the Public Acts of 1978, being
sections 333.16101 to 333.18838 of the Michigan Compiled
Laws, and engaged in the practice of his or her health
profession in a sole proprietorship, partnership, profes-
sional corporation, or other business entity. However, li-
censed health care professional does not include a sanitar-
ian or a veterinarian. [Emphasis added.]
This amendment of § 5838a was enacted as part of
the same package of bills that created the NOI provision
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in April 1994.
26
The amended § 5838a refers to pro-
fessional corporations twice. Before this amendment,
§ 5838a made no reference whatsoever to profes-
sional corporations.
27
This specific addition of profes-
sional corporations to § 5838a was a clear statement by
the Legislature that it intended a PC to be an entity
against which a medical malpractice action could be
asserted. Further, the placement of the reference to
professional corporations within § 5838a(1)(b) (defining
heath care professionals), rather than within
§ 5838a(1)(a) (defining health facilities), stands as a
recognition of the nature of services as delineated in the
Professional Service Corporation Act, MCL 450.225.
When a PC renders professional services, it is rendering
those professional services through the licensed health
care pro-vider and the two are treated as though they
are one entity.
26
Section 5838a and § 2912b were both amended by 1993 PA 78,
effective April 1, 1994.
27
The former § 5838a(1) provided:
A claim based on the medical malpractice of a person who is,
or who holds himself or herself out to be, a licensed health care
professional, licensed health facility or agency, employee or
agent of a licensed health facility or agency who is engaging in
or otherwise assisting in medical care and treatment, or any
other health care professional, whether or not licensed by the
state, accrues at the time of the act or omission which is the
basis for the claim of medical malpractice, regardless of the time
the plaintiff discovers or otherwise has knowledge of the claim.
As used in this subsection:
(a) “Licensed health facility or agency” means a health facility or
agency licensed under article 17 of the public health code, Act No. 368
of the Public Acts of 1978, being sections 333.20101 to 333.22181 of
the Michigan Compiled Laws.
(b) “Licensed health care professional” means an individual
licensed under article 15 of the public health code, Act No. 368 of
the Public Acts of 1978, being sections 333.16101 to 333.18838 of
the Michigan Compiled Laws. Licensed health care professional
does not include a sanitarian or a veterinarian.
418 484 M
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Finally, § 5838a recognizes that some services pro-
vided by a PC are professional services while others
are not. Where the services provided are professional
services rendered by a licensed health care provider,
any claim challenging those services as being negli-
gent sound in medical malpractice, and the statutes
governing medical malpractice apply. Where the ser-
vices provided by a PC are not professional services as
defined in MCL 450.225, the claim would not be
subject to the medical malpractice requirements be-
cause those claims sound in ordinary negligence. To
hold otherwise would negate the intent of the Legis-
lature and ignore the proper rules of statutory con-
struction, which require that any one statute be read
in conjunction with other relevant statutes to ensure
that legislative intent is being correctly ascertained.
Accordingly, in the instant case, the first prong of
the Kuznar test is met because a PC is a covered
entity under § 5838a and the services provided were
professional services. The second prong of the Kuznar
test is also met because there is no dispute that the
claims asserted posed questions of medical judgment
outside the realm of common knowledge and experi-
ence. Consequently, because both prongs of the Kuz-
nar test have been met, we conclude that this is a
claim that sounds in medical malpractice. Because
§2912b(1) clearly requires a claimant to provide a
timely NOI before commencing a medical malpractice
action, plaintiff was required to provide this PC with
a timely NOI.
C. THE CONTENT REQUIREMENTS OF MCL 600.2912b
Because plaintiff did provide an NOI to Huron Valley
Radiology, the next issue is whether the NOI was
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defective. The resolution of this issue requires an ex-
amination of the content requirements of § 2912b. The
Court of Appeals ruled that the instant NOI contained
a defect, thereby necessitating dismissal of the action
without prejudice. The purported defect in the NOI can
be summarized as the failure of plaintiff to set forth a
statement in the NOI that Dr. Murry was the employee
of Huron Valley Radiology and that this PC was vicari-
ously liable for the actions of its employee-doctor. We
take note of the fact that both the trial court and the
Court of Appeals held that the NOI was fully compliant
with the content requirements under § 2912b(4) in all
respects regarding Dr. Murry, a holding with which we
fully agree. Also, we note that the only claim pursued
against Huron Valley Radiology was one for vicarious
liability for the actions of Dr. Murry, and the NOI fully
informed Huron Valley Radiology and Dr. Murry of the
claim being asserted against Dr. Murry. Thus, we are
compelled to review § 2912b to determine if there is a
statutory mandate to specifically set forth the legal
relationship between these two parties in the NOI, and
whether there is a statutory mandate to set forth that
the claim asserted is one for vicarious liability when no
other claims are being asserted. Our inquiry once again
necessarily begins with an examination of the language
of § 2912b.
The first question we examine is whether § 2912b
requires that legal and employment relationships be-
tween the parties be set forth in an NOI. We hold that
the answer is no. The content requirements for an NOI
are set forth in subsection 2912b(4):
The notice given to a health professional or health
facility under this section shall contain a statement of at
least all of the following:
(a) The factual basis for the claim.
420 484 M
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(b) The applicable standard of practice or care alleged by
the claimant.
(c) The manner in which it is claimed that the applicable
standard of practice or care was breached by the health
professional or health facility.
(d) The alleged action that should have been taken to
achieve compliance with the alleged standard of practice or
care.
(e) The manner in which it is alleged the breach of the
standard of practice or care was the proximate cause of the
injury claimed in the notice.
(f) The names of all health professionals and health
facilities the claimant is notifying under this section in
relation to the claim.
We find no language in this subsection that requires
a claimant to set forth the nature of the relationship
between the parties to be sued. To the contrary, subsec-
tion f clearly states that all that need be done in this
regard is to identify the names of the health profes-
sional and facility being notified. We cannot add a
requirement that is not contained in the statute’s plain
language. Moreover, we cannot assume that defendants
were unable to comprehend the nature of the relation-
ship between them without having a claimant advise
them in writing that such a relationship exists. Cer-
tainly they are fully aware of the legal relationship
between them.
28
More importantly, however, there sim-
ply is no requirement in the statute that a claimant
28
Moreover, it would be illogical to assume that a claimant knows
the precise legal relationship between defendants. The provider may
have either an actual employment relationship with the PC or they
may have a complex independent contractor arrangement. While the
PC can be vicariously liable for the acts of either under MCL 450.226,
the statute logically imposes no requirement on the claimant to allege
the precise nature of the relationship.
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advise the defendants of their legal or employment
relationship.
29
Accordingly, Potter’s NOI was not defec-
tive in this regard.
Our next query is whether § 2912b(4) contains a
requirement that the claimant specifically set forth the
legal theory of vicarious liability within the NOI, when
vicarious liability is the only claim asserted. We again
hold that the answer is an unequivocal no. There is
nothing in the language of § 2912b(4) that states that a
claimant must set forth the legal theory of vicarious
liability. Nor can we add such a requirement to the
statute. The statute is focused on a requirement that
the claimants advise the recipient of the factual and
medical basis of the claim being asserted.
30
If no other
claim is asserted against the PC, then there is no
29
However, even assuming for the sake of argument that there was a
requirement to set forth legal relationships in the statute, the NOI meets
that burden. Plaintiff’s NOI does more than merely name the entities to
be sued; the NOI names Huron Valley Radiology as well as the three
individual physicians and “their employees or agents, actual or osten-
sible, thereof.” This phrase is repeated three times throughout the NOI.
This language is more than sufficient to provide Huron Valley Radiology
with notice of the facts establishing the legal relationships at such an
early stage of the proceeding.
30
Any argument that it is necessary to plead facts supporting vicarious
liability or to state the phrase “vicarious liability” as part and parcel of
the “factual basis of the claim” is misplaced and misreads the NOI
statute. Section 2912b(4) does not contain such a requirement and we
must assume that the absence of the requirement was purposeful. If the
Legislature wanted such a requirement, it could have easily included it.
It could have phrased § 2912b(4)(a) as “the factual and legal basis for the
claim and whether the claim is for direct liability or vicarious liability.”
But it did not do so. The Legislature could also have inserted additional
mandates, such as requiring the claimant to set forth that the “provider
is licensed to practice medicine in Michigan” or “the provider is licensed
under a specific provision of the public health code.” However, again, the
Legislature chose not to do so. Absent statutory guidance, we cannot
impose additional requirements upon claimants. The better judicial
practice is to refrain from adding requirements to a statute that are not
contained within its language.
422 484 M
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possibility for confusion regarding the nature of the
claim being asserted against it. If the claimant wishes to
make some other claim against the PC, then the claim-
ant would be required to set forth that additional claim
in order to satisfy the § 2912b(4)(b) “applicable stan-
dard of care” requirement. But if the only claim as-
serted against the PC is one for vicarious liability, the
“applicable standard of care” requirement is met be-
cause there is only one standard of care: the standard of
care for the provider. There is no separate standard of
care for the PC. This analysis not only holds true to the
statutory language, but also fully recognizes that the
agent and principal share a singular identity for pur-
poses of performing professional services, pursuant to
the statute governing professional corporations.
31
Ac-
cordingly, where the NOI adequately sets forth the
claim against the agent or employee, the claimant need
not repeat the same information, or state the words
“vicarious liability” in the NOI, because the statute
does not require the claimant to do so.
Moreover, we find Huron Valley Radiology’s asser-
tions especially troubling because it openly admits
knowing and understanding that it is vicariously liable
for the actions of its employee, Dr. Murry. In other
words, while admitting that it employs Dr. Murry,
Huron Valley Radiology simultaneously asks that we
dismiss plaintiff’s case for plaintiff’s failure to tell it
that it employs Dr. Murry. We query what purpose such
a statement would serve. Huron Valley Radiology’s
proposition exalts form over substance in an intolerable
manner. More importantly, however, because there is no
requirement in the statute to state the legal term
“vicarious liability” within the NOI, we will not hold
31
MCL 450.225.
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plaintiff to this requirement, nor will we write such a
requirement into the statute.
32
This holding is also consistent with this Court’s
longstanding principles forming the foundation of vi-
carious liability. A master is bound to keep his or her
servants within their proper bounds, and is responsible
if he or she does not. “The law contemplates that their
acts are his acts, and that he is constructively present at
them all.”
33
This Court has long held that a principal “is
only liable because the law creates a practical identity
with his men [agents], so that he is held to have done
what they have done.”
34
This longstanding legal doc-
trine is embodied in MCL 450.225. As previously dis-
cussed, that statute recognizes that a PC can only
render professional services through its licensed health
care providers. Accordingly, with regard to vicarious
32
We do not believe that this Court’s ruling in Roberts v Mecosta Co
Gen Hosp (Roberts II), 470 Mich 679; 684 NW2d 711 (2004), is dispositive.
Roberts II discussed a similar issue that arose when the plaintiff asserted
claims in a manner that left confusion regarding whether the claims
asserted were for direct liability, vicarious liability, or both. The Court
stated:
Although it appears from plaintiff’s complaint that she is
claiming that the hospital and professional corporation are vicari-
ously liable for the negligence of their agents, the notices of intent
implied that plaintiff alleged direct negligence against these de-
fendants for negligently hiring or negligently granting staff privi-
leges to the individual defendants. [Roberts II, supra at 693.]
We question whether Roberts II was correctly decided because it adds
a requirement not found in the language of the statute; namely, that
statements be “particularized.” However, Roberts II opined that because
there was confusion with regard to whether the claim was for direct or
vicarious liability, the PC was unable to understand the nature of the
claims being asserted. In the case before us, no such potential for
confusion exists, and, accordingly, Roberts II is distinguishable.
33
Smith v Webster, 23 Mich 298, 299 (1871).
34
Id. at 300. See also Ducre v Sparrow-Kroll Lumber Co, 168 Mich 49,
52; 133 NW 938 (1911).
424 484 M
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liability claims, the parties are in fact the same actor,
and therefore, there is no need for a claimant to
duplicate the same information in the NOI for both
parties. If the information contained within the NOI is
sufficient with regard to the agent, it is sufficient with
regard to the principal, because they share a practical
identity for purposes of that claim.
In sum, the issue is whether Huron Valley Radiology
could reasonably be held to comprehend the nature of
the claims being asserted against it. The NOI provided
the necessary information for both the PC and the
doctor to have such an understanding. The only claim
asserted against Huron Valley Radiology was for the
actions of Dr. Murry, and those actions were fully and
adequately set forth in the NOI. Nothing more is
required. We conclude that the NOI in this case was not
defective and dismissal of the action is not warranted.
IV. CONCLUSION
We hold that a plaintiff must provide a timely NOI to
a PC before commencing a medical malpractice action
when the claims alleged against the PC are predicated
on its vicarious liability for a licensed health care
provider who is rendering professional services. Be-
cause the claim against Huron Valley Radiology is based
on vicarious liability for the professional services of its
employee, a licensed health care provider, plaintiff was
required to provide a timely NOI as the action is one
sounding in medical malpractice.
Moreover, we conclude that the NOI filed in this case
was fully compliant with the plain language of
§ 2912b(4), which governs its contents. First, there is no
requirement in § 2912b(4) to set forth the legal rela-
tionships between named parties; rather, the plain
language of § 2912b(4)(f) only requires naming each
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party to be sued. Secondly, where the only claim as-
serted against a PC is one for vicarious liability, and
hence no other standard of care is being asserted
against the PC, there is no requirement within § 2912b
that mandates that a claimant set forth the legal
doctrine of vicarious liability in the NOI.
The claim at issue in this case was one for vicarious
liability only. In light of MCL 450.225, a PC can only
render professional services through its licensed health
care provider. Where the NOI names both the PC and
the provider, the NOI is fully compliant so long as it sets
forth all of the factual and medical information neces-
sary to inform the PC of the nature of the claim being
asserted against the physician-provider. Because this
NOI meets these requirements, it is fully compliant and
there is no need to dismiss this action on the basis of the
NOI.
We therefore reverse the Court of Appeals judgment
and remand the case to the trial court for further
proceedings consistent with this opinion. Furthermore,
we vacate the order abeying the application for leave to
appeal in Potter v McLeary (Docket Nos. 136338 and
136339) and deny the application in light of this opin-
ion.
K
ELLY
, C.J., and C
AVANAGH
and W
EAVER
, JJ., con-
curred with H
ATHAWAY
,J.
K
ELLY
,C.J.(concurring). I fully agree with and sign
the majority opinion in this case. I write for the sole
purpose of responding to Justice M
ARKMAN
’s comments
attacking the majority’s respect for the doctrine of stare
decisis. In his partial concurrence and partial dissent,
Justice M
ARKMAN
repeats a claim that he and Justices
C
ORRIGAN
and Y
OUNG
have published numerous times
426 484 M
ICH
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ELLY
, C.J.
this term
1
with the same string of citations.
2
The claim
is that their colleagues who comprise the majority in
this case have been ignoring precedent. A review of the
cases in the string citation serves to illustrate that the
claim is simply false.
Justice M
ARKMAN
claims that in Vanslembrouck v
Halperin,
3
the Court ignored Vega v Lakeland Hosps.
4
However, Vanslembrouck is distinguishable from Vega
because Vega determined that MCL 600.5851(1) is a
saving provision, whereas Vanslembrouck held that
MCL 600.5851(7) is a statute of limitations. Thus, these
cases examined the effect of altogether different statu-
tory provisions.
Justice M
ARKMAN
also claims that in Hardacre v
Saginaw Vascular Services,
5
the Court failed to follow
Boodt v Borgess Med Ctr.
6
However, in Hardacre, the
Court denied leave to appeal because the allegations in
the plaintiff’s notice of intent to find an action did not
need to comply with Boodt. In Hardacre, the burden of
explication of the standard of care was minimal.
7
1
See, e.g., Petersen v Magna Corp, 484 Mich 300, 391-392; 773 NW2d
564 (2009) (M
ARKMAN
, J., dissenting); Chambers v Wayne Co Airport Auth,
483 Mich 1081, 1082 (2009) (C
ORRIGAN
, J., dissenting); Scott v State Farm
Mut Auto Ins Co, 483 Mich 1032, 1036 (2009) (C
ORRIGAN
, J., dissenting);
Beasley v Michigan, 483 Mich 1025, 1027 (2009) (C
ORRIGAN
, J., dissent-
ing); Juarez v Holbrook, 483 Mich 970 (2009) (M
ARKMAN
, J., dissenting).
Justice Y
OUNG
joined the dissenting statements in Chambers, Scott,
Beasley, and Juarez.
2
Post at 478 n 23.
3
Vanslembrouck v Halperin, 483 Mich 965 (2009).
4
Vega v Lakeland Hosps at Niles-St Joseph, Inc, 479 Mich 243; 736
NW2d 561 (2007).
5
Hardacre v Saginaw Vascular Services, 483 Mich 918 (2009).
6
Boodt v Borgess Med Ctr, 481 Mich 558; 751 NW2d 44 (2008).
7
See Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679,
694 n 12; 684 NW2d 711 (2004).
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Nor did the Court ignore precedents with which it
disagrees in Sazima v Shepherd Bar & Restaurant.
8
Justice M
ARKMAN
claims that the Court failed to follow
Chrysler v Blue Arrow Transport Lines.
9
However, Sa-
zima involved exceptions to the “going and coming”
rule as set forth in Camburn v Northwest School Dist.
10
Thus, the Court was not bound by Chrysler.
Justice M
ARKMAN
next claims the Court ignored
Smith v Khouri
11
when it decided Juarez v Holbrook.
12
However, in Juarez, it was undisputed that the trial
court performed a reasonableness analysis in calculat-
ing the proper attorney fee award. Therefore, a remand
in light of Smith was unnecessary.
In Beasley v Michigan,
13
the Court considered the
statutory notice provision of MCL 600.6431(3). Thus,
contrary to Justice M
ARKMAN
’s claim, the Court was not
bound by Rowland v Washtenaw Co Rd Comm .
14
Row-
land interpreted the notice provision of MCL
600.1404(1); thus, the cases involved different statutory
provisions altogether.
Likewise, Justice M
ARKMAN
is incorrect in claiming
that the Court failed to enforce Thornton v Allstate Ins
Co
15
and Putkamer v Transamerica Ins Corp of
8
Sazima v Shepherd Bar & Restaurant, 483 Mich 924 (2009).
9
Chrysler v Blue Arrow Transport Lines, 295 Mich 606; 295 NW 331
(1940).
10
Camburn v Northwest School Dist (After Remand), 459 Mich 471,
478; 592 NW2d 46 (1999).
11
Smith v Khouri, 481 Mich 519; 751 NW2d 472 (2008).
12
Juarez, supra.
13
Beasley v Michigan, 483 Mich 1025 (2009).
14
Rowland v Washtenaw Co Rd Comm, 477 Mich 197; 731 NW2d 41
(2007).
15
Thornton v Allstate Ins Co, 425 Mich 643; 391 NW2d 320 (1986).
428 484 M
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America
16
in Scott v State Farm Mut Auto Ins Co.
17
In
Scott, the Court of Appeals undertook a thorough analysis
of the relevant no-fault jurisprudence and applied prece-
dent as it has been understood for nearly 30 years.
Finally, the Court did not fail to abide by Rowland in
Chambers v Wayne Co Airport Auth.
18
Chambers inter-
preted MCL 691.1406, while Rowland interpreted MCL
691.1404(1). Thus, the cases dealt with different statu-
tory provisions and the Court was not bound to extend
Rowland to the statute at issue in Chambers.
In summary, the accusation that the Court has been
ignoring precedent is incorrect. Had other justices been
in the majority in some of the decisions complained
about, they might well have extended existing prece-
dent to a new area of the law. But the refusal of those in
the majority in this case to so extend precedent is quite
different from a refusal on their part to apply it. This is
a distinction that Justices M
ARKMAN
,C
ORRIGAN
, and
Y
OUNG
would do well to concede.
C
ORRIGAN
,J.(concurring in part and dissenting in
part). I agree with the majority and the Court of
Appeals that plaintiff’s notice of intent (NOI) was
sufficient as to defendant Dr. Kristyn Murry. I respect-
fully dissent, however, from the majority’s holding that
defendant Huron Valley Radiology, P.C. (Huron), was
entitled to an NOI. Instead, I concur with and join part
I of Justice Y
OUNG
’s partial concurrence and partial
dissent with regard to whether plaintiff was required to
serve defendant Huron with an NOI to commence a
medical malpractice action under MCL 600.2912b. I
16
Putkamer v Transamerica Ins Corp of America, 454 Mich 626; 563
NW2d 683 (1997).
17
Scott, supra at 1032.
18
Chambers, supra.
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fully agree with Justice Y
OUNG
that Huron is neither a
“health professional” nor a “health facility” entitled to
notice under MCL 600.2912b. Whether the Legislature,
by oversight or design, excluded professional corpora-
tions such as Huron from the statutory definition of
“health facility or agency” in MCL 333.20106(1), it is
for the Legislature, and not this Court, to decide.
Because Huron was not entitled to an NOI, plaintiff
was not entitled to tolling. I share Justice M
ARKMAN
’s
concerns as discussed in part III(C) of his partial
concurrence and partial dissent regarding Justice
Y
OUNG
’s analysis of the tolling issue. Specifically, I
disagree that as long as an NOI is sufficient as to one
defendant, the statute of limitations is tolled as to all
defendants. I agree with Justice M
ARKMAN
’s conclusion
that plaintiff’s complaint here was untimely filed. Ac-
cordingly, I would hold that the action against Huron
was barred by the statute of limitations. Moreover, I
also concur with part III(D) of Justice M
ARKMAN
’s
opinion concerning whether plaintiff can retroactively
amend an NOI.
Additionally, I dissent from the majority’s holding
that plaintiff’s NOI as to Huron was sufficient. As an
initial matter, I would not reach the sufficiency of the
notice issue at all for the reasons set forth in part III(E)
of Justice M
ARKMAN
’s partial concurrence and dissent,
with which I fully concur and join. I also concur with
Justice M
ARKMAN
’s discussion of this issue, post at 455 n
1. Because the Court’s limited grant order did not
instruct the parties to brief this issue and because both
the litigants and the public should be able to rely on our
orders, I would not resolve issues in this Queen of
Hearts fashion.
1
1
See Lewis Carroll, Alice’s Adventures In Wonderland (New York:
Signet Classic, 2000), ch 12, p 115 (“ ‘No, no!’ said the Queen. ‘Sentence
first—verdict afterwards.’ ”).
430 484 M
ICH
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Y
OUNG
,J.(concurring in part and dissenting in part).
I concur only in the result of the majority opinion,
which holds that defendant, Huron Valley Radiology,
P.C. (Huron), is not entitled to dismissal.
I respectfully dissent from the majority’s holding
that a plaintiff is required to serve a professional
corporation not enumerated in MCL 333.20106(1) with
a notice of intent to commence a medical malpractice
action (NOI) under MCL 600.2912b (“the NOI stat-
ute”). Such a defendant is neither a “health profes-
sional” nor a “health facility” under the NOI statute;
thus, a plaintiff is not required to give that defendant
written notice under the NOI statute before commenc-
ing a medical malpractice action. I would additionally
hold that plaintiff’s claim against defendant Huron was
tolled pursuant to MCL 600.5856(d) because plaintiff
provided an NOI in compliance with the NOI statute for
“a claim” that would have been barred during the
applicable notice period.
I further dissent from the majority’s analysis
whether plaintiff’s NOI was deficient. The NOI statute
requires that the plaintiff provide a statement of “[t]he
factual basis for the claim.”
1
A necessary factual predi-
cate for a vicarious liability claim is that there is an
employer-employee (or other principal-agent) relation-
ship, but such a statement of defendant Huron’s rela-
tionship to the other individual defendants is not found
in plaintiff’s NOI; thus, plaintiff’s NOI is defective.
As the majority opinion itself demonstrates, it is
swiftly becoming increasingly acceptable for this Court
to avoid attempting a precise or meaningful statutory
analysis in favor of imprecise vagaries and broad pro-
nouncements. Such analyses are favored only by those
1
MCL 600.2912b(4)(a).
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who seek a particular result and cannot find an expli-
cable justification for it. The majority’s analysis threat-
ens to render the statutory notice procedure nugatory
and undermines, if not overrules, this Court’s prece-
dent.
2
I believe that this Court’s decisions should be
grounded in precise and rigorous analysis of the rel-
evant statutory text and that this Court should avoid
creating “inconsistencies among its cases and . . . re-
duce confusion in [the Court’s] jurisprudence by over-
ruling conflicting decisions.”
3
Accordingly, I would reverse the Court of Appeals and
hold that defendant is not entitled to dismissal due to
plaintiff’s defective NOI.
I. PLAINTIFF WAS NOT REQUIRED TO SERVE DEFENDANT HURON,
A PROFESSIONAL CORPORATION, WITH AN NOI.
The Court of Appeals held that plaintiff served de-
fendant Huron, a professional corporation, with a de-
fective NOI and that entitled Huron to dismissal. How-
ever, only a “health professional” and “health facility”
are entitled to notice under the NOI statute, MCL
600.2912b.
4
Thus, a threshold issue is whether defen-
dant Huron is a “health professional” or “health facil-
ity.” If not, the defect in plaintiff’s NOI is rendered
moot and does not entitle defendant to dismissal.
2
See Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679;
684 NW2d 711 (2004) (Roberts II).
3
Devillers v Auto Club Ins Ass’n, 473 Mich 562, 571 n 19; 702 NW2d
539 (2005).
4
MCL 600.2912b(1) provides:
Except as otherwise provided in this section, a person shall not
commence an action alleging medical malpractice against a health
professional or health facility unless the person has given the
health professional or health facility written notice under this
section not less than 182 days before the action is commenced.
[Emphasis added.]
432 484 M
ICH
397 [July
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Because plaintiff has persuasively argued in this
Court that defendant Huron is neither a “health pro-
fessional” nor a “health facility” entitled to notice
under the NOI statute, I would hold that plaintiff’s
defective NOI as to defendant Huron was inconsequen-
tial.
5
5
The NOI statute only applies to medical malpractice actions. This is
clearly a medical malpractice action, but not for the reasons stated by the
majority. Huron is subject to medical malpractice liability because a
principal sued for the medical malpractice of its agent is sued in medical
malpractice.
The first step when determining whether a plaintiff has alleged
medical malpractice is to consider “whether [the claim] is being brought
against someone who, or an entity that, is capable of malpractice.” Bryant
v Oakpointe Villa Nursing Centre, Inc, 471 Mich 411, 420; 684 NW2d 864
(2004). This Court has consistently explained that the accrual statute,
MCL 600.5838a, does not define, but rather expands, who may be sued
for medical malpractice. Bryant, supra at 420-421; Kuznar v Raksha
Corp, 481 Mich 169, 177; 750 NW2d 121 (2008). Here, plaintiff raises a
claim of vicarious liability, not direct liability, against defendant Huron.
See Cox v Flint Bd of Hosp Managers, 467 Mich 1, 11; 651 NW2d 356
(2002).
Michigan courts have consistently recognized actions against a prin-
cipal in medical malpractice under a vicarious liability theory when the
principal was not identified in the accrual statute but the agent was
subject to medical malpractice liability. See, e.g., Francisco v Parchment
Med Clinic, PC, 407 Mich 325; 285 NW2d 39 (1979) (vicarious liability
action against a professional corporation for medical malpractice of a
general practitioner and surgeon before the amendment of MCL
600.5838a adding “professional corporation” in 1994, 1993 PA 78);
Becker v Meyer Rexall Drug Co, 141 Mich App 481; 367 NW2d 424 (1985)
(vicarious liability action against a pharmacy, which is not identified in
that accrual statute, Kuznar, supra, for medical malpractice of a phar-
macist); Simmons v Apex Drug Stores, Inc, 201 Mich App 250; 506 NW2d
562 (1993) (same).
Conversely, this Court has held that vicarious liability claims against
corporate entities were stated in ordinary negligence because the agent
could not be liable in medical malpractice. See Kambas v St Joseph’s
Mercy Hosp of Detroit, 389 Mich 249, 256; 205 NW2d 431 (1979) (decided
when the accrual statute did not refer to a “licensed health facility or
agency” or otherwise include a hospital, and holding that “[t]he
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This Court has previously defined the term “health
facility” in the NOI statute through reference to the
Public Health Code (PHC),
6
which defines “health
facility or agency” as:
defendant hospital’s liability, being herein predicated upon the theory of
respondeat superior, and having determined that nurses are not subject
to the two year malpractice statute of limitations, we conclude that the
three year statute of limitations is applicable to injuries arising from the
negligent act of a nurse and is equally applicable to defendant employer
hospital herein”); Kuznar, supra at 172 (holding that because the
employee could not be liable in medical malpractice, “vicarious liability
for [the employee’s alleged negligence] by the pharmacy [which is not
referenced in § 5838a(1)] may also proceed under the three-year statute
of limitations for ordinary negligence”). Thus, when the principal is not
identified in the accrual statute, a vicarious liability claim is not auto-
matically an ordinary negligence claim. Rather, the nature of the claim
depends on whether the agent is sued in medical malpractice.
The nature of the claim against the agent defines the vicarious
liability claim. If the agent is sued in medical malpractice, the vicarious
liability claim against the principal is in medical malpractice. This does
not make the principal a “licensed health care professional.” MCL
600.5838a(1)(b). It makes the principal liable for the acts of a “licensed
health care professional.”
Here, defendant Huron’s agents, defendants Dr. Kristyn Murry and
Dr. Richard McLeary, are radiologists subject to medical malpractice
liability. There is no dispute that plaintiff’s claim sounds in medical
malpractice. See Bryant, supra at 422; ante at 414 n 23. Accordingly,
plaintiff’s vicarious liability claim against defendant Huron is a medical
malpractice claim.
6
See Omelenchuk v City of Warren, 461 Mich 567, 571 n 11; 609 NW2d
177 (2000). See also Bates v Gilbert, 479 Mich 451, 459; 736 NW2d 566
(2007) (using the definition of “health profession” in the PHC to define
that term in MCL 600.2169—expert testimony in medical malpractice
actions).
In Omelenchuk, the plaintiffs’ decedent suffered a heart attack and
the plaintiff sued the defendant city and fire department alleging medical
malpractice. At issue was whether the plaintiffs’ complaint was timely
filed in accordance with the various notice periods in the NOI statute. A
threshold issue was whether the NOI statute applied to the plaintiffs’
claims against the defendants. This Court held that the NOI statute
applied because the PHC “defines ‘[h]ealth facility’ to include an ‘ambu-
434 484 M
ICH
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OUNG
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(a) An ambulance operation, aircraft transport opera-
tion, nontransport prehospital life support operation, or
medical first response service.
(b) A clinical laboratory.
(c) A county medical care facility.
(d) A freestanding surgical outpatient facility.
(e) A health maintenance organization.
(f) A home for the aged.
(g) A hospital.
(h) A nursing home.
(i) A hospice.
(j) A hospice residence.
(k) A facility or agency listed in subdivisions (a) to (h)
located in a university, college, or other educational insti-
tution.
[
7
]
Several of the health facilities listed could be incorpo-
rated as professional corporations. Significantly, how-
ever, defendant Huron, although a professional corpo-
ration, is not a listed health facility. Thus, defendant
Huron is not a “health facility.”
The PHC does not define “health professional.” “Pro-
fessional,” however, is commonly defined as “a member of
a profession, [especially] one of the learned professions.”
8
The PHC defines “health profession” as “a vocation,
calling, occupation, or employment performed by an
individual acting pursuant to a license or registration
lanceoperation’...[and t]hecity of Warren has an ambulance opera-
tion.” Omelenchuk, supra at 571 n 11.
7
MCL 333.20106(1).
8
Random House Webster’s College Dictionary (1997). See MCL 8.3a
(“All words and phrases shall be construed and understood according to
the common and approved usage of the language....”).
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issued under this article.”
9
Thus, only an “individual”
can practice a “health profession.” Because the PHC
defines “individual” as “a natural person,”
10
only a
natural person can be a “health professional,” and
defendant Huron is therefore not a “health profes-
sional.”
Instead of applying these interpretations consistent
with our precedent, the majority relies on the definition
of “licensed health care professional” in the accrual
statute, MCL 600.5838a:
11
“an individual licensed or
registered under article 15 of the public health code...
9
MCL 333.16105(2) (emphasis added).
10
MCL 333.1105(1). See MCL 333.16101(2), which provides that the
definitions in MCL 333.1101 et seq. are applicable to MCL 333.16105(2).
11
MCL 600.5838a(1), in pertinent part, provides:
For purposes of this act, a claim based on the medical malprac-
tice of a person or entity who is or who holds himself or herself out
to be a licensed health care professional, licensed health facility or
agency, or an employee or agent of a licensed health facility or
agency who is engaging in or otherwise assisting in medical care
and treatment, whether or not the licensed health care profes-
sional, licensed health facility or agency, or their employee or agent
is engaged in the practice of the health profession in a sole
proprietorship, partnership, professional corporation, or other
business entity, accrues at the time of the act or omission that is
the basis for the claim of medical malpractice, regardless of the
time the plaintiff discovers or otherwise has knowledge of the
claim.Asusedinthissubsection:
(a) “Licensed health facility or agency” means a health facility
or agency licensed under article 17 of the public health code, Act
No. 368 of the Public Acts of 1978, being sections 333.20101 to
333.22260 of the Michigan Compiled Laws.
(b) “Licensed health care professional” means an individual
licensed or registered under article 15 of the public health code,
Act No. 368 of the Public Acts of 1978, being sections 333.16101 to
333.18838 of the Michigan Compiled Laws, and engaged in the
practice of his or her health profession in a sole proprietorship,
partnership, professional corporation, or other business entity.
However, licensed health care professional does not include a
sanitarian or a veterinarian.
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and engaged in the practice of his or her health profes-
sion in a sole proprietorship, partnership, professional
corporation, or other business entity.”
12
As stated, a
professional corporation is not an “individual.”
Interestingly, the majority simply disregards this
Court’s very recent interpretation of the definition of
“licensed health care professional” in the accrual stat-
ute. In Kuznar, the defendant pharmacy sought the
benefit of the shortened period of limitations for medi-
cal malpractice and argued that it was subject to
medical malpractice liability because it was a “licensed
health care professional” under the accrual statute.
Just last year, we unanimously rejected that argument
and explained that “[t]he flaw in defendant’s position is
that the Public Health Code defines ‘individual’ to
mean ‘a natural person.’ ”
13
The majority’s argument
here suffers the same flaw that we unanimously re-
jected. A professional corporation is not “a natural
person.” Furthermore, a professional corporation is not
“licensed or registered under article 15 of the public
health code.” The majority cannot acknowledge the
existence of Kuznar without overruling it or changing
its rationale here. It has therefore chosen to ignore
Kuznar.
The majority’s analysis is superficial. The majority
merely announces that it discovered the term “profes-
sional corporation” in a related statute and, therefore, a
professional corporation is entitled to notice. In serious
statutory construction, context matters and so does
grammar.
In the accrual statute, “licensed health care profes-
sional” is defined by modifying the subject, “an indi-
12
MCL 600.5838a(1)(b).
13
Kuznar, supra at 179, quoting MCL 333.1105(1).
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vidual,” with the clause “engaged in the practice of his
or her health profession in a sole proprietorship, part-
nership, professional corporation, or other business
entity.” Thus, instead of providing that a professional
corporation is a “licensed health care professional,” the
statute provides that practice of a health profession in a
professional corporation is simply one way for “an
individual” to meet the requirements to be a “licensed
health care professional.”
The context of subsection (1) of the accrual statute
also betrays the majority’s position. It provides, in
pertinent part, that
a claim based on the medical malpractice of a person...
who is . . . a licensed health care professional,...whether
or not the licensed health care professional...isengaged
in the practice of the health profession in a sole proprietor-
ship, partnership, professional corporation, or other busi-
ness entity, accrues at the time of the act or omission that
is the basis for the claim of medical malpractice....[MCL
600.5838a(1).]
Thus, the reference to a professional corporation makes
clear that practice in a professional corporation does
not affect when a medical malpractice claim accrues.
Moreover, the majority’s interpretation is repudiated
by the rule of statutory interpretation that prohibits
rendering statutory terms surplusage or nugatory.
14
The majority proclaims that “[f]or all practical pur-
poses, the PC and the health care provider are treated
as the same entity when professional services are in-
volved.”
15
This pronouncement is designed to ignore
reality and the actual text of the statute.
14
See Odom v Wayne Co, 482 Mich 459, 471; 760 NW2d 217 (2008),
citing Herald Co, Inc v Eastern Michigan Univ Bd of Regents, 475 Mich
463, 470; 719 NW2d 19 (2006).
15
Ante at 412.
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To arrive at its conclusion that a professional
corporation is included in the NOI statute, the ma-
jority conflates common-law principles with its obli-
gation to accurately construe this statute. It there-
fore emphasizes the unremarkable proposition of
common-law vicarious liability that a corporation can
only act through its officers and agents,
16
but ignores
the equally unremarkable proposition that a corpora-
tion is a distinct legal entity.
17
The flaw in this analysis
is that it imports common-law theories of liability to
defeat the statutory enumeration of covered entities
that does not include a professional corporation.
18
The
Legislature is free to include and exclude any entity
from the statutory notice procedure that it desires. By
importing extra-textual theories of liability into this
statutory procedural requirement, the majority de-
prives the Legislature of that option and renders sur-
plusage portions of the statute the Legislature enacted.
As stated, the majority holds that a professional
corporation is a “health professional” because the term
“professional corporation” appears in the accrual stat-
16
See Mossman v Millenbach Motor Sales, 284 Mich 562, 568; 280 NW
50 (1938), citing Garey v Kelvinator Corp, 279 Mich 174, 191; 271 NW 723
(1937).
17
See Bourne v Sanford, 327 Mich 175, 191; 41 NW2d 515 (1950)
(“[A corporation] is an artificial entity separate and distinct from the
holders of its individual stock.”), citing Trustees of Dartmouth College
v Woodward, 17 US (4 Wheat) 518;4LEd629(1819); Wells v Firestone
Tire & Rubber Co, 421 Mich 641, 650; 364 NW2d 670 (1984) (“We
recognize the general principle that in Michigan separate entities will
be respected.”).
18
Justice M
ARKMAN
makes the same error. See post at 458. Further-
more, my analysis is neither inconsistent with Kuznar and the tolling
statute nor internally inconsistent. See post at 459 n 5. I emphasize that
liability and procedure are distinct matters. Here, Huron’s liability is
provided by common law. See note 5 of this opinion. The pertinent
procedure is provided by statute.
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ute definition of “licensed health care provider.” That
definition, however, also includes any “other business
entity.” By the majority’s logic, any “other business
entity” is a “health professional.” If that were true,
then the terms “health facility” in the NOI statute
and “licensed health facility or agency” in the accrual
statute would be needless surplusage. For example, a
hospital is listed in the PHC definition used to define
“health facility” and “licensed health care facility or
agency.”
19
A hospital may be incorporated and, as such,
is any “other business entity.” Thus, under the majori-
ty’s analysis, a hospital is, “for all practical purposes,” a
“licensed health care professional.” The same is true for
all other entities listed in the PHC definition of “li-
censed health facility or agency.”
20
Because it renders
the term “health facility” in the NOI statute needless
surplusage, the majority’s interpretation is errone-
ous.
Because defendant Huron is neither a “health facil-
ity” nor a “health professional,” I would hold that
plaintiff was not required to serve it with an NOI before
commencing a medical malpractice action against it.
21
Thus, plaintiff’s claim against defendant Huron was not
subject to dismissal for a defective NOI.
19
See MCL 333.20106(1)(g); Omelenchuk, supra at 571 n 11; Kuznar,
supra at 177-179.
20
See MCL 333.20106(1).
21
Justice M
ARKMAN
contends that my analysis is inconsistent with
Roberts I and Roberts II. Post at 459 n 5. Justice M
ARKMAN
is certainly
aware that no matter how thoughtful the opinion, we are, as a practical
matter, incapable of resolving every potential issue that could conceivably
arise in a case. Neither the parties nor this Court raised the issue
whether the professional corporation there was required to receive an
NOI in Roberts I or Roberts II. I prefer to base my analysis on issues that
we did address rather than consider inferences from issues that we did
not and were not asked to address.
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II. THE STATUTE OF LIMITATIONS FOR PLAINTIFF’S CLAIM AGAINST
DEFENDANT HURON WAS TOLLED UNDER MCL 600.5856(d).
This Court ordered supplemental briefing on
“whether, if a defendant professional corporation is not
an entity to whom notice is required to be provided
under MCL 600.2912b, the applicable statute of limita-
tions, MCL 600.5805(6), was nonetheless subject to
statutory tolling provided in former MCL
600.5856(d).”
22
If the statute of limitations was not
tolled under former subsection (d) of the tolling statute,
MCL 600.5856, then plaintiff’s claim against defendant
Huron was filed after the period of limitations expired
and defendant Huron would be entitled to dismissal
with prejudice. I am persuaded that the statute of
limitations for plaintiff’s claim against Huron was
tolled under former subsection (d).
The tolling statute applicable here provided:
23
The statutes of limitations or repose are tolled:
(a) At the time the complaint is filed and a copy of the
summons and complaint are served on the defendant.
(b) At the time jurisdiction over the defendant is other-
wise acquired.
(c) At the time the complaint is filed and a copy of the
summons and complaint in good faith are placed in the
hands of an officer for immediate service, but in this case
the statute is not tolled longer than 90 days after the
copy of the summons and complaint is received by the
officer.
(d) If, during the applicable notice period under section
2912b, a claim would be barred by the statute of limita-
tions or repose, for not longer than a number of days equal
22
483 Mich 922 (2009).
23
The tolling statute was amended by 2004 PA 87, effective April 22,
2004.
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to the number of days in the applicable notice period after
the date notice is given in compliance with section 2912b.
[Emphasis added.]
Plaintiff argues that because subsection (d) uses the
indefinite article “a,” not the definite article “the,” it is
not claim specific and, therefore, tolls all claims in the
complaint. Defendant argues that tolling only applies
for “a claim” to which “the applicable notice period
under section 2912b” applies.
I believe that the dispositive question is “what is
being tolled?” The first sentence of the tolling statute
states that “[t]he statutes of limitations or repose are
tolled.” The plural form suggests that more than one
statute of limitations can be tolled by each subsection,
including subsection (d).
By their nature, each of the other tolling provisions,
§ 5856(a) through (c), apply to all claims in a complaint,
not just individual claims. Thus, the plural form in the
prefatory clause is consistent with those provisions
because they could involve multiple statutes of limita-
tions.
Based on the prefatory provision, there is a strong
textual argument that under subsection (d), “[t]he
statutes of limitations...aretolled” for all claims in a
complaint when “during the applicable notice period
under section 2912b, a claim would be barred by the
statute of limitations or repose.” Thus, for example, in
a complaint alleging a malpractice claim and a negli-
gence claim, if the requirements of subsection (d) are
met, the “statutes of limitations...are tolled” for both
claims. I believe that this is the superior textual argu-
ment.
Although the prefatory clause does not specify which
statutes of limitations are tolled, there is no textual
442 484 M
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basis for restricting tolling to a single claim.
24
Subsec-
tion (d) only requires “a claim” to be barred during the
notice period and notice to be given in compliance with
the NOI statute; the prefatory clause provides that
multiple statutes are tolled as a result.
25
24
Justice M
ARKMAN
misconstrues my analysis. I do not suggest that
more than one statute of limitations is always tolled. Post at 469.
Certainly, if there is only one claim, then only one statute of limitations
is tolled. Nor do I suggest that “all claims against all defendants in
Michigan” are tolled by a single sufficient NOI as to a single defendant.
Post at 472 n 16 (emphasis omitted). Hyperbole aside, I believe that there
is simply no textual basis for treating subsection (d) of the tolling statute
different than subsection (a) through (c) of the tolling statute. The
Legislature is perfectly capable of providing such a basis for distinction;
see my discussion of subsection (c) of the tolling statute as amended by
2004 PA 87 below.
25
I agree with Justice M
ARKMAN
that “the notice of intent must
contain all of the statements required by § 2912b(4) as to ‘each
particular [defendant] named in the notice.’ ” Post at 470, quoting
Roberts II, supra at 692. Because a plaintiff is statutorily prohibited
from commencing a medical malpractice action without first giving
the notice required under the NOI statute, dismissal is appropriate
when a plaintiff fails to give such notice. See MCL 600.2912b(1);
Burton v Reed City Hosp Corp, 471 Mich 745, 753; 691 NW2d 424
(2005) (holding that “dismissal is an appropriate remedy for noncom-
pliance with the notice provisions” of the NOI statute). Thus, contrary
to Justice M
ARKMAN
’s concern that my analysis would deprive defen-
dants the notice that the statutory procedure is designed to provide,
post at 473-474, a plaintiff’s failure to provide a defendant with a
sufficient NOI still entitles that defendant to dismissal, tolling not-
withstanding.
Justice M
ARKMAN
suggests that I create a “trap for unwary plain-
tiffs.” Post at 474 n 19. Admittedly, a plaintiff will be unable to re-file
some claims—specifically, those for which an NOI is required. How-
ever, as I discussed above, a professional corporation that is not a
“health facility” is not entitled to notice; thus, a defective NOI is
inconsequential for such a defendant. Moreover, if that claim is
dismissed, tolling afforded by subsection (d) of the tolling statute is
not rendered moot because the plaintiff will not need to wait the notice
period to re-file his complaint. It is for this reason that my interpre-
tation does not create an irreconcilable conflict with MCL
600.2912b(6).
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I note that the current tolling provision is more
precise on this issue. MCL 600.5856(c) provides:
The statutes of limitations or repose are tolled in any of
the following circumstances:
***
(c) At the time notice is given in compliance with the
applicable notice period under section 2912b, if during that
period a claim would be barred by the statute of limitations
or repose; but in this case, the statute is tolled not longer
than the number of days equal to the number of days
remaining in the applicable notice period after the date
notice is given. [Emphasis added.]
As indicated by the highlighted text, the significant
distinction between current subsection (c) and former
subsection (d) is that the current provision restates
what is tolled (“the statute”), which specifies that
tolling is limited to only one statute while the former
provision remained unlimited by the prefatory clause
(“[t]he statutes”). Thus, current subsection (c) is ex-
pressly claim specific and only tolls “the statute” for the
previously referenced claim that would be barred.
26
26
Justice M
ARKMAN
correctly states that under my analysis of who must
receive an NOI and my interpretation of current subsection (c) of the
tolling statute, “the plaintiff would have to file his medical malpractice
action against the professional corporation before he filed a medical
malpractice action against the physician, if the period of limitations
would have expired within 182 days after the plaintiff served his notice of
intent on the physician.” Post at 471 n 14. Although this procedure seems
unusual, we are without authority to question the wisdom of the
Legislature and “fix” perceived problems. See State Tax Law Cases,54
Mich 350, 360; 20 NW 493 (1884) (“[W]e have no supervisory power in
respect to legislation;...thelaw-makingpowerisnotresponsible to the
judiciary for the wisdom of its acts, and . . . , however unwise or impolitic
their acts may appear, they must stand as law unless the legislature has
plainly overstepped its constitutional authority....”).Moreover, a plain-
tiff is not prohibited from bringing an action against the principal
without naming the agent, Krolik v Curry, 148 Mich 214, 223; 111 NW
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Here, plaintiff’s NOI was sufficient as to co-
defendant Murry.
27
Subsection (d) applied to plaintiff’s
claim against Murry because the period of limitations
would have expired during the notice period if the statute
of limitations was not tolled. Thus, “notice [was] given in
compliance with section 2912b” for “a claim” that “would
[have been] barred by the statute of limitations,” so “[t]he
statutes of limitations... [were] tolled.” Accordingly, I
would reverse the Court of Appeals and hold that defen-
dant Huron was not entitled to dismissal.
III. PLAINTIFF’S NOI WAS DEFICIENT.
I join part III(E) of Justice M
ARKMAN
’s dissent
28
regard-
ing the majority’s decision to address and resolve an
issue that the parties were specifically directed not to
address. The majority has deprived the parties of an
opportunity to brief and argue the merits of the suffi-
ciency of plaintiff’s NOI. As such, the majority’s action
suggests that parties should follow our grant orders at
their peril. No serious court should function in this
fashion.
Although not properly before this Court nor perti-
nent to my analysis, I address the majority’s analysis
that plaintiff’s NOI was not deficient because it will
likely affect how lower courts evaluate an NOI. I believe
that plaintiff’s NOI was deficient and the majority’s
analysis is no more than a shallow gloss over the
statutory text.
761 (1907); Al-Shimmari v Detroit Med Ctr, 477 Mich 280, 294; 731
NW2d 29 (2007); 3 Am Jur 2d, Agency, § 333, p 699, and I fully expect
that such actions would be consolidated, see MCR 2.505(A)(2), if the
action against the agent proceeds after the notice procedure.
27
See Potter v McLeary (On Remand), 278 Mich App 279; 748 NW2d
599 (2008).
28
Specifically, post at 476-478 and nn 22 & 23. I also join post at 455
n1.
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As stated, a plaintiff must serve an NOI before
commencing a medical malpractice action against a
health facility or health professional.
29
In subsection (4)
of the NOI statute, the Legislature has enumerated six
specific topics that the plaintiff must address in his
NOI:
The notice given to a health professional or health
facility under this section shall contain a statement of at
least all of the following:
(a) The factual basis for the claim.
(b) The applicable standard of practice or care alleged by
the claimant.
(c) The manner in which it is claimed that the applicable
standard of practice or care was breached by the health
professional or health facility.
(d) The alleged action that should have been taken to
achieve compliance with the alleged standard of practice or
care.
(e) The manner in which it is alleged the breach of the
standard of practice or care was the proximate cause of the
injury claimed in the notice.
(f) The names of all health professionals and health
facilities the claimant is notifying under this section in
relation to the claim.
“Subsections 2912b(1) and (4) clearly place the burden
of complying with the notice of intent requirements on
the plaintiff.”
30
In Roberts II, this Court established the standard for
whether an NOI complied with the statutory require-
ments of subsection (4) of the NOI statute: “the claim-
ant is required to make good-faith averments that
provide details that are responsive to the information
29
MCL 600.2912b(1).
30
Roberts I, supra at 66.
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sought by the statute and that are as particularized as
is consistent with the early stages of the proceedings.”
31
An NOI that does not meet this standard is deficient.
Subsection (a) requires the plaintiff to provide a
statement of “[t]he factual basis for the claim.” Here,
plaintiff has alleged that defendant Huron is vicariously
liable for the acts of its agents, defendants Murry, Dr.
Richard D. McLeary, and Dr. Gary Augustyn. Thus, “the
claim” is vicarious liability. An essential factual predi-
cate for plaintiff’s vicarious liability claim is that the
individual defendants were defendant Huron’s employ-
ees. Nowhere in the notice does plaintiff suggest that
any employer-employee (or other principal-agent rela-
tionship) existed between the defendants.
32
Because
plaintiff omitted “[t]he factual basis for the claim,” he
failed to meet the Roberts II standard and, therefore,
the NOI is deficient.
The majority holds that there is “no language in [sub-
section (4) of the NOI statute] that requires a claimant to
set forth the nature of the relationship between the
parties to be sued.”
33
To support its conclusion, the
majority states that no such requirement is found in
subsection (f).
34
That is true, but no more sufficient
than stating that no such requirement is found in
subsection (e). The majority offers no discussion of
subsection (a)—“[t]he factual basis for the claim”—and
why a principal-agent relationship is not part of
31
Roberts II, supra at 701.
32
As this Court stated in Roberts II, “the claimant is not required to
craft her notice with omniscience.” Id. at 691. All that was required of
plaintiff was a good-faith averment of the relationship that served as the
factual basis for his vicarious liability claim, Roberts II, supra at 701; the
claimant was not required to know the precise employment relationship
between the defendants. See ante at 422 n 29.
33
Ante at 421.
34
Ante at 421.
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the factual basis of plaintiff’s vicarious liability claim.
The majority proclaims that it is not “necessary to plead
facts supporting vicarious liability.”
35
As stated, here,
“the claim” is vicarious liability. Thus, the majority has
proudly announced that it is not necessary to state the
factual basis for the claim.
36
This is most likely a relief
to plaintiffs and a shock to the Legislature and anyone
who has read the NOI statute since it was enacted. The
majority cannot square its analysis with the text of the
relevant statute, so it does not attempt such folly.
The majority buttresses its conclusion with its as-
sessment of defendant Huron’s subjective knowledge:
“Certainly they are fully aware of the legal relationship
between them.”
37
The majority’s reliance on the knowl-
edge of this defendant is not a relevant assessment of
what the Legislature has required a plaintiff to provide
in its NOI.
35
Ante at 422 n 30. I do not contend that the plaintiff must “state the
phrase ‘vicarious liability.’ ” Ante at 422 n 30. That is a legal theory.
Rather, plaintiff must state “[t]he factual basis for the claim.” MCL
600.2912b(4)(a).
36
The majority asserts that subsection (4) of the NOI statute does not
require a plaintiff to state facts supporting a vicarious liability claim
because the majority has managed to conjure up a way that the
Legislature “could have” phrased subsection (4) of the NOI statute. Ante
at 422 n 30. The Legislature is not required to place the judiciary in
checkmate when enacting its policy choices. Rather, it is our obligation to
“to discern and give effect to the intent of the Legislature... by
examining the language of the statute itself [because the] words of a
statuteprovide‘themostreliableevidenceofitsintent....’”Sun Valley
FoodsCovWard, 460 Mich 230, 236; 596 NW2d 119 (1999), quoting
United States v Turkette, 452 US 576, 593; 101 S Ct 2524; 69 L Ed 2d 246
(1981). The majority offers no discussion of the meaning of the words
actually enacted in subsection (a). Nor does the majority state why an
agent-principal relationship is not part of “[t]he factual basis” for
plaintiff’s vicarious liability claim. The majority reaches its desired result
using this faulty analysis and does so mindless of the consequences of its
rule by fiat.
37
Ante at 421.
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This Court previously rejected such a construction of
subsection (4) of the NOI statute for an obvious reason:
it would render the statutory notice procedure com-
pletely nugatory.
38
The NOI statute, in plain and unam-
biguous terms, places the burden on the plaintiff to
provide “written notice under this section”
39
that “con-
tain[s] a statement”
40
of six specific topics. Thus, the
Legislature has not required that the defendant “fill in
the blanks.” Undeterred, the majority replaces the
legislative standards with its own requirement and
creates a slippery slope in which the plaintiff complies
with the NOI statute by simply declaring “I went to the
doctor and something bad happened.”
41
Under the ma-
jority’s analysis, the burden is on the defendant to fill in
the remainder of the missing but required NOI infor-
mation.
The majority fails to comprehend the significance of
its decision. Our decisions do not resolve only the case
before us, but rather, all cases subsequently filed in
Michigan raising similar issues; we are obligated to
ensure that all cases are resolved in a manner that is
consistent with the text of the applicable statute.
42
Consider, for example, a corporate defendant that never
employed or worked with any of the other individual
38
See Roberts II, supra at 696 n 14.
39
See MCL 600.2912b(1), which provides that “a person shall not
commence an action alleging medical malpractice against a health
professional or health facility unless the person has given the health
professional or health facility written notice under this section not less
than 182 days before the action is commenced.”
40
MCL 600.2912b(4).
41
Roberts II, supra at 697 n 15.
42
See Cameron v Auto Club Ins Ass’n, 476 Mich 55, 66; 718 NW2d 784
(2006), citing Marbury v Madison, 5 US (1 Cranch) 137, 177;2LEd60
(1803) for the fundamental proposition that “ours is to declare what the
law is, not what it ought to be.”
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defendants listed—one that is named in the NOI
through mistake or error. How does an NOI that fails to
allege any relationship between the corporate defen-
dant and the individual defendants inform that defen-
dant of the factual basis for the claim against it? The
majority’s analysis threatens to deprive a named defen-
dant of the notice that the statutory procedure is
designed to provide.
The justification that a particular defendant might
have knowledge about data the plaintiff is statutorily
obligated to supply is just a fancy way for the majority
to subvert a statute it does not like. At the very least,
the majority is not pretending any longer to enforce the
plain language of the NOI statute.
The majority’s lack of concern for the implications of
its discussion is illustrated by its treatment of Roberts
II. The majority purports to leave for another day the
question whether Roberts II was correctly decided.
43
43
Ante at 424 n 32. It is quickly becoming a new favored practice of the
majority to flag decisions of the past decade and invite challenges to those
decisions. See Bush v Shabahang, 484 Mich 156, 175 n 34; 772 NW2d 272
(2009). It is difficult to reconcile this practice with the majority’s previous
claims of fidelity to stare decisis. See, e.g., People v Gardner, 482 Mich 41,
87; 753 NW2d 78 (2008) (K
ELLY
, J., dissenting) (“Our decision about
whether an earlier case must be overruled should be guided by more than
a notion that the case was incorrectly decided.”); Pohutski v City of Allen
Park, 465 Mich 675, 712; 641 NW2d 219 (2002) (K
ELLY
, J., dissenting)
(“[I]f each successive Court, believing its reading is correct and past
readings wrong, rejects precedent, then the law will fluctuate from year
to year, rendering our jurisprudence dangerously unstable.”); Devillers,
supra at 620 (W
EAVER
, J., dissenting) (“Under the doctrine of stare decisis,
it is necessary to follow earlier judicial decisions when the same points
arise again in litigation.”); Rowland v Washtenaw Co Rd Comm, 477
Mich 197, 278; 731 NW2d 41 (2007) (C
AVANAGH
, J., dissenting) (“Under
the doctrine of stare decisis, principles of law deliberately examined and
decided by a court of competent jurisdiction become precedent and should
not be lightly departed. Absent the rarest circumstances, we should
remain faithful to established precedent.”);
450 484 M
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,J.
Nevertheless, it states that “the issue is whether [Hu-
ron] could reasonably be held to comprehend the nature
of the claims being asserted against it.”
44
That standard
is distinctly not the Roberts II standard set out above.
Indeed, that standard is similar to the standard articu-
lated by the dissent in Roberts II: “The statement
simply must provide notice of a potential claim suffi-
cient to allow potential defendants to ascertain the
basis for the claim and enter into settlement discus-
sions.”
45
Once again, such a view is inconsistent with
the statutory text.
This continues a disturbing trend in which the ma-
jority
overrules by indirection, or at least leaves the impression
that it is doing so, thereby sowing the seeds of confusion
and making it difficult for the citizens of this state to
comprehend precisely what our caselaw requires. This
appears to be an unfortunate return to our predecessors’
past practice of “frequently pa[ying] little attention to the
People v Hawkins, 468 Mich 488, 517-518; 668 NW2d 602 (2003)
(C
AVANAGH
, J., dissenting) (“ ‘We have overruled precedents when the
intervening developments of the law has “removed or weakened the
conceptual underpinnings from the prior decision, or where the later law
has rendered the decision irreconcilable with competing legal doctrines or
policies.” Absent those changes or compelling evidence bearing on
Congress’ original intent, our system demands that we adhere to our
prior interpretations of statutes.’ ”), quoting Patterson v McLean Credit
Union, 491 US 164, 173; 109 S Ct 2363; 105 L Ed 2d 132 (1989) (citations
omitted). See also Todd C. Berg, Hathaway Attacks, Michigan Lawyers
Weekly, October 27, 2008, in which Justice H
ATHAWAY
was quoted: “I
believe in stare decisis. Something must be drastically wrong for the
court to overrule.”; Lawyers’ Election Guide: Judge Diane Marie Hatha-
way, Michigan Lawyers Weekly, October 30, 2006, in which Justice
H
ATHAWAY
, then running for a position on the Court of Appeals, was
quoted: “Too many appellate decisions are being decided by judicial
activists who are overturning precedent.”
44
Ante at 425.
45
Roberts II, supra at 713-714 (K
ELLY
, J., dissenting).
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inconsistencies among its cases and declin[ing] to reduce
confusion in [the Court’s] jurisprudence by overruling
conflicting decisions.”
[
46
]
IV. CONCLUSION
I do not believe that defendant Huron is a “health
professional” or “health facility” entitled to notice
under the NOI statute and, therefore, plaintiff was not
required to serve defendant Huron with an NOI. I also
believe that plaintiff’s claim against defendant Huron
was tolled pursuant to subsection (d) of the tolling
statute. Accordingly, I would reverse the Court of Ap-
peals and hold that defendant Huron is not entitled to
dismissal because of plaintiff’s defective NOI.
M
ARKMAN
,J.(concurring in part and dissenting in
part). I agree with the majority that plaintiff’s notice of
intent was sufficient with regard to defendant Kristyn
Murry and that defendant Huron Valley Radiology, P.C.
(HVR) was entitled to a notice of intent. However, I
disagree that the notice of intent was sufficient with
regard to HVR. The notice of intent did not contain a
statement of “[t]he applicable standard of practice or
care alleged by the claimant” with regard to HVR, as is
required by MCL 600.2912b(4)(b). As this Court ex-
plained in Roberts v Mecosta Co Gen Hosp (After Re-
mand), 470 Mich 679, 693-694; 684 NW2d 711 (2004)
(Roberts II), a notice of intent must include a “particu-
larized standard for each of the professionals and facili-
ties named in the notices,” which necessarily must
indicate “whether plaintiff [is] alleging that [the] defen-
dants were vicariously or directly liable to [the plain-
46
Beasley v Michigan, 483 Mich 1025, 1030 (2009) (C
ORRIGAN
,J.,
dissenting), quoting Devillers, supra at 571 n 19.
452 484 M
ICH
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tiff].” Because the notice of intent here did not include
such a statement, it was clearly defective with regard to
HVR.
We held in Roberts v Mecosta Co Gen Hosp, 466 Mich
57; 642 NW2d 663 (2002) (Roberts I), that a defective
notice of intent does not toll the statute of limitations.
Because the period of limitations in a medical malprac-
tice action is two years, MCL 600.5805(6), and because
the alleged malpractice in this case occurred on June 7,
2001, and the complaint was not filed until November 4,
2003, the complaint was untimely filed, and thus the
action against HVR is barred by the statute of limita-
tions. I would affirm the portions of the Court of
Appeals opinion that held that the notice of intent was
sufficient as to defendant Murry and insufficient as to
defendant HVR, but reverse the portions of that opin-
ion that held that the defective notice of intent tolled
the statute of limitations and, thus, that a dismissal
without prejudice was appropriate. The action against
HVR should be dismissed with prejudice.
I. FACTS AND HISTORY
The alleged medical malpractice occurred on June 7,
2001. Plaintiff alleges that Murry, a radiologist working
for HVR, “failed to properly interpret and report back
the true and correct results of the MRI . . . .” He further
alleges “[t]hat as a result of the... delay in surgical
[intervention, he] has suffered permanent neurologic
injury and deficit.” On May 30, 2003, just eight days
before the expiration of the two-year period of limita-
tions, plaintiff served defendants Murry and HVR with
a notice of intent to file suit. On November 4, 2003,
plaintiff filed his medical malpractice complaint against
defendants.
2009] P
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ARKMAN
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The trial court denied defendants’ motion for sum-
mary disposition. The Court of Appeals reversed, con-
cluding that because plaintiff’s affidavits of merit were
defective, the complaint had to be dismissed with preju-
dice. Potter v McLeary, 274 Mich App 222; 732 NW2d
600 (2007). This Court reversed “the portion of the
judgment of the Court of Appeals dismissing the com-
plaint with prejudice, because the dismissal should have
been without prejudice as to the affidavit of merit
issue.” Potter v McLeary, 480 Mich 915 (2007) (empha-
sis in the original). We remanded to the Court of
Appeals for consideration of defendants’ remaining
issues. On remand, the Court of Appeals held that
plaintiff’s notice of intent was sufficient as to defendant
Murry, but insufficient as to defendant HVR. However,
the Court of Appeals held that the defective notice of
intent tolled the statute of limitations, and thus dis-
missed without prejudice as to HVR. Potter v McLeary,
278 Mich App 279; 748 NW2d 599 (2008).
In Docket No. 136336, plaintiff appealed the portion
of the Court of Appeals decision that held that the
notice of intent was defective as to HVR, and in Docket
Nos. 136338 and 136339, defendants appealed the por-
tion of the Court of Appeals decision that held that the
defective notice of intent tolled the statute of limita-
tions, and, thus, that a dismissal without prejudice was
appropriate, and the portion that held that the notice of
intent was sufficient as to defendant Murry. In Docket
No. 136336, we granted plaintiff’s application “limited
to the issue whether defendant Huron Valley Radiology,
P.C., is a ‘health facility or agency’ to which a plaintiff is
required to provide notice under MCL 600.2912b(1).”
482 Mich 1004 (2008). In Docket Nos. 136338 and
136339, we held defendants’ application for leave to
appeal in abeyance pending the decision in Docket No.
454 484 M
ICH
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,J.
136336. 756 NW2d 85 (2008).
1
Subsequently, in Docket
No. 136336, we directed the parties to file supplemental
briefs addressing “whether, if a defendant professional
corporation is not an entity to whom notice is required to
be provided under MCL 600.2912b, the applicable statute
of limitations, MCL 600.5805(6), was nonetheless subject
to statutory tolling provided in former MCL 600.5856(d).”
483 Mich 922 (2009).
II. STANDARD OF REVIEW
“Questions of statutory interpretation are questions
of law that this Court reviews de novo.” People v
1
Despite this abeyance, and despite the fact that the parties have not
been given an opportunity to brief or argue the issues raised in defendants’
application for leave to appeal (Docket Nos. 136338 and 136339), or even,
given this Court’s limited grant order, the issue raised in plaintiff’s applica-
tion for leave to appeal (the sufficiency of the notice of intent as to HVR), the
majority addresses the issue raised in plaintiff’s application and one of the
issues raised in defendants’ application (the sufficiency of the notice of
intent as to Murry), and then announces that it is now denying defendants’
application. Only because the majority addresses these issues in its opinion
today do I also address these. Contrary to the majority’s contention, ante at
409, neither one of the parties argued the sufficiency of the notice of intent
in their briefs filed after this Court granted plaintiff’s application limited to
a different issue, and only the plaintiff briefly raised the sufficiency issue at
oral arguments; defendants did not say anything at all regarding the issue
(which was to be expected given that this Court had not granted leave on
that issue). The majority contends that “[d]efendant [HVR] addressed the
sufficiency of the NOI issue extensively in its brief on appeal.” Ante at 409
n 8. However, page one of defendant’s brief states, “This brief concerns the
singular issue of whether Appellee, HVR, is entitled to pre-suit notice
pursuant to MCL 600.2912b(1).” The only mention thereafter regarding the
sufficiency issue is in the “procedural history” section in which defendant
describes its bases for its motion for summary disposition. There is no
discussion of the sufficiency issue in defendant’s “Argument” section of its
brief . Finally, contrary to the majority’s contention, ante at 409 n 8,
defendant’s prayer for relief does not “ask[] us to decide the remaining
issues in plaintiff’s application for leave to appeal.” Instead, defendant
expressly states that “Plaintiff-Appellant’s Application F or Leave T o Appeal
should be denied.”
2009] P
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PINION BY
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ARKMAN
,J.
Swafford, 483 Mich 1, 7; 762 NW2d 902 (2009). A trial
court’s determination regarding a motion for summary
disposition is also reviewed de novo. Odom v Wayne Co,
482 Mich 459, 466; 760 NW2d 217 (2008).
III. ANALYSIS
A. NOTICE OF INTENT
I agree with the majority that HVR was entitled to
a notice of intent. The majority concludes that HVR
was entitled to a notice of intent because “the action
is one sounding in medical malpractice.” Ante at 403.
Although I agree that the action here is “one sound-
ing in medical malpractice,” this is only the first step
in the analysis to determine whether a notice of
intent was required.
MCL 600.2912b(1) provides:
Except as otherwise provided in this section, a person
shall not commence an action alleging medical malpractice
against a health professional or health facility unless the
person has given the health professional or health facility
written notice under this section not less than 182 days
before the action is commenced.
Because § 2912b(1) only applies to an “action alleging
medical malpractice,” the majority is correct that
“the first step in the analysis” is to determine
whether the action is one “alleging medical malprac-
tice.” Ante at 414. It is undisputed that the action at
issue here is such an action, because it “allege[s] an
action that (1) occurred within the course of a pro-
fessional relationship and (2) poses questions of
medical judgment outside the realm of common
knowledge and experience.” Kuznar v Raksha Corp,
481 Mich 169, 176-177; 750 NW2d 121 (2008), citing
456 484 M
ICH
397 [July
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ARKMAN
,J.
Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich
411, 422; 684 NW2d 864 (2004).
2
However, despite the majority’s initial recognition
that whether this action is one “alleging medical mal-
practice” is only the “first step in the analysis” in
determining whether a notice of intent was required,
ante at 414, the majority does not address the second
step. R ather, it concludes that “[b]ecause § 2912b(1)
clearly requires a claimant to provide a timely NOI
before commencing a medical malpractice action, plain-
tiff was required to provide this [professional corpora-
tion] with a timely NOI.” Ante at 419. However,
§ 2912b(1) requires a notice of intent only if: (a) the
action is one “alleging medical malpractice”; and (b) the
defendant is a “health professional or health facility.”
Despite this clear language, the majority does not
address whether HVR is a “health professional or
health facility.”
3
Nevertheless, I believe that HVR is a “health profes-
sional” for the purposes of § 2912b. I reach this conclu-
sion on the basis that plaintiff is seeking to hold HVR
vicariously liable for its employee’s alleged malpractice
and such employee is unquestionably a “health profes-
sional.” In Cox v Flint Bd of Hosp Managers, 467 Mich
1, 11; 651 NW2d 356 (2002), this Court explained that
2
In the instant case, the services provided were unquestionably
professional services rendered by a licensed health care professional, i.e.,
a radiologist, and thus the claims at issue here allege an action that
occurred in the course of a professional relationship. I agree with Justice
Y
OUNG
that HVR is “subject to medical malpractice liability because a
principal sued for the medical malpractice of its agent is sued in medical
malpractice.” Ante at 433 n 5.
3
I agree with Justice Y
OUNG
, ante at 437, 440, that the majority errs in
concluding that HVR is entitled to a notice of intent simply because the
words “professional corporation” can be found in MCL 600.5838a. I also
agree with him, ante at 435, that HVR is not a “health facility” because
it is not a clinical laboratory, a hospital, a nursing home, or any other type
of facility listed in MCL 333.20106(1).
2009] P
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ARKMAN
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under the principle of vicarious liability, “the principal
‘is only liable because the law creates a practical iden-
tity with his [agents]....’”(Citation omitted.) Subse-
quently, in Nippa v Botsford Gen Hosp (On Remand),
257 Mich App 387, 391-392; 668 NW2d 628 (2003), on
remand from this Court for reconsideration in light of
Cox, the Court of Appeals explained:
For all practical purposes the hospital stands in the
shoes of its agents (the doctors).
Thus, we opine that with regard to vicarious liability,
medical-malpractice law applicable to a physician is also
applicable to the physician’s hospital.... All procedural
requirements are applicable to the hospital in the same
manner and form as [they are to] the doctor....Thisisso
because the law creates a practical identity between a
principal and an agent....
...Vicarious liability imposes a legal fiction on defen-
dant hospital providing that the principal is only liable
because the law creates a practical identity with its
agents....Thelawtreats the principal and the agent as
sharing a single identity....
[
4
]
Because, with regard to vicarious liability, “[t]he law
treats the principal and the agent as sharing a single
identity,” and because, in the instant case, plaintiff is
seeking to hold HVR vicariously liable for its employee’s
alleged malpractice, and because such employee is un-
questionably a “health professional” entitled to a notice
of intent, the law treats HVR as also being a “health
professional” entitled to a notice of intent.
5
Therefore,
4
After the Court of Appeals rendered its decision on remand from this
Court, this Court denied leave to appeal. 469 Mich 1005 (2004).
5
Justice Y
OUNG
concludes that the action against HVR is a medical
malpractice action because plaintiff is seeking to hold HVR vicariously
liable for the actions of one of its employees who is a health professional,
but then overlooks vicarious liability in terms of determining whether
HVR is entitled to a notice of intent. Because a medical malpractice
458 484 M
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ARKMAN
,J.
plaintiff was required to provide a notice of intent to
HVR before commencing a medical malpractice action
in accordance with § 2912b.
B. SUFFICIENCY
As discussed above, § 2912b(1) provides, “a person
shall not commence an action alleging medical malprac-
tice against a health professional or health facility
action can only be brought against “ ‘a person or entity who is or who holds
himself or herself out to be a licensed health care professional, licensed
health facility or agency, or an employee or agent of a licensed health facility
or agency’ who is engaging in or otherwise assisting in medical care and
treatment,” Kuznar, 481 Mich at 177, quoting in part MCL 600.5838a(1),
either Justice Y
OUNG
’s position is inconsistent with Kuznar and § 5838a(1)
or it is internally inconsistent. That is, pursuant to Kuznar, Justice Y
OUNG
must determine that HVR is a “health professional” in order to conclude
that this is a medical malpractice action; however, if he were to determine
that HVR is a “health professional” for purposes of concluding that HVR
can be sued for medical malpractice, he could not then also determine that
HVR is not a “health professional” for purposes of concluding that HVR is
not entitled to a notice of intent. It simply cannot be both ways. If HVR is
subject to a medical malpractice action on the basis of vicarious liability,
HVR is entitled to a notice of intent on the basis of vicarious liability.
Contrary to Justice Y
OUNG
’s contention, ante at 437, concluding that HVR is
a “health professional” for purposes of § 2912b because plaintiff is seeking to
hold HVR vicariously liable for the actions of one of its employees who is
unquestionably a “health professional,” is not inconsistent with Kuznar’s
conclusion that the defendant pharmacy in that case was not a “health
professional” because in Kuznar the plaintiff was seeking to hold the
pharmacy vicariously liable for the actions of one of its employees who was
unquestionably not a “health professional.” That is, Kuznar did not involve
the kind of case that we are dealing with here, in which the plaintiff is
seeking to hold the defendant vicariously liable for the actions of its
employee, who is unquestionably a “health professional.” Indeed, Justice
Y
OUNG
’s position is inconsistent with prior caselaw. See, for example, Roberts
I, 466 Mich at 59, and Roberts II, 470 Mich at 693, in which this Court held
(in thoughtful opinions authored by Justice Y
OUNG
) that because the
plaintiff’s notice of intent was defective as to the professional corporation,
the statute of limitations was not tolled. Why would it matter that the notice
of intent was defective as to the professional corporation if a professional
corporation is never entitled to a notice of intent in the first place?
2009] P
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unless the person has given the health professional or
health facility written notice under this section not less
than 182 days before the action is commenced.” (Em-
phasis added.) MCL 600.2912b(4) provides:
The notice given to a health professional or health
facility under this section shall contain a statement of at
least all of the following:
(a) The factual basis for the claim.
(b) The applicable standard of practice or care alleged by
the claimant.
(c) The manner in which it is claimed that the applicable
standard of practice or care was breached by the health
professional or health facility.
(d) The alleged action that should have been taken to
achieve compliance with the alleged standard of practice or
care.
(e) The manner in which it is alleged the breach of the
standard of practice or care was the proximate cause of the
injury claimed in the notice.
(f) The names of all health professionals and health
facilities the claimant is notifying under this section in
relation to the claim. [Emphasis added.]
In Roberts II, 470 Mich at 700-701, this Court ex-
plained:
Under MCL 600.2912b(4), a medical malpractice claim-
ant is required to provide potential defendants with notice
that includes a “statement” of each of the statutorily
enumerated categories of information. Although it is rea-
sonable to expect that some of the particulars of the
information supplied by the claimant will evolve as discov-
ery and litigation proceed, the claimant is required to...
provide details that are responsive to the information
sought by the statute and that are as particularized as is
consistent with the early notice stage of the proceed-
ings....Thisisnotanonerous task: all the claimant must
do is specify what it is that she is claiming under each of
460 484 M
ICH
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the enumerated categories in § 2912b(4). Although there is
no one method or format in which a claimant must set
forth the required information, that information must,
nevertheless, be specifically identified in an ascertainable
manner within the notice. [Emphasis in the original.]
In Roberts II, the plaintiff brought a medical malprac-
tice action against a hospital, a professional corpora-
tion, an obstetrician, a physician’s assistant, and an
emergency room physician. This Court held that the
plaintiff must “aver the specific standard of care that
she is claiming to be applicable to each particular
professional or facility that is named in the notice.” Id.
at 692 (emphasis in the original). Because the notice of
intent “fail[ed] to indicate whether plaintiff was alleg-
ing that these defendants [the hospital and professional
corporation] were vicariously or directly liable to her,”
the plaintiff’s notice of intent failed to allege “a stan-
dard specifically applicable to the defendant facili-
ties....” Id. at 693. For this reason, Roberts II held
that the notice of intent was insufficient as to the
defendant hospital and the defendant professional cor-
poration.
In the instant case, the Court of Appeals similarly held
that the notice of intent was insufficient as to HVR
because it did not state the applicable standard of practice
or care as is required by § 2912b(4) through (b).
6
I agree.
The notice of intent completely fails to indicate what
standard of practice or care plaintiff believes is appli-
6
Defendant Murry argues that the notice of intent does not satisfy the
requirements set forth in § 2912b(4)(b) through (d). Although I agree
with the majority that the notice of intent is sufficient as to defendant
Murry, I cannot say that I agree with the majority’s analysis because it
provides none. In my judgment, the notice of intent does satisfy
§ 2912b(4)(b) because it states, “The standard of care required Dr.[]
Murry...tocorrectly read, interpret and report the correct results to the
emergency room under the circumstances.” In addition, the notice of intent
does satisfy § 2912b(4)(c) and (d) because it states that defendant Murry
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cable to defendant HVR, and it does not indicate
whether plaintiff is alleging that defendant HVR is
directly or vicariously liable to him. Indeed, as the
Court of Appeals held, “[t]he standard of care com-
pletely fails to make any reference to defendant Huron
Valley Radiology.” Potter, 278 Mich App at 284. In fact,
the notice of intent as a whole only references HVR
twice: once on the first page where it lists the health
care professionals and entities to whom the notice of
intent is intended to apply, and then again on the last
page, where it lists the health care professionals and
entities being notified of the action. Because the notice
of intent does not contain a statement indicating what
standard of practice or care is allegedly applicable to
HVR, as is required by § 2912b(4)(b), I agree with the
Court of Appeals that the notice of intent is insufficient
as to defendant HVR.
Although the majority “question[s] whether Roberts
II was correctly decided,” ante at 424 n 32,
7
it does not
expressly overrule Roberts II because it concludes that
this decision is not “dispositive.” It is not dispositive,
“failed to properly interpret the MRI images and convey accurate
information to the emergency room physicians in charge of the patient
that night.”
7
Specifically, the majority “question[s] whether Roberts II was cor-
rectly decided because it adds a requirement not found in the language of
the statute; namely, that statements be ‘particularized.’ ” Ante at 424 n
32. Despite the fact then that § 2912b(1) clearly requires a notice of
intent to be sent to each defendant, and § 2912b(4) clearly requires the
notice of intent to contain certain statements, the majority apparently
would prefer to conclude that the notice of intent is not required to
contain each of these statements as to each defendant. For example, the
majority apparently would hold that if a plaintiff sues both a nurse and
a physician for their own direct malpractice, as long as the notice of
intent contains the required “applicable standard of practice or care
statement” as to the nurse, the notice would be sufficient as to the
physician as well. Fortunately, the majority leaves this issue for another
day, one that hopefully will not arrive soon.
462 484 M
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says the majority, because “Roberts II opined that
because there was confusion with regard to whether the
claim was for direct or vicarious liability, the [profes-
sional corporation] was unable to understand the na-
ture of the claims being asserted,” but, “[i]n the case
before us, no such potential for confusion exists....”
Ante at 424 n 32. First, that is not what Roberts II held;
rather, it held, 470 Mich at 693, 702, that because the
plaintiff’s notice of intent did not include a statement
“indicat[ing] whether plaintiff was alleging that these
defendants were vicariously or directly liable to her,”
“plaintiff did not fulfill her obligation under
§ 2912b....”Second, as with Roberts II, a “potential
for confusion,” ante at 424 n 32, does exist here because
HVR could be sued on the basis of either direct or
vicarious liability, or both, and the notice of intent does
not indicate on which basis plaintiff intended to sue
HVR.
Furthermore, that Roberts II involved a situation in
which the notice of intent may have implied that the
plaintiff was seeking to hold the defendants directly
liable, while the complaint implied that the plaintiff was
seeking to hold the defendants vicariously liable,
whereas in the instant case nothing can be implied from
plaintiff’s notice of intent regarding direct or vicarious
liability, while the complaint seeks to hold HVR vicari-
ously liable, is a distinction utterly without any signifi-
cance in this case. The issue here is whether the notice
of intent was sufficient as to HVR. Being a professional
corporation, HVR could be sued on the basis of either
direct liability or vicarious liability. See Cox, 467 Mich
at 11, stating that “[a] hospital may be 1) directly liable
for malpractice, through claims of negligence in super-
vision of staff physicians as well as selection and reten-
tion of medical staff, or 2) vicariously liable for the
negligence of its agents.” MCL 600.2912b(4)(b) requires
the notice of intent to contain a statement of “[t]he
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applicable standard of practice or care alleged by the
claimant.” Obviously, the “applicable standard of prac-
tice or care” would depend on whether the claimant is
suing the professional corporation on the basis of direct
liability or vicarious liability. Accordingly, a notice of
intent must indicate whether the claimant is suing the
professional corporation on the basis of direct liability,
vicarious liability, or both.
The majority holds that “when vicarious liability is
the only claim asserted,” it is unnecessary to “specifi-
cally set forth the legal theory of vicarious liability
within the [notice of intent].” Ante at 422. However, if
the notice of intent does not indicate that the plaintiff is
planning on suing the defendant professional corpora-
tion on the basis of vicarious liability, how will the
defendant know that “vicarious liability is the only
claim asserted”? The majority fails to recognize that the
whole point of the exercise of a notice of intent is to
apprise the defendant of the claims that the plaintiff
plans to bring before a complaint is filed. Here, because
the notice of intent was silent on the subject, HVR did
not know until plaintiff filed his complaint that plaintiff
was suing on the basis of vicarious liability. That is,
HVR did not know what “standard of practice or care”
plaintiff was alleging that HVR breached until plaintiff
filed his complaint against HVR. This is most clearly a
violation of § 2912b(4)(b).
8
8
The majority concludes that HVR’s claim that plaintiff’s notice of
intent was defective because it did not indicate whether plaintiff was
planning on suing HVR on the basis of direct or vicarious liability is
“troubling” because HVR “openly admits knowing and understanding
that it is vicariously liable for the actions of its employee, Dr. Murry.”
Ante at 423. What I find to be “troubling” instead is that the majority
ignores the significant distinction between (a) knowing and understand-
ing that a professional corporation may be held vicariously liable for the
actions of its employees; and (b) knowing and understanding that
someone is planning on bringing a cause of action against the profes-
464 484 M
ICH
397 [July
O
PINION BY
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ARKMAN
,J.
The majority misunderstands the issue. Contrary to
its contention, ante at 425, the issue is not whether
HVR “could reasonably be held to comprehend the
nature of the claims being asserted against it.” Instead,
as Justice Y
OUNG
explains, ante at 446-447, the issue is
whether the notice of intent “ ‘provide[s] details that
are responsive to the information sought by the stat-
ute....’” Ante at 446-447, quoting Roberts II, 470
Mich at 701 (emphasis in the original). More specifi-
cally, the issue here is whether the notice of intent
contains a statement of “[t]he applicable standard of
practice or care alleged by the claimant,” as is required
by § 2912b(4)(b). Boodt v Borgess Med Ctr, 481 Mich
558, 560-561; 751 NW2d 44 (2008) (“Although the
instant notice of intent may conceivably have apprised
[defendant] of the nature and gravamen of plaintiff’s
allegations, this is not the statutory standard;
§ 2912b(4)[b] requires something more.”). Because the
notice of intent at issue here did not contain a state-
ment of the “applicable standard of practice or care”
with regard to HVR, the notice of intent did not comply
with § 2912b(4)(b).
9
sional corporation to hold that corporation vicariously liable for the
actions of its employees. The majority erroneously equates knowledge of
potential liability with knowledge of an imminent lawsuit.
9
Although neither the parties nor the lower courts addressed this
issue, the majority concludes that § 2912b does not “require[] a claimant
to set forth the nature of the relationship between the parties to be sued.”
Ante at 421. While I agree with the majority, ante at 421 n 28, that the
notice need not allege the “precise nature of the relationship,” i.e.,
whether there is an “actual employment relationship with the [profes-
sional corporation] or . . . a complex independent contractor arrangement,”
the majority fails to recognize that § 2912b(4)(a) does require the notice of
intent to contain a statement of the “factual basis for the claim.” In this case,
plaintiff sued multiple physicians, multiple professional corporations, and a
hospital. Yet, plaintiff’s notice of intent nowhere includes a “factual basis for
the claim” against HVR. That is, the notice of intent does not even indicate
that the reason that HVR is being sued is because HVR is where Murry was
working at during the time of the alleged malpractice. Because
2009] P
OTTER V
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PINION BY
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ARKMAN
,J.
C. TOLLING
The period of limitations in medical malpractice
cases is two years. MCL 600.5805(6). At the time the
complaint was filed in this case, MCL 600.5856, in
pertinent part, provided:
The statutes of limitations or repose are tolled:
***
(d) If, during the applicable notice period under section
2912b, a claim would be barred by the statute of limitations
or repose, for not longer than a number of days equal to the
number of days in the applicable notice period after the
date notice is given in compliance with section 2912b.
[Emphasis added.]
[
10
]
§ 2912b(4)(a) requires the notice of intent to include the “factual basis for
the claim,” and the notice of intent at issue here did not include the fact
that Murry was working at HVR at the time of the alleged malpractice,
which, indeed, is one of the most important facts in a case in which the
claim is based on vicarious liability, I also agree with Justice Y
OUNG
, ante
at 447, that plaintiff’s notice of intent fails to satisfy § 2912b(4)(a).
Contrary to the majority, ante at 422 n 29, summarily naming “Huron
Valley Radiology as well as the three individual physicians and ‘their
employees or agents, actual or ostensible, thereof’ ” in the notice of intent
does not indicate what the “factual basis for the claim” is. Because I
believe that the notice of intent does not satisfy the requirements set
forth in § 2912b(4)(a) and (b), there is no need to address whether the
notice of intent satisfies the other requirements of § 2912b(4), and the
only reason that I even address § 2912b(4)(a) is to respond to the
majority’s incorrect conclusion that § 2912b(4) does not “require[] a
claimant to set forth the nature of the relationship between the parties to
be sued.” Ante at 421.
10
The Legislature has since amended § 5856. However, because plain-
tiff’s complaint was filed (on November 4, 2003) before the effective date
of this amendment (April 22, 2004), it has no effect on the instant case.
See 2004 PA 87, enacting section 1(1) (“[T]his amendatory act applies to
civil actions filed on or after the effective date of this amendatory act.”).
For a discussion of the amended version of § 5856, see Bush v Shabahang,
484 Mich 156, 189-193; 772 NW2d 272 (2009). (M
ARKMAN
, J., dissenting).
466 484 M
ICH
397 [July
O
PINION BY
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ARKMAN
,J.
In Roberts I, 466 Mich at 59, this Court held that “the
statute of limitations cannot be tolled under MCL
600.5856(d) unless notice is given in compliance with all
the provisions of MCL 600.2912b.”
11
As Roberts I, 466
Mich at 64, explained, “Section 5856(d) clearly provides
that notice must be compliant with § 2912b....”“Asa
result, the tolling of the statute of limitations is avail-
able to a plaintiff only if all the requirements included
in § 2912b are met.” Section 2912b(4) states that the
notice of intent “shall contain a statement of at least all
of the following....” (Emphasis added.) The term
“shall” “denote[s] a mandatory, rather than discretion-
ary action.” Roberts I, 466 Mich at 65. The term “all”
exemplifies that each and every one of the statements
required by § 2912b(4)(a) through (f) must be contained
in the notice of intent. Therefore, only a notice of intent
that is “in compliance with section 2912b” tolls the
statute of limitations and a notice of intent must
contain all of the statements required by § 2912b(a)
through (f) in order to be “in compliance with section
2912b.”
Because, as discussed earlier, the notice of intent in
this case does not contain the statements required by
§ 2912b(4)(a) and (b) with regard to HVR, it is not “in
compliance with section 2912b.” Because the notice of
intent is not “in compliance with section 2912b,” the
notice of intent does not toll the statute of limitations.
And because the period of limitations in a medical
malpractice action is two years, MCL 600.5805(6), and
the alleged malpractice in this case occurred on June 7,
2001, and the complaint was not filed until November 4,
11
This portion of Roberts I was decided unanimously with even the
dissenting justices agreeing that “to begin the tolling of the...statute of
limitations, a plaintiff must fully comply with the requirements of MCL
600.2912b. Compliance with the delivery provision of the notice statute
alone is insufficient.” Roberts I, 466 Mich at 72 (K
ELLY
, J., dissenting).
2009] P
OTTER V
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L
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PINION BY
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ARKMAN
,J.
2003, the complaint was untimely filed, and the action
against HVR is barred by the statute of limitations.
Therefore, the action against HVR should be dismissed
with prejudice.
The Court of Appeals relied on Kirkaldy v Rim, 478
Mich 581; 734 NW2d 201 (2007), to support its conclu-
sion that a defective notice of intent tolls the statute of
limitations, and thus a dismissal without prejudice is
appropriate. However, this case is significantly distin-
guishable from Kirkaldy.InKirkaldy, 478 Mich at 586,
this Court held that the filing of a complaint and a
defective affidavit of merit tolls the statute of limita-
tions until the affidavit of merit is successfully chal-
lenged. This is so because nothing in MCL 600.5856(a),
which provides for tolling upon the filing of a com-
plaint,
12
or MCL 600.2912d, which requires an affidavit
of merit to be filed with a complaint,
13
limits tolling to
an affidavit that is in compliance with § 2912d. How-
ever, § 5856(d) does limit tolling to a notice of intent
that is “in compliance with section 2912b.” Therefore,
12
The amended version of MCL 600.5856 provides, in pertinent part:
The statutes of limitations or repose are tolled in any of the
following circumstances:
(a) At the time the complaint is filed, if a copy of the summons
and complaint are served on the defendant within the time set
forth in the supreme court rules.
13
MCL 600.2912d(1) provides, in pertinent part:
[T]he plaintiff in an action alleging medical malpractice or, if
the plaintiff is represented by an attorney, the plaintiff’s attorney
shall file with the complaint an affidavit of merit signed by a
health professional who the plaintiff’s attorney reasonably be-
lieves meets the requirements for an expert witness under [MCL
600.2169]. The affidavit of merit shall certify that the health
professional has reviewed the notice and all medical records
supplied to him or her by the plaintiff’s attorney concerning the
allegations contained in the notice and shall contain a statement of
eachofthefollowing....
468 484 M
ICH
397 [July
O
PINION BY
M
ARKMAN
,J.
while the filing of a complaint and a defective affidavit
of merit may toll the statute of limitations, the serving
of a defective notice of intent does not.
Justice Y
OUNG
contends that the statute of limita-
tions was tolled with regard to HVR because, although
the notice of intent was insufficient as to HVR, it was
sufficient as to defendant Murry. That is, he concludes
that as long as a notice of intent is sufficient as to one of
the defendants, the statute of limitations is tolled as to
all of the defendants. I respectfully disagree.
As discussed above, § 5856 provided at the time of the
filing of the complaint, in pertinent part:
The statutes of limitations or repose are tolled:
***
(d) If during the applicable notice period under section
2912b, a claim would be barred by the statute of limitations
or repose, for not longer than a number of days equal to the
number of days in the applicable notice period after the
date notice is given in compliance with section 2912b.
[Emphasis added.]
Justice Y
OUNG
is correct that § 5856 does indicate that
“more than one statute of limitations can be
tolled....”Ante at 442. For example, if multiple defen-
dants receive a notice of intent that is sufficient as to all
of them, all of their statutes of limitations are tolled.
However, this does not mean that “more than one
statute of limitations” is always tolled. Obviously, if
there is only one defendant, only one statute of limita-
tions would be tolled, and such a conclusion is not
contrary to the reference in § 5856 to the “statutes of
limitations.” See MCL 8.3b, which provides that “every
word importing the plural number may be applied and
limited to the singular number.” Similarly, concluding
that a notice of intent only tolls the statute of limita-
2009] P
OTTER V
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ARKMAN
,J.
tions that applies to the defendant who has actually
received a sufficient notice of intent, but not the statute
of limitations that applies to the defendant who has not
received such a notice, is also not inconsistent with the
reference in § 5856 to the “statutes of limitations.”
Further, such a conclusion is required by the reference
in § 5856(d) to “the applicable notice period under
section 2912b,” and “the applicable notice period after
the date notice is given in compliance with section
2912b,” because there is no “applicable notice period
under section 2912b,” if the notice of intent is not “in
compliance with section 2912b.”
As discussed earlier, § 2912b states, in pertinent part:
(1) Except as otherwise provided in this section, a
person shall not commence an action alleging medical
malpractice against a health professional or health facility
unless the person has given the health professional or
health facility written notice under this section not less
than 182 days before the action is commenced.
***
(4) The notice given to a health professional or health
facility under this section shall contain a statement of at
least all of the following....
Accordingly, as this Court held in Roberts I, 466 Mich at
64, a notice of intent only tolls the statute of limitations
if the notice contains all the statements required by
§ 2912b(4). In addition, as this Court held in Roberts II,
470 Mich at 692, the notice of intent must contain all of
the statements required by § 2912b(4) as to “each
particular [defendant] named in the notice.” (Emphasis
added.) That is, the notice of intent only tolls the
statute of limitations as to each particular defendant if
the notice contains all the statements required by
§ 2912b(4) as to each particular defendant. Thus, if a
470 484 M
ICH
397 [July
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PINION BY
M
ARKMAN
,J.
notice of intent contains all the required statements as
to the defendant physician, but does not contain all the
required statements as to the defendant professional
corporation, the statute of limitations would only be
tolled as to the defendant physician because a notice “in
compliance with section 2912b” has not been served on
the defendant professional corporation and thus there
is no “applicable notice period” as to the defendant
professional corporation.
Contrary to Justice Y
OUNG
’s contention, § 5856(d)’s
reference to “a claim” does not alter the outcome.
14
The
language “a claim” must be read in context. To which
“claim” is § 5856(d) referring? When § 5856(d) is read
in its entirety, it is clear that the “claim” to which it is
referring is the “claim” that “would be barred by the
statute of limitations” “during the applicable notice
period under section 2912b.” However, “a claim” would
14
Although Justice Y
OUNG
relies on the language “a claim,” this same
language is found in the amended version of § 5856, and yet he recognizes
that, under the amended version, the notice of intent has to be sufficient
as to all the defendants in order to toll all their statutes of limitations. See
ante at 443-444. In light of his view that a professional corporation that
is not a “health facility” is not entitled to a notice of intent, combined
with his view that the amended version of § 5856 only tolls the statute of
limitations if the defendant has received a sufficient notice of intent,
Justice Y
OUNG
apparently would conclude that a notice of intent that is
sufficient as to the defendant physician would toll the statute of limita-
tions as to the defendant physician, but would not toll the statute of
limitations as to the defendant professional corporation. Under this view,
a plaintiff would have to serve the defendant physician with a notice of
intent and wait 182 days to file suit against the defendant physician, but
the plaintiff would have to go ahead and file suit against the defendant
professional corporation before the period of limitations expired as to
that corporation since the corporation would not be entitled to notice of
intent tolling. Therefore, the plaintiff would have to file his medical
malpractice action against the professional corporation before he filed a
medical malpractice action against the physician, if the period of limita-
tions would have expired within 182 days after the plaintiff served his
notice of intent on the physician.
2009] P
OTTER V
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C
L
EARY
471
O
PINION BY
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ARKMAN
,J.
not be “barred by the statute of limitations” “during
the applicable notice period under section 2912b” where
a sufficient notice of intent had not yet been served
upon the defendant. Where a sufficient notice of intent
had not yet been served upon the defendant, there
would be no “applicable notice period under section
2912b” and, thus, there would be no claim that would
be “barred by the statute of limitations” “during the
applicable notice period.”
15
Because I believe that “a
claim” in § 5856(d) is referring to “a claim” that would
be “barred by the statute of limitations” “during the
applicable notice period,” and the claim against HVR
would not have been “barred by the statute of limita-
tions” “during the applicable notice period” (because
there was no “applicable notice period”), I conclude that
the statute of limitations was not tolled as to plaintiff’s
claim against HVR.
16
Moreover, under Justice Y
OUNG
’s analysis, although
HVR is not even entitled to a notice of intent because it
is a professional corporation, he would hold that under
§ 5856(d) a notice of intent that does not comply with
§ 2912b tolls the statute of limitations applicable to
15
For further discussion of this point, see my dissenting opinion in
Bush, 484 Mich at 192-193.
16
Justice Y
OUNG
concludes that “there is no textual basis for restricting
tolling to a single claim.” Ante at 442-443. However, under his interpre-
tation, there would also seem to be no basis to limit tolling to only those
claims relating to the plaintiff’s medical malpractice action. In other
words, the statutes of limitations for all claims against all defendants in
Michigan would seem to be tolled as long as one plaintiff files a proper
notice of intent with one defendant. This could hardly have been the
intent of the Legislature. Contrary to Justice Y
OUNG
’s contention, ante at
443 n 24, there is a “textual basis for treating subsection (d) of the tolling
statute differently than subsection (a) through (c) of the tolling statute.”
That is, as discussed above, subsection (d), unlike subsections (a) through
(c), limits tolling to “a claim [that] would be barred by the statute of
limitations” “during the applicable notice period” if it were not for the
“notice [that] is given in compliance with section 2912b.”
472 484 M
ICH
397 [July
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PINION BY
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ARKMAN
,J.
HVR. That is, he concludes that, although HVR is not
entitled to a notice of intent, plaintiff still gets the
benefit of notice of intent tolling. This conclusion, in
which the defendant is denied the benefit of a notice of
intent, and yet the plaintiff is afforded the benefit of an
extended period of limitations, is illogical and inconsis-
tent with the statute.
17
The whole reason for providing
a plaintiff with notice of intent tolling is to compensate
for the fact that he or she must file a notice of intent 182
days before filing a complaint. If, however, a plaintiff
does not have to file a notice of intent and then wait 182
days before filing a complaint, why should the plaintiff
be afforded 182 more days in which to file the com-
plaint?
Justice Y
OUNG
observes that the “majority’s analysis
threatens to render the statutory notice procedure
nugatory and undermines, if not overrules, this Court’s
precedent,” ante at 432, and that it “threatens to
deprive a named defendant of the notice that the
statutory procedure is designed to provide,” ante at 450.
Although I agree with these observations, I believe that
the same possibly can be said of Justice Y
OUNG
’s own
analysis.
18
He concludes that a notice of intent that is
sufficient as to one defendant tolls the statute of limi-
tations for all the defendants, regardless of how defec-
17
For the same reason that a notice of intent that does not comply with
§ 2912b does not toll the statute of limitations, a notice of intent that is
not required by § 2912b does not toll the statute of limitations. That is,
if a plaintiff serves a defendant with a notice of intent that is not required
by § 2912b, notice is not “given in compliance with section 2912b,” the
plaintiff does not have to wait 182 days to file his or her complaint, i.e.,
there is no “applicable notice period under section 2912b,” and thus
notice of intent tolling under § 5856(d) is not applicable.
18
The saving grace of Justice Y
OUNG
’s analysis with regard to tolling is
that it apparently would only apply to the former version of § 5856 that
is at issue, not to the amended version that is applicable to all actions
filed after April 22, 2004. See ante at 444.
2009] P
OTTER V
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L
EARY
473
O
PINION BY
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ARKMAN
,J.
tive the notice of intent is as to these other defendants
or whether these other defendants were even entitled to
a notice of intent in the first place. That is, although
§ 2912b(4) and Roberts II clearly require the plaintiff to
provide all defendants with a notice of intent that is
sufficient as to each, and although § 5856(d) and Rob-
erts I clearly limit tolling to notices that are “given in
compliance with section 2912b,” Justice Y
OUNG
con-
cludes that a notice of intent that is clearly not “in
compliance with section 2912b” as to multiple defen-
dants nevertheless tolls the statute of limitations as to
these defendants as long as at least one defendant is
given a notice of intent that is “in compliance with
section 2912b.” How are other defendants to receive the
“notice that the statutory procedure is designed to
provide”?
19
19
Justice Y
OUNG
contends that “a plaintiff’s failure to provide a
defendant with a sufficient [notice of intent] still entitles that defendant
to dismissal, tolling notwithstanding.” Ante at 443 n 25. However, this
interpretation would seem to create a trap for unwary plaintiffs because
MCL 600.2912b(6) prohibits the “tacking or addition of successive
182-day periods....”AsthisCourt explained in Mayberry v Gen Ortho-
pedics, PC, 474 Mich 1, 3; 704 NW2d 69 (2005), “Section 2912b(6)
prohibits a plaintiff from giving presuit notice to a defendant multiple
times in order to initiate multiple tolling periods that repeatedly extend
the period of limitations.” Accordingly, if a notice that was filed within
182 days before the period of limitations would have expired and that is
sufficient as to the defendant physician but defective as to the defendant
hospital tolls the statute of limitations as to both, and § 2912b requires
dismissal as to the hospital (as a result of the defective notice), the
plaintiff’s next notice sent to the hospital would not toll the statute of
limitations (as a result of § 2912b[6]), and thus the plaintiff’s action
against the hospital would then be barred by the statute of limitations
(since there would be no way for the plaintiff to file a sufficient notice and
then wait 182 days to file suit against the hospital without the benefit of
another 182-day tolling period). That is, what Justice Y
OUNG
gives with
one hand (defective notice tolls), he takes away with the other hand
(defective notice requires dismissal and plaintiff cannot refile). Assuming
that Justice Y
OUNG
’s response to this conundrum is that the original
complaint tolls the statute of limitations applicable to the hospital, under
474 484 M
ICH
397 [July
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PINION BY
M
ARKMAN
,J.
D. RETROACTIVE AMENDMENTS
Although the majority does not address this issue
because it concludes that the notice of intent is suffi-
cient, in Bush v Shabahang, 484 Mich 156, 181 n 44;
772 NW2d 272 (2009), the majority concludes that,
pursuant to MCL 600.2301, a plaintiff can simply
amend a defective notice of intent and such amendment
will “relate back to the time that the original [notice of
intent] was mailed” or the courts alternatively can
simply “disregard any error or defect” in the notice of
intent. I respectfully disagree. See Bush, 484 Mich at
194-195 (M
ARKMAN
, J., dissenting). MCL 600.2301 pro-
vides:
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. [Emphasis added.]
As this Court explained in Boodt, 481 Mich at 563 n 4,
“§ 2301 only applies to pending actions.” As discussed
above, § 2912b(1) provides, “a person shall not com-
mence an action alleging medical malpractice against a
health professional or health facility unless the person
§ 5856(a) (although the complaint has been dismissed against the hospi-
tal), he would then create a situation in which a plaintiff would have
absolutely no incentive to file a notice that complies with § 2912b as to
the hospital or any other defendant as long as he files a notice that
complies with § 2912b as to one defendant, because the statute of
limitations would presumably be tolled indefinitely by the complaint that
has not been dismissed. The plaintiff would then apparently have an
unlimited period of time in which to file a sufficient notice and to refile
the complaint against the remaining defendants (or at least until all the
claims were dismissed or otherwise adjudicated).
2009] P
OTTER V
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PINION BY
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ARKMAN
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has given the health professional or health facility written
notice under this section not less than 182 days before the
action is commenced.” (Emphasis added.) Section
2912b(4) states that the “notice given to a health profes-
sional or health facility under this section shall contain a
statement of at least all of the following ....”(Emphasis
added.) Therefore, as we explained in Boodt, 481 Mich at
562-563, “a plaintiff cannot commence an action before he
or she files a notice of intent that contains all the infor-
mation required under § 2912b(4).”
20
Because plaintiff’s
notice of intent here did not contain all the information
required under § 2912b(4) as to HVR, plaintiff could not
have commenced a medical malpractice action against
HVR.
21
Therefore, § 2301 is inapplicable, and plaintiff
cannot retroactively amend the notice of intent and the
courts cannot “disregard any error or defect” in the
notice of intent.
E. MAJORITY PROCEDURES
As noted inn1ofthis opinion, the majority addresses
issues that are not even properly before it. In Docket
No. 136336, plaintiff appealed the portion of the Court
of Appeals decision that held that the notice of intent
was defective as to HVR, and in Docket Nos. 136338 and
20
For further discussion of Boodt, see my dissenting opinion in Bush,
484 Mich at 195, 199-200.
21
In Bush, 484 Mich 170 n 26, the majority mischaracterized Boodt as
holding that “because no tolling was afforded in the presence of a defect
pursuant to § 5856(d), the plaintiff’s action was not commenced under
§ 2912b(1).” However, it was not the lack of tolling that prevented the
plaintiff’s action from commencing, it was the lack of a notice of intent in
compliance with § 2912b. See § 2912b(1) and (4) (“[A] person shall not
commence an action alleging medical malpractice...unless the person
hasgiven...written notice...[that]contain[s]astatementofatleast
all of the following....”).
476 484 M
ICH
397 [July
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PINION BY
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ARKMAN
,J.
136339, defendants appealed the portion of the decision
that held that the defective notice of intent tolled the
statute of limitations, and thus that a dismissal without
prejudice was appropriate, and the portion that held
that the notice of intent was sufficient as to defendant
Murry. In Docket No. 136336, we granted plaintiff’s
application “limited to the issue whether defendant
Huron Valley Radiology, P.C., is a ‘health facility or
agency’ to which a plaintiff is required to provide notice
under MCL 600.2912b(1).” 482 Mich 1004 (2008) (em-
phasis added). In Docket Nos. 136338 and 136339, we
held defendants’ application in abeyance for plaintiff’s
application. 756 NW2d 85 (2008). Subsequently, in
Docket No. 136336, we directed the parties to file briefs
addressing “whether, if a defendant professional corpo-
ration is not an entity to whom notice is required to be
provided under MCL 600.2912b, the applicable statute
of limitations, MCL 600.5805(6), was nonetheless sub-
ject to statutory tolling provided in former MCL
600.5856(d).” 483 Mich 922 (2009). However, we never
asked the parties to address the sufficiency of the notice
of intent as to either HVR or Murry. As a result, the
parties did not, in fact, brief or argue these issues. See
n 1 of this opinion.
Thus, despite the fact that the parties have not had
an opportunity to brief or argue these issues, and,
indeed, despite the fact that the issue regarding the
sufficiency of the notice of intent as to defendant Murry
has been formally abeyed, the majority nonetheless
addresses these issues and implicitly overrules Roberts
II in the process.
22
The majority implicitly overrules
22
“The Court shall not issue any peremptory order unless it is signed
by five Justices, except where a majority of Justices conclude that
emergency circumstances warrant the issuance of such an order.” Min-
utes of the Conference on Administrative Matters, Item 2, 2003-31,
Internal Rules, July 24, 2003. The majority violates this rule by reversing
2009] P
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PINION BY
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ARKMAN
,J.
Roberts II by refusing to follow its holdings: (a) that a
notice of intent must indicate whether the plaintiff is
seeking to hold the defendant professional corporation
vicariously or directly liable, and instead holding that as
long as the plaintiff is only going to sue the defendant
on the basis of vicarious liability it does not have to
indicate this in the notice of intent; and (b) that a notice
of intent must contain all the statements required by
§ 2912b(4), and instead holding that a notice of intent is
sufficient as long as the defendant “could reasonably be
held to comprehend the nature of the claims being
asserted against it.” Ante at 425. The majority does this
without so much as a mention of stare decisis. What
happened to the view that “[t]he Michigan Supreme
Court should not alter the precedent...without first
hearing oral argument and inviting briefing on it”?
Scott v State Farm Mut Auto Ins Co, 482 Mich 1074,
1076-1077 (2008) (K
ELLY
, J., dissenting). What hap-
pened to the view that by “fail[ing] to comprehend how
the skilled advocates in this case could have added
anything insightful in the debate over the proper inter-
pretation of...precedent...themajority undermines
the foundations of our adversarial system”? Mack v
Detroit, 467 Mich 186, 223; 649 NW2d 47 (2002)
(C
AVANAGH
, J., dissenting). Apparently, these views
are only pertinent where precedents with which the
majority agrees are at stake.
23
the Court of Appeals on the issue of the sufficiency of the notice of intent
as to defendant HVR without briefing or oral argument, and without the
requisite five votes, because, although this issue was raised in plaintiff’s
application for leave to appeal, we granted leave to appeal only as to a
different issue.
23
For further discussion on the subject of the majority and stare decisis
see Petersen v Magna Corp, 484 Mich 300, 388-396; 773 NW2d 564 (2009)
(M
ARKMAN
, J., dissenting), and Rowland v Washtenaw Co Rd Comm, 477
Mich 197, 223-247; 731 NW2d 41 (2007) (M
ARKMAN
, J., concurring).
478 484 M
ICH
397 [July
O
PINION BY
M
ARKMAN
,J.
To summarize my concerns with the majority opin-
Increasingly, the same regard for precedent evidenced in this case
towards Roberts II by the majority, see 462-463 of this opinion, has been
reflected toward other disfavored and inconvenient precedents: they are
simply ignored. For illustrations of this phenomenon, see e.g., Vanslem-
brouck v Halperin, 483 Mich 965 (2009), in which the new majority
ignored Vega v Lakeland Hosps, 479 Mich 243, 244; 736 NW2d 561
(2007); Hardacre v Saginaw Vascular Services, PC, 483 Mich 918 (2009),
in which it failed to follow Boodt, 481 Mich 558; Sazima v Shepherd Bar
& Restaurant, 483 Mich 924 (2009), in which it failed to follow Chrysler
v Blue Arrow Transport Lines, 295 Mich 606; 295 NW 331 (1940), and
Camburn v Northwest School Dist (After Remand), 459 Mich 471; 592
NW2d 46 (1999); Juarez v Holbrook, 483 Mich 970 (2009), in which it
failed to follow Smith v Khouri, 481 Mich 519; 751 NW2d 472 (2008);
Beasley v Michigan, 483 Mich 1025 (2009), in which the majority failed to
follow Rowland v Washtenaw Co Rd Comm, 477 Mich 197; 731 NW2d 41
(2007); Scott v State Farm Mut Auto Ins Co, 483 Mich 1032 (2009), in
which the majority failed to enforce Thornton v Allstate Ins Co, 425 Mich
643; 391 NW2d 320 (1986), and Putkamer v Transamerica Ins Corp of
America, 454 Mich 626; 563 NW2d 683 (1997); and Chambers v Wayne Co
Airport Auth, 483 Mich 1081 (2009), in which the majority again failed to
abide by Rowland.
Chief Justice K
ELLY
contends that “the accusation that the Court has
been ignoring precedent is incorrect.” Ante at 429. As Justice C
ORRIGAN
explained in Beasley, 483 Mich at 1029-1030 (C
ORRIGAN
, J., dissenting), in
response to this same contention:
Chief Justice K
ELLY
attempts to explain away the new majori-
ty’s actions by sharing her views regarding the prior caselaw that
the new majority has otherwise chosen to ignore. But Chief Justice
K
ELLY
’s interpretation of a prior case in a concurring statement is
not a decision of the Court. More importantly, her argument
overlooks the fundamental problem: the new majority’s continu-
ing failure to explain its apparent disregard of this Court’s
precedent undermines the predictability and stability of the rule of
law.
***
[T]he new majority offers no articulable reasons whatsoever for
its apparent detours from stare decisis. Instead, the majority
declines to explain whether—and, if so, why—it is overruling
precedent despite the obvious appearance that it is doing so. If it
intends to alter legal principles embedded in this Court’s decisions,
then the new majority should explain its reasons clearly and
2009] P
OTTER V
M
C
L
EARY
479
O
PINION BY
M
ARKMAN
,J.
ion: (1) it addresses issues that have neither been brief
nor argued; (2) it addresses an issue that was formally
abeyed; (3) it violates one of this Court’s internal rules
by reversing the Court of Appeals on an issue that has
neither been briefed nor argued, without the required
five votes and in the absence of any emergency circum-
stances; (4) it concludes that HVR was entitled to a
notice of intent simply because this is a medical mal-
practice action and because the words “professional
corporation” can be found in § 5838a, without any
discussion of whether HVR is either a “health profes-
sional or health facility” under § 2912b(1); (5) it con-
cludes that the requirement of § 2912b(4)(a) that the
notice of intent contain a statement of the “factual basis
for the claim” does not require a statement indicating
that the reason that the defendant professional corpo-
ration is being sued is because the defendant physician
intelligibly. Instead, the new majority overrules by indirection, or
at least leaves the impression that it is doing so, thereby sowing
the seeds of confusion and making it difficult for the citizens of this
state to comprehend precisely what our caselaw requires. This
appears to be an unfortunate return to our predecessors’ past
practice of “frequently pa[ying] little attention to the inconsisten-
cies among its cases and declin[ing] to reduce confusion in [the
Court’s] jurisprudence by overruling conflicting decisions.” Devil-
lers v Auto Club Ins Ass’n, 473 Mich 562, 571 n 19 (2005).
See also Rowland, 477 Mich at 226-227 (M
ARKMAN
, J., concurring), for
further discussion of the penchant of some justices to ignore inconvenient
precedents, thereby “[leaving] intact precedents that were inconsistent
with new decisions, essentially allowing future litigants to choose among
inconsistent precedents as in columns A and B of a Chinese restaurant
menu.”
In the end, there is no shortcut to resolving whether the
majority or the dissenting justices are correct in their character-
izations of what the majority is doing. We can only identify what
we believe to be the questionable decisions of the majority, identify
the relevant precedents, and invite the reader to reach his or her
own conclusions. [Petersen, 484 Mich at 392 n 47 (M
ARKMAN
,J.
dissenting).]
480 484 M
ICH
397 [July
O
PINION BY
M
ARKMAN
,J.
was working at the corporation at the time of the
alleged malpractice; (6) it concludes that the require-
ment of § 2912b(4)(b) that the notice of intent contain a
statement of the “applicable standard of practice or
care” does not require a statement indicating whether
the plaintiff is seeking to hold the defendant profes-
sional corporation directly or vicariously liable; (7) it
relies upon a distinction without any difference to
conclude that Roberts II is not dispositive; (8) it ques-
tions whether Roberts II was correctly decided with
regard to whether a notice of intent must be particu-
larized, leaving the bench and bar at a loss as to
whether Roberts II remains good law on this issue; and
(9) it implicitly overrules Roberts II’s holding that a
notice of intent must indicate whether the plaintiff is
seeking to hold the defendant professional corporation
vicariously or directly liable and its holding that a
notice of intent must contain all of the statements
required by § 2912b(4), without any mention whatso-
ever of stare decisis.
IV. CONCLUSION
Although the notice of intent was sufficient as to
defendant Murry, it was insufficient as to defendant
HVR. As this Court held in Roberts I, a defective
notice of intent does not toll the statute of limita-
tions. Because the complaint was filed more than two
years after the alleged malpractice occurred, the
action against HVR is time-barred. Accordingly, I
would affirm the portions of the Court of Appeals
opinion that held that the notice of intent was
sufficient as to defendant Murry and insufficient as
to defendant HVR, but reverse the portions that held
that the defective notice of intent tolled the statute of
limitations and thus that a dismissal without preju-
2009] P
OTTER V
M
C
L
EARY
481
O
PINION BY
M
ARKMAN
,J.
dice was appropriate. The action against HVR should
be dismissed with prejudice.
482 484 M
ICH
397 [July
O
PINION BY
M
ARKMAN
,J.
HENRY v DOW CHEMICAL COMPANY
Docket No. 136298. Argued March 3, 2009 (Calendar No. 9). Decided July
31, 2009.
Gary and Kathy Henry and others brought an action in the Saginaw
Circuit Court against Dow Chemical Company, alleging that the
defendant negligently released dioxin, a toxic chemical, into the
Tittabawassee River flood plain, where the plaintiffs live and
work. The plaintiffs moved for certification of two classes: one
consisting of approximately 2,000 individuals who owned property
within the 100-year flood plain of the Tittabawassee River and the
other consisting of individuals who sought ongoing medical moni-
toring at the defendant’s expense. The court, Leopold P. Borrello,
J., denied the defendant’s motion for summary disposition of the
medical-monitoring claim, and the Court of Appeals, G
RIFFIN
,P.J.,
and W
HITBECK
,C.J.(O
WENS
, J., dissenting), denied leave to appeal
that ruling in an unpublished order entered October 29, 2003
(Docket No. 251234). The Supreme Court, after granting leave to
appeal and staying the proceedings below, held that the plaintiffs
had not established the requisite element of actual harm, and
accordingly remanded the case to the trial court for the entry of an
order of summary disposition in the defendant’s favor regarding
the medical-monitoring claim. 473 Mich 63 (2005). On remand, the
trial court certified the proposed class of real-property owners
under MCR 3.501(A)(1) with respect to the remaining claims of
negligence and nuisance. This ruling was appealed to the Court of
Appeals, F
ORT
H
OOD
,J.(M
ETER
, J., concurring in part and dissent-
ing in part, and K. F. K
ELLY
,P.J., dissenting), which affirmed the
trial court’s certification order with respect to determining the
defendant’s liability, but not with respect to determining damages.
Unpublished opinion of the Court of Appeals, issued January 24,
2008 (Docket No. 266433). The Supreme Court granted the
defendant’s application for leave to appeal. 482 Mich 1043 (2008).
In an opinion by Justice W
EAVER
, joined by Chief Justice K
ELLY
and Justices C
AVANAGH
and H
ATHAWAY
, the Supreme Court held:
A party seeking class certification bears the burden of estab-
lishing that each of the prerequisites for class certification in MCR
3.501(A)(1) is in fact satisfied. It is not sufficient for a certifying
2009] H
ENRY V
D
OW
C
HEMICAL
C
O
483
court to simply accept a party’s assertion that the prerequisites are
met. When looking beyond a party’s assertions in order to assess
whether the prerequisites for class certification are met, a certi-
fying court should do so without delving into the merits of the
underlying claims. Because the circuit court may have used an
evaluative framework that is inconsistent with this Court’s inter-
pretation of the rule and articulation of the proper analysis for
class certification, this case is remanded to the circuit court so that
it may clarify, in light of this Court’s decision, its reasoning for
ruling that MCR 3.501(A)(1)(c) and (d) were met.
1. The standard of review for class certification encompasses
de novo review on questions of law, review for clear error on
questions of fact, and review for abuse of discretion on the
ultimate decision on the motion for class certification. The Michi-
gan Court Rules govern the procedure for certifying class actions
in Michigan courts. MCR 3.501(A)(1) provides specific prerequi-
sites for proposed plaintiff classes, and a party seeking class
certification bears the burden of proving that all these prerequi-
sites are met. This burden cannot be sustained on the basis of a
party’s bare assertion that the prerequisites have been met. The
trial court must determine that all the prerequisites are satisfied
before it may certify a class. The averments in the pleadings of a
party seeking class certification are only sufficient to certify a class
if they satisfy the burden on the party seeking certification to
prove that the prerequisites are met, such as in cases where the
facts necessary to support this finding are uncontested or admitted
by the opposing party. If the pleadings are not sufficient, the court
must look to additional information beyond the pleadings to
determine whether class certification is proper. In so doing, the
court must analyze any asserted facts, claims, defenses, and
relevant law without questioning the actual merits of the case.
2. The rule articulated in Neal v James, 252 Mich App 12
(2002), requiring a trial court to accept as true the allegations
supporting a motion for class certification, is overruled to the
extent that it could be read to require a trial court to accept as true
a plaintiff’s bare assertion that a class certification prerequisite is
met.
3. The trial court’s indication in this case that it was required
to accept the allegations of the plaintiff in support of the motion
for class certification as true is at least potentially inconsistent
with the court rules, which allow class certification only if the
prerequisites listed in MCR 3.501(A)(1) are met. The class certifi-
cation in this case must be vacated to the extent the trial court
used this incorrect standard. This case is therefore remanded to
484 484 M
ICH
483 [July
the trial court so that it can clarify its analysis of MCR
3.501(A)(1)(c) and (d). If, on remand, the trial court determines
that the standard it used is inconsistent with the proper standard,
it should reanalyze all the class certification prerequisites under
MCR 3.501(A)(1). If the trial court determines that it used the
correct legal standard in ruling on the plaintiffs’ motion for class
certification, it need only revisit MCR 3.501(A)(1)(c) and (d) in
order to provide further explanation on the record for its conclu-
sion that the prerequisites were met.
Justice K
ELLY
, concurring, wrote separately to address Justice
M
ARKMAN
’s comments regarding the majority’s lack of respect for
the doctrine of stare decisis and to explain why the accusation that
the Court has been ignoring precedent is incorrect.
Affirmed in part, class certification order vacated, and case
remanded for further proceedings.
Justice Y
OUNG
, joined by Justices C
ORRIGAN
and M
ARKMAN
,
concurring in part and dissenting in part, concurred in part II of
the majority opinion regarding the appropriate appellate standard
of review for class certification decisions and part III(A) of the
majority opinion regarding the appropriate legal standard a trial
court must apply in ruling on a motion for class certification. He
also concurred in the majority’s decision to overrule Neal to the
extent it required a trial court to accept as true a plaintiff’s bare
assertion that a class certification prerequisite is met. Because the
trial court used the wrong legal standard in certifying the class, he
would vacate the trial court’s class certification decision in its
entirety and, on remand, limit any certification of the proposed
class to issues of liability because the plaintiffs did not cross-appeal
the Court of Appeals judgment that vacated class certification with
respect to the issue of damages.
Justice C
ORRIGAN
, joined by Justice M
ARKMAN
, concurred fully
with Justice Y
OUNG
, and wrote separately to state that the class
proposed by plaintiffs is too broad because it includes members
who have not suffered present injuries.
Justice W
EAVER
, in a separate opinion, explained her participa-
tion in the case in light of her recent inheritance of 108 shares of
the defendant’s stock, reproduced the disclosure statement sent to
the parties on her behalf, and renewed her call for fair, clear,
written rules for disqualification of Supreme Court justices.
Justice Y
OUNG
, in a separate opinion, responded to Justice
W
EAVER
’
S
separate opinion regarding her participation, clarifying
that he did not disagree with her decision to notify the parties of
her ownership interest in the defendant but challenged the ad-
2009] H
ENRY V
D
OW
C
HEMICAL
C
O
485
equacy of the disclosure. He stated his belief that any ownership
interest in a party precludes a judge’s participation under MCR
2.003(B)(5), as it would under the analogous federal statute. His
opinion included his statement to the parties in response to the
disclosure statement sent on Justice W
EAVER
’s behalf.
1. A
CTIONS —
C
LASS
A
CTIONS —
M
OTIONS TO
C
ERTIFY
C
LASS
A
CTIONS —
S
TAN-
DARDS OF
R
EVIEW
.
The standard of review for class certification encompasses de novo
review on questions of law, review for clear error on questions of
fact, and review for abuse of discretion on the ultimate decision on
the motion for class certification.
2. A
CTIONS —
C
LASS
A
CTIONS —
M
OTIONS TO
C
ERTIFY
C
LASS
A
CTIONS —
P
REREQ-
UISITES FOR
C
LASS
C
ERTIFICATION —
B
URDEN OF
P
ROOF
.
A party seeking class certification cannot sustain its burden of
proving that all the prerequisites of the Michigan Court Rules are
met by means of a bare assertion that the prerequisites have been
met unless the facts necessary to support such a finding are
uncontested or admitted by the opposing party (MCR 3.501[A]).
3. A
CTIONS —
C
LASS
A
CTIONS —
M
OTIONS TO
C
ERTIFY
C
LASS
A
CTIONS —
P
REREQ-
UISITES FOR
C
LASS
C
ERTIFICATION
.
If the pleadings alone are not sufficient to establish that the
prerequisites for class certification have been met, a trial court
must look beyond the pleadings to determine whether class
certification is proper by analyzing any asserted facts, claims,
defenses, and relevant law without questioning the actual merits
of the case (MCR 3.501[A]).
Trogan & Trogan, P.C. (by Bruce F. Trogan), The
Woody L aw Firm P.C. (by Teresa A. Woody), Stueve
Siegel Hanson LLP (by Norman E. Siegel and Todd M.
McGuire), and Spencer Fane Britt & Browne LLP (by
Carl H. Helmstetter and Michael F. Saunders) for the
plaintiffs.
Dickinson Wright PLLC (by Kathleen A. Lang and
Phillip J. DeRosier), Braun Kendrick Finkbeiner, PLC
(by John A. Decker), and Kirkland & Ellis LLP (by
Douglas Kurtenbach and Christopher Landau) for the
defendant.
486 484 M
ICH
483 [July
Amici Curiae:
Macuga, Liddle & Dubin, P.C. (by David R. Dubin),
for the Brindley plaintiff class.
Plunkett Cooney (by Mary Massaron Ross and Hilary
A. Dullinger) for DRI and Michigan Defense Trial
Counsel.
Honigman Miller Schwartz and Cohn LLP (by Nor-
man C. Ankers and Bruce L. Segal) for the Michigan
Chamber of Commerce.
Thomas A. Biscup for the Michigan Association for
Justice.
Clark Hill PLC (by David D. Grande-Cassell and
Kristin B. Bellar) for the Michigan Manufacturers
Association.
Dykema Gossett PLLC (by James P. Feeney, Jill M.
Wheaton, and Thomas M. Hanson) for Product Liability
Advisory Council, Inc.
Charfoos & Christensen, P.C. (by David R. Parker) for
the Science and Environmental Health Network, the
Ecology Center, the Lone Tree Council, the Michigan
League of Conservation Voters, the Michigan Environ-
mental Council, and the Great Lakes Environmental
Law Center.
Shook, Hardy & Bacon L.L.P. (by Dana M. Mehrer,
Victor E. Schwartz, and Cary Silverman)(Robin S.
Conrad, Amar D. Sarwal, Quentin Riegel, and Donald
D. Evans, of counsel) for the Chamber of Commerce of
the United States of America, the National Association
of Manufacturers, and the American Chemistry Coun-
cil.
2009] H
ENRY V
D
OW
C
HEMICAL
C
O
487
W
EAVER
, J. Class action litigation in Michigan is
governed by the Michigan Court Rules, and MCR
3.501(A)(1) specifically sets forth the prerequisites for
class certification. These prerequisites are often re-
ferred to as numerosity, commonality, typicality, ad-
equacy, and superiority.
1
In this case we consider the proper analysis a court
must conduct when determining whether the prerequi-
sites for class certification have been met. Additionally,
we consider whether this particular class of plaintiffs
was erroneously certified by the circuit court.
In deciding these questions, we conclude that a party
seeking class certification is required to provide the
certifying court with information sufficient to establish
that each prerequisite for class certification in MCR
3.501(A)(1) is in fact satisfied. A court should avoid
making determinations on the merits of the underlying
claims at the class certification stage of the proceedings.
Additionally, we remand this case to the circuit court
for clarification of its analysis of MCR 3.501(A)(1)(c)
and (d) in light of our opinion today.
I. FACTS AND PROCEDURAL BACKROUND
This case arises from allegations that defendant,
Dow Chemical Company, negligently released dioxin, a
synthetic chemical that is potentially hazardous to
human health, from its Midland plant into the Tittaba-
wassee River. The representative plaintiffs allege that
they, along with the proposed class members, have
incurred property damage caused by the dioxin con-
tamination. Plaintiffs’ claims are based on theories of
1
See infra at 496-497 for the complete court rule containing the
prerequisites for class certification.
488 484 M
ICH
483 [July
O
PINION OF THE
C
OURT
negligence and nuisance. This dispute concerns the
circuit court’s decision to grant plaintiffs’ motion for
class certification.
At the outset, we note that Dow’s alleged dioxin
contamination of the Tittabawassee River has been the
subject of a prior appeal in this Court (Henry I).
2
In
Henry I, we addressed plaintiffs’ allegations that dioxin
negligently released by Dow caused a risk of harm to
their health.
3
In Henry I, we articulated the basic facts
and procedural history surrounding the alleged dioxin
contamination as follows:
Defendant, The Dow Chemical Company, has main-
tained a plant on the banks of the Tittabawassee River in
Midland, Michigan, for over a century. The plant has
produced a host of products, including, to name only a few,
“styrene, butadiene, picric acid, mustard gas, Saran Wrap,
Styrofoam, Agent Orange, and various pesticides including
Chloropyrifos, Dursban and 2, 4, 5-trichlorophenol.” Michi-
gan Department of Community Health, Division of Envi-
ronmental and Occupational Epidemiology, Pilot Exposure
Investigation: Dioxin Exposure in Adults Living in the
Tittabawassee River Flood Plain, Saginaw County, Michi-
gan, May 25, 2004, p 4.
According to plaintiffs and published reports from the
[Michigan Department of Environmental Quality (MDEQ)],
defendant’s operations in Midland have had a deleterious
effect on the local environment. In 2000, General Motors
Corporation was testing soil samples in an area near the
Tittabawassee River and the Saginaw River when it discov-
ered the presence of dioxin, a hazardous chemical believed to
cause a variety of health problems such as cancer, liver
disease, and birth defects.
By spring 2001, the MDEQ had confirmed the presence
of dioxin in the soil of the Tittabawassee flood plain.
Further investigation by the MDEQ indicated that defen-
dant’s Midland plant was the likely source of the dioxin.
2
Henry v Dow Chem Co, 473 Mich 63; 701 NW2d 684 (2005) (Henry I).
3
Id.at67.
2009] H
ENRY V
D
OW
C
HEMICAL
C
O
489
O
PINION OF THE
C
OURT
Michigan Department of Environmental Quality, Remedia-
tion and Redevelopment Division, Final Report, Phase II
Tittabawassee/Saginaw River Dioxin Flood Plain Sam-
pling Study, June 2003, p 42 (identifying Dow’s Midland
plant as the “principal source of dioxin contamination in
the Tittabawassee River sediments and the Tittabawassee
River flood plain soils”).
In March 2003, plaintiffs moved for certification of
two classes in the Saginaw Circuit Court. The first class
was composed of individuals who owned property in the
flood plain of the Tittabawassee River and who alleged
that their properties had declined in value because of the
dioxin contamination. The second group consisted of
individuals who have resided in the Tittabawassee flood
plain area at some point since 1984 and who seek a
court-supervised program of medical monitoring for the
possible negative health effects of dioxin discharged from
Dow’s Midland plant. This latter class consists of 173
plaintiffs and, by defendant’s estimation, “thousands” of
putative members.
Defendant moved under MCR 2.116(C)(8) for summary
disposition of plaintiffs’ medical monitoring claim. The
Saginaw Circuit Court denied this motion, and denied
defendant’s subsequent motions for reconsideration and
for a stay of proceedings.
After the Court of Appeals denied defendant’s motion
for peremptory reversal and emergency application for
leave to appeal, the defendant sought emergency leave to
appeal in this Court. Discovery and other preliminary
proceedings on plaintiffs’ motion for class certification
continued in the Saginaw Circuit Court until, on June 3,
2004, we stayed the proceedings below and granted defen-
dant’s application for leave to appeal.
[
4
]
Given that plaintiffs did not allege a present medical
injury, we concluded that plaintiffs did not assert a
viable negligence claim recognized by Michigan com-
4
Id. at 69-70.
490 484 M
ICH
483 [July
O
PINION OF THE
C
OURT
mon law.
5
Therefore, we reversed the circuit court’s
denial of Dow’s motion for summary disposition with
regard to plaintiffs’ medical monitoring claims and
remanded the matter to the circuit court for entry of an
order of summary disposition accordingly.
6
On remand, the circuit court addressed plaintiffs’
motion for class certification with respect to the re-
maining claims of negligence and nuisance, which are
the subjects of the present appeal. The current pro-
posed class consists of persons owning real property
within the 100-year flood plain of the Tittabawassee
River on February 1, 2002.
7
The proposed class is
estimated by plaintiffs to consist of approximately 2,000
persons.
The circuit court certified the proposed class, con-
cluding that the prerequisites for class certification in
MCR 3.501(A)(1) were met. Specifically, the circuit
court ruled that joinder of approximately 2,000 persons
is impracticable, the question of Dow’s allegedly negli-
5
Id.at81.
6
Id. at 102.
7
Plaintiffs define the scope of the 100-year flood plain of the Tittaba-
wassee River as the geographic area bounded on the west and south by
River Road and Stroebel Road, including areas on the west and south side
of those roads, and bounded on the east and north by Midland Road, St.
Andrews Road, and Michigan Avenue, including areas on the east and
north side of those roads.
The Michigan Department of Environmental Quality provides the
following information regarding “floodplains” on its website:
A river, stream, lake, or drain may on occasion
overflow [its] banks and inundate adjacent land areas. The land
that is inundated by water is defined as a floodplain. In Michigan,
and nationally, the term floodplain has come to mean the land
area that will be inundated by the overflow of water resulting
from a 100-year flood (a flood which has a 1% chance of
occurring any given year). [<http:www.michigan.gov/
deq/0,1607,7-135-3313_3684_3725—-,00.html> (accessed July 14,
2009).]
2009] H
ENRY V
D
OW
C
HEMICAL
C
O
491
O
PINION OF THE
C
OURT
gent pollution is common to all plaintiffs, the mere fact
that damages may be individualized is not sufficient to
defeat class certification, the plaintiffs’ property claims
arise from the same alleged actions of Dow, the class
members share common legal and remedial theories, and
the representative plaintiffs are able to fairly and ad-
equately protect the interests of the proposed class mem-
bers.
Additionally, the circuit court determined that main-
tenance of this suit as a class action is the superior
method of adjudication given that denial of class certi-
fication may result in up to 2,000 individual suits
against Dow. The circuit court further reasoned that a
class action would be manageable here because the class
members all reside in the allegedly polluted area and
similar evidence would be required to establish Dow’s
negligence with respect to each class member.
The Court of Appeals granted Dow’s application for
leave to appeal from the circuit court order granting
class certification. In a divided decision, the Court of
Appeals affirmed the class certification with regard to
the issue of Dow’s liability only.
8
The lead opinion concluded that class certification on
all issues, including the issue of damages, is proper.
9
8
Henry v Dow Chem Co, unpublished opinion per curiam of the Court
of Appeals, issued January 24, 2008 (Docket No. 266433).
9
The lead opinion reviewed the order for clear error and concluded that
because neither party requested an evidentiary hearing in the circuit court,
there were no factual findings to review. Henry, unpub op at 7-8 (opinion of
F
ORT
H
OOD
, J.). Additionally, the lead opinion concluded that the circuit court
properly relied on caselaw in support of its decision to grant certification. Id.
at 8. The lead opinion referred to two published Court of Appeals opinions in
which class certification was deemed inappropriate: Zine v Chrysler Corp,
236 Mich App 261; 600 NW2d 384 (1999), and Tinman v Blue Cross & Blue
Shield, 264 Mich App 546; 692 NW2d 58 (2004). After reviewing those cases,
the lead opinion concluded that both cases required more of an individual-
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The lead opinion relied on the MDEQ findings submit-
ted by plaintiffs and held that, in light of the MDEQ’s
findings and the fact that the parties presented contra-
dicting theories of the dioxin contamination, the circuit
court did not clearly err.
10
A partial concurrence to and partial dissent from the
lead Court of Appeals opinion agreed that the circuit
court did not err in certifying the class with respect to
Dow’s liability, but concluded that individualized ques-
tions prevailed with respect to the issue of damages.
Thus, the partial concurrence and partial dissent rea-
soned that a bifurcated proceeding would be the most
appropriate manner of adjudication.
11
ized inquiry than in the present case and, therefore, the present case is
factually distinguishable. Henry, unpub op at 8-11 (opinion of F
ORT
H
OOD
,
J.).
10
The MDEQ’s findings are set forth in a “declaration” made by the
MDEQ. The declaration indicates that some of the levels of dioxin initially
discovered near the Tittabawassee River were as high as 2,200 parts per
trillion, which is a concentration 25 times that of the residential direct
contact criterion. The declaration further explains that the dioxin was likely
transported downstream onto the flood plain during flood events.
The declaration indicates that the MDEQ hired a survey firm to
develop a flood plain map and establish the 100-year flood plain at issue.
On the basis of the survey results, the MDEQ issued an information
bulletin to 2,500 individuals explaining the potential hazards of dioxin
exposure and the MDEQ’s need for further investigation.
According to the declaration, further investigations confirmed the
presence of excessive dioxin concentrations. This discovery permitted the
MDEQ to classify each contaminated property as a “facility.” The effect of
the “facility” designation includes the imposition of various obligations
on the affected property owners. Pursuant to state environmental laws,
these property owners must notify potential purchasers of the dioxin
contamination.
The MDEQ’s declaration identifies Dow’s Midland facility as the
“principal source” of the dioxin. The declaration clarifies that dioxin
concentrations from other sources were too low to result in the levels of
dioxin discovered.
11
In a “bifurcated” proceeding, the class would be certified with
respect to the issue of Dow’s liability. If Dow’s liability is established,
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The Court of Appeals dissent concluded that the
circuit court did not engage in a “rigorous analysis”
to determine whether the prerequisites for class
certification are met, as required by Gen Tel Co of the
Southwest v Falcon, 457 US 147, 161; 102 S Ct 2364;
72 L Ed 2d 740 (1982). Therefore, the dissent con-
cluded that the class was erroneously certified with
respect to all issues.
12
This Court granted Dow’s application for leave to
appeal, asking the parties to address, among other
issues, whether the federal “rigorous analysis” require-
ment for class certification also applies to state class
actions and whether this particular class of plaintiffs
was properly certified by the circuit court.
13
individual plaintiffs must then choose whether to seek damages on their
own. Henry, unpub op at 2 (M
ETER
,P.J., concurring in part and dissenting
in part). As the partial concurrence and partial dissent reasoned, the
circuit court may “use case-management tools to consolidate claims that
will involve largely similar proofs on the issue of damages.” Id.
12
Henry, unpub op at 1 (K. F. K
ELLY
, J., dissenting). The dissent
additionally opined that individual issues overwhelmingly predominate
over any common issues of fact and law in this case, specifically noting
that the flooding pattern is not uniform for each plaintiff involved. Id.at
5.
13
Henry v Dow Chem Co, 482 Mich 1043 (2008). The order asked the
parties to consider specifically:
(1) whether the “rigorous analysis” requirement for class
certification that is applied in the federal courts also applies to
state class actions, see Gen Tel Co of the Southwest v Falcon, 457
US 147, 161; 102 S Ct 2364; 72 L Ed 2d 740 (1982); (2) if so,
whether the Saginaw Circuit Court engaged in the required
rigorous analysis to determine if class certification was appro-
priate; (3) whether the plaintiffs met all of the requisites for
class certification established in MCR 3.501(A)(1), including the
requirement that questions of law or fact common to the
members of the class predominate over questions affecting only
individual members; and (4) whether the plaintiffs established
that they suffered injury on a class wide basis in order to justify
class certification.
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II. STANDARD OF REVIEW
In order to resolve the issues presented in this case,
this Court must first consider the proper application of
MCR 3.501(A). The proper interpretation and applica-
tion of a court rule is a question of law, which we review
de novo.
14
This court uses the principles of statutory
construction when interpreting a Michigan court rule.
15
We begin by considering the plain language of the court
rule in order to ascertain its meaning.
16
“The intent of
the rule must be determined from an examination of
the court rule itself and its place within the structure of
the Michigan Court Rules as a whole.”
17
However, we note that this Court has not formally
established the standard of review for class certification
decisions. Therefore, we take this opportunity to do so.
We have held that where a party challenges a trial
court’s factual findings, a review for clear error is
appropriate, and where a party challenges a trial court’s
exercise of discretion, a review for abuse of discretion is
appropriate.
18
Given that the analysis a trial court must
14
Haliw v Sterling Hts, 471 Mich 700, 704; 691 NW2d 753 (2005).
15
Id.
16
Id. at 705.
17
Id. at 706.
18
Herald Co, Inc v Eastern Michigan Univ Bd of Regents, 475 Mich
463, 471-472; 719 NW2d 19 (2006). In Herald, this Court clarified, in the
context of the Freedom of Information Act (FOIA), that if a party
challenges some underlying fact supporting the trial court’s decision,
then the appropriate standard of review is clear error, and the reviewing
court must defer to the trial court’s view of the facts unless the reviewing
court is “left with the definite and firm conviction that a mistake has
been made by the trial court.” Id. at 472. However, we further held that
“when an appellate court reviews a decision committed to the trial court’s
discretion, such as the balancing test at issue in [FOIA cases],...the
appellate court must review the discretionary determinations for an
abuse of discretion....”Id.
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undertake in order to determine whether to certify a
proposed class may involve making both findings of
fact and discretionary determinations, we find it
proper to review the trial court’s factual findings for
clear error and the decisions within the trial court’s
discretion for abuse of discretion. This differentiated
standard of review for class certification decisions is
consistent with the mixed nature of a proper class
certification analysis.
III. ANALYSIS
The parties dispute whether the federal “rigorous
analysis” requirement for class certification also applies
to state class actions and whether class certification was
appropriate in this particular case.
A. WHAT IS THE PROPER ANALYSIS FOR DETERMINING
WHETHER CLASS CERTIFICATION IS JUSTIFIED?
Pursuant to MCR 3.501(A)(1), members of a class
may only sue or be sued as a representative party of all
class members if the prerequisites dictated by the court
rule are met. Therefore, in order to proceed with a suit
in the form of a class action, the following circum-
stances must exist:
(a) the class is so numerous that joinder of all members
is impracticable;
(b) there are questions of law or fact common to the
members of the class that predominate over questions
affecting only individual members;
(c) the claims or defenses of the representative parties
are typical of the claims or defenses of the class;
(d) the representative parties will fairly and adequately
assert and protect the interests of the class; and
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(e) the maintenance of the action as a class action will be
superior to other available methods of adjudication in
promoting the convenient administration of justice. [MCR
3.501(A)(1).]
Next, MCR 3.501(A)(2) sets forth the following non-
exhaustive list of factors that a court should consider
when determining whether maintaining a suit as a class
action is the “superior” method of adjudication:
(a) whether the prosecution of separate actions by or
against individual members of the class would create a risk
of
(i) inconsistent or varying adjudications with respect to
individual members of the class that would confront the
party opposing the class with incompatible standards of
conduct; or
(ii) adjudications with respect to individual members of
the class that would as a practical matter be dispositive of
the interests of other members not parties to the adjudica-
tions or substantially impair or impede their ability to
protect their interests;
(b) whether final equitable or declaratory relief might be
appropriate with respect to the class;
(c) whether the action will be manageable as a class
action;
(d) whether in view of the complexity of the issues or the
expense of litigation the separate claims of individual class
members are insufficient in amount to support separate
actions;
(e) whether it is probable that the amount which may be
recovered by individual class members will be large enough
in relation to the expense and effort of administering the
action to justify a class action; and
(f) whether members of the class have a significant
interest in controlling the prosecution or defense of sepa-
rate actions. [MCR 3.501(A)(2).]
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It is important to note that the rules governing class
certification in MCR 3.501(A) very closely mirror the
federal prerequisites for class certification found in FR
Civ P 23. In Falcon, the United States Supreme Court
reiterated that the class action device for litigation is
“ ‘an exception to the usual rule that litigation is
conducted by and on behalf of the individual named
parties only.’ ”
19
The Supreme Court concluded that
district courts must conduct a “rigorous analysis” of
each of the class action prerequisites in FR Civ P 23
before certifying a class.
20
Dow argues that the federal “rigorous analysis” re-
quirement should apply to state class actions as well.
21
Dow asserts that representative plaintiffs will always
allege that their proposed class complies with the pre-
requisites for class certification, and a trial court should
not simply rely on these allegations when deciding
whether to certify a class. While Dow concedes that a
court may not deny class certification on the ground
that plaintiffs are unlikely to prevail on the merits of
their underlying claims, Dow argues that this prohibi-
tion alone does not relieve plaintiffs of their burden to
establish that the prerequisites of class certification
have in fact been met.
19
Falcon, supra at 155 (citation omitted).
20
Id. at 161.
21
Dow asserts that the “rigorous analysis” requirement has already been
incorporated into Michigan caselaw in Jackson v Wal-Mart Stores, Inc,
unpublished opinion per curiam of the Court of Appeals, issued November
29, 2005 (Docket No. 258498), at 3, quoting F alcon, supra at 155.
In Jackson, the Court of Appeals reasoned that “ ‘the class determi-
nation generally involves considerations that are enmeshed in the factual
and legal issues comprising plaintiff’s cause of action,’ ” and the “rigor-
ous analysis” may necessarily require the court to “ ‘probe behind the
pleadings’ and analyze the claims, defenses, relevant facts, and applicable
substantive law ‘before coming to rest on the certification question.’ ”
Jackson, supra at 3, quoting Falcon, supra at 155, 160 (citation and
quotation marks omitted).
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Conversely, plaintiffs argue that only MCR 3.501(A)
governs class certification in Michigan, and that this
court rule does not mandate a “rigorous analysis.”
Additionally, plaintiffs point out that no decision by this
Court, or any published opinion by the Court of Ap-
peals, has held that the federal “rigorous analysis”
requirement applies to state class actions.
Given that Michigan’s requirements for class certifi-
cation are nearly identical to the federal requirements,
we find it reasonable to conclude that similar purposes,
goals, and cautions are applicable to both.
22
While it is
true that Michigan courts are not bound by any decision
requiring a “rigorous analysis,” we question whether
the purpose of the strictly articulated class certification
prerequisites would be defeated if a representative
plaintiff’s only burden is to simply state that its pro-
posed class does in fact meet the prerequisites.
Dow argues that this type of lax burden would give
courts the authority to “rubber stamp” a plaintiff’s
allegations that the prerequisites in MCR 3.501(A)(1)
have been met. To avoid this danger, Dow urges this
Court to clarify that the federal “rigorous analysis”
standard applies for state class actions. However, Dow’s
argument seems to implicate only two options: either
Michigan courts must conduct a “rigorous analysis” for
class certification decisions, or Michigan courts may
simply accept a plaintiff’s bare assertions that the
prerequisites for class certification are in fact met. We
believe that Dow’s argument is unnecessarily narrow in
scope.
The plain language of MCR 3.501(A)(1) states that
representative plaintiffs may pursue a class action suit
22
The United States Court of Appeals for the Sixth Circuit recognized
class actions as a procedural device used “to achieve the economies of
time, effort, and expense.” Sterling v Velsicol Chem Corp, 855 F2d 1188,
1196 (CA 6, 1988).
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“only if” the enumerated prerequisites are met. Thus, it
is apparent that strict adherence to the class certifica-
tion requirements is required. There is nothing ambigu-
ous about this court rule. A party seeking class certifi-
cation must meet the burden of establishing each
prerequisite before a suit may proceed as a class action.
Furthermore, there is no authority in Michigan allow-
ing a party seeking class certification to avoid this
affirmative burden.
The next logical inquiry is what a party must show in
order to satisfy a court that the prerequisites for class
certification are established. More specifically, how
must a court analyze a party’s motion for class certifi-
cation to determine whether sufficient information
exists to justify certification?
Given that MCR 3.501(A)(1) contains carefully
crafted prerequisites for class certification, common
sense dictates that at least some greater analysis is
required than simply accepting a party’s bare assertion
that the prerequisites have been met. The United
States Supreme Court has labeled this greater analysis
as a “rigorous” one in Falcon.
23
The problem is that
Falcon provides little guidance as to what a “rigorous
analysis” actually entails. Furthermore, Falcon is so
factually distinct from the present case that we are
unable to draw significant parallel conclusions.
24
What
we can infer from the Falcon decision is that a court
23
Falcon, supra at 161.
24
Falcon is based on federal claims of Title VII discrimination. The
most significant issue in Falcon dealt with whether it was sufficiently
shown that the representative plaintiff had claims that were typical of
those of the other class members. The Supreme Court concluded that no
showing had been made regarding questions of law or fact that were
common to the claims of the representative employee and of the members
of the class he sought to represent. The Supreme Court stated in
conclusion that “a Title VII class action, like any other class action, may
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must only certify a class in circumstances where the
court has actually been shown that the prerequisites for
class certification are satisfied.
Before Falcon, the United States Supreme Court held
that trial courts should not conduct “a preliminary
inquiry into the merits” of claims when making a class
certification determination.
25
In Falcon, the Supreme
Court reasoned that because the decision to certify a
class involves considerations “ ‘enmeshed in the factual
and legal issues comprising the plaintiff’s cause of
action,’ ” a court may at times need to look further than
the pleadings to make a determination on class certifi-
cation.
26
The Supreme Court added that, sometimes,
the question of certification will be plainly and ad-
equately answered by the pleadings.
27
After Falcon, the
Supreme Court clarified that a trial court has broad
discretion when determining whether a class should be
certified; however, its discretion must be exercised
within the framework of FR Civ P 23.
28
Now, federal courts must balance both the prohi-
bition against delving into the merits of claims during
the class certification determination with the re-
quirement that courts conduct a “rigorous analysis”
to determine whether the class certification prereq-
uisites are satisfied. The United States Court of
Appeals for the Sixth Circuit recognizes that district
courts must conduct a “rigorous analysis” to determine
only be certified if the trial court is satisfied, after a rigorous analysis,
that the prerequisites of Rule 23(a) have been satisfied.” Id. at 161.
25
Eisen v Carlisle & Jacquelin, 417 US 156, 177; 94 S Ct 2140; 40 L Ed
2d 732 (1974).
26
Falcon, supra at 160, quoting Coopers & Lybrand v Livesay, 437 US
463, 469; 98 S Ct 2454; 57 L Ed 2d 351 (1978) (citation and quotation
marks omitted).
27
Id.
28
Gulf Oil Co v Bernard, 452 US 89, 100; 101 S Ct 2193; 68 L Ed 2d 693
(1981).
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whether the prerequisites in FR Civ P 23 are met.
29
In
addition, the Sixth Circuit has acknowledged that it is
possible to determine that the requirements for class
certification are met solely on the basis of the plead-
ings.
30
Nevertheless, this determination often requires
more information than the pleadings provide.
31
We agree with Dow that a certifying court may not
simply “rubber stamp” a party’s allegations that the
class certification prerequisites are met.
32
However, the
federal “rigorous analysis” requirement does not nec-
essarily bind state courts.
33
We believe that the plain
language of MCR 3.501(A) provides sufficient guidance
for class certification decisions in Michigan. Given that
MCR 3.501(A)(1) expressly conditions a class action on
satisfaction of the prerequisites, a party seeking class
certification is required to provide the certifying court
with information sufficient to establish that each pre-
requisite for class certification in MCR 3.501(A)(1) is in
fact satisfied. A court may base its decision on the
pleadings alone only if the pleadings set forth sufficient
information to satisfy the court that each prerequisite is
in fact met.
34
The averments in the pleadings of a party
29
In re American Med Sys, Inc, 75 F3d 1069, 1078 (CA 6, 1996).
30
Id. at 1079, citing Weathers v Peters Realty Corp, 499 F2d 1197, 1200
(CA 6, 1974).
31
Id.
32
We note that plaintiffs do not contest this argument. In fact,
plaintiffs assert that if this Court finds the need to articulate the proper
analysis for class certification, it may find valuable guidance in Sixth
Circuit decisions.
33
See Walters v Naddell, 481 Mich 377, 390; 751 NW2d 431 (2008).
34
The Sixth Circuit reasoned as follows in In re American Med Sys:
“Mere repetition of the language of Rule 23(a) is not
sufficient. There must be an adequate statement of the basic
facts to indicate that each requirement of the rule is fulfilled.
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seeking class certification are only sufficient to certify a
class if they satisfy the burden on the party seeking
certification to prove that the prerequisites are met,
such as in cases where the facts necessary to support
this finding are uncontested or admitted by the oppos-
ing party.
If the pleadings are not sufficient, the court must
look to additional information beyond the pleadings to
determine whether class certification is proper.
35
How-
ever, when considering the information provided to
support class certification, courts must not abandon the
well-accepted prohibition against assessing the merits
of a party’s underlying claims at this early stage in the
proceedings.
36
Similar to the federal district courts,
Maintainability may be determined by the court on the basis of
the pleadings, if sufficient facts are set forth, but ordinarily the
determination should be predicated on more information than
the pleadings will provide....Theparties should be afforded
an opportunity to present evidence on the maintainability of the
class action.” [In re American Med Sys, supra at 1079, quoting
Weathers, supra at 1200.]
35
A court may permit discovery before ruling on class certification
pursuant to MCR 3.501(B)(3)(b), which states: “The court may allow the
action to be maintained as a class action, may deny the motion, or may
order that a ruling be postponed pending discovery or other preliminary
procedures.”
36
Beattie v CenturyTel, Inc, 511 F3d 554, 560 (CA 6, 2007). In Beattie,
the court acknowledged that a “rigorous analysis” must be applied to
determine whether the prerequisites for class certification in FR Civ P 23
are met. However, the court also noted as follows:
Rule 23 does not require a district court, in deciding whether
to certify a class, to inquire into the merits of the plaintiff’s suit.
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177; 94 S. Ct. 2140;
40 L. Ed. 2d 732 (1974) (“We find nothing in either the language
or history of Rule 23 that gives a court any authority to conduct
a preliminary inquiry into the merits of a suit in order to
determine whether it may be maintained as a class action.”).
Daffin v. Ford Motor Co., 458 F.3d 549, 553 (6th Cir. 2006); [Id.]
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state courts also have broad discretion to determine
whether a class will be certified.
37
Certifying courts must be mindful that, when it is
necessary to look beyond a party’s assertions to deter-
mine whether class certification is proper, the courts
shall analyze any asserted facts, claims, defenses, and
relevant law without questioning the actual merits of
the case.
38
We believe the above analysis strikes the
appropriate balance between the need to ensure that
the class certification prerequisites are sufficiently sat-
isfied and the need to preserve a trial court’s discretion
in making class certification decisions.
B. DID THE CIRCUIT COURT ENGAGE
IN AN APPROPRIATE ANALYSIS TO DETERMINE
IF THE PREREQUISITES FOR CLASS CERTIFICATION
WERE SATISFIED IN THIS PARTICULAR CASE?
After reviewing the circuit court’s decision, we be-
lieve its articulation and application of the analysis for
class certification is potentially inconsistent with the
required analysis. Therefore, we give the circuit court
the opportunity to evaluate the class certification pre-
requisites in light of this Court’s articulation of the
proper analysis for determining whether class certifica-
tion is justified.
Again, there are cases where the pleadings alone will
be sufficient to establish that the prerequisites are met,
and a court should not evaluate the merits of the case at
37
See In re American Med Sys, supra at 1079.
38
In Jackson, the Court of Appeals did in fact rely on Falcon. However,
the Court of Appeals did not lose sight of the prohibition against
examining the merits of a case when determining whether to certify a
class, even if the certifying court finds it necessary to “ ‘probe behind the
pleadings’ and analyze the claims, defenses, relevant facts, and applicable
substantive law ‘before coming to rest on the certification question.’ ”
Jackson, supra at 3, quoting Falcon, supra at 160, and citing Neal v
James, 252 Mich App 12, 15; 651 NW2d 181 (2002).
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the class certification stage; however, mere repetition of
the language of MCR 3.501(A)(1) is not sufficient to
justify class certification, and there must be an ad-
equate statement of basic facts to indicate that each
prerequisite is fulfilled. As we have concluded, at least
some greater analysis is required than simply accepting
a party’s bare assertion that the prerequisites have
been met. Thus, a circuit court may not simply accept as
true a party’s bare statement that a prerequisite is met
unless the court independently determines that the
plaintiff has at least alleged a statement of basic facts
and law that are adequate to support that prerequisite.
In this particular case, before conducting its analysis
of the class certification prerequisites, the circuit court
announced that it must “accept the allegations of the
plaintiff in support of the motion as true.” This state-
ment is potentially inconsistent with the standard
adopted by this Court today to the extent that it could
be read to require courts to accept as true plaintiffs’
bare assertions that the class certification prerequisites
are met.
39
It is not clear whether the circuit court’s understand-
ing of the prerequisites of MCR 3.501(A)(1) was consis-
tent with the proper analysis announced in this Court’s
decision today. We acknowledge that this case does not
present a situation in which plaintiffs provided the
circuit court with only a complaint containing bare
assertions that the prerequisites of MCR 3.501(A)(1)
were met and the circuit court granted plaintiffs’ mo-
tion for class certification on the basis of those asser-
39
The circuit court’s statement of the appropriate standard is similar
to the approach previously adopted by the Court of Appeals in Neal,
supra at 15-16. Therefore, to the extent that Neal could be read to require
a trial court to accept as true a plaintiff’s bare assertion that a class
certification prerequisite is met, we overrule Neal.
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tions alone. Instead, the circuit court conducted a
two-day hearing and reviewed numerous documents
from both parties, including scientific studies, affidavits
from experts, and information provided by the MDEQ.
In its analysis of MCR 3.501(A)(1)(a), (b), and (e), the
circuit court appears to have independently determined
that plaintiffs alleged a statement of basic facts and law
sufficient to support each of those three prerequisites,
and we hold that its analysis of those three prerequi-
sites was sufficient. For MCR 3.501(A)(1)(c) and (d),
however, the analysis conducted on the record by the
circuit court was not sufficient to meet the proper
analysis announced by this Court today.
40
For MCR 3.501(A)(1)(c) and (d), where the analysis
conducted by the circuit court on the record was not
sufficient to meet the proper analysis, we do not believe
that it is possible to look behind the circuit court’s
40
For MCR 3.501(A)(1)(c), the typicality prerequisite, the circuit
court’s analysis consisted of a restatement of the standard; a statement
that “plaintiffs contend” that their claims “arise from the same course of
conduct” and that “they share common legal and remedial theories”; and
a quote from a federal district court case stating that the typicality
requirement may be satisfied if “there is a nexus between the class
representatives’ claims [and] defenses and the common questions of fact
or law which unite the class.” It is unclear from the circuit court’s
analysis whether it independently determined that the plaintiffs alleged
basic questions of law and fact sufficient to support their allegation that
their legal remedial theories were typical of those of the class.
In the circuit court’s analysis of MCR 3.501(A)(1)(d), the adequacy of
representation prerequisite, it stated that “[t]he representative parties
will fairly and adequately assert and protect the interest of the class.” It
supported this conclusion by reasoning that “no proof has been submit-
ted to this Court that would indicate that the Plaintiffs herein, the
representative parties, would not fairly and adequately assert and protect
the interest of the class.” In other words, the circuit court did not
perform an analysis that sufficiently shows that it independently deter-
mined that the plaintiffs would adequately represent the class and also
potentially shifted the burden to defendant to show that plaintiffs would
not adequately represent the class.
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analysis in order to guess whether the circuit court
actually conducted the correct analysis or whether the
circuit court would have reached the same result if it
had conducted the correct analysis. Especially given the
extensive evidentiary record developed in this case
before the class certification decision, the circuit court
may have made a valid, independent determination that
the plaintiffs had alleged an adequate statement of
basic facts and law sufficient to support a finding that
MCR 3.501(A)(1)(c) and (d) were met. Nonetheless,
because the circuit court potentially used an evaluative
framework that is inconsistent with this Court’s inter-
pretation of the rule, we remand this case to the circuit
court so that it may at least clarify its reasoning for
ruling that MCR 3.501(A)(1)(c) and (d) were met, in
light of this Court’s decision today.
41
We do not reach the question of if, and to what
extent, the issues involved in this case should be “bi-
furcated.” However, we note that it is within the circuit
court’s discretion to certify a class on a limited basis
and to decertify certain members of the class when it
deems it appropriate under MCR 3.501(B)(3).
42
Indeed,
the circuit court’s order suggested that it recognizes
41
To the extent that the circuit court determines that the standard it
initially used is inconsistent with the proper standard, it should reana-
lyze all the prerequisites under MCR 3.501(A)(1). If, however, the circuit
court determines that its standard was consistent with the proper
standard, it should only revisit MCR 3.501(A)(1)(c) and (d) in order to
provide further explanation on the record for its conclusion that the
prerequisites were met.
42
Justice Y
OUNG
states that we have “reversed the Court of Appeals
majority’s decision that bifurcation on damages is required” and, in
doing so, violated this Court’s procedural rules because the plaintiffs
did not file a cross-appeal on this issue. Post at 527. We disagree that
the Court of Appeals reached a decision on bifurcation that would have
required plaintiffs to cross-appeal the issue in order for it to be before
this Court.
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that it will likely be administratively easier to bifurcate
at some point. Given that the most efficient method for
conducting the proceedings will likely be affected by
how other issues in the case develop, and given the
We suggest that Justice Y
OUNG
is misreading the Court of Appeals
opinions. To the extent that there was a Court of Appeals “decision”
on bifurcation, it is because there were two votes in favor of class
certification only for the issue of liability and two votes against class
certification only for the issue of whether the commonality prerequi-
site was met with regard to damages. The Court of Appeals wrote
three separate opinions. Henry v Dow Chem Co, unpublished opinion of
the Court of Appeals, issued January 24, 2008 (Docket No. 266433).
Judge K
AREN
F
ORT
H
OOD
would have affirmed the trial court’s ruling
that the class should be certified, without qualification. Judge P
ATRICK
M
ETER
, in a partial concurrence and partial dissent, would have
certified the class “with regard to defendant’s potential liability,” but
believed that “with regard to damages, individual questions predomi-
nate over common questions.” Id. at1(M
ETER
, P.J., concurring in part
and dissenting in part). Therefore, he believed that “the damages
phase, should liability be established, must be dealt with on a
case-by-case basis.” Id. Judge K
IRSTEN
F
RANK
K
ELLY
would have re-
versed the trial court and held that the class could not be certified with
regard to any issues because she believed that “individual questions of
fact and law predominate over the issues common to the class such
that the commonality requirement of MCR 3.501(A) is not met.” Id. at
1 (K. F. K
ELLY
, J., dissenting).
Given that only one Court of Appeals judge held that bifurcation
was necessary, reading the Court of Appeals opinion to have reached a
holding regarding bifurcation requires cobbling together three diver-
gent applications of the commonality prerequisite in MCR 3.501(A)(1).
If this Court were to reverse the Court of Appeals holding concerning
the commonality prerequisite with regard to damages, there would be
no Court of Appeals “decision” requiring bifurcation. This Court
specifically granted leave on whether the commonality prerequisite
was met. Henry v Dow Chem Co, 482 Mich 1043 (2008) (ordering the
parties to address “whether the plaintiffs met all of the requisites for
class certification established in MCR 3.501[A][1], including the
requirement that questions of law or fact common to the members of
the class predominate over questions affecting only individual mem-
bers [the commonality prerequisite]”). Therefore, to the extent that
there was a Court of Appeals holding regarding bifurcation, it is
squarely before this Court.
508 484 M
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circuit court’s extensive familiarity with the complex
factual and legal issues presented, we do not think that
the circuit court abused its discretion by waiting to
determine to what extent bifurcation of the issues
involved may be needed.
IV. CONCLUSION
A party seeking class certification bears the burden
of establishing that each of the prerequisites for class
certification in MCR 3.501(A)(1) is in fact satisfied. It is
not sufficient for a certifying court to simply accept a
party’s assertion that the prerequisites are met. When
it is necessary to look beyond a party’s assertions in
order to assess whether the prerequisites for class
certification are met, a certifying court should do so
without delving into the merits of the underlying claims
involved.
Because the circuit court potentially used an evalua-
tive framework that is inconsistent with this Court’s
interpretation of the rule and articulation of the proper
analysis for class certification, we remand this case to
the circuit court so that it may at least clarify its
reasoning for ruling that MCR 3.501(A)(1)(c) and (d)
were met, in light of this Court’s decision today.
K
ELLY
, C.J., C
AVANAGH
and H
ATHAWAY
, JJ., concurred
with W
EAVER
,J.
K
ELLY
,C.J.(concurring). I fully agree with and sign
the majority opinion in this case. I write for the sole
purpose of responding to Justice Y
OUNG
’s comments
regarding the majority’s respect for the doctrine of
stare decisis. Justice Y
OUNG
repeats a claim that he and
Justices C
ORRIGAN
and M
ARKMAN
have published numer-
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ous times this term
1
with the same string of citations.
2
The claim is that their colleagues who comprise the
majority in this case have been ignoring precedent. A
review of the cases in the string citation serves to
illustrate that the claim is simply false.
Justice Y
OUNG
claims that in Vanslembrouck v Halp-
erin,
3
the Court ignored Vega v Lakeland Hosps.
4
How-
ever, Vanslembrouck is distinguishable from Vega be-
cause Vega determined that MCL 600.5851(1) is a
savings provision, whereas Vanslembrouck held that
MCL 600.5851(7) is a statute of limitations. Thus, these
cases examined the effect of altogether different statu-
tory provisions.
Justice Y
OUNG
also claims that in Hardacre v Sagi-
naw Vascular Services,
5
the Court failed to follow Boodt
v Borgess Med Ctr.
6
However, in Hardacre, the Court
denied leave to appeal because the allegations in the
plaintiff’s notice of intent to file an action did not need
to comply with Boodt. In Hardacre, the burden of
explication of the standard of care was minimal.
7
1
See, e.g., Petersen v Magna Corp, 484 Mich 300, 391-392; 773 NW2d
564 (2009) (M
ARKMAN
, J., dissenting); Chambers v Wayne Co Airport
Auth, 483 Mich 1081 (2009) (C
ORRIGAN
, J., dissenting); Scott v State
Farm Mut Auto Ins Co, 483 Mich 1032 (2009) (C
ORRIGAN
, J., dissenting);
Beasley v Michigan, 483 Mich 1025 (2009) (C
ORRIGAN
, J., dissenting);
Juarez v Holbrook, 483 Mich 970 (2009) (M
ARKMAN
, J., dissenting).
Justice Y
OUNG
joined the dissenting statements in Chambers, Scott,
Beasley, and Juarez.
2
Post at 528 n 28.
3
Vanslembrouck v Halperin, 483 Mich 965 (2009).
4
Vega v Lakeland Hosps at Niles-St Joseph, Inc, 479 Mich 243; 736
NW2d 561 (2007).
5
Hardacre v Saginaw Vascular Services, 483 Mich 918 (2009).
6
Boodt v Borgess Med Ctr, 481 Mich 558; 751 NW2d (2008).
7
See Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679,
694 n 12; 684 NW2d 711 (2004).
510 484 M
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Nor did the Court ignore precedents with which it
disagrees in Sazima v Shepherd Bar & Restaurant.
8
Justice Y
OUNG
claims that the Court failed to follow
Chrysler v Blue Arrow Transport Lines.
9
However, Sa-
zima involved exceptions to the “going and coming”
rule as set forth in Camburn v Northwest School Dist.
10
Thus, the Court was not bound by Chrysler.
Justice Y
OUNG
next claims the Court ignored Smith v
Khouri
11
when it decided Juarez v Holbrook.
12
However,
in Juarez, it was undisputed that the trial court per-
formed a reasonableness analysis in calculating the
proper attorney fee award. Therefore, a remand in light
of Smith was unnecessary.
Likewise, Justice Y
OUNG
is incorrect in claiming that
the Court failed to enforce Thornton v Allstate Ins Co
13
and Putkamer v Transamerica Ins Corp of America
14
in
Scott v State Farm Mut Auto Ins Co.
15
In Scott, the
Court of Appeals undertook a thorough analysis of the
relevant no-fault jurisprudence and applied precedent
as it has been understood for nearly 30 years.
Finally, the Court did not fail to abide by Rowland v
Washtenaw Co Rd Comm
16
,inChambers v Wayne Co
Airport Auth.
17
Chambers interpreted MCL 691.1406,
8
Sazima v Shepherd Bar & Restaurant, 483 Mich 924 (2009).
9
Chrysler v Blue Arrow Transport Lines, 295 Mich 606; 295 NW 331
(1940).
10
Camburn v Northwest School Dist, 459 Mich 471, 478; 592 NW2d 46
(1999).
11
Smith v Khouri, 481 Mich 519; 751 NW2d 472 (2008).
12
Juarez, supra.
13
Thornton v Allstate Ins Co, 425 Mich 643; 391 NW2d 320 (1986).
14
Putkamer v Transamerica Ins Corp of America, 454 Mich 626; 563
NW2d 683 (1997).
15
Scott, supra.
16
Rowland v W ashtenaw Co Rd Comm, 477 Mich 197; 731 NW2d 41
(2007).
17
Chambers, supra.
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while Rowland interpreted MCL 691.1404(1). Thus, the
cases dealt with different statutory provisions and the
Court was not bound to extend Rowland to the statute
at issue in Chambers.
In summary, the accusation that the Court has
been ignoring precedent is incorrect. Had other jus-
tices been in the majority in some of the decisions
complained about, they might well have extended
existing precedent to a new area of the law. But the
refusal of those in the majority in this case to so
extend precedent is quite different from a refusal on
their part to apply it. This is a distinction that
Justices Y
OUNG
,C
ORRIGAN
, and M
ARKMAN
would do
well to concede.
Y
OUNG
,J.(concurring in part and dissenting in part).
In this case, we are asked to review the trial court’s
certification of a plaintiff class consisting of approxi-
mately 2,000 landowners within the flood plain of the
Tittabawassee River. The Michigan Court Rules govern
the procedure for certifying class actions in Michigan
courts. MCR 3.501(A)(1) provides specific prerequisites
for proposed plaintiff classes. A party seeking class
certification bears the burden of proving that these
prerequisites are in fact met and must provide suffi-
cient information to the ruling court for it to make the
determination that the prerequisites are met. Because
part II of the majority opinion correctly articulates the
appropriate appellate standard of review for class cer-
tification decisions and part III(A) of the majority
opinion correctly articulates the appropriate legal stan-
dard a trial court must apply in ruling on a motion for
class certification, I join those sections of the majority
opinion.
While I would vacate the entirety of the trial court’s
class certification decision because it committed a legal
error by using the wrong legal standard in certifying the
512 484 M
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OUNG
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class, the majority determines only that the trial court’s
analysis of MCR 3.501(A)(1)(c) and (d) was insufficient
and requires further explanation. In doing so, the
majority also reverses sub silentio the determination of
the Court of Appeals majority limiting the scope of the
proposed class action to issues of liability only. I there-
fore dissent in part. Because I believe that the trial
court’s decision was wholly affected by its application of
an incorrect standard, I would vacate the class certifi-
cation in its entirety and remand to the trial court for a
completely new ruling on the motion for class certifica-
tion and limit any certification of the proposed class to
issues of liability. The trial court in this case expressly
indicated that it must “accept the allegations of the
plaintiff in support of the motion [for class certification]
as true.” This is inconsistent with the plain require-
ment of the court rules, which allow class certification
“only if” the prerequisites listed in MCR 3.501(A)(1)
are met, not merely alleged. I therefore would vacate its
class certification regarding liability in its entirety and
remand to the trial court so it can apply the appropriate
legal standard.
I also dissent from the majority’s decision to give
discretion to the trial court to certify the class on the
issue of damages. The plaintiffs did not cross-appeal the
decision of the Court of Appeals majority to vacate class
certification on the issue of damages, and therefore this
Court cannot vitiate this unappealed ruling of the Court
of Appeals.
I. FACTS AND PROCEDURAL HISTORY
Plaintiffs commenced the instant action against de-
fendant, Dow Chemical Company, for its alleged pollu-
tion of the Tittabawassee River. They claim that the
release of dioxin into the Tittabawassee River has
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either directly contaminated their properties or has
otherwise adversely affected their properties. They sub-
sequently moved for class certification. Plaintiffs’ pro-
posed class consists of all owners of real property in
Saginaw County within the 100-year flood plain of the
Tittabawassee River, as of February 1, 2002.
1
This
proposed class contains approximately 2,000 people.
Defendant opposed class certification.
After receiving supplemental briefs and hearing oral
arguments on the motion for class certification, the
Saginaw Circuit Court issued its opinion and order
granting class certification on October 21, 2005. At the
outset of its analysis, the court explained that it was
bound to accept the plaintiffs’ allegations supporting its
motion for class certification as true:
Due to the limited case law in Michigan addressing
certification of class action lawsuits, the Court can refer to
federal case law that interprets the federal rules on class
certification. Brenner v Marathon Oil Co, 222 Mich App
128, 133; 565 NW2d 1 (1997). When evaluating a motion
for class certification, the court is to accept the allegations
of the plaintiff in support of the motion as true. The merits
of the case are not examined. Allen v Chicago, 828 F Supp
543, 550 (ND Ill, 1993). The plaintiff bears the burden of
proving that the class should be certified. Id.
[
2
]
The court then listed the five requirements of class
certification and discussed plaintiffs’ allegations re-
garding each of these requirements. I reprint the trial
court’s analysis of the five requirements in its entirety:
1
A river’s “100-year flood plain” is the land area subject to the
floodwaters from a flood that has a one percent chance of occurring in any
given year. Accordingly, the land at the edge of the 100-year flood plain
has a one percent chance of being flooded with water from the Tittaba-
wassee River in any given year, while land closer to the river has a greater
chance of being flooded in any given year.
2
All citations have been converted to this Court’s standard format.
514 484 M
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a. The first requirement that the Plaintiffs must meet is
that “the class is so numerous that joinder of all members
is impracticable.” MCR 3.501(A)(1)(a). The Plaintiffs de-
fine the potential class as:
“All persons who owned real property within the one-
hundred year Flood Plain of the Tittabawassee River in
Saginaw County, Michigan on February 1, 2002. For pur-
poses of this class definition, the one-hundred year Flood
Plain of the Tittabawassee River is defined as the geo-
graphic area set forth on the map attached as Exhibit A
(Exhibit B attached to this order), which is generally
bounded on the west and south by River Road and Stroebel
Road, including property on the west and south side of such
roads, and generally bounded on the east and north by
Midland Road, St. Andrews Road, and Michigan Avenue,
including property on the east and north sides of such
roads and avenue.”
The Plaintiffs also allege and the Court finds that there
would be approximately 2,000 persons in the proposed
class. The Court finds that the class is so numerous that
joinder of all members is impracticable.
b. There are questions of law or fact common to the
members of the class that predominate over questions
affecting only individual members.
All of the Plaintiffs’ claims are based on the allegation
that the Defendant polluted the Tittabawassee River, caus-
ing damage to the Plaintiffs in the form of reduced value of
their home and property. Therefore, the alleged negligence
of the Defendant, if any, as to the cause of the alleged
pollution is common to all potential Plaintiffs. Equally, any
questions of law would be common to the entire class.
Although the question of damages may be individualized,
the mere fact that damages may have to be computed
individually is not enough to defeat a class action. As the
Court stated in Sterling v Velsicol Chem Corp, 855 F2d
1188, 1197 (CA 6, 1988):
“No matter how individualized the issues of damages
may be, these issues may be reserved for individual treat-
ment with the question of liability tried as a class action.
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Consequently, the mere fact that questions peculiar to each
individual member of the class remaining [sic] after the
common questions of the defendant’s liability have been
resolved does not dictate the conclusion that a class action
is impermissible.” See also Dix v Am Bankers Life Assur-
ance Co, 429 Mich 410, 417-419; 415 NW2d 206 (1987), and
the more recent case of Mejdrech v Met-Coil Sys Corp, 319
F3d 910 (CA 7, 2003).
This Court finds that there are questions of law or fact
common to the members of the class that predominate over
questions affecting only individual members.
c. The claims or defenses of the representative parties
are typical of the claims or defenses of the class.
In this case, Plaintiffs contend that their property
claims arise from the same course of conduct by Defendant
Dow and that they share common legal and remedial
theories with the members of the class. The court in Cook
v Rockwell Int’l Corp, 151 FRD 378 (D Colo, 1993), stated:
“So long as there is a nexus between the class representa-
tives’ claims [and] defenses and the common questions of
fact or law which unite the class the typicality requirement
is satisfied (citations omitted).... The positions of the
named plaintiffs and the potential class members do not
have to be identical. Thus, the requirement may be satis-
fied even though varying fact patterns support the claims
or defenses of individual class members or there is a
disparity in the damages claimed by the representative
parties and the other members of the class. The court finds
that the representative parties’ claims are not adverse or
antagonistic to others in the class. Therefore, the court
finds that the claims or defenses of all of the representative
parties are typical of the claims or defenses of the class and
are not antagonistic to the class.”
d. The representative parties will fairly and adequately
assert and protect the interest of the class.
There presently are approximately seven Plaintiffs who
are the representative parties. Further, no proof has been
submitted to this Court that would indicate that the
516 484 M
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Plaintiffs herein, the representative parties, would not
fairly and adequately assert and protect the interest of the
class.
e. The maintenance of the action as a class action will be
superior to other available methods of adjudication in
promoting the convenient administration of justice.
To deny a class action in this case and allow the
Plaintiffs to pursue individual claims would result in up to
2,000 individual claims being filed in this Court. Such a
result would impede the convenient administration of
justice. Further, such a procedure would or could result in
inconsistent or varying adjudications with respect to indi-
vidual members of the class. A class action would also
assure legal assistance to the members of the class. More-
over, a class action would achieve economy of time, effort
and expense. The Court specifically finds that the action
would be manageable as a class action based on the facts
and the reasons set forth herein. Each member of the class
lives in the area alleged to have been damaged. Each
member of the class allegedly suffered damages as a result
of the release of contaminates in the Tittabawassee River.
Almost identical evidence would be required to establish
negligence and causal connection between the alleged toxic
contamination and Plaintiffs’ damages and the type of
damages allegedly suffered. The Court stated in Sterling v
Velsicol Chem Corp, supra at 1197:
“In the instant case, each class member lived in the
vicinity of the landfill and allegedly suffered damages as a
result of ingesting or otherwise using the contaminated
water. Almost identical evidence would be required to
establish the level and duration of chemical contamination,
the causal connection, if any, between the plaintiffs’ con-
sumption of the contaminated water and the type of
injuries allegedly suffered and the defendant’s liability. A
single major issue distinguishing the class members is the
nature and amount of damages, if any, that each sustained.
To this extent, a class action in the instant case avoided
duplication of judicial effort and prevented separate actions
from reaching inconsistent results with similar, if not
identical, facts. The district court clearly did not abuse its
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discretion in certifying this action as a rule of [sic] 23(b)(3)
class action. However, individual members of the class still
would be required to submit evidence concerning their
particularized damages, damage claims and subsequent
proceedings.”
The Court finds that the maintenance of the action as a
class action will be superior to other available methods of
adjudication in promoting the convenient administration
of justice.
[
3
]
The Court of Appeals rendered three individual opin-
ions in ruling on defendant’s appeal. Judge M
ETER
and
Judge F
ORT
H
OOD
affirmed the trial court’s certification
with regard to the issue of Dow’s liability,
4
while Judge
M
ETER
and Judge K. F. K
ELLY
determined that the
individual issues predominate over class-wide issues
with respect to damages.
5
Defendant appeals the Court
of Appeals judgment and claims that the trial court
erred in certifying the plaintiff class.
6
It argues that
certification should be vacated, first, because the trial
court applied an erroneous legal standard in accepting
plaintiffs’ allegations in support of their motion for
class certification as true and, second, because plain-
tiffs’ proposed class fails as a matter of law.
II. STANDARD OF REVIEW
This Court has not expressly established a standard
for reviewing certification of a class action, although in
a peremptory order we impliedly reviewed a class cer-
3
All citations have been converted to this Court’s standard format.
4
Henry v Dow Chem Co, unpublished opinion per curiam of the Court
of Appeals, issued January 24, 2008 (Docket No. 266433) (opinion by
F
ORT
H
OOD
, J.). Accord id. (M
ETER
,P.J., concurring in part and dissenting
in part).
5
Id. (M
ETER
,P.J., concurring in part and dissenting in part). Accord id.
(K.F.K
ELLY
, J., dissenting).
6
Plaintiffs did not file a cross-appeal of the Court of Appeals’ ruling
that damages must be determined individually.
518 484 M
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tification decision for clear error.
7
The Court of Appeals
has accordingly employed a clear error standard.
8
“In
Michigan, the clear error standard has historically been
applied when reviewing a trial court’s factual findings,
whereas the abuse of discretion standard is applied
when reviewing matters left to the trial court’s discre-
tion.”
9
I concur in part II of the majority opinion and
agree that legal determinations are reviewed under a de
novo standard, that findings of fact are reviewed under
a clear error standard, and the court’s ultimate certifi-
cation decision is reviewed for abuse of discretion. An
abuse of discretion occurs when the trial court’s deci-
sion is outside the range of reasonable and principled
outcomes.
10
III. TO BE CERTIFIED AS A CLASS OF PLAINTIFFS
IN MICHIGAN COURTS, THE REQUIREMENTS PROVIDED IN
MCR 3.501 MUST, IN FACT,BEMET
The Michigan Court Rules govern the certification of
class actions. MCR 3.501(A)(1) provides:
One or more members of a class may sue or be sued as
representative parties on behalf of all members in a class
action only if:
(a) the class is so numerous that joinder of all members
is impracticable;
(b) there are questions of law or fact common to the
members of the class that predominate over questions
affecting only individual members;
(c) the claims or defenses of the representative parties
are typical of the claims or defenses of the class;
7
Hill v City of Warren, 469 Mich 964 (2003).
8
See, e.g., Neal v James, 252 Mich App 12, 15; 651 NW2d 181 (2002).
9
Herald Co, Inc v Eastern Michigan Univ Bd of Regents, 475 Mich 463,
471; 719 NW2d 19 (2006).
10
Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809
(2006).
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(d) the representative parties will fairly and adequately
assert and protect the interests of the class; and
(e) the maintenance of the action as a class action will be
superior to other available methods of adjudication in
promoting the convenient administration of justice.
[
11
]
The plain language of MCR 3.501(A)(1) is clear: repre-
sentative plaintiffs may pursue a class action lawsuit
“only if” the enumerated prerequisites have been met.
The procedure for certifying a class in Michigan
underscores this requirement. Because a “plaintiff
must move for certification that the action may be
maintained as a class action,”
12
the plaintiff bears the
burden of satisfying the trial court by a preponderance
of the evidence that the prerequisites to class certifica-
tion have been met. Moreover, once the plaintiff moves
to certify a class, the trial court “may allow the action to
be maintained as a class action, may deny the motion,
or may order that a ruling be postponed pending
discovery or other preliminary procedures.”
13
In other
words, MCR 3.501 expressly contemplates that the trial
court should make an independent determination that
the proposed class meets the requirements for class
certification. Thus, a trial court may certify a class only
if the plaintiffs have provided sufficient information
that each prerequisite to class certification has been
met. Because part III(A) of the majority opinion cor-
rectly articulates this standard, I join that section of the
opinion.
I also concur in the majority’s decision to overrule
Neal v James
14
to the extent it “require[s] a trial court
11
MCR 3.501(A)(1) (emphasis added).
12
MCR 3.501(B)(1)(a).
13
MCR 3.501(B)(3)(b).
14
Neal, 252 Mich App 12.
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to accept as true a plaintiff’s bare assertion that a class
certification prerequisite is met....”
15
The Court of
Appeals in Neal held that a trial court must “accept the
allegations made in support of the request for certifica-
tion as true.”
16
Although the trial court in the instant
case did not expressly indicate its reliance on Neal,asa
published Court of Appeals decision, it is binding on all
lower courts.
17
The requirement in Neal that a certify-
ing court is bound to accept the plaintiffs’ allegations
supporting its motion for class certification as true,
however, is inconsistent with the plain meaning of MCR
3.501 as articulated above. Moreover, it cites stale
federal precedent for its statement of law.
18
Accordingly,
15
Ante at 505 n 39.
16
Neal, 252 Mich App at 15. Neal has subsequently been cited for this
proposition in a published opinion of the Court of Appeals. See Duncan v
Michigan, 284 Mich App 246, 329; 774 NW2d 89 (2009).
17
MCR 7.215(C)(2).
18
Both the Neal Court and the instant trial court cited a stale federal
district court case for the proposition that a trial court is bound to accept
the plaintiff’s pleadings on behalf of the motion for certification as true.
Allen v Chicago, 828 F Supp 543, 550 (ND Ill, 1993) (“In evaluating the
motion for class certification, the allegations made in support of certifi-
cation are taken as true....”). However, the United States Court of
Appeals for the Seventh Circuit subsequently undermined Allen in Szabo
v Bridgeport Machines, Inc, 249 F3d 672, 676 (CA 7, 2001), which
precluded courts from relying uncritically on the allegations contained in
motions for class certification: “Before deciding whether to allow a case to
proceed as a class action, . . . a judge should make whatever factual and
legal inquiries are necessary under [Federal] Rule [of Civil Procedure]
23.” Therefore, even if a Michigan court “can refer to federal cases
construing the federal rules on class certification,” Neal, 252 Mich App at
15, it should look only to cases that remain good law.
Applicable federal caselaw does not require that trial courts accept the
allegations in support of the motion for class certification as true. Indeed,
the United States Supreme Court expressly negated that principle. Gen
Tel Co of the Southwest v Falcon, 457 US 147, 160; 102 S Ct 2364; 72 L
Ed 2d 740 (1982). The Court of Appeals’ citation of Falcon in Duskin v
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I concur with the majority that Neal is overruled to the
extent that it is inconsistent with the rule of law
articulated today.
IV. THE TRIAL COURT ERRED BY CERTIFYING THE CLASS
TO THE EXTENT IT STATED AND APPLIED AN
ERRONEOUS STANDARD OF LAW
A. THE TRIAL COURT ARTICULATED AN ERRONEOUS
STANDARD OF LAW
Before certifying the plaintiff class, the trial court
sought briefing and conducted extensive oral argu-
ments on the motion for class certification. Neverthe-
less, even though it did so, the trial court’s opinion
made no mention of these facts. Instead, the trial
court prefaced its ruling by explaining that “[w]hen
evaluating a motion for class certification, the court
is to accept the allegations of the plaintiff in support
of the motion as true.” This statement has meaning, and
its meaning completely rebuts plaintiffs’ claim that the
trial court conducted the appropriate analysis in making
its ruling on class certification. The trial court’s statement
indicates that it approached its analysis without the
appropriate analytical independence from plaintiffs’
Dep’t of Human Services, 284 Mich App 400, 409; 775 NW2d 801 (2009),
is consistent with the use of applicable federal precedent.
While federal caselaw may be helpful in interpreting a similarly
worded but ambiguous provision in the Michigan Court Rules, courts
must not forget that it is the Michigan Court Rules that they are
interpreting. Accordingly, federal caselaw interpreting the Federal
Rules of Civil Procedure can be instructive at most, but never
controlling. As explained earlier, the plain language of MCR
3.501(A)(1) requires that the prerequisites for class certification must
in fact be met before a trial court can certify a class of plaintiffs. That
federal caselaw interprets FR Civ P 23 similarly is fortuitous but
ultimately of less import than the actual text of the Michigan Court
Rules.
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allegations supporting class certification. It is appropri-
ate to vacate the trial court’s certification for this legal
error alone.
19
B. THE TRIAL COURT APPLIED AN ERRONEOUS STANDARD OF LAW
Moreover, a critical reading of the trial court’s actual
ruling underscores the inappropriate deference that the
trial court afforded plaintiffs’ pleadings on the motion
for class certification. For example, in concluding that
“there are questions of law or fact common to the
members of the class that predominate over questions
affecting only individual members,”
20
the trial court
merely reiterated plaintiffs’ claims without discussing
the arguments that defendant proffered in opposition to
the motion.
Defendant’s trial brief listed several questions of law
or fact that it alleged required individualized determi-
nation:
• How each proposed property class member uses and
enjoys his, her[,] or its property (when, in fact, there are a
vast array of different types of commercial, industrial,
agricultural, residential, governmental, non-profit and
other entities in the 20-mile-long proposed property class
area, and each proposed class member uses and enjoys his,
her[,] or its property in ways different from others);
• Whether each proposed class member has suffered a
substantial and unreasonable interference with use and
19
The trial court’s statement that “[t]he plaintiff bears the burden of
proving that the class should be certified” does not cure any defect it
caused by saying it was bound to accept plaintiffs’ allegations supporting
class certification as true. If plaintiffs’ allegations supporting class
certification must be accepted as true, as the trial court stated, then
plaintiffs can meet their burden of proof merely by alleging that the
requirements for class certification have been met.
20
MCR 3.501(A)(1)(b).
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enjoyment as a result of misconduct by Dow (when, in fact,
such proposed class members already have testified that
they have not suffered any such interference, and the
alleged interferences from others are highly variable and
dissimilar);
• Whether the different levels of dioxin on class prop-
erties constitute an unreasonable and substantial interfer-
ence with use and enjoyment (when, in fact, the levels
differ significantly from each other, such that some pro-
posed class members have no level of dioxin on their soil in
excess of levels upstream of Dow, some have no level of
dioxin on their soil in excess of the [Department of Envi-
ronmental Quality’s (DEQ’s)] direct contact criteria, and
other proposed class members have higher levels);
• What duty (if any) Dow owes to each particular
proposed class member (when, in fact, different types of
dioxin have been deposited on different proposed class
properties at different times over the past 100 years, by
potentially many different entities, who would have faced
vastly different standards of care and states of the art at
the time of such deposits and, even focusing on the most
current version of the DEQ’s direct action criteria (which
were not applicable until recently), different DEQ criteria
apply to different types of property within the class, and
those criteria differ from applicable federal criteria);
• Whether Dow violated any duty owed to different
proposed class members (when, in fact, the various levels of
dioxin on the different properties fall both above and below
the various potential standards of care that could have
been in effect over the past 100 years);
• Whether any proposed class member’s property value
was injured (when, in fact, many proposed class members
already have sold their class properties at a substantial profit,
including some who received more than their asking price
and others who have sold for more than their recently
appraised value, whereas others have no interest in ever
selling their property, and others refuse to sell, and still others
contend their property has been rendered “worthless”);
***
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• Whether and how each proposed class member is
situated vis-à-vis Dow’s defenses, including the statute of
limitations (when, in fact, many proposed class members
have believed for many years that Dow polluted the Tit-
tabawassee River, including with dioxin, and thereby di-
minished the use and enjoyment and value of proposed
class properties).
Thus, defendant raised several issues in this case that
may require individualized determination, and that
therefore may bar class certification under MCR
3.501(A)(1)(b). Even if these concerns ultimately do not
preclude class certification, the issues raised are ones
that a trial court would have rebutted or explained if it
had conducted an independent inquiry into whether the
prerequisites of class certification had in fact been met.
The trial court’s failure to respond to any of these
claims in its ruling, therefore, belies plaintiffs’ conten-
tion that the trial court conducted an appropriate
analysis of whether plaintiffs’ proposed class met the
requirements for class certification. Moreover, it belies
the majority’s assumption that the trial court con-
ducted an appropriate analysis of some of the class
certification prerequisites, as the predomination pre-
requisite is one in which the majority concluded that
“the circuit court appears to have independently deter-
mined that plaintiffs alleged a statement of basic facts
and law sufficient to support [the] prerequisite[]....”
21
Because the trial court failed to address defendant’s
arguments in opposition to class certification, not only
did it articulate a legal standard that was inconsistent
with the plain meaning of the Michigan Court Rules,
but it also applied that inappropriate standard in grant-
ing class certification. Accordingly, class certification
21
Ante at 506.
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must be vacated in its entirety, and this case must be
remanded to the trial court for reconsideration of all
the class certification prerequisites in light of the ap-
propriate legal standard.
C. INSTRUCTIONS FOR REMAND
On remand, the trial court must determine whether
plaintiffs’ proposed class in fact meets the prerequisites
for class certification contained in MCR 3.501(A)(1).
22
If
the trial court determines that the proposed class meets
the prerequisites for class certification, then the trial
court may certify the proposed class. However, if it
certifies the same class, it may only certify that class
with regard to the issue of Dow’s liability. Two judges
on the Court of Appeals held that, as a matter of law,
damages must be determined in individual proceed-
ings.
23
I would not disturb that holding; indeed, plain-
tiffs did not file a cross-appeal to dispute the majority’s
determination that proceedings to determine damages
must be bifurcated from any class action regarding
Dow’s liability. Accordingly, I would preclude the trial
court from certifying the proposed class on the issue of
damages, since that legal issue has been settled for the
purposes of this litigation.
24
22
Pursuant to MCR 3.501(B)(3)(d)(ii), the trial court may instead
divide the proposed class “into separate classes with each treated as a
class for purposes of certifying [or] denying certification....”
23
Henry, supra (M
ETER
,P.J., concurring in part and dissenting in part);
id.; (K. F. K
ELLY
, J., dissenting).
24
Moreover, the law of the case doctrine would preclude a subsequent
appellate court from certifying the proposed class on the issue of damages.
CAF Investment Co v Saginaw Twp, 410 Mich 428, 454; 302 NW2d 164
(1981) (“[I]f 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.”).
526 484 M
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The majority has reversed the Court of Appeals
majority’s decision that bifurcation on damages is re-
quired. Although it claims that it “do[es] not reach the
question of if, and to what extent, the issues involved in
this case should be ‘bifurcated,’ ”
25
it does so by subter-
fuge in claiming that it “do[es] not think that the circuit
court abused its discretion by waiting to determine to
what extent bifurcation of the issues involved may be
needed.”
26
This is in direct contradiction of the majority
position of the Court of Appeals, which states unequivo-
cally that “with regard to damages, individualized ques-
tions prevail.”
27
This gross violation of our procedural
rules is yet another indication of the majority’s now
familiar approach to seek its desired result whatever
25
Ante at 507.
26
Ante at 509.
27
Henry, supra at1(M
ETER
, P.J., concurring in part and dissenting in
part). Accord id. at6(K.F.K
ELLY
, J., dissenting). The majority posits
that I am “misreading” the Court of Appeals opinions by “cobbling
together three divergent” opinions to come to my conclusion that two
judges would have reversed the trial court’s certification with respect
to damages. Ante at 508 n 42. I see no other way of interpreting the
three Court of Appeals opinions. Though fractured, they reach a clear
result. Judge F
ORT
H
OOD
would have affirmed class certification
entirely; Judge M
ETER
would have affirmed class certification only
with respect to questions of liability; and Judge K. F. K
ELLY
would have
vacated class certification entirely. While only one Court of Appeals
judge specifically mandated “bifurcation,” that result is the only way
of reconciling the three divergent Court of Appeals positions. In any
event, that result was not appealed by the plaintiffs and, as a result of
the majority’s opinion, plaintiffs are in a better position than they
would have been had defendant not appealed. The only principled basis
for avoiding the Court of Appeals ruling on damages would be if a
different class were certified. However, this principled approach is
unavailable to the majority because it preserves part of the class
certification the trial court rendered and requires only that the trial
court reconsider portions of its analysis. Thus, unless the trial court
declines to certify on remand or certifies a different class, the majority
has enhanced plaintiffs’ position.
2009] H
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the consequences.
28
The plaintiffs, appellees to this
case, have not filed a cross-appeal of the Court of
Appeals majority’s decision requiring that damages be
determined on an individualized basis. It is a basic
principle of appellate procedure that appellees who
have not cross-appealed “may not obtain a decision
more favorable to them than was rendered by the Court
of Appeals.”
29
The majority’s failure to follow this basic
28
The majority’s determination to ignore facts and precedent inconve-
nient to its desired outcome has become its modus operandi. See, e.g.,
Vanslembrouck v Halperin, 483 Mich 965 (2009), where the new majority
ignored Vega v Lakeland Hospitals at Niles & St Joseph, Inc, 479 Mich
243, 244; 736 NW2d 561 (2007); Hardacre v Saginaw Vascular Services,
483 Mich 918 (2009), where it failed to follow Boodt v Borgess Med Ctr,
481 Mich 558; 751 NW2d 44 (2008); Sazima v Shepherd Bar & Restau-
rant, 483 Mich 924 (2009), where it failed to follow Chrysler v Blue Arrow
Transport Lines, 295 Mich 606; 295 NW 331 (1940), and Camburn v
Northwest School Dist, 459 Mich 471; 592 NW2d 46 (1999); Juarez v
Holbrook, 483 Mich 970 (2009), where it failed to follow Smith v Khouri,
481 Mich 519; 751 NW2d 472 (2008); Chambers v Wayne Co Airport Auth,
483 Mich 1081 (2009), where it failed to follow Rowland v Washtenaw Co
Rd Comm, 477 Mich 197; 731 NW2d 41 (2007); and Scott v State Farm
Mut Auto Ins Co, 483 Mich 1032 (2009), where it failed to enforce
Thornton v Allstate Ins Co, 425 Mich 643; 391 NW2d 320 (1986), and
Putkamer v Transamerica Ins Corp of America, 454 Mich 626; 563 NW2d
683 (1997). Chief Justice K
ELLY
contends, as she has elsewhere, that “the
accusation that the Court has been ignoring precedent is incorrect.” Ante
at 512. See also Potter v McLeary, 484 Mich 397, 426-428; 774 NW2d 1
(2009) (K
ELLY
, C.J., concurring) and Beasley v Michigan, 483 Mich 1025,
1025-1027 (2009) (K
ELLY
, C.J., concurring). This response has been
repeatedly answered in detail. See Beasley, 483 Mich at 1027-1030
(C
ORRIGAN
, J., dissenting); Potter, 484 Mich at 476-481 (M
ARKMAN
,J.,
concurring in part and dissenting in part). More importantly, Chief
Justice K
ELLY
’s response fails to address the fundamental problem that
“[leaving] intact precedents that were inconsistent with new decisions
essentially allow[s] future litigants to choose among inconsistent prece-
dents as in columns A and B of a Chinese restaurant menu.” Rowland,
477 Mich at 227 (emphasis and punctuation omitted).
29
McCardel v Smolen, 404 Mich 89, 94-95; 273 NW2d 3 (1978). See also
Pontiac Twp v Featherstone, 319 Mich 382, 390; 29 NW2d 898 (1947) (“In
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principle of law by declaring that the trial court has
discretion not to follow the binding decision of the Court
of Appeals, where the majority does not even state that
it is reversing any part of the Court of Appeals’ judg-
ment, is contrary to this Court’s precedent and unwor-
thy of a Court committed to the rule of law.
30
V. CONCLUSION
The party seeking certification of a class under MCR
3.501 bears the burden of establishing by a preponder-
ance of the evidence that its proposed class in fact meets
the requirements for class certification as articulated in
the Michigan Court Rules. The trial court, therefore, is
not bound to accept the allegations of the moving party,
but rather must make an independent finding that the
prerequisites of class certification have been met. Be-
cause the trial court in the instant case did not make
such an independent determination, I would vacate
class certification in its entirety and remand this case to
the circuit court for further proceedings consistent with
this opinion. I would not disturb the Court of Appeals
majority’s decision that the proposed class may not be
certified on the issue of damages.
C
ORRIGAN
and M
ARKMAN
, JJ., concurred with Y
OUNG
,
J.
the absence of a cross appeal, errors claimed to be prejudicial to appellee
cannot be considered nor may appellee have enlargement of relief.”).
30
Our order granting leave to appeal asked the parties to brief four
issues. Henry v Dow Chem Co, 482 Mich 1043 (2008). Needless to say, due
the lack of a cross-appeal, we did not ask the parties to brief whether the
Court of Appeals had erred in holding that the trial court had erred in
granting class certification regarding the issue of damages. All appellate
practitioners should take careful note of today’s decision, because an
appellant is ending up in a worse position than it was in under the Court
of Appeals decision that it appealed, even though no cross-appeal was
filed.
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C
ORRIGAN
,J.(concurring in the opinion of Y
OUNG
, J.).
I join Justice Y
OUNG
’s opinion in full. I write separately in
order to discuss additional issues raised by this appeal
that I believe the trial court should consider on remand
before again certifying a class in this case. The trial court’s
October 21, 2005, opinion and order granting class certi-
fication formally defined the class to include “all persons
who owned real property within the one-hundred year
Flood Plain of the Tittabawassee River in Saginaw
County, Michigan, on February 1, 2002.” The class defini-
tion also included a geographic description of the relevant
flood plain. But the definition did not limit the class to
those property owners who are actually injured by pollu-
tion emanating from the activities of defendant, Dow
Chemical Company. Rather, the order defined the class
broadly to include all of the approximately 2,000 persons
who owned property on approximately 13,000 acres of
land. I conclude that such an indiscriminate, overbroad
definition of the class failed to comport either with MCR
3.501 or with the precedent cited in the trial court’s order
because it included numerous class members with no
present injuries.
Further, such an overbroad class definition would be
likely to have significant, negative effects on the hun-
dreds of purported class members who indeed may have
no present injuries. It is striking that only about 170
landowners had elected to join this suit as plaintiffs at
the time of the trial court’s certification decision.
1
The
1
Indeed, although I agree with Justice Y
OUNG
that the trial court should
reconsider whether the proposed class satisfied each criterion for class
certification on the question of Dow’s liability, I agree with the majority that
the record presents particularly problematic unanswered questions concern-
ing whether the representative plaintiffs’ claims are typical of those of the
proposed class, MCR 3.501(A)(1)(c), and whether plaintiffs will “fairly and
adequately assert and protect the interests of the class” as class represen-
tatives, MCR 3.501(A)(1)(d). See ante at 506-507.
530 484 M
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owners of property with no present injuries may rea-
sonably wish not to be included in the class because
certification of their otherwise unharmed property may
itself guarantee reduction in their property values;
these landowners will never recover against Dow be-
cause they cannot allege damages under negligence or
nuisance theories, but their property values may col-
lapse further simply as a result of their being lumped
into the class.
For this reason, if the trial court on remand again
concludes that certification of a class is proper, I would
direct the court to limit the class to those property owners
with actual injuries as a result of Dow’s activities.
THE ACTUAL INJURY REQUIREMENT
It is axiomatic that each member of a plaintiff class
must have suffered an actionable injury, which is a pre-
requisite of any tort claim. “[C]lass members must have
suffered actual injury to have standing to sue....”Zine v
Chrysler Corp, 236 Mich App 261, 288; 600 NW2d 384
(1999). As the United States Supreme Court opined in
Gen Tel Co of the Southwest v Falcon, 457 US 147, 156;
102 S Ct 2364; 72 L Ed 2d 740 (1982): “We have repeatedly
held that a class representative must be part of the class
and possess the same interest and suffer the same injury
as the class members.” (Emphasis added; citation and
quotation marks omitted.) Michigan cases similarly re-
quire plaintiffs to “demonstrate with common proof that
the members of the class have suffered a common injury.”
A & M Supply Co v Microsoft Corp, 252 Mich App 580,
599-600; 654 NW2d 572 (2002) (emphasis added).
Likewise, the federal toxic tort cases relied on by
plaintiffs and the trial court involved certification of
classes explicitly defined by reference to the members’
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present injuries. For example, the discussion in Sterling
v Velsicol Chem Corp, 855 F2d 1188, 1197 (CA 6, 1988),
which the trial court quoted at length in its October 21,
2005, order, addressed a class of residents who alleged
that they “suffered damages as a result of ingesting or
otherwise using...contaminated water.” Sterling in-
volved plaintiffs who lived near a landfill from which
toxic chemicals seeped into the ground, contaminating
soil and groundwater. Much as in the present case,
because several wells near the site tested positive for
contamination, all residents within 1,000 acres of the
site were advised to stop using their wells for any
purpose. Several residents sued under theories includ-
ing nuisance and negligence. Id. at 1192-1194. The
United States Court of Appeals for the Sixth Circuit
affirmed class certification. But the class did not indis-
criminately include every resident within the 1,000-acre
area; rather, Sterling’s discussion and holding presup-
pose that each class member had a present injury
because “each class member lived in the vicinity of the
landfill and allegedly suffered damages as a result of
ingesting or otherwise using the contaminated water.”
Id. at 1197 (emphasis added). Similarly, the class in
Olden v Lafarge Corp, 383 F3d 495, 507 (CA 6, 2004),
was expressly defined as “all owners of single family
residences in the City of Alpena whose persons or
property was damaged by toxic pollutants and contami-
nants which originated from the Lafarge cement manu-
facturing facility ....”(Emphasis added.) In contrast,
as noted, the class certified here broadly included “all
persons who owned real property” within the 100-year
flood plain, without reference to whether such persons
could allege harm as a result of Dow’s activities. Be-
cause it is apparent that such an overbroad class cannot
all allege cognizable claims, I conclude that plaintiffs’
proposed class definition is flawed.
532 484 M
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PRESENT INJURIES UNDER THE TORTS ALLEGED
Plaintiffs sued under negligence and nuisance theo-
ries. To prove negligence, “a plaintiff must demonstrate
a present physical injury to person or property in
addition to economic losses that result from that in-
jury.” Henry v Dow Chem Co, 473 Mich 63, 75-76; 701
NW2d 684 (2005) (Henry I) (emphasis in original).
Henry I created a bright line rule by unambiguously
requiring a plaintiff alleging negligence to prove present
physical injury. Here, plaintiffs cannot show that each
land parcel in the 100-year flood plain is presently
contaminated with pollution alleged to have originated
from Dow’s activities. Indeed, studies by the Michigan
Department of Environmental Quality (DEQ) expressly
show that some of the land is not contaminated. Be-
cause the owners of uncontaminated property do not
have present physical injuries, they cannot allege neg-
ligence under Michigan law.
Accordingly, plaintiffs argue that even the uncon-
taminated properties suffer present injury in fact under
a nuisance theory because they may become contami-
nated in the future. But Dow correctly argues that the
purported injury in fact to many of these properties is
too speculative to be recognized in Michigan.
To prove private nuisance, a plaintiff must show
substantial interference with the use and enjoyment of
his land. Adkins v Thomas Solvent Co, 440 Mich 293,
303-304; 487 NW2d 715 (1992).
2
Because a nuisance is
a “nontrespassory invasion,” a plaintiff need not show
physical intrusion upon his land to prove nuisance. Id.
at 302.
2
Public nuisance, on the other hand, requires proof of an “unreason-
able interference with a right common to all members of the general
public.” Adkins, 440 Mich at 304 n 8. Plaintiffs alleged both public and
private nuisance theories.
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There are countless ways to interfere with the use and
enjoyment of land including interference with the physical
condition of the land itself, disturbance in the comfort or
conveniences of the occupant including his peace of mind,
and threat of future injury that is a present menace and
interference with enjoyment. [Id. at 303.]
Significantly, although nuisance may involve “ ‘threat-
ening or impending danger,’ ” id., quoting Kilts v Kent
Co Supervisors, 162 Mich 646, 651; 127 NW 821 (1910),
a plaintiff cannot prove nuisance “where damage and
injury are both predicated on unfounded fear of third
parties that depreciates property values,” id. at 312.
“[P]roperty depreciation alone is insufficient to consti-
tute a nuisance.” Id. at 311.
Here, the facts presented by plaintiffs do not suggest
that all or even most of the 2,000 proposed class
members can allege cognizable nuisance claims. As
noted, the DEQ reports that many parcels of land are
not physically contaminated. Many more parcels have
not even been tested, were never subject to flooding,
and are very unlikely to experience flooding even during
the next century. Crucially, the DEQ’s restrictions apply
only to contaminated or frequently flooded land—not to
all land in the 100-year flood plain.
3
Because the class
3
The March 15, 2004, declaration of Andrew W. Hogarth, chief of the
DEQ’s Remediation and Redevelopment Division, specifies that only
“locations where dioxin concentrations exceed the residential direct
contact criteria” are a designated “facility” for purposes of state restric-
tions on contaminated land, which include the requirement to inform
potential buyers of dioxin contamination. He states that the DEQ also
“believes” that property “subject to frequent flooding by the Tittabawas-
see River downstream of Midland is a facility.” He avers that residents
were specifically informed of these definitions in the DEQ’s June 2003
Information Bulletin No. 3. As Dow observes, there is no evidence to
suggest that uncontaminated property with a low likelihood of flooding in
a given year is “subject to frequent flooding” or otherwise designated a
“facility” by the DEQ’s terms. Similarly, the DEQ’s Information Bulletin
No. 4, dated March 2004, identified precautions that residents of the
534 484 M
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was defined on the sole basis of the geographic bound-
aries of the 100-year flood plain, much of the circum-
scribed land has only a one percent chance of flooding in
a given year. See ante at514n1(Y
OUNG
, J.). Moreover,
the degree of risk of contamination from future flooding
is questionable and somewhat speculative; Dow has
already altered its activities and begun remediating
past contamination of the river as was required, in part,
by the DEQ.
4
Accordingly, although some landowners may be able
to allege present harm from nuisance, many residents
of the flood plain certainly cannot. Indeed, the land that
is not presently contaminated, that has a low risk of
flooding in the future, and that has a largely speculative
risk of actual contamination as a result of future
flooding, is comparable to the land in Adkins where the
plaintiffs sought damages based on diminished property
values they alleged were caused by contamination in the
surrounding area. These plaintiffs’ land was not actu-
ally contaminated; a groundwater divide prevented the
migration of toxic chemicals from the surrounding land.
Adkins, 440 Mich at 299-300, 318. The Court held that
fear-based diminution in property values was an insuf-
ficient basis for relief, stating:
Under such a theory, a cause of action could be stated on
behalf of any individual who could demonstrate an effect
on property values even if the polluted ground water had
flood plain could take “to reduce exposure to dioxins from the identified
areas of contamination.” (Emphasis added.) By their terms, these guide-
lines do not apply to uncontaminated soil.
4
I also note, as the DEQ observed in its June 2003, Phase II Final
Report, the presence of uncontaminated properties within the 100-year
flood plain that are elevated above the flood level as a result of “local
natural features or the introduction of clean fill material.” Obviously
these properties also have a low risk of future contamination from
flooding.
2009] H
ENRY V
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535
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ORRIGAN
,J.
neither strayed from defendants’ own property, nor dis-
turbed a plaintiff’s enjoyment by the fear that it would do
so.
If any property owner in the vicinity of the numerous
hazardous waste sites that have been identified can ad-
vance a claim seeking damages when unfounded public
fears of exposure cause property depreciation, the ultimate
effect might be a reordering of a polluter’s resources for the
benefit of persons who have suffered no cognizable harm at
the expense of those claimants who have been subjected to
a substantial and unreasonable interference in the use and
enjoyment of property. [Id. at 318-319.]
The very problem identified in Adkins is present
here. Plaintiffs argue that property values throughout
the flood plain have been diminished in part as a result
of DEQ warnings to residents concerning possible con-
tamination and steps residents should take to avoid
harmful exposure to dioxin-contaminated soil; resi-
dents were told, for example, that children and garden-
ers should avoid prolonged exposure to contaminated
soil and that certain steps were required if residents
wished to move or dispose of such soil. But the DEQ
itself also reported that various areas of the flood plain
were not harmfully contaminated, and the state-
promulgated restrictions applied only to contaminated
or, at most, frequently flooded land. Indeed, the depo-
sitions of some flood plain residents explicitly revealed
that these residents were not directly affected by pollu-
tion and had not altered the use of their land in any way
as a result of Dow’s alleged polluting activities. Thus,
many proposed class members would be able to argue at
most that their property values decreased simply as a
result of publicity concerning pollution of the Tittaba-
wassee River in part due to this lawsuit. But this is
precisely the sort of unfounded fear that the Adkins
Court concluded could not underlie a nuisance claim.
536 484 M
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Finally, the 170 or so plaintiffs who moved for class
certification risk the very problem identified in Adkins;
by attempting to certify 2,000 class members, most of
whom obviously had not yet chosen to participate in the
suit and many of whom may not be able to allege
damages from present injuries, the plaintiffs virtually
guarantee both that Dow’s resources will be stretched
to defend uncognizable claims at the expense of those
plaintiffs who suffer actual harm and that any fear-
based diminution in property values throughout the
flood plain will accelerate as a result of the overbroad
class definition.
5
Indeed, not only does the proposed
class definition incorrectly suggest that undamaged
land is indeed damaged in some way, but the definition
likely would suspend all flood plain residents’ abilities
to sell undamaged land throughout the pendency of this
suit, which is already over six years old.
CONCLUSION
For these reasons, I conclude that the class proposed
by plaintiffs is too broad and therefore is untenable.
Significantly, it is not even clear that the trial court
intended to accept plaintiffs’ broad proposed definition
when it initially certified the class. I note that the
October 21, 2005, order refers to two defining charac-
teristics of the class, one largely geographic but the
other apparently based on present injury: “Each mem-
ber of the class lives in the area alleged to have been
damaged. Each member of the class allegedly suffered
damages as a result of the release of contaminates in
5
Dow posits that the 100-year flood plain is too broad an area for a
fact-finder to conclude that every owner suffers a present, nonspeculative
injury sounding in nuisance. Dow reasonably asks: why not the 1,000-
year or 1-million-year flood plain? Conversely, plaintiffs would be more
likely to properly define a geographically based class if they focused
merely on the 10- or 20-year flood plain.
2009] H
ENRY V
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ORRIGAN
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the Tittabawassee River.” (Emphasis added.) Accord-
ingly, if the trial court again concludes on remand that
class certification is appropriate, I would direct the
court to explicitly limit any class definition to property
owners who suffer present injuries.
M
ARKMAN
, J., concurred with C
ORRIGAN
,J.
W
EAVER,
J
.
I write this separate opinion with regard to
the issue of my participation in this case.
In preparation of my 2008 income taxes, it came to
my attention that I own 108 shares of Dow Chemical,
which I received through a recent inheritance. After I
became aware of this information, I asked the Clerk of
the Court, Corbin Davis, to notify the parties to this
case. Below is a copy of the disclosure statement sent to
the parties by Mr. Davis on April 15, 2009:
Justice Weaver has requested that I inform you of the
following:
In preparation of her 2008 income taxes, it has come to
Justice Weaver’s attention that she now owns 108 shares in
Dow Chemical, which she received through a recent inher-
itance. Justice Weaver has informed me that she did not
own any Dow Chemical stock at the time she sat on this
matter in a prior appeal. Henry v Dow Chemical Co, 473
Mich 63; 701 NW2d 684 (2005).
She has been informed that this stock is currently worth
approximately $10.94 per share, thus making the total
value of her stock $1,181.52. Pursuant to the Code of
Judicial Conduct Canon 3(C):
“A judge should raise the issue of disqualification when-
ever the judge has cause to believe that grounds for
disqualification may exist under MCR 2.003(B).”
MCR 2.003(B)(5) provides in part that a judge is dis-
qualified when:
538 484 M
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EAVER
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“The judge knows that he or she...has aneconomic
interest in the subject matter in controversy or in a party to
the proceeding or has any other more than de minimis
interest that could be substantially affected by the proceed-
ing.”
Justice Weaver believes that the amount of stock she
owns in Dow Chemical is not a “more than de minimis
interest” that could be substantially affected by this pro-
ceeding.
She also states that she has no personal bias or prejudice
for or against either party and, therefore, finds no need to
recuse herself in this case. However, should either of the
parties desire that she recuse herself, she is willing to do so.
Please advise me of your preference in this matter at
your earliest convenience.
Justice Y
OUNG
also sent a separate statement to the
parties expressing his disagreement with my decision to
notify the parties in this manner. Both parties re-
sponded that they had no objection to my continued
participation in this case.
I bring this issue to the public’s attention because it
is another example of why this Court needs fair, clear,
written rules for disqualification concerning the partici-
pation or nonparticipation of Michigan Supreme Court
justices. Since May 2003, I have repeatedly called for
this Court to recognize, publish for public comment,
place on a public hearing agenda, and address the need
to have written, clear, fair, orderly, and public procedures
concerning the participation or disqualification of jus-
tices.
1
See, e.g., the statement or opinion by W
EAVER
,J.,
1
Justice Y
OUNG
now asserts that he feels an “ethical obligation” to raise
questions about the manner in which I have handled the issue of my
participation in this matter. Post at 541 n 1. However, I again note that
since 2003, I have raised the issue of the need for clear, written, and fair
disqualification rules for Michigan Supreme Court justices, but the
“majority of four” (Justice Y
OUNG
, along with Justices C
ORRIGAN
and
2009] H
ENRY V
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EAVER
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in In re JK, 468 Mich 202, 219-225; 661 NW2d 216
(2003); Gilbert v DaimlerChrysler Corp, 469 Mich 883
(2003); Advocacy Org for Patients & Providers v Auto
Club Ins Ass’n, 472 Mich 91, 96-104; 693 NW2d 358
(2005); McDowell v Detroit, 474 Mich 999, 1000 (2006);
Stamplis v St John Health Sys, 474 Mich 1017, 1017-
1018 (2006); Heikkila v North Star Trucking, Inc, 474
Mich 1080, 1081 (2006); Lewis v St John Hosp, 474
Mich 1089, 1089-1090 (2006); Adair v Michigan, 474
Mich 1027, 1044-1051 (2006); Grievance Administrator
v Fieger, 476 Mich 231, 328-347; 719 NW2d 123 (2006);
Grievance Administrator v Fieger, 477 Mich 1228, 1231-
1271 (2006); People v Parsons, 728 NW2d 62, 62-65
(2007); Ruiz v Clara’s Parlor, Inc, 477 Mich 1044
(2007); Neal v Dep’t of Corrections, 477 Mich 1049,
1049-1053 (2007); State Auto Mut Ins Co v Fieger, 477
Mich 1068, 1070-1071 (2007); Ansari v Gold, 477 Mich
1076, 1077-1079 (2007); Short v Antonini, 729 NW2d
218, 219-220 (2007); Flemister v Traveling Med Ser-
vices, PC, 729 NW2d 222, 223-225 (2007); McDowell v
Detroit, 477 Mich 1079, 1084-1086 (2007); Johnson v
Henry Ford Hosp, 477 Mich 1098, 1099-1100 (2007);
Tate v Dearborn, 477 Mich 1101, 1102-1103 (2007);
Dep’t of Labor & Economic Growth v Jordan, 480 Mich
869, 869-873 (2007); Cooper v Auto Club Ins Ass’n, 739
Markman and former Chief Justice T
AYLOR
) refused to address the issue
until 2006, when this Court worked on the issue of disqualification, and
the “majority of four” refused to publish the proposed disqualification
rules formulated by members of this Court.
In March of this year (2009), after former Chief Justice T
AYLOR
’s
removal from this Court as a result of his overwhelming defeat in the
2008 election, the “remaining three” (Justice Y
OUNG
, along with Justices
C
ORRIGAN
and M
ARKMAN
) voted against publishing proposed rules for
disqualification. Fortunately, this year, a majority voted in March 2009 to
publish for public comment until August 1, 2009, the three proposals for
rules of disqualification to be considered at a public hearing later in 2009.
540 484 M
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NW2d 631, 631-633 (2007); and Citizens Protecting
Michigan’s Constitution v Secretary of State, 482 Mich
960, 962-964 (2008).
Y
OUNG
, J. I write separately to respond to Justice
W
EAVER
’s separate opinion.
It would appear from Justice W
EAVER
’s separate
opinion that I opposed the communication of her late-
discovered ownership interest in one of the parties. She
states: “Justice Y
OUNG
also sent a separate statement to
the parties expressing his disagreement with my deci-
sion to notify the parties in this manner.” Ante at 539
(emphasis added). This is patently untrue, as Justice
W
EAVER
knows. What I challenged was the inadequacy of
her disclosure to the parties concerning the nature of her
ownership of stock in Dow Chemical. For example, she did
not disclose when she actually became the legal owner of
stock in Dow Chemical or precisely when she discovered
she had this ownership interest. Moreover, she did not
disclose the basis for her unilateral determination that her
ownership interest is not a “more than de minimis inter-
est” or why any ownership interest was not itself disquali-
fying. In order to ensure that the context of my criticism
of her disclosure is provided, I am publishing my own
communication to the parties below.
I continue to question Justice W
EAVER
’s participation
in this case.
1
I believe that any ownership interest in a
1
While, consistent with my previous practice, Adair v Michigan, 474
Mich 1027, 1052 (2006) (statement of Y
OUNG
, J.), I do not “vote” on
Justice W
EAVER
’s disqualification in this case, I believe I do have an ethical
obligation to raise questions about her decision. I note that, contrary to their
participation in United States Fidelity & Guaranty Co v Michigan Cata-
strophic Claims Ass’n, 484 Mich 45, 47; 773 NW2d 243 (2009), where
the Chief Justice and Justice C
AVANAGH
concurred in and signed
Justice H
ATHAWAY
’s decision to participate, here they have not joined in
2009] H
ENRY V
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OUNG
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party precludes a judge’s participation. MCR 2.003(B)(5)
provides that a judge is disqualified when “[t]he judge
knows that...she...hasaneconomic interest in...a
party to the proceeding or has any other more than a de
minimis interest that could be substantially affected by
the proceeding.” This court rule is written in the disjunc-
tive, which distinguishes an economic interest in a party
from every other type of potentially disqualifying interest.
Only those “other” types of interests contain an exception
for de minimis interests. Without doubt, Justice W
EAVER
has an “economic interest in . . . a party” in this proceed-
ing.
This qualitative distinction made in MCR 2.003(B)(5)
between economic interests and other interests is simi-
larly found in the nearly identical federal statute re-
garding judicial recusal.
2
28 USC 455(b)(4) disqualifies
a federal judge from sitting in a case if he or she “has a
financial interest in the subject matter in contro-
versy....” Thestatute defines “financial interest” as
“ownership of a legal or equitable interest, however
small.” 28 USC 455(d)(4). The United States Court of
Appeals for the Tenth Circuit has determined that the
federal statutory scheme
Justice W
EAVER
’s decision to participate. I have no idea why these justices
have chosen to vote on the disqualification in the one case but have
declined to do so in this instance.
2
Compare 28 USC 455(b)(4), which provides that a judge shall dis-
qualify himself when “[h]e knows that he...hasafinancial interest in
the subject matter in controversy or in a party to the proceeding, or any
other interest that could be substantially affected by the outcome of the
proceeding,” with MCR 2.003(B)(5), which provides that a judge is
disqualified when “[t]he judge knows that he... has an economic
interest in the subject matter in controversy or in a party to the
proceeding or has any other more than de minimis interest that could be
substantially affected by the proceeding.” The federal statute was en-
acted in 1948 and the Michigan court rule was amended in 1995 in light
of the 1990 ABA Model Code of Judicial Conduct, which, in pertinent
part, was taken from the federal statute.
542 484 M
ICH
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OUNG
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differentiates between two kinds of interests. If the judge
has direct ownership, legal or equitable, then disqualifica-
tion is required regardless of the size of the interest, unless
one of the specified exceptions applies. On the other hand,
an interest not entailing direct ownership falls under
“other interest,” and requires disqualification only if the
litigation could substantially affect it.
[
3
]
Furthermore, the leading commentators on federal
practice and procedure indicate that this statutory
provision
eliminate[s] any dispute about the substantiality of a
financial interest. If a judge, or any other person within the
statutory language, has any financial interest, as that term
is defined, however small, in a party or in the subject
matter in controversy, the judge must recuse. There is no
room for discretion.
[
4
]
Under MCR 2.003(B)(5) there was no discretion here
for Justice W
EAVER
’s continued participation.
MY STATEMENT TO THE PARTIES
My response, also communicated to the parties, chal-
lenging Justice W
EAVER
’s disclosure to the parties con-
cerning her stock ownership is restated here as follows:
5
In light of her repeated public statements regarding
standards for recusal, I regret that Justice Weaver has
placed the parties in the awkward position of having to
decide whether she will take part in the decision of this
3
In re New Mexico Natural Gas Antitrust Litigation, 620 F2d 794, 796
(CA 10, 1980). This is the same distinction made in MCR 2.003(B)(5).
4
Wright and Miller, 13D Federal Practice and Procedure (3d ed),
§ 3546, pp 76-78 (emphasis in original; citations omitted).
5
My communication to the parties begins with endnote 2 because
Justice W
EAVER
’s communication contained one citation and the citations
were numbered continuously. Additionally, all citations in the communi-
cation have been converted to this Court’s standard format.
2009] H
ENRY V
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OUNG
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case notwithstanding her acknowledged financial interest
as an investor in the defendant corporation. I ask that the
following public information regarding Justice Weaver’s
stated positions on recusal be taken into consideration in
making a decision on her request for remittal.
While I have publicly supported the Court’s more than a
century old recusal policy,
2
Justice Weaver has been equally
publicly critical of that longstanding policy in suggesting
that she subscribes to a “higher” standard.
3
Nevertheless, Justice Weaver claims that her ownership
of approximately $1,200 in defendant Dow’s stock is “not a
‘more than de minimis interest.’ ” She has made this
determination herself, which is contrary to her repeated
public statements on the question of judicial recusal.
4
For example, in this Court’s March 18, 2009 order on
ADM 2009-04 (Proposed Disqualification Rules for Jus-
tices), Justice Weaver reiterated her 2006 statement on
disqualification and explained that “[i]t is a most basic
truth that the person who may be the least capable of
recognizing a justice’s actual bias and prejudice, or appear-
ance of bias and prejudice, is the justice h[er]self.”
5
Pre-
sumably consistent with that sentiment, she recused her-
self in Kyser v Kasson Twp, “because she has a past and
current business relationship with Kasson Township Su-
pervisor Fred Lanham and his family.”
6
Moreover, Justice Weaver has advocated a disqualifica-
tion standard that requires judges to recuse themselves if
there is merely an appearance of impropriety. She has cited
with approval Canon 2 of the ABA Model Code of Judicial
Conduct, which states that “[a] judge shall avoid... the
appearance of impropriety in all of the judge’s activities”
and Model Canon 3(E)(1), which states that a judge “shall
disqualify...herself in a proceeding in which the judge’s
impartiality might reasonably be questioned.”
7
The disqualification standard that she has publicly
championed is an objective standard, not a subjective
standard to be determined by her say-so. Justice Weaver’s
“appearance of impropriety” standard is made without
544 484 M
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OUNG
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regard to whether an individual judge harbors an actual
bias toward any party in the case being heard:
“[W]hen a judge recuses...herself to avoid the appear-
ance of impropriety, the result is that the judge avoids
risking actual bias. Second, when a judge recuses...
herself, the judge eliminates the appearance of impropriety
and thereby engenders public confidence in the judiciary.”
8
Accordingly, if her support of the “appearance of impro-
priety” standard is genuine — and I assume that she would
not have advocated it otherwise — her personal belief that
she “has no personal bias or prejudice for or against either
party” and that the total value of her stock is “not more
than a de minimis interest” is irrelevant to whether she
must recuse herself.
Moreover, Justice Weaver has advocated in her various
published statements on disqualification standards that
the disqualification decision cannot be solely vested in the
judge who is the subject of disqualification but must be
reviewed by other members of the Court.
9
Here, Justice Weaver has made her own determination
that her Dow stock ownership is “de minimis” within the
meaning of MCR 2.003(B)(5). But there is no basis upon
which an objective observer can assess the validity of her
claim and decision. Context is essential in considering what
level of ownership in a party litigant is “de minimis,” and
no one but Justice Weaver is privy to her financial status —
something she has chosen not to share.
My point here is that Justice Weaver’s request for
remission is entirely inconsistent with her published views
on what standards ought apply in recusal situations. Her
ownership of stock in a party defendant does pose an
appearance of impropriety from the standpoint of the
public.
10
Can anyone imagine the public at large believing
that it is perfectly appropriate for a judge to decide a case
in which she owns stock in one of the parties?
11
Moreover,
her communication — which states her conflict, announces
that her conflict does not matter, and asks the parties to
agree with her — is inherently intimidating and coercive to
both parties involved in this litigation.
12
Rejection of her
2009] H
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OUNG
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stated premise — that, notwithstanding her stated conflict,
she should participate in the case — obviously puts the
parties in the position of offending a sitting Justice. By her
own stated positions on recusal, she should not be putting
the parties in the position of having to bless an appearance
of impropriety.
Finally, the nature of Justice Weaver’s private commu-
nication with the parties does not comport with her con-
clusion that the Michigan Constitution, art 6, § 6, “requires
that a justice’s self-initiated decision and reasons not to
participate, or a challenged justice’s decision and reasons
to participate or not participate, should be in writing and
accessible to the public.”
13
It would seem to me that, under
her proposed regime, Justice Weaver’s discussion of her
stock ownership should be published for public review.
Again, I wish to state that I believe that our historic
disqualification policy is constitutionally sound and should
be embraced by all members of this Court. Since it has not
been, and since Justice Weaver has articulated her own,
purportedly “higher” recusal standards, I am left to won-
der why Justice Weaver advocates a public position con-
trary to the position she practices and why she believes it
appropriate that the parties should be asked to bless her
conflict.
_____________________________________________________
2
“In short, a justice confronted with a disqualification
motion has typically consulted with members of the Court
and made a determination whether participation in a
particular matter was appropriate. Other than providing
counsel, other members of the Court have not participated
in the decision.” ADM 2009-04, order of the Michigan
Supreme Court, March 18, 2009, p 33 (“March 18, 2009
order”) (statement of Young, J.). See also Adair v State of
Michigan, 474 Mich 1027, 1052 [2006] (statement of
Young, J.).
3
See, e.g., March 18, 2009 order, supra at 9 n 1 (state-
ment of Weaver, J).
4
So far as I am aware, Justice Weaver did not consult
with any member of this Court before announcing her
position.
546 484 M
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OUNG
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5
March 18, 2009 order, supra at 14.
6
Kyser v Kasson Twp [483 Mich 903 (2009) (order
denying leave)] and [483 Mich 983 (2009) (order vacating
denial order and granting leave)]. Justice Weaver did not
disclose the nature of her “business relationship” that
warranted her recusal.
7
See Adair v State of Michigan, 474 Mich 1027, 1047
(2006) (statement of Weaver, J.). Justice Weaver does not
subscribe to my view that, because Justices cannot be
replaced on a case by case basis, a different rule of
disqualification must apply to Justices. See id. at 1044-
1045. On the contrary, she advocates that a disqualified
Justice can be replaced in such a case.
8
Id. (Emphases added.) Justice Weaver claims that she
“has no personal bias or prejudice for or against either
party....” Nevertheless, her lack of actual bias in this
case is irrelevant under her disqualification standard to the
question whether the participation of a judge who has an
ownership interest in a litigant creates an appearance of
impropriety.
9
March 18, 2009 order, supra at 13-14. This, of course,
is one of the issues pending in Caperton v Massey, United
States Supreme Court Docket No. 08-22, where it is
claimed that due process requires that a recusal issue must
be decided by someone other than the judge who is the
subject of potential disqualification.
10
Indeed, Congress has made this very policy judg-
ment. 28 USC 455(b)(4) disqualifies a federal judge from
sitting in a case if he or she “has a financial interest in the
subject matter in controversy.” The statute defines “finan-
cial interest” as “ownership of a legal or equitable interest,
however small.” 28 USC 455(d)(4). While this federal
statute is not controlling here as our disqualification rule
for Michigan judges permits a “de minimis” financial in-
terest, it does provide support for the proposition that even
a small financial stake in a party litigant creates an appear-
ance of impropriety.
11
As stated, Justice Weaver provides the parties with no
basis upon which to evaluate her request for remission.
2009] H
ENRY V
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OUNG
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12
I am aware that this procedure is specifically contem-
plated by MCR 2.003(D). Nevertheless, if Justice Weaver’s
standard for recusal is the appearance of impropriety, then
submitting this question to the parties becomes moot and
is inherently aimed at coercing the parties to accept her
participation notwithstanding the appearance of impropri-
ety.
13
Adair, 474 Mich at 1050 (statement of Weaver, J.)
(emphasis added).
_____________________________________________________
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OUNG
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PEOPLE v IDZIAK
Docket No. 137301. Argued April 7, 2009 (Calendar No. 4). Decided July
31, 2009.
Patrick L. Idziak pleaded guilty in the Kent Circuit Court to armed
robbery and possession of a firearm during the commission of a
felony, both committed while he was on parole. After sentencing
the defendant, the court, Donald Johnston, J., did not grant him
credit against the new sentences under MCL 769.11b, the jail
credit statute, for the 98 days he spent in jail between his arrest
and sentencing, concluding that parole detainees were not entitled
to the credit. The court also concluded that it lacked common-law
discretion to award credit. The Court of Appeals denied the
defendant’s application for leave to appeal in an unpublished
order, entered July 25, 2008 (Docket No. 285975). The Supreme
Court granted the defendant leave to appeal. 483 Mich 885 (2009).
In an opinion by Justice C
ORRIGAN
, joined by Justices W
EAVER
,
Y
OUNG
, and H
ATHAWAY
, the Supreme Court held:
A parolee who is convicted of a felony committed while on
parole and sentenced to a term of imprisonment is not entitled
under MCL 769.11b to credit against his or her new minimum
sentence for the time spent in jail between the parolee’s arrest for
the new offense and sentencing for that offense. A sentencing
court lacks common-law discretion to grant credit against the
parolee’s new minimum sentence, and the denial of credit is not a
double jeopardy or equal protection violation.
1. Under MCL 791.238(2), a parolee convicted of and sen-
tenced for an offense committed while on parole resumes serving
the unexpired portion of his or her original maximum sentence
when the parolee is arrested for the new offense. The parolee thus
remains incarcerated regardless of whether he or she would
otherwise be eligible for bond before conviction of the new offense.
Therefore, the parolee is incarcerated not “because of being denied
or unable to furnish bond,” but for independent reasons, and MCL
769.11b does not apply. The defendant is not entitled under that
statute to credit against his new minimum sentence for the time
he spent in jail awaiting sentencing on the new offenses.
2. Because the comprehensive statutory scheme pertaining to
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parolees dictates that the defendant’s 98 days in jail were served
against his original maximum sentence, the sentencing court had
no discretion to circumvent the operation of that statutory
scheme.
3. The defendant was not subjected to multiple terms of
confinement for his new offenses because he continued to serve
out his earlier sentence after he was arrested. Thus, there was no
double jeopardy violation.
4. Parolees are situated differently from criminal defendants
who are not on parole. Parole is a conditional permission to leave
prison, and a parolee continues serving out his or her sentence.
Because parolees receive credit against their earlier sentence
under MCL 791.238(2) and defendants who are not on parole
receive jail credit under MCL 769.11b, both parolees and defen-
dants who are not on parole receive credit for time served. It was
rational for the Legislature to treat parolees and defendants who
are not on parole differently in this regard. No statute makes a
distinction between a parolee who pleads guilty and one who
chooses to go to trial. To the extent that the denial of jail credit
against a parolee’s new minimum sentence results in some parole
violators reaching parole eligibility earlier than others because of
arbitrary factors, it does not amount to a violation of equal
protection. Any difference in treatment does not arise from a
classification created by the Legislature.
Affirmed.
Chief Justice K
ELLY
, joined by Justice C
AVANAGH
, concurring in
part and dissenting in part, agreed that a parolee incarcerated on
new charges is not entitled to credit under MCL 769.11b for time
spent in jail awaiting trial. The reason, however, is because that
time should be considered time served toward the parolee’s
aggregate minimum sentence calculated under MCL 791.234,
which must be served before he or she is again eligible for parole.
Therefore, receiving credit for the time spent in jail would allow
the parolee double credit for the same time. Chief Justice K
ELLY
noted that it was thus unnecessary to address the defendant’s
constitutional challenges, but also stated that the current applica-
tion of the consecutive sentencing scheme for parolees may be
unconstitutional because of disparate treatment of similarly situ-
ated parolees. The Parole Board should be directed to recalculate
the defendant’s parole-eligibility date.
Justice M
ARKMAN
, dissenting, disagreed with the conclusion
that MCL 769.11b does not apply to a defendant who spends time
in jail awaiting sentencing for a new crime committed while on
parole. The statute entitles any person who is denied or unable to
550 484 M
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furnish bond for the offense of which the person is convicted to
receive the credit regardless of the reason the person cannot
post bond for the new offense. It does not require that the
defendant be denied or unable to post bond because of the
offense of which the defendant is convicted, such as because of
a parole detainer. Since the defendant in this case was unable to
furnish bond, he should have received credit against his new
sentence for the time spent in jail. Additionally, under MCL
768.7a(2), the Parole Board should be ordered to undertake an
affirmative determination of what is the “remaining portion” of
the defendant’s original sentence that he must serve. Only after
the defendant completes the remaining portion of his first
sentence can his new sentence begin and the jail credit be
applied. Once the defendant begins his new sentence and serves
an amount of time equal to the new minimum term, he will then
become parole eligible under MCL 791.234(3). This interpreta-
tion of these three statutes, unlike that of the majority, gives
full effect to a difficult and complex sentencing scheme estab-
lished by the Legislature for parole violators. Equally signifi-
cantly, the majority’s opinion fails to address the Parole Board’s
practice of arbitrarily determining how much time remains to
be served on a parolee’s first sentence, which leads to a
situation in which identically situated defendants may be
treated in a widely disparate fashion with respect to eligibility
for parole because of entirely arbitrary and serendipitous fac-
tors unrelated to a defendant’s culpability or the severity of a
defendant’s crimes.
P
AROLE —
J
AIL
C
REDIT
S
TATUTE —
C
REDIT FOR
T
IME
S
ERVED
A
WAITING
T
RIAL ON
A
N
EW
O
FFENSE
.
A parolee who is convicted of and sentenced to a term of imprison-
ment for an offense committed while on parole resumes serving his
or her original maximum sentence on the date the parolee is
arrested for the new offense; the parolee is not entitled to credit
against his or her new minimum sentence for the time served in
jail between arrest and sentencing on the new offense (MCL
769.11b, 791.238[2]).
Michael A. Cox, Attorney General, B. Eric Restuccia,
Solicitor General, William A. Forsyth, Prosecuting At-
torney, Timothy K. McMorrow, Chief Appellate Attor-
ney, and T. Lynn Hopkins, Assistant Prosecuting Attor-
ney, for the people.
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State Appellate Defender (by Jeanice Dagher-
Margosian) for the defendant.
Amici Curiae:
Michael A. Cox, Attorney General, B. Eric Restuccia,
Solicitor General, Henry Boynton, Assistant Solicitor
General, and Charles C. Schettler, Jr., Assistant Attor-
ney General, for the Department of Corrections.
Stuart G. Friedman for Criminal Defense Attorneys
of Michigan.
Curtis L. Munson, in propria persona.
C
ORRIGAN
, J. In this case, we consider whether a
parolee who is convicted of and sentenced to a term of
imprisonment for a felony committed while on parole is
entitled, under Michigan’s jail credit statute, MCL
769.11b, to credit for time served in jail after his arrest
on the new offense and before sentencing for that
offense. We hold that, under MCL 791.238(2), the
parolee resumes serving his earlier sentence on the date
he is arrested for the new criminal offense. As long as
time remains on the parolee’s earlier sentence, he
remains incarcerated, regardless of his eligibility for
bond or his ability to furnish it. Since the parolee is not
being held in jail “because of being denied or unable to
furnish bond,” the jail credit statute does not apply.
Further, a sentencing court lacks common law dis-
cretion to grant credit against a parolee’s new mini-
mum sentence in contravention of the statutory
scheme. Finally, the denial of credit against a new
minimum sentence does not violate the double jeopardy
clauses or the equal protection clauses of the United
States or Michigan constitutions. US Const, Ams V and
XIV; Const 1963, art 1, §§ 2 and 15.
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I. FACTS AND PROCEDURAL HISTORY
About 3:00 a.m. on November 23, 2006, while defen-
dant was on parole,
1
he confronted Brenda Young, an
employee of the Bow Tie Tavern in Alpine Township,
Kent County, as she was closing the bar for the night.
She was the only person still present in the bar. Defen-
dant approached Young with a shotgun when she
opened the back door to take out the trash. He ques-
tioned her about the keys to the jukebox, pool table,
cigarette machine, and lottery machine. She told him
that she only had the key to the lottery machine. She
opened the machine, surrendering the cash inside.
Defendant pried open the jukebox with a crowbar and
took the cash inside. He then tied up Young and stole
her car. She freed herself about 40 minutes later and
called the police. An investigation revealed defendant’s
involvement in the crime, and police arrested him on
November 28, 2006.
Defendant pleaded guilty to armed robbery, MCL
750.529, and possession of a firearm during the com-
mission of a felony, MCL 750.227b. On March 6, 2007,
the court sentenced him to a term of 12 to 50 years’
imprisonment for the armed robbery conviction and the
mandatory consecutive two-year term for the felony-
firearm conviction. The sentencing court did not grant
defendant credit against the new sentences for the 98
days he spent in jail between his arrest and sentencing.
Defendant’s appellate counsel moved for postjudgment
relief , arguing that jail credit was mandatory under MCL
769.11b and, in the alternative, that the court had discre-
tion to award credit. Citing People v Seiders, 262 Mich
App 702; 686 NW2d 821 (2004), and People v Filip, 278
1
Defendant’s lengthy criminal history includes 13 prior felony convic-
tions. He was granted parole on May 10, 2006.
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Mich App 635; 754 NW2d 660 (2008), in which the Court
of Appeals held that parole detainees are not entitled to
jail credit under MCL 769.11b, the sentencing court
denied the motion. The court also ruled that it lacked
common law discretion to award credit because MCL
768.7a(2) mandates consecutive sentencing for parolees
who commit new felonies while on parole. The Court of
Appeals denied defendant’s application for leave to appeal
for lack of merit. People v Idziak, unpublished order of the
Court of Appeals, issued July 25, 2008 (Docket No.
285975).
II. STANDARD OF REVIEW
This Court reviews questions of statutory interpre-
tation de novo. People v Stewart, 472 Mich 624, 631; 698
NW2d 340 (2005). We also review constitutional issues
de novo. Harvey v Michigan, 469 Mich 1, 6; 664 NW2d
767 (2003).
III. ANALYSIS
A. INTRODUCTION
The issue of appropriate jail credit arises when a
person is convicted of a crime and sentenced to impris-
onment, granted parole, and then convicted and sen-
tenced to prison for a new felony committed while on
parole. After arrest, the parolee serves time in jail
awaiting disposition of the new criminal charges. The
issue is whether, after conviction of the new criminal
charges, the parolee receives credit against his new
minimum sentence for the time he served in jail. This is
a significant problem because the prisoner’s new parole
eligibility date is affected. If defendant here is awarded
credit against his new minimum sentence for the 98
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days he served in jail, he will become eligible for parole
98 days earlier than if he is not granted such credit.
B. THE DEPARTMENT OF CORRECTIONS AND THE PAROLE BOARD
The Department of Corrections (DOC) calculates the
new parole eligibility date of a parolee sentenced to a
new term of imprisonment for a felony committed while
on parole. The Parole Board has no discretion to grant
parole until that date. The parties do not take issue
with the practices of the DOC or the Parole Board.
Understanding their functions is nevertheless critical
to understanding the issue presented.
In general, a prisoner becomes subject to the juris-
diction of the Parole Board after he “has served a period
of time equal to the minimum sentence imposed by the
court....” MCL 791.234(1). A prisoner sentenced to
consecutive terms of imprisonment, “whether received
at the same time or at any time during the life of the
original sentence,” is subject to the jurisdiction of the
Parole Board “when the prisoner has served the total
time of the added minimum terms....” MCL
791.234(3).
2
2
MCL 791.234(1) and MCL 791.234(3) apply to a prisoner “other than
a prisoner subject to disciplinary time.” Where such a prisoner is
concerned, the parole eligibility calculation takes into account any “good
time and disciplinary credits” the prisoner has earned. MCL 791.234(2)
and MCL 791.234(4) apply to a prisoner “subject to disciplinary time.”
Although we refer to MCL 791.234(1) and MCL 791.234(3) throughout
this opinion, our analysis and decision apply equally to both sets of
provisions and both classes of prisoners because the language on which
we rely appears in both sets of provisions.
A “prisoner subject to disciplinary time” includes (1) a “prisoner
sentenced to an indeterminate term of imprisonment for” a listed offense
committed on or after December 15, 1998, or any offense committed on or
after that date that is not listed and is punishable by life imprisonment,
MCL 800.34(5)(a), and (2) “a prisoner sentenced to an indeterminate
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Before June 1, 1988, MCL 768.7a(1)
3
provided for
consecutive sentencing for prison escapees and persons
term of imprisonment” for any crime that is not listed committed on or
after December 15, 2000, MCL 800.34(5)(b).
MCL 791.234 provides, in relevant part:
(1) Except as provided in [MCL 791.234a], a prisoner sentenced
to an indeterminate sentence and confined in a state correctional
facility with a minimum in terms of years other than a prisoner
subject to disciplinary time is subject to the jurisdiction of the
parole board when the prisoner has served a period of time equal
to the minimum sentence imposed by the court for the crime of
which he or she was convicted, less good time and disciplinary
credits, if applicable.
(2) Except as provided in [MCL 791.234a], a prisoner subject to
disciplinary time sentenced to an indeterminate sentence and
confined in a state correctional facility with a minimum in terms
of years is subject to the jurisdiction of the parole board when the
prisoner has served a period of time equal to the minimum
sentence imposed by the court for the crime of which he or she was
convicted.
(3) If a prisoner other than a prisoner subject to disciplinary
time is sentenced for consecutive terms, whether received at the
same time or at any time during the life of the original sentence,
the parole board has jurisdiction over the prisoner for purposes of
parole when the prisoner has served the total time of the added
minimum terms, less the good time and disciplinary credits
allowed by statute. The maximum terms of the sentences shall be
added to compute the new maximum term under this subsection,
and discharge shall be issued only after the total of the maximum
sentences has been served less good time and disciplinary credits,
unless the prisoner is paroled and discharged upon satisfactory
completion of the parole.
(4) If a prisoner subject to disciplinary time is sentenced for
consecutive terms, whether received at the same time or at any
time during the life of the original sentence, the parole board has
jurisdiction over the prisoner for purposes of parole when the
prisoner has served the total time of the added minimum terms.
The maximum terms of the sentences shall be added to compute
the new maximum term under this subsection, and discharge shall
be issued only after the total of the maximum sentences has been
served, unless the prisoner is paroled and discharged upon satis-
factory completion of the parole.
3
Before the statute was amended in 1988, MCL 768.7a(1) provided:
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who committed crimes while in prison. Under that
provision and MCL 791.234(3),
4
the DOC had, for more
than 40 years, “computed the eligibility for parole of an
inmate who commits a crime in prison or an escapee
who commits a crime while escaped by adding the
consecutive minimum terms of all the offenses for
which he is incarcerated in state prison.” Wayne Co
Prosecutor v Dep’t of Corrections, 451 Mich 569, 579-
580; 548 NW2d 900 (1996).
In 1988,
5
the Legislature added current MCL
768.7a(2), which provides:
If a person is convicted and sentenced to a term of
imprisonment for a felony committed while the person was
on parole from a sentence for a previous offense, the term
of imprisonment imposed for the later offense shall begin
to run at the expiration of the remaining portion of the
term of imprisonment imposed for the previous offense.
A person who is incarcerated in a penal or reformatory insti-
tution in this state, or who escapes from that institution, and who
commits a crime during that incarceration or escape which is
punishable by imprisonment in a penal or reformatory institution
in this state shall, upon conviction thereof, be subject to sentence
therefor in the manner provided by law for such crimes. The term
of sentence imposed for the crime shall commence at the expira-
tion of the term or terms of sentence which the person is serving
or has become liable to serve in a penal or reformatory institution
in this state.
MCL 768.7a(1), as amended by 1988 PA 48, now provides, in part:
“The term of imprisonment imposed for the crime shall begin to run at
the expiration of the term or terms of imprisonment which the person is
serving or has become liable to serve in a penal or reformatory institution
in this state.”
4
1994 PA 217 renumbered former MCL 791.234(2) as MCL 791.234(3).
The Wayne Co Prosecutor decision referred to this section as MCL
791.234(2) in order to remain consistent with the parties’ briefs. Wayne
Co Prosecutor v Dep’t of Corrections, 451 Mich 569, 573 n 5; 548 NW2d
900 (1996).
5
1988 PA 48, effective June 1, 1988.
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In Wayne Co Prosecutor, we considered the prosecutor’s
argument that MCL 768.7a(2) impliedly repealed MCL
791.238(5)
6
and MCL 791.234(3) because “the ‘remain-
ing portion’ clause of [MCL 768.7a(2)]... require[d]
parolees who commit crimes while on parole to first
serve the maximum of the earlier sentence before
beginning to serve the new sentence.” Id. at 574. We
rejected that argument. Instead, we concluded that
MCL 768.7a(2) extended to parolees the same consecu-
tive sentencing treatment to which prisoners who com-
mitted crimes while incarcerated and escapees were
subjected under former MCL 768.7a(1). Id. at 577-578.
We saw no indication that the Legislature intended to
alter the DOC’s longstanding method of sentence cal-
culation, as the prosecutor urged. Id. at 580-581. We
held that
the “remaining portion” clause of [MCL 768.7a(2)] re-
quires the offender to serve at least the combined mini-
mums of his sentences, plus whatever portion, between the
minimum and the maximum, of the earlier sentence that
the Parole Board may, because the parolee violated the
terms of parole, require him to serve. [Id. at 584.]
Thus, in Wayne Co Prosecutor, we rejected the prosecu-
tor’s argument that MCL 768.7a(2) requires a parolee
to serve his entire original maximum sentence, plus his
new minimum sentence, before becoming eligible for
parole, and held that the DOC’s practice of calculating
the new parole eligibility date, as mandated by MCL
791.234(3), was consistent with MCL 768.7a(2).
As the parties acknowledge, neither the DOC nor the
Parole Board has sentencing authority. The DOC calcu-
lates the prisoner’s new parole eligibility date after
6
MCL 791.238(5) provides: “A prisoner committing a crime while at
large on parole and being convicted and sentenced for the crime shall be
treated as to the last incurred term as provided under [MCL 791.234].”
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sentencing. Under MCL 791.234(3), the Parole Board
lacks jurisdiction over the prisoner until he reaches that
new parole eligibility date. In general, a parolee will
have already served his original minimum sentence,
7
so
he will become parole eligible after serving his new
minimum sentence. At that point, the Parole Board has
jurisdiction to decide whether the prisoner is worthy of
parole. MCL 791.234(3). The issue here is not the
practices of the DOC or the Parole Board, but whether
the sentencing court is required or authorized, under
MCL 769.11b or as a matter of common law discretion,
to grant defendant credit against his new minimum
sentence for the time he served in jail following his
arrest for the new offenses and before his sentencing for
those offenses.
C. THE JAIL CREDIT STATUTE
Michigan’s sentencing credit statute, MCL 769.11b,
provides:
Whenever any person is hereafter convicted of any
crime within this state and has served any time in jail prior
to sentencing because of being denied or unable to furnish
bond for the offense of which he is convicted, the trial court
7
In general, the parolee will already have served his minimum sen-
tence in order to be eligible for parole, so he will be considered to be
serving time against his original maximum sentence. As we explained in
Wayne Co Prosecutor, however,
[MCL 791.233(1)(b)] permits “special parole” of a prisoner [other
than a prisoner subject to disciplinary time, see MCL
791.233(1)(d)] “whenever the sentencing judge... giveswritten
approval of the parole of the prisoner before the expiration of the
minimum term of imprisonment.”
A special parolee who commits another offense while on parole
thus will ordinarily have some time left to serve on the minimum
of the earlier sentence before beginning service of the new mini-
mum sentence. [Wayne Co Prosecutor, supra at 581.]
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in imposing sentence shall specifically grant credit against
the sentence for such time served in jail prior to sentenc-
ing.
Although this Court has not considered whether the
statute applies to parolees, we considered its applicabil-
ity in a related context in People v Prieskorn, 424 Mich
327; 381 NW2d 646 (1985). There the defendant posted
bond for marijuana charges and was arrested while on
bond for a driving offense. He was later incarcerated
and began serving a 90-day sentence for the driving
offense. In the case before this Court, he sought credit
toward the sentence for the marijuana conviction for 51
days of the confinement he had served under the
sentence for the driving offense. Id. at 343. We held that
the jail credit statute “neither requires nor permits
sentence credit” in cases in which a defendant released
on bond after being charged with one offense is subse-
quently incarcerated as a result of charges arising out of
an unrelated offense “and then seeks credit in the
former case for that latter period of confinement.” Id.at
340. “Had the Legislature intended that convicted
defendants be given sentence credit for all time served
prior to sentencing day,... it would not have condi-
tioned and limited entitlement to credit to time served
‘for the offense of which [the defendant] is convicted.’ ”
Id. at 341. We concluded:
To be entitled to sentence credit for presentence time
served, a defendant must have been incarcerated “for the
offense of which he is convicted.” Since the fifty-one days of
incarceration for which the defendant seeks credit is unre-
lated to the offense before us for which he has been
convicted, he is not entitled to sentence credit for that
confinement. [Id. at 344.]
In People v Adkins, 433 Mich 732, 739; 449 NW2d 400
(1989), we applied Prieskorn to a case in which the
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defendant was released on bond after being charged
with armed robbery and, before trial and conviction of
the armed robbery charge, was arrested and convicted
of two unrelated stolen property offenses in two other
jurisdictions and began serving sentences for those
convictions. We held that when, “as here, the defendant
has served time not as a result of his inability to post
bond for the offense for which he seeks credit, but
because of his incarceration for another offense, [MCL
769.11b] is simply not applicable.” Id. at 751.
Relying on Prieskorn, the Court of Appeals recently
held that the jail credit statute does not apply to
parolees. Seiders held that a parolee arrested for a
new criminal offense is entitled to jail credit exclu-
sively toward the sentence from which parole was
granted and not toward the new sentence. Seiders,
supra at 705-708. The Court cited Prieskorn, supra at
340-341, for the proposition that MCL 769.11b “does
not...entitle a defendant to credit for time served
before sentencing if he is incarcerated for an offense
other than that for which he is ultimately convicted,
or for other unrelated reasons.” Seiders, supra at
706-707. It reasoned that because a “defendant is
only entitled to a sentencing credit under MCL
769.11b if he has been ‘denied or unable to furnish
bond’ ” and “bond is neither set nor denied when a
defendant is held in jail on a parole detainer,” MCL
769.11b does not apply to a parole detainee. Id.at707
(emphasis in Seiders). The Court of Appeals reaf-
firmed Seiders in People v Stead, 270 Mich App 550;
716 NW2d 324 (2006), and Filip. Filip, following
Seiders, held that “MCL 769.11b is inapplicable un-
der circumstances where a parolee is held on new
charges that constitute a parole violation.” Filip,
supra at 641. The Court reasoned:
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MCL 791.238(1) provides that a parolee remains legally
in the custody of the Department of Corrections, and that
“[p]ending a hearing upon any charge of parole violation,
the prisoner shall remain incarcerated.” This provision
unambiguously declares that parole violators cannot avoid
confinement pending resolution of the violation proceed-
ings. Such a period of incarceration thus constitutes part of
the original sentence and in that sense is credited against
it. Moreover, “denied,” as used in MCL 769.11b, implies the
exercise of discretion, not the recognition of outright
ineligibility. For that reason, MCL 769.11b simply does not
apply to parole detainees. Therefore, the trial court erred
in setting bond for Filip in the first instance. Simply put,
the erroneously granted possibility of posting bond did not
secure Filip any rights under MCL 769.11b. In sum,
contrary to the trial court’s ruling, Seiders governs and
must be applied. [Id. at 641-642.]
Although we reach essentially the same conclusion as
the Court of Appeals did in Seiders and Filip—that the
jail credit statute does not generally apply to parolees
who commit new felonies while on parole—we do so on
the basis of a somewhat different analysis. Consistent
with our reasoning in Adkins, we hold that the jail
credit statute does not apply to a parolee who is
convicted and sentenced to a new term of imprisonment
for a felony committed while on parole because, once
arrested in connection with the new felony, the parolee
continues to serve out any unexpired portion of his
earlier sentence unless and until discharged by the
Parole Board. For that reason, he remains incarcerated
regardless of whether he would otherwise be eligible for
bond before conviction on the new offense.
8
He is
incarcerated not “because of being denied or unable to
8
Subject to several exceptions, the general rule under the Michigan
Constitution is that all persons are entitled to bail before conviction. A
parolee is, of course, in the post-conviction stage with respect to the
earlier conviction from which he was paroled.
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furnish bond” for the new offense, but for an indepen-
dent reason. Therefore, the jail credit statute, MCL
769.11b, does not apply.
9
Article 1, § 15 of the Michigan Constitution of 1963, which addresses
eligibility for bond, provides in relevant part:
No person shall be subject for the same offense to be twice put
in jeopardy. All persons shall, before conviction, be bailable by
sufficient sureties, except that bail may be denied for the following
persons when the proof is evident or the presumption great:
(a) A person who, within the 15 years immediately preceding a
motion for bail pending the disposition of an indictment for a
violent felony or of an arraignment on a warrant charging a violent
felony, has been convicted of 2 or more violent felonies under the
laws of this state or under substantially similar laws of the United
States or another state, or a combination thereof, only if the prior
felony convictions arose out of at least 2 separate incidents, events,
or transactions.
(b) A person who is indicted for, or arraigned on a warrant
charging, murder or treason.
(c) A person who is indicted for, or arraigned on a warrant
charging, criminal sexual conduct in the first degree, armed
robbery, or kidnapping with intent to extort money or other
valuable thing thereby, unless the court finds by clear and con-
vincing evidence that the defendant is not likely to flee or present
a danger to any other person.
(d) A person who is indicted for, or arraigned on a warrant
charging, a violent felony which is alleged to have been committed
while the person was on bail, pending the disposition of a prior
violent felony charge or while the person was on probation or
parole as a result of a prior conviction for a violent felony.
[Emphasis added.]
See also MCR 6.106(B) (pretrial release/custody under Const 1963, art 1,
§ 15).
9
Despite Justice M
ARKMAN
’s lengthy criticism of Prieskorn, post at
610-611, it—along with Adkins—remains binding precedent. In any event,
we base our analysis on the language of MCL 769.11b, which requires jail
credit when the defendant serves time in jail “because of being denied or
unable to furnish bond for the offense of which he is convicted ....” A
parolee who commits a new crime while on parole serves time in jail because
he is serving out his earlier maximum term of imprisonment, not “because
of being denied or unable to furnish bond for the [new] offense.”
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Once a prisoner has served his minimum sentence,
the Parole Board has jurisdiction over the prisoner and
has discretion to grant parole. MCL 791.234(1). While
on parole, the prisoner “shall be considered to be
serving out the sentence imposed by the court,” MCL
791.238(6),
10
but he “remain[s] in the legal custody and
under the control of the department,” MCL
791.238(1).
11
When there has been a “probable violation
of parole,” the DOC may issue a warrant for the
parolee’s return. MCL 791.238(1). Moreover, if “reason-
able grounds” exist to believe that the parolee violated
10
MCL 791.238(6) provides:
A parole shall be construed as a permit to the prisoner to leave
the prison, and not as a release. While at large, the paroled
prisoner shall be considered to be serving out the sentence
imposed by the court and, if he or she is eligible for good time, shall
be entitled to good time the same as if confined in a state
correctional facility.
As explained inn7ofthisopinion,aprisoner granted parole will
generally have already served his minimum sentence, so he is considered
to be serving time against his original maximum sentence.
11
MCL 791.238 provides, in relevant part:
(1) Each prisoner on parole shall remain in the legal custody
and under the control of the department. The deputy director of
the bureau of field services, upon a showing of probable violation
of parole, may issue a warrant for the return of any paroled
prisoner. Pending a hearing upon any charge of parole violation,
the prisoner shall remain incarcerated.
(2) A prisoner violating the provisions of his or her parole and
for whose return a warrant has been issued by the deputy director
of the bureau of field services is treated as an escaped prisoner and
is liable, when arrested, to serve out the unexpired portion of his
or her maximum imprisonment. The time from the date of the
declared violation to the date of the prisoner’s availability for
return to an institution shall not be counted as time served. The
warrant of the deputy director of the bureau of field services is a
sufficient warrant authorizing all officers named in the warrant to
detain the paroled prisoner in any jail of the state until his or her
return to the state penal institution.
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his parole, he may be “arrested without a warrant and
detained in any jail of this state.” MCL 791.239.
12
Under MCL 791.238(2), a “prisoner violating the
provisions of his or her parole and for whose return a
warrant has been issued by the deputy director of the
bureau of field services
[
13
]
...is liable, when arrested, to
serve out the unexpired portion of his or her maximum
imprisonment,” but the “time from the date of the
declared violation to the date of the prisoner’s availabil-
ity for return to an institution shall not be counted as
time served.” (Emphasis added.) Because a paroled
prisoner is considered to be serving his sentence as long
as he remains in compliance with the terms of his
parole, MCL 791.238(6), except “from the date of the
declared violation to the date of the prisoner’s availabil-
ity for return to an institution,” MCL 791.238(2),
14
the
second part of MCL 791.238(2) establishes that the time
after “the date of the prisoner’s availability for return to
an institution” is to be counted as time served against
the parolee’s original sentence. For a prisoner paroled
and arrested again in Michigan, the parolee’s “date
12
MCL 791.239 provides:
A probation officer, a parole officer, a peace officer of this state,
or an employee of the department other than a probation or parole
officer who is authorized by the director to arrest parole violators
may arrest without a warrant and detain in any jail of this state a
paroled prisoner, if the probation officer, parole officer, peace
officer, or authorized departmental employee has reasonable
grounds to believe that the prisoner has violated parole or a
warrant has been issued for his or her return under [MCL
791.238].
13
Although this provision mentions a warrant issued by the DOC, the
prosecutor stated at oral argument that the DOC does not always issue a
warrant. As noted earlier, a parolee may be arrested without a warrant
and detained if there are “reasonable grounds” to believe that he has
violated his parole. MCL 791.239.
14
This provision is often referred to as the “dead time” statute.
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of...availability” is effectively the date of his arrest.
See Browning v Michigan Dep’t of Corrections, 385
Mich 179, 188-189; 188 NW2d 552 (1971).
15
The phrase
“date of... availability” indicates that the parolee
resumes serving his earlier term of imprisonment when
arrested and detained in jail even though he has not yet
been returned to the physical custody of the DOC.
In sum, under MCL 791.238(2), the parolee is “liable,
when arrested, to serve out the unexpired portion of his
or her maximum imprisonment” and actually resumes
serving that term of imprisonment on the date of his
availability for return to the DOC, which in this case is
synonymous with the date of his arrest.
16
The parolee is
15
Browning held that “the phrase ‘date of availability’ means actual or
constructive availability for return to the Michigan penal system.”
Browning, supra at 189. Browning was decided before consecutive
sentencing was mandated for parolees who commit new felonies while on
parole. Also, as we noted in Browning, before 1968, the “dead time”
statute—that is, the statute defining the time that will not be counted as
time served for a parolee—used the language “date of arrest” instead of
“date of...availability.” Id. at 187. Our decision in Browning addressed
the disparity created between in-state and out-of-state parolees that
resulted from the DOC’s interpretation of “date of...availability” when
an out-of-state detainee was concerned. A 1969 DOC policy directive
instructed that, for an alleged parole violator arrested outside of Michi-
gan, “the date of availability will be the date on which the authorities in
the holding jurisdiction declare the alleged violator to be available for
return to Michigan.” See id. at 191. We noted that this interpretation
effectively imposed consecutive sentencing on an out-of-state parolee and
repudiated the DOC’s interpretation of “date of...availability” in this
context. Id. at 189. We held that “the phrase ‘date of availability’ means
actual or constructive availability for return to the Michigan penal
system. The arrest of a parolee, irrespective of the location of the arrest,
coupled with issuance of a parole violation warrant and good faith effort
to retake the parolee constitutes constructive availability.” Id.
16
Under Justice M
ARKMAN
’s interpretation of MCL 791.238(2), one does
not know whether the time served in jail is to be considered time served
against the parolee’s original maximum sentence until the parolee is
convicted or acquitted of the new criminal charges. At that point, if the
parolee is acquitted, “the [Parole] Board must then make a new determi-
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not incarcerated “because of being denied or unable to
furnish bond for the offense of which he is con-
victed....” MCL 769.11b. Because the parolee is re-
quired to remain in jail pending the resolution of the
new criminal charge for reasons independent of his
eligibility for or ability to furnish bond for the new
offense, the jail credit statute does not apply.
17
nation regarding how much of the ‘unexpired portion’ of the defendant’s
original sentence must be served before the defendant can once again be
paroled.” Post at 611-612. Only “[i]f the Board determines that the
defendant does have to serve an unexpired portion” will a defendant who
is “ ‘liable’ to serve the ‘unexpired portion’ ” of his original sentence be
considered to have served the time in jail against his original maximum
sentence. Post at 612. As explained in part V of this opinion, Justice
M
ARKMAN
’s analysis is based on a nonexistent statutory requirement. It is
also unnecessary. The meaning of “liable...toserve” is found within
MCL 791.238(2) itself: the parolee becomes liable, upon arrest, to resume
serving his original maximum sentence and actually resumes serving it
when he becomes “available”—actually or constructively—to the DOC.
See also the brief of the DOC as amicus curiae in response to
defendant-appellant’s application for leave to appeal in the case of People
v Wright, 474 Mich 1138 (2006) (Docket No. 128424), at 5 (“Once the
prisoner becomes parole eligible, the focus of the [DOC] is to keep track
of the remaining maximum sentence. When the prisoner is granted a
parole, each day on parole counts toward the service of the maximum
sentence as well. Even if a parole is revoked, the time spent on parole is
counted towards the service of the maximum sentence. The only time the
service of a sentence is suspended or stopped is if the prisoner escapes from
prison [see MCL 800.61] or if as a parolee the prisoner absconds from
parole supervision [see MCL 791.238(2)].”) (emphasis added).
17
We caution that, for a parolee who reached his maximum discharge
date while being held in jail, this independent reason would be removed.
If the parolee was then “denied or unable to furnish bond,” the sentenc-
ing court would be required to grant jail credit under MCL 769.11b.
See DOC Policy Directive No. 06.06.100, Parole Violation Process, § B
(February 26, 2007) (“If a parolee approaching his or her potential
maximum date is believed to have violated a condition of parole, the
parole violation process set forth in this policy will be expedited to ensure
it is completed prior to that date. Under no circumstances shall a parolee
be held on pending parole violation charges beyond his/her maximum
discharge date.”). The version of the policy directive in effect in 2006
contained an identical provision.
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In this case, defendant was paroled on May 10, 2005,
from multiple felony convictions. He committed the
instant offenses on November 23, 2006, and was ar-
rested on November 28, 2006. He remained in jail until
sentencing on March 6, 2007, when he was returned to
prison. He now seeks credit for those 98 days against his
new minimum sentence. Under MCL 791.238(2), how-
ever, defendant resumed serving the remaining portion
of his earlier sentences when he was arrested. He was
not serving time in jail “because of being denied or
unable to post bond” for the new offense, MCL 769.11b,
so the jail credit statute does not apply.
18
D. SENTENCING COURT DISCRETION TO GRANT JAIL CREDIT
We also reject defendant’s argument that a sentenc-
ing court retains discretion to grant credit
19
regardless
of the applicability of the jail credit statute.
20
As ex-
plained, the statutory scheme pertaining to parolees
dictates that defendant’s 98 days in jail were served
against his original maximum sentence. The sentencing
court had no discretionary authority to circumvent the
This exception does not apply here because defendant was not nearing
his maximum discharge date at the time of his arrest. According to
information available on the DOC’s Offender Tracking Information System,
defendant’s maximum discharge date before the new sentences were im-
posed was 2024 (defendant’s current maximum discharge date is listed as
2076, and his combined maximum for the new sentences is 52 years). See
<http://www.state.mi.us/mdoc/asp/otis2profile.asp?mdocNumber=124501>
(accessed July 30, 2009).
18
The court set a $500,000 bond in this case.
19
Before the Legislature enacted the jail credit statute, a criminal
defendant had no right to sentencing credit, and the matter was left to
the discretion of the sentencing court. Prieskorn, supra at 333.
20
Although there is language to the contrary in Adkins, supra at 751
n 10, the Court was not considering consecutive sentencing in that
case.
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operation of the statutory scheme. MCL 769.11b “nei-
ther requires nor permits” sentencing credit except as
provided in the statute. Prieskorn, supra at 340. “The
enactment of [MCL 769.11b] reflects the Legislature’s
intention to entitle every defendant in a criminal case to
the sentence credit described in the statute, instead of
leaving the matter to the discretion of sentencing
courts.” Id. at 333; see also Hoerstman Gen Contract-
ing, Inc v Hahn, 474 Mich 66, 74; 711 NW2d 340 (2006),
quoting Millross v Plum Hollow Golf Club, 429 Mich
178, 183; 413 NW2d 17 (1987), citing 2A Sands, Suth-
erland Statutory Construction (4th ed), § 50.05, pp
440-441 (“ ‘In general, where comprehensive legislation
prescribes in detail a course of conduct to pursue and
the parties and things affected, and designates specific
limitations and exceptions, the Legislature will be
found to have intended that the statute supersede and
replace the common law dealing with the subject mat-
ter.’ ”). Accordingly, the sentencing court lacked the
authority to grant defendant credit against his new
minimum sentence.
E. CONSTITUTIONAL CHALLENGES
Defendant also claims that he was subjected to “mul-
tiple punishments” in violation of the double jeopardy
clauses of the United States and Michigan constitu-
tions. US Const, Am V; Const 1963, art 1, § 15. We
disagree. “The double jeopardy clauses of the United
States and Michigan constitutions protect against gov-
ernmental abuses for both (1) multiple prosecutions for
the same offense after a conviction or acquittal and (2)
multiple punishments for the same offense.” People v
Calloway, 469 Mich 448, 450; 671 NW2d 733 (2003).
Defendant claims that because he did not receive credit
for the time he spent in jail awaiting sentencing on the
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new offenses, he “spent his time in jail awaiting convic-
tion and sentence as a separate, additional term for the
latter offense.” This is incorrect. As explained, defen-
dant continued to serve out his earlier sentence after he
was arrested. He was not subjected to multiple terms of
confinement for his new offenses.
Finally, defendant claims that denying credit toward
a parolee’s new minimum sentence violates due pro-
cess
21
and equal protection guarantees because it re-
sults in unequal treatment of similarly situated defen-
dants.
22
US Const, Am XIV, § 1; Const 1963, art 1, §§ 2
and 17. We reject defendant’s contention.
The equal protection clauses of the United States and
Michigan Constitutions are coextensive. Harvey, supra
at 6. Unless the legislation at issue creates a classifica-
tion based on “suspect” factors such as race, national
origin, or ethnicity, which trigger the highest level of
review (“strict scrutiny”), or factors such as gender or
illegitimacy, which require an intermediate level of
review (“heightened scrutiny”), it is reviewed under a
rational basis standard. Id. at 7-8. Defendant acknowl-
edges that rational basis review applies here.
Under rational basis review, “ ‘the statute is pre-
sumed constitutional, and the party challenging it bears
a heavy burden of rebutting that presumption.’ ” Id. at
7 (citation omitted). “To prevail under this highly
deferential standard of review, a challenger must show
that the legislation is arbitrary and wholly unrelated in
21
The substance of defendant’s argument focuses on equal protection;
he does not separately address the requirements of due process.
22
In his brief, defendant does not take issue with the DOC’s practices,
but with sentencing courts’ denial of credit: “Disparity is created not by
the MDOC parole violation process, but by the judicial practice to date of
denying jail credit to parolees who commit new crimes. This practice is
anchored by the belief that such offenders do receive credit, they just
receive it somewhere else.”
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a rational way to the objective of the statute.” Id.
(quotation marks and citations omitted). “ ‘Rational-
basis review does not test the wisdom, need, or appro-
priateness of the legislation, or whether the classifica-
tion is made with “mathematical nicety,” or even
whether it results in some inequity when put into
practice.’ ” Id. (citation omitted).
As is significant to each of defendant’s constitutional
arguments, parolees are situated differently from non-
parolee criminal defendants and, as a result, they do not
always enjoy the same “panoply of rights.” See Morris-
sey v Brewer, 408 US 471, 480; 92 S Ct 2593; 33 L Ed 2d
484 (1972) (“[T]he revocation of parole is not part of a
criminal prosecution and thus the full panoply of rights
due a defendant in such a proceeding does not apply to
parole revocations.”). A parolee is only conditionally
permitted to leave prison on parole. Parole is “a permit
to the prisoner to leave the prison, and not... a
release,” and “[w]hile at large, the paroled prisoner
shall be considered to be serving out the sentence
imposed by the court....” MCL 791.238(6). He “re-
main[s] in the legal custody and under the control of the
department.” MCL 791.238(1). As this Court explained
in In re Eddinger, 236 Mich 668, 670; 211 NW 54
(1926), the
purpose of a parole is to keep the prisoner in legal custody
while permitting him to live beyond the prison enclosure so
that he may have an opportunity to show that he can refrain
from committing crime. It is a conditional release, the
condition being that if he makes good he will receive an
absolute discharge from the balance of his sentence; but if
he does not make good he will be returned to serve his
unexpired time. [Emphasis added.]
See also Jones v Dep’t of Corrections, 468 Mich 646, 651;
664 NW2d 717 (2003) (“A prisoner enjoys no constitu-
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tional or inherent right to be conditionally released
from a validly imposed sentence.”).
Defendant claims that the denial of credit against a
parolee’s new minimum sentence results in unequal
treatment in two ways: first, it creates a disparity
between parolees and nonparolees because the latter
are granted credit, while the former are not, and,
second, it creates a disparity among parolees based on
the decision to plead guilty and other “arbitrary” fac-
tors that affect the parolee’s sentencing date.
The first claimed disparity arises from the applica-
tion of the jail credit statute, MCL 769.11b. As we have
explained, this statute does not apply to parolees upon
their arrest for new crimes. Rather, parolees are
granted credit against their earlier sentences for time
served in jail under MCL 791.238(2). Thus, both parol-
ees and nonparolees receive credit for time served.
Defendant may prefer credit on his new sentence, but
this is not what the statutes require. And it is entirely
rational for the Legislature to treat parolees and non-
parolees differently in this regard because parolees are
continuing to serve out existing prison sentences after
being granted mere conditional releases.
Second, defendant claims that denial of credit results
in a disparity among parole violators based on the
choice between a guilty plea and a jury trial, as well as
other “arbitrary” factors, such as the degree of docket
congestion. No statute, including MCL 791.238(2), the
jail credit statute, MCL 769.11b, and MCL 791.234(3),
which sets forth the method for computing the new
parole eligibility date, makes a distinction between a
parolee who pleads guilty and one who chooses to go to
trial. Even if the Legislature had created such a distinc-
tion, the United States Supreme Court has stated that
“there is no per se rule against encouraging guilty
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pleas” and has “squarely held that a State may encour-
age a guilty plea by offering substantial benefits in
return for the plea.” Corbitt v New Jersey, 439 US 212,
218-219; 99 S Ct 492; 58 L Ed 2d 466 (1978). Moreover,
this Court rejected a similar claim in Prieskorn, supra
at 341-342:
It may be that for defendants who find themselves
incarcerated for multiple unrelated offenses, one of the
motivations to plead guilty to some of the charges is the
desire to accelerate the imposition of sentence in order to
benefit, as much as possible, from Michigan’s concurrent
sentencing law. But that ingredient of a given defendant’s
motivation derives from the peculiar facts with which the
defendant facing multiple charges is confronted and not,
we think, from limiting application of the sentence credit
statute to those circumstances described by its terms. We
think it is clear that the Legislature sought, by the statute,
to give a criminal defendant a right to credit for any
presentence time served upon “the offense of which he is
convicted.” Judicial obedience to the language of the legis-
lation may, incidentally, indeed coincidentally, have the
effect of motivating a defendant, who is charged with
multiple offenses and who has posted bond for one offense
and was released, but who is incarcerated for a second
offense, to waive his right to trial and proceed to plead
guilty in the first case in order to get the sentencing clock
running on that conviction while awaiting final disposition
of the offense for which he is denied bond, or final resolu-
tion of an unrelated “hold” or “detainer.” However, that
motivation does not change the language of the statute and
should not be judicial excuse for applying the statute to
situations to which it does not extend.
To the extent the denial of credit against the new
minimum sentence results in some parole violators
reaching their parole eligibility dates earlier than oth-
ers on the basis of “arbitrary” factors such as docket
congestion or a judge’s illness, this does not amount to
a violation of equal protection. Any difference in treat-
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ment does not arise from any classification created by
the Legislature, and even when suspect factors are
involved, a disparate impact created by facially neutral
legislation does not necessarily amount to a violation of
the Equal Protection Clause. See Washington v Davis,
426 US 229, 242; 96 S Ct 2040; 48 L Ed 2d 597 (1976).
Further, because of parolees’ unique status, defendant
fails to meet the heavy burden of rebutting the pre-
sumption of constitutionality on this issue.
23
23
In his dissenting opinion, Justice M
ARKMAN
asserts that
the [Parole] Board’s current practice of failing to undertake its
statutory responsibilities, passively waiting for a defendant to be
convicted of a new crime, and then mechanically concluding that
the amount of time a defendant has spent awaiting trial on his new
offense automatically constitutes the remaining portion of the
original sentence that the defendant must serve, treats identically
situated defendants in a potentially widely disparate fashion....
[Post at 627.]
Justice M
ARKMAN
’s arbitrariness concern is grounded in his miscon-
ception of the statutory responsibilities of the Parole Board. As explained
in part V of this opinion, parole eligibility is purely a function of statute.
We acknowledge that factors such as docket congestion and a judge’s
illness affect the date a parolee is sentenced for a new offense, the date he
begins serving his new sentence, and, consequently, his new parole
eligibility date. But this arises from the operation of the statutory
scheme, not from any action—or inaction—of the Parole Board. As
Justice M
ARKMAN
acknowledges, post at 628 n 11, some arbitrariness will
always inhere in the criminal process.
Even Justice M
ARKMAN
’s interpretation of the statutory scheme does
not remove all arbitrariness. Justice M
ARKMAN
posits that when the
parolee is acquitted of the new criminal charges, “the Board must then
make a new determination regarding how much of the ‘unexpired
portion’ of the defendant’s original sentence must be served before the
defendant can once again be paroled. If the Board determines that the
defendant does have to serve an unexpired portion of his initial sentence,
the defendant will then be awarded credit for time served on his original
sentence.” Post at 611-612 (citations omitted).
To illustrate the arbitrariness that may result, assume Parolee A and
Parolee B are each arrested on the same date and charged on the same
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F. EXAMPLE CALCULATION
As a simple illustration of how the statutory scheme
operates to give credit against a parole violator’s origi-
nal maximum sentence, consider this example. An
offender is sentenced to 1 to 10 years in prison. He is
granted parole after serving his minimum sentence. No
time remains on his minimum sentence, and 9 years
remain on his maximum sentence. After 2 years on
parole, he commits an act that gives rise to a new felony
charge. After a week of “dead time” during which he is
not serving time against his prior sentence, he is
arrested on the new felony charge and again begins
serving the remaining portion of the prior sentence. At
that time, he has 7 years remaining on his maximum.
He spends 1 year in jail awaiting trial, conviction, and
sentencing on the new offense. Accordingly, on his
sentencing date, 6 years remain of his original maxi-
mum term. He receives a 2- to 5-year term of impris-
onment for the new offense.
Under MCL 791.234(3), the DOC calculates the new
parole eligibility date by adding the original minimum
date with new criminal offenses allegedly committed while on parole.
Both decide to go to trial and serve time in jail awaiting trial. Parolee A’s
jury trial is held one month after his arrest, and he is acquitted. Parolee
B’s trial is delayed for one year because of docket congestion, a judge’s
illness, or continuances requested by the prosecution for reasons unre-
lated to Parolee B’s case. Parolee B is also acquitted. According to Justice
M
ARKMAN
’s theory, the Parole Board is in each case required to determine
after acquittal whether the parolee is required to serve an “unexpired
portion” of his original sentence and, if so, how much. Assume that in the
case of each parolee, the Parole Board does so and determines that
neither is required to serve any “remaining portion.” Thus, under Justice
M
ARKMAN
’s theory, Parolee A is eligible for parole one month after arrest,
while Parolee B is eligible for parole one year after arrest. Even if both
receive credit against their original maximum sentences for the time
served in jail, Parolee B has suffered parole eligibility consequences for
arbitrary reasons.
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term and the new minimum term. Because the offender
has already served his entire original minimum term,
his new parole eligibility date is 2 years from the date of
sentencing on the new offense. The DOC calculates the
new maximum discharge date by adding the new maxi-
mum sentence imposed by the court (5 years) to the
offender’s original maximum sentence (10 years). Thus,
the offender’s new maximum term is 15 years. Because
he has already served 4 years of his original maximum
sentence, the offender’s new maximum term will expire
11 years from the date the new sentence was imposed.
IV. RESPONSE TO CHIEF JUSTICE KELLY
Chief Justice K
ELLY
agrees that defendant is not
entitled to jail credit under MCL 769.11b, but bases her
analysis on an interpretation of MCL 791.234(3)
24
that
leads to an illogical result, fails to account for the
broader statutory scheme, and is contrary to the long-
standing practice of the DOC approved by this Court in
Wayne Co Prosecutor.
When a prisoner is paroled after serving his original
minimum sentence and serves time on parole before
committing a subsequent offense while on parole, Chief
Justice K
ELLY
’s interpretation of MCL 791.234(3) would
effectively allow the offender to begin serving his new
minimum sentence before he commits the offense for
which that sentence was imposed. In some cases, this
will mean that the offender will, for parole eligibility
purposes, have served his entire new minimum sen-
tence before committing the crime. To illustrate, take
24
As the Chief Justice notes, her analysis applies equally to MCL
791.234(3) and MCL 791.234(4). Post at 589 n 2. Our response also
applies to both subsections. For consistency, we will continue to refer to
MCL 791.234(3).
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an offender who commits offense A and is sentenced to
a term of 2 to 10 years in prison. After serving his 2-year
minimum term, he is paroled. After 7 years on parole (9
years into his maximum sentence), the offender com-
mits offense B and is immediately arrested. He imme-
diately pleads guilty and is sentenced to a term of 2 to
10 years in prison for offense B. Chief Justice K
ELLY
posits that MCL 791.234(3) requires us to simply add all
the time the offender has served since the imposition of
the sentence for offense A—whether in prison, on
parole, or awaiting disposition of the new criminal
charges—to determine the offender’s new parole eligi-
bility date. Under this approach, the offender here
became eligible to be paroled from his sentence for
offense B after serving 4 years—5 years before he
committed offense B. We disagree with Chief Justice
K
ELLY
that this is what MCL 791.234(3) requires. MCL
791.234(3) states that for a prisoner “sentenced for
consecutive terms,” the Parole Board has jurisdiction
“when the prisoner has served the total time of the
added minimum terms....”TheDOC’s longstanding
practice of calculating a prisoner’s new parole eligibility
date, reflected in our example calculation above and
throughout our analysis, ensures that the parolee
serves “the total time of the added minimum terms”
while also accounting for the broader statutory scheme
applicable to parolees sentenced to consecutive terms of
imprisonment.
25
25
Chief Justice K
ELLY
attempts to support her interpretation with an
inapt comparison to a first-time offender being awarded jail credit for
time served before his sentence is imposed. Post at 597. In the case of
first-time offenders, the Legislature explicitly allowed that result by
enacting MCL 769.11b. Nothing in the plain language of MCL 769.11b,
however, suggests that credit may be applied to a time before the
sentencing offense was even committed. Accordingly, Chief Justice
K
ELLY
’s example is inapposite.
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Moreover, MCL 791.238(6) provides that “[w]hile at
large, the paroled prisoner shall be considered to be
serving out the sentence imposed by the court....”
Nothing in MCL 791.238(6) indicates that time a pris-
oner spends on parole from the original offense may be
counted as time served against a new minimum sen-
tence not yet imposed, for a crime not yet committed.
On the contrary, “serving out the sentence imposed by
the court” indicates that the paroled prisoner continues
to serve the sentence or sentences that exist at the time
he is on parole—the sentences he began serving in
prison and from which he was paroled. To use the
example provided by Chief Justice K
ELLY
, post at 598, a
defendant may serve time toward his maximum terms
for two separate consecutive sentences under the right
circumstances. When a defendant is paroled after being
convicted of a second offense and sentenced to a con-
secutive term of imprisonment, the defendant is then
actually serving out the combined maximum term for
the first and second offenses as calculated under MCL
791.234(3). Contrary to Chief Justice K
ELLY
’s assertion,
however, if the defendant commits a third offense while
on parole from the first and second offenses, the court
may not apply time served on parole before committing
the third offense toward the sentence that will be
imposed in the future for the third conviction. As noted
earlier, this contravenes the plain language of MCL
791.238(6).
Similarly, MCL 791.238(2) provides that a prisoner
who violates the terms of his parole “is liable, when
arrested, to serve out the unexpired portion of his or her
maximum imprisonment.” As previously discussed, the
prisoner resumes serving that unexpired portion of his
original maximum term on the date he becomes avail-
able for return to the DOC—in this case, the date of his
arrest. MCL 791.238(2) indicates that, after he is ar-
578 484 M
ICH
549 [July
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rested and becomes available for return to the DOC, the
offender is serving out his original maximum sentence—
not his yet-to-be-imposed new minimum sentence. Thus,
we disagree with Chief Justice K
ELLY
that “an affirmative
and individualized determination [by the Parole Board] is
the only proper mechanism for requiring the prisoner to
serve additional time only toward his maximum term.”
Post at 594.
Finally, Chief Justice K
ELLY
’s interpretation of MCL
791.234(3) is inconsistent with Wayne Co Prosecutor.
The defendant in that case was originally sentenced to
6 to 15 years in prison. He was paroled after serving
about 6 years and 2 months in prison. After nearly 2
years on parole, the defendant committed another of-
fense for which he was sentenced to 3
1
/
2
to 10 years in
prison. Before turning to the effect of newly enacted
MCL 768.7a(2), we noted that
[i]f the foregoing statutory provisions [MCL 791.234(3) and
MCL 791.238(5)] were the only provisions applicable, [the
defendant] clearly could be paroled after serving three and
a half years on the breaking and entering conviction. He
had already served more than the six-year minimum im-
posed for the armed robbery conviction before he was
returned to prison. [Wayne Co Prosecutor, supra at 573
(emphasis added).]
We rejected the prosecutor’s contention that MCL
768.7a(2) impliedly repealed MCL 791.234(3) and MCL
791.238(5) and held that MCL 768.7a(2) extended to
parolees the same consecutive sentencing treatment to
which prisoners who commit crimes while incarcerated
and escapees were subjected under former MCL
768.7a(1). Id. at 577-578. We explained the DOC’s
longstanding method of calculating the new parole
eligibility date as follows:
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For over forty years, the department has computed the
eligibility for parole of an inmate who commits a crime in
prison or an escapee who commits a crime while escaped by
adding the consecutive minimum terms of all the offenses
for which he is incarcerated in state prison. Thus, consecu-
tive sentences imposed on persons who, while incarcerated
or on escape, commit another crime will commence to run
when the total of the minimum sentences imposed for prior
offenses has been served. Accordingly, if an inmate or
escapee, who has served beyond his minimum term, com-
mits an offense while incarcerated or while on escape, the
“consecutive” sentence would commence to run immedi-
ately.[Id. at 579-580 (second emphasis added).]
Thus, in Wayne Co Prosecutor, we understood MCL
791.234(3), MCL 791.238(5), and MCL 768.7a(2) to
mean that if a parolee sentenced to a consecutive term
of imprisonment for a crime committed while on parole
had already served his original minimum sentence, his
new minimum sentence would begin to run immedi-
ately. We did not suggest that a parolee could begin
serving his new minimum sentence before committing
the crime for which it was imposed.
The DOC’s longstanding method of calculating a
prisoner’s new parole eligibility date yields logical re-
sults, complies with MCL 791.234(3), and is consistent
with the statutory scheme relevant to parolees sen-
tenced to consecutive terms of imprisonment for crimes
committed while on parole. We approved the DOC’s
practice as consistent with the consecutive sentencing
mandate of MCL 768.7a(2) in Wayne Co Prosecutor, and
neither party here takes issue with the practices of the
DOC or the Parole Board. We find it puzzling that Chief
Justice K
ELLY
would replace the DOC’s practice with an
approach that yields illogical results, is inconsistent
with Wayne Co Prosecutor, and fails to account for the
relevant statutory scheme.
580 484 M
ICH
549 [July
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V. RESPONSE TO JUSTICE MARKMAN
Justice M
ARKMAN
constructs his analysis around a
misconception that the Parole Board is statutorily re-
quired to make a “remaining portion” determination
after a parolee is convicted or acquitted of a new crime
allegedly committed while on parole. He posits that the
Parole Board is required to decide how much, if any, of
a defendant’s unexpired original maximum sentence he
would otherwise (absent the second sentence) be re-
quired to serve before becoming eligible for parole. But
parole eligibility is a function of statute, not Parole
Board discretion, and there is no statutory requirement
that the Parole Board make the affirmative determina-
tion Justice M
ARKMAN
proposes.
Justice M
ARKMAN
’s theory proceeds as follows. A
prisoner is granted parole once he has served his
minimum term of imprisonment. MCL 791.234(1). Af-
ter his arrest for allegedly committing a new crime
while on parole, the offender serves time in jail. De-
pending on whether the offender is convicted or acquit-
ted, he may be serving that time against his original
maximum sentence or his yet-to-be imposed new mini-
mum sentence. Once the offender is convicted or acquit-
ted of the new criminal charge, the Parole Board is
required to convene and make an affirmative determi-
nation about what, if any, “remaining portion” of his
original sentence the offender must serve before becom-
ing eligible for parole (if acquitted) or beginning to
serve his new sentence (if convicted). If the offender is
acquitted of the new criminal charge, the time served in
jail will be credited against his original maximum
sentence. If the offender is convicted of the new offense,
however, the offender is not considered to have been
serving his original maximum sentence while in jail.
Instead, he must be granted credit against his new
2009] P
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minimum sentence under MCL 769.11b. That credit
must be “awarded as a component of the second of-
fense,” but it “cannot actually be applied until the
second sentence is commenced.” Accordingly, the new
sentence is “suspended until the defendant serves the
remaining portion of his original sentence.” Once the
defendant has served that “remaining portion,” he
begins serving his new sentence and the jail credit is
applied.
Aside from the problem of its astounding complexity,
this interpretation is premised on a nonexistent statu-
tory requirement. Recall that a prisoner is generally
eligible for parole when he has “served a period of time
equal to the minimum sentence imposed by the
court....”MCL791.234(1).
26
Justice M
ARKMAN
asserts
that, after conviction or acquittal of the new criminal
charges, the Parole Board is required to “make an
affirmative determination as to whether the defendant
is required to serve any remaining portion on his
original sentence....” Post at 619. He explains that
“when the [Parole] Board determines the remaining
portion of a defendant’s original sentence, it is essen-
tially undertaking a discretionary decision about when
the defendant would have been eligible for parole on his
original sentence given the violation he committed
while on parole.” Post at 616. Thus, Justice M
ARKMAN
’s
analysis is based on the idea that the P arole Board is
required to determine how much time a parolee who
violates his parole, but is not convicted of a second crime
in connection with that parole violation, must serve “in
order to be eligible for parole once again on his original
sentence....”Post at 615-616. He believes that the parol-
26
Justice M
ARKMAN
acknowledges that “the date of [the defendant’s]
parole eligibility is determined by MCL 791.234(1)....”Post at 604.
582 484 M
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ee’s parole eligibility date for the original offense
changes or may change because the parolee has violated
his parole.
The flaw in Justice M
ARKMAN
’s theory is that parole
eligibility is a function of statute: MCL 791.234. Unless
a new sentence is imposed consecutive to the original
sentence, in which case the offender’s new parole eligi-
bility date is then governed by MCL 791.234(3), the
offender’s parole eligibility date does not change. The
defendant’s parole eligibility remains governed by MCL
791.234(1) and, therefore, the defendant was and is
eligible for parole when he has served his original
minimum sentence. Absent a new prison sentence that
would bring parole eligibility within the ambit of MCL
791.234(3), the offender’s parole eligibility is unaffected
by a finding of a parole violation. To be sure, the Parole
Board has the discretion to revoke parole in that situa-
tion,
27
but that does not alter the offender’s status as
eligible for parole. Indeed, the Parole Board is not
required to revoke parole even if the evidence supports
the parole violation allegation by a preponderance of
the evidence.
28
We find no statutory support for Justice
M
ARKMAN
’s underlying conclusion that a parole viola-
tion alone may change the parole eligibility date previ-
ously calculated under MCL 791.234(1) by making it a
matter of the Parole Board’s discretion.
29
27
“After a prisoner is released on parole, the prisoner’s parole is subject
to revocation at the discretion of the parole board for cause as provided
in this section.” MCL 791.240a(1).
28
“If a preponderance of the evidence supports the allegation that a
parole violation occurred, the parole board may revoke parole....”MCL
791.240a(10) (emphasis added).
29
Justice M
ARKMAN
quotes various sentences from the DOC’s amicus
curiae brief in support of the proposition that the Parole Board is
statutorily required to make a “remaining portion” determination but
has “abandoned its responsibility in this respect....”Post at 617 n 6.
2009] P
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“An agency such as the DOC has no inherent author-
ity, and the limitations of its power and authority ‘must
be measured by the statutory enactments from which it
is created.’ ” People v Holder, 483 Mich 168, 175 n 21;
767 NW2d 423 (2009) (citation omitted). The Parole
Board has the discretionary authority to grant or deny
parole, MCL 791.233; MCL 791.234(1), (3), and (4);
MCL 791.235. Once it has granted a prisoner parole, the
Parole Board also has the authority to “discharge[] [the
In its amicus curiae brief, the DOC emphasizes that it lacks sentenc-
ing authority and that its discretionary authority lies in determinations
of parole worthiness. When one reads the entire brief, it is clear that the
DOC is stating that the Parole Board “does not exercise its discretion” to
make a “remaining portion” determination because it lacks the authority
to do so. In addition, the DOC’s amicus curiae brief repeatedly refers the
reader to its brief in People v Wright, 474 Mich 1138 (2006). There, the
DOC explained:
After a parolee is returned to prison with a new consecutive
prison sentence, the Parole Board does nothing, since the
prisoner is not yet parole eligible as a matter of law until the
new minimum sentence is served. It is meaningless for the
Parole Board to attempt to make a prediction as to what their
parole decision will be one, two, or more years in the future
when the prisoner becomes parole eligible. However, unlike the
situation of a prisoner returned to prison with a new conviction
and consecutive sentence, if a prisoner is merely returned to
prison as a parole violator for a ‘technical violation’ such as
testing positive for alcohol while on parole release for an OUIL
3rd offense, the prisoner is still parole eligible, but the Parole
Board has determined that the prisoner is no longer parole
worthy. The Parole Board does not sentence the parole violator
for a ‘technical violation’ to a new minimum sentence since the
Parole Board does not have such power. Rather, the Board sets
a new ‘continuation date’ at which time they will again review
the prisoner for parole worthiness. The concept of a ‘continua-
tion date’ is not reserved for parole violators only. If any
prisoner is not granted a parole when they first become parole
eligible by serving their minimum sentence, the Parole Board
sets a new ‘continuation date,’ typically 12, 18, or 24 months in
the future, when the prisoner will again be reviewed for parole
worthiness. [Brief of the DOC, n 16 supra at 14-15 (emphasis in
original).]
584 484 M
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prisoner] upon satisfactory completion of the parole.”
MCL 791.234(3). In addition,
[i]f a prisoner other than a prisoner subject to disciplinary
time has 1 or more consecutive terms to serve in addition to
the term he or she is serving, the parole board may
terminate the sentence the prisoner is presently serving at
any time after the minimum term of the sentence has been
served. [MCL 791.234(5).]
Finally, if the parolee violates the terms of his parole,
the Parole Board has the authority to revoke parole.
MCL 791.240a. None of these statutorily defined func-
tions of the Parole Board includes a requirement that
the Parole Board make an “affirmative determination
of how long the defendant must serve on [his first]
sentence.” Post at 617.
Instead, Justice M
ARKMAN
locates the “remaining
portion” requirement in MCL 791.234(1), as discussed
above, MCL 791.241, and MCL 768.7a(2), as interpreted
in Wayne Co Prosecutor. MCL 791.241 provides, in full:
“When the parole board has determined the matter it
shall enter an order rescinding such parole, or reinstat-
ing the original order of parole or enter such other order
as it may see fit.” Justice M
ARKMAN
concludes that this
constitutes a statutory requirement that the Parole
Board make an affirmative “remaining portion” deter-
mination because it provides that “the Board ‘shall’
enter an order taking some action after determining
whether a parole violation has occurred ....” Post at
631 n 14. MCL 791.241 requires the Parole Board to
enter an order rescinding parole, reinstating parole, or
some other order “as it may see fit” once it has been
determined whether the parolee violated his parole.
Nothing in that provision requires the Parole Board to
make a decision about how much additional time, if any,
a parolee is required to spend in prison before being
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paroled on some predetermined future date. Moreover,
when, as here, the parole violation is “conviction for a
felony or misdemeanor punishable by imprisonment,”
the Parole Board does not “determine[] the matter,”
MCL 791.241, by holding a parole violation hearing
because no parole violation hearing is required. MCL
791.240a(3).
30
Justice M
ARKMAN
locates the “affirmative determina-
tion” requirement on which his analysis is based in the
following discussion of MCL 768.7a(2) in Wayne Co
Prosecutor, supra at 584: “whatever portion, between
the minimum and the maximum, of the earlier sentence
that the Parole Board may, because the parolee violated
the terms of parole, require him to serve.”
31
As is
apparent from the statutes that pertain to the authority
of the board (such as MCL 791.234, MCL 791.234, and
MCL 791.240a), the Parole Board “requires” the pa-
rolee “to serve” by exercising its statutory authority to
revoke parole, MCL 791.240a, and therefore delay the
possibility of discharge, MCL 791.234(3), and by declin-
ing to exercise its discretion under MCL 791.234(5) to
terminate the sentence the parolee is presently serving.
The Parole Board may account for previous parole
violations in making these decisions. See MCL
30
Justice M
ARKMAN
also states that MCL 791.233e “provides additional
guidance” to the Parole Board in making the “remaining portion”
determination.
MCL 791.233e(1) requires the Parole Board to establish parole
guidelines to “govern the exercise of the parole board’s discretion...as
to the release of the prisoners on parole ....Thepurposeoftheparole
guidelines shall be to assist the parole board in making release decisions
that enhance the public safety.” (Emphasis added.) There is no reference
there, or anywhere else in the statutory scheme, to a “remaining portion”
determination.
31
Chief Justice K
ELLY
shares a similar interpretation. See post at
593-594.
586 484 M
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549 [July
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791.233e(2)(d). We find no statutory requirement that
the Parole Board make an affirmative “remaining por-
tion” determination. Had this Court in Wayne Co Pros-
ecutor understood MCL 768.7a(2) to impose a new
requirement on the Parole Board, we presumably would
have said so.
32
Thus, in addition to our disagreement with his inter-
pretation of the jail credit statute, MCL 769.11b, we
conclude that Justice M
ARKMAN
’s approach to jail credit
is inconsistent with the statutory scheme pertaining to
the authority of the Parole Board and is not required by
MCL 768.7a(2) or our decision in Wayne Co Prosecutor.
Finally, even assuming that Justice M
ARKMAN
is correct
that this Court could order the Parole Board to make
individualized “remaining portion” determinations
without running afoul of Warda v Flushing City Coun-
cil, 472 Mich 326; 696 NW2d 671 (2005),
33
post at 618 n
6, we question whether it would be advisable to do so. At
the very least, such an order would require a major
restructuring of the Parole Board’s policies and proce-
dures. In addition, the DOC’s current practice of con-
sidering a parolee’s new sentence to begin running on
the date it is imposed for purposes of parole eligibility
applies equally to all prisoners. If this Court ordered the
32
We also disagree with Justice M
ARKMAN
that a “remaining portion”
determination requirement emerges from some combination of MCL
791.234(1), MCL 768.7a(2), and MCL 791.241. We believe the preceding
discussion of these statutes makes it clear that there is no such require-
ment.
33
Under Warda, supra at 336-337, if
a statute empowers a governmental agency to undertake a discre-
tionary decision, and provides no limits to guide either the
agency’s exercise of that discretion or the judiciary’s review of that
exercise, the decision is not subject to judicial review absent an
allegation that the exercise of that discretion was unconstitu-
tional.
2009] P
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Parole Board to make individualized “remaining por-
tion” determinations, the Parole Board would be free to
establish variable standards that would generally be
unreviewable by the courts under Warda.
VI. CONCLUSION
Under MCL 791.238(2), defendant resumed serving
his original maximum sentences when he was arrested
in connection with the new criminal offense. Regardless
of his eligibility for bond or his ability to furnish it,
defendant remained in jail because he was serving those
earlier sentences. Accordingly, the jail credit statute,
MCL 769.11b, does not apply. The sentencing court
lacked authority to grant defendant credit against his
new minimum sentence because doing so would be
inconsistent with the statutory scheme. Finally, denial
of credit against defendant’s new minimum sentence
did not subject him to multiple punishments for the
same offense, and he has failed to show that the denial
of credit against his new minimum sentence violated
equal protection.
Affirmed.
W
EAVER
,Y
OUNG
, and H
ATHAWAY
, JJ., concurred with
C
ORRIGAN
,J.
K
ELLY
,C.J.(concurring in part and dissenting in
part). I agree with the majority that a parolee incarcer-
ated on new criminal charges is not entitled to jail credit
under MCL 769.11b. If the parolee is convicted, the
court may not award credit against the sentence it
imposes for time the parolee spent in jail awaiting trial.
But I reach that conclusion for different reasons than
the majority finds appropriate.
588 484 M
ICH
549 [July
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ELLY
, C.J.
In this case, I believe that the 98 days defendant
served in jail should have been considered time served
toward the minimum term calculated under MCL
791.234.
1
The existing application of the consecutive
sentencing scheme may also be unconstitutional as
applied to similarly situated parolees.
THE CONSECUTIVE SENTENCING STATUTES
Persons who are convicted of offenses committed
while they are on parole are automatically subject to
consecutive sentences under MCL 768.7a(2), which
provides:
If a person is convicted and sentenced to a term of
imprisonment for a felony committed while the person was
on parole from a sentence for a previous offense, the term
of imprisonment imposed for the later offense shall begin
to run at the expiration of the remaining portion of the
term of imprisonment imposed for the previous offense.
MCL 791.234 specifies how consecutive sentences
must be calculated.
2
MCL 791.234(3) states:
If a prisoner other than a prisoner subject to disciplin-
ary time is sentenced for consecutive terms, whether
received at the same time or at any time during the life of
the original sentence, the parole board has jurisdiction over
the prisoner for purposes of parole when the prisoner has
served the total time of the added minimum terms, less the
good time and disciplinary credits allowed by statute. The
1
MCL 791.234 determines when the Parole Board acquires jurisdiction
to parole a prisoner serving consecutive indeterminate sentences.
2
All analyses of MCL 791.234(3) in this opinion apply with equal force
to MCL 791.234(4), which concerns prisoners subject to disciplinary time.
The two subsections are identical with respect to when the parole board
has jurisdiction and the calculation of a new maximum term. MCL
791.234(3) merely alters the calculation to account for good time or
disciplinary credits, which are not available for prisoners subject to
disciplinary time under MCL 791.234(4).
2009] P
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maximum terms of the sentences shall be added to compute
the new maximum term under this subsection, and dis-
charge shall be issued only after the total of the maximum
sentences has been served less good time and disciplinary
credits, unless the prisoner is paroled and discharged upon
satisfactory completion of the parole.
Finally, MCL 791.238(6) states that a parolee is
considered to be serving his or her sentence while on
parole:
A parole shall be construed as a permit to the prisoner to
leave the prison, and not as a release. While at large, the
paroled prisoner shall be considered to be serving out the
sentence imposed by the court and, if he or she is eligible
for good time, shall be entitled to good time the same as if
confined in a state correctional facility.
Discerning how to correctly give force to each of these
statutes is a difficult task. Unlike the majority, I do not
agree that existing practices give proper effect to the
statutory language. I believe than the key to the correct
interpretation is the timing of the Parole Board’s cal-
culation of a consecutive sentence under MCL
791.234(3).
APPLICATION OF THE SENTENCING STATUTES
MCL 768.7a(2) provides for consecutive sentences for
all paroled offenders who are convicted of and sen-
tenced for a new felony committed while they were on
parole for their original offense. Once the parolee is
sentenced for the new offense, the Parole Board calcu-
lates the date when he or she will again be eligible for
parole pursuant to MCL 791.234(3).
Under MCL 791.234(3), a prisoner must serve “the
total time of the added minimum terms” before becom-
ing eligible for parole. The parolee’s new parole eligibil-
ity date is computed by considering first how much time
590 484 M
ICH
549 [July
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ELLY
, C.J.
the parolee must serve, then determining how much
time the parolee “has served.”
MCL 791.234(3) therefore defines when the Parole
Board has jurisdiction to parole a prisoner serving
consecutive indeterminate sentences. It does so by
combining the terms of the old and new sentences into
one aggregate term. The minimum and maximum
terms of the old and new sentences are added together.
The result is a single term with one minimum and one
maximum. The new minimum and maximum set the
new boundaries of the time a prisoner must serve.
It is only when this aggregate, single term has been
determined that the Parole Board can calculate the
parolee’s new parole eligibility date.
3
Thus, calculating
what constitutes “time served” is inevitably a retroac-
tive exercise. The Parole Board does not determine a
defendant’s new parole eligibility date until after he or
she is sentenced for the new offense.
Under the current practice of the Department of
Corrections (DOC), the minimum sentence of a paroled
defendant who offends again does not begin until the
date of sentencing. Consequently, the Parole Board does
not acquire jurisdiction over that defendant until he or
she has served the equivalent of the minimum term of
that new offense. That term is measured from the date
of sentencing on the new offense.
However, this practice does not reflect what the
statute requires. The statute mandates only that the
prisoner serve an amount of time equal to the added
minimum terms of incarceration. That time served
includes (1) time served in prison on the original
3
This conclusion is based on common sense. Until the minimum terms
of a parolee’s consecutive sentences are combined, the Parole Board
cannot know how much minimum time the parolee must serve before
again becoming eligible for parole.
2009] P
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, C.J.
offense, (2) time served on parole for the original
offense, according to MCL 791.238(6), and (3) time
spent in jail awaiting disposition of the new charges.
The parties do not dispute that the Parole Board
lacks authority to alter a defendant’s sentence. It can-
not add time to the minimum sentence already served.
4
As we have noted:
[C]onsecutive sentences imposed on persons who, while
incarcerated or on escape, commit another crime will
commence to run when the total of the minimum sentences
imposed for prior offenses has been served.
[
5
]
In Wayne Co Prosecutor, we also observed that the
“Legislature’s intent in enacting [MCL 768.7a(2)] was
simply to extend the statutory provisions of [MCL
768.7a(1)] to parolees....”
6
The Parole Board has not
only the authority but a statutory obligation to use the
terms of sentences imposed by courts in order to
calculate both (1) the earliest point at which a prisoner
may be released on parole and (2) the point at which he
or she must be discharged from prison.
I conclude that the plain meaning of “total time” in
the clause “when the prisoner has served the total time
of the added minimum terms” must apply to all time
served. Generally, no remaining portion remains on a
defendant’s minimum term when he or she is paroled.
Therefore, any time served on parole or in jail awaiting
disposition of new charges should be counted as time
served toward the aggregate minimum sentence. Wayne
Co Prosecutor erred to the extent it went beyond that
4
Normally, a defendant’s minimum sentence has run when he or she is
paroled.
5
Wayne Co Prosecutor v Dep’t of Corrections, 451 Mich 569, 580; 548
NW2d 900 (1996) (emphasis in original).
6
Id. at 581.
592 484 M
ICH
549 [July
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ELLY
, C.J.
language and concluded that the consecutive sentence
would commence immediately upon the parolee’s new
offense. That conclusion does not take into account the
timing of the Parole Board’s calculation of a defendant’s
added minimum terms under MCL 791.234(3).
My interpretation is consistent with this Court’s
interpretation of MCL 768.7a(2) and truer to its holding
in Wayne Co Prosecutor. In that case, we also held that
the “remaining portion” clause of [MCL 768.7a(2)] re-
quires the offender to serve at least the combined mini-
mums of his sentences, plus whatever portion, between the
minimum and the maximum, of the earlier sentence that
the Parole Board may, because the parolee violated the
terms of parole, require him to serve.
[
7
]
We therefore rejected the prosecutor’s argument
that MCL 768.7a(2) requires a prisoner to serve his or
her entire original maximum sentence before begin-
ning to serve his or her new minimum sentence.
Under MCL 791.234(3), the Parole Board lacks juris-
diction over the prisoner for the purposes of parole
until he or she reaches the new parole eligibility date.
However, after the prisoner is sentenced for the new
offense, the Parole Board clearly has the authority to
require the prisoner to serve an additional portion of
the original maximum sentence. This is due to his or
her parole violation. As indicated by the use of the
permissive language from Wayne Co Prosecutor,
“may... require him to serve,” the Parole Board
need not add time.
In current practice, however, the Parole Board does
not make such a decision. It passively treats time served
in prison before sentencing for a new offense, however
long that may be, as time served for the defendant’s
7
Id. at 584.
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parole violation.
8
But this time served is currently
counted only toward the defendant’s original maximum
sentence.
9
I believe that this policy does not constitute a
discretionary decision. Therefore, I believe Warda v
Flushing City Council
10
is not applicable.
I believe that the Parole Board may exercise its
discretion to decide whether a prisoner eligible for
parole will serve additional time in prison because of a
parole violation. However, I also believe that such an
affirmative and individualized determination is the
only proper mechanism for requiring the prisoner to
serve additional time only toward his maximum term.
The DOC’s current practice also raises troubling ques-
tions about the constitutionality of its treatment of
similarly situated individuals.
11
CRITICISMS OF MY APPROACH
I disagree with the majority and Justice M
ARKMAN
that my interpretation contravenes consecutive sen-
8
The DOC’s policy states that “[a] parolee convicted of a felony while on
parole who receives a new sentence to be served with the Department shall
be found to have violated parole based on that new conviction and sentence.
A parole revocation hearing is not required.” MDOC P olicy Directive
06.06.100, § T, effective February 26, 2007. The policy does not address the
issue of how much additional time must be served in prison for the parole
violation.
9
This policy directly contravenes MCL 791.234(3) as well as the state-
ment from Wayne Co Prosecutor that consecutive sentences begin running
when the total of the minimum sentences imposed for prior offenses has
been served. See my previous discussion of Wayne Co Prosecutor.
10
Warda v Flushing City Council, 472 Mich 326; 696 NW2d 671 (2005).
There, the majority held that discretionary decisions made by legislative and
executive agencies are unreviewable by the courts. However, the Warda
majority also noted that “[w]here decision-making falls outside the scope of
such discretion, such decision-making would be fully subject to judicial
review.” Id. at 333 n 3.
11
See the constitutional arguments section later in this opinion.
594 484 M
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tencing. When someone has been convicted of multiple
offenses and received a consecutive sentence, time he or
she serves is not credited to the minimum sentences for
more than one conviction. In contrast, under a concur-
rent sentence, any time served is applied to all prison-
ers’ minimum sentences.
Under my interpretation of MCL 769.11b, consistent
with a consecutive sentence, a prisoner’s time served
would never be applied toward more than one minimum
sentence. Time served would not be applied toward the
second minimum sentence until the first minimum
sentence had been served. Time served might be applied
against the minimum term of a new sentence and the
maximum term of the old sentence at the same time.
But, under Michigan’s indeterminate sentencing
scheme, minimums and maximums are often served
concurrently, even when consecutive sentencing ap-
plies.
12
Indeed, the current application of MCL
791.234(3) applies time served by reoffending parolees
to satisfy the minimum sentence of the new offense and
the maximum sentence of the old offense simulta-
neously. This occurs because the maximum sentence for
the old offense has not been served when the convict is
resentenced. The time left is incorporated into the
offender’s new combined maximum sentence.
Moreover, I disagree with the majority opinion that
my interpretation is undermined by MCL 791.238(6).
As discussed previously, the Parole Board has no au-
thority to alter a defendant’s sentence. A defendant’s
early release date is not calculated until after the
minimum and maximum terms of both consecutive
12
In Wayne Co Prosecutor, this Court rejected the argument that
Michigan’s consecutive sentencing scheme requires offenders to serve the
entire maximum sentence of their original offense before beginning a
new minimum sentence. Wayne Co Prosecutor, supra at 579-584.
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sentences have been added together. I believe that all
the time that a defendant has served should be applied
toward that aggregate term, as calculated by the Parole
Board pursuant to MCL 791.234(3). I reject the majori-
ty’s contention that the Legislature intended that time
spent on parole should count only toward the sentence
imposed by the court before the prisoner was paroled.
13
The majority’s conclusions are premised on an erro-
neous assumption: A prisoner serving an existing
prison term while awaiting trial for a new offense
cannot be considered to be serving time toward a new
sentence that is imposed after the trial. The error in
this assumption is illustrated by examining the appli-
cation of jail credit to the sentences of first-time offend-
ers. While a first-time offender is in jail awaiting trial,
he is not serving his sentence. He has not yet been
convicted, and there is no sentence to serve. But once
convicted, he is considered to have been serving the
sentence while in jail awaiting trial.
Similarly, while a parolee is incarcerated awaiting
trial for new criminal conduct, he or she cannot be
serving his or her new sentence because it does not yet
exist; he or she is only serving his or her prior sentence.
But once the second sentence has been imposed, MCL
791.234(3) becomes operative. Only at that point can
the new aggregate term governing the prisoner’s incar-
ceration be computed. The minimum terms of both
sentences are added together, as are the maximum
terms of both sentences.
13
The majority’s observation that the word “imposed” is written in the
past tense does not undercut my conclusion. The timing of the Parole
Board’s determinations is the focal point. Because time served is calcu-
lated after a prisoner’s minimum terms are added together, the prisoner’s
time spent on parole is time served on the sentence “imposed”—past
tense—by the court.
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At that point, it is relevant to ask, with respect to
parole eligibility and maximum discharge dates, how
much time the prisoner has served. MCL 791.238(6)
indicates that the parolee is considered to have been
serving his sentences while on parole. That none of the
sentences existed at the time he was deemed to be
serving them is not inherently problematic.
14
The same
result occurs with the award of jail credit to a first-time
offender. While in jail, a first-time offender is similarly
considered to have been serving a sentence that did not
yet exist.
The “sentence imposed by the court” referenced in
MCL 791.238(6) should not be given the overly restric-
tive meaning that the majority ascribes to it.
15
This is
made clear by MCL 8.3b, which provides that in con-
struing statutes,
14
While vigorously and repeatedly protesting that “the plain language
of MCL 791.238(6)” does not allow such a result, the majority provides
scant support for why this is so. Indeed, its sole basis for this conclusion
is that my interpretation would contravene consecutive sentencing. As
explained earlier in this opinion, I disagree that my approach contravenes
consecutive sentencing.
15
The majority advances one additional reason why my opinion is
contrary to the plain language of MCL 791.238(6). Apparently, the
majority would require that a statute affirmatively state that a prisoner
may be credited for time served before the sentencing offense was
committed. Otherwise, that result cannot be a feasible interpretation.
Ante at 577-578 & n 25. I reject the notion that absent statutory language
stating “a prisoner may be credited for time served before the sentencing
offense was committed,” one cannot discern such an interpretation. As
noted, an analysis of the applicable statutes in context with one another
supports such an interpretation. Moreover, MCL 791.238(6) specifically
does provide, without limitation, that prisoners on parole are “serving
outthesentenceimposedbythecourt....”
The majority’s limitation on MCL 791.238(6) never gives effect to the
timing of the Parole Board’s calculation of time served. Nor does the
majority squarely address that when read together, MCL 791.234 and
MCL 791.238(6) require that all time served count as time served toward
a prisoner’s added minimum terms.
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[e]very word importing the singular number only may
extend to and embrace the plural number, and every word
importing the plural number may be applied and limited to
the singular number.
Thus, even though MCL 791.238(6) refers to a single
sentence, it may properly be considered to reference
multiple sentences, including those being served con-
secutively.
Furthermore, MCL 791.238(6) credits all parolees for
time served while on parole, whether they are serving two
sentences imposed consecutively, or three or more. An-
other example illustrates how this occurs. A prisoner is
paroled from a single sentence and receives a consecutive
sentence for a new felony committed while on parole. The
prisoner is paroled again and commits a third felony
resulting in a third consecutive sentence. In what sense
was the prisoner serving out the “sentence imposed by the
court”? Quite literally, the prisoner was not actually
serving a single sentence imposed by a court. Rather, the
prisoner was serving a combined term of imprisonment
computed by the DOC under MCL 791.234(3) after the
prisoner’s second offense. This combined term is an ag-
gregate term with added minimums and added maxi-
mums. That combined term included two sentences im-
posed by the court as its component parts. Thus, it is not
a failure of logic to read MCL 791.238(6) to mean that,
while on parole, parolees are serving sentences imposed by
the court. They are serving all of them, including the one
imposed for the most recent episode of new criminal
conduct committed while on parole.
I also disagree with the assertion in the majority’s
and Justice M
ARKMAN
’s opinions that my interpretation
leads to “illogical” or “anomalous” results.
16
Most of
16
Ante at 576, 580; post at622n9.
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this criticism is that my interpretation could result in a
repeat offender being deemed eligible for parole imme-
diately upon being sentenced for a new offense. Clearly,
such a situation could occur. But, of course, the Parole
Board always has the discretion not to grant parole.
Therefore, the situation does not constitute the absurd
result of a repeat offender likely being paroled without
serving time for a second offense. Certainly, it does not
warrant disregarding the statutory language.
I offer this hypothetical example by way of illustra-
tion of what MCL 791.234(3) requires: An offender is
sentenced to 1 to 10 years in prison. The offender is
granted parole after serving the minimum sentence. No
time remains on the minimum sentence, and 9 years
remain on the maximum sentence. After 2 years on
parole, the offender commits an act that gives rise to a
new felony charge. The offender is immediately ar-
rested and jailed. At that time, the offender has 7 years
remaining to serve on the maximum sentence.
The offender then spends 1 year in jail awaiting trial,
conviction, and sentencing on the new offense. Accord-
ingly, on the sentencing date, 6 years remain to be
served on the original maximum term.
The offender receives a 7- to 15-year term of imprison-
ment for the new offense. Under MCL 791.234(3), the
DOC calculates the new parole-eligibility date by adding
the new minimum term (7 years) and the minimum term
of his original sentence (1 year). His new minimum term
is 8 years. The DOC calculates the new maximum dis-
charge date by adding the new maximum sentence (15
years) to the original maximum sentence (10 years). Thus,
the offender’s new maximum sentence is 25 years.
17
17
All the parties agree that it is the court that sets the terms of the
respective judgments of sentence that the DOC uses to determine the
new minimum and maximum terms.
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The key question is how much time has the offender
served toward this newly calculated 8- to 25-year term
by the time the DOC calculates it? I conclude that under
a plain reading of MCL 791.234(3), the offender has
served 4 years of that sentence: 1 in prison on the
original offense, 2 on parole, and 1 while incarcerated
awaiting trial for the new offense. Therefore, in the
hypothetical example, the offender is eligible for parole
4 years after sentencing for the new offense.
THE JAIL CREDIT STATUTE
MCL 769.11b provides:
Whenever any person is hereafter convicted of any crime
within this state and has served any time in jail prior to
sentencing because of being denied or unable to furnish bond
for the offense of which he is convicted, the trial court in
imposing sentence shall specifically grant credit against the
sentence for such time served in jail prior to sentencing.
I agree with the majority that this statute does not
apply to parolees who offended again and spend time in
jail awaiting disposition of the new charges against
them. But my rationale is different. Because the time
served in jail counts as “time served” on the aggregate
minimum term calculated by the DOC, a parolee is not
entitled to other credit for such time. If the parolee were
to receive credit against the court’s sentence for the
offense committed while on parole, the parolee would
receive double credit for the same time. This Court has
consistently rejected this outcome in other contexts.
18
CONSTITUTIONAL ARGUMENTS
Members of this Court, including myself, have previ-
ously observed that the practices at issue appear to
18
See, e.g., People v Patterson, 392 Mich 83; 219 NW2d 31 (1974).
600 484 M
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arbitrarily treat similarly situated parolees differently,
presenting potential violations of those individuals’
constitutional rights.
19
As the majority correctly ob-
serves, defendant here does not specifically challenge
the practices of the DOC but argues that the judicial
practice of denying jail credit to parolees is unconstitu-
tional. Because I conclude that MCL 791.234(3) re-
quires time served in jail under these circumstances to
count toward a defendant’s new minimum sentence, I
need not reach defendant’s constitutional arguments.
Because a majority of the Court rejects my reading of
the statutes, however, I am compelled in dissenting to
remark on the possible constitutional violation presented
by the current scheme. The current treatment of parolees’
time served is, in my view, so irrational and arbitrary as to
risk failing constitutional muster. Parolees who commit
identical crimes and who receive identical sentences may
serve vastly different sentences solely on the basis of the
date of sentencing. The date sentencing occurs is influ-
enced by factors outside the parolee’s control, including
docket congestion, a judge’s illness or vacation time, or the
prosecutor’s speed in pursuing the case. The current
system allows these factors to determine how much time
served is credited against a convict’s sentences, and it
results in disparate treatment.
Equally troubling are circumstances where there is a
disparity in sentencing dates because a parolee exercises
his or her constitutional right to a trial on his or her
second offense. The majority is correct that “ ‘there is no
per se rule against encouraging guilty pleas’....”
20
How-
ever, I submit that the current practice of applying
19
People v Wright, 474 Mich 1138 (2006) (M
ARKMAN
, J., dissenting);
People v Conway, 474 Mich 1140 (2006) (K
ELLY
, J., dissenting).
20
Ante at 572-573, quoting Corbitt v New Jersey, 439 US 212, 218-219;
99 S Ct 492; 58 L Ed 2d 466 (1978).
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time served may be unconstitutional because the dis-
parate treatment and resulting promotion of guilty
pleas is “ ‘needless.’ ”
21
Finally, I take note that courts have expressed objec-
tions to the present practice for almost 20 years,
22
yet
neither the Legislature nor the DOC has addressed it. I
would not allow their failure to grasp the nettle to
prevent us from finally doing so today.
CONCLUSION
I agree with the majority that MCL 769.11b does not
apply to parolees held in prison on new criminal
charges. However, I reach this conclusion because time
served in jail awaiting disposition of new charges should
be considered time served toward a defendant’s aggre-
gate minimum term under MCL 791.234(3). Finally, I
am concerned that the existing application of the statu-
tory scheme to prisoners who offend again while on
parole is unconstitutional.
Therefore, I would direct the Parole Board to recal-
culate defendant’s parole eligibility date using the
analysis herein.
C
AVANAGH
, J., concurred with K
ELLY
, C.J.
M
ARKMAN
,J.(dissenting). I respectfully disagree with
the majority’s conclusion that MCL 769.11b, the “jail
21
Corbitt, supra at 219 n 9.
22
See, e.g., People v Watts, 186 Mich App 686, 691 n 4; 464 NW2d 715
(1991) (“[T]his inequitable situation could be resolved in a number of
ways.... For that matter, a strict reading of MCL 791.234(2); MSA
28.2304(2) could be applied, the two minimum terms added together, and
the parole date calculated accordingly....[W]hileweurgetheLegisla-
ture to address this issue, we decline to do so ourselves.”). Justice W
EAVER
was on the Court of Appeals panel that decided Watts.
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credit” statute, is inapplicable to a defendant who
spends time in jail awaiting sentencing for a new crime
committed while he is on parole. In accordance with
MCL 769.11b, “any person” is entitled to jail credit
when he is “denied or unable to furnish bond for the
offense of which he is convicted....” (Emphasis
added.) Because a defendant who commits a new crime
while on parole is unquestionably “unable” to furnish
bond for the new offense for which he is convicted, he is
entitled to jail credit. Contrary to the majority’s view, it
is of no consequence whether a defendant was unable to
furnish bond “because of” a parole detainer, as defen-
dant here was, as long as he was unable to post bond
“for the offense of which he was convicted ....”Thus,
defendant should have received 98 days of jail credit
toward the sentence for his new offense for the time he
spent incarcerated while awaiting sentencing on his
new offense. However, the majority not only disallows
the award of jail credit under MCL 769.11b, but it does
so without fully addressing the very significant problem
of arbitrariness that arises under its interpretation.
That is, the majority’s interpretation leads to a situa-
tion in which identically situated defendants may be
treated in a widely disparate fashion on the basis of
entirely serendipitous factors, such as an assistant
prosecutor’s diligence or a judge’s vacation schedule.
Because I believe the majority has erred in its interpre-
tation of the relevant statutes, I dissent.
I. ANALYSIS
The ultimate issue in this case is whether, under
MCL 769.11b, defendant is entitled to jail credit for the
time he was incarcerated awaiting sentencing for a
crime he committed while on parole. Because a proper
resolution of this issue involves the interrelation of
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several different statutes, I will begin this analysis by
providing an overview of how the parole process oper-
ates and will then discuss how the relevant statutes
relate to one another by applying these provisions to a
hypothetical defendant.
A. PAROLEES AND TIME SERVED
As a general matter, when a defendant is convicted of
a felony, he is sentenced to an indeterminate term of
imprisonment and is incarcerated, thereby being placed
in the custody of the Michigan Department of Correc-
tions (DOC). He then begins serving his sentence, and
the date of his parole eligibility is determined by MCL
791.234(1), which provides:
Except as provided in [MCL 791.234a], a prisoner sen-
tenced to an indeterminate sentence and confined in a state
correctional facility with a minimum in terms of years
other than a prisoner subject to disciplinary time is subject
to the jurisdiction of the parole board when the prisoner
has served a period of time equal to the minimum sentence
imposed by the court for the crime of which he or she was
convicted, less good time and disciplinary credits, if appli-
cable.
Thus, once the defendant serves an amount of time
“equal to the minimum sentence,” he is eligible for
parole and may be paroled by the Parole Board (the
Board). Assuming the Board grants the defendant
parole, he then becomes a parolee and, according to
MCL 791.238(6), continues to serve out the unexpired
portion of his sentence while on parole. MCL
791.238(6) provides: “A parole shall be construed as a
permit to the prisoner to leave the prison, and not as
a release. While at large, the paroled prisoner shall be
considered to be serving out the sentence imposed by
the court.”
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To illustrate how these statutes operate together,
assume a defendant has been convicted of a crime and
is sentenced to a term of 5 to 10 years’ imprisonment.
After serving the minimum 5-year term, the defen-
dant becomes eligible for parole, and the Board
decides to grant the defendant parole, thereby mak-
ing him a parolee. The parolee spends 1 year on
parole and then commits a new crime, which means
that he has now served a total of 6 years on his
original 5- to 10-year sentence. However, once he is
incarcerated for allegedly committing a new offense,
the “unexpired portion” of the initial sentence, along
with how the parolee’s time spent in jail pending a
determination of whether he violated his parole is
allocated, is determined, in part, by MCL 791.238,
which states:
(1) Each prisoner on parole shall remain in the legal
custody and under the control of the department....
Pending a hearing upon any charge of parole violation, the
prisoner shall remain incarcerated.
(2) A prisoner violating the provisions of his or her
parole and for whose return a warrant has been issued by
the deputy director of the bureau of field services is treated
as an escaped prisoner and is liable, when arrested, to serve
out the unexpired portion of his or her maximum impris-
onment. The time from the date of the declared violation to
the date of the prisoner’s availability for return to an
institution shall not be counted as time served.
Notably, subsection 2 only states that a parolee, after
being reincarcerated, is “liable” to serve out the “unex-
pired portion” of his first offense, not that he automati-
cally resumes serving that term. Being “liable” to serve
out the unexpired portion of the original sentence is
not, as assumed by the majority, the equivalent of
automatically continuing to serve that sentence, as a
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parolee does while he remains on parole.
1
See MCL
791.238(6). This conclusion is supported by the distinc-
tive language of MCL 791.238(6) and MCL 791.238(2),
each of which establishes, in a different context, when a
defendant is and is not considered to be serving out his
original sentence.
In MCL 791.238(6), the Legislature specifically re-
quires that a prisoner “shall” be considered serving out
the unexpired portion of his initial sentence while on
parole. MCL 791.238(2), on the other hand, only states
that a parolee is “liable” to serve out the “unexpired
portion” of his first sentence, but does not require that
he automatically resume serving that unexpired por-
tion. MCL 791.238(2) also clarifies, using mandatory
language (“shall not”), when a parolee is not to receive
credit toward his original sentence. If the Legislature
1
The majority concludes that a defendant who is arrested for commit-
ting a new crime while on parole automatically continues serving his
original sentence using the following analysis:
Because a paroled prisoner is considered to be serving his
sentence as long as he remains in compliance with the terms of his
parole, MCL 791.238(6), except “from the date of the declared
violation to the date of the prisoner’s availability for return to an
institution,” MCL 791.238(2), the second part of MCL 791.238(2)
establishes that the time after “the date of the prisoner’s avail-
ability for return to an institution” is to be counted as time served
against the parolee’s original sentence. [Ante at 565.]
Although the majority’s assumption that a prisoner resumes serving time
on his original sentence as soon as he becomes available for return to the
institution is not unreasonable when MCL 791.238(2) is read indepen-
dently of other relevant statutes, the majority’s interpretation of MCL
791.238(2), in conjunction with the jail credit statute and other relevant
statutory provisions, strongly suggests that this analysis is incorrect.
More specifically, as will be discussed in part I(C) infra, a defendant who
violates parole by committing a new crime cannot serve his new sentence
concurrently with his original sentence. See MCL 768.7a(2). Thus, when
a prisoner receives jail credit toward the sentence for his new offense, he
cannot also be serving time toward the sentence for his original offense.
606 484 M
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had intended that a parolee who is arrested for a new
crime while on parole automatically continues serving
time toward the sentence for his first offense, it could
have used the same definite language (“shall”) as it did
in MCL 791.238(6). However, because MCL 791.238(2)
instead uses permissive language (“is liable ...to
serve”), rather than the same mandatory language used
in MCL 791.238(6), it becomes necessary to examine
whether a defendant is actually serving time toward his
original sentence when he is arrested for a new crime
while on parole. The answer to this question depends on
whether the defendant’s parole violation ultimately
leads to a subsequent conviction of another crime for
which jail credit can apply.
If a defendant is arrested because of a parole viola-
tion that does not constitute a new criminal offense,
and the Board requires the defendant to serve an
additional amount of the unexpired portion of his first
sentence, then there is no question that any time the
parolee spends reincarcerated must be credited as time
served toward his original sentence because there is no
other sentence to which that time can be credited.
However, if a defendant is arrested for a new crime
while on parole, MCL 768.7a(2), as discussed in part
I(C) infra, prohibits the defendant from serving his
original and new sentence concurrently, which means
that the only way to know if the defendant is serving
time toward his original sentence is to determine if the
parolee will receive jail credit for his new sentence once
he is convicted. If he does receive jail credit, then
despite the fact that he remains liable to serve out the
unexpired portion of his initial sentence, he will not
have actually been doing so during the time he was
reincarcerated. Thus, in order to determine whether a
defendant who is arrested for committing a new crime
will be entitled to credit for time served on his original
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sentence for which he remains liable, it becomes neces-
sary to determine whether a defendant in this situation
receives jail credit toward his new sentence.
B. JAIL CREDIT
The jail credit statute, MCL 769.11b, states:
Whenever any person is hereafter convicted of any
crime within the state and has served any time in jail prior
to sentencing because of being denied or unable to furnish
bond for the offense of which he is convicted,...[the court]
shall specifically grant credit against the sentence for such
time served in jail prior to sentencing.
MCL 769.11b applies to “any person,” not just non-
parolees who spend time in jail awaiting trial. Addition-
ally, the jail credit statute applies to a variety of situa-
tions by requiring that “any” defendant “shall” be
awarded jail credit when he is incarcerated awaiting
sentencing “because of being denied or unable to fur-
nish bond for the offense of which he is convicted ....”
The statute is silent with respect to the reason that a
defendant is being held, and only requires that he spend
time in jail “because of being denied or unable to post
bond for the offense of which he is convicted,” which
means that a defendant is entitled to jail credit on his
new sentence as long as he cannot post bond for the new
offense, regardless of the reason. However, the majority,
by relying on this Court’s decision in People v Prieskorn,
424 Mich 327; 381 NW2d 646 (1986), which interpreted
the jail credit statute in a similar context, construes
MCL 769.11b as requiring that a defendant be denied or
unable to post bond because of the offense for which he
is convicted in order to be eligible for jail credit.
2
Prieskorn held:
2
The majority states:
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We believe the sentence credit statute neither re-
quires nor permits sentence credit in cases, such as the
one before us, where a defendant is released on bond
following entry of charges arising from one offense and,
pending disposition of those charges, is subsequently
incarcerated as a result of charges arising out of an
unrelated offense or circumstance and then seeks credit
in the former case for that later period of confinement.
***
We agree that the primary purpose of the sentence
credit statute is to “equalize as far as possible the status of
the indigent and less financially well-circumstanced ac-
cused with the status of the accused who can afford to
furnish bail.”
***
Had the Legislature intended that convicted defendants
be given sentence credit for all time served prior to sen-
tencing day, regardless of the purpose for which the pre-
sentence confinement was served, it would not have con-
ditioned and limited entitlement to credit to time served
[W]e hold that the jail credit statute does not apply to a parolee
who is convicted and sentenced to a new term of imprisonment for
a felony committed while on parole because, once arrested in
connection with the new felony, the parolee continues to serve out
any unexpired portion of his earlier sentence unless and until
discharged by the Parole Board. For that reason, he remains
incarcerated regardless of whether he would otherwise be eligible
for bond before conviction on the new offense. He is incarcerated
not “because of being denied or unable to furnish bond” for the
new offense, but for an independent reason.[Ante at 562-563
(emphasis added).]
Again, however, the statute says nothing about the “reason” that a
defendant is unable to post bond or has his bond denied; rather, it applies
as long as he is actually denied or unable to furnish bond. It is simply
irrelevant under MCL 769.11b that a defendant is unable to post bond
because of a parole detainer.
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“for the offense of which [the defendant] is convicted.” [Id.
at 340-341 (citation omitted).]
In other words, the majority agrees with Prieskorn’s
reasoning, which subtly alters the statute by requiring
that a defendant must be denied or unable to post bond
for a reason attributable to the new offense. Prieskorn’s
analysis is flawed for two reasons. First, Prieskorn’s
initial premise, i.e., that the jail credit statute was
intended to equalize the existing disparate treatment
between indigent and non-indigent defendants, is incor-
rect. MCL 769.11b simply states that “any person” who
is “denied or unable to furnish bond for the offense of
which he is convicted” is entitled to jail credit on the
sentence for the new offense. The statute does not state
that its purpose is to remedy differing treatment of
indigent and non-indigent defendants. Indeed, the re-
quirement of MCL 769.11b that any person be awarded
jail credit if the person is “denied or unable to furnish
bond” conclusively rebuts Prieskorn’s suggested pur-
pose. That is, although a defendant may be unable to
furnish bond because of indigency, he is never denied
bond for that reason. Thus, the majority’s resolution of
whether MCL 769.11b applies to defendant in this case
cannot rely on Prieskorn’s stated purpose.
Second, Prieskorn quoted the jail credit statute out of
context by stating that the Legislature “conditioned
and limited entitlement to credit to time served ‘for the
offense of which [the defendant] is convicted.’ ” Id.at
341. A full reading of MCL 769.11b reveals that no such
condition or limitation exists. MCL 769.11b merely
requires that jail credit be awarded if a defendant is
“unable to furnish bond for the offense of which he is
convicted....”Requiring that a defendant be unable to
post bond “for” an offense is significantly different from
stating that a defendant can only receive credit based
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on “time served for the offense.” In essence, both
Prieskorn and the majority rewrite the phrase “denied
or unable to furnish bond for the offense of which he is
convicted” to say “unable or denied bond because of the
offense for which he was convicted.” This is not an
interpretation consistent with the actual statute, and I
therefore reject it.
MCL 769.11b only requires that, if a defendant is
incarcerated awaiting trial and is “denied or unable to
furnish bond for the offense of which he is convicted,”
then he “shall” be awarded jail credit. The statute does
not place an additional qualification or restriction on a
defendant’s right to receive jail credit by stating that
the denial or inability to furnish bond must be because
of the new crime. As a result, in a situation in which a
defendant is arrested for a new crime while on parole,
the defendant will be “unable to furnish bond for the
offense of which he is convicted” because of a parole
detainer that is placed on him by the DOC.
3
Further, if
a defendant requests bond, it will be “denied” by the
trial court for the same reason, in which case he will
then be “unable” to post bond due to the denial. Thus,
when a defendant is arrested for a new crime while on
parole, and is ultimately convicted, as was defendant in
this case, he is entitled to jail credit.
If, however, a parolee is not actually convicted of the
newly charged offense, then he obviously cannot be
awarded jail credit because there is no new “offense of
which he is convicted.” In that situation, the Board
must then make a new determination regarding
3
A parole detainer is levied on defendants who are arrested while on
parole. The detainer prevents a defendant from being released from
confinement until the Board makes its determination of how much time
he must serve on the “unexpired portion” of his original offense. See
MCL 791.238(1) and (2).
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how much of the “unexpired portion” of the defendant’s
original sentence must be served before the defendant
can once again be paroled. See MCL 791.233; MCL
791.233e; MCL 791.234(11); MCL 791.238(2). If the
Board determines that the defendant does have to serve
an unexpired portion of his initial sentence, the defen-
dant will then be awarded credit for time served on his
original sentence. It is only in this scenario in which a
defendant who is “liable” to serve the “unexpired
portion” of his initial sentence under MCL 791.238(2)
that the defendant must receive credit for time served
toward his original sentence. Once the defendant serves
that additional portion of his original sentence, he can
be paroled again and, upon successful completion, have
his sentence discharged. MCL 791.234(3) and (4).
Returning to the scenario in which the defendant has
committed a new crime while on parole, assume that
the defendant spends exactly 1 year in jail between the
time of his arrest and sentencing. During that time, the
defendant is unable to post bond because of a parole
detainer. Similarly, if the defendant does request bond,
it will be denied by the trial court for the same reason.
After being convicted of the new crime, the defendant is
sentenced to a new 5- to 10-year term of imprisonment.
The question then becomes whether the 1-year period
that the defendant spent in jail is credited toward the
original or new sentence. Recall that MCL 791.238(2)
renders the reincarcerated defendant “liable” to serve
out the “unexpired portion” of his original sentence.
Additionally, the Board does not make its determina-
tion of how much, if any, additional time the defen-
dant must serve on his original sentence until he is
convicted or acquitted of the new crime.
4
Thus, the
4
When a defendant violates his parole by engaging in conduct other
than committing a new criminal offense, the Board is required to
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determination whether to allocate the time a defendant
spent in jail as time served on his original sentence or as
hold a series of hearings under MCL 791.239a (“probable cause” hearing)
and MCL 791.240a (“parole revocation” hearing). However, when a
defendant violates his parole by committing a felony or misdemeanor
punishable by imprisonment, MCL 791.240a implicitly allows a formal
trial, or acceptance of a plea agreement, to serve as a substitute. MCL
791.240a(3) states:
Within 45 days after a paroled prisoner has been returned or is
available for return to a state correctional facility under accusation
of a parole violation other than conviction for a felony or misde-
meanor punishable by imprisonment under the laws of this state,
the United States, or any other state or territory of the United
States, the prisoner is entitled to a fact-finding hearing on the
charges before 1 member of the parole board or an attorney
hearings officer designated by the chairperson of the parole board.
[Emphasis added.]
In light of this provision, the DOC enacted guidelines. The most recent
version provides, in pertinent part:
M. A parolee who is charged with violating a condition of parole
is entitled to a preliminary parole revocation hearing conducted
pursuant to Administrative Rule 791.7740 through 791.7750 to
determine if there is probable cause to believe that s/he violated
parole except under the following circumstances:
1. The parolee has been bound over to the Circuit Court on a
criminal charge for which s/he also is charged with parole viola-
tion. In such cases, probable cause for that parole violation charge
is established based on the court’s action....
2. The parolee has been convicted of a criminal charge for which
s/he also is charged with parole violation. This includes a conviction
by trial or by guilty or nolo contendre [sic] (i.e., no contest) plea. In
such cases, probable cause for that parole violation charge is estab-
lished based on the conviction.
***
T. A parolee convicted of a felony while on parole who receives
a new sentence to be served with the Department shall be found to
have violated parole based on that new conviction and sentence. A
parole violation hearing is not required. [DOC Policy Directive No.
06.06.100, Parole Violation Process (February 26, 2007) (emphasis
in original).]
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jail credit toward his new sentence can only be made
at the time of sentencing for the new crime, or shortly
before, because the trial court may only award jail
credit at sentencing and not at any time thereafter.
Here, the hypothetical defendant was sentenced to a
new term of imprisonment on the basis of his new
criminal offense and was unable to furnish bond for
this new offense while he was awaiting trial. There-
fore, the jail credit statute applies, and the defendant
is awarded 1 year of jail credit toward his new offense.
However, awarding jail credit creates a tension be-
tween MCL 769.11b and the consecutive sentencing
statute, MCL 768.7a(2), which requires that a defen-
dant serve the “remaining portion” of his original
sentence before beginning his new sentence, as de-
scribed below.
C. CONSECUTIVE SENTENCING AND PAROLE ELIGIBILITY
After awarding jail credit to a defendant who was
incarcerated for committing a new offense while on
parole, it becomes necessary to examine MCL 768.7a(2),
which establishes a consecutive sentencing require-
ment as follows:
If a person is convicted and sentenced to a term of
imprisonment for a felony committed while the person was
on parole from a sentence for a previous offense, the term
of imprisonment imposed for the later offense shall begin
to run at the expiration of the remaining portion of the
term of imprisonment imposed for the previous offense.
Thus, because the Board does not determine whether parole will be
revoked until a defendant has been convicted, or has accepted a plea
agreement, for a new crime, the Board necessarily does not compute how
much time the defendant will be required to serve on his unexpired
original sentence until that time as well.
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The pivotal component of this provision is that a
defendant’s “term of imprisonment imposed for the
later offense shall begin to run at the expiration of the
remaining portion of the term of imprisonment imposed
for the previous offense.” At first glance, awarding jail
credit for a defendant’s second sentence before he has
completed the remaining portion of his first sentence
appears inconsistent with the consecutive sentencing
scheme established by MCL 768.7a(2). Yet, upon a
closer evaluation of how the “remaining portion”
phrase in MCL 768.7a(2) relates to MCL 769.11b, this
potential conflict is alleviated.
In Wayne Co Prosecutor v Dep’t of Corrections, 451
Mich 569, 584; 548 NW2d 900 (1996), this Court inter-
preted MCL 768.7a(2) and stated:
We conclude that the “remaining portion” clause of
[MCL 768.7a(2)] requires the offender to serve at least the
combined minimums of his sentences, plus whatever por-
tion, between the minimum and the maximum, of the
earlier sentence that the Parole Board may, because the
parolee violated the terms of parole, require him to serve.
As an initial matter, it is important to distinguish the
phrase “unexpired portion,” as used in MCL 791.238(2),
from “remaining portion,” as used in MCL 768.7a(2).
The unexpired portion of a sentence is the time that
remains on a defendant’s entire indeterminate sentence
and that can be discharged after the defendant success-
fully completes parole.
5
The remaining portion of a
5
It should also be noted that the “remaining portion” of the original
sentence is distinct from the concept of “discharge,” see MCL 791.234(3)
and (4), and the concept of “termination,” see MCL 791.234(5). A
“discharge” is only secured after a parolee successfully completes his
parole. MCL 791.242; MCL 791.234(3) and (4). In the case of a defendant
who has a single sentence, he can be paroled, successfully complete that
parole, and then be discharged. In the case of a defendant who was on
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defendant’s original sentence, on the other hand, rep-
resents the time that a defendant who violates his
parole would otherwise have to serve in order to be
eligible for parole once again on his original sentence if
he had not been sentenced for a new consecutive
sentence, which is why Wayne Co Prosecutor described
the “remaining portion” as the period of time that the
Board “may, because the parolee violated the terms of
parole, require him to serve.” Thus, when the Board
determines the remaining portion of a defendant’s
original sentence, it is essentially undertaking a discre-
tionary decision about when the defendant would have
been eligible for parole on his original sentence given
the violation he committed while on parole. In other
words, MCL 768.7a(2) establishes a sensible require-
ment that a defendant who violates his parole should
first have to serve out whatever “remaining portion”
he would have to serve on the “unexpired portion” of
his original sentence before the new minimum term
on the second offense can begin to run. Such a
requirement ensures that a defendant will serve at
parole for an initial offense and violated his parole by committing a new
crime, the defendant will be required to serve the remaining portion of
his sentence, be paroled, successfully complete parole, and then be
discharged.
The Board’s power to “terminate” a sentence is established by MCL
791.234(5) and is applicable as follows:
If a prisoner other than a prisoner subject to disciplinary time
has 1 or more consecutive terms remaining to serve in addition to
the term he or she is serving, the parole board may terminate the
sentence the prisoner is presently serving at any time after the
minimum term of the sentence has been served.
Thus, serving the remaining portion of the original sentence does not
relieve the defendant of his liability to serve the entire maximum term of
that sentence because the original sentence is neither discharged nor
terminated.
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least all the minimum time for each individual consecu-
tive sentence that was imposed.
Therefore, before a defendant who is unsuccessful in
completing his parole because he committed a subse-
quent crime can begin serving his second sentence, he
must first serve out the remaining portion of his first
sentence, which, as noted by Wayne Co Prosecutor, must
be established by the Board’s affirmative determination
of how long the defendant must serve on that sentence.
6
6
That the Board is, according to both Wayne Co Prosecutor and MCL
768.7a(2), required to make a discretionary determination concerning
the remaining portion of the defendant’s original sentence is of
particular significance in this case. In order for it to render this
determination, MCL 791.233e(1) requires that the DOC establish
guidelines “that shall govern the exercise of the parole board’s
discretion . . . as to the release of prisoners on parole under this act,”
which the DOC here has done. MCL 791.233e(2) then provides
additional guidance by describing the types of factors that are relevant
to making parole decisions, e.g., the “offense for which the prisoner is
incarcerated,” the “prisoner’s institutional conduct,” “the prisoner’s
prior criminal record,” and so forth. These factors must be evaluated
by the Board in determining whether the defendant must serve any
remaining portion on his initial sentence.
However, in practice, the Board seems to have abandoned its respon-
sibility in this respect by allowing the remaining portion to be established
solely by how long it takes the defendant to proceed to trial, or accept a
plea agreement, on the new offense. Indeed, in its amicus curiae brief, the
DOC repeatedly acknowledged that it does not exercise any discretion in
this regard by stating that “as a matter of policy, the Department does
not impose any additional sanction on a defendant who violates a parole
and is given a new prison sentence”; “the Department does not exercise
its discretion and tack on another period of time on top of the new
established minimum date before an inmate becomes parole eligible”;
and “as a matter of policy, the Department merely recalculates the
sentence under the statutes for the defendant by adding the remaining
portions of the minimum (if any) and the maximum from the original
sentence with the minimum and maximum of the new conviction.” Thus,
the Board currently does not, as required by the statute, the DOC
guidelines, and Wayne Co Prosecutor, make any affirmative determina-
tion using the relevant considerations regarding what amount of time a
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Wayne Co Prosecutor, 451 Mich at 582 (observing that
the Board must make such a determination, given the
Court’s “conclusion that the Legislature did not intend
[MCL 768.7a(2)] to repeal all discretion held by the
Parole Board”). Further, because, the defendant cannot
begin serving his second sentence until he has com-
pleted the remaining portion of his original sentence,
awarding jail credit in addition to allocating the time
served to the original sentence would allow for double-
counting of the time served, which would result in a
concurrent sentence, in violation of MCL 768.7a(2).
Thus, a defendant who violates his parole by commit-
ting a new crime can only receive credit toward one
sentence, and because the jail credit statute requires
that credit be given toward the new sentence, a defen-
dant cannot also have the time served allocated to his
original sentence in this situation.
Of particular importance to this analysis, and be-
cause jail credit must be awarded as a component of the
second offense, which cannot begin to run until the
remaining portion of the first sentence is completed, the
defendant must serve on the remaining portion of his first sentence. It is
this failure that is currently causing identically situated defendants to be
treated differently on the basis of entirely arbitrary factors, as discussed
in part II. That is, identically situated defendants are being required to
serve widely disparate remaining portions of their original sentences on
the basis of the serendipitousness of how long it takes them to proceed to
sentencing, regardless of whether that time has any relation to the
severity of the original offense or the new crime that constitutes the
parole violation.
Because the Board concedes that it is not undertaking any decision in
this regard, this Court should, at a minimum, order that it do so. By
issuing such an order, this Court would not run afoul of our holding in
Warda v Flushing City Council, 472 Mich 326, 333 n 3; 696 NW2d 671
(2005), which “precludes the judiciary from reviewing the discretionary
decision-making of legislative and executive agencies.” (Emphasis de-
leted.) Issuing an order of this sort would simply require the Board to
undertake the very type of discretionary decision the law requires.
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awarded jail credit cannot actually be applied until the
second sentence is commenced. By not immediately
applying such credit, the new sentence will be sus-
pended until the defendant serves the remaining por-
tion of his original sentence. Once the time remaining
on that sentence has been completed, the new sentence
begins and the previously awarded jail credit is then
applied. Thus, by requiring the defendant to serve the
entire remaining portion of his original offense before
jail credit is applied to his new sentence, the consecutive
sentencing regime in MCL 768.7a(2) is given full effect.
Continuing with the earlier hypothetical example,
recall that the defendant has served 6 years of his
original sentence and, while on parole, is subsequently
arrested for committing a new crime. Assume that the
defendant now spends exactly 1 year in jail before being
sentenced to another term of 5 to 10 years for his new
offense. Pursuant to MCL 769.11b, that 1 year is
awarded as jail credit once the defendant has been
sentenced for the new offense and will ultimately be
applied toward the second sentence, which leaves the
total amount of time already served on his first sen-
tence at 6 years. After the conviction, the Board is then
required to make an affirmative determination as to
whether the defendant is required to serve any remain-
ing portion on his original sentence, which I will pre-
sume for purposes of this example is an additional 2
years. Therefore, the defendant must now serve an-
other 2 years on his first sentence after he has been
sentenced for the new offense, and none of the time
spent between arrest and sentencing will be credited
toward his original sentence. After the defendant serves
the additional 2 years on his original sentence, he will
have served a total of 8 years on the first sentence (5
years in prison + 1 year on parole + 2 years in prison
after his new conviction). It is at this point that the
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defendant will be considered to have served the remain-
ing portion of his original sentence and can begin
serving his new sentence. Upon beginning his new
sentence, the defendant’s jail credit is applied. Thus,
once the second sentence begins, the defendant will be
considered to have served 1 year toward the new 5- to
10-year sentence.
At this point, it becomes necessary to determine the
defendant’s new parole-eligibility date. For calculating
such a date when there is a newly imposed consecutive
sentence, MCL 791.234(3)
7
provides:
If a prisoner other than a prisoner subject to disciplin-
ary time is sentenced for consecutive terms, whether
received at the same time or at any time during the life of
the original sentence, the parole board has jurisdiction over
the prisoner for purposes of parole when the prisoner has
served the total time of the added minimum terms....
[
8
]
7
Although I refer to MCL 791.234(3) throughout this opinion, this
analysis is equally applicable to MCL 791.234(4), which is nearly identical
to MCL 791.234(3). The only distinction between these two provisions is
that MCL 791.234(4) applies to prisoners who are “subject to disciplinary
time,” whereas MCL 791.234(3) does not. For purposes of resolving the
issue currently before this Court, this distinction is not relevant.
8
To avoid any confusion, it must be noted that although “the parole
board has jurisdiction over the prisoner for purposes of parole when the
prisoner has served the total time of the added minimum terms,” MCL
791.234(3), this does not alter the Board’s responsibility to make a
determination of the remaining portion of the defendant’s sentence
under MCL 768.7a(2) after conviction of the new offense. This is so
because, although the “remaining portion” decision does affect the date
for which the defendant is eligible for parole, it does not affect the
decision regarding whether he is actually paroled once he becomes
eligible. Put differently, the Board only has jurisdiction to parole a
defendant after his total minimum terms have been served, but the Board
retains jurisdiction over the defendant for purposes of determining
factors that affect his parole eligibility. Further, if the Board could not
make any decisions that affected the defendant’s parole-eligibility date,
then it could not make any determinations regarding a defendant’s “good
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The maximum terms of the sentences shall be added to
compute the new maximum term under this subsection,
and discharge shall be issued only after the total of the
maximum sentences has been served... unless the pris-
oner is paroled and discharged upon satisfactory comple-
tion of the parole.
As is clear, a defendant who is subject to consecutive
terms is now liable for a “new maximum term,” which
is simply calculated by adding the old and new maxi-
mums. However, the language used to describe the
amount of time that a defendant must spend on his
minimum terms is notably different from that used to
determine the new maximum term. More specifically,
MCL 791.234(3) provides that the defendant must serve
time” in prison that would make the parolee eligible for early release in
those cases in which a defendant is eligible to receive credit for “good
time.” See, generally, MCL 791.234.
Moreover, MCL 791.234(1) specifically states that
a prisoner sentenced to an indeterminate sentence and confined in
a state correctional facility with a minimum in terms of years...
is subject to the jurisdiction of the parole board when the prisoner
has served a period of time equal to the minimum sentence
imposed by the court for the crime of which he or she was
convicted....[Emphasis added.]
This language is distinct from that used in MCL 791.234(3), stating that
the Board “has jurisdiction over the prisoner for purposes of parole....”
(Emphasis added.) Thus, MCL 791.234(1) allows the Board to obtain
jurisdiction over the defendant for purposes of his original sentence after
he has served his minimum term for that offense. It does not purport to
divest the Board of that jurisdiction once the defendant has been
convicted of a new crime for which MCL 791.234(3) then applies. Once
MCL 791.234(3) applies, the Board is only prohibited from exercising
jurisdiction in order to actually parole the defendant until he has served
the combined minimum terms of the original and new sentences. In sum,
although the Board cannot parole a defendant who is serving consecutive
sentences until he has served the total time of the added minimum terms,
the Board does retain jurisdiction over the defendant for the original
offense, which allows it to make the “remaining portion” determination
required by MCL 768.7a(2).
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the “total” time of the “added minimum terms,” not
that a new minimum term is created. This difference is
important because, when the statute is read in conjunc-
tion with the consecutive sentencing statute, MCL
768.7a(2), the defendant is not required to serve a new
minimum term, but has to serve the total time of the
combined minimum terms. Significantly, the minimum
term for the new offense cannot be served until the new
sentence begins to run,
9
which means jail credit toward
the second sentence’s minimum term will only be
applied after (a) the Board makes its determination
about the remaining portion of the first sentence; and
(b) the defendant serves the remaining portion of his
first sentence.
10
Once the defendant serves this “re-
maining portion,” and then serves an amount of time
equal to the minimum term on the second sentence,
which includes any jail credit, the defendant will
9
It is this consideration that leads me to reject the thoughtful
interpretation of MCL 769.11b, MCL 768.7a(2), and MCL 791.234(3)
offered by the Chief Justice because, under her interpretation, a defen-
dant would be allowed to count his time served on the first offense toward
satisfying the time he must serve on his second offense. In that case, a
defendant would actually be serving his original and new sentences
concurrently rather than consecutively; by doing this, the Chief Justice’s
interpretation renders the requirement of MCL 768.7a(2) that “the term
of imprisonment imposed for the later offense shall begin to run at the
expiration of the remaining portion of the term of imprisonment imposed
for the previous offense” effectively nugatory. Additionally, this interpre-
tation would allow defendants in some instances to become eligible for
parole immediately upon being convicted of a new offense, which leads to
what I view as an illogical and anomalous result.
10
As stated earlier, a defendant who serves the remaining portion of his
original sentence has not been discharged, MCL 791.234(3) and (4), nor
has that sentence been terminated. MCL 791.234(5). Indeed, if the term
“remaining portion” found in MCL 768.7a(2) were interpreted in this
manner, it would render nugatory MCL 791.234(3), which requires the
new and old maximums and minimums to be added together, because
there would be no old maximum and minimum terms to use in this
calculation.
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have served the total time of the added minimums. At
that point, he becomes eligible for parole.
In the hypothetical, the defendant’s new “maximum
term” is 20 years (10 years for the original maximum + 10
years for the new maximum). The total time of his “added
minimum” terms is 10 years (5 years for the original
minimum + 5 years for the new minimum). The defen-
dant has now served a total time of 9 years on his new
maximum (5 years on his original minimum + 1 year on
parole + 2 years of the remaining portion of his original
sentence + 1 year of jail credit toward his new sentence)
and a total of 6 years toward the total of his added
minimum terms (5 years on his first minimum term + 1
year jail credit). Thus, the defendant would be eligible for
parole 4 years from the date that his new sentence begins
to run (10 years total minimums – 6 years served on the
total minimums).
D. APPLICATION
In this case, defendant was on parole for a previous
offense when he committed two new crimes, armed
robbery, MCL 750.529, and possession of a firearm
during the commission of a felony, MCL 750.227b. He
was sentenced to a new term of 12 to 50 years’ impris-
onment for the armed robbery conviction and received a
mandatory determinate 2-year sentence for the convic-
tion of possession of a firearm during the commission of
a felony. Defendant spent 98 days in jail between the
date of his arrest and the date of sentencing and was not
awarded jail credit.
Applying the analysis described earlier, defendant
should have been awarded 98 days of jail credit because
he was “denied or unable to furnish bond for the offense
of which he [was] convicted.” MCL 769.11b (emphasis
added). The Board was then required to make an
2009] P
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affirmative determination of how much time he was
required to serve on the remaining portion of his first
sentence. Instead of doing so, the Board automatically,
and indeed arbitrarily, determined that the remaining
portion was the 98 days that defendant spent incarcer-
ated. Because, in my view, defendant was entitled to jail
credit, I would order the Board to render a determina-
tion of the remaining portion of defendant’s original
sentence. In order to correct the errors involved in this
matter, the time defendant has already served on his
new sentence in excess of the 98 days of jail credit must
be first allocated as time served on the remaining
portion of his original sentence rather than his new
sentence. Any time left over will then count toward
defendant’s new sentence. If there is still time to be
served on the remaining portion of his original sen-
tence, however, the sentence for the new offense should
be suspended until defendant has completed the re-
maining portion of his original sentence.
II. ARBITRARINESS
In contrast to the interpretation of the relevant
statutes set forth in this opinion, the majority concludes
that the jail credit statute, MCL 769.11b, has no appli-
cation to defendants who are incarcerated because of a
parole violation. As a result, under the majority’s inter-
pretation, identically situated parolees are, and will
continue to be, treated differently for entirely seren-
dipitous reasons. Specifically, the majority refuses to
correct the Board’s practice of arbitrarily determining
how much time a parolee who commits a new crime
must serve on the remaining portion of his original
sentence. See part I(C)n6ofthis opinion. Indeed, the
majority only tangentially discusses this problem by
characterizing defendant’s argument as follows:
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Defendant claims that the denial of credit against a
parolee’s new minimum sentence results in unequal treat-
ment [because]... it creates a disparity among parolees
based on the decision to plead guilty and other “arbitrary”
factors that affect the parolee’s sentencing date.
***
...EveniftheLegislature had created such a distinc-
tion, the United States Supreme Court has stated that
“there is no per se rule against encouraging guilty pleas”
and has “squarely held that a State may encourage a guilty
plea by offering substantial benefits in return for the plea.”
Corbitt v New Jersey, 439 US 212, 218-219; 99 S Ct 492; 58
L Ed 2d 466 (1978)....
To the extent the denial of credit against the new
minimum sentence results in some parole violators reach-
ing their parole eligibility dates earlier than others on the
basis of “arbitrary” factors such as docket congestion or a
judge’s illness, this does not amount to a violation of equal
protection. [Ante at 572-573.]
This analysis is misleading, and the majority thereby
mischaracterizes the nature of the arbitrariness prob-
lem. That is, the majority views the issue presented in
this case as whether a defendant who commits a new
crime while on parole can be “encouraged” to enter a
guilty plea instead of prolonging the judicial process by
insisting on his right to a trial. While the majority is
correct that Corbitt does not prohibit the state from
compelling a defendant to chose between accepting a
plea agreement offering a potentially shorter sentence
in exchange for giving up his right to go to trial, the
majority altogether ignores the actual arbitrariness
problem present here, which has almost nothing to do
with whether a defendant accepts or rejects a plea
agreement. To illustrate the true arbitrariness problem,
consider two examples.
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In the first example, consider two identically situated
defendants who both proceeded to trial after being
arrested for a new offense while on parole. Assume that
these defendants both received 5- to 10-year sentences
for their original offenses. After 5 years, both the
defendants are paroled, and both commit the same new
crime exactly 1 year after being conditionally released
from prison and opt to proceed to trial. Defendant A is
convicted of the new crime and exactly 30 days after his
reincarceration is sentenced to an additional 5 to 10
years for the new crime. Defendant B is also convicted
and sentenced to an additional 5 to 10 year term for the
new crime. However, Defendant B is not sentenced until
1 year after he was arrested and incarcerated because:
(1) the prosecutor requested multiple continuances for
reasons unrelated to the defendant’s case; (2) the trial
judge took ill; or (3) a police officer whose testimony was
needed was on vacation, which required the trial court
to grant a continuance. Under the majority’s interpre-
tation of the jail credit statute, Defendant A would be
eligible for parole 11 months earlier than Defendant B
for no reason having anything to do with the relevant
statutes.
In the second example, consider two identically situ-
ated defendants who both accepted plea bargains. As-
sume that defendants A and B committed the same
crime and were both sentenced to 5- to 10-year terms of
imprisonment for their original offenses. They are both
paroled after serving 5 years, and both commit the same
new crime exactly 1 year after being paroled. The
defendants are then offered the same plea bargain,
which both agree to take. Defendant A is able to plead
guilty in 1 month and be sentenced to a new 5- to
10-year term, while Defendant B, for one of the reasons
set forth in the previous paragraph, is not sentenced for
626 484 M
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6 months. Defendant A will be eligible for parole 5
months earlier than Defendant B on the basis, again, of
entirely arbitrary factors.
As can be seen by comparing two defendants who
accept plea agreements and two who do not, the majori-
ty’s claim that there is “no per se rule against encour-
aging guilty pleas” is an inapt characterization of the
arbitrariness problem at issue here, which is that
identically situated defendants are treated in an arbi-
trary fashion, regardless of whether they proceed to
trial or not. More specifically, the Board’s current
practice of failing to undertake its statutory responsi-
bilities, passively waiting for a defendant to be con-
victed of a new crime, and then mechanically conclud-
ing that the amount of time a defendant has spent
awaiting trial on his new offense automatically consti-
tutes the remaining portion of the original sentence
that the defendant must serve, treats identically situ-
ated defendants in a potentially widely disparate fash-
ion, regardless of whether they accept a plea deal or not.
This treatment is based on wholly arbitrary factors that
have nothing to do with a defendant’s culpability or
with the severity of his original or new crime. Rather,
the remaining portion of the sentence that a defendant
must spend incarcerated before trial, which prolongs
his parole-eligibility date after the new sentence is
imposed, becomes a function solely of “the fortuity of
how long it takes the criminal justice system to proceed
to a defendant’s final sentencing....”People v Wright,
474 Mich 1138, 1140 (2006) (M
ARKMAN
, J., dissenting).
Significantly, the majority devotes little analysis or
discussion to the serendipity of the process by which the
state deprives an individual of his liberty and refuses
to compel the Board to satisfy its obligations under
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MCL 768.7a(2) and Wayne Co Prosecutor to render an
affirmative determination of what “remaining portion”
must be served on an original sentence before the
beginning of a new sentence. In summary fashion, the
majority concludes that “it is entirely rational for the
Legislature to treat parolees and nonparolees differ-
ently....”Ante at 572. However, given that it is not the
disparate treatment of parolees as compared to non-
parolees that gives rise to the underlying arbitrariness
problem, I question whether the majority has ad-
equately addressed the relevant issues in this case.
11
III. RESPONSE TO THE MAJORITY
In response to this opinion, the majority makes three
specific arguments that warrant further discussion.
First, it argues that the Board has no authority to alter
a prisoner’s parole eligibility date by stating that “[t]he
flaw in [the instant opinion’s] theory is that
11
The majority correctly notes that the theory set forth in this case will
not resolve all arbitrariness problems. It asserts this based upon a
hypothetical scenario wherein identically situated parolees violate their
parole and are both incarcerated awaiting trial without being allowed to
post bond. Ante at 574 n 23. Both parolees are acquitted, and the Board
determines that neither is required to serve a remaining portion of their
original sentences. Both parolees are then placed back on parole. In the
majority’s hypothetical, Parolee A is able to proceed to trial in one month,
while Parolee B, based on arbitrary factors, is unable to proceed to trial
until one year after being arrested for the alleged parole violation. The
result is that Parolee B spends 11 more months in jail than Parolee A.
However, this situation is no different than when two non-parolee
defendants are charged with crimes, denied bond, and ultimately acquit-
ted, with one defendant spending one month in jail awaiting trial and the
other defendant spending one year in jail awaiting trial. Although these
situations undeniably contain an element of arbitrariness, there is no
obvious or practical remedy. The distinction between these situations and
the arbitrary treatment directed toward parolees in the instant case is
that parolees do have a remedy, which is to be awarded jail credit toward
their new offenses when they are ultimately convicted.
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parole eligibility is a function of statute: MCL 791.234.
Unless a new sentence is imposed consecutive to the
original sentence, in which case the offender’s new
parole eligibility date is then governed by MCL
791.234(3), the offender’s parole eligibility date does
not change.” Ante at 583 (emphasis in original). Fur-
ther, the majority states that the Board’s only “discre-
tionary authority lies in determinations of parole wor-
thiness.” Ante at 584 n 29 (emphasis in original). I
respectfully disagree.
In fact, the Board does possess the authority to
determine a prisoner’s parole-eligibility date. While the
majority is correct that MCL 791.234 establishes the
initial parole eligibility date for a prisoner, there are
various instances in which that date, as a practical
matter, must be recalculated. For example, when a
parolee violates his parole and is reincarcerated for that
violation, the Board must determine whether the pris-
oner will be given another opportunity for parole and, if
such an opportunity will be afforded, on what date the
Board will consider whether the prisoner is in fact
deserving of parole.
12
Once that new date for parole
12
If the majority is correct that the Board can never set a parole-
eligibility date that is different from the date established by MCL
791.234, then once a parolee’s parole has been revoked for a parole
violation, he could never be re-paroled. That is, if a defendant who was
serving a 5- to 30-year sentence was paroled on year 5, violated parole on
year 6, and had his parole revoked, the Board would not then be able to
re-parole him because it would be powerless to set a new parole-eligibility
date. However, despite the majority’s statement to the contrary, it
acknowledges implicitly that the Board has such authority when it states
that “[t]he Parole Board may account for previous parole violations in
making” decisions as to whether a prisoner’s current sentence should be
terminated or a parolee’s sentence discharged. Ante at 586 (emphasis
added). A parolee could not have previous parole “violations” unless the
Board had determined that he had committed a violation and subse-
quently set a new parole-eligibility date on which the prisoner was again
paroled and positioned to violate parole a second time. The majority
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consideration has been reached, the Board must then
look to the factors in MCL 791.233e and the DOC
guidelines, see note 4, supra, to determine whether the
prisoner is “parole worthy.” That is, when the Board
sets a new possible parole date, it is setting a new
“parole eligibility” date. It is only when the prisoner
reaches that new “parole eligibility” date that his
“parole worthiness” is actually considered.
13
Second, the majority argues that the Board has no
duty to make an affirmative determination as to how
long a defendant must serve on his original sentence by
inquiring as to the statutory authority that requires the
Board to make the “remaining portion” determination.
The statutory authority consists in sum of: (a) MCL
768.7a(2), which states that when a parolee violates his
parole and is sentenced to a new term of imprisonment
that is to run consecutive to his original offense “the
term of imprisonment imposed for the later offense
shall begin to run at the expiration of the remaining
portion of the term of imprisonment for the previous
offense”; (b) MCL 791.234(1), which vests the Board
with jurisdiction over the prisoner when he “has
thereby appears to concede that the Board possesses the authority to set
a new parole-eligibility date even after a parolee has violated parole.
13
Additionally, my disagreement with the majority’s distinction be-
tween parole eligibility and parole worthiness is that, for purposes of the
present analysis, it is entirely academic. Even if the majority is correct
that the Board’s authority to revoke parole and establish a subsequent
date at which that defendant will be re-evaluated and that this date
constitutes the new parole-worthiness date, the Board’s responsibility to
make a determination as to the remaining portion of a defendant’s
original sentence pursuant to MCL 768.7a(2) remains the same. That is,
once a parolee violates parole, the Board possesses the authority, under
the majority’s view, to determine at what future date it will reconsider his
parole worthiness. Regardless of whether that future date is termed the
“parole-eligibility date” or the “parole-worthiness date,” the time period
between the parole violation and that future date is the remaining
portion described in MCL 768.7a(2).
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served a period of time equal to the minimum sentence
imposed by the court” for the original offense; and (c)
MCL 791.241, which states that, after determining
whether a parole violation occurred, the Board “shall
enter an order rescinding such parole, or reinstating the
original order of parole or enter such other order as it
may see fit.” Thus, the Board necessarily has jurisdic-
tion over a prisoner who is paroled, and, once it is
determined that the parolee has violated his parole, the
Board “shall” enter an order reflecting what action it is
taking, including whether the parole violator must
serve a “remaining portion” on his original offense.
14
Despite these statutory provisions, the majority
claims that “[n]one of these statutorily defined func-
tions of the Parole Board includes a requirement that
the Parole Board make an ‘affirmative determination of
how long the defendant must serve on [his first] sen-
tence.’ ” Ante at 585 (emphasis in original). While the
majority is correct that no individual statute alone
requires the Board to make an affirmative determina-
tion concerning the “remaining portion” that a parole
violator must serve, this Court does not interpret
14
Because the Board “shall” enter an order taking some action after
determining whether a parole violation has occurred, the majority is
incorrect in asserting that there is “no statutory requirement that the
Parole Board make an affirmative ‘remaining portion’ determination.”
Ante at 587. Additionally, Wayne Co Prosecutor, 451 Mich at 584, has
already determined that the Board must make a remaining portion
determination, which consists of “whatever portion, between the mini-
mum and the maximum of the earlier sentence that the Parole Board
may, because the parolee violated the terms of his parole, require him to
serve.” Thus, if the Board intends to impose any remaining portion, it
must affirmatively do so. Otherwise, there is no remaining portion for
which the defendant can be required to serve. Thus, even if the majority
is correct that the Board has no duty to make an affirmative determina-
tion as to the remaining portion, the result of not making that determi-
nation is that there is no remaining portion that the defendant must
serve before his new sentence begins to run.
2009] P
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in isolation clauses or paragraphs or subsections or
even statutes, which together comprise part of a larger
statutory scheme. Rather, each of the three principal
statutes discussed herein must be read in context with
the other statutes in order to ascertain the meaning of
the “remaining portion” used in MCL 768.7a(2), and to
determine which entity must make the “remaining
portion” determination. When the pertinent laws are
interpreted together, as they must be, it becomes as
reasonably clear as it can be in this very difficult and
convoluted area that the Board is obligated to make
decisions concerning a parolee’s “remaining portion,”
so that the parolee does not begin to receive credit
toward his new sentence until he has served an appro-
priate amount of additional time on his original sen-
tence as a result of a parole violation. The majority’s
resistance to reading the relevant statutes in pari
materia leads to what I view as an unreasonable inter-
pretation of MCL 769.11b in which: (a) equally situated
defendants may be treated in a widely disparate man-
ner based upon entirely arbitrary factors; and (b) pa-
rolees who commit parole violations may escape the full
consequences of their actions if the Board is precluded
from imposing a proportional “remaining portion.” The
Legislature has not mandated these results, and I
therefore disagree with the majority’s unharmonious
reading of the law.
IV. CONCLUSION
MCL 769.11b requires that “any person” “shall” be
awarded jail credit “because of being denied or unable
to furnish bond for the offense of which he is con-
victed....”Contrary to the majority’s interpretation,
there is no limitation or qualification present in this
statute requiring that a defendant be denied or unable
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to furnish bond for any reason related to the new
offense itself. Rather, the defendant need only be denied
or unable to furnish bond for the new offense. Defen-
dant here was unquestionably “unable” to furnish bond
for the offense of which he was convicted and, thus, is
entitled to 98 days of jail credit toward the sentence for
his new offense for the amount of time he spent
incarcerated awaiting sentencing. The Parole Board, in
my view, must also undertake an affirmative determi-
nation of the “remaining portion” of defendant’s origi-
nal sentence that he must serve before beginning his
new sentence. MCL 768.7a(2). The time he has served
on his new sentence in excess of the 98 days of jail credit
must first be applied to that remaining portion instead
of defendant’s new sentence, with any time left over
then being counted toward his new sentence. If defen-
dant has not yet served an amount of time in excess of
the 98 days of jail credit sufficient to satisfy the remain-
ing portion of his original sentence, then the new
sentence must be suspended until defendant has com-
pleted that length of time. Because the majority reaches
a different result using what I view as an erroneous and
incomplete reading of the statutes, and because the
majority would perpetuate the present arbitrariness of
the parole system by failing to require an affirmative
determination from the Board, I respectfully dissent.
2009] P
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In re SERVAAS
Docket No. 137633. Argued March 4, 2009 (Calendar No. 10). Decided
July 31, 2009.
The Judicial Tenure Commission (JTC) filed a formal complaint
against Judge Steven R. Servaas of the 63rd District Court,
alleging that he had vacated his judicial office in violation of Const
1963, art 6, § 20, by changing his primary residence to a different
division of his judicial district and that he had failed to comply
with statutory notification requirements when he did not change
his driver’s license information or voter registration to reflect the
move. The complaint also alleged that the respondent had engaged
in sexually inappropriate conduct toward female court employees,
including instances in which the respondent had attached a
drawing of a penis and of a woman’s breasts to court files. The
Supreme Court appointed retired Circuit Judge Casper O. Grath-
wohl to act as master. After a formal hearing, Judge Grathwohl
dismissed the count of failure to comply with statutory notification
requirements, but concluded that the respondent had vacated his
judicial office in August 2005 in violation of Const 1963, art 6, § 20
and that respondent’s sexual communications constituted judicial
misconduct and compromised the integrity of the court. The
respondent filed objections to the master’s report in the JTC. The
JTC adopted the master’s findings of fact and conclusions of law,
except that it found that the respondent had actually changed
residences as early as 2000. This finding was based on documen-
tary evidence that was offered solely for impeachment purposes,
but was not substantively admitted. The JTC recommended that
the respondent be removed from office and assessed fees and costs
for having engaged in deceit and intentional misrepresentation.
In a lead opinion by Justice W
EAVER
, joined by Justices
C
AVANAGH
and H
ATHAWAY
, and an opinion by Chief Justice K
ELLY
concurring in all but part II(A) and the discussions of quo
warranto in the introduction and conclusion of Justice W
EAVER
’s
opinion, the Supreme Court held:
The respondent’s conduct concerning the sexual communica-
tions was unquestionably inappropriate; however, it did not rise to
the level of blatant judicial misconduct requiring the severest
possible sanction of removal from office, and it may be viewed as
634 484 M
ICH
634 [July
an aberration given his long record of unblemished service. Ac-
cordingly, a sanction of public censure is imposed.
1. The proper forum for reviewing whether the actions of the
JTC’s executive director violated any ethical rules is the Attorney
Grievance Commission.
2. The respondent’s sexual conduct was crass and inappropri-
ate; however, it did not rise to the level of judicial misconduct
beyond that which requires public censure.
3. A review of the record indicated that the respondent seemed
confused regarding specific telephone numbers, dates, times, and
other events from nearly 10 years before he testified; however, it did
not support a conclusion that the respondent intentionally lied under
oath.
Public censure imposed.
Justice W
EAVER
stated further in the lead opinion that the
record did not support a conclusion that the respondent lied under
oath with respect to his residence. The only appropriate forum to
determine whether the respondent vacated his judicial office was a
quo warranto action filed by the Attorney General in the Court of
Appeals. The JTC does not have the authority to bypass submis-
sion of the quo warranto action or the power to determine whether
a judge has vacated his or her office in violation of Const 1963, art
6, § 20.
Justice W
EAVER
, joined by Justice H
ATHAWAY
, concurring, wrote
separately to request that the Supreme Court open an adminis-
trative file to investigate the events and actions of the JTC and
others responsible that led to the JTC’s recommendation of this
case to this Court.
Chief Justice K
ELLY
, concurring in part and dissenting in part,
concurred with Justice W
EAVER
’s lead opinion with the exceptions
of part II(A) and those portions of the introduction and conclusion
discussing quo warranto, and also concurred with part II of Justice
M
ARKMAN
’
S
opinion, which stated that the existence of an action for
quo warranto did not prevent the JTC from assessing the respon-
dent’s misconduct, regardless of whether that conduct involved
the improper exercise of a title to office. She would find from the
respondent’s admission that he moved that the respondent did
vacate his judicial office and agreed that public censure was the
appropriate sanction for the respondent’s vacating his office and
inappropriate sexual conduct.
Justice M
ARKMAN
, joined by Justice C
ORRIGAN
, dissenting, agreed
with the unanimous recommendation of the JTC that the respon-
dent’s misconduct in this case warranted his removal from office.
2009] In re S
ERVAAS
635
In moving outside the district from which he was elected, respon-
dent violated the law and the Michigan Constitution, and he
breached the fundamental bond with the people of his district
established by our system of republican self-government. He then
engaged in a pattern and practice of actions to conceal this
misconduct, including providing false testimony under oath.
Justice C
ORRIGAN
, dissenting, joined Justice M
ARKMAN
’s dissent-
ing opinion in all respects and parts A and B of Justice Y
OUNG
’s
dissenting opinion. She wrote separately to state that although the
JTC executive director employed unnecessarily harsh tactics when
confronting the respondent, the respondent has not established
special facts and circumstances that created an intolerably high
risk of unfairness, which is required for finding a due process
violation. The procedures employed in this case were sufficient to
ensure due process: a master was appointed to find the facts that
formed the basis for the JTC’s decision, the JTC’s decision was
only a recommendation to the Supreme Court, and the Supreme
Court bears the ultimate responsibility on its de novo review to
decide what, if any, discipline is warranted.
Justice Y
OUNG
, dissenting, joined parts V(A) and (C) of Justice
M
ARKMAN
’s opinion and would adopt the recommendation of the JTC
and remove the respondent from office. Justice Y
OUNG
declined to
address whether the JTC has the authority to determine whether the
respondent vacated his office during the course of judicial disciplinary
proceedings because the respondent admitted that he had done so
from August 2005 to February 2008. Justice Y
OUNG
concluded that
the respondent engaged in misconduct that provided a sufficient
basis for his removal when he lied under oath during the JTC
proceedings and in an application for a license to carry a concealed
weapon. Moreover, the respondent failed to comply with statutory
requirements for address changes to his driver’s license and voter
registration and fraudulently continued to vote in his election divi-
sion. Additionally, the respondent gave court personnel an after-
hours telephone number to his property located in his election
division, from which calls were forwarded to his property outside his
election division. All of these actions were a calculated and deliberate
effort to make it appear as though the respondent was still living in
the first election division, and are completely inconsistent with his
claim that he reasonably believed that he could live anywhere within
the 63rd District. Justice Y
OUNG
would conclude that, once it is
determined that a respondent lied under oath, the only appropriate
sanction is removal from office. The sanctity of the oath represents a
longstanding tenet of our judicial system. When a judge lies under
oath, he or she lacks the necessary character to be entrusted with
judicial privilege and becomes unfit to sit in judgment of others.
636 484 M
ICH
634 [July
Paul J. Fischer and Thomas L. Prowse for the peti-
tioner.
Miller Johnson (by John R. Muth, James S. Brady,
and Monica C. Inhulsen) for the respondent.
W
EAVER
, J. The Judicial Tenure Commission (JTC)
recommended that this Court remove 63rd District
Court Judge Steven Servaas (respondent) from office
for vacating his judicial office, as well as for judicial
misconduct involving a comment and two drawings of a
sexual nature. Because we conclude that the only ap-
propriate forum to determine whether respondent va-
cated his judicial office is a quo warranto action filed by
the Attorney General in the Court of Appeals, we reject
the JTC’s recommendation as to the vacation of office
claim. Respondent’s conduct concerning the comment
and two drawings was unquestionably inappropriate;
however, a majority of this Court concludes that respon-
dent’s conduct did not rise to the level of blatant judicial
misconduct requiring the most severe sanction: re-
moval from office. In this respect, we view respondent’s
actions as an aberration given his 35 years of appar-
ently unblemished service as judge of the 63rd District
Court. Accordingly we impose public censure only.
I
Respondent is a judge of the 63rd District Court,
1st Division, in Rockford, Michigan. On February
14, 2008, the JTC filed Formal Complaint No.
84,
1
alleging that respondent had committed judicial
misconduct in violation of Const 1963, art 6,
1
On both January 17, 2008, and February 14, 2008, the JTC filed
petitions for interim suspension without pay pending final resolution of
this matter. Both petitions were denied by this Court.
2009] In re S
ERVAAS
637
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PINION BY
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EAVER
,J.
§ 20;
2
MCR 9.104
3
and MCR 9.205;
4
and the
Michigan Code of Judicial Conduct (MCJC), Canons 1,
5
2
See note 8 of this opinion.
3
MCR 9.104(A) states in part:
The following acts or omissions by an attorney, individually or
in concert with another person, are misconduct and grounds for
discipline, whether or not occurring in the course of an attorney-
client relationship:
(1) conduct prejudicial to the proper administration of justice;
(2) conduct that exposes the legal profession or the courts to
obloquy, contempt, censure, or reproach;
(3) conduct that is contrary to justice, ethics, honesty, or good
morals;
(4) conduct that violates the standards or rules of professional
responsibility adopted by the Supreme Court[.]
4
MCR 9.205 states in part:
(A) Responsibility of Judge. A judge is personally responsible
for the judge’s own behavior and for the proper conduct and
administration of the court in which the judge presides.
(B) Grounds for Action. A judge is subject to censure, suspen-
sion with or without pay, retirement, or removal for...miscon-
duct in office...or conduct that is clearly prejudicial to the
administration of justice....
(1) Misconduct in office includes, but is not limited to:
***
(c) persistent failure to treat persons fairly and courteously;
(d) treatment of a person unfairly or discourteously because of
the person’s race, gender, or other protected personal characteris-
tic[.]
5
Canon 1 of the Code of Judicial Conduct states in part:
An independent and honorable judiciary is indispensable to
justice in our society. A judge should participate in establishing,
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2(A) through (C),
6
and 3A(3).
7
Specifically, the first count of the complaint alleged
that respondent vacated his judicial office in violation of
Const 1963, art 6, § 20
8
when he changed his primary
residence from Cannon Township, which is located in
the 1st Division of the 63rd District Court, to Ada
Township, which is located in the 2nd Division of the
same judicial district.
9
The second count of the com-
maintaining, and enforcing, and should personally observe, high
standards of conduct so that the integrity and independence of the
judiciary may be preserved. A judge should always be aware that
the judicial system is for the benefit of the litigant and the public,
not the judiciary.
6
Canon 2 of the Code of Judicial Conduct states in part:
A. Public confidence in the judiciary is eroded by irresponsible
or improper conduct by judges. A judge must avoid all impropriety
and appearance of impropriety....
B. A judge should respect and observe the law. At all times, the
conduct and manner of a judge should promote public confidence
in the integrity and impartiality of the judiciary. Without regard to
a person’s race, gender, or other protected personal characteristic,
a judge should treat every person fairly, with courtesy and respect.
C. A judge should not allow family, social, or other relationships
to influence judicial conduct or judgment. A judge should not use
the prestige of office to advance personal business interests or
those of others.
7
Canon 3(A)(3) Code of Judicial Conduct provides:
A judge should be patient, dignified, and courteous to litigants,
jurors, witnesses, lawyers, and others with whom the judge deals
in an official capacity, and should require similar conduct of
lawyers, and of staff, court officials, and others subject to the
judge’s direction and control.
8
Const 1963, art 6, § 20, provides that “[w]henever a justice or judge
removes his domicile beyond the limits of the territory from which he was
elected or appointed, he shall have vacated his office.”
9
Justice M
ARKMAN
’s argument conflates the complaint of vacation of
office with the other complaints concerning inappropriate sexual con-
duct. In doing so, he asserts that it is perfectly appropriate for the JTC to
bring an action asserting vacation of office, along with any other
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plaint alleged that respondent failed to comply with
statutory notification requirements when he failed to
change his driver’s license information and voter regis-
tration to reflect his move to Ada Township.
The third count of the complaint alleged that respon-
dent engaged in sexually inappropriate conduct di-
rected toward female court employees, citing three
specific examples. In the first instance, it was alleged
that respondent drew female breasts on a note that was
attached to a court file. The drawing was made after a
female clerk commented on the revealing dress of a
woman who appeared in court. The second event con-
cerned the drawing of a penis that appeared on a note
attached to a court file. The third instance occurred
during a retirement party for an employee at the 2nd
Division courthouse. While at the party, respondent
commented on a university sweatshirt worn by a female
assertions concerning disciplinary conduct. A study of Const 1963, art 6,
§ 30(2), and MCR 9.205(B) contradicts this argument. Specifically, the
JTC’s authority is limited to bringing actions against a judge
for conviction of a felony, physical or mental disability which
prevents the performance of judicial duties, misconduct in office,
persistent failure to perform his duties, habitual intemperance or
conduct that is clearly prejudicial to the administration of justice.
[Const 1963, art 6, § 30(2).]
The JTC has no authority to complain that a judge has vacated his office.
An allegation of vacation of office is distinct from the JTC’s authority to
recommend to this Court that a judge be censured by removal from office.
Further, Justice M
ARKMAN
asserts, without citing any authority, that it is
perfectly appropriate for a quo warranto complaint to be combined with
complaints for judicial misconduct. To the contrary, pursuant to MCR
3.306(A)(1), an action for quo warranto “must be brought in the Court of
Appeals.” MCR 3.306 says nothing about whether the JTC has any legal
authority to bring a complaint of quo warranto and a complaint of judicial
misconduct in a JTC proceeding. An allegation of quo warranto is not
magically converted into another kind of judicial misconduct simply by
linking the allegation to actual judicial misconduct complaints.
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clerk employed in the 2nd Division. Respondent stated
that the woman had “an awfully small chest” for the
college indicated on the sweatshirt and “should have
gone to a smaller school like Alma,” which would have
fit her “small chest better.”
On March 5, 2008, this Court appointed the Honor-
able Casper O. Grathwohl as master to hear the case.
The master’s report, issued on May 12, 2008, concluded
that respondent vacated his judicial office in violation of
Const 1963, art 6, § 20 when he changed his principal
residence from the 1st Division to the 2nd Division of
the 63rd District Court in August 2005. The master
recommended that the second count of the complaint be
dismissed.
10
The master further concluded that respon-
dent’s “sexual doodles and sexual communication” con-
stituted judicial misconduct and compromised the in-
tegrity of the court.
Respondent filed objections to the master’s report.
The JTC issued its decision and recommendation for an
order of discipline on October 17, 2008. The JTC
adopted the master’s findings of fact and conclusions of
law, with the exception of finding that respondent had
moved to the 2nd Division “as early” as 2000. In making
this factual finding, the JTC relied on documentary
evidence that was offered solely for impeachment pur-
poses in the proceedings before the master, but was not
substantively admitted.
11
On the basis of the findings of
10
The examiner did not file any objections to the master’s report, as
required by MCR 9.215. Despite the apparent forfeiture of the issue,
however, the JTC “agree[d] with and adopt[ed]” the master’s conclusions
regarding count II. In light of the forfeiture of the issue, it will not be
further discussed in this opinion.
11
The examiner indicated that he did “not intend to offer” the
documents into evidence because he had not provided respondent with
copies of the exhibits as required by both the pretrial order and MCR
9.208(C)(1)(a)(i).
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fact and conclusions of law, the JTC recommended that
respondent be removed from office. The JTC further
recommended that respondent be assessed fees and
costs in the amount of $8,364.38 because respondent
“engaged in deceit and intentional misrepresentation.”
II
This Court reviews the recommendations and find-
ings of the JTC de novo.
12
The standard of proof in
judicial disciplinary proceedings is a preponderance of
the evidence.
13
A. VACATION OF OFFICE
Const 1963, art 6, § 20, provides that “[w]henever a
justice or judge removes his domicile beyond the limits
of the territory from which he was elected or appointed,
he shall have vacated his office.” The parties agree that
the term “domicile” refers to respondent’s primary
residence. Furthermore, respondent admits that he
changed his primary residence to the second election
division from 2005 to 2008.
14
The dispute centers on the
meaning of the word “territory.” Respondent argues
that “territory” refers to the entire 63rd Judicial Dis-
trict, while the JTC argues that the term is limited to
the election division within the district. Thus, when
respondent moved his primary residence from the first
election division to the second election division of the
63rd District Court, the JTC maintains that respondent
12
MCR 9.225; In re Somers, 384 Mich 320, 323; 182 NW2d 341 (1971).
13
In re Loyd, 424 Mich 514; 384 NW2d 9 (1986).
14
Although the JTC found that respondent moved from the first
election division to the second election division in 2000 rather than 2005,
in light of respondent’s admissions, that finding adds no weight to the
allegations that respondent vacated his office.
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vacated his office, possessed no authority to continue to
serve as a judge, and functioned as a “nonjudge mas-
querading as a judge.”
However, this Court need not address which argu-
ment is correct, nor reach a conclusion regarding
whether respondent vacated his office because our
statutes, caselaw, and court rules provide that a quo
warranto action brought by the Attorney General in the
Court of Appeals is the only appropriate and exclusive
proceeding to make the preliminary determination re-
garding whether respondent vacated or unlawfully held
his judicial office.
15
MCL 600.4501 provides that the Attorney General
shall bring an action for quo warranto “when the facts
clearly warrant the bringing of the action.”
16
MCR
3.306(A)(1) provides that the quo warranto action must
15
Justice M
ARKMAN
, post at 664, asserts that another reason that the
JTC, and not the Court of Appeals, can bring a vacation of office
complaint is that the quo warranto statute, MCL 600.4505, implies that
actions for quo warranto may only be brought for “claims that a public
official is currently exercising an invalid title to office.” At the time the
JTC brought its complaint for vacation of office against the respondent,
respondent was currently in office. There is no support for this argument
in MCL 600.4505, and In re Kapcia, 389 Mich 306; 205 NW2d 436 (1973),
does not support this assertion. Rather, the Court in Kapcia declared that
its opinion did not consider whether a quo warranto action by the Court
of Appeals was required for a judge who had lost his license to thereafter
determine whether the judge had vacated his office. Wisely, that Court
recognized the Court of Appeals initial exclusive jurisdiction with respect
to quo warranto proceedings. Justice M
ARKMAN
, post at 670 n 16, asserts
that Kapcia establishes that the JTC cannot use any other entity’s
findings, including those of the Court of Appeals. Again, with respect to
a quo warranto proceeding, the JTC has no authority to make a finding
that a judge improperly vacated his office. The JTC only has the
authority to recommend what disciplinary measure should be exercised
by this Court based on the exclusive right of the Court of Appeals to make
the determination in a quo warranto proceeding.
16
If the Attorney General refuses to act, a private party may bring the
action upon leave of the court. MCL 600.4501.
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be brought in the Court of Appeals when a person
“usurps, intrudes into, or unlawfully holds or exercises
a state office” or if a state officer “does or suffers an act
that by law works a forfeiture of the office.” If a quo
warranto action claims usurpation of office, the judg-
ment “may determine the right of the defendant to hold
the office.”
17
Moreover, if a defendant in a quo warranto
proceeding is found to unlawfully hold or exercise the
office at issue, the defendant may be assessed fines
18
and damages
19
in addition to being ousted from office.
Significantly, our caselaw has held for more than a
century that “[t]he only way to try titles to office finally
and conclusively is by quo warranto.”
20
Notwithstanding, the JTC asks this Court to make
the prefatory determination that respondent vacated
his office under Const 1963, art 6, § 20, and that he
consequently “was no longer a judge” and acted “with-
out judicial authority,” as a basis of removing respon-
dent from office for judicial misconduct. However, this
determination is precisely the issue to be resolved in a
quo warranto action. While this Court could certainly
review on appeal the decision made by the Court of
Appeals in a quo warranto action,
21
and could determine
17
MCL 600.4505(1).
18
MCL 600.4515.
19
MCL 600.4511.
20
Frey v Michie, 68 Mich 323, 327; 36 NW 184 (1888) (emphasis added).
See also Metevier v Therrien, 80 Mich 187, 45 NW 78 (1890); People v
Kongeal, 212 Mich 307, 317, 180 NW 636 (1920) (cannot attack “the legal
existence of such a court or its de facto officers otherwise than in a direct
proceeding by quo warranto”); Gildemeister v Lindsay, 212 Mich 299, 180
NW 633 (1920); Sempliner v FitzGerald, 300 Mich 537, 2 NW2d 494
(1942); Cook v Burhans, 304 Mich 108, 7 NW2d 370 (1942); People v
Russell, 347 Mich 193, 79 NW2d 603 (1956); Layle v Adjutant General,
384 Mich 638, 641; 186 NW2d 559 (1971) (“[Q]uo warranto is the proper
and exclusive remedy to try title to office....”).
21
MCR 7.301(2).
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whether the conduct surrounding respondent’s forfei-
ture of office rose to the level of judicial misconduct
warranting judicial discipline,
22
an original proceeding
in the Supreme Court
23
is not the appropriate place to
determine in the first instance whether respondent
vacated his office. Rather, the law requires that this
question be initiated by the Attorney General and
resolved as an initial matter by the Court of Appeals.
24
Consequently, all evidence and testimony obtained
during the proceeding by the JTC regarding whether
respondent had vacated his office was obtained through
an unconstitutional process because the JTC has no
authority to proceed on the quo warranto issue or to
determine whether respondent vacated his office. That
determination can only be made by the Court of Appeals
in a quo warranto proceeding, which could then be
appealed to this Court. If a quo warranto action has
been successfully brought in the Court of Appeals, and
that decision is affirmed by this Court, only then may
the JTC act on the appellate court decision and deter-
mine whether there has been any judicial misconduct
associated with the determination of the Court of
Appeals that a judge has vacated his or her office.
Moreover, had the Michigan Supreme Court decided
in a quo warranto appeal that respondent had vacated
22
Const 1963, art 6, § 30; MCR 9.225. Because no quo warranto action
was filed and no determination was made regarding whether respondent
vacated his office, we need not determine whether the act of vacating
judicial office constitutes sanctionable judicial misconduct.
23
MCR 7.304.
24
By analogy, Const 1963, art 6, § 30(2), provides that this Court may
discipline, retire, or remove a judge for conviction of a felony. It could
hardly be argued, however, that this Court rather than the circuit court
should adjudicate and convict the judge of the felony simply because the
unresolved predicate issue arose during the course of a judicial disciplin-
ary proceeding. In re Laster, 404 Mich 449, 274 NW2d 742 (1979), cited
by the JTC, is simply not responsive to this issue.
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his office, the Supreme Court would have had the power
to remove respondent from office, and, had that hap-
pened, any JTC proceeding regarding judicial miscon-
duct involving the vacation of office would have been
moot because the Supreme Court had already exercised
the most severe punishment. Simply put, the JTC had
the cart before the horse.
Just as the JTC has neither the authority nor the
power to decide whether a judge vacated his or her
office, this Supreme Court does not have any constitu-
tional authority to grant that authority and power to
the JTC. The JTC only has the authority to let the quo
warranto process lawfully proceed to a legal determina-
tion of whether or not a judge has vacated his or her
office.
With regard to our conclusion in this regard, we
reject Justice M
ARKMAN
’s attempt to characterize the
JTC as having made a “determination” to which this
Court must defer. The JTC only has the authority to
“recommend” disciplinary action. Justice M
ARKMAN
’s
attempt to couch our “rejection” as unbelievable is
improper. Indeed, Justice M
ARKMAN
asserts that a ma-
jority of this Court errs in its review of the JTC decision
by “afford[ing] no deference whatsoever to the commis-
sion’s factual findings.” Post at 655 (emphasis added).
To be precise, while this Court has a duty to review a
recommendation, as to the deference afforded the JTC
after this Court reads the recommendation, there is no
duty to accept, or to defer, to any part of the JTC’s
recommendation. This Court has no duty to accept,
even in part, any JTC “decision” because the JTC does
not have the power to decide how and whether to
discipline a judge; the JTC can only make recommen-
dations to this Court and, in this regard, our review of
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JTC recommendations is de novo.
25
In re Somers, 384
Mich 320, 323; 182 NW2d 341 (1971).
As established in Const 1963, art 6, § 30(2):
On recommendation of the judicial tenure commission,
the supreme court may censure, suspend with or without
salary, retire or remove a judge for conviction of a felony,
physical or mental disability which prevents the perfor-
mance of judicial duties, misconduct in office, persistent
25
Contrary to Justice M
ARKMAN
’s assertion, our decision today does not
affect the standard by which this Court reviews JTC recommendations.
As Justice M
ARKMAN
accepts, we review the JTC’s recommendations de
novo. In re Somers, 384 Mich 320, 323; 182 NW2d 341 (1971). And we are
aware of no mandate that this Court give deference to the JTC’s
“decisions.” The Michigan Constitution does not require that we give any
deference to the JTC’s “decisions.” Moreover, we have held that any
deference given to the JTC’s “recommendations” is contingent upon us
finding that the JTC’s analysis was “reasonably done.” In re Chrza-
nowski, 465 Mich 468, 488; 636 NW2d 758 (2001). In this case, for the
reasons noted in this opinion, we conclude that the JTC’s analysis fell
below the “reasonably done” threshold. We have also limited any defer-
ence regarding factual findings to the master’s credibility determina-
tions. Loyd, supra at 535-536. That deference was further limited to
when the credibility determination was supported by the whole record.
Id. We have never articulated a deference requirement toward the JTC’s
credibility determinations. This is an important distinction in this case
because the JTC did not accept the master’s credibility determinations;
instead, it went beyond the master’s conclusions and, as Justice M
ARKMAN
rightly states, “decided” that respondent had moved out of his division at
a date earlier than when the master had determined. Notably, it was this
“decision” on which the JTC hinged its removal recommendation. Thus,
any deference to a credibility determination would apply to the master’s
findings, assuming that they were supported by the entire record; it
would not apply to the JTC’s contrary “decision.” This is yet another
reason for us to conclude that the JTC’s “recommendation,” much less its
“decision,” granted no deference in this case. It is unclear why Justice
M
ARKMAN
believes we are required to give the JTC’s “decisions” defer-
ence. Further, assuming Justice M
ARKMAN
is correct that this Court is
bound to give some modicum of deference to the JTC’s recommendations,
that rule does not apply here because the JTC’s analysis was not
reasonably done, and its credibility conclusions are contrary to those of
the master.
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failure to perform his duties, habitual intemperance or
conduct that is clearly prejudicial to the administration of
justice.
For comparison purposes, consider this scenario: if
the JTC believes a judge has committed armed rob-
bery, it has no authority to proceed to determine
whether or not the judge did commit armed robbery.
Only the criminal judicial system guided by statutes
and court rules has the authority to make that
determination. If the court process legally determines
a judge is guilty of armed robbery, only then can the
JTC recognize the legally determined fact that the
judge committed the crime and only then can the JTC
bring a proceeding for judicial misconduct on the
basis of the court’s ruling that a judge committed the
crime of armed robbery.
B. CONDUCT OF THE EXECUTIVE DIRECTOR OF THE JTC
On January 16, 2008, the executive director of the
JTC personally served respondent with a 28-day notice
pursuant to MCR 9.207(D)(1).
26
The executive director
arrived unannounced at respondent’s chambers accom-
panied by an armed Michigan State Police lieutenant.
Apparently, unbeknownst to either respondent or the
director, the police officer recorded the conversation.
The director presented respondent with the 28-day
notice, and asserted that respondent’s office was “va-
cant” because respondent had moved outside his dis-
trict, as evidenced by his homestead tax exemption
26
The notice must be given 28 days before filing a complaint. The
“purpose of the notice is to afford the judge the opportunity to apprise the
commission, in writing within 28 days, of such matters as the judge may
choose, including information about the factual aspects of the allegations
and other relevant issues.” MCR 9.207(D)(1).
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affidavit.
27
In addition to the notice, respondent was
also presented with a petition for interim suspension
without pay, which the director indicated would be
immediately filed and mostly likely granted because
respondent was “not in office.”
The director then offered respondent the “opportu-
nity to resolve” the matter quickly without any “shame,
proceedings, [or] accusations of perjury” by resigning
“immediately,”
28
presenting respondent with a prepared
resignation letter on respondent’s court letterhead. The
director stated that, although the JTC indicated that
respondent had until 9:00 a.m. the next morning to sign
the resignation letter, the director would “prefer” to
have the resignation letter signed “right now” so that
he could “take the letter with” him.
When the respondent protested, seeking “time to
talk to somebody,” the director replied that respondent
would be “suspended in a matter of days” and that it
would all “become public” at a time when respondent
was “up for election.” The director reiterated the 9:00
a.m. deadline, adding that respondent also faced allega-
tions involving the sexually inappropriate behavior, and
the director would get respondent “thrown off [the
bench] just for that.” When respondent asked questions
regarding the basis of the allegations of sexually inap-
propriate behavior, the director replied that he was not
there “to do any type of interview” and would not
“explain anything else.”
The director told the respondent that he could “take
the easy way out” and sign the resignation letter;
otherwise, the director “welcome[d] the opportunity”
27
The director indicated that, if respondent had not abandoned his
office, then he must have filed a false affidavit, which constituted the
crime of perjury.
28
The director reiterated that “immediately means immediately.”
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and would “engage to the fullest” if respondent chose
to “fight it.” When respondent observed that criminal
defendants were given “more consideration” than
was being afforded to him, the director responded
that immediately signing the resignation letter would
“avoid having to drag [respondent’s] name through
the mud,” “avoid any embarrassing situations,” and
avoid the “stain to the state judiciary” of having a
judge who “violates the law, commits perjury, [and]
sexually harasses staff.” After respondent refused to
sign the resignation letter on the spot, the meeting
concluded. A moment later, the director was heard
saying that “it’s like shooting ducks in a barrel.”
When these proceedings commenced, the director’s
threats to humiliate respondent and drag his name
through the mud were soon realized. The details of
the present allegations were widely disseminated in
the local newspapers, on television, and on the Inter-
net over the course of several months. The contro-
versy, including the facts surrounding the meeting
between respondent and director, were the subject of
numerous newspaper articles, editorials, and letters
to the editor.
29
While the actions of the JTC director
have been called into question, this Court need not
address whether he violated any ethical rules because
the proper forum for the review of the JTC director’s
actions is the Attorney Grievance Commission.
29
Disorder in the District Court? Grand R apids Press, January 15,
2008, at B2; Servaas battles to stay on bench, Grand Rapids Press,
February 16, 2008, at A1; Residents critical of inquiry involving judge,
Grand Rapids Press, February 17, 2008, at B1; Rockford rallies around
judge, Grand Rapids Press, February 20, 2008, at B1; Deputies support
Servaas’ bid, Grand Rapids Press, February 27, 2008, at B1; Servaas
attack called ‘reckless’, Grand Rapids Press, March 1, 2008, at A3.
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C. INAPPROPRIATE DRAWINGS AND COMMENT
The remaining allegation of judicial misconduct con-
cerns respondent’s sexually inappropriate conduct di-
rected toward female court employees. The testimony
indicates that on two separate occasions respondent
made lewd drawings—one of female breasts and one of
a penis—on notes that were attached to two court files.
The testimony further indicates that respondent com-
mented on the small chest size of a 2nd Division female
employee during a retirement party at the 2nd Division
courthouse. Notably, even respondent realized he had
made a mistake because he called the employee the
following day to apologize personally to her. Unfortu-
nately, she would not return his calls, so he finally left
a message on her voice mail apologizing for the gaffe.
Respondent’s counsel acknowledged that respon-
dent’s conduct was “inappropriate,” but contended that
it was spontaneous and represented “isolated” inci-
dents from respondent’s nearly 37-year career. Respon-
dent’s counsel argues that respondent’s conduct war-
rants, at most, a public reprimand. This argument is
consistent with the recommendations of the JTC, which
indicated that with respect to count 3, respondent’s
sexually inappropriate conduct merited a public cen-
sure.
We agree with the JTC that respondent’s sexual
conduct was crass and inappropriate; however, we do
not agree that respondent’s conduct rises to the level of
judicial misconduct beyond requiring public censure.
D. VERACITY OF RESPONDENT’S TESTIMONY
While Justice M
ARKMAN
appears to assert that
whether or not the JTC had the authority to proceed,
sanctions against respondent are appropriate given
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Justice M
ARKMAN
’s conclusion that respondent lied
under oath. Having reviewed the entire record
closely, we do not agree with Justice M
ARKMAN
’s
conclusion that respondent lied under oath.
30
On the
contrary, we agree with respondent’s counsel that this
is not a case of arrogance. Instead, it appears that
respondent believed that he was still properly in his
district and that there was no problem with living
outside of the 1st Division.
At the time these proceedings occurred, respondent
had seven residences. He owned homes in both the
1st and 2nd divisions of the 63rd District Court. He
rented a home in the 1st Division, and he also owned
homes in Whitefish Lake, Michigan; Ludington,
Michigan; North Carolina; and Florida. R espondent
testified that he renovates houses as a hobby, and
that from 2000 to 2005, he often spent the night at
one of the two houses he was renovating in the 2nd
Division when he was too tired to drive back to his 1st
Division residence.
30
In fact, respondent’s admissions of moving to the 2nd division house
establish that respondent believed he had nothing to hide because, under
his interpretation of the law, he did not “vacate his office” if he simply
lived in another division of the same district. Further, respondent’s
failure to change the address on his concealed weapons permit does not
establish that he intended to deceive anyone. In the first instance,
respondent was renewing his permit. Since November 13, 2001, the date
the respondent first applied for the permit, his address remained the
same. In fact, as demonstrated by succeeding safety inspection certifi-
cates and by his own testimony for succeeding years, respondent did not
even pay attention to the address line as it had already been completed
for him by the Rockford Chief of Police. All he had to do was sign the
permit. Again, rather than a deliberate attempt to deceive officials about
his change of address, respondent’s explanation was very credible.
Specifically, the failure to change his address was simply an oversight:
respondent did not think to read the form and make any corrections, as
he admitted that he did not read the form—he just put the gun and the
renewed certificate under the bench.
652 484 M
ICH
634 [July
O
PINION BY
W
EAVER
,J.
Thus, during this five-year period, respondent tes-
tified that he went back and forth between the houses
as necessary for the remodeling projects. Certainly he
cannot be expected to have to subsequently provide
facts establishing that he was residing in one house or
two houses after so much time had passed and
without being prompted by any particular reason to
so do. Again, respondent’s actions in this regard
support his perception that it didn’t matter whether
he spent the night at the 1st Division house or the
2nd Division house, because he was still residing in
the 63rd District.
Respondent admitted that from 2005 on, he resided
in the 2nd Division home, and the record reflects that he
did nothing to hide this fact. Indeed, respondent’s
name, address, and telephone number for the 2nd
Division home were listed in the local phone book.
Specifically during a meeting in approximately late
March 2006 between respondent, the State Court Ad-
ministrator, and the JTC executive director, the State
Court Administrator, said to respondent, “You’re not
living in your district.” In response, respondent said “I
am too.” Importantly, we note that even though respon-
dent was first accused of vacating his judicial office in
early 2006, it appears that no assertion was made again
until respondent was ambushed on January 16, 2008.
Again, respondent did not try to deny the fact that he
was living in the 2nd Division at that time, because he
thought he could live in that division as long as he was
not running for reelection.
Consequently, we do not conclude that respondent
lied under oath. At times he seemed confused and could
not remember a series of different telephone numbers
(until he later refreshed his recollection), specific dates
and times, and events that occurred nearly 10 years
2009] In re S
ERVAAS
653
O
PINION BY
W
EAVER
,J.
before he testified. In fairness, we cannot conclude that
respondent intentionally lied under oath.
III. CONCLUSION
Because we conclude that the only appropriate forum
to determine whether respondent vacated his judicial
office was a quo warranto action filed by the Attorney
General in the Court of Appeals, we reject the JTC’s
recommendation with respect to the vacation of office
claim. Because the JTC lacked legal authority to bypass
submission of the quo warranto action by the Attorney
General, the finding that respondent vacated his office
is null and void. The powers held by the JTC simply do
not include the power by the JTC to determine the
existence of a vacancy in judicial office.
Finally, with respect to the claim against respondent
for judicial misconduct involving a comment and two
drawings of a sexual manner, while respondent’s con-
duct was unquestionably inappropriate, we believe,
under the unique circumstances of this case that only
public censure is required. Accordingly, this opinion
stands as our public censure.
Pursuant to MCR 7.317(C)(3), we direct the Clerk of
the Court to issue the judgment order immediately.
C
AVANAGH
and H
ATHAWAY
, JJ., concurred with
W
EAVER
,J.
W
EAVER
,J.(concurring separately). I authored and join
the lead opinion; however, I write separately to request
that this Court open an administrative file to investigate
how this matter unfolded, including the events and ac-
tions of the Judicial T enure Commission (JTC) and/or
others responsible leading up to the JTC’s recommenda-
tion of this case to this Court.
H
ATHAWAY
, J., concurred with W
EAVER
,J.
654 484 M
ICH
634 [July
S
EPARATE
O
PINION BY
W
EAVER
,J.
K
ELLY
,C.J.(concurring in part and dissenting in
part).
*
I concur in Justice W
EAVER
’s lead opinion except for
part II(A) and the portions of the introduction and con-
clusion discussing quo warranto.
I agree with Justice M
ARKMAN
that the existence of an
action for quo warranto does not prevent the Judicial T en-
ure Commission from assessing respondent’s misconduct,
regardless of whether that conduct happens to in volve the
improper exercise of a title to office. Accordingly, I concur
in part II of Justice M
ARKMAN
’s opinion. Given Judge
Servaas’s admission that he moved outside his election
division, I find that he did vacate his judicial office.
Under the unique facts of this case, I find that public
censure is the appropriate sanction for the violations of
counts I (vacating judicial office) and III (inappropriate
sexual conduct).
M
ARKMAN
,J.(dissenting). The Court today rejects the
unanimous recommendation of the nine-member Judicial
T enure Commission (JTC) to sanction respondent, Judge
Steven Servaas, for misconduct that involves moving
outside of the district from which he was elected in direct
violation of Article 6, § 20 of the Michigan Constitution,
and MCL 600.8201, and thereby fundamentally breaching
faith with his constituents; and by then engaging in a
pattern and practice of actions to conceal this misconduct,
including providing false testimony under oath. Based on
the Commission’s findings and on the record below, I
agree with the JTC , and disagree with the majority in its
refusal to sanction respondent for conduct directly impli-
cating the integrity of the judiciary. I therefore dissent.
Moreover, in rejecting the JTC’s unanimous determina-
tion that respondent lied under oath, the majority aff-
ords no deference whatsoever to the Commission’s factual
findings.
1
Instead, the majority engages in a
*
Amended by order entered September 11, 2009, 485 Mich 869—
R
EPORTER
.
1
Justice W
EAVER
asserts that this Court has “no duty to...defer...to
2009] In re S
ERVAAS
655
O
PINIONS BY
K
ELLY
, C.J.,
AND
M
ARKMAN
,J.
superficial analysis that does not accurately reflect the
record established in this case.
Perhaps most remarkably, in asserting that the JTC
lacks jurisdiction to sanction respondent, Justice W
EAVER
in her lead opinion (albeit not a majority opinion in this
regard) concludes that the JTC lacks even the authority to
investigate a judge for breaching his or her constitutional
obligations, on the grounds that the JTC is forbidden even
to undertake actions regarding judicial misconduct if such
misconduct could “in the first instance” have been ad-
dressed by an alternative legal proceeding, in this case by
an action for quo warranto. Justice W
EAVER
’s assertion is
a profoundly distorted interpretation of the JTC’s author-
ity and would significantly circumscribe the commission’s
ability to effectively investigate and address instances of
judicial misconduct.
I. FACTS
In January 2008, the JTC initiated proceedings
against respondent, asserting that he had moved out-
side the 1st Division of the 63rd District Court located
in Kent County, and from which he had been elected, in
violation of the constitution and statutes of this state.
2
the JTC’s recommendation[s]...or...decision[s]... .” ante at 646 (em-
phasis omitted). It may be worth noting that this statement of firm
conviction is directly contrary to In re Brown, 461 Mich 1291, 1293 (2000),
in which this Court, including Justice W
EAVER
, stated that “[w]here stan-
dards...have been promulgated [by this Court] and reasonably applied to
individual cases, this Court owes considerable deference to the JTC.”
Further, in In re Chrzanowski, 465 Mich 468, 488; 636 NW2d 758 (2001),
again with Justice W
EAVER
in the majority, this Court stated that “[w]e find
[the JTC’s] analysis to be reasonably done and therefore accord the
recommendations of the JTC considerable deference.”
2
The 63rd District Court has two divisions. The 1st Division includes
the cities of Cedar Springs and Rockford, and the townships of Tyrone,
Solon, Nelson, Spencer, Sparta, Algoma, Courtland, Oakfield, Alpine,
Cannon, Plainfield, and Grattan, and “has 1 judge.” MCL 600.8130(4)(a).
The 2nd Division encompasses the township of Ada, as well as the cities
656 484 M
ICH
634 [July
D
ISSENTING
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PINION BY
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ARKMAN
,J.
This belief was premised on respondent having moved
his residence to 201 Honey Creek Avenue, a property
located in the 63rd District’s 2nd Division. On January
16, 2008, the JTC’s examiner, accompanied by an officer
from the Michigan State Police, went to respondent’s
office to deliver charging papers. The examiner commu-
nicated the JTC’s belief that respondent had moved
outside his division and, therefore, had vacated his
office. The examiner told respondent he could resign by
the next day or else be subject to disciplinary proceed-
ings, including an immediate petition for interim sus-
pension without pay. R espondent did not resign.
On January 17, 2008, the JTC filed a petition for
interim suspension with this Court on the ground that
respondent’s residence was outside the 1st Division.
The next day, the JTC filed a supplemental petition,
arguing that respondent had created a “dangerous
situation” by keeping a loaded pistol behind his bench.
3
This Court unanimously denied this petition on Febru-
ary 1, 2008.
On February 14, 2008, the JTC filed a second petition
for interim suspension, setting forth the additional
argument that respondent had removed himself from
his elected division and also engaged in inappropriate
behavior. The JTC also filed a complaint against respon-
dent on the same day. The complaint alleged that
respondent had vacated his judicial office by moving his
of East Grand Rapids and Lowell, and the townships of Grand Rapids,
Cascade, Vergennes, Lowell, Byron, Gaines, Caledonia and Bowne, and
also “has 1 judge.” MCL 600.8130(4)(b). Respondent has been regularly
elected to, and has maintained his courtroom in, the 1st Division in
Rockford, Michigan since January 1973.
3
During the examiner’s visit on January 16, 2008, the Michigan State
Police officer confiscated the pistol from an unlocked box behind the
bench. The examiner did not allege any misconduct in the complaint
based on the pistol, and respondent possessed a valid concealed weapons
permit.
2009] In re S
ERVAAS
657
D
ISSENTING
O
PINION BY
M
ARKMAN
,J.
residence from the 1st Division to the 2nd Division, and
that he was not a registered elector of the division from
which he was an elected judge. The complaint also
alleged that respondent engaged in misconduct directed
toward female court employees. This Court unani-
mously denied the second petition on April 9, 2008.
Pursuant to MCR 9.210(B)(1) we appointed a master
to hold hearings and make findings of fact and law.
4
The
master held a hearing between March 28, 2008, and
April 3, 2008, to determine the merit of the allegations
contained in the JTC’s complaint. The master found
that respondent had moved to 201 Honey Creek in 2005
in violation of article 6, § 20 of the Michigan Constitu-
tion. By doing so, he was also no longer a “registered
elector” of the 1st Division as required by MCL
600.8201. Thus, the master concluded that respondent
had failed to comply with the constitutional and statu-
tory requirements necessary to hold a judicial position,
in violation of Canon 2(B) of the Code of Judicial
Conduct.
5
The master also concluded that certain inap-
propriate drawings and comments on respondent’s part
constituted judicial misconduct and compromised the
integrity of the court. R espondent then filed objections
with the master’s findings to the JTC in accordance
with MCR 9.215.
6
4
The master was Casper O. Grathwohl, a retired judge from the 2nd
Circuit Court in Berrien County.
5
Canon 2(B) of the Code of Judicial Conduct states in part:
A judge should respect and observe the law. At all times, the
conduct and manner of a judge should promote public confidence
in the integrity and impartiality of the judiciary.
6
MCR 9.215 states in part:
[T]he examiner or the respondent may file with the commis-
sion an original and 9 copies of a statement of objections to the
report of the master, along with a supporting brief.
658 484 M
ICH
634 [July
D
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PINION BY
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ARKMAN
,J.
On October 17, 2008, the JTC unanimously agreed
with, and adopted, the master’s findings, except that
the commission found that respondent had, in fact,
moved to 201 Honey Creek in Ada Township in 2000
rather than 2005.
7
This finding was based primarily on
telephone logs that the examiner had introduced during
the master’s hearing. These logs contained telephone
numbers that respondent had provided to the district
court indicating where he could be located after hours,
8
and showed that respondent provided his 201 Honey
Creek telephone number almost exclusively as his after-
hours contact location from 2000 until 2008. From
these logs, the JTC concluded that respondent’s consis-
tent listing of 201 Honey Creek as his after-hours
location for an eight-year period indicated that he, in
fact, had lived at 201 Honey Creek during that time.
Moreover, the JTC found that respondent’s assertion
that he had not moved outside of his division prior to
2005 demonstrated a “lack of candor and honesty,”
which amounted to “false testimony” as to his residence
from 2000 to 2005.
Based on these findings, the JTC recommended that
respondent be removed from office. He now challenges
that recommendation and argues that this Court lacks
7
MCR 9.220(B)(1) authorizes the JTC to adopt the master’s findings in
whole or in part, and provides:
The commission must make written findings of fact and
conclusions of law along with its recommendations for action with
respect to the issues of fact and law in the proceedings, but may
adopt the findings of the master, in whole or in part, by reference.
8
As part of his judicial duties, respondent was required to be “on call”
several nights per week in order to respond to police requests for
warrants, and for other emergencies. Judges and magistrates rotated
being on call, and were required to provide an after-hours contact
number at which they could be reached.
2009] In re S
ERVAAS
659
D
ISSENTING
O
PINION BY
M
ARKMAN
,J.
the authority to sanction him for judicial misconduct
because an action for quo warranto constitutes the
exclusive legal proceeding to evaluate his title to office
before his November 2008 reelection.
II. QUO WARRANTO
Justice W
EAVER
agrees with respondent and asserts
that this Court need not decide whether the allegations
set forth in the complaint are true “because our stat-
utes, caselaw, and court rules provide that a quo war-
ranto action brought by the Attorney General in the
Court of Appeals is the only appropriate and exclusive
proceeding to make the preliminary determination re-
garding whether respondent vacated or unlawfully held
his judicial office.” Ante at 643 (emphasis in original).
In my view, Justice W
EAVER
misapprehends the nature
of the action now before this Court, which is a disci-
plinary proceeding that the JTC and this Court are
constitutionally empowered to pursue, Const 1963, art
6, § 30(2), not an action directly concerned with respon-
dent’s current claim to his office.
9
Most importantly,
this Court’s authority to sanction judicial misconduct is
not restricted, or otherwise affected in any way, by the
existence of an action for quo warranto, which is only
available for the purposes of removing from public
office an official who fails currently to hold valid title to
9
Although an action for quo warranto is altogether unrelated to the
disciplinary action at issue here, Justice W
EAVER
, and respondent, set
forth what I view as an erroneous theory suggesting that the JTC has no
authority to use any facts that could support a judicial disciplinary action
if those facts could also be used in a quo warranto proceeding. Because,
in my judgment, this theory would preclude this Court from considering
facts that are necessary to fully address respondent’s misconduct and to
determine a proportionate sanction, I believe it is necessary to refute this
theory. I reiterate, however, that Justice W
EAVER
’s theory, although set
forth in the lead opinion, does not have majority support.
660 484 M
ICH
634 [July
D
ISSENTING
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PINION BY
M
ARKMAN
,J.
that office. Finally, Justice W
EAVER
’s assertion that the
JTC, in the context of a disciplinary proceeding which
involves the validity of a judge’s title to office, must rely
on the factual findings of the Court of Appeals in a quo
warranto action is directly contrary to this Court’s own
guidance in In re Kapcia, 389 Mich 306; 205 NW2d 436
(1973), and would undermine the JTC’s duty to make
individualized and independent factual findings with
regard to whether judicial misconduct has occurred.
The JTC is a constitutionally established entity,
Const 1963, art 6, § 30(1), that was created to assist the
people of Michigan, and this Court, in evaluating the
conduct and behavior of judges currently holding office
throughout this state. Article 6, § 30(2) of the Michigan
Constitution describes the relationship between the
JTC and this Court as follows:
On recommendation of the judicial tenure commission,
the supreme court may censure, suspend with or without
salary, retire or remove a judge for conviction of a felony,
physical or mental disability which prevents the perfor-
mance of judicial duties, misconduct in office, persistent
failure to perform his duties, habitual intemperance or
conduct that is clearly prejudicial to the administration of
justice. The supreme court shall make rules implementing
this section and providing for confidentiality and privilege
of proceedings. [Emphasis added.]
In MCR 9.205(B), this Court has provided guidance to
the JTC for determining what constitutes judicial “mis-
conduct in office”:
A judge is subject to censure, suspension with or with-
out pay, retirement, or removal for conviction of a felony,
physical or mental disability that prevents the performance
of judicial duties, misconduct in office, persistent failure to
perform judicial duties, habitual intemperance, or conduct
that is clearly prejudicial to the administration of justice.
In addition to any other sanction imposed, a judge may be
2009] In re S
ERVAAS
661
D
ISSENTING
O
PINION BY
M
ARKMAN
,J.
ordered to pay the costs, fees, and expenses incurred by the
commission in prosecuting the complaint only if the judge
engaged in conduct involving fraud, deceit, or intentional
misrepresentation, or if the judge made misleading state-
ments to the commission, the commission’s investigators,
the master or the Supreme Court.
***
(2) Conduct in violation of the Code of Judicial Conduct
or the Rules of Professional Conduct may constitute a
ground for action with regard to a judge, whether the
conduct occurred before or after the respondent became a
judge or was related to judicial office.
(3) In deciding whether action with regard to a judge is
warranted, the commission shall consider all the circum-
stances, including the age of the allegations and the possi-
bility of unfair prejudice to the judge because of the
staleness of the allegations or unreasonable delay in pur-
suing the matter.
In addition, MCR 9.220(B) expressly authorizes the
JTC to make both factual and legal determinations
regarding whether a judge has committed misconduct
that warrants an official sanction, which may range
from a private censure to removal from office, and, as
noted at note 7 supra, it allows the JTC to adopt the
master’s findings in whole or in part.
Although the JTC and this Court are constitutionally
vested with the authority to address all matters of
judicial misconduct, Justice W
EAVER
concludes that this
authority is implicitly limited by the existence of an
action for quo warranto. Quoting Frey v Michie,68
Mich 323, 327; 36 NW 184 (1888), she notes that the
“determination can only be made ...inaquowarranto
proceeding....”Ante at 645.
As an initial matter, Justice W
EAVER
’s discussion of
quo warranto fails to acknowledge that an action for
quo warranto is an entirely distinct legal proceeding
662 484 M
ICH
634 [July
D
ISSENTING
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PINION BY
M
ARKMAN
,J.
from a disciplinary action initiated by the JTC.
10
As
provided in MCR 3.306(A)(1),
[a]n action for quo warranto against a person who usurps,
intrudes into, or unlawfully holds or exercises a state office,
or against a state officer who does or suffers an act that by
law works a forfeiture of the office, must be brought [by the
Attorney General] in the Court of Appeals.
Because an action for quo warranto can be pursued
against “a person” who unlawfully holds any “state
office,” including a judgeship, this action, in one sense,
has a much broader application than a JTC disciplinary
action, which can only be initiated against a judge.
However, unlike a JTC proceeding, an action for quo
warranto is only available to address a narrowly cir-
cumscribed range of judicial misconduct, which is re-
stricted to that calling into question a judge’s title to
office. To that extent, an action for quo warranto has a
more limited application than a JTC disciplinary action.
Perhaps most importantly, the fact that these two
actions may sometimes be applicable to the same set of
facts, does not alter the distinctive nature of each, and
certainly does not indicate that the viability of one is
somehow restricted by the existence of the other.
Although respondent’s conduct did call into question
his title to office between 2000 and 2008, there is no
statutory or constitutional restriction on the JTC’s
authority to proceed with an action based upon the
misconduct that was represented by his actions. In fact,
despite the fact that an action for quo warranto and a
10
In light of the distinct nature of these proceedings, as expressly
recognized in this opinion, it is remarkable that Justice W
EAVER
could
assert that I somehow claim that “the JTC has...legal authority to
bring a complaint of quo warranto and a complaint of judicial misconduct
in a JTC proceeding.” Ante at640n9(emphasis added). This is a badly
distorted interpretation of what is plainly stated, to wit, that the JTC can
never pursue an action for quo warranto under any circumstances.
2009] In re S
ERVAAS
663
D
ISSENTING
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PINION BY
M
ARKMAN
,J.
JTC disciplinary action may overlap in their applicabil-
ity to some instances of judicial misconduct, as they did
here prior to the date respondent began serving his new
term of office in 2009, Justice W
EAVER
has supplied no
rationale as to why an action for quo warranto, which
was created by the Legislature and this Court, should
constitute the exclusive means to address such miscon-
duct, especially in view of the fact that the JTC is the
only entity that is constitutionally empowered to ad-
dress all matters of judicial misconduct.
In addition to the fact that an action for quo war-
ranto is altogether distinct from a JTC disciplinary
proceeding, there are three supportive arguments for
why an action for quo warranto has no application in
the instant context. First, an action for quo warranto is
only applicable to claims that a public official is cur-
rently exercising an invalid title to office.
11
This obser-
vation is supported by MCL 600.4505, which describes
the nature of a quo warranto action:
(1) In actions brought against persons for usurpation of
office, the judgment may determine the right of the defen-
dant to hold the office. If a party plaintiff alleges that he is
entitled to the office, the court may decide which of the
parties is entitled to hold the office.
(2) If judgment is rendered in favor of a party who is
averred to be entitled to the office, he is entitled, after
taking the oath of office, and executing any official bond
which is required by law, to take the office. Such party shall
11
Justice W
EAVER
asserts that “[t]here is no support for [my]
argument,” ante at 643 n 15, that “actions for quo warranto may only
be brought for ‘claims that a public official is currently exercising an
invalid title to office.’ ” Quite apart from the law that has been cited
in this section, Justice W
EAVER
seems to be unaware that a judge who
previously held unlawful title to office could never be subject to a quo
warranto action because the issue would necessarily be moot.
664 484 M
ICH
634 [July
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PINION BY
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ARKMAN
,J.
be given all the books and papers in the custody of the
defendant, or within his power, belonging to the office.
Significantly, MCL 600.4505 uses language written ex-
clusively in the active voice, which suggests that the
Legislature did not intend for this action to be initiated
against a public official who is not currently holding
office or who has previously exercised title to his or her
office improperly. Indeed, as indicated in MCL
600.4505, and further supported by MCL 600.4511 and
MCL 600.4515, an action for quo warranto is most
frequently the procedure employed to resolve conflict-
ing claims to office.
12
MCL 600.4511 provides:
When an action is brought against a person for usurping
an office and the person rightfully entitled to the office is a
party and avers his right to it, and judgment is rendered in
his favor, he is entitled to any damages sustained because of
the usurpation by the defendant of the office from which
the defendant has been evicted. The claim for damages may
be joined with the claim for quo warranto, or brought
separately within 1 year after the judgment in the action
for quo warranto.
MCL 600.4515 provides:
Whenever any defendant in a quo warranto proceeding
is found or adjudged guilty of usurping or intruding into or
unlawfully holding or exercising any office, franchise, or
12
The only apparent exception to the rule that a quo warranto action
may only be brought to oust an officer who is currently exercising
authority under an invalid claim to office is described in Osterhous ex rel
Vander Veen v Van Duren, 168 Mich 464, 466; 134 NW 456 (1912), in
which this Court stated:
Ordinarily proceedings to try title to a public office cannot be
brought after the term has expired, or when it is so nearly expired
that the inquiry would be of no effect; but an action commenced
during the term of office may be prosecuted to final judgment after
the expiration of the term, for the recovery of damages or costs
which relator has sustained or incurred by the wrongful assump-
tion of authority.
2009] In re S
ERVAAS
665
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ARKMAN
,J.
privilege, judgment shall be rendered that the defendant be
ousted and altogether excluded from that office, franchise,
or privilege. In addition to awarding costs against the
defendant, the court may, in its discretion, impose a fine
upon the defendant found guilty, not exceeding $2,000.00.
Thus, MCL 600.4511, again using the active voice,
suggests that an action for quo warranto constitutes a
procedure intended to resolve conflicting claims to an
office, regardless of whether misconduct was involved,
by determining which party has the superior current
claim.
13
Because there is no dispute as to respondent’s
13
Although quo warranto is most often used to determine competing
claims to an office, Lamoreaux v Ellis, 89 Mich 146, 161; 50 NW 812
(1891), nonetheless makes clear that an action for quo warranto may be
used to oust a current “intruder” from office even without a competing
claim. Lamoreaux stated:
The attorney general ought not to institute proceedings by quo
warranto upon the relation of a citizen having no claim of title to
the office, unless the showing is such as to afford reasonable
grounds for the belief that the incumbent of the office is an
intruder therein, or one not competent under the Constitution to
hold it. [Id.]
Indeed, this is the purpose for which the writ was originally employed in
England. Although the writ dates back as far as the reign of King Richard
I (1189-1199), it was most notably invoked during the reign of King
Edward I (1272-1307).
“ ‘Claimants were to appear before them [itinerant judges riding in
circuit], and if it was found that they actually held any franchise, a writ of
Quo Warranto would be served on them, requiring them to show by what
warrant they claimed to have the liberty of wreck, or gallows, or view of
frankpledge, or return of writs, or whatever it might be.’ ” Frohnen, The one
and the many: Individual rights, corporate rights and the diversity of
groups, 107 W Va L R 789, 818 (2005) (citation omitted). If the claimant
could not answer the writ successfully by showing the proper exercise of
title, the franchise could be confiscated by the Crown. Id. at 819. The writ
was then carried over to America in 1685 when King James II unsuccessfully
attempted to use quo warranto proceedings to “revok[e] the colonial
charters of the proprietary colonies in New England[]” as a method of
maintaining control over the colonies. Gitelman, The separation of law and
equity and the Arkansas chancery courts: Historical
666 484 M
ICH
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ARKMAN
,J.
current claim to office, an action for quo warranto has
no application to the present facts.
Second, MCL 600.4515 provides that the sole remedy
for a quo warranto action is that a “judgment shall be
rendered that defendant be ousted....”
14
By contrast, a
disciplinary action initiated by the JTC can result in a
range of sanctions spanning from a simple censure to
removal from office, see Const 1963, art 6, § 30(2), and
the JTC and this Court must ultimately determine
what constitutes a “reasonable relationship,” or “pro-
portionality,” between particular misconduct and these
available sanctions. In re Brown, 461 Mich 1291, 1292
(2000). Thus, the inflexible “one size fits all” remedial
aspect of a quo warranto action also demonstrates why
the disciplinary action being pursued by the JTC is the
proper proceeding in which to address respondent’s
misconduct.
Third, as this Court concluded in Kapcia, 389 Mich at
314, the JTC is prohibited from relying on, or adopting,
another entity’s factual findings and conclusions as a
anomalies and political realities, 17 U Ark Little Rock L J 215, 228 (1995).
Thus, both historically and currently, quo warranto actions have never been
used to ascertain whether an officer or franchise-holder previously exercised
proper title to office, and never has the writ been invoked to discern whether
the one who claims valid title has engaged in misconduct, much less previous
misconduct.
14
See Attorney General, ex rel Cook v Burhans, 304 Mich 108; 7 NW2d
370 (1942) (“The attorney general, . . . by information in the nature of quo
warranto, seeks ouster of defendant from the office of regent of the
University of Michigan on the ground that he has no legal right to the office
and is a mere usurper therein . . . . Defendant having usurped the office of
regent, in defiance of the mandate of the constitution barring him under any
circumstances from holding such office and rendering all votes cast for him
void, it was proper for the attorney general to bring this proceeding in the
nature of quo warranto to oust him from such office.”); Layle v Adjutant
General, 384 Mich 638, 642; 186 NW2d 559 (1971), citing Sobocinski v
Quinn, 330 Mich 386; 47 NW2d 655 (1951) (“[P]laintiff instituted quo
warranto proceedings to oust defendant from office[.]”).
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basis for recommending that this Court impose a sanc-
tion for judicial misconduct; rather, the JTC must make
independent factual findings in this regard. In Kapcia,
the Attorney Grievance Commission revoked the re-
spondent’s license to practice law. However, shortly
thereafter, the respondent was elected as a probate
judge. The JTC, citing the revocation of the respon-
dent’s law license, argued that the respondent had
violated article 6, § 19 of the Michigan Constitution,
which requires all judges in this state to have a valid law
license.
15
Thus, the JTC concluded that the respondent
had vacated his office and had therefore committed
judicial misconduct. This Court rejected that argument,
stating:
Manifestly, this contention begs the question; it presup-
poses that the removal from office which the [JTC] seeks
by these proceedings to accomplish has already occurred.
The [JTC]’s presentation proceeds on the erroneous
assumption that the [JTC] had no choice once it was
established that Judge Kapcia had been suspended from
the practice of law but to recommend his removal and that
this Court, likewise, has no choice but to remove him; that,
indeed there truly is nothing before us to consider because
the consideration of whether the professional misconduct
charged against Judge Kapcia was proven and what to do
about it ended when the order of the Grievance Board
became final.
The discipline of judges is confided to the discretion of
the [JTC] and this Court under § 30 of art 6. It is left to [a]
case-by-case exercise of discretion to decide whether a
justice or judge—presumably duly licensed to practice law
when he qualified as a justice or a judge—whose conduct
results in [the] loss of his right to practice law should be
disciplined by removing him from office. [Kapcia, 389 Mich
at 314.]
15
Const 1963, art 6, § 19 states that “justices and judges of courts of
record must be persons who are licensed to practice law in this state.”
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Ultimately, Kapcia concluded that the JTC must
investigate the facts underlying the Attorney Grievance
Commission’s decision to suspend the respondent’s
license in order to determine if judicial misconduct had
occurred.
Thus, had the Commission commenced a proceeding
against Judge Kapcia charging him with misconduct based
on the acts which gave rise to the State Bar grievance
proceedings, the Commission would have been obliged to
consider all the circumstances in deciding whether to
recommend disciplinary action. The Commission’s respon-
sibility in that regard cannot be avoided by viewing the
matter as a fait accompli. Nor can we, by total reliance on
the decision reached in the grievance proceedings, escape
our responsibility to exercise an individualized judgment.
[Id. at 312.]
In holding that the JTC cannot escape its responsibility
to “exercise an individualized judgment” based on “all
circumstances,” to determine what disciplinary action
is appropriate, Kapcia indirectly observed that the JTC
and this Court must possess the authority to examine a
judge’s misconduct for actions that may also serve as
the basis for a quo warranto action. Specifically, Kapcia
distinguished cases on which the JTC had relied, in
which judges had been ousted from office for losing
their license to practice law, thereby amounting to a
vacation of office, because those cases all involved
actions for quo warranto. Id. at 313-314. There is
simply no reason for this Court to have discussed the
proper procedure for pursuing disciplinary actions
against the judge in Kapcia, while expressly recognizing
that other cases for quo warranto have resulted in
ousting a judge from office for losing his or her license,
if the JTC is not empowered to make recommendations
for disciplinary actions, which this Court is then free to
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accept or reject, based on conduct that could also form
the basis of a quo warranto action.
16
In contrast to this Court’s holding in Kapcia, the
majority states:
While this Court could certainly review on appeal the
decision made by the Court of Appeals in a quo warranto
action, and could determine whether the conduct sur-
rounding respondent’s forfeiture of office rose to the level
of judicial misconduct warranting judicial discipline, an
original proceeding in the Supreme Court is not the appro-
priate place to determine in the first instance whether
respondent vacated his office. Rather, the law requires that
this question be initiated by the Attorney General and
resolved as an initial matter by the Court of Appeals. [Ante
at 644-645.]
Justice W
EAVER
’s assertion that a quo warranto action
is a prerequisite to the JTC’s, and this Court’s, ability
to make determinations that respondent committed
misconduct, including specifically the vacation of office,
by stating that “an original proceeding in the Supreme
Court is not the appropriate place to determine in the
first instance” that misconduct occurred, is exactly
counter to Kapcia’s counsel that the JTC’s “responsi-
bility in that regard cannot be avoided by viewing the
matter as a fait accompli.” Rather, the JTC must make
independent findings of fact that misconduct occurred,
irrespective of another entity’s findings and conclusions
16
Justice W
EAVER
states that Kapcia “does not support” the assertion
that “actions for quo warranto may only be brought for ‘claims that a
public official is currently exercising an invalid title to office.’ ” Ante at
643 n 15. However, I do not cite Kapcia for such a proposition. Rather, I
cite Kapcia only for the proposition that the JTC is prohibited from using
the findings of another entity as a substitute for engaging in its own
factual inquiries. Thus, Kapcia is pertinent here by establishing that the
JTC cannot simply adopt the Court of Appeals’ findings of fact in a quo
warranto action as a substitute for making its own independent factual
findings regarding judicial misconduct.
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regarding the same issue. Therefore, even if the Attor-
ney General had successfully pursued a quo warranto
action against respondent during his prior term in
office, the JTC would still have had to make its own
factual findings that respondent vacated his office in a
current disciplinary proceeding as a precondition to the
conclusion that such a vacation of office constituted
judicial misconduct.
Justice W
EAVER
demonstrates her confusion in this
regard by stating:
By analogy, Const 1963, art 6, § 30(2) provides that this
Court may discipline, retire, or remove a judge for convic-
tion of a felony. It could hardly be argued, however, that
this Court rather than the circuit court should adjudicate
and convict the judge of the felony simply because the
unresolved predicate issue arose during the course of a
judicial disciplinary proceeding. [Ante at 645 n 24.].
This Court does not “convict a judge of [a] felony”
simply because the same facts that support the felony
are presented “during the course of a judicial disciplin-
ary proceeding.” Rather, a disciplinary proceeding
against a judge may properly lead to a finding of facts by
a preponderance of the evidence that judicial miscon-
duct has occurred, In re Noecker, 472 Mich 1, 8; 691
NW2d 440 (2005) (holding that the examiner has “the
burden of proving the allegations by a preponderance of
the evidence”), which might otherwise constitute a
felony if found by the circuit court beyond a reasonable
doubt.
17
Justice W
EAVER
’s example of the circuit court
17
This observation also seems to have led to confusion on Justice
W
EAVER
’s part, whereby she notes that “[i]t could hardly be argued,
however, that this Court rather than the circuit court should adjudicate
and convict the judge of the felony simply because the unresolved
predicate issue arose during the course of a judicial disciplinary proceed-
ing.” Ante at 645 n 24. Once again, despite an express statement to the
contrary, in this instance that “this Court does not convict a judge of a
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having to find that a felony actually occurred before the
JTC can recommend that the judge be removed for
committing a felony does not address the issue now
before this Court. Article 6, § 30(2) of the Michigan
Constitution explicitly allows a sitting judge to be
removed from office if he is found guilty of a felony. This
is one of several specifically enumerated situations in
the constitution that effectively establish a substituted
process, i.e., a process allowing the JTC and this Court,
to view something as a “fait accompli” without requir-
ing an individualized fact-finding process to determine
that a judge has engaged in misconduct.
18
Kapcia, 389
Mich at 313. Notably, however, an action for quo war-
ranto is not one of the specifically enumerated situa-
tions that would allow the JTC to bypass its responsi-
bility to make an “individualized judgment” based on
“all the circumstances,” which is required before the
JTC can recommend that this Court sanction a judge
for misconduct.
In sum, Justice W
EAVER
’s failure to recognize the
distinction between a quo warranto action and a disci-
plinary action is of critical importance. She is correct
that an action for quo warranto constitutes the “exclu-
felony,” but rather finds “by a preponderance of the evidence that judicial
misconduct has occurred,” Justice W
EAVER
directly misrepresents the
proposition being asserted. See also note 8, supra. Neither this Court nor
the JTC can convict a judge of a felony. However, the JTC can consider, as
a basis for recommending that a judge be sanctioned, the underlying
actions that constitute judicial misconduct. For example, a judge who
assaults another person, but who is not ultimately convicted for one of
any number of reasons unrelated to his culpability, may still be subject to
a JTC disciplinary action on the basis of such conduct. Does Justice
W
EAVER
truly disagree with this same proposition? Does she believe that
a judge under these circumstances would be immune from a JTC
disciplinary action?
18
See Kapcia, 389 Mich at 313, for a listing of these specifically
enumerated situations.
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sive method for trying title to office,” Gildemeister v
Lindsay, 212 Mich 299, 303; 180 NW 633 (1920), but the
exclusive nature of such an action would exist in regard
to a judge only if no judicial misconduct was involved.
Where a judge’s actions constitute misconduct and a
vacation of office, both an action for quo warranto,
initiated by the Attorney General, and a disciplinary
proceeding, initiated by the JTC, may be pursued. Here,
the JTC has initiated a disciplinary action based on
respondent’s misconduct which, as a result of his inter-
vening reelection in November 2008, now pertains to
respondent’s previous term in office, which in turn
means an action for quo warranto is no longer apposite.
Further, unlike an action for quo warranto, a disciplin-
ary action initiated by the JTC can address a judge’s
misconduct that occurred before his current term in
office, MCR 9.205(B)(2), and may result in an appropri-
ate sanction short of removal from office, MCR
9.205(B). Because an action for quo warranto cannot lie
where the term of office for which the title being
contested has expired, Layle, 384 Mich at 642,
19
which
19
Indeed, if the Attorney General pursues a proper action for quo
warranto, but, before that claim is resolved, the judge wins a subsequent
reelection, the action becomes moot and must be dismissed. As we stated
in Layle, 384 Mich at 645:
Even if the office has not been abolished, proceedings to try
title to a public office cannot be brought after the term has expired,
or even if it is so nearly expired that the inquiry would be of no
effect. Osterhous ex rel Vander Veen v Van Duren, 168 Mich 464;
134 NW 456 (1912). The writ generally will not lie to try the
abstract title to an office.
Although such a result initially may seem anomalous, the fact that a quo
warranto action cannot survive without an ongoing dispute regarding an
individual’s title to office simply emphasizes the point that an action for quo
warranto is of a fundamentally different nature than a disciplinary action
initiated by the JTC. Whereas an action for quo warranto is only viable so
long as there remains a current dispute regarding a judge’s title to office, a
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as Justice W
EAVER
correctly notes is exactly the situa-
tion now before this Court because of respondent’s
reelection in 2008, the only avenue available to address
his past conduct is the very type of disciplinary proceed-
ing that the JTC has initiated here. As a consequence,
this Court does possess the authority, derived from the
constitution, to sanction respondent for his misconduct,
based on the JTC’s findings of misconduct and recom-
mendation for discipline.
20
Finally, Justice W
EAVER
’s misunderstanding of quo
warranto would generate several notable consequences.
As an initial matter, Justice W
EAVER
concludes that the
JTC is precluded from bringing a disciplinary action
against respondent in the absence of an action for quo
warranto. That is, this Court would not be entitled to
accept the JTC’s recommendation for disciplinary ac-
tion based on a judge’s misconduct that also called into
disciplinary action arising from misconduct that undermined one’s title to
office remains available after the title dispute has been resolved or rendered
moot.
20
Justice W
EAVER
claims that my argument “conflates the complaint of
vacation of office with the other complaints concerning inappropriate
sexual conduct.” Ante at 639 n 9. As with several of her other arguments,
see notes 9 and 16 of this opinion, this has utterly no basis in the actual
language of this opinion. As should be quite clear to the ordinary reader,
the discussion of quo warranto in this opinion is only relevant to whether
respondent can be sanctioned for his “misconduct” of vacating the
district from which he was elected. By its very terms, the discussion of
quo warranto has no relevance to any other alleged incident of miscon-
duct in this case.
The lack of regard for precision in language is further reflected in
Justice W
EAVER
’s characterization that I describe her rejection of the
JTC’s recommendations as “unbelievable,” ante at 646, a word I use only
in an entirely different context with reference to certain actions of the
respondent. Infra at 694. My actual analysis of Justice W
EAVER
’s opinion
is that it is legally and constitutionally unsound, confused in its under-
standing of the record, and unconcerned by logical consequences, not that
it is “unbelievable.”
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question even his current title for office if the Attorney
General, an independent executive-branch officer, was
unwilling for any reason to pursue an action for quo
warranto. This, in my judgment, is a significant limitation
upon the JTC’s, and this Court’s, constitutional preroga-
tives that is nowhere found within article 6, § 30(2).
Equally important, such a result would undermine the
very purpose of this constitutional provision, i.e., to foster
public confidence in the integrity of the judiciary.
Additionally, Justice W
EAVER
would apparently extend
her novel quo warranto analysis to judicial misconduct
that alternatively gives rise to a potential felony charge.
By doing this, she would prohibit the JTC from recom-
mending disciplinary action against a judge based on the
underlying actions for such a charge unless there was a
formal felony conviction. This remarkable proposition
would allow judges in this state to commit criminal
behavior for which the JTC would have no authority to
address. Under Justice W
EAVER
’s misapprehension of the
JTC’s constitutional authority, the underlying conduct
forming a felony charge, whether assault, theft, arson, or
fraud, could not then form the basis for a finding of
judicial “misconduct in office,” because it is only “when [a
trial] court process legally determines a judge is guilty of
[a felony]” that the JTC can then “bring a proceeding
for judicial misconduct,” based on the facts necessary
to support that conviction. Ante at 648.
21
Justice
21
The extent to which Justice W
EAVER
would apply her analysis to other
contexts such as when a judge engages in acts that could form the basis
of a misdemeanor conviction, or even a civil penalty, imposed by a trial
court or administrative agency, is unclear. That such circumstances may
not be involved in the instant case does not, of course, make it any less
irresponsible to propose a new constraint upon the JTC and leave open to
question the extent to which this constraint will be carried out to its
logical ends. Almost certainly, if Justice W
EAVER
’s unprecedented under-
standing of the JTC’s authority was to prevail, it would ensure that
judges subject to JTC discipline routinely raise the “Weaver-defense,”
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W
EAVER
’s arguments find absolutely no support in the
law or constitution of this state.
22
In sum, the existence of an action for quo warranto
does not prevent the JTC from assessing respondent’s
misconduct, regardless of whether that conduct hap-
pens to involve the improper exercise of a title to office.
Once that assessment has taken place and a recommen-
dation made, as here, this Court is fully authorized to
consider that recommendation, and I would do so.
III. EXAMINER’S CONDUCT
As previously noted, the JTC’s examiner visited
respondent’s chambers and demanded that he resign
from his position. I concur with the facts in this regard
as set forth by the majority, and agree that, at present,
“the proper forum for the review of the JTC director’s
actions is the Attorney Grievance Commission.” Ante at
650.
I do disagree, however, with the majority’s impli-
cation that the tactics engaged in by the examiner,
i.e., that their conduct fell beyond the scope of the JTC’s authority, at
least until a trial court or administrative body had “in the first instance”
rendered a decision.
For what it is worth, Justice W
EAVER
’s theory also contradicts her own
dissenting opinion in In re Gilbert, 469 Mich 1224, 1234 (2003), cf. note
2 of this opinion, in which she opined that “judicial disciplinary proceed-
ings are neither criminal nor quasi-criminal in nature.” In Gilbert,
Justice W
EAVER
criticized the majority for not imposing a more severe
sanction on Judge Thomas Gilbert for smoking marijuana, id.—an action
for which Judge Gilbert could have been, but was not, criminally
convicted.
22
Also of concern is whether, under Justice W
EAVER
’s theories, the JTC
and this Court would be bound by the factual and legal findings of trial
courts and administrative agencies in cases of judicial misconduct. This
Court in Kapcia conclusively answered this question in the negative, but
this is precisely what Justice W
EAVER
suggests is required of the JTC and
this Court.
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even if they eventually prove to have been wrongful
or inappropriate, have any particular relevance to the
matter now before us. This Court cannot, as a func-
tion of the examiner’s behavior, avoid its responsibil-
ity to address respondent’s misconduct. To do so
would be tantamount to adopting, in the context of
judicial discipline, some variant of the “exclusionary
rule,” which requires “the exclusion of reliable evi-
dence when the constable blunders.” Stone v Powell,
428 US 465, 496; 96 S Ct 3037; 49 L Ed 2d 1067
(1976). Here, there is no claim that the examiner
obtained any evidence in this case by unlawful means.
Moreover, if we were to allow the examiner’s trou-
bling behavior to influence our evaluation of respon-
dent’s misconduct by failing to impose a sanction
based solely on respondent’s misconduct, our decision
would be contrary to MCR 9.200, which states:
An independent and honorable judiciary being indis-
pensable to justice in our society, subchapter 9.200 shall be
construed to preserve the integrity of the judicial system,
to enhance public confidence in that system, and to protect
the public, the courts, and the rights of the judges who are
governed by these rules in the most expeditious manner
that is practicable and fair.
In sum, disregarding a judge’s misconduct out of
disdain for the examiner’s behavior is not a rational
response designed to “preserve the integrity of the
judicial system,” nor does it “enhance public confi-
dence in that system.” Thus, in keeping with this
Court’s responsibility to uphold the integrity of the
judiciary, the Court should determine an appropriate
sanction based solely on respondent’s misconduct,
irrespective of the examiner’s conduct, which re-
mains the subject of administrative consideration at
this time.
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IV. STANDARD OF REVIEW
This Court reviews the JTC’s factual findings and
disciplinary recommendations de novo. Noecker, 472
Mich at 8.
23
“The JTC’s finding of misconduct must be
supported by a preponderance of the evidence.” In re
Haley, 476 Mich 180, 189; 720 NW2d 246 (2006).
However, “[a]lthough we review the JTC’s recommen-
dations de novo, this Court generally will defer to the
JTC’s recommendations when they are adequately sup-
ported.” Id. See also In re Chrzanowski, 465 Mich 468,
488; 636 NW2d 785 (2001); Brown, 461 Mich at 1293.
V. RESPONDENT’S CONDUCT
A. VIOLATING LAW AND CONSTITUTION
The JTC has issued a decision and recommendation
for discipline in this case concluding, among other
things, that respondent moved outside the division
from which he was elected in violation of article 6, § 20
of the constitution and that he was not a registered
elector of the division from which he was elected, as
required by MCL 600.8201. According to the JTC, these
are violations of the law and constitution that also
constitute judicial misconduct sanctionable under Can-
ons 1 and 2 of the Code of Judicial Conduct and article
6, §§ 20 and 30(2) of the constitution.
24
I agree.
Article 6, § 20 of the Michigan Constitution states:
23
“[I]t is the JTC’s, not the master’s, conclusions and recommenda-
tions that are ultimately subject to review by this Court.” Chrzanowski,
465 Mich at 481.
24
Code of Judicial Conduct, Canon 1 states in part:
An independent and honorable judiciary is indispensable to
justice in our society. A judge should participate in establishing,
maintaining, and enforcing, and should personally observe, high
standards of conduct so that the integrity and independence of the
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Whenever a justice or judge removes his domicile be-
yond the limits of the territory from which he was elected
or appointed, he shall have vacated his office.
The “territory from which he was elected” necessarily
means the geographic location from which respondent
received the requisite number of votes to obtain his
judicial office, i.e., the 1st Division of the 63rd District
Court.
25
Additionally, “domicile” is defined as “[t]hat
place where a man has his true, fixed, and permanent
home and principal establishment and to which, when-
ever he is absent, he has the intention of returning.”
Black’s Law Dictionary (5th ed). A domicile is “that
place where a person has voluntarily fixed his abode not
for a mere special or temporary purpose, but with a
present intention of making it his home, either perma-
nently or for an indefinite or unlimited length of time.”
judiciary may be preserved. A judge should always be aware that
the judicial system is for the benefit of the litigant and the public,
not the judiciary.
25
Respondent argues:
The territory from which he was elected is the 63rd District.
This is one district, with two divisions. MCL 600.8130(4). The fact
that it has two divisions does not make it two districts. In fact, the
legislature, in creating divisions of a district court, explicitly
stated, “The provision for election divisions of a judicial district
have no effect on the administration of a judicial district.” MCL
600.8102. [Respondent]’s residence at 201 Honey Creek Drive in
Ada is undeniably within the 63rd District. He has always main-
tained his principal residence in one of the divisions of the 63rd
District.
Contrary to this argument, respondent does not dispute that he was
elected exclusively from votes cast within the 1st Division. Therefore, it
is the 1st Division that constitutes the “territory from which he was
elected,” not the 63rd District. Indeed, as stated by the JTC:
The sincerity of respondent’s proposed broad interpretation of
the provision is called into question by his explanation at the
hearing that he believed he had to be domiciled within the 1st
Division [only] when he was “running” for re-election.
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Henry v Henry, 362 Mich 85, 101-102; 106 NW2d 570
(1960) (citation and quotation marks omitted). “One
cannot be permanently located in more than one place;
one cannot be domiciled in more than 1 place; one
cannot intend to remain for an extended period of time
in more than 1 place.” In re Scheyer’s Estate, 336 Mich
645, 651-652; 59 NW2d 33 (1953). “Generally, the
determination of domicile is a question of fact. However,
where, as here, the underlying facts are not in dispute,
domicile is a question of law for the court.” Fowler v
Auto Club Ins Ass’n, 254 Mich App 362, 364; 656 NW2d
856 (2002).
Further, MCL 600.8201 requires that “a candidate
for and a judge of the district court shall be licensed to
practice law in this state and shall be a registered
elector of the district and election division in which he
seeks to hold office.”
During the master’s hearing, respondent testified to
the following facts regarding his domicile between 2000
and 2008, which the JTC used in rendering its decision.
Respondent stated that from 1984 until 2000 he owned
a house on South Monroe Street, within the 1st Divi-
sion, where he purportedly lived until 1999. In 1998, he
purchased a home on 201 Honey Creek Avenue in Ada
Township, an area outside the 1st Division from which
he was elected. He claimed that he was not domiciled
there until 2005. Respondent testified that the year
after he bought the property at 201 Honey Creek, he
sold the Monroe Property because he “needed the
money,” and then moved to his sister’s house at 260
Oak Street, within the 1st Division, “where I was
basically a tenant, and that was in 2000.” More specifi-
cally, respondent stated,“[W]hen I bought 201 Honey
Creek, that was a lot of money for me, and that’s why I
sold the [Monroe Property] and moved to my sister’s
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house [at 260 Oak Street], who was kind enough not to
charge me any rent[.]” Respondent changed his license
and voter registration to reflect this move. He claimed
that he maintained this living arrangement until 2002,
when he began renting an apartment located on Thir-
teen Mile, which was also in the 1st Division. R espon-
dent again changed both his driver’s license and voting
address to his Thirteen Mile property. However, during
this time, respondent admits that he spent a “signifi-
cant” amount of time at 201 Honey Creek and slept
there “a lot.” In other words, respondent testified that
he sold his primary residence in 1999 so he could fix up
201 Honey Creek and live with his sister at no cost until
2002, when he began living at Thirteen Mile.
In 2002, respondent purchased another property, 109
Honey Creek, and then purchased yet another property
on Belding Road, which is within the 1st Division, and
as to which he testified, “I bought that in June of, I
think 2003, and I didn’t move there until early 2004.
And I lived at [Thirteen Mile] until I moved in, but it
wasn’t when I bought it.”
26
Respondent changed his
voter registration on March 11, 2004, and his driver’s
license on March 23, 2004, to the Belding Road address.
However, he registered his mailing address with the
Secretary of State as being the address of the 1st
Division courthouse. In regard to the period immedi-
ately following respondent’s purchase of 109 Honey
Creek, he testified to the following:
That house [109 Honey Creek] I had to get done because
there was a person that wanted to buy it, and so I was down
26
Respondent testified that his daughter contributed to purchasing the
Belding Road property as an investment but that she never lived there.
Additionally, respondent testified that the property was actually an
“investment for [him] also, but it’s [his] — the place where [he] was
living at the time.”
2009] In re S
ERVAAS
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,J.
there a lot and I worked late into the night, and a number
of times I just went up and slept at 201 [Honey Creek]. If
I didn’t work that late, I went back to the Bostwick Lake,
Belding Road address.
Respondent stated that Belding Road continued to be
his domicile until December, 5 2005, when he moved to
201 Honey Creek, which was further confirmed by his
filing of a homestead exemption for 201 Honey Creek in
2006. However, despite admitting that he was domiciled
at 201 Honey Creek after 2005, respondent testified
that, in 2007, he (a) voted within the 1st Division using
his Belding Road address,
27
(b) applied for a concealed
weapons permit on February 7, 2007, using his Belding
Road address,
28
(c) never changed his voter registration
to 201 Honey Creek,
29
and (d) never changed his driv-
er’s license to the 201 Honey Creek address.
30
He also
admitted knowing that he had to change his voter
registration and driver’s license, and, despite consis-
tently doing so during every move from 2000 to 2005, he
failed to do so once he moved to 201 Honey Creek.
From this testimony, respondent expressly admits to
moving outside the 1st Division to 201 Honey Creek as
of 2005. He also admits that he intended for that
location to be his domicile. Both of these admissions are
reflected in the master’s and the JTC’s findings of fact.
27
The examiner asked respondent: “And [after moving to 201 Honey
Creek] you actually voted using your Belding address while you were
living in Honey Creek; is that right?” Respondent answered: “Yes.”
28
The examiner asked respondent in regard to his February 7, 2007
concealed weapon permit: “And on that application, you list your Belding
address as your primary residence; is that correct?” Respondent an-
swered: “That’s correct.”
29
The examiner asked respondent: “You didn’t change your voter
registration to [201 Honey Creek]; right?” Respondent answered: “No.”
30
The examiner asked respondent: “You didn’t change your driver’s
record or information with the Secretary of State [to 201 Honey Creek]
either, did you?” Respondent answered: “No.”
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These admissions alone are sufficient to demonstrate
that respondent moved outside of “the territory from
which he was elected,” which is a violation of article 6,
§ 20 of the constitution. Similarly, the fact that respon-
dent moved outside of the 1st Division made him
ineligible to be “a registered elector” of that division,
regardless of the fact that respondent improperly voted
in that division after 2005 in violation of MCL 600.8201.
Thus, respondent failed to comply with article 6, § 20 of
the constitution and MCL 600.8201, which is also
violative of Canon 2(B) of the Code of Judicial Con-
duct’s requirement that a judge “observe the law,” and
as a result Canon 1’s requirement that a judge maintain
the “integrity” of the judiciary.” Additionally, respon-
dent’s conduct runs afoul of MCR 9.104:
(A) The following acts or omissions by an attorney,
[
31
]
individually or in concert with another person, are miscon-
duct and grounds for discipline, whether or not occurring
in the course of an attorney-client relationship:
***
(2) conduct that exposes the legal profession or the
courts to obloquy, contempt, censure, or reproach[.]
There can be no question that a judge’s failure to obey
the law, which he has taken an oath to uphold, “exposes
the legal profession [and] the courts to obloquy, con-
tempt, censure, or reproach.”
B. BREACHING FAITH
Beyond acting in dereliction of the law, respondent in
a very fundamental sense has broken the bonds with
31
Because all elected judges within this state must be licensed attor-
neys, the court rules governing attorney conduct apply with equal force
to judges.
2009] In re S
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,J.
the people of his district. By his own acknowledgement,
he has knowingly departed from their political commu-
nity to become part of another political community.
While there may well be some artificiality to these
political communities, and while the economic, social
and cultural circumstances of the 2nd Division may not
be markedly different from those of the 1st Division,
our system of republican government nonetheless is
predicated upon the idea that the “we the people” are
entitled, and are obligated, to assert their control over
the actions of government through the selection of local
representatives. By this process, the people communi-
cate their views concerning the kind of leadership they
desire from their public institutions. Particularly in the
case of the selection of judges—persons who do not
ordinarily make public policy, and who cannot be con-
sidered “representative” officers in the same sense as
persons elected to the legislative and executive
branches of government
32
—there must be some further
32
See, e.g., People ex rel Royce v Goodwin, 22 Mich 496, 499-500 (1871):
When we consider the nature of [judges’] functions, their inde-
pendence of local affairs becomes still more apparent. Judges differ
from all other public servants in having no representative duties. The
judicial department of every civilized government is one of the three
co-ordinate parts of the sovereignty which acts for the state in
expounding the laws and enactments in which the other departments
have acted for the people as legislators and the approvers of legisla-
tion. It represents only the law by which the people have, by their
proper agents, bound themselves. It cannot, therefore, in any of its
duties, be said to serve any county, or circuit, or district. Its services
are all performed on behalf of the state, as the sovereignty from
which all the law emanates .... [T]he only object of having local
courts is to bring justice home to the people, but not to have cases
decided as the desire of the people might shape the decision.
That is, judges are presumed to speak, not on behalf of their constituen-
cies, or on behalf of particular concerns within their constituencies, but
only to represent the interests of the law, to speak for the rule of law. This
is one reason why the Framers of the United States Constitution did not
see the need to provide for the popular election of judges as they did for
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rationale for why all judges of our state, with the
exception of Supreme Court justices, are elected by
“districts” or “circuits.” See Const 1963, art 6, §§ 8, 11,
and 16.
33
At least part of this explanation must certainly be
that the people are entitled to select as their judges
persons whose sense of values, whose judgment, whose
life experiences, are in some sense a function of their
roots within that community, persons who have shared
in some tangible way the day-to-day trials and tribula-
tions, and influences, of citizens within that community.
Although the shared experiences of persons within the
1st and 2nd divisions may not be as dissimilar as those
between more geographically far-flung communities, it
is nevertheless an outgrowth of our respect for the
integrity of local government, and specifically the peo-
ple’s right and obligation to engage in local self-
government, that we must take seriously the matter of
a public official who has breached the faith with his
community that is required by our constitution by
departing from it.
members of Congress and the President. The people of Michigan have
made a different judgment in their constitution.
33
In addition to the constitutional provisions applicable to this analy-
sis, the Legislature has enacted MCL 168.467f(1), which makes clear that
district court judges must also be elected from their respective divisions
or districts. MCL 168.467f(1) states:
Except as otherwise provided in this section, judges of the
district court shall be elected in each judicial district and election
division of a judicial district at the general election to fill vacancies
in office[.]
Thus, regardless of the rationale for why the people have chosen to
require that district court judges be elected from the district and division
in which they will serve, the people have unmistakably decided that such
a requirement should exist, and that decision must be respected by the
JTC and this Court.
2009] In re S
ERVAAS
685
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ARKMAN
,J.
In sum, respondent’s acknowledgement that he
moved outside of the 1st Division after 2005 effectively
acknowledged both a violation of the law and constitu-
tion, and a breach of faith with the people of his
community, both of which threaten “public confidence
in the . . . integrity of the judiciary,” Canon 2(B), and
risk “expos[ing] the courts to obloquy, contempt, cen-
sure, or reproach,” MCR 9.104(A)(2). Thus, I agree with
the JTC that respondent’s vacation of his electoral
district constitutes judicial misconduct and warrants an
imposition of sanctions.
C. FALSE TESTIMONY
In addition to the period after 2005, during which
respondent acknowledged moving from, and living out-
side, the 1st Division, the JTC determined, on the basis
of telephone logs produced during the master’s hearing,
that respondent had, in fact, moved outside of his
electoral district in 2000, rather than 2005. Specifically,
these logs indicated that from 2000 to 2004, respondent
provided his 201 Honey Creek telephone number as his
exclusive after-hours contact for where he could be
reached when police officers needed him to make “prob-
able cause” determinations and issue warrants. Be-
cause of a medical situation, respondent was not re-
quired to be on call from June 2004 until sometime in
2005 and, thus, he did not provide an after-hours
contact number during that period. Once respondent
resumed this responsibility in 2005, he briefly provided
the telephone number for the Belding Road property in
the 1st Division. However, calls to the Belding Road
address were forwarded to 201 Honey Creek.
34
From the
34
It appears that respondent provided his Belding R oad telephone
number in response to a visit from the State Court Administrative
Office. During this visit, respondent was informed that he was in
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beginning of 2006 until June of that year, he again
provided only his 201 Honey Creek telephone number,
and from June 2006 until the beginning of 2007, re-
spondent provided his Belding Road telephone number
with calls again forwarded to 201 Honey Creek. In 2007,
respondent resumed providing only his 201 Honey
Creek telephone number.
From these logs, the JTC concluded that respon-
dent’s consistent listing of 201 Honey Creek as his
contact information from 2000 to 2008 showed that he,
in fact, lived at 201 Honey Creek beginning in 2000
rather than 2005. On that basis, the JTC concluded that
respondent’s assertion that he had not moved outside
his district before 2005 evidenced a “lack of candor and
honesty,” which amounted to “false testimony” regard-
ing his residence during this period.
Although “this Court will generally defer to the
JTC’s recommendations when they are adequately sup-
ported,” In re Haley, 476 Mich at 189, the JTC’s use of
these telephone logs is not without its difficulties. Of
particular concern is the examiner’s failure to produce
these logs in accordance with the master’s discovery
order. More specifically, the examiner did not make
respondent aware that he was in possession of, and
intended to use, these logs until respondent was actu-
ally testifying during the master’s hearing. Once the
examiner began questioning respondent about these
documents, respondent’s counsel objected that the ex-
aminer had not produced these logs and that the master
should not allow them to be used for substantive
violation of his responsibility to remain domiciled within the division
from which he was elected. It was immediately after this visit that
respondent temporarily changed his after-hours contact information to
the Belding Road property, with calls forwarded to his home at 201 Honey
Creek.
2009] In re S
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,J.
purposes. Agreeing with respondent, the master ruled
that these documents could only be used to impeach
respondent.
However, during these hearings, the examiner called
Donna Gillson—an employee of the 63rd District Court
and an acquaintance of respondent—to testify, and, on
the basis of her personal knowledge, she independently
established that respondent had provided her with all
the numbers contained in the telephone logs. She also
testified that the only reason respondent changed his
after-hours telephone contact information to the Beld-
ing Road address in 2006 was because the State Court
Administrative Office (SCAO) had threatened to notify
the JTC that he was living outside of the 1st Division.
35
35
It is also worth noting that, although respondent now admits that he
moved outside the 1st Division after 2005, it seems likely that he only
made this admission based on filing a homestead exemption form in 2006
that listed 201 Honey Creek as his primary residence as of 2005, which
made it impossible for him to continue denying that this was his home
once he discovered that the JTC was aware of this filing. More specifi-
cally, when respondent was confronted by SCAO officials in 2006 about
living outside his district, he initially denied living at 201 Honey Creek.
When these officials asserted he was not living inside his district,
respondent replied, “I am too.” Shortly thereafter, respondent began
having his calls directed to the Belding Road property with calls for-
warded to 201 Honey Creek. He also voted in a countywide election in
2007 using his Belding Road address. The inference that respondent
originally attempted to continue misleading SCAO about where he lived
after 2005 is further supported by the fact that on February 1, 2007,
respondent filled out an application to renew his concealed weapon
permit and, in that application, also listed the Belding Road property as
his actual residence. The majority, rather than viewing this as additional
evidence that respondent was engaging in “a deliberate attempt to
deceive officials about his change of address,” ante at 652 n 30, claims
that “the failure to change his address was simply an oversight: respon-
dent did not think to read the form and make any corrections, as he
admitted that he did not read the form . . . .” The majority’s willingness
to ignore this “oversight” is especially troubling in view of the fact that
the form, which respondent was required to read during his testimony,
specifically stated, “I understand that this application is executed under
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Ms. Gillson then stated that respondent had his calls
forwarded from the Belding Road property to 201
Honey Creek. Significantly, she explained that the rea-
son respondent changed his telephone number back to
201 Honey Creek in 2006 was because his call-
forwarding made it impossible for him to receive faxes
at his home at 201 Honey Creek. This testimony also
lends credence to the JTC’s finding that respondent
provided false testimony because the examiner asked
respondent if he “ever had [his] calls forwarded from
oath and swear or affirm under penalty of law the above answers are true
and correct to the best of my knowledge. I understand that intentionally
making a false statement on the application is a felony punishable by
imprisonment of not more than four years or a fine of not more than
$2,500 or both.” Given that respondent’s signature verifies that he
signed this form “under oath” and subject to “penalty of law,” the
majority’s attempt to make light of this falsehood simply because “[a]ll he
had to do was sign the permit,” ante at 652 n 30, is entirely unpersuasive.
The majority’s minimization of respondent’s responsibility for read-
ing a sworn document that he signed seems inconsistent with Rowady v
K Mart Corp, 170 Mich App 54, 60; 428 NW2d 22 (1988), in which
then-Judge W
EAVER
joined an opinion stating, “Nor is plaintiff’s failure to
read the entire agreement before signing it relevant. It is well established
that a person cannot avoid a written contract on the ground that he did not
attend to its terms, did not read it, supposed it was different in its terms,
or that he believed it to be a matter of mere form.” (Emphasis added.) This
basic proposition has been settled in our caselaw for over a century. See,
e.g., Rory v Continental Ins Co, 473 Mich 457, 489 n 82; 703 NW2d 23
(2005). For reasons she does not explain, Justice W
EAVER
requires less
personal responsibility of an experienced judge to read, understand, and
take seriously a legal document to which he swears under oath than she
requires of all other citizens of this state with regard to their own written
contracts.
That respondent provided a false address two years after he
allegedly moved to 201 Honey Creek, strongly suggests that respon-
dent would have continued with his “deliberate effort to deceive
officials” about his true address. Yet, rather than sanctioning respon-
dent for his conduct, the majority repeatedly makes excuses on his
behalf. I look forward to the majority being similarly empathetic when
criminal and civil appellants who are not judges raise the “all I had to
do was sign the permit” defense.
2009] In re S
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one home address to another[.]” In contrast to Ms.
Gillson’s testimony, respondent replied, “No, not that I
know of.”
The following day, respondent was again called to
testify. During this testimony, respondent stated that he
had reviewed the logs. The examiner then went through
each number contained in the logs and respondent
verified that all the telephone numbers contained
therein belonged to him during the listed times. Fur-
ther, after the JTC rendered its decision, which was
based substantially on the logs, respondent challenged
the use of those documents in this Court. However, in
doing so, respondent made the following statement in
his brief:
Assuming, arguendo, that the duty logs presented were
accurate copies of the ones that were created in the
ordinary course of business, it should come as no surprise
that [respondent] listed a phone number at 201 Honey
Creek a place where he could be found when not on the
bench. As [respondent] testified, he spent a significant
amount of his free time renovating two homes on Honey
Creek.
Thus, although respondent’s challenge to the JTC’s use
of the telephone logs is framed in “arguendo” terms, he
notably does not contest the validity of these logs, and
indeed admits that it should “come as no surprise” that
he listed the 201 Honey Creek number for where he
could be contacted after hours.
Because Ms. Gillson testified from her own personal
knowledge about the after-hours telephone numbers
that respondent had provided, and because respondent
later verified all these numbers, respondent can hardly
question in good faith the information in the logs that
contributed to the JTC’s conclusion that respondent
had provided false testimony when claiming that he did
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not move outside of his district before 2005. Thus,
despite the examiner’s failure to properly produce the
telephone logs before the hearing, the information
contained in those records nonetheless affords an alto-
gether proper basis from which the JTC could conclude
that respondent’s testimony was not truthful.
Further, as the examiner initially stated, the logs
were intended to impeach respondent in regard to his
testimony that he had not moved outside the 1st
division before 2005. Although respondent’s relocation
constituted part of the substantive claim levied against
him during the disciplinary proceeding, this same infor-
mation is also relevant to ascertaining his credibility
and, in service of the latter purpose, suggests strongly
that respondent was not being truthful, the primary
purpose for which the logs were employed. Accordingly,
the JTC properly evaluated these documents in deter-
mining that respondent had provided false testimony.
The JTC’s conclusion that respondent moved outside
the 1st division before 2005 is further supported by Ms.
Gillson’s testimony that she delivered campaign mate-
rials to 201 Honey Creek, where respondent was appar-
ently planning his 2002 reelection campaign.
36
Ms.
Gillson stated that she had dropped respondent off at
201 Honey Creek on a number of occasions before 2005,
36
Respondent also admitted that before 2002 he “intended to live [at
201 Honey Creek]. And, frankly, that’s why I was working on that. I
wasn’t working on that to resell it.” Although, this statement could be
viewed as evidencing respondent’s intent to live at 201 Honey Creek at
some later date, such an interpretation is substantially undermined by
the “significant” amount of time he spent there from 2000 until 2008. It
would be disingenuous for respondent, despite admitting to being present
at 201 Honey Creek on so frequent a basis, while simultaneously
providing an exclusive after-hours contact number at that same address
during this time, to now claim that his intention to be domiciled there
was directed toward some future date.
2009] In re S
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,J.
and that she thought it was “fairly well known to
everyone where he lives.”
37
Because “one cannot be
domiciled in more than 1 place, one cannot intend to
remain for an extended period of time in more than 1
place,” Scheyer’s Estate, 336 Mich at 651-652, respon-
dent’s actions, especially in light of the information he
provided to the district court concerning his exclusive
after-hours contact number at 201 Honey Creek from
2000 to 2004, indicate that for an “extended period of
time” (2000-2004), he intended to remain at 201 Honey
Creek. Thus, respondent was domiciled outside of the
1st division before 2005, and his testimony to the
contrary was not truthful.
Given this evidence, both circumstantial and direct,
it is puzzling how the majority, after “[h]aving reviewed
the entire record closely,” can now assert that it does
“not conclude that respondent lied under oath,” and
that it “agree[s] with respondent’s counsel that this is
not a case of arrogance,” but one of confusion.
38
Ante at
652-654. Specifically, the majority asserts that respon-
dent once more was “confused and could not remem-
ber a series of different telephone numbers (un-
37
During a 2004 incident in which police were summoned to 201 Honey
Creek, the officers observed that respondent’s pet cat was present at the
property.
38
To the extent that Justice W
EAVER
believes respondent was “con-
fused” about what the law required of him, i.e., respondent “thought he
could live [outside his] division as long as he was not running for
reelection,” ante at 653, this argument is belied by the record. First, there
is no statute or caselaw that even hints at such a proposition, and neither
Justice W
EAVER
nor respondent has called anything relevant in this
regard to the attention of this Court. Second, and more importantly,
respondent’s prolonged efforts to hide his living arrangement pre- and
post-2005 undermine the credibility of any claim that respondent genu-
inely believed he could live outside his district so long as he was not
currently “running” for reelection. If respondent genuinely believed this,
there would have been little need to engage in such an extensive effort to
avoid having his residency detected.
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til he later refreshed his recollection), specific dates and
times, and events that occurred nearly 10 years before
he testified.” Ante at 653-654. By suggesting that re-
spondent was “confused” when the examiner initially
confronted him with the telephone logs, the majority
leaves unanswered why this initial confusion had any
impact on respondent’s second day of testimony, i.e., the
day after he was presented with the telephone logs,
especially after respondent admitted that he had re-
viewed those logs by that time and had confirmed that
the numbers contained therein belonged to him. In-
deed, the majority seems to recognize that respondent
was not confused regarding the telephone logs at that
point by stating that he was only confused “until he
later refreshed his recollection . . . .” Ante at 653. Nor
does the majority so much as attempt to explain how
Ms. Gillson’s testimony, which directly refutes respon-
dent’s claim that he did not live outside of his division
prior to 2005, bears any relation to respondent’s alleged
“confusion” concerning pertinent facts as to the tele-
phone logs. Specifically, the majority overlooks com-
pletely Ms. Gillson’s testimony that respondent began
forwarding his calls to 201 Honey Creek in the first
place as part of a deliberate effort to avoid detection by
the JTC.
Additionally, by stating that “respondent did not try
to deny the fact that he was living in the 2nd Division at
that time, because he thought he could live in that
division as long as he was not running for reelection,”
ante at 653, the majority implies that respondent was
also confused as to whether he could live outside his
district. By suggesting that respondent was “confused”
in this regard, the majority misunderstands what is at
issue. Respondent’s false testimony pertains to his
assertions that he did not live outside the district from
which he was elected before 2005 when, in fact,
2009] In re S
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,J.
the evidence shows that he did. That is, respondent’s
lack of candor has little to do with what the law did or
did not require of him.
Perhaps most troubling is the majority’s willingness to
overlook respondent’s lack of candor as being due to his
alleged “confusion,” when the very nature of his judicial
responsibilities include properly ascertaining facts, ensur-
ing accuracy in testimony, and correcting inaccuracies
that may arise during fact-finding proceedings. Signifi-
cantly, respondent had the opportunity to do exactly that
when he appealed to this Court, but, instead, he stated
that “it should come as no surprise that [he] listed a
telephone number at 201 Honey Creek, a place where he
could be found when not on the bench,” since “he spent a
significant amount of his free time” there. Thus, rather
than supporting the majority’s assertion that respondent
was confused, his own statements to this Court suggest
strongly to the contrary that he was not confused. Indeed,
it is unbelievable that a judge of respondent’s experience
would allow any initial confusion that may have caused
the JTC to conclude that he lied under oath to persist and
to go uncorrected in his appeal to this Court. Finally,
regardless of the majority’s claim that respondent was
“confused” regarding telephone numbers, dates and
times, and prior events, ante at 653-654, Ms. Gillson was
not, and the substance of her testimony was clear, power-
ful, and damaging to respondent’s credibility.
Therefore, apparently on the sole grounds of respon-
dent’s alleged “confusion,” and with almost no explana-
tion of how it reaches its result, the majority summarily
concludes that respondent has neither violated the Michi-
gan Constitution nor provided false testimony under oath.
In this process, the majority gives no credence to the
following evidence, and thereby utters not a hint of
disapproval, and avoids any sanction, for behavior that
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calls into question the fundamental integrity of our judi-
ciary: (a) respondent’s nearly 10 years of continuously
spending “significant” periods of his after-hours time at
201 Honey Creek; (b) respondent’s admission that before
2002 he “intended to live at 201 Honey Creek,” which is
why he was “working on [the property]”; (c) Ms. Gillson’s
unequivocal statement that it is “fairly well known to
everyone where [respondent] lived”; (d) the fact that
respondent’s pet cat was living at 201 Honey Creek before
2005, as noted in a police report stemming from a 2004
incident; (e) the telephone logs directing police officers to
reach respondent at 201 Honey Creek as his sole after-
hours contact before 2005; (f) Ms. Gillson’s testimony
verifying the information in the telephone logs that re-
spondent’s sole after-hours contact before 2005 was 201
Honey Creek; (g) the fact that respondent actually ran his
2002 reelection campaign from 201 Honey Creek; (h) Ms.
Gillson’s testimony that, shortly after respondent was
confronted by SCAO and accused of vacating his office by
living outside his district, he purposefully misled SCAO
regarding his true residency by manipulating his tele-
phone lines through call forwarding; (i) the telephone logs
that support Ms. Gillson’s testimony that respondent
attempted to avoid having his true residence being de-
tected by forwarding his telephone calls; (j) respondent’s
untruthful answer in response to whether these telephone
logs were ever forwarded from his home in the 1st division
to 201 Honey Creek of “[n]o, not that I know of,” as if he
were unaware of how his own telephone calls were being
directed; (k) respondent’s initial false statement that “I
am too [living in the proper district]” in 2006, despite
afterwards admitting that he lived outside his district as of
2005 and thereafter when he was confronted by two
SCAO officials who alleged that he had moved outside of
his district; (l) respondent’s false address that was pro-
vided when applying for a gun permit that he stated was
2009] In re S
ERVAAS
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true “under oath” and “under penalty of law;” and (m) the
master’s finding, after personally taking respondent’s
testimony, that he was “less than truthful” in this testi-
mony, and the JTC’s unanimous conclusion that respon-
dent was “lacking in candor” in this same testimony.
In sum, because respondent’s testimony and actions
demonstrate that he was domiciled at 201 Honey Creek
before 2005, I agree with the JTC that respondent was
not being truthful when giving his sworn testimony.
Thus, respondent’s constitutional and statutory viola-
tions were of longer duration than he admitted—
effectively constituting a “pattern and practice” of
misconduct—which necessarily means, as the JTC con-
cluded, that he showed “a lack of candor and honesty,”
which amounted to providing “false testimony” before
the master. In addition to vacating his electoral district
before and after 2005, this lack of candor independently
justifies the imposition of sanctions.
D. OTHER MISCONDUCT
The remaining allegation of judicial misconduct con-
cerns respondent’s inappropriate conduct directed to-
ward female court employees. The JTC found that
respondent engaged in three distinct acts of miscon-
duct. In the first instance, he drew female breasts on a
note that was attached to a court file. The drawing was
made after a female clerk commented on the revealing
dress of a woman who appeared in court. The second
event concerned the drawing of a penis on a note that
was attached to a court file. The third instance occurred
during a retirement party for an employee at the 2nd
Division courthouse. While at the party, respondent
commented on a university sweatshirt worn by a female
clerk employed in the 2nd Division. Respondent stated
that the woman had “an awfully small chest” for the
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college indicated on the sweatshirt, and “should have
gone to a smaller school like Alma,” which would have
fit her “small chest better.”
Respondent’s counsel acknowledged that respon-
dent’s conduct was “inappropriate,” but contended that
it was spontaneous and represented “isolated” inci-
dents from respondent’s 36-year career. I agree with
counsel, and believe that respondent’s conduct war-
rants, at most, a public censure, consistent with the
recommendations of the JTC, and the conclusions of the
majority.
VI. BROWN FACTORS
In In re Haley, 476 Mich at 195, this Court stated:
When determining the appropriate sanction, this Court
seeks not to punish the judge, but to maintain the integrity
of the judicial process and protect the citizenry from
corruption and abuse.
Based on respondent’s conduct, the JTC has recom-
mended that respondent be removed from office, a
recommendation to which this Court will ordinarily
defer if the JTC has “adequately articulate[d] the bases
for its findings and demonstrate[d] there is a reasonable
relationship between such findings and the recom-
mended discipline.” Brown, 461 Mich at 1292. I believe
the JTC’s findings and recommendations are supported
by the record, and agree that respondent’s misconduct
warrants removal from office. This is confirmed by my
review of the Brown factors, see Brown, 461 Mich at
1292-1293, as follows:
39
39
The JTC stated that “[w]hile [its] conclusion is based on the totality
of the circumstances, [it is] primarily motivated by the conduct alleged in
Count I [moving outside the division from which he was elected] of the
Complaint and by Respondent’s lack of candor and honesty with the
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(1) Misconduct that is part of a pattern or practice is
more serious than an isolated instance of misconduct.
The JTC found that this factor “weighs heavily in favor
of a severe sanction,” because respondent had engaged
in “a long pattern of deceit” to hide that he was living
outside the 1st Division from 2000 to 2008. I am in
agreement with this finding. Respondent moved outside
his district in 2000 and continually changed his driver’s
license and voter’s registration to other addresses
within the 1st Division, and engaged in other actions
that served no purpose other than to prevent detection.
Further, during a visit from SCAO, respondent was
accused of not living within the division from which he
was elected. In response, he falsely stated, “I am too.”
Respondent then changed his telephone number on two
separate occasions to his Belding Road property, with
calls forwarded to 201 Honey Creek, again to prevent
his relocation outside his electoral district from coming
to light. It was only after respondent was confronted
with a homestead exemption form, which clearly
showed that he was living at 201 Honey Creek after
2005, that he finally admitted he was living outside his
division after 2005. These actions demonstrate a pat-
tern and practice of conduct designed to conceal. I
believe that the JTC correctly concluded that this factor
weighs in favor of a more severe sanction. I also
conclude that respondent’s inappropriate drawings and
comments, which consisted of three incidents over a
36-year period, cannot be viewed as a part of the same
pattern or practice. Therefore, this conduct does not
increase the severity of the first Brown factor.
master and the Commission.” Accordingly, the JTC did not analyze the
misconduct set forth in part V(D) in the context of the Brown factors.
Instead, it stated that “standing alone” such conduct would only “merit
a public censure.”
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(2) Misconduct on the bench is usually more serious
than the same misconduct off the bench.
The JTC correctly found that respondent’s conduct
occurred off the bench, which suggests that a less severe
sanction is appropriate.
(3) Misconduct that is prejudicial to the actual admin-
istration of justice is more serious than misconduct that is
prejudicial only to the appearance of propriety.
The JTC concluded that respondent’s conduct, which
calls into question his title to office before 2008, jeop-
ardized every judgment that he has imposed from the
bench. This is so, it argues, because, without lawful
authority to render judgments, those judgments are at
risk of being invalidated.
40
I respectfully disagree with
this legal conclusion for the reasons stated in People v
Russell, 347 Mich 193, 196-197; 79 NW2d 603, 605
(1956). I nonetheless agree with the JTC that this factor
militates in favor of a more severe sanction. Although
40
Although this argument is not at all frivolous, I believe this Court
has generally addressed, and rejected, a similar argument in People v
Russell, 347 Mich 193, 196-197; 79 NW2d 603, 605 (1956):
We are not inclined to stop and examine the question of
whether such magistrate had authority to hold the office he in fact
occupied and to which he had color of authority, but content
ourselves with applying the rule that if the magistrate was a de
facto officer his act in this public matter cannot be attacked in this
proceeding nor his title to the office be here passed upon. Upon the
high ground of public policy and to prevent a failure of public
justice, we follow the salutary rule that while one is in public office,
exercising the authority thereof under color of law, we cannot,
except in a direct proceeding to test his right to the office, pass
upon the question here raised, and besides it would avail defen-
dant nothing because there is no difference between the acts of de
facto and de jure officers, so far as the public interests are
concerned. The point is ruled adversely to defendant in Gildemeis-
ter v Lindsay, 212 Mich 299; 180 NW 633 [(1920)].... Even
though the law creating a judicial office be declared void the acts of
an official thereunder will be upheld as the acts of a de facto officer.
[Citations and quotation marks omitted.]
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respondent’s decisions may remain valid and binding
legal decisions, I do believe that the propriety of these
decisions raises legitimate concerns. In particular, I
believe that the losing parties in these decisions—who
above all participants in the legal process must be
genuinely persuaded of the legitimacy and integrity of
this process—may understandably feel embittered or
resentful concerning the decisions in their own cases.
(4) Misconduct that does not implicate the actual ad-
ministration of justice, or its appearance of impropriety, is
less serious than misconduct that does.
For the reasons set forth in the previous factor, I believe
that respondent’s conduct, at least in retrospect, did
create an appearance of impropriety that weighs in
favor of a more severe sanction. Because it views this
factor as largely duplicative of the considerations set
out in the previous factor, the JTC concludes, and I
agree, that this factor does not assist significantly in
determining an appropriate sanction.
(5) Misconduct that occurs spontaneously is less serious
than misconduct that is premeditated or deliberated.
Although I acknowledge that respondent’s initial false
statements in response to the unannounced visit from
SCAO officials were made spontaneously, his conduct
thereafter, including his continuing efforts to keep his
actual residence prior to 2005 from being discovered,
demonstrates that he engaged in a prolonged effort to
mislead SCAO, the master, the JTC, and this Court
about his living arrangements. Therefore, I agree with
the JTC’s conclusion that respondent’s actions to avoid
detection were deliberate and ongoing, and warrant the
imposition of a more severe sanction.
(6) Misconduct that undermines the ability of the justice
system to discover the truth of what occurred in a legal
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controversy, or to reach the most just result in such a case,
is more serious than misconduct that merely delays such
discovery.
The JTC concluded that respondent’s lack of authority
to hold office impaired the judicial system’s ability
reach a just result. I respectfully disagree with the JTC
with regard to this factor and do not believe that
respondent’s conduct undermined the ability of the
justice system to discover the truth in legal disputes
coming before this Court. Indeed, I do not believe his
conduct affected the substantive determination of any
case or controversy, assuming, as I do, that respondent
continued during the period in controversy to act as a
responsible judicial decision maker as his record sug-
gests he has done for the past 36 years. That his conduct
may have undermined the ability of the public, and the
administrative systems of this Court, to identify his
misconduct in moving his domicile is a factor that is
more appropriately taken into account in the first and
fifth factors.
(7) Misconduct that involves the unequal application of
justice on the basis of such considerations as race, color,
ethnic background, gender, or religion are more serious
than breaches of justice that do not disparage the integrity
of the system on the basis of a class of citizenship.
As concluded by the JTC, this factor does not apply to
respondent’s conduct, and thus suggests that a more
severe sanction should not be imposed.
VII. SANCTIONS
This Court having promulgated the Brown factors, and
the JTC having evaluated them in this case, “proper
deference” is now required on our part. Noecker, 472
Mich at 20 (2005) (M
ARKMAN
, J., concurring). Of
foremost significance in determining an appropriate
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sanction for respondent’s particular misconduct are the
first and fifth factors. Because respondent engaged in a
prolonged and deliberate effort to mislead SCAO, the
master, the JTC, and this Court, as described in this
opinion, including and especially testifying falsely un-
der oath, I believe the JTC has reasonably concluded
that respondent should be removed from office.
Although respondent’s 36 years of honorable service
on the bench, and his excellent reputation, as evidenced
both by statements contained within the record and by
his reelection in 2008 after the people of his judicial
district had been made at least partially aware of the
circumstances of the JTC investigation, constitute sub-
stantial factors in respondent’s favor in determining a
proportionate sanction, in the final analysis these fac-
tors do not, in my judgment, outweigh his serious
misconduct in this case. See also Noecker, supra.As
Justice Y
OUNG
offered in his dissent, “ ‘[s]ome miscon-
duct, such as lying under oath, goes to the very core of
judicial duty[.]’ ” Post at 717 (citation omitted). So too,
I believe, does respondent’s conduct in knowingly va-
cating his district “go to the very core of the represen-
tative duty” in our system of self-government. Accord-
ingly, I agree with Justice Y
OUNG
’s dissent in this
regard, as well as with the JTC’s unanimous recom-
mendation, that respondent be removed from office.
VIII. CONCLUSION
Pursuant to the JTC’s unanimous recommendation, I
believe that respondent’s misconduct in this case war-
rants that he be removed from office. In moving outside
the district from which he was elected, respondent vio-
lated the law and constitution, he violated the fundamen-
tal bond with the people of his district established by our
system of republican self-government, and he testified
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falsely with regard to these actions. For the reasons set
forth in this opinion, I would hold that respondent should
now be removed from office.
C
ORRIGAN
, J., concurred with M
ARKMAN
,J.
C
ORRIGAN
,J.(dissenting). I join Justice M
ARKMAN
’s
dissenting opinion in all respects. I also join parts A and
B of Justice Y
OUNG
’s dissenting opinion, including the
discussion of respondent’s untruthful testimony and
the conclusion that removal from office is the appropri-
ate sanction for respondent’s lying under oath.
I write separately only to observe that respondent
advances a far more compelling argument for a due
process violation than I have seen in any prior Judicial
T enure Commission (JTC) case. The JTC executive direc-
tor engaged in unnecessarily harsh tactics when he con-
fronted respondent by surprise and attempted to obtain
his resignation by 9:00 a.m. the next day. Although the
executive director purported to speak for the JTC during
his meeting with respondent, the record does not establish
that the JTC approved all of the executive director’s
tactics. Moreover, an impartial master appointed by this
Court conducted a hearing and found the facts in this
matter, the JTC’s decision is merely a recommendation to
this Court, and the ultimate disciplinary decision is ren-
dered by this Court after a de novo review. Thus, I
conclude that respondent has not demonstrated an intol-
erably high risk of unfairness that is required to establish
a due process violation.
In Withrow v Larkin, 421 US 35, 47; 95 S Ct 1456; 43
L Ed 2d 712 (1975), the United States Supreme Court
held that the combination of investigative and adjudica-
tive functions in a single entity does not necessarily violate
due process:
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The contention that the combination of investigative
and adjudicative functions necessarily creates an unconsti-
tutional risk of bias in administrative adjudication has a
much more difficult burden of persuasion to carry. It must
overcome a presumption of honesty and integrity in those
serving as adjudicators; and it must convince that, under a
realistic appraisal of psychological tendencies and human
weakness, conferring investigative and adjudicative powers
on the same individuals poses such a risk of actual bias or
prejudgment that the practice must be forbidden if the
guarantee of due process is to be adequately implemented.
The Supreme Court explained that it is “very typical for
the members of administrative agencies to receive the
results of investigations, to approve the filing of charges
or formal complaints instituting enforcement proceed-
ings, and then to participate in the ensuing hearings.
This mode of procedure does not violate the Adminis-
trate Procedure Act, and it does not violate due process
of law.” Id. at 56. Although the combination of investi-
gative and adjudicative functions does not by itself
establish a due process violation, a court may nonethe-
less determine “from the special facts and circum-
stances present in the case before it that the risk of
unfairness is intolerably high.” Id.at58.
In In re Del Rio, 400 Mich 665; 256 NW2d 727 (1977),
this Court followed Withrow in holding that the combi-
nation of investigative, adjudicative, and disciplinary
roles of the JTC did not render it incapable of ensuring
due process. This Court emphasized that the JTC’s role
is limited to submitting its recommendations to this
Court, and that this Court alone decides what, if any,
disciplinary action should be taken.
This Court has made a conscious effort to segregate
within the Commission the investigative and adjudicative
functions. We specifically require under GCR 1963, 932.10,
that an independent master be appointed by this Court to
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preside over the adjudicative process once the Commission
files a formal complaint. It is this master who also makes
the findings of fact and conclusions of law upon which the
Commission makes its recommendation and this Court
ultimately bases its decision. Therefore, this Court, like the
United States Supreme Court in Withrow, supra, 58, does
not believe that the combination of the investigative and
adjudicative roles in the Judicial Tenure Commission cre-
ates even a risk that due process guarantees could be
violated. [Id. at 691.]
In In re Chrzanowski, 465 Mich 468, 486-487; 636
NW2d 758 (2001), we followed Withrow, Del Rio, and
other Michigan authorities to hold that the JTC’s
procedures afforded sufficient due process protections,
and we found no special facts or circumstances to
suggest an intolerably high risk of unfairness:
As to the procedures, first, pursuant to MCR
9.207(B)(3), the JTC conducted a preliminary investigation
to determine whether respondent’s alleged conduct war-
ranted further action. Second, after determining that suf-
ficient evidence of misconduct existed, the JTC filed a
formal complaint pursuant to MCR 9.208. Third, a master
was appointed, notice was given, and a hearing was then
afforded respondent under MCR 9.210(A) and MCR 9.211,
with the JTC’s executive director serving as prosecutor-
examiner under MCR 9.201(6)....Finally, the JTC’s con-
clusion that Judge Chrzanowski should be disciplined was
ultimately just a recommendation to this Court that we are
charged to review de novo pursuant to deciding what
discipline, if any, is appropriate. As in Withrow, the JTC’s
investigative and adjudicative procedures are functionally
separate; additionally, as distinct from Withrow, in which
the investigation and the decision were undertaken by the
same Medical Examining Board, here the master, the
examiner, and the JTC panel are separate entities. If the
board in Withrow did not violate due process rights by
investigating, and then adjudicating claims, it can hardly
be argued that the JTC’s procedures violated due process.
Further, a majority of the members of the JTC are judges,
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,J.
and all the members who ultimately recommend discipline
are assumed to be fair and impartial. We conclude then that
there was no actual bias in the JTC’s decision. It had
authority to review the master’s findings de novo, and
reasonably determined, by a preponderance of the evi-
dence, that respondent had in fact made false statements.
We find these procedures adequately separated the JTC’s
investigative and adjudicative functions.
On the basis of these authorities, I do not find a due
process violation in this case. The JTC followed the very
same procedures that we concluded in Del Rio and
Chrzanowski were sufficient to ensure due process.
That is, a master was appointed to find the facts that
formed the basis for the JTC’s decision, the JTC’s
decision was only a recommendation to this Court, and
this Court bears the ultimate responsibility on its de
novo review to decide what, if any, discipline is war-
ranted.
Nonetheless, a close question is presented regarding
whether special facts and circumstances created an
intolerably high risk of unfairness. The JTC’s executive
director confronted respondent without warning in his
chambers, accompanied by an armed police escort who
surreptitiously recorded the meeting. The executive
director provided respondent with documents alleging
misconduct and indicated that he would obtain respon-
dent’s interim suspension if he did not resign by 9:00
a.m. the next day. The executive director also presented
a resignation letter that had already been prepared on
respondent’s own office stationery. The executive direc-
tor represented that he was speaking on behalf of the
JTC, stating:
The Commission is offering you this opportunity to
resolve this matter as quickly as possible and not bring any
shame, proceedings, accusations of perjury against you.
You can resign immediately. And immediately means im-
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mediately. I have a letter right here you can sign. The
Commission has said that I can give you until tomorrow
morning. I prefer to take the letter with me right now.
When respondent stated that he would like to talk to
someone “who knows this area much better that [sic] I
do,” the executive director responded, “Yeah. So here’s
a letter already prepared for you. If I have that letter
faxed to me — my fax number is on that card that I just
gave to you. If I have that letter faxed to my office by 9
a.m., and I mean by 9 a.m.”
Respondent stated that he could not make a decision
by then, to which the executive director replied:
Then I’ll be filing the petition for interim suspension
tomorrow and you will be suspended in a matter of days.
And a formal complaint will issue with this. So, this will
all ....You’re up forelection this year. So, this is all
going to become public no later than March. You’ll be off
the bench before then.
***
You have until tomorrow morning at 9. And I haven’t
even touched—Ihaven’t even touched the sexual harass-
ment — the little notes that you draw, the comments you
make to the staff. I mean, we haven’t even gotten....Oh
yeah. We haven’t even gotten there.
***
You may think that because you were born in 19
whatever it was—forty something or other, that you’re
from an old enough generation that can get away with
saying certain things, but it’s just not true.
The executive director later repeated that “[i]f the
Commission has your letter of resignation by tomorrow
by 9 a.m., this matter will be gone. Nobody will hear
about it. You’ll have a retirement party. Everybody will
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,J.
go home happy.” But, the executive director stated, if
respondent fought the allegations, “I almost welcome
the opportunity. Or you can take the easy way out and
take a resignation.”
When respondent asked to see a file referred to in one
of the alleged sexual drawings that the executive direc-
tor provided, the executive director stated, “I’m not
here now to do any type of interview with you. I’m not
here to explain anything else.” When respondent asked
what other evidence formed the basis for the allega-
tions, the executive director stated:
Sir, I’ve followed the court rules. The rules are provided
in 9.200 and following. We’ve complied with the court
rules. I’ve come here to personally to [sic] give you this to
perhaps avoid any embarrassing situations. I’ve come here
to perhaps avoid having to drag your name through the
mud with what is going to come out at a formal hearing and
to give you an opportunity to obviate all that and retire
quietly. I’m not here to discuss the matter with you.
The executive director later stated, “If we push this all
the way, everybody’s going to know why you left be-
cause you got thrown off the bench.”
As the above excerpts reflect, the executive director’s
tactics were unnecessarily harsh. The executive direc-
tor essentially ambushed respondent in his chambers
with the allegations, demanded his immediate resigna-
tion by 9:00 a.m. the next day, and refused to answer
respondent’s questions regarding the bases for the
allegations.
The record does not, however, reflect that the JTC
itself approved all these tactics. Although the executive
director represented that “the Commission” was giving
respondent until 9:00 a.m. the next morning to resign,
the record does not indicate whether the JTC approved
the surprise nature of the confrontation, the refusal to
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answer respondent’s questions, or the abrasive disre-
gard of respondent’s request for more time to talk to
someone.
I am extremely concerned about the grounds for the
JTC’s decision to exclude from the record the audio
recording of the executive director’s confrontation with
respondent, because it gives rise to a possible inference
of collaboration. Respondent submitted the recording
as one of several attachments to his brief in support of
his objections to the master’s report. The JTC granted
the examiner’s motion to strike the attachments. The
JTC chairperson explained the basis for that decision:
The presentation of additional evidence after the con-
clusion of a public hearing as [sic] governed by MCR 9.218.
That rule provides that the Commission may order a
hearing with at least 14 days’ notice. That process was not
found [sic] in this case. Accordingly, the motion to strike
was hereby granted.
The court rule cited by the chairperson, MCR 9.218,
provides:
The commission may order a hearing before itself or the
master for the taking of additional evidence at any time
while the complaint is pending before it. The order must
set the time and place of hearing and indicate the matters
about which evidence is to be taken. A copy of the order
must be sent to the respondent at least 14 days before the
hearing.
Regardless of whether the striking of the audio
recording was a correct decision under MCR 9.218, I
have no real evidentiary basis to question the conclu-
sion that the JTC decided the motion on the basis of its
stated rationale rather than because of any effort to
conceal the audio recording.
Therefore, I conclude that the executive director’s
punitive tactics alone do not rise to the level of special
2009] In re S
ERVAAS
709
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ORRIGAN
,J.
facts or circumstances that would create an intolerably
high risk of unfairness. The record does not show that
the JTC members exhibited any bias or prejudgment,
and respondent has not overcome the presumption of
honesty and integrity in those serving as adjudicators.
Withrow, supra at 47. Moreover, an impartial master
appointed by this Court conducted the hearing and
found the relevant facts, the JTC’s decision was merely
a recommendation to this Court, and it is this Court,
after the de novo review, that now renders a decision
regarding the appropriate discipline, if any, that should
be imposed. Del Rio, supra; Chrzanowski, supra.
Accordingly, despite my serious concerns regarding the
executive director’s behavior during his confrontation
with respondent, I am not convinced that respondent has
established a violation of his due process rights.
Y
OUNG
,J.(dissenting). I join in parts V(A) and (C) of
Justice M
ARKMAN
’s opinion. Like Justice M
ARKMAN
and
the Judicial Tenure Commission (JTC), I conclude that
respondent lied during the JTC proceedings and that
this misconduct alone provides sufficient basis for re-
moving him from office.
1
I write separately because I
decline to address whether the JTC has the authority to
determine if respondent vacated his office in violation of
Const 1963, art 6, § 20 during the course of judicial
disciplinary proceedings because respondent admitted
that he changed his primary residence from the first to
the second election division from August 2005 to Feb-
ruary 2008. Given respondent’s admission that he
1
I am aware of the behavior exhibited by the executive director of the
Judicial Tenure Commission in January 2008. However, the propriety of
his actions is best addressed by the Attorney Grievance Commission, and
is not before the Court today. Rather, the sole issue before the Court is
whether respondent’s actions constitute judicial misconduct.
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OUNG
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moved outside his election division,
2
I believe that a
formal determination of the JTC’s power to decide such
a question independent of respondent’s admission is
unnecessary in this case and do not reach a conclusion
in the question debated by Justices M
ARKMAN
and
W
EAVER
in their respective opinions.
A. RESPONDENT LIED UNDER OATH
I fully agree with Justice M
ARKMAN
’s analysis of the
record in parts V(A) and (C) regarding respondent’s
untruthful testimony. What is startling is that the
majority accepts without question respondent’s prof-
fered justification for vacating his office—that respon-
dent “thought he could live in [the second election]
division as long as he was not running for reelection.”
3
Were this justification true, one would have expected
respondent to live openly and notoriously at his legal
residence, wherever that residence happened to be
located within the 63rd District. However, review of the
record reveals quite the opposite—respondent’s actions
during the relevant period were completely inconsistent
with one who honestly believed that he could freely live
outside his election territory.
Respondent acknowledged that he moved his legal
2
I believe that respondent’s admission establishes that he violated
Const 1963, art 6, § 20. Because the law forbids abandonment of office
while the office holder continues to function in that office, it is sanction-
able judicial misconduct for any judge to continue serving in an office that
he has vacated. However, in light of my conclusion that respondent lied
under oath, and that this misconduct alone warrants his removal, I do
not believe it necessary to address the appropriate sanction for either the
abandonment of office violation or the sexually inappropriate misconduct
that the JTC also concluded respondent committed.
3
Ante at 653. However, respondent asserted in his brief yet a different
justification in his brief, claiming that he was “only required to live
within the district in which the court sits” and could “make his principal
residence in any division within that district.” (Emphasis in original.)
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OUNG
,J.
residence out of the 1st election division in 2005.
Significantly, respondent acknowledged that he knew
that he was required by law to change his address after
he moved. However, respondent never changed the
address on his driver’s license to reflect his move to the
second election division.
4
Additionally, despite acknowl-
edging that he was legally required to do so, respondent
never changed his voter registration information from
the first to the second election division. In fact, respon-
dent fraudulently continued to vote as though he still
lived in the 1st election division.
5
Moreover, respondent continued to list his 1st elec-
tion division address as his “residential address” on his
2007 application to carry a concealed weapon (CCW).
6
This latter act is particularly egregious because the
CCW application is an affidavit that states:
Read the following statements and, if you agree, sign
below at the time of submission with the clerk.
4
The law requires a person to “immediately notify the secretary of
state of his or her new residence address,” and the failure to do so is
punishable by a civil infraction. MCL 257.315(1) and (3) (emphasis
added).
5
Voting in a district other than that associated with one’s place of
residence is prohibited by law. MCL 168.932a(d). Nevertheless, respon-
dent claimed that he was entitled to vote in a district where he did not
reside because he owned a house in the first election division and “paid
the taxes.” However, as our constitution provides, and any voting citizen
in this state well knows, an elector is qualified by meeting the “require-
ments of local residence,” not simply by paying taxes. Const 1963, art 2,
§ 1. Moreover, “residence” is defined at MCL 168.11 as the “place at
which a person habitually sleeps, keeps his or her personal effects and
has a regular place of lodging.” At the time respondent fraudulently voted
in the first election division, respondent testified that his property in the
first election division was occupied and leased to a “guy who wants to buy
it.” I find that respondent’s continued voting in his former electoral
district after admitting that he had changed his legal residence entirely
undermines his credibility and defense.
6
In addition to being a falsehood, this act is prohibited by law. MCL
28.425b(3).
712 484 M
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***
I understand that this application is executed under
oath and swear or affirm under penalty of law that the
above answers are true and correct to the best of my
knowledge. I understand that intentionally making a false
statement is a felony punishable by imprisonment for not
more than 4 years or a fine of not more than $2500, or both.
Consequently, by signing this application with the in-
correct address of residence, respondent again lied
under oath. Despite this, respondent’s defense is that
he did not read the application before signing it. This
has never been a valid defense to false swearing on a
document requiring an attestation of truthfulness.
7
The
majority’s acceptance of respondent’s excuse is as
shameful as respondent’s attempt to minimize the
consequence of his dishonesty. We judges demand more
of ordinary citizens who appear before us in court.
Thus, it is hard to understand the “free pass” the
majority has given a fellow member of the judiciary who
ought to be held to at least the standard of honesty we
require of others.
Respondent’s intentional violation of the laws gov-
erning voting, driver’s licenses, and CCW licensing are
independently troubling, not inadvertent, and form a
pattern of intentional misdirection. If respondent truly
believed that he was free to live in the second election
division, then why would he take such great pains to
make it appear as though his legal residence was still in
the 1st election division? I think the answer is clear.
7
In fact, the “I didn’t read it” defense is not a cognizable defense for
any written document in Michigan, much less a document requiring an
attestation of truthfulness.SeeOtto Baedeker & Associates, Inc v
Hamtramck State Bank, 257 Mich 435; 241 NW 249 (1932); Int’l
Transportation Ass’n v Bylenga, 254 Mich 236; 236 NW 771 (1931);
Collier v Stebbins, 236 Mich 147; 210 NW 264 (1926); Gardner v Johnson,
236 Mich 258, 210 NW 295 (1926).
2009] In re S
ERVAAS
713
D
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PINION BY
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OUNG
,J.
Respondent took pains to conceal his true residence
because he had reason to know that he was not living in
the proper election division. After respondent filed a
homestead exemption for his second election division
home in 2005, it became increasingly impossible for
respondent to maintain the lie regarding his legal
residence being outside his election division.
Additionally, the testimony indicated that between
2000 and the end of 2004 respondent provided court
staff with a telephone number to his property in the
second election division for the court’s after-hours duty
log.
8
However, beginning in January 2005, respondent
provided a telephone number to his property in the 1st
election division, but the testimony indicated that calls
placed to this number were forwarded to his address in
the second election division. Beginning in January
2006, testimony indicated that the after-hours tele-
phone number was changed to a telephone number in
the second election division because respondent “was
having problems with his fax machine and he thought
that the call forwarding from the other phone was the
problem with the fax machine.” However, in July 2006,
respondent again reverted to providing court staff with
a 1st election division telephone number that was again
forwarded to his telephone in the 2nd election division.
While the testimony indicated that respondent provided
the telephone numbers to the court administrator, at
the hearing respondent claimed that the telephone
numbers “didn’t come from [him]” and claimed to be
unable to recognize his own telephone number, despite
the fact that the telephone number was provided to the
court administrator a mere eighteen months before the
8
The logs, prepared in three-month intervals, provided law enforce-
ment a means of contacting a member of the 63rd District judiciary after
regular business hours.
714 484 M
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hearing.
9
When asked if he had ever had calls forwarded
from one address to another, respondent evasively an-
swered “no, not that I know of.” I reject the ridiculous
notion that respondent could not recognize his own
telephone number and did not “know” whether he had
forwarded telephone calls from one property to the
other. More fundamentally, if respondent truly believed
that he was free to live legally in the second election
division and maintain his judicial office, there would
have been no need to forward his telephone calls at all.
Thus, I completely agree with Justice M
ARKMAN
that the
record establishes that respondent repeatedly lied un-
der oath. The majority incredulously claims that “re-
spondent did nothing to hide the fact” that respondent
resided in his second election division home from 2005;
however, the plain facts contained in the record indicate
otherwise.
10
9
Because of his need to maintain the deception about the place of his
legal residence, even small things became problematic for respondent
to admit. He was extraordinarily evasive in his testimony before the
JTC. I offer the following example of respondent’s evasive testimony:
Q: So it’s July, August, September 2006.
A: Right.
Q: With a phone number that’s listed there that ends in a 30
that you’ve read. Do you recognize that phone number as one of
your home phone numbers?
A: No.
Q: You don’t know what that phone number is?
A: I don’t—ImeanI’mnotsayingitisn’t,butI—andIdon’t
know how it got there, because I didn’t give it to anybody.
10
The majority cites as conclusive evidence the fact that respondent
was listed in the local telephone book as proving he “did nothing to hide
the fact” that he resided in the second election division. However, a
listing in the telephone book merely indicates that respondent had an
2009] In re S
ERVAAS
715
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,J.
B. SANCTION
Having determined that the record fully supports
that respondent lied under oath, I believe that the only
appropriate sanction is removal from office.
11
As I noted
in In re Noecker:
12
The purpose of Judicial Tenure Commission proceed-
ings is not the punishment of the judge, but to maintain the
integrity of the judicial process and to protect the citizenry
from corruption and abuse. As such, this Court’s primary
concern in determining the appropriate sanction is to
restore and maintain the dignity and impartiality of the
judiciary and to protect the public.
***
Our judicial system has long recognized the sanctity and
importance of the oath. An oath is a significant act,
establishing that the oath taker promises to be truthful. As
address and telephone number in the second election division. A listing in
the telephone book does not indicate one’s legal residence. One’s voter
registration and driver’s license are indicative of legal residence and, as
stated, these indicia do not support respondent’s or the majority’s
position. Let us not forget that respondent affirmatively attested to the
incorrect residence address on his 2007 CCW license application.
11
This Court has generally removed a judge from office when it has
been determined, in whole or in part, that a judge has provided false
testimony or evidence in JTC proceedings. See In re Ryman, 394 Mich
637, 232 NW2d 178 (1975); In re Loyd, 424 Mich 514; 384 NW2d 9 (1986);
In re Ferrara, 458 Mich 350, 372; 582 NW2d 817 (1998) (“Judges,
occupying the watchtower of our system of justice, should preserve, if not
uplift, the standard of truth, not trample it underfoot or hide in its shady
recesses. This is precisely why judges should be exemplars of respectful,
forthright, and appropriate conduct.”); In re Noecker, 472 Mich 1; 691
NW2d 440 (2005); In re Nettles-Nickerson, 481 Mich 321; 750 NW2d 560
(2008). The only exception I can discern is In re Thompson, 470 Mich
1347 (2004), where the JTC and respondent reached a plea agreement for
a 90-day suspension, and the complaint included an allegation that
respondent “demonstrated a lack of candor” before the JTC.
12
472 Mich 1, 691 NW2d 440 (2005).
716 484 M
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the “focal point of the administration of justice,” a judge is
entrusted by the public and has the responsibility to seek
truth and justice by evaluating the testimony given under
oath. When a judge lies under oath, he or she has failed to
internalize one of the central standards of justice and
becomes unfit to sit in judgment of others.... [S]ome
misconduct, such as lying under oath, goes to the very core
of judicial duty and demonstrates the lack of character of
such a person to be entrusted with judicial privilege.
[
13
]
For these reasons, I would adopt the recommenda-
tion of the JTC and remove respondent from office.
13
Id. at 16-17 (emphasis added).
2009] In re S
ERVAAS
717
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,J.
PEOPLE v LOWE
Docket No. 137284. Decided August 13, 2009.
Jamie L. Lowe pleaded guilty in the Hillsdale Circuit Court of
possession of methamphetamine, which carries a maximum sen-
tence of 10 years. The defendant’s recommended minimum sen-
tence range under the sentencing guidelines was 10 to 23 months.
As a repeat controlled substances offender, the defendant was
subject to MCL 333.7413(2), which authorizes the sentencing
court to impose a sentence “for a term not more than twice the
term otherwise authorized....”Thecourt,Michael R. Smith, J.,
doubled both the minimum and maximum sentences and sen-
tenced the defendant to 46 months to 20 years in prison. The
defendant filed a delayed application for leave to appeal, asserting
that the court had erred by doubling his minimum sentence. The
Court of Appeals, J
ANSEN
,P.J., and C
AVANAGH
,J.(G
LEICHER
,J.,
voting to grant leave), denied leave to appeal in an unpublished
order, entered August 15, 2008 (Docket No. 286373). The defen-
dant sought leave to appeal, and the Supreme Court ordered and
heard oral argument on whether to grant the application for leave
to appeal or take other peremptory action. 483 Mich 889 (2009).
In an opinion by Justice M
ARKMAN
, joined by Justices W
EAVER
,
C
ORRIGAN
,Y
OUNG
, and H
ATHAWAY
, the Supreme Court held:
MCL 333.7413(2) authorizes a sentencing court to double both
the minimum sentence and the maximum sentence of a defendant
who is a repeat controlled substances offender because the statute
allows the court to enhance the defendant’s sentence to “not more
than twice the term otherwise authorized” for the underlying
offense. Under Michigan’s indeterminate sentencing scheme, the
“term otherwise authorized” describes an indeterminate sentence,
which is defined by both a minimum sentence and a maximum
sentence. Interpreting the phrase “term otherwise authorized” to
include both the minimum and maximum sentences gives effect to
the word “term” and all other words in the statute and is
consistent with the ordinary parlance used by the courts of this
state to describe indeterminate prison sentences. Doubling a
defendant’s minimum and maximum sentences ensures that, as a
general matter, the defendant will serve more time in prison under
718 484 M
ICH
718 [Aug
the enhanced sentence than the defendant would have served
under the unenhanced sentence otherwise authorized.
Affirmed.
Justice C
AVANAGH
, joined by Chief Justice K
ELLY
, dissenting,
disagreed that MCL 333.7413(2) permits a sentencing court to
double the minimum sentence and would hold that the statute
only authorizes a court to double the statutory maximum sen-
tence. Interpreting the statute as allowing the doubling of the
minimum sentence creates a conflict between MCL 333.7413(2)
and MCL 769.34(2), which requires that all minimum sentences
imposed fall within the range calculated under the sentencing
guidelines absent a departure. The Legislature, in MCL 777.18,
expressly included MCL 333.7413(2) among the statutes covered
by the sentencing guidelines. The “term otherwise authorized”
that MCL 333.7413(2) refers to and allows to be doubled is the
maximum penalty for the underlying controlled substances of-
fense. This interpretation harmonizes the statutory sentencing
scheme as a whole. The judgment of the Court of Appeals should
be reversed, and the case should be remanded for resentencing.
S
ENTENCES —
C
ONTROLLED
S
UBSTANCES —
R
EPEAT
O
FFENDERS —
S
ENTENCING
G
UIDELINES —
D
OUBLING OF
M
INIMUM
S
ENTENCES
.
MCL 333.7413(2) authorizes a sentencing court to double both the
minimum sentence calculated under the sentencing guidelines and
the statutory maximum sentence of a defendant who is a repeat
controlled substances offender.
Michael A. Cox, Attorney General, B. Eric Restuccia,
Solicitor General, and Neal A. Brady, Prosecuting At-
torney, for the people.
State Appellate Defender (by Brandy Y. Robinson)
and Ronald D. Ambrose for the defendant.
M
ARKMAN
, J. This case presents the question whether
MCL 333.7413(2), by authorizing a trial court to en-
hance the sentence of a defendant who is a repeat drug
offender to a “term not more than twice the term
otherwise authorized,” allows the trial court to double
both the defendant’s minimum and maximum sen-
2009] P
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OWE
719
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tences. We answer this question in the affirmative.
Accordingly, defendant’s sentence is affirmed.
I. BACKGROUND
Defendant pleaded guilty to possession of metham-
phetamine, MCL 333.7403(2)(b)( i), with a sentence
enhancement as a repeat drug offender, MCL
333.7413(2). At sentencing, the trial court calculated
defendant’s minimum sentence range under the sen-
tencing guidelines at 10 to 23 months. Pursuant to
§ 7413(2), the trial court, relying on People v Williams,
268 Mich App 416; 707 NW2d 624 (2005), doubled both
the minimum and maximum sentences and sentenced
defendant to 46 months to 20 years in prison.
1
Defen-
dant did not object to the sentence, but sought leave to
appeal in the Court of Appeals, contending that the trial
court had erred by doubling his minimum sentence.
The Court of Appeals denied leave to appeal in a split
decision, and defendant applied for leave to appeal in
this Court. We heard oral argument on his application.
II. STANDARD OF REVIEW
This Court reviews de novo questions of statutory
interpretation. People v Schaefer, 473 Mich 418, 427;
703 NW2d 774 (2005).
III. ANALYSIS
MCL 333.7413(2) provides for enhanced sentencing
for defendants convicted of a second or subsequent
controlled substance offense:
1
Possession of methamphetamine typically carries a maximum sen-
tence of 10 years. MCL 333.7403(2)(b)(i).
720 484 M
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Except as otherwise provided in subsections (1) and (3),
an individual convicted of a second or subsequent offense
under this article may be imprisoned for a term not more
than twice the term otherwise authorized or fined an
amount not more than twice that otherwise authorized, or
both.
[
2
]
Defendant argues that the phrase “the term otherwise
authorized” only refers to the statutory maximum
sentence, and that the trial court therefore erred by
doubling the minimum sentence guideline range. Con-
sequently, his minimum sentence should have been
within the original minimum sentence guideline range
of 10 to 23 months. The prosecutor responds that, based
on Michigan’s indeterminate sentencing scheme,
3
“the
term otherwise authorized” refers to the period demar-
cated by both the minimum and maximum sentences
and thus the court correctly doubled that “term” by
doubling both the minimum and maximum sentences.
Obviously, the resolution of the instant dispute rests on
the meaning of “the term otherwise authorized.”
The Court’s responsibility in interpreting a statute is
to determine and give effect to the Legislature’s intent.
People v Koonce, 466 Mich 515, 518; 648 NW2d 153
(2002). The statute’s words are the most reliable indi-
2
MCL 333.7413(5) provides:
For purposes of [§ 7413(2)], an offense is considered a second or
subsequent offense, if, before conviction of the offense, the of-
fender has at any time been convicted under this article or under
any statute of the United States or of any state relating to a
narcotic drug, marihuana, depressant, stimulant, or hallucino-
genic drug.
Defendant had been convicted of at least one prior drug-related offense.
3
An indeterminate sentence is one the specific duration of which is
“not fixed by the court but is left to the determination of penal
authorities within minimum and maximum time limits fixed by the
court.” Black’s Law Dictionary (5th ed).
2009] P
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cator of the Legislature’s intent and should be inter-
preted based on their ordinary meaning and the context
within which they are used in the statute. People v
Morey, 461 Mich 325, 330; 603 NW2d 250 (1999). Once
the Court discerns the Legislature’s intent, no further
judicial construction is required or permitted “because
the Legislature is presumed to have intended the mean-
ing it plainly expressed.” People v Stone, 463 Mich 558,
562; 621 NW2d 702 (2001).
The word “term” is relevantly defined as “the time or
period through which something lasts” or “a period of
time to which limits have been set.” Random House
Webster’s College Dictionary (1997). The “term” that a
court is permitted to double in § 7413(2) is the “term
otherwise authorized.” “[O]therwise authorized” un-
doubtedly refers to the term provided by law and for
which a defendant would be imprisoned absent any en-
hancement under § 7413(2). Thus, the “term otherwise
authorized” is a “period of time,” or more specifically a
“period of time to which limits have been set,” by law.
Because Michigan generally adheres to an indetermi-
nate sentencing scheme,
4
the term for which a defen-
dant would “otherwise” be imprisoned absent an en-
hancement is not a definite period “through which
[imprisonment] lasts.” Rather, it is an indefinite “per-
iod” that is defined by a minimum and maximum
sentence. In the instant case, for example, defendant’s
unenhanced sentence would likely have been 23 months
to 10 years.
5
This sentence is best understood as “the
4
Article 4, § 45, of the Michigan Constitution provides that the
“legislature may provide for indeterminate sentences as punishment for
crime and for the detention and release of persons imprisoned or detained
under such sentences.”
5
This presumes that the trial court would have sentenced defendant at
the top of the minimum sentence guideline range just as it sentenced
defendant at the top of the enhanced guideline range.
722 484 M
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718 [Aug
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term otherwise authorized,” because: (a) it identifies
the “period of time” that a defendant has to remain in
prison as a function of “limits [that] have been set” by
the minimum sentence guidelines and the statutory
maximum;
6
and (b) this “period of time” has been
calculated as “authorized” by law.
That the indeterminate sentence that a defendant
typically receives under Michigan law constitutes a
“term” is supported by the ordinary parlance used by the
courts of this state to describe indeterminate prison sen-
tences. See, e.g., People v Smith, 482 Mich 292, 297; 754
NW2d 284 (2008) (“The judge sentenced defendant to
three concurrent terms of 30 to 50 years’ imprison-
ment....”) (emphasis added); People v Williams, 475
Mich 245, 248; 716 NW2d 208 (2006) (“[Defendant] was
sentenced to a one- to fifteen-year term of imprison-
ment.”) (emphasis added); People v Conyer, 281 Mich App
526, 527; 762 NW2d 198 (2008) (“Defendant was sen-
tenced to serve consecutive prison terms of 30 to 120
months....”)(emphasis added); People v Matuszak, 263
Mich App 42, 45; 687 NW2d 342 (2004) (“Defendant was
sentenced to concurrent prison terms of fifteen to thirty
years....”) (emphasis added). These are only a tiny
sampling of the hundreds of decisions in which a defen-
dant’s indeterminate sentence range is consistently re-
ferred to as a “term.”
7
Such ordinary and persistent use
of “term” to describe this range establishes clearly, in
our judgment, that the sentence expressed by reference
to both the minimum and maximum sentences consti-
tutes a “term.”
6
Defendant would have had to serve no less than 23 months and no
more than 10 years.
7
See the results generated by a Lexis or Westlaw search with the
following parameters: sentence! /s “term of”.
2009] P
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Thus, under Michigan’s scheme of indeterminate
sentencing and the courts’ implementation of that
scheme, the “term otherwise authorized” is not exclu-
sively the minimum sentence or the maximum sen-
tence, but it is the actual indeterminate sentence, which
is defined by both the minimum and maximum limits
for that sentence. In other words, the “period of time”
that a defendant could potentially spend in prison lies
somewhere between the minimum and the maximum
allowable sentences, and accordingly those sentences
operate in tandem to define the “term” for which a
defendant has been sentenced. In order to double this
“term,” a trial court necessarily has to double both the
minimum and maximum sentences because both are
required to constitute a particular “term.”
8
Accordingly,
§ 7413(2)’s authorization for a trial court to imprison a
defendant for a “term not more than twice the term
otherwise authorized” signifies that both the minimum
and maximum sentences must be doubled to fashion an
enhanced sentence that is twice the “term otherwise
authorized.”
9
Moreover, interpreting “the term otherwise autho-
rized” as the indeterminate sentence created by both
the minimum and maximum sentences is the only way
to give consistent effect to § 7413(2)’s directive that the
defendant be “imprisoned for a term not more than
twice the term otherwise authorized” when the trial
8
We recognize that the statute does not require the trial court to double
a defendant’s sentence; rather, it allows an enhancement up to “not more
than twice” the original term. Merely for ease of discussion throughout
this opinion, we assume that the trial court’s chosen enhancement is
twice the original term.
9
Because § 7413(2) specifically allows the court to double the guideline
range, as long as the minimum sentence of the enhanced term is within
the doubled range, we conclude that there is also no departure from the
guideline range when such a sentence is imposed. See People v Williams,
268 Mich App at 430.
724 484 M
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718 [Aug
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court doubles the “term otherwise authorized.” (Em-
phasis added.) The alternative interpretation suggested
by defendant, with which the dissent agrees, creates a
risk that this statutory directive will be violated, be-
cause defendant would have this Court treat the maxi-
mum sentence, but not the minimum sentence, as a
“term,” even though both sentences, equivalently, con-
stitute periods of time through which defendant’s
prison time may last.
10
Assume that defendant is sen-
tenced to 23 months to 20 years.
11
It would be impos-
sible for defendant to serve this maximum sentence,
because to do so would mean that defendant will have
been imprisoned for a term “more than twice the term
otherwise authorized,” since defendant’s interpretation
necessarily means that the minimum sentence must be
treated as a “term otherwise authorized.” That is, the
statute itself would have been violated because defen-
dant’s term of imprisonment, i.e., 20 years, would be 10
times longer than the 23-month “term” that defendant
asserts is “otherwise authorized,” which directly con-
flicts with the statutory requirement that defendant
can only be imprisoned for a term “not more than
twice” that “term.”
By contrast, when the “term otherwise authorized”
is interpreted as the indeterminate sentence designated
by both the minimum and maximum sentences, and
when both of these sentences are doubled, the defen-
10
As the Court of Appeals noted in People v Williams, 268 Mich App at
427, “the clear and unambiguous language of MCL 333.7413(2) does not
differentiate or suggest a distinction... between maximum and mini-
mum sentences[.]” Accordingly, nothing within the statute can fairly be
read to support applying defendant’s suggested meaning of “term” to a
maximum, but not a minimum, sentence.
11
This is based on a minimum sentence at the top of the unenhanced
guideline range and twice the statutory maximum sentence. Thus,
pursuant to defendant’s argument, only the maximum sentence here is
doubled.
2009] P
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725
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dant will never be imprisoned for a term 10 times the
unenhanced term. Using the previous illustration,
when both the minimum and maximum sentences are
doubled, the 23-month minimum sentence would be
doubled to 46 months, the 10-year maximum sentence
would be doubled to 20 years, and, accordingly, the
“term otherwise authorized,” i.e., 23 months to 10
years, would be doubled to 46 months to 20 years. When
a trial court considers both the minimum and maximum
sentences as the “term otherwise authorized,” and
doubles each of these to form the enhanced term, the
enhanced term will never be 10 times as long as the
“term otherwise authorized,” but will always be exactly
twice as long as the unenhanced term.
Finally, the Legislature’s authorization for a defen-
dant to be imprisoned for an enhanced term is most
reasonably understood to communicate that the defen-
dant should, in fact, serve more time—indeed as a
general matter, approximately “twice” as much time—
for his enhanced term than for his unenhanced term.
Interpreting § 7413(2) to only allow the trial court to
double the defendant’s maximum sentence would not in
reality ensure that the defendant will serve any addi-
tional time when sentenced for a second drug offense,
because the minimum sentence would remain the same
and nothing in an indeterminate sentence prevents a
defendant from being released after his minimum sen-
tence has been satisfied. Thus, interpreting § 7413(2) to
allow both the minimum and maximum sentences to be
doubled is most consistent with what is almost certainly
the common understanding that a defendant who has
been imprisoned for “twice” his original “term” will
serve twice what he would have otherwise served.
12
12
Admittedly, under Michigan’s indeterminate sentencing scheme,
there is no way of knowing how much time a defendant would actually
726 484 M
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Defendant also contends that MCL 777.21 supports
his position that the trial court can only double the
maximum sentence under MCL 333.7413(2). MCL
777.21 states in relevant part:
(3) If the offender is being sentenced under section 10,
11, or 12 of chapter IX, determine the offense category,
offense class, offense variable level, and prior record vari-
able level based on the underlying offense. To determine
the recommended minimum sentence range, increase the
upper limit of the recommended minimum sentence range
determined under part 6 for the underlying offense as
follows:
(a) If the offender is being sentenced for a second felony,
25%.
(b) If the offender is being sentenced for a third felony,
50%.
(c) If the offender is being sentenced for a fourth or
subsequent felony, 100%.
(4) If the offender is being sentenced for a violation
described in section 18 of this chapter, both of the following
apply:
[
13
]
(a) Determine the offense variable level by scoring the
offense variables for the underlying offense and any addi-
tional offense variables for the offense category indicated
in section 18 of this chapter.
(b) Determine the offense class based on the underlying
offense. If there are multiple underlying felony offenses,
the offense class is the same as that of the underlying
felony offense with the highest crime class. If there are
multiple underlying offenses but only 1 is a felony, the
have served under his original sentence. The only certainty is the “term
otherwise authorized,” and logically the statute authorizes enhancing
this known “term.”
13
Section 18 refers to MCL 777.18, in which the Legislature expressly
provided that the chapter of the Code of Criminal Procedure encompass-
ing the sentencing guidelines applies to felonies under MCL 333.7413(2).
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offense class is the same as that of the underlying felony
offense. If no underlying offense is a felony, the offense
class is G.
Defendant relies on the fact that § 21(3) allows a court
to increase a defendant’s minimum sentence range, but
§ 21(4), which applies to sentencing under MCL
333.7413(2), only specifies the various offense variables
and offense classes to be used in calculating the guide-
line range. Therefore, he argues, the Legislature’s omis-
sion of a minimum sentencing enhancement in MCL
777.21(4) indicates that the Legislature did not intend
enhancement of minimum sentences for those offenses.
We find defendant’s argument unpersuasive. MCL
777.21(4) simply provides the methodology for a trial
court to follow in calculating a defendant’s minimum
sentence guideline range. The lack of a minimum
sentence enhancement in that subsection provides no
insight into whether MCL 333.7413(2) provides a mini-
mum sentence enhancement, and it is unclear why a
lack of a minimum sentence enhancement under MCL
777.21(4) must mean that the Legislature intended
MCL 333.7413(2) to also lack a minimum sentence
enhancement.
14
The Legislature’s silence in MCL
777.21(4) regarding a minimum sentence enhancement
cannot preclude the Legislature from providing a mini-
mum sentence enhancement in a separate statute.
IV. RESPONSE TO DISSENT
The dissent concludes that MCL 333.7413(2) should
be interpreted to authorize trial courts to enhance only
14
Contrary to the dissent’s assertion that MCL 777.21(4) “does not
provide dispositive support” for our interpretation, post at 739 n 6, this
subsection actually does support our interpretation when considered
specifically in the context of the sentencing guidelines and MCL
333.7413(2). See infra at 729-731.
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the maximum sentence for repeat drug offenders because
such interpretation avoids a “potential conflict” between
§ 7413(2) and MCL 769.34(2). Post at 736-737. We agree
with the dissent’s maxim of interpretation that statutes
concerning the “same subject matter must be read to-
gether and, when possible, construed harmoniously,” post
at 733, but disagree that this compels the dissent’s inter-
pretation. In arriving at this disagreement, we consider
the equally well-established maxim of interpretation that
“the Legislature is presumed to be aware of judicial
interpretations of existing law when passing legislation.”
Ford Motor Co v City of Woodhaven, 475 Mich 425,
439-440; 716 NW2d 247 (2006) (quotation marks omit-
ted).
As the dissent correctly notes, post at 740, prior to
enactment of the sentencing guidelines, MCL
333.7413(2) had been interpreted to allow a trial court
to enhance both the minimum and maximum sentences
when a defendant’s “term,” defined by those minimum
and maximum sentences, was set by statute. See People
v Williams, 205 Mich App 229, 230; 517 NW2d 315
(1994). The sentencing guidelines now statutorily au-
thorize both the minimum and maximum sentences for
a broad range of criminal offenses, thereby making the
“terms” of applicable offenses to which § 7413(2) had
not previously applied the equivalent of the “terms” of
offenses to which § 7413(2) had previously applied.
Thus, our interpretation of § 7413(2) remains consis-
tent with how it was interpreted in Williams; applying
that decision to the minimum sentence in the instant
case is merely a function of the Legislature’s decision to
enact sentencing guidelines that established minimum
sentences.
The dissent further argues that, because the sen-
tencing guidelines apply to defendant’s underlying
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offense—the possession of methamphetamine—the
sentence must be within the minimum sentence
guideline range as calculated for that offense. Post at
737. However, the Legislature expressly provided that
the guidelines specifically apply to sentencing done
pursuant to § 7413(2), MCL 777.18, and implemented
a specific scheme for when “the offender is being
sentenced for a violation [of § 7413(2)],” MCL
777.21(4). Under this scheme, the trial court is di-
rected to calculate the minimum sentence range
based on the offense variables and offense class for
the underlying felony. MCL 777.21(4). Notably,
§ 21(4) includes no scoring for prior record variables,
even though MCL 333.7413(2) only applies if a defen-
dant has, in fact, committed a prior offense. In light
of this, it seems reasonable to conclude that the
Legislature, knowing that § 7413(2) allowed an en-
hancement of the minimum sentence, intended the
minimum sentence guideline range to be calculated
without respect to the underlying offense’s repeat
nature. If the Legislature had intended for § 7413(2)
to operate only as an enhancement of the maximum
sentence, then MCL 777.21(4) would have been un-
necessary, and the Legislature would have had no
reason to apply the minimum sentence guidelines to
sentencing under MCL 333.7413(2). Instead, the Legisla-
ture could have simply directed the trial court to calculate
the minimum sentence guideline range for the underlying
felony as if it were not a subsequent drug offense, and
then simply apply § 7413(2) to increase the maximum
sentence. Yet, it chose not to do this. Rather, construing
the legislatively established procedures for determining
the minimum sentence guideline range under § 7413(2),
in combination with the recognition that the Legislature
was aware that § 7413(2) applied to “terms” that had
statutory minimums and maximums prior to the enact-
ment of MCL 769.34(2), suggests that the Legislature
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intended for the recidivist aspect of the subsequent
drug offense to be accounted for by enhancing both the
defendant’s minimum and maximum sentences pursu-
ant to § 7413(2).
15
Finally, the dissent contends that we reach our
interpretation of “term” through “impressive linguistic
gymnastics,” without clarifying what these “gymnas-
tics,” impressive or otherwise, might be. Post at 742 n
10. In fact, we have carefully reviewed the statutory
language, and the common understanding of that lan-
guage, to arrive at our understanding of what consti-
tutes the “term.” The Legislature used the phrase “the
term otherwise authorized,” unadorned by “minimum”
or “maximum” or any other modifier. In the dissent’s
own words, “it is logical that the unmodified word
‘term’ would be used in order to be applicable to both.”
Post at 742 n 10. More precisely, because the Legislature
has not modified “term” with either “minimum” or
“maximum,” the phrase “the term otherwise autho-
rized” is most reasonably interpreted as the prison term
to which a defendant would be sentenced absent any
enhancement. See also n 10 of this opinion. In Michi-
gan, such “term” is indeterminate and is established by
reference to both the minimum and maximum sen-
tences.
V. CONCLUSION
We hold that MCL 333.7413(2) authorizes the trial
court to double both the minimum and maximum
15
The dissent’s suggestion that MCL 777.21(4) “merely demonstrates
that the Legislature intended minimum sentences for repeat drug
offenders to be calculated under the sentencing guidelines,” post at 739 n
6, is untenable in light of the dissent’s interpretation that MCL
333.7413(2) only affects maximum sentences, and in light of the fact that
the Legislature has already provided calculations for drug offenses under
the sentencing guidelines.
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sentences in order to double defendant’s “term other-
wise authorized.” This understanding gives effect to the
Legislature’s use of a word, “term,” that is ordinarily
used to characterize a defendant’s indeterminate sen-
tence range, as well as to all other phrases in the
statute; it avoids the risk that, contrary to § 7413(2), a
defendant’s enhanced sentence will be “more than
twice” the unenhanced sentence; and it implements the
reasonable expectation that a statute authorizing a
court to “double” a sentence will ordinarily ensure that,
where the trial court acts pursuant to this authoriza-
tion, a defendant will serve more time in prison under
the enhanced sentence than he would have under the
unenhanced sentence. Accordingly, the trial court here
properly exercised its authority under § 7413(2), and
defendant’s sentence is affirmed.
W
EAVER
,C
ORRIGAN
,Y
OUNG
, and H
ATHAWAY
, JJ., con-
curred with M
ARKMAN
,J.
C
AVANAGH
,J.(dissenting). I respectfully dissent from
the majority’s conclusion that MCL 333.7413(2) per-
mits the sentencing judge to double the offender’s
minimum and maximum sentences. In my judgment, in
the context of the overall sentencing scheme, the pro-
vision at issue authorizes a sentencing judge to double
only the penalty provided within the controlled sub-
stances act, MCL 333.7101 et seq., which, in this case, is
only the maximum sentence. Therefore, I would reverse
the judgment of the Court of Appeals and remand the
case to the trial court for resentencing.
I. INTRODUCTION
The issue in this case is the proper interpretation of
the sentencing enhancement provision in the controlled
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substances act, MCL 333.7413(2), which states in rel-
evant part that “an individual convicted of a second or
subsequent offense under [the controlled substances
act] may be imprisoned for a term not more than twice
the term otherwise authorized....”Themajority holds
that, in addition to authorizing the doubling of the
maximum sentence provided for the offense in the
controlled substances act, this provision authorizes the
doubling of the minimum sentence authorized by the
sentencing guidelines in the Code of Criminal Proce-
dure. This interpretation, however, creates a conflict
between MCL 333.7413(2) and the provision in the
Code of Criminal Procedure, MCL 769.34(2), that re-
quires that all minimum sentences fall within the range
calculated under the sentencing guidelines absent a
departure. I would instead construe the statutory pro-
visions harmoniously to the extent possible and hold
that MCL 333.7413(2) authorizes the doubling of only
the penalties provided in the controlled substances act
and not the minimum sentences provided by the sen-
tencing guidelines.
II. OVERVIEW OF SENTENCING STATUTES
This case requires reading several sections of statu-
tory code together because, in Michigan, punishment
and sentencing for drug offenses are governed by the
controlled substances act, which is article 7 of the
Public Health Code, and chapters IX and XVII of the
Code of Criminal Procedure, MCL 769.1 et seq. and
MCL 777.1 et seq., respectively. Statutes regulating the
same subject matter must be read together and, when
possible, construed harmoniously. As this Court has
stated, “ ‘[a]ll consistent statutes which can stand to-
gether, though enacted at different dates, relating to the
same subject...are treated prospectively and con-
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strued together as though they constituted one act.’ ”
Wayne Co v Auditor General, 250 Mich 227, 234; 229
NW 911 (1930) (citation omitted). They are “ ‘to be
compared, harmonized if possible, and, if not suscep-
tible of a construction which will make all of their
provisions harmonize, they are made to operate to-
gether so far as possible consistently with the evident
intent of the latest enactment.’ ”
1
Id. (citation omitted).
To begin with, chapter IX of the Code of Criminal
Procedure provides the general rules for sentencing,
including how to calculate the appropriate minimum
and maximum terms under Michigan’s indeterminate
sentencing scheme. Maximum sentences are governed
partly by MCL 769.8(1), which provides that the maxi-
mum sentence for an offender’s first felony offense
punishable by imprisonment in a state prison shall be
the “maximum penalty provided by law ...inallcases
except as provided in this chapter [of the Code of
Criminal Procedure].” The maximum sentences for
drug offenses are provided in the controlled substances
act. Minimum sentences are governed by MCL
769.34(2), which clearly requires that the minimum of
every sentence be set in accordance with the Code of
Criminal Procedure. It states that the minimum sen-
tence for any felony included in part 2 of the sentencing
guidelines, MCL 777.11 et seq., “shall be within the
appropriate sentence range under the version of those
sentencing guidelines in effect on the date the crime
was committed,” except “as otherwise provided” in
1
The members of this Court have expressed differing views regarding
the proper approach to statutory interpretation. Although the current
justices have disagreed on certain principles of statutory interpretation,
there is agreement on the point that statutes should be construed in light
of and in harmony with other relevant statutory provisions. See, e.g.,
Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d 570 (2008); Baraga
Co v State Tax Comm, 466 Mich 264, 275 n 6; 645 NW2d 13 (2002).
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MCL 769.34(2) or (3).
2
The sentencing guidelines are
contained in chapter XVII of the Code of Criminal
Procedure and provide the means of calculating mini-
mum sentence ranges. The Code of Criminal Procedure
also includes instructions about when the upper limit of
those ranges may be enhanced. See MCL 769.34(2);
MCL 777.1 et seq. The controlled substances act also
provides mandatory minimum sentences for some drug
offenses, but the Code of Criminal Procedure provides
specific instructions about how to calculate minimum
sentences when another statute provides for a manda-
tory minimum sentence.
3
In sum, for every felony to
which chapter IX applies, the minimum sentence must
be within the range calculated under the sentencing
guidelines in chapter XVII of the Code of Criminal
Procedure, and every maximum sentence must be the
maximum provided by law.
In addition to the sentences generally permitted for
offenses, both the Code of Criminal Procedure and the
controlled substances act permit the sentences other-
wise authorized to be enhanced for defendants who
were convicted of prior offenses. The habitual-offender
statutes in the Code of Criminal Procedure, MCL
769.10, 769.11, and 769.12, permit the maximum sen-
tence otherwise allowed to be increased on the basis of
the number of previous offenses. In addition, the con-
trolled substances act provides in MCL 333.7413(2) that
2
MCL 769.34(2) provides an exception in circumstances in which a
statute mandates a minimum sentence or a judge expressly departs from
the guidelines by following the procedure outlined in MCL 769.34(3).
3
MCL 769.9(3) provides that for major controlled substance offenses
that have a mandatory minimum sentence, the court “shall fix the length
of both the minimum and maximum sentence within those specified
limits,...andthesentencesoimposed shall be considered an indeter-
minate sentence.” In addition, MCL 769.34(2)(a) provides that “[i]mpos-
ing a mandatory minimum sentence is not a departure [from the
sentencing guidelines] under this section.”
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a person convicted of a subsequent drug offense “may
be imprisoned for a term not more than twice the term
otherwise authorized ....” The sentencing guidelines
expressly incorporate MCL 333.7413(2) by listing that
statutory provision in MCL 777.18 along with other
statutory sections dealing with offenses that are based
on an offender’s other crimes. The sentencing guide-
lines instruct that in order to calculate a minimum
sentence for a violation listed in MCL 777.18, the trial
court should score the offense variables and determine
the offense class on the basis of the underlying offense.
MCL 777.21(4)(a) and (b).
III. THE PROPER INTERPRETATION OF MCL 333.7413(2)
The issue in this case arises in light of the enhance-
ment statute in the controlled substances act, MCL
333.7413(2). Defendant was subject to a sentence en-
hancement under this provision, which provides that,
excluding some circumstances not applicable here, “an
individual convicted of a second or subsequent offense
under [the controlled substances act] may be impris-
oned for a term not more than twice the term otherwise
authorized....”Themajority concludes that the “term
otherwise authorized” must refer to the “period of
time” between the minimum and maximum sentences,
so that MCL 333.7413(2) allows the doubling of both
the minimum and maximum sentences otherwise au-
thorized, regardless of where in the statutory scheme
the sentences are authorized. The majority therefore
upholds the doubling of the minimum sentence autho-
rized by the sentencing guidelines for defendant.
There is, however, a fundamental problem with this
approach that the majority fails to address. The majori-
ty’s interpretation creates a potential conflict between
the sentence enhancement provision of the controlled
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substances act, MCL 333.7413(2), and the requirement
of the Code of Criminal Procedure in MCL 769.34(2)
that all minimum sentences for applicable felonies must
fall within the range calculated under the sentencing
guidelines. The sentencing statutes in the Code of
Criminal Procedure apply in this case. MCL 769.34(2)
provides that every minimum sentence for a felony
listed in MCL 777.11 et seq. must fall within the range
permitted by the sentencing guidelines, except for cer-
tain circumstances provided for in MCL 769.34(2) and
(3) that do not apply here.
4
Defendant pleaded guilty of
possession of methamphetamine under MCL
333.7403(2)(b)(i), which is “a felony punishable by
imprisonment for not more than 10 years or a fine of
not more than $15,000.00, or both.” That offense is
listed in MCL 777.13m and, therefore, under MCL
769.34(2), the minimum sentence defendant receives
must fall within the range calculated under the sentenc-
ing guidelines in chapter XVII. I can see no authority
under chapter IX that would exempt defendant from
the requirement that the minimum sentence for his
offense be within the range calculated under the sen-
tencing guidelines. In my judgment, this is in conflict
with the majority’s conclusion that MCL 333.7413(2)
could be read to authorize the doubling of the minimum
sentence allowed by the sentencing guidelines, given
that doing so could result in a minimum sentence that
is not within the range provided by the guidelines.
As discussed below, I disagree with the majority’s
interpretation of the statute. But even if one accepts the
majority’s reading of MCL 333.7413(2) as correct when
4
MCL 769.34(2)(a) does not apply because the statute under which
defendant was sentenced, MCL 333.7403(2)(b)(i), does not specify a
mandatory minimum sentence. MCL 769.34(3) does not apply because
the sentencing judge did not follow the procedure required to depart from
the guidelines.
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read in isolation, I think that the provision still must be
read in harmony with MCL 769.34(2). Because MCL
769.34(2) uses mandatory language (“the minimum
sentence...shall be within the appropriate sentence
range”), while the language in the controlled sub-
stances act, MCL 333.7413(2), is merely permissive (“an
individual...may be imprisoned for a term not more
than twice the term otherwise authorized”), if the
majority’s interpretation of MCL 333.7413(2) were cor-
rect, I would still interpret MCL 769.34(2) as limiting
MCL 333.7413(2).
5
In my judgment, if the statutes are
not harmonized in this manner, the majority’s reading
of MCL 333.7413(2) irreconcilably conflicts with MCL
769.34(2).
6
I do not find it necessary to reach this somewhat
5
Even if the statutes could not be read harmoniously, in Wayne Co,this
Court stated that if statutes were “ ‘not susceptible of a construction
which will make all of their provisions harmonize, they are made to
operate together so far as possible consistently with the evident intent of
the latest enactment.’ ” Wayne Co, 250 Mich at 234 (citation omitted).
Given that the controlled substances act, including MCL 333.7413(2),
predated the sentencing guidelines and the current version of MCL
769.34(2) by 20 years, reading the mandatory language in MCL 769.34(2)
to limit MCL 333.7413(2) would be consistent with the “evident intent of
the latest enactment” in the sentencing scheme of the Code of Criminal
Procedure.
6
The majority argues that, because generally “the Legislature is
presumed to be aware of judicial interpretations of existing law when
passing legislation,” the Legislature must have intended the reference to
“term” in MCL 333.7413(2) to include the new minimum sentencing
guidelines. Ante at 729 (quotation marks omitted). While this reading
could harmonize MCL 333.7413(2) with the sentencing guidelines in a
general sense, it does not address the express conflict between MCL
333.7413(2) and the mandatory language in MCL 769.34(2) that the
minimum sentence must fall within the sentencing range provided in the
sentencing guidelines. If the Legislature had merely stated that the
minimum term must be within the range “provided by law,” as stated in
MCL 769.8(1) with regard to the maximum term, this conflict would not
exist. Instead, however, the Legislature specifically stated that the
minimum sentence must fall within the range provided in the guidelines.
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strained approach to reconciling the statutes, however,
because I disagree with the majority’s interpretation of
MCL 333.7413(2). I think that, in the context of the
statutory scheme as a whole, the better interpretation
of MCL 333.7413(2) is that it only permits the doubling
of the penalties provided in the controlled substances
act and not the minimum sentencing ranges provided in
the Code of Criminal Procedure.
In order to reach what I believe is the proper inter-
pretation of MCL 333.7413(2), it is useful to consider
the history of that provision. When the controlled
substances act was adopted into law in 1978, there were
no statutory sentencing guidelines and no statutorily
required minimum sentences for most offenses. See
People v Primer, 444 Mich 269, 278 n 11; 506 NW2d 839
(1993) (C
AVANAGH
, J., dissenting). To the extent that
statutorily provided minimum sentences existed for
drug offenses, they were provided within the controlled
substances act itself, and the minimum sentences were
mandatory. Id. In other words, at the time that MCL
333.7413(2) became law, the only “otherwise autho-
rized” terms to which MCL 333.7413(2) could have been
referring were those maximum sentences and, for a few
The majority further argues that the instructions in MCL 777.21(4)
for calculating minimum sentences under MCL 333.7413(2) suggest that
“the Legislature intended for the recidivist aspect of the subsequent drug
offense to be accounted for by enhancing both the defendant’s minimum
and maximum sentences pursuant to [MCL 333.7413(2)].” Ante at
730-731. I disagree. I suggest, as an alternative, that the Legislature’s
provision of instructions in the sentencing guidelines for how to calculate
minimum sentences for offenses under MCL 333.7413(2) merely demon-
strates that the Legislature intended minimum sentences for repeat drug
offenders to be calculated under the sentencing guidelines. Nevertheless,
I agree with the majority that “MCL 777.21(4) simply provides the
methodology for a trial court to follow in calculating a defendant’s
minimum sentence guideline range” and does not provide dispositive
support for either of our positions. Ante at 728.
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offenses, mandatory minimum sentences provided in
the controlled substances act. It is clear that at that
time, the Legislature anticipated that the controlled
substances act would need to be construed in conjunc-
tion with the sentencing statutes in the Code of Crimi-
nal Procedure because the Legislature expressly at-
tempted to reconcile the Code of Criminal Procedure’s
habitual-offender-enhancement statutes, MCL 769.10,
769.11, and 769.12, with the controlled substances act.
7
Therefore, when MCL 333.7413(2) was adopted, it could
have been read to permit courts to double the maximum
and minimum sentences when the controlled sub-
stances act mandated both, but to permit courts to
double only the maximum sentence when the controlled
substances act provided only a maximum.
8
7
Each of the habitual-offender statutes states that “[i]f the subsequent
felony is a major controlled substance offense, the person shall be
punished as provided by part 74 of the public health code, 1978 PA 368,
MCL 333.7401 to 333.7461.” MCL 769.10(1)(c), 769.11(1)(c), and
769.12(1)(c).
8
For drug offenses that the controlled substances act provides manda-
tory minimums for, which are generally the major controlled substance
offenses, it may be arguable whether MCL 333.7413(2) would permit
doubling of the minimums as well as the maximums. The history of the
relationship between the habitual-offender statutes and mandatory mini-
mums is explained in Primer, 444 Mich at 278 n 11 (C
AVANAGH
,J.
dissenting):
“1978 PA 77, which first ‘excluded’ major controlled substance
offenses from the purview of the habitual offender provisions, did
not take effect unless and until 1977 HB 4190 was also enacted.
See 1978 PA 77, § 2. HB 4190 was eventually enacted into law as
1978 PA 147. See 1978 PA 77 (compiler’s note). 1978 PA 147
amended the Controlled Substances Act to provide for the first
time mandatory minimum terms of imprisonment for certain
drug-related offenses. The definition of ‘major controlled sub-
stance offense’ in the Code of Criminal Procedure corresponded to
the offenses for which the Legislature had in the Controlled
Substances Act mandated minimum terms of imprisonment.”
[Citation omitted.]
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Twenty years later, in 1998, the Legislature first
adopted statutory sentencing guidelines and amended
the relevant sentencing provisions in the Code of Crimi-
nal Procedure accordingly. It was only then that the
potential conflict between MCL 333.7413(2) and MCL
769.34(2) arose. As noted, where the new sentencing
guidelines directly conflicted with the controlled sub-
stances act, i.e., where the controlled substances act
provided mandatory minimums, the Legislature ex-
pressly reconciled the provisions. The Legislature did
not, however, expressly address how to reconcile MCL
333.7413(2) with the newly created sentencing guide-
lines,
9
and it therefore falls to this Court to harmonize
those provisions in light of the statutory scheme as a
whole, if possible.
When considered in this context, the sentencing
provisions in the Code of Criminal Procedure that were
enacted 20 years later, when the sentencing guidelines
themselves were adopted, are not inconsistent with
It may be arguable whether MCL 769.10(1)(c), 769.11(1)(c),
and 769.12(1)(c) were intended to permit the mandatory mini-
mums to be doubled, as well as the maximums, given that the
habitual-offender statutes themselves otherwise deal with maxi-
mum sentences. In light of this history, however, it seems possible
that the Legislature intended MCL 333.7413(2) to permit courts to
double both the maximum and the minimum when the controlled
substances act mandated both. It is further arguable whether the
sentencing guidelines would act as a limit on this authority today.
In any event, it is not necessary to reach this issue in this case
because the statute under which defendant was convicted and
sentenced does not provide a mandatory minimum and is not a
“major controlled substance offense,” as defined in MCL 761.2.
Therefore MCL 769.10(1)(c), 769.11(1)(c), and 769.12(1)(c) are not
applicable in this case.
9
This could be because the Legislature did not consider the provisions
to conflict, if the Legislature was operating under the assumption that
MCL 333.7413(2) only applied to, as it had up until that point, the
mandatory minimum and maximum sentences provided in the controlled
substances act.
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MCL 333.7413(2). The plain text of MCL 769.34(2)
makes clear that the Legislature contemplated that, for
all sentences to which the guidelines applied, the mini-
mum sentence should be calculated according to the
sentencing guidelines. This intent is not inconsistent
with MCL 333.7413(2) if that provision is read to refer
only to, as it did before the enactment of the sentencing
guidelines, the maximum, and perhaps minimum, pen-
alties expressly provided in the controlled substances
act.
10
Therefore, in order to harmonize the provisions and
read the text in light of the statutory scheme as a whole,
I would hold that, under MCL 769.34(2), a repeat drug
offender’s minimum sentence must be calculated (and
enhanced) using the sentencing guidelines, as provided
in the sentencing statutes in chapters IX and XVII of
the Code of Criminal Procedure. I would hold that, to
the extent that it is applicable in a given case, MCL
333.7413(2) may only be used to enhance the penalties
10
Using impressive linguistic gymnastics, the majority concludes that
the best understanding of MCL 333.7413(2) is that the “term otherwise
authorized” is not “exclusively the minimum sentence or the maximum
sentence, but it is the actual indeterminate sentence, which is defined by
both the minimum and maximum limits for that sentence.” Ante at 724.
I agree that this is one possible meaning of the phrase. But there are
other possible meanings that I find more plausible in the context of the
entire statutory sentencing scheme, particularly given that this provision
was enacted 20 years before the Legislature enacted statutory sentencing
guidelines within the indeterminate sentencing scheme. Indeed, through-
out the statutory scheme, the Legislature refers to a “term” as the
maximum (or minimum) amount of time for which an offender may be
imprisoned. See, e.g., MCL 333.7416(1)(a) and (3); MCL 333.16177(2)(b).
If the Legislature had intended to encompass both the maximum and
minimum terms otherwise authorized in the controlled substances act, it
is logical that the unmodified word “term” would be used in order to be
applicable to both. I do not think that the majority’s limited and exclusive
understanding of the word “term” best harmonizes MCL 333.7413(2)
with the statutory scheme as a whole.
742 484 M
ICH
718 [Aug
D
ISSENTING
O
PINION BY
C
AVANAGH
,J.
provided in the controlled substances act. Therefore, in
this case, I would hold that it was improper to find that
MCL 333.7413(2) authorized the sentencing court to
double defendant’s minimum sentence.
IV. CONCLUSION
In my judgment, the majority improperly interprets
the words and provisions of MCL 333.7413(2) outside
the context of the statutory scheme and achieves an
understanding of the statute that is inconsistent with
the law as a whole. Therefore, I respectfully dissent. I
would reverse the judgment of the Court of Appeals and
remand the case to the trial court for resentencing.
K
ELLY
, C.J., concurred with C
AVANAGH
,J.
2009] P
EOPLE V
L
OWE
743
D
ISSENTING
O
PINION BY
C
AVANAGH
,J.
A
CTIONS ON
A
PPLICATIONS
ACTIONS ON APPLICATIONS FOR
LEAVE TO APPEAL FROM THE
COURT OF APPEALS
Summary Disposition July 28, 2009:
S
YMONS V
P
RODINGER
, No. 137768. Pursuant to MCR 7.302(H)(1), in lieu
of granting leave to appeal, we reverse the judgment of the Court of
Appeals, and we reinstate the Calhoun Circuit Court’s order denying
defendant Dr. Robert Prodinger’s motion for judgment notwithstanding
the verdict. The trial court instructed the jury that its decision as to
defendant Dale Russell’s negligence would also determine Dr. Prod-
inger’s responsibility. Because Dr. Prodinger failed to object to that jury
instruction, he cannot now disclaim vicarious liability for Russell’s
negligence. Although the plaintiff did not plead a cause of action based on
vicarious liability against Dr. Prodinger in the complaint, the Court of
Appeals dissent correctly noted that under MCR 2.118(C)(1), issues that
are tried by express or implied consent of the parties, even though they
are not raised in the pleadings, are treated as if they had been raised in
the pleadings. Court of Appeals No. 269663.
Appeal Dismissed July 28, 2009:
S
MITH V
A
NSARA
R
ESTAURANT
G
ROUP
,I
NC
, No. 137164. On order of the
Chief Justice, a stipulation signed by counsel for the parties agreeing to
the dismissal of this application for leave to appeal is considered, and the
application for leave to appeal is dismissed with prejudice and without
costs. Court of Appeals No. 283826.
Leave to Appeal Denied July 28, 2009:
S
YMONS V
P
RODINGER
, No. 137967; Court of Appeals No. 269663.
In re W
ILLIAMS
(D
EPARTMENT OF
H
UMAN
R
ESOURCES V
S
MITH
), No. 138949;
Court of Appeals No. 288028.
In re KCS (S
TRAUB V
H
ELMUTH
), No. 139163; Court of Appeals No.
288824.
S
ALEM
T
OWNSHIP V
S
ALEM
S
PRINGS
, LLC, No. 139278; Court of Appeals
No. 292680.
Leave to Appeal Denied July 31, 2009:
V
ON
A
RX V
L
IVONIA
F
AMILY
P
HYSICIANS
, PC, No. 136868. By order of
October 27, 2008, the application for leave to appeal the June 3, 2008,
judgment of the Court of Appeals was held in abeyance pending the
A
CTIONS ON
A
PPLICATIONS
851
decision in Vanslembrouck v Halperin (Docket No. 135893). On order of
the Court, the order denying the application for leave to appeal in
Vanslembrouck having been issued on April 24, 2009, 483 Mich 965
(2009), the application is again considered, and it is denied, because we
are not persuaded that the questions presented should be reviewed by
this Court. Court of Appeals No. 268516.
M
ARKMAN
,J.(dissenting). I would grant leave to appeal for the reasons
set forth in Justice C
ORRIGAN
’s dissenting statement in Vanslembrouck v
Halperin, 483 Mich 965 (2009).
C
ORRIGAN
and Y
OUNG
, JJ. We join the statement of Justice M
ARKMAN
.
P
ERNELL V
A
LLSTATE
I
NSURANCE
C
OMPANY
, Nos. 138417 and 138418;
Court of Appeals Nos. 279825 and 279837.
M
ARKMAN
,J.(dissenting). I would grant leave to appeal to consider
whether the Court of Appeals properly extended Darnell v Auto-Owners
Ins Co, 142 Mich App 1 (1985), to hold defendant liable for plaintiff’s
personal protection insurance benefits after defendant began paying
those benefits, but then ceased after determining that another insurer
had priority. Because Darnell, supra at 12, considered a priority dispute
in the context of determining liability for attorney fees pursuant to MCL
500.3148, I question its relevance in determining liability for actual
benefits.
In re W
ELLONS
(D
EPARTMENT OF
H
UMAN
S
ERVICES V
W
ELLONS
), Nos.
139199 and 139266; Court of Appeals Nos. 288649 and 288648.
Reconsideration Granted July 31, 2009:
U
NIVERSITY OF
M
ICHIGAN
R
EGENTS V
T
ITAN
I
NSURANCE
C
OMPANY
,No.
136905. On order of the Court, the motion for reconsideration of this
Court’s November 26, 2008, order is considered, and it is granted. We
vacate our order dated November 26, 2008. On reconsideration, the
application for leave to appeal the June 5, 2008, judgment of the Court of
Appeals is considered, and it is granted. The parties shall include among
the issues to be briefed whether Liptow v State Farm Mut Automobile Ins
Co, 272 Mich App 544 (2006), and Cameron v Auto Club Ins Ass’n, 476
Mich 55 (2006), were correctly decided. Court of Appeals No. 276710.
W
EAVER
,J.(concurring). I concur fully in the order granting reconsid-
eration and leave to appeal in this case. I write separately to respond to
the dissent’s statements regarding the decision to grant reconsideration
in this case.
The dissent erroneously asserts that the justices voting to grant
reconsideration do so improperly. The dissent cites Peoples v Evening
News Ass’n, 51 Mich 11, 21 (1883), for the proposition that this Court is
precluded from granting rehearing or reconsideration when the compo-
sition of the Court has changed, absent any new arguments from the
parties in the case. However, contrary to the dissent’s assertions, this
Court merely stated in Peoples that a change in the composition of this
Court cannot be the basis for granting rehearing or reconsideration.
852 484 M
ICHIGAN
R
EPORTS
As such, if the composition of the Court changes, and the composition
becomes such that a majority of the Court sees a reason to grant
reconsideration, the majority is not precluded from granting reconsid-
eration. If, for instance, four justices on the newly composed Court
conclude that the challenged decision was erroneous, those justices can
vote to grant reconsideration. The same holds true whether the deciding
vote is a new justice who joined the Court after the challenged decision
was released or whether the deciding vote comes from a justice who voted
for the challenged decision and changed his or her mind after further
consideration.
This practice is consistent with MCR 2.119(F)(3), which creates a
“palpable error” standard for rehearing and reconsidering cases. It is up
to the moving party to show palpable error that would lead to a different
disposition in the case. If a majority of the Court is convinced by the
moving party, the Court has the discretion to grant rehearing or
reconsideration. Furthermore, while MCR 2.119(F)(3) states that a
motion for reconsideration generally will not be granted if the motion
only presents the same issues decided in the original disposition of the
case, MCR 2.119(F)(3) explicitly refrains from “restricting the discretion
of the court” to grant reconsideration.
Accordingly, I concur in the order to grant reconsideration and leave
to appeal.
Y
OUNG
,J.(dissenting). I dissent from the order granting plaintiffs’
motion for reconsideration in this case. Since the 19th century, “this
Court has adhered to the principle that a motion for rehearing should be
denied unless a party has raised an issue of fact or law that was not
previously considered but which may affect the outcome.”
1
We codified
this judicial practice in MCR 2.119(F)(3):
Generally, and without restricting the discretion of the court, a
motion for rehearing or reconsideration which merely presents the
same issues ruled on by the court, either expressly or by reason-
able implication, will not be granted. The moving party must
demonstrate a palpable error by which the court and the parties
have been misled and show that a different disposition of the
motion must result from correction of the error.
In this case, plaintiffs have not raised any new issues that may
properly be considered by this Court. Just as in their original application
for leave to appeal, plaintiffs contend that MCL 600.5821(4), which
exempts the state and its political subdivisions from the effect of statutes
of limitations when seeking recovery of certain costs, precludes the
application of the no-fault act’s one-year-back rule, MCL 500.3145(1).
1
United States Fidelity & Guaranty Co v Michigan Catastrophic
Claims Ass’n (On Rehearing), 484 Mich 1, 28 (2009) (USF&G)(Y
OUNG
,J.,
dissenting), citing Nichols, Shepard & Co v Marsh, 62 Mich 439, 440
(1886), and Thompson v Jarvis, 40 Mich 526, 526 (1879).
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CTIONS ON
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PPLICATIONS
853
Accordingly, plaintiffs continue to ask this Court to hold that Cameron v
Auto Club Ins Ass’n
2
was wrongly decided and to overrule Liptow v State
Farm Mut Automobile Ins Co.
3
The only new issue raised by plaintiffs in their motion for recon-
sideration is a policy-based argument regarding the economic effect of
the Court’s order given the state’s current fiscal crisis. However, this
Court is neither constitutionally permitted nor institutionally
equipped to conduct a cost-benefit analysis of statutes enacted by
elected legislators in the democratic political process.
4
Were we to do
so, we would cross the line into the legislative sphere in violation of the
separation of powers.
5
The concurring statement of Justice W
EAVER
mischaracterizes the
error analysis of MCR 2.119(F)(3). Under this rule, the Court may
grant rehearing or reconsideration only when there is “ ‘a palpable
error by which the court and the parties have been misled.’ ”
6
Plaintiffs
have not raised any new legal arguments in their motion for recon-
sideration. Rather, plaintiffs focus solely on the economic effect of the
statutes, a policy-based argument that cannot amount to palpable
error. Plaintiffs have cited nothing more than their disagreement with
prior courts’ application of the plain language of the relevant statutes,
plain language which could not mislead either the parties or this
Court.
There is one significant change since our November 26, 2008, denial
of leave: the composition of this Court. Justice H
ATHAWAY
unseated former
Chief Justice T
AYLOR
in the 2008 election and took office on January 1,
2009, thereby shifting the philosophical balance on the Court. There is no
palpable error, but there is a new philosophical majority.
Over a century ago, the justices of this Court wisely realized that such
a change is not a proper ground for reconsideration.
7
By circumventing
this principle, the new philosophical majority has sub silentio overruled
that long venerated precedent. In the short time since the composition of
this Court changed, those in the majority have exhibited a lack of judicial
restraint in acting upon prior orders and opinions of this Court with
which they disagree. They have taken this tack despite their prior
professed beliefs that the composition of the Court should not control its
2
476 Mich 55 (2006).
3
272 Mich App 544 (2006).
4
It is a well established principle that “policy decisions are properly left
for the people’s elected representatives in the Legislature.” Devillers v
Auto Club Ins Ass’n, 473 Mich 562, 589 (2005).
5
Id. at 591.
6
See USF&G,484Michat28n6(Y
OUNG
, J., dissenting) (citation
omitted).
7
Peoples v Evening News Ass’n, 51 Mich 11 (1883); see also USF&G,
484 Mich at 28 (Y
OUNG
, J., dissenting).
854 484 M
ICHIGAN
R
EPORTS
decisions.
8
Indeed, then-Justice K
ELLY
and Justices C
AVANAGH
and W
EAVER
all dissented from this Court’s prior order denying leave to appeal in this
case.
9
Thus, this Court’s order granting reconsideration is nothing more
than the new majority seizing upon this motion to vindicate some of its
members’ dissents. The “judicial restraint” and principles lauded previ-
ously by members of the new majority should not depend on the
composition of the Court.
I respectfully dissent.
C
ORRIGAN
, J. I join the statement of Justice Y
OUNG
.
Reconsideration Denied July 31, 2009:
G
ENESEE
F
OODS
S
ERVICES
,I
NC V
M
EADOWBROOK
,I
NC
, No. 137526. Leave to
appeal denied at 483 Mich 901. Reported below: 279 Mich App 649.
C
ORRIGAN
, J. I would grant the motion for reconsideration.
M
ARKMAN
,J.(dissenting). I would grant the motion for reconsideration
and reverse the Court of Appeals for the reasons set forth in both the
dissenting statements of Justice C
ORRIGAN
and myself to this Court’s
original order. Genesee Food Services, Inc v Meadowbrook, Inc, 483 Mich
907, 909, 910 (2009).
Summary Disposition August 6, 2009:
P
EOPLE V
D
OWDY
, No. 138351. Pursuant to MCR 7.302(H)(1), in lieu of
granting leave to appeal, we remand this case to the Court of Appeals for
consideration as on leave granted. Court of Appeals No. 287689.
K
ELLY
,C.J.(concurring). I concur in this Court’s order remanding the
case to the Court of Appeals for consideration as on leave granted because
there is no published caselaw governing the unusual factual circum-
stances presented. Justice Y
OUNG
generously puts forth a blueprint
showing how the Court of Appeals could decide the matter. But, I
question whether the pertinent section of the Sex Offenders Registration
Act
1
(SORA) can be applied to defendant given that he was unable to
register a residence. A person cannot be criminally liable for failing to do
8
See, e.g., Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 256
(2007) (K
ELLY
, J., dissenting) (“What has changed in that decade to
warrant a complete reversal in this law? There is but one answer, the
makeup of the Court. The law has not changed. Only the individuals
wearing the robes have changed.”); Paige v Sterling Hts, 476 Mich 495,
532-533 (2006) (C
AVANAGH
, J., dissenting) (“The only change has been the
composition of this Court. And unfortunately, this is the only reasonable
answer to the question why a decision from this Court decided just eight
years earlier and involving the same issue is now being overruled.”). See
also USF&G, 484 Mich at 29-30 (Y
OUNG
, J., dissenting), for further
examples of the new majority’s prior inconsistent protestations.
9
Univ of Michigan Regents v Titan Ins Co, 482 Mich 1074 (2008).
1
MCL 28.721 et seq.
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855
an act that he or she is incapable of performing.
2
Therefore, it appears
that the circuit court may have properly dismissed the charges against
defendant.
Defendant was convicted of crimes that required him to register and
report under SORA. Upon his release from prison, he resided at the
Volunteers of America (VOA) shelter in Lansing. He properly registered
the VOA shelter address through the Department of Corrections before
his release from prison.
3
After living at the VOA for about four years,
defendant was told that he could no longer stay there because of the
shelter’s policy to refuse services to convicted sex offenders.
Because defendant registered no other address, he was charged with
four counts of violating SORA: (1) one count of failing to register (a
felony),
4
(2) two counts of failing to comply with reporting duties (a
misdemeanor),
5
and (3) one count of refusing or failing to pay a
registration fee (a misdemeanor).
6
The district court bound him over for
2
Port Huron v Jenkinson, 77 Mich 414, 419 (1889); see also United
States v Dalton, 960 F2d 121 (CA 10, 1992); United States v Spingola, 464
F2d 909 (CA 7, 1972).
3
Justice Y
OUNG
is incorrect that defendant “falsely provided the
address of the soup kitchen where he ate meals but did not reside.”
Defendant resided at the VOA shelter for four years after being released
from prison, until he was told he could longer stay there. The prosecutor
has clearly stated in his brief before this Court and the Court of Appeals
that defendant resided at the VOA. The lower court record supports this.
For example, a VOA employee testified that defendant received services
at the shelter until they discovered he was a registered sex offender, at
which point he “no longer stayed at the VOA.” As another example: the
district court stated that defendant had until December 10 to report his
new address. SORA gives a defendant 10 days to register a change of
address. Defendant was required to leave the VOA at some time in
November. The December 10 date is meaningless unless defendant was
residing at the VOA 10 days before then. The district court based the
December 10 date on an assumption that defendant left his VOA
residence on the last day of November. All the parties in this case were
operating under the assumption that defendant resided at the VOA until
November 2006.
Defendant did not “initially register[]” a false address. He was
charged in this case because the VOA address, which was at one time
valid for SORA purposes, ceased to be his residence in November 2006
and he failed to register a new address.
4
MCL 28.729(1)(a).
5
MCL 28.729(2)(a).
6
MCL 28.729(4). Defendant was charged with this misdemeanor even
though the registration fee is waived if an individual is indigent. MCL
856 484 M
ICHIGAN
R
EPORTS
trial as charged. The circuit court determined that it was impossible for
defendant to comply with the SORA requirements and dismissed the
charges. Because all four charges against defendant have a willfulness
requirement, he cannot be guilty of any of them unless he acted willfully.
The pertinent provision of SORA is MCL 28.725(1). It reads:
An individual required to be registered under this act shall
notify the local law enforcement agency or sheriff’s department
having jurisdiction where his or her new residence or domicile is
located or the department post of the individual’s new residence or
domicile within 10 days after the individual changes or vacates his
or her residence, domicile, or place of work or education, including
any change required to be reported under [MCL 28.724(a)].
The felony charge against defendant is premised on the fact that he failed
to register a new residence. SORA defines residence as “that place at
which a person habitually sleeps, keeps his or her personal effects, and
has a regular place of lodging.”
7
It does not appear that the defendant
had a new residence to register once the VOA required him to leave the
shelter. Underpasses and park benches may be the places where defen-
dant “habitually sleeps,” but they hardly qualify as a “regular place of
lodging” under the statute.
It seems unreasonable to interpret the statute to require that a
homeless person register wherever his or her cardboard box happens to
be set up for the night.
8
City street corners fail to meet the statutory
definition of residence. First, a defendant must habitually sleep some-
where for it to be a residence.
9
For something to be habitual, it must be
more than a random occurrence or event.
10
Second, a place must be a
regular place of lodging to qualify as a residence. Again, defendant does
28.725b. Justice Y
OUNG
claims that the charges brought against defen-
dant are premised on the fact that he did not comply with the quarterly
reporting requirements of SORA. This is only partially accurate. Two of
the charges are for failure to report. The felony charge of failing to
register a change in address and the misdemeanor charge concerning the
fee have nothing to do with the quarterly reporting requirements.
7
MCL 28.722(g) (emphasis added).
8
Indeed, during the preliminary examination the prosecutor argued
that “[i]t’s the People’s position that [defendant] has an obligation...[to
register] if he is staying on MLK and Holmes in a cardboard box....
And if that changes every day, then he’s under obligation to go every day
and to tell them where he’s going to be.”
9
MCL 28.722(g).
10
A habit is (1) “an acquired pattern of behavior that has become
almost involuntary as a result of frequent repetition,” (2) “customary
practice or use,” or (3) “a particular practice, custom, or usage.” Random
House Webster’s College Dictionary (2001).
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857
not have a regular place of lodging if he is nomadically moving around the
city depending on the weather, availability of food, shelter, and other
resources.
Moreover, SORA prohibits a defendant from registering an address
that is not his or her true residence.
11
A defendant cannot register a place
as his or her residence unless that place qualifies as a residence under the
act. Defendant in this case would have violated the act by registering an
address, such as a temporary park bench, because a temporary park
bench does not meet the statutory requirement for a residence. Justice
Y
OUNG
’s interpretation of the statute creates a Catch-22 situation, which
would force defendant either to report a false residence and violate
SORA, or do nothing and violate SORA. Either way, it is impossible for
him to comply with the statute.
A defendant should not be excused from SORA requirements for
willfully avoiding the registration requirement by failing to establish a
residence. However, a defendant cannot be held to violate the act where
he cannot comply. Even if defendant in this case had registered “Greater
Lansing Area” with the police, this would not satisfy the residency
requirements of SORA. He simply had no residence to register. And
nothing indicates that he failed to establish a residence, shuffling from
park bench to highway to underpass to cardboard box, in an attempt to
avoid the registration requirements of SORA.
Therefore, I believe that the circuit court may have correctly dis-
missed the charges against defendant because it was impossible for him
to comply with SORA.
Y
OUNG
,J.(concurring). I concur in this Court’s order remanding this
case to the Court of Appeals for consideration as on leave granted. I write
separately to express my belief that the circuit court erred in dismissing
the various charges brought against defendant. Contrary to the expostu-
lations of Chief Justice K
ELLY
and Justice H
ATHAWAY
, defendant was not
charged with violating the Sex Offenders Registration Act (SORA)
1
because he is homeless or lacks a permanent residence. Rather, the
criminal charges lodged against defendant are premised upon the fact
that he made absolutely no effort to comply with the quarterly reporting
requirements of the SORA for three years.
Defendant is a convicted sex offender who has been homeless since his
release from prison in 2002. When defendant initially registered under
SORA, he falsely provided the address of the soup kitchen where he ate
meals but did not reside. Defendant last reported this address in 2003,
and has not reported or updated his address since.
2
11
MCL 28.727(6).
1
MCL 28.721 et seq.
2
Contrary to the concurring statement of Chief Justice K
ELLY
and the
dissenting statement of Justice H
ATHAWAY
, there is no evidence in the
record that defendant ever resided at the Volunteers of America (VOA)
address he initially provided to local law enforcement. Rather, a VOA
employee testified at the preliminary examination that defendant uti-
858 484 M
ICHIGAN
R
EPORTS
Defendant was charged with one felony count and three misdemeanor
counts relating to his failure to report in person to a local law enforce-
ment agency on a quarterly basis, to update his residence information,
and his failure to pay a reporting fee in violation of SORA. The district
court bound defendant over for trial as charged. The circuit court
dismissed the charges because it could not “see how a homeless person”
“with no place to go” could “comply with the terms of the act.” The
prosecution appealed to the Court of Appeals, which denied leave to
appeal.
I believe that the circuit court erred in dismissing the charges against
defendant. MCL 28.725a(3) and (4)
3
require a convicted sex offender to
report to the local law enforcement agency in the county in which he “is
domiciled or resides”
4
on a quarterly basis. These provisions require the
lized the agency’s services “mostly for meals” until the agency discovered
that defendant was a sex offender. While Chief Justice K
ELLY
would prefer
that the record read otherwise, the employee categorically did not testify
that defendant “resided at the VOA shelter for four years.” If defendant
registered the address, but did not habitually sleep there, then he
provided false or misleading information about his residence. Accord-
ingly, it appears from the record that defendant has never been in
compliance with MCL 28.725a(3) and (4).
3
At all relevant times, these provisions provided:
(3)...[A]n individual registered under this act who is not
incarcerated shall report in person to the local law enforcement
agency or sheriff’s department having jurisdiction where he or she
is domiciled or resides or to the department post in or nearest to
the county where he or she is domiciled or resides. The individual
shall present proof of domicile or residence and update any
information that changed since registration, including informa-
tion that is required to be reported under [MCL 28.724a]. An
individual registered under this act who is incarcerated...shall
report under this subsection not less than 10 days after he or she
is released.
(4)...[F]ollowing initial verification under subsection
(3),...anindividual required to be registered under this act who
is not incarcerated shall report in person to the local law enforce-
ment agency or sheriff’s department having jurisdiction where he
or she is domiciled or resides or to the department post in or
nearest to the county where he or she is domiciled or resides for
verification of domicile or residence as follows: [various regular
reporting dates for sex offenders convicted of certain crimes].
4
SORA defines “residence” for “registration and voting purposes”
as that place at which a person habitually sleeps, keeps his or her
personal effects, and has a regular place of lodging.... This
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859
individual to provide proof of domicile or residence and update any
information that must be provided by statute. MCL 28.725(1) further
provides that upon changing or vacating a residence or domicile, the
individual must notify the agency of the new residence or domicile within
10 days. The burden then shifts to the agency to verify the information
provided.
5
Certainly, there was nothing preventing defendant from complying
with the reporting requirements of MCL 28.725a(3) and (4) and inform-
ing law enforcement of his current living arrangements. It is undisputed
that defendant had not reported to any police agency since 2003. Con-
trary to Chief Justice K
ELLY
’s and Justice H
ATHAWAY
’s contentions, there
is nothing “absurd” about the state’s requirement that persons convicted
of sexual crimes periodically inform the police of their living arrange-
ments, even if they are homeless. The registration requirements of SORA
“are intended to provide law enforcement and the people of this state
with an appropriate, comprehensive, and effective means to monitor
those persons who pose such a potential danger.” MCL 28.721a. Law
enforcement’s knowledge that a homeless sexual offender is residing in a
city park, an abandoned building,
6
or within 1000 feet of school property
7
undoubtedly provides the police with the ability to monitor predators and
protect the public.
SORA requires a sex offender to provide proof of his residence or
domicile, but does not identify any exclusive method of providing such
proof. While defendant’s homelessness may have provided unusual
problems in proving his residence, the statute expressly contemplates
atypical living arrangements, permitting the Department of State Police
to specify other satisfactory means of proving proof of domicile or
residence. MCL 28.725a(8) provides:
An individual required to be registered under this act shall
maintain either a valid operator’s or chauffeur’s license issued
under the Michigan vehicle code...oranofficial state personal
identification card...withtheindividual’s current address. The
license or card may be used as proof of domicile or residence under
this section. In addition, the officer or authorized employee may
require the individual to produce another document bearing his or
section shall not be construed to affect existing judicial interpre-
tation of the term residence. [MCL 28.722(g).]
5
MCL 28.725a(6). When defendant was initially released from prison,
the substance of this provision was found in MCL 28.725a(5).
6
Defendant’s counsel represented that, since being released from
prison, defendant has lived at “shelters, wherever, city parks, abandoned
buildings, [or] places where people might let him stay for a day or two.”
Contrary to Justice H
ATHAWAY
’s recitation of the record, counsel did not
indicate that defendant “wanders from place to place...every day or
two.”
7
See MCL 28.733(f) and MCL 28.735.
860 484 M
ICHIGAN
R
EPORTS
her name and address, including, but not limited to, voter regis-
tration or a utility or other bill. The department may specify other
satisfactory proof of domicile or residence. [Emphasis added.]
In the event that a sex offender reported to the local law enforcement
agency and was truly unable to provide any of the statutorily enumerated
documents to prove his residence or domicile, the duty would fall to the
Department of State Police to devise some alternate verification method.
Contrary to Justice K
ELLY
’s assertion, my interpretation of the statute
does not “create[] a Catch-22 situation.” A defendant is required to
report in person to the local police and notify the police of his residence
or domicile, wherever that may be. The burden then shifts to the law
enforcement agency and the state police to decide how to verify the
defendant’s whereabouts for purposes of SORA.
8
I see nothing in SORA
that authorizes the state to penalize a defendant merely for being
homeless; rather, the statute penalizes the defendant’s failure to report
his residence or domicile with law enforcement. Accordingly, I concur in
this Court’s order remanding this case to the Court of Appeals for
consideration as on leave granted.
C
ORRIGAN
and M
ARKMAN
, JJ. We join the statement of Justice Y
OUNG
.
H
ATHAWAY
,J.(dissenting). I would deny leave to appeal because I
believe that the prosecutor failed to present sufficient evidence to bind
defendant over for trial on the charges. The prosecutor claims on appeal
that the trial court erred in dismissing the charges against defendant.
Specifically, defendant was charged with the following four counts related
to his alleged failure to comply with the Sex Offenders Registration Act
(SORA), MCL 28.721 et seq.: (1) failure to inform authorities of a new
address as required by MCL 28.725(1); (2) and (3) failure to verify an
address quarterly in violation of MCL 28.725a; and (4) failure to pay the
registration fee within 90 days of reporting, in violation of MCL
28.725a(7) or MCL 28.727(1).
In order to sustain any of the counts, the prosecution must demon-
strate that, during the period alleged in the information, defendant had
a residence or domicile as defined by the statute. See MCL 28.725(1);
MCL 28.725a; MCL 28.727.
1
SORA defines “residence” as “that place at
which a person habitually sleeps, keeps his or her personal effects, and
has a regular place of lodging.” MCL 28.722(g). Though SORA does not
define “domicile,” the word is generally taken to mean a place where a
8
MCL 28.725a(8).
1
The provisions relating to counts one through three expressly refer to
the assumed existence of a residence or domicile. Without proving a
residence or domicile, the prosecutor cannot establish a violation of the
provisions. The provisions related to the registration fee in count four are
tied to the registration and reporting requirements. See MCL 28.725a(7);
MCL 28.727(1). Again, the registration and reporting requirements are
premised on having a domicile or residence to report or register. Because
the prosecutor failed to establish that defendant had a domicile or
residence, defendant cannot be held to have violated the fee requirement.
A
CTIONS ON
A
PPLICATIONS
861
person has his or her true, fixed, and permanent home and principal
establishment, to which, whenever absent therefrom, he or she intends to
return. See MCL 141.609(1); Hartzler v Radeka, 265 Mich 451, 452
(1933).
The entirety of the prosecutor’s proofs consisted of allegations that
defendant, a homeless person, registered his address as the Volunteers of
America shelter upon being discharged from prison, then left the shelter
in 2006 without registering or reporting a new address. It is not clear
whether the prosecutor is alleging that defendant actually resided at the
shelter during the relevant period or merely received services, such as
food, at the shelter. Assuming that the prosecutor is alleging that
defendant merely received services at the shelter and did not actually
“reside” there as defined by the statute, the prosecutor has failed to
establish that defendant had a residence or domicile during the relevant
period. If the prosecutor cannot demonstrate the existence of a residence
or domicile, all four charges against defendant must be dismissed because
each is premised on having a residence or domicile.
2
Assuming that the prosecution is alleging that defendant resided at
the shelter during the relevant period, and thus was required to register
and periodically report that address, it presents insufficient evidence on
the matter. The manager of the shelter testified at the preliminary
examination that defendant received services at the shelter until Novem-
ber 2006, when he was asked to leave. For his part, defendant maintains
that, since his release from prison, he has been homeless and wanders
from place to place—such as abandoned buildings, parks, and shelters—
every day or two. Although it might well be stated that defendant
“stayed” at the shelter in question for a period, such a bare assertion does
not establish a domicile or residence under the statute. The prosecutor
has the burden of presenting evidence on every element of the offense.
The record evidence indicates that the prosecutor has failed to do so. The
trial court recognized that the prosecution presented insufficient evi-
dence of a residence or domicile as defined in the statute and dismissed
the charges. The Court of Appeals denied leave, and I would as well.
3
2
Whether defendant registered a false address when he registered the
address of the homeless shelter in Lansing has no bearing on whether
defendant committed the charged offenses. Even assuming that defen-
dant registered a false address when he registered the address of the
shelter, the prosecution cannot prove that defendant committed the
charged acts without proving that he had a domicile or residence during
the period in question.
3
This is not to say that a homeless person by definition can never have
a residence or domicile, only that the prosecution failed to prove that this
particular defendant did. Furthermore, to hold that individuals who have
no residence or domicile must abide by the requirement to register or
report one’s residence or domicile is an unlawful and absurd proposition.
See Port Huron v Jenkinson, 77 Mich 414, 419 (1889) (stating that “[n]o
legislative or municipal body has the power to impose the duty of
862 484 M
ICHIGAN
R
EPORTS
In closing, I note that the purpose of SORA is wise. Consequently, I
would urge the Legislature to follow the lead of many other states in
formulating a provision with which a homeless person who does not have
a domicile or residence could readily comply.
Appeal Dismissed August 6, 2009:
D
IXON V
C
HRYSLER
LLC, No. 138101. On order of the Chief Justice, a
stipulation signed by counsel for the parties agreeing to the dismissal of
this application for leave to appeal is considered, and the application for
leave to appeal is dismissed with prejudice and without costs. Court of
Appeals No. 286261.
Leave to Appeal Denied August 6, 2009:
P
EOPLE V
T
RICE
, No. 136763; Court of Appeals No. 284520.
P
EOPLE V
P
ANNELL
, No. 136955. On order of the Court, the application
for leave to appeal the July 3, 2008, order of the Court of Appeals is
considered, and it is denied without prejudice to the defendant filing a
request in the Wayne Circuit Court, pursuant to MCR 6.433(C)(3), for an
order directing transcription of the October 27, 2000, hearing on the
defendant’s motion to quash, the November 29, 2000, hearing on the
motion for severance, the January 17, 2001, hearing on the motion for
trial counsel to withdraw, and the May 8, 2001, hearing on the motion for
a change of venue. The circuit court shall order production of these
transcripts, if it finds that the defendant has demonstrated good cause for
doing so. In the event that the transcripts are prepared, the clerk must
provide copies to the defendant. We do not retain jurisdiction. Court of
Appeals No. 282407.
P
EOPLE V
T
ERRELL
, No. 136992; Court of Appeals No. 285186.
P
EOPLE V
G
ILES
, No. 137063; Court of Appeals No. 275207.
P
EOPLE V
M
C
C
ONNELL
, No. 137157; Court of Appeals No. 284617.
P
EOPLE V
B
ISKNER
, No. 137198; Court of Appeals No. 278006.
A
TLANTIC
N
ATIONAL
T
RUST
,LLCvM
IDWEST
M
ACHINE
T
ECHNOLOGIES
, LLC,
No. 137213; Court of Appeals No. 273083.
P
EOPLE V
D
UCKETT
, No. 137348; Court of Appeals No. 283792.
P
EOPLE V
C
ARTER
, No. 137438; Court of Appeals No. 286188.
P
EOPLE V
G
RIFFIN
, No. 137494; Court of Appeals No. 282160.
performing an act upon any person which it is impossible for him to
perform, and then make his non-performance of such duty a crime”).
A
CTIONS ON
A
PPLICATIONS
863
P
EOPLE V
A
LEX
L
EWIS
, No. 137603. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 285159.
H
ATHAWAY
,J.(not participating). I recuse myself and will not participate
in this case because I was the presiding trial judge. See MCR 2.003(B).
P
EOPLE V
B
AL
, No. 137669; Court of Appeals No. 280601.
P
EOPLE V
J
OHNSON
, No. 137694. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 287060.
P
EOPLE V
L
OVEJOY
, No. 137783. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 287719.
P
EOPLE V
G
ERALD
H
OWARD
, No. 137817. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 284153.
P
EOPLE V
O
MAR
G
ATES
, No. 137819. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 287542.
P
EOPLE V
T
HOMAS
, No. 137833. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 286226.
P
EOPLE V
N
ATHAN
J
ONES
, No. 137836. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 285580.
P
EOPLE V
C
OOLEY
, No. 137845; Court of Appeals No. 285743.
P
EOPLE V
M
ICHAEL
C
LARK
, No. 137848. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 285300.
P
EOPLE V
J
AMES
M
OORE
, No. 137850. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 287613.
P
EOPLE V
T
IMOTHY
L
EWIS
, Nos. 137853 and 137854; Court of Appeals
Nos. 277353 and 277355.
P
EOPLE V
Y
OUNG
, No. 137861. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 287538.
P
EOPLE V
W
INGEART
, No. 137862. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 283378.
P
EOPLE V
D
ESMYTHER
, No. 137869. The defendant’s motion for relief
from judgment is prohibited by MCR 6.502(G). Court of Appeals No.
285262.
864 484 M
ICHIGAN
R
EPORTS
P
EOPLE V
M
ICHAEL
M
OORE
, No. 137874. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 287450.
P
EOPLE V
L
EGRONE
, No. 137881. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 285465.
P
EOPLE V
B
RADFORD
, No. 137887. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 288004.
P
EOPLE V
S
MITH
, No. 137892. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 284459.
P
EOPLE V
G
RAY
, No. 137894. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 286606.
P
EOPLE V
W
ELLS
, No. 137897. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 285058.
P
EOPLE V
L
ITTLETON
, No. 137898. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 284368.
P
EOPLE V
J
OBEY
H
ENDERSON
, No. 137911; Court of Appeals No. 287753.
P
EOPLE V
C
HRISTOPHER
H
OWARD
, No. 137912. The defendant has failed
to meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 283939.
P
EOPLE V
H
ANN
, No. 137913; Court of Appeals No. 286812.
P
EOPLE V
C
ADOTTE
, No. 137914. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 286900.
P
EOPLE V
T
YLER
, No. 137917. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 286282.
P
EOPLE V
R
ICHARDSON
, No. 137923. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 285554.
P
EOPLE V
B
OLING
, No. 137933. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 285014.
P
EOPLE V
B
OWMAN
, No. 137936. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 286761.
A
CTIONS ON
A
PPLICATIONS
865
P
EOPLE V
M
ABEN
, No. 137937. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 285922.
P
EOPLE V
R
IDDLE
, No. 137938. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 286403.
P
EOPLE V
S
EVERE
, No. 137942. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 287347.
P
EOPLE V
S
HAWVER
, No. 137983. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 284582.
P
EOPLE V
T
AYLOR
, No. 138000. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 286184.
P
EOPLE V
P
ERRY
, No. 138001; Court of Appeals No. 285017.
P
EOPLE V
M
IDGETT
, No. 138004; Court of Appeals No. 278952.
P
EOPLE V
K
INT
, No. 138013. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 287853.
P
EOPLE V
I
VANOVA
, No. 138015. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 287118.
P
EOPLE V
W
HITE
, No. 138025. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 284484.
P
EOPLE V
P
ORTIS
, No. 138038. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 286108.
L
A
F
OUNTAIN V
D
EPARTMENT OF
C
ORRECTIONS
, No. 138040; Court of Ap-
peals No. 286996.
P
EOPLE V
S
WAIN
, No. 138049. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 288133.
P
EOPLE V
H
AY
, No. 138051. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 287454.
S
TANNY V
P
ROGRESSIVE
M
ICHIGAN
I
NSURANCE
C
OMPANY
, No. 138053; Court
of Appeals No. 280916.
P
EOPLE V
F
LOWERS
, No. 138056; Court of Appeals No. 279219.
866 484 M
ICHIGAN
R
EPORTS
P
EOPLE V
S
HARP
, No. 138058. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 286860.
P
EOPLE V
W
OODS
, No. 138063. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 287863.
P
EOPLE V
N
EELY
, No. 138068. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 286445.
P
EOPLE V
S
IEBERT
, No. 138081. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 287629.
P
EOPLE V
M
YERS
, No. 138094. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 285663.
P
EOPLE V
I
RWIN
, No. 138103. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 287348.
P
EOPLE V
R
YDER
, No. 138106. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 287785.
P
EOPLE V
E
DWARDS
, No. 138109. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 287492.
P
EOPLE V
S
TAMPS
, No. 138120. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 288637.
P
EOPLE V
J
USTICE
, No. 138133. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 287709.
P
EOPLE V
W
ESTERFIELD
, No. 138143. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 288031.
P
EOPLE V
S
TANLEY
D
AVIS
, No. 138150. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 285989.
P
EOPLE V
V
ARY
, No. 138152. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 284110.
P
EOPLE V
P
ACE
, No. 138166. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 288543.
A
CTIONS ON
A
PPLICATIONS
867
P
EOPLE V
S
COTT
, No. 138174. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 285595.
P
EOPLE V
H
UDSON
, No. 138178. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 285111.
P
EOPLE V
W
ATERS
, No. 138184. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 288246.
P
EOPLE V
J
ENKINS
, No. 138198. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 287449.
P
EOPLE V
L
EONARD
C
ROSS
, No. 138199. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 288139.
P
EOPLE V
D
ENNIS
, No. 138202. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 287595.
P
EOPLE V
F
ORD
, No. 138228; Court of Appeals No. 280087.
P
EOPLE V
Z
IEGLER
, No. 138229; Court of Appeals No. 278270.
P
EOPLE V
L
AMBETH
, No. 138230; Court of Appeals No. 278519.
P
EOPLE V
A
LBERT
C
LARK
, No. 138240. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 287407.
P
EOPLE V
L
OCKLEAR
, No. 138250. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 287820.
P
EOPLE V
C
LAYTON
, No. 138277; Court of Appeals No. 278460.
P
EOPLE V
H
ARRIGER
, No. 138279. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 286098.
P
EOPLE V
B
ROOKS
, No. 138286. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 289519.
P
EOPLE V
M
C
Q
UIRTER
, No. 138298. The defendant’s motion for relief
from judgment is prohibited by MCR 6.502(G). Court of Appeals No.
287790.
P
EOPLE V
W
ATTS
, No. 138305; Court of Appeals No. 280319.
P
EOPLE V
T
HOMPSON
, No. 138318. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 288715.
868 484 M
ICHIGAN
R
EPORTS
P
EOPLE V
B
ETTS
, No. 138344. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 289349.
A
UXIER V
N
ATIONWIDE
P
ROPERTY &
C
ASUALTY
I
NSURANCE
C
OMPANY
, No.
138399; Court of Appeals No. 281793.
B
RICKER V
A
U
S
ABLE
V
ALLEY
C
OMMUNITY
M
ENTAL
H
EALTH
S
ERVICES
,No.
138413; Court of Appeals No. 281736.
P
EOPLE V
G
EE
, No. 138419; Court of Appeals No. 281378.
G
REEN
T
REE
S
ERVICING,
LLCvF
UTERNICK
, Nos. 138449 and 138450;
Court of Appeals Nos. 274936 and 279215.
S
CIO
T
OWNSHIP V
B
ATESON
, No. 138455; Court of Appeals No. 287567.
In re R
EINSTATEMENT
P
ETITION OF
M
ACK
, No. 138486; ADB: 08-4-RP.
P
EOPLE V
K
INSEY
, No. 138490; Court of Appeals No. 281765.
P
EOPLE V
M
URPHY
, No. 138491; reported below 282 Mich App 571.
P
EOPLE V
S
CHIMKE
, No. 138495; Court of Appeals No. 289193.
P
EOPLE V
G
REEN
, No. 138514; Court of Appeals No. 279519.
M
ITCHELL V
I
NGHAM
C
IRCUIT
J
UDGE
, No. 138515; Court of Appeals No.
288679.
C
LEMENCE V
D
EPARTMENT OF
L
ABOR &
E
CONOMIC
G
ROWTH
, No. 138518;
Court of Appeals No. 288229.
P
EOPLE V
M
AGEE
, No. 138519; Court of Appeals No. 277029.
E
NGEL
M
ANAGEMENT
C
OMPANY
,I
NC V
F
ORD
M
OTOR
C
REDIT
C
OMPANY
,No.
138530; Court of Appeals No. 279868.
P
EOPLE V
M
URRAY
, No. 138533; Court of Appeals No. 281767.
J
ONES V
D
EPARTMENT OF
C
ORRECTIONS
, No. 138540; Court of Appeals No.
288226.
M
ANSKE V
D
EPARTMENT OF
T
REASURY
, No. 138556; Court of Appeals No.
281988.
P
EOPLE V
H
UBBARD
, No. 138564; Court of Appeals No. 290021.
P
EOPLE V
C
ARICO
, No. 138565; Court of Appeals No. 277973.
P
EOPLE V
P
ATTERSON
, No. 138574; Court of Appeals No. 289420.
In re E
STATE OF
D
OSS
(D
OSS V
D
OSS
), No. 138578; Court of Appeals No.
277982.
C
ITY OF
P
ONTIAC V
M
ICHIGAN
A
SSOCIATION OF
P
OLICE
, No. 138579; Court of
Appeals No. 280919.
A
CTIONS ON
A
PPLICATIONS
869
P
EOPLE V
M
OTT
, No. 138583; Court of Appeals No. 280671.
P
EOPLE V
W
ESTBROOK
, No. 138588; Court of Appeals No. 282397.
G
LOVER V
P
ONTIAC
H
OUSING
C
OMMISSION
, No. 138590; Court of Appeals
No. 281737.
P
EOPLE V
R
EED
, No. 138591; Court of Appeals No. 280780.
P
EOPLE V
L
ANCE
J
ONES
, No. 138593; Court of Appeals No. 282242.
P
EOPLE V
V
IRDEN
, Nos. 138594, 138595, and 138596; Court of Appeals
Nos. 281307, 281876, and 281877.
P
EOPLE V
B
ONDIE
, No. 138600; Court of Appeals No. 289134.
P
EOPLE V
M
OTLEY
, No. 138607; Court of Appeals No. 280393.
T
OWNSEND V
K
ASLE
S
TEEL
C
ORPORATION
, No. 138608; Court of Appeals
No. 278645.
P
EOPLE V
S
TANLEY
, No. 138611; Court of Appeals No. 276208.
P
EOPLE V
D
YE
, No. 138613; Court of Appeals No. 280645.
P
EOPLE V
D
ESHON
M
ILLER
, No. 138616; Court of Appeals No. 281466.
P
EOPLE V
O’B
RIEN
, No. 138624; Court of Appeals No. 289542.
S
YROWATKA V
W
ASHTENAW
C
OUNTY
, No. 138635; Court of Appeals No.
277336.
P
EOPLE V
G
UEBARA
, No. 138640; Court of Appeals No. 290068.
M
EISNER &
A
SSOCIATES
,PCvS
TAMPER &
C
OMPANY
, No. 138642; Court of
Appeals No. 280190.
P
EOPLE V
P
AROLE
B
OARD
, No. 138643; Court of Appeals No. 288473.
P
EOPLE V
H
ANSON
, No. 138645; Court of Appeals No. 280299.
P
EOPLE V
L
AVERNE
, No. 138647; Court of Appeals No. 281147.
B
ROWN V
D
EPARTMENT OF
C
ORRECTIONS
, No. 138648; Court of Appeals No.
289220.
R
ODRIGUEZ V
M
ERCHANT
, No. 138662; Court of Appeals No. 288495.
P
EOPLE V
G
OMEZ
, No. 138671; Court of Appeals No. 280808.
P
EOPLE V
G
ALLARDO
, No. 138672; Court of Appeals No. 289904.
P
EOPLE V
I
VERSON
, No. 138675; Court of Appeals No. 290314.
P
EOPLE V
R
ONALD
L
EWIS
, No. 138682; Court of Appeals No. 283091.
P
EOPLE V
A
NTHONY
G
ATES
, No. 138686; Court of Appeals No. 283640.
P
EOPLE V
A
TKINS
, No. 138698; Court of Appeals No. 281377.
870 484 M
ICHIGAN
R
EPORTS
P
EOPLE V
M
C
A
LISTER
, No. 138700; Court of Appeals No. 290455.
P
EOPLE V
C
ARPENTER
, No. 138704; Court of Appeals No. 289798.
P
EOPLE V
K
ILMER
, No. 138705; Court of Appeals No. 289935.
H
ARKNESS V
G
RIMM &
K
ORNAK
, No. 138706; Court of Appeals No. 288504.
H
ATHAWAY
,J.(not participating). I recuse myself and will not be
participating in this case because I have a close personal friendship with
a defendant. See MCR 2.003(B).
P
EOPLE V
P
ILLARS
, No. 138707; Court of Appeals No. 280812.
H
ATHAWAY
,J.(not participating). I recuse myself and will not partici-
pate in this case because I was the presiding trial judge. See MCR
2.003(B).
P
EOPLE V
S
TRAWTHER
, No. 138708; Court of Appeals No. 282936.
S
HELSON V
S
CHMIDT
I
NDUSTRIES,
I
NC
, No. 138709; Court of Appeals No.
281123.
P
EOPLE V
A
NDERSON
, No. 138711; Court of Appeals No. 283131.
P
EOPLE V
W
IGGINS
, No. 138715; Court of Appeals No. 283158.
P
EOPLE V
M
ARQUEST
H
ENDERSON
, No. 138719; Court of Appeals No.
289388.
P
EOPLE V
S
T
O
NGE
, No. 138720; Court of Appeals No. 288237.
H
AWKINS V
D
EPARTMENT OF
C
ORRECTIONS
, No. 138723; Court of Appeals
No. 289953.
W
ARREN V
D
ELPHI
C
ORPORATION
, No. 138734; Court of Appeals No.
289515.
P
EOPLE V
E
AGLE
, No. 138736; Court of Appeals No. 289917.
P
EOPLE V
A
NTONIO
H
ARRIS
, No. 138738. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 290430.
P
EOPLE V
M
C
G
EE
, No. 138739; Court of Appeals No. 286881.
P
EOPLE V
B
ONNER
, No. 138752; Court of Appeals No. 289360.
P
EOPLE V
E
DWIN
H
ALL
, No. 138753; Court of Appeals No. 283217.
P
EOPLE V
J
EFFERSON
, No. 138754; Court of Appeals No. 283609.
P
EOPLE V
D
UNBAR
, No. 138755; Court of Appeals No. 281379.
H
ATHAWAY
,J.(not participating). I recuse myself and will not partici-
pate in this case because I was the presiding trial judge. See MCR
2.003(B).
W
ULFEN V
M
ONTMORENCY
C
OUNTY
, No. 138766; Court of Appeals No.
281930.
A
CTIONS ON
A
PPLICATIONS
871
R
EED V
O
FFICER
S
ITARSKI
, Nos. 138767 and 138768, Court of Appeals
Nos. 281041 and 281403.
P
EOPLE V
P
ERREO
, No. 138773; Court of Appeals No. 283450.
P
EOPLE V
R
ODRIGUEZ
, No. 138780; Court of Appeals No. 290507.
P
EOPLE V
F
IGUEROA
, No. 138781; Court of Appeals No. 282020.
P
EOPLE V
L
A
R
OCK
, No. 138790; Court of Appeals No. 281381.
F
ARM
B
UREAU
I
NSURANCE
C
OMPANY V
G
RANGE
I
NSURANCE
C
OMPANY
,No.
138791; Court of Appeals No. 289054.
K
APUSTIJ V
C
ITY OF
H
AMTRAMCK
, No. 138793; Court of Appeals No.
289720.
K
ELLY
,C.J.(not participating). I do not participate in this case because
of my relationship to the plaintiff’s examining physician.
H
ATHAWAY
, J. I would grant leave to appeal.
P
EOPLE V
M
C
C
LINTON
, No. 138794; Court of Appeals No. 277695.
P
EOPLE V
C
HARLES
, No. 138803; Court of Appeals No. 283452.
F
ITZPATRICK V
B
ETANZOS
, No. 138807; Court of Appeals No. 282719.
P
EOPLE V
R
ODERICK
C
ROSS
, No. 138811; Court of Appeals No. 282033.
P
EOPLE V
K
EVIN
H
ARRIS
, No. 138812; Court of Appeals No. 289663.
B
AUMGARD V
F
ARMERS
I
NSURANCE
E
XCHANGE
, No. 138814; Court of Ap-
peals No. 281589.
In re W
ARD
R
EVOCABLE
T
RUST
(W
ARD
-T
ENBROEKE V
M
AC
K
ENZIE’S
A
NIMAL
S
ANCTUARY
,I
NC
), No. 138817; Court of Appeals No. 289622.
In re B
EDNARZ
T
RUST
(S
MIGIELSKI V
G
LANTY
), No. 138825; Court of
Appeals No. 289372.
P
EOPLE V
K
AUFMAN
, No. 138826; Court of Appeals No. 290435.
V
ERARDI V
C
OWLES
, No. 138831; Court of Appeals No. 282010.
P
EOPLE V
B
LACKSHERE
, No. 138834; Court of Appeals No. 281463.
P
EOPLE V
L
ATIMER
, No. 138837; Court of Appeals No. 290209.
P
EOPLE V
W
INDLESS
, No. 138841; Court of Appeals No. 281995.
P
EOPLE V
O
RLANDO
D
AVIS
, No. 138844; Court of Appeals No. 290632.
P
EOPLE V
P
HILLIPS
, No. 138852; Court of Appeals No. 289768.
F
ENTON V
F
ARM
B
UREAU
G
ENERAL
I
NSURANCE
C
OMPANY
, No. 138860; Court
of Appeals No. 279673.
N
EW
C
ENTER
P
LUMBING &
H
EATING
,I
NC V
H
ARVARD
E
NGINEERING &
C
ON-
STRUCTION
, No. 138861; Court of Appeals No. 283314.
872 484 M
ICHIGAN
R
EPORTS
P
EOPLE V
V
ERONICA
M
ILLER
, No. 138873; Court of Appeals No. 281874.
P
EOPLE V
B
RYANT
, No. 138876; Court of Appeals No. 281964.
P
EOPLE V
H
ATTEN
, No. 138879; Court of Appeals No. 290902.
P
ARKER V
A
TTORNEY
G
ENERAL
, No. 138896; Court of Appeals No. 287463.
L
INDSEY V
D
AIMLER
C
HRYSLER
C
ORPORATION
, No. 138905; Court of Appeals
No. 288834.
P
EOPLE V
B
ARNES
, No. 138907; Court of Appeals No. 284886.
P
HILLIP V
S
TATE
F
ARM
M
UTUAL
A
UTOMOBILE
I
NSURANCE
C
OMPANY
, No.
138922; Court of Appeals No. 282101.
In re T
AVORN
(D
EPARTMENT OF
H
UMAN
S
ERVICES V
T
AVORN
), Nos. 139300,
139301, and 139302; Court of Appeals Nos. 287495, 287497, and 287498.
Reconsideration Denied August 6, 2009:
P
EOPLE V
L
E
, No. 136766. Leave to appeal denied at 482 Mich
1064. Court of Appeals No. 282786.
P
EOPLE V
G
AMBLE
, No. 137017. Leave to appeal denied at 483 Mich
976. Court of Appeals No. 276034.
P
EOPLE V
W
ILLIAM
H
ALL
, No. 137151. Leave to appeal denied at 483
Mich 1016. Court of Appeals No. 284785.
P
EOPLE V
C
OLLINS
, No. 137387. Leave to appeal denied at 483 Mich
977. Court of Appeals No. 277098.
P
EOPLE V
B
ORGES
, No. 137677. Leave to appeal denied at 483 Mich
962. Court of Appeals No. 278100.
P
EOPLE V
M
C
N
AMEE
, No. 137719. Leave to appeal denied at 483 Mich
977. Court of Appeals No. 288097.
A
LLIED
P
ROPERTY AND
C
ASUALTY
I
NSURANCE
C
OMPANY V
M
ICHIGAN
C
ATA-
STROPHIC
C
LAIMS
A
SSOCIATION
, No. 137761. Leave to appeal denied at 483
Mich 962. Court of Appeals No. 277765.
P
EOPLE V
D
UFRESNE
, No. 137830. Leave to appeal denied at 483 Mich
978. Court of Appeals No. 273407.
P
EOPLE V
A
NTHONY
J
ONES
, No. 137858. Leave to appeal denied at 483
Mich 978. Court of Appeals No. 277854.
P
EOPLE V
B
OYLE
, No. 137900. Leave to appeal denied at 483 Mich
979. Court of Appeals No. 288199.
P
EOPLE V
A
DAMS
, No. 137959. Leave to appeal denied at 483 Mich
916. Court of Appeals No. 276845.
A
CTIONS ON
A
PPLICATIONS
873
P
EOPLE V
M
UNLIN
, No. 137978. Leave to appeal denied at 483 Mich
979. Court of Appeals No. 272019.
P
EOPLE V
C
ORTLAND
M
ILLER
, No. 138032. Leave to appeal denied at 483
Mich 979. Court of Appeals No. 281690.
P
EOPLE V
K
ING
, No. 138073. Leave to appeal denied at 482 Mich
980. Court of Appeals No. 279809.
P
EOPLE V
W
ILLIAMS
, No. 138089. Leave to appeal denied at 483 Mich
1019. Court of Appeals No. 279713.
P
EOPLE V
E
CKFORD
, No. 138145. Leave to appeal denied at 483 Mich
1022. Court of Appeals No. 279501.
874 484 M
ICHIGAN
R
EPORTS
S
PECIAL
O
RDERS
SPECIAL ORDERS
In this section are orders of the Court (other than
grants and denials of leave to appeal from the Court of
Appeals) of general interest to the bench and bar of the
state.
Orders Entered July 21, 2009:
P
ROPOSAL TO
E
STABLISH AND
R
EQUIRE
C
OMPLIANCE WITH
C
OURT
C
OLLECTIONS
P
ROGRAM AND
R
EPORTING
R
EQUIREMENTS
. On order of the Court, this is to
advise that the Court is considering adoption of an administrative
order that would require the State Court Administrator to establish
court collections program and reporting requirements and that would
require courts to comply with those requirements. Before the Court
determines whether the proposal should be adopted, changed before
adoption, or rejected, this notice is given to afford interested persons
the opportunity to comment on the form or the merits of the proposal
or to suggest alternatives. The Court welcomes the views of all. This
matter will be considered at a public hearing by the Court before a
final decision is made. The schedule and agendas for public hearings
are posted on the Court’s website at www.courts.mi.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
Enforcing court orders, including financial sanctions, is a responsibil-
ity of the courts that, if done effectively, enhances the courts’ integrity
and credibility while providing funds to assure victims are made whole
and support law enforcement, libraries, the crime victim’s rights fund,
and local governments. In order to improve the enforcement and collec-
tion of court-ordered financial sanctions, it is ordered that the State
Court Administrator establish court collections program requirements
and that all circuit courts, circuit court family divisions, district courts,
and municipal courts comply with those requirements. The State Court
Administrative Office shall enforce the requirements and assist courts in
adopting practices in compliance with those requirements.
1
In order to effectively monitor and measure the effect of collections
programs, it is ordered that the State Court Administrator establish
reporting requirements regarding outstanding receivables and collec-
1
In order to provide a context for commenting on this proposed admin-
istrative order, the current program requirements and components drafted
by SC AO and approved by the Court Collections Advisory Committee
are attached as an appendix. For more information regarding the Court
Collections Advisory Committee’s activities over the last five years, please
see the materials related to collections on the Court’s website at
http://courts.michigan.gov/scao/services/collections/collections.htm.
S
PECIAL
O
RDERS
1201
tions efforts undertaken by courts, including establishment of the
reporting format, method, and due dates. It is further ordered that all
circuit courts, circuit court family divisions, district courts, and munici-
pal courts comply with those requirements. The State Court Administra-
tive Office shall facilitate compliance with and enforce the requirements.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on these proposals may be sent to the
Supreme Court Clerk in writing or electronically by November 1, 2009, at
P.O. Box 30052, Lansing, MI 48909, or [email protected]. When
filing a comment, please refer to ADM File No. 2005-13. Your comments
and the comments of others will be posted at www.courts.mi.gov
/supremecourt/resources/administrative/index.htm.
APPENDIX
COURT COLLECTIONS PROGRAM REQUIREMENTS
• Each court must implement or have a collections program in place
that conforms to a model developed by the State Court Administrative
Office (SCAO) and is designed to improve collections through application
of best practices.
• Each court will submit to the SCAO an initial collections program
survey with information regarding the program.
• Courts shall report changes in their collections program when
requested by the SCAO.
• Courts that do not meet the minimum requirements for an adequate
collections program will prepare an action plan to implement program
components, with a timetable for intermediate and full implementation,
which should not exceed one year. Action plans will be submitted with the
collections program survey to the regional administrator for approval by the
state court administrator. The court will provide a progress report to the
regional administrator one month after implementation.
• The SCAO shall provide for periodic audits of the courts to verify
information reported above and confirm that the court is complying with
its reported program components. Compliance audit standards include:
6 To be in substantial compliance with program components, the
requirement must be met for at least 80 percent of the cases at that stage
of collection.
6 To be in partial compliance with program components, the require-
ment must be met for at least 50 percent of the cases at that stage of
collection.
6 To meet the requirements of a collections program model, a court
cannot be in less than partial compliance with any component, may be in
partial compliance with maximum of one component, and must be in
substantial compliance with all other components. If an audit reveals that a
court is not in compliance with a collections program, the court must submit
a corrective action plan to implement program components, with a timetable
for intermediate and full implementation, which should not exceed one year.
1202 484 M
ICHIGAN
R
EPORTS
Corrective action plans will be submitted to the regional administrator for
approval by the state court administrator. A follow-up compliance audit will
be performed within a year of implementation.
• The SCAO shall:
6 Make available on its collections website collections program re-
quirements and best practices.
6 Assist courts in implementing a program by providing training,
consultation, and technical assistance.
6 Provide courts with current collections data, which must include
collections rates and collections programs implemented by the courts. o
6 Ensure that appropriate training programs are in place to educate
all stakeholders.
COURT COLLECTIONS PROGRAM MODELS
Ideal
f Must consist of all 10 components
Satisfactory
f Must consist of components either 1 through 9 or 1 through 8
Adequate
fMust consist of components 1 through 7
These are the minimum requirements for each model. Court collec-
tions programs may have additional components not included in these
models.
Regardless of collections rates, a court that has implemented an ideal,
satisfactory, or adequate collections program is in compliance with the
Court Collections Program Requirements. A court that does not meet the
requirements for an adequate collections program is not in compliance
with the Court Collections Program Requirements and must prepare and
submit an action plan to become compliant.
COURT COLLECTIONS PROGRAM COMPONENTS — DETAILS
1. Staff or staff time dedicated exclusively to collections activities.
a. This may include court, funding unit, or contractual employees.
b. Collections staff perform the following functions:
i. Respond to all collections-related phone calls and written correspon-
dence.
ii. Ensure that financial assessments are properly entered into the
automated system.
iii. Ensure proper removal of discharged debts from the system.
iv. Use all available resources to locate litigants.
v. Review dockets for all judges, magistrates, and referees to deter-
mine if an individual who is delinquent will be present for a court
proceeding for any reason.
vi. Get jail release dates from the sheriff and make payment arrange-
ments with litigants before release.
S
PECIAL
O
RDERS
1203
vii. Make payment arrangements with litigants as they leave the
courtroom.
viii. Review and verify all financial statements to determine a liti-
gant’s ability to pay.
ix. Establish and monitor all installment payment plans.
x. Prepare wage assignments.
xi. Issue delinquency notices.
xii. Prepare orders to show cause.
xiii. Prepare bench warrants.
xiv. Prepare state income tax garnishments.
xv. Prepare cases for referral to outside agency for collections.
2. Enforcement of MCR 1.110 and communication of the expectation
of payment.
a. All correspondence and contact with the litigant refer to MCR
1.110, which states that payment is due at the time of assessment. In
addition, an estimated amount that the litigant will be expected to pay is
included in all correspondence. The court:
i. Informs litigants from the bench at the initial hearing or pretrial
that payment is due upon assessment and provides an estimated amount
due.
ii. Prints the text of MCR 1.110 on all notices to appear.
iii. Advises litigants at the probation screening of the date payment is
due and the amount of the expected payment.
b. The court educates the local legal community, as well as the general
public, that payment is required at the time of assessment.
3. Payment requirement on the day of assessment.
a. Litigants unable to pay in full on the day of sentencing or
disposition are expected to make some payment on the day of assessment.
In addition, they are required to complete an application/financial
statement for either an extension of time to pay or installment payments.
b. Discussions that relate to requests for additional time to pay,
installment payment plans, or wage assignments do not occur in the
courtroom. The litigant is led out of the courtroom to discuss payment
options with an individual who has been given the responsibility to set up
payment plans.
4. Application/financial statement information is verified and evalu-
ated to establish an appropriate payment plan.
a. Litigants are not automatically given time to pay. Before granting
additional time to pay or approval for participation in an installment
payment plan, the litigant is required to submit proof that he or she
needs more time to pay. The litigant is required to complete an applica-
tion or financial statement that the court analyzes to determine if extra
time to pay or an installment payment plan is justified.
b. Payment plans require the highest payment amounts in the
shortest period that the litigant can successfully make, considering the
amount owed and the litigant’s ability to pay.
c. If the court determines that an installment payment plan is
warranted, the litigant is required to sign an installment payment
1204 484 M
ICHIGAN
R
EPORTS
agreement. This document states that the litigant agrees to make
payments of the court-ordered assessments, and includes the following
information:
i. Total amount owed.
ii. Amount of installment payment.
iii. Payment intervals (weekly/biweekly/monthly).
iv. Specific due dates of each payment.
v. Date the balance should be paid in full.
vi. Statement detailing any sanctions that will be imposed if the
litigant fails to comply with the agreement.
vii. Litigant’s signature signifying his or her understanding of the
agreement.
5. Payment alternatives such as community service are available for
those who do not have the ability to pay.
a. Payment alternatives such as community service are not considered
unless the litigant is in jeopardy of failing to comply with the court order
and has demonstrated that he or she has exercised due diligence in
attempting to comply.
b. Payment alternatives may not be used to satisfy certain required
assessments (restitution, crime victim’s rights assessment, minimum
state cost, etc.).
6. Litigants are closely monitored for compliance, and actions such as
delinquency notices and wage assignments are taken promptly after
noncompliance.
a. The court has established a consistent time standard for initiating
enforcement action when a debt becomes past due. This time standard is
not so lengthy as to diminish the effectiveness of enforcement.
b. The court promptly notifies the litigant of delinquency.
c. The court requires a wage assignment for all litigants who are
employed and who are granted an installment payment plan; or when an
installment payment plan is granted to a litigant, he or she is required to
complete a wage assignment with the understanding that if a payment is
missed, the court will immediately send the wage assignment to the
employer.
7. Submit required receivables and collections reports to the SCAO
annually.
a. The SCAO has established deadlines and standards applicable to
the reports required from all circuit courts, circuit court family divisions,
district courts, and municipal courts.
b. The court reviews and utilizes these reports to monitor court
collections.
8. Promptly and consistently use statutorily permitted graduated
sanctions such as 20 percent late penalty, show cause hearings, bench
warrants, and/or state income tax garnishment/intercept.
a. The 20 percent late penalty is assessed as required by statute. In
addition, the court informs the litigant of the penalty.
b. If a litigant fails to respond to initial collections efforts, the court
sends an order to show cause that requires the litigant to come into court
S
PECIAL
O
RDERS
1205
to explain why he or she has not paid the court-ordered assessments. If
the litigant fails to appear as ordered, then a warrant for failure to appear
is issued for the person’s arrest.
9. Use of locator services.
a. A litigant’s personal contact information (home phone number, cell
phone number, address, etc.) is verified every time a contact is made with
the court.
b. A litigant’s financial and employment information is verified every
time a collections and/or probation contact is made with the court.
c. The court uses a locator service(s) to help maintain accurate contact
information. While the SCAO does not recommend or certify any specific
locator service, there are several that have been used by courts. Some will
be at a cost, and others will not. These services include:
i. www.accurint.com
ii. www.choicepoint.com
iii. www.switchboard.com
iv. www.yellowpages.com
v. www.daplus.us
vi. www.zabasearch.com
vii. www.whitepages.com
viii. Judicial Data Warehouse www.scao.us
ix. Michigan Department of Corrections Offender Tracking Informa-
tion System (OTIS) www.michigan.gov/corrections
x. For company information:
1. www.michigan.gov/corporations
2. www.bbb.com
10. Referral to outside agency for collections after all in-house
collections efforts are exhausted.
a. The determination to use a third party for collections should be
made on a court-by-court basis. A court must determine at what point in
the collections process it has little hope of collecting the obligation and
when the expense of using a third-party collector is justified. For more
complex collections cases, the costs of a third-party collector may not be
a factor, because after the court’s internal collections efforts have failed
and the court has deemed the debt to be uncollectible, any money that a
third party collects is money that would not have been collected other-
wise.
P
ROPOSED
A
MENDMENT OF
R
ULES
7.101
AND
7.105
OF THE
M
ICHIGAN
C
OURT
R
ULES
. On order of the Court, this is to advise that the Court is
considering amendments of Rules 7.101 and 7.105 of the Michigan Court
Rules. Before determining whether the proposal should be adopted,
changed before adoption, or rejected, this notice is given to afford
interested persons the opportunity to comment on the form or the merits
of the proposal or to suggest alternatives. The Court welcomes the views
of all. This matter also will be considered at a public hearing. The notices
and agendas for public hearings are posted at www.courts.michigan.gov
/supremecourt.
1206 484 M
ICHIGAN
R
EPORTS
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
[Additions are indicated by underlining and deletions are indicated by
strikeover.]
R
ULE
7.101. P
ROCEDURE
G
ENERALLY
.
(A)-(H) [Unchanged.]
(I) Filing and Service of Briefs.
(1) Within 21 days after the trial court clerk notifies the parties that
the record on appeal has been sent to the circuit court, the appellant must
file a brief in the circuit court and serve it on the appellee. The appellee
may file and serve a reply brief within 21 days after the appellant’s brief
is served on the appellee. The appellant’s brief must comply with MCR
7.212(B) and (C), and the appellee’s brief must comply with MCR
7.212(B) and (D).
(2) [Unchanged.]
(J)-(P) [Unchanged.]
R
ULE
7.105 A
PPEALS FROM
A
DMINISTRATIVE
A
GENCIES IN
C
ONTESTED
C
ASES
.
(A)-(J) [Unchanged.]
(K) Briefs and Arguments.
(1) Within 28 days after the record is filed with the court (see MCL
24.304[2]), the petitioner shall file with the court its brief, in the form
provided in MCR 7.212(B) and (C), serve a copy on all respondents, and
promptly file proof of that service with the court. Within 28 days after
petitioner’s brief is served, each respondent shall file with the court its
brief, in the form provided in MCR 7.212(B) and (D), serve a copy on all
other parties, and promptly file proof of that service with the court. The
petitioner may file and serve a reply brief within 14 days after service of
the respondent’s brief. A 28-day extension of the time for filing a brief
may be obtained on written stipulation of the parties or by order of the
court. Further extension of time for filing of a brief can be obtained only
on order of the court on motion for cause shown.
(2)-(4) [Unchanged.]
(L)-(O) [Unchanged.]
Staff Comment: This proposal would clarify that briefs filed in cases
that involve an appeal to a circuit court from a district court or an appeal
of a decision by a state administrative agency, board, or commission may
not exceed 50 pages in length, similar to the length restriction for briefs
filed in the Court of Appeals.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on these proposals may be sent to the
Supreme Court Clerk in writing or electronically by November 1, 2009, at
P.O. Box 30052, Lansing, MI 48909, or [email protected]. When
filing a comment, please refer to ADM File No. 2009-14. Your comments
S
PECIAL
O
RDERS
1207
and the comments of others will be posted at www.courts.mi.gov
/supremecourt/resources/administrative/index.htm.
Superintending Control Denied July 29, 2009:
S
CHOCK
vC
OURT OF
A
PPEALS
, No. 139203. On order of the Court, the
motion for immediate consideration is granted. The complaint for super-
intending control is considered, and relief is denied, because the contro-
versy is moot, this Court having observed that oral argument in the
Court of Appeals took place on July 14. We also note that the Court of
Appeals granted Dr. Schock permission to have a camera in the attorney
waiting room to “pool in” with the courtroom television camera manned
by WOOD-TV, Channel 8.
W
EAVER
,J.(concurring). I concur in and join the order granting
immediate consideration and declaring the complaint for superintending
control moot.
1
I write further to provide the following as a matter of disclosure. I
note that I know Mr. Schock personally, but I have had no past and have
no present business relationship with him. I first met Mr. Schock in the
fall of 2006 when I was an invited participant in the “You and the Courts”
educational video that he and his company produced for Ottawa County.
In February 2007, after the then “majority of four” (former Chief Justice
T
AYLOR
and Justices C
ORRIGAN
,Y
OUNG
, and M
ARKMAN
) adopted their “gag
order” on December 6, 2006, and held a public hearing on how to enforce
their “gag order” on January 17, 2007, I granted a video interview with
Mr. Schock about the Michigan Supreme Court, which he has produced as
aDVD.
The “gag order,” Administrative Order No. 2006-8, states:
All correspondence, memoranda and discussions regarding
cases or controversies are confidential. This obligation to honor
confidentiality does not expire when a case is decided. The only
exception to this obligation is that a Justice may disclose any
unethical, improper or criminal conduct to the JTC or proper
authority.
The “gag order” was used by the “majority of four” to suppress my
dissent in Grievance Administrator v Fieger, 477 Mich 1228, 1231 (2006),
from December 6, 2006, until December 21, 2006. As I stated then, and
as
1
Before this case became moot, I would have denied the complaint for
superintending control because, under the court rules, this Court can
only grant superintending control when the Court of Appeals has violated
a clear legal duty. MCR 7.301(A)(6). In this case, under Administrative
Order No. 1989-1, the Court of Appeals had discretion to grant or not
grant Mr. Schock’s request to videotape oral arguments. Therefore, this
Court could not grant superintending control because there was no clear
legal duty for the Court of Appeals to act.
1208 484 M
ICHIGAN
R
EPORTS
I have stated numerous times, an efficient and impartial judiciary is “ill
served by casting a cloak of secrecy around the operations of the courts.”
Scott v Flowers, 910 F2d 201 (CA 5, 1990).
I am neither biased nor prejudiced for or against Mr. Schock and his
company. There are no grounds for disqualification, and therefore I
participate in this case.
Importantly, after this case became moot, and before this Court issued
any order in this case, Mr. Schock sent a further communication to this
Court on July 20, 2009. In this later communication, Mr. Schock asked
that the Court consider the manner in which the Court of Appeals
granted the request of another media organization to film oral arguments
while only allowing Mr. Schock to tap in to the other organization’s film
feed, which obtained less footage of the oral arguments and was of a lower
film quality than Mr. Schock would have been able to obtain if he had
been allowed to film the argument with his own equipment.
Given the seriousness of the issue as to whether courts (the govern-
ment) should be deciding which media (the press) are permitted to cover
court cases and how media cover court cases, I request that this Court
open an administrative file to review the 20-year-old policies pertaining
to media filming of court proceedings contained in Administrative Order
No. 1989-1.
Accordingly, I concur in the order granting immediate consideration
and declaring the complaint for superintending control moot.
M
ARKMAN
,J.(concurring). I concur fully in the Court’s order, but write
separately to respond to Justice W
EAVER
’s nondisqualification statement.
In particular, I write to respond to her characterization of herself for the
thousandth time as a victim of a “gag order” by this Court. I believe that
I can say with confidence, and as the official Michigan Reports will
confirm, there has perhaps never been any more ungagged member of
this Court, especially when it comes to breaching the kind of confidences
to which any judicial body is entitled in its deliberations.
To the extent that there has ever been any supposed “gag order,” it is
reflected in Administrative Order No. 2006-8, which states in pertinent
part, “All correspondence, memoranda and discussions regarding cases or
controversies are confidential.” This order remains intact, even with the
changing majority on this Court, and reflects the historic practices both
of the Michigan Supreme Court and of every other state and federal court
in this country from time immemorial. Justice W
EAVER
’s repeatedly
expressed unwillingness to abide by AO 2006-8, and this Court’s conse-
quent discussions concerning how best to maintain the integrity of its
deliberations in light of Justice W
EAVER
’s conduct, do not make her the
“victim” of a “gag order,” or of anything else. Rather, they make her a
justice who has seriously obstructed the people’s work on this Court by
rendering its deliberations subject to disclosure at her exclusive whim
and in accord with her own unique recollections. No responsible judicial
body can operate under such strictures, and the conferences of this Court
S
PECIAL
O
RDERS
1209
have suffered considerably as a result. Justice W
EAVER
’s posture, shared
by no other past or present justice, is one in which no other justice’s views
matter than her own.
1
In response to similar assertions by Justice W
EAVER
that she was the
victim of a “gag order,” former Chief Justice Clifford T
AYLOR
remarked
several years ago that “despite the fact that a justice of this Court has
now engaged, and continues to engage, in the unprecedented act of
revealing deliberative confidences, every word of every statement of hers
has been made public exactly as she has written it.” Grievance Admin-
istrator v Fieger, 477 Mich 1228, 1229 (2006). This observation remains
just as true today.
2
C
ORRIGAN
and Y
OUNG
, JJ. We join the statement of Justice M
ARKMAN
.
1
Although Justice W
EAVER
invariably places blame, as she does once
again in this case, upon the “majority of four” for supposedly
“gagging” her, previously she has placed blame upon each of her six
colleagues for allegedly victimizing her in this way. See In re Gilbert,
469 Mich 1224, 1230 (2003), in which Justice W
EAVER
accused a
“six-justice majority” of “suppressing” two of her statements, and
engaging in a “cover-up,” where, in an effort to persuade her to
reconsider her conduct, her colleagues sought to delay Justice W
EAV-
ER
’s statements, issuing a public denunciation of a judge whose
Judicial Tenure Commission complaint was still pending before this
Court and thereby undermining the fairness of his appellate process.
As with every other statement that Justice W
EAVER
has ever issued,
these statements too were eventually published.
2
Concerning Justice W
EAVER
’s decision in this case not to disqualify
herself, I do not participate in this decision, but I note that: (a) despite
having repeatedly criticized her colleagues for their ethical shortcom-
ings in failing to recognize that a judge “may be the last person” to
perceive bias in his or her own case, Grievance Administrator v Fieger,
476 Mich 231, 340 (2006), Justice W
EAVER
, unlike Justice H
ATHAWAY
,
see United States Fidelity & Guaranty Co v Michigan Catastrophic
Claims Ass’n (On Rehearing), 484 Mich 1, 45 (2009), has not sought a
vote from her colleagues approving or disapproving her own decision;
and (b) despite having also repeatedly criticized her colleagues for
their ethical shortcomings in abiding by the traditional “actual bias”
test for disqualification, and having now proposed an alternative
“appearance of impropriety” test, Justice W
EAVER
is content in her own
case to state merely, “I am neither biased nor prejudiced for or against
Mr. Schock and his company.” This is clearly an inadequate explana-
tion for her decision under either her own test or under the newly
established ‘objective’ test of the United States Supreme Court in
Caperton v A T Massey Coal Co, Inc, 556 US ___; 129 S Ct 2252; 173 L
Ed 2d 1208 (2009).
1210 484 M
ICHIGAN
R
EPORTS
Order Entered July 31, 2009:
P
ROPOSED
A
MENDMENT OF
R
ULE
6.201
OF THE
M
ICHIGAN
C
OURT
R
ULES
.On
order of the Court, this is to advise that the Court is considering
amendment of Rule 6.201 of the Michigan Court Rules. Before determin-
ing whether the proposal should be adopted, changed before adoption, or
rejected, this notice is given to afford interested persons the opportunity
to comment on the form or the merits of the proposal or to suggest
alternatives. The Court welcomes the views of all. This matter also will be
considered at a public hearing. The notices and agendas for public
hearings are posted at www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
[Additions are indicated by underlining and deletions are indicated by
strikeover.]
R
ULE
6.201. D
ISCOVERY
.
(A) [Unchanged.]
(B) Discovery of Information Known to the Prosecuting Attorney.
Upon request, the prosecuting attorney must provide each defendant:
(1) any exculpatory information or evidence known to the prosecuting
attorney;
(2) any police report and interrogation records concerning the case,
except so much of a report as concerns a continuing investigation;
(3) any written or recorded statements by a defendant, codefendant,
or accomplice pertaining to the case, even if that person is not a
prospective witness at trial;
(4) any affidavit, warrant, and return pertaining to a search or seizure
in connection with the case; and
(5) any plea agreement, grant of immunity, or other agreement for
testimony in connection with the case.
(6) any electronic recording evidence made by any governmental
agency or agent pertaining to the case known to the prosecuting attorney.
Such records shall be preserved by the prosecuting attorney until after all
appeals have been exhausted or all rights of appeal have expired,
whichever date is later. Failure to preserve such evidence will entitle the
accused to a jury instruction that such evidence not produced may be
presumed by jurors to have been adverse to the prosecution.
(C)-(J) [Unchanged.]
C
ORRIGAN,
J
.
(dissenting). I would not publish the proposed amend-
ment of MCR 6.201 because I do not think that this Court has the
authority to govern the record keeping procedures of prosecutors and
government agencies. Further, this proposal presents significant practi-
cal problems without any showing of the need for such a change.
Proposed subrule B(6) would penalize a prosecutor, without regard to
his good faith, for failing to preserve “any electronic recording evidence
made by any governmental agency or agent pertaining to the case known
to the prosecuting attorney.” It would further require retention of such
evidence for an essentially indefinite period: “until after all appeals have
S
PECIAL
O
RDERS
1211
been exhausted or all rights of appeal have expired.” The rule thus would
impose a duty on prosecutors to preserve evidence without regard to
whether it is exculpatory or even admissible at trial for an indefinite
period if the evidence may ultimately be said merely to “pertain[]” to any
case. Accordingly, the rule effectively would require prosecutors to devise
a method to obtain, permanently store, catalogue, and reproduce every
audio or visual recording made by government agencies that could ever
pertain to any case.
1
Further, because the rule addresses “evidence made
by any governmental agency or agent,” it would implicate the initial
retention of all records of all agencies—including the field tapes of police
and emergency personnel, tapes of 911 calls, digital booking photos,
etc.—and would impliedly affect the normal processes of government
agencies in erasing and reusing apparently outdated recording media.
Such a court rule implicating the record retention practices of prosecu-
tors and state agencies appears to violate the separation of powers
required by our state constitution. 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.”).
2
Accordingly, I cannot conclude that this Court has the
power to direct and sanction the record keeping practices of these
agencies or the prosecutor in this way. To the contrary, the concerns
underlying the proposed amendment—which appear to be directed
broadly at the record retention practices and policies of government
agencies—are more appropriately addressed by the Legislature, the
Attorney General, or the agencies at issue.
Significantly, prosecutors’ duties with regard to court proceedings—
which are properly governed by this Court—are already addressed by the
existing rule. MCR 6.201(B) already requires prosecutors to provide
defendants with “any exculpatory information or evidence known to the
prosecuting attorney,” police reports, interrogation records, and state-
ments pertaining to the case, and records concerning any searches or
seizures connected to the case, among other things. MCR 6.201(J), in
turn, provides remedies for a violation of the provisions of MCR 6.201(B),
including sanctions for willful violations.
Y
OUNG
and M
ARKMAN
, JJ., concur with C
ORRIGAN
,J
.
Staff Comment: This proposal was submitted to the Michigan Su-
preme Court by the State Bar of Michigan Representative Assembly. It
would require prosecutors to maintain electronic recording evidence
made by governmental agencies until the time for all appeals has expired.
1
Because prosecutors would be subject to a penalizing jury instruction
for failure to produce such evidence, prosecutors would be required to
obtain and maintain equipment to reproduce the electronic recordings.
2
Local prosecutors operate under the supervision of the state Attorney
General, MCL 14.30, who in turn is an elected official within the
Executive Branch. Const 1963, art 5, § 21.
1212 484 M
ICHIGAN
R
EPORTS
Failure to preserve evidence would entitle the defendant to a jury
instruction that jurors may presume any evidence not produced was
adverse to the prosecution.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to
the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on these proposals may be sent to the
Supreme Court Clerk in writing or electronically by November 1, 2009, at
P.O . Box 30052, Lansing, MI 48909, or [email protected]. When
filing a comment, please refer to ADM File No. 2008-38. Your comments and
the comments of others will be posted at www.courts.mi.gov
/supremecourt/resources/administrative/index.htm.
Order Entered August 5, 2009:
P
ROPOSED
A
MENDMENTS OF
R
ULES
6.425
AND
6.610. On order of the Court,
this is to advise that the Court is considering amendments of Rules 6.425
and 6.610 of the Michigan Court Rules. Before determining whether the
proposal should be adopted, changed before adoption, or rejected, this
notice is given to afford interested persons the opportunity to comment
on the form or the merits of the proposal or to suggest alternatives. The
Court welcomes the views of all. This matter also will be considered at a
public hearing. The notices and agendas for public hearings are posted at
www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
[Additions are indicated by underlining and deletions are indicated by
strikeover.]
R
ULE
6.425. S
ENTENCING
;A
PPOINTMENT OF
A
PPELLATE
C
OUNSEL
.
(A) [Unchanged.]
(B) Presentence Report; Disclosure Before Sentencing. The court
must provide copies of the presentence report to the prosecutor and the
defendant’s lawyer, or the defendant if not represented by a lawyer, at a
reasonable time, but not less than two business days, before the day of
sentencing. The prosecutor and the defendant’s lawyer, or the defendant
if not represented by a lawyer, may retain their copies for their records.
If the presentence report is not made available to the defendant’s lawyer,
or the defendant if not represented by a lawyer, at least two business days
before the day of sentencing, the defendant’s lawyer, or the defendant if
not represented by a lawyer, shall be entitled, on oral motion, to an
adjournment of the day of sentencing to enable the defendant’s lawyer, or
the defendant if not represented by a lawyer, to review the presentence
report and to prepare any necessary corrections, additions, or deletions to
present to the court. The presentence report shall not include the
following information about any victim or witness: home address, home
telephone number, work address, or work telephone number, unless an
address is used to identify the place of the crime. The court may exempt
from disclosure information or diagnostic opinion that might seriously
disrupt a program of rehabilitation and sources of information that have
S
PECIAL
O
RDERS
1213
been obtained on a promise of confidentiality. When part of the report is
not disclosed, the court must inform the parties that information has not
been disclosed and state on the record the reasons for nondisclosure. To
the extent it can do so without defeating the purpose of nondisclosure,
the court also must provide the parties with a written or oral summary of
the nondisclosed information and give them an opportunity to comment
on it. The court must have the information exempted from disclosure
specifically noted in the report. The court’s decision to exempt part of the
report from disclosure is subject to appellate review.
(C)-(G) [Unchanged.]
R
ULE
6.610. C
RIMINAL
P
ROCEDURE
G
ENERALLY
.
(A)-(E) [Unchanged.]
(F) Sentencing.
(1) At the For sentencing, the court shall:
(a) require the presence of the defendant’s attorney, unless the
defendant does not have one or has waived the attorney’s presence;
(b) give the defendant’s attorney or, if the defendant is not repre-
sented by an attorney, the defendant an opportunity to review the
presentence report, if any, and to advise the court of circumstances the
defendant believes should be considered in imposing sentence; and
(c) inform the defendant of credit to be given for time served, if any.;
and
(d) if a presentence report was prepared, the court must provide
copies of the presentence report to the prosecutor, and the defendant’s
lawyer, or the defendant if not represented by a lawyer, at a reasonable
time, but not less than two business days, before the day of sentencing.
The prosecutor and the defendant’s lawyer, or the defendant if not
represented by a lawyer, may retain their copies for their records. If the
presentence report is not made available to the defendant’s lawyer, or the
defendant if not represented by a lawyer, at least two business days
before the day of sentencing, the defendant’s lawyer, or the defendant if
not represented by a lawyer, shall be entitled, on oral motion, to an
adjournment to enable the defendant’s lawyer, or the defendant if not
represented by a lawyer, to review the presentence report and to prepare
any necessary corrections, additions, or deletions to present to the court.
The presentence report shall not include the following information about
any victim or witness: home address, home telephone number, work
address, work telephone number, or any other information prohibited
from disclosure pursuant to MCL 780.751 et seq., unless an address is
used to identify the place of the crime.
(G)-(H) [Unchanged.]
C
ORRIGAN,
J
.
(dissenting). I would not publish the proposed amend-
ment of MCR 6.425 and 6.610 because I am concerned that the language
recommended by the State Bar promotes asymmetry in the motions made
available to defendants and prosecutors regarding untimely presentence
reports and because the recommended language may run afoul of an
1214 484 M
ICHIGAN
R
EPORTS
existing statute mandating that presentence reports be privileged com-
munications. Although I do not oppose increasing the amount of time in
which courts must provide copies of presentence reports, I would have
addressed these drafting deficiencies before submitting the proposed
amendment for public comment.
Proposed MCR 6.425(B) and MCR 6.610(F)(1)(d) both state that if a
presentence report is not made available at least two business days before
sentencing, “the defendant’s lawyer (or the defendant if not represented
by a lawyer) shall be entitled, on oral motion, to an adjournment.” The
purpose of allowing defendants or their attorneys to request an adjourn-
ment is so that defendants can “review the presentence report and []
prepare any necessary corrections, additions or deletions to present to
the court.” The recommended language in both rules, however, entirely
excludes prosecutors from moving for an adjournment if a presentence
report has not been made available to them at least two business days
before the date of sentencing. I question what rationale, if any, under-
girds this disparity between the motions made available to prosecutors
and the motions made available to defendants concerning untimely
presentence reports. Both prosecutors and defendants should be able to
request an adjournment because both parties should carefully review an
individual’s presentence report and apprise the court of any inaccuracies
or necessary changes. Consequently, I would correct this asymmetry in
the recommended language of proposed MCR 6.425(B) and MCR
6.610(F)(1)(d).
Moreover, I am concerned that insofar as the proposed amendment of
MCR 6.425(B) and MCR 6.610(F)(1)(d) provides that the prosecutor, the
defendant’s attorney, or the defendant “may retain their copies [of the
presentencing report] for their records,” it may run afoul of MCL
791.229.
1
According to MCL 791.229, a presentence report “shall be
privileged or confidential communications not open to public inspection.”
MCL 791.229. Additionally, the Legislature specified that only “[j]udges
and probation officers shall have access to the records, reports, and case
1
MCL 791.229 provides that
[a]ll records and reports of investigations made by a probation
officer, and all case histories of probationers shall be privileged or
confidential communications not open to public inspection. Judges
and probation officers shall have access to the records, reports, and
case histories. The probation officer, the assistant director of
probation, or the assistant director’s representative shall permit
the attorney general, the auditor general, and law enforcement
agencies to have access to the records, reports, and case histories
and shall permit designated representatives of a private vendor
that operates a youth correctional facility under [MCL 791.220g]
to have access to the records, reports, and case histories pertaining
to prisoners assigned to the youth correctional facility. The rela-
tion of confidence between the probation officer and probationer
or defendant under investigation shall remain inviolate.
S
PECIAL
O
RDERS
1215
histories.” Id. As privileged communications, presentence reports are
subject to disclosure to necessary parties set forth in MCR 6.425(B) and
(C). MCR 6.425(B) provides that the court may exempt “information or a
diagnostic opinion that might seriously disrupt a program of rehabilita-
tion and sources of information that have been obtained on a promise of
confidentiality.” The same material is exempt if copies of the report are
later provided to the parties named in MCR 6.425(C). Importantly,
however, neither MCR 6.425(B) nor MCR 6.425(C) states that the
prosecutor or the defendant shall retain their copies of the presentence
report for their records.
2
The statutory confidentiality afforded a presen-
tence report under MCL 791.229 explains why such reports traditionally
are not made part of the circuit court file. Moreover, it explains why in
cases where the report must be transmitted to the Court of Appeals, the
presentence report is not made a part of the public record there either.
3
Accordingly, I would delete the portion of the proposed amendment that
allows the prosecutor and the defendant to retain their copies of the
defendant’s presentence report.
Because I believe that this Court should have addressed these drafting
deficiencies before submitting the proposed amendment of MCR 6.425
and 6.610 for public comment, I respectfully dissent from the publication
of the proposed amendment.
Y
OUNG
and M
ARKMAN,
JJ., concurred with C
ORRIGAN,
J.
Staff Comment: The proposed amendments of Rules 6.425 and 6.610
of the Michigan Court Rules were submitted by the Representative
Assembly of the State Bar of Michigan and would increase the time
within which a court is required to provide copies of the presentence
report to the prosecutor, the defendant’s lawyer, or the defendant if not
represented by a lawyer, to two business days before the day of sentenc-
ing. If the report is not made available at least two days before
sentencing, the defendant’s lawyer, or the defendant, if not represented
by a lawyer, would be entitled to adjournment to prepare necessary
corrections, additions, or deletions to present to the court. The proposed
revisions of these rules also would prohibit the inclusion of specific
information in the report about the victim or witness.
2
I acknowledge that MCR 6.425(C) provides in relevant part, “[a]fter
sentencing, the court, on written request, must provide the prosecutor,
the defendant’s lawyer, or the defendant not represented by a lawyer,
with a copy of the presentence report and any attachments to it.”
Notably, MCR 6.425(C) does not include any language mandating that
the parties who request a copy of a presentence report after sentencing
shall retain that copy for their personal records.
3
A presentence report must be sent to the Court of Appeals only if a
sentencing issue is being raised on appeal. MCR 7.212(C)(7). Similarly,
MCL 769.34(8)(b) states that the presentence report shall be part of the
record filed for an appeal of a sentence, except that any exempted portion
shall not be made a part of the public record.
1216 484 M
ICHIGAN
R
EPORTS
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to
the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on these proposals may be sent to the
Supreme Court Clerk in writing or electronically by December 1, 2009, at
P.O . Box 30052, Lansing, MI 48909, or [email protected]. When
filing a comment, please refer to ADM File No. 2008-39. Your comments and
the comments of others will be posted at www.courts.mi.gov/
supremecourt/resources/administrative/index.htm.
Superintending Control Denied August 6, 2009:
E
ASLEY V
A
TTORNEY
G
RIEVANCE
C
OMMISSION
, No. 138733; AGC: 2326/07.
C
ANTY V
A
TTORNEY
G
RIEVANCE
C
OMMISSION
, No. 138758; AGC: 0201/08.
S
PECIAL
O
RDERS
1217
INDEX-DIGEST
INDEX–DIGEST
ACTIONS
C
LASS
A
CTIONS
1. The standard of review for class certification encom-
passes de novo review on questions of law, review for
clear error on questions of fact, and review for abuse of
discretion on the ultimate decision on the motion for
class certification. Henry v Dow Chemical Co, 484 Mich
483.
2. A party seeking class certification cannot sustain its
burden of proving that all the prerequisites of the
Michigan Court Rules are met by means of a bare
assertion that the prerequisites have been met unless
the facts necessary to support such a finding are uncon-
tested or admitted by the opposing party (MCR
3.501[A]). Henry v Dow Chemical Co, 484 Mich 483.
3. If the pleadings alone are not sufficient to establish that
the prerequisites for class certification have been met, a
trial court must look beyond the pleadings to determine
whether class certification is proper by analyzing any
asserted facts, claims, defenses, and relevant law with-
out questioning the actual merits of the case (MCR
3.501[A]). Henry v Dow Chemical Co, 484 Mich 483.
M
EDICAL
M
ALPRACTICE
4. A timely but defective notice of intent to commence a
medical malpractice action tolls the statute of limita-
tions (MCL 600.5856[c]). Bush v Shabahang, 484 Mich
156.
5. A court is not required to dismiss with prejudice a claim
for medical malpractice if the notice of intent to com-
mence the action was defective. Bush v Shabahang, 484
Mich 156.
6. The statutory provision that gives courts the power to
1379
cure defects within processes, pleadings, or proceedings
for the furtherance of justice may be employed to cure
defects in a notice of intent if a party has made a
good-faith attempt to comply with the content require-
ments of the statutory notice provision (MCL 600.2301).
Bush v Shabahang, 484 Mich 156.
7. A professional corporation rendering professional
health care services and the health care provider are
treated as the same entity for the purpose of providing a
notice of intent to bring a claim for medical malpractice
(MCL 450.221 et seq., 600.2912b). Potter v McLeary, 484
Mich 397.
8. A claim against a professional corporation sounds in
medical malpractice rather than ordinary negligence if
the claim occurs when the professional corporation is
rendering services through a licensed or authorized
officer, employee, or agent as set forth in MCL 450.225,
and if the claim poses questions of medical judgment
outside the realm of common knowledge and experience.
Potter v McLeary, 484 Mich 397.
9. Only those health care providers and facilities desig-
nated in the statutory provision that addresses the
accrual of medical malpractice claims may be sued for
medical malpractice (MCL 600.5838a). Potter v
McLeary, 484 Mich 397.
10. A notice of intent to bring a medical malpractice claim
that alleges only vicarious liability need not specifically
set forth the legal theory of vicarious liability or
include a statement of the defendant’s employment
relationship with the health professional whose actions
gave rise to the suit (MCL 600.2912b). Potter v
McLeary, 484 Mich 397.
AT-WILL EMPLOYMENT—See
H
EALTH
3
ATTORNEY FEES—See
S
TATUTES
1
BREACH OF CONTRACT—See
L
IMITATION OF
A
CTIONS
1
BURDEN OF PROOF—See
A
CTIONS
2
1380 484 M
ICHIGAN
R
EPORTS
CATASTROPHIC CLAIMS—See
I
NSURANCE
1, 2, 3
CHILD CUSTODY—See
P
ARENT AND
C
HILD
1, 2
CLASS ACTIONS—See
A
CTIONS
1, 2, 3
CONTRACTS—See
L
IMITATION OF
A
CTIONS
1
CONTROLLED SUBSTANCES—See
S
ENTENCES
1
CREDIT FOR TIME SERVED AWAITING TRIAL ON A
NEW OFFENSE—See
P
AROLE
1
CURE FOR DEFECTIVE NOTICE OF INTENT—See
A
CTIONS
6
DEFECTIVE NOTICE OF INTENT—See
A
CTIONS
4, 5, 6
DEMAND FOR REPAYMENT OF LOANS—See
L
IMITATION OF
A
CTIONS
1
DOUBLING OF MINIMUM SENTENCES—See
S
ENTENCES
1
EMPLOYMENT—See
H
EALTH
3
ESTABLISHED CUSTODIAL ENVIRONMENT
PRESUMPTION—See
P
ARENT AND
C
HILD
1
HEALTH
L
OCAL
H
EALTH
D
EPARTMENTS
1. A local health department created pursuant to part 24 of
the Public Health Code has the authority under that
part and part 126, also known as the Michigan Clean
I
NDEX
-D
IGEST
1381
Indoor Air Act, to promulgate, implement, and enforce
regulations in indoor public places that are at least as
stringent as those established by state law (MCL
333.2433[1], 333.2435[d], 333.2441[1], and 333.12613[2]).
McNeil v Charlevoix Co, 484 Mich 69.
2. A regulation by a local health department created pur-
suant to part 24 of the Public Health Code that prohibits
smoking in all enclosed public places and requires
employers that do not wholly prohibit smoking at an
enclosed work site to designate a department-approved
smoking room for those of its employees who smoke
does not conflict with part 126 of the Public Health
Code, also known as the Michigan Clean Indoor Air Act
(MCL 333.2401 et seq. and 333.12601 et seq.). McNeil v
Charlevoix Co, 484 Mich 69.
3. A regulation by a local health department created pur-
suant to part 24 of the Public Health Code that prohibits
an employer from discharging, refusing to hire, or
otherwise retaliating against an employee for exercising
his or her right to a smoke-free working environment
mandated by the regulation does not violate the public
policy of recognizing the right to terminate employment
at will (MCL 333.2401 et seq.). McNeil v Charlevoix Co,
484 Mich 69.
HEALTH-CARE PROFESSIONALS—See
A
CTIONS
9
HEALTH FACILITIES OR AGENCIES—See
A
CTIONS
9
INDEMNIFICATION—See
I
NSURANCE
1, 2, 3
INSURANCE
N
O
-F
AULT
1. The Michigan Catastrophic Claims Association may not
refuse to indemnify unreasonable charges for personal
protection insurance benefits because the statutory pro-
vision setting forth its indemnification obligation does
not contain a standard of reasonableness (MCL
500.3104[2]). United States Fidelity Ins & Guaranty Co
v Michigan Catastrophic Claims Ass’n (On Rehearing),
484 Mich 1.
1382 484 M
ICHIGAN
R
EPORTS
2. The statutory powers of the MCCA to adjust the prac-
tices and procedures of member insurers do not encom-
pass adjusting the payment amount to which a claimant
and a member insurer have agreed (MCL 500.3104[7]).
United States Fidelity Ins & Guaranty Co v Michigan
Catastrophic Claims Ass’n (On Rehearing), 484 Mich 1.
3. The limited statutory power of the MCCA to further its
purpose of prompt and efficient indemnification of its
members does not extend to declining to indemnify
unreasonable charges (MCL 500.3104[8][g]). United
States Fidelity Ins & Guaranty Co v Michigan Cata-
strophic Claims Ass’n (On Rehearing), 484 Mich 1.
JAIL CREDIT STATUTE—See
P
AROLE
1
JOINT TENANTS
P
ARTITION
1. Jackson v Green Estate, 484 Mich 209.
JUDGES
M
ISCONDUCT
1. In re Servaas, 484 Mich 634.
LIMITATION OF ACTIONS
See, also,
A
CTIONS
4
C
ONTRACTS
1. Jackson v Green Estate, 484 Mich 209.
LOANS—See
L
IMITATION OF
A
CTIONS
1
LOCAL HEALTH DEPARTMENTS—See
H
EALTH
1, 2, 3
MEDICAL MALPRACTICE—See
A
CTIONS
4, 5, 6, 7, 8, 9, 10
MISCONDUCT—See
J
UDGES
1
MOTIONS TO CERTIFY CLASS ACTIONS—See
A
CTIONS
1, 2, 3
I
NDEX
-D
IGEST
1383
NO-FAULT—See
I
NSURANCE
1, 2, 3
NOTICE OF INTENT TO FILE A CLAIM—See
A
CTIONS
4, 5, 6, 7, 10
OFFENSE VARIABLES—See
S
ENTENCES
2
PARENT AND CHILD
C
HILD
C
USTODY
1. The parental presumption contained in MCL 722.25(1)
prevails over the presumption in favor of an established
custodial environment contained in MCL 722.27(1)(c) in
an action in which both presumptions apply. Hunter v
Hunter, 484 Mich 247.
2. The presumption in MCL 722.25(1) that in a custody
dispute between a parent and an agency or third person
the court shall presume that the best interests of the child
are served by awarding custody to the parent applies to all
natural parents who are parties, not merely fit natural
parents; the presumption applies unless the contrary is
established by clear and convincing evidence. Hunter v
Hunter, 484 Mich 247.
PARENTAL PRESUMPTION—See
P
ARENT AND
C
HILD
1, 2
PAROLE
J
AIL
C
REDIT
S
TATUTE
1. A parolee who is convicted of and sentenced to a term of
imprisonment for an offense committed while on parole
resumes serving his or her original maximum sentence
on the date the parolee is arrested for the new offense;
the parolee is not entitled to credit against his or her
new minimum sentence for the time served in jail
between arrest and sentencing on the new offense (MCL
769.11b, 791.238[2]). People v Idziak, 484 Mich 549.
PARTITION—See
J
OINT
T
ENANTS
1
1384 484 M
ICHIGAN
R
EPORTS
PERSONAL PROTECTION INSURANCE
BENEFITS—See
I
NSURANCE
1, 2, 3
POWERS OF THE MICHIGAN CATASTROPHIC
CLAIMS ASSOCIATION—See
I
NSURANCE
2, 3
PREREQUISITES FOR CLASS CERTIFICATION—See
A
CTIONS
2, 3
PROFESSIONAL CORPORATIONS—See
A
CTIONS
7, 8
PRORATION OF ATTORNEY FEES—See
S
TATUTES
1
REPEAT OFFENDERS—See
S
ENTENCES
1
SCORING OFFENSE VARIABLES—See
S
ENTENCES
2
SENTENCES
C
ONTROLLED
S
UBSTANCES
1. MCL 333.7413(2) authorizes a sentencing court to
double both the minimum sentence calculated under the
sentencing guidelines and the statutory maximum sen-
tence of a defendant who is a repeat controlled sub-
stances offender. People v Lowe, 484 Mich 718.
S
ENTENCING
G
UIDELINES
2. Offense variables under the sentencing guidelines
must be scored by reference only to the offense for
which the defendant is being sentenced unless an
offense variable statute specifically provides other-
wise and allows consideration of conduct beyond the
sentencing offense (MCL 777.1 et seq.). People v
McGraw, 484 Mich 120.
SENTENCING GUIDELINES—See
S
ENTENCES
1, 2
I
NDEX
-D
IGEST
1385
SEVERANCE OF JOINT TENANCY BY PARTITION
ACTION—See
J
OINT
T
ENANTS
1
SMOKING REGULATIONS—See
H
EALTH
1, 2, 3
STANDARDS OF REVIEW—See
A
CTIONS
1
SURVIVAL OF PARTITION ACTIONS—See
J
OINT
T
ENANTS
1
UNREASONABLE CHARGES—See
I
NSURANCE
1, 3
VICARIOUS LIABILITY—See
A
CTIONS
10
WORKER’S DISABILITY COMPENSATION ACT—See
W
ORKERS’
C
OMPENSATION
1
WORKERS’ COMPENSATION
W
ORKERS’
D
ISABILITY
C
OMPENSATION
A
CT
1. The term “prorate,” as used in the statutory provision
that gives workers’ compensation magistrates the au-
thority to prorate attorney fees, applies exclusively to
employers and their insurance carriers (MCL
418.315[1]). Petersen v Magna Corp, 484 Mich 300.
1386 484 M
ICHIGAN
R
EPORTS
