MICHIGAN REPORTS

CASES DECIDED
IN THE

SUPREME COURT
OF

MICHIGAN
FROM

July 18, 2008 to December 30, 2008

DANILO ANSELMO
REPORTER OF DECISIONS

VOL. 482
FIRST EDITION

2009
 Copyright 2009, 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
TERM EXPIRES
JANUARY 1 OF
CHIEF JUSTICE
CLIFFORD W. TAYLOR, LAINGSBURG ..................................................................... 2009

JUSTICES
MICHAEL F. CAVANAGH, EAST LANSING, .................................... 2015
ELIZABETH A. WEAVER, GLEN ARBOR,...................................... 2011
MARILYN KELLY, BLOOMFIELD HILLS,........................................... 2013
MAURA D. CORRIGAN, GROSSE POINTE PARK,............................. 2015
ROBERT P. YOUNG, JR., GROSSE POINTE PARK, ........................... 2011
STEPHEN J. MARKMAN, MASON,............................................... 2013

COMMISSIONERS
MICHAEL J. SCHMEDLEN, CHIEF COMMISSIONER
SHARI M. OBERG, DEPUTY CHIEF COMMISSIONER
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, JR.
DEBRA A. GUTIERREZ-MCGUIRE KATHLEEN M. DAWSON
ANNE-MARIE HYNOUS VOICE RUTH E. ZIMMERMAN
DON W. ATKINS SAMUEL R. SMITH
JÜRGEN O. SKOPPEK ANNE E. ALBERS

STATE COURT ADMINISTRATOR: CARL L. GROMEK

CLERK: CORBIN R. DAVIS

CRIER: DAVID G. PALAZZOLO
REPORTER OF DECISIONS: DANILO ANSELMO

iii
 COURT OF APPEALS
TERM EXPIRES
JANUARY 1 OF
CHIEF JUDGE
HENRY WILLIAM SAAD, BLOOMFIELD HILLS, ........................... 2009
CHIEF JUDGE PRO TEM
CHRISTOPHER M. MURRAY, GROSSE POINTE FARMS, .............. 2009

JUDGES
DAVID H. SAWYER, GRAND RAPIDS,.......................................... 2011
WILLIAM B. MURPHY, GRAND RAPIDS,..................................... 2013
MARK J. CAVANAGH, ROYAL OAK, ........................................... 2009
KATHLEEN JANSEN, ST. CLAIR SHORES,.................................. 2013
E. THOMAS FITZGERALD, OWOSSO, ....................................... 2009
HELENE N. WHITE, DETROIT, ................................................. 20111
RICHARD A. BANDSTRA, GRAND RAPIDS, ................................ 2009
JOEL P. HOEKSTRA, GRAND RAPIDS, ........................................ 2011
JANE E. MARKEY, GRAND RAPIDS,............................................ 2009
PETER D. O’CONNELL, MT. PLEASANT,................................... 2013
MICHAEL R. SMOLENSKI, MIDDLEVILLE, ................................ 2013
WILLIAM C. WHITBECK, LANSING,.......................................... 2011
MICHAEL J. TALBOT, GROSSE POINTE FARMS, .......................... 2009
KURTIS T. WILDER, CANTON, .................................................. 2011
BRIAN K. ZAHRA, NORTHVILLE, ................................................ 2013
PATRICK M. METER, SAGINAW,................................................ 2009
DONALD S. OWENS, WILLIAMSTON, .......................................... 2011
KIRSTEN FRANK KELLY, GROSSE POINTE PARK, ..................... 2013
PAT M. DONOFRIO, MACOMB TOWNSHIP, .................................. 2011
KAREN FORT HOOD, DETROIT, ............................................... 2009
BILL SCHUETTE, MIDLAND,..................................................... 2009
STEPHEN L. BORRELLO, SAGINAW, ........................................ 2013
ALTON T. DAVIS, GRAYLING, ..................................................... 2009
DEBORAH A. SERVITTO, MT. CLEMENS, ................................. 2013
JANE M. BECKERING, GRAND RAPIDS,..................................... 2009
ELIZABETH L. GLEICHER, PLEASANT RIDGE,.......................... 2009
CYNTHIA DIANE STEPHENS, DETROIT, ................................. 20112

CHIEF CLERK: SANDRA SCHULTZ MENGEL

RESEARCH DIRECTOR: LARRY S. ROYSTER

1
To August 11, 2008.
2
From December 30, 2008.

iv
 CIRCUIT JUDGES

TERM EXPIRES
JANUARY 1 OF
1. MICHAEL R. SMITH, JONESVILLE,..................................... 2009
2. ALFRED M. BUTZBAUGH, BERRIEN SPRINGS, .................. 2013
JOHN E. DEWANE, ST. JOSEPH, ....................................... 2009
JOHN M. DONAHUE, ST. JOSEPH,.................................... 2011
CHARLES T. LASATA, BENTON HARBOR, ............................ 2011
3. DEBORAH ROSS ADAMS, DETROIT, ................................ 2013
DAVID J. ALLEN, DETROIT,................................................ 2009
WENDY M. BAXTER, DETROIT,......................................... 2013
ANNETTE J. BERRY, PLYMOUTH, ...................................... 2013
GREGORY D. BILL, NORTHVILLE TOWNSHIP,....................... 2013
SUSAN D. BORMAN, DETROIT,.......................................... 2009
ULYSSES W. BOYKIN, DETROIT, ....................................... 2009
MARGIE R. BRAXTON, DETROIT, ..................................... 2011
MEGAN MAHER BRENNAN, GROSSE POINTE PARK,........ 2009
HELEN E. BROWN, GROSSE POINTE PARK, ........................ 20091
BILL CALLAHAN, DETROIT, ............................................. 2009
JAMES A. CALLAHAN, GROSSE POINTE, ........................... 2011
MICHAEL J. CALLAHAN, BELLEVILLE, ............................. 2009
JEROME C. CAVANAGH, HAMTRAMCK, ............................ 2013
JAMES R. CHYLINSKI, GROSSE POINTE WOODS, ............... 2011
ROBERT J. COLOMBO, JR., GROSSE POINTE, .................... 2013
DAPHNE MEANS CURTIS, DETROIT,............................... 2009
CHRISTOPHER D. DINGELL, TRENTON,......................... 2009
GERSHWIN ALLEN DRAIN, DETROIT, ............................ 2011
PRENTIS EDWARDS, DETROIT, ........................................ 2013
CHARLENE M. ELDER, DEARBORN, ................................. 2009
VONDA R. EVANS, DEARBORN, .......................................... 2009
EDWARD EWELL, JR., DETROIT, ....................................... 2013
PATRICIA SUSAN FRESARD, GROSSE POINTE WOODS, .... 2011
SHEILA ANN GIBSON, DETROIT, ..................................... 2011
JOHN H. GILLIS, JR., GROSSE POINTE, .............................. 2009
WILLIAM J. GIOVAN, GROSSE POINTE FARMS, ................... 2009
DAVID ALAN GRONER, GROSSE POINTE PARK, ................ 2011

1
To November 1, 2008.
v
 TERM EXPIRES
JANUARY 1 OF
RICHARD B. HALLORAN, JR., DETROIT,.......................... 2013
AMY PATRICIA HATHAWAY, GROSSE POINTE PARK, ........ 2013
CYNTHIA GRAY HATHAWAY, DETROIT,.......................... 2011
DIANE MARIE HATHAWAY, GROSSE POINTE PARK, ......... 2011
MICHAEL M. HATHAWAY, DETROIT, ............................... 2011
MURIEL D. HUGHES, GROSSE POINTE WOODS, ................. 2009
THOMAS EDWARD JACKSON, DETROIT, ........................ 2013
VERA MASSEY JONES, DETROIT, .................................... 2009
MARY BETH KELLY, GROSSE ILE,..................................... 2009
TIMOTHY MICHAEL KENNY, LIVONIA, .......................... 2011
ARTHUR J. LOMBARD, GROSSE POINTE FARMS,................ 2009
KATHLEEN I. MACDONALD, GROSSE POINTE WOODS, .... 2011
KATHLEEN M. McCARTHY, DEARBORN, .......................... 2013
WADE H. MCCREE, DETROIT, ............................................ 2009
WARFIELD MOORE, JR., DETROIT,................................... 2009
BRUCE U. MORROW, DETROIT, ......................................... 2011
JOHN A. MURPHY, PLYMOUTH TOWNSHIP, ......................... 2011
MARIA L. OXHOLM, DETROIT,.......................................... 2013
LITA MASINI POPKE, CANTON, ....................................... 2011
DANIEL P. RYAN, REDFORD, ............................................... 2013
MICHAEL F. SAPALA, GROSSE POINTE PARK, .................... 2013
RICHARD M. SKUTT, DETROIT, ........................................ 2009
MARK T. SLAVENS, CANTON, ............................................ 2011
LESLIE KIM SMITH, NORTHVILLE TOWNSHIP,.................... 2013
VIRGIL C. SMITH, DETROIT, ............................................. 2013
JEANNE STEMPIEN, NORTHVILLE, ................................... 2011
CYNTHIA DIANE STEPHENS, DETROIT, ........................ 2013
CRAIG S. STRONG, DETROIT,............................................ 2009
BRIAN R. SULLIVAN, GROSSE POINTE PARK,..................... 2011
DEBORAH A. THOMAS, DETROIT,.................................... 2013
ISIDORE B. TORRES, GROSSE POINTE PARK,..................... 2011
CAROLE F. YOUNGBLOOD, GROSSE POINTE,................... 2013
ROBERT L. ZIOLKOWSKI, NORTHVILLE, .......................... 2009
4. SUSAN E. BEEBE, JACKSON, ............................................. 2011
JOHN G. MCBAIN, JR., RIVES JUNCTION, ............................ 2009
CHAD C. SCHMUCKER, JACKSON,.................................... 2011
THOMAS D. WILSON, GRASSLAKE, .................................... 2013
5. JAMES H. FISHER, HASTINGS, .......................................... 2009
6. JAMES M. ALEXANDER, BLOOMFIELD HILLS, ................... 2009
MARTHA ANDERSON, TROY,........................................... 2009
STEVEN N. ANDREWS, BLOOMFIELD HILLS, ..................... 2009
LEO BOWMAN, PONTIAC,................................................... 2009
RAE LEE CHABOT, FRANKLIN, .......................................... 2011
vi
 TERM EXPIRES
JANUARY 1 OF
MARK A. GOLDSMITH, HUNTINGTON WOODS, .................. 2013
NANCI J. GRANT, BLOOMFIELD HILLS,................................ 2009
SHALINA D. KUMAR, BIRMINGHAM, .................................. 2009
DENISE LANGFORD MORRIS, WEST BLOOMFIELD,......... 2013
CHERYL A. MATTHEWS, SYLVAN LAKE, .......................... 2011
JOHN JAMES MCDONALD, FARMINGTON HILLS, .............. 2011
FRED M. MESTER, BLOOMFIELD HILLS, ............................. 2009
RUDY J. NICHOLS, CLARKSTON, ........................................ 2009
COLLEEN A. O’BRIEN, ROCHESTER HILLS, ....................... 2011
DANIEL PATRICK O’BRIEN, TROY, ................................ 2011
WENDY LYNN POTTS, BIRMINGHAM, ................................ 2013
EDWARD SOSNICK, BLOOMFIELD HILLS, ........................... 2013
MICHAEL D. WARREN, JR., BEVERLY HILLS, .................... 2013
JOAN E. YOUNG, BLOOMFIELD VILLAGE,............................. 2011
7. DUNCAN M. BEAGLE, FENTON, ....................................... 2011
JOSEPH J. FARAH, GRAND BLANC, .................................... 2011
JUDITH A. FULLERTON, FLINT, ..................................... 2013
JOHN A. GADOLA, FENTON, ............................................. 2009
ARCHIE L. HAYMAN, FLINT,............................................ 2013
GEOFFREY L. NEITHERCUT, FLINT, ............................. 2013
DAVID J. NEWBLATT, LINDEN,......................................... 2011
MICHAEL J. THEILE, FLUSHING,...................................... 2009
RICHARD B. YUILLE, FLINT, ........................................... 2009
8. DAVID A. HOORT, PORTLAND,............................................ 2011
CHARLES H. MIEL, STANTON, .......................................... 2009
9. GARY C. GIGUERE JR., PORTAGE,..................................... 2009
STEPHEN D. GORSALITZ, PORTAGE, .............................. 2011
J. RICHARDSON JOHNSON, PORTAGE, ........................... 2011
PAMELA L. LIGHTVOET, KALAMAZOO, ............................. 2013
10. JANET M. BOES, SAGINAW,................................................ 20132
FRED L. BORCHARD, SAGINAW, ....................................... 2011
WILLIAM A. CRANE, SAGINAW,......................................... 2011
DARNELL JACKSON, SAGINAW, ........................................ 2013
ROBERT L. KACZMAREK, FREELAND,.............................. 2009
11. CHARLES H. STARK, MUNISING, ...................................... 2009
12. GARFIELD W. HOOD, PELKIE, .......................................... 20093
13. THOMAS G. POWER, TRAVERSE CITY,............................... 2011
PHILIP E. RODGERS, JR., TRAVERSE CITY,....................... 2009
14. JAMES M. GRAVES, JR., MUSKEGON, ................................ 2013
TIMOTHY G. HICKS, MONTAGUE, ..................................... 2011
WILLIAM C. MARIETTI, NORTH MUSKEGON, .................... 2011

2
From September 8, 2008.
3
To September 30, 2008.
vii
 TERM EXPIRES
JANUARY 1 OF
JOHN C. RUCK, WHITEHALL,.............................................. 2009
15. MICHAEL H. CHERRY, COLDWATER, ................................. 2009
16. JAMES M. BIERNAT, SR., CLINTON TOWNSHIP, .................. 2011
RICHARD L. CARETTI, FRASER,....................................... 2011
MARY A. CHRZANOWSKI, HARRISON TOWNSHIP, .............. 2011
DIANE M. DRUZINSKI, SHELBY TOWNSHIP, ...................... 2009
JOHN C. FOSTER, CLINTON TOWNSHIP, ............................. 2009
PETER J. MACERONI, CLINTON TOWNSHIP, ...................... 2009
DONALD G. MILLER, HARRISON TOWNSHIP, ...................... 2013
EDWARD A. SERVITTO, JR., WARREN, ............................. 2013
MARK S. SWITALSKI, RAY TOWNSHIP, .............................. 2013
MATTHEW S. SWITALSKI, CLINTON TOWNSHIP,............... 2009
ANTONIO P. VIVIANO, CLINTON TOWNSHIP,...................... 2011
DAVID VIVIANO, STERLING HEIGHTS,................................. 2013
TRACEY A. YOKICH, ST. CLAIR SHORES,........................... 2013
17. GEORGE S. BUTH, GRAND RAPIDS, ................................... 2011
KATHLEEN A. FEENEY, ROCKFORD, ................................ 2009
DONALD A. JOHNSTON, III, GRAND RAPIDS, .................. 2013
DENNIS B. LEIBER, GRAND RAPIDS, ................................. 2013
STEVEN MITCHELL PESTKA, GRAND RAPIDS,............... 2011
JAMES ROBERT REDFORD, EAST GRAND RAPIDS, .......... 2011
PAUL J. SULLIVAN, GRAND RAPIDS, .................................. 2009
MARK A. TRUSOCK, COMSTOCK PARK,.............................. 2013
CHRISTOPHER P. YATES, EAST GRAND RAPIDS,............... 2013
DANIEL V. ZEMAITIS, GRAND RAPIDS, .............................. 2009
18. WILLIAM J. CAPRATHE, BAY CITY,................................. 2011
KENNETH W. SCHMIDT, BAY CITY,................................. 2013
JOSEPH K. SHEERAN, ESSEXVILLE,.................................. 2009
19. JAMES M. BATZER, MANISTEE,......................................... 2009
20. CALVIN L. BOSMAN, GRAND HAVEN, ................................ 2011
JON H. HULSING, JENISON, .............................................. 2009
EDWARD R. POST, GRAND HAVEN, .................................... 2011
JON VAN ALLSBURG, HOLLAND,...................................... 2013
21. PAUL H. CHAMBERLAIN, BLANCHARD, ............................ 2011
MARK H. DUTHIE, MT. PLEASANT, ................................... 2013
22. ARCHIE CAMERON BROWN, ANN ARBOR, ..................... 2011
TIMOTHY P. CONNORS, ANN ARBOR, .............................. 2013
MELINDA MORRIS, ANN ARBOR, ...................................... 2013
DONALD E. SHELTON, SALINE, ....................................... 2009
DAVID S. SWARTZ, ANN ARBOR,........................................ 2009
23. RONALD M. BERGERON, STANDISH, ............................... 2009
WILLIAM F. MYLES, EAST TAWAS, .................................... 2009
24. DONALD A. TEEPLE, SANDUSKY, ..................................... 2009
25. THOMAS L. SOLKA, MARQUETTE, ..................................... 2011
viii
 TERM EXPIRES
JANUARY 1 OF
JOHN R. WEBER, MARQUETTE,.......................................... 2009
26. JOHN F. KOWALSKI, ALPENA, .......................................... 2009
27. ANTHONY A. MONTON, PENTWATER, .............................. 2013
TERRENCE R. THOMAS, NEWAYGO, ................................ 2009
28. WILLIAM M. FAGERMAN, CADILLAC,............................... 2009
29. MICHELLE M. RICK, DEWITT,......................................... 2011
RANDY L. TAHVONEN, ELSIE,......................................... 2009
30. LAURA BAIRD, OKEMOS,.................................................... 2013
WILLIAM E. COLLETTE, EAST LANSING, ......................... 2009
JOYCE DRAGANCHUK, LANSING, .................................... 2011
JAMES R. GIDDINGS, WILLIAMSTON, ................................ 2011
JANELLE A. LAWLESS, OKEMOS,..................................... 2009
PAULA J.M. MANDERFIELD, EAST LANSING, .................. 2013
31. JAMES P. ADAIR, PORT HURON,......................................... 2013
PETER E. DEEGAN, PORT HURON, ................................... 2011
DANIEL J. KELLY, FORT GRATIOT,..................................... 2009
32. ROY D. GOTHAM, BESSEMER, ............................................ 2009
33. RICHARD M. PAJTAS, CHARLEVOIX, .................................. 2009
34. MICHAEL J. BAUMGARTNER, PRUDENVILLE, ................. 2011
35. GERALD D. LOSTRACCO, OWOSSO, ................................. 2009
36. WILLIAM C. BUHL, PAW PAW,.......................................... 2013
PAUL E. HAMRE, LAWTON,................................................ 2009
37. ALLEN L. GARBRECHT, BATTLE CREEK,.......................... 2011
JAMES C. KINGSLEY, ALBION, ......................................... 2009
STEPHEN B. MILLER, BATTLE CREEK,............................. 2011
CONRAD J. SINDT, HOMER, .............................................. 2013
38. JOSEPH A. COSTELLO, JR., MONROE, ............................. 2009
MICHAEL W. LABEAU, MONROE,....................................... 2013
MICHAEL A. WEIPERT, MONROE, .................................... 2011
39. HARVEY A. KOSELKA, ADRIAN, ....................................... 2009
TIMOTHY P. PICKARD, ADRIAN,....................................... 2013
40. MICHAEL P. HIGGINS, LAPEER, ....................................... 2009
NICK O. HOLOWKA, IMLAY CITY, ..................................... 2011
41. MARY BROUILLETTE BARGLIND, IRON MOUNTAIN, ..... 2011
RICHARD J. CELELLO, IRON MOUNTAIN,.......................... 2009
42. MICHAEL J. BEALE, MIDLAND,......................................... 2009
JONATHAN E. LAUDERBACH, MIDLAND, ...................... 2013
43. MICHAEL E. DODGE, EDWARDSBURG, ............................... 2011
44. STANLEY J. LATREILLE, HOWELL, ................................. 2013
DAVID READER, HOWELL,................................................. 2011
45. PAUL E. STUTESMAN, THREE RIVERS,............................. 2013
46. JANET M. ALLEN, GAYLORD, ............................................ 2011
DENNIS F. MURPHY, GAYLORD, ........................................ 2009
47. STEPHEN T. DAVIS, ESCANABA, ........................................ 2011
ix
 TERM EXPIRES
JANUARY 1 OF
48. WILLIAM A. BAILLARGEON, SAUGATUCK, ...................... 2009
GEORGE R. CORSIGLIA, ALLEGAN, ................................. 2011
49. SCOTT P. HILL-KENNEDY, BIG RAPIDS, .......................... 2013
RONALD C. NICHOLS, BIG RAPIDS, ................................. 2015
50. NICHOLAS J. LAMBROS, SAULT STE. MARIE, .................. 2013
51. RICHARD I. COOPER, LUDINGTON,................................... 2009
52. M. RICHARD KNOBLOCK, PORT AUSTIN, ........................ 2009
53. SCOTT LEE PAVLICH, CHEBOYGAN, ................................. 2011
54. PATRICK REED JOSLYN, CARO, ...................................... 2013
55. THOMAS R. EVANS, BEAVERTON, ...................................... 2009
ROY G. MIENK, GLADWIN, ................................................. 2013
56. THOMAS S. EVELAND, DIMONDALE,................................. 2013
CALVIN E. OSTERHAVEN, GRAND LEDGE,....................... 2009
57. CHARLES W. JOHNSON, PETOSKEY,................................. 2013

x
 DISTRICT JUDGES

TERM EXPIRES
JANUARY 1 OF
1. MARK S. BRAUNLICH, MONROE, ...................................... 2009
TERRENCE P. BRONSON, MONROE, ................................. 2013
JACK VITALE, MONROE, ..................................................... 2011
2A. NATALIA M. KOSELKA, ADRIAN, ...................................... 2011
JAMES E. SHERIDAN, ADRIAN, ......................................... 2009
2B. DONALD L. SANDERSON, HILLSDALE, ............................. 2009
3A. DAVID T. COYLE, COLDWATER,............................................ 2009
3B. JEFFREY C. MIDDLETON, THREE RIVERS, ....................... 2009
WILLIAM D. WELTY, THREE RIVERS,.................................. 2013
4. PAUL E. DEATS, EDWARDSBURG,.......................................... 2009
5. GARY J. BRUCE, ST. JOSEPH, ............................................. 2011
ANGELA PASULA, STEVENSVILLE,....................................... 2009
SCOTT SCHOFIELD, NILES,.............................................. 2009
STERLING R. SCHROCK, ST. JOSEPH, .............................. 20111
LYNDA A. TOLEN, STEVENSVILLE,....................................... 20132
DENNIS M. WILEY, ST. JOSEPH, ........................................ 2011
7. ARTHUR H. CLARKE, III, SOUTH HAVEN,......................... 2009
ROBERT T. HENTCHEL, PAW PAW,.................................. 2011
8-1. QUINN E. BENSON, KALAMAZOO,....................................... 2009
ANNE E. BLATCHFORD, KALAMAZOO, .............................. 2011
PAUL J. BRIDENSTINE, KALAMAZOO,................................ 2013
CAROL A. HUSUM, KALAMAZOO, ........................................ 2011
8-2. ROBERT C. KROPF, PORTAGE,............................................ 2009
8-3. RICHARD A. SANTONI, KALAMAZOO,................................. 2009
VINCENT C. WESTRA, KALAMAZOO, .................................. 2011
10. SAMUEL I. DURHAM, JR., BATTLE CREEK,........................ 2011
JOHN R. HOLMES, BATTLE CREEK,.................................... 2013
FRANKLIN K. LINE, JR., MARSHALL,................................. 2009
MARVIN RATNER, BATTLE CREEK,..................................... 2009
12. JOSEPH S. FILIP, JACKSON, ................................................ 2011
JAMES M. JUSTIN, JACKSON, ............................................. 2013
MICHAEL J. KLAEREN, JACKSON,..................................... 2009
R. DARRYL MAZUR, JACKSON, ........................................... 2009
14A. RICHARD E. CONLIN, ANN ARBOR,................................... 2009

1
From December 15, 2008.
2
To August 1, 2008.
xi
 TERM EXPIRES
JANUARY 1 OF
J. CEDRIC SIMPSON, YPSILANTI, ....................................... 2013
KIRK W. TABBEY, SALINE, .................................................. 2011
14B. JOHN B. COLLINS, YPSILANTI,........................................... 2009
15. JULIE CREAL, ANN ARBOR, ................................................ 2013
ELIZABETH POLLARD HINES, ANN ARBOR, .................. 2011
ANN E. MATTSON, ANN ARBOR, ........................................ 2009
16. ROBERT B. BRZEZINSKI, LIVONIA, .................................. 2009
KATHLEEN J. MCCANN, LIVONIA,..................................... 2013
17. KAREN KHALIL, REDFORD, ................................................ 2011
CHARLOTTE L. WIRTH, REDFORD,................................... 2009
18. C. CHARLES BOKOS, WESTLAND, ...................................... 2009
SANDRA A. CICIRELLI, WESTLAND, .................................. 2013
19. WILLIAM C. HULTGREN, DEARBORN, ............................... 2011
MARK W. SOMERS, DEARBORN, .......................................... 2009
RICHARD WYGONIK, DEARBORN,...................................... 2013
20. MARK J. PLAWECKI, DEARBORN HEIGHTS, ......................... 2009
DAVID TURFE, DEARBORN HEIGHTS, ................................... 2013
21. RICHARD L. HAMMER, JR., GARDEN CITY, ....................... 2009
22. SYLVIA A. JAMES, INKSTER, ............................................... 2013
23. GENO SALOMONE, TAYLOR, ............................................. 2013
WILLIAM J. SUTHERLAND, TAYLOR,............................... 2009
24. JOHN T. COURTRIGHT, ALLEN PARK,............................... 2009
RICHARD A. PAGE, ALLEN PARK, ...................................... 2011
25. DAVID A. BAJOREK, LINCOLN PARK, ................................. 2009
DAVID J. ZELENAK, LINCOLN PARK, .................................. 2011
26-1. RAYMOND A. CHARRON, RIVER ROUGE, .......................... 2009
26-2. MICHAEL F. CIUNGAN, ECORSE, ...................................... 2009
27. RANDY L. KALMBACH, WYANDOTTE, ................................ 2013
28. JAMES A. KANDREVAS, SOUTHGATE, ................................ 2009
29. LAURA REDMOND MACK, WAYNE, ................................. 2013
30. BRIGETTE R. OFFICER, HIGHLAND PARK, ........................ 2011
31. PAUL J. PARUK, HAMTRAMCK,............................................. 2009
32A. ROGER J. LA ROSE, HARPER WOODS, ................................. 2009
33. JAMES KURT KERSTEN, TRENTON, ................................. 2009
MICHAEL K. McNALLY, TRENTON, .................................... 2013
EDWARD J. NYKIEL, GROSSE ILE, ..................................... 2011
34. TINA BROOKS GREEN, NEW BOSTON,.............................. 2013
BRIAN A. OAKLEY, ROMULUS,............................................ 2011
DAVID M. PARROTT, BELLEVILLE,...................................... 2009
35. MICHAEL J. GEROU, PLYMOUTH,....................................... 2011
RONALD W. LOWE, CANTON, ............................................. 2013
JOHN E. MACDONALD, NORTHVILLE, ................................. 2009
36. LYDIA NANCE ADAMS, DETROIT, ..................................... 2011
ROBERTA C. ARCHER, DETROIT, ...................................... 2013
MARYLIN E. ATKINS, DETROIT, ........................................ 2013
JOSEPH N. BALTIMORE, DETROIT, .................................. 2009
NANCY MCCAUGHAN BLOUNT, DETROIT, ...................... 2009
IZETTA F. BRIGHT, DETROIT,............................................. 2011
ESTHER LYNISE BRYANT-WEEKES, DETROIT, .............. 2008
xii
 TERM EXPIRES
JANUARY 1 OF
RUTH C. CARTER, DETROIT, .............................................. 2011
DONALD COLEMAN, DETROIT, ......................................... 2013
NANCY A. FARMER, DETROIT,........................................... 2013
DEBORAH GERALDINE FORD, DETROIT, ....................... 2011
RUTH ANN GARRETT, DETROIT, ...................................... 2013
RONALD GILES, DETROIT, ................................................. 2013
JIMMYLEE GRAY, DETROIT, ............................................... 2009
KATHERINE HANSEN, DETROIT,...................................... 2011
BEVERLY J. HAYES-SIPES, DETROIT,............................... 2009
PAULA G. HUMPHRIES, DETROIT,.................................... 2011
PATRICIA L. JEFFERSON, DETROIT, ................................ 2009
VANESA F. JONES-BRADLEY, DETROIT, .......................... 2013
KENNETH J. KING, DETROIT,............................................ 2009
DEBORAH L. LANGSTON, DETROIT, ................................ 2013
WILLIE G. LIPSCOMB, JR., DETROIT,................................ 2009
LEONIA J. LLOYD, DETROIT,.............................................. 2011
MIRIAM B. MARTIN-CLARK, DETROIT,............................ 2011
DONNA R. MILHOUSE, DETROIT, ..................................... 2013
B. PENNIE MILLENDER, DETROIT,.................................. 2011
CYLENTHIA L. MILLER, DETROIT,................................... 2011
MARK A. RANDON, DETROIT, ............................................ 2009
KEVIN F. ROBBINS, DETROIT,............................................ 2013
DAVID S. ROBINSON, JR., DETROIT,.................................. 2013
C. LORENE ROYSTER, DETROIT, ...................................... 2013
37. JOHN M. CHMURA, WARREN,............................................ 2013
JENNIFER FAUNCE, WARREN, .......................................... 2009
DAWNN M. GRUENBURG, WARREN, ................................ 2011
WALTER A. JAKUBOWSKI, JR., WARREN, ........................ 20133
MATTHEW P. SABAUGH, WARREN,................................... 20134
38. NORENE S. REDMOND, EASTPOINTE, ............................... 2009
39. JOSEPH F. BOEDEKER, ROSEVILLE,.................................. 2009
MARCO A. SANTIA, FRASER,.............................................. 2013
CATHERINE B. STEENLAND, ROSEVILLE, ....................... 2011
40. MARK A. FRATARCANGELI, ST. CLAIR SHORES, .............. 2013
JOSEPH CRAIGEN OSTER, ST. CLAIR SHORES, ................ 2009
41A. MICHAEL S. MACERONI, STERLING HEIGHTS,................... 2009
DOUGLAS P. SHEPHERD, MACOMB TOWNSHIP, ................. 2013
STEPHEN S. SIERAWSKI, STERLING HEIGHTS,.................. 2011
KIMBERLEY ANNE WIEGAND, STERLING HEIGHTS, ........ 2013
41B. LINDA DAVIS, CLINTON TOWNSHIP,...................................... 2009
SEBASTIAN LUCIDO, CLINTON TOWNSHIP,......................... 2013
SHEILA A. MILLER, CLINTON TOWNSHIP, .......................... 2011
42-1. DENIS R. LEDUC, WASHINGTON, ......................................... 2009
42-2. PAUL CASSIDY, NEW BALTIMORE,........................................ 2013
43. KEITH P. HUNT, FERNDALE,................................................ 2013

3
To October 1, 2008.
4
To December 8, 2008.
xiii
 TERM EXPIRES
JANUARY 1 OF
JOSEPH LONGO, MADISON HEIGHTS,.................................. 2011
ROBERT J. TURNER, FERNDALE, ....................................... 2009
44. TERRENCE H. BRENNAN, ROYAL OAK, ........................... 2009
DANIEL SAWICKI, ROYAL OAK, ......................................... 2013
45A. WILLIAM R. SAUER, BERKLEY,.......................................... 2009
45B. MICHELLE FRIEDMAN APPEL, HUNTINGTON WOODS,.... 2009
DAVID M. GUBOW, HUNTINGTON WOODS, ........................... 2009
46. SHEILA R. JOHNSON, SOUTHFIELD, .................................. 2009
SUSAN M. MOISEEV, SOUTHFIELD,..................................... 2013
WILLIAM J. RICHARDS, BEVERLY HILLS, .......................... 2009
47. JAMES BRADY, FARMINGTON HILLS, .................................... 2009
MARLA E. PARKER, FARMINGTON HILLS,............................ 2011
48. MARC BARRON, BIRMINGHAM, ...................................................................... 2011
DIANE D’AGOSTINI, BLOOMFIELD HILLS,........................... 2013
KIMBERLY SMALL, WEST BLOOMFIELD, ............................. 2009
50. MICHAEL C. MARTINEZ, PONTIAC, .................................. 2009
PRESTON G. THOMAS, PONTIAC, ..................................... 2011
CYNTHIA THOMAS WALKER, PONTIAC, ......................... 2009
51. RICHARD D. KUHN, JR., WATERFORD, ............................... 2009
PHYLLIS C. MCMILLEN, WATERFORD, ............................... 2013
52-1. ROBERT BONDY, MILFORD,................................................ 2013
BRIAN W. MACKENZIE, NOVI, ........................................... 2009
DENNIS N. POWERS, HIGHLAND, ...................................... 2013
52-2. DANA FORTINBERRY, CLARKSTON, ................................... 2009
KELLEY RENAE KOSTIN, CLARKSTON,............................. 2011
52-3. LISA L. ASADOORIAN, ROCHESTER HILLS,......................... 2013
NANCY TOLWIN CARNIAK, ROCHESTER HILLS,................ 2011
JULIE A. NICHOLSON, ROCHESTER HILLS, ........................ 2009
52-4. WILLIAM E. BOLLE, TROY,............................................... 2009
DENNIS C. DRURY, TROY, ................................................. 2013
MICHAEL A. MARTONE, TROY, ....................................... 2011
53. THERESA M. BRENNAN, BRIGHTON, ................................ 2009
L. SUZANNE GEDDIS, BRIGHTON, ..................................... 2011
CAROL SUE READER, HOWELL,........................................ 2013
54A. LOUISE ALDERSON, LANSING,.......................................... 2011
PATRICK F. CHERRY, LANSING, ......................................... 2009
FRANK J. DELUCA, LANSING, ............................................. 2013
CHARLES F. FILICE, LANSING, .......................................... 2009
AMY R. KRAUSE, LANSING, ................................................ 2011
54B. RICHARD D. BALL, EAST LANSING, .................................... 2011
DAVID L. JORDON, EAST LANSING, .................................... 2013
55. ROSEMARIE ELIZABETH AQUILINA, EAST LANSING, ... 2011
THOMAS P. BOYD, OKEMOS, .............................................. 2009
56A. HARVEY J. HOFFMAN, GRAND LEDGE,.............................. 2011
JULIE H. REINCKE, EATON RAPIDS, .................................. 2009
56B. GARY R. HOLMAN, HASTINGS, ........................................... 2013
57. STEPHEN E. SHERIDAN, SAUGATUCK,.............................. 2013
JOSEPH S. SKOCELAS, PLAINWELL, .................................. 2009
58. SUSAN A. JONAS, SPRING LAKE, ........................................ 2009
xiv
 TERM EXPIRES
JANUARY 1 OF
RICHARD J. KLOOTE, GRAND HAVEN, .............................. 2013
BRADLEY S. KNOLL, HOLLAND, ........................................ 2009
KENNETH D. POST, ZEELAND,........................................... 2011
59. PETER P. VERSLUIS, GRAND RAPIDS, ................................ 2011
60. HAROLD F. CLOSZ, III, NORTH MUSKEGON, ....................... 2009
MARIA LADAS HOOPES, NORTH MUSKEGON,.................... 2009
MICHAEL JEFFREY NOLAN, TWIN LAKE, ....................... 2013
ANDREW WIERENGO, MUSKEGON, ................................... 2011
61. PATRICK C. BOWLER, GRAND RAPIDS, .............................. 2009
DAVID J. BUTER, GRAND RAPIDS, ....................................... 2009
J. MICHAEL CHRISTENSEN, GRAND RAPIDS,................... 2011
JEANINE NEMESI LAVILLE, GRAND RAPIDS,................... 2013
BEN H. LOGAN, II, GRAND RAPIDS, .................................... 2013
DONALD H. PASSENGER, GRAND RAPIDS, ....................... 2011
62A. PABLO CORTES, WYOMING,................................................ 2009
STEVEN M. TIMMERS, GRANDVILLE,................................. 2013
62B. WILLIAM G. KELLY, KENTWOOD,........................................ 2009
63-1. STEVEN R. SERVAAS, ROCKFORD, ..................................... 2009
63-2. SARA J. SMOLENSKI, EAST GRAND RAPIDS,....................... 2009
64A. RAYMOND P. VOET, IONIA, ................................................ 2009
64B. DONALD R. HEMINGSEN, SHERIDAN, .............................. 2009
65A. RICHARD D. WELLS, DEWITT,.......................................... 2009
65B. JAMES B. MACKIE, ALMA,................................................. 2009
66. WARD L. CLARKSON, CORUNNA, ....................................... 2013
TERRANCE P. DIGNAN, OWOSSO, ..................................... 2009
67-1. DAVID J. GOGGINS, FLUSHING,.......................................... 2009
67-2. JOHN L. CONOVER, DAVISON,........................................... 2009
RICHARD L. HUGHES, OTISVILLE, .................................... 2011
67-3. LARRY STECCO, FLUSHING,................................................ 2009
67-4. MARK C. MCCABE, FENTON,............................................... 2009
CHRISTOPHER ODETTE, GRAND BLANC,......................... 2013
68. TRACY L. COLLIER-NIX, FLINT, ...................................... 2009
WILLIAM H. CRAWFORD, II, FLINT,................................ 2013
MARY CATHERINE DOWD, FLINT, .................................. 20115
HERMAN MARABLE, JR., FLINT, ...................................... 2013
NATHANIEL C. PERRY, III, FLINT, .................................. 2009
70-1. TERRY L. CLARK, SAGINAW,............................................... 2013
M. RANDALL JURRENS, SAGINAW, ................................... 2011
M. T. THOMPSON, JR., SAGINAW, ....................................... 2009
70-2. CHRISTOPHER S. BOYD, SAGINAW,.................................. 2011
ALFRED T. FRANK, SAGINAW,............................................ 2009
KYLE HIGGS TARRANT, SAGINAW, ................................... 2013
71A. LAURA CHEGER BARNARD, METAMORA, ........................ 2009
JOHN T. CONNOLLY, LAPEER, ........................................... 2013
71B. KIM DAVID GLASPIE, CASS CITY, ..................................... 2009
72. RICHARD A. COOLEY, JR., PORT HURON, ......................... 2011

5
From August 23, 2008.
xv
 TERM EXPIRES
JANUARY 1 OF
JOHN D. MONAGHAN, PORT HURON, ............................... 2013
CYNTHIA SIEMEN PLATZER, LAKEPORT, ....................... 2009
73A. JAMES A. MARCUS, APPLEGATE,........................................ 2009
73B. DAVID B. HERRINGTON, BAD AXE, ................................. 2009
74. CRAIG D. ALSTON, BAY CITY, ........................................... 2009
TIMOTHY J. KELLY, BAY CITY,.......................................... 2013
SCOTT J. NEWCOMBE, BAY CITY, .................................... 2011
75. STEVEN CARRAS, MIDLAND,.............................................. 2011
JOHN HENRY HART, MIDLAND,......................................... 2009
76. WILLIAM R. RUSH, MT. PLEASANT, ................................... 2009
77. SUSAN H. GRANT, BIG RAPIDS, ......................................... 2009
78. H. KEVIN DRAKE, FREMONT,............................................. 2009
79. PETER J. WADEL, BRANCH, ............................................... 2009
80. GARY J. ALLEN, GLADWIN, ................................................. 2009
81. ALLEN C. YENIOR, STERLING, ........................................... 2009
82. RICHARD E. NOBLE, WEST BRANCH, ................................ 2009
83. DANIEL L. SUTTON, PRUDENVILLE, ................................... 2009
84. DAVID A. HOGG, HARRIETTA, ............................................. 2009
85. BRENT V. DANIELSON, MANISTEE, ................................... 2009
86. JOHN D. FORESMAN, TRAVERSE CITY, .............................. 2011
MICHAEL J. HALEY, TRAVERSE CITY,................................. 2009
THOMAS J. PHILLIPS, TRAVERSE CITY,............................. 2013
87. PATRICIA A. MORSE, GAYLORD, ........................................ 2009
88. THEODORE O. JOHNSON, ALPENA,................................. 2009
89. HAROLD A. JOHNSON, JR., CHEBOYGAN, .......................... 2009
90. RICHARD W. MAY, CHARLEVOIX,.......................................... 2009
91. MICHAEL W. MACDONALD, SAULT STE. MARIE,................ 2009
92. BETH GIBSON, NEWBERRY,................................................. 2009
93. MARK E. LUOMA, MUNISING,............................................. 2009
94. GLENN A. PEARSON, GLADSTONE, .................................... 2009
95A. JEFFREY G. BARSTOW, MENOMINEE,................................ 2009
95B. MICHAEL J. KUSZ, IRON MOUNTAIN, .................................. 2009
96. DENNIS H. GIRARD, MARQUETTE, ..................................... 2011
ROGER W. KANGAS, ISHPEMING,........................................ 2009
97. PHILLIP L. KUKKONEN, HANCOCK, ................................. 2009
98. ANDERS B. TINGSTAD, JR., BESSEMER,............................ 2009

xvi
 MUNICIPAL JUDGES

TERM EXPIRES
JANUARY 1 OF
RUSSELL F. ETHRIDGE, GROSSE POINTE,............................. 2012
CARL F. JARBOE, GROSSE POINTE PARK, ................................ 2010
LYNNE A. PIERCE, GROSSE POINTE WOODS,........................... 2012
MATTHEW R. RUMORA, GROSSE POINTE FARMS, .................. 2010

xvii
 PROBATE JUDGES

TERM EXPIRES
COUNTY JANUARY 1 OF
Alcona .......................LAURA A. FRAWLEY .............................. 2013
Alger/Schoolcraft ......WILLIAM W. CARMODY ......................... 2013
Allegan ......................MICHAEL L. BUCK ................................. 2013
Alpena .......................THOMAS J. LACROSS ............................. 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, JR. ....................... 2013
Dickinson ..................THOMAS D. SLAGLE .............................. 2013
Eaton.........................MICHAEL F. SKINNER........................... 2013
Emmet/Charlevoix ...FREDERICK R. MULHAUSER .............. 2013
Genesee .....................JENNIE E. BARKEY ............................... 2009
Genesee .....................ROBERT E. WEISS .................................. 2013
Gogebic......................JOEL L. MASSIE...................................... 2013
Grand Traverse ........DAVID L. STOWE .................................... 2013
Gratiot.......................JACK T. ARNOLD .................................... 2013
Hillsdale ....................MICHAEL E. NYE.................................... 2013
Houghton ..................CHARLES R. GOODMAN ....................... 2013

xviii
Huron........................DAVID L. CLABUESCH .......................... 2013
Ingham......................R. GEORGE ECONOMY.......................... 2013
Ingham......................RICHARD JOSEPH GARCIA.................. 2009
Ionia ..........................ROBERT SYKES, JR................................. 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, JR................................. 2013
Kalamazoo ................PATRICIA N. CONLON ........................... 2009
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 ........................ 2009
Keweenaw .................JAMES G. JAASKELAINEN ................... 2013
Lake...........................MARK S. WICKENS................................. 2013
Lapeer .......................JUSTUS C. SCOTT .................................. 2013
Leelanau ...................JOSEPH E. DEEGAN .............................. 2013
Lenawee ....................MARGARET MURRAY-SCHOLZ NOE... 2013
Livingston .................CAROL HACKETT GARAGIOLA........... 2013
Luce/Mackinac..........W. CLAYTON GRAHAM .......................... 2013
Macomb.....................KATHRYN A. GEORGE........................... 2009
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, JR. .......................... 2013
Monroe ......................PAMELA A. MOSKWA ............................. 2009
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.....................BARRY M. GRANT................................... 2009
Oakland.....................LINDA S. HALLMARK ............................ 2013
Oakland.....................EUGENE ARTHUR MOORE .................. 2011
Oakland.....................ELIZABETH M. PEZZETTI .................... 2011
Oceana ......................BRADLEY G. LAMBRIX .......................... 2013
Ogemaw ....................SHANA A. LAMBOURN.......................... 2013
xix
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 ............................... 2009
Saginaw.....................PATRICK J. MCGRAW.............................. 2013
St. Clair.....................ELWOOD L. BROWN............................... 2009
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, JR........................... 2013
Van Buren.................FRANK D. WILLIS................................... 2013
Washtenaw................NANCY CORNELIA FRANCIS............... 2009
Washtenaw................DARLENE A. O’BRIEN ........................... 2013
Wayne........................JUNE E. BLACKWELL-HATCHER ....... 2013
Wayne........................FREDDIE G. BURTON, JR. ..................... 2013
Wayne........................JUDY A. HARTSFIELD ........................... 2009
Wayne........................MILTON L. MACK, JR. ............................ 2011
Wayne........................CATHIE B. MAHER ................................. 2011
Wayne........................MARTIN T. MAHER................................. 2009
Wayne........................DAVID J. SZYMANSKI ............................ 2009
Wayne........................FRANK S. SZYMANSKI .......................... 2013
Wexford .....................KENNETH L. TACOMA .......................... 2013

xx
 JUDICIAL CIRCUITS

County Seat Circuit County Seat Circuit

Alcona....................Harrisville ......... 26 Lake ................Baldwin ................. 51
Alger ......................Munising ........... 11 Lapeer .............Lapeer ................... 40
Allegan ..................Allegan............... 48 Leelanau .........Leland ................... 13
Alpena ...................Alpena................ 26 Lenawee ..........Adrian ................... 39
Antrim...................Bellaire .............. 13 Livingston.......Howell ................... 44
Arenac ...................Standish ............ 34 Luce.................Newberry .............. 11
Baraga ...................L’Anse................ 12 Mackinac.........St. Ignace .............. 50
Barry .....................Hastings ............ 5 Macomb...........Mount Clemens .... 16
Bay.........................Bay City............. 18 Manistee .........Manistee................ 19
Benzie....................Beulah ............... 19 Marquette .......Marquette ............. 25
Berrien ..................St. Joseph .......... 2 Mason..............Ludington ............. 51
Branch...................Coldwater .......... 15
Mecosta ...........Big Rapids............. 49
Calhoun.................Marshall, Battle Menominee .....Menominee ........... 41
Creek................ 37 Midland...........Midland ................. 42
Cass .......................Cassopolis .......... 43 Missaukee .......Lake City .............. 28
Charlevoix .............Charlevoix ......... 33 Monroe............Monroe .................. 38
Cheboygan ............Cheboygan......... 53 Montcalm........Stanton.................. 8
Chippewa ..............Sault Ste. Marie. 50 Montmorency .Atlanta .................. 26
Clare ......................Harrison ............ 55 Muskegon .......Muskegon.............. 14
Clinton ..................St. Johns............ 29
Crawford ...............Grayling............. 46 Newaygo .........White Cloud .......... 27
Delta ......................Escanaba ........... 47 Oakland ..........Pontiac .................. 6
Dickinson ..............Iron Mountain .. 41 Oceana ............Hart ....................... 27
Ogemaw ..........West Branch.......... 34
Eaton.....................Charlotte ........... 5 Ontonagon ......Ontonagon ............ 32
Emmet...................Petoskey ............ 33 Osceola............Reed City .............. 49
Oscoda.............Mio......................... 23
Genesee .................Flint ................... 7 Otsego .............Gaylord.................. 46
Gladwin .................Gladwin ............. 55 Ottawa ............Grand Haven ........ 20
Gogebic..................Bessemer ........... 32
Grand Traverse ....Traverse City .... 13 Presque Isle ....Rogers City ........... 26
Gratiot...................Ithaca................. 29
Roscommon ....Roscommon........... 34
Hillsdale ................Hillsdale ............ 1
Houghton ..............Houghton .......... 12 Saginaw...........Saginaw................. 10
Huron ....................Bad Axe ............. 52 St. Clair ..........Port Huron ........... 31
Ingham ..................Mason, Lansing. 30 St. Joseph .......Centreville............. 45
Ionia ......................Ionia................... 8 Sanilac.............Sandusky............... 24
Iosco ......................Tawas City ........ 23 Schoolcraft......Manistique ............ 11
Iron........................Crystal Falls ...... 41 Shiawassee......Corunna ................ 35
Isabella ..................Mount Pleasant. 21
Tuscola............Caro ....................... 54
Jackson..................Jackson .............. 4
Van Buren.......Paw Paw................ 36
Kalamazoo ............Kalamazoo......... 9
Kalkaska ...............Kalkaska............ 46 Washtenaw......Ann Arbor............. 22
Kent.......................Grand Rapids .... 17 Wayne..............Detroit ................... 3
Keweenaw .............Eagle River........ 12 Wexford ...........Cadillac.................. 28

xxi
 TABLE OF CASES REPORTED
17 CASES; 39 OPINIONS; 1170 ACTIONS ON APPLICATIONS
FOR LEAVE TO APPEAL GRANTED OR DENIED

(Lines set in small type refer to actions on application for leave

to appeal from the Court of Appeals starting at page 851, and to
special orders in other matters starting at page 1201.)

A PAGE
A D Transport Express, Inc, Shope v .................................. 1070
A&A Med Transportation Services, Inc, Allstate Ins Co v ... 1029
AWM Corp, Elmer’s Crane & Dozer, Inc v ......................... 1187
Abe v Michigan State Univ ................................................... 1078
Abram, People v ..................................................................... 1033
Acemco, Inc v Ryerson Tull Coil Processing ....................... 999
Acme Twp, Concerned Citizens of Acme Twp v ................. 1037
Adamasu v Gifford, Krass, Groh, Sprinkle, Anderson &
Citkowski, PC ................................................................... 1074
Adams v Orion Charter Twp ................................................ 992
Adams, People v ..................................................................... 988
Adkins, People v .................................................................... 1030
Adrian Energy Ass’n, LLC v Pub Service Comm ............... 986
Advance Temporary Services, Inc, Smith v ........................ 984
Advantage 99 TD, Baere Co v .............................................. 974
Albert, People v ..................................................................... 1063
Alexander v Babaoff .............................................................. 1062
Ali, People v ........................................................................... 1066
Alif, People v .......................................................................... 976
Allied Automotive Group, Inc, Innes v ................................ 970
Allstate Ins Co v A&A Med Transportation Services, Inc ..... 1029
Allstate Ins Co, Best Care Rehabilitation, Inc v ................. 1029
Allstate Ins Co, Broe Rehabilitation Services, Inc v .......... 1034
Allstate Ins Co, Healing Place at North Oakland Med
Ctr v ......................................................................................... 880
xxiii
xxiv 482 MICH REPORTS

PAGE

Allstate Ins Co, Preferred Medicine, Inc v .......................... 1029

Alticor, Inc, Kenney v ............................................................ 1008
Altman, People v ................................................................... 974
Alton v Alton ......................................................................... 1066
Alton, People v ....................................................................... 880
Alumi-Bunk, Inc, Gen Motors Corp v .................................. 1080
Ambers, People v ................................................................... 1067
American Axle & Mfg Holdings, Inc, Van Wynsberghe v .. 1017
Ameritech Publishing, Inc v Dep’t of Treasury .................. 1071
Anderson, Hart v ................................................................... 1069
Anderson, People v (Darnell) ................................................ 971
Anderson, People v (Darron) ................................................ 976
Anderson, People v (Eddie) ................................................... 980
Anderson, People v (Kenneth) .............................................. 898
Anderson v State Farm Mut Automobile Ins Co ................ 1038
Andres v Brown ..................................................................... 985
Android Industries, LLC, Garner v ...................................... 1035
Anglers of the Ausable, Inc v Dep’t of Environmental
Quality ............................................................................... 1078
Ann Arbor Pub Schools, Goulet v ........................................ 898
Annabel, People v .................................................................. 972
Anton, People v ...................................................................... 971
Armstrong, People v (Jamahl) .............................................. 895
Armstrong, People v (Richard) ............................................. 891
Ashworth, People v ................................................................ 1186
Askew v Dep’t of Corrections ............................................... 1040
Askew, People v ...................................................................... 988
Asplundh Tree Expert Co, Schindler v ................................ 882
Atkins, People v (Demon) ..................................................... 976
Atkins, People v (Jamal) ....................................................... 1066
Atkinson, People v ................................................................. 1067
Attorney General v Pub Service Comm .............................. 984
Attorney Grievance Comm, Wendel v .................................. 1044
Aussicker, People v ................................................................ 893
Auto Club Group Ins Co v Braley ........................................ 949
Auto Club Ins Assoc, Cooper v ............................................. 1201
Auto-Owners Ins Co, Benefiel v ........................................... 1087
Auto-Owners Ins Co, Dobbelaere v ...................................... 899
Autozone, Inc, Lofton v ........................................................ 1005
 TABLE OF CASES REPORTED xxv

PAGE

B
Babaoff, Alexander v ............................................................. 1062
Bachynski, People v ............................................................... 1070
Bacon, People v ...................................................................... 1066
Baere Co v Advantage 99 TD ............................................... 974
Baez, People v ........................................................................ 1032
Baisden, People v ................................................................... 1000
Baker v St. John Health Sys ................................................ 1039
Bakshi, Seyburn, Kahn, Ginn, Bess, Deitch, & Serlin,
PC v ................................................................................... 1077
Baldwin, People v .................................................................. 892
Ballentine, People v ............................................................... 990
Ballinger, People v ................................................................. 975
Bane v Bane ........................................................................... 1018
Bank One Trust Co, Evans v (In re Ervin Testamentary
Trust) ................................................................................. 989
Banks, People v ...................................................................... 1051
Bannasch, People v ................................................................ 893
Barnes, Dep’t of Human Services v (In re Barnes) ............ 1105
Barnes, In re (Dep’t of Human Services v Barnes) ............ 1105
Barnes, People v .................................................................... 1067
Barnett, People v ................................................................... 1066
Basat, People v ....................................................................... 899
Baskin, People v .................................................................... 1067
Bates, People v ....................................................................... 1118
Batey, People v ....................................................................... 971
Battle Creek (City of), Munster v ........................................ 897
Baumgart v State of Michigan ............................................. 987
Bautista v Miresco Promotional Sales, Inc ......................... 896
Bavas, Tomecek v ................................................ 484
Bay Co, Nowak v ................................................................... 1186
Bayer, People v ....................................................................... 1000
Beach v Kelly Automotive Group, Inc ................................. 1101
Bean, People v ....................................................................... 896
Beasley, People v .................................................................... 1066
Bechtol, People v ................................................................... 1030
Beck v TGM Broadband Cable Services .............................. 899
Beckes v Detroit Diesel Corp ................................................ 998
Bedinger, People v ................................................................. 896
Beechler v Beechler ............................................................... 990
Beeman, People v .................................................................. 898
xxvi 482 MICH REPORTS

PAGE

Begin v Michigan Bell Tel Co/SBC ...................................... 976

Belisle, People v ..................................................................... 895
Bell, People v (Andrew) ......................................................... 976
Bell, People v (Osdemond) .................................................... 894
Bemer, People v ..................................................................... 1117
Benefiel v Auto-Owners Ins Co ............................................ 1087
Benner, People v .................................................................... 977
Berger, People v ..................................................................... 896
Bernaiche, People v ............................................................... 1078
Bero, People v ........................................................................ 1068
Bersamina, In re (Dep’t of Human Services v McCarthy) .... 889
Bessinger v Our Lady of Good Counsel ............................... 996
Best Care Rehabilitation, Inc v Allstate Ins Co .................. 1029
Big L Corp v Courtland Constr Co ...................................... 1090
Binienda, People v ................................................................. 984
Binschus, People v ................................................................. 970
Birds Eye Foods, Inc, Robinson v ........................................ 1036
Bishop, People v ..................................................................... 1119
Black, People v ....................................................................... 1072
Blanks, People v .................................................................... 974
Blasengame, People v ............................................................ 1064
Blaszczyk v Liberty Mut Fire Ins Co ................................... 1186
Bleau v Gen Motors Corp ..................................................... 975
Bliss, People v ........................................................................ 1071
Bloomfield, People v .............................................................. 1071
Blumenthal, People v ............................................................ 1031
Boadway, People v ................................................................. 1058
Bob Turner, Inc v Frisbee ..................................................... 992
Bon Secours Cottage Health Services, Perry v ................... 898
Bond v Cooper ....................................................................... 1018
Bonior, People v ..................................................................... 1037
Bonney, People v .................................................................... 1073
Boodt v Borgess Med Ctr ...................................................... 1001
Boomer, Haycock v ................................................................ 1187
Borgess Med Ctr, Boodt v ..................................................... 1001
Borgess Med Ctr v Resto ...................................................... 946
Bortz Health Care Facilities, Inc, Pappas v ........................ 948
Boston, People v .................................................................... 989
Botsford Gen Hosp, Overbay v ............................................. 1154
Bourgeois, People v ............................................................... 991
Bowens-Frazier, People v ...................................................... 1029
 TABLE OF CASES REPORTED xxvii

PAGE

Bowers, People v .................................................................... 894

Boyd, People v (Christopher) ................................................ 1070
Boyd, People v (Derrick) ....................................................... 989
Boyd, People v (James) ......................................................... 1067
Boyt, People v ........................................................................ 977
Brackett v Focus Hope, Inc ................................. 269
Brackett v Focus Hope, Inc .................................................. 1001
Bradbury, People v ................................................................. 895
Braddock v JGR, Inc ............................................................. 982
Bradley, People v .................................................................... 1030
Braley, Auto Club Group Ins Co v ....................................... 949
Brashers v VanderRoest ........................................................ 977
Braswell, People v ................................................................. 1029
Braverman v Pierce ............................................................... 1033
Brennan, People v ................................................................. 1067
Brewer, People v .................................................................... 991
Brewster, People v ................................................................. 1068
Bridges, People v ................................................................... 1063
Briedenstein, People v ........................................................... 1013
Briggs, People v ..................................................................... 1036
Bright, Grand Rapids v ......................................................... 1186
Brisbane, People v ................................................................. 1072
Bristol Mfg, Inc v Jennings Gen Maintenance, Inc ............ 1034
Brock, People v ...................................................................... 1186
Brockman, People v ............................................................... 1078
Broe Rehabilitation Services, Inc v Allstate Ins Co. .......... 1034
Broglin, People v .................................................................... 895
Bronson Methodist Hosp v Kurtz ........................................ 1034
Brooks v Court of Appeals .................................................... 1012
Brooks, People v .................................................................... 974
Brown, Andres v .................................................................... 985
Brown v Dep’t of Corrections ............................................... 976
Brown, People v (Craig) ........................................................ 1063
Brown, People v (Devaughn) ................................................ 895
Brown, People v (Jeffrey) ............................................ 988, 1072
Brown, People v (Patrick) ..................................................... 1070
Brown, People v (Rasheen) ................................................... 1035
Brown, People v (Reginald) .................................................. 972
Brown, People v (Stanley) .................................................... 978
Brown, People v (Steven) ...................................................... 896
Brown, People v (Timothy) ................................................... 987
xxviii 482 MICH REPORTS

PAGE

Brown, People v (Torial) ....................................................... 1186

Bruley, People v ..................................................................... 1071
Bryant v Bryant ..................................................................... 1067
Bryant, People v (Bennie) ..................................................... 896
Bryant, People v (Richard) ................................................... 981
Buchanan, People v ............................................................... 1064
Budget Rent-A-Car Sys, Inc v Detroit ................................. 1098
Buggs, People v ...................................................................... 1070
Buley, People v ....................................................................... 899
Bullitt, People v ..................................................................... 881
Burbridge, People v ............................................................... 881
Bureau of Constr Codes & Fire Safety, Guardian
Environmental Services, Inc v ........................................ 1033
Burgess, People v ................................................................... 971
Burke v Burke Rental Services, Inc .................................... 974
Burke Rental Services, Inc, Burke v ................................... 974
Burlingame v Nationsrent, Inc ............................................ 975
Burrows, People v .................................................................. 1070
Burton, People v .................................................................... 1033
Busby, Village of Northport v ............................................... 1004
Bush v Shabahang ....................................................... 1014, 1105
Bussa v Bussa ........................................................................ 1186
Bussler, People v .................................................................... 897
Butler, People v ...................................................................... 1031

C
Calhoun, People v .................................................................. 1034
Campbell, People v (Anthony) .............................................. 988
Campbell, People v (Joseph) ................................................. 1062
Cann, Village of Northport v ................................................ 1004
Carey, People v ....................................................................... 1035
Carico, People v ..................................................................... 992
Carless, People v .................................................................... 992
Carlson, People v ................................................................... 1065
Carpenter, People v ............................................................... 897
Carr v Ford Motor Co ........................................................... 1186
Carr, People v ......................................................................... 895
Carrier, McCormick v ............................................................ 1018
Carrier, People v .................................................................... 987
Carswell, People v .................................................................. 899
Carter, People v (Deandre) ................................................... 891
 TABLE OF CASES REPORTED xxix

PAGE

Carter, People v (Jeffrey) ...................................................... 894

Cass, People v ........................................................................ 1064
Catholic Social Services of Oakland Co v McClain-Allen
(In re McClain) ................................................................. 1012
Cato, People v ........................................................................ 1154
Chadwick, People v ................................................................ 982
Chalfin v Jerkins ................................................................... 990
Chambers, People v ...................................................... 980, 1156
Chambers v Wayne Co Airport Auth .......................... 1013, 1136
Chandler, People v ................................................................. 1187
Charles L Pugh Co, Inc, Vanerian v .................................... 1074
Charlevoix Co, McNeil v ....................................................... 1014
Charobee, People v ................................................................ 1065
Chatwell Club Apartments, Royce v .................................... 1045
Chaudhry, People v ................................................................ 990
Chavali, McIntyre v ............................................................... 1185
Chavies, People v ................................................................... 891
Chmielewski, People v ........................................................... 1033
Christian-Bates, People v ...................................................... 882
Churchill v JP King Auction Co, Inc ................................... 1044
Ciaramitaro v Greektown Casino, LLC ...................... 977, 1037
Citizens Protecting Michigan’s Constitution v Secretary
of State ........................................................................ 949, 960
City of Battle Creek, Munster v ........................................... 897
City of East Lansing, Pavlovskis v ....................................... 992
City of Ecorse v Ecorse Brownfield Redevelopment
Auth ................................................................................... 949
City of Ferndale, Safiedine v ................................................ 995
Clapper, Tacco Falcon Point, Inc v ....................................... 1156
Clark, People v (Curtis) ........................................................ 1070
Clark, People v (Douglas) ..................................................... 989
Clarke, People v (Lamar) ...................................................... 1032
Clarke, People v (Tina) ......................................................... 1032
Clawson, Gitler v ................................................................... 1038
Clifton, People v .................................................................... 896
Coates, People v (Keith) ........................................................ 1070
Coates, People v (Vincent) .................................................... 892
Coats, People v ....................................................................... 974
Cobb, Dep’t of Human Services v (In re Cobb) .................. 1028
Cobb, In re (Dep’t of Human Services v Cobb) .................. 1028
Coca Cola Enterprises, Leslie v ............................................ 977
xxx 482 MICH REPORTS

PAGE

Colbert, People v .................................................................... 996

Cole, People v ......................................................................... 1029
Coleman, People v (Jerry) ..................................................... 989
Coleman, People v (Maurice) ................................................ 894
Collins, People v ........................................................... 1006, 1156
Comcast Cablevision Corp, Wilson v ........................... 975, 1017
Comerica, Inc, Jones v .......................................................... 890
Community Health (Dep’t of), Hansen v ............................ 1009
Community Health (Dep’t of), Mericka v ........................... 996
Compton v Pass ..................................................................... 1038
Comstock, People v ................................................................ 1037
Comstock Pub Schools, Murray v ........................................ 1070
Conbraco Industries, Inc & Citizens Ins Co v Northern
Industrial Refrigeration, Inc, Fed Ins Co v .................... 1033
Concerned Citizens of Acme Twp v Acme Twp .................. 1037
Conley, People v ..................................................................... 1064
Continental Teves, Inc v Wescast Ind Cordele, LLC ......... 895
Cook, People v (Brandon) ..................................................... 1119
Cook, People v (Gregory) ...................................................... 1036
Cooley, People v ..................................................................... 893
Cooper v Auto Club Ins Assoc .............................................. 1201
Cooper, Bond v ....................................................................... 1018
Cooper, Grievance Administrator v ............................ 883, 1079
Cooper, People v (Dexter) ..................................................... 900
Cooper, People v (Montez) ............................................ 973, 1037
Corbiere, People v .................................................................. 892
Corrections (Dep’t of), Askew v ........................................... 1040
Corrections (Dep’t of), Brown v ........................................... 976
Corrections (Dep’t of), Diot v ............................................... 997
Corrections (Dep’t of), Jones v ............................................. 973
Corrections (Dep’t of), Moore v ............................................ 1034
Corrections (Dep’t of), Neal v ....................................... 984, 1012
Corrections (Dep’t of), Shulick v .......................................... 990
Corrections (Dep’t of), Spencer v ......................................... 1068
Corrections (Dep’t of), Taylor v ........................................... 1017
Corrion v Livingston Circuit Judge ..................................... 978
Cort Furniture Rental, Kruse v ........................................... 1009
Cotter v Tassell Estate (In re Leslie E Tassell Trusts) ...... 895
Cottrell, People v ................................................................... 1067
Court of Appeals, Brooks v ................................................... 1012
Courtland Constr Co, Big L Corp v ..................................... 1090
 TABLE OF CASES REPORTED xxxi

PAGE

Courtney, People v ................................................................. 1032

Cowans, People v ................................................................... 989
Crago, Empson-LaViolette v ................................................. 1077
Crater, People v ..................................................................... 972
Crawford, Inc (J T), SBC v ................................................... 1046
Crenshaw, People v ................................................................ 1035
Crittenton Hosp, Ligons v .................................................... 1005
Cuellar, People v .................................................................... 1069
Curb, People v ........................................................................ 1068
Curry, People v (Jacqueline) ................................................. 1034
Curry, People v (Michael) ...................................................... 1186
Curtis, Harvey v .................................................................... 897
Custer, People v ..................................................................... 972

D
D & H Market, Inc, Farm Bureau Gen Ins Co of
Michigan v ............................................................................... 984
D & T Emerald Creek, Inc, Gauthier v ............................... 899
DSI Acoustical Co, Malloy v ................................................. 986
DTE Energy, McMillian v ..................................................... 1071
Dahringer, Goodman v .......................................................... 899
DaimlerChrysler Corp, Robertson v .................................... 997
DaimlerChrysler Corp v State Tax Comm ........ 220
DaimlerChrysler Corp v State Tax Comm .......................... 1004
Dalton, People v ..................................................................... 991
Damron, People v .................................................................. 1032
Daniels, People v ................................................................... 990
Dates, People v ...................................................................... 1064
Daugherty, People v ............................................................... 1067
David, People v ...................................................................... 973
Davis v Forest River, Inc ....................................................... 1123
Davis, Harris v ....................................................................... 897
Davis, People v (James) ........................................................ 1063
Davis, People v (Jerron) ........................................................ 896
Davis, People v (Keith) .......................................................... 978
Davis, People v (Randall) ...................................................... 1064
Davis, People v (Scott) .......................................................... 972
Davis, Village of Northport v ............................................... 1004
Dawkins, People v ................................................................. 1065
Dayton Freight Lines, Lewis v ............................................. 990
DeBerry, People v .................................................................. 1069
xxxii 482 MICH REPORTS

PAGE

Delazzer, People v .................................................................. 1077

Dell v St Clair Circuit Court ................................................ 899
Delphi Corp, McFadden v ..................................................... 1036
Denison, People v .................................................................. 895
Dep’t of Community Health, Hansen v ............................... 1009
Dep’t of Community Health, Mericka v .............................. 996
Dep’t of Corrections, Askew v .............................................. 1040
Dep’t of Corrections, Brown v .............................................. 976
Dep’t of Corrections, Diot v .................................................. 997
Dep’t of Corrections, Jones v ............................................... 973
Dep’t of Corrections, Moore v .............................................. 1034
Dep’t of Corrections, Neal v ......................................... 984, 1012
Dep’t of Corrections, Shulick v ............................................ 990
Dep’t of Corrections, Spencer v ........................................... 1068
Dep’t of Corrections, Taylor v .............................................. 1017
Dep’t of Environmental Quality, Anglers of the Ausable,
Inc v ................................................................................... 1078
Dep’t of Environmental Quality v Rexair, Inc .................... 1009
Dep’t of Environmental Quality, Vemulapalli v .................. 974
Dep’t of Human Services v Barnes (In re Barnes) ............. 1105
Dep’t of Human Services v Cobb (In re Cobb) ................... 1028
Dep’t of Human Services v Lee (In re Lee) ........................ 1116
Dep’t of Human Services v McBride, (In re McBride) ....... 949
Dep’t of Human Services v McCarthy (In re Bersamina) .. 889
Dep’t of Human Services v Morgan (In re Hudson) .......... 1038
Dep’t of Human Services v Rood (In re Rood) ................... 900
Dep’t of Human Services v Ross (In re Ross) ..................... 983
Dep’t of Human Services v Sanders (In re Robbins) ......... 1013
Dep’t of Human Services v Schultz (In re Momany) ......... 949
Dep’t of Human Services v Segar (In re Segar) .................. 1077
Dep’t of Human Services v Smith (In re Smith) ................ 1001
Dep’t of Human Services v Southard (In re Southard) ..... 1077
Dep’t of Human Services v Valdez (In re Valdez) ............... 1043
Dep’t of Human Services v Wade (In re Wade) .................. 1001
Dep’t of Labor & Economic Growth, Schils v ..................... 1156
Dep’t of State Police, Wallace v ............................................ 949
Dep’t of Treasury, Ameritech Publishing, Inc v ................. 1071
Dep’t of Treasury, McLeod v ................................................ 977
Dep’t of Treasury, NSK Corp v ............................................ 978
Dep’t of Treasury, Toaz v ..................................................... 1067
Dep’t of Treasury, Tyson Foods, Inc v ................................. 899
 TABLE OF CASES REPORTED xxxiii

PAGE

Detroit, Budget Rent-A-Car Sys, Inc v ................................ 1098

Detroit, Detroit Fire Fighters Ass’n v ............... 18
Detroit, Mingo v .................................................................... 1066
Detroit Diesel Corp, Beckes v ............................................... 998
Detroit Diesel Corp v State Tax Comm ............. 220
Detroit Edison Co, In re Application of ............................... 985
Detroit Fire Fighters Ass’n v Detroit ................ 18
Detroit Muni Parking Dep’t, Gray v .................................... 897
Dewitt v Sealtex Co, Inc ....................................................... 1034
Dexter, People v ..................................................................... 898
Deyo v Deyo ........................................................................... 1066
Diaz, People v ........................................................................ 1064
Diot v Dep’t of Corrections ................................................... 997
Dixon, People v (Deangelo) ................................................... 989
Dixon, People v (Earl) ........................................................... 970
Dixon, People v (James) ........................................................ 1033
Dixon, People v (Terry) ......................................................... 1067
Dobbelaere v Auto-Owners Ins Co ....................................... 899
Donald, People v .................................................................... 1006
Doolittle, People v ................................................................. 1031
Dortch, People v .................................................................... 972
Dow Chem Co, Henry v ........................................................ 1043
Downs v Keebler .................................................................... 898
Dozier, People v ..................................................................... 1000
Drake v Schantz-Rontal ............................................... 890, 1037
Draughn, People v ................................................................. 983
Drummond, People v ............................................................. 996
Dryer, People v ....................................................................... 1031
Duckett, People v ................................................................... 1030
Duncan, Wolford v ................................................................. 1068
Duncil, People v ..................................................................... 974
Dunnuck, People v ................................................................. 1036
Duran, People v ..................................................................... 1186

E
Earl, People v ......................................................................... 976
East Lansing (City of), Pavlovskis v .................................... 992
Eaton, People v ...................................................................... 976
Eaton Corp, Martin v ............................................................ 1008
Eckmyre, People v ................................................................. 1069
Ecorse Brownfield Redevelopment Auth, City of Ecorse v ... 949
xxxiv 482 MICH REPORTS

PAGE

Ecorse (City of) v Ecorse Brownfield Redevelopment Auth .. 949

Edge, People v ........................................................................ 1069
Edwards, People v ........................................................... 893, 898
Eifler v Swartz (In re Miltenberger) .................................... 901
Elie, People v ......................................................................... 1033
Elliott, People v ..................................................................... 1065
Ellis v Farm Bureau Ins Co .............................. 889, 1018, 1119
Ellis, People v ........................................................................ 891
Elmer’s Crane & Dozer, Inc v AWM Corp .......................... 1187
Empson-LaViolette v Crago .................................................. 1077
Engdahl, People v .................................................................. 1063
Environmental Quality (Dep’t of), Anglers of the Ausable,
Inc v .......................................................................................... 1078
Environmental Quality (Dep’t of) v Rexair, Inc ................. 1009
Environmental Quality (Dep’t of), Vemulapalli v ............... 974
Ervin Testamentary Trust, In re (Evans v Bank One
Trust Co) ........................................................................... 989
Esfahani, Fuller v .................................................................. 984
Estate of Green, Jackson v ................................................... 981
Etchison, People v ................................................................. 891
Ettema Bros, Okrie v ............................................................ 1186
Evans v Bank One Trust Co (In re Ervin Testamentary
Trust) ....................................................................................... 989
Executive Message of Governor Requesting the Auth of a
Certified Question, In re .................................................. 1201

F
Fagerman v Fagerman .......................................................... 1187
Fahrner, People v ................................................................... 978
Fairlane Car Wash, Inc, Knight Enterprises, Inc v ............ 1006
Falcone, People v ................................................................... 1071
Falk, People v ......................................................................... 987
Farm Bureau Gen Ins Co of Michigan v D & H Market,
Inc ............................................................................................. 984
Farm Bureau Gen Ins Co of Michigan, West v ........... 880, 1037
Farm Bureau Ins Co, Ellis v ............................. 889, 1018, 1119
Farm Bureau Mut Ins Co of Michigan, Shankster v .. 898, 1044
Farrar, People v ...................................................................... 976
Farrell, People v ..................................................................... 984
Fed Ins Co v Conbraco Industries, Inc & Citizens Ins Co
v Northern Industrial Refrigeration, Inc ....................... 1033
 TABLE OF CASES REPORTED xxxv

PAGE

Fedewa v Robert Clancy Contracting, Inc ........................... 948

Fella, People v ........................................................................ 1187
Fenstermaker, People v ......................................................... 897
Ferguson, People v ................................................................. 894
Ferguson Enterprises, Inc, Thomas v .................................. 1070
Ferndale (City of), Safiedine v .............................................. 995
Ferqueron, People v ............................................................... 977
Fields, People v ...................................................................... 988
Filip, People v ........................................................................ 1118
Fink, In re Estate of (Post v Schultz) .................................. 1070
Finley, People v ...................................................................... 1032
Fisher, People v (Jeremy) ...................................................... 1007
Fisher, People v (Robert) ...................................................... 897
Fisher v Zebrowski ................................................................ 991
Fisher Hotel, People v ........................................................... 979
Flanory, People v ................................................................... 1118
Focus Hope, Inc, Brackett v ................................ 269
Focus Hope, Inc, Brackett v ................................................. 1001
Ford, People v ........................................................................ 893
Ford v Securecare, Inc .......................................................... 1073
Ford Health Sys (Henry), Vance v ....................................... 1019
Ford Motor Co, Carr v .......................................................... 1186
Ford Motor Co v State Tax Comm ..................... 220
Ford Motor Co v State Tax Comm ....................................... 1004
Forest River, Inc, Davis v ...................................................... 1123
Forrest, People v .................................................................... 975
Forro v Michigan State Univ ................................................ 1036
Fox, People v (Jerrell) ........................................................... 1011
Fox, People v (Robert, Jr) ..................................................... 1036
Frankenmuth Mut Ins, Romain v ........................................ 992
Franklin, People v (Chantanus) ........................................... 1033
Franklin, People v (Jason) .................................................... 976
Franklin, People v (Keith) .................................................... 1118
Frazier, People v .................................................................... 1031
Freeman, People v (Joseph) .................................................. 1064
Freeman, People v (Michael) ................................................ 976
Frenzel v Mich-Can, Inc ....................................................... 1065
Frisbee, Bob Turner, Inc v .................................................... 992
Fuller v Esfahani ................................................................... 984
Fuller, People v ...................................................................... 1119
Fulton Pines Dev Co, Wixom Meadows Investments
Ltd Partnership v ............................................................. 1068
xxxvi 482 MICH REPORTS

PAGE

Funk, Village of Northport v ................................................ 1004

G
Gaggo v Kennedy ................................................................... 1187
Gaither, People v ................................................................... 1062
Gallant v Gallant ................................................................... 977
Gammage, People v ............................................................... 1035
Garcia, In re (Garcia v Michigan Children’s Institute) ...... 1062
Garcia v Michigan Children’s Institute (In re Garcia) ....... 1062
Garcia-Medina, People v ....................................................... 1062
Gardner, People v (Alejandro) .............................................. 1030
Gardner, People v (Caprese) ............................... 41
Garland, People v (Edward) ................................................. 990
Garland, People v (Eric) ....................................................... 897
Garner v Android Industries, LLC ...................................... 1035
Garner, People v .................................................................... 896
Garner, Shorter v .................................................................. 1068
Garrett, People v ................................................................... 987
Garth, People v ...................................................................... 980
Gaskins, People v ................................................................... 1064
Gates v USA Jet Airlines, Inc .............................................. 1005
Gauthier v D & T Emerald Creek, Inc ................................ 899
Gee, People v .......................................................................... 1035
Gehrke, Grievance Administrator v ..................................... 991
Gen Motors Corp v Alumi-Bunk, Inc ................................... 1080
Gen Motors Corp, Bleau v .................................................... 975
Gen Motors Corp, Harvey v ................................................. 1044
Gen Motors Corp, Holmes v ................................................. 977
Gen Motors Corp v Royal & Sun Alliance USA, Inc .......... 948
Gen Motors Corp, Stough v .................................................. 984
George, People v .................................................................... 1065
George W Smith & Co, PC, Ruby & Assoc, PC v ............... 896
Gerow v Saginaw ................................................................... 881
Gibisas, People v .................................................................... 977
Gidron, People v .................................................................... 1069
Gifford, Krass, Groh, Sprinkle, Anderson & Citkowski,
PC, Adamasu v .................................................................. 1074
Gilbert, People v .................................................................... 989
Gitler v Clawson .................................................................... 1038
Givens, People v .................................................................... 1072
Gjeldum, People v .................................................................. 898
Gleason, People v ................................................................... 1071
 TABLE OF CASES REPORTED xxxvii

PAGE

Glenn, People v ...................................................................... 973

Glisson, People v .................................................................... 1035
Glosson, People v ................................................................... 1036
Glover, People v (Dennis) ...................................................... 1065
Glover, People v (Leo) ........................................................... 971
Goldman, People v ................................................................. 992
Gonzalez, People v ................................................................. 1030
Goodger, People v .................................................................. 1187
Goodin, People v .................................................................... 1187
Goodman v Dahringer ........................................................... 899
Goodson, People v .................................................................. 972
Goodwill, People v ................................................................. 974
Gorman’s Lakeside, LLC, Shelby Town Ctr I, LLC v ........ 989
Goss, People v ........................................................................ 1186
Goulais, People v ................................................................... 988
Goulet v Ann Arbor Pub Schools ......................................... 898
Governor, Mayor of Detroit v ............................................... 960
Grace Community Church, Krause v .................................. 1070
Grand Rapids v Bright .......................................................... 1186
Grand Rapids Housing Comm v Ohio Farmers Ins Co ...... 974
Grand Trunk W R, Inc, Morefield v .................................... 1155
Gratton, People v ................................................................... 1029
Gray v Detroit Muni Parking Dep’t ..................................... 897
Gray, People v (Deandre) ...................................................... 1036
Gray, People v (Randy) .......................................................... 892
Gray, People v (Raymond) ........................................... 971, 1072
Grays, People v ...................................................................... 991
Greektown Casino, LLC, Ciaramitaro v ...................... 977, 1037
Green, People v (Craig) ......................................................... 1154
Green, People v (Robert) ...................................................... 991
Greene, Hall v ........................................................................ 1066
Greer, People v ....................................................................... 973
Grievance Administrator v Cooper ............................. 883, 1079
Grievance Administrator v Gehrke ...................................... 991
Grievance Administrator v Hamood .................................... 949
Grievance Administrator v Swanson ................................... 895
Griffith, People v ................................................................... 977
Griwatsch v Niedzwiecki ...................................................... 1066
Gross v Landin ...................................................................... 899
Gross, People v ...................................................................... 990
Grosse Pointe War Mem Ass’n, Smiley v ............................ 1156
Grubbs, People v .................................................................... 1018
xxxviii 482 MICH REPORTS

PAGE

Grubka v Van Deusen ........................................................... 1187

Guardian Environmental Services, Inc v Bureau of
Constr Codes & Fire Safety ............................................. 1033
Gulley, People v ...................................................................... 983
Gurda, People v ..................................................................... 986
Guzman, People v .................................................................. 892

H
Hadrian, People v .................................................................. 1018
Hall v Greene ......................................................................... 1066
Hall, People v (Carl) .............................................................. 892
Hall, People v (Dwayne) ........................................................ 1031
Hall, People v (Garland) ....................................................... 990
Hall, People v (Raymond) ..................................................... 1186
Halliburton, People v ............................................................ 1068
Hamblin, People v ................................................................. 1034
Hamood, Grievance Administrator v ................................... 949
Hansen v Dep’t of Community Health ................................ 1009
Harbor Bldg Co, Korn Family Ltd Partnership v ............... 895
Hardrick, People v (Demetrius) ........................................... 892
Hardrick, People v (Freddy) ................................................. 892
Harrington, Kwasniewski v .................................................. 1006
Harrington, People v ............................................................. 898
Harris v Davis ........................................................................ 897
Harris, People v (Dexter) ...................................................... 897
Harris, People v (Erwin) ....................................................... 880
Harris, People v (Rhashi) ...................................................... 1187
Harris, People v (Ronald Vernon) ........................................ 1068
Harris, People v (Ronald Wayne) ......................................... 1035
Harris, People v (Steven) ...................................................... 986
Harrison, People v ................................................................. 1065
Hart v Anderson .................................................................... 1069
Hart, People v ........................................................................ 989
Hart & Cooley Mfg, Inc, Mosby v ........................................ 1008
Hartford Ins Co of the Midwest v Michigan
Catastrophic Claims Ass’n .............................. 414
Hartford Ins Co of the Midwest, Seger v ............................ 880
Harvey v Curtis ..................................................................... 897
Harvey v Gen Motors Corp .................................................. 1044
Harvey-Bey, People v ............................................................. 1062
Hasberry, People v ................................................................. 897
Haseley Constr Co, Inc, Krastes v ....................................... 996
 TABLE OF CASES REPORTED xxxix

PAGE

Havens, People v ................................................................... 1029

Hawkins, People v ................................................................. 897
Hawkins, Thomas v ............................................................... 884
Haycock v Boomer ................................................................. 1187
Hayden, State Treasurer v ................................................... 991
Haynes, People v (Nathaniel) ............................................... 1036
Haynes, People v (Toni) ........................................................ 894
Healing Place at North Oakland Med Ctr v Allstate Ins
Co ....................................................................................... 880
Heard, People v ...................................................................... 990
Heather Downs Mgt Ltd, Kimmelman v ............................. 989
Heeringa v Petroelje .............................................................. 1186
Hellstrom, People v ............................................................... 1078
Henderson, People v (Jobey) ................................................ 898
Henderson, People v (Willie, Jr) .......................................... 1068
Henry v Dow Chem Co ......................................................... 1043
Henry Ford Health Sys, Vance v .......................................... 1019
Hernandez, People v .............................................................. 1071
Hernandez-Orta, People v .................................................... 899
Herndon, People v ................................................................. 988
Heximer, People v .................................................................. 1034
Hicks, People v (James, Jr) .................................................. 894
Hicks, People v (Renodda) .................................................... 893
Higgins, People v ................................................................... 1030
Highland, People v ................................................................ 881
Hill, People v .......................................................................... 974
Hinds, People v ...................................................................... 899
Hine, People v ........................................................................ 973
Histed, People v ..................................................................... 1067
Hittle, People v ...................................................................... 1036
Hodges, People v .................................................................... 1017
Hoffman, People v ................................................................. 1029
Hogg, People v ....................................................................... 974
Hogue, People v ..................................................................... 1065
Holden, People v .................................................................... 1034
Holland, People v (Lisa) ........................................................ 1068
Holland, People v (Timothy) ................................................ 1006
Holland, People v (Zebadiah) ................................................ 1065
Hollingsworth, People v ........................................................ 971
Hollins, People v .................................................................... 991
Holm, People v ....................................................................... 1007
Holmes v Gen Motors Corp .................................................. 977
xl 482 MICH REPORTS

PAGE

Holmes, People v ................................................................... 1105

Holtz, People v ....................................................................... 975
Hon Catherine Bove Steenland, In re .................................. 1231
Hopkins, People v .................................................................. 895
Horn, People v ....................................................................... 1033
Horton, People v .................................................................... 1078
Hosfelt, People v .................................................................... 1034
Hoskins, People v .................................................................. 975
Houck, People v ..................................................................... 1028
Howard, People v (Devon) .................................................... 1073
Howard, People v (Justin) .................................................... 1125
Hoy, Mentor Twp v ................................................................ 992
Hudson, In re (Dep’t of Human Services v Morgan) ......... 1038
Hudson, People v ................................................................... 1186
Hughes, People v ................................................................... 991
Hultgren, In re ..................................................... 358
Human Services (Dep’t of) v Barnes (In re Barnes) .......... 1105
Human Services (Dep’t of) v Cobb (In re Cobb) ................. 1028
Human Services (Dep’t of) v Lee (In re Lee) ...................... 1116
Human Services (Dep’t of) v McBride (In re McBride) ..... 949
Human Services (Dep’t of) v McCarthy (In reBersamina) .... 889
Human Services (Dep’t of) v Morgan (In re Hudson) ........ 1038
Human Services (Dep’t of) v Rood (In re Rood) ................. 900
Human Services (Dep’t of) v Ross (In re Ross) .................. 983
Human Services (Dep’t of) v Sanders (In re Robbins) ....... 1013
Human Services (Dep’t of) v Schultz (In re Momany) ....... 949
Human Services (Dep’t of) v Segar (In re Segar) ............... 1077
Human Services (Dep’t of) v Smith (In re Smith) ............. 1001
Human Services (Dep’t of) v Southard (In re Southard) ... 1077
Human Services (Dep’t of) v Valdez (In re Valdez) ............ 1043
Human Services (Dep’t of) v Wade (In re Wade) ................ 1001
Humphreys, People v ............................................................ 895
Hunter v Hunter ................................................................... 981
Hunter, People v .................................................................... 894
Hunters Creek Estates, Ressler v ........................................ 1037
Hurd, People v ....................................................................... 1071

I
Ichesco v Kircher ................................................................... 977
In re Barnes (Dep’t of Human Services v Barnes) ............. 1105
In re Bersamina (Dep’t of Human Services v McCarthy) .. 889
 TABLE OF CASES REPORTED xli

PAGE

In re Cobb (Dep’t of Human Services v Cobb) ................... 1028

In re Detroit Edison Co Application .................................... 985
In re Ervin Testamentary Trust (Evans v Bank One
Trust Co) ........................................................................... 989
In re Estate of Fink (Post v Schultz) ................................... 1070
In re Estate of Kostin (Williams v Kent) ............................. 894
In re Estate of Kostin (Williams v Kostin Trust) ............... 894
In re Estate of Stanowski (Stanowski v Stanowski) .......... 1154
In re Executive Message of Governor Requesting the
Auth of a Certified Question ........................................... 1201
In re Garcia (Garcia v Michigan Children’s Institute) ....... 1062
In re Hon Catherine Bove Steenland ................................... 1231
In re Hudson (Dep’t of Human Services v Morgan) .......... 1038
In re Hultgren ...................................................... 358
In re Lee (Dep’t of Human Services v Lee) ........................ 1116
In re Leslie E Tassell Trusts (Cotter v Tassell Estate) ...... 895
In re McBride (Dep’t of Human Services v McBride) ........ 949
In re McClain (Catholic Social Services of Oakland Co v
McClain-Allen) .................................................................. 1012
In re Miles (Miles v Soleus Healthcare Services of
Michigan, Inc) ........................................................... 891, 1037
In re Miltenberger (Eifler v Swartz) .................................... 901
In re Momany (Dep’t of Human Services v Schultz) ......... 949
In re Peterson (Peterson v Wayne Circuit Judge) .............. 1035
In re Robbins (Dep’t of Human Services v Sanders) .......... 1013
In re Rood (Dep’t of Human Services v Rood) ................... 900
In re Ross (Dep’t of Human Services v Ross) ..................... 983
In re Rovas Complaint ........................................ 90
In re Segar (Dep’t of Human Services v Segar) .................. 1077
In re Smith (Dep’t of Human Services v Smith) ................ 1001
In re Southard (Dep’t of Human Services v Southard) ..... 1077
In re Troy (Reed v Leary) ..................................................... 880
In re Valdez (Dep’t of Human Services v Valdez) ............... 1043
In re Wade (Dep’t of Human Services v Wade) .................. 1001
Innes v Allied Automotive Group, Inc ................................. 970
Insco, People v ....................................................................... 1071
Int’l Transmission Co v Pine View Estates Subdivision
Ass’n .................................................................................. 1065

J
J T Crawford, Inc, SBC v ..................................................... 1046
xlii 482 MICH REPORTS

PAGE

JGR, Inc, Braddock v ............................................................ 982

JJMT, Inc, Selflube, Inc v ..................................................... 993
JP King Auction Co, Inc, Churchill v .................................. 1044
JTRB, Inc II, LLC, Zavradinos v .......................................... 858
Jackson v Estate of Green .................................................... 981
Jackson, People v (Andre) ..................................................... 892
Jackson, People v (Benson) ............................................ 897, 992
Jackson, People v (Lynn) ...................................................... 990
Jackson-Ruffin v Metro Cars, Inc ........................................ 1017
Jacobson v Norfolk Dev Corp ........................... 976, 1037, 1156
James, People v (Anthony) ................................................... 900
James, People v (Michael) ..................................................... 1118
Jaworski, People v ................................................................. 1035
Jedlicki, People v ................................................................... 975
Jedynak, People v .................................................................. 1065
Jendrzejewski, People v ........................................................ 1032
Jenkins, People v (Robert) .................................................... 975
Jenkins, People v (Taurean) ................................................. 975
Jennings Gen Maintenance, Inc, Bristol Mfg, Inc v ........... 1034
Jerkins, Chalfin v .................................................................. 990
Jett Sett Mgt Services, LLC, Stough v ............................... 984
Jewell, People v ..................................................................... 894
Johnson, People v (Claxton, Jr) ........................................... 1070
Johnson, People v (Derrick) ................................................. 1032
Johnson, People v (William) ................................................. 988
Johnson-Peel, People v .......................................................... 1034
Jones v Comerica, Inc ........................................................... 890
Jones v Dep’t of Corrections ................................................ 973
Jones, People v (Cordero) ..................................................... 881
Jones, People v (Damarr) ...................................................... 1036
Jones, People v (David) ......................................................... 984
Jones, People v (Freezel, Jr) ................................................. 974
Jones, People v (Jesse) .......................................................... 973
Jones, People v (Larhon) ...................................................... 893
Jones, People v (Randall) ...................................................... 991
Jones, People v (Terrance) .................................................... 989
Jones, People v (Thomas) ..................................................... 1033
Jones, People v (Titus) .......................................................... 1068
Jones, People v (Vincent) ...................................................... 894
Jones, People v (Walter) ........................................................ 1030
Jones v Winkler ..................................................................... 1156
Joseph, People v (Desmond) ................................................. 988
 TABLE OF CASES REPORTED xliii

PAGE

Joseph, People v (Jeremy) .................................................... 975

Joy v Joy ................................................................................ 977
Joyce v Joyce .......................................................................... 1012

K
Kaddis, People v .................................................................... 995
Kade, People v .......................................................... 1069, 1071
Kalasho, People v ................................................................... 1063
Karam, Olsen v ...................................................................... 1066
Keebler, Downs v ................................................................... 898
Keith, People v ....................................................................... 1071
Keller Constr, Inc v U P Engineers & Architects, Inc ....... 1068
Keller Williams Realty Northville Market Ctr,
Vodopyanov v .................................................................... 1186
Kelley, People v (Gene) .......................................................... 990
Kelley, People v (Timothy) .................................................... 1071
Kelly, People v ............................................................... 893, 1037
Kelly Automotive Group, Inc, Beach v ................................ 1101
Kemmer, People v .................................................................. 976
Kendall v State Bar of Michigan ......................................... 1072
Kennedy, Gaggo v .................................................................. 1187
Kenney v Alticor, Inc ............................................................. 1008
Kent v Williams (In re Estate of Kostin) ........................... 894
Kersen, People v .................................................................... 991
Keyes, People v ...................................................................... 1117
Kilpatrick, People v ............................................................... 946
Kim v Wernette ...................................................................... 1033
Kimble, People v .................................................................... 984
Kimmelman v Heather Downs Mgt Ltd .............................. 989
King v McPherson Hosp .............................................. 1154, 1156
King, People v ...................................................... 368
King, People v ................................................................ 898, 1034
Kingsbury, People v ............................................................... 1118
Kircher, Ichesco v .................................................................. 977
Kircher, People v ....................................................... 1044, 1156
Kirkland, People v ................................................................. 975
Kirkwood, People v ................................................................ 1069
Kirschke, People v ................................................................. 1068
Kitchens, People v ................................................................. 991
Klaassen, People v ................................................................. 1071
Knight, People v (Deandre) .................................................. 1033
Knight, People v (Eugene) .................................................... 880
xliv 482 MICH REPORTS

PAGE

Knight Enterprises, Inc v Fairlane Car Wash, Inc ............. 1006

Kohler v Mercy Mem Hosp Corp ......................................... 999
Koras, People v ......................................................... 972, 1156
Korn Family Ltd Partnership v Harbor Bldg Co ................ 895
Koroi v United Services Automobile Ass’n ......................... 897
Korpal v Shaheen .................................................................. 898
Kostin, In re (Williams v Kent) ........................................... 894
Kramp, People v .................................................................... 1154
Krastes v Haseley Constr Co, Inc ........................................ 996
Krause v Grace Community Church ................................... 1070
Kroger Co of Michigan, Zahn v ............................................ 993
Kruse v Cort Furniture Rental ............................................ 1009
Kuch, People v ....................................................................... 1068
Kurtz, Bronson Methodist Hosp v ....................................... 1034
Kurtz, People v ...................................................................... 1131
Kwasniewski v Harrington ................................................... 1006
Kyle, People v ........................................................................ 971

L
LaBarge v Walgreen Co ......................................................... 976
Labor & Economic Growth (Dep’t of), Schils v .................. 1156
Lackey, People v ..................................................................... 991
Lambrix, People v .................................................................. 1066
Lampman, People v ............................................................... 1071
Landers, People v .................................................................. 1031
Landin, Gross v ..................................................................... 899
Lane v Magnum Corp ........................................................... 1069
Lane, People v ........................................................................ 1067
Larson, People v .................................................................... 896
Larson, Roberson Builders, Inc v ......................................... 1138
Last, People v ......................................................................... 1065
Lawton, People v ................................................................... 1186
Le, People v ............................................................................ 1064
Leary, Reed v (In re Troy) .................................................... 880
Leatherwood, People v .......................................................... 1035
Lee, Dep’t of Human Services v (In re Lee) ....................... 1116
Lee, In re (Dep’t of Human Services v Lee) ....................... 1116
Lee, People v .......................................................................... 1065
Leech, Walters v .................................................................... 1069
Lemons, People v ................................................................... 895
Lesage, People v ..................................................................... 1118
Leslie v Coca Cola Enterprises ............................................. 977
 TABLE OF CASES REPORTED xlv

PAGE

Lewis v Dayton Freight Lines .............................................. 990

Lewis, People v (James) ........................................................ 1036
Lewis, People v (Marvin) ...................................................... 1032
Lewis, People v (Ralph) ........................................................ 895
Liberty Mut Fire Ins Co, Blaszczyk v .................................. 1186
Ligons v Crittenton Hosp ..................................................... 1005
Lint, People v ......................................................................... 1031
Lion, People v ........................................................................ 1018
Lipsey, People v ...................................................................... 1028
Little, People v ....................................................................... 984
Liu v Shepard ........................................................................ 1035
Livingston Circuit Judge, Corrion v .................................... 978
Lockhart, People v ................................................................. 1064
Lockman, People v ................................................................. 1029
Lofton v Autozone, Inc ......................................................... 1005
Logan, People v ...................................................................... 1064
Long, People v (Lazzerick) .................................................... 897
Long, People v (Robert) ........................................................ 1118
Lor, People v .......................................................................... 894
Louis, People v ....................................................................... 1035
Love, People v (Freddy) ........................................................ 1066
Love, People v (Victoria) ....................................................... 895
Love, People v (Willie) ........................................................... 1032
Lowery, People v .................................................................... 881
Lowes, People v ..................................................................... 1187
Luckett, People v ................................................................... 990
Lustig, People v ..................................................................... 975
Lutzke, People v .................................................................... 891
Lynch, People v ...................................................................... 1006

M
Mac v Northwest Airlines, Inc ............................................. 1070
Mackey, People v .................................................................... 976
Mackin, People v .................................................................... 973
MacLean, People v ................................................................. 899
Macomb Twp v Michaels .............................................. 948, 1038
Macomb Twp, Walgreen Co v ............................................... 1187
Maddox, People v ................................................................... 970
Magna Corp, Petersen v ........................................................ 994
Magnum Corp, Lane v .......................................................... 1069
Mahon, People v .................................................................... 979
xlvi 482 MICH REPORTS

PAGE

Majewski, People v ................................................................ 897

Majic Funding, LLC, Mortgage Electronic Registration
Sys, Inc v ........................................................................... 1035
Malik, People v ...................................................................... 1034
Malloy v DSI Acoustical Co .................................................. 986
Malone, People v .................................................................... 1035
Manoku, People v .................................................................. 895
Mansfield, People v ................................................................ 975
Manuel, People v (Edward) .................................................. 1031
Manuel, People v (Lee) .......................................................... 896
Mariswamy, People v ............................................................. 893
Marker v Marker ................................................................... 948
Martin v Eaton Corp ............................................................. 1008
Martin, People v (Bobby) ...................................................... 851
Martin, People v (Scott) ........................................................ 1030
Martin v Secretary of State ........................................... 956, 969
Martinez, People v ................................................................. 1187
Martinez-Caballaro, People v ............................................... 1067
Matczak v Matczak ................................................................ 1022
Mathis, People v (Charles) .................................................... 1018
Mathis, People v (Terry) ....................................................... 1066
Matthews, Michigan Non-Profit Housing Corp v ............... 1071
Matthews, People v (Desmond) ............................................ 897
Matthews, People v (Kennedy) ............................................. 1028
Matthisen, People v ............................................................... 1070
Mauro, People v ..................................................................... 971
Maxitrol Co, VanVorst v ........................................................ 975
Maxson, People v ................................................. 385
Mayor of Detroit v Governor ................................................ 960
Mazurek, People v ................................................................. 1033
McBride, In re (Dep’t of Human Services v McBride) ....... 949
McCarthy, Dep’t of Human Services v (In re Bersamina) .... 889
McCarty, People v .................................................................. 975
McCauley, People v ................................................................ 991
McClain, In re (Catholic Social Services of Oakland Co v
McClain-Allen) .................................................................. 1012
McClain-Allen, Catholic Social Services of Oakland Co v
(In re McClain) ................................................................. 1012
McClellan, People v (Korcamoni) ......................................... 1030
McClellan, People v (Tony) ................................................... 1031
McClinton, People v .............................................................. 1063
McCormick v Carrier ............................................................ 1018
 TABLE OF CASES REPORTED xlvii

PAGE

McCowan, People v ................................................................ 1070

McCoy, People v (Leonard) ................................................... 1185
McCoy, People v (Rodney) ..................................................... 975
McCulloch, People v .............................................................. 987
McCurtis, People v ................................................................ 1068
McDonald, People v (Leselie) ................................................ 893
McDonald, People v (Ronnie) ............................................... 1068
McDow, People v .................................................................... 1069
McFadden v Delphi Corp ...................................................... 1036
Mc Fadden, People v .............................................................. 895
McGhee, People v .................................................................. 1073
McGowan, People v ............................................................... 1030
McIntosh, People v ................................................................ 890
McIntyre v Chavali ................................................................ 1185
McIntyre v Mohan ................................................................. 1185
McLeary, Potter v .................................................................. 1004
McLeod v Dep’t of Treasury ................................................. 977
McMillian v DTE Energy ...................................................... 1071
McNeil v Charlevoix Co ........................................................ 1014
McPherson Hosp, King v ............................................. 1154, 1156
Medley, People v .................................................................... 991
Medrano, People v ................................................................. 1035
Menefee, People v .................................................................. 1029
Mentor Twp v Hoy ................................................................ 992
Mercer, People v ........................................................ 884, 1185
Merchant, Rodriguez v ................................................. 896, 1038
Mercy Mem Hosp Corp, Kohler v ........................................ 999
Mericka v Dep’t of Community Health ............................... 996
Merko, People v ..................................................................... 897
Mesecar, People v ................................................................... 1033
Mesi, People v ........................................................................ 1067
Messenger, People v ............................................................... 1067
Metro Cars, Inc, Jackson-Ruffin v ....................................... 1017
Meyer, People v ...................................................................... 1035
Mich-Can, Inc, Frenzel v ...................................................... 1065
Michaels, Macomb Twp v ............................................. 948, 1038
Michigan, Richfield Landfill, Inc v ....................................... 1035
Michigan Bell Tel Co/SBC, Begin v ...................................... 976
Michigan Catastrophic Claims Ass’n, Hartford
Ins Co of the Midwest ..................................... 414
Michigan Catastrophic Claims Ass’n, United
States Fidelity Ins & Guaranty Co v ............. 414
xlviii 482 MICH REPORTS

PAGE
Michigan Children’s Institute, Garcia v (In re Garcia) ...... 1062
Michigan Constr Industry Mut Ins Co, Russell Plastering
Co v ........................................................................................... 898
Michigan Environmental Council v Pub Service Comm .... 986
Michigan Non-Profit Housing Corp v Matthews ................ 1071
Michigan State Univ, Abe v .................................................. 1078
Michigan State Univ, Forro v ............................................... 1036
Michigan Comm Action Agency Ass’n v Pub Service
Comm ....................................................................................... 895
Micro Electronics, Inc, Wright v .................................. 882, 1038
Miles v Soleus Healthcare Services of Michigan (In re
Miles Estate) ............................................................. 891, 1037
Miles, In re (Miles v Soleus Healthcare Services of
Michigan, Inc) ........................................................... 891, 1037
Miller, People v ..................................................... 539
Miller, People v (Joseph) ....................................................... 894
Miller, People v (Kelvin) ........................................................ 989
Miller, People v (Robert) ....................................................... 1029
Miller, People v (Ruddene) .................................................... 1035
Miller, People v (Stanley) ...................................................... 987
Miller, People v (William) ..................................................... 991
Mills, People v (Duane) ......................................................... 1032
Mills, People v (Morris) ......................................................... 1035
Miltenberger, In re (Eifler v Swartz) ................................... 901
Mingo v Detroit ..................................................................... 1066
Minton, People v .................................................................... 1036
Miresco Promotional Sales, Inc, Bautista v ........................ 896
Mitchell, People v .................................................................. 1036
Moening, People v ................................................................. 891
Moffat, People v (Clifton) ............................................ 989, 991
Mohan, McIntyre v ................................................................ 1185
Momany, In re (Dep’t of Human Services v Schultz) ......... 949
Moncrief, People v ................................................................. 990
Montes, People v .................................................................... 1070
Montgomery, People v ........................................................... 990
Moore v Dep’t of Corrections ............................................... 1034
Moore, People v (James) ....................................................... 893
Moore, People v (Rashad) ..................................................... 976
Moore, People v (Wayne) ....................................................... 972
Moore v Secura Ins ..................................... 507, 883
Moran-Dopico, People v ........................................................ 989
 TABLE OF CASES REPORTED xlix

PAGE

Morefield v Grand Trunk W R, Inc ..................................... 1155

Morehead, People v ............................................................... 1070
Morgan, Dep’t of Human Services v (In re Hudson) ......... 1038
Morgan, People v (George) ................................................... 1063
Morgan, People v (Michael) .................................................. 881
Morgan, People v (Richard) .................................................. 893
Morris, Westmoore Apartments v ........................................ 976
Mortgage Electronic Registration Sys, Inc v Majic
Funding, LLC .................................................................... 1035
Morton, People v .................................................................... 1033
Mosby v Hart & Cooley Mfg, Inc ......................................... 1008
Moses, People v ...................................................................... 1035
Moss, People v ....................................................................... 1069
Moten, People v ..................................................................... 1063
Moussaed, People v ................................................................ 974
Muhn, People v ...................................................................... 970
Munger, Wilcox v ................................................................... 1049
Munlin, People v .................................................................... 996
Munster v City of Battle Creek ............................................ 897
Murphy, People v (Jermaine) ................................................ 974
Murray v Comstock Pub Schools ......................................... 1070
Murray, People v .................................................................... 1186
Murriel, People v ................................................................... 1033
Muzurek, Sinicropi v ............................................................. 1012

N
NSK Corp v Dep’t of Treasury ............................................. 978
Nandi, Young v ...................................................................... 1007
Nationsrent, Inc, Burlingame v ........................................... 975
Naturalite, People v .............................................................. 1186
Neal v Dep’t of Corrections .......................................... 984, 1012
Neal, People v ........................................................................ 1067
Nero, People v ........................................................................ 893
Newberry v Scaddan ............................................................. 1066
Nguyen, People v ................................................................... 896
Nichols, People v (Adrian) .................................................... 976
Nickerson, People v ............................................................... 976
Niedzwiecki, Griwatsch v ..................................................... 1066
Norfolk Dev Corp, Jacobson v .......................... 976, 1037, 1156
Norman, People v .................................................................. 975
Northwest Airlines, Inc, Mac v ............................................ 1070
Novak, People v ..................................................................... 991
l 482 MICH REPORTS

PAGE

Nowak v Bay Co .................................................................... 1186

Null, People v ......................................................................... 1013
Nunn, People v ...................................................................... 1070

O
O’Dell, People v ..................................................................... 1069
Odom, People v ...................................................................... 1036
Odom v Wayne Co ............................................... 459
Oehler, People v ..................................................................... 972
Oetman, People v ................................................................... 1119
Ohio Farmers Ins Co, Grand Rapids Housing Comm v ..... 974
Okrie v Ettema Bros ............................................................. 1186
Oldeck, People v .................................................................... 896
Oliver, People v ...................................................................... 1071
Oliver/Hatcher Constr & Dev, Inc v Shain Park Assoc ...... 1155
Ollila, People v ....................................................................... 1034
Olsen v Karam ....................................................................... 1066
Olsen, People v ...................................................................... 881
Orion Charter Twp, Adams v ............................................... 992
Orr, People v .......................................................................... 987
Orvis, People v ....................................................................... 896
Ostrander, People v ............................................................... 1065
Our Lady of Good Counsel, Bessinger v .............................. 996
Outley, People v ..................................................................... 1069
Overbay v Botsford Gen Hosp .............................................. 1154
Owen, People v ...................................................................... 977
Owens, People v ..................................................................... 972
Owney, People v ..................................................................... 1066

P
Padgett, People v ................................................................... 989
Page, People v ........................................................................ 1030
Palmer, People v (Donald) ..................................................... 896
Palmer, People v (Taya) ........................................................ 991
Palmer, People v (Thomas) ................................................... 1032
Panther Crankshafts, Van Buren v ...................................... 976
Pappas v Bortz Health Care Facilities, Inc ......................... 948
Pardee, People v ..................................................................... 1067
Parker, People v (Frank) ....................................................... 972
Parker, People v (Stanley) ..................................................... 1187
Parkland Inn/Cas Reciprocal Exch, Smith v ....................... 1186
Parris, People v ...................................................................... 990
 TABLE OF CASES REPORTED li

PAGE

Pass, Compton v .................................................................... 1038

Patterson, People v (Corey) .................................................. 895
Patterson, People v (Randy) ................................................. 1065
Patton, People v ..................................................................... 990
Pavlovskis v City of East Lansing ........................................ 992
Payne, People v ...................................................................... 1070
Pearson, People v ................................................................... 988
Pegenau, People v .................................................................. 1070
Pena, People v (Clemente) .................................................... 1070
Pena, People v (Jacinto) ........................................................ 895
Pendelton, People v ............................................................... 1069
People v Abram ...................................................................... 1033
People v Adams ...................................................................... 988
People v Adkins ..................................................................... 1030
People v Albert ...................................................................... 1063
People v Ali ............................................................................ 1066
People v Alif ........................................................................... 976
People v Altman .................................................................... 974
People v Alton ........................................................................ 880
People v Ambers .................................................................... 1067
People v Anderson (Darnell) ................................................. 971
People v Anderson (Darron) ................................................. 976
People v Anderson (Eddie) .................................................... 980
People v Anderson (Kenneth) ............................................... 898
People v Annabel ................................................................... 972
People v Anton ....................................................................... 971
People v Armstrong (Jamahl) ............................................... 895
People v Armstrong (Richard) .............................................. 891
People v Ashworth ................................................................. 1186
People v Askew ...................................................................... 988
People v Atkins (Demon) ...................................................... 976
People v Atkins (Jamal) ........................................................ 1066
People v Atkinson .................................................................. 1067
People v Aussicker ................................................................. 893
People v Bachynski ................................................................ 1070
People v Bacon ....................................................................... 1066
People v Baez ......................................................................... 1032
People v Baisden .................................................................... 1000
People v Baldwin ................................................................... 892
People v Ballentine ................................................................ 990
People v Ballinger .................................................................. 975
People v Banks ....................................................................... 1051
lii 482 MICH REPORTS

PAGE

People v Bannasch ................................................................. 893

People v Barnes ..................................................................... 1067
People v Barnett .................................................................... 1066
People v Basat ........................................................................ 899
People v Baskin ..................................................................... 1067
People v Bates ........................................................................ 1118
People v Batey ....................................................................... 971
People v Bayer ....................................................................... 1000
People v Bean ........................................................................ 896
People v Beasley .................................................................... 1066
People v Bechtol .................................................................... 1030
People v Bedinger .................................................................. 896
People v Beeman ................................................................... 898
People v Belisle ...................................................................... 895
People v Bell (Andrew) .......................................................... 976
People v Bell (Osdemond) ..................................................... 894
People v Bemer ...................................................................... 1117
People v Benner ..................................................................... 977
People v Berger ...................................................................... 896
People v Bernaiche ................................................................ 1078
People v Bero ......................................................................... 1068
People v Binienda .................................................................. 984
People v Binschus .................................................................. 970
People v Bishop ...................................................................... 1119
People v Black ........................................................................ 1072
People v Blanks ..................................................................... 974
People v Blasengame ............................................................. 1064
People v Bliss ......................................................................... 1071
People v Bloomfield ............................................................... 1071
People v Blumenthal ............................................................. 1031
People v Boadway .................................................................. 1058
People v Bonior ...................................................................... 1037
People v Bonney .................................................................... 1073
People v Boston ..................................................................... 989
People v Bourgeois ................................................................ 991
People v Bowens-Frazier ....................................................... 1029
People v Bowers ..................................................................... 894
People v Boyd (Christopher) ................................................. 1070
People v Boyd (Derrick) ........................................................ 989
People v Boyd (James) .......................................................... 1067
People v Boyt ......................................................................... 977
 TABLE OF CASES REPORTED liii

PAGE

People v Bradbury ................................................................. 895

People v Bradley .................................................................... 1030
People v Braswell .................................................................. 1029
People v Brennan .................................................................. 1067
People v Brewer ..................................................................... 991
People v Brewster .................................................................. 1068
People v Bridges .................................................................... 1063
People v Briedenstein ............................................................ 1013
People v Briggs ...................................................................... 1036
People v Brisbane .................................................................. 1072
People v Brock ....................................................................... 1186
People v Brockman ................................................................ 1078
People v Broglin ..................................................................... 895
People v Brooks ..................................................................... 974
People v Brown (Craig) ......................................................... 1063
People v Brown (Devaughn) ................................................. 895
People v Brown (Jeffrey) ............................................. 988, 1072
People v Brown (Patrick) ...................................................... 1070
People v Brown (Rasheen) .................................................... 1035
People v Brown (Reginald) ................................................... 972
People v Brown (Stanley) ..................................................... 978
People v Brown (Steven) ....................................................... 896
People v Brown (Timothy) .................................................... 987
People v Brown (Torial) ........................................................ 1186
People v Bruley ...................................................................... 1071
People v Bryant (Bennie) ...................................................... 896
People v Bryant (Richard) .................................................... 981
People v Buchanan ................................................................ 1064
People v Buggs ....................................................................... 1070
People v Buley ....................................................................... 899
People v Bullitt ...................................................................... 881
People v Burbridge ................................................................ 881
People v Burgess .................................................................... 971
People v Burrows ................................................................... 1070
People v Burton ..................................................................... 1033
People v Bussler .................................................................... 897
People v Butler ...................................................................... 1031
People v Calhoun ................................................................... 1034
People v Campbell (Anthony) ............................................... 988
People v Campbell (Joseph) .................................................. 1062
People v Carey ....................................................................... 1035
liv 482 MICH REPORTS

PAGE

People v Carico ...................................................................... 992

People v Carless ..................................................................... 992
People v Carlson .................................................................... 1065
People v Carpenter ................................................................ 897
People v Carr ......................................................................... 895
People v Carrier ..................................................................... 987
People v Carswell ................................................................... 899
People v Carter (Deandre) .................................................... 891
People v Carter (Jeffrey) ....................................................... 894
People v Cass ......................................................................... 1064
People v Cato ......................................................................... 1154
People v Chadwick ................................................................. 982
People v Chambers ....................................................... 980, 1156
People v Chandler .................................................................. 1187
People v Charobee ................................................................. 1065
People v Chaudhry ................................................................ 990
People v Chavies .................................................................... 891
People v Chmielewski ............................................................ 1033
People v Christian-Bates ....................................................... 882
People v Clark (Curtis) ......................................................... 1070
People v Clark (Douglas) ...................................................... 989
People v Clarke (Lamar) ....................................................... 1032
People v Clarke (Tina) .......................................................... 1032
People v Clifton ..................................................................... 896
People v Coates (Keith) ......................................................... 1070
People v Coates (Vincent) ..................................................... 892
People v Coats ........................................................................ 974
People v Colbert ..................................................................... 996
People v Cole .......................................................................... 1029
People v Coleman (Jerry) ...................................................... 989
People v Coleman (Maurice) ................................................. 894
People v Collins ............................................................ 1006, 1156
People v Colwell ..................................................................... 1036
People v Comstock ................................................................. 1037
People v Conley ...................................................................... 1064
People v Cook (Brandon) ...................................................... 1119
People v Cook (Gregory) ....................................................... 1036
People v Cooley ...................................................................... 893
People v Cooper (Dexter) ...................................................... 900
People v Cooper (Montez) ............................................. 973, 1037
People v Corbiere ................................................................... 892
 TABLE OF CASES REPORTED lv

PAGE

People v Cottrell .................................................................... 1067

People v Courtney ................................................................. 1032
People v Cowans .................................................................... 989
People v Crater ...................................................................... 972
People v Crenshaw ................................................................ 1035
People v Cuellar ..................................................................... 1069
People v Curb ......................................................................... 1068
People v Curry (Jacqueline) ................................................. 1034
People v Curry (Michael) ...................................................... 1186
People v Custer ...................................................................... 972
People v Dalton ...................................................................... 991
People v Damron ................................................................... 1032
People v Daniels .................................................................... 990
People v Dates ....................................................................... 1064
People v Daugherty ............................................................... 1067
People v David ....................................................................... 973
People v Davis (James) ......................................................... 1063
People v Davis (Jerron) ......................................................... 896
People v Davis (Keith) ........................................................... 978
People v Davis (Randall) ....................................................... 1064
People v Davis (Scott) ........................................................... 972
People v Dawkins .................................................................. 1065
People v DeBerry ................................................................... 1069
People v Delazzer .................................................................. 1077
People v Denison ................................................................... 895
People v Dexter ...................................................................... 898
People v Diaz ......................................................................... 1064
People v Dixon (Deangelo) .................................................... 989
People v Dixon (Earl) ............................................................ 970
People v Dixon (James) ......................................................... 1033
People v Dixon (Terry) .......................................................... 1067
People v Donald ..................................................................... 1006
People v Doolittle .................................................................. 1031
People v Dortch ..................................................................... 972
People v Dozier ...................................................................... 1000
People v Draughn .................................................................. 983
People v Drummond .............................................................. 996
People v Dryer ....................................................................... 1031
People v Duckett .................................................................... 1030
People v Duncil ...................................................................... 974
People v Dunnuck .................................................................. 1036
lvi 482 MICH REPORTS

PAGE

People v Duran ...................................................................... 1186

People v Earl .......................................................................... 976
People v Eaton ....................................................................... 976
People v Eckmyre .................................................................. 1069
People v Edge ......................................................................... 1069
People v Edwards ............................................................ 893, 898
People v Elie .......................................................................... 1033
People v Elliott ...................................................................... 1065
People v Ellis ......................................................................... 891
People v Engdahl ................................................................... 1063
People v Etchison .................................................................. 891
People v Fahrner ................................................................... 978
People v Falcone .................................................................... 1071
People v Falk .......................................................................... 987
People v Farrar ...................................................................... 976
People v Farrell ...................................................................... 984
People v Fella ......................................................................... 1187
People v Fenstermaker .......................................................... 897
People v Ferguson .................................................................. 894
People v Ferqueron ................................................................ 977
People v Fields ....................................................................... 988
People v Filip ......................................................................... 1118
People v Finley ...................................................................... 1032
People v Fisher (Jeremy) ...................................................... 1007
People v Fisher (Robert) ....................................................... 897
People v Fisher Hotel ............................................................ 979
People v Flanory .................................................................... 1118
People v Ford ......................................................................... 893
People v Forrest ..................................................................... 975
People v Fox (Jerrell) ............................................................ 1011
People v Fox (Robert, Jr) ...................................................... 1036
People v Franklin (Chantanus) ............................................ 1033
People v Franklin (Jason) ..................................................... 976
People v Franklin (Keith) ..................................................... 1118
People v Frazier ..................................................................... 1031
People v Freeman (Joseph) ................................................... 1064
People v Freeman (Michael) ................................................. 976
People v Fuller ....................................................................... 1119
People v Gaither .................................................................... 1062
People v Gammage ................................................................ 1035
People v Garcia-Medina ........................................................ 1062
 TABLE OF CASES REPORTED lvii

PAGE

People v Gardner (Alejandro) ............................................... 1030

People v Gardner (Caprese) ................................ 41
People v Garland (Edward) .................................................. 990
People v Garland (Eric) ........................................................ 897
People v Garner ..................................................................... 896
People v Garrett .................................................................... 987
People v Garth ....................................................................... 980
People v Gaskins .................................................................... 1064
People v Gee ........................................................................... 1035
People v George ..................................................................... 1065
People v Gibisas ..................................................................... 977
People v Gidron ..................................................................... 1069
People v Gilbert ..................................................................... 989
People v Givens ..................................................................... 1072
People v Gjeldum ................................................................... 898
People v Gleason .................................................................... 1071
People v Glenn ....................................................................... 973
People v Glisson ..................................................................... 1035
People v Glosson .................................................................... 1036
People v Glover (Dennis) ...................................................... 1065
People v Glover (Leo) ............................................................ 971
People v Goldman .................................................................. 992
People v Gonzalez .................................................................. 1030
People v Goodger ................................................................... 1187
People v Goodin ..................................................................... 1187
People v Goodson ................................................................... 972
People v Goodwill .................................................................. 974
People v Goss ......................................................................... 1186
People v Goulais .................................................................... 988
People v Gratton .................................................................... 1029
People v Gray (Deandre) ....................................................... 1036
People v Gray (Randy) .......................................................... 892
People v Gray (Raymond) ............................................. 971, 1072
People v Grays ....................................................................... 991
People v Green (Craig) .......................................................... 1154
People v Green (Robert) ....................................................... 991
People v Greer ....................................................................... 973
People v Griffith .................................................................... 977
People v Gross ....................................................................... 990
People v Grubbs ..................................................................... 1018
People v Gulley ...................................................................... 983
lviii 482 MICH REPORTS

PAGE

People v Gurda ...................................................................... 986

People v Guzman ................................................................... 892
People v Hadrian ................................................................... 1018
People v Hall (Carl) ............................................................... 892
People v Hall (Dwayne) ......................................................... 1031
People v Hall (Garland) ........................................................ 990
People v Hall (Raymond) ...................................................... 1186
People v Halliburton ............................................................. 1068
People v Hamblin .................................................................. 1034
People v Hardrick (Demetrius) ............................................ 892
People v Hardrick (Freddy) .................................................. 892
People v Harrington .............................................................. 898
People v Harris (Dexter) ....................................................... 897
People v Harris (Erwin) ........................................................ 880
People v Harris (Rhashi) ....................................................... 1187
People v Harris (Ronald Vernon) ......................................... 1068
People v Harris (Ronald Wayne) .......................................... 1035
People v Harris (Steven) ....................................................... 986
People v Harrison .................................................................. 1065
People v Hart ......................................................................... 989
People v Harvey-Bey ............................................................. 1062
People v Hasberry ................................................................. 897
People v Havens .................................................................... 1029
People v Hawkins .................................................................. 897
People v Haynes (Nathaniel) ................................................ 1036
People v Haynes (Toni) ......................................................... 894
People v Heard ....................................................................... 990
People v Hellstrom ................................................................ 1078
People v Henderson (Jobey) ................................................. 898
People v Henderson (Willie, Jr) ........................................... 1068
People v Hernandez ............................................................... 1071
People v Hernandez-Orta ..................................................... 899
People v Herndon .................................................................. 988
People v Heximer .................................................................. 1034
People v Hicks (James, Jr) ................................................... 894
People v Hicks (Renodda) ..................................................... 893
People v Higgins .................................................................... 1030
People v Highland ................................................................. 881
People v Hill ........................................................................... 974
People v Hinds ....................................................................... 899
People v Hine ......................................................................... 973
 TABLE OF CASES REPORTED lix

PAGE

People v Histed ...................................................................... 1067

People v Hittle ....................................................................... 1036
People v Hodges ..................................................................... 1017
People v Hoffman .................................................................. 1029
People v Hogg ........................................................................ 974
People v Hogue ...................................................................... 1065
People v Holden ..................................................................... 1034
People v Holland (Lisa) ......................................................... 1068
People v Holland (Timothy) ................................................. 1006
People v Holland (Zebadiah) ................................................. 1065
People v Hollingsworth ......................................................... 971
People v Hollins ..................................................................... 991
People v Holm ........................................................................ 1007
People v Holmes .................................................................... 1105
People v Holtz ........................................................................ 975
People v Hopkins ................................................................... 895
People v Horn ........................................................................ 1033
People v Horton ..................................................................... 1078
People v Hosfelt ..................................................................... 1034
People v Hoskins ................................................................... 975
People v Houck ...................................................................... 1028
People v Howard (Devon) ..................................................... 1073
People v Howard (Justin) ..................................................... 1125
People v Hudson .................................................................... 1186
People v Hughes .................................................................... 991
People v Humphreys ............................................................. 895
People v Hunter ..................................................................... 894
People v Hurd ........................................................................ 1071
People v Insco ........................................................................ 1071
People v Jackson (Andre) ...................................................... 892
People v Jackson (Benson) ............................................. 897, 992
People v Jackson (Lynn) ....................................................... 990
People v James (Anthony) .................................................... 900
People v James (Michael) ...................................................... 1118
People v Jaworski .................................................................. 1035
People v Jedlicki .................................................................... 975
People v Jedynak ................................................................... 1065
People v Jendrzejewski ......................................................... 1032
People v Jenkins (Robert) ..................................................... 975
People v Jenkins (Taurean) .................................................. 975
People v Jewell ...................................................................... 894
lx 482 MICH REPORTS

PAGE

People v Johnson (Claxton, Jr) ............................................ 1070

People v Johnson (Derrick) .................................................. 1032
People v Johnson (William) .................................................. 988
People v Johnson-Peel ........................................................... 1034
People v Jones (Cordero) ...................................................... 881
People v Jones (Damarr) ....................................................... 1036
People v Jones (David) .......................................................... 984
People v Jones (Freezel, Jr) .................................................. 974
People v Jones (Jesse) ........................................................... 973
People v Jones (Larhon) ....................................................... 893
People v Jones (Randall) ....................................................... 991
People v Jones (Terrance) ..................................................... 989
People v Jones (Thomas) ...................................................... 1033
People v Jones (Titus) ........................................................... 1068
People v Jones (Vincent) ....................................................... 894
People v Jones (Walter) ......................................................... 1030
People v Joseph (Desmond) .................................................. 988
People v Joseph (Jeremy) ..................................................... 975
People v Kaddis ..................................................................... 995
People v Kade ........................................................... 1069, 1071
People v Kalasho .................................................................... 1063
People v Keith ........................................................................ 1071
People v Kelley (Gene) .......................................................... 990
People v Kelley (Timothy) .................................................... 1071
People v Kelly ................................................................ 893, 1037
People v Kemmer ................................................................... 976
People v Kersen ..................................................................... 991
People v Keyes ....................................................................... 1117
People v Kilpatrick ................................................................ 946
People v Kimble ..................................................................... 984
People v King ....................................................... 368
People v King ................................................................. 898, 1034
People v Kingsbury ................................................................ 1118
People v Kircher ....................................................... 1044, 1156
People v Kirkland .................................................................. 975
People v Kirkwood ................................................................. 1069
People v Kirschke .................................................................. 1068
People v Kitchens .................................................................. 991
People v Klaassen .................................................................. 1071
People v Knight (Deandre) ................................................... 1033
People v Knight (Eugene) ..................................................... 880
 TABLE OF CASES REPORTED lxi

PAGE

People v Koras .......................................................... 972, 1156

People v Kramp ..................................................................... 1154
People v Kuch ........................................................................ 1068
People v Kurtz ....................................................................... 1131
People v Kyle ......................................................................... 971
People v Lackey ..................................................................... 991
People v Lambrix ................................................................... 1066
People v Lampman ................................................................ 1071
People v Landers ................................................................... 1031
People v Lane ......................................................................... 1067
People v Larson ..................................................................... 896
People v Last .......................................................................... 1065
People v Lawton .................................................................... 1186
People v Le ............................................................................. 1064
People v Leatherwood ........................................................... 1035
People v Lee ........................................................................... 1065
People v Lemons .................................................................... 895
People v Lesage ...................................................................... 1118
People v Lewis (James) ......................................................... 1036
People v Lewis (Marvin) ....................................................... 1032
People v Lewis (Ralph) ......................................................... 895
People v Lint .......................................................................... 1031
People v Lion ......................................................................... 1018
People v Lipsey ...................................................................... 1028
People v Little ........................................................................ 984
People v Lockhart .................................................................. 1064
People v Lockman .................................................................. 1029
People v Logan ....................................................................... 1064
People v Long (Lazzerick) ..................................................... 897
People v Long (Robert) ......................................................... 1118
People v Lor ........................................................................... 894
People v Louis ........................................................................ 1035
People v Love (Freddy) ......................................................... 1066
People v Love (Victoria) ........................................................ 895
People v Love (Willie) ............................................................ 1032
People v Lowery ..................................................................... 881
People v Lowes ...................................................................... 1187
People v Luckett .................................................................... 990
People v Lustig ...................................................................... 975
People v Lutzke ..................................................................... 891
lxii 482 MICH REPORTS

PAGE

People v Lynch ....................................................................... 1006

People v Mackey .................................................................... 976
People v Mackin ..................................................................... 973
People v MacLean .................................................................. 899
People v Maddox .................................................................... 970
People v Mahon ..................................................................... 979
People v Majewski ................................................................. 897
People v Malik ....................................................................... 1034
People v Malone ..................................................................... 1035
People v Manoku ................................................................... 895
People v Mansfield ................................................................. 975
People v Manuel (Edward) ................................................... 1031
People v Manuel (Lee) ........................................................... 896
People v Mariswamy ............................................................. 893
People v Martin (Bobby) ....................................................... 851
People v Martin (Scott) ......................................................... 1030
People v Martinez .................................................................. 1187
People v Martinez-Caballaro ................................................ 1067
People v Mathis (Charles) ..................................................... 1018
People v Mathis (Terry) ........................................................ 1066
People v Matthews (Desmond) ............................................. 897
People v Matthews (Kennedy) .............................................. 1028
People v Matthisen ................................................................ 1070
People v Mauro ...................................................................... 971
People v Maxson .................................................. 385
People v Mazurek .................................................................. 1033
People v McCarty ................................................................... 975
People v McCauley ................................................................ 991
People v McClellan (Korcamoni) .......................................... 1030
People v McClellan (Tony) .................................................... 1031
People v McClinton ............................................................... 1063
People v McCowan ................................................................. 1070
People v McCoy (Leonard) .................................................... 1185
People v McCoy (Rodney) ..................................................... 975
People v McCulloch ............................................................... 987
People v McCurtis ................................................................. 1068
People v McDonald (Leselie) ................................................. 893
People v McDonald (Ronnie) ................................................ 1068
People v McDow .................................................................... 1069
People v Mc Fadden ............................................................... 895
 TABLE OF CASES REPORTED lxiii

PAGE

People v McGhee ................................................................... 1073

People v McGowan ................................................................ 1030
People v McIntosh ................................................................. 890
People v Medley ..................................................................... 991
People v Medrano .................................................................. 1035
People v Menefee ................................................................... 1029
People v Mercer ........................................................ 884, 1185
People v Merko ...................................................................... 897
People v Mesecar ................................................................... 1033
People v Mesi ......................................................................... 1067
People v Messenger ............................................................... 1067
People v Meyer ...................................................................... 1035
People v Miller ..................................................... 539
People v Miller (Joseph) ........................................................ 894
People v Miller (Kelvin) ........................................................ 989
People v Miller (Robert) ........................................................ 1029
People v Miller (Ruddene) .................................................... 1035
People v Miller (Stanley) ...................................................... 987
People v Miller (William) ...................................................... 991
People v Mills (Duane) .......................................................... 1032
People v Mills (Morris) .......................................................... 1035
People v Minton ..................................................................... 1036
People v Mitchell ................................................................... 1036
People v Moening .................................................................. 891
People v Moffat (Clifton) ............................................. 989, 991
People v Moncrief .................................................................. 990
People v Montes ..................................................................... 1070
People v Montgomery ............................................................ 990
People v Moore (James) ........................................................ 893
People v Moore (Rashad) ...................................................... 976
People v Moore (Wayne) ........................................................ 972
People v Moran-Dopico ......................................................... 989
People v Morehead ................................................................ 1070
People v Morgan (George) .................................................... 1063
People v Morgan (Michael) ................................................... 881
People v Morgan (Richard) ................................................... 893
People v Morton ..................................................................... 1033
People v Moses ....................................................................... 1035
People v Moss ........................................................................ 1069
People v Moten ...................................................................... 1063
lxiv 482 MICH REPORTS

PAGE

People v Moussaed ................................................................. 974

People v Muhn ....................................................................... 970
People v Munlin ..................................................................... 996
People v Murphy (Jermaine) ................................................ 974
People v Murray .................................................................... 1186
People v Murriel .................................................................... 1033
People v Naturalite ............................................................... 1186
People v Neal ......................................................................... 1067
People v Nero ......................................................................... 893
People v Nguyen .................................................................... 896
People v Nichols (Adrian) ..................................................... 976
People v Nickerson ................................................................ 976
People v Norman ................................................................... 975
People v Novak ...................................................................... 991
People v Null .......................................................................... 1013
People v Nunn ....................................................................... 1070
People v O’Dell ...................................................................... 1069
People v Odom ....................................................................... 1036
People v Oehler ...................................................................... 972
People v Oetman .................................................................... 1119
People v Oldeck ..................................................................... 896
People v Oliver ....................................................................... 1071
People v Ollila ........................................................................ 1034
People v Olsen ....................................................................... 881
People v Orr ........................................................................... 987
People v Orvis ........................................................................ 896
People v Ostrander ................................................................ 1065
People v Outley ...................................................................... 1069
People v Owen ....................................................................... 977
People v Owens ...................................................................... 972
People v Owney ..................................................................... 1066
People v Padgett .................................................................... 989
People v Page ......................................................................... 1030
People v Palmer (Donald) ..................................................... 896
People v Palmer (Taya) ......................................................... 991
People v Palmer (Thomas) .................................................... 1032
People v Pardee ...................................................................... 1067
People v Parker (Frank) ....................................................... 972
People v Parker (Stanley) ..................................................... 1187
People v Parris ....................................................................... 990
 TABLE OF CASES REPORTED lxv

PAGE

People v Patterson (Corey) ................................................... 895

People v Patterson (Randy) .................................................. 1065
People v Patton ...................................................................... 990
People v Payne ....................................................................... 1070
People v Pearson .................................................................... 988
People v Pegenau ................................................................... 1070
People v Pena (Clemente) ..................................................... 1070
People v Pena (Jacinto) ......................................................... 895
People v Pendelton ................................................................ 1069
People v Peoples .................................................................... 973
People v Perez ........................................................................ 894
People v Perez-Chica ............................................................. 978
People v Perkins (James) ...................................................... 1118
People v Perkins (Reynaurd) ................................................ 976
People v Person ...................................................................... 1064
People v Petersmarck ............................................................ 949
People v Peterson .................................................................. 1035
People v Petri ......................................................................... 1186
People v Pierce (Christopher) ............................................... 1063
People v Pierce (Tracey) ....................................................... 991
People v Pinson ..................................................................... 1119
People v Pittman ................................................................... 894
People v Plair ......................................................................... 1071
People v Platte ....................................................................... 1078
People v Pniewski .................................................................. 1064
People v Pollo ......................................................................... 1043
People v Poole ........................................................................ 1137
People v Porter ...................................................................... 1071
People v Pouncy ..................................................................... 895
People v Powell (Billy) ................................................. 973, 1072
People v Powell (Kelly) .......................................................... 974
People v Powell (Robert, III) ................................................ 990
People v Powers (Anthony) ................................................... 973
People v Pufall ....................................................................... 1070
People v Putrus ..................................................................... 978
People v Quatrine .................................................................. 975
People v Quinn ...................................................................... 1034
People v Quintanilla .............................................................. 977
People v Rademacher ............................................................ 894
lxvi 482 MICH REPORTS

PAGE

People v Radtke ..................................................................... 987

People v Ragland ................................................................... 989
People v Ramos ...................................................................... 1069
People v Rashad ..................................................................... 1029
People v Raymond (Ijoma) .................................................... 973
People v Raymond (Richard Larrian) .................................. 1064
People v Raymond (Richard Lee) ......................................... 1073
People v Reddell .............................................................. 892, 992
People v Reed (Bernard) ....................................................... 1069
People v Reed (Erick) ............................................................ 973
People v Reese ....................................................................... 1071
People v Rehkopf ................................................................... 991
People v Reitmeyer ................................................................ 990
People v Reuther ................................................................... 1069
People v Rhyndress ............................................................... 1037
People v Richmond ................................................................ 1041
People v Rigel ........................................................................ 899
People v Riley ........................................................................ 1187
People v Rincones .................................................................. 976
People v Rivas ........................................................................ 977
People v Roberts .................................................................... 975
People v Robertson (Antonio) ............................................... 1187
People v Robertson (Richard) ............................................... 988
People v Robinson (Dean) ..................................................... 988
People v Robinson (Ellis) ...................................................... 988
People v Robinson (Fredrick) ............................................... 975
People v Robinson (Matthew) ............................................... 1036
People v Robinson (Terence) ................................................ 896
People v Roden ...................................................................... 972
People v Rodgers (Arthur) .................................................... 894
People v Rodgers (John) ....................................................... 1034
People v Rodriguez (Jose) ..................................................... 988
People v Rodriguez (Reynaldo) ............................................. 1063
People v Roe ........................................................................... 992
People v Roebuck ................................................................... 990
People v Rogers (Cleveland) ................................................. 898
People v Rogers (Shawntae) ................................................. 897
People v Rowland .................................................................. 1118
People v Ruggles .................................................................... 1031
 TABLE OF CASES REPORTED lxvii

PAGE

People v Russell ..................................................................... 995

People v Sachs ....................................................................... 896
People v Saif ........................................................................... 994
People v Saillor ...................................................................... 897
People v Salem ....................................................................... 894
People v Sallee ....................................................................... 896
People v Sam .......................................................................... 1072
People v Sams ........................................................................ 974
People v Samuels ................................................................... 891
People v Sanders (Daniel) ..................................................... 1119
People v Sanders (Willie) ...................................................... 983
People v Sandifer ................................................................... 1071
People v Scarber .................................................. 368
People v Schaaf ...................................................................... 975
People v Schniers ................................................................... 1032
People v Schultz .................................................................... 1078
People v Schurtz .................................................................... 1078
People v Scott ............................................................. 989, 1156
People v Sealey ...................................................................... 1036
People v Searcy ...................................................................... 899
People v Searight ................................................................... 1037
People v Searle ....................................................................... 1067
People v Sessions ................................................................... 1118
People v Shahideh ................................................................. 1156
People v Shaw ........................................................................ 897
People v Shepherd ................................................................. 1035
People v Sherry ...................................................................... 897
People v Sian .......................................................................... 1036
People v Sieradzki ................................................................. 1069
People v Sierra (Christian) .......................................... 883, 1107
People v Sierra (Simon) ........................................................ 891
People v Simmons (James) ................................................... 976
People v Simmons (LeRoy) ................................................... 1031
People v Simmons (Niko) ...................................................... 1035
People v Simpson ................................................................... 1029
People v Sims (Domaco) ........................................................ 1036
People v Sims (Ervin) ............................................................ 989
People v Simson ..................................................................... 1067
People v Singleton ................................................................. 897
lxviii 482 MICH REPORTS

PAGE

People v Smith (Charles, III) ................................................ 1071

People v Smith (Gary) ......................................... 292
People v Smith (Gary) ........................................................... 892
People v Smith (Jerry) .......................................................... 892
People v Smith (Nathaniel) .................................................. 894
People v Smith (Timothy) ..................................................... 1034
People v Smith-Bey ............................................................... 1029
People v Snyder (Gregory) .................................................... 975
People v Snyder (John) ......................................................... 983
People v Soli ........................................................................... 1032
People v Sours ....................................................................... 897
People v Sparks (James) ....................................................... 1029
People v Sparks (Kenneth) ................................................... 1031
People v Spraggins (Anthony) .............................................. 975
People v Spraggins (Waukeen) ............................................. 1118
People v Sprague ................................................................... 1007
People v St John .................................................................... 892
People v Stapleton ................................................................. 1034
People v Starks ...................................................................... 1187
People v Stearns .................................................................... 1036
People v Stennis .................................................................... 896
People v Sterling (Hyland) ................................................... 976
People v Sterling (Jamal) ...................................................... 1063
People v Steward ................................................................... 991
People v Stewart .................................................................... 1029
People v Stiff .......................................................................... 1031
People v Stocks ...................................................................... 975
People v Stone ....................................................................... 1187
People v Strong ...................................................................... 1068
People v Stross ....................................................................... 979
People v Studer ...................................................................... 1068
People v Sumerlin ................................................................. 1063
People v Sutton ...................................................................... 1062
People v Swafford .................................................................. 1015
People v Swanigan ................................................................. 899
People v Sweet ....................................................................... 1065
People v Szpyrka ................................................................... 1018
People v Taylor .................................................... 368
People v Taylor ...................................................................... 971
 TABLE OF CASES REPORTED lxix

PAGE

People v Templeton ............................................................... 899

People v Thomas (Albert) ..................................................... 976
People v Thomas (Charles) ................................................... 1036
People v Thomas (Edward) ................................................... 900
People v Thomas (Yosheyah) ................................................ 898
People v Thomason ............................................................... 989
People v Thompkins ...................................................... 974, 1038
People v Thompson (Amy) .................................................... 1033
People v Thompson (Derrick) ............................................... 896
People v Tiggart ..................................................................... 1030
People v Times ....................................................................... 1033
People v Tincher .................................................................... 977
People v Tobias ...................................................................... 880
People v Tomasello ................................................................ 1071
People v Toris ........................................................................ 1067
People v Torres ...................................................................... 1066
People v Townsend ................................................................ 1030
People v Tran ......................................................................... 1031
People v Trapp ....................................................................... 1044
People v Trofatter ................................................................. 893
People v Troost ...................................................................... 895
People v Tucker ..................................................................... 1119
People v Tudor ....................................................................... 982
People v Turkette .................................................................. 1186
People v Turner (Leonard) ................................................... 1155
People v Turner (Torry) ........................................................ 1069
People v Tyner ....................................................................... 1066
People v Uncapher ................................................................. 892
People v Underwood .............................................................. 898
People v Unger ...................................................................... 1027
People v Upchurch ................................................................ 1119
People v Uphaus .................................................................... 990
People v Vance (Marquis) ..................................................... 989
People v Vance (Michael) ...................................................... 1185
People v Vandeberg ............................................................... 1068
People v Vandenberg ............................................................. 980
People v Vaughn .................................................................... 990
People v Vesey (Dameko) ...................................................... 896
People v Vesey (Dennis) ........................................................ 896
lxx 482 MICH REPORTS

PAGE

People v Vliet ......................................................................... 992

People v Wade ........................................................................ 1033
People v Wakefield ................................................................. 1187
People v Waldon ..................................................................... 977
People v Walker (Gregory) .................................................... 897
People v Walker (James) ....................................................... 896
People v Walls ........................................................................ 1034
People v Walton ..................................................................... 1067
People v Ward ........................................................................ 1037
People v Warren ..................................................................... 991
People v Washington ............................................................. 1029
People v Watkins (Keith) ...................................................... 990
People v Watkins (Lincoln) ................................................... 1114
People v Watkins (Sylvester) ................................................ 977
People v Watson ..................................................................... 1035
People v Watts ....................................................................... 980
People v Wellman .................................................................. 1013
People v Wengorovius ............................................................ 1187
People v White (Brian) .......................................................... 984
People v White (James, Jr) ................................................... 895
People v White (Mark) .......................................................... 1071
People v White (Peggy) ......................................................... 991
People v Whitsett ................................................................... 1118
People v Whyte ...................................................................... 1034
People v Wideman ................................................................. 1068
People v Wiggins .................................................................... 1033
People v Wilburn ................................................................... 996
People v Wiley ........................................................................ 1030
People v Wilkes ...................................................................... 990
People v Wilkinson ................................................................ 1063
People v Willavize .................................................................. 897
People v Willett ...................................................................... 1069
People v Williams (Anterio) .................................................. 1017
People v Williams (Anthony) ................................................ 1071
People v Williams (Artiss) ..................................................... 1187
People v Williams (Bobby) .................................................... 973
People v Williams (Brian) ..................................................... 1071
People v Williams (Cameron) ............................................... 1029
People v Williams (Dwayne) ................................................. 973
 TABLE OF CASES REPORTED lxxi

PAGE

People v Williams (Glenn) .................................................... 1035

People v Williams (James) .................................................... 1042
People v Williams (Joel) ........................................................ 891
People v Williams (John) ...................................................... 1031
People v Williams (Leeatrice) ............................................... 1068
People v Williams (Lester) .................................................... 1066
People v Williams (Maurice) ................................................. 972
People v Williams (Michael Allen) ....................................... 894
People v Williams (Michael Anthony) .................................. 1066
People v Williams (Reginald) ................................................ 980
People v Williams (Shawn) ................................................... 976
People v Williams (Shelton) .................................................. 1071
People v Williams (Tammy) .................................................. 1044
People v Williams (Tervares) ................................................ 971
People v Williams (Theodore) ............................................... 988
People v Willis (Ralph) .......................................................... 1066
People v Willis (Russell) ........................................................ 1010
People v Wilson (Deon) ......................................................... 1034
People v Wilson (Gaylord) .................................................... 1064
People v Wilson (Michael) ..................................................... 971
People v Wilson (Sean) .......................................................... 900
People v Wilson (Wesley) ...................................................... 1187
People v Winkler .................................................................... 1071
People v Witbrodt .................................................................. 971
People v Woodfork ................................................................. 1064
People v Wooten ............................................................ 973, 1037
People v Wozniak ................................................................... 973
People v Wrenfrow ................................................................ 974
People v Wright (Benjamin) ................................................. 991
People v Wright (Lamar) ...................................................... 991
People v Wright (Monica) ..................................................... 992
People v Wyatt ....................................................................... 1016
People v Wynn ....................................................................... 977
People v Yarbrough ................................................................ 897
People v Young (Cheryl) ........................................................ 1032
People v Young (Garry) ......................................................... 1071
People v Young (Kevin) ......................................................... 896
People v Young (Roger) ......................................................... 1030
People v Zaker ....................................................................... 1013
lxxii 482 MICH REPORTS

PAGE

People v Zentz ........................................................................ 1154

People v Zigler ....................................................................... 991
People v Zoica ........................................................................ 897
People v Zuniga ..................................................................... 991
Peoples, People v ................................................................... 973
Perez, People v ....................................................................... 894
Perez-Chica, People v ............................................................ 978
Perkins, People v (James) ..................................................... 1118
Perkins, People v (Reynaurd) ............................................... 976
Perry v Bon Secours Cottage Health Services .................... 898
Person, People v ..................................................................... 1064
Petersen v Magna Corp ......................................................... 994
Petersmarck, People v ........................................................... 949
Peterson, In re (Peterson v Wayne Circuit Judge) ............. 1035
Peterson, People v ................................................................. 1035
Peterson v Wayne Circuit Judge (In re Peterson) .............. 1035
Petri, People v ........................................................................ 1186
Petroelje, Heeringa v ............................................................. 1186
Pierce, Braverman v .............................................................. 1033
Pierce, People v (Christopher) .............................................. 1063
Pierce, People v (Tracey) ...................................................... 991
Pieser v Sara Lee Bakery ..................................................... 894
Pine View Estates Subdivision Ass’n, Int’l Transmission
Co v ........................................................................................... 1065
Pinson, People v .................................................................... 1119
Pitcher v Sealtex Co, Inc ...................................................... 1034
Pittman, People v .................................................................. 894
Plair, People v ........................................................................ 1071
Platte, People v ...................................................................... 1078
Pniewski, People v ................................................................. 1064
Pollo, People v ........................................................................ 1043
Pontiac, Pontiac Fire Fighters Union v ............. 1
Pontiac Fire Fighters Union v Pontiac .............. 1
Poole, People v ....................................................................... 1137
Porter, People v ...................................................................... 1071
Post v Schultz (In re Estate of Fink) ................................... 1070
Potter v McLeary ................................................................... 1004
Pouncy, People v .................................................................... 895
Powell, People v (Billy) ................................................ 973, 1072
 TABLE OF CASES REPORTED lxxiii

PAGE

Powell, People v (Kelly) ......................................................... 974

Powell, People v (Robert, III) ............................................... 990
Powers, People v (Anthony) .................................................. 973
Preferred Medicine, Inc v Allstate Ins Co ........................... 1029
Prime Financial Services, LLC v Vinton ............................. 1069
Pro-Tech Environmental & Constr Services, Inc, Stearns v . 1156
Pub Service Comm, Adrian Energy Ass’n, LLC v .............. 986
Pub Service Comm, Ass’n of Businesses Advocating
Tariff Equity v ................................................................. 985
Pub Service Comm, Attorney Gen v .................................... 984
Pub Service Comm, Michigan Comm Action Agency
Ass’n v ............................................................................... 895
Pub Service Comm, Michigan Environmental Council v ... 986
Pufall, People v ...................................................................... 1070
Pugh Co, Inc (Charles L), Vanerian v .................................. 1074
Putrus, People v .................................................................... 978

Q
Quatrine, People v ................................................................. 975
Quinn, People v ..................................................................... 1034
Quintanilla, People v ............................................................. 977

R
RW Lapin, Inc, Stone v ......................................................... 982
Rademacher, People v ............................................................ 894
Radtke, People v .................................................................... 987
Ragland, People v .................................................................. 989
Ramos, People v ..................................................................... 1069
Rashad, People v .................................................................... 1029
Raymond, People v (Ijoma) ................................................... 973
Raymond, People v (Richard Larrian) ................................. 1064
Raymond, People v (Richard Lee) ........................................ 1073
Reddell, People v ............................................................. 892, 992
Reed v Leary (In re Troy) ..................................................... 880
Reed, People v (Bernard) ...................................................... 1069
Reed, People v (Erick) ........................................................... 973
Reese, People v ...................................................................... 1071
Rehkopf, People v .................................................................. 991
Reitmeyer, People v ............................................................... 990
lxxiv 482 MICH REPORTS

PAGE

Ressler v Hunters Creek Estates ......................................... 1037

Resto, Borgess Med Ctr v ..................................................... 946
Reuther, People v ................................................................... 1069
Rexair, Inc, Dep’t of Environmental Quality v ................... 1009
Rhyndress, People v .............................................................. 1037
Richfield Landfill, Inc v Michigan ........................................ 1035
Richmond, People v ............................................................... 1041
Riebschleger v Riebschleger ................................................. 982
Rigel, People v ....................................................................... 899
Riley, People v ........................................................................ 1187
Rincones, People v ................................................................. 976
Rivas, People v ....................................................................... 977
Robbins, In re (Dep’t of Human Services v Sanders) ......... 1013
Robelin v Spectrum Health Hosps ....................................... 985
Roberson Builders, Inc v Larson .......................................... 1138
Robert Clancy Contracting, Inc, Fedewa v .......................... 948
Roberts, People v ................................................................... 975
Robertson v DaimlerChrysler Corp ..................................... 997
Robertson, People v (Antonio) .............................................. 1187
Robertson, People v (Richard) .............................................. 988
Robinson v Birds Eye Foods, Inc ......................................... 1036
Robinson, People v (Dean) .................................................... 988
Robinson, People v (Ellis) ..................................................... 988
Robinson, People v (Fredrick) .............................................. 975
Robinson, People v (Matthew) .............................................. 1036
Robinson, People v (Terence) ............................................... 896
Rockford v 63rd Dist Court .................................................. 1156
Roden, People v ..................................................................... 972
Rodgers, People v (Arthur) ................................................... 894
Rodgers, People v (John) ...................................................... 1034
Rodriguez v Merchant .................................................. 896, 1038
Rodriguez, People v (Jose) .................................................... 988
Rodriguez, People v (Reynaldo) ............................................ 1063
Roe, People v .......................................................................... 992
Roebuck, People v .................................................................. 990
Rogers, People v (Cleveland) ................................................ 898
Rogers, People v (Shawntae) ................................................ 897
Romain v Frankenmuth Mut Ins ......................................... 992
Rood, In re (Dep’t of Human Services v Rood) .................. 900
 TABLE OF CASES REPORTED lxxv

PAGE

Ross, Dep’t of Human Services v (In re Ross) .................... 983

Ross, In re (Dep’t of Human Services v Ross) .................... 983
Rovas Complaint, In re ....................................... 90
Rowland, People v ................................................................. 1118
Royal & Sun Alliance USA, Inc, Gen Motors Corp v ......... 948
Royce v Chatwell Club Apartments ..................................... 1045
Ruby & Assoc, PC v George W Smith & Co, PC ................ 896
Ruggles, People v ................................................................... 1031
Russell, People v .................................................................... 995
Russell Plastering Co v Michigan Constr Industry Mut
Ins Co ................................................................................ 898
Ryerson Tull Coil Processing, Acemco, Inc v ...................... 999

S
SBC v J T Crawford, Inc ...................................................... 1046
Sachs, People v ...................................................................... 896
Safiedine v City of Ferndale ................................................. 995
Saginaw, Gerow v .................................................................. 881
Saif, People v .......................................................................... 994
Saillor, People v ..................................................................... 897
Salem, People v ...................................................................... 894
Sallee, People v ...................................................................... 896
Sam, People v ......................................................................... 1072
Sams, People v ....................................................................... 974
Samuels, People v .................................................................. 891
Sanders, Dep’t of Human Services v (In re Robbins) ........ 1013
Sanders, People v (Daniel) .................................................... 1119
Sanders, People v (Willie) ..................................................... 983
Sandifer, People v .................................................................. 1071
Sara Lee Bakery, Pieser v ..................................................... 894
Sazima v Shepherd Bar & Restaurant ................... 1014, 1110
Scaddan, Newberry v ............................................................ 1066
Scarber, People v .................................................. 368
Schaaf, People v ..................................................................... 975
Schantz-Rontal, Drake v .............................................. 890, 1037
Schils v Dep’t of Labor & Economic Growth ...................... 1156
Schindler v Asplundh Tree Expert Co ................................. 882
Schniers, People v .................................................................. 1032
lxxvi 482 MICH REPORTS

PAGE

Schultz, Dep’t of Human Services v (In re Momany) ........ 949

Schultz, People v ................................................................... 1078
Schultz, Post v (In re Estate of Fink) .................................. 1070
Schupra v The Wayne Oakland Agency .............................. 1068
Schurtz, People v ................................................................... 1078
Sciotti v 36th Dist Court ...................................................... 1143
Scott, People v .............................................................. 989, 1156
Scott v State Farm Mut Automobile Ins Co ........................ 1074
Scott, Village of Northport v ................................................ 1004
Sealey, People v ...................................................................... 1036
Sealtex Co, Inc, Dewitt v ...................................................... 1034
Sealtex Co, Inc, Pitcher v ..................................................... 1034
Searcy, People v ..................................................................... 899
Searight, People v .................................................................. 1037
Searle, People v ...................................................................... 1067
Secretary of State, Citizens Protecting Michigan’s
Constitution v ............................................................. 949, 960
Secretary of State, Martin v .......................................... 956, 969
Secura Ins, Moore v ..................................... 507, 883
Securecare, Inc, Ford v ......................................................... 1073
Segar, Dep’t of Human Services v (In re Segar) ................. 1077
Segar, In re (Dep’t of Human Services v Segar) ................. 1077
Seger v Hartford Ins Co of the Midwest ............................. 880
Selflube, Inc v JJMT, Inc ...................................................... 993
Sessions, People v .................................................................. 1118
Seyburn, Kahn, Ginn, Bess, Deitch, & Serlin, PC
v Bakshi ............................................................................. 1077
Shabahang, Bush v ...................................................... 1041, 1105
Shaffer v St. Joseph’s Mercy Hosps of Macomb ................. 1040
Shaheen, Korpal v ................................................................. 898
Shahideh, People v ................................................................ 1156
Shain Park Assoc, Oliver/Hatcher Constr & Dev, Inc v ..... 1155
Shankster v Farm Bureau Mut Ins Co of Michigan ... 898, 1044
Shaw, People v ....................................................................... 897
Shelby Town Ctr I, LLC v Gorman’s Lakeside, LLC ......... 989
Shepard, Liu v ....................................................................... 1035
Shepherd, People v ................................................................ 1035
Shepherd Bar & Restaurant, Sazima v .................. 1014, 1110
Sherry, People v ..................................................................... 897
 TABLE OF CASES REPORTED lxxvii

PAGE

Shope v A D Transport Express, Inc ................................... 1070

Shorter v Garner ................................................................... 1068
Shubh Hotels Detroit, LLC v Wells Operating Parating
Partnership, LP ................................................................ 1186
Shulick v Dep’t of Corrections ............................................. 990
Sian, People v ......................................................................... 1036
Sieradzki, People v ................................................................ 1069
Sierra, People v (Christian) ......................................... 883, 1107
Silver Lake Prop Ass’n of Indian River, Terlecki v ............ 1057
Simmons, People v (James) .................................................. 976
Simmons, People v (LeRoy) .................................................. 1031
Simmons, People v (Niko) ..................................................... 1035
Simpson, People v .................................................................. 1029
Sims, People v (Domaco) ....................................................... 1036
Sims, People v (Ervin) ........................................................... 989
Simson, People v .................................................................... 1067
Singleton, People v ................................................................ 897
Sinicropi v Muzurek .............................................................. 1012
63rd Dist Court, Rockford v ................................................. 1156
Smiley v Grosse Pointe War Mem Ass’n ............................. 1156
Smith v Advance Temporary Services, Inc ......................... 984
Smith, Dep’t of Human Services v (In re Smith) ............... 1001
Smith, In re (Dep’t of Human Services v Smith) ............... 1001
Smith v Parkland Inn/Cas Reciprocal Exch ........................ 1186
Smith, People v (Charles, III) ............................................... 1071
Smith, People v (Gary) ........................................ 292
Smith, People v (Gary) .......................................................... 892
Smith, People v (Jerry) ......................................................... 892
Smith, People v (Nathaniel) ................................................. 894
Smith, People v (Timothy) .................................................... 1034
Smith v Smith ........................................................................ 1053
Smith & Co PC (George W), Ruby & Assoc, PC v .......896, 1029
Smith-Bey, People v ...............................................................
Snyder, People v (Gregory) ................................................... 975
Snyder, People v (John) ........................................................ 983
Soleus Healthcare Services of Michigan, Inc, Miles v (In
re Miles) .................................................................... 891, 1037
Soli, People v .......................................................................... 1032
Sours, People v ...................................................................... 897
lxxviii 482 MICH REPORTS

PAGE

Southard, Dep’t of Human Services v (In re Southard) .... 1077

Southard, In re (Dep’t of Human Services v Southard) .... 1077
Sparks, People v (James) ...................................................... 1029
Sparks, People v (Kenneth) .................................................. 1031
Spectrum Health v Titan Ins Co .......................................... 975
Spectrum Health Hosps, Robelin v ...................................... 985
Spencer v Dep’t of Corrections ............................................ 1068
Spraggins, People v (Anthony) ............................................. 975
Spraggins, People v (Waukeen) ............................................ 1118
Sprague, People v .................................................................. 1007
St Clair Circuit Court, Dell v ............................................... 899
St John, People v ................................................................... 892
St John Health Sys, Baker v ................................................ 1039
St Joseph’s Mercy Hosps of Macomb, Shaffer v ................. 1040
Stanke v Stanke ..................................................................... 1013
Stanowski v Stanowski (In re Estate of Stanowski) .......... 1154
Stapleton, People v ................................................................ 1034
Starks, People v ..................................................................... 1187
State Bar of Michigan, Kendall v ........................................ 1072
State Farm Mut Automobile Ins Co, Anderson v ............... 1038
State Farm Mut Automobile Ins Co, Scott v ....................... 1074
State of Michigan, Baumgart v ............................................ 987
State Tax Comm, DaimlerChrysler Corp v ....... 220
State Tax Comm, DaimlerChrysler Corp v ......................... 1004
State Tax Comm, Detroit Diesel Corp v ............ 220
State Tax Comm, Ford Motor Co v .................... 220
State Tax Comm, Ford Motor Co v ...................................... 1004
State Treasurer v Hayden .................................................... 991
Stearns, People v ................................................................... 1036
Stearns v Pro-Tech Environmental & Constr Services, Inc .. 1156
Stennis, People v ................................................................... 896
Sterling, People v (Hyland) .................................................. 976
Sterling, People v (Jamal) ..................................................... 1063
Steward, People v .................................................................. 991
Stewart, People v ................................................................... 1029
Stiff, People v ......................................................................... 1031
Stocks, People v ..................................................................... 975
Stone, People v ...................................................................... 1187
Stone v RW Lapin, Inc .......................................................... 982
 TABLE OF CASES REPORTED lxxix

PAGE

Stone v Williamson .............................................. 144

Stough v Gen Motors Corp ................................................... 984
Stough v Jett Sett Mgt Services, LLC ................................ 984
Strong, People v ..................................................................... 1068
Stross, People v ...................................................................... 979
Studer, People v ..................................................................... 1068
Sumerlin, People v ................................................................ 1063
Sutton, People v ..................................................................... 1062
Swafford, People v ................................................................. 1015
Swanigan, People v ................................................................ 899
Swanson, Grievance Administrator v .................................. 895
Swartz, Eifler v (In re Miltenberger) ................................... 901
Sweet, People v ...................................................................... 1065
Szpyrka, People v .................................................................. 1018

T
TGM Broadband Cable Services, Beck v ............................. 899
Tacco Falcon Point, Inc v Clapper ....................................... 1156
Tassell Estate, Cotter v (In re Leslie E Tassell Trusts) ..... 895
Taylor v Dep’t of Corrections ............................................... 1017
Taylor, People v .................................................... 368
Taylor, People v ...................................................................... 971
Taylor v Taylor ...................................................................... 1060
Taylor, Village of Northport ................................................. 1004
Taylor Distributing Co, Inc, White v ................. 136
Templeton, People v .............................................................. 899
Terlecki v Silver Lake Prop Ass’n of Indian River ............. 1057
36th Dist Court, Sciotti v ..................................................... 1143
Thomas v Ferguson Enterprises, Inc ................................... 1070
Thomas v Hawkins ................................................................ 884
Thomas, People v (Albert) .................................................... 976
Thomas, People v (Charles) .................................................. 1036
Thomas, People v (Edward) .................................................. 900
Thomas, People v (Yosheyah) ............................................... 898
Thomason, People v .............................................................. 989
Thompkins, People v ..................................................... 974, 1038
Thompson, People v (Amy) ................................................... 1033
Thompson, People v (Derrick) .............................................. 896
lxxx 482 MICH REPORTS

PAGE

Tiggart, People v .................................................................... 1030

Times, People v ...................................................................... 1033
Tincher, People v ................................................................... 977
Titan Ins Co, Spectrum Health v ......................................... 975
Titan Ins Co, Univ of Michigan Regents v ......................... 1074
Toaz v Dep’t of Treasury ...................................................... 1067
Tobias, People v ..................................................................... 880
Tomasello, People v ............................................................... 1071
Tomecek v Bavas ................................................. 484
Toris, People v ....................................................................... 1067
Torres, People v ..................................................................... 1066
Townsend, People v ............................................................... 1030
Tran, People v ........................................................................ 1031
Trapp, People v ...................................................................... 1044
Treasury (Dep’t of), Ameritech Publishing, Inc v .............. 1071
Treasury (Dep’t of), McLeod v ............................................. 977
Treasury (Dep’t of), NSK Corp v ......................................... 978
Treasury (Dep’t of), Toaz v .................................................. 1067
Treasury (Dep’t of), Tyson Foods, Inc v .............................. 899
Trofatter, People v ................................................................. 893
Troost, People v ..................................................................... 895
Troy, In re (Reed v Leary) .................................................... 880
Tucker, People v .................................................................... 1119
Tudor, People v ...................................................................... 982
Turkette, People v ................................................................. 1186
Turner, People v (Leonard) ................................................... 1155
Turner, People v (Torry) ....................................................... 1069
Turner, Inc (Bob) v Frisbee .................................................. 992
Tyner, People v ...................................................................... 1066
Tyson Foods, Inc v Dep’t of Treasury ................................. 899

U
U P Engineers & Architects, Inc, Keller Constr, Inc v ...... 1068
USA Jet Airlines, Inc, Gates v ............................................. 1005
Uncapher, People v ................................................................ 892
Underwood, People v ............................................................. 898
Unger, People v ...................................................................... 1027
United Services Automobile Ass’n, Koroi v ........................ 897
 TABLE OF CASES REPORTED lxxxi

PAGE

United States Fidelity Ins & Guaranty Co v

Michigan Catastrophic Claims Ass’n ............. 414
Unity Apostolic Cathedral v Wayne Co Treasurer ............. 1035
Univ of Michigan Regents v Titan Ins Co .......................... 1074
Upchurch, People v ............................................................... 1119
Uphaus, People v ................................................................... 990

V
Valdez, Dep’t of Human Services v (In re Valdez) .............. 1043
Valdez, In re (Dep’t of Human Services v Valdez) .............. 1043
Van Buren v Panther Crankshafts ....................................... 976
Van Deusen, Grubka v .......................................................... 1187
Van Wynsberghe v American Axle & Mfg Holdings, Inc ... 1017
Vance v Henry Ford Health Sys ........................................... 1019
Vance, People v (Marquis) .................................................... 989
Vance, People v (Michael) ..................................................... 1185
Vandeberg, People v .............................................................. 1068
Vandenberg, People v ............................................................ 980
VanderRoest, Brashers v ....................................................... 977
Vanerian v Charles L Pugh Co, Inc ..................................... 1074
VanVorst v Maxitrol Co ......................................................... 975
Vaughn, People v ................................................................... 990
Vemulapalli v Dep’t of Environmental Quality .................. 974
Vesey, People v (Dameko) ...................................................... 896
Vesey, People v (Dennis) ........................................................ 896
Village of Northport v Busby ............................................... 1004
Village of Northport v Cann ................................................. 1004
Village of Northport v Davis ................................................ 1004
Village of Northport v Funk ................................................. 1004
Village of Northport v Scott ................................................. 1004
Village of Northport v Taylor ............................................... 1004
Village of Northport v Weber ............................................... 1004
Vinton, Prime Financial Services, LLC v ............................ 1069
Vliet, People v ........................................................................ 992
Vodopyanov v Keller Williams Realty Northville Market
Ctr ...................................................................................... 1186

W
Wade, Dep’t of Human Services v (In re Wade) ................. 1001
Wade, In re (Dep’t of Human Services v Wade) ................. 1001
lxxxii 482 MICH REPORTS

PAGE

Wade, People v ....................................................................... 1033

Wakefield, People v ................................................................ 1187
Waldon, People v .................................................................... 977
Walgreen Co, LaBarge v ........................................................ 976
Walgreen Co v Macomb Twp ................................................ 1187
Walker, People v (Gregory) ................................................... 897
Walker, People v (James) ...................................................... 896
Wallace v Dep’t of State Police ............................................. 949
Walls, People v ....................................................................... 1034
Walters v Leech ..................................................................... 1069
Walton, People v .................................................................... 1067
Ward, People v ....................................................................... 1037
Warren, People v .................................................................... 991
Washington, People v ............................................................ 1029
Watkins, People v (Keith) ..................................................... 990
Watkins, People v (Lincoln) .................................................. 1114
Watkins, People v (Sylvester) ............................................... 977
Watson, People v .................................................................... 1035
Watts, People v ...................................................................... 980
Wayne Circuit Judge, Peterson v (In re Peterson) ............. 1035
Wayne Co, Odom v .............................................. 459
Wayne Co Airport Auth, Chambers v ......................... 1013, 1136
Wayne Co Treasurer, Unity Apostolic Cathedral v ............. 1035
Wayne Oakland Agency (The), Schupra v ........................... 1068
Weber, Village of Northport v ............................................... 1004
Wellman, People v ................................................................. 1013
Wells Operating Parating Partnership, LP, Shubh Hotels
Detroit, LLC v ................................................................... 1186
Wendel v Attorney Grievance Comm ................................... 1044
Wengorovius, People v ........................................................... 1187
Wernette, Kim v ..................................................................... 1033
Wescast Ind Cordele, LLC v Continential Teves Inc v ....... 895
West v Farm Bureau Gen Ins Co of Michigan ............ 880, 1037
Westmoore Apartments v Morris ......................................... 976
White, People v (Brian) ......................................................... 984
White, People v (James, Jr) .................................................. 895
White, People v (Mark) ......................................................... 1071
White, People v (Peggy) ........................................................ 991
White v Taylor Distributing Co, Inc .................. 136
 TABLE OF CASES REPORTED lxxxiii

PAGE
Whitsett, People v .................................................................. 1118
Whyte, People v ..................................................................... 1034
Wideman, People v ................................................................ 1068
Wiggins, People v ................................................................... 1033
Wilburn, People v .................................................................. 996
Wilcox v Munger .................................................................... 1049
Wiley, People v ....................................................................... 1030
Wilkes, People v ..................................................................... 990
Wilkinson, People v ............................................................... 1063
Willavize, People v ................................................................. 897
Willett, People v ..................................................................... 1069
Williams v Kent (In re Estate of Kostin) ............................. 894
Williams v Kostin Trust (In re Estate of Kostin) ............... 894
Williams, People v (Anterio) ................................................. 1017
Williams, People v (Anthony) ............................................... 1071
Williams, People v (Artiss) .................................................... 1187
Williams, People v (Bobby) ................................................... 973
Williams, People v (Brian) .................................................... 1071
Williams, People v (Cameron) .............................................. 1029
Williams, People v (Dwayne) ................................................ 973
Williams, People v (Glenn) ................................................... 1035
Williams, People v (James) ................................................... 1042
Williams, People v (Joel) ....................................................... 891
Williams, People v (John) ..................................................... 1031
Williams, People v (Leeatrice) .............................................. 1068
Williams, People v (Lester) ................................................... 1066
Williams, People v (Maurice) ................................................ 972
Williams, People v (Michael Allen) ...................................... 894
Williams, People v (Michael Anthony) ................................. 1066
Williams, People v (Reginald) ............................................... 980
Williams, People v (Shawn) .................................................. 976
Williams, People v (Shelton) ................................................. 1071
Williams, People v (Tammy) ................................................. 1044
Williams, People v (Tervares) ............................................... 971
Williams, People v (Theodore) .............................................. 988
Williamson, Stone v ............................................. 144
Willis, People v (Ralph) ......................................................... 1066
Willis, People v (Russell) ....................................................... 1010
Wilson v Comcast Cablevision Corp ............................ 975, 1017
Wilson, People v (Deon) ........................................................ 1034
lxxxiv 482 MICH REPORTS

PAGE

Wilson, People v (Gaylord) ................................................... 1064

Wilson, People v (Michael) .................................................... 971
Wilson, People v (Sean) ......................................................... 900
Wilson, People v (Wesley) ..................................................... 1187
Winkler, Jones v .................................................................... 1156
Winkler, People v ................................................................... 1071
Witbrodt, People v ................................................................. 971
Wixom Meadows Investments Ltd Partnership v
Fulton Pines Dev Co ........................................................ 1068
Wolford v Duncan .................................................................. 1068
Woodfork, People v ................................................................ 1064
Wooten, People v ........................................................... 973, 1037
Wozniak, People v .................................................................. 973
Wrenfrow, People v ................................................................ 974
Wright v Micro Electronics, Inc ................................... 882, 1038
Wright, People v (Benjamin) ................................................ 991
Wright, People v (Lamar) ..................................................... 991
Wright, People v (Monica) .................................................... 992
Wright v Wright ..................................................................... 858
Wyatt, People v ...................................................................... 1016
Wynn, People v ...................................................................... 977

Y
Yarbrough, People v ............................................................... 897
Young v Nandi ....................................................................... 1007
Young, People v (Cheryl) ....................................................... 1032
Young, People v (Garry) ........................................................ 1071
Young, People v (Kevin) ........................................................ 896
Young, People v (Roger) ........................................................ 1030

Z
Zahn v Kroger Co of Michigan ............................................. 993
Zaker, People v ....................................................................... 1013
Zavradinos v JTRB, Inc II, LLC .......................................... 858
Zebrowski, Fisher v ............................................................... 991
Zentz, People v ....................................................................... 1154
Zigler, People v ....................................................................... 991
Zoica, People v ....................................................................... 897
Zuniga, People v .................................................................... 991
 TABLE OF SPECIAL ORDERS NOT
RELATED TO SPECIFIC CASES

PAGE
PROPOSED AMENDMENTS OF MICHIGAN COURT RULES
MCR 2.112 .................................................................1205, 1231
MCR 2.403 ...........................................................................1218
MCR 2.404 ...........................................................................1221
MCR 2.410 ...........................................................................1222
MCR 2.411 ...........................................................................1222
MCR 2.614 ...........................................................................1201
MCR 3.101 ...........................................................................1234
MCR 3.216 ...........................................................................1223
MCR 3.901 ...........................................................................1208
MCR 3.903 ...........................................................................1208
MCR 3.921 ...........................................................................1209
MCR 3.965 ...........................................................................1209
MCR 3.975 ...........................................................................1209
MCR 3.976 ...........................................................................1210
MCR 3.977 ...........................................................................1212
MCR 3.978 ...........................................................................1213
MCR 7.205 ...........................................................................1203
MCR 7.302 ...........................................................................1206
MCR 7.314 ...........................................................................1207
MCR 7.316 ...........................................................................1207
NEW RULE OF MICHIGAN COURT RULES
MCR 3.979 ...........................................................................1214
PROPOSED AMENDMENT OF MICHIGAN RULES OF EVIDENCE
Rule 611 ...............................................................................1233

lxxxv
 TABLE OF ADMINISTRATIVE ORDERS
AND RULES ADOPTED

ADMINISTRATIVE ORDERS
No. 2008-2 ................................................................................... lxxxix

ADMINISTRATIVE ORDERS ADOPTED

No. 2004-7 .................................................................................. lxxxvii

RULES ADOPTED

MICHIGAN COURT RULES OF 1985

MCR 2.107...................................................................................... cxiii
MCR 2.302 ...................................................................................... cxix
MCR 2.310 ...................................................................................... cxxi
MCR 2.313..................................................................................... cxxii
MCR 2.401..................................................................................... cxxii
MCR 2.506 .................................................................................... cxxiv
MCR 3.901....................................................................................... cxii
MCR 3.903 ..................................................................................... cxvii
MCR 3.920.................................................................................... cxviii
MCR 3.930....................................................................................... cxii
MCR 7.202 ......................................................................................... cx

STATE BOARD OF LAW EXAMINERS

Rule 6........................................................................................... cxxvii

RULES RETAINED

MICHIGAN COURT RULES OF 1985

MCR 3.928 ...................................................................................... cxix

lxxxvi
 ADMINISTRATIVE ORDER
No. 2004-7

Adopted November 25, 2008, effective March 1, 2009 (File No.

2004-04)—REPORTER.
Administrative Order No. 2003-1 and MCL 600.401
et seq. authorize Michigan trial courts to adopt concur-
rent jurisdiction plans within a county or judicial cir-
cuit, subject to approval of the Michigan Supreme
Court. Effective May 1, 2005, the Supreme Court ap-
proved adoption of concurrent jurisdiction plans be-
tween the Third Judicial Circuit Court and the 19th
District Court, the Third Judicial Circuit Court and the
29th District Court, and the Third Judicial Circuit
Court and the 35th District Court. The Third Judicial
Circuit Court and the 34th District Court have recently
submitted a request for approval of a plan that would
allow the 34th District Court to participate in the same
concurrent jurisdiction program that was approved in
Administrative Order No. 2004-7.
The Court hereby approves adoption of the following
concurrent jurisdiction plans effective May 1, 2005
(between the Third Judicial Circuit Court and the 19th
District Court, the Third Judicial Circuit Court and the
29th District Court, and the Third Judicial Circuit
Court and the 35th District Court) and effective March
1, 2009 (between the Third Judicial Circuit Court and
the 34th District Court):
Third Judicial Circuit Court of Wayne County and
the 19th District Court
lxxxvii
lxxxviii 482 MICHIGAN REPORTS

Third Judicial Circuit Court of Wayne County and

the 29th District Court
Third Judicial Circuit Court of Wayne County and
the 35th District Court
Third Judicial Circuit Court and the 34th District
Court
The plans shall remain on file with the State Court
Administrator.
Amendments of concurrent jurisdiction plans may be
implemented by local administrative order pursuant to
MCR 8.112. Plan amendments shall conform to the
requirements of Administrative Order No. 2003-1 and
MCL 600.401 et seq.
 ADMINISTRATIVE ORDER
No. 2008-2
ADOPTION OF A PILOT PROJECT TO STUDY THE EFFECTS OF
THE JURY REFORM PROPOSAL

Entered July 11, 2008 (File No. 2005-19)—REPORTER.

On order of the Court, the judges listed below are
authorized to implement a pilot project to study the
effects of the jury-reform proposal that was published
for comment by this Court in an order that entered July
11, 2006. The purposes of the pilot project are to
determine whether, and in what way, the proposed
jury-reform amendments support the goal of meaning-
ful juror participation, and lead to greater confidence in
the validity of the specific verdict and the overall jury
system. In addition, the Court is interested in the
effects of the proposed rules on court efficiency and the
opinions of the attorneys and jurors who will operate
under them. Courts that participate in the pilot project
will operate under the following rules for the period of
the pilot project, which will continue through December
31, 2010, or as otherwise ordered by the Court. At the
Court’s request, the participating courts will update the
Court on the pilot program’s status, and the judges’
perceptions of the program’s success. The Court antici-
pates that the pilot courts will apply these rules to the
greatest extent possible as a way to test and assess all of
the proposed ideas. The pilot project’s success will be
measured by the Court’s evaluation of surveys that
lxxxix
xc 482 MICHIGAN REPORTS

have been completed by the courts to determine the

jurors’, judges’, and attorneys’ responses to the various
procedures being tested.
Participant judges include the following:

The Honorable Wendy L. Potts (6th Circuit Court)

The Honorable David Viviano (16th Circuit Court)
The Honorable Timothy G. Hicks (14th Circuit Court)
The Honorable Kenneth W. Schmidt and the
Honorable William J. Caprathe (18th Circuit Court)
The Honorable Richard J. Celello (41st Circuit Court)
The Honorable Paul E. Stutesman (45th Circuit Court)
The Honorable Beth Gibson (92nd District Court)
The Honorable Peter J. Wadel (79th District Court)
The Honorable Donald L. Sanderson (2B District
Court)
The Honorable Thomas P. Boyd (55th District Court)
The Honorable Richard W. May (90th District Court)

RULE 2.512 INSTRUCTIONS TO JURY RENDERING VERDICT

(A) Majority Verdict; Stipulations Regarding Number
of Jurors and Verdict. The parties may stipulate in
writing or on the record that
(1) the jury will consist of any number less than 6,
(2) a verdict or a finding of a stated majority of the
jurors will be taken as the verdict or finding of the jury, or
(3) if more than six jurors were impaneled, all of the
jurors may deliberate.
Except as provided in MCR 5.740(C), in the absence
of such stipulation, a verdict in a civil action tried by 6
jurors will be received when 5 jurors agree.
 ADM ORDER 2008-2 xci

(B) Return; Poll.

(1) The jury must return its verdict in open court.
(2) A party may require a poll to be taken by the court
asking each juror if it is his or her verdict.
(3) If the number of jurors agreeing is less than
required, the jury must be sent out for further delib-
eration; otherwise the verdict is complete, and the court
shall discharge the jury.
(C) Discharge From Action; New Jury. The court may
discharge a jury from the action:
(1) because of an accident or calamity requiring it;
(2) by consent of all the parties;
(3) whenever an adjournment or mistrial is declared;
(4) whenever the jurors have deliberated until it
appears that they cannot agree.
The court may order another jury to be drawn, and
the same proceedings may be had before the new jury as
might have been had before the jury discharged.
(D) Responsibility of Officers.
(1) All court officers, including trial attorneys, must
attend during the trial of an action until the verdict of
the jury is announced.
(2) A trial attorney may, on request, be released by
the court from further attendance, or the attorney may
designate an associate or other attorney to act for him
or her during the deliberations of the jury.
(A) Request for Instructions.
(1) At a time the court reasonably directs, the parties
must file written requests that the court instruct the jury
on the law as stated in the requests. In the absence of a
direction from the court, a party may file a written request
for jury instructions at or before the close of the evidence.
xcii 482 MICHIGAN REPORTS

(2) In addition to requests for instructions submitted

under subrule (A)(1), after the close of the evidence,
each party shall submit in writing to the court a
statement of the issues and may submit the party’s
theory of the case regarding each issue. The statement
must be concise, be narrative in form, and set forth as
issues only those disputed propositions of fact that are
supported by the evidence. The theory may include
those claims supported by the evidence or admitted.
(3) A copy of the requested instructions must be served
on the adverse parties in accordance with MCR 2.107.
(4) The court shall inform the attorneys of its pro-
posed action on the requests before their arguments to
the jury.
(5) The court need not give the statements of issues
or theories of the case in the form submitted if the court
presents to the jury the material substance of the issues
and theories of each party.
(B) Instructing the Jury.
(1) At any time during the trial, the court may, with
or without request, instruct the jury on a point of law if
the instruction will materially aid the jury in under-
standing the proceedings and arriving at a just verdict.
(2) Before or after arguments or at both times, as the
court elects, the court shall instruct the jury on the
applicable law, the issues presented by the case, and, if
a party requests as provided in subrule (A)(2), that
party’s theory of the case.
(C) Objections. A party may assign as error the giving
of or the failure to give an instruction only if the party
objects on the record before the jury retires to consider
the verdict (or, in the case of instructions given after
deliberations have begun, before the jury resumes de-
liberations), stating specifically the matter to which the
 ADM ORDER 2008-2 xciii

party objects and the grounds for the objection. Oppor-

tunity must be given to make the objection out of the
hearing of the jury.
(D) Model Civil Jury Instructions.
(1) The Committee on Model Civil Jury Instructions
appointed by the Supreme Court has the authority to
adopt model civil jury instructions (M Civ JI) and to
amend or repeal those instructions approved by the
predecessor committee. Before adopting, amending, or
repealing an instruction, the committee shall publish
notice of the committee’s intent, together with the text
of the instruction to be adopted, or the amendment to
be made, or a reference to the instruction to be re-
pealed, in the manner provided in MCR 1.201. The
notice shall specify the time and manner for comment-
ing on the proposal. The committee shall thereafter
publish notice of its final action on the proposed change,
including, if appropriate, the effective date of the adop-
tion, amendment, or repeal. A model civil jury instruc-
tion does not have the force and effect of a court rule.
(2) Pertinent portions of the instructions approved by
the Committee on Model Civil Jury Instructions or its
predecessor committee must be given in each action in
which jury instructions are given if
(a) they are applicable,
(b) they accurately state the applicable law, and
(c) they are requested by a party.
(3) Whenever the committee recommends that no
instruction be given on a particular matter, the court
shall not give an instruction unless it specifically finds
for reasons stated on the record that
(a) the instruction is necessary to state the applicable
law accurately, and
xciv 482 MICHIGAN REPORTS

(b) the matter is not adequately covered by other

pertinent model civil jury instructions.
(4) This subrule does not limit the power of the court
to give additional instructions on applicable law not
covered by the model instructions. Additional instruc-
tions, when given, must be patterned as nearly as
practicable after the style of the model instructions and
must be concise, understandable, conversational, un-
slanted, and nonargumentative.

RULE 2.513 CONDUCT OF JURY TRIALVIEW

(A) Preliminary Instructions. After the jury is sworn
and before evidence is taken, the court shall provide the
jury with pretrial instructions reasonably likely to assist
in its consideration of the case. Such instructions, at a
minimum, shall communicate the duties of the jury, trial
procedure, and the law applicable to the case as are
reasonably necessary to enable the jury to understand the
proceedings and the evidence. The jury also shall be
instructed about the elements of all civil claims or all
charged offenses, as well as the legal presumptions and
burdens of proof. The court shall provide each juror with
a copy of such instructions. MCR 2.512(D)(2) does not
apply to such preliminary instructions. By Jury. On mo-
tion of either party or on its own initiative, the court may
order an officer to take the jury as a whole to view
property or a place where a material event occurred.
During the view, no person other than the officer desig-
nated by the court may speak to the jury concerning a
subject connected with the trial. The court may order the
party requesting a jury view to pay the expenses of the
view.
(B) Court’s Responsibility. The trial court must con-
trol the proceedings during trial, limit the evidence and
arguments to relevant and proper matters, and take
 ADM ORDER 2008-2 xcv

appropriate steps to ensure that the jurors will not be

exposed to information or influences that might affect
their ability to render an impartial verdict on the evidence
presented in court. The court may not communicate with
the jury or any juror pertaining to the case without
notifying the parties and permitting them to be present.
The court must ensure that all communications pertain-
ing to the case between the court and the jury or any juror
are made a part of the record. By Court. On application of
either party or on its own initiative, the court sitting as
trier of fact without a jury may view property or a place
where a material event occurred.
(C) Opening Statements. Unless the parties and the
court agree otherwise, the plaintiff or the prosecutor,
before presenting evidence, must make a full and fair
statement of the case and the facts the plaintiff or the
prosecutor intends to prove. Immediately thereafter, or
immediately before presenting evidence, the defendant
may make a similar statement. The court may impose
reasonable time limits on the opening statements.
(D) Interim Commentary. Each party may, in the
court’s discretion, present interim commentary at ap-
propriate junctures of the trial.
(E) Reference Documents. The court must encourage
counsel in civil and criminal cases to provide the jurors
with a reference document or notebook, the contents of
which should include, but which is not limited to,
witness lists, relevant statutory provisions, and, in
cases where the interpretation of a document is at issue,
copies of the relevant document. The court and the
parties may supplement the reference document during
trial with copies of the preliminary jury instructions,
admitted exhibits, and other appropriate information to
assist jurors in their deliberations.
xcvi 482 MICHIGAN REPORTS

(F) Deposition Summaries. Where it appears likely

that the contents of a deposition will be read to the jury,
the court should encourage the parties to prepare
concise, written summaries of depositions for reading at
trial in lieu of the full deposition. Where a summary is
prepared, the opposing party shall have the opportunity
to object to its contents. Copies of the summaries should
be provided to the jurors before they are read.
(G) Scheduling Expert Testimony. The court may, in its
discretion, craft a procedure for the presentation of all
expert testimony to assist the jurors in performing their
duties. Such procedures may include, but are not limited
to:
(1) Scheduling the presentation of the parties’ expert
witnesses sequentially; or
(2) allowing the opposing experts to be present dur-
ing the other’s testimony and to aid counsel in formu-
lating questions to be asked of the testifying expert on
cross-examination; or
(3) providing for a panel discussion by all experts on
a subject after or in lieu of testifying. The panel
discussion, moderated by a neutral expert or the trial
judge, would allow the experts to question each other.
(H) Note Taking by Jurors. The court may permit the
jurors to take notes regarding the evidence presented in
court. If the court permits note taking, it must instruct
the jurors that they need not take notes, and they should
not permit note taking to interfere with their attentive-
ness. If the court allows jurors to take notes, jurors must
be allowed to refer to their notes during deliberations, but
the court must instruct the jurors to keep their notes
confidential except as to other jurors during deliberations.
The court shall ensure that all juror notes are collected
and destroyed when the trial is concluded.
 ADM ORDER 2008-2 xcvii

(I) Juror Questions. The court may permit the jurors to

ask questions of witnesses. If the court permits jurors to
ask questions, it must employ a procedure that ensures
that such questions are addressed to the witnesses by the
court itself, that inappropriate questions are not asked,
and that the parties have an opportunity outside the
hearing of the jury to object to the questions. The court
shall inform the jurors of the procedures to be followed for
submitting questions to witnesses.
(J) Jury View. On motion of either party, on its own
initiative, or at the request of the jury, the court may order
a jury view of property or of a place where a material event
occurred. The parties are entitled to be present at the jury
view. During the view, no person, other than an officer
designated by the court, may speak to the jury concerning
the subject connected with the trial. Any such communi-
cation must be recorded in some fashion.
(K) Juror Discussion. After informing the jurors that
they are not to decide the case until they have heard all
the evidence, instructions of law, and arguments of coun-
sel, the court may instruct the jurors that they are
permitted to discuss the evidence among themselves in
the jury room during trial recesses. The jurors should be
instructed that such discussions may only take place when
all jurors are present and that such discussions must be
clearly understood as tentative pending final presentation
of all evidence, instructions, and argument.
(L) Closing Arguments. After the close of all the
evidence, the parties may make closing arguments. The
plaintiff or the prosecutor is entitled to make the first
closing argument. If the defendant makes an argument,
the plaintiff or the prosecutor may offer a rebuttal
limited to the issues raised in the defendant’s argu-
ment. The court may impose reasonable time limits on
the closing arguments.
xcviii 482 MICHIGAN REPORTS

(M) Comment on the Evidence. After the close of the

evidence and arguments of counsel, the court may fairly
and impartially sum up the evidence and comment to
the jury about the weight of the evidence, if it also
instructs the jury that it is to determine for itself the
weight of the evidence and the credit to be given to the
witnesses and that jurors are not bound by the court’s
summation or comment. The court shall not comment
on the credibility of witnesses or state a conclusion on
the ultimate issue of fact before the jury.
(N) Final Instructions to the Jury.
(1) Before closing arguments, the court must give the
parties a reasonable opportunity to submit written re-
quests for jury instructions. Each party must serve a copy
of the written requests on all other parties. The court
must inform the parties of its proposed action on the
requests before their closing arguments. After closing
arguments are made or waived, the court must instruct
the jury as required and appropriate, but at the discretion
of the court, and on notice to the parties, the court may
instruct the jury before the parties make closing argu-
ments. After jury deliberations begin, the court may give
additional instructions that are appropriate.
(2) Solicit Questions about Final Instructions. As
part of the final jury instructions, the court shall advise
the jury that it may submit in a sealed envelope given to
the bailiff any written questions about the jury instruc-
tions that arise during deliberations. Upon concluding
the final instructions, the court shall invite the jurors to
ask any questions in order to clarify the instructions
before they retire to deliberate.
If questions arise, the court and the parties shall
convene, in the courtroom or by other agreed-upon
means. The question shall be read into the record, and
the attorneys shall offer comments on an appropriate
 ADM ORDER 2008-2 xcix

response. The court may, in its discretion, provide the

jury with a specific response to the jury’s question, but
the court shall respond to all questions asked, even if
the response consists of a directive for the jury to
continue its deliberations.
(3) Copies of Final Instructions. The court shall
provide each juror with a written copy of the final jury
instructions to take into the jury room for deliberation.
The court, in its discretion, also may provide the jury
with a copy of electronically recorded instructions.
(4) Clarifying or Amplifying Final Instructions. When it
appears that a deliberating jury has reached an impasse,
or is otherwise in need of assistance, the court may invite
the jurors to list the issues that divide or confuse them in
the event that the judge can be of assistance in clarifying
or amplifying the final instructions.
(O) Materials in the Jury Room. The court shall permit
the jurors, on retiring to deliberate, to take into the jury
room their notes and final instructions. The court may
permit the jurors to take into the jury room the reference
document, if one has been prepared, as well as any
exhibits and writings admitted into evidence.
(P) Provide Testimony or Evidence. If, after beginning
deliberation, the jury requests a review of certain testi-
mony or evidence that has not been allowed into the jury
room under subrule (O), the court must exercise its
discretion to ensure fairness and to refuse unreasonable
requests, but it may not refuse a reasonable request. The
court may make a video or audio recording of witness
testimony, or prepare an immediate transcript of such
testimony, and such tape or transcript, or other testimony
or evidence, may be made available to the jury for its
consideration. The court may order the jury to deliberate
further without the requested review, as long as the
c 482 MICHIGAN REPORTS

possibility of having the testimony or evidence reviewed at

a later time is not foreclosed.

RULE 2.514 RENDERING VERDICTSPECIAL VERDICTS

(A) Use of Special Verdicts; Form. The court may
require the jury to return a special verdict in the form
of a written finding on each issue of fact, rather than a
general verdict. If a special verdict is required, the court
shall, in advance of argument and in the absence of the
jury, advise the attorneys of this fact and, on the record
or in writing, settle the form of the verdict. The court
may submit to the jury:
(1) written questions that may be answered categori-
cally and briefly;
(2) written forms of the several special findings that
might properly be made under the pleadings and evi-
dence; or
(3) the issues by another method, and require the
written findings it deems most appropriate.
The court shall give to the jury the necessary expla-
nation and instruction concerning the matter submit-
ted to enable the jury to make its findings on each issue.
(B) Judgment. After a special verdict is returned, the
court shall enter judgment in accordance with the jury’s
findings.
(C) Failure to Submit Question; Waiver; Findings by
Court. If the court omits from the special verdict form
an issue of fact raised by the pleadings or the evidence,
a party waives the right to a trial by jury of the issue
omitted unless before the jury retires the party de-
mands its submission to the jury. The court may make
a finding as to an issue omitted without a demand; or, if
the court fails to do so, it is deemed to have made a
finding in accord with the judgment on the special
verdict.
 ADM ORDER 2008-2 ci

(A) Majority Verdict; Stipulations Regarding Number

of Jurors and Verdict. The parties may stipulate in
writing or on the record that
(1) the jury will consist of any number less than 6,
(2) a verdict or a finding of a stated majority of the
jurors will be taken as the verdict or finding of the jury, or
(3) if more than 6 jurors were impaneled, all the
jurors may deliberate.
Except as provided in MCR 5.740(C), in the absence
of such stipulation, a verdict in a civil action tried by 6
jurors will be received when 5 jurors agree.
(B) Return; Poll.
(1) The jury must return its verdict in open court.
(2) A party may require a poll to be taken by the court
asking each juror if it is his or her verdict.
(3) If the number of jurors agreeing is less than
required, the jury must be sent back for further delib-
eration; otherwise, the verdict is complete, and the
court shall discharge the jury.
(C) Discharge From Action; New Jury. The court may
discharge a jury from the action:
(1) because of an accident or calamity requiring it;
(2) by consent of all the parties;
(3) whenever an adjournment or mistrial is declared;
(4) whenever the jurors have deliberated and it
appears that they cannot agree.
The court may order another jury to be drawn, and the
same proceedings may be had before the new jury as
might have been had before the jury that was discharged.
(D) Responsibility of Officers.
(1) All court officers, including trial attorneys, must
attend during the trial of an action until the verdict of
the jury is announced.
cii 482 MICHIGAN REPORTS

(2) A trial attorney may, on request, be released by

the court from further attendance, or the attorney may
designate an associate or other attorney to act for him
or her during the deliberations of the jury.

RULE 2.515 SPECIAL VERDICTSMOTION FOR DIRECTED VER-

DICT
A party may move for a directed verdict at the close
of the evidence offered by an opponent. The motion
must state specific grounds in support of the motion. If
the motion is not granted, the moving party may offer
evidence without having reserved the right to do so, as
if the motion had not been made. A motion for a
directed verdict that is not granted is not a waiver of
trial by jury, even though all parties to the action have
moved for directed verdicts.
(A) Use of Special Verdicts; Form. The court may
require the jury to return a special verdict in the form
of a written finding on each issue of fact, rather than a
general verdict. If a special verdict is required, the court
shall, in advance of argument and in the absence of the
jury, advise the attorneys of this fact and, on the record
or in writing, settle the form of the verdict. The court
may submit to the jury:
(1) written questions that may be answered categori-
cally and briefly;
(2) written forms of the several special findings that
might properly be made under the pleadings and evi-
dence; or
(3) the issues by another method, and require the
written findings it deems most appropriate.
The court shall give to the jury the necessary expla-
nation and instruction concerning the matter submit-
ted to enable the jury to make its findings on each issue.
 ADM ORDER 2008-2 ciii

(B) Judgment. After a special verdict is returned, the

court shall enter judgment in accordance with the jury’s
findings.
(C) Failure to Submit Question; Waiver; Findings by
Court. If the court omits from the special verdict form
an issue of fact raised by the pleadings or the evidence,
a party waives the right to a trial by jury of the issue
omitted unless the party demands its submission to the
jury before it retires for deliberations. The court may
make a finding with respect to an issue omitted without
a demand. If the court fails to do so, it is deemed to have
made a finding in accord with the judgment on the
special verdict.

RULE 2.516 MOTION FOR DIRECTED VERDICTINSTRUCTIONS

TO JURY
(A) Request for Instructions.
(1)At a time the court reasonably directs, the parties
must file written requests that the court instruct the
jury on the law as stated in the requests. In the absence
of a direction from the court, a party may file a written
request for jury instructions at or before the close of the
evidence.
(2) In addition to requests for instructions submitted
under subrule (A)(1), after the close of the evidence
each party shall submit in writing to the court a
statement of the issues and may submit the party’s
theory of the case as to each issue. The statement must
be concise, be narrative in form, and set forth as issues
only those disputed propositions of fact which are
supported by the evidence. The theory may include
those claims supported by the evidence or admitted.
(3) A copy of the requested instructions must be
served on the adverse parties in accordance with MCR
2.107.
civ 482 MICHIGAN REPORTS

(4) The court shall inform the attorneys of its pro-

posed action on the requests before their arguments to
the jury.
(5) The court need not give the statements of issues
or theories of the case in the form submitted if the court
presents to the jury the material substance of the issues
and theories of each party.
(B) Instructing the Jury.
(1) After the jury is sworn and before evidence is
taken, the court shall give such preliminary instruc-
tions regarding the duties of the jury, trial procedure,
and the law applicable to the case as are reasonably
necessary to enable the jury to understand the proceed-
ings and the evidence. MCR 2.516(D)(2) does not apply
to such preliminary instructions.
(2) At any time during the trial, the court may, with
or without request, instruct the jury on a point of law if
the instruction will materially aid the jury to under-
stand the proceedings and arrive at a just verdict.
(3) Before or after arguments or at both times, as the
court elects, the court shall instruct the jury on the
applicable law, the issues presented by the case, and, if
a party requests as provided in subrule (A)(2), that
party’s theory of the case. The court, at its discretion,
may also comment on the evidence, the testimony, and
the character of the witnesses as the interests of justice
require.
(4) While the jury is deliberating, the court may
further instruct the jury in the presence of or after
reasonable notice to the parties.
(5) Either on the request of a party or on the court’s
own motion, the court may provide the jury with
(a) a full set of written instructions,
 ADM ORDER 2008-2 cv

(b) a full set of electronically recorded instructions,

or
(c) a partial set of written or recorded instructions if
the jury asks for clarification or restatement of a
particular instruction or instructions or if the parties
agree that a partial set may be provided and agree on
the portions to be provided.
If it does so, the court must ensure that such instruc-
tions are made a part of the record.
(C) Objections. A party may assign as error the giving
of or the failure to give an instruction only if the party
objects on the record before the jury retires to consider
the verdict (or, in the case of instructions given after
deliberations have begun, before the jury resumes de-
liberations), stating specifically the matter to which the
party objects and the grounds for the objection. Oppor-
tunity must be given to make the objection out of the
hearing of the jury.
(D) Model Civil Jury Instructions.
(1) The Committee on Model Civil Jury Instructions
appointed by the Supreme Court has the authority to
adopt model civil jury instructions (M Civ JI) and to
amend or repeal those instructions approved by the
predecessor committee. Before adopting, amending, or
repealing an instruction, the committee shall publish
notice of the committee’s intent, together with the text
of the instruction to be adopted, or the amendment to
be made, or a reference to the instruction to be re-
pealed, in the manner provided in MCR 1.201. The
notice shall specify the time and manner for comment-
ing on the proposal. The committee shall thereafter
publish notice of its final action on the proposed change,
including, if appropriate, the effective date of the adop-
tion, amendment, or repeal. A model civil jury instruc-
tion does not have the force and effect of a court rule.
cvi 482 MICHIGAN REPORTS

(2) Pertinent portions of the instructions approved by

the Committee on Model Civil Jury Instructions or its
predecessor committee must be given in each action in
which jury instructions are given if
(a) they are applicable,
(b) they accurately state the applicable law, and
(c) they are requested by a party
(3) Whenever the committee recommends that no
instruction be given on a particular matter, the court
shall not give an instruction unless it specifically finds
for reasons stated on the record that
(a) the instruction is necessary to state the applicable
law accurately, and
(b) the matter is not adequately covered by other
pertinent model civil jury instructions.
(4) This subrule does not limit the power of the court
to give additional instructions on applicable law not
covered by the model instructions. Additional instruc-
tions when given must be patterned as nearly as prac-
ticable after the style of the model instructions and
must be concise, understandable, conversational, un-
slanted, and nonargumentative.
A party may move for a directed verdict at the close
of the evidence offered by an opponent. The motion
must state specific grounds in support of the motion. If
the motion is not granted, the moving party may offer
evidence without having reserved the right to do so, as
if the motion had not been made. A motion for a
directed verdict that is not granted is not a waiver of
trial by jury, even though all parties to the action have
moved for directed verdicts.

RULE 6.414. CONDUCT OF JURY TRIAL

 ADM ORDER 2008-2 cvii

(A) Before trial begins, the court should give the jury
appropriate pretrial instructions.
(B) Court’s Responsibility. The trial court must con-
trol the proceedings during trial, limit the evidence and
arguments to relevant and proper matters, and take
appropriate steps to ensure that the jurors will not be
exposed to information or influences that might affect
their ability to render an impartial verdict on the
evidence presented in court. The court may not com-
municate with the jury or any juror pertaining to the
case without notifying the parties and permitting them
to be present. The court must ensure that all commu-
nications pertaining to the case between the court and
the jury or any juror are made a part of the record.
(C) Opening Statements. Unless the parties and the
court agree otherwise, the prosecutor, before presenting
evidence, must make a full and fair statement of the
prosecutor’s case and the facts the prosecutor intends
to prove. Immediately thereafter, or immediately before
presenting evidence, the defendant may make a like
statement. The court may impose reasonable time lim-
its on the opening statements.
(D) Note Taking by Jurors. The court may permit the
jurors to take notes regarding the evidence presented in
court. If the court permits note taking, it must instruct
the jurors that they need not take notes and they should
not permit note taking to interfere with their attentive-
ness. The court also must instruct the jurors to keep
their notes confidential except as to other jurors during
deliberations. The court may, but need not, allow jurors
to take their notes into deliberations. If the court
decides not to permit the jurors to take their notes into
deliberations, the court must so inform the jurors at the
same time it permits the note taking. The court shall
cviii 482 MICHIGAN REPORTS

ensure that all juror notes are collected and destroyed

when the trial is concluded.
(E) Juror Questions. The court may, in its discretion,
permit the jurors to ask questions of witnesses. If the
court permits jurors to ask questions, it must employ a
procedure that ensures that inappropriate questions
are not asked, and that the parties have the opportunity
to object to the questions.
(F) View. The court may order a jury view of property
or of a place where a material event occurred. The
parties are entitled to be present at the jury view.
During the view, no persons other than, as permitted by
the trial judge, the officer in charge of the jurors, or any
person appointed by the court to direct the jurors’
attention to a particular place or site, and the trial
judge, may speak to the jury concerning a subject
connected with the trial; any such communication must
be recorded in some fashion.
(G) Closing Arguments. After the close of all the
evidence, the parties may make closing arguments. The
prosecutor is entitled to make the first closing argu-
ment. If the defendant makes an argument, the pros-
ecutor may offer a rebuttal limited to the issues raised
in the defendant’s argument. The court may impose
reasonable time limits on the closing arguments.
(H) Instructions to the Jury. Before closing argu-
ments, the court must give the parties a reasonable
opportunity to submit written requests for jury instruc-
tions. Each party must serve a copy of the written
requests on all other parties. The court must inform the
parties of its proposed action on the requests before
their closing arguments. After closing arguments are
made or waived, the court must instruct the jury as
required and appropriate, but at the discretion of the
court, and on notice to the parties, the court may
 ADM ORDER 2008-2 cix

instruct the jury before the parties make closing argu-

ments, and give any appropriate further instructions
after argument. After jury deliberations begin, the
court may give additional instructions that are appro-
priate.
(I) Materials in the Jury Room. The court may
permit the jury, on retiring to deliberate, to take into
the jury room a writing, other than the charging
document, setting forth the elements of the charges
against the defendant and any exhibits and writings
admitted into evidence. On the request of a party or on
its own initiative, the court may provide the jury with a
full set of written instructions, a full set of electroni-
cally recorded instructions, or a partial set of written or
recorded instructions if the jury asks for clarification or
restatement of a particular instruction or instructions
or if the parties agree that a partial set may be provided
and agree on the portions to be provided. If it does so,
the court must ensure that such instructions are made
a part of the record.
(J) Review of Evidence. If, after beginning delibera-
tion, the jury requests a review of certain testimony or
evidence, the court must exercise its discretion to
ensure fairness and to refuse unreasonable requests,
but it may not refuse a reasonable request. The court
may order the jury to deliberate further without the
requested review, so long as the possibility of having the
testimony or evidence reviewed at a later time is not
foreclosed.
KELLY, J. I oppose the implementation of the pilot
project. I am particularly concerned with MCR
2.513(G), 2.513(K), and 2.513(M). These court-rule
changes represent a radical departure from current
practices and are unwise, even in the form of a pilot
project.
 AMENDMENTS OF MICHIGAN
COURT RULES OF 1985

Adopted September 30, 2008, effective January 1, 2009 (File No.

2006-09)—REPORTER.

[The present language is repealed and

replaced by the following language unless
otherwise indicated below:]

On order of the Court, notice of the proposed changes

and an opportunity for comment in writing and at a
public hearing having been provided, and consideration
having been given to the comments received, the fol-
lowing amendment of Rule 7.202 of the Michigan Court
Rules is adopted, effective January 1, 2009.

[The present language would be amended

as indicated below:]
RULE 7.202 DEFINITIONS.
For purposes of this subchapter:
(1)-(5) [Unchanged.]
(6) “final judgment” or “final order” means:
(a) In a civil case,
(i) the first judgment or order that disposes of all the
claims and adjudicates the rights and liabilities of all
the parties, including such an order entered after rever-
sal of an earlier final judgment or order,
cx
 MICHIGAN COURT RULES OF 1985 cxi

(ii) an order designated as final under MCR 2.604(B),

(iii) in a domestic relations action, a postjudgment
order affecting the custody of a minor,
(iv) a postjudgment order awarding or denying attor-
ney fees and costs under MCR 2.403, 2.405, 2.625 or
other law or court rule,
(v) Aan order denying governmental immunity to a
governmental party, including a governmental agency,
official, or employee under MCR 2.116(C)(7) or an order
denying a motion for summary disposition under MCR
2.116(C)(10) based on a claim of governmental immunity;
(b) [Unchanged.]
Staff Comment: This amendment clarifies that motions for summary
disposition that involve claims of governmental immunity based on MCR
2.116(C)(7) and (C)(10) that are denied are appealable by right in the
Court of Appeals. This language addresses the jurisdictional issue that
arose in the cases of Newton v Michigan State Police, 263 Mich App 251
(2004), and Walsh v Taylor, 263 Mich App 618 (2004).

The staff comment is not an authoritative construction by the Court.

Adopted September 30, 2008, effective January 1, 2009 (File No.

2007-28)—REPORTER.

[The present language is repealed and

replaced by the following language unless
otherwise indicated below:]

On order of the Court, notice of the proposed amend-

ment of Rule 3.901 and new Rule 3.930 of the Michigan
Court Rules and an opportunity for comment in writing
and at a public hearing having been provided, and consid-
eration having been given to the comments received, the
following amendment of Rule 3.901 and new Rule 3.930 of
the Michigan Court Rules are adopted, effective January
1, 2009.
cxii 482 MICHIGAN REPORTS

[The present language would be amended

as indicated below:]
RULE 3.901 APPLICABILITY OF RULES.
(A) [Unchanged.]
(B) Application. Unless the context otherwise indicates:
(1) MCR 3.901-3.9283.930, 3.980, and 3.911-3.933
apply to delinquency proceedings and child protective
proceedings;
(2)–(5) [Unchanged.]
RULE 3.930 RECEIPT AND RETURN OR DISPOSAL OF EXHIBITS
IN JUVENILE PROCEEDINGS.
(A) Receipt of Exhibits. Exhibits introduced into
evidence at or during court proceedings shall be re-
ceived and maintained as provided by the Michigan
Supreme Court Case File Management Standards.
(B) Return or Disposal of Exhibits. At the conclusion
of a trial or hearing, exhibits may be retrieved by the
parties who submitted them except that any weapons
and drugs shall be returned to the confiscating agency
for proper disposition. If the exhibits are not retrieved
by the parties within 56 days after conclusion of the
trial or hearing, the court may properly dispose of the
exhibits without notice to the parties.
(C) Confidentiality. If the court retains an exhibit
after a hearing or trial and the exhibit is confidential as
provided by MCR 3.903(A)(3), the court must continue
to maintain the exhibit in a confidential manner.
Staff Comment: These amendments allow the court to return or
destroy exhibits within 56 days of the completion of the trial or hearing
in a juvenile proceeding. In addition, the court must maintain confiden-
tial documents that are admitted as exhibits in accordance with MCR
3.903(A)(3).
The staff comment is not an authoritative construction by the Court.
 MICHIGAN COURT RULES OF 1985 cxiii

Adopted September 30, 2008, effective January 1, 2009 (File No.

2007-30)—REPORTER.

[The present language is repealed and

replaced by the following language unless
otherwise indicated below:]
On order of the Court, notice of the proposed changes
and an opportunity for comment in writing and at a
public hearing having been provided, and consideration
having been given to the comments received, the fol-
lowing amendment of Rule 2.107 of the Michigan Court
Rules is adopted, effective January 1, 2009.

[The present language would be amended

as indicated below:]
RULE 2.107 SERVICE AND FILING OF PLEADINGS AND OTHER
PAPERS.
(A)-(B) [Unchanged.]
(C) Manner of Service. Service of a copy of a paper on
an attorney must be made by delivery or by mailing to
the attorney at his or her last known business address
or, if the attorney does not have a business address,
then to his or her last known residence address. Service
on a party must be made by delivery or by mailing to the
party at the address stated in the party’s pleadings.
(1) Delivery to Attorney. Delivery of a copy to an
attorney within this rule means
(a) handing it to the attorney personally, or, if agreed
to by the parties, e-mailing it to the attorney as allowed
under MCR 2.107(C)(4);
(b) leaving it at the attorney’s office with the person
in charge or, if no one is in charge or present, by leaving
it in a conspicuous place; or
cxiv 482 MICHIGAN REPORTS

(c) if the office is closed or the attorney has no office,

by leaving it at the attorney’s usual residence with some
person of suitable age and discretion residing there.
(2) Delivery to Party. Delivery of a copy to a party
within this rule means
(a) handing it to the party personally, or, if agreed to
by the parties, e-mailing it to the party as allowed under
MCR 2.107(C)(4); or
(b) leaving it at the party’s usual residence with some
person of suitable age and discretion residing there.
(3) Mailing. Mailing a copy under this rule means
enclosing it in a sealed envelope with first class postage
fully prepaid, addressed to the person to be served, and
depositing the envelope and its contents in the United
States mail. Service by mail is complete at the time of
mailing.
(4) E-mail. Some or all of the parties may agree to
e-mail service among themselves by e-mail by filing a
stipulation in that case. Some or all of the parties may
agree to e-mail service by a court by filing an agreement
with that court to do so. E-mail service shall be subject
to the following conditions:
(a) The stipulation or agreement for service by e-mail
shall set forth the e-mail addresses of the parties or
attorneys that agree to e-mail service, which shall include
the same e-mail address currently on file with the State
Bar of Michigan. If an attorney is not a member of the
State Bar of Michigan, the e-mail address shall be the
e-mail address currently on file with the appropriate
registering agency in the state of the attorney’s admission.
Parties and attorneys who have stipulated or agreed to
service by e-mail under this subsection shall immediately
notify all other parties and the court if the party’s or
attorney’s e-mail address changes.
 MICHIGAN COURT RULES OF 1985 cxv

(b) The parties shall set forth in the stipulation or

agreement all limitations and conditions concerning
e-mail service, including but not limited to:
(i) the maximum size of the document that may be
attached to an e-mail;
(ii) designation of exhibits as separate documents;
(iii) the obligation (if any) to furnish paper copies of
e-mailed documents; and
(iv) the names and e-mail addresses of other individu-
als in the office of an attorney of record designated to
receive e-mail service on behalf of a party.
(c) Documents served by e-mail must be in PDF
format or other format that prevents the alteration of
the document contents.
(d) A paper served by e-mail that an attorney is
required to sign may include the attorney’s actual
signature or a signature block with the name of the
signatory accompanied by “s/” or “/s/.” That designa-
tion shall constitute a signature for all purposes, includ-
ing those contemplated by MCR 2.114(C) and (D).
(e) Each e-mail that transmits a document shall
include a subject line that identifies the case by court,
party name, case number, and the title or legal descrip-
tion of the document(s) being sent.
(f) An e-mail transmission sent after 4:30 p.m. East-
ern Time shall be deemed to be served on the next day
that is not a Saturday, Sunday, or legal holiday. Service
by e-mail under this subrule is treated as service by
delivery under MCR 2.107(C)(1).
(g) A party may withdraw from a stipulation or
agreement for service by e-mail if that party notifies the
other party or parties and the court in writing at least
28 days in advance of the withdrawal.
cxvi 482 MICHIGAN REPORTS

(h) Service by e-mail is complete upon transmission,

unless the party making service learns that the at-
tempted service did not reach the e-mail address of the
intended recipient. If an e-mail is returned as undeliv-
erable, the party, attorney, or court must serve the
paper or other document by regular mail under MCR
2.107(C)(3), and include a copy of the return notice
indicating that the e-mail was undeliverable. A party,
attorney, or court must also retain a notice that the
e-mail was returned as undeliverable.
(i) The e-mail sender shall maintain an archived record
of sent items that shall not be purged until the conclusion
of the case, including the disposition of all appeals.
Staff Comment: The amendments allow parties or attorneys to volun-
tarily agree to receive notices and other documents from the court by e-mail,
similar to the current ability of parties to stipulate to serve one another by
e-mail.

The staff comment is not an authoritative construction by the Court.

Adopted September 30, 2008, effective January 1, 2009 (File No.

2008-22)—REPORTER.

[The present language is repealed and

replaced by the following language unless
otherwise indicated below:]

On order of the Court, notice of the proposed changes

and an opportunity for comment in writing and at a public
hearing having been provided, and consideration having
been given to the comments received, the following
amendments of Rules 3.903 and 3.920 of the Michigan
Court Rules are adopted, effective January 1, 2009.

[The present language would be amended

as indicated below:]
 MICHIGAN COURT RULES OF 1985 cxvii

RULE 3.903 DEFINITIONS.

(A) General Definitions. When used in this subchap-
ter, unless the context otherwise indicates:
(1)-(2) [Unchanged.]
(3) “Confidential file” means
(a) [Unchanged.]
(b) the contents of a social file maintained by the
court, including materials such as
(i)-(iii) [Unchanged.]
(iv) Family Independence AgencyDepartment of Hu-
man Services records;
(v) [Unchanged.]
(vi) victim statements.;
(vii) information regarding the identity or location of a
foster parent, preadoptive parent, or relative caregiver.
(4)-(26) [Unchanged.]
(B) [Unchanged.]
(C) Child Protective Proceedings. When used in child
protective proceedings, unless the context otherwise indi-
cates:
(1)-(3) [Unchanged.]
(4) “Foster care” means 24-hour a day substitute care
for children placed away from their parents, guardians,
or legal custodians, and for whom the court has given
the Family Independence AgencyDepartment of Human
Services placement and care responsibility, including,
but not limited to,
(a)-(b) [Unchanged.]
(5)-(10) [Unchanged.]
(D) Designated Proceedings.
(1)-(7) [Unchanged.]
cxviii 482 MICHIGAN REPORTS

(8) “Specified juvenile violation” means any offense,

attempted offense, conspiracy to commit an offense, or
solicitation to commit an offense, as enumerated in
MCL 712A.2d, that would constitute:
(a)-(o) [Unchanged.]
(p) escape or attempted escape from a medium-security
or high-security facility operated by the Family Indepen-
dence AgencyDepartment of Human Services or a high-
security facility operated by a private agency under con-
tract with the Family Independence AgencyDepartment
of Human Services, MCL 750.186a;
(q)-(r) [Unchanged.]
(9) [Unchanged.]
(E) [Unchanged.]
RULE 3.920 SERVICE OF PROCESS.
(A)–(G) [Unchanged.]
(H) Proof of Service.
(1)–(3) [Unchanged.]
(4) Content. The proof of service must identify the
papers served. A proof of service for papers served on a
foster parent, preadoptive parent, or relative caregiver
shall be maintained in the confidential social file as
identified in MCR 3.903(A)(3)(b)(vii).
(5) [Unchanged.]
Staff Comment: The amendments clarify that information regarding
the identity or location of a foster parent, preadoptive parent, or relative
caregiver is part of the confidential file and, therefore, a proof of service
that includes identifying or location information regarding those parties
must also be maintained in the confidential file. In addition, the amend-
ments change references in the rule from Family Independence Agency to
Department of Human Services.

The staff comment is not an authoritative construction by the Court.

 MICHIGAN COURT RULES OF 1985 cxix

Adopted October 14, 2008, effective immediately (File No. 2008-19)—

REPORTER.

[The present language is repealed and

replaced by the following language unless
otherwise indicated below:]

By order dated May 6, 2008, this Court adopted the

amendment of Rule 3.928 of the Michigan Court Rules
with immediate effect. Notice of the proposed changes
and an opportunity for comment in writing and at a
public hearing having been provided, and consideration
having been given to the comments received, the
amendment of Rule 3.928 of the Michigan Court Rules
is retained.

Adopted December 16, 2008, effective January 1, 2009 (File No.

2007-24)—REPORTER.

[The present language is repealed and

replaced by the following language unless
otherwise indicated below:]
On order of the Court, notice of the proposed changes
and an opportunity for comment in writing and at a
public hearing having been provided, and consideration
having been given to the comments received, the fol-
lowing amendments of Rules 2.302, 2.310, 2.313, 2.401,
and 2.506 of the Michigan Court Rules are adopted,
effective January 1, 2009.

[The present language would be amended

as indicated below:]
RULE 2.302 GENERAL RULES GOVERNING DISCOVERY.
(A) [Unchanged.]
(B) Scope of Discovery.
cxx 482 MICHIGAN REPORTS

(1) In General. Parties may obtain discovery regard-

ing any matter, not privileged, which is relevant to the
subject matter involved in the pending action, whether
it relates to the claim or defense of the party seeking
discovery or to the claim or defense of another party,
including the existence, description, nature, custody,
condition, and location of books, documents, other
tangible things, or electronically stored information
and the identity and location of persons having knowl-
edge of a discoverable matter. It is not ground for
objection that the information sought will be inadmis-
sible at trial if the information sought appears reason-
ably calculated to lead to the discovery of admissible
evidence.
(2)-(4) [Unchanged.]
(5) Electronically Stored Information. A party has
the same obligation to preserve electronically stored
information as it does for all other types of information.
Absent exceptional circumstances, a court may not
impose sanctions under these rules on a party for failing
to provide electronically stored information lost as a
result of the routine, good-faith operation of an elec-
tronic information system.
(6) Limitation of Discovery of Electronic Materials. A
party need not provide discovery of electronically stored
information from sources that the party identifies as
not reasonably accessible because of undue burden or
cost. On motion to compel discovery or for a protective
order, the party from whom discovery is sought must
show that the information is not reasonably accessible
because of undue burden or cost. If that showing is
made, the court may nonetheless order discovery from
such sources if the requesting party shows good cause,
considering the limitations of MCR 2.302(C). The court
may specify conditions for the discovery.
 MICHIGAN COURT RULES OF 1985 cxxi

(7) Information Inadvertently Produced. If informa-

tion that is subject to a claim of privilege or of protec-
tion as trial-preparation material is produced in discov-
ery, the party making the claim may notify any party
that received the information of the claim and the basis
for it. After being notified, a party must promptly
return, sequester, or destroy the specified information
and any copies it has and may not use or disclose the
information until the claim is resolved. A receiving
party may promptly present the information to the
court under seal for a determination of the claim. If the
receiving party disclosed the information before being
notified, it must take reasonable steps to retrieve it.
The producing party must preserve the information
until the claim is resolved.
(C)-(H) [Unchanged.]
RULE 2.310 REQUESTS FOR PRODUCTION OF DOCUMENTS AND
OTHER THINGS; ENTRY ON LAND FOR INSPECTION AND OTHER
PURPOSES.
(A)-(B) [Unchanged.]
(C) Request to Party.
(1) The request may, without leave of court, be served
on the plaintiff after commencement of the action and on
the defendant with or after the service of the summons
and complaint on that defendant. The request must list
the items to be inspected, either by individual item or by
category, and describe each item and category with rea-
sonable particularity. The request must specify a reason-
able time, place, and manner of making the inspection and
performing the related acts, as well as the form or forms in
which electronically stored information is to be produced,
subject to objection.
(2) The party on whom the request is served must
serve a written response within 28 days after service of
cxxii 482 MICHIGAN REPORTS

the request, except that a defendant may serve a

response within 42 days after being served with the
summons and complaint. The court may allow a longer
or shorter time. With respect to each item or category,
the response must state that inspection and related
activities will be permitted as requested or that the
request is objected to, in which event the reasons for
objection must be stated. If objection is made to part of
an item or category, the part must be specified. If the
request does not specify the form or forms in which
electronically stored information is to be produced, the
party responding to the request must produce the
information in a form or forms in which the party
ordinarily maintains it, or in a form or forms that is or
are reasonably usable. A party producing electronically
stored information need only produce the same infor-
mation in one form.
(3)-(6) [Unchanged.]
(D) [Unchanged.]
RULE 2.313 FAILURE TO PROVIDE OR TO PERMIT DISCOVERY;
SANCTIONS.
(A)-(D) [Unchanged.]
(E) Absent exceptional circumstances, a court may
not impose sanctions under these rules on a party for
failing to provide electronically stored information lost
as a result of the routine, good-faith operation of an
electronic information system.
RULE 2.401 PRETRIAL PROCEDURES; CONFERENCES; SCHED-
ULING ORDERS.
(A) [Unchanged.]
(B) Early Scheduling Conference and Order.
(1) Early Scheduling Conference. The court may
direct that an early scheduling conference be held. In
 MICHIGAN COURT RULES OF 1985 cxxiii

addition to those considerations enumerated in subrule

(C)(1), during this conference the court should consider:
(a) whether jurisdiction and venue are proper or
whether the case is frivolous,
(b) whether to refer the case to an alternative dispute
resolution procedure under MCR 2.410, and
(c) the complexity of a particular case and enter a
scheduling order setting time limitations for the pro-
cessing of the case and establishing dates when future
actions should begin or be completed in the case., and
(d) discovery, preservation, and claims of privilege of
electronically stored information.
(2) Scheduling Order.
(a) At an early scheduling conference under subrule
(B)(1), a pretrial conference under subrule (C), or at
such other time as the court concludes that such an
order would facilitate the progress of the case, the court
shall establish times for events the court deems appro-
priate, including
(i) the initiation or completion of an ADR process,
(ii) the amendment of pleadings, adding of parties, or
filing of motions,
(iii) the completion of discovery,
(iv) the exchange of witness lists under subrule (I),
and
(v) the scheduling of a pretrial conference, a settle-
ment conference, or trial.
More than one such order may be entered in a case.
(b) The scheduling of events under this subrule shall
take into consideration the nature and complexity of
the case, including the issues involved, the number and
location of parties and potential witnesses, including
cxxiv 482 MICHIGAN REPORTS

experts, the extent of expected and necessary discovery,

and the availability of reasonably certain trial dates.
(c) The scheduling order also may include provisions
concerning discovery of electronically stored informa-
tion, any agreements the parties reach for asserting
claims of privilege or of protection as trial-preparation
material after production, preserving discoverable in-
formation, and the form in which electronically stored
information shall be produced.
(c)(d) Whenever reasonably practical, the scheduling
of events under this subrule shall be made after mean-
ingful consultation with all counsel of record.
(i) If a scheduling order is entered under this subrule
in a manner that does not permit meaningful advance
consultation with counsel, within 14 days after entry of
the order, a party may file and serve a written request
for amendment of the order detailing the reasons why
the order should be amended.
(ii) Upon receiving such a written request, the court
shall reconsider the order in light of the objections
raised by the parties. Whether the reconsideration
occurs at a conference or in some other manner, the
court must either enter a new scheduling order or
notify the parties in writing that the court declines to
amend the order. The court must schedule a conference,
enter the new order, or send the written notice, within
14 days after receiving the request.
(iii) The submission of a request pursuant to this
subrule, or the failure to submit such a request, does
not preclude a party from filing a motion to modify a
scheduling order.
(C)-(I) [Unchanged.]
RULE 2.506 SUBPOENA; ORDER TO ATTEND.
(A) Attendance of Party or Witness.
 MICHIGAN COURT RULES OF 1985 cxxv

(1) The court in which a matter is pending may by

order or subpoena command a party or witness to
appear for the purpose of testifying in open court on a
date and time certain and from time to time and day to
day thereafter until excused by the court, and to pro-
duce notes, records, documents, photographs, or other
portable tangible things as specified.
(2) A subpoena may specify the form or forms in
which electronically stored information is to be pro-
duced, subject to objection. If the subpoena does not so
specify, the person responding to the subpoena must
produce the information in a form or forms in which the
person ordinarily maintains it, or in a form or forms
that are reasonably usable. A person producing elec-
tronically stored information need only produce the
same information in one form.
(3) A person responding to a subpoena need not
provide discovery of electronically stored information
from sources that the person identifies as not reason-
ably accessible because of undue burden or cost. In a
hearing or submission under subrule (H), the person
responding to the subpoena must show that the infor-
mation sought is not reasonably accessible because of
undue burden or cost. If that showing is made, the court
may nonetheless order discovery from such sources if
the requesting party shows good cause, considering the
limitations of MCR 2.302(C). The court may specify
conditions for such discovery.
(2)(4) The court may require a party and a represen-
tative of an insurance carrier for a party with informa-
tion and authority adequate for responsible and effec-
tive participation in settlement discussions to be
present or immediately available at trial.
cxxvi 482 MICHIGAN REPORTS

(3)(5) A subpoena may be issued only in accordance

with this rule or MCR 2.305, 2.621(C), 9.112(D),
9.115(I)(1), or 9.212.
(B)-(I) [Unchanged.]
Staff Comment: These amendments update Michigan’s discovery
rules as they relate to electronically stored information. The provisions of
the proposal at MCR 2.302(B)(6) and MCR 2.506(A)(3) allow the court to
shift the cost of discovery to the requesting party if discovery is requested
from sources that are not reasonably accessible, and prohibit sanctions if
information is lost or destroyed as a result of a good-faith, routine record
destruction policy or “litigation hold” procedures. The “safe harbor”
provision provided in MCR 2.302(B)(5) and in MCR 2.313 applies when
information is lost or destroyed under a routine electronic information
system, if the operation of the system was performed in good faith. Good
faith may be shown by a party’s actions to attempt to preserve informa-
tion as part of a “litigation hold” that would otherwise have been lost or
destroyed under an electronic information system.

The new language of MCR 2.302 and MCR 2.506 also allows parties to
determine the format in which the information should be produced, and
how to handle a situation in which protected information is inadvertently
produced.
The staff comment is not an authoritative construction by the Court.
 AMENDMENT OF THE RULES FOR
THE BOARD OF LAW EXAMINERS

Adopted September September 30, 2008, effective immediately (File

No. 2008-20)—REPORTER.

[The present language is repealed and

replaced by the following language unless
otherwise indicated below:]
On order of the Court, notice of the proposed changes
and an opportunity for comment in writing and at a
public hearing having been provided, and consideration
having been given to the comments received, the fol-
lowing amendment of Rule 6 of the Rules for the Board
of Law Examiners is adopted, effective immediately.

[The present language would be amended as indicated

below:]
RULE 6. FEES.
The fees are: an application for examination, $340
$300 and an additional fee for the late filing of an
application or transfer of an application for examina-
tion, $100; an application for reexaminationre-
examination, $240 $200; an application for recertifica-
tion, $200; an application for admission without
examination, $600 plus the requisite fee for the Na-
tional Conference of Bar Examiners’ report. Checks
must be payable to the State of Michigan.

cxxvii
cxxviii 482 MICHIGAN REPORTS

Staff Comment: The amendment of Rule 6 of the Rules for the Board
of Law Examiners increases the fees for application for the bar exami-
nation from $300 to $340, and for reexamination from $200 to $240. The
increase in fees allows for the implementation of the change in policy
regarding grading Michigan bar examinations that is reflected in the
attached notice.
The staff comment is not an authoritative construction by the Court.
See notice from Board of Law Examiners: Notice
Regarding Changes to the Method of Scoring the Michi-
gan Bar Examination.

* * *
RULES FOR THE BOARD OF LAW EXAMINERS cxxix
SUPREME COURT CASES
2008] PONTIAC FIRE FIGHTERS UNION V PONTIAC 1

PONTIAC FIRE FIGHTERS UNION LOCAL 376 v CITY OF PONTIAC

Docket No. 132916. Argued November 7, 2007 (Calendar No. 6). Decided
July 23, 2008.
The Pontiac Fire Fighters Union Local 376 brought an action in the
Oakland Circuit Court to enjoin the city of Pontiac from imple-
menting its proposed plan to lay off 28 firefighters until the
plaintiff’s unfair labor practice charge against the city was re-
solved. After a show-cause hearing, the court, John J. McDonald,
J., granted a preliminary injunction. The defendant appealed. In a
split decision, the Court of Appeals, COOPER, P.J., and SMOLENSKI, J.,
held that the trial court did not abuse its discretion by granting the
injunction and did not err by finding that the plaintiff demon-
strated a likelihood of success on the merits and that there was a
real and imminent danger of irreparable harm. HOEKSTRA, J.,
dissenting, would have held that the trial court abused its discre-
tion because the plaintiff did not meet its burden of demonstrating
irreparable harm because the record did not support the conclu-
sion that the layoffs would jeopardize firefighter safety, and
further noted that injunctive relief is inappropriate to remedy
economic injuries. Unpublished opinion of the Court of Appeals,
issued November 30, 2006 (Docket No. 271497). The defendant
applied for leave to appeal, which the Supreme Court granted. 478
Mich 903 (2007).
In an opinion by Justice YOUNG, joined by Chief Justice TAYLOR
and Justices CORRIGAN and MARKMAN, the Supreme Court held:
The circuit court abused its discretion by granting injunctive
relief. The plaintiff failed to meet its burden of establishing that
irreparable harm without an adequate remedy at law would result
if the injunction did not issue, and even if the plaintiff had satisfied
its initial burden, it failed to carry its burden in light of the
defendant’s contrary proffered evidence relating to staffing and
safety protocols.
1. The circuit court erred by basing its decision to grant
injunctive relief on its belief that the layoffs would inflict financial
hardship on the laid-off firefighters. This alleged injury is not
irreparable and not a proper subject of injunctive relief because it
can be adequately remedied by damages at law.
2 482 MICH 1 [July

2. A mere apprehension of reduced safety by the plaintiff is

insufficient grounds for a court to grant equitable relief. The plaintiff
bears the responsibility of submitting sufficiently persuasive evidence
that particular, irreparable harm will result if an injunction does not
issue. In this case, the plaintiff did not establish that the firefighters
remaining after the proposed layoffs would face real and imminent
danger resulting from the layoffs, and the defendant submitted
contrary evidence relating to staffing and safety protocols that
specifically refuted the plaintiff’s allegations.
Reversed; preliminary injunction vacated.
Justice KELLY, joined by Justices CAVANAGH and WEAVER, dissent-
ing, would hold that the circuit court did not abuse its discretion to
the extent that it granted injunctive relief on the basis of the
plaintiff’s unrebutted allegation that the proposed layoffs would
result in longer response times to fires and, therefore, more
dangerous fires for the remaining firefighters.

1. INJUNCTIONS — FIREFIGHTERS — LABOR RELATIONS — PROPOSED LAYOFFS —

FINANCIAL HARDSHIP.
Financial hardship to firefighters is not a proper basis for granting
injunctive relief against a proposed layoff of firefighters because the
harm is not irreparable and can be adequately remedied by damages
at law.

2. INJUNCTIONS — FIREFIGHTERS — LABOR RELATIONS — PROPOSED LAYOFFS —

SAFETY.
A mere apprehension that a proposed reduction in firefighting staff
will result in reduced safety for those remaining is insufficient
grounds for a court to grant injunctive relief; a plaintiff must make
a particularized showing that there exists a real and imminent
danger of irreparable harm if an injunction does not issue.

Gregory, Moore, Jeakle, Heinen & Brooks, P.C. (by

Gordon A. Gregory and Emilie D. Rothgery), for the
Pontiac Fire Fighters Union Local 376.

Keller Thoma, P.C. (by Bruce M. Bagdady and Jona-

thon A. Rabin), for the city of Pontiac.
Amici Curiae:

Dykema Gossett PLLC (by John A. Entenman, Melvin

J. Muskovitz, and F. Arthur Jones II) for the Michigan
Municipal League and the Michigan Association of Coun-
ties.
2008] PONTIAC FIRE FIGHTERS UNION V PONTIAC 3
OPINION OF THE COURT

Woodley & McGillivary (by Thomas A. Woodley and

Bryan G. Polisuk) for the International Association of
Fire Fighters and the Michigan Professional Fire Fight-
ers Union.

Sachs Waldman, Professional Corporation (by Mary

Ellen Gurewitz), for the Michigan State AFL-CIO.

YOUNG, J. The issue in this case is whether the circuit

court abused its discretion when it issued a preliminary
injunction preventing defendant city of Pontiac from
implementing its plan to reduce a budget shortfall by
laying off members of plaintiff Pontiac Fire Fighters
Union Local 376. We hold that the circuit court abused its
discretion. Plaintiff failed to meet its burden of establish-
ing that irreparable harm would result if the injunction
did not issue, and even supposing plaintiff satisfied its
initial burden, it failed to carry its burden in light of
defendant’s contrary proffered evidence. Accordingly, we
reverse the Court of Appeals and vacate the circuit court
order granting the preliminary injunction.

FACTS AND PROCEDURAL HISTORY

Plaintiff and defendant are parties to a collective

bargaining agreement (CBA) that was in effect from
June 1, 2002, to June 30, 2004. Although the parties did
not agree to a new CBA when that agreement expired,
the existing agreement continued to govern the parties’
relationship after June 30, 2004, because under its own
terms the agreement was automatically extended until
a new contract was negotiated or ordered.1
1
Article VII, Section 12 of the CBA provided: “This Agreement shall
remain in full force and effect from July 1, 2002 through June 30, 2004,
and it shall be extended automatically thereafter on a daily basis until a
new contract is negotiated or ordered.”
4 482 MICH 1 [July
OPINION OF THE COURT

In 2005 and 2006, defendant faced serious budget

shortfalls that it sought to address in part by laying off
28 firefighters. Plaintiff maintained that the layoff plan
and the manner in which defendant intended to imple-
ment it violated the terms of the CBA2 and constituted
an unfair labor practice.
On June 16, 2006, plaintiff filed a verified com-
plaint in the Oakland Circuit Court seeking a prelimi-
nary injunction against defendant’s proposed layoffs
pending the resolution of an unfair labor practice
charge, collective bargaining, or interest arbitration.3
Several days earlier, plaintiff had filed an unfair labor
practice charge against defendant with the Michigan
Employment Relations Commission (MERC). The veri-
fied complaint alleged that the proposed layoffs would
necessitate a dramatic reorganization of the fire depart-
ment and that this reorganization threatened fire-
fighter safety. Specifically, plaintiff alleged that the
layoffs would increase response time to a fire emer-
gency, which would allegedly allow fires to escalate,
making them more difficult and more dangerous to
extinguish. Moreover, plaintiff claimed that this prob-
lem would be compounded by the smaller number of
firefighters present at the scene of a fire.
2
Plaintiff relied on Article IX, Section 7.D.4 of the CBA, which
provided in pertinent part that “[d]uring the duration of the Agreement,
there will be no layoff of bargaining unit personnel . . . .” Defendant
relied on other portions of the CBA that seemed to presume that
defendant could lay off union members. For instance, Article IX, Section
9 set forth advance notice requirements for layoffs such as “[i]f workers
are to be laid off, a fourteen (14) day notice shall be given of the date
when their services shall no longer be required.”
3
The complaint alleged four counts: (1) breach of the CBA; (2) unfair
labor practice for failure to bargain under the public employment
relations act (PERA); (3) city charter violation; and (4) health and safety
violation.
2008] PONTIAC FIRE FIGHTERS UNION V PONTIAC 5
OPINION OF THE COURT

The circuit court ordered defendant to show cause why

the injunction should not be granted. On June 28, 2006,
the court conducted a hearing on the preliminary injunc-
tion. However, the court took no witness testimony at the
hearing. Plaintiff relied on the assertions in its verified
complaint, and defendant submitted several affidavits to
counter plaintiff’s allegations. One affidavit particularly
pertinent to this case was submitted by the chief of the
Pontiac Fire Department, Wilburt McAdams.
In his affidavit, McAdams addressed many of plain-
tiff’s allegations that the proposed layoffs threatened
firefighter safety. The affidavit noted that the “great
majority” of calls received by the fire department are
medical runs rather than fire runs. McAdams con-
tended that minimum staffing levels would be main-
tained at all times and that in the event staffing reached
critically low levels, firefighters would only respond to
fires and not medical runs, which would be handled by
private ambulance services.
McAdams further averred that firefighter safety at
the site of a fire would not be jeopardized by the layoffs.
The department’s remaining 89 firefighters would con-
tinue to adhere to basic safety protocols such as the
“incident command system”4 and the “two in, two out”
rule.5 Moreover, the affidavit asserted that the number
of firefighters at the scene of a fire would be unaffected.
McAdams claimed that the number of firefighters on
each rig would actually increase from three or four to
four firefighters. Finally, McAdams averred that the fire
4
According to the affidavit, the incident command system prohibits a
firefighter from entering a burning structure unless, after a careful
assessment of the fire, an incident commander permits entry.
5
According to the affidavit, under this rule, a firefighter cannot enter
a structure that is on fire without being accompanied by another
firefighter and two firefighters remain stationed outside the structure.
6 482 MICH 1 [July
OPINION OF THE COURT

department would continue to follow all state and local

workplace safety rules and regulations and it would
continue to participate in mutual aid programs where
nearby communities would lend their firefighters if
assistance were required.
In a written opinion issued on June 30, 2006, the
circuit court granted the preliminary injunction after
ruling that plaintiff satisfied the four traditional ele-
ments for injunctive relief.6 The court found that both
the laid-off firefighters and those who would remain
faced a threat of significant, irreparable harm in the
absence of injunctive relief. With respect to the laid-off
firefighters, the court found that they would “los[e]
their jobs, salary and benefits and create a current
hardship that cannot be compensated even if a subse-
quent arbitration decision would award those laid off a
reinstatement of their positions and back wages.” As to
the remaining firefighters, the court found that they
may be irreparably harmed since a reduction in the work-
force and the closing of several City fire stations would
result in a significant increased risk of harm for the
remaining firefighters. Fewer firefighters would be avail-
able to respond to fires and the closing of stations caused by
the [layoff] would result in the firefighters having to cover

6
In Michigan Coalition of State Employees Unions v Civil Service
Comm, 465 Mich 212, 225 n 11; 634 NW2d 692 (2001), this Court noted
that besides the demonstration of irreparable harm, the three additional
factors in a preliminary injunction analysis are (1) whether harm to the
applicant absent such an injunction outweighs the harm it would cause to
the adverse party, (2) the strength of the moving party’s showing that it
is likely to prevail on the merits, and (3) harm to the public interest if an
injunction is issued.
With respect to these three remaining factors, the circuit court in the
present case concluded (1) that the balance of harm favored plaintiff
notwithstanding defendant’s financial difficulties, (2) that plaintiff dem-
onstrated a substantial likelihood of success on the merits, and (3) that
the public faced less harm if the injunction issued than if it did not.
2008] PONTIAC FIRE FIGHTERS UNION V PONTIAC 7
OPINION OF THE COURT

a larger territory. The remaining firefighters would thus

not be able to respond as quickly as they used to[,] which
means that they would be faced with fires that have
increased in intensity or size and as a result are more
dangerous.

Defendant appealed the circuit court’s order to the

Court of Appeals, which upheld the preliminary injunc-
tion in a split, unpublished decision.7 The majority held
that the trial court did not abuse its discretion when it
granted the injunction, particularly its findings that
plaintiff would suffer irreparable harm and that plain-
tiff demonstrated a likelihood of success on the merits.
The dissenting member of the panel argued that the
trial court abused its discretion because plaintiff did not
meet its burden of demonstrating irreparable harm.
With respect to the laid-off firefighters, the dissent
noted that injunctive relief was inappropriate to remedy
economic injuries. With respect to the remaining fire-
fighters, the dissent observed that in view of defen-
dant’s proffered evidence that the layoffs would not
jeopardize firefighter safety, the record did not support
the trial court’s conclusion to the contrary.
Defendant filed an application with this Court seek-
ing leave to appeal, which we granted.8
7
Pontiac Fire Fighters Union Local 376 v City of Pontiac, unpublished
opinion per curiam of the Court of Appeals, issued November 30, 2006
(Docket No. 271497).
8
478 Mich 903 (2007). The grant order asked the parties to address

(1) whether the circuit court had jurisdiction to grant a prelimi-

nary injunction with respect to the breach of contract claim (count
I) and the unfair labor practice claim (count II), and (2) if the
circuit court had jurisdiction: (a) whether it abused its discretion
in issuing an injunction to prevent layoffs based on alleged
irreparable harm to the laid-off employees; (b) whether the plain-
tiff presented sufficient evidence to support its claim of an in-
creased risk of harm to the firefighters who would not be laid off;
8 482 MICH 1 [July
OPINION OF THE COURT
STANDARD OF REVIEW

We review a trial court’s decision to grant injunctive

relief for an abuse of discretion.9 We have recently
offered the following articulation of the abuse of discre-
tion standard. There are circumstances where a trial
court must decide a matter and there will be no single
correct outcome; rather, there may be more than one
reasonable and principled outcome.10 The trial court
abuses its discretion when its decision falls outside this
range of principled outcomes.11

ANALYSIS

The Court of Appeals has succinctly stated that

“ ‘[i]njunctive relief is an extraordinary remedy that
issues only when justice requires, there is no adequate
remedy at law, and there exists a real and imminent
danger of irreparable injury.’ ”12 In the context of labor
disputes, this Court has observed that “it is basically
contrary to public policy in this State to issue injunc-
tions in labor disputes absent a showing of violence,
irreparable injury, or breach of the peace.”13 This Court
and (c) whether the plaintiff is likely to prevail on its breach of
contract and unfair labor practice claims.
With respect to the first question in our grant order, we agree with the
parties that the trial court has jurisdiction to issue an injunction in aid of
MERC’s jurisdiction to decide unfair labor practice charges. MCL
423.216(h).
9
Michigan Coalition, 465 Mich at 217.
10
Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809
(2006).
11
Id.
12
Kernen v Homestead Dev Co, 232 Mich App 503, 509; 591 NW2d 369
(1998), quoting Jeffrey v Clinton Twp, 195 Mich App 260, 263-264; 489
NW2d 211 (1992).
13
Holland School Dist v Holland Ed Ass’n, 380 Mich 314, 326; 157
NW2d 206 (1968).
2008] PONTIAC FIRE FIGHTERS UNION V PONTIAC 9
OPINION OF THE COURT

recently reiterated the longstanding principle that “a

particularized showing of irreparable harm . . . is . . . an
indispensable requirement to obtain a preliminary injunc-
tion.”14 The mere apprehension of future injury or
damage cannot be the basis for injunctive relief.15
Equally important is that a preliminary injunction
should not issue where an adequate legal remedy is
available.16
MCR 3.310 governs the procedure for issuing a prelimi-
nary injunction. According to MCR 3.310(A)(1), unless
otherwise provided by statute or court rule, an injunction
may not be granted without a hearing. At this hearing,
“the party seeking injunctive relief has the burden of
establishing that a preliminary injunction should be is-
sued . . . .”17 If a court grants preliminary injunctive
relief, a trial on the merits must be held within six
months of the injunction issuing, except for good cause
or a stipulation from the parties to extend the time.18
Given the extraordinary nature of injunctive relief, our
court rules contemplate expeditious resolution of the
underlying claim or claims once a preliminary injunc-
tion issues.
With these general precepts in mind, we must con-
sider whether the circuit court abused its discretion
14
Michigan Coalition, 465 Mich at 225-226.
15
Fenestra Inc v Gulf American Land Corp, 377 Mich 565, 601-602; 141
NW2d 36 (1966); Dunlap v City of Southfield, 54 Mich App 398, 403; 221
NW2d 237 (1974) (“[I]t is well settled that an injunction will not lie upon
the mere apprehension of future injury or where the threatened injury is
speculative or conjectural.”). See also Royal Oak School Dist v State
Tenure Comm, 367 Mich 689, 693; 117 NW2d 181 (1962) (injunctive relief
inappropriate where there is no proof that the party would suffer
irreparable injury).
16
Grand Rapids Electric R Co v Calhoun Circuit Judge, 156 Mich 419,
422; 120 NW 1004 (1909).
17
MCR 3.310(A)(4).
18
MCR 3.310(A)(5).
10 482 MICH 1 [July
OPINION OF THE COURT

when it granted plaintiff’s motion for preliminary in-

junction. The first half of the circuit court’s irreparable-
harm analysis centered on its belief that the layoffs
would inflict considerable financial hardship on the
laid-off firefighters. We agree with the Court of Appeals
dissent that this alleged injury is not irreparable and
not the proper subject of injunctive relief. There exists
an adequate legal remedy for laid-off firefighters. If the
layoffs violated the CBA or constituted an unfair labor
practice, MERC or a grievance arbitrator can award
back pay, order reinstatement, or provide another rem-
edy to make the laid-off firefighters whole.19 Granting
extraordinary equitable relief to remedy these economic
injuries is unnecessary and inappropriate because they
can be remedied by damages at law.20
In the second half of its irreparable-harm analysis,
the circuit court found that the layoffs would deplete
the number of available firefighters, which would in-
crease the remaining firefighters’ workload and
lengthen their response time, which in turn would
require firefighters to fight larger, more intense, and
more dangerous fires. Thus, firefighter safety would be
jeopardized. To support this chain of logic, the circuit
court appeared to adopt without reservation plaintiff’s
factual assertions.
19
See, e.g., MCL 423.216(b).
20
Thermatool Corp v Borzym, 227 Mich App 366, 377; 575 NW2d 334
(1998). Plaintiff relies on this Court’s dictum in Michigan State Employ-
ees Ass’n v Dep’t of Mental Health, 421 Mich 152, 168; 365 NW2d 93
(1984), that “[w]e do not hold that the absence of usable resources and of
obtainable alternative sources of income with which to support one’s self
and one’s dependents, coupled with the prospect of destitution, serious
physical harm, or loss of irreplaceable treasured possessions, could never
support a finding of irreparable injury in an appropriate case.” We doubt
whether the Michigan State Employees Ass’n Court was correct that this
is an adequate basis to support a finding of irreparable injury, but, in any
event, the record in this case does not support plaintiff’s reliance on it.
2008] PONTIAC FIRE FIGHTERS UNION V PONTIAC 11
OPINION OF THE COURT

However, while plaintiff’s argument that staffing

decisions might affect firefighter safety is appealing as a
general proposition, upon closer scrutiny, plaintiff al-
leged nothing more than an apprehension of future
injury or damage. Indeed, the circuit court could only
speculate that the firefighters “may” have been irrepa-
rably harmed by the layoffs. Neither plaintiff nor the
circuit court detailed how the remaining firefighters
faced real and imminent danger from the layoffs rather
than future, speculative harm. Under established prin-
ciples governing injunctive relief, plaintiff’s verified
complaint, standing alone, failed to make a particular-
ized showing of irreparable harm. Thus, plaintiff failed
to carry its burden of proof from the outset.
In reaching this conclusion, we do not trivialize the
dangers accompanying firefighting. However, because
firefighting is a dangerous job, every managerial deci-
sion in the abstract might touch on a safety issue. A
mere apprehension of reduced safety by the union is
insufficient grounds for a court to grant equitable relief.
Otherwise, the extraordinary nature of a preliminary
injunction would be trivialized. Plaintiff bears the re-
sponsibility of submitting sufficiently persuasive evi-
dence that particular, irreparable harm will result if an
injunction does not issue.
Further, even if we assumed arguendo that plaintiff
initially succeeded in demonstrating particularized, ir-
reparable harm, it failed to carry its burden of proof in
the face of contrary evidence submitted by defendant
that specifically refuted plaintiff’s allegations. For in-
stance, in response to plaintiff’s allegation that the
number of firefighter personnel at a fire scene would be
limited and reduced to unsafe levels, Fire Chief McAd-
ams stated that the number of firefighters present at a
fire would not be reduced by the layoffs and that the
12 482 MICH 1 [July
OPINION OF THE COURT

number of firefighters in each rig would increase from

three or four to four. And McAdams averred that
additional, outside support was available, if needed. For
instance, because the “great majority” of calls to which
the fire department responded were medical runs, pri-
vate ambulance services, rather than firefighters,
would be used to respond to those calls if the depart-
ment was functioning at its minimum daily staffing
level. Thus, the firefighters would remain available to
fight fires. Also, because the department participated in
mutual aid programs with the fire departments of
neighboring communities, additional firefighters from
other communities could be called on for assistance.
Moreover, safety protocols, such as the “two in, two
out” rule and the incident command system, would
remain in place at the scene of every fire. Defendant
submitted evidence that it would maintain the same
number of firefighters at the scene of a fire, would
retain existing policies to protect the health and safety
of firefighters, and would use outside resources to
ensure that a minimally staffed fire department did not
overburden firefighters with medical runs at the ex-
pense of fighting fires. Simply put, plaintiff’s nonspe-
cific allegations of irreparable harm were refuted by the
more specific, sworn statements in Fire Chief McAd-
ams’s affidavit.
In the face of this conflicting evidence that blunted
the force of plaintiff’s safety allegations, it behooved
plaintiff to do more than rely on its initial factual
allegations. Plaintiff did not do so. Thus, for this
additional reason, it failed to carry its burden of dem-
onstrating irreparable harm under MCR 3.310(A).
We are not second-guessing the circuit court’s discre-
tion to substitute the outcome we prefer. For reasons
that are unclear, the circuit court in its written opinion
2008] PONTIAC FIRE FIGHTERS UNION V PONTIAC 13
DISSENTING OPINION BY KELLY, J.

granting the preliminary injunction seemed to credit

only plaintiff’s allegations and did not at all consider
defendant’s contrary evidence. Plaintiff failed to carry
its burden of proof to make a particularized showing of
irreparable harm and also failed to maintain this show-
ing in the face of defendant’s contrary evidence. A grant
of a preliminary injunction under these circumstances
falls outside the principled range of outcomes. Thus, the
circuit court abused its discretion when it granted the
injunction. Accordingly, we reverse the Court of Appeals
and vacate the circuit court order.21
Reversed; preliminary injunction vacated.

TAYLOR, C.J., and CORRIGAN and MARKMAN, JJ., con-

curred with YOUNG, J.

KELLY, J. (dissenting). I disagree with the majority’s

conclusion that the Pontiac Fire Fighters Union failed
to meet its burden of showing that the proposed layoff
of 28 firefighters would cause irreparable harm to the
remaining firefighters.1 The union alleged that the
layoffs would lead to the closing of fire stations and
would lengthen the time for responding to fires. The
21
The trial court ruled, and the Court of Appeals majority agreed, that
plaintiff demonstrated a likelihood of success on the merits of its
underlying claims. Because plaintiff failed to prove that it would suffer
irreparable harm from the layoffs, we take no position on whether
plaintiffs could successfully prove a breach of the CBA or an unfair labor
practice.
1
The union had filed an unfair labor practice charge against defendant
with the Michigan Employment Relations Commission (MERC). It re-
quested an injunction from the circuit court “pending resolution of the
parties’ dispute by MERC.” It also asked for and received from the court
an injunction to maintain the status quo pending compulsory arbitration
under Act 312, MCL 423.231 et seq. But no Act 312 arbitration was
actually pending when the circuit court issued the injunction. The
injunction was properly issued in aid of MERC’s jurisdiction over the
unfair labor practice charge.
14 482 MICH 1 [July
DISSENTING OPINION BY KELLY, J.

firefighters would travel longer distances to reach fires

and would encounter longer-burning, and therefore
more dangerous, fires. The fire chief’s affidavit on
behalf of the city did not rebut this allegation. To the
extent that it granted injunctive relief on the basis of
this unchallenged allegation, the circuit court did not
abuse its discretion.2
The union alleged in counts 9, 24, and 25 of the
verified complaint that the layoffs would affect fire-
fighter safety:
9. Plaintiff is informed and believes that if the unilat-
eral layoff decision is implemented, the Pontiac Fire De-
partment will undergo substantial adverse reorganization
which will include the closing of fire stations, the reduction
of staffing on fire apparatus, the elimination of EMS-ALS
rescue units, the realignment and expansion of fire terri-
tories, the elimination of mutual aid participation for
hazardous materials and technical rescue responses, and
other unilateral changes many of which will constitute
violations of the Agreement in such matters as staffing,
reduction of personnel on vacation, and use of Kelly days.

* * *

24. The layoff of 28 fire fighters and fire fighter para-

medics will reduce the fire extinguishment and
medical/rescue capability of the Fire Department to unac-
ceptable levels posing a threat and hazard to fire fighters
and citizens alike.
25. The reorganization of the Fire Department, the
substantial reduction of personnel, and the closing of fire
stations will increase response time to a fire scene and/or
medical/rescue run. Increased response time of emergency

2
MCR 3.310(A)(4) states that “[a]t the hearing on an order to show
cause why a preliminary injunction should not issue, the party seeking
injunctive relief has the burden of establishing that a preliminary
injunction should be issued . . . .”
2008] PONTIAC FIRE FIGHTERS UNION V PONTIAC 15
DISSENTING OPINION BY KELLY, J.

equipment poses a hazard to responding fire fighters and

citizens on the route. As a consequence of delay in respond-
ing to a fire scene, the fire escalates making extinguish-
ment more difficult and increasing the danger to fire
fighters and possibly occupants of a dwelling. The number
of personnel at a fire scene will be limited and reduced to
unsafe levels.

The city countered these allegations with an affidavit

from Fire Chief Wilburt McAdams, which stated in
relevant part:
2. That the great majority of calls to which the depart-
ment responds are medical runs.
3. That the department will continue to maintain mini-
mum staffing levels. In the event the department is at the
minimum level of seventeen firefighters on a given day,
private ambulance services will be used to respond to
medical runs, and the City’s firefighters will be used solely
for fighting fires.
4. That, even after the layoff of the 28 firefighters, the
department will have 89 firefighters, and will continue to
operate utilizing both an incident command system and the
“two in two out” rule which forbids any firefighter from
entering a structure fire unless he/she is accompanied by
another firefighter and there are two firefighters outside
the structure. In addition, the department will continue to
assign a safety officer to each fire. The number of firefight-
ers at a fire scene will not be impacted.
5. Using the incident command system, firefighters will
not enter a burning structure until there has been a careful
assessment of the fire and the incident commander allows
entry.
4. [sic] That, in addition, the department will continue
to be in compliance with all applicable departmental rules
and regulations of the City of Pontiac and State of Michi-
gan, including all OSHA regulations. The statements of the
NFPA are not binding rules and have not been adopted in
Michigan.
16 482 MICH 1 [July
DISSENTING OPINION BY KELLY, J.

5. [sic] The number of firefighters per rig will actually

increase from 3-4 currently to 4 for all engines. In addition,
the department will continue to participate in mutual aid,
under which firefighters from other departments . . . can
be called for assistance if needed.

The union’s complaint alleged both that fewer

firefighters would be available to fight fires and that
their response time would be increased. The fire chief
averred that the number of firefighters available to
fight fires would remain the same, and so would the
safety rules. However, the fire chief did not offer a
solution to the problem of increased response time.
Nor did he explain how existing safety rules would
protect the firefighters who would confront more
intense fires.
The circuit court issued a preliminary injunction
specifically on the basis of the union’s allegation that
the closing of fire stations would affect the remaining
fire stations’ response time:
. . . Plaintiff may be irreparably harmed since a reduc-
tion in the workforce and the closing of several City fire
stations would result in a significant increased risk of harm
for the remaining firefighters. Fewer fire fighters [sic]
would be available to respond to fires and the closing of
stations caused by the lay off would result in the firefight-
ers having to cover a larger territory. The remaining
firefighters would thus not be able to respond as quickly as
they used to which means that they would be faced with
fires that have increased in intensity or size and as a result
are more dangerous.

The majority faults the circuit court for not consid-

ering the fire chief’s affidavit, and it faults the union for
not offering additional evidence in response to the
affidavit. At the show-cause hearing, the union did offer
to present additional testimony and diagrams of the
2008] PONTIAC FIRE FIGHTERS UNION V PONTIAC 17
DISSENTING OPINION BY KELLY, J.

runs.3 Thus, the union cannot be faulted for failing to

present additional evidence. The majority’s conclusion
that the circuit court failed to consider the fire chief’s
affidavit is also unpersuasive. Rather, the union met its
burden of proof through the unchallenged allegations in
its complaint. To the extent that the circuit court based
its order on these unchallenged allegations, it did not
need to address the fire chief’s other averments.
The circuit court did not abuse its discretion in
concluding that irreparable harm to the remaining
firefighters called for injunctive relief.4 I would affirm
the judgment of the Court of Appeals and the prelimi-
nary injunction.

WEAVER and CAVANAGH, JJ., concurred with KELLY, J.

3
In deciding not to take testimony, the circuit court followed Campau
v McMath, 185 Mich App 724, 728; 463 NW2d 186 (1990). In that and
other cases, the Court of Appeals held that an evidentiary hearing was
not required for issuing an injunction. See also Fancy v Egrin, 177 Mich
App 714, 722; 442 NW2d 765 (1989).
4
The court additionally concluded that the union was likely to succeed
on the merits because the parties’ contract clearly prohibited layoffs and
was in effect until a new contract was negotiated. The city could not use
financial hardship as an excuse to violate the contract it had negotiated
with the union. The Court of Appeals affirmed this conclusion.
18 482 MICH 18 [July

DETROIT FIRE FIGHTERS ASSOCIATION, IAFF LOCAL 344 v

CITY OF DETROIT

Docket No. 131463. Argued November 7, 2007 (Calendar No. 7). Decided
July 23, 2008.
The Detroit Fire Fighters Association, IAFF Local 344, brought an
action for injunctive and declaratory relief in the Wayne Circuit Court
after the city of Detroit announced, while compulsory arbitration was
proceeding, a proposal for layoffs within and restructuring of the fire
department. The court, Susan D. Borman, J., temporarily enjoined
the city from implementing its proposal and referred the safety
dispute to the arbitrator assigned to the compulsory arbitration case.
The arbitrator, asserting a lack of jurisdiction, declined to decide
whether the proposal would affect the safety of the remaining
firefighters. Thereafter, the trial court concluded that the proposal
raised factual questions relating to firefighter safety and may have
implicated mandatory subjects of bargaining under the public em-
ployment relations act (PERA), MCL 423.201 et seq. Accordingly, the
court enjoined the defendant from implementing its proposal before
the arbitration proceedings were complete. The defendant appealed.
The Court of Appeals, SCHUETTE, P.J., and BANDSTRA and COOPER, JJ.,
held that the trial court did not abuse its discretion in granting the
injunction because, while layoff decisions themselves are not a
mandatory subject of bargaining, the impact of the layoff decision is
a mandatory subject of bargaining to the extent the layoffs relate to
workload and safety. 271 Mich App 457 (2006). The defendant applied
for leave to appeal, which the Supreme Court granted. 477 Mich 927
(2006). Following oral arguments, the Supreme Court ordered
supplemental briefing, and then ordered reargument. 480 Mich 880
(2007).
In an opinion by Justice YOUNG, joined by Chief Justice TAYLOR
and Justices WEAVER, CORRIGAN, and MARKMAN, the Supreme Court
held:
The circuit court erred when it issued the preliminary injunc-
tion preventing the implementation of the restructuring plan. The
circuit court issued what amounted to a permanent injunction
where the underlying merits of the alleged status quo violation
would never be resolved, contrary to the requirements of MCR
2008] DETROIT FIRE FIGHTERS ASS’N V DETROIT 19

3.310(A)(5). Where an employer’s challenged action allegedly

jeopardizes police or firefighter safety, it alters the status quo
during the pendency of arbitration under 1969 PA 312 (Act 312),
MCL 423.243, only if the action is inextricably intertwined with
safety, and not merely arguably affects safety. Contrary to the
holding in Detroit Police Officers Ass’n v Detroit, 142 Mich App 248
(1985), which is now overruled, a party claiming a violation of the
status quo provision of Act 312 that petitions the circuit court for
a preliminary injunction pending the resolution of the merits of
the underlying status quo claim must meet the traditionally
applicable standards for injunctive relief. If injunctive relief is
granted, the court must decide the merits of the status quo claim
within six months after the injunction is granted unless good cause
is shown or the parties stipulate to a longer period.
1. The status quo provision of Act 312 prohibits both parties
from changing, without consent, existing wages, hours, and other
conditions of employment during Act 312 arbitration.
2. A union alleging that an employer’s action will alter safety
conditions, a mandatory subject of bargaining, during Act 312
arbitration in violation of the status quo provision must demon-
strate that the employer’s action is inextricably intertwined with
safety, and not merely that it arguably affects safety. In the present
case, the circuit court found only that the defendant’s plan may
have implicated safety and it never conclusively determined that
the plan unlawfully altered the status quo because the plan
actually affected firefighter safety. Accordingly, the circuit court
erred in granting what was, in practice, a permanent injunction
without resolving the merits of the alleged status quo violation.
3. A party seeking a preliminary injunction to prevent an alleged
status quo violation must satisfy a two-step process. First, it must
meet the traditional four-element test for preliminary injunction,
under which a court must consider whether the moving party made
the required showing of irreparable harm, whether harm to the
applicant absent an injunction outweighs the harm it would cause to
the adverse party, whether the moving party demonstrated that the
underlying claim is likely to succeed on the merits, and whether the
public interest will be harmed if an injunction is issued. Second, if the
court determines that injunctive relief is warranted, it must promptly
decide the merits of the status quo claim pursuant to MCR
3.310(A)(5), which requires the trial of the action on the merits to be
held within six months after the injunction is granted, unless good
cause is shown or the parties stipulate to a longer period.
Justice CAVANAGH concurred in the result only.
Reversed; injunction vacated; case remanded to the circuit
court for further proceedings.
20 482 MICH 18 [July

Justice KELLY, concurring in part and dissenting in part, agreed

that the case should be remanded for a clear determination of
whether a status quo violation occurred, but would not require the
union to show irreparable harm, which should be presumed in
light of the policy decision the Legislature made when it enacted
Act 312 that any remedy other than an injunction would be
inadequate. Because this Court should not impose policy choices
that differ from those selected by the Legislature, Detroit Police
Officers Ass’n v Detroit should not be overruled.

1. LABOR RELATIONS — POLICE AND FIRE DEPARTMENTS — STATUS QUO VIOLA-

TIONS IN COMPULSORY ARBITRATION — SAFETY.

An action that affects safety, which is a mandatory subject of bargaining

and “condition of employment,” may not be undertaken during the
pendency of compulsory arbitration of a labor dispute in a municipal
police or fire department without violating the status quo provision of
the compulsory arbitration statute (MCL 423.243).

2. LABOR RELATIONS — POLICE AND FIRE DEPARTMENTS — STATUS QUO VIOLA-

TIONS IN COMPULSORY ARBITRATION — SAFETY — STANDARDS FOR DETER-
MINING STATUS QUO VIOLATIONS.

A claim that an employer’s action jeopardizes the safety of police or

firefighters in violation of the status quo provision of the compul-
sory arbitration statute can be established only by demonstrating
that the action is inextricably intertwined with safety, and not
merely that it arguably affects safety (MCL 423.243).

3. LABOR RELATIONS — POLICE AND FIRE DEPARTMENTS — STATUS QUO VIOLA-

TIONS IN COMPULSORY ARBITRATION — INJUNCTIONS — STANDARDS FOR
INJUNCTIVE RELIEF.
When determining whether to grant preliminary injunctive relief
where a party alleges a status quo violation during the compulsory
arbitration of a labor dispute in a municipal police or fire department,
a court must consider whether the moving party made the required
showing of irreparable harm, whether harm to the applicant absent
an injunction outweighs the harm it would cause to the adverse party,
whether the moving party demonstrated that the underlying claim is
likely to succeed on the merits, and whether the public interest will be
harmed if an injunction is issued (MCL 423.231 et seq.).

4. LABOR RELATIONS — POLICE AND FIRE DEPARTMENTS — STATUS QUO VIOLA-

TIONS IN COMPULSORY ARBITRATION — RULINGS ON THE MERITS OF STATUS
QUO VIOLATION CLAIMS.
If a court grants preliminary injunctive relief where there is an
alleged status quo violation, the court must then decide the merits
of the status quo claim within six months after the injunction is
2008] DETROIT FIRE FIGHTERS ASS’N V DETROIT 21
OPINION OF THE COURT
granted unless good cause is shown or the parties stipulate to a
longer period (MCL 423.231 et seq.; MCR 3.310[A][5]).

Helveston & Helveston, P.C. (by Ronald R. Helveston

and Mindy M. Schwartz) for the Detroit Fire Fighters
Association.

Bruce A. Campbell for the city of Detroit.

Amici Curiae:

Michael A. Cox, Attorney General, Thomas L. Casey,

Solicitor General, and Richard P. Gartner, Assistant
Attorney General, for the Michigan Employment Rela-
tions Commission.

Dykema Gossett PLLC (by John A. Entenman, Melvin

J. Muskovitz, and F. Arthur Jones II) for the Michigan
Municipal League.

Nantz, Litowich, Smith, Firard & Hamilton (by John

H. Gretzinger) for the city of Iron Mountain.

YOUNG, J. At issue in this public labor law dispute

between plaintiff Detroit Fire Fighters Association and
defendant city of Detroit is whether the circuit court
properly issued a preliminary injunction to prevent the
implementation of defendant’s proposed layoff and re-
structuring plan where plaintiff contends that the plan
violates the “status quo” provision of 1969 PA 312 (Act
312), MCL 423.243, by, among other things, jeopardiz-
ing the safety of the remaining firefighters. We conclude
that the injunction was erroneously entered.
Where a party seeks a preliminary injunction to
prevent an alleged status quo violation, a two-step
process is required. First, the moving party must satisfy
the traditional four-part test that is prerequisite for
issuance of any preliminary injunction. Second, if the
22 482 MICH 18 [July
OPINION OF THE COURT

conditions of the preliminary injunction test are met and

the injunction is granted, the circuit court must promptly
resolve the merits of the status quo claim. Pursuant to
MCR 3.310(A)(5), if a preliminary injunction is granted, a
“trial of the action on the merits must be held within 6
months after the injunction is granted, unless good cause
is shown or the parties stipulate to a longer period.”
The status quo provision of Act 312 prevents either
party from altering, without consent, “existing wages,
hours, or other conditions of employment,” which con-
cern mandatory subjects of bargaining, while Act 312
arbitration is pending. The status quo provision does
not prevent parties from exercising their contractual
rights if they do not alter an existing wage, hour, or
other condition of employment. In this case, it is defen-
dant’s implementation of its restructuring and layoff
plan that is at issue. Plaintiff claims that it is a change
in “existing . . . conditions of employment” because it
will jeopardize firefighter safety, which our precedent
treats as a “condition of employment” and a mandatory
subject of bargaining. Defendant, on the other hand,
argues that it has the contractual right to lay off
firefighters. Thus, in order for the status quo provision
to be violated in this case, it must be determined that
the restructuring and layoff plan actually alters a
condition of employment, namely firefighter safety.
The question is what standard a circuit court must
apply in order for it to determine that an employer’s
challenged action actually violates the status quo pro-
vision by altering this condition of employment. The
Court of Appeals in Oak Park Pub Safety Officers Ass’n
v Oak Park1 recently adopted the standard that a
staffing proposal must be “inextricably intertwined
with safety” to be a mandatory subject of bargaining.
1
277 Mich App 317, 330; 745 NW2d 527 (2007).
2008] DETROIT FIRE FIGHTERS ASS’N V DETROIT 23
OPINION OF THE COURT

We adopt this standard for circuit court review of the

type of status quo violation claim presented here. A
circuit court must conclude that the employer’s chal-
lenged plan is so “inextricably intertwined with safety”
that its implementation would impermissibly alter the
status quo by altering this “condition” of employment.
The circuit court must make thorough factual findings
supporting such a conclusion.
Here, not only did the circuit court fail to resolve the
safety claim on the merits, it entered what amounted to a
permanent injunction without applying the traditional
injunctive standards. Thus, we hold that the circuit court
erroneously granted injunctive relief and the Court of
Appeals erroneously affirmed that decision.
Accordingly, we reverse the Court of Appeals, vacate
the preliminary injunction entered by the circuit court,
and remand for further proceedings consistent with
this decision.

FACTS AND PROCEDURAL HISTORY

Plaintiff is the exclusive bargaining representative of

eligible Detroit Fire Department (DFD) employees.
Defendant is the employer. Both are parties to a collec-
tive bargaining agreement (CBA) that took effect in
1998 and expired on June 30, 2001. Until a new
agreement is forged in the Act 312 arbitration, the
parties continue to operate under the old CBA. That
CBA states in pertinent part at Article 2.D that
[t]he City reserves the right to lay off personnel for lack of
work or funds; or for the occurrence of conditions beyond
the control of the Department; or when such continuation
of work would be wasteful and unproductive . . . .

In Article 14, the parties agreed that

24 482 MICH 18 [July
OPINION OF THE COURT

[w]ages, hours and conditions of employment legally in

effect on the effective date of this agreement, shall, except
as improved herein, be maintained during the term of this
Agreement.
It is not the intent of this Article to restrict, interfere with,
prevent or hinder the City from carrying out its duties and
responsibilities to the public well being, by way of illustration,
but not limitation, those rights, duties and responsibilities
enumerated in Article 2 and the Purpose and Intent clause
hereof, subject to the City’s obligations under PERA [public
employment relations act] and other laws.

After the CBA expired in 2001, the parties were

unable to agree to a new contract. In December 2002,
plaintiff invoked compulsory arbitration under Act 312
to create a successor agreement. Act 312 is meant to
provide an “alternate, expeditious, effective, and bind-
ing” arbitration process.2 Unless otherwise agreed by
the parties, Act 312 requires the arbitrator to call a
hearing within 15 days of being appointed,3 conclude
the hearing within 30 days of its commencement,4 and
issue a written opinion within 30 days of the conclusion
of the hearing.5 Here, the parties waived the time
limitations that Act 312 imposes on the arbitration
process. As a result, the “expeditious” Act 312 arbitra-
tion process is still pending after more than five years.
Defendant experienced serious budget shortfalls dur-
ing the ongoing Act 312 arbitration. These difficult
2
Section 1 of Act 312 provides, in pertinent part: “It is the public policy
of this state that in public police and fire departments, where the right of
employees to strike is by law prohibited, it is requisite to the high morale
of such employees and the efficient operation of such departments to
afford an alternate, expeditious, effective and binding procedure for the
resolution of disputes . . . .” MCL 423.231 (emphasis added).
3
MCL 423.236.
4
Id.
5
MCL 423.238.
2008] DETROIT FIRE FIGHTERS ASS’N V DETROIT 25
OPINION OF THE COURT

financial circumstances affected the operations of the

DFD, leading defendant to implement a restructuring
plan and a round of layoffs, effective July 1, 2005.
Unfortunately, the budget problems persisted, and de-
fendant announced, in September 2005, an additional
plan to restructure the DFD. Under this plan, defen-
dant proposed to lay off 65 firefighters, demote 10
battalion chiefs, and reduce the number of battalions
from eight to five. The plan reassigned the battalion
chief’s duties at “garden variety fires” to the senior
officer at the scene, and deactivated five engine and
ladder companies.
Plaintiff filed suit in the Wayne Circuit Court on
September 12, 2005, seeking declaratory and injunctive
relief to stop the September 2005 reorganization plan
from going into effect while the Act 312 arbitration was
pending. Plaintiff argued that unilateral implementa-
tion of the restructuring plan violated the status quo
provision of Act 312 because it required unilateral
alteration of minimum staffing, job duties, seniority,
parity, and emergency medical service requirements, all
of which affected both firefighter safety and mandatory
subjects of bargaining.
The circuit court held hearings beginning in late
September, and granted plaintiff’s request for a prelimi-
nary injunction on October 17, 2005. The court found
that there were issues of fact concerning whether the
layoffs would have an impact on the safety of the
firefighters—a mandatory subject of bargaining under
this Court’s decision in Local 1277, Metropolitan Coun-
cil No. 23, AFSCME, AFL-CIO v City of Center Line6
(Center Line II).
6
414 Mich 642; 327 NW2d 822 (1982).
26 482 MICH 18 [July
OPINION OF THE COURT

The circuit judge sent the case to the assigned Act

312 arbitrator, Michael P. Long, to decide the safety
issue and render his decision by October 27, 2005, at
which time the circuit judge would determine if the
preliminary injunction would remain in place. Although
he held hearings, the arbitrator responded to the circuit
court in an October 27, 2005, opinion stating that he
was “not able to make any well reasoned determination
as to the resolution of this dispute.” Arbitrator Long
indicated that he lacked jurisdiction to decide the safety
issue, observing that “[t]he normal channels were not
followed regarding reference of the matter to [Act] 312
arbitration.” He sent the case back to the circuit court
and recommended that the circuit court order the
parties to mediation while keeping the injunction in
place until the mediation process concluded.
The circuit court again granted a preliminary injunc-
tion in an October 31, 2005, order following another
hearing. At this hearing the court reviewed its earlier
statements and conceded:
I do want to say for the record after reading the
transcript of the previous hearing of the 17th, that I felt
that my choice of words was inapt because it sounded like
I was making a determination that there was an impact.
That is not my place to do that.

However, the circuit judge clarified, “I find that there’s

a serious question of fact as to whether or not [the
restructuring plan] would have an impact on fire fight-
ers’ safety, or indeed upon working conditions or work-
ing hours.” Relying on Center Line II and Detroit Police
Officers Ass’n v Detroit,7 the court found that the
reorganization and layoff plan “may implicate manda-
tory provisions of collective bargaining, namely the
7
135 Mich App 660; 354 NW2d 297 (1984), vacated 419 Mich 915
(1984).
2008] DETROIT FIRE FIGHTERS ASS’N V DETROIT 27
OPINION OF THE COURT

impact on [sic] the Plan on the hours and conditions of

employment (including the safety) of the members of the
plaintiff.” The preliminary injunction order enjoined de-
fendant from eliminating the battalion chiefs, eliminating
the firefighting companies, and laying off the firefighters.
It also ordered the parties to take all necessary steps to
have the matter brought before an Act 312 panel to
determine the factual questions surrounding the safety
issues. The order maintained the injunction until the
issuance of a final and binding Act 312 award.
The Court of Appeals affirmed the circuit court in a
published decision.8 Observing that the parties had a
duty under PERA to collectively bargain about manda-
tory subjects of bargaining and that layoff decisions are
not mandatory subjects, the panel relied on this Court’s
decision in Center Line II to hold that “where, as here,
proposed layoffs and restructuring may impact the
safety of working conditions for firefighters, those pro-
posals are mandatory subjects of bargaining.”9 The
panel agreed with the circuit court’s finding that “the
evidence established ‘serious issues of fact’ as to
whether the proposed changes would impact safety,
working conditions and working hours,” and as a result
“the proposed changes were subjects of mandatory
bargaining, and defendant could not therefore make
these unilateral alterations while the parties are en-
gaged in compulsory arbitration.”10 It disagreed with
defendant’s argument that injunctive relief was inap-
propriate because the terms of the CBA permitted
defendant to carry out the restructuring plan.
8
Detroit Fire Fighters Ass’n v Detroit, 271 Mich App 457; 722 NW2d
705 (2006).
9
Id. at 461.
10
Id. at 463.
28 482 MICH 18 [July
OPINION OF THE COURT

Defendant filed an application for leave to appeal with

this Court. This Court granted leave to appeal.11 Follow-
ing oral arguments, this Court ordered supplemental
briefing,12 and subsequently ordered reargument.13

STANDARD OF REVIEW

This Court reviews a trial court’s grant or denial of a

temporary injunction for abuse of discretion.14 There is an
abuse of discretion when the trial court’s decision falls
outside the range of principled outcomes.15 A question
of statutory interpretation is a question of law that we
review de novo.16 Finally, issues of contract interpreta-
tion are also questions of law reviewed de novo.17

ANALYSIS

Public labor relations in Michigan are governed by

PERA. One of PERA’s primary purposes “is to resolve
11
477 Mich 927 (2006). The grant order asked the parties to brief
“whether the defendant may implement the restructuring plan, or lay off
firefighters, before coming to an agreement with the plaintiff about the
impact of those actions.”
12
478 Mich 1201 (2007). In this order, we asked the parties to address (1)
whether Metropolitan Council No 23, Local 1277, AFSCME, AFL-CIO v
Center Line, 78 Mich App 281; 259 NW2d 460 (1977) (Center Line I),
correctly held that jurisdiction to enforce § 13 of Act 312, MCL 423.243,
resides in the circuit court, and (2) whether the Michigan Employment
Relations Commission has primary jurisdiction to enforce § 13, see Travel-
ers Ins Co v Detroit Edison, 465 Mich 185; 631 NW2d 733 (2001). Given our
resolution of this case, we do not reach the issues we asked the parties to
address on reargument.
13
480 Mich 880 (2007).
14
Michigan Coalition of State Employee Unions v Civil Service Comm,
465 Mich 212, 217; 634 NW2d 692 (2001).
15
Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
16
Costa v Community Emergency Med Services, 475 Mich 403, 408; 716
NW2d 236 (2006).
17
Sweebe v Sweebe, 474 Mich 151, 154; 712 NW2d 708 (2006).
2008] DETROIT FIRE FIGHTERS ASS’N V DETROIT 29
OPINION OF THE COURT

labor-management strife through collective bargain-

ing.”18 Under PERA a public labor union may not strike
when disagreements arise in the collective bargaining
process.19 Because public sector labor unions in Michi-
gan lack the right to strike, they lack a significant tool
to leverage their bargaining position.
By its own terms, Act 312 is “supplementary” to
PERA, which was enacted over 20 years earlier.20 Act
312 was intended, in the specific context of police and
firefighter unions, to redress the imbalance in bargain-
ing power created by the prohibition of strikes, and to
preclude the possibility of an illegal strike by these
unions that provide vital public services, namely police
and fire protection. As Justice COLEMAN observed:
When policemen engage in a strike, the community
becomes immediately endangered by the withdrawal of
their services. Likewise, our case law has often focused on
the fact that fire fighters have a distinct and crucial
employment relationship with a public employer.[21]

18
Port Huron Ed Ass’n v Port Huron Area School Dist, 452 Mich 309,
311; 550 NW2d 228 (1996).
19
MCL 423.202.
20
MCL 423.244 (“This act shall be deemed as supplementary to Act No.
336 of the Public Acts of 1947, as amended, being sections 423.201 to
423.216 of the Compiled Laws of 1948, and does not amend or repeal any
of its provisions; but any provisions thereof requiring fact-finding proce-
dures shall be inapplicable to disputes subject to arbitration under this
act.”).
21
Dearborn Fire Fighters, 394 Mich at 279 (opinion of COLEMAN, J.). In
Dearborn Fire Fighters, with three justices not participating, the remain-
ing four justices considered the constitutionality of Act 312. Justice LEVIN
and Chief Justice KAVANAGH held that the act was unconstitutional as an
unlawful delegation of legislative power. Justice COLEMAN held the statute
constitutional in its entirety. Justice WILLIAMS held the statute constitu-
tional on the facts of the case. With the members of this Court evenly
split, the Court of Appeals decision upholding the constitutionality of Act
312 was affirmed. The constitutionality of Act 312 was again considered
30 482 MICH 18 [July
OPINION OF THE COURT

Thus,
[u]nder Act 312, if the public employer and the police
offers’ or fire fighters’ bargaining unit have not reached an
agreement concerning a mandatory subject of bargaining,
and mediation proves unsuccessful, either party may ini-
tiate binding arbitration in order to avert a strike.[22]

The status quo provision of Act 312 states that

[d]uring the pendency of proceedings before the arbitration
panel, existing wages, hours and other conditions of em-
ployment shall not be changed by action of either party
without the consent of the other but a party may so consent
without prejudice to his rights or position under this act.[23]

Recalling the delicate balance of bargaining power our

labor statutes seek to preserve in police and firefighter
labor disputes, this provision was intended to prevent
either party from gaining unfair leverage during the
pendency of Act 312 interest arbitration.
Under the status quo provision, neither party with-
out consent can alter “existing wages, hours, and other
conditions of employment” while Act 312 arbitration is
pending. We observed in Center Line II that safety is a
condition of employment and, as such, a mandatory
subject of bargaining.24 Consequently, the status quo
and upheld by a majority of this Court in Detroit v Detroit Police Officers
Ass’n, 408 Mich 410; 294 NW2d 68 (1980), and Center Line II.
22
Dearborn Fire Fighters, 394 Mich at 280 (opinion of COLEMAN, J.).
23
MCL 423.243.
24
See Center Line II, 414 Mich at 661-664. See also, e.g., Manistee v
Manistee Fire Fighters Ass’n, Local 645, IAFF, 174 Mich App 118, 122;
435 NW2d 778 (1989). In Center Line II, one of the central issues was the
scope of an Act 312 panel’s authority. This Court interpreted Act 312 in
the context of PERA’s distinction between mandatory and permissive
subjects of bargaining, observing that “[w]hile Act 312 does not specifi-
cally delineate the scope of the arbitration panel’s authority, it can be
inferred from an analysis which considers [PERA] . . . and Act 312
together.” Id. at 651-652. We held that “[g]iven the fact that Act 312
2008] DETROIT FIRE FIGHTERS ASS’N V DETROIT 31
OPINION OF THE COURT

provision prohibits changes to an existing condition of

employment such as safety during the pendency of Act
312 arbitration.
Of chief importance in a case involving an alleged
status quo violation is whether an employer’s restruc-
turing and layoff plan alters a condition of employment
such as safety. The Court of Appeals recently held in
Oak Park that where a union seeks to compel Act 312
arbitration with respect to staffing decisions, it must
demonstrate that those decisions are “inextricably in-
tertwined with safety” to constitute a mandatory sub-
ject of bargaining.25 If it does not, then the employer
cannot be compelled to arbitrate the staffing decision
under Act 312. The Oak Park panel rejected as “unten-
complements PERA and that under § 15 of PERA the duty to bargain
only extends to mandatory subjects, . . . the arbitration panel can only
compel agreement as to mandatory subjects.” Id. at 654. Thus, we
concluded that the Act 312 panel in Center Line II exceeded the scope of
its authority when it compelled the parties to accept a layoff provision as
part of a new labor contract because the layoff clause, which provided
that police officer layoffs for lack of funds could only be made in
conjunction with layoffs and cutbacks in other departments, fell within
the scope of management prerogative and was outside the realm of
mandatory subjects of bargaining. However, Center Line II cautioned that
“while the initial decision to lay off is not a mandatory subject of
bargaining, and therefore cannot be compelled in an arbitration award, it
is clear that there is a duty to bargain over the impact of that decision.”
Id. at 661. The impact of the decision to lay off, according to Center Line
II, might implicate a mandatory subject of bargaining that triggers the
duty to collectively bargain.
In this case, both parties appear to concede that, consistent with
Center Line II, defendant retains the prerogative to lay off firefighters.
However, plaintiff argues that the impact of the restructuring plan,
which includes layoffs, implicates a mandatory subject of bargaining
because it affects firefighter safety, a “condition of employment” that
should not be altered during Act 312 arbitration proceedings.
25
Oak Park, 277 Mich App at 329-330. See also Trenton v Trenton Fire
Fighters Union, Local 2701, IAFF, 166 Mich App 285; 420 NW2d 188
(1988).
32 482 MICH 18 [July
OPINION OF THE COURT

able” the union’s proposed alternative standard that

“as long as a staffing decision arguably affects, con-
cerns, or relates to safety—whether the effect be mini-
mal, insignificant, or unjustifiable—the issue of staffing
is a condition of employment that is subject to manda-
tory arbitration.”26 It reasoned:
The standards implemented by the hearing referee
and MERC in this case are consistent with the require-
ment that only those matters that have a significant
impact on conditions of employment are subject to
mandatory bargaining. The impact of a staffing decision
on working conditions, including safety, must be proven
to be significant, not merely to arguably exist. . . . To
adopt the union’s position would be tantamount to
requiring that most, if not all, minimum staffing
proposals—particularly with regard to [public safety
officers], police officers, firefighters, and others engaged
in high-risk professions—be subject to mandatory bar-
gaining, given that a reduction in the number of these
employees will arguably have some—albeit minimal—
impact on safety. Such a conclusion would have the effect
of invading the city’s prerogative to determine the size
and scope of its business, including the services it will
provide. We decline to reach such a conclusion.[27]

Although Oak Park addressed a different legal issue

and not the status quo issue presented here, we find the
logic and standard endorsed by Oak Park compelling in
this context.28 A hasty or tentative finding that a
26
Oak Park, 277 Mich App at 326.
27
Id. at 329-330 (citations omitted).
28
In Oak Park, the city filed an unfair labor practice charge against the
union, alleging that the union unlawfully demanded bargaining over
permissive bargaining subjects, such as a safety/staffing provision, in an
Act 312 arbitration. The hearing referee and the MERC panel ruled in
favor of the city, deciding that the union breached its duty to bargain in
good faith. The Court of Appeals affirmed in a published opinion per
curiam.
2008] DETROIT FIRE FIGHTERS ASS’N V DETROIT 33
OPINION OF THE COURT

restructuring and layoff plan violates the status quo

would “invad[e] the city’s prerogative to determine the
size and scope of its business, including the services it
will provide,”29 just as surely as if every employer’s
staffing decision that merely arguably affected safety
conditions were subject to mandatory bargaining. Thus,
whether a layoff and restructuring plan jeopardizes
employee safety requires a careful examination of the
plan details and a finding that the plan is “inextricably
intertwined with safety” such that it would have a
“significant impact” on safety.30
The central problem with the circuit court’s decision
in this case, and by extension the Court of Appeals
decision to affirm it, is that it only found that defen-
dant’s layoff and restructuring plan “may” implicate a
mandatory subject of bargaining and that this case
“raised questions of fact” about firefighter safety. After
issuing the preliminary injunction, the circuit court
never conclusively determined that the plan unlawfully
altered the status quo. Indeed, the circuit court ex-
pressly stated that it was not deciding the merits of
plaintiff’s claim. And, when the circuit court attempted
to induce Arbitrator Long to resolve the safety dispute,
he declined to do so.
Given the magnitude of a decision to restrain an
employer’s exercise of a management prerogative, this
level of uncertainty in a circuit court ruling is unten-
able. By its terms, this injunction was to remain in place
until the conclusion of Act 312 arbitration, but a
determination on the merits would never have been
made. On a practical level, what was termed by the
circuit court a “preliminary injunction” became a de
facto permanent injunction, without resolving the mer-
29
Id. at 330.
30
Id.
34 482 MICH 18 [July
OPINION OF THE COURT

its of the alleged status quo violation. Moreover, the

injunction was issued where the traditional elements
required for injunctive relief had not been established.
Specifically, although the circuit court found that there
were “issues of fact” regarding the safety issue, it did
not find that there was a likelihood of success on the
merits in this regard, nor did the court conclude that
the firefighters would suffer irreparable harm.
Where a party seeks a preliminary injunction to
prevent an alleged status quo violation as in this case,
the party must satisfy a two-step process. First, it bears
the burden of proving that the traditional four elements
favor the issuance of a preliminary injunction. The trial
court must evaluate whether (1) the moving party made
the required demonstration of irreparable harm, (2) the
harm to the applicant absent such an injunction out-
weighs the harm it would cause to the adverse party, (3)
the moving party showed that it is likely to prevail on
the merits, and (4) there will be harm to the public
interest if an injunction is issued.31
Second, if a trial court determines that the standards
for a preliminary injunction have been met and chooses
31
Michigan State Employees Ass’n v Dep’t of Mental Health, 421 Mich
152, 157-158; 365 NW2d 93 (1984). See also Pontiac Fire Fighters Union
Local 376 v Pontiac, 482 Mich 1, 10-11; 753 NW2d 595 (2008). We
disagree with and overrule as inconsistent with this Court’s decision the
Court of Appeals holding in Detroit Police Officers Ass’n v Detroit, 142
Mich App 248; 369 NW2d 480 (1985), that the traditional injunctive
standards do not apply when issuing an injunction to remedy a violation
of the status quo provision. This Court has consistently held that it is
“basically contrary to public policy in this State to issue injunctions in
labor disputes absent a showing of violence, irreparable injury, or breach
of the peace.” Holland School Dist v Holland Ed Ass’n, 380 Mich 314,
326; 157 NW2d 206 (1968); see also Michigan State Employees Ass’n, 421
Mich at 164-165; Michigan Law Enforcement Union, Teamsters Local
129 v Highland Park, 422 Mich 945 n 1 (1985). An injunction concerning
a dispute about the status quo provision should be treated no differently.
2008] DETROIT FIRE FIGHTERS ASS’N V DETROIT 35
OPINION OF THE COURT

to issue an injunction, it must promptly decide the

merits of the status quo claim. MCR 3.310(A) governs
preliminary injunctions. Subsection 5 requires that “[i]f
a preliminary injunction is granted . . . [t]he trial of the
action on the merits must be held within 6 months after
the injunction is granted, unless good cause is shown or
the parties stipulate to a longer period.”32
Therefore, on remand, the circuit court must engage
in this two-step inquiry. First, it must determine
whether plaintiff has satisfied the traditional four-part
test for a preliminary injunction, particularly that
plaintiff has demonstrated a likelihood of success on the
merits that the plan is “inextricably intertwined with
safety” and made a showing of irreparable harm. Sec-
ond, if the circuit court issues a preliminary injunction,
there must be a determination on the merits that the
challenged employer action is “inextricably intertwined
with safety” as that standard was articulated in Oak
Park. It must do more than conclude that the chal-
lenged employer action arguably affects safety. To that
end, any decision by the circuit court that the employer
action is “inextricably intertwined with safety” must be
conclusive and supported by specific, detailed findings
of fact.

CONCLUSION

We hold that the circuit court erred when it issued

the preliminary injunction preventing the implementa-
tion of the restructuring plan. The circuit court issued
what amounted to a permanent injunction where the
underlying merits of the alleged status quo violation
32
However, MCR 3.310(A)(2) permits the court to accelerate the
process by advancing and consolidating the trial of the action on the
merits with the hearing on the motion. In either case, the merits of the
claim cannot remain unresolved.
36 482 MICH 18 [July
OPINION BY KELLY, J.

would never be resolved, contrary to the requirements

of MCR 3.310(A)(5). We further hold that, when a safety
claim is alleged, an employer’s challenged action alters
the status quo during the pendency of an Act 312
arbitration only if the action is so “inextricably inter-
twined with safety” that the action would alter a
“condition of employment.”
We reverse the Court of Appeals judgment, vacate the
preliminary injunction entered by the circuit court, and
remand the case to the circuit court for further proceed-
ings consistent with this opinion.

TAYLOR, C.J., and WEAVER, CORRIGAN, and MARKMAN,

JJ., concurred with YOUNG, J.

CAVANAGH, J. I concur in the result only.

KELLY, J. (concurring in part and dissenting in part).

I concur in the majority’s decision to remand this case
to the circuit court for a clear determination of whether
the city of Detroit’s reorganization plan violates § 13 of
Act 312. The remand is necessary because the circuit
court stated its conclusions in terms that are too
tentative.
The circuit court must determine whether the union
is likely to succeed on the merits of its claim that a
status quo violation occurred. If it finds such a likeli-
hood, it may presume that the union will be irreparably
harmed should the violation not be enjoined for the
duration of the arbitration proceedings. Because I have
reached this conclusion, it follows that I would not
overrule Detroit Police Officers Ass’n v Detroit.1
1
Detroit Police Officers Ass’n v Detroit, 142 Mich App 248; 369 NW2d
480 (1985) (Detroit POA).
2008] DETROIT FIRE FIGHTERS ASS’N V DETROIT 37
OPINION BY KELLY, J.

In Detroit POA, the Court of Appeals held that the

trial court was not required to make a finding of
irreparable harm or inadequate remedy at law before
enjoining violations of § 13 of Act 312.2 It relied on the
interpretation by federal courts of a similar status quo
provision in the federal Railway Labor Act (RLA).3 That
provision states in relevant part that “rates of pay,
rules, or working conditions shall not be altered by the
carrier until the controversy has been finally acted
upon . . . by the Mediation Board . . . .”4
Federal courts, including the United States Supreme
Court, have held that this provision allows injunctive
enforcement by the district courts without a showing of
irreparable harm in cases of major disputes.5 Federal
courts forgo the traditional requirement of irreparable
harm because the plain statutory language does not
require such a showing and irreparable harm is pre-
sumed in cases involving major disputes.6
2
Id. at 253.
3
45 USC 151 et seq.
4
45 USC 156.
5
Major disputes involve disagreements over future contractual rights
or changes in the terms in existing agreements. The parties are required
to maintain the status quo during a lengthy bargaining and mediation
process. ABX Air, Inc v Airline Professionals Ass’n of the Int’l Brother-
hood of Teamsters, Local Union No 1224, AFL-CIO, 266 F3d 392, 396 (CA
6, 2001). The United States Supreme Court authorized the use of
injunctive relief to enforce the status quo provision of the RLA for major
disputes. Consolidated Rail Corp v R Labor Executives’ Ass’n, 491 US
299, 303; 109 S Ct 2477; 105 L Ed 2d 250 (1989). In Detroit & Toledo
Shore Line R Co v United Transportation Union, 396 US 142, 150; 90 S
Ct 294; 24 L Ed 2d 325 (1969), the Supreme Court explained its rationale:
“[D]elaying the time when the parties can resort to self-help provides
time for tempers to cool, helps create an atmosphere in which rational
bargaining can occur, and permits the forces of public opinion to be
mobilized in favor of a settlement without a strike or lockout.”
6
A showing of irreparable injury is not required in light of the public
interest in settlement of labor disputes and the fact that the duty to
38 482 MICH 18 [July
OPINION BY KELLY, J.

The majority argues that issuing an injunction with-

out a showing of irreparable harm goes against the
public policy of this state and that a status quo violation
should not receive special treatment.7 However, only
one of the cases cited by the majority involves a viola-
tion of § 13 of Act 312. In its peremptory order in that
case, the Court did not consider the public policy
concerns codified in Act 312.8 And when the Court had
an opportunity to consider whether the holding of
Detroit POA contradicted the public policy of this state,
it denied leave to appeal.9
It is an accepted rule of statutory construction that
the Court should not impose policy choices that differ
from those selected by the Legislature.10 The majority
here acknowledges the public policy concerns that oc-
casioned the passing of Act 312: “Act 312 was intended,
in the specific context of police and firefighter unions,
to redress the imbalance in bargaining power created by
the prohibition of strikes, and to preclude the possibility
of an illegal strike by these unions that provide vital
public services, namely police and fire protection.”11
These policy concerns are expressly codified in two
statutes: MCL 423.231, which affords arbitration to
police and firefighter unions as “an alternate, expedi-
tious, effective and binding procedure for the resolution
maintain the status quo “contains no qualification to the effect that the
carrier has no obligation to [maintain the status quo] unless irreparable
injury would otherwise result.” Southern R Co v Brotherhood of Locomo-
tive Firemen and Enginemen, 337 F2d 127, 133-34 (DC Cir, 1964).
7
Ante at 34 n 31.
8
See Michigan Law Enforcement Union, Teamsters Local 129 v High-
land Park, 422 Mich 945 n 1 (1985).
9
Detroit Police Officers Ass’n v Detroit, 424 Mich 894 (1986).
10
People v McIntire, 461 Mich 147, 152-153; 599 NW2d 102 (1999).
11
Ante at 29.
2008] DETROIT FIRE FIGHTERS ASS’N V DETROIT 39
OPINION BY KELLY, J.

of disputes,”12 and MCL 423.243, which prohibits uni-

lateral changes in the status quo while arbitration is
pending.13
The traditional requirement of irreparable harm
requires a determination that the injury cannot be
repaired by means other than an injunction.14 A unilat-
eral change in the status quo has an obviously negative
effect on a union’s bargaining power. It compromises
the integrity of the bargaining process. Because of the
bargaining disadvantage at which unilateral changes
place a union, the union is unlikely to attain a retroac-
tive restoration of the status quo. Because a strike is the
only method of maintaining bargaining power in the
face of a unilateral change, Act 312 aims to prevent the
resort to strikes by police and firefighters. Thus, in
passing Act 312, the Legislature effectively decided that
any remedy other than an injunction would be inad-
equate. Consequently, a status quo violation presump-
tively causes irreparable harm.
The Court of Appeals in Detroit POA did not err in
concluding that no showing of irreparable harm was
necessary to enjoin violations of the status quo during
Act 312 arbitration. While I concur in the decision to
remand this case to the circuit court, I would not
12
MCL 423.231 states in relevant part: “It is the public policy of this
state that in public police and fire departments, where the right of
employees to strike is by law prohibited, it is requisite to the high morale
of such employees and the efficient operation of such departments to
afford an alternate, expeditious, effective and binding procedure for the
resolution of disputes . . . .” (Emphasis added.)
13
MCL 423.243 states: “During the pendency of proceedings before the
arbitration panel, existing wages, hours and other conditions of employ-
ment shall not be changed by action of either party without the consent
of the other but a party may so consent without prejudice to his rights or
position under this act.”
14
Michigan Coalition of State Employee Unions v Civil Service Comm,
465 Mich 212, 241; 634 NW2d 692 (2001) (CAVANAGH, J., dissenting).
40 482 MICH 18 [July
OPINION BY KELLY, J.

require the union to show irreparable harm. Such harm

should be presumed if the court determines that the
city’s reorganization plan violates the status quo.15
15
I believe that the most important reason for issuing an injunction for
the duration of Act 312 arbitration proceedings is to protect the parties’
bargaining positions. But irreparable harm should be presumed in the
case of a status quo violation for another reason as well.
The majority posits that, to show a status quo violation, the union
must demonstrate that the city’s reorganization plan is “so ‘inextricably
intertwined with safety’ that its implementation would impermissibly
alter the status quo by altering this ‘condition’ of employment.” Ante at
23. But the impact of proposed layoffs on firefighter safety was also
deemed relevant to the question of irreparable harm in Pontiac Fire
Fighters Union Local 376 v Pontiac, 482 Mich 1, 10-11; 753 NW2d 595
(2008) which the majority cites for the four traditional elements of
injunctive analysis. Ante at 34 n 31. Unlike Pontiac, this case involves an
Act 312 arbitration, so the majority directs the circuit court to look for
both irreparable harm and a status quo violation. If both these inquiries
are premised on the impact of the layoffs on firefighter safety, then the
majority essentially directs the circuit court to engage in a duplicative
analysis.
2008] PEOPLE V GARDNER 41

PEOPLE v GARDNER

Docket No. 131942. Decided July 23, 2008.

A Wayne Circuit Court jury convicted Caprese D. Gardner of second-
degree murder, being a felon in possession of a firearm, and
possessing a firearm during the commission of a felony. The court,
Prentis Edwards, J., sentenced the defendant under MCL 769.11
as a third offense habitual offender to concurrent prison terms of
25 to 50 years for the murder conviction and 2 to 10 years for the
felon-in-possession conviction and to a consecutive 5 year term for
the felony-firearm conviction. The two prior felonies that the court
used for the habitual offender enhancement arose from the same
criminal act. On appeal, the defendant challenged several of the
court’s evidentiary rulings, but did not raise the issue of using
multiple felonies arising from the same incident or transaction for
habitual offender enhancement. The Court of Appeals, GAGE, P.J.,
and MURPHY and JANSEN, JJ., affirmed the defendant’s convictions
and sentences in an unpublished opinion per curiam, issued April
13, 2003 (Docket No. 238186), and the Supreme Court denied leave
to appeal, 469 Mich 975 (2003). The defendant subsequently
sought relief from the judgment in the trial court, arguing that his
trial and appellate attorneys had provided ineffective assistance of
counsel by failing to challenge the manner in which the trial court
used his two prior felony convictions when determining his ha-
bitual offender status. The defendant argued that, under People v
Stoudemire, 429 Mich 262 (1987), and People v Preuss, 436 Mich
714 (1990), the trial court should have counted the two convictions
as a single prior conviction because they arose from the same
criminal act. Had the court done so, the defendant argued, he
would have faced potentially shorter prison terms for the murder
and felon-in-possession convictions. The trial court denied the
defendant’s motion, concluding that the defendant had not estab-
lished good cause for his failure to raise the issue in his prior
appeal. The Court of Appeals, TALBOT, P.J., and FITZGERALD and
SMOLENSKI, JJ., denied the defendant’s application for leave to
appeal in an unpublished order, entered July 10, 2006 (Docket No.
267317). The Supreme Court ordered and heard oral argument on
42 482 MICH 41 [July

whether to grant the defendant’s application for leave to appeal or

take other peremptory action. 477 Mich 1096 (2007).
In an opinion by Justice CORRIGAN, joined by Chief Justice
TAYLOR and Justices YOUNG and MARKMAN, the Supreme Court held:
A court must count each separate felony conviction that
preceded the sentencing offense when determining a defendant’s
habitual offender status, regardless of whether any of the convic-
tions arose out of the same criminal act or incident.
1. Habitual offender status generally gives a sentencing court
the option to increase a repeat offender’s maximum sentence, and
it also increases the high end of the minimum sentence range
recommended for the offender under the sentencing guidelines.
The defendant would have been subject to a maximum sentence of
life imprisonment for his second-degree murder conviction regard-
less of any habitual offender enhancement. If the sentencing court
had sentenced the defendant as a second offense habitual offender,
his recommended minimum sentence range would have been 180
to 375 months rather than 180 to 450 months. Although the
defendant’s 25 year minimum sentence is within both of these
ranges and the 180 to 300 month range that would have applied
with no habitual offender enhancement, resentencing would none-
theless be required in this case if the trial court relied on an
inaccurate higher range when it imposed the defendant’s mini-
mum sentence.
2. MCL 769.11(1) requires a court to count any combination of
prior felony convictions for purposes of habitual offender enhance-
ment. The plain language of the statute does not require that the
convictions arose from separate incidents. Stoudemire and Preuss
erred by considering the legislative history of the habitual offender
statutes and adding a same incident test to the statutory require-
ments, and those cases are overruled.
3. The defendant was properly sentenced as a third offense
habitual offender because he had been convicted of two prior
felonies. A defendant claiming ineffective assistance of counsel
cannot show prejudice by defense counsel’s failure to raise an
objection that would have been supported by a decision that was
subsequently overruled. Thus, resentencing is not required in this
case.
Sentences affirmed.
Justice WEAVER concurred only in the result of the majority
opinion. The defendant suffered no material injustice in this case.
Any error in the defendant’s sentencing was harmless, and the
defendant need not be resentenced.
2008] PEOPLE V GARDNER 43

Justice CAVANAGH, joined by Justice KELLY, dissenting, would

not overrule Stoudemire and Preuss. The Legislature intended the
habitual-offender statutes to apply to individuals who persist in
criminal activity despite having been convicted. Until now, the
Court has consistently held that all predicate felony convictions
used for habitual-offender purposes must have arisen from sepa-
rate criminal incidents. The language of the habitual-offender
statutes, and the statutory scheme of which they are a part,
indicates a legislative intent to require separate incidents. The
legislative history of the statutes supports the Preuss rule. Even if
the majority’s interpretation of the statutes were correct, however,
the rule of lenity should apply because there are still plausible,
competing interpretations of these criminal statutes, and Preuss
should not be overruled. Because the defendant’s prior felony
convictions arose out of the same criminal act, they should be
counted as only one prior conviction, and the defendant should be
resentenced as a second-offense habitual offender.
Justice KELLY, dissenting, joined Justice CAVANAGH’s dissent and
agreed with him that Preuss should not be overruled, but wrote
separately to object to the majority’s refusal to apply stare decisis
in this case and recent Supreme Court cases. Preuss was correctly
decided. When determining whether to overrule a case, however,
whether the case was correctly decided is only the first step in the
test set forth in Robinson v Detroit, 462 Mich 439 (2000). Even
when a case was decided incorrectly, before overruling it, the Court
must also examine whether the prior decision remains workable,
the degree of reliance on the decision, and whether changes in the
law or facts have undermined the basis of the decision. Addition-
ally, overruling a precedent requires some special justification.
None of these factors is present with regard to Preuss.

SENTENCES — HABITUAL OFFENDERS — PRIOR CONVICTIONS OF HABITUAL OFFEND-

ERS — SAME INCIDENT OR TRANSACTION.

The habitual offender statutes require a sentencing court to count

each separate felony conviction that preceded the sentencing
offense when determining an offender’s habitual offender status,
regardless of whether any of the convictions arose out of the same
criminal act or incident (MCL 769.11[1]; MCL 769.12[1]).

Michael A. Cox, Attorney General, Thomas L. Casey,

Solicitor General, Kym L. Worthy, Prosecuting Attor-
ney, Timothy A. Baughman, Chief of Research, Train-
ing, and Appeals, and Olga Agnello, Assistant Prosecut-
ing Attorney, for the people.
44 482 MICH 41 [July
OPINION OF THE COURT

Arthur James Rubiner and Caprese D. Gardner, in

propria persona, for the defendant.
Amicus Curiae:

Jacqueline J. McCann for the Criminal Defense At-

torneys of Michigan.

CORRIGAN, J. In this case, we consider the correct

method for counting prior felonies under Michigan’s
habitual offender statutes, MCL 769.10, 769.11, 769.12,
and 769.13. These statutes establish escalating penal-
ties for offenders who are repeatedly convicted of felo-
nies. This Court has ruled that the statutes imply that
each predicate felony must arise from separate criminal
incidents. People v Preuss, 436 Mich 714; 461 NW2d 703
(1990); People v Stoudemire, 429 Mich 262; 414 NW2d
693 (1987), mod by Preuss, supra at 739. Therefore,
multiple felonies that arise from the same criminal
incident or transaction count as a single felony under
the habitual offender laws.
We conclude that the holdings of Stoudemire and
Preuss directly contradict the plain text of the statutes.
Therefore, we overrule these cases. The unambiguous
statutory language directs courts to count each separate
felony conviction that preceded the sentencing offense,
not the number of criminal incidents resulting in felony
convictions. Accordingly, defendant was properly sen-
tenced and we affirm his sentences.

I. FACTS AND PROCEDURAL HISTORY

In 2001, a jury convicted defendant, Caprese D.

Gardner, of second-degree murder, MCL 750.317, being
a felon in possession of a firearm (felon in possession),
MCL 750.224f, and possessing a firearm during the
commission of a felony (felony-firearm), MCL 750.227b.
2008] PEOPLE V GARDNER 45
OPINION OF THE COURT

The facts underlying his convictions do not bear on the

current question before this Court. On August 30, 2001,
the circuit court sentenced defendant as a third offense
habitual offender, MCL 769.11, to concurrent prison
terms of 25 to 50 years for the murder conviction and 2 to
10 years for the felon in possession conviction and a
consecutive term of 5 years for the felony-firearm convic-
tion. On direct appeal, defendant challenged several of the
circuit court’s evidentiary rulings, but did not raise the
present issue. The Court of Appeals affirmed his convic-
tions and sentences.1 This Court denied defendant’s
subsequent application for leave to appeal.2
In 2004, defendant sought relief from judgment un-
der MCR 6.501 et seq. He argued that his appointed trial
and appellate attorneys had provided constitutionally
ineffective representation because they failed to inves-
tigate and challenge the two prior convictions underly-
ing his third offense habitual offender status. For
purposes of the habitual offender enhancement, defen-
dant had stipulated at trial prior convictions of feloni-
ous assault and felony-firearm. In his motion for relief
from judgment, defendant claimed that both of those
convictions, for which he had been sentenced on Febru-
ary 25, 1988, arose from the same criminal act. Accord-
ingly, he asserted that the two convictions should have
been counted as a single prior felony conviction for
purposes of applying the habitual offender laws under
Stoudemire and Preuss. Thus, defendant argued that he
should have been sentenced only as a second offense
habitual offender, MCL 769.10, and therefore would
have been exposed to potentially shorter prison terms
for his murder and felon in possession convictions. He
1
People v Gardner, unpublished opinion per curiam of the Court of
Appeals, issued April 13, 2003 (Docket No. 238186).
2
469 Mich 975 (2003).
46 482 MICH 41 [July
OPINION OF THE COURT

also argued that he had good cause for belatedly raising

this issue in a motion for relief from judgment under
MCR 6.508(D)(3)(a) because his appellate attorney was
constitutionally ineffective for failing to recognize and
raise the issue in defendant’s prior appeal.
The circuit court denied defendant’s motion, opining
that defendant had not established good cause for his
failure to raise this issue in his prior appeal. The Court
of Appeals denied defendant’s application for leave to
appeal “for failure to meet the burden of establishing
entitlement to relief under MCR 6.508(D).”3
Defendant then applied for leave to appeal in this
Court. We heard oral argument on whether to grant his
application or take other peremptory action. We directed
the parties to address whether Preuss and Stoudemire
“correctly held that multiple convictions arising out of a
single criminal incident may count as only a single prior
conviction for habitual offender purposes and, if so,
whether the defendant is entitled to be resentenced.”4

II. STANDARDS OF REVIEW

The primary question requires us to interpret Michi-

gan’s habitual offender statutes. This Court reviews de
novo questions of statutory interpretation. People v
Buehler, 477 Mich 18, 23; 727 NW2d 127 (2007). We also
review de novo the ultimate constitutional question
whether an attorney’s ineffective assistance deprived a
defendant of his Sixth Amendment5 right to counsel.
People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246
(2002).
3
People v Gardner, unpublished order of the Court of Appeals, entered
July 10, 2006 (Docket No. 267317).
4
477 Mich 1096 (2007).
5
US Const, Am VI.
2008] PEOPLE V GARDNER 47
OPINION OF THE COURT
III. ANALYSIS

Defendant was sentenced as a third offense habitual

offender under MCL 769.11, which reads, in pertinent
part:
If a person has been convicted of any combination of 2 or
more felonies or attempts to commit felonies, whether the
convictions occurred in this state or would have been for
felonies or attempts to commit felonies in this state if
obtained in this state, and that person commits a subse-
quent felony within this state, the person shall be punished
upon conviction of the subsequent felony and sentencing
under section 13 of this chapter as follows . . . . [MCL
769.11(1) (emphasis added).]

The same relevant language has appeared in each

habitual offender statute6 since 1978.7 In 1987 and
1990, respectively, the Stoudemire and Preuss courts
concluded that these statutes imply a same-incident or
single-transaction method of counting prior felonies for
purposes of sentencing enhancement. Accordingly, each
predicate felony must “arise from separate criminal
incidents.” Preuss, supra at 717.
Habitual offender status may increase a defendant’s
minimum and maximum sentences.8 The sentencing
judge generally has the option to increase a repeat
offender’s maximum sentence.9 The high end of the
statutory recommended minimum sentence range un-
6
MCL 769.10(1); MCL 769.11(1); MCL 769.12(1).
7
See Preuss, supra at 720.
8
Michigan has a primarily indeterminate sentencing scheme. For most
crimes, courts impose both a minimum and a maximum sentence. The
maximum sentence is set by statute on the basis of the sentencing
offense. The recommended minimum sentence range is set by statutory
guidelines that take into account the circumstances of the particular
offense and offender. MCL 769.8; MCL 769.34; People v Harper, 479 Mich
599, 612-613; 739 NW2d 523 (2007).
9
MCL 769.10(1); MCL 769.11(1); MCL 769.12(1).
48 482 MICH 41 [July
OPINION OF THE COURT

der the sentencing guidelines (the maximum minimum)

also increases on the basis of the number of prior
convictions. Second offense, third offense and fourth
offense10 habitual offenders face increases in their maxi-
mum minimums of 25 percent, 50 percent and 100
percent, respectively. MCL 777.21(3)(a) through (c).
Here, defendant would have been subject to a maxi-
mum penalty of life in prison for his second-degree
murder conviction even without an habitual offender
enhancement. His unenhanced minimum sentence
range—based on a prior record variable score of 20 and
an offense variable score of 65—was 180 to 300 months.
MCL 777.61. Because he was sentenced as a third
offense habitual offender, MCL 769.11(1), he was sub-
ject to an enhanced minimum sentence range of 180 to
450 months (a maximum minimum of 300 months
increased by 50 percent), MCL 777.21(3)(b).
Defendant argues that, under Stoudemire and
Preuss, he should have been sentenced only as a second
offense habitual offender, MCL 769.10(1), because his
two prior felony convictions arose from the same crimi-
nal incident. If he had been sentenced as a second
offense habitual offender, his statutory minimum sen-
tence range would have been 180 to 375 months (a
maximum minimum of 300 months increased by 25
percent). Although his 300-month (25-year) minimum
sentence falls within the minimum sentence ranges for
both second and third offense habitual offenders, as
well as the enhanced range, defendant correctly argues
that, if the circuit court relied on an inaccurate higher
range when it imposed the sentence, resentencing
10
MCL 769.12(1) establishes enhanced maximum sentences for offend-
ers with three or more prior felony convictions. For ease of reference, we
call these offenders “fourth offense habitual offenders.”
2008] PEOPLE V GARDNER 49
OPINION OF THE COURT

would be required. People v Francisco, 474 Mich 82,

89-92; 711 NW2d 44 (2006).
The prosecution does not contest defendant’s claim
that his two prior felony convictions of felonious assault
and felony-firearm arose from the same criminal inci-
dent. The prosecution also concedes that defendant may
raise the issue in his current motion for relief from
judgment because, if Stoudemire and Preuss correctly
interpreted the habitual offender statutes, defendant
has been prejudiced by the constitutionally ineffective
assistance of his appointed trial and appellate attor-
neys.11 The prosecution argues, however, that Stou-
11
Defendant’s appointed attorneys did not raise the error at sentenc-
ing, in a motion for resentencing, or in a motion for remand in the Court
of Appeals. Accordingly, defendant properly raises his argument in
connection with a claim that he was denied his Sixth Amendment right to
effective assistance of counsel. Francisco, supra at 90 n 8. An attorney is
ineffective for Sixth Amendment purposes if his performance fell below
an objective standard of reasonableness and the defendant was preju-
diced as a result. Strickland v Washington, 466 US 668, 688, 692; 104 S
Ct 2052; 80 L Ed 2d 674 (1984); People v Pickens, 446 Mich 298, 338; 521
NW2d 797 (1994). Any amount of additional prison time imposed as a
result of an attorney’s deficient performance has Sixth Amendment
significance. Glover v United States, 531 US 198, 203; 121 S Ct 696; 148
L Ed 2d 604 (2001). Although we accord substantial deference to an
attorney’s strategic judgments, we can identify no strategic reason for
the failure of defendants’ attorneys here to raise such an obvious point of
error that increased the possible minimum prison sentence to which
defendant was exposed. Therefore, defendant has properly stated a claim
of ineffective assistance of counsel.
For the same reasons, defendant has also properly alleged good cause
and actual prejudice, as is necessary to seek relief in a motion for relief
from judgment. MCR 6.508(D)(3). A defendant may establish good cause
for not raising an argument for relief sooner by showing that his
appellate attorney rendered ineffective assistance by failing to raise the
issue in a proper post-trial motion or first-tier appeal. People v Reed, 449
Mich 375, 378; 535 NW2d 496 (1995) (opinion by BOYLE, J.). Appellate
counsel’s failure to “assert all arguable claims” or decision to “winnow
out weaker arguments and focus on those more likely to prevail is not
evidence of ineffective assistance.” Id. at 391. Here, however, as noted, we
50 482 MICH 41 [July
OPINION OF THE COURT

demire and Preuss were incorrectly decided and that

defendant was properly sentenced as a third offense
habitual offender under the plain language of the
statute. We agree.
Our goal in construing a statute is “to ascertain and
give effect to the intent of the Legislature.” People v
Pasha, 466 Mich 378, 382; 645 NW2d 275 (2002). The
touchstone of legislative intent is the statute’s lan-
guage. “If the statute’s language is clear and unambigu-
ous, we assume that the Legislature intended its plain
meaning and we enforce the statute as written.” People
v Weeder, 469 Mich 493, 497; 674 NW2d 372 (2004).
Accordingly, when statutory language is unambiguous,
judicial construction is not required or permitted.12 Id.
Here, the relevant language states that [i]f a person
has been convicted of any combination of 2 or more
felonies or attempts to commit felonies . . . and that
person commits a subsequent felony within this state,”
the person shall be sentenced under the habitual of-
fender laws. MCL 769.11(1). The text clearly contem-
plates the number of times a person has been “con-
cannot identify any excuse for counsel’s failure to raise an obvious error
that would have guaranteed resentencing under Francisco. Because the
nature and strength of the argument are obvious, the omission is not
evidence of a reasonable professional decision to winnow out weaker
arguments.
12
“[O]nly a few provisions are truly ambiguous and . . . a diligent
application of the rules of interpretation will normally yield a ‘better,’
albeit perhaps imperfect, interpretation of the law . . . .” Lansing Mayor
v Pub Service Comm, 470 Mich 154, 166; 680 NW2d 840 (2004). A
provision is not ambiguous just because “reasonable minds can differ
regarding” the meaning of the provision. Id. at 165. “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.” Id. at 166 (citation omitted). See Klapp v United Ins Group
Agency, Inc, 468 Mich 459; 663 NW2d 447 (2003), for an example of truly
ambiguous contractual language.
2008] PEOPLE V GARDNER 51
OPINION OF THE COURT

victed” of “felonies or attempts to commit felonies.”

Nothing in the statutory text suggests that the felony
convictions must have arisen from separate incidents. To
the contrary, the statutory language defies the importa-
tion of a same-incident test because it states that any
combination of convictions must be counted. Indeed,
Stoudemire and Preuss essentially acknowledged the
clear import of the language. Nonetheless, in each case,
the Court explicitly ignored the text, turning instead to
legislative history and the Court’s own views regarding
the intents of the New York and Michigan legislatures.13
In 1987, the Stoudemire Court offered an initial
interpretation of the relevant statutory language by
observing that the original language of Michigan’s
habitual offender statutes, enacted by 1927 PA 175, was
borrowed almost wholesale from New York’s habitual
offender statutes. Stoudemire, supra at 267. Accord-
ingly, the Court referred to the remarks of the New York
statutes’ author, New York State Senator Caleb
Baumes, who opined that the statutes were aimed at
protecting the public from the professional criminal
“ ‘who has been convicted once, twice, three times,
sentenced and served his time and come . . . out and
resumed operations again . . . .’ ” Id. at 268, quoting
Baumes, The Baumes law and legislative program in
New York, 52 ABA Rep 511, 521 (1927) (emphasis added
in Stoudemire). The Court concluded that New York
13
Justice ARCHER vigorously dissented in Stoudemire, arguing that the
clear statutory language did not impose or permit a same-incident test.
Stoudemire, supra at 282, 289 (ARCHER, J., dissenting). Justice ARCHER
observed that, since 1865, this Court has recognized a fundamental rule
of statutory construction: “When the language used in a statute is plain
and unambiguous, a common-sense reading of the provision will suffice.
No interpretation is necessary.” Id. at 280. Justice ARCHER dissented in
Preuss for the same reasons. Preuss, supra at 743 (ARCHER, J., concurring
in part and dissenting in part).
52 482 MICH 41 [July
OPINION OF THE COURT

courts had interpreted the New York statutes in keep-

ing with Baumes’s intent by establishing “that multiple
convictions on the same day constitute only one ‘con-
viction’ for purposes of the habitual offender statute.”
Stoudemire, supra at 269, citing People v Spellman, 136
Misc 25; 242 NYS 68 (1930). The Stoudemire Court
acknowledged, but rejected, other New York cases that
conflicted with Spellman, concluding that “[t]hese
opinions do not reflect awareness of the legislative
intent clearly expressed by Senator Baumes” and ob-
serving that those courts’ construction of the statutes
had been superseded when the New York Legislature
amended the statutes. Stoudemire, supra at 269 n 14.
The Stoudemire Court concluded:
By borrowing New York’s statute in its entirety, the
Legislature indicated that it was motivated by the same
purpose that underlay the New York statute. The Legisla-
ture intended that the habitual offender statute’s fourth-
felony provision, like the parallel provision in the New York
statute, should apply only to a person who had had three
opportunities to reform—who had been convicted and
sentenced and then subsequently committed another felony
for which he was also convicted and sentenced, and then
subsequent to the second conviction committed yet another
felony, for which he was again convicted and sentenced. [Id.
at 271 (emphasis added).]

The Court also compared the intents of legislatures in

other jurisdictions—as interpreted by courts in those
jurisdictions—that had adopted methods for counting
felonies based on whether the offenses grew out of the
same occurrence, were committed on the same day, or
were charged in the same indictment. Id. at 272-276. In
accord, the Court held, consistently “with the legisla-
tive purpose underlying the habitual offender statute,
that multiple convictions arising out of a single incident
may count as only a single prior conviction for purposes
2008] PEOPLE V GARDNER 53
OPINION OF THE COURT

of the statute.” Id. at 278. The Court concluded that, to

the extent that the statutory text read otherwise, the
Court should focus on legislative intent in order to
avoid absurdity, hardship, or injustice. Id. at 266-267.
Significantly, Stoudemire avoided the import of the
statutory text, in part, by dismissing the Legislature’s
1978 revisions of the text in 1978 PA 77. Before 1978,
the relevant portion of MCL 769.11 stated: “A person
who after having been twice convicted within this state
of a felony or an attempt to commit a felony . . . com-
mits any felony within this state, is punishable upon
conviction as [provided in this section].” (Emphasis
added.)14 Despite the revisions, the Stoudemire majority
nonetheless relied on its perceptions of the history of
the original 1927 act. The Court explicitly recognized
that “the phrase ‘If a person has been convicted of 3 or
more felonies,’ arguably has a different import than the
phrase ‘A person who after having been 3 times con-
victed . . . .’ ” Stoudemire, supra at 278. But the Court
dismissed this significant change, concluding that
“when considered in the context of the other changes
made in the statute it is clear that the Legislature
intended only to improve the statute’s grammar, not to
alter its underlying meaning.” Id.15
In 1990, the Preuss Court refined the Stoudemire
holding by clarifying that the prior offenses need not
14
The change was consistent throughout the habitual offender laws.
For instance, before 1978, MCL 769.12 similarly stated: “A person who
after having been 3 times convicted within this state, of felonies or
attempts to commit felonies . . . .” (Emphasis added.)
15
Justice CAVANAGH offers the puzzling assertions that “[t]here has
been no change in the statutory language between 1940 and today that
affects its inapplicability to ‘different counts growing out of the same
act,’ ” quoting People v Podsiad, 295 Mich 541, 547; 295 NW 257 (1940),
and that we “fail[] to identify the changes in the language that would
have had this effect.” Post at 73 n 6, 77.
54 482 MICH 41 [July
OPINION OF THE COURT

“be separated by intervening convictions or sentences,”

but it retained the rule “that a defendant’s prior offenses
must arise from separate incidents.” Preuss, supra at 737.
Specifically, by reference to the fourth offense habitual
offender statute, the Court concluded that
the statute does not require that a fourth offender’s three
prior convictions, the sentences for those convictions, or
the offenses upon which those convictions and sentences
are based, occur in any particular sequence. The statute
requires only that the fourth offense be preceded by three
convictions of felony offenses, and that each of those three
predicate felonies arise from separate criminal incidents.
[Id. at 717 (emphasis added).]

Preuss criticized the Stoudemire Court’s “flawed” in-

terpretation of Michigan’s statutes, concluding that the
Stoudemire Court had erred in its attempt to divine the
intent underlying the New York statutes on which Michi-
gan’s statutes were modeled. Id. at 720, 727-731. For
instance, Preuss observed that Stoudemire had “relied
erroneously on the only New York decision that held that
a fourth offender’s second and third offenses must each
follow conviction and sentence on the earlier offense.” Id.
at 727. Further, the Preuss Court opined that Senator
Baumes’s comments did not establish his intent “on the
issue of the sequentiality of prior convictions.” Id. at 729.
Perhaps most significantly, the Preuss Court observed
that, to the extent that Baumes’s views suggested “that
the fourth offense must follow a completed sentence,” his
views “conflict[ed] with the language of 1927 PA 175,
which literally requires only that the commission of the
fourth offense follow three prior ‘convictions,’ not sen-
tences.” Id. at 730 (emphasis in original).
Thus, the Preuss Court acknowledged that the un-
ambiguous statutory language—“If a person has been
convicted of any combination of 3 or more felonies or
2008] PEOPLE V GARDNER 55
OPINION OF THE COURT

attempts to commit felonies . . . and that person com-

mits a subsequent felony”—refers only to the number
of prior felony convictions and “implies that no particu-
lar sequence for the first three offenses or convictions
was intended.” Id. at 720-721, 730. Nonetheless, the
Court chose to disregard this language, opining that “a
literal reading of a statute may be modified if that
reading leads to a clear or manifest contradiction of the
apparent purpose of the act, or if necessary to correct an
absurd and unjust result . . . .”16 Id. at 721. Accordingly,
the Court “turn[ed] to sources of legislative intent other
than the language to determine whether declining to
read into the statute a sequentiality requirement for
predicate offenses would contradict the Legislature’s
purpose in enacting the statute.” Id. at 721.
In doing so, the Preuss Court erred when it construed
the unambiguous terms of the statute by reference to
legislative history. Weeder, supra at 497. Ironically, not
16
Justice CAVANAGH incorrectly asserts that Preuss “found nothing in
the amended language to compel a change in the longstanding require-
ment that ‘multiple convictions arising out of a single incident may count
as only a single prior conviction under the statute.’ ” Post at 78, quoting
Preuss, supra at 720. To the contrary, both Preuss and Stoudemire
recognized that the new language “arguably has a different import,”
Stoudemire, supra at 278, and “implies that no particular sequence for
the first three offenses or convictions was intended.” Preuss, supra at
721. But in each case, the Court avoided the plain meaning of the
statutory text in favor of legislative history or on the basis of the Court’s
conclusion that the plain language of the text produced an absurd or
unjust result. Preuss, supra at 721; Stoudemire, supra at 266, 271, 278.
There is no need to address the merits of the absurd results rule in
this opinion. Even assuming the existence of such a rule of interpreta-
tion, the result reached here is by no means absurd. A reasonable
lawmaker could easily have intended the result reached here. That is,
such a lawmaker could easily have intended that courts count each
separate felony conviction in determining habitual offender status. There
is nothing at all absurd about treating a defendant who has been
convicted of three felonies as a third offense habitual offender.
56 482 MICH 41 [July
OPINION OF THE COURT

only did it reject the Stoudemire Court’s attempt at the

same task, but its opinion highlights the problems
inherent in such attempts by offering a different judi-
cial construction of the inconclusive “history” of the
very same enactments.17 Further, Preuss failed to
grapple at all with the import of the 1978 revisions,
relying instead—just as the Court had in
Stoudemire—on its impressions of the Legislature’s
intent when adopting the original 1927 language. On
the basis of these impressions, Preuss concluded that
the “legislative history of the statute suggests that it
was directed at the ‘persistent’ or ‘repeat’ offender.”
Preuss, supra at 738. Having reached this conclusion,
the Court then interpreted the statute as if these words
appeared in its text, stating:
17
Indeed, the Preuss Court itself proceeded to examine inconclusive
statements from a report of the Commission of Inquiry Into Criminal
Procedure. Preuss, supra at 721-722, citing State of Michigan, Report of
the Commission of Inquiry Into Criminal Procedure (February 8, 1927).
The Court noted the commission’s desire to improve former repeat-
offender statutes that imposed escalating punishments on the basis of
preceding punishments. Preuss, supra at 722-723. The Court concluded
that the commission’s goals were to “make it tougher for criminals to
avoid apprehension, conviction, and adequate punishment,” to “apply
[habitual offender enhancements] to a broader class of criminals than
they would have applied to had the prior language about prior sentence
been retained,” and to “punish[] repeat offenders harshly.” Id. at 724.
Significantly, the Court acknowledged that the report “does not contain
any express statement concerning the commission’s intent regarding
whether a defendant’s prior convictions, offenses, or sentences must
occur in any particular sequence in order for him to be subject to
fourth-offender penalties.” Id. at 722. Indeed, the new provision in its
original 1927 form—which applied when an offender had been “three
times convicted”—“literally applied to defendants who had previously
been convicted three times before they committed their fourth offense,
even if they had not yet been sentenced on any or all of those prior
convictions.” Id. at 724. Nonetheless, the Court cited the report, among
other authorities, as evidence that the Legislature intended a same-
incident test. Id. at 738.
2008] PEOPLE V GARDNER 57
OPINION OF THE COURT

A common-sense interpretation of these phrases is that

the Legislature did not have in mind the person who had
only one criminal episode in which he managed to commit
several different crimes. Instead, “repeat” suggests some
time interval between crimes, and “persistent” suggests a
criminal who continues in his criminal pursuits after these
intervals. Neither of these concepts may easily be recon-
ciled with an interpretation of the statute which would
allow a court to impose fourth-offender penalties on a
defendant whose three prior convictions arose out of the
same criminal incident. [Id.]

We reject the approaches of both Stoudemire and

Preuss, which run counter to principles of statutory
construction. Indeed, in criticizing Stoudemire, the
Preuss Court reinterpreted the very history on which
Stoudemire relied and reached a different result. Thus,
these two opinions exemplify the problems inherent in
preferring judicial interpretation of legislative history
to a plain reading of the unambiguous text. As we have
stated, construing an unambiguous statute by relying
on legislative history “ ‘[a]t the very most . . . allows the
reader, with equal plausibility, to pose a conclusion of
his own that differs from that of the majority.’ ” Dona-
jkowski v Alpena Power Co, 460 Mich 243, 259; 596
NW2d 574 (1999), quoting Rogers v Detroit, 457 Mich
125, 164; 579 NW2d 840 (1998) (TAYLOR, J., dissenting),
which was overruled by Robinson v Detroit, 462 Mich
439 (2000).18 Further, “not all legislative history is of
18
As perhaps best put by United States Supreme Court Justice
Antonin Scalia,

[c]ommittee reports, floor speeches, and even colloquies between

Congressmen . . . are frail substitutes for bicameral vote upon the
text of a law and its presentment to the President . . . . It is at best
dangerous to assume that all the necessary participants in the
law-enactment process are acting upon the same unexpressed
assumptions. And likewise dangerous to assume that, even with
the utmost self-discipline, judges can prevent the implications they
58 482 MICH 41 [July
OPINION OF THE COURT

equal value . . . .” In re Certified Question, 468 Mich

109, 115 n 5; 659 NW2d 597 (2003). Some historical
facts may allow courts to draw reasonable inferences
about the Legislature’s intent because the facts shed
light on the Legislature’s affirmative acts. For instance,
we may consider that an enactment was intended to
repudiate the judicial construction of a statute, or we
may find it helpful to compare multiple drafts debated
by the Legislature before settling on the language
actually enacted. Other facts, however, such as staff
analyses of legislation, are significantly less useful
because they do not necessarily reflect the intent of the
Legislature as a body. Id. Shifting interpretations of the
intent of the New York Legislature—particularly as
embodied in the comments of a single state senator—
certainly fall into this latter category.
Significantly, defendant here essentially concedes
that a proper interpretation of the habitual offender
statutes precludes the use of a same-incident method
for counting prior convictions. Defendant merely ad-
vances policy considerations and suggests that the
Legislature has acquiesced to the interpretations of the
statutes offered by this Court in Stoudemire in Preuss.
But, as with attempts at divining legislative intent from
legislative history, “legislative acquiescence is an ex-
ceedingly poor indicator of legislative intent.” Dona-
jkowski, supra at 258. Instead, “sound principles of
statutory construction require that Michigan courts
determine the Legislature’s intent from its words, not
from its silence.” Id. at 261; see also People v Hawkins,
468 Mich 488, 507; 668 NW2d 602 (2003) (“As we have
repeatedly stated, the ‘legislative acquiescence’ prin-
see from mirroring the policies they favor. [Thompson v Thomp-
son, 484 US 174, 191-192; 108 S Ct 513; 98 L Ed 2d 512 (1988)
(Scalia, J., concurring) (citations omitted).]
2008] PEOPLE V GARDNER 59
OPINION OF THE COURT

ciple of statutory construction has been squarely re-

jected by this Court because it reflects a critical misap-
prehension of the legislative process.”). As we observed
in Donajkowski, “ ‘[c]ommentators have noted that one
can posit myriad reasons explaining the Legislature’s
failure to correct an erroneous judicial decision . . . .’ ”
Donajkowski, supra at 259, quoting Rogers, supra at
164 n 2 (TAYLOR, J., dissenting). Moreover, “ ‘it should
not be assumed that the Legislature even agrees it has
a duty to correct interpretations by the courts that it
considers erroneous.’ ” Donajkowski, supra at 260,
quoting Rogers, supra at 164-165 (TAYLOR, J., dissent-
ing). Indeed, as Justice TAYLOR observed, “ ‘[i]n Autio v
Proksch Construction Co, 377 Mich 517, 527; 141 NW2d
81 (1966), Justice SOURIS described [the doctrine of
legislative acquiescence] as “a pernicious evil designed
to relieve a court of its duty of self-correction” . . . .’ ”
Donajkowski, supra at 260, quoting Rogers, supra at
165 (TAYLOR, J., dissenting). See Donajkowski, supra at
258-262, for a full discussion.19
When the Legislature’s language is clear, we are
bound to follow its plain meaning. The Legislature is
19
The dissenters would have us engage in a guessing game regarding the
meaning of legislative silence. For instance, Justice CAVANAGH notes that,
before Congress amended 18 USC 924(e)(1) to explicitly include a same-
incident test, courts had already begun grafting such a test onto the statute.
Post at 76-77. But we rarely know whether a legislature’s intent in
amending a statute reflects the intent it originally had when it enacted the
statute. Indeed, when a conforming amendment occurs in the wake of a
judicial decision, for all we know, the judicial decision may have sparked
debate because some legislators perceived the decision as error, but the
legislature may ultimately have concluded that the incorrect interpretation
nonetheless reflected the better current policy. For these reasons, we decline
to second-guess the Legislature when it has spoken unambiguously. It is not
this Court’s role to correct judicially perceived mistakes rooted in the
Legislature’s silence or inaction. To the contrary, our separate duty is to
engage in self-correction when appropriate. Donajkowski, supra at 260.
60 482 MICH 41 [July
OPINION OF THE COURT

fully capable of amending statutory language if it sees

fit to do so. Indeed, legislatures throughout the country
have enacted habitual offender statutes that explicitly
include same-incident methods for counting prior felo-
nies. Arizona’s habitual offender laws, for instance,
explicitly provide: “Convictions for two or more offenses
committed on the same occasion shall be counted as only
one conviction for purposes of this section.” Ariz Rev
Stat Ann 13-604(M) (emphasis added).20 The California
Penal Code provides that “any person convicted of a
serious felony who previously has been convicted of a
serious felony . . . shall receive . . . a five-year enhance-
ment for each such prior conviction on charges brought
and tried separately.” Cal Penal Code 667(a)(1) (empha-
sis added). The Illinois habitual offender laws offer a
particularly helpful comparison because the definition
of habitual offender status includes general language
somewhat similar to that in our own statutes:
Every person who has been twice convicted in any state
or federal court of an offense that contains the same
elements as an offense now classified in Illinois as a Class
X felony, criminal sexual assault, aggravated kidnapping or
first degree murder, and is thereafter convicted of a Class X
felony, criminal sexual assault or first degree murder,
committed after the 2 prior convictions, shall be adjudged
an habitual criminal. [720 Ill Comp Stat 5/33B-1(a) (em-
phasis added).]

The statute also explicitly provides, however, that

“[a]ny convictions which result from or are connected
with the same transaction, or result from offenses com-
mitted at the same time, shall be counted for the
20
See also Ariz Rev Stat Ann 13-604(S) (“A person who . . . stands
convicted of a serious offense . . . , whether a completed or preparatory
offense, and who has previously been convicted of two or more serious
offenses not committed on the same occasion shall be sentenced to life
imprisonment . . . .”) (emphasis added).
2008] PEOPLE V GARDNER 61
OPINION OF THE COURT

purposes of this Section as one conviction.” 720 Ill

Comp Stat 5/33B-1(c) (emphasis added).21
For these reasons, we overrule Stoudemire and Preuss.
“[S]tare decisis is not to be applied mechanically to forever
prevent the Court from overruling earlier erroneous deci-
sions determining the meaning of statutes.” Robinson v
Detroit, 462 Mich 439, 463; 613 NW2d 307 (2000). Rather,
if a case was incorrectly decided, we have a duty to
reconsider whether it should remain controlling law. Id. at
464. In doing so, we “review whether the decision at issue
defies ‘practical workability,’ whether reliance interests
would work an undue hardship, and whether changes in
the law or facts no longer justify the questioned decision.”
Id. These criteria weigh in favor of overruling Stoudemire
and Preuss.
Most significantly, the same-incident test has not
created reliance interests that will be thwarted by
21
Also compare Mo Rev Stat 558.016(3) (“A ‘persistent offender’ is one
who has pleaded guilty to or has been found guilty of two or more felonies
committed at different times.” (emphasis added); Okla Stat tit 21,
§ 51.1(B) (“Felony offenses relied upon shall not have arisen out of the
same transaction or occurrence or series of events closely related in time
and location.” (emphasis added)); 18 USC 924(e)(1) (providing that under
what was formerly titled the federal Armed Career Criminal Act, “[i]n
the case of a person who violates [18 USC 922(g)] and has three previous
convictions by any court referred to in [18 USC 922(g)(1)] for a violent
felony or a serious drug offense, or both, committed on occasions different
from one another, such person shall be fined under this title and
imprisoned not less than fifteen years”) (emphasis added).
These statutes exemplify other legislatures’ use of plain language to
establish same-incident tests. We note them in contrast to the text of
Michigan’s statutes. We do not “read positive meaning into Michigan
legislative silence regarding, for instance, a Missouri statute,” as Justice
CAVANAGH suggests. Post at 76 n 10. Justice CAVANAGH has it backwards.
The Legislature has spoken through its plain language, which we seek to
uphold. It is defendant and our dissenting colleagues who wish to import
a same-incident test where there is none, assuming that the Legislature’s
silence in the wake of Stoudemire and Preuss signifies approval of the test
those cases added.
62 482 MICH 41 [July
OPINION OF THE COURT

overruling Stoudemire and Preuss; overruling these cases

will not cause “significant dislocations” or frustrate citi-
zens’ attempts to conform their conduct to the law. See id.
at 466-467. “[T]o have reliance the knowledge must be of
the sort that causes a person or entity to attempt to
conform his conduct to a certain norm before the trigger-
ing event.” Id. at 467. The nature of a criminal act defies
any argument that offenders attempt to conform their
crimes—which by definition violate societal and statutory
norms—to a legal test established by Stoudemire and
Preuss. Moreover, to the extent that these cases implicate
reliance interests, such interests weigh in favor of over-
ruling them. Michigan citizens and prosecutors should be
able to read the clear words of the statutes and “expect . . .
that they will be carried out by all in society, including the
courts.” Id.
In fact, should a court confound those legitimate citizen
expectations by misreading or misconstruing a statute, it is
that court itself that has disrupted the reliance interest.
When that happens, a subsequent court, rather than holding
to the distorted reading because of the doctrine of stare
decisis, should overrule the earlier court’s misconstruction.
[Id.]

We also note that the factor of practical workability

bears little on our decision to overrule our previous
erroneous interpretations of the habitual offender laws.
The Legislature’s clear directive to count each felony is
no less workable—and indeed is arguably simpler to
apply in practice—than the current, judicially imposed
same-incident rule.

IV. RESPONSE TO THE DISSENTS

Justice CAVANAGH concedes that our interpretation

“may, arguably, be supported by the language of the
habitual-offender statutes . . . .” Post at 73. But his
2008] PEOPLE V GARDNER 63
OPINION OF THE COURT

arguments are rooted in his assertion that there are

“competing, arguably plausible interpretations . . . .”22
Post at 74. He then concludes that, because purported
competing interpretations are possible, it is appropriate
to consult legislative history and apply the rule of lenity.
Post at 75-76. To the contrary, as we have explained and
as defendant essentially concedes, there is nothing
textually ambiguous about the Legislature’s directive to
apply habitual offender sentencing laws when “a person
has been convicted of any combination of 2 or more
felonies or attempts to commit felonies . . . .” MCL
769.11(1).
In his only argument based on the text of the statute,
Justice CAVANAGH asserts that the statute’s use of the
phrase “subsequent felony” indicates that enhance-
ment does not apply to simultaneous criminal acts. Post
at 72.23 We agree that, if an offender is convicted and
sentenced for two simultaneous felonies, neither simul-
taneous conviction may be used to enhance the sen-
tence for the other under the habitual offender statutes.
But Justice CAVANAGH’s extension of this point to imply
a same-incident test misinterprets the statute’s use of
the word “subsequent.” “Subsequent” describes the
sequential relationship between the sentencing felony
and the prior convictions (“If a person has been con-
victed of any combination of . . . felonies or attempts to
commit felonies . . . and that person commits a subse-
quent felony. . . .”). “Subsequent” does not describe a
relationship among the prior convictions.
22
Justice KELLY similarly opines that “the language of the habitual
offender statutes is at least equally supportive of the conclusion that the
statues are inapplicable to multiple convictions arising from the same
act.” Post at 86.
23
Justice KELLY cites Justice CAVANAGH on this point. Post at 86 n 24.
64 482 MICH 41 [July
OPINION OF THE COURT

Justice CAVANAGH also purports to rely on “this

Court’s consistent statements concerning the purpose
of the habitual-offender statutes.” Post at 73. He cites
cases from 1929, the 1940s, and, most recently, 1970
and 1976. Post at 70, 73 n 6, and 73. Yet, as Justice
CAVANAGH acknowledges, the Legislature amended the
statutes in 1978. 1978 PA 77. He ignores the import of
the 1978 revisions, as did the Court in Stoudemire and
Preuss. Thus, he urges that “in more than 150 years, no
Michigan court has ever held, until today, that convic-
tions for multiple crimes committed in a single criminal
transaction count as separate convictions for habitual-
offender purposes.” Post at 78, citing People v Palm, 245
Mich 396, 400; 223 NW 67 (1929). Justice KELLY simi-
larly opines that the “1978 amendments did not alter
the command that ‘multiple convictions arising out of a
single incident may count as only a single prior convic-
tion under the statute . . . .’ ” Post at 86. But, instead of
explaining this conclusory statement, she merely cites
Preuss. Post at 86-87.
We reject the dissents’ suggestions that this Court
should divine legislative intent not from the Legisla-
ture’s enactments, but from precedent of this Court
that preexisted those enactments. Indeed, this Court
addressed this very reasoning when we overruled Dedes
v Asch, 446 Mich 99; 521 NW2d 488 (1994), in Robin-
son. We explained:
The majority in Dedes interpreted the phrase “the
proximate cause” to mean “a proximate cause.” It did this
on the basis of an analysis that not to do so would produce
a marked change in Michigan law, and that the Legislature,
in its “legislative history,” gave no indication that it under-
stood that it was making such a significant change. This
approach can best be described as a judicial theory of
legislative befuddlement. Stripped to its essence, it is an
endeavor by the Court to use the statute’s “history” to
2008] PEOPLE V GARDNER 65
OPINION OF THE COURT

contradict the statute’s clear terms. We believe the Court

had no authority to do this. [Robinson, supra at 459-460.]

The Legislature has no duty to satisfy us that its

legislative enactment is a “good” one. Legislation must
be constitutional; this alone is enough. Once the Legis-
lature has cleared the hurdle of constitutionality, we are
to treat its enactment as law. When, as here, the text
enacted by the Legislature and signed by the Governor
is unambiguous, our duty is to uphold its plain mean-
ing.
Both dissents’ analyses would essentially require the
Legislature to explain to this Court’s satisfaction its
reasons for changing the statutory text. The Legisla-
ture has no such duty to us and, because its text is clear,
it is irrelevant whether the legislators concluded that
this Court misinterpreted the pre-1978 statutes in its
previous decisions or, instead, that a new policy for
counting prior felonies was preferable. Significantly,
various legislators’ reasons for enacting the text may
have differed and may have been rooted in either of
these conclusions. But their agreed-on choice of lan-
guage is controlling. If that language is perfectly forth-
right, our task is simply to implement it. We reject the
implications of the dissents’ views, which would ulti-
mately require the Legislature, when amending laws, to
add redundant explanations for its otherwise plain
language such as: “By X, we mean X. We do not mean
the Supreme Court’s previous interpretations of Y.”
We express no opinion regarding the correctness of
any court’s interpretations of the pre-1978 versions of
the statutes. Questions concerning earlier versions of
the text are not before us. Moreover, to whatever extent
courts correctly divined past legislatures’ intents using
previously enacted language, those intents should not
guide our interpretation of the unambiguous language
66 482 MICH 41 [July
OPINION OF THE COURT

of the current versions of the statutes; the acts of past

legislatures do not bind the power of successive legisla-
tures to enact, amend, or repeal legislation. Studier v
Michigan Pub School Employees’ Retirement Bd, 472
Mich 642, 660; 698 NW2d 350 (2005). In this case, we
acknowledge the Legislature’s explicit changes to the
statutory language and, in doing so, by no means do we
employ “a new view of statutory interpretation,” as
Justice CAVANAGH contends. Post at 78 n 12. To the
contrary, we consider the statute’s plain language, and
it is difficult to imagine how the Legislature could
possibly have written the statute to more clearly indi-
cate that all prior convictions count than by stating that
“[i]f a person has been convicted of any combination of
2 or more felonies or attempts to commit felonies . . .
and that person commits a subsequent felony within
this state, the person shall be punished [as provided in
this section].” MCL 769.11(1) (emphasis added).
Significantly, Justice CAVANAGH’s central contention is
that the habitual offender statutes “are plainly intended
to apply to habitual offenders, individuals who persist in
criminal activity regardless of their prior convictions.”
Post at 70. But the goal of punishing persistent offenders
by no means requires a same-incident test. Rather, the
Legislature apparently and reasonably saw fit to punish
an offender who has committed multiple prior felonies in
a harsher manner than an offender who has committed
only a single prior felony. We see no reason why the
Legislature may not punish persistence by discriminating
in a graduated fashion among those who have committed
a single prior felony, MCL 769.10, those who have com-
mitted two prior felonies, MCL 769.11, and those who
have committed three or more prior felonies, MCL 769.12,
regardless of whether the offender committed the prior
felonies on a single occasion. In sum, Justice CAVANAGH’s
analysis is fundamentally flawed because it offers a judi-
2008] PEOPLE V GARDNER 67
OPINION OF THE COURT

cial construction to deconstruct an unambiguous

statute. Nothing about the statute’s text renders it
susceptible to multiple interpretations and, there-
fore, judicial “construction” is not even permissible.
Further, Justice CAVANAGH repeats the mistakes of the
Court in Stoudemire and Preuss by dismissing the
1978 revisions of the habitual offender laws and,
instead, relying on debatable legislative history and
court cases addressing the previous versions of the
statutes.
Finally, Justice KELLY’s exegesis of the doctrine of
stare decisis misses the mark. As we have already
discussed, the recent Stoudemire and Preuss decisions
are not part of a long line of cases interpreting identical
statutory language; rather, Stoudemire and Preuss pur-
ported to interpret the post-1978 language. Moreover,
the Stoudemire and Preuss decisions are themselves
inconsistent precedents. Justice KELLY would maintain
Preuss as stare decisis because it is workable, free from
absurdity, “not mischievous in practice,” and no
changes in the law or facts undermine it. Post at 89. But
the same things can be said of Stoudemire. Accordingly,
the heart of Justice KELLY’s analysis contradicts her
preference for Preuss, which itself overruled Stou-
demire in part. Indeed, as we have thoroughly dis-
cussed, Preuss exemplifies the need for adhering to
plain statutory language instead of upholding precedent
merely for precedent’s sake. The Preuss Court followed
Stoudemire in choosing to avoid the plain statutory
text. Stoudemire, supra at 278; Preuss, supra at 720-
721. But Preuss then overruled Stoudemire in part after
selectively reinterpreting other states’ caselaw, com-
ments by legislators, and committee reports addressing
the original 1927 Michigan act and the prior New York
act. For these reasons, upholding Preuss certainly
would not serve to “ ‘avoid an arbitrary discretion in
68 482 MICH 41 [July
OPINION OF THE COURT

the courts . . . .’ ” Post at 81, quoting The Federalist No.

78, p 471 (Alexander Hamilton) (Clinton Rossiter ed,
1961). To the contrary, binding the Court to “strict
rules”—such as the tenets of statutory interpretation
—avoids arbitrariness.24 Post at 81. Moreover, as we
have explained, there is nothing “destabilizing” about
today’s decision under Robinson or otherwise. See post
at 80, 82. No undue hardship will result because of
reliance on our previous holdings, nor will we frustrate
citizens’ attempts to conform their conduct to the law.
Robinson, supra at 464, 466-467. In the unlikely event
that those who would commit additional felonies in this
state laid plans for future crime in reliance on receiving
less punishment than the plain language of the habitual
offender statutes prescribes, Justice KELLY correctly
assumes that such reliance garners little sympathy in
our eyes. Post at 82-83 n 11.

V. CONCLUSION

Michigan’s habitual offender laws clearly contem-

plate counting each prior felony conviction separately.
The text of those laws does not include a same-incident
test. This Court erred by judicially engrafting such a
test onto the unambiguous statutory language. Accord-
ingly, we overrule Preuss and Stoudemire.
Defendant was properly sentenced as a third offense
habitual offender because he “ha[d] been convicted
of . . . 2 or more felonies . . . and commit[ted] a subse-
quent felony within this state . . . .” MCL 769.11(1).
Because defendant was properly sentenced, resentenc-
ing is not required on the basis of his claim that he
24
Concerning Justice KELLY’s criticisms of the majority for its supposed
“disregard” for the doctrine of stare decisis, we reference the concurring
statement of Justice MARKMAN in Rowland v Washtenaw Co Rd Comm,
477 Mich 197, 223; 731 NW2d 41 (2007).
2008] PEOPLE V GARDNER 69
OPINION BY WEAVER, J.

received ineffective assistance of counsel. When an

attorney fails to raise “an objection that would have
been supported by a decision which subsequently was
overruled,” a defendant cannot show that he was preju-
diced within the meaning of Strickland. Lockhart v
Fretwell, 506 US 364, 366; 113 S Ct 838; 122 L Ed 2d
180 (1993). Under these circumstances, a focus on
“mere outcome determination” is insufficient because
the result of the proceeding is not fundamentally unfair
or unreliable. Id. at 369. “To set aside a conviction or
sentence solely because the outcome would have been
different but for counsel’s error may grant the defen-
dant a windfall to which the law does not entitle him.”
Id. at 369-370, citing United States v Cronic, 466 US
648, 658; 104 S Ct 2039; 80 L Ed 2d 657 (1984).
Accordingly, we affirm defendant’s sentences. We
deny leave to appeal with respect to defendant’s re-
maining issues because he has failed to meet the burden
of establishing entitlement to relief under MCR
6.508(D).

TAYLOR, C.J., and YOUNG and MARKMAN, JJ., concurred

with CORRIGAN, J.

WEAVER, J. (concurring in result only). I concur with

the result of majority opinion that defendant need not
be resentenced. In this case, defendant did not suffer
any material injustice. Any error in defendant’s sen-
tencing constituted harmless error.

CAVANAGH, J. (dissenting). This case considers the

scope of Michigan’s habitual-offender statutes, MCL
769.10, 769.11, 769.12, and 769.13. Because I believe
this Court has, until today, properly understood legisla-
tive intent and properly applied the habitual-offender
70 482 MICH 41 [July
DISSENTING OPINION BY CAVANAGH, J.

statutes to persons who persist in crime after having

been convicted, I respectfully dissent.
The habitual-offender statutes, enhancing punish-
ment for subsequent convictions, are plainly intended
to apply to habitual offenders, individuals who persist
in criminal activity regardless of their prior convictions.
Defendant was sentenced under MCL 769.11(1) as a
third-offense habitual offender. Defendant argues, and
the prosecution does not contest, that the two underly-
ing felonies supporting this sentence enhancement
arose from the same criminal incident. In fact, there
could not be a clearer case of felonies arising from the
same criminal incident; the two prior convictions of
possession of a firearm during the commission of a
felony and felonious assault arose from the very same
act committed on April 11, 1987.
Applying both of these convictions as predicates for a
third-offense habitual-offender sentence enhancement
would be invalid under People v Preuss, 436 Mich 714;
461 NW2d 703 (1990), People v Stoudemire, 429 Mich
262; 414 NW2d 693 (1987), and the uniform holdings of
this Court since the Legislature enacted the habitual-
offender statutes in 1927.1 Preuss held that, for pur-
poses of the habitual-offender statutes, each of the
predicate felony convictions must “arise from separate
criminal incidents.”2 Preuss, 436 Mich at 717. Preuss
affirmed the same holding found not only in Stou-
1
The current habitual-offender statutes were enacted as 1927 PA 175.
The relevant language was last amended by 1978 PA 77. However, in
People v Palm, 245 Mich 396, 400; 223 NW 67 (1929), this Court observed
that habitual-offender sentence enhancement was not “new” in this
state; such statutes have been in force since 1857. This Court has never,
until today, held that such statutes apply to multiple offenses committed
on one occasion.
2
Preuss specifically addressed MCL 769.12, the habitual-offender
statute addressing three or more prior convictions, but that decision
2008] PEOPLE V GARDNER 71
DISSENTING OPINION BY CAVANAGH, J.

demire, but also in People v Podsiad, 295 Mich 541, 547;

295 NW 257 (1940) (stating that the habitual-offender
statutes are “inapplicable to convictions on different
counts growing out of the same act”), and People v
Lowenstein, 309 Mich 94, 100-101; 14 NW2d 794 (1944)
(holding that multiple convictions from the same crimi-
nal transaction did not subject the defendant to addi-
tional punishment under the habitual-offender stat-
utes). Clearly, the present defendant’s two previous
felony convictions, arising from the same act, do not
arise from separate criminal incidents. Under Preuss,
defendant would be subject to sentence enhancement as
a second-offense habitual offender, not as a third-
offense habitual offender.
The majority overrules Preuss. Ante at 44. The ma-
jority asserts that this Court has failed to understand
the language of the habitual-offender statutes since
such statutes were enacted and, thus, incorrectly failed
to count multiple offenses toward habitual-offender
sentence enhancement. I disagree.
The language of MCL 769.11(1), and the statutory
system of which it is a part, indicates that the Legisla-
ture intended to require that predicate felonies for
habitual-offender sentencing arise from separate crimi-
nal incidents. “It is elementary that statutes in pari
materia are to be taken together in ascertaining the
intention of the legislature, and that courts will regard
all statutes upon the same general subject matter as
part of 1 system.” Dearborn Twp Clerk v Jones, 335
Mich 658, 662; 57 NW2d 40 (1953). MCL 769.10 is the
first in a series of three statutes in the Code of Criminal
Procedure that together allow enhanced penalties on an
applies to all three statutes specifying sentence enhancements in the
common scheme of the habitual-offender statutes.
72 482 MICH 41 [July
DISSENTING OPINION BY CAVANAGH, J.

increasing scale for an offender’s second,3 third,4 and

fourth5 offenses. MCL 769.10 states that “[i]f a person
has been convicted of a felony . . . and that person
commits a subsequent felony,” then that person is
subject to a second-offense enhancement. (Emphasis
added.) MCL 769.11 states that “[i]f a person has been
convicted of any combination of 2 or more felonies . . .
and that person commits a subsequent felony,” then
that person is subject to what is usually termed a
third-offense enhancement. (Emphasis added.) Finally,
MCL 769.12 states that “[i]f a person has been con-
victed of any combination of 3 or more felonies . . . and
that person commits a subsequent felony,” then that
person is subject to what is usually termed a fourth-
offense enhancement. (Emphasis added.)
This system of graduated enhancements for subse-
quent felonies clearly indicates that the Legislature did
not intend habitual-offender sentence enhancement to
apply to simultaneous criminal acts. As this Court long
ago recognized, “[i]t is obvious that the [provisions of
the habitual-offender statutes] relate to convictions for
subsequent felonies. They apply only to persons who,
after having been convicted of one felony, commit an
3
Section 10 of chapter IX of the Code of Criminal Procedure applies to
a second offense and allows a sentence enhancement of no more than
“11/2 times the longest term prescribed for a first conviction” of an offense
otherwise punishable by less than life imprisonment. MCL 769.10(1)(a).
See also MCL 777.21(3)(a).
4
Section 11 of chapter IX of the Code of Criminal Procedure applies to
a third or higher offense and allows a sentence enhancement of up to
twice the longest term otherwise allowed for an offense punishable by
less than life imprisonment. MCL 769.11(1)(a). See also MCL
777.21(3)(b).
5
Section 12 of chapter IX of the Code of Criminal Procedure applies to
a fourth or higher offense and allows a sentence enhancement of up to life
imprisonment for offenses otherwise punishable by imprisonment for
five years or more. MCL 769.12(1)(a). See also MCL 777.21(3)(c).
2008] PEOPLE V GARDNER 73
DISSENTING OPINION BY CAVANAGH, J.

additional crime, and are inapplicable to convictions on

different counts growing out of the same act.” Podsiad,
295 Mich at 546-547 (emphasis added).6
In this case, defendant could not have been sentenced
as a second-offense habitual offender when he was first
convicted of the two underlying crimes committed at
the same time. But now, without intervening convic-
tions, defendant has been sentenced as a third-offense
habitual offender because of simultaneous, not subse-
quent, convictions. The majority interprets the
habitual-offender statutes as applying to multiple, si-
multaneous convictions. While this interpretation may,
arguably, be supported by the language of the habitual-
offender statutes, this Court’s longstanding, uniform
interpretation is at least equally supported by the
language of the statutes. I find the latter more convinc-
ing in light of the plain language of the habitual-
offender statutes, the overall sentencing system pre-
scribed by the Legislature, and legislative history.
The requirement that predicate felonies arise from
separate criminal incidents is supported by this Court’s
consistent statements concerning the purpose of the
habitual-offender statutes. The statutes increase pun-
ishment because of a person’s “ ‘apparent persistence
in the commission of crime . . . .’ ” People v Hendrick,
398 Mich 410, 416; 247 NW2d 840 (1976), quoting
People v Palm, 245 Mich 396, 401; 223 NW 67 (1929).
“The habitual criminal act was passed to provide a
punishment for repeated commissions of felonies.” In re
6
The majority disagrees that the graduated enhancement scheme of
the habitual-offender statutes implies that they are “inapplicable to
convictions on different counts growing out of the same act.” Podsiad,
supra at 547. But Podsiad, decided in 1940, demonstrates that this is
hardly a novel understanding of the statutory scheme. There has been no
change in the statutory language between 1940 and today that affects its
inapplicability to “different counts growing out of the same act.”
74 482 MICH 41 [July
DISSENTING OPINION BY CAVANAGH, J.

Southard, 298 Mich 75, 78; 298 NW 457 (1941).7 Obvi-

ously, persistence and repetition are not apparent when
two convictions arise simultaneously from a single act.
This Court’s statements on the legislative intent
behind the habitual-offender statutes have relied, to
one degree or another, on legislative history. The ma-
jority denounces legislative history as a means of statu-
tory construction. The majority implies that, by use of
legislative history, a statute can be made to say what-
ever its interpreter wishes it to say. Ante at 56-58. If this
were so, one imagines the majority could marshal
evidence from legislative history supporting its inter-
pretation of MCL 769.11. The majority cannot. Such
evidence does not exist. The uniform evidence from
legislative history supports the rule of Preuss, that
crimes committed in a single criminal incident are
counted as one for the purposes of the habitual-offender
statutes.
The United States Supreme Court does not share the
majority’s dim view of consulting legislative history
when there are competing, arguably plausible interpre-
tations of a statute.8 Taylor v United States, 495 US 575;
7
See also Palm, 245 Mich at 401 (stating that the basis for sustaining
the habitual-offender statutes is that “ ‘the Legislature may require the
courts to take into consideration the persistence of the defendant in his
criminal course’ ”) (citation omitted), Lowenstein, 309 Mich at 100-101
(stating that “the fact that defendant was convicted and sentenced on
both counts” does not “result in conviction for two felonies such as to
subject the defendant to additional punishment under the habitual
criminal act”), and People v Hatt, 384 Mich 302, 306-307; 181 NW2d 912
(1970) (stating that the “only purpose of [the habitual-offender statutes]
is to impose a longer sentence because of the apparent persistence by the
defendant in the commission of acts of a criminal nature”).
8
See, e.g., Safeco Ins Co of America v Burr, 551 US 47; 127 S Ct 2201; 167
L Ed 2d 1045 (2007) (extensively reviewing legislative history of the Fair
Credit Reporting Act); Ledbetter v Goodyear Tire & Rubber Co, Inc, 550 US
618; 127 S Ct 2162; 167 L Ed 2d 982 (2007) (referring to legislative
2008] PEOPLE V GARDNER 75
DISSENTING OPINION BY CAVANAGH, J.

110 S Ct 2143; 109 L Ed 2d 607 (1990), is the seminal

case interpreting the scope of what was formerly called
the Armed Career Criminals Act (ACCA), specifically 18
USC 924(e), a federal analog of MCL 769.11 involving
firearms offenses. In Taylor, the Supreme Court iden-
tified plausible alternative interpretations of the scope
of certain statutory language in a particular provision
of the ACCA. The Court then stated: “Before examining
these [plausible, alternative interpretations], we think
it helpful to review the background of [18 USC 924(e)].”
Id. at 581. The Court then conducted a rigorous review
of legislative history related to the statutory language
in question. Id. at 581-590.
I agree with the United States Supreme Court:
legislative history should not be ignored when it may
illuminate a court considering reasonable, alternative
interpretations of a statute. Where, as here, legislative
history singularly supports one arguably reasonable
interpretation of a statute over another, it is a worthy
guide to the proper choice between the interpretations.9
The former interpretation of MCL 769.11, given by this
Court from the enactment of the law in 1927 to today, is
history of title VII of the Civil Rights Act of 1964). In Wilkie v Robbins,
551 US 537, ___; 127 S Ct 2588, 2606 n 12; 168 L Ed 2d 389 (2007), the
Court stated that “we know that Congress patterned the [Hobbs] Act
after two sources of law: ‘the Penal Code of New York and the Field Code,
a 19th-century model penal code.’ ” (Citations omitted.) This legislative
history regarding the statutory sources offered insight to the Court, just
as it did for this Court in Stoudemire (likewise reviewing the background
of Michigan habitual-offender laws adapted from the New York penal
code).
9
While legislative history may support several legislative intentions
directed toward those individuals targeted by the habitual-offender
statutes—punishment, removal from society, or rehabilitation—there is
no such diversity regarding the identity of the individuals to whom the
statutes are meant to apply. Uniformly, the evident intent is to target
habitual offenders, those who persist in criminal activity despite prior
convictions.
76 482 MICH 41 [July
DISSENTING OPINION BY CAVANAGH, J.

reasonable. It is supported by the language of the

statute. It is also uniformly supported by legislative
history.
Further, when there are plausible, competing inter-
pretations of a criminal statute, the rule of lenity should
apply. “ ‘[W]hen there are two rational readings of a
criminal statute, one harsher than the other, we are to
choose the harsher only when Congress has spoken in
clear and definite language.’ ” Scheidler v Nat’l Org for
Women, Inc, 537 US 393, 409; 123 S Ct 1057; 154 L Ed
2d 991 (2003), quoting McNally v United States, 483 US
350, 359-360; 107 S Ct 2875; 97 L Ed 2d 292 (1987). In
other words, when there are two plausible meanings,
the more lenient should apply when years of a person’s
life are at stake. The majority isolates a statute outside
its clear statutory scheme to arrive at the harsher
result. But even if the majority’s interpretation is
plausible, the rule of lenity should apply, and the rule of
Preuss, expressing the consistent holdings of this Court,
should stand.
The majority lists several statutes from other juris-
dictions as examples of habitual-offender statutes with
language clearly requiring that predicate felonies arise
from separate criminal episodes.10 Ante at 60-61. Among
these is the ACCA, a federal habitual-offender statute,
as mentioned. The majority notes that the federal
statute contains express language stating that predicate
10
The majority asserts that these statutes from other states indicate
that the Michigan Legislature “is fully capable of amending its language
if it sees fit to do so.” Ante at 59-60. The majority would read positive
meaning into Michigan legislative silence regarding, for instance, a
Missouri statute, but refuses to do so in light of decades of settled
Michigan law. The Michigan Legislature may well have remained silent
because no Michigan court until today has ever held that multiple
convictions arising from the same act count as multiple offenses for
purposes of habitual-offender enhancement.
2008] PEOPLE V GARDNER 77
DISSENTING OPINION BY CAVANAGH, J.

felonies must be “committed on occasions different

from one another . . . .” 18 USC 924(e)(1). What the
majority fails to observe is that at the time the United
States Supreme Court implied, and the United States
Court of Appeals for the Eighth Circuit held, that
predicate felonies used under federal habitual-offender
statutes must be committed on occasions different from
one another, the statute did not expressly say that.
Rather, the courts reviewed legislative history to con-
clude that this must be the meaning of the statute.
Congress amended the statute after the courts so held,
and, in fact, Congress relied on the court rulings to so
amend the statute.11
The majority repeatedly implies that changes in the
statutory language have altered the habitual-offender
statutes to the extent that they now apply to crimes
committed during the same criminal transaction, but
the majority fails to identify the changes in the lan-
guage that would have had this effect. That is because
there are no such changes or language. The 1978
statutory revisions relate to the time of conviction; they
do not relate to the timing of the commission of the
underlying crimes.
In Preuss, we reviewed the 1927 and the 1978 statu-
tory language. We concluded that the language, both
before and after amendment, required only that the
defendant have been convicted of a felony before com-
mission of the crime for which the enhanced sentence
was being imposed. We revised Stoudemire’s holding
that the sentence for a previous crime must have been
11
See Petty v United States, 481 US 1034 (1987), United States v Petty,
828 F2d 2 (CA 8, 1987), United States v Petty, 798 F2d 1157 (CA 8, 1986),
and 134 Cong Rec S17360, 17370 (daily ed November 10, 1988). For a
history of this development, see also United States v McElyea, 158 F3d
1016, 1018-1020 (CA 9, 1998); Stoudemire, 429 Mich at 275-276.
78 482 MICH 41 [July
DISSENTING OPINION BY CAVANAGH, J.

completed before that crime could be used in count-

ing predicate felony convictions. Thus, analyzing
MCL 769.12, we stated that the statute applies “to
defendants who had previously been convicted three
times before they committed their fourth offense,
even if they had not yet been sentenced on any or all
of those prior convictions.” Preuss, 436 Mich at 724.
Yet we found nothing in the amended language to
compel a change in the longstanding requirement
that “multiple convictions arising out of a single
incident may count as only a single prior conviction
under the statute.” Id. at 720.
The amended language does not relate to the timing
of the commission of the underlying crimes; it relates
only to the timing of the convictions for them. The
majority does not show precisely how the amended
language relates to the timing of the commission of
previous crimes. The majority’s overruling of a century
and a half of Michigan jurisprudence is not based on the
1978 revisions.12 Again, in more than 150 years, no
Michigan court has ever held, until today, that convic-
tions for multiple crimes committed in a single criminal
transaction count as separate convictions for habitual-
offender purposes. See Palm, 245 Mich at 400.
12
It appears that the majority is driven by a new view of statutory
interpretation,

[b]ut even were we to posit for argument’s sake that changes in

interpretive approach take place from time to time, we could not
agree that the existence of such a change would justify reexami-
nation of well-established prior law. Principles of stare decisis,
after all, demand respect for precedent whether judicial methods
of interpretation change or stay the same. Were that not so, those
principles would fail to achieve the legal stability that they seek
and upon which the rule of law depends. [CBOCS West, Inc v
Humphries, ___ US ___, ___; 128 S Ct 1951; 170 L Ed 2d 864
(2008).]
2008] PEOPLE V GARDNER 79
DISSENTING OPINION BY CAVANAGH, J.

The majority asserts that its ruling is “arguably

simpler to apply in practice” than the longstanding
same-incident rule. Ante at 62. While it may be true
that it is easier to count multiple felonies than to
discern whether prior convictions arose from a single
criminal incident, that does not mean that the Legisla-
ture intended the habitual-offender statutes to apply in
that manner. Further, the longstanding rule that con-
victions arising from the same incident be counted as
one conviction for habitual-offender purposes has not
proved difficult to interpret or particularly susceptible
to judicial discretion.13 The rule has been workable
since the statutes were enacted.
The defendant in this case has been sentenced to
imprisonment for five years as a second-offense felony-
firearm offender. MCL 750.227b(1).14 His simultaneous
crimes have been counted for purposes of extending his
sentence. Defendant will spend years, if not a lifetime,
in prison. But defendant should be subject to further
sentence enhancement as a second-offense, not a third-
offense, habitual offender. The habitual-offender stat-
13
I find the majority’s concern regarding judicial discretion somewhat
puzzling because, as the majority observes, the statutes themselves give
courts and prosecutors broad discretion in when and how they apply.
Giving notice of the intent to seek a sentence enhancement for a
defendant who is an habitual offender is at the discretion of the
prosecutor. See MCL 769.13(1). Imposing a sentence enhancement is
discretionary for the sentencing court. See MCL 769.10(1)(a) and (b);
MCL 769.11(1)(a) and (b); MCL 769.12(1)(a) and (b).
14
MCL 750.227b(1) states that a

person who carries or has in his or her possession a firearm when

he or she commits or attempts to commit a felony . . . is guilty of a
felony, and shall be imprisoned for 2 years. Upon a second
conviction under this section, the person shall be imprisoned for 5
years. Upon a third or subsequent conviction under this subsec-
tion, the person shall be imprisoned for 10 years.
80 482 MICH 41 [July
DISSENTING OPINION BY KELLY, J.

utes apply to subsequent, not simultaneous, felonies.

The statutes are intended to enhance the sentences of
persistent criminals, not multiple offenders. Defen-
dant’s 25-year minimum sentence is within the recom-
mended minimum sentence range for a second-offense
habitual offender, but, because the sentencing court
incorrectly counted separate convictions arising from
the same criminal incident, in fact arising from the
same act, resentencing is required. People v Francisco,
474 Mich 82, 89-91; 711 NW2d 44 (2006). I would not
overrule Preuss and the uniform holdings of this Court
that Preuss represents. I would remand this case to the
sentencing court for it to impose a sentence on defen-
dant as a second-offense habitual offender.

KELLY, J., concurred with CAVANAGH, J.

KELLY, J. (dissenting). This is another case in which

the majority disregards the doctrine of stare decisis. I
join Justice CAVANAGH’s well-reasoned dissent. I write
separately to strongly disapprove of the majority’s
efforts to overturn all caselaw with which it disagrees,
however destabilizing the effect may be. This is not a
new area of contention among us. I have previously
argued that the majority’s willingness to overrule pre-
cedent weakens our legal system at its foundation.1
Because of the importance of the issue, it warrants
continuing attention.2
I agree with Justice CAVANAGH that People v Preuss
and its antecedents correctly held that “multiple con-
1
See, e.g., Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 253-257;
731 NW2d 41 (2007) (KELLY, J., concurring in part and dissenting in part).
2
See Welch v Texas Dep’t of Hwys & Pub Transportation, 483 US 468,
494; 107 S Ct 2941; 97 L Ed 2d 389 (1987) (opinion of Powell, J.) (“[T]he
doctrine of stare decisis is of fundamental importance to the rule of
law.”).
2008] PEOPLE V GARDNER 81
DISSENTING OPINION BY KELLY, J.

victions arising out of a single incident may count as

only a single prior conviction under the statute . . . .”3
Obviously, I would not overrule that line of decisions.
Yet, aside from this basic disagreement, I am concerned
that the majority’s approach to the doctrine of stare
decicis tends to turn it on its ear. The majority correctly
observes that stare decisis should not be mechanically
applied to prevent the overruling of previous caselaw.
Then it errs by moving in the opposite direction. In
contravention of the purpose of the doctrine, it me-
chanically applies stare decisis to permit the overruling
of every case it believes was incorrectly decided.
Stare decisis is short for stare decisis et non quieta
movere, which means “stand by the thing decided and
do not disturb the calm.” It has been a part of American
jurisprudence since the country was founded.4 Alex-
ander Hamilton wrote that to “avoid an arbitrary
discretion in the courts, it is indispensable that they
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 them . . . .”5 Early in
the 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.”6
3
People v Preuss, 436 Mich 714, 720; 461 NW2d 703 (1990).
4
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). It
assumed its modern form in the late eighteenth and early nineteenth
centuries. Id. at 55.
5
The Federalist No. 78, p 471 (Alexander Hamilton) (Clinton Rossiter
ed, 1961).
6
Benjamin N. Cardozo, The Nature of the Judicial Process (New
Haven: Yale University Press, 1921), p 149.
82 482 MICH 41 [July
DISSENTING OPINION BY KELLY, J.

The present majority on this Court has adopted what

are commonly known as the “Robinson factors” to
discern whether precedent should be overruled.7 “In
determining whether to overrule a prior case, this
Court first considers whether the earlier case was
wrongly decided.”8 But that is only the first step that
must be taken. The Court must then examine (1)
whether the decision remains workable, (2) the degree
of reliance on the decision, and (3) whether changes in
the law or facts have undermined the basis of the
decision.9 While this analysis appears straightforward,
applying it can be difficult.
First, as demonstrated by the instant case, the jus-
tices of this Court often disagree about whether a
previous decision was incorrectly decided. Yet, in this
Court’s post-Robinson cases, if a majority concludes
that the previous decision was wrong, it will likely be
overruled.10 The remainder of the Robinson analysis
appears to be gratuitous. For instance, in the area of
criminal law, the majority has held that reliance inter-
ests simply are not implicated.11 In addition, the major-
7
Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000).
8
Rowland, 477 Mich at 214, citing Robinson, 462 Mich at 463-468.
9
Robinson, 462 Mich at 464.
10
See, e.g., Rowland, 477 Mich at 215 n 13 (stating that the Robinson
factors did not counsel against overruling precedent); Paige v Sterling
Hts, 476 Mich 495, 512 n 21; 720 NW2d 219 (2006) (stating that “the only
instances in which we might decline to overrule [erroneous precedent]” is
when doing so would produce chaos) (emphasis added); People v Nutt, 469
Mich 565, 591; 677 NW2d 1 (2004) (concluding that the Court is
compelled to overrule erroneous precedent); People v Hickman, 470 Mich
602, 610 n 6; 684 NW2d 267 (2004) (noting that no special justification is
necessary to overrule erroneous precedent); People v Petit, 466 Mich 624,
633-634; 648 NW2d 193 (2002) (stating that courts should overturn
erroneous decisions).
11
Ante at 62; see also People v Kazmierczak, 461 Mich 411, 425; 605
NW2d 667 (2000) (implying that reliance is not worthy of “sympathy” in
2008] PEOPLE V GARDNER 83
DISSENTING OPINION BY KELLY, J.

ity often merges the reliance prong with the initial

determination of whether the precedent was correctly
decided. This last point effectively eviscerates the reli-
ance prong of the Robinson analysis, because a “wrong”
decision supposedly can never generate reliance.12 The
predictable result of the majority’s current approach is
that, once a party meets its initial burden of demon-
strating that a prior decision was wrong, the precedent
is overturned.
This result flies in the face of the doctrine of stare
decisis. Key to the doctrine is the concept that some
precedent should be upheld notwithstanding its flaws.13
the criminal context). The majority fails to recognize that criminals are
not the only people who rely on criminal statutes. For instance, legisla-
tors appropriate funds for the Department of Corrections on the basis of
predictions of how many individuals will be incarcerated. The majority’s
new interpretation of the habitual offender statutes could render previ-
ous calculations inaccurate and appropriations insufficient because
criminals will now be subject to lengthier prison terms.
12
See Pohutski v City of Allen Park, 465 Mich 675, 694; 641 NW2d 219
(2002), quoting Robinson, 462 Mich at 467 (“ ‘[S]hould a court con-
found . . . legitimate citizen expectations by misreading or misconstruing
a statute, it is that court itself that has disrupted the reliance interest.
When that happens, a subsequent court, rather than holding to the
distorted reading because of the doctrine of stare decisis, should overrule
the earlier court’s misconstruction.’ ”).
13
See Hubbard v United States, 514 US 695, 716; 115 S Ct 1754; 131 L
Ed 2d 779 (1995) (Scalia, J., concurring in part) (stating that the decision
to overrule must be supported by “reasons that go beyond mere demon-
stration that the overruled opinion was wrong [otherwise the doctrine
would be no doctrine at all]”); Allied-Bruce Terminix Cos, Inc v Dobson,
513 US 265, 283-284; 115 S Ct 834; 130 L Ed 2d 753 (1995) (O’Connor, J.,
concurring) (reiterating her view that the majority had been wrong in
deciding the same issue in a previous case but joining the majority in this
case because there was no special justification to overrule it); Mathews v
United States, 485 US 58, 66-67; 108 S Ct 883; 99 L Ed 2d 54 (1988)
(Brennan, J., concurring) (“I write separately only because I have
previously joined or written four opinions dissenting from this Court’s
holdings that the defendant’s predisposition is relevant to the entrap-
ment defense. . . . Were I judging on a clean slate, I would still be inclined
84 482 MICH 41 [July
DISSENTING OPINION BY KELLY, J.

As stated by Justice Brandeis: “Stare decisis is usually

the wise policy, because in most matters it is more
important that the applicable rule of law be settled than
that it be settled right.”14
Relying on caselaw from the United States Supreme
Court, many commentators suggest that there exists a
hierarchy of precedents. Under this hierarchy, stare
decisis applies differently to different areas of the law.15
The hierarchy approach gives the greatest weight to
statutory precedents.16 It states that caselaw interpret-
ing statutes should rarely be overturned because the
Legislature is the appropriate branch of government to
correct an erroneous interpretation.17
to adopt the view that the entrapment defense should focus exclusively
on the Government’s conduct. But I am not writing on a clean slate; the
Court has spoken definitively on this point. Therefore, I bow to stare
decisis . . . .”); Scott v Illinois, 440 US 367, 374-375; 99 S Ct 1158; 59 L Ed
2d 383 (1979) (Powell, J., concurring) (“Despite my continuing reserva-
tions about the Argersinger rule, it was approved by the Court in the
1972 opinion and four justices have reaffirmed it today. It is important
that this Court provide clear guidance to the hundreds of courts across
the country that confront this problem daily. Accordingly, and mindful of
stare decisis, I join the opinion of the Court.”).
14
Burnet v Coronado Oil & Gas Co, 285 US 393, 406; 52 S Ct 443; 76
L Ed 815 (1932) (Brandeis, J., dissenting).
15
See, e.g., Sinclair, Precedent, super-precedent, 14 Geo Mason L R 363,
368-370 (2007); Sellers, The doctrine of precedent in the United States of
America, 54 Am J Comp L 67, 68-69, 84-85 (Supp, 2006); Eskridge,
Overruling statutory precedents, 76 Geo L J 1361, 1362-1363 (1988);
Barrett, Statutory stare decisis in the courts of appeals, 73 Geo Wash L R
317 (2005).
16
Neal v United States, 516 US 284, 295; 116 S Ct 763; 133 L Ed 2d 709
(1996); Patterson v McLean Credit Union, 491 US 164, 172-173; 109 S Ct
2363; 105 L Ed 2d 132 (1989); Illinois Brick Co v Illinois, 431 US 720,
736; 97 S Ct 2061; 52 L Ed 2d 707 (1977); see also Fisher, Statutory
construction: Keeping a respectful eye on Congress, 53 SMU L R 49, 51-52
(2000); Barrett, 73 Geo Wash L R at 320-321 (2005).
17
As stated by the United States Supreme Court: “Considerations of
stare decisis have special force in the area of statutory interpretation, for
2008] PEOPLE V GARDNER 85
DISSENTING OPINION BY KELLY, J.

Even if one rejects the hierarchy approach, the

overruling of precedent requires some special justifica-
tion.18 The current majority of the Michigan Supreme
Court, however, has ignored this broadly acknowledged
requirement.19 While Robinson borrowed its analysis
directly from federal law, it failed to incorporate the
special-justification requirement that permeates that
body of law.20 “The most significant aspect of this
‘special justification’ approach is that it requires more
than a conviction that the challenged precedent was
wrongly decided.”21 Requiring a special justification
also promotes predictability in the Court’s application
of stare decisis by making it more difficult to apply the
doctrine selectively.
In the instant case, the majority overrules longstanding
caselaw interpreting a statute without any special justifi-
cation. The majority simply concludes that the earlier
caselaw was incorrectly decided, and, because the caselaw
interpreted a criminal statute, no reliance interests are
implicated. According to the majority, the habitual of-
fender statutes clearly apply to multiple offenses commit-
ted on one occasion. As Justice CAVANAGH explains, this
contradicts more than 150 years of precedent.22
The majority claims that it relies on the 1978 amend-
ment of the habitual offender statutes. It refuses to
here, unlike in the context of constitutional interpretation, the legislative
power is implicated, and Congress remains free to alter what we have
done.” Patterson, 491 US at 172-173.
18
Id.; Arizona v Rumsey, 467 US 203, 212; 104 S Ct 2305; 81 L Ed 2d
164 (1984); People v Hickman, 470 Mich 602, 617 n 6; 684 NW2d 267
(2004) (KELLY, J., dissenting); see also Note, The unworkable unworkabil-
ity test, 80 NYU L R 1665, 1669-1670 (2005).
19
See Hickman, 470 Mich at 617 n 6 (KELLY, J., dissenting).
20
Robinson, 462 Mich at 463-464.
21
Note, 80 NYU L R at 1670 (2005).
22
Ante at 70 n 1, 78.
86 482 MICH 41 [July
DISSENTING OPINION BY KELLY, J.

comment on “the correctness of any court’s interpreta-

tions of the pre-1978 versions of the statutes.”23 Willful
ignorance of prior caselaw does not make it disappear.
Contrary to the majority’s assertion, the post-1978
language of the habitual offender statutes does not
clearly apply to multiple offenses committed on one
occasion. Rather, the language of the habitual offender
statutes is at least equally supportive of the conclusion
that the statutes are inapplicable to multiple convic-
tions arising from the same act. This is because they set
out a “system of graduated enhancements for subse-
quent felonies . . . .”24
Accordingly, the 1978 amendments did not alter the
command that “multiple convictions arising out of a
single incident may count as only a single prior convic-
tion under the statute . . . .”25 Because the amended
statutory language does not compel the result reached
by the majority, it is appropriate to consider this Court’s
understanding of the preamendment statutory lan-
guage. This long history should not be ignored simply
because it does not suit the majority’s analysis.
Nor is it illogical or inconsistent to stand by Preuss
even though Preuss itself rejected, in part, People v
Stoudemire.26 Preuss held, contrary to some of the
reasoning articulated in Stoudemire, that the habitual
offender statutes did not require that a prior conviction
be separated by intervening convictions or sentences.27
However, Preuss specifically maintained Stoudemire’s
holding that a defendant’s prior offenses must arise
23
Ante at 65.
24
Ante at 72.
25
Preuss, 436 Mich at 720.
26
People v Stoudemire, 429 Mich 262; 414 NW2d 693 (1987).
27
Preuss, 436 Mich at 738-739.
2008] PEOPLE V GARDNER 87
DISSENTING OPINION BY KELLY, J.

from separate incidents.28 Thus, Preuss and Stoudemire

are controlling precedent on the point in issue.29
The majority asserts that binding courts to a strict-
constructionist view of statutory interpretation ensures
that courts are not arbitrary in their decision-making.
The majority’s decision in this case belies that claim.
The statutory language at issue does not necessarily
lead to the conclusion reached by the majority. None-
theless, the majority is willing to change a longstanding
rule of law that conflicts with its interpretation. Fre-
quently, fair-minded people will disagree about what
the language of a statute requires. Just because a
majority of the justices on this Court proclaims a
statute free from ambiguity does not make it so. This is
precisely why it is so important that something more
than a notion that an earlier case was incorrectly
decided should be required before precedent is over-
ruled.
Stare decisis is not an ironclad mandate. Because
justices sometimes err, it is appropriate for us to recon-
sider earlier decisions.30 When we do so, however, stare
decisis requires that we give those decisions thoughtful
and thorough consideration before tossing them aside.
Our decision about whether an earlier case must be
overruled should be guided by more than a notion that
the case was incorrectly decided.31
28
Id. at 737.
29
Whether Preuss correctly rejected Stoudemire’s reasoning concern-
ing the timing of the convictions is not at issue here.
30
See Sington v Chrysler Corp, 467 Mich 144, 184; 648 NW2d 624
(2002) (KELLY, J., dissenting).
31
The majority relies on Justice MARKMAN’s concurring statement in
Rowland to counter my argument that it too freely overturns precedent
with which it disagrees. Justice MARKMAN’s primary assertion in Rowland
was that our disagreement is less about our esteem for precedent than
about the merits of the opinions being overruled. Rowland, 477 Mich at
88 482 MICH 41 [July
DISSENTING OPINION BY KELLY, J.

In the matter before us, I would uphold Preuss,

because it was correctly decided. Moreover, the doctrine
of stare decisis dictates that it be upheld. Preuss re-
mains workable, and no changes in the law or facts have
undermined it. No special circumstances exist indicat-
ing that it should be overruled. Because Preuss inter-
preted statutory law, the Court should be especially
hesitant to overrule it. If Preuss misinterpreted legisla-
tive intent, the Legislature can amend the habitual
offender statutes to permit their application to multiple
224. He then cited opinions in which I agreed with the precedent that the
majority overruled. As I stated in Rowland, “[t]his amounts to little more
than a circumstantial ad hominem logical fallacy.” Id. at 257 n 12 (KELLY,
J., dissenting).
Whether I will support precedents with which I disagree is a
question not often brought to light but one I regularly confront. In
recent years, I have frequently disagreed with the majority on the
merits and resolution of issues presented to us. Once I have been
outvoted and dissent, I face whether to reiterate my dissent in future
cases raising the same issues. Often, I accede to the opinion of the
majority. For instance, I recently joined the majority opinion in State
News v Michigan State Univ, 481 Mich 692; 753 NW2d 20 (2008), even
though it cited Michigan Federation of Teachers v Univ of Michigan,
481 Mich 657; 753 NW2d 28 (2008), in which I dissented. Also, in the
past 10 years, I have voted to deny leave in cases too numerous to list
based on decisions reached by the majority, despite my disagreement
with those decisions. This further indicates my frequent willingness to
abide by and maintain precedents with which I disagree.
Contrary to Justice MARKMAN’s belief, our respective records demonstrate
that our disagreements stem frequently not solely from our view of
the merits of issues but from our differing esteem for stare decisis. See
Rowland, 477 Mich at 257 n 12 (KELLY, J., dissenting), citing Todd C. Berg,
Esq., Overruling Precedent and the MSC, The Justices’ Scorecard, Michi-
gan Lawyers Weekly, November 6, 2006.
The majority’s reference to Justice MARKMAN’s accusations in Row-
land concerning my record and views should be seen for what it is, a red
herring, a distraction from the main point: the majority is choosing to
overrule longstanding precedent in this case, as in so many before it, for
wholly inadequate reasons.
2008] PEOPLE V GARDNER 89
DISSENTING OPINION BY KELLY, J.

offenses committed on one occasion.32 Preuss is free

from absurdity, not mischievous in practice, and is
consistent with other adjudications of this Court.33 For
these reasons, as well as those articulated by Justice
CAVANAGH, I dissent.
32
For the reasons stated by Justice CAVANAGH, I disagree with the
majority’s conclusion that the Legislature has amended the statutes to
permit their application to multiple offenses committed on one occasion.
Ante at 77-78.
33
Rowland, 477 Mich at 255 n 8 (KELLY, J., concurring in part and
dissenting in part).
90 482 MICH 90 [July

In re COMPLAINT OF ROVAS AGAINST SBC MICHIGAN

Docket Nos. 134493 and 134500. Argued March 5, 2008 (Calendar No. 7).
Decided July 23, 2008.
William and Sandra Rovas filed a complaint in the Public Service
Commission (PSC) against Ameritech Michigan, now SBC Michi-
gan, about a service fee that the company charged customers after
determining that problems with their telephone service was due to
the wiring on the customers’ premises. The PSC determined that
the company had made false statements to customers and entered
an order that appeared to direct the company not to impose a
service charge for diagnosing or responding to a problem caused by
a customer’s inside wiring without physically entering the custom-
er’s premises. The Court of Appeals, MURRAY, P.J., and DONOFRIO, J.
(NEFF, J., concurring in the result only), affirmed with regard to
the issue of false statements, but remanded the matter to the PSC
for clarification of the apparent ambiguity in its order. Ameritech
Michigan v Michigan Pub Service Comm, unpublished opinion of
the Court of Appeals, issued June 17, 2004 (Docket No. 244742).
On remand, the PSC revised its earlier order to provide that the
company need not enter a customer’s premises every time a
service call is required, but it may not charge customers for the
cost of services it provides to inspect, diagnose, and repair certain
malfunctions, including routine physical checks of its own facili-
ties, when reasonably necessary to diagnose problems attributable
to its own network or exclude its facilities as a possible cause of
disruptions to customer service. The company appealed, arguing
that the PSC’s order precluded the imposition of service charges
related to nonregulated inside-wiring problems. The Court of
Appeals, TALBOT, P.J., and CAVANAGH and METER, JJ., affirmed in
part and remanded for entry of a modified order, holding that
inside-wiring services are not within the scope of the PSC’s
common-carrier regulatory authority, so the PSC could not regu-
late correct determinations by a telephone company excluding its
facilities as the cause of service disruption; however, the PSC may
regulate a telephone company’s activities regarding its own net-
work or facilities and, accordingly, may restrict a telephone com-
pany from charging customers for services to diagnose problems
attributable to the company’s own facilities. In re Complaint of
2008] In re ROVAS COMPLAINT 91

Rovas Against Ameritech Michigan, 276 Mich App 55. Both SBC
and the PSC sought leave to appeal, and the Supreme Court
granted both applications. 480 Mich 977 (2007).
In an opinion by Justice YOUNG, joined by Chief Justice TAYLOR
and Justices CORRIGAN and MARKMAN, the Supreme Court held:
The Court of Appeals erred in upholding the PSC’s interpreta-
tion of the statutory provision that prohibits a telecommunication
service provider from making a false, misleading, or deceptive
statement or representation regarding its service because the plain
language of the provision does not support the PSC’s interpreta-
tion that the provision penalizes all factually inaccurate state-
ments; however, the Court of Appeals properly held that the PSC
did not have authority over wiring inside a customer’s home.
1. The proper standard of review for a court reviewing an
agency’s interpretation of a statute requires respectful consider-
ation of the agency’s interpretation and cogent reasons when
overruling it. However, the court’s primary consideration is
whether the agency’s interpretation is consistent with the plain
language of the statute. While an agency’s interpretation of a
statute may assist in determining the Legislature’s intent when
the law is doubtful or obscure, that interpretation is not binding
on the courts and it cannot conflict with the Legislature’s intent as
expressed in the language of the statute at issue.
2. In concluding that SBC violated the statutory provision that
prohibits a telecommunication service provider from making a
false, misleading, or deceptive statement or representation regard-
ing its service, the PSC did not analyze the language of the statute
or provide a rationale for its conclusion that the term “false”
meant “untrue” or “incorrect.” Therefore, there is little for a
reviewing court to respectfully consider when construing this
provision.
3. Under the doctrine of noscitur a sociis, the fact that the
word “false” appears in the context of the related statutory terms
“misleading” and “deceptive” is the key to determining which of
the multiple definitions of that term the Legislature intended.
Accordingly, only statements or representations that are inten-
tionally false, not mere mistaken communications, violate the
statute.
4. The Court of Appeals properly ruled that, to the extent the
PSC’s order prohibits SBC from charging for services associated
with a problem caused by inside wiring, it is improper. While SBC
may have to inspect its outside wires to confirm that the problem
is with the customer’s inside wiring, the fact remains that if the
92 482 MICH 90 [July

problem is with the inside wiring, then SBC must make a service
call for an inside-wiring problem. Because the PSC cannot regulate
that service, it must amend its order to eliminate that improper
regulation.
Affirmed in part, reversed in part, and remanded to the PSC for
further proceedings.
Justice KELLY, joined by Justices CAVANAGH and WEAVER, con-
curred in Part III of the majority opinion, which upholds the remand
order of the second Court of Appeals panel, but dissented from the
remainder of the opinion because it overturns the PSC’s decision for
no cogent reason on the basis of its misapprehension that the PSC
construed the statutory provision at issue to impose strict liability for
incorrect statements, and because it sends the message that review-
ing courts need not afford agency decisions careful consideration.
Because the second Court of Appeals panel properly deferred to the
PSC after concluding that the PSC’s legal conclusions were sup-
ported by substantial evidence on the record, the decision should be
affirmed and the case should be remanded to the PSC for clarification
of its order with respect to imposition of the service fee.

1. ADMINISTRATIVE LAW — AGENCIES — STATUTORY INTERPRETATION BY AGENCIES

— STANDARD OF REVIEW.

The proper standard of review for a court reviewing an agency’s

interpretation of a statute requires respectful consideration of the
agency’s interpretation and cogent reasons when overruling it,
with the court’s primary consideration being whether the agency’s
interpretation is consistent with the plain language of the statute.

2. STATUTES — TELECOMMUNICATIONS ACT — WORDS AND PHRASES — FALSE

STATEMENTS.
The statutory provision that prohibits a telecommunication service
provider from making a false, misleading, or deceptive statement or
representation regarding its service applies only to statements or
representations that are intentionally false (MCL 484.2502[1][a]).

3. TELECOMMUNICATIONS — PUBLIC SERVICE COMMISSION — REGULATION OF

TELECOMMUNICATIONS PROVIDERS — INSIDE WIRING.
The Public Service Commission may not regulate services that
telecommunications companies provide on wiring inside their
customers’ premises.

Craig A. Anderson, Lisa M. Bruno, and Dickinson

Wright PLLC (by Peter H. Ellsworth, Jeffery V. Stuckey,
Phillip J. DeRosier, and Trent B. Collier) for SBC
Michigan.
2008] In re ROVAS COMPLAINT 93
OPINION OF THE COURT

Michael A. Cox, Attorney General, Thomas L. Casey,

Solicitor General, Michael A. Nickerson, Assistant At-
torney General, and David A. Voges, Assistant Attorney
General Division Chief, for the Public Service Commis-
sion.
Amici Curiae:

Patrick J. Wright for the Mackinac Center for Public

Policy.

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

Sherri A. Wellman and Michael C. Rampe), for the
Telecommunications Association of Michigan.

Stephen J. Gobbo and Kimberly A. Breitmeyer for the

State Bar of Michigan Administrative Law Section.

YOUNG, J. This case concerns judicial review of an

administrative agency’s interpretation of a statute.
This Court has not always been precise in articulating
the proper standard for reviewing such interpretations.
However, in accordance with longstanding Michigan
precedent and basic separation of powers principles, we
hold and reaffirm that an agency’s interpretation of a
statute is entitled to “respectful consideration,” but
courts may not abdicate their judicial responsibility to
interpret statutes by giving unfettered deference to an
agency’s interpretation. Courts must respect legislative
decisions and interpret statutes according to their plain
language. An agency’s interpretation, to the extent it is
persuasive, can aid in that endeavor.
In this case, the Court of Appeals did not properly
review the agency’s interpretation of the statute. De-
spite having understandable reservations about the
agency’s interpretation, the Court affirmed the agen-
cy’s interpretation merely because it was “plausible.”
94 482 MICH 90 [July
OPINION OF THE COURT

However, the plain language of the statute does not

support the agency’s interpretation. Therefore, we re-
verse the Court of Appeals decision to uphold the
agency’s construction of the statute. Under the proper
interpretation of the statute, SBC Michigan (SBC)1 did
not violate the statute as the Public Service Commis-
sion (PSC) had erroneously concluded. However, we
agree with and affirm the conclusion of the Court of
Appeals that the PSC had no jurisdiction over wiring
inside a customer’s home. Thus, we remand this case to
the PSC with the instruction that it must modify its
August 1, 2005, order to eliminate any PSC regulation
of “inside wiring.”
Accordingly, the Court of Appeals judgment is re-
versed in part and affirmed in part and the case is
remanded to the PSC for further proceedings consistent
with this opinion.

FACTS AND PROCEDURAL HISTORY

This case began in April 2001, when William J. and

Sandra M. Rovas, SBC customers, called to report an
interruption in their service. SBC sent a technician,
who checked the wiring outside their home and errone-
ously determined that the problem was inside the
customers’ home. Because the technician believed that
the problem was inside the home, he left a note inform-
ing the customers that they would be charged $71 for
the service call. Eventually, SBC realized the error and
reversed the charge, but not before sending the custom-
ers a bill for the $71.
Despite the fact that SBC reversed the erroneously
sent bill, the customers filed a complaint with the PSC
1
We will use “SBC” to refer to SBC Michigan and its predecessor,
Ameritech Michigan.
2008] In re ROVAS COMPLAINT 95
OPINION OF THE COURT

alleging, inter alia, a violation of § 2502(1)(a)2 of the

Michigan Telecommunications Act, MCL 484.2101 et
seq.3 The PSC agreed with the customers and found
that SBC’s statements to the customers that (1) the
problem was inside their home and (2) they owed SBC
$71 for the service call were both “false,” and therefore,
constituted violations of § 2502(1)(a). For erroneously
sending a retracted $71 bill, the PSC fined SBC $15,000
for violating § 2502(1)(a).4
The Court of Appeals affirmed the PSC decision in an
unpublished opinion per curiam, noting, however, that
given the context of the term “false” in the statute, “it
is plausible this provision is not intended to proscribe a
statement that is simply not true or correct, but is only
intended to proscribe those statements tending to de-
ceive or mislead.”5 Nonetheless, the Court of Appeals
affirmed the PSC because the panel believed it was
2
MCL 484.2502(1)(a). That section provides:

(1) A provider of a telecommunication service shall not do any

of the following:

(a) Make a statement or representation, including the omission

of material information, regarding the rates, terms, or conditions
of providing a telecommunication service that is false, misleading,
or deceptive.
The statute was amended by 2005 PA 235, which added a second
sentence to subsection (a). That sentence states, “As used in this
subdivision, ‘material information’ includes, but is not limited to, all
applicable fees, taxes, and charges that will be billed to the end-user,
regardless of whether the fees, taxes, or charges are authorized by state
or federal law.” The amendment is not at issue here.
3
The other aspects of the customers’ complaint are not before the
Court.
4
The PSC imposed additional penalties for other violations; however,
as noted, those violations are not at issue here.
5
Ameritech Michigan v Pub Service Comm, unpublished opinion per
curiam of the Court of Appeals, issued June 17, 2004 (Docket No.
96 482 MICH 90 [July
OPINION OF THE COURT

“charged with giving great deference to the PSC’s

construction of a statute which the Legislature has
required the PSC to enforce, and therefore the mere
establishment of an alternative interpretation of a
statute to that given by the PSC will not satisfy [SBC’s]
burden of proving the PSC’s interpretation was unlaw-
ful or unreasonable.”6 However, the panel was con-
cerned that a portion of the PSC order implementing its
interpretation was “ambiguous” and remanded for
clarification. Specifically, the panel and SBC were con-
cerned that the order required SBC to enter each
consumer’s home to verify that the problem originated
inside the house. This Court denied SBC’s interlocutory
application for leave to appeal.7
On remand, the PSC clarified its order by noting that
“SBC need not enter a customer’s premises every time
that SBC is called upon to make a service trip”;8
however, SBC may not charge for services “if those
services are reasonably necessary to diagnose problems
attributable to its own facilities or exclude those facili-
ties as a possible cause of service disruptions.”9
In a published opinion, the Court of Appeals affirmed
in part and remanded to require the PSC to issue a
modified order.10 In doing so, the panel relied on federal
law and held that “inside wiring services” (services for
problems with the wiring inside the customer’s home)
were not subject to regulation by the PSC because such
244742), at 2. The instant case has been decided under several different
names, but the parties have not changed.
6
Id. at 3.
7
Ameritech Michigan v Pub Service Comm, 472 Mich 890 (2005).
8
Order of the PSC, August 1, 2005 (Case No. U-13079), p 4 (emphasis
in original).
9
Id.
10
In re Complaint of Rovas Against Ameritech Michigan, 276 Mich App
55; 740 NW2d 523 (2007).
2008] In re ROVAS COMPLAINT 97
OPINION OF THE COURT

problems are not within the PSC’s authority. Thus, the

panel held that the PSC could not regulate “correct
determination[s] by SBC excluding its facilities as the
cause of service disruption” because a correct determi-
nation that the problem originated inside the custom-
er’s home necessarily involves “inside wiring.”11 Both
the PSC and SBC have appealed to this Court, and this
Court granted both applications.12

STANDARD OF REVIEW

As a general proposition, this Court reviews de novo

questions of law, such as the proper interpretation of a
statute.13 However, the primary issue in this case is the
proper standard of review of an administrative agency’s
construction of a statute. That standard of review is
discussed below.

ANALYSIS

This case implicates the powers, and the boundaries

of the powers, of all three branches: the Legislature, the
judiciary, and administrative agencies, which are part of
the executive branch.14 Thus, separation of powers
principles will aid in the analysis of the proper consid-
eration due an administrative agency’s interpretation
of a statute.
The people of the state of Michigan have divided the
powers of their government “into three branches: leg-
islative, executive and judicial.”15 Furthermore, “[n]o
11
Id. at 60.
12
SBC Michigan v Pub Service Comm, 480 Mich 977 (2007).
13
City of Taylor v Detroit Edison Co, 475 Mich 109, 115; 715 NW2d 28
(2006).
14
Straus v Governor, 459 Mich 526, 535; 592 NW2d 53 (1999).
15
Const 1963, art 3, § 2.
98 482 MICH 90 [July
OPINION OF THE COURT

person exercising the powers of one branch shall exer-

cise powers properly belonging to another branch ex-
cept as expressly provided in this constitution.”16
“The legislative power of the State of Michigan is
vested in a senate and a house of representatives.”17
Simply put, legislative power is the power to make
laws.18 In accordance with the constitution’s separation
of powers, this Court “cannot revise, amend, decon-
struct, or ignore [the Legislature’s] product and still be
true to our responsibilities that give our branch only
the judicial power.”19 While administrative agencies
have what have been described as “quasi-legislative”
powers, such as rulemaking authority, these agencies
cannot exercise legislative power by creating law or
changing the laws enacted by the Legislature.20
Since the time of Marbury v Madison,21 interpreting
the law has been one of the defining aspects of judicial
power. “Although we may not usurp the lawmaking
function of the legislature, the proper construction of a
statute is a judicial function, and we are required to
discover the legislative intent.”22 Administrative agen-
16
Id.
17
Const 1963, art 4, § 1.
18
“It is the legislators who establish the statutory law because the
legislative power is exclusively theirs.” Cameron v Auto Club Ins Ass’n,
476 Mich 55, 65; 718 NW2d 784 (2006).
19
Id. at 65-66.
20
While rulemaking has legislative qualities, the power must be
exercised pursuant to valid enabling legislation that does not improperly
delegate “legislative” authority. Taylor v Gate Pharmaceuticals, 468 Mich
1, 10 n 9; 658 NW2d 127 (2003).
21
5 US (1 Cranch) 137; 2 L Ed 60 (1803).
22
Webster v Rotary Electric Steel Co, 321 Mich 526, 531; 33 NW2d 69
(1948) (citations omitted). See also Kelly v Secretary of State, 293 Mich
530, 533; 292 NW 479 (1940) (“[I]n the final analysis the construction of
a statute still remains in the judicial branch of our government.”).
2008] In re ROVAS COMPLAINT 99
OPINION OF THE COURT

cies exercise what have been described as “quasi-judicial”

powers.23 However, such power is limited and is not an
exercise of constitutional “judicial power.” The primary
“judicial” function exercised by administrative agencies
is confined to conducting contested cases, like the one at
issue here. These administrative contested cases re-
semble trials. Constitutionally and statutorily, these
administrative fact-finding exercises are entitled to a
degree of deference defined by statute and our consti-
tution.24 However, fact-finding in an administrative
contested case, much like in a trial before a circuit
court, is a far different endeavor than construing a
statute.

I. REVIEW OF AN ADMINISTRATIVE AGENCY’S

INTERPRETATION OF A STATUTE

With these separation of powers principles in mind,

we now turn to the proper standard, under Michigan
law, for reviewing an agency’s construction of a statute.

A. MICHIGAN JURISPRUDENCE

Unlike the United States Constitution, the Michigan

Constitution specifically recognizes administrative
agencies. Furthermore, the constitution explicitly pro-
vides for judicial review of administrative decisions:
All final decisions, findings, rulings and orders of any
administrative officer or agency existing under the consti-
tution or by law, which are judicial or quasi-judicial and
affect private rights or licenses, shall be subject to direct
review by the courts as provided by law. This review shall
include, as a minimum, the determination whether such
final decisions, findings, rulings and orders are authorized
by law; and, in cases in which a hearing is required,

23
Const 1963, art 6, § 28.
24
Id. See also MCL 462.26(8).
100 482 MICH 90 [July
OPINION OF THE COURT

whether the same are supported by competent, material

and substantial evidence on the whole record. Findings of
fact in workmen’s compensation proceedings shall be con-
clusive in the absence of fraud unless otherwise provided
by law.
In the absence of fraud, error of law or the adoption of
wrong principles, no appeal may be taken to any court from
any final agency provided for the administration of prop-
erty tax laws from any decision relating to valuation or
allocation.[25]

The constitutional provision provides for review to

determine: (1) that the decision is authorized by law,
and (2) if a hearing is required, that the decision is
supported by record evidence.26 However, the provision
does not stand for the proposition that agencies can
assume this Court’s constitutional role as the final
arbiter of the meaning of a statute.
Before evaluating the standard of review applicable to
an agency’s interpretation of a statute, it is helpful to
delineate the agency functions not at issue in this case.
This distinction is important because there are different
standards of review for different agency functions. As
noted earlier, agencies perform both “quasi-legislative”
25
Const 1963, art 6, § 28.
26
The constitutional convention that drafted our constitution ex-
plained the purpose of this provision in its “Address to the People”:

This is a new section recognizing the increased significance

assumed by administrative law in the legal system of the state in
recent years. It provides that decisions, findings, rulings and
orders of administrative officers or agencies which affect private
rights be subject to judicial review.

Excepted in the section are findings of fact in workmen’s

compensation proceedings. These findings would be conclusive in
the absence of fraud, unless otherwise provided by law. Also
excepted are appeals of certain decision of agencies dealing with
administration of property tax laws. [2 Official Record, Constitu-
tional Convention 1961, p 3389.]
2008] In re ROVAS COMPLAINT 101
OPINION OF THE COURT

and “quasi-judicial” functions. First, there is the rule-

making function. A reviewing court must determine
whether the Legislature, in accordance with the sepa-
ration of powers principles discussed, properly del-
egated authority to the agency to promulgate the rule at
issue.27 That question concerns the constitutionality of
the statute, a legal issue that this Court reviews de
novo.28 If the Legislature has properly delegated the
rulemaking authority, then the only question before the
court is whether the agency “has exceeded its authority
granted by the statute.”29
The other agency function not at issue in this case is
fact-finding in contested cases. The constitution requires
that such agency findings be “supported by competent,
material and substantial evidence on the whole record.”30
Review of an administrative agency’s fact-finding is akin
to an appellate court’s review of a trial court’s findings of
fact in that an agency’s findings of fact are entitled to
deference by a reviewing court. In its fact-finding capacity,
the agency has reviewed evidence, such as witness testi-
mony, and it is in the best position to evaluate the
credibility and weight of that evidence. Similar to the clear
error standard of review for circuit courts, under the
constitutional and statutory standards of review, a review-
ing court must ensure that the finding is supported by
record evidence; however, the reviewing court does not
conduct a new evidentiary hearing and reach its own
factual conclusions, nor does the reviewing court subject
the evidence to review de novo.31
27
Gate Pharmaceuticals, supra at 10 n 9.
28
Id. at 5.
29
Dep’t of Natural Resources v Seaman, 396 Mich 299, 314; 240 NW2d
206 (1976).
30
Const 1963, art 6, § 28.
31
Viculin v Dep’t of Civil Service, 386 Mich 375, 392; 192 NW2d 449
(1971).
102 482 MICH 90 [July
OPINION OF THE COURT

Keeping these other administrative functions dis-

tinct from review of an agency’s interpretation of a
statute during a contested case is very important to
ensure that the appellate court applies the proper
standard of review. A review of our own cases suggests
that when courts are unmindful of these differing
functions, they also tend to muddle the distinct stan-
dards of review that apply to each. This Court has
uniformly held that statutory interpretation is a ques-
tion of law that this Court reviews de novo.32 Thus,
concepts such as “abuse of discretion” or “clear error,”
which are similar to the standards of review applicable
to other agency functions, simply do not apply to a
court’s review of an agency’s construction of a statute.
Nonetheless, the Court of Appeals panel in this case
did not apply a de novo standard of review when
assessing the PSC’s interpretation of MCL
484.2502(1)(a). While there are some opinions that
seem to stand for the proposition that agency statutory
interpretations are reviewed for “reasonableness” or an
“abuse of discretion,”33 those standards do not apply to
the interpretation of a statute, and they threaten the
separation of powers principles discussed earlier by
allowing the agency to usurp the judiciary’s constitu-
tional authority to construe the law and infringe on the
Legislature’s lawmaking authority.
However, “[w]e acknowledge that our past case law
has not been entirely consistent regarding the subject of
32
See, e.g., Kaiser v Allen, 480 Mich 31, 35; 746 NW2d 92 (2008);
Brown v Detroit Mayor, 478 Mich 589, 593; 734 NW2d 514 (2007);
Coblentz v Novi, 475 Mich 558, 567; 719 NW2d 73 (2006); City of Taylor,
supra at 115; and In re MCI Telecom Complaint, 460 Mich 396, 413; 596
NW2d 164 (1999).
33
See Champions Auto Ferry, Inc v Pub Service Comm, 231 Mich App
699, 707-708; 588 NW2d 153 (1998); In re MCI Telecom Complaint, supra
at 427.
2008] In re ROVAS COMPLAINT 103
OPINION OF THE COURT

the amount of deference to be given when an adminis-

trative agency with expertise in its field construes a
statute governing the area regulated by the agency.”34
We believe that this is due in large part to the Court’s
failure consistently to use the same articulation of the
proper standard of review for an agency’s interpreta-
tion of a statute and to carefully apply the correct
standards of review for different types of agency action.
This Court announced the proper standard of review
for agency statutory construction more than 70 years
ago in Boyer-Campbell v Fry,35 which dealt with the
proper construction of the General Sales Tax Act. The
Boyer-Campbell Court held that
the construction given to a statute by those charged with
the duty of executing it is always entitled to the most
respectful consideration and ought not to be overruled
without cogent reasons. However, these are not binding on
the courts, and [w]hile not controlling, the practical con-
struction given to doubtful or obscure laws in their admin-
istration by public officers and departments with a duty to
perform under them is taken note of by the courts as an
aiding element to be given weight in construing such laws
and is sometimes deferred to when not in conflict with the
indicated spirit and purpose of the legislature.[36]

This standard requires “respectful consideration” and

“cogent reasons” for overruling an agency’s interpreta-
tion. Furthermore, when the law is “doubtful or ob-
scure,” the agency’s interpretation is an aid for discern-
ing the Legislature’s intent. However, the agency’s
interpretation is not binding on the courts, and it
cannot conflict with the Legislature’s intent as ex-
pressed in the language of the statute at issue.
34
In re MCI Telecom Complaint, supra at 424 n 4.
35
271 Mich 282; 260 NW 165 (1935).
36
Id. at 296-297 (citations and quotation marks omitted).
104 482 MICH 90 [July
OPINION OF THE COURT

Boyer-Campbell remains good law, and it has been

used repeatedly by this Court.37 However, in some of our
later cases, this Court and the Court of Appeals have
employed recitations of standards that do not follow the
language of Boyer-Campbell or apply to review of agen-
cy’s statutory construction. While these recitations do
not necessarily substantively conflict with Boyer-
Campbell, they add to the confusion discussed earlier.38
For example, in Ludington Service Corp v Acting Comm’r
of Ins, this Court affirmed the Court of Appeals decision
to overturn one portion of the agency’s decision because
the agency relied on an interpretation of a statute that
conflicted with the statute’s plain meaning.39 First, the
Court reversed a number of the agency’s factual deter-
minations because they were not supported by “compe-
tent, material, and substantial evidence.”40 The Court
then turned to the statutory interpretation question
37
See Howard Pore, Inc v State Comm’r of Revenue, 322 Mich 49, 66; 33
NW2d 657 (1948); Gen Motors Corp v Erves, 395 Mich 604, 621; 236
NW2d 432 (1975) (COLEMAN, J.) (“It is the responsibility of the judiciary to
interpret legislative intent and this responsibility cannot be delegated.
We agree with the Court of Appeals that consideration should be afforded
to the [agency] interpretation of this section. We cannot abdicate our
ultimate responsibility.”); Id. at 639-640 (WILLIAMS, J.).
38
Justice KELLY cites this statement for the conclusion that this
opinion does not accomplish anything other than assign a specific
name to the standard of review. However, as discussed later in this
opinion, some lower courts, such as the panel in this case, have relied
on one of these varying standards to give nearly unfettered deference
to an agency’s interpretation of a statute. The definitions cited by
Justice KELLY show how such an error could occur. For instance, the
first definition of “deference” is “respectful yielding to the opinion . . .
of another . . . .” Post at 121 n 9 (emphasis added). “Yielding” provides
much more weight to an agency’s interpretation than the “respectful
consideration” to which such interpretations are entitled.
39
444 Mich 481, 497-498 and 498 n 23; 511 NW2d 661 (1994) (emphasis
added).
40
Id. at 493-494, 496-497, and 503.
2008] In re ROVAS COMPLAINT 105
OPINION OF THE COURT

and used the following standard of review in reaching

that conclusion:
Finally, while this Court affords deference to an agen-
cy’s findings of fact, we can always review an agency’s legal
findings. Both the Michigan Constitution and the appli-
cable statute permit this Court to set aside the commis-
sioner’s findings if they are in violation of the constitution
or a statute, or affected by other substantial and material
error of law.[41]

To that end, the Court held that “although this Court

affords an agency some statutory deference, the agen-
cy’s interpretation is not binding on this Court, and
cannot be used to overcome the statute’s plain mean-
ing.”42 This standard does not directly conflict with
Boyer-Campbell because the plain meaning of the stat-
ute still controlled the outcome; however, by referring
to “deference” with regard to both the agency’s fact-
finding and its statutory interpretation, the Court
sowed the seeds of confusion.
Another example of a confusing articulation of the
standard is illustrated in Adrian School Dist v Michi-
gan Pub School Employee Retirement Sys,43 where this
Court held that “[t]he agency must interpret the stat-
ute it administers, and its interpretations are entitled
to great weight.” The case cited for this proposition,
Magreta v Ambassador Steel Co,44 did not actually use
the words “great weight,” but, rather, quoted the gen-
eral Boyer-Campbell standard discussed earlier. While
the Adrian School Dist Court independently construed
the statute, by employing a term such as “great
41
Id. at 503 (quotation marks omitted).
42
Id. at 505 (quotation marks and emphasis omitted).
43
458 Mich 326, 336; 582 NW2d 767 (1998).
44
380 Mich 513, 519; 158 NW2d 473 (1968).
106 482 MICH 90 [July
OPINION OF THE COURT

weight,” this Court again allowed for the possibility

that the judiciary must defer to the agency’s interpre-
tation of the statute.
A similar blurring of standards occurred in Catalina
Marketing Sales Corp v Dep’t of Treasury,45 in which
this Court held that, while it “affords deference to the
construction of statutory provisions by any particular
department of the government and used for a long
period, the department’s interpretation is not binding
on this Court and cannot be used to overcome the
statute’s plain meaning . . . .” Catalina adds the concept
of deference to longstanding agency interpretations to
the general deference referenced in Ludington.46 Like
Ludington, Catalina recognizes the fundamental re-
quirement that the statute’s plain meaning controls.47
Furthermore, the Court rejected the agency’s interpre-
tation because it conflicted with the plain meaning.
Because this Court’s decisions that used imprecise
language still made clear that the plain language of the
statute was the controlling legal consideration, the
varying deference standards articulated in them seem
to have had negligible outcome determinative effect.
45
470 Mich 13, 23-24; 678 NW2d 619 (2004) (quotation marks omit-
ted).
46
This case does not concern a longstanding interpretation of a statute.
Thus, this aspect of Catalina is not before the Court. We note that the
Court’s reluctance to overrule longstanding agency interpretations may
stem from the prudential concerns, such as reliance interests, discussed
in Robinson v Detroit, 462 Mich 439, 463-468; 613 NW2d 307 (2000), with
regard to the doctrine of stare decisis. However, we reserve decision on
this issue until we are presented with a case that requires consideration
of a longstanding agency interpretation in which reliance issues are at
stake.
47
See also Czymbor’s Timber, Inc v Saginaw, 478 Mich 348, 356; 733
NW2d 1 (2007) (“[W]hile the DNR’s interpretation of the statute is given
some measure of deference, its construction cannot conflict with the plain
language of the statute . . . .”).
2008] In re ROVAS COMPLAINT 107
OPINION OF THE COURT

However, by employing words such as “deference,”

which can imply that the judiciary must accede to the
agency’s interpretation of a statute, this Court has
unmistakably added to the confusion in this area of the
law.48
Given this Court’s difficulty in hewing to the correct
standard it set forth in Boyer-Campbell, the Court of
Appeals has understandably relied on some of the
confusing articulations of standards made by this Court
and thereby used the erroneous “deference” or “great
weight” standard to allow agencies improperly to as-
sume the courts’ role as the final arbiter of a statute’s
meaning. For instance, the Court of Appeals panel in
this case quoted In re Michigan Cable Telecom Ass’n
Complaint49 for the proposition that
[a]s a general rule, we will defer to the construction placed
on a statute by the governmental agency charged with
interpreting it, unless the agency interpretation is clearly
erroneous. An agency’s initial interpretation of new legis-
lation is not entitled to the same measure of deference as is
a longstanding interpretation. However, merely establish-
ing that another interpretation of a statute is plausible
does not satisfy a party’s burden of proving by clear and
convincing evidence that the PSC’s interpretation is un-
lawful or unreasonable.

This hybrid “standard of review” is a prime example of

the mixing and matching of the standards of review
applicable to the different functions of an agency. Rely-
ing on this muddled and unduly deferential “standard,”
the panel acceded to an agency interpretation that the
48
The order granting leave to appeal in this case is also an example of
this confusion because we asked the parties to address “whether the
commission abused its discretion in applying this statutory provision to a
carrier’s diagnostic mistakes.” SBC Michigan v Pub Service Comm, 480
Mich 977 (emphasis added).
49
239 Mich App 686, 690; 609 NW2d 854 (2000) (emphasis added).
108 482 MICH 90 [July
OPINION OF THE COURT

panel believed to be contrary to the plain meaning of

the statute. When considering an agency’s statutory
construction, the primary question presented is
whether the interpretation is consistent with or con-
trary to the plain language of the statute. While a court
must consider an agency’s interpretation, the court’s
ultimate concern is a proper construction of the plain
language of the statute.
By using a deferential standard inconsistent with
Boyer-Campbell, the panel below abdicated its judicial
authority to construe statutes. By acceding to the
agency’s interpretation, the panel gave greater consid-
eration to the agency’s interpretation than it would
have given a circuit judge’s construction. Given that
statutory construction is the domain of the judiciary, it
is hard to imagine why a different branch’s interpreta-
tion would be entitled to more weight than a lower
court’s interpretation. As established in Boyer-
Campbell, the agency’s interpretation is entitled to
respectful consideration and, if persuasive, should not
be overruled without cogent reasons. Furthermore, the
agency’s interpretation can be particularly helpful for
“doubtful or obscure” provisions. But, in the end, the
agency’s interpretation cannot conflict with the plain
meaning of the statute.
“Respectful consideration” is not equivalent to any
normative understanding of “deference” as the latter
term is commonly used in appellate decisions. To avoid
further confusion, courts should rely on the Boyer-
Campbell articulation of the standard of review for an
agency’s interpretation of a statute instead of more
recent cases, which have erroneously introduced inap-
propriate concepts such as “deference.” Furthermore,
courts should carefully separate the different agency
2008] In re ROVAS COMPLAINT 109
OPINION OF THE COURT

functions under consideration and apply the proper

standard of review for each.

B. A NOTE ON THE FEDERAL CHEVRON50 DEFERENCE DOCTRINE

Some have urged that this Court adopt the Chevron

deference doctrine, which federal courts use to review
agency interpretations.51 The Chevron test requires the
court to make two inquiries. First, the court must
consider “whether Congress has directly spoken to the
precise question at issue.”52 This inquiry may be dis-
positive because “[i]f the intent of Congress is clear,
that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously ex-
pressed intent of Congress.”53 The separation of powers
principles discussed above provide the basis for this
inquiry and result because “[t]he judiciary is the final
authority on issues of statutory construction and must
reject administrative constructions which are contrary
to clear congressional intent.”54
However, “if the statute is silent or ambiguous with
respect to the specific issue, the question for the court is
whether the agency’s answer is based on a permissible
construction of the statute.”55 The Chevron test for the
permissibility of the agency’s construction differs
slightly depending on whether Congress explicitly or
50
Chevron USA Inc v Natural Resources Defense Council, Inc, 467 US
837; 104 S Ct 2778; 81 L Ed 2d 694 (1984).
51
However, there are other standards that may apply in certain
circumstances. See Skidmore v Swift & Co, 323 US 134; 65 S Ct 161; 89
L Ed 124 (1944), and Auer v Robbins, 519 US 452, 461-463; 117 S Ct 905;
137 L Ed 2d 79 (1997).
52
Chevron, supra at 842.
53
Id. at 842-843.
54
Id. at 843 n 9.
55
Id. at 843.
110 482 MICH 90 [July
OPINION OF THE COURT

implicitly delegated authority to the agency “to fill any

gap” left by Congress. “If Congress has explicitly left a
gap for the agency to fill, there is an express delegation
of authority to the agency to elucidate a specific provi-
sion of the statute by regulation.”56 An explicit delega-
tion largely refers to the authority bestowed by Con-
gress upon agencies to promulgate rules to enforce a
statute.57 On the other hand, an implicit delegation
arises when the legislation does not address a specific
factual situation or where the statute is ambiguous.58
If Congress has given the agency an explicit delega-
tion, then the “regulations are given controlling weight
unless they are arbitrary, capricious, or manifestly
contrary to the statute.”59 When the delegation is im-
plicit, “a court may not substitute its own construction
of a statutory provision for a reasonable interpretation
56
Id. at 843-844.
57
See United States v Morton, 467 US 822, 834; 104 S Ct 2769; 81 L Ed
2d 680 (1984) (“Congress authorized the promulgation of ‘regulations for
the implementation of the provisions of section 659,’ 42 U.S.C.
§ 661(a).”); Schweiker v Gray Panthers, 453 US 34, 43; 101 S Ct 2633; 69
L Ed 2d 460 (1981) (“Congress conferred on the Secretary exceptionally
broad authority to prescribe standards for applying certain sections of
the Act.”); and Batterton v Francis, 432 US 416, 425; 97 S Ct 2399; 53 L
Ed 2d 448 (1977) (“Congress in § 407(a) expressly delegated to the
Secretary the power to prescribe standards for determining what consti-
tutes “unemployment” for purposes of [Aid to Families with Dependent
Children-Unemployed Fathers] eligibility.”).
58
See Immigration & Naturalization Service v Jong Ha Wang, 450 US
139, 144; 101 S Ct 1027; 67 L Ed 2d 123 (1981) (“The crucial question in
this case is what constitutes ‘extreme hardship.’ These words are not
self-explanatory, and reasonable men could easily differ as to their
construction.”), and Train v Natural Resources Defense Council, Inc, 421
US 60, 87; 95 S Ct 1470; 43 L Ed 2d 731 (1975) (“We therefore conclude
that the Agency’s interpretation of §§ 110(a)(3) and 110(f) was ‘correct,’
to the extent that it can be said with complete assurance that any
particular interpretation of a complex statute such as this is the ‘correct’
one.”).
59
Chevron, supra at 844.
2008] In re ROVAS COMPLAINT 111
OPINION OF THE COURT

made by the administrator of an agency.”60 To that end,

the Supreme Court has “recognized that considerable
weight should be accorded to an executive department’s
construction of a statutory scheme it is entrusted to
administer, and the principle of deference to adminis-
trative interpretations.”61
While the Chevron inquiries are comparatively
simple to describe, they have proven very difficult to
apply.62 This Court has never adopted Chevron for
review of state administrative agencies’ statutory inter-
pretations, and we decline to adopt it now.63 The vagar-
ies of Chevron jurisprudence do not provide a clear road
map for courts in this state to apply when reviewing
administrative decisions. Moreover, the unyielding def-
erence to agency statutory construction required by
Chevron conflicts with this state’s administrative law
jurisprudence and with the separation of powers prin-
ciples discussed above by compelling delegation of the
judiciary’s constitutional authority to construe statutes
to another branch of government. For these reasons, we
decline to import the federal regime into Michigan’s
jurisprudence.

II. PROPER INTERPRETATION OF MCL 484.2502(1)(a)

Having determined that agencies’ constructions of

statutes are entitled to respectful consideration, but are
60
Id.
61
Id.
62
Andersen, Against Chevron — a modest proposal, 56 Admin L R 957,
960 (2004) (footnotes omitted) (“The confusions extend to very basic
questions, such as when the doctrine applies, how to distinguish its two
steps from each other, and how to distinguish the test from other
commonly used tests of agency action.”).
63
However, this Court has approvingly cited Chevron in the past. See,
e.g., Empire Iron Mining Partnership v Orhanen, 455 Mich 410, 416; 565
NW2d 844 (1997).
112 482 MICH 90 [July
OPINION OF THE COURT

not binding on courts and cannot conflict with the plain

language of the statute, we now turn to review
§ 2502(1)(a), which provides:
(1) A provider of a telecommunication service shall not
do any of the following:
(a) Make a statement or representation, including the
omission of material information, regarding the rates,
terms, or conditions of providing a telecommunication
service that is false, misleading, or deceptive.

The critical question here was the meaning of “false”

and, thus, whether this statute penalized merely factu-
ally inaccurate statements, as the PSC concluded, or
whether “false” includes a requirement that the inac-
curacy be intentionally communicated. Importantly, the
PSC did not actually provide an analysis for its “con-
struction” of the statutory language. In its February 25,
2002, order, the PSC discussed the parties’ arguments
concerning this section. The hearing referee had found
that the “inaccuracies” at issue stemmed from the
difficulties inherent in diagnosing the problem experi-
enced by the SBC customers. SBC argued that the
“misdiagnosis” in this case was not the type of activity
proscribed by the statute and the hearing referee
agreed. The customers and the PSC staff contrarily
argued that any untrue statement was subject to the
statutory sanctions. The PSC agreed with the custom-
ers and the PSC staff, rejecting the hearing referee’s
application of the statute. In reaching that conclusion,
the PSC first discussed three facts: (1) when the cus-
tomers reported the problem, SBC’s automated system
informed them that they would only be charged for
problems with inside wiring; (2) the technician, without
entering the customers’ house, informed the customers
that the problem was inside and that the customers
owed $71; and (3) the customers received an invoice for
2008] In re ROVAS COMPLAINT 113
OPINION OF THE COURT

$71 from SBC’s automated billing process, even though

SBC had determined that the problem was with the
outside wiring. The PSC then concluded that, “[b]ased on
these facts, the company’s statements to [the customers]
on April 3 and 4, 2001 were false,” and therefore, SBC
violated § 2502(1)(a). However, the PSC did not conclude
that the false statements were intended to deceive.64
In reaching this conclusion, the PSC did not analyze
the language of the statute, nor did it provide a ratio-
nale for its unexplained conclusion that the statutory
term “false” meant “untrue” or “incorrect.” The PSC’s
bald assertion that SBC violated the statute is not a
“construction” of the statute. Therefore, under the
Boyer-Campbell standard, there is little here for any
reviewing court to “respectfully consider.” The PSC,
having failed to offer a construction of its own that
would warrant any consideration, requires that we
provide, as the panel below should have provided, an
interpretation of the plain language of the statute.
The Court of Appeals acknowledged that “false” has
multiple meanings, and the panel listed the following
definitions:
“1. not true or correct; erroneous; wrong: a false state-
ment. 2. uttering or declaring what is untrue; lying: a false
witness. 3. not faithful or loyal; treacherous; hypocritical: a
false friend. 4. tending to deceive or mislead; deceptive: a
false impression . . . .”[65]

The panel indicated that it favored the “tending to

deceive or mislead” fourth definition because of the
statutory context. Furthermore, the panel stated that it
64
Justice KELLY is correct that the PSC held that this was not a case of
“simple misdiagnosis.” However, the PSC did not rule, as Justice KELLY
would, that “[t]hese statements were made with at least a reckless
disregard of their truth or falsity.” Post at 125.
65
SBC Michigan, supra at 2, quoting Random House Webster’s College
Dictionary (1997), p 469.
114 482 MICH 90 [July
OPINION OF THE COURT

found insufficient evidence in the record to support an

intent by SBC to mislead its customers. However,
relying on an erroneous standard of review, the panel
upheld the decision of the PSC because the agency’s
interpretation “was quite literal and certainly not un-
lawful or unreasonable.”
By ignoring the statutory context, the PSC’s implicit
interpretation of “false” was erroneous. “As a general
matter, words and clauses will not be divorced from
those which precede and those which follow. When
construing a series of terms . . . we are guided by the
principle that words grouped in a list should be given
related meaning.”66 In other words, this Court applies
the doctrine of noscitur a sociis, which “stands for the
principle that a word or phrase is given meaning by its
context of setting.”67
The statute prohibits telecommunications providers
from making “a statement or representation . . . that is
false, misleading, or deceptive.”68 The context of the
word “false” is the key to determining which of the
multiple definitions of that term the Legislature in-
tended, and the other related statutory terms—
“misleading” and “deceptive”—provide that context.
“Mislead” means “1. to lead or guide in the wrong
direction. 2. to lead into error of conduct, thought, or
judgment; lead astray,”69 and “deceive” means “to mis-
lead by a false appearance or statement; trick.”70 Thus,
66
Griffith v State Farm Mut Auto Ins Co, 472 Mich 521, 533; 697 NW2d
895 (2005) (internal citations and quotation marks omitted).
67
Koontz v Ameritech Services, Inc, 466 Mich 304, 318; 645 NW2d 34
(2002) (citations and quotation marks omitted).
68
MCL 484.2502(1)(a).
69
Random House Webster’s College Dictionary (1997). “Misleading”
simply means “tending to mislead; deceptive.” Id.
70
Id. The statutory word “deceptive” means “likely to deceive; capable
of deception.” Id.
2008] In re ROVAS COMPLAINT 115
OPINION OF THE COURT

both “mislead” and “deceive” require the perpetrator

intentionally to trick or lead astray his or her victim.
These definitions provide insight into which “related
meaning” of “false” the Legislature intended. The defi-
nition of “false” that has a related meaning to the other
descriptive statutory terms is the fourth definition cited
by the Court of Appeals: “tending to deceive or mislead;
deceptive.” Thus, a mere mistaken communication
would be insufficient to make a “false” statement
penalized under this statute. The fact that the SBC’s
technician’s statement was simply “untrue” or that a
bill mistakenly sent in reliance on the technician’s
incorrect diagnosis constitute insufficient proof to es-
tablish falsity required by the statute.71
Thus, we conclude that only statements that are
intentionally false qualify as violations of the statute,
and the Court of Appeals statutory construction deter-
mination and the PSC’s conclusion that a statutory
violation occurred must be reversed.

III. THE PROPRIETY OF THE COURT OF APPEALS REMAND ORDER

In its first opinion, the Court of Appeals held that the

remedy provision of the PSC’s February 25, 2002, order
71
In its brief, the PSC suggests that § 2502(1)(a) is a strict liability
provision. To support its position, the PSC points to MCL 484.2506(3),
which provides for a “bona fide error” exception to MCL 484.2505 and
484.2507, and reasons that the lack of such an exception in § 2502(1)(a)
means that the Legislature intended to punish mere mistakes under that
section. MCL 484.2505(1) provides that “[a]n end user of a telecommunica-
tions provider shall not be switched to another provider without the
authorization of the end user.” MCL 484.2507(1) provides that “[a] telecom-
munications provider shall not include or add optional services in an
end-user’s telecommunications service package without the express oral or
written authorization of the end-user.” The problem with the PSC’s analysis
is that, as discussed above, the plain language of § 2502(1)(a) does not
prohibit mere mistakes or “bona fide errors.” Therefore, it would be
unnecessary for the Legislature to provide such an exception to § 2502(1)(a).
116 482 MICH 90 [July
OPINION OF THE COURT

was ambiguous and remanded for clarification. The

Court was unsure whether the PSC required SBC to
enter each customer’s home to verify that the problem
stemmed from wiring inside the customer’s home. On
remand, the PSC ruled:
The Commission should clarify the discussion section of
its February 25, 2002 order to indicate that SBC need not
enter a customer’s premises every time that SBC is called
upon to make a service trip, but that it may not impose
charges to recover the cost of services it provides to inspect,
diagnose, and repair malfunctions covered by its tariff
obligation, including the cost of conducting routine physi-
cal checks of its own facilities, in response to complaints or
inquiries, if those services are reasonably necessary to
diagnose problems attributable to its own facilities or
exclude those facilities as a possible cause of service dis-
ruptions.[72]

In its second opinion, the Court of Appeals cited

federal authority73 for the proposition that states were
generally precluded from regulating services provided
by telephone companies for “inside wiring.” However,
states are free to regulate the telephone companies’
networks or “outside wiring.” On the basis of these
principles, the panel took issue with the portion of the
order directing “SBC not to impose charges for services
that ‘exclude [SBC’s] facilities as a possible cause of
service disruptions.’ ”74 The Court held that this sen-
tence violated the federal regulations because “a correct
determination by SBC excluding its facilities as the
72
Order of the PSC, August 1, 2005 (Case No. U-13079), p 4 (emphasis
in original).
73
In re Rovas Complaint, supra at 59, citing Detariffing the Installa-
tion & Maintenance of Inside Wiring, 51 Fed Reg 8,498, 8,499 (March 12,
1986), & In re Detariffing the Installation and Maintenance of Inside
Wiring, 7 FCC Rec 1,334, 1,339 (November 21, 1991).
74
In re Rovas Complaint, supra at 60.
2008] In re ROVAS COMPLAINT 117
OPINION OF THE COURT

cause of service disruption inherently constitutes a

correct determination that the disruption was caused
by the customer’s inside wiring.”75 The panel remanded
to the PSC to remove any regulation of “inside wiring,”
including fees attributable to correct determinations
that the problem originated with the customer’s inside
wiring.
The parties agree that SBC cannot charge for ser-
vices performed for “outside wires” and that the PSC
cannot regulate services on “inside wiring.” The issue is
whether the PSC’s August 1, 2005, order is a permis-
sible regulation of “outside wires” or an impermissible
regulation of “inside wires.” We agree with the Court of
Appeals that, to the extent the order prohibits SBC
from charging for services associated with a problem
caused by inside wiring, it is improper. While SBC may
have to inspect its outside wires to confirm that a
problem is with the customer’s inside wiring, the fact
remains that if the problem is with the inside wiring,
then SBC had to make a service call for an inside wiring
problem. The PSC cannot regulate that service and
must amend its order to eliminate that improper regu-
lation.

CONCLUSION

With today’s decision, we reaffirm the Boyer-

Campbell standard of review, which provides a long-
standing and clear standard for appellate courts to
apply to an administrative agency’s interpretation of a
statute. In accordance with separation of powers prin-
ciples and this Court’s older cases, we hold that agency
interpretations are entitled to respectful consideration,
but they are not binding on courts and cannot conflict
75
Id.
118 482 MICH 90 [July
OPINION BY KELLY, J.

with the plain meaning of the statute. While the agen-

cy’s interpretation may be helpful in ascertaining the
legislative intent, courts may not abdicate to adminis-
trative agencies the constitutional responsibility to con-
strue statutes. Giving uncritical deference to an admin-
istrative agency would be such an improper abdication
of duty.
Applying the proper standard to the statute at issue
in this case, the PSC’s interpretation is erroneous, as
was the panel’s undue deference to that construction.
The Court of Appeals alternative interpretation (which
it did not adopt) represents the proper interpretation of
this statute. Under the appropriate interpretation of
the statute, merely incorrect statements made with no
intent to deceive are not subject to sanctions. Addition-
ally, the PSC must modify its order to incorporate a
correct construction of the statute and eliminate any
regulation of inside wiring.

TAYLOR, C.J., and CORRIGAN and MARKMAN, JJ., con-

curred with YOUNG, J.

KELLY, J. (concurring in part and dissenting in part).

I concur in Part III of the majority opinion, which
upholds the propriety of the remand order of the second
Court of Appeals panel. I dissent from the rest of the
majority opinion because it is founded on a misunder-
standing of the decision of the Public Service Commis-
sion (PSC).
The majority holds that, in Michigan, an agency’s
construction of a statute is entitled to “respectful
consideration” and “should not be overruled without
cogent reasons.”1 This standard of review, according to
the majority, is different from giving agency interpreta-
1
Ante at 108.
2008] In re ROVAS COMPLAINT 119
OPINION BY KELLY, J.

tions of statutes deference or great weight. I see no

meaningful distinction between the various names the
Court has given to the proper standard of review over
the years. However, I see a noticeable lowering of the
standard in the majority’s actual application of it in this
case.
The majority overturns the PSC’s decision for no
cogent reason. The agency’s decision was not based on
the erroneous statutory construction that the majority
attributes to it. This case risks sending the unfortunate
message that, from now on, reviewing courts need not
afford agency decisions any careful consideration at all.
I cannot join the majority in sending this message.
I would uphold the PSC’s decision because it cor-
rectly applied MCL 484.2502(1)(a)2 to prohibit state-
ments made with reckless disregard of their truth or
falsity or with knowledge of their falsity. It comports
with the meaning of the statute. Consequently, it is
entitled to great weight, deference, or the most respect-
ful consideration, regardless of the name this Court
gives to the proper standard of review of an agency’s
statutory interpretation.
The record supports the PSC’s conclusion. Ameritech
Michigan, the predecessor of SBC Michigan, charged a
$71 service fee for an inside wiring problem without
ascertaining that the customers’ loss of service origi-
nated inside the home. It billed the fee even after
2
The Michigan Telecommunications Act (MTA), MCL 484.2101 et seq.,
states at MCL 484.2502:

(1) A provider of a telecommunication service shall not do any

of the following:

(a) Make a statement or representation, including the omission

of material information, regarding the rates, terms, or conditions
of providing a telecommunication service that is false, misleading,
or deceptive.
120 482 MICH 90 [July
OPINION BY KELLY, J.

learning that the loss of service was due to a problem in

its own network. The PSC correctly concluded that the
service fee was predicated on false statements. The
agency’s conclusions, supported as they are by facts and
law, should not be rejected.

I. THE STANDARD OF REVIEW OF STATUTORY INTERPRETATIONS

BY ADMINISTRATIVE AGENCIES

The majority borrows its conclusion that an agency’s

interpretation of a statute is entitled to “respectful
consideration” from this Court’s decision in Boyer-
Campbell Co v Fry.3 It suggests that this standard of
review cannot exist by any other name. It specifically
rejects other decisions of the Court in which the stan-
dard of review was to “defer” to agency interpretations,
to accord them “great weight,” or to review their
“reasonableness.”4
Yet, the Court in Boyer-Campbell used these very
terms interchangeably. It said:
Legislative resolutions are not law, although they are
entitled to respectful consideration, . . . and “the construc-
tion given to a statute by those charged with the duty of
executing it is always entitled to the most respectful con-
sideration and ought not to be overruled without cogent
reasons.” However, these are not binding on the courts, and
“[w]hile not controlling, the practical construction given to
doubtful or obscure laws in their administration by public
officers and departments with a duty to perform under
them is taken note of by the courts as an aiding element to
be given weight in construing such laws and is sometimes
deferred to when not in conflict with the indicated spirit
and purpose of the legislature.”[5]

3
Boyer-Campbell Co v Fry, 271 Mich 282; 260 NW 165 (1935).
4
Ante at 103-107.
5
Boyer-Campbell, 271 Mich at 296-297 (emphasis added; citations
omitted).
2008] In re ROVAS COMPLAINT 121
OPINION BY KELLY, J.

The Court concluded in Boyer-Campbell that the inter-

pretation of the general sales tax act made by the state
board of administration was “reasonable and sensible.”6
Boyer-Campbell does not stand for the proposition
that the standard of review of agency decisions should
be known by one name only. Nor does the fact that, over
the years, the Court has used various terms to denote
the proper standard of review indicate that it has been
inconsistently applied. As the majority acknowledges,
regardless of the language used, “this Court’s deci-
sions . . . made clear that the plain language of the
statute was the controlling legal consideration.”7 The
actual name given to the standard of review has “neg-
ligible outcome-determinative effect,”8 as long as the
standard is properly applied.
There is nothing shocking about the Court deferring
to an agency’s interpretation of a statute that the
agency administers and that falls within its particular-
ized expertise. “Deference” is simply another name for
respectful consideration.9 Under a properly applied
standard of review, an agency’s statutory interpretation
6
Id. at 300.
7
Ante at 106.
8
Ante at 106.
9
Random House Webster’s College Dictionary (2001) defines “defer-
ence” as “1. respectful yielding to the opinion . . . of another . . . . 2.
respectful or courteous regard.” The majority suggests that “yielding” to
an agency interpretation of a statute has led to “nearly unfettered
deference” by lower courts. Ante at 104 n 38. It is true that the first
Court of Appeals panel in this case misunderstood the PSC’s decision and
deferred to it for the wrong reasons. However, when lower courts
correctly construe an agency decision, as the second panel did, they
should defer to the agency’s interpretation of a statute that comports
with the Legislature’s intent. Were courts never to defer to agency
interpretations, appeals from those interpretations would be encouraged
in the hope that courts might be persuaded to ignore the interpretations
entirely. That is precisely what happened in this case.
122 482 MICH 90 [July
OPINION BY KELLY, J.

is entitled to deference when it comports with the

Legislature’s intent as expressed in the plain language
of the statute. Of importance is not what the Court calls
the standard of review, but how it applies it.

II. THE PSC’S CONSTRUCTION OF MCL 484.2502(1)(a)

The majority purports to review the PSC’s construction

of MCL 484.2502(1)(a) de novo. As it acknowledges, the
PSC never specifically interpreted the meaning of the
phrase “false, misleading, or deceptive” in its decision.10
But it did apply the statute to the facts of the case, as it
is entitled to do in the case of an unambiguous statute.11
The meaning that the PSC accorded to the phrase
“false, misleading, or deceptive” can be inferred indi-
rectly from the legal conclusions it drew from the facts.
Although the majority recites the PSC’s legal conclu-
sions, it does not review them independently. Rather, it
relies on the review of them made by the first Court of
Appeals panel, and, in so doing, it repeats that panel’s
mistakes.12 The majority reviews the decision of the
first Court of Appeals panel de novo, but it does not
directly review the decision of the PSC.
The first Court of Appeals panel concluded that the
PSC understood “false” to mean “not true or correct”
and, consequently, deemed a “false” statement to mean
a simple mistake.13 In essence, the panel assumed that
10
Ante at 113.
11
“This Court has consistently held that when the statutory wording is
unambiguous, it need only be applied.” Ludington Service Corp v Acting
Comm’r of Ins, 444 Mich 481, 497 n 22; 511 NW2d 661 (1994) (citations
omitted).
12
Ante at 113-114.
13
Ameritech Michigan v Pub Service Comm, unpublished opinion per
curiam of the Court of Appeals, issued June 17, 2004 (Docket No.
244742), p 2.
2008] In re ROVAS COMPLAINT 123
OPINION BY KELLY, J.

the PSC interpreted MCL 484.2502(1)(a) as imposing

strict liability for any inaccurate statement, no matter
how innocently made. The majority adopts this erroneous
interpretation of the agency’s decision.14 It concludes that
the PSC’s statutory interpretation is erroneous be-
cause, in the phrase “false, misleading, or deceptive,”
which is its proper context, the word “false” does not
mean “untrue.” The majority concludes that it means
“intentionally false” or “intended to deceive.”15 It de-
rives its interpretation of “false” from the dictionary
definitions of the words “misleading” and “deceptive.”16
But the majority’s conclusion that the statute refers
to untrue statements made with an intent to deceive
falls short of the mark. This occurs because it collapses
two distinct elements of “deceit” into the phrase “intent
to deceive”: (1) knowledge or reckless disregard of the
falsity of a statement and (2) intent that the statement
cause detrimental reliance.
“Deceit,” also known as “false or fraudulent misrep-
resentation,” is a legal term of art with a long history in
the common law. Legal terms of art are generally
accorded their established meaning in the law.17 In
addition, statutes are construed so as not to abolish by
implication “well-settled common-law principles.”18
14
Ante at 113. On appeal, SBC argued for the same reading. Surpris-
ingly, the Attorney General’s office, which represented the PSC before
this Court, contended that MCL 484.2502(1)(a) imposes strict liability,
reaching even innocent mistakes. The strict liability argument that it
advanced in this Court was not made before the PSC.
15
Ante at 113, 115.
16
Ante at 114-115.
17
“A legal term of art is a technical word or phrase that has acquired a
particular and appropriate meaning in the law. It is, in a statute, to be
construed and understood according to such meaning.” People v Law, 459
Mich 419, 425 n 8; 591 NW2d 20 (1999), citing MCL 8.3a.
18
Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich
638, 652; 513 NW2d 799 (1994).
124 482 MICH 90 [July
OPINION BY KELLY, J.

Black’s Law Dictionary defines “fraudulent misrep-

resentation” as “[a] false statement that is known to be
false or is made recklessly—without knowing or caring
whether it is true or false—and that is intended to
induce a party to detrimentally rely on it.”19 In Michi-
gan, fraudulent representation requires
“(1) [t]hat defendant made a material representation; (2)
that it was false; (3) that when he made it he knew that it
was false, or made it recklessly, without any knowledge of
its truth and as a positive assertion; (4) that he made it
with the intention that it should be acted upon by plaintiff;
(5) that plaintiff acted in reliance upon it; and (6) that he
thereby suffered injury.”[20]

As these definitions make clear, the intent element of

deceit consists of (1) knowledge of falsity or reckless
disregard of the truth or falsity of a statement, and (2)
an intent that a person detrimentally rely on the
statement.
The PSC’s decision shows that the agency did apply
the statute according to the established rules for false
representation. The PSC applied the statute to the
following facts: (1) the customers were told that the $71
service fee would be applied only if the problem was
caused by inside wiring, (2) without so much as enter-
ing the home, the technician left a tag stating that the
problem was with the inside wiring and the customers
owed a $71 service fee, and (3) the customers subse-
quently received a $71 bill for the service call, even
though, in the meantime, SBC had made several repairs
to its own network that solved the customers’ problem.
19
Black’s Law Dictionary (7th ed).
20
Hi-Way Motor Co v Int’l Harvester Co, 398 Mich 330, 336; 247 NW2d
813 (1976), quoting Candler v Heigho, 208 Mich 115, 121; 175 NW 141
(1919).
2008] In re ROVAS COMPLAINT 125
OPINION BY KELLY, J.

The PSC expressly stated that the $71 service fee did
not result from a “simple misdiagnosis.” Rather, it con-
cluded that SBC’s “propensity for assuming that the
problem is with the inside wiring whenever a service
technician finds a dial tone at the network interface, and
for assessing the $71 charge without first verifying that
the problem actually arises from within the customer’s
premises can lead to repeated violations of the MTA.”
Because the PSC expressly declined to characterize the
problem as a simple misdiagnosis, it is clear that it did not
interpret the statute as imposing strict liability for simple
mistakes. It deemed SBC’s statements false because SBC
initially imposed the $71 service fee without knowing that
the problem the customers had complained of originated
inside the customers’ home. And it reimposed the fee after
it ascertained that the problem was in its own network,
not inside the home. These statements were made with at
least a reckless disregard of their truth or falsity. They
were made with an intent to cause the customers to pay
the $71 service fee in reliance on SBC’s representations
that the problem originated inside the home. Thus, they
were made with an intent to deceive.
Had the PSC expressly interpreted the statute, or
had it stated its conclusions differently, it might have
avoided the confusion its decision has engendered.
However, it cannot be seriously faulted for not specifi-
cally stating that it applied the statute according to the
rules of deceit. Those rules are well established and
clearly deducible from the agency’s legal conclusion.
The agency concluded that SBC assumes that a
problem arises inside a customer’s home without suffi-
ciently testing its own network and without verifying
that the problem is inside the home. The underlying
premise of this conclusion is that SBC charges the
service fee regardless of its lack of knowledge of the true
126 482 MICH 90 [July
OPINION BY KELLY, J.

origin of the customer’s loss of service. Such a charge is

in reckless disregard of the truth or falsity of its
assumption that the problem is inside the home.21
The Court misconstrues the agency’s application of the
statutory provision, and a misconstruction cannot consti-
tute a “cogent reason” for overturning an agency’s ruling.

III. THE RECORD EVIDENCE SUPPORTING THE PSC’S DECISION

In light of the fact that the PSC applied the statute

correctly, the question becomes whether its factual
findings are “supported by competent, material and
substantial evidence on the whole record.”22 If sup-
ported by such evidence, they are entitled to deference,
as the majority concedes.23
21
The majority acknowledges that the PSC held that this was not a
case of “simple misdiagnosis,” but it claims that the PSC never found
that SBC charged the fee in reckless disregard of the truth or falsity of its
assumption about the origin of the problem. Ante at 113 n 64. The
majority fails to offer any other interpretation of the PSC’s legal
conclusions, which were based on SBC’s inadequate diagnostic proce-
dures rather than on the individual technician’s misdiagnosis.
22
Const 1963, art 6, § 28.

What the drafters of the Constitution intended was a thorough

judicial review of administrative decision, a review which consid-
ers the whole record—that is, both sides of the record—not just
those portions of the record supporting the findings of the admin-
istrative agency. Although such a review does not attain the status
of de novo review, it necessarily entails a degree of qualitative and
quantitative evaluation of evidence considered by an agency. Such
review must be undertaken with considerable sensitivity in order
that the courts accord due deference to administrative expertise
and not invade the province of exclusive administrative fact-
finding by displacing an agency’s choice between two reasonably
differing views. [Michigan Employment Relations Comm v Detroit
Symphony Orchestra, Inc, 393 Mich 116, 124; 223 NW2d 283
(1974).]
23
Ante at 101.
2008] In re ROVAS COMPLAINT 127
OPINION BY KELLY, J.

The first Court of Appeals panel disagreed with the

PSC’s factual findings. It believed that the service fee
was based on a simple diagnostic error.24 The panel was
unclear what evidence supported the PSC’s conclusion
that the charging of a service fee by SBC presented a
systemic problem.25 By contrast, the second Court of
Appeals panel found substantial evidence supporting
the PSC’s conclusion.26
Indeed, substantial evidence on the whole record
does support the conclusion that SBC based its charge
of the service fee on an assumption. It assumed that, if
its employee detected a dial tone at the network inter-
face, the customer’s problem was located inside the
house. This assumption was in conscious disregard of
the fact, well known by SBC, that there was a frequent
problem of an intermittent signal transmitted by SBC’s
own facilities.
The complaining customer, William Rovas,27 an engi-
neer, presented the following evidence: He thoroughly
checked his telephone line at the interface of his phone
line and the SBC network line. He found that the line
went dead after 8 to 15 minutes and diagnosed the
problem as an intermittent dial tone. Rovas attempted
to apprise SBC of his diagnosis during his initial service
telephone call, but the SBC voice-mail system reduced
his message to a cryptic “no dial tone.”28 Certain that
the problem was in SBC’s network, the technically
24
Ameritech Michigan, supra at 2.
25
Id. at 3.
26
In re Complaint of Rovas Against Ameritech Michigan, 276 Mich App
55, 63; 740 NW2d 523 (2007).
27
The complainants were William and Sandra Rovas, but only William
Rovas testified at the hearing before the hearing referee.
28
On the basis of evidence of SBC’s repeated miscommunications with
the customer, the agency also concluded that SBC violated administrative
rules concerning system maintenance and service quality, Mich Admin
128 482 MICH 90 [July
OPINION BY KELLY, J.

sophisticated Rovas unplugged the telephone equip-

ment inside his home to give the SBC technician a clear
outside line.
The SBC technician who made the first service visit
left a tag on the door of the Rovases’ home. On the tag,
he had marked a box that corresponded to the following
preprinted text: “The outside lines were checked. The
problem shows to the inside premises. A charge of $71
applies to today’s visit.”
Rovas was understandably baffled. First, his own
testing had shown that the SBC network was sending
an intermittent signal. Second, the tag did not indicate
how the technician could have concluded that the
problem was inside without entering the premises.
Third, the tag did not identify what problem inside the
premises the technician had actually diagnosed and
whether that problem was the same one of which Rovas
had complained.29
Rovas additionally complained that, although SBC
eventually correctly diagnosed the problem as an inter-
mittent dial tone and fixed its own network, the service
fee still appeared on the monthly telephone bill. Rovas’s
evidence established that SBC charged the fee without
ascertaining that the problem was inside the home,
then billed Rovas for it, knowing that the problem was
outside the home.
Code R 484.31 and R 484.51(1)(c), which have since been rescinded. This
part of the PSC’s decision is not on appeal.
29
The service tag message is misleading. It does not make clear whether
checking the outside lines includes checking the inside phone wires at the
network interface. Rather, it assumes that the problem is inside after a check
of the outside lines found them working properly, although only momen-
tarily. The fact that an outside line functions momentarily is not a reliable
basis for charging the customer the nonregulated $71 service fee if an
intermittent dial tone is a possible problem. The fee should be reserved for
problems known to originate inside the home.
2008] In re ROVAS COMPLAINT 129
OPINION BY KELLY, J.

SBC offered several witnesses. Notably not among

them was the technician who had left the tag and
charged the service fee. The PSC staff placed a continu-
ing objection to the speculative testimony of Tom Dun-
ning, the dispatch control manager. He testified that
the technician must have followed SBC’s procedures.
He must have used an intelligent field device (IFD),
Dunning stated, capable of checking both the inside and
outside wiring at the network interface outside the
Rovases’ home. Dunning testified:
If the technician went and tested at the network inter-
face, found the . . . network was providing dial tone to the
network interface, he would assume that the trouble,
because he did have good dial tone, could have been in the
customer’s home.
He would look in with his IFD. He would test it both
ways. If there was a shorted out [sic], he would have
obviously known that, but by looking inside, and he did not
see any equipment on the inside, so he would bill the
customer.

Dunning also testified that an intermittent dial tone

was something the technicians dealt with on a daily
basis. However, he did not identify any procedures that
SBC followed to distinguish this common problem from
a problem inside a home. Rather, according to his
testimony, technicians were reprimanded only if they
took no corrective action when they found no dial tone
at the network interface.
The hearing referee and the first Court of Appeals
panel agreed with SBC that the problem of an intermit-
tent dial tone is difficult to diagnose or fix. They
reasoned that the technician incorrectly diagnosed the
problem because the telephone equipment inside the
home had been unplugged. This view of the evidence is
both incorrect and one-sided.
130 482 MICH 90 [July
OPINION BY KELLY, J.

First, the hearing referee and the Court of Appeals

gave the SBC technician the benefit of the doubt,
assuming that he tested the inside wires even though
the service tag did not indicate it. Nor did the tag
identify the problem that the technician diagnosed
inside the home. I find it inappropriate to give SBC the
benefit of the doubt under the circumstances. Because
SBC asserted that the technician made an innocent
mistake, it had the burden to prove that assertion. It
also controlled its own witnesses. Yet, the technician
was not called to testify about the basis for his diagno-
sis. Instead, SBC relied on Dunning’s speculation that
the disconnected equipment inside the home led to the
service-fee charge.
Additionally, Dunning did not explain what justified
the technician’s assumption that the problem of which
the customer had complained stemmed from the discon-
nected equipment inside the home. The lack of equip-
ment inside may signal a number of things, including,
in this case, that the customer intentionally discon-
nected his phone. Unlike a shorted wire, disconnected
equipment does not necessarily qualify as a “problem”
with inside wiring. The assumption that disconnected
equipment is a malfunction inside the home may lead to
repeated charges of a service fee although the malfunc-
tion is in the outside network. Such charges are all the
more inappropriate when, as in this case, the customer
has attempted to help SBC isolate the problem.
Lastly, both the hearing referee and the first Court of
Appeals panel assumed that it was difficult to diagnose
the Rovases’ problem as an intermittent dial tone.
SBC’s witnesses testified that it was difficult to diag-
nose what causes an intermittent dial tone. Dunning
explained that it may be caused by a weatherworn
conductor somewhere on the outside line. Indeed, SBC
2008] In re ROVAS COMPLAINT 131
OPINION BY KELLY, J.

never identified the precise cause of the problem in this

case and ultimately connected the Rovases to a new
telephone line.
But the fact that the cause of an intermittent dial
tone is difficult to identify does not mean that it is
difficult to identify the problem as an intermittent
signal from SBC’s network. In fact, when Rovas first
called SBC, he had already concluded that the SBC
network was sending an intermittent signal to his
home. He attempted to relate his conclusion to SBC.
Rovas’s frustration with SBC was in large part due to
the company’s apparent incompetence in light of his
correct original diagnosis.
No witness testified that SBC’s technicians were
trained to check whether a customer’s problem was due to
an intermittent signal in SBC’s network. On the contrary,
SBC’s procedures allowed technicians to assume that an
outside line was functional as long as it sent a signal at the
moment of testing. SBC’s procedures were clearly inad-
equate, considering that an intermittent dial tone is an
everyday concern that requires more than a momentary
testing of the outside line.
On the entire record before it, the agency was justi-
fied in its conclusion that SBC failed to establish that
this was a case of a simple misdiagnosis. SBC’s own
procedures made it clear that its technicians were
permitted to assume without further testing that an
outside line was functional if it sent a signal when
tested once. The technicians did not attempt to deter-
mine whether the customer’s telephone equipment had
been disconnected. The technicians charged a service
fee after insufficient testing. The tag did not identify
the problem that justified the fee, nor did it match the
technician’s diagnosis with the problem of which the
consumer complained.
132 482 MICH 90 [July
OPINION BY KELLY, J.

If an intermittent dial tone occurs daily and SBC

does not require its technicians to adequately test for it
before charging a service fee, SBC recklessly ignores a
known problem. Additionally, SBC neglects to take the
improper service fee off the customer’s telephone bill
even after it knows that the complained-of problem is in
its own network. The fee is refunded only if the cus-
tomer complains.
As the PSC concluded, these company practices can
lead to repeated violations of the MTA. SBC charges
a service fee on the pretext that a complained-of
problem is inside the customer’s home. In that way, it
imposes part of the cost of repair on the customer in
cases of an intermittent dial tone caused by problems
in the outside lines. SBC does so in violation of its
duty to repair its own network without direct charge
to its customers.
The PSC’s decision is supported by competent, ma-
terial, and substantial evidence on the whole record.
Despite the first panel’s faulty reasoning, both it and
the second Court of Appeals panel correctly affirmed
the decision.

IV. THE PSC’S ORDER

The PSC has now twice attempted to limit the

circumstances under which SBC can charge its $71
service fee. The agency amended its original order to
clarify that a technician is not always required to enter
a customer’s home in order to verify that the
complained-of problem originates inside. The amended
order prohibits, among other things, the imposition of a
fee for services needed to “exclude SBC’s facilities as a
possible cause of service disruptions.” The second Court
of Appeals panel took issue with this language and
2008] In re ROVAS COMPLAINT 133
OPINION BY KELLY, J.

remanded the order to the PSC for additional modifica-

tion to avoid the impression that the PSC impermissibly
regulates inside wiring.30
I concur with the majority in affirming this part of
the second Court of Appeals decision. I believe that the
PSC’s order needs to more accurately address the
problem of SBC’s knowing or reckless failure to test for
an intermittent dial tone at the network interface.31

V. CONCLUSION

The majority holds that a Michigan agency’s inter-

pretation of a statute that is within its area of expertise
is not binding on the courts. Also, an agency interpre-
tation cannot conflict with the plain meaning of the
statute. There is nothing new or controversial about
these holdings.
The majority also holds that an agency’s interpreta-
tion of a statute entrusted to it is not entitled to “great
weight” or “deference.” It is instead entitled to “re-
spectful consideration.” It is not clear what is distinct
about this interpretative rule, and the majority neglects
to explain the distinction. It neglects also to explain
how to apply its “new” rule.
Noteworthy is the fact that the majority also neglects
to include in its rule certain crucial language from
Boyer-Campbell, the opinion on which it relies. In
30
In re Rovas Complaint, 276 Mich App at 66.
31
SBC argued before the agency that the service fee should be
prohibited only if SBC determines that its network was the source of the
malfunction. However, SBC cannot accurately determine the source until
it changes its diagnostic procedures. SBC argued that it had improved its
diagnostic technology and extensively trained its technicians. The PSC
should consider whether these improvements ensure that SBC can
correctly diagnose problems in its own network and does not charge
customers for them prematurely.
134 482 MICH 90 [July
OPINION BY KELLY, J.

reciting the correct rule, Boyd mentions giving “most

respectful consideration.” But it does not stop there: it
goes on to say that the construction accorded to a
statute by an administrative agency charged with the
duty of executing it “ought not to be overruled without
cogent reasons.”32 Boyer-Campbell then cites with ap-
proval another Michigan Supreme Court decision,
Owosso Bd of Ed v Goodrich.33 Owosso states that
courts are to give weight to the practical construction
accorded to statutes by agencies and that agencies’
interpretations should sometimes be deferred to.34
Hence, it is not clear what, if any, meaningful change
the majority makes in the standard of review applicable
to agencies’ interpretations of statutes that they en-
force. What is important here is the majority’s errone-
ous application of the standard of review.
I dissent from the majority’s opinion because it
overturns the PSC’s decision on the ground that the
PSC incorrectly construed the phrase “false, mislead-
ing, or deceptive” to impose strict liability for incorrect
statements. The PSC did not impose strict liability.
Rather, on the evidence before it, it correctly concluded
that SBC assessed a service fee before it knew that the
customers’ problem was inside the home. It then billed
the customers with knowledge that the problem was in
the outside line. SBC’s procedures indicated that the
failure to test for an intermittent dial tone at the
network interface was a systemic problem rather than a
one-time mishap.
I conclude that the first Court of Appeals panel
reached the correct result even though the panel mis-
32
Boyer-Campbell, 271 Mich at 296 (quotation and citation omitted).
33
Owosso Bd of Ed v Goodrich, 208 Mich 646, 652; 175 NW 1009
(1920).
34
Id. (emphasis added).
2008] In re ROVAS COMPLAINT 135
OPINION BY KELLY, J.

interpreted the agency’s decision and deferred to the

agency for the wrong reasons. I would affirm the
decision of the second Court of Appeals panel in its
entirety. The panel correctly deferred to the PSC after
concluding that the agency’s decision was supported by
substantial evidence on the record. I would uphold the
PSC’s decision and would remand the case to the
agency for clarification of its order. The limitations it
imposed on SBC’s ability to charge the $71 service fee
concern only SBC’s premature imposition of the fee
based on insufficient testing for a commonly occurring
problem.

CAVANAGH and WEAVER, JJ., concurred with KELLY, J.

136 482 MICH 136 [July

WHITE v TAYLOR DISTRIBUTING COMPANY, INC

Docket No. 134751. Argued March 4, 2008 (Calendar No. 6). Decided July
23, 2008.
Sherita and Derrick White brought a negligence action in the Oakland
Circuit Court against James Birkenheuer, Taylor Distributing Com-
pany, Inc., and Penske Truck Leasing Company, L.P., after a tractor-
trailer Birkenheuer was driving struck a van Sherita White was
driving when Birkenheuer allegedly passed out following a severe
gastrointestinal disturbance. The court, Deborah G. Tyner, J.,
granted the defendants’ motion for summary disposition on the basis
of the sudden-emergency doctrine, and the plaintiffs appealed. The
Court of Appeals, MARKEY, P.J., and MURPHY, J. (KELLY, J., dissenting),
held that the trial court erred in granting summary disposition,
despite the fact that the plaintiffs failed to submit sufficient docu-
mentary evidence in response to the motion, because the determina-
tion whether Birkenheuer was negligent or experienced a sudden
emergency necessarily depended on Birkenheuer’s own account of
the events preceding the accident, which could not have been rebut-
ted by any documentary evidence and which required the finder of
fact to assess Birkenheuer’s credibility. 275 Mich App 615 (2007). The
defendant applied for leave to appeal, which the Supreme Court
granted. 480 Mich 961 (2007).
In a unanimous memorandum opinion, the Supreme Court
held:
The Court of Appeals properly reversed the trial court’s order
granting summary disposition because there was a genuine issue of
material fact regarding whether the sudden-emergency doctrine
applied given the conflicting evidence about whether Birkenheuer
knew or should have known that he was feeling too ill to continue
driving.
Affirmed and remanded to the trial court for further proceedings.

Mark Granzotto, P.C. (by Mark Granzotto) and

Gursten, Koltonow, Gursten, Christensen & Raitt, P.C.
(by Steven M. Gursten), for the plaintiffs.

John P. Jacobs, P.C. (by John P. Jacobs, Timothy A.

Diemer, and Andrew T. Strahan) and Kopka, Pinkus,
2008] WHITE V TAYLOR DISTRIBUTING CO, INC 137

Dolin & Eads, PLC (by John T. Eads III), for the
defendants.
Amicus Curiae:

Vandeveer Garzia, P.C. (by Hal O. Carroll), for the

Michigan Defense Trial Counsel, Inc.

MEMORANDUM OPINION. At issue is whether the trial

court properly granted summary disposition to defendant
on the basis of his claim that he experienced a sudden
emergency. Defendant,1 James Birkenheuer, rear-ended
plaintiff, Sherita White, while she was stopped for a red
light. By statute, the driver of a vehicle that strikes
another from behind is presumed negligent.2 But defen-
dant claims that, as a matter of law, the statutory
presumption should not apply to him because he expe-
rienced a sudden emergency when he blacked out
seconds before the collision. We disagree. We conclude
that there are genuine issues of material fact regarding
defendant’s claim of a sudden emergency. Accordingly,
we affirm the Court of Appeals reversal of the trial
court’s grant of summary disposition to defendant.
On March 15, 2004, defendant was driving from
Cincinnati, Ohio, to Novi, Michigan. He stated that he
1
Defendant Taylor Distributing Company is defendant James
Birkenheuer’s employer. Defendant Penske Truck Leasing Company, L.P.,
was the owner of the tractor-trailer defendant was driving. Because the
liability of these two defendants arises from Birkenheuer’s conduct, the
term “defendant” will be used to refer to Birkenheuer.
2
MCL 257.402(a) states:

In any action, in any court in this state when it is shown by

competent evidence, that a vehicle traveling in a certain direction,
overtook and struck the rear end of another vehicle proceeding in the
same direction, or lawfully standing upon any highway within this
state, the driver or operator of such first mentioned vehicle shall be
deemed prima facie guilty of negligence. This section shall apply, in
appropriate cases, to the owner of such first mentioned vehicle and to
the employer of its driver or operator.
138 482 MICH 136 [July

stopped at a rest area in Canton, Michigan, because he

experienced an urgent onset of severe diarrhea. After
the diarrhea episode, defendant stated that he waited
about 20 minutes at the rest area to see how he felt. Not
experiencing further illness, he continued his trip.
Defendant stated that as he took the Novi Road exit
ramp some 30 minutes later, he began to feel dizzy and
broke into a sweat. He recalled seeing plaintiff’s car
about 250 to 300 yards in front of him, stopped at a red
light at the end of the ramp. Defendant applied his
brakes, began gearing down, and then blacked out. He
has no recollection of events that occurred before the
impact with plaintiff’s vehicle jarred him to conscious-
ness. After the collision, he applied his emergency
brake, set his emergency flashers, and got out of his
truck, but blacked out again in the road. He was
assisted by other motorists and then treated by emer-
gency medical personnel at the scene.
Defendant was taken to a hospital by ambulance. He
was diagnosed as having experienced a “syncopal epi-
sode,” meaning that he blacked out. While at the
hospital, he described the accident to a police officer and
was ticketed for violating MCL 257.627(1)—failure to
maintain an assured clear distance ahead. The next day,
defendant visited his family doctor, who diagnosed
defendant as having experienced “viral enteritis with
syncopal spell secondary to hypovolemia” (intestinal
inflammation with secondary blackout).
Plaintiff filed a suit alleging that defendant was
presumed negligent under MCL 257.402(a) because he
had struck plaintiff’s vehicle from the rear.3 Defendant
moved for summary disposition under MCR
2.116(C)(10), asserting that he was not negligent under
3
Plaintiff also alleged a violation of MCL 257.627(1), which requires a
motorist to maintain an “assured, clear distance ahead.” Because the
2008] WHITE V TAYLOR DISTRIBUTING CO, INC 139

the circumstances because his illness created a sudden

emergency. Defendant submitted his deposition testi-
mony, the accident report, and related medical reports
in support of his motion. Plaintiff argued that questions
of fact existed regarding whether defendant had actu-
ally blacked out before the accident and whether defen-
dant knew or should have known that he was not in a
condition to drive when he left the rest area after
experiencing severe diarrhea. The trial court granted
defendant’s motion. Plaintiff appealed.
The Court of Appeals reversed the trial court, hold-
ing that summary disposition was not appropriate be-
cause the key evidence was within defendant’s exclusive
knowledge. White v Taylor Distributing Co, Inc, 275
Mich App 615, 630; 739 NW2d 132 (2007). We granted
defendant’s application for leave to appeal. 480 Mich
961 (2007).
“We review de novo decisions on summary disposi-
tion motions.” AFSCME v Detroit, 468 Mich 388, 398;
662 NW2d 695 (2003) (quotation omitted). A court
reviewing a motion under MCR 2.116(C)(10) “must
consider the pleadings, affidavits, depositions, admis-
sions, and any other evidence in favor of the party
opposing the motion, and grant the benefit of any
reasonable doubt to the opposing party.” Radtke v
Everett, 442 Mich 368, 374; 501 NW2d 155 (1993). The
statutory presumption of negligence under MCL
257.402(a) may be rebutted by showing the existence of
a sudden emergency. Vander Laan v Miedema, 385 Mich
226, 231; 188 NW2d 564 (1971). The sudden-emergency
doctrine applies “when a collision is shown to have
occurred as the result of a sudden emergency not of the
analysis of § 627(1) is virtually identical, we examine plaintiff’s claim
under § 402(a) only. Zeni v Anderson, 397 Mich 117, 134; 243 NW2d 270
(1976).
140 482 MICH 136 [July

defendants’ own making.” Id., citing McKinney v

Anderson, 373 Mich 414, 419; 129 NW2d 851 (1964).
Defendant asserts that he experienced a sudden emer-
gency when he became dizzy and blacked out on the exit
ramp seconds before he collided with plaintiff’s vehicle;
thus, the statutory presumption should not apply. We
agree that a sudden, unexpected blackout could present a
sudden emergency sufficient to rebut the statutory pre-
sumption.4 But a sudden emergency sufficient to remove
the statutory presumption must be “totally unex-
pected.” Vander Laan, supra at 232. There is evidence
that defendant may have known or should have known
that he was not feeling well when he continued driving
after his urgent stop at the Canton rest area. This
creates a genuine issue of material fact regarding
whether defendant’s emergency was totally unex-
pected.5
Defendant testified that after experiencing a severe
episode of diarrhea at the rest area, “I hung around a
4
In Soule v Grimshaw, 266 Mich 117, 119; 253 NW 237 (1934), we
recognized that a sudden loss of consciousness while driving could
present a sudden emergency sufficient to rebut the presumption of
negligence.
5
We note that there is also a question of fact regarding whether defendant
blacked out while driving or whether he only blacked out after the accident.
Defendant was driving alone and no one witnessed his condition immedi-
ately before the collision. The evidence reveals inconsistencies between
defendant’s condition immediately following his alleged precollision black-
out and his condition immediately following the undisputed blackout after
the collision. For instance, defendant experienced incontinence following the
undisputed blackout (after the collision), but not following the disputed
blackout (before the collision). Further, although defendant experienced a
lowered level of consciousness following the postaccident blackout, there is
evidence that he did not experience a lowered level of consciousness
following the alleged preaccident blackout; specifically, his testimony that
when he was jarred awake from the latter he immediately activated his
emergency flashers, applied his emergency brake, and got out of his cab to
check on plaintiff’s condition.
2008] WHITE V TAYLOR DISTRIBUTING CO, INC 141

while, walked around to make sure I was finished and felt

fine so I continued on to where I had to go because it
wasn’t far away.” This emphasized statement could imply
that defendant was aware he was not feeling well, but
chose to continue driving his tractor-trailer because he felt
he could make the short trip despite his condition.
Defendant states that he “felt great” while driving
some 30 minutes between the Canton rest area and the
Novi Road exit. But this statement is called into ques-
tion by the medical records and deposition testimony
submitted to the trial court. The emergency room (ER)
physician who treated defendant stated that “[a] couple
of episodes of diarrhea would not typically cause a
syncopal episode. Pain, abdominal cramping or severe
cramping or any kind of pain can cause someone to have
a syncopal episode, but a couple of episodes of diarrhea
would not cause him to pass out.”
Defendant’s family physician diagnosed defendant
with viral enteritis severe enough to cause a blackout.
Viral enteritis is an inflammation of the intestines with
symptoms including nausea, vomiting, diarrhea,
cramps, and abdominal pain. So, the independent opin-
ions of the two doctors treating defendant within 24
hours of the accident agree that defendant’s condition
would have caused ongoing symptoms such as cramps
and pain. Further, the officer who responded to the
accident noted that defendant “states he ‘blacked out,’
possibly from being ill.” It is unclear from this state-
ment whether defendant was referring to his diarrhea
at the rest area or to illness at some time more
immediately before the accident. If defendant experi-
enced ongoing symptoms or felt ill after his first onset of
urgent illness at the rest stop, then any subsequent
emergency was not totally unexpected and, thus, not
sudden.
142 482 MICH 136 [July

The ER physician also testified regarding how

quickly defendant’s syncopal episode may have devel-
oped: “In my opinion, I would say that happened over,
you know, several seconds, a couple of minutes, that’s
pretty sudden.” If defendant felt dizzy “a couple of
minutes” before blacking out, then perhaps his subse-
quent emergency was not clearly sudden under the
circumstances. Further, for the sudden emergency doc-
trine to apply, the emergency must not be of defendant’s
own making. Vander Laan, supra at 231. If defendant
was aware that he was not feeling well when he left the
rest area but continued driving anyway because he “did
not have far to go,” or if defendant felt ill while driving
from the rest area to the Novi Road exit, or if defendant
felt ill even a few minutes before he collided with
plaintiff, then the emergency may well have been of his
own making.
Additionally, defendant’s statements regarding the
cause of his condition are inconsistent. The notes from
defendant’s visit to his family doctor the day after the
accident state that defendant “blacked out while driv-
ing . . . feels like it was from eating a hardboiled egg 1
hour prior.” This information was not given to the ER
physician. When asked at deposition about what he had
to eat or drink before the accident, defendant did not
mention the hardboiled egg. We think that information
about the cause of defendant’s condition could have
better established how defendant was feeling before the
accident. Defendant’s inconsistent statements about
the cause of his illness create issues of material fact
precluding summary disposition.
We do not assess defendant’s credibility. But, under
the legal and factual circumstances, “[w]e do not ignore
the inconsistencies in defendant’s statements . . . .”
Bridwell v Segel, 362 Mich 102, 106; 106 NW2d
2008] WHITE V TAYLOR DISTRIBUTING CO, INC 143

386 (1960). The questions regarding whether defendant

experienced a sudden emergency and whether defen-
dant was negligent in driving under the facts presented
in this case are proper questions for the jury. Soule v
Grimshaw, 266 Mich 117, 120; 253 NW 237 (1934).
We affirm the Court of Appeals decision to reverse
and remand this case to the trial court for further
proceedings. Under the facts of this case, the trial court
improperly granted summary disposition to defendant.

TAYLOR, C.J., and CAVANAGH, WEAVER, KELLY, CORRIGAN,

YOUNG, and MARKMAN, JJ., concurred.
144 482 MICH 144 [July

STONE v WILLIAMSON

Docket No. 133986. Argued January 8, 2008 (Calendar No. 4). Decided
July 24, 2008.
Carl and Nancy Stone brought a medical-malpractice action in the
Jackson Circuit Court against David A. Williamson, M.D., Jackson
Radiology Consultants, P.C., and W. A. Foote Memorial Hospital,
alleging that a negligent diagnosis had led to the rupture of an
aneurysm and resulting trauma for Carl Stone, including the
amputation of both of his legs. At trial, the plaintiffs presented
expert testimony that, had the aneurysm been diagnosed properly,
Stone could have had elective surgery that would have greatly
increased his chance of a better medical outcome. The defendants
argued that the risk of death should be factored out when
calculating the probability of a better outcome, because Stone
survived. The jury returned a verdict in the plaintiffs’ favor. The
court, Chad C. Schmucker, J., denied the defendants’ motions for a
new trial and judgment notwithstanding the verdict. The Court of
Appeals, SERVITTO, P.J., and TALBOT and SCHUETTE, JJ., affirmed in
an unpublished opinion per curiam, issued April 17, 2007 (Docket
No. 265048). Considering all the increased risks that Stone faced
and applying the formula of Fulton v William Beaumont Hosp, 253
Mich App 70 (2002), the Court concluded that the plaintiffs had
satisfied MCL 600.2912a(2), which states that a medical-
malpractice plaintiff cannot recover damages for “loss of an
opportunity . . . to achieve a better result unless the opportunity
was greater than 50 percent.” The defendants sought leave to
appeal, which the Supreme Court granted, including in the issues
to be addressed on appeal whether Fulton was decided incorrectly.
480 Mich 895 (2007).
In an opinion by Chief Justice TAYLOR, joined by Justices
CORRIGAN and YOUNG, and an opinion by Justice CAVANAGH, joined by
Justices WEAVER and KELLY, the Supreme Court held:
This case does not involve a claim under MCL 600.2912a(2) for
the loss of an opportunity. The plaintiffs’ proofs satisfied the
elements of a traditional medical-malpractice claim, and the result
of the Court of Appeals judgment is affirmed.
Result affirmed.
2008] STONE V WILLIAMSON 145

Chief Justice TAYLOR, joined by Justices CORRIGAN and YOUNG,

would further hold that the second sentence of MCL 600.2912a(2),
which addresses loss of opportunity, is substantially incomprehen-
sible and is unenforceable because it provides no guidance regard-
ing its meaning or how courts are to apply it. Moreover, the second
sentence impossibly conflicts with the first sentence of MCL
600.2912a(2), which codified the common law. Under the first
sentence, a medical-malpractice plaintiff must prove that he or she
suffered an injury that the defendant’s negligence more probably
than not caused. Even though the lower courts erred by applying
Fulton and the trial court incorrectly instructed the jury, retrial is
not necessary because it is clear that the jury found that the
plaintiffs had satisfied the traditional causation and injury ele-
ments of medical malpractice. Chief Justice TAYLOR, however,
would reject the analysis of the Court of Appeals.
Justice CAVANAGH, joined by Justices WEAVER and KELLY, dis-
agreed with Chief Justice TAYLOR’s analysis of the second sentence
of MCL 600.2912a(2) and conclusion that it is incomprehensible
and unenforceable, and would further hold that the circumstances
of the amendment of the statute clarify the meaning of the
statutory language. The Legislature added MCL 600.2912a(2) in
response to Falcon v Mem Hosp, 436 Mich 443 (1990), which
allowed an action for the loss of an opportunity to survive.
Interpreted in that light, the first sentence of MCL 600.2912a(2)
codified a medical-malpractice plaintiff’s burden of proving that he
or she suffered an injury that the defendant’s negligence more
probably than not caused, even if the alleged injury is the loss of an
opportunity to avoid harm that Falcon recognized. The second
sentence of the statute merely sets the threshold for invoking the
loss-of-opportunity doctrine by requiring that the plaintiff’s pre-
malpractice opportunity to survive or achieve a better result be
greater than 50 percent. Thus, the two sentences do not conflict.
Justice MARKMAN, concurring in the result only, disagreed with
Chief Justice TAYLOR and Justice CAVANAGH that this is not a
lost-opportunity action, concluding instead that a lost-opportunity
action is one in which it is possible that the bad outcome would
have occurred even if the patient had received proper treatment.
He also disagreed with Chief Justice TAYLOR that MCL
600.2912a(2) is unenforceable, concluding instead that all statutes
are enforceable unless they violate the Michigan Constitution or
the United States Constitution, which the statute at issue here
does not. Finally, he disagreed with Justice CAVANAGH that MCL
600.2912a(2) only requires that the patient’s premalpractice
chance to obtain a better result be greater than 50 percent,
146 482 MICH 144 [July

concluding instead that the lost opportunity must be greater than

50 percent. In order to determine whether the lost opportunity
was greater than 50 percent, Justice MARKMAN would adopt a
formula that generates the actual percentage lost rather than the
number of percentage points lost and excludes those who would
have achieved a good result regardless of the malpractice. Because
Stone’s lost opportunity in this case was greater than 50 percent,
the result of the Court of Appeals judgment should be affirmed.

Ferris & Salter, P.C. (by Don Ferris), for the plaintiffs.

Kitch Drutchas Wagner Valitutti & Sherbrook (by

Susan Healy Zitterman and Christina A. Ginter) for the
defendants.
Amici Curiae:

Kerr, Russell and Weber, PLC (by Daniel J. Schulte

and Joanne Geha Swanson), for the Michigan State
Medical Society.

Warner Norcross & Judd LLP (by Matthew T. Nelson,

Dean F. Pacific, John J. Bursch, Sarah A. Luke, Made-
laine C. Lane, and Julie Lam) for Michigan Defense
Trial Counsel.

Collins, Einhorn, Farrell & Ulanoff, P.C. (by Noreen

L. Slank and Geoffrey M. Brown), for ProNational
Insurance Company.

Smith Haughey Rice & Roegge (by L. Roland Roegge

and William L. Henn) for the Michigan Health and
Hospital Association.

Charfoos & Christensen, P.C. (by David R. Parker),

for Roy Waddell, M.D.

Olsman Mueller, P.C. (by Jules B. Olsman and Donna

M. MacKenzie), and Richard E. Shaw for Citizens for
Better Care.
2008] STONE V WILLIAMSON 147
OPINION BY TAYLOR, C.J.

Mark Granzotto, P.C. (by Mark Granzotto), for the

Michigan Association for Justice.

TAYLOR, C.J. In this case, the Court is called on to

examine the doctrine of “lost opportunity” set forth in
MCL 600.2912a(2), which prohibits recovery for the loss of
an opportunity to survive or achieve a better result unless
the opportunity was greater than 50 percent, and the
construction of that statute in Fulton v William Beau-
mont Hosp, 253 Mich App 70; 655 NW2d 569 (2002). The
Court of Appeals in this case considered the aggregate of
complications plaintiff faced and concluded that plaintiff
satisfied the statute, using Fulton’s requirement that the
difference between his chance of a better result without
malpractice and his chance of a better result despite the
alleged malpractice was greater than 50 percentage
points. I conclude that the second sentence of MCL
600.2912a(2) does not apply to this case. Moreover, I
believe the second sentence is unenforceable because it
provides no guidance regarding its meaning or how courts
are to apply it. A medical-malpractice plaintiff must prove
that he or she suffered an injury that more probably than
not was proximately caused by the negligence of the
defendant. Because the evidence presented at trial would
support the jury’s verdict under my analysis, I conclude
that there is no need to conduct a new trial and would
therefore affirm the result of the Court of Appeals judg-
ment but not its analysis.

I. FACTS AND PROCEEDINGS

Plaintiff suffered the rupture of an abdominal aortic

aneurysm that had gone undetected despite physical
examinations and testing by a number of physicians.1
1
Throughout this opinion, “plaintiff” refers to Carl Stone; the claim of
his wife, Nancy Stone, is derivative in nature.
148 482 MICH 144 [July
OPINION BY TAYLOR, C.J.

He underwent emergency surgery to repair the rupture,

but, in part because of preexisting conditions, amputa-
tion of both legs at mid-thigh was ultimately necessary.
After surgery, plaintiff continued to experience multiple
organ failure and other complications, including acute
renal failure, sepsis, rhabdomyolysis, osteomyelitis, re-
current pancreatitis, and depression. His home re-
quired structural changes to accommodate his wheel-
chair and specialized needs, and his wife quit her
employment to assist with his daily care needs.
Plaintiff brought a medical-malpractice suit against
the radiologist and two vicariously liable entities on the
theory that a negligent diagnosis resulted in the rup-
ture and all resulting harm. At the jury trial, plaintiff
presented experts who testified that, had the aneurysm
been properly diagnosed, elective surgery could have
been performed. Such elective surgery would have
greatly increased plaintiff’s chance of a better medical
outcome, including a reduction of the risk of amputa-
tion and other health complications. Plaintiff’s medical
experts testified that a patient having elective surgery
to repair an aortic aneurysm has a 95 percent chance of
attaining a good result, which includes surviving the
rupture, as well as avoiding additional medical compli-
cations. In contrast, misdiagnosed patients whose an-
eurysms rupture have only a 10 percent chance to
achieve a good result. Specifically, the experts opined
that 80 percent of patients with a rupture of an aortic
aneurysm die, either en route to obtain medical care or
during the emergency surgery. Of the 20 percent of
patients with ruptures who manage to survive, 40 to 50
percent have some form of complication. This contrasts
markedly with those undergoing elective repair, who
face less than a 5 percent risk of dying or suffering
serious complications.
2008] STONE V WILLIAMSON 149
OPINION BY TAYLOR, C.J.

Defendants argued that the risk of death should be

factored out because plaintiff avoided it and that the
risk of complications other than death was 5 to 12
percent for elective surgery and up to 40 percent for
emergency surgery. Taking the numbers most favor-
able to plaintiff, 5 and 40, defendants argued that the
difference was at best 35 percent. The specific risk of
amputation suffered by plaintiff was 1 percent for
elective surgery and 5 percent for emergency surgery:
a paltry difference of 4 percent. The trial court
disagreed with defendants’ theory, however, and in-
structed the jury to consider the aggregate risk of
complications.
The jury returned a verdict in favor of plaintiff for a
total amount of $2,327,835. Following reduction for the
damages cap2 and collateral sources, the court entered a
judgment in the amount of $1,936,682, of which
$1,640,800 was for the verdict and the remainder was
for interest, costs, and attorney fees. The trial court
denied defendants’ postjudgment motions for a new
trial and judgment notwithstanding the verdict.
The Court of Appeals affirmed in an unpublished
opinion per curiam, issued April 17, 2007 (Docket No.
265048). On the issue of “loss of opportunity,” it agreed
with the trial court that plaintiff had met the require-
ments of the statute because he had gone from a 95
percent chance of attaining a good result to a 10 percent
chance of attaining a good result. Id. at 5. The Court
considered the aggregate of all the increased risks that
plaintiff faced as a result of the alleged malpractice and
applied the Fulton formula to that aggregate risk.
This Court granted leave to appeal, directing the
parties to address
2
MCL 600.1483.
150 482 MICH 144 [July
OPINION BY TAYLOR, C.J.

(1) whether the requirements set forth in the second

sentence of MCL 600.2912a(2) apply in this case; (2) if so,
whether the “loss of an opportunity to survive or an
opportunity to achieve a better result” should be deter-
mined by considering the aggregate increased risk posed by
the alleged malpractice, including risks associated with
injuries that the patient did not suffer and any increased
risk of death, or whether the only consideration should be
the increased risk of the specific injury or injuries suffered
by the patient; (3) whether Fulton v William Beaumont
Hosp, 253 Mich App 70 (2002), was correctly decided, or
whether a different approach is required to correctly imple-
ment the second sentence of § 2912a(2), such as that
described in Roy W. Waddell, M.D.’s A Doctor’s View of
Opportunity to Survive: Fulton’s Assumptions and Math
are Wrong, published in the March 2007 edition of the
Michigan Bar Journal at 32; and (4) whether the Court of
Appeals erred when it determined that the plaintiffs met
the requirements of § 2912a(2). [480 Mich 895 (2007).]

II. STANDARD OF REVIEW

This Court reviews de novo a trial court’s decision on

a motion for judgment notwithstanding the verdict,
viewing the evidence and all legitimate inferences in the
light most favorable to the nonmoving party. Sniecinski
v Blue Cross & Blue Shield of Michigan, 469 Mich 124,
131; 666 NW2d 186 (2003). Similarly, we review de novo
questions of statutory interpretation. Wickens v Oak-
wood Healthcare Sys, 465 Mich 53, 59; 631 NW2d 686
(2001). When interpreting a statute, the Court’s pri-
mary goal is to give effect to the intent of the Legisla-
ture. Brown v Detroit Mayor, 478 Mich 589, 593; 734
NW2d 514 (2007). The first step is to review the
language of the statute. Id. If the statute is unambigu-
ous on its face, we presume that the Legislature in-
tended the meaning expressed, and judicial construc-
tion is neither required nor permissible. Id. However,
when a statute is ambiguous on its face—that is, equally
2008] STONE V WILLIAMSON 151
OPINION BY TAYLOR, C.J.

susceptible to more than a single meaning—judicial

construction is appropriate to determine the meaning.
Lansing Mayor v Pub Service Comm, 470 Mich 154,
164-166; 680 NW2d 840 (2004).

III. ANALYSIS

At issue in this case is subsection 2 of MCL

600.2912a, which reads:
In an action alleging medical malpractice, the plaintiff
has the burden of proving that he or she suffered an injury
that more probably than not was proximately caused by the
negligence of the defendant or defendants. In an action
alleging medical malpractice, the plaintiff cannot recover
for loss of an opportunity to survive or an opportunity to
achieve a better result unless the opportunity was greater
than 50%. [MCL 600.2912a(2).][3]

Although the lower courts did not question the

applicability of the second sentence of MCL
600.2912a(2) to plaintiff’s claim, treating it as one for
loss of opportunity, this Court expressly requested the
parties to address the issue. Plaintiff argues that he
never pleaded his claim as one for loss of an opportu-
nity; instead, his is a simple case of physical injury
directly caused by negligence. In his brief, he asserts
that a case involving a loss of opportunity occurs in very
specific circumstances: “where a plaintiff cannot prove
that the defendant’s acts or omissions proximately
caused his injuries, but can prove that the defendant’s
acts or omissions deprived him of some chance to avoid
those injuries.”
3
In addition, subsections 1(a) and (b) of the statute both include
language requiring the plaintiff to show that, “as a proximate result of
the defendant failing to provide [the appropriate standard of practice or
care], the plaintiff suffered an injury.” MCL 600.2912a(1)(a) and (b).
152 482 MICH 144 [July
OPINION BY TAYLOR, C.J.

This definition is in accord with Michigan caselaw. In

the first Michigan case to refer to the legal theory of
“the value of lost chance,” the Court of Appeals ex-
plained: “This theory is potentially available in situa-
tions where a plaintiff cannot prove that a defendant’s
actions were the cause of his injuries, but can prove that
the defendant’s actions deprived him of a chance to
avoid those injuries.” Vitale v Reddy, 150 Mich App 492,
502; 389 NW2d 456 (1986). The Court in Vitale noted
that allowing such claims would expand existing com-
mon law, and it declined to do so, stating that such a
decision “is best left to either the Supreme Court or the
Legislature.” Id. at 504. In a footnote, the Court ob-
served that the wrongful-death statute, MCL 600.2922,
requires proof that the wrongful acts or omissions were the
cause of death. The statutory provision would not allow a
plaintiff to recover in a situation where he could prove only
that defendant’s acts or omissions were the cause of a lost
chance but could not prove that defendant’s acts or omis-
sions were the cause of death. [Id. at 504 n 4.]

In accord with this analysis, this Court has stated:

“The lost opportunity doctrine allows a plaintiff to
recover when the defendant’s negligence possibly, i.e.,
[by] a probability of fifty percent or less, caused the
plaintiff’s injury.” Weymers v Khera, 454 Mich 639, 648;
563 NW2d 647 (1997) (emphasis added).4 The Weymers
Court aptly described the lost-opportunity doctrine as
“the antithesis of proximate cause.” Id.5 In cases in
4
Although this Court decided Weymers long after the statute at issue
was enacted in 1993, the negligence alleged in Weymers occurred before
1993. Accordingly, the Court applied the common law rather than the
statute.
5
I agree with Justice CAVANAGH’s reasoning and conclusion that Justice
MARKMAN’s definition of a lost-opportunity case is overbroad and incon-
sistent with the common-law meaning at the time MCL 600.2912a(2) was
enacted. Post at 179-182. Long before Falcon v Mem Hosp, 436 Mich 443;
2008] STONE V WILLIAMSON 153
OPINION BY TAYLOR, C.J.

which the plaintiff alleges that the defendant’s negli-

gence more probably than not caused the injury, the
claim is one of simple medical malpractice. Id. at
647-648.
In Falcon v Mem Hosp, 436 Mich 443; 462 NW2d 44
(1990), this Court first recognized a claim for lost
opportunity to survive. Falcon was a wrongful-death
case in which this Court allowed a claim to go forward
even though the plaintiff’s granddaughter would have
had only a 37.5 percent chance of surviving a medical
accident had she received proper care. Because proper
medical procedures had not been followed, the grand-
daughter’s chance of surviving the accident went to
essentially zero. The lead opinion in Falcon admitted
that the plaintiff could not show that the malpractice
had more likely than not caused her granddaughter’s
death, but could show that it had caused her grand-
daughter to lose a “substantial opportunity of avoiding
physical harm.” Id. at 470 (LEVIN, J.). The lead opinion
disavowed the traditional rule that requires a plaintiff
to show that, but for the defendant’s negligence, the
patient would not have suffered the physical harm,
saying that the “more probable than not standard, as
well as other standards of causation, are analytic
devices—tools to be used in making causation judg-
ments.” Id. at 451. Instead, despite the fact that the
plaintiff could not show that the doctor’s malpractice
had more probably than not caused her granddaugh-
ter’s death, the plaintiff had a claim because the mal-
practice did cause her granddaughter harm. The 37.5
percent chance for a better outcome was “hardly the
kind of opportunity that any of us would willingly allow
462 NW2d 44 (1990), plaintiffs successfully brought actions for medical
malpractice even though they had preexisting conditions or might have
had a bad result despite being properly treated.
154 482 MICH 144 [July
OPINION BY TAYLOR, C.J.

our health care providers to ignore.” Id. at 460. This

harm occurred before the granddaughter’s death, at the
moment “[w]hen, by reason of the failure to implement
[certain] procedures,” she was denied any opportunity
of living. Id. at 469, 471 n 44. The lead opinion charac-
terized its holding as requiring the plaintiff to show,
more probably than not, that the malpractice reduced
the opportunity of avoiding harm: “failure to protect
[the granddaughter’s] opportunity of living.”6 Id. at
469. Loss of her 37.5 percent opportunity of living, the
lead opinion stated, “constitutes a loss of a substantial
opportunity of avoiding physical harm.” Id. at 470.
The lead opinion in Falcon thus concluded that the
loss-of-opportunity claim accrued not when the patient
died, but at the moment she went from having a 37.5
chance of survival to having no chance of survival.
Under this theory, a plaintiff would have a cause of
action independent of that for the physical injury and
could recover for the malpractice that caused the plain-
tiff to go from a class of patients having a “good chance”
to one having a “bad chance.” Without this analysis, the
plaintiff in Falcon would not have had a viable claim
because it could not have been shown that the defen-
dant more probably than not caused the physical injury.
Until Falcon, medical-malpractice plaintiffs alleging
that the defendant’s act or omission hastened or wors-
ened the injury (such as by failing to diagnose a
condition) had to prove that the defendant’s malprac-
6
Only Justice ARCHER joined Justice LEVIN’s lead opinion. Justice BOYLE
wrote a concurrence, joined by Justice CAVANAGH, that agreed that tort
law should allow a claim for “lost opportunity to survive” when “the
negligence of the defendant more probably than not caused the loss of
opportunity.” Falcon, supra at 472-473 (BOYLE, J., concurring). However,
the concurrence noted that “any language in the lead opinion suggesting
that a similar cause of action might lie for a lost opportunity of avoiding
lesser physical harm is dicta.” Id. at 473.
2008] STONE V WILLIAMSON 155
OPINION BY TAYLOR, C.J.

tice more probably than not was the proximate cause of

the injury. See, e.g., Morgan v Taylor, 434 Mich 180; 451
NW2d 852 (1990); Naccarato v Grob, 384 Mich 248, 252;
180 NW2d 788 (1970); Skeffington v Bradley, 366 Mich
552; 115 NW2d 303 (1962).
When the Court decided Falcon, MCL 600.2912a
read:
In an action alleging malpractice the plaintiff shall have
the burden of proving that in light of the state of the art
existing at the time of the alleged malpractice:
(a) The defendant, if a general practitioner, failed to
provide the plaintiff the recognized standard of acceptable
professional practice in the community in which the defen-
dant practices or in a similar community, and that as a
proximate result of the defendant failing to provide that
standard, the plaintiff suffered an injury.
(b) The defendant, if a specialist, failed to provide the
recognized standard of care within that specialty as rea-
sonably applied in light of the facilities available in the
community or other facilities reasonably available under
the circumstances, and as a proximate result of the defen-
dant failing to provide that standard, the plaintiff suffered
an injury.

Three years after Falcon, the Legislature enacted

1993 PA 78, amending MCL 600.2912a to add the
second subsection. In its entirety, the statute as
amended reads:
(1) Subject to subsection (2), in an action alleging mal-
practice, the plaintiff has the burden of proving that in
light of the state of the art existing at the time of the
alleged malpractice:
(a) The defendant, if a general practitioner, failed to
provide the plaintiff the recognized standard of acceptable
professional practice or care in the community in which the
defendant practices or in a similar community, and that as
156 482 MICH 144 [July
OPINION BY TAYLOR, C.J.

a proximate result of the defendant failing to provide that

standard, the plaintiff suffered an injury.
(b) The defendant, if a specialist, failed to provide the
recognized standard of practice or care within that spe-
cialty as reasonably applied in light of the facilities avail-
able in the community or other facilities reasonably avail-
able under the circumstances, and as a proximate result of
the defendant failing to provide that standard, the plaintiff
suffered an injury.
(2) In an action alleging medical malpractice, the plain-
tiff has the burden of proving that he or she suffered an
injury that more probably than not was proximately caused
by the negligence of the defendant or defendants. In an
action alleging medical malpractice, the plaintiff cannot
recover for loss of an opportunity to survive or an opportu-
nity to achieve a better result unless the opportunity was
greater than 50%. [New language emphasized.]

As can be seen, the Legislature retained the already-

existing language, making it subsection 1 of the statute.
Both subsection 1(a) and subsection 1(b) require the
plaintiff to show that, “as a proximate result of the
defendant failing to provide [the appropriate standard
of practice or care], the plaintiff suffered an injury.”
Further, the Legislature added subsection 2. Specifi-
cally, the first sentence of this new subsection codifies
and reiterates the common-law requirement that a
plaintiff show that the defendant’s malpractice more
probably than not caused the plaintiff’s injury. The
second sentence of subsection 2 adds that, in medical-
malpractice cases, a “plaintiff cannot recover for loss of
an opportunity to survive or an opportunity to achieve
a better result unless the opportunity was greater than
50%.” However, one must keep in mind that the rel-
evant caselaw when subsection 2 was enacted held that
the lost-opportunity doctrine applies “in situations
where a plaintiff cannot prove that a defendant’s actions
were the cause of his injuries . . . .” Vitale, supra at 502
2008] STONE V WILLIAMSON 157
OPINION BY TAYLOR, C.J.

(emphasis added). That is, the first sentence of subsec-

tion 2 requires plaintiffs in every medical-malpractice
case to show the defendant’s malpractice proximately
caused the injury while, at the same time, the second
sentence refers to cases in which such proof not only is
unnecessary, but is impossible. Accordingly, I conclude
that the two sentences of subsection 2 create a paradox,
allowing claims in the second sentence while precluding
them by the first sentence.
While it is tempting to argue, as Justice CAVANAGH
does, that the Legislature intended to allow as an
“injury” a plaintiff’s lost chance alone, without proof of
physical injury, this Court addressed that issue in
Wickens. In Wickens, supra at 60, the Court stated that
the first sentence of subsection 2 “expressly limits
recovery to injuries that have already been suffered and
more probably than not were caused by the defendant’s
malpractice.” A reduction of a person’s chances of
avoiding injury is not itself a present injury, but is only
an indication of the likelihood of suffering a future
injury. Id. at 60-61. Therefore, because of the statutory
present-injury requirement, the plaintiff in Wickens
could not recover for her reduced expected life span—
the exact kind of injury that Falcon allowed. Moreover,
it has never been the law in this state that a negligence
suit can be sustained when the alleged negligence did
not cause a physical injury to a person or property.
Henry v Dow Chem Co, 473 Mich 63, 75-76; 701 NW2d
684 (2005). The Legislature would have understood
that this is what the term “injury” encompassed when
it enacted the language reiterating this traditional
requirement: the plaintiff must have an injury proxi-
mately caused by the defendant.7 Ford Motor Co v City
7
While Falcon superficially recognized this, it determined that the
patient’s death, which could not be said to have been caused by the
158 482 MICH 144 [July
OPINION BY TAYLOR, C.J.

of Woodhaven, 475 Mich 425, 439-440; 716 NW2d 247

(2006). Thus, what the Legislature intended by the
statute was likely something more traditional: a situa-
tion in which an injury might have occurred anyway,
but in which the defendant’s act or omission hastened
or worsened it in such a way that the plaintiff suffered
more severe physical injury than he or she would have
had the negligence not occurred. As noted, before
Falcon, such cases were litigated under the ambit of
traditional medical-malpractice law.8
In my view, there is little question that the statute
cannot be interpreted as written. Avoiding the under-
lying paradox of the statute allowing in one sentence
suits that in another sentence it precludes, the Court of
doctor’s malpractice, was the physical injury she suffered. By permitting
the plaintiff to recover for a different injury (loss of an opportunity to
survive), the Court ignored the fundamental requirement that a tort
plaintiff must suffer a physical injury that was caused by the defendant’s
negligence. Instead of clarifying that it was significantly redefining
“injury” in a wholly new way, the lead opinion in Falcon first focused
almost completely on relaxing the burden of proof regarding causation.
See, e.g., Falcon, supra at 449-453 and nn 5 and 6, 455-457 (LEVIN, J.).
Then it recited foreign cases holding that a reduction in chances is a
compensable injury and determined that to be sound. Id. at 461-468. The
opinion did not appear to recognize that this was contrary to a consider-
able body of existing Michigan caselaw. See id. at 494 (RILEY, J.,
dissenting) (“The recovery of damages for the loss of a mere chance
eviscerates the principles that underlie our tort law.”).
8
Justice CAVANAGH asserts that a plaintiff cannot claim a lost opportu-
nity “unless [the] plaintiff suffered a verifiable loss.” Post at 172 n 2.
Justice MARKMAN appears to agree with him that a bad result must occur,
otherwise the opportunity has not been lost. Post at 197. Certainly, in
such cases the defendant’s conduct might have increased the likelihood of
a bad result. Yet if the plaintiff is unable to show that the defendant’s
negligence caused the bad result, how can he or she nonetheless show
that the defendant’s negligence caused the opportunity to be lost? This is
the heart of the problem with allowing loss-of-opportunity claims: either
the patient has a concrete injury, in which case he or she should be
required to prove causation, or the plaintiff does not, in which case the
defendant should not be held liable. See Henry, supra at 75-76.
2008] STONE V WILLIAMSON 159
OPINION BY TAYLOR, C.J.

Appeals, interpreting the second sentence by itself in

Fulton, found two possible, and fully contradictory,
constructions, each of which could be achieved only by
adding words to the statute. The Fulton Court ex-
pressed the issue before it as whether the second
sentence of the statute requires a plaintiff to show “only
that the initial opportunity to survive before the alleged
malpractice was greater than fifty percent . . . or, in-
stead, that the opportunity to survive was reduced by
greater than fifty percent because of the alleged mal-
practice . . . .” Fulton, supra at 77-78 (emphasis added).
The Court noted that the statute was ambiguous be-
cause reasonable minds could differ regarding which of
these meanings could be read from the words of the
statute. The Court concluded that the first interpreta-
tion required that the word “initial” be inferred to
modify “opportunity” and that the second required that
the words “loss of” be inferred to modify “opportunity.”
Id. at 80. Apparently finding itself obligated to choose
one of these two interpretations, the Court then decided
that the second construction was the one intended by
the Legislature because it reflected the Legislature’s
rejection of Falcon.9 The Court asserted that the lead
opinion in Falcon had focused on the “extent of the
loss” and that the Legislature was insisting on a greater
loss for the claim to be actionable. Id. at 82-83. How-
ever, Falcon’s focus was almost entirely on the plain-
tiff’s initial opportunity being substantial, and so it is
equally plausible that the Legislature merely intended
for a plaintiff to have an initial opportunity of more
9
I agree with Justice CAVANAGH, post at 174, that Justice MARKMAN’s
interpretation (and that of Fulton) improperly adds to the statute the
words “loss of,” effectively replacing the word “opportunity” where it is
used the second time with the phrase “loss of opportunity.” The only
basis for adding this language is the simple desire to make the statute so
read.
160 482 MICH 144 [July
OPINION BY TAYLOR, C.J.

than 50 percent. Both interpretations proposed in Ful-

ton implicate a negative reaction to Falcon, and nothing
in the statutory language, the statutory context, or the
statute’s history gives any further clues to assist in
choosing the “correct” interpretation.
It is confounding to attempt to ascertain just what
the Legislature was trying to do with this amendment.
Even if it was trying to create a remedy for the “injury”
of a reduction in chances following medical malpractice,
by imposing the threshold of greater than 50 percent it
may well have eliminated most of the cases that might
benefit from such a rule. For example, if the patient in
Falcon had enjoyed a greater than 50 percent initial
likelihood of survival (that is, she was not likely to die
even with proper treatment), the plaintiff probably
would have brought a standard medical-malpractice
case, and the jury would have decided proximate cause
in the usual way. It was only because the plaintiff could
not show that the patient more probably than not
would have survived but for the doctor’s negligence that
prompted the plaintiff to seek her remedy under the
doctrine of lost opportunity.
As written, the second sentence of MCL 600.2912a(2)
can be made understandable only by adding words or by
redefining “injury” in a way significantly contrary to
the mass of caselaw at the time the sentence was added.
Another possible alternative reading is that the second
sentence of subsection 2 was intended not to create a
new type of claim, but to limit courts from expanding
the common law so far as to allow cases like Falcon.
None of these multiple, contradictory interpretations
can be shown to be the “correct” construction of legis-
lative intent. Choosing between them can only be a
guess. Moreover, it remains that the second sentence
impossibly conflicts with the requirement of a proxi-
2008] STONE V WILLIAMSON 161
OPINION BY TAYLOR, C.J.

mate cause of the injury in both the first sentence of

subsection 2 and in subsection 1. Accordingly, I conclude
that the second sentence of subsection 2 cannot be judi-
cially enforced because doing so requires the Court to
impose its own prerogative on an act of the Legislature.10
I find the second sentence of MCL 600.2912a(2), as
written, substantially incomprehensible because (1) it
either cannot be harmonized with the proximate-cause
requirement of the rest of the statute or creates by
implication a new cause of action contrary to common
law and (2) it provides no guidance regarding its correct
application. The remaining portions of MCL 600.2912a
should continue in effect. MCL 8.5.
This would leave, for medical-malpractice claims, the
requirement imposed by the statute that “the plaintiff
has the burden of proving that he or she suffered an
injury that more probably than not was proximately
caused by the negligence of the defendant or defen-
dants.” MCL 600.2912a(2).11 In addition, the word “in-
jury” would continue to retain its meaning in tort of a
present physical injury to person or property. I believe
that, by codifying and restating the requirements of
causation and injury in existence at the time Falcon was
decided, the Legislature effectively overruled Falcon
and reinstated the traditional elements of medical-
malpractice claims.
10
See, e.g., Mini Spas, Inc v State, 657 P2d 1348, 1350 (Utah, 1983)
(refusing to rewrite “by judicial intervention” an act purporting to create
a regulatory board because the act “cannot be implemented as written”
and stating that “[p]laintiff must seek a solution to this problem from the
Legislature”); Warren v Branan, 109 Ga 835, 840; 35 SE 383 (1900)
(holding that the provisions of an act seeking to establish the geographi-
cal limits of a town “are so indefinite, uncertain, and incomplete that the
legislative intent can not be ascertained and given effect, and that
therefore the act is wholly inoperative”).
11
Even if we were to strike both sentences of subsection 2, the
proximate-cause requirement would remain in subsection 1.
162 482 MICH 144 [July
OPINION BY TAYLOR, C.J.

In accord with my conclusion that the second sen-

tence of MCL 600.2912a(2) is incomprehensible as
written, I would hold that Fulton’s construction of that
part of the statute is no longer good law.12 I believe that
the Legislature intended to retain the traditional
proximate-cause requirement in effect before Falcon
and that that is what a plaintiff must prove.13

IV. APPLICATION

Although I believe that the lower courts erred by

applying Fulton and that the trial court incorrectly
instructed the jury on the issue of whether plaintiff had
shown that defendant’s negligence caused him to lose a
greater than 50 percent chance of a better result, I
would conclude that it is not necessary to order a new
trial. For each defendant, the trial court instructed the
jury that it had to find by a preponderance of the evidence
(1) that the defendant was professionally negligent, (2)
12
Moreover, to the extent it could be considered as providing a method
of determining proximate cause in failure-to-diagnose cases, I believe
that Fulton was incorrectly decided. Fulton’s simplistic formula fails to
consider that some patients would achieve a good result regardless of
whether they received proper or improper treatment and, conversely,
that some patients would achieve an unfavorable result regardless of the
quality of their treatment. In any formula assessing causation, patients
who would have had a favorable outcome regardless of treatment need to
be taken out of the equation. See, e.g., Waddell, A doctor’s view of
“opportunity to survive”: Fulton’s assumptions and math are wrong, 86
Mich B J 32 (March 2007). Accordingly, I agree with Justice MARKMAN that
Waddell’s formula is one method of accurately assessing causation in
cases in which there are multiple possible contributing causes.
13
I agree with Justice MARKMAN that if the Legislature desires to allow a
cause of action for lost opportunity, it should do so in a way that clearly
indicates when such claims are allowed and how they should be analyzed.
Post at 218 n 26. For example, Falcon’s analysis was based on a method
found in King, Causation, valuation, and chance in personal injury torts
involving preexisting conditions and future consequences, 90 Yale L J 1353
(1981), which identified several ways of analyzing lost-opportunity claims.
2008] STONE V WILLIAMSON 163
OPINION BY TAYLOR, C.J.

that plaintiff sustained injury and damages, and (3) that

the professional negligence or malpractice of that defen-
dant was a proximate cause of the injury and damages.
After giving these instructions, the court further in-
structed the jury: “I’m going to talk about damages. In an
action alleging claims of professional negligence against a
physician, even if you find professional negligence, the
Plaintiff cannot recover unless the Plaintiff’s chance of
having a better result was changed by greater than 50
percent.” Thus, after being instructed that it had to find
the traditional elements of medical malpractice and, in
addition, had to find that plaintiff had lost an opportunity
of greater than 50 percent, the jury returned a verdict
indicating it had found that all these elements were
satisfied. Indeed, a review of the record shows that plain-
tiff suffered amputations and other injuries, and from the
testimony presented the jury could have concluded that it
was more likely than not that the amputations and other
injuries were caused by the defendants’ negligence and
would not have occurred absent that negligence. Most
importantly, regardless of the jury’s finding of lost oppor-
tunity, it is clear from the way the instructions were given
that the jury found that the traditional elements were
met: defendants’ negligence more probably than not
caused plaintiff’s injuries. Thus, I believe that the jury
properly found that plaintiff had satisfied the causation
and injury elements. Accordingly, I would hold that rever-
sal is not required and would affirm the result of the
judgment of the Court of Appeals.

V. SUMMARY

In an attempt to clarify for the reader the majority

and minority positions on each issue, I provide the
following summary:
164 482 MICH 144 [July
OPINION BY TAYLOR, C.J.

All seven justices would affirm the result of the Court

of Appeals decision and the judgment for plaintiff. Six of
the justices believe that this is not a lost-opportunity
case; Justice MARKMAN would hold that it is such a case.
All seven justices believe that Fulton’s analysis is incor-
rect or should be found to no longer be good law, though
their reasons for doing so vary.14 Justices CORRIGAN and
YOUNG and I would find that Fulton is no longer good
law because we would hold that the statute is unen-
forceable as written. Justice MARKMAN would hold that
Fulton is inconsistent with the statutory language.
Justices WEAVER, CAVANAGH, and KELLY would hold that
Fulton is incorrect because it erroneously added words
to the statute when analyzing the phrase “the opportu-
nity.” Of the four justices holding that the statute is not
unenforceable as written (Justices WEAVER, CAVANAGH,
KELLY, and MARKMAN), only Justice MARKMAN would
define the term “opportunity” in accordance with the
Waddell article, while the other three (Justices WEAVER,
CAVANAGH, and KELLY) would define it in accordance
with Falcon, but with a higher threshold than Falcon
required. The same four justices (Justices WEAVER,
CAVANAGH, KELLY, and MARKMAN) would hold that loss of
the opportunity is, by itself, a compensable injury,
although the opportunity must be “lost”—that is, the
bad result must occur—in order for a claim to accrue.
Given this montage of issues and positions created by
the language of this statute, it would be helpful for the
14
However, because a majority of justices hold that this is not a
lost-opportunity case, the issue of the correctness of Fulton cannot be
reached, and Fulton’s approach remains undisturbed as the method of
analyzing lost-opportunity cases. Nonetheless, because the patient in
Fulton would likely have survived had she received a timely diagnosis, I
would assert that the claim should have been treated as one for ordinary
medical malpractice and that the lower courts erred in applying to it the
doctrine of lost opportunity.
2008] STONE V WILLIAMSON 165
OPINION BY CAVANAGH, J.

Legislature to reexamine its goal and the policies it

wishes to promote and strive to better articulate its
intent in that regard.

CORRIGAN and YOUNG, JJ., concurred with TAYLOR, C.J.

CAVANAGH, J. I agree with Chief Justice TAYLOR that the

evidence presented in this case supports a traditional
medical-malpractice claim; thus, I concur that the jury’s
verdict should be upheld. However, I do not agree with the
conclusion that the second sentence of MCL 600.2912a(2)
is incomprehensible and unenforceable. Therefore, I re-
spectfully disagree with Chief Justice TAYLOR’s analysis of
that provision.
Chief Justice TAYLOR identifies two problems with
MCL 600.2912a(2) that he believes render it partially
unenforceable: (1) the first and second sentences con-
flict and (2) the second sentence is incomprehensible. I
disagree, because the circumstances of the 1993 amend-
ment of this statute clarify the meaning of the statutory
language and resolve both concerns.

THE ORIGINS OF THE LOSS-OF-OPPORTUNITY DOCTRINE

The history of the loss-of-opportunity doctrine is

highly relevant to the interpretation of MCL
600.2912a(2) because this Court’s adoption of the doc-
trine evidently prompted the Legislature to add that
provision. In Falcon v Mem Hosp, 436 Mich 443; 462
NW2d 44 (1990), this Court first recognized the loss-of-
opportunity doctrine.1 Falcon involved a wrongful-
1
Justice LEVIN wrote Falcon’s lead opinion, which Justice ARCHER
signed. I joined Justice BOYLE’s opinion, which concurred in the recogni-
tion of the loss-of-opportunity cause of action, but clarified that we were
only called upon to determine whether such claims exist when the
ultimate harm is death. Thus, a majority of this Court agreed on the
166 482 MICH 144 [July
OPINION BY CAVANAGH, J.

death claim brought on behalf of a woman who had

suffered an amniotic embolism during childbirth. As in
all negligence cases, the plaintiff was required to show
causation to establish a valid medical-malpractice
claim. Falcon discussed various causation theories.
Some courts have required a plaintiff to establish “that
it is more probable, measured as more than fifty per-
cent, that, but for such negligence, the patient would
not have suffered the physical harm.” Id. at 449 (LEVIN,
J.). Falcon termed this the “more probable than not
standard.” Id. at 451. Under this standard, “a plaintiff
who establishes that the patient would have had more
than a fifty percent opportunity of not suffering physi-
cal harm had the defendant not acted negligently,
recovers one hundred percent of the damages.” Id. at
450. The plaintiff in Falcon could not have maintained
a wrongful-death action under the more-probable-than-
not standard—the decedent only had a 37.5 percent
chance of surviving even without the alleged malprac-
tice, so it was not more probable than not that the
physician’s malpractice caused the decedent’s death. Id.
at 460.
While the plaintiff in Falcon could not recover for the
injury of her granddaughter’s wrongful death, we ruled
that the plaintiff nevertheless had a different cause of
action available to her. Falcon adopted the approach
taken by other courts that recognized “loss of an
opportunity for a more favorable result, as distin-
guished from the unfavorable result, as compensable in
medical malpractice actions.” Id. at 461 (emphasis
added). “Under this approach, damages are recoverable
for the loss of opportunity although the opportunity lost
fundamental principles of the loss-of-opportunity doctrine, although
Justice BOYLE and I would have limited the discussion to the harm that
the Falcon plaintiff suffered—death.
2008] STONE V WILLIAMSON 167
OPINION BY CAVANAGH, J.

was less than even, and thus it was not more probable
than not that the unfavorable result would or could
have been avoided.” Id. at 461-462. Thus, the Falcon
decision explicitly recognized loss of an opportunity to
avoid physical harm as a distinct injury. A plaintiff
could bring a claim for loss of an opportunity to avoid
death, even if she could not maintain a claim for the
death itself because she could not establish causation
for the death.
Falcon’s approach to calculating damages for a loss-
of-opportunity claim also indicates that it treated the
lost opportunity as a distinct injury, not simply a direct
physical-harm injury that enjoyed a lower causation
standard. Because the plaintiff’s granddaughter in Fal-
con allegedly lost a 37.5 percent chance of survival, we
concluded that the appropriate measure of damages
would be “37.5 percent times the damages recoverable
for wrongful death . . . .” Id. at 471. Thus, generally
speaking, “ ‘[t]he proper computation of damages
would limit the damages recoverable to only that
amount of reduced chance of recovery actually caused
by the physician’s negligent conduct.’ ” Id. at 472 n 47
(citation omitted). We consulted Mays v United States,
608 F Supp 1476, 1482-1483 (D Colo, 1985), for its
method of computing damages attributable to the de-
fendant. Falcon, 436 Mich at 471-472 (LEVIN, J.). In
Mays, malpractice had reduced the patient’s opportu-
nity to survive from 40 to 15 percent, so the court
computed the damages by multiplying the opportunity
lost (40 minus 15) by the net pecuniary loss to deter-
mine the damages for the harm caused by the defen-
dant. Id. Calculating the damages this way permitted
the plaintiff “to recover damages only for the reduction
in the patient’s opportunity of survival.” Id. at 472.
This calculation isolates the value of the injury that can
be causally linked to a defendant’s negligence—the loss
168 482 MICH 144 [July
OPINION BY CAVANAGH, J.

of an opportunity. The value of a loss-of-opportunity

claim is measured by the extent of the loss; so, clearly,
the injury being compensated is the loss of a particular
amount of opportunity. By contrast, the measure of
damages in a traditional claim for wrongful death or
physical harm is, generally speaking, the value of dam-
ages attributable to the death or physical harm; as such,
the injury being compensated is the death or physical
harm.
In sum, when Falcon adopted the loss-of-opportunity
doctrine, it recognized that the injury of loss of an
opportunity was distinct from the injury of suffering
the associated physical harm—which, in that case, was
death. However, Falcon indicated that not all losses of
opportunity were actionable; rather, a plaintiff must
suffer the loss of a substantial opportunity for a better
result. “The cause of action accrues when harm and
damages result from the loss of a substantial opportu-
nity for a better result.” Id. at 470 n 43. We concluded
“that loss of a 37.5 percent opportunity of living consti-
tutes a loss of a substantial opportunity of avoiding
physical harm,” but declined to “decide what lesser
percentage would constitute a substantial loss of oppor-
tunity” in other circumstances. Id. at 470.
Finally, Falcon emphasized that a loss-of-opportunity
cause of action was not exempt from the more-probable-
than-not standard of causation. “Under this approach,
the plaintiff must establish more-probable-than-not
causation. He must prove, more probably than not, that
the defendant reduced the opportunity of avoiding
harm.” Id. at 462. Unlike a claim for wrongful death or
physical injury, the “patient . . . need not show that it
was probable, measured as more than fifty percent, that
the course of the disease and treatment would have
been different.” Id. at 470 n 43. Instead, “[i]t is suffi-
2008] STONE V WILLIAMSON 169
OPINION BY CAVANAGH, J.

cient to show, more probably than not, that had there been
a correct diagnosis, the patient would have had a substan-
tial opportunity of avoiding the course of the disease and
treatment that occurred.” Id. Therefore, while a claim for
loss of opportunity addresses a different injury than a
cause of action for the physical injury itself, it is still
subject to the same standard of proof of causation.
Falcon’s enunciation of the loss-of-opportunity doc-
trine is significant, because it apparently provoked the
Legislature to amend MCL 600.2912a. In 1993, the
Legislature amended that provision by adding a second
subsection, which states:
In an action alleging medical malpractice, the plaintiff
has the burden of proving that he or she suffered an injury
that more probably than not was proximately caused by the
negligence of the defendant or defendants. In an action
alleging medical malpractice, the plaintiff cannot recover
for loss of an opportunity to survive or an opportunity to
achieve a better result unless the opportunity was greater
than 50%. [MCL 600.2912a(2).]

The amendment was widely understood to be a direct

reaction to the Falcon decision. As a majority of this
Court noted, after Falcon adopted the lost-opportunity
doctrine, “[o]ur Legislature immediately rejected Fal-
con and the lost opportunity doctrine. MCL
600.2912a(2) . . . .” Weymers v Khera, 454 Mich 639,
649; 563 NW2d 647 (1997). I agree that the amendment
of MCL 600.2912a(2) was a reaction to Falcon, but I
would not characterize it as a rejection of the lost-
opportunity doctrine entirely. It merely established the
threshold for loss-of-opportunity claims.

THE PROPER INTERPRETATION OF MCL 600.2912a(2)

The Legislature’s addition of MCL 600.2912a(2)

should be read in light of the Falcon decision. This
170 482 MICH 144 [July
OPINION BY CAVANAGH, J.

Court follows the principle that when a statute uses a

common-law term and there is no clear legislative intent
to alter the common law, the term will be interpreted as
having the same meaning as at common law. Ford Motor
Co v City of Woodhaven, 475 Mich 425, 439; 716 NW2d
247 (2006). Additionally, the Legislature is presumed to be
aware of judicial interpretations of existing law when
passing legislation. Id. at 439-440. In this instance, the
Legislature appears to have reacted to a particular opinion
of this Court, so that opinion’s holdings offer considerable
insight into the Legislature’s intent. When interpreting
MCL 600.2912a(2), then, it is important to keep in mind
several principles established by the Falcon decision: (1)
loss-of-opportunity claims are subject to the more-
probable-than-not standard for proving causation, (2) the
“injury” in a loss-of-opportunity claim is the loss of a
substantial opportunity to avoid physical harm, not the
actual physical harm itself, and (3) loss of a 37.5 percent
opportunity of living constitutes a compensable loss of a
substantial opportunity to avoid physical harm. Chief
Justice TAYLOR interprets MCL 600.2912a(2) without con-
sidering these principles from Falcon, and thus comes to
the mistaken conclusion that the statute is unenforceable
and inconsistent with the lost-opportunity doctrine.
The first sentence of MCL 600.2912a(2) assigns a
medical-malpractice plaintiff “the burden of proving
that he or she suffered an injury that more probably
than not was proximately caused by the negligence of
the defendant or defendants.” Chief Justice TAYLOR
concludes that this sentence precludes lost-opportunity
claims because those claims only arise when a plaintiff
cannot prove that a defendant’s negligence more prob-
ably than not caused the plaintiff’s injury. Ante at 157.
But this overlooks two principles gleaned from Falcon
that the Legislature would have been aware of while
drafting this sentence: loss-of-opportunity claims are
2008] STONE V WILLIAMSON 171
OPINION BY CAVANAGH, J.

subject to the more-probable-than-not standard of cau-

sation and, in such claims, the “injury” is the loss of an
opportunity to avoid the physical harm, not the associ-
ated physical harm itself. When the first sentence of
MCL 600.2912a(2) is interpreted according to Falcon’s
articulation, its causation requirement does not pre-
clude claims for loss of opportunity. It simply codifies
the causation requirement that applies to claims for the
injury of suffering physical harm as well as claims for
the injury of the loss of an opportunity to avoid physical
harm. Just like Falcon, MCL 600.2912a(2) requires that
a plaintiff asserting a cause of action for loss of oppor-
tunity prove that the defendant more probably than not
caused the loss of an opportunity to survive or the loss
of an opportunity to achieve a better result.
The first sentence of MCL 600.2912a(2) should also
be interpreted in accordance with Falcon’s understand-
ing of the word “injury.” In medical-malpractice cases,
the underlying injury is quite often death or some
physical harm. But Falcon identified a distinct injury in
medical-malpractice cases—the loss of a substantial
opportunity to avoid physical harm. This is significant,
because a lost-opportunity plaintiff, by definition, can-
not prove that a defendant’s malpractice more probably
than not caused the patient to suffer physical harm or
death. Take the example of a patient who before treat-
ment had a 40 percent chance of survival as the result
of a preexisting condition. If that patient died after
being negligently treated by a physician, the plaintiff
would not be able to prove that the physician’s malprac-
tice more probably than not (50 percent or greater)
caused the patient’s death. There was a 60 percent
chance that the patient would have died regardless of
the malpractice, as a result of the preexisting condition.
But the plaintiff might be able to show that the physi-
cian’s malpractice more probably than not caused the
172 482 MICH 144 [July
OPINION BY CAVANAGH, J.

patient to lose up to a 40 percent chance of avoiding

death.2 The first sentence of MCL 600.2912a(2) simply
places this burden to prove causation on a plaintiff,
whether the alleged injury is the physical harm itself or
the loss of an opportunity to avoid harm.
Moreover, the explicit recognition of the loss-of-
opportunity doctrine in the second sentence of MCL
600.2912a(2) supports the conclusion that the Legisla-
ture did not intend to preclude lost-opportunity claims
by adopting the more-probable-than-not standard of
causation. The second sentence states: “In an action
alleging medical malpractice, the plaintiff cannot re-
cover for loss of an opportunity to survive or an oppor-
tunity to achieve a better result unless the opportunity
was greater than 50%.” MCL 600.2912a(2). If the
Legislature had intended to reject the lost-opportunity
doctrine, it would have entirely prohibited plaintiffs
from recovering for a loss of an opportunity. Instead, it
permitted recovery for loss of an opportunity under
certain circumstances—if the opportunity was greater
than 50 percent. This sentence merely sets the thresh-
old for invoking the loss-of-opportunity doctrine. It
requires that a plaintiff’s premalpractice opportunity to
survive or achieve a better result was greater than 50
percent.3
2
Chief Justice TAYLOR’s concern that redefining “injury” in this way
would permit recovery for a “lost chance alone, without proof of physical
injury” is unfounded. Ante at 157. By definition, one does not suffer the
loss of an opportunity to survive unless death occurs. Otherwise, there
would have been no opportunity lost. Similarly, a claim for the loss of an
opportunity to achieve a better result does not arise unless a plaintiff
suffered a verifiable loss. The loss is the injury that the lost-opportunity
doctrine recognizes. Typically, proof of an actionable loss will involve
actual physical harm suffered by the plaintiff. Defining injury as such will
not allow a plaintiff to recover for a potential future injury.
3
For example, a patient who had a premalpractice opportunity to
survive of 60 percent, and whose chance of survival was reduced to 20
2008] STONE V WILLIAMSON 173
OPINION BY CAVANAGH, J.

The conclusion that the first and second sentences of

MCL 600.2912a(2) do not conflict is also related to the
proper interpretation of the second sentence. Chief
Justice TAYLOR identifies an ambiguity in the second
sentence that, he contends, can only be resolved by
adding words or by redefining the term “injury.” Ante at
160.4 The Court of Appeals also identified this ambigu-
ity in Fulton v William Beaumont Hosp, 253 Mich App
70; 655 NW2d 569 (2002). Fulton described the ambi-
guity: the second sentence of the statute requires a
plaintiff to show either that the premalpractice oppor-
tunity was greater than 50 percent or that the oppor-
tunity was reduced by more than 50 percent. Id. at 77.
In short, the ambiguous term is the statute’s second use
of the word “opportunity.” I disagree with the conclu-
sion that none of the multiple, contradictory interpre-
tations can be shown to be the correct construction of
legislative intent. While reasonable minds could differ
with respect to the meaning of this statute, the correct
interpretation can be discerned by conventional means
of construction.
The proper interpretation of the second use of the
word “opportunity” in MCL 600.2912a(2) can be re-
solved by simply considering the entire text of the
sentence. The first time “opportunity” is used, the
statute speaks of recovery for “loss of an opportunity to
survive.” MCL 600.2912a(2). By using this term from
percent because of malpractice, would have a cause of action for loss of
opportunity to survive if he ultimately died. The plaintiff in that case
would not have a wrongful-death action because it was not more probable
than not that the negligence caused the patient’s death. But he could
have a cause of action for the loss of a 40 percent opportunity to survive,
because the patient’s premalpractice opportunity to survive was greater
than the threshold of 50 percent.
4
I disagree with the premise that a statute is ambiguous only if it is
equally susceptible to more than one meaning.
174 482 MICH 144 [July
OPINION BY CAVANAGH, J.

Falcon without modification, the Legislature adopted

Falcon’s articulation of the lost-opportunity cause of
action. And we know from Falcon that by the very
nature of a lost-opportunity claim, the opportunity
alleged to have been lost must be the premalpractice
opportunity. The word “opportunity” in the phrase
“loss of an opportunity” must refer to the premalprac-
tice opportunity because that is the opportunity that is
lost in some measure and, thus, creates a claim.
The second time “opportunity” is used in the sen-
tence, it is not preceded by the phrase “loss of an.” But
the statute’s replication of the term “opportunity”
within the same sentence clearly indicates that they
relate to each other and are to be construed identically.
Thus, the term “opportunity” in isolation has the same
meaning that it does within the phrase “loss of an
opportunity to survive.” Accordingly, a plaintiff cannot
recover for the loss of an opportunity unless the
opportunity—the premalpractice opportunity that was
allegedly lost in some measure—was greater than 50
percent. Thus, this interpretation does not require that
any words be added to the sentence; it merely requires
the word “opportunity” to be construed consistently
within the same sentence.
The other proposed meaning of the statute’s second
use of the word “opportunity” would conflict with the
sentence’s first use of the word. Instead of reading the
phrase “unless the opportunity was greater than 50%”
as written, this interpretation would infer the words
“loss of” in front of “opportunity.” Justice MARKMAN
advocates this interpretation. He concludes that “the
opportunity” clearly refers back to the “loss of an
opportunity,” and thus the sentence means that the loss
of the opportunity must be greater than 50 percent.
Post at 195. But this interpretation conflates the phrase
2008] STONE V WILLIAMSON 175
OPINION BY CAVANAGH, J.

“loss of an opportunity” with the phrase “the opportu-

nity.” It assumes that the Legislature used the phrase
“the opportunity” as a shorthand reference for “loss of
an opportunity” and requires the reader to infer the
phrase “loss of” before the second use of the word
“opportunity.” This interpretation is less plausible than
my interpretation, which gives the term “opportunity”
the same meaning regardless of whether it appears
alone or within the phrase “loss of an opportunity,” and
does not require reading language into the statute.5 In
sum, I cannot conclude that this competing interpreta-
tion is correct when it poses linguistic problems that are
not found in the other interpretation.
Moreover, interpreting the word “opportunity” to
mean premalpractice opportunity comports with the
purpose of the statute and the context in which it was
adopted, while the other interpretation does not. Falcon
adopted the loss-of-opportunity doctrine to provide a
cause of action to plaintiffs who could not establish
causation for physical harm, but could establish causa-
tion for the loss of a substantial opportunity to avoid
that physical harm. MCL 600.2912a(2) cannot limit
5
Justice MARKMAN denies that he reads words into the statute. Post at
195 n 10. But it is telling that Justice MARKMAN has solved the inference
problem present in his interpretation by repeatedly misquoting the
statute. For example, he reports that MCL 600.2912a(2) “states that the
‘lost opportunity’ must be greater than 50 percent . . . .” Post at 195 n 10.
He repeats that MCL 600.2912a(2) “requires that the ‘lost opportunity’
be ‘greater than 50%’ ” in another portion of his opinion, post at 196, and
later states that MCL 600.2912a(2) “only allows a plaintiff to recover for
a ‘loss of an opportunity’ that was ‘greater than 50%,’ ” post at 197. The
selective positioning of these phrases artfully suggests that the statute
actually says that the lost opportunity must be greater than 50 percent.
But, in fact, the statute simply requires that “the opportunity was greater
than 50%.” MCL 600.2912a(2) (emphasis added). The fact that Justice
MARKMAN is compelled to recharacterize the text of the statute in this way
strongly suggests that his interpretation infers the word “lost” before the
word “opportunity.”
176 482 MICH 144 [July
OPINION BY CAVANAGH, J.

recovery for the loss of an opportunity to cases in which

the loss was greater than 50 percent, because any
plaintiff who satisfied that condition would have a
traditional medical-malpractice claim for the death or
physical harm itself.6 A plaintiff who can show that
malpractice caused the loss of a more than 50 percent
opportunity to avoid death or physical harm can meet
the more-probable-than-not standard of causation for
the associated death or physical harm. This interpreta-
tion would permit a loss-of-opportunity claim when a
6
Justice MARKMAN asserts that I am incorrect on this point because, for
example, plaintiff in this case can show that he lost an 80 percent
opportunity to achieve a better result (no amputation), but “cannot prove
that defendant’s malpractice caused the amputation, as he would be
required to do in a traditional medical-malpractice action . . . because
there was at least a 1 percent chance that plaintiff would have suffered an
amputation even with proper treatment.” Post at 214. From this argu-
ment, it would appear that Justice MARKMAN believes that medical-
malpractice actions require a plaintiff to prove that a defendant’s
negligence was a 100 percent cause of his injury. However, we have
explained that the element of “cause in fact” in negligence does not
require a plaintiff to “prove that an act or omission was the sole catalyst
for his injuries . . . .” Craig v Oakwood Hosp, 471 Mich 67, 87; 684 NW2d
296 (2004). Rather, a plaintiff “must introduce evidence permitting the
jury to conclude that the act or omission was a cause.” Id. This is
consonant with the caselaw of other jurisdictions, and holds true regard-
less of whether a plaintiff’s preexisting condition was a possible cause of
his injury. In medical-malpractice cases,

the courts have uniformly adopted the position that proof of

causation does not require that it be shown that the patient was
certain to have recovered or improved with sound medical care, and
it has often been said that the plaintiff may sustain the burden of
establishing proximate causation with evidence that it was prob-
able, or more likely than not, that the patient would have been
helped by proper treatment. [Anno: Medical malpractice: “Loss of
chance” causality, 54 ALR4th 10, 18 (emphasis added).]

The Legislature codified this position in MCL 600.2912a(2), which gives

the plaintiff the burden of proving that the defendant’s negligence more
probably than not proximately caused his injury.
2008] STONE V WILLIAMSON 177
OPINION BY CAVANAGH, J.

plaintiff’s chance for survival was reduced from 80

percent to 20 percent, but not when the plaintiff’s
chance for survival was reduced from 80 percent to 40
percent. It would not make sense to permit a plaintiff
whose chance of survival was reduced from 80 percent
to 20 percent to bring a lost-opportunity claim, because
that plaintiff could show that the negligence more
probably than not caused the death, thus establishing a
traditional wrongful-death claim. Meanwhile, the stat-
ute would deny recovery for the loss of an opportunity
to a plaintiff who suffered death, but could only show
that the malpractice reduced his opportunity to survive
from 80 percent to 40 percent. The plaintiff in that case
would be left with no cause of action at all; he could not
meet the more-probable-than-not standard of causation
for the injury of death, and he would be precluded from
bringing a lost-opportunity claim because he lost only
40 percent of his opportunity. This cannot be the result
intended by the Legislature. This interpretation of the
statute would prevent Falcon’s intended class of plain-
tiffs from bringing a loss-of-opportunity claim, while
still recognizing a cause of action for loss of opportunity.
It would provide a class of plaintiffs who already have a
traditional medical-malpractice cause of action with an
additional cause of action for loss of opportunity. Such a
result is illogical in light of one significant purpose of
the statute—to codify the loss-of-opportunity doctrine
recognized in Falcon.
Finally, interpreting the statute as referring to the
premalpractice opportunity is consistent with the his-
tory of the amendment. That is, MCL 600.2912a(2) is
understood to be a legislative reaction to Falcon. MCL
600.2912a(2) retained the loss-of-opportunity doctrine,
so it could not have been intended to entirely preclude
the class of plaintiffs recognized by Falcon from bring-
ing such claims; such a drastic step would be entirely at
178 482 MICH 144 [July
OPINION BY CAVANAGH, J.

odds with the rationale of the loss-of-opportunity doc-

trine. Rather, MCL 600.2912a(2) retained the doctrine,
but set the threshold at 50 percent, so that only
plaintiffs who had a greater than 50 percent premal-
practice opportunity to survive or achieve a better
result could bring a claim. This interpretation is the
only reasonable explanation for the Legislature’s
action—it aligns with the Legislature’s apparent intent
to both endorse the doctrine and place a limit on it. In
sum, I concur with Chief Justice TAYLOR that plaintiff in
this case proved a traditional medical-malpractice claim
based on his physical injuries and that the jury’s verdict
should be upheld.7 Plaintiff did not assert, or need to
resort to, a claim for loss of opportunity. However, I
disagree that the second sentence of MCL 600.2912a(2)
is substantially incomprehensible. The correct interpre-
7
There was adequate evidence that the doctor’s malpractice proxi-
mately caused plaintiff’s injuries. It is undisputed that plaintiff’s aneu-
rysm ruptured and that he suffered amputation of his legs as a result.
The jury heard testimony that, had plaintiff been diagnosed earlier and
undergone elective surgery, his chance of having complete success with
no complications would have been approximately 95 percent, his chance
of death would have been 1 to 5 percent, and his chance of amputation
would have been 1 percent. Given the rupture, his approximate chance of
complete success with no complications dropped to 5 to 10 percent, his
chance of death became 60 to 90 percent, and his chance of surviving, but
suffering amputation, became 5 percent. When a patient’s chance of
complete success drops from 95 percent to less than 10 percent because
of a doctor’s malpractice, and the patient suffers one of the natural
complications, the jury’s conclusion that the malpractice proximately
caused that injury is warranted. If the jury in this case could only have
considered the specific risk of amputation, as Justice MARKMAN suggests,
post at 216 n 25, plaintiff would essentially be penalized for managing to
survive an event that few others do. While the risks associated with
harms that were not actually suffered by a plaintiff are not relevant to
the extent of a plaintiff’s lost opportunity, potential risks stemming from
a physician’s malpractice may be relevant to the jury’s determination of
whether malpractice caused a plaintiff to suffer a particular harm rather
than achieve a good result.
2008] STONE V WILLIAMSON 179
OPINION BY CAVANAGH, J.

tation of the second sentence can be discerned by an

examination of the text of the statute. The result of this
analysis is confirmed by the history of both the loss-of-
opportunity doctrine and the statute. There is no inter-
nal conflict within the statute. The loss-of-opportunity
doctrine is entirely consistent with the more-probable-
than-not causation standard, so there is no conflict
between the first and second sentences of MCL
600.2912a(2).

RESPONSE TO JUSTICE MARKMAN

Justice MARKMAN’s approach to interpreting MCL

600.2912a(2) is grounded in several faulty premises.
The first is that traditional medical-malpractice cases
require that there be “no question that the proper
treatment would have resulted in a good outcome,”
because otherwise “it cannot be proved that the im-
proper treatment caused the bad outcome.” Post at 217.
This proposition would preclude plaintiffs with preex-
isting conditions that might have contributed slightly to
their injuries from bringing medical-malpractice claims.
It would also preclude medical-malpractice claims from
arising in situations in which proper medical treatment
does not always succeed.8 This proposition cannot be
8
Justice MARKMAN cites no authority for the proposition that a plaintiff
may only recover for traditional medical malpractice if proper treatment
would not have resulted in the bad result suffered by the plaintiff. If true,
that principle would foreclose virtually all traditional medical-
malpractice cases. With almost any medical procedure, there is a statis-
tical probability that a patient will experience a bad result, even if the
procedure is performed properly. As just one example, the Food and Drug
Administration (FDA) counsels patients considering LASIK eye surgery
that while “[m]ost patients are very pleased with the results of their
refractive surgery[,] . . . like any other medical procedure, there are risks
involved.” Food and Drug Administration, Center for Devices and Radio-
logical Health <http://www.fda.gov/cdrh/LASIK/risks.htm> (accessed
July 2, 2008). The FDA advises that the risks of LASIK surgery include
180 482 MICH 144 [July
OPINION BY CAVANAGH, J.

correct. Plaintiffs alleging medical malpractice, regard-

less of whether they have preexisting conditions, are
not required to prove that a defendant was a 100
percent cause of their injuries; they must simply prove
more-probable-than-not causation. After all, traditional
medical-malpractice claims are subject to the same
principles of causation as other negligence claims. As
Prosser & Keeton, Torts (5th ed), § 41, p 270, notes,
“[w]hen a child is drowned in a swimming pool, no one
can say with certainty that a lifeguard would have saved
the child; but the experience of the community permits
the conclusion that the absence of the guard played a
significant part in the drowning.” There is no reason to
treat medical-malpractice claims any differently in this
regard. For example, even if an expert testified that a
properly performed medical procedure will avoid a bad
result 99 percent of the time, a jury could still conclude
that the physician’s negligence was more probably than
not the cause of the bad result. See post at 217.
Second, Justice MARKMAN’s approach suggests that
the factor distinguishing a medical-malpractice claim
from a lost-opportunity claim is whether there is an-
other possible cause of an injury, such as a preexisting
condition. He states:
. . . I conclude that a “lost opportunity” case is one in
which it is at least possible that the bad outcome would
have occurred even if the patient had received proper
treatment. By contrast, if there is no question that the

loss of vision, debilitating visual symptoms, and severe dry eye syndrome.
Id. In sum, “[t]here are never any guarantees in medicine.” Id. Within
the realm of eye surgery alone, Justice MARKMAN’s rule would mean that
any LASIK patient who experienced a loss of vision, debilitating visual
symptoms, or severe dry eye syndrome would not be able to bring a
traditional medical-malpractice claim simply because there was a chance,
however slight, that those conditions would have occurred as a result of
the properly performed LASIK procedure itself.
2008] STONE V WILLIAMSON 181
OPINION BY CAVANAGH, J.

proper treatment would have resulted in a good outcome,

then the patient who suffered a bad outcome has a tradi-
tional medical-malpractice action. [Post at 186.]

But this definition of a lost-opportunity case is contrary

to both the doctrine as described by Falcon and the
doctrine as adopted by the Legislature in MCL
600.2912a(2). The distinction between a lost-
opportunity case and a medical-malpractice case does
not pivot on a plaintiff’s preexisting condition or the
absolute certainty that proper medical treatment would
have prevented the harm the plaintiff suffered. Rather,
the determining factor is whether the plaintiff can
prove, more probably than not, that the defendant’s
negligence caused physical harm. If a plaintiff can prove
more-probable-than-not causation for physical harm,
then he has a medical-malpractice claim for that injury.
If not, he may have a claim for loss of opportunity to
avoid harm, if he can prove that the defendant’s negli-
gence caused that injury: the loss of an opportunity to
avoid harm. Of course, many lost-opportunity cases
arise when a plaintiff has a preexisting condition that
could have caused physical harm without negligence,
but this is a correlation, not a cause. The fact that a
plaintiff has a preexisting condition does not, by itself,
cause a claim to be a lost-opportunity claim rather than
a medical-malpractice claim. Similarly, the existence of
other possible causes for a bad result does not deter-
mine the cause of action available to that plaintiff.
Specifically, the possibility that a patient’s disease or
injury itself may have caused the bad result does not
mean that the patient cannot bring a traditional
medical-malpractice claim.9 Rather, as Falcon ex-
9
Justice MARKMAN offers the hypothetical treatment of a broken leg to
show that his theory of traditional medical-malpractice claims is consis-
tent with traditional causation principles. But he indicates just the
182 482 MICH 144 [July
OPINION BY CAVANAGH, J.

plained, traditional medical-malpractice claims require

a plaintiff to show that the negligence more probably
than not caused physical harm. Falcon, 436 Mich at
449. The Legislature adopted Falcon’s term “loss of
opportunity” as well as the traditional more-probable-
than-not standard of causation. Accordingly, there is no
reason to conclude that the distinguishing feature be-
tween medical-malpractice claims and lost-opportunity
claims is the existence of other possible causes of the
harm, as Justice MARKMAN appears to posit.
These faulty suppositions are significant, because
they lead Justice MARKMAN to endorse Dr. Roy Waddell’s
formula for calculating loss of opportunity. Waddell’s
formula purports to calculate a plaintiff’s lost opportu-
nity to survive by determining “what percent of pa-
tients who would die without treatment” could other-
wise “be saved with treatment.”10 If proper treatment
creates a greater than 50 percent chance of survival
within the set of patients who would have died without
treatment, then a cause of action exists. But Waddell’s
formula is flawed for several reasons. It operates from a
mistaken understanding of a lost-opportunity case. The
formula identifies plaintiffs who can show that negli-
gence was more than a 50 percent cause of their death
or physical harm. But that set of plaintiffs can, by
definition, maintain a traditional cause of action for
medical malpractice for the injury of death or physical
harm itself. Accordingly, his formula would preclude
true lost-opportunity plaintiffs from bringing claims
opposite, by precluding a medical-malpractice claim unless administering
proper treatment would never produce permanent damage. Assuming
that a patient was treated, this requirement eliminates the possibility
that another force (such as the natural progression of the broken leg
itself), rather than negligence, caused the permanent damage to the leg.
10
Waddell, A doctor’s view of “opportunity to survive”: Fulton’s as-
sumptions and math are wrong, 86 Mich B J 32, 33 (March 2007).
2008] STONE V WILLIAMSON 183
OPINION BY CAVANAGH, J.

and provide medical-malpractice claimants with lost-

opportunity causes of action for which they have no
need. Moreover, aside from its theoretical problems, the
Waddell formula is blatantly inconsistent with the
language of MCL 600.2912a(2).11 It is inconceivable that
Justice MARKMAN can read the sentence “In an action
alleging medical malpractice, the plaintiff cannot re-
cover for loss of an opportunity to survive or an oppor-
tunity to achieve a better result unless the opportunity
was greater than 50%” and conclude that it should be
translated into this formula:
(Premalpractice chance) – (Postmalpractice chance)
__________________________________________________________
x 100
100 – (Postmalpractice chance)

This formula has no basis in the language of MCL

600.2912a(2) or Falcon. MCL 600.2912a(2) simply re-
quires that the opportunity was greater than 50 percent.
Again, it is noteworthy that my interpretation does not
require adding any inferred language to the statute. A
plaintiff’s premalpractice opportunity to survive or to
achieve a better result must simply have been “greater
than 50%.” The approach taken by Justice MARKMAN and
Dr. Waddell requires this sentence to be rewritten to state
11
Justice MARKMAN opines that in the matter of MCL 600.2912a(2),
“there is quite likely some disconnection between what the Legislature
may have had in mind and what it actually enacted.” Post at 198 n 15. Yet,
despite appearing to believe that the Legislature’s intent may not
correlate to the words of MCL 600.2912a(2), Justice MARKMAN is never-
theless convinced that he can discern the Legislature’s intent from the
statutory language. Further, he argues that the Waddell formula is
consistent with the statutory language, even while conceding that the
Legislature may not have had the concept that was later embodied in
Waddell’s formula specifically in mind when it enacted MCL
600.2912a(2). I think it is more than merely possible that the Legislature
did not have this concept in mind when it crafted this law; notably,
Waddell’s article was not even published until 2007, long after the
Legislature amended MCL 600.2912a(2) in 1993.
184 482 MICH 144 [July
OPINION BY CAVANAGH, J.

that the plaintiff’s opportunity to survive or to achieve a

better result must have been decreased by 50 percent. See
post at 195-197.
Finally, the Waddell approach leads to such anoma-
lous results that it cannot possibly reflect the intention
of the Legislature. The Legislature crafted MCL
600.2912a(2) as a reaction to Falcon, which permitted a
lost-opportunity cause of action when the plaintiff’s
premalpractice opportunity to survive was 37.5 percent.
As Justice MARKMAN acknowledges, if a plaintiff
dropped from a 99.99 percent premalpractice chance of
survival to a 99.97 percent postmalpractice chance of
survival, the Waddell formula would conclude that the
plaintiff had experienced an actionable 66.67 percent
loss of opportunity. On the other hand, recovery would
be barred if a plaintiff dropped from a 60 percent
premalpractice chance of survival to a 40 percent
chance of survival, because the plaintiff would have
experienced only a 33 percent loss of opportunity. It is
unlikely that the Legislature intended to compensate a
loss of just 0.02 percentage points, while simultaneously
precluding a loss of 20 percentage points. It is more
likely that the Legislature disagreed with the threshold
limit for lost-opportunity cases established by Falcon,
37.5 percent, and amended MCL 600.2912a(2) to raise
the threshold to 50 percent.

RESPONSE TO CHIEF JUSTICE TAYLOR

While we reach different interpretations of MCL

600.2912a(2), I nevertheless agree with Justice MARKMAN
that Chief Justice TAYLOR errs by concluding that the
second sentence of the statute is incomprehensible and
unenforceable. I share Justice MARKMAN’s objection to the
unprecedented approach Chief Justice TAYLOR has taken
in concluding that this statute is unenforceable simply
2008] STONE V WILLIAMSON 185
OPINION BY MARKMAN, J.

because it presents a complex matter of interpretation.

While the fracture of this Court on this matter certainly
illustrates the difficulty of interpreting this statute, I
disagree that it compels the conclusion that the statute is
unenforceable. And, in fact, Chief Justice TAYLOR’s opin-
ion paradoxically indicates that the statute will continue
to be enforced unless the Legislature amends it, because
the Fulton panel’s interpretation will remain controlling
law. Ante at 164 n 14.

CONCLUSION

I disagree with Chief Justice TAYLOR’s conclusion

that the second sentence of MCL 600.2912a(2) is incom-
prehensible and cannot be judicially enforced. There-
fore, I respectfully disagree with his analysis of that
provision. However, I agree that the jury’s verdict
should be upheld, because plaintiff has presented evi-
dence that supports a traditional medical-malpractice
claim.

WEAVER and KELLY, JJ., concurred with CAVANAGH, J.

MARKMAN, J. (concurring in the result only). We

granted leave to appeal to address the proper interpre-
tation of the second sentence of MCL 600.2912a(2),
which states: “In an action alleging medical malprac-
tice, the plaintiff cannot recover for loss of an opportu-
nity to survive or an opportunity to achieve a better
result unless the opportunity was greater than 50%.”
Chief Justice TAYLOR’s opinion concludes that this sen-
tence is “substantially incomprehensible,” and, there-
fore, “unenforceable.” Ante at 147, 161, 164. Although
this statutory language is by no means a model of
clarity, I am in accord with Justice CAVANAGH’s opinion
that the “lost opportunity” provision is enforceable.
186 482 MICH 144 [July
OPINION BY MARKMAN, J.

However, Justice CAVANAGH concludes that the “lost

opportunity” provision requires only that the patient’s
premalpractice chance to survive or obtain a better
result be greater than 50 percent. Finally, he concludes
that this is not even a “lost opportunity” case. In these
respects, I also disagree with his opinion.
Instead, I conclude that a “lost opportunity” case is
one in which it is at least possible that the bad outcome
would have occurred even if the patient had received
proper treatment. By contrast, if there is no question
that the proper treatment would have resulted in a good
outcome, then the patient who has suffered a bad
outcome has a traditional medical-malpractice action.
In order for a traditional medical-malpractice plaintiff
to prevail, he or she must prove that the bad outcome
was more probably than not caused by the defendant’s
malpractice. In order for a “lost opportunity” plaintiff
to prevail, he or she must prove that the “lost opportu-
nity” to achieve a better result was more probably than
not caused by the defendant’s malpractice and that the
“lost opportunity” was greater than 50 percent. In
order to determine whether the “lost opportunity” was
greater than 50 percent, the postmalpractice chance of
obtaining a better result must be subtracted from the
premalpractice chance, the postmalpractice chance
must then be subtracted from 100, the former number
must be divided by the latter number, and then this
quotient must be multiplied by 100 to obtain a percent-
age. If this percentage is greater than 50, the plaintiff
may be able to prevail; if this percentage is 50 or less,
then the plaintiff cannot prevail.
Because it is possible that the bad outcome in the
instant case, i.e., amputation, would have occurred even
if plaintiff had received proper treatment, given that
there was some chance of amputation in the latter circum-
2008] STONE V WILLIAMSON 187
OPINION BY MARKMAN, J.

stance, this is a “lost opportunity” action. Because plain-

tiff’s “lost opportunity” was greater than 50 percent,1 I
would affirm the result reached by the Court of Ap-
peals.

I. “LOST OPPORTUNITY”

A. COMMON LAW

This Court first recognized a “lost opportunity”

claim in Falcon v Mem Hosp, 436 Mich 443; 462 NW2d
44 (1990). In Falcon, the plaintiff’s expert witness
testified that had the defendant physician not been
negligent, the plaintiff’s decedent would have had a
37.5 percent chance of surviving. Before Falcon, plain-
tiffs claiming medical malpractice were required to
prove that the malpractice in fact caused the patient’s
physical harm. Falcon, 436 Mich at 448-449 (LEVIN, J.).
Thus, in a wrongful-death case grounded in medical
malpractice, the plaintiff was required to prove that the
malpractice in fact caused the patient’s death. In Fal-
con, the defendants argued that because the patient’s
premalpractice chance of survival was only 37.5 per-
cent, the plaintiff could not prove that the malpractice
caused the patient’s death; the patient might very well
have died even with proper treatment.
Although this Court agreed with the defendants that
the plaintiff could not prove that the malpractice caused
the patient’s death, it nonetheless held that the plaintiff
could prove that the malpractice caused the patient to
suffer the loss of a 37.5 percent opportunity to survive.
Id. at 460. “In reducing [the patient’s] opportunity of
living . . . , her physician caused her harm, although it
cannot be said . . . that he caused her death.” Id. “We
1
99 – 95
___________
x 100 = 80%
100 – 95
188 482 MICH 144 [July
OPINION BY MARKMAN, J.

thus see the injury resulting from medical malpractice

as not only, or necessarily, physical harm, but also as
including the loss of opportunity of avoiding physical
harm” because a “patient goes to a physician precisely
to improve his opportunities of avoiding, ameliorating,
or reducing physical harm . . . .” Id. at 461. Thus, we
recognized a “loss of an opportunity for a more favor-
able result, as distinguished from the unfavorable re-
sult [itself], as compensable in medical malpractice
actions.” Id.2 “Under this approach, damages are recov-
erable for the loss of opportunity although the oppor-
tunity lost was less than even, and thus it is not more
probable than not that the unfavorable result would or
could have been avoided.” Id. at 461-462.3
2
Justice ARCHER signed the lead opinion written by Justice LEVIN, and
Justice BOYLE wrote a concurring opinion, which Justice CAVANAGH joined,
that stated:

I concur in the recognition of “lost opportunity to survive” as

injury for which tort law should allow recovery in proportion to the
extent of the lost chance of survival, ante, [436 Mich at] 466,
provided that the negligence of the defendant more probably than
not caused the loss of opportunity. However, I would emphasize
that the Court today is called upon to decide the viability of a claim
for “lost opportunity” only where the ultimate harm to the victim
is death. Thus, any language in the lead opinion suggesting that a
similar cause of action might lie for a lost opportunity of avoiding
lesser physical harm is dicta. [Falcon, 436 Mich at 472-473 (BOYLE,
J., concurring).]
3
“[C]onsider the case in which a doctor negligently fails to
diagnose a patient’s cancerous condition until it has become
inoperable. Assume further that even with a timely diagnosis the
patient would have had only a 30% chance of recovering from the
disease and surviving over the long term. There are two ways of
handling such a case. Under the traditional approach, this loss of
a not-better-than-even chance of recovering from the cancer would
not be compensable because it did not appear more likely [than]
not that the patient would have survived with proper care. . . . A
more rational approach, however, would allow recovery for the loss
of the chance of cure even though the chance was not better than
2008] STONE V WILLIAMSON 189
OPINION BY MARKMAN, J.

However, even “[u]nder this approach, the plaintiff

must establish more-probable-than-not causation.” Id. at
462. That is, the plaintiff “must prove, more probably
than not, that the defendant reduced the opportunity of
avoiding harm.” Id. Therefore, in both a traditional
medical-malpractice action, in which the alleged injury is
the physical injury itself, and a “lost opportunity” action,
in which the alleged injury is the “lost opportunity” to
achieve a better result, the plaintiff must prove that it is
more probable than not that the defendant’s malpractice
caused the injury. In other words, the difference between
these two causes of action is not the standard of proof for
causation, but the nature of the alleged injury.
This Court also held that the “lost opportunity” must
be a “substantial” lost opportunity. Id. at 470. However,
this Court did not define the parameters of a “substan-
tial” lost opportunity other than to say that the “loss of
a 37.5 percent opportunity of living constitutes a loss of
a substantial opportunity of avoiding physical harm.”
Id.4 This Court explained that a “37.5 percent opportu-
nity of living is hardly the kind of opportunity that any
of us would willingly allow our health care providers to
ignore.” Id. at 460.5
even. . . . While the plaintiff here could not prove by a preponder-
ance of the evidence that he was denied a cure by the defendant’s
negligence, he could show by a preponderance that he was de-
prived of a 30% chance of a cure.” [Falcon, 436 Mich at 462 n 26,
quoting King, Causation, valuation, and chance in personal injury
torts involving preexisting conditions and future consequences, 90
Yale L J 1353, 1363-1364 (1981).]
4
This Court expressly stated: “We need not now decide what lesser
percentage would constitute a substantial loss of opportunity.” Falcon,
436 Mich at 470 (LEVIN, J.).
5
In Falcon, the patient’s premalpractice chance of survival was 37.5
percent. The Court did not indicate what the patient’s postmalpractice
190 482 MICH 144 [July
OPINION BY MARKMAN, J.

Finally, this Court held that “recovery should be

allowed ‘only for the lost chance of survival.’ ” Id. at 471
(citation omitted) (emphasis in original). That is, the
“ ‘proper computation of damages would limit the dam-
ages recoverable to only that amount of reduced chance
of recovery actually caused by the physician’s negligent
conduct.’ ” Id. at 472 n 47 (citation omitted). Therefore,
we concluded that if the jury were to find that the
physician’s malpractice more probably than not had
caused the patient to lose a 37.5 percent opportunity to
survive, “37.5 percent times the damages recoverable
for wrongful death would be an appropriate measure of
damages.” Id. at 471.6
In Weymers v Khera, 454 Mich 639, 642; 563 NW2d
647 (1997), this Court refused to “recognize a cause of
action for the loss of an opportunity to avoid physical
chance of survival was. It appears that the Court may simply have
assumed, erroneously, that the patient’s postmalpractice chance of sur-
vival was zero percent, given that the patient died. However, because
somebody dies does not mean that the person had a zero percent chance
of survival.
6
As Professor King has explained:

A better method of valuation would measure a compensable

chance as the percentage probability by which the defendant’s
tortious conduct diminished the likelihood of achieving some more
favorable outcome. . . .

To illustrate, consider a patient who suffers a heart attack and

dies as a result. Assume that the defendant-physician negligently
misdiagnosed the patient’s condition, but that the patient would
have had only a 40% chance of survival even with a timely
diagnosis and proper care. Regardless of whether it could be said
that the defendant caused the decedent’s death, he caused the loss
of a chance, and that chance-interest should be completely re-
dressed in its own right. Under the proposed rule, the plaintiff’s
compensation for the loss of the victim’s chance of surviving the
heart attack would be 40% of the compensable value of the victim’s
life had he survived . . . . [King, 90 Yale L J at 1382.]
2008] STONE V WILLIAMSON 191
OPINION BY MARKMAN, J.

harm less than death.”7 Although Weymers did not

overrule Falcon, it clearly disagreed with Falcon8 and
“refuse[d] to extend Falcon.” Id. at 649. In Weymers,
the plaintiff’s expert testified that “if defendants had
given plaintiff proper care she would have had a thirty
to forty percent chance of retaining the functioning of
her kidneys.” Id. at 644. However, the plaintiff did not
receive proper care and her kidneys totally failed,
requiring her to undergo a kidney transplant. Because
the plaintiff’s premalpractice chance to avoid kidney
failure was not greater than 50 percent, Weymers held
that she could not prove that the malpractice more
probably than not caused her kidney failure. The Court
refused to recognize a cause of action for the plaintiff’s
“lost opportunity” to avoid kidney failure.
In doing so, Weymers, in my judgment, mischaracter-
ized the “lost opportunity” doctrine that had been
developed in Falcon. Weymers stated: “The antithesis of
proximate cause is the doctrine of lost opportunity,”
because the “lost opportunity doctrine allows a plaintiff
to recover when the defendant’s negligence possibly,
i.e., a probability of fifty percent or less, caused the
plaintiff’s injury.” Id. at 648. Weymers also accused the
7
Although Weymers was decided after the Legislature enacted the
statutory provision at issue in this case, the Court applied the common
law rather than the statute because the alleged negligence occurred
before the statute was enacted. It is also worth mentioning that Weymers
refused to recognize a common-law claim for a “lost opportunity” to avoid
physical harm less than death, although the statute expressly allows
those claims. Finally, Weymers stated that “[o]ur Legislature immediately
rejected Falcon and the lost opportunity doctrine.” Weymers, 454 Mich at
649. For the reasons discussed later, I do not believe that this is entirely
accurate.
8
That Weymers disagreed with Falcon explains why Justice BOYLE, who
concurred in Falcon, only concurred in the result reached in Weymers and
why Justice CAVANAGH, who joined Justice BOYLE’s concurrence in Falcon,
dissented in Weymers. It is also interesting to note that the dissenting
justice in Falcon was the authoring justice in Weymers.
192 482 MICH 144 [July
OPINION BY MARKMAN, J.

Falcon Court of “lower[ing] the standard of causation”

and “allow[ing] [a plaintiff] to recover without estab-
lishing cause in fact.” Id. at 650. Finally, Weymers stated
that under the Falcon approach, “the plaintiff must
show that there is a substantial possibility that the
defendant’s negligence caused his injury,” and, thus, a
plaintiff is allowed “to recover for his injury even
though it was more likely than not that he would have
suffered the injury if the defendant had not been
negligent.” Id. at 651.
Although Weymers noted that Falcon had “defined
the injury as the loss of opportunity to avoid the harm,
i.e., the death, rather than the harm itself,” Weymers
failed to recognize the significance of this distinction, as
shown by its very next sentence, which stated that
Falcon’s approach allows “ ‘a plaintiff [to] receive[]
compensation despite the greater probability that he or
she would have suffered the injury even if the physician
had used due care.’ ” Id. at 651 n 19 (citation omitted).
This is further shown by the fact that the Weymers
majority believed that it would have to “scrap[]” or
“discard” causation in order to “recognize a cause of
action for the loss of an opportunity to avoid physical
harm less than death.” Id. at 653.
However, as discussed earlier, Falcon did not lower
the standard of causation when it adopted the “lost
opportunity” doctrine. Falcon, 436 Mich at 462 (LEVIN,
J.). Instead, it applied the same standard of causation,
i.e., more probable than not, to a new type of injury, i.e.,
a “lost opportunity” to survive. Id. Falcon specifically
held that a plaintiff bringing a “lost opportunity” claim
“must prove, more probably than not, that the defen-
dant reduced the opportunity of avoiding harm.” Id.
2008] STONE V WILLIAMSON 193
OPINION BY MARKMAN, J.

Therefore, Weymers erred when it described the “lost

opportunity” doctrine developed in Falcon as lowering
the standard of causation.

B. STATUTORY PROVISION

In 1993, three years after Falcon was decided, the

Legislature enacted MCL 600.2912a(2), which provides:
In an action alleging medical malpractice, the plaintiff
has the burden of proving that he or she suffered an injury
that more probably than not was proximately caused by the
negligence of the defendant or defendants. In an action
alleging medical malpractice, the plaintiff cannot recover
for loss of an opportunity to survive or an opportunity to
achieve a better result unless the opportunity was greater
than 50%.

Everybody agrees that this provision was enacted in

response to this Court’s decision in Falcon.
In Wickens v Oakwood Healthcare Sys, 465 Mich 53,
62; 631 NW2d 686 (2001), this Court held that “a living
plaintiff may not recover for loss of an opportunity to
survive on the basis of a decrease in her chances of
long-term survival.” The plaintiff’s expert testified that
the defendants’ negligent one-year delay in diagnosing
her breast cancer had caused plaintiff to suffer a
reduction in her chances of surviving another 10 years.
This Court relied on the first sentence of MCL
600.2912a(2), which states that a medical-malpractice
plaintiff “has the burden of proving that he or she
suffered an injury that more probably than not was
proximately caused by the negligence of the defendant.”
(Emphasis added.) We held that this provision “ex-
pressly limits recovery to injuries that have already
been suffered and more probably than not were caused
by the defendant’s malpractice.” Wickens, 465 Mich at
60. “Thus, plaintiff can only recover for a present
194 482 MICH 144 [July
OPINION BY MARKMAN, J.

injury, not for a potential future injury.” Id.9 Because

the plaintiff in Wickens survived, she had not suffered a
loss of an opportunity to survive. Id. That is, a person
who survives cannot be said to have suffered a loss of an
opportunity to survive. A person does not suffer a loss of
an opportunity to survive until that person ceases to
survive. Although we held that the surviving plaintiff in
Wickens could not bring a claim for a loss of an
opportunity to survive, this Court did hold that the
plaintiff’s claims that the delayed diagnosis resulted in
the “need for more invasive medical treatments, emo-
tional trauma, and pain and suffering” could proceed
because she had already suffered those injuries. Id. at
61.
In Fulton v William Beaumont Hosp, 253 Mich App
70, 77-78; 655 NW2d 569 (2002), the Court of Appeals
described the issue as
whether the second sentence of [MCL 600.2912a(2)] re-
quires a plaintiff in order to recover for loss of an oppor-
tunity to survive to show only that the initial opportunity
to survive before the alleged malpractice was greater than
fifty percent, as argued by plaintiff, or, instead, that the
opportunity to survive was reduced by greater than fifty
percent because of the alleged malpractice, as argued by
defendants.

The Court held that the language “the opportunity”

was ambiguous, because it could be referring to the
“initial opportunity” or it could be referring to the “loss
of opportunity.” Id. at 80. However, because the Court
believed that “MCL 600.2912a(2) was enacted to codify
and increase the requirements [set forth in Falcon] for
9
This statutory requirement is consistent with the common law. See,
e.g., Henry v Dow Chem Co, 473 Mich 63, 75-76; 701 NW2d 684 (2005)
(holding that “a plaintiff must demonstrate a present physical injury to
person or property” in order to sustain a negligence claim).
2008] STONE V WILLIAMSON 195
OPINION BY MARKMAN, J.

what constitutes a ‘substantial loss of opportunity,’ ” id.

at 82, quoting Falcon, 436 Mich at 470, and because
Falcon “did not focus on the initial opportunity to
survive, but focused on whether the decrease in the
decedent’s opportunity to survive was substantial,”
Fulton, 253 Mich App at 81, the Court chose the latter
interpretation, id. at 83. That is, the Court held that the
“lost opportunity,” not just the initial opportunity, must
“exceed 50 percent.” Id.
I agree with this. The second sentence of MCL
600.2912a(2) reads: “In an action alleging medical mal-
practice, the plaintiff cannot recover for loss of an
opportunity to survive or an opportunity to achieve a
better result unless the opportunity was greater than
50%.” (Emphasis added.) This sentence first refers to
the “loss of an opportunity” and then to “the opportu-
nity.” In my judgment, the language “the opportunity”
clearly refers back to the “loss of an opportunity.”
Therefore, the second sentence can reasonably be read
to mean that the loss of the opportunity must be greater
than 50 percent. In contrast, there is no reasonable
means of reading the language “initial opportunity”
into the sentence. Therefore, I agree with Fulton’s
conclusion that the lost opportunity, not just the initial
opportunity, must be greater than 50 percent.10
10
Contrary to Justice CAVANAGH’s contention, I do not believe I am
reading words into the statute by concluding that MCL 600.2912a(2),
which states that the “lost opportunity” must be greater than 50 percent,
means that the patient’s opportunity to achieve a better result “must
have been decreased by 50 percent.” Ante at 183-184. If an opportunity
has been “lost,” the opportunity has obviously “decreased.” Nor do I
“misquot[e]” the statute, as Justice CAVANAGH asserts. Ante at 175 n 5. I
am cognizant that the statute states: “the plaintiff cannot recover for loss
of an opportunity to survive or an opportunity to achieve a better result
unless the opportunity was greater than 50%.” MCL 600.2912a(2) (em-
phasis added). For the reasons already discussed, I believe that the phrase
“the opportunity” obviously refers back to “loss of an opportunity.” In
196 482 MICH 144 [July
OPINION BY MARKMAN, J.

The Court of Appeals in Fulton next concluded that

because the plaintiff’s premalpractice chance of sur-
vival was 85 percent and her postmalpractice chance of
survival was 60 percent to 65 percent, her “lost oppor-
tunity” was 20 percent to 25 percent and, thus, because
the plaintiff’s “lost opportunity” was not greater than
50 percent, she could not recover under MCL
600.2912a(2). However, Fulton did not offer any expla-
nation as to why it merely subtracted the postmalprac-
tice chance from the premalpractice chance to deter-
mine the “lost opportunity.” This might have been the
correct method of determining the “lost opportunity” if
MCL 600.2912a(2) required that such a loss be “greater
than 50 percentage points.” However, MCL
600.2912a(2) requires that the “lost opportunity” be
“greater than 50%.” There is a significant distinction
between 50 percentage points and 50 percent. As Dr.
Roy Waddell, a board-certified orthopedic surgeon in
Grand Rapids, has explained: “A decrease in survival
rate from 50 percent to 10 percent is a 40-percentage-
point decrease, but it is an 80 percent decrease.” Wad-
dell, A doctor’s view of “opportunity to survive”: Ful-
ton’s assumptions and math are wrong, 86 Mich B J 32,
33 (March 2007) (emphasis in original). Similarly, a
reduction in wages from $5 an hour to $1 an hour is not
a 4 percent reduction in wages; rather, it is an 80
percent reduction in wages. See amicus curiae brief on
behalf of Dr. Roy W. Waddell, pp 12-13.11
contrast, I believe that Justice CAVANAGH is reading words into the statute
by concluding that MCL 600.2912a(2) means that the patient’s “initial”
chance of obtaining a better result must have been greater than 50
percent when the word “initial” cannot be found anywhere in the
statutory provision. That is, while the language “loss of an opportunity”
can be found in the statute, the language “initial opportunity” cannot be
found in the statute.
11
Like the Court of Appeals in Fulton, Justice CAVANAGH offers no
explanation as to why he repeatedly calculates the “lost opportunity” in
2008] STONE V WILLIAMSON 197
OPINION BY MARKMAN, J.

The other problem with Fulton’s method of calcu-

lating the “lost opportunity” is that it does not
differentiate between those patients who would have
survived regardless of whether they received proper
or improper treatment and those patients who
needed the proper treatment in order to survive.12
Such a differentiation is necessary because only those in
the latter group have truly suffered a “lost opportunity”
as a result of the improper treatment. That is, if a
patient would have survived regardless of whether he
received proper or improper treatment, the improper
treatment cannot be said to have caused him to lose an
opportunity to survive. On the other hand, if the patient
would have survived only if he had received the proper
treatment, the improper treatment can be said to have
caused him to lose an opportunity to survive. MCL
600.2912a(2) requires us to determine whether the
patient more likely than not fell into the latter category
rather than the former category, because the statute
only allows a plaintiff to recover for a “loss of an
opportunity” that was “greater than 50%” and that was
“caused by the negligence of the defendant . . . .” Dr.
Waddell’s calculation does just that:
(Premalpractice chance)13 – (Postmalpractice chance)14
___________________________________________________________________
100 – (Postmalpractice chance)

terms of the percentage points lost rather than the actual percentage lost
when MCL 600.2912a(2) clearly states that the “lost opportunity” must
be “greater than 50%,” not greater than 50 percentage points. These
statistical concepts are utterly distinct.
12
Although I repeatedly refer to a lost “opportunity to survive,” I
recognize that MCL 600.2912a(2), unlike Weymers, 454 Mich at 642, also
permits a cause of action for a lost “opportunity to achieve a better
result.”
13
“Premalpractice chance” refers to the patient’s premalpractice
chance of survival or chance to achieve a better result. Waddell, 86 Mich
B J at 33, refers to this as the “treated survival rate.”
198 482 MICH 144 [July
OPINION BY MARKMAN, J.

The quotient resulting from this numerator and de-

nominator is then multiplied by 100 to obtain a percent-
age.15 This number must be “greater than 50%” in order
to satisfy the requirement of the second sentence of
MCL 600.2912a(2). For instance, if the patient’s pre-
14
“Postmalpractice chance” refers to the patient’s postmalpractice
chance of survival or chance to achieve a better result. Waddell, 86 Mich
B J at 33, refers to this as the “untreated survival rate.”
15
Dr. Waddell’s calculation may not be the only conceivable calculation
for making the necessary determination under MCL 600.2912a(2), but, in
my judgment, it constitutes a reasonable calculation that is in accord
with the language of the statute. Moreover, I am cognizant that the
Legislature may not specifically have had in mind the concept later
embodied in Dr. Waddell’s formula when it enacted MCL 600.2912a(2).
However, it is the actual language of a statute to which this Court must
ultimately be faithful. People v Schaefer, 473 Mich 418, 430; 703 NW2d
774 (2005) (“When interpreting a statute, it is the court’s duty to give
effect to the intent of the Legislature as expressed in the actual language
used in the statute.”). The instant case is one in which there is quite
likely some disconnection between what the Legislature may have had in
mind and what it actually enacted. In the end, though, it is the written
law enacted by the Legislature that this Court interprets, not the
Legislature’s unstated intentions or the presumed thought processes of
individual members of the Legislature.
Justice CAVANAGH’s amazement that I can “discern the Legislature’s
intent from the statutory language [of MCL 600.2912a(2)],” ante at 183
n 11, is quite remarkable, given that he purports to do exactly the same
thing, albeit reaching a different conclusion. Indeed, seeking to discern
intent from statutory language is generally what judges do when inter-
preting the law. He is also determined to make light of the fact that the
Legislature could not have had “in mind” when crafting MCL
600.2912a(2) “the concept that was later embodied in Waddell’s for-
mula . . . .” Ante at 183 n 11. Although I recognize that the Legislature
may not “specifically [have had] in mind” the concept underlying Dr.
Waddell’s formula, in essentially comparing premalpractice and postmal-
practice opportunities in terms of percentages rather than percentage
points, this formula is an altogether logical and commonsensical way of
looking at “loss of opportunity” claims. Nonetheless, the only conclusion
I reach in this opinion is that, whatever was in the recesses of Senator A’s
or Representative B’s minds in the Legislature, they and their colleagues
crafted a statute that is consistent with Dr. Waddell’s formula and
inconsistent with Justice CAVANAGH’s interpretation.
2008] STONE V WILLIAMSON 199
OPINION BY MARKMAN, J.

malpractice chance to achieve a better result was 80

percent and, as a result of the defendant’s malpractice,
the patient’s postmalpractice chance is reduced to 20
percent, the patient has suffered a 75 percent loss of an
opportunity to survive.16
What the Waddell formula essentially does is test
the sufficiency of the expert testimony, which is
typically presented in the form of two statistics: the
likelihood that a patient would have had a good
outcome with proper treatment (the “treated survival
rate”) and the likelihood that a patient would have
had a good outcome with negligent treatment (the
“untreated survival rate”). The Waddell formula al-
lows a court analyzing this data to determine whether
the plaintiff, when the patient has experienced a bad
outcome, has created a question of material fact
concerning whether proper treatment more likely
than not would have made a difference. The formula
does this by identifying the universe of patients who
would have had a bad outcome (the denominator) and
the subset of those patients who could have been
favorably treated (the numerator).
It is easiest to start with the formula’s denominator.
This denominator consists of the universe of all patients
who would have had a bad outcome, for whatever
reason. This group includes two subsets of patients:
those who would have had a bad outcome because they
received negligent treatment, and those who would
have had a bad outcome despite receiving proper treat-
ment. The formula identifies this group by subtracting
from 100 the percentage of patients who would have
had a good outcome even without proper treatment; in
other words, it subtracts the “untreated survival rate”
16
80 – 20
___________
x 100 = 75%
100 – 20
200 482 MICH 144 [July
OPINION BY MARKMAN, J.

from 100. In this way, a court can take the expert’s

statistics and identify those patients who were not
treated properly and who experienced a bad outcome. A
patient who is the subject of a medical-malpractice
action is a member of this group. But we cannot
determine whether the patient is a member of this
group because he or she was denied the proper treat-
ment or because he or she would have suffered a bad
outcome even with proper treatment.
One more calculation must then be made in order to
answer the dispositive question posed by the statute:
whether it is more likely than not that the patient
would have benefited from proper treatment or, put
another way, whether the “opportunity to survive or . . .
to achieve a better result” was “greater than 50%.”
MCL 600.2912a(2). A court has to determine what
percentage of those patients with a bad outcome (those
patients in the denominator) would have benefited from
treatment. This brings us to the Waddell formula’s
numerator. The numerator consists of those patients
who would have had a bad outcome only if they had
been negligently treated. It is calculated by subtracting
the “untreated survival rate” from the “treated survival
rate,” thus identifying those patients who required
treatment to avoid a bad outcome.
Once the numerator and denominator have been
calculated, comparison of these two numbers by their
quotient allows a court to reasonably determine
whether improper treatment more likely than not made
a difference in the patient’s outcome. If the number of
patients who would have had a bad outcome only if they
had been negligently treated (the numerator) comprises
more than half of the number of patients who would
have had a bad outcome overall (the denominator), then
the plaintiff has established that proper treatment
2008] STONE V WILLIAMSON 201
OPINION BY MARKMAN, J.

more likely than not would have made a difference. In

other words, when this has been shown, the plaintiff
has created a question of material fact concerning
whether the “opportunity”— the benefit that would have
been realized by a group of patients from the treatment
that was not given to this specific patient—was greater
than 50 percent. Such a plaintiff has presented adequate
expert testimony to establish a “lost opportunity” cause of
action within the meaning of the statute.
As Dr. Waddell has explained:
[T]he intent of the law is to disallow damages unless it
can be shown that proper treatment creates a better than
even (“greater than 50%”) chance of survival of the patients
who would have died without treatment. In other words, if
appropriate treatment cannot save at least half of the
patients who otherwise would have died, then you do not
have sufficient evidence to show that the negligence made
the difference in the adverse outcome (death). Conversely,
if good treatment can save more than half of the patients
who otherwise would have died, then you have adequate
evidence that the poor treatment or negligence was likely
to blame for the bad outcome. This is exactly what this
definition of opportunity measures. [Waddell, 86 Mich B J
at 33 (emphasis in original).]

MCL 600.2912a(2) only allows a plaintiff to recover for

a “loss of an opportunity” that was “greater than 50%”
and that was “caused by the negligence of the defen-
dant . . . .” Use of Dr. Waddell’s formula, which gener-
ates the actual percentage lost rather than the number
of percentage points lost, and excludes those who would
have achieved a good result regardless of the malprac-
tice, best ensures, in my judgment, that these statutory
requirements are satisfied. That is, this calculation
would impose liability, in accordance with MCL
600.2912a(2), in those instances in which the medical
202 482 MICH 144 [July
OPINION BY MARKMAN, J.

care received more likely than not affected whether the

patient survived.17

II. APPLICATION

Plaintiff’s premalpractice chance to obtain a better

result was 99 percent, and his postmalpractice chance
of obtaining a better result was 95 percent. Pursuant to
the Waddell calculation, plaintiff lost an 80 percent
opportunity to achieve a better result:
99 – 95
___________
x 100=80%
100 – 95

Therefore, plaintiff’s “lost opportunity” was “greater

than 50%.” Accordingly, plaintiff satisfied the require-
ments of MCL 600.2912(a)(2). Therefore, I would affirm
the result of the Court of Appeals judgment.18
17
I acknowledge that the Waddell approach appears to lead to anoma-
lous results in those situations in which there is only a slight loss of an
opportunity. For example, as defendants point out, if the premalprac-
tice chance of survival was 99.99 percent and the postmalpractice
chance was 99.97 percent, the “lost opportunity” would be 66.67
percent. Possibly, this would not constitute a practical problem,
because experts are not generally able to predict opportunities with
this degree of precision. See, e.g., Falcon, 436 Mich at 449 n 5 (LEVIN,
J.) (“ ‘Human nature being what it is, and the difference between
scientific and legal tests for “probability” often creating confusion, for
every expert witness who evaluates the lost chance at 49% there is
another who estimates it at closer to 51%.’ ”) (citation omitted).
Nonetheless, if the Legislature wants to avoid the possibility of such
an anomalous result, it could require, for example, that there be a
threshold percentage-point loss as a result of the defendant’s malprac-
tice, say 5 or 10 percentage points, in addition to the requirement of
the loss being “greater than 50%.” Finally, I would emphasize that I
am neither advocating for nor against the Waddell calculation as a
matter of fairness or sound public policy; I simply believe that it is in
accordance with the Legislature’s directions in MCL 600.2912a(2).
18
Although, for the reasons discussed above, I agree with the result
reached by the Court of Appeals, I respectfully disagree with its calcula-
tion of the “lost opportunity.” In addition, I disagree with its conclusion
2008] STONE V WILLIAMSON 203
OPINION BY MARKMAN, J.
III. RESPONSE TO CHIEF JUSTICE TAYLOR

Chief Justice TAYLOR’s opinion concludes that the

second sentence of MCL 600.2912a(2) is “substantially
incomprehensible,” and, therefore, “unenforceable.”
Ante at 147, 161, 164.19 Although he does not expressly
rely on the “void for vagueness” doctrine, he is appar-
ently doing just that, because I am unaware of any
other doctrine that would allow a court to conclude that
a statutory provision is “unenforceable” on the basis
that it is “substantially incomprehensible.” The enact-
ments of the Legislature are, as a rule, enforceable in
the courts of this state absent a violation of the Michi-
gan or the United States constitutions.
The “void for vagueness” doctrine derives from the
Due Process Clause. “ ‘It is a basic principle of due
process that an enactment is void for vagueness if its
that all the risks to which the patient was exposed should be considered
when determining the patient’s “lost opportunity.” Instead, I believe that
only those risks associated with the injuries that the patient actually
suffered should be considered, since the whole point of a negligence
action is to establish that the defendant’s negligence caused a specific
injury. That the negligence could possibly have caused other injuries is
just not relevant. Further, only considering the risks associated with the
injuries actually suffered is consistent with our decision in Wickens, 465
Mich at 54, 61, in which we held that “a living person may not recover for
loss of an opportunity to survive,” because “a loss of opportunity to
survive claim only encompasses injuries already suffered . . . .” There-
fore, the risk of death cannot be considered when the plaintiff did not
actually die.
Moreover, as discussed above, plaintiff’s recovery should have been
limited to 80 percent of the damages calculated, given that plaintiff
suffered the loss of an 80 percent opportunity, not a 100 percent
opportunity. However, given that it does not appear that defendants ever
raised this issue, I would not remand to the trial court on this basis.
19
In similar fashion, his opinion states that MCL 600.2912a(2) “cannot
be interpreted as written,” that it “create[s] a paradox,” and that the
second sentence of the statute “impossibly conflicts” with the first
sentence. Ante at 157, 158, 160-161.
204 482 MICH 144 [July
OPINION BY MARKMAN, J.

prohibitions are not clearly defined.’ ” People v Howell,

396 Mich 16, 20 n 4; 238 NW2d 148 (1976), quoting
Grayned v City of Rockford, 408 US 104, 108; 92 S Ct
2294; 33 L Ed 2d 222 (1972). “The void-for-vagueness
doctrine reflects the principle that ‘a statute which
either forbids or requires the doing of an act in terms so
vague that [persons] of common intelligence must nec-
essarily guess at its meaning . . . violates the first essen-
tial of due process of law.’ ” Roberts v United States
Jaycees, 468 US 609, 629; 104 S Ct 3244; 82 L Ed 2d 462
(1984), quoting Connally v Gen Constr Co, 269 US 385,
391; 46 S Ct 126; 70 L Ed 2d 322 (1926). However,
“this prohibition against excessive vagueness does not
invalidate every statute which a reviewing court believes
could have been drafted with greater precision. Many
statutes will have some inherent vagueness, for ‘[in] most
English words and phrases there lurk uncertainties.’ Even
trained lawyers may find it necessary to consult legal
dictionaries, treatises, and judicial opinions before they
may say with any certainty what some statutes may compel
or forbid. All the Due Process Clause requires is that the
law give sufficient warning that men may conduct them-
selves so as to avoid that which is forbidden.” [People v
Petrella, 424 Mich 221, 255; 380 NW2d 11 (1985) (citations
omitted).]

The “void for vagueness” doctrine serves three re-

lated interests:
“First, because we assume that man is free to steer
between lawful and unlawful conduct, we insist that laws
give the person of ordinary intelligence a reasonable oppor-
tunity to know what is prohibited, so that he may act
accordingly. Vague laws may trap the innocent by not
providing fair warning. Second, if arbitrary and discrimi-
natory enforcement is to be prevented, laws must provide
explicit standards for those who apply them. A vague law
impermissibly delegates basic policy matters to policemen,
judges, and juries for resolution on an ad hoc and subjective
2008] STONE V WILLIAMSON 205
OPINION BY MARKMAN, J.

basis, with the attendant dangers of arbitrary and discrimi-

natory application. Third, but related, where a vague
statute ‘abut[s] upon sensitive areas of basic First Amend-
ment freedoms,’ it ‘operates to inhibit the exercise of
[those] freedoms.’ ” [Howell, 396 Mich at 20 n 4, quoting
Grayned, 408 US at 108-109.]

I would add that the “void for vagueness” doctrine also

ensures that the “judicial power” of this state, see Const
1963, art 6, § 1, is not inappropriately exercised by
“interpreting” a statute whose language is simply not
susceptible to reasonable interpretation; an attempt to
give meaning to such a statute will inevitably devolve
into a legislative or policy-making determination on the
part of a branch of government whose responsibilities
do not entail such determinations.
The “void for vagueness” doctrine has generally been
held applicable only to criminal statutes or to laws
infringing First Amendment freedoms. Indeed, to the
best of my knowledge, this Court has never struck down
a civil statute that does not implicate First Amendment
freedoms under the “void for vagueness” doctrine.
Chief Justice TAYLOR’s opinion cites no Michigan or
federal caselaw to the contrary. Nor can any support for
his conclusion be found in any of the parties’ briefs or
the numerous amicus curiae briefs filed in this Court.
Indeed, not one of those briefs even suggests that the
“lost opportunity” provision in MCL 600.2912a(2) is
unconstitutionally vague.
This Court has held that a
statute may be challenged for vagueness on the grounds
that it
—is overbroad, impinging on First Amendment free-
doms, or
—does not provide fair notice of the conduct proscribed,
or
206 482 MICH 144 [July
OPINION BY MARKMAN, J.

—is so indefinite that it confers unstructured and

unlimited discretion on the trier of fact to determine
whether an offense has been committed. [Woll v Attorney
General, 409 Mich 500, 533; 297 NW2d 578 (1980).]

Chief Justice TAYLOR’s opinion does not indicate on

which of these grounds it finds the “lost opportunity”
provision to be unconstitutionally vague. The first
ground certainly is not pertinent, because the “lost
opportunity” provision does not impinge on any First
Amendment freedoms. Neither of the other two
grounds seems to be pertinent either, as both seem to
pertain to criminal offenses, given that the second
ground refers to “the conduct proscribed” and the third
ground refers to “whether an offense has been commit-
ted.” The “lost opportunity” provision neither “pro-
scribe[s]” conduct nor confers “unlimited discretion on
the trier of fact to determine whether an offense has
been committed.” Therefore, there does not seem to be
any basis under our current case-law to strike down the
“lost opportunity” provision as being unconstitution-
ally vague. Chief Justice TAYLOR should, at the least,
explain and justify his extension of this doctrine, which
enables this Court to strike down an enactment of the
Legislature.
In A B Small Co v American Sugar Refining Co, 267
US 233; 45 S Ct 295; 69 L Ed 589 (1925), the United
States Supreme Court held that a buyer could not elude
a contract to purchase refined sugar on the basis that
the seller was charging an “unjust” or “unreasonable”
price in violation of a federal statute, because the
federal statute was unconstitutionally vague. It is note-
worthy that although American Sugar involved a civil
breach-of-contract action, the statutory language in-
validated was a criminal statute. However, even putting
that aside, the Court held that the provision was
unconstitutionally vague because it required people to
2008] STONE V WILLIAMSON 207
OPINION BY MARKMAN, J.

“conform to a rule or standard which was so vague and

indefinite that no one could know what it was.” Id. at
238-239. That is, it was so “indefinite as to be unintel-
ligible . . . .” Id. at 240. In order for something to be
“unintelligible,” it must be “not capable of being under-
stood.” Random House Webster’s College Dictionary
(1991). As discussed throughout this opinion, I simply
do not believe that the provision at issue is incapable of
being understood. MCL 600.2912a(2) may conceivably
be unwise or imprudent, it could conceivably have been
drafted with greater clarity and precision, and its inter-
pretation may require an unusual investment of judicial
effort, but it is not incapable of being understood.
In Exxon Corp v Busbee, 644 F2d 1030, 1031 (CA 5,
1981), the United States Court of Appeals for the Fifth
Circuit held that a state commercial regulatory statute
was not unconstitutionally vague, because it was not
“ ‘impossible to divine.’ ” (Citation omitted.) That court
explained that “[b]ecause the statute is not concerned
with either the first amendment or the definition of
criminal conduct, . . . we must be lenient in evaluating
its constitutionality.” Id. at 1033. It further explained
that “uncertainty in this statute is not enough for it to
be unconstitutionally vague; rather, it must be substan-
tially incomprehensible.” Id. (emphasis added).20 Fi-
nally, the court indicated that “the parties themselves
have offered possible interpretations” of the provision,
and then concluded that “[t]hese attempts at statutory
construction illustrate that [the provision] is, while
most assuredly not a ‘model of clarity,’ at least ame-
nable to some sensible construction.” Id. at 1034 (cita-
20
Although Chief Justice TAYLOR does not expressly state that he
believes MCL 600.2912a(2) to be unconstitutionally vague, he uses the
identical language—“substantially incomprehensible”—that the Exxon
Court used when addressing whether a statutory provision was uncon-
stitutionally vague.
208 482 MICH 144 [July
OPINION BY MARKMAN, J.

tion omitted). Because I conclude that the “lost oppor-

tunity” provision at issue in the instant case is likewise
“amenable to some sensible construction,” I strongly
disagree with Chief Justice TAYLOR’s conclusion that
this provision should be struck down on the grounds of
vagueness.
Furthermore, I must emphasize the well-established
rule that “this Court will presume that all legislation is
constitutional and will attempt to construe legislation
so as to preserve its constitutionality[.]” People v Neu-
mayer, 405 Mich 341, 362; 275 NW2d 230 (1979).
No rule of construction is better settled in this country,
both upon principle and authority, than that the acts of a
state legislature are to be presumed constitutional until
the contrary is shown; and it is only when they manifestly
infringe some provision of the constitution that they can be
declared void for that reason. In cases of doubt, every
possible presumption, not clearly inconsistent with the
language and the subject matter, is to be made in favor of
the constitutionality of the act. [Sears v Cottrell, 5 Mich
251, 259 (1858) (emphasis in original).]

“We are duty bound under the Michigan Constitution to

preserve the laws of this state . . . .” People v Bricker,
389 Mich 524, 528; 208 NW2d 172 (1973). Therefore,
“courts [must] construe the language of a statute so as
to give it effect rather than to nullify it.” Petrella, 424
Mich at 241. “Every reasonable presumption or intend-
ment must be indulged in favor of the validity of an act,
and it is only when invalidity appears so clearly as to
leave no room for reasonable doubt that it violates some
provision of the Constitution that a court will refuse to
sustain its validity.” Cady v Detroit, 289 Mich 499, 505;
286 NW 805 (1939). “We exercise the power to declare a
law unconstitutional with extreme caution . . . .” Phil-
lips v Mirac, Inc, 470 Mich 415, 422; 685 NW2d 174
(2004). Therefore, “every statute passed by the Legis-
2008] STONE V WILLIAMSON 209
OPINION BY MARKMAN, J.

lature is presumed to be constitutional, and a reviewing

court should find an act invalid only when there is no
reasonable interpretation which will sustain it.” State
Treasurer v Wilson, 423 Mich 138, 146; 377 NW2d 703
(1985). “Indeed, although the presumption is not con-
clusive, it is powerful enough to permit even a strained
construction when necessary to save constitutionality.”
Williams v Hofley Mfg Co, 430 Mich 603, 613; 424
NW2d 278 (1998) (citations omitted); see also Osborn v
Charlevoix Circuit Judge, 114 Mich 655, 660; 72 NW
982 (1897) (“There is always a presumption in favor of
constitutionality, and this presumption justifies a con-
struction which is rather against the natural interpre-
tation of the language used, if necessary to sustain the
law.”).
“[D]eclaring a statute unconstitutional is ‘ “the grav-
est and most delicate duty that this Court is called on to
perform” ’ . . . .” People v Lynch, 410 Mich 343, 352; 301
NW2d 796 (1981) (citation omitted). Although I do not
necessarily agree that we are obligated to adopt inter-
pretations that are “strained,” Williams, 430 Mich at
613, or “against the natural . . . language,” Osborn, 114
Mich at 660, I do not believe that the interpretation of
MCL 600.2912a(2) set forth in this opinion comes
anywhere close to such boundaries. I simply do not
think that Chief Justice TAYLOR’s opinion sufficiently
perseveres to avoid the declaration of unconstitutional-
ity that he apparently reaches.21
21
It is also noteworthy that this Court has repeatedly made it clear that
“ambiguity is a finding of last resort,” because a finding of ambiguity

enables an appellate judge to bypass traditional approaches to

interpretation and either substitute presumptive “ ‘rule[s] of
policy,’ ” see Klapp v United Ins, 468 Mich 459, 474; 663 NW2d 447
(2003), quoting 5 Corbin, Contracts (rev ed, 1998), § 24.27, p 306,
or else to engage in a largely subjective and perambulatory reading
210 482 MICH 144 [July
OPINION BY MARKMAN, J.

Chief Justice TAYLOR’s opinion concludes that MCL

600.2912a(2) is unenforceable because the two sen-
tences in that provision are inconsistent with one
another. Once again, I disagree. Chief Justice TAYLOR
states that under the first sentence of MCL
600.2912a(2), a plaintiff must prove that the defen-
dant’s malpractice caused the injury, while under the
second sentence, a plaintiff cannot prove that the
defendant’s malpractice caused the injury. What he fails
to recognize is that in a “lost opportunity” action, the
injury is not the death or the physical harm, but the
“lost opportunity” to avoid the death or physical
harm,22 and that a “lost opportunity” plaintiff does have
of “legislative history.” [Lansing Mayor v Pub Service Comm, 470
Mich 154, 164-165 and n 6; 680 NW2d 840 (2004).]

Yet, in this case, Chief Justice TAYLOR not only concludes that the statute
is ambiguous, but essentially concludes that it is unconstitutionally
vague and, therefore, null and void.
22
Chief Justice TAYLOR’s opinion contends that pursuant to Wickens,
465 Mich at 60-61, the injury in a “lost opportunity” action must be the
death or the physical harm, not the “lost opportunity” to avoid the death
or the physical harm. I disagree. In Wickens, this Court simply held that
a surviving plaintiff has not lost an opportunity to survive. That is, a
surviving plaintiff cannot recover damages for the possibility that he or
she may die sometime in the future. There must be a present injury.
Therefore, in a “lost opportunity to survive” action, the patient must
have failed to survive; and, in a “lost opportunity to achieve a better
result” action, the patient must have failed to achieve the better result.
Those plaintiffs who survived, and those who achieved the better result,
have simply suffered no “lost opportunity” at all, and thus have no
grounds on which to seek a recovery. However, those patients who did not
survive, and those patients who did not achieve a better result, do have
a present injury, even though the plaintiffs in those cases cannot prove
that the defendant’s malpractice caused the death or the physical harm,
and these plaintiffs can recover as long as they can prove that the
defendant’s malpractice caused the patients to lose an opportunity to
survive or achieve a better result and that the “lost opportunity” was
greater than 50 percent. Contrary to Chief Justice TAYLOR’s contention,
2008] STONE V WILLIAMSON 211
OPINION BY MARKMAN, J.

to prove that the defendant’s malpractice more prob-

ably than not caused this injury. As we explained in
Falcon, 436 Mich at 461 (LEVIN, J.): “We thus see the
injury resulting from medical malpractice as not only, or
necessarily, physical harm, but also as including the loss
of opportunity of avoiding physical harm.” However,
even “[u]nder this approach, the plaintiff must estab-
lish more-probable-than-not causation.” Id. at 462.
That is, the plaintiff “must prove, more probably than
not, that the defendant reduced the opportunity of
avoiding harm.” Id. Therefore, in both a traditional
medical-malpractice action, in which the alleged injury
is the death or the physical harm itself, and in a “lost
opportunity” action, in which the alleged injury is the
“lost opportunity” to avoid the death or the physical
harm, the plaintiff must prove that it is more probable
than not that the defendant’s malpractice caused the
injury.
Contrary to Chief Justice TAYLOR’s contention, then,
the two sentences in MCL 600.2912a(2) are not incon-
sistent. Pursuant to the first sentence, all medical-
malpractice plaintiffs must prove that the defendant’s
malpractice more probably than not caused the alleged
injury. Pursuant to the second sentence, a “lost oppor-
tunity” plaintiff must prove that the “lost opportunity”
was greater than 50 percent. Therefore, in order to
satisfy both sentences, a “lost opportunity” plaintiff
must prove that the defendant’s malpractice more
probably than not caused the “lost opportunity” and
that the “lost opportunity” was greater than 50 percent.
There is nothing inconsistent about these sentences.
Falcon, 436 Mich at 470 (LEVIN, J.), did not allow for the recovery of the
same kind of injury that Wickens precluded. In Falcon, unlike in Wickens,
the patient did not survive and thus did suffer a “lost opportunity to
survive.”
212 482 MICH 144 [July
OPINION BY MARKMAN, J.

However, there is something inconsistent about

Chief Justice TAYLOR’s opinion. He concludes that the
second sentence of MCL 600.2912a(2) is so “substan-
tially incomprehensible” that it is “unenforceable.”
Ante at 147, 161, 164. Yet, despite this conclusion, he
repeatedly asserts that when the Legislature enacted
the second sentence of MCL 600.2912a(2) it “in-
tended” certain things. See, e.g., ante at 158, where
the he states that the Legislature “intended” the
“lost opportunity” provision to apply to “situation[s]
in which an injury might have occurred anyway, but
in which the defendant’s act or omission hastened or
worsened it in such a way that the plaintiff suffered
more severe physical injury than he or she would
have had the negligence not occurred,” and ante at
162, where he states that “the Legislature intended
to retain the traditional proximate-cause require-
ment in effect before Falcon . . . .”23 If this provision is
so vague—indeed of a constitutional dimension, as
Chief Justice TAYLOR’s opinion essentially concludes—
how can he be so certain what the Legislature intended
by it? Either we know what the Legislature intended by
this provision or we do not; Chief Justice TAYLOR cannot
have it both ways.

IV. RESPONSE TO JUSTICE CAVANAGH

In his opinion, Justice CAVANAGH concludes that the

second sentence of MCL 600.2912a(2) requires only
that the patient’s premalpractice chance to obtain a
better result be greater than 50 percent. As explained
23
Chief Justice TAYLOR’s opinion contends that the Legislature intended to
abolish “lost opportunity” claims. I agree with Justice CAVANAGH’s opinion
that if that was the Legislature’s intent, it would have simply prohibited
plaintiffs from bringing “lost opportunity” claims, rather than merely
adding a provision that imposes an additional requirement on “lost oppor-
tunity” plaintiffs.
2008] STONE V WILLIAMSON 213
OPINION BY MARKMAN, J.

earlier, I agree with him that the phrase “the opportu-

nity” in MCL 600.2912a(2) refers back to the language
“loss of an opportunity.”24 However, I disagree with his
conclusion that “loss of an opportunity” refers to the
patient’s premalpractice chance to obtain a better re-
sult. Instead, I believe that “loss of an opportunity”
clearly refers to the opportunity that the patient actu-
ally lost as a consequence of the defendant’s malprac-
tice. MCL 600.2912a(2) states that “the plaintiff cannot
recover for loss of an opportunity . . . unless the oppor-
tunity was greater than 50%.” (Emphasis added.) That
is, the opportunity that MCL 600.2912a(2) refers to is
the “lost opportunity” for which the plaintiff may
“recover.” The plaintiff cannot necessarily recover for
the entire premalpractice chance to obtain a better
result; instead, he or she can only recover for the
portion of the premalpractice chance that was actually
lost. Justice CAVANAGH’s opinion states that “the oppor-
tunity alleged to have been lost must be the premal-
practice opportunity.” Ante at 174 (emphasis added).
This is plainly incorrect. Instead, the chance alleged to
have been lost may be the entire premalpractice chance;
however, it may also be only a portion of the premal-
practice chance, as in the instant case in which plain-
tiff’s opportunity to obtain a better result was reduced
from 99 percent to 95 percent. Justice CAVANAGH seems
to recognize this, because he states that “the premal-
practice opportunity . . . is the opportunity that is lost
in some measure . . . .” Ante at 174 (emphasis added). In
fact, at one point, he seems to reach the same conclu-
24
At one point, Justice CAVANAGH asserts that the phrase “the oppor-
tunity” refers back to the language “loss of an opportunity” and, thus,
that they “are to be construed identically,” ante at 174; however, at
another point, he asserts that my proposed meaning of “the opportunity”
would inappropriately read the words “loss of” into the provision, ante at
174-175. These assertions are simply incompatible.
214 482 MICH 144 [July
OPINION BY MARKMAN, J.

sion that I do—“a plaintiff cannot recover for the loss of

an opportunity unless the opportunity—the premal-
practice opportunity that was allegedly lost in some
measure—was greater than 50 percent.” Ante at 174
(emphasis in original). That is, the portion of the
premalpractice opportunity that was lost must be
greater than 50 percent. However, at other points, he
states inconsistently that the word “opportunity” refers
only to the premalpractice opportunity. Ante at 174.
Justice CAVANAGH’s opinion also contends that “MCL
600.2912a(2) cannot limit recovery for the loss of an
opportunity to cases in which the loss was greater than
50 percent, because any plaintiff who satisfied that
condition would have a traditional medical-malpractice
claim for the death or physical harm itself.” Ante at
175-176. Justice CAVANAGH similarly contends that Dr.
Waddell’s “formula would preclude true lost-
opportunity plaintiffs from bringing claims and provide
medical-malpractice claimants with lost-opportunity
causes of action for which they have no need.” Ante at
182-183. These contentions, I believe, are incorrect. For
example, in the instant case, although, pursuant to Dr.
Waddell’s formula, plaintiff suffered the loss of an 80
percent opportunity to achieve a better result, i.e., no
amputation, plaintiff cannot prove that defendants’
malpractice caused the amputation, as he would be
required to do in a traditional medical-malpractice
action. He cannot prove that defendants’ malpractice
caused the amputation because there was at least a 1
percent chance that plaintiff would have suffered an
amputation even with proper treatment. However,
plaintiff did prove that defendants’ malpractice caused
him to suffer the loss of an 80 percent opportunity to
achieve a better result, i.e., no amputation. Therefore,
contrary to Justice CAVANAGH’s contention, it is possible
to have a situation in which the “lost opportunity”
2008] STONE V WILLIAMSON 215
OPINION BY MARKMAN, J.

exceeds 50 percent, but the plaintiff cannot satisfy the

requirements of a traditional medical-malpractice ac-
tion, and Dr. Waddell’s formula identifies those plain-
tiffs who cannot satisfy the requirements of a tradi-
tional medical-malpractice action but who can satisfy
the “lost opportunity” requirements of MCL
600.2912a(2).25
25
Although Justice CAVANAGH states that he disagrees with my distinc-
tion between a “lost opportunity” action and a traditional medical-
malpractice action, at other points in his analysis he seems to agree with
it. For instance, he states that a plaintiff would not be able to recover for
the patient’s death in a traditional medical-malpractice action if the
patient only had a 40 percent premalpractice chance of survival, because
the plaintiff “would not be able to prove that the physician’s malpractice
more probably than not . . . caused the patient’s death” since “[t]here
was a 60 percent chance that the patient would have died regardless of
the malpractice, as a result of the preexisting condition. But the plaintiff
might be able to show that the physician’s malpractice more probably
than not caused the patient to lose up to a 40 percent chance of avoiding
death,” i.e., recover for the “lost opportunity” in a “lost opportunity”
action. Ante at 171-172. This is precisely the distinction that I make
between “lost opportunity” actions and traditional medical-malpractice
actions.
Yet at other points Justice CAVANAGH seems to misunderstand my
distinction between “lost opportunity” actions and traditional medical-
malpractice actions. For instance, he states that my distinction must be
wrong because we have long held that the medical malpractice does not
have to be the sole cause of the injury in order for a medical-malpractice
plaintiff to prevail. Ante at 176 n 6, 179-182. However, my distinction is
not inconsistent with this holding. To the contrary, I agree with Justice
CAVANAGH that the medical malpractice does not have to be the sole cause
of the injury. For example, if Bill broke Tom’s leg and Dr. Jones
committed medical malpractice in treating Tom’s broken leg, resulting in
permanent damage to Tom’s leg, Tom may still be able to prevail in a
traditional medical-malpractice action for the permanent damage to his
leg. He would be able to prevail in such an action if proper treatment
would not have resulted in permanent damage. However, if there was a
chance that Tom’s leg would have been permanently damaged even with
proper treatment, then Tom would only be able to recover for his “lost
opportunity” of avoiding the permanent damage. Contrary to Justice
CAVANAGH’s contentions, my analysis would not “preclude plaintiffs with
216 482 MICH 144 [July
OPINION BY MARKMAN, J.

preexisting conditions that might have contributed slightly to their

injuries from bringing medical-malpractice claims”; it would not “pre-
clude medical-malpractice claims from arising in situations in which
proper medical treatment does not always succeed”; and it would not
“preclud[e] a medical-malpractice claim unless administering proper
treatment would never produce permanent damage.” Ante at 179, 182 n
9 (emphasis in original). Furthermore, I agree with Justice CAVANAGH that
the “fact that a plaintiff has a preexisting condition does not, by itself,
cause a claim to be a lost-opportunity claim rather than a [traditional]
medical-malpractice claim.” Ante at 181. As explained above, even though
Tom had a pre-existing condition, i.e., a broken leg, Tom would still have
a traditional medical-malpractice action if proper treatment would not
have resulted in permanent damage.
Finally, Justice CAVANAGH concludes that the instant case is not a “lost
opportunity” cause of action. Ante at 178. However, this seems to be
inconsistent with his own definition of a “lost opportunity” cause of
action. He defines a “lost opportunity” action as one in which the “lost
opportunity” was not greater than 50 percent. Ante at 171-172 and n 2,
176-177. He calculates this “lost opportunity” by subtracting the post-
malpractice chance of obtaining a better result from the premalpractice
chance. Ante at 171-172 and n 2, 176-177. In the instant case, the
premalpractice chance was 99 percent and the postmalpractice chance
was 95 percent. Therefore, pursuant to Justice CAVANAGH’s own formula,
plaintiff’s “lost opportunity” was 4 percent. Given that plaintiff’s “lost
opportunity” was less than 50 percent, I do not understand why he
concludes that this is not a “lost opportunity” cause of action. Further, I
do not understand why he believes that this plaintiff should prevail, given
his conclusion that MCL 600.2912a(2) simply codified Falcon and added
the requirement that the premalpractice chance must be greater than 50
percent. As Justice CAVANAGH explains, Falcon held that the “lost oppor-
tunity” must be “substantial.” Ante at 168, quoting Falcon, 436 Mich at
470 n 43 (LEVIN, J.). Does Justice CAVANAGH believe that a 4 percent “lost
opportunity” is “substantial”? Justice CAVANAGH, ante at 178 n 7, attempts
to avoid this dilemma by making the same mistake as the Court of
Appeals, i.e., considering all potential risks rather than only those risks
associated with the injury actually suffered by plaintiff. See n 18 supra.
For example, given that plaintiff did not die, it is inappropriate to take
into consideration, as Justice CAVANAGH does, the fact that plaintiff’s risk
of death increased as a result of the medical malpractice. Id. Contrary to
Justice CAVANAGH’s contention, not considering plaintiff’s increased risk
of death does not “penalize[] [plaintiff] for managing to survive,” ante at
178 n 7; it simply does not calculate his entitlement to a recovery in
malpractice on the basis of a death that he never suffered. I cannot
2008] STONE V WILLIAMSON 217
OPINION BY MARKMAN, J.

In order to satisfy traditional medical-malpractice

action requirements, there must be no question that the
proper treatment would have resulted in a good out-
come (at least with regard to the specific injury suffered
by the patient), because if there is any chance that a
patient who received proper treatment might neverthe-
less have suffered the specific bad outcome ultimately
suffered by the patient, it cannot be proved that the
improper treatment caused the bad outcome. If there is
any chance that the proper treatment could have re-
sulted in the bad outcome, the chances of a good
outcome with proper treatment and the chances of a
good outcome with improper treatment must be com-
pared. That is, under those circumstances, although the
plaintiff cannot prove that the defendant’s malpractice
caused the bad outcome because the bad outcome might
have occurred even with proper treatment, the plaintiff
may be able to prove that the defendant’s malpractice
increased the patient’s chances of obtaining a bad
outcome and, thus, caused him or her to suffer a “lost
opportunity” to achieve a better result. This is the only
coherent concept of a “lost opportunity” cause of action
under MCL 600.2912a(2).26
comprehend why Justice CAVANAGH thinks that considering an increased
risk of death is “relevant to the jury’s determination of whether malprac-
tice [has] caused a plaintiff to suffer a particular harm,” ante at 178 n 7
(emphasis added), when the “particular harm” actually suffered was
other than death.
26
Given that (a) Chief Justice TAYLOR’s analysis would render the “lost
opportunity” provision null and void, (b) Justice CAVANAGH’s analysis is
inconsistent and incompatible with the language of the statute, and (c)
the analysis in this opinion has no votes other than my own, I urge the
Legislature to revisit MCL 600.2912a(2) at its earliest opportunity. If the
Legislature wishes to maintain the “lost opportunity” doctrine, it should
enact a provision that indicates such an intention, and that sets forth in
as clear a manner as possible the requirements a “lost opportunity”
plaintiff must satisfy. The fractionalization of this Court in the instant
218 482 MICH 144 [July
OPINION BY MARKMAN, J.
V. CONCLUSION

A “lost opportunity” action is one in which it is

possible that the bad outcome would have occurred
even if the patient had received proper treatment. On
the other hand, if there is no question that the proper
treatment would have resulted in a good outcome and
the patient has suffered a bad outcome, the plaintiff
possesses a traditional medical-malpractice action. In
order for a traditional medical-malpractice plaintiff
to prevail, the plaintiff must prove that the bad
outcome was more probably than not caused by the
defendant’s malpractice. In order for a “lost opportu-
nity” plaintiff to prevail, the plaintiff must prove that
the “lost opportunity” to achieve a better result was
more probably than not caused by the defendant’s
malpractice and that the “lost opportunity” was
greater than 50 percent. In order to determine
whether the “lost opportunity” was greater than 50
percent, the postmalpractice chance of obtaining a
better result must be subtracted from the premal-
practice chance; the postmalpractice chance must
then be subtracted from 100; the former number
must be divided by the latter number; and then this
quotient must be multiplied by 100 to obtain a
percentage. The calculation can be summarized as
follows:
(Premalpractice chance) – (Postmalpractice chance)
__________________________________________________________
x 100
100 – (Postmalpractice chance)

case suggests that this has not been achieved by the present language of
MCL 600.2912a(2). It is ironic, as Chief Justice TAYLOR points out, ante at
164 n 14, that the majority holding in Fulton continues apparently to be
the law of our state, despite the fact that not a single justice on this Court
agrees with this holding and despite the fact that three justices (those
supporting Justice CAVANAGH’s opinion), who support the dissent in
Fulton, are effectively marshaled in support of this conclusion. Nonethe-
less, I think that Chief Justice TAYLOR’s analysis in this regard is correct.
2008] STONE V WILLIAMSON 219
OPINION BY MARKMAN, J.

If this percentage is greater than 50, the plaintiff may

be able to prevail; if this percentage is 50 or less, then
the plaintiff cannot prevail.
Because it is possible that the bad outcome in this
case, i.e., amputation, would have occurred even if
plaintiff had received proper treatment, the instant
case is a “lost opportunity” action. Because plaintiff’s
“lost opportunity” was greater than 50 percent, I would
affirm the result of the Court of Appeals.
220 482 MICH 220 [July

DAIMLERCHRYSLER CORPORATION v STATE TAX COMMISSION

FORD MOTOR COMPANY v STATE TAX COMMISSION
DETROIT DIESEL CORPORATION v STATE TAX COMMISSION

Docket Nos. 133394, 133396, 133400 to 133406. Argued March 4, 2008

(Calendar No. 2). Decided July 30, 2008.
DaimlerChrysler Corporation, Ford Motor Company, and Detroit
Diesel Corporation separately sought tax-exemption certificates
under MCL 324.5901 et seq. of the Natural Resources and
Environmental Protection Act (NREPA) for equipment known
as “test cells” that the companies use to determine whether the
vehicles and engines they sell comply with federal emissions
standards. In addition, Detroit Diesel sought a tax-exemption
certificate for a diesel engine assembly line known as the
Equinox Line facility. The Department of Environmental Qual-
ity (DEQ) denied certificates for all the equipment, and the
State Tax Commission (STC) affirmed the denials. The compa-
nies petitioned various circuit courts for review of the STC’s
decisions. The Wayne Circuit Court, Michael J. Callahan, J.,
reversed with regard to Ford’s equipment, and the STC, the
DEQ, and intervening respondent the city of Dearborn sepa-
rately appealed. The Wayne Circuit Court, Isidore B. Torres, J.,
affirmed with regard to Detroit Diesel’s equipment, and Detroit
Diesel appealed. The Washtenaw Circuit Court, Timothy P.
Connors, J., and the Oakland Circuit Court, Michael D. Warren,
Jr., J., also affirmed with regard to DaimlerChrysler’s equip-
ment, and DaimlerChrysler appealed. After consolidating the
appeals, the Court of Appeals, METER, P.J., and O’CONNELL and
DAVIS, JJ., held that the test cells qualified for the tax exemp-
tions, but the Equinox Line did not. 274 Mich App 108 (2007).
The DEQ, the STC, and the cities of Auburn Hills and Dearborn
filed separate applications for leave to appeal and Detroit Diesel
cross-appealed. The Supreme Court granted all the applications
and cross-applications. 480 Mich 880 (2007).
In an opinion by Justice YOUNG, joined by Chief Justice TAYLOR
and Justice CAVANAGH, and an opinion by Justice KELLY, the
Supreme Court held:
2008] DAIMLERCHRYSLER CORP V STATE TAX COMM 221

The Court of Appeals judgment is affirmed with respect to its

holdings that Detroit Diesel was not entitled to a tax exemption
and was not deprived of due process during the STC proceedings,
but reversed with respect to its holding that the petitioners’
test-cell equipment was eligible for a tax exemption, and the
decision of the STC is reinstated.
Justice YOUNG, joined by Chief Justice TAYLOR and Justice
CAVANAGH, would hold that the petitioners’ test-cell facilities did
not qualify for a tax exemption because they were not installed or
acquired for the primary purpose of controlling or disposing of air
pollution and are therefore not “facilities,” and because the
equipment itself does not actually and physically curb, control, and
eliminate pollution.
Justice KELLY, concurring in the result, agreed with Justice
YOUNG’s disposition but would hold that the reason the test cells,
which are facilities, are not entitled to an exemption is that MCL
324.5903 is ambiguous and, as such, must be strictly construed
against the taxpayers, denying them the exemption.
Justice WEAVER, joined by Justices CORRIGAN and MARKMAN,
concurring in part and dissenting in part, agreed with Justice
YOUNG’s conclusions regarding Detroit Diesel, but would hold that
the other petitioners’ test-cell facilities qualify for tax exemptions
under part 59 because they meet the definition of “facility” and the
requirements of MCL 324.5903.

Butzel Long (by Carl Rashid, Jr., Michael F. Smith,

and Katherine D. Goudie) for DaimlerChrysler Corpo-
ration and Detroit Diesel Corporation.

Honigman Miller Schwartz and Cohn LLP (by John

D. Pirich, Jeffrey A. Hyman, and Stewart L. Mandell)
for Ford Motor Company.

Michael A. Cox, Attorney General, Thomas L. Casey,

Solicitor General, and John Fordell Leone and Ross H.
Bishop, Assistant Attorneys General, for the Michigan
Department of Environmental Quality and the Michi-
gan State Tax Commission.

William H. Irving and Debra A. Walling for the city

of Dearborn.
222 482 MICH 220 [July
OPINION BY YOUNG, J.

Secrest Wardle (by Derk W. Beckerleg) for the city of

Auburn Hills.

YOUNG, J. These consolidated appeals concern a tax

exemption that aims to improve Michigan’s environ-
ment by encouraging entities to reduce air pollution
they create in Michigan. Based on the plain language of
the statute, we hold that in order to for equipment to be
exempt, it must be installed or acquired for the primary
purpose of regulating or curbing the spread of pollution
in Michigan. Further, the equipment must actually and
physically limit pollution. None of the equipment that is
the subject of this appeal meets these tests. Therefore,
the Court of Appeals erred by partially overturning the
decision of the Department of Environmental Quality
(DEQ) and the State Tax Commission (STC) to that
effect and holding that petitioners’ test cells qualify for
the exemption. We reverse the Court of Appeals in part
and restore the DEQ and STC decisions concluding that
none of the equipment qualifies for the tax exemption.

FACTS AND PROCEDURAL HISTORY

The material facts in these consolidated appeals are

undisputed. Pursuant to federal law, before issuing a
certificate allowing for sales of new vehicles, the Envi-
ronmental Protection Agency (EPA) must “test or re-
quire to be tested” new motor vehicles or new motor
vehicle engines to ensure compliance with emission
standards that the EPA promulgates.1 To that end, the
agency has created a testing regime, requiring vehicle
manufacturers to submit an application with an enor-
mous amount of supporting data.2 Ford Motor Com-
pany, DaimlerChrysler Corporation, and Detroit Diesel
1
42 USC 7525(a)(1) and 7521.
2
See 40 CFR 86.1 et seq.
2008] DAIMLERCHRYSLER CORP V STATE TAX COMM 223
OPINION BY YOUNG, J.

(petitioners) installed test cells. The test cells are large

buildings that can replicate many temperature conditions.
They also house equipment that allows for up to 40
different types of tests and data collection.3 Petitioners’
test cells are used in the manufacturing process to
ensure compliance with the regulations. In addition to
its test cell, Detroit Diesel installed a new engine
production line to meet federal emissions regulations.
All the petitioners sought tax exemptions from the STC
under part 594 of the Natural Resources and Environ-
mental Protection Act (NREPA)5 for their test cells, and
Detroit Diesel also petitioned for an exemption for its
engine line. Part 59 provides real and personal property
tax exemptions, as well as sales and use tax exemptions
for certain air pollution control facilities.6 The law
requires that the STC refer applications to the DEQ.
The DEQ concluded that none of petitioners’ equip-
ment qualified for an exemption under part 59 because
its primary purpose was not to reduce pollution, but to
test products for compliance with federal emissions
standards and to manufacture engines that comply with
3
Narrative Statement attached to DaimlerChrysler Auburn Hills Ap-
plication for Tax Exemption Certificate, July 14, 2003, pp 5-11. The
Auburn Hills DaimlerChrysler test cell is similar to the test cells of the
other petitioners. The individual specifications of each test cell do not
control the disposition of this case. Therefore, this Auburn Hills Daim-
lerChrysler test cell summary can serve as a general example for
purposes of analysis.
4
MCL 324.5901 et seq.
5
MCL 324.101 et seq.
6
Ford had previously applied for and received a tax exemption under
part 59 for its Allen Park test cell facility in 2001. While the applications
involved in the instant action were pending in 2004, DEQ notified Ford
that it was requesting revocation of its exemption for the Allen Park
facility because the facility did not meet the requirements of part 59. The
STC rejected the revocation, though, concluding that an exemption
certificate under part 59 cannot be revoked. That exemption dispute is
not before the Court.
224 482 MICH 220 [July
OPINION BY YOUNG, J.

those standards. The DEQ also found that all the equip-
ment actually generated some pollution during the testing
or manufacturing processes, instead of physically dispos-
ing of air pollution or controlling it as the law requires.
The STC agreed and denied all the exemptions. Petition-
ers appealed to various circuit courts. Ford’s four exemp-
tion denials were reversed, while denials for Daimler-
Chrysler and Detroit Diesel were affirmed.
The Court of Appeals granted the appellate applica-
tions of all the aggrieved parties and consolidated the
cases on appeal. Its published opinion held that tax
exemptions must be issued for all petitioners’ test cells.
The Court of Appeals concluded that the primary purpose
of the test cells is to reduce pollution and that they need
not physically or directly reduce pollution in order to
qualify as tax-exempt. However, the Court of Appeals
affirmed the denial of an exemption for Detroit Diesel’s
engine manufacturing line on the ground that its primary
purpose was engine manufacturing, not pollution reduc-
tion. The Court also held that no due process violation
occurred during the STC’s consideration of Detroit Die-
sel’s application for a tax exemption.7 This Court granted
leave to appeal.8

STANDARD OF REVIEW

The Court reviews de novo motions for summary

disposition.9 Issues of statutory construction are also
reviewed de novo.10
7
We agree with the Court of Appeals that the full hearing conducted by
the STC satisfied Detroit Diesel’s due process rights.
8
480 Mich 880 (2007).
9
Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201
(1998).
10
City of Taylor v Detroit Edison Co, 475 Mich 109, 115; 715 NW2d 28
(2006).
2008] DAIMLERCHRYSLER CORP V STATE TAX COMM 225
OPINION BY YOUNG, J.
ANALYSIS

The primary issue on appeal is whether the Court of

Appeals erred in its application of the tax exemption of
part 59 of NREPA. As noted, the Court of Appeals
reached different conclusions for the petitioners’ test
cells and Detroit Diesel’s engine line. With regard to the
test cells, the Court held:
[I]t is plainly apparent to us that the test cells were
“installed or acquired for the primary purpose of control-
ling or disposing of air pollution” and that the test cells
were designed and are operated “primarily for the control,
capture, and removal of pollutants from the air, and [are]
suitable, reasonably adequate, and meet[] the intent and
purposes of part 55 . . . .”[11]

However, with regard to Detroit Diesel’s engine line,

the Court reached the opposite conclusion, holding that
“[c]learly, the engine line . . . is not ‘operated primarily
for the control, capture, and removal of pollutants from
the air . . . .’ ”12
While the Court of Appeals quoted language from the
proper statutory provisions, the Court did not offer a
construction of that language. Instead, the Court held
that it was plain and clear which equipment was eligible
and which was not. As will be discussed later, the
statutory provisions provide no principled basis for
distinguishing between the different equipment in-
volved in this appeal. Under the plain language of these
provisions, neither the test cells nor the engine line
qualifies for the exemption.
MCL 324.5901 defines “facility,” in part, as
11
Ford Motor Co v State Tax Comm, 274 Mich App 108, 113; 732 NW2d
591 (2007) (alterations in Ford Motor).
12
Id. at 118.
226 482 MICH 220 [July
OPINION BY YOUNG, J.

machinery, equipment, structures, or any part or accesso-

ries of machinery, equipment, or structures, installed or
acquired for the primary purpose of controlling or dispos-
ing of air pollution that if released would render the air
harmful or inimical to the public health or to property
within this state.

An exemption for a particular “facility” requires a

determination by the DEQ that “the facility is designed
and operated primarily for the control, capture, and
removal of pollutants from the air, and is suitable,
reasonably adequate, and meets the intent and pur-
poses of part 55[13] and rules promulgated under that
part.”14
Thus, the equipment must meet the requirements of
both §§ 5901 and 5903 to qualify for the tax exemption.
Section 5901’s definition of “facility” expressly requires
that the equipment be “installed or acquired for the
primary purpose of controlling or disposing of air
pollution . . . .” “Control” means to “exercise restraint
or direction over; dominate, regulate, or command; to
hold in check; curb.”15 “Dispose of” means “a. to deal
with conclusively; settle. b. to get rid of; discard or
destroy.”16
The primary purpose of this equipment is to build
engines (Detroit Diesel) or test engines (petitioners’
test cells). The ancillary effect of the equipment is the
control of pollution emitted by the engines. While the
test cells help petitioners ensure that they are produc-
ing less polluting engines, the primary purpose of this
equipment is not to regulate, curb the spread of, or
destroy air pollution—and certainly not “pollution that
13
MCL 324.5501 et seq.
14
MCL 324.5903 (emphasis added).
15
Webster’s Universal College Dictionary (1997).
16
Random House Webster’s College Dictionary (1997).
2008] DAIMLERCHRYSLER CORP V STATE TAX COMM 227
OPINION BY YOUNG, J.

if released would render the air harmful . . . to the

public health or to property within this state.”17 Instead,
the primary purpose of the equipment is to test engines
to ensure that petitioners have properly designed their
engines to meet federal regulations so that they can sell
them to consumers.18 Furthermore, the equipment it-
self does not get rid of or curb air pollution. Thus,
petitioners’ test cells are not “facilities” as defined by
MCL 324.5901.
Even assuming that petitioners’ federally required
pollution equipment and Detroit Diesel’s engine line
qualify as “facilities,” petitioners are still not entitled to
an exemption because none of the equipment qualifies
under § 5903. Under that section, the DEQ must find
“that the facility is designed and operated primarily for
the control, capture, and removal of pollutants from the
air.” There are a number of terms in this provision that
need to be defined to properly construe it. The focus of
17
MCL 324.5901 (emphasis added). The dissent is correct that the
statute does not require that the equipment “solely” control pollution in
Michigan. However, this equipment does not control any pollution in
Michigan. It is the engines and vehicles tested that emit less pollution.
While those vehicles may be sold in Michigan and may emit less pollution
than other vehicles sold in Michigan, the test cells and Detroit Diesel’s
engine plant do not control any pollution in Michigan or any other state.
18
The dissent misconstrues this statement to argue that this interpre-
tation would render any equipment required by a federal regulation
ineligible for the exemption. Regardless of whether the federal govern-
ment requires the installation of the pollution testing equipment, it is not
a “facility” under this statute unless its primary purpose is pollution
control or disposal. For example, in Covert Twp v State Tax Comm, 407
Mich 561; 287 NW2d 895 (1980), federal law required that the petitioner
install a containment device at its nuclear facility. That equipment still
qualified under the statute at issue because its primary purpose was to
control pollution at the site in the case of an accident at the nuclear
facility. The primary purpose of the test cells and Detroit Diesel’s engine
plant is not control or disposal of pollution. Therefore, regardless of
whether federal law or “philanthropy” motivated petitioners to install
the test cells or the engine plant, they do not qualify for the exemption.
228 482 MICH 220 [July
OPINION BY YOUNG, J.

the section is on the “design” and the “operation” of the

facility. “Design” means “to intend for a definite pur-
pose,” while “operate” means “to work, perform, or
function, as a machine does . . . to bring about, effect, or
produce, as by action or the exertion of force or influ-
ence.”19 Thus, the facility must be intended to and bring
about “the control, capture, and removal of pollutants
from the air.” “Control” has already been defined.
“Capture” means “to gain control of or exert influence
over,” and “remove” means “to move or shift from a
place or position; to eliminate; do away with or put an
end to.”20 Because the Legislature used the conjunction
“and,” a qualifying facility must do all three things:
curb, control, and eliminate pollution. Furthermore,
the words suggest that the facility must actually and
physically limit pollution. They do not stand for the
proposition that the facility itself may contribute to the
creation of a product that pollutes less than a similar
product, which is what the equipment in this case does.
Because the statutory language requires the facility to
do the removing, controlling, and capturing of pollu-
tion, this equipment does not qualify.
The Court of Appeals held that the test cells qualified
under § 5903 “because without the test cells, [petition-
ers] would not be able to ensure that their products are
adequately controlling, capturing, and removing pollut-
ants from the air as compared to earlier versions of
their vehicles and engines.”21 This observation misses
the mark. The fact that the federal government may
require such pollution control testing equipment has
nothing to do with its eligibility for a tax exemption
under Michigan law. The dissent makes a similar ana-
19
Random House Webster’s College Dictionary (1997).
20
Id.
21
Ford Motor, supra at 114 (emphasis added).
2008] DAIMLERCHRYSLER CORP V STATE TAX COMM 229
OPINION BY YOUNG, J.

lytic mistake, asserting that the test cells qualify be-

cause they “control” pollution “by regulating the emis-
sions output” and “by curbing the levels of pollutants
released into the air in the first place”; they “capture”
pollution by “ensur[ing] that pollutants that would
otherwise have been released into the atmosphere are
never produced in the first place”; and they “remove”
pollution “by preventing the pollutants from being
created in the first place.”22 The problem with both of
these analyses is that the test cells, much like Detroit
Diesel’s engine line, are not the source of the removal,
control, or capture of pollution as required by the
exemption. The testing process both produces and re-
leases pollution contrary to the requirements of the
statute. The design of the engine, and the engine alone
once put into manufacture and sold in a vehicle, accom-
plishes the removal, control, and capture of pollution
because such an engine produces less pollution than
other models. Without the changes to the design of the
engine, the test cells would accomplish nothing. Be-
cause the statutory language requires the facility to do
the removing, controlling, and capturing, and the test
cells and the pollution testing equipment in the engine
plant do not remove, control, or capture pollutants, this
equipment does not qualify for the tax exemption.
Furthermore, none of the pollution control created by
redesigned engines tested by petitioners is intended to
improve the quality of Michigan’s air. This fact does not
trouble the Court of Appeals or the dissent, which must
presume that our Legislature intended a gift from
Michigan taxpayers to the nation by advancing na-
tional, rather than local, air quality goals.
Moreover, the Court of Appeals opinion does not
directly address the requirement that a facility must
22
Post at 255.
230 482 MICH 220 [July
OPINION BY YOUNG, J.

“meet[] the intent and purposes of part 55” of NREPA.23

A review of the other provisions in part 55 leaves little
question that part 55 regulates the construction and
operation of sources of air pollution, and part 55 itself
defines “source” as “a stationary source.”24 The dissent
23
The dissent asserts that the purpose of that part is the prevention
and abatement of air pollution. In addition to being overly simplistic, this
interpretation, when applied to MCL 324.5903, violates the rule of
statutory construction that the Court should not interpret a statute in a
way that renders part of it nugatory or mere surplusage. Grimes v Dep’t
of Transportation, 475 Mich 72, 89; 715 NW2d 275 (2006). MCL 324.5903
provides: “If the department finds that the facility is designed and
operated primarily for the control, capture, and removal of pollutants
from the air, and is suitable, reasonably adequate, and meets the intent
and purposes of part 55 and rules promulgated under that part, the
department shall notify the state tax commission, which shall issue a
certificate.” Thus, the statute requires that the “facility” control, cap-
ture, and remove pollutants and meet the intent and purposes of part 55.
If the dissent is correct that the “intent and purposes” of part 55 are
simply the reduction of pollution, then that requirement adds nothing to
the first requirement. However, our interpretation that the “intent and
purposes” of part 55 are the reduction of pollution at stationary sources
adds something to the first requirement, namely a specific source of
pollution that is to be targeted.
24
MCL 324.5501(t). The dissent decries our effort to ascertain the
intent and purposes of part 55 by considering the whole of part 55. The
dissent would prefer to look at one sentence of § 5540 of part 55 that
supports the dissent’s result to ascertain the intent and purposes of part
55.
The entirety of § 5540 is:

It is the purpose of this part to provide additional and cumu-

lative remedies to prevent and abate air pollution. This part does
not abridge or alter rights of action or remedies now or hereafter
existing. This part or anything done by virtue of this part shall not
be construed as estopping persons from the exercise of their
respective rights to suppress nuisances or to prevent or abate air
pollution. [MCL 324.5540.]

The clear import of this section is that part 55 provides additional

remedies to the existing remedies for the prevention or control of air
pollution, namely private nuisance suits or citizen suits under MCL
2008] DAIMLERCHRYSLER CORP V STATE TAX COMM 231
OPINION BY YOUNG, J.

attempts to overcome this fact by focusing on the

definition of “air pollution control equipment,” MCL
324.5501(c), arguing that because that definition is
arguably broad enough to encompass petitioners’ test
cells, the test cells must fall within the “intent and
purposes of part 55.” The dissent’s analysis of the
definition of “air pollution control equipment” must
occur in a vacuum to reach its conclusion.25 The air
pollution control equipment is only relevant to the
control of pollution at “sources” and in “processes.” A
“process” is defined as “an action, operation, or a series
of actions or operations at a source that emits or has the
potential to emit an air contaminant.” MCL
324.5501(p) (emphasis added). Therefore, the fact that,
as the dissent argues, a test cell theoretically qualifies
as “air pollution control equipment” is wholly irrel-
evant for purposes of part 55 because the test cell has no
effect on air pollution at any source or in any process.
324.1701. This section does not stand for the idea that the intent and
purposes of part 55 are to control air pollution in all its forms and from
any source, as the dissent asserts.
The dissent misconstrues the import of this discussion of § 5540.
Unlike the dissent, we do not believe that the “intent and purposes” of
part 55 are contained solely in § 5540. Instead, as noted, we believe that
the entirety of part 55 should be considered to determine its “intent and
purposes.” Therefore, we think it is unnecessary “to explain how
pollution-control facilities other than the test cells can provide ‘addi-
tional remedies’ that the test cells cannot.” Post at 258.
25
Similarly, the dissent has chosen the one subsection of MCL 324.5512(1)
that references “mode[s] of transportation” to bolster its conclusion that the
test cells meet the intent and purposes of part 55. Unfortunately, most of the
subsections of MCL 324.5512(1) deal with “stationary sources” in accor-
dance with the “intent and purposes” of part 55. We are uncertain why the
Legislature decided to confer rulemaking authority with regard to modes of
transportation in part 55; however, we do not believe that this one subsec-
tion alters the fact that the “intent and purposes of part 55 and rules
promulgated under that part” are to regulate air pollution from stationary
sources. See Mich Admin Code, R 336.1101 et seq.
232 482 MICH 220 [July
OPINION BY YOUNG, J.

Part 55 provides for permitting, monitoring to ensure

compliance, reporting, and imposing sanctions for vio-
lations. Notably, emissions from vessels and motor
vehicles are covered in parts 61, 63, and 65. The
inescapable conclusion is that part 55 serves to regulate
air pollution from stationary sources, while air pollution
from mobile sources is covered by other parts of
NREPA. Nothing about the test cells affects air pollu-
tion from a stationary source; in fact, as stated, a test
cell itself adds contaminants to the air in its location. If
reduction of vehicle emissions qualifies as meeting the
purpose of part 55, then the vehicles themselves would
also qualify. Likewise, any auto repair shop could claim
as exempt any equipment it installed to test motor
vehicle exhaust for excess pollution.
The Court of Appeals and the dissent simply fail to
give meaning to part 55. In so doing, they have broadly
construed this tax statute, contrary to the rule of
construction that exemptions be narrowly construed
against the taxpayer;26 distorted the purpose of this tax
statute; and awarded taxpayer money to business enti-
ties who fail to abate pollution in this state. In fact, the
dissent actively conflates part 55 with the other parts of
NREPA by concluding, “[a]s long as petitioners sell
engines and vehicles in Michigan, thereby reducing
harmful pollution in Michigan, the fact that they also
sell engines and vehicles in other states, thereby reduc-
ing pollution in those states as well, does not prevent
them from qualifying for the instant tax exemption.”27
The two published opinions interpreting this part of
NREPA support the conclusion that the exemption does
not apply to petitioners’ equipment. In Meijer, Inc v
26
See Wexford Medical Group v City of Cadillac, 474 Mich 192, 207; 713
NW2d 734 (2006), and post at 248.
27
Post at 253 n 15.
2008] DAIMLERCHRYSLER CORP V STATE TAX COMM 233
OPINION BY YOUNG, J.

State Tax Comm,28 the Court of Appeals held that a

trash compactor and baler, which Meijer installed to
replace an incinerator that polluted the air when burn-
ing trash from Meijer’s grocery stores, was eligible for
the tax exemption under MCL 336.1 (the predecessor to
MCL 324.5901). In the second case, Covert Twp Asses-
sor v State Tax Comm,29 this Court upheld the STC’s
grant of a tax exemption to Consumers Power Company
for a nuclear containment building at its nuclear power
plant. Both of these cases concerned sources of pollu-
tion that would have been subject to the regulatory
statutes of part 55.
This Court’s decision in Covert interpreted “primary
purpose” to mean “the primary purpose served by the
facility for which [the] exemption is sought.”30 While
the equipment in Covert was installed pursuant to
federal law, this Court stated that the “purpose served”
need not “align with the motivation of” those installing
the facilities.31 Nonetheless, the statute requires that
the primary purpose be the control or disposal of air
pollution. The equipment in Covert was installed to
prevent the release of hazardous materials in the event
of an accident at the petitioner’s nuclear facility in this
state. Therefore, the primary purpose was the control of
air pollution in the event of an accident. That primary
purpose qualified the equipment for the tax exemption.
Similarly, the “facility” in Meijer, a compactor and
baler, actually served the primary purpose of controlling
pollution in Michigan. The Meijer petitioner installed
the compactor and baler to replace its incinerator
because the incinerator produced pollution in excess of
28
66 Mich App 280; 238 NW2d 582 (1975).
29
407 Mich 561; 287 NW2d 895 (1980).
30
Id. at 580.
31
Id. at 580-581.
234 482 MICH 220 [July
OPINION BY YOUNG, J.

the amount allowed under the law. The compactor and

baler accomplished the same task as the incinerator
while producing less pollution.32
Contrary to the Court of Appeals conclusion, the test
cells are not analogous to the compactor and baler
because the test cells did not replace a more polluting
testing process. As noted by the Meijer panel, “had no
pollution problem existed, and appellee simply chose
the method of waste disposal by compacting and baling
in order to dispose of waste, it would be ineligible for tax
exemption because the necessary element—primary
pollution control purposes—would be lacking.”33 The
facilities in the instant case were installed for the
primary purpose of testing engines, which will theoreti-
cally produce less pollution than other engines once put
into production. However, petitioners simply chose a
method of testing. They did not install the test cells to
replace a process that accomplishes the same task with
more pollution. Thus, the Court of Appeals and the
dissent erroneously relied on Meijer to conclude that
ancillary equipment installed primarily for the purpose
of testing other equipment also qualifies for the exemp-
tion.
32
The dissent argues that under our interpretation of MCL 324.5901,
the compactor and baler would not qualify as a facility because the
equipment simply compresses or bales material. This argument miscon-
strues both our interpretation and the facts of Meijer. The Meijer
petitioner had been disposing of its refuse with an incinerator that
produced an abundance of pollution. As noted, the petitioner installed the
compactor and baler for the primary purpose of controlling the air
pollution produced by its refuse disposal system. Furthermore, when the
compactor and baler were operated they actually “controlled, captured,
and removed” pollutants at that site. The test cells simply do not perform
these functions. Any reduction of pollution that is connected to the test
cells is entirely contingent on the redesign and manufacture of the
engines and vehicles that may be introduced for future sales across the
country.
33
Meijer, supra at 285.
2008] DAIMLERCHRYSLER CORP V STATE TAX COMM 235
OPINION BY YOUNG, J.

The clear import of these cases and the statute is that

the “facility” must reduce the air pollution caused by
the operation of the petitioner’s Michigan site to qualify
for the tax exemption. However, the dissent argues that
the reduction of air pollution caused by the petitioner’s
engine products—well after those products have left the
petitioner’s control—can qualify the testing equipment
used to manufacture those products for the exemption.
This interpretation expands the exemption statute far
beyond its plain meaning and contrary to any rationale
that our Legislature entertained for affecting this
state’s environment.

CONCLUSION

In denying DaimlerChrysler’s application for its Au-

burn Hills test cell, the DEQ listed the following “Non-
Air Pollution Function(s) of Equipment”: “The testing
of vehicles is one of the manufacturing steps that the
applicant takes in researching, designing, manufactur-
ing, testing, marketing and selling vehicles.”34 In the
“comments” section, the DEQ states:
Testing vehicles at the Chrysler Technical Center actu-
ally generates and emits air contaminants. None of the
requested equipment controls, capture [sic] or removes
pollutants generated by the vehicle testing equipment. The
applicant has not satisfied its burden of establishing that
its described machinery, equipment, structures, or related
accessories were installed or acquired and designed and
operated to physically control, dispose, capture, and/or
remove air pollutants from the air, that if released would
render the air harmful, pursuant to the intent of Sections
5901 and 5903 of Part 59, as separate and distinct from
apparent other purposes of measuring, recording and as-
sessing data to determine if a product is fit for continued

34
DEQ Tax Exemption Review, December 15, 2003. The DEQ reached
the same conclusion with regard to the other petitioners’ test cells.
236 482 MICH 220 [July
OPINION BY KELLY, J.

production or commercial sales, or for other research,

manufacturing, marketing or sales purposes. The Depart-
ment finds that the applicant has not established a primary
purpose qualifying for a tax exemption under Part 59.[35]

The DEQ properly applied §§ 5901 and 5903 and con-

cluded that the test cells do not qualify for a tax
exemption. Therefore, we reverse the Court of Appeals
and reinstate the STC’s decision denying petitioners’
request for tax exemptions for their test cells. However,
we affirm the Court of Appeals holding that the Detroit
Diesel Equinox Line was not entitled to a tax exemption
and that Detroit Diesel received due process.

TAYLOR, C.J., and CAVANAGH, J., concurred with

YOUNG, J.

KELLY, J. (concurring in the result). Justice YOUNG

and Justice WEAVER disagree about whether the test cells
at Ford Motor Company, DaimlerChrysler Corporation,
and Detroit Diesel Corporation are entitled to tax-
exemption certificates. The justices reasonably apply the
statutory language, but reach opposite conclusions. In this
situation, judicial construction should be brought to bear
to resolve the issue. When the applicable canon of inter-
pretation is applied, it becomes apparent that the test cells
are not entitled to tax-exemption certificates. Thus, al-
though I disagree with some of his reasoning, I concur in
the result of Justice YOUNG’s opinion.
In addition, I agree with both Justice WEAVER and
Justice YOUNG that the Detroit Diesel Corporation en-
gine production equipment is not entitled to a tax-
exemption certificate. Finally, I agree that the corpora-
tion received a full hearing before the STC that satisfied
its due process rights.
35
Id.
2008] DAIMLERCHRYSLER CORP V STATE TAX COMM 237
OPINION BY KELLY, J.
THE TWO-PART TEST OF NREPA

The issue that divides Justice YOUNG and Justice

WEAVER is whether the test cells qualify for tax-exemption
certificates under part 59 of the Natural Resources and
Environmental Protection Act (NREPA).1 For purposes of
this case, the key provisions of part 59 are §§ 5901 and
5903. Section 5901 sets forth the definition of “facility.”
It provides in relevant part:
As used in this part, “facility” means machinery, equip-
ment, structures, or any part or accessories of machinery,
equipment, or structures, installed or acquired for the pri-
mary purpose of controlling or disposing of air pollution that
if released would render the air harmful or inimical to the
public health or to property within this state. . . .

Section 5903 explains when a “facility” is entitled to

a tax-exemption certificate. It states:
If the department finds that the facility is designed and
operated primarily for the control, capture, and removal of
pollutants from the air, and is suitable, reasonably adequate,
and meets the intent and purposes of part 55 and rules
promulgated under that part, the department shall notify the
state tax commission, which shall issue a certificate. The
effective date of the certificate is the date on which the
certificate is issued.

Using these statutes, a two-part test must be applied to

determine whether the test cells are entitled to tax-
exemption certificates. First, the test cells must qualify as
a “facility” under § 5901. Second, the “facility” must meet
the additional requirements set forth in § 5903.

SECTION 5901

With respect to the first consideration, the test cells

are facilities if they are (1) machinery, equipment,
1
MCL 324.5901 et seq.
238 482 MICH 220 [July
OPINION BY KELLY, J.

structures, or any part or accessories of machinery,

equipment, or structures and (2) installed or acquired
for the primary purpose of controlling or disposing of
air pollution (3) that if released would render the air
harmful or inimical to the public health or to property
within this state. It is uncontested that the test cells are
machinery, equipment, or structures. The dispute is
over the other two statutory requirements.
Respondents argue that the test cells were not in-
stalled or acquired for the primary purpose of control-
ling or disposing of air pollution. I disagree. Petitioners
installed the test cells solely to comply with pollution
laws. The test cells have no other purpose. Were it not
for pollution laws, petitioners could build their products
without the need for test cells. In fact, it would be
cheaper for them to do so. Thus, it seems clear to me
that the primary purpose of installing test cells was to
control air pollution.
Respondents also argue that the test cells do not
qualify as facilities because their primary purpose is not
to control or dispose of pollution within Michigan. I
reject this argument because the statute does not
require that the primary purpose of the equipment be to
improve air quality in Michigan. Instead, the statutory
command is satisfied if the pollution that the equip-
ment is concerned with controlling or disposing of, if
released, would “render the air harmful or inimical to
the public health or to property within this state.” The
command is satisfied here. If the pollutants that the
test cells are concerned with controlling were released
into the air, they would be harmful to the public health
and property within the state.
Finally, respondents argue that the test cells are not
facilities because they create a small amount of pollu-
tion. This fact is irrelevant. The test cells are facilities if
2008] DAIMLERCHRYSLER CORP V STATE TAX COMM 239
OPINION BY KELLY, J.

their primary purpose is controlling or disposing of

pollutants that, if released, would be harmful to the
public health and property within this state. These
requirements are satisfied.

SECTION 5903

The next step of the inquiry is to determine if the

test-cell facilities meet the requirements of § 5903. A
facility is entitled to a tax-exemption certificate under
this section if it is (1) designed and operated primarily
for the control, capture, and removal of pollutants from
the air, (2) suitable, reasonably adequate, and (3) meets
the intent and purposes of part 55 of the act.
Notably, § 5903 requires the “facility” to be “de-
signed and operated primarily for the control, capture,
and removal of pollutants from the air.” This differs
from § 5901, which requires the test cells to be “in-
stalled or acquired for the primary purpose of control-
ling or disposing of air pollution.” It must be assumed
that this difference in wording is purposeful. As a
result, § 5903 imposes a more stringent requirement
than § 5901. Accordingly, it does not follow from the
fact that the test cells qualify as “facilities” that they
are “designed and operated primarily for the control,
capture, and removal of pollutants from the air.”
The test cells do not actually remove pollution that is
already in the air. Instead, they are part of a process
that reduces the amount of pollution in the air by
preventing the creation of pollutants. Because the test
cells are not concerned with pollutants that are already
in the air, it can be argued that the test cells are not
“designed and operated primarily for the control, cap-
ture, and removal of pollutants from the air.” There is
some merit to this argument. Accordingly, I believe that
240 482 MICH 220 [July
OPINION BY KELLY, J.

it is reasonable to decide that the test cells do not

qualify for tax-exemption certificates. This is the result
reached by Justice YOUNG.
On the other hand, the test cells are operated solely
in an effort to comply with federal pollution standards.
By complying with these standards, the quantity of
pollutants in the air is reduced. Considering that the
test cells are part of a process that eliminates the
creation of pollutants, they remove pollutants that
would otherwise be in the air. The statute does not
explicitly require the facility to remove pollutants that
are already in the air. Hence, I believe that it is also
reasonable to decide that the facilities are entitled to
tax-exemption certificates. Justice WEAVER reaches this
conclusion.
Because I believe that both Justice YOUNG’s and
Justice WEAVER’s constructions of the statute are rea-
sonable, I conclude that the correct application of the
statute to the facts of this case is uncertain. As a
consequence, the statute is ambiguous.2 The remaining
provisions of NREPA do not clarify this ambiguity.
Accordingly, I conclude that it is appropriate to turn to
sources outside the statutory language to resolve the
case.

THE EFFECT OF DEQ RULINGS AND CASELAW

Both sides claim that the rule that deference is owed

to administrative interpretations supports their posi-
tion. The Department of Environmental Quality
(DEQ), which is authorized to determine eligibility for
part 59 tax exemptions, decided that the test cells at
2
A statute is ambiguous when its application to the facts of the case is
uncertain. Elias Bros Restaurants, Inc v Treasury Dep’t, 452 Mich 144,
150; 549 NW2d 837 (1996).
2008] DAIMLERCHRYSLER CORP V STATE TAX COMM 241
OPINION BY KELLY, J.

issue are not entitled to tax-exemption certificates.

However, this decision is inconsistent with at least one
recent DEQ decision that granted a tax-exemption
certificate to a test-cell facility. Accordingly, because the
DEQ’s current interpretation is inconsistent with an-
other of its recent interpretations, it does not weigh
heavily in favor of either position.
The parties also identify prior published court opin-
ions interpreting part 59 as supporting their positions.
But these opinions do not resolve the present case. In
Covert Twp Assessor v State Tax Comm,3 the facilities at
issue controlled, captured, and removed discharges re-
sulting from a nuclear accident.4 Accordingly, the facili-
ties’ primary concern was with pollutants that had
already been created. This differs from the test cells
involved here that have a goal of preventing pollutants
from ever being created. Thus, that case is not on point
because the facts were materially different. The other
case, Meijer, Inc v State Tax Comm,5 is also not directly
on point. Furthermore, it is a Court of Appeals decision.
As such, it is not binding on this Court.
Finally, we are directed to decisions of other states
interpreting their tax-exemption statutes. Given that
these cases involve statutes that differ from Michigan’s
statutes, I find them of little assistance in determining
the proper interpretation of the Michigan statute.

THE CANONS OF STATUTORY CONSTRUCTION

Because I cannot resolve the issue using the statute’s

language alone and the other sources I have mentioned
3
Covert Twp Assessor v State Tax Comm, 407 Mich 561; 287 NW2d 895
(1980).
4
Id. at 580.
5
Meijer, Inc v State Tax Comm, 66 Mich App 280; 238 NW2d 582
(1975).
242 482 MICH 220 [July
OPINION BY WEAVER, J.

do not point in either direction, I turn to the canons of

construction. Most applicable is the well-established
canon that tax exemptions are to be strictly construed.6
When this canon is applied, test-cell facilities are ex-
empt from taxation only if the statutory language does
not allow another construction. But another construc-
tion is not only possible, but reasonable. As a result, I
conclude that the test cells are not entitled to tax-
exemption certificates.

CONCLUSION

I conclude that the test cells qualify as facilities

under § 5901, but that the correct application of § 5903
is unclear. DEQ rulings and existing caselaw are not
dispositive of the issue. As a result, I engage in judicial
construction to determine whether the facilities are
entitled to tax-exemption certificates.
The appropriate canon of construction is that tax
exemptions are to be strictly construed. By strictly
construing the exemption in question, I conclude that
the test-cell facilities are not entitled to tax-exemption
certificates. As a consequence, I concur with Justice
YOUNG’s resolution of this issue. I also agree that
Detroit Diesel’s engine line is not eligible for the tax
exemption. Therefore, I agree with Justice YOUNG that
the Court of Appeals decision should be partially af-
firmed and partially reversed.

WEAVER, J. (concurring in part and dissenting in

part). I concur with the lead opinion’s holding that
Detroit Diesel’s Equinox Line does not qualify for tax
exemptions under part 59 of the Natural Resources and
6
See, e.g., East Saginaw Mfg Co v East Saginaw, 19 Mich 259, 279
(1869); Michigan United Conservation Clubs v Lansing Twp, 423 Mich
661, 664; 378 NW2d 737 (1985).
2008] DAIMLERCHRYSLER CORP V STATE TAX COMM 243
OPINION BY WEAVER, J.

Environmental Protection Act (NREPA)1 because the

Equinox Line was not installed for the primary purpose
of controlling or disposing of air pollution, but was
instead installed for the primary purpose of producing a
new type of vehicle engine for sale. However, I dissent
from the lead opinion’s holding that petitioners’ test-
cell facilities do not qualify for tax exemption under
part 59. I would affirm the Court of Appeals and hold
that petitioners’ test-cell facilities qualify for tax ex-
emptions under part 59 because they meet the defini-
tion of “facility” in MCL 324.5901 and, under MCL
324.5903, are “designed and operated primarily for the
control, capture, and removal of pollutants from the
air,” are “suitable” or “reasonably adequate” at abating
air pollution, and “meet the intent and purposes of part
55” of NREPA, MCL 324.5501 et seq., which regulates
air pollution.

I. FACTS AND PROCEEDINGS

The material facts in these seven consolidated cases

are undisputed. Petitioners, Ford Motor Company,
DaimlerChrysler, and Detroit Diesel, manufacture mo-
tor vehicles and engines. Petitioners’ vehicles and en-
gines are subject to federal air-quality regulations pro-
mulgated by the Environmental Protection Agency
(EPA).2 The vehicles and engines must pass EPA-
mandated emissions tests before the vehicles and en-
gines can be mass-produced and sold to consumers.
Each of the petitioners established “test cell” facilities
designed to test vehicle and engine emissions to ensure
compliance with EPA regulations. In the test cells,
vehicles and engines are placed in a closed room or a bay
with a hose attached to the exhaust pipe. While the
1
MCL 324.5901 et seq.
2
See 42 USC 7401 et seq.
244 482 MICH 220 [July
OPINION BY WEAVER, J.

vehicle or engine is emitting exhaust, samples of the

exhaust are sent through devices that measure the
emissions and determine whether those emissions com-
ply with federal regulations. The test cells then release
the tested emissions into the air.
In addition to a test-cell facility, Detroit Diesel built
its Equinox Line facility after its existing Series 60
diesel engine failed to meet the newly enacted EPA
emission standards. The Equinox Line facility was
designed to manufacture new diesel engines that meet
the newest federal pollution-control standards. In Oc-
tober 2002, after Detroit Diesel made significant design
changes to the original Series 60 engine, Detroit Die-
sel’s new Equinox Line of diesel engines obtained EPA
certification.
In 2001, Ford Motor Company filed for tax exemp-
tions for test cells and equipment under part 59 of
NREPA,3 which permits tax exemptions for certain
facilities that reduce air pollution. This application was
granted by the State Tax Commission (STC) after
review and approval by the Michigan Department of
Environmental Quality (DEQ). In 2003 and 2004, Ford,
DaimlerChrysler, and Detroit Diesel filed for multiple
exemptions under part 59 for similar test-cell facilities
located around the state. Additionally, in 2003 Detroit
Diesel applied for tax exemptions for its Equinox Line
facility. The STC referred the exemption requests to the
DEQ, which concluded that the test-cell facilities and
the Equinox Line facility did not meet the requirements
for a part 59 tax exemption.
The DEQ concluded that the primary purpose of the
test cells was to enable petitioners to sell their vehicles
by complying with federal law, not to reduce pollution.
3
MCL 324.5901 et seq.
2008] DAIMLERCHRYSLER CORP V STATE TAX COMM 245
OPINION BY WEAVER, J.

The DEQ explained that the test cells did not qualify for
the exemption because they did not physically remove
or control pollution, but rather actually created pollu-
tion during the testing process. In regard to Detroit
Diesel’s Equinox Line, the DEQ determined that it was
not a qualifying facility under part 59 because its
primary purpose was “to manufacture diesel engines
for sale by Detroit Diesel.” The DEQ determined that
because the air emissions from the Equinox Line manu-
facturing facility were not significantly different from
those emitted by the Series 60 facility, the Equinox Line
did not qualify as a “process change” under part 59 that
met the goal of reducing pollution. As a result, the STC
rejected the tax exemption requests for the test-cell
facilities and the Equinox Line facility.
In separate lawsuits, petitioners appealed to various
circuit courts. In Ford’s suits, the Wayne Circuit Court
reversed the STC’s denials of the tax-exemption appli-
cations, ruling that the court was constrained by Meijer,
Inc v State Tax Comm, 66 Mich App 280; 238 NW2d 582
(1975), to conclude that the test-cell facilities met the
part 59 requirements because they were ancillary
equipment for the control of pollution. The city of
Dearborn, an intervening respondent, filed four sepa-
rate applications in the Court of Appeals, arguing that
the circuit court had improperly overturned fact-
finding of the administrative agency.
In Detroit Diesel’s suit, the Wayne Circuit Court
affirmed the STC’s decision because there was compe-
tent, material, and substantial evidence supporting the
STC’s conclusion that the test cells and the Equinox
Line do not actually remove pollution, but rather oper-
ate for the primary purpose of producing engines for
sale. Detroit Diesel applied for leave to appeal in the
Court of Appeals.
246 482 MICH 220 [July
OPINION BY WEAVER, J.

In DaimlerChrysler’s suits, the Oakland Circuit

Court affirmed the STC’s decisions, holding that there
was competent, material, and substantial evidence for
the STC’s conclusion that the test cells do not actually
remove pollution and that the primary purpose for the
test cells was to ensure that DaimlerChrysler’s vehicles
were sellable. DaimlerChrysler applied for leave to
appeal in the Court of Appeals.
The Court of Appeals issued an order consolidating
all the appeals. The Court of Appeals, in a published
opinion, held that all the test-cell facilities met the
requirements of the part 59 tax exemption as a matter
of law, but that Detroit Diesel’s Equinox Line facility
did not.4 The panel concluded that the test cells quali-
fied for tax-exemption certificates because petitioners
installed the test cells solely to ensure compliance with
EPA emission standards. Thus, the test cells were
installed for the primary purpose of controlling or
disposing of air pollution and were designed and oper-
ated primarily for the control, capture, and removal of
pollutants from the air. The panel held that Detroit
Diesel’s Equinox Line did not meet the requirements of
part 59 because it was operated primarily for produc-
tion of a new type of engine for sale, not for the control,
capture, or removal of pollutants in the air. The Court
of Appeals also rejected Detroit Diesel’s claims that the
STC’s hearing process violated the Administrative Pro-
cedures Act (APA), MCL 24.201 et seq., and due-process
principles.
The DEQ and the STC filed separate applications for
leave to appeal in each case. Detroit Diesel cross-
appealed. The city of Auburn Hills appealed the deci-
sion regarding DaimlerChrysler’s Auburn Hills test
4
Ford Motor Co v State Tax Comm, 274 Mich App 108; 732 NW2d 591
(2007).
2008] DAIMLERCHRYSLER CORP V STATE TAX COMM 247
OPINION BY WEAVER, J.

cell, and the city of Dearborn appealed the decision

involving Ford’s Dearborn test cell. This Court granted
all the applications for leave to appeal or cross-appeal.5

II. STANDARD OF REVIEW

This case involves the interpretation of part 59 of

NREPA. This Court reviews questions of statutory
interpretation de novo.6 Clear and unambiguous statu-
tory language is given its plain meaning and is enforced
as written.7
Further, this case involves review of the STC’s and
the DEQ’s interpretation and application of part 59.
This Court reviews final decisions from administrative
agencies by determining whether they are authorized
by law and whether they are supported by competent,
material, and substantial evidence on the whole record.8
Although this Court affords respectful consideration to
the construction of statutory provisions by any particu-
lar department of the government, the department’s
interpretation is not binding on this Court and cannot
be used to overcome the statute’s unambiguous mean-
ing.9 Furthermore, this Court owes no deference to an
agency determination when an agency issues contradic-
tory rulings on the same issue and changes its policy
mid-course, as the DEQ has in this case. “ ‘Substantial
evidence’ is evidence that a reasonable person would
accept as sufficient to support a conclusion. While this
5
DaimlerChrysler Corp v State Tax Comm, 480 Mich 880 (2007).
6
Ayar v Foodland Distributors, 472 Mich 713, 715; 698 NW2d 875
(2005).
7
Id. at 716.
8
Reed v Hurley Medical Ctr, 153 Mich App 71, 75; 395 NW2d 12 (1986);
MCL 24.306.
9
Catalina Marketing Sales Corp v Dep’t of Treasury, 470 Mich 13,
23-24; 678 NW2d 619 (2004).
248 482 MICH 220 [July
OPINION BY WEAVER, J.

requires more than a scintilla of evidence, it may be

substantially less than a preponderance.”10

III. PART 59 TAX EXEMPTIONS

Part 59 of NREPA provides real property, personal

property, sales, and use tax exemptions for certain
facilities designed to reduce air pollutants. Tax exemp-
tions are strictly construed against the taxpayer.11 How-
ever, the Court interprets the statutory language creat-
ing the tax exemption according to common and
approved usage.12 In order to qualify for the tax exemp-
tions under part 59, the property in question must first
meet the definition of “facility” in part 59. Part 59
defines “facility” as follows:
[M]achinery, equipment, structures, or any part or ac-
cessories of machinery, equipment, or structures, installed
or acquired for the primary purpose of controlling or
disposing of air pollution that if released would render the

10
Dep’t of Community Health v Risch, 274 Mich App 365, 372-373; 733
NW2d 403 (2007) (citation and quotation marks omitted). The city of
Dearborn argues in its application that the STC’s decision to deny Ford’s
application for a tax exemption was supported by competent, material,
and substantial evidence on the record and should therefore not be
disturbed on appeal. We reject this argument because it is based on the
incorrect assumption that the circuit court reversed the STC on a purely
factual basis, instead of a legal one. On appeal, the Court of Appeals did
not consider whether the STC’s decision to deny Ford’s application for a
tax exemption was unsupported by factual evidence. Rather, the Court of
Appeals held that the STC’s legal rulings were erroneous as a matter of
law. Under MCL 24.306 of the APA, a reviewing court can set aside the
STC’s decision on a legal basis or on a factual basis if the facts are not
supported by competent, material, and substantial evidence. Therefore,
the Court of Appeals was free to rule that the STC’s decision was legally
erroneous, even if it was supported by competent, material, and substan-
tial evidence.
11
Elias Bros Restaurants, Inc v Dep’t of Treasury, 452 Mich 144, 150;
549 NW2d 837 (1996).
12
Id.
2008] DAIMLERCHRYSLER CORP V STATE TAX COMM 249
OPINION BY WEAVER, J.

air harmful or inimical to the public health or to property

within this state. Facility includes an incinerator equipped
with a pollution abatement device in effective operation.
Facility does not include an air conditioner, dust collector,
fan, or other similar facility for the benefit of personnel or
of a business. Facility also means the following, if the
installation was completed on or after July 23, 1965:
(a) Conversion or modification of a fuel burning system
to effect air pollution control. The fuel burner portion only
of the system is eligible for tax exemption.
(b) Installation of a new fuel burning system to effect air
pollution control. The fuel burner portion only of the
system is eligible for tax exemption.
(c) A process change involving production equipment
made to satisfy the requirements of part 55 and rules
promulgated under that part. The maximum cost allowed
shall be 25% of the cost of the new process unit but shall
not exceed the cost of the conventional control equipment
applied on the basis of the new process production rate on
the preexisting process. [MCL 324.5901 (emphasis added).]

After property has been designated as a facility under

MCL 324.5901, the facility must meet the following
further requirements in order to qualify for tax exemp-
tions:
If the department finds that the facility is designed and
operated primarily for the control, capture, and removal of
pollutants from the air, and is suitable, reasonably ad-
equate, and meets the intent and purposes of part 55 and
rules promulgated under that part, the department shall
notify the state tax commission, which shall issue a certifi-
cate. . . . [MCL 324.5903.]

Therefore, property must meet the definition of “facil-

ity” under MCL 324.5901, and, under MCL 324.5903,
(1) be “designed and operated primarily for the control,
capture, and removal of pollutants from the air,” (2) be
“suitable, reasonably adequate,” and (3) “meet the
250 482 MICH 220 [July
OPINION BY WEAVER, J.

intent and purposes of part 55” in order to qualify for

tax exemptions under part 59.

A. TEST-CELL FACILITIES

I dissent from the lead opinion, and would hold that

the petitioners’ test-cell facilities qualify for tax exemp-
tions under part 59. In order to determine whether the
petitioners’ test-cell facilities qualify for tax exemp-
tions, it is necessary to first determine whether the
test-cell facilities are “facilities” under MCL 324.5901.
MCL 324.5901 unambiguously defines a facility as
including “machinery, equipment, structures, or any
part or accessories of machinery, equipment, or struc-
tures, installed or acquired for the primary purpose of
controlling or disposing of air pollution that if released
would render the air harmful or inimical to the public
health or to property within this state.” (Emphasis
added.)
Accordingly, it is necessary to determine whether the
test cells were installed or acquired for the primary
purpose of controlling or disposing of air pollution in
Michigan. An ordinary meaning of “control” means to
“exercise restraint or direction over; dominate, regu-
late, or command; to hold in check; curb.”13 It is
undisputed that petitioners installed and operated the
test cells for the sole purpose of regulating emissions to
meet federal standards and curb emissions output in
the engines and vehicles produced. Regulating and
curbing emissions is thus a method of controlling emis-
sions.
The STC and the DEQ argue that petitioners did not
install the test cells with the primary motive of control-
ling emissions because the test cells were installed to
13
Webster’s Universal College Dictionary (1997).
2008] DAIMLERCHRYSLER CORP V STATE TAX COMM 251
OPINION BY WEAVER, J.

create vehicles conforming to EPA regulations. How-

ever, the petitioners’ motive behind installing the test
cells is not determinative of the primary purpose of the
test cells. It is immaterial that the test cells were
created so that the petitioners’ engine and vehicle
emissions would satisfy federal emissions regulations:
The use of the words “primary purpose” in § 1 [now
MCL 324.5901], and “operated primarily for” in § 3 [now
MCL 324.5903] of the Air Exemption Act [now part 59]
evidences a legislative concern with the primary purpose
served by the facility for which exemption is sought. This
purpose need not, necessarily, align with the motivation of
the persons installing, acquiring or operating the facili-
ties.[14]

The test cells primarily operate to regulate and reduce

air pollutants; for tax-exemption purposes, it does not
matter why the test cells were implemented.
The STC and the DEQ additionally argue that the
test-cell facilities are not “facilities” under MCL
324.5901 because the test-cell facilities actually create a
small amount of pollution through the testing process.
This creation of a small amount of pollution does not,
however, alter the primary purpose of the test cells,
which is to control pollution through prevention. As
petitioners point out, many pollution-control machines
also create pollution. For example, mechanical balers
and compactors, such as those in Meijer, supra, release
some exhaust during recycling operations.
The STC and the DEQ also argue that the clause
“within this state” in MCL 324.5901 bars tax exemption
for petitioners because the exhaust emissions that the
test cells reduce are released primarily outside Michi-
gan. This argument is unpersuasive. First, the STC and
14
Covert Twp Assessor v State Tax Comm, 407 Mich 561, 580-581; 287
NW2d 895 (1980).
252 482 MICH 220 [July
OPINION BY WEAVER, J.

the DEQ did not preserve this issue for appeal because
they did not raise and argue it before the Court of
Appeals. Furthermore, the phrase “within this state”
modifies the conjoined phrases “to the public health or
to property,” not “the primary purpose of controlling air
pollution.” In other words, the statute merely requires
that the “primary purpose” of the machinery installed
be to “control . . . air pollution,” not to specifically
control air pollution that would be released primarily
within this state, as the STC and the DEQ argue. The
statute then refines the category of “air pollution” to
refer to a subcategory of pollution “that if released
would render the air harmful or inimical to the public
health or to property within this state.” This phrase
indicates that if the pollution that has been controlled
were to be released, that pollution must be of the type
that would be harmful to public health or property in
Michigan in order for machinery that controls such air
pollution to qualify as a “facility.” Thus, if the test cells
at issue were installed for the primary purpose of
controlling air pollution, and if the release of the
controlled air pollution would render the air harmful to
public health or property within Michigan, then the test
cells qualify as a “facility.” Here, the primary purpose of
the test cells is to reduce air pollution by testing the
emissions released by vehicles. Moreover, there is no
question that vehicles and engines manufactured by the
petitioners are sold in Michigan, and that the pollution
controlled by the test cells is harmful to the public
health. It stands to reason then that the vehicles and
engines sold in Michigan emit fewer noxious pollutants
into Michigan’s atmosphere than they would have re-
leased without the test cells. Therefore, the test cells
control air pollution that, if released, “would render the
air harmful or inimical to the public health or to
2008] DAIMLERCHRYSLER CORP V STATE TAX COMM 253
OPINION BY WEAVER, J.

property within this state.” Accordingly, the test cells

are “facilities” under MCL 324.5901.15
Petitioners’ test-cell facilities were installed or ac-
quired for the primary purpose of controlling or dispos-
ing of air pollution in Michigan because the test cells
curb the spread of air pollution by ensuring that less
pollution is released into the atmosphere in the first
place; therefore, the test-cell facilities are “facilities”
under MCL 324.5901.
The lead opinion argues that the test cells are not
“facilities” because their primary purpose is to “test
engines to ensure that petitioners have properly de-
signed their engines to meet federal regulations so that
they can sell them to consumers.” Ante at 227. However,
this argument does not consider that without the fed-
erally mandated pollution regulations, petitioners
would not need or have test cells, but would continue to
operate without them. As petitioners point out, the test
cells do not benefit petitioners’ businesses because
conformance with EPA regulations increases expenses,
resulting in higher vehicle and engine prices and re-
duced sales. Thus, the test cells were not installed to
foster sales. Further, every business must comply with
federal pollution regulations and every business is try-
ing to sell something. Under the lead opinion’s inter-
pretation, it appears that any business that complies
with federal regulations is not entitled to a Michigan
tax exemption because it could always be said that the
business complied with federal regulations merely to
sell its product to consumers. Under the lead opinion’s
15
MCL 324.5901 does not require that pollution be reduced solely
within Michigan. As long as petitioners sell engines and vehicles in
Michigan, thereby reducing harmful pollution in Michigan, the fact that
they also sell engines and vehicles in other states, thereby reducing
pollution in those states as well, does not prevent them from qualifying
for the instant tax exemption.
254 482 MICH 220 [July
OPINION BY WEAVER, J.

interpretation, the only way a business would be en-

titled to a tax exemption is by philanthropically install-
ing pollution-control equipment.
The test cells perform a fundamental function in the
air-pollution-control process. They measure the levels
of pollution emitted by engines in order to assure
compliance with air-pollution regulations. If these lev-
els of pollution exceed limits, the engines are not
manufactured or sold, thereby curtailing excessive air
pollution. Without the test cells, petitioners would be
unable to ensure that their products are less polluting.
Because testing emissions is an essential component of
“controlling or disposing of air pollution,” and because
the test cells were installed specifically to test pollution,
the test cells can fairly be characterized as having been
installed for “the primary purpose of controlling or
disposing of air pollution” under MCL 324.5901. More-
over, under the lead opinion’s analysis, even compactors
or balers, which were specifically held to qualify as
“facilities” in Meijer, supra at 284, a decision with
which the lead opinion apparently agrees, ante at
233-234, would not qualify as such because their “pri-
mary purpose” is to compress or bale material, rather
than to “control” pollution.
Next, in order to qualify for tax exemptions under
part 59, petitioners’ test-cell facilities must meet the
requirements of MCL 324.5903. First, the test cells
must be designed and operated primarily for the con-
trol, capture, and removal of pollutants from the air. In
this case, the test cells were created for the sole purpose
of reducing air pollutants emitted by the petitioners’
vehicles and engines, so that is the cells’ primary
purpose.
As discussed earlier, the test cells control air pollut-
ants directly by regulating the emissions output, and
2008] DAIMLERCHRYSLER CORP V STATE TAX COMM 255
OPINION BY WEAVER, J.

indirectly by curbing the levels of pollutants released

into the air in the first place. The test cells also capture
and remove pollutants from the atmosphere. An ordi-
nary meaning of “capture” is “to gain control of or exert
influence over.”16 Again, by regulating and curbing
emissions, the test cells ensure that pollutants that
would otherwise have been released into the atmo-
sphere are never produced in the first place and thus
control pollutants. An ordinary meaning of “remove” is
“to move or shift from a place or position; to eliminate;
do away with or put an end to.”17 The test cells
“eliminate” or “put an end to” air pollutants by pre-
venting the pollutants from being created in the first
place; were it not for the test cells, the abated pollutants
would be in the atmosphere. Thus, the test cells operate
primarily for the control, capture, and removal of air
pollutants from the air.
Next, the test cells must be suitable and reasonably
adequate for the purpose of reducing air pollutants and
must also meet the intent and purposes of part 55 of
NREPA to qualify for tax exemptions. “The suitability
and adequacy . . . can be, and are, measured and tested
through non-empirical studies based on accepted scien-
tific principles and sound analysis. . . . [T]he resolution
of this question is particularly well-suited to the exper-
tise of the administrative agencies charged with assess-
ing the technical suitability and adequacy of facilities
for which exemption is sought.”18 It is undisputed that
the test cells function to help petitioners reduce and
regulate the air pollutants that their vehicles and
engines ultimately emit in order to meet federal stan-
16
Random House Webster’s College Dictionary (1997).
17
Id.
18
Covert Twp, 407 Mich at 582.
256 482 MICH 220 [July
OPINION BY WEAVER, J.

dards. As a result, the test cells are suitable and

reasonably adequate for the purpose of reducing nox-
ious air pollutants.
The purpose of part 55, by its own terms, is “to
provide additional and cumulative remedies to prevent
and abate air pollution.” The test cells, by ensuring that
vehicle and engine emissions are clean enough to pass
federal emissions standards, are designed to prevent
and abate air pollution. Although the test cells were
installed to ensure compliance with federal emissions
regulations, they nonetheless accomplish the purpose of
part 55—to prevent and abate air pollution. The test
cells meet the intent and purposes of part 55 of NREPA
because the test cells function to prevent and abate
noxious air pollutants.19
Petitioners’ test-cell facilities qualify for tax exemp-
tions under part 59 because they meet the definition of
“facility” in MCL 324.5901 and, under MCL 324.5903,
are “designed and operated primarily for the control,
capture, and removal of pollutants from the air,” are
“suitable” or “reasonably adequate” at abating air
pollution, and “meet the intent and purposes of part
55.”
The lead opinion argues that the test cells do not
meet the requirements of MCL 324.5903 because they
do not actually remove, control, and capture pollution
caused by the operation of petitioners’ businesses. Ante
at 228-229. I disagree. The statute does not require that
the exempt equipment itself physically remove air pol-
19
Covert Twp agreed with the STC’s holding that the intent and
purposes of the predecessor to part 55 “ ‘are served by pollution control
facilities constructed within the State of Michigan whether required by
reason of federal or state regulation. . . . It is the fact that pollution
control is provided that is important and not whether that pollution
control is provided in response to state or federal regulation.’ ” Id. at 579
(emphasis in original).
2008] DAIMLERCHRYSLER CORP V STATE TAX COMM 257
OPINION BY WEAVER, J.

lutants; rather, it merely requires that it be intended

and operated primarily for that purpose. Moreover, the
statute does not require that the pollution removed by
the exempt equipment be that created by the operation
of petitioners’ businesses; rather, the statute only refers
to air pollution generally, without specifying any par-
ticular source of pollution. As explained earlier, the test
cells here were intended primarily for, and functioned
as, integral parts of a pollution-control process designed
to regulate and curb air pollution produced by petition-
ers’ engines and vehicles. Therefore, the test cells were
“designed and operated primarily for the control, cap-
ture, and removal of pollutants from the air.”
The lead opinion also sua sponte injects the argu-
ment that in order for a facility to meet the intent and
purposes of part 55, it must regulate a “source” of
pollution as defined by MCL 324.5501(t). Ante at 230.
The lead opinion attempts to extrapolate the intent and
purposes of “the whole of part 55,” ante at 230 n 24, by
putting together bits and pieces of part 55. This method
is flawed. MCL 324.5540 clearly and unambiguously
states the purpose of part 55:
It is the purpose of this part to provide additional and
cumulative remedies to prevent and abate air pollution.
This part does not abridge or alter rights of action or
remedies now or hereafter existing. This part or anything
done by virtue of this part shall not be construed as
estopping persons from the exercise of their respective
rights to suppress nuisances or to prevent or abate air
pollution.

We give this language its plain meaning and enforce it

as written. Ayar v Foodland Distributors, 472 Mich 713,
715; 698 NW2d 875 (2005). The title and declared
purpose of part 55 refer to air-pollution control gener-
ally. The lead opinion wrongly argues that the intent
258 482 MICH 220 [July
OPINION BY WEAVER, J.

and purposes of part 55 are not to prevent and abate air

pollution generally, but instead to provide remedies in
addition to private or citizen suits related to pollution
control. Under the lead opinion’s faulty interpretation
of the intent of part 55, only facilities that provide
“additional remedies” would be eligible for a tax exemp-
tion under MCL 324.5903. The lead opinion fails to
explain how pollution-control facilities other than the
test cells can provide “additional remedies” that the
test cells cannot.
Moreover, although part 55 mainly deals with sta-
tionary sources, this fact is not dispositive because part
55 also refers to nonstationary sources used for trans-
portation.20 The lead opinion discusses part 55’s defini-
tion of “source” in a vacuum, while ignoring the other
defined terms in part 55. For example, part 55 also
governs “process equipment,” which it defines as “all
equipment, devices, and auxiliary components, includ-
ing air pollution control equipment, stacks, and other
emission points, used in a process.” MCL 324.5501(q)
(emphasis added). Part 55 defines “air pollution control
equipment” as “any method, process, or equipment that
removes, reduces, or renders less noxious air contami-
nants discharged into the atmosphere.” MCL
324.5501(c). Test cells arguably qualify as “air pollution
control equipment” because they ensure that vehicles
20
See, e.g., MCL 324.5501(b) (“With respect to any mode of transporta-
tion, nothing in this part or in the rules promulgated under this part shall be
inconsistent with the federal regulations, emission limits . . . .”); MCL
324.5513 (“Notwithstanding any other provision of this part or the rules
promulgated under this part, car ferries having the capacity to carry more
than 110 motor vehicles and coal-fueled trains used in connection with
tourism or an historical museum or carrying works of art or items of
historical interest are not subject to regulation under this part.”); MCL
324.5512(1) (“The department shall promulgate rules for purposes of doing
all of the following: . . . (c) Controlling any mode of transportation that is
capable of causing or contributing to air pollution.”).
2008] DAIMLERCHRYSLER CORP V STATE TAX COMM 259
OPINION BY WEAVER, J.

and engines do not exceed federal emissions standards,

thus reducing air contaminants discharged into the
atmosphere. The important point, however, is that the
lead opinion identifies no language from part 55 or
elsewhere stating that the “intent and purposes” of part
55 are to regulate pollution exclusively from “sources.”
Even if the lead opinion were correct that part 55
exclusively governs “sources,” this would not preclude
the test cells from meeting the intent and purposes of
part 55. The lead opinion neglects to quote the following
part of the definition of “source” in part 55: “A source
includes all the processes and process equipment under
common control that are located within a contiguous
area, or a smaller group of processes and process
equipment as requested by the owner or operator of the
source, if in accordance with the clean air act.” MCL
324.5501(t) (emphasis added). As discussed earlier, be-
cause a test cell qualifies as “air pollution control
equipment,” it also qualifies as “process equipment,”
and accordingly as a “source” as defined by part 55.
The lead opinion’s argument that part 55 is not
intended to reduce motor-vehicle emissions because
those emissions are covered by parts 61, 63, and 65 is
misplaced. Ante at 232. Part 61 is not applicable because
it merely prohibits marine vessels from blowing flues
under certain conditions. Parts 63 and 65 include pro-
cedures for requiring certain motor vehicles in west and
southeast Michigan that are more than one year old to
be periodically inspected for emissions and obtain a
certificate of compliance that would be necessary for
registration renewal. Parts 63 and 65 do not include
emissions standards for motor-vehicle engines during
the design, manufacture, and sale stages, but only
ensure that certain vehicles, which satisfy emissions
standards when initially purchased, maintain a mini-
260 482 MICH 220 [July
OPINION BY WEAVER, J.

mum level of emissions after one year on the road.

Further, parts 63 and 65 do not currently even regulate
motor-vehicle emissions in west and southeast Michi-
gan because those parts of the state have apparently
attained the national ambient air quality standards for
ozone. See MCL 324.6306(2); MCL 324.6507(2). In sum,
parts 61, 63, and 65 in no way detract from the intent
and purposes of part 55, which are to generally prevent
and abate air pollution, including by reducing that air
pollution from motor-vehicle engines by regulating
their design and manufacture before sale.
The lead opinion also ignores the provision that a
facility qualifies for a tax exemption only if it “meets
the intent and purposes of part 55 and rules promul-
gated under that part . . . .” MCL 324.5903 (emphasis
added). Reading the “intent and purposes” language in
context with the “rules promulgated” language21 makes
it clear that one of the intents and purposes of part 55
is to reduce pollution from motor vehicles. Part 55
expressly provides that “[t]he department shall promul-
gate rules for the purpose of doing all of the follow-
ing: . . . (c) Controlling any mode of transportation that
is capable of causing or contributing to air pollution.”
MCL 324.5512(1)(c) (emphasis added). This provision
supports the conclusion that the intent of part 55 is not
confined to the reduction of pollution from stationary
sources. Thus, the test cells both meet the intent and
purposes of part 55 and comply with the rules promul-
gated under part 55 governing pollution created by
motor vehicles.
21
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.’ ” Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d
119 (1999), quoting Bailey v United States, 516 US 137, 145; 116 S Ct
501; 133 L Ed 2d 472 (1995).
2008] DAIMLERCHRYSLER CORP V STATE TAX COMM 261
OPINION BY WEAVER, J.

Moreover, the lead opinion errs by stating that our

interpretation renders part of MCL 324.5903 “nugatory
or mere surplusage.” Ante at 230. MCL 324.5903 re-
quires that the “facility” be “designed and operated
primarily for the control, capture, and removal of
pollutants from the air, and [be] suitable, reasonably
adequate, and meet[] the intent and purposes of part
55,” which are “to prevent and abate air pollution,”
MCL 324.5540. The lead opinion argues that if “the
‘intent and purposes’ of part 55 are simply the reduc-
tion of air pollution, then [the second requirement of
MCL 324.5903, that the facility meet this purpose,]
adds nothing to the first requirement [of MCL
324.5903, that the facility control, capture, and remove
pollutants from the air].” Ante at 230 n 23. I respect-
fully disagree. The second requirement indicates the
purpose of the “facility,” i.e., “to prevent and abate air
pollution,” while the first requirement describes the
means by which this purpose is to be achieved, i.e., by
“control[ling], captur[ing], and remov[ing] pollutants
from the air.” Thus, this interpretation does not render
any part of this statute “nugatory or mere surplusage.”

B. DETROIT DIESEL’S EQUINOX LINE FACILITY

I concur with the lead opinion’s holding that Detroit

Diesel’s Equinox Line facility does not qualify for tax
exemptions under part 59 because the primary purpose
of the Equinox Line is to produce engines, not to control
or dispose of air pollution. In order to qualify for the tax
exemption, the Equinox Line must meet the definition
of “facility” under MCL 324.5901. MCL 324.5901 de-
fines “facility,” in pertinent part, as follows:
[M]achinery, equipment, structures, or any part or ac-
cessories of machinery, equipment, or structures, installed
or acquired for the primary purpose of controlling or
262 482 MICH 220 [July
OPINION BY WEAVER, J.

disposing of air pollution that if released would render the

air harmful or inimical to the public health or to property
within this state. Facility includes an incinerator equipped
with a pollution abatement device in effective operation.
Facility does not include an air conditioner, dust collector,
fan, or other similar facility for the benefit of personnel or
of a business. Facility also means the following, if the
installation was completed on or after July 23, 1965:

* * *

(c) A process change involving production equipment

made to satisfy the requirements of part 55 and rules
promulgated under that part. The maximum cost allowed
shall be 25% of the cost of the new process unit but shall
not exceed the cost of the conventional control equipment
applied on the basis of the new process production rate on
the preexisting process. [MCL 324.5901 (emphasis added).]

Thus, under MCL 324.5901, a “facility” may be either

“machinery, equipment, structures, or any part or ac-
cessories of machinery, equipment, or structures, in-
stalled or acquired for the primary purpose of control-
ling or disposing of air pollution that if released would
render the air harmful or inimical to the public health
or to property within this state” or “[a] process change
involving production equipment made to satisfy the
requirements of part 55 and rules promulgated under
that part.”
The Equinox Line does not satisfy the requirements
of the tax exemption under MCL 324.5901 for a “facil-
ity” because the Equinox Line was not designed for the
primary purpose of controlling or removing air pollut-
ants. Unlike the test cells, which were installed for the
primary and sole purpose of testing and controlling
exhaust emissions, the Equinox Line was installed for
the primary purpose of manufacturing engines. Al-
though the Equinox Line assists in controlling and
2008] DAIMLERCHRYSLER CORP V STATE TAX COMM 263
OPINION BY WEAVER, J.

disposing of air pollution by manufacturing less-

polluting engines that meet EPA standards, this pur-
pose is secondary. Instead, the primary purpose of the
line remains manufacturing engines for sale. Just be-
cause a manufacturing facility is altered or built to
assure compliance with environmental laws does not
mean that its primary purpose of manufacturing is
transformed into a new primary purpose of controlling
air pollution. The latter purpose remains secondary.22
Therefore, because, unlike the test cells, the Equinox
Line was not installed primarily to control or dispose of
air pollution, I concur with the lead opinion’s holding
that Detroit Diesel’s Equinox Line is not a facility
under MCL 324.5901. As a result, the Equinox Line
does not qualify for tax exemptions under part 59.23
Although the lead opinion does not address this
argument, Detroit Diesel’s argument that the Equinox
Line is a “facility” because it is “[a] process[24] change
involving production equipment made to satisfy the
22
To further illustrate, we offer the following hypothetical situation: if
a manufacturing plant builds a new office building for pollution-control
engineers charged with controlling and disposing of air pollution released
by the plant and its products, the office building would not qualify as a
“facility” under MCL 324.5901. That is so because the primary purpose
of the office building is to provide offices for employees, not to control or
reduce pollution. The fact that the office building provides necessary
accommodations for pollution-control engineers, and, therefore, indi-
rectly or secondarily aims at controlling air pollution, does not transform
its primary purpose.
23
Detroit Diesel also is not entitled to a tax exemption because the
Equinox Line does not satisfy MCL 324.5903, which mandates that a
“facility is designed and operated primarily for the control, capture, and
removal of pollutants from the air” in order to qualify for a tax
exemption. The Equinox Line was designed for the primary purpose of
manufacturing engines for sale, not for the purpose of abating pollution.
24
Part 55 defines “process” as “an action, operation, or a series of
actions or operations at a source that emits or has the potential to emit
an air contaminant.” MCL 324.5501(p). Part 55 defines “process equip-
264 482 MICH 220 [July
OPINION BY WEAVER, J.

requirements of part 55 and rules promulgated under

that part” is not valid.25 The stated purpose of part 55 is
to prevent and abate air pollution.26 Detroit Diesel did
not install the Equinox Line specifically to meet the
requirements of part 55, but rather installed the Equi-
nox Line to manufacture engines that comply with EPA
requirements. That the installation of the Equinox Line
furthers the purpose of part 55 does not mean that it
was done to satisfy the requirements of part 55. As a
result, the Equinox Line is not a “facility” under MCL
324.5901 because it is not “[a] process change involving
production equipment made to satisfy the requirements
of part 55 and rules promulgated under that part.”
Detroit Diesel’s Equinox Line does not qualify for tax
exemptions because the Equinox Line is neither “ma-
chinery, equipment, structures, or any part or accesso-
ries of machinery, equipment, or structures, installed or
acquired for the primary purpose of controlling or
disposing of air pollution that if released would render
the air harmful or inimical to the public health or to
property within this state” nor “[a] process change
involving production equipment made to satisfy the
requirements of part 55 and rules promulgated under
that part.” As a result, the Equinox Line is not a facility
under MCL 324.5901 and does not qualify for a tax
exemption.

IV. DUE PROCESS

I do not find Detroit Diesel’s due-process argument

persuasive. Detroit Diesel argues that the STC’s hear-
ment” as “all equipment, devices, and auxiliary components, including
air pollution control equipment, stacks, and other emission points, used
in a process.” MCL 324.5501(q).
25
MCL 324.5901(c).
26
MCL 324.5540.
2008] DAIMLERCHRYSLER CORP V STATE TAX COMM 265
OPINION BY WEAVER, J.

ing process violated due process because the STC an-

nounced at the beginning of the hearing: “It is the position
of the State Tax Commission after consultation with legal
counsel that it has neither the authority nor the technical
expertise to override a determination by the DEQ in
regards to whether particular assets qualify for an air
pollution control exemption.” Detroit Diesel argues that
the STC, by abdicating its role as a true decision maker,
deprived Detroit Diesel of a meaningful hearing.
Generally, due process in civil cases requires notice of
the nature of the proceedings and an opportunity to be
heard in a meaningful time and manner by an impartial
decisionmaker. Because the collection of a tax constitutes a
deprivation of property, a state must provide sufficient
procedural safeguards to satisfy due process requirements.
But states are afforded great flexibility in satisfying the
requirements of due process in the field of taxation. Due
process is satisfied when a taxpayer has “a fair opportunity
to challenge the accuracy and legal validity of their tax
obligation and a clear and certain remedy for any errone-
ous or unlawful tax collection to ensure that the opportu-
nity to contest the tax is a meaningful one.[27]

Here, part 59 provides that an applicant for a tax

exemption is entitled to a hearing:
Before issuing a certificate, the state tax commission
shall seek approval of the department and give notice in
writing by certified mail to the department of treasury and
to the assessor of the taxing unit in which the facility is
located or to be located, and shall afford to the applicant
and the assessor an opportunity for a hearing.[28]

Under MCL 324.5902(1), a petitioner sends an appli-

cation for a tax-exemption certificate to the STC. MCL
27
By Lo Oil Co v Dep’t of Treasury, 267 Mich App 19, 29; 703 NW2d 822
(2005) (citations and quotation marks omitted).
28
MCL 324.5902(2) (emphasis added).
266 482 MICH 220 [July
OPINION BY WEAVER, J.

324.5902(2) requires the STC to both allow the appli-

cant an opportunity for a hearing and forward the
application to the DEQ for approval. If the hearing
concludes before the DEQ makes a determination, the
STC must then refer the matter to the DEQ for consid-
eration of factual developments at the hearing and to
seek approval of the tax certificate. If the hearing
concludes after the DEQ makes a determination, as in
the instant case, the STC may grant or deny the
certificate on the basis of the original DEQ determina-
tion and the developments at the hearing, or refer the
matter again to the DEQ for consideration of any new
information developed at the hearing. The DEQ, not the
STC, has the authority and expertise to determine
whether the facility is entitled to a tax exemption under
part 59.
MCL 324.5903 provides, in pertinent part:
If the department finds that the facility is designed and
operated primarily for the control, capture, and removal of
pollutants from the air, and is suitable, reasonably ad-
equate, and meets the intent and purposes of part 55 and
rules promulgated under that part, the department shall
notify the state tax commission, which shall issue a certifi-
cate. [Emphasis added.]

MCL 324.5908 provides that although the STC may

adopt rules considered necessary for administration of
part 59 of NREPA, “[t]hese rules shall not abridge the
authority of the department to determine whether or
not air pollution control exists within the meaning of
this part.” Thus, although the STC is the agency that
actually issues the tax-exemption certificate, it must
defer to the DEQ’s determination whether a petitioner
is entitled to a tax exemption under part 59.
Further, even assuming that the STC can grant a
tax-exemption certificate without the DEQ’s approval,
2008] DAIMLERCHRYSLER CORP V STATE TAX COMM 267
OPINION BY WEAVER, J.

the hearing conducted by the STC in this case complied

with due process. As required by MCL 324.5902(2), the
STC forwarded Detroit Diesel’s application for tax-
exemption certificates to the DEQ for approval. After
receiving the DEQ’s determination that Detroit Diesel
was not entitled to the tax exemptions, the STC af-
forded Detroit Diesel an opportunity for a hearing. The
hearing at the STC was not meaningless. The STC gave
Detroit Diesel a full hearing in which it was allowed to
present evidence and argue that the STC was not bound
by the DEQ findings. Detroit Diesel identifies no evi-
dence or legal argument that it was prevented from
submitting. Although the STC stated at the outset of
the hearing that it lacked the authority to override a
DEQ determination regarding an air-pollution-control
tax exemption, the STC did not conduct the hearing
merely to rubber-stamp the DEQ’s earlier decision.
Rather, the STC conducted the hearing to gather addi-
tional information and forward this information to the
DEQ for further consideration and another determina-
tion. Unfortunately for Detroit Diesel, the DEQ again
decided that Detroit Diesel was not entitled to the tax
exemptions. But because the DEQ considered the infor-
mation developed at the hearing to determine whether
to change its determination, the hearing was not mean-
ingless. Thus, Detroit Diesel was afforded due process
during the STC proceedings.

V. CONCLUSION

In conclusion, I dissent from the lead opinion and

would affirm the Court of Appeals. I would hold that
petitioners’ test-cell facilities qualify for tax exemptions
under part 59 because they meet the definition of
“facility” in MCL 324.5901 and, under MCL 324.5903,
are “designed and operated primarily for the control,
268 482 MICH 220 [July
OPINION BY WEAVER, J.

capture, and removal of pollutants from the air,” are

“suitable” or “reasonably adequate” at abating air
pollution, and “meet the intent and purposes of part
55.” I concur with the lead opinion’s holding that
Detroit Diesel’s Equinox Line does not qualify for tax
exemptions under part 59 because the Equinox Line is
not a “facility” under MCL 324.5901. Lastly, I would
hold that Detroit Diesel was not deprived of due process
during the STC proceedings.

CORRIGAN and MARKMAN, JJ., concurred with WEAVER,

J.
2008] BRACKETT V FOCUS HOPE, INC 269

BRACKETT v FOCUS HOPE, INC

Docket No. 135375. Argued May 7, 2008. Decided July 30, 2008.
Patricia D. Brackett sought workers’ compensation benefits under
the Worker’s Disability Compensation Act, MCL 418.101 et seq.,
for mental disabilities she allegedly suffered as the result of the
response by Eleanor Josaitis, the co-founder and chief executive
officer of defendant Focus Hope, Inc., to Brackett’s violation of a
work rule. Brackett had informed her immediate supervisor, David
Lepper, that she would not be attending Focus Hope’s annual
Martin Luther King, Jr., birthday celebration, a mandatory event
for Focus Hope employees, because Brackett thought that it was
inappropriate to hold the event in Dearborn rather than Detroit,
where it had been held in the past. Lepper told Brackett that she
would be docked one day’s pay as a result. Brackett did not inform
Josaitis of her decision before the celebration, nor did she provide
an excuse for her absence to the human resources department, as
her employer required. After Brackett missed the event, Josaitis
docked plaintiff for two days’ pay, reduced her job responsibilities,
and verbally reprimanded her. Brackett left work and did not
return, claiming that she was traumatized by these events. The
workers’ compensation magistrate found that Brackett’s refusal to
attend the event was willful, but ruled that Brackett was never-
theless entitled to benefits because she had suffered a mental
disability as a result of actual employment events, and further
ruled that Brackett’s perception of those events was reasonable.
The magistrate rejected the defense argument that Brackett’s
misconduct barred her recovery of benefits under MCL 418.305
and Daniel v Dep’t of Corrections, 468 Mich 34 (2003). The
Workers’ Compensation Appellate Commission (WCAC) affirmed,
and Focus Hope and its insurer, defendant Accident Fund Insur-
ance Company of America, filed for leave to appeal. The Court of
Appeals initially denied leave for lack of merit, but the Supreme
Court remanded the case to the Court of Appeals for consideration
as on leave granted and in light of Daniel. 477 Mich 922 (2006). On
remand, the Court of Appeals, KELLY, P.J., and METER and GLEICHER,
JJ., affirmed, holding that there was ample evidence in the record
to support the WCAC’s decision. Unpublished opinion per curiam
270 482 MICH 269 [July

of the Court of Appeals, issued October 23, 2007 (Docket No.

274078). The defendants sought leave to appeal in the Supreme
Court, and the Supreme Court ordered and heard oral argument
on whether to grant the application or take other peremptory
action. 480 Mich 1147 (2008).
In an opinion by Justice CORRIGAN, joined by Chief Justice
TAYLOR and Justices YOUNG and MARKMAN, the Supreme Court held:
The plaintiff is not entitled to workers’ compensation benefits
because her injury arose out of her refusal to attend an employer-
mandated event, which constitutes intentional and willful miscon-
duct.
1. Conduct is “intentional and wilful misconduct” under MCL
418.305 if it is improper and done on purpose despite the knowl-
edge that it is against the rules.
2. The text of MCL 418.305 does not create a sliding scale of
moral turpitude that tribunals may assess in deciding whether to
apply the statutory exclusion. Rather, the statute simply excludes
benefits where the injuries arose by reason of the employee’s
intentional and willful misconduct.
Reversed.
Justice WEAVER, joined by Justices CAVANAGH and KELLY, dis-
senting, would affirm the decisions of the workers’ compensation
magistrate, the WCAC, and the Court of Appeals because the
misconduct at issue here was not equivalent to the sexual harass-
ment in Daniel, and would have granted leave to appeal before
ruling on this important question.

WORKERS’ COMPENSATION — INTENTIONAL AND WILLFUL MISCONDUCT OF EMPLOY-

EES.

The statutory provision prohibiting an employee from receiving

workers’ compensation for an injury caused by the employee’s
intentional and willful misconduct applies to conduct that is
improper and done purposely despite the knowledge that it is
against the rules, regardless of the degree of moral turpitude
associated with the misconduct (MCL 418.305).

Charters, Heck, O’Donnell & Petrulis, P.C. (by Mar-

garet A. O’Donnell), for the plaintiff.

Lacey & Jones (by Gerald M. Marcinkoski) for the

defendants.
Amicus Curiae:

Daryl Royal for the Michigan Association for Justice.

2008] BRACKETT V FOCUS HOPE, INC 271
OPINION OF THE COURT

CORRIGAN, J. This case requires us to consider whether

plaintiff’s refusal to attend an employer-mandated event
constituted “intentional and wilful misconduct” under
MCL 418.305, thereby barring her recovery of benefits
under the Worker’s Disability Compensation Act, MCL
418.101 et seq. The magistrate found that plaintiff will-
fully refused to attend the event, despite having been
informed that the event was essential in promoting the
employer’s goal of racial reconciliation. In light of that
finding, we conclude that plaintiff’s refusal to attend the
mandatory event constituted intentional and willful mis-
conduct, thereby barring workers’ compensation benefits
under MCL 418.305. We thus reverse the judgment of the
Court of Appeals.

I. FACTS AND PROCEDURAL HISTORY

Defendant Focus Hope, Inc., hired plaintiff as a

full-time employee in January 2001. Defendant’s co-
founder and chief executive officer, Eleanor Josaitis,
told plaintiff that the mission of Focus Hope is to seek
racial equality and reconciliation. Josaitis further ex-
plained that the most important function of the year is
the Martin Luther King, Jr., birthday celebration, and
that each employee was expected to attend the event. If
the employee had a legitimate excuse for not attending,
the employee was to inform the human resources de-
partment.
The King Day event was ordinarily held in Detroit,
but in 2002, Josaitis decided to hold it in Dearborn.
Plaintiff told her immediate supervisor, David Lepper,
that she would not attend the event in Dearborn
because she and her family had bad experiences there as
African-Americans and because she believed the history
of race relations in Dearborn was not in keeping with
Dr. King’s aspirations. Lepper advised plaintiff that she
272 482 MICH 269 [July
OPINION OF THE COURT

would be docked one day’s pay for refusing to attend.

Plaintiff did not tell Josaitis or the human resources
department of her decision not to attend.
After the King Day event, Josaitis met with plaintiff,
Lepper, and a human resources manager. Josaitis asked
plaintiff why she had not attended the King Day cel-
ebration. Plaintiff explained that she believed the site of
the event in Dearborn was not appropriate. Josaitis
responded that plaintiff had been informed when she
was hired that attendance at the King Day event was
mandatory, and that the purpose of Focus Hope was to
promote acceptance and tolerance. Josaitis advised
plaintiff that she would be docked for two days’ pay.
Subsequently, some of plaintiff’s job responsibilities
were taken away.
Plaintiff and Josaitis then exchanged memos explain-
ing their respective positions. Josaitis wrote in her
memo that plaintiff’s failure to attend the King Day
event had reduced her confidence in plaintiff’s commit-
ment to Focus Hope’s goals. Josaitis explained:
The purpose of the Civil Rights movement was to
change the negative perception and prejudice of any indi-
vidual towards another, based on race, gender, religion,
color, or creed through the use of non-violent action. Father
[William] Cunningham and I started Focus: HOPE based
on this same philosophy that Dr. King gave his life for. Just
as I stated to you in your orientation, I expect Every Focus:
HOPE Colleague to abide by these same principles.
To harbor such feelings of the past without thinking
how our MLK mandatory staff development day helps to
move Focus: HOPE into the future, reduces my confidence
in your commitment to help us fulfill our mission state-
ment.

In her memo, plaintiff admitted that she understood

that attendance at the King Day event was mandatory,
but stated that she “felt offended by the celebration
2008] BRACKETT V FOCUS HOPE, INC 273
OPINION OF THE COURT

being in a city that I do not frequent and that I would be

extremely uncomfortable celebrating Martin Luther
King’s birthday [in].” She added, “I did not attend the
celebration and expressed [in the meeting] that I spent
it with my family and with no regrets accepting the day
off with no pay!” Plaintiff then wrote, “I do not accept
[Josaitis’s] judging and wrongfully degrading my char-
acter as a [sic] ‘untrustworthy person.’ ”
Plaintiff claims that a second meeting occurred in
which Josaitis allegedly reiterated her disappointment
in plaintiff, shook her finger in plaintiff’s face, and said
that plaintiff did not deserve to receive a paycheck from
Focus Hope. When plaintiff asked if she was being fired,
Josaitis shrugged her shoulders and let her out of the
office. Josaitis testified that she remained calm and that
she did not yell or threaten to fire her.
Plaintiff claimed that Josaitis’s alleged comments
traumatized her. Plaintiff left work and never returned.
Her psychologist opined that plaintiff suffered a major
depression precipitated by work events and that she is
unable to work. A defense psychiatrist found no evi-
dence of a continuing mental disability and opined that
plaintiff could return to work without restrictions.
The workers’ compensation magistrate credited the
testimony of plaintiff and her psychologist. The magis-
trate found that plaintiff’s mental disability arose from
actual employment events and that plaintiff’s percep-
tion of those events was reasonable.1 Although the
magistrate found that plaintiff had willfully refused to
attend the King Day event, and that her disability had
resulted from that willful refusal, the magistrate none-
1
The magistrate reached this conclusion in spite of his “personal” view
that “the reaction of Ms. Brackett to these events and her reasonable
perceptions thereof (i.e., experiencing a major depressive episode causing
disability for more than two years) is excessive bordering on outlandish.”
274 482 MICH 269 [July
OPINION OF THE COURT

theless rejected the defense argument that plaintiff’s

misconduct barred her recovery of benefits under MCL
418.305. The magistrate stated that “[t]he kind of
‘misconduct’ plaintiff engaged in here is a far cry from
the alleged misconduct [i.e., sexual harassment] alleged
in Daniel [v Dep’t of Corrections, 468 Mich 34; 658
NW2d 144 (2003)], and for that reason I decline to
follow” Daniel.
The Workers’ Compensation Appellate Commission
(WCAC) affirmed. It chastised defendant as “insensi-
tive” for failing to recognize that plaintiff’s agreement
to attend King Day celebrations would not require her
to attend such events in Dearborn. Thus, the WCAC
found “absolutely no merit to defendants’ claim that
plaintiff’s behavior should disqualify her for benefits
pursuant to the doctrine set forth in” Daniel.
The Court of Appeals denied leave to appeal for lack
of merit,2 but this Court remanded the case to the Court
of Appeals for consideration as on leave granted, in light
of Daniel.3 On remand, the Court of Appeals affirmed
the WCAC decision.4 The Court of Appeals determined
that sufficient evidence supported the finding that
plaintiff’s conduct was a “far cry” from the misconduct
in Daniel. Citing Andrews v Gen Motors Corp, 98 Mich
App 556; 298 NW2d 309 (1980), the Court of Appeals
concluded that plaintiff’s conduct fell within the realm
“in which a claimant perhaps violates a workplace rule
or expectation but is not precluded by § 305 from
recovering benefits for a resulting injury.”5
2
Unpublished order of the Court of Appeals, entered April 28, 2006
(Docket No. 266018).
3
477 Mich 922 (2006).
4
Unpublished opinion per curiam of the Court of Appeals, issued
October 23, 2007 (Docket No. 274078).
5
Id. at 2.
2008] BRACKETT V FOCUS HOPE, INC 275
OPINION OF THE COURT

Defendants again applied for leave to appeal to this

Court. We scheduled the case for oral argument on the
application, directing the parties to address “whether
plaintiff’s injury resulted from her willful misconduct.”6

II. STANDARD OF REVIEW

In the absence of fraud, this Court must consider the

WCAC’s findings of fact conclusive if any competent
evidence in the record supports them. MCL
418.861a(14); Mudel v Great Atlantic & Pacific Tea Co,
462 Mich 691, 698; 614 NW2d 607 (2000). We review de
novo questions of law, including statutory interpreta-
tion. Karaczewski v Farbman Stein & Co, 478 Mich 28,
32; 732 NW2d 56 (2007); Daniel, supra at 40.

III. ANALYSIS

MCL 418.305 provides: “If the employee is injured by

reason of his intentional and wilful misconduct, he shall
not receive compensation under the provisions of this
act.” “This provision has remained essentially un-
changed since it was first adopted by the Legislature in
1912 as part of the original workers’ compensation
legislation. See 1912 (1st Ex Sess) PA 10, part 2, § 2.”
Daniel, supra at 41. The question here is whether
plaintiff’s refusal to attend an employer-mandated
event, a refusal that the magistrate specifically found to
be “willful,” constitutes “intentional and wilful miscon-
duct” that bars recovery of workers’ compensation
benefits.
Our fundamental obligation when interpreting a
statute is to discern the legislative intent that may
reasonably be inferred from the words expressed in the
statute. Koontz v Ameritech Services, Inc, 466 Mich 304,
6
480 Mich 1147-1148 (2008).
276 482 MICH 269 [July
OPINION OF THE COURT

312; 645 NW2d 34 (2002). An undefined statutory term

must be accorded its plain and ordinary meaning. MCL
8.3a; People v Thompson, 477 Mich 146, 151; 730 NW2d
708 (2007). A lay dictionary may be consulted to define a
common word or phrase that lacks a unique legal mean-
ing. Id. at 151-152. A legal term of art, however, must be
construed in accordance with its peculiar and appropriate
legal meaning. MCL 8.3a; Mayberry v Gen Orthopedics,
PC, 474 Mich 1, 7; 704 NW2d 69 (2005). In this case, we
need not determine whether the statutory phrase “inten-
tional and wilful misconduct” is a common phrase or a
legal term of art because the terms in the phrase are
similarly defined in both a lay dictionary and a legal
dictionary.
“Intentional” is defined as “done with intention or on
purpose.” Random House Webster’s College Dictionary
(1991). “Willful” is defined as “deliberate, voluntary, or
intentional.” Id. “Willful implies opposition to those
whose wishes, suggestions, or commands ought to be
respected or obeyed: a willful son who ignored his parents’
advice.” Id. “ ‘ “[W]illful” means action taken knowledge-
ably by one subject to the statutory provisions in disregard
of the action’s legality. No showing of malicious intent is
necessary. A conscious, intentional, deliberate, voluntary
decision properly is described as willful, “regardless of
venial motive.” ’ ” People v Hegedus, 432 Mich 598, 605 n
7; 443 NW2d 127 (1989) (citations omitted). “Misconduct”
is defined as “improper behavior.” Random House Web-
ster’s College Dictionary (1991). Therefore, conduct is
“intentional and wilful misconduct” if it is “improper”
and done “on purpose” despite the knowledge that it is
against the rules.
Likewise, Black’s Law Dictionary (7th ed) defines
“intentional” as “[d]one with the aim of carrying out
the act,” and it defines “willful misconduct of em-
2008] BRACKETT V FOCUS HOPE, INC 277
OPINION OF THE COURT

ployee” as “[t]he deliberate disregard by an employee of

the employer’s interests, including its work rules and
standards of conduct, justifying a denial of unemploy-
ment compensation if the employee is terminated for
the misconduct.”
And, indeed, in the past, our Court has approached
the definition of “willful misconduct” with this under-
standing. In Detwiler v Consumers Power Co, 252 Mich
79; 233 NW 350 (1930), this Court defined “willful
misconduct” as an employee’s “obstinate or perverse
opposition to the will of the employer.”
In Detwiler, the plaintiff’s husband was killed in a
freight elevator accident at work. Another employee
had “cautioned” the decedent against using the elevator
because it was dangerous, but the employer had no rule
barring its use. This Court rejected the employer’s
argument that the decedent’s use of the elevator con-
stituted intentional and willful misconduct:
Assuming, but not deciding, that wilful misconduct
might consist in wilful violation of a rule made for the
employee’s own safety or the safety of others, the record
shows no such rule. A rule, to be effective as such, must be
prescribed by a power having authority to make rules and
it must be enforced with diligence.
If it be conceded, for sake of argument, that the instruc-
tion or caution here was duly authorized, as contended by
the employer, still it appears that it was not enforced,
obedience was not required, and it is unavailing in respect
of wilful misconduct. It was well said in Haffemayer v.
United Keanograph Film Co., 1 Cal. Ind. Acc. Comm. Dec.
(No. 24, 1915) 58, as reported in 8 N.C.C.A. 891:
“To disregard the instructions of an employer, where
such instructions are given merely in the form of cautions,
and where repeated violations of such instructions are
known and permitted without penalty and without positive
insistence upon obedience, does not constitute such obsti-
nate or perverse opposition to the will of the employer as
amounts to wilful misconduct. To hold otherwise would be
278 482 MICH 269 [July
OPINION OF THE COURT

to open the door for employers to impose numbers of safety

rules upon their employees with a tacit understanding that
such rules need not, so far as the employers were concerned,
be regarded if the employees chose to do otherwise, but that
if an employee was injured while disobeying any such
instructions he should be deprived of compensation. An
employer can not be allowed to impose two standards of care
upon his employees, one for the ordinary conduct of his
business and the other as a test of liability under the
workmen’s compensation * * * act in case of accident.” [Id.
at 81-82 (emphasis added).]

The Detwiler Court’s adoption of the “obstinate and

perverse opposition to the will of the employer” definition
is useful in according meaning to the entire statutory
phrase “intentional and wilful misconduct.” Under this
standard, § 305 bars an employee from recovering benefits
for misconduct that is both (1) intentional, i.e., deliberate
or nonaccidental, and (2) willful, i.e., obstinately or per-
versely opposed to the employer’s will. An employer’s
work rule must be clearly established and consistently
enforced in order for the employee to understand the
mandatory nature of the rule and for its violation to
constitute intentional and willful misconduct. Detwiler,
supra at 81-82.
The Detwiler analysis is consistent with our recent
decision in Daniel. In Daniel, the Department of Cor-
rections suspended the plaintiff, a probation officer, for
sexually harassing female attorneys. After returning to
work, the plaintiff suffered a mental disability because
he felt harassed by his supervisor and the female
attorneys. This Court concluded that the plaintiff was
injured by reason of his intentional and willful miscon-
duct. Daniel, supra at 44. Further, this Court rejected
the Court of Appeals majority’s conclusion that the
misconduct did not rise to a sufficient level of moral
turpitude to be “ ‘intentional and wilful.’ ” Id. at 45.
Similarly, the facts found by the magistrate and the
WCAC in this case establish that plaintiff’s refusal to
2008] BRACKETT V FOCUS HOPE, INC 279
OPINION OF THE COURT

attend the King Day event constituted intentional and

willful misconduct. Attending this event was a manda-
tory requirement for Focus Hope employees. Josaitis
personally interviews every prospective employee and
impresses on them the necessity to attend the King Day
event. The magistrate specifically found that plaintiff’s
refusal to attend the event was willful. Plaintiff did not
challenge this finding, and the WCAC did not disturb it.
This finding is supported by evidence in the record.
Therefore, we must treat as conclusive the WCAC’s
finding that plaintiff’s refusal to attend was willful.
Mudel, supra. Plaintiff’s deliberate and categorical re-
fusal to attend this mandatory function constituted
insubordination.
In concluding that plaintiff’s misconduct was not
excluded by MCL 418.305, the Court of Appeals agreed
with the WCAC that, unlike the sexual harassment in
Daniel, plaintiff’s conduct perhaps violated a workplace
rule but was insufficiently serious to preclude benefits
under § 305. The Court of Appeals cited Andrews, in
which the Court of Appeals stated that misconduct
must involve some unspecified degree of “moral turpi-
tude” in order to bar recovery. The Andrews Court
relied on Crilly v Ballou, 353 Mich 303, 327; 91 NW2d
493 (1958), in which this Court asserted in dictum that
the statute excluded from coverage “acts of a degree of
moral turpitude,” equating intentional and willful mis-
conduct with acts of a “gross and reprehensible na-
ture.”
The dictum in Crilly essentially engrafts a “moral
turpitude” requirement onto § 305. The dictum is thus
inconsistent with the plain statutory language, Det-
wiler, and Daniel. The text of § 305 does not create a
sliding scale of “moral turpitude” that tribunals may
assess in deciding whether to apply the statutory exclu-
280 482 MICH 269 [July
OPINION OF THE COURT

sion. Rather, the statute simply excludes benefits where

the injuries arose by reason of the employee’s inten-
tional and willful misconduct. Moreover, this Court in
Daniel rejected the Court of Appeals majority’s conclu-
sion in that case that the misconduct did not rise to a
level of moral turpitude that was intentional and will-
ful. We held that the plaintiff’s repeated acts of sexual
harassment were voluntary and went beyond negli-
gence or gross negligence.
The same analysis applies here. Plaintiff willfully
refused to attend her employer’s most important func-
tion. She did so in the face of an express requirement
that she attend, and did so even though the location of
the event was an essential part of her employer’s overall
mission. Plaintiff’s refusal to follow her employer’s
clearly expressed rule constituted an “obstinate or
perverse opposition to the will of the employer.” She
was disciplined for this misconduct. As in Daniel, it is
undisputed that her mental disability flows directly
from the employer-imposed discipline for misconduct.

IV. RESPONSE TO THE DISSENT

The dissent contends that plaintiff was “selectively

singled out for harsh punishment” because approxi-
mately 50-60 other employees allegedly refused to at-
tend the event in Dearborn. But neither the magistrate
nor the WCAC found that plaintiff was singled out for
punishment, and the record does not support such a
finding. Plaintiff presented no evidence other than her
own vague, contradictory, and—by her own admission
—speculative testimony to suggest that other employ-
ees refused to attend the event but were not punished.
Plaintiff initially testified that “50 to 60” of her
colleagues “had adverse opinions about that particular
site.” She later claimed that “there was like 80 people.
2008] BRACKETT V FOCUS HOPE, INC 281
OPINION OF THE COURT

[Eighty to ninety] people or something that didn’t

attend. I forgot the people — the numbers, but there
was more than myself — then I was called by Human
Resources.” Still later, on cross-examination, plaintiff
contended that she “was the only person out of 80” to
be questioned about her failure to attend, then added,
“I think there was two of us.” When asked how she
knew this, plaintiff responded, “I guess it’s specula-
tion.” Plaintiff did not present testimony from or even
identify any of the other employees who allegedly
refused to attend.
Even if plaintiff had shown that other employees did
not attend the event, she offered no proof that any such
employees failed to provide a legitimate excuse to the
human resources department before the event, as de-
fendant required, and that those employees then went
unpunished despite their disobedience. Thus, the dis-
sent’s assertion that plaintiff was “singled out for harsh
punishment” is wholly unsupported in the record.
Next, the dissent contends that “the ‘harm’ that Ms.
Brackett suffered was not caused by the initial response
by her supervisor, but by the director’s harsh personal
censure of Ms. Brackett.” Post at 288. This hyperbolic
criticism of Ms. Josaitis has no basis in the record or in
the findings of the magistrate and the WCAC. The lower
tribunals simply did not find that Josaitis engaged in a
“harsh personal censure.” It is most regrettable that
our dissenting colleagues have chosen to lob these
unfounded accusations.
Moreover, the dissent’s unfounded accusations do not
reflect plaintiff’s documented, ongoing insubordination
in which she continued to oppose the mandatory atten-
dance at the King Day event. In her memo to Josaitis
following the initial meeting, plaintiff expressed no
remorse. On the contrary, plaintiff continued to insist
282 482 MICH 269 [July
OPINION OF THE COURT

that she should not be required to attend the event in

Dearborn because she “felt offended by the celebration
being in a city that I do not frequent” and in which she
“would be extremely uncomfortable celebrating Martin
Luther King’s birthday.” Plaintiff admitted that she
had “no regrets accepting the day off with no pay!” And
referring to Josaitis, plaintiff stated, “I do not accept
her judging and wrongfully degrading my character as a
[sic] ‘untrustworthy person.’ ” The dissent’s excessive
criticism of Josaitis thus appears quite shortsighted
where plaintiff (1) violated Focus Hope’s rule by refus-
ing to join the King Day celebration, (2) admitted her
knowledge that attendance was mandatory, and (3)
continued to express her lack of remorse for skipping
the event.
And as the dissenting justices invent unfounded
criticisms of the cofounder of Focus Hope, they fail to
give effect to the magistrate’s findings that plaintiff
“actually did willfully not attend the Defendant’s M L
King Day Celebration” and that “[s]he actually did
suffer disciplinary action on account thereof.” (Empha-
sis added.) The dissent’s effort to disconnect plaintiff’s
misconduct from her resulting disability is therefore
unavailing and contrary to the magistrate’s own find-
ings.
Next, the dissent endorses the Court of Appeals
assertion that plaintiff’s “pre-arranged non-
attendance” was not misconduct. Post at 290. But Focus
Hope required employees to provide a legitimate excuse
to the human resources department, and it is undis-
puted that plaintiff did not inform the department of
her absence before the event. Although plaintiff did
inform Lepper, her immediate supervisor, of her deci-
sion not to attend, plaintiff knew that she was violating
a rule because Lepper told her that she would be docked
2008] BRACKETT V FOCUS HOPE, INC 283
OPINION OF THE COURT

a day’s pay. The dissent does not explain how plaintiff’s

acceptance of a penalty for violating the rule excuses or
negates her violation of the rule, nor does the dissent
explain how the fact that plaintiff was ultimately
docked for two days’ pay rather than one negates the
existence of the rule. The rule existed and was violated
regardless whether plaintiff was docked for one day or
two days.
It is important to recall that plaintiff was not fired for
her refusal to attend the King Day event. Rather,
plaintiff claims that she remains indefinitely unable to
work because of a major depressive episode arising from
the events surrounding her punishment, including hav-
ing her pay docked for two days instead of one. We note
that the magistrate himself found plaintiff’s alleged
reaction to these events to be “excessive bordering on
outlandish.”
The dissent accuses the majority of concluding that
plaintiff’s misconduct in this case was “equivalent” to
the misconduct that occurred in Daniel. Post at 286,
289. But we have expressed no such view. A claimant’s
misconduct does not have to be “equivalent” to the
misconduct that occurred in Daniel in order to bar the
plaintiff from recovering workers’ compensation ben-
efits. Rather, under MCL 418.305, the plaintiff is barred
from recovering benefits if the misconduct was “inten-
tional and wilful.” The statute does not require equiva-
lence to the misconduct in Daniel.
The dissent states that we have “nonsensically”
concluded that an employee’s intentional and willful
misconduct bars workers’ compensation benefits “re-
gardless of whether the rule is controversial and
whether it is properly and uniformly enforced.” Post at
291. As we have explained above, however, there is no
evidence that Focus Hope did not properly or uniformly
284 482 MICH 269 [July
OPINION OF THE COURT

enforce its rule. Other than her own admitted specula-

tion, plaintiff presented no evidence that other employ-
ees failed to attend the event, failed to inform the
human resources department, and then went unpun-
ished for their misconduct.
Moreover, MCL 418.305 contains no exception that
would allow employees to intentionally and willfully
violate employer rules that a workers’ compensation
tribunal or appellate court later deems “controversial.”
The dissent has invented this exception out of whole
cloth. It is not clear on what authority the dissent would
permit tribunals or courts to find that an employer’s
rule is “controversial” and to then disregard the plain
language of MCL 418.305 on the basis of that finding.
Nor is it clear whether or how the dissent believes that
a tribunal or court would possess the institutional
capacity to decide on a principled basis what is or is not
“controversial.” And even if the Legislature had
adopted a “controversial” rule exception in MCL
418.305, the dissenting justices do not explain why they
find it “controversial” to celebrate Dr. King’s birthday
in a way that promotes Focus Hope’s goal of racial
reconciliation.
Finally, the dissent fundamentally distorts the na-
ture of Focus Hope’s rule by questioning whether
“there was a well-established work rule to hold the
event in Dearborn, as opposed to Detroit.” Post at 288.
But plaintiff concedes that when she was hired, she was
told by Josaitis that all employees were expected to
attend the King Day celebration, and that this celebra-
tion was the most important event of the year for Focus
Hope. Plaintiff accepted her position with full knowl-
edge that she was required to attend the event. In 2002,
Josaitis held the event in Dearborn to further Focus
Hope’s goals of racial reconciliation and healing past
2008] BRACKETT V FOCUS HOPE, INC 285
OPINION OF THE COURT

wounds. During her testimony, Josaitis quoted the

Focus Hope mission statement, which provides:
Recognizing the dignity and beauty of every person, we
pledge intelligent and practical action to overcome racism,
poverty and injustice. And to build a metropolitan commu-
nity where all people may live in freedom, harmony, trust
and affection. Black and white, yellow, brown and red from
Detroit and its suburbs of every economic status, national
origin and religious persuasion we join in this covenant.

Josaitis testified that “every single person that comes to

Focus Hope, the first question that they’re asked is do
you have any philosophical difference with that mission
statement. That mission statement is on the back of all
of our business cards, it hangs on every wall.”
Josaitis testified that the mission statement fit into
the King Day celebration because “Martin Luther King
was a man that was trying to build bridges. . . . So, on
Dr. King day we always came together to talk about the
history of civil rights and where we were going into the
future.” She further explained that “every single person
that comes to work for Focus Hope goes through a
two-hour orientation with me and then they go through
an orientation with the Human Resources Department
and every single person is told that it is mandatory and
why it is so important.” (Emphasis in original.) It is
undisputed that plaintiff went through this orientation.
Focus Hope’s mission statement articulates goals and
ideals that are not limited to the geographical bound-
aries of one city. Indeed, the mission statement ex-
pressly refers to “Detroit and its suburbs” and to the
“metropolitan community.” (Emphasis added.) Plaintiff
had full notice of the mission statement when she
agreed to work for Focus Hope, and the 2002 celebra-
tion was held in Dearborn to advance those goals.
286 482 MICH 269 [July
OPINION BY WEAVER, J.

Therefore, the dissent’s effort to confine Focus Hope’s

celebration of Dr. King’s birth to a Detroit-only venue is
wholly unconvincing.

V. CONCLUSION

For these reasons, we hold that plaintiff’s injury

arose out of her intentional and willful misconduct in
refusing to attend an employer-mandated event. We
reaffirm the holding in Daniel and reject the insertion
of a “moral turpitude” requirement into the text of
MCL 418.305. Accordingly, the judgment of the Court of
Appeals is reversed.

TAYLOR, C.J., and YOUNG and MARKMAN, JJ., concurred

with CORRIGAN, J.

WEAVER, J. (dissenting). I dissent from the decision of

the majority of four (Chief Justice TAYLOR and Justices
CORRIGAN, YOUNG, and MARKMAN) to reverse the judg-
ment of the Court of Appeals on the ground that the
plaintiff’s refusal to attend a mandatory employee
event constituted “intentional and wilful misconduct”
under MCL 418.305, thereby barring her recovery of
benefits under the Worker’s Disability Compensation
Act, MCL 418.101 et seq.
The majority of four, in reversing the decisions
reached by the magistrate, the Workers’ Compensation
Appellate Commission (WCAC), and the Court of Ap-
peals, has supplanted the very well-reasoned findings
reached by the aforementioned entities with its own
nonsensical conclusion that the “intentional and wilful
misconduct” engaged in by the plaintiff in this case was
equivalent to the “intentional and wilful misconduct”
that occurred in Daniel v Dep’t of Corrections, 468 Mich
34; 658 NW2d 144 (2003). Having authored Daniel, I
2008] BRACKETT V FOCUS HOPE, INC 287
OPINION BY WEAVER, J.

take issue with the majority’s unfounded conclusion

and instead agree that the “plaintiff’s decision to not
attend the Martin Luther King celebration in Dear-
born . . . was ‘a far cry’ from the probation officer’s
sexual harassment in Daniels [sic].”1 Consequently, I
agree with the decision reached by the Court of Appeals
affirming the magistrate and WCAC’s award of benefits
to the plaintiff.
A brief recitation of the facts illustrates the distinc-
tion between the employee misconduct that occurred in
Daniel2 and the employee action that occurred here.
The plaintiff, Patricia D. Brackett, worked for defen-
dant Focus Hope in Detroit. Focus Hope’s mission
statement emphasizes the importance of following the
teachings of Martin Luther King, Jr. During her hiring
interview, Ms. Brackett was advised that she would be
required to attend a Focus Hope event on Martin
Luther King, Jr., Day. Because the Martin Luther King
Day celebrations had always been held in Detroit, Ms.
Brackett had no reason to believe at the time she was
hired that she would be required to attend the event in
the city of Dearborn. However, in 2002, the year that
Ms. Brackett was employed by Focus Hope, the director,
Eleanor Josaitis, decided to hold the event not in
Detroit, but in Dearborn, in an effort to promote Focus
Hope’s goal of racial reconciliation. Ms. Brackett testi-
fied that the decision was a topic of open discussion
among Focus Hope employees. Approximately 50 to 60
1
Brackett v Focus Hope, Inc, unpublished opinion per curiam of the
Court of Appeals, issued October 23, 2007 (Docket No. 274078) (emphasis
added).
2
The claimant in Daniel was a male probation officer employed by the
Michigan Department of Corrections. The basis for denying workers’
compensation benefits to the claimant in Daniel was the probation
officer’s blatant and repeated sexual harassment of several female
defense attorneys.
288 482 MICH 269 [July
OPINION BY WEAVER, J.

Focus Hope employees, including Ms. Brackett, who is

African-American, believed the event should not be held
in Dearborn.
Speaking personally about her objections to holding
the event in Dearborn, Ms. Brackett testified that she
voiced her concerns to her immediate supervisor given
her own family’s past experience in the community.
Indeed, evidently the Focus Hope director’s desire to
hold the event in Dearborn, instead of Detroit, was
based in part on her decision to expand the scope of
Focus Hope’s policy by carrying Focus Hope’s message
into a new realm, an area that Ms. Brackett testified
was “not a good fit” for her.
While the majority equates the “misconduct” that
occurred here with the sexual harassment misconduct
that occurred in Daniel, it is not even clear that there
was a well-established work rule to hold the event in
Dearborn, as opposed to Detroit. Therefore, it cannot be
said that Ms. Brackett violated a well-established work
rule.
Moreover, the “harm” that Ms. Brackett suffered in
this case was not caused by the initial response by her
supervisor, but by the director’s harsh personal censure
of Ms. Brackett. Specifically, Ms. Brackett notified her
immediate supervisor that she objected to attending the
event in Dearborn and her supervisor told her she
would be docked one day’s pay for her refusal to attend.
Ms. Brackett accepted this reprimand. It was not until
after the Dearborn event that Ms. Josaitis harshly
censured Ms. Brackett for refusing to attend. Ms.
Brackett asserts that Ms. Josaitis and she had a “one-
on-one” meeting, during which time the director told
Ms. Brackett she was disappointed by Ms. Brackett’s
lack of loyalty and that she had lost faith in her as a
Focus Hope employee.
2008] BRACKETT V FOCUS HOPE, INC 289
OPINION BY WEAVER, J.

In addition, instead of docking Ms. Brackett’s pay for

only one day, which was the accepted punishment
dictated by Ms. Brackett’s supervisor, the director in-
formed Ms. Brackett that she would be docked two
days’ pay. During this meeting, Ms. Brackett further
alleges that Ms. Josaitis shook her finger in Ms. Brack-
ett’s face and told her that she did not deserve a check
from Focus Hope. When Ms. Brackett then asked if she
was being fired, Ms. Josaitis simply shrugged her shoul-
ders and left the room.
As a result of this confrontation, Ms. Brackett left the
job that day and has not returned since. She was deeply
upset by the incident and a psychiatrist diagnosed her
as suffering from disabling depression as a result of the
harsh reprimand by the director.
Given the fact that Ms. Brackett testified that 50 to
60 other Focus Hope employees did not attend the
Martin Luther King Day celebration in Dearborn, and
there was no evidence that these employees were also
singled out and reprimanded in the same harsh manner
as Ms. Brackett, it is questionable whether Daniel even
applies. Daniel states that “MCL 418.305 does not
operate to preclude benefits where an employee was
injured while violating a work rule that had not been
enforced by the employer.” Id. at 46-47. Because it
appears that Ms. Brackett was selectively singled out
for harsh punishment, it is questionable whether this
work rule was strictly enforced across the board.
All the lower tribunals that dealt with this case
declined to deem Ms. Brackett’s decision not to attend
the celebration in Dearborn as “misconduct.” Although
the magistrate found that Ms. Brackett “actually did
willfully not attend the defendant’s M L King Day
celebration,” he made that determination in the context
of discussing Ms. Brackett’s perceptions of workplace
290 482 MICH 269 [July
OPINION BY WEAVER, J.

events. In deciding whether Ms. Brackett should be

denied benefits under MCL 418.305, the magistrate
used the word “misconduct” in quotation marks and
refused to follow Daniel, ruling that the conduct at
issue in this case was “a far cry” from that in Daniel.
The WCAC specifically stated that to call Ms. Brackett’s
actions “misconduct” was “clearly unreasonable” be-
cause she should not have been expected to attend the
celebration in Dearborn. The Court of Appeals agreed
that Ms. Brackett’s “pre-arranged non-attendance” was
not misconduct. Brackett, supra at 2.
Additionally, the magistrate found that Ms. Josaitis’s
reaction amounted to a “chastisement” of Ms. Brackett,
whom she accused of having “broken trust” with the
organization and with Ms. Josaitis herself. Neither the
open discussions among the employees of Focus Hope
about the propriety of holding the celebration in Dear-
born nor Ms. Brackett’s discussion with her supervisor
about the one-day-pay sanction had prepared Ms.
Brackett for Ms. Josaitis’ severe criticism and loss of
trust in her, which accompanied the decision to dock her
two days’ pay. Notably, the magistrate did not find that
Ms. Brackett was injured by Ms. Josaitis’s enforcement
of the rule through the increased pay sanction. Rather,
he found that she was injured by Ms. Josaitis’s ex-
pressed personal disappointment, lack of trust, and loss
of confidence in Ms. Brackett. Thus, it is questionable
whether Ms. Brackett’s mental injury resulted from the
proper enforcement of a workplace rule.
Given the evidence tending to show that Ms. Brack-
ett was singled out for harsh criticism, and the fact that
her “misconduct” here does not equate to the “inten-
tional and wilful” sexual harassment that occurred in
Daniel, I dissent from the majority of four’s decision to
reverse and thereby deprive Ms. Brackett of disability
2008] BRACKETT V FOCUS HOPE, INC 291
OPINION BY WEAVER, J.

benefits. The magistrate, the WCAC, and the Court of

Appeals all concluded that the rule in Daniel should not
be extended to this case. The majority of four instead
nonsensically concludes that an employee’s decision not
to follow a work rule amounts to so-called “intentional
and wilful misconduct” and precludes workers’ compen-
sation benefits regardless of whether the rule is contro-
versial and whether it is properly and uniformly en-
forced. Consequently, I agree with the decision reached
by the Court of Appeals affirming the magistrate and
WCAC’s award of benefits to the plaintiff.
As a final point, I note that given the vastly divergent
factual scenarios presented in this case and in Daniel,
the majority of four should, at the very least, have
granted the application for leave to appeal in order that
the parties and the Court would have the benefit of full
briefing and argument on this important question.

CAVANAGH and KELLY, JJ., concurred with WEAVER, J.

292 482 MICH 292 [July

PEOPLE v SMITH

Docket No. 134682. Decided July 31, 2008.

A Wayne Circuit Court jury convicted Gary T. Smith of three counts of
first-degree criminal sexual conduct for the sexual abuse of a nine-
year-old girl. For a person with the defendant’s offense variable (OV)
level and prior record variable (PRV) level, the sentencing guidelines
recommend a minimum sentence in the range of 9 to 15 years in
prison. The court, Timothy M. Kenny, J., sentenced the defendant to
three concurrent terms of 30 to 50 years. As reasons for its departure
from the recommended minimum sentence range, the court cited (1)
the fact that the defendant had served as a parental role model and a
child-care provider for the victim, (2) the 15-month period over which
the abuse had occurred, (3) the defendant’s threat to evict the victim
and her family from his home if she told anyone about the abuse,
which would have left the family homeless, and (4) the gynecological
examination that the victim had to undergo. The Court of Appeals,
SMOLENSKI, P.J., and WILDER and ZAHRA, JJ., affirmed the defendant’s
convictions and sentences in an unpublished opinion per curiam,
issued July 19, 2007 (Docket No. 267099). The defendant sought
leave to appeal, and the Supreme Court ordered and heard oral
argument on whether to grant the application or take other peremp-
tory action. 480 Mich 1014 (2008).
In an opinion by Justice KELLY, joined by Chief Justice TAYLOR and
Justices CAVANAGH, YOUNG, and MARKMAN, the Supreme Court held:
The trial court articulated some legitimate reasons for a depar-
ture, but failed to justify the severity of the sentences imposed in this
case. The trial court abused its discretion by not establishing why the
sentences imposed were proportionate to the offense and the of-
fender.
1. A trial court must articulate the rationale for the departure it
made. A reviewing court may not substitute its own reasons for
departure, nor may it speculate about conceivable reasons for depar-
ture that the trial court did not articulate or that cannot reasonably
be inferred from what the court articulated.
2. The trial court must articulate one or more substantial and
compelling reasons that justify the departure it made and not
simply any departure it might have made.
2008] PEOPLE V SMITH 293

3. The trial court’s articulation of reasons for the departure must

be sufficient to allow adequate appellate review.
4. The minimum sentence imposed must be proportionate; that
is, the sentence must adequately account for the gravity of the offense
and any relevant characteristics of the offender. To be proportionate,
a minimum sentence that exceeds the guidelines recommendation
must be more appropriate to the offense and the offender than a
sentence within the guidelines range would have been.
5. When fashioning a proportionate minimum sentence that
exceeds the guidelines recommendation, the trial court must justify
why it chose the particular degree of departure. The court must
explain why the substantial and compelling reason or reasons articu-
lated justify the minimum sentence imposed.
6. The trial court may justify the proportionality of a departure
by anchoring it in the sentencing guidelines, comparing the specific
facts of a defendant’s case against the sentences recommended in the
sentencing grid for other offenders who committed the same crime.
The court should explain why the substantial and compelling reasons
supporting the departure are similar to the characteristics or conduct
that would produce a minimum sentence for another offender that is
within the guidelines range for that offender and that is of the same
length as the sentence imposed on the defendant following the
departure.
7. While departures from the guidelines recommendation cannot
be assessed with mathematical precision, the trial court must comply
reasonably with its obligations under the guidelines in order to
further the legislative goal of sentencing uniformity.
8. The trial court in this case did not abuse its discretion by
concluding that the long period of abuse and the defendant’s threat to
retaliate by evicting the victim and her family were substantial and
compelling reasons justifying a departure. While a gynecological
examination is a commonplace repercussion of criminal sexual con-
duct and would not generally represent such a wide deviation from
the norm that a court could premise a departure on it, under the
unique circumstances of this case, the trial did not abuse its discre-
tion by concluding that the examination provided a substantial and
compelling reason for a departure.
9. The trial court, however, gave no explanation for the extent of
the departure independent of the reasons it gave to depart; thus, the
court offered no justification to support the large departure in this
case and failed to justify why the departure was a proportionate one.
Justice MARKMAN, concurring, wrote separately to make two
points. First, the propositions in Justice CORRIGAN’s dissent, if ac-
cepted, would permit a sentencing court to impose a departure
294 482 MICH 292 [July

sentence without justifying the particular departure imposed,

thereby shielding such decisions from meaningful appellate review
and undermining the overall purpose of the sentencing guidelines of
securing uniform and proportionate sentences. Second, Justice MARK-
MAN would emphasize that the majority does not assert that analo-
gizing to the sentencing grid constitutes the exclusive means by
which a court may justify a particular departure; another obvious
possibility would be to compare a sentence to others imposed in
reasonably similar cases. This method would allow a sentencing court
to place a particular case upon a continuum of similar cases, in order
to fashion a uniform and proportionate sentence.
Sentences vacated; case remanded for resentencing.
Justice WEAVER, dissenting, would affirm the judgment of the
Court of Appeals for the reasons stated in that court’s opinion. In
affirming the trial court, the Court of Appeals concluded that the
reasons given for the departure were objective and verifiable, that the
trial court did not abuse its discretion in determining that those
reasons were substantial and compelling, and that the sentences
imposed were proportionate to the seriousness of the crimes.
Justice CORRIGAN, dissenting, would affirm the defendant’s sen-
tences because the sentencing judge met the requirement of articu-
lating his reasons for departure and because the majority, by requir-
ing a sentencing judge to justify the proportionality of a departure
sentence by anchoring it in the sentencing guidelines and by effec-
tively requiring sentencing courts to compare a defendant’s conduct
and criminal history to other defendants’ conduct and criminal
histories, poses an overly burdensome and difficult task on sentenc-
ing courts that is outside the scheme the Legislature enacted for
departures from the sentencing guidelines.

SENTENCES — SENTENCING GUIDELINES — DEPARTURES FROM SENTENCING GUIDE-

LINES RECOMMENDATIONS — ARTICULATION OF REASONS FOR SENTENCING
GUIDELINES DEPARTURES — APPELLATE REVIEW OF SENTENCES.
A trial court must articulate the rationale for any departure it makes
from the minimum sentence range recommended under the sentenc-
ing guidelines; a court reviewing a departure may not substitute its
own reasons for departure, nor may it speculate about conceivable
reasons for departure that the trial court did not articulate or that
cannot reasonably be inferred from what the court articulated (MCL
769.34[3]).

Michael A. Cox, Attorney General, Thomas L. Casey,

Solicitor General, Kym L. Worthy, Prosecuting Attorney,
2008] PEOPLE V SMITH 295
OPINION OF THE COURT

Timothy A. Baughman, Chief of Research, Training, and

Appeals, and Ana I. Quiroz, Assistant Prosecuting Attor-
ney, for the people.

State Appellate Defender (by Jacqueline J. McCann)

for the defendant.

KELLY, J. At issue in this case is whether the trial judge

fulfilled his obligation to articulate a substantial and
compelling rationale for the sentences that he imposed.
For each conviction, defendant’s minimum sentence was
an extreme upward departure from the range set by the
sentencing guidelines. We conclude that the judge articu-
lated adequate reasons to support a departure, but failed
to justify the extent of this departure.
We hold that the departure was an abuse of discretion
because the trial judge did not establish why the sentences
imposed were proportionate to the offense and the of-
fender. Therefore, we vacate defendant’s sentences and
we remand this case to the trial judge for resentencing and
articulation of the rationale for the extent of any depar-
ture made on remand.

FACTS AND PROCEDURAL HISTORY

This is a case involving sexual abuse of a child. The

victim’s mother began taking the victim to defendant’s
home for day care when she was one year old. Over time,
the mother developed a friendship with defendant and
with his wife. The victim, whose family life was fatherless,
chaotic, and disorganized, began to see defendant as a
father figure. When the mother was sent to a halfway
house for nine months for drug abuse, the victim and her
younger sister moved into defendant’s home. Eventually,
the mother moved to Atlanta, Georgia, taking her children
with her. However, the families stayed in touch and
remained close. The victim and her sister returned to
296 482 MICH 292 [July
OPINION OF THE COURT

Michigan during the summers to spend time with defen-

dant and his wife.
When the mother lost her job in Atlanta, defendant and
his wife offered to rent her a room. She accepted. After the
school year ended, she sent her daughters back to Michi-
gan to live with defendant and his wife. The victim was
nine years old at the time. The mother followed her
daughters to Michigan at the end of the summer. She, her
two daughters, and their younger brother all shared a
room in defendant’s home.
The victim testified that defendant began to sexually
abuse her when she was nine years old. All the assaults
were similar. When the victim was alone on a couch with
defendant watching television, defendant would touch her
buttocks and penetrate her vagina and anus with his
finger. The victim testified that defendant’s actions fright-
ened her and that defendant would stop assaulting her
when she got up and left the room. The victim also
testified that defendant threatened that he would evict
her family from the house if she told anyone about the
assaults.
The assaults continued over a 15-month period, until
the victim revealed them to a friend. The information
made its way to the victim’s mother, who called the police.
Defendant was charged with and a jury convicted him of
three counts of first-degree criminal sexual conduct (CSC-
I).1 The recommended minimum sentence range under
the sentencing guidelines was 9 to 15 years’ imprison-
ment. The prosecutor requested that the trial judge
sentence defendant to a minimum sentence at the high
end of the guidelines with a “very, very lengthy tail.”2
1
MCL 750.520b(1)(a).
2
Generally, the punishment for CSC-I is imprisonment for any term of
years or life. MCL 750.520b(2). When the trial court chooses to sentence
a defendant to a term of years, it must fix both the minimum and maximum
2008] PEOPLE V SMITH 297
OPINION OF THE COURT

The judge went further than requested. He imposed

a minimum sentence for each conviction that exceeded
the guidelines recommendation, explaining:
This is the type of case that I think manifests the absolute
worst type of exploitation. A child was placed in a position of
trust and care with the defendant and his wife. This was at a
time a 10 year old child had come from a clearly dysfunctional
family, and this was an opportunity for [defendant] to provide
a sense of refuge and a sense of stability clearly for [the
victim].
There was no male figure in her life, and [defendant] had
that opportunity to fill that role, which could have been not
only a blessing for him but certainly a blessing for [the
victim].
Those of us who have daughters certainly understand that
fathers are in a very unique position with regard to their
daughters and that we have the opportunity in many respects
based on our relationship and the nature of the relationship
that we have with our daughters to model or pattern the type
of healthy or unhealthy relationship that young women then
grow up to have with men in the future as adults.
And so what happened here? Here this 10 year old child
looking for, and in fact starved for a positive adult male role
model ends up being over a period of about 15 months a sex
toy for the defendant. To what extent she will be damaged in
the future, who knows? One certainly hopes that she will be
able to do well.
But certainly this was a circumstance where [defendant]
chose to exploit this relationship. And then in his testimony to
blame the child, categorize her as a liar.
And through this particular ordeal forcing the victim,
this 10 year old, to have to go through a rather, for her, for
a 10 year old, the kind of frightening gynecological type of
examination certainly adding to the trauma in this particular

terms of the sentence. MCL 769.9(2). Here, the prosecutor requested a

minimum term within the statutory guidelines recommendation. The re-
quest for a “lengthy tail” was a request for a high maximum term.
298 482 MICH 292 [July
OPINION OF THE COURT

case, I think that certainly the Michigan Supreme Court in

People versus Babcock has stated that if the Court is going to
go outside the guidelines, the Court must in fact look to
objective and verifiable facts and circumstances in evidence.
Certainly it is an objective and verifiable fact that the
defendant stood in the role of a parental figure for a child who
had none. That this was a child who was sexually exploited
over a period of 15 months. That’s verifiable.
These are the characteristics that I think don’t adequately
get covered in the guidelines. They don’t. I mean it’s unimag-
inable to me to think that a 10 year old who may be fearful of
the fact that she may lose the roof over her head for herself,
her mother and her two siblings, is forced to silently endure
this kind of sexual exploitation.
The guidelines didn’t calculate that, but I am.

On a departure evaluation form, the judge summarized

his reasons for the departure: (1) defendant’s role as a
child-care provider,3 (2) the period over which the abuse
occurred, (3) the defendant’s threat to evict the victim
and her family if she told anyone about his conduct, and
(4) the gynecological examination the victim was forced
to undergo. The judge sentenced defendant to three
concurrent terms of 30 to 50 years’ imprisonment, with
credit for 23 days served. The minimum term of 30
years’ imprisonment is twice the highest minimum
term defendant could have received had the judge
sentenced him within the guidelines recommendation.
3
Because the judge referred to defendant’s status as a child-care provider,
defendant argues that the judge violated MCL 769.34(3)(a). That statute
prohibits a judge from exceeding the guidelines because of a defendant’s
legal occupation. The record indicates that defendant was not legally
working as a child-care provider during the period in question. His wife was
primarily responsible for the baby-sitting services they advertised, and the
home was not licensed to provide child-care. We infer from the judge’s
statements that he referred to the child-care position because defendant had
exploited his position of trust as a child-care provider for the vulnerable
victim. We conclude that the judge did not depart on the basis of defendant’s
occupation.
2008] PEOPLE V SMITH 299
OPINION OF THE COURT

The Court of Appeals affirmed defendant’s convictions

and sentences in an unpublished opinion per curiam.4 It
concluded that the reasons the judge gave for departure
were objective and verifiable.5 It further concluded that
the judge did not abuse his discretion in determining
that his reasons were substantial and compelling.6
Finally, the Court of Appeals held that the sentences
were proportionate to the seriousness of the crimes.7
Defendant applied for leave to appeal in this Court. We
ordered oral argument on whether to grant the applica-
tion or take other peremptory action.8

THE TRIAL COURT’S INITIAL BURDEN TO ARTICULATE

SUBSTANTIAL AND COMPELLING REASONS FOR DEPARTURE

Under MCL 769.34(3), a minimum sentence that de-

parts from the sentencing guidelines recommendation
requires a substantial and compelling reason articulated
on the record. In interpreting this statutory requirement,
the Court has concluded that the reasons relied on must
be objective and verifiable. They must be of considerable
worth in determining the length of the sentence and
should keenly or irresistibly grab the court’s attention.9
Substantial and compelling reasons for departure exist
only in exceptional cases.10 “In determining whether a
sufficient basis exists to justify a departure, the prin-
ciple of proportionality . . . defines the standard against
which the allegedly substantial and compelling reasons
4
People v Smith, unpublished opinion per curiam of the Court of
Appeals, issued July 19, 2007 (Docket No. 267099).
5
Id. at 5-6.
6
Id. at 6.
7
Id.
8
480 Mich 1014 (2008).
9
People v Babcock, 469 Mich 247, 257-258; 666 NW2d 231 (2003).
10
Id.
300 482 MICH 292 [July
OPINION OF THE COURT

in support of departure are to be assessed.”11 For a

departure to be justified, the minimum sentence im-
posed must be proportionate to the defendant’s conduct
and prior criminal history.12
The trial court may not base a departure “on an
offense characteristic or offender characteristic al-
ready taken into account in determining the appro-
priate sentence range unless the court finds from the
facts contained in the court record, including the
presentence investigation report, that the character-
istic has been given inadequate or disproportionate
weight.”13
On appeal, courts review the reasons given for a
departure for clear error.14 The conclusion that a reason
is objective and verifiable is reviewed as a matter of
law.15 Whether the reasons given are substantial and
compelling enough to justify the departure is reviewed
for an abuse of discretion, as is the amount of the
departure.16 A trial court abuses its discretion if the
minimum sentence imposed falls outside the range of
principled outcomes.”17
Under MCL 769.34(7), the court must advise a de-
fendant that he or she may seek appellate review of a
sentence that is more severe than the guidelines recom-
mendation. There is no preservation requirement for
review of such a sentence.18
11
Id. at 262.
12
Id. at 262-264.
13
MCL 769.34(3)(b).
14
Babcock, 469 Mich at 264.
15
Id.
16
Id. at 264-265.
17
Id. at 269.
18
MCL 769.34(7); MCR 2.517(A)(7).
2008] PEOPLE V SMITH 301
OPINION OF THE COURT

In this case, the trial judge articulated the reasons for

his departure. In particular, he referred to the 15-
month period over which the serial abuse occurred. The
fact that defendant abused the victim for more than a
year was not reflected in the guidelines.
That sexual abuse occurred over a long period is an
objective and verifiable reason for departure. The abuse in
this case was not something that was completed quickly.
For more than a year, the victim undoubtedly suffered
psychological stress from the realization that defendant
might abuse her again and again. This fact is of consider-
able worth in determining defendant’s minimum sen-
tence. Also, it is a fact that does not exist in all criminal
sexual conduct cases. Hence, the trial judge did not abuse
his discretion in concluding that the long period of abuse
provided a substantial and compelling reason for depar-
ture.
The judge also relied on the fact that defendant
threatened to retaliate by evicting the victim and her
family if she disclosed to anyone his predatory sexual
behavior. This is objective and verifiable because the
threat was external to the minds of those involved and
could be confirmed on the record. The judge did not
abuse his discretion in concluding that this fact provided a
substantial and compelling reason to depart. It was not
considered in the guidelines, and making such a threat to
a child could cause significant psychological anguish. It
forced the child to choose between reporting the defen-
dant’s repeated criminal assaults and protecting her fam-
ily from homelessness. The threat was distinct enough to
actively and strongly draw the judge’s attention.
The judge additionally relied on the gynecological ex-
amination the victim underwent as a result of defendant’s
sexual abuse. Defendant contends that such examinations
are to be expected when sexual abuse has been alleged and
302 482 MICH 292 [July
OPINION OF THE COURT

cannot constitute a substantial and compelling basis for

departure. Defendant is correct that commonplace reper-
cussions of criminal activity do not support departures,
which may be made only in exceptional cases.19 This is
because the sentencing guidelines are designed to pro-
mote uniformity in criminal sentencing by “ ‘ensur[ing]
that offenders with similar offense and offender char-
acteristics receive substantially similar sentences.’ ”20
Hence, we agree that this repercussion of criminal
sexual conduct would not generally represent such a
wide deviation from the norm that a departure could be
premised on it.
However, under the unique circumstances of this case,
the trial judge’s conclusion that the gynecological exami-
nation provided a substantial and compelling reason for
departure was not an abuse of discretion. The evidence
indicates that the examination added considerably to the
victim’s trauma. This trauma was demonstrated by the
victim’s testimony that the examination was uncomfort-
able and embarrassing. More significantly, it was demon-
strated by her behavior during the examination. Under
these circumstances, the judge did not abuse his discretion
in concluding that this repercussion of defendant’s behav-
ior was of considerable worth in determining the length of
defendant’s minimum sentence.21
19
Babcock, 469 Mich at 257-258.
20
Id. at 267 n 21, quoting former MCL 769.33(1)(e)(iv), which specified
some of the duties at the former Sentencing Commission in connection
with the sentencing guidelines as added by 1994 PA 445.
21
The judge also referred to defendant’s exploitation of the victim’s
vulnerability as a basis for departure. However, this exploitation was, at
least partially, already accounted for in the guidelines under offense
variable 10 (OV 10). MCL 777.40. An offense characteristic taken into
account in determining the sentencing range may not be a basis for
departure unless the judge finds that the characteristic was given
inadequate or disproportionate weight. MCL 769.34(3)(b).
2008] PEOPLE V SMITH 303
OPINION OF THE COURT

By citing these facts that justified departure in this

case, the trial judge met the initial burden of articulation.

PROPORTIONALITY

Having concluded that the trial judge cited substantial

and compelling reasons to justify a departure, we turn to
the question whether the reasons also justified the
particular departure: a minimum sentence that is 15
years more than the top of the guidelines range. “The
obligation is on the trial court to articulate a substan-
tial and compelling reason for any departure.”22 How-
ever, the statutory guidelines require more than an
articulation of reasons for a departure; they require
justification for the particular departure made.
MCL 769.34(3) states:
A court may depart from the appropriate sentence range
established under the sentencing guidelines set forth in

The judge’s failure to address OV 10 leaves us unable to ascertain

whether he believed the factor was given inadequate weight or whether he
failed to recognize that the guidelines consider exploitation. We cannot
discern whether the judge would have departed to the same degree had he
referenced the offense variables, particularly OV 10, that arguably ad-
dressed some of the reasons cited for departure. This failure to address those
variables is an additional basis for our remand for resentencing. See
Babcock, 469 Mich at 260-261.
In her dissent, Justice CORRIGAN argues that this Court should infer that
the judge considered the assessment of points for OV 10 and found the
assessment inadequate. We disagree. The judge’s statement that the “guide-
lines didn’t calculate that,” referring in part to exploitation, implies that he
failed to recognize that points are assessed under the guidelines for exploi-
tation of victim vulnerability. Given this statement and the lack of any
specific reference to OV 10, we will not infer that the judge concluded that
OV 10 inadequately considered the factor of exploitation. Our conclusion is
not the equivalent of requiring “magic words” for departure, as Justice
CORRIGAN suggests. Post at 336. We are simply refusing to infer that the judge
meant one thing when he suggested the opposite.
22
Babcock, 469 Mich at 259.
304 482 MICH 292 [July
OPINION OF THE COURT

chapter XVII if the court has a substantial and compelling

reason for that departure and states on the record the
reasons for departure. [Emphasis added.]

We have stressed that this statutory language requires

the trial court to “justify the particular departure in a
case, i.e., ‘that departure.’ ”23
Appellate courts are obliged to review the trial
court’s determination that a substantial and compel-
ling reason exists for departure.24 Accordingly, the
trial court’s justification “must be sufficient to allow for
effective appellate review.”25 In Babcock, this Court
explained that an appellate court cannot conclude that
a particular substantial and compelling reason for de-
parture existed when the trial court failed to articulate
that reason.26 Similarly, if it is unclear why the trial
court made a particular departure, an appellate court
cannot substitute its own judgment about why the
departure was justified. A sentence cannot be upheld
when the connection between the reasons given for depar-
ture and the extent of the departure is unclear. When
departing, the trial court must explain why the sentence
imposed is more proportionate than a sentence within the
guidelines recommendation would have been.
The “principle of proportionality . . . defines the
standard against which the allegedly substantial and
compelling reasons in support of departure are to be
assessed.”27 Hence, to complete our analysis of whether
the trial judge in this case articulated substantial and
compelling reasons for the departure, we must, of
23
People v Hegwood, 465 Mich 432, 437 n 10; 636 NW2d 127 (2001)
(emphasis in original).
24
Babcock, 469 Mich at 259.
25
Id. at 259 n 13.
26
Id. at 258-259.
27
Id. at 262.
2008] PEOPLE V SMITH 305
OPINION OF THE COURT

necessity, engage in a proportionality review. Such a

review considers “whether the sentence is proportionate
to the seriousness of the defendant’s conduct and to the
defendant in light of his criminal record . . . .”28 “[E]very-
thing else being equal, the more egregious the offense,
and the more recidivist the criminal, the greater the
punishment.”29
As we noted in Babcock, the very purpose of the
sentencing guidelines is to facilitate proportionate sen-
tences. We stated:
Under the guidelines, offense and prior record vari-
ables are scored to determine the appropriate sentence
range. Offense variables take into account the severity of
the criminal offense, while prior record variables take
into account the offender’s criminal history. Therefore,
the appropriate sentence range is determined by refer-
ence to the principle of proportionality; it is a function of
the seriousness of the crime and of the defendant’s
criminal history.[30]

A sentencing departure is appropriate when “there are

substantial and compelling reasons that lead the trial
court to believe that a sentence within the guidelines
range is not proportionate to the seriousness of the
defendant’s conduct and to the seriousness of his crimi-
nal history . . . .”31 The departure from the guidelines
recommendation must “contribute to a more propor-
tionate criminal sentence than is available within the
guidelines range.”32
Here the trial judge gave no explanation for the
extent of the departure independent of the reasons given
28
Id.
29
Id. at 263.
30
Id. at 263-264.
31
Id. at 264.
32
Id.
306 482 MICH 292 [July
OPINION OF THE COURT

to impose a departure sentence. Therefore, no justifica-

tion was offered to support the large departure made.
One potential means of offering such a justification is to
place the specific facts of a defendant’s crimes in the
sentencing grid. When that is done in this case, the result
suggests that the sentence imposed was disproportionate.
Defendant’s crimes are classified as class A felonies.33 The
minimum sentence ranges for class A offenses (in
months) are contained in the following grid:34

Prior Record Variable Level

(Total PRV Points)

Offense A B C D E F
Variable 0 1-9 10-24 25-49 50-74 75+
Level points points points points points points
(Total OV
Points)
I 21-35 27-45 42-70 51-85 81-135 108-180
0-19 points
II 27-45 42-70 51-85 81-135 108-180 126-210
20-39 points
III 42-70 51-85 81-135 108-180 126-210 135-225
40-59 points
IV 51-85 81-135 108-180 126-210 135-225 171-285
60-79 points
V 81-135 108-180 126-210 135-225 171-285 225-375
80-99 points or life
VI 108-180 126-210 135-225 171-285 225-375 270-450
100+ points or life or life

The prior record variable (PRV) level is determined by

the total points assessed for the prior record variables
33
MCL 777.16(y).
34
MCL 777.62.
2008] PEOPLE V SMITH 307
OPINION OF THE COURT

scored. The offense variable (OV) level is determined by

the total points assessed for the offense variables
scored.
Defendant had a total PRV score of 20 points, which
corresponds to a PRV level C.35 The trial judge assessed
10 points for OV 10 (exploitation of a vulnerable victim)
and 50 points for OV 11 (criminal sexual penetration),
resulting in a total OV score of 60 points.36 This
corresponds to an OV level IV. Defendant’s recom-
mended minimum sentence range of 108 to 180 months
is found by locating the intersection of PRV level C and
OV level IV on the sentencing grid for class A felonies.37
The trial judge sentenced defendant as if his OV and
PRV scores corresponded to the E-VI, F-V, or F-VI cell of
the grid.38 These cells provide the highest possible
minimum sentences for class A felonies. For defen-
dant’s sentence to fall within the guidelines recommen-
dation for the E-VI, F-V, or F-VI cell, the judge would
have had to assess 20 to 40 additional OV points and 30
to 45 additional PRV points. On this record, it is hard to
understand what factors would justify the extent of the
departure made. That difficulty is compounded by the
fact that the trial judge offered no justification why this
departure was a proportionate one.
It is compelling to compare defendant’s departure
sentence, 30 to 50 years (360 to 720 months), with the
recommended minimum sentences on the applicable
35
The judge assessed 20 points for PRV 7 (subsequent and concurrent
felonies) because, as a result of this case, defendant had two concurrent
felony convictions. MCL 777.57(1)(a).
36
It appears that the judge erroneously assessed 50 points for OV 11.
However, defendant admits that 50 points should have been assessed for
OV 13 (continuing pattern of criminal behavior). Thus, a correction
would not affect defendant’s OV score.
37
MCL 777.21(1)(c); MCL 777.62.
38
See MCL 777.62.
308 482 MICH 292 [July
OPINION OF THE COURT

sentencing grid. Given defendant’s PRV level of C, his

recommended minimum sentence could not have been
360 months. The highest recommended minimum sen-
tence on the grid for that PRV level is 225 months.39
Accordingly, simply comparing defendant’s actual mini-
mum sentences to the recommended minimum sen-
tences for offenders with similar criminal histories
suggests that defendant’s sentences might be dispro-
portionate.
Moreover, the substantial and compelling reasons on
which the judge based his departure were related to the
nature of the offense, not to the extent of defendant’s
criminal history. Put otherwise, the departure reasons
pertained to defendant’s OV score, not his PRV score.
With regard to the OV score, it is theoretically possible
for a defendant to receive a total of 590 points for a
crime against a person, such as CSC-I.40 If a defendant
has a low PRV score but an OV score over 100, the court
may render a proportionate sentence above the highest
minimum for someone with a similar PRV score. This is
39
Id.
40
MCL 777.22(1) requires the court to score the following offense
variables for all crimes against a person (maximum scores are in
parentheses): OV 1 (aggravated use of a weapon) (25 points), MCL
777.31(1)(a); OV 2 (lethal potential of weapon) (15 points), MCL
777.32(1)(b); OV 3 (physical injury to victim) (100 points), MCL
777.33(1)(a); OV 4 (psychological injury to victim) (10 points), MCL
777.34(1)(a); OV 7 (aggravated physical abuse) (50 points), MCL
777.37(1)(a); OV 8 (asportation of victim) (15 points), MCL 777.38(1)(a);
OV 9 (number of victims) (100 points), MCL 777.39(1)(a); OV 10 (15
points), MCL 777.40(1)(a); OV 11 (50 points), MCL 777.41(1)(a); OV 12
(contemporaneous felonious acts) (25 points), MCL 777.42(1)(a); OV 13
(50 points), MCL 777.43(1)(a); OV 14 (offender’s role) (10 points), MCL
777.44(1)(a); OV 19 (security threats or interference with justice) (25
points), MCL 777.49(1)(a); and OV 20 (terrorism) (100 points), MCL
777.49a(1)(a). Obviously, many of these variables could not be scored in
this case or in most criminal sexual conduct cases. I list them to
demonstrate that more than 100 points are possible under PRV level C.
2008] PEOPLE V SMITH 309
OPINION OF THE COURT

because the Legislature did not contemplate a defen-

dant with such a high OV score, given that it used 100
OV points as the maximum for the grid.
However, that is not the case here, because defen-
dant’s OV score is within the lower OV levels on the
grid. Thus, the trial judge must explain why the reasons
for the departure that he articulated warranted a
drastic departure from the highest minimum available
for a defendant with a similar PRV score. The burden
will be heavy, because the sentence imposed is literally
off the charts for a defendant with a criminal back-
ground similar to that of this defendant.
A comparison of defendant’s sentences to the sen-
tences recommended for other offenders who commit-
ted the same type of crime suggests that defendant’s
sentences might be disproportionate. Although the
atrocity of any criminal sexual conduct offense is not to
be minimized, proportionality is still judged by weigh-
ing both the nature of the offense and the offender’s
criminal history. Given the fact that defendant had no
criminal history, the 30-year minimum sentence im-
posed for each conviction might be a disproportionate
departure.
Certainly, a trial court that is contemplating a depar-
ture is not required to consider where a defendant’s
sentence falls in the sentencing range grid. However, we
think that reference to the grid can be helpful, because
it provides objective factual guideposts that can assist
sentencing courts in ensuring that the “ ‘offenders with
similar offense and offender characteristics receive sub-
stantially similar sentences.’ ”41
41
Babcock, 469 Mich at 267 n 21, quoting former MCL 769.33(1)(e)(iv),
as added by 1994 PA 445. The statutory sentencing guidelines are based
on statewide sentencing data. They reflect the Legislature’s judgment
about how the variables of mitigation and aggravation should be applied
310 482 MICH 292 [July
OPINION OF THE COURT

Appellate review is also aided when a court explains

the similarity between the facts justifying the departure
and the facts describing a crime meriting the same
sentence under the guidelines. Also, a comparison of a
defendant’s characteristics and those of a hypothetical
defendant whose recommended sentence is comparable
to the departure sentence is a valuable exercise. This,
too, will aid an appellate court in reviewing the propor-
tionality of the departure.
The trial court should note which variables it is
considering in such a comparison. It should explain why
its reasons for departure are as significant as the
characteristics that would produce an equally lengthy
recommended minimum sentence under the guidelines.
Turning to the facts in the instant case, it is obvious
that CSC-I involving a nine-year-old child is a heinous
crime. It damages children, families, and friendships.
But all CSC-I cases do not wreak the same amount of
damage. That the sexual abuse in this case occurred
over a 15-month period is extraordinarily disturbing, as
the trial judge recognized. That defendant threatened
to evict the victim and her family if she reported the
crime is also of considerable importance in determining
defendant’s sentence. That the victim underwent a
traumatic gynecological examination is also of conse-
quence.
The trial judge articulated some appropriate reasons
for departure, but failed to explain why those reasons
justify the extent of the departure. Furthermore, it is
not readily apparent why such a substantial departure
to reach a proportionate sentence. Accordingly, the sentencing grids
provide an objective source of data on sentencing. The statutory guide-
lines, and the judicial guidelines that preceded them, were designed to
avoid individual and regional variation in sentencing. Hence, using the
grid as a reference point to assess and anchor a departure is an exercise
well-designed to promote uniformity.
2008] PEOPLE V SMITH 311
OPINION OF THE COURT

is warranted on the basis of those reasons. While defen-

dant’s crime is most certainly heinous, we cannot discern
why the trial judge selected a minimum sentence so far in
excess of the recommended guidelines range.42 We cannot
uphold such an unsupported departure.
As noted earlier, the sentencing guidelines were de-
signed to promote uniformity in sentencing. One of the
purposes of the proportionality requirement is to mini-
mize idiosyncrasies. We do not suggest that trial courts
must sentence defendants with mathematical certainty.43
Nor are any precise words necessary for them to justify
a particular departure.44
Ultimately, in reviewing sentences, appellate courts
examine the reasons articulated for departure. The trial
court’s articulation must be sufficiently detailed to facili-
tate appellate review. This includes an explanation of why
the sentence imposed is more proportionate to the offense
and the offender than a different sentence would have
been. Here the trial judge failed to offer any valid expla-
nation justifying why he chose to sentence defendant to
minimum terms of imprisonment of 30 years. As such, we
must vacate defendant’s sentences and remand the case to
the trial judge so that he may articulate why this level of
departure is warranted or resentence defendant.

RESPONSE TO JUSTICE CORRIGAN’S DISSENT

Contrary to Justice CORRIGAN’s assertion, our ap-

proach is completely consistent with Babcock and the
language of MCL 769.34. We emphasize in this opinion
42
A departure cannot be justified on the sole basis that a crime is
heinous. All criminal-sexual-conduct cases involving young children are
heinous. Certainly the Legislature did not overlook this basic fact when
establishing sentencing guidelines for these crimes.
43
Babcock, 469 Mich at 260 n 14.
44
Id. at 259 n 13.
312 482 MICH 292 [July
OPINION OF THE COURT

a point that was made in Babcock. It is that, under MCL

769.34(3), “the trial court must articulate on the record a
substantial and compelling reason to justify the particular
departure imposed.”45 Although Justice CORRIGAN argues
that neither Babcock nor MCL 769.34 requires that this
case be remanded, she fails to identify where in the
record the trial judge justified the particular departure
he made. She cannot identify it because the trial judge
failed to provide it. We cannot uphold a departure when
the connection between the reasons given for departure
and the extent of the departure is so unclear. To do so
would be akin to immunizing sentencing decisions from
review for proportionality. Moreover, it would under-
mine the Legislature’s goal in enacting the sentencing
guidelines.
The Legislature adopted the guidelines to promote
uniform sentencing across the state.46 The general rule
is that minimum sentences must be within the recom-
mended guidelines range.47 A defendant is entitled to be
sentenced within that range unless the judge provides a
substantial and compelling reason why a departure
sentence is more proportionate to the offense and the
offender. The judge must explain why a sentence out-
side the range better promotes uniform sentencing, in
accordance with the purpose of the guidelines.
45
Id. at 260.
46
See former MCL 769.33(1)(e)(iv), as added by 1994 PA 445. This
provision was the part of the Code of Criminal Procedure that created the
Sentencing Commission. The Legislature repealed the provisions in the
code pertaining to the commission, including MCL 769.33(1)(e)(iv), after
it enacted the sentencing guidelines. See 2002 PA 31. But the fact that it
repealed the provision as part of the elimination of the Sentencing
Commission does not mean that the Legislature abandoned its goal of
uniformity in sentencing. Rather, it represents the fact that the Legisla-
ture concluded that the Sentencing Commission had done all that it could
to further that goal.
47
MCL 769.34(2).
2008] PEOPLE V SMITH 313
OPINION OF THE COURT

Justice CORRIGAN contends that it is sufficient to

further the legislative goal of sentencing uniformity to
require judges to articulate substantial and compelling
reasons for their departures. She argues that this
requirement ensures that departures are difficult
enough to justify that the exception does not swallow
the rule. She further asserts that, as long as the record
supports a departure, any departure sentence should be
upheld on appeal as long as it is reasonable. She rejects
this Court’s holding in Babcock when she opines that a
judge should not be required to justify the particular
departure sentence imposed.
Justice CORRIGAN relies on MCL 769.34(11), which
states:
If, upon a review of the record, the court of appeals finds
the trial court did not have a substantial and compelling
reason for departing from the appropriate sentence range,
the court shall remand the matter to the sentencing judge
or another trial court judge for resentencing under this
chapter.

Justice CORRIGAN misconstrues this provision by failing

to read it in the context of the rest of the statute.
In MCL 769.34(3), the Legislature put the burden on
the trial court to place on the record one or more
substantial and compelling reasons for a particular
departure.48 Hence, it is the trial court that must justify
on the record both the departure and the extent of the
departure.49 This is not to say that appellate courts need
48
See MCL 769.34(3); Babcock, 469 Mich at 259-260.
49
Justice CORRIGAN is mistaken when she opines that, by requiring
courts to justify the particular departure, we read into the statute
something that is not there. The Legislature has required the trial court
to state a substantial and compelling reason justifying the departure.
MCL 769.34(3). Our opinion today merely provides guidance to trial
courts on how they may formulate and articulate that justification. It is,
314 482 MICH 292 [July
OPINION OF THE COURT

examine only the sentencing transcript to determine if the

court abused its discretion in imposing a sentence. Under
MCL 769.34(11), appellate courts review the record to
ascertain if the court articulated adequate reasons for the
departure and to justify the extent of the departure. If,
after reviewing the whole record, the connection between
the reasons given for departure and the extent of the
departure is unclear, then the sentence cannot be up-
held.50
Moreover, simply requiring a court to articulate
substantial and compelling reasons for a departure
would not promote uniformity. Trial courts would not
be constrained to impose only those sentences that
they can justify. Under the rule advocated by Justice
CORRIGAN, defendants with similar offense and of-
fender characteristics could receive widely divergent
departure sentences. Justice CORRIGAN would not sub-
ject sentences based on a departure to full appellate
review. Any arguably reasonable sentence would be
upheld, even if it were not proportionate to the
offense and the offender. A lack of meaningful review
would inevitably encourage idiosyncratic sentencing.
Such a result is contrary to the Legislature’s express
intent.51
in fact, our duty to give guidance to the bench and bar in such matters.
50
However, appellate courts may not review the record to search for
reasons to uphold a sentence that the trial court failed to justify. Babcock,
469 Mich at 258-259.
51
See former MCL 769.33(1)(e)(iv), as added by 1994 PA 445. Justice
CORRIGAN’s conclusion that the Legislature desired that a less stringent
standard of uniformity pertain to departure sentences, post at 338, is
incorrect. The Legislature permitted departures with the understanding
that the guidelines could not account for all conceivable scenarios.
However, that fact does not alter the overarching goal of uniformity in all
sentencing. Rather, it constitutes the Legislature’s recognition that
uniformity can be advanced only if departures from the guidelines are
limited to cases involving unusual circumstances.
2008] PEOPLE V SMITH 315
OPINION OF THE COURT

The requirement that the trial court justify the

extent of the departure is not overly burdensome. The
court need only reasonably comply with the statutory
articulation requirement in order to facilitate appellate
review. Justice CORRIGAN expends a great deal of energy
attempting to rebut an argument that we do not make:
that a trial court must provide a mathematical justifi-
cation for its departure.
Our observation that grounding a departure in the
sentencing guidelines will help to explain the extent of
the departure does not mean that departure can be
reduced to a mathematical equation. To the contrary,
mathematical precision in sentencing is neither re-
quired nor possible. Nonetheless, the difference be-
tween the sentence imposed based on a departure and
the recommended minimum sentence range under the
guidelines is relevant to the proportionality analysis.
When Justice CORRIGAN advocates upholding defen-
dant’s sentences even though the judge failed to justify
this difference, she disregards Babcock.
Justice CORRIGAN relies heavily on the United States
Supreme Court decision in Gall v United States.52 There
the Court addressed whether an appellate court review-
ing a substantial variance from the federal sentencing
guidelines could require that the departure be justified
by “extraordinary circumstances.”53 The Gall Court

With respect to departures, we must determine whether the trial

court abused its discretion in imposing the sentence by weighing whether
the reasons given justify the departure. We ask whether the court imposed
a sentence that is not proportionate to the offense and the offender and
thereby abused its discretion. We would be derelict in our duty to advance
the Legislature’s goal of uniform sentencing if we imposed a less stringent
standard of review on sentences that are based on a departure.
52
Gall v United States, 552 US___; 128 S Ct 586; 169 L Ed 2d 445 (2007).
53
Id. at ___; 128 S Ct at 591.
316 482 MICH 292 [July
OPINION OF THE COURT

held that an appellate court could consider the degree of

deviation from the federal sentencing guidelines when
reviewing a departure.54 However, it rejected “an appel-
late rule that requires ‘extraordinary’ circumstances to
justify a sentence outside the Guidelines range.”55 The
Gall Court also rejected “the use of a rigid mathemati-
cal formula” in gauging the justifications for the depar-
ture.56
Much of the Gall Court’s analysis is inapplicable to
Michigan’s indeterminate sentencing guidelines. The
federal sentencing guidelines are not mandatory.57 By
contrast, a sentence in Michigan must be within the
guidelines recommendation unless the court states on
the record one or more substantial and compelling
reasons to depart from it.58 Substantial and compelling
reasons for departure exist only in exceptional cases.59
And when a trial court renders a departure sentence,
Michigan appellate courts must review whether the
court abused its discretion in concluding that extraor-
dinary circumstances justified it.
To the extent that Justice CORRIGAN relies on Gall to
reject the use of a rigid mathematical formula, her reli-
ance is misplaced. As previously indicated, we do not
adopt a rigid mathematical formula. Instead, consistently
with Gall, we stress that the difference between a depar-
ture sentence and one within the recommended guidelines
range is relevant to the proportionality analysis.60 Accord-
ingly, it is appropriate for courts to articulate the
54
Id. at ___; 128 S Ct at 594-595.
55
Id. at ___; 128 S Ct at 595.
56
Id. at ___; 128 S Ct at 595.
57
Id. at ___; 128 S Ct at 594.
58
People v Buehler, 477 Mich 18, 24; 727 NW2d 127 (2007).
59
Babcock, 469 Mich at 257-258.
60
Gall, 552 US at ___; 128 S Ct at 591.
2008] PEOPLE V SMITH 317
OPINION OF THE COURT

required justification for departure by anchoring that

justification in the sentencing guidelines.
Justice CORRIGAN buoys her position with facts that are
not relevant. For instance, it is true that the trial judge in
this case could have imposed a life sentence. But this fact
does not bear on whether he justified the sentence he
actually imposed. Similarly, Justice CORRIGAN spends con-
siderable time discussing the behavior of defendant’s wife
during the trial. But even if the wife’s behavior could be
attributed to defendant, the judge did not cite it as a basis
for departure. Accordingly, it cannot support the depar-
ture made.61
Justice CORRIGAN suggests that our analysis re-
sembles de novo review.62 Her assertion is unexplained
and misguided. We continue to review for an abuse of
discretion. We weigh whether the reasons that the trial
court gave are substantial and compelling enough to
justify the departure sentence imposed. In this case, the
judge abused his discretion because he imposed a de-
parture sentence without adequately justifying the ex-
tent of the departure. Therefore, the sentence falls
outside the range of principled outcomes.
The analysis set forth in this opinion is consistent
with MCL 769.34 and with the caselaw interpreting
that statute. Moreover, it is not overly burdensome, and
it advances the Legislature’s goal of sentencing unifor-
mity. The same cannot be said for Justice CORRIGAN’s
analysis.

SUMMARY

In order to assist trial courts in fulfilling their

statutory obligations, we offer the following summary:
61
Babcock, 469 Mich at 258-259.
62
Post at 334 n 4.
318 482 MICH 292 [July
OPINION OF THE COURT

(1) The trial court bears the burden of articulating

the rationale for the departure it made. A reviewing
court may not substitute its own reasons for departure.
Nor may it speculate about conceivable reasons for depar-
ture that the trial court did not articulate or that cannot
reasonably be inferred from what the trial court articu-
lated.
(2) The trial court must articulate one or more substan-
tial and compelling reasons that justify the departure it
made and not simply any departure it might have made.
(3) The trial court’s articulation of reasons for the
departure must be sufficient to allow adequate appel-
late review.
(4) The minimum sentence imposed must be propor-
tionate. That is, the sentence must adequately account for
the gravity of the offense and any relevant characteristics
of the offender. To be proportionate, a minimum sentence
that exceeds the guidelines recommendation must be
more appropriate to the offense and the offender than a
sentence within the guidelines range would have been.
(5) When fashioning a proportionate minimum sen-
tence that exceeds the guidelines recommendation, a trial
court must justify why it chose the particular degree of
departure. The court must explain why the substantial
and compelling reason or reasons articulated justify the
minimum sentence imposed.
(6) It is appropriate to justify the proportionality of a
departure by comparing it against the sentencing grid and
anchoring it in the sentencing guidelines. The trial court
should explain why the substantial and compelling rea-
sons supporting the departure are similar to conduct that
would produce a guidelines-range sentence of the same
length as the departure sentence.
2008] PEOPLE V SMITH 319
CONCURRING OPINION BY MARKMAN, J.

(7) Departures from the guidelines recommendation

cannot be assessed with mathematical precision. The
trial court must comply reasonably with its obligations
under the guidelines, as set forth in this opinion, to
further the legislative goal of sentencing uniformity.

CONCLUSION

Some of the reasons that the trial judge articulated as

the basis for the departure are legitimate. However,
those reasons fail to justify the severity of the minimum
sentences that he imposed. From our review of the
record and of the judge’s reasons for departure, it is
unclear why a minimum sentence of 30 years’ impris-
onment is warranted for this defendant.
We vacate defendant’s sentences and remand this
case to the trial judge for resentencing and for an
explanation of the extent of any departure made on
remand. We deny leave to appeal in all other respects.

TAYLOR, C.J., and CAVANAGH, YOUNG, and MARKMAN,

JJ., concurred with KELLY, J.

MARKMAN, J. (concurring). I concur fully with the

majority opinion. I write separately to respond briefly to
Justice CORRIGAN’s dissent and to emphasize one point
that I believe is implicit in the majority opinion, but
ought to be made explicit.
First, what separates the dissenting justices from the
majority justices is not the former’s conviction that
defendant’s 30-year minimum sentences “fall within
the range of reasonable opinions regarding what sen-
tences are appropriate in this case.” Post at 357. Rather,
it is the latter’s conviction that the Legislature’s pur-
poses in enacting the sentencing guidelines—
320 482 MICH 292 [July
CONCURRING OPINION BY MARKMAN, J.

in particular the attainment of reasonably uniform and

proportionate criminal sentences—can only be achieved
if the guidelines are understood to mean what they say.
Justice CORRIGAN fails to take sufficient account of the
dispositive language in the present controversy:
A court may depart from the appropriate sentence range
established under the sentencing guidelines set forth in
chapter XVII if the court has a substantial and compelling
reason for that departure and states on the record the reasons
for departure. [MCL 769.34(3) (emphasis added).][1]

Thus, we can derive the following from this statute: (1) it

is the sentencing court that must “state[] on the record
the [substantial and compelling] reasons for departure,”
not the appellate court, and (2) the sentencing court must
articulate its reasons in support of “that” departure, not
“some” departure, not “any” departure, and not “a”
departure.2
These requirements are an obvious function of the
overall purpose of the guidelines, which is to diminish the
sentencing discretion of individual judges, and to temper
1
Justice CORRIGAN criticizes the majority for relying on a “single
word”—“that”—in MCL 769.34(3). Post at 352. However, this Court
“interpret[s] every word, phrase, and clause in a statute to avoid
rendering any portion of the statute nugatory or surplusage,” Herald Co
v Eastern Michigan Univ Bd of Regents, 475 Mich 463, 470; 719 NW2d 19
(2006) (emphasis added). To recall merely one previous decision in accord
with this rule, we have placed great weight on whether “a” or “the” was
employed in a statute. See Robinson v Detroit, 462 Mich 439, 461-462; 613
NW2d 307 (2000).
2
Justice CORRIGAN would essentially compress what is in reality a
two-part burden on the sentencing court into a single burden, by
requiring the court to ask simply if “substantial and compelling” reasons
exist for a departure. If so, then no further explanation would be required
concerning the extent of a departure. She reaches this conclusion by
removing from context MCL 769.34(11), which addresses appellate
review generally, instead of harmonizing that provision with MCL
769.34(3), which sets forth a sentencing court’s specific burdens under
the sentencing guidelines.
2008] PEOPLE V SMITH 321
CONCURRING OPINION BY MARKMAN, J.

aberrational or idiosyncratic sentencing decisions by sub-

stituting legal rules. The guidelines are intended to elimi-
nate widely disparate sentences in which punishments
may be more closely related to the predispositions of
individual judges than to the predispositions of the people,
as reflected through their representatives. Uniformity and
proportionality of criminal sentences simply cannot be
attained if departure sentences are largely exempted from
legal rules under the guidelines, and MCL 769.34(3), in
fact, establishes these rules: (a) the requirement that the
sentencing court articulate reasons why a guidelines-
range sentence is inadequate, and (b) the articulation of
reasons in support of a specific departure sentence.3 Not-
withstanding, for example, that each lies outside a
guidelines range of 9 to 15 years, there is a considerable
difference between a 16-year and a 30-year minimum
sentence, and the sentencing court must sufficiently
justify these different decisions. This is not, as Justice
CORRIGAN suggests, because of any “unreasonably bur-
densome” requirements imposed by this Court, post at
356, but because the Legislature has required this. The
question in reviewing criminal sentences is not whether
a sentence is “reasonable,” post at 357, but whether it is
lawful, i.e., in compliance with both the substance and
the procedure of the guidelines.
Were Justice CORRIGAN’s position to prevail, the reforms
achieved by the sentencing guidelines would be signifi-
cantly undermined. The goal of reasonably uniform pun-
ishments, in which similarly situated offenders are ac-
3
Although Justice CORRIGAN asserts that the majority “enacts a new,
corollary sentencing regime by extending the sentencing guidelines to apply
to departure sentences,” post at 330, all that the majority asserts in reality
is that departure sentences are no more exempt from the restraint of legal
rules than non-departure sentences. The articulation of a “substantial and
compelling” reason for departing from the guidelines does not constitute an
all-purpose warrant for a departure of any magnitude.
322 482 MICH 292 [July
CONCURRING OPINION BY MARKMAN, J.

corded reasonably similar punishments, would be

significantly diluted. Defendant here, like every other
criminal defendant, is entitled to be sentenced within the
minimum-sentence range recommended under the legis-
latively mandated guidelines range, which, for defendant,
has as its maximum 15 years’ imprisonment. That is
because this is the law. It can be assumed that each and
every criminal sexual exploitation of a child is “heinous”
and “atrocious,” and yet this remains the punishment the
people of Michigan have seen fit to establish in their law.
When, however, there is a basis for an upward departure
from the guidelines because there are factors that have
not been taken into consideration, that departure is per-
missible, but it too must be done in accordance with the
law. The sentencing judge may depart from the guidelines
range, but he must articulate the basis for doing so, and he
must explain why an alternative sentence better comports
with the aims of the law, in particular the law’s pursuit of
proportionate and uniform criminal sentences.
Justice CORRIGAN would essentially exempt from
these standards that part of a potential criminal sen-
tence lying outside the guidelines range, which in the
present case would exempt nearly 90 percent of defen-
dant’s potential sentence from even rudimentary appel-
late review.4 Defendants sentenced within the guide-
lines range would be subject to the standards of
proportionality and uniformity, while defendants sen-
tenced outside this range would be restored to a pre-
guidelines environment in which individual judges
could impose widely disparate sentences without mean-
4
Reflecting a theme running throughout her opinion, Justice CORRIGAN
asserts that the majority opinion will result in “incomplete scrutiny” of
departure sentences. Post at 334 n 4; see also note 6 of this opinion.
However, in pursuing the goals of uniformity and proportionality among
departure sentences, it is hardly compelling to argue that this is better
not done at all than through imperfect means.
2008] PEOPLE V SMITH 323
CONCURRING OPINION BY MARKMAN, J.

ingful appellate review. Once grounds have been articu-

lated for proceeding outside the guidelines range (in
this case, a minimum sentence of 9 to 15 years), it would
be of little moment whether the sentencing judge imposed
a 16-year or a 30-year sentence following an upward
departure, or an 8-year or a 2-year sentence following a
downward departure, for the dissenting justices see little
need to justify the actual sentence given to a defendant.5
The sentencing guidelines were designed to restrain
judicial sentencing discretion, so that punishments would
effectively be determined by the people through their
representatives, rather than by the serendipity of whether
Lenient Larry or Maximum Mike happened to be the
sentencing judge. The direction of the dissents is toward
the restoration of a system in which citizen judgments
concerning appropriate criminal punishments would be
supplanted by the decision-making of individual judges. In
place of what has proven to be a successful reform of the
criminal-justice system, and the attainment of a height-
ened rule of law, the dissenting justices, by eroding the
sentencing guidelines, would restore a heightened rule of
judges.
Second, I would emphasize that the majority does not
assert that analogizing to the sentencing grid constitutes
5
Justice CORRIGAN asserts that departure sentences are “not governed by
the general rule of uniformity” that applies to guidelines-range sentences,
because “[d]eparture sentences generally involve less quantifiable
facts . . . .” Post at 338, 337-338. However, “quantifiability” is not the
distinguishing characteristic between guidelines-range sentences and depar-
ture sentences. That is, a departure sentence may be based on nothing more
than the fact that the guidelines do not fully account for the sheer number
of victims harmed by the defendant, a readily “quantifiable” number.
Moreover, departure sentences must be based upon “objective and verifi-
able” factors, People v Babcock, 469 Mich 247, 257-258; 666 NW2d 231
(2003), hardly a synonym for “non-quantifiable.” There are not two tiers of
criminal sentences in Michigan, one in which uniformity and proportionality
are sought, and another in which they are not.
324 482 MICH 292 [July
CONCURRING OPINION BY MARKMAN, J.

the exclusive means by which a court may seek to justify

a particular departure; rather, it holds that some means is
necessary to “justify why [the sentencing court] chose the
particular degree of departure,” ante at 318, and that
using the sentencing grid constitutes one “potential
means of offering such a justification.” Ante at 306. I agree
with this.
However, one additional logical method by which to
justify a particular departure, perhaps not worth belabor-
ing because of its obviousness, is for the court simply to
compare a sentence to others imposed in reasonably
similar cases. This method derives from the basic principle
underlying our sentencing system: securing a proportion-
ate criminal sentence. A proportionate sentence is one
that adequately reflects “ ‘the seriousness of the defen-
dant’s conduct and . . . the seriousness of his criminal
history.’ ” Ante at 305, quoting People v Babcock, 469
Mich 247, 264; 666 NW2d 231 (2003). Assessing the
seriousness of a defendant’s conduct and his criminal
history necessarily entails that a sentencing court will
engage in some comparison between criminal offenses.
That is, the seriousness of a defendant’s conduct and a
defendant’s criminal history is not measured in a vacuum;
rather, in answering the question of how “serious” a crime
is, the court is essentially asking itself whether that crime
is of greater or lesser gravity than other criminal offenses
and “determining where, on the continuum from the least
to the most serious situations, an individual case
falls . . . . ” People v Milbourn, 435 Mich 630, 654; 461
NW2d 1 (1990). Thus, a comparison of a departure in one
case to those imposed in reasonably similar cases consti-
tutes one reasonable method by which a sentencing court
may seek to fashion a proportionate sentence.
It may well be that judges initially will primarily
consider reasonably similar cases decided by themselves
2008] PEOPLE V SMITH 325
DISSENTING OPINION BY WEAVER, J.

or by geographically proximate judges.6 Thus, there may

be some anecdotal or arbitrary quality to this process,
which must be cautioned against. However, over time,
as the guidelines, and judicial interpretations of these
guidelines, become more deeply embedded in our justice
system, it may be expected that more sentencing data
will be collected and maintained, and that judges will
possess some greater capacity to search broadly for
relevant cases with which to compare their own. Espe-
cially as more appellate decisions are rendered with
regard to departure sentences, case comparisons should
become increasingly useful and less a matter of happen-
stance.
Thus, along with analogizing to the sentencing grid,
one additional method for justifying a particular depar-
ture is to simply look to sentences imposed in reason-
ably similar cases. Given the current limited availability
of such information in the legal marketplace, this will
not always be possible, but where it is available, it
should be welcomed and used. In appropriate instances,
such information can assist the sentencing court in
properly placing a case along a continuum of reasonably
similar cases, and thereby fashioning a more propor-
tionate and uniform sentence.

WEAVER, J. (dissenting). I dissent from the majority’s

decision to remand this case to the trial court for
6
Justice CORRIGAN expresses her belief that “case comparison will [not]
become meaningfully less arbitrary over time,” and that there exists a
“potential to increase disparities in local sentencing practices.” Post at
331-332 n 2. However, better that there be imperfect comparisons than
no comparisons at all, as apparently preferred by Justice CORRIGAN. Over
time, as sentencing data accumulate under the guidelines, as I believe it
will, such comparisons will increasingly tend to become valuable in
achieving reasonable sentencing uniformity and proportionality. I fail to
see any “inconsisten[cy],” id. at 332, in my belief that comparisons of
cases constitute one essential and obvious means of furthering these
goals.
326 482 MICH 292 [July
DISSENTING OPINION BY WEAVER, J.

resentencing. I disagree that the trial court failed to

explain why it made the specific departure it imposed as
a sentence in this case. For the reasons stated in the
judgment of the Court of Appeals, as set forth below, I
would affirm that judgment, which affirmed the trial
court’s departure from the sentencing guidelines:
Finally, the trial court must consider proportionality. If
a trial court finds that there are substantial and compelling
reasons to believe that sentencing a defendant within the
[sentencing] guidelines range would not be proportionate
to the seriousness of the defendant’s conduct and criminal
history, then the trial court should depart from the guide-
lines. [People v] Babcock, [469 Mich 247,] 264 [666 NW2d
231 (2003)]. “In considering whether, and to what extent,
to depart from the guidelines range, a trial court must
ascertain whether taking into account an allegedly sub-
stantial and compelling reason would contribute to a more
proportionate criminal sentence than is available within
the guidelines range.” Id. at 272, citing MCL 769.34(3). “In
determining whether a sufficient basis exists to justify a
departure, the principle of proportionality—that is,
whether the sentence is proportionate to the seriousness of
the defendant’s conduct and to the defendant in light of his
criminal record—defines the standard against which the
allegedly substantial and compelling reasons in support of
departure are to be assessed.” Id. at 262. In other words,
the principle of proportionality requires that a sentence
“be proportionate to the seriousness of the circumstances
surrounding the offense and the offender.” People v Mil-
bourn, 435 Mich 630, 636, 651; 461 NW2d 1 (1990).
“This Court reviews for clear error a trial court’s factual
findings at sentencing.” People v Mack, 265 Mich App 122,
125; 695 NW2d 342 (2005). Specifically, the “existence or
nonexistence of a particular sentencing factor is a factual
determination for the sentencing court to determine, and
should therefore be reviewed by an appellate court for clear
error.” People v Babcock, 469 Mich 247, 273; 666 NW2d 231
(2003) (internal quotation marks, brackets and citations
omitted). “The determination that a particular sentencing
2008] PEOPLE V SMITH 327
DISSENTING OPINION BY WEAVER, J.

factor is objective and verifiable should be reviewed by the

appellate court as a matter of law.” Id. (internal quotation
marks, brackets and citations omitted). Finally, a “trial
court’s determination that the objective and verifiable
factors present in a particular case constitute substantial
and compelling reasons to depart from the statutory mini-
mum sentence shall be reviewed for abuse of discretion.”
Id. at 274 (internal quotation marks and citations omitted).
“An abuse of discretion occurs when the trial court chooses
an outcome falling outside the permissible principled range
of outcomes.” Id.
Here, defendant’s guidelines range, for the minimum
sentence, was 9 to 15 years. The trial court sentenced
defendant to a minimum of 30 years’ imprisonment. At
sentencing, the trial court stated reasons for the departure:
“Certainly it is an objective and verifiable fact that the
defendant stood in the role of a parental figure for a child
who had none. That was a child who was sexually exploited
over a period of 15 months. That’s verifiable.
“These are characteristics that I think don’t adequately
get covered in the guidelines. They don’t. I meant [sic] it’s
unimaginable to me to think that a 10 year old who may be
fearful of the fact that she may loose [sic] the roof over her
head for herself, her mother and her two siblings, is forced
to silently endure this kind of sexual exploitation.
“The guidelines didn’t calculate that, but I am.”
In the Departure Evaluation Form, the trial court
reiterated the previously stated reasons for departing from
the guidelines’ recommended minimum sentence range,
and added an additional reason:
“Defendant served as child care provider for nine years
and molested the victim over a 15 month period.
“Defendant threatened to evict the child victim and her
family if she told anyone about the [criminal sexual con-
duct].
“Child victim was forced to undergo a painful physical
exam as a result of the incident.”
We conclude that the articulated reasons for the depar-
328 482 MICH 292 [July
DISSENTING OPINION BY WEAVER, J.

ture were objective and verifiable. [People v] Abramski,

[257 Mich App 71, 74; 65 NW2d 501 (2003)]. It is objective
and verifiable that defendant served as child care provider
for nine years. The lower court record reveals that, with
the exception of a three year period, defendant and [his
wife, Carol Smith,] provided child care for the victim in
their home from the time she was one year old in 1994 until
the victim was 10 years old. During the time the victim was
out of defendant’s home, he kept in close contact with her
through cards and phone calls. According to defendant’s
own testimony, the victim “became like part of the family”
during the time he cared for her.
Additionally, the lower court record reveals that the
sexual abuse occurred over a period of 15 months. The first
incident occurred sometime in May 2002, when the victim
was nine years old. The last incident took place sometime
at the end of July 2003, approximately three weeks before
the victim revealed the allegations on August 20, 2003. The
jury necessarily found that these instances of abuse oc-
curred, because it found defendant guilty on all three
counts. Thus, the fact of the abuse over this period of time
has been objectively verified by the trier of fact. Thus, it is
objective and verifiable that defendant served as child care
provider for many years and molested the victim over a
period of 15 months.
It is also objective and verifiable that defendant threat-
ened to evict the victim and her family. This threat is not
based solely on the testimony of the victim, because it is not
disputed that defendant threatened to evict the victim and
her family. Finally, it is objective and verifiable that the
victim was forced to undergo a physical examination as a
result of the abuse. There can be no reasonable dispute
that the victim was subjected to a physical examination on
August 22, 2003.
The trial court did not abuse its discretion in determin-
ing that these factors constituted substantial and compel-
ling reasons for an upward departure. Babcock, supra at
264-265. In determining whether the departure was
proper, this Court must defer to the trial court’s direct
knowledge of the facts and familiarity with the offender. Id.
2008] PEOPLE V SMITH 329
DISSENTING OPINION BY CORRIGAN, J.

at 270. Defendant chose a victim who was nine years old

and preyed on her vulnerability and sense of security as a
member of defendant’s household. Contrary to defendant’s
argument on appeal, a review of the sentencing transcript
shows that the trial court did not rely on Carol’s accusa-
tions regarding the prosecutor in determining whether to
depart from the guidelines. Defendant’s argument in this
regard is mere speculation. As the trial court indicated, it is
apparent that the sentencing guidelines were not capable
of adequately accounting for the true seriousness of these
offenses.
Finally, defendant argues that the upward departure
from the recommendation of the guidelines was not pro-
portionate. We disagree. The trial court’s upward depar-
ture was proportionate to defendant and the seriousness of
the offense. The trial court addressed the offender, and the
sentencing transcript demonstrates that the sentence was
individualized. Contrary to defendant’s argument on ap-
peal, lack of a prior record is not sufficient to overcome the
presumption of proportionality. See People v Piotrowski,
211 Mich App 527, 533; 536 NW2d 293 (1995). Moreover,
the circumstances surrounding the instant offenses estab-
lish the serious and reprehensible nature of defendant’s
crimes. Appellate courts should consider whether the cir-
cumstances surrounding a defendant’s conviction place
that defendant in the least or most threatening class with
respect to that particular crime. Milbourn, supra at 654.
The record reveals that defendant engaged in the contin-
ued sexual assault of a minor child on numerous occasions
over a 15 month period. Most of these instances occurred
while the victim’s siblings and mother were in the home.
After a review of the entire record, we conclude that the
sentences imposed by the trial court are proportionate to
the seriousness of the crimes, and thus, do not violate the
principle of proportionality. Babcock, supra at 264, 273.
[People v Smith, unpublished opinion per curiam of the
Court of Appeals, issued July 19, 2007 (Docket No.
267099), pp 4-6.]

CORRIGAN, J. (dissenting). I respectfully dissent. Cir-

cuit Judge Timothy M. Kenny more than adequately
330 482 MICH 292 [July
DISSENTING OPINION BY CORRIGAN, J.

justified the 30-year minimum sentences he imposed for

defendant’s repeated sexual exploitation of his 10-year-
old victim. Indeed, the judge was statutorily authorized
to impose a life sentence for defendant’s crimes.1 Judge
Kenny fully complied with his duty under MCL
769.34(3) to state his reasons for “that departure”
imposed. The statute does not require a trial judge to
chart the sentence imposed for a particular crime by
locating it on an elusive spectrum of hypothetical of-
fenses as the majority today mandates. In effect, the
majority enacts a new, corollary sentencing regime by
extending the sentencing guidelines to apply to depar-
ture sentences. In doing so, the majority’s approach
directly contradicts People v Babcock, 469 Mich 247; 666
NW2d 231 (2003), and People v Fields, 448 Mich 58; 528
NW2d 176 (1995). Babcock applied the Fields Court’s
definition of “substantial and compelling reasons” to
that phrase as it appears in MCL 769.34. Babcock, 469
Mich at 257. The very purpose of requiring a trial judge
to articulate such reasons was to allow for exceptions to
statutorily defined sentences while restricting indi-
vidual judges’ abilities to depart. Fields, 448 Mich at
68-69. Thus, legislatively imposed restrictions on depar-
tures are inherent in the definition of “substantial and
compelling reasons” and provide the safety valve nec-
essary for an appellate court to gauge whether a trial
judge abused his sentencing power. The majority
wrongly concludes that a new, judicially imposed regime
is necessary for meaningful appellate review.
Although the majority’s approach may provide help-
ful guidance to trial judges in some cases, I respectfully
contend that it is not in our power to impose new,
1
Under MCL 750.520b(2), defendant was automatically eligible to
serve a life sentence for each of his three convictions for first-degree
criminal sexual conduct.
2008] PEOPLE V SMITH 331
DISSENTING OPINION BY CORRIGAN, J.

mandatory sentencing requirements that the Legisla-

ture has not chosen to adopt for departures. The
legislative scheme requires appellate courts to review
the record to determine whether the facts support the
departure. It does not require courts to posit a con-
tinuum of hypothetical similar crimes and locate the
sentencing offense on that continuum. Moreover, I fear
that complying with the majority’s proposed require-
ments will be essentially impossible in many cases and
appellate review will not be aided. I would affirm
defendant’s sentences instead of imposing a new layer
of unjustified burdens on the trial bench.
Significantly, I have no qualms with many of the
majority’s general statements. I agree that the trial
court “bears the burden of articulating the rationale for
. . . departure,” that the court “must articulate one or
more substantial and compelling reasons that justify
the departure it made,” and that its articulation “must
be sufficient to allow adequate appellate review.” Ante
at 318. I also agree that, to be proportionate, a mini-
mum sentence that falls outside the guidelines range
“must be more appropriate to the offense and the
offender than a sentence within the guidelines would
have been.” Ante at 318. Further, it may be “appropriate
to justify the proportionality of a departure sentence by
. . . anchoring it in the sentencing guidelines.” Ante at
318 (emphasis added).2 But despite its permissive lan-
2
It also may be helpful to compare sentences in similar cases, as Justice
MARKMAN suggests. I do not oppose trial courts’ attempts to do so. My
central point is that our statutory scheme simply does not require this
exercise. Moreover, because each case is unique, the comparison Justice
MARKMAN advocates may not always be possible or productive. Signifi-
cantly, Justice MARKMAN concedes that his approach may have “some
anecdotal or arbitrary quality . . . . ” Ante at 325. I agree. But I also
question whether case comparisons will become meaningfully less arbi-
trary over time, as Justice MARKMAN supposes, if judges “consider
reasonably similar cases decided by themselves or by geographically
332 482 MICH 292 [July
DISSENTING OPINION BY CORRIGAN, J.

guage,3 the majority effectively mandates its new re-

gime. As is clear from this case, a departure sentence—
indeed, a sentence that is not even the highest possible
for the offense—for a crime that we unanimously agree
is “heinous,” see ante at 310, is being vacated because
the trial court did not comply with the majority’s new
requirements. Accordingly, I dissent both because I
believe that Judge Kenny met the requirement of
articulation in this case and because I think that the
majority poses an overly burdensome and often impos-
sible task on sentencing courts that is outside the
scheme for departures that our Legislature adopted.
The majority acknowledges that, as a reviewing
court, we are bound to give significant deference to a
trial court’s sentencing decisions. Ante at 300. Most
significantly, we review for an abuse of discretion the
trial court’s determination that particular facts are
substantial and compelling reasons for the departure
imposed. Babcock, 469 Mich at 264-265. Babcock suc-
cinctly circumscribed the abuse of discretion standard
of review in this context:
At its core, an abuse of discretion standard acknowl-
edges that there will be circumstances in which there will
be no single correct outcome; rather, there will be more

proximate judges.” Ante at 324-325. Rather, such comparisons have the

potential to increase disparities in local sentencing practices, contrary to
Justice MARKMAN’s stated goal of statewide consistency in guidelines
sentencing. Thus, Justice MARKMAN’s position that judges should compare
similar cases before imposing a sentence outside the guidelines range,
which would likely lead to inconsistent sentencing practices in regions
throughout the state, is inconsistent with his position that courts should
ensure uniform sentences.
3
The majority explicitly states that a trial court “is not required to
consider where a defendant’s sentence falls on the sentencing range
grid,” and that appellate review is merely “aided” when a court compares
its reasons for departure to facts describing a real or hypothetical crime
meriting the same sentence. Ante at 309, 310.
2008] PEOPLE V SMITH 333
DISSENTING OPINION BY CORRIGAN, J.

than one reasonable and principled outcome. When the

trial court selects one of these principled outcomes, the
trial court has not abused its discretion and, thus, it is
proper for the reviewing court to defer to the trial court’s
judgment. An abuse of discretion occurs, however, when the
trial court chooses an outcome falling outside this prin-
cipled range of outcomes. [Id. at 269 (emphasis added;
citations omitted).]

In Babcock, we thoroughly analyzed the distinct duties

of the trial court and reviewing court. In rejecting de
novo review and adopting the abuse of discretion stan-
dard, we observed: “Because of the trial court’s famil-
iarity with the facts and its experience in sentencing,
the trial court is better situated than the appellate court
to determine whether a departure is warranted in a
particular case.” Id. at 268. We further stated:
The structure and content of the sentencing guidelines,
as well as the organization of the appellate system itself,
plainly reveal the Legislature’s recognition that the trial
court is optimally situated to understand a criminal case
and to craft an appropriate sentence for one convicted in
such a case.

* * *

It is clear that the Legislature has imposed on the trial

court the responsibility of making difficult decisions con-
cerning criminal sentencing, largely on the basis of what
has taken place in its direct observation. [Id. at 267-268.]

The trial court’s preeminence in the sentencing arena is

reflected in the plain language of the statutory sentenc-
ing scheme, which provides that the court “may” depart
from the appropriate range, MCL 769.34(3), and may
even depart on the basis of an offense characteristic
taken into account by the guidelines if the court con-
cludes that the guidelines give it inadequate or dispro-
334 482 MICH 292 [July
DISSENTING OPINION BY CORRIGAN, J.

portionate weight, MCL 769.34(3)(b). Babcock, 469

Mich at 267-268. MCL 769.34(11) provides a basis for
the appellate court’s role:
If, upon a review of the record, the court of appeals finds
the trial court did not have a substantial and compelling
reason for departing from the appropriate sentence range,
the court shall remand the matter to the sentencing judge
or another trial court judge for resentencing under this
chapter. [MCL 769.34(11) (emphasis added).]

Accordingly, an appellate court’s task is to review the

record to determine whether the facts support the
departure. Remand for resentencing is warranted only
if the record does not support the departure.4
The majority’s current decision is inconsistent with
MCL 769.34, Babcock, and Fields. The text of MCL
769.34(3) bears repeating:
4
I agree with the majority that “appellate courts may not review the
record to search for reasons to uphold a sentence that the trial court
failed to justify.” Ante at 314 n 50, citing Babcock, 469 Mich at 258-259.
Rather, an appellate court reviews the record to determine whether
the record supports the trial court’s reasons for departure. My central
point is that an appellate court’s role is to review the record for an
abuse of discretion, not to legally analyze the trial court’s attempts to
derive the departure from the guidelines or analogize it to other cases.
Indeed, although Justice MARKMAN accuses me of promoting merely
“rudimentary appellate review,” ante at 322, my fear is that the
majority’s formula will promote incomplete scrutiny of departure
sentences. Instead of carefully reviewing the entire record to deter-
mine whether a trial court’s sentence falls outside the range of
principled outcomes, under the majority’s view an appellate court can
restrict itself to the sentencing transcript to check for an adequate
quantitative argument or comparison to other cases. By permitting
appellate courts to restrict their review to the sentencing transcript
and a comparison with other cases, rather than requiring a complete
review of the facts as recounted in the entire record, the majority
permits what resembles de novo review of a legal question, which we
explicitly rejected for departure sentences in Babcock in favor of the
abuse of discretion standard.
2008] PEOPLE V SMITH 335
DISSENTING OPINION BY CORRIGAN, J.

A court may depart from the appropriate sentence range

established under the sentencing guidelines set forth in
chapter XVII if the court has a substantial and compelling
reason for that departure and states on the record the
reasons for departure. [MCL 769.34(3).]

Thus, the sentencing court is obligated to have “a

substantial and compelling reason for that departure”
and to “state[] on the record the reasons for departure.”
As I explained in my partial dissent to the Babcock
decision, these are the sole elements that the statute
requires to justify a departure sentence. Babcock, 469
Mich at 275 (CORRIGAN, J., dissenting in part). The
Babcock majority went further than I would have,
imposing a burden of articulation that is absent from
the statute. See id., part III(C), at 258-261. Signifi-
cantly, however, even the majority agreed that “[a]l-
though the trial court must articulate a substantial and
compelling reason to justify its departure, the trial court
is not required to use any formulaic or ‘magic’ words in
doing so.” Id. at 259 n 13 (emphasis added). Indeed, the
majority explicitly counseled that the trial court need
not “explain why it chose a twelve-month departure as
opposed to an eleven-month departure (or indeed as
opposed to any one of countless other potential depar-
tures).”5 Id. at 260 n 14. Rather, “however it is articu-
lated, the quality of the trial court’s statement must be
sufficient to allow for effective appellate review.” Id. at
5
I agree with Justice MARKMAN that “there is a considerable difference
between a 16-year and a 30-year minimum sentence.” Ante at 321. But,
as Babcock explicitly counsels, a trial court is not required—and indeed
may not be able—to precisely quantify the reasons for the precise
departure sentence imposed. Still, in choosing not to impose such a
requirement, the statutory scheme does not “essentially exempt . . . that
part of a potential criminal sentence lying outside the guidelines
range . . . from even rudimentary appellate review.” Ante at 322. Record
review of the reasons for departures is anything but rudimentary, as our
work in this case itself most poignantly and painfully illustrates. Appel-
336 482 MICH 292 [July
DISSENTING OPINION BY CORRIGAN, J.

259 n 13. The current majority cites its decision in

Babcock and claims: “We do not suggest that trial courts
must sentence defendants with mathematical cer-
tainty.” Ante at 311. Yet the majority now requires math-
ematical charting and magic words. In doing so, it aban-
dons the abuse of discretion standard inherent in
appellate courts’ review of trial courts’ sentencing deci-
sions. Instead of acknowledging that there will always be
a range of principled outcomes, the majority requires a
trial court to impose sentences with precision and locate
each sentence on an elusive scale of possible sentences for
the underlying conviction. No longer must a reviewing
court “proceed with a caution grounded in the inherent
limitations of the appellate perspective.” Id. at 270.
Requiring precise comparisons of sentences for differ-
ent hypothetical crimes and offenders also establishes a
task for trial courts that is both potentially impossible and
unnecessary to limit their discretion or facilitate review.
The Legislature affirmatively chose to limit trial courts’
discretion by requiring them to articulate “substantial
and compelling reasons.” The phrase “substantial and
compelling” had become a legal term of art which origi-
nated from this Court’s definition in Fields. Babcock, 469
Mich at 257. Fields established—on the basis of defini-
tions of the words “substantial” and “compelling”—that
such reasons must “ ‘keenly’ or ‘irresistibly’ grab our
attention” and be “ ‘of considerable worth’ in deciding the
length of a sentence.” Fields, 448 Mich at 67. Such
reasons also must be “objective and verifiable.” Id. at 68.
Requiring reasons for departure to be objective and veri-
fiable “maintain[s] the limited but moderating effect
intended by the Legislature” in allowing for departures.
late courts are fully capable of fulfilling their task of reviewing the record
to discern whether the facts support the departure as an appropriate
exercise of discretion.
2008] PEOPLE V SMITH 337
DISSENTING OPINION BY CORRIGAN, J.

Id. The standard “allows judges to consider many of the

factors traditionally utilized in formulating sentences”
while “also provid[ing] sufficient restrictions to assure
that the Legislature’s intent . . . will not be subsumed by
the use of what is intended to be an exception to the
rule . . . .” Id. at 68-69. Thus, the standard itself embodies
limits for departure that appellate courts are capable of
reviewing. It is no accident, therefore, that the trial court
need only articulate “substantial and compelling reasons”
for a departure sentence to survive review under MCL
769.34(11) (resentencing is appropriate only if “the court
of appeals finds the trial court did not have a substantial
and compelling reason for departing from the appropriate
sentence range”). More is unnecessary because the range
of substantial and compelling reasons is inherently lim-
ited. As I will explain further, this standard also reflects
the potential impossibility of articulating reasons for a
particular number of months or years of departure in any
meaningful, reviewable way.
Although the majority calls for uniformity among
departure sentences, ante at 311-312, 314, the majority
cites no controlling statutory provision prescribing the
methods it requires to achieve such uniformity. The
majority cites only MCL 769.33(1)(e)(iv), which has
been repealed. 2002 PA 31. Moreover, this repealed
statutory provision merely provided direction to the
Sentencing Commission regarding ways to modify the
sentencing guidelines. It did not delineate a judge’s
duties in imposing a sentence outside of the guidelines.
Further, although MCL 769.33(1)(e)(iv) provided that
the Sentencing Commission should develop modifica-
tions to the sentencing guidelines that “[r]educe sen-
tencing disparities,” it did not require the standard of
uniformity envisioned by the majority for sentences
outside the guidelines range. Because of their unusual
nature, departure sentences are not governed by the
338 482 MICH 292 [July
DISSENTING OPINION BY CORRIGAN, J.

general rule of uniformity applied to those more com-

mon offenses that fit within the mold of the guidelines.
“Departure” is defined, in pertinent part, as “diver-
gence or deviation, as from a standard or rule.” Ran-
dom House Webster’s College Dictionary (2001). Thus,
departure sentences should by definition be governed
by a different standard than sentences within the
guidelines range. By choosing to permit judges to “de-
part” from the guidelines range for unusual offenses,
the Legislature contemplated a less stringent standard
of uniformity for unusual offenses, which should be-
cause of their nature be treated differently.6 Departure
sentences generally involve less quantifiable7 facts that
are not adequately covered by the normative guide-
lines.8 In Babcock, 469 Mich at 264, this Court ex-
6
I agree with the majority that appellate courts should not impose a less
stringent standard of review (i.e., abuse of discretion) on departure sen-
tences, ante at 315 n 51, but I disagree that the Legislature intended to bind
trial courts departing from the sentencing guidelines range to the standard
of uniformity required for sentences within the guidelines.
7
Justice MARKMAN argues that the facts in cases involving departure
sentences are just as quantifiable as the facts in cases in which the
sentence is within the guidelines. If the facts of a case are quantifiable,
however, then they can be scored adequately by the offense and prior
record variables, thus resulting in a sentence within the guidelines
range. It is when objective and verifiable factors exist that cannot
adequately be scored by the offense and prior record variables (i.e.,
they are not adequately quantifiable) that a departure sentence
results. Thus departure sentences by their nature involve less quan-
tifiable facts than sentences within the guidelines.
8
Moreover, the majority does not acknowledge the extent to which the
standards for departure sentences parallel those for guidelines sentences.
The majority fears that my view would lead to “[a]ny arguably reasonable
sentence [being] upheld.” Ante at 314. I conclude that this is precisely what
the Legislature intended for both departure sentences and nondeparture
sentences. Departure sentences are constrained by the statutory maximum
and the rule requiring that a minimum sentence not exceed 2/3 of the
maximum, MCL 769.34(2)(b). Within this range, a departure sentence is
reasonable if it is supported by a substantial and compelling reason. MCL
2008] PEOPLE V SMITH 339
DISSENTING OPINION BY CORRIGAN, J.

plained that a sentencing court departing from the

guidelines range “must consider whether its sentence is
proportionate to the seriousness of the defendant’s
conduct and his criminal history . . . .” (Emphasis
added.) By effectively requiring sentencing courts to
compare the defendant’s conduct and criminal history
to other defendants’ conduct and criminal histories, the
majority has created a standard of uniformity not
required by statute or Babcock.
This case exemplifies the majority’s mistake in re-
quiring trial courts to offer burdensome articulations of
their sentencing decisions mandated neither by MCL
769.34(3) nor precedent from this Court. The facts of
this case clearly reveal that the 30-year minimum
sentence imposed is within the range of principled
outcomes. These facts also reinforce the Babcock
Court’s conclusion that “[t]he deference that is due [to
the trial court under the abuse of discretion standard] is
an acknowledgement of the trial court’s extensive
knowledge of the facts and that court’s direct familiar-
ity with the circumstances of the offender.” Babcock,
469 Mich at 270. The trial court’s sentence is firmly
rooted in the heinous nature of this case, in which the
769.34(3). Similarly, a nondeparture sentence is constrained by the mini-
mum guidelines range. MCL 769.34(2). A sentence is presumptively reason-
able if it falls within this range and must be affirmed. MCL 769.34(10).
Thus, departure and nondeparture sentences are accorded appellate defer-
ence if they fall within the statutorily constrained parameters. Because a
sentencing judge need not justify the exact nondeparture sentence he
imposes within the minimum guidelines range, there is nothing novel about
the Legislature’s decision not to require quantification of a departure
sentence that otherwise complies with the statutory constraints for depar-
ture sentences. Indeed, by requiring quantification of departure sentences,
the majority erects a higher bar for departure sentences with regard to
uniformity than exists for guidelines sentences themselves. This cannot be
the correct result; by design, departure sentences are appropriate in cases
that defy norms and do not easily lend themselves to common offense and
offender characteristics.
340 482 MICH 292 [July
DISSENTING OPINION BY CORRIGAN, J.

child victim effectively became the sexual prisoner of

her adult caretaker and landlord, who threatened to put
the child’s family out into the street if she did not
submit to his abuse.
The single mother of the victim first met defendant
and his wife when the little girl was just over one year
old. The mother sought day care for her daughter and
responded to an ad placed in the paper by defendant’s
wife. Several of his wife’s ads were introduced at trial;
she advertised her babysitting services9 as a “mom away
from home” in a “healthy,” “experienced, loving, clean
environment.” Defendant’s wife cared for the child in
her home intermittently. The child and her younger
sister later began staying with defendant and his wife
(the Smiths) for long stretches, including over whole
summers. The Smiths also took in the children for nine
months when their mother was living in a halfway
house.
The Smiths testified that the child was initially
afraid of everyone or “afraid of men.” But all the
witnesses agreed that, over time, defendant and the
child developed a father-daughter relationship. The
child testified that she loved the Smiths, who sent her
gifts and cards even when she was not in their care.10
The Smiths testified that they began to think of the
child as their own. Defendant, whom she sometimes
called “daddy,” was the only consistent male role model
in her life.
Defendant molested the child over a 15-month period
when she was nine and ten years old. The abuse began
9
Defendant’s wife emphasized at trial that she did not operate a
licensed day care business. She merely wanted to “baby-sit a couple of
children.”
10
The child’s mother frequently moved the family between Michigan
and Georgia.
2008] PEOPLE V SMITH 341
DISSENTING OPINION BY CORRIGAN, J.

when she and her sister moved in with the Smiths

during a summer while their mother was still living in
Georgia and preparing to move the family back to
Michigan. In the fall when she returned to Michigan,
the mother, who was in financial straits, and her infant
son also moved in with the Smiths at the request of
defendant’s wife but over defendant’s objection. Defen-
dant’s abuse of the child continued when defendant’s
wife worked on her computer in the basement11 and the
11
Several witnesses confirmed the child’s testimony that defendant’s
wife spent hours in her basement “office” using her computer during the
evening. Defendant claimed, to the contrary, that he was with his wife
“24 hours a day, seven days a week” because his wife was agoraphobic.
Other points of the Smiths’ testimony clearly belied this claim. For
instance, they did not sleep in the same room; rather, they testified that
she went to bed early and slept in their bedroom while he watched
television and slept in the living room where the abuse took place.
Defendant also denied that his wife had a computer in her basement
office. His wife initially supported his testimony; she claimed that she
used a laptop in the living room and not in the basement. She later
conceded, however, that she used the computer at night in the basement.
These are but some examples of the apparent inconsistencies within and
between defendant’s testimony and that of his wife. The regular inconsis-
tencies, as well as the couple’s behavior at trial, shed light on the trial judge’s
observations at sentencing. For instance, the judge observed that in addition
to sexually abusing the child who had come to utterly trust defendant,
defendant then added to the child’s ordeal by casting her as a liar at trial. In
all, the child was subjected to two trials, and the judge opined that defendant
and his wife attempted to spur a second mistrial by accusing the trial
prosecutor of cocaine use during the lunch breaks. During the second trial,
defendant’s wife engaged in behavior that, after a hearing outside the jury’s
presence, the judge characterized as “stalking” the prosecutor. Defendant’s
wife made repeated calls to state police at the Downriver Area Narcotics
Organization to lodge complaints against the prosecutor and encourage the
officers to investigate. The officers stated that defendant’s wife claimed to
have followed the prosecutor in her car at lunch breaks during the trial (it is
unclear from the transcript whether defendant, who was free on bond, was
with her at these times). His wife reported the prosecutor’s license plate
number and claimed to have seen her using cocaine during the lunch breaks
before returning to the courtroom. When called on by the judge to respond
to the officers’ statements, defendant’s wife denied that she ever told them
342 482 MICH 292 [July
DISSENTING OPINION BY CORRIGAN, J.

child’s mother was either at work or in her bedroom.

When defendant and the child were alone in the living
room watching television and the child was lying down on
the couch, he would put his hand down her pants and use
his fingers to penetrate and rub her genitals and anus. She
testified that defendant’s acts “hurt” and made her feel
like her skin was “stretching.” The child would leave the
room when she could. She testified that she would at-
tempt to move her body away from defendant’s hand, but
he would often stiffen his arm so she could not move.12 On
one occasion, defendant also rubbed himself and made a
“wet spot” on his shorts. On this occasion, he told the
child that he would “kick [her] family out” of the house
if she told anyone about the abuse.
that she followed the prosecutor or reported seeing her use cocaine
and claimed that she only reported her suspicions of drug abuse
because of the prosecutor’s behavior in the courtroom. She claimed
that she only wanted to get the prosecutor some help. Judge Kenny
opined that the timing of her behavior indicated that, at a minimum,
she hoped to cause embarrassment for the prosecutor during the trial
and, likely, she hoped to cause the prosecutor’s arrest and another
mistrial. Judge Kenny clearly surmised that defendant was involved in
some way with these attempts to malign the prosecutor; the judge
ultimately revoked defendant’s bond in an attempt to curb this
disruptive and threatening behavior. The judge characterized the
behavior exhibited by defendant’s wife as “reprehensible,” banned her
from the courtroom, and encouraged the prosecutor to seek a personal
protection order. He opined: “In 31 years . . . working in the criminal
justice system, I have never seen anything . . . that stooped to the
depth of effort to try to tamper with the integrity of this particular
trial or trial process. The only thing that would be worse would be
trying to shoot a witness or the prosecutor.” Indeed, in keeping with
the majority’s approach despite my disagreement with it, on remand I
would note that these events could have been considered under offense
variable (OV) 19, which addresses interference with the administra-
tion of justice but which was not initially scored in this case. Arguably,
even a score for OV 19 would not adequately account for the level of
interference Judge Kenny found in this case.
12
It is worth noting that, according to the record, defendant stands six
feet and two inches tall and weighs between 290 and 311 pounds.
2008] PEOPLE V SMITH 343
DISSENTING OPINION BY CORRIGAN, J.

The child testified that she initially did not tell

anyone what defendant was doing to her because she
was too embarrassed, upset, and afraid of defendant’s
threats to evict her family. Ultimately, about a month
after the last incident of abuse, she asked a friend’s
teenaged brother whether “he would ever hurt a little
girl while they [sic] are sleeping.” She then began
sucking her thumb. Her behavior spurred him to ask
her what was wrong. She revealed the abuse after asking
him not to tell anyone her secret. The boy testified that,
when she told him, he was “in complete shock.” He could
not sleep and concluded that he “couldn’t live with [a
secret] like that.” The next morning, he convinced the
victim to tell his mother and sister about the abuse.13
The boy’s mother then reported the abuse to defen-
dant’s wife and the victim’s mother. The victim told her
mother that the allegations were true. As the victim’s
family gathered their things to immediately leave the
Smiths’ house, defendant’s angry wife accused the
victim’s mother of lying and spat in her face. Defen-
dant, whose wife had repeated the allegations to him,
sat quietly in a chair throughout the ordeal. At trial, he
testified that the child’s allegations were untrue.
After leaving the Smiths’ home, the child’s mother
called the police, who took the child’s statement and
advised her mother to take her to the hospital where
she was examined for signs of sexual abuse. The child
described the complete genital and anal exam as un-
comfortable and embarrassing. The pediatric emer-
gency room doctor who examined her testified that the
child, who was then ten years old, reverted to thumb-
sucking during the exam process.
13
His mother described the victim as “crying and crying” and “shiver-
ing.”
344 482 MICH 292 [July
DISSENTING OPINION BY CORRIGAN, J.

Defendant was charged with three counts of first-

degree criminal sexual conduct involving the sexual
penetration of a child under 13 years old. A brief review
of the defense theory provides a useful background for
the trial judge’s later comments at the sentencing
hearing. The defense initially stressed the questionable
character of the victim’s mother. Defense counsel noted
an allegation made by defendant’s wife that, after the
preliminary examination in this case took place, someone
who sounded like the victim’s mother telephoned her and
asked for $20,000 to make the case “go away.”14 Counsel
14
Very little evidence of this purported call was presented at trial and
defense counsel only mentioned it in passing during his closing argu-
ment. At the time of the call, defendant’s wife did not file a report or
contact the police officers investigating the case. Rather, she stated that
she called a “dispatch” officer who she claimed told her to contact her
phone company and have a tracer placed on her phone. A friend of the
Smiths testified that she was at their home on the day of the call and that
she recognized the voice of the victim’s mother demanding money. She
stated that defendant’s wife had recognized the out-of-state number on
her caller I.D. box and asked the friend to listen on the other line. No
phone company reports or other direct evidence of the call were submit-
ted into evidence. Indeed, the prosecutor argued that defendant’s wife
and her friend fabricated the call, particularly in light of the friend’s
convenient presence when the purported call was made, their failure to
report it to the investigating officers, and their incredible claims that
defendant’s wife was told to put a “tracer” on the phone although the
caller I.D. box purportedly showed the caller’s phone number.
Further, there are obvious similarities between the accusations
made by defendant’s wife against the victim’s mother and those she
made against the prosecutor. Defendant’s trials were rife with his
wife’s constant pattern of implausible accusations against participants
in the case. Judge Kenny was in the best position to gauge any
encouragement of her behavior by defendant. At a minimum, the
record does not reveal any efforts by defendant to curb the behavior.
I note these issues because her behavior formed part of the context of
the trial and sentencing decisions, by their nature, “ ‘grow [] out of,
and [are] bounded by, case-specific detailed factual circumstances.’ ”
Babcock, 469 Mich at 268, quoting Buford v United States, 532 US 59,
65; 121 S Ct 1276; 149 L Ed 2d 197 (2001). To the extent that Judge
2008] PEOPLE V SMITH 345
DISSENTING OPINION BY CORRIGAN, J.

argued that the child’s allegations “could be an imag-

ined thing” and were like a “lie” or a “rumor.” Counsel
also argued that the ten-year-old victim may have made
up the story in order to spend more time with her
friend’s teenaged brother, on whom she may have had a
romantic crush. Counsel further suggested that the
child did not appear traumatized because she continued
to do well at school throughout the ordeal.
The jury found defendant guilty of each of the three
counts of first-degree criminal sexual conduct. The trial
judge imposed a departure sentence of 30 to 50 years’
imprisonment for each count. Judge Kenny’s full rea-
sons for departure are recounted in the majority opin-
ion, ante at 297-298. Judge Kenny stressed that the case
“manifests the absolute worst type of exploitation.”
Over a period of 15 months defendant forced a child
with no other adult males in her life, who was “fearful
of the fact that she may lose the roof over her head for
herself, her mother, and her two siblings,” to “silently
endure” repeated sexual penetrations. Judge Kenny
also noted that the ordeal forced the young victim to
undergo a “frightening gynecological type of examina-
tion certainly adding to the trauma in this particular
case.” Finally, defendant “blame[d] the child” and “cat-
egorize[d] her as a liar.”
As the majority acknowledges, Judge Kenny thus
identified objective and verifiable facts underlying his
sentencing decision, each of which is supported by the
record. Ante at 301-302. Contrary to some of the ma-
jority’s conclusions, however, I conclude that the judge
Kenny concluded defendant was complicit in his wife’s acts, the record
further supports the judge’s observation at sentencing that, in addi-
tion to the incredibly exploitative abuse itself, defendant added to the
child’s ordeal by categorizing her as a liar. Indeed, defendant did so
during two trials and, had his wife spurred a second mistrial, the child
would have been forced to endure a third trial.
346 482 MICH 292 [July
DISSENTING OPINION BY CORRIGAN, J.

also did not abuse his discretion in deciding that these

facts were substantial and compelling reasons to impose
a 30-year departure sentence.15
First, I agree with the majority that Judge Kenny was
not barred from relying on defendant’s exploitation of his
position as a caregiver to the child by MCL 769.34(3)(a),
which prohibits a judge from departing on the basis of a
defendant’s lawful occupation. Ante at 298 n 3. Judge
Kenny appropriately cited defendant’s “cho[ice] to exploit
[his] relationship” with the victim—or to abuse his status
as a “child care provider”—as a reason for departure.
Defendant preyed on a child to whom he became like a
father—and who had no other men in her life to protect
her—by taking advantage of his wife’s solicitation of the
child to their care by advertising a safe environment for
children. By its terms, MCL 769.34(3)(a) could not apply
to this case because defendant was not lawfully employed
as a child care provider; indeed, he and his wife testified
that he was rarely involved with her unlicensed babysit-
ting services. But even if defendant had worked as a child
care provider, his exploitation of that role—as opposed to
the mere fact of his lawful occupation—would be a sound
reason for departure.16
Second, I also agree with the majority’s conclusion that
the gynecological examination underwent by the 10-year-
15
Consistent with my dissent in Babcock, I would affirm defendant’s
sentences because Judge Kenny stated one or more substantial and
compelling reasons for departure and the sentence imposed was not
outside the range of principled outcomes. MCL 769.34(3) and (11) require
no more in order for a departure sentence to survive appellate review.
Babcock, 469 Mich at 274-277 (CORRIGAN, J., dissenting in part). But the
sentence is also sound, and remand is not required, under the majority
opinion in Babcock, as I will explain.
16
MCL 769.34(3)(a) prohibits reliance on the mere fact of a defendant’s
occupation as a reason for departure. It reads in pertinent part: “The court
shall not use an individual’s . . . legal occupation . . . to depart from the
appropriate sentence range.”
2008] PEOPLE V SMITH 347
DISSENTING OPINION BY CORRIGAN, J.

old victim is a substantial and compelling reason to depart

under the circumstances of this case. Ante at 302. This
case involves a 10-year-old girl undergoing the first gyne-
cological exam of her life under the auspices of criminal
investigation. Further, the child’s reversion to thumb-
sucking during the embarrassing, uncomfortable exam
was apparently a noteworthy fact in this case; the experi-
enced pediatric emergency room doctor explicitly remem-
bered this fact and remarked on it at trial. Under these
circumstances, the trial judge reasonably concluded that
the exam “add[ed] to the trauma in this particular case”
and, therefore, was one of several factors that contributed
to his decision to depart from the minimum guidelines.
I strongly disagree, however, with the majority’s con-
clusion that the trial court’s reasons did not justify the
30-year minimum sentence (in the language of MCL
769.34[3], “that departure”) imposed. First, contrary to
the majority’s claim, ante at 302-303 n 21, the judge
clearly stated that he departed in part on the basis of
exploitation of the victim because the level of exploitation
here was not contemplated by the guidelines. Offense
variable (OV) 10 addresses predatory conduct, exploita-
tion of a victim’s age or size, and an offender’s abuse of his
position of authority or domestic relationship to complete
a crime. MCL 777.40. MCL 769.34(3)(b) mandates:
The court shall not base a departure on an offense char-
acteristic or offender characteristic already taken into ac-
count in determining the appropriate sentence range unless
the court finds from the facts contained in the court record,
including the presentence investigation report, that the char-
acteristic has been given inadequate or disproportionate
weight.

Here, the judge listed numerous forms of exploitation

such as defendant’s abuse of a father-daughter type rela-
tionship, the age of the child, the child’s particular vul-
348 482 MICH 292 [July
DISSENTING OPINION BY CORRIGAN, J.

nerability because she had no other males in her life, and

defendant’s act of extorting her silence by threatening
eviction of her whole family. The judge thus concluded
that the case involved the “worst type of exploitation.”
After citing Babcock and commenting on these facts,
Judge Kenny stated that “[t]hese are characteristics that
I think don’t get adequately get covered in the guidelines.”
Thus, the judge did exactly what MCL 769.34(3)(b) and
Babcock require; he explained that the OVs did not give
adequate weight to the exploitation involved in this case.
See Babcock, 469 Mich at 258 n 12. I see absolutely no
justification in MCL 769.34 or Babcock for the majority’s
conclusion that the judge was also required to explicitly
mention OV 10 in order to support his explanation.
Rather, as required by statute, he stated that the offense
“characteristic [of exploitation] has been given inad-
equate or disproportionate weight” by the guidelines.
MCL 769.34(3)(b) (emphasis added). Even if it were nec-
essary to name a particular OV, he referenced OV 10 in an
obvious manner because that OV is entitled “exploitation
of a vulnerable victim.” MCL 777.40(1). Thus, I fail to
understand how the majority is “unable to ascertain
whether he believed the factor was given inadequate
weight.” Ante at 303 n 21. Moreover, I find it hard to
believe that Judge Kenny may have “failed to recognize
that the guidelines consider exploitation,” ante at 303 n
21, not only because he is an experienced trial judge but
because he acknowledged the guidelines range in this case
as scored by the Department of Corrections; the score
plainly included 10 points for OV 10. Requiring more of a
trial judge here amounts to mandating the very sort of
“magic” words that Babcock purported not to require.
Babcock, 469 Mich at 259 n 13. It also runs counter to the
majority’s current claim that “precise” words are not
“necessary . . . to justify a particular departure.” Ante at
311, citing Babcock at 259 n 13.
2008] PEOPLE V SMITH 349
DISSENTING OPINION BY CORRIGAN, J.

In sum, I agree with the Court of Appeals panel that

30-year sentences are well within the range of prin-
cipled outcomes for these heinous acts of abuse.17 The
17
Because of the timing of this case, we also happen to have a unique
window onto whether our Legislature would conclude that a 30-year
sentence is within the range of principled outcomes under these circum-
stances. Effective July 1, 2008, an adult who rapes a child, i.e., commits
first-degree criminal sexual conduct against a child less than 13 years of
age, must be imprisoned for a minimum term of at least 25 years. Such an
offender is also still eligible for a life sentence. MCL 750.520b(2)(b), as
amended by 2007 PA 163. Thus, if defendant had committed these
offenses at a later date, he would be required to serve a minimum
sentence of 25 years or more. Moreover, the 25-year sentence would be
mandatory even if there were no substantial and compelling reasons to
depart upward. Judge Kenny’s reasons for departure would certainly
justify a 30-year minimum sentence (a mere increase of five years from
the mandatory minimum) under the new scheme.
Further, on a national scale, a debate continues regarding whether
capital punishment is an appropriate sentence for child rape. The United
States Supreme Court recently struck down a statute providing for such
punishment when the crime is not also intended to kill the child. Kennedy v
Louisiana, ___ US ___; 128 S Ct 2641; 171 L Ed 2d 525 (2008). But, as
Justice Alito observed in dissent, six states currently permit capital punish-
ment for child rape convictions. Id., ___ US at ___; 128 S Ct at 2665 (Alito,
J., dissenting). Justice Alito also reasonably questions the Kennedy plurali-
ty’s conclusion that there is genuinely a “national consensus” that capital
punishment is inappropriate in such cases. Id. Moreover, although Justice
Kennedy’s lead opinion also cited the absence of capital punishment as a
sanction for child rape in the context of federal criminal law, id., ___ US at
___; 128 S Ct at 2652, the Department of Justice belatedly observed that the
Court was mistaken in this regard; the rape of a child is a capital offense
under the law of the United States Military. See Linda Greenhouse, Justice
Department Admits Error in Not Briefing Court, N.Y. Times, July 3, 2008
<http://www.nytimes.com/2008/07/03/us/03scotus.html> (accessed July 29,
2008). Justice Alito observed:

[T]here are many indications of growing alarm about the

sexual abuse of children. In 1994, Congress enacted the Jacob
Wetterling Crimes Against Children and Sexually Violent Offender
Registration Program, 42 U.S.C. § 14071 (2000 ed. and Supp. V),
which requires States receiving certain federal funds to establish
registration systems for convicted sex offenders and to notify the
public about persons convicted of the sexual abuse of minors. All
350 482 MICH 292 [July
DISSENTING OPINION BY CORRIGAN, J.

trial judge’s stated reasons adequately justify the de-

parture and are sufficient for appellate review. Unlike
the majority, it is not “unclear” to me “why a minimum
sentence of 30 years’ imprisonment is warranted for
this defendant.” Ante at 319. To the contrary, the record
clearly supports the departure. The majority asserts
that I “fail[] to identify where in the record the judge
justified the particular departure imposed,” and that I
“cannot identify it because the trial judge failed to
provide it.” Ante at 312. Such comments exemplify the
majority’s incorrect reading of the statute and what it
requires of the record for a departure sentence to
survive review. The trial court is not required to state
on the record with precision his reasons for the exact
number of months or years he departs above the
guidelines range. Rather, the record must support the
departure. MCL 769.34(11) clearly requires the review-
50 States have now enacted such statutes. In addition, at least 21
States and the District of Columbia now have statutes permitting
the involuntary commitment of sexual predators, and at least 12
States have enacted residency restrictions for sex offenders. [Id.,
___ US at ___; 128 S Ct at 2669-2671 (Alito, J., dissenting).]

He offered the following grim statistics:

From 1976 to 1986, the number of reported cases of child
sexual abuse grew from 6,000 to 132,000, an increase of 2,100%. A.
Lurigio, M. Jones, & B. Smith, Child Sexual Abuse: Its Causes,
Consequences, and Implications for Probation Practice, 59 Sep
Fed. Probation 69 (1995). By 1991, the number of cases totaled
432,000, an increase of another 227%. Ibid. In 1995, local child
protection services agencies identified 126,000 children who were
victims of either substantiated or indicated sexual abuse. Nearly
30% of those child victims were between the age of four and seven.
Rape, Abuse & Incest National Network Statistics, online
at http://www.rainn.org/get-information/statistics/sexual-assault-
victims. There were an estimated 90,000 substantiated cases of
child sexual abuse in 2003. Crimes Against Children Research
Center, Reports from the States to the National Child Abuse and
Neglect Data System, available at www.unh.edu/ccrc/sexual-
abuse/Child%Sexual%Abuse.pdf. [Id., ___ US at ___; 128 S Ct at
2669 n 2.]
2008] PEOPLE V SMITH 351
DISSENTING OPINION BY CORRIGAN, J.

ing court to “review . . . the record” in order to evaluate

whether “the trial court did not have a substantial and
compelling reason for departing.” But, instead of re-
viewing the record to determine whether the facts
justify the departure imposed, the majority searches for
statements quantifying the extent of departure. Despite
its claims to the contrary, the majority requires a
sentencing court to provide a quantitative analysis of
how a particular departure relates to the offense vari-
ables, prior record variables, and sentencing grid. Such
an explanation by the sentencing court may be helpful
to justify a departure in a particular case or to facilitate
appellate review. But this sort of detailed justification is
not required by the Legislature’s statutory scheme,
which only requires a court to “ha[ve] a substantial and
compelling reason for that departure and state[] on the
record the reasons for departure.” MCL 769.34(3).18
18
This Court consistently and rightly criticizes such deviations from
the Legislature’s intent as expressed in its unambiguous statutory text.
For a prime example, this Court rejected courts’ attempts to superimpose
atextual, judicially created rules on unambiguous text in Devillers v Auto
Club Ins Ass’n, 473 Mich 562; 702 NW2d 539 (2005), and Rory v
Continental Ins Co, 473 Mich 457; 703 NW2d 23 (2005). Devillers and
Rory addressed the line of cases beginning with Tom Thomas Org, Inc v
Reliance Ins Co, 396 Mich 588; 242 NW2d 396 (1976), in which courts
allowed for judicial tolling of unambiguous time periods established by
statute and contract. Devillers overruled Lewis v DAIIE, 426 Mich 93;
393 NW2d 167 (1986), because Lewis impermissibly grafted a judicial
tolling doctrine onto a provision of the no-fault act, MCL 500.3145(1),
that plainly afforded claimants one year from the time a loss was incurred
to recover benefits. Devillers at 581. In doing so, Devillers “reaffirm[ed]
the Legislature’s prerogative to set policy and our long-established
commitment to the application of statutes according to their plain and
unambiguous terms to preserve that legislative prerogative.” Id. Indeed,
we appropriately characterized the Lewis Court’s superimposition of
judicial tolling on the unambiguous statute as “crafting its own amend-
ment” of the statute. Id. at 582. In Rory, we similarly overruled the
attempts of Tom Thomas and its progeny to “abrogate unambiguous
contractual terms” using “judicial assessment[s] of ‘reasonableness.’ ”
Rory at 470.
352 482 MICH 292 [July
DISSENTING OPINION BY CORRIGAN, J.

Indeed, the majority today creates a corollary guidelines

scheme for departure sentences from whole cloth and
imports it through a single word—“that”—in MCL
769.34(3) (“that departure”).
The nature of the requirements of the plain text of the
statutes, which the majority’s holding ignores, reflects the
fact that the Legislature continues to grant sentencing
discretion to trial courts, even in the wake of legislatively
enacted sentencing guidelines, because each case is
unique and only the trial judge is directly familiar with the
facts and circumstances of the offense and offender. See
Babcock, 469 Mich at 270. They also reflect the difficulty
of quantifying individualized sentences.
The United States Supreme Court recently provided
guidance concerning how appellate courts may meaning-
fully review sentencing decisions while preserving trial
courts’ sentencing discretion in Gall v United States, 552
US ___; 128 S Ct 586; 169 L Ed 2d 445 (2007). Although
the federal sentencing guidelines differ from the Michigan
scheme and are no longer mandatory, federal judges must
Thus, in both cases we recognized that we lack the power to import our
own enhancements or exceptions when the Legislature or contracting
parties have clearly established a governing regime.
The statutory requirements for imposing and reviewing departure
sentences that we address here are equally clear. The Tom Thomas line
of cases permitted judicial tolling to thwart the clear time periods
circumscribing parties’ duties and rights as established by contract or
statute. Here, the Legislature clearly circumscribes a court’s sentencing
duties by requiring it to articulate substantial and compelling reasons to
depart. And it further directs that appellate review of the departure is
done by analyzing the record, not charting a defendant’s placement on a
continuum. Yet the majority expands these clearly defined duties by impos-
ing judicially created guidelines for departure. By doing so, the majority fails
to recognize that this Court’s duty is to apply the statutory language
“without addition, subtraction, or modification.” Lesner v Liquid Disposal,
Inc, 466 Mich 95, 101; 643 NW2d 553 (2002). “We may not read anything
into an unambiguous statute that is not within the manifest intent of the
Legislature as derived from the words of the statute itself.” Id.
2008] PEOPLE V SMITH 353
DISSENTING OPINION BY CORRIGAN, J.

consult the guidelines and, as in Michigan, a departure

from the specified range is reviewed for an abuse of
discretion. Id. at ___; 128 S Ct at 594. Appellate courts
defer to trial courts’ sentencing discretion in part due to
practical considerations. As the Gall Court observed:
“The judge sees and hears the evidence, makes credibil-
ity determinations, has full knowledge of the facts and
gains insights not conveyed by the record.” Brief for
Federal Public and Community Defenders et al. as Amici
Curiae 16. “The sentencing judge has access to, and greater
familiarity with, the individual case and the individual
defendant before him than the Commission or the appeals
court.” Rita [v United States, ___ US __; 127 S Ct 2456,
2469; 168 L Ed 2d 203 (2007)]. Moreover, “[d]istrict courts
have an institutional advantage over appellate courts in
making these sorts of determinations, especially as they see
so many more Guidelines sentences than appellate courts
do.” Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035,
135 L.Ed.2d 392 (1996). [Id. at ___; 128 S Ct at 597-598.]

While acknowledging that “appellate courts may . . .

take the degree of variance into account and consider
the extent of a deviation from the Guidelines,” the Gall
Court “reject[ed] the use of a rigid mathematical for-
mula that uses the percentage of a departure as the
standard for determining the strength of the justifica-
tions required for a specific sentence.” Gall, 552 US at
___; 128 S Ct at 595. Most significant to our purposes,
the Court observed that mathematical approaches “as-
sume[] the existence of some ascertainable method of
assigning percentages to various justifications.” Id. at
___; 128 S Ct at 596. “The [percentage] formula is a
classic example of attempting to measure an inventory
of apples by counting oranges.” Id.
I fear that the majority today similarly attempts to
measure apples by counting oranges. Although rooting
a departure sentence in the factors considered by the
354 482 MICH 292 [July
DISSENTING OPINION BY CORRIGAN, J.

Michigan sentencing guidelines may be helpful in a

given case, it will often be antithetical to courts’ ability
to exercise their sentencing discretion. For instance,
how can a trial or appellate court measure the extent of
departure appropriate for the level of exploitation
present in this case? Should defendant’s act of extorting
silence from the child—in the words of the majority, of
“forc[ing] the child to choose between reporting the
defendant’s repeated criminal assaults and protecting
her family from homelessness,” ante at 301—be
weighed at twice the maximum score for OV 10? Ten
times that score? I agree with the majority that propor-
tionality is in part rooted in the egregiousness of the
offense, ante at 305, quoting Babcock at 263, and
therefore that relatively higher sentences will be war-
ranted for offenders with lower prior record variable
scores whose egregious crimes nonetheless are not
adequately contemplated by the OV scores, ante at 308.
But I fail to see how Judge Kenny fell short in his
obligation to “comply reasonably with [his] obligations
under the guidelines,” ante at 319, when he explained in
detail his reasons for concluding that this defendant is
precisely such an offender.
Indeed, complying with the majority’s regime will be
essentially impossible in the many cases where trial
courts depart on the basis of unique characteristics that
are not contemplated by the guidelines at all and not
present for comparison in other cases. I respectfully
suggest that here Judge Kenny could do no more than
point to the record of this heinous case of abuse to
explain his reasons for departing under these unique
circumstances. No amount of charting the offense by
reference to the guidelines would reveal a correct de-
parture sentence or departure range because we cannot
quantify the circumstances of this crime or the exploi-
tation involved. Individualized sentencing often simply
2008] PEOPLE V SMITH 355
DISSENTING OPINION BY CORRIGAN, J.

is not amenable to this level of precision and further

articulation by the trial court would not meaningfully
aid in review.19 As stated by Fields and reflected in MCL
769.34(11), the requirement that a trial court state
attention-grabbing, objective and verifiable reasons for
departure itself “provides sufficient restrictions to as-
sure that the Legislature’s intent . . . will not be sub-
sumed by the use of what is intended to be an exception
to the rule . . . .” Fields, 448 Mich at 68-69.
To the extent the majority asserts that its regime is
necessary to facilitate proportionality, it appears to
ignore that the Babcock decision thoroughly considered
the goal of proportionality when it established abuse of
discretion as the appropriate standard for review of
sentencing departures. Ante at 304-305; Babcock, 469
Mich at 261-264. In Gall, the United States Supreme
Court approved of its decision in Koon to adopt an abuse
19
In his partial dissent from the Babcock decision, Justice CAVANAGH
similarly stressed the futility of imposing artificial limitations on a trial
judge’s discretionary sentencing decisions, albeit by rejecting the majori-
ty’s conclusion that reasons for departure must be objective and verifi-
able and suggesting an even more deferential approach. Babcock, 469
Mich at 279 (CAVANAGH, J., dissenting in part). Justice CAVANAGH observed:

[W]hat rises to the level of substantial and compelling is clearly

subjective. “It relates to this defendant and to this sentencing
judge, who is examining this individual and this offense.” [Fields,
448 Mich at 104 (CAVANAGH, J., dissenting)] (emphasis in original).
Thus, the weighing of all the factors and circumstances before the
sentencing court includes inherently subjective inquiries.

Further, . . . [t]here are certain factors, such as a defendant’s

remorse or a defendant’s family support, that may be considered
objective by one sentencing judge and subjective by another. The
dissent in Fields stated, “[t]he better test is whether the sentenc-
ing judge is satisfied that the nature and extent of the defendant’s
remorse [or family support] are substantial and compelling rea-
sons to support a sentencing departure.” Id. at 105. I remain
committed to the position that the “objective” criteria utilized by
this Court is [sic] unworkable. [Id. at 279-280.]
356 482 MICH 292 [July
DISSENTING OPINION BY CORRIGAN, J.

of discretion standard of review. The Gall Court ob-

served: “Even [in Koon] we were satisfied that a more
deferential abuse-of-discretion standard could success-
fully balance the need to ‘reduce unjustified disparities’
across the Nation and ‘consider every convicted person
as an individual.’ ” Gall, 552 US at ___; 128 S Ct at 598
n 8, quoting Koon, 518 US 113 (emphasis added).
Contrary to the majority’s approach, Michigan law—
like federal law—requires simply that a trial court
“adequately explain the chosen sentence to allow for
meaningful appellate review and to promote the percep-
tion of fair sentencing.” Gall, 552 US at ___; 128 S Ct at
597; see also Babcock at 259 n 13 (“[H]owever it is
articulated, the quality of the trial court’s statement
must be sufficient to allow for effective appellate re-
view.”). Because of the intangible nature of sentencing
factors, adequate explanation is all we can ask of trial
courts. Here Judge Kenny complied with the require-
ments of MCL 769.34(3) by stating his intention to
depart and his reasons for departure. He complied with
MCL 759.34(3)(b) by explaining that the guidelines did
not adequately cover the circumstances of the offenses.
He aided appellate review by explaining his reasons for
departure in detail and explicitly recognizing his duties
under Babcock. By requiring still more from trial
judges, the majority now imposes an unreasonably
burdensome task on parties and judges, who will be
required to debate the specific degree to which the
guidelines are over- or under-inclusive of particular
factors and quantify the effect of factors not addressed
by the guidelines. Yet, because these issues are not
easily quantifiable, appellate courts will remain able
only to answer the central questions: does the record
reflect that the trial court had a substantial and com-
pelling reason to depart and, if so, was the sentence
outside the range of principled outcomes? MCL
2008] PEOPLE V SMITH 357
DISSENTING OPINION BY CORRIGAN, J.

769.34(11); Babcock, 469 Mich at 269. The majority

thus assigns litigants and trial judges a time-consuming
and potentially impossible task that is irrelevant to the
statutory directives concerning a trial judge’s substan-
tial and compelling reasons for departure.
I would retain the current, workable standard. As in
the federal context, an appellate court
may consider the extent of the deviation [from the guide-
lines], but must give due deference to the [trial] court’s
decision that the [sentencing] factors, on a whole, justify
the extent of the variance. The fact that the appellate court
might reasonably have concluded that a different sentence
was appropriate is insufficient to justify reversal . . . . [Gall,
552 US at ___; 128 S Ct at 597 (emphasis added).]

This prohibition on an appellate court substituting its

judgment for that of the trial court constitutes the very
heart of the abuse of discretion standard of review.
Because the sentences imposed fall within the range of
reasonable opinions regarding what sentences are ap-
propriate in this case, they do not constitute an abuse of
discretion. Accordingly, I would affirm defendant’s sen-
tences.
358 482 MICH 358 [Dec

In re HULTGREN

Docket No. 136880. Argued October 2, 2008 (Calendar No. 8). Decided
December 17, 2008.
The Judicial Tenure Commission (JTC) filed a formal complaint against
Judge William C. Hultgren of the 19th District Court, alleging several
violations of judicial conduct standards contained in the Michigan
Constitution, the Michigan Court Rules, and the Michigan Code of
Judicial Conduct in connection with his involvement in a debt-
collection proceeding assigned to another judge. The respondent
became involved at the behest of an acquaintance whose business
partner’s cousin, Hussein Dabaja, the defendant in the case, claimed
to be the victim of mistaken identity and required assistance because
of his limited English skills. The Supreme Court appointed retired
District Judge Norma Y. Dotson-Sales to act as master. After a formal
hearing, Judge Dotson-Sales concluded that the charges contained in
the JTC’s complaint were not proven by a preponderance of the
evidence and that the respondent’s conduct did not violate the
relevant provisions of the Michigan Constitution, the Michigan Court
Rules, or the Michigan Code of Judicial Conduct. The JTC, however,
disagreed, concluding that the respondent’s conduct violated Const
1963, art 6, § 30; MCR 9.104(A)(1) through (4); MCR 9.205; and
Canons 1, 2A, and 2C of the Code of Judicial Conduct. A majority of
the JTC recommended that the Supreme Court publicly censure the
respondent and suspend him from exercising his judicial duties for 60
days without pay.
In an opinion by Justice CAVANAGH, joined by Justices WEAVER,
CORRIGAN, and MARKMAN, the Supreme Court held:
The respondent’s actions do not constitute judicial misconduct.
The recommendation of the JTC is rejected and the master’s
findings of fact and conclusions of law are adopted. However, the
respondent’s actions under the circumstances reflected poor judg-
ment, as he himself acknowledged. The respondent is therefore
cautioned to more carefully conform his actions to the rules and
provisions that guide judicial conduct.
Recommendation rejected.
Justice YOUNG, joined by Chief Justice TAYLOR and Justice
KELLY, concurring in part and dissenting in part, agreed that the
2008] In re HULTGREN 359
OPINION OF THE COURT
respondent’s actions do not merit the 60-day suspension recom-
mended by the JTC, but would hold that the respondent’s use of
the prestige of his office to advance the interests of Hussein Dabaja
violated Canon 2C of the Code of Judicial Conduct, and that an
admonition is an adequate sanction under the circumstances.

Paul J. Fischer and Casimir J. Swastek for the

Judicial Tenure Commission.

Philip J. Thomas for William C. Hultgren.

CAVANAGH, J. The Judicial Tenure Commission (JTC)

recommended that this Court sanction respondent,
19th District Court Judge William C. Hultgren, with
public censure and 60 days’ suspension without pay for
judicial misconduct. After considering respondent’s ac-
tions, we conclude that they do not constitute judicial
misconduct.
On July 10, 2007, the JTC filed Formal Complaint
No. 82, alleging that respondent had committed judicial
misconduct in violation of Const 1963, art 6, § 30; MCR
9.104 and MCR 9.205; and the Michigan Code of Judi-
cial Conduct (MCJC), Canons 1, 2A, and 2C.1 This Court
1
Const 1963, art 6, § 30, states in part:

(2) On recommendation of the judicial tenure commission, the

supreme court may censure, suspend with or without salary, retire
or remove a judge for . . . misconduct in office . . . or conduct that
is clearly prejudicial to the administration of justice.
MCR 9.104 states in part:

(A) 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;
360 482 MICH 358 [Dec
OPINION OF THE COURT

(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[.]
MCR 9.205 states in part:

(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:

* * *

(e) misuse of judicial office for personal advantage or gain, or

for the advantage or gain of another . . . .

* * *

(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.
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,
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. . . .
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. . . .

* * *
2008] In re HULTGREN 361
OPINION OF THE COURT

appointed the Honorable Norma Dotson-Sales as the

master to hear the case. The master’s report, issued
on March 31, 2008, states the factual background:
1. Respondent is and has been a sitting 19th District
Court Judge for approximately 15 years.
2. On October 13, 2006, a caller identified as Ali Bey-
doun, telephoned Respondent’s office and requested a 15
minute appointment.
3. On October 16, 2006, Respondent held a meeting in
his court chambers, for approximately 15 minutes, with Ali
(a/k/a Wally) Beydoun and two (2) other men: Hussein
Dabaja and Frank Dabaja (Hussein’s cousin).
4.Prior to October 16, 2006, Respondent had a casual
relationship with Wally Beydoun and did not know the
Dabaja cousins.
5. During the October 16th meeting, it became appar-
ent that Hussein Dabaja (“Hussein”) had difficulty with
the English language and that Frank Dabaja (“Frank”)
apparently attended the meeting to act as a translator for
his cousin.
6. Hussein, through Frank, claimed that he was a
victim of mistaken identify [sic] regarding a credit card
debt that occurred before his entry into the USA. He
presented Respondent with documentation to support his
claim. Said documentation included a passport and social
security card.
7. Respondent requested his secretary, Miss Hunt, to
search the court computer system (i.e., Court Case Register
of Actions) for any cases involving Hussein Dabaja. The
court screen displayed a case titled: Asset Acceptance Cor-

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. . . .
362 482 MICH 358 [Dec
OPINION OF THE COURT

poration v Hussein Dabaja (“Asset Acceptance”) which was

assigned to 19th District Judge Mark W. Somers and
marked “Closed.”
8. The Court Case Register of Actions also indicated
that Plaintiff in the pending matter was represented by
[attorney] Thomas D. Hocking.
9. Respondent telephoned Atty. Hocking’s office, spoke
with Ms. Danielle Groppi, Mr. Hocking’s litigation secre-
tary, and caused a letter and the documents presented to
him by Hussein Dabaja to be faxed to Atty. Hocking. The
letter was written on Respondent’s official 19th District
Court stationery.
10. Respondent had no further contact with the three
men and no contact with the Asset Acceptance matter until
he received two (2) memos, dated December 14, 2006 and
January 2, 2007, from Judge Somers.
11. Respondent had no discussions with Judge Somers
regarding the Hussein Dabaja matter until his receipt of
the above two (2) memos from Judge Somers.
12. On January 3, 2007, Respondent sent a requested
reply to Judge Somers.
13. Formal Complaint No. 82 was filed on July 10, 2007.

The master’s report included the following findings

of fact:
1. The relationship between the Respondent and Ali
Beydoun, at best, was that of “acquaintances.”
2. On October 16, 2006, there was no social, business or
other relationship between the Respondent and Hussein
Dabaja and Frank Dabaja.
3. Respondent’[s] October 16, 2006, meeting with his
constituents was not misconduct.
4. Respondent used poor judgment when he failed to
terminate the October 16th meeting once he discovered
that the subject matter was assigned to another judge.
5. The October 16th meeting was not an ex parte
communication violation.
2008] In re HULTGREN 363
OPINION OF THE COURT

6. Respondent’s telephone call to Atty. Hocking’s office

was not misconduct.
7. Respondent’s actions in writing the Oct. 16th letter
were not that of an intervener. Rather, he acted as a
conduit to prevent a miscarriage of justice.
8. Respondent’s use of the words “a lawyer in a credit
card collection mill” was not misconduct.

The master also made the following conclusions of

law:
1. The charges contained in Formal Complaint No. 82
were not proven by a preponderance of the evidence.
2. Respondent’s conduct in Formal Complaint No. 82 did
not constitute [a] violation of the Michigan Constitution,
1963, as amended, Article 6, Section 30; MCR 9.104; MCR
9.205; or the Code of Judicial Conduct, Canons 1, 2A, 2C, or
3A.

After a public hearing, the JTC rejected the master’s

conclusions of law. It concluded that the facts established
at the hearing demonstrated that respondent had commit-
ted judicial misconduct under all counts of the complaint.
It recommended that respondent be sanctioned by public
censure and 60 days’ suspension without pay.2
MCR 9.225 states, in part, that this Court “shall
review the record of the proceedings and file a written
opinion and judgment, which may accept or reject the
recommendations of the commission . . . .” Having re-
viewed the record in this case, we reject the recommen-
dation of the JTC and adopt the findings of fact and
conclusions of law of the master. In our judgment,
respondent has not committed judicial misconduct. We
2
Two members of the nine-member JTC panel concurred with the
majority’s findings of fact and conclusions of law, but dissented from the
recommended sanction. They believed that respondent should be sanc-
tioned by public censure and a one-year suspension without pay.
364 482 MICH 358 [Dec
OPINION BY YOUNG, J.

also agree with the master, however, that respondent’s

actions under the circumstances reflected poor judg-
ment. Respondent acknowledged this conclusion at the
hearing before the master. Accordingly, we caution
respondent to more carefully conform his actions to the
rules and provisions that guide judicial conduct.

WEAVER, CORRIGAN, and MARKMAN, JJ., concurred with

CAVANAGH, J.

YOUNG, J. (concurring in part and dissenting in

part). I concur with the majority that the respon-
dent’s actions in this case do not merit the 60-day
suspension recommended by the Judicial Tenure
Commission. Under the circumstances, the respon-
dent’s actions merit no more than an admonition.
However, I disagree with and dissent from the ma-
jority’s conclusion that respondent’s actions did not
constitute judicial misconduct. I believe that the
respondent’s actions constituted a clear violation of
Canon 2C, as respondent unquestionably used the
prestige of his office to advance the interests of
Hussein Dabaja. Respondent contacted, both by tele-
phone and in writing, the attorney executing a col-
lection judgment against Hussein Dabaja, each time
identifying himself as a judge of the 19th District
Court.
The facts of this case are compelling, and it is easy to
understand why a judge might choose to become in-
volved to prevent what clearly appeared to be a case of
mistaken identity and a miscarriage of justice. Hussein
Dabaja, along with two other men, came to respon-
dent’s office seeking respondent’s assistance. A default
judgment had been entered against Dabaja, an immi-
2008] In re HULTGREN 365
OPINION BY YOUNG, J.

grant who spoke very little English, for a debt that

plainly belonged to another man who shared the iden-
tical name.3
When respondent asked his secretary to locate the
case, the computer entry indicated that a default judg-
ment had been entered against Hussein Dabaja seven
years earlier and that the case was currently closed. In
his brief, respondent claims that because the computer
indicated that the file was closed, respondent had “no
indication that any post-judgment proceedings had
been reinitiated against Hussein Dabaja.”
However, I believe that the mere presence of three
men appearing in his office seeking respondent’s assis-
tance for a “closed” file should have put respondent on
notice that some type of postjudgment proceeding might
have been in progress.4 In fact, respondent’s letter to
Attorney Hocking, the attorney prosecuting the collec-
tion action against Hussein Dabaja, indicates respon-
dent’s actual awareness that collection efforts were
underway. In his letter to the collection attorney, re-
spondent stated that “[t]he Hussein A. Dabaja that is
being pursued for collection purposes has a different
3
The debt for medical equipment was incurred in 1986, two years
before Hussein Dabaja immigrated to the United States. Moreover,
Hussein Dabaja had a different social security number, different birth-
date, and different maternal name than the debtor.
4
Indeed, collection proceedings occurred contemporaneously with
respondent’s correspondence with attorney Thomas D. Hocking. In a
2008 hearing to set aside the 1999 default judgment, Judge Mark W.
Somers indicated that an order of judgment was signed by the court in
August 2006 against Hussein Dabaja and his business, H & G
Marathon. Two separate requests and orders to seize property from
Hussein Dabaja and his business were signed by the court at the end
of September 2006. Hussein Dabaja filed objections to the garnish-
ments on November 16, 2006, and those objections were denied by the
court on December 8, 2006. Respondent’s correspondence to Attorney
Hocking was dated October 16, 2006.
366 482 MICH 358 [Dec
OPINION BY YOUNG, J.

mother than the Hussein A. Dabaja that actually in-

curred the debt.” Thus, while the fact that respondent
inquired into the status of the case and it was listed as
“closed” in the court’s computer records is a mitigating
factor, that factor is undercut by the circumstances of
the case, as well as respondent’s letter.
The second sentence of Canon 2C is quite clear, and
contains no exceptions or exclusions: “A judge should
not use the prestige of office to advance personal
business interests or those of others.” Respondent
intervened twice on behalf of Hussein Dabaja, both
times in his capacity as a judge. I conclude that respon-
dent’s actions constituted judicial misconduct under the
plain language of the canon. That respondent was
acting to prevent a miscarriage of justice is a mitigating
factor to be considered when formulating the appropri-
ate sanction, but it simply does not excuse respondent’s
frank noncompliance with the Michigan Code of Judi-
cial Conduct.
While few judges would be unmoved by the miscar-
riage of justice revealed to respondent, Canon 2C was
drafted with an understanding of the coercion inherent
in the advocacy of a judge intervening as a judge on
behalf of another. It is for this reason that the canon
states that a judge “should not use the prestige of office
to advance personal business interests or those of
others.” The majority gives no meaning to this injunc-
tion, and, in so doing, eliminates the bright line of
ethical behavior set forth in Canon 2C. As I believe the
canon states a sensible restriction on “judicial
advocacy”—a term that is oxymoronic—the canon
should be consistently enforced for the protection of the
public and as a reminder to judges that they cannot be
advocates for the personal business interests of others,
even for worthy causes.
2008] In re HULTGREN 367
OPINION BY YOUNG, J.

Under the majority’s formulation, which concludes

that no judicial misconduct occurred, a sufficiently
compelling reason for using the prestige of judicial
office to advance the business interests of others appar-
ently amounts to no violation at all. Because the major-
ity concludes that respondent’s actions did not consti-
tute judicial misconduct, I dissent. I concur, however,
with the majority’s rejection of the 60-day suspension
recommended by the Judicial Tenure Commission. I
believe that an admonition is an adequate sanction
under the facts of this case.

TAYLOR, C.J., and KELLY, J., concurred with YOUNG, J.

368 482 MICH 368 [Dec

PEOPLE v TAYLOR
PEOPLE v KING
PEOPLE v SCARBER

Docket Nos. 135666, 135683, and 135692. Decided December 19, 2008.
Eric Taylor, Robert L. King, and Marlon Scarber were convicted in
the Wayne Circuit Court, Annette J. Berry, J., of multiple crimes in
connection with the kidnapping and murder of Fate Washington.
Taylor and King were convicted by the same jury, while Scarber
was given a separate jury so that Scarber’s out-of-court statements
to a friend, in which Scarber described the circumstances of the
crimes and identified King as Washington’s killer, could be placed
into evidence. All three defendants appealed. After consolidating
the cases, the Court of Appeals, ZAHRA, P.J., and WHITE and
O’CONNELL, JJ., set aside, on double-jeopardy grounds, King’s
convictions and sentences for second-degree murder and kidnap-
ping and Taylor’s conviction and sentence for kidnapping. The
Court affirmed all the other convictions and sentences. Specifi-
cally, the Court rejected King’s argument that the trial court erred
by failing to consider the reliability of Scarber’s out-of-court
statements before ruling that their admission would not violate
King’s right of confrontation, notwithstanding the fact that King
could not cross-examine Scarber about the statements. The Court
held that the statements in question were admissible under the
hearsay exception for statements against the declarant’s penal
interest, MRE 804(b)(3), and that the statements bore sufficient
indicia of reliability under the analysis in People v Poole, 444 Mich
151 (1993), to avoid violating King’s right of confrontation. Un-
published opinion per curiam of the Court of Appeals, issued
November 29, 2007 (Docket Nos. 273443, 273543, and 273955).
The defendants sought leave to appeal in the Supreme Court.
In lieu of granting leave to appeal, in an opinion per curiam
signed by Chief Justice TAYLOR and Justices WEAVER, CORRIGAN,
YOUNG, and MARKMAN, the Supreme Court held:
Insofar as People v Poole, 444 Mich 151 (1993), held that the
admissibility of a codefendant’s nontestimonial hearsay statement
is governed by both MRE 804(b)(3) and the Confrontation Clause
2008] PEOPLE V TAYLOR 369

of the United States Constitution, it is no longer good law. The

admissibility of nontestimonial hearsay is governed solely by MRE
804(b)(3).
1. The portion of Poole pertaining to the requirements of the
Confrontation Clause is no longer good law because it was pre-
mised on Ohio v Roberts, 448 US 56 (1980), which has been
overruled by Crawford v Washington, 541 US 36 (2004), and Davis
v Washington, 547 US 813 (2006). Crawford held that, where
testimonial evidence is at issue, the Confrontation Clause requires
the unavailability of the declarant and a prior opportunity for
cross-examination. Under Davis, evidence that is nontestimonial
is subject to traditional rules limiting the admissibility of hearsay,
but does not implicate the Confrontation Clause.
2. The codefendant made the challenged hearsay statements
informally to an acquaintance, not during a police interrogation or
other formal proceeding. Accordingly, the statements were nontes-
timonial, and their admission is governed solely by MRE 804(b)(3).
Although the Court of Appeals engaged in a Confrontation Clause
analysis, it reached the correct result by sufficiently addressing the
issue of the statements’ admissibility under MRE 804(b)(3).
Affirmed.
Justice CAVANAGH, joined by Justice KELLY, concurring in part
and dissenting in part, agreed that Poole is no longer controlling
law to the extent it relied on Roberts, but would grant leave to
reconsider the validity of Poole in light of the United States
Supreme Court’s decision in Williamson v United States, 512 US
594 (1994), which held that the federal counterpart of MRE
804(b)(3) does not allow admission of non-self-inculpatory state-
ments, even if they are made within a broader narrative that is
generally self-inculpatory, and particularly if the statement impli-
cates someone else.

EVIDENCE — HEARSAY — STATEMENTS AGAINST INTEREST — INCULPATION OF

ACCOMPLICES — CONFRONTATION OF WITNESSES — RIGHT OF CONFRONTA-
TION.

The admissibility of nontestimonial hearsay is governed solely by

MRE 804(b)(3) and does not implicate a defendant’s constitutional
right to confront witnesses (US Const, Am VI; MRE 804[b][3]).

Michael A. Cox, Attorney General, B. Eric Restuccia,

Solicitor General, Kym L. Worthy, Prosecuting Attor-
ney, Timothy A. Baughman, Chief of Research, Train-
ing, and Appeals, and Thomas M. Chambers, Assistant
Prosecuting Attorney, for the people.
370 482 MICH 368 [Dec
OPINION OF THE COURT

Eric Taylor, in propria persona.

PER CURIAM. In this case, two juries convicted three

defendants of multiple crimes related to the kidnapping
and murder of Fate Washington. Defendant Robert L.
King argues that the inculpatory statements of codefen-
dant Marlon Scarber, admitted through the testimony of
an acquaintance, violated the rules of evidence and King’s
right of confrontation under People v Poole, 444 Mich 151;
506 NW2d 505 (1993). In lieu of granting leave to appeal,
we hold that, insofar as Poole held that the admissibility of
a codefendant’s nontestimonial hearsay statement is gov-
erned by both MRE 804(b)(3) and the Confrontation
Clause of the United States Constitution, it is no longer
good law. We nevertheless affirm the decision of the Court
of Appeals because we conclude that the Court sufficiently
addressed the issue of the statements’ admissibility under
MRE 804(b)(3). We deny defendants’ applications for
leave to appeal in all other respects.

I. FACTS AND PROCEDURAL HISTORY

The Court of Appeals summarized the facts of this

case as follows:
The victim, Fate Washington, was sitting in the driver’s-
side seat of his Ford Expedition on the street outside his
house. He had just finished speaking with a neighbor when
defendant Scarber and an unidentified man, both clad in
black, approached the vehicle and forced Washington, at
gunpoint, further into the vehicle. Both the neighbor and
Washington’s adult son, who was near a window inside the
house, witnessed the scene. Washington scuffled with the
men long enough that the neighbor was able to run home,
retrieve a handgun, and open fire on the vehicle from his
front porch. The eyewitnesses verified that Scarber
climbed into the driver’s seat while a second vehicle[,]
driven by defendant King, rolled up and opened fire on the
2008] PEOPLE V TAYLOR 371
OPINION OF THE COURT

neighbor with an automatic rifle. Other witnesses con-

firmed that the tandem of vehicles sped off through the
streets after the shots were fired. Soon afterward, defen-
dant King forced Washington to make a series of calls
demanding ransom in return for his life.
A former friend of Scarber’s and associate of [Taylor and
King], Troy Ervin, provided a detailed account of events
after Washington was taken captive. The group took Wash-
ington to a house owned by Ervin’s sister, and defendant
King persuaded Ervin to trade cars with him for a while.
When Ervin visited the house, he was initially denied
access into the home. Scarber later called him and told him
that he and the other defendants had kidnapped Washing-
ton and held him at the house. Scarber explained that
Taylor had helped and that King had shot at the man’s
defenders. Scarber also admitted that he almost blew
himself up burning the man’s vehicle. This information
was confirmed at trial by a witness who heard a large
explosion that night and saw a vehicle, later identified as
Washington’s Expedition, on fire outside her home. Ervin
visited the house again and found Washington lying on the
floor of a back room wearing nothing but a sheet. Taylor
guarded the man with an automatic rifle like the one
described by witnesses to Washington’s capture, and King
was armed with a handgun like the one Scarber had used.
While Ervin was there, he heard Taylor deny Washington’s
request to use the phone again to make more ransom calls.
Ervin left, but returned again later after Scarber called
and told him that King had shot Washington in the legs and
he had bled to death. Ervin was agitated at finding that
Washington was killed in his sister’s house, because it
associated him with the murder. He saw the dead body in
the back room, and then he went to the hardware store for
King and purchased tools for burying the body. After he
dropped off the tools, he was again called and informed that
the group had buried the body in the back yard of the
property. Ervin was again agitated at the use of his sister’s
property, but Taylor assured him that the burial site was
inconspicuously concealed by the doghouse and the body
was secure under a layer of concrete. Searchers later found
372 482 MICH 368 [Dec
OPINION OF THE COURT

the body buried as Ervin described it. The body was found
with two gunshot wounds, one through each leg.
Upon hearing that Ervin, who was not charged with a
crime, had made a statement to police about Washington’s
murder, defendant Scarber also decided to make a statement.
Except for Scarber’s self-serving insistence that he partici-
pated in the crimes under duress and tried to care for
Washington by bandaging his first gunshot wound and bring-
ing him water, Scarber’s statement to police was remarkably
consistent with Ervin’s. Scarber’s statement confirmed the
details of a successful ransom recovery that involved a pecu-
liar delivery method, a particular mailbox, and a relatively
small amount of money and drugs. Scarber’s statement
described defendant King as Washington’s killer, and ex-
plained that, before he shot Washington a second time, King
expressed a frustrated lack of concern with Washington’s life
and an unabashed willingness to kill him. Because the pros-
ecutor wanted to place defendant Scarber’s statement into
evidence, Scarber received a separate jury for the purpose,
isolating defendant King’s and defendant Taylor’s jury from
Scarber’s blame-shifting account of Washington’s captivity.
[People v Taylor, unpublished opinion per curiam of the Court
of Appeals, issued November 29, 2007 (Docket Nos. 273443,
273543, and 273955), at 2-3.]

A jury convicted King and Taylor of second-degree

murder,1 MCL 750.317; first-degree felony murder,
MCL 750.316(1)(b); kidnapping, MCL 750.349; and
possession of a firearm during the commission of a
felony, MCL 750.227b. It also convicted King of armed
robbery, MCL 750.529, but acquitted Taylor of armed
robbery. The trial court sentenced King to life impris-
onment for the first-degree felony murder conviction,
25 to 80 years for the second-degree murder, armed
robbery, and kidnapping convictions, and two years for
the felony-firearm conviction. It sentenced Taylor to life
1
Both were charged with first-degree premeditated murder, but the
jury convicted them of the lesser offense of second-degree murder.
2008] PEOPLE V TAYLOR 373
OPINION OF THE COURT

imprisonment for the first-degree murder conviction,

25 to 80 years for the kidnapping conviction, and two
years for the felony-firearm conviction.2
A separate jury convicted defendant Scarber of first-
degree premeditated murder, MCL 750.316(1)(a); felony
murder; armed robbery; kidnapping; felony-firearm;
and felon in possession of a firearm, MCL 750.224f. The
trial court sentenced him to life imprisonment for the
premeditated murder conviction, 38 to 80 years for the
armed robbery and kidnapping convictions, and two
years for the felony-firearm conviction.3
After consolidating defendants’ appeals, the Court of
Appeals affirmed Scarber’s convictions and sentences,
but set aside King’s second-degree murder and kidnap-
ping convictions and Taylor’s kidnapping conviction on
double jeopardy grounds.4 All three defendants sought
leave to appeal in this Court.
2
The trial court vacated Taylor’s second-degree murder conviction on
double jeopardy grounds.
3
The trial court vacated Scarber’s felony-murder conviction on double
jeopardy grounds and dismissed his felon in possession conviction with-
out explanation.
4
The Court reasoned that King could not be convicted of both
first-degree and second-degree murder of the same person. With respect
to King’s kidnapping conviction, the Court ruled that either the kidnap-
ping conviction or the armed robbery conviction was the predicate felony
for the felony-murder conviction, so setting aside the kidnapping convic-
tion meant that King would only receive one punishment for the
kidnapping conviction (his sentence for felony murder), and then could
be separately punished for armed robbery. The Court set aside Taylor’s
kidnapping conviction using the same reasoning (the only difference is
that Taylor was acquitted of armed robbery). Taylor, supra at 3-5. We
note that because the Court of Appeals issued its opinion in this case
before we issued our opinion in People v Ream, 481 Mich 223, 225; 750
NW2d 536 (2008) (holding that “convicting and sentencing a defendant
for both felony murder and the predicate felony does not necessarily
violate the ‘multiple punishments’ strand of the Double Jeopardy
Clause”), the Court did not have the benefit of our holding in Ream when
it decided this case.
374 482 MICH 368 [Dec
OPINION OF THE COURT
II. ANALYSIS

Defendant King challenges the trial court’s admission,

through Ervin’s testimony,5 of defendant Scarber’s state-
ments to Ervin that (1) Scarber, King, and Taylor had
kidnapped Washington and were holding him at the house
owned by Ervin’s sister and that (2) King had shot
Washington once in each leg, causing him to bleed to
death. King argues before this Court, as he did before the
Court of Appeals, that Scarber’s statements to Ervin were
inadmissible hearsay and that the trial court erred in
failing to consider their reliability before holding that the
statements would not violate the Confrontation Clause.
The Court of Appeals held that the rules of evidence did
not preclude admission of the statements because they fell
within the hearsay exception for statements against the
declarant’s penal interest, MRE 804(b)(3). Taylor, supra
at 5. It also held that the trial court’s failure to analyze the
reliability of the statements was harmless because the
statements bore sufficient indicia of reliability under the
factors articulated in Poole, supra at 165, and they there-
fore did not violate King’s right of confrontation. Taylor,
supra at 5-6.
We hold that the portion of Poole pertaining to the
requirements of the Confrontation Clause is no longer
good law because it was premised on Ohio v Roberts,
448 US 56; 100 S Ct 2531; 65 L Ed 2d 597 (1980), which
has been overruled by Crawford v Washington, 541 US
36; 124 S Ct 1354; 158 L Ed 2d 177 (2004), and Davis v
Washington, 547 US 813; 126 S Ct 2266; 165 L Ed 2d
224 (2006). Because the hearsay statements in this case
were nontestimonial, they do not implicate the Con-
frontation Clause, Davis, supra at 821, and their admis-
sibility is governed solely by MRE 804(b)(3). We never-
5
As a codefendant, Scarber was not available to testify at trial.
2008] PEOPLE V TAYLOR 375
OPINION OF THE COURT

theless affirm the decision of the Court of Appeals on

the basis of the Court’s determination that the state-
ments were admissible under MRE 804(b)(3).
The Confrontation Clause provides that “[i]n all
criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against
him.” US Const, Am VI. This Court’s Confrontation
Clause analysis in Poole was predicated on the Confron-
tation Clause analysis articulated by the United States
Supreme Court in Roberts. In Roberts, the Court con-
sidered the relationship between the Confrontation
Clause and the hearsay rule. It held that the Confron-
tation Clause limits the scope of admissible hearsay in
two ways: first, it generally requires the prosecution to
either produce the declarant or demonstrate that he is
unavailable; second, it requires that the statement bear
certain “indicia of reliability.” Id. at 65-66. The Court
further held that “[r]eliability can be inferred without
more in a case where the evidence falls within a firmly
rooted hearsay exception.” Id. at 66. Otherwise, the
evidence is inadmissible “absent a showing of particu-
larized guarantees of trustworthiness.” Id.
In Poole, this Court considered the admissibility of a
declarant’s voluntary, out-of-court statement made to
someone other than a police officer, implicating the
declarant and the defendant in criminal activity. Id. at
153-154. It held that in order for such a statement to be
admissible as substantive evidence against the defen-
dants at trial, it must be admissible under both MRE
804(b)(3) and the Confrontation Clause. Id. at 157.
After concluding that the statement was admissible
under MRE 804(b)(3), the Court considered whether
admission of the statement at issue violated the defen-
dants’ right of confrontation. Id. at 162. Following a
discussion of Roberts and Idaho v Wright, 497 US 805,
376 482 MICH 368 [Dec
OPINION OF THE COURT

819, 822-823; 110 S Ct 3139; 111 L Ed 2d 638 (1990)

(applying Roberts), this Court set forth guidelines for
analyzing the reliability of a declarant’s out-of-court
statement:
In evaluating whether a statement against penal inter-
est that inculpates a person in addition to the declarant
bears sufficient indicia of reliability to allow it to be
admitted as substantive evidence against the other person,
courts must evaluate the circumstances surrounding the
making of the statement as well as its content.
The presence of the following factors would favor ad-
mission of such a statement: whether the statement was
(1) voluntarily given, (2) made contemporaneously with the
events referenced, (3) made to family, friends, colleagues,
or confederates—that is, to someone to whom the declarant
would likely speak the truth, and (4) uttered spontaneously
at the initiation of the declarant and without prompting or
inquiry by the listener.
On the other hand, the presence of the following factors
would favor a finding of inadmissibility: whether the state-
ment (1) was made to law enforcement officers or at the
prompting or inquiry of the listener, (2) minimizes the role
or responsibility of the declarant or shifts blame to the
accomplice, (3) was made to avenge the declarant or to
curry favor, and (4) whether the declarant had a motive to
lie or distort the truth. [Poole, supra at 165.]

Applying these factors, the Poole Court concluded

that the witness did not prompt the declarant to make
the statement or inquire about events referenced in the
statement. The statement did not minimize the
declarant’s role in the attempted robbery or his respon-
sibility for the murder, and was not made in order to
shift blame to the defendants, avenge the declarant, or
curry favor. Nor was there any indication that the
declarant had a motive to lie. On that basis, the Court
concluded that the statement and the circumstances
2008] PEOPLE V TAYLOR 377
OPINION OF THE COURT

under which it was made bore sufficient indicia of

reliability to satisfy the requirements of the Confronta-
tion Clause. Id. at 165-166.
The United States Supreme Court subsequently de-
cided Crawford and Davis, which in combination over-
ruled Roberts in its entirety. In Crawford, the Court
overruled the Roberts “indicia of reliability” analysis
where testimonial statements are concerned. It held
that, “[w]here testimonial evidence is at issue,” “the
Sixth Amendment demands what the common law
required: unavailability and a prior opportunity for
cross-examination.” Crawford, supra at 68. The Court
declined to “spell out a comprehensive definition of
‘testimonial,’ ” but stated that “[w]hatever else the
term covers, it applies at a minimum to prior testimony
at a preliminary hearing, before a grand jury, or at a
former trial; and to police interrogations.” Id.
In Davis, the United States Supreme Court revisited
the question of the application and requirements of the
Confrontation Clause. It held that the clause only
restricts the admissibility of testimonial statements
because “[o]nly statements of this sort cause the
declarant to be a ‘witness’ within the meaning of the
Confrontation Clause.” Id. at 821. While nontestimo-
nial statements are subject to traditional rules limiting
the admissibility of hearsay, they do not implicate the
Confrontation Clause. Id. The Court considered the
circumstances under which statements made during a
police investigation were testimonial. It concluded that
such “[s]tatements are nontestimonial when made in
the course of police interrogation under circumstances
objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an
ongoing emergency.” Id. at 822. “They are testimonial
when the circumstances objectively indicate that there
378 482 MICH 368 [Dec
OPINION OF THE COURT

is no such ongoing emergency, and that the primary

purpose of the interrogation is to establish or prove past
events potentially relevant to later criminal prosecu-
tion.” Id.
The overruling of Roberts by the United States
Supreme Court in Crawford and Davis undermines the
analytical underpinnings of this Court’s decision in
Poole, which was entirely predicated on Roberts. Thus,
the holding in Poole that a codefendant’s nontestimo-
nial statement is governed by both MRE 804(b)(3) and
the Confrontation Clause is no longer good law. Scar-
ber’s statements to Ervin were nontestimonial because
they were made informally to an acquaintance, not
during a police interrogation or other formal proceed-
ing, see Crawford, supra at 68, or under circumstances
indicating that their “primary purpose” was to “estab-
lish or prove past events potentially relevant to later
criminal prosecution,” Davis, supra at 822. Accordingly,
the admissibility of the statements in this case is
governed solely by MRE 804(b)(3). This Court’s MRE
804(b)(3) analysis in Poole remains valid, however, and
provides the applicable standard for determining the
admissibility of a codefendant’s statement under the
hearsay exception for statements against a declarant’s
penal interest. MRE 804(b)(3) provides:
(b) Hearsay exceptions. The following are not excluded
by the hearsay rule if the declarant is unavailable as a
witness:

* * *

(3) Statement against interest. A statement which was at

the time of its making so far contrary to the declarant’s
pecuniary or proprietary interest, or so far tended to
subject the declarant to civil or criminal liability, or to
render invalid a claim by the declarant against another,
that a reasonable person in the declarant’s position would
2008] PEOPLE V TAYLOR 379
OPINION OF THE COURT

not have made the statement unless believing it to be true.

A statement tending to expose the declarant to criminal
liability and offered to exculpate the accused is not admis-
sible unless corroborating circumstances clearly indicate
the trustworthiness of the statement.

In Poole, this Court held:

[W]here, as here, the declarant’s inculpation of an
accomplice is made in the context of a narrative of events,
at the declarant’s initiative without any prompting or
inquiry, that as a whole is clearly against the declarant’s
penal interest and as such is reliable, the whole statement
—including portions that inculpate another—is admissible
as substantive evidence at trial pursuant to MRE 804(b)(3).
[Poole, supra at 161.][6]

In this case, Scarber made his first statement, impli-

cating himself, King, and Taylor in the kidnapping,
during a telephone conversation with Ervin on the day
of the kidnapping. During another call to Ervin the
following day, apparently shortly after Washington died,
6
Poole, supra at 161-162, explicitly relied on the commentary to FRE
804(b)(3), on which MRE 804(b)(3) is modeled. In Williamson v United
States, 512 US 594, 600-601; 114 S Ct 2431; 129 L Ed 2d 476 (1994), the
United States Supreme Court held that the federal rule “does not allow
admission of non-self-inculpatory statements, even if they are made
within a broader narrative that is generally self-inculpatory.” We note
this development in federal law, but believe that the portion of Poole
pertaining to MRE 804(b)(3) was correctly decided. See People v Vander-
Vliet, 444 Mich 52, 60 n 7; 508 NW2d 114 (1993), amended on other
grounds 445 Mich 1205 (1994) (noting that this Court finds commentary
and caselaw on the federal rules of evidence helpful and, in some cases,
persuasive). See also People v Beasley, 239 Mich App 548, 556; 609 NW2d
581 (2000). In Poole, we also suggested that “carry over” portions of a
declarant’s statement—those that inculpate the defendant but are not
directly against the declarant’s interest—might be admissible under a
“catch-all” hearsay exception, which Michigan did not have at the time.
Poole, supra at 159 n 11. Although the Michigan Rules of Evidence now
contain such an exception, MRE 803(4), we do not address whether the
statements at issue here are admissible under that exception because we
conclude that they are admissible under MRE 804(b)(3).
380 482 MICH 368 [Dec
OPINION OF THE COURT

Scarber made the second statement implicating King

alone in the shooting of Washington. Scarber did not make
any self-inculpatory statements during this call. The
Court of Appeals concluded that both statements fell
within the hearsay exception for statements against penal
interest, stating that “because the statements at issue
were provided in a narrative, both those portions that
inculpated Scarber alone and those that inculpated his
codefendants were admissible.” Taylor, supra at 5. More-
over, in discussing the admissibility of the second state-
ment under the Confrontation Clause, the Court acknowl-
edged that “it is arguable that defendant Scarber’s desire
to disassociate himself from the murder provided him
with a motive to lie about the identity of the individual
(perhaps Scarber himself) who actually shot Washington.”
Id. at 6. The Court concluded, however, that the second
statement was part of “a pattern of impugning communi-
cations” volunteered spontaneously and without reserva-
tion to a friend, not delivered to police, and “without any
apparent secondary motivation other than the desire to
maintain the benefits of the relationship’s confidence and
trust—and according to the record, to brag.” Id. Accord-
ingly, the Court concluded that “Scarber’s statements to
Ervin constituted a ‘narrative of events,’ so the state-
ments were admissible at trial in their entirety.” Id. Given
these determinations, we are satisfied that the Court of
Appeals sufficiently considered the issue of the state-
ments’ admissibility under MRE 804(b)(3) and Poole,
supra at 161, and affirm on that basis.
In all other respects, defendants’ applications for
leave to appeal are denied, because we are not per-
suaded that the questions presented should be reviewed
by this Court.

TAYLOR, C.J., and WEAVER, CORRIGAN, YOUNG, and

MARKMAN, JJ., concurred.
2008] PEOPLE V TAYLOR 381
OPINION BY CAVANAGH, J.

CAVANAGH, J. (concurring in part and dissenting in

part). I concur that People v Poole, 444 Mich 151; 506
NW2d 505 (1993), is no longer controlling law to the
extent it relied on Ohio v Roberts, 448 US 56; 100 S Ct
2531; 65 L Ed 2d 597 (1980), to hold that the admissibility
of a codefendant’s nontestimonial hearsay statement is
governed by the Confrontation Clause of the Sixth
Amendment of the United States Constitution. I dissent,
however, because I would grant leave to appeal to consider
the viability of Poole’s interpretation of MRE 804(b)(3) in
light of Williamson v United States, 512 US 594, 600-601;
114 S Ct 2431; 129 L Ed 2d 476 (1994).
Under MRE 804(b)(3), a nontestimonial hearsay state-
ment is not excluded if the declarant is not available as a
witness and the statement “so far tended to subject the
declarant to civil or criminal liability . . . that a reasonable
person in the declarant’s position would not have made
the statement unless believing it to be true.” Poole inter-
preted MRE 804(b)(3) to allow a declarant’s statements to
be admitted as a whole against a codefendant, even where
some of the statements inculpate the codefendant without
inculpating the declarant, if made “in the context of a
narrative of events” that as a whole was against the
declarant’s penal interest. Poole, supra at 161. The Poole
Court stated that it was “guided by the comment of the
Advisory Committee for the Federal Rules of Evidence
concerning FRE 804(b)(3), on which the Michigan rule is
modeled.” Id.
As the majority opinion acknowledged in this case,
one year after Poole was decided, the United States
Supreme Court repudiated the interpretation of the
federal commentary advanced in Poole. See Williamson,
supra at 600-601. Specifically, Williamson held that
“the most faithful reading of Rule 804(b)(3) is that it
does not allow admission of non-self-inculpatory state-
382 482 MICH 368 [Dec
OPINION BY CAVANAGH, J.

ments, even if they are made within a broader narrative

that is generally self-inculpatory. . . . [T]his is especially
true when the statement implicates someone else.”
Williamson, supra at 600-601. Williamson further
stated that the Court did not need to look to the federal
commentary to interpret FRE 804(b)(3) because “the
policy expressed in [the rule]’s text points clearly
enough in one direction that it outweighs whatever
force the Notes may have.” Id. at 602. Nevertheless, the
Court considered the portion of the federal commentary
on which Poole relied, and found it “not particularly
clear” and inconsistent with other portions of the
commentary, which the Court found to support a con-
trary interpretation. Id.
This Court should grant leave to appeal to reconsider
the validity of Poole in light of Williamson. The majority
opinion dismisses Williamson in a footnote by tersely
stating that “[w]e note this development in federal law,
but believe that the portion of Poole pertaining to MRE
804(b)(3) was correctly decided.” Ante at 379 n 6. While
the United States Supreme Court’s interpretation of
FRE 804(b)(3) does not necessarily control how this
Court interprets MRE 804(b)(3), I cannot agree that
Poole is so clearly and completely unaffected by Will-
iamson that it is appropriate for this Court to dismiss
the issue in a footnote.
The United States Supreme Court’s express rejection
of the interpretation of the federal commentary on
which Poole relies is significant. The majority misses
the point when it notes that this Court is not bound by
the FRE by stating that “this Court finds commentary
and caselaw on the [FRE] helpful and, in some cases,
persuasive.” Ante at 379 n 6, citing People v VanderVliet,
444 Mich 52, 60 n 7; 508 NW2d 114 (1993). When this
Court bases its interpretation of an MRE on the federal
2008] PEOPLE V TAYLOR 383
OPINION BY CAVANAGH, J.

commentary to the equivalent FRE, and the United States

Supreme Court then soundly rejects that understanding
of the FRE, it merits greater attention from this Court
than dismissal in a footnote. It is true that we are not
bound by the FRE because we find commentary and
caselaw for the FRE “only” helpful and sometimes per-
suasive. But, because we do find commentary and caselaw
for the FRE helpful and sometimes persuasive, it is worth
evaluating in a meaningful, substantive manner whether
Poole’s interpretation of MRE 804(b)(3) was correct irre-
spective of Williamson’s rejection of Poole’s reasoning.1
This jurisprudentially significant issue merits, at a
minimum, granting leave to appeal.
Further, as stated in my dissent in Poole, I continue
to think that it is more consistent with the text of MRE
804(b)(3) to exclude the portions of a declarant’s state-
ments that implicate a codefendant but are not against
the declarant’s penal interest. See Poole, supra at
166-169 (CAVANAGH, J., dissenting). The exception to the
general rule against hearsay in MRE 804(b)(3) allows
admission of statements against interest only insofar as
a “reasonable person in the declarant’s position would
not have made the statement unless believing it to be
true.” As stated in Williamson, supra at 599-600:
Rule 804(b)(3) is founded on the commonsense notion
that reasonable people, even reasonable people who are not
especially honest, tend not to make self-inculpatory state-
ments unless they believe them to be true. . . . The fact that
a person is making a broadly self-inculpatory confession
does not make more credible the confession’s non-self-
inculpatory parts. One of the most effective ways to lie is to

1
In lieu of conducting a meaningful, substantive evaluation of the
validity of Poole after Williamson, the majority opinion “notes” William-
son and affirms Poole without analysis and seemingly without genuine
consideration.
384 482 MICH 368 [Dec
OPINION BY CAVANAGH, J.

mix falsehood with truth, especially truth that seems

particularly persuasive because of its self-inculpatory na-
ture.

Poole’s interpretation of MRE 804(b)(3) is an impre-

cise proxy for when a “reasonable person in the
declarant’s position would not have made the statement
unless believing it to be true.” MRE 804(b)(3). Poole
incorrectly assumed that any statement made in the
context of a narrative of events that as a whole is
against the declarant’s penal interest is one that a
reasonable person in the declarant’s position would not
have made unless it were true. Williamson’s interpre-
tation more accurately reflects the rule’s text and the
reality that the underlying justification for inferring
that self-inculpatory statements are true does not nec-
essarily extend to contemporaneous non-self-
inculpatory statements. This is especially true when, as
in this case, the non-self-inculpatory statements excul-
pate the declarant and inculpate a codefendant.2
This Court should grant leave to appeal to reconsider
Poole in light of Williamson because Williamson re-
jected the interpretation of the federal commentary on
which Poole was based. Further, the facts of this case
illustrate the flaws in Poole’s interpretation of MRE
804(b)(3) as compared to Williamson’s interpretation.

KELLY, J., concurred with CAVANAGH, J.

2
To the extent that Scarber’s statements in the first phone call
implicated both himself and his codefendants, a court could infer that a
reasonable person would not have made the statements unless they were
true. In contrast, Scarber’s statements in the second telephone call
implicated only King. It would be in Scarber’s interest to exculpate
himself from the shooting by inculpating only King in the second call;
therefore, a “reasonable person” might have made those statements even
if they were not true. This demonstrates why Williamson’s application of
MRE 804(b)(3) reaches a result more precisely connected to the rule’s
text than Poole’s interpretation does.
2008] PEOPLE V MAXSON 385

PEOPLE v MAXSON

Docket No. 129693. Decided December 22, 2008.

Mark A. Maxson pleaded guilty in the Ingham Circuit Court, James
R. Giddings, J., to two counts of second-degree criminal sexual
conduct. The defendant did not request appointed counsel or seek
to file a direct appeal before his conviction became final in
September 2002. The defendant filed a motion for relief from
judgment in June 2004, the denial of which was on appeal with the
Court of Appeals when the United States Supreme Court decided
Halbert v Michigan, 545 US 605 (2005), which held that indigent
defendants who plead guilty of criminal offenses are entitled to
appointed counsel on direct appeal. The Court of Appeals, TALBOT,
P.J., and FITZGERALD and METER, JJ., denied the defendant’s delayed
application for leave to appeal. Unpublished order of the Court of
Appeals, entered August 16, 2005 (Docket No. 260335). The same
panel also denied the defendant’s motion for reconsideration.
Unpublished order of the Court of Appeals, entered September 22,
2005 (Docket No. 260335). The defendant sought leave to appeal in
the Supreme Court.
In lieu of granting leave, the Supreme Court, in an opinion by
Justice MARKMAN, joined by Chief Justice TAYLOR and Justices
WEAVER, CORRIGAN, and YOUNG, held:
Based on the federal and state law regarding retroactive
application of criminal procedures, Halbert does not apply retro-
actively to cases in which a defendant’s conviction became final
before Halbert was decided.
1. Under the federal standard, new constitutional rules of
criminal procedure are generally not retroactively applicable to
those cases that have become final before the new rules are
announced. The two exceptions to this general rule are for new
rules that place certain kinds of primary, private individual con-
duct beyond the power of the criminal lawmaking authority to
proscribe, and for new rules that require the observance of those
procedures that are implicit in the concept of ordered liberty. The
first exception is clearly inapplicable. Additionally, providing coun-
sel to an indigent defendant for an appeal of a guilty plea cannot be
said to be implicit in the concept of ordered liberty, because such
386 482 MICH 385 [Dec
OPINION OF THE COURT
provision of counsel does not arise from the Sixth Amendment
right to counsel, and a state is not required to provide any
appellate proceedings at all for defendants who plead guilty.
Therefore, the second exception is also inapplicable.
2. Michigan law generally does not apply new rules of criminal
procedure retroactively to cases in which a defendant’s conviction
has become final. To determine whether a new rule should be
applied retroactively, the Court must consider the purpose of the
new rules, the general reliance on the old rule, and the effect of
retroactive application of the new rule on the administration of
justice. Consideration of these factors does not weigh in favor of
applying Halbert retroactively.
Affirmed.
Justice CAVANAGH, joined by Justice KELLY, dissenting, rejected
the majority’s application of the federal standard for determining
retroactivity because that standard was tailored for use in the
unique context of federal habeas corpus issues. He would instead
hold that Halbert applies retroactively under the three-pronged
state standard set forth in People v Sexton, 458 Mich 43 (1998),
because the appointment of counsel on a first-tier appeal from a
plea-based conviction involves the correction of errors and there-
fore involves the ascertainment of guilt or innocence; the rule in
Halbert was neither unexpected nor indefensible; and the admin-
istration of justice requires the fair application of fundamental
rights, including the right to counsel on first-tier appellate review.
As Halbert held, the state’s interest in the finality of the criminal
justice process cannot justify denying appellate counsel to defen-
dants who pleaded guilty.

CRIMINAL LAW — CRIMINAL PROCEDURE — APPELLATE COUNSEL — RIGHT TO

APPELLATE COUNSEL — RETROACTIVITY OF DECISIONS.
The United States Supreme Court decision in Halbert v Michigan,
545 US 605 (2005), holding that indigent defendants who plead
guilty of criminal offenses are entitled to appointed counsel on
direct appeal, does not apply retroactively to cases in which a
defendant’s conviction became final before Halbert was decided.

Mark Allen Maxson, in propria persona.

MARKMAN, J. At issue here is whether the United

States Supreme Court’s decision in Halbert v Michigan,
545 US 605; 125 S Ct 2582; 162 L Ed 2d 552 (2005),
should be applied retroactively to cases in which a
2008] PEOPLE V MAXSON 387
OPINION OF THE COURT

defendant’s conviction has become final. In lieu of

granting leave to appeal, we affirm the judgment of the
trial court denying defendant’s motion for relief from
judgment, and we conclude under federal and state law
that Halbert should not be applied retroactively to cases
in which a defendant’s conviction has become final.

I. FACTS AND PROCEDURAL HISTORY

In 2001, defendant pleaded guilty to two counts of

second-degree criminal sexual conduct, and subse-
quently failed to request appointed counsel or to file a
direct appeal. On June 23, 2005, the United States
Supreme Court issued Halbert, which held that indigent
defendants who plead guilty to criminal offenses are
entitled to appointed appellate counsel on direct appeal.
Id. at 610. After Halbert was decided, defendant re-
quested appointed counsel in the instant motion for
relief from judgment. However, because defendant’s
conviction was final before Halbert was decided, defen-
dant is only entitled to counsel if the rule announced in
Halbert is applied retroactively.

II. STANDARD OF REVIEW

The retroactivity of a court’s ruling presents an issue

of law that this Court reviews de novo. People v Sexton,
458 Mich 43, 52; 580 NW2d 404 (1998).

III. ANALYSIS

A. RETROACTIVITY UNDER FEDERAL LAW

“New legal principles, even when applied retroac-

tively, do not apply to cases already closed.” Reynolds-
ville Casket Co v Hyde, 514 US 749, 758; 115 S Ct 1745;
131 L Ed 2d 820 (1995). This is because “at some point,
388 482 MICH 385 [Dec
OPINION OF THE COURT

‘the rights of the parties should be considered frozen’

and a ‘conviction . . . final.’ ” Id., quoting United States
v Estate of Donnelly, 397 US 286, 296; 90 S Ct 1033; 25
L Ed 2d 312 (1970) (Harlan, J., concurring). There are,
however, “certain special concerns—related to collat-
eral review of state criminal convictions—that affect
which cases are closed, for which retroactivity-related
purposes, and under what circumstances.” Id.
In Teague v Lane, 489 US 288; 109 S Ct 1060; 103 L Ed
2d 334 (1989), the United States Supreme Court set forth
the federal standard for determining whether a rule
regarding criminal procedure should be applied retroac-
tively to cases in which a defendant’s conviction has
become final. Teague established the “general rule” that
“new constitutional rules of criminal procedure will not be
applicable to those cases which have become final before
the new rules are announced.” Id. at 310. However,
Teague laid down two exceptions to this general rule: first,
a new rule should be applied retroactively if it places
“ ‘certain kinds of primary, private individual conduct
beyond the power of the criminal law-making authority to
proscribe,’ ” id. at 307 (citation omitted); and second, a
new rule should be applied retroactively “if it requires the
observance of those procedures that . . . are implicit in the
concept of ordered liberty.” Id. (citations and internal
quotation marks omitted).
Thus, the first question under Teague is whether the
rule in Halbert constitutes a new rule. “ ‘[A] case
announces a new rule when it breaks new ground or
imposes a new obligation on the States or the Federal
Government.’ ” Penry v Lynaugh, 492 US 302, 314; 109
S Ct 2934; 106 L Ed 2d 256 (1989) (citation omitted).
Deciding whether a rule is “new” requires a court to
determine “whether ‘a state court considering [the
defendant’s] claim at the time his conviction became
2008] PEOPLE V MAXSON 389
OPINION OF THE COURT

final would have felt compelled by existing precedent to

conclude that the rule [he] seeks was required by the
Constitution.’ ” O’Dell v Netherland, 521 US 151, 156;
117 S Ct 1969; 138 L Ed 2d 351 (1997) (emphasis added
and citations omitted). If a reasonable jurist would not
have felt compelled by existing precedent, then the rule
is new. Beard v Banks, 542 US 406, 413; 124 S Ct 2504;
159 L Ed 2d 494 (2004). In other words, the relevant
question is not simply whether existing precedent
might have supported the rule, but whether the rule
“was dictated by then-existing precedent.” Id. at 413
(emphasis in original).
We conclude that the rule in Halbert constitutes a
new rule. Although Halbert found support in the earlier
United States Supreme Court decision of Douglas v
California, 372 US 353; 83 S Ct 814; 9 L Ed 2d 811
(1963), that case did not clearly require the outcome in
Halbert. Douglas held that when a state grants a first
appeal as of right, the state is required to appoint
appellate counsel for indigent defendants. Id. at 357.
Because Michigan does not grant an appeal as of right
to a defendant who pleads guilty,1 and because the
United States Supreme Court had previously decided that
appointment of appellate counsel is unnecessary when an
appellate court, such as a state’s highest court, has the
discretion to choose whether to reach the merits of a
defendant’s appeal, Ross v Moffitt, 417 US 600; 94 S Ct
2437; 41 L Ed 2d 341 (1974), a reasonable jurist could well
conclude that Douglas did not compel the result in Hal-
bert.
Because “it is more difficult . . . to determine
whether [the Supreme Court] announce[d] a new rule
1
Defendants who seek to appeal their guilty pleas must file an
application for leave to appeal with the Court of Appeals. MCR
7.203(A)(1)(b).
390 482 MICH 385 [Dec
OPINION OF THE COURT

when a decision extends the reasoning of [its] prior

cases,” Saffle v Parks, 494 US 484, 488; 110 S Ct 1257;
108 L Ed 2d 415 (1990), the “new rule” principle is
designed to “validate[] reasonable, good-faith interpre-
tations of existing precedents made by state courts even
though they are shown to be contrary to later deci-
sions.” Butler v McKellar, 494 US 407, 414; 110 S Ct
1212; 108 L Ed 2d 347 (1990). In Halbert, the dissenting
Supreme Court justices argued against extending Dou-
glas, further supporting the conclusion that Douglas
did not compel the result in Halbert and that this
Court’s previous interpretation was reasonable.
Because the rule in Halbert was new, the remaining
question under Teague is whether either of the two
Teague exceptions applies. The first exception is clearly
inapplicable, as the rule in Halbert does not concern a
rule that “ ‘forbid[s] criminal punishment of certain
primary conduct . . . [or] prohibit[s] a certain category
of punishment for a class of defendants because of their
status or offense.’ ” O’Dell, supra at 157 (citation
omitted). Thus, the only issue is whether Halbert con-
stituted a “watershed” decision that involved “proce-
dures . . . implicit in the concept of ordered liberty.”
Graham v Collins, 506 US 461, 478; 113 S Ct 892; 122
L Ed 2d 260 (1993) (citations and quotation marks
omitted).
The United States Supreme Court has repeatedly
emphasized the limited scope of the second Teague
exception. The Court has observed that because any
such rule “would be so central to an accurate determi-
nation of innocence or guilt [that it is] unlikely that
many such components of basic due process have yet to
emerge, it should come as no surprise that we have yet
to find a new rule that falls under the second Teague
exception.” Beard, supra at 417 (citations and quota-
2008] PEOPLE V MAXSON 391
OPINION OF THE COURT

tion marks omitted). The Supreme Court has referred

to the right to counsel set forth in Gideon v Wainwright,
372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963), as an
example of a rule that would fall into the second Teague
exception. It is significant that in referring to this
example, the Supreme Court observed, “In providing
guidance as to what might fall within this exception, we
have repeatedly referred to the rule of Gideon (right to
counsel), and only to this rule.” Beard, supra at 417
(emphasis added and citation omitted).
Notably, the Sixth Amendment right to counsel ar-
ticulated in Gideon and its progeny has a constitutional
basis distinct from that underlying the Douglas line of
cases addressing the right to counsel on appeal that are
rooted in the Equal Protection and Due Process clauses
of the Fourteenth Amendment. Further, considering
that Halbert is unlikely to apply to any situation other
than Michigan’s unique legislative system of appeals
from plea-based convictions, we agree with the Sixth
Circuit that “[i]t does not represent a shift in ‘bedrock
procedural elements’ and it cannot be said to be ‘on par’
with Gideon.” Simmons v Kapture, 474 F3d 869, 887
(CA 6, 2007) (Reeves, J., dissenting), adopted by Sim-
mons v Kapture, 516 F3d 450, 451 (CA 6, 2008) (holding
that Halbert is not retroactive under Teague).
Additionally, a state is not required to provide any
appellate proceedings at all for defendants who plead
guilty. Halbert, supra at 610. In Goeke v Branch, 514 US
115; 115 S Ct 1275; 131 L Ed 2d 152 (1995), the
Supreme Court held that “[b]ecause due process does
not require a State to provide appellate process at all, a
former fugitive’s right to appeal cannot be said to be so
central to an accurate determination of innocence or
guilt as to fall within this exception . . . .” Id. at 120
392 482 MICH 385 [Dec
OPINION OF THE COURT

(citations and quotation marks omitted).2 Considering

these holdings, the provision of appointed counsel for
such a proceeding can hardly be said to be “implicit in
the concept of ordered liberty.” Accordingly, in our
judgment, Halbert cannot be construed as a “water-
shed” decision, neither of the Teague exceptions ap-
plies, and Halbert thus is not retroactive under federal
retroactivity jurisprudence.

B. RETROACTIVITY UNDER STATE LAW

The conclusion that Halbert is not retroactive under

federal law does not end our analysis, however. A state
may accord broader effect to a new rule of criminal
procedure than federal retroactivity jurisprudence ac-
cords. Danforth v Minnesota, ___ US ___; 128 S Ct 1029,
1045; 169 L Ed 2d 859 (2008).3 Accordingly, we turn to
the question of whether Halbert should be deemed
retroactive under state law. Michigan law has regularly
declined to apply new rules of criminal procedure to
2
“[A] State may not ‘bolt the door to equal justice’ to indigent
defendants” once it has provided an avenue of appeal. Halbert, supra at
610, quoting Griffin v Illinois, 351 US 12, 24; 76 S Ct 585; 100 L Ed 891
(1956). This holding only emphasizes our position that Halbert is not a
“watershed” decision like Gideon because Halbert is rooted in the Equal
Protection and Due Process clauses of the Fourteenth Amendment,
rather than in the Sixth Amendment right to counsel.
3
To conclude that Teague was intended to apply strictly to federal
habeas review, and not to state court proceedings, Danforth argued that:
(1) Teague was silent regarding a state’s ability to give broader effect to
federal constitutional decisions, Danforth, supra at 1039; (2) Teague was
based on the federal habeas statute, 28 USC 2241 et seq., a “statutory
authority that extends only to federal courts,” Danforth, supra at 1040;
and (3) Teague relied on considerations of comity and federalism, which
“are [concerns] unique to federal habeas review of state convictions.” Id.
at 1041 (emphasis in original). Accordingly, the analysis in Teague binds
only federal courts on habeas review, and a state court may use a different
test to give broader effect to a new rule of criminal procedure established
by the United States Supreme Court.
2008] PEOPLE V MAXSON 393
OPINION OF THE COURT

cases in which a defendant’s conviction has become final.

See Sexton, supra (requirement that the police inform a
suspect when retained counsel is available for consulta-
tion); People v Stevenson, 416 Mich 383; 331 NW2d 143
(1982) (abrogation of common-law “year and a day” rule);
People v Young, 410 Mich 363; 301 NW2d 803 (1981)
(preconviction filing of habitual offender notice); People v
Smith, 405 Mich 418, 433; 275 NW2d 466 (1979) (repeal of
criminal sexual psychopath statute barring criminal ac-
tion against those adjudicated criminal sexual psycho-
paths); People v Markham, 397 Mich 530; 245 NW2d 41
(1976) (double jeopardy “same transaction” test); People v
Rich, 397 Mich 399; 245 NW2d 24 (1976) (erroneous
“capacity standard” jury instruction); People v Butler, 387
Mich 1; 195 NW2d 268 (1972) (waiver of a defendant’s
constitutional rights in taking a guilty plea); Jensen v
Menominee Circuit Judge, 382 Mich 535; 170 NW2d 836
(1969) (constitutional right to appeal in criminal cases);
People v Woods, 382 Mich 128; 169 NW2d 473 (1969)
(custodial interrogation procedures); People v Fordyce,
378 Mich 208; 144 NW2d 340 (1966) (custodial interroga-
tion procedures).
In Sexton, we considered the following three factors
to determine whether a new rule of criminal procedure
should be applied retroactively:
(1) the purpose of the new rules; (2) the general reliance
on the old rule[;] and (3) the effect of retroactive applica-
tion of the new rule on the administration of justice.
[Sexton, supra at 60-61, citing People v Hampton, 384 Mich
669, 674; 187 NW2d 404 (1971).]

Under the “purpose” prong, a law may be applied

retroactively when it “ ‘concerns the ascertainment of
guilt or innocence;’ ” however, “ ‘a new rule of proce-
dure . . . which does not affect the integrity of the
fact-finding process should be given prospective ef-
fect.’ ” Id. at 63, quoting Young, supra at 367. By
pleading guilty, defendants are not contesting their
guilt, but admitting it freely. Thus, the appointment of
394 482 MICH 385 [Dec
OPINION OF THE COURT

counsel on appeal does not concern the ascertainment

of guilt or innocence. See Goeke, supra at 120. Rather,
an appeal from a guilty plea concerns only the proce-
dures of the plea process; the defendant has already
admitted substantive guilt while represented by coun-
sel. It is hard to imagine a more dispositive process by
which guilt can be accurately determined, and in which
the appellate process becomes less central to an accu-
rate determination of guilt, than that in which a full
admission to criminal conduct has come from the
mouth of the defendant himself under oath,4 and in an
environment in which the defendant has been accorded
every protection against a coerced or mistaken confes-
sion. Consequently, the first Sexton prong counsels
against retroactivity.
The second Sexton prong, which concerns the “gen-
eral reliance on the old rule,” does not, in our judgment,
strongly counsel either way in this case. When consid-
ering “reliance,” a court examines whether individual
persons or entities have been “adversely positioned . . .
in reliance” on the old rule. Rowland v Washtenaw Co
Rd Comm, 477 Mich 197, 221; 731 NW2d 41 (2007). The
dissent implies that defendants who pleaded guilty
between 1994 and 2005, as a class, were “penalized by
the general reliance” on the old rule.5 Post at 411. We
disagree. To be considered to have detrimentally relied
on the old rule, a defendant must have relied on the rule
in not pursuing an appeal and have suffered harm as a
result of that reliance. We recognize that ascertaining
the precise number of defendants who meet this stan-
dard is impossible, but clearly all defendants who
4
Since March 1, 1995, this Court has required all defendants who plead
guilty to be placed under oath before doing so. MCR 6.302(A).
5
1994 PA 374, which implemented Proposal B, became effective
December 27, 1994.
2008] PEOPLE V MAXSON 395
OPINION OF THE COURT

pleaded guilty between 1994 and 2005 do not meet this

standard. Indeed, appeals of guilty pleas before the old
rule indicate that it is likely that very few do.
First, only a very small percentage of defendants who
pleaded guilty before the old rule became effective
actually appealed their pleas. Before the old rule was
implemented in 1994, an estimated 89% to 94% of
defendants who pleaded guilty did not appeal their
pleas.6 During this period, indigent defendants were
appointed appellate counsel if they chose to pursue an
appeal. Yet, fewer than one in ten of all defendants who
pleaded guilty actually decided to appeal their pleas.
The large number of defendants who pleaded guilty but
did not seek appeal can be explained by a variety of
factors, most important of which are the lack of an
appealable issue after the plea and the risk inherent in
appealing a guilty plea.7 Therefore, it can be assumed
that most defendants who pleaded guilty between 1994
and 2005 and did not appeal, rather than not appealing
6
The State Appellate Defender Office estimated, on the basis of the
cases it handled, that less than six percent of guilty pleas were appealed.
House Legislative Analysis Section, Second Analysis, 1994 PA 374, 375
(January 5, 1995), p 2. The House Legislative Analysis Section’s Novem-
ber 2, 1993, analysis stated that “[e]stimates put the proportion of people
who appeal after pleading guilty at 11 percent or substantially less.”
House Legislative Analysis Section, First Analysis, House Bill 4070, 4071
(November 2, 1993) (“HB 4070-4071 Analysis”), p 3.
7
Under MCR 6.312, if an appellate court vacates a defendant’s
guilty plea, “the case may proceed to trial on any charges that had
been brought or that could have been brought against the defendant if
the plea had not been entered,” including charges more severe than
the charge or charges to which the defendant pleaded guilty or charges
that the prosecutor agreed to drop in exchange for the plea agreement.
The risk of proceeding to trial on more serious or additional charges
often persuades defendants not to pursue a plea appeal. Robertson,
Felony Plea Appeals in Michigan — 1992; (Lansing: Michigan Appel-
late Assigned Counsel System, 1992), p 2. See also People v Sutton, 158
Mich App 755; 405 NW2d 209 (1987).
396 482 MICH 385 [Dec
OPINION OF THE COURT

because of reliance on the old rule, did not appeal

because of factors unrelated to, and existing before, the
old rule.
Second, a defendant who relied on the old rule in not
filing an appeal must also have suffered actual harm
from that reliance in order to have “detrimentally
relied” on the old rule. That is, the old rule would have
had to preclude defendant from filing an appeal that
would have resulted in some form of relief. Out of that
small number of defendants who pleaded guilty before
the old rule and subsequently appealed the plea, only a
very limited number received relief on appeal. In 1994,
before the old rule was adopted, the Court of Appeals
estimated that only three to four percent of guilty plea
cases that came before it resulted in some form of
relief.8 The State Appellate Defender Office (SADO),
however, estimates that approximately 27% of pleading
indigent defendants whom it represented received some
measure of relief.9
Accordingly, the number of pleading defendants who
could be said to have detrimentally relied on the old rule
would range somewhere between 0.18% (6% x 3%) and
2.97% (11% x 27%), combining the lowest and highest
Court of Appeals/House Legislative Analysis and SADO
figures. Thus, there is no reason why it should not be
8
House Legislative Analysis Section, First Analysis, Ballot Proposal B,
1994 General Election, (October 14, 1994), p 4.
9
HB 4070-4071 Analysis, supra at 2; Senate Fiscal Agency, First
Analysis, S.J.R. D (Feb 18, 1993), p 2. According to SADO, 42% of the
guilty pleas it appealed were entirely dismissed without being heard.
Cases “not heard” were typically handled by a “short, simple affirmation
of the trial court’s decision.” Id. For the remaining 58% that were not
dismissed without a hearing, 47% of those appeals received relief. Thus,
using the SADO figures, of every six SADO-represented, guilty-pleading
defendants who appealed, approximately 1.6, or 27%, secured some
measure of relief ((42% x 0%) + (58% x 47%)).
2008] PEOPLE V MAXSON 397
OPINION OF THE COURT

assumed that, at a minimum, 97% to 99% of the

defendants who pleaded guilty under the old rule would
not have received relief under the new rule.10 While it
cannot be disputed that some number of defendants
would receive relief if Halbert were made retroactive,11
this would be true of extending any new rule retroac-
tively, yet this is not generally done. Instead, we must
consider, as best as possible, the extent of the detrimen-
tal reliance on the old rule, and then balance this
against the other Sexton factors, as well as against the
fact that each defendant who pleaded guilty has re-
ceived all the rights under the law to which he or she
was entitled at the time. Here, we conclude that the
extent of the detrimental reliance is remarkably mini-
mal and, as explained above and below, does not out-
weigh the other Sexton factors that clearly counsel
against retroactive application.
Finally, affording appointed counsel to defendants
whose appeals became final before Halbert would have a
markedly adverse effect on the administration of jus-
tice, the third Sexton prong. The state’s strong interest
in finality of the criminal justice process would be
undermined as presumably significant numbers of the
incarcerated population would be entitled to avail
themselves of appointed counsel and new appeals, de-
10
Moreover, if anything, these figures overstate the number of defen-
dants who adversely relied on the old rule. A defendant, for example, who
has received relief in the form of resentencing, or the vacating of a plea,
has not necessarily been adversely affected if he or she ultimately
receives the same sentence after resentencing or is reconvicted after trial.
11
Appellate “relief,” of course, far more often than not consists of such
things as requiring judicial rearticulation of a sentence, affording addi-
tional rights of allocution, correcting a presentence report, adjusting
restitution amounts, clarifying the application of guidelines, and vacating
consecutive sentences, as opposed to reversing a conviction or reducing a
sentence.
398 482 MICH 385 [Dec
OPINION OF THE COURT

spite having knowingly and intelligently pleaded guilty

to criminal conduct while represented by counsel.
“[F]inality of state convictions is a state interest . . .
that States should be free to evaluate, and weigh the
importance of, when prisoners held in state custody are
seeking a remedy for a violation of federal rights by
their lower courts.” Danforth, supra at 1041 (emphasis
in original). The principle of finality “is essential to the
operation of our criminal justice system.” Teague, supra
at 309. The state’s interest in finality discourages the
advent of new rules from “continually forc[ing] the
State[] to marshal resources in order to keep in prison
defendants whose trials and appeals conformed to then-
existing constitutional standards,” id. at 310 (emphasis
omitted), and also “serves the State’s goal of rehabili-
tating those who commit crimes because ‘[rehabilita-
tion] demands that the convicted defendant realize that
he is justly subject to sanction, that he stands in need of
rehabilitation.’ ” Kuhlmann v Wilson, 477 US 436, 453;
106 S Ct 2616; 91 L Ed 2d 364 (1986), quoting Engle v
Isaac, 456 US 107, 128 n 32; 102 S Ct 1558; 71 L Ed 2d
783 (1982) (citation and quotation marks omitted).
Accordingly, applying Halbert retroactively to cases in
which a conviction has become final would have a
markedly adverse effect on the administration of jus-
tice.
Thus, although retroactive application of Halbert
would potentially provide a small number of defendants
with some form of relief, this does not outweigh the
certainty that by applying Halbert retroactively, many
guilty-pleading defendants whose convictions have be-
come final would inundate the appellate process with
new appeals. In light of the limited judicial resources of
the state, it is our judgment that those resources would
be better preserved for defendants currently charged—
2008] PEOPLE V MAXSON 399
OPINION OF THE COURT

some of whom may be innocent or otherwise entitled to

relief—than for defendants who have knowingly
pleaded guilty and presumably accepted the conse-
quences of their decisions. Thus, the third prong weighs
far more heavily against retroactive application than
the second prong weighs for retroactive application.
Considered together, all of the Sexton factors, therefore,
strongly counsel against applying Halbert retroactively
under state law to cases in which a defendant’s convic-
tion has become final.

IV. FURTHER RESPONSE TO THE DISSENT

(1) The dissent asserts that we are “swerv[ing] and

dodg[ing]” decisions of the United States Supreme
Court by “refusing” to make Halbert retroactive in
order to “deny indigent defendants access to justice.”
Post at 403. The premise of this overheated assertion is
that the United States Supreme Court has already
rejected our reasoning, but its repetition by the dissent
does not make this so. We have set forth what we think
the law is, and we have followed Teague and other
relevant decisions to their logical and reasonable con-
clusions. Whatever the dissent’s personal conceptions
of what should be required by the Constitution, we have
applied what this Court and the United States Supreme
Court have said the Constitution requires.
(2) The dissent describes us as “arbitrarily” cutting
off constitutional relief to defendants whose plea-based
convictions became final between 1994 and 2005. We
fail to see what is “arbitrary” about applying existing
precedent to determine whether Halbert is retroactive
and, having concluded that it is not, employing the date
of the Halbert decision to determine who precisely is
entitled to the benefits of that decision. Using the date
of a decision that has granted a right as the starting
400 482 MICH 385 [Dec
OPINION OF THE COURT

date for entitlement to that right has long been the

standard procedure of this Court. See Woods, supra at
138-139.
(3) The dissent believes that because Halbert overruled
this Court’s determination in People v Bulger, 462 Mich
495; 614 NW2d 103 (2000), that MCL 770.3a was consti-
tutional, his position in the instant case should prevail.
This overlooks that the issues in Bulger and this case are
simply different. Unlike Bulger, this case does not concern
whether the right to first-tier appellate counsel exists;
Halbert has decided this. Rather, the present issue con-
cerns the extent to which Halbert is retroactive. Indeed, in
Bulger, we expressly declined to address the constitution-
ality of MCL 770.3a because it did not apply to the
defendant in that case. Id. at 506 (“Because this new
statute does not apply to defendant, the question of its
constitutionality is not before us.”).12 While the analysis
employed by the Supreme Court in recognizing a con-
stitutional right may well be relevant in some instances
in assessing the right’s retroactivity, it will rarely be
conclusive. Indeed, Teague and Danforth themselves
confirm that assessments of retroactivity are indepen-
dent of the recognition of the right itself and that the
two determinations involve different questions and
require the evaluation of different interests.
(4) The dissent concludes that precedent “compelled”
the result in Halbert by declaring the holding in Ross to
be so clear that it “does not support a claim that a
reasonable jurist could conclude that the rule of Halbert
was not compelled.” Post at 407. We think the simple
fact that Halbert was a 6 to 3 decision, and reversed a
majority of this Court, makes sufficiently clear that
12
Only later, in People v Harris, 470 Mich 882 (2004), did we hold that,
“[p]ursuant to the analysis provided by this Court in Bulger, MCL 770.3a
is constitutional.”
2008] PEOPLE V MAXSON 401
OPINION OF THE COURT

reasonable jurists could conclude that Halbert was not

“compelled.” Further, even the trial court that granted
conditional habeas relief in Bulger recognized that this
Court’s position was “not contrary to any clearly estab-
lished Supreme Court precedent,” Bulger v Curtis, 328
F Supp 2d 692, 703 (ED Mich, 2004) (emphasis added).13
(5) The dissent complains that we “rel[y] on the
presumption that all defendants who plead guilty are
indeed guilty.” Post at 409. When a defendant pleads
guilty, he admits guilt under oath. We freely admit that
there is some sense on our part that “defendants who
plead guilty are indeed guilty.” By taking an oath,
defendants give courts permission to presume that
admissions of guilt are true. This Court has made clear
that after conviction, defendants are no longer cloaked
with a presumption of innocence, People v Mateo, 453
Mich 203, 222; 551 NW2d 891 (1996) (WEAVER, J.,
concurring), thereby permitting this Court to presume
that those who have pleaded guilty are, in fact, guilty.
More importantly, Halbert did not address the ascer-
tainment of guilt, but rather discussed the complexity
of appeals and why counsel is often required to navigate
this process. Halbert, supra at 621 (“Navigating the
appellate process without a lawyer’s assistance is a
perilous endeavor for a layperson . . . .”). Although the
opinion refers to “ ‘myriad and often complicated’ sub-
stantive issues” potentially involved in appeals, at no
time does it equate these issues with the ascertainment
of guilt. Id. (citation omitted).
Moreover, not only are several of the potential appel-
late issues that the dissent identifies clearly unrelated
13
In light of the Sixth Circuit’s conclusion in Simmons that Halbert is not
retroactive under Teague, and the dissent’s assertion that “Teague does not
control the measure of retroactivity applied by a state court,” post at 408, we
see no reason to further discuss the dissent’s Teague analysis.
402 482 MICH 385 [Dec
OPINION OF THE COURT

to questions of guilt (jurisdictional defects, double jeop-

ardy claims, and claims that the state had no right to
proceed such as having charged a defendant under an
inapplicable statute), but it is nonsensical for the dis-
sent to conclude that the Supreme Court determined
that claims involving “ ‘constitutional defects that are
irrelevant to [a defendant’s] factual guilt’ ” apply to the
guilt or innocence of a defendant. Post at 410 n 2,
quoting Bulger, supra at 561 (CAVANAGH, J., dissenting)
(emphasis added).
Although we recognize that such procedural matters
may well be essential and, in some cases, constitution-
ally mandated, their existence does not automatically
convert them into issues concerning guilt or innocence.
The United States Constitution provides criminal de-
fendants the right to due process of law. US Const, Am
V. The question of whether a defendant has received due
process is different in many contexts from whether a
given procedure affects the “integrity of the fact-finding
process.” Sexton, supra at 63 (internal citation and
quotation marks omitted). By conflating, as the dissent
has done, whether a procedure is necessary for due
process with whether a procedure ascertains a defen-
dant’s guilt or innocence, the dissent would compel that
virtually all new rules of criminal procedure become
retroactive. Perhaps the dissent could explain what new
rules would not be retroactive under the analysis that
he sets forth. And, while such automatic retroactivity
may be the dissent’s personal preference, Sexton’s and
Teague’s very existence refute that proposition as the
preference of the law.

V. CONCLUSION

For these reasons, we hold that Halbert does not

apply retroactively to cases in which a defendant’s
2008] PEOPLE V MAXSON 403
DISSENTING OPINION BY CAVANAGH, J.

conviction has become final, either under federal or

state retroactivity jurisprudence. Accordingly, we affirm
the trial court’s denial of defendant’s motion for relief
from judgment.

TAYLOR, C.J., and WEAVER, CORRIGAN, and YOUNG, JJ.,

concurred with MARKMAN, J.

CAVANAGH, J. (dissenting). Once again, the majority

“swerves and dodges the decisions of the United States
Supreme Court” to deny indigent defendants access to
justice, this time by refusing to retroactively apply the
rule of Halbert v Michigan, 545 US 605; 125 S Ct 2582;
162 L Ed 2d 552 (2005). See People v Bulger, 462 Mich
495, 522; 614 NW2d 103 (2000) (CAVANAGH, J., dissent-
ing). Ironically, the majority now applies the same
reasoning that the United States Supreme Court re-
jected in Halbert to conclude that Halbert should not
apply retroactively. I must respectfully dissent.
Before 1994, indigent defendants in Michigan who
had pleaded guilty could appeal as of right and were
commonly provided with appellate counsel. See, e.g.,
People v Ginther, 390 Mich 436, 444; 212 NW2d 922
(1973). In 1994, the Michigan Constitution was
amended to provide that appeal from a guilty or nolo
contendere plea was “by leave of the court.” Const 1963,
art 1, § 20. Some trial courts began to interpret this
amendment as abolishing the right to counsel for indi-
gent defendants who had pleaded guilty. Halbert, 545
US at 609. This interpretation was codified by the
Legislature in MCL 770.3a, which stated that defen-
dants who plead guilty “shall not have appellate counsel
appointed for review,” with certain exceptions.
A majority of this Court upheld the constitutionality
of MCL 770.3a in People v Harris, 470 Mich 882 (2004)
404 482 MICH 385 [Dec
DISSENTING OPINION BY CAVANAGH, J.

(relying on the analysis of Bulger, supra). The majority

came to this conclusion by reasoning that first-tier
review of plea-based convictions is discretionary, that
plea proceedings are simpler than proceedings at trial,
and that a defendant who enters a guilty plea accedes to
the state’s interest in the finality of criminal proceed-
ings. Bulger, 462 Mich at 508, 516-517; see also Halbert,
545 US at 613-614. I dissented, urging the United
States Supreme Court to “correct the constitutional
miscarriage committed by the majority” and to “issue
the decision that is uniformly directed by its past
opinions.” Bulger, 462 Mich at 522-523 (CAVANAGH, J.,
dissenting).
The United States Supreme Court did indeed correct
the error of Bulger and Harris in its 2005 Halbert
decision. There the Court held that MCL 770.3a was
unconstitutional and restored the constitutional right
to the appointment of counsel for first-tier appellate
review for indigent defendants in Michigan who had
pleaded guilty. Now the question is whether indigent
defendants whose plea-based convictions became final
between 1994 and 2005 should have the constitutional
relief Halbert demands by retroactive application of
that decision. The majority arbitrarily cuts off consti-
tutional relief to these indigent defendants, applying
the same faulty reasoning it used to deny their consti-
tutional rights in the first place.
The majority concludes that Halbert should not apply
retroactively under Teague v Lane, 489 US 288; 109 S
Ct 1060; 103 L Ed 2d 334 (1989). I observe first that
Teague is inapplicable to this case. The United States
Supreme Court has stated that “[a] close reading of the
Teague opinion makes clear that the rule it established
was tailored to the unique context of federal habeas and
therefore had no bearing on whether States could
2008] PEOPLE V MAXSON 405
DISSENTING OPINION BY CAVANAGH, J.

provide broader relief in their own postconviction pro-

ceedings than required by that opinion.” Danforth v
Minnesota, ___ US ___; 128 S Ct 1029, 1039; 169 L Ed
2d 859 (2008) (emphasis added). The Court went on to
say that “[i]t is a matter that States should be free to
evaluate, and weigh the importance of, when prisoners
held in state custody are seeking a remedy for a
violation of federal rights by their lower courts.” Id. at
___, 128 S Ct at 1041. Thus, Teague does not restrain
this Court from providing a remedy that it previously
wrongfully denied.
Nonetheless, I believe that even Teague counsels
retroactive application in this case. Teague held that,
generally, courts should not retroactively apply rules of
criminal procedure that are “new.” The rule of Halbert
is not new. First, and most obviously, the rule of Halbert
is not new because it reinstated an old rule. See, e.g.,
Ginther, supra. Halbert merely restores the law that
existed in Michigan before 1994. Thus, it is not new.
A rule may be new, under Teague, if “the result was
not dictated by precedent existing at the time the
defendant’s conviction became final.” Teague, 489 US
at 301 (opinion of O’Connor, J.). As I stated in Bulger, I
believe that the result of Halbert was uniformly directed
by the past decisions of United States Supreme Court.
Bulger, 462 Mich at 522-523 (CAVANAGH, J., dissenting).
A rule that is uniformly directed is not new.
The majority opinion concludes that the rule of
Halbert is not compelled, and thus new, because appeal
from a guilty plea in Michigan is by leave and discre-
tionary. It reasons that the application of Douglas v
California, 372 US 353; 83 S Ct 814; 9 L Ed 2d 811
(1963), was not dictated because Douglas involved a
first appeal as of right, while the first appeal of plea-
based convictions in Michigan is discretionary. The
406 482 MICH 385 [Dec
DISSENTING OPINION BY CAVANAGH, J.

majority opinion further reasons that Ross v Moffitt,

417 US 600; 94 S Ct 2437; 41 L Ed 2d 341 (1974),
appears to apply because it held that appointment of
counsel was not required when appeal is made to a
court that has discretion “to choose whether to reach
the merits of a defendant’s appeal.” Ante at 389. First,
I observe that this very reasoning was rejected by the
United States Supreme Court in Halbert. The Court
stated that “Halbert’s case is properly ranked with
Douglas rather than Ross” and, thus, held “that the
Due Process and Equal Protection Clauses require the
appointment of counsel for defendants, convicted on
their pleas, who seek access to first-tier review in the
Michigan Court of Appeals.” Halbert, 545 US at 610
(emphasis added).
Second, the fact that the defendant’s appeal in Dou-
glas was as of right was irrelevant to the outcome of
that case. Rather, the critical issue was the fact that,
“[w]hether formally categorized as the decision of an
appeal or the disposal of a leave application, the Court
of Appeals’ ruling on a plea-convicted defendant’s
claims provides the first, and likely the only, direct
review the defendant’s conviction and sentence will
receive.” Halbert, 545 US at 619. In Ross, the discretion
involved was irrespective of the merits. As the Ross
Court stated, its ruling applied to appellate courts that
may deny leave even when they conclude that the
decision on the merits in the court below was incorrect.
Ross, 417 US at 615. That is not the case when a
defendant seeks first-tier review in the Michigan Court
of Appeals. See Bulger, 462 Mich at 541-542 (CAVANAGH,
J., dissenting); Halbert, 545 US at 617 (“Michigan’s
intermediate appellate court looks to the merits of the
claims made in the application”). Further, Ross made
clear that its decision applied when a defendant had
already “received the benefit of counsel in examining
2008] PEOPLE V MAXSON 407
DISSENTING OPINION BY CAVANAGH, J.

the record of his trial and in preparing an appellate

brief on his behalf for the state Court of Appeals” and
when “a defendant’s claims of error are organized and
presented in a lawyerlike fashion to the Court of
Appeals . . . .” Ross, 417 US at 614-615. That is not the
case when a defendant seeks first-tier review in the
Michigan Court of Appeals.
Thus, this precedent does not support a claim that a
reasonable jurist could conclude that the rule of Halbert
was not compelled. To the contrary, “[t]he Michigan
Supreme Court’s reading [of] Ross to permit the denial
of counsel to an indigent defendant on appeal solely
because the appeal is discretionary [is] not a reasonable
application of Supreme Court precedent.” Bulger v
Curtis, 328 F Supp 2d 692, 702 (ED Mich, 2004).
Because I believe that the rule of Halbert was, in fact,
compelled by precedent, I believe that the rule is not
new. Thus, Halbert should apply retroactively. Even if
the rule of Halbert were new, it would represent a
“watershed” decision, which requires retroactive appli-
cation under Teague. Teague states that “a new rule
should be applied retroactively if it requires the obser-
vance of those procedures that . . . are implicit in the
concept of ordered liberty.” Teague, 489 US at 307, 311
(opinion of O’Connor, J.) (citations omitted). At issue
here is meaningful access to the courts, Ross, 417 US at
615, and the essential fairness of state-ordered proceed-
ings, Halbert, 545 US at 611. I believe that these are
matters that are “implicit in the concept of ordered
liberty.”
The majority supports its finding to the contrary
with the assertion that a state is not required to provide
“any appellate proceedings at all for defendants who
plead guilty.” Again, the United States Supreme Court
rejected this reasoning in Halbert. The Court reminded
408 482 MICH 385 [Dec
DISSENTING OPINION BY CAVANAGH, J.

that while “[t]he Federal Constitution imposes on the

States no obligation to provide appellate review of
criminal convictions,” nonetheless, once provided, “a
State may not bolt the door to equal justice to indigent
defendants.” Halbert, 545 US at 610 (internal citations
and quotation marks omitted). I conclude that the rule
of Halbert fits this exception to Teague. It should apply
retroactively.
This conclusion is supported by the fact that Dou-
glas, the case on which the United States Supreme
Court based its Halbert decision, was applied retroac-
tively. McConnell v Rhay, 393 US 2, 3; 89 S Ct 32; 21 L
Ed 2d 2 (1968). Observing this application, the Supreme
Court grouped Douglas with Gideon v Wainwright, 372
US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963), as cases
implicating the right to counsel and addressing a right
that “relates to the very integrity of the fact-finding
process.” McConnell, 393 US at 3 (internal citation and
quotation marks omitted). Thus, the majority opinion’s
attempt to distinguish this case from the sort that
announces a “watershed” rule is incorrect. Ante at
391-392. Douglas was decided on equal protection and
due process grounds, just like Halbert. Yet the Supreme
Court identified Douglas as implicating the same right
as Gideon under a different constitutional provision.
Thus, Douglas would suggest that, under Teague, Hal-
bert is a “watershed” rule requiring retroactive applica-
tion irrespective of the specific constitutional ground on
which it was decided.
But, as noted, Teague does not control the measure of
retroactivity applied by a state court. Rather, Michigan
jurisprudence provides the tools for assessment in this
case.1 The majority applies the factors stated in People
1
I am aware of the decision in Simmons v Kapture, 516 F3d 450 (CA 6,
2008). I am also aware that the petition for writ of certiorari was denied
2008] PEOPLE V MAXSON 409
DISSENTING OPINION BY CAVANAGH, J.

v Sexton, 458 Mich 43, 580 NW2d 404 (1998), to

conclude that retroactivity is not required in this case.
I believe that the Sexton factors direct the opposite
result.
The first Sexton factor, the purpose factor, states that a
law may be applied retroactively when it “concerns the
ascertainment of guilt or innocence”; however, “a new
rule of procedure . . . which does not affect the integrity of
the fact-finding process should be given prospective ef-
fect.” Id. at 63 (citations and quotation marks omitted).
The majority concludes that this factor is inapplicable
because “the appointment of counsel on appeal does not
concern the ascertainment of guilt or innocence.” Ante at
393-394. I strongly disagree. I believe the ascertainment of
guilt or innocence is at stake here because “ ‘a correct
adjudication of guilt’ involves more than just an admission
of guilt.” Bulger, 462 Mich at 560 (CAVANAGH, J., dissent-
ing); see also MCR 6.302. “Appeals after guilty pleas, too,
directly implicate a procedure without which the accuracy
of a conviction cannot be assured.” Simmons v Kapture,
516 F3d 450, 457 (CA 6, 2008) (Martin, J., dissenting),
citing Halbert, 545 US at 617. Halbert rests precisely on
the fact that a defendant’s first-tier appeal from a plea-
based conviction involves error-correction. In other words,
a defendant’s guilt or innocence is at stake. Thus, the
purpose prong directs retroactive application of Halbert.
I observe further that the majority opinion relies on
the presumption that all defendants who plead guilty
are indeed guilty. Ante at 394. As I pointed out in
Bulger, this misses the entire purpose of a first-tier
appeal from a guilty plea, where factors relevant to
in Houlihan v Michigan, ___ US ___; 129 S Ct 254; 172 L Ed 2d 191
(2008). As noted earlier, these decisions do not prohibit or affect the
application of state law to this case.
410 482 MICH 385 [Dec
DISSENTING OPINION BY CAVANAGH, J.

guilt—such as coercion, ineffective assistance of coun-

sel, and mental capacity—are meant to be adjudicated.2
Correcting these errors is relevant precisely to the
question of guilt or innocence. In McConnell, supra, the
United States Supreme Court stated the significance of
the issue at stake:
This Court’s decisions on a criminal defendant’s right to
counsel at trial, Gideon v. Wainwright, 372 US 335 (1963);
at certain arraignments, Hamilton v. Alabama, 368 US 52
[82 S Ct 157; 7 L Ed 2d 114] (1961); and on appeal, Douglas
v. California, 372 US 353 (1963), have been applied retro-
actively. The right to counsel at sentencing is no different.
As in these other cases, the right being asserted relates to
the very integrity of the fact-finding process. [McConnell,
393 US at 3 (citations and quotation marks omitted).]

The Supreme Court in Halbert observed that the error-

correction function of a first-tier review in the Michigan
Court of Appeals was crucial to its conclusions in that
case. Halbert, 545 US at 617. Where the very integrity
of the fact-finding process is at stake, retroactive appli-
cation is directed. Further, the majority’s position here
is another way of stating that a defendant who pleads
guilty accedes to the state’s interest in finality, a propo-
sition the United States Supreme Court rejected in
Halbert. Id. at 623-624.
2
In greater detail, I stated that appeal from a plea-based conviction
may involve

constitutional defects that are irrelevant to [a defendant’s] factual

guilt, double jeopardy claims requiring no further factual record,
jurisdictional defects, challenges to the sufficiency of the evidence
at the preliminary examination, preserved entrapment claims,
mental competency claims, factual basis claims, claims that the
state had no right to proceed in the first place, including claims
that a defendant was charged under an inapplicable statute, and
claims of ineffective assistance of counsel. [Bulger, 462 Mich at 561
(CAVANAGH, J., dissenting) (citations omitted).]
2008] PEOPLE V MAXSON 411
DISSENTING OPINION BY CAVANAGH, J.

The second Sexton factor is also implicated. This

factor addresses the “general reliance on the old rule.”
Sexton, 458 Mich at 60. Addressing this factor, the
Sexton Court stated that “[j]udicial decisions are gen-
erally given complete retroactive effect unless the deci-
sions are unexpected or indefensible.” Id. at 63-64,
citing People v Doyle, 451 Mich 93, 104; 545 NW2d 627
(1996). As exhaustively demonstrated in Halbert, this
rule is neither “unexpected” nor “indefensible.”
In this case, injustice will result if Halbert is not
applied retroactively. The majority’s decision in Bulger
left indigent defendants who pleaded guilty with a
“meaningless ritual in our Court of Appeals.” Bulger,
462 Mich at 581 (CAVANAGH, J., dissenting). Failure to
apply Halbert retroactively means that for a “small
group of people arbitrarily caught between Michigan’s
own protections [before 1994] and the protection of-
fered by Halbert, the ‘meaningless ritual’ of indigent
appeals continues to be a harsh and unjust reality . . . .”
Simmons, 516 F3d at 458 (Martin, J., dissenting). As
the United States Supreme Court stated in Douglas, the
case on which it relied for the rule of Halbert, “When
society acts to deprive one of its members of his life,
liberty or property, it takes its most awesome steps.”
Douglas, 372 US at 358 n 2 (citation and quotation
marks omitted). Unless Halbert is applied retroactively,
defendants whose plea-based convictions became final
during the arbitrary period between 1994 and 2005 will
be penalized by the general reliance on an unconstitu-
tional ruling of this Court. The second factor of Sexton
directs retroactive application of Halbert.
Finally, the effect on the administration of justice,
the third Sexton factor, requires retroactive application.
The very system of justice administered by this Court
rests on the fair application of fundamental rights, such
412 482 MICH 385 [Dec
DISSENTING OPINION BY CAVANAGH, J.

as the right to counsel on first-tier appellate review. As

the Supreme Court observed in Douglas:
“No general respect for, nor adherence to, the law as a
whole can well be expected without judicial recognition of
the paramount need for prompt, eminently fair and sober
criminal law procedures. The methods we employ in the
enforcement of our criminal law have aptly been called the
measures by which the quality of our civilization may be
judged.” [Douglas, 372 US at 358 n 2, quoting Coppedge v
United States, 369 US 438, 449; 82 S Ct 917; 8 L Ed 2d 21
(1962).]

The majority concludes that the effect on the admin-

istration of justice counsels against retroactivity be-
cause “[t]he state’s strong interest in finality of the
criminal justice process would be undermined.” Ante at
397. In Halbert, the United States Supreme Court
found this argument insufficient to support the denial
of appellate counsel to defendants who had pleaded
guilty. Halbert, 545 US at 623. Further, the majority’s
contention that retroactive application of Halbert would
“inundate the appellate process with new appeals” is
speculative. Ante at 398. As the majority observes, only
a small percentage of defendants who pleaded guilty
availed themselves of appointed counsel to seek an
appeal before such appointment was precluded by the
unconstitutional rule of MCL 770.3a. Ante at 396-397.
Also, appointed counsel would be prohibited from as-
serting frivolous claims for appeal by Rule 3.1 of the
Michigan Rules of Professional Conduct. And the Court
of Appeals retains discretion on whether to grant leave
to hear appeals from guilty pleas.3 Const 1963, art 1,
§ 20. Finally, as the majority also observes, a defendant
3
Of course, as an error-correcting court, the Court of Appeals must
conduct some analysis of each application for leave to appeal before
exercising its discretion on whether to hear each case. This analysis is
evidently less burdensome than actually hearing an appeal. Additionally,
2008] PEOPLE V MAXSON 413
DISSENTING OPINION BY CAVANAGH, J.

must consider the risk that an adverse ruling on appeal

may result in a more severe penalty. Ante at 395; MCR
6.312. Together, these factors suggest that only a small
number of cases with genuine and substantial issues for
appeal will receive full consideration by our state appel-
late courts. But even if the number of appeals would be
great, as the majority speculates, defendants validly
asserting claims of substantial error should be heard in
our appellate courts.
It strikes me as an ironic twist to apply the invalid
reasoning that the majority originally used in attempt-
ing to justify denying these defendants their constitu-
tional right to now deny them review retroactively. I see
no reason to deny constitutional rights to defendants on
the arbitrary basis that their convictions became final
between 1994 and 2005. On the contrary, I believe that
failure to apply the rule of Halbert retroactively is
unreasonable and constitutionally unconscionable. I
must respectfully dissent.

KELLY, J., concurred with CAVANAGH, J.

the Court would have the advantage of reviewing arguments that have
been researched and briefed by counsel.
414 482 MICH 414 [Dec

UNITED STATES FIDELITY INSURANCE & GUARANTY COMPANY

v MICHIGAN CATASTROPHIC CLAIMS ASSOCIATION
HARTFORD INSURANCE COMPANY OF THE MIDWEST
v MICHIGAN CATASTROPHIC CLAIMS ASSOCIATION

Docket Nos. 133466 and 133468. Argued October 1, 2008 (Calendar No.
5). Decided December 29, 2008.
United States Fidelity Insurance & Guaranty Company (USF&G) and
Hartford Insurance Company of the Midwest (Hartford) filed sepa-
rate 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
trial 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 trial court, Rudy J. Nichols, J.,
ruled that the MCCA could challenge the reasonableness of the
charges as a defense to a claim for indemnification, and Hartford
appealed. After consolidating the cases, the Court of Appeals, OWENS,
P.J., and WHITE and HOEKSTRA, 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).
In an opinion by Justice YOUNG, joined by Chief Justice TAYLOR
and Justices CORRIGAN and MARKMAN, the Supreme Court held:
When a member insurer’s policy provides coverage only for
reasonable charges, the MCCA has the authority to refuse to
indemnify unreasonable charges; 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.
2008] USF&G V MCCA 415

1. The Legislature granted the MCCA the authority to perform

any act necessary or proper to accomplish its purpose that is not
inconsistent with MCL 500.3104 or the MCCA’s plan of operation.
This authority includes the power to review member insurer
claims to ensure that they meet the three requirements for
indemnification set forth in MCL 500.3104(2), which are that the
claim is for the ultimate loss, that the claim was sustained under
personal protection insurance coverages, and that the loss was in
excess of the statutory threshold. If a claim does not meet the
statutory requirements, the MCCA may reject it.
2. “Personal protection insurance coverages” refers to the
no-fault personal protection insurance coverages that are gener-
ally the subject of the no-fault act. “Coverage” refers to protection
afforded by an insurance policy or the sum of risks assumed by an
insurance policy. Thus, the terms of the underlying no-fault policy
control the standard for the MCCA’s review, and neither a settle-
ment agreement nor a consent judgment modifies that standard.
3. No-fault policies written in Michigan must, at a minimum,
provide personal protection insurance benefits that include rea-
sonable charges incurred for reasonably necessary products, ser-
vices, and accommodations for an injured person’s care, recovery,
or rehabilitation. It follows that the losses sustained under per-
sonal protection insurance coverages will minimally include rea-
sonable charges, although insurers may provide broader coverage
and greater benefits than the no-fault statute requires. Accord-
ingly, claims that exceed the member insurer’s personal protection
insurance coverages do not trigger the MCCA’s obligation to
indemnify 100 percent of the claimed loss, because such claims
were not sustained under personal protection insurance coverages
as MCL 500.3104(2) requires. Rather, the MCCA is only obligated
to indemnify 100 percent of that portion of the claimed loss that
meets all three statutory requirements.
Reversed and remanded to the circuit court.
Justice MARKMAN, concurring, agreed fully with the majority
opinion, and wrote separately to explain that the MCCA’s reim-
bursement responsibilities must be determined by the “coverages”
in member insurers’ initial insurance policies, rather than in a
settlement agreement or consent judgment, in order to be consis-
tent with MCL 500.3104(7)(d), which requires the MCCA to
calculate and impose a premium on member insurers that is
sufficient to cover its expected losses and expenses.
Justice WEAVER, joined by Justices CAVANAGH and KELLY, dis-
senting, would hold that the indemnification obligation set forth in
MCL 500.3104(2) does not incorporate the reasonableness stan-
416 482 MICH 414 [Dec

dard that MCL 500.3107 requires between claimants and member

insurers; that the MCCA has the power to adjust only the practices
and procedures of its member insurers, not the payment amounts
or the reasonableness of claims; and that the MCCA’s powers are
limited to furthering the MCCA’s purposes, which do not include
determining the reasonableness of claims.

INSURANCE — NO-FAULT — PERSONAL PROTECTION INSURANCE BENEFITS — CATA-

STROPHIC CLAIMS — INDEMNIFICATION.

The Michigan Catastrophic Claims Association has the authority to

refuse to indemnify unreasonable charges for personal protection
insurance benefits if the member insurer’s policy provides cover-
age only for reasonable charges (MCL 500.3104).

Plunkett Cooney (by Jeffrey C. Gerish and Gregory

Gromek) for United States Fidelity & Guaranty Insur-
ance Company.

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 The Hartford Insurance Company of
the Midwest.
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.
2008] USF&G V MCCA 417
OPINION OF THE COURT

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.

YOUNG, J. This Court must determine whether the

Michigan Catastrophic Claims Association (MCCA) has
authority to refuse to indemnify member insurers for
unreasonable charges. In these consolidated appeals, the
MCCA refused to indemnify its member insurers, United
States Fidelity Insurance & Guaranty Company (USF&G)
and Hartford Insurance Company of the Midwest (Hart-
ford) (together, plaintiffs), for personal protection insur-
ance (PIP) benefits1 in excess of $250,000.2 The MCCA
claimed that the hourly rates for attendant care ser-
vices agreed to by plaintiffs were unreasonable and that
it was not required to reimburse member insurers for
unreasonable payments. Plaintiffs argued that the
MCCA lacked authority to refuse to indemnify their
claims on the grounds that the charges they paid were
unreasonable. We hold that when a member insurer’s
policy only provides coverage for “reasonable charges,”3
the MCCA has authority to refuse to indemnify unrea-
sonable charges. Accordingly, we reverse the judgment
of the Court of Appeals and remand for further proceed-
ings consistent with this opinion.
1
“What are commonly called ‘PIP benefits’ are actually personal
protection insurance (PPI) benefits by statute. However, lawyers and
others call these benefits PIP benefits to distinguish them from property
protection insurance benefits.” Roberts v Farmers Ins Exch, 275 Mich
App 58, 66-67 n 4; 737 NW2d 332 (2007) (citation omitted).
2
See MCL 500.3104(2)(a).
3
MCL 500.3107(1)(a).
418 482 MICH 414 [Dec
OPINION OF THE COURT
I. FACTUAL BACKGROUND

A. USF&G v MCCA, DOCKET NO. 133466

USF&G provided no-fault insurance coverage for

Daniel Migdal, who was injured in a motor vehicle
accident on August 22, 1981. Since his injury, Daniel
has required 24-hour attendant care services.
In 1988, Daniel’s father, Michael Migdal, individually
and as conservator of Daniel’s estate, filed a first party
no-fault action against USF&G, seeking to recover atten-
dant care benefits. In 1990, the parties entered into a
consent judgment that provided that USF&G would pay
$17.50 an hour for attendant care services with an adjust-
ment for inflation of 8.5 percent compounded annually.4
The increased payments occasioned by this consent
judgment have, in turn, driven this litigation. As of
2003, when this suit was filed, USF&G was paying
$54.84 an hour to Medical Management, a company
started by Mr. Migdal to provide his son’s care. Medical
Management paid the nurses who actually provided
Daniel’s care between $21.00 and $25.00 an hour plus
benefits, which raised the average hourly nursing care
cost to $32 an hour. As a result, the consent judgment
created a profit center for Mr. Migdal. Medical Manage-
ment kept the remainder of the hourly rate paid by
USF&G and recovered approximately $200,000 in prof-
its for 2003 for its operation.
The pay rate has continued to increase and, after
Daniel’s benefits exceeded the $250,000 MCCA statu-
tory threshold,5 USF&G sought indemnification from
4
The adjustment was the result of extended negotiations and compro-
mise. At the time of the settlement negotiations (the late 1980s), the cost
of medical care was rising at a rate of over 10 percent annually.
5
MCL 500.3104(2)(a). The threshold has since been increased to
$440,000. MCL 500.3104(2)(h).
2008] USF&G V MCCA 419
OPINION OF THE COURT

the MCCA under MCL 500.3104. The MCCA, however,

refused to reimburse USF&G beyond $22.05 an hour, a
rate that it considered reasonable.

B. HARTFORD v MCCA, DOCKET NO. 133468

Hartford provided no-fault insurance coverage for

Robert Allen, who was injured in a motor vehicle
accident on November 6, 2001. Allen was prescribed
24-hour attendant care services. Hartford initially paid
for those services at the rate of $20 an hour.
In 2003, Allen retained an attorney and demanded
that Hartford pay $37 an hour for attendant care
services. The parties entered into a settlement agree-
ment that provided that Hartford would pay $30 an
hour for three years (May 6, 2003, to May 6, 2006).
Hartford sought indemnification from the MCCA
under MCL 500.3104 because its payments to Allen
exceeded the $250,000 threshold. The MCCA contested
the reasonableness of the hourly rate and refused to
reimburse Hartford beyond a rate of $20 an hour.

II. PROCEDURAL HISTORY

USF&G and Hartford each filed a complaint for a

declaratory judgment against the MCCA.6 Each plaintiff
requested that the circuit court order the MCCA to
reimburse the full rate of the attendant care services
each insurer was paying its insured.
6
USF&G also sought reformation of its consent judgment with Mr.
Migdal. The court granted Mr. Migdal summary disposition under MCR
2.116(C)(8). USF&G did not file a claim of appeal from that order.
Although Mr. Migdal filed a brief in this Court responding to this Court’s
order granting leave to appeal, see n 13 infra, the time for appealing the
circuit court’s order dismissing Mr. Migdal has expired, see MCR
7.205(F)(3), and Mr. Migdal is not a party to these proceedings.
420 482 MICH 414 [Dec
OPINION OF THE COURT

The parties filed motions for summary disposition

under MCR 2.116(C)(9) and (10),7 disputing whether
the MCCA could refuse to reimburse payments that it
deemed unreasonable. The circuit courts entered con-
flicting judgments. In USF&G’s case, the court entered
summary disposition in USF&G’s favor. The court held
that MCL 500.3104 does not include a reasonableness
requirement and the court could not add one; thus,
USF&G was entitled to summary disposition because
the MCCA’s argument lacked merit. In Hartford’s case,
the court denied Hartford’s motion for summary dispo-
sition. The court held that the MCCA could refuse to
reimburse unreasonable charges and that whether the
charges in that case were reasonable was a question of
fact.8
The MCCA appealed the grant of summary disposi-
tion in USF&G’s favor, and Hartford appealed the
denial of its motion. The 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 benefits to an
insured in excess of the statutory threshold listed in
MCL 500.3104(2), regardless of the reasonableness of
these payments.”9 The Court of Appeals majority ex-
plained that “[a]lthough MCL 500.3105 and MCL
500.3107 indicate that an insurer is only required to
reimburse an insured for reasonable charges, MCL
7
The court in USF&G’s case declined to review the case under MCR
2.116(C)(9) because the parties relied on matters outside the pleadings.
MCR 2.116(G)(5).
8
Because USF&G’s motion was granted before the court had ruled on
Hartford’s motion, the court in Hartford’s case was aware of that ruling
and distinguished USF&G’s case as involving a consent judgment instead
of a settlement agreement.
9
US Fidelity Ins & Guaranty Co v Michigan Catastrophic Claims
Ass’n, 274 Mich App 184, 192; 731 NW2d 481 (2007).
2008] USF&G V MCCA 421
OPINION OF THE COURT

500.3104 does not include a reasonableness require-

ment.”10 Thus, the majority concluded that “MCL
500.3104 requires the MCCA to reimburse the insurer
for the full amount (above the statutory threshold) of
PIP benefits that the insurer is bound to pay to its
insured, regardless of the circumstances under which
that amount was determined, whether by agreement,
judgment, binding arbitration, or otherwise, or the
reasonableness of that amount.”11 Accordingly, the
Court of Appeals affirmed the grant of summary dispo-
sition in USF&G’s favor, and reversed the denial of
Hartford’s motion.12
This Court granted the MCCA’s applications for
leave to appeal in both cases and asked the parties to
address “whether MCL 500.3104(2) obligates the
[MCCA] to reimburse member insurers’ reimburse-
ment claims without regard to the reasonableness of
the member’s payments to PIP claimants.”13
10
Id. at 197.
11
Id.
12
Judge WHITE concurred and, noting that there were no allegations of
bad faith by the insurers, added:

Under the statutory framework, the determination of reason-

ableness is to be made by the insurer, or the judicial system after
litigation. . . . The statute does not contemplate that the MCCA
will become a party to the insurance contract, or possible litiga-
tion, between the insured and the insurer, with a voice regarding
whether a lesser or greater sum is reasonable under MCL
500.3107. Nor does it contemplate that the MCCA will act as a de
facto regulatory body, determining what amounts are reasonable
for which services. [Id. at 205-206 (WHITE, J., concurring).]
13
US Fidelity Ins & Guaranty Co v Michigan Catastrophic Claims
Ass’n, 481 Mich 862 (2008). The order additionally asked the parties to
consider:

(1) Whether factors to consider in determining whether the

MCCA is precluded from questioning the reasonableness of the
422 482 MICH 414 [Dec
OPINION OF THE COURT
III. STANDARD OF REVIEW

This Court reviews decisions to grant or deny sum-

mary disposition de novo.14 Addressing the issues pre-
sented in this case requires that this Court interpret
MCL 500.3104. Issues of statutory interpretation are
questions of law that this Court reviews de novo.15
reimbursement claims in these cases include the MCCA’s failure to
exercise to their full extent, before entry of the consent judgment
in Docket No. 133466 and the settlement agreement in Docket No.
133468, its powers under MCL 500.3104(7)(b) and (g) to:

(a) require notice of claims likely to involve the MCCA;

(b) require notice of subsequent developments likely to mate-

rially affect the MCCA’s interests;

(c) establish claims procedures and practices for MCCA mem-

bers; and,

(d) if the MCCA considers a member’s claims procedures and

practices inadequate, to undertake to adjust or assist in adjusting
the claim, at the member’s expense, so as to ensure that member
claims submitted to the MCCA for reimbursement are, in fact,
reasonable; and

(2) Whether, like the terms of declaratory judgments pertaining

to PIP benefits payable in the future, the terms of consent
judgments and settlement agreements pertaining to PIP benefits
that embody terms that prove over time to call for reimbursement
at a rate higher than the actual cost incurred are subject to:

(a) reduction based on the requirement that an expense must

be actually incurred before a no-fault insurer is obliged to pay it;
and

(b) redetermination from time to time of the amounts properly

allowable, based on a change in facts or circumstances after entry
of the consent judgment or settlement agreement. Cf. Manley v
DAIIE, 425 Mich 140, 157 (1986); Proudfoot v State Farm Mut Ins
Co, 469 Mich 476, 483-484 (2003).
14
Lash v Traverse City, 479 Mich 180, 186; 735 NW2d 628 (2007).
15
Id.
2008] USF&G V MCCA 423
OPINION OF THE COURT

“When interpreting a statute, our primary obligation

is to ascertain and effectuate the intent of the Legisla-
ture. To do so, we begin with the language of the
statute, ascertaining the intent that may reasonably be
inferred from its language.”16 “In interpreting the stat-
ute at issue, we consider both the plain meaning of the
critical word or phrase as well as ‘its placement and
purpose in the statutory scheme.’ As far as possible,
effect should be given to every phrase, clause, and word
in a statute.”17

IV. ANALYSIS

The parties dispute whether the MCCA may review

the reasonableness of charges for attendant care ser-
vices and refuse to indemnify a member insurer when it
deems those charges unreasonable.

A. WHETHER THE MCCA HAS AUTHORITY TO REVIEW AND REJECT

MEMBER CLAIMS

The narrower threshold issue is whether the Legis-

lature intended to permit the MCCA to conduct any
review of claims submitted by member insurers. As
stated, the language of the statute is the starting point
to determine legislative intent. MCL 500.3104 does not
expressly authorize the MCCA to review claims submit-
ted by member insurers. MCL 500.3104(8)(g), however,
does provide a broad grant of authority to the MCCA:
(8) In addition to other powers granted to it by this
section, the association may do all of the following:

* * *

16
Id. at 187.
17
Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119
(1999) (citation omitted), quoting Bailey v United States, 516 US 137,
145; 116 S Ct 501; 133 L Ed 2d 472 (1995).
424 482 MICH 414 [Dec
OPINION OF THE COURT

(g) Perform other acts not specifically enumerated in

this section that are necessary or proper to accomplish the
purposes of the association and that are not inconsistent
with this section or the plan of operation.

Accordingly, the MCCA may perform any act “necessary

or proper to accomplish” its purpose that is not incon-
sistent with § 3104 or its plan of operation.
This Court has explained the MCCA’s purpose:
It was created by the Legislature in 1978 in response to
concerns that Michigan’s no-fault law provision for unlim-
ited personal injury protection benefits placed too great a
burden on insurers, particularly small insurers, in the
event of “catastrophic” injury claims. Its primary purpose
is to indemnify member insurers for losses sustained as a
result of the payment of personal protection insurance
benefits beyond the “catastrophic” level, which has been
set at $250,000 for a single claimant. * * * In practice, the
[MCCA] acts as a kind of “reinsurer” for its member
insurers.[18]

18
In re Certified Question (Preferred Risk Mut Ins Co v Michigan
Catastrophic Claims Ass’n), 433 Mich 710, 714-715; 449 NW2d 660
(1989). This Court further explained the policy underlying the statute:

The Legislature recognized that while such claims might be rare,

they are also unpredictable, and equally as likely to strike a small or
medium-sized insurer as they are a large insurer. The obvious
problem is that the small or medium-sized companies have substan-
tially fewer cars over which to spread the costs of potential losses,
which means that the costs of providing unlimited medical and other
benefits is higher per car for such companies, putting them at a
competitive disadvantage in the state’s insurance market. In addition
to this competitive disadvantage, the Legislature considered the
practical “business difficulties” confronting all insurers as a result of
such possible catastrophic claims, such as the difficulty in determin-
ing the amount of reserves to keep on hand.

It was thought that the creation of such an association of

insurers would alleviate the competitive inequity of these cata-
strophic claims by spreading their cost throughout the industry,
and also increase the statistical basis for prediction of the overall
2008] USF&G V MCCA 425
OPINION OF THE COURT

Not every member insurer claim is entitled to indem-

nification under § 3104(2). Section 3104(2) obligates
the MCCA to indemnify member insurers as follows:
The [MCCA] shall provide and each member shall
accept indemnification for 100% of the amount of ultimate
loss sustained under personal protection insurance cover-
ages in excess of [$250,000].[19]

“Ultimate loss” is defined as “the actual loss amounts

that a member is obligated to pay and that are paid or
payable by the member, and do not include claim
expenses.”20 Therefore, incorporating that definition,
the statute provides that “[The MCCA] shall provide
and each member shall accept indemnification for 100%
of the amount of [the actual loss amounts that a
member is obligated to pay and that are paid or payable
by the member] sustained under personal protection
insurance coverages in excess of [$250,000].”
Each claim must meet the requirements of § 3104(2).
First, the claim sought to be indemnified must be for
the “ultimate loss,” i.e., “the actual loss amounts that a
member is obligated to pay and that are paid or payable
by the member.” Second, the claim must be “sustained
under personal protection insurance coverages.” And
third, the loss must be in excess of the statutory
threshold.21 The MCCA’s obligation to indemnify
cost of such claims, making the management of these liabilities
easier. See House Legislative Analysis, SB 306, March 13, 1978. [In
re Certified Question, supra at 714 n 2.]
19
The threshold loss amount is determined by the date the policy was
issued or renewed. The subject policies of these appeals were “issued or
renewed before July 1, 2002.” MCL 500.3104(2)(a). Thus, the relevant
threshold loss amount for these appeals is $250,000. Id. The current
threshold is $440,000. MCL 500.3104(2)(h).
20
MCL 500.3104(25)(c).
21
See MCL 500.3104(2)(a)-(k).
426 482 MICH 414 [Dec
OPINION OF THE COURT

“100%” of the loss is not triggered unless the member

insurer’s claim meets all three requirements.
The Legislature has made policy judgments in setting
out these requirements. It has determined that only
certain, limited claims are “catastrophic” and require
“reinsurance” to alleviate the burden placed on insur-
ers providing no-fault coverage. Thus, it is “necessary
or proper to accomplish the [MCCA’s] purposes” and
“not inconsistent with [§ 3104]” for the MCCA to
review member insurer claims to ensure that they meet
the requirements of § 3104(2).
Review of member insurer claims is also consistent
with the MCCA’s plan of operation, which, since its
original plan of operation in 1978, has provided: “The
Association shall, upon verification of the propriety and
amount of the payments made and the member’s entitle-
ment to reimbursement therefor, reimburse the member
the amount due it.” (Emphasis added.)
Moreover, in In re Certified Question (Preferred Risk
Mut Ins Co v Michigan Catastrophic Claims Ass’n), this
Court implicitly answered in the affirmative whether
review of member claims is permitted.22 There, the plain-
tiff, Preferred Risk, was a member insurer that insured
an Illinois resident under a policy written in Illinois.
The insured was catastrophically injured in an automo-
bile accident in Michigan. The plaintiff sought indem-
nification for its losses in excess of the $250,000 statu-
tory threshold.23 The MCCA denied the plaintiff’s
application for indemnification on the basis that the
insured was not a “resident.”24 This Court held that the
22
In re Certified Question, supra at 723.
23
MCL 500.3163(1) obligated the plaintiff to provide Michigan no-fault
benefits.
24
The MCCA defined “resident” as “all owners or registrants of motor
vehicles required to be registered [in Michigan] . . . .” In re Certified
Question, supra at 719.
2008] USF&G V MCCA 427
OPINION OF THE COURT

indemnification requirement of § 3104(2) only applied

to “a policy which was written in this state to provide
the security required by § 3101(1) of the no-fault
act . . . .”25 Thus, this Court implicitly held that the
MCCA could review claims to determine whether the
member insurer is entitled to indemnification because
the Court endorsed the MCCA reviewing the residency
of the insured.
In addition, In re Certified Question supports the
proposition that the MCCA may refuse to indemnify
claims that do not meet the requirements of § 3104(2).26
Concomitant with the absence of an obligation to in-
demnify is the authority to act accordingly and reject
claims that do not meet the requirements of § 3104(2).
Indeed, such authority to reject is “necessary or proper
to accomplish” the MCCA’s purpose and not inconsis-
25
Id. This Court, determining that the statute controlled over the
MCCA’s definition of “resident,” held that the statute nonetheless
contained a parallel provision to the MCCA’s definition of “resident.” As
we will discuss, this Court explained that “personal protection insurance
coverages,” as used in MCL 500.3104(2), refers to policies providing “the
compulsory security requirements of [MCL 500.3101(1)],” i.e., “ ‘resi-
dents,’ in the language of the [MCCA’s] plan of operation.” In re Certified
Question, supra at 723.
26
See also Liberty Mut Ins Co v Michigan Catastrophic Claims Ass’n, 248
Mich App 35, 42; 638 NW2d 155 (2001) (holding that the MCCA was not
obligated to indemnify a claim under a California automobile insurance
policy that was reformed into a Michigan no-fault automobile insurance
policy five years after the subject accident, and stating that “the MCCA can
refuse to indemnify claims paid under MCL 500.3163”); Farmers Ins Exch
v South Lyon Community Schools, 237 Mich App 235, 238 n 1; 602 NW2d
588 (1999) (“[T]he MCCA is not obligated to indemnify its member insurers
for amounts the insurers are not obligated to pay under their no-fault
policies.”); Transamerica Ins Group v Michigan Catastrophic Claims
Ass’n, 202 Mich App 514; 509 NW2d 540 (1993) (holding that the MCCA was
not obligated to indemnify a claim submitted by two insurers seeking to
aggregate their shared losses to exceed the $250,000 threshold); J C Penney
Cas Ins Co v Michigan Catastrophic Claims Ass’n, 177 Mich App 538
(1989), aff’d 434 Mich 901 (1990) (holding that the plaintiff insurer was not
entitled to reimbursement from the MCCA).
428 482 MICH 414 [Dec
OPINION OF THE COURT

tent with either § 3104 or the MCCA’s plan of opera-

tion.
Accordingly, we hold that MCL 500.3104(8)(g) per-
mits the MCCA to review claims submitted by member
insurers and reject those that do not meet the require-
ments of § 3104(2). That leads to the dispositive issue
whether that authority permits the MCCA to review the
reasonableness of charges for attendant care services
and refuse to indemnify a member insurer when it
deems those charges unreasonable.

B. WHETHER THE MCCA MAY REVIEW THE REASONABLENESS

OF ATTENDANT CARE CHARGES AND REFUSE TO INDEMNIFY
UNREASONABLE CHARGES

Plaintiffs argue that § 3104(2) does not contain a

“reasonableness” requirement and, instead, focus on
the fact that they suffered an “actual loss” due to an
“obligation.” Plaintiffs also emphasize the term “100%”
in § 3104(2) and argue that if the MCCA indemnifies
less than the full amount of their claim, it is not
meeting its statutory obligation.
Indeed, § 3104(2) does not contain the word “reason-
able” or any variation thereof, and plaintiffs have paid
their insureds subject to their obligations under a
consent judgment and settlement agreement, respec-
tively. Plaintiffs’ arguments, however, ignore the second
requirement of § 3104(2)—that the claim must be “sus-
tained under personal protection insurance coverages.”
In In re Certified Question, this Court held that
the reference to “personal protection insurance coverages”
under which the [MCCA] may be liable for indemnification
in the event of a catastrophic loss . . . is a shorthand
reference to the no-fault personal protection insurance
coverages that are generally the subject of the act, i.e.,
those which were written in this state to provide the
2008] USF&G V MCCA 429
OPINION OF THE COURT

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” . . . .[27]

Policies written in this state to provide the compul-

sory security requirements of § 3101(1) must comply
with the provisions of the no-fault act. MCL
500.3105(1) obligates a member insurer to pay PIP
benefits.28 MCL 500.3107(1)(a) defines PIP benefits, in
relevant part, as “[a]llowable expenses consisting of all
reasonable charges incurred for reasonably necessary
products, services and accommodations for an injured
person’s care, recovery, or rehabilitation.” Thus, a no-
27
In re Certified Question, supra at 723. Plaintiffs argue that this
statement is obiter dictum. “ ‘Obiter dictum’ is defined as ‘[a] judicial
comment made during the course of delivering a judicial opinion, but one
that is unnecessary to the decision in the case and therefore not
precedential . . . .’ ” People v Williams, 475 Mich 245, 251 n 1; 716 NW2d
208 (2006), quoting Black’s Law Dictionary (7th ed). As stated, In re
Certified Question held that § 3104(2) only applied to “a policy which was
written in this state to provide the security required by § 3101(1) of the
no-fault act.” In re Certified Question, supra at 719. The Court’s
interpretation of “personal protection insurance coverages” was not
unnecessary. Rather, it directly reflects the holding.
The dissent cites In re Certified Question for several propositions of
law, but distinguishes its holding. Despite conceding that § 3104(2)
imposes three requirements that a member insurer’s claim must meet,
the dissent nonsensically asserts that the MCCA is without authority to
determine whether a claim complies with § 3104(2). Post at 448-450 n 15.
The dissent’s position is fallacious on its face; it would rob any meaning
from what the dissent concedes are requirements for indemnification.
Moreover, the dissent attempts to limit the holding in In re Certified
Question to noncompliance with § 3104(2) that is “objectively clear.” Post
at 449 n 15. Nothing in In re Certified Question suggests such a
limitation. Rather, In re Certified Question plainly held that the MCCA is
not required to indemnify a claim that does not meet the requirements of
§ 3104(2); we do the same today.
28
MCL 500.3105(1) provides: “Under personal protection insurance an
insurer is liable to pay benefits for accidental bodily injury arising out of
the ownership, operation, maintenance or use of a motor vehicle as a
motor vehicle, subject to the provisions of this chapter.”
430 482 MICH 414 [Dec
OPINION OF THE COURT

fault policy written in this state must, at a minimum,

provide PIP benefits that include “reasonable charges
incurred for reasonably necessary products, services
and accommodations for an injured person’s care, re-
covery, or rehabilitation.” It follows that the losses
“sustained under personal protection insurance cover-
ages” will minimally include “reasonable charges.”
Insurers are free to provide broader coverage and
greater benefits than § 3107 provides.29 Indeed, insur-
ers may provide expanded coverage for actual or even
unreasonable charges.30 Thus, the member insurer’s
policy will ultimately control the standard for the
29
See Cruz v State Farm Mut Auto Ins Co, 466 Mich 588, 594; 648
NW2d 591 (2002) (“[W]here contract language is neither ambiguous, nor
contrary to the no-fault statute, the will of the parties, as reflected in
their agreement, is to be carried out, and thus the contract is enforced as
written.”).
30
Of course, such practice may be subject to the MCCA’s “takeover”
authority under MCL 500.3104(7)(g), which provides:

(7) The association shall do all of the following on behalf of the

members of the association:

* * *

(g) Establish procedures for reviewing claims procedures and

practices 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.
The dissent asserts that § 3104(7)(g) authorizes the MCCA “to adjust
only ‘procedures and practices’ of the member that produce an unrea-
sonable payment amount; the power does not include the power to adjust
the amount.” Post at 455-456. Section 3104(7)(g) permits the MCCA “to
adjust or assist in the adjustment of claims for the member on claims that
create a potential liability to the association . . . .” (Emphasis added.) As
used in § 3104(7)(g), “adjust” means “[t]o settle or arrange; to free from
differences or discrepancies. To bring to satisfactory state so that parties
2008] USF&G V MCCA 431
OPINION OF THE COURT

MCCA’s review because the policy establishes the “per-

sonal protection insurance coverages.”31
Whether the subject charges fall within the terms of
the individual policies that covered Daniel Migdal and
Robert Allen is not before this Court. The parties have
not litigated that issue and we are without the facts
necessary to resolve it. The issue before this Court is
whether the requirement that member insurer claims
are agreed, as to adjust amount of loss by fire or controversy regarding
property or estate. . . . Determination of amount to be paid to insured by
insurer to cover loss or damage sustained.” Black’s Law Dictionary (5th
ed); see also Random House Webster’s College Dictionary (1997) (“to
determine the amount to be paid in settlement of (an insurance claim)”).
Contrary to the dissent’s assertion, the MCCA’s authority is not limited
to adjusting the member insurer’s “procedures and practices”; the MCCA
is authorized to negotiate directly with the insured to reach a settlement
of the claim and, under those circumstances, the MCCA is “adjusting” the
amount. When it “adjusts” a claim, the MCCA is seeking to reduce its
liability by preventing the member insurer from accepting excess liability.
Invariably any adjustment will depend on the terms of the policy.
The instant cases are distinct from the norm, however. Here, plaintiffs
agreed to certain payments in a consent judgment and a settlement
agreement and remain bound by those agreements regardless whether the
MCCA indemnifies the entire claim or invokes its “takeover” authority.
Although member insurers are not “obligated” to pay their insureds until
the claimed expense is actually incurred, see Proudfoot v State Farm Mut
Ins Co, 469 Mich 476, 484 (2003), any opportunity to “adjust” Migdal’s and
Allen’s claims and thereby reduce plaintiffs’ liability before they become
obligated is severely limited by the terms of their agreements.
31
The dissent contends that the consent judgment and settlement
agreement became “part of the insurer’s coverage.” Post at 448. The
dissent’s attempt to bootstrap the terms of the consent judgment and
settlement agreement into the insureds’ coverages is inconsistent with
the dissent’s own definition of “coverage,” and is unpersuasive. We agree
with the dissent that “ ‘coverage’ refers to protection afforded by an
insurance policy or the sum of risks assumed by an insurance policy.”
Jarrad v Integon Nat’l Ins Co, 472 Mich 207, 217; 696 NW2d 621 (2005),
citing LeBlanc v State Farm Mut Auto Ins Co, 410 Mich 173, 204; 301
NW2d 775 (1981). Thus, the terms of the policy control the standard for
the MCCA’s review.
432 482 MICH 414 [Dec
OPINION OF THE COURT

be “sustained under personal protection insurance cov-

erages” entitles the MCCA to refuse to indemnify
unreasonable charges. We hold that when a member
insurer’s policy provides coverage only for “reasonable
charges,” the MCCA has authority to refuse to indem-
nify unreasonable charges. If the policy provides
broader coverage, the MCCA must review for compli-
ance with the broader coverage and indemnify claims
within that coverage, but it may reject claims in excess
of that coverage. Claims in excess of the member
insurer’s PIP coverages are not “sustained under per-
sonal protection insurance coverages.” Thus, those
claims do not meet the three statutory requirements of
§ 3104(2) and they do not trigger the MCCA’s obligation
to indemnify “100%” of the claimed loss. Rather, the
MCCA is only obligated to indemnify “100%” of the
portion of the claimed loss that meets all three require-
ments of § 3104(2). Accordingly, we remand these cases
to the trial court to determine the PIP coverages
provided by the individual policies at issue in these
cases and, if appropriate, whether the attendant care
charges were reasonable.32
32
Each party advances a policy argument in its favor. The MCCA
argues that the no-fault system is intended keep automobile insurance
costs affordable. See Cameron v Auto Club Ins Ass’n, 476 Mich 55, 71-72;
718 NW2d 784 (2006) (“[A] dominant legislative purpose permeating
throughout the no-fault act is to ensure that this mandatory coverage is
affordable.”). The premium the MCCA charges a member insurer is
passed on to its insureds. See In re Certified Question, supra at 729; MCL
500.3104(22). As a result, the MCCA argues, if the MCCA must incur
significant additional liability for “unreasonable charges,” no-fault insur-
ance costs will rise dramatically. In response, plaintiffs argue that
no-fault insurance was intended to provide assured, adequate, and
prompt payment. See Shavers v Attorney General, 402 Mich 554, 579-580;
267 NW2d 72 (1978) (“The goal of the no-fault insurance system was to
provide victims of motor vehicle accidents assured, adequate, and prompt
reparation for certain economic losses.”); MCL 500.3142. Plaintiffs argue
that if the MCCA may reject member insurer claims on the basis of the
2008] USF&G V MCCA 433
OPINION OF THE COURT
V. CONCLUSION

All member insurer claims must meet certain re-

quirements of § 3104(2) to be entitled to indemnifica-
tion from the MCCA. The MCCA may review those
claims for compliance with § 3104(2) because such
review is “necessary or proper to accomplish” the
MCCA’s purpose and is not inconsistent with § 3104 or
the MCCA’s plan of operation.33 The MCCA may addi-
tionally reject claims that do not meet the requirements
of § 3104(2).34 One such requirement is that the claimed
loss must be “sustained under personal protection
insurance coverages.”35 A loss “sustained under per-
sonal protection insurance coverages” is one sustained
under a policy providing “the compulsory security re-
quirements of § 3101(1) . . . .”36 Under § 3107(1)(a),
such policies minimally include “reasonable charges
incurred for reasonably necessary products, services
and accommodations for an injured person’s care, re-
reasonableness of the charges, member insurers will need to seek
assurances that the MCCA will reimburse certain payments before
making them, thus delaying payment.
Both policy arguments are compelling. It is not for this Court,
however, to favor one policy objective over the other. “[P]olicy decisions
are properly left for the people’s elected representatives in the Legisla-
ture, not the judiciary. The Legislature, unlike the judiciary, is institu-
tionally equipped to assess the numerous trade-offs associated with a
particular policy choice.” Devillers v Auto Club Ins Ass’n, 473 Mich 562,
589; 702 NW2d 539 (2005). The Legislature has made its policy choice.
Given the text of MCL 500.3104(2), we believe that the Legislature
intended to allow the MCCA to reject claims for charges in excess of the
member’s policy coverage. Thus, the parties’ competing policy arguments
are misplaced because this Court is without authority to replace the
Legislature’s choice with our own.
33
MCL 500.3104(8)(g).
34
Id.
35
MCL 500.3104(2).
36
In re Certified Question, supra at 723.
434 482 MICH 414 [Dec
CONCURRING OPINION BY MARKMAN, J.

covery, or rehabilitation.” When a member insurer’s

policy provides coverage consistent with MCL
500.3107(1)(a), the MCCA has authority to refuse to
indemnify unreasonable charges. If the policy provides
broader coverage, the MCCA may refuse to indemnify
only charges in excess of that broader coverage.
We reverse the judgment of the Court of Appeals and
remand these cases to the circuit court for proceedings
consistent with this opinion.

TAYLOR, C.J., and CORRIGAN and MARKMAN, JJ., con-

curred with YOUNG, J.

MARKMAN, J. (concurring). Although I fully agree with

the majority opinion, I write separately to address what
I think is its failure to fully explain why its definition of
“personal insurance protection coverages,” which is
limited to a member insurer’s initial insurance policy, is
required by the statute. If the majority’s definition is
correct, the MCCA will often be allowed to review
member claims for reasonableness because the policy
itself will often limit claims to “reasonable” costs.1 On
the other hand, if the dissent is correct that settlement
agreements and consent judgments are part of a mem-
ber insurer’s “coverages,” and indeed may effectively
become part of a member’s “policy,” then the MCCA
will only rarely be allowed to review claims for reason-
ableness. The question then posed is which of these
1
The dissent is correct that the reasonableness requirement of MCL
500.3107 is not integrated into the indemnification clause set forth in
§ 3104(2). Post at 457. However, the majority opinion does not attempt to
incorporate 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.
2008] USF&G V MCCA 435
CONCURRING OPINION BY MARKMAN, J.

interpretations of “personal insurance protection cov-

erages” is to be preferred under the law. In my view, the
majority’s assertion that “coverages” refers to the
“policy,” although ultimately the better definition, re-
quires additional legal analysis.
The disputed statutory provision, MCL 500.3104(2),
provides that “[the MCCA] shall provide and each
member shall accept indemnification for 100% of the
amount of the ultimate loss sustained under personal
protection insurance coverages in excess of the [statu-
tory threshold.]” In interpreting this language, our
primary goal is to ascertain and give effect to the
Legislature’s intent. McClellan v Collar (On Remand),
240 Mich App 403, 409; 613 NW2d 729 (2000). “As far as
possible, effect should be given to every phrase, clause,
and word in the statute.” Sun Valley Foods Co v Ward,
460 Mich 230, 237; 596 NW2d 119 (1999).
Here, the dissent has defined “coverages,” in MCL
500.3104(2), as follows:
Under the common meaning of “coverage,” the contrac-
tual liability amount that an insurer agrees to pay an
insured is considered a part of the insurer’s coverage.
[Black’s Law Dictionary (5th ed).] USF&G and Hartford
paid funds pursuant to a consent judgment and a settle-
ment agreement with the respective insureds. This con-
tractual liability, or coverage, owed by each insurer is the
total amount agreed to between the original contracting
parties. [Post at 448-450.]

Thus, the issue becomes whether “coverages” includes

any contractual liability, which is properly insurable
under the act, that a member insurer incurs at any
time. The answer lies, I believe, in MCL 500.3104(7)(d),
which requires that the MCCA,
[i]n a manner provided for in the plan of operation,
calculate and charge to members of the [MCCA] a total
436 482 MICH 414 [Dec
CONCURRING OPINION BY MARKMAN, J.

premium sufficient to cover the expected losses and ex-

penses of the [MCCA] that the [MCCA] will likely incur
during the period for which the premium is applicable.

This provision requires the MCCA to calculate premi-

ums that it will charge to member insurers on the basis
of the losses and expenses that the MCCA expects to
incur. A principal component of this calculation is the
frequency with which the MCCA will be required to
reimburse member insurers for catastrophic claims,
and for what amounts. Significantly, if a policy only
requires a member insurer to pay “reasonable” claims,
then the MCCA will charge a lower premium.
This conclusion is supported by two observations,
which both assume a member’s policy only requires
“reasonable” payments in accordance with MCL
500.3107. First, where a member insurer only pays
“reasonable” claims, a member will incur fewer claims
that meet the catastrophic threshold for which the
MCCA is required to provide reimbursement. Second,
the MCCA will anticipate that, when a catastrophic
claim does occur, any amount in excess of the statutory
threshold will also be “reasonable.” In other words, the
MCCA’s liability for reasonable claims will clearly be
less than payments for unreasonable claims. As a result,
the MCCA will charge a lower premium to member
insurers if those member insurers pay only “reason-
able” claims because the MCCA’s “expected losses and
expenses” will be less. Most importantly, the MCCA will
only be able to determine the appropriate premiums
that its member insurers must pay on the basis of their
original policies.
The real question of interest then becomes what
effect a subsequent settlement agreement or consent
judgment that requires an arguably unreasonable pay-
ment will have on the MCCA’s responsibility to reim-
2008] USF&G V MCCA 437
CONCURRING OPINION BY MARKMAN, J.

burse claims under the original insurance policy for

which it has already calculated and charged its pre-
mium. This depends on what, if any, effect these agree-
ments have on the original policy. There are two plau-
sible interpretations of what these types of agreements
seek to accomplish. The first is that these are entirely
new contracts, for which the member insurers have
paid no premiums as contemplated by MCL
500.3104(7)(d). Under this interpretation, the member
insurer will not have complied with the statute and will
not be entitled to reimbursement from the MCCA. The
second interpretation is that these agreements alter or
modify the existing policy by further defining that
policy’s pre-existing terms (i.e., what is meant by the
policy’s requirement that a member insurer pay reason-
able personal protection insurance benefits, as required
by MCL 500.3107). Under this latter interpretation, if a
settlement agreement purports to alter or modify the
original policy, then the member insurer will have paid
premiums to the MCCA before the accident has oc-
curred. However, any such alteration or modification to
a pre-existing policy cannot reasonably increase the
MCCA’s liability because a member will only have paid
premiums based on the MCCA’s assessment of the
initial policy.
Liberty Mut Ins Co v Michigan Catastrophic Claims
Ass’n, 248 Mich App 35; 638 NW2d 155 (2002), is
instructive on this point. Liberty Mut examined a situ-
ation in which a member insurer had an insurance
policy with an out-of-state driver who subsequently
moved to Michigan and catastrophically injured a
Michigan resident. The member insurer paid personal
protection insurance benefits to the injured Michigan
resident based on the out-of-state driver’s policy, even
though that policy at the time of the accident was not a
Michigan policy. However, in order to be eligible for
438 482 MICH 414 [Dec
CONCURRING OPINION BY MARKMAN, J.

MCCA reimbursement, the member insurer attempted

to retroactively reform its policy, including remitting
unpaid premiums, so as to comply with MCL 500.3104
before submitting its claim to the MCCA. Nevertheless,
the MCCA rejected the member insurer’s claim, and the
Court of Appeals agreed, stating:
If we were to accept plaintiff’s argument, we would set
a precedent by which an insurer could withhold premium
payments for policyholders who moved to Michigan, then,
upon a loss exceeding $250,000, the insurer could simply
reform the contract, submit the previously due premium
payments, and be reimbursed for claims paid in excess of
$250,000. Under that situation, the MCCA would be de-
prived of premiums for policies on which no claims are
made, thus defeating the “spread the risk” concept in
insurance. [Id. at 47.]

This rationale applies with equal force to settlement

agreements and consent judgments that attempt to
retroactively increase the scope of a policy’s coverage
even after a member insurer has paid its premiums to
the MCCA. Although the member insurers in the in-
stant consolidated cases have paid part of their premi-
ums to the MCCA, they have, in one sense, effectively
“misrepresented” to the MCCA what amounts they
would pay to their insured drivers in the event of a
catastrophic claim. 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.
Additionally, unlike the member insurer in Liberty
Mut, the member insurers in this case sought to reform
the policy without even purporting to pay the premiums
that would have been owed. Such a practice defeats the
very purpose of MCL 500.3104(7)(d) by denying the
2008] USF&G V MCCA 439
DISSENTING OPINION BY WEAVER, J.

MCCA the opportunity to impose a properly calculated

premium, which is essential to the MCCA’s ability (or
indeed any insurer’s ability) to collect sufficient premi-
ums to further its “risk spreading” function. This is
clearly contrary to the language of MCL 500.3104(7)(d),
which requires the MCCA to impose a premium on a
member insurer that is “sufficient to cover the expected
losses and expenses of the [MCCA] that the [MCCA] will
likely incur during the period for which the premium is
applicable.” As a result, the majority, in my judgment,
correctly concludes that the statute requires that the
original policy determine the MCCA’s reimbursement
responsibilities.

WEAVER, J. (dissenting). This Court 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.
I dissent and would hold that 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. Fur-
thermore, 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 adjust-
ment to the payment amount agreed to between claim-
ants and member insurers. Moreover, I would 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 reasonableness is not
one of its purposes. Finally, although the MCCA has no
right to directly challenge the reasonableness of a claim,
the no-fault statute does provide the MCCA with safe-
440 482 MICH 414 [Dec
DISSENTING OPINION BY WEAVER, J.

guards against negligent actions of member insurers.

Accordingly, I would affirm the judgment of the Court of
Appeals.

I. FACTS AND PROCEDURAL HISTORY

UNITED STATES FIDELITY INSURANCE & GUARANTY CO v MCCA

In the first case of these consolidated appeals, Daniel

Migdal was injured in a 1981 car accident in which he
incurred 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
provider, United States Fidelity Insurance & Guaranty
Company (USF&G), to recover expenses paid for
Daniel’s care. In 1990, the parties entered into a con-
sent 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.1 The payments would be rendered re-
gardless of whether Daniel’s parents provided the nurs-
ing care or a third party was brought in to provide the
care. The hourly rate, fixed for the first year after the
1
Mr. Migdal created a company to manage Daniel’s care. This company
acted as an intermediary using the benefit payments from USF&G to pay
the hired nurses that cared for Daniel and to pay Mr. Migdal for his
efforts in Daniel’s care. The judgment contained the caveat that if
Daniel’s condition substantially changed, the court retained jurisdiction
and could determine whether a reduction or increase in the payments
was “warranted.”
2008] USF&G V MCCA 441
DISSENTING OPINION BY WEAVER, J.

judgment, was subject to an annual increase of 8.5%.

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.2 Once the amount
paid to Mr. Migdal had reached the statutory threshold
amount of $250,000,3 the MCCA began to reimburse
USF&G for payments made to Mr. Migdal that exceeded
the threshold. However, the MCCA ultimately refused
to reimburse USF&G for the amount over $250,000
that USF&G paid Mr. Migdal under the consent judg-
ment. 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.4 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
2
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.
3
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.
4
Mr. Migdal paid $32 an hour of this amount to the nurses (including
benefits), and Mr. Migdal kept the rest as compensation for his work.
442 482 MICH 414 [Dec
DISSENTING OPINION BY WEAVER, J.

USF&G for the total amount. Meanwhile, USF&G

sought to have the consent judgment with Mr. Migdal
revised, arguing that circumstances 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. The court granted Mr. Migdal’s motion.5
Likewise, the MCCA made a motion 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 that are reasonable. In a countermotion for
summary disposition, USF&G argued that the no-fault
act required the MCCA to reimburse it for the full
amount paid to Mr. Migdal, despite any unreasonable-
ness regarding the amount paid. Alternatively, USF&G
argued that there was a question of material fact
concerning the “unreasonableness” of the consent judg-
ment.
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,”6 which included
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
5
USF&G did not appeal this decision. I 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.
6
MCL 500.3104(2).
2008] USF&G V MCCA 443
DISSENTING OPINION BY WEAVER, J.

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 incurred 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.
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 rendered.
Hartford filed a complaint for a declaratory judgment
that would require the MCCA to pay Hartford
$571,847.21 as reimbursement for payments exceeding
the no-fault threshold. Additionally, Hartford sought a
declaration that the MCCA must reimburse 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 disposi-
tion, arguing that the no-fault act required the MCCA
to reimburse Hartford 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 pay-
ments and that there was insufficient discovery con-
cerning the reasonableness of the amount of the pay-
444 482 MICH 414 [Dec
DISSENTING OPINION BY WEAVER, J.

ments. The circuit court judge ruled that

reasonableness was an element in determining how
much the MCCA must reimburse Hartford and that
there was insufficient discovery to determine whether
the payments were reasonable. 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
threshold.”7 (Emphasis in the original). The MCCA
sought leave to appeal in this Court, and this Court
granted leave.8

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
7
United States Fidelity Ins & Guaranty Co v Michigan Catastrophic
Claims Ass’n, 274 Mich App 184, 192; 731 NW2d 481 (2007).
8
481 Mich 862 (2008).
2008] USF&G V MCCA 445
DISSENTING OPINION BY WEAVER, J.

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) (quo-
tations 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). However, “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 contested provi-
sions must be read in relation to the statute as a whole
and work in mutual agreement. In re Certified Ques-
tion, 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
446 482 MICH 414 [Dec
DISSENTING OPINION BY WEAVER, J.

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.
In interpreting § 3104, this Court first must determine
how § 3104(2) corresponds with § 3107 and how these two
provisions correspond within the scheme of the entire
statute. Section 3104(2) requires that the MCCA “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 . . . . ”9 Section
3107(1)(a) defines “personal protection insurance ben-
efits” as “[a]llowable expenses consisting of all reason-
able charges incurred for reasonably necessary prod-
ucts, services and accommodations for an injured
person’s care, recovery or rehabilitation.” This provi-
sion requires that all PIP benefits claimed and paid
between the insurer and the insured must be reason-
able. The MCCA argues that this Court should incorpo-
rate the § 3107 definition of “benefits” into § 3104(2)
where § 3104(2) refers to “coverages.” However, I would
decline to do so because the phrase “personal protection
insurance benefits” has a distinct meaning from the
phrase “personal protection insurance coverages” that
is found in § 3104(2).
When the Legislature uses different words, the words
are generally intended to connote different meanings.
9
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)-(k).
2008] USF&G V MCCA 447
DISSENTING OPINION BY WEAVER, J.

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. This construction rule
is the corollary to the rule that “words used in one place in
a statute have the same meaning in every other place in
the statute.” Little Caesar Enterprises v Dep’t of Trea-
sury, 226 Mich App 624, 630; 575 NW2d 562 (1997).
Therefore, I disagree with the MCCA and would hold that
the definition of personal protection insurance benefits
found in § 3107(1)(a) (including the reasonableness stan-
dard) 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,10 the
proximity of these two terms does not mean that they
are synonymous.
10
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 in-

curred for reasonably necessary products, services and accommoda-
tions for an injured person’s care, recovery, or rehabilitation. Allow-
able expenses within personal protection insurance coverage shall not
include charges for a hospital room in excess of a reasonable and
customary charge for semiprivate accommodations . . . or for funeral
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.)
448 482 MICH 414 [Dec
DISSENTING OPINION BY WEAVER, J.

Section 3107 excludes from the definition of “allow-

able expenses” within PIP “coverages” 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, since “coverages” is never given a
more restrictive definition elsewhere in the statute, the
word must be afforded its ordinary everyday meaning.
Sun Valley, 460 Mich at 237 (“The statutory language
must be read and understood in its grammatical con-
text, 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,”11 as
“protection against a risk or risks specified in an
insurance policy,”12 as “the risks within the scope of an
insurance policy,”13 and as the “amount and extent of
risk covered by insurer.”14 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.15 USF&G and Hartford paid
11
Webster’s II New College Dictionary (1995).
12
Random House Webster’s Dictionary (2001).
13
Black’s Law Dictionary (7th ed).
14
Black’s Law Dictionary (5th ed).
15
I agree with the majority insofar as it concludes that the MCCA was
required to indemnify the insurer for (1) the ultimate loss; (2) sustained
under personal protection insurance coverages; and (3) in excess of the
2008] USF&G V MCCA 449
DISSENTING OPINION BY WEAVER, J.

funds pursuant to a consent judgment and a settlement

statutory threshold. However, the majority erroneously limits the term
“coverages” by incorporating into its definition the reasonableness require-
ment for “benefits” found in § 3107. However, as the various definitions of
“coverage” reveal, “coverages” is not such a specific term that it can be
limited to the amount of “benefits” payable under a policy. Rather, “cover-
ages” is a broad term that applies to different categories of risks. Hence, the
Legislature used “benefits” and “coverages” as distinct terms with distinct
meanings. By incorporating the reasonableness requirement of “benefits”
into “coverages,” the majority blurs the meaning of the terms and ignores
the broad common meaning of “coverages.”
The majority opinion relies significantly on language from In re
Certified Question that limits the indemnification requirement of
§ 3104(2) to “a policy which was 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.’ ” In re Certified Question, 433 Mich at 723. The majority seizes on
this language as “implicitly” holding that the MCCA may review claims
to determine whether members are entitled to indemnification.
The majority’s reliance on In re Certified Question in this case is
flawed. First, it notes that the In re Certified Question Court allowed the
MCCA to determine whether the insured was a “resident” of the state.
Once the residency question was resolved, the Court determined that the
MCCA was not required to indemnify the insurer because § 3104(2) does
not apply to PIP payments to nonresidents. Therefore, the benefits at
issue in In re Certified Question were paid pursuant to the requirements
of § 3163 of the no-fault act, not § 3101. By contrast, the policies at issue
here clearly were written to provide the security required by § 3101. In re
Certified Question at most only gave the MCCA the authority to reject
indemnification for benefits paid to nonresidents under § 3163. Thus, to
the extent that the majority opinion relies on In re Certified Question as
determinative here, it errs. The majority goes too far by endorsing an
extension of the holding of In re Certified Question to allow the MCCA to
resolve any question about whether § 3104(2) applies.
Further, in In re Certified Question, once the residency question was
answered, it was objectively clear from the statutory language that
§ 3104(2) did not apply. In contrast, in this case the majority extends the
reasoning of In re Certified Question to allow the MCCA to make
subjective “reasonableness” determinations about the insurer’s payment
of PIP benefits. Yet nothing in the statutory scheme explicitly gives the
MCCA the authority to make such a determination. The majority claims
that “[c]oncomitant with the absence of an obligation to indemnify is the
authority to act accordingly and reject claims that do not meet the
450 482 MICH 414 [Dec
DISSENTING OPINION BY WEAVER, J.

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 500.3107 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
§ 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 agreed between the insurer
and the insured, and subject to PIP coverage. The
ultimate loss specifically refers to coverage, which is
broader than benefits and is not statutorily limited to
reasonable payments.16
requirements of § 3104(2).” Ante at 427. I disagree. Again, In re Certified
Question only relieved the MCCA of its obligation to indemnify benefits
paid under § 3163. In re Certified Question did not, explicitly or implicitly,
grant the MCCA additional authority beyond the authority granted to it
by the plain language of the statute.
16
The MCCA argues that if there is not a reasonableness factor for
them to enforce, then the member insurers will have no incentive to
make reasonable settlement deals 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
2008] USF&G V MCCA 451
DISSENTING OPINION BY WEAVER, J.

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
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 insurance agency, and conse-
quently it is not a reinsurance agency either. 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 insurance members and
the insured. Section 3107 “makes both reasonableness
and necessity explicit and necessary 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 com-
pany that has the right to deny a claim (or part of a
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.
452 482 MICH 414 [Dec
DISSENTING OPINION BY WEAVER, J.

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 33,
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 the insured
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
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.17
17
Presumably, under the statute, the costs of this trial would be
covered or charged to the member insurer. See MCL 500.3104(7)(g) (the
MCCA “may charge the cost of adjustment to the member” that the
2008] USF&G V MCCA 453
DISSENTING OPINION BY WEAVER, J.

In essence, under the MCCA’s preferred outcome,

when a member insurer makes an agreement with an
insured (often in a court 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. The member
insurer could then force a jury trial with every cata-
strophically injured claimant under this benefit in order
to secure a verdict with a “reasonable” stamp on the
result. This outcome goes against the legislative pur-
pose of assuring efficient and quick recovery for claim-
ants 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 accidents 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-
lature specifically laid out powers that the MCCA could
exercise to guard against the possibility that an insurer
might take inadequate steps to obtain a review and
reasonable settlement of catastrophic claims. MCL
500.3104(7)(b) states that the MCCA shall:
Establish 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

MCCA deems to have inadequate practices or procedures); MCL

500.3104(7)(b) (“Solely for the purpose of reporting claims, the member
shall in all instances consider itself legally liable for the injuries or
damages.”).
454 482 MICH 414 [Dec
DISSENTING OPINION BY WEAVER, J.

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.][18]

This statutory language establishes that the MCCA

must create a structure whereby members are bound
and liable to the MCCA to deliver paperwork regarding
potential claims that would exceed the threshold and
consequently affect the MCCA. The MCCA’s plan of
operation likewise echoes these statutory require-
ments.19 Specifically, this language requires that the
MCCA’s safety check over the member’s claim must
occur upon the member’s anticipation that the payment
will affect the MCCA, or if the agreement has already
been made, when circumstances change and the mem-
ber believes the payment to the insured will soon affect
the MCCA.
It is only at these times, not after, that the MCCA can
take action regarding the claim. MCL 500.3104(7)(g).
Accordingly, the MCCA must respond in accordance
with § 3104(7)(g). Under § 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-

18
Section 3104 includes numerous other rules for the MCCA, such as
membership requirements, liability, and creation of a “plan of operation.”
19
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.
2008] USF&G V MCCA 455
DISSENTING OPINION BY WEAVER, J.

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.]

More clearly, 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.20
Upon a finding of inadequacy, the MCCA can adjust the
practices or procedures of the member.21 One of the key
protections here is that MCCA has the power and duty
to adjust only “procedures and practices” of the mem-
ber that produce an unreasonable payment amount; the
20
The MCCA argued that since 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 starting general presumption and purpose of the MCCA
is to indemnify insurers for payments beyond the threshold amount, so
that smaller insurance firms can continue to exist in the no-fault world of
Michigan.
21
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
be another member) shall audit and inspect such member’s
records and compile the required information and data. [Art X,
§ 10.02.]
456 482 MICH 414 [Dec
DISSENTING OPINION BY WEAVER, J.

power does not include the power to adjust the

amount.22 The MCCA has the power to adjust situations
that it anticipates will compromise its indemnification
or will require it to pay unreasonable claims only if it
can find fault with the member’s methods or calculation
of charges. Furthermore, the MCCA has the power, in
adjusting the procedures and practices of member in-
surers, to require member insurers to inform the MCCA
of any claim that could foreseeably exceed the statutory
threshold and to afford the MCCA the opportunity to
object to proposed settlement agreements regarding
those claims. By requiring submission of proposed
settlement agreements for the MCCA approval, the
MCCA could protect against having to later pay unrea-
sonable claims from member insurers. The exercise of
these powers is the MCCA’s safeguard from 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
22
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 adjust a member insurer’s procedures and practices
with regard to the reasonableness of the amounts paid to insureds. 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 claim
made by the insured to the member insurer, not the reimbursement claim
made by the member insurer to the MCCA. Thus, 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. With regard to the reasonableness of the amount paid to the
insured, the amount is still dictated by the amount that the member
insurer is “obligated” to pay to the insured.
2008] USF&G V MCCA 457
DISSENTING OPINION BY WEAVER, J.

to accomplish the purposes of the association and that

are not inconsistent with this section or the plan of
operation.” However, this section does not give the
MCCA carte blanche to simply avoid whichever member
insurer’s agreement that it finds unreasonable. The
power granted under § 3104(8)(g) is limited to accom-
plishing the “purposes of the association.” More impor-
tantly, the exercise of this power cannot be “inconsis-
tent with this section or the plan of operation.” Id. The
plan of operation, created by § 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, I
would interpret § 3104(8)(g) as granting the MCCA the
limited power to further its purpose of prompt and
efficient indemnification to its members. To interpret
that section as granting any further power, such as the
power to decline indemnification on the basis of the
reasonableness of the indemnification amount, would
be inconsistent with the intention of the Legislature.

IV. CONCLUSION

I would hold that the indemnification obligation set

forth in § 3104(2) does not incorporate the reasonable-
ness standard that § 3107 requires between claimants
and member insurers. Furthermore, the powers
granted to the MCCA in § 3104(7) are limited to adjust-
ing the “practices and procedures” of the member
insurers and do not encompass adjustment to the
payment amount agreed to between claimants and
member insurers.
458 482 MICH 414 [Dec
DISSENTING OPINION BY WEAVER, J.

Finally, I would hold that the power granted to the

MCCA under § 3104(8)(g) is limited to furthering the
purposes of the MCCA, and that determining reason-
ableness is not one of its purposes.
Accordingly, I dissent and would 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 regardless
of the reasonableness of the amount.

CAVANAGH and KELLY, JJ., concurred with WEAVER, J.

2008] ODOM V WAYNE CO 459

ODOM v WAYNE COUNTY

Docket No. 133433. Argued October 1, 2008 (Calendar No. 4). Decided
December 30, 2008.
Amanda J. Odom brought an action in the Wayne Circuit Court against
Wayne County, Christine Kelly, and the city of Detroit after Kelly, a
Wayne County sheriff’s deputy, cited Odom for a prostitution-related
offense and the prosecution dismissed the charges. Odom alleged
false imprisonment and malicious prosecution. The city was dis-
missed from the lawsuit. Kelly and the county asserted affirmative
defenses of governmental immunity and subsequently moved for
summary disposition on that ground. The court, William J. Giovan, J.,
granted the county summary disposition, but denied the motion with
respect to Kelly. Despite the allegations of intentional torts, the trial
court concluded that Odom was proceeding under a theory of gross
negligence and found that a factual question remained concerning
probable cause for Odom’s arrest. The Court of Appeals, FORT HOOD,
P.J., and TALBOT and SERVITTO, JJ., affirmed on other grounds in an
unpublished opinion per curiam issued February 1, 2007 (Docket No.
270501), holding that, for Kelly to be protected by governmental
immunity, her intentional acts had to be justified or objectively
reasonable under the circumstances, rather than not grossly negli-
gent. The Supreme Court initially denied Kelly’s application for leave
to appeal, 480 Mich 1015 (2008), but granted the application on
reconsideration, 480 Mich 1184 (2008).
In an opinion by Justice YOUNG, joined by Chief Justice TAYLOR
and Justices WEAVER, CORRIGAN, and MARKMAN, the Supreme Court
held:
The grant of governmental immunity in MCL 691.1407(2) is
limited to negligent torts. MCL 691.1407(3) preserves the law of
intentional torts as it existed before July 7, 1986, including the
grant of governmental immunity from intentional-tort liability.
Thus, under the test of Ross v Consumers Power Co (On Rehear-
ing), 420 Mich 567 (1984), governmental employees enjoy qualified
immunity for intentional torts. A governmental employee must
raise governmental immunity as an affirmative defense and estab-
lish (1) that the employee undertook the challenged acts during
the course of employment and that the employee was acting, or
460 482 MICH 459 [Dec

reasonably believed that he or she was acting, within the scope of

his or her employment, (2) that the employee undertook the acts in
good faith, or did not undertake them with malice, and (3) that the
acts were discretionary, rather than ministerial, in nature. Be-
cause the trial court erroneously determined that Odom’s claims
sounded in gross negligence and used the wrong legal standard, it
failed to address these questions, finding only that a factual
question remained concerning the existence of probable cause. The
Court of Appeals also failed to conduct the proper inquiry under
Ross, focusing instead on whether Kelly’s conduct was justified or
objectively reasonable. On remand, the trial court must reconsider
Kelly’s motion for summary disposition in light of the Ross test
and determine if Kelly adequately supported her claim of govern-
mental immunity given Odom’s allegations of intentional torts.
Trial court order vacated with respect to Kelly, Court of
Appeals judgment vacated, and case remanded to trial court for
further proceedings.
CAVANAGH and KELLY, JJ., concurred in the result only.

GOVERNMENTAL IMMUNITY — GOVERNMENTAL EMPLOYEES — TORTS — INTEN-

TIONAL TORTS.

A governmental employee enjoys qualified immunity from liability for

intentional torts; the governmental employee must raise governmen-
tal immunity as an affirmative defense and establish (1) that the
employee undertook the challenged acts during the course of employ-
ment and that the employee was acting, or reasonably believed that
he or she was acting, within the scope of his or her employment, (2)
that the employee undertook the acts in good faith, or did not
undertake them with malice, and (3) that the acts were discretionary,
rather than ministerial, in nature (MCL 691.1407[3]).

Sakis & Sakis, P.L.C. (by Jason R. Sakis and Ray-

mond S. Sakis), for Amanda J. Odom.

Zausmer, Kaufman, August, Caldwell & Tayler, P.C.

(by Mark J. Zausmer and Carson J. Tucker), for Chris-
tine Kelly.
Amici Curiae:

Kym L. Worthy, Prosecuting Attorney, and Timothy

A. Baughman, Chief of Research, Training, and Ap-
peals, for the Wayne County Prosecutor’s Office.
2008] ODOM V WAYNE CO 461
OPINION OF THE COURT

John A. Lyons for the Michigan Association of Police

Organizations.

Cummings, McClorey, Davis & Acho, P.L.C. (by

Karen M. Daley and T. Joseph Seward), for the Michi-
gan Municipal Risk Management Authority.

Plunkett Cooney (by Mary Massaron Ross) for the

Michigan Municipal League Liability and Property Pool
and the Michigan Municipal League.

Michael A. Cox, Attorney General, and B. Eric Res-

tuccia, Solicitor General, for the Attorney General.

YOUNG, J. In this case, we are asked to determine

when a governmental employee is immune from liabil-
ity for an intentional tort. We hold that MCL
691.1407(3) of the governmental tort liability act
(GTLA), which explicitly maintains “the law of inten-
tional torts as it existed before July 7, 1986,” grants
immunity to governmental employees from intentional-
tort liability to the extent allowed by the common law
before July 7, 1986. We therefore reaffirm and apply the
test concerning intentional-tort immunity outlined in
Ross v Consumers Power Co (On Rehearing).1 Under the
Ross test, governmental employees enjoy qualified im-
munity for intentional torts. A governmental employee
must raise governmental immunity as an affirmative
defense and establish that (1) the employee’s chal-
lenged acts were undertaken during the course of
employment and that the employee was acting, or
reasonably believed he was acting, within the scope of
his authority, (2) the acts were undertaken in good
faith, and (3) the acts were discretionary, rather than
ministerial, in nature. Neither the trial court nor the
1
420 Mich 567; 363 NW2d 641 (1984).
462 482 MICH 459 [Dec
OPINION OF THE COURT

Court of Appeals considered whether the governmental

employee was entitled to governmental immunity un-
der the test provided in Ross. Accordingly, we vacate the
trial court’s order with respect to defendant, vacate the
judgment of the Court of Appeals and remand to the
trial court to apply the proper test.

I. FACTS AND PROCEDURAL HISTORY

Wayne County Sheriff’s Deputy Christine Kelly (de-

fendant) investigated prostitution and controlled sub-
stances offenses in the department’s “morality unit.” At
the time of the incident giving rise to the present case,
she had 10 years’ experience and had made more than
500 prostitution-related arrests. On February 11, 2004,
she was conducting surveillance near the intersection of
Woodward Avenue and Burlingame Street in the city of
Detroit. Defendant claimed that plaintiff, Amanda Jean
Odom, walked back and forth along Woodward while
making eye contact with the drivers of cars passing by,
a method used by prostitutes to attract the attention of
potential customers. She observed plaintiff approach
the driver’s side window of a car parked in a liquor store
parking lot and then enter the back seat. The car drove
to a nearby grocery store; plaintiff went inside for
approximately five minutes and returned to the car,2
which then drove away.
After contacting her supervisor and calling for
backup, defendant followed the car down Woodward
Avenue and into a residential area. Detroit police offic-
ers stopped the car at a point that, as it turned out, was
only two blocks from plaintiff’s home. The officers drew
their guns and ordered plaintiff and the two female
2
Defendant asserted that it is not uncommon for a prostitute to go into
a store for a short time to purchase alcohol or condoms and return to the
customer’s car.
2008] ODOM V WAYNE CO 463
OPINION OF THE COURT

passengers out of the vehicle.3 The women were all

handcuffed and questioned.4
Upon being stopped, plaintiff asserted her innocence.
She explained that her friend had driven her home from
her place of employment and showed that she was still
wearing her work identification badge. She further
explained that her friend had dropped her off at a bank
and driven around the block. However, plaintiff ex-
plained that she could not enter the bank because the
police were apparently stopping a robbery in progress.
She looked north and south before sighting her friend’s
car in a nearby parking lot. Plaintiff walked to the car,
entered the back seat, and was driven to a grocery store,
where she used the ATM and purchased some groceries.
After relating her version of events to the officers,
plaintiff overheard one officer tell defendant, “Well it’s
your call.” Defendant issued plaintiff a criminal citation
for “Disorderly Conduct (Flagging) Impeding the Flow
of Vehicular and Pedestrian Traffic”—an offense fre-
quently associated with prostitution. Plaintiff claims
that, when she objected to the citation, defendant
became angry and told her to “fight it.”
Plaintiff was ordered to appear for arraignment one
week later. When she appeared, however, the district
court had no record of the citation. Plaintiff contacted
both the Detroit Police Department and the Wayne
County Sheriff’s Department to determine the status of
the charges against her. Upon learning that the record
3
There was also a three-year-old child in the car.
4
Defendant claimed that her suspicions of plaintiff were not alleviated
by the fact that the vehicle’s occupants were all female. Defendant
testified in her deposition that prostitutes often work in teams from a car
and drive each other to and from “work.” Defendant also explained that
females may solicit a prostitute to purchase controlled substances on
their behalf.
464 482 MICH 459 [Dec
OPINION OF THE COURT

of plaintiff’s citation had been lost, defendant issued a

new citation and had the charges reinstated. When
plaintiff appeared for arraignment a second time in
June 2004, the court required her to attend an AIDS
awareness class for sex offenders. The case was post-
poned several times between June and December 2004.
The prosecution finally dismissed the charges on De-
cember 6, 2004, because of insufficient evidence. The
dismissal order indicated that the parties stipulated to
the existence of probable cause. Neither plaintiff nor
her counsel signed the dismissal form, and plaintiff
denies that she made such a stipulation.
Plaintiff filed suit against defendant, Wayne County,
and the city of Detroit, alleging false imprisonment and
malicious prosecution. The parties stipulated to the
dismissal of the city of Detroit early in the proceedings.
In their answer to plaintiff’s complaint, defendant and
Wayne County raised “individual immunity” and “gov-
ernmental immunity,” respectively, as affirmative de-
fenses. Following discovery, defendant and Wayne
County also filed a joint motion for summary disposi-
tion based on governmental immunity, MCR
2.116(C)(7), and failure to create a genuine issue of
material fact, MCR 2.116(C)(10).5 The trial court
granted the county summary disposition on the basis of
the governmental immunity conferred by MCL
691.1407(1).6
The trial court denied defendant summary disposi-
tion. Although plaintiff alleged that defendant had
5
The motion for summary disposition also refers to MCR 2.116(C)(8);
however, defendant made no arguments based on that rule. Moreover, in
a subsequent motion for clarification of the trial court’s order, defendant
asserted that she sought summary disposition under (C)(7) and (10) and
did not mention (C)(8).
6
Subsection 1 provides immunity to governmental agencies when
conducting governmental functions. It is well established that “the
2008] ODOM V WAYNE CO 465
OPINION OF THE COURT

committed the intentional torts of false imprisonment

and malicious prosecution, the trial court concluded
that plaintiff was proceeding under a gross negligence
theory because she had not alleged “an intentional act”
such as excessive force. The trial court presumably
considered whether defendant was entitled to the im-
munity conferred by MCL 691.1407(2); however, it did
not explicitly cite the statute. The court found that
there remained factual questions regarding whether
defendant had probable cause to arrest and prosecute
plaintiff. The trial court indicated that these factual
questions prevented it from determining whether de-
fendant was entitled to immunity as a matter of law.
The court thereby treated governmental immunity as
an affirmative defense that could be proved at trial.
The Court of Appeals affirmed on other grounds. The
Court of Appeals panel made no mention of subsection
3, analyzing only the requirements of subsection 2.7 The
panel held that plaintiff had indeed alleged intentional
torts. Therefore, to be protected by governmental im-
munity, the challenged acts undertaken by defendant
had to be “justified” or “objectively reasonable under
the circumstances,” rather than not grossly negligent.8
The panel held that, given the conflicting evidence,
whether defendant’s conduct was justified could not be
decided as a matter of law.9
management, operation, and control of a police department is a govern-
mental function.” Mack v Detroit, 467 Mich 186, 204; 649 NW2d 47
(2002).
7
Odom v Wayne Co, unpublished opinion per curiam of the Court of
Appeals, issued February 1, 2007 (Docket No. 270501), p 2.
8
Id. at 2-3, citing VanVorous v Burmeister, 262 Mich App 467, 480; 687
NW2d 132 (2004), Sudul v Hamtramck, 221 Mich App 455, 458; 562
NW2d 478 (1997), and Brewer v Perrin, 132 Mich App 520, 528; 349
NW2d 198 (1984).
9
Odom, unpublished opinion per curiam at 3.
466 482 MICH 459 [Dec
OPINION OF THE COURT

Initially, this Court denied defendant’s application

for leave to appeal.10 However, upon reconsideration, we
determined that this area of the law had fallen into
disarray and required clarification. We granted defen-
dant’s application for leave to appeal and directed the
parties to address the following issues:
(1) what is the proper interpretation of MCL
691.1407(3) (“[MCL 691.1407(2)] does not alter the law of
intentional torts as it existed before July 7, 1986.”); (2) can
intentional torts claims be brought under MCL
691.1407(2); and (3) for an intentional tort claim, what
must a plaintiff plead to avoid governmental immunity?[11]

II. STANDARD OF REVIEW

We review de novo a trial court’s determination

regarding a motion for summary disposition. Under
MCR 2.116(C)(7), the moving party is entitled to sum-
mary disposition if the plaintiff’s claims are “ ‘barred
because of immunity granted by law . . . .’ ”12 The mov-
ing party may support its motion for summary disposi-
tion under MCR 2.116(C)(7) with “affidavits, deposi-
tions, admissions, or other documentary evidence,” the
substance of which would be admissible at trial.13 “The
contents of the complaint are accepted as true unless
contradicted” by the evidence provided.14
In relation to a motion under MCR 2.116(C)(10), we
similarly review “the pleadings, admissions, and other
evidence submitted by the parties in the light most
10
Odom v Wayne Co, 480 Mich 1015 (2008).
11
Odom v Wayne Co, 480 Mich 1184 (2008).
12
Glancy v City of Roseville, 457 Mich 580, 583; 577 NW2d 897 (1998)
(citation omitted).
13
Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999); see
also MCR 2.116(G).
14
Maiden, 461 Mich at 119.
2008] ODOM V WAYNE CO 467
OPINION OF THE COURT

favorable to the nonmoving party. Summary disposition

is appropriate if there is no genuine issue regarding any
material fact and the moving party is entitled to judg-
ment as a matter of law.”15
This decision also requires us to interpret the provi-
sions of § 7 of the GTLA, MCL 691.1407. We review de
novo questions of statutory interpretation.16 The pri-
mary goal of statutory interpretation is to discern the
intent of the Legislature.17 “To do so, we begin with the
language of the statute, ascertaining the intent that
may reasonably be inferred from its language. When the
language of a statute is unambiguous, the Legislature’s
intent is clear and judicial construction is neither
necessary nor permitted.”18

III. ANALYSIS

A. HISTORY OF THE GOVERNMENTAL TORT LIABILITY ACT

Historically, governmental immunity was a common-

law doctrine. In 1961, however, this Court abolished
common-law governmental immunity in Williams v
Detroit.19 Although the Court almost immediately
thereafter limited Williams and held that governmental
immunity was abolished only in relation to municipali-
ties,20 the Legislature reacted by enacting the first
version of the GTLA in 1965. The statute restored
governmental immunity for municipalities and pro-
vided “uniform treatment for state and local agen-
15
Brown v Brown, 478 Mich 545, 551-552; 739 NW2d 313 (2007).
16
Wayne Co v Hathcock, 471 Mich 445, 455; 684 NW2d 765 (2004).
17
Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich 578, 583;
624 NW2d 180 (2001).
18
Lash v Traverse City, 479 Mich 180, 187; 735 NW2d 628 (2007).
19
364 Mich 231; 111 NW2d 1 (1961).
20
McDowell v State Hwy Comm’r, 365 Mich 268; 112 NW2d 491 (1961).
468 482 MICH 459 [Dec
OPINION OF THE COURT

cies.”21 The statute did not address immunity for gov-

ernmental officers or employees. Thus, governmental
immunity for individuals continued to be completely “a
creature of judicial decision-making.”22
In 1984, Ross v Consumers Power Co (On Rehearing)
comprehensively described the common-law test for
individual governmental immunity from all tort liabil-
ity. In Ross, judges, legislators, and the highest execu-
tive officials at all levels of government were given
immunity from all tort liability when acting within the
scope of their judicial, legislative, or executive author-
ity.23 Lower-level governmental officials and employees
were afforded qualified immunity from all tort liability
if they met all the following conditions: (1) the acts were
taken during the course of employment and the employ-
ees were acting, or reasonably believed that they were
acting, within the scope of their authority, (2) the acts
were taken in good faith, and (3) the acts were
discretionary-decisional, as opposed to ministerial-
operational.24
The Legislature amended the GTLA in 1986 in
response to Ross. Section 7 of the GTLA now confers
qualified immunity to individual governmental actors
as follows:
(2) Except as otherwise provided in this section, and
without regard to the discretionary or ministerial nature of
the conduct in question, each officer and employee of a
governmental agency, each volunteer acting on behalf of a
governmental agency, and each member of a board, council,
commission, or statutorily created task force of a govern-
mental agency is immune from tort liability for an injury to

21
Ross, 420 Mich at 606.
22
Id. at 629.
23
Id. at 633.
24
Id. at 633-634.
2008] ODOM V WAYNE CO 469
OPINION OF THE COURT

a person or damage to property caused by the officer,

employee, or member while in the course of employment or
service or caused by the volunteer while acting on behalf of
a governmental agency if all of the following are met:
(a) The officer, employee, member, or volunteer is acting
or reasonably believes he or she is acting within the scope
of his or her authority.
(b) The governmental agency is engaged in the exercise
or discharge of a governmental function.
(c) The officer’s, employee’s, member’s, or volunteer’s
conduct does not amount to gross negligence that is the
proximate cause of the injury or damage.
(3) Subsection (2) does not alter the law of intentional
torts as it existed before July 7, 1986.

* * *

(5) A judge, a legislator, and the elective or highest

appointive executive official of all levels of government are
immune from tort liability for injuries to persons or dam-
ages to property if he or she is acting within the scope of his
or her judicial, legislative, or executive authority.

* * *

(7) As used in this section:

(a) “Gross negligence” means conduct so reckless as to
demonstrate a substantial lack of concern for whether an
injury results.[25]

B. INTERPRETATION OF SUBSECTIONS 2 AND 3

The Legislature codified Ross’s grant of absolute

immunity to high-ranking officials in MCL 691.1407(5).
In MCL 691.1407(2), the Legislature granted immunity
to individual governmental actors “from tort liability”
25
MCL 691.1407.
470 482 MICH 459 [Dec
OPINION OF THE COURT

for injuries or damage caused by the employee. The

Legislature eliminated the Ross distinction between
discretionary and ministerial acts and granted qualified
immunity for both types of actions. Subsection 2 gives
immunity for acts taken “while in the course of employ-
ment or service” if (a) the employee “is acting or
reasonably believes he or she is acting within the scope
of his or her authority,” (b) the agency that the em-
ployee serves “is engaged in the exercise or discharge of
a governmental function,” and (c) the employee’s “con-
duct does not amount to gross negligence that is the
proximate cause of the injury or damage.” Accordingly,
the Legislature replaced the Ross “good faith” element
with a gross-negligence standard.
Subsection 2 purports to apply simply to “tort liabil-
ity,” and, ironically, even though that subsection con-
cerns only gross negligence, defendant argued for the
first time at oral argument before this Court that the
broad tort reference includes intentional torts. How-
ever, when read in context with subsection 3, it is clear
that subsection 2 encompasses only negligent tort liabil-
ity. In subsection 3, the Legislature unambiguously
expressed its intent to maintain “the law of intentional
torts as it existed before July 7, 1986.”26
Every provision of § 7 specifically and expressly pre-
scribes the immunity from tort liability extended to
governmental agencies and actors. In contrast, but not
inconsistent with these provisions, subsection 3 indi-
cates the Legislature’s intent to confer immunity on
governmental employees for intentional torts to the
same extent allowed under the common law as it existed
before July 7, 1986. Thus, the Legislature thereby
removed immunity for intentional tort liability from
the statutory grant of immunity in subsection 2.
26
MCL 691.1407(3) (emphasis added).
2008] ODOM V WAYNE CO 471
OPINION OF THE COURT

As will be discussed in more detail later, subsection 2

does alter the law of governmental immunity as it
existed before the amendment of § 7 for negligent torts
committed by lower-level government employees. Sub-
section 3 represents a deviation from the legislatively
created governmental immunity scheme, but the devia-
tion is limited to intentional torts. “[I]t is a settled rule
of statutory construction that where a statute contains
a specific statutory provision and a related, but more
general, provision, the specific one controls.”27 Because
subsection 3 more specifically addresses “intentional
torts” and subsection 2 more broadly addresses “tort
liability,” subsection 3 must control in this case.
We reject defendant’s interpretation of subsection 3 as
merely reiterating that a governmental employee who
does not satisfy the requirements of subsection 2 remains
liable for an intentional tort. This interpretation is con-
trary to the rules of statutory construction in that it would
render subsection 3 surplusage.28 A “reiteration,” by
definition, creates surplus language.29 Moreover, defen-
dant’s proposed interpretation of the statute necessar-
ily assumes that the reference in subsection 2 to “tort
liability” encompasses both intentional and negligent
torts. If the Legislature had intended to reiterate that a
governmental employee remains liable in tort when he
fails to meet the standards of subsection 2, the language
of subsection 3 would not have been specifically limited
to “intentional torts.”
27
In re Haley, 476 Mich 180, 198; 720 NW2d 246 (2006), citing
Gebhardt v O’Rourke, 444 Mich 535, 542-453; 510 NW2d 900 (1994).
28
Herald Co, Inc v Eastern Michigan Univ Bd of Regents, 475 Mich
463, 470; 719 NW2d 19 (2006) (“[W]e interpret every word, phrase, and
clause in a statute to avoid rendering any portion of the statute nugatory
or surplusage.”).
29
Random House Webster’s College Dictionary (1997) defines “reiter-
ate” as “to say or do again or repeatedly; repeat, often excessively,” and
“surplusage” as “an excess of words, [especially] in pleading a case.”
472 482 MICH 459 [Dec
OPINION OF THE COURT

Furthermore, defendant’s interpretation cannot be

sustained. As noted, subsection 2 alters the common-
law test for governmental immunity. If subsection 2 had
altered the common law in relation to all torts, the
express terms of subsection 3 preserving “the law of
intentional torts as it existed before July 7, 1986,”
would be rendered a complete nullity. Thus, although
subsection 2 abolished the Ross distinction between
discretionary and ministerial acts and replaced the Ross
“good faith” element with a gross-negligence standard,
those alterations are limited to negligent torts because
“[s]ubsection (2) does not alter the law of intentional
torts . . . .”30

C. TEST FOR IMMUNITY OUTLINED IN ROSS

The seminal pre-July 7, 1986, case defining the

parameters of governmental immunity for individuals
from tort liability is Ross v Consumers Power Co (On
Rehearing). Over the years, substantial confusion has
arisen regarding the proper interpretation of the Ross
test for individual governmental immunity as it is
applied to intentional torts. A number of cases have
either misinterpreted or failed to mention Ross in
holding that there is no intentional-tort exception to
governmental immunity.31 We correct today this tangle
of cases arising after the enactment of the current
GTLA by following the legislative direction to apply the
30
MCL 691.1407(3).
31
See, e.g., Marrocco v Randlett, 431 Mich 700, 707-708; 433 NW2d 68
(1988); Smith v Dep’t of Pub Health, 428 Mich 540, 544; 410 NW2d 749
(1987). These cases are distinguishable from the current case because
they involved high-level executive officials who were extended absolute
immunity for conduct undertaken within their executive authority and
governmental agencies, respectively, rather than individual governmen-
tal employees.
2008] ODOM V WAYNE CO 473
OPINION OF THE COURT

common law “as it existed before July 7, 1986.”32 Ross

comprehensively stated the common-law test in Michi-
gan for individual governmental-employee immunity
before the statutory date. Contrary to defendant’s po-
sition, Ross clearly provides governmental employees
qualified immunity from intentional-tort liability at
common law. We take this opportunity to reaffirm and
restate the Ross test.33
Under Ross, to be immune from liability for inten-
tional torts, the governmental employee must first
establish that the acts were taken “during the course
of . . . employment and” that the employee was “acting,
or reasonably believe[d] [he was] acting, within the
scope of [his] authority[.]”34 This requirement ensures
that a governmental employee will not be afforded
immunity when committing ultra vires acts, as these
are outside the scope of the employee’s authority.35
However, it also protects a governmental employee who
reasonably believes that he was authorized to take
certain actions, but later learns that he was mistaken.36
The governmental employee must also establish that
he was acting in “good faith.” Ross did not elaborate on
this element, relying instead on Prosser on Torts and
the cases cited therein.37 Prosser noted that the “con-
siderable majority of the state courts take the position
that there is no immunity where the inferior officer
32
MCL 691.1407(3).
33
Cases holding that governmental employees are protected by more or
less than the qualified immunity for intentional-tort liability provided in
Ross are overruled to the extent that such cases are inconsistent with
Ross.
34
Ross, 420 Mich at 633.
35
Id. at 631.
36
Id. at 633 n 41.
37
Id. at 632.
474 482 MICH 459 [Dec
OPINION OF THE COURT

does not act honestly and in good faith, but maliciously, or

for an improper purpose.”38 “[O]fficial immunity should
not become a cloak for malicious, corrupt, and other-
wise outrageous conduct on the part of those guilty of
intentional abuse of power . . . .”39 The cases cited by
Prosser indicate that there is no immunity when the
governmental employee acts maliciously or with a wan-
ton or reckless disregard of the rights of another.40
This standard is also consistent with prior Michigan
caselaw. In Armstrong v Ross Twp,41 the Court of
Appeals described good faith simply as acting without
malice. In Blackman v Cooper,42 the Court of Appeals
held that a police officer is entitled to immunity when
he is “acting in good faith with probable cause . . . even
though the arrest is subsequently found to be baseless.”
In Dickey v Fluhart,43 the Court of Appeals held that an
“action may lie only if the officer has utilized wanton or
malicious conduct or demonstrated a reckless indiffer-
ence to the common dictates of humanity.”
This Court has described a lack of good faith as “mali-
cious intent, capricious action or corrupt conduct”44 or
“willful and corrupt misconduct . . . .”45 In Firestone v
Rice,46 in which the plaintiff brought an action for false
imprisonment and assault and battery against a police
officer for handcuffing him, the Court held:
38
Prosser, Torts (4th ed), § 132, p 989.
39
Id.
40
See id. at 987-990.
41
82 Mich App 77, 85-86; 266 NW2d 674 (1978).
42
89 Mich App 639, 643; 280 NW2d 260 (1979).
43
146 Mich App 268, 276; 380 NW2d 76 (1985).
44
Veldman v Grand Rapids, 275 Mich 100, 113; 265 NW 790 (1936).
45
Amperse v Winslow, 75 Mich 234, 245; 42 NW 823 (1889).
46
71 Mich 377, 384; 38 NW 885 (1888) (emphasis added).
2008] ODOM V WAYNE CO 475
OPINION OF THE COURT

There must be some discretion reposed in a sheriff or

other officer, making an arrest for felony, as to the means
taken to apprehend the supposed offender, and to keep him
safe and secure after such apprehension. And this discre-
tion cannot be passed upon by a court or jury unless it has
been abused through malice or wantonness or a reckless
indifference to the common dictates of humanity.

In addition, this Court has held that “willful and

wanton misconduct is made out only if the conduct
alleged shows an intent to harm or, if not that, such
indifference to whether harm will result as to be the
equivalent of a willingness that it does.”47 Similarly, our
standard civil jury instructions define “willful miscon-
duct” as “conduct or a failure to act that was intended
to harm the plaintiff”48 and “wanton misconduct” as
“conduct or a failure to act that shows such indifference
to whether harm will result as to be equal to a willing-
ness that harm will result.”49 These instructions are
consistent with the negation of the common-law defini-
tion of “good faith” and can be a useful guide for a trial
court considering a defendant’s motion for summary
disposition based on individual governmental immu-
nity. Thus, the proponent of individual immunity must
establish that he acted without malice.
The final Ross element to be considered when deter-
mining whether an individual is entitled to governmen-
tal immunity is whether the challenged “act” was
ministerial or discretionary in nature. As explained in
Ross, “ ‘A ministerial officer has a line of conduct
marked out for him, and has nothing to do but to follow
it; and he must be held liable for any failure to do so
47
Burnett v City of Adrian, 414 Mich 448, 455; 326 NW2d 810 (1982).
48
M Civ JI 14.12.
49
M Civ JI 14.11.
476 482 MICH 459 [Dec
OPINION OF THE COURT

which results in the injury of another.’ ”50 Ministerial

acts “constitute merely an obedience to orders or the
performance of a duty in which the individual has little
or no choice.”51 The execution of an act once a decision
has been made is also ministerial in nature.52 “Discre-
tion,” on the other hand, “ ‘implies the right to be
wrong.’ ”53 Discretionary acts “require personal delib-
eration, decision and judgment.”54 Although the deci-
sion need not be extraordinary, governmental immunity
is not afforded for “every trivial decision” an actor may
make.55 Granting immunity to an employee engaged in
discretionary acts allows the employee to resolve prob-
lems without constant fear of legal repercussions.56
Police officers perform many discretionary acts each
day. An officer must use his judgment to determine
whether there is reasonable suspicion to investigate or
probable cause to arrest and to determine the amount of
force necessary to effectuate an arrest. A police officer
similarly conducts many ministerial acts each day, such as
completing activity logs and police reports or following the
procedures for booking an arrested person.

D. BURDEN OF PROOF

The parties dispute who bears the burden of proof

50
Ross, 420 Mich at 626, quoting Wall v Trumbull, 16 Mich 228, 235
(1867).
51
Ross, 420 Mich at 634.
52
Id. at 634-635.
53
Id. at 628, quoting Williams, 364 Mich at 261 (opinion by EDWARDS,
J.).
54
Ross, 420 Mich at 634, citing Prosser, § 132, p 988.
55
Ross, 420 Mich at 634.
56
We again note that the elimination in MCL 691.1407(2) of the distinc-
tion between ministerial and discretionary acts does not apply to individual
immunity from intentional tort liability, which is provided in subsection 3 of
the statute.
2008] ODOM V WAYNE CO 477
OPINION OF THE COURT

with regard to governmental immunity: whether the

plaintiff must plead in avoidance of immunity in the
complaint or whether the defendant must raise immu-
nity as an affirmative defense.
The doctrine of “sovereign immunity” dates back to
the English common law. While England was ruled by
an absolute monarch, English law settled that the king
was the law and, therefore, could not violate the law.
Moreover, it was deemed “a contradiction of [the king’s]
sovereignty to allow him to be sued as of right in his
own courts.”57 Governmental immunity for individuals
began as an extension of the sovereign immunity given
the king. It was employed to protect from liability “the
servants who were carrying out [the king’s] com-
mands.”58 However, when England began to function
under a parliamentary government, English common-
law immunity doctrines fundamentally changed. Al-
though the king continued to be protected by sovereign
immunity, the king’s agents were held liable for their
wrongs, and the wrongs of the king that were imputed
to them.59
American courts adopted the concept of sovereign, or
“governmental,” immunity to protect from liability the
sovereign state governments (and state agencies as
integral parts of the state). A central tenet of this
sovereign or governmental immunity is that the state
may be held liable in a court of law only when the state
has expressly permitted a suit against it.60 Under the
57
Prosser, § 131, pp 970; see also 4 Restatement Torts, 2d, ch 45A, p
394.
58
4 Restatement, §895D, comment a, p 411.
59
See Prosser, § 131, p 971; 4 Restatement, § 895D, comment a, pp
411-412.
60
Prosser, § 131, pp 971, 975-976; 4 Restatement, § 895B and comment
a, pp 399-401.
478 482 MICH 459 [Dec
OPINION OF THE COURT

GTLA, the state maintains its immunity when “en-

gaged in the exercise or discharge of a governmental
function”61 unless the plaintiff establishes the existence
of a statutorily created exception to that immunity.62
Sovereign immunity as it applied to the king in
English common law and statutorily created govern-
mental immunity that is currently applicable to the
state as a sovereign government are “characteristic[s]
of government.”63 As such, this immunity protects the
state not only from liability, but also from the great
public expense of having to contest a trial.64 A plaintiff
61
MCL 691.1407(1).
62
The statutory exceptions to the governmental immunity provided to
the state and its agencies are the highway exception, MCL 691.1402; the
motor-vehicle exception, MCL 691.1405; the public-building exception,
MCL 691.1406; the proprietary-function exception, MCL 691.1413; the
governmental-hospital exception, MCL 691.1407(4); and the sewage-
disposal-system-event exception, MCL 691.1417(2) and (3). Wesche v
Mecosta Co Rd Comm, 480 Mich 75, 84 n 10; 746 NW2d 847 (2008).
63
Mack, 467 Mich at 198, citing (among other cases) Canon v Thu-
mudo, 430 Mich 326, 344 n 10; 422 NW2d 688 (1988), Hyde v Univ of
Michigan Bd of Regents, 426 Mich 223, 261 n 35; 393 NW2d 847 (1986),
Ross, 420 Mich at 621 n 34, and McCann v Michigan, 398 Mich 65; 247
NW2d 521 (1976). The only case holding otherwise was McCummings v
Hurley Med Ctr, 433 Mich 404; 446 NW2d 114 (1989). McCummings was
an aberration, which this Court overruled in Mack.
64
Mack, 467 Mich at 203 n 18; Walsh v Taylor, 263 Mich App 618, 624;
689 NW2d 506 (2004). We note that the expense to the state government
and to the public can be just as great in a suit filed against a governmen-
tal employee. MCL 691.1408(1) provides that, in a civil action against a
governmental employee, the government “may pay for, engage, or furnish
the services of an attorney,” “may compromise, settle, and pay the claim”
before trial, and “may indemnify the officer, employee, or volunteer or
pay, settle, or compromise the judgment” following a trial. In light of this
statute, it seems inconsistent to characterize sovereign or governmental
immunity as a characteristic of government that the plaintiff must avoid
in his pleading as an element of the claim and individual governmental
immunity as an affirmative defense. However, the Legislature indicated
that “[t]his section does not impose liability on a governmental agency,”
MCL 691.1408(3), thereby expressing its intent not to transform the
2008] ODOM V WAYNE CO 479
OPINION OF THE COURT

filing suit against a governmental agency must initially

plead his claims in avoidance of governmental immu-
nity. Placing this burden on the plaintiff relieves the
government of the expense of discovery and trial in
many cases.
Over time, governmental immunity for individuals
evolved into an affirmative defense under the common
law and thus was differentiated from the immunity
given to the sovereign.65 In the GTLA, the Legislature
has not abrogated the common law by shifting the
burden of proof with regard to governmental immunity
for individuals. Accordingly, the burden continues to
fall on the governmental employee to raise and prove
his entitlement to immunity as an affirmative defense.66

E. SUMMARY OF THE TEST FOR INDIVIDUAL

GOVERNMENTAL IMMUNITY

To summarize and simplify the application of our

decision, we provide these steps to follow when a defen-
dant raises the affirmative defense of individual govern-
mental immunity. The court must do the following:
(1) Determine whether the individual is a judge, a
legislator, or the highest-ranking appointed executive
official at any level of government who is entitled to
absolute immunity under MCL 691.1407(5).
(2) If the individual is a lower-ranking governmental
employee or official, determine whether the plaintiff
pleaded an intentional or a negligent tort.
(3) If the plaintiff pleaded a negligent tort, proceed
under MCL 691.1407(2) and determine if the individual
state’s debt on behalf of an employee into something that can be
protected by its sovereign or governmental immunity.
65
Mack, 467 Mich at 198 n 15, quoting Canon, 430 Mich at 344 n 10.
66
Mack, 467 Mich at 198 n 15; see also MCR 2.111(F)(3)(a).
480 482 MICH 459 [Dec
OPINION OF THE COURT

caused an injury or damage while acting in the course of

employment or service or on behalf of his governmental
employer and whether:
(a) the individual was acting or reasonably believed
that he was acting within the scope of his authority,
(b) the governmental agency was engaged in the
exercise or discharge of a governmental function, and
(c) the individual’s conduct amounted to gross negli-
gence that was the proximate cause of the injury or
damage.
(4) If the plaintiff pleaded an intentional tort, deter-
mine whether the defendant established that he is
entitled to individual governmental immunity under
the Ross test by showing the following:
(a) The acts were undertaken during the course of
employment and the employee was acting, or reasonably
believed that he was acting, within the scope of his
authority,
(b) the acts were undertaken in good faith, or were
not undertaken with malice, and
(c) the acts were discretionary, as opposed to ministe-
rial.

IV. APPLICATION OF THE ROSS TEST TO THIS CURRENT CASE

Following the guidelines set forth in this opinion, we

first note that defendant indisputably is a lower-level
government employee not entitled to the absolute im-
munity provided by MCL 691.1407(5).
It is equally clear that plaintiff pleaded intentional,
rather than negligent, torts. Plaintiff asserted claims of
false imprisonment and malicious prosecution, both of
which contain intent as an element.67 Contrary to the
67
See Lewis v Farmer Jack Div, Inc, 415 Mich 212; 327 NW2d 893
(1982).
2008] ODOM V WAYNE CO 481
OPINION OF THE COURT

trial court’s opinion, a plaintiff need not plead a forceful

or physical act, such as use of excessive force, but must
plead only an intentional act.
As plaintiff pleaded the occurrence of intentional
torts, the trial court was required to determine whether
defendant was entitled to governmental immunity as
provided by the common law before July 7, 1986.
Defendant timely raised governmental immunity as an
affirmative defense in her first responsive pleading, as
well as raising it in her motion for summary disposition.
To be entitled to governmental immunity, defendant
must establish that she was acting in the course of her
employment and at least reasonably believed that she
was acting within the scope of her authority, that her
actions were discretionary in nature, and that she acted
in good faith.
Because it used the wrong legal standard, the trial
court did not address these questions, finding only that
there remained a question of fact whether defendant
lacked probable cause to detain or arrest plaintiff. The
mere existence of probable cause, however, is not the
proper inquiry. A police officer would be entitled to
immunity under Ross if he acted in good faith and
honestly believed that he had probable cause to arrest,
even if he later learned that he was mistaken.68 Yet the
existence of probable cause is relevant to the analysis; a
claim of false arrest or false imprisonment cannot be
sustained if the arrest was legal.69
The Court of Appeals held that there remained a
question of fact whether defendant’s conduct was jus-
tified and “objectively reasonable.” This objective
analysis is also not the proper Ross inquiry. The good-
68
See Prosser, § 132, p 989 nn 95-96, and the cases cited therein; see
also Blackman, 89 Mich App at 643.
69
Lewis, 415 Mich at 218 n 2.
482 482 MICH 459 [Dec
OPINION OF THE COURT

faith element of the Ross test is subjective in nature. It

protects a defendant’s honest belief and good-faith
conduct with the cloak of immunity while exposing to
liability a defendant who acts with malicious intent.70
On remand, the trial court must reconsider defen-
dant’s motion for summary disposition in light of the
Ross test and determine if defendant adequately sup-
ported her claim of governmental immunity.

V. CONCLUSION

The trial court erroneously determined that plain-

tiff’s claims sounded in gross negligence and, therefore,
analyzed defendant’s motion for summary disposition
based on governmental immunity under MCL
691.1407(2). Plaintiff pleaded claims of intentional
torts, and defendant was required to establish that she
was entitled to governmental immunity pursuant to
Ross, as required by MCL 691.1407(3). The trial court’s
analysis was erroneous because it focused solely on the
potential lack of probable cause to arrest and detain
plaintiff, contrary to the requirements of Ross. The
Court of Appeals recognized that plaintiff’s claims
sounded in intentional tort, but analyzed defendant’s
right to immunity under subsection 2, which applies
only to negligent torts. On remand, the trial court must
determine whether defendant had a good-faith belief
that she possessed probable cause to detain plaintiff
before ruling on defendant’s motion for summary dis-
position based on governmental immunity.
Because of the errors committed below, we vacate the
trial court’s order with respect to defendant, vacate the
judgment of the Court of Appeals and remand this case
70
See Prosser, § 132, p 989.
2008] ODOM V WAYNE CO 483
OPINION OF THE COURT

to the trial court for further proceedings consistent

with this opinion. We do not retain jurisdiction.

TAYLOR, C.J., and WEAVER, CORRIGAN, and MARKMAN,

JJ., concurred with YOUNG, J.

CAVANAGH and KELLY, JJ. We concur in the result only.

484 482 MICH 484 [Dec

TOMECEK v BAVAS

Docket No. 134665. Argued October 2, 2008 (Calendar No. 6). Decided
December 30, 2008.
Frank J. Tomecek, Jr., and Janis H. Tomecek brought an action in
the Berrien County Trial Court, Civil Division, against Andrew L.
Bavas and others, seeking declaratory and other relief with regard
to an easement that benefited the plaintiffs’ landlocked lot.
Because of a restrictive agreement, the plaintiffs could not build a
home on the lot unless they obtained access to a sewer line. The
easement in question, labeled a “drive easement” on the plat, gave
the plaintiffs ingress to and egress from their lot, and they sought
to use the easement for public utilities. The court, Paul L. Maloney,
J., granted the plaintiffs’ motion for summary disposition with
regard to the need for declaratory relief concerning the scope of
the easement, but concluded that the drive easement granted only
a right of passage over the land. The court granted the defendants’
motion for summary disposition on the issue of an easement by
necessity for public utilities. The court, however, also concluded
that the plaintiffs had met their burden under MCL 560.221 and
560.226(1) of the Land Division Act (LDA), MCL 560.101 et seq., to
support a revision of the plat to include a utility easement, granted
summary disposition for the plaintiffs on that issue, and entered
an order revising the plat in that manner. Several defendants
appealed (hereafter referred to as “the defendants”), and the
plaintiffs cross-appealed. The Court of Appeals, HOEKSTRA and
OWENS, JJ. (ZAHRA, P.J., dissenting), affirmed, holding that the LDA
gave trial courts the power not only to correct errors, but also to
alter a plat to affect the underlying substantive property interests.
The Court further held that, had the trial court not revised the
plat to allow a utility easement, the plaintiffs would have been
entitled to a utility easement by necessity. 276 Mich App 252
(2007). The Supreme Court granted leave to appeal. 480 Mich 1195
(2008).
In an opinion by Justice KELLY, joined by Chief Justice TAYLOR,
an opinion by Justice CAVANAGH, joined by Justice WEAVER, and an
opinion by Justice WEAVER, the Supreme Court held:
2008] TOMECEK V BAVAS 485

It was the intent of the original grantors to allow utility access

to the plaintiffs’ property through the central drive easement, and
the restrictive covenant does not bar the easement or the erection
of a building on the lot at issue now that municipal sewer service
has become available.
In an opinion by Justice KELLY, joined by Chief Justice TAYLOR,
and an opinion by Justice YOUNG, joined by Justices CORRIGAN and
MARKMAN, the Supreme Court held:
The LDA does not give trial courts the authority to alter
property rights, and it is unnecessary to reach the question
whether the doctrine of easement by necessity should be expanded
to include utilities access.
Affirmed in part, reversed in part, and vacated in part.
Justice KELLY, joined by Chief Justice TAYLOR, stated that, because
there is a strong inference that the words “drive easement” were
intended to have the same meaning on the central easement and the
south easement of the plat, it may be inferred that the original
grantors intended the two easements to have the same scope, which
includes access both for utilities and for ingress and egress. To allow
the defendants to use their drive easement for utilities while prevent-
ing the plaintiffs from doing the same would be a preposterous result.
Further, although the LDA allows a court to order a recorded plat or
any part of it to be vacated, corrected, or revised, a plat is only a map
that describes the physical property interests on a particular area of
land; it is not, by itself, a determination of substantive property
interests. Accordingly, the LDA was not intended to enable a court to
establish an otherwise nonexistent property right; it was intended
only to allow a court to alter a plat to reflect property rights already
in existence. Finally, it is unnecessary to reach the question whether
the doctrine of easement by necessity should be expanded to include
utilities access.
Justice CAVANAGH, joined by Justice WEAVER, stated that the
plaintiffs’ request for relief should be granted on the ground that
the easement language was latently ambiguous and that the
circumstances surrounding its writing showed that the grantors
intended the plaintiffs’ property to access utilities through the
central drive easement. Although the issue regarding whether the
LDA enables a court to alter property rights should not have been
reached, the LDA does allow courts to alter property rights in at
least some circumstances.
Justice WEAVER partially agreed and partially disagreed with
the lead opinion’s conclusions for the reasons stated in Justice
CAVANAGH’s opinion, which she joined.
486 482 MICH 484 [Dec
OPINION BY KELLY, J.
Justice YOUNG, joined by Justices CORRIGAN and MARKMAN, stated
that the LDA does not give trial courts the authority to alter
substantive property rights and that there was insufficient evi-
dence to support a conclusion that the grantors intended the
plaintiffs’ easement to encompass utilities access. Moreover, it is
unnecessary to reach the question whether the doctrine of ease-
ment by necessity should be expanded to include utilities access.

PROPERTY — LAND DIVISION ACT — PLATS — REVISION OF PLATS.

The provisions of the Land Division Act that give circuit courts the
authority to order the alteration of a plat cannot be used to create
substantive property rights (MCL 560.221; MCL 560.226[1]).

Warner Norcross & Judd LLP (by Devin S. Schin-

dler, John J. Bursch, and Matthew T. Nelson), for the
plaintiffs.

Dickinson Wright PLLC (by Jeffery V. Stuckey, Kevin

J. O’Dowd, and Phillip J. DeRosier) and DeFrancesco
Dienes P.C. (by Scott A. Dienes) for the defendants.
Amici Curiae:

Kelley Cawthorne, PLLC (by Frank J. Kelley and

Steven D. Weyhing), for the Walloon Lake Association.

Law, Weathers & Richardson, P.C. (by Clifford H.

Bloom) for the Michigan Lake & Stream Associations, Inc.

KELLY, J. This case involves real property to which

plaintiffs seek an easement for the purpose of connect-
ing to a city sewer across the lots of their neighbors. The
issues are (1) whether the Land Division Act (LDA)1 can
be used to create substantive property rights, such as a
utility easement, (2) whether an easement by necessity
for utilities should be allowed in this case, and (3)
whether the restrictive covenant that runs with the
land in question bars the easement.
1
MCL 560.101 et seq.
2008] TOMECEK V BAVAS 487
OPINION BY KELLY, J.

The Court of Appeals held that the LDA provides for

substantive changes to property rights and gives the
trial court the authority to revise the plat to allow a
utility easement. It also concluded that an easement by
necessity for utilities could appropriately be created in
this case and that the restrictive covenant does not bar
the easement.
We affirm the result of the Court of Appeals opinion
and conclude that the original grantors intended to allow
utility access to the Tomeceks’ property through the
central drive easement. We agree that the restrictive
covenant does not bar the easement. However, we reverse
the Court of Appeals holding that the LDA can alter
substantive property rights. Finally, it was unnecessary
for the Court of Appeals to address whether an easement
by necessity should be recognized in Michigan and applied
in this case. Therefore, we affirm the Court of Appeals
opinion in part, reverse it in part, and vacate it in part.

FACTS

Plaintiffs Frank and Janis Tomecek own property in

the O. T. Henkle subdivision along Lake Michigan in
Berrien County. They wish to build a house on their
property (Lot 2).2 Defendants claim that a restrictive
covenant that runs with the plat prevents plaintiffs
from erecting a building on Lot 2. The covenant states
that a house cannot be built on Lot 2 “unless and until
a municipal sanitary sewer line is made available to the
premises.”
Because Lot 2 is landlocked, plaintiffs have an ease-
ment3 (the central easement) over Lots 1 and 3 through
2
Plaintiffs’ property is shown as “2” on the map at the end of this
opinion.
3
The easement is shown on the lower center of the diagram appended
to this opinion and runs from Lake Shore Road to Lot 2.
488 482 MICH 484 [Dec
OPINION BY KELLY, J.

which they access their property from Lake Shore Road.

Plaintiffs claim that they are entitled to use the central
easement to gain access to the municipal sewer line.
A familiarity with the history of the O. T. Henkle
subdivision is helpful in understanding this case. In the
early 1920s, O. T. Henkle acquired approximately five
acres of land on Lake Michigan in Chikaming Town-
ship, Berrien County. The property passed from O. T.
Henkle to C. W. Henkle, Gladys Farclough, and Jane H.
Henkle (collectively referred to as “the original grant-
ors”).4 In 1967, the original grantors conveyed what is
now Lot 1 to one of the defendants, reserving an
easement for the benefit of Lot 2. The easement runs
from Lake Shore Road along the southern boundary of
Lot 1.5
Over the next few years, the original grantors sold
Lots 3, 4, and 5, all subject to an easement running
along the southern portion of the property (“the south
drive easement”).6 Lots 3 and 4 were also subject to the
central drive easement.7 In 1975, the plat was recorded
in the county records. At the time of platting, Lots 3, 4,
and 5 used the south drive easement for utilities access8
and for right-of-way access. Also, in 1975, the original
grantors recorded a restrictive covenant prohibiting the
construction of a building on Lot 2 until a municipal
sanitary sewer service was made available to the pre-
4
Jane Henkle is the mother of plaintiff Janis Tomecek.
5
The easement is located on the central easement on the map, where
the word “Drive” is printed.
6
The easement is labeled “Drive Easement” and shown on the left side
of the map.
7
The left half of the central easement, where the word “Easement”
appears on the map.
8
The south easement provided Lots 3, 4, and 5 with telephone and
electrical access.
2008] TOMECEK V BAVAS 489
OPINION BY KELLY, J.

mises.9 Thus, when the property was platted in 1975,

both the central and south easements were identically
identified as “drive easement” on the plat, and the
south easement already had utilities on it.
In 1976, the original grantors conveyed Lot 2 to
plaintiffs. When plaintiffs bought Lot 2, the original
grantors provided them with a drawing showing a good
spot to build a home on the lot.10

PROCEDURAL HISTORY

In 2001, plaintiffs requested a variance from the

Chikaming Township Zoning Board of Appeals to con-
struct a home on their lot. When the board granted the
variance, defendants appealed, claiming that the re-
strictive covenant prevented plaintiffs from building a
home because they did not have sewer access. The trial
court granted summary disposition to plaintiffs, ruling
that the original grantors intended to allow plaintiffs to
build a home on Lot 2. The trial court observed that
defendants had already run utility lines on the south
easement, and plaintiffs deserved to do the same with
their central easement.
A divided Court of Appeals panel affirmed the trial
court’s decision in a published opinion.11 It held that the
LDA12 empowered the trial court to revise the plat to
9
Plaintiffs and defendants disagree about the meaning of “premises”
in the restrictive covenant. Plaintiffs contend “premises” refers to the
subdivision as a whole, whereas defendants claim it refers exclusively to
Lot 2.
10
In 1969, before plaintiffs acquired the property, the original grantors
gave them another drawing showing a desirable location for a home on
Lot 2.
11
Tomecek v Bavas, 276 Mich App 252; 740 NW2d 323 (2007).
12
The LDA allows a trial court to vacate, correct, or revise a plat. MCL
560.226(1).
490 482 MICH 484 [Dec
OPINION BY KELLY, J.

include utilities in the central easement. The LDA, it

concluded, permits a trial court to do more than merely
correct errors; it may alter a plat to affect underlying
substantive property rights. The Court of Appeals held,
in addition, that plaintiffs were entitled to an easement
by necessity for utilities.

STANDARD OF REVIEW

We review de novo a trial court’s decision on a motion

for summary disposition.13 The extent of a party’s rights
under an easement is a question of fact, and a trial
court’s determination of the facts is reviewed for clear
error.14 The proper interpretation and application of a
statute presents a question of law that we consider de
novo.15

THE CENTRAL EASEMENT INCLUDED UTILITY ACCESS

AT THE TIME OF PLATTING

We must determine if the central easement running

from Lake Shore Road to Lot 2 includes utility access, or
if its use is strictly limited to ingress and egress. Under
well-established Michigan law, “[t]he use of an easement
must be confined strictly to the purposes for which it was
granted or reserved.”16 Exacting “magic words” are not
required on a plat to create an easement.17 When
interpreting deeds and plats, Michigan courts seek to
13
Blackhawk Dev Corp v Village of Dexter, 473 Mich 33, 40; 700 NW2d
364 (2005).
14
Id.
15
Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32;
658 NW2d 139 (2003).
16
Delaney v Pond, 350 Mich 685, 687; 86 NW2d 816 (1957).
17
See Chapdelaine v Sochocki, 247 Mich App 167, 170; 635 NW2d 339
(2001).
2008] TOMECEK V BAVAS 491
OPINION BY KELLY, J.

effectuate the intent of those who created them.18

Plaintiffs assert that, when the original grantors
platted the subdivision, they assumed that both the
south easement and the central easement included
access for utilities. Defendants assert the contrary and
add that Lot 2 was always intended to remain vacant.
It is undisputed that the central and south easements
are identically labeled “drive easement” on the plat. At
the time of platting, the central easement was used only
for ingress and egress to Lot 2; there were no utilities on
the easement. However, the south easement was used
both as a driveway and for telephone and electrical lines
to Lots 3, 4, and 5.
We find a strong inference that the words “drive
easement” on the central easement were intended to
have the same meaning as “drive easement” on the
south easement. We conclude that the original grantors
would have labeled the easements differently had they
intended to allow utilities on the south easement, but
not on the central easement. And we conclude that the
original grantors intended the central and south ease-
ments to have the same scope: both road access for
ingress and egress and utility access.
As early as 1883, Michigan courts recognized that a
party using a right-of-way for a particular purpose
cannot prevent a subsequent party from making the
same use of the property. In Bell v Todd, the plaintiffs
sought to enjoin the defendant from blocking access to
a road that was platted but never constructed.19 Plain-
tiff Bell had previously blocked unbuilt roads in the
same plat. The Court dismissed the case, stating:
18
See Curran v Maple Island Resort Ass’n, 308 Mich 672, 679-681; 14
NW2d 655 (1944).
19
Bell v Todd, 51 Mich 21; 16 NW 304 (1883).
492 482 MICH 484 [Dec
OPINION BY KELLY, J.

[I]t also appears that Railroad street south of South

street is enclosed and occupied by Bell himself, so that he is
doing in his own individual interest in respect to this very
street precisely what he seeks to enjoin defendant from
doing. It would be preposterous to grant the relief prayed
for on his application under such circumstances.[20]

Although two streets, not one, are involved here, we

believe Bell is instructive. Defendants use their “drive
easement” for utilities and seek to prevent plaintiffs
from using their “drive easement” for the same pur-
pose. In the words of Justice COOLEY in Bell, to allow
such a result would be “preposterous.”
It is apparent, also, that the grantors envisioned that
a house would be built on Lot 2 and, by extension, that
the central easement would include utilities. This may
be gleaned from two drawings by C. W. Henkel, one of
the original grantors. The first was made in 1969, six
years before the subdivision was platted. It shows Lot 2
and the adjacent lot to the east, Lot 1. On Lot 2 is a
rectangle with the words “possible house location and
dimensions.” The central easement is shown on the
drawing.
C. W. Henkle made a second drawing in 1978, three
years after the subdivision and easements were platted.
Like his first drawing, it shows a location on Lot 2
where plaintiffs could build a home. The central ease-
ment is visible on the drawing. It is significant that
C. W. Henkle included the central easement in his
drawings of Lot 2 with a house. He knew then that no
house could be erected there until the lot had access to
a sewer line. He knew, also, that the central easement
was the only likely route to provide that access. Taken
together, these drawings provide further evidence of
intent that the central drive easement should include
utilities.
20
Id. at 28.
2008] TOMECEK V BAVAS 493
OPINION BY KELLY, J.

Finally, contrary to the defendants’ claim, the word-

ing of the restrictive covenant shows that the original
grantors always intended that a house could be built on
Lot 2. When attempting to discern the parties’ intent,
we construe together contemporaneous documents re-
lating to the same transaction.21 The restrictive cov-
enant on Lot 2 was executed contemporaneously with
the plat; therefore, it is relevant in discerning the
parties’ intent at the time.
It does not make sense that the original grantors
would have inserted language regarding a sewer in the
restrictive covenant had they intended that no building
ever be placed on Lot 2. If they had really intended to
forever prevent building on Lot 2, they would have
simply covenanted that no building ever be put there.
The reference to a sewer makes sense, however, if the
grantors’ intent was to eventually allow a building on
Lot 2. This becomes readily apparent when the geo-
graphical limitations of the plat are considered. The
plat is approximately five acres in size. Only the eastern
half is suitable for housing because a bluff runs along
the middle of the property, descending to the beach and
Lake Michigan. Therefore, the five lots suitable for
residences adjoin each other on roughly the 2.5 eastern-
most acres of land.
In 1975, when the subdivision was platted and the
restrictive covenant was written, none of the lots had
access to a municipal sewer system. Septic tanks22 were
21
Interstate Constr Co v United States Fidelity & Guaranty Co, 207
Mich 265, 274; 174 NW 173 (1919).
22
A septic tank is a small-scale sewage treatment system common in
rural areas where there is no access to a municipal sewer line. Wastewa-
ter enters the septic tank from a connected residence, and solids settle to
the bottom. The remaining water flows out of the tank and is absorbed
into the soil, which usually filters out the remaining impurities in the
water. However, there must be adequate soil area to handle the waste-
494 482 MICH 484 [Dec
OPINION BY KELLY, J.

the only plausible alternative for waste management on

the lots. However, because of concerns over numerous
septic systems and leach fields23 in the relatively small
area, a septic system was not an option for every lot.
Cognizant of this problem, the original grantors
likely enacted the restrictive covenant to prevent con-
struction of a house on Lot 2 until municipal sewer
service became available to it. Hence, the restrictive
covenant prevented overloading the small area of land
with septic waste. When a municipal sewer system
became available to the plat in the late 1970s, the
condition in the restrictive covenant was satisfied. The
restrictive covenant had served its purpose.
From this we conclude that it was the intent of the
original grantors that a house could be built on Lot 2
when a municipal sewer became available. We conclude
also that the central “drive easement” was intended,
like the south “drive easement,” to provide access to the
sewer and other utilities.

EFFECT OF THE RESTRICTIVE COVENANT

Defendants maintain that the restrictive covenant of

1974 intended to prohibit any building on the property
until the end of time. They argue that the plain lan-
guage of the restrictive covenant reflects this.
water coming from the tank or the surrounding area will be damaged. This
is especially likely when septic tanks are located on property near a body of
water (like the property in this case that borders Lake Michigan), because
the sandy soil can easily become saturated with chemicals. This pollutes
the surrounding area and surface water, causing serious harm to fish, plants,
and other wildlife. See Craig G. Cogger, Septic System Waste Treatment
in Soil <http://cru.cahe.wsu.edu/CEPublications/eb1475/eb1475.html> (ac-
cessed December 12, 2008); see also Septic Systems for Waste Water
Disposal, available at <http://www.agwt.org/info/septicsystems.htm> (ac-
cessed December 12, 2008).
23
A leach field is the area of land where the wastewater from a septic
tank is deposited.
2008] TOMECEK V BAVAS 495
OPINION BY KELLY, J.

The restrictive covenant states, “It is hereby coven-

anted and agreed that no building, structure or dwell-
ing shall be constructed on Lot 2 of said plat unless and
until a municipal sewer line is made available to the
premises.” Defendants claim that the covenant prohib-
its building a home on Lot 2 until the owners of Lots 1,
3, and 4, explicitly grant permission to create an ease-
ment for municipal sewer service.
This interpretation is not reflected in the words of
the covenant. As the trial court pointed out:
A plain reading of this restriction contradicts Defen-
dant’s [sic] argument: if the grantors wanted to forever
preclude any construction on Lot 2, the restriction would
have stated as much in explicit language by ending the
provision after the word “plat” [so that it read “[t]hat it is
hereby covenanted and agreed that no building, structure
or dwelling shall be constructed on Lot 2 of said plat”].
Defendants’ argument in this regard must therefore fail.

The restrictive covenant merely prevented construction

on Lot 2 until sewer service became available to that lot.

THE LDA CANNOT ALTER SUBSTANTIVE PROPERTY RIGHTS

The LDA provides a process for surveying and mark-

ing subdivided property. Property information is com-
piled on a plat that is then recorded with the local
municipality. The LDA allows a circuit court to vacate,
correct, or revise a recorded plat.24 Defendants argue
that the LDA permits a court to alter a plat map only to
properly reflect existing property rights; it cannot affect
the substantive rights of the underlying property own-
ers.
When construing the LDA, we are mindful that our
primary goal is to ascertain and give effect to the
24
MCL 560.221.
496 482 MICH 484 [Dec
OPINION BY KELLY, J.

Legislature’s intent.25 When determining intent, we con-

sider first the language of a statute.26 The LDA allows a
court to “order a recorded plat or any part of it to be
vacated, corrected, or revised . . . .”27 “Plat” is defined
in the act as “a map or chart of a subdivision of land.”28
The LDA defines a plat as a map. A plat is a
description of the physical property interests on a
particular area of land. A map, by itself, is not a
determination of substantive property interests. If one
“revises” a map of the United States to show Michigan
encompassing half of the country, it does not make it so.
The LDA was never intended to enable a court to
establish an otherwise nonexistent property right.
Rather, the act allows a court to alter a plat to reflect
property rights already in existence.
In this case, the LDA did not create new substantive
property rights when the circuit court altered the plat
to reflect that the central easement encompasses utility
access. This right existed with respect to the central
easement since its inception, when the original grantors
recorded the central easement intending it to include
utilities. The trial court merely used the LDA as the tool
to validate property rights that already existed.

CONCLUSION

In 1975, when the O. T. Henkle subdivision was

platted, it was the intent of the grantors that the
central easement could include utilities. This holding is
supported by the fact that, on the plat, the central ease-
25
Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004).
26
Yaldo v North Pointe Ins Co, 457 Mich 341, 346; 578 NW2d 274
(1998).
27
MCL 560.226(1).
28
MCL 560.102(a).
2008] TOMECEK V BAVAS 497
OPINION BY KELLY, J.

ment and the south easement are both labeled the same.
It is undisputed that the south easement was a driveway
and had utilities at the time of platting. The language of
the restrictive covenant that runs with the plat supports
this holding. The covenant prevented a house from being
built on Lot 2 until a municipal sewer system could be
made available to the lot. Hence, once a sewer line became
available, the covenant allowed a house to be built on Lot
2. Therefore, we affirm the Court of Appeals judgment.
However, we reverse its holding concerning the LDA. The
LDA cannot be used to create substantive property rights.
Regarding the Court of Appeals dicta creating an ease-
ment by necessity for utilities, we decline to address
whether such an easement is available in Michigan, it
being unnecessary to resolve the case. The result reached
by the Court of Appeals is affirmed on the basis of the
intent of the grantors.

TAYLOR, C.J., concurred with KELLY, J.

498 482 MICH 484 [Dec
OPINION BY KELLY, J.
2008] TOMECEK V BAVAS 499
OPINION BY CAVANAGH, J.

CAVANAGH, J. (concurring in part and dissenting in

part). I concur with the result of the lead opinion because
I agree that plaintiffs’ request for relief should be granted.
I write separately to clarify my view that the circum-
stances surrounding the easement’s creation show that it
contains a latent ambiguity and that the original grantors
intended to allow utility access to plaintiffs’ property
through the central drive easement. I respectfully dissent,
however, from the lead opinion’s holding that the Land
Division Act (LDA) does not grant courts the power to
alter substantive property rights.

I. INTENT OF THE ORIGINAL GRANTORS

I concur with the lead opinion’s conclusion that the

original grantors intended plaintiffs’ property to have
access to utilities through the central drive easement,
and I would grant plaintiffs’ request for relief.1 I also
concur with the lead opinion’s conclusion that the
restrictive covenant does not bar plaintiffs from build-
ing on their property.
As the lead opinion noted, the cardinal rule of inter-
preting deeds and plats is to effectuate the intent of the
parties. Ante at 490-491. To effectuate this rule, in light
of the principle of freedom of contract, this Court has
generally observed that “[i]f the language of a contract
is clear and unambiguous, it is to be construed accord-
ing to its plain sense and meaning . . . .” City of Grosse
Pointe Park v Michigan Muni Liability & Prop Pool, 473
Mich 188, 197-198; 702 NW2d 106 (2005) (citation and
quotation marks omitted). Where a contract is ambigu-
1
This holding applies to the southern half of the central drive ease-
ment. The northern half of the central drive easement was reserved
before platting, and with language distinct from the language used in the
south drive easement.
500 482 MICH 484 [Dec
OPINION BY CAVANAGH, J.

ous, however, this Court may use extrinsic evidence to

determine the intent of the parties. Id. at 198.
Extrinsic evidence may sometimes also be used to
detect an ambiguity in a contract, depending on whether
the ambiguity is latent or patent. Id. A patent ambiguity
“ ‘clearly appears on the face of a document, arising from
the language itself.’ ” Id., quoting Black’s Law Dictionary
(7th ed). Extrinsic evidence is generally not necessary to
detect a patent ambiguity. In contrast, a latent ambiguity
“ ‘does not readily appear in the language of a document,
but instead arises from a collateral matter when the
document’s terms are applied or executed.’ ” Id. Where
there is a latent ambiguity, extrinsic evidence may be used
not only to resolve the ambiguity, but also to prove the
existence of the latent ambiguity. Grosse Pointe Park, 473
Mich at 198. See also McCarty v Mercury Metalcraft Co,
372 Mich 567, 575; 127 NW2d 340 (1964); Ives v Kimball,
1 Mich 308, 313 (1849). In Ives, after explaining that a
latent ambiguity may be shown by parol evidence, this
Court highlighted the importance of this doctrine by
stating that
[t]here is no more useful, just and practical rule of law,
than that which admits evidence of surrounding circum-
stances and collateral facts, within certain well defined
limits, for the purpose of enabling courts to ascertain and
carry into effect the intention of contracting parties. The
cases in which this rule has been applied are almost
innumerable. [Ives, 1 Mich at 313.]

This Court has applied the latent ambiguity doctrine

to give easement language a meaning that becomes
apparent only in light of the surrounding circum-
stances. See Keller v Paulos Land Co, 381 Mich 355; 161
NW2d 569 (1968); McConnell v Rathbun, 46 Mich 303;
9 NW 426 (1881). Keller is particularly instructive in
this case. In Keller, the parties disagreed over the
2008] TOMECEK V BAVAS 501
OPINION BY CAVANAGH, J.

purpose of a “nonexclusive easement of ingress and

egress,” where the easement was landlocked within the
defendant’s property. Keller, 381 Mich at 360. The
defendant argued that, in context, it was clear that the
easement was only intended to be used for parking. Id.
at 360-361. This Court concluded that the language was
ambiguous because a landlocked easement is “not a use
of ingress and egress within the common legal mean-
ing,” and accordingly it was appropriate for the Court to
use oral testimony to determine the true intent of the
parties. Id. at 362.
Similarly, in this case, the surrounding circumstances
show that there was a latent ambiguity; therefore, extrin-
sic evidence should be used to determine and effectuate
the intent of the parties. The central and south drive
easements were described in the deeds as “a non-exclusive
right of way for driveway purposes.” “Driveway purposes”
is not so unclear as to create a patent ambiguity. But the
parties’ use of the south drive easement for utilities at the
time the easements were created suggests that, as in
Keller, the parties’ understanding of “driveway purposes”
was not limited to its “common legal meaning.” Keller,
381 Mich at 362. Because there is a latent ambiguity, the
court may look to extrinsic evidence to determine the
intent of the parties. As explained in the lead opinion,
extrinsic evidence shows that the grantors intended that
the central easement could be used for utilities access for
plaintiffs’ property. Therefore, I concur that plaintiffs
should be granted relief.

II. LAND DIVISION ACT2

I respectfully dissent from the holding that the LDA

does not grant courts the power to alter substantive
2
MCL 560.101 et seq.
502 482 MICH 484 [Dec
OPINION BY CAVANAGH, J.

property rights. I think that the majority that reached

that holding errs in addressing this issue in this case. I
also think that its reasoning is flawed and that its
conclusion is too broad.
Most importantly, I do not think that it is necessary
for this Court to reach this issue in this case. The lead
opinion states that “[i]n this case, the LDA did not
create new substantive property rights when the circuit
court altered the plat to reflect that the central ease-
ment encompasses utility access” because “[t]his right
existed with respect to the central easement since its
inception . . . .” Ante at 496. I agree. Accordingly, it is
irrelevant to the outcome of this case whether, as a
general proposition, the LDA allows courts to alter the
underlying substantive rights of the property owners.
Therefore, this Court does not need to address this
issue.
Nonetheless, as I am forced to discuss it, I tend to
disagree with the lead opinion’s conclusion that
“[t]he LDA was never intended to enable a court to
establish an otherwise nonexistent property right.”
Ante at 496. I think that there are some flaws in the
lead opinion’s reasoning and that this conclusion is
too broad.
Both MCL 560.221 and 560.226(1) state that courts
may vacate, correct, or revise a recorded plat. Section
226(1) lists several exceptions to this power, but other-
wise does not explain when or why courts should vacate,
correct, or revise a plat. The lead opinion reasons that
the LDA’s grant of power to the courts to vacate,
correct, or revise a plat is not a substantive power
because the act defines a plat as a map, and everybody
knows that revising a map does not automatically revise
the underlying substantive property rights. Regardless
of whether the majority on this issue is correct in
2008] TOMECEK V BAVAS 503
OPINION BY CAVANAGH, J.

concluding that the LDA does not permit courts to alter

property rights, I do not think that its reasoning is
focused on the proper question.
The relevant question is not whether a plat is a
map; rather, the question is whether the Legislature
intended to give courts the power to alter substantive
property rights by revising a map under the circum-
stances in a given case. The lead opinion gives as an
example that “[i]f one ‘revises’ a map of the United
States to show Michigan encompassing half of the
country, it does not make it so.” Ante at 496. This
statement is of course true of the average judge
sitting at home with a book of Rand McNally maps
and a permanent marker. But, if a duly empowered
Legislature passed a statute stating that when a court
revises the boundaries of a map, that revision has the
legal effect of changing the boundaries, then a court’s
revision of a map would indeed create a substantive
change.3 If the lead opinion’s conclusion is correct, the
reason it is correct cannot be that a revision to a map,
by definition, can never alter substantive property
rights.
In addition to disagreeing with the lead opinion’s
reasoning, I tend to think that the lead opinion’s
statement that the LDA never permits courts to alter
property rights through its power to vacate, correct, or
3
The act itself demonstrates that the Legislature in some instances
intended that a plat not only reflect existing property rights, but also
be the sole legal basis for creating that right. For example, MCL
560.253(1) states that “every dedication, gift or grant to the public or
any person, society or corporation marked or noted as such on the plat
shall be deemed sufficient conveyance to vest the fee simple of all
parcels of land so marked . . . .” Under this provision of the LDA, if a
plat is amended to include a dedication, then that amendment creates
a property right. In other words, the act of amending the plat also
amends a property right.
504 482 MICH 484 [Dec
OPINIONS BY WEAVER AND YOUNG, JJ.

revise a plat is too broad.4 Instead, I would state that

the Legislature intended MCL 560.221 and 560.226(1)
to permit courts to alter property rights in at least some
circumstances. I will not attempt to exhaustively deter-
mine when the LDA grants courts the power to alter
property rights because the facts of this case do not
present a suitable basis for analyzing these issues.
Regardless, I believe that this Court’s approach to this
issue should be more cautious, nuanced, and case-
specific than the approach taken by the lead opinion.

CONCLUSION

I would affirm the Court of the Appeals result and

vacate its reasoning. I think that the easement lan-
guage was latently ambiguous and that the circum-
stances surrounding its writing show that the grantors
intended plaintiffs’ property to access utilities through
the central drive easement. I respectfully dissent from
the holding that the LDA never enables a court to alter
property rights.

WEAVER, J., concurred with CAVANAGH, J.

WEAVER, J. (concurring in part and dissenting in

part). I partially concur with and dissent from the lead
4
For example, this Court has stated that § 226(1) is the exclusive
remedy for landowners seeking to vacate, revise, or correct a private
dedication. Martin v Beldean, 469 Mich 541, 542-543; 677 NW2d 312
(2004). Vacating a dedication on a plat alters property rights; if § 226(1)
is the “exclusive” way to make this change, then it must be that the
statute itself permits courts to alter property rights. In Martin, this
Court held that a plaintiff had to bring an action to void a private
dedication under the LDA and not as an action to quiet title. Martin, 469
Mich at 550-552. If the LDA was not the legal basis for the court’s power
to void a dedication, then this Court would have held that the plaintiff
was required to bring an action to quiet title and an action under the
LDA.
2008] TOMECEK V BAVAS 505
OPINION BY YOUNG, J.

opinion’s conclusions for the reasons stated in Justice

CAVANAGH’s partial concurrence and partial dissent,
which I join.

YOUNG, J. (concurring in part and dissenting in part).

I concur with Justice KELLY’s opinion insofar as it holds
that the Land Division Act does not give trial courts the
authority to alter substantive property rights and it
declines to address the common-law doctrine of ease-
ments by necessity. I write only to express misgivings
with regard to her disposition on whether the grantors
of the plaintiffs’ easement intended to give the plaintiffs
utilities access in addition to ingress and egress. Justice
KELLY’s explanation that the grantors intended that the
plaintiffs use their easement in the same manner that
the defendants used their easement at the time of the
grant is plausible (and quite possibly correct).1 Never-
theless, I am not convinced that the mere fact that the
defendants have used their easement for utilities access
gives the plaintiffs the right to use their separate
easement similarly. Because there is insufficient evi-
dence of the grantors’ actual intent concerning the
plaintiffs’ particular easement at the time the easement
was created, I cannot assent to Justice KELLY’s ultimate
result that interprets the plaintiffs’ easement as encom-
passing utilities access. I therefore respectfully dissent
from Justice KELLY’s determination of the grantors’
intent, although I concur with Justice KELLY insofar as
she interprets the Land Division Act and declines to
reach the common-law doctrine of easements by neces-
sity.2 Rather than affirm the Court of Appeals result,
1
Although there are many nominal defendants in this case, I use the
term “defendants” throughout this opinion to refer only to those defen-
dants who own property in the O. T. Henkle Subdivision.
2
Because this case came before this Court on cross-motions for
summary disposition, and because the question of the grantors’ intent
506 482 MICH 484 [Dec
OPINION BY YOUNG, J.

which grants the plaintiffs’ motion for summary dispo-

sition, I would instead remand this case to the Berrien
County Trial Court for trial.

CORRIGAN and MARKMAN, JJ., concurred with YOUNG,

J.
would remain open on remand, it is not necessary at this point for me to
determine whether the doctrine of easement by necessity should be
expanded to include utilities access.
2008] MOORE V SECURA INS 507

MOORE v SECURA INSURANCE

Docket No. 135028. Argued October 2, 2008. Decided December 30, 2008.
Hattie and James Moore brought an action in the Genesee Circuit
Court against Secura Insurance, seeking no-fault insurance ben-
efits for injuries sustained by Hattie Moore (hereafter plaintiff) in
an automobile accident. The plaintiff had filed an application for
benefits with the defendant seeking work-loss benefits, personal
protection insurance (PIP) benefits, and uninsured motorist ben-
efits for pain and suffering. The defendant had paid work-loss and
injury benefits for approximately one year until a doctor retained
by the defendant to conduct an independent medical examination
(IME) concluded that the plaintiff’s injuries caused by the accident
had healed and that her remaining injuries were caused by
preexisting conditions. The jury awarded the plaintiff $50,000 in
noneconomic damages for the uninsured motorist claim, $42,755
for unpaid work-loss for the PIP claim, and $98.71 in penalty
interest for overdue work-loss benefits. The court, Thomas L.
Brown, J., granted the plaintiff’s motion for attorney fees and,
pursuant to MCL 500.3148, awarded the plaintiff $79,415 in
attorney fees and costs. The defendant appealed, alleging that the
trial court erred both in its decision to grant attorney fees and
costs and with regard to the amount awarded. The Court of
Appeals, SAWYER and DAVIS, JJ. (WILDER, P.J., dissenting), affirmed
the trial court’s conclusion that the denial of benefits was unrea-
sonable because the defendant made no inquiry beyond the
opinion of the doctor who conducted the IME, and therefore held
that the conditions for an attorney fee award under MCL 500.3148
were satisfied because the jury found that at least some of the
benefit payments were overdue. The Court rejected the defen-
dant’s claim that the plaintiff was entitled only to the portion of
the attorney fees directly attributable to securing the penalty
interest award. 276 Mich App 195 (2007). The Supreme Court
ordered and heard oral argument on whether to grant the defen-
dant’s application or take other peremptory action. 482 Mich 883
(2008).
In an opinion by Justice CORRIGAN, joined by Chief Justice
TAYLOR and Justices YOUNG and MARKMAN, the Supreme Court held:
508 482 MICH 507 [Dec

The Court of Appeals erred in its interpretation of MCL

500.3142 and MCL 500.3148. Because the jury awarded the
plaintiff only $98.71 in penalty interest and failed to award penalty
interest on the $42,755 in unpaid work-loss benefits, those benefits
are not overdue under MCL 500.3124(2). Further, the discontinu-
ation of the plaintiff’s benefits was reasonable under MCL
500.3148(1). Nothing in MCL 500.3148(1) requires an insurer to
reconcile conflicting medical opinions. Because the plaintiff of-
fered no additional reasons to support the unreasonableness of the
defendant’s refusal to pay benefits, the plaintiff is not entitled to
attorney fees. An insurer’s initial refusal to pay no-fault insurance
benefits cannot be deemed unreasonable if it is later determined
that the insurer was not required to pay those benefits.
1. The Court of Appeals erred by failing to follow the unam-
biguous language of MCL 500.3142 and MCL 500.3148, which
establish that attorney fees are payable only for overdue benefits
that the insurer has unreasonably refused to pay or unreasonably
delayed in paying. In this case, despite instructions from the trial
court and on the verdict form, the jury declined to award penalty
interest on the $42,755 in unpaid work-loss benefits that it
awarded the plaintiff, although it did award $98.71 in penalty
interest, which represents one week of delayed work-loss benefits.
The jury effectively found that only one week of work-loss benefits
was overdue. Therefore, the jury must have found that the $42,755
in work-loss benefits was not overdue under the plain meaning of
MCL 500.3142 and MCL 500.3148. While this result seems incon-
sistent, the jury may have concluded that the preexisting osteoar-
thritic degeneration in the plaintiff’s knees cast doubt on whether
the defendant had reasonable proof of accident-specific injuries for
which payment was due, or it may have concluded that the
defendant should not be faulted for its computer glitch where the
plaintiff did not promptly notify the defendant about the error.
Because an interpretation of the evidence provides a logical
explanation for the jury’s finding, it must be upheld.
2. Nothing in the plain language of MCL 500.3148(1) and
nothing otherwise implicit in the statute requires an insurer to
reconcile conflicting medical opinions. Accordingly, Liddell v De-
troit Automobile Inter-Ins Exch, 102 Mich App 636 (1981), which
held the contrary, is overruled, and defendant’s termination of
plaintiff’s work-loss benefits without attempting to reconcile the
opinions of its independent medical examiner and plaintiff’s
treating physicians in this case was not unreasonable.
3. The jury found that $822.52 or only one week of plaintiff’s
unpaid work-loss benefits was overdue, and defendant already had
2008] MOORE V SECURA INS 509

paid plaintiff $822.52 for one week of work-loss benefits and all
other payments that defendant owed as a result of the computer
glitch before the case went to trial. Because plaintiff did not
attribute any of the $79,415 that the trial court awarded her in
attorney fees and costs to collecting $822.52 in overdue work-loss
benefits, plaintiff is not entitled to attorney fees. Moreover, be-
cause the defendant did not unreasonably refuse to pay work-loss
benefits, plaintiff is not entitled to attorney fees incurred to collect
the $42,755 awarded by the jury. The only reason that plaintiff
contended that the defendant’s refusal to pay benefits was unrea-
sonable under MCL 500.3148(1) was its failure to reconcile the
opinions of its independent medical examiner and plaintiff’s
treating physicians, a proposition that has already been rejected.
4. An insurer’s initial refusal to pay no-fault benefits can be
deemed reasonable even if it is later determined that the insurer
was required to pay those benefits. However, this does not imply
that an insurer’s initial refusal to pay no-fault insurance benefits
can be deemed unreasonable, even though it is later determined
that the insurer did not owe those benefits. If an insurer does not
owe benefits, then benefits cannot be overdue for purposes of
determining whether attorney fees may be awarded.
Reversed and remanded for further proceedings.
Justice KELLY, joined by Justice WEAVER, dissenting, would
affirm the trial court’s award of attorney fees and its determina-
tion that the defendant’s behavior was unreasonable, stating that
the majority opinion improperly substituted its judgment for that
of the trial court and ignored the deferential standards of review
applicable in this case. She also would not overrule Liddell.
Justice CAVANAGH did not participate because of a familial relation-
ship with counsel for Secura Insurance.

1. INSURANCE — NO-FAULT — PAYMENT OF CLAIMS — INDEPENDENT MEDICAL

EXAMINATIONS.
An insurer is not statutorily required to reconcile the opinions of its
independent medical examiner and an insured’s treating physician
before refusing to pay work-loss benefits (MCL 500.3142[2], MCL
500.3148[1]).

2. INSURANCE — NO-FAULT — DELAY IN PAYMENT OF CLAIMS — ATTORNEY FEES.

An insurer’s initial refusal to pay no-fault insurance benefits cannot
be deemed unreasonable for purposes of awarding attorney fees if
it is later determined that the insurer was not required to pay
those benefits (MCL 500.3148[1]).
510 482 MICH 507 [Dec
OPINION OF THE COURT

Joliat, Tosto & Bade, PLC (by Peter M. Bade), for the
plaintiffs.

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

and Peter L. Diesel), for the defendant.

CORRIGAN, J. In this case, we consider the assessment

of attorney fees for “overdue” benefits under Michi-
gan’s no-fault insurance statutes. MCL 500.3101 et seq.1
Under these statutes, personal protection insurance
1
The relevant statutory provisions of MCL 500.3101 et seq. provide:

MCL 500.3142:

(1) Personal protection insurance benefits are payable as loss

accrues.

(2) Personal protection insurance benefits are overdue if not

paid within 30 days after an insurer receives reasonable proof of
the fact and of the amount of loss sustained. If reasonable proof is
not supplied as to the entire claim, the amount supported by
reasonable proof is overdue if not paid within 30 days after the
proof is received by the insurer. Any part of the remainder of the
claim that is later supported by reasonable proof is overdue if not
paid within 30 days after the proof is received by the insurer. For
the purpose of calculating the extent to which benefits are over-
due, payment shall be treated as made on the date a draft or other
valid instrument was placed in the United States mail in a
properly addressed, postpaid envelope, or, if not so posted, on the
date of delivery.

(3) An overdue payment bears simple interest at the rate of

12% per annum.

MCL 500.3148:

(1) An attorney is entitled to a reasonable fee for advising and

representing a claimant in an action for personal or property
protection insurance benefits which are overdue. The attorney’s
fee shall be a charge against the insurer in addition to the benefits
recovered, if the court finds that the insurer unreasonably refused
to pay the claim or unreasonably delayed in making proper
payment.
2008] MOORE V SECURA INS 511
OPINION OF THE COURT

benefits become “overdue” when an insurer fails to pay

“within 30 days after an insurer receives reasonable
proof of the fact and of the amount of loss sustained.”
MCL 500.3142(2). “An attorney is entitled to a reason-
able fee for advising and representing a claimant in an
action for personal . . . protection insurance benefits
which are overdue.” MCL 500.3148(1). Moreover, “the
attorney’s fee shall be a charge against the insurer . . . if
the court finds that the insurer unreasonably refused to
pay the claim or unreasonably delayed in making
proper payment.” Id. Therefore, whether a claimant’s
benefits qualify as overdue and whether an insurer
unreasonably refused to pay or unreasonably delayed in
making payment determine if a claimant’s attorney
may receive attorney fees.
In this case, a jury awarded plaintiff $50,000 in
noneconomic damages and $42,755 in unpaid work loss
benefits after defendant insurer stopped paying per-
sonal protection insurance benefits. The jury also
awarded $98.71 in penalty interest for overdue work
loss benefits. The trial court granted plaintiff’s motion
for attorney fees and costs, and the Court of Appeals
affirmed.
Because the Court of Appeals erred in its interpreta-
tion of MCL 500.3142 and MCL 500.3148, we reverse.

(2) An insurer may be allowed by a court an award of a

reasonable sum against a claimant as an attorney’s fee for the
insurer’s attorney in defense against a claim that was in some
respect fraudulent or so excessive as to have no reasonable
foundation. To the extent that personal or property protection
insurance benefits are then due or thereafter come due to the
claimant because of loss resulting from the injury on which the
claim is based, such a fee may be treated as an offset against such
benefits; also, judgment may be entered against the claimant for
any amount of a fee awarded against him and not offset in this way
or otherwise paid.
512 482 MICH 507 [Dec
OPINION OF THE COURT

Because the jury awarded plaintiff only $98.71 in pen-

alty interest and failed to award penalty interest on the
$42,755 awarded in unpaid work loss benefits, we
conclude that those benefits do not qualify as overdue
pursuant to MCL 500.3142(2). We also conclude that
the discontinuation of plaintiff’s benefits was reason-
able under MCL 500.3148(1). Because plaintiff offered
no additional reasons to support the unreasonableness
of defendant’s refusal to pay benefits, plaintiff is not
entitled to attorney fees. Moreover, we reject the Court
of Appeals erroneous statement that an insurer’s initial
refusal to pay no-fault insurance benefits can be
deemed unreasonable even though it is later deter-
mined that the insurer was not required to pay those
benefits.

I. FACTS AND PROCEDURAL HISTORY

On September 27, 2000, a pickup truck struck the

passenger side of plaintiff Hattie Moore’s automobile
while she was driving on I-475 in Genesee County.
Because of the accident, plaintiff fractured her right
knee, causing a bone chip. Before the accident, plaintiff
had suffered from osteoarthritis in both knees, and she
had been treated by an orthopedic surgeon, Dr. Norman
Walter. According to Dr. Walter, in November 1999, 10
months before the accident, he discussed knee replace-
ment surgery and injection treatments with plaintiff.
After the accident, plaintiff could not return to her
regular employment as a custodian. Defendant began
paying plaintiff work loss and other no-fault benefits in
December 2000. Defendant first paid plaintiff in De-
cember 2000. Because of a computer glitch, however,
defendant did not make its next payment to plaintiff
until March 2001. Before the trial, defendant rectified
its error, paying plaintiff the omitted payments as well
2008] MOORE V SECURA INS 513
OPINION OF THE COURT

as the 12 percent penalty interest that defendant owed.

Dr. Walter recommended surgery on plaintiff’s right
knee to repair the injury caused by the accident. On
January 22, 2001, Dr. Charles Xeller, a second orthope-
dic surgeon, performed an independent medical evalu-
ation (IME) of plaintiff at defendant’s request. Dr.
Xeller agreed that plaintiff’s right knee required sur-
gery, which Dr. Walter performed on January 26, 2001.
Following surgery, plaintiff remained off work and
continued treatment with Dr. Walter. In March 2001,
defendant retained Dan Schingeck, a nurse case man-
ager, to evaluate whether plaintiff could return to work.
Schingeck met with Dr. Walter on August 30, 2001.
After their meeting, Dr. Walter opined that plaintiff
would never be able to return to her normal employ-
ment as a custodian. Dr. Walter’s records do not reflect
whether he attributed plaintiff’s inability to work to her
accident-related injuries or her preexisting osteoarthri-
tis.
Defendant continued to pay work loss and other
no-fault benefits until Dr. Xeller performed a second
IME on September 25, 2001. After the second IME, Dr.
Xeller prepared a seven page report for defendant. In
his report, Dr. Xeller opined that plaintiff did not need
further treatment for her orthopedic complaints related
to the accident. Rather, he concluded that plaintiff had
severe osteoarthritic degeneration in both knees that
predated the accident, and that the accident had not
exacerbated plaintiff’s underlying osteoarthritis. Dr.
Xeller determined that plaintiff could return to work
with restrictions including, “no climbing, no walking on
uneven ground, no kneeling or squatting, limited walk-
ing, and no overhead lifting.” Additionally, Dr. Xeller
opined that plaintiff needed a total left knee replace-
ment and possibly a total right knee replacement in the
future.
514 482 MICH 507 [Dec
OPINION OF THE COURT

In November 2001, defendant discontinued plain-

tiff’s no-fault benefits because reasonable proof of
plaintiff’s claim no longer existed on the basis of Dr.
Xeller’s report. Plaintiff filed suit, seeking first-party
no-fault benefits from defendant. Plaintiff and her
husband also filed a second suit seeking uninsured
motorist benefits from defendant.
At trial, plaintiff sought approximately $96,000 in
work loss benefits, $21,000 for household or replace-
ment services, and more than $11,000 in penalty inter-
est. The jury awarded plaintiff $42,755 in work loss
benefits, no damages for household or replacement
services, and only $98.71 in penalty interest for overdue
payments. Plaintiff filed a postjudgment motion for
no-fault attorney fees and costs under MCL
500.3148(1). After a hearing to determine attorney fees
and costs, the trial court awarded plaintiff the full
amount that she requested, $79,415.
Defendant appealed both the trial court’s decision to
grant attorney fees and costs and the amount of attor-
ney fees and costs awarded to plaintiff. In a divided
opinion, the Court of Appeals affirmed the trial court’s
award of $79,415 in attorney fees and costs.2 Relying on
a definition of unreasonableness from Liddell v Detroit
Automobile Inter-Ins Exch, 102 Mich App 636, 650; 302
NW2d 260 (1981), the Court concluded that “the trial
court properly found the denial of benefits here unrea-
sonable where defendant made no inquiry beyond the
opinion of its own IME doctor.”3 The Court held that the
defendant insurer owed overdue benefits and that the
plaintiff satisfied conditions for attorney fees when “it
2
Moore v Secura Ins, 276 Mich App 195; 741 NW2d 38 (2007).
3
Moore, supra at 202.
2008] MOORE V SECURA INS 515
OPINION OF THE COURT

was determined below that the denial of the benefits

was unreasonable, and the jury found at least some of
the benefit payments overdue.”4 The Court held that
the trial court did not abuse its discretion “in awarding
plaintiff $79,415 in attorney fees when the jury
awarded plaintiff only $98.71 in penalty interest” be-
cause an insurer may “unreasonably refuse to pay
benefits even if the insurer is later deemed not liable for
them.”5
Court of Appeals Judge KURTIS T. WILDER dissented.6
Judge WILDER reasoned that plaintiff’s benefits were
not overdue and, therefore, plaintiff had no claim for
attorney fees “[u]nder the unambiguous language of
MCL 500.3148(1).”7 Moreover, Judge WILDER concluded
that, given the jury’s award of $98.71 in penalty inter-
est, it necessarily determined that defendant unreason-
ably had delayed payment of only one week of work loss
benefits.8 Judge WILDER further stated that, “[i]n my
view, no part of the $79,415 in attorney fees and costs in
this case was attributable to collecting the $822.52
overdue benefit, because that overdue benefit was paid
long before litigation.”9 Therefore, Judge WILDER would
have held “that the trial court erred as a matter of law
in granting attorney fees, because the jury did not
award overdue benefits to the plaintiff.”10 Defendant
then applied for leave to appeal to this Court. We
scheduled oral argument on the application and di-
rected the parties to address:
4
Id.
5
Id. at 203-204.
6
Id. at 205.
7
Id. at 208-209.
8
Id. at 209.
9
Id. at 214.
10
Id. at 215.
516 482 MICH 507 [Dec
OPINION OF THE COURT

(1) whether the benefits at issue were “overdue,”

MCL 500.3148(1), 500.3142(2); (2) whether defendant
“unreasonably refused to pay the claim or unreasonably
delayed in making proper payment,” MCL 500.3148(1);
(3) assuming defendant unreasonably refused to pay, but
also assuming that only a portion of the benefits sought
and awarded were “overdue,” whether MCL 500.3148(1)
permits recovery of attorney fees for all benefits sought
and recovered; and (4) whether the Court of Appeals
erred in suggesting that “it is . . . possible for an insurer
to unreasonably refuse to pay benefits even if the insurer
is later deemed not liable for them.” [Moore v Secura Ins,
482 Mich 883 (2008).]

II. STANDARD OF REVIEW

The Court reviews de novo issues of statutory

interpretation. Saffian v Simmons, 477 Mich 8, 12;
727 NW2d 132 (2007). “The trial court’s decision
about whether the insurer acted reasonably involves
a mixed question of law and fact. What constitutes
reasonableness is a question of law, but whether the
defendant’s denial of benefits is reasonable under the
particular facts of the case is a question of fact.” Ross
v Auto Club Group, 481 Mich 1, 7; 748 NW2d 552
(2008). This Court reviews de novo questions of law,
but we review findings of fact for clear error. Id. “A
decision is clearly erroneous when ‘the reviewing
court is left with a definite and firm conviction that a
mistake has been made.’ ” Id., quoting Kitchen v
Kitchen, 474 Mich 654, 661-662; 641 NW2d 245
(2002). Moreover, we review a trial court’s award of
attorney fees and costs for an abuse of discretion.
Smith v Khouri, 481 Mich 519, 526; 751 NW2d 472
(2008). An abuse of discretion occurs when the trial
court’s decision is outside the range of reasonable and
principled outcomes. Id.
2008] MOORE V SECURA INS 517
OPINION OF THE COURT
III. LEGAL ANALYSIS

A. OVERDUE BENEFITS

“When interpreting statutes, our primary goal is to

give effect to the intent of the Legislature.” Nastal v
Henderson & Assoc Investigations, Inc, 471 Mich 712,
720; 691 NW2d 1 (2005). We review the language of the
statute itself and give the words used by the Legislature
their common and ordinary meaning. Id. “If the statu-
tory language is unambiguous, we must presume that
the Legislature intended the meaning it clearly ex-
pressed and further construction is neither required
nor permitted.” Id.
MCL 500.3148(1) establishes two prerequisites for
the award of attorney fees. First, the benefits must be
overdue, meaning “not paid within 30 days after [the]
insurer receives reasonable proof of the fact and of the
amount of loss sustained.” MCL 500.3142(2). Second, in
postjudgment proceedings, the trial court must find
that the insurer “unreasonably refused to pay the claim
or unreasonably delayed in making proper payment.”
MCL 500.3148(1). Therefore, assigning the words in
MCL 500.3142 and MCL 500.3148 their common and
ordinary meaning, “attorney fees are payable only on
overdue benefits for which the insurer has unreason-
ably refused to pay or unreasonably delayed in paying.”
Proudfoot v State Farm Mut Ins Co, 469 Mich 476, 485;
673 NW2d 739 (2003) (emphasis omitted).
In this case, the verdict form instructed jurors to
award “12 percent interest per annum from the date
that the expense or loss became overdue.” In contrast,
the trial court’s jury instructions simply directed jurors
to award 12 percent interest with no indication that the
12 percent interest should be “per annum.” Moreover,
the trial court specifically instructed the jury that if
518 482 MICH 507 [Dec
OPINION OF THE COURT

plaintiff did not provide reasonable proof for her entire

claim, then it must award interest for any pro rata
portion for which plaintiff did supply reasonable proof.
While plaintiff requested more than $11,000 in penalty
interest, defendant requested that the jury award plain-
tiff only $121.50 in penalty interest. Instead of award-
ing the amount requested by either party, the jury
awarded only $98.71 in penalty interest.11
The jury’s decisions to award plaintiff $42,755 in
unpaid work loss benefits, but only $98.71 in penalty
interest, seems inconsistent because if the jury had
determined that the work loss benefits owed were
overdue, then the jury instructions mandated that it
award 12 percent penalty interest on the full amount of
overdue benefits, as required by MCL 500.3142(3). This
Court will uphold a jury’s verdict, however, where
“ ‘there is an interpretation of the evidence that pro-
vides a logical explanation for the findings of the jury.’ ”
Bean v Directions Unlimited, Inc, 462 Mich 24, 31-32;
609 NW2d 567 (2000), quoting Granger v Fruehauf
Corp, 429 Mich 1, 7; 412 NW2d 199 (1987).
The jury’s conclusion that plaintiff was owed work
loss benefits did not also require it to conclude that
those benefits were overdue. It may have concluded
that the preexisting osteoarthritic degeneration in
plaintiff’s knees cast doubt on whether defendant had
reasonable proof of plaintiff’s accident-specific injuries,
and, therefore, whether payments were due under MCL
500.3142(2). The jury also may have concluded that
defendant should not be faulted for its computer glitch
where plaintiff did not promptly notify defendant about
the error. The jury’s award of $98.71 in penalty interest
11
As Judge WILDER notes in his dissent, $98.71 is 12 percent of $822.52,
and $822.52 represents the one week of delayed work loss benefits for
which plaintiff provided reasonable proof. Moore, supra at 209.
2008] MOORE V SECURA INS 519
OPINION OF THE COURT

represents exactly 12 percent of one week of plaintiff’s

work loss benefits, which defendant calculated at
$822.52. Thus, the jury decided that only one week of
work loss benefits was overdue. Because there is an
interpretation of the evidence that provides a logical
explanation for the jury’s verdict, we uphold it.
MCL 500.3148(1) further provides that an attorney
may only receive fees for representing a claimant in an
action for “benefits which are overdue.” In MCL
500.3142(2), the Legislature explains that overdue ben-
efits are those benefits “not paid within 30 days after an
insurer receives reasonable proof of the fact and of the
amount of loss sustained.” Neither MCL 500.3142(2)
nor MCL 500.3148(1) permits the recovery of attorney
fees for actions in which a court awarded plaintiff
benefits that were reasonably in dispute, or, stated
slightly differently, benefits not yet overdue.
In addition to being consistent with Judge WILDER’s
dissent,12 our view coincides with another Court of
Appeals decision in which a jury refused to award
penalty interest because benefits were not overdue
under MCL 500.3142. Beach v State Farm Mut Automo-
bile Ins Co, 216 Mich App 612; 550 NW2d 580 (1996). In
Beach, the Court held that a jury’s decision that ben-
efits were not overdue for purposes of MCL 500.3142
precluded the trial court from awarding attorney fees
pursuant to MCL 500.3148(1) because a plaintiff is
entitled to attorney fees only for overdue benefits. Id. at
630.
The Court of Appeals erred by failing to follow the
unambiguous language of MCL 500.3142 and MCL
500.3148. In this case, despite instructions from the
trial court and on the verdict form, the jury declined to
12
Moore, supra at 205-215.
520 482 MICH 507 [Dec
OPINION OF THE COURT

award penalty interest on the $42,755 in unpaid work

loss benefits that it awarded plaintiff. From its award of
$98.71 in penalty interest, we conclude that the jury
found that only one week of work loss benefits was
overdue. Therefore, the jury must have found that the
$42,755 in work loss benefits was not overdue under the
plain meaning of MCL 500.3142 and MCL 500.3148.
Because, as noted above, “ ‘there is an interpretation of
the evidence that provides a logical explanation’ ” for
this finding, Bean, supra at 31, quoting Granger, supra
at 7, we agree with the jury’s conclusion that the
$42,755 in work loss benefits was not overdue at the
time of the trial.

B. UNREASONABLE REFUSAL OR DELAY

MCL 500.3148(1) provides in relevant part, “[t]he

attorney’s fee shall be a charge against the insurer in
addition to the benefits recovered, if the court finds that
the insurer unreasonably refused to pay the claim or
unreasonably delayed in making proper payment.” The
Court of Appeals recognized that an insurer’s refusal to
pay benefits is not unreasonable “ ‘[i]f the insurer’s
refusal or delay in payment is the product of a legiti-
mate question of statutory construction, constitutional
law, or a bona fide factual uncertainty.’ ”13 The Court
traced its definition of “unreasonableness” to Liddell,
supra at 650, in which the Court affirmed attorney fees
under MCL 500.3148 “on the basis of the refusal of the
defendant insurer to reconcile the opinion of one doctor
that the plaintiff’s injuries from an accident no longer
precluded him from employment with the contradictory
opinions of the plaintiff’s treating physicians.”14 Com-
paring the facts of this case to the facts of Liddell, the
13
Moore, supra at 199, quoting Beach, supra at 629.
14
Moore, supra at 200.
2008] MOORE V SECURA INS 521
OPINION OF THE COURT

Court reasoned, “[h]ere, as in Liddell, defendant in-

surer terminated plaintiff’s work loss benefits without
attempting to reconcile the opinions of its independent
medical examiner and plaintiff’s treating physicians.”
The Court of Appeals concluded, “[u]nder these circum-
stances, the trial court did not clearly err in finding that
defendant unreasonably terminated plaintiff’s ben-
efits . . . .”15
We reject the Court of Appeals analysis of Liddell. In
Liddell, the Court held that a trial court did not clearly
err when it found an insurer’s conduct unreasonable
where the insurer “did not attempt to contact” physi-
cians with conflicting opinions “or in some other way
attempt to ascertain the true situation in the face of
contradictory reports.”16 Nothing in the plain language
of MCL 500.3148(1), however, requires an insurer to
reconcile conflicting medical opinions. Moreover, noth-
ing otherwise implicit in the statute requires an insurer
to reconcile competing medical opinions. Therefore, in
accordance with the plain language of MCL
500.3148(1), we overrule Liddell.
The Court of Appeals erred in affirming the trial
court’s finding that, because defendant knew that other
doctors were involved in plaintiff’s case, it was “incum-
bent upon the carrier to go beyond” defendant’s doctor
and that the defendant insurer “could have sought
further information before exercising the draconian
termination of critical benefits for one who is injured.”17
The Court of Appeals misconstrued the plain language
of MCL 500.3148(1) and thereby imposed additional
duties on insurers beyond those duties already estab-
lished in Michigan’s no-fault insurance statutes. We
15
Id. at 201.
16
Liddell, supra at 651.
17
Moore, supra at 200.
522 482 MICH 507 [Dec
OPINION OF THE COURT

acknowledge that the trial court’s decision about

whether an insurer acted reasonably presents a mixed
question of law and fact.18 We hold that the trial court
here erred as a matter of law.
The plain language of MCL 500.3101 et seq. does not
impose an independent duty on insurers to “go beyond”
the medical opinion of their physicians and the IMEs
that those physicians perform. Instead, “[t]he determi-
native factor in our inquiry is not whether the insurer
ultimately is held responsible for benefits, but whether
its initial refusal to pay was unreasonable.”19 To deter-
mine whether the initial refusal to pay was unreason-
able, the trial court must give effect to the unambiguous
language of MCL 500.3148(1). MCL 500.3148(1) re-
quires that the trial court engage in a fact-specific
inquiry to determine whether “the insurer unreason-
ably refused to pay the claim or unreasonably delayed in
making proper payment.”
We conclude that an insurer need not resort to a “tie
breaker” to resolve conflicting medical reports, but we
note that an insurer acts at its own risk in terminating
benefits in the face of conflicting medical reports.20
Here, however, defendant’s decision not to seek out
another physician to prepare yet another IME in order
to reconcile the conflicting opinions of Dr. Walter and
Dr. Xeller was not unreasonable under the fact-specific
inquiry mandated by MCL 500.3148. MCL 500.3142(2)
provides in relevant part: “[i]f reasonable proof is not
18
Ross, supra at 7 (“What constitutes reasonableness is a question of
law, but whether the defendant’s denial of benefits is reasonable under
the particular facts of the case is a question of fact.”).
19
Id. at 11.
20
Id. (“Accordingly, an insurer’s refusal or delay places a burden on the
insurer to justify its refusal or delay. The insurer can meet this burden by
showing that the refusal or delay is the product of a legitimate question
of statutory construction, constitutional law, or factual uncertainty.”)
2008] MOORE V SECURA INS 523
OPINION OF THE COURT

supplied as to the entire claim, the amount supported

by reasonable proof is overdue if not paid within 30 days
after proof is received by the insurer.” Under the plain
language of the statute, the claimant shoulders the
initial burden to supply reasonable proof of her entire
claim, or reasonable proof for some portion thereof.
When the claimant provides such evidence, the insurer
then must evaluate that evidence as well as evidence
supplied by the insurer’s doctor before making a rea-
sonable decision regarding whether to provide the ben-
efits sought.
We reject the trial court’s conclusion that the defen-
dant insurer must “go beyond” defendant’s doctor or
IME. We hold that the Court of Appeals erred in
affirming the trial court’s ruling that defendant unrea-
sonably terminated plaintiff’s benefits. Under the un-
ambiguous language of MCL 500.3148(1) and MCL
500.3142(2), defendant’s decision to discontinue plain-
tiff’s benefits in light of a legitimate factual uncertainty
was reasonable.

C. ATTORNEY FEES

In Proudfoot, supra at 485, this Court held that

“attorney fees are payable only on overdue benefits for
which the insurer has unreasonably refused to pay or
unreasonably delayed in paying.” (Emphasis omitted.)
MCL 500.3148(1) provides in relevant part, “[t]he at-
torney’s fee shall be a charge against the insurer in
addition to the benefits recovered, if the court finds that
the insurer unreasonably refused to pay the claim or
unreasonably delayed in making proper payment.”
In this case, the jury found that $822.52, or only one
week of plaintiff’s unpaid work loss benefits, were
overdue. Generally, plaintiff’s attorney would be en-
titled to attorney fees incurred to collect those overdue
524 482 MICH 507 [Dec
OPINION OF THE COURT

benefits. Here, however, before plaintiff’s suit went to

trial, defendant already had paid plaintiff $822.52 for
one week of work loss benefits and all other payments
that defendant owed as a result of the computer glitch.
Because plaintiff did not attribute any of the $79,415
that the trial court awarded her in attorney fees and
costs to collecting $822.52 in overdue work loss ben-
efits, plaintiff is not entitled to attorney fees.
Moreover, because, as shown above, defendant did
not unreasonably refuse to pay work loss benefits,
plaintiff is not entitled to attorney fees incurred to
collect the $42,755 awarded by the jury. Our review of
the lower court record reveals that plaintiff proffered
only one reason that defendant’s refusal to pay benefits
was unreasonable under MCL 500.3148(1). Specifically,
during the hearing on plaintiff’s motion for attorney
fees, plaintiff’s counsel argued that defendant unrea-
sonably discontinued benefits solely because of defen-
dant’s reliance on the second IME performed by Dr.
Xeller. Related to his broader argument, plaintiff’s
counsel faulted defendant for not sharing Dr. Xeller’s
IME with plaintiff’s other physicians, not asking plain-
tiff’s other physicians if they agreed with Dr. Xeller’s
second IME, and not educating themselves about os-
teoarthritis. To further buttress his argument, plain-
tiff’s counsel relied on Liddell for the proposition that
defendant must reasonably evaluate plaintiff’s medical
condition.
As previously discussed, however, defendant’s reli-
ance on Dr. Xeller’s second IME was not unreasonable
under the plain language of MCL 500.3148(1). Forcing
defendant to “go beyond” what the unambiguous statu-
tory language mandates would effectively require it to
shoulder plaintiff’s initial burden pursuant to MCL
500.3142(2). Further, this Court already has concluded
2008] MOORE V SECURA INS 525
OPINION OF THE COURT

that the Court of Appeals misconstrued Liddell and,

therefore, that Court’s reading of Liddell is inappli-
cable. Moreover, even if we had not overruled Liddell
and the case were applicable, we note that defendant
here did significantly more than the insurer in that
case, including requesting two separate IMEs and hir-
ing a nurse case manager to investigate whether plain-
tiff could return to work.
Because plaintiff did not attribute any of the $79,415
that the trial court awarded her in attorney fees and
costs to collecting the $822.52 in overdue work loss
benefits as determined by the jury’s penalty interest
award, and because there is no evidence in the lower
court record that defendant’s refusal to pay benefits
was unreasonable, plaintiff is not entitled to any attor-
ney fees under MCL 500.3148(1).

D. ERRONEOUS STATEMENT OF LAW

The Court of Appeals majority erred by relying on

McCarthy v Auto Club Ins Ass’n, 208 Mich App 97; 527
NW2d 524 (1994), for the proposition that “[i]t is . . .
possible for an insurer to unreasonably refuse to pay
benefits even if the insurer is later deemed not liable for
them.”21 In actuality, the McCarthy Court addressed the
inverse proposition, namely, that “the scope of inquiry
under [MCL 500.3148] is not whether the insurer
ultimately is held responsible for a given expense, but
whether its initial refusal to pay the expense was
unreasonable.” McCarthy, supra at 105. Otherwise
stated, an insurer’s initial refusal to pay benefits under
Michigan’s no-fault insurance statutes can be deemed
reasonable even though it is later determined that the
insurer was required to pay those benefits.
21
Moore, supra at 204, citing McCarthy, supra at 105.
526 482 MICH 507 [Dec
OPINION OF THE COURT

We recently affirmed the proposition expressed in

McCarthy that an insurer’s initial refusal to pay no-
fault benefits can be deemed reasonable even if it is
later determined that the insurer was required to pay
those benefits. Ross, supra at 11. This Court’s state-
ment in Ross and the Court’s statement in McCarthy,
however, do not permit us to assume that the inverse
proposition as expressed by the Court of Appeals is
similarly correct. Nothing in our jurisprudence suggests
that an insurer’s initial refusal to pay no-fault insur-
ance benefits can be deemed unreasonable, even though
it is later determined that the insurer did not owe those
benefits. The Court of Appeals proposition effectively
penalizes an insurer for refusing to pay benefits that
the insurer had no obligation to pay. In contrast, we
conclude that if an insurer does not owe benefits, then
benefits cannot be overdue. Therefore, before a court
may award attorney fees, benefits must be overdue, and
an insurer must have unreasonably refused to pay the
claim or delayed in payment.
Accordingly, we reject the Court of Appeals statement
that “it is . . . possible for an insurer to unreasonably
refuse to pay benefits even if the insurer is later deemed
not liable for them.” Moore, supra at 204.

IV. CONCLUSION

If an insurer’s payment does not qualify as overdue,

a claimant’s attorney may not receive attorney fees
under Michigan’s no-fault insurance statutes. MCL
500.3101 et seq. In this case, the Court of Appeals failed
to give effect to the clearly expressed intent of the
Legislature in MCL 500.3142 and MCL 500.3148. Be-
cause the jury awarded plaintiff only $98.71 in penalty
interest and failed to award penalty interest on the
$42,755 that it awarded in unpaid work loss benefits,
2008] MOORE V SECURA INS 527
DISSENTING OPINION BY KELLY, J.

we conclude that those benefits do not qualify as overdue

pursuant to MCL 500.3142(2). Moreover, defendant’s act
of discontinuing plaintiff’s benefits did not constitute
either an unreasonable refusal to pay or unreasonable
delay under MCL 500.3148(1). Because plaintiff offered no
additional reasons to support the unreasonableness of
defendant’s refusal to pay benefits, plaintiff is not entitled
to attorney fees. Finally, we reject the Court of Appeals
erroneous statement that an insurer’s initial refusal to
pay no-fault insurance benefits can be deemed unreason-
able even though it is later determined that the insurer
was not required to pay those benefits.
Accordingly, we reverse the Court of Appeals and
remand for further proceedings consistent with our
opinion.

TAYLOR, C.J., and YOUNG and MARKMAN, JJ., concurred

with CORRIGAN, J.

CAVANAGH, J., did not participate because of a familial

relationship with counsel for Secura Insurance.

KELLY, J. (dissenting). I dissent from the majority

opinion reversing the Court of Appeals judgment. I
would hold that the Court of Appeals correctly analyzed
the issues involved. I also believe that the majority
opinion improperly substitutes its judgment for that of
the trial court and ignores the deferential standards of
review applicable here. I would therefore uphold the
trial court’s award of attorney fees and its determina-
tion that defendant’s behavior was unreasonable. Fi-
nally, I would not overrule Liddell v Detroit Automobile
Inter-Ins Exch.1
1
Liddell v Detroit Automobile Inter-Ins Exch, 102 Mich App 636; 302
NW2d 260 (1981).
528 482 MICH 507 [Dec
DISSENTING OPINION BY KELLY, J.
FACTS AND PROCEDURAL HISTORY

In September 2000, plaintiff Hattie Moore’s automo-

bile was struck while she was driving on I-475 in
Genesee County. Plaintiff’s right knee was fractured in
the accident. She was unable to return to her custodial
job. Defendant, plaintiff’s no-fault insurer, began pay-
ing her work loss benefits and other no-fault benefits in
December 2000.
Both before and after the accident, plaintiff received
treatment from an orthopedic surgeon, Dr. Norman
Walter. She had originally sought treatment from Dr.
Walter for osteoarthritis in both knees. Following the
accident, Dr. Walter recommended surgery on plaintiff’s
right knee to repair the injury caused by the accident.
At defendant’s request, Dr. Charles Xeller, also an
orthopedic surgeon, also examined plaintiff. Dr. Xeller,
in his independent medical examination (IME), agreed
with the need for surgery. Dr. Walter operated on
plaintiff’s right knee on January 26, 2001.
Plaintiff remained unable to return to work after the
surgery and continued to treat with Dr. Walter. Defen-
dant meanwhile retained Dan Schingeck, a nurse case
manager, to explore whether plaintiff could return to
work. Schingeck met with Dr. Walter in August 2001.
Some time after that meeting, Dr. Walter expressed his
opinion that plaintiff would never be able to return to
her normal employment. It is unclear, however, whether
Dr. Walter formed that opinion because of the injuries
plaintiff suffered in the automobile accident or because
of plaintiff’s osteoarthritis.
Dr. Xeller performed a second IME of plaintiff at
defendant’s request on September 25, 2001. This report
stated that plaintiff no longer required any treatment
for her orthopedic injuries sustained in the accident.
The report further concluded that plaintiff had signifi-
2008] MOORE V SECURA INS 529
DISSENTING OPINION BY KELLY, J.

cant osteoarthritic deterioration in both knees that had

not been exacerbated by the accident. Dr. Xeller opined
that plaintiff could return to restricted work activities.
On the basis of Dr. Xeller’s second IME, defendant
terminated plaintiff’s no-fault benefits. Plaintiff then
filed a lawsuit seeking first-party no-fault benefits.
Plaintiff later added a second lawsuit seeking unin-
sured motorist benefits from defendant. The cases were
tried together before a jury, in June 2005.
The jury awarded plaintiff $42,755 in work loss
benefits, $98.71 in penalty interest, and $50,000 in
noneconomic losses related to plaintiff’s uninsured mo-
torist claim. After judgment was entered, plaintiff filed
a motion for attorney fees and costs under MCL
500.3148(1). The trial judge heard oral argument on the
motion and ultimately granted it. Following a hearing
before another judge, plaintiff was awarded $79,415 in
attorney fees and costs.
Defendant appealed only the award of attorney fees
and costs. The Court of Appeals affirmed in a divided
opinion,2 and defendant sought leave to appeal in this
Court. We scheduled oral argument on the application.3

ANALYSIS

A. OVERDUE BENEFITS

Under MCL 500.3148(1), attorney fees may be

awarded only (1) “in an action for personal or property
protection insurance benefits which are overdue” and
(2) when the insurer “unreasonably refused to pay the
claim or unreasonably delayed in making proper pay-
ment.” The jury’s finding that benefits were “overdue”
2
Moore v Secura Ins, 276 Mich App 195; 741 NW2d 38 (2007).
3
Moore v Secura Ins, 482 Mich 883 (2008).
530 482 MICH 507 [Dec
DISSENTING OPINION BY KELLY, J.

will be upheld if “there is an interpretation of the

evidence that provides a logical explanation for the
findings of the jury.”4 In this case, the majority upholds
the jury’s finding that some benefits were overdue.
However, it then extrapolates from the amount of
penalty interest awarded that “the jury declined to
award penalty interest on the $42,755 in unpaid work
loss benefits that it awarded plaintiff.”5
Instead, the majority concludes that the jury found
“only one week of work loss benefits was overdue.”6 The
majority then opines (1) that the jury attributed this
overdue week of work loss benefits to benefits paid late
by defendant to plaintiff before trial to a computer
glitch, and (2) “that the $42,755 in work loss benefits
was not overdue at the time of the trial.”7 Therefore,
the majority asserts that “the $42,755 in work loss
benefits was not overdue under the plain meaning of
MCL 500.3142 and MCL 500.3148.”8
The majority cannot claim to have insight into the
minds of the jurors in this case. Any analysis of the
jury’s conclusions must be based on the record.
With that in mind, it should be noted that, the
majority fails to reference the parts of the jury verdict
form where the jury was specifically asked these ques-
tions:
QUESTION NO. 1: Did Hattie Moore sustain work loss
arising out of the accidental bodily injury she sustained in
the September 27, 2000 motor vehicle accident?

4
Granger v Fruehauf Corp, 429 Mich 1, 7; 412 NW2d 199 (1987).
5
Ante at 519-520.
6
Ante at 519.
7
Ante at 518, 520. Because the majority makes this logical leap on the
basis of speculation about the jury’s conclusions, I reject it from the
outset.
8
Ante at 520.
2008] MOORE V SECURA INS 531
DISSENTING OPINION BY KELLY, J.

(Work loss consists of loss of income from work the

plaintiff would have performed during the first three years
after the date of the accident if the plaintiff had not been
injured. Work-loss benefits are computed at 85 percent of the
plaintiff’s loss of gross income, but they may not exceed the
sum of $3,898.00 per 30-day period from October 1, 2000 —
September 30, 2001, and, $4,027 per 30-day period from
October 1, 2001 — September 30, 2002, and, $4,070 per
30-day period from October 1, 2002 — September 30, 2002
[sic], nor may they be payable beyond three years after the
date of the accidental bodily injury.)
A. Answer: Y (yes or no)
B. If your answer is “yes,” what is the amount of work
loss owed to Hattie Moore (include only work loss not
already paid by defendant)?
Answer: $ 42 K.
755

* * *

QUESTION NO. 3: Was payment for any of the ex-

penses or losses to which the [sic] Hattie Moore was
entitled overdue?
(Payment for an expense or loss is overdue if it is not paid
within 30 days after the defendant receives reasonable proof
of the fact and the amount of the claim. An overdue claim
bears interest at the rate of 12 percent per annum from the
date the expense or loss becomes overdue.)
A. Answer: Y (yes or no)
B. If your answer is “yes,” what is the amount of
interest owed to Hattie Moore on overdue benefits (include
only interest not already paid by the defendant)?
Answer: $ 98.00

The jury verdict form provides an answer to the first

inquiry: was payment to which the plaintiff was entitled
overdue? The jury answered yes. Therefore, contrary to
the majority’s conclusion, the verdict establishes that
532 482 MICH 507 [Dec
DISSENTING OPINION BY KELLY, J.

this lawsuit was “an action for personal or property

protection insurance benefits which are overdue.”
Defendant is correct that over $11,000 in penalty
interest would have been the appropriate amount of
penalty interest had the jury found the entire $42,755
in benefits overdue. Again, however, I would decline to
speculate about the reasons for the size of the jury’s
award. As the Court of Appeals majority noted, plaintiff
filed an “applications of benefits” form with defendant
in December 2000 and plaintiff’s employer provided
employment information indicating plaintiff’s wage his-
tory. A reasonable jury may have found that those
proofs established that some portion of work loss ben-
efits was overdue.9
I acknowledge that the majority identifies a logical
explanation for the amount of the penalty interest
award. Nonetheless, the majority reaches this conclu-
sion by speculating about the jury’s rationale for award-
ing a dollar amount that neither party suggested was
correct. Unlike the majority, I decline to substitute my
judgment for that of the jury, which definitively found
that some payment to plaintiff was “overdue.”10
Finally, the majority’s citation of Beach v State Farm
Mut Automobile Ins Co11 as consistent with its decision
here is misplaced. In Beach, the jury awarded no
penalty interest to the plaintiff. The trial court right-
9
Oddly, the majority asserts that it is “uphold[ing]” the jury’s verdict.
But, contrary to the majority’s assertion, nowhere in the record is it
apparent that “the jury decided that only one week of work loss benefits
was overdue.” Ante at 519. Rather, the majority arrives at this conclusion
only after a series of speculative remarks about what the jury “may have
concluded” in arriving at its verdict.
10
As the Court of Appeals majority noted, “[t]he jury is the finder of
fact, and we will not second-guess it.” Moore, supra at 202.
11
Beach v State Farm Mut Automobile Ins Co, 216 Mich App 612; 550
NW2d 580 (1996).
2008] MOORE V SECURA INS 533
DISSENTING OPINION BY KELLY, J.

fully concluded that, given that penalty interest was not

awarded, the jury must have concluded that the no-
fault benefits at issue were not overdue. Also, attorney
fees could not be awarded.
Beach is easily distinguishable, as plaintiff noted in her
brief, because the Court in Beach had no need to speculate
about how or why the jury had awarded penalty interest.
The jury in Beach awarded no penalty interest, precluding
both a finding that benefits were overdue and an award of
attorney fees. In this case, conversely, the majority notes
the amount of penalty interest awarded, then makes a
series of guesses about the jury’s intent. I would adhere to
the clear answer on the jury verdict form: the jury
concluded that benefits were overdue.

B. UNREASONABLE REFUSAL OR DELAY

An insurer’s refusal to pay benefits is not unreason-

able when it is “the product of a legitimate question of
statutory construction, constitutional law, or a bona
fide factual uncertainty.”12 The trial court’s application
of that standard to the particular facts of the case is
reviewed for clear error.13 The majority concludes that
defendant’s refusal to pay benefits in this case was the
product of a legitimate factual uncertainty and there-
fore was reasonable. In the process, the majority over-
rules Liddell, supra. In Liddell, the Court of Appeals
upheld the trial court’s determination that an insurer
acted unreasonably because it did not attempt to con-
tact physicians with conflicting opinions or reconcile
contradictory medical reports.14
12
Gobler v Auto-Owners Ins Co, 428 Mich 51, 66; 404 NW2d 199 (1987).
13
Ross v Auto Club Group, 481 Mich 1, 7; 748 NW2d 552 (2008).
14
“The testimony . . . indicated that defendant did not attempt to
contact these physicians or in some other way attempt to ascertain the
true situation in face of the contradictory reports.” Liddell, supra at 651.
534 482 MICH 507 [Dec
DISSENTING OPINION BY KELLY, J.

I disagree with the majority and would not overrule

Liddell. Moreover, I cannot agree with the majority’s
conclusion that the trial court erred as a matter of law
in concluding that defendant’s refusal to pay benefits to
plaintiff was unreasonable.
In this case, I believe that it was certainly possible that
the trial judge determined that no bona fide factual
uncertainty existed. Ample evidence exists on the record
to support this conclusion. First, defendant did not even
attempt to reconcile the competing medical opinions of the
IME and plaintiff’s doctors. More importantly, defendant
did not provide plaintiff’s doctors with the results of the
IME that conflicted with their medical opinions.
The majority’s declaration that the “plain meaning”
of MCL 500.3142(2)15 and MCL 500.3148(1)16 provides a
15
MCL 500.3142 provides:

(1) Personal protection insurance benefits are payable as loss

accrues.

(2) Personal protection insurance benefits are overdue if not paid

within 30 days after an insurer receives reasonable proof of the fact
and of the amount of loss sustained. If reasonable proof is not
supplied as to the entire claim, the amount supported by reasonable
proof is overdue if not paid within 30 days after the proof is received
by the insurer. Any part of the remainder of the claim that is later
supported by reasonable proof is overdue if not paid within 30 days
after the proof is received by the insurer. For the purpose of calculat-
ing the extent to which benefits are overdue, payment shall be treated
as made on the date a draft or other valid instrument was placed in
the United States mail in a properly addressed, postpaid envelope, or,
if not so posted, on the date of delivery.

(3) An overdue payment bears simple interest at the rate of

12% per annum.
16
MCL 500.3148 provides, in relevant part:

(1) An attorney is entitled to a reasonable fee for advising and

representing a claimant in an action for personal or property protec-
2008] MOORE V SECURA INS 535
DISSENTING OPINION BY KELLY, J.

basis for overruling Liddell is unavailing. As is appar-

ent from the text of these statutes, they are entirely
silent on the circumstances here, where the parties
have conflicting medical opinions.17
Notably, the statute requires only “reasonable proof”
of the plaintiff’s claim and the amount of loss sustained
in order to make unpaid benefits overdue. Contrary to
the majority, I submit that, under the plain meaning of
“reasonable proof,” the medical opinion of plaintiff’s
doctor meets that standard.
A lay dictionary defines “reasonable” as “agreeable
to or in accord with reason; logical.”18 “Proof” is defined
as “1. evidence sufficient to establish a thing as true or
believable. . . . 5. (in judicial proceedings) evidence that
seems to substantiate or corroborate a charge or alle-
gation.”19
tion insurance benefits which are overdue. The attorney’s fee shall be
a charge against the insurer in addition to the benefits recovered, if
the court finds that the insurer unreasonably refused to pay the claim
or unreasonably delayed in making proper payment.
17
The majority rejects Liddell because “[n]othing in the plain
language of MCL 500.3148(1) . . . requires an insurer to reconcile
conflicting medical opinions.” Ante at 521. This argument makes little
sense given that no language in either MCL 500.3142 or 500.3148(1)
requires an insurer to do anything other than pay benefits within 30
days of proof from the claimant. Otherwise, the benefits are deemed
“overdue” and the insurer is liable for attorney fees under § 3148(1).
Aside from the term “reasonable proof,” nothing in either statute
discusses evidentiary burdens, offers any guidance for what consti-
tutes “reasonable proof,” or provides any edification on the issues
before us in this case. In fact, it is the majority that writes words into
the statute by requiring claimants to provide more than “reasonable
proof” when there is conflicting evidence regarding the cause of
claimant’s injuries. This outcome is startling given the majority’s
oft-repeated mantra that unambiguous statutes must be enforced as
written. See, e.g., Koontz v Ameritech Services, Inc, 466 Mich 304, 312;
645 NW2d 34 (2002).
18
Random House Webster’s College Dictionary (2001).
19
Id.
536 482 MICH 507 [Dec
DISSENTING OPINION BY KELLY, J.

In this case, it was not clearly erroneous for the trial

judge to conclude that the medical opinion of plaintiff’s
doctor was sufficiently “logical” to establish plaintiff’s
claim “as true or believable.” Therefore, the trial
judge’s finding that defendant’s refusal to pay benefits
was unreasonable under MCL 500.3142(2) does not
constitute clear error.
However, even if, after defendant’s doctor performed
the IME that yielded a conflicting conclusion, plaintiff’s
doctor’s opinion no longer sufficed as “reasonable proof”
of plaintiff’s claim, defendant may not immediately termi-
nate benefits. Rather, an insurer that does not attempt to
reconcile credible conflicting medical opinions before ter-
minating benefits acts unreasonably.20
At the least, defendant in this case should have
alerted plaintiff’s treating physicians of the new contra-
dictory opinion. This would have allowed plaintiff an
opportunity to submit additional proof to satisfy the
“reasonable proof” threshold in MCL 500.3142(2). In
my view, an insurer should not be able to create a bona
fide factual uncertainty by choosing to reject plaintiff’s
doctor’s credible opinion and rely solely on its doctor’s
“independent medical report.” To allow insurers to
terminate benefits on this basis alone contradicts the
requirement that the factual uncertainty be “bona
fide.”
20
I recognize that the majority criticizes this view for supposedly
“impos[ing] additional duties on insurers beyond those duties already
established in Michigan’s no-fault insurance statutes.” Ante at 521.
However, as stated previously, I believe this requirement is consistent
with the plain meaning of “reasonable proof.” Moreover, I note that in
practice, this requirement puts insurers on notice that immediately
terminating benefits in the face of contradictory medical information,
without any further action, is probably “unreasonable.” By contrast, the
majority’s rule does not impose such a requirement but leaves an insurer
to “act[] at its own risk in terminating benefits in the face of conflicting
medical reports.” Ante at 522. It seems to me that the majority’s analysis
leaves insurers twisting in the wind.
2008] MOORE V SECURA INS 537
DISSENTING OPINION BY KELLY, J.

I further conclude that, even if Liddell is overruled, I

would reach the same result because defendant “unrea-
sonably delayed in making proper payment” under
MCL 500.3148(1). I would so hold because defendant
failed to pay plaintiff monies it knew were owed consid-
ering the computer glitch that had delayed payment.
Defendant conceded that the payment covering De-
cember 2000 to March 2001 was overdue and that it
“admittedly owed” plaintiff 12 percent penalty interest
for that late payment under MCL 500.3142(3). Defen-
dant’s failure to pay penalty interest that it acknowl-
edged was owed to plaintiff constitutes an unreasonable
delay in making “proper payment” under MCL
500.3148(1). Nothing in the statutory language re-
stricts “proper payment” to overdue benefits.
The Legislature’s decision to allow attorney fee
awards where “the insurer unreasonably refused to pay
the claim or unreasonably delayed in making proper
payment” demonstrates a preference that plaintiffs
recover attorney fees in the following circumstances: (1)
if insurers unreasonably refuse to pay a claim at all, (2)
if they unreasonably delay in paying the claim, or (3) if
they unreasonably delay in paying the proper amount of
the claim. Here, because defendant conceded that the
penalty interest was owed on the overdue payment, it
was unreasonable for it not to pay plaintiff the proper
amount of that claim. The proper amount was the
overdue benefits plus the 12 percent penalty interest.
I therefore conclude that the trial judge did not
clearly err by holding that defendant’s refusal to pay
benefits was unreasonable.

C. ATTORNEY FEES

Because I believe that the trial court did not clearly

err by concluding that (1) some benefits were overdue
538 482 MICH 507 [Dec
DISSENTING OPINION BY KELLY, J.

and (2) defendant’s refusal to pay the claim was unrea-

sonable, I further conclude that the trial court did not
abuse its discretion in awarding plaintiff $79,415 in
attorney fees. I also see no merit in defendant’s argu-
ment that, even if plaintiff is entitled to attorney fees,
she may recover only the portion directly attributable to
securing overdue benefits.
In Cole v Detroit Automobile Inter-Ins Exch,21 the
defendant asserted that the trial court should have
based its claim for attorney fees on the portion of time
the attorney expended in pursuit of the unreasonably
denied claim. The Court of Appeals rejected this posi-
tion. Defendant here rejects Cole and relies on Proud-
foot v State Farm Mut Ins Co22 arguing that Proudfoot
supports its argument and effectively overruled Cole.
This Court in Proudfoot reversed an award of attor-
ney fees for benefits that were not yet overdue because
they had not yet been incurred. Defendant argues that
the Court of Appeals in this case incorrectly distin-
guished Proudfoot because the benefits at issue there
had not yet been incurred, whereas the benefits at issue
here were incurred.
However, as the Court of Appeals majority in this
case held, there is no support for defendant’s position in
the plain language of the statute. The critical inquiry
when determining whether attorney fees may be
awarded is whether the plaintiff is maintaining “an
action for personal or property protection insurance
benefits which are overdue.”23
21
Cole v Detroit Automobile Inter-Ins Exch, 137 Mich App 603, 613-614;
357 NW2d 898 (1984).
22
Proudfoot v State Farm Mut Ins Co, 469 Mich 476; 673 NW2d 739
(2003).
23
MCL 500.3148(1).
2008] MOORE V SECURA INS 539
DISSENTING OPINION BY KELLY, J.

If at least some of the benefits are found to be

overdue, the lawsuit constitutes “an action for personal
or property insurance benefits which are overdue”
under MCL 500.3148(1). Under these circumstances, a
plaintiff is entitled to an award of attorney fees. Here,
the trial judge’s award of the entire amount of attorney
fees requested by plaintiff was not outside the range of
principled outcomes because the jury found that ben-
efits were overdue. Thus, the trial judge did not abuse
his discretion.

D. PUBLIC POLICY AND THE NO-FAULT ACT

Finally, I note that my dissent is consistent with the

purpose of the no-fault act.24 The majority’s opinion, by
contrast, undermines the Legislature’s intent of provid-
ing injured parties adequate and prompt reparation
from insurers. I fear that the majority opinion provides
further opportunity for insurers to abruptly deny
claims by holding plaintiffs to a higher standard than
the “reasonable proof” requirement of MCL
500.3142(2).

CONCLUSION

I dissent from the majority’s decision to reverse the

trial court’s award of attorney fees to plaintiff. The
Court of Appeals decision should be affirmed.

WEAVER, J., concurred with KELLY, J.

24
See, e.g., Shavers v Attorney General, 402 Mich 554, 578-579; 267
NW2d 72 (1978), which observed that the “goal of the no-fault insurance
system [is] to provide victims of motor vehicle accidents assured, ad-
equate, and prompt reparation for certain economic losses.”
540 482 MICH 540 [Dec

PEOPLE v MILLER

Docket No. 135989. Argued October 2, 2008 (Calendar No. 7). Decided
December 30, 2008.
An Ottawa Circuit Court jury convicted Michael A. Miller of first-degree
criminal sexual conduct. Before sentencing, the defendant learned
that one of the jurors had concealed his prior convictions of offenses
similar to the defendant’s offense. The defendant moved for a new
trial. The court, Calvin L. Bosman, J., held an evidentiary hearing, at
which the juror testified, and denied the motion, finding no evidence
that the defendant had suffered actual prejudice by the presence of a
convicted felon on his jury. The Court of Appeals, DAVIS, P.J., and
MURPHY and WHITE, JJ., reversed the defendant’s conviction in an
unpublished opinion per curiam, issued January 17, 2008 (Docket
No. 273488), and remanded the case for a new trial because of juror
misconduct. The prosecution applied for leave to appeal, which the
Supreme Court granted. 481 Mich 851 (2008).
In an opinion by Justice MARKMAN, joined by Chief Justice
TAYLOR and Justices WEAVER, CORRIGAN, and YOUNG, the Supreme
Court held:
A violation of MCL 600.1307a(1)(e), which prohibits a con-
victed felon from serving on a jury, requires a new trial only if the
violation actually prejudiced the defendant.
1. While a criminal defendant has a constitutional right to be
tried by an impartial jury, the defendant does not have a consti-
tutional right to be tried by a jury free of convicted felons.
2. A juror’s failure to disclose information that the juror
should have disclosed is only prejudicial if it denied the defendant
an impartial jury. The burden is on the defendant to establish that
the juror was not impartial or at least that the juror’s impartiality
is in reasonable doubt.
3. The defendant’s only complaint about the juror is that he is
a convicted felon. The defendant offered no evidence that the juror
was not impartial. A juror’s mere status as a convicted felon is not
sufficient to rebut the presumption of impartiality. The trial court
did not clearly err by ruling that the defendant failed to demon-
2008] PEOPLE V MILLER 541

strate actual prejudice by the convicted felon’s presence on his jury

and did not abuse its discretion by denying the defendant’s motion
for a new trial.
4. The presence of a convicted felon on the defendant’s jury did
not constitute structural error, which is a fundamental constitu-
tional error that defies analysis under the harmless-error standard
of review.
Reversed and remanded to the Court of Appeals for consider-
ation of the defendant’s remaining issues.
Justice KELLY, dissenting, would affirm the Court of Appeals
because it correctly concluded that the presence of a convicted
felon on the defendant’s jury caused prejudice under MCL
600.1354(1), requiring a new trial under People v DeHaven, 321
Mich 327 (1948), and its progeny.
Justice CAVANAGH concurred with Justice KELLY’s result.

JURY — JUROR QUALIFICATIONS — CONVICTED FELONS SERVING AS JURORS —

IMPARTIAL JURORS — NEW TRIAL.
A violation of the statute prohibiting a convicted felon from serving
on a jury requires a new trial only if the violation actually
prejudiced the defendant; the juror’s failure to disclose a felony
conviction is only prejudicial if it denied the defendant an impar-
tial jury; the defendant has the burden of establishing that the
juror was not impartial or at least that the juror’s impartiality is in
reasonable doubt (MCL 600.1307a[1][e], 600.1354[1]).

Michael A. Cox, Attorney General, B. Eric Restuccia,

Solicitor General, Ronald J. Frantz, Prosecuting Attor-
ney, and Gregory J. Babbitt, Assistant Prosecuting At-
torney, for the people.

Gary L. Kohut for the defendant.

Amici Curiae:

Kym L. Worthy, Prosecuting Attorney, and Timothy

A. Baughman, Chief of Research, Training, and Ap-
peals, for the Wayne County Prosecutor’s Office.

Charles H. Koop, Jeffrey L. Sauter, and William W.

Worden for the Prosecuting Attorneys Association of
Michigan.
542 482 MICH 540 [Dec
OPINION OF THE COURT

MARKMAN, J. We granted leave to appeal to consider

whether defendant is entitled to a new trial on the basis
that a convicted felon served as a juror in his original
trial. The trial court held that defendant is not entitled
to a new trial because he failed to establish actual
prejudice. The Court of Appeals, on the other hand, held
that defendant is entitled to a new trial because the
presence of the convicted felon on his jury did prejudice
him. We do not believe that the trial court abused its
discretion in denying defendant’s motion for a new trial
under these circumstances because the trial court did
not clearly err in concluding that defendant failed to
establish that he was actually prejudiced. Accordingly,
we reverse the judgment of the Court of Appeals and
remand this case to the Court of Appeals for it to
address defendant’s remaining issues.

I. FACTS AND PROCEDURAL HISTORY

Following a jury trial, defendant was convicted of

first-degree criminal sexual conduct for forcing his then-
girlfriend’s seven-year-old daughter to perform fellatio on
him. Before sentencing, defendant learned that one of the
jurors had concealed the fact that he had been convicted of
assault with intent to commit criminal sexual conduct in
1991 and 1999 for having assaulted his sister and another
person to whom he referred as an “adopted child” who
was “more like a niece.” An evidentiary hearing was held.
The juror in question stated that he did not reveal his
prior convictions on his juror questionnaire because they
were old and he did not believe that they were even on his
record anymore.1 He further stated that because he had
pleaded guilty in both of his criminal cases, he had
1
The juror questionnaire asked, “Have you ever been a victim, witness,
plaintiff or defendant in a criminal or civil suit?” It also asked, “Have you
ever been convicted of a felony?” The juror answered “no” to both
questions.
2008] PEOPLE V MILLER 543
OPINION OF THE COURT

never before been through a jury selection process.

When asked whether he had been intentionally un-
truthful so that he could sit as a juror, he answered,
“no,” and he indicated that he “didn’t really want to sit
on the panel in the first place . . . .” The juror further
testified that he had tried to be fair during the trial and
that he never tried to improperly persuade the jury.
Following this testimony, the trial court denied defen-
dant’s motion for a new trial, ruling that there was no
evidence that defendant had suffered actual prejudice.2
The trial court explained that if the parties had known
about the juror’s past convictions, the prosecutor, not
the defendant, would have most likely been the one
seeking to excuse this juror. On appeal, the Court of
Appeals reversed defendant’s conviction and remanded
for a new trial on the basis of juror misconduct.3
2
During voir dire, defense counsel asked whether jurors had any family
member or friend who was a lawyer, a judge, or anyone involved in the
criminal justice system, such as a jail guard or prison guard. Because the
juror did not believe that he fit into any of those categories, he did not
answer the question affirmatively. During voir dire, the prosecutor asked
whether jurors “had personal dealings with criminal sexual conduct in
[their] immediate, close family to where—to the point where they think they
can’t be fair in this kind of trial.” The juror did not answer this question
affirmatively because he believed that he could be fair. The trial court
determined that although the juror answered the questions on the juror
questionnaire untruthfully, he did not answer any of the voir dire questions
untruthfully given the examples and the qualifiers that were used by the
attorneys in the potentially applicable questions. The trial court further
concluded that the juror was not attempting to be deceitful and that he did
not have any ulterior motives in answering the questions in the manner that
he did.
3
The Court of Appeals agreed with the trial court that

[w]hile the juror clearly misrepresented his status on the ques-

tionnaire with regard to criminal history, . . . the questions during
voir dire, as framed and qualified, did not technically require the
juror to divulge his past convictions, so it cannot be said that the
juror lied or made a misrepresentation during voir dire. [Unpub-
lished opinion per curiam, issued January 17, 2008 (Docket No.
2734888), p 2.]
544 482 MICH 540 [Dec
OPINION OF THE COURT

Unpublished opinion per curiam, issued January 17,

2008 (Docket No. 273488). We granted the prosecutor’s
application for leave to appeal and limited the issues to:
(1) whether the Court of Appeals erred in reversing the
defendant’s conviction and remanding this case to the circuit
court for a new trial pursuant to People v DeHaven, 321 Mich
327 (1948); (2) whether DeHaven was wrongly decided or has
been superseded by MCL 600.1354(1); (3) whether a criminal
defendant must establish actual prejudice pursuant to MCL
600.1354(1) where the challenged juror was excusable for
cause; (4) how the “actual prejudice” standard for purposes of
MCL 600.1354(1) should be defined; and (5) whether the
juror’s failure to disclose his status as a felon, which disquali-
fied him from serving on the jury, constituted structural error
pursuant to Neder v United States, 527 US 1 (1999). [481
Mich 851, 851-852 (2008).]

II. STANDARD OF REVIEW

A trial court’s factual findings are reviewed for clear

error. People v Cress, 468 Mich 678, 691; 664 NW2d 174
(2003). “Clear error exists if the reviewing court is left
with a definite and firm conviction that a mistake has
been made.” People v Johnson, 466 Mich 491, 497-498;
647 NW2d 480 (2002). A trial court’s decision to deny a
motion for a new trial is reviewed for an abuse of discre-
tion. Cress, 468 Mich at 691. An abuse of discretion occurs
only “when the trial court chooses an outcome falling
outside [the] principled range of outcomes.” People v
Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).

III. ANALYSIS

There are several statutory qualifications that a

person must satisfy in order to be eligible to serve as a
juror. MCL 600.1307a(1) provides:
To qualify as a juror a person shall:
2008] PEOPLE V MILLER 545
OPINION OF THE COURT

(a) Be a citizen of the United States, 18 years of age or

older, and a resident in the county for which the person is
selected, and in the case of a district court in districts of the
second and third class, be a resident of the district.
(b) Be able to communicate in the English language.
(c) Be physically and mentally able to carry out the
functions of a juror. Temporary inability shall not be
considered a disqualification.
(d) Not have served as a petit or grand juror in a court
of record during the preceding 12 months.
(e) Not have been convicted of a felony. [Emphasis
added.]

If a potential juror does not satisfy one of these statu-

tory qualifications, a party may challenge the potential
juror for cause. MCR 2.511(D)(1). There are also several
other grounds that would justify a challenge for cause.
MCR 2.511(D) provides, in pertinent part:
It is grounds for a challenge for cause that the person:
(1) is not qualified to be a juror;
(2) is biased for or against a party or attorney;
(3) shows a state of mind that will prevent the person
from rendering a just verdict, or has formed a positive
opinion on the facts of the case or on what the outcome
should be;
(4) has opinions or conscientious scruples that would
improperly influence the person’s verdict;
(5) has been subpoenaed as a witness in the action;
(6) has already sat on a trial of the same issue;
(7) has served as a grand or petit juror in a criminal case
based on the same transaction;
(8) is related within the ninth degree (civil law) of
consanguinity or affinity to one of the parties or attorneys;
(9) is the guardian, conservator, ward, landlord, tenant,
employer, employee, partner, or client of a party or attor-
ney;
546 482 MICH 540 [Dec
OPINION OF THE COURT

(10) is or has been a party adverse to the challenging

party or attorney in a civil action, or has complained of or
has been accused by that party in a criminal prosecution;
(11) has a financial interest other than that of a tax-
payer in the outcome of the action;
(12) is interested in a question like the issue to be tried.
[Emphasis added.]

MCR 6.412(D)(2) provides that if “the court finds that a

ground for challenging a juror for cause is present, the
court on its own initiative should, or on motion of either
party must, excuse the juror from the panel.” Similarly,
MCL 600.1337 states that “[w]hen the court finds that
a person in attendance at court as a juror is not
qualified to serve as a juror, or is exempt and claims an
exemption, the court shall discharge him or her from
further attendance and service as a juror.” Finally, MCL
600.1354(1) states, in pertinent part:
Failure to comply with the provisions of this chapter
shall not . . . affect the validity of a jury verdict unless the
party . . . claiming invalidity has made timely objection and
unless the party demonstrates actual prejudice to his cause
and unless the noncompliance is substantial. [Emphasis
added.]

In the instant case, because the juror in question was

a convicted felon, he was not statutorily qualified to
serve as a juror under MCL 600.1307a(1)(e). However,
as a result of the juror’s false answers on his juror
questionnaire, neither of the parties nor the trial court
had any knowledge of the juror’s felony convictions,
and, thus, the parties did not challenge the juror
pursuant to MCR 2.511(D)(1) and the trial court did not
discharge the juror pursuant to MCL 600.1337 and
MCR 6.412(D)(2). Accordingly, the issue here is whether
defendant is entitled to a new trial as a result of this
convicted felon having served on his jury.
2008] PEOPLE V MILLER 547
OPINION OF THE COURT

Although a criminal defendant has a constitutional

right to be tried by an impartial jury, US Const, Am VI;4
Const 1963, art 1, § 20,5 a criminal defendant does not
have a constitutional right to be tried by a jury free of
convicted felons.6 Instead, the right to a jury free of
4
“In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury . . . .” US Const, Am VI.
5
“In every criminal prosecution, the accused shall have the right to a
speedy and public trial by an impartial jury . . . .” Const 1963, art 1, § 20.
6
In United States v Uribe, 890 F2d 554, 562 (CA 1, 1989), the United
States Court of Appeals for the First Circuit held that a “statutory
violation—allowing a convicted felon to serve—did not implicate the
fundamental fairness of the trial or the defendants’ constitutional
rights.” “The fact that a juror technically should have been disqualified,
and was not, does not automatically require a new trial.” Id. Instead,
under such circumstances, the defendant is required to prove prejudice.
Id.; see also 47 Am Jur 2d, Jury, § 152, p 759 (“The Sixth Amendment
does not require automatic reversal of every conviction reached by a jury
that included a felon.”); Anno: Disqualification or exemption of juror for
conviction of, or prosecution for, criminal offense, 75 ALR5th 295, 310,
§ 3[b] (stating that several courts have “held that the constitutional right
to a fair and impartial jury was not violated by the . . . failure to exclude
convicted felons”); United States v Barker, 1999 US App LEXIS 9459, *3
(CA 4, 1999) (“Although convicted felons are statutorily excluded from
jury service, a criminal defendant does not have a corresponding consti-
tutional right to have convicted felons absolutely barred from serving on
his jury. The Sixth Amendment only requires that the jury be free from
bias.”) (citation omitted); Coleman v Calderon, 150 F3d 1105, 1117 (CA
9, 1998) (“The Sixth Amendment does not bar ex-felons from jury
service.”), overruled on other grounds 525 US 141 (1998); Coughlin v
Tailhook Ass’n, 112 F3d 1052, 1059 (CA 9, 1997) (“[T]he participation of
a felon-juror is not an automatic basis for a new trial.”); United States v
Boney, 314 US App DC 287, 289; 68 F3d 497 (1995) (“[T]he Sixth
Amendment does not absolutely bar felon-jurors. Rather, the appropriate
remedy for an allegation of juror bias is to hold an evidentiary hearing in
order to determine whether the juror’s failure to disclose his felon status
resulted in ‘actual bias’ to the defendant.”) (citation omitted); United
States v Humphreys, 982 F2d 254, 261 n 5 (CA 8, 1992) (“ ‘The Sixth
Amendment right to an impartial jury does not require an absolute bar
on felon-jurors.’ ”) (citation omitted). The fact that before MCL
600.1307a(1)(e) was amended in 2002, convicted felons who had already
548 482 MICH 540 [Dec
OPINION OF THE COURT

convicted felons is granted by statute. And by statute, a

violation of this “right” only requires a new trial if the
defendant demonstrates that such a violation “actu-
al[ly] prejudice[d]” him. MCL 600.1354(1).7
A juror’s failure to disclose information that the juror
should have disclosed is only prejudicial if it denied the
defendant an impartial jury.8 “[Defendants] are not
served their sentences were qualified to serve as jurors underscores that
the “right” to a jury free of convicted felons is not a constitutional right.
7
At oral argument before this Court, defense counsel argued that
defendant was denied his right to a 12-member jury, see Const 1963, art
1, § 20; MCR 6.410(A), because the convicted felon was not qualified to
serve as a juror. First, this issue is unpreserved, as defendant did not raise
it until oral argument before this Court. Second, defendant fails to
recognize that although MCL 600.1307a(1)(e) provides that a convicted
felon is not qualified to serve as a juror, MCL 600.1354(1) provides that
a violation of this rule “shall not . . . affect the validity of a jury verdict
unless the party . . . claiming the invalidity . . . demonstrates actual
prejudice . . . .” The Legislature was free to decide to either allow or not
allow convicted felons to serve as jurors. Accordingly, it was likewise free
to allow a jury verdict obtained from a jury that included a convicted felon
to not be automatically invalidated. That is, the Legislature was free to
provide, as it did, that a 12-member jury that includes a convicted felon
is nevertheless a 12-member jury. Furthermore, if the defendant were
correct that every conviction that was obtained from a jury with an
unqualified juror on it had to be reversed, all jury verdicts would be
second-guessed. That is, every jury verdict in the state of Michigan would
be contingent upon a court subsequently determining that none of the
jurors who sat on the jury was statutorily disqualified for one reason or
another.
8
Contrary to the dissent, we do “address how the ‘actual prejudice’
standard for purposes of [MCL 600.1354(1)] should be defined.” Post at
576. To repeat, a juror’s failure to disclose information that the juror
should have disclosed constitutes “actual prejudice” if it denied the
defendant an impartial jury. Although we recognize that it may be
difficult, although not impossible, for a defendant to establish that he was
“actually prejudiced,” the Legislature could not have been clearer that a
defendant is not entitled to a new trial unless the defendant “demon-
strates actual prejudice to his cause . . . .” MCL 600.1354(1). Unlike the
dissent, we are simply unwilling to disregard this clear directive from the
Legislature.
2008] PEOPLE V MILLER 549
OPINION OF THE COURT

entitled to a new trial unless the juror’s failure to

disclose denied [the defendants] their right to an im-
partial jury.” McDonough Power Equip, Inc v Green-
wood, 464 US 548, 549; 104 S Ct 845; 78 L Ed 2d 663
(1984). “ ‘The misconduct must be such as to reason-
ably indicate that a fair and impartial trial was not
had . . . .’ ” People v Nick, 360 Mich 219, 230; 103 NW2d
435 (1960), quoting 39 Am Jur, New Trial, § 70, p 85.9
In Froede v Holland Ladder & Mfg Co, 207 Mich App
127, 135; 523 NW2d 849 (1994), the Court of Appeals
held that actual prejudice was established because the
juror at issue had deliberately misrepresented her
criminal history on the juror questionnaire and had
previously hired an assassin to kill a drug informant
who had agreed to testify against the juror’s ex-
husband (a notorious drug kingpin). However, the
Court of Appeals “caution[ed] that our opinion is not to
stand for the proposition that prejudice will always be
found when a convicted felon makes a misrepresenta-
tion on a juror questionnaire or at voir dire.” Id. The
Court of Appeals clearly indicated that its bases for
finding actual prejudice were the juror’s deliberate
misrepresentation and the nature of the juror’s crimi-
nal history, i.e., she hired an assassin to kill a potential
witness. Id.10
9
When information that affects a juror’s qualifications to sit as a juror
is discovered after the trial, “most states . . . require a showing of juror
bias” before they will grant the defendant a new trial. Note, When jurors
lie: differing standards for new trials, 22 Am J Crim L 733, 737 (1995).
10
The instant case is obviously distinguishable from Froede. Unlike the
juror in Froede, the juror here did not deliberately misrepresent his
criminal history. Rather, the trial court stated, “I don’t find that he was
attempting to be deceitful or that he had any ulterior motive in
answering these questions that way,” and we have no reason to believe
that the trial court clearly erred in making such a finding. In addition,
unlike the juror in Froede, the juror here had never been convicted of any
crimes involving tampering with the administration of justice.
550 482 MICH 540 [Dec
OPINION OF THE COURT

In People v Carey, 110 Mich App 187, 193; 312 NW2d

205 (1981), the Court of Appeals held that the trial
court did not err in failing to declare a mistrial when it
was discovered shortly after deliberations had begun
that one of the jurors was a convicted felon, in part
because defendant did not demonstrate that he had
been actually prejudiced. In reaching this conclusion,
the Court of Appeals relied on the fact that the “juror
testified that his convictions would not affect his ability
to render an impartial verdict.” Id.11
As we explained earlier, defendants have a constitu-
tional right to an impartial jury. However, as Justice
COOLEY, writing for this Court, explained, jurors are
“presumed to be . . . impartial, until the contrary is
shown.” Holt v People, 13 Mich 224, 228 (1865). The
burden is on the defendant to establish that the juror
was not impartial or at least that the juror’s impartial-
ity is in reasonable doubt. Id.12
11
Likewise, in People v Johnson, 245 Mich App 243; 631 NW2d 1
(2001), the Court of Appeals affirmed the defendant’s domestic violence
conviction. The defendant was not entitled to a new trial even though one
of the jurors was a complainant in a domestic violence prosecution, in
part because the defendant had not demonstrated that he was actually
prejudiced. In the lead opinion, Judge O’CONNELL explained that, “[o]n
the basis of the juror’s assurances [that she could be fair and impartial],
and the trial court’s acceptance of her assurances, we see no reasonable
probability that the outcome of the case would have been different.” Id.
at 259-260 (opinion by O’CONNELL, J.).
12
The pertinent paragraph from Holt, 13 Mich at 228, states:

[I]t must be borne in mind that a person called as a juror is

presumed to be qualified and impartial, until the contrary is
shown. The challenging party takes upon himself the burden of
proving the disqualification, and he does not relieve himself of that
burden until he has made out a prima facie case, or, in criminal
cases, such a case, at the least, as leaves the juror’s impartiality in
reasonable doubt. It is not sufficient for him to prove facts, from
which vague inferences of bias or favor can be drawn, and then
2008] PEOPLE V MILLER 551
OPINION OF THE COURT

In Nick, the defendant argued that he was entitled to

a new trial because one of the jurors had failed to
disclose the fact that her father was an attorney prac-
ticing in the area and defense counsel had made some
reference to her father during the trial. This Court held
that the defendant was not entitled to a new trial
because he had not established that the juror was not
impartial. Nick, 360 Mich at 234. As this Court ex-
plained:
“[I]t is well established that not every instance of
misconduct in a juror will require a new trial. The general
principle underlying the cases is that the misconduct must
be such as to affect the impartiality of the jury . . . . A new
trial will not be granted for misconduct of the jury if no
substantial harm was done thereby to the party seeking a
new trial . . . . The misconduct must be such as to reason-
ably indicate that a fair and impartial trial was not
had . . . .” [Id. at 230, quoting 39 Am Jur, New Trial, § 70,
p 85.][13]

demand that his adversary shall be concluded unless he rebuts

those inferences by countervailing testimony.

Holt predated the enumeration of statutory disqualifications now con-

tained in MCL 600.1307a. The issue in Holt was whether the defendant
was denied his right to an impartial jury. Accordingly, Holt’s discussion of
juror “disqualification” was clearly not in reference to the statutory juror
disqualifications at issue in the instant case, but, rather, was in reference
to a juror’s ability to remain impartial. Contrary to the dissent, Holt very
clearly states that the burden is on the defendant to prove that the juror
was not impartial or at least that the juror’s impartiality is in reasonable
doubt. Id. Although the dissent concludes that “Holt requires less than
actual bias,” post at 576 n 45, it fails to explain how a defendant is to place
the juror’s impartiality in reasonable doubt without offering evidence in
support of that proposition.
13
Similarly, the United States Supreme Court has held:

[T]o obtain a new trial . . . , a party must first demonstrate that

a juror failed to answer honestly a material question on voir dire,
and then further show that a correct response would have pro-
552 482 MICH 540 [Dec
OPINION OF THE COURT

In the instant case, defendant’s only complaint about

the juror at issue in this case is that he is a convicted
felon.14 However, defendant has offered no evidence
that the juror was not impartial. In Holt, 13 Mich at
229, the Court concluded that the juror’s own admis-
sion that he had formed a partial opinion regarding the
defendant’s guilt before the trial even began was not
vided a valid basis for a challenge for cause. The motives for
concealing information may vary, but only those reasons that
affect a juror’s impartiality can truly be said to affect the fairness
of a trial. [McDonough, 464 US at 556 (second italics added).]

Although the federal standard requires a new trial if a “correct response

would have provided a valid basis for a challenge for cause,” this is
because of the fact that there is no federal rule listing specific grounds for
challenges for cause; instead, challenges for cause are only permitted
upon a showing that the juror is not capable of being impartial. Because
Michigan’s rule does list grounds for challenges for cause, and because
one of these grounds is that the juror is not qualified to sit as a juror
(which qualifications do not pertain to a juror’s capability of being
impartial), our standard to obtain a new trial does not focus on whether
a “correct response would have provided a valid basis for a challenge for
cause,” but, instead, focuses on whether the juror was impartial. As the
United States Supreme Court has explained, “[defendants] are not
entitled to a new trial unless the juror’s failure to disclose denied
[defendants] their right to an impartial jury.” Id. at 549.
14
Defendant argues that the juror was excusable for cause under MCR
2.511(D)(1) to (4), (6), (10), and (12). However, his basis for all of these
arguments is the juror’s status as a convicted felon. In defendant’s
motion for a new trial, defendant only argued that defendant was
excusable for cause under MCR 2.511(D)(1) and (12). Nevertheless, even
assuming that the defendant had properly preserved all the grounds that
he is now raising, we would still conclude that defendant is not entitled
to a new trial. That is, for the same reasons that we conclude that
defendant failed to establish that the juror was partial, defendant failed
to establish that the juror was “biased”; “show[ed] a state of mind that
[would] prevent [him] from rendering a just verdict”; had “formed a
positive opinion” about the case; had “opinions or conscientious scruples
that would improperly influence [his] verdict”; or was “interested.” MCR
2.511(D)(2) to (4) and (12). In addition, the juror had not “already sat on
a trial of the same issue” and had not “complained of or . . . been accused
by [defendant] in a criminal prosecution.” MCR 2.511(D)(6), (10).
2008] PEOPLE V MILLER 553
OPINION OF THE COURT

sufficient to rebut that juror’s impartiality.15 If even

such an admission is not sufficient to rebut the pre-
sumption of impartiality, we fail to see how a juror’s
mere status as a convicted felon can be considered
sufficient to rebut that presumption.
Defendant has not offered any evidence to demon-
strate that he was prejudiced by the convicted felon’s
presence on his jury.16 That is, defendant has offered no
15
The dissent fails to recognize that its conclusion that a defendant is
entitled to a new trial any time a juror had a “preconceived opinion or
feeling,” post at 577, is wholly at odds with this Court’s decision in Holt,
which held that the “ ‘mere statement of a juror, that he has formed an
opinion, is not sufficient to disqualify him.’ ” Holt, 13 Mich at 230
(citation omitted). Furthermore, the dissent’s statement that, because
the juror in this case committed similar crimes, he “must have had
preconceived notions about defendant” is nothing more than pure
speculation. Post at 578. Finally, although we commend the dissent for its
resort to a dictionary, it completely ignores the context of the word that
it is attempting to define. That is, the dissent concludes that a juror is
prejudiced if he or she had a “preconceived opinion or feeling.” Post at
577. However, MCL 600.1354(1) does not use the word “prejudice” in
terms of the juror’s “prejudice.” Instead, it uses this word in terms of the
defendant’s prejudice. MCL 600.1354(1) states that a defendant is not
entitled to a new trial unless the defendant demonstrates “actual
prejudice to his cause . . . .” In this context, it is clear that the most
applicable definition of “prejudice” is “damage or injury; detriment,”
Random House Webster’s College Dictionary (2001), which the dissent
quotes post at 577. A defendant is damaged or injured as a result of a
juror withholding relevant information only if that juror was not impar-
tial.
Moreover, to disagree, as we do, with the dissenting justice on the
appropriate definition of a term having multiple definitions—in this
instance “prejudice”—is hardly, as the dissent asserts, to manifest an
“unquestioning confidence” in our own “ability to decide which dictio-
nary definition of a word the Legislature intended.” Post at 578 n 48.
Rather, it is simply to manifest a belief that the dissenting justice is
wrong.
16
The dissent likewise does not direct us toward any evidence of
prejudice. Instead, it simply presumes prejudice from the fact that the
juror was statutorily disqualified. However, if such a presumption were
554 482 MICH 540 [Dec
OPINION OF THE COURT

evidence to establish that the juror was partial. The

juror testified that his status as a felon did not affect his
deliberations and that he did not share this information
with the other jurors or try to improperly persuade the
rest of the jurors in any way.17 There is simply no
evidence that this juror improperly affected any other
jurors. Furthermore, as the trial court explained, this
juror would likely have been more harmful to the
prosecutor than to defendant.18 Having been previously
convicted of similar offenses, the juror, if anything,
likely would have been sympathetic towards defen-
dant.19 For these reasons, we do not believe that the
permitted, MCL 600.1354(1) would be rendered meaningless. MCL
600.1354(1) specifically states that failure to comply with the statutory
qualifications does not require a new trial unless the defendant demon-
strates “actual prejudice.” Yet, under the dissent’s approach, failure to
comply with the statutory qualifications would always require a new
trial. Moreover, contrary to the dissent’s contention, “an appearance of
potential bias” is not “actual prejudice”; rather, it is, quite obviously, only
an appearance of prejudice. Post at 574 (emphasis added). MCL
600.1354(1), however, clearly requires the defendant to demonstrate
“actual prejudice.” (Emphasis added.) The dissent criticizes us for
equating “actual prejudice” and “actual bias.” However, it fails to explain
how a juror’s failure to disclose information that he or she should have
disclosed could actually prejudice a defendant if the juror was not actually
biased.
17
According to the trial court, the juror stated that “I had that
experience, but I can be essentially fair and objective; I can be fair to the
parties in this case.”
18
The dissent contends that defendant is entitled to a new trial
“irrespective of which way [the juror’s] bias is expected to cut . . . .” Post
at 580. However, this contention is clearly erroneous given that MCL
600.1354(1) expressly states that the defendant must demonstrate “ac-
tual prejudice to his cause . . . .” (Emphasis added.)
19
As the trial court explained:

I’m sure that . . . had [the juror] answered those questions

accurately in the questionnaire[,] the prosecutor would not have
permitted him to stay on the jury. . . . I have fairly equal confidence
that a defense attorney, knowing that [a] person . . . convicted of a
2008] PEOPLE V MILLER 555
OPINION OF THE COURT

trial court clearly erred in ruling that defendant had

not demonstrated that he was actually prejudiced by
the convicted felon’s presence on his jury.20
crime is called to sit as a juror, especially a trial of someone who is
accused of a similar type of crime, would not exercise a . . .
challenge. [The] [d]efense attorney in this case . . . does not
indicate to this Court that he would have exercised a . . . challenge
had he known.

Many commentators have indicated that one of the rationales behind

excluding convicted felons from juries is the belief that convicted felons are
biased against the government. See, e.g., Binnall, EG1900 . . . The number
they gave me when they revoked my citizenship: Perverse consequences of
ex-felon civic exile, 44 Willamette L R 667, 672 (2008) (“One such character
trait of concern to those advocating for felon exclusion from jury service is
‘that felons remain adversarial towards the government and will sympathize
unduly with any criminal defendant.’ ”) (citation omitted); Note, A jury of
one’s peers: Virginia’s restoration of rights process and its disproportionate
effect on the African American community, 46 Wm & Mary L R 2109, 2136
(2005) (“The state’s policy argument is based on the premise that a
convicted felon may be sympathetic toward a criminal defendant . . . .”);
Kalt, The exclusion of felons from jury service, 53 Am U L R 65, 74, 104
(2003) (“ ‘[A] person who has suffered the most severe form of condemna-
tion that can be inflicted by the state . . . might well harbor a continuing
resentment against “the system” that punished him and an equally un-
thinking bias in favor of the defendant on trial, who is seen as a fellow
underdog caught in its toils.’ . . . [A] felon’s ‘former conviction and impris-
onment [may] ordinarily incline him to compassion for others accused of
crime.’ In other words, a felon will be less willing, if not unwilling altogether,
to subject another person to the horrors of punishment that he has endured,
and may engage in nullification. He may also exhibit mistrust of police and
prosecutors, and give unduly short shrift to their testimony and argu-
ments.”) (citations omitted); Note, Invaluable tool vs. unfair use of private
information: Examining prosecutors’ use of jurors’ criminal history records
in voir dire, 56 Wash & Lee L R 1079, 1088-1089 (1999) (“A juror convicted
of a crime is likely to harbor animosity towards the government . . . . The
potential for this animosity to ripen into a bias against the government’s
case increases when the crime underlying the juror’s conviction is similar to
the crime for which the defendant stands charged.”).
20
To answer the dissent’s question, post at 580, of course convicted
felons can be challenged by defendants for bias. However, a juror’s mere
status as a convicted felon does not by itself establish bias, and, thus, the
challenging defendant will have to come forth with some actual argument
concerning such bias.
556 482 MICH 540 [Dec
OPINION OF THE COURT

In addition, the presence of a convicted felon on

defendant’s jury did not constitute structural error. A
structural error is a “fundamental constitutional error[]
that ‘def[ies] analysis by “harmless error” standards.’ ”
Neder v United States, 527 US 1, 7; 119 S Ct 1827; 144
L Ed 2d 35 (1999) (emphasis added; citations omitted).
Here, there was no constitutional error. As discussed
above, there is no constitutional right to have a jury free
of convicted felons. Therefore, that a convicted felon sat
as a juror on defendant’s jury did not constitute a
structural error.
The Court of Appeals in the instant case relied
heavily on People v DeHaven, 321 Mich 327; 32 NW2d
468 (1948), People v Daoust, 228 Mich App 1; 577 NW2d
179 (1998), People v Manser, 250 Mich App 21; 645
NW2d 65 (2002), and People v Crear, 242 Mich App 158;
618 NW2d 91 (2000), to conclude that defendant is
entitled to a new trial. However, none of those cases
involved the question that is at issue here: whether the
presence of a convicted felon on a defendant’s jury
requires a new trial. Furthermore, none of those cases
involved the application of MCL 600.1354(1) because
none involved “failure[s] to comply with the provisions
of [chapter 13 of the Revised Judicature Act, MCL
600.1300 et seq.],”21 and because DeHaven was decided
before MCL 600.1354(1) was even enacted.
In DeHaven, a case in which the defendant was
charged with and ultimately convicted of raping his
13-year-old stepdaughter, two related jurors failed to
disclose that one of their family members had been
convicted of raping his 13-year-old daughter. The trial
court found that the jurors had not been dishonest
during voir dire, that they had indicated that they could
21
The dissent altogether ignores that none of those cases involved the
application of MCL 600.1354(1).
2008] PEOPLE V MILLER 557
OPINION OF THE COURT

fairly and impartially sit as jurors, and that any preju-

dices the jurors did have would likely have benefitted
the defendant anyway. For these reasons, the trial court
denied the defendant’s motion for a new trial. This
Court reversed.
After indicating that the “right to be tried by an
impartial jury is a constitutional guaranty,” DeHaven
concluded:
The normal person revolts at the thought of a father or
stepfather raping a 13-year-old girl. We are of the opinion
that the relationship of these two jurors to one who had
committed a similar crime was such that it deprived them
of the capacity to act impartially. Defendant has the right
to a trial by an impartial jury. We cannot say that he had
such a trial. [DeHaven, 321 Mich at 334.]

As discussed earlier, DeHaven is distinguishable from

the instant case because the former did not involve a
juror who was a convicted felon and it did not involve
MCL 600.1354(1).22 In addition, it appears that De-
Haven reviewed de novo the question whether the two
jurors were biased, rather than for clear error. As
discussed above, an appellate court must review a trial
court’s factual findings for clear error, Cress, 468 Mich
at 691, and the appellate court should only reverse such
22
In DeHaven, the jurors had a family member who was a convicted
rapist and a family member who was a rape victim, while, in the instant
case, the juror was himself convicted of assault with the intent to commit
criminal sexual conduct. As DeHaven indicated, the “normal person
revolts at the thought of a father or stepfather raping a 13-year-old girl.”
DeHaven, 321 Mich at 334. Accordingly, in DeHaven, it is significantly
more likely that the jurors, if anything, would have been prejudiced
against the defendant because a 13-year-old girl in their family had
recently been a victim of such a revolting crime. On the other hand, in the
instant case, as discussed earlier, it is more likely that the juror, if
anything, would have been prejudiced in favor of the defendant because
the juror had himself been convicted of similar crimes, although obvi-
ously this is all speculative.
558 482 MICH 540 [Dec
OPINION OF THE COURT

findings if it is “left with a definite and firm conviction

that a mistake has been made.” Johnson, 466 Mich at
497-498. In DeHaven, the trial court determined that
the jurors were not biased, but, even if they were, such
bias would have benefitted the defendant. DeHaven,
321 Mich at 331. DeHaven, however, did not even
mention the trial court’s factual findings in its analysis,
and clearly reviewed the issue de novo. That is, De-
Haven concluded that the jurors were biased and that
they were biased against the defendant, without giving
any significance to the fact that the trial court, which
was obviously in the better position to determine
whether the jurors were biased and against which party,
had already concluded that the jurors were not biased,
but, if they were, they were biased in favor of the
defendant.
DeHaven also reviewed de novo, rather than for an
abuse of discretion, the issue whether defendant was
entitled to a new trial. As discussed earlier, a trial court’s
decision to deny a motion for a new trial must be reviewed
for an abuse of discretion. Cress, 468 Mich at 691. An
abuse of discretion occurs only “when the trial court
chooses an outcome falling outside [the] principled range
of outcomes.” Babcock, 469 Mich at 269. In DeHaven, the
trial court held that the defendant was not entitled to a
new trial. However, DeHaven, without giving any signifi-
cance at all to the trial court’s decision, held that the
defendant was entitled to a new trial. That is, DeHaven
clearly engaged in de novo review, rather than the abuse of
discretion review that it should have.23
23
We are simply perplexed by the dissent’s assertion that the standard
of review is “irrelevant.” Post at 573. An appellate court cannot even
begin to review a trial court’s decision without knowing what the
applicable standard of review is, and the fact that an appellate court has
employed a plainly inappropriate standard should, at the least, cause
future courts to hesitate before they rely on that prior decision. Further-
2008] PEOPLE V MILLER 559
OPINION OF THE COURT

Moreover, our “harmless error” jurisprudence has

evolved significantly since DeHaven was decided in
1948. As explained in People v Bell, 473 Mich 275, 294;
702 NW2d 128 (2005) (opinion by CORRIGAN, J.), “our
harmless error jurisprudence has evolved a great
deal . . . .” Errors generally no longer require automatic
reversal. Id., citing People v Carines, 460 Mich 750, 774;
597 NW2d 130 (1999). Instead, a preserved, nonconsti-
tutional error is not a ground for reversal unless the
defendant proves that it is “more probable than not
that the error was outcome determinative.” People v
Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999).
Even a preserved, constitutional error is generally not a
ground for reversal if the prosecutor proves that the
error was harmless beyond a reasonable doubt. People v
Anderson (After Remand), 446 Mich 392, 406; 521
NW2d 538 (1994).24 An unpreserved error is not a
ground for reversal unless the defendant can demon-
strate that the error was plain, that it affected the
outcome, and that it resulted in the conviction of an
actually innocent person or “ ‘ “seriously affect[ed] the
fairness, integrity or public reputation of judicial pro-
ceedings” . . . .’ ” Carines, 460 Mich at 763-764 (cita-
tions omitted).
With regard to the specific issue here, i.e., juror
misconduct, this Court has held that “a verdict in a
criminal case should not be upset because of alleged
misconduct on the part of members of the jury unless
‘substantial harm’ has resulted . . . .” Nick, 360 Mich at
230. “ ‘ “[A litigant] is entitled to a fair trial but not a
perfect one” for there are no perfect trials.’ ” McDon-
more, contrary to the dissent, an appellate court cannot effectively
immunize itself from criticism for failing to apply the correct standard of
review by simply not stating what standard of review is being applied.
24
As discussed earlier, a structural error that defies “harmless error”
analysis still requires automatic reversal. Anderson, 446 Mich at 405.
560 482 MICH 540 [Dec
OPINION OF THE COURT

ough, 464 US at 553 (citations omitted). “We have . . .

come a long way from the time when all trial error was
presumed prejudicial and reviewing courts were consid-
ered ‘ “citadels of technicality.” ’ ” Id. (citations omit-
ted). “The harmless-error rules . . . embody the prin-
ciple that courts should exercise judgment in preference
to the automatic reversal for ‘error’ and ignore errors
that do not affect the essential fairness of the trial.” Id.
DeHaven, however, made absolutely no mention of any
“harmless error” standard.
Finally, the crux of DeHaven’s holding was that a
defendant has a constitutional right to an impartial jury
and, because the jurors at issue in DeHaven lacked the
capacity to act impartially, the defendant was entitled to a
new trial. DeHaven, 321 Mich at 334. There is no question
that a criminal defendant has a constitutional right to be
tried by an impartial jury. US Const, Am VI; Const 1963,
art 1, § 20. However, the instant question is whether the
presence of a convicted felon on defendant’s jury denied
defendant his right to an impartial jury. For all the reasons
noted earlier, DeHaven is neither binding nor persuasive
precedent with regard to this question.25
In Daoust, the defendant was charged with two
counts of first-degree child abuse on the basis of injuries
that he inflicted on his girlfriend’s daughter. On the
morning of the second day of defendant’s trial, during a
break in the girlfriend’s testimony, one of the jurors
indicated that he may have attended junior high school
with the girlfriend. The trial court denied defendant’s
request to remove the juror, and the Court of Appeals
held that defendant was not entitled to a new trial. The
Court of Appeals held that
25
The dissent criticizes us for not overruling DeHaven. However, we do
not do so because we simply do not see it as being controlling with regard
to the issue here.
2008] PEOPLE V MILLER 561
OPINION OF THE COURT

when information potentially affecting a juror’s ability to

act impartially is discovered after the jury is sworn, the
defendant is entitled to relief only if he can establish (1)
that he was actually prejudiced by the presence of the juror
in question or (2) that the juror was properly excusable for
cause. [Daoust, 228 Mich App at 9 (emphasis added); see
also Crear, 242 Mich App at 167, which cited this two-part
test with approval.]

To the extent that in Daoust the Court of Appeals

broadly states in dicta that a new trial is always
required whenever a juror would have been excusable
for cause, Daoust is wrong and is overruled.26 As dis-
cussed earlier, the proper inquiry is whether the defen-
dant was denied his right to an impartial jury. If he was
not, there is no need for a new trial.

IV. CONCLUSION

The trial court did not clearly err in finding that

defendant failed to establish that he was actually
prejudiced by the presence of a convicted felon on his
jury, and, thus, the trial court did not abuse its
discretion when it denied defendant’s motion for a
new trial. Accordingly, we reverse the judgment of the
Court of Appeals and remand this case to the Court of
Appeals for it to address defendant’s remaining is-
sues.

TAYLOR, C.J., and WEAVER, CORRIGAN, and YOUNG, JJ.,

concurred with MARKMAN, J.
26
To the extent that Crear and Manser relied on Daoust for this
proposition, they are also wrong and overruled. The dissent contends
that there is no reason to overrule these decisions because they can be
“read harmoniously with § 1354(1) in that, if a juror is excusable for
cause and is left impaneled, actual prejudice results.” Post at 574.
However, as discussed in footnote 16 of this opinion, presuming prejudice
on the basis of a statutory disqualification would render MCL
600.1354(1) meaningless.
562 482 MICH 540 [Dec
DISSENTING OPINION BY KELLY, J.

KELLY, J. (dissenting). At issue in this case is whether

defendant is entitled to a new trial because a convicted
felon served as a juror in his original trial. The majority
concludes that the trial court correctly denied defen-
dant’s motion for a new trial. The court ruled that
defendant had failed to establish that he was actually
prejudiced, pursuant to MCL 600.1354(1), by the pres-
ence of a convicted felon on his jury. The majority finds
no clear error in this ruling. For the reasons set forth
below, I believe that the Court of Appeals properly
reversed the trial court and granted defendant a new
trial. Its opinion should be affirmed.

I. FACTS AND PROCEDURAL HISTORY

The Ottawa County Prosecutor’s Office charged de-

fendant with one count of first-degree criminal sexual
conduct (CSC I). The charge was based on defendant’s
alleged act of forcing his ex-girlfriend’s seven-year-old
daughter to perform fellatio on him. Following a two-
day jury trial, defendant was convicted as charged.
Defense counsel then learned that one of the deliberat-
ing jurors, Jesse Lara, was a registered sexual offender.
Defendant filed a motion for a new trial based on juror
misconduct. Lara had answered “No” to a question on
his juror questionnaire regarding whether he had ever
been a defendant in a criminal case.
The trial court held an evidentiary hearing. Lara
testified that he had been convicted of assault with
intent to commit sexual conduct involving penetration
seven years before and criminal sexual conduct 15 years
before. As a result of these convictions, he was required
to register with the Michigan Public Sexual Offender
Registry. Lara also testified that one of his victims was
his sister. He referred to the other as “an adopted child”
who was “more like a niece.” Lara further stated that
2008] PEOPLE V MILLER 563
DISSENTING OPINION BY KELLY, J.

he had completed and signed a juror questionnaire that

contained the following question: “Have you ever been
a victim, witness, plaintiff, or defendant in a criminal or
civil suit?” The questionnaire also asked whether he
had been convicted of a felony, misdemeanor, or traffic
violation. He answered “No” to both questions.
Lara justified his “No” answers by stating that he
had been untruthful “because that was a long time
ago.” He claimed that he thought his convictions would
remain on his record only “for maybe seven years.”
Essentially, he claimed that he believed his convictions
to be too old to matter. Lara acknowledged that he
never asked for clarification from the trial judge or
lawyers for either party about whether he was required
to divulge his prior criminal convictions. Accordingly, he
did not volunteer his convictions during voir dire.
Lara claimed that he tried to be fair during the trial.
He asserted that he never tried to persuade the jury in
any particular way because of his personal criminal
history. He said that he never disclosed his prior con-
victions during deliberations or the fact that he had
personal experience with how criminal cases are
handled.
The judge concluded that Lara was truthful during
the evidentiary hearing. The judge also determined
that, had Lara answered the questions on the juror
questionnaire truthfully, the prosecutor would have had
him excused from the jury. The judge concluded:
I have fairly equal confidence that a defense attorney,
knowing that the person . . . convicted of a crime is called to
sit as a juror, especially a trial of someone who is accused of
a similar type of crime, would not exercise a peremptory
challenge . . . . Defendant does not indicate to this court
that he would have exercised a peremptory challenge had
he known.
564 482 MICH 540 [Dec
DISSENTING OPINION BY KELLY, J.

There is no evidence presented at this hearing or

anything from any other source that Mr. Lara’s presence
on the jury resulted in actual prejudice to the defendant.

Accordingly, the trial court denied defendant’s motion

for a new trial.
The Court of Appeals reversed defendant’s convic-
tion and remanded for a new trial. The Court relied on
People v DeHaven.1 It determined that, because the
crimes committed by defendant and Lara were similar
in that they involved criminal sexual conduct, defen-
dant had not been afforded a fair and impartial jury.
Thus, defendant had been prejudiced within the mean-
ing of § 1354(1).
We granted leave to appeal2 to determine (1) whether
the Court of Appeals properly relied on DeHaven, (2)
whether DeHaven has been superseded by §1354(1), (3)
whether a criminal defendant must establish actual
prejudice pursuant to § 1354(1) if the challenged juror
was excusable for cause, (4) how the actual prejudice
standard for purposes of § 1354(1) should be defined,
and (5) whether Lara’s failure to disclose his status as a
convicted felon, which disqualified him from serving as
a juror, constitutes structural error pursuant to Neder v
United States.3

II. ANALYSIS

A. LEGAL BACKGROUND

Juror qualifications are set forth in several statutes

relevant to this case. MCL 600.1307a provides, in rel-
1
People v DeHaven, 321 Mich 327; 32 NW2d 468 (1948).
2
People v Miller, 481 Mich 851, 851-852 (2008).
3
Neder v United States, 527 US 1; 119 S Ct 1827; 144 L Ed 2d 35
(1999).
2008] PEOPLE V MILLER 565
DISSENTING OPINION BY KELLY, J.

evant part, that in order to qualify as a juror, a person

shall not have been convicted of a felony.4 Failure to
comply with this provision renders a potential juror
challengeable for cause.5 Furthermore, “[i]f . . . the
court finds that a ground for challenging a juror for
cause is present, the court on its own initiative should,
or on motion of either party must, excuse the juror from
4
MCL 600.1307a(1)(e).
5
MCR 2.511(D) provides:

It is grounds for a challenge for cause that the person:

(1) is not qualified to be a juror;

(2) is biased for or against a party or attorney;

(3) shows a state of mind that will prevent the person from
rendering a just verdict, or has formed a positive opinion on the
facts of the case or on what the outcome should be;

(4) has opinions or conscientious scruples that would improp-

erly influence the person’s verdict;

(5) has been subpoenaed as a witness in the action;

(6) has already sat on a trial of the same issue;

(7) has served as a grand or petit juror in a criminal case based

on the same transaction;

(8) is related within the ninth degree (civil law) of consanguin-

ity or affinity to one of the parties or attorneys;

(9) is the guardian, conservator, ward, landlord, tenant, em-

ployer, employee, partner, or client of a party or attorney;

(10) is or has been a party adverse to the challenging party or

attorney in a civil action, or has complained of or has been accused
by that party in a criminal prosecution;

(11) has a financial interest other than that of a taxpayer in the

outcome of the action;

(12) is interested in a question like the issue to be tried.

566 482 MICH 540 [Dec
DISSENTING OPINION BY KELLY, J.

the panel.”6 This rule was also codified in MCL

600.1337, which states, “When the court finds that a . . .
juror is not qualified to serve . . . , or is exempt and
claims an exemption, the court shall discharge him or
her from further attendance and service as a juror.”
Thus, the Legislature has made clear that those not
meeting the relevant qualifications for jury service are
not to be included on a jury. Finally, MCL 600.1354(1)
provides, in pertinent part:
Failure to comply with the provisions of this chapter
shall not . . . affect the validity of a jury verdict unless the
party . . . claiming invalidity has made timely objection and
unless the party demonstrates actual prejudice to his cause
and unless the noncompliance is substantial.

Michigan courts have examined the legal effect of

violations of these principles on numerous occasions.
The facts of the leading case on the issue, People v
DeHaven, are strikingly similar to those of the instant
case. In DeHaven, the defendant was charged with the
rape of his 13-year-old stepdaughter.7 The case was
submitted to a jury, which returned a guilty verdict.8
The defendant moved for a new trial, arguing that two
of the jurors had failed to disclose that a member of
their family had been imprisoned for a similar offense.9
The trial court denied the motion, ruling that the jurors
had not been prejudiced and that nothing indicated
that, if they had been prejudiced, it would likely have
benefited the defendant.10 The defendant appealed.
This Court held that the relationship of the two jurors
to a person who had committed a similar crime deprived
6
MCR 6.412(D)(2).
7
DeHaven, supra at 329.
8
Id.
9
Id.
10
Id. at 331.
2008] PEOPLE V MILLER 567
DISSENTING OPINION BY KELLY, J.

them of the capacity to act impartially.11 Because crimi-

nal defendants are guaranteed the right to a trial by an
impartial jury by both the United States12 and Michigan
constitutions,13 the Court unanimously reversed defen-
dant’s judgment of conviction.14
This Court revisited the issue of juror misconduct in
People v Hannum.15 The defendant in Hannum was
granted a new trial when a member of the jury failed to
disclose that he was a township police officer and special
county sheriff’s deputy. The Court, relying on DeHaven,
held that the defendant had been denied a fair trial by
an impartial jury because the lack of disclosure of the
pertinent fact “can hardly be thought to have insured
an impartial trial any more so than in DeHaven . . . .”16
Furthermore, the Court noted, “[w]ould any experi-
enced trial lawyer, or, for that matter, the public gener-
11
Id. at 334.
12
US Const, Am VI.
13
Const 1963, art 1, § 20.
14
DeHaven, supra at 335. The Court also noted:

Examination into the competency of a juror, when he is

challenged, is essentially a taking of such prospective juror’s
testimony to determine whether he has the statutory qualifica-
tions of a juror and is free from prejudice or interest, and to
ascertain whether it is wise and expedient to exercise the right of
peremptory challenge given to parties by the law. . . . He is not,
however, the judge of his own competency, impartiality, and
freedom from prejudice, in the sense that his testimony is to be
accepted as final and conclusive of the issue, and no statute can
clothe him with such judicial discretion and power. His competency
is left to the determination of the court or of triors, who are not
bound by his testimony but may rely on other evidence. [Id. at 332
(citation and quotation marks omitted).]
15
People v Hannum, 362 Mich 660; 107 NW2d 894 (1961).
16
Id. at 667. While I recognize that the juror in Hannum was not
statutorily disqualified, as is Lara, it is noteworthy that the Court held
that the defendant had been denied a fair trial.
568 482 MICH 540 [Dec
DISSENTING OPINION BY KELLY, J.

ally, feel differently as to the capacity of a local police

officer to sit as a juror and consider impartially the case
of a defendant charged with a crime committed in the
community? We think not.”17
The Court of Appeals addressed the same issue in
People v Manser.18 Manser involved a defendant charged
with CSC I and CSC II.19 The defendant was convicted
of both charges.20 On appeal, he argued that he was
deprived of his constitutional right to a fair and impar-
tial jury because the trial court had refused to remove a
juror. The juror had failed initially to disclose informa-
tion relevant to her ability to sit objectively in judgment
of the case.21 Specifically, the juror had failed to disclose
that she had engaged in “inappropriate behavior” with
a cousin when both were preteens.22
The Court of Appeals agreed that this failure to
disclose warranted a new trial. It held that, had the
juror disclosed during voir dire the inappropriate sexual
conduct with her cousin, grounds for dismissal for cause
would have been presented.23 Moreover, the Court noted
that, had the information been revealed during voir
dire, a peremptory challenge would have been used if a
challenge for cause had been denied.24 Finally, the Court
held that seating a juror who withheld information that
should have been revealed presents too great a risk that
the jury will not be impartial:
17
Id. at 666.
18
People v Manser, 250 Mich App 21; 645 NW2d 65 (2002).
19
Id. at 23-24.
20
Id. at 24.
21
Id.
22
Id. at 26.
23
Id. at 28.
24
Id.
2008] PEOPLE V MILLER 569
DISSENTING OPINION BY KELLY, J.

By failing to be forthcoming with her account of the

inappropriate sexual conduct she experienced with an older
relative, [the juror] subverted the efforts of the trial court
and defense counsel to assure that persons having that
kind of background were not seated as factfinders. This
resulted in at least an appearance of impropriety. . . .[25]

The Court concluded by stating that, under these

circumstances, the trial court should have granted
defendant some form of relief. It should have either
considered the propriety of proceeding with 11 jurors or
granted defendant a mistrial.26
In People v Daoust,27 the Court of Appeals addressed
whether the trial court deprived the defendant of a fair
trial by refusing to remove a juror during trial. At a
break in a witness’s testimony, one of the jurors indi-
cated to a bailiff that he may have attended the same
junior high school as the witness.28 The defendant
conceded that there were no circumstances justifying
the juror’s discharge for cause. However, he argued that
he would have exercised a peremptory challenge to
remove the juror had he known of the juror’s link to the
witness during voir dire.29 The trial court denied the
defendant’s request to remove the juror.30 On appeal,
the Court of Appeals held:
[W]hen information potentially affecting a juror’s abil-
ity to act impartially is discovered after the jury [has been]
sworn, the defendant is entitled to relief . . . if he can
establish (1) that he was actually prejudiced by the pres-

25
Id. at 30.
26
Id.
27
People v Daoust, 228 Mich App 1; 577 NW2d 179 (1998).
28
Id. at 6.
29
Id.
30
Id.
570 482 MICH 540 [Dec
DISSENTING OPINION BY KELLY, J.

ence of the juror in question or (2) that the juror was

properly excusable for cause.[31]

The defendant in Daoust did not argue that he had been

actually prejudiced or that the juror was removable for
cause. Hence, the Court held that he was not entitled to
relief.32

B. APPLICATION

The aforementioned cases demonstrate a longstand-

ing adherence to a principle expounded in both the
federal and state constitutions: criminal defendants are
entitled to a fair and impartial jury. I believe that
defendant was not afforded this right given the fact that
Lara was allowed to participate as a juror. Under
§ 1307a, to qualify as a juror, a person must not have
been convicted of a felony. Because Lara had been
convicted of CSC, he was admittedly not qualified to be
a juror. Defendant raised the issue of Lara’s disqualifi-
cation as soon as Lara’s convictions became known.
Pursuant to § 1354(1), noncompliance with juror
qualifications results in error requiring reversal only if
the noncompliance actually prejudices the defendant
and if the noncompliance is substantial. It remains
undisputed that Lara’s disqualification is a substantial
violation under § 1354(1). He failed to satisfy the crite-
ria necessary to serve as a juror set forth in MCR
2.511(D) and § 1307a. The question then becomes
whether defendant was actually prejudiced within the
meaning of § 1354(1).
DeHaven and its progeny are reasonably similar to
this case. In DeHaven, the defendant was convicted of
31
Id. at 9. The Court of Appeals reiterated this holding in People v
Crear, 242 Mich App 158, 167; 618 NW2d 91 (2000).
32
Daoust, supra at 9.
2008] PEOPLE V MILLER 571
DISSENTING OPINION BY KELLY, J.

rape for engaging in sexual conduct with his stepdaugh-

ter. During voir dire, the court asked prospective jurors
whether any had experience with a criminal case and
whether any of their relatives had been involved in a
similar case involving rape. All answered in the nega-
tive, including a juror who had a family member who
had been convicted of raping a minor. A second juror,
who was also related to the family member, also denied
any such prior experience. In reversing the conviction
and remanding for a new trial, this Court stated:
In the case at bar the jurors stated on voir dire exami-
nation that they could fairly and impartially sit as jurors in
the case; and that there was no other case that they had
heard about which would influence their verdict. . . . We
are of the opinion that the relationship of these two jurors
to one who had committed a similar crime was such that it
deprived them of the capacity to act impartially. Defendant
has the right to a trial by an impartial jury. We cannot say
that he had such a trial.[33]

Here, the crimes of which defendant is accused and

that Lara committed relate to CSC. Moreover, Lara
himself committed the crimes, not merely a relative, as
in DeHaven. The Court of Appeals in this case recog-
nized the similarity, holding:
Here, the crimes committed by . . . defendant and the
challenged juror were also similar in nature [like those in
DeHaven], relating to criminal sexual conduct. Moreover,
the challenged juror himself had committed the crimes, not
just a relative as in DeHaven. Further, while the challenged
juror proclaimed that he was fair, impartial, and listened to
the evidence, arguments, and instructions, the jurors in
DeHaven also claimed an ability to be fair and impartial,

33
DeHaven, supra at 334.
572 482 MICH 540 [Dec
DISSENTING OPINION BY KELLY, J.

yet the Supreme Court reversed. Accordingly, defendant

was not afforded a fair and impartial jury and was thus
prejudiced.[34]

Thus, the Court of Appeals explicitly determined that

defendant had been prejudiced. Given the obvious fac-
tual similarities between the two cases, I believe the
Court of Appeals properly relied on DeHaven. Likewise,
although the challenged jurors in DeHaven indicated
that they had been fair, impartial, and had listened to
the evidence, so too did Lara. However, as the DeHaven
Court found this effort to be insufficiently protective of
the defendant’s right to a fair and impartial jury, the
Court of Appeals properly granted defendant a new
trial.35
The majority struggles at length to distinguish De-
Haven and Daoust. It claims that DeHaven used a de
novo standard of review of the trial court’s finding that
the two jurors were biased, rather than the clear error
standard used today.36 According to the majority, the
DeHaven Court also used a de novo standard of review
34
People v Miller, unpublished opinion per curiam of the Court of
Appeals, issued January 17, 2008 (Docket No. 273488), at 3 (emphasis
added).
35
The majority claims that because DeHaven was decided before the
enactment of MCL 600.1354(1), it should not be considered controlling.
This argument is unpersuasive for several reasons. First, in Crear, supra
at 167, the Court of Appeals, relying on Daoust (which relied on
DeHaven) held that a defendant must establish (1) that he was actually
prejudiced by the presence of the juror in question or (2) that the juror
was properly excusable for cause. Crear was decided in light of § 1354(1)
in 2000 and implicitly acknowledged the import of § 1354(1) by recogniz-
ing that actual prejudice must be shown to warrant a new trial. Second,
Crear can be read harmoniously with § 1354(1) by incorporating the
failure to remove a juror excusable for cause into the parameters of actual
prejudice within the meaning of the statute. This is entirely possible,
especially given the lack of a definition for “actual prejudice” in
§ 1354(1).
36
Ante at 557.
2008] PEOPLE V MILLER 573
DISSENTING OPINION BY KELLY, J.

when deciding defendant was entitled to a new trial.37 At

the outset, the standard of review in DeHaven is irrel-
evant to the issue presently before the Court of whether
defendant was denied a fair and impartial trial in this
case.38 More importantly, however, wholly absent from
DeHaven is any language indicating which standard of
review was used. Therefore, the majority’s attempt to
distinguish DeHaven on this basis is unavailing.39
37
Ante at 558.
38
The majority mistakenly mingles the standard of review in this case
with the standard of review used in DeHaven. I agree that the proper
standard in this case is review of the trial court’s factual findings for clear
error. The decision on the motion for a new trial is reviewed for an abuse
of discretion. My agreement ends there.
It is not relevant what standard the DeHaven Court applied. DeHaven
is devoid of any indication of the deference (or lack thereof) paid to the
trial court’s decision in that case. Thus, it is mere conjecture for the
majority to state that the DeHaven Court improperly engaged in a review
de novo. Ante at 557-558.
39
The majority opinion seems to overrule DeHaven because it applied
the wrong standard of review. Yet, the majority avoids outright abroga-
tion of DeHaven by simply stating that DeHaven’s holding is neither
binding nor persuasive precedent.
Furthermore, the majority discards DeHaven’s reasoning because the
case was decided before the enactment of § 1354(1). Yet, the majority
relies on Froede v Holland Ladder & Mfg Co, 207 Mich App 127; 523
NW2d 849 (1994), and People v Carey, 110 Mich App 187; 312 NW2d 205
(1981), as support for its framing of “actual prejudice.” This reliance
makes little sense given that these cases also predate § 1354(1). See also
People v Graham, 84 Mich App 663; 270 NW2d 673 (1978), which held
that the party moving for a new trial must present proof of actual
prejudice. If not, it must satisfy the trial court that the moving party
would have successfully challenged for cause or otherwise dismissed the
juror had the truth been revealed before trial.
I conclude that DeHaven is precedential with respect to Lara’s lack of
qualification to serve as a juror and defendant’s entitlement to a new
trial. DeHaven should either be read as controlling or should be over-
ruled. If DeHaven is not applicable here, then it is not applicable
anywhere and should not be left hanging in the wind.
574 482 MICH 540 [Dec
DISSENTING OPINION BY KELLY, J.

With respect to Daoust, the majority makes no at-

tempt to distinguish the relevant facts. Yet it concludes
that, to the extent that Daoust holds that a new trial is
required whenever a juror would have been excusable
for cause, it is overruled.40 However, there is no need for
the majority to overrule Daoust. It could be read har-
moniously with § 1354(1) in that, if a juror is excusable
for cause and is left impaneled, actual prejudice results.
Furthermore, I believe Manser provides guidance
and demonstrates the soundness of the Court of Ap-
peals decision in this case. A juror in Manser indicated
after trial had begun that she had engaged in conduct
similar in nature to that alleged against the defendant.
Despite the defendant’s attempt to remove the juror,
the court continued the trial with the juror impaneled.
In reversing the defendant’s conviction, the Court
noted that the juror was removable for cause and thus
defendant was entitled to a new trial. Although the
Court did not use the word “prejudice,” its holding
essentially stated that the defendant was prejudiced by
a juror whose presence created the appearance of a
potential bias. Here, Lara would have been removable
for cause pursuant to MCR 2.511(D) had he disclosed
his previous convictions. Moreover, it is without ques-
tion that Lara’s presence created, at a minimum, an
appearance of potential bias.41 Therefore, the Court of
Appeals properly granted defendant’s motion for a new
trial.
40
Ante at 561.
41
The majority conflates “actual prejudice” with “actual bias.” Ante at
554 n 16. Section 1354(1) requires a showing of actual prejudice. This is
not the same as actual bias. Indeed, as recognized explicitly by Holt v
People, 13 Mich 224 (1865), and implicitly by DeHaven, Hannum,
Manser, Daoust, Crear, and Froede, the appearance of partiality or bias
creates a reasonable doubt sufficient to satisfy § 1354(1).
2008] PEOPLE V MILLER 575
DISSENTING OPINION BY KELLY, J.

Finally, the majority attempts to distinguish Froede v

Holland Ladder & Mfg Co.42 Froede involved a juror
who misrepresented her criminal history on the juror
questionnaire. The juror had hired an assassin to kill a
drug informant who had agreed to testify against the
juror’s ex-husband. In applying § 1354(1), the Court of
Appeals granted a new trial because it held that the
juror’s criminal conviction and misrepresentation of
her criminal background constituted actual prejudice.
The Court pointed out several noteworthy consider-
ations that bear on this case. First, Froede was a civil
case. Although MCR 6.412(D)(2) requires that a trial
court in a criminal case excuse a juror challenged for
cause under MCR 2.511(D), there is no similar require-
ment in civil matters. As the Court noted, “we find that
the existence of potential biases or prejudices of a juror
with a prior felony conviction is substantially lessened
in a civil case as opposed to a criminal case.”43 Thus,
explicit in the Court’s holding is its recognition that, in
criminal cases, the potential for a convicted felon’s bias
to reveal itself is higher than in civil cases. Second, the
Court noted that the conviction could “reflect on the
juror’s honesty, and, given the nature of the conviction,
th[e] juror may well have infected the jury’s delibera-
tions.”44
42
Froede, supra.
43
Id. at 133.
44
Id. at 134. In Froede, the trial court found that the juror had
deliberately misrepresented her criminal history. In this case, the trial
court found that Lara was not “attempting to be deceitful or that he had
any ulterior motive in answering the[] [jury] question[naire].” The
majority distinguishes Froede on this basis. While the trial court found
that Lara’s responses lacked deceit, Lara had no incentive to state that he
had been dishonest or deliberately misrepresented his criminal history.
Thus, absent an admission by Lara, the trial court had no basis on which
to determine whether Lara had been deceitful in answering the question-
naire.
576 482 MICH 540 [Dec
DISSENTING OPINION BY KELLY, J.

Based as it was on the principles expounded in

DeHaven, Hannum, Manser, Daoust, Crear, and Froede,
the Court of Appeals decision to grant defendant a new
trial was well reasoned. Moreover, the Court explicitly
held that defendant was prejudiced and thus satisfied
the statutory requirement set forth in § 1354(1).

III. RESPONSE TO THE MAJORITY

The majority opinion is deficient in several respects.

First, it fails to address how the “actual prejudice”
standard for purposes of § 1354(1) should be defined.45
45
The closest the majority comes to defining actual prejudice is its
assertion that juror misconduct is only prejudicial if it denies a defendant
an impartial jury. Ante at 548. Essentially, this is an outcome-
determinative standard in disguise. The majority further opines that
“[t]he burden is on the defendant to establish that the juror was not
impartial . . . .” Ante at 550, citing Holt v People, 13 Mich 224, 228 (1865).
However, Holt requires a defendant to show only that a juror’s impar-
tiality is in reasonable doubt. Id. at 227. Thus, contrary to the majority’s
analysis, Holt does not either explicitly or implicitly require a defendant
to prove actual bias by the disqualified juror. Yet actual bias is what the
majority requires in this case. Indeed, although the majority correctly
cites Holt, it fails to recognize that the reasonable doubt standard in Holt
requires less than actual bias to establish actual prejudice. Compare ante
at 550 with ante at 554 n 16. The majority, under the guise of statutory
interpretation, is effectively legislating from the bench by crafting the
words “actual bias” into § 1354(1), when no such language exists.
Furthermore, the majority’s analysis fails to provide guidance to
lower courts. Specifically, it leaves unresolved how a defendant is to prove
actual prejudice (or partiality as the majority would have it) absent an
admission by a juror that he possessed bias in rendering a verdict. The
majority also selectively cites Note, When jurors lie: Differing standards
for new trials, 22 Am J Crim L 733, 737 (1995), for the proposition that
some states require a showing of juror bias before they will grant a
defendant a new trial. Ante at 549 n 9. However, this article reveals that
the states employ different standards including (1) a showing of possible
bias, (2) a showing that the juror would have been struck for cause had
the undisclosed information been revealed on voir dire, and (3) a showing
of no bias at all. See TK Stanley, Inc v Cason, 614 So 2d 942, 949 (Miss,
1992); Gainesville Radiology Group v Hummel, 263 Ga 91, 93; 428 SE2d
2008] PEOPLE V MILLER 577
DISSENTING OPINION BY KELLY, J.

As stated earlier, § 1354(1) requires a finding of actual

prejudice resulting from an error in order for reversal to
be required. However, nowhere in that section is there
a definition of “actual prejudice.”
DeHaven and its progeny, including Daoust and
Crear, suggest that a defendant need only establish
(1) that he was either actually prejudiced by the
disqualified juror’s participation or (2) that the juror
was excusable for cause. This line of cases seems to
suggest that actual prejudice occurs automatically
upon a juror’s improper participation in a case. While
§ 1354(1) and caselaw may seem to offer different
interpretations of what a defendant must establish to
obtain a new trial, it is unquestionable that one must
show actual prejudice. However, because the statute
does not offer its own definition of “actual prejudice,”
a starting point for analysis is the dictionary defini-
tion of the words. “Actual” means “(1) existing in act,
fact, or reality; real” and “(2) existing now; present;
current.”46 “Prejudice” means:
(1) an unfavorable opinion or feeling formed before-
hand or without knowledge, thought, or reason. (2) any
preconceived opinion or feeling, either favorable or un-
favorable. (3) unreasonable feelings, opinions, or atti-
tudes, [especially] of a hostile nature, regarding a racial,
religious, or national group. (4) such attitudes consid-
ered collectively . . . . (5) damage or injury; detri-
ment . . . . (6) to affect with a prejudice.[47]

On the basis of these definitions, a defendant should

have to demonstrate an existing unfavorable opinion or
the presence of a preconceived opinion or feeling,
786 (1993); Wright v Bernstein, 23 NJ 284, 294-295; 129 A2d 19 (1957).
46
Random House Webster’s College Dictionary (2001).
47
Id. (emphasis added).
578 482 MICH 540 [Dec
DISSENTING OPINION BY KELLY, J.

whether favorable or unfavorable.48

Applying this requirement to this case, the Court of
Appeals should be affirmed. Lara must have had pre-
conceived notions about defendant, whether favorable
or unfavorable, merely because he had committed
crimes similar to those charged here.49 This reasoning is
also in line with DeHaven, Hannum, Manser, Crear,
and Daoust.
This result also makes practical sense, which high-
lights the second flaw in the majority opinion. Trial
courts must exclude unqualified jurors if facts are
present indicating that a juror is unfit for service.50 It
logically follows, then, that a defendant should not be
burdened with proving prejudice beyond what a court
must find to exclude an unqualified juror. To do so
would allow jurors to conceal relevant information and
then sit on juries anyway. In effect, this would create an
insurmountable standard for a defendant to overcome.
Promoting juror honesty is a laudable goal and one
that is essential to the selection of a fair and impartial
48
Contrary to the majority’s belief, this standard does not contradict
Holt. Holt requires that a defendant show only that a juror’s impartiality
is in reasonable doubt. This proof is merely a means to demonstrate
actual prejudice as required by § 1354(1). In any event, it is noteworthy
that the majority exhibits its usual unquestioning confidence in its ability
to decide which dictionary definition of a word the Legislature intended.
See, e.g., Liberty Hill Housing Corp v City of Livonia, 480 Mich 44, 57-58;
746 NW2d 282 (2008). Plucking one definition from a basket of many is
nothing less than speculation in the guise of omniscience.
49
I refute the majority’s contention that it is “pure speculation” to believe
that an ex-felon would have some sort of “prejudice,” as defined above, about
a defendant. Ante at 553 n 15. One convicted of the same crime charged
against a defendant would, at a minimum, be thoroughly familiar with the
nature of the crime(s) charged. The convict would know how such crimes are
committed, the emotions and feelings associated with the guilt accompany-
ing the criminal act(s), and criminal procedure in general.
50
MCR 6.412(D).
2008] PEOPLE V MILLER 579
DISSENTING OPINION BY KELLY, J.

jury in criminal cases. It is likewise essential to the fair

administration of justice. If the standard for obtaining a
new trial based on juror dishonesty is so high that it can
rarely be established, then there is no remedy for
defendants convicted by dishonest jurors.51 It is for this
reason that the majority opinion becomes unworkable
and manifestly unjust.
Furthermore, there is no indication that the Legisla-
ture intended such a heightened standard. Section
1354(1) merely indicates that “actual prejudice” must
be shown. If jurors such as Lara sit on juries despite
their lack of qualifications, evidentiary hearings will be
necessary to determine whether the disqualified juror
infected the entire jury. This would require the presence
of all deliberating jurors. Arguably, such a hearing
would border on impeachment of a verdict through
cross-examination of the jurors regarding their delib-
erations, a practice that is discouraged.52 The holding of
such evidentiary hearings would become extremely bur-
densome on the court system. Yet it remains unclear in
what other way a defendant could meet an actual
51
Section 1354(1) requires a showing of actual prejudice. However, the
majority opinion interprets actual prejudice so narrowly that prejudice
will be impossible to prove, absent a juror admitting actual bias. Ante at
552-554. This standard is too strict. Often, jurors will not admit bias,
especially after rendering a verdict, because they have a stake in
defending their decision. Furthermore, the majority opinion implies that
anytime a former juror states that he or she was unbiased, a defendant
cannot demonstrate prejudice. Presumed bias must be accepted in some
instances, and this is one such instance. In fact, the majority opinion’s
exceedingly narrow standard effectively renders the jury qualification
standards meaningless. Any verdict that was rendered with an unquali-
fied juror is unassailable because simply showing a lack of qualification(s)
is not enough to show prejudice. I believe that the juror qualifications set
forth in MCR 2.511(D) should be given more force.
52
Consumers Power Co v Allegan State Bank, 388 Mich 568; 202 NW2d
295 (1972).
580 482 MICH 540 [Dec
DISSENTING OPINION BY KELLY, J.

prejudice burden under the majority’s standard. Essen-

tially, overturning a verdict because of juror misconduct
becomes impossible.
Finally, the majority engages in a purely speculative
exercise in its attempt at labeling Lara and other
unqualified jurors who have been convicted of felonies
as favorable to criminal defendants. Without question,
criminal defendants are entitled to a fair trial, which
includes the impaneling of an impartial jury. The seat-
ing of a biased juror, irrespective of which way his or her
bias is expected to cut, is an error in the eyes of the law.
This is evidenced by statutes and court rules that seek
to weed out such errors.53 Indeed, assuming—or guess-
ing, as the majority does—who benefits from the bias is
folly. At some point, a juror’s past experience must lead
to a presumption of bias because of the juror’s inherent
knowledge from experience. In this case, this presump-
tion exists because Lara’s past experiences are so simi-
lar to the current defendant’s alleged crimes.
The majority wrongly speculates that convicted fel-
ons on juries will help defendants. Moreover, it should
not engage in any exercise that could harm the admin-
istration of justice. Essentially, the majority opines that
a convicted felon’s bias is acceptable because it is
assumed that most felons will be sympathetic toward
defendants. Is it now the law that all felons are assumed
to be sympathetic to defendants and thus they can
never be challenged by defendants for bias? Moreover,
are felons’ biases always assumed against prosecutors,
such that if the parties’ positions in this case were
reversed, the prosecutor would have a strong claim of
53
The majority ignores the purpose of MCR 2.511(D) and MCL
600.1337. These rules were set forth in an attempt to eliminate potential
bias from juries.
2008] PEOPLE V MILLER 581
DISSENTING OPINION BY KELLY, J.

bias? Are felons so homogenous that such a broad

generalization is worthy of judicial codification? I think
not.

IV. CONCLUSION

The Court of Appeals properly held that defendant

was entitled to a new trial. In doing so, the Court
properly relied on DeHaven and its progeny for the
proposition that a convicted felon serving on a jury
constitutes prejudice within the meaning of § 1354(1).
Accordingly, I would affirm the Court of Appeals and
remand this case to the trial court for a new trial.

CAVANAGH, J. I concur with Justice KELLY’s result.

ACTIONS ON APPLICATIONS
 ACTIONS ON APPLICATIONS 851

ACTIONS ON APPLICATIONS FOR

LEAVE TO APPEAL FROM THE
COURT OF APPEALS
Summary Dispositions July 18, 2008:

PEOPLE v BOBBY MARTIN, Nos. 132168, 132169, and 132170. Pursuant

to MCR 7.302(G)(1), in lieu of granting leave to appeal, we affirm the
Court of Appeals decision holding that the trial court erred when it
instructed the jury that it could convict defendants of keeping a house of
prostitution as a necessarily included lesser offense of racketeering. This
Court has made clear that a harmless error analysis is applicable to
instructional errors involving necessarily included lesser offenses. People
v Cornell, 466 Mich 335, 361-362 (2002), citing People v Mosko, 441 Mich
496, 503 (1992). Because the Court of Appeals failed to consider whether
the error was harmless, we do so.
Preserved, nonconstitutional error is not grounds for reversal unless
it is more probable than not that the error was outcome determinative.
Cornell, supra at 363-364. We conclude that the error was not harmless.
See People v Hawthorne, 474 Mich 174 (2006); People v Silver, 466 Mich
386 (2002). It is not likely that defendants would have been convicted of
keeping a house of prostitution had the trial court not erroneously
instructed the jury that it could be considered as a lesser included offense
of racketeering. Reported below: 271 Mich App 280.
KELLY, J. (concurring). The Court of Appeals correctly held that the
trial court erred by instructing the jury that it could convict defendants
of keeping a house of prostitution. If a harmless error analysis applies in
this situation, I agree that the instructional error was not harmless.
I write separately because I believe that the error was constitutional
in nature. When an instructional error violates a defendant’s right to due
process, it may rise to the level of a constitutional error.1 “A fair trial is
a right guaranteed by the Due Process Clause of the Fourteenth Amend-
ment to the United States Constitution.”2
To prove racketeering, the prosecution must prove that a defendant
committed at least two of the enumerated predicate offenses.3 Here, the
amended information identified keeping a house of prostitution and
accepting the earnings of a prostitute as the predicate offenses. Thus, to
convict defendants of racketeering, the prosecution had to prove that
defendants were guilty of both predicate offenses. Accordingly, defen-

1
See People v Cornell, 466 Mich 335, 372 (2002) (KELLY, J., dissenting),
citing People v Carines, 460 Mich 750, 761 (1999), and United States v
Gaudin, 515 US 506 (1995).
2
People v Ramsey, 422 Mich 500, 510 (1985), citing Drope v Missouri,
420 US 162 (1975).
3
MCL 750.159f.
852 482 MICHIGAN REPORTS
dants could have conceded that they kept a house of prostitution and still
not have been convicted of racketeering.
Although defendants did not make that concession, they may not have
applied their strongest efforts to prevail on that issue, judging it
unnecessary. However, their strategy might have been quite different if,
before the jury was instructed, they had had notice that they could have
been convicted of keeping a house of prostitution.
I conclude that defendants did not receive a fair trial because they did
not have notice that they could be separately convicted of the predicate
offense. This deprivation of notice and of a fair trial appears to be a due
process violation that rendered the instructional error constitutional in
nature.4
MARKMAN, J. (concurring). Under MCL 768.32, a defendant can only be
convicted of an offense that is charged in the indictment or of a
necessarily included lesser offense. People v Cornell, 466 Mich 335,
353-358 (2002).1 The indictment here did not charge defendants with
keeping a house of prostitution; it only charged defendants with rack-
eteering. Moreover, keeping a house of prostitution is not a necessarily
included lesser offense of racketeering because one can commit rack-
eteering without keeping a house of prostitution. Id. at 361 (defining
necessarily included lesser offense as one in which it is “impossible to
commit the greater offense without first committing the [necessarily
included lesser] offense”).

4
The dissent points out that MCR 6.112(H) permits amendment of the
information after trial. It suggests that what happened in this case does
not warrant constitutional scrutiny if amendment of the information
after trial does not warrant constitutional scrutiny. MCR 6.112(H)
prohibits amendment of an information when the “amendment would
unfairly surprise or prejudice the defendant.” This clause protects
against due process violations. If an amendment were permitted that
unfairly surprised or prejudiced a defendant, the error might also be
constitutional in nature. In that case, constitutional scrutiny would apply
to the amendment, just as it should apply to the instruction in this case.
The dissent appears to agree that error in the amendment of an
information and instructional error can rise to the level of constitutional
error. Our disagreement is over whether the instructional error in this
case unfairly surprised or prejudiced defendants. I conclude that it did.
An eleventh hour amendment to the information that adds an offense
and a jury instruction that adds an offense have this in common: both
occur after the proofs are in, when it is too late for the accused to change
his or her trial strategy and produce additional defensive evidence. In this
and in most cases the result is prejudice or unfair surprise.
1
Contrary to the dissent’s contention, MCL 768.32 does not say
anything about “fair notice of the charges.” Post at 856 (emphasis
omitted).
 ACTIONS ON APPLICATIONS 853
The original indictment here listed three predicate offenses. The
prosecutor was required to prove two of these in order to convict
defendants of racketeering. Therefore, defendants could have conceded
that they had kept a house of prostitution and still not have been
convicted of racketeering. Before trial, the prosecutor amended the
information to list only two predicate offenses. However, defendants
again could have conceded that they had kept a house of prostitution and
not have been convicted of racketeering; the prosecutor still would have
been required to prove that defendants committed both of the predicate
offenses. Therefore, defendants were not placed on notice that they had
to argue that they had not kept a house of prostitution in order to avoid
conviction. Indeed, given that the trial court denied the prosecutor’s
motion to amend the information to directly charge the predicate
offenses because the motion was filed after the deadline for the filing of
motions had passed, defendants were placed on notice that they were not
facing separate charges for the predicate offenses.2
For these reasons, I concur in the majority’s order affirming the Court
of Appeals. I also concur in the majority’s conclusion that, if harmless-
error analysis is applicable, the error here was not harmless. However, I
question whether harmless-error analysis is even applicable here. The
majority cites two cases in support of this proposition, Cornell, supra at
361-362, and People v Mosko, 441 Mich 496, 503 (1992). However, the
error in those cases was the failure to instruct on a necessarily included
lesser offense; in this case, the error was to affirmatively instruct on an
offense that was not a necessarily included lesser offense. That is, in both
Cornell and Mosko, the trial court failed to instruct the jury that it could
convict the defendant of a necessarily included lesser offense, while here
the court instructed the jury that it could convict defendants of an offense
that was not a necessarily included lesser offense.
Harmless-error analysis is applicable to the former error because it is
possible that the error was harmless, i.e., even if instructed on the
necessarily included lesser offense, the jury might not have convicted the
defendant of that offense. However, harmless-error analysis is not
applicable to the latter error because I do not believe a situation can be
conceived in which such an error would ever be harmless.3 That is,

2
The dissent repeatedly relies on the fact that “MCR 6.112(H) provides
that an information may be amended before, during, or after trial.” Post
at 856. However, the fact is that the trial court here denied the
prosecutor’s motion to amend the information because that motion was
not filed on time and the prosecutor never appealed that ruling. There-
fore, the issue remains whether defendants can be convicted of an offense
that they were never charged with and that does not constitute a
necessarily included lesser offense.
3
Given that I believe that harmless-error analysis is inapplicable here,
and that even if it was, the error here was clearly not harmless, I find it
unnecessary to address whether the error here was constitutional or
nonconstitutional.
854 482 MICHIGAN REPORTS
whenever the trial court instructs on an offense that is not a necessarily
included lesser offense and the jury convicts the defendant of that
offense, the error would obviously not be harmless because the jury
convicted the defendant of an offense that it should not have even been
allowed to consider.4
YOUNG, J. I join the statement of Justice MARKMAN.
WEAVER, J. (dissenting). I dissent from the order holding that the
alleged error is necessarily harmful and I join Justice CORRIGAN’s state-
ment. I would grant the Attorney General’s application for leave to
appeal or remand this case for harmless-error analysis.
CORRIGAN, J. (dissenting). I would grant the Attorney General’s
application for leave to appeal or remand this case for harmless-error
analysis. The Court of Appeals reversed defendants’ convictions of
maintaining a house of ill fame on the ground that it was not a
necessarily included lesser offense of racketeering. People v Martin, 271
Mich App 280 (2006). Determining whether the offense is necessarily
included or separate and distinct, however, is essentially a meaningless
exercise in the special circumstances of racketeering prosecutions. The
charge of which defendants were convicted was specifically laid out in the
information as a predicate offense of racketeering. Defendants had
explicit notice of the offense of which they were ultimately convicted in
the charging document. They vigorously defended against it. Accordingly,
any error is harmless.
Racketeering is a unique crime. In order to establish the substantive
offense of racketeering, the prosecution must prove at least two specifi-
cally enumerated separate offenses,1 often referred to as “predicate
offenses.” Proof of these predicate offenses establishes the “pattern of
racketeering activity” necessary for a racketeering conviction.2 When
charging a defendant with racketeering, the prosecution must provide
the defendant with notice of the specific predicate offenses underlying
the racketeering charge.

4
The dissent contends that the error was harmless because the
prosecutor could have charged and may still charge defendants with
keeping a house of prostitution. Post at 856 n 7. The error here is that
defendants were convicted of a crime without notice that they were facing
charges on that crime. The fact that the prosecutor could have given
them notice or that the prosecutor can give them notice in a future case
does not alter the fact that they did not have notice in this case.
Defendants simply cannot stand convicted of an offense with which they
were not charged and that does not constitute a necessarily included
lesser offense.
1
MCL 750.159f.
2
MCL 750.159i provides that a “person employed by, or associated
with, an enterprise shall not knowingly conduct or participate in the
affairs of the enterprise directly or indirectly through a pattern of
racketeering activity.”
 ACTIONS ON APPLICATIONS 855
Here, defendants worked at a topless bar in Belleville. The prosecu-
tion charged defendants with racketeering under MCL 750.159i, alleging
that dancers at the bar engaged in prostitution in a VIP room and then
turned over their earnings to defendants and other managerial employ-
ees. The basis of the racketeering charge rested on the predicate offenses
of maintaining a house of ill fame, MCL 750.452, and knowingly
accepting or receiving the earnings of a prostitute, MCL 750.457. Spe-
cifically, the amended information stated:

1) On or about various dates from January 1, 1997 through

October 25, 2002, in Van Buren Township, Wayne County, Michi-
gan, co-defendants did commit and/or conspired to commit the
following offense for financial gain, to wit: did keep, maintain or
operate, or aid and abet in keeping, maintaining or operating a
house of ill fame, bawdy house or place at 50778 Michigan Avenue,
Van Buren Township, resorted to for the purpose of prostitution or
lewdness; contrary to MCL 750.452; MSA 28.707.
2) On or about various dates from 1997 to October 25, 2002, in
Van Buren Township, Wayne County, Michigan, co-defendants did
commit and/or aid or abet in the commission of the following
offense for financial gain, to wit: did knowingly accept, receive, buy
or appropriate money or other valuable things without consider-
ation from the earnings of a prostitute, contrary to MCL 750.457;
MSA 28.712.[3]

Before trial, the prosecution moved to amend the information to

charge these predicate offenses as separate counts.4 The trial court
refused to hear the motion because it was filed after the motion cutoff
date in the court’s scheduling order. At the close of proofs, the prosecu-
tion sought a jury instruction on the predicate offenses as necessarily
included lesser offenses. The trial court agreed to so instruct, holding
that the predicate offenses were necessarily included lesser offenses of
racketeering. In their defenses and again in closing arguments, defen-
dants specifically challenged the elements of each of the two offenses
charged as predicate offenses.
The jury acquitted defendants of racketeering, but convicted them of
one predicate offense: maintaining a house of ill fame. The Court of
Appeals reversed defendants’ convictions on the ground that maintaining
a house of ill fame was not a necessarily included lesser offense of
racketeering. The Attorney General now seeks review in this Court.

3
Amended information, dated June 7, 2004.
4
MCL 750.159j(11) provides the prosecution with the ability to charge
and obtain a conviction for both racketeering and the underlying predi-
cate offenses. It states that “[c]riminal penalties under this section are
not mutually exclusive and do not preclude the application of any other
criminal or civil remedy under this section or any other provision of law.”
856 482 MICHIGAN REPORTS
Regardless of whether the conviction offense is necessarily included in
the charged offense, fundamentally, any error on this point is harmless.
No due process notice problem arises here because the information
afforded specific notice of the offense of which defendants were convicted.
Nor is there a multiple punishments problem—defendants were acquit-
ted of all charges but one.
The Court of Appeals analysis overlooked that MCL 768.325 protects
a defendant from having to defend against a charge without adequate
notice. That is, the key issue is whether defendants received fair notice of
the charges.6 Here, because the information specifically identified the
predicate offenses, defendants were notified of the crimes constituting
the offense of racketeering.
Moreover, a perverse result arises from the Court of Appeals deter-
minations that (1) the trial court erred by instructing on maintaining a
house of ill fame but (2) the prosecution could now charge the predicate
offense and begin the case anew.7 This resolution compels a new trial even
though defendants received specific notice of the predicate offenses.
Finally, MCR 6.112(H) provides that an information may be amended
before, during, or after trial “unless the proposed amendment would
unfairly surprise or prejudice the defendant.” In People v McGee, the Court
of Appeals held that a trial court may amend the information to add a charge
on the day of trial even where no preliminary examination was held because
the defendant suffered no prejudice.8

5
MCL 768.32(1) provides:
Except as provided in subsection (2), upon an indictment for an
offense, consisting of different degrees, as prescribed in this chapter,
the jury, or the judge in a trial without a jury, may find the accused
not guilty of the offense in the degree charged in the indictment and
may find the accused person guilty of a degree of that offense inferior
to that charged in the indictment, or of an attempt to commit that
offense.
6
Justice MARKMAN contends that MCL 768.32(1) “does not say anything
about ‘fair notice of the charges.’ ” While he is correct that the statute does
not contain an explicit statement regarding its purpose, it is clear that the
Legislature intended to allow judges and juries to find a defendant guilty of
an offense that was not charged as long as the defendant had notice that he
would have to defend against the elements of the offense of which he was
ultimately convicted. Here, defendants had such notice through the
amended information listing the predicate acts that were the basis of the
racketeering charges.
7
Justice MARKMAN overlooks this fact when concluding that any error in
instructing that the predicate offenses are necessarily included lesser
offenses could never be harmless. As discussed earlier, a prosecutor may
charge a defendant for both the substantive offense of racketeering and the
predicate offenses. While the prosecution failed to do so here, because it
could have done so initially and may still do so, makes the error alleged here
all the more harmless.
8
People v McGee, 258 Mich App 683, 687 (2003).
 ACTIONS ON APPLICATIONS 857
Here, the information listed the predicate offenses, and the jury
instructions would be identical if the offenses were amended charges or
necessarily included lesser offenses. Not only were defendants on notice
that they needed to defend against the elements of the predicate offenses,
they in fact vigorously contested those offenses at trial. Defendants did
not choose to challenge only one of the predicate offenses in order to
defeat the racketeering charge. The record reflects that defendants’
theory of defense was that they neither maintained a house of ill fame nor
knowingly accepted money from a prostitute.
Justices MARKMAN and KELLY contend that although defendants had
notice that the predicate offenses were elements of the crime charged,
defendants did not specifically know that they could be convicted of those
crimes. Because defendants specifically contested the predicate offenses,
they understood the possibility of conviction. Moreover, MCR 6.112(H)
allows an information to be amended before, during, or after trial. When
an information is amended after trial, the defendant would not have
specific notice that he could be convicted of an added or amended charge.
Yet the court rule specifically allows such amendments unless the
amendment “would unfairly surprise or prejudice the defendant.”9 This
case presents a perfect example of when an amendment to an information
could not and did not unfairly surprise or prejudice the defendant. No
miscarriage of justice arose from allowing the jury to consider the
predicate offenses because (1) defendants were on notice through the
information that specifically set forth the predicate offenses and (2) the
parties actually litigated the factual claims presented by all the charged
offenses.
Despite this, the Court of Appeals failed to address whether the error
was harmful. This Court now simply asserts that the error was not
harmless. It inexplicably states that “[i]t is not likely that defendants
would have been convicted of keeping a house of prostitution had the trial
court not instructed the jury that it could be considered as a lesser

9
Justice KELLY contends that the trial court committed constitutional
error by instructing the jury on the predicate offenses as necessarily
included lesser offenses. In Cornell, supra, this Court held that “harmless
error analysis is applicable to instructional errors involving necessarily
included lesser offenses.” 466 Mich at 361. Moreover, Justice KELLY fails
to explain why instructing on predicate offenses as necessarily included
lesser offenses would require a stricter standard of review than instances
where the trial court allows the prosecution to amend the information
after trial to charge predicate offenses separately, authority specifically
provided to the court in MCR 6.112(H). MCR 6.112(H) protects a
defendant’s due process rights by ensuring that an amendment of an
information does not “unfairly surprise or prejudice the defendant.” I
contend that instructing on predicate offenses as necessarily included
lesser offenses should be subject to the same standard, i.e., Did the
instruction unfairly surprise or prejudice the defendant? Because I
conclude that it did not in this case, constitutional inquiry is unnecessary.
858 482 MICHIGAN REPORTS
included offense of racketeering.” Defendants could not have been
convicted of maintaining a house of ill fame absent a separate charge. But
defendants would have been convicted of the crime of maintaining a
house of ill fame if the trial court had allowed the prosecution to
separately charge that predicate offense under MCR 6.112(H). Separately
charging defendants with maintaining a house of ill fame, as opposed to
merely instructing the jury on it as a necessarily included lesser offense,
would have changed nothing about the conduct or outcome of the trial.
The evidence that convinced the jury to convict defendants of maintain-
ing a house of ill fame as a necessarily included lesser offense was
identical to the evidence that the prosecution would have presented if
defendants had been separately charged.
Therefore, I respectfully dissent from the order holding that the
alleged error is necessarily harmful. I would grant the Attorney General’s
application for leave to appeal or remand this case for harmless-error
analysis.

Leave to Appeal Denied July 18, 2008:

WRIGHT v WRIGHT, No. 136576; Court of Appeals No. 281918.

ZAVRADINOS v JTRB, INC II, LLC, No. 135137; Court of Appeals No.
268570.
KELLY, J. (concurring). I concur with the order denying leave to appeal
in this case. The Court of Appeals correctly concluded that plaintiff failed
to overcome the presumption that the Proberts hold the securities
accounts at issue as tenants by the entirety.
Plaintiff Dimitrios Zavradinos obtained a judgment of $170,000
against defendant Robert Probert. He sought to garnish two of Robert’s
securities accounts to satisfy the judgment. Robert’s wife, Liza Probert,
intervened. Liza sought to defeat the garnishment. She argued that she
and Robert hold the accounts as tenants by the entirety. Thus, plaintiff
cannot garnish the accounts because his judgment is solely against
Robert.
Plaintiff offered into evidence internal documents titled “Applica-
tion Detail Reports.” These reports categorize the accounts at issue as
“JRS.” Following the Proberts’ names on the reports is the designation
“JTWROS.” Both abbreviations stand for the phrase “joint tenants
with right of survivorship.”
Michigan has adopted a statutory presumption that certain types of
personal property owned by spouses are held in tenancies by the
entirety.1 Such property is exempt from execution under a judgment
entered against only one of the spouses.2 The question presented in this
case is whether the statutory presumption applies to the property in
question.

1
MCL 557.151; DeYoung v Mesler, 373 Mich 499 (1964).
2
MCL 600.6023a.
 ACTIONS ON APPLICATIONS 859
In DeYoung v Mesler, judgment creditors of the defendant-husband
sought to reach a debenture issued to the defendant and his wife.3 This
Court rejected the creditors’ claim.4 It construed MCL 557.151 to mean
that spouses hold a debenture by the entirety unless an intent to do
otherwise is affirmatively expressed.5 In reaching that holding, the Court
relied on Hoyt v Winstanley.6
In Hoyt, this Court held that use of the phrase “as joint tenants”
coupled with the phrase “husband and wife” in a conveyance does not
create a joint tenancy rather than an entireties estate.7 This is because an
estate by the entirety is a form of joint tenancy and the terms are
sometimes used interchangeably.8
The Hoyt Court’s reference to spousal language9 does not imply that,
when spousal language is absent, use of the phrase “as joint tenants”
suffices to create an estate in joint tenancy. To the contrary, the Court
referenced spousal language simply because the conveyance at issue
there used spousal language.10 Its analysis centered on the phrase “joint
tenants,” not on the spousal language.
Additionally, Michigan caselaw long predating Hoyt holds that it is not
necessary for a conveyance to use spousal language for courts to presume
the existence of a tenancy by the entirety. In 1890, in the case of Dowling
v Salliotte, the plaintiff argued that a deed that failed to identify the
grantees as husband and wife created a tenancy in common, not a joint
tenancy.11 The plaintiff relied on Howell’s Stat 5560,12 which created a
presumption in favor of tenancies in common. This Court rejected the
plaintiff’s argument, citing Howell’s Stat 5561.13 Section 5561 created an
exception to the presumption of a tenancy in common when the devise or
grant was made to a husband and wife.14
The Dowling Court reasoned that the exception did not apply to “all
grants or devises of land made to persons who are described in the

3
DeYoung, supra at 500-501. The debenture read “promises to pay to
W. Clark Mesler and Marion Mesler, his wife.” Id. at 504.
4
Id. at 504-505.
5
Id. at 504.
6
Hoyt v Winstanley, 221 Mich 515 (1922).
7
Id. at 519.
8
Id.
9
The spousal language in Hoyt is “coupled with husband and wife in a
conveyance to husband and wife.” Id. at 519 (emphasis added).
10
The conveyance at issue in Hoyt read to “Jasper Winstanley and
Elizabeth J. Winstanley, his wife, as joint tenants.” Id. at 516 (emphasis
added).
11
Dowling v Salliotte, 83 Mich 131, 132 (1890).
12
This is a predecessor to MCL 554.44.
13
This is a predecessor to MCL 554.45.
14
Howell’s Stat 5561.
860 482 MICHIGAN REPORTS
conveyance as husband and wife.”15 Rather, the Legislature intended
that the exception apply when the estate holders were in fact married.16
“To say that the existence or non-existence of this fact must depend upon
the recitals in a conveyance would be to substitute form for substance.”17
The Dowling Court’s reasoning applies equally here. The statutory
presumption in favor of tenancies by the entirety applies when the
conveyance is “made payable to persons who are husband and
wife . . . .”18 It does not apply to conveyances describing the grantees as
husband and wife. Thus, as stated by this Court nearly 118 years ago, if
“the estate of both was created at the same time in one instrument, and
they were at the time in fact husband and wife, their interest in the land
was an entirety . . . .”19 It is the fact of marriage, not the recitation of
marriage, that matters when applying the presumption that an entireties
estate exists.20

15
Dowling, supra at 133 (emphasis in original).
16
Id.
17
Id. (emphasis in original).
18
MCL 557.151 (emphasis added).
19
Auditor General v Fisher, 84 Mich 128, 132 (1890) (emphasis in
original).
20
Justice CORRIGAN brushes aside Auditor General because it does not
address MCL 557.151. The fact that the statutory presumption was not
at issue in Auditor General is not significant. What is important is that
this Court has long rejected the argument that failure to use spousal
language in a conveyance controls how the spouses hold the property. See
also Jackson City Bank & Trust Co v Fredrick, 271 Mich 538, 547 (1935)
(“A deed to two parties, who are husband and wife, is sufficient to create
a tenancy by the entirety, whether the conveyance itself sets forth they
are husband and wife or not.”). Justice CORRIGAN similarly brushes aside
the statement in Jackson City Bank as dictum. But she cannot success-
fully claim that it is unsupported by earlier caselaw. Moreover, it is a
statement on which people have relied in drafting conveyances. It would
cause great discombobulation in the field of property law were this Court
suddenly to alter this longstanding drafting guide. Additionally, I note
that Howell’s Stat 5560 and 5561, on which this Court relied in Dowling,
expressly apply to conveyances of land. The current versions of those
statutes also expressly apply to conveyances of land. However, MCL
557.151 makes the types of personal property it lists, when held by
spouses, subject to the same treatment as real property held by spouses.
As the above-cited caselaw makes clear, the ownership of real estate as
tenants by the entirety is not conditioned on the inclusion of spousal
language in the conveyance.
In reaching a contrary conclusion, Justice CORRIGAN relies on this
Court’s opinion in Murphy v Michigan Trust Co, 221 Mich 243 (1922). In
 ACTIONS ON APPLICATIONS 861
The DeYoung Court hypothesized that the only way to overcome the
presumption in favor of tenancies by the entirety is to “use the words
‘not as tenants by the entirety’ when such is the intent of the convey-
ance.”21 This is certainly a clear way to overcome the presumption.
Justice MARKMAN suggests that the presumption was overcome in this
case by the indication in the Application Detail Reports that the Proberts
hold the accounts as joint tenants with the right of survivorship. He
implies that the use of the express “right of survivorship” language is
what distinguishes this case from Hoyt and DeYoung. He relies on the fact
that Michigan recognizes both standard joint tenancies and joint tenan-
cies with the full rights of survivorship.22 He notes that the latter is a
joint life estate with dual contingent remainders and is created by the use
of express words of survivorship in the granting instrument.23
The granting instruments at issue in Hoyt and DeYoung did not
reference the right of survivorship. But more importantly, standard joint
tenancies and joint tenancies with the full rights of survivorship both

Murphy, this Court addressed whether a bank account was held by a

couple as joint tenants or tenants by the entirety. The deposit book
designated the account as “payable to James E. Murphy and Gertrude
Murphy, either or the survivor.” Id. at 244. This Court concluded that
the bank account was held in joint tenancy. Id. at 246. Justice CORRIGAN
notes that in Murphy, this Court found a joint tenancy even though there
was no language in the conveyance negating a tenancy by the entirety.
She examines the conveyance language in Hoyt, Murphy, and DeYoung
and attempts to reconcile them. Her conclusion is that the words “as joint
tenants” is insufficient to rebut the presumption in favor of tenancies by
the entirety only if the conveyance contains spousal language. I reject this
conclusion in light of caselaw that expressly provides the contrary. I
further note that the result reached in Murphy is not at odds with the
Hoyt analysis. In deciding Murphy, this Court considered 1915 CL 8040,
a predecessor to MCL 487.703. The statute applied to bank accounts and
states that where deposits are made “to either or the survivor of them,”
such deposits are held in joint tenancy. The Court reasoned that the
words “payable to either” did not comport with the idea of a tenancy by
the entirety. Id. at 245-246. Thus, Murphy is distinguishable because it
concerned a statute and conveyance language that were not at issue in
Hoyt.
Finally, even if Justice CORRIGAN’s spousal language theory were
correct, the Application Detail Reports indicate that Robert is married
and that Liza is his spouse. Given the nature of the documents, additional
spousal language would have been redundant.
21
DeYoung, supra at 503-504.
22
Albro v Allen, 434 Mich 271, 274 (1990).
23
Id. at 275.
862 482 MICHIGAN REPORTS
entail the right of survivorship. The primary distinction between the two
is that the latter may not be converted to a tenancy in common.24
Tenants by the entirety enjoy the same right of survivorship as joint
tenants.25 A tenancy by the entirety is simply a joint tenancy “plus the
unity of the marital relation.”26 Standard joint tenancies, joint tenancies
with full rights of survivorship, and tenancies by the entirety are all
forms of joint tenancy.27 Thus, for the same reason that the designation
“as joint tenants” was insufficient to create a standard joint tenancy in
Hoyt, the designation “JTWROS” is insufficient to create a joint tenancy
here.28
In support of his position, Justice MARKMAN describes an account
application form containing a place where the Proberts could have
expressed their desire to hold their investment as tenants by the entirety.
That form pertains solely to an account of the Proberts that has no funds.
Thus, it is not at issue. Janet Kemp, a Salomon Smith Barney employee,
testified that she, not the Proberts, filled out the form on the basis of an
oral interview with them. Kemp did not testify that the Proberts directed
her to designate the investment as owned by joint tenants with rights of
survivorship instead of as tenants by the entirety. Nor was there any
testimony from the Proberts in this regard. Thus, there is nothing to
show that the Proberts specifically chose to hold as joint tenants instead
of as tenants by the entirety. Kemp also testified that the Proberts did not
sign the application.29

24
Id.
25
United States v Craft, 535 US 274, 281 (2002).
26
Hoyt, supra at 518.
27
Hoyt, supra at 518 (concerning standard joint tenancies and estates
by the entirety); Albro, supra at 274 (concerning standard joint tenancies
and joint tenancies with full rights of survivorship).
28
Contrary to Justice MARKMAN’s assertion, the Court of Appeals did
not convert one type of estate into a different one. Rather, the Court of
Appeals relied on existing caselaw to conclude that the presumption of an
estate by the entirety was not overcome. The Court of Appeals did
nothing to alter how the Proberts hold their property. Nor, as Justice
MARKMAN suggests, did the Court of Appeals eliminate the distinction
between a standard joint tenancy and a joint tenancy with full rights of
survivorship. Both types of estates can be created by the use of appro-
priate language. To properly create either one, however, the statutory
presumption of an estate by the entirety must be overcome. To overcome
it, very explicit language must be used. The judgment of the Court of
Appeals is consistent with that rule of law. It is not “absurd,” as Justice
MARKMAN contends, to apply this longstanding rule of law. Rather, it
would be absurd to abandon it.
29
There was some suggestion that the application might have been
part of a larger packet of documents signed by the Proberts.
 ACTIONS ON APPLICATIONS 863
Under the circumstances, I agree with the Court of Appeals that

for plaintiff to prevail, we would have to conclude that a form that

may or may not have been signed by the account holders that
selects a joint tenancy rather than a tenancy by the entirety for a
different account at the same financial institution meets the
statutory standard of expressly providing for a form of ownership
other than as tenants by the entirety. We cannot make that leap of
logic. The possible expression of an intent for one account simply
does not expressly provide an intent for a different account.[30]

Entireties ownership of property is a modified form of joint tenancy.

In reliance on Hoyt and DeYoung, the designations “JTWROS” and “JRS”
are insufficient to overcome the statutory presumption in favor of a
tenancy by the entirety. The Court of Appeals properly applied longstand-
ing Michigan caselaw in reaching its decision. A reversal of the Court of
Appeals judgment would upset significant reliance interests. Accordingly,
I concur in the denial of leave to appeal.
CAVANAGH, J. (dissenting). I would reverse the Court of Appeals and
reinstate the trial court’s holding because the defendants’ actions evi-
denced the requisite intent to rebut the presumption in favor of tenancies
by the entirety. Hence, defendants’ accounts were not protected by MCL
600.6023a.
CORRIGAN, J. (dissenting). I dissent from the order denying leave to
appeal. I would reverse the judgment of the Court of Appeals, reinstate
the trial court’s ruling that the Proberts held the brokerage accounts as
joint tenants with rights of survivorship, and remand the case to the
Court of Appeals for consideration of what portion of the accounts are
subject to garnishment. I interpret DeYoung v Mesler, 373 Mich 499
(1964), to mean that the words “as joint tenants” do not rebut the
presumption in favor of a tenancy by the entirety when the conveyance
includes language indicating that the title holders are married (spousal
language). Here, the accounts state that the Proberts hold the accounts
as “JTWROS” (joint tenants with rights of survivorship). Because the
accounts do not include spousal language indicating that the Proberts
hold the accounts “as husband and wife,” they hold the accounts as joint
tenants with rights of survivorship. The Court of Appeals incorrectly
interpreted dicta from DeYoung to require the conclusion that the
Proberts held the accounts as tenants by the entirety because the
accounts did not specifically state “not as tenants by the entirety.”

I. FACTS AND PROCEDURAL POSTURE

In the underlying case, plaintiff was awarded a judgment of $170,000

against defendant Robert Probert. Plaintiff later learned that Robert and

30
Zavradinos v JTRB, Inc, unpublished opinion per curiam of the
Court of Appeals, issued August 23, 2007 (Docket No. 268570), at 2.
864 482 MICHIGAN REPORTS
his wife, Liza Probert, had two brokerage accounts at Salomon Smith
Barney holding $160,000 in assets. Plaintiff sought to garnish these
accounts. The Proberts moved to set aside the garnishment, claiming
that the accounts were not subject to garnishment against Robert alone,
because the Proberts held the accounts together as tenants by the
entirety. Plaintiff responded that the accounts were subject to garnish-
ment because the statutory presumption that married couples hold title
as tenants by the entirety was rebutted by evidence that the Proberts
established the accounts as joint tenants with rights of survivorship.
The trial court held an evidentiary hearing to determine whether the
evidence was sufficient to rebut the statutory presumption that the
Proberts held the accounts as tenants by the entirety. At the hearing, the
Proberts’ financial consultant at Salomon Smith Barney testified that
the Proberts had set up the accounts as joint tenants with rights of
survivorship. She testified that if they had wished to set up the accounts
as tenants by the entirety, they could have done so. The application detail
reports for the accounts state that the accounts are held by the Proberts
as “JTWROS.” Liza testified that she was a homemaker and earned no
income. She had not personally contributed any money to the accounts.
Rather, Robert, who had an annual salary of $1.5 million, had contrib-
uted all the money in the accounts.
The trial court denied the Proberts’ motion to set aside the garnish-
ment. The court held that the application detail reports and the testi-
mony of the Salomon Smith Barney financial consultant established that
the Proberts held the accounts as joint tenants with rights of survivor-
ship. The court held that this evidence was sufficient to overcome the
statutory presumption of tenancy by the entirety. Because the Proberts
held the accounts as joint tenants with rights of survivorship, Robert’s
interest was severable and subject to garnishment. The court then held
that because Liza had not contributed any money to the accounts, Robert
owned all of the money, so all of the funds in the accounts were available
to satisfy plaintiff’s garnishment against Robert.
The Court of Appeals reversed in a split opinion. The majority held
that under DeYoung, supra at 503-504, even listing the husband and wife
as “joint tenants” is insufficient to create an ordinary joint tenancy
rather than a tenancy by the entirety. “DeYoung makes it clear that a
conveyance to a husband and wife as joint tenants is insufficient to defeat
the presumption in favor of a tenancy by the entirety because a tenancy
by the entirety is a form of joint tenancy.” Zavradinos v JTRB, Inc,
unpublished opinion per curiam of the Court of Appeals, issued August
23, 2007 (Docket No. 268570), p 3. The majority held that because the
Proberts’ accounts listed them as joint tenants but did not say “not as
tenants by the entirety,” the accounts must be treated as being held as
tenants by the entirety.
Judge FITZGERALD dissented. He opined that under In re VanConett
Estate, 262 Mich App 660 (2004), overcoming the statutory presumption
of tenancy by the entirety does not require the accounts to clearly state
“not as tenants by the entirety.” He opined:
 ACTIONS ON APPLICATIONS 865
In light of th[e] evidence, the trial court’s findings that the
Proberts opened the accounts as joint tenants with rights of
survivorship and that the Proberts intended to create an estate
other than an estate by the entireties is not clearly erroneous.
Plaintiff rebutted the presumption of a tenancy by the entirety
by evidence demonstrating the Proberts’ express intent to
establish the investment accounts as joint tenants with rights of
survivorship. [Zavradinos, supra at 2 (FITZGERALD, J., dissent-
ing).]

Judge FITZGERALD concluded that because the Proberts held the

accounts as joint tenants, Robert’s interest was severable and subject to
garnishment. Judge FITZGERALD then stated that the trial court did not
clearly err in finding that all of the funds in the accounts belonged to
Robert and were subject to garnishment because Liza had not contrib-
uted any money to the accounts.
Plaintiff appealed. This Court ordered the parties to file supplemental
briefs addressing the following issues:

(1) whether DeYoung v Mesler, 373 Mich 499 (1964), correctly

construed MCL 557.151 to mean that there is a statutory pre-
sumption that property held jointly by a husband and wife is held
by them as tenants by the entirety unless the title or conveyance
expressly provides otherwise, (2) if so, how the presumption of a
tenancy by the entirety may be overcome, and (3) whether a
provision in the title or conveyance specifically identifying the
property owners as husband and wife affects the determination
whether the presumption of a tenancy by the entirety has been
overcome. [480 Mich 1080 (2008).]

II. STANDARD OF REVIEW

This case involves the interpretation of MCL 557.151. “Questions of

statutory interpretation are reviewed de novo.” Ayar v Foodland Dis-
tributors, 472 Mich 713, 715 (2005). “Clear and unambiguous statutory
language is given its plain meaning, and is enforced as written.” Id. at
716.

III. LEGAL BACKGROUND

MCL 600.6023a provides: “Property described in . . . MCL 557.151, or

real property, held jointly by a husband and wife as a tenancy by the
entirety is exempt from execution under a judgment entered against only
1 spouse.” The parties do not dispute that the Proberts’ accounts fall
within the categories of property listed in MCL 557.151. The parties also
do not dispute that if the Proberts hold the accounts as tenants by the
866 482 MICHIGAN REPORTS
entirety, the accounts are not subject to garnishment pursuant to MCL
600.6023a. Thus, the question is whether the Proberts held property
described in MCL 557.151 as tenants by the entirety.
MCL 557.151 provides:

All bonds, certificates of stock, mortgages, promissory notes,

debentures, or other evidences of indebtedness hereafter made
payable to persons who are husband and wife, or made payable
to them as endorsees or assignees, or otherwise, shall be held by
such husband and wife in joint tenancy unless otherwise therein
expressly provided, in the same manner and subject to the same
restrictions, consequences and conditions as are incident to the
ownership of real estate held jointly by husband and wife under
the laws of this state, with full right of ownership by survivor-
ship in case of the death of either.

It appears well-established under this Court’s caselaw that under

MCL 557.151, there is a statutory presumption that property listed in
the statute that is held jointly by a husband and wife is held by them
as tenants by the entirety unless that presumption is rebutted by an
express provision indicating otherwise. DeYoung, supra at 503-
504. Three cases from this Court have discussed the language re-
quired to create a joint tenancy rather than a tenancy by the entirety.
In Murphy v Michigan Trust Co, 221 Mich 243, 244 (1922), the
plaintiffs, a married couple, deposited money in the defendant bank in
a joint account under their names. Plaintiffs had their savings
designated in their deposit book as “payable to James E. Murphy and
Gertrude Murphy, either or the survivor.” Id. James was a partner in
the bank, so when the bank failed, he was not entitled to recover
money from an account that belonged to him personally until the bank
creditors had been paid, unless the money in the account also belonged
to Gertrude. Id. at 245. This Court rejected the plaintiffs’ argument
that they held the accounts as tenants by the entirety:

It is true that such incident of unity of person is the only

addition to a joint tenancy necessary to create a tenancy by
entireties. But even where the unity of person exists a joint
tenancy may be created. Under the terms of the deposits were
plaintiffs each seized of an undivided moiety of the whole or by
entireties? The words “payable to either” do not square with the
idea of a tenancy by entireties but do pointedly relate to a joint
tenancy. If plaintiffs held the deposits as tenants by entireties
the same could not be paid to either during the lifetime of both,
but if they held as joint tenants the deposits were “payable to
either.” [Id. at 245-246.]
 ACTIONS ON APPLICATIONS 867
This Court concluded that under the predecessor to MCL 487.703,1
the plaintiffs held the deposits as joint tenants, so James’s half portion
was severable for the purpose of meeting the creditors’ demands. Id. at
246.
In Hoyt v Winstanley, 221 Mich 515, 516 (1922), this Court considered
real estate conveyed to “Jasper Winstanley and Elizabeth J. Winstanley,
his wife, as joint tenants.” One of the issues was whether the Winstanleys
took the realty as a tenancy by the entirety or as joint tenants. Id. at
517. This Court explained that “[a]t common law a conveyance to
husband and wife gave to them a tenancy by entirety.” Id. A husband and
wife, however, can hold an estate as joint tenants or tenants in common
“if sufficiently described as such in the deed.” Id. This Court described
the nature of joint tenancies and tenancies by the entirety as follows:

The explanatory words, “as joint tenants,” would of themselves

be sufficient to indicate that an estate in joint tenancy was
intended to be conveyed were it not for the fact that an estate by
the entirety is a species of joint tenancy and is commonly included
in that class. We have held that a grant to a husband and wife
jointly conveyed an estate in entirety. The same word “jointly”
used in a conveyance to grantees not husband and wife conveys an
estate in joint tenancy. So, too, the words “joint tenants,” when
coupled with “husband and wife,” do not bear the ordinary
meaning, for an estate by the entirety is a joint tenancy. It is an
estate in joint tenancy plus the unity of the marital relation. At
common law and in our statutes, estates by the entirety are
regarded as a modified form of joint tenancy. [Id. at 518.]

This Court then held that the words “as joint tenants,” coupled with
husband and wife, was insufficient to rebut the presumption that a
tenancy by the entirety was intended:

In view of the fact that estates by entirety are a modified form

of joint tenancy, that the terms are sometimes used interchange-
ably, and that our statute treats them as a species of joint tenancy,

1
1915 CL 8040 provided:

When a deposit shall be made in any bank or trust company by

any person in the name of such depositor or any other person, and
in form to be paid to either or the survivor of them, such deposits
thereupon and any additions thereto, made by either of such
persons, upon the making thereof, shall become the property of
such persons as joint tenants, and the same together with all
interest thereon, shall be held for the exclusive use of the persons
so named and may be paid to either during the lifetime of both, or
to the survivor after the death of one of them.
868 482 MICHIGAN REPORTS
it is my judgment that the words “as joint tenants,” coupled with
husband and wife in a conveyance to husband and wife, are not
sufficient to indicate that an estate in joint tenancy was intended
to be conveyed. To create an estate in joint tenancy in a convey-
ance to a husband and wife, the words used must be sufficiently
clear to negative the common-law presumption that an estate by
entirety was intended. [Id. at 519.]

Thus, this Court concluded that the deed to “Jasper Winstanley and
his wife as joint tenants” conveyed a tenancy by the entirety. Id. at 520.
In DeYoung, the plaintiffs, judgment creditors of the defendant
husband, sought to reach a debenture issued to the defendants, a married
couple, in both of their names. The debenture stated that the debtor
“promises to pay to W. Clark Mesler and Marion Mesler, his wife.”
DeYoung, supra at 504. The issue was whether under MCL 557.151, the
debenture created a joint tenancy or a tenancy by the entirety. This Court
first stated that it recognized that, “irrespective of presumptions to the
contrary, real property in this State can be held by husband and wife as
joint tenants when a clear intent to create a joint tenancy occurs.” Id. at
502-503. This Court quoted the language in Hoyt explaining that a
tenancy by the entirety is a form of joint tenancy, and that “ ‘the words
“as joint tenants,” coupled with husband and wife in a conveyance to
husband and wife, are not sufficient to indicate that an estate in joint
tenancy was intended to be conveyed.’ ” Id. at 503, quoting Hoyt, supra
at 519. The DeYoung Court then stated that Hoyt

appears to require that in order not to create a tenancy by the

entirety in realty conveyed to husband and wife, even the use of
the words “as joint tenants” is insufficient. The only alternative
seems to be to use the words “not as tenants by the entirety” when
such is the intent of the conveyance. [DeYoung, supra at 503-504.]
This Court, applying Hoyt’s test to MCL 557.151, held that an estate
by the entirety is created “unless an intent to do otherwise is affirma-
tively expressed.” Id. at 504. The DeYoung Court then adopted the
following holding from the Court of Appeals for the Sixth Circuit:
“In Michigan, the common-law rule that a conveyance to
husband and wife creates a tenancy by the entirety has persisted
except in respect to conveyances explicitly indicating that some
other kind of tenancy is intended. Even the qualifying phrase ‘as
joint tenants,’ while sufficient to create a joint tenancy in a
conveyance to grantees generally, does not avoid the creation of an
estate by the entirety when the grantees stand in the marital
relation to each other.” [Id. at 504, quoting Internal Revenue
Comm’r v Hart, 76 F2d 864, 865 (CA 6, 1935).]

This Court then stated that it was constrained to hold that the language
of MCL 557.151 indicates a legislative intent that the defendants held the
 ACTIONS ON APPLICATIONS 869
debenture as tenants by the entirety. DeYoung, supra at 504-
505. Therefore, the plaintiffs could not reach the defendant husband’s
nonseverable interest in the debenture. Id. at 504-505. Justice SOURIS
dissented. He opined that MCL 557.151 created a presumption in favor of
a joint tenancy, not a tenancy by the entirety.
More recently, the Court of Appeals considered a conveyance of real
property to a husband and wife in In re VanConett Estate. In VanConett,
supra at 662, Herbert VanConett sought to dispose of real property
following the death of his wife, Ila VanConett, under a mutual will made
pursuant to a contract to make a will. The deed conveyed the property to
“HERBERT L. VANCONETT, ILA R. VANCONETT and FLORENCE H.
VANCONETT as joint tenants with full rights of survivorship and not as
tenants in common.” Id. at 667. The Court of Appeals held that the
plaintiff estate had standing to bring an action to recover the real
property because the VanConetts held the property as joint tenants with
rights of survivorship rather than tenants by the entirety, so the property
passed within Ira’s will. Id. at 666-667. The Court of Appeals held that
the VanConetts held the property as joint tenants with rights of survi-
vorship because the deed contained explicit language overcoming the
presumption of a tenancy by the entirety:
In a tenancy by the entireties, a husband and wife hold joint
title to real property with right of survivorship. Lilly v Schmock,
297 Mich 513, 517; 298 NW 116 (1941). A deed or devise of real
property to a husband and wife presumptively creates a tenancy
by the entireties, MCL 554.44, 554.45, but this presumption
may be overcome by explicit language in the deed. DeYoung v
Mesler, 373 Mich 499, 503-504; 130 NW2d 38 (1964). When the
VanConetts took title to the property, the deed conveyed the
land to “HERBERT L. VANCONETT, ILA R. VANCONETT and
FLORENCE H. VANCONETT as joint tenants with full rights
of survivorship and not as tenants in common.” Because explicit
language was used, a tenancy by the entireties was not created
between Herbert and Ila, and all three held the property as joint
tenants with full rights of survivorship. [VanConett, supra at
667.]

IV. ANALYSIS

Plaintiff argues that the Court of Appeals erred by interpreting

DeYoung to mean that when property is conveyed to a married couple,
using the words “as joint tenants” will create a tenancy by the entirety
unless the conveyance also includes express language saying “not as
tenants by the entirety.” Although I think that the Court of Appeals
interpretation of DeYoung is reasonable, I agree with plaintiff that this is
not the best interpretation of DeYoung.
In both Hoyt, supra at 517, and DeYoung, supra at 504, this Court held
that a conveyance to a husband and wife creates a tenancy by the entirety
870 482 MICHIGAN REPORTS
unless an intent to do otherwise is clearly expressed. The United States
Court of Appeals for the Sixth Circuit explained that Michigan’s
common-law rule, which is unchanged by statute, is as follows: “ ‘While
a conveyance or devise to a husband and wife ordinarily creates a tenancy
by entireties, an intention clearly expresses that they shall take as
tenants in common, or as joint tenants, is effective.’ ” Guldager v United
States, 204 F2d 487, 488 (CA 6, 1953), quoting Tiffany, Real Property
(1940), § 290.
In DeYoung, this Court quoted the holding in Hoyt that “ ‘the words
“as joint tenants,” coupled with husband and wife in a conveyance to
husband and wife, are not sufficient to indicate that an estate in joint
tenancy was intended to be conveyed.’ ” DeYoung, supra at 503, quoting
Hoyt, supra at 519 (emphasis added). The DeYoung Court interpreted
Hoyt to mean that “in order not to create a tenancy by the entirety in
realty conveyed to husband and wife, even the use of the words ‘as joint
tenants’ is insufficient.” DeYoung, supra at 503 (emphasis added). In
both Hoyt and DeYoung, the conveyances included spousal language
indicating that the property was conveyed to the married couple together
as husband and wife. The Hoyt and DeYoung courts appear to have
conditioned their statements, that the words “as joint tenants” are
insufficient to rebut the presumption in favor of a tenancy by the
entirety, on the use of such spousal language. Murphy supports this
conclusion. In Murphy, the married couple’s bank deposit book did not
include spousal language, and, although the deposit book did not specifi-
cally state “not as tenants by the entirety,” this Court nonetheless held
that the conveyance created a joint tenancy rather than a tenancy by the
entirety.2
In light of these opinions, DeYoung is best interpreted to mean that
the words “as joint tenants” is insufficient to rebut the presumption in
favor of a tenancy by the entirety if the conveyance contains spousal
language such as “husband and wife” or “his wife.” In other words, when
property is held by a husband and wife “as joint tenants with rights of
survivorship,” if spousal language indicating that the title holders are
married is included in the conveyance or designation of title, the use of
the seemingly contrary phrase “as joint tenants with rights of survivor-
ship” is not in and of itself sufficient to defeat the presumption that the
conveyance or designation of title intended a tenancy by the entirety. If

2
Murphy involved the predecessor of MCL 487.703, which specifically
applied to certain types of bank deposits involving more than one person
(including married couples) and provided that such deposits “shall
become the property of such persons as joint tenants . . . .” 1915 CL
8040. Similarly, MCL 557.151 provides that the listed types of personalty
“shall be held by such husband and wife in joint tenancy . . . .”
Therefore, Murphy’s holding, although distinguishable because it applies
to a different statute, is helpful in resolving whether property held by a
married couple under MCL 557.151 is held in joint tenancy or tenancy by
the entirety.
 ACTIONS ON APPLICATIONS 871
the conveyance uses spousal language, then, according to DeYoung, the
only way to way to rebut the presumption in favor of a tenancy would be
to include the words “not as tenants by the entirety.” When the
conveyance uses the words “as joint tenants with rights of survivorship”
and does not contain spousal language, however, the words “not as
tenants by the entirety” are not necessary to create a joint tenancy with
rights of survivorship. This interpretation is supported by the Court of
Appeals’ observation that the use of spousal language indicates an intent
to convey as tenants by the entirety. See Butler v Butler, 122 Mich App
361, 368 (1983) (“[T]he plaintiff and defendant were husband and wife
when the deeds were created. . . . [T]he deeds used the designation ‘his
wife’ in referring to plaintiff. Such designation indicates an intent to take
as tenants by the entireties.”).3

3
Defendants point out that in Jackson City Bank & Trust Co v
Fredrick, 271 Mich 538, 547 (1935), this Court stated, “A deed to two
parties, who are husband and wife, is sufficient to create a tenancy by the
entireties, whether the conveyance itself sets forth they are husband and
wife or not.” This statement, however, could be interpreted to mean
merely that spousal language is not always required to create a tenancy
by the entirety. It does not necessarily mean that spousal language is
irrelevant in determining whether a joint tenancy or a tenancy by the
entirety has been created. “[E]ven where the unity of person exists a joint
tenancy may be created.” Murphy, supra at 245. Further, this statement
from Jackson City Bank is dictum. In Jackson City Bank, supra at 547,
the deed conveyed the property to the couple “as husband and wife” and
“as tenants by the entireties,” with “rights of survivorship.” The problem
was that the couple was not legally married. Id. at 542. This Court held
that the intent of the deed was to create a joint tenancy with a right of
survivorship. Id. at 547-548. The Court held that because the parties
were not legally married, it was irrelevant that the deed provided that a
tenancy by the entirety was created. Id. Because the deed in Jackson City
Bank contained spousal language and this Court held that the deed
conveyed a joint tenancy, this Court’s statement that a tenancy by the
entirety may be created without spousal language is nonbinding dictum.
Justice KELLY erroneously cites Dowling v Salliotte, 83 Mich 131
(1890), for the proposition that the use of spousal language is irrelevant
in determining whether the presumption in favor of a tenancy by the
entirety has been rebutted. In Dowling, supra at 133, this Court held that
under Howell’s Stat 5560 and 5561, a deed conveyed property to a
married couple as joint tenants rather than as tenants in common,
despite the absence of spousal language in the deed. The Court’s holding
does not support Justice KELLY’s argument for three reasons. First,
Dowling did not even involve a tenancy by the entirety because the
Dowling Court observed that “estates in entirety were abolished in this
State by the statute of 1846 . . . .” Id. at 135. Second, the Dowling
872 482 MICHIGAN REPORTS
This conclusion is also consistent with the Court of Appeals holding in
VanConett. In VanConett, supra at 667, the conveyance used the words
“as joint tenants with full rights of survivorship” and did not use spousal
language. The Court of Appeals held that the language “as joint tenants”
was sufficiently explicit to rebut the presumption in favor of a tenancy by
the entirety. This holding is consistent with my conclusion that the words
“as joint tenants with rights of survivorship” can rebut the presumption
in favor of a tenancy by the entirety when the conveyance does not
include spousal language. For the reasons stated in Justice MARKMAN’s
dissenting statement, I agree that the Court of Appeals’ bases for
distinguishing VanConett are misplaced.4

holding is based entirely on the language of Howell’s Stat 5560 and

5561. Howell’s Stat 5560 provided: “All grants and devises of lands
made to two or more persons, except as provided in the following
section, shall be construed to create estates in common, and not in
joint tenancy, unless expressly declared to be in joint tenancy.”
Howell’s Stat 5561 provided: “The preceding section shall not apply
to . . . devises or grants made . . . to husband and wife.” The Dowling
Court held that the husband and wife took as joint tenants because the
“statute does not provide that in all grants and devises of land made
to persons who are described in the conveyance as husband and wife
they shall take as joint tenants.” Dowling, supra at 133 (emphasis in
original). This correct holding is based on the unambiguous language
of Howell’s Stat 5560 and 5561, which are inapplicable to this case.
Third, Dowling is distinguishable because it did not discuss the
language necessary to rebut the statutory presumption in favor of a
tenancy in common. The deed in Dowling did not contain language
expressly stating that the couple took the property as tenants in
common rather than as joint tenants, whereas the detail application
reports in this case specifically state that the Proberts took the
accounts as joint tenants with rights of survivorship rather than as
tenants by the entirety.
The other case Justice KELLY cites, Auditor General v Fisher, 84 Mich
128 (1890), also does not support her position. In that case, this Court
held that the husband and wife held real property as tenants by the
entirety even though the land contract did not expressly state that they
were married. Id. at 132. Auditor General has nothing to do with the
statute in the present case. Further, it did not discuss what language is
sufficient to rebut a presumption in favor of a tenancy by the entirety.
Auditor General merely explained that a married couple who do not
specify how they hold property hold the property as tenants by the
entirety, despite the lack of spousal language. This holding is entirely
consistent with my position in this case.
4
Justice KELLY fails to reconcile the Court of Appeals decision in this
case with VanConett. Under VanConett, the words “as joint tenants with
 ACTIONS ON APPLICATIONS 873
Further, the Court of Appeals interpretation of DeYoung seems
inconsistent with principles of “plain language” and “right to contract.”
The inclusion of the words “as joint tenants with rights of survivorship,”
without spousal language, should mean that the couple takes the
property as joint tenants with rights of survivorship. The Court of
Appeals holding that married couples who state on their form of
ownership that they hold the property “as joint tenants with rights of
survivorship” do not hold the property as joint tenants with rights of
survivorship, but instead hold the property as tenants by the entirety,
seems contrary to the plain language of the document and the parties’
right to contract as they see fit.5 Most married couples will not know that
if they want a joint tenancy with rights of survivorship, they must
expressly state on the form that they do not hold the property as tenants
by the entirety. This is especially true because married couples such as
the Proberts frequently complete preprinted forms designating the form
of ownership. It is unrealistic to expect married couples who want to
create a joint tenancy with rights of survivorship to write by hand “not as
tenants by the entirety” on a preprinted form that already uses the words
“as joint tenants with rights of survivorship.”
Additionally, I agree with plaintiff that DeYoung’s statement that the
words “as joint tenants” are insufficient to rebut the statutory presump-
tion in favor of a tenancy by the entirety is dictum. The conveyance in
DeYoung, unlike the conveyance in the instant case, did not include “as
joint tenants with rights of survivorship” language. Rather, the convey-
ance in DeYoung merely stated, “to W. Clark Mesler and Marion Mesler,
his wife.” Therefore, it was unnecessary for the DeYoung Court to
address whether the words “as joint tenants” are sufficient to rebut the
presumption in favor of a tenancy by the entirety. For similar reasons, it
was also unnecessary for the DeYoung Court to state that the only way to
rebut the presumption is to state “not as tenants by the entirety.”
“[S]tatements concerning a principle of law not essential to determina-
tion of the case are obiter dictum and lack the force of an adjudication.”
Roberts v Auto-Owners Ins Co, 422 Mich 594, 597-598 (1985). In order to
resolve the DeYoung case, it was necessary for this Court to hold that
under MCL 557.151 a conveyance that uses spousal language and does

full rights of survivorship” were sufficient to rebut the presumption that

a tenancy by the entirety was created. VanConett, supra at 667. If the
majority thinks that VanConett was incorrectly decided, it should grant
leave to appeal so that it can overrule that decision. Until that time, the
VanConett decision remains binding on the Court of Appeals. MCR
7.215(J)(1).
5
In Lober v Dorgan, 215 Mich 62, 64 (1921), this Court stated:

The parties themselves have provided for survivorship by

agreement. The parties having so contracted, is there any valid
reason why we should refuse to enforce their agreement? Our
statute does not prohibit such a contract. There is nothing in the
agreement which is immoral or against the public good.
874 482 MICHIGAN REPORTS
not specify the type of estate it intends to convey is presumed to convey
a tenancy by the entirety. The DeYoung Court’s other statements going
beyond this essential holding were dicta.

V. APPLICATION

In this case, the application detail reports did not use spousal
language referring to the Proberts “as husband and wife.” Rather, the
reports merely stated: “Robert Alan Probert and Liza Danielle Probert
JTWROS.” Although the “profile information” later in the reports states
that Robert is married, this is not the type of spousal language involved
in DeYoung that indicates an intent to create a tenancy by the entirety.
Therefore, I do not think that the DeYoung dicta apply in this case. The
application detail reports expressly state that the Proberts hold the
accounts as joint tenants with rights of survivorship. This language
indicates a clear intention to create a joint tenancy with rights of
survivorship. See DeYoung, supra at 503 (holding that a married couple
can hold property “as joint tenants when a clear intent to create a joint
tenancy occurs”). Although the language “JTWROS” might not be
sufficient under DeYoung’s dicta to rebut the presumption in favor of a
tenancy by the entirety when the conveyance uses spousal language, I
think that this clear language intending to create a joint tenancy with
rights of survivorship is sufficient to rebut the presumption in cases like
this when the conveyance does not use spousal language. See VanConett,
supra at 667.

VI. CONCLUSION

Because the application detail reports do not use spousal language

and state that the Proberts held the accounts as “JTWROS,” I would hold
that the Proberts held the accounts as joint tenants with rights of
survivorship. I would reverse the Court of Appeals on this issue and
remand the case to the Court of Appeals for plenary consideration of
whether the trial court clearly erred in finding that plaintiff rebutted the
presumption that the Proberts owned equal parts of the accounts.
MARKMAN, J. (dissenting). I would reverse the judgment of the Court of
Appeals and reinstate the trial court’s ruling that the brokerage accounts
in this case were held as joint tenancies with rights of survivorship and,
therefore, were not subject to the terms of MCL 600.6023a.
Plaintiff, Dimitrios Zavradinos, was awarded a judgment of $170,000
against defendant, Robert Probert. Zavradinos sought to garnish two
brokerage accounts that Probert had at Salomon Smith Barney, and
Probert’s wife, Liza Probert, intervened, claiming that the accounts were
not subject to garnishment because they were held as tenancies by the
entirety. It is undisputed that Liza has no income and did not contribute
money to either account. At the time the accounts were opened, Robert
was a professional hockey player earning $1.5 million annually.
When the Proberts first applied for an account at Salomon Smith
Barney, the application form contained different check boxes for different
 ACTIONS ON APPLICATIONS 875
types of accounts, and the Proberts selected “JRS” and left “ENT”
blank.1 Three subsequent accounts, two of which are the accounts at
issue in this case, were also designated “JRS” on the application detail
reports. In addition, under the “name” column, the account owners were
listed as “Robert Alan Probert and Liza Danielle Probert JTWROS.”
Farther down on the forms, Liza was designated as Robert’s spouse.
Janet Kemp, who partially managed the account, testified that “JRS” and
“JTWROS” both mean “joint tenants with rights of survivorship” and
that “ENT” means “tenancy by the entirety.” Kemp also testified that the
Proberts set up the accounts as joint tenants with rights of survivorship,
that the accounts had been treated as such, and that the Proberts
alternatively could have set up the accounts as tenants by the entirety.
The trial court allowed Zavradinos to garnish the accounts, holding that
the accounts were held as joint tenancies with rights of survivorship and
not as tenancies by the entirety. The trial court also ruled that Robert
owned all the money in the accounts and, therefore, that all the funds
were available to satisfy Zavradinos’s judgment.
The Court of Appeals reversed, holding that the only way to overcome
the presumption of a tenancy by the entirety when property is held by a
married couple is to use the words “not as tenants by the entirety.” Judge
FITZGERALD dissented, stating that he would not require such an explicit
disclaimer.
MCL 557.151 provides:

All bonds, certificates of stock, mortgages, promissory notes,

debentures, or other evidences of indebtedness hereafter made pay-
able to persons who are husband and wife, or made payable to them
as endorsees or assignees, or otherwise, shall be held by such husband
and wife in joint tenancy unless otherwise therein expressly provided,
in the same manner and subject to the same restrictions, conse-
quences and conditions as are incident to the ownership of real estate
held jointly by husband and wife under the laws of this state, with full
right of ownership by survivorship in case of the death of either.

MCL 600.6023a provides:

Property described in section 1 of 1927 PA 212, MCL 557.151,
or real property, held jointly by a husband and wife as a tenancy by
the entirety is exempt from execution under a judgment entered
against only 1 spouse.

1
This account had been closed, so it was not subject to garnishment. It
is unclear from the record whether this form was part of the larger
application signed by the Proberts. The form was used as an exhibit to
show how the Proberts elected to set up the first account, and three
subsequent accounts, and demonstrates the different classifications that
Salomon Smith Barney used for different types of accounts.
876 482 MICHIGAN REPORTS
The parties do not dispute that the two accounts in question fall
within the property described in MCL 557.151, so if the accounts are held
as tenancies by the entirety, they are exempt from garnishment for the
judgment against Robert.
In Hoyt v Winstanley, 221 Mich 515, 516 (1922),2 land was conveyed to
“ ‘Jasper Winstanley and Elizabeth J. Winstanley, his wife, as joint
tenants.’ ” The Court stated:

In this State, where the common-law rule is unchanged by

statute, a conveyance to husband and wife conveys an estate in
entirety, but may create one in joint tenancy or in common, if
explicitly so stated in the deed. The question then in the case
under consideration is the construction to be placed on the
language of the deed to “Jasper Winstanley and wife as joint
tenants.” To “Jasper Winstanley and wife” conveys an estate by
the entirety. The explanatory words, “as joint tenants,” would of
themselves be sufficient to indicate that an estate in joint tenancy
was intended to be conveyed were it not for the fact that an estate
by the entirety is a species of joint tenancy and is commonly
included in that class. We have held that a grant to a husband and
wife jointly conveyed an estate in entirety. The same word
“jointly” used in a conveyance to grantees not husband and wife
conveys an estate in joint tenancy. So, too, the words “joint
tenants,” when coupled with “husband and wife,” do not bear the
ordinary meaning, for an estate by the entirety is a joint tenancy.
It is an estate in joint tenancy plus the unity of the marital
relation. At common law and in our statutes, estates by the
entirety are regarded as a modified form of joint tenancy. . . .

***

. . . To create an estate in joint tenancy in a conveyance to a

husband and wife, the words used must be sufficiently clear to
negative the common-law presumption that an estate by entirety
was intended. [Id. at 518-519.]

In DeYoung v Mesler, 373 Mich 499, 503 (1964), the Court noted that,
under Hoyt, the language “as joint tenants” was not sufficient to defeat
the creation of a tenancy by the entirety in realty conveyed to a husband
and wife. The Court further stated: “The only alternative seems to be to
use the words ‘not as tenants by the entirety’ when such is the intent of
the conveyance.” Id. at 503-504. The Court applied this reasoning to
MCL 557.151 and held that the statute created a presumption that a

2
Hoyt predates MCL 557.151, which was enacted in 1927. However,
later cases that interpret MCL 557.151 refer to Hoyt.
 ACTIONS ON APPLICATIONS 877
tenancy by the entirety was created “unless an intent to do otherwise is
affirmatively expressed.” Id. at 504.
The question here is whether the presumption that the accounts were
held as tenancies by the entirety was overcome by a sufficiently express
provision that created a different type of estate. In In re VanConett Estate,
262 Mich App 660, 664 (2004), a married couple, Herbert and Ila
VanConett, had executed mutual wills pursuant to a contract. The wills
provided that “the surviving spouse’s will would become irrevocable at
the first spouse’s death.” The Court of Appeals reversed the probate
court’s finding that the real property at issue was held by the VanConetts
as a tenancy by the entirety, stating:
A deed or devise of real property to a husband and wife
presumptively creates a tenancy by the entireties, MCL 554.44,
554.45, but this presumption may be overcome by explicit lan-
guage in the deed. DeYoung v Mesler, 373 Mich 499, 503-504; 130
NW2d 38 (1964). When the VanConetts took title to the property,
the deed conveyed the land to “HERBERT L. VANCONETT, ILA
R. VANCONETT and FLORENCE H. VANCONETT as joint
tenants with full rights of survivorship and not as tenants in
common.” Because explicit language was used, a tenancy by the
entireties was not created between Herbert and Ila, and all three
held the property as joint tenants with full rights of survivorship.1
____________________________________________________________
1
We do not mean to [imply] by our statement, which is specific
to the facts of this case, that a joint tenancy cannot be created
between a married couple holding property as tenants by the
entireties and a joint tenant. MCL 554.44; MCL 554.45; see
Fullagar v Stockdale, 138 Mich 363; 101 NW 576 (1904).
____________________________________________________________
[Id. at 667.]

The Court of Appeals determined that, upon Florence’s death, the

property passed to Herbert and Ila as “joint tenants with full rights of
survivorship,” and, upon Ila’s death, the property passed to Herbert
outside Ila’s will. Id. at 667-668.
In Michigan, there are two types of joint tenancies. Albro v Allen, 434
Mich 271, 274 (1990). In the standard joint tenancy, each tenant has an
undivided share and possession of the whole, and upon the death of one
tenant, the survivor takes the whole estate. Id. at 274-275. However, the
right of survivorship may be destroyed if either party conveys his or her
interest in the estate, thereby converting the estate into a tenancy in
common. Id. at 275. On the other hand, the joint tenancy with full rights
of survivorship, which is created by express words of survivorship, is a
joint life estate with indestructible dual contingent remainders. Id. at
275-276. In this type of joint tenancy, the right of survivorship cannot be
affected by the conveyance of one tenant’s interest, i.e., the tenancy
cannot be converted into a tenancy in common. Id. at 278.
878 482 MICHIGAN REPORTS
A tenancy by the entirety has been referred to as a “species” or
“modified form” of joint tenancy. Hoyt, supra at 518. A tenancy by the
entirety would be considered a modified form of the standard joint
tenancy. A tenancy by the entirety is similar to the standard joint
tenancy, but has the added element of a marriage. Budwit v Herr, 339
Mich 265, 273 (1954). Neither spouse can alienate or encumber the
property without the consent of the other. Long v Earle, 277 Mich 505,
517 (1936). If the husband and wife are divorced, they become tenants in
common of the property, and the survivorship rights are destroyed.
Budwit, supra at 273.
In her concurring statement, Justice KELLY minimizes the difference
between a joint tenancy and a joint tenancy with full rights of survivor-
ship, stating: “[S]tandard joint tenancies and joint tenancies with the full
rights of survivorship both entail the right of survivorship. The primary
distinction between the two is that the latter may not be converted to a
tenancy in common.” Ante at 861-862. This is a quite significant
difference between the two types of estates. The Court of Appeals holding
that the accounts were tenancies by the entirety altogether ignored the
distinction between a joint tenancy with full rights of survivorship and a
standard joint tenancy by converting an estate with indestructible
survivorship rights into an estate with destructible survivorship rights.
The only way to create a joint tenancy with full rights of survivorship
rather than a standard joint tenancy is to include survivorship language,
which the parties clearly did in this case. While Justice KELLY correctly
asserts that “[t]enants by the entirety enjoy the same right of survivor-
ship as joint tenants,” she fails to recognize that tenants by the entirety
do not enjoy the same rights of survivorship as joint tenants with full
rights of survivorship. Ante at 862. The judgment of the Court of Appeals
in this case essentially eliminated the difference between a standard joint
tenancy and a joint tenancy with full rights of survivorship by treating
the account as a standard joint tenancy.3
The Court of Appeals held that to create a joint tenancy, the parties
must use the words “not as tenants by the entirety” as indicated in
DeYoung. However, the Court in DeYoung did not hold that such a
formulaic provision was required to rebut the presumption of a tenancy
by the entirety. Rather, the Court was speculating concerning what
evidence would be sufficient to rebut the presumption. Moreover, the
statute itself does not require any particular language to indicate that the
tenancy is not by the entirety, but only requires some express provision

3
Justice KELLY disagrees, asserting that “[b]oth types of estates can be
created by the use of appropriate language.” Ante at 862 n 28. In the
wake of the Court of Appeals ruling in this case, the “appropriate
language” a married couple must use to create a joint tenancy with full
rights of survivorship apparently is “as joint tenants with the right of
survivorship and not as tenants by the entirety.” I find it absurd to
conclude that the Proberts or Salomon Smith Barney should have
contemplated as a function of existing caselaw that such language was
required to set up a joint tenancy with full rights of survivorship.
 ACTIONS ON APPLICATIONS 879
to rebut the presumption. The express provision in this case, “JTWROS,”
met this requirement. A joint tenancy with rights of survivorship is
distinct from both a standard joint tenancy and its modified form, the
tenancy by the entirety.4 In addition, there was evidence that the
Proberts had the option of setting up the accounts as tenancies by the
entirety, but specifically chose to set up joint tenancies with rights of
survivorship. It would be utterly superfluous to require the Proberts to
additionally write “and not as a tenancy by the entirety” after the initials
“JRS” or “JTWROS” on the forms, or to require Salomon Smith Barney
to include such language on its forms, when a tenancy by the entirety is
already an option, designated “ENT.”5
The Court of Appeals distinguished its decision in VanConett on the
basis that explicit language was used to rebut the presumption and that
the property was owned jointly by three people rather than just a
husband and wife. This is not a reasonable distinction, in my judgment.
First, the explicit language that the Court of Appeals referred to in
VanConett was the phrase “and not as tenants in common.” This
language does not rebut the presumption of a tenancy by the entirety
under the reasoning of the Court of Appeals in this case that the phrase
“not as tenants by the entirety” is required; a tenancy in common is an

4
The practical differences between the two estates with regard to
personal property, such as brokerage accounts, are minimal compared to
the differences between the two estates with regard to real property. In
this case, Robert and Liza Probert could deplete the accounts or even
close them altogether, leaving the “indestructible contingent remainder”
as nothing. However, the difference is relevant in the instant case to
demonstrate the intention to create a specific type of account, because
neither a standard joint tenancy nor a joint tenancy with rights of
survivorship are subject to the protections that MCL 600.6023a affords a
tenancy by the entirety.
5
Justice KELLY dismisses this evidence because the form containing
this designation “pertains solely to an account of the Proberts that has no
funds.” Ante at 862. However, that form is relevant to demonstrate
Salomon Smith Barney’s practice of using the abbreviation “ENT” to
designate a tenancy by the entirety on its standard forms. Kemp’s
testimony also verifies this practice. Further, Justice KELLY asserts that
“there is nothing to show that the Proberts specifically chose to hold as
joint tenants instead of as tenants by the entirety.” Ante at 862. She
states that the application form for the first account was filled out on the
basis of an oral interview Kemp conducted with the Proberts. Ante at 862.
However, this statement, coupled with Kemp’s testimony that the
Proberts set up the accounts as joint tenants with rights of survivorship
and could have set up the accounts as tenants by the entirety, completely
refutes Justice KELLY’s conclusion that there is no evidence that the
Proberts specifically chose to set up the accounts as joint tenants with
rights of survivorship.
880 482 MICHIGAN REPORTS
entirely different type of estate than a tenancy by the entirety. Second,
the fact that the property was jointly owned by three people ignores the
express recognition in VanConett that a joint tenancy could be created
between a married couple holding property as tenants by the entirety and
a joint tenant. VanConett, supra at 667 n 1.
Here, there was an express provision creating a joint tenancy with
rights of survivorship, and also evidence that the Proberts specifically
chose not to create a tenancy by the entirety. This was sufficient to
overcome the presumption that the Proberts held the accounts as tenants
by the entirety. I would reverse the Court of Appeals judgment and
reinstate the trial court’s ruling that the accounts were held as joint
tenancies with rights of survivorship and, therefore, not subject to the
protection of MCL 600.6023a.

Leave to Appeal Denied July 23, 2008:

PEOPLE v EUGENE KNIGHT, No. 131180. The denial is without prejudice

to the defendant’s right to file a motion for relief from judgment pursuant
to MCR 6.500 et seq. that may include the issues whether the 15-year
maximum sentence represents a violation of the plea agreement, which
the circuit court in part characterized as the defendant’s agreeing to
plead guilty to “the charge of perjury with the understanding that the
initial sentence would be limited to a maximum of five years in prison,”
and whether counsel was ineffective for failing to object on this ground.
See Plea Transcript (April 30, 1997), at pp 2-4, 8-9. Court of Appeals No.
269209.
WEST v FARM BUREAU GENERAL INSURANCE COMPANY OF MICHIGAN, No.
132156; Court of Appeals No. 251003.
PEOPLE v ERWIN HARRIS, No. 135535. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 280406.
CAVANAGH and KELLY, JJ. We would grant leave to appeal.
HEALING PLACE AT NORTH OAKLAND MEDICAL CENTER V ALLSTATE INSURANCE
COMPANY, No. 135670; Court of Appeals No. 272960.
CAVANAGH WEAVER, and KELLY, JJ. We would grant leave to appeal.
In re TROY (REED v LEARY), No. 136164; Court of Appeals No. 279852.
KELLY, J. I would remand this case to the Court of Appeals for
consideration as on leave granted.
SEGER v HARTFORD INSURANCE COMPANY OF THE MIDWEST, No. 136183;
Court of Appeals No. 274572.
PEOPLE v ALTON, No. 136205; Court of Appeals No. 282524.
CAVANAGH and KELLY, JJ. We would grant leave to appeal.
PEOPLE V TOBIAS, No. 136225; Court of Appeals No. 283379.
CAVANAGH and KELLY, JJ. We would remand this case to the Court of
Appeals for consideration as on leave granted.
 ACTIONS ON APPLICATIONS 881
PEOPLE v CORDERO JONES, No. 136230; Court of Appeals No. 276822.
PEOPLE v LOWERY, No. 136254; Court of Appeals No. 283424.
PEOPLE v BURBRIDGE, No. 136271; Court of Appeals No. 273133.
PEOPLE v MICHAEL MORGAN, No. 136279; Court of Appeals No. 280871.
KELLY, J. I would remand this case for a hearing pursuant to People v
Ginther, 390 Mich 436 (1973).
PEOPLE v BULLITT, No. 136281; Court of Appeals No. 276426.
KELLY, J. I would remand this case to the trial court for resentencing.
GEROW v SAGINAW, No. 136293; Court of Appeals No. 269112.

Summary Disposition July 23, 2008:

PEOPLE v HIGHLAND, No. 128180. Pursuant to MCR 7.302(G)(1), in lieu

of granting leave to appeal, we remand this case to the Kent Circuit Court
for further proceedings not inconsistent with this order. The defendant
filed a timely motion to withdraw his plea. When that motion was denied,
he filed a timely motion for reconsideration. The circuit court did not
enter an order disposing of that motion. The August 31, 2004, letter in
the court file is not an order properly disposing of the motion, the docket
entries do not reflect any disposition of the motion, and the file otherwise
contains no such order. As a consequence, the reconsideration motion was
outstanding and the defendant’s case was pending on direct review when
the United States Supreme Court decided Halbert v Michigan, 545 US
605 (2005), entitling the defendant to the appointment of counsel.
Griffith v Kentucky, 479 US 314 (1987). The defendant’s application for
leave to appeal to the Court of Appeals should have been dismissed as
premature rather than as untimely.
In this case, no remand for the appointment of counsel is necessary,
however, because after the Court of Appeals dismissed the appeal, and
while the defendant’s application was pending in this Court, the circuit
court appointed attorney James D. Lovewell as counsel pursuant to
Halbert. Counsel may now file an application for leave to appeal with the
Court of Appeals, and/or any appropriate postconviction motions in the
trial court, within 12 months of the date of this order, as, at the time
defendant was denied counsel, he was entitled to file pleadings within 12
months of sentencing rather than six months. See the 2004 versions of
MCR 7.205(F)(3), MCR 6.311, and MCR 6.429. Counsel may include
among the issues raised, but is not required to include, those issues raised
by the defendant in his application for leave to appeal to this Court. In all
other respects, leave to appeal is denied, because we are not persuaded
that the questions presented should now be reviewed by this Court. We do
not retain jurisdiction. Court of Appeals No. 259652.
PEOPLE v OLSEN, No. 129223. Pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we vacate the April 13, 2004, order of the Lapeer
Circuit Court purporting to amend the defendant’s judgment of sentence
to add a provision barring contact with his minor children. We remand
882 482 MICHIGAN REPORTS
this case to the circuit court for reinstatement of the original judgment of
sentence, dated November 20, 2001. The circuit court lacked authority to
make substantive changes to the November 20, 2001, judgment of
sentence after entry, because it is the final judgment in the case. MCR
6.435(B). On remand, the circuit court shall notify the Michigan Depart-
ment of Corrections that the “no contact” order has been rescinded. In all
other respects, leave to appeal is denied, because the defendant has failed
to meet the burden of establishing entitlement to relief under MCR
6.508(D). This order does not prevent the prosecutor or the defendant’s
children from seeking to obtain a personal protection order that would
bar the defendant from having contact with his children. We do not retain
jurisdiction. Court of Appeals No. 259314.
SCHINDLER v ASPLUNDH TREE EXPERT COMPANY, No. 136016. Pursuant to
MCR 7.302(G)(1), in lieu of granting leave to appeal, we remand this case
to the Court of Appeals for consideration, as on leave granted, the issue
whether the Michigan Bureau of Workers’ Compensation has jurisdiction
over the controversy arising out of plaintiff’s injury, MCL 418.845. The
Court of Appeals shall address the remaining issues only if it determines
that jurisdiction in Michigan is proper. Court of Appeals No. 279296.
KELLY, J. I would deny leave to appeal.
PEOPLE v CHRISTIAN-BATES, No. 136162. Pursuant to MCR 7.302(G)(1),
in lieu of granting leave to appeal, we reverse in part the judgment of the
Court of Appeals and we reinstate the defendant’s convictions and
sentences. The trial court’s admitted error in cutting off defense coun-
sel’s closing argument to the jury was harmless where the defendant
admitted shooting at the victim, the only question for the jury was the
defendant’s intent, and the jury convicted the defendant of the lesser
offense of assault with intent to do great bodily harm. MCL
769.26. Court of Appeals No. 269919.
CAVANAGH and KELLY, JJ. We would deny leave to appeal.
WRIGHT v MICRO ELECTRONICS, INC, No. 136324. Pursuant to MCR
7.302(G)(1), in lieu of granting leave to appeal, we reverse in part the
judgment of the Court of Appeals and we remand this case to the Oakland
Circuit Court for reinstatement of the circuit court’s summary disposi-
tion order. The Court of Appeals erred by reinstating the plaintiff’s
defamation and false light invasion of privacy claims where the plaintiff
consented to the ongoing posting of the allegedly offending material,
Smith v Calvary Christian Church, 462 Mich 679 (2000), and where the
plaintiff admitted that the material was intended and taken as a “joke”
perpetrated by a coworker. The Court of Appeals erred by reinstating the
plaintiff’s negligence and intentional infliction of emotional distress
claims, where these are personal injury claims barred by the exclusive
remedy provision of the Worker’s Disability Compensation Act, MCL
418.131(1), and the plaintiff has presented no evidence that the defen-
dant employer intended to injure the plaintiff or had actual knowledge
that an injury was certain to occur and willfully disregarded that
knowledge. Travis v Dreis & Krump Mfg Co, 453 Mich 149 (1996). Court
of Appeals No. 274668.
 ACTIONS ON APPLICATIONS 883
Orders Granting Oral Argument in Cases Pending on Application for
Leave to Appeal July 25, 2008:

MOORE v SECURA INSURANCE, No. 135028. We direct the clerk to schedule

oral argument on whether to grant the application or take other
peremptory action. MCR 7.302(G)(1). The parties shall submit supple-
mental briefs within 42 days of the date of this order addressing: (1)
whether the benefits at issue were “overdue,” MCL 500.3148(1),
500.3142(2); (2) whether defendant “unreasonably refused to pay the
claim or unreasonably delayed in making proper payment,” MCL
500.3148(1); (3) assuming defendant unreasonably refused to pay, but
also assuming that only a portion of the benefits sought and awarded
were “overdue,” whether MCL 500.3148(1) permits recovery of attorney
fees for all benefits sought and recovered; and (4) whether the Court of
Appeals erred in suggesting that “it is . . . possible for an insurer to
unreasonably refuse to pay benefits even if the insurer is later deemed
not liable for them.” Reported below: 276 Mich App 195.
CAVANAGH J., did not participate due to a familial relationship with
counsel of record.
GRIEVANCE ADMINISTRATOR v COOPER, No. 135053. We direct the clerk to
schedule oral argument on whether to grant the application or take other
peremptory action. MCR 7.302(G)(1). The parties shall submit supple-
mental briefs within 42 days of the date of this order addressing: (1)
whether the Attorney Discipline Board erred in holding that the July 29,
2002, fee agreement was ambiguous as to whether the $4,000 minimum
fee was nonrefundable; (2) whether the agreement or the respondent’s
partial retention of the minimum fee after the client terminated the
relationship violated MRPC 1.5(a), MRPC 1.15(b), or MRPC 1.16(d); and
(3) whether the Attorney Discipline Board erred in finding the respon-
dent guilty of violating the Rules of Professional Conduct and/or in
declining to make its ruling prospective only, in light of (a) its acknowl-
edgments that it “provided something less than coherent guidance,” and
that “it was only recently, and only in a [September 29, 2005] memoran-
dum to the Michigan Supreme Court, that we expressed the view that
there really is no such thing as a nonrefundable retainer,” (b) the lack of
record evidence that such a memorandum was provided to the respon-
dent, and (c) the fact that “a lawyer of ordinary prudence,” at the time
the agreement was executed on July 29, 2002, must have been “left with
a definite and firm conviction that the fee is in excess of a reasonable fee”
in order for the Attorney Discipline Board to find a violation of MRPC
1.5(a).
Other persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae. ADB: 06-000036-GA.
PEOPLE v CHRISTIAN SIERRA, No. 135772. We direct the clerk to schedule
oral argument on whether to grant the application or take other
peremptory action. MCR 7.302(G)(1). At oral argument, the parties shall
address (1) what constitutes a “similar motive” to develop testimony
under MRE 804(b)(1); and (2) whether the trial court abused its
884 482 MICHIGAN REPORTS
discretion when it concluded that, at the 1999 trial of Domingo Sierra, in
which this defendant’s guilt was not directly at issue, the prosecution
lacked a “similar motive” to develop the testimony of the unavailable
declarant, Lisa Vega, by direct, cross, or redirect examination within the
meaning of MRE 804(b)(1). The parties may file supplemental briefs
within 42 days of the date of this order, but they should not submit mere
restatements of their application papers.
The Criminal Defense Attorneys of Michigan and the Prosecuting
Attorneys Association of Michigan are invited to file briefs amicus curiae.
Other persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae. Court of Appeals No. 277838.

Summary Dispositions July 25, 2008:

THOMAS v HAWKINS, No. 135830. Pursuant to MCR 7.302(G)(1), in lieu

of granting leave to appeal, we reverse the judgment of the Court of
Appeals. In Sellars v Lamb, 303 Mich 604, 610-611 (1942), this Court
held that “a situation in which a receiver would be even tempted to favor
one or another party cannot be tolerated.” (Emphasis in original.) Here,
plaintiffs produced sufficient evidence in support of their claim that the
sale of the Sweet Georgia Brown restaurant was tainted, or at least
appeared to be tainted, with a conflict of interest through Hollowell’s
representation of Wendy Hawkins, La-Van Hawkins, and La-Van Hawk-
ins’s business entities. Moreover, Hollowell’s refusal to include the
co-receiver in the bidding and sale process raised legitimate concerns
about his impartiality. Further, Hollowell did not procure any other bids
for the restaurant or secure appraisals, and Hollowell knew Frank Taylor,
the buyer, and gave him a $160,000 credit, thereby preferring Taylor over
secured creditors. Therefore, on the facts at the time of filing as
reconstructed at the remand hearing, this claim was not frivolous,
because plaintiffs had a good faith factual basis to raise the conflict of
interest issue. We remand this case to the Wayne Circuit Court for
further proceedings consistent with this order. Court of Appeals No.
271031.
KELLY, J. I would deny leave to appeal.
PEOPLE v MERCER, No. 135811. In lieu of granting leave to appeal, we
remand this case to the Ingham Circuit Court to rule on defendant’s
motion to quash the bindover. We direct that court to issue its ruling
within 28 days of the date of this order. We further order that court to file
with the clerk of the Supreme Court a transcript of the hearing and
related documents within 28 days of its ruling.
“This Court will not unnecessarily decide constitutional issues, People
v Riley, 465 Mich 442, 447; 636 NW2d 514 (2001), and it is an undisputed
principle of judicial review that questions of constitutionality should not
be decided if the case may be disposed of on other grounds. MacLean v
Michigan State Bd of Control for Vocational Ed, 294 Mich 45, 50; 292 NW
662 (1940).” J & J Constr Co v Bricklayers & Allied Craftsmen, Local 1,
468 Mich 722, 734 (2003). We decline to reach the constitutional
 ACTIONS ON APPLICATIONS 885
prearrest delay issue before the propriety of the bindover decision is
resolved. We retain jurisdiction. Court of Appeals No. 281006.
CAVANAGH, J. (dissenting). I dissent from the order remanding to the
Ingham Circuit Court to rule on defendant’s motion to quash the
bindover. While I believe the circuit court might well have dismissed on
the basis of defendant’s motion to quash the bindover, as all expert
medical opinion concerning cause of death that supported the prosecu-
tion’s theory had been stricken at the preliminary examination, the
circuit court did not address this motion. Instead, it granted defendant’s
motion to dismiss for prearrest delay, a ruling that is now presented for
our review. I would address the jurisprudentially significant issue of
whether due process may require dismissal of a prosecution where there
is actual and substantial prejudice, even if there is no evidence that the
prosecutor intentionally delayed bringing charges to gain a tactical
advantage. The length of the delay and potential for prejudice in this case
is tremendous. By failing to resolve this issue, this Court will potentially
subject defendant to an unfair trial. Even if the circuit court grants
defendant’s motion to quash the bindover on remand, defendant could be
subjected to another preliminary examination and potential trial, if the
prosecutor refiles this charge. Further, by evading the opportunity to
resolve the proper standard applicable to similar prearrest delay cases,
this Court potentially subjects many more defendants in this state to
stale, unfair prosecutions.
This case concerns the prosecution of defendant Charles Mercer for
the murder of his wife, Sally Mercer. Sally Mercer died in 1968; defendant
was not charged with open murder until 2006. There was an autopsy and
police investigation immediately following Sally Mercer’s death in
1968. The autopsy report noted that some of Sally Mercer’s blood vessels
exhibited a “surrounding collar of lymphocytes” and indicated that the
cause of her death was bulbar polio. Toxicological analysis on Sally
Mercer’s blood and stomach-content samples detected slightly high levels
of aspirin, but no other drugs. The toxicological analysis could have
detected propoxyphene in the blood if it had been present in sufficient
amount, but not in a very small amount.1
The Ingham County Prosecutor at the time disagreed with the cause
of Sally Mercer’s death indicated by the autopsy report. On the basis of
direct and circumstantial information available to him, the prosecutor
believed Sally Mercer’s death was a homicide and considered defendant
the suspect. However, no criminal prosecution was pursued at the time;
the prosecutor indicated that he did not believe he had sufficient evidence
to initiate criminal proceedings. In 1970, the samples of Sally Mercer’s
blood and stomach contents were returned to the Ingham County
Sheriff’s Department to be discarded.
The case lay dormant until 1995, when a cold-case team began
reinvestigating Sally Mercer’s death. Her body was exhumed in 2003, and
a second autopsy was performed. Samples of her tissue were tested by a

1
Propoxyphene is a component of Darvon Compound-65, a readily
available analgesic in the 1960s.
886 482 MICHIGAN REPORTS
toxicology laboratory. The tests showed that lethal levels of propoxyphene
were present in her tissue. The testing of her hair indicated that she had
been using propoxyphene regularly.
In June 2006, defendant was charged with open murder. The bill of
particulars specifically accused defendant of committing first-degree
murder by injecting Sally Mercer with lethal doses of propoxyphene. At
the lengthy preliminary examination, several expert witnesses testified
for the prosecution regarding the levels of propoxyphene found in Sally
Mercer’s tissues. The district court admitted the experts’ testimony for
the most part, but excluded the experts’ conclusions that acute pro-
poxyphene intoxication was the cause of Sally Mercer’s death pursuant to
Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579 (1993). The
district court found that there was probable cause to believe that
defendant committed the offense of murder, despite having “buckets of
reservations,” and bound defendant over for trial.
Defendant filed a motion to dismiss because of prearrest delay. The
circuit court granted defendant’s motion to dismiss, applying the test
used for speedy-trial violations. The Court of Appeals peremptorily
reversed in an order issued December 18, 2007. The panel indicated that
according to United States v Marion, 404 US 307 (1971), and People v
Crear, 242 Mich App 158 (2000), dismissal may not be granted for
prearrest delay unless there has been intent to delay by the prosecution
to gain a tactical advantage. Defendant appealed, and this Court ordered
oral argument on the application. 480 Mich 1148 (2008). Now, a majority
of this Court has decided to remand. I respectfully dissent. I would
reverse the Court of Appeals and reinstate the circuit court’s dismissal.
The Court of Appeals erred in concluding that dismissal may only be
granted for prearrest delay if there is evidence that the prosecutor
intentionally delayed arrest to gain a tactical advantage. In Marion, the
United States Supreme Court addressed the claim that pre-indictment
delay violated two defendants’ Sixth Amendment speedy-trial rights and
due-process rights. The Court rejected the speedy-trial claim, concluding
that the Sixth Amendment speedy-trial protection does not apply until a
person becomes an “accused”—in other words, when a person has been
indicted. Id. at 313. The Court also rejected the due-process claim as
premature, as the defendants asserted only that they faced the possibility
of prejudice at trial, not that actual prejudice had occurred. Id. at
325-326. Although the Court dismissed the due-process claims because
they were premature, it suggested that due process might require
dismissal of charges when actual prejudice occurs:
Since [the defendants] rely only on potential prejudice and the
passage of time between the alleged crime and the indict-
ment, . . . we perhaps need go no further to dispose of this
case . . . . Nevertheless, since a criminal trial is the likely conse-
quence of our judgment and since [the defendants] may claim
actual prejudice to their defense, it is appropriate to note here that
the statute of limitations does not fully define the [defendants’]
rights with respect to the events occurring prior to indictment.
Thus, the Government concedes that the Due Process Clause of
 ACTIONS ON APPLICATIONS 887
the Fifth Amendment would require dismissal of the indictment if
it were shown at trial that the pre-indictment delay in this case
caused substantial prejudice to [defendants’] rights to a fair trial
and that the delay was an intentional device to gain tactical
advantage over the accused. . . . However, we need not, and could
not now, determine when and in what circumstances actual
prejudice resulting from pre-accusation delays requires the dis-
missal of the prosecution. [Id. at 323-324.]

Marion establishes that a defendant must demonstrate actual prejudice,

not merely potential prejudice, to challenge prearrest delay as a violation
of due process. However, since the Marion defendants only alleged
potential prejudice, the Court’s discussion of a successful due-process
challenge was merely advisory. Thus, the Court’s reference to intentional
delay caused by the prosecution was dictum. Moreover, the statement
that prejudice and intentional delay would require dismissal was merely
a recitation of the government’s concession, and did not necessarily
annunciate the Court’s position. Accordingly, the Court of Appeals erred
in relying on Marion for the proposition that intentional delay by the
prosecution is necessary to a successful due-process challenge on the
basis of prearrest delay.
The Court squarely addressed the issue of determining whether a
prearrest delay violates due process in United States v Lovasco, 431 US
783 (1977), in which a defendant alleged that actual prejudice had
resulted from the prosecutor’s 18-month delay for further investigation.
The Court noted that “proof of actual prejudice makes a due process
claim concrete and ripe for adjudication,” not automatically valid.
Lovasco, supra at 789. Because proof of prejudice is “a necessary but not
sufficient element of a due process claim, . . . the due process inquiry
must consider the reasons for the delay as well as the prejudice to the
accused.” Id. at 790. The Court articulated the inquiry as “whether the
action complained of—here, compelling respondent to stand trial after
the Government delayed indictment to investigate further—violates
those ‘fundamental conceptions of justice which lie at the base of our
civil and political institutions,’ and which define ‘the community’s sense
of fair play and decency.’ ” Id. (citations omitted). The Court concluded
that “prosecutors do not deviate from ‘fundamental conceptions of
justice’ when they defer seeking indictments until they have probable
cause to believe an accused is guilty . . . .” Id. at 790-791. The Court
explained at length why no interests would be served by compelling
prosecutors to initiate prosecutions as soon as legally possible. In the
Court’s opinion, “investigative delay is fundamentally unlike delay
undertaken by the Government solely ‘to gain tactical advantage over
the accused,’ ” because “investigative delay is not so one-sided.” Id. at
795 (citations omitted). Therefore, “to prosecute a defendant following
investigative delay does not deprive him of due process, even if his
defense might have been somewhat prejudiced by the lapse of time.” Id.
at 796. Acknowledging that circumstances in which delay would require
dismissal cannot be determined abstractly, the Court left to the lower
888 482 MICHIGAN REPORTS
courts “the task of applying the settled principles of due process that we
have discussed to the particular circumstances of individual cases.” Id. at
797. It concluded that in the case at hand, the indictment should not
have been dismissed. Id.
The United States Supreme Court has not elaborated on the appli-
cable standard for determining due-process violations in prearrest delay
cases since Lovasco. There is a split of authority on the matter among
federal circuit courts and state courts, including our own Court of
Appeals. Some panels contend that there can be no due-process violation
unless the delay was intentionally caused by the prosecution to gain a
tactical advantage. See People v White, 208 Mich App 126 (1994), and
Crear, supra. Other lines of authority do not require evidence of
intentional delay, but, rather, consider whether the reasons for the delay
justify the resulting prejudice. See People v Bisard, 114 Mich App 784
(1982), and People v Adams, 232 Mich App 128 (1998).
I believe that constitutional due process does not require a showing
that the prosecution’s delay was an intentional device to gain a tactical
advantage. Rather, the intent of the prosecution is only a factor for the
court’s analysis. There was no evidence or allegations of intentional delay
in Lovasco, yet the Court did not dispose of the claim for that reason.
Instead, Lovasco examined at great length the prosecutor’s proffered
reasons for the delay—investigative strategy—and determined that the
resulting delay did not violate “ ‘fundamental conceptions of justice
which lie at the base of our civil and political institutions’ ” and which
define “ ‘the community’s sense of fair play and decency.’ ” Lovasco,
supra at 790 (citations omitted). Thus, the guiding principle of Lovasco,
which should direct our evaluation of this matter, is whether prosecuting
a defendant after a delay would violate fundamental conceptions of
justice in light of the reasons for delay. A showing of bad faith is not
necessary when the defendant has been so prejudiced by the delay that a
criminal trial would be fundamentally unfair.
The test that I would adopt seeks a balance between the competing
interests of the defendant and the government. Specifically, it would
balance the prejudice to the defendant with the reasons for the delay and
determine whether defendant can be given a fair trial. Once a defendant
has established prejudice, the burden of explaining delay would fall on
the prosecution. This approach was illustrated in Bisard, supra, which
held:
When a delay is deliberately undertaken to prejudice a defen-
dant, little actual prejudice need be shown to establish a due
process claim. Where, however, there is a justifiable reason for the
delay, the defendant must show more—that the prejudice resulting
from the delay outweighs any reason provided by the state. [Id. at
790.]

The defendant bears the initial burden of showing prejudice; once this is
shown, the prosecutor has the burden to show that the reason for the
delay is sufficient to justify whatever prejudice resulted. Id. at 791.
 ACTIONS ON APPLICATIONS 889
Regardless of whether we adopt the standard articulated by Bisard or
a different variation of a balancing test, the proper inquiry is best defined
by applying Lovasco’s principles to particular cases. This case would have
been an excellent vehicle because the prejudice is so stark. Most other
prearrest delay cases involve a matter of months or perhaps a couple of
years, not 40 years. In this case, there is no question that defendant
would be prejudiced by facing a trial in which all the original evidence has
been destroyed, the remaining scientific testing was done on a decom-
posed corpse, and many of the original witnesses have died or have faded
memories. It suffices to say that an evaluation of the prejudice to the
defendant weighs strongly in his favor. Meanwhile, the justification for
the delay is weak. There is no evidence of bad faith, but there is also no
indication that the delay was a necessary or even reasonable part of an
ongoing investigation. In fact, defendant was suspected of and investi-
gated for murder at the time of Sally Mercer’s death, but the prosecutor
at the time declined to bring charges. No new evidence arose after the
original investigation that would have reasonably prompted the reinves-
tigation of this cold case. All the evidence tested in 1995 was available in
1968, and the toxicology screening administered in 1968 could have
detected a significant level of propoxyphene if it had been present.
I am persuaded that, on these facts, the trial court did not abuse its
discretion in dismissing this case. The prejudice to this defendant far
outweighs the state’s interest in resuming pursuit of this prosecution
after a lengthy and unjustifiable delay. Accordingly, I would reverse the
decision of the Court of Appeals and reinstate the circuit court’s order
dismissing the case.
KELLY, J. I join the statement of Justice CAVANAGH.

Leave to Appeal Denied July 25, 2008:

ELLIS v FARM BUREAU INSURANCE COMPANY, No. 136069; Court of Appeals

No. 275240.
MARKMAN, J. (dissenting). Plaintiff’s rental property was damaged as a
result of arson. No one had been living there for several months because
plaintiff was in the process of renovating it. Defendant, plaintiff’s
insurer, refused to cover the damage because the policy excluded fire
damage when the property was “vacant or unoccupied beyond a period of
60 consecutive days.” After a bench trial, the trial court concluded that
defendant was liable. The Court of Appeals affirmed.
Plaintiff purchased the property on May 22, 2003. Within two to
three weeks, the tenant moved out. No one else lived on the property
between that time and the time of the fire on November 16, 2003. Thus,
nobody was living at the property at the time of the fire, nobody had lived
at the property for nearly six months before the fire, and nobody was
planning on living there in the foreseeable future after the fire. I would
hold that the property was “vacant or unoccupied beyond a period of 60
consecutive days,” and would reverse the Court of Appeals.
TAYLOR, C.J. I join the statement of Justice MARKMAN.
In re BERSAMINA (DEPARTMENT OF HUMAN SERVICES v MCCARTHY), No.
136836; Court of Appeals No. 281795.
890 482 MICHIGAN REPORTS
DRAKE v SCHANTZ-RONTAL, No. 135879; Court of Appeals No. 270225.
CAVANAGH, J. I would grant leave to appeal.
WEAVER, J .(dissenting). I dissent from the order and would reverse for
the reasons stated by the dissenting judge in the Court of Appeals as
stated below:
FITZGERALD, J. (dissenting).
I respectfully dissent.
In my opinion, the trial court’s order striking all of plaintiff’s
expert witnesses as a sanction for failing to comply with discovery
was an abuse of discretion. Because of the importance of expert
testimony in medical malpractice actions, the trial court’s order
resulted in the dismissal of plaintiff’s lawsuit. Although striking
witnesses is an appropriate sanction in some cases, it is important
to remember that the policy of this state favors the meritorious
determination of issues. Tisbury v Armstrong, [194] Mich App 19,
21; 486 NW2d 51 (1992). After reviewing the record, I do not
consider plaintiff’s counsel’s conduct so egregious or defendant’s
prejudice so substantial that imposing what is, in essence, the
most serious sanction available, is justified. See Dean v Tucker, 182
Mich App 27, 32-33; 451 NW2d 571 [(1990)] (discussing the factors
to be considered when determining the appropriate sanction). The
interests of justice would have been better served by limiting
plaintiff to calling only those witnesses identified in her October
25, 2005, and November 17, 2005, correspondences to defendant.
[Drake v Schantz-Rontal, unpublished dissenting opinion by
FITZGERALD, J., entered November 20, 2007 (Docket No. 270225).]
KELLY, J. I join the statement of Justice WEAVER.

Summary Dispositions July 29, 2008:

JONES v COMERICA, INC, No. 133880. Pursuant to MCR 7.302(G)(1), in

lieu of granting leave to appeal, we remand this case to the Workers’
Compensation Appellate Commission (WCAC) for reconsideration in
light of Stokes v Chrysler LLC, 481 Mich 266 (2008). The WCAC may
remand this case to the Board of Magistrates for the taking of additional
proofs and for further findings upon the request of a party. We do not
retain jurisdiction. Court of Appeals No. 272746.
CAVANAGH, J. I would deny leave to appeal.
WEAVER, J. I would grant leave to appeal.
PEOPLE v MCINTOSH, No. 135657. Pursuant to MCR 7.302(G)(1), in lieu
of granting leave to appeal, we vacate the Genesee Circuit Court’s orders
of August 31, 2006, and June 15, 2007, and we remand this case to the
Genesee Circuit Court for consideration of the merits of the defendant’s
motion for relief from judgment filed on December 27, 2005. Under the
circumstances of this case, the motion filed by the defendant on Septem-
ber 2, 2005, did not constitute a motion for relief from judgment under
 ACTIONS ON APPLICATIONS 891
MCR subchapter 6.500. Accordingly, the Genesee Circuit Court erred in
treating the defendant’s December 27, 2005, motion for relief from
judgment as a successive motion under MCR 6.502(G). We do not retain
jurisdiction. Court of Appeals No. 280312.
PEOPLE v RICHARD ARMSTRONG, No. 136327. Pursuant to MCR
7.302(G)(1), in lieu of granting leave to appeal, we vacate in part the
judgment of the Court of Appeals and we remand this case to the Otsego
Circuit Court for a hearing under People v Ginther, 390 Mich 436 (1973).
In all other respects, leave to appeal is denied, because we are not
persuaded that the remaining question presented should be reviewed by
this Court. We do not retain jurisdiction. Court of Appeals No. 272104.

Leave to Appeal Denied July 29, 2008:

In re MILES (MILES v SOLEUS HEALTHCARE SERVICES OF MICHIGAN, INC), No.

133829; Court of Appeals No. 270033.
PEOPLE V CHAVIES, No. 135710. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 278356.
PEOPLE v ELLIS, No. 135714. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 280255.
PEOPLE V DEANDRE CARTER, No. 135717. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 280883.
PEOPLE v JOEL WILLIAMS, No. 135726. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 281309.
PEOPLE V ETCHISON, No. 135727. The defendant’s motion for relief
from judgment is prohibited by MCR 6.502(G). Court of Appeals No.
280559.
PEOPLE v LUTZKE, No. 135735. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 279283.
PEOPLE v SAMUELS, No. 135739. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 277170.
PEOPLE v SIMON SIERRA, No. 135746. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 279899.
PEOPLE v MOENING, No. 135764. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 278768.
892 482 MICHIGAN REPORTS
PEOPLE v JERRY SMITH, No. 135765. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 277525.
PEOPLE v CORBIERE, No. 135779. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 281271.
PEOPLE v UNCAPHER, No. 135786. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 281084.
PEOPLE v GARY SMITH, No. 135795. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 282139.
PEOPLE v VINCENT COATES, No. 135798. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 279287.
PEOPLE v BALDWIN, No. 135802. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 279173.
PEOPLE v DEMETRIUS HARDRICK, No. 135813. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 280729.
PEOPLE v GUZMAN, No. 135821. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 279289.
PEOPLE v CARL HALL, No. 135846. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 280442.
PEOPLE V ST JOHN, No. 135854. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 279744.
PEOPLE v ANDRE JACKSON, No. 135856. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 280959.
PEOPLE v FREDDY HARDRICK, Nos. 135866 and 136578. The defendant
has failed to meet the burden of establishing entitlement to relief under
MCR 6.508(D). Court of Appeals Nos. 282228 and 282358.
PEOPLE v REDDELL, No. 135869. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 282057.
PEOPLE v RANDY GRAY, No. 135870. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 282290.
 ACTIONS ON APPLICATIONS 893
PEOPLE v NERO, No. 135882. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 281080.
PEOPLE v COOLEY, No. 135895. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 278846.
PEOPLE v KELLY, No. 135899. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 278997.
PEOPLE v LARHON JONES, No. 135902. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 279207.
PEOPLE v JAMES MOORE, No. 135907; Court of Appeals No. 273912.
PEOPLE v TROFATTER, No. 135908. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 281631.
PEOPLE v MCDONALD, No. 135913. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 279413.
PEOPLE v RICHARD MORGAN, No. 135927. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 281201.
PEOPLE v AUSSICKER, No. 135934. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 278788.
PEOPLE v EDWARDS, No. 135937. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 281982.
PEOPLE v BANNASCH, No. 135950. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 279098.
PEOPLE V FORD, No. 135951. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 279279.
PEOPLE v RENODDA HICKS, No. 135952. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 280852.
PEOPLE v MARISWAMY, No. 135956. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 279298.
894 482 MICHIGAN REPORTS
PEOPLE v JEFFREY CARTER, No. 135959. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 281571.
PEOPLE v HUNTER, No. 135966; Court of Appeals No. 280422.
PEOPLE v PEREZ, No. 135999; reported below: 277 Mich App 676.
PEOPLE v MAURICE COLEMAN, No. 136022; Court of Appeals No. 273057.
PEOPLE v JAMES HICKS, JR, No. 136071; Court of Appeals No. 282508.
PEOPLE v ARTHUR RODGERS, No. 136074; Court of Appeals No. 277412.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Conway, 474 Mich 1140 (2006).
PEOPLE v TONI HAYNES, No. 136076; Court of Appeals No. 280725.
PEOPLE v PITTMAN, No. 136106. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 279979.
In re ESTATE OF KOSTIN (WILLIAMS V KENT) and In re ESTATE OF KOSTIN
(WILLIAMS V KOSTIN TRUST), Nos. 136111 and 136112; reported below: 278
Mich App 47.
PEOPLE v JEWELL, No. 136117. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 282620.
PEOPLE v RADEMACHER, No. 136118. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 279599.
PEOPLE v VINCENT JONES, No. 136119. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 282616.
PEOPLE v NATHANIEL SMITH, No. 136122; Court of Appeals No. 283435.
PEOPLE v LOR, No. 136133. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 282335.
PEOPLE V OSDEMOND BELL, No. 136140; Court of Appeals No. 283198.
PEOPLE V MICHAEL ALLEN WILLIAMS, No. 136143; Court of Appeals No.
282899.
PEOPLE V SALEM, No. 136158; Court of Appeals No. 279704.
PIESER V SARA LEE BAKERY, Nos. 136159 and 136160; Court of Appeals
No. 275608.
PEOPLE V JOSEPH MILLER, No. 136168; Court of Appeals No. 282553.
PEOPLE V FERGUSON, No. 136176; Court of Appeals No. 274614.
PEOPLE V BOWERS, No. 136197; Court of Appeals No. 282903.
 ACTIONS ON APPLICATIONS 895
PEOPLE V MC FADDEN, No. 136200; Court of Appeals No. 283768.
PEOPLE V POUNCY, No. 136202; Court of Appeals No. 269298.
MICHIGAN COMMUNITY ACTION AGENCY ASSOCIATION V PUBLIC SERVICE
COMMISSION, No. 136207; Court of Appeals No. 267194.
PEOPLE V BRADBURY, No. 136208; Court of Appeals No. 282867.
PEOPLE V HOPKINS, No. 136210; Court of Appeals No. 283077.
PEOPLE V TROOST, No. 136216; Court of Appeals No. 282987.
PEOPLE V VICTORIA LOVE, No. 136232; Court of Appeals No. 283530.
PEOPLE V CARR, No. 136233; Court of Appeals No. 273778.
PEOPLE V RALPH LEWIS, No. 136241; Court of Appeals No. 274005.
CONTINENTAL TEVES, INC V WESCAST INDUSTRIES CORDELE, LLC and WES-
CAST INDUSTRIES
CORDELE, LLC v CONTINENTIAL TEVES INC, Nos. 136243 and
136244; Court of Appeals Nos. 282073 and 282074.
PEOPLE V BROGLIN, No. 136245; Court of Appeals No. 274342.
PEOPLE V DENISON, No. 136246; Court of Appeals No. 270415.
PEOPLE V HUMPHREYS, No. 136249; Court of Appeals No. 283836.
PEOPLE V JAMES WHITE, JR, No. 136255; Court of Appeals No. 274304.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Houlihan, 480 Mich 1165 (2008).
PEOPLE V DEVAUGHN BROWN, No. 136258; Court of Appeals No. 283301.
PEOPLE V BELISLE, No. 136265; Court of Appeals No. 280948.
PEOPLE V LEMONS, No. 136268; Court of Appeals No. 273058.
In re LESLIE E TASSELL TRUSTS (COTTER V TASSELL ESTATE), No. 136272;
Court of Appeals No. 279543.
GRIEVANCE ADMINISTRATOR V SWANSON, No. 136273; ADB No. 0411-AI-
000147.
KORN FAMILY LIMITED PARTNERSHIP V HARBOR BUILDING COMPANY, LLC,
Nos. 136274 and 136276; Court of Appeals No. 272813.
PEOPLE V MANOKU, No. 136280; Court of Appeals No. 270880.
PEOPLE V COREY PATTERSON, No. 136287; Court of Appeals No. 283660.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Conway, 474 Mich 1140 (2006).
PEOPLE V JACINTO PENA, No. 136289; Court of Appeals No. 275508.
PEOPLE V JAMAHL ARMSTRONG, No. 136291; Court of Appeals No. 283914.
896 482 MICHIGAN REPORTS
PEOPLE V BENNIE BRYANT, No. 136295; Court of Appeals No. 270900.
BAUTISTA V MIRESCO PROMOTIONAL SALES, INC, No. 136296; Court of
Appeals No. 280858.
PEOPLE V DAMEKO VESEY, No. 136303; Court of Appeals No. 266618.
PEOPLE V SALLEE, No. 136308; Court of Appeals No. 283831.
PEOPLE V CLIFTON, No. 136309; Court of Appeals No. 283264.
PEOPLE V LEE MANUEL, No. 136312; Court of Appeals No. 275209.
PEOPLE V GARNER, No. 136315; Court of Appeals No. 277019.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Conway, 474 Mich 1140 (2006).
PEOPLE V BEDINGER, No. 136317; Court of Appeals No. 283920.
PEOPLE V NGUYEN, No. 136318; Court of Appeals No. 274031.
RUBY & ASSOCIATES, PC v GEORGE W SMITH & COMPANY, PC, No. 136319;
Court of Appeals No. 274348.
PEOPLE V DERRICK THOMPSON, No. 136330; Court of Appeals No. 272628.
PEOPLE V JERRON DAVIS, No. 136333; Court of Appeals No. 275478.
PEOPLE V KEVIN YOUNG, No. 136334; Court of Appeals No. 275881.
PEOPLE V STENNIS, No. 136344; Court of Appeals No. 283646.
PEOPLE V DENNIS VESEY, No. 136345; Court of Appeals No. 266617.
PEOPLE V OLDECK, No. 136346; Court of Appeals No. 283760.
PEOPLE V TERENCE ROBINSON, No. 136347; Court of Appeals No. 283755.
PEOPLE V BERGER, No. 136348; reported below 277 Mich App 700.
PEOPLE V LARSON, Nos. 136354 and 136355; Court of Appeals Nos.
283581 and 283802.
RODRIGUEZ V MERCHANT, No. 136356. The plaintiffs may file a delayed
application for leave to appeal in the Court of Appeals on or before
October 24, 2008. See MCR 7.205(F)(3). Court of Appeals No. 282671.
PEOPLE V STEVEN BROWN, No. 136361; Court of Appeals No. 283615.
PEOPLE V JAMES WALKER, No. 136362; Court of Appeals No. 283832.
PEOPLE V DONALD PALMER, No. 136363; Court of Appeals No. 282334.
PEOPLE V ORVIS, No. 136364; Court of Appeals No. 275839.
PEOPLE V SACHS, No. 136365; Court of Appeals No. 275560.
PEOPLE V BEAN, No. 136366; Court of Appeals No. 271585.
 ACTIONS ON APPLICATIONS 897
KOROI V UNITED SERVICES AUTOMOBILE ASSOCIATION, No. 136368; Court of
Appeals No. 281054.
PEOPLE V SOURS, No. 136371; Court of Appeals No. 275406.
PEOPLE V CARPENTER, No. 136372; Court of Appeals No. 275837.
PEOPLE V MAJEWSKI, No. 136381; Court of Appeals No. 283622.
PEOPLE V DEXTER HARRIS, No. 136387; Court of Appeals No. 276767.
PEOPLE V ERIC GARLAND, No. 136389; Court of Appeals No. 283585.
PEOPLE V WILLAVIZE, No. 136390; Court of Appeals No. 283431.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Conway, 474 Mich 1140 (2006).
PEOPLE V ROBERT FISHER, No. 136391; Court of Appeals No. 274580.
PEOPLE V FENSTERMAKER, No. 136392; Court of Appeals No. 284003.
PEOPLE V ZOICA, No. 136395; Court of Appeals No. 270881.
PEOPLE V HASBERRY, No. 136396; Court of Appeals No. 275685.
PEOPLE V SHAW, No. 136397; Court of Appeals No. 283617.
PEOPLE V SHERRY, No. 136398; Court of Appeals No. 281892.
PEOPLE V LAZZERICK LONG, No. 136400; Court of Appeals No. 282731.
PEOPLE V YARBROUGH, No. 136402; Court of Appeals No. 283257.
HARRIS V DAVIS, No. 136416; Court of Appeals No. 276880.
PEOPLE V HAWKINS, No. 136421; Court of Appeals No. 275841.
HARVEY V CURTIS, No. 136424; Court of Appeals No. 272433.
GRAY V DETROIT MUNICIPAL PARKING DEPARTMENT, No. 136432; Court of
Appeals No. 274356.
PEOPLE V BENSON JACKSON, No. 136435; Court of Appeals No. 276351.
PEOPLE V SAILLOR, No. 136439; Court of Appeals No. 282052.
PEOPLE V MERKO, No. 136440; Court of Appeals No. 271800.
MUNSTER V CITY OF BATTLE CREEK, No. 136441; Court of Appeals No.
284666.
PEOPLE V DESMOND MATTHEWS, No. 136445; Court of Appeals No.
283680.
PEOPLE V BUSSLER, No. 136446; Court of Appeals No. 283834.
PEOPLE V GREGORY WALKER, No. 136448; Court of Appeals No. 275656.
PEOPLE V SHAWNTAE ROGERS, No. 136450; Court of Appeals No. 278576.
PEOPLE V SINGLETON, No. 136452; Court of Appeals No. 283307.
898 482 MICHIGAN REPORTS
PEOPLE V KING, No. 136462; Court of Appeals No. 275194.
PEOPLE V CLEVELAND ROGERS, No. 136463; Court of Appeals No. 274615.
PEOPLE V DEXTER, No. 136473; Court of Appeals No. 284152.
PEOPLE V KENNETH ANDERSON, No. 136474; Court of Appeals No.
275080.
PEOPLE V UNDERWOOD, No. 136484; reported below: 278 Mich App 334.
PEOPLE V EDWARDS, No. 136491. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 280609.
PERRY V BON SECOURS COTTAGE HEALTH SERVICES, No. 136501; Court of
Appeals No. 281557.
SHANKSTER V FARM BUREAU MUTUAL INSURANCE COMPANY OF MICHIGAN, No.
136503; Court of Appeals No. 284850.
RUSSELL PLASTERING COMPANY V MICHIGAN CONSTRUCTION INDUSTRY MU-
TUAL INSURANCECOMPANY, No. 136508; Court of Appeals No. 274049.
PEOPLE V GJELDUM, No. 136510; Court of Appeals No. 283874.
PEOPLE V JOBEY HENDERSON, No. 136527; Court of Appeals No. 279861.
GOULET V ANN ARBOR PUBLIC SCHOOLS, No. 136534; Court of Appeals No.
281685.
PEOPLE V HARRINGTON, No. 136583. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 281560.

Reconsiderations Denied July 29, 2008:

DOWNS V KEEBLER, No. 132893. Summary disposition entered at 480

Mich 1081. Court of Appeals No. 253611.
KELLY, J. I would grant reconsideration and, on reconsideration, would
grant leave to appeal.
KORPAL V SHAHEEN, No. 133717. Leave to appeal denied at 480 Mich
1193. Court of Appeals No. 266418.
CAVANAGH, WEAVER, and KELLY, JJ. We would grant the motion for
reconsideration.
PEOPLE V YOSHEYAH THOMAS, No. 134148. Leave to appeal denied at 480
Mich 1185. Court of Appeals No. 272334.
PEOPLE V BEEMAN, No. 134338. Leave to appeal denied at 481 Mich
851. Court of Appeals No. 275107.
KELLY, J. I would grant the motion for reconsideration.
 ACTIONS ON APPLICATIONS 899
PEOPLE V CARSWELL, No. 134578. Leave to appeal denied at 480 Mich
1185. Court of Appeals No. 268081.
DOBBELAERE V AUTO-OWNERS INSURANCE COMPANY, Nos. 134600 and
134601. Leave to appeal denied at 480 Mich 1169. Court of Appeals Nos.
270200 and 270275.
GOODMAN V DAHRINGER, No. 134696. Summary disposition entered at
481 Mich 882. Court of Appeals No. 273680.
PEOPLE V HERNANDEZ-ORTA, No. 134756. Summary disposition entered
at 480 Mich 1101. Court of Appeals No. 267971.
WEAVER, J. I would grant the motion for reconsideration.
PEOPLE V MACLEAN, No. 135245. Leave to appeal denied at 480 Mich
1141. Court of Appeals No. 270525.
KELLY, J. I would grant the motion for reconsideration.
PEOPLE V BASAT, No. 135323. Leave to appeal denied at 480 Mich
1186. Court of Appeals No. 277082.
PEOPLE V HINDS, No. 135372. Leave to appeal denied at 480 Mich
1186. Court of Appeals No. 278367.
BECK V TGM BROADBAND CABLE SERVICES, No. 135521. Leave to appeal
denied at 480 Mich 1187. Court of Appeals No. 277384.
TYSON FOODS, INC V DEPARTMENT OF TREASURY, No. 135557. Leave to
appeal denied at 480 Mich 1137. Court of Appeals No. 272929.
GROSS V LANDIN, No. 135674. Leave to appeal denied at 480 Mich
1188. Court of Appeals No. 275077.
PEOPLE V SEARCY, Nos. 135697 and 135698. Leave to appeal denied at
480 Mich 1189. Court of Appeals Nos. 282489 and 282491.
KELLY, J. I would grant reconsideration and, on reconsideration, would
grant leave to appeal for the reasons set forth in my dissenting statement
in People v Conway, 474 Mich 1140 (2006).
DELL V ST CLAIR CIRCUIT COURT, No. 135745. Leave to appeal denied at
481 Mich 877. Court of Appeals No. 281475.
PEOPLE V BULEY, No. 135757. Leave to appeal denied at 480 Mich
1189. Court of Appeals No. 271801.
GAUTHIER V D & T EMERALD CREEK, INC, No. 135782. Leave to appeal
denied at 481 Mich 877. Court of Appeals No. 278654.
PEOPLE V TEMPLETON, No. 135785. Leave to appeal denied at 480 Mich
1190. Court of Appeals No. 271082.
PEOPLE V RIGEL, No. 135804. Leave to appeal denied at 480 Mich
1190. Court of Appeals No. 273235.
PEOPLE V SWANIGAN, No. 135806. Leave to appeal denied at 481 Mich
877. Court of Appeals No. 273671.
900 482 MICHIGAN REPORTS
PEOPLE V SEAN WILSON, No. 135814. Leave to appeal denied at 480 Mich
1190. Court of Appeals No. 279559.
PEOPLE V ANTHONY JAMES, No. 135822. Leave to appeal denied at 480
Mich 1190. Court of Appeals No. 270194.
PEOPLE V EDWARD THOMAS, No. 135968. Leave to appeal denied at 480
Mich 879. Court of Appeals No. 274469.

Leave to Appeal Granted July 30, 2008:

In re ROOD (DEPARTMENT OF HUMAN SERVICES V ROOD), No. 136849. The
parties shall include among the issues to be briefed: (1) whether the
Department of Human Services made adequate efforts to contact the
respondent-appellee father, who had given contact information to the
court at the June 8, 2006, hearing concerning the rights of the child’s
natural mother; (2) whether the Department of Human Services was
under a legal duty, imposed by statute or court rule, to conduct a home
study or to make other efforts to place the minor child with the
respondent father, given the unique circumstances of this case; (3)
whether the existence of any legal duty was mitigated by the respondent
father’s failure to contact the agency for over one year, failure to pursue
visitation with his child who had been placed in foster care, or his
domestic-violence convictions involving the child’s mother; and (4)
whether the failure of the family court to send notices of the proceedings
to the correct address, or the failure of the Department of Human
Services to make diligent efforts to contact the respondent father at the
address and telephone number provided by him at the June 8, 2006,
adjudication hearing for the respondent mother, precluded the court from
terminating respondent father’s parental rights.
We further order the Mason Circuit Court, Family Division, utilizing
a procedure analogous to that described in Administrative Order No.
2003-3, to determine no later than August 12, 2008, whether the
respondent-appellee is indigent and, if so, to appoint attorney Jeffrey C.
Nellis, if feasible, to represent the respondent in this Court. If the
respondent is not indigent, he must retain his own counsel.
The clerk of the Court is directed to place this case on the October
2008 session calendar for argument and submission. Petitioner-
appellant’s brief and appendix must be filed no later than August 25,
2008, and respondent-appellee’s brief and appendix, if appellee chooses to
submit an appendix, must be filed no later than September 15, 2008.
Persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae, to be filed no later than September 24, 2008. Court of
Appeals No. 280597.

Summary Disposition July 30, 2008:

PEOPLE V DEXTER COOPER, No. 136859. Pursuant to MCR 7.302(G)(1), in

lieu of granting leave to appeal, we reverse the June 27, 2008, order of the
 ACTIONS ON APPLICATIONS 901
Court of Appeals and reinstate the stay imposed by the Court of Appeals
on August 27, 2007. Court of Appeals No. 280024.
CAVANAGH, J. I would deny leave to appeal.
KELLY, J. I would deny leave to appeal because I do not believe that the
stay should be reinstated.

Leave to Appeal Denied July 31, 2008:

In re MILTENBERGER (EIFLER V SWARTZ), No. 133847; reported below: 275

Mich App 47.
KELLY, J. (concurring). I concur in Justice CORRIGAN’s statement with
one exception. I find her discussion of the feasibility of gender-neutral
dower interesting but irrelevant to intermediate-scrutiny analysis. The
current dower statutes pass intermediate scrutiny on their own merits,
not because a gender-neutral alternative might be impossible.
Justice CORRIGAN’s questions about the feasibility of a future alterna-
tive to gender-based dower stem from the following proposition in Orr v
Orr: “Where, as here, the State’s compensatory and ameliorative pur-
poses are as well served by a gender-neutral classification as one that
gender classifies and therefore carries with it the baggage of sexual
stereotypes, the State cannot be permitted to classify on the basis of
sex.”1 Orr invalidated the Alabama alimony statute that required hus-
bands, but not wives, to pay alimony.2 The Court concluded that the
statute already provided for individualized hearings to determine need;
therefore, there was no reason “to use sex as a proxy for need.”3 Orr dealt
with a statute that provided for a gender-neutral determination of need.
The Court had no reason to consider whether a gender-based statute
might pass constitutional muster if a future gender-neutral scheme were
not feasible. Therefore, Orr does not require us to address in this case the
feasibility of a hypothetical gender-neutral dower statute.
Justice CORRIGAN acknowledges that the feasibility of gender-neutral
dower is best left initially to the Legislature. Moreover, the issue is not
now before the Court. The parties neither briefed nor argued the
feasibility of a gender-neutral dower statute in Michigan. On the con-
trary, they proceeded on the assumption that gender-neutral dower was
a possible alternative to the existing dower statutes. They disagreed only
about whether this Court should read the current statutes in gender-
neutral terms.
Justice CORRIGAN asserts that gender-neutral dower is likely impos-
sible. She reasons that the Legislature cannot affect the vested rights in
real property to which a widower’s dower right would attach if it passed
a gender-neutral dower statute. However, this problem would occur only
if this hypothetical statute applied retroactively. There is no reason to
speculate about a problem that may not occur.

1
Orr v Orr, 440 US 268, 283 (1979).
2
Id. at 271.
3
Id. at 281.
902 482 MICHIGAN REPORTS
I agree with Justice CORRIGAN that the current dower statutes survive
intermediate scrutiny. I express no opinion about the feasibility of a
hypothetical gender-neutral dower statute, as that issue is not before the
Court.
CORRIGAN, J. (concurring). I concur, but write separately to respond to
the dissent. I conclude that the gender distinction in Michigan’s dower
scheme is adequately justified by the well-documented relative economic
positions of widows and widowers in this state. Therefore, the Court of
Appeals correctly concluded that dower survives equal protection review
and declined to deprive the Legislature of this historical tool to aid
widows, who, as a group, continue to occupy less favorable economic
positions than their male counterparts.

I. FACTS AND PROCEEDINGS

The dissent adequately recounts the straightforward facts of this case

and the proceedings in the lower courts. I note only that the Attorney
General has not participated in this case on behalf of the state of
Michigan. It would have been useful to the Court to have had this issue
briefed by the Attorney General.1 I regret that the trial court did not
exercise its discretion under MCR 2.209(D), which permits the court to
“require that notice be given to the Attorney General” when “the validity
of a Michigan statute . . . is in question in an action to which the state or
an officer or agency of the state is not a party . . . .”

II. STANDARD OF REVIEW

The dissent and I agree that intermediate scrutiny applies to equal

protection review of laws that discriminate on the basis of gender. “To
withstand constitutional challenge, . . . classifications by gender must
serve important governmental objectives and must be substantially
related to achievement of those objectives.” Craig v Boren, 429 US 190,
197 (1976). But, as I discuss further in part III(C) of this statement, this
standard is a source of controversy, and the United States Supreme Court
has provided insufficient guidance concerning its implementation.

1
The dissent criticizes me for “eas[ing] the burden on the proponent of
the classification by supplying data and arguments in support of the
classification beyond that which the proponent presented.” Post at 945.
But I find it necessary to do so in response to the dissent’s contention
that we should declare a law unconstitutional on the basis of a defense
offered by a single private attorney and without the benefit of briefing
from the Attorney General on behalf of the state. Moreover, as I discuss
further below, United States Supreme Court precedent illustrates that it
is appropriate to rely on relevant data when considering the constitu-
tionality of gender-based classifications.
 ACTIONS ON APPLICATIONS 903
I conclude that, under the intermediate scrutiny standard, dower
withstands review because it is substantially related to important objec-
tives: remedying economic discrimination against women and protecting
needy spouses. The dissent’s point is well-taken, however, that gender is
an imperfect proxy for need among surviving spouses. Therefore, dower
also appears to reflect gender stereotypes. But finding dower unconsti-
tutional for this reason essentially amounts to review under the strict
scrutiny standard reserved for laws discriminating on the basis of race or
national origin. I acknowledge the dissent’s comparison of my analysis to
rational basis review, because I find it necessary to consider real-world
data to determine how well-suited dower is to its goals. But because
real-world differences between men and women are the foundation of the
intermediate scrutiny standard, intermediate scrutiny is unworkable if it
requires us to presume that a gender-based distinction is unconstitu-
tional, yet then eschew available statistics comparing the economic and
social circumstances of men and women to rebut the presumption, as the
dissent urges. Thus, until the United States Supreme Court provides
further guidance on implementing intermediate scrutiny, I would not
hold unconstitutional our Legislature’s choice to retain the ancient right
of dower even though it unavoidably reflects gender stereotypes.

III. ANALYSIS

A. IMPORTANT GOVERNMENTAL OBJECTIVES

The dissent and I agree that dower is aimed at important governmen-

tal objectives, because it provides support for needy surviving spouses
and a remedy for past economic discrimination and lower earnings of
women, which contribute to the higher vulnerability of women to poverty
or low income after the death of a spouse. See post at 933 (stating that
dower protects needy spouses and serves “the related purpose of com-
pensating women for past discrimination and lower earnings during
marriage, which often left them more vulnerable than men following the
death of a spouse”). “[A]ssisting needy spouses is a legitimate and
important governmental objective.” Orr v Orr, 440 US 268, 280 (1979).
“Reduction of the disparity in economic condition between men and
women caused by the long history of discrimination against women” has
also been recognized as “an important governmental objective.” Califano
v Webster, 430 US 313, 317 (1977); see also United States v Virginia, 518
US 515, 533 (1996) (VMI), citing Webster.2 I concur generally in the
dissent’s analysis of the constitutionally sound objectives of Michigan’s

2
In her brief, petitioner Sharon Miltenberger expands on the proposi-
tion that women earn less than their husbands during the course of their
marriages. She observes that discrimination in the workplace and the
traditional roles of married women have resulted in wives making
significant noneconomic contributions to their husbands’ estates. This
may be particularly true of past generations of women who nonetheless
904 482 MICHIGAN REPORTS
dower statutes. My only qualm with the dissent’s analysis lies in its
assertion that the “statutes at issue here are little more than recitations
of the common law; thus, whether dower under these statutes serves a
different or broader purpose than dower served at common law is
somewhat questionable.” Post at 932.
Without question, dower is a longstanding historical right that
preexisted even the formation of our nation and that has become
embedded in Michigan statutory and common law. The right of dower is
“ ‘so ancient, that its origin is now lost in doubt and uncertainty.’ ” Pfau
v Moseley, 9 Ohio St 2d 13, 20 (1966), quoting Dunseth v Bank of the
United States, 6 Ohio 77 (1833). As one scholar noted:
From very early times, English law assured to a wife certain
rights in her husband’s property if she survived him. For centuries
those rights have been known as dower. Although the word itself is
of French origin, the provision in English law long antedates the
coming of the Normans, and its precise beginnings are lost in the
dim antiquities of the Germanic law which prevailed in England
before the Conquest. The origins of dower take us back to a period
in Teutonic history when the bridegroom made a payment to the
kinsmen of the bride, in return for the rights over her which he
acquired by the marriage, and gave to her a morning [sic] gift for
her support if she outlived him. [Haskins, The development of
common law dower, 62 Harv L R 42, 42 (1948).]

We do know that by at least 1225 the right of dower provided a widow

with the right to a 1/3 share of her husband’s property. The Magna Carta
of 1225 stated: “[L]et there be assigned to [the widow] for her dower a
third part of all the land of her husband which was his in his life, unless
she was endowed of less at the church door.”3 Michigan recognized the
common law right of dower in May v Rumney, 1 Mich 1 (1847). In closing
the opinion of the Court, Justice Wing stated: “I can see no reason why
courts should not now, as formerly, look upon the claim of dower with
great favor, and maintain the truth of what Lord Coke says was
commonly said, that three things be favored in the law—life, liberty and
dower.” Id. at 13 (emphasis in original). Because dower is so deeply

face widowhood in the twenty-first century. Petitioner asserts that dower

“protects the contribution the wife makes to her husband’s estate.”
3
Magna Carta of 1225, as quoted in Comment, The ins and outs of the
Alabama elective share, 58 Ala L R 1161, 1162 (2007). The Magna Carta
of 1297 similarly stated that “[a]s dower [the widow] will be assigned the
third part of all the lands of her husband which were his during his
lifetime, save when she was dowered with less at the church door.”
National Archives and Records and Records Administration, Featured
Documents <http://www.archives.gov/exhibits/featured_documents/
magna_carta/translation.html> (accessed July 29, 2008).
 ACTIONS ON APPLICATIONS 905
engrained in historical Michigan and English law, we should not under-
estimate the significance of questioning its continued viability.
But, contrary to the dissent’s suggestion, the historical nature of
dower does not necessarily render its goals or means outdated. Recent
history suggests that Michigan’s policy-makers have concluded that
women continue to rely on the historic right of dower, which is a useful
means to various related ends that have evolved over time as women’s
rights and roles have changed. As the dissent recognizes, Michigan’s
citizens explicitly considered and retained dower both at the state’s most
recent constitutional convention in 1961 and when the Estates and
Protected Individuals Code (EPIC), MCL 700.1101 et seq., was enacted in
1998. Although dower has operated in largely the same manner over
time, we should not assume that the objectives it is intended to serve are
unchanging.
The delegates to the 1961 Michigan constitutional convention debated
at length the modern status of dower and whether it should be abol-
ished.4 Like the dissent today, post at 938-939, some delegates suggested
that dower should be abolished because its protections are minimal in
modern times. Bay County delegate Milton Higgs suggested that

dower in itself is not a valuable thing to the wife, in view of her

other rights. She can elect to take against the will, she has rights
that are superior to this, and as Mr. [Robert] Tubbs has said, it’s
merely a right to the income to 1/3 of the property for life. This is
a cumbersome thing to handle in property law. [2 Official Record,
Constitutional Convention 1961, p 2445.]

Other delegates stated that they would not abolish dower precisely because
it provides worthwhile minimum protection for women. Washtenaw County
delegate Joseph Lawrence, Jr., observed that, for spouses who occupy
traditional roles, dower “mean[s] that a husband who normally takes care of
things cannot get rid of all his property without his wife having to sign off.”
Id. Perhaps most tellingly, Wayne County delegate Ann Donnelly argued
that “[i]nchoate dower rights are of vital interest to the women” even before
their husbands’ deaths and protect “a married woman in the event of a
divorce action.” Id. She explained:

I, regrettably, have been involved in representing women in

this situation and I know very well it is most vital that we have this
signature and this dower clause to protect them in the event that
they are having difficulties with their husbands.

4
I offer evidence of policy-makers’ debates about dower solely to gain
insight into their genuine reasons for the gender-based classification in
order to avoid justifications that are merely “hypothesized or invented
post hoc in response to litigation.” VMI, 518 US at 533 (1996); see also
post at 932-933.
906 482 MICHIGAN REPORTS
[The husband] may alienate this property—not only the home-
stead, but any other land. He may have $1 million in stocks; but he
may have it in apartments, he may have it in land, and the woman
who maybe has helped him to acquire this will have no control and
no strings whatsoever if they are having difficulty. Now, if there is
no marital difficulty, the husband can readily get his wife’s
signature. If there is marital difficulty and the husband wishes to
get rid of the wife and get rid of his property from her name and
her control, it can be accomplished if you will adopt [the amend-
ment abolishing dower.] [Id.][5]

In light of this discussion, the delegates ultimately decided that the

Legislature was in the best position to gauge the need for dower, and the
wisdom of retaining it, over time. Id. at 3151. Accordingly, although our
1963 constitution abolishes the disabilities associated with coverture, it
does not abolish dower, but explicitly provides that “[d]ower may be
relinquished or conveyed as provided by law.” Const 1963, art 10, § 1.6
The Legislature affirmatively decided to retain dower in 1998 when it
enacted EPIC in 1998 PA 386. EPIC was modeled on the Uniform
Probate Code, which expressly abolished dower. See Uniform Probate
Code, § 2-112, 8 ULA pt 1, p 90. The original Senate bill that proposed
EPIC likewise abolished dower. 1997 SB 209, §§ 2112, 8102. But, in
September 1998, the House of Representatives voted to retain dower and
allow a widow to elect it, and the Senate adopted the House amendment.
1998 Journal of the House 2211; 1998 Journal of the Senate 1822-1823,
1830. The historical record provides scant information concerning legis-
lators’ reasons for retaining dower, but clearly they considered the
ongoing merits of dower, and a majority of legislators concluded that it
still served important objectives. Further, the Legislature continues to
reevaluate the benefits of our dower scheme over time; HB 5587,
introduced in 2007, would abolish dower and is just one of several bills
introduced since 1999 that would amend the dower statutes.
In sum, it is beyond question that the historical right of dower
continues to serve important objectives of the state of Michigan. More-
over, our Legislature is in the best position to evaluate the ongoing

5
Donnelly’s comments, made in 1962, apply uncannily to the case
before us, in which James Miltenberger transferred all his real property
—his office and the marital home—shortly before his death and without
obtaining Sharon Miltenberger’s signature; he did so only after the
couple began having marriage difficulties and planning to divorce. The
property certainly would have been marital property subject to division
during the divorce proceedings.
6
Note that the delegates’ Address to the People accompanying the new
constitution does not comment on the retention of dower or the changes
to art 10, § 1. 2 Official Record, Constitutional Convention 1961, pp
3355-3362.
 ACTIONS ON APPLICATIONS 907
relevance of dower, which may be especially suitable in Michigan. As I
discuss further below, economic disparity between the sexes remains
pronounced in Michigan: among the 50 states, the District of Columbia,
and Puerto Rico, Michigan is one of only eight states with a female-to-
male earnings ratio of less than 72 percent, as compared to the national
average of 77.3 percent.7

B. SUBSTANTIAL RELATION TO ACHIEVEMENT OF OBJECTIVES

The documented evidence of economic disparity between men and

women—and especially older men and women, who are more likely to
suffer the loss of their spouses—bears directly on whether dower is
substantially related to our Legislature’s goals. Significantly, however,
dower by its nature is not aimed broadly at remedying all economic
disparity between the sexes. The dower scheme inherently excludes all
unmarried men and women; as an element of the laws governing
inheritance, dower relates only to surviving spouses’ rights to each
other’s property. Accordingly, dower aims to protect needy spouses and
provide a remedy for economic discrimination against women in one
distinct arena: spousal property rights upon the death of a spouse. Thus,
dower reflects disparities between widows and widowers by discriminat-
ing on the basis of gender only within a limited class of men and women:
surviving spouses.8 It is this population of surviving spouses that we
must consider when asking whether dower is sufficiently suited to its
goals to survive equal protection review.
I conclude that, although dower is both overinclusive and underinclu-
sive in relation to the target classes of needy surviving spouses and

7
In 2006, the median national yearly income for full-time male
workers was $42,210. The median income for full-time female workers
was $32,649. Thus, nationally, the ratio of women’s earnings compared
to those of men was 77.3 percent. In Michigan, the median income for
males was $47,329 and the median income for females was
$33,748. Thus, the comparable earnings ratio of women compared to
men in Michigan was 71.3 percent. Only five states have lower earnings
ratios—Alabama, Louisiana, North Dakota, West Virginia, and Wyoming.
Only two other states’ ratios are less than 72 percent—Montana (71.5
percent) and Utah (71.4 percent). United States Census Bureau, Income,
Earnings, and Poverty Data From the 2006 American Community Survey
(2007), pp 13-14, available at <http://www.census.gov/prod/
2007pubs/acs-08.pdf> (accessed July 21, 2008).
8
The dissent similarly observes that, for dower to be upheld, Sharon
Miltenberger must demonstrate a “gender-based difference within the
narrow population” reached by the relevant statutes: surviving spouses.
The gender-based distinction “must be justified by showing that gender
is a valid proxy for need within this population.” Post at 940.
908 482 MICHIGAN REPORTS
widows who have suffered economic discrimination, it reflects genuine
differences between men and women who have lost a spouse, including
that (1) widows receive considerably less income than widowers, (2)
women over the age of 65 are more likely to live in poverty than similarly
aged men, (3) women have longer life expectancies and, therefore, need
economic support for a longer period after the loss of a spouse’s
contributions to the family, (4) women have less overall earning power in
Michigan, and (5) women—particularly those of past generations who
may face widowhood in current times—may have relied on their inchoate
dower rights during the course of their marriages. Because there are
significant documented differences in the economic circumstances of
widows and widowers, the use of gender as a proxy for economic
disadvantage among surviving spouses is substantially related to the
goals of dower.
As the dissent observes, United States Census Bureau statistics show
that, generally, the median income of married men is nearly double that
of married women.9 As previously noted, Michigan generally falls well
behind the national average—and the averages of 44 states, the District
of Columbia, and Puerto Rico—in wage-equality between the sexes.10
The dissent also acknowledges that women over 65 are 71 percent more
likely than similarly aged men to live in poverty.11 The United States
Social Security Administration confirms that women receive significantly

9
Post at 939, citing a table in United States Census Bureau, Income,
Marital Status—All Races 18 Years Old and Over by Median Income
and Sex: 1974 to 2006, available at <http://www.census.gov/hhes/
www/income/histinc/p13ar.html> (accessed June 16, 2008). Although
surviving spouses are the relevant class receiving disparate treatment
on the basis of gender, information concerning the economic status of
all women is still relevant to the discussion. Potential widows are a
subclass of both all women and married women. They are also
commonly over 65. Further, a woman’s income from work affects her
pension and social security benefits upon retirement. Thus, economic
comparisons of women to men, married women to married men, and
men and women over 65 are relevant to describe the differences
between potential widows and widowers as subclasses of these groups.
10
See n 7 of this statement.
11
Post at 934, citing Legal Momentum, Reading Between the Lines:
Women’s Poverty in the United States 2004 (2004), p 1. Government
data compiled from the last comprehensive census (2000) confirm that
11.9 percent of women over 65, and only 7 percent of men over 65, lived
in poverty. Women over 65 were also twice as likely as men over 65 to
live alone. United States Census Bureau: We the People, Women and Men
in the United States (2005), pp 7, 14, available at <http://www.census.
gov/prod/2005pubs/censr-20.pdf> (accessed July 21, 2008).
 ACTIONS ON APPLICATIONS 909
less income than men upon retirement.12 One reason that women are
more likely to face poverty over the age of 65 is longer life expectancy.13
In 2004, the average life expectancy for American women was 80.4 years,
compared to 75.2 years for men.14 Accordingly, among the aging popula-
tion most likely to become surviving spouses, gender correlates with
economic need.
Further, women’s longer life expectancies may underlie gender-based
distinctions without offending equal protection. Indeed, gender-based
distinctions are subject to heightened equal protection review—and not
to the strict scrutiny review applicable to distinctions on the basis of
race—in part because men and women on the whole have physical
differences. Thus, although our “inherent differences” may not be
employed “for denigration of the members of either sex or for artificial
constraints on an individual’s opportunity,” sex is not “a proscribed
classification.” VMI, 518 US at 533 (1996). As the United States Supreme
Court observed:

The heightened review standard our precedent establishes does

not make sex a proscribed classification. Supposed “inherent
differences” are no longer accepted as a ground for race or national

12
Women’s Social Security benefits are lower than those of men and
women’s median income upon retirement from private pensions
or annuities is less than one half of men’s median income from
such sources. Social Security Online, Press Office, Social Security is
Important to Women, available at <http://www.socialsecurity.gov/
pressoffice/factsheets/women.htm> (accessed July 10, 2008); Social
Security Online, Office of Policy Data, Income of the Population 55
or Older, 2004, available at <http://www.socialsecurity.gov/policy/
docs/statcomps/income_pop55/> (accessed July 10, 2008).
The dissent also observes, however, “that men experience a greater
proportional loss of income than women after losing a spouse[.]” Post at
936 n 9. I would note that, although a man may lose a higher percentage
of his income upon the loss of a spouse, this is in part because his income
was higher to begin with; he still earns significantly more in raw dollars
after the death of a spouse than does a woman. Using the statistics for
2005 cited by the dissent, post at 937 n 9, the average widower earns
roughly double the very meager poverty threshold for Americans over 65
(which was $9,367 in 2005), whereas the average widow earns only about
11/2 times the threshold amount. United States Census Bureau, Poverty,
Poverty Thresholds 2005, available at <http://www.census.gov/
hhes/www/poverty/threshld/thresh05.html> (accessed July 10, 2008).
13
Social Security is Important to Women, n 12, supra.
14
Arias, United States Life Tables, 2004, 56 National Vital Statistics
Reports, No. 9, p 4 (2007), available at <http>://www.cdc.gov
/nchs/data/nvsr/nvsr56/nvsr56_09.pdf> (accessed July 10, 2008).
910 482 MICHIGAN REPORTS
origin classifications. See Loving v. Virginia, 388 U.S. 1 (1967).
Physical differences between men and women, however, are
enduring: “[T]he two sexes are not fungible; a community made
up exclusively of one [sex] is different from a community
composed of both.” Ballard v. United States, 329 U.S. 187, 193
(1946). [Id.][15]

For these reasons, the distinction between widows and widowers does
not rest on mere “archaic and stereotypic notions” or mere presumptions
that women “suffer from an inherent handicap or [are] innately infe-
rior . . . .” Mississippi Univ for Women v Hogan, 458 US 718, 725
(1982). Rather, the direct evidence of economic disparity between these
populations shows that the classification is rooted in accurate data and a
“reasoned analysis,” not “the mechanical application of traditional, often
inaccurate, assumptions about the proper roles of men and women,” id.
at 725-726, or “ ‘overbroad generalizations about the different talents,
capacities, or preferences of males and females,’ ” Nevada Dep’t of
Human Resources v Hibbs, 538 US 721, 729 (2003) (citation omitted). To
use the words of the dissent, here a “palpable connection” clearly exists
“between gender and the trait for which it serves as a proxy[.]” Post at
935.

1. CALIFANO v WEBSTER

United States Supreme Court precedent confirms that gender

classifications are warranted in marital law and in the retirement
context when the classifications remedy women’s lower earnings in
the past. Indeed, dower directly resembles the portion of the Social
Security Act found to be constitutional in Webster, although the law
discriminated between men and women. The law in Webster permitted
women to exclude three more lower-earning years from the computa-
tion of their average wages—resulting in relatively higher benefits
upon retirement—because women “have been unfairly hindered from
earning as much as men . . . .” Webster, 430 US at 315-318. The
resulting gender classification was constitutional because it “works
directly to remedy some part of the effect of past discrimination.” Id.
at 318. Dower has a similar effect, because it assists in addressing
women’s lower incomes upon retirement, which are one result of lower
earnings during women’s working lives. Most significantly, like Michi-
gan’s dower scheme, the statute in Webster is both underinclusive of
less wealthy male workers, who could not benefit from the additional
three-year exclusion although they earned lower wages than other

15
In the words of Jenness v Fortson, 403 US 431, 442 (1971): “Some-
times the grossest discrimination can lie in treating things that are
different as though they were exactly alike . . . . ”
 ACTIONS ON APPLICATIONS 911
men, and overinclusive of more wealthy female workers who could
make use of the exclusion although they may not have directly
suffered from discrimination.

2. KAHN v SHEVIN

Next, in Kahn v Shevin, 416 US 351(1974), the United States

Supreme Court expressly recognized the disparate financial effect on
women who lose their spouses. Citing labor statistics similar to those
cited above concerning economic and wage disparity between the sexes,
the Kahn Court concluded that a Florida tax law granting a $500
property tax exemption to widows but not widowers permissibly “cush-
ion[ed] the financial impact of spousal loss upon the sex for which that
loss imposes a disproportionately heavy burden.” Id. at 353-355. Thus,
Kahn is directly relevant to the case before us and supports the
conclusion that gender-based dower does not offend equal protection.
Further, in her brief, Sharon Miltenberger makes the following compel-
ling observation:

A woman of 65 now, one most likely to be in the class taking

benefit of dower, was 34 when the statistics relied upon in the
Kahn decision were recorded. The majority of today’s widows
were in their prime earning capacity years when women, even
college educated women, earned far less than nearly any man.
This deprived them not only of earnings at that time, but also
the ability to accumulate wealth and property for the future.

Finally, like the statute in Webster and Michigan’s dower scheme, the law
upheld in Kahn is underinclusive of needy spouses because it does not
address the needs of less wealthy widowers and overinclusive of widows
because it does not exclude high-earning women.
The dissent essentially dismisses Kahn, opining that the Court
employed rational basis review instead of heightened scrutiny. Post at
942-943. I do not think that Kahn may be so easily overlooked. Kahn was
indeed decided before the United States Supreme Court established the
modern test for intermediate scrutiny, which requires a gender classifi-
cation to be “substantially related” to “important governmental objec-
tives . . . .” Craig, 429 US at 197. Rational basis review merely requires
a classification to be “rationally related to a legitimate governmental
purpose.” Clark v Jeter, 486 US 456, 461 (1988). Kahn upheld the law at
issue by concluding that “Florida’s differing treatment of widows and
widowers “ ‘ “rest[s] upon some ground of difference having a fair and
substantial relation to the object of the legislation.” ’ ” Kahn, 416 US at
355, quoting Reed v Reed, 404 US 71, 76 (1971) (emphasis added; citation
omitted). Thus, the Kahn Court’s conclusion appears to have been
grounded in something more than a rational connection between the
classification and a legitimate governmental purpose. Rather, the Kahn
Court concluded that the classification bore a substantial relation to the
goal of cushioning the effect of economic discrimination and disparity in
912 482 MICHIGAN REPORTS
income after the loss of a spouse, which the dissent agrees is an important
governmental objective. And, as the dissent concedes, Kahn has not been
overruled, post at 942, but is still good law. Accordingly, I conclude that
Kahn remains persuasive here.16
The dissent also distinguishes Kahn because it “relied heavily on
the fact that the provision at issue was a tax provision . . . .” Post at
943. The Kahn Court observed: “States have large leeway in making
classifications and drawing lines which in their judgment produce
reasonable systems of taxation” when “ ‘taxation is concerned and no
specific federal right, apart from equal protection, is imper-
iled . . . .’ ” Kahn, 416 US at 355 (citation omitted); post at 943.
Because Kahn stated that leeway is afforded when taxation is con-
cerned and no federal right apart from equal protection is involved, I
cannot conclude that the Court’s decision that the law comported with
the Equal Protection Clause arose merely or primarily from special
deference to Florida’s taxing power.

3. CRAIG v BOREN

The dissent prefers to compare dower to the law found unconstitu-

tional in Craig. But, for several significant reasons, I conclude that Craig
does not require us to hold that Michigan’s dower scheme violates the
Equal Protection Clause. Indeed, as I discuss further in part III(C), the
dissent’s application of Craig would effectively render all gender classi-
fications unconstitutional.
First, Craig is a problematic decision because although a majority of
justices concurred in the result, only a plurality concurred in Justice
Brennan’s lead opinion. Justices Powell and Stevens each concurred, but
explicitly condemned Justice Brennan’s endorsement of a middle-tier
analysis. Craig, 429 US at 210 (Powell, J., concurring); id. at 212
(Stevens, J., concurring). Justice Stewart similarly concurred in the
result because he concluded the classification “amount[ed] to total
irrationality . . . without even a colorably valid justification or explana-
tion,” and therefore the law constituted “invidious discrimination.” Id. at
215 (Stewart, J., concurring in result). Chief Justice Burger and Justice
Rehnquist dissented, rejecting the propriety of a middle-tier analysis, id.
at 217 (Burger, C.J., dissenting); id. at 217-218 (Rehnquist, J., dissent-
ing), and harshly criticizing Justice Brennan’s attempts to justify his
result by subjecting the state to “the judicial equivalent of a doctoral
examination in statistics,” id. at 221-226 (Rehnquist, J., dissenting).
Second, the goals and means of the statute at issue in Craig bore no
resemblance to those of Michigan’s dower scheme. The Oklahoma law
permitting sales of 3.2 percent alcoholic beverages to women aged 18
years or older and men aged 21 years or older was ostensibly aimed at

16
Moreover, as I explain below, the line between rational basis review
and intermediate scrutiny review is not easily drawn, but is a source of
much controversy.
 ACTIONS ON APPLICATIONS 913
traffic safety.17 Craig, 429 US at 199. Thus, the law was in no way aimed
at remedying past discrimination between the sexes. Indeed, the Craig
Court distinguished Kahn and Schlesinger v Ballard, 419 US 498 (1975),
for that very reason. Craig noted that Kahn and Schlesinger “uph[eld]
the use of gender-based classifications . . . [based] upon the Court’s
perception of the laudatory purposes of those laws as remedying disad-
vantageous conditions suffered by women in economic and military life.”
Craig, 429 US at 198 n 6. The Court then concluded: “Needless to say, in
this case Oklahoma does not suggest that the age-sex differential was
enacted to ensure the availability of 3.2% beer for women as compensa-
tion for previous deprivations.” Id.18 The law at issue in Craig also did
not recognize a historic property right of women. Rather, for reasons
unclear to the Court, the law precluded sales of certain alcohol to men
under 21, when it could easily have precluded sales to all persons under
21.
Third, the statistics in Craig revealed a significantly less direct
relationship between drunk driving and men aged 18 to 20 than the
statistics here correlating widows and economic disadvantage as com-
pared to widowers. The dissent relies on dicta and generalized statements
in Craig regarding the “dubious[ness]” of “proving broad sociological
propositions by statistics,” and the less tenuous correlations in other
cases that were nonetheless rejected as insufficient. Post at 936, quoting
Craig, 429 US at 204. Indeed, I agree that the use of statistics “inevitably
is in tension with the normative philosophy that underlies the Equal
Protection Clause.” Post at 936, quoting Craig, 429 US at 204. But, as
Craig illustrates, unless we are to apply strict scrutiny or strike down all
gender-based classifications, empirical data may be necessary to gauge
whether there is a substantial relationship between such a classification
and an important governmental objective. See part III(C) of this state-
ment.
The actual statistics underlying the Court’s holding in Craig are not
comparable to the data relevant here. The Craig plurality did not find the
statistics insufficient merely because 2 percent of men as compared to
0.18 percent of women were arrested for drunk driving. Rather, it
concluded that these data represented the “most focused and relevant” of
the statistics offered by the state, yet they did not justify the classification
because, overall, the “statistics exhibit[ed] a variety of other shortcom-
ings that seriously impugn[ed] their value to equal protection analysis.”

17
The Court strongly questioned whether traffic safety was the true
goal of the statute, but accepted the state’s claims for purposes of
discussion. Craig, 429 US at 199-200 and n 7.
18
In dissent, Justice Rehnquist similarly observed: “Most obviously
unavailable to support any kind of special scrutiny in this case, is a
history or pattern of past discrimination . . . . ” Craig, 429 US at 219
(Rehnquist, J., dissenting). “There is no suggestion in the Court’s opinion
that males in this age group are in any way peculiarly disadvantaged,
subject to systematic discriminatory treatment, or otherwise in need of
special solicitude from the courts.” Id.
914 482 MICHIGAN REPORTS
Craig, 429 US at 201-202. Most significantly, the statistical surveys did
not “justify the salient features of Oklahoma’s gender-based traffic-
safety law” because “[n]one purport[ed] to measure the use and danger-
ousness of 3.2% beer as opposed to alcohol generally”; the Court found
this detail to be “of particular importance since, in light of its low alcohol
level, Oklahoma apparently consider[ed] the 3.2% beverage to be ‘non-
intoxicating.’ ” Id. at 202-203. The plurality added: “Moreover, many of
the studies, while graphically documenting the unfortunate increase in
driving while under the influence of alcohol, ma[de] no effort to relate
their findings to age-sex differentials as involved here.” Id. at 203. In-
deed, Justice Brennan noted that roadside surveys had established that
“ ‘the under-20 age group generally showed a lower involvement with
alcohol in terms of having drunk within the past two hours or having a
significant BAC (blood alcohol content).’ ” Id. at 203 n 16 (citation
omitted). Thus, the surveys “provide[d] little support for a gender line
among teenagers and actually r[an] counter to the imposition of drinking
restrictions based upon age.” Id.
In contrast, as explained above, although gender-based dower is
somewhat over- and underinclusive of its goals, there is a clear correla-
tion between widows and economic need, as well as past economic
discrimination. The correlation rests on more than the mere “loose-
fitting generalities concerning the drinking tendencies of aggregate
groups” presented in Craig. Craig, 429 US at 209. Further, the law at
issue in Craig discriminated against men to serve the general goal of
traffic safety, which is unrelated to gender in substance. But here,
dower’s gender classification is expressly aimed at remedying gender
disparities.

4. ORR v ORR

Perhaps most significantly, Michigan’s dower scheme is distinguish-

able from the laws compared by the dissent because those laws are
amenable to gender-neutral application. The dissent compares cases in
which the United States Supreme Court “has held that using gender as
a proxy for need is unwarranted when nondiscriminatory means of
determining need are equally available.” Post at 937. It relies on Orr v
Orr, 440 US 268 (1979). But Orr is distinguishable for significant reasons
that exemplify the differences between the case before us and the cases
on which the dissent relies. The statute in Orr, which allowed for women
but not men to receive alimony upon divorce, similarly sought to assist
needy spouses and compensate for past discrimination. Id. at 280. But,
crucially, the statute in Orr provided for individualized hearings at which
both spouses’ financial circumstances were examined. Id. at 281. Accord-
ingly, the gender-based distinction was gratuitous; the hearings would
allow similarly situated individuals to be treated the same with little if
any additional burden on the state, and the effort to aid disadvantaged
women “would not in any way be compromised.” Id. at 281-282. Thus,
the state’s “compensatory and ameliorative purposes [were] as well
served by a gender-neutral classification as one that gender classi-
fies . . . .” Id. at 283.
 ACTIONS ON APPLICATIONS 915
In contrast, probate proceedings under Michigan’s EPIC provide no
such mechanism to determine financial need. I respectfully suggest that
the dissent is too cavalier in suggesting that “nondiscriminatory meth-
ods” such as gender-neutral dower or “[d]ower provisions that apply to
those spouses who demonstrate an actual need for dower” would serve
the goals of dower “equally well, if not better.” Post at 938. While I concur
that the Legislature would do well to establish a nondiscriminatory
solution, as other states have done, the Legislature alone can determine
the feasibility of such a solution in Michigan. At this time, individualized
hearings such as those suggested by the dissent do not exist. As I will
explain below, I also question the feasibility of creating a gender-neutral
dower scheme that is consistent with existing property rights in Michi-
gan. Accordingly, I do not think that Orr is controlling.

5. WENGLER v DRUGGISTS MUT INS CO, CALIFANO v GOLFARB,

AND WEINBERGER v WIESENFELD

Other cases on which the dissent relies involved laws with similarly
available means for gender-neutral application. In Wengler v Druggists
Mut Ins Co, 446 US 142, 151 (1980), widowers but not widows were
required to prove dependence on a spouse’s earnings before receiving
workers’ compensation death benefits. The Court concluded that admin-
istrative convenience did not justify discrimination when benefits could
be made available either to all applicants regardless of sex or to both men
and women who proved dependence. Id. at 151-152. Califano v Goldfarb,
430 US 199 (1977), addressed federal old-age, survivors, and disability
insurance benefits automatically payable to widows, but payable to
widowers only upon proof of dependency. Significantly, not only was a
method for proving dependency already in place, but the Court centrally
held that the law violated equal protection because it was not aimed at
compensating for need or discrimination, but “reflect[ed] only a pre-
sumption that [women] are ordinarily dependent” and denigrated wom-
en’s wage earnings. Id. at 214. Finally, the dissent cites Weinberger v
Wiesenfeld, 420 US 636 (1975), for the proposition that distinctions “not
entirely without empirical support” nonetheless may not meet equal
protection standards. Post at 935, quoting Weinberger, 420 US at
645. Weinberger is relevant to the extent that dower may offend equal
protection by denigrating women’s work and earnings, id. at 645, as I
discuss below. But, as in Wengler, the Court did not hold the Social
Security Act benefits scheme at issue in Weinberger unconstitutional
because it employed gender as an imperfect proxy for need. To the
contrary, the Court concluded that benefits available automatically only
to widows with children were not designed to remedy economic discrimi-
nation; rather, the classifications were “intended to permit women to
elect not to work and to devote themselves to the care of children.” Id. at
648. The Court concluded: “Since this purpose in no way is premised
upon any special disadvantages of women, it cannot serve to justify a
gender-based distinction which diminishes the protection afforded to
women who do work.” Id.
916 482 MICHIGAN REPORTS
6. THE “SUBSTANTIAL RELATION” TEST APPLIED TO THIS CASE

The dissent stresses that dower is underinclusive even with regard to

economically disadvantaged widows and overinclusive with regard to
widows who do not face financial difficulty. These points are well-taken.
But dower is not unconstitutional merely because it is imperfect. First,
although dower may apply only in limited circumstances, those circum-
stances are meaningful. As the dissent notes, “ ‘[s]ince a surviving spouse
generally takes a dower or curtesy interest free from debts, these
interests may offer more protection than other spousal protection provi-
sions.’ ” Post at 931, quoting 15 Powell, Real Property, § 85.20[2][c], p
379. Significantly, dower also normally attaches to the marital home.19
Further, dower is not available on a purely random basis. Rather, it is a
viable option only if a husband transfers real property without his wife’s
consent, see MCL 558.13, and also leaves a minimal estate; in other
words, it is available in cases such as this one, in which Sharon
Miltenberger’s husband transferred the marital home and his office
without her consent shortly before his death and left an estate with a net
worth of only $8,823.06. Finally, dower is only available from transferees
who received the property with notice that it was subject to a wife’s
dower rights; presumably, if the property is purchased, the wife’s
contingent rights are reflected in a lower purchase price. Thus, although
dower may become available in rare circumstances to a widow who is not
economically advantaged, the grantee is not unjustly caught unaware of
her potential claim.
Dower is also underinclusive in the sense that it does not benefit the
statistically smaller group of needy widowers. But dower does not
denigrate women’s earnings, as did the laws at issue in Wengler, Gold-
farb, and Weinberger. The dissent asserts that “[p]recluding men from
asserting a dower right in their wife’s lands provides female landowners
fewer protections than male landowners.” Post at 942. But what prevents
a woman from selling her land for a lower price in order to provide her
husband a contingent 1/3 remainder during the course of his life? Indeed,
because any landowner has such an option, dower appears primarily
applicable to cases like this one, in which a spouse explicitly sought to
shield his wealth from his mate, who may have relied on her dower right.
In contrast, Goldfarb, Wengler, and Weinberger involved disparate treat-
ment of women in public schemes that directly devalued their earnings
and for which they had no private remedy.20 The gender-based distinction
in the federal program addressed by Goldfarb, which paid benefits to

19
The particular importance of a woman’s use of her marital home
after her husband’s death was explicitly raised at the 1961 constitutional
convention. Indeed, the delegates considered eliminating dower “except
as to the homestead.” 2 Official Record, Constitutional Convention 1961,
pp 2444-2445.
20
Craig is similarly distinguishable. There the classification resulted in
a detriment to males aged 18 to 20 who had no option to buy 3.2 percent
alcohol upon proof that they never drove while under the influence of
 ACTIONS ON APPLICATIONS 917
widows automatically but to widowers only upon proof of dependency,
“result[ed] in the efforts of female workers required to pay social security
taxes producing less protection for their spouses than is produced by the
efforts of men . . . .” Goldfarb, 430 US at 206-207. The workers’
compensation scheme in Wengler similarly allowed automatic benefits for
widows, but not for widowers, without regard to a deceased wife’s past
work and earnings. Wengler, 446 US at 151. In Weinberger, the Court
explicitly observed that although “the notion that men are more likely
than women to be the primary supporters of their spouses and children
is not entirely without empirical support,” the social security taxes at
issue

were deducted from [the wife’s] salary during the years in which
she worked. Thus, she not only failed to receive for her family the
same protection which a similarly situated male worker would
have received [because only widows with children automatically
received death benefits], but she also was deprived of a portion of
her own earnings in order to contribute to the fund out of which
benefits would be paid to others. [Weinberger, 420 US at 645.]

In sum, dower is not a perfect proxy for need or a complete remedy for
past discrimination even within the relevant population of surviving
spouses. But dower is not as imperfect—or as easily replaced—as the
dissent suggests. Although we may not like the current state of affairs in
which women—and widows in particular—are economically disadvan-
taged as a result of discrimination or of arguably outdated gender-based
family roles, the data show that dower is not based on mere “ ‘assump-
tions as to dependency’ ” inconsistent with “contemporary reality.”
Goldfarb, 430 US at 207 (citations omitted); post at 934. Dower also
imposes no particular harm on women landowners who are not economi-
cally disadvantaged, because they may contractually protect their hus-
bands. Similarly, landowning men may remove the burden of dower from
their transactions simply by soliciting their wives’ signatures. Retaining
dower also protects the choices of women who have historically relied on
its existence while taking time off from work to raise children or
maintain their homes.
Most significantly, dower serves important, constitutionally sound
governmental objectives that are not equally served by hypothetical
gender-neutral schemes without additional burdens on the state. Unlike
the gender-neutral schemes available in Orr and Goldfarb, gender-based
dower cannot be eliminated without compromising the effort to aid
disadvantaged women. See Orr, 440 US at 282. The gender distinction
here is not “gratuitous.” See Weinberger, 420 US at 653. I would
wholeheartedly support laws that provide “more direct means of reallo-
cating income or other personal wealth” than “providing a life estate in
a portion of lands owned by a woman’s husband[.]” Post at 941. But this

alcohol. Yet a husband may solicit his wife’s signature to ensure that her
dower rights are extinguished when he wishes to transfer land.
918 482 MICHIGAN REPORTS
Court cannot direct the Legislature to create complex social support
regimes out of thin air. Indeed, I am not convinced that the Legislature
could feasibly adopt a gender-neutral dower scheme, as the dissent
suggests. Post at 938. First, no mechanism exists to determine whether a
spouse is sufficiently dependent to justify a dower right in property
owned by a third party. Most significantly, gender-neutral dower for
husbands in land already transferred would compromise vested property
rights; although a woman’s right to dower has always been embedded in
Michigan law pertaining to real property, a man’s right to dower has
never been recognized or taken into account during past transactions
involving real property.
For these reasons, I conclude that the dissent wrongly equates the
shortcomings of dower with its unconstitutionality. There is undeniable
evidence that widows are economically disadvantaged as compared to
widowers, particularly in Michigan. Because dower does not denigrate
women, and because no system of social welfare or remedy for past
discrimination can achieve complete success, I conclude that the gender
distinction inherent in Michigan’s dower statutes is sufficiently related to
the goals of dower to withstand equal protection scrutiny.

C. THE CONTOURS OF INTERMEDIATE SCRUTINY

The dissent accuses me of engaging in rational basis review. Post at

944. I, in turn, conclude that the dissent’s formulation of intermediate
scrutiny amounts to strict scrutiny and would invalidate most, if not all,
conceivable gender-based classifications. Overall, absent further guid-
ance from the United States Supreme Court concerning implementation
of the intermediate scrutiny standard, I would not invalidate our Legis-
lature’s recent choice to retain dower as a remedy for past economic
discrimination and aid some number of impoverished widows while
preventing them from becoming public charges. Although dower appears
to reflect stereotypes, it is also rooted in documented differences in
circumstances between the sexes.
“The heightened review standard . . . does not make sex a proscribed
classification.” VMI, 518 US at 533. The law may recognize our differ-
ences as long as it does not do so to “denigrat[e] . . . the members of
either sex” or to create “artificial constraints on an individual’s oppor-
tunity.” Id. Moreover, remedying past discrimination against women is
explicitly recognized as an important governmental objective. Id.; Web-
ster, 430 US at 317. Thus, evidence of real-world disparities between men
and women or discrimination on which a challenged statute is premised
is both relevant and necessary to intermediate scrutiny.
Yet, as my debate with the dissent illustrates, courts are at a loss
about how to employ such evidence in practice. As noted, the Craig Court
itself engaged in a debate about the appropriateness and workability of
intermediate scrutiny. Tellingly, in his dissent, Justice Rehnquist re-
marked that use of the substantial relation test “requires courts to make
subjective judgments as to operational effects, for which neither their
expertise nor their access to data fits them.” Craig, 429 US at
221. Courts commonly use statistics when applying the intermediate
 ACTIONS ON APPLICATIONS 919
scrutiny standard.21 But the divisive question remains: How much and
what kind of empirical support is sufficient to justify the classification?
The United States Court of Appeals for the Third Circuit attempted to
answer this question in Contractors Ass’n of Eastern Pennsylvania, Inc v
Philadelphia, 6 F3d 990 (CA 3, 1993), a so-called “affirmative action”
case involving a city contracting program that gave preferential treat-
ment to enterprises owned by racial and ethnic minorities, women, and
handicapped persons. With regard to the preference in favor of women,
the court observed:
Few cases have considered the evidentiary burden needed to
satisfy intermediate scrutiny in this context . . . . In particular, it
is unclear whether statistical evidence as well as anecdotal evi-
dence is required to establish the discrimination necessary to
satisfy intermediate scrutiny, and if so, how much statistical
evidence is necessary. The Supreme Court gender-preference cases
are inconclusive. The Court has never squarely ruled on the
necessity of statistical evidence of gender discrimination. And its
decisions are difficult to reconcile on the point. The Court has
upheld gender preferences where no statistics were offered,
Schlesinger . . . , 419 U.S. 498, 508-09 . . . (preferential employ-
ment treatment for women military officers), struck down gender
preferences despite the presence of statistics, Craig . . . , 429 U.S.
190, 203-04 . . . (statute allowing 18 year old women but only 21
year old men to purchase 3.2% beer), Weinberger . . . , 420 U.S.
636 . . . (statute allowing survivors’ benefits for widows but not
widowers), and also decided cases both ways by relying in part on
statistics, Hogan, 458 U.S. at 728 . . . (striking down female-only
nursing school), . . . Webster, 430 U.S. 313, 318 & n. 5 . . . (uphold-
ing federal statute allowing women to eliminate more low-earning
years from calculation of their retirement benefits than men). [Id.
at 1010.]

The Third Circuit ultimately concluded that the city was required “to
present probative evidence in support of its stated rationale for the
gender preference,” relying on the Supreme Court’s statement “that an
affirmative action program survives intermediate scrutiny if the propo-

21
See, e.g., Hogan, 458 US at 729 n 14 (citing, among other things,
national statistics published by the United States Census Bureau regard-
ing the percentage of nursing degrees conferred on women as compared
to men); Craig, 429 US at 201-203, and the discussion in III(B)(3) of this
statement; and Kahn, 416 US at 353-354 and n 7 (citing, among other
things, national statistics published by the United States Census Bureau
and the Women’s Bureau of the United States Department of Labor
regarding income disparity between the sexes).
920 482 MICHIGAN REPORTS
nent can show it was ‘a product of analysis rather than a stereotyped
reaction based on habit.’ ” Id., citing Metro Broadcasting, Inc v FCC, 497
US 547, 582-583 (1990).22
The Eleventh Circuit helpfully refined the Third Circuit’s test in
Engineering Contractors Ass’n of South Florida, Inc v Metropolitan Dade
Co, 122 F3d 895 (CA 11, 1997). There, addressing a similar law aimed at
remedying discrimination against women, the court opined:
Although it is clear that both gender-conscious and race- or
ethnicity-conscious programs must be tested for evidentiary suffi-
ciency, the measure of the evidence required is less clear in the
gender context. The Supreme Court has not addressed the ques-
tion explicitly, and there is a similar dearth of guidance in the
reported decisions of other federal appellate courts. . . . The
Supreme Court has told us plainly that race- and ethnicity-
conscious programs must be tested for a “strong basis in evi-
dence,” and a body of appellate jurisprudence has developed to
provide that label with meaningful content. See, e.g., [City of
Richmond v JA Croson Co, 488 US 469, 499-504 (1989)] (identi-
fying factors that cannot form a “strong basis in evidence”);
[Ensley Branch, NAACP v Seibels, 31 F3d 1548, 1565 (CA 11,
1994)] (citing and applying Croson). In the gender context, how-
ever, we must work without an analogous evidentiary label from
the Supreme Court, and the jurisprudence is less developed.
Regardless of what label might be affixed to the standard, it is
clear to us that a gender-conscious affirmative action program can
rest safely on something less than the “strong basis in evidence”
required to bear the weight of a race- or ethnicity-conscious
program. We agree with the Third Circuit that “[l]ogically, a [local
government] must be able to rely on less evidence in enacting a

22
The Third Circuit held that the city had not met this burden because
it provided no “probative statistical evidence” and its anecdotal evidence
consisted only of one three-page affidavit alleging discrimination and one
“conclusory sentence” from a witness who attended a city council
meeting. Contractors Ass’n, 6 F3d at 1011. With regard to the city’s
statistics, the court observed: “[T]he City relies on statistics in the City
Council Finance Committee Report and one affidavit from a woman
engaged in the catering business, but this evidence only reflects the
participation of women in City contracting generally, rather than in the
construction industry, which is the only cognizable issue here.” Id. at
1010-1011. The court also noted that a study provided by the city
“contain[ed] no disparity index for women-owned construction busi-
nesses in City contracting, such as that presented for minority-owned
businesses.” Id. at 1011. Accordingly, the city’s evidence was “insuffi-
cient to create an issue of fact.” Id.
 ACTIONS ON APPLICATIONS 921
gender preference than a racial preference because applying Croson’s
evidentiary standard to a gender preference would eviscerate the
difference between strict and intermediate scrutiny.” Contractors
Ass’n, 6 F.3d at 1010; see also Peter Lurie, Comment, The Law as
They Found It: Disentangling Gender-Based Affirmative Action
Programs from Croson, 59 U. Chi. L. Rev. 1563, 1584-89 (1992)
(concluding that “[t]he factual predicate required cannot be equal to
that needed to support a racial classification” because “[a]ppending a
Croson-style factual predicate to the standard disingenuously trans-
forms” intermediate scrutiny into strict scrutiny).
While there is a difference between the evidentiary foundation
necessary to support a race- or ethnicity-conscious affirmative
action program and the evidentiary foundation necessary to sup-
port a gender preference, that difference is one of degree, not of
kind. In both circumstances, the test of the program is the
adequacy of evidence of discrimination, but in the gender context
less evidence is required. The difficulty, of course, is in determin-
ing how much less. [Id. at 909.]

The Eleventh Circuit proceeded to examine the “probative evidence”

standard enunciated by the Third Circuit in Contractors Ass’n. The Court
approved of the standard as applied, explaining:

Plainly, the evidence offered by the government in Contractors

Association was “probative” as that word is commonly understood,
because it tended, at least to some extent, to prove discrimination
against women. . . . The probative evidence in Contractors Asso-
ciation was nonetheless judged “insufficient.” We think that the
court’s holding in Contractor’s Association is more helpful than
the “probative evidence” standard the opinion articulates. Under
the Third Circuit’s holding, evidence offered in support of a
gender preference must not only be “probative,” it must also be
“sufficient.” [Id. at 909-910.]

In attempting to circumscribe this “sufficient probative evidence” stan-

dard, the court analogized and contrasted the stricter “strong basis in
evidence” standard applicable to race-based classifications. It focused on
“two principal guidelines that mark the boundaries of intermediate
scrutiny evidentiary analysis.” Id. at 910.

First, “[u]nder the intermediate scrutiny test, a local govern-

ment must demonstrate some past discrimination against women,
but not necessarily discrimination by the government itself.”
Ensley Branch, 31 F.3d at 1580. Indeed, “[o]ne of the distinguish-
ing features of intermediate scrutiny is that, unlike strict scrutiny,
the government interest prong of the inquiry can be satisfied by a
922 482 MICHIGAN REPORTS
showing of societal discrimination in the relevant economic sec-
tor.” Id. (citations omitted). Thus, to be sufficient the evidence
need not be about governmental discrimination.
Second, the intermediate scrutiny evidentiary review is not to
be directed toward mandating that gender-conscious affirmative
action is used only as a “last resort,” Hayes v. North State Law
Enforcement Officers Ass’n, 10 F.3d 207, 217 (4th Cir. 1993) (racial
discrimination case), but instead to ensuring that the affirmative
action program is “a product of analysis rather than a stereotyped
reaction based on habit,” Contractors Ass’n, 6 F.3d at 1010
(quoting Metro Broadcasting, [497 US at 582-583]). Nevertheless,
any “ ‘analysis’ that rests upon unsupported factual premises
cannot possibly be ‘reasoned,’ and an untrue and widely-held
generalization about men or women is by definition a ‘stereo-
type.’ ” Lamprecht v. FCC, 958 F.2d 382, 393 n. 3 (D.C.Cir.1992)
(Thomas, Circuit Justice). That is why the intermediate scrutiny
evidentiary “inquiry turns on whether there is evidence of past
discrimination in the economic sphere at which the affirmative
action program is directed.” Ensley Branch, 31 F.3d at 1581.
Unsupported generalizations will not suffice. [Id.]

The Eleventh Circuit concluded: “Under those guidelines, the govern-

ment must satisfy an ‘intermediate’ standard—less stringent than the
‘strong basis in evidence’ standard associated with strict scrutiny, yet
more demanding than merely any probative evidence.” Id.23
As applied here, Sharon Miltenberger presented data showing both
wage disparities between the sexes and the relative poverty of men and
women over 65. She addressed both the national and local economic
spheres, as well as wage disparities among the married population
capable of becoming surviving spouses. With regard to the closeness of
“fit” between dower’s means and its capability of remedying these
disparities, I conclude that she also showed that dower is “a product of
analysis rather than a stereotyped reaction based on habit.” Metro
Broadcasting, 497 US at 582-583. As the Eleventh Circuit acknowledged,
the meaning of “sufficient,” even in reference to this standard, “may
elude precise formulation . . . .” Engineering Contractors Ass’n, 122
F3d at 910. But Hogan provided crucial guidance on this point by
explaining the purpose of the substantial relation test: “The purpose of
requiring that close relationship is to assure that the validity of a
classification is determined through reasoned analysis rather than
through the mechanical application of traditional, often inaccurate,
assumptions about the proper roles of men and women.” Hogan, 458 US

23
Compare the Tenth Circuit’s similar observations in Concrete Works
of Colorado, Inc v City & Co of Denver, 321 F3d 950, 959-960 (CA 10,
2003).
 ACTIONS ON APPLICATIONS 923
at 725-726.24 Thus—in keeping with the Craig Court’s concerns about
the “dubious[ness]” of “proving broad sociological proposition by statis-
tics,” Craig, 429 US at 204 (Brennan, J.), and the unworkability of a test
that “requires courts to make subjective judgments as to operational
effects, for which neither their expertise nor their access to data fits
them,” id. at 221 (Rehnquist, J., dissenting)—Hogan suggests that the
sufficiency or “fit” of the data is judged not by whether a law’s proponent
can meet some numerical threshold, but by whether the data reflect
permissible goals rooted in true differences. If, as here, the data reflect
true differences and the law provides some degree of remedy for the
resulting disparities, the law’s proponent has shown that the law is
constitutional because it is not based on mere reflexive assumptions that
denigrate the sexes. Put otherwise, the law is constitutional because it
does not rely on “unsupported factual premises,” and, since strict
scrutiny does not apply, the law need not be justified as a “last resort” or
have a “strong basis in evidence.” See Engineering Contractors Ass’n, 122
F3d at 910 (emphasis added). These conclusions are practically required
if we are to distinguish strict scrutiny from intermediate scrutiny while
honoring the current, somewhat conflicting body of equal protection
jurisprudence.
Finally, the dissent relies heavily on the United States Supreme Court’s
reluctance to uphold gender classifications in the realm of marital law. Post
at 929-930, 945. I offer two responses. First, as previously discussed, the
cases cited by the dissent are generally distinguishable, because they involve
public schemes that directly denigrate women’s earnings or because the laws
involved were amenable to gender-neutral alternatives, or both. Second, I
cede the dissent’s point to a large degree, but with a caveat. The dissent’s
assertion that I “equate[] strict scrutiny with the intermediate scrutiny that
[Justice CAVANAGH] employ[s] in this case,” post at 945, illustrates my point
that the Supreme Court’s intermediate scrutiny jurisprudence is inconsis-
tent and difficult to apply. Justice CAVANAGH’s analysis resembles strict
scrutiny in part because the Supreme Court’s analyses resemble strict
scrutiny, particularly in the post-Kahn marital arena. In Engineering
Contractors Ass’n, the Eleventh Circuit addressed this very issue as a
problem existing across the board in intermediate scrutiny cases. The court
began by noting the Supreme Court’s use throughout its VMI opinion—
which invalidated maintenance of a single-sex education program at the
Virginia Military Institute—of the phrase “exceedingly persuasive justifica-
tion” to describe the substantial relation test. Engineering Contractors
Ass’n, 122 F3d at 907. The Eleventh Circuit opined that the phrase
“connotes more intense scrutiny than do customary descriptions of inter-
mediate scrutiny,” citing Justice Scalia’s dissent in VMI. Id. Indeed, in VMI,
Justice Scalia accused the high court of effectively adopting the strict
scrutiny test for gender classifications. VMI, 518 US at 571 (Scalia, J.,

24
A gender-based classification will not be upheld if its objective is “to
exclude or ‘protect’ members of one gender because they are presumed
to suffer from an inherent handicap or to be innately inferior . . . .”
Hogan, 458 US at 725.
924 482 MICHIGAN REPORTS
dissenting). Yet the VMI majority disclaimed doing so, id. at 532, and, in
concurring in the result, Chief Justice Rehnquist explicitly counseled:

While terms like “important governmental objective” and

“substantially related” are hardly models of precision, they have
more content and specificity than does the phrase “exceedingly
persuasive justification.” That phrase is best confined, as it was
first used, as an observation on the difficulty of meeting the
applicable test, not as a formulation of the test itself. [Id. at 559
(Rehnquist, C.J., concurring in result).]

Accordingly, the Eleventh Circuit declined to apply a new, stricter

standard in cases addressing gender-based classifications, stating: “Un-
less and until the Supreme Court tells us otherwise, intermediate
scrutiny remains the applicable constitutional standard in gender dis-
crimination cases, and a gender preference may be upheld so long as it is
substantially related to an important governmental objective.” Engineer-
ing Contractors Ass’n, 122 F3d at 908. I similarly conclude that, al-
though “[i]t is unfortunate that the Court [has] introduce[d] an element
of uncertainty respecting the appropriate test” in cases involving gender-
based classifications, VMI, 518 US at 559 (Rehnquist, C.J., concurring in
result), the Supreme Court’s formally enunciated test remains: Is the
classification substantially related to an important governmental objec-
tive? Unless and until the Court says otherwise, I believe that we are
bound to uphold our Legislature’s choice to retain dower, because it
passes the substantial relation test and also may reasonably be distin-
guished from the cases involving marital laws cited by the dissent.

IV. CONCLUSION: THE UNIQUE STATUS OF DOWER IN MICHIGAN

I close by directly addressing the dissent’s opening question:

“whether Michigan alone among the 50 states may continue to confer a
dower right on women, without offering a corresponding right to men.”
Post at 927. In answering “Yes,” I have already explained that Michigan
women have historically relied on dower and that Michigan falls well
behind the national average for wage-equality between the sexes.25
I also note that Michigan courts join courts throughout the nation in
employing a strong presumption of constitutionality in favor of a legis-
lature’s acts. As we observed in Sears v Cottrell, 5 Mich 251, 259 (1858):

No rule of construction is better settled in this country, both

upon principle and authority, than that the acts of a state legisla-
ture are to be presumed constitutional until the contrary is shown;
and it is only when they manifestly infringe some provision of the
constitution that they can be declared void for that reason. In

25
See n 7 of this statement.
 ACTIONS ON APPLICATIONS 925
cases of doubt, every possible presumption, not clearly inconsis-
tent with the language and the subject matter, is to be made in
favor of the constitutionality of the act.

As the judicial branch of government, “[w]e are duty bound under the
Michigan Constitution to preserve the laws of this state . . . .” People v
Bricker, 389 Mich 524, 528 (1973). Accordingly, “[w]e exercise the power
to declare a law unconstitutional with extreme caution, and we never
exercise it where serious doubt exists with regard to the conflict.”
Phillips v Mirac, Inc, 470 Mich 415, 422 (2004). Indeed, as the dissent
acknowledges, “declaring a statute unconstitutional is ‘ “the gravest and
most delicate duty that this Court is called on to perform” ’ . . . .”
People v Lynch, 410 Mich 343, 352 (1981), quoting United States v Raines,
362 US 17, 20 (1960), in turn quoting Blodgett v Holden, 275 US 142, 148
(1927) (Holmes, J.). See post at 928.
To this end, I would also note that Michigan is not alone in concluding
that dower is constitutional. Courts in Utah and Florida upheld dower in
response to claims that it violated equal protection, albeit before the
intermediate scrutiny standard of review was established for gender-
based classifications. In re Baer Estate, 562 P2d 614 (Utah, 1977), app dis
for want of a substantial federal question 434 US 805 (1977);26 In re
Rincon Estate, 327 So 2d 224 (Fla, 1976).27 Moreover, the fact our sister
states have since amended their dower laws, post at 927 n 1, does not
render such laws unconstitutional. Although Michigan alone continues to
confer a dower right on widows only, the nationwide consensus or polling
approach to applying the mandates of the Fourteenth Amendment has
been criticized for good reason.
United States Supreme Court Justice Harlan counseled that, when
courts endeavor to “ascertain those ‘immutable principles . . . of free
government which no member of the Union may disregard,’ ” they must

26
In Baer Estate, 562 P2d at 616, the Utah Supreme Court noted “a
presumption of constitutionality of legislative enactments” and con-
cluded that the “Utah statute serves a policy of long standing which
cushions the financial impact of spousal loss upon the sex for which that
loss imposes a disproportionately heavy burden,” citing Kahn.
27
In Rincon Estate, 327 So 2d at 226, the Florida Supreme Court
concluded that “where a statute’s differing treatment of widows and
widowers rests on some ground of reasonable difference having a fair and
substantial relation to the object of the legislation, that statute does not
violate the equal protection clauses of our statute and federal constitu-
tions.” The court also noted that the “drafters of the 1968 [Florida]
Constitution intended to vest authority in the Legislature to make a
distinction between the sexes with respect to providing rights of a wife in
the property of her husband without requiring that the husband be
granted reciprocal rights” because the constitution provided that
“ ‘dower or curtesy may be established and regulated by law.’ ” Id.
926 482 MICHIGAN REPORTS
do so by examining the constitutional language and maintaining “due
recognition of constitutional tolerance for state experimentation and
disparity . . . .” Duncan v Louisiana, 391 US 145, 176 (1968) (Harlan,
J., dissenting), quoting Holden v Hardy, 169 US 366, 389 (1898). He
observed that the “ ‘Fourteenth Amendment does not profess to secure to
all persons in the United States the benefit of the same laws and the same
remedies. Great diversities in these respects may exist in two States
separated only by an imaginary line.’ ” Duncan, 391 US at 177, quoting
Missouri v Lewis, 101 US 22, 31 (1879). Thus, the Fourteenth Amend-
ment does not “impose nationwide uniformity in details . . . .” Duncan,
391 US at 177. Chief Justice Burger offered a similar observation in
Baldwin v New York, 399 US 66, 77 (1970) (Burger, C.J., dissenting),
quoting the Baldwin majority: “That the ‘near-uniform judgment of the
Nation’ is otherwise than the judgment in some of its parts affords no
basis for me to read into the Constitution something not found there.”
Finally, in his compelling dissent in New State Ice Co v Liebmann, 285 US
262, 311 (1932), Justice Brandeis cautioned:

To stay experimentation in things social and economic is a

grave responsibility. Denial of the right to experiment may be
fraught with serious consequences to the Nation. It is one of the
happy incidents of the federal system that a single courageous
State may, if its citizens choose, serve as a laboratory; and try novel
social and economic experiments without risk to the rest of the
country. This Court has the power to prevent an experiment. . . .
But in the exercise of this high power, we must be ever on our
guard, lest we erect our prejudices into legal principles. If we
would guide by the light of reason, we must let our minds be bold.

Perhaps most tellingly, he added: “The remedy might bring evils worse
than the present disease.” Id. at 309. Although other states have chosen
not to retain gender-based dower laws, nothing in the constitution
prohibits Michigan from doing so. Rather than being novel or a new
experiment, dower has become unique to Michigan, but this does not
mean that it has become unconstitutional. Our Legislature made an
explicit contemporary decision to defy the norm by retaining dower even
though the nationwide Uniform Probate Code, on which our EPIC is
modeled, abolishes dower. I would uphold our Legislature’s conclusion
that our age-old dower scheme still serves an important governmental
objective and remains necessary in the economic and social climate of our
state.
In sum: Yes, Michigan may continue to confer a dower right on women
even if it is the only state to do so. Although imperfect, the dower scheme
is substantially related to the particular economic disadvantages suffered
disproportionately by widows in Michigan. Its substantial relationship to
these real-world differences between male and female surviving spouses
confirms that dower is not merely rooted in archaic stereotypes. Finally,
dower is distinguishable from the laws cited by the dissent because dower
does not denigrate women or devalue their earnings. Moreover, no
 ACTIONS ON APPLICATIONS 927
existing nondiscriminatory process can provide widows with similar
protection. Accordingly, in my view, our Court would not be constitution-
ally justified in depriving the Legislature of dower as a unique tool
providing a minimum level of security for widows.
WEAVER, J. I join the statement of Justice CORRIGAN.
CAVANAGH, J. (dissenting). I respectfully disagree with the majority’s
determination that the question presented in this case should not be
reviewed by this Court. Respondent raises an equal protection challenge
to two Michigan statutes that establish a widow’s right to dower while
denying the same benefits to widowers. In my estimation of the United
States Supreme Court’s modern constitutional jurisprudence, this statu-
tory scheme’s use of a gender-based classification violates the Equal
Protection Clause of the United States Constitution. The question
presented is jurisprudentially significant, as it asks whether Michigan
alone among the 50 states may continue to confer a dower right on
women, without offering a corresponding right to men.1 I believe that
this Court should issue an opinion on the merits to resolve this matter.
Petitioner Sharon Miltenberger was married to James Miltenberger
when he died in January 2004. However, she had filed for divorce in
October 2003 and had moved out of the marital residence. In November
2003, while the divorce was pending, James Miltenberger quitclaimed
two parcels of land to respondent Sandra Swartz, his daughter from a
previous marriage. James Miltenberger had been the legal titleholder of
the two parcels, which contained buildings that had been used as his
office and the marital residence. James Miltenberger executed a will in
January 2004 that devised his entire estate to Swartz, leaving his two
other children and his wife nothing; he died on January 18, 2004. Sharon
Miltenberger (hereafter Miltenberger) petitioned for probate and the
appointment of a personal representative. Probate proceedings deter-
mined that the value of the estate’s assets totaled $16,745.48, but after
subtracting expenses, the balance was $8,823.06. The parcels conveyed
by James Miltenberger were not included in the inventory of the estate.
Miltenberger filed a petition to make a late election to take her dower
right under MCL 700.2202(2) and MCL 558.1. Swartz moved for sum-
mary disposition, seeking, in relevant part, to dismiss the petition as
untimely and as unconstitutional on the ground that permitting a widow
to make a dower election would violate the equal protection clauses of the
Michigan and United States constitutions. The probate court permitted
Miltenberger to elect to take her dower right, concluding that the dower
election was neither untimely nor unconstitutional, and denied Swartz’s
motion for summary disposition. Swartz appealed on the constitutional
ground, and the Court of Appeals affirmed the probate court’s decision in
a published opinion. In re Miltenberger Estate, 275 Mich App 47 (2007).

1
Although it is of no constitutional moment that Michigan stands
alone among the 50 states with regard to gender-based dower, I believe
that this circumstance likely reflects the thinking of our sister states that
such a distinction cannot properly be drawn in light of the Supreme
Court’s equal protection decisions of the past two generations.
928 482 MICHIGAN REPORTS
As a preface to considering the constitutionality of Michigan’s dower
statutes, I recognize that it is a matter of considerable consequence for a
judge to strike down an enactment of the Legislature. “[D]eclaring a
statute unconstitutional is the gravest and most delicate duty that this
Court is called on to perform.” People v Lynch, 410 Mich 343, 352 (1981)
(citations and quotation marks omitted). However, with regard to the
meaning of the United States Constitution, the decisions of the United
States Supreme Court are controlling. Cooper v Aaron, 358 US 1, 18
(1958). Several United States Supreme Court cases that have scrutinized
laws containing gender distinctions lead me to conclude that Michigan’s
gender-based dower scheme cannot be sustained.
The Equal Protection Clause of the United States Constitution
declares that “[n]o State shall make or enforce any law which shall-
. . . deny to any person within its jurisdiction the equal protection of the
laws.” US Const, Am XIV.2 Swartz challenges the Michigan statutory
scheme that gives widows, but not widowers, a right and option to elect
dower, arguing that it is an unjustified gender-based classification that
violates equal protection.
It is readily apparent that the statute recognizing dower interests,
MCL 558.1, discriminates on the basis of gender. The statute provides:
“The widow of every deceased person, shall be entitled to dower, or the
use during her natural life, of 1/3 part of all the lands whereof her husband
was seized of an estate of inheritance, at any time during the marriage,
unless she is lawfully barred thereof.” The statute recognizes a particular
property right available only to widows, who are, by definition, always
women. There is no corresponding property right available to widowers,
who are always men. Michigan’s Estates and Protected Individuals Code
(EPIC), MCL 700.1101 through 700.8102, uses an identical gender
classification in its treatment of surviving spouses. EPIC provides that if
an individual died testate, the surviving spouse may elect one of the
following:

(a) That the spouse will abide by the terms of the will.
(b) That the spouse will take 1/2 of the sum or share that would
have passed to the spouse had the testator died intestate, reduced
by 1/2 of the value of all property derived by the spouse from the
decedent by any means other than testate or intestate succession
upon the decedent’s death.
(c) If a widow, that she will take her dower right under sections
1 to 29 of 1846 RS 66, MCL 558.1 to 558.29. [MCL 700.2202(2).] [3]

2
Given the conclusion that the dower statutes violate the Equal
Protection Clause of the United States Constitution, pursuant to the
United States Supreme Court’s interpretation of this clause, it is unnec-
essary to address whether the statutes also violate the Equal Protection
Clause of the Michigan Constitution, Const 1963, art 1, § 2.
3
MCL 700.2202(1) provides a similar choice for a widow whose
husband died intestate.
 ACTIONS ON APPLICATIONS 929
Thus, under MCL 700.2202(2), a male surviving spouse may choose to
abide by the terms of his deceased wife’s will, or he may take the elective
share described in subdivision b. A female surviving spouse has both of
the options that are available to men, but has the additional option to
elect to take her dower right.
Given that these two statutes operate by classifying individuals on the
basis of gender, the question is whether that classification violates the
Equal Protection Clause of the United States Constitution. The level of
scrutiny courts must apply to such classifications is well established and
is referred to as “intermediate scrutiny.” Clark v Jeter, 486 US 456, 461
(1988). A party seeking to uphold a statute that discriminates on the
basis of gender has the burden of showing an “ ‘exceedingly persuasive
justification’ ” for the classification. Mississippi Univ for Women v
Hogan, 458 US 718, 724 (1982) (citation omitted). “The burden . . . is on
those defending the discrimination to make out the claimed justifica-
tion . . . .” Wengler v Druggists Mut Ins Co, 446 US 142, 151 (1980). “To
withstand constitutional challenge, . . . classifications by gender must
serve important governmental objectives and must be substantially
related to achievement of those objectives.” Craig v Boren, 429 US 190,
197 (1976). In cases involving gender-based classification, the United
States Supreme Court has counseled that
[a]lthough the test for determining the validity of a gender-based
classification is straightforward, it must be applied free of fixed
notions concerning the roles and abilities of males and females.
Care must be taken in ascertaining whether the statutory objec-
tive itself reflects archaic and stereotypic notions. Thus, if the
statutory objective is to exclude or “protect” members of one
gender because they are presumed to suffer from an inherent
handicap or to be innately inferior, the objective itself is illegiti-
mate. [Hogan, 458 US at 724-725.]
The Court has also cautioned that “[l]egislative classifications which
distribute benefits and burdens on the basis of gender carry the inherent
risk of reinforcing stereotypes about the ‘proper place’ of women and
their need for special protection.” Orr v Orr, 440 US 268, 283 (1979).
“The State’s justification for [a gender-based] classification ‘must not
rely on overbroad generalizations about the different talents, capacities,
or preferences of males and females.’ ” Nevada Dep’t of Human Re-
sources v Hibbs, 538 US 721, 729 (2003) (citation omitted). In sum, to
justify a gender-based classification, the proponent of the discriminatory
statute must show an exceedingly persuasive justification for the classi-
fication, which requires, at the least, that the classification serves
important governmental objectives and substantially relates to the
achievement of those objectives. Nguyen v Immigration & Naturalization
Service, 533 US 53, 70 (2001).
As a preliminary matter, it is notable that the United States Supreme
Court has been the most unyielding in its rejection of gender distinctions
in the realm of marital law. See, for example, Wengler, 446 US 142
(striking down Missouri’s workers’ compensation provision that required
a widower to prove dependence on his wife’s earnings before he could
930 482 MICHIGAN REPORTS
receive death benefits, but did not require a widow to prove dependence
on her husband’s earnings before she could receive death benefits); Orr,
440 US 268 (striking down Alabama’s alimony statutes that provided
that husbands, but not wives, may be required to pay alimony upon
divorce); Califano v Goldfarb, 430 US 199 (1977) (striking down the
federal Old-Age, Survivors, and Disability Insurance Benefits program,
which required a widower to prove dependence on his wife to receive
survivors’ benefits, but did not require a widow to prove dependence on
her husband to receive survivors’ benefits); Weinberger v Wiesenfeld, 420
US 636 (1975) (striking down the Social Security Act provision that
provided benefits to widows with minor children, but not widowers);
Frontiero v Richardson, 411 US 677 (1973) (striking down a federal
statute that required a servicewoman’s husband to prove dependency in
order to obtain increased quarters allowances and medical and dental
benefits, but did not require a serviceman’s wife to prove dependency to
obtain these same benefits); and Reed v Reed, 404 US 71 (1971) (striking
down an Idaho statute that provided that the husband must be preferred
over the wife for the purpose of appointing their son’s estate adminis-
trator). In such cases, encompassing most of the significant gender
discrimination cases of the past two generations, the Court has repeat-
edly struck down gender distinctions in areas affecting married persons.
Mindful of this precedent, I turn to the first step in equal protection
analysis—examining the professed governmental objectives served by
providing a dower right to widows but not widowers. There are several
potential objectives arguably served by this statutory scheme: offsetting
the disabilities of coverture, cushioning the financial effect of spousal loss
on the gender that is particularly burdened by such a loss, and remedying
historic economic discrimination against women.
The governmental objective of offsetting the disabilities of coverture
is easily dismissed given the modern status of married women, but it
nonetheless provides relevant historical context. The common law im-
posed severe economic disadvantages on married women. The term
“coverture” was used to describe the condition of being a married
woman, which carried the particular disabilities of that status.4 This
Court described some of the disabilities that attached to coverture in
Tong v Marvin, 15 Mich 60, 66 (1866):

The control which a husband has over the person and estate of
his wife at the common law is so great and so liable to abuse that
it has for a long time been the subject of complaint, and of frequent
interposition by courts of equity. He had (1) The control of her
person, and the right to appropriate her earnings to his own use;
(2) He became by the marriage the owner of such personal estate as
she then possessed, and of all that she should thereafter acquire
during coverture; (3) He had a right to reduce her choses in action
to possession, and to dispose of her chattel interests in lands to his

4
Black’s Law Dictionary (7th ed).
 ACTIONS ON APPLICATIONS 931
own use; (4) He became vested with her estate of inheritance
during the coverture, and if he survived her, and issue capable of
inheriting it had been born to them, he had a life estate therein;
and (5) In case of their separation, he had the better right to the
control and custody of the children of the marriage. [Emphasis
added.]

As relevant here, coverture stripped a married woman of any indi-

vidual rights to property she owned before the marriage or acquired
during the marriage. Tong also described “the corresponding rights of the
wife” at common law as:

(1) A right to support, and to have her debts before marriage

paid by the husband; and, (2) A life interest in the one-third part of
his estates of inheritance if she survived him. To these equity
added, (3) An equity to a reasonable settlement, to be made from
the property brought by her to the husband, for the support of
herself and her children . . . . [Id. (emphasis added).]

At common law, dower, a life interest in 1/3 of a husband’s estates of

inheritance, was designed to offset the burdens of coverture. A woman
who owned property before marriage lost ownership of that property
when she married, which was a potentially significant economic loss.
Once married, any property a woman acquired, such as by inheritance,
became the husband’s property. In place of the property rights lost, a
woman acquired a life interest in 1/3 of her husband’s real property.
Though not necessarily an equal exchange, dower partially offset the
economic loss a woman potentially endured by virtue of marriage.
Dower was also a device to protect a surviving spouse against the
conveyances or debts of the other spouse. Atkinson, Law of Wills (2d
ed), p 107. If a woman’s husband conveyed any real property during
his lifetime, the conveyance was subject to the widow’s dower right,
unless she had relinquished it. 15 Powell, Real Property, § 85.20[2][c],
p 379. Thus, because of dower rights, a husband cannot convey perfect
title to his real property unless his wife consents. In addition, “[s]ince
a surviving spouse generally takes a dower or curtesy interest free
from debts, these interests may offer more protection than other
spousal protection provisions.” Id. Thus, dower prevented a widow
from being forced from her home by her husband’s creditors or
because her husband had conveyed the property without her consent.
Many of the purposes of dower recognized at common law have
vanished with the advancement of women’s economic and social rights.
Beginning in the nineteenth century, married women’s property acts
were passed to remove the disabilities of coverture. Married women were
given the power to convey and acquire real property, retain ownership of
property owned before or during the marriage, sue and be sued as
932 482 MICHIGAN REPORTS
separate legal entities, and enter into contracts.5 The 1963 Michigan
Constitution fully abolished the disabilities of coverture.6 To the extent
that dower’s purpose was to balance the restrictions coverture placed on
a married woman’s ability to own property, modern laws have eliminated
the need for this objective. Accordingly, this particular purpose of dower
cannot serve as an important governmental objective.
Of course, proponents of the classification scheme, including Milten-
berger, have advanced alternative objectives served by the dower provi-
sions. In considering these objectives, it is prudent to mind the admon-
ishment of the United States Supreme Court that “[t]he justification [for
a classification] must be genuine, not hypothesized or invented post hoc
in response to litigation.” United States v Virginia, 518 US 515, 533
(1996). The statutes at issue here are little more than recitations of the
common law; thus, whether dower under these statutes serves a different
or broader purpose than dower served at common law is somewhat
questionable. However, there is some indication that at common law,
dower served more purposes than simply compensating for the disabili-
ties of coverture. Dower may “provide a surviving spouse with a source of
support when the other spouse dies, in order to ensure that the surviving
spouse will not be left disinherited and destitute . . . .” 28 CJS, Dower
and Curtesy, § 2, p 106. Dower has also been characterized as “a
reasonable product of a society in which most wealth consisted of land,
and in which there was a desire to provide at least a modest social

5
Section 1 of 1855 PA 168 provided

[t]hat the real and personal estate of every female, acquired

before marriage, and all property, real and personal, to which
she may afterwards become entitled, by gift, grant, inheritance,
devise, or in any other manner, shall be and remain the estate
and property of such female, and shall not be liable for the
debts, obligations and engagements of her husband, and may
be contracted, sold, transferred, mortgaged, conveyed, devised
or bequeathed by her, in the same manner and with the like
effect as if she were unmarried.

See also 1911 PA 196; 1917 PA 158.

6
Const 1963, art 10, § 1 provides:

The disabilities of coverture as to property are abolished. The

real and personal estate of every woman acquired before marriage
and all real and personal property to which she may afterwards
become entitled shall be and remain the estate and property of
such woman, and shall not be liable for the debts, obligations or
engagements of her husband, and may be dealt with and disposed
of by her as if she were unmarried. Dower may be relinquished or
conveyed as provided by law.
 ACTIONS ON APPLICATIONS 933
security for surviving widows.” 2 Powell, Real Property, § 15.04[1], p
57. Thus, there is support for the notion that common-law dower served
the broader purpose of providing a means of support for widows, who
were presumed to be financially dependent on their husbands, and,
therefore, particularly vulnerable after losing a spouse.
Further, the adoption of the current dower provisions indicates
that the Legislature believed that dower served more than just the
purpose it served at common law. Even after the disabilities of
coverture were entirely abolished by the 1963 constitution, the
Legislature did not repeal Michigan’s dower provisions. In 1999, the
Legislature repealed the Revised Probate Code (which recognized
dower) and replaced it with EPIC, which bore more resemblance to the
Uniform Probate Code (UPC). The UPC does not contain any provi-
sions recognizing dower. The EPIC provisions were introduced in 1997
in Senate Bill 209; when the bill was originally drafted, it specifically
abolished the right of dower. But the bill was amended to retain the
right of dower and a widow’s right to elect to take dower; the
Legislature enacted this version of the bill. In the absence of any
legislative statement of purpose, it must be assumed the Legislature
believed that dower still served the purpose of providing a means of
support for needy surviving spouses. Dower could also serve the
related purpose of compensating women for past discrimination and
lower earnings during marriage, which often left them more vulner-
able than men following the death of a spouse. The United States
Supreme Court has recognized “that assisting needy spouses is a
legitimate and important governmental objective.” Orr, 440 US at
280. Also, “[r]eduction of the disparity in economic condition between
men and women caused by the long history of discrimination against
women has been recognized as such an important governmental
objective.” Califano v Webster, 430 US 313, 317 (1977). Thus, assuming
that gender-based dower advances the purposes of supporting needy
surviving spouses and remedying past discrimination, it serves impor-
tant governmental objectives.
After determining that the governmental objectives are legitimate
and important, the discriminatory means employed must be evaluated to
determine whether they are substantially related to those objectives. A
close relationship between discriminatory means and valid governmental
objectives is required “to assure that the validity of a classification is
determined through reasoned analysis rather than through the mechani-
cal application of traditional, often inaccurate, assumptions about the
proper roles of men and women.” Hogan, 458 US at 725-726. The United
States Supreme Court has criticized and invalidated statutes based on
“ ‘archaic and overbroad’ ” generalizations that “employ[] gender as an
inaccurate proxy for other, more germane bases of classification.” Craig,
429 US at 198 (citation omitted).
For example, in Goldfarb, 430 US at 216-217, the Court held that the
federal Old-Age, Survivors, and Disability Insurance Benefits program,
which required a widower to prove dependence on his wife to receive
934 482 MICHIGAN REPORTS
survivors’ benefits, but did not require a widow to prove dependence on
her husband to receive survivors’ benefits, violated the Equal Protection
Clause. The Court explained that

the gender-based differentiation created by [the statute]—that

results in the efforts of female workers required to pay social
security taxes producing less protection for their spouses than is
produced by the efforts of men—is forbidden by the Constitution,
at least when supported by no more substantial justification than
“archaic and overbroad” generalizations or “old notions,” such as
“assumptions as to dependency,” that are more consistent with
“the role-typing society has long imposed” than with contempo-
rary reality. [Id. at 206-207 (citations omitted).]

With these principles in mind, the next question is whether the dower
statutes’ gender-based classification and the governmental objective of
supporting needy surviving spouses are substantially related. It is clear
that the gender-based classification relies on generalizations about the
economic status of men and women, thereby employing gender as a proxy
for need. Rather than limiting dower to surviving spouses who demon-
strate that they are indeed left financially vulnerable after the death of a
spouse, the dower statutes simply permit all women, but not men, to elect
dower. The implicit assumption in this system is that gender can be
employed as a proxy for need, and that directing provisions toward
women will necessarily reach those surviving spouses who are left
vulnerable after losing a spouse.
To justify equating gender with need, Miltenberger has presented
several statistics showing that women are more likely to be in poverty
than men. For example, Miltenberger notes that women in general were
37 percent more likely than men to be in poverty in 2004, while women
over 65 were 71 percent more likely than men to be in poverty.7 These
measures are based on census data from that year, which report that 12
percent of women over 65 were in poverty, compared with 7 percent of
men over 65. The statistics that Miltenberger has produced, which show
a general correlation between gender and poverty, do not justify substi-
tuting gender for need. Intermediate-level scrutiny requires a much
closer connection before a law can use gender to presume that a
particular condition is met.
This is not the first time general statistics have been proffered to
justify a discriminatory scheme. The United States Supreme Court has
offered guidance on this matter. The Court has refused to rely on
generalizations even if those generalizations are supported by statistics.
In Weinberger, 420 US at 653, the Court held that the Social Security Act
provision that provided benefits to widows, but not widowers, violated
the equal-protection guarantee of the Fifth Amendment’s Due Process
Clause. The Court explained:

7
Legal Momentum, Reading Between the Lines: Women’s Poverty in
the United States, 2004 (2004), p 1.
 ACTIONS ON APPLICATIONS 935
Obviously, the notion that men are more likely than women to
be the primary supporters of their spouses and children is not
entirely without empirical support. But such a gender-based
generalization cannot suffice to justify the denigration of the
efforts of women who do work and whose earnings contribute
significantly to their families’ support. [Id. at 645 (citation omit-
ted).]

While in some contexts the term “generalization” might be under-

stood to mean a notion that is entirely unverified by evidence, the Court
has understood this term to encompass even notions that are supported
by some evidence. As one commentator has explained:

[T]he Court has recognized that stereotypes, although empiri-

cally grounded, may be rational and impermissible at the same
time. . . . [Therefore,] even when the generalization is empirically
supported, the Court has rejected statutes that classified over-
broadly by gender if more accurate and impartial distinctions
might have been made. [Alexander, Nguyen v INS: The supreme
court rationalizes gender-based distinctions in upholding an equal
protection challenge, 35 Creighton L R 789, 844-845 (2002).]

The Court has made it clear that a “substantial relationship” requires

a palpable connection between gender and the trait for which it serves as
a proxy; this is evident from the traits that have been held not to be
substantially related to gender, even though a substantial correlation
exists. For example, the Court invalidated an Oklahoma statutory
scheme that prohibited the sale of beer to males under the age of 21 and
females under the age of 18, in which the proffered rationale was traffic
safety. Craig, 429 US at 192, 199-200. Consulting the statistics provided
by the proponents of the classification, the Court noted that “[t]he
disparities in 18-20-year-old male-female arrests [in 1973] were substan-
tial for both categories of offenses: 427 versus 24 for driving under the
influence of alcohol, and 966 versus 102 for drunkenness.” Id. at 200 n
8. The most relevant survey, the study of alcohol-related driving offenses
among 18- to 20-year-olds, “broadly establish[es] that .18% of females
and 2% of males in that age group were arrested for that offense.” Id at
201. Yet, the Court concluded that although the correlation was not
statistically trivial, “if maleness is to serve as a proxy for drinking and
driving, a correlation of 2% must be considered an unduly tenuous ‘fit.’ ”
Id. at 201-202. Moreover, a correlation of just 2% was far more tenuous
than other correlations that have been rejected as insufficient. “Indeed,
prior cases have consistently rejected the use of sex as a decisionmaking
factor even though the statutes in question certainly rested on far more
predictive empirical relationships than this.” Id. at 202. For example, in
Reed, 404 US at 71, the Court surmised that the state’s “apparent
premise that women lacked experience in formal business matters
(particularly compared to men) would have proved to be accurate in
substantially more than 2% of all cases.” Craig, 429 US at 202 n
936 482 MICHIGAN REPORTS
13. Despite the demonstrated validity of certain generalizations, the
Court had found the “empirical defense of mandatory dependency tests
for men but not women to be unsatisfactory, even though we recognized
that husbands are still far less likely to be dependent on their wives than
vice versa.” Id. Thus, the statistics presented in Craig did not establish
that gender “represents a legitimate, accurate proxy for the regulation of
drinking and driving.” Id. at 204. Indeed, “proving broad sociological
propositions by statistics is a dubious business, and one that inevitably is
in tension with the normative philosophy that underlies the Equal
Protection Clause.” Id. The Court concluded that “the principles embod-
ied in the Equal Protection Clause are not to be rendered inapplicable by
statistically measured but loose-fitting generalities concerning the drink-
ing tendencies of aggregate groups.” Id. at 208-209.
In the case at hand, the difference in poverty rate between the
genders fails to justify employing gender as a proxy for need under Craig.
In 2004, 12 percent of women over 65 were in poverty, while only 7
percent of men were in poverty.8 This, of course, reflects a verifiable
disparity. But using gender in order to reach the 12 percent of women
who are in poverty is similar to using a gender-based ban on alcohol to
reach the 2 percent of men who would drink and drive. Craig’s admoni-
tion that even correlations that are substantially more accurate than 2
percent have failed intermediate scrutiny is instructive, and compels my
conclusion in this case. To say that gender is an imperfect proxy for need
is an understatement. It is a grossly inaccurate proxy in that it is
potentially overinclusive by 88 percent—namely, it extends dower to the
88 percent of elderly women who do not live in poverty. At the same time,
it summarily denies dower to the 7 percent of elderly men who are in
poverty. The correlation presented by Miltenberger is similar to that
established in Craig; both show a verifiable connection between gender
and a characteristic, but are constitutionally insufficient to establish a
legitimate and accurate proxy for classification purposes.9

8
It is worth noting that the proffered statistics report the poverty rate
among individuals over 65 years of age, not specifically among surviving
spouses. While widows and widowers quite naturally tend to be elderly, it
would be advisable to use these statistics cautiously in light of their
inherent inaccuracies. Moreover, an individual’s income, as calculated
by the census bureau, is not a definitive assessment of need, particularly
the type of need that would be addressed by the remedy of dower.
Specifically, the income calculation does not account for the value
of assets, such as a home, that are owned by the individual. Similarly, the
census bureau’s poverty calculation does not include capital gains or the
value of assets owned by an individual. <http://www.census.gov/
hhes/www/poverty/povdef.html> (accessed July 17, 2008).
9
Of course, being in poverty is only one way of measuring whether a
surviving spouse is particularly needy after losing a spouse. In fact,
Miltenberger’s statistics reveal that men experience a greater propor-
 ACTIONS ON APPLICATIONS 937
In sum, because widows are free to elect dower without regard to
need, the dower provision potentially benefits all widows, whether needy
or not, but likewise deprives all needy widowers of the same protection.
Permitting widows, but not widowers, to elect dower is not substantially
related to the objective of providing support for needy surviving spouses
because it is overinclusive with respect to widows but underinclusive
with respect to widowers.
Further, the Court has held that using gender as a proxy for need is
unwarranted when nondiscriminatory means of determining need are
equally available. In Wengler, 446 US at 152, the United States Supreme
Court held that Missouri’s workers’ compensation provision that re-
quired a widower to prove dependence on his wife’s earnings before he
could receive death benefits, but did not require a widow to prove
dependence on her husband’s earnings before she could receive death
benefits, violated the Equal Protection Clause. The Court explained that
although “[p]roviding for needy spouses is surely an important govern-
mental objective, . . . the needs of surviving widows and widowers would
be completely served either by paying benefits to all members of both
classes or by paying benefits only to those members of either class who
can demonstrate their need.” Id. at 151. The Court explained that the
only justification for the disparate treatment was “the assertion that
most women are dependent on male wage earners and that it is more
efficient to presume dependency in the case of women” and to only
require those few men who are financially dependent on their wives to
prove such dependency. Id. However, the Court held that the bare
assertion of “administrative convenience” does not justify gender-based
discrimination. Id. at 151-152.
Similarly, in Orr, the Court invalidated a statutory scheme providing
that husbands, but not wives, may be ordered to pay alimony. Orr, 440 US
at 270. The Court acknowledged the validity of two legislative purposes
of the statutory scheme: assisting needy spouses (using gender as a proxy
for need), and compensating women for past discrimination. Id. at
280. Nevertheless, the Court determined that the scheme was invalid.
The Court observed that “even if sex were a reliable proxy for need, and

tional loss of income than women after losing a spouse: In 2005, the
median income of married men was $39,789, while the median income of
widowed men was $20,116, a reduction of 49 percent. Marital Status—All
Races 18 Years Old and Over by Median Income and Sex: 1974 to 2006,
<http://www.census.gov/hhes/www/income/histinc/p13ar.html> (access-
ed June 16, 2008). By contrast, the median income of married women was
$20,236, while the median income of widowed women was $14,961, a
reduction of 26 percent. Id. These statistics are only offered by way of
illustration; I acknowledge that these data are rudimentary and do not
account for the effect that variables such as age and retirement would
have on earnings independent of losing a spouse. Regardless, they call
into question Miltenberger’s assertion that gender can predict with
sufficient accuracy whether losing a spouse leaves an individual in an
economically vulnerable position.
938 482 MICHIGAN REPORTS
even if the institution of marriage did discriminate against women,” the
statute already provided for individualized hearings at which the parties’
financial circumstances were considered. Id. at 281-282. Therefore,
“[n]eedy males could be helped along with needy females with little if any
additional burden on the State. In such circumstances, not even an
administrative-convenience rationale exists to justify operating by gen-
eralization or proxy.” Id. at 281. Similarly, individualized hearings could
determine which women were actually discriminated against, and con-
versely, which family units left the husband dependent on the wife. Id. at
281-282. The Court observed that the statutory purposes could be
accomplished without the gender-based classification, at no additional
cost to the state. Id. at 282. Accordingly, “ ‘the gender-based distinction
is gratuitous; without it, the statutory scheme would only provide
benefits to those men who are in fact similarly situated to the women the
statute aids,’ . . . and the effort to help those women would not in any
way be compromised.” Id., quoting Weinberger, 420 US at 653. The
Court concluded that “[w]here . . . the State’s compensatory and ame-
liorative purposes are as well served by a gender-neutral classification as
one that gender classifies and therefore carries with it the baggage of
sexual stereotypes, the State cannot be permitted to classify on the basis
of sex.” Orr, 440 US at 283.
At the very least, Orr teaches that gender classifications may not be
gratuitous; when there is a nondiscriminatory method for achieving the
same objective desired by the government, using gender as a broad proxy
for reaching that objective is unwarranted. The dower provisions cannot
survive Orr’s pronouncement. If the objective of the dower provisions is
to provide security for needy surviving spouses, nondiscriminatory meth-
ods of achieving this objective would serve this goal equally well, if not
better.10 Dower provisions that apply to both males and females equally
would serve the objective of providing security for needy spouses, at no
additional cost or burden to the state. Providing a dower right to
widowers would not affect or impair widows’ dower rights. Dower
provisions that apply to those spouses who demonstrate an actual need
for dower would also serve the objective of providing security for needy
spouses. Because the state’s objectives could be served by nondiscrimi-
natory means, the dower provisions’ gender classification is gratuitous
and constitutionally impermissible under Orr.
Further, the discriminatory dower provisions are not substantially
related to the objective of providing for needy spouses because they are
poorly designed to achieve this objective. In most cases, dower provides
less economic benefit to a widow than the elective share described by

10
While I will not today determine the constitutionality or feasibility of
a hypothetical gender-neutral dower scheme, in response to Justice
CORRIGAN’s suggestion that the Legislature may be precluded from
adopting a gender-neutral dower scheme because such a scheme would
“compromise vested property rights,” ante at 918, I simply note that
perhaps the Legislature could draft a scheme that would avoid Justice
CORRIGAN’s concerns by applying gender-neutral dower prospectively only.
 ACTIONS ON APPLICATIONS 939
MCL 700.2202(2)(b). The dower provisions only afford meaningful assis-
tance in circumstances that are unlikely to arise in modern times. As
commentators have noted, “[w]hile dower may have worked fairly well in
cases of the more fortunate families in agrarian society, it is not usually
adequate in the present condition of urban living in which the average
person owns nothing except personalty and perhaps a single residence.”
Atkinson, supra at 107. Dower is “an inadequate form of social security
in current time since it only gives rights in realty, while current wealth is
concentrated in personal property.” 2 Powell, Real Property, § 15.08, p
95-96. Dower does not directly remedy the economic conditions of
widows, unlike a property-tax exemption or increased social security
benefits. Dower potentially provides a widow a place to live or a source of
rental income, but this benefit is contingent on having been married to a
landowning husband. It would stand to reason that many of the neediest
widows had been married to men who did not own real property, so dower
does not aid them at all when they lose their spouse. For dower’s
classification to be substantially related to the goal of providing assis-
tance to needy surviving spouses, it must demonstrably serve that goal;
given modern realities, it does not.
In contrast to dower’s limited utility in modern times, it is telling that
dower served to directly remedy a number of disabilities of coverture that
existed at common law. The close fit between dower’s remedy and the
disabilities of coverture, compared with the tenuous fit between dower’s
remedy and the circumstances of modern needy surviving spouses, leads
to the inference that dower is, and has always been, truly designed to
substantially relate to offset the disabilities of coverture. Contending that
dower now substantially relates to remedying modern economic dispari-
ties, even though dower has remained unchanged since common law
times, is indicative of a justification that has been advanced “post hoc in
response to litigation.” Virginia, 518 US at 533.
In sum, dower does not substantially relate to the objective of aiding
surviving spouses who are particularly vulnerable after the loss of a
spouse because its classification employs a grossly overbroad proxy to
reach that population, while gender-neutral provisions would serve the
objective just as well. Moreover, dower does not adequately serve the
particular objective that it ostensibly addresses.
Miltenberger has offered additional objectives ostensibly served by
dower, such as remedying economic discrimination women have suffered
during marriage. Miltenberger argues that widows are more likely than
widowers to be needy following the death of a spouse because married
women generally earn less money than married men. But like the goal of
assisting needy surviving spouses, the provision’s classification does not
substantially relate to this objective. Miltenberger has presented statis-
tics showing that married women earned a median income of $20,236 in
2005, while married men earned a median income of $39,789.11 Milten-
berger notes that this demonstrates that the median income of married

11
Marital Status, supra.
940 482 MICHIGAN REPORTS
women was 51 percent of the median income of married men in 2005.12
The census data referenced by Miltenberger establish that, generally,
men earn more than women of the same marital status.13 Id. Milten-
berger argues that these statistics reflect that, despite progress toward
equality, women are still economically disadvantaged relative to men and
are left more vulnerable after losing a spouse because they have enjoyed
less earning power during their married life and afterwards.
The value of these general statistics is questionable. As a threshold
matter, the statistics Miltenberger has presented regarding income
disparity suffer from the same limitations as those used to justify using
gender as a proxy for need. Namely, the United States Supreme Court has
warned that “proving broad sociological propositions by statistics is a
dubious business, and one that inevitably is in tension with the norma-
tive philosophy that underlies the Equal Protection Clause.” Craig, 429
US at 204. In addition, Miltenberger must demonstrate a gender-based
difference within the narrow population reached by MCL 700.2202(2)—
surviving spouses.14 If the classification in § 2202(2) is justifiable, it must
be justified by showing that gender is a valid proxy for need within this
population. Thus, statistics showing the economic disparities present in
the general population are of limited relevance to discerning whether the
gender-based classification is substantially related to addressing an
actual condition present in the population reached by § 2202(2).
However, considering only the evidence of disparate income among
male and female surviving spouses, it is apparent that the correlation
between gender and need is even weaker than the correlation between
gender and alcohol-related driving offenses that was considered insuffi-
cient in Craig. In Craig, the Court refused to generalize on the basis of
statistics that showed that the arrest rate among men was 11 times
higher than the arrest rate among women.15 In the present case, the 2005
census data show that widowed men earned a median income that was
about a third higher (34 percent) than the median income of widowed
women. While one difficulty of engaging in this statistical analysis is that
it does not permit us to compare truly equivalent units, a disparity by a

12
Id.
13
It should be noted that this disparity should not necessarily be
attributed to gender discrimination in the workforce. The fact that
women generally make less money than men may sometimes arise out of
decisions to stay at home or work part-time to care for their families.
14
Technically, the group reached by MCL 700.2202(2) only includes
surviving spouses of individuals who have died testate. This distinction is
not significant, however, because MCL 700.2202(1) applies a synonymous
gender classification to surviving spouses of individuals who have died
intestate.
15
Again, in Craig, 429 US at 201, the proponent of the classification
showed that the arrest rate for women of that age was 0.18 percent while
the corresponding rate for men was 2 percent.
 ACTIONS ON APPLICATIONS 941
factor of a third is statistically less drastic than the disparity by a factor
of 11 that was rejected in Craig.
Moreover, if dower is meant to remedy the income gap between
married women and married men, it only does so in a loosely related
way—by providing a life estate in a portion of lands owned by a woman’s
husband—not by more direct means of reallocating income or other
personal wealth. Dower is not designed to particularly compensate the
economic discrimination women have suffered during their marriage; it
is available to widows regardless of their need or employment history. As
I have already noted, dower is beneficial only under uncommon circum-
stances, which occur independently from the circumstances of a particu-
lar woman’s income history. The loose relationship between the rights
afforded by dower and the objective of remedying past discrimination is
apparent when contrasted with a compensatory scheme that was upheld
by the United States Supreme Court. In Webster, the Court upheld a
portion of the Social Security Act that provided different methods of
computation of social security benefits based on the gender of the worker.
A female worker could exclude from the computation of her average
monthly wage three more lower-earning years than a male worker could
exclude, resulting in a slightly higher average monthly wage and a
correspondingly higher level of monthly old-age benefits for the retired
female worker. Id., 430 US at 315-316. The Court upheld the scheme,
observing that “allowing women, who as such have been unfairly
hindered from earning as much as men, to eliminate additional low-
earning years from the calculation of their retirement benefits works
directly to remedy some part of the effect of past discrimination.” Id. at
318 (emphasis added). The scheme was constitutional because the
remedy of disregarding lowest-earning years was directly related to the
particular harm it sought to address—the demonstrated income disparity
between the genders. By contrast, dower’s remedy of providing a life
estate in a portion of a husband’s lands is only collaterally related to
income disparity. In fact, the relationship is so attenuated that it again
raises the inference that dower is truly only substantially related to the
primary goal it served at common law—offsetting the disabilities of
coverture. Because dower’s gender-based classification is not substan-
tially related to an important governmental objective, I would conclude
that MCL 558.1 and MCL 700.2202(2) are unconstitutional.
The statute that recognizes dower interests, MCL 558.1, is unconsti-
tutional on another ground. That provision creates a dower right in a
husband’s lands in favor of his widow, but no corresponding right in a
wife’s lands in favor of her husband. It impairs a married man’s ability to
convey real property, but does not similarly disadvantage a married
woman. A married man cannot convey his property without the consent
of his wife, but a married woman is free to convey her property without
the consent of her husband. The ability to convey one’s property without
the consent of another is a valuable right; as Justice CORRIGAN observes,
if a man wishes to convey property and his wife does not consent,
presumably “the wife’s contingent rights are reflected in a lower pur-
chase price.” Ante at 916. Permitting a married woman, but not a married
man, to convey perfect title to property without spousal consent is a
942 482 MICHIGAN REPORTS
classification that rests on “no more substantial justification than
‘overbroad’ generalizations, . . . such as ‘assumptions as to dependency,’
that are more consistent with ‘the role-typing society has long imposed,’
than with contemporary reality.” Goldfarb, 430 US at 207 (citations
omitted). The classification “reinforc[es] stereotypes about the ‘proper
place’ of women and their need for special protection.” Orr, 440 US at
283. The implicit assumptions of this classification reflect
stereotypes—as that term is used by the United States Supreme Court
—about both genders: that wives are dependent on their husbands, but
husbands are not dependent on their wives; that men are more likely to
abandon their spouses and must be reined in by a financial tether; that
married men, not married women, tend to own property; and that
husbands typically have the decision-making power in the marriage,
while wives remain oblivious to their husbands’ “business.”16 These
notions are overbroad and constitutionally inadequate for justifying a
gender-discriminatory scheme.
Although holding the gender-based dower provisions unconstitutional
would reduce the options available to widows, it would not represent a
consummate loss to women. Discriminatory statutes that are designed to
benefit a traditionally disadvantaged group may actually impair the
interests of individuals who contravene stereotypes. The dower provi-
sions not only deny men a right that is granted to women, but also
constrain the ability of landowning women to protect their husbands
from their creditors after their death. Precluding men from asserting a
dower right in their wife’s lands provides female landowners fewer
protections than male landowners. Moreover, to the extent that gender-
based dower perpetuates stereotypes about men and women, both
genders would benefit from its termination. Finally, even if this Court
were to hold the dower provisions unconstitutional, the rights and
equities at stake would likely warrant applying the holding with limited
retroactivity, thus applying the decision only to the case at hand and to
pending cases in which the same issue had been raised.
Aside from the jurisprudential significance of this case, I would also
consider the merits because the Court of Appeals decided this case in a
published opinion. In re Miltenberger Estate, 275 Mich App 47 (2007).
The Court of Appeals erred in overlooking Craig and Orr in favor of Kahn
v Shevin, 416 US 351 (1974), which upheld a Florida law that awarded
widows a $500 property tax exemption while providing no corresponding
benefit to widowers. While Kahn has not been overruled, it cannot be
treated as purely analogous to the present case, because it was decided
before the Court established that gender-based classifications are subject
to intermediate-level scrutiny. Kahn applied the highly deferential
rational-basis standard of review: “We deal here with a state tax law

16
The delegates to the 1961 constitutional convention were more
forthright about the assumptions underlying dower than perhaps we are
today, as illustrated by the remark that dower “mean[s] that a husband
who normally takes care of things cannot get rid of all his property
without his wife having to sign off.” See ante at 905.
 ACTIONS ON APPLICATIONS 943
reasonably designed to further the state policy of cushioning the financial
impact of spousal loss upon the sex for which that loss imposes a
disproportionately heavy burden.” Kahn, 416 US at 355. In addition,
Kahn relied heavily on the fact that the provision at issue was a tax
provision, stating, “We have long held that [w]here taxation is concerned
and no specific federal right, apart from equal protection, is imperiled,
the States have large leeway in making classifications and drawing lines
which in their judgment produce reasonable systems of taxation.” Id.
(citation omitted).17 Kahn has some application to the instant case, as
both involve disparate treatment of widows and widowers; but it is
critical to recognize that Kahn was not decided under the current
standard of review for gender classification cases. Therefore, it is more
appropriate to evaluate dower’s constitutionality under the guidance of
Craig and Orr, which applied intermediate scrutiny.
In addition, the Court of Appeals reference to dower’s recognition in
the Michigan Constitution is potentially misleading. The fact that the
Michigan Constitution refers to dower, providing that “[d]ower may be
relinquished or conveyed as provided by law,” does not bear on whether
the dower provisions enacted by the Legislature violate equal protection.
Const 1963, art 10, § 1. The directive that dower may be relinquished or
conveyed is not an endorsement of the institution of dower, but merely a
notification that the Legislature may pass laws concerning the convey-
ance of dower rights. Accordingly, determining that Michigan’s dower
provisions violate equal protection does not fail to afford article 10, § 1
equal dignity; invalidating the discriminatory dower provisions does not
infringe on Legislature’s ability to pass laws concerning the relinquish-
ment or conveyance of dower.
Before concluding, I wish to respond to Justice CORRIGAN’s concur-
rence. Justice CORRIGAN concludes that Michigan’s discriminatory dower
statute is sufficiently related to its goals to survive equal protection
review. But to reach this conclusion, she relies on an incorrect standard

17
Justice CORRIGAN appears to misconstrue this quotation as indicating
that states have leeway in making classifications unless equal protection
is imperiled, but it actually indicates that tax-related classifications enjoy
particular deference when courts evaluate whether the classification
violates equal protection. Ante at 912. For example, the United States
Supreme Court observed that in an Equal Protection Clause challenge,
“[t]he appropriate standard of review is whether the difference in
treatment . . . rationally furthers a legitimate state interest. . . . This
standard is especially deferential in the context of classifications made by
complex tax laws.” Nordlinger v Hahn, 505 US 1, 11. Accordingly,
between Kahn’s reference to the deferential standard accorded to tax-
related classifications and its use of rational-basis language, there is
ample indication that Kahn applied a more deferential standard of review
to the law at issue in that case than the intermediate scrutiny that
applies to the provisions here.
944 482 MICHIGAN REPORTS
of review, minimizes the relevance of controlling United States Supreme
Court precedent, and eases the burden applicable to the proponent of the
classification.
While Justice CORRIGAN purports to apply intermediate-level scrutiny,
her analysis indicates otherwise. Her statement repeatedly insinuates
that I would apply strict scrutiny by requiring dower to be perfectly
related to its goals. In fact, I never hold dower to such a high standard or
even once mention the word “perfect” in my discussion of the fit between
the statute’s classification and its goals. Meanwhile, Justice CORRIGAN
wages a vigorous one-sided argument to counter the suggestion that
dower must be perfectly related to its goals.18 This argument is a red
herring, both because it is nonresponsive to my position and because it
implies that if equal protection does not require a perfect fit between a
classification and its goals, then it only requires a rational one. Notably,
Justice CORRIGAN’s rhetoric is similar to language that the United States
Supreme Court has employed when it has applied rational-basis scrutiny,
the most deferential standard. “But where rationality is the test, a State
‘does not violate the Equal Protection Clause merely because the
classifications made by its laws are imperfect.’ ” Nguyen, 533 US at
77-78, quoting Dandridge v Williams, 397 US 471, 485 (1970).
Justice CORRIGAN’s statement also purports to apply intermediate
scrutiny, but essentially applies rational-basis review by following Kahn
rather than heeding the directives set by Orr and Craig. I will not
reiterate the arguments presented earlier, but I must address in particu-
lar the distinction drawn between this case and Craig. Justice CORRIGAN
distinguishes Craig because the correlation between gender-based dower
and its goals “rests on more than the mere ‘loose-fitting generalities’. . .
presented in Craig.” Ante at 914. Justice CORRIGAN argues that, unlike
Craig, this case presents “a clear correlation between widows and
economic need, as well as past economic discrimination.” Ante at 914.
However, when the statistics presented in Craig are compared with the
relevant statistics presented in this case, it is apparent that there is no
sound basis for distinguishing Craig. See pages 936 and 940-941. Justice
CORRIGAN also distinguishes Craig because the statute in Craig was
designed to promote traffic safety, rather than the “ ‘laudatory pur-
pose[]’ ” of remedying economic disparity. Ante at 913, quoting Craig, 429

18
“The dissent’s point is well-taken, however, that gender is an
imperfect proxy for need among surviving spouses.” Ante at 903. “[T]he
Court did not hold the Social Security Act benefits scheme at issue in
Weinberger unconstitutional because it employed gender as an imperfect
proxy for need.” Ante at 915. “But dower is not unconstitutional merely
because it is imperfect.” Ante at 916. “[D]ower is not a perfect proxy for
need or a complete remedy for past discrimination even within the
relevant population of surviving spouses. But dower is not as
imperfect—or as easily replaced—as the dissent suggests.” Ante at 917.
“Although imperfect, the dower scheme is substantially related to the
particular economic disadvantages suffered disproportionately by widows
in Michigan.” Ante at 926.
 ACTIONS ON APPLICATIONS 945
US at 198 n 6. Justice CORRIGAN seems to imply that courts applying
intermediate scrutiny are more deferential to statutes serving clearly
laudatory purposes. If so, this distinction is unfounded. The Craig Court
did not hold the statute unconstitutional because it failed to serve an
important government objective; the Court held the statute unconstitu-
tional because it was not substantially related to that objective. In this
case, the validity of the dower provisions’ objectives are not seriously
disputed; the controlling inquiry is the sufficiency of the relationship
between the objectives and the provisions’ classifications. Accordingly,
even though the statute in Craig was not aimed at remedying economic
discrimination, the Court still applied intermediate scrutiny, and its
consideration of the relationship between that statute’s classification and
its goals is entirely applicable to the instant case. The conclusion that
Michigan’s dower statute is not substantially related to any of its
purported objectives is supported, and indeed compelled, by Craig and
the modern Supreme Court cases applying intermediate scrutiny to
gender-discriminatory statutes.
In addition, Justice CORRIGAN fails to recognize that this case involves
a dispute that falls within a subclass of gender discrimination cases, i.e.,
gender discrimination in the realm of marital law. As discussed earlier,
the United States Supreme Court has been the most unyielding in its
rejection of gender distinctions in this particular subclass of cases.
However, unlike race-based or nationality-based distinctions, in which
strict scrutiny has resulted in virtually no tolerance for statutory
distinctions between people of different races or nationalities, interme-
diate scrutiny has resulted in the acceptance of some gender-based
distinctions, e.g., Rostker v Goldberg, 453 US 57 (1981) (upholding the
Military Selective Service Act, which authorizes the President to require
the registration for possible military service of males, but not females)
—but simply not in the realm of marital law. Thus, when she equates
strict scrutiny with the intermediate scrutiny that I employ in this case,
ante at 903, she fails to account for the Court’s treatment of the subclass
of gender discrimination cases in the realm of marital law. In fact, Justice
CORRIGAN effectively concedes that my approach is consistent with pre-
vailing United States Supreme Court law when she observes that “Justice
CAVANAGH’s analysis resembles strict scrutiny in part because the Su-
preme Court’s analyses resemble strict scrutiny, particularly in the
post-Kahn marital arena.” Ante at 923. This Court is bound to follow
Supreme Court precedent, regardless of whether there are dissenting
voices that criticize those decisions.
Finally, Justice CORRIGAN eases the burden on the proponent of the
classification by supplying data and arguments in support of the classi-
fication beyond that which the proponent presented. Offering unsolicited
assistance to the proponent of a classification is a hallmark of rational-
basis review, not intermediate scrutiny. Courts applying rational-basis
review must uphold classifications “if there is any reasonably conceivable
state of facts that could provide a rational basis for the classification.”
Heller v Doe by Doe, 509 US 312, 320 (1993). By contrast, under
intermediate scrutiny, “[t]he burden of justification is demanding and it
rests entirely on the State.” Virginia, 518 US at 533. Justice CORRIGAN
946 482 MICHIGAN REPORTS
does not adhere to this burden by considering only the data and
arguments advanced by Miltenberger. For example, Justice CORRIGAN
offers statistics relating to social security benefits that were never
mentioned by Miltenberger. Ante at 908-909. Justice CORRIGAN also
augments Miltenberger’s position by sua sponte advancing the argument
that the classification is justified because women have longer life expect-
ancies, and by supplying a vital statistics report that was not referenced
by Miltenberger. Ante at 909. Justice CORRIGAN acknowledges that she has
eased Miltenberger’s burden, but argues that such treatment is neces-
sary because only a single private attorney presented a defense of the
scheme. Ante at 902 n 1. I disagree with the proposition that the
proponent’s burden should be eased merely because the proponent is
represented by a single private attorney. Moreover, even if the state had
been better equipped to defend these statutes, I would not supply the
state’s arguments in this case simply because the state declined to
participate. The constitutional issue presented was readily apparent from
our grant order in this case. In re Miltenberger Estate, 480 Mich 976
(2007). The state could have filed an amicus curiae brief, but did not.
MCR 7.306(D). The state, acting through the Attorney General, could
have also moved to intervene at any stage of this case if it was interested
in defending the constitutionality of gender-based dower, but it did not.
See MCL 14.28, MCL 14.101.
In conclusion, I dissent from the order in this case that vacates our
order granting leave to appeal. I would determine the merits of this case,
holding that the gender-discriminatory dower scheme found in MCL
700.2202(2) and MCL 558.1 violates the Equal Protection Clause of the
United States Constitution.
MARKMAN, J. I join the statement of Justice CAVANAGH.

Summary Disposition August 1, 2008:

BORGESS MEDICAL CENTER V RESTO, No. 133223. By order of October 3,

2007, the application for leave to appeal the January 9, 2007, judgment of
the Court of Appeals was held in abeyance pending the decision in Ross
v Auto Club Group (Docket No. 130917). On order of the Court, the case
having been decided on May 7, 2008, 481 Mich 1 (2008), the application
is again considered and, pursuant to MCR 7.302(G)(1), in lieu of granting
leave to appeal, we vacate the majority opinion in Borgess Medical Ctr v
Resto, 273 Mich App 558 (2007), and affirm the judgment of the Court of
Appeals for the reasons stated in the concurring opinion. The motion for
leave to file a brief amicus curiae by Phu Tran et al. is granted. Reported
below: 273 Mich App 558.

Leave to Appeal Denied August 1, 2008:

PEOPLE V KILPATRICK, No. 136835; Court of Appeals No. 285794.
KELLY, J. (concurring). I concur in the decision to deny leave to appeal
because the lower court decisions are consistent with MCR 2.003(B), the
court rule regarding judicial disqualification. But I write to voice my
 ACTIONS ON APPLICATIONS 947
concern that, in its current form, the court rule is inadequate to assure
that only unbiased judges hear cases.
MCR 2.003(B)(1) requires disqualification if “[t]he judge is personally
biased or prejudiced for or against a party or attorney.”1 This Court has
interpreted this language to require the party challenging a judge to show
actual bias.2 I question whether imposing such a heavy burden is
appropriate, because clearly there are cases in which a party cannot show
actual bias, yet judicial disqualification should be required.
For example, in Special Wayne Prosecutor v Recorder’s Court Judges,3
the underlying matter was the criminal prosecution of a Recorder’s Court
judge. The judge had been charged by a citizen’s grand jury. It appeared
that all the judges of the Recorder’s Court were subjects of the grand jury
investigation. On the prosecutor’s motion, this Court ordered the recusal
of the entire Recorder’s Court bench.
It appears that this was a wise decision. If a sitting Recorder’s Court
judge had dismissed the charges against the indicted judge, the public
reasonably could have seen it as an act of “self-protection.” It could have
been viewed as an attempt by the sitting judge to interfere with the
criminal investigation into his or her own behavior.
But I question whether MCR 2.003(B) would permit us to order the
recusal of an entire bench under the same circumstances today. The court
rule did not exist when Special Wayne Prosecutor was decided.4 No other
Recorder’s Court judges had been indicted when the motion came before this
Court to recuse the entire bench. Nor was there any proof that other judges
would be indicted. There was only speculation. Thus, there was no actual
bias, only the appearance of bias. I think that the Court should amend MCR
2.003(B) to ensure that, if a case like Special Wayne Prosecutor were to arise
again, it would be proper for us to disqualify the entire bench.
Amending the court rule to include an “appearance of bias” standard
has support in the law beyond our jurisdiction. Federal law requires a
federal judge to disqualify himself or herself “in any proceeding in which
his impartiality might reasonably be questioned.”5 A number of states

1
MCR 2.003(B) provides other instances where disqualification is
required. It is clear that none of them requires disqualification of the
entire 36th District Court bench in this case. In addition, “where the
requirement of showing actual bias or prejudice under MCR 2.003(B)(1)
has not been met, or where the court rule is otherwise inapplicable,
parties have pursued disqualification on the basis of the due process
impartiality requirement.” Cain v Dep’t of Corrections, 451 Mich 470, 497
(1996). No due process violation has been alleged in this case.
2
Id. at 495.
3
Special Wayne Prosecutor v Recorder’s Court Judges, 409 Mich 1119
(1980).
4
The court rule became effective March 1, 1985. Special Wayne
Prosecutor was decided in 1980.
5
28 USC 455.
948 482 MICHIGAN REPORTS
provide similar standards for disqualification.6 And members of this
Court have voiced approval for a similar standard in the past.7
Unlike in the Special Wayne Prosecutor case, there is in this matter no
suggestion of wrongdoing on the part of any of the judges of the 36th
District Court. Moreover, I am not suggesting that I would vote to recuse
the entire bench, even if the court rule clearly allowed it upon an
adequate showing of the appearance of bias. But, as the rule now stands,
the appearance of bias, however strong, will not be so much as considered
by this Court. This situation must be remedied.
CAVANAGH, J. I join the statement of Justice KELLY.
WEAVER, J. I would grant immediate consideration and reverse the
Court of Appeals and remand this case to the Court of Appeals for
expedited consideration as on leave granted.
MACOMB TOWNSHIP V MICHAELS, No. 136923; Court of Appeals No.
286640.

Appeal Dismissed August 1, 2008:

PAPPAS V BORTZ HEALTH CARE FACILITIES, INC, No. 128864; Court of

Appeals No. 251144.
GENERAL MOTORS CORPORATION V ROYAL & SUN ALLIANCE USA, INC, No.
134069; Court of Appeals No. 267308.
FEDEWA V ROBERT CLANCY CONTRACTING, INC, Nos. 136065 and 136096;
Court of Appeals No. 274088.

Summary Disposition August 7, 2008:

MARKER V MARKER, No. 136721. Pursuant to MCR 7.302(G)(1), in lieu

of granting leave to appeal, we remand this case to the Huron Circuit
Court, Family Division, for further proceedings. Consistently with MCL
722.31(4), we order that court to make specific findings of fact and
conclusions of law on the record regarding the defendant’s motion to
change the domicile of the minor children. If necessary to make a
complete record, the family court may order an investigation be com-
pleted by the Friend of the Court and/or may conduct an evidentiary
hearing on the matter. In the event that the family court grants the
change in domicile, and the change would effectively alter the established
custodial environment of the children, the family court shall further
require the defendant to prove by clear and convincing evidence that the
change would be in the best interests of the children. If such a determi-
nation is necessary, the family court shall evaluate the best-interest

6
See, e.g., Jefferson-El v State, 330 Md 99 (1993), for application of an
“appearance of impartiality” standard.
7
Adair v Michigan, 474 Mich 1027, 1043 (2006) (statement of CAVANAGH,
J.); Id. at 1046 (statement of WEAVER, J.); Id. at 1051 (statement of KELLY, J.).
 ACTIONS ON APPLICATIONS 949
factors in MCL 722.23 and state its findings of fact and conclusions of law
on the record. See Brown v Loveman, 260 Mich App 576 (2004). In order
to expedite resolution of this matter, we direct the family court to
conclude its remand proceedings and issue its ruling within 42 days of the
date of this order. We do not retain jurisdiction. Court of Appeals No.
281617.

Leave to Appeal Denied August 7, 2008:

CITY OF ECORSE V ECORSE BROWNFIELD REDEVELOPMENT AUTHORITY, No.

136971; Court of Appeals No. 286386.

Leave to Appeal Denied August 8, 2008:

In re MOMANY (DEPARTMENT OF HUMAN SERVICES V SCHULTZ), No. 136978;
Court of Appeals No. 283561.

Appeals Dismissed August 8, 2008:

AUTO CLUB GROUP INSURANCE COMPANY V BRALEY, No. 136175. 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. 279537.
WALLACE V DEPARTMENT OF STATE POLICE, No. 136393; Court of Appeals
No. 282897.

Leave to Appeal Denied August 26, 2008:

PEOPLE V PETERSMARCK, No. 137029; Court of Appeals No. 286301.

In re MCBRIDE (DEPARTMENT OF HUMAN SERVICES V MCBRIDE), No. 137064;
Court of Appeals No. 282243.
GRIEVANCE ADMINISTRATOR V HAMOOD, No. 137108; ADB No. 05-000026-
GA.

Orders Granting Oral Argument in Cases Pending on Application for

Leave to Appeal August 28, 2008:
CITIZENS PROTECTING MICHIGAN’S CONSTITUTION V SECRETARY OF STATE, No.
137136. We direct that oral argument be heard on the application on
Wednesday, September 3, 2008, at 9:30 a.m. MCR 7.302(G)(1). The
motion for recusal is addressed in the joint statement of Justice YOUNG
and Justice MARKMAN set forth below. Court of Appeals No. 286734.
CAVANAGH, J. Preliminarily, I note that under MCR 2.003(A) a judge
may, sua sponte, raise issues regarding his qualification to hear a case.
950 482 MICHIGAN REPORTS
Taking that opportunity, I note that my participation in this case would
be prohibited under MCR 2.003(B)(5) because I have a “more than de
minimis interest” in its outcome. However, I will participate because the
rule of necessity applies to this unique case, and that rule provides an
exception to the disqualification grounds based on due-process concerns
and encompassed in MCR 2.003. See United States v Will, 449 US 200
(1980).
Secondarily, I do not opine on the disqualification or qualification of
any other justice. This is because this Court’s traditional disqualification
procedure leaves such a determination solely to the challenged justice. I
continue to find this procedure wanting on due-process grounds, and I
have offered an alternative to the unworkable status quo.* This case is
yet another example showing the need to revise our current procedure,
whether it be the adoption of my proposal in Adair v Michigan, 474 Mich
1027, 1043 (2006), or some other proposal. Nonetheless, bound by our
current procedure, I remain mute on the propriety of my fellow justices’
participation in this case.
WEAVER, J. Even though I have “more than de minimis interest”+ in
the outcome of this case, I decline to recuse myself because the common-
law rule of necessity applies in this unique case.
All Michigan judges, active and retired, who under Const 1963, art 6,
§ 23, are normally eligible for assignment to cases in which a disqualifi-
cation issue arises, would also be disqualified in this unique case because
the outcome of the case affects their “more than de minimis interest[s]”
as well. Under these unique circumstances, the common-law rule of
necessity requires that I sit in the case because of the duty to provide a
forum in which the case may be heard. United States v Will, 449 US 200
(1980).
KELLY, J. I acknowledge that, pursuant to MCR 2.003(B)(5), I have an
economic interest and other interests that are more than de minimis in
the outcome of this matter. Nonetheless, I will participate under the rule
of necessity. See United States v Will, 449 US 200 (1980).
The decisions of the other justices to participate are solely their own,
based on this Court’s traditional disqualification procedure. I object to
this procedure and again call for the Court to revise it. See Adair v
Michigan, 474 Mich 1027, 1051 (2006) (statement by KELLY, J.).
YOUNG and MARKMAN, JJ. After having carefully considered the Reform
Michigan Government Now! (RMGN) motion to disqualify us, we deny
this motion and conclude that we are required to participate for the
following reasons:
(1) It is claimed that each of us has a disqualifying interest. Under
ordinary circumstances, we would certainly not participate in this case
because we do have a direct and disqualifying interest in its outcome. If
the proposed initiative is adopted this year, our terms of office will be
prematurely ended on December 20 of this year. Such an interest

*
Adair v Michigan, 474 Mich 1027, 1043-1044 (2006) (statement by
CAVANAGH, J.).
+
MCR 2.003(B)(5).
 ACTIONS ON APPLICATIONS 951
squarely falls within MCR 2.003(B)(5), which provides in part that a
judge is disqualified when he or she “has an economic interest in the
subject matter in controversy . . . or has any other more than de minimis
interest that could be substantially affected by the proceedings.”1
(2) RMGN has not asserted, nor do we believe there is any basis for a
claim, that we harbor any “actual bias” for or against any party. Cain v
Dep’t of Corrections, 451 Mich 470 (1996). Judges in Michigan are
granted “every presumption of fairness and integrity, and heavy indeed is
the burden assumed in this Court by the litigant who would impeach the
presumption so amply justified through the years.” Mahlen Land Corp v
Kurtz, 355 Mich 340, 351 (1959).
(3) Although the motion to disqualify is directed only at us, the
proposed initiative adversely affects the financial interests of all judges in
this state because, among other things, it would reduce the salary of
every judge by 15 percent and decrease his or her retirement benefits.
Consequently, each of our colleagues on this Court has an independent
ethical obligation to determine whether he or she can participate. See
Code of Judicial Conduct, Canon 3(C); MCR 2.003(A).
Thus, the dispositive question in this case is not merely the propriety
of our own participation, but whether any justice of this Court can
participate. For if they are all also precluded from participation by MCR
2.003, there would be no quorum of this Court able to decide this matter.
Under such circumstances, pursuant to the “Rule of Necessity,” every
justice would have a legal obligation to participate in order that judicial
review is not precluded altogether.2
(4) The “Rule of Necessity” is the ancient common-law principle that

“although a judge had better not, if it can be avoided, take part in

the decision of a case in which he has any personal interest, yet he
not only may but must do so if the case cannot be heard otherwise.”
[United States v Will, 449 US 200, 213 (1980), quoting Pollack, A
First Book of Jurisprudence 270 (6th ed 1929).][3]

1
Although a justice of this Court is not bound by the procedural
standards set forth in MCR 2.003, Fieger v Cox, 480 Mich 874, 875 (2007),
the substantive standards in this provision are applicable. See Adair v
Michigan, 474 Mich 1027, 1032-1038 (2006) (statement by TAYLOR, C.J.,
and MARKMAN, J.). See id. at 1051, 1053 (concurrence of CORRIGAN and
YOUNG, JJ.).
2
If a quorum of the Michigan Supreme Court cannot be formed to
consider a matter, it has no authority to act. See Jagger v Coon, 5 Mich
31 (1858) (there is no authority for the Supreme Court to render
judgment when there is no quorum). See also MCL 600.211(3) (a majority
of justices shall constitute a quorum for transacting business).
3
The “Rule of Necessity” is distinct from the “Duty to Sit” doctrine,
under which “there is an obligation to remain on any case absent good
grounds for recusal,” especially in a court of last resort, such as the
952 482 MICHIGAN REPORTS
In Evans v Gore, 253 US 245, 247-248 (1920), the United States
Supreme Court held that the members of that court could not decline to
decide whether the compensation of federal judges was subject to the
power to tax because there was no other appellate tribunal to which the
plaintiff judge could go. In Will, supra at 215-216, a case involving
compensation for all federal judges, the Court similarly held that, where
all members of the Court would ordinarily have been required to recuse
themselves for having a direct interest in the case, none of the members
was disqualified because otherwise the case could not have been heard at
all. The Court recognized that “[t]he Rule of Necessity has been consis-
tently applied in this country in both state and federal courts.” Id. at
214. See, e.g., Bliss v Caille Bros, 149 Mich 601 (1907).
(5) Among the universe of potential cases or controversies coming
before this or any other supreme court, it cannot be that only those
pertaining to judges and the judiciary alone are immune from judicial
review. The present dispute concerns whether the proposed initiative has
complied with the procedures of the Michigan Constitution. As with any
other proposed changes in the constitution, such compliance is required
and is subject to judicial review. The “ ‘overarching right of the people’ is
to have the constitution that they have ratified given respect and
accorded its proper meaning.” Michigan United Conservation Clubs v
Secretary of State (After Remand), 464 Mich 359, 393 (2001) (MARKMAN, J.,
concurring).
(6) The “Rule of Necessity” is properly invoked in this case
because, under ordinary circumstances, each of our colleagues would
clearly be precluded by MCR 2.003(B)(5) from participation in this
case. To our knowledge, none of our colleagues, or even RMGN, has
disputed this point. Each of our colleagues is directly interested in this
case because, as in Evans and Will, each has an obvious and substan-
tial economic interest in the subject matter of the controversy. As
stated, the five justices who will remain on this Court if the proposed
initiative is adopted will incur a 15 percent decrease in annual salary
($24,691) for the remainder of their judicial service. Given the
remaining number of years these justices may continue to serve, the
overall diminution in salary will range from an estimated $99,000 to
$346,000. At a compounded interest rate of four percent, this amount
would range from $109,000 to $470,000 during their potential remain-
ing years of service on this Court.4 In addition, for those justices who
participate in the defined-benefit retirement plan, their benefits will be
based upon a percentage of their final annual salary, i.e., upon the
reduced salary implemented by the proposed initiative. For those justices
who participate in the defined-contribution retirement plan, their ben-

supreme court of a jurisdiction, where there are no substitute judges to

take the place of those who are recused. Adair, supra at 1040-1041
(statement by TAYLOR, C.J., and MARKMAN, J.), citing Laird v Tatum, 409
US 824, 837 (1972).
4
The 30-year bond rate as of August 26, 2008, is 4.41% and the 10-year
rate is 3.80%.
 ACTIONS ON APPLICATIONS 953
efits will reflect a diminished employer contribution based upon the
reduced judicial salary. Applying the 2004 Social Security actuarial
tables, the overall reduction in retirement benefits among our five
colleagues would range from $7,000 to $149,000; taking into consider-
ation a compounded interest rate of four percent for the periods of life
expectancy, these amounts would range from $8,000 to $185,000. Thus,
the total salary and retirement benefit losses incurred by our colleagues
would range from $106,000 to $494,000; with interest considered, these
amounts would range from $117,000 to $655,000.5 To say the least, this
constitutes an “economic interest” in the proposed initiative under MCR
2.003(B)(5).6
(7) That the “economic interest” of each of the seven justices in the
proposed initiative might vary in its particulars is not relevant under the
“Rule of Necessity.” If a judge has “an economic interest,” or “more than
a de minimis interest,” that would be adversely affected, disqualification
is triggered under MCR 2.003(B)(5). There is no caselaw that distin-
guishes between greater or lesser economic interests, and no hierarchy of
disqualifying interests. Rather, what is determinative is simply whether
a judge under ordinary circumstances would be subject to recusal under
MCR 2.003(B)(5); there are either grounds for recusal or there are not.
Once again, we are unaware of any justice of this Court who has asserted
that he or she would not be subject to recusal in this appeal by virtue of
how the proposed initiative would affect his or her financial circum-
stances if it is approved.7

5
None of these calculations, of course, take into consideration that
some justices may, although not compelled to do so, nonetheless retire
from this Court in order to avoid a loss in retirement benefits.
6
It goes without saying that although neither of us will be receiving a
judicial salary if the proposed initiative is ratified, we will also no longer
be performing judicial duties in return, and will presumably be receiving
compensation in some other position.
7
We believe that RMGN misapprehends the United States Supreme
Court’s holding in Aetna Life Ins Co v Lavoie, 475 US 813 (1986). In
Aetna, the Supreme Court held that, although one justice of the Alabama
Supreme Court was disqualified, the remaining eight justices were not.
Id. at 826-827. Thus, Aetna has no application here, where plainly all
seven justices of this Court would be disqualified. It is noteworthy that
the Supreme Court additionally engaged in the following hypothetical:
“[A]ccepting appellant’s expansive contentions might require the dis-
qualification of every judge in the State. If so, it is possible that under a
‘rule of necessity’ none of the judges or justices would be disqualified.”
Id. at 826, citing Will, supra at 214. Thus, the Supreme Court suggested
that, if the “Rule of Necessity” applied, none of the justices would be
disqualified under this rule, including the justice previously determined
to be disqualified and who would have had a “greater” interest. Nothing
in Aetna supports RMGN’s proposition that a court applying the “Rule of
954 482 MICHIGAN REPORTS
(8) The Michigan Supreme Court is this state’s highest court and
alone is capable of conclusively deciding whether the proposed initiative
complies with our constitution. There is clearly no alternative forum to
resolve the state constitutional issues being raised in the instant case.
There are no procedures for replacing justices of this court who must
recuse themselves from a case, and there is no federal jurisdiction in
interpreting the constitution of this state.
(9) A due process violation occurs where a person’s liberty or
property is subjected to “ ‘the judgment of a court, the judge of which
has a direct, personal, substantial, pecuniary interest in reaching a
conclusion against him.’ ” Aetna Life Ins Co v Lavoie, 475 US 813, 822

Necessity” must take into account variations in judges’ economic inter-

ests. Rather, it stands for the entirely uncontroversial proposition that,
when one judge is disqualified but a sufficient number who are not
disqualified can participate, the case should proceed without the partici-
pation of the disqualified judge.
In addition, DuPlantier v United States, 606 F2d 654 (CA 5, 1979),
upon which RMGN also relies, actually supports the proposition that it is
improper to distinguish among disqualified judges. In that case, the
plaintiffs challenged a requirement that all federal judges file personal
financial statements, which failure could result in a penalty up to
$5,000. The court applied the “Rule of Necessity” because all federal
judges had an interest in the outcome and refused to distinguish between
judges who had filed their personal financial statements and those who
had not. Id. at 662-663.
Finally, Wheeler v Bd of Trustees of Fargo Consolidated School Dist,
200 Ga 323 (1946), upon which RMGN also relies, supports the
proposition that it is improper to distinguish among disqualified
judges. In Wheeler, all the justices had a disqualifying interest because
the new constitution that was being challenged raised each of their
salaries. Relying on the “Rule of Necessity,” six of the justices did not
disqualify themselves, including one of the justices who asserted a
“greater” disqualifying interest as he had been the state’s attorney
general and had offered “legal opinions concerning the instrument
now under attack.” Id. at 329. Indeed, the court held that the “Rule of
Necessity” applied to this justice “with the same force and effect” as
it applied to the other justices who were not disqualifying themselves.
Id. With regard to a seventh justice who did disqualify himself, he did
so only because the new constitution that was being challenged created
his very position on the court. Therefore, he only had the authority to
sit as a justice if the challenge to the new constitution failed. As the
court explained, “Should he participate in this case, his very act in
doing so would presuppose the validity of the instrument under
attack.” Id. at 328. In contrast, all of the justices of this Court clearly
hold a valid position on this Court.
 ACTIONS ON APPLICATIONS 955
(1986), quoting Tumey v Ohio, 273 US 510, 523 (1927). “A fair trial in
a fair tribunal is a basic requirement of due process.” In re Murchison,
349 US 133, 136 (1955). However, “most matters relating to judicial
disqualification [do] not rise to a constitutional level.” Fed Trade
Comm v Cement Institute, 333 US 683, 702 (1948). “The Due Process
Clause demarks only the outer boundaries of judicial disqualifica-
tions.” Aetna, supra at 828.
The due process requirement against a judge having a “direct,
personal, substantial, pecuniary interest” in a case is encompassed in the
more stringent MCR 2.003(B)(5). Therefore, if a judge is not disqualified
under MCR 2.003(B)(5), the constitutional due process requirement has
presumably been met. In this case, each of the justices is presumptively
disqualified under MCR 2.003(B)(5), and, therefore, RMGN’s due process
rights arguably cannot be protected. However, to altogether deprive a
party, as in this case, of any tribunal to hear a case or controversy is an
even greater denial of due process.8 As the United States Court of Claims
has stated:
We regret that it falls our lot to decide these cases, and we
would much prefer that a resolution of the controversy not be
our responsibility. Nevertheless, we realize that the plaintiffs
are entitled to have their cases heard and decided by a court of
the United States, and under the law there is no other court to
which they could go. Should we refuse to hear and decide their
cases, the doors of the courts would be closed to them. This
could amount to a denial of due process under the 14th
amendment to the Constitution. [Atkins v United States, 214 Ct
Cl 186, 207 (1977).]

Accordingly, the requirements of due process must normally yield to

the “Rule of Necessity”—a doctrine itself predicated on due process
requirements—and the members of this Court must decide this case.
That is, because all of the justices on this Court have an economic
interest in the outcome of this case, all are disqualified; however, because
this would deprive the parties of a forum in which to litigate, none of the
justices can be disqualified.
(10) For these reasons, we are not only exempted from recusal in this
case, but we are obligated to participate. Will, supra at 213. Therefore,
we deny the motion to disqualify.

8
As RMGN itself recognizes, “[t]he rule of necessity is a[n] . . . ex-
ception to the Due Process requirement of an impartial decision
maker” as it is only applicable where it is necessary to “satisfy a
litigant’s Due Process right to have his case heard.” Brief of RMGN at
9. Indeed, the “Rule of Necessity” necessarily must constitute an
exception to ordinary guarantees of due process because, by definition,
it expressly allows judges who would ordinarily be viewed as “inter-
ested” to hear a case.
956 482 MICHIGAN REPORTS

Summary Dispositions September 4, 2008:

MARTIN V SECRETARY OF STATE, No. 137173. Pursuant to MCR

7.302(G)(1), in lieu of granting leave to appeal, we reverse the
judgments of the Court of Appeals and the Ingham Circuit Court for
the reasons stated in the Court of Appeals dissenting opinion, but only
as to the issues of candidate standing and the trial court’s application
of equity. A candidate for elective office suffers a cognizable injury in
fact if, due to the improper interpretation and enforcement of election
law, he or she is prevented from being placed on the ballot or must
compete against someone improperly placed on the ballot. We rein-
state the decision of the Secretary of State to remove plaintiff
Christopher P. Martin’s name from the ballot. In all other respects,
leave to appeal is denied, because we are not persuaded that the
remaining questions presented should be reviewed by this Court. We
do not retain jurisdiction. Reported below: 280 Mich App 417.
YOUNG, J. (concurring). I concur in the decision to reverse but write to
express my own dismay at the tone and conclusion reached by Justice
KELLY. She condemns as “manifestly unjust” the result reached by the
majority. She does so based entirely on her understandable sympathy
with the plaintiff, who was obviously misled by the Secretary of State’s
office. Justice KELLY does not explain how the Secretary of State has the
power to alter the unambiguous statutory deadline, nor does she address
the authority of the courts to revise such a statute.1
Contrary to her position today, not long ago, Justice KELLY, writing for
the Court in Stokes v Millen Roofing Co,2 held:

1
Justice KELLY offers a disingenuous interpretation of MCL 168.413
in order to justify ignoring that the Legislature created candidate
nominating petition deadlines. She suggests that MCL 168.413 confers
discretionary authority on the Secretary of State to accept nominating
petitions after 4:00 p.m. on the fourteenth Tuesday preceding the
primary. This is erroneous and plainly contradicted by the statutory
text. The statute unambiguously sets a deadline. Indeed, to read it as
she suggests puts it in conflict with MCL 168.415, which does provide
an extension to what it calls “the deadline for filing nominating
petitions under section 413” when the death or other disqualification
of a judicial candidate causes there to be fewer candidates than
positions. MCL 168.415(2) (emphasis added).
Although Justice KELLY is right that this case presents an “extreme
circumstance,” there is no statutory authority to extend the unam-
biguous deadline beyond which the Secretary of State cannot accept
petitions.
2
Stokes v Millen Roofing Co, 466 Mich 660, 671-672 (2002) (citations
omitted).
 ACTIONS ON APPLICATIONS 957
In its bench ruling granting equitable relief to Millen, the trial
court stated that a court in equity may provide for nonlegal,
equitable remedies to avoid unduly harsh legal doctrines. Its
analysis is invalid because, in this case, equity is invoked to avoid
application of a statute. Courts must be careful not to usurp the
[l]egislative role under the guise of equity because a statutory
penalty is expressly punitive. As the Court of Appeals stated:
“Regardless of how unjust the statutory penalty might seem to
this Court, it is not our place to create an equitable remedy for a
hardship created by an unambiguous, validly enacted, legislative
decree.”

I agree with Justice KELLY’s statement of legal principles in Stokes. Now,

in this case, it appears that Justice KELLY has abandoned her Stokes
opinion and the very principles she propounded there.
It appears that Justice KELLY’s adherence to precedent is “flexible,”
such that she is willing to ignore even her own decisions when she finds
them inconvenient. I am, as is the majority, prepared to follow Stokes—
even if its author abandons it.
TAYLOR, C.J., and CORRIGAN and MARKMAN, JJ. We join the statement of
Justice YOUNG.
MARKMAN, J. (concurring). With all respect to Justice KELLY, it is not
“manifestly unjust” for this Court to conclude that the plain words of a
law enacted by the Legislature cannot be modified by a clerk in the
Secretary of State’s office (or indeed by the Secretary of State herself). In
this case, the law requires that a candidate seeking to run for a judgeship
in the 23rd Judicial Circuit obtain 200 to 400 petition signatures. MCL
168.544f.1 By the filing deadline, plaintiff, acting upon the guidance of the
Secretary of State’s office, had obtained only 158 signatures. Although it
is unfortunate that plaintiff received incorrect guidance, such guidance
cannot alter the law of this state. Thus, the trial court erred in affording
plaintiff an opportunity beyond the filing deadline to obtain additional
signatures. There cannot be as many laws as there are public servants
who dispense guidance or advice on the meaning of the law. Rather, such
guidance or advice must always be understood as subordinate to the law
actually enacted by the elected representatives of the people.
TAYLOR, C.J., and CORRIGAN and YOUNG, JJ. We join the statement of
Justice MARKMAN.
CAVANAGH, J. (concurring in part and dissenting in part). I concur with
the order in that the proposed intervenors do have standing; therefore, I
would vacate the Court of Appeals judgment and reverse the trial court
in that respect.

1
Contrary to Justice KELLY, I do not believe that the statute fails to
notify candidates of its signature requirements because it requires a
candidate to apprise himself of the population of the district he intends to
serve.
958 482 MICHIGAN REPORTS
However, I disagree with the adoption of the Court of Appeals dissent
regarding the remedy plaintiff deserved.* Instead, I would affirm the
remedy granted by the trial court—an injunction mandating that plain-
tiff be given additional time to present the requisite valid signatures and
be put on the ballot if he presents them. This is because the state
defendants repeatedly informed plaintiff of the incorrect number of
signatures required, while concomitantly warning plaintiff that it was
unlawful to file more than the correct number. Therefore, the trial court
granted the appropriate equitable relief.
It would simply be unfair to punish plaintiff for an error that he did
not commit and with which he was forced to comply.
WEAVER, J. I join the statement of Justice CAVANAGH.
KELLY, J. (dissenting). I believe that the result reached by the majority
of the Court in this case is manifestly unjust. The name of plaintiff-
appellee, Christopher Martin, will not appear on the ballot in the
November election for judge of the circuit court for Alcona, Arenac, Iosco,
and Oscoda counties. The reason is that Martin submitted too few
signatures to qualify as a candidate.
The undisputed reason Martin submitted too few signatures is that,
before the due date, the Secretary of State mistakenly informed him, both
verbally and in writing, about the number needed. The Secretary of State
informed Martin that he needed to submit 100 to 200 petition signatures.
More would subject him to a misdemeanor penalty. But after he had
submitted 158 signatures and the deadline had expired, Martin learned
that 200 to 400 signatures were needed. He immediately attempted to
submit 208 additional signatures. The Secretary of State rejected the
submission and removed Martin’s name from the ballot.
Martin brought a suit seeking equitable relief. The circuit court
granted his request, ordering the Secretary of State to extend the filing
deadline and, if the additional signatures were found to be valid, to place
Martin’s name on the ballot. The Court of Appeals affirmed the decision.1
But this Court has reversed the lower courts’ result and removed Martin
from the ballot. It does so because it refuses to allow equity to be applied
in this election-law case for fear of creating a dangerous precedent.
For years, candidates for office in this state have relied on the advice
of the Secretary of State, particularly the director of elections, when
attempting to decipher obtuse statutes. That is what Martin did here.
But, as a result of today’s unnecessarily rigid decision, Martin will be
removed from the ballot. Moreover, future candidates will hesitate to rely
on the interpretative advice of the Secretary of State in such matters.
I believe that equity should have been applied here to uphold the
result reached by the lower courts. Martin has been wronged by a
mistake on the part of the Secretary of State. Our appellate opinion could
and should right that wrong. If narrowly drawn, it could avoid a

*
Although this action includes several plaintiffs, I refer singularly to
plaintiff Christopher P. Martin because he is the judicial candidate whose
name will, or will not, be on the ballot as a result of this case.
1
Martin v Secretary of State, 280 Mich App 417 (2008).
 ACTIONS ON APPLICATIONS 959
dangerous precedent, all the while treating Martin justly and continuing
state assistance to candidates for office at the current level.
Justice YOUNG claims that I ignore and abandon my decision in Stokes
v Millen Roofing Co.2 This claim is both misleading and incorrect. In
Stokes, I wrote to overrule a Court of Appeals decision that allowed an
unlicensed contractor to use equity as leverage to force payment from a
homeowner. I reasoned that, if the Court of Appeals opinion had been
allowed to stand,

any unlicensed contractor could defy the residential builders act

and the Construction Lien Act by refusing to obtain a Michigan
residential builder’s license. It could contract with a residential
home owner to perform work on the owner’s home. Then, if a
dispute arose over money due, it could cloud the title with a lien
and wait until the owner brought suit to clear title. It could then
recover the amount due in an equity judgment.[3]

Hence, Stokes involved the misuse of equity by a contractor to defy the

licensing statute. That is quite a different matter than the use of equity
by the courts to properly apply a statute and protect a person from the
harm caused by a government agency’s blunder.
No statute prohibits a court from requiring the Secretary of State to
accept the additional signatures, as the trial court required in this case.
MCL 168.413 mandates that the Secretary of State, who is charged with
the oversight of elections, receive nominating petitions up to 4:00 p.m. of
the fourteenth Tuesday preceding the primary. Without question, then,
the Secretary of State must receive nominating petitions up to that time.
However, the Secretary of State may accept nominating petitions after
4:00 p.m. on the relevant date. That is exactly what the trial court
ordered it to do as a consequence of its mistake.
In interpreting a statute, courts presume that the Legislature enacted
it having in mind previously enacted statutes relating to the same subject
matter.4 Accordingly, all such statutes should be construed together to
produce a harmonious result.5 Applying this maxim here, although MCL
168.544f required 200 to 400 signatures once the counties’ population
was determined, MCL 168.413 allowed the Secretary of State to accept
nominating petitions after the deadline for filing signatures. Therefore,
the trial court’s equitable remedy that ordered the Secretary of State to
accept the additional signatures was within the bounds of MCL 168.544f
and MCL 168.413 read together.
This case presents an extreme circumstance. Martin reasonably relied
on, and placed confidence to his detriment in, the Secretary of State’s

2
Stokes v Miller Roofing Co, 466 Mich 660 (2002).
3
Id. at 672-673.
4
Palmer v State Land Office Bd, 304 Mich 628, 636-637 (1943).
5
Rathbun v Michigan, 284 Mich 521, 544 (1938).
960 482 MICHIGAN REPORTS
advice.6 If the majority of this Court believes that equity is not applicable
here, I question when it would apply equity at all.
The decision of the Court of Appeals should be affirmed.

Leave to Appeal Denied September 4, 2008:

MAYOR OF DETROIT V GOVERNOR, No. 137197; Court of Appeals No.

287462.

Leave to Appeal Denied September 8, 2008:

CITIZENS PROTECTING MICHIGAN’S CONSTITUTION V SECRETARY OF STATE, No.

137136. We affirm the result only of the August 20, 2008, judgment of the
Court of Appeals. MCR 7.302(G)(1). In all other respects, leave to appeal
is denied, because we are not persuaded that the remaining question
presented should be reviewed by this Court. Reported below: 280 Mich
App 273.
TAYLOR, C.J., and CORRIGAN, J. (concurring). We concur with the Court
of Appeals judges and other justices of this Court that the doctrine of
necessity applies and that, pursuant to it, we are required to participate
in this case.
CAVANAGH, WEAVER, and MARKMAN, JJ. (concurring). We concur in this
Court’s order affirming only the result reached in the August 20, 2008,
judgment of the Court of Appeals for the following reason. Const 1963,
art 12, § 2, provides with regard to constitutional amendments proposed
under this section that “[t]he ballot to be used in such election shall
contain a [true and impartial] statement of the purpose of the proposed
amendment, expressed in not more than 100 words, exclusive of caption.”
This language establishes a clear limitation on the scope of constitutional
amendments under § 2. Specifically, this statement of purpose must
consist of a “true and impartial” statement that sufficiently, fairly,
reasonably and understandably communicates to the people of this state
the purpose of the amendment in “not more than 100 words.” Such an
interpretation of this provision is in accordance with the “ ‘common
understanding’ ” of the “ ‘great mass of the people.’ ” Traverse City
School Dist v Attorney General, 384 Mich 390, 405 (1971), quoting
Cooley’s Constitutional Limitations 81 (1868).1 The instant proposal

6
It is not correct, as Justice MARKMAN infers, that MCL 168.544f would
have notified Martin how many signatures he needed. To determine the
correct number, Martin would have had to determine the total population
of the combined counties in the 23rd Judicial Circuit. In effect, he relied
on the Secretary of State for that information.
1
“A constitution is made for the people and by the people. The
interpretation that should be given it is that which reasonable minds, the
great mass of the people themselves, would give it. For as the Constitu-
tion does not derive its force from the convention which framed, but from
 ACTIONS ON APPLICATIONS 961
would alter or affect some 19,000 words of the Michigan Constitution,
and would alter or affect some 28 sections of this constitution, including
four separate articles, thus affecting each of the branches of state
government. Because of the exigencies of the present election schedule,
and because a proposal of this extraordinary scope and multitude of
unrelated provisions clearly cannot be reasonably communicated to the
people in “not more than 100 words,” we agree with the Court of Appeals
that this proposal cannot be placed on the ballot without violating our
constitution.2
WEAVER, J. (concurring). I agree with this Court’s order finding that
the Reform Michigan Government Now! proposed amendment is not
qualified to be placed on the November 4, 2008, ballot for the reasons
stated in my joint concurring statement with Justices CAVANAGH and
MARKMAN. That statement is a restrained and disciplined interpretation of
our Michigan Constitution. The statement applies the longstanding
Michigan law, so wisely and well stated by Justice COOLEY in Constitu-
tional Limitations 81 (1868) and quoted in Traverse City School Dist v
Attorney Gen, 384 Mich 390, 405 (1971), that our constitution is inter-
preted in light of the common understanding of the ratifiers—the people
of Michigan.
Common sense shows that the drafters and ratifiers of our Michigan
Constitution required a purpose statement of “not more than 100 words”
to be printed on the ballot so that voters would have sufficient, under-
standable, impartial, and true information on the ballot. This allows the
voters to make an informed decision on the proposed constitutional
amendment by reading the “not more than 100 words” purpose state-
ment printed right on the ballot, without having to read the amendment
itself and/or the proposal petition itself, which would likely contain many
more than 100 words.

the people who ratified it, the intent to be arrived at is that of the people,
and it is not to be supposed that they have looked for any dark or abstruse
meaning in the words employed, but rather that they have accepted them
in the sense most obvious to the common understanding, and ratified the
instrument in the belief that that was the sense designed to be conveyed.”
Traverse City School Dist, supra at 405, quoting Cooley’s Constitutional
Limitations, supra at 81 (emphasis and quotation marks omitted).
2
While Justice KELLY is correct that, under normal circumstances, this
case should have been remanded to the Board of State Canvassers,
having now heard oral arguments, and given the certainty that any
decision of the board would have been immediately appealed back to this
Court, we believe that it would be futile to remand at this late juncture.
Whether the effective deadline for a ballot decision is this past Friday, as
asserted by the director of elections, or some later date, it is clear that an
urgent decision from this Court is required under emergency circum-
stances.
962 482 MICHIGAN REPORTS
The Court of Appeals order finding that the RMGN proposed amend-
ment is not qualified to be placed on the ballot reached the correct result,
but for the wrong reasons. The Court of Appeals wrongly prohibited the
Board of State Canvassers from doing its duty to decide whether or not to
place the RMGN proposal on the November 4, 2008, ballot. The board
was scheduled to make that decision the day after the Court of Appeals
order was issued.
The Court of Appeals opinion failed to consider and apply the “not more
than 100 words” purpose statement requirement for qualification to be
placed on the ballot for voter-initiated amendments by petition to our
Michigan Constitution found right in § 2 of art 12. Instead, the Court of
Appeals reached out to rules created by the California Supreme Court and
wrote into our Michigan Constitution words, phrases, and concepts such as:
“qualitative,” “quantitative,” “two-prong test,” “threshold determination,”
“foundation powers,” all of which are not anywhere contained in Michigan’s
Constitution. Further, the Court of Appeals, in a kind of circular
analysis—in reliance on California Supreme Court law, and then supported
by California Supreme Court law—wrongly incorporated by interpretation
into the Michigan Constitution these words, phrases, and concepts.
The Court of Appeals opinion is an example of judicial activism—of
the unrestrained, mistaken use of the power of interpretation. Such
California law interpreted directly into our Michigan Constitution, or
circularly relied on for support, seems harmless in this case because it
reaches the correct result, but it is harmful and dangerous for the future.
It wrongly creates a “judicial veto” over future voter-initiated proposed
amendments by petition even if such a proposed amendment were a one
(1)-issue, single-purpose amendment whose “not more than 100 words”
purpose statement for printing on the ballot would easily be sufficient,
understandable, impartial, and true.
For example, Raven v Deukmejian, 52 Cal 3d 336 (1990), cited by the
Court of Appeals, and approvingly cited by amicus Michigan Attorney
General, is an example of a one (1)-issue, single-purpose, simply stated
amendment proposal judicially vetoed from placement on the ballot by
the California Supreme Court using the “foundation powers” concept.
Further, I note that Justice CORRIGAN’s concurring statement, signed by
Chief Justice TAYLOR and Justice YOUNG, does not challenge the Court of
Appeals opinion’s distinction between “amendment” and “general revision.”
And it only questions the Court of Appeals direct interpretation into
Michigan’s Constitution judicially created California Supreme Court consti-
tutional law, despite the fact that California’s law results in a “judicial veto”
of the people of Michigan’s right to voter-initiated amendment of the
Michigan Constitution by giving definitions to the words “amendment” and
“revision” not contained in our Michigan Constitution.
Finally, as to the issue of disqualification of justices, I concur in this
Court’s denial of leave to appeal from the Court of Appeals August 13,
2008, order denying the motion for recusal (disqualification).1

1
On August 13, 2008, the Court of Appeals denied intervening defen-
dant Reform Michigan Government Now!’s motion for recusal (disquali-
 ACTIONS ON APPLICATIONS 963
As I stated in my recusal statement attached to the August 28, 2008,
order granting the application for leave to appeal in this case, “[e]ven
though I have ‘more than de minimis interest’ [MCR 2.003(B)(5)] in the
outcome of this case, I decline to recuse myself because the common-law
rule of necessity doctrine applies in this unique case.”
Five of the seven justices of this Court, before participating in
decisions and oral argument in this case, properly filed statements
regarding their “more than de minimis interest[s]” in this unique case in
accordance with Canon 3 of the Code of Judicial Conduct.2 Only Chief
Justice TAYLOR and Justice CORRIGAN failed to state their obvious “more
than de minimis interest[s]” in this case. Although today, September 8,
2008, Chief Justice TAYLOR and Justice CORRIGAN filed a joint statement
concurring with the other justices that the doctrine of necessity required
that they participate, neither Chief Justice TAYLOR nor Justice CORRIGAN
disclosed that they have “more than de minimis interest[s]” in this case.
Thus, I agree with and support Justice CAVANAGH’s statement of August
28, 2008, in this case that this Court needs written, clear rules regarding
the disqualification of justices.
This 2008 RMGN case again highlights the need for this Court to have
written, clear rules regarding the disqualification of 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 justices. See, e.g., statement or opinion
by WEAVER, 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 (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 (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, 477 Mich 1044
(2007); Neal v Dep’t of Corrections, 477 Mich 1049 (2007); State Auto
Mutual Ins v Fieger, 477 Mich 1068, 1070 (2007); Ansari v Gold, 477
Mich 1076, 1077 (2007); Short v Antonini, 729 NW2d 218 (2007);

fication). Subsequently, RMGN filed an appeal with this Court on the

recusal issue, along with its appeal on the merits.
2
Canon 3 in pertinent part is set forth below:

CANON 3. A Judge Should Perform the Duties of Office

Impartially and Diligently

***

C. Disqualification. A judge should raise the issue of dis-

qualification whenever the judge has cause to believe that grounds
for disqualification may exist under MCR 2.003(B).
964 482 MICHIGAN REPORTS
Flemister v Traveling Med Svcs, 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 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).
Also see my personally funded website—http://www.justiceweaver.com.
CORRIGAN, J. (concurring). I join the Court’s order affirming the result
of the Court of Appeals judgment. On the basis of my review, which was
limited by time constraints, I do not see a clear error in the Court of
Appeals articulation of the distinction between an “amendment” and a
“general revision” of the Michigan Constitution, its explanation of the
separate methods for enacting each, or its conclusion that the proposal
here is a “general revision.” Although I respectfully question the impor-
tation of caselaw from California and other foreign jurisdictions, I believe
that the Michigan authorities cited in the Court of Appeals opinion fully
support its rationale and decision.
TAYLOR, C.J., and YOUNG, J. We join the statement of Justice CORRIGAN.
KELLY, J. (dissenting). I would not affirm the Court of Appeals
decision. Instead, after oral argument and deliberation on September 3,
I would have granted leave to appeal and, retaining jurisdiction, would
have remanded the matter to the Board of State Canvassers.
Within the statutory time constraints,1 the Court should have in-
structed the Board of State Canvassers to submit to the Court its
proposed 100-word statement of purpose for the ballot initiative. The
Court should then have reviewed the proposal to determine whether it
provided a true and impartial statement of the purpose of the initiative.
If the language were adequate, it should have put the initiative on the
ballot. If inadequate, it should have ordered the initiative off the ballot.
I agree with the statement of Justices CAVANAGH, WEAVER, and MARKMAN
that our state constitution at article 12, section 2, “establishes a clear, albeit
indirect, limitation on the scope” of constitutional ballot initiatives. I believe
that the limitation is in the requirement that the initiative be capable of

1
The parties offered differing timetables for when this litigation must
be resolved to allow for timely printing and delivery of the November
ballots. One argued that the Court must take final action by September
16, the deadline for the Secretary of State to certify the ballot. Another
submitted an affidavit of Christopher Thomas, director of elections for
the state of Michigan, stating that, from a practical standpoint, all
proposal language must be certified to the county clerks no later than
September 5. The affidavit stated that the September 5 deadline was
necessary to ensure timely printing of the ballots. But it also noted that
the Michigan Democratic Party’s convention on September 6 would delay
full certification of the ballot until September 8. The Court of Appeals
rendered its decision on August 20. An appeal was filed in this Court on
August 22. Regardless of which deadline one accepts, ample time existed
for this Court to receive input from the Board of State Canvassers and
render a decision after completing oral argument on September 3.
 ACTIONS ON APPLICATIONS 965
being communicated to the voters in not more than 100 words. I agree, also,
that any such statement of purpose must be easily understandable.
But, without having the Board of State Canvassers’ proposed lan-
guage before it, how can this Court determine that a legally acceptable
statement of purpose cannot possibly be made in 100 words? It does not
follow “as the night the day”2 from the fact that the initiative is lengthy
and complex that it cannot be summarized adequately in 100 words. I
find that Justices CAVANAGH, WEAVER, and MARKMAN prejudge this ques-
tion, and at this point I am not prepared to conclude that a legally
adequate summary is impossible.
Also, I respectfully disagree with Justice CORRIGAN’s assertion that
“the Michigan authorities cited in the Court of Appeals opinion fully
support its rationale and decision.” The Court of Appeals concluded that
the Reform Michigan Government Now! (RMGN) petition “plainly”
constitutes a “general revision” of the state constitution and therefore
does not meet the constitutional prerequisites for a ballot initiative.3
Having considered the text of the constitutional provisions at issue and
the limited authority available, I cannot agree.

THE ESSENTIAL 100-WORD STATEMENT OF PURPOSE

The following is the statement of purpose proposed for the initiative

but, because of the courts’ intervention, not yet acted on by the Board of
State Canvassers:

A proposal to amend the state constitution to alter the

legislative, executive and judicial branches of state gov-
ernment.
The proposed constitutional amendment would:
• Require no-reason absentee voting.
• Limit election officials’ support of candidates.
• Create separate Office of Elections to supervise elections.
• Create direct initiation of laws by petition.
• Reduce number of Senate and House districts.
• Establish bipartisan commission and standards for creating
legislative districts; prohibit state court review of districts.
• Prohibit former elected officials from lobbying for 2 years.
• Reduce salaries, limit retirement benefits and disclose per-
sonal finances of legislative, executive and judicial officials.
• Disclose Legislature’s financial records.

2
William Shakespeare, Hamlet, act 1, scene 3.
3
See Citizens Protecting Michigan’s Constitution v Secretary of State,
280 Mich App 273, 307, and accompanying order, 280 Mich App 801
(2008); Const 1963, art 12, §§ 2 and 3.
966 482 MICHIGAN REPORTS
• Limit state departments to 18; cap boards/commissions.
• Reduce size of Supreme Court and Appeals Court; add circuit
judges.
• Transfer discipline of judges to new commission.
Should this proposal be adopted?

It is true that certain details of the ballot initiative do not appear in

the proposed statement of purpose. But, it is the publicly stated position
of the director of elections that article 12, § 2 of the Michigan Constitu-
tion does not require that the statement of purpose include every change
the initiative would effectuate.4 The Court should make a definitive
ruling on this question.

THE AMENDMENT/REVISION DISTINCTION

In differentiating between an amendment and a revision, the Court of

Appeals rendered several conclusions that are at best weakly supported
and lack the comprehensive analysis this case requires. For example, the
Court determined that it is “not possible to ‘define with nicety the line
of demarcation’ between an ‘amendment’ and a ‘general revision.’ ”5
But the panel then determined that it is unnecessary to attempt to draw
such a line, because the RMGN petition would, in any event, clearly cross
it and constitute a revision. As noted previously, little Michigan caselaw
exists on the distinction between a constitutional amendment and a
constitutional revision. The Court of Appeals seems to be saying that,
although no clear definition is available, it knows a revision when it sees
it. I find this reasoning unconvincing.
The distinction between an amendment and a revision that was accept-
able to the Court of Appeals was that urged by the plaintiffs. But the
plaintiffs cited no constitutional language supporting the distinction. They
relied on Kelly v Laing,6 a case that involved interpretation not of a

4
<http://www.southbendtribune.com/apps/pbcs.dll/article?AID=/2-
0080904/News01/809040446/1052/News01> (accessed September 5,
2008) (“[E]lections director Chris Thomas told reporters he agreed
with Reform Michigan Government Now’s stance on the 100-word
limit . . . . He said there’s a difference between describing every part
of a measure and telling voters its purpose. ‘I can show you lots of
proposals where substantial things didn’t get included,’ Thomas said
of past ballot issues.”)
5
Citizens Protecting Michigan’s Constitution, supra at 303-304, quot-
ing McFadden v Jordan, 32 Cal 2d 330, 348 (1948).
6
Kelly v Laing, 259 Mich 212 (1932). Nowhere in the language of the
Michigan Constitution is “amendment” or “revision” defined. Two
sections address amendments and revisions, but they lay out only the
procedural formalities necessary for a proposal to be ballot-eligible. They
 ACTIONS ON APPLICATIONS 967
constitution but of a city charter. As RMGN argued before this Court,
the use of Kelly to make the distinction between a constitutional
amendment and a constitutional revision is dubious. The authority
cited in Kelly in support of its amendment/revision distinction is
marginal at best.7

STATE PUBLIC POLICY STRONGLY SUPPORTS SUBMITTING

BALLOT INITIATIVES TO THE VOTERS

When analyzing this case, the Court’s public policy must not be
overlooked. It has long been recognized that the citizens’ right to decide
whether to amend the state constitution must be zealously protected.8

do not expressly or impliedly provide criteria for distinguishing between

an “amendment” and a “revision.” To support its distinction, the Court
of Appeals relied heavily on Kelly. That opinion rejected the dictionary
definitions of “revision” and “amendment,” stating that the words
“implie[d]” and “suggest[ed]” different meanings. Id. at 217-218. The
current majority of this Court has explicitly rejected such reasoning
many times. In Nat’l Pride at Work, Inc v Governor, 481 Mich 56, 67-68
(2008), it stated: “This Court typically discerns the common understand-
ing of constitutional text by applying each term’s plain meaning at the
time of ratification.” This majority routinely consults dictionaries to
ascertain the plain meaning of a term. Cox v Flint Bd of Hosp Managers,
467 Mich 1, 18 (2002). The dictionary definitions of “amend” and “revise”
do not support the Court of Appeals decision in this case.
7
The language from Kelly most relied on by plaintiffs to distinguish
an “amendment” from a “revision” cites Livermore v Waite, 102 Cal
113 (1894), and a dissenting opinion from People v Stimer, 248 Mich
272, 287 (1929). Kelly, supra at 217-218. Hence, Kelly relied on foreign
law and a Michigan Supreme Court dissent. Having nothing other
than Kelly, the Court of Appeals also relied on McFadden, supra, more
foreign law. McFadden based its amendment/revision distinction prima-
rily on the California case of Livermore, supra. I agree with Justice
CORRIGAN’s questioning of the importation of California law to define the
Michigan Constitution. Kelly’s reliance on Livermore reduces its persua-
siveness, in my mind. Finally, it is hardly worth mentioning that the Stimer
dissent is not binding authority. Therefore, the Kelly Court’s reliance on
that dissent only further undermines the value of its conclusions regarding
the amendment/revision distinction.
8
“This Court has a tradition of jealously guarding against . . . encroach-
ments on the people’s right to propose laws and constitutional amendments
through the petition process.” Ferency v Secretary of State, 409 Mich 569,
601 (1980), citing Wolverine Golf Club v Secretary of State, 384 Mich 461
(1971).
968 482 MICHIGAN REPORTS
One hundred years ago, Michigan adopted the direct citizen initiative
in the Michigan Constitution of 1908. Initially, it allowed the Legislature
to veto any citizen-initiated proposal to amend the constitution. However,
only five years after its adoption, the constitution was amended, elimi-
nating the Legislature’s power to override the will of the citizenry to
amend the constitution.
Cases decided by this Court since then have consistently rejected
limitations on citizen-initiated amendments, especially before the people
have an opportunity to vote on them.9 This Court has also specifically
noted the absence of a single-subject limitation for a proposed constitu-
tional amendment, such as the one adopted in California.10
It is therefore well settled in Michigan law that our public policy
recognizes the importance of allowing voters whenever possible to use the
ballot box to decide issues.11 This policy has been enshrined in the
Michigan Constitution for a century.12 And, when assessing the validity
of ballot measures, this Court has consistently held that important public
policy in high esteem.13
Hence, the Court should proceed with great caution when deciding to
withhold the decision on this ballot initiative from the people of the state.
To do so without allowing the Board of State Canvassers to adopt a
statement of purpose does not reflect such caution and is, in my opinion,
a rush to judgment.

9
Ferency, supra at 601-602; City of Jackson v Comm’r of Revenue, 316
Mich 694 (1947); Hamilton v Secretary of State, 212 Mich 31 (1920).
10
Graham v Miller, 348 Mich 684, 692 (1957). Appellees argued in the
alternative before the Court of Appeals that this initiative violates the
Michigan Constitution because the constitution allows only amendments
that embrace a single purpose.
11
See Blank v Dep’t of Corrections, 462 Mich 103, 150 (2000) (MARKMAN
J., concurring) (“Indeed, there is no more constitutionally significant
event than when the wielders of ‘[a]ll political power’ under [the
Michigan Constitution] choose to exercise their extraordinary authority
to directly approve or disapprove of an amendment thereto.”); Grand
Rapids City Clerk v Superior Court Judge, 366 Mich 335, 340 (1962)
(reversing temporary injunction enjoining annexation election because
“[t]he people are more closely involved with their government in elec-
tions than in almost any other process. Interference by the courts . . .
should be avoided. Those complaining of the election have a clear and
adequate remedy by quo warranto to test the constitutional issue in the
event of a favorable vote.”).
12
See Const 1963, art 2, § 9; Const 1908, art 5, § 1 (reserving the
powers of initiative and referendum to the people of Michigan).
13
“[W]e are not unmindful of the fact that to now declare the
amendment a nullity would thwart the expressed will of the voters.” City
of Jackson, supra at 711.
 ACTIONS ON APPLICATIONS 969
THE UNFORTUNATE RAMIFICATIONS OF TODAY’S ORDER

I also note that, by affirming only the result reached by the Court of
Appeals, the majority leaves the law in this area sadly unsettled. Rather
than articulate its own analysis of the issues, the majority elects simply
to summarily keep the initiative off the ballot while rejecting the
reasoning of the Court of Appeals. What guidance has this Court offered
to individuals and organizations that wish to sponsor ballot initiatives in
the future? How are they to know how many constitutional changes in
one initiative are too many, or how sweeping is too sweeping?
The Reform Michigan Government Now! petition contains approxi-
mately 19,000 words and makes changes or additions to 28 different
sections of the constitution. Some of my colleagues indicate, without
support carrying precedential force, that this initiative is unconstitu-
tional because it is too extensive. Would an initiative with 18,000 words
pass constitutional muster? Would one making changes to 27 sections of
the constitution be excessive?
Some of my colleagues opine, without explanation, that it would be
impossible to provide a true and impartial statement of this ballot
initiative in 100 words. To what extent, then, must statements of purpose
for future initiatives be more detailed than those in the past? Does
rendering it more difficult to get a ballot proposal approved by the
Elections Division and the Board of State Canvassers not contradict our
public policy?
The Court fails to provide standards that would answer these essen-
tial questions. I submit that we have neglected our duty to the citizens of
Michigan to serve as the final arbiter of the law. And in few instances is
that duty more important than in this case.

Reconsideration Denied September 8, 2008:

MARTIN V SECRETARY OF STATE, No. 137173. The motion for immediate

consideration is granted. The motion for reconsideration of this Court’s
September 4, 2008, order is considered, and it is denied, because it does
not appear that the order was entered erroneously. While under ordinary
circumstances, this Court might have ordered the trial court to allow the
proposed intervenor-appellant to intervene and then remanded for
further proceedings, after which the intervenor-appellant would have
been able to appeal an adverse trial court ruling on the merits, under the
instant emergency circumstances, we believe that it was necessary to
address both of these matters in the same order. Summary disposition
entered at 482 Mich 956. Reported below: 280 Mich App 417.
CAVANAGH and WEAVER, JJ. We would grant reconsideration for the
reasons set forth in Justice CAVANAGH’s September 4, 2008, concurring
and dissenting statement in this case.
KELLY, J. I would grant reconsideration for the reasons set forth in my
September 4, 2008, dissenting statement in this case.
970 482 MICHIGAN REPORTS
Summary Dispositions September 9, 2008:

INNES V ALLIED AUTOMOTIVE GROUP, INC, No. 134319. By order of

January 30, 2008, the application for leave to appeal the May 24, 2007,
order of the Court of Appeals was held in abeyance pending the decision
in Stokes v Chrysler LLC (Docket No. 132648). On order of the Court, the
case having been decided on June 12, 2008, 481 Mich 266 (2008), the
application is again considered and, pursuant to MCR 7.302(G)(1), in lieu
of granting leave to appeal, we remand this case to the Board of
Magistrates for a new hearing and decision consistent with this Court’s
decision in Stokes. The plaintiff’s current entitlement to benefits shall
continue until a new decision is issued by the Board. Court of Appeals No.
276633.
WEAVER, J. I would grant leave to appeal.
PEOPLE V EARL DIXON, No. 135919. Pursuant to MCR 7.302(G)(1), in
lieu of granting leave to appeal, we remand this case to the Court of
Appeals for expedited consideration as on leave granted in light of People
v Muttscheler, 481 Mich 372 (2008). Court of Appeals No. 282134.
PEOPLE V MUHN, No. 136577. Pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we remand this case to the Court of Appeals. On
remand, while retaining jurisdiction, the Court of Appeals shall remand
the case to the Macomb Circuit Court for appointment of counsel for the
defendant, if determined to be indigent, and for the circuit court to
prepare a certified concise statement of proceedings arising from the
March 6, 2007, sentencing hearing and all postjudgment proceedings.
Once the circuit court has prepared a proposed concise statement of
proceedings, it shall serve copies on all parties along with a notice of
hearing with the date, time, and place for settlement of the concise
statement. Thereafter, the circuit court shall proceed in accordance with
MCR 7.205(G)(2), (3), and (4). Upon return to the Court of Appeals, that
court shall consider the certified concise statement of proceedings, and
any further briefing by the parties, and shall decide whether to grant,
deny, or order other relief, in accordance with MCR 7.205(D)(2).
The motion to add issue and motion to remand for an evidentiary
hearing regarding the claim of ineffective assistance of counsel are
denied. We do not retain jurisdiction. Court of Appeals No. 284173.
PEOPLE V BINSCHUS, No. 136600. Pursuant to MCR 7.302(G)(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. 283799.
WEAVER, J. I would deny leave to appeal.

Leave to Appeal Denied September 9, 2008:

PEOPLE V MADDOX, No. 135542; Court of Appeals No. 278045.

PEOPLE V MADDOX, No. 135707. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 282785.
 ACTIONS ON APPLICATIONS 971
PEOPLE V KYLE, No. 135842. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 279206.
PEOPLE V WITBRODT, No. 135896. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 279144.
PEOPLE V RAYMOND GRAY, No. 135901. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 282552.
PEOPLE V DARNELL ANDERSON, No. 135905. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). The motion for a new trial and an evidentiary hearing is denied.
Court of Appeals No. 279278.
PEOPLE V LEO GLOVER, No. 135915. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 281975.
PEOPLE V HOLLINGSWORTH, No. 135930. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 279209.
PEOPLE V BATEY, No. 135931. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 280958.
PEOPLE V BURGESS, No. 135960. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 279002.
PEOPLE V ANTON, No. 135969. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 280064.
PEOPLE V TAYLOR, No. 135972. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 278028.
PEOPLE V MICHAEL WILSON, No. 135975. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 278937.
PEOPLE V MAURO, No. 135978. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 278853.
PEOPLE V TERVARES WILLIAMS, No. 135982. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). The motion to remand is denied. Court of Appeals No. 281058.
972 482 MICHIGAN REPORTS
PEOPLE V REGINALD BROWN, No. 135987. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 280337.
PEOPLE V CUSTER, No. 135990; Court of Appeals No. 282796.
PEOPLE V GOODSON, No. 135993. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 282378.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Scott, 480 Mich 1019 (2008).
PEOPLE V RODEN, No. 136000. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 282992.
PEOPLE V MAURICE WILLIAMS, No. 136002. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 281312.
PEOPLE V ANNABEL, No. 136011. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 279358.
PEOPLE V OWENS, No. 136013. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). The
motion for miscellaneous relief is granted. Court of Appeals No. 279169.
PEOPLE V SCOTT DAVIS, No. 136025. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 281255.
PEOPLE V KORAS, No. 136026. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). The motion to amend the
defendant’s pleading is granted. Court of Appeals No. 282578.
PEOPLE V FRANK PARKER, No. 136031. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 281702.
PEOPLE V WAYNE MOORE, No. 136032. The defendant’s motion for relief
from judgment is prohibited by MCR 6.502(G). Court of Appeals No.
281405.
PEOPLE V DORTCH, No. 136042. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 282660.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Conway, 474 Mich 1140 (2006).
PEOPLE V CRATER, No. 136055; Court of Appeals No. 283275.
PEOPLE V OEHLER, No. 136070. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 279835.
 ACTIONS ON APPLICATIONS 973
PEOPLE V GREER, No. 136072. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 281980.
PEOPLE V DWAYNE WILLIAMS, No. 136086. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 279777.
PEOPLE V ANTHONY POWERS, No. 136093. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 282359.
PEOPLE V MACKIN and PEOPLE V WOZNIAK, Nos. 136124 and 136125;
Court of Appeals Nos. 281229 and 281230.
PEOPLE V BILLY POWELL, No. 136142. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 282376.
PEOPLE V DAVID, No. 136156. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 279937.
PEOPLE V PEOPLES, No. 136157; Court of Appeals No. 281986.
PEOPLE V ERICK REED, No. 136161. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 279601.
PEOPLE V IJOMA RAYMOND, No. 136167. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 279447.
PEOPLE V BOBBY WILLIAMS, No. 136169. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 279882.
PEOPLE V JESSE JONES, No. 136170. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 279976.
PEOPLE V GLENN, No. 136179; Court of Appeals No. 283109.
PEOPLE V MONTEZ COOPER, No. 136181. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 282525.
PEOPLE V HINE, No. 136186. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 283219.
PEOPLE V WOOTEN, No. 136219. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 283691.
JONES V DEPARTMENT OF CORRECTIONS, No. 136221; Court of Appeals No.
279712.
974 482 MICHIGAN REPORTS
PEOPLE V FREEZEL JONES, JR, No. 136240. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 280570.
PEOPLE V SAMS, No. 136256; Court of Appeals No. 282506.
BURKE V BURKE RENTAL SERVICES, INC, No. 136277; Court of Appeals No.
275828.
PEOPLE V BROOKS, No. 136286; Court of Appeals No. 283880.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Houlihan, 480 Mich 1165 (2008).
PEOPLE V THOMPKINS, No. 136305. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 281974.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Conway, 474 Mich 1140 (2006).
PEOPLE V ALTMAN, Nos. 136311 and 136313. The defendant has failed
to meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals Nos. 281963 and 281965.
PEOPLE V COATS, No. 136325. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 282339.
PEOPLE V BLANKS, No. 136337; Court of Appeals No. 255257.
PEOPLE V DUNCIL, No. 136343; Court of Appeals No. 273116.
PEOPLE V JERMAINE MURPHY, No. 136408; Court of Appeals No. 277104.
PEOPLE V WRENFROW, No. 136410; Court of Appeals No. 283693.
GRAND RAPIDS HOUSING COMMISSION V OHIO FARMERS INSURANCE COMPANY,
No. 136414; Court of Appeals No. 273513.
BAERE COMPANY V ADVANTAGE 99 TD, No. 136417; Court of Appeals No.
268238.
PEOPLE V KELLY POWELL, No. 136422; reported below: 278 Mich App
318.
PEOPLE V HOGG, No. 136429; Court of Appeals No. 283738.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Conway, 474 Mich 1140 (2006).
VEMULAPALLI V DEPARTMENT OF ENVIRONMENTAL QUALITY, No. 136443;
Court of Appeals No. 279705.
PEOPLE V MOUSSAED, No. 136444; Court of Appeals No. 275730.
PEOPLE V HILL, No. 136449; Court of Appeals No. 284343.
PEOPLE V GOODWILL, No. 136464; Court of Appeals No. 275244.
 ACTIONS ON APPLICATIONS 975
PEOPLE V FREDRICK ROBINSON, No. 136477; Court of Appeals No. 276889.
PEOPLE V MCCOY, No. 136478; Court of Appeals No. 274834.
PEOPLE V HOLTZ, No. 136480; Court of Appeals No. 274008.
BURLINGAME V NATIONSRENT, INC, No. 136482; Court of Appeals No.
284294.
PEOPLE V STOCKS, No. 136483; Court of Appeals No. 275683.
PEOPLE V ROBERT JENKINS, No. 136485; Court of Appeals No. 284475.
SPECTRUM HEALTH V TITAN INSURANCE COMPANY, No. 136486; Court of
Appeals No. 275341.
PEOPLE V JEREMY JOSEPH, No. 136487; Court of Appeals No. 273587.
PEOPLE V ANTHONY SPRAGGINS, No. 136489; Court of Appeals No.
275844.
PEOPLE V GREGORY SNYDER, No. 136493; Court of Appeals No. 283720.
PEOPLE V ROBERTS, No. 136494; Court of Appeals No. 284026.
PEOPLE V SCHAAF, No. 136497; Court of Appeals No. 282969.
PEOPLE V KIRKLAND, No. 136511; Court of Appeals No. 281387.
PEOPLE V JEDLICKI, No. 136513; Court of Appeals No. 281022.
PEOPLE V BALLINGER, No. 136522; Court of Appeals No. 275752.
PEOPLE V NORMAN, No. 136529; Court of Appeals No. 277990.
PEOPLE V FORREST, No. 136536. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 281018.
PEOPLE V MANSFIELD, No. 136537; Court of Appeals No. 277155.
PEOPLE V MCCARTY, No. 136538; Court of Appeals No. 276997.
PEOPLE V HOSKINS, No. 136544; Court of Appeals No. 282037.
VANVORST V MAXITROL COMPANY, No. 136545; Court of Appeals No.
278995.
PEOPLE V QUATRINE, No. 136549; Court of Appeals No. 272074.
PEOPLE V LUSTIG, No. 136553; Court of Appeals No. 272994.
BLEAU V GENERAL MOTORS CORPORATION, No. 136555; Court of Appeals
No. 281260.
PEOPLE V TAUREAN JENKINS, No. 136556; Court of Appeals No. 284454.
WILSON V COMCAST CABLEVISION CORPORATION, No. 136557; Court of
Appeals No. 281228.
976 482 MICHIGAN REPORTS
PEOPLE V KEMMER, No. 136565; Court of Appeals No. 283552.
PEOPLE V NICHOLS, No. 136569; Court of Appeals No. 276246.
PEOPLE V ALBERT THOMAS, No. 136571; Court of Appeals No. 284025.
PEOPLE V ALIF, No. 136582; Court of Appeals No. 283837.
PEOPLE V RASHAD MOORE, No. 136584; Court of Appeals No. 275691.
JACOBSON V NORFOLK DEVELOPMENT CORPORATION, Nos. 136586 and
136588; Court of Appeals Nos. 281587 and 283361.
PEOPLE V EATON, No. 136590; Court of Appeals No. 283031.
VAN BUREN V PANTHER CRANKSHAFTS, No. 136593; Court of Appeals No.
275435.
PEOPLE V DARRON ANDERSON, No. 136598; Court of Appeals No. 283972.
PEOPLE V MACKEY, No. 136603; Court of Appeals No. 285067.
BROWN V DEPARTMENT OF CORRECTIONS, No. 136604; Court of Appeals No.
281710.
WESTMOORE APARTMENTS V MORRIS, No. 136605; Court of Appeals No.
281539.
PEOPLE V JAMES SIMMONS, No. 136608; Court of Appeals No. 277239.
PEOPLE V JASON FRANKLIN, No. 136610; Court of Appeals No. 284109.
PEOPLE V HYLAND STERLING, No. 136611; Court of Appeals No. 270838.
PEOPLE V MICHAEL FREEMAN, No. 136632; Court of Appeals No. 283350.
PEOPLE V FARRAR, No. 136633; Court of Appeals No. 284072.
PEOPLE V EARL, No. 136638; Court of Appeals No. 284561.
PEOPLE V DEMON ATKINS, No. 136642; Court of Appeals No. 284627.
PEOPLE V ANDREW BELL, No. 136643; Court of Appeals No. 274771.
PEOPLE V RINCONES, No. 136651; Court of Appeals No. 284460.
BEGIN V MICHIGAN BELL TELEPHONE COMPANY/SBC, No. 136654; Court of
Appeals No. 280717.
LABARGE V WALGREEN COMPANY, No. 136655; Court of Appeals No.
281923.
PEOPLE V NICKERSON, No. 136667; Court of Appeals No. 283594.
PEOPLE V REYNAURD PERKINS, No. 136668; Court of Appeals No. 282776.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Conway, 474 Mich 1140 (2006).
PEOPLE V SHAWN WILLIAMS, No. 136677; Court of Appeals No. 277006.
 ACTIONS ON APPLICATIONS 977
JOY V JOY, No. 136681; Court of Appeals No. 274854.
PEOPLE V GRIFFITH, No. 136682. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 281785.
ICHESCO V KIRCHER, No. 136683; Court of Appeals No. 272905.
PEOPLE V WYNN, No. 136684; Court of Appeals No. 277619.
PEOPLE V OWEN, No. 136692; Court of Appeals No. 284491.
PEOPLE V BENNER, No. 136703; Court of Appeals No. 284808.
CIARAMITARO V GREEKTOWN CASINO, LLC, No. 136707; Court of Appeals
No. 284781.
PEOPLE V SYLVESTER WATKINS, No. 136711; Court of Appeals No. 284477.
PEOPLE V GIBISAS, No. 136712; Court of Appeals No. 284734.
PEOPLE V WALDON, No. 136724; Court of Appeals No. 276152.
HOLMES V GENERAL MOTORS CORPORATION, No. 136745; Court of Appeals
No. 281446.
PEOPLE V BOYT, No. 136762; Court of Appeals No. 272728.
PEOPLE V RIVAS, No. 136777; Court of Appeals No. 276592.
LESLIE V COCA COLA ENTERPRISES, No. 136783; Court of Appeals No.
283488.

Reconsiderations Denied September 9, 2008:

PEOPLE V QUINTANILLA, No. 130599. Leave to appeal denied at 481 Mich

909. Court of Appeals No. 266178.
KELLY, J. I would grant reconsideration and, on reconsideration, would
grant leave to appeal for the reasons set forth in my dissenting statement
in People v Houlihan, 480 Mich 1165 (2008).
PEOPLE V TINCHER, No. 134816. Leave to appeal denied at 481 Mich
822. Court of Appeals No. 277654.
GALLANT V GALLANT, No. 134902. Leave to appeal denied at 480 Mich
1134. Court of Appeals No. 265396.
MCLEOD V DEPARTMENT OF TREASURY, No. 135380. Leave to appeal
denied at 480 Mich 1135. Court of Appeals No. 280282.
BRASHERS V VANDERROEST, No. 135427. Leave to appeal denied at 481
Mich 858. Court of Appeals No. 279999.
WEAVER and KELLY, JJ. We would grant the motion for reconsideration.
PEOPLE V FERQUERON, No. 135516. Leave to appeal denied at 481 Mich
911. Court of Appeals No. 281278.
978 482 MICHIGAN REPORTS
PEOPLE V FAHRNER, No. 135875. Leave to appeal denied at 481 Mich
878. Court of Appeals No. 269255.
NSK CORPORATION V DEPARTMENT OF TREASURY, No. 135997. Summary
disposition entered at 481 Mich 884. Reported below: 277 Mich App 692..
KELLY, J. I would grant reconsideration and, on reconsideration, would
grant leave to appeal.
CORRION V LIVINGSTON CIRCUIT JUDGE, No. 136121. Leave to appeal
denied at 481 Mich 915. Court of Appeals No. 284024.
PEOPLE V PEREZ-CHICA, No. 136288. Leave to appeal denied at 481 Mich
917. Court of Appeals No. 276153.

Summary Dispositions September 10, 2008:

PEOPLE V STANLEY BROWN, No. 134137. By order of April 28, 2008, the
prosecuting attorney was directed to answer the application for leave to
appeal the May 14, 2007, order of the Court of Appeals. On order of the
Court, the answer having been received, the application for leave to
appeal is again considered and, pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we remand this case to the Wayne Circuit Court
for a hearing to determine whether defendant received the effective
assistance of counsel, and whether newly discovered evidence produced
in the civil suit filed on behalf of the complainant requires a new trial.
People v Ginther, 390 Mich 436 (1973). In reviewing the assistance
provided by counsel, the circuit court shall determine if the defendant’s
trial attorney was ineffective for failing to procure the National Council
on Alcoholism and Drug Dependence staff activity logs before trial, and
for failing to cross-examine the complainant regarding inconsistencies in
her trial testimony, and between her trial testimony, preliminary exami-
nation testimony, and what she claimed in the initial police report.
We further order the Wayne Circuit Court, in accordance with
Administrative Order No. 2003-3, to determine whether the defendant is
indigent and, if so, to appoint counsel to represent the defendant in the
proceedings on remand. We do not retain jurisdiction. Court of Appeals
No. 274184.
PEOPLE V PUTRUS, No. 135762. The motion for miscellaneous relief is
granted. The application for leave to appeal the December 20, 2007,
judgment of the Court of Appeals is considered and, pursuant to MCR
7.302(G)(1), in lieu of granting leave to appeal, we remand this case to the
Court of Appeals for consideration, as on leave granted, of the defen-
dant’s argument that the trial court erroneously permitted the introduc-
tion of evidence of prior drug transactions under MRE 404(b). In all other
respects, leave to appeal is denied, because we are not persuaded that the
remaining questions presented should be reviewed by this Court. Court
of Appeals No. 280767.
PEOPLE V KEITH DAVIS, No. 136073. Pursuant to MCR 7.302(G)(1), in
lieu of granting leave to appeal, we vacate in part the judgment of the
 ACTIONS ON APPLICATIONS 979
Court of Appeals, and we remand this case to the Kent Circuit Court for
reconsideration of scoring offense variable 10, MCL 777.40, in light of
this Court’s decision in People v Cannon, 481 Mich 152 (2008). In all
other respects, leave to appeal is denied, because we are not persuaded
that the remaining questions presented should be reviewed by this Court.
We do not retain jurisdiction. Reported below: 277 Mich App 676.
PEOPLE V STROSS, No. 136235. Pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we reverse the judgment of the Court of
Appeals. Defendant received a variance to paint an oversized sign from
the local Zoning Board of Appeals, under specified conditions, on July 15,
1997. In 2005, a jury convicted defendant under a local ordinance for
violating these conditions. The Court of Appeals concluded that the
condition prohibiting “lettering” was “an unconstitutional regulation of
speech, infringing on defendant’s First Amendment protections,” and
reversed the conviction.
The Court of Appeals erroneously reached this conclusion, in our
judgment. At the time defendant’s variance was granted, then-current
MCL 125.585(11) required a party to challenge the constitutionality of
the variance within 21 days. Defendant’s painting the word “LOVE” on
the sign clearly violated the “lettering” condition of the variance. Because
this statute prescribed the relevant procedure for challenging the consti-
tutionality of the conditions, defendant was obligated to challenge these
conditions in accordance with this procedure. His failure to do so
precludes him from raising his constitutional challenge eight years later.
See Finlayson v West Bloomfield Twp, 320 Mich 350, 357-358 (1948)
(requiring a claim to be filed within the time period specified by statute);
City of Troy v Aslanian, 170 Mich App 523, 530 (1988) (“A party who has
accepted and retained the advantages of a variance granted on condition
is estopped to attack the propriety of the condition.”). Because the Court
of Appeals did not address the remainder of defendant’s issues on appeal,
we remand to the Court of Appeals to consider defendant’s remaining
arguments. Court of Appeals No. 271764.
CAVANAGH and KELLY, JJ. We would deny leave to appeal.
PEOPLE V MAHON, No. 136251. Pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we remand this case to the Court of Appeals for
consideration as on leave granted of the challenge to the scoring of
offense variable 10, MCL 777.40, in light of People v Cannon, 481 Mich
152 (2008). In all other respects, leave to appeal is denied, because we are
not persuaded that the remaining questions presented should be re-
viewed by this Court. We do not retain jurisdiction. Court of Appeals No.
283086.
WEAVER and CORRIGAN, JJ. We would deny leave to appeal.
PEOPLE V FISHER HOTEL, No. 136306. Pursuant to MCR 7.302(G)(1), in
lieu of granting leave to appeal, we reverse the judgment of the Court of
Appeals, for the reasons stated in the Court of Appeals dissenting
opinion, and we remand this case to the Genesee Circuit Court for entry
of an order granting the plaintiff’s motion for summary disposition.
Court of Appeals No. 274009.
980 482 MICHIGAN REPORTS
CAVANAGH and KELLY, JJ. We would deny leave to appeal.
PEOPLE V WATTS, No. 136495. Pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we vacate the judgment of the Court of Appeals,
and we remand this case to the Court of Appeals. Reversal of the
defendant’s convictions is not the proper remedy for the trial court’s
failure to articulate its reasons for admitting a prior conviction for
impeachment on the record, as required by MRE 609(b). While retaining
jurisdiction, the Court of Appeals shall remand this case to the Wayne
Circuit Court with directions to make a record of its decision to permit
impeachment of the defendant with an armed robbery conviction. Upon
completion of that analysis by the trial court, the Court of Appeals shall
consider whether the trial court abused its discretion in admitting the
prior conviction and, if not, shall also consider the other issues raised by
the defendant, but not addressed during the initial review of the case. We
do not retain jurisdiction. Court of Appeals No. 272369.
KELLY, J. I would deny leave to appeal.
CORRIGAN, J. I would reverse the judgment of the Court of Appeals for
the reasons stated by the dissenting judge, and remand this case to the
Court of Appeals for consideration of other issues raised by the defen-
dant.

Leave to Appeal Denied September 10, 2008:

PEOPLE V CHAMBERS, No. 135736. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). The
motion to stay and the motion for miscellaneous relief are denied. This
order does not prevent the defendant from filing a second motion for
relief from judgment based on newly discovered evidence under MCR
6.502(G)(2). Court of Appeals No. 277828.
PEOPLE V REGINALD WILLIAMS, No. 136068; Court of Appeals No. 273054.
CAVANAGH and KELLY, JJ. We would grant leave to appeal.
PEOPLE V GARTH, No. 136187; Court of Appeals No. 276597.
KELLY, J. I would remand this case for a hearing pursuant to People v
Ginther, 390 Mich 436 (1973).
PEOPLE V EDDIE ANDERSON, IV, No. 136220; Court of Appeals No.
274237.

Summary Disposition September 16, 2008:

PEOPLE V VANDENBERG, No. 136867. Pursuant to MCR 7.302(G)(1), in

lieu of granting leave to appeal, we remand this case to the Court of
Appeals for consideration as on leave granted of the substantive issues
contained in Issues IV and V in the application previously filed in the
Court of Appeals in this case. Issues IV and V are to be heard with the
sentencing issues on which the Court of Appeals has already granted the
defendant’s application for leave to appeal. In all other respects, the
 ACTIONS ON APPLICATIONS 981
application for leave to appeal is denied, because we are not persuaded
that the remaining question presented should be reviewed by this Court.
Court of Appeals No. 285309.

Leave to Appeal Granted September 17, 2008:

PEOPLE V RICHARD BRYANT, No. 133725. The application for leave to

appeal the March 6, 2007, judgment of the Court of Appeals is considered,
and it is granted, limited to the issue whether testimony about Anthony
Covington’s statements to the police constituted inadmissible testimonial
hearsay within the meaning of Crawford v Washington, 541 US 36
(2004), and Davis v Washington, 547 US 813 (2006).
The Criminal Defense Attorneys of Michigan, the Prosecuting Attor-
neys Association of Michigan, and the Criminal Law Section of the State
Bar of Michigan are invited to file briefs amicus curiae. Other persons or
groups interested in the determination of the issue presented in this case
may move the Court for permission to file briefs amicus curiae. Court of
Appeals No. 247039.
HUNTER V HUNTER, No. 136310. The application for leave to appeal the
March 20, 2008, judgment of the Court of Appeals is considered, and it is
granted, limited to the issues: (1) whether the standard 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
rights 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 she seeks custody is relevant to a proper fitness
determination; (3) whether the lower courts here properly applied the
Child Custody Act’s presumption favoring the children’s established
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 determinations regarding the best interests of
the children were against the great weight of the evidence. Court of
Appeals No. 279862.
JACKSON V ESTATE OF GREEN, No. 136423. The parties shall include
among the issues to be briefed: (1) whether a partition action filed by an
individual who jointly owns real estate with other persons survives the
individual’s death, if the form of joint ownership is an ordinary joint
tenancy that does not expressly grant rights of survivorship; (2) if so,
whether the deed nevertheless automatically transfers to the surviving
owner upon the deceased owner’s death if a partition order had not been
entered before the death; (3) when a cause of action accrues, and the
statute of limitations begins to run, for breach of verbal loan that did not
include explicit terms for repayment; (4) whether the lender must
demand payment on such a loan within a specified period after the loan
is made;
982 482 MICHIGAN REPORTS
and (5) whether the statute of limitations barred plaintiff’s suit on her
loan(s) to the decedent. Court of Appeals No. 269244.

Summary Dispositions September 17, 2008:

PEOPLE V CHADWICK, No. 136146. Pursuant to MCR 7.302(G)(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. 280256.
PEOPLE V TUDOR, No. 136209. Pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we remand this case to the Kent Circuit Court.
At sentencing, the defendant requested a number of corrections to the
presentence investigation report, and the court indicated that most of the
changes would be made. The copy of the report in the record does not
reflect those changes. On remand, the circuit court shall assure that a
corrected copy of the report is prepared and transmitted to the Depart-
ment of Corrections per MCR 6.425. In all other respects, leave to appeal
is denied, because we are not persuaded that the remaining question
presented should be reviewed by this Court. We do not retain jurisdiction.
Court of Appeals No. 283090.
BRADDOCK V JGR, INC, No. 136236. Pursuant to MCR 7.302(G)(1), in
lieu of granting leave to appeal, we remand this case to the Court of
Appeals for consideration as on leave granted. See MCL 445.1862(1),
which provides that “[a] regulated lender is not liable for a violation of
this act if the regulated lender has fully complied with the federal Truth
in Lending Act, 15 USC 1601 et seq. (TILA), and Mourning v Family
Publication Svcs, Inc, 411 US 356 (1973), and other federal caselaw
construing TILA’s definition of “finance charge.” Court of Appeals No.
278982.
RIEBSCHLEGER V RIEBSCHLEGER, No. 136323. Pursuant to MCR
7.302(G)(1), in lieu of granting leave to appeal, we vacate that part of the
judgment of the Court of Appeals that affirmed the circuit court’s
distribution of marital assets. The circuit court did not make sufficient
findings to allow this Court to determine, on review, whether the division
of marital property was equitable. See Koy v Koy, 274 Mich App 653, 660
(2007). We remand this case to the Saginaw Circuit Court to make
detailed findings of fact regarding the identity and value of both the
marital assets and the separate assets of the parties, including marital
debts and separate debts of the parties. The circuit court shall then
determine the percentage of the marital estate to be awarded to each
party. The circuit court may, in its discretion, consider redistribution of
assets. If the division of marital property significantly departs from
congruence between the parties, the circuit court shall clearly explain its
rationale for the unequal division. See McNamara v Horner, 249 Mich
App 177, 188 (2002). We do not retain jurisdiction. Court of Appeals No.
270226.
STONE V RW LAPIN, INC, No. 136438. Pursuant to MCR 7.302(G)(1), in
lieu of granting leave to appeal, we reverse the judgment of the Court of
 ACTIONS ON APPLICATIONS 983
Appeals and we reinstate the order of the Board of Magistrates. The Court
of Appeals erred by approving the Workers’ Compensation Appellate Com-
mission’s (WCAC) basis for modifying the magistrate’s benefit award. The
WCAC exceeded its authority by substituting its own favorable view of the
testimony of the plaintiff’s medical expert for the unfavorable assessment
provided by the magistrate without providing a weighing of the proofs and
an analysis as to why that expert’s credibility should be evaluated in a
contrary manner. The WCAC also erred by shifting the burden of proving
work-related injury from the plaintiff, where it belonged pursuant to MCL
418.851, to the defendants, by presuming the plaintiff’s entitlement to
benefits upon the mere rejection of some of the magistrate’s numerous
reasons for ruling in a contrary manner. In addition, the Court of Appeals
erred by holding that the average weekly wage must be calculated pursuant
to MCL 418.371(3) in every instance where it can be determined using that
subsection. The average weekly wage calculation provisions reveal “the
Legislature’s overriding desire to have the basis for compensation reflect an
accurate measure of wages.” Rowell v Security Steel Processing Co, 445
Mich 347, 356-357 (1994). In this case, the magistrate did not err in choosing
to utilize MCL 418.371(6) to determine the plaintiff’s average weekly wage.
Court of Appeals No. 275684.
KELLY, J. I would deny leave to appeal.
In re ROSS (DEPARTMENT OF HUMAN SERVICES V ROSS), No. 137045.
Pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we
reverse the judgment of the Court of Appeals and we reinstate the
November 26, 2007, order of the Clinton Circuit Court, Family Division,
terminating the respondent-mother’s parental rights to the minor chil-
dren. The Court of Appeals misapplied the clear error standard by
substituting its judgment for that of the trial court, MCR 2.613(C); In re
Miller, 433 Mich 331 (1989), and rendered a decision that was contrary to
the clear and convincing evidence supporting termination of the
respondent-mother’s parental rights pursuant to MCL 712A.19b(3)(c)(i),
(g), and (j). We remand this case to the Clinton Circuit Court, Family
Division, for further proceedings not inconsistent with this order. We do
not retain jurisdiction. Court of Appeals No. 282514.
MARKMAN, J. I would deny leave to appeal.

Leave to Appeal Denied September 17, 2008:

PEOPLE V DRAUGHN, No. 135367; Court of Appeals No. 279041.

KELLY, J. I would grant reconsideration and, on reconsideration, would
reverse the August 1, 2007, decision of the Court of Appeals and remand
this case to the trial court for resentencing.
PEOPLE V GULLEY, No. 135468; Court of Appeals No. 276266.
PEOPLE V JOHN SNYDER, No. 135645; Court of Appeals No. 272542.
PEOPLE V WILLIE SANDERS, No. 135948. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 279141.
984 482 MICHIGAN REPORTS
PEOPLE V KIMBLE, No. 135955. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 278902.
MARKMAN, J. (concurring). Because the trial court refused to allow
defendant to present evidence that the complainant’s mother had previously
made the same kind of unsubstantiated allegations of sexual abuse against
the complainant’s biological father that the complainant made against
defendant under substantially similar circumstances, I continue to be
persuaded that defendant did not receive a fair trial. However, because a
majority of this Court has already denied leave to appeal on this issue, People
v Kimble, 470 Mich 871 (2004), and because the issues that defendant raises
in this appeal are, in my judgment, meritless, I concur in this order.
Nonetheless, I continue to view this case as a miscarriage of justice.
PEOPLE V BINIENDA, No. 136010; Court of Appeals No. 273485.
PEOPLE V LITTLE, No. 136231; Court of Appeals No. 282773.
KELLY, J. I would allow the defendant to withdraw his guilty plea.
PEOPLE V DAVID JONES, No. 136242; Court of Appeals No. 282363.
PEOPLE V FARRELL, No. 136247; Court of Appeals No. 273907.
KELLY, J. I would grant leave to appeal.
SMITH V ADVANCE TEMPORARY SERVICES, INC, No. 136304; Court of
Appeals No. 280582.
CORRIGAN, J. I would refer attorney Stephen J. Smith to the Attorney
Grievance Commission due to his behavior at the hearing before the
magistrate.
FARM BUREAU GENERAL INSURANCE COMPANY OF MICHIGAN V D & H
MARKET, INC, No. 136329; Court of Appeals No. 280556.
PEOPLE V BRIAN WHITE, No. 136357; Court of Appeals No. 276990.
KELLY, J. I would grant leave to appeal.
STOUGH V JETT SETT MANAGEMENT SERVICES, LLC and STOUGH V GENERAL
MOTORS CORPORATION, Nos. 136374 and 136375; Court of Appeals Nos.
274167 and 275441.
FULLER V ESFAHANI, No. 136394; Court of Appeals No. 271368.
CAVANAGH and KELLY, JJ. We would grant leave to appeal.
NEAL V DEPARTMENT OF CORRECTIONS, No. 136925; Court of Appeals No.
285232.
TAYLOR, C.J., did not participate.

Leave to Appeal Granted September 19, 2008:

ATTORNEY GENERAL V PUBLIC SERVICE COMMISSION, No. 136431. The

application for leave to appeal the April 1, 2008, judgment of the Court of
 ACTIONS ON APPLICATIONS 985
Appeals is considered, and it is granted, limited to the issue whether
“transmission costs” may be included in the power supply cost recovery
factor, MCL 460.6j(1)(a) and (b).
We further order that this case be argued and submitted to the Court
together with the case of In re Application of Detroit Edison Company
(Docket Nos. 134667-134669, 134671, 134673, 134674, 134676, 134677),
at such future session of the Court as both cases are ready for submission.
Court of Appeals No. 261747.
In re APPLICATION OF DETROIT EDISON COMPANY, Docket Nos. 134667,
134668, 134669, 134671, 134673, 134674, 134676, and 134677. The
motion of Detroit Edison Company to exceed the page limit is granted.
The applications for leave to appeal the July 3, 2007, judgment of the
Court of Appeals is considered, and they are granted, limited to: (1)
whether “transmission costs” may be included in the power supply
cost recovery factor, MCL 460.6j(1)(a) and (b); and (2) whether the
Court of Appeals erred in concluding that the Public Service Commis-
sion’s decision to prohibit recovery of the control premium that DTE
Energy paid to acquire MCN Energy by including the premium in
Detroit Edison’s rates was not supported by competent, material, and
substantial evidence on the whole record. Const 1963, art 6, § 28; In re
Complaint of Rovas Against SBC Michigan, 482 Mich 90, 101 (2008).
We further order that these cases be argued and submitted to the
Court together with the case of Attorney General v Public Service
Commission (Docket No. 136431), at such future session of the Court as
these cases are ready for submission. Court of Appeals Nos. 259845,
264099, 264191, 264131, 264156.

Summary Dispositions September 19, 2008:

ROBELIN V SPECTRUM HEALTH HOSPITALS, No. 135597. Pursuant to MCR

7.302(G)(1), in lieu of granting leave to appeal, we remand this case to
the Court of Appeals, for consideration, as on leave granted, of
whether the trial court abused its discretion when it denied the
defendants’ motion to strike the testimony of Ronald Gabriel, M.D. In
particular, we direct the Court of Appeals to consider whether Dr.
Gabriel’s proposed testimony meets the criteria of MCL 600.2955 and
MRE 702. See Craig v Oakwood Hosp, 471 Mich 67 (2004), and Gilbert
v DaimlerChrysler Corp, 470 Mich 749 (2004). We do not retain
jurisdiction. Court of Appeals No. 279780.
KELLY, J. I would deny leave to appeal.
ANDRES V BROWN, No. 136294. Pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we affirm the result reached by the Court of
Appeals, but for a different reason. The defendant, who was “the elective or
highest appointive executive official of [a] level[] of government . . . acting
within the scope of his executive authority[,]” MCL 691.1407(5), was
absolutely immune from tort liability. Court of Appeals No. 276473.
986 482 MICHIGAN REPORTS
MALLOY V DSI ACOUSTICAL COMPANY, No. 136561. Pursuant to MCR
7.302(G)(1), in lieu of granting leave to appeal, we vacate the order of
the Court of Appeals and we remand this case to that court for plenary
consideration. In particular, we direct the Court of Appeals to consider
whether, contrary to the WCAC’s finding, the testimony of Dr. John A.
Sauchak, as found by the magistrate, supports a specific event injury
on October 11, 2003. We also direct the Court of Appeals to consider
whether the WCAC misapplied its standard of review, MCL
418.861a(3), by neglecting to address the other evidence in the record
that was utilized by the magistrate to find an October 11, 2003, injury
date. See Mudel v Great Atlantic & Pacific Tea Company, 462 Mich 691,
703-704 (2000). Finally, we direct the Court of Appeals to consider the
arguments raised by the cross-appellants in this Court and this
Court’s decision in Stokes v Chrysler LLC, 481 Mich 266 (2008). Court
of Appeals No. 280855.
WEAVER, J. (dissenting). I dissent from the order vacating the order of
the Court of Appeals and remanding this case to the Court of Appeals for
consideration of the arguments raised by the cross-appellants in this
Court and this Court’s decision in Stokes v Chrysler LLC, 481 Mich 266
(2008).
Because I dissented from the majority opinion in this Court’s decision
in Stokes v Chrysler LLC, 481 Mich at 320 (WEAVER, J., dissenting), I
would grant leave to appeal in this case to consider whether a majority of
this Court reached the correct decision in Stokes.
CAVANAGH and KELLY, JJ. We join the statement of Justice WEAVER.

Leave to Appeal Denied September 19, 2008:

ADRIAN ENERGY ASSOCIATION, LLC v PUBLIC SERVICE COMMISSION, No.

136407; Court of Appeals No. 261718.
PEOPLE V GURDA, No. 136426; Court of Appeals No. 283690.
KELLY, J. I would remand this case for resentencing in light of People
v Cannon, 481 Mich 152 (2008).
MICHIGAN ENVIRONMENTAL COUNCIL V PUBLIC SERVICE COMMISSION, No.
136433; Court of Appeals No. 264860.

Summary Dispositions September 22, 2008:

PEOPLE V STEVEN HARRIS, No. 135272. By order of April 23, 2008, the
prosecuting attorney was directed to answer the application for leave to
appeal the October 4, 2007, order of the Court of Appeals. On order of the
Court, the answer having been received, the application for leave to
appeal is again considered and, pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we vacate the amended judgment of sentence
entered on September 6, 2006, remand this case to the Kent Circuit
 ACTIONS ON APPLICATIONS 987
Court, and direct that court to reinstate the original judgment of
sentence entered on June 14, 2006. As the prosecution concedes, when
the defendant was originally sentenced in this case, he had been
discharged from parole by the Michigan Department of Corrections, such
that the original judgment of sentence was valid. As the prosecution also
concedes, the Kent Circuit Court therefore did not have the authority to
later modify that valid original judgment of sentence. See MCR
6.429(A)(1); People v Miles, 454 Mich 90, 96 (1997). In all other respects,
leave to appeal is denied, because we are not persuaded that the
remaining questions presented should be reviewed by this Court. Court
of Appeals No. 280100.
PEOPLE V RADTKE, No. 136472. Pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we remand this case to the Wayne Circuit Court
to grant credit for time that the defendant spent in jail awaiting
resolution of the case. Though the defendant was not entitled to bail
under Const 1963, art 1, § 15, because she was charged with murder and
the proof was evident, this did not affect her eligibility for sentence credit
under MCL 769.11b. In all other respects, leave to appeal is denied,
because we are not persuaded that the remaining question presented
should be reviewed by this Court. Court of Appeals No. 283303.
PEOPLE V TIMOTHY BROWN, No. 136621. Pursuant to MCR 7.302(G)(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.
283433.
PEOPLE V CARRIER, No. 136649. Pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we vacate the sentence of the Oakland Circuit
Court, and we remand this case to the trial court for resentencing. On
remand, the trial court shall sentence the defendant within the appro-
priate sentencing guidelines range, or articulate on the record a substan-
tial and compelling reason for departing from the sentencing guidelines
range and for the extent of the departure, in accordance with People v
Babcock, 469 Mich 247 (2003), and People v Smith, 482 Mich 292 (2008).
We do not retain jurisdiction. Court of Appeals No. 284119.

Leave to Appeal Denied September 22, 2008:

PEOPLE V ORR, No. 134330; Court of Appeals No. 267189.

BAUMGART V STATE OF MICHIGAN, No. 135859; Court of Appeals No.
279142.
PEOPLE V GARRETT, No. 135900. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 282182.
PEOPLE V FALK, No. 135928; Court of Appeals No. 281400.
PEOPLE V MCCULLOCH, No. 136045; Court of Appeals No. 282557.
PEOPLE V STANLEY MILLER, No. 136081; Court of Appeals No. 279366.
988 482 MICHIGAN REPORTS
PEOPLE V JEFFREY BROWN, No. 136085. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 279572.
PEOPLE V ADAMS, No. 136154. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 283144.
PEOPLE V HERNDON, No. 136195. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 282207.
PEOPLE V PEARSON, No. 136196; Court of Appeals No. 279654.
PEOPLE V GOULAIS, No. 136198. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 282665.
PEOPLE V THEODORE WILLIAMS, No. 136212. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 280206.
PEOPLE V DESMOND JOSEPH, No. 136267. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 282646.
PEOPLE V RICHARD ROBERTSON, No. 136314. The defendant’s motion for
relief from judgment is prohibited by MCR 6.502(G). Court of Appeals
No. 283318.
PEOPLE V DEAN ROBINSON, No. 136332. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 279939.
PEOPLE V JOSE RODRIGUEZ, No. 136335. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 279394.
PEOPLE V ASKEW, No. 136340. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 281315.
PEOPLE V WILLIAM JOHNSON, No. 136353. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 279811.
PEOPLE V ELLIS ROBINSON, JR, No. 136359. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 282155.
PEOPLE V ANTHONY CAMPBELL, No. 136369. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 283606.
PEOPLE V FIELDS, No. 136386. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
 ACTIONS ON APPLICATIONS 989
of Appeals No. 282787.
PEOPLE V BOSTON, No. 136388; Court of Appeals No. 282945.
PEOPLE V JERRY COLEMAN, No. 136409; Court of Appeals No. 283882.
PEOPLE V GILBERT, No. 136415; Court of Appeals No. 284076.
PEOPLE V CLIFTON MOFFAT, No. 136418. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 280756.
PEOPLE V DERRICK BOYD, No. 136428. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 283539.
PEOPLE V PADGETT, No. 136465. The denial is without prejudice to the
defendant’s seeking relief, pursuant to MCR 6.500 et seq., as to the new
issues raised in his application supplement. Court of Appeals No. 283499.
PEOPLE V SCOTT, No. 136481. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 279874.
KIMMELMAN V HEATHER DOWNS MANAGEMENT LIMITED, No. 136488; re-
ported below 278 Mich App 569.
PEOPLE V ERVIN SIMS, No. 136492. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 283357.
PEOPLE V COWANS, No. 136499; Court of Appeals No. 283884.
PEOPLE V DOUGLAS CLARK, No. 136531; Court of Appeals No. 284029.
PEOPLE V MARQUIS VANCE, No. 136540; Court of Appeals No. 274579.
PEOPLE V THOMASON, No. 136541; Court of Appeals No. 277934.
PEOPLE V TERRANCE JONES, No. 136560; Court of Appeals No. 274094.
In re ERVIN TESTAMENTARY TRUST (EVANS V BANK ONE TRUST COMPANY,
NA), No. 136564; Court of Appeals No. 270498.
PEOPLE V KELVIN MILLER, No. 136581; Court of Appeals No. 277776.
PEOPLE V HART, No. 136589; Court of Appeals No. 272910.
SHELBY TOWN CENTER I, LLC v GORMAN’S LAKESIDE, LLC, No. 136616;
Court of Appeals No. 273689.
PEOPLE V DEANGELO DIXON, No. 136620; Court of Appeals No. 277301.
PEOPLE V RAGLAND, No. 136624; Court of Appeals No. 284416.
PEOPLE V MORAN-DOPICO, No. 136630; Court of Appeals No. 276455.
990 482 MICHIGAN REPORTS
PEOPLE V HEARD, No. 136639; Court of Appeals No. 280143.
PEOPLE V ROBERT POWELL, III, No. 136641; Court of Appeals No.
274264.
PEOPLE V MONCRIEF, No. 136644; Court of Appeals No. 284073.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Conway, 474 Mich 1140 (2006).
PEOPLE V GARLAND HALL, No. 136658; Court of Appeals No. 281834.
PEOPLE V PATTON, No. 136664; Court of Appeals No. 283835.
PEOPLE V GENE KELLEY, No. 136669; Court of Appeals No. 277020.
PEOPLE V GROSS, No. 136671; Court of Appeals No. 283613.
PEOPLE V LUCKETT, No. 136678; Court of Appeals No. 284521.
PEOPLE V PARRIS, No. 136685; Court of Appeals No. 281950.
PEOPLE V KEITH WATKINS, No. 136689; Court of Appeals No. 277519.
PEOPLE V UPHAUS, No. 136693; reported below: 278 Mich App 174.
PEOPLE V REITMEYER, No. 136699; Court of Appeals No. 276207.
PEOPLE V LYNN JACKSON, No. 136705; Court of Appeals No. 275086.
PEOPLE V BALLENTINE, No. 136706; Court of Appeals No. 275205.
PEOPLE V CHAUDHRY, No. 136708; Court of Appeals No. 284471.
PEOPLE V DANIELS, No. 136709; Court of Appeals No. 272218.
PEOPLE V EDWARD GARLAND, No. 136715; Court of Appeals No. 274058.
LEWIS V DAYTON FREIGHT LINES, No. 136723; Court of Appeals No.
281810.
BEECHLER V BEECHLER, No. 136725; Court of Appeals No. 282623.
PEOPLE V MONTGOMERY, No. 136726; Court of Appeals No. 265463.
PEOPLE V WILKES, No. 136727; Court of Appeals No. 285117.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Conway, 474 Mich 1140 (2006).
PEOPLE V ROEBUCK, No. 136729; Court of Appeals No. 279555.
PEOPLE V VAUGHN, No. 136730; Court of Appeals No. 284470.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Conway, 474 Mich 1140 (2006).
SHULICK V DEPARTMENT OF CORRECTIONS, No. 136732; Court of Appeals
No. 285128.
CHALFIN V JERKINS, No. 136736; Court of Appeals No. 274168.
 ACTIONS ON APPLICATIONS 991
PEOPLE V BENJAMIN WRIGHT, No. 136740; Court of Appeals No. 277215.
PEOPLE V HOLLINS, No. 136744; Court of Appeals No. 272181.
STATE TREASURER V HAYDEN, No. 136747; Court of Appeals No. 277138.
PEOPLE V MCCAULEY, No. 136750; Court of Appeals No. 281517.
PEOPLE V WARREN, No. 136758; Court of Appeals No. 277154.
PEOPLE V ZIGLER, No. 136760; Court of Appeals No. 273405.
PEOPLE V ZUNIGA, No. 136773; Court of Appeals No. 285303.
PEOPLE V GREEN, No. 136774; Court of Appeals No. 274097.
PEOPLE V RANDALL JONES, No. 136789; Court of Appeals No. 278300.
PEOPLE V BOURGEOIS, No. 136793; Court of Appeals No. 278278.
FISHER V ZEBROWSKI, No. 136794; Court of Appeals No. 281823.
PEOPLE V LAMAR WRIGHT, No. 136796; Court of Appeals No. 278190.
PEOPLE V KERSEN, No. 136798; Court of Appeals No. 276766.
PEOPLE V STEWARD, No. 136806; Court of Appeals No. 284962.
PEOPLE V CLIFTON MOFFAT, No. 136810. The defendant’s motion for
relief from judgment is prohibited by MCR 6.502(G). Court of Appeals
No. 285333.
PEOPLE V TRACEY PIERCE, No. 136832; Court of Appeals No. 274869.
PEOPLE V DALTON, No. 136833; Court of Appeals No. 273686.
PEOPLE V GRAYS, No. 136843; Court of Appeals No. 283689.
PEOPLE V REHKOPF, No. 136848; Court of Appeals No. 285310.
PEOPLE V BREWER, No. 136858; Court of Appeals No. 277518.
PEOPLE V WILLIAM MILLER, No. 136869; Court of Appeals No. 277153.
PEOPLE V KITCHENS, No. 136872; Court of Appeals No. 284490.
PEOPLE V MEDLEY, No. 136874; Court of Appeals No. 285226.
PEOPLE V LACKEY, No. 136879; Court of Appeals No. 275085.
PEOPLE V NOVAK, No. 136890; Court of Appeals No. 285085.
PEOPLE V PEGGY WHITE, No. 136901; Court of Appeals No. 284694.
PEOPLE V TAYA PALMER, No. 136909; Court of Appeals No. 285335.
PEOPLE V HUGHES, No. 136915; Court of Appeals No. 284481.
GRIEVANCE ADMINISTRATOR V GEHRKE, No. 136920; ADB No. 05-29-GA.
992 482 MICHIGAN REPORTS
MENTOR TOWNSHIP V HOY, No. 136941; Court of Appeals No. 283469.
PEOPLE V ROE, No. 136994; Court of Appeals No. 281544.

Reconsiderations Denied September 22, 2008:

PEOPLE V GOLDMAN, No. 135102. Leave to appeal denied at 481 Mich

889. Court of Appeals No. 268842.
PEOPLE V VLIET, No. 135500. Leave to appeal denied at 481 Mich
911. Court of Appeals No. 278197.
PEOPLE V CARLESS, No. 135564. Leave to appeal denied at 481 Mich
912. Court of Appeals No. 277913.
PAVLOVSKIS V CITY OF EAST LANSING, No. 135742. Leave to appeal denied
at 481 Mich 926. Court of Appeals No. 275236.
PEOPLE V CARICO, No. 135763. Leave to appeal denied at 481 Mich
913. Court of Appeals No. 277960.
KELLY, J. I would grant reconsideration.
PEOPLE V REDDELL, No. 135869. Leave to appeal denied at 482 Mich
892. Court of Appeals No. 282057.
BOB TURNER, INC V FRISBEE, No. 136027. Leave to appeal denied at 481
Mich 914. Court of Appeals No. 279850.
ADAMS V ORION CHARTER TOWNSHIP, No. 136141. Leave to appeal denied
at 481 Mich 916. Court of Appeals No. 275376.
PEOPLE V BENSON JACKSON, No. 136435. Leave to appeal denied at 482
Mich 897. Court of Appeals No. 276351.
PEOPLE V MONICA WRIGHT, No. 136576. Leave to appeal denied at 482
Mich 858. Court of Appeals No. 281918.

Leave to Appeal Granted September 24, 2008:

ROMAIN V FRANKENMUTH MUTUAL INSURANCE, No. 135546. The motion for

rehearing is considered and it is granted. This Court’s opinion of July 23,
2008, is vacated. The application for leave to appeal the November 21,
2007, order of the Court of Appeals is again considered, and it is granted.
The parties shall include among the issues to be briefed whether the
Legislature’s use of the term “proximate cause” in MCL 600.6304
conflicts with other statutory provisions, whether the Legislature in-
tended to impose a legal duty requirement as a precondition for allocating
fault under MCL 600.2957 and MCL 600.6304, and whether, if MCL
600.6304 merely codified the common-law doctrine of negligence, a
finding of duty is a prerequisite to a finding of fault.
The Clerk of the Court is directed to place this case on the January
2009 session calendar for argument and submission. Appellant’s brief
 ACTIONS ON APPLICATIONS 993
and appendix must be filed no later than November 10, 2008, and
appellees’ brief and appendix, if appellees choose to submit an appendix,
must be filed no later than December 12, 2008.
The Michigan Association for Justice and Michigan Defense Trial
Counsel, Inc., are invited to file briefs amicus curiae, to be filed no later
than December 26, 2008. Other persons or groups interested in the
determination of the issues presented in this case may move the Court for
permission to file briefs amicus curiae, with such briefs to be filed no later
than December 26, 2008.Court of Appeals No. 278591.
SELFLUBE, INC v JJMT, INC, No. 136377. The parties shall include
among the issues to be briefed: (1) whether the circumstances of the
instant case are meaningfully distinguishable from those before this
Court in State Treasurer v Abbott, 468 Mich 143 (2003), and whether, in
light of any such distinguishing circumstances, the permanent injunc-
tion’s requirements—including that any transfer of funds from defen-
dant James DeHaan’s interest in defendant H.S. Die & Engineering,
Inc.’s (HSD) 401(k) plan may be made only to a financial institution
selected by HSD—are prohibited by 29 USC 1056(d)(1), the Employee
Retirement Income Security Act’s (ERISA) anti-alienation provision; (2)
whether DaimlerChrysler Corp v Cox, 447 F3d 967 (CA 6, 2006), should
affect this Court’s analysis of this case; and (3) whether the permanent
injunction is contrary to, and preempted by, 29 USC 1104(a)(1)(D), which
provides that “a fiduciary [of an ERISA-qualified plan] shall discharge its
duties with respect to a plan solely in the interests of the participants and
beneficiaries and . . . in accordance with the documents and instruments
governing the plan.”
The AARP, the Michigan Association for Justice, the Michigan De-
fense Trial Counsel, Inc., the Michigan Chamber of Commerce, and the
American Bar Association Joint Committee on Employee Benefits are
invited to file briefs amicus curiae. Other persons or groups interested in
the determination of the issues presented in this case may move the
Court for permission to file briefs amicus curiae. Court of Appeals No.
261743.
ZAHN V KROGER COMPANY OF MICHIGAN, No. 136382. The parties shall
include among the issues to be briefed: (1) whether a contractual
indemnification clause limiting the indemnitor’s liability to the indem-
nitor’s own negligence, but including delegation of the indemnitee’s
duties, can support an award of indemnification arising out of the
settlement of a negligence claim made against the contractual indemni-
tee; (2) whether MCL 600.2956 and the abolition of joint and several
liability has had any effect on the potential contractual indemnification
liability of employers for injuries sustained by their employees; (3)
whether a settlement of a suit brought by an injured employee against
alleged tortfeasors may legally be viewed as encompassing the damages
attributable to the negligence of the employee’s employer, where the
employer has no tort liability exposure to the injured employee by virtue
of the Worker’s Disability Compensation Act (WDCA) exclusive remedy,
MCL 418.131(1), but has contractually assumed a duty of care owed by an
indemnitee; (4) whether, despite the WDCA’s exclusive remedy provision,
994 482 MICHIGAN REPORTS
the third-party defendant employer in this case voluntarily subjected
itself to liability for the payment to its employee of damages attributable
to its own negligence by entering into the indemnification agreement;
and (5) whether the holding in Gerling Konzern Allegemeine Ver-
sicherungs AG v Regents of the Univ of Michigan, 472 Mich 44 (2005), has
any effect on the appropriate resolution of this case.
The Clerk of the Court is directed to place this case on the January
2009 session calendar for argument and submission. Appellant’s brief
and appendix must be filed no later than November 10, 2008, and
appellees’ brief and appendix, if appellees choose to submit an appendix,
must be filed no later than December 12, 2008.
The Michigan Association for Justice and Michigan Defense Trial
Counsel, Inc., are invited to file briefs amicus curiae, to be filed no later
than December 26, 2008. Other persons or groups interested in the
determination of the issues presented in this case may move the Court for
permission to file briefs amicus curiae, with such briefs to be filed no later
than December 26, 2008. Court of Appeals No. 274994.
PETERSEN V MAGNA CORPORATION, Nos. 136542 and 136543. The appli-
cation for leave to appeal the April 17, 2008, judgment of the Court of
Appeals is considered, and it is granted, limited to the issue of the
proration of attorney fees in MCL 418.315(1). The parties shall include
among the questions to be briefed: (1) what is the meaning of the term
“prorate” in the last sentence of § 315(1), and whether that term
represents an exception to the American Rule regarding attorney fees
(see Haliw v City of Sterling Hts, 471 Mich 700, 707 [2005]); (2) whether
the magistrate’s authority to prorate attorney fees is limited to the
parties to the workers’ compensation action, and, if so, does the penul-
timate sentence of MCL 418.315(1) limit which parties are subject to
proration; and (3) what is the status, if any, of health care providers and
medical insurers in prorating of attorney fees.
The Clerk of the Court is directed to place this case on the January
2009 session calendar for argument and submission. Appellants’ brief
and appendix must be filed no later than November 10, 2008, and
appellee’s brief and appendix, if appellee chooses to submit an appendix,
must be filed no later than December 12, 2008.
The Workers’ Compensation Section of the State Bar of Michigan, the
Michigan Self-Insurers’ Association, and Blue Cross and Blue Shield of
Michigan are invited to file briefs amicus curiae, to be filed no later than
December 26, 2008. Other persons or groups interested in the determi-
nation of the issues presented in this case may move the Court for
permission to file briefs amicus curiae, with such briefs to be filed no later
than December 26, 2008. Court of Appeals Nos. 273293 and 273294.

Summary Dispositions September 24, 2008:

PEOPLE V SAIF, No. 133362. By order of July 18, 2007, the application
for leave to appeal the January 16, 2007, order of the Court of Appeals
was held in abeyance pending the decision in People v Cannon (Docket
No. 131994). On order of the Court, the case having been decided on June
 ACTIONS ON APPLICATIONS 995
4, 2008, 481 Mich 152 (2008), the application is again considered and,
pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we
remand this case to the Court of Appeals for consideration, as on leave
granted, of whether points for predatory conduct may be assessed for
offense variable 10, MCL 777.40(3)(a) (exploitation of vulnerable victim),
where the victim is a police decoy, and, if so, whether a defendant’s intent
to commit other offenses and his entire course of conduct may be
considered as “preoffense” conduct for purposes of assessing points for
predatory conduct under this Court’s decision in People v Cannon, supra.
We do not retain jurisdiction. Court of Appeals No. 273538.
PEOPLE V RUSSELL, No. 133522. By order of July 18, 2007, the applica-
tion for leave to appeal the February 8, 2007, judgment of the Court of
Appeals was held in abeyance pending the decision in People v Cannon,
(Docket No. 131994). On order of the Court, the case having been decided
on June 4, 2008, 481 Mich 152 (2008), the application is again considered
and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we
vacate that part of the Court of Appeals judgment addressing defendant’s
argument regarding whether points for predatory conduct may be
assessed for offense variable 10, MCL 777.40(3)(a) (exploitation of a
vulnerable victim), where the victim is a police decoy, and we remand this
case to the Court of Appeals for reconsideration of that issue in light of
Cannon, supra. In all other respects, leave to appeal is denied, because we
are not persuaded that the remaining questions presented should be
reviewed by this Court. We do not retain jurisdiction. Court of Appeals
No. 264597.
PEOPLE V KADDIS, No. 133793. By order of October 3, 2007, the
application for leave to appeal the March 29, 2007, order of the Court of
Appeals was held in abeyance pending the decision in People v Cannon
(Docket No. 131994). On order of the Court, the case having been decided
on June 4, 2008, 481 Mich 152 (2008), the application is again considered
and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we
remand this case to the Court of Appeals for consideration, as on leave
granted, of whether points for predatory conduct may be assessed for
offense variable 10, MCL 777.40(3)(a) (exploitation of vulnerable victim),
where the victim is a police decoy, and, if so, whether a defendant’s intent
to commit other offenses and his entire course of conduct may be
considered as “preoffense” conduct for purposes of assessing points for
predatory conduct under this Court’s decision in People v Cannon, supra.
In all other respects, leave to appeal is denied, because we are not
persuaded that the remaining question presented should be reviewed by
this Court. We do not retain jurisdiction. Court of Appeals No. 276562.
SAFIEDINE V CITY OF FERNDALE, No. 136406. Pursuant to MCR
7.302(G)(1), in lieu of granting leave to appeal, we affirm the judgment of
the Court of Appeals in part, but vacate, as dicta, the holding that “the
[Civil Rights Act, MCL 37.2101 et seq.,] substantive antidiscrimination
provisions that grant rights and protections apply only to natural, not
juridical, persons.” Safiedine v City of Ferndale, 278 Mich App 476, 481
(2008). The only issue before the court was whether juridical persons
could state a cognizable claim for a violation of MCL 37.2302. The court
996 482 MICHIGAN REPORTS
correctly held that the corporate plaintiffs, as juridical persons, could not
state a claim for a violation of § 302 because that section only protects “an
individual.” However, whether other provisions of the Civil Rights Act
permit such claims was not before the court. Compare MCL 37.2302
(prohibiting conduct against an “individual”) with MCL 37.2502(1)(a)
(prohibiting conduct against “a person”) and MCL 37.2504(2) (same) and
with MCL 37.2103(g) (defining a “person” as a “corporation”). Reported
below: 278 Mich App 476.
CAVANAGH and KELLY, JJ. We would grant leave to appeal.
MERICKA V DEPARTMENT OF COMMUNITY HEALTH, No. 136460. Pursuant to
MCR 7.302(G)(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. 280596.
PEOPLE V MUNLIN, No. 136776. Pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we reverse the judgment of the Court of
Appeals, for the reasons stated in the Court of Appeals dissenting
opinion. In addition, we note that a portion of the complainant’s hospital
records was apparently admitted as the prosecutor’s Exhibit No. 7 and
that defense counsel questioned the nurse witness about the complain-
ant’s clinical depression diagnosis and history of attempted suicide. The
defense made no offer of proof with regard to a different diagnosis. See
MRE 103(a)(2). We remand this case to the Court of Appeals for
consideration of the issues raised by the defendant but not addressed by
that court during its initial review of this case. Court of Appeals No.
272019.
KELLY, J. I would deny leave to appeal.
PEOPLE V COLBERT, No. 136886. In lieu of granting leave to appeal, we
reverse that portion of the Court of Appeals opinion and the accompa-
nying order remanding this case to the Macomb Circuit Court for further
proceedings, for the reasons stated in the Court of Appeals dissenting
opinion. Court of Appeals No. 277621.
KELLY, J. I would deny leave to appeal.

Leave to Appeal Denied September 24, 2008:

PEOPLE V WILBURN, No. 133070; Court of Appeals No. 274442.

PEOPLE V DRUMMOND, No. 136227; Court of Appeals No. 282493.
KRASTES V HASELEY CONSTRUCTION COMPANY, INC, No. 136405; Court of
Appeals No. 276545.
KELLY, J. I would grant leave to appeal.

Summary Dispositions September 26, 2008:

BESSINGER V OUR LADY OF GOOD COUNSEL, No. 128870. By order of

January 31, 2006, this case was remanded to the Workers’ Compensation
 ACTIONS ON APPLICATIONS 997
Appellate Commission for a supplemental opinion. On order of the Court,
the opinion having been received, the application for leave to appeal the
April 29, 2005, order of the Court of Appeals is again considered and,
pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we
vacate the prior decisions of the workers’ compensation tribunals and we
remand this case to the Board of Magistrates for a new hearing and a
decision consistent with this Court’s decision in Stokes v Chrysler LLC,
481 Mich 266 (2008). The plaintiff’s current entitlement to benefits shall
continue until a new decision is issued by the board. We do not retain
jurisdiction. Court of Appeals No. 259974.
WEAVER, J. (dissenting). I dissent from the order vacating the decisions
of the workers’ compensation tribunals and remanding this case to the
Board of Magistrates for a new hearing and decision consistent with this
Court’s decision in Stokes v Chrysler LLC, 481 Mich 266 (2008).
Because I dissented from the majority opinion in Stokes v Chrysler
LLC, I vote to grant leave to appeal in this case to consider whether a
majority of this Court reached the correct decision in Stokes.
KELLY, J. I would deny leave to appeal.
DIOT V DEPARTMENT OF CORRECTIONS, No. 130702. Pursuant to MCR
7.302(G)(1), in lieu of granting leave to appeal, we vacate in part the prior
decisions of the workers’ compensation tribunals and we remand this
case to the Board of Magistrates for a new hearing regarding the
plaintiff’s entitlement to workers’ compensation benefits for the closed
period from July 17, 2002, to March 25, 2003, consistent with this Court’s
decisions in Stokes v Chrysler LLC, 481 Mich 266 (2008), and Robertson
v DaimlerChrysler Corp, 465 Mich 732 (2002). We do not retain jurisdic-
tion. Court of Appeals No. 264781.
CAVANAGH and KELLY, JJ. We would deny leave to appeal.
WEAVER, J. (dissenting). I dissent from the order vacating in part the
decisions of the workers’ compensation tribunals and remanding this
case to the Board of Magistrates for a new hearing regarding the
plaintiff’s entitlement to workers’ compensation benefits for the closed
period from July 17, 2002, to March 25, 2003, consistent with this Court’s
decisions in Stokes v Chrysler LLC, 481 Mich 266 (2008), Robertson v
DaimlerChrysler Corp, 465 Mich 732 (2002), and Gardner v Van Buren
Pub Schools, 445 Mich 23 (1994).
Because I dissented from the majority opinion in Stokes v Chrysler
LLC, I vote to grant leave to appeal in this case to consider whether a
majority of this Court reached the correct decision in Stokes.
ROBERTSON V DAIMLERCHRYSLER CORPORATION, No. 134805. The motion
for leave to file a brief amicus curiae is granted. The application for leave
to appeal the July 26, 2007, judgment of the Court of Appeals is
considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to
appeal, we vacate the Court of Appeals opinion in part with regard to its
application of Sington v Chrysler Corp, 467 Mich 144 (2002), and the
Workers’ Compensation Appellate Commission’s determination that
Sington is inapplicable to this case, and we remand this case to the Board
of Magistrates for further proceedings regarding disability consistent
with the standards set forth in Stokes v Chrysler LLC, 481 Mich 266
998 482 MICHIGAN REPORTS
(2008). In all other respects, leave to appeal is denied, because we are not
persuaded that the remaining questions presented should be reviewed by
this Court. We do not retain jurisdiction. Court of Appeals No. 263067.
CAVANAGH and KELLY, JJ. We would deny leave to appeal.
WEAVER, J. (dissenting). I dissent from the order partially vacating the
Court of Appeals judgment with regard to its application of Sington v
Chrysler Corp, 467 Mich 144 (2002), and the Workers’ Compensation
Appellate Commission’s determination that Sington is inapplicable to
this case, and remanding this case to the magistrate for further proceed-
ings regarding disability consistent with the standards set forth in Stokes
v Chrysler LLC, 481 Mich 266 (2008).
Because I dissented from the majority opinion in Stokes v Chrysler
LLC, I vote to grant leave to appeal in this case to consider whether a
majority of this Court reached the correct decision in Stokes.
BECKES V DETROIT DIESEL CORPORATION, No. 135594. Pursuant to MCR
7.302(G)(1), in lieu of granting leave to appeal, we vacate the Court of
Appeals opinion in part with regard to its application of Sington v
Chrysler Corp, 467 Mich 144 (2002), and the Workers’ Compensation
Appellate Commission’s determination that Sington is inapplicable, and
we remand this case to the Board of Magistrates for further proceedings
regarding disability consistent with the standards set forth in Stokes v
Chrysler LLC, 481 Mich 266 (2008). In all other respects, leave to appeal
is denied, because we are not persuaded that the remaining questions
presented should be reviewed by this Court. We do not retain jurisdiction.
Court of Appeals No. 270791.
MARKMAN, J. (concurring). I concur in this Court’s order vacating the
Court of Appeals opinion in part and remanding to the magistrate in light
of Stokes v Chrysler LLC, 481 Mich 266 (2008). I write separately only to
reaffirm what I stated in Rowland v Washtenaw Co Rd Comm, 477 Mich
197 (2007) (MARKMAN, J., concurring), in response to the incessant
criticisms of the dissenting justices concerning the majority justices’
alleged lack of regard for precedent. See, e.g., Rowland, supra at 257 n 13
(KELLY, J., dissenting). As I observed in Rowland, that the majority
justices have overruled precedent more often than the dissenting justices
is less a function of the former respecting precedent any less than the
latter, than it is a function of the reality that the dissenting justices,
unlike the majority justices, believe that these precedents were rightly
decided. This point is once again reinforced by what the dissenting
justices are doing in the instant case, as well as in Bessinger v Our Lady
of Good Counsel, 482 Mich 996 (2008); Diot v Dep’t of Corrections, 482
Mich 997 (2008); Kohler v Mercy Mem Hosp Corp, 482 Mich 999 (2008);
Malloy v DSI Acoustical Co, 482 Mich 986 (2008); Robertson v Daimler-
Chrysler Corp), 482 Mich 997 (2008); Innes v Allied Automotive Group,
Inc, 482 Mich 970 (2008); and Jones v Comerica, Inc, 482 Mich 890
(2008).
CAVANAGH and KELLY, JJ. We would deny leave to appeal.
WEAVER, J. (dissenting). I dissent from the order partially vacating the
Court of Appeals judgment with regard to Sington v Chrysler Corp, 467
 ACTIONS ON APPLICATIONS 999
Mich 144 (2002), and the Workers’ Compensation Appellate Commis-
sion’s determination that Sington is inapplicable, and remanding this
case to the magistrate for further proceedings regarding disability
consistent with the standards set forth in Stokes v Chrysler LLC, 481
Mich 266 (2008).
Because I dissented from the majority opinion in this Court’s decision
in Stokes v Chrysler LLC, I vote to grant leave to appeal in this case to
consider whether a majority of this Court reached the correct decision in
Stokes.
KOHLER V MERCY MEMORIAL HOSPITAL CORPORATION, No. 135949. Pursu-
ant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we vacate the
prior decisions of the workers’ compensation tribunals and we remand
this case to the Board of Magistrates for a new hearing and a decision
consistent with this Court’s decision in Stokes v Chrysler LLC, 481 Mich
266 (2008). The plaintiff’s current entitlement to benefits shall continue
until a new decision is issued by the board. We do not retain jurisdiction.
Court of Appeals No. 278363.
CAVANAGH and KELLY, JJ. We would deny leave to appeal.
WEAVER, J. (dissenting). I dissent from the order vacating the decisions
of the workers’ compensation tribunals and remanding this case to the
Board of Magistrates for a new hearing and a decision consistent with
this Court’s decision in Stokes v Chrysler LLC, 481 Mich 266 (2008).
Because I dissented from the majority opinion in Stokes v Chrysler
LLC, I vote to grant leave to appeal in this case to consider whether a
majority of this Court reached the correct decision in Stokes.
ACEMCO, INCORPORATED V RYERSON TULL COIL PROCESSING, No. 136203.
Pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we
reverse the judgment of the Court of Appeals. The parties’ Supply
Agreement unambiguously provides a quantity term by stating that the
total purchase volume “will be . . . 33,950,000 pounds . . . plus or minus
20%.” We remand this case to the Muskegon Circuit Court for reinstate-
ment of the July 31, 2006, order denying the defendant’s motion for
summary disposition and for further proceedings consistent with this
decision. Court of Appeals No. 272491.
KELLY, J. (concurring in part and dissenting in part). I agree with the
decision to reverse the judgment of the Court of Appeals and remand this
case to the trial court.
Paragraph one of the parties’ supply agreement provides that “Buyer
agrees to buy from Seller such quantities of [steel products] as the Buyer
may specify in its purchase orders, the estimated volume of which will be
a total of 33,950,000 pounds for all of the products, plus or minus 20%,
over the term of the Agreement.” This language could be interpreted to
mean that the plaintiff is not entitled to buy any steel products whatso-
ever from the defendant. But it is equally possible to interpret this clause
to mean that the plaintiff had an obligation to purchase at least
27,170,000 (33,050,000 minus 20 percent) pounds of steel products over
the course of the contract. Hence, the contract language is ambiguous.
Once a quantity term appears in a writing that is claimed to represent
a contract for the sale of goods, parol evidence may be considered to
1000 482 MICHIGAN REPORTS
resolve ambiguities. In re Frost Estate, 130 Mich App 556, 559 (1983). It
is the jury that must decide what quantity, if any, the supply agreement
specified in this case. Great Northern Packaging, Inc v General Tire &
Rubber Co, 154 Mich App 777, 787 (1987). For that reason, the case
should be remanded to the Muskegon Circuit Court for reinstatement of
the July 31, 2006, order denying defendant’s motion for summary
disposition.
PEOPLE V BAISDEN, No. 136321. Pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we reverse the judgment of the Court of Appeals
in part. We agree with the trial court that MCL 750.520b(1)(f)(iv) is
applicable here and that it is common knowledge that penile penetration
constitutes an unethical and unacceptable method of “medical treat-
ment.” Therefore, we overrule People v Capriccioso, 207 Mich App 100,
105 (1994), and People v Thangavelu, 96 Mich App 442, 450 (1980), to the
extent that they state or hold that medical testimony is required in all
prosecutions under MCL 750.520b(1)(f)(iv). We further overrule those
cases to the extent that they limit the application of the statute to
situations in which the medical examination or treatment is used as a
pretext to secure a patient’s consent to sexual conduct. That limited
interpretation does not comport with the plain language of the statute.
The statute also applies to situations where nonconsensual sexual
conduct is perpetrated during or in the context of medical treatment or
examination. In a separate order, we are vacating the portion of the
judgment of the Court of Appeals in People v Bayer, 279 Mich App 49
(2008), that states that medical testimony is required in all prosecutions
under MCL 750.520b(1)(f)(iv).
The application for leave to appeal as cross-appellant is denied,
because we are not persuaded that the questions presented should now be
reviewed by this Court. We remand this case to the Court of Appeals for
consideration of the defendant’s remaining issues. Court of Appeals No.
269999.
CAVANAGH, J. I would grant leave to appeal.
PEOPLE V BAYER, No. 136820. Pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we vacate the portion of the judgment of the
Court of Appeals that states that medical testimony is required in all
prosecutions under MCL 750.520b(1)(f)(iv). People v Baisden, 482 Mich
1000 (2008). In all other respects, the application is denied, because we
are not persuaded that the questions presented should be reviewed by
this Court. Reported below: 279 Mich App 49.

Leave to Appeal Denied September 26, 2008:

PEOPLE V DOZIER, No. 136204; Court of Appeals No. 275687.

CAVANAGH, J. I would grant leave to appeal.
KELLY, J. (dissenting). I would grant leave to appeal the March 25,
2008, judgment of the Court of Appeals to consider whether defendant
was deprived of a fair trial by the prosecution’s violation of MCR
 ACTIONS ON APPLICATIONS 1001
6.201(B)(3). The prosecution violated the rule by failing to disclose
defendant’s July 26, 2006, statement to the defense until it was used to
impeach him during cross-examination at trial. The record suggests that
the statement was obtained in violation of defendant’s Sixth Amendment
right to counsel because counsel was not present when the statement was
made. Also, there is no evidence of a valid waiver of counsel’s presence,
even though defendant had been arraigned and counsel had been
appointed when the statement was obtained. It therefore appears that
the prosecution’s belated disclosure of the post-arraignment statement
deprived defendant of a fair trial.
In re SMITH (DEPARTMENT OF HUMAN SERVICES V SMITH), No. 137288;
Court of Appeals No. 283285.
In re WADE (DEPARTMENT OF HUMAN SERVICES V WADE), No. 137290; Court
of Appeals No. 283902.

Rehearings Denied September 26, 2008:

BRACKETT V FOCUS HOPE, INC, No. 135375. Opinion reported at 482 Mich
269. Court of Appeals No. 274078.
CAVANAGH, J. (dissenting). I would grant rehearing and, on rehearing,
would reverse this Court’s July 30, 2008, decision because defendant has
failed to offer any evidence that the work rule in question had been
enforced. When seeking to avoid paying workers’ compensation benefits
to an employee because the employee violated a work rule, the employer
has the burden of proving that the work rule was “rigidly enforced.”
Allen v Nat’l Twist Drill & Tool Co, 324 Mich 660, 664 (1949). Although
defendant showed that employees knew that the work rule was consid-
ered mandatory, defendant entirely failed to show any occurrence of
actual enforcement of the rule except against plaintiff. Thus, defendant
has failed to establish a defense under MCL 418.305.
KELLY, J. I join the statement of Justice CAVANAGH.
WEAVER, J. (dissenting). I dissent from the order denying plaintiff’s
motion for rehearing. I would grant rehearing for the reasons stated in
my statement dissenting from the decision of the majority of four (Chief
Justice TAYLOR and Justices CORRIGAN, YOUNG, and MARKMAN) to reverse
the judgment of the Court of Appeals on the ground that the plaintiff’s
refusal to attend a mandatory employee event constituted “intentional
and wilful misconduct” under MCL 418.305, thereby barring her recov-
ery of benefits under the Worker’s Disability Compensation Act, MCL
418.101 et seq.
For my reasons in detail, see my dissenting opinion in Brackett v
Focus: Hope, 482 Mich 269, 286 (2008).
BOODT V BORGESS MEDICAL CENTER, No. 132688. Opinion reported at 481
Mich 558. Reported below: 272 Mich App 621.
MARKMAN, J. (concurring). Although I am heartened by Justice
CAVANAGH’s newly found receptivity to “textualism,” he has, I fear, a
ways to go before he fully gets the hang of it. For starters, a more
1002 482 MICHIGAN REPORTS
seasoned “textualist” would not have overlooked the language of MCL
600.2912b(1), which states that a person “shall not commence an
action alleging medical malpractice against a health professional or
health facility unless the person has given the health professional or
health facility written notice under this section not less than 182 days
before the action is commenced.” (Emphasis added.) Nor would a more
seasoned “textualist” have overlooked the language of MCL
600.2912b(4), which 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.) Thus, a more
seasoned “textualist” likely would have concluded that a plaintiff
cannot commence an action before he or she has filed a notice of intent
that contains “all” the information required under § 2912b(4), and
until this is done, he or she cannot file a complaint tolling the period
of limitations. Moreover, such a “textualist” would also have recog-
nized that more specific statutory provisions control over more
general statutory provisions, and thus the specific requirements of §
2912b(1) regarding “commenc[ing] an action alleging medical mal-
practice” prevail over the general requirements of MCL 600.1901
regarding the commencing of civil actions. Such an analysis admit-
tedly would be partially premised upon the plain language of the law,
partially upon logic, and partially upon rules of interpretation dating
back several centuries, but, of course, no one who is not intent on
caricaturing “textualism” would doubt that all three of these consid-
erations are among the tools of a “textualist.”1 I fully concur in this
Court’s order.
CAVANAGH, J. (dissenting). This Court’s opinion of July 2, 2008, should
be reconsidered and vacated. Plaintiff argued that her notice was not
deficient, but, even if it was, this case should be dismissed without
prejudice. Plaintiff further argued that a refiled action would be timely
because the limitations period would have been tolled during the pen-
dency of the case. I agree.
The majority stated that “[t]his Court has already held that a
defective notice of intent does not toll the period of limitations,” citing
Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 64 (2002) (Roberts I). Boodt
v Borgess Med Ctr, 481 Mich 558, 561 (2008). But Roberts I is not
applicable here. The applicable tolling statute in that case was MCL
600.5856(d), which stated, at the time, that presuit notice would give rise
to tolling if that notice “is given in compliance with [MCL 600.2912b].”
The statute in this case is § 5856(a), which, at the time this case was filed,
did not expressly require compliance with § 2912b. Rather, the statute
simply 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.” MCL 600.5856(a). The language of § 5856(a) is

1
If by reference to a “Pavlovian concurrence” my dissenting colleague
intends to characterize this statement as a predictable and expected
response to a judicial display of disregard for the language of a statute,
then I suppose that his is an accurate characterization.
 ACTIONS ON APPLICATIONS 1003
unequivocal: the period of limitations is tolled when a complaint is filed
and service is effectuated. Section 5856(a) says nothing about compliance
with the notice-of-intent statute.
Justice MARKMAN’s Pavlovian concurrence misses the point. The issue
here is tolling. The most specific statute on this issue is § 5856, the tolling
statute. The applicable section of the statute, § 5856(a), does not require
compliance with § 2912b. Former § 5856(d), the statute at issue in
Roberts I, did require compliance with § 2912b, but § 5856(d) applies “[i]f,
during the applicable notice period under section 2912b, a claim would be
barred by the statute of limitations or repose . . . .” That is not the case
here. Plaintiff timely filed her notice of intent and her complaint.2 Thus,
§ 5856(a) applies and the period of limitations for plaintiff’s action was
tolled when she filed her complaint and a copy of the summons and
complaint was served on defendant.
Call me a textualist if you will, but I believe this Court should hold to
its policy of strict application of statutes. This Court’s ruling in this case
violates that policy by adding words to the statute requiring compliance
with § 2912b. Section 2912b is not a tolling statute. It says nothing about
whether a period of limitations has or has not been tolled. To suggest that
it does adds language to the statute. Further, the majority in this case
determined that this case was never “commenced” because plaintiff
failed to comply with § 2912b. But § 2912b does not dictate when an
action is commenced. The statute that controls “commencement” is MCL
600.1901, which states that “[a] civil action is commenced by filing a
complaint with the court.”
This Court’s ruling is also contrary to its reasoning in Costa v
Community Emergency Med Services, Inc, 475 Mich 403 (2006). In that
case, the defendants were governmental agencies that failed to file an
affidavit of meritorious defense, as required by MCL 600.2912e(1) (which
states that a defendant “shall” file such an affidavit). A majority of this
Court observed that MCL 691.1407(2) states that a governmental em-
ployee is immune from tort liability. The majority concluded that §
1407(2) and MCL 600.2912e(1) were “equally mandatory,” but MCL
691.1407(2) trumped on the basis of the verb “to be”—“a governmental
employee is immune.” Likewise, in this case, MCL 600.1901 states that a
civil action is commenced when the complaint is filed and served on the
defendant. Section 5856(a) states that periods of limitations are tolled
under circumstances such as those in this case. This Court should act
consistently with the reasoning of Costa and hold that the limitations
period in this case was tolled when plaintiff filed her complaint and
served summons on defendant.
Finally, it is clear that the notice-of-intent statute was enacted to
eliminate litigation by encouraging settlement in the presuit period. This
Court’s ruling will work contrary to that intent; defendants will have no
incentive to negotiate before litigation because there is always the
prospect that plaintiffs’ cases will be precluded by a technical error that
cannot be corrected because of the running of the period of limitations. I

2
This is the critical factual distinction between this case and Roberts I.
1004 482 MICHIGAN REPORTS
see no logic in the majority’s result that ignores the plain language MCL
600.5856(a), defeats the purpose of MCL 600.2912b, and forecloses
meritorious cases without remedy on the basis of a statute that is clearly
intended to apply only at the presuit stage.
WEAVER, J. I would grant rehearing.
KELLY, J. I would grant rehearing and would reverse this Court’s
opinion of July 2, 2008.
DAIMLERCHRYSLER CORPORATION V STATE TAX COMMISSION, No. 133394.
Opinion reported at 482 Mich 220. Court of Appeals No. 267565.
WEAVER, CORRIGAN, and MARKMAN, JJ. We would grant rehearing and
affirm the Court of Appeals.
FORD MOTOR COMPANY V STATE TAX COMMISSION, No. 133396. Opinion
reported at 482 Mich 220. Court of Appeals No. 262500.
WEAVER, CORRIGAN, and MARKMAN, JJ. We would grant rehearing and
affirm the Court of Appeals.

Appeals Dismissed September 26, 2008:

VILLAGE OF NORTHPORT V SCOTT, No. 136451. 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. 282474.
VILLAGE OF NORTHPORT V BUSBY, VILLAGE OF NORTHPORT V CANN, VILLAGE OF
NORTHPORT V DAVIS, VILLAGE OF NORTHPORT V FUNK, VILLAGE OF NORTHPORT V
TAYLOR, and VILLAGE OF NORTHPORT V WEBER, Nos. 136453, 136454, 136455,
136456, 136457, and 136458. 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
Nos. 282475, 282476, 282477, 282478, 282479, and 282480.

Leave to Appeal Granted October 1, 2008:

POTTER V MCLEARY, No. 136336. On order of the Court, the application

for leave to appeal the March 20, 2008, judgment of the Court of Appeals
is 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).
The Michigan Association for Justice, Michigan Defense Trial Coun-
sel, Inc., Michigan Health and Hospital Association, and Citizens for
Better Care are invited to file briefs amicus curiae. Other persons or
groups interested in the determination of the issue presented in this case
may move the Court for permission to file briefs amicus curiae. Reported
below: 278 Mich App 279.
 ACTIONS ON APPLICATIONS 1005
Summary Dispositions October 1, 2008:

LIGONS V CRITTENTON HOSPITAL, No. 135903. Pursuant to MCR

7.302(G)(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. 278622.
CAVANAGH and KELLY, JJ. We would deny leave to appeal.
WEAVER, J. I would deny leave to appeal because I am not persuaded
that the questions presented should be reviewed by this Court.
LOFTON V AUTOZONE, INC, No. 136029. Pursuant to MCR 7.302(G)(1), in
lieu of granting leave to appeal, we vacate the decision of the Workers’
Compensation Appellate Commission mailed April 4, 2007, and we
remand this case to the Board of Magistrates for reconsideration in light
of Stokes v Chrysler LLC, 481 Mich 266 (2008). If it is found that the
plaintiff is disabled under MCL 418.301(4), but that the limitation of
wage-earning capacity is only partial, the magistrate shall compute
wage-loss benefits under MCL 418.361(1) on the basis of what the
plaintiff remains capable of earning. The magistrate assigned to this case
may take additional proofs upon request of either party. We direct the
magistrate to issue a decision and file that decision with the Clerk of this
Court within 126 days of the date of this order. We retain jurisdiction.
Court of Appeals No. 277845.
CAVANAGH, J. I would deny leave to appeal.
WEAVER, J. (dissenting). I dissent from the order vacating the decision
of the Workers’ Compensation Appellate Commission and remanding this
case to the Board of Magistrates for reconsideration in light of Stokes v
Chrysler LLC, 481 Mich 266 (2008).
Because I dissented from the majority opinion in Stokes v Chrysler
LLC, 481 Mich at 320 (WEAVER, J., dissenting), I vote to grant leave to
appeal in this case to consider whether a majority of this Court reached
the correct decision in Stokes.
KELLY, J. I would grant leave to appeal to reconsider Stokes v Chrysler
LLC, 481 Mich 266 (2008).
GATES V USA JET AIRLINES, INC, No. 136097. Pursuant to MCR
7.302(G)(1), in lieu of granting leave to appeal, we reverse the judgment
of the Court of Appeals and we vacate the arbitration award in this case,
for the reasons stated in the Court of Appeals dissenting opinion. Hewitt
v Village of Reed City, 124 Mich 6, 8-9 (1900). We remand this case to the
Wayne Circuit Court for further proceedings consistent with this order.
Court of Appeals No. 272860.
CORRIGAN, J. I would refer attorney Paul J. Dillon to the Attorney
Grievance Commission. Mr. Dillon’s submission to the arbitration panel
of an ex parte supplemental brief in contravention of the rules governing
the arbitration may have violated MRPC 3.4(c) (knowingly disobeying an
obligation under the rules of a tribunal) and 3.5(b) (prohibiting ex parte
communication with a judge, juror, prospective juror, or other official
regarding a pending matter).
1006 482 MICHIGAN REPORTS
KNIGHT ENTERPRISES, INC V FAIRLANE CAR WASH, INC, No. 136787.
Pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we
reverse in part the April 8, 2008, judgment of the Court of Appeals.
Paragraph 8 of the Credit Card Participating Agreement limits defen-
dants’ liability to “service charges assessed by CITGO/KNIGHT on credit
card sales tickets [defendants] submit . . . .” No provision imposes
liability for credit card sales tickets submitted by other parties. The trial
court and the Court of Appeals interpreted paragraph 12 of that
agreement, which provides that “[defendants] will be billed on a monthly
basis per month for . . . all credit card fees,” as requiring that defendants
pay service charges regardless of whether they were for credit card sales
tickets that defendants submitted. Thus, neither court considered
whether the credit card fees at issue were comprised of service charges
only for credit card sales tickets that defendants submitted. The lower
courts’ interpretation of paragraph 12 renders paragraph 8’s limitation
surplusage or nugatory. “[C]ourts must . . . give effect to every word,
phrase, and clause in a contract and avoid an interpretation that would
render any part of the contract surplusage or nugatory.” Klapp v United
Ins Group Agency, Inc, 468 Mich 459, 468 (2003) (citations omitted).
Interpreting paragraph 12 to provide that defendants will be billed
monthly only for service charges for which they are liable under para-
graph 8 gives effect to both paragraphs 8 and 12. We remand this case to
the Wayne Circuit Court for further proceedings to determine what
portion of the credit card fees at issue constituted service charges on
credit card sales tickets that defendants submitted. On the basis of that
determination, the circuit court shall reconsider plaintiff’s request for
case evaluation sanctions. In all other respects, leave to appeal is denied,
because we are not persuaded that the remaining questions presented
should be reviewed by this Court. Court of Appeals No. 276838.
CAVANAGH, J., did not participate because of a familial relationship
with counsel of record.

Leave to Appeal Denied October 1, 2008:

KWASNIEWSKI V HARRINGTON, No. 135240; Court of Appeals No. 268774.

CAVANAGH, WEAVER, and KELLY, JJ. We would reverse the judgment of
the Court of Appeals and remand this case to the trial court for further
proceedings.
PEOPLE V LYNCH, No. 135914. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 283180.
PEOPLE V COLLINS, No. 136123. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 279645.
KELLY, J. I would grant leave to appeal.
PEOPLE V TIMOTHY HOLLAND, No. 136263; Court of Appeals No. 281978.
PEOPLE V DONALD, No. 136575; Court of Appeals No. 275688.
 ACTIONS ON APPLICATIONS 1007
PEOPLE V SPRAGUE, No. 136647; Court of Appeals No. 278007.
KELLY, J. I would grant leave to appeal.
PEOPLE V HOLM, No. 136754; Court of Appeals No. 279406.

Leave to Appeal Granted October 3, 2008:

PEOPLE V JEREMY FISHER, No. 136591. On order of the Court, the

application for leave to appeal the March 25, 2008, judgment of the Court
of Appeals is considered, and it is granted. In addition to the issues
presented in the application for leave to appeal concerning whether the
emergency aid doctrine justified the warrantless entry into the defen-
dant’s home, and whether evidence of an assault against the police may
be suppressed irrespective of the validity of a warrantless entry into a
house, the parties shall address the standard of review to be applied for
appellate review of a trial court’s decision concerning an alleged Fourth
Amendment violation for entering a house without a warrant, consider-
ing United States v Gambino-Zavala, 539 F3d 1221, 1225 (CA 10, 2008),
quoting United States v Apperson, 441 F3d 1162, 1184 (CA 10, 2006), and
Ornelas v United States, 517 US 690 (1996).
The Prosecuting Attorneys Association of Michigan and the Criminal
Defense Attorneys of Michigan are invited to file briefs amicus curiae.
Other persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae. Court of Appeals No. 276439.

Summary Dispositions October 3, 2008:

YOUNG V NANDI, No. 134799. Pursuant to MCR 7.302(G)(1), in lieu of

granting leave to appeal, we vacate only that part of the Court of Appeals
judgment that held that the trial court properly denied defendants’
request for a hearing concerning attorney fees in plaintiff’s favor as case
evaluation sanctions under MCR 2.403(O)(6)(b). Under the facts of this
case, such a hearing was necessary. We remand this case to the Oakland
Circuit Court for a hearing on the subject of a reasonable attorney fee,
consistent with Smith v Khouri, 481 Mich 519 (2008). In all other
respects, the application for leave to appeal as cross-appellants is denied,
because we are not persuaded that the remaining questions presented
should be reviewed by this Court. We do not retain jurisdiction. Reported
below: 276 Mich App 67.
CORRIGAN, J. (concurring). I concur in all respects in the Court’s order
denying leave to appeal and remanding the case for an evidentiary
hearing on the attorney fee award. I specifically concur in the denial of
plaintiff’s application for leave to appeal because the Court of Appeals
correctly held that the higher noneconomic damages cap found in MCL
600.1483(1) does not apply to plaintiff’s wrongful death action. I disagree,
however, with the basis for the Court of Appeals holding. The Court of
Appeals held that while the higher noneconomic damages cap may apply
1008 482 MICHIGAN REPORTS
to wrongful death actions, in this case plaintiff failed to satisfy the
statutory requirements for application of the higher cap.
I continue to adhere to the principles cited in my partial dissenting
opinion in Shinholster v Annapolis Hosp, 471 Mich 540, 582-597 (2004),
that the plain language of MCL 600.1483(1) prohibits the application of
the higher noneconomic damages cap to all wrongful death actions.
CAVANAGH, WEAVER, and KELLY, JJ. We would grant leave to appeal.
MOSBY V HART & COOLEY MANUFACTURING, INC, No. 134845. Pursuant to
MCR 7.302(G)(1), in lieu of granting leave to appeal, we vacate that
portion of the decision of the Workers’ Compensation Appellate Commis-
sion (WCAC) mailed January 24, 2007, which determined that the
plaintiff has established a compensable disability within the meaning of
Sington v Chrysler Corp, 467 Mich 144 (2002), and we remand this case
to the WCAC for reconsideration in light of Stokes v Chrysler LLC, 481
Mich 266 (2008). The WCAC may remand this case to the Board of
Magistrates for the taking of additional proofs and for further findings
upon the request of a party. In all other respects, leave to appeal is denied,
because we are not persuaded that the remaining question presented
should be reviewed by this Court. We do not retain jurisdiction. Court of
Appeals No. 276313.
CAVANAGH, J. I would deny leave to appeal.
WEAVER, J. (dissenting). I dissent from the order remanding this case
to the Workers’ Compensation Appellate Commission for reconsideration
in light of Stokes v Chrysler LLC, 481 Mich 266 (2008).
Because I dissented from the majority opinion in Stokes, I would grant
leave to appeal in this case to consider whether the Stokes majority
reached the correct decision.
KELLY, J. I join the statement of Justice WEAVER.
MARTIN V EATON CORPORATION, No. 134950. Pursuant to MCR
7.302(G)(1), in lieu of granting leave to appeal, we remand this case to the
Court of Appeals for consideration as on leave granted in light of Stokes
v Chrysler LLC, 481 Mich 266 (2008). Court of Appeals No. 276134.
CAVANAGH, J. I would deny leave to appeal.
WEAVER, J. (dissenting). I dissent from the order remanding this case
to the Court of Appeals as on leave granted for reconsideration in light of
Stokes v Chrysler LLC, 481 Mich 266 (2008).
Because I dissented from the majority opinion in Stokes, I would grant
leave to appeal in this case to consider whether the Stokes majority
reached the correct decision.
KELLY, J. I join the statement of Justice WEAVER.
KENNEY V ALTICOR, INCORPORATED, No. 135305. Pursuant to MCR
7.302(G)(1), in lieu of granting leave to appeal, we remand this case to the
Court of Appeals for consideration as on leave granted in light of Stokes
v Chrysler LLC, 481 Mich 266 (2008). Court of Appeals No. 278090.
CAVANAGH, J. I would deny leave to appeal.
 ACTIONS ON APPLICATIONS 1009
WEAVER, J. (dissenting). I dissent from the order remanding this case
to the Court of Appeals as on leave granted for reconsideration in light of
Stokes v Chrysler LLC, 481 Mich 266 (2008).
Because I dissented from the majority opinion in Stokes, I would grant
leave to appeal in this case to consider whether the Stokes majority
reached the correct decision.
KELLY, J. I join the statement of Justice WEAVER.
KRUSE V CORT FURNITURE RENTAL, No. 136471. Pursuant to MCR
7.302(G)(1), in lieu of granting leave to appeal, we remand this case to the
Workers’ Compensation Appellate Commission (WCAC) for reconsidera-
tion in light of Stokes v Chrysler LLC, 481 Mich 266 (2008). The WCAC
may remand this case to the Board of Magistrates for the taking of
additional proofs and for further findings upon the request of a party. We
do not retain jurisdiction. Court of Appeals No. 281910.
CAVANAGH, J. I would deny leave to appeal.
WEAVER, J. (dissenting). I dissent from the order remanding this case
to the Workers’ Compensation Appellate Commission for reconsideration
in light of Stokes v Chrysler LLC, 481 Mich 266 (2008).
Because I dissented from the majority opinion in Stokes, I would grant
leave to appeal in this case to consider whether the Stokes majority
reached the correct decision.
KELLY, J. I join the statement of Justice WEAVER.
DEPARTMENT OF ENVIRONMENTAL QUALITY V REXAIR, INC, No. 136700.
Pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we
reverse the judgment of the Court of Appeals and we reinstate the August
7, 2006, order of the Ingham Circuit Court. The Court of Appeals erred by
holding that the circuit court lacked the inherent authority, as well as the
authority under the consent judgment, the Michigan Rules of Court, and
MCL 600.611, to dismiss with prejudice the dispute resolution proceeding
initiated by plaintiff and to award defendant costs and attorney fees. The
Court of Appeals further erred by disregarding the undisputed facts in
the record that supported the circuit court’s findings and by failing to
accord the proper deference to the circuit court’s determination that the
plaintiff had invoked the circuit court’s jurisdiction for an improper
purpose and abused the dispute resolution process. Maldonado v Ford
Motor Co, 476 Mich 372, 376 (2006). Court of Appeals No. 272652.
CAVANAGH and KELLY, JJ. We concur in the result.
WEAVER, J. (concurring in the result only). I concur only with the
decision to reverse the judgment of the Court of Appeals and reinstate the
August 7, 2006, order of the Ingham Circuit Court.
In Maldonado v Ford Motor Co, 476 Mich 372, 426-435 (WEAVER, J.,
dissenting,), I disagreed with the majority opinion for the reasons stated
in my dissent. Therefore, I find the citation to Maldonado in this order to
be unnecessary.

Leave to Appeal Denied October 3, 2008:

HANSEN V DEPARTMENT OF COMMUNITY HEALTH, No. 136283; Court of

Appeals No. 278074.
1010 482 MICHIGAN REPORTS
CAVANAGH and KELLY, JJ. We would grant leave to appeal.
MARKMAN, J. (dissenting). I would reverse in part the judgment of the
Court of Appeals and remand this case to the trial court for an
evidentiary hearing concerning the appropriate amount of sanctions with
respect to Counts I and II only. In my judgment, sanctions for Count III
were inappropriate because that count was not barred by the statute of
limitations and plaintiff’s legal position on this count was not “devoid of
arguable legal merit.” MCL 600.2591(3)(a)(iii).
YOUNG, J. I join the statement of Justice MARKMAN.
PEOPLE V RUSSELL WILLIS, No. 136380; Court of Appeals No. 283801.
CORRIGAN, J., (dissenting). I would remand this case to the Court of
Appeals for consideration as on leave granted for a more thorough
analysis. The panel disposed of the case in an order that affords no
guidance to trial courts concerning the panel’s reasoning. The order,
providing no reasoning whatsoever, merely remands the case to the trial
court “to afford defendant an opportunity to withdraw his plea or for the
trial court to impose a two-year minimum sentence in accordance with
People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).” Unpublished
amended order of the Court of Appeals, entered May 1, 2008 (Docket No.
283801).
The defendant pleaded no contest to the charges against him and
received a sentence evaluation from the trial judge as provided in Cobbs.
The defendant failed to appear for the subsequent sentencing hearing,
however, and was later arrested pursuant to a bench warrant. Upon
finally sentencing him, the court declined to give him the benefit of the
Cobbs evaluation and imposed a higher minimum sentence within the
minimum guidelines range prescribed by statute. The court denied the
defendant’s request to withdraw his plea, concluding that withdrawal
was not warranted in light of the defendant’s misconduct. In rendering
its decision, the trial court specifically relied on People v Garvin, 159 Mich
App 38 (1987). The Court of Appeals reversed, presumably citing Cobbs
for the general proposition that a defendant who pleads guilty or no
contest in reliance on a sentence evaluation has an “absolute right” to
withdraw the plea if the judge later concludes that the sentence should
exceed the preliminary evaluation. See Cobbs, supra at 283.
But the trial court here reasonably posited that a defendant forfeits
his right to withdraw if he absconds from sentencing. The panel did not
discuss the precedent cited by the trial judge and the prosecutor, in which
appellate courts declined to permit plea withdrawal under similar factual
circumstances. See People v Kean, 204 Mich App 533, 536 (1994) (By
walking away from a treatment program specified in the plea deal and
then absconding, the “defendant had violated the plea agreement and,
consequently, . . . he was not entitled to the benefit of the bargain.”);
Garvin, supra at 43 (the defendant “implicitly waived” the right to
withdraw his plea by escaping from custody and failing to appear for
sentencing); People v Acosta, 143 Mich App 95, 99 (1985) (A defendant
may not benefit from a plea bargain “irrespective of [his] bad faith in
failing to comply with the bargain by failing to appear.”). Although these
 ACTIONS ON APPLICATIONS 1011
cases did not involve Cobbs pleas, the prosecutor reasonably argues that
their rationale extends to cases involving Cobbs pleas.
Further, allowing withdrawal under these circumstances permits a
defendant to manipulate the proceedings and benefit from his miscon-
duct. Indeed, it may encourage misconduct. A defendant who becomes
dissatisfied with a Cobbs evaluation may abscond in order to induce the
judge to impose a higher sentence and then take advantage of the right to
withdraw. Moreover, under the Court of Appeals ruling in this case, a
defendant may apparently abscond from custody for as long as he wishes
but then still benefit from the plea deal. This Court explicitly prohibits a
defendant from “assert[ing] ‘rights’ that came into existence because of
his own misconduct.” People v Washington, 461 Mich 294, 299-300 (1999)
(A defendant could not claim violation of his Double Jeopardy rights
because “[i]f he had not breached his agreement to return to court for
sentencing, there would have been no possibility of a violation . . . .”).
PEOPLE V JERRELL FOX, No. 136517; Court of Appeals No. 277140.
WEAVER, J. I would grant leave to appeal.
CORRIGAN, J. (dissenting). I would grant leave to appeal. I question the
Court of Appeals determination that the trial court’s error in convicting
defendant of the cognate lesser offense of felonious assault, MCL 750.82,
requires vacation of his convictions and sentences. The prosecutor argues
convincingly that defense counsel at trial acquiesced in the consideration
of the cognate offense, thereby extinguishing the error. See People v
Carter, 462 Mich 206, 215 (2000).
Defendant was charged with eight counts of assault with intent to
commit murder, MCL 750.83. At defendant’s bench trial, the prosecutor
conceded that the evidence did not show an intent to commit murder and
asked the court to consider the lesser offenses of assault with intent to do
great bodily harm, MCL 750.84, and felonious assault. Defense counsel
argued that the evidence did not show an intent to commit murder or to
do great bodily harm and then stated, “I don’t really want to concede on
the lesser of Felonious Assault. However, I think certainly there was no
intent to do any great bodily harm to anyone by Mr. Fox.” Defense
counsel then concluded, “I think that this is not a case of Assault With
Intent to do—to Commit Murder or to do Great Bodily Harm. I would ask
the court to find the appropriate sentence—appropriate verdict.”
The trial court found defendant guilty of three counts of felonious
assault. The Court of Appeals vacated the convictions on the ground that
felonious assault is a cognate lesser offense of assault with intent to
commit murder. See People v Cornell, 466 Mich 335, 357 (2002) (holding
that MCL 768.32[1] does not permit consideration of cognate lesser
offenses), and People v Otterbridge, 477 Mich 875 (2006) (holding that
felonious assault is a cognate lesser offense of assault with intent to
commit murder).
Nevertheless, I agree with the prosecutor that defense counsel’s
comments reflect his acquiescence in the consideration of felonious
assault. Counsel’s assertion that he did not “really want to concede on
the lesser of Felonious Assault” was a declination to concede defendant’s
guilt of that offense. Counsel left open the possibility that the court could
1012 482 MICHIGAN REPORTS
consider a felonious assault conviction by stating, “I think that this is
not a case of Assault with Intent to do—to Commit Murder or to do
Great Bodily Harm. I would ask the court to find the appropriate
sentence—appropriate verdict.” By acquiescing in the consideration of
felonious assault, defendant waived this issue, thereby extinguishing
the error. See Carter, supra (explaining that waiver is the intentional
relinquishment or abandonment of a known right, and that it extin-
guishes any error).
Even if the error was not waived, defendant failed to object to the
consideration of felonious assault. In light of this forfeiture, defendant
must establish a plain error that affected the outcome of the lower
court proceedings. He must show that he is actually innocent or that
the error seriously affected the fairness, integrity, or public reputation
of the proceedings. People v Carines, 460 Mich 750, 763-764 (1999).
Defendant has not met these requirements. “Neither defendant nor
the majority has offered any explanation regarding how the defense at
trial would have been any different if he had been formally charged
with felonious assault.” Otterbridge, supra at 876 (CORRIGAN, J.,
dissenting).
For these reasons, I would grant leave to appeal to consider more fully
the prosecutor’s arguments in this case.
SINICROPI V MUZUREK, Nos. 137061 and 137077; Reported below: 279
Mich App 455.
CAVANAGH, J. I would grant leave to appeal to address the constitu-
tional due process issues related to the rights of the biological father.

Superintending Control Denied October 3, 2008:

BROOKS V COURT OF APPEALS, No. 137155.

Reconsideration Denied October 8, 2008:

NEAL V DEPARTMENT OF CORRECTIONS, No. 136925. Leave to appeal

denied at 482 Mich 984. Court of Appeals No. 285232.
TAYLOR, C.J. did not participate.

Leave to Appeal Denied October 10, 2008:

In re MCCLAIN (CATHOLIC SOCIAL SERVICES OF OAKLAND COUNTY v

MCCLAIN-ALLEN), No. 137297; Court of Appeals No. 283151.

Summary Dispositions October 15, 2008:

JOYCE V JOYCE, No. 136786. Pursuant to MCR 7.302(G)(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. 281175.
 ACTIONS ON APPLICATIONS 1013
PEOPLE V WELLMAN, No. 136834. Pursuant to MCR 7.302(G)(1), in lieu
of granting leave to appeal, we remand this case to the Clinton Circuit
Court for correction of the presentence investigation report as agreed to
by the trial court. The circuit court shall forward a copy of the amended
report to the Department of Corrections, MCL 771.14(6) and MCR
6.425(E)(2). In all other respects, leave to appeal is denied, because we
are not persuaded that the remaining questions presented should be
reviewed by this Court. Court of Appeals No. 285166.
In re ROBBINS (DEPARTMENT OF HUMAN SERVICES V SANDERS), No. 137249.
Pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we
vacate the May 1 and August 13, 2008, orders of the Court of Appeals and
we remand this case to the Court of Appeals for reinstatement of the
respondent-mother’s claim of appeal. The record does not demonstrate
that the family court substantially complied with the court rules govern-
ing termination of the respondent-mother’s parental rights and notice of
appellate rights. Court of Appeals No. 284790.

Leave to Appeal Denied October 15, 2008:

STANKE V STANKE, No. 136077; Court of Appeals No. 263446.

PEOPLE V NULL, No. 136469; Court of Appeals No. 271597.
PEOPLE V ZAKER, No. 136567; Court of Appeals No. 283719.
PEOPLE V BRIEDENSTEIN, No. 136665; Court of Appeals No. 281647.
KELLY, J. I would grant leave to appeal.

Order Granting Oral Argument in Case Pending on Application for Leave

to Appeal October 16, 2008:

CHAMBERS V WAYNE COUNTY AIRPORT AUTHORITY, No. 136900. We direct

the clerk to schedule oral argument on December 3, 2008, at 9:30 a.m., on
whether to grant the application or take other peremptory action. MCR
7.302(G)(1). At oral argument, the parties shall address: (1) whether the
plaintiff satisfied the notice requirement of MCL 691.1406, and (2)
whether constructive notice may be deemed sufficient, given the statute’s
lack of a definition of “notice.” Meredith v City of Melvindale, 381 Mich
572 (1969); Brown v City of Owosso, 126 Mich 91 (1901). The parties may
file supplemental briefs no later than November 21, 2008. They should
not submit mere restatements of their application papers.
The Michigan Association For Justice and Michigan Defense Trial
Counsel, Inc., are invited to file briefs amicus curiae no later than
November 21, 2008. Other persons or groups interested in the determi-
nation of the issues presented in this case may move the Court for
permission to file briefs amicus curiae, to be filed no later than November
21, 2008. Court of Appeals No. 277900.
1014 482 MICHIGAN REPORTS
Orders Granting Oral Argument in Cases Pending on Application for
Leave to Appeal October 17, 2008:

BUSH V SHABAHANG, Nos. 136617 and 136983. We direct the clerk to

schedule oral argument on November 19, 2008, at 9:30 a.m., on whether
to grant the application or take other peremptory action. MCR
7.302(G)(1). At oral argument, the parties shall address whether that
portion of the Court of Appeals judgment holding that the direct liability
claims against defendants West Michigan Cardiovascular Surgeons and
Spectrum Health Butterworth Campus should be dismissed without
prejudice is inconsistent with this Court’s decision in Boodt v Borgess
Med Ctr, 481 Mich 558, 563-564 (2008).
We further order that this case be argued and submitted to the Court
together with the cases of Bush v Shabahang, Docket Nos. 136653 and
136983. The parties may file supplemental briefs no later than Novem-
ber 12, 2008. They should not submit mere restatements of their
application papers. Reported below: 278 Mich App 703.
BUSH V SHABAHANG, No. 136653. We direct the clerk to schedule oral
argument on November 19, 2008, at 9:30 a.m., on whether to grant the
application or take other peremptory action. MCR 7.302(G)(1). At oral
argument, the parties shall address whether the complaint was filed
prematurely.
We further order that this case be argued and submitted to the Court
together with the cases of Bush v Shabahang, Docket Nos. 136617 and
136983. The parties may file supplemental briefs no later than Novem-
ber 12, 2008. They should not submit mere restatements of their
application papers. Reported below: 278 Mich App 703.
SAZIMA V SHEPHERD BAR & RESTAURANT, No. 136940. We direct the clerk
to schedule oral argument on November 19, 2008, at 9:30 a.m., on
whether to grant the application or take other peremptory action. MCR
7.302(G)(1). At oral argument, the parties shall address whether the
decision of the Workers’ Compensation Appellate Commission is contrary
to Simkins v Gen Motors Corp (After Remand), 453 Mich 703, 723 (1996).
The parties may file supplemental briefs no later than November 12,
2008, on that issue. They should not submit mere restatements of their
application papers. Court of Appeals No. 281855.

Leave to Appeal Granted October 17, 2008:

MCNEIL V CHARLEVOIX COUNTY, No. 134437. The application for leave to

appeal the June 5, 2007, judgment of the Court of Appeals is again
considered, and it is dismissed as to those plaintiffs who lack standing
(Franklin E. Fisher, Kent A. McNeil, and Roger Griffin). The application
is granted as to the remaining parties. The parties shall consider: (1)
whether the local health department or the county board of commission-
ers, the entity vested with final authorization 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
 ACTIONS ON APPLICATIONS 1015
the right or private cause of action created by Clean Indoor Air Regula-
tion § 1001 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 Michi-
gan’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 (2002).
The Clerk of the Court is directed to place this case on the January
2009 session calendar for argument and submission. Appellants’ brief
and appendix must be filed no later than November 24, 2008, and
appellees’ brief and appendix, if appellees choose to submit an appendix,
must be filed no later than December 18, 2008.
The Attorney General, the Michigan Townships Association, the
Michigan Association of Counties & Michigan Association for Local
Public Health, and Peter C. Venlet, in pro per, are invited to file briefs
amicus curiae, to be filed no later than December 30, 2008. Other
persons or groups interested in the determination of the issues presented
in this case may move the Court for permission to file briefs amicus
curiae, with such briefs to be filed no later than December 30, 2008.
MARKMAN, J., (concurring). I concur in the order granting leave to
appeal. However, I would direct the parties to also address the issue
whether, under relevant legal and constitutional principles, MCL
333.2441(1) properly delegates authority to Charlevoix County and the
Northwest Michigan Community Health Agency to promulgate the
regulations at issue in this case. See, e.g., Taylor v Gate Pharmaceuticals,
468 Mich 1, 10 n 9 (2003); Blue Cross & Blue Shield of Michigan v
Governor, 422 Mich 1, 51 (1985).
CAVANAGH and KELLY, JJ. We would deny leave to appeal.
WEAVER, J. I would deny leave to appeal because I am not persuaded
that the questions presented should be reviewed by this Court.
PEOPLE V SWAFFORD, No. 136751. The parties shall address whether the
Interstate Agreement on Detainers, MCL 780.601, requires that a
detainer be lodged at the institution where the defendant is incarcerated
and, if so, whether there was sufficient evidence in this case that the
detainer was properly lodged.
The Clerk of the Court is directed to place this case on the January
2009 session calendar for argument and submission. Appellant’s brief
and appendix must be filed no later than November 24, 2008, and
appellee’s brief and appendix, if appellee chooses to submit an appendix,
must be filed no later than December 18, 2008.
The Criminal Defense Attorneys of Michigan and the Prosecuting
Attorneys Association of Michigan are invited to file briefs amicus curiae,
to be filed no later than December 30, 2008. Other persons or groups
interested in the determination of the issues presented in this case may
move the Court for permission to file briefs amicus curiae, with such
briefs to be filed no later than December 30, 2008. Court of Appeals No.
268499.
1016 482 MICHIGAN REPORTS
Leave to Appeal Denied October 17, 2008:

PEOPLE V WYATT, No. 136379; Court of Appeals No. 284367.

MARKMAN, J. (concurring). Defendant pleaded no contest to three
counts of first-degree criminal sexual conduct, and the Court of Appeals
denied his application for leave to appeal. The dissent concludes that we
“should grant leave to appeal to determine whether defendant is entitled
to an appeal as of right.” However, because defendant has never even
attempted to file an appeal as of right, I do not believe this issue is even
before this Court. Moreover, even if it is, I do not believe that defendant
is entitled to such an appeal. Proposal B, which eliminated appeals of
right in plea cases, became effective on December 27, 1994. Defendant’s
own confession establishes that at least some of his sexual assaults
occurred long after this date. Further, the Court of Appeals has already
considered the merits of defendant’s issues and found them “lack[ing] of
merit.” Finally, although the prosecutor “begrudgingly” recommended
that this Court remand to the Court of Appeals, defendant is not thereby
entitled to an appeal of right. For these reasons, I concur in the order
denying leave to appeal.
CAVANAGH, J. I would remand this case to the Court of Appeals for
consideration as on leave granted.
KELLY, J. (dissenting). The Court should grant leave to appeal to
determine whether defendant is entitled to an appeal as of right.
This case involves the effect of Proposal B. In November 1994, the
people of Michigan ratified Proposal B, which amended the Michigan
Constitution to limit criminal appeals and was intended to reduce the
burden imposed by plea-based convictions on the appellate system.
Before December 27, 1994, the Michigan Constitution afforded a criminal
defendant an appeal as of right from any conviction.1 After Proposal B
passed, a defendant no longer had an appeal as of right if he or she had
pleaded guilty or no contest to a criminal charge. Under these circum-
stances, an appeal could be heard only if the Court of Appeals granted
leave to appeal.
In 1999, defendant pleaded no contest to a series of offenses that
occurred “on or about” November 1994 through May 1995. He timely
requested appellate counsel after his sentencing. Unfortunately for him,
a court clerk misfiled his request, and it sat unanswered for 81/2 years.
The circuit court finally found and acted on the request in 2008.2

1
Const 1963, art 1, § 20.
2
Presumably, defendant would have filed an appeal as of right in this
case had the court clerk not “lost” his request for the appointment of
appellate counsel. As it is, by the time counsel was appointed, defendant
no longer had that option. Hence, it is unfair to him for Justice MARKMAN
to suggest that, because defendant never attempted to file an appeal as of
right, the issue is not before the Court. Had defendant filed an appeal as
of right 81/2 years after sentencing, the Court of Appeals surely would
have denied it out of hand.
 ACTIONS ON APPLICATIONS 1017
The dates of the offenses for which defendant pleaded no contest
straddle the cutoff date for appeals of right. It is not clear whether
Proposal B applies to offenses that occurred both before and after the
December 27, 1994, cutoff date. No caselaw has addressed this issue.
Under circumstances such as these, courts traditionally apply the rule of
lenity, mitigating the effects of the unclear law.3 “This rule of narrow
construction is rooted in the concern of the law for individual rights, and
in the belief that fair warning should be accorded as to what conduct is
criminal and punishable by deprivation of liberty or property.”4
Hence, it appears that defendant in this case may be entitled to an
appeal as of right. Both defendant and the prosecutor urge this Court to
recognize that right. After the Court of Appeals denied defendant leave to
appeal, the prosecutor continued to recommend granting him an appeal
as of right, and urged this Court to so rule “to be safe.” We should not
ignore the prosecutor’s admonition for caution. Defendant’s plea was for
conduct occurring, in part, before the cutoff date of Proposal B. Given the
likelihood that Proposal B does not apply in this case, the Court should
grant leave to appeal to resolve this question.

Reconsideration Denied October 17, 2008:

WILSON V COMCAST CABLEVISION CORPORATION, No. 136557. Leave to

appeal denied at 482 Mich 975. Court of Appeals No. 281228.

Leave to Appeal Dismissed October 17, 2008:

VAN WYNSBERGHE V AMERICAN AXLE & MANUFACTURING HOLDINGS, INC, No.

136515. 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. 277094.

Leave to Appeal Denied October 22, 2008:

TAYLOR V DEPARTMENT OF CORRECTIONS, No. 136573; Court of Appeals

No. 280363.
KELLY, J. I would grant leave to appeal.
PEOPLE V ANTERIO WILLIAMS, No. 136674; Court of Appeals No. 275477.
PEOPLE V HODGES, No. 136687; Court of Appeals No. 282209.
JACKSON-RUFFIN V METRO CARS, INC, No. 136694; Court of Appeals No.
276144.

3
See People v Denio, 454 Mich 691, 699-700 (1997).
4
Huddleston v United States, 415 US 814, 831 (1974), citing United
States v Wiltberger, 18 US (5 Wheat) 76, 95 (1820).
1018 482 MICHIGAN REPORTS
PEOPLE V LION, No. 136714; Court of Appeals No. 283883.
MCCORMICK V CARRIER, No. 136738; Court of Appeals No. 275888.
CAVANAGH, WEAVER, and KELLY, JJ. We would grant leave to appeal.
PEOPLE V HADRIAN, No. 136741; Court of Appeals No. 277880.
PEOPLE V SZPYRKA, No. 136749; Court of Appeals No. 284324.
PEOPLE V GRUBBS, No. 136826; Court of Appeals No. 274241.
PEOPLE V CHARLES MATHIS, No. 136844; Court of Appeals No. 275655.
KELLY, J. I would grant leave to appeal.
BANE V BANE, No. 137289; Court of Appeals No. 286058.

Order Granting Oral Argument in Case Pending on Application for Leave

to Appeal October 24, 2008:

ELLIS V FARM BUREAU INSURANCE COMPANY, No. 136069. The motion for
leave to file a brief amicus curiae is granted. The motion for reconsid-
eration of this Court’s July 25, 2008, order is considered, and it is
granted. We vacate our order dated July 25, 2008. On reconsideration,
the application for leave to appeal the February 12, 2008, judgment of the
Court of Appeals is considered. We direct the clerk to schedule oral
argument on December 3, 2008, at 9:30 a.m., on whether to grant the
application or take other peremptory action. MCR 7.302(G)(1). At oral
argument, the parties shall address: (1) whether, under the terms of the
insurance policy, the defendant is not liable because, under the facts of
this case, the insured premises were vacant or unoccupied for more than
60 consecutive days before the damage occurred; (2) whether the Court of
Appeals erred in relying on Smith v Lumbermen’s Mutual Ins Co, 101
Mich App 78 (1980), because that case did not involve a vacancy of 60
days or more or policy language, such as that here, that limits coverage
when the insured premises are vacant or unoccupied for more than 60
consecutive days; and (3) whether, regardless of the contract language,
there is merit in the plaintiff’s allegation that the Michigan Consumer
Protection Act was violated and that the defendant’s agent issued the
policy despite knowing that the plaintiff planned a period of renovation at
the house and, after issuing the policy, the agent never provided the
plaintiff with a copy of the policy and then terminated the agency
relationship with the defendant. The parties shall file supplemental
briefs no later than November 21, 2008. They should not submit mere
restatements of their application papers. Court of Appeals No. 275240.

Summary Disposition October 24, 2008:

BOND V COOPER, No. 136802. Pursuant to MCR 7.302(G)(1), in lieu of

granting leave to appeal, we vacate the judgment of the Court of Appeals
and we remand this case to the Court of Appeals for consideration of the
 ACTIONS ON APPLICATIONS 1019
sufficiency of the plaintiff’s notice of intent to file suit under MCL
600.2912b(4) and Boodt v Borgess Med Ctr, 481 Mich 558 (2008). Court
of Appeals No. 273315.
CAVANAGH and WEAVER, JJ. We are not persuaded that the case should
be remanded for further proceedings, but we would grant leave to appeal
to reconsider Boodt, supra.
KELLY, J. I would deny leave to appeal.

Leave to Appeal Denied October 24, 2008:

VANCE V HENRY FORD HEALTH SYSTEM, No. 132554; reported below 272
Mich App 426.
MARKMAN, J. (concurring). The decedent was seven years old when he
died. Plaintiff, the personal representative of the decedent’s estate, filed
this medical malpractice claim more than two years after the child’s
death and more than two years after she was appointed as personal
representative, but two days before what would have been the decedent’s
tenth birthday. The trial court denied defendants’ motion for summary
disposition, but the Court of Appeals reversed on statute of limitations
grounds.
MCL 600.5851(1) provides:

Except as otherwise provided in subsections (7) and (8), if the

person first entitled to make an entry or bring an action under this
act is under 18 years of age or insane at the time the claim accrues,
the person or those claiming under the person shall have 1 year
after the disability is removed through death or otherwise, to make
the entry or bring the action although the period of limitations has
run.

MCL 600.5851(7) provides, in pertinent part:

[I]f, at the time a claim alleging medical malpractice accrues to
a person under [MCL 600.5838a] the person has not reached his or
her eighth birthday, a person shall not bring an action based on the
claim unless the action is commenced on or before the person’s
tenth birthday or within the period of limitations set forth in
section 5838a, whichever is later.

Finally, MCL 600.5852 provides:

If a person dies before the period of limitations has run or
within 30 days after the period of limitations has run, an action
which survives by law may be commenced by the personal repre-
sentative of the deceased person at any time within 2 years after
letters of authority are issued although the period of limitations
has run. But an action shall not be brought under this provision
1020 482 MICHIGAN REPORTS
unless the personal representative commences it within 3 years
after the period of limitations has run.

The dissent argues that because this is a medical malpractice claim

that accrued before the decedent was eight years old, plaintiff had until
the decedent’s tenth birthday to file suit, pursuant to § 5851(7). I
respectfully disagree. Section 5851(1) states that a minor generally “shall
have 1 year after the disability is removed through death or otherwise” to
file a cause of action. Section 5851(7) then states, however, that if the
minor was under the age of eight when the action accrued, he would only
have until his tenth birthday to file the action. That is, under § 5851(7),
a minor under the age of eight would have to file suit before his tenth
birthday; he could not wait until he was 19 to file suit. However, that does
not mean that the minor has until his tenth birthday to file suit if the
disability has been removed before then. That is, when these provisions
are read together, it is clear that regardless of how old the minor was
when the action accrued, death removes the age disability, and, thus,
pursuant to § 5851(1), the personal representative of the minor’s estate
must file the action within one year of the minor’s death, unless another
saving provision preserves the action, such as the two-year grace period
for personal representatives in MCL 600.5852.1 However, § 5852 does not
preserve this action because the decedent died after the period of
limitations had run, and § 5852 only applies where the decedent dies
before the period of limitations has run. For these reasons, I concur in the
denial order.2
KELLY, J. (dissenting.) In this medical malpractice case, plaintiff’s
decedent, a seven-year-old child, died in one of Henry Ford Health
System’s hospitals from an alleged morphine overdose. Plaintiff brought

1
Such an interpretation is consistent with our decision in Vega v
Lakeland Hospitals, 479 Mich 243, 250 (2007), in which, we stated:

MCL 600.5851(1) begins, “Except as otherwise provided in

subsection[] (7) . . . .” Contrary to defendants’ contention, this
language does not mean that if § 5851(7) is applicable, § 5851(1) is
not applicable. Instead, it simply means that if § 5851(1) is
inconsistent with § 5851(7), § 5851(7) is controlling.
2
The dissent suggests that this interpretation of the statute, and that
of the Court of Appeals, illogically treats surviving children differently
than non-surviving children. First, it is, of course, not our place to
second-guess the Legislature’s logic, or lack thereof, as long as this does
not rise to the level of an “absurd result.” Second, I am not certain that
it is, in fact, illogical to treat surviving children differently than non-
surviving children. Perhaps the Legislature wanted to provide a surviving
child the possibility of a longer period in which to bring an action simply
because the surviving child may be able to reap tangible benefits from a
successful action that the non-surviving child cannot.
 ACTIONS ON APPLICATIONS 1021
suit after the expiration of the limitations period and more than two
years after being appointed decedent’s personal representative, but two
days before decedent would have been 10 years old. Defendant moved for
summary disposition, claiming that the statutory period of limitations
had expired. The trial court denied the motion but the Court of Appeals
reversed,1 relying on its decision in Vega v Lakeland Hospitals.2
The following year, this Court reversed the Court of Appeals decision in
Vega,3 relying on MCL 600.5851.4 We held that MCL 600.5851 applies to
the medical malpractice claims of those under 18 years of age or insane,
unless the claim falls under § 5851(7). The first sentence of § 5851(7)
creates a different limitations period for children under eight years of
age. That sentence did not apply in Vega, because the child in that case
was 11 years old at the time of the alleged malpractice. Conversely, the
first sentence of § 5851(7) does apply in this case because the decedent
was under eight years of age. Plaintiff argues that the claim was timely
because she filed it on behalf of a child who was injured before the age of
eight years and before the child would have reached the age of ten years.
The Court of Appeals interpretation of the statute creates two distinct
classes of plaintiffs with differing rights in medical malpractice claims.
Under its logic, children under eight years of age injured by medical
malpractice are allowed to claim the benefit of § 5851(7), but children of
the same age killed by medical malpractice are not. This dichotomy raises
a serious question regarding whether the Legislature intended such a
curious result.

1
Vance v Henry Ford Health Sys, 272 Mich App 426 (2006).
2
Vega v Lakeland Hospitals, 267 Mich App 565 (2005).
3
Vega v Lakeland Hospitals, 479 Mich 243 (2007).
4
MCL 600.5851 provides in pertinent part:

(1) Except as otherwise provided in subsections (7) and (8), if

the person first entitled to . . . bring an action is under 18 years of
age or insane at the time the claim accrues, the person or those
claiming under the person shall have one year after the disability
is removed through death or otherwise, to . . . bring the action
although the limitations period has run.

***

(7) . . . [I]f at the time a claim alleging malpractice accrues to a

person under 5838a, a person has not reached his or her eighth
birthday, a person shall not bring an action based on the claim
unless the action is commenced on or before the person’s tenth
birthday . . . . If at the time a claim alleging medical malpractice
accrues to a person under 5838a, the person has reached his or her
eighth birthday, he or she is subject to the period of limitations set
forth in section 5838a.
1022 482 MICHIGAN REPORTS
If the decedent in this case had survived, he would have had until his
tenth birthday to bring suit. One wonders why the personal representa-
tive of the decedent’s estate should have less time to bring suit than the
child’s parent or guardian, had the child survived. Furthermore, this
Court’s decision in Vega did not address what plaintiff argues is the Court
of Appeals error in this case, that § 5851(7) does not apply to claimants
who fail to survive medical malpractice.
The Court should grant leave to appeal to consider this jurispruden-
tially significant issue.
MATCZAK V MATCZAK, No. 136322; Court of Appeals No. 278259.
WEAVER, J. I would grant leave to appeal.
CORRIGAN, J. (dissenting). I would grant leave to appeal because the
Court of Appeals essentially engaged in an improper de novo review of
several statutory best interest factors and held that the trial court erred
in finding that those factors favored either defendant wife or neither
party. In addition, while I agree with the Court of Appeals that this case
should be remanded to ensure that the trial court’s award of attorney
fees to defendant includes only fees directly associated with the divorce
case, I do not agree that the trial court abused its discretion in finding
that plaintiff husband was capable of paying the attorney fees.

I. FACTS AND PROCEEDINGS

The disputed child custody order in this case was entered following
the parties’ divorce trial. Before the trial, and around the time plaintiff
filed the complaint for divorce, he hid a video camera in the parties’
bedroom, apparently because he suspected that defendant was having an
affair. The camera caught two incidents of child abuse by defendant.
Plaintiff waited to turn the digital video disc over to the Department of
Human Service (DHS) child protection authorities until approximately
two months later. DHS thereafter took temporary custody of the parties’
children and charged defendant with felony child abuse and plaintiff with
child neglect because of his delay in reporting the abuse. Both parties
pleaded no contest to the charges. After the divorce trial, the trial court
awarded sole legal and physical custody of the parties’ three children to
defendant. The court ruled that each of the statutory best interest
factors, MCL 722.23,1 either favored defendant or the parties equally. It

1
MCL 722.23 provides:

As used in this act, “best interests of the child” means the sum
total of the following factors to be considered, evaluated, and
determined by the court:

(a) The love, affection, and other emotional ties existing

between the parties involved and the child.
 ACTIONS ON APPLICATIONS 1023
also ordered plaintiff to pay defendant $1,412.54 a month in child
support, $600 a month in alimony, and to pay $35,000 of defendant wife’s
attorney fees.2
The Court of Appeals vacated the trial court judgment in an unpub-
lished opinion. With respect to the best interest factors, the panel held:

[W]e are left with the distinct impression that the trial judge
routinely engaged in something of a one-sided analysis that
favored defendant. The judge consistently and significantly mini-
mized defendant’s culpable behavior while highlighting plaintiff’s

(b) The capacity and disposition of the parties involved to give

the child love, affection, and guidance and to continue the educa-
tion and raising of the child in his or her religion or creed, if any.

(c) The capacity and disposition of the parties involved to

provide the child with food, clothing, medical care or other
remedial care recognized and permitted under the laws of this
state in place of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfac-
tory environment, and the desirability of maintaining continuity.

(e) The permanence, as a family unit, of the existing or

proposed custodial home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court considers

the child to be of sufficient age to express preference.

(j) The willingness and ability of each of the parties to facilitate

and encourage a close and continuing parent-child relationship
between the child and the other parent or the child and the
parents.

(k) Domestic violence, regardless of whether the violence was

directed against or witnessed by the child.

(l) Any other factor considered by the court to be relevant to a

particular child custody dispute.
2
Plaintiff earned $64,000 a year compared to defendant’s annual
salary of $11,000.
1024 482 MICHIGAN REPORTS
meaningfully less culpable behavior. An objective view of the facts
simply does not warrant a finding that defendant should have full
physical and legal custody. [Matczak v Matczak, unpublished
opinion per curiam of the Court of Appeals, issued March 18, 2008
(Docket No. 278259), at 3.]

The panel determined that the trial court’s findings concerning four of
the best interest factors were against the great weight of the evidence,
and concluded that the trial court abused its discretion in ruling that
defendant was entitled to sole physical and legal custody.
The Court of Appeals also vacated the attorney fee award and
remanded for the trial court to (1) “exclude from the attorney fee award
any fees not directly associated with the divorce” and (2) “examine
plaintiff’s expenses to determine whether he is in fact able to bear any
portion of defendant’s attorney fees.” Matczak, supra at 8. The panel
explained that many of the fees were for work associated with the child
abuse and neglect case brought by the state, not the divorce case, and
that the trial court failed to make the requisite finding that plaintiff was
able to bear the expense of defendant wife’s attorney fees. Id. at 7-8.

II. ANALYSIS

A. CHILD CUSTODY

A trial court’s findings in a child custody case are reviewed under the
great weight of the evidence standard. Berger v Berger, 277 Mich App
700, 705 (2008). Its findings concerning each custody factor should be
affirmed unless the evidence clearly preponderates in the opposite
direction. Id. A trial court’s custody decisions are reviewed for an abuse
of discretion. Id. Here, although the Court of Appeals recited the correct
standard of review, it effectively engaged in a de novo review of the best
interest factors. Under the correct standard of review, the Court of
Appeals should have affirmed the trial court’s findings.
First, the Court of Appeals found that the trial court erred in
concluding that factor c (the capacity and disposition of the parties to
provide the child with food, clothing, medical care, and other remedial
care) favored defendant because it ignored evidence regarding plaintiff’s
financial and care-giving contributions to the children. The trial court,
however, specifically recognized that plaintiff had a higher income than
defendant and had made financial contributions to the marriage, but
found that the family’s financial problems were caused by plaintiff’s
financial irresponsibility. The record supports the trial court’s finding.
During the marriage, plaintiff controlled the parties’ finances. He pur-
chased the marital home and took out two mortgages on the home. Under
his control, the parties also accumulated $55,000 in credit card debt
during the marriage. Plaintiff husband went on to accumulate $45,000
more in credit card debt after the complaint for divorce was filed. The
trial court noted that plaintiff proposed borrowing more money to
 ACTIONS ON APPLICATIONS 1025
maintain the marital home, while defendant was renting a home, and
found defendant’s financial plan more reasonable. I think the Court of
Appeals erred in rejecting the trial court’s ruling that defendant is more
fiscally responsible and has a more reasonable financial plan than
plaintiff, thus giving her a greater capacity and disposition to provide the
children with food, clothing, medical care, and other remedial care. The
Court of Appeals erred by overlooking the evidence of plaintiff’s financial
irresponsibility. Had it not done so, it would have affirmed the trial
court’s finding.
Second, the Court of Appeals found that the trial court erred in
finding that factor f (moral fitness of the parties) did not favor either
party. The panel held that this factor should have favored plaintiff
because defendant wife had physically abused the children, including two
incidents that were caught on camera and resulted in charges of felony
child abuse. In so holding, the Court of Appeals ignored other evidence
and substituted its own view of the evidence for that of the trial court.
Although the trial court did not make specific findings on this factor, the
proofs showed that defendant had taken responsibility for her actions
and had benefited from therapy following the child abuse incident.
Evidence further showed that plaintiff had been physically violent
toward defendant. In addition, the trial court noted in discussing another
best interest factor that it found plaintiff’s use of a hidden camera
“unconscionable.” It also noted that although plaintiff learned from the
video that defendant had been abusing the children, he allowed them to
stay in her care until DHS removed them.
Third, the Court of Appeals held that the trial court erred in finding
that factor g (mental and physical health of the parties) favored neither
party. It found that this factor should have favored plaintiff in light of the
testimony of court-ordered psychologist Dr. Vasser that defendant “suf-
fered from histrionic personality disorder with narcissistic and mild
borderline features” and his conclusion that defendant “has a problem
controlling her anger and would require intensive therapy.” Matczak,
supra at 5. Here the Court of Appeals again failed to defer to the trial
court’s findings of fact and credibility determinations. The trial court
acknowledged plaintiff’s testimony that defendant had “mental health
issues,” and that defendant admitted having emotional difficulties. The
court, however, credited the testimony of defendant’s therapist, who
characterized her as having an “adjustment disorder” as a result of the
divorce, financial problems, pregnancy, and her son’s defiance, but “no
ongoing issues.” By crediting Dr. Vasser’s testimony over the testimony of
defendant’s therapist, the Court of Appeals essentially made its own
credibility findings de novo. The Court of Appeals also ignored testimony
from defendant, her therapists, the DHS employee assigned to the case,
and others that defendant was not mentally ill.
The Court of Appeals also failed to acknowledge evidence of plaintiff’s
anger problems. A DHS employee and the child’s therapist both charac-
terized plaintiff as “very angry” with defendant. Additionally, the DHS
employee testified that plaintiff appeared “emotionally unstable.” She
testified that plaintiff was “more difficult to deal with” than defendant
and was less insightful about his anger problems and the consequences of
1026 482 MICHIGAN REPORTS
his actions. She also testified that defendant wife took responsibility for
her actions, whereas plaintiff did not.
Finally, the Court of Appeals held that the trial court erred in finding
that factor k (domestic violence) did not favor either party and concluded
that this factor should have favored defendant. In so holding, the Court
of Appeals stated that “the record . . . reflects that defendant is more
inclined to engage in domestic violence than plaintiff.” Matczak, supra at
5. Again, this is error by the Court of Appeals. The incident captured on
video does show defendant spanking and slapping one of the children.
However, other evidence revealed that plaintiff had repeatedly acted
violently toward defendant. In 2000, while defendant was seven months
pregnant with the parties’ first child, plaintiff became angry with
defendant. As she attempted to call for help, plaintiff repeatedly ripped
the telephone from her hand. When defendant reached for the kitchen
phone, plaintiff pushed her, causing her pregnant belly to strike the
kitchen counter. Defendant went into the bedroom to get dressed, but
plaintiff repeatedly pushed her onto the bed. Plaintiff fled the house, but
the police caught him and took him to jail. Other incidents of plaintiff’s
violence were also proved. In 2006, while defendant was holding the baby,
plaintiff became angry with defendant and grabbed the phone from her
hand. The incident prompted defendant to call 911. In other instances,
plaintiff, in fits of anger, broke a kitchen drawer and punched holes in the
walls. By downplaying these incidents, the Court of Appeals again made
its own de novo determination regarding the credibility of the parties and
the weight of the evidence.
Because the Court of Appeals inappropriately engaged in de novo
review and the findings of the trial court are not against the great weight
of the evidence, I would reinstate the trial court’s decision.

B. ATTORNEY FEES

MCR 3.206(C)(2)(a) provides that a party requesting attorney fees

must allege facts sufficient to show that “the party is unable to bear the
expense of the action, and that the other party is able to pay . . . .” It is
undisputed that defendant’s $11,000 annual salary and $3,000 monthly
expenses rendered her unable to bear the expense of the divorce action.
The trial court found that plaintiff’s $64,000 salary gave him a greater
ability to pay the attorney fees in this case. I disagree with the Court of
Appeals that the trial court abused its discretion in finding that plaintiff
was able to pay the attorney fees. Here, plaintiff’s higher salary clearly
gave him a greater ability to pay than defendant. Although plaintiff had
substantial monthly expenses, these expenses were of his own making.
Defendant should not be punished for plaintiff’s fiscal irresponsibility.
Plaintiff controlled the finances of the parties during the marriage and
incurred the substantial debts for which he and defendant are now liable.
He decided to take on two large mortgages and incur the credit card debt.
He also incurred another $45,000 in credit card debt after he filed the
complaint for divorce. If plaintiff had been fiscally responsible, he would
have been able to pay defendant’s attorney fees on his $64,000 salary. In
light of these circumstances, I cannot say the trial court abused its
 ACTIONS ON APPLICATIONS 1027
discretion in holding that plaintiff was able to pay $35,000 of defendant’s
attorney fees. I agree with the Court of Appeals, however, that this case
should be remanded to ensure that the award includes only attorney fees
directly associated with the divorce case, not the child abuse or neglect
case or any other matter.
KELLY, J. I join the statement of Justice CORRIGAN.
PEOPLE V UNGER, No. 136781; reported below 278 Mich App 210.
CAVANAGH, J. I would grant leave to appeal.
KELLY, J. (dissenting). Defendant was convicted of first-degree murder
after a highly publicized and sensational jury trial. The Court of Appeals
affirmed the verdict,1 but expressed displeasure at several instances of
prosecutorial misconduct during the trial. This Court should consider
this misconduct to determine whether defendant received a fair trial.
The Court of Appeals concluded that the prosecutor crossed the line
between strong advocacy and prosecutorial misconduct when it

suggested that defense counsel had “re-victimized” Florence Un-

ger during the course of trial. A prosecutor may not appeal to the
jury to sympathize with the victim. Nor may a prosecutor urge the
jury to convict as a part of its civic duty or on the basis of its
prejudices. The prosecution’s comments were . . . improper.

***

The prosecution also clearly exceeded the bounds of proper

argument when it suggested (1) that defense counsel had at-
tempted to “confuse the issue[s]” and “fool the jury” by way of
“tortured questioning,” “deliberately loaded questions,” and “a
deliberate attempt to mislead,” (2) that defense counsel had
attempted to . . . us[e] “red herrings” and “smoke and mirrors,”
and (3) that defense counsel had attempted “to deter [the jury]
from seeing what the real issues are in this case.”

***

. . . Arguing that an expert witness had a financial motive to

testify is one thing; arguing that the expert has intentionally
misled the jury is quite another. . . . [I]n a case that turns largely
on conflicting expert testimony, a prosecutor must take special
steps to avoid misconduct designed to impugn the integrity of the
defendant’s experts. . . . We find that the challenged prosecutorial
remarks unnecessarily and impermissibly impugned the integrity

1
People v Unger, 278 Mich App 210 (2008).
1028 482 MICHIGAN REPORTS
of Dr. Paul and that the prosecution committed misconduct in this
respect.[2]

However, the Court of Appeals dismissed any notion that these improper
arguments affected the jury’s verdict by stating that the trial court’s jury
instructions cured the midsconduct.3 The judge told the jury that the
prosecutor’s comments were not evidence.
In People v Tyson,4 this Court held that a prosecutor must not
improperly impugn the integrity of a defendant’s experts, especially in a
case that turns largely on conflicting expert testimony. Here, the pros-
ecutor did not take special steps to avoid misconduct, and his comments
threatened defendant’s right to a fair trial. This is especially true because
there was no direct evidence of defendant’s guilt, and the prosecution
relied heavily on circumstantial evidence.
As a consequence, the Court should grant leave to appeal to determine
whether the prosecutorial misconduct denied defendant a fair trial.
In re COBB (DEPARTMENT OF HUMAN SERVICES V COBB), No. 137475; Court
of Appeals No. 285885.

Appeal Dismissed October 24, 2008:

PEOPLE V LIPSEY, No. 136147. 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. 283166.

Summary Disposition October 27, 2008:

PEOPLE V HOUCK, No. 136980. Pursuant to MCR 7.302(G)(1), in lieu of

granting leave to appeal, we remand this case to the Court of Appeals for
consideration, as on leave granted, of whether offense variable 9, MCL
777.39, and offense variable 10, MCL 777.40, were properly scored under
the facts of this case. In all other respects, leave to appeal is denied,
because we are not persuaded that the remaining questions presented
should be reviewed by this Court. Court of Appeals No. 285203.

Leave to Appeal Denied October 27, 2008:

PEOPLE V KENNEDY MATTHEWS, No. 131710. The defendant has failed to

meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 266473.

2
Id. at 237-240 (citations omitted).
3
Id. at 234, 238, 240-241.
4
People v Tyson, 423 Mich 357 (1985).
 ACTIONS ON APPLICATIONS 1029
PREFERRED MEDICINE, INC V ALLSTATE INSURANCE COMPANY, No. 132955;
Court of Appeals No. 263451.
ALLSTATE INSURANCE COMPANY V A&A MEDICAL TRANSPORTATION SERVICES,
INC, Nos. 133348 and 133349; Court of Appeals Nos. 260766 and 261504.
BEST CARE REHABILITATION, INC v ALLSTATE INSURANCE COMPANY, No.
134222; Court of Appeals No. 272395.
PEOPLE V BOWENS-FRAZIER, No. 135627; Court of Appeals No. 281757.
PEOPLE V GRATTON, No. 135883; Court of Appeals No. 273921.
PEOPLE V BRASWELL, No. 135943; Court of Appeals No. 271210.
PEOPLE V LOCKMAN, No. 135977; Court of Appeals No. 273330.
PEOPLE V SIMPSON, No. 136152; Court of Appeals No. 283426.
PEOPLE V JAMES SPARKS, No. 136180; Court of Appeals No. 277042.
PEOPLE V WASHINGTON, No. 136222. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 279139.
PEOPLE V ROBERT MILLER, No. 136229; Court of Appeals No. 283225.
PEOPLE V CAMERON WILLIAMS, No. 136248. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 279658.
PEOPLE V HAVENS, No. 136250. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 280571.
PEOPLE V COLE, No. 136264. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 280413.
PEOPLE V RASHAD, No. 136269. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 282453.
PEOPLE V STEWART, No. 136302. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 281316.
PEOPLE V SMITH-BEY, No. 136331; Court of Appeals No. 274243.
PEOPLE V HOFFMAN, No. 136342. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 280065.
PEOPLE V MENEFEE, No. 136360. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 280733.
1030 482 MICHIGAN REPORTS
PEOPLE V PAGE, No. 136367; Court of Appeals No. 283369.
PEOPLE V MCGOWAN, No. 136370; Court of Appeals No. 275781.
PEOPLE V ALEJANDRO GARDNER, No. 136378. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 283147.
PEOPLE V TOWNSEND, No. 136385. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 280287.
PEOPLE V ADKINS, No. 136399. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 280221.
PEOPLE V HIGGINS, No. 136401; Court of Appeals No. 276124.
PEOPLE V WILEY, No. 136403. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 281608.
PEOPLE V GONZALEZ, No. 136404. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 283272.
PEOPLE V TIGGART, No. 136427. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 283651.
PEOPLE V WALTER JONES, No. 136430. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 282204.
PEOPLE V BRADLEY, No. 136434. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 279978.
PEOPLE V SCOTT MARTIN, No. 136447. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 283037.
PEOPLE V KORCAMONI MCCLELLAN, No. 136459. The defendant has failed
to meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 282854.
PEOPLE V DUCKETT, No. 136466. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 283311.
PEOPLE V ROGER YOUNG, No. 136468. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 281435.
PEOPLE V BECHTOL, No. 136470. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 280131.
 ACTIONS ON APPLICATIONS 1031
PEOPLE V JOHN WILLIAMS, No. 136475; Court of Appeals No. 275589.
CORRIGAN, J., did not participate for the reasons stated in People v
Parsons, order of the Supreme Court, entered March 6, 2007 (Docket No.
132975).
PEOPLE V TRAN, No. 136476. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 283483.
PEOPLE V FRAZIER, No. 136479; Court of Appeals No. 275083.
PEOPLE V BUTLER, No. 136498. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 283134.
PEOPLE V RUGGLES, No. 136505. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 281682.
PEOPLE V STIFF, No. 136507. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 283732.
PEOPLE V DRYER, No. 136516; Court of Appeals No. 275342.
PEOPLE V KENNETH SPARKS, No. 136519. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 283273.
PEOPLE V LEROY SIMMONS, No. 136526; Court of Appeals No. 270832.
PEOPLE V BLUMENTHAL, No. 136528. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 282633.
PEOPLE V EDWARD MANUEL, No. 136530. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 282166.
PEOPLE V LANDERS, No. 136539. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 280800.
PEOPLE V DWAYNE HALL, No. 136547. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 279046.
PEOPLE V DOOLITTLE, No. 136550; Court of Appeals No. 271739.
PEOPLE V TONY MCCLELLAN, No. 136551. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 282369.
PEOPLE V LINT, No. 136552. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 281800.
1032 482 MICHIGAN REPORTS
PEOPLE V DERRICK JOHNSON, No. 136554. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 280712.
PEOPLE V SOLI, No. 136558; Court of Appeals No. 283918.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Conway, 474 Mich 1140 (2006).
PEOPLE V SCHNIERS, No. 136559; Court of Appeals No. 283260.
PEOPLE V MARVIN LEWIS, No. 136563. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 283491.
PEOPLE V BAEZ, No. 136570. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 280564.
PEOPLE V DUANE MILLS, No. 136572. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 283142.
PEOPLE V JENDRZEJEWSKI, No. 136585. The defendant’s motion for relief
from judgment is prohibited by MCR 6.502(G). Court of Appeals No.
280066.
PEOPLE V FINLEY, No. 136587. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 282094.
PEOPLE V LAMAR CLARKE, No. 136594; Court of Appeals No. 281620.
PEOPLE V COURTNEY, No. 136596. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 283126.
PEOPLE V TINA CLARKE, No. 136599. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 282375.
PEOPLE V DAMRON, No. 136602; Court of Appeals No. 284187.
PEOPLE V THOMAS PALMER, No. 136609. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 280880.
PEOPLE V CHERYL YOUNG, No. 136626. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 283145.
PEOPLE V WILLIE LOVE, No. 136627. The defendant’s motion for relief
from judgment is prohibited by MCR 6.502(G). Court of Appeals No.
284898.
 ACTIONS ON APPLICATIONS 1033
PEOPLE V DEANDRE KNIGHT, No. 136628. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 282559.
PEOPLE V CHMIELEWSKI, No. 136629. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 283205.
PEOPLE V THOMAS JONES, No. 136640. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 280849.
PEOPLE V MORTON, No. 136645. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 284120.
PEOPLE V ABRAM, No. 136650. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 283345.
PEOPLE V WIGGINS, No. 136657; Court of Appeals No. 281407.
PEOPLE V TIMES, No. 136659; Court of Appeals No. 274209.
PEOPLE V WADE, No. 136661; Court of Appeals No. 284457.
FEDERAL INSURANCE COMPANY V CONBRACO INDUSTRIES, INC and CITIZENS
INSURANCE COMPANY V NORTHERN INDUSTRIAL REFRIGERATION, INC, Nos.
136672 and 136673; Court of Appeals Nos. 274351 and 274421.
PEOPLE V MESECAR, No. 136696; Court of Appeals No. 284108.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Conway, 474 Mich 1140 (2006).
PEOPLE V BURTON, No. 136702; Court of Appeals No. 278148.
PEOPLE V HORN, No. 136718; reported below: 279 Mich App 31.
GUARDIAN ENVIRONMENTAL SERVICES, INC V BUREAU OF CONSTRUCTION CODES
AND FIRE SAFETY, No. 136746; reported below: 279 Mich App 1.
PEOPLE V JAMES DIXON, No. 136769; Court of Appeals No. 283136.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Conway, 474 Mich 1140 (2006).
PEOPLE V CHANTANUS FRANKLIN, No. 136770; Court of Appeals No.
275203.
PEOPLE V MURRIEL, No. 136778; Court of Appeals No. 276687.
PEOPLE V ELIE, No. 136780; Court of Appeals No. 277988.
PEOPLE V AMY THOMPSON, No. 136782; Court of Appeals No. 284476.
BRAVERMAN V PIERCE, No. 136788; Court of Appeals 274165.
KIM V WERNETTE, No. 136797; Court of Appeals No. 277362.
PEOPLE V MAZUREK, No. 136800; Court of Appeals No. 275755.
1034 482 MICHIGAN REPORTS
PEOPLE V HAMBLIN, No. 136805; Court of Appeals No. 277833.
PEOPLE V KING, No. 136809; Court of Appeals No. 278101.
PEOPLE V CALHOUN, No. 136813; Court of Appeals No. 284958.
PEOPLE V WHYTE, No. 136814; Court of Appeals No. 276488.
BRONSON METHODIST HOSPITAL V KURTZ, No. 136818; Court of Appeals
No. 274938.
PEOPLE V HOLDEN, No. 136819; Court of Appeals No. 272633.
PEOPLE V OLLILA, No. 136824; Court of Appeals No. 274541.
PEOPLE V STAPLETON, No. 136842; Court of Appeals No. 264175.
PEOPLE V HOSFELT, No. 136847; Court of Appeals No. 284917.
PEOPLE V QUINN, No. 136855; Court of Appeals No. 285422.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Conway, 474 Mich 1140 (2006).
PEOPLE V HEXIMER, No. 136857; Court of Appeals No. 283686.
PEOPLE V MALIK, No. 136860; Court of Appeals No. 274507.
PEOPLE V JOHN RODGERS, No. 136871; Court of Appeals No. 285018.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Conway, 474 Mich 1140 (2006).
PEOPLE V JACQUELINE CURRY, No. 136873; Court of Appeals No. 284587.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Conway, 474 Mich 1140 (2006).
PEOPLE V WALLS, No. 136875; Court of Appeals No. 284780.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Conway, 474 Mich 1140 (2006).
PEOPLE V DEON WILSON, No. 136876; Court of Appeals No. 284805.
MOORE V DEPARTMENT OF CORRECTIONS, No. 136878; Court of Appeals No.
283169.
BROE REHABILITATION SERVICES, INC v ALLSTATE INSURANCE COMPANY, No.
136882; Court of Appeals No. 275587.
BRISTOL MANUFACTURING, INC v JENNINGS GENERAL MAINTENANCE, INC, No.
136893; Court of Appeals No. 272006.
DEWITT V SEALTEX COMPANY, INC, Nos 136895 and 136897; Court of
Appeals Nos. 273387, 273390, and 275931.
PEOPLE V JOHNSON-PEEL, No. 136898; Court of Appeals No. 271478.
PITCHER V SEALTEX COMPANY, INC, No. 136899; Court of Appeals No.
274255.
PEOPLE V TIMOTHY SMITH, No. 136902; Court of Appeals No. 277903.
 ACTIONS ON APPLICATIONS 1035
UNITY APOSTOLIC CATHEDRAL V WAYNE COUNTY TREASURER, No. 136908;
Court of Appeals No. 263499.
PEOPLE V RONALD WAYNE HARRIS, No. 136910; Court of Appeals No.
270621.
PEOPLE V MEDRANO, No. 136913; Court of Appeals No. 285066.
PEOPLE V NIKO SIMMONS, No. 136914; Court of Appeals No. 285409.
PEOPLE V MOSES, No. 136916; Court of Appeals No. 277151.
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC v MAJIC FUNDING, LLC,
No. 136922; Court of Appeals No. 277343.
PEOPLE V GLENN WILLIAMS, No. 136929; Court of Appeals No. 284585.
PEOPLE V JAWORSKI, No. 136932; Court of Appeals No. 283388.
LIU V SHEPARD, No. 136934; Court of Appeals No. 285098.
PEOPLE V CRENSHAW, No. 136936; Court of Appeals No. 274238.
PEOPLE V SHEPHERD, No. 136938; Court of Appeals No. 284117.
PEOPLE V RUDDENE MILLER, No. 136944; Court of Appeals No. 276589.
PEOPLE V CAREY, No. 136946; Court of Appeals No. 277902.
In re PETERSON (PETERSON V WAYNE CIRCUIT JUDGE), No. 136947; Court
of Appeals No. 282794.
PEOPLE V RASHEEN BROWN, No. 136949; Court of Appeals No. 270877.
PEOPLE V GEE, No. 136953; Court of Appeals No. 285191.
PEOPLE V MEYER, No. 136958; Court of Appeals No. 285224.
RICHFIELD LANDFILL, INC v STATE OF MICHIGAN, No. 136959; Court of
Appeals No. 272519.
PEOPLE V GAMMAGE, No. 136964; Court of Appeals No. 285229.
PEOPLE V LOUIS, No. 136965; Court of Appeals No. 275652.
CORRIGAN, J. I would grant leave to appeal for the reasons set forth in
my dissenting statement in People v Thompson, 477 Mich 146 (2007).
PEOPLE V PETERSON, No. 136968; Court of Appeals No. 278317.
GARNER V ANDROID INDUSTRIES, LLC, No. 136977; Court of Appeals No.
282171.
PEOPLE V GLISSON, No. 136987; Court of Appeals No. 285903.
PEOPLE V MALONE, No. 136989; Court of Appeals No. 284341.
PEOPLE V LEATHERWOOD, No. 137010; Court of Appeals No. 277021.
PEOPLE V WATSON, No. 137013; Court of Appeals No. 272732.
1036 482 MICHIGAN REPORTS
PEOPLE V ROBERT FOX, JR, No. 137016; Court of Appeals No. 283681.
PEOPLE V DEANDRE GRAY, No. 137021; Court of Appeals No. 276292.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Conway, 474 Mich 1140 (2006).
PEOPLE V MATTHEW ROBINSON, No. 137022; Court of Appeals No.
277796.
PEOPLE V CHARLES THOMAS, No. 137023; Court of Appeals No. 285336.
PEOPLE V GLOSSON, No. 137030; Court of Appeals No. 276823.
PEOPLE V COLWELL, No. 137037; Court of Appeals No. 285598.
PEOPLE V MINTON, No. 137039; Court of Appeals No. 285521.
PEOPLE V DOMACO SIMS, No. 137041; Court of Appeals No. 274236.
PEOPLE V DAMARR JONES, No. 137042; Court of Appeals No. 286102.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Conway, 474 Mich 1140 (2006).
MCFADDEN V DELPHI CORPORATION, No. 137043; Court of Appeals No.
282627.
PEOPLE V NATHANIEL HAYNES, No. 137053; Court of Appeals No. 285424.
PEOPLE V GREGORY COOK, No. 137059; Court of Appeals No. 276596.
PEOPLE V ODOM, No. 137062; Court of Appeals No. 275840.
PEOPLE V SIAN, No. 137065; Court of Appeals No. 278459.
PEOPLE V STEARNS, No. 137079; Court of Appeals No. 281160.
PEOPLE V MITCHELL, No. 137081; Court of Appeals No. 274004.
PEOPLE V SEALEY, No. 137082; Court of Appeals No. 285816.
PEOPLE V BRIGGS, No. 137086; Court of Appeals No. 285539.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Conway, 474 Mich 1140 (2006).
FORRO V MICHIGAN STATE UNIVERSITY, No. 137095; Court of Appeals No.
283993.
PEOPLE V JAMES LEWIS, No. 137101; Court of Appeals No. 277755.
PEOPLE V DUNNUCK, No. 137105; Court of Appeals No. 278328.
PEOPLE V HITTLE, No. 137139; Court of Appeals No. 285712.
ROBINSON V BIRDS EYE FOODS, INC, No. 137160; Court of Appeals No.
277339.
 ACTIONS ON APPLICATIONS 1037
PEOPLE V BONIOR, No. 137236. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 286646.
CONCERNED CITIZENS OF ACME TOWNSHIP V ACME TOWNSHIP, No. 137237;
Court of Appeals No. 286796.
PEOPLE V RHYNDRESS, No. 137287; Court of Appeals No. 278811.

Reconsiderations Denied October 27, 2008:

WEST V FARM BUREAU GENERAL INSURANCE COMPANY OF MICHIGAN, No.

132156. Leave to appeal denied at 482 Mich 880. Court of Appeals No.
251003.
In re MILES ESTATE (MILES V SOLEUS HEALTHCARE SERVICES OF MICHIGAN,
INC), No. 133829. Leave to appeal denied at 482 Mich 891. Court of
Appeals No. 270033.
CIARAMITARO V GREEKTOWN CASINO, LLC, No. 135250. Appeal dismissed
December 12, 2007 (Docket No. 135250). Court of Appeals No. 279388.
PEOPLE V WARD, No. 135529. Leave to appeal denied at 481 Mich
877. Court of Appeals No. 280907.
PEOPLE V SEARIGHT, No. 135641. Leave to appeal denied at 480 Mich
1138. Court of Appeals No. 281536.
DRAKE V SCHANTZ-RONTAL, No. 135879. Leave to appeal denied at 482
Mich 890. Court of Appeals No. 270225.
WEAVER, J. I would grant the motion for reconsideration.
KELLY, J. I would grant the motion for reconsideration for the reasons
set forth in Justice WEAVER’s dissenting statement in this case, 482 Mich
890 (2008).
PEOPLE V KELLY, No. 135899. Leave to appeal denied at 482 Mich
893. Court of Appeals No. 278997.
PEOPLE V COMSTOCK, No. 136061. Leave to appeal denied at 481 Mich
914. Court of Appeals No. 274133.
PEOPLE V MONTEZ COOPER, No. 136181. Leave to appeal denied at 482
Mich 973. Court of Appeals No. 282525.
PEOPLE V WOOTEN, No. 136219. Leave to appeal denied at 482 Mich 973.
Court of Appeals No. 283691.
RESSLER V HUNTERS CREEK ESTATES, No. 136252. Leave to appeal denied
at 481 Mich 917. Court of Appeals No. 280110.
JACOBSON V NORFOLK DEVELOPMENT CORPORATION, No. 136260. Leave to
appeal denied at 481 Mich 917. Court of Appeals No. 273708.
1038 482 MICHIGAN REPORTS
GITLER V CLAWSON, No. 136270. Leave to appeal denied at 481 Mich
917. Court of Appeals No. 279846.
PEOPLE V THOMPKINS, No. 136305. Leave to appeal denied at 482 Mich
974. Court of Appeals No. 281974.
WRIGHT V MICRO ELECTRONICS, INC, No. 136324. Leave to appeal denied
at 482 Mich 882. Court of Appeals No. 274668.
RODRIGUEZ V MERCHANT, No. 136356. Leave to appeal denied at 482
Mich 896. Court of Appeals No. 282671.
MACOMB TOWNSHIP V MICHAELS, No. 136923. Leave to appeal denied at
482 Mich 948. Court of Appeals No. 286640.

Leave to Appeal Granted October 30, 2008:

In re HUDSON (DEPARTMENT OF HUMAN SERVICES V MORGAN), No. 137362.

The parties shall include among the issues to be addressed whether: (1)
petitioner presented clear and convincing evidence of statutory grounds
for termination of respondent-mother’s parental rights; (2) petitioner
presented clear and convincing evidence that termination was not
contrary to the children’s best interests; (3) this Court should address the
issues raised by respondent in the Court of Appeals; and (4) the issues
raised by respondent in the Court of Appeals were properly decided.
We further order the Clinton Circuit Court, Family Division, utilizing
a procedure analogous to that described in Administrative Order No.
2003-3, to determine no later than November 10, 2008, whether
respondent-appellee is indigent and, if so, to appoint attorney Vivek S.
Sankaran, of the University of Michigan Law School, Child Advocacy Law
Clinic, if feasible, to represent respondent in this Court. If respondent is
not indigent, she must retain her own counsel.
The Children’s Law Section and the Family Law Section of the State
Bar of Michigan are invited to file briefs amicus curiae. Other persons or
groups interested in the determination of the issues presented in this
case may move the Court for permission to file briefs amicus curiae.
Court of Appeals No. 282765.

Leave to Appeal Denied October 30, 2008:

ANDERSON V STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, No.

137228; Court of Appeals No. 277096.
CAVANAGH and KELLY, JJ. We would reverse the Court of Appeals.

Summary Disposition October 31, 2008:

COMPTON V PASS, No. 132506. Pursuant to MCR 7.302(G)(1), in lieu of

granting leave to appeal, we vacate the judgment of the Court of Appeals
 ACTIONS ON APPLICATIONS 1039
and we remand this case to the Court of Appeals for reconsideration, in
light of Stone v Williamson, 482 Mich 144 (2008), of whether this is a
lost-opportunity case and whether the defendants are entitled to sum-
mary disposition under MCL 600.2912a(2). On remand, the Court of
Appeals shall also consider the other issues raised by the parties, but not
addressed by that court during its initial review of this case, to the extent
necessary to resolve this case. Court of Appeals No. 260362.
MARKMAN, J. (concurring). The trial court denied defendants’ motion
for summary disposition; but, after the close of plaintiff’s proofs, granted
defendants’ motion for a directed verdict. The Court of Appeals reversed
the trial court’s order denying defendants’ motion for summary disposi-
tion and vacated the trial court’s subsequent orders. MCL 600.2912a(2)
provides, in pertinent part, “In an action alleging medical malpractice,
the plaintiff cannot recover for loss of an opportunity to survive or an
opportunity to achieve a better result unless the opportunity was greater
than 50%.” We recently addressed this provision with some considerable
lack of consensus in Stone v Williamson, 482 Mich 144 (2008).
Plaintiff’s expert testified that the decedent’s premalpractice chance
of not suffering from lymphedema or axillary cording was at least 97%,
while her postmalpractice chance of not suffering from lymphedema was
82% and her postmalpractice chance of not suffering from axillary
cording was 90%. I believe that this is a lost opportunity cause of action
because “it is possible that the bad outcome would have occurred even if
the patient had received proper treatment.” Stone, supra at 218 (MARK-
MAN, J., concurring in the result only). Further, utilizing the formula
described in my opinion in Stone, plaintiff satisfies the § 2912a require-
ment. I would reverse the Court of Appeals, but for the fact that my
opinion did not carry the day. Therefore, I must accede to the remand
order.

Leave to Appeal Denied October 31, 2008:

BAKER V ST JOHN HEALTH SYSTEMS, No. 133525; Court of Appeals No.

267284.
MARKMAN, J. (concurring). The trial court granted defendants’ motion
for summary disposition, but the Court of Appeals reversed. MCL
600.2912a(2) provides, in pertinent part, “In an action alleging medical
malpractice, the plaintiff cannot recover for loss of an opportunity to
survive or an opportunity to achieve a better result unless the opportu-
nity was greater than 50%.” We recently addressed this provision with
some considerable lack of consensus in Stone v Williamson, 482 Mich 144
(2008). Given their decisions in Stone, I believe it is clear that my six
colleagues would either conclude that this is not a lost opportunity cause
of action, or, if it is, that plaintiff has satisfied the § 2912a(2) require-
ment. For that reason, I concur in the denial order, even though I would
reverse had my position in Stone prevailed.
Plaintiff’s expert testified that the decedent’s premalpractice chance
of survival was 51% and her postmalpractice chance of survival was “5%
or less.” I believe that this is a lost opportunity cause of action because “it
1040 482 MICHIGAN REPORTS
is possible that the bad outcome would have occurred even if the patient
had received proper treatment.” Stone, supra at 218 (MARKMAN, J.,
concurring in the result only). Further, utilizing the formula described in
my opinion in Stone, plaintiff would only satisfy the § 2912a requirement
if the decedent’s postmalpractice chance of surviving was 1% or less. If
her postmalpractice chance was 5%, as plaintiff’s expert admitted that it
might have been, plaintiff would not satisfy the § 2912a requirement.
Because plaintiff has the burden of demonstrating that the § 2912a
requirement is satisfied, and she has not done so here, I would reverse.
However, because my interpretation of § 2912a did not carry the day in
Stone, I accede to the denial order.
SHAFFER V ST JOSEPH’S MERCY HOSPITALS OF MACOMB, No. 135781; Court
of Appeals No. 275299.
MARKMAN, J. (concurring). The trial court denied defendant’s motion
for summary disposition, and the Court of Appeals affirmed. MCL
600.2912a(2) provides, in pertinent part, “In an action alleging medical
malpractice, the plaintiff cannot recover for loss of an opportunity to
survive or an opportunity to achieve a better result unless the opportu-
nity was greater than 50%.” We recently addressed this provision with
some considerable lack of consensus in Stone v Williamson, 482 Mich 144
(2008). Given their decisions in Stone, I believe it is clear that my six
colleagues would either conclude that this is not a lost opportunity cause
of action, or, if it is, that plaintiff has satisfied the § 2912a(2) require-
ment. For that reason, I concur in the denial order, even though I would
reverse had my position in Stone prevailed.
Plaintiff’s expert testified that the decedent’s premalpractice chance
of a better result was “greater than 50%.” However, there is no testimony
regarding the decedent’s postmalpractice chance of a better result. I
believe that this is a lost opportunity cause of action because “it is
possible that the bad outcome would have occurred even if the patient
had received proper treatment.” Stone, supra at 218 (MARKMAN, J.,
concurring in the result only). Further, because plaintiff has presented no
testimony regarding her postmalpractice chance of a better result, it is
impossible to determine whether plaintiff satisfies the § 2912a require-
ment. Because plaintiff has the burden of demonstrating that the § 2912a
requirement is satisfied, and she has not done so here, I would reverse.
However, because my interpretation of § 2912a did not carry the day in
Stone, I accede to the denial order.
ASKEW V DEPARTMENT OF CORRECTIONS, No. 136574; Court of Appeals No.
282916.
KELLY, J. (dissenting). The issue in this case is whether the Court of
Appeals practice of refusing to allow prisoners to commence new appeals
until they have paid outstanding fees and costs is constitutional. It
appears that the practice is consistent with MCL 600.2963(8), which
provides that “[a] prisoner who has failed to pay outstanding fees and
costs as required under this section shall not commence a new civil action
or appeal until the outstanding fees and costs have been paid.” However,
this statute could be unconstitutional because it prevents a person from
having access to the courts.
 ACTIONS ON APPLICATIONS 1041
Plaintiff claims he is indigent. If indigent, he is unable to pay back
fees and costs. Yet, this statute prevents him from accessing the courts
until he pays back fees and costs. Hence, he is in a Catch-22. He cannot
pay the outstanding fees until he acquires the necessary funds, and he
cannot file a new appeal until he pays the outstanding fees.
In an unpublished opinion out of the United States District Court for
the Western District of Michigan, Judge Richard Enslen indicated that he
was troubled by this practice.* I believe this Court should grant leave to
appeal. We should consider whether it is unconstitutional to dismiss an
appeal for failure to pay outstanding fees when a plaintiff can show that
he is indigent.
PEOPLE V RICHMOND, No. 136648; Court of Appeals No. 277012.
KELLY, J. (dissenting). In this criminal case, following the trial court’s
suppression of the prosecution’s key evidence, the prosecution moved to
dismiss the case, and the judge entered a nolle prosequi order. The
prosecution then appealed the adverse evidentiary ruling and the Court
of Appeals reversed the ruling, permitting reinstatement of the charges
against defendant. Defendant has now appealed that decision to this
Court, arguing that the Court of Appeals lacked jurisdiction to hear the
appeal because the issue is moot.
The prosecution lacked standing to appeal in the Court of Appeals. It
failed to obtain a stay of the proceedings, appealing instead from a
dismissal that it had requested. Hence, it was not “an aggrieved party”
and, for that reason, lacked standing.1 Indeed, the prosecutor admits that
“it is the better practice” for the prosecutor to “obtain a motion to
dismiss from the defense or a dismissal on the court’s own motion so as
to avoid a claim that the prosecutor cannot appeal that which itself has
obtained . . . .”
It is beyond argument that the evidentiary issue is moot, and that this
Court does not hear moot issues except under exceptional circumstances
not applicable here. Detroit v Ambassador Bridge Co.2
The prosecution has relied on Dybata v Kistler3 for the proposition
that a claim of appeal may be taken from a stipulated dismissal
necessitated by an evidentiary ruling. Dybata is inapposite here, given
that it was a civil case and the parties had stipulated to the dismissal. The

*
Bridges v Collette, 2008 US Dist LEXIS 58, *7 n 3 (2008). “Having
determined that the suit must be dismissed, the Court is nevertheless
troubled that this prisoner, and others like him, appear to be indigent and
appear to have lawsuits dismissed due to fee balances which they cannot
cure given their indigency. Should this pattern persist, then eventually
the United States Supreme Court would be obliged to address why the
Defendant Judges are not providing equal access to the courts to indigent
prisoners.”
1
MCL 770.3.
2
Detroit v Ambassador Bridge Co, 481 Mich 29, 50-51 (2008).
3
Dybata v Kistler, 140 Mich App 65, 68 (1988).
1042 482 MICHIGAN REPORTS
Court should abide by the precedent on mootness that it set in Ambas-
sador Bridge and the law on standing established by the Legislature in
MCL 770.3.
For these reasons, I would vacate the Court of Appeals judgment and
dismiss the case for mootness.
CAVANAGH, J. I join the statement of Justice KELLY.
MARKMAN, J. (dissenting). I respectfully dissent. “This ‘Court does not
reach moot questions or declare principles or rules of law that have no
practical legal effect in the case before us . . . .’ ” Detroit v Ambassador
Bridge, 481 Mich 29, 50 (2008), quoting Federated Publications v City of
Lansing, 467 Mich 98, 112 (2002). This is because the judiciary is
constrained by our constitution to exercise only the “judicial power.”
Const 1963, art 3, § 2; Nat’l Wildlife Federation v Cleveland Cliffs Iron
Co, 471 Mich 608, 637 (2004). “Perhaps the most critical requirement of
the ‘judicial power’ has been its requirement of a genuine case or
controversy between the parties, one in which there is a real, not a
hypothetical, dispute . . . .” Id. at 615 (citation omitted). “We are to
decide questions arising and undetermined in a case pending, and we may
not tender advice upon matters not in litigation.” Anway v Grand Rapid
R Co, 211 Mich 592, 611-612 (1920) (citation and quotation marks
omitted).
Any existing “controversy” between the parties in this matter was
rendered moot when the case was dismissed on the prosecutor’s motion.
At that time, the action no longer existed and there was no outstanding
controversy for the Court of Appeals or this Court to consider. It is of no
moment, in my judgment, that the prosecutor may now refile the charges
and, assuming the trial court makes the same ruling, appeal that ruling
and end up in the exact same position as we are in now. “ ‘When the
judgment appealed from cannot be affected by the decision of the
appellate court the case becomes a moot one and the appeal should be
dismissed; hearing and deciding such an appeal for the purpose of
establishing a rule of observance in cases subsequently arising is not an
exercise of judicial power.’ ” Id. at 614-615 (citation omitted).
This Court cannot ignore its own precedent. The prosecutor’s dis-
missal rendered this case moot, such that neither the Court of Appeals
nor this Court any longer has jurisdiction to render a decision. Accord-
ingly, I would vacate the Court of Appeals judgment and dismiss this case.
PEOPLE V JAMES WILLIAMS, No. 136903; Court of Appeals No. 285155.
MARKMAN, J. (concurring). I write separately only to reiterate the
concerns expressed in my dissenting statement in People v Wright, 474
Mich 1138 (2006). In Wright, I stated that parolees are entitled to a
determination “regarding how much, if any, additional time must be
served for the parole violation.” Id. at 1140. Currently, parolees receive
no such determination and remain in jail for an indeterminate length of
time for their parole violation until they are sentenced for the newly
committed crime. The result is that similarly situated parolees often
receive an unequal amount of additional time on the basis of “the fortuity
of how long it takes the criminal justice system to proceed to a
defendant’s final sentencing.” Id.
 ACTIONS ON APPLICATIONS 1043
Within the past two years, this Court has received at least 60
applications for leave to appeal on this issue. Regardless of the eventual
outcome in this Court, resolving this issue would provide a significant
benefit to the operations of our state’s legal system, and would provide
important guidance for parole violators, trial judges, and the Department
of Corrections. I believe it is long past time for the Court to conclusively
resolve this question.
CAVANAGH, J. I join the statement of Justice MARKMAN.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Conway, 474 Mich 1140 (2006).
In re VALDEZ (DEPARTMENT OF HUMAN SERVICES V VALDEZ), No. 137468;
Court of Appeals No. 284081.

Leave to Appeal Granted November 5, 2008:

HENRY V DOW CHEMICAL COMPANY, No. 136298. The parties shall include
among the issues to be briefed: (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 (1982); (2) if so, whether the Saginaw Circuit
Court engaged in the required rigorous analysis to determine if class
certification was appropriate; (3) whether the plaintiffs met all of the
requisites for class certification established in MCR 3.501(A)(1), includ-
ing the requirement that questions of law or fact common to the
members of the class predominate over questions affecting only indi-
vidual members; and (4) whether the plaintiffs established that they
suffered injury on a class-wide basis in order to justify class certification.
The Litigation Section of the State Bar of Michigan and the Michigan
Association for Justice are invited to file briefs amicus curiae. Other
persons or groups interested in the determination of the issues presented
in this case may move the Court for permission to file briefs amicus
curiae. Court of Appeals No. 266433.

Leave to Appeal Denied November 5, 2008:

PEOPLE V POLLO, No. 136930; Court of Appeals No. 283107.

KELLY, J. (dissenting). The Court should grant leave to appeal to
examine the questionable practice used by the trial court in this case.
After trial and sentencing, defendant filed a motion for resentencing
asserting that offense variable (OV) 9 had been misscored. Once the error
was corrected, defendant argued, his sentence would no longer fall within
the scored guidelines range, and he should be resentenced. The prosecu-
tor was obliged to acknowledge that OV 9 had been improperly scored.
But, for the first time, it claimed that OV 19 had been improperly scored
as well. OV 19 had been scored at zero at sentencing. The prosecutor now
argued that OV 19 should be scored at 10.
Defendant had slashed his wrists when officers tried to arrest him.
The prosecutor had not argued at sentencing that this desperate behavior
1044 482 MICHIGAN REPORTS
constituted interference with the administration of justice for purposes of
OV 19. It was only after agreeing that OV 9 had been improperly scored
that the prosecutor advanced this position.
The trial court denied defendant’s motion without conducting a
hearing. The court agreed with defendant that OV 9 should have been
scored at zero, but also agreed with the prosecutor that OV 19 should
have been scored at 10 points. As a result, the guidelines range did not
change, and resentencing was unnecessary.
To allow a judge who made a mistake at sentencing to rescore other
offense variables to nullify the damage done by the misscored variable
without a hearing is troublesome. The defendant had no opportunity to
present any objection or input to the rescoring of OV 19. Rather than
ignore this practice, the Court should grant leave to appeal to consider
whether it should be permitted and, if so, under what circumstances.
PEOPLE V TRAPP, No. 136056; Court of Appeals No. 282662.
PEOPLE V TAMMY WILLIAMS, No. 136757; Court of Appeals No. 284938.
HARVEY V GENERAL MOTORS CORPORATION, No. 136801. The application
for leave to appeal the May 23, 2008, order of the Court of Appeals is
denied, because we are not persuaded that the question presented should
be reviewed by this Court. However, we would note that the Workers’
Compensation Appellate Commission erred in stating that an employee
does not need to demonstrate a connection between wage loss and the
work-related injury. An employee is indeed required to demonstrate such
a connection. See MCL 418.301(4); Sington v Chrysler Corp, 467 Mich
144, 160-161 (2002). Court of Appeals No. 281827.
CAVANAGH AND KELLY, JJ. We would deny leave to appeal without the
further statement found in the majority’s order.
CHURCHILL V JP KING AUCTION COMPANY, INC, No. 136851; Court of
Appeals No. 274461.
KELLY, J. I would grant leave to appeal.
PEOPLE V KIRCHER, No. 137426; Court of Appeals No. 287977.

Complaint Dismissed November 6, 2008:

WENDEL V ATTORNEY GRIEVANCE COMMISSION, No. 137076. The complaint

for superintending control is dismissed, because the requests for inves-
tigation are currently pending before the Grievance Administrator, who
has indicated to the Court that the requests will receive heightened
priority. See MCR 9.122(A)(2). AGC : 22999/07 and 22998/07.

Summary Disposition November 7, 2008:

SHANKSTER V FARM BUREAU MUTUAL INSURANCE COMPANY OF MICHIGAN, No.

137543. Pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal,
we remand this case to the Court of Appeals for consideration as on leave
 ACTIONS ON APPLICATIONS 1045
granted. The motion to stay the trial court proceedings is granted, and
the proceedings in the St. Clair Circuit Court are stayed pending the
completion of this appeal. On motion of a party or on its own motion, the
Court of Appeals may modify, set aside, or place conditions on the stay if
it appears that the appeal is not being vigorously prosecuted or if other
appropriate grounds appear. Court of Appeals No. 284850.
CAVANAGH and KELLY, JJ. We would deny leave to appeal.

Leave to Appeal Denied November 7, 2008:

ROYCE V CHATWELL CLUB APARTMENTS, No. 134879. By order of January

22, 2008, the application for leave to appeal the August 7, 2007, judgment
of the Court of Appeals was held in abeyance pending the decision in
Allison v AEW Capital Mgt, LLP (Docket No. 133771). On order of the
Court, the case having been decided on June 25, 2008, 481 Mich 419
(2008), the application is again considered, and it is denied, because we
are not persuaded that the questions presented should be reviewed by
this Court. Although the Court of Appeals relied on Allison v AEW
Capital Mgt, LLP (On Reconsideration), 274 Mich App 663 (2007), and
this Court subsequently reversed that decision in Allison v AEW Capital
Mgt, LLP, 481 Mich 419 (2008), the Court of Appeals determination in the
present case to remand for further proceedings because the trial court
used a legally unsound basis for granting summary disposition to
defendant with regard to MCL 554.139(1) is not in conflict with the
reasoning set forth in this Court’s opinion in Allison. The trial court on
remand must determine whether the defendant owed a duty to the
plaintiff under MCL 554.139(1) on the basis of the evidence the plaintiff
has presented in this case. Reported below: 276 Mich App 389.
CORRIGAN, J. (concurring). I concur in the denial of leave to appeal so
that the trial court can decide whether defendant is entitled to summary
disposition under this Court’s recent decision in Allison v AEW Capital
Mgt, LLP, 481 Mich 419 (2008). I write separately only to express
continued adherence to my concurring opinion in Allison. For the reasons
expressed in that case, I continue to believe that the duty under MCL
554.139(1)(a) to keep the premises and common areas “fit for the use
intended by the parties” extends only to significant, structural defects in
the property, not to transitory conditions such as snow and ice accumu-
lations. Id. at 442.
CAVANAGH, J. (concurring in result only). I agree with the order
denying defendant’s application for leave to appeal. I disagree with the
order, however, to the extent that it implies that defendant’s duty is
dependent on the evidence presented in this case. Defendant has a
statutorily mandated duty to plaintiff to keep all common areas, includ-
ing sidewalks and parking lots, in a condition that is “fit for the use
intended by the parties.” MCL 554.139(1)(a). The duty is not dependent
on the evidence; rather, the trial court must review the evidence to
determine whether defendant violated the statutory duty it owed to
plaintiff.
KELLY, J. I join the statement of Justice CAVANAGH.
1046 482 MICHIGAN REPORTS

Leave to Appeal Denied November 14, 2008:

SBC v J T CRAWFORD, INC, No. 135581; Court of Appeals No. 275334.

CORRIGAN, J. (dissenting). I respectfully dissent from the order
denying defendant’s application for leave to appeal. I would grant
leave to appeal because I believe that the Court of Appeals erred in its
interpretation of the protection of underground utilities act, MCL
460.701 et seq. (commonly known as the MISS DIG act).
SBC sued general contractor defendant Henkels & McCoy, Inc., and
subcontractor defendant J.T. Crawford, Inc., under the MISS DIG act,
in this negligence and strict liability action. Consumers Energy
contracted with an excavator, Henkels, to repair its underground gas
lines at a site in Oakland County. On September 29, 2003, Henkels
called the MISS DIG hotline and gave the location of its planned
excavation. SBC’s representative apparently did not understand Hen-
kels’s request to locate SBC’s underground utilities. Moreover, SBC’s
representative did not contact his supervisor for clarification. In any
event, SBC’s utility lines were not marked. Every other utility
company properly marked their underground utilities at the excava-
tion site.
On October 1, 2003, J.T. Crawford, Inc., quoted a price for pile
driving to Henkels that specified “excavation” as “work by others.” On
October 9, 2003, defendant Henkels contracted with Crawford to
perform pile driving operations. Crawford was to drive steel sheets
into the ground to serve as retaining walls for Henkels’s excavations.
Twenty days after notifying MISS DIG, on October 18, 2003,
Henkels commenced operations by removing concrete, curbs, and
pavement from the excavation site. Henkels also dug test holes to
locate marked underground facilities. Two days later, Henkels placed
its equipment on site and prepared for pile driving, which Crawford
began on October 21, 2003. During its pile driving operations, Craw-
ford transected SBC’s unmarked telecommunications cables. On No-
vember 19, 2003, Henkels’s supervisor e-mailed Crawford and clari-
fied that “[w]e (Henkels & McCoy, Inc.) told J.T. Crawford that he did
not have to make the one call (Miss Dig in Mi.) because we had already
made the call.” Henkels’s supervisor concluded, “I certainly am not an
attorney, but the company that is responsible for the damage to the
lines is not J.T. Crawford but SBC and WOW.”
Defendant Henkels settled with SBC. SBC’s case proceeded against
Crawford. Following discovery, SBC and Crawford filed cross-motions for
summary disposition. The circuit court granted summary disposition in
favor of Crawford. On appeal, the Court of Appeals reversed, concluding
that the ticket issued by MISS DIG had already expired when Crawford
 ACTIONS ON APPLICATIONS 1047
began pile driving under MCL 460.7051 and MCL 460.714.2 The Court of
Appeals remanded for further fact finding regarding whether competent
evidence proved that the damage to SBC’s telecommunications cables
resulted from Crawford’s pile driving. Crawford now seeks leave to
appeal in this Court.
In my view, the Court of Appeals erred when it concluded that
Crawford could not rely on Henkels’s timely notice under the MISS DIG
act, but instead that Crawford was itself required to notify SBC before it
began pile driving. The plain language of MCL 460.705(1) does not
support the Court of Appeals interpretation. “When interpreting stat-
utes, our primary goal is to give effect to the intent of the Legislature.”
Nastal v Henderson & Associates Investigations, Inc, 471 Mich 712, 720

1
MCL 460.705(1) provides, in relevant part:

[A] person or public agency responsible for excavating or

tunneling operations, drilling or boring procedures, or discharge of
explosives in a street, highway, other public place, a private
easement for a public utility, or near the location of utility facilities
on a customer’s property, or demolition of a building containing a
utility facility, shall give written or telephone notice to the asso-
ciation as required in [MCL 460.707] of intent to excavate, tunnel,
discharge explosives, or demolish at least 2 full working days,
excluding Saturdays, Sundays, and holidays, but not more than 21
calendar days, before commencing the excavating, demolishing,
discharging of explosives, tunneling operations, or drilling and
boring procedures. Beginning on October 1, 1990, the notice
required in this subsection shall be given at least 3 full working
days, excluding Saturdays, Sundays, and holidays, but not more
than 21 calendar days, before commencing the excavating, demol-
ishing, discharging of explosives, tunneling operations, or drilling
or boring procedures.
2
MCL 460.714 provides:

In a civil action in a court of this state, when it is shown by

competent evidence that damage to the underground facilities of a
public utility resulted from excavating, tunneling, drilling or
boring procedures, or demolishing operations, or the discharge of
explosives, as described in [MCL 460.703] and that the person
responsible for giving the notice of intent to excavate, tunnel,
demolish, or discharge explosives failed to give the notice, or the
person did not employ hand-digging or failed to provide support,
the person shall be liable for the resulting damage to the under-
ground facilities, but the liability for damages shall be reduced in
proportion to the negligence of the public utility if it fails to comply
with [MCL 460.708].
1048 482 MICHIGAN REPORTS
(2005). We review the language of the statute itself and give the words
used by the Legislature their common and ordinary meaning. Id. “If the
statutory language is unambiguous, we must presume that the Legisla-
ture intended the meaning it clearly expressed and further construction
is neither required nor permitted.” Id.
MCL 460.705(1) provides that “a person or public agency responsible
for excavating or tunneling operations” must give notice of its intent to
excavate “at least 3 full working days, excluding Saturdays, Sundays, and
holidays, but not more than 21 calendar days before commencing” with
excavation operations. Here, the person “responsible for the excavating
or tunneling operation” was the excavator and general contractor,
Henkels. To perform repairs on Consumers Energy’s underground gas
lines, Henkels oversaw an excavation operation. As one part of its larger
excavation operation, Henkels subcontracted with Crawford to perform
pile driving.
Under the plain language of MCL 460.705(1), only the responsible
party is required to furnish notice. As the Court of Appeals interpreted
the statute, however, even those parties not responsible for the overall
operation, including various subcontractors like Crawford, also must give
notice. This reading injects additional language into the statute, namely
that “[a] person or public agency responsible for excavating or tunneling
operations or responsible for any related work therein” must provide
notice before beginning work to guard against liability. The Legislature
clearly expressed that only “[a] person or public agency” responsible for
the excavation operation, and not that every “person or public agency”
somewhat responsible for any part of the operation must give notice. The
Court of Appeals erred by failing to give effect to the unambiguous
statutory language as written.
My view is consistent with a recent case construing the MISS DIG act.
United States District Court Judge Gordon Quist also concluded that
only the responsible party must furnish notice under the MISS DIG act.
Amoco Pipeline Co v Herman Drainage Systems, Inc, 212 F Supp 2d 710,
718 (WD Mich, 2002). “Requiring the person actually performing the
excavation to notify MISS-DIG thus provides certainty because there can
be no question among several possible parties about who should give the
notice.” Id. Judge Quist reasoned, “The fact that one person may provide
notice and another person may perform the excavating does not persuade
this Court that someone other than the person (be it an individual, a
corporation, etc.) responsible for performing the excavation is respon-
sible for giving the notice.” Id.
The Court of Appeals further erred when it determined that the MISS
DIG ticket issued to Henkels on September 29, 2003, had expired when
Crawford began pile driving on October 21, 2003. The Court of Appeals
wrongly looked to the time that Crawford began pile driving, and not
when Henkels began to prepare the excavation site. Giving the word
“commence” its plain and ordinary meaning, the Court of Appeals noted
that the ordinary definition of “commence” is “to begin; start.” The
American Heritage Dictionary (2006). Similarly, the Court of Appeals
defined “begin” as “to take the first step in performing an action.” On the
basis of these definitions, the Court of Appeals stated, “we believe the
 ACTIONS ON APPLICATIONS 1049
first step in performing the action of pile driving occurs when a pile
enters the ground.” SBC v J T Crawford, Inc, unpublished opinion per
curiam of the Court of Appeals, issued November 27, 2007 (Docket No.
275334), p 6. Of course, pile driving commences when a pile is driven into
the ground. But the Court of Appeals misconstrued the statutory
language. The true question under the statute is when does the excava-
tion operation begin, not when are various parts of the operation
undertaken.
The Court of Appeals reading ignores the pertinent facts. The
excavation operation was underway when Crawford began pile driving.
Giving effect to the plain meaning of the word “commence” necessitates
that we look back to the actual first step in performing the overall
excavation. The first step of the excavation operation occurred on
October 18, 2003, when Henkels began removing curbs and pavement.
Because the removal of curbs and pavement was the true “commencing”
of the excavation, 21 days had not elapsed between when the MISS DIG
ticket was issued on September 29, 2003, and when Henkels commenced
the excavation operation on October 18, 2003.
Because the notice requirements under the MISS DIG act were met,
the Court of Appeals should not have remanded for further factual
determinations regarding whether the damage to SBC’s lines resulted
from Crawford’s pile driving. Because the trial court properly interpreted
the statute, I would grant Crawford’s application for leave to appeal and
reinstate the trial court’s decision granting summary disposition to
Crawford.
WILCOX V MUNGER, No. 135702; Court of Appeals No. 275329.
MARKMAN, J. (concurring). Although I agree with the result reached by
the Court of Appeals, I respectfully disagree with aspects of its analysis.
While on duty as a police officer, Officer Keith P. Heika sexually
assaulted Janeane Wilcox. After Heika committed suicide, Wilcox sued
both Heika’s estate and the Michigan Municipal Risk Management
Authority (MMRMA). The MMRMA provides its members coverage for
“personal injury” and “wrongful act[s]” that result in an award of money
damages. As defined in the MMRMA’s policy, personal injury consists of
the “violation of civil, statutory or constitutional rights, discrimination or
harassment arising out of employment or law enforcement operations.”
Only “members” are covered by this policy, which encompasses any
employee “while acting within the scope of their official duties or
operations on behalf of the Member [employer].” Thus, the question
becomes whether Heika was a member acting within the scope of his
official duties or operations on behalf of his employer.
In Zsigo v Hurley Med Ctr, 475 Mich 215, 221 (2006), this Court held
that an employee who sexually assaults a victim while “ ‘purport[ing] to
act or to speak on behalf of the principal . . . or [who] was aided in
accomplishing the tort by the existence of the agency relationship’ ” is
“ ‘clearly [acting] outside the scope of [his] employment.’ ” (Citation
omitted.) Thus, we have concluded that an employee who would have
been unable to commit a tort “but for” his status as an employee is not
acting within the scope of his employment. Despite Zsigo, the Court of
1050 482 MICHIGAN REPORTS
Appeals, in concluding that Heika was a covered member acting within
the scope of his employment, stated that “but for Heika’s status as a
police officer and his response to a call as part of his official duties he
would not have gone inside plaintiff’s home,” where the assault occurred.
Wilcox v Munger, unpublished opinion per curiam of the Court of
Appeals, issued December 20, 2007 (Docket No. 275329), at 3. Because
Zsigo explicitly rejected this “but for” analysis, the Court of Appeals
erred, in my judgment, in ignoring this Court’s directive regarding what
falls outside the scope of one’s employment.
The Court of Appeals also offered a separate rationale for why Heika
was acting within the scope of his employment. Without specifically
referencing Zsigo, the Court of Appeals noted that the MMRMA’s policy
purported to cover personal injury including “ ‘violation[s] of civil,
statutory or constitutional rights, discrimination or harassment,’ ” id.,
which Zsigo would have excluded. In rejecting the MMRMA’s definition
of “scope of employment,” which was based on Zsigo, the Court of
Appeals stated that, “[p]er the coverage documents, Heika is afforded
coverage for the claim of sexual assault (wrongful act) committed while
he was acting within the scope of his employment, yet by virtue of
committing the personal injury (or wrongful act) action, is deemed to
have not been acting within the scope of his employment.” Id. The Court
of Appeals reasoned that this result is “ambiguous” and that such
ambiguity must be resolved against the drafter (MMRMA), thereby
entitling Heika to coverage. The Court of Appeals rationale again, in my
judgment, is incorrect.
Courts should be exceedingly loath to find ambiguity, because there is
rarely any clearcut rule of decision-making under such circumstances
and decisions often tend to partake of quasi-legislative exercises of
judicial power. As this Court stated in Lansing Mayor v Pub Service
Comm, 470 Mich 154, 165-166 (2004), ambiguity does not exist unless
two provisions “irreconcilably conflict” with one another or when one
provision is “equally susceptible” to more than one meaning. The
MMRMA’s policy, while it is perhaps unclear or could have been more
precise, is not ambiguous. When analyzing the definition of “personal
injury” in conjunction with “scope of employment,” the MMRA’s policy is
explicable under Zsigo because it can reasonably be interpreted to
provide coverage to an employee who infringes the rights of another at
the instruction of the employer. For example, this policy would cover a
situation in which a police department routinely encourages, or requires,
its officers to arrest a disproportionate number of minorities or discrimi-
nate against women when hiring. This interpretation would give full
effect to the MMRMA’s policy, which covers members who are violating
the rights of other individuals with the approval of their employers, while
simultaneously giving due deference to this Court’s definition of “scope of
employment” in Zsigo. Thus, the Court of Appeals is incorrect that the
policy’s coverage of personal injury cannot be read in harmony with
Zsigo’s definition of “scope of employment.” However, despite my dis-
agreement with the Court of Appeals’ analysis, I believe that it correctly
concluded that Heika is entitled to coverage.
 ACTIONS ON APPLICATIONS 1051
The MMRMA’s policy covers both “personal injury” and “wrongful
acts.” The policy defines a wrongful act as “an actual or alleged error,
misstatement, act, omission, neglect or breach of official duty including
misfeasance, malfeasance and nonfeasance.” (Emphasis added). When
this provision is contrasted with Zsigo’s definition of “scope of employ-
ment,” it becomes reasonably clear that the parties contractually altered
what constitutes “scope of employment.” Indeed, the definition of
“wrongful acts” specifically contemplates coverage for a breach of official
duties, which is the exact type of conduct that was excluded in Zsigo.
Because the MMRMA contractually agreed to include liability for a
breach of official duties, which might otherwise fall outside an employee’s
scope of employment, Heika’s estate, I believe, is entitled to coverage
under the policy.
In sum, although the Court of Appeals erred by (1) applying the “but
for” definition of “scope of employment” that this Court rejected in Zsigo
and (2) finding the contract “ambiguous,” it nonetheless reached the
correct result because the contract itself expanded the definition of
“scope of employment” to include Heika’s breach of his official duties.
PEOPLE V BANKS, No. 136524. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 283547.
CORRIGAN, J. (concurring). I concur in the order denying leave to
appeal because I do not believe a trial court is required to assess ability
to pay under People v Dunbar, 264 Mich App 240 (2004), before requiring
a defendant who is in prison to commence payment of the cost of a court
appointed attorney.
In 2003, defendant pleaded no contest to a charge of assault with a
dangerous weapon and was sentenced to probation. The January 21,
2003, judgment of sentence required her to pay attorney fees in an
amount later calculated to be $810. Defendant failed to pay the fees.
After she later pleaded guilty of second-degree murder in connection with
a crime committed on October 7, 2006, defendant was sentenced to 22 to
40 years of imprisonment. After she began serving her prison sentence
and obtained employment in prison, the trial court entered an “Order to
Remit Prisoner Funds for Fines, Costs, and Assessments,” requiring the
Department of Corrections to collect 50 percent of the funds defendant
receives over $50 a month and remit the funds to Macomb County.
Defendant then filed a motion to modify the attorney fee order in the
trial court. Citing Dunbar, she asked the court to suspend restitution
payments to the county until she was released from prison and at that
point conduct a Dunbar hearing to assess her ability to pay. The trial
court denied the motion on November 30, 2007. Defendant filed an
application for leave to appeal in the Court of Appeals, and the Court
denied leave to appeal under MCR 6.508(D).
I concur in this Court’s denial order because I do not believe that the
trial court was required to assess defendant’s ability to pay under Dunbar
before entering the order to remit prisoner funds. The Legislature has
specifically provided a procedure by which counties are to recoup attor-
ney fees from defendants who are sentenced to prison. MCL
1052 482 MICHIGAN REPORTS
769.1k(1)(b)(iii) explicitly gives a trial court the authority to order
reimbursement of attorney fees,3 and MCL 769.1l4 requires the Depart-
ment of Corrections to deduct funds from the prisoner’s account upon
receiving such an order. This statutory scheme leaves no room for a
Dunbar requirement where the defendant is in prison, so defendant here
is ineligible for a Dunbar hearing.
KELLY, J. (dissenting). I dissent from the order denying leave to
appeal. I would remand this case for a hearing to assess defendant’s
ability to pay now and in the future pursuant to People v Dunbar.1
Justice CORRIGAN is correct that the trial court was not required to
hold a Dunbar hearing to assess the defendant’s ability to pay before
entering the order to remit prisoner funds. But the Dunbar requirements
should have been adhered to earlier when defendant was sentenced and
assessed attorney fees.
In Dunbar, the Court of Appeals held that a trial court that orders a
convicted defendant to reimburse fees for his court-appointed attorney
must provide “some indication . . . that it considered defendant’s ability
to pay.”2 The Court also held that “in most cases, challenges to the

3
MCL 769.1k(1)(b)(iii) permits the trial court to “impose . . . [t]he
expenses of providing legal assistance to the defendant.”
4
MCL 769.1l provides:

If a prisoner under the jurisdiction of the department of

corrections has been ordered to pay any sum of money as
described in section 1k and the department of corrections
receives an order from the court on a form prescribed by the
state court administrative office, the department of corrections
shall deduct 50% of the funds received by the prisoner in a
month over $50.00 and promptly forward a payment to the
court as provided in the order when the amount exceeds
$100.00, or the entire amount if the prisoner is paroled, is
transferred to community programs, or is discharged on the
maximum sentence. The department of corrections shall give an
order of restitution under section 20h of the corrections code of
1953, 1953 PA 232, MCL 791.220h, or the crime victim’s rights
act, 1985 PA 87, MCL 780.751 to 780.834, priority over an order
received under this section.
MCL 769.1k and MCL 769.1l became effective on January 1, 2006,
which is after the trial court entered the judgment of sentence requiring
defendant to pay attorney fees, but before it entered the order to remit
prisoner funds.

1
People v Dunbar, 264 Mich App 240 (2004).
2
Dunbar, supra at 254-255.
 ACTIONS ON APPLICATIONS 1053
reimbursement order will be premature if the defendant has not been
required to commence repayment.”3
In this case, at Macomb County’s request, the trial court entered
an order to remit prisoner funds for fines, costs, and assessments on
October 2, 2007. Defendant filed a motion for relief from judgment on
November 15, 2007. Therefore, defendant timely challenged the re-
imbursement order pursuant to Dunbar. There is no indication on the
record that the trial court ever assessed defendant’s ability to pay
attorney fees.
In addition, the statutes cited by Justice CORRIGAN are inapplicable
and do not support her contention that defendant “is ineligible for a
Dunbar hearing.” Neither MCL 769.1k nor MCL 769.1l diminishes a
trial court’s responsibility to assess a defendant’s ability to pay before
ordering restitution. The Court of Appeals recently held explicitly that
MCL 769.1k “does not eliminate the requirement, set forth in Dunbar,
supra, that the trial court consider a defendant’s ability to pay prior to
ordering reimbursement of appointed counsel costs.”4
Finally, MCL 769.1l does not remove the need for a trial court to
conduct a Dunbar hearing for all defendants, including prisoners. It is a
ministerial statute outlining the procedures that the Department of
Corrections must follow when removing funds from a prisoner’s account.
For these reasons, I would remand this case to the trial court for a
Dunbar hearing.
SMITH V SMITH, No. 136697; Court of Appeals No. 273547.
CORRIGAN, J. (dissenting). I would grant leave to appeal because I
believe that the test for “cohabitation” that the Court of Appeals
adopted emphasizes definitions of cohabitation that do not square
with the contemporary living conditions of cohabiting couples. Be-
cause a majority of American couples now cohabit before marriage, the
definitions and standards we employ pose questions of jurisprudential
significance in cases where the parties have failed to define their
terms. Moreover, the Court of Appeals opinion is too uncertain. It
leaves too much room for litigation over the essential features of
cohabitation that would terminate spousal support obligations.
I note preliminarily that a great deal of time and expense could be
saved in postjudgment proceedings if the parties would only define
their terms. We construe judgments of divorce like contracts. Beason
v Beason, 435 Mich 791, 798-799 n 3 (1990). By defining terms such as
“cohabitation,” parties ensure that courts will construe the language
used in a manner that comports with the parties’ understanding of
their agreement.

3
Id. at 256, citing People v Guajardo, 213 Mich App 198, 202 (1995);
People v LaPine, 63 Mich App 554, 556, 558 (1975).
4
People v Trapp (On Remand), 280 Mich App 598 (2008). This Court
denied leave to appeal in Trapp. 482 Mich 1044 (2008).
1054 482 MICHIGAN REPORTS
I. UNDERLYING FACTS AND PROCEDURAL HISTORY

The parties’ 1999 judgment of divorce obligates plaintiff ex-husband

to pay defendant ex-wife $3,500 a month in spousal support. That
obligation terminates “upon such time as the Defendant cohabitates with
a non-related male.” The term “cohabitation” was not defined in the
judgment. In January 2005, plaintiff moved to terminate spousal sup-
port, alleging that defendant had been cohabiting with her partner. The
trial court held an evidentiary hearing, during which defendant’s partner
testified that he and defendant had been in a committed relationship
since December 2002. Although the couple had plans to marry, defendant
told her partner that she did not want to marry or live together until her
spousal support ends when her youngest child reaches the age of 18. The
couple also does not share bank accounts or credit cards. Evidence was
also adduced that defendant’s partner used her address to receive mail
from his bank and documents pertaining to his divorce. Although
defendant’s partner claimed that he moved into his ex-wife’s home in
May 2004, when he returned to Michigan from Georgia, and lived there
until April 2005, his ex-wife testified that he never lived with her during
that time. He also claimed that he began staying at the home he formerly
shared with his ex-wife approximately three days a week beginning in
April 2005, but his ex-wife observed that the minimal utility bills from
their former home during that period were inconsistent with his claim.
After the evidentiary hearing, the trial court identified a 1983 test for
cohabitation from Ohio, found that defendant and her partner were not
cohabiting, and denied plaintiff relief. On appeal, the Court of Appeals
affirmed.
The Court of Appeals initially cited the three-part Ohio test used by
the trial court:
“First, there must be an actual living together, that is, the man
and woman must reside together in the same home or apartment.
Secondly, such a living together must be of a sustained duration.
Third, shared expenses with respect to financing the residence
(i.e., rent or mortgage payments) and incidental day-to-day ex-
penses (e.g., groceries) are the principal relevant considerations.”
[Smith v Smith, 278 Mich App 198, 202 (2008), citing Birthelmer
v Birthelmer, unpublished opinion of the Court of Appeals of Ohio
for the Sixth District, issued July 15, 1983 (Docket No. L-83-046),
1983 WL 6869, *4, as affirmed and applied in Dickerson v Dicker-
son, 87 Ohio App 3d 848 (1993), and Moell v Moell, 98 Ohio App 3d
748 (1994).]

It also stated that “[c]ohabitation requires more than briefly living

together or regularly engaging in sexual activity. Pursuant to the
dictionary definition of cohabitation, the couple must be ‘living togeth-
er . . . as partners in life,’ or ‘dwelling together . . . in the manner of
husband and wife.’ ” Smith, supra at 202-203.
 ACTIONS ON APPLICATIONS 1055
II. OBJECTIONS TO THE COURT OF APPEALS ANALYSIS

The Court of Appeals ultimately adopted a totality of the circum-

stances test and stated that no one factor was dispositive. Smith, supra at
203-204. Nonetheless, its apparent endorsement of the Ohio test raises
doubts about the standard it articulates. Proof of shared expenses,
sustained duration, and a marriage-like commitment are all potentially
relevant factors, but they are not the sine qua non in determining
whether cohabitation exists. Nor do I believe that these factors amount to
the “principal relevant considerations,” id. at 202, in determining
whether a couple is cohabiting.
Many dictionary definitions include the analogy to marriage that our
Court of Appeals cited, see, e.g., Merriam Webster’s Online Dictionary
(11th ed) (“to live together as or as if a married couple”); Webster’s New
World Law Dictionary (“to live together as husband and wife, esp. when
not married”); Law.com Dictionary (“[l]iving together in the same
residence, generally either as husband and wife or for an extended period
of time as if the parties were married”). Others, however, define cohabi-
tation as merely living together in a sexual or intimate relationship, see,
e.g., Cambridge Dictionary of American English (“(esp. of a man and
woman who are not married) the act of living together”); The Online
Plain Text English Dictionary (“[t]he living together of a man and
woman in a supposed sexual relationship”); Webster’s Revised Un-
abridged Dictionary (1913 ed) (same); Wiktionary (“[a]n emotional and
physical intimate relationship which includes a common living place and
which exists without legal or religious sanction”). I believe that the latter
definitions provide a more accurate reflection of contemporary cohabit-
ing arrangements.
Recent social science research suggests that the commitments of
cohabiting couples are not equivalent to those of married couples. On the
contrary, “the behaviors, understandings, and attitudes of cohabitants
typically differ dramatically from those of married couples.” Garrison,
Marriage Matters: What’s Wrong with the ALI’s Domestic Partnership
Proposal, Reconceiving the Family, Critique on the American Law Insti-
tute’s Principles of the Law on Family Dissolution (New York: Cambridge
University Press, 2006), p 307. In fact, “cohabitants overwhelmingly see
cohabitation as a substitute for being single, not for being married.” Id.
at 310. Moreover, Professor Garrison argues that cohabitants “do not
typically follow the relational norms associated with marriage”: they are
“much less likely than married couples to have children together, to pool
their resources, to feel secure and unconflicted in their relationships, to
value commitment, or to express commitment to their partners.” Id. at
308-309. A test that essentially equates cohabitation with common-law
marriage fails to account for the significant differences between married
and cohabiting couples.
Our survey of out-of-state caselaw reveals that many cases, like those
cited by our Court of Appeals, define “cohabitation” in a manner that
does not reflect the current reality, as documented by the social science
research mentioned above. These cases view cohabitation as a substitute
for marriage, and inappropriately emphasize the financial arrangements
1056 482 MICHIGAN REPORTS
and duration of the new relationship. See, e.g., Rose v Csapo, 359 NJ
Super 53, 59, 62 (2002); Pellegrin v Pellegrin, 31 Va App 753, 767 (2000);
Konzelman v Konzelman, 158 NJ 185, 202 (1999); Sanders v Burgard,
715 So 2d 808, 811-812 (Ala Civ App, 1998); Gordon v Gordon, 342 Md
294, 308-310 (1996); Moell v Moell, supra at 883-884.
Some courts, however, have recognized that proof of shared expenses
should not be a controlling factor. In In re Marriage of Edwards, 73 Or
App 272, 279-280 (1985), the Oregon Court of Appeals “decline[d] to
adopt [the ex-]wife’s suggestion that financial benefit to the supported
spouse that permanently affects the need for the decreed spousal support
is a prerequisite to a finding of cohabitation.” It agreed with the trial
court that the ex-wife was cohabiting, even though the couple had kept
their finances separate. Id. at 275, 279. Similarly, in Bell v Bell, 393 Mass
20, 22-23 (1984), the Supreme Judicial Court of Massachusetts concluded
that the ex-wife was living with a man “so as to give the outward
appearance of marriage,” and ordered the termination of alimony pay-
ments, even though the two maintained separate bank accounts and
never commingled any assets.
Moreover, New York’s highest court very recently reversed the finding
of the intermediate appellate court that “cohabitation” had a plain
meaning under New York caselaw that contemplated changed economic
circumstances and required shared finances. The majority held that the
term was ambiguous as used in the parties’ settlement agreement
because neither New York caselaw nor dictionary definitions revealed a
plain meaning, and courts of other states had not uniformly defined the
term. Graev v Graev, 11 NY3d 262, 270-271 (2008). The dissenting judge
disagreed because he concluded that the inclusion of a specific period
rendered the cohabitation provision unambiguous (the agreement pro-
vided that the ex-husband’s maintenance obligation would terminate in
the event of the ex-wife’s cohabitation with an unrelated adult for a
period of 60 “substantially consecutive” days). Graev, supra at 277
(Graffeo, J., dissenting). Significantly, the majority and dissent agreed
that financial interdependence is not a sine qua non of cohabitation. The
dissent stated:
Today, as a Court, we unanimously reject the rule that eco-
nomic interdependence is a sine qua non of cohabitation. Aside
from the textual and contractual considerations, that rule makes
little sense practically because a party receiving maintenance can
easily evade the consequence of a termination provision and
receive more than the benefit of his or her bargain. Mrs. Graev and
M.P., for example, would be free to continue their relationship in
its current form indefinitely without violating the termination
provision—they could be together 24 hours a day and sleep
together every night for years—but as long as they maintain
separate bank accounts and do not share expenses, they would not
be cohabitating under the economic unit concept. This is not how
a cohabitation clause is supposed to work; nor is it what other
 ACTIONS ON APPLICATIONS 1057
parties anticipate when including similar cohabitation clauses in
their agreements. [Id. at 279 (Graffeo, J., dissenting).]

The facts of this case are somewhat similar to the hypothetical

situation Judge Graffeo describes. Defendant and her partner have
decided to postpone marriage until her spousal support automatically
expires. Defendant’s partner claims to have resided with his ex-wife, then
at least part-time at his former marital home, rather than with defen-
dant, but his ex-wife’s testimony about the mailing address he used and
the minimal utility bills suggest that these claims were a further attempt
to avoid triggering the termination provision in the parties’ judgment of
divorce. I share Judge Graffeo’s view and the view of the Graev majority
that a test that focuses primarily on the degree of the parties’ financial
interdependence does not fully capture the reality of “cohabitation” in
cases like this.
I would grant leave to appeal to clarify that no single factor is
dispositive under a totality of the circumstances test for cohabitation.
The primary goal of the finder of fact should be to distinguish between
dating relationships and cohabitation by first considering the extent to
which the parties share a common residence. Courts should thus consider
such factors as whether each party has keys to the residence, keeps
personal items there, and uses it as a mailing address; whether the
parties share household duties; and the amount of time each party spends
at any separate residence. Second, courts should consider the extent to
which the parties have an intimate relationship or engage in sexual
relations; they need not inquire whether the couple’s commitment to one
another resembles a marriage. The social science data show otherwise.
Third, while courts may consider the parties’ financial situation,
including shared expenses and joint accounts, I would clarify that sharing
expenses is not controlling. As Judge Graffeo notes in his dissent,
financial interdependence is not the “sine qua non” of cohabitation. It is
possible that one cohabiting party would pay all the expenses. I would
also emphasize that the length of the parties’ relationship is not
dispositive.
In short, I believe that the problem posed by this case is jurispruden-
tially significant. I would grant leave to appeal to explore the parameters
of an appropriate test for cohabitation.

Leave to Appeal Denied November 21, 2008:

TERLECKI V SILVER LAKE PROPERTY ASSOCIATION OF INDIAN RIVER, No.

136509; reported below: 278 Mich App 644.
CAVANAGH, J. I would grant leave to appeal.
WEAVER, J. (dissenting). I dissent from the order by the majority of
four (Chief Justice TAYLOR and Justices CORRIGAN, YOUNG, and MARKMAN)
to deny leave to appeal in this case. I voted to grant the application for
leave to appeal because I dissented from the decision of the majority of
four in Trentadue v Buckler Automatic Lawn Sprinkler Co, 479 Mich 378,
1058 482 MICHIGAN REPORTS
407-408 (2007) (WEAVER, J., dissenting) to eliminate the common-law
practice of tolling accrual based on discovery.
Under Johnson v Caldwell, 371 Mich 368, 379 (1963), a statutory
period of limitations does “not start to run until the date of discovery, or
the date, when by the exercise of reasonable care, plaintiff should have
discovered the wrongful act.” (emphasis added). Because I believe that
the majority of four erred in overruling Johnson v Caldwell, I would
grant leave to appeal in this case to consider the correctness of the
decision in Trentadue.
KELLY, J. I join the statement of Justice WEAVER.
PEOPLE V BOADWAY, No. 136779; Court of Appeals No. 281469.
MARKMAN, J. (concurring). I concur in denying leave to appeal, but I
write separately to address Justice KELLY’s concern that the costs
imposed by MCL 769.1k qualify as a “punishment.”
The Ex Post Facto Clause of the Michigan Constitution, Const 1963,
art 1, § 10, involves two elements: (1) whether a law is retrospective; and
(2) whether it disadvantages the offender. People v Davis, 181 Mich App
354, 357 (1989).
First, Justice KELLY correctly notes that MCL 769.1k is retrospective.
In People v Stevenson, 416 Mich 383, 396 (1982), this Court adopted Chief
Justice Chase’s often-quoted statement in Calder v Bull, 3 US (3 Dall)
386, 390 (1798), defining an ex post facto law:

“1st. Every law that makes an action done before the passing of
the law; and which was innocent when done, criminal; and
punishes such action. 2d. Every law that aggravates a crime, or
makes it greater than it was, when committed. 3d. Every law that
changes the punishment, and inflicts a greater punishment, than
the law annexed to the crime, when committed.” [Emphasis
added.]

This language requires that any statute imposing additional “punish-

ments” be enacted after the crime has been committed in order to
constitute an ex post facto law. It is undisputed that MCL 769.1k was
enacted after defendant committed the crimes at issue. Thus, the costs
imposed pursuant to that statute are unquestionably retrospective.
Second, a statute disadvantages an offender if it “increases a punish-
ment.” People v Harvey, 174 Mich App 58, 60 (1989) (quotation marks
and citation omitted). A punishment is a “deliberate imposition, by some
agency of the state, of some measure intended to chastise, deter or
discipline an offender.” People v Golba, 273 Mich App 603, 620 (2007)
(quotation marks and citation omitted). Further, in People v Peters, 449
Mich 515, 523 (1995), we held that “the fact that defendant . . . will
experience some ‘financial pain’ does not transform [a] restitution order
into a primarily penal sanction.” Peters explained that restitution is
meant to “cover the costs incurred” by the state, and thus is not a
 ACTIONS ON APPLICATIONS 1059
primarily penal sanction. Id. at 524. Likewise, the imposition of “state
costs” following a conviction also does not constitute a “primarily penal
sanction.”
MCL 769.1k mandates that, after a defendant has been convicted,
“[t]he court shall impose the minimum state costs.” Unlike Justice
KELLY, I do not believe “minimum state costs” qualify as a “punishment.”
“Cost” is defined as “the price paid to acquire, produce, accomplish, or
maintain anything.” Random House Webster’s College Dictionary (1991).
Thus, the “minimum state costs” imposed by this statute contemplate
that the defendant will bear the burden of “the price [the state] pa[ys] to
acquire” a conviction or “maintain[ing]” the defendant’s living condi-
tions while in jail. Shifting the financial burden from the state to the
defendant is not intended to “chastise, deter or discipline an offender.”
Rather, it is intended to prevent the taxpayers of this state from bearing
at least some of the costs generated by the defendant’s actions. Thus,
“minimum state costs” do not constitute a “punishment.”*
In sum, although MCL 769.1k is, in fact, retrospective in relation to
defendant, the costs imposed by this statute do not constitute a punish-
ment. As a result, there is no violation of the Ex Post Facto Clause of the
Michigan Constitution.
KELLY, J. (dissenting). The Court should grant leave to appeal to
consider whether MCL 769.1k, as applied in this case, violates the Ex
Post Facto Clause of the Michigan Constitution.1
The test for determining whether a criminal law violates the Ex Post
Facto Clause has two elements: (1) the law must be retrospective, and (2)
it must disadvantage the offender.2 A statute disadvantages an offender
if (1) it makes punishable an act that was not punishable, (2) it makes the
act a more serious offense, (3) it increases a punishment, or (4) it allows
the prosecutor to convict on less evidence.3
It is well-settled that “[a] trial court may only require a convicted
defendant to pay costs where such a requirement is expressly authorized
by statute.”4 As of January 1, 2006, MCL 769.1k mandated the collection
of minimum state costs under MCL 769.1j and authorized a court to
impose additional costs, attorney fees, or a fine.

*
In People v Slocum, 213 Mich App 239 (1995), a case cited by Justice
KELLY and one that has been cited by at least nine unpublished Court of
Appeals opinions, the Court of Appeals held that a restitution statute
authorizing the trial court to impose costs on a defendant constituted a
“punishment.” In doing so, it stated that “[Peters] determined that
restitution is a form of punishment.” Id. at 244. This seems exactly the
opposite of what Peters held.
1
Const 1963, art 1, § 10.
2
People v Davis, 181 Mich App 354, 357 (1989), citing Weaver v
Graham, 450 US 24, 29 (1981).
3
People v Moon, 125 Mich App 773, 776 (1983).
4
People v Jones, 182 Mich App 125, 126 (1989).
1060 482 MICHIGAN REPORTS
Defendant committed the charged offenses before the enactment of
MCL 769.1k but was not prosecuted, convicted, and sentenced until after
its effective date. I agree with Justice MARKMAN that a newly enacted law
that increases a punishment “at any time after the crime has been
committed” violates the Ex Post Facto Clause. However, I disagree with
his assertion that the imposition of costs under MCL 769.1k does not
qualify as a “punishment.”
Justice MARKMAN’s conclusion conflicts with past decisions of the
Court of Appeals. In People v Peters (After Remand),5 that court noted the
punitive aspects of restitution statutes. It concluded that, because the
language of the statute at issue authorized restitution “in addition to or
in lieu of any other penalty,”6 the imposition of restitution constituted a
penalty.7 MCL 769.1k similarly mandates the imposition of minimum
costs but gives the court discretion to assess additional costs or fines
against a defendant.
In People v Slocum,8 the Court of Appeals relied on Peters to vacate
the trial court’s imposition of extradition costs on a defendant. In that
case, the statute had not been amended to authorize costs until after the
defendant’s conviction. Its application would have increased the amount
of restitution owed. After determining that the statute would apply
retrospectively, the Court held that, in that case, it would violate the Ex
Post Facto Clause.9
Finally, in People v Pieske,10 the Court of Appeals vacated an order for
costs under MCL 769.1k. The same statute and the same costs are
involved in this case. The Court held that the imposition of costs violated
the Ex Post Facto Clause because MCL 769.1k had not yet taken effect at
the time that the defendant was sentenced.
Numerous Court of Appeals opinions have found Ex Post Facto Clause
violations for the imposition of costs where the applicable statute was
amended after a defendant committed a crime. Given the disagreement
on the Court concerning this issue, we should grant leave to appeal to
resolve it.
TAYLOR V TAYLOR, No. 137258; Court of Appeals No. 281555.
YOUNG, J. (concurring). I concur in the order denying leave to appeal.
According to the record, the “lynch pin” of the trial court’s decision to
send the minor child to a public school was MCL 722.23(j), which
considers the “willingness and ability of each of the parties to facilitate

5
People v Peters (After Remand), 205 Mich App 312 (1994), rev’d on
other grounds 449 Mich 515 (1995).
6
MCL 780.766(2).
7
Peters, supra at 319.
8
People v Slocum, 213 Mich App 239 (1995).
9
Id. at 244.
10
People v Pieske, unpublished opinion per curiam of the Court of
Appeals, issued January 31, 2008 (Docket No. 273291).
 ACTIONS ON APPLICATIONS 1061
and encourage a close and continuing parent-child relationship between
the child and the other parent . . . .”
The record amply supports the trial court’s conclusion that the two
parents simply “do not communicate,” and that the mother’s desire to
homeschool the child would result in the father being precluded from
having any “say or involvement in his child’s education.” While regret-
table, I do not view the stray remarks of the trial court, which appear to
reflect a view of homeschooling as less beneficial than a public school, as
altering the legitimacy or primacy of the trial court’s best interests
determination.
TAYLOR, C.J., and WEAVER, and CORRIGAN, JJ. We join the statement of
Justice YOUNG.
MARKMAN, J. (dissenting). I respectfully dissent. Instead of denying
leave to appeal, I would remand to the trial court for reconsideration of
its order resolving the parties’ dispute concerning their child’s education.
The trial court resolved this dispute in favor of the public schooling
preferred by the father and in opposition to the homeschooling preferred
by the mother. Although I take no position on the merits of the trial
court’s ultimate decision, I believe that the court erred by at least
appearing to take improper factors into account in reaching this decision.
In particular, I believe that the trial court erred by appearing to
substitute its own generally unfavorable attitudes concerning home-
schooling for the public policies of this state, which accord no preference
for either public schooling or homeschooling. While the trial court is
entitled to its own views concerning the respective merits of these
educational approaches, it is not entitled to replace the policies of
Michigan with such personal views.
Here, the court concluded with regard to the parties’ six-year-old
daughter’s educational prospects that “she doesn’t seem to have a
problem, I don’t believe, in being able to succeed anywhere,” but then
terminated the daughter’s homeschooling, asserting that her interests
would be best served by public schooling, in which both parents could be
involved. In the course of rendering this decision, the trial court made the
following observations:
• Public schools would offer the child a “wider exposure” than she
would receive with homeschooling.
• Public schools would offer “much more diversity, many more
opportunities with respect to the things that she would be able to do.”
• Although the court “appreciate[d] and respect[ed] [the mother’s]
desire to have a religious-based schooling, we live in a very diverse society
and it is not beneficial for children to be raised in a bubble where they do
not have exposure to other people’s cultures and other people’s religion.”
• Public schooling would make the child “a more well-rounded
person.”
Each of these observations may or may not be true, or relevant.
However, taken as a whole, they evince an attitude toward homeschooling
(and public schooling) that is simply not reflected in the laws and policies
of this state. Taken as a whole, these observations suggest a predisposi-
tion by the trial court that, everything else being equal, public schooling
is invariably preferable to homeschooling, a predisposition that would
1062 482 MICHIGAN REPORTS
presumably also counsel in favor of public schooling in future disputes in
which parents disagreed on approaches to their children’s education.
Upon remand, I would direct the trial court to resolve the instant
dispute in a manner that is not grounded on a predisposition toward
either public schooling or homeschooling. I would require the trial court,
as it has done with regard to the other statutory factors set forth in MCL
722.23(h), to assess the best interest of this child in terms of her
particular educational needs. While there conceivably may be
circumstances—pertaining either to the child, her parents, her parents’
relationship, or the available schools—that would counsel in favor of
public schooling or homeschooling in the instant case, these need to be
set out with specificity and without reference to any predisposition
toward either public schooling or home schooling.1
In re GARCIA (GARCIA v MICHIGAN CHILDREN’s INSTITUTE), No. 137485;
Court of Appeals No. 284876.

Leave to Appeal Denied November 25, 2008:

ALEXANDER V BABAOFF, No. 136413; Court of Appeals No. 273433.

PEOPLE V JOSEPH CAMPBELL, No. 136512; Court of Appeals No. 271693.
PEOPLE V HARVEY-BEY, No. 136606. The defendant’s motion for relief
from judgment is prohibited by MCR 6.502(G). Court of Appeals No.
284502.
PEOPLE V GAITHER, No. 136613. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 280416.
PEOPLE V SUTTON, No. 136623. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 280802.
PEOPLE V GARCIA-MEDINA, No. 136625. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 281633.

1
Although it may be true, as the Court of Appeals suggests, that the
trial court’s decision on the child’s education was “not based on a bias
against home schooling,” such conclusion entails speculation and
conjecture in light of what was actually stated. Similarly, it is
conjecture and speculation that these statements constituted mere
“stray remarks,” as the concurring statement asserts. If the Court of
Appeals and the concurring statement are correct in these assess-
ments, the trial court, on remand, could make this clear. I am
comfortable that this matter can be remanded to the same judge for
further consideration.
 ACTIONS ON APPLICATIONS 1063
PEOPLE V CRAIG BROWN, No. 136635. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 282496.
PEOPLE V ALBERT, No. 136646. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 284019.
PEOPLE V WILKINSON, No. 136660. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 282053.
PEOPLE V SUMERLIN, No. 136676. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 282943.
PEOPLE V ENGDAHL, No. 136679. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 284548.
PEOPLE V GEORGE MORGAN, No. 136686; Court of Appeals No. 283234.
PEOPLE V REYNALDO RODRIGUEZ, No. 136688. The defendant’s motion for
relief from judgment is prohibited by MCR 6.502(G). Court of Appeals
No. 284372.
PEOPLE V MCCLINTON, No. 136691. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 284030.
PEOPLE V BRIDGES, No. 136698. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 281102.
PEOPLE V MOTEN, No. 136710. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 281335.
PEOPLE V JAMAR STERLING, No. 136713. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 283940.
PEOPLE V CHRISTOPHER PIERCE, No. 136719. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 283872.
PEOPLE V KALASHO, No. 136720. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 284549.
PEOPLE V JAMES DAVIS, No. 136722. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 284279.
1064 482 MICHIGAN REPORTS
PEOPLE V BLASENGAME, No. 136743. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 284583.
PEOPLE V DIAZ, No. 136755. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 282121.
PEOPLE V DATES, No. 136761; Court of Appeals No. 284629.
PEOPLE V GASKINS, No. 136765; Court of Appeals No. 284588.
PEOPLE V LE, No. 136766. The defendant has failed to meet the burden
of establishing entitlement to relief under MCR 6.508(D). Court of
Appeals No. 282786.
PEOPLE V PERSON, No. 136771. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 282705.
PEOPLE V WOODFORK, No. 136772. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 284941.
PEOPLE V GAYLORD WILSON, No. 136795. The defendant’s motion for
relief from judgment is prohibited by MCR 6.502(G). Court of Appeals
No. 282510.
PEOPLE V RICHARD LARRAIN RAYMOND, No. 136807. The defendant’s
motion for relief from judgment is prohibited by MCR 6.502(G). Court of
Appeals No. 282946.
PEOPLE V PNIEWSKI, No. 136808; Court of Appeals No. 284557.
PEOPLE V CONLEY, No. 136811. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 282526.
PEOPLE V CASS, No. 136812. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 284122.
PEOPLE V RANDALL DAVIS, No. 136825; Court of Appeals No. 285461.
PEOPLE V LOGAN, No. 136827. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 284921.
PEOPLE V JOSEPH FREEMAN, No. 136828; Court of Appeals No. 272252.
PEOPLE V BUCHANAN, No. 136830; Court of Appeals No. 284934.
PEOPLE V LOCKHART, No. 136831; Court of Appeals No. 283684.
 ACTIONS ON APPLICATIONS 1065
PEOPLE V LAST, No. 136838. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 283504.
PEOPLE V ELLIOTT, No. 136841; Court of Appeals No. 274131.
PEOPLE V SWEET, No. 136845. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 281626.
PEOPLE V HARRISON, No. 136850; Court of Appeals No. 269683.
PEOPLE V RANDY PATTERSON, No. 136853. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 282132.
PEOPLE V DENNIS GLOVER, No. 136854. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 283199.
PEOPLE V CHAROBEE, No. 136861. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 281824.
PEOPLE V GEORGE, No. 136865. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 284058.
PEOPLE V LEE, No. 136866. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 285359.
PEOPLE V OSTRANDER, No. 136870. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 282788.
PEOPLE V JEDYNAK, No. 136884; Court of Appeals No. 285228.
PEOPLE V CARLSON, No. 136885. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 283828.
INTERNATIONAL TRANSMISSION COMPANY V PINE VIEW ESTATES SUBDIVISION
ASSOCIATION, No. 136887; Court of Appeals No. 274413.
PEOPLE V HOGUE, No. 136891; Court of Appeals No. 277614.
FRENZEL V MICH-CAN, INC, No. 136894; Court of Appeals No. 281833.
PEOPLE V DAWKINS, No. 136904. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 284562.
PEOPLE V ZEBADIAH HOLLAND, No. 136907. The defendant’s motion for
relief from judgment is prohibited by MCR 6.502(G). Court of Appeals
No. 284813.
1066 482 MICHIGAN REPORTS
PEOPLE V TORRES, No. 136917. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 283474.
PEOPLE V BARNETT, No. 136919; Court of Appeals No. 282934.
NEWBERRY V SCADDAN, No. 136921; Court of Appeals No. 276879.
GRIWATSCH V NIEDZWIECKI, No. 136924; Court of Appeals No. 275188.
PEOPLE V TERRY MATHIS, No. 136931. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 283336.
PEOPLE V FREDDY LOVE, No. 136943. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 282255.
PEOPLE V JAMAL ATKINS, No. 136945. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 282340.
PEOPLE V ALI, No. 136954. The defendant has failed to meet the burden
of establishing entitlement to relief under MCR 6.508(D). Court of
Appeals No. 281983.
PEOPLE V RALPH WILLIS, No. 136957; Court of Appeals No. 282935.
OLSEN V KARAM, No. 136960; Court of Appeals No. 277856.
ALTON V ALTON, No. 136963; Court of Appeals No. 267802.
PEOPLE V LAMBRIX, No. 136967. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 284106.
PEOPLE V OWNEY, No. 136969; Court of Appeals No. 285220.
DEYO V DEYO, No. 136974; Court of Appeals No. 274311.
HALL V GREENE, No. 136979; Court of Appeals No. 276667.
PEOPLE V MICHAEL ANTHONY WILLIAMS, No. 136981. The defendant has
failed to meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 282442.
MINGO V CITY OF DETROIT, No. 136982; Court of Appeals No. 277403.
PEOPLE V BACON, No. 136984; Court of Appeals No. 274242.
PEOPLE V BEASLEY, No. 136985; Court of Appeals No. 283970.
PEOPLE V LESTER WILLIAMS, No. 136990. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 283228.
PEOPLE V TYNER, No. 136991; Court of Appeals No. 277149.
 ACTIONS ON APPLICATIONS 1067
PEOPLE V NEAL, No. 136993. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 284104.
PEOPLE V BARNES, No. 137003; Court of Appeals No. 282960.
PEOPLE V SEARLE, No. 137006; Court of Appeals No. 285516.
PEOPLE V MESI, No. 137008; Court of Appeals No. 284883.
PEOPLE V COTTRELL, No. 137009. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 283583.
PEOPLE V ATKINSON, No. 137012; Court of Appeals No. 285365.
PEOPLE V BRENNAN, No. 137020. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 283132.
PEOPLE V MESSENGER, No. 137031. The defendant’s motion for relief
from judgment is prohibited by MCR 6.502(G). Court of Appeals No.
284408.
PEOPLE V HISTED, No. 137034; Court of Appeals No. 285305.
PEOPLE V MARTINEZ-CABALLARO, No. 137038. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 282841.
PEOPLE V TERRY DIXON, No. 137046; Court of Appeals No. 285284.
PEOPLE V DAUGHERTY, No. 137047. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 282443.
PEOPLE V BASKIN, No. 137050; Court of Appeals No. 284425.
BRYANT V BRYANT, No. 137052; Court of Appeals No. 283417.
PEOPLE V PARDEE, No. 137055. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 285064.
PEOPLE V LANE, No. 137056. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 285688.
PEOPLE V AMBERS, No. 137057; Court of Appeals No. 277022.
PEOPLE V TORIS, No. 137058; Court of Appeals No. 285601.
PEOPLE V WALTON, No. 137066; Court of Appeals No. 283392.
PEOPLE V JAMES BOYD, No. 137067; Court of Appeals No. 281503.
TOAZ V DEPARTMENT OF TREASURY, No. 137070; Court of Appeals No.
275784.
PEOPLE V SIMSON, No. 137074; Court of Appeals No. 271415.
1068 482 MICHIGAN REPORTS
PEOPLE V STRONG, No. 137075; Court of Appeals No. 276425.
PEOPLE V VANDEBERG, No. 137080; Court of Appeals No. 276080.
PEOPLE V STUDER, No. 137083; Court of Appeals No. 276296.
PEOPLE V HALLIBURTON, No. 137085; Court of Appeals No. 285538.
PEOPLE V CURB, No. 137088; Court of Appeals No. 277878.
PEOPLE V BREWSTER, No. 137089. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 284449.
PEOPLE V LISA HOLLAND, No. 137090; Court of Appeals No. 275022.
PEOPLE V MCCURTIS, No. 137091; Court of Appeals No. 275999.
PEOPLE V LEEATRICE WILLIAMS, No. 137098; Court of Appeals No.
278797.
PEOPLE V RONNIE MCDONALD, No. 137099; Court of Appeals No. 285198.
PEOPLE V RONALD VERNON HARRIS, No. 137100; Court of Appeals No.
283623.
PEOPLE V BERO, No. 137104. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 282974.
KELLER CONSTRUCTION, INC V U P ENGINEERS & ARCHITECTS, INC, No.
137112; Court of Appeals No. 275379.
PEOPLE V KIRSCHKE, Nos. 137114 and 137116; Court of Appeals Nos.
276126 and 277853.
SPENCER V DEPARTMENT OF CORRECTIONS, No. 137117; Court of Appeals
No. 284370.
PEOPLE V TITUS JONES, No. 137118; Court of Appeals No. 284615.
PEOPLE V WILLIE HENDERSON, JR, No. 137119. The defendant has failed
to meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 284371.
SCHUPRA V THE WAYNE OAKLAND AGENCY, No. 137120; Court of Appeals
No. 277585.
SHORTER V GARNER, No. 137122; Court of Appeals No. 275149.
PEOPLE V KUCH, No. 137130; Court of Appeals No. 285263.
WIXOM MEADOWS INVESTMENTS LIMITED PARTNERSHIP V FULTON PINES
DEVELOPMENT COMPANY, No. 137131; Court of Appeals No. 283538.
PEOPLE V WIDEMAN, No. 137133; Court of Appeals No. 277815.
WOLFORD V DUNCAN, No. 137135; reported below: 279 Mich App 631.
 ACTIONS ON APPLICATIONS 1069
PEOPLE V EDGE, No. 137140; Court of Appeals No. 277417.
PEOPLE V ECKMYRE, No. 137141. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 286109.
PEOPLE V BERNARD REED, No. 137142; Court of Appeals No. 277876.
PEOPLE V SIERADZKI, No. 137143. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 286281.
PEOPLE V GIDRON, No. 137145. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 284542.
PEOPLE V TORRY TURNER, No. 137147. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 285648.
PEOPLE V PENDELTON, No. 137149; Court of Appeals No. 278408.
PEOPLE V WILLETT, No. 137150. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 285381.
LANE V MAGNUM CORPORATION, No. 137152; Court of Appeals No.
275939.
PEOPLE V RAMOS, No. 137154; Court of Appeals No. 285611.
PEOPLE V KIRKWOOD, No. 137158; Court of Appeals No. 277139.
PEOPLE V OUTLEY, No. 137163; Court of Appeals No. 286090.
PEOPLE V O’DELL, No. 137167; Court of Appeals No. 285520.
PEOPLE V MCDOW, No. 137169; Court of Appeals No. 278950.
PRIME FINANCIAL SERVICES LLC v VINTON, No. 137170; reported below:
279 Mich App 245.
PEOPLE V DEBERRY, No. 137171; Court of Appeals No. 284810.
PEOPLE V MOSS, No. 137172; Court of Appeals No. 278535.
WALTERS V LEECH, No. 137174; reported below: 279 Mich App 707.
HART V ANDERSON, No. 137180; Court of Appeals No. 284235.
PEOPLE V CUELLAR, No. 137181. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 283620.
PEOPLE V KADE, No. 137183; Court of Appeals No. 285742.
PEOPLE V REUTHER, No. 137186. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 282855.
1070 482 MICHIGAN REPORTS
THOMAS V FERGUSON ENTERPRISES, INC, No. 137188; Court of Appeals No.
283672.
PEOPLE V KEITH COATES, No. 137190. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 285341.
PEOPLE V PATRICK BROWN, No. 137192; Court of Appeals No. 284961.
PEOPLE V CLEMENTE PENA, No. 137199. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 284318.
PEOPLE V CLAXTON JOHNSON, JR, No. 137201; Court of Appeals No.
277571.
PEOPLE V MATTHISEN, No. 137204; Court of Appeals No. 283679.
KRAUSE V GRACE COMMUNITY CHURCH, No. 137210; Court of Appeals No.
276173.
PEOPLE V MOREHEAD, No. 137216; Court of Appeals No. 277176.
PEOPLE V PEGENAU, No. 137224; Court of Appeals No. 285457.
In re ESTATE OF FINK (POST V SCHULTZ), No. 137225; Court of Appeals
No. 278266.
MURRAY V COMSTOCK PUBLIC SCHOOLS, No. 137226; Court of Appeals No.
283528.
PEOPLE V MONTES, No. 137230; Court of Appeals No. 277211.
PEOPLE V CHRISTOPHER BOYD, No. 137231; Court of Appeals No. 286045.
PEOPLE V BURROWS, No. 137239; Court of Appeals No. 278319.
PEOPLE V BUGGS, No. 137240. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 284185.
PEOPLE V MCCOWAN, No. 137242; Court of Appeals No. 278794.
PEOPLE V BACHYNSKI, No. 137245; Court of Appeals No. 285403.
MAC V NORTHWEST AIRLINES, INC, No. 137246; Court of Appeals No.
282759.
SHOPE V A D TRANSPORT EXPRESS, INC, No. 137247; Court of Appeals No.
284276.
PEOPLE V PUFALL, No. 137250; Court of Appeals No. 285937.
PEOPLE V PAYNE, No. 137260; Court of Appeals No. 273233.
PEOPLE V NUNN, No. 137265; Court of Appeals No. 278274.
PEOPLE V CURTIS CLARK, No. 137275; Court of Appeals No. 285986.
 ACTIONS ON APPLICATIONS 1071
PEOPLE V BLISS, No. 137279; Court of Appeals No. 286737.
PEOPLE V FALCONE, No. 137281; Court of Appeals No. 285871.
PEOPLE V BRIAN WILLIAMS, No. 137283; Court of Appeals No. 285973.
PEOPLE V LAMPMAN, No. 137286; Court of Appeals No. 283168.
PEOPLE V KADE, No. 137291; Court of Appeals No. 285733.
PEOPLE V KEITH, No. 137302; Court of Appeals No. 278573.
PEOPLE V BRULEY, No. 137303; Court of Appeals No. 286348.
PEOPLE V WINKLER, No. 137308; Court of Appeals No. 278499.
PEOPLE V KLAASSEN, No. 137309; Court of Appeals No. 286581.
PEOPLE V REESE, No. 137310; Court of Appeals No. 285933.
PEOPLE V INSCO, No. 137312; Court of Appeals No. 277696.
PEOPLE V MARK WHITE, No. 137316; Court of Appeals No. 283421.
PEOPLE V HURD, No. 137317; Court of Appeals No. 278618.
PEOPLE V GARRY YOUNG, No. 137319; Court of Appeals No. 286284.
AMERITECH PUBLISHING, INC V DEPARTMENT OF TREASURY, No. 137322;
Court of Appeals No. 276374.
PEOPLE V SHELTON WILLIAMS, No. 137325; Court of Appeals No. 286088.
PEOPLE V HERNANDEZ, No. 137331; Court of Appeals No. 286304.
PEOPLE V PORTER, No. 137333; Court of Appeals No. 286532.
PEOPLE V ANTHONY WILLIAMS, No. 137336; Court of Appeals No. 284229.
MICHIGAN NON-PROFIT HOUSING CORP V MATTHEWS, No. 137339; Court of
Appeals No. 285451.
PEOPLE V BLOOMFIELD, No. 137340; Court of Appeals No. 286166.
PEOPLE V CHARLES SMITH, III, No. 137341; Court of Appeals No. 286383.
PEOPLE V TIMOTHY KELLEY, No. 137350; Court of Appeals No. 284872.
PEOPLE V GLEASON, No. 137361; Court of Appeals No. 284696.
PEOPLE V SANDIFER, No. 137368; Court of Appeals No. 287030.
PEOPLE V TOMASELLO, No. 137376; Court of Appeals No. 285654.
MCMILLIAN V DTE ENERGY, No. 137378; Court of Appeals No. 286371.
PEOPLE V PLAIR, No. 137394; Court of Appeals No. 274575.
PEOPLE V OLIVER, No. 137396; Court of Appeals No. 276824.
1072 482 MICHIGAN REPORTS
PEOPLE V BRISBANE, No. 137428; Court of Appeals No. 277365.
KENDALL V STATE BAR OF MICHIGAN, No. 137442; Court of Appeals No.
277330.

Reconsiderations Denied November 25, 2008:

PEOPLE V RAYMOND GRAY, No. 135901. Leave to appeal denied at 482

Mich 971. Court of Appeals No. 282552.
PEOPLE V JEFFREY BROWN, No. 136085. Leave to appeal denied at 482
Mich 988. Court of Appeals No. 279572.
PEOPLE V BILLY POWELL, No. 136142. Leave to appeal denied at 481
Mich 925. Court of Appeals No. 282376.

Appeal Dismissed November 25, 2008:

PEOPLE V GIVENS, No. 136816. On order of the Court, on receipt of

notice that the defendant died during the pendency of the appeal, the
Court, on its own motion, dismisses the application for leave to appeal as
moot. Court of Appeals No. 278600.

Summary Dispositions November 26, 2008:

PEOPLE V SAM, No. 136756. Pursuant to MCR 7.302(G)(1), in lieu of

granting leave to appeal, we vacate defendant’s plea-based conviction of
operating a motor vehicle while under the influence of intoxicating
liquor-third offense (OUIL 3rd), MCL 257.625(1), (9)(c), because the
prosecution concedes that it could not have prosecuted defendant for this
offense under the statute as it was written at the time of defendant’s
offense. See People v New, 427 Mich 482, 491-492 (1986); People v
Hammond, 187 Mich App 105, 110-113 (1991). We note that the Novem-
ber 29, 2007, judgment of sentence reflects a plea to the original charge
of operating while intoxicated, causing serious impairment of a body
function of another person, MCL 257.625(5); the discrepancy between
the judgment of sentence and defendant’s actual plea to OUIL 3rd
appears to have been the result of a clerical error. We reinstate the
original charge of operating while intoxicated, causing serious impair-
ment of a body function of another person, MCL 257.625(5), and remand
this case to the Wayne Circuit Court for trial or for further proceedings
consistent with this order. In all other respects, leave to appeal is denied,
because we are not persuaded that the remaining questions presented
should be reviewed by this Court. Court of Appeals No. 285016.
PEOPLE V BLACK, No. 136840. Pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we remand this case to the Oakland Circuit
Court for the correction of the sentencing information report (SIR) to
reflect the circuit court’s changes made at the sentencing proceeding on
 ACTIONS ON APPLICATIONS 1073
August 22, 2007. MCR 6.425(E)(2). The circuit court shall forward a copy
of the amended SIR to the Department of Corrections. In all other
respects, leave to appeal is denied, because we are not persuaded that the
remaining questions presented should be reviewed by this Court. We do
not retain jurisdiction. Court of Appeals No. 284928.
KELLY, J. I would vacate the judgment of sentence and remand this
case to the trial court for resentencing in accordance with the terms of
the sentence agreement, under People v Cobbs, 443 Mich 276 (1993), to a
minimum term at the bottom of the appropriate guidelines range, or, in
the alternative, for the defendant to be given the opportunity to with-
draw his pleas.
FORD V SECURECARE, INC, No. 136935. Pursuant to MCR 7.302(G)(1), in
lieu of granting leave to appeal, we vacate the order of the Court of
Appeals and we remand this case to the Washtenaw Circuit Court for
entry of an order granting defendants’ motion for summary disposition
with prejudice in light of Mullins v St Joseph Mercy Hosp, 480 Mich 948
(2007), and Washington v Sinai Hosp of Greater Detroit, 478 Mich 412
(2007) (holding that a successor personal representative is barred by res
judicata from filing a subsequent complaint when the first was dismissed
on statute of limitations grounds). We do not retain jurisdiction. Court of
Appeals No. 266272.
PEOPLE V DEVON HOWARD, Nos. 137683 and 137685. Pursuant to MCR
7.302(G)(1), in lieu of granting leave to appeal, we remand this case to the
Court of Appeals for consideration as on leave granted to determine
whether the trial court followed the standards set forth in MCR
6.201(C)(2) and People v Stanaway, 446 Mich 643 (1994), in granting an
in camera review of privileged materials. The proceedings in the Oakland
Circuit Court are stayed pending the completion of this appeal. On
motion of a party or on its own motion, the Court of Appeals may modify,
set aside, or place conditions on the stay if it appears that the appeal is
not being vigorously prosecuted or if other appropriate grounds appear.
Court of Appeals Nos. 288723 and 288724.

Leave to Appeal Denied November 26, 2008:

PEOPLE V MCGHEE, No. 130031; reported below: 268 Mich App 600.
PEOPLE V BONNEY, No. 135013; Court of Appeals No. 279468.
PEOPLE V RICHARD LEE RAYMOND, No. 136734; Court of Appeals No.
283502.
KELLY, J. I would reverse the Macomb Circuit Court revocation of the
order of probation and remand this case to the trial court for further
proceedings, because there was no provision in the order of probation
that prohibited the defendant from being within 500 feet of the victim, so
probation could not be revoked for that reason. Furthermore, expanding
the “no contact” provisions beyond those listed in the order of probation
without notice to the defendant violated due process. See United States v
Twitty, 44 F3d 410 (CA 6, 1995).
1074 482 MICHIGAN REPORTS
ADAMASU V GIFFORD, KRASS, GROH, SPRINKLE, ANDERSON & CITKOWSKI, PC,
No. 136748; Court of Appeals No. 273895.
UNIVERSITY OF MICHIGAN REGENTS V TITAN INSURANCE COMPANY, No.
136905; Court of Appeals No. 276710.
CAVANAGH, WEAVER, and KELLY, JJ. We would grant leave to appeal.
VANERIAN V CHARLES L PUGH COMPANY, INC, No. 137048; reported below:
279 Mich App 431.

Summary Dispositions December 3, 2008:

SCOTT V STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, No.

136502. The motion for leave to file a brief amicus curiae is granted. The
application for leave to appeal the April 15, 2008, judgment of the Court
of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we vacate that portion of the judgment of the
Court of Appeals that stated that, with respect to the causation test
under MCL 500.3105(1), “almost any causal connection or relationship
will do.” Shinabarger v Citizens Mut Ins Co, 90 Mich App 307, 313-314
(1979), and Bradley v Detroit Automobile Inter-Ins Exch, 130 Mich App
34, 42 (1983). To the extent of that description of the required causal
connection, those cases are inconsistent with the other authorities relied
on by the Court of Appeals, such as Putkamer v Transamerica Ins Corp
of America, 454 Mich 626, 634 (1997), Thornton v Allstate Ins Co, 425
Mich 643, 659 (1986), and Kochoian v Allstate Ins Co, 168 Mich App 1
(1988). In all other respects, the application for leave to appeal is denied,
because we are not persuaded that the questions presented should now be
reviewed by this Court. Reported below: 278 Mich App 578.
MARKMAN, J. (concurring). Contrary to the dissent, our order does not
“alter” Court of Appeals precedent. Even apart from the fact that
Shinabarger v Citizens Mut Ins Co, 90 Mich App 307 (1979), and Bradley
v Detroit Automobile Inter-Ins Exch, 130 Mich App 34 (1983), are both
nonbinding under MCR 7.215(J)(1), these decisions predate both Thorn-
ton v Allstate Ins Co, 425 Mich 643 (1986), and Putkamer v Transamerica
Ins Corp of America, 454 Mich 626 (1997). In both Thornton and
Putkamer, this Court adopted only the “incidental, fortuitous, or but for”
language, not the “almost any causal connection will do” language, of the
Court of Appeals decisions. It seems clear that if this Court had intended
to include the latter language in the test under MCL 500.3105(1), it
would have been natural to have done so in either or both Thornton and
Putkamer. We did not. Therefore, the only test under which the Court of
Appeals was obligated to evaluate this case was the one set forth in
Thornton and Putkamer.
That the two tests could conceivably be construed together, as the
dissent suggests, is irrelevant. This Court has an obligation to make
certain that the tests under which we evaluate cases are as reasonably
clear as possible to the parties and lower courts. We have never adopted
the “almost any causal connection” language and cannot permit the
Court of Appeals to alter our statements concerning the law with
 ACTIONS ON APPLICATIONS 1075
published references to nonbinding precedents that we have never seen
fit to adopt and indeed have implicitly rejected. By leaving the “almost
any causal connection” language unaddressed, we distort the clear (and
I believe correct) rule set forth in Thornton and Putkamer.
CORRIGAN and YOUNG, JJ. We join the statement of Justice MARKMAN.
CAVANAGH, J. I would deny leave to appeal without the further
statement found in the majority’s order.
KELLY, J. (dissenting). I would grant leave to appeal. This case involves
an interlocutory appeal by defendant, State Farm Mutual Automobile
Insurance Company, from the probate court’s denial of summary dispo-
sition. Plaintiff’s claim was made under the no-fault insurance act,1 and
the issue on appeal is the level of causation required to support a claim
under the act.
Plaintiff was injured in an automobile accident in 1981 that left her
impaired and legally incapacitated. Because of skeletal and brain trauma
from the accident, she has been unable to lead a normal active life and, as
a result, has gained some 80 pounds.2 This, in turn, has caused her
cholesterol to skyrocket, causing hyperlipidemia, and she now requires
medication to control it. Defendant State Farm originally paid for
plaintiff’s medication, but has now terminated her benefits.3 Plaintiff
sued to reinstate the benefits, and when State Farm moved to dismiss her
case, the probate court denied the motion. The circuit court denied leave
to appeal, and the Court of Appeals affirmed the probate court’s decision
in a published opinion per curiam.4
This Court has now partially vacated the Court of Appeals opinion. In
so doing, the majority has overturned a line of Michigan caselaw that has
existed and been followed since 1979. It concerns the threshold level of
causation plaintiffs must establish to proceed in no-fault cases. Existing
law states that evidence establishing “almost any causal connection will
do,” as the Court of Appeals indicated. The causal connection must also
be “more than incidental, fortuitous or but for.”
Contrary to the majority’s conclusion, the cases cited by the Court of
Appeals addressing causation are mutually compatible. As the Court of
Appeals held in Kangas v Aetna Casualty & Surety Co:5
[W]hile the automobile need not be the proximate cause of the
injury, there still must be a causal connection between the injury
sustained and the ownership, maintenance or use of the automo-
bile and which causal connection is more than incidental, fortu-
itous or but for. [Emphasis added.]

1
MCL 500.3101 et seq.
2
She weighed 120 pounds before the accident.
3
State Farm’s own independent medical examiner acknowledged a
causal link between plaintiff’s hyperlipidemia and the automobile acci-
dent.
4
Scott v State Farm Mut Automobile Ins Co, 278 Mich App 578 (2008).
5
Kangas v Aetna Casualty & Surety Co, 64 Mich App 1, 17 (1975).
1076 482 MICHIGAN REPORTS
Four years later, the Court of Appeals, in Shinabarger v Citizens Mut Ins
Co,6 again examined the causation element of no-fault insurance claims:

The term “arising out of” does not mean proximate cause in
the strict legal sense, nor require a finding that the injury was
directly and proximately caused by the use of the vehicle . . . .
[A]lmost any causal connection or relationship will do . . . . [T]he
injury need not be the proximate result of “use” in the strict sense,
but it cannot be extended to something distinctly remote. Each
case turns on its precise individual facts. The question to be
answered is whether the injury “originated from”, “had its origin
in”, “grew out of”, or “flowed from” the use of the vehicle.
[Citations and quotation marks deleted; emphasis added.]
In 1983, in Bradley v Detroit Automobile Inter-Ins Exch,7 the Court of
Appeals relied on language from Shinabarger, stating that “ ‘almost any
causal relationship or connection will do.’ ” However, Bradley also quoted
the Kangas holding that “ ‘there still must be a causal connection
between the injury sustained and the ownership, maintenance or use of
the automobile and which causal connection is more than incidental,
fortuitous or but for.’ ”8 Note that Bradley used both the Kangas and
Shinabarger standards, indicating they are compatible.
In Thornton v Allstate Ins Co, this Court repeated the “incidental,
fortuitous, or but for” language of Kangas.9 Thornton did not discuss the
“almost any causal connection will do” language. Recently, in Putkamer
v Transamerica Ins Corp of America,10 this Court affirmed that the
causal connection between an injury and the use of the motor vehicle
must be more than incidental, fortuitous, or “but for.”
The Court of Appeals did not err in relying on these cases to interpret
the causal nexus required in a no-fault case involving injury. The
precedent makes clear that an injury requires more than a fortuitous,
incidental or but-for causal connection, but does not require full proxi-
mate causation. Also, as Bradley states, “almost any causal connection
will do.” Nothing suggests that the two standards are in opposition or
cannot be applied together. They logically build on one another and stand
for the same basic proposition. Taken together, they mean that evidence
establishing almost any causal connection will suffice when it is more
than merely fortuitous, incidental, or but for. The level of proof could be
described as a scintilla of proximate cause. The Court in Bradley
recognized this when it cited both standards to render its decision, just as
the Court of Appeals did in this case.
The Michigan Supreme Court should not alter the precedent concern-
ing this issue without first hearing oral argument and inviting briefing

6
Shinabarger v Citizens Mut Ins Co, 90 Mich App 307, 313-314 (1979).
7
Bradley v Detroit Automobile Inter-Ins Exch, 130 Mich App 34, 42
(1983).
8
Id. at 41-42.
9
Thornton v Allstate Ins Co, 425 Mich 643, 659-660 (1986).
10
Putkamer v Transamerica Ins Corp of America, 454 Mich 626, 634
(1997).
 ACTIONS ON APPLICATIONS 1077
on it. State Farm argues that the sky will fall if the standard used by the
Court of Appeals is not revised. Yet, the sky has remained in place under
the existing standard for the last 30 years.
Rather than alter this important standard hastily, the Court should
grant leave to appeal and make a change, if any, only after due
deliberation.
WEAVER, J. I join the statement of Justice KELLY.
PEOPLE V DELAZZER, No. 136889. Pursuant to MCR 7.302(G)(1), in lieu
of granting leave to appeal, we remand this case to the Jackson Circuit
Court for resentencing in light of People v Smith, 482 Mich 292 (2008).
Court of Appeals No. 277834.
CORRIGAN, J. (concurring). I concur in the order of remand in light of
the majority opinion in People v Smith, 482 Mich 292 (2008). But, as
explained in my dissent in Smith, I continue to find the majority rule
unworkable and worthy of reconsideration.
WEAVER, J. (dissenting). I would deny leave to appeal for the reasons
set forth in my dissenting statement in People v Smith, 482 Mich 292,
325-329 (2008).

Leave to Appeal Granted December 3, 2008:

SEYBURN, KAHN, GINN, BESS, DEITCH, AND SERLIN, PC v BAKSHI, No.

136436. The parties shall include among the issues to be briefed: (1)
whether the plaintiff’s action was brought to recover the balance due
upon a mutual and open account; (2) if so, whether MCL 600.5831 applies
to an action brought by an attorney against his client to recover unpaid
legal fees; (3) whether legal services performed after termination of an
attorney-client relationship can be “the last item proved in the account”
under MCL 600.5831; (4) whether there can be a “mutual and open
account” after termination of an attorney-client relationship; and (5)
whether a claim by an attorney against his client for unpaid legal fees
always accrues on the date the attorney-client relationship ends.
Persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae. Reported below: 278 Mich App 486.

Leave to Appeal Denied December 3, 2008:

In re SOUTHARD (DEPARTMENT OF HUMAN SERVICES V SOUTHARD), Nos.

137487, 137488, 137489, 137491, and 137492; Court of Appeals Nos.
283599, 283600, 283601, 283602, and 283603.
EMPSON-LAVIOLETTE V CRAGO, No. 137537; reported below: 280 Mich
App 620.
In re SEGAR (DEPARTMENT OF HUMAN SERVICES V SEGAR), No. 137594;
Court of Appeals No. 284817.
1078 482 MICHIGAN REPORTS
Leave to Appeal Denied December 10, 2008:

PEOPLE V HORTON, No. 134969; Court of Appeals No. 268264.

CAVANAGH and KELLY, JJ. We would grant leave to appeal.
PEOPLE V HELLSTROM, No. 135382; Court of Appeals No. 269980.
PEOPLE V SCHULTZ, No. 136790; reported below: 278 Mich App 776.
PEOPLE V BERNAICHE, No. 136995; Court of Appeals No. 261498.
CAVANAGH and KELLY, JJ. We would grant leave to appeal.
PEOPLE V SCHURTZ, Nos. 136996 and 136997; Court of Appeals Nos.
278056 and 278057.
ABE V MICHIGAN STATE UNIVERSITY, No. 136999. Costs of $250 are
assessed against the plaintiff in favor of the defendant under MCR
7.316(D)(1) for filing a vexatious appeal. Plaintiff Shola Abe is barred
from submitting additional filings in this Court in noncriminal matters
until he offers proof that he has paid all outstanding court-imposed
sanctions. Court of Appeals No. 281651.
PEOPLE V PLATTE, No. 137011; Court of Appeals No. 282046.
KELLY, J. (dissenting). I would grant leave to appeal. Appellate counsel
concededly missed the deadlines for filing a motion for a new trial and for
a claim of appeal. Counsel also failed to file a motion for a stay or to
remand in the Court of Appeals. When counsel filed an application for
leave to appeal, it was denied. The Court should reexamine its practice of
requiring a defendant to show prejudice in order to have an appeal as of
right if counsel has been ineffective, as here. People v Pickens, 446 Mich
298 (1994).
Finally, I would grant leave to appeal in this case for the reasons
stated in my dissent in People v Conway, 474 Mich 1140 (2006).
PEOPLE V BROCKMAN, No. 137033; Court of Appeals No. 284456.
KELLY, J. I would remand this case for resentencing.

Summary Disposition December 11, 2008:

ANGLERS OF THE AUSABLE, INC V DEPARTMENT OF ENVIRONMENTAL QUALITY,

No. 137725. Pursuant to MCR 7.302(G)(1), in lieu of granting leave to
appeal, we remand this case to the Court of Appeals for consideration as
on leave granted. The Court of Appeals shall consider on remand (1)
whether the Otsego Circuit Court erred in finding that defendant Merit’s
Certificate of Coverage exceeded the scope of the Department of Envi-
ronmental Quality’s July 23, 2004, General Permit; (2) whether, by
analyzing defendant Merit’s Certificate of Coverage under the Michigan
Environmental Protection Act (MEPA), MCL 324.1701 et seq., the Otsego
Circuit Court’s ruling of January 31, 2008, exceeded the proper scope of
review of an administrative ruling; and, if not, (3) whether the Otsego
Circuit Court erred in basing its MEPA ruling on the factual record
developed in the parties’ separate circuit court action. Human Rights
Party v Corrections Comm, 76 Mich App 204 (1977). We note that there
 ACTIONS ON APPLICATIONS 1079
are related cases pending in the Court of Appeals. Docket Nos. 279301,
279306, 280265, and 280266. Court of Appeals No. 284315.
CAVANAGH, WEAVER, and KELLY, JJ. We would deny leave to appeal.

Summary Disposition December 12, 2008:

GRIEVANCE ADMINISTRATOR V COOPER, No. 135053. In lieu of granting

leave to appeal, we reverse the opinion and order of the Attorney
Discipline Board and reinstate the August 1, 2006, order of dismissal of
the Attorney Discipline Board Hearing Panel No. 106. The Attorney
Discipline Board erred in holding that the July 29, 2002, fee agreement
was ambiguous as to whether the $4,000 minimum fee was nonrefund-
able. As written, the agreement clearly and unambiguously provided that
the respondent was retained to represent the client and that the
minimum fee was incurred upon execution of the agreement, regardless
of whether the representation was terminated by the client before the
billings at the stated hourly rate exceeded the minimum. So understood,
neither the agreement nor the respondent’s retention of the minimum
fee after the client terminated the representation violated existing MRPC
1.5(a), MRPC 1.15(b), or MRPC 1.16(d). ADB: 06-000036-GA.
KELLY, J. (concurring). I concur in the Court’s order reversing the
opinion and order of the Attorney Discipline Board and reinstating the
order of dismissal of the Attorney Discipline Board Hearing Panel No.
106. I write separately in the interest of curtailing future misunder-
standings regarding attorney-client fee agreements similar to the one
that occurred in this case.
The following is the relevant part of the fee agreement:
1. Client agrees to pay Attorney a MINIMUM FEE OF
$4,000.00 which shall be payable as follows:
Retainer $4,000.00
Balance $-0-

***

This MIMIMUM FEE shall entitle Client to a combined amount

of Attorney and Legal Assistant time computed in accordance with
the hourly rate set forth in Paragraph 3 below.
2. Client understands that NO portion of the MINIMUM FEE
referred to above is REFUNDABLE, to the client, under any
circumstances.
3. Hourly rate: Attorney $195.00
Assistant $_____
4. In the event the combined Attorney and Legal Assistant
time shall exceed the MINIMUM FEE, Client agrees to pay for
such time at the rates set forth in Paragraph 3 above.
I agree that this agreement is unambiguous because it clearly states that
the $4,000 minimum fee is nonrefundable.
1080 482 MICHIGAN REPORTS
However, counsel might be aided in knowing that the Attorney
Grievance Commission believes that fewer grievances would be filed if a
different fee agreement were substituted for the agreement used in this
case. The commission recommends that the agreement explicitly desig-
nate the fee the attorney charges for being hired and state that the fee is
nonrefundable under any circumstances. As the commission recom-
mends, counsel may wish to designate the number of hours the attorney
will work without additional charge, and specify an hourly rate to be
charged thereafter.
GENERAL MOTORS CORPORATION V ALUMI-BUNK, INC, No. 135117. On order
of the Court, leave to appeal having been granted, and the briefs and oral
arguments of the parties having been considered by the Court, we hereby
reverse in part the July 24, 2007, judgment of the Court of Appeals, for
the reasons stated in the Court of Appeals dissenting opinion. The trial
court did not err in granting the defendants’ motion for summary
disposition on the plaintiff’s claim of fraudulent inducement. Therefore,
the ruling of the Wayne Circuit Court is affirmed in all respects. Court of
Appeals No. 270430.
YOUNG, J. (concurring). I concur with the Court’s order to reverse the
Court of Appeals resolution of the fraudulent inducement claim. I write
separately to indicate that, contrary to Justice KELLY’s dissenting state-
ment, the tort claim raised in this case is clearly barred by the economic
loss doctrine because it is inextricably interwoven with plaintiff’s claim of
breach of contract.
The alleged basis for the contract was defendant’s promise to “upfit”
(modify) the vehicles it purchased from plaintiff in exchange for a
discounted price. Contrary to Justice KELLY’s analysis, this singular
“promise” is the sole reason for the dispute between the parties. Indeed,
a reader will be hard-pressed to find a distinction between the two
complaint averments that Justice KELLY quotes in support of her dissent-
ing statement.
Plaintiff claims that defendant made this upfit promise during the
negotiation phase, but it was never made a part of the contract.
Nevertheless, plaintiff contends that defendant breached its promise to
upfit the vehicles it purchased and that defendant never intended to upfit
when it promised to do so. Thus, this promise to upfit is both the basis for
the breach of contract claim and the fraudulent inducement claim.
The trial court and the Court of Appeals correctly determined that
plaintiff’s breach of contract claim, based on the violation of this promise,
must be dismissed given that plaintiff failed to include this central term
in the written contract. Moreover, there is no way to characterize these
identical allegations as separate claims for breach of contract and
fraudulent inducement. Accordingly, the trial court was required, as it
did, to dismiss the fraud claim to prevent contract law from “drown[ing]
in a sea of tort.” Neibarger v Universal Coop, Inc, 439 Mich 512, 531
(1992). The Court of Appeals erred in reversing that decision.
KELLY, J. (dissenting). I respectfully dissent from the Court’s order
reversing in part the judgment of the Court of Appeals. I believe that the
Court of Appeals majority correctly held that defendants are not entitled
 ACTIONS ON APPLICATIONS 1081
to summary disposition on the fraudulent inducement of plaintiff,
General Motors Corporation. Accordingly, I would affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In 2003, defendants sought to purchase hundreds of pickup trucks

from a General Motors Corporation (GMC) dealer. Defendants ultimately
purchased 148 trucks and obtained from plaintiff a Competitive Assis-
tance Program (CAP) discount of $7,200 for each vehicle. Plaintiff
contends that it granted the discount only because defendants agreed,
both orally and in writing, to modify or “upfit” the vehicles before selling
them. In this way, the vehicles would not compete with other, unmodified,
GMC vehicles already on the market. However, the written contract
contained no such requirement and defendants later sold the vehicles
without modifications.
Plaintiff filed a complaint setting forth counts of negligent, innocent,
and/or intentional misrepresentation, fraud, and breach of contract,
among others. Defendants moved for summary disposition under MCR
2.116(C)(8) and (10), arguing that plaintiff’s claims were untenable
because the written contract memorializing the CAP discount did not
contain a requirement that the vehicles be upfitted. Defendants also
argued that the economic loss doctrine1 applied to this case and barred
plaintiff’s tort claims. Also, it asserted, plaintiff was limited to the
remedies available under the Uniform Commercial Code2 (UCC). Plain-
tiff responded that the economic loss doctrine was inapplicable to
plaintiff’s fraudulent inducement claim, and, even if applicable, the claim
remained viable because the fraud occurred before the contract existed.
The trial court granted defendants’ motion for summary disposition,
ruling that the fraud claim was not independent of the contract claim and
was thus barred by the economic loss doctrine. The Court of Appeals
majority affirmed in part and reversed in part, finding no error in the
trial court’s conclusion that the economic loss doctrine governed because
“the contract regarding the CAP discount involved the conducting of
business concerning trucks, which are ‘goods’ under the UCC.”3 How-
ever, the Court held that the trial court erred in concluding that the
alleged fraud was so interwoven with the breach of contract claim that it
could not be considered separately.4 The Court concluded that outstand-
ing questions of fact existed regarding the fraud claim. It referred to

1
The economic loss doctrine provides that “[w]here a purchaser’s
expectations in a sale are frustrated because the product he bought is not
working properly, his remedy is said to be in contract alone, for he has
suffered only economic losses.” Neibarger v Universal Coop, Inc, 439
Mich 512, 520 (1992) (citations and quotation marks omitted).
2
MCL 440.1101 et seq.
3
Gen Motors Corp v Alumi-Bunk, Inc, unpublished opinion per curiam
of the Court of Appeals, issued July 24, 2007 (Docket No. 270430), at 4.
4
Id. at 7.
1082 482 MICHIGAN REPORTS
credible evidence that defendants had improperly induced plaintiff to
enter into the contract by agreeing to upfit the vehicles without having a
present intent to do so.5
We granted leave to appeal to determine (1) whether an exception to
the economic loss doctrine exists for claims of fraudulent inducement,
and (2) whether the fraud claims in this case are sufficiently distinguish-
able from the contract claims for purposes of applying the fraudulent
inducement exception.6

II. ANALYSIS

This Court officially recognized the economic loss doctrine in

Neibarger v Universal Coop, Inc.7 Neibarger involved a plaintiff seeking
economic loss damages as the result of a defective product. Commenting
on the differences between an individual consumer’s tort remedy for
product liability compared with a commercial party suffering economic
losses, the Court stated:

[I]n a commercial transaction, the parties to a sale of goods

have the opportunity to negotiate the terms and specifications,
including warranties, disclaimers and limitations of remedies.
Where a product proves to be faulty after the parties have
contracted for sale and the only losses are economic, the policy
considerations supporting products liability in tort fail to serve the
purpose of encouraging the design and production of safer prod-
ucts.[8]

The Court went on to hold that “where a plaintiff seeks to recover for
economic loss caused by a defective product purchased for commercial
purposes, the exclusive remedy is provided by the UCC . . . .”9
The Neibarger Court also noted the policy rationale behind the
economic loss doctrine:
The purpose of a tort duty of care is to protect society’s interest
in freedom from harm, i.e. the duty arises from policy consider-
ations formed without reference to any agreement between the
parties. A contractual duty, by comparison, arises from society’s
interest in the performance of promises. Generally speaking, tort
principles . . . are better suited for resolving claims involving un-
anticipated physical injury . . . . Contract principles, on the other
hand, are generally more appropriate for determining claims for

5
Id. at 7-8.
6
Gen Motors Corp v Alumi-Bunk, Inc, 480 Mich 1193 (2008).
7
Neibarger v Universal Coop, Inc, 439 Mich 512 (1992).
8
Id. at 523.
9
Id. at 527-528.
 ACTIONS ON APPLICATIONS 1083
consequential damages that the parties have, or could have,
addressed in their agreement.[10]

MCL 440.1103 provides the basis for plaintiff’s assertion that there is
an exception to the economic loss doctrine for claims of fraud:

Unless displaced by the particular provisions of [the UCC], the

principles of law and equity, including the law merchant and the
law relative to capacity to contract, principal and agent, estoppel,
fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or
other validating or invalidating cause shall supplement its provi-
sions.[11]

Huron Tool & Engineering Co v Precision Consulting Services, Inc,12

is the leading case discussing the fraudulent inducement exception to the
economic loss doctrine.13 Huron Tool involved the defendant manufac-
turer’s claims for breach of contract, breach of warranty, fraud, and
misrepresentation arising out of defective software purchased by the
plaintiff. After determining that the plaintiff’s breach of contract claim
was barred by the UCC’s statute of limitations, the Court of Appeals
addressed the viability of the plaintiff’s fraudulent inducement claim:
With regard to the specific intentional tort of fraud, courts
generally have distinguished fraud in the inducement as the only
kind of fraud claim not barred by the economic loss doctrine. We
believe this distinction is warranted in light of the rationale of the
economic loss doctrine.

***

In light of this rationale, we decline to adopt defendants’

position that the economic loss doctrine precludes any fraud claim.

10
Id. at 521 (quotation marks and citation omitted).
11
Emphasis added.
12
Huron Tool & Engineering Co v Precision Consulting Services, Inc,
209 Mich App 365 (1995).
13
Numerous jurisdictions have relied on Huron Tool for the proposi-
tion that an exception to the economic loss doctrine exists for claims of
fraudulent inducement. See, e.g., Werwinski v Ford Motor Co, 286 F3d
661, 676 (CA 3, 2002); Marvin Lumber & Cedar Co v PPG Industries, Inc,
223 F3d 873, 885 (CA 8, 2000); Giles v Gen Motors Acceptance Corp, 494
F3d 865, 875 (CA 9, 2007); Dinsmore Instrument Co v Bombardier, Inc,
999 F Supp 968, 970 (ED Mich, 1998); Kaloti Enterprises, Inc v Kellogg
Sales Co, 283 Wis 2d 555, 581 (2005); Valleyside Dairy Farms, Inc v AO
Smith Corp, 944 F Supp 612, 616 (WD Mich, 1995).
1084 482 MICHIGAN REPORTS
Fraud in the inducement presents a special situation where parties
to a contract appear to negotiate freely—which normally would
constitute grounds for invoking the economic loss doctrine—but
where in fact the ability of one party to negotiate fair terms and
make an informed decision is undermined by the other party’s
fraudulent behavior.[14]

The Court of Appeals limited its holding, however, stating that “a

plaintiff may only pursue a claim for fraud in the inducement extraneous
to the alleged breach of contract.15
Applying the principles expounded in Neibarger, MCL 440.1103, and
Huron Tool to this case, it is clear that the majority’s decision to reverse
the Court of Appeals and grant summary disposition to defendants is
unwarranted. This case involves a “transaction in goods.” The UCC thus
provides the relevant governing law,16 and the economic loss doctrine
would generally bar claims for economic loss related to the transaction,
including breach of contract claims.17 However, MCL 440.1103 explicitly
recognizes that certain categories of claims are exempt from the eco-
nomic loss doctrine. Specifically, claims for fraud are authorized by
statute as a supplement to the remedies normally available under the
UCC.18 This is the premise that governs this dispute.
Moreover, as recognized in Huron Tool, fraudulent inducement claims
are proper despite the limitations of the economic loss doctrine “where
parties to a contract appear to negotiate freely . . . but where in fact the
ability of one party to negotiate fair terms and make an informed decision
is undermined by the other party’s fraudulent behavior.”19 Huron Tool
addressed claims of fraud interwoven with claims of breach of contract. It
held that, in such claims, the alleged misrepresentations relate to the
breaching party’s performance of the contract and do not give rise to an
independent cause of action in tort.20 This type of fraud is not extraneous
to the contractual dispute between the parties. It is another thread in the
fabric of plaintiff’s contract claim, supported by factual allegations
identical to those supporting its breach of contract counts.21 Such fraud

14
Huron Tool, supra at 371-373 (emphasis in original).
15
Id. at 374.
16
MCL 440.2102.
17
Neibarger, supra at 520. The issue whether the trial court properly
dismissed plaintiff’s breach of contract claims is not the subject of this
appeal.
18
MCL 440.1103.
19
Huron Tool, supra at 372.
20
Id. at 373.
21
Id.
 ACTIONS ON APPLICATIONS 1085
does not induce a plaintiff to enter into a contract nor does it cause harm
to a plaintiff distinct from that caused by the breach of contract.22
As determined by the Court of Appeals majority in the instant case,
the fraud alleged by plaintiff was not interwoven with its breach of
contract claim. Rather, the alleged fraud induced plaintiff to enter into
the contract; it did not relate to the breach of contract itself. In fact,
plaintiff’s complaint specifically alleges, in pertinent part:

FRAUD
32. Defendants . . . knowingly misrepresented that any fleet
vehicles purchased under the Competitive Assistance Program
would be upfitted before the resale of those vehicles to the general
public. . . .

***

NEGLIGENT, INNOCENT AND/OR INTENTIONAL

MISREPRESENTATION

39. Defendants . . . represented to [plaintiff] on several occa-

sions that any fleet vehicles purchased under the Competitive
Assistance Program would be upfitted before the resale of those
vehicles to the public.[23]

Plaintiff’s complaint thus makes clear that its fraud and misrepresenta-
tion claims are not based on a breach of the contract itself. They are
based, instead, on defendants’ representations made before the contract
was executed. Accordingly, the Court of Appeals correctly distinguished
the two intrinsically different allegations of misconduct by defendant—
fraudulent inducement and breach of contract—in holding that defen-
dants are not entitled to summary disposition.
This analysis is also consistent with the Court’s holding in Rutan v
Straehly.24 In Rutan, the Court held that fraud claims generally cannot
be predicated on future actions. However, the Court stated that “an
unfilled promise to perform in the future is actionable when there is
evidence that it was made with a present undisclosed intent not to
perform.25 I agree with the Court of Appeals majority, which relied on
Rutan. The Court concluded that plaintiff presented ample evidence of an
unfulfilled promise to perform on the part of defendants. It presented
ample evidence that, while defendants agreed to upfit the vehicles,
defendants had a present intent to sell the vehicles without doing so. This

22
Id.
23
Plaintiff’s complaint at 7, 9 (emphasis added).
24
Rutan v Straehly, 289 Mich 341 (1939).
25
Id. at 348-349.
1086 482 MICHIGAN REPORTS
situation fits squarely within Rutan, MCL 440.1103, the fraudulent
inducement exception to the economic loss doctrine, and Huron Tool.
The majority’s reliance on the Court of Appeals dissent is unfounded.
The dissent misapplies Huron Tool and ignores the import of MCL
440.1103 and Rutan.26 The dissenting opinion correctly states that,
pursuant to Huron Tool, a plaintiff must allege a claim for fraudulent
inducement separate from a claim of breach of contract. However, it
disregards documentary and testimonial evidence presented by plaintiff
that during the negotiating process, defendants made several misrepre-
sentations, both written and oral, that the purchased vehicles would be
upfitted. Therefore, the dissenting opinion’s statement that “there is a
glaring absence of any evidence at all that would even inferentially
support [plaintiff’s claim for fraudulent inducement]” is inaccurate.27
Similarly, Huron Tool evinces no intent to subvert the foundational
rule of Michigan jurisprudence, embodied in MCR 2.111(A)(2), that a
party may plead in the alternative even “where proof of one claim must
defeat the existence of another.”28 A plaintiff’s “antithetical pleadings”
are not grounds for summary judgment.29 Thus, the fact that plaintiff
pleaded alternate theories of liability flowing from the same facts—
fraudulent inducement and breach of contract—does not support a
rejection of its fraudulent inducement claim. The proper scope of analysis
under Huron Tool is the fraud claim itself, as stated in plaintiff’s
complaint. That claim should be analyzed to determine if it relates to a
contractual provision or to the separate breach of contract theory of
liability alleged in the complaint. If it relates to a contractual provision,
the economic loss doctrine bars the fraud claim. If not, the claim survives
on its own.
It is undisputed that the contract at issue has no provision for
upfitting. Hence, plaintiff’s fraudulent inducement claim does not relate
to a contractual provision, and the claim should proceed. Speculation
about whether plaintiff should have included an upfit provision in the
contract is an issue involving the contract, wholly irrelevant to the
fraudulent inducement claim.

III. CONCLUSION

I believe that the Court of Appeals majority correctly held that

defendants are not entitled to summary disposition on plaintiff’s claims
for fraudulent inducement. Pursuant to MCL 440.1103, Huron Tool, and

26
In fact, Justice YOUNG’s concurrence and the Court of Appeals dissent
both fail to cite MCL 440.1103 or Rutan. Justice YOUNG also fails to
recognize the significance of Huron Tool whatsoever.
27
Gen Motors Corp v Alumi-Bunk, Inc, unpublished Court of Appeals
dissenting opinion by KELLY, J., issued July 24, 2007 (Docket No. 270430),
at 5.
28
Abel v Eli Lilly & Co, 418 Mich 311, 335 (1984).
29
Id.
 ACTIONS ON APPLICATIONS 1087
Rutan, claims of fraudulent inducement are not barred by the economic
loss doctrine. Plaintiff presented credible evidence of defendant’s precon-
tractual fraud and misrepresentations distinct from its claims of breach
of contract. Therefore, it is entitled to its day in court. Accordingly,
because questions of fact remain unanswered regarding plaintiff’s alle-
gations, I would affirm the judgment of the Court of Appeals.
CAVANAGH, J. I join the statement of Justice KELLY.
BENEFIEL V AUTO-OWNERS INSURANCE COMPANY, No. 135778. On order of
the Court, the motion for leave to file a brief amicus curiae is granted.
Leave to appeal having been granted and the briefs and oral arguments
of the parties having been considered by the Court, we hereby vacate the
December 27, 2007, judgment of the Court of Appeals and remand this
case to the Livingston Circuit Court for further proceedings not incon-
sistent with this order. The Court of Appeals properly reversed the
Livingston Circuit Court’s grant of summary disposition for the defen-
dant because there remain disputed issues of fact. Viewing the evidence
in the light most favorable to the plaintiff, the defendant has failed to
show that, as a matter of law, the plaintiff cannot establish a serious
impairment of body function. See MCL 500.3135(7); Kreiner v Fischer,
471 Mich 109 (2004). For that reason, we reverse the September 25, 2006,
order of the Livingston Circuit Court that granted summary disposition
to the defendant.
The remainder of the Court of Appeals analysis is faulty, however,
because it is improperly premised on the plaintiff’s “normal life” as it
existed prior to his first accident. The Court of Appeals wrongly con-
cluded, as a matter of law, that the plaintiff established a serious
impairment of body function. A plaintiff who has suffered successive
injuries bears the burden of proving that his current injury was caused by
the subsequent accident (and not by some independent occurrence). See
Richman v City of Berkley, 84 Mich App 258, 263 (1978); M Civ JI 36.11
and 36.15. Therefore, the plaintiff must prove that his preexisting
impairment is temporary in order to have his pre-impairment lifestyle
considered as his “normal life.” It follows that, in this situation, the
plaintiff must show either that his preexisting impairment was exacer-
bated or that his recovery was prolonged as a result of the subsequent
accident for which he seeks noneconomic damages. Furthermore, this
subsequent impairment must meet the statutory threshold in order for
the plaintiff to recover noneconomic damages. Accordingly, we vacate the
entire Court of Appeals opinion. Court of Appeals No. 273664.
YOUNG, J. (concurring). I concur in the order. I write separately only to
point out that, contrary to Justice CAVANAGH’s statement, causation is
necessarily intertwined with the serious impairment inquiry under MCL
500.3135, because such an inquiry requires a preliminary finding with
regard to the permanence or non-permanence of the plaintiff’s preexist-
ing injury.
Justice CAVANAGH would allow a court to consider causation only after
determining whether the plaintiff’s combined injuries meet the serious
impairment threshold. This would allow a plaintiff who has suffered an
earlier, permanent injury that itself amounts to a serious impairment of
body function (such as the amputation of a leg) to recover noneconomic
1088 482 MICHIGAN REPORTS
damages for any injury caused by a subsequent accident, however minor
those actual injuries are. Such a result is inconsistent with the no-fault
statutory scheme, which allows plaintiffs to recover noneconomic dam-
ages when the injuries caused by the defendant’s negligence meet the
serious impairment threshold. Even the Court of Appeals acknowledged
that a plaintiff is not entitled to use a preexisting, permanent injury to
reach the serious impairment threshold. Benefiel v Auto-Owners Ins Co,
277 Mich App 412, 419-420 (2007). Accordingly, I concur in the entirety
of this Court’s order.
CAVANAGH, J. (concurring in part and dissenting in part). I agree that
we should affirm the Court of Appeals reversal of the trial court’s grant
of summary disposition for the defendant because the plaintiff has
presented questions of fact concerning whether his current injury meets
the statutory threshold for a serious impairment of a bodily function
under MCL 500.3135(7) and regarding whether any such serious impair-
ment was caused by the second accident. I also agree that the Court of
Appeals erred in holding that plaintiff established a serious impairment
as a matter of law. Thus, I too would remand to the trial court for further
proceedings.
However, I do not agree that, in a multiple accident scenario, a
plaintiff must prove that his preexisting impairment is not permanent in
order for his lifestyle before that preexisting impairment to be included in
his “normal life” evaluation. MCL 500.3135(7).
First, this new lack-of-permanency element is wholly absent from the
statute’s text. The statute simply does not include a lack-of-permanency
element as an exception to the general “normal life” analysis. On the
contrary, the statute simply states that a “ ‘serious impairment of body
function’ [is] an objectively manifested impairment of an important body
function that affects the person’s general ability to lead his or her normal
life.” Id. Accordingly, the serious impairment analysis focuses on the
plaintiff’s “normal life.” One’s normal life is not limited to the narrow
temporal snapshot directly before the accident. Nor is one’s normal life
limited to his life after a prior permanent injury. Instead, one’s normal
life includes a broader factual analysis than the majority order suggests
in this case.1 Accordingly, I respectfully dissent because I continue to
refuse to take part in this Court’s proclivity for using the judicial pen to
insert terms and definitions into the no-fault act.2

1
The majority in this case has accepted as much in Kreiner v Fischer,
471 Mich 109 (2004), in stating that “the effect of the impairment on the
course of a plaintiff’s entire normal life must be considered,” id. at 131,
and that the “[the evaluation includes] a multifaceted inquiry, comparing
the plaintiff’s life before and after the accident as well as the significance
of any affected aspects on the course of the plaintiff’s overall life,” id. at
132-133. Furthermore, “we merely require that the whole life be consid-
ered in determining what satisfies this threshold . . . .” Id. at 133 n 16
(emphasis in original).
2
See Kreiner, supra at 147-149 (CAVANAGH, J., dissenting).
 ACTIONS ON APPLICATIONS 1089
Second, the majority’s order wrongly conflates the distinct questions
of serious impairment and causation. I recognize that, in a multiple
accident scenario, an injury from a later accident may not equate to a
serious impairment because a claimant’s injuries from earlier accidents
were not sufficiently aggravated by the second accident. But, that
scenario implicates an issue of causation, rather than one of serious
impairment.
Causation and serious impairment are distinct issues. Indeed, the
serious impairment question focuses on a particular injury’s effect on the
claimant’s normal life. This involves a totality-of-the-circumstances
analysis of many subjective indicia of the injury’s effect on the claimant’s
entire normal life: medical history, work history, and recreational-activity
history.3 This stands in stark contrast to the causation analysis, which is
a simple objective evaluation of what factual differences in person A’s life
are legally attributable to person B’s actions. The causation question is
very limited in scope and it does not include extensive qualitative
analysis.
In sum, the serious impairment question concerns whether the injury
meets the statutory threshold, whereas the causation question simply
determines if the applicable accident caused the injury. While it is true
that both questions look at the claimant’s life before and after the
applicable accident, they are inherently different in both scope and
analysis. Accordingly, it is wrong to meld the two. But that is exactly what
the majority order does by adopting a lack-of-permanency element in the
serious impairment analysis. In essence, this new lack-of-permanency
element holds that if a claimant has a permanent injury, then the
claimant’s “normal life” analysis must not include consideration of his
life before the permanent injury. This wrongly makes a causation
conclusion dispositive on the distinct question of serious impairment. If
a defendant wishes to argue that his actions (or his insured’s actions) did
not cause claimant’s injuries because the claimant already had those
injuries (whether they be permanent or not), that is a causation
argument—not a serious impairment argument.4
Finally, I continue to believe that Kreiner was wrongly decided. But I
realize that a majority of this Court continues to believe otherwise.
Accepting this, I seriously question Kreiner’s efficacy as a clarion

3
See Kreiner, supra at 131, stating: The starting point in analyzing
whether an impairment affects a person’s “general,” i.e., overall, ability
to lead his normal life should be identifying how his life has been affected,
by how much, and for how long. Specific activities should be examined
with an understanding that not all activities have the same significance
in a person’s overall life.
4
Intuitively, when there is a permanent preexisting injury, many
defendants will be successful in arguing that a claimant’s current injuries
are unchanged by the latest accident. To be sure, those defendants are
entitled to dismissal, but their success rests on a lack of causation, not an
absence of serious impairment.
1090 482 MICHIGAN REPORTS
statement describing what does, or does not, establish a serious impair-
ment. Here, as in other post-Kreiner cases, the majority order simply
cites Kreiner’s rule and then adds an element that was wholly absent
from that decision.5 Kreiner simply does not include a lack-of-
permanency element in its comprehensive serious impairment analysis.
Hence, this new element is the latest edition of this Court’s changing
application of the statute under a fabricated application of Kreiner. I
must note that the majority order in this case validates my earliest
reservations about Kreiner, a case in which I observed that “[t]oday’s
decision [Kreiner] serves as a chilling reminder that activism comes in all
guises, including so-called textualism.” Id. at 157 (CAVANAGH, J., dissent-
ing).
WEAVER and KELLY, JJ. We join the statement of Justice CAVANAGH.
BIG L CORPORATION V COURTLAND CONSTRUCTION COMPANY, No.
136420. Pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal,
we vacate that portion of the judgment of the Court of Appeals that cites
Vugterveen Sys, Inc v Olde Millpond Corp, 454 Mich 119, 121 (1997), for the
applicable rule of statutory interpretation. Although the Court of Appeals
correctly stated that the Construction Lien Act (CLA) is to be liberally
construed to effectuate the purposes of the act and that substantial compli-
ance is sufficient, MCL 570.1302(1), it improperly relied on Vugterveen,
rather than MCL 570.1302(1), for those rules of statutory interpretation.
Big L Corp v Courtland Constr Co, 278 Mich App 438, 441 (2008). In all
other respects, the application for leave to appeal is denied, because we are
not persuaded that the questions presented should now be reviewed by this
Court. Reported below: 278 Mich App 438.
CORRIGAN, J. (concurring in part and dissenting in part). I concur in
the order striking the Court of Appeals’ citation of Vugterveen Sys, Inc v
Olde Millpond Corp, 454 Mich 119, 121 (1997), for the applicable rule of
statutory interpretation. I dissent, however, because I do not think that
eliminating the requirement of notarization, rendering the statement
furnished by the contractor in essence a mere notice, can be “substantial
compliance” under MCL 570.1110. The Legislature placed “notice”
provisions and a sample notice in MCL 570.1109; it put sworn statement
provisions in MCL 570.1110. In MCL 570.1110, our Legislature men-
tioned “sworn statement” 33 times. It provides a sample “sworn state-
ment” and creates penalties for making false sworn statements with
intent to defraud. In concluding that swearing is no longer necessary
under this section, we obliterate the distinction between notice in § 1109
and “sworn statement” in § 1110 that the Legislature crafted. I do not
think that either the familiar tenets of “liberal construction” or “sub-
stantial compliance” really allow us to go so far as to obliterate the
carefully crafted distinctions between notices in § 1109 and sworn
statements in § 1110.

5
See, e.g., Jones v Olson, 480 Mich 1169, 1169-1173 (2008) (CAVANAGH,
J., dissenting).
 ACTIONS ON APPLICATIONS 1091
The Construction Lien Act (CLA), MCL 570.1101 et seq., which took
effect on January 1, 1982, “was intended to protect the interests of
contractors, workers, and suppliers through construction liens, while pro-
tecting owners from excessive costs.” Vugterveen, supra at 121. To that end,
a contractor must submit a sworn statement to an owner when payment is
due or demanded, identifying each subcontractor, supplier, and laborer and
the amounts owed, and “the owner can rely on a sworn statement as a
comprehensive list of potential lien claimants.” Vugterveen, supra at 123;
MCL 570.1110(1), (4). An owner or contractor may also rely on a sworn
statement as a defense against a subcontractor’s claim of lien, unless the
subcontractor has submitted a timely notice of furnishing. Id. at 123-124;
MCL 570.1110(7). The Homeowner Construction Lien Recovery Fund was
statutorily created “to provide payment to subcontractors or suppliers when
a homeowner has already paid a contractor once in full for an improvement
to his house but the contractor misused or misappropriated the money
without first paying the supplier.” Erb Lumber, Inc v Gidley, 234 Mich App
387, 391 (1999).
In this case, plaintiff subcontractor filed suit, seeking recovery from
defendant Homeowner Construction Lien Recovery Fund. The trial court
granted a judgment for plaintiff, ruling that the contractor’s “sworn state-
ments,” which provided notice of the identity of the subcontractors, suppli-
ers, and laborers, and the amounts owed to each, did not substantially
comply with the CLA, MCL 570.1110(4), because they were not notarized.
Therefore, plaintiff’s late filing of a claim of lien did not defeat its right to a
lien. The Court of Appeals reversed in a published opinion. Big L Corp v
Courtland Construction Co, 278 Mich App 438 (2008). The panel held that
the “sworn statements” substantially complied with the CLA even though
they were not notarized. It observed that because the statements were
signed and dated, they fulfilled the statute’s “sworn statement” require-
ment by providing the owner with notice of the identity of the subcontrac-
tors, suppliers, and laborers and the amount owed to each for materials and
labor. It concluded that because the “sworn statements” substantially
complied with MCL 570.1110(4), plaintiff’s claim of lien for materials
furnished before the date of its notice was defeated because the notice was
untimely. Big L, supra at 444-445.
In ruling that an unsworn statement was not in substantial compli-
ance with MCL 570.1110, the trial court properly looked to the statutory
language itself. It compared MCL 570.1110, which requires contractors
and subcontractors to furnish a “sworn statement,” under certain
circumstances, with MCL 570.1109, which governs the requirement of
subcontractors and laborers to provide a “notice of furnishing.” MCL
570.1110 provides, in part:
(1) A contractor shall provide a sworn statement to the owner or
lessee in each of the following circumstances:
(a) When payment is due to the contractor from the owner or
lessee or when the contractor requests payment from the owner or
lessee.
(b) When a demand for the sworn statement has been made by
or on behalf of the owner or lessee.
1092 482 MICHIGAN REPORTS
(2) A subcontractor shall provide a sworn statement to the
owner or lessee when a demand for the sworn statement has
been made by or on behalf of the owner or lessee and, if
applicable, the owner or lessee has complied with the require-
ments of subsection (6).
(3) A subcontractor shall provide a sworn statement to the
contractor when payment is due to the subcontractor from the
contractor or when the subcontractor requests payment from the
contractor.
(4) A sworn statement shall list each subcontractor and
supplier with whom the person issuing the sworn statement has
contracted relative to the improvement to the real property. The
sworn statement shall contain a list of laborers with whom the
person issuing the sworn statement has contracted relative to
the improvement to the real property and for whom payment for
wages or fringe benefits and withholdings are due but unpaid
and the itemized amount of such wages or fringe benefits and
withholdings. The sworn statement shall be in substantially the
following form:

SWORN STATEMENT
State of Michigan)
) ss.
County of.............)
.................(deponent), being sworn, states the following:
.............................is the (contractor) (subcontractor) for an improve-
ment to the following real property in
..............County, Michigan,
described as follows:
...........................................................................................................
(insert legal description of property)

The following is a statement of each subcontractor and

supplier, and laborer for whom payment of wages or fringe
benefits and withholdings is due but unpaid, with whom the
(contractor) (subcontractor) has (contracted) (subcontracted)
for performance under the contract with the owner or lessee of
the property, and the amounts due to the persons as of the date
of this statement are correctly and fully set forth opposite their
names:
 ACTIONS ON APPLICATIONS 1093

Name,
address, Amount
and of
telephone laborer
number Amount fringe
of of benefits
subcontractor, Balance laborer and
supplier, Type of Total Amount Amount to wages withholdings
or improvement contract already currently complete due but due but
laborer furnished price paid owing (optional) unpaid unpaid
.................................................................................................................
Totals
(Some columns are not applicable to all persons listed)

The contractor has not procured material from, or subcon-

tracted with, any person other than those set forth and owes no
money for the improvement other than the sums set forth.
I make this statement as the (contractor) (subcontractor) or as
.................... of the (contractor) (subcontractor) to represent to the
owner or lessee of the property and his or her agents that the
property is free from claims of construction liens, or the
possibility of construction liens, except as specifically set forth
in this statement and except for claims of construction liens by
laborers that may be provided under section 109 of the con-
struction lien act, 1980 PA 497, MCL 570.1109.
WARNING TO OWNER OR LESSEE: AN OWNER OR LESSEE
OF THE PROPERTY SHALL NOT RELY ON THIS SWORN
STATEMENT TO AVOID THE CLAIM OF A SUBCONTRACTOR,
SUPPLIER, OR LABORER WHO HAS PROVIDED A NOTICE OF
FURNISHING OR A LABORER WHO MAY PROVIDE A NOTICE
OF FURNISHING UNDER SECTION 109 OF THE CONSTRUC-
TION LIEN ACT, 1980 PA 497, MCL 570.1109, TO THE DESIGNEE
OR TO THE OWNER OR LESSEE IF THE DESIGNEE IS NOT
NAMED OR HAS DIED.
IF THIS SWORN STATEMENT IS IN REGARD TO A RESI-
DENTIAL STRUCTURE, ON RECEIPT OF THE SWORN STATE-
MENT, THE OWNER OR LESSEE, OR THE OWNER’S OR LES-
SEE’S DESIGNEE, MUST GIVE NOTICE OF ITS RECEIPT,
EITHER IN WRITING, BY TELEPHONE, OR PERSONALLY, TO
EACH SUBCONTRACTOR, SUPPLIER, AND LABORER WHO
HAS PROVIDED A NOTICE OF FURNISHING UNDER SECTION
109 OR, IF A NOTICE OF FURNISHING IS EXCUSED UNDER
SECTION 108 OR 108A, TO EACH SUBCONTRACTOR, SUP-
PLIER, AND LABORER NAMED IN THE SWORN STATEMENT.
IF A SUBCONTRACTOR, SUPPLIER, OR LABORER WHO IS
ENTITLED TO NOTICE OF RECEIPT OF THE SWORN STATE-
MENT MAKES A REQUEST, THE OWNER, LESSEE, OR DESIG-
NEE SHALL PROVIDE THE REQUESTER A COPY OF THE
SWORN STATEMENT WITHIN 10 BUSINESS DAYS AFTER
RECEIVING THE REQUEST.
.................................
Deponent
1094 482 MICHIGAN REPORTS
WARNING TO DEPONENT: A PERSON WHO GIVES A
FALSE SWORN STATEMENT WITH INTENT TO DEFRAUD IS
SUBJECT TO CRIMINAL PENALTIES AS PROVIDED IN SEC-
TION 110 OF THE CONSTRUCTION LIEN ACT, 1980 PA 497,
MCL 570.1110.

Subscribed and sworn to before me on ............................. (DATE)

..........................................................................
Notary Public, ............... County, Michigan.
My commission expires: ....................... .

(5) The contractor or subcontractor is not required to list in the

sworn statement material furnished by the contractor or subcon-
tractor out of his or her own inventory that was not purchased
specifically for performing the contract.
(6) On receipt of a sworn statement regarding an improve-
ment to a residential structure, the owner, lessee, or designee
shall give notice of its receipt, either in writing, by telephone, or
personally, to each subcontractor, supplier, and laborer who has
provided a notice of furnishing under section 109 or, if a notice
of furnishing is excused under section 108 or 108a, to each
subcontractor, supplier, and laborer named in the sworn state-
ment. If a subcontractor, supplier, or laborer entitled to notice
under this subsection requests a copy of the sworn statement,
the owner, lessee, or designee shall provide the requester a copy
within 10 business days after receiving the request.
(7) After the contractor or subcontractor provides the sworn
statement, the owner or lessee may withhold or, upon written
demand from the contractor, shall withhold from the amount
due or to become due to the contractor or to the subcontractor
for work already performed an amount sufficient to pay all sums
due to subcontractors, suppliers, or laborers, as shown by the
sworn statement, or due to lien claimants who have provided a
notice of furnishing under section 109. . . .
(8) An owner, lessee, designee, mortgagee, or contractor may
rely on a sworn statement prepared by a party other than himself
or herself to avoid the claim of a subcontractor, supplier, or
laborer unless the subcontractor, supplier, or laborer has pro-
vided a notice of furnishing as required under section 109 or
unless the notice of furnishing is excused under section 108 or
108a.
(9) If a contractor fails to provide a sworn statement to the
owner or lessee before recording the contractor’s claim of lien,
the contractor’s construction lien is not invalid. However, the
contractor is not entitled to any payment, and a complaint,
cross-claim, or counterclaim may not be filed to enforce the
construction lien, until the sworn statement has been provided.
 ACTIONS ON APPLICATIONS 1095
(10) If a subcontractor fails to provide a sworn statement
under subsection (2) to the owner or lessee before recording the
subcontractor’s claim of lien, the subcontractor’s construction
lien is valid. However, a complaint, cross-claim, or counterclaim
may not be filed to enforce the construction lien until the sworn
statement has been provided.
(11) A contractor or subcontractor who desires to draw
money and gives or causes to be given to any owner or lessee a
sworn statement required by this section that is false, with
intent to defraud, is guilty of a crime as follows: . . . . [Em-
phasis added.]
In contrast, MCL 570.1109 provides, in part:
(1) Except as otherwise provided in sections 108, 108a, and 301,
a subcontractor or supplier who contracts to provide an improve-
ment to real property shall provide a notice of furnishing to the
designee and the general contractor, if any, as named in the notice
of commencement at the address shown in the notice of com-
mencement, either personally or by certified mail, within 20 days
after furnishing the first labor or material. . . .
(2) Except as otherwise provided in sections 108 and 108a, a
laborer who contracts to provide an improvement to real property
shall provide a notice of furnishing to the designee and the general
contractor, if any, as named in the notice of commencement at the
address shown in the notice of commencement, either personally
or by mail, within 30 days after wages were contractually due but
were not paid. . . .
(3) Except as otherwise provided in sections 108 and 108a, a
laborer who provides an improvement to real property shall
provide a notice of furnishing to the designee and the general
contractor, if any, named in the notice of commencement at the
address shown in the notice of commencement, either personally
or by certified mail, by the fifth day of the second month following
the month in which fringe benefits or withholdings from wages
were contractually due but were not paid. . . .
(4) The notice of furnishing, if not given on the form attached
to the notice of commencement, shall be in substantially the
following form:

NOTICE OF FURNISHING
To: ......................................................................................................
(name of designee (or owner or lessee) from notice of commencement)
.............................................................................................................
(address from notice of commencement)
Please take notice that the undersigned is furnishing to...............
.............................................................................................................
(name and address of other contracting party)
1096 482 MICHIGAN REPORTS
certain labor or material for.............................................................
(describe type of work)
in connection with the improvements to the real property decribed
in the notice of commencement recorded in liber.............................,
on page......,.............................................................................records.
(name of county)
.............................................................................................................
or (a copy of which isttached hereto)

WARNING TO OWNER: THIS NOTICE IS REQUIRED BY

THE MICHIGAN CONSTRUCTION LIEN ACT. IF YOU HAVE
ANY QUESTIONS ABOUT YOUR RIGHTS AND DUTIES
UNDER THIS ACT, YOU SHOULD CONTACT AN ATTORNEY
TO PROTECT YOU FROM THE POSSIBILITY OF PAYING
TWICE FOR THE IMPROVEMENTS TO YOUR PROPERTY. .
...................................................................................................
(name and address of lien claimant)
by................................................................................................
(name and capacity of party signing for lien claimant)
...................................................................................................
(address of party signing)
Date: ............................... .

(5) The failure of a lien claimant to provide a notice of

furnishing within the time specified in this section shall not defeat
the lien claimant’s right to a construction lien for work performed
or materials furnished by the lien claimant after the service of the
notice of furnishing.
(6) The failure of a lien claimant, to provide a notice of
furnishing within the time specified in this section shall not defeat
the lien claimant’s right to a construction lien for work performed
or materials furnished by the lien claimant before the service of
the notice of furnishing except to the extent that payments were
made by or on behalf of the owner or lessee to the contractor
pursuant to either a contractor’s sworn statement or a waiver of
lien in accordance with this act for work performed or material
delivered by the lien claimant. This subsection does not apply to a
laborer.
(7) The failure of a laborer to provide a notice of furnishing to
the designee as required by subsection (2) shall defeat the laborer’s
lien for those wages for which the notice of furnishing is required.
 ACTIONS ON APPLICATIONS 1097
(8) The failure of a laborer to provide a notice of furnishing to
the designee as required by subsection (3) shall defeat the laborer’s
lien for those fringe benefits and withholdings for which the notice
of furnishing is required.
(9) The failure of a laborer to provide a notice of furnishing to
the general contractor within the time specified in subsection (2)
or (3) shall not defeat the laborer’s right to a construction lien, but
the laborer shall be liable for any actual damages sustained by the
general contractor as a result of the failure.
(10) One or more laborers may authorize an agent to prepare
and serve a notice of furnishing in the manner provided in this
section. Notice of furnishing under this section may contain the
notice of furnishing of more than 1 laborer and shall contain the
information required in subsection (4) as to each laborer for
whom it is prepared. The notice of furnishing of each lien
claimant under this subsection shall be considered by the court
on its own merits. [Emphasis added.]

The trial court compared MCL 570.1110 with MCL 570.1109 and
observed that where the Legislature contemplated a notice require-
ment only, it simply used the word “notice.” In contrast to MCL
570.1110, in which the words “sworn statement” appear more than 30
times, MCL 570.1109 contains no mention of sworn statements or
notarization, and speaks only in terms of notice. In addition, MCL
570.1109(4) provides a sample “Notice of Furnishing” form, which
includes spaces for the names and addresses of the contracting parties,
descriptions of the work to be performed and the property, and for the
signature of the lien claimant. This is in contrast to the jurat provided
in MCL 570.1110(4). As the trial court also noted, both MCL 570.1109
and MCL 570.1110 took effect on January 1, 1982. The differences
between the language of these provisions and the sample forms they
provide suggest that the Legislature specifically intended to require a
notarized statement in MCL 570.1110 and that submission of an
unsworn statement cannot constitute substantial compliance with
that requirement.
In light of the deliberate differences between these two provisions,
I cannot agree with the Court of Appeals that a contractor substan-
tially complies with the requirements of MCL 570.1110 when its
unsworn “sworn” statement gives the owner notice of the identity of
the subcontractors, suppliers, and labors, and the amount owed to
each, but is not notarized. This Court has recognized in other contexts
that swearing an oath before a notary means more than establishing
one’s identity. For example, as the Court of Appeals noted in Horton v
Verhelle, 231 Mich App 667, 676 (1998), overruled on other grounds
Smith v Globe Life Ins Co, 460 Mich 446 (1999), this Court has held
that an affidavit that is neither signed nor sworn is not valid. Prussing
v Gen Motors Corp, 403 Mich 366, 369-370 (1978); People v Burns, 161
Mich 169, 173 (1910).
1098 482 MICHIGAN REPORTS
I would also grant leave to appeal because the published Court of
Appeals decision chooses between two prior conflicting Court of
Appeals cases. In Horton, supra at 148, the Court held that “a
contractor’s statement that is neither signed nor sworn is not a
‘sworn’ statement as required by subsection 110(4).” In Alan Custom
Homes, Inc v Krol, 256 Mich App 505, 510 (2003), the Court deter-
mined that an unverified statement substantially complied with the
notice requirement of MCL 570.1110(8), because it gave the owner
notice of the identity of the subcontractors, suppliers, and laborers,
and the amount owed to each for labor and materials. Aside from
noting that Alan Custom Homes was the more recent case, the Court
did not explain its reasons for disregarding the reasoning in Horton.
Big L, supra at 443-444.
Finally, I do not think footnote 4 of the Court of Appeals opinion, id.
at 444 n 4, supports the Court’s argument. In the footnote, the Court
rejected plaintiff’s argument that contractors will be more likely to
submit false statements if they are not required to notarize their “sworn
statements” because they will no longer be subjected to prosecution. The
panel concluded that MCL 570.1110(11), which provides that a contrac-
tor who submits a false sworn statement is guilty of a crime, would
“sufficiently deter general contractors from submitting false sworn
statements even absent the threat of prosecution for perjury.” Big L,
supra at 444 n 4. I do not see how. If a contractor submits an unnotarized
statement, the statement is not “sworn.” The contractor could not be
subject to the penalties under MCL 570.1110(11) because a crucial
element of the offense is missing.
Accordingly, I dissent from this Court’s order denying plaintiff’s
application for leave to appeal.
WEAVER, J. I would deny leave to appeal because I am not persuaded
that the questions presented should be reviewed by this Court.
CAVANAGH and KELLY, JJ. We join the statement of Justice WEAVER.

Leave to Appeal Denied December 12, 2008:

BUDGET RENT-A-CAR SYSTEM, INC V CITY OF DETROIT, No. 133887. On

order of the Court, leave to appeal having been granted and the briefs and
oral arguments of the parties having been considered by the Court, we
vacate our order of May 2, 2008. The application for leave to appeal the
February 1, 2007, judgment of the Court of Appeals is denied, because we
are no longer persuaded that the questions presented should be reviewed
by this Court. Court of Appeals No. 271703.
MARKMAN, J. (concurring). The result in this case—affording no-fault
benefits to a fleeing felon who was aiming a firearm at a pursuing police
officer—is extremely troubling, but I agree with this Court and with the
Court of Appeals that the law is clear that an insurer is required to pay
 ACTIONS ON APPLICATIONS 1099
personal protection insurance benefits for any “accidental bodily injury
arising out of the . . . use of a motor vehicle as a motor vehicle . . . .”
MCL 500.3105(1). Moreover, “[e]ven though a person knows that bodily
injury is substantially certain to be caused by his act or omission, he does
not cause or suffer injury intentionally if he acts or refrains from acting
for the purpose of averting injury to property or to any person including
himself.” MCL 500.3105(4). I see no basis for the dissent’s conclusion
that the claimant did not act “for the purpose of averting injury
to . . . any person including himself.” However reprehensible his conduct,
the claimant clearly acted for the purpose of averting injury to himself, if
not to anyone else.
Further, while I view the instant result to verge on the “absurd,” it
is difficult in light of the Legislature’s response to an earlier, similar
decision of this Court to conclude, as the “absurd results” rule
requires, that it is “impossible that [our Legislature] could have
intended the result . . . .” Public Citizen v United States Dep’t of
Justice, 491 US 440, 471 (1989) (Kennedy, J., concurring). In Brown v
Michigan Millers Mut Ins Co, 467 Mich 886 (2002), a passenger in a
vehicle involved in a drive-by shooting was awarded no-fault benefits
when he was injured as the vehicle fled from the scene of the shooting.
This Court denied leave to appeal, and I wrote a statement character-
izing this result as a “social problem,” and calling this “to the
attention of the Legislature.” Given that the Legislature has been
made aware of this problem, and has chosen not to amend the law in
the ensuing six years, I can only conclude that the words of this
statute mean what they say and that the Legislature does intend that
a no-fault insurer be liable in these circumstances. It is for the
Legislature to determine our laws, and, for better or worse, it has
clearly done so here.
WEAVER, J. (dissenting). I dissent from the order vacating this Court’s
order of May 2, 2008, granting the defendants’ application for leave to
appeal.
Having heard oral argument, I would reverse the Court of Appeals
judgment that affirmed the trial court’s grant of summary disposition in
the plaintiff’s favor and would hold that the plaintiff is not entitled to
reimbursement from the defendants for no-fault benefits the plaintiff
mistakenly paid to the claimant.1
The claimant was not entitled to no-fault benefits because his injuries
did not arise out of an “accidental bodily injury” as defined in MCL

1
The plaintiff, Budget Rent-a-Car System, Inc., which is self-
insured, paid personal protection insurance benefits to the claimant
after he rented a vehicle from the plaintiff and was subsequently
injured. The plaintiff now seeks reimbursement from both defendants,
the city of Detroit and the Detroit Police Department, which are also
self-insured.
1100 482 MICHIGAN REPORTS
500.3105.2 The injuries sustained by the claimant occurred as a result of
the claimant’s use of a vehicle rented from the plaintiff for the commis-
sion of criminal acts.3
While the claimant may not have intended to be injured, he “caused”
his injuries by intentionally engaging in criminal behavior that put him
at risk of injury and in fact resulted in his injuries. Indeed, MCL
500.3105(4) provides that even if a claimant “knows that bodily injury is
substantially certain to be caused by his act or omission, he does not

2
MCL 500.3105(4) states:

Bodily injury is accidental as to a person claiming personal

protection insurance benefits unless suffered intentionally by the
injured person or caused intentionally by the claimant. Even
though a person knows that bodily injury is substantially certain
to be caused by his act or omission, he does not cause or suffer
injury intentionally if he acts or refrains from acting for the
purpose of averting injury to property or to any person including
himself.
3
The Court of Appeals summarized the facts as follows:

Hurt [claimant] rented a 2004 Monte Carlo automobile from

plaintiff on approximately December 27, 2003. Hurt was operat-
ing the vehicle on January 16, 2004 when the Detroit Police
observed Hurt allegedly engaged in a suspected narcotics transac-
tion. Detroit Police Officer Arthur Wimmer responded to a radio
call regarding the transaction. Wimmer, who was driving an
unmarked police vehicle, stopped the vehicle as part of a traffic
stop. As Wimmer approached the rented vehicle on foot, Hurt sped
away at a high rate of speed. Wimmer followed Hurt’s vehicle at an
accelerated pace until Hurt lost control of the rented vehicle and it
eventually came to a stop off the traveled portion of the road.
Wimmer’s police report and deposition state that he remained in
his police vehicle while he approached Hurt in an attempt to
contain Hurt until additional police assistance arrived. The police
report also states that Hurt exited the driver’s door of the rented
vehicle with a handgun in his hand and pointed it directly at
Wimmer from a semi-crouched position between the open door and
the interior of the automobile. Wimmer ducked down, accelerated,
and crashed into the driver’s side door of the rented vehicle,
resulting in damage to the vehicle and injury to Hurt. Hurt then
ran away into an alley where police took him into custody. Hurt
suffered laceration of his left leg and received treatment at Detroit
Receiving Hospital. [Budget Rent-A-Car Sys, Inc v Detroit, unpub-
lished opinion per curiam of the Court of Appeals, issued February
1, 2007 (Docket No. 271703), p 1.]
 ACTIONS ON APPLICATIONS 1101
cause or suffer injury intentionally if he acts or refrains from acting for
the purpose of averting injury to property or to any person including
himself.”
Because the claimant did not act, or refrain from acting, “for the
purpose of averting injury to . . . any person including himself,” the
claimant’s injuries were not “accidental.” Thus, I dissent and would
reverse the Court of Appeals judgment affirming the trial court’s grant of
summary disposition to the plaintiff. Any remedy for plaintiff’s error in
mistakenly paying the claimant no-fault benefits for injury stemming
from the claimant’s intentional criminal activity must be pursued against
the claimant.
BEACH V KELLY AUTOMOTIVE GROUP, INC, No. 136518; Court of Appeals
No. 274142.
YOUNG, J. (concurring). I concur in this Court’s decision to deny leave
to appeal. Although the attorney fee award in this case is disproportion-
ate to “the amount involved and the results obtained,”1 I believe that the
lower courts properly attributed the extraordinary fees to defendant’s
conduct, which unnecessarily caused additional costs.
After an 11-day bench trial, the district court determined that
defendant violated the Motor Vehicle Service and Repair Act (MVSRA),
MCL 257.1301 et seq., and awarded plaintiff a total of $11,716.46 in
damages. Pursuant to MCL 257.1336,2 defendant was liable for plaintiff’s
“reasonable attorney fees.” Plaintiff sought attorney fees and submitted
her attorney’s billing statement, which indicated that the attorney
expended 359.45 hours at a rate of $200 an hour. Plaintiff reduced the
product by $2,000 for sanctions that defendant previously paid and
requested $69,890 in attorney fees. After a hearing on plaintiff’s motion
for attorney fees, the district court reduced the requested rate to $150 an
hour, but credited plaintiff’s attorney for all of the time that she claimed
and awarded plaintiff $51,917.45 in attorney fees.
Defendant appealed the verdict and the fee award to the circuit court.
The circuit court affirmed the district court and held a hearing on
plaintiff’s motion for appellate attorney fees. Plaintiff again submitted
her attorney’s billing statement, which indicated that she expended

1
MRPC 1.5(a)(4).
2
MCL 257.1336 provides:

A facility that violates [the Motor Vehicle Service and Repair

Act] or who, in a course of dealing as set forth in this act or rules,
engages in an unfair or deceptive method, act, or practice, is liable
as provided in this act to a person who suffers damage or injury as
a result thereof in an amount equal to the damages plus reason-
able attorney fees and costs. If the damage or injury to the person
occurs as the result of a wilful and flagrant violation of this act, the
person shall recover double the damages plus reasonable attorney
fees and costs.
1102 482 MICHIGAN REPORTS
327.25 hours on the appeal at a rate of $250, for a total of $81,812.50 in
attorney fees. The circuit court reduced the hours claimed to 267.25
hours and plaintiff voluntarily reduced her requested rate to $200 an
hour. The circuit court awarded an additional $2,100 for time spent on
the motion hearing, and awarded a total of $55,550 in attorney fees.
Thus, plaintiff has been awarded $107,467.45 in attorney fees, despite
only obtaining $11,716.46 in damages.
In Smith v Khouri, I joined the lead opinion holding that consider-
ation of MRPC 1.5(a)(4) (“the amount in question and the results
achieved”) was “not a relevant consideration in determining a reasonable
attorney fee for case-evaluation sanctions.”3 That was unique to the
policy underlying case evaluation sanctions:
[T]he purpose of MCR 2.403(O) is to encourage serious
consideration of case-evaluation awards and penalize a party
that “should have” accepted the case evaluation. The rejecting
party that does not achieve a more favorable result must pay
reasonable attorney fees “for services necessitated by the rejec-
tion . . . .” MCR 2.403(O)(6). It would be inconsistent with
MCR 2.403(O) to reduce the accepting party’s reasonable attor-
ney fees “for services necessitated by the rejection” on the basis
of the amount in question or the results achieved. If we were to
do so, the accepting party could have properly evaluated the
case value, yet be forced to incur additional fees, potentially in
excess of the case’s value. Reducing the accepting party’s
reasonable attorney fees necessitated by the rejection because
they exceed or are disproportionate to the value the accepting
party correctly assessed undermines the rule. MCR 2.403(O)
penalizes the rejecting party who incorrectly valued the case,
not the accepting party who correctly assessed the case’s value
at a much earlier and efficient time. Reducing the accepting
party’s reasonable attorney fees on the basis of more propor-
tionality simply encourages the inefficiency the rule seeks to
combat.[4]
There is no similar reason to disregard the “the amount in question
and the results achieved” for attorney fees under provisions similar to
MCL 257.1336.
Pursuant to § 1336, plaintiff is entitled to “reasonable attorney fees.”
The Court of Appeals observed that “[t]he monetary value of the damages
in [consumer protection] cases is often low and the attorney fee award in
these cases must be sufficient to provide a reasonable return on the

3
481 Mich 519, 534 n 20 (2008).
4
Id.
 ACTIONS ON APPLICATIONS 1103
attorneys’ time investment.”5 The purpose is to make it economically
possible for attorneys to represent plaintiffs in consumer protection
cases, “not . . . to provide a form of economic relief to improve the
financial lot of attorneys or to produce windfalls.”6 Adjusting attorney
fees based on “the amount in question and the results achieved” is not
antithetical to the purpose of § 1336. Unlike MCR 2.403(O), which seeks
to increase efficiency and penalize a rejecting party that “should have”
accepted a case evaluation, § 1336 simply seeks to ensure a reasonable
return on the attorney’s time investment, i.e., that the attorney receives
a reasonable fee. Thus, all the Wood7 and MRPC 1.5(a) factors, including
“the amount in question and the results achieved,” are relevant.
Nevertheless, I do not believe that the lower courts erred or that
defendant is entitled to relief. In Khouri, a majority of this Court agreed
that courts are not limited to the Wood and MRPC 1.5(a) factors when
considering attorney fee awards: “To the extent a trial court considers
any factor not enumerated in Wood or MRPC 1.5(a), the court should
expressly indicate this and justify the relevance and use of the new
factor.”8 I believe that defendant’s culpability for the extraordinary
attorney fees justifies the award,9 and the lower courts properly “indi-
cate[d] this and justif[ied] the relevance and use of the new factor.”
The district court expressly addressed the defendant’s culpability for
the exceptional fees. That court thought that defendant’s approach to the
litigation—a “complete denial” and “complete lack of cooperation”—
directly caused plaintiff’s attorney to expend a disproportionate amount
of time on the case: “[I]t was one of those cases where the . . . number of
hours spent by Plaintiff’s counsel was mainly dictated by the way in
which [defendant] dealt with this case . . . .” Because of the defendant’s
conduct, the district court expressly stated that it was “really not
concerned about the hours.” Indeed, the time expended by plaintiff’s
attorney would have been greatly reduced if defendant had not submitted
what the circuit court determined to be false affidavits.
On appeal to the circuit court, defendant filed a 13-question, fact-
intensive appeal, which generated an 80-page bench opinion. The circuit

5
Beach v Kelly Automotive Group, Inc, unpublished opinion per curiam
of the Court of Appeals, issued April 15, 2008 (Docket No. 274142), at 2,
citing Jordan v Transnational Motors, Inc, 212 Mich App 94, 98-99
(1995).
6
Khouri, supra at 528.
7
Wood v Detroit Automobile Inter-Ins Exch, 413 Mich 573 (1982).
8
Khouri, supra at 531 n 15.
9
See City of Riverside v Rivera, 477 US 561, 594 (1986) (Rehnquist, J.,
dissenting) (“If the litigation is unnecessarily prolonged by the bad-faith
conduct of the defendants, . . . then the purpose of Congress in authoriz-
ing attorney’s fees under [42 USC 1988] should allow a larger award of
attorney’s fees than would be ‘reasonable’ where the only relief is the
recovery of monetary damages by individual plaintiffs.”).
1104 482 MICHIGAN REPORTS
court stated that defendant’s appellate brief was “unfocused” and
explained the consequences of such a brief:

[Q]uite often . . . the brief filed by one party will drive the
briefs . . . and there were statements in here [defendant’s brief],
sort of generalized statements about what went on [at tri-
al] . . . that are difficult to in terms of time . . . to confirm one way
or the other. A statement for example, [“]appellee failed to offer
any evidence as to the condition of McInerny’s[”] . . . . Actually it
turns out that, that is not true . . . but I understand why counsel
makes this statement, but in order to analyze that and then fit it
in the broader picture, requires a consideration of a lot of paper.

The circuit court, therefore, properly attributed the amount of

plaintiff’s appellate attorney fees to defendant because defendant’s
“unfocused” brief drove the appellate litigation.
Moreover, even without this Court’s guidance in Khouri,10 the lower
courts used a statistical survey from the State Bar to determine a
reasonable rate and then multiplied that rate by the reasonable hours
expended.11 Indeed, using the survey, the district court reduced plaintiff’s
requested rate from $200 an hour to $150 an hour. The circuit court
reduced the hours requested from 327.25 hours to 267.25 hours because
it determined that plaintiff’s counsel could only reasonably expend
267.25 hours on the appeal. Each court then multiplied the rate by the
reasonable hours expended to arrive at the fee award.
Accordingly, I do not believe that the lower courts erred. I believe that
the circuit court and the district court expressly and properly attributed
the extraordinary fees to defendant’s conduct, and I concur in this
Court’s decision to deny leave to appeal.
TAYLOR, C.J. I join the statement of Justice YOUNG.
CORRIGAN and MARKMAN, JJ. We would reverse the judgment of the
Court of Appeals, vacate the circuit court and district court orders
awarding attorney fees, and remand the case to the trial court for
reconsideration of plaintiff’s request for attorney fees because we believe
the district court clearly erred in refusing to consider the amount of the

10
This case was decided by the Court of Appeals on April 15, 2008.
Khouri was decided on July 2, 2008.
11
See Khouri, supra at 530-531, holding:

[A] trial court should begin its analysis by determining the fee
customarily charged in the locality for similar legal services, i.e.,
factor 3 under MRPC 1.5(a). In determining this number, the court
should use reliable surveys or other credible evidence of the legal
market. This number should be multiplied by the reasonable
number of hours expended in the case (factor 1 under MRPC 1.5[a]
and factor 2 under Wood).
 ACTIONS ON APPLICATIONS 1105
judgment as a factor in determining a reasonable attorney fee. See the
concurring statement of CORRIGAN, J., joined by MARKMAN, J., in Smith v
Khouri, 481 Mich 519, 538 (2008).
In re BARNES (DEPARTMENT OF HUMAN SERVICES V BARNES), No. 137681;
Court of Appeals No. 284630.

Leave to Appeal Granted December 15, 2008:

BUSH V SHABAHANG, Nos. 136617, 136653, and 136983. On November

19, 2008, the Court heard oral argument on the applications for leave to
appeal the May 1, 2008, judgment of the Court of Appeals. On order of the
Court, the applications are again considered, and they are granted,
limited to the issues: (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 malprac-
tice action. Reported below: 278 Mich App 703.
KELLY, J. (concurring). I concur in the order granting leave to appeal.
However, I would welcome briefing and argument on all issues raised in
the three cases in which leave to appeal has been granted.

Summary Disposition December 15, 2008:

PEOPLE V HOLMES, No. 137380. Pursuant to MCR 7.302(G)(1), in lieu of

granting leave to appeal, we reverse the judgment of the Court of Appeals
and reinstate the defendant’s convictions. The trial court did not abuse
its discretion in denying the jury’s request for a copy of the entire
transcript after a little over an hour of deliberation. Because the jury
requested the entire transcript and did not request “a review of certain
testimony or evidence,” the trial court did not violate MCR 6.414(J). The
defendant did not demonstrate plain error affecting his substantial
rights. People v Carines, 460 Mich 750, 763 (1999). Court of Appeals No.
277816.
MARKMAN, J. (concurring). I concur in this Court’s decision to reverse
the judgment of the Court of Appeals and reinstate defendant’s convic-
tions. I write separately only to respond to the dissent’s statement that
the instant case is “similar” to People v Howe, 392 Mich 670 (1974). In
Howe, the jury requested “certain testimony,” MCR 6.414(J), i.e., that of
the two principal witnesses in the case, whereas, in the instant case, the
jury requested the testimony of all the witnesses. Even more signifi-
cantly, however, in Howe, the trial court denied the jury’s request
outright and made it clear that it would not reconsider its decision
because it thought, incorrectly, that it would be improper to provide the
jurors with the testimonies of two witnesses only, and not those of other
witnesses, because the jury might place too much emphasis on the
1106 482 MICHIGAN REPORTS
testimonies of those two witnesses. By contrast, in the instant case, the
trial court’s decision was clearly provisional because it made clear that
the only reason it was denying the request “at this juncture” was because
a transcript was not “yet” available. Therefore, unlike the court in Howe,
the court here clearly did not “foreclose[]” the “possibility of having the
testimony . . . reviewed at a later time,” as is prohibited by MCR 6.414(J).
KELLY, J. (dissenting). I would affirm the judgment of the Court of
Appeals and remand the case for a new trial. Defendant was on trial for
various weapons charges. The jury sent several notes to the judge during
deliberations. One of the notes, sent about an hour into deliberations,
requested a transcript of the testimony. The trial court instructed the
jury:
The case isn’t old enough to have a transcript yet, and we’ve
only had a day and a half of testimony, altogether maybe just a day.
You have to use your collective memories, your collective memories
as to what you saw and what you heard. At this juncture we do not
have a transcript. You may return to the jury room to continue
your deliberations.

Defense counsel neither objected to nor approved of the instruction.

The jury never again asked the court for a transcript.
MCR 6.414(J), which governs jury requests for testimony, provides:
If, after beginning deliberation, the jury requests a review of
certain testimony or evidence, the court must exercise its discre-
tion to ensure fairness and to refuse unreasonable requests, but it
may not refuse a reasonable request. The court may order the jury
to deliberate further without the requested review, so long as the
possibility of having the testimony or evidence reviewed at a later
time is not foreclosed.

It was, of course, entirely reasonable that the trial judge in this case could
not provide the jury with a trial transcript soon after the jury began its
deliberations. Nevertheless, under MCR 6.414(J) a judge may not fore-
close the possibility of a jury review of the transcript at a later time.
This Court considered similar circumstances in People v Howe1 when
the jury requested the transcript of testimony from two witnesses. In
Howe, this Court determined that the trial judge had erred in responding
to the jurors’ request for testimony because the judge (1) “never
indicated to the jury that a more specific request would be granted,” (2)
“never indicated to the jury that their request could be entertained at a

1
People v Howe, 392 Mich 670 (1974). Justice MARKMAN points out that,
in Howe, the jury requested the testimony of only two witnesses, whereas
in this case it requested the testimony of all the witnesses. This fact is not
key to Howe’s application here. Regardless of the scope of a request, a
trial judge cannot foreclose the possibility of having the testimony or
evidence reviewed at a later time.
 ACTIONS ON APPLICATIONS 1107
later point in their deliberations,” (3) “clearly stated that he could not
grant [the jurors’] request,” and (4) “instructed the jury to ‘rely on your
memory[,]’ thus directing them to attempt to reach a verdict based upon
what they were able to recall from the trial testimony.”2 All of these
errors occurred in the present case.
Given the trial judge’s instruction, a reasonable juror would infer that
there would be no opportunity to review any of the trial testimony.3 The jury
was not afforded any alternatives to a trial transcript, such as having the
court reporter read back portions of the testimony.4 Nor was the jury told
when a trial transcript would be available so it could renew its request.
The jurors were told to use their collective memory in deliberations.
As the Court of Appeals noted, it is impossible to know what effect the
trial transcript would have had on the jury’s deliberations. We do not
know what occurred in the jury room.5 The Court of Appeals correctly
found error that required reversal, because the trial court’s instructions
in this case left the jury with the impression that it was foreclosed from
reviewing any testimony at all. I would affirm.
CAVANAGH, J. I join the statement of Justice KELLY.

Leave to Appeal Denied December 15, 2008:

PEOPLE V CHRISTIAN SIERRA, No. 135772; Court of Appeals 277838.

CAVANAGH, J. I would grant leave to appeal.
KELLY, J. (dissenting). I dissent from the order. I would grant leave to
appeal so that this Court can fully explore and resolve the important
question raised.

FACTS AND PROCEDURAL HISTORY

At trial in this case, defendant sought to introduce testimony from a

2
Id. at 677-678.
3
Justice MARKMAN asserts that the trial court’s decision was “clearly
provisional.” There was nothing provisional about it. The judge refused the
jurors’ request for the transcripts. She then told them to return to the jury
room and rely on their collective memories. This left the jurors with the
impression that they had to continue deliberations and agree on a verdict
without any recapitulation of the testimony. Nothing in the trial judge’s
comments to the jury indicated that a transcript would be available at a
future time.
4
MCR 6.414(J) does not explicitly require the trial judge to provide the
jury with alternatives to unreasonable requests for testimony. Alternatives
may not be necessary in every situation. However, providing an alternative
here would have assured the jury that it was not foreclosed from reviewing
other sources of the trial testimony or the transcripts at a future time.
5
People v Smith, 396 Mich 109, 111 (1976). It is worth noting that in the
instant case the jury sent the judge a note stating that “we are undecided on
all three counts. There will be no anonymous [sic] decision.”
1108 482 MICHIGAN REPORTS
witness regarding the drug ring in which defendant allegedly participated.
The witness began testifying before the jury, but ceased when it became clear
that she was incriminating herself. Once counsel had been appointed for her,
she invoked her Fifth Amendment right against self-incrimination. The
parties then agreed that she was unavailable to testify.
Defendant sought to introduce the witness’s testimony from his
brother’s 1999 trial for possession of cocaine with intent to deliver. In
that trial, the witness had testified for the prosecution. In both proceed-
ings, the witness testified about her involvement in the drug ring with
defendant’s brothers, Domingo and Oscar, but also testified that she did
not know defendant. The prosecution opposed the defense motion for
admission of the prior testimony. The trial judge granted defense coun-
sel’s motion, and the videotaped testimony from the 1999 trial was played
for the jury. The jury later was unable to reach a unanimous verdict, and
the trial judge declared a mistrial.
At defendant’s second trial, the prosecution again sought to preclude
the witness’s testimony. This time, the same trial judge ruled the prior
testimony inadmissible and certified the issue for appellate review. The
Court of Appeals affirmed in a split decision.1 This Court granted oral
argument on the application for leave to appeal.2

MRE 804(b)(1)

Michigan Rule of Evidence (MRE) 804(b)(1) dictates when testimony

given by a witness at a prior proceeding is admissible. The rule allows the
testimony to be admitted “if the party against whom the testimony is now
offered . . . had an opportunity and similar motive to develop the testi-
mony by direct, cross, or redirect examination.”3
The only question here is whether the prosecution had a similar
motive to develop the witness’s testimony at the 1999 trial. At
defendant’s second trial, the court ruled that the witness’s prior
testimony was inadmissible. It reasoned that the prosecution did not
have the “opportunity or a similar motive” to develop her testimony at
the 1999 trial.
This Court addressed the application of MRE 804(b)(1) to prior
testimony given at a preliminary examination in People v Meredith.4 The
Meredith majority noted that the attorneys for some of the defendants
had an opportunity to cross-examine the unavailable witness at the
original examination. Counsel for the remaining defendant had both an

1
People v Sierra, unpublished opinion per curiam of the Court of
Appeals, issued January 29, 2008 (Docket No. 277838).
2
People v Sierra, 482 Mich 883 (2008).
3
MRE 804(b)(1).
4
People v Meredith, 459 Mich 62 (1998).
 ACTIONS ON APPLICATIONS 1109
opportunity and a similar motive to cross-examine the witness at a
subsequent examination, but specifically waived defendant’s right to do
so. Therefore, the Court concluded, each defendant had an opportunity
and a similar motive to develop the witness’s testimony.5
Meredith and later Court of Appeals decisions reinforced the practice
of setting a low threshold for what constitutes a “similar motive” for
purposes of the admissibility of evidence under MRE 804(b)(1).6 This
Court has also held that federal law interpreting a similar federal rule of
evidence may be considered when construing the state version of the
rule.7 Therefore, cases interpreting the corresponding federal rule of
evidence, FRE 804(b)(1), are also instructive.
In United States v Foster,8 the Sixth Circuit Court of Appeals held
that it was an abuse of discretion for the trial court to exclude prior
testimony for lack of a similar motive. The witness in Foster testified
for the prosecution at a grand jury proceeding. When he became
unavailable at the time of trial, defense counsel sought to introduce
his grand jury testimony because it tended to exculpate the defendant.
The witness’s earlier testimony summarized the witness’s involve-
ment in drug trafficking, but denied that the defendant was involved.
The trial court denied defense counsel’s motion, but the Sixth Circuit
reversed, holding that “the fact that the district court did not admit
the testimony constitutes an abuse of discretion . . . because [the
witness’s] exculpatory testimony could have had a significant impact
on the jury’s verdict.”9
I believe that the trial court and the Court of Appeals may have erred
in this case in ruling that the prosecutor lacked a similar motive for
developing the witness’s testimony at the 1999 trial. The Court of
Appeals majority framed the issue very narrowly.10 Under its analysis, a
party against whom testimony is offered would never have a similar
motive for questioning a witness in a proceeding involving a different
defendant. The motive would always be solely to establish the guilt of the
defendant being tried at the time. Such an outcome is contrary to the
clear directive of MRE 804(b)(1), which refers to testimony “given as a
witness at another hearing of the same or a different proceeding” and also
states that the testimony may be developed through “direct, cross, or

5
Id. at 67.
6
See People v Adams, 233 Mich App 652, 659 (1999), which cites
Meredith as support for the conclusion that prior preliminary examina-
tion testimony is admissible. Adams assumes without question that the
defendant had an opportunity and similar motive to develop the witness’s
testimony on cross-examination.
7
People v Katt, 468 Mich 272, 280 (2003).
8
United States v Foster, 128 F3d 949 (CA 6, 1997).
9
Id. at 956.
10
Sierra, supra at 3.
1110 482 MICHIGAN REPORTS
redirect examination.”11
The Court of Appeals dissenting opinion used a more expansive
analysis for evaluating what constitutes a “similar motive.” At the 1999
trial, the prosecutor’s motive for developing the witness’s testimony was
to elicit information about her drug purchases and the drug ring run by
defendant’s brothers. The prosecutor’s intentions at this trial would be
substantially similar to his motive in that case if the witness were
available to provide live testimony: to demonstrate the witness’s thor-
ough knowledge of the workings of the drug ring and familiarity with
defendant’s brothers. The underlying reason that the prosecution elicited
those facts in the 1999 case was to prove that Domingo Sierra was guilty.
It does not have a new or different motive for developing the witness’s
testimony in this case. Moreover, the prosecutor’s underlying goal here,
to prove that Christian Sierra is guilty, is not the applicable standard for
determining whether the prosecutor had a similar motive to develop the
witness’s testimony in 1999.
The prosecution also claims that, had the witness been available at
trial, it would have asked her many additional questions and sought to
challenge her credibility and knowledge. But the fact that the prosecutor
might ask different questions or attempt to impeach the witness is
irrelevant.12 As this Court has noted previously, MRE 804(b)(1) does not
require that a party took advantage of an opportunity to develop
testimony; it requires only that such opportunity existed.13 In 1999, the
prosecutor had the opportunity to ask the witness any relevant ques-
tions; the fact that he chose not to do so does not justify precluding
admissible and probative testimony helpful to the defendant’s case.

CONCLUSION

I believe that defendant’s “similar motive” argument warrants full

briefing and oral argument. For that reason, I would grant leave to appeal
to resolve this jurisprudentially significant issue.

Summary Disposition December 17, 2008:

SAZIMA V SHEPHERD BAR & RESTAURANT, No. 136940. On November 19,
2008, the Court heard oral argument on the application for leave to
appeal the June 17, 2008, order of the Court of Appeals. On order of the
Court, the application is again considered and, pursuant to MCR
7.302(G)(1), in lieu of granting leave to appeal, we reverse the ruling of
the Workers’ Compensation Appellate Commission (WCAC). The WCAC
erred by finding that the plaintiff’s injury occurred in the course of her

11
MRE 804(b)(1) (emphasis added).
12
“In virtually all subsequent proceedings, examiners will be able to
suggest lines of questioning that were not pursued at a prior proceeding.”
United States v DiNapoli, 8 F3d 909, 914 (CA 2, 1993).
13
Meredith, supra at 67.
 ACTIONS ON APPLICATIONS 1111
employment. “[T]here is no recovery for an employee who is injured on a
public street or other property not owned, leased, or maintained by the
employer while traveling to or from a nonemployer parking lot because
this injury is not in the course of employment.” Simkins v Gen Motors
Corp (After Remand), 453 Mich 703, 723 (1996); see also MCL 418.301(3).
The plaintiff’s activity did not confer a special benefit on her employer,
did not serve a dual purpose, nor did it subject her to excessive risk. The
plaintiff was “ ‘master of [her] own movements upon the street and
encountered there a risk incident to any user of the street.’ ” Bowman v
RL Coolsaet Constr Co (On Remand), 275 Mich App 188, 193 (2007),
quoting Dent v Ford Motor Co, 275 Mich 39, 42 (1936). We agree with
Justice WEAVER’s concurring opinion in Simkins, and overrule Fischer v
Lincoln Tool & Die Co, 37 Mich App 198 (1971), which is inconsistent
with Simkins. Court of Appeals No. 281855.
YOUNG, J. (concurring). While I concur with the order reversing the
Workers’ Compensation Appellate Commission, I write to note that
Justice WEAVER’s dissenting statement is so breathtakingly and pro-
foundly incoherent that it is hard to know how to respond to it.
Until today, I was not aware that a dissenting justice could purport
(much less had the authority) to nullify a holding of a majority of this
Court by simple declarative fiat. This order, signed by a majority of
justices, overturns a Court of Appeals opinion which is inconsistent with
Justice WEAVER’s published position in Simkins v Gen Motors Corp (After
Remand), 453 Mich 703 (1996). Thus, it is hard to understand why
Justice WEAVER believes that this order is neither “precedential” nor
“persuasive.”
Given that it is entirely likely that I will soon be in the philosophical
minority on this Court, I will take great pleasure citing and relying on
Justice WEAVER’s odd legal doctrine under which the minority view
controls.
CAVANAGH, J. (dissenting). I dissent from this Court’s order reversing
the Workers’ Compensation Appellate Commission (WCAC). I believe
that the WCAC, and the workers’ compensation magistrate, correctly
concluded that plaintiff suffered disabling injuries in the course of her
employment. I would deny leave to appeal.
Plaintiff, Stacy Sazima, was employed by defendant, Shepherd Bar &
Restaurant. Defendant did not provide employee parking. In fact, defen-
dant directed employees not to park in the public spaces located nearest
to its place of business. It expressly informed its employees by written
memo that the “[parking] spots out front are for our customers only.”
“[O]ut front” refers to the restaurant where plaintiff was employed and
two adjacent buildings owned by defendant. Following defendant’s direc-
tive, plaintiff parked in a space down the street from defendant’s
location. She fell and was injured while walking directly from the parking
space to work. The workers’ compensation magistrate found that plain-
tiff suffered disabling injuries in the course of her employment, and the
WCAC agreed.
The Worker’s Disability Compensation Act (WDCA) provides compen-
sation for employees who are injured in the course of their employment.
1112 482 MICHIGAN REPORTS
MCL 418.301(1). It contains a provision that addresses whether an
employee who is injured while going to or coming from work is injured in
the course of employment:

An employee going to or from his or her work, while on the

premises where the employee’s work is to be performed, and
within a reasonable time before and after his or her working
hours, is presumed to be in the course of his or her employ-
ment. . . . [MCL 418.301(3).]

In Simkins v Gen Motors Corp (After Remand), 453 Mich 703, 710-711
(1996), this Court stated that it “construes the [WDCA] liberally to grant
rather than deny benefits.” Simkins also specified the appropriate
application of § 301(3):

Despite the apparent clarity of the statute requiring that the

injury occur on the premises where the employee’s work is to be
performed, this Court has traditionally construed this phrase in a
way that would allow recovery under the appropriate circum-
stances even where the injury occurred on property that was not
owned, leased, or maintained by the employer. [Simkins, 453 Mich
at 713 (quotation marks omitted; emphasis added).]

Ignoring these statements, the majority construes § 301(3) to deny

benefits and disallow recovery. To suit this harsh and hasty disposition,
the majority also avoids the broader rule of Simkins and selectively
quotes a portion of the holding of that case that appears to support its
result:

[W]e hold that there is no recovery for an employee who is

injured on a public street or other property not owned, leased, or
maintained by the employer while traveling to or from a nonem-
ployer parking lot because this injury is not in the course of
employment. [Simkins, 453 Mich at 723.]

The selected excerpt, standing alone, could appear to mean that there is
never a recovery for an employee who is injured on property not owned by
the employer while going to or coming from work (unless that property is
directly between an employer-owned parking lot and the employee’s
worksite). Simkins does not stand for this proposition.
The selected excerpt appears in Simkins at the end of a paragraph
that announces the complete holding in that case. That paragraph begins
by stating that its holding applies “unless the injury falls into one of the
recognized exceptions” to the rule of MCL 418.301(3). Simkins, 453 Mich
at 723. If an exception applies, “the place of the injury, although not on
property owned, leased, or maintained by the employer, is deemed to be
on the employer’s ‘premises’ for the purposes of the statute.” Id. Of
course, if the injury is deemed to have occurred on the employer’s
 ACTIONS ON APPLICATIONS 1113
premises, then it occurs within the course of employment and is com-
pensable under the WDCA. If there is no exception, § 301(3) applies to
preclude recovery, as the portion selected by the majority indicates.
Three years after Simkins was decided, a majority of this Court listed
some of the recognized exceptions to MCL 418.301(3) in Camburn v
Northwest School Dist (After Remand), 459 Mich 471 (1999). Essentially
summarizing the holding of Simkins, Camburn states:

The general rule is that injuries that occur while traveling to or

coming from work are not compensable. However, a number of
exceptions have been recognized where (1) the employee is on a
special mission for the employer, (2) the employer derives a special
benefit from the employee’s activity at the time of the injury, (3)
the employer paid for or furnished the employee transportation as
part of the contract of employment, (4) the travel comprised a dual
purpose combining the employment-required business needs with
the personal activity of the employee, (5) the employment sub-
jected the employee to excessive exposure to the common
risk . . . . [Camburn, 459 Mich at 478 (quotation marks and
citations omitted).][1]

The majority acknowledges these exceptions, if only by unexplained

rebuttal. I believe that at least two of the exceptions apply.
I believe that defendant derived a special benefit from plaintiff’s
activity when, on her way to work, she did not park in the public spaces
in front of defendant’s place of business. Plaintiff parked down the street
because defendant had ordered that “spots out front are for our custom-
ers only.” The benefit is obvious: convenient customer access is good for
business. Defendant’s owner admitted as much at plaintiff’s workers’
compensation hearing. He testified that he instructed employees, includ-
ing plaintiff, not to park in the public spaces in front of his businesses
because he may “lose customers if the spots in front of the bar fill up and,
therefore, his employees are not to park there.” Sazima v Shepherd Bar
& Restaurant, 2007 Mich ACO 237, pp 2-3. Defendant, by its own
admission, derived a benefit to its business from plaintiff’s activities at
the time of her injury. Thus, the circumstances of her injury fall within
one of the recognized exceptions to MCL 418.301(3).
I also believe that plaintiff’s travel from a more distant parking space
“comprised a dual purpose combining the employment-required business
needs with the personal activity of the employee.” Camburn, 459 Mich at
478 (quotation marks and citations omitted). When she parked in a space

1
The Camburn majority opinion addressed the scope of employment
and, as is evident from the quotation, its exceptions are applicable to the
“coming and going” rule. I concurred with the result, but wrote sepa-
rately to clarify the application of the “special mission” exception to the
general rule that coming from and going to work is not “in the course” of
work. Camburn, 459 Mich at 479-485 (CAVANAGH, J., concurring).
1114 482 MICHIGAN REPORTS
other than the public spaces immediately in front of defendant’s build-
ings, plaintiff’s actions were serving the dual purposes of getting herself
to work and following her employer’s instruction to leave the most
convenient parking spaces open for potential customers. Although get-
ting to work is a personal activity, acting according to an employer’s
express directive given for the purpose of generating business meets an
employment-required business need.
Because the circumstances of plaintiff’s injury clearly come within at
least two of the recognized exceptions to MCL 418.301(3), the portion of
Simkins holding quoted by the majority’s order does not apply; plaintiff
was injured in the course of her employment. I believe that the WCAC
properly concluded that plaintiff’s injuries were compensable under the
WDCA. I would deny leave to appeal.
Finally, I would certainly not overrule Fischer v Lincoln Tool & Die
Co, 37 Mich App 198 (1971), without reasoning or analysis.
KELLY, J. I join the statement of Justice CAVANAGH.
WEAVER, J. (dissenting). I dissent from the order reversing the ruling
of the Workers’ Compensation Appellate Commission. I would not
peremptorily reverse the Court of Appeals order denying leave to appeal,
which order has no precedential value.
This case should not be cited as precedent or as being persuasive.

Leave to Appeal Denied December 17, 2008:

PEOPLE V LINCOLN WATKINS, No. 135787. On order of the Court, leave to

appeal having been granted and the briefs and oral arguments of the
parties having been considered by the Court, we vacate our order of April
23, 2008. The application for leave to appeal the December 13, 2007,
judgment of the Court of Appeals is denied, because we are no longer
persuaded that the question presented should be reviewed by this Court.
Reported below: 277 Mich App 358.
CAVANAGH, J. (dissenting). I disagree with the majority’s decision to
deny leave to appeal in this case. I am baffled by the fact that the majority
is “no longer persuaded that the question presented should be reviewed
by this Court.” This case presents substantial issues regarding the
separation of powers and the fairness of criminal trials. I can think of no
issues that are more jurisprudentially significant. I would grant leave to
appeal and reverse the Court of Appeals judgment.
This case addresses a conflict between a rule of evidence, MRE 404(b),
and a statute, MCL 768.27a. MRE 404(b)(1) states in part: “Evidence of
other crimes, wrongs, or acts is not admissible to prove the character of
a person in order to show action in conformity therewith.” In other
words, this rule does not allow the admission of evidence that a defendant
committed a previous bad act for the sole purpose of showing that he is
a bad character who is likely to have done something similar again.1 MCL
768.27a(1), on the other hand, states that “evidence that the defendant

1
The rule does, however, allow character evidence to be used for a
variety of other purposes. See MRE 404(b)(1).
 ACTIONS ON APPLICATIONS 1115
committed another listed offense against a minor is admissible and may
be considered for its bearing on any matter to which it is relevant.” In
other words, in specified child-molestation cases, the statute allows the
prosecution to offer evidence that a defendant previously committed an
act similar to the one charged for the sole purpose of showing that the
defendant likely did something similar again. The conflict between the
provisions is clear and irreconcilable: the statute allows evidence in
child-molestation cases that the rule of evidence expressly prohibits in all
cases. Thus, the Court is asked to decide which one prevails.
The Court of Appeals concluded that the statute prevails over the rule
of evidence. People v Watkins, 277 Mich App 358, 365 (2007). It reasoned
that, while the provisions conflict, the statute controls because it ad-
dresses an issue of substantive law rather than a matter of practice or
procedure. Id. I believe that the Court of Appeals erred because MCL
768.27a represents an unconstitutional legislative intrusion into the
affairs of the judiciary.
The Michigan Constitution divides the powers of government into
legislative, executive, and judicial branches. Const 1963, art 3, § 2. To
maintain the separation of these powers, the constitution admonishes
that “[n]o person exercising powers of one branch shall exercise powers
properly belonging to another branch except as expressly provided in this
constitution.” Id. Judicial power is vested exclusively in the judiciary.
Const 1963, art 6, § 1. In exercise of that power, this Court “shall by
general rules establish, modify, amend and simplify the practice and
procedure in all courts of this state.” Const 1963, art 6, § 5.
The rule at issue, MRE 404(b), was established pursuant to this
Court’s power and duty to make rules of practice and procedure. It is a
procedural rule created to ensure that criminal trials are fair by prohib-
iting the admission of certain unduly prejudicial evidence. This Court’s
power over procedural rules “may not be diminished, exercised by, nor
interfered with by the other branches of government.” In re 1976 PA 267,
400 Mich 660, 663 (1977). Further, “the legislature cannot dictate or
control the procedures of our circuit courts.” Darr v Buckley, 355 Mich
392, 396 (1959).
Importantly, MRE 404(b) provides procedural protections ensuring
the fairness of criminal trials. There is no more core judicial function. In
People v Crawford, 458 Mich 376, 383-384 (1998), this Court stated that
“[t]he character evidence prohibition [in MRE 404(b)] is deeply rooted in
our jurisprudence. Far from being a mere technicality, the rule reflects
and gives meaning to the central precept of our system of criminal justice,
the presumption of innocence.” (Quotation marks and citations omitted.)
The Crawford Court further reasoned that “[e]vidence of extrinsic bad
acts thus carries the risk of prejudice, for it is antithetical to the precept
that a defendant starts his life afresh when he stands before a jury.” Id.
at 384 (quotation marks and citations omitted). The Crawford Court
concluded that “[t]he fundamental principle of exclusion, codified by
MRE 404(b), is woven into the fabric of Michigan jurisprudence.” Id. If
the Legislature can control this fundamental rule of procedure, the
powers of the judicial branch are diminished to the vanishing point.
1116 482 MICHIGAN REPORTS
“It cannot be disputed that this Court has inherent as well as
constitutional rulemaking power in the discharge of its general superin-
tending control over all inferior courts.” Tomlinson v Tomlinson, 338
Mich 274, 276 (1953). “This Court does possess broad powers in the
forum of practice and procedure as provided in the 1963 Constitution.”
People v Booth, 414 Mich 343, 357 (1982). “It is also well settled that
under our form of government the Constitution confers on the judicial
department all the authority necessary to exercise its powers as a
coordinate branch of government.” In re 1976 PA 267, 400 Mich at
662-663. MCL 768.27a usurps the judiciary’s power to ensure that
criminal trials are fair. It is “an impermissible intrusion into the most
basic day-to-day exercise of the constitutionally derived judicial powers.”
In re 1976 PA 267, 400 Mich at 663. As such, it must give way to MRE
404(b).
The Court of Appeals came to the contrary conclusion, relying on
McDougall v Schanz, 461 Mich 15, 30 (1999), where a majority of this
Court concluded that “a statutory rule of evidence violates Const 1963,
art 6, § 5 only when no clear legislative policy reflecting considerations
other than judicial dispatch of litigation can be identified.”2 (Quotation
marks and citations omitted.) I dissented in McDougall. I continue to
believe that the majority reached its result in that case by improperly
expanding the definition of substantive law to include any law with an
identifiable policy purpose while reducing the definition of judicial
“practice and procedure” to the mere dispatch of judicial business.
McDougall, 461 Mich at 52-65. I also continue to believe that the
majority’s redefinition of constitutional powers effectively and impermis-
sibly confines the power of the judiciary to the scheduling of docket
sheets. Id. at 59 n 26. I characterized the majority opinion as an
invitation to a legislative stampede over the fence created by our
constitution’s framers. Id. at 38. Today, by failing to prevent legislative
interference with the fundamental rule of evidence at issue in this case,
the majority has made the fence superfluous and fully opened the gate to
legislative control of the separate and co-equal judiciary.
I respectfully dissent from this Court’s order. And, given the majori-
ty’s failure to address the substantial issues presented, I restate that “I
can only hope that, at some point, . . . we will again revisit this issue, and
rebuild the historic divide between the courts and the Legislature, which
the majority has carelessly toppled today.” McDougall, 461 Mich at 72
(CAVANAGH, J., dissenting).
KELLY, J. I join the statement of Justice CAVANAGH.

Leave to Appeal Granted December 18, 2008:

In re LEE (DEPARTMENT OF HUMAN SERVICES V LEE), No. 137653. The
parties shall include among the issues to be briefed (1) whether the term

2
In McDougall, this Court considered a conflict between MRE 702, the
court rule providing the standards of admissibility for expert testimony,
and MCL 600.2169, which provides for stricter standards of admissibility
for expert testimony in medical malpractice cases. Id. at 25-26.
 ACTIONS ON APPLICATIONS 1117
“active efforts” in 25 USC 1912(d) requires a showing that there have
been recent rehabilitative efforts designed to prevent the breakup of that
particular Indian family; and (2) whether the “beyond a reasonable
doubt” standard of 25 USC 1912(f) requires contemporaneous evidence
that the continued custody of the Indian child by the parent or Indian
custodian is likely to result in serious emotional or physical damage to
the child before parental rights may be terminated.
The Clerk of the Court is directed to place this case on the March 2009
session calendar for argument and submission. Appellant’s brief and
appendix must be filed no later than January 27, 2009, and appellees’
brief and appendices, if appellees choose to submit appendices, must be
filed no later than February 20, 2009.
The Attorney General and the American Indian Law, Children’s Law,
and Family Law sections of the State Bar of Michigan are invited to file
briefs amicus curiae by February 24, 2009. Other persons or groups
interested in the determination of the issues presented in this case may
move the Court for permission to file briefs amicus curiae by February 24,
2009. Court of Appeals No. 283038.

Summary Dispositions December 18, 2008:

PEOPLE V KEYES, No. 136839. Pursuant to MCR 7.302(G)(1), in lieu of

granting leave to appeal, we remand this case to the Court of Appeals.
That court shall treat the defendant’s delayed application for leave to
appeal as having been filed within the deadline set forth in MCR 7.205(F)
and shall decide whether to grant, deny, or order other relief, in
accordance with MCR 7.205(D)(2). After the Attorney General confessed
error, a federal court granted defendant a conditional writ of habeas
corpus, ordering the state of Michigan to both appoint counsel to
represent him on appeal and “accept said appeal . . . for filing,” or release
him from custody. Keyes v Renico, 05-CV-71160-DT (2005). That order
was not appealed. Habeas corpus decisions are binding on the parties,
and the federal court retains jurisdiction to ensure compliance. People v
Frazier, 478 Mich 231, 241-242 (2007), cert den sub nom Michigan v
Frazier, ___ US ___; 128 S Ct 712; 169 L Ed 2d 571 (2007). In this case,
counsel was appointed, and the federal district court issued an order
granting further time for counsel to file an application or postjudgment
motion. Counsel’s pleadings were filed within the time set forth in the
district court’s order. Defendant’s application for leave to appeal must,
therefore, be accepted for filing. In all other respects, leave to appeal is
denied, because we are not persuaded that the remaining questions
presented should now be reviewed by this Court. Court of Appeals No.
275280.
PEOPLE V BEMER, No. 136852. Pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we remand this case to the Court of Appeals for
consideration as on leave granted. The Court of Appeals shall address
whether a sentencing judge has discretion under MCL 777.22(1) and
MCL 777.42(1) to purposely score offense variable 12 at zero points in
1118 482 MICHIGAN REPORTS
order to achieve a higher score under offense variable 13. We do not
retain jurisdiction. Court of Appeals No. 284739.
KELLY, J. I would grant leave to appeal.
PEOPLE V WAUKEEN SPRAGGINS, No. 137205. Pursuant to MCR
7.302(G)(1), in lieu of granting leave to appeal, we remand this case to the
Macomb Circuit Court for correction of the presentence investigation
report as agreed to by the trial court, and for correction of the judgment
of sentence to reflect two days’ sentence credit for all of defendant’s
sentences. The circuit court shall forward a copy of the amended report
to the Department of Corrections, MCL 771.14(6) and MCR 6.425(E)(2).
In all other respects, leave to appeal is denied, because we are not
persuaded that the remaining questions presented should be reviewed by
this Court. Court of Appeals No. 282912.
KELLY, J. I would also remand this case for rescoring of offense
variables 9 and 13.
PEOPLE V JAMES PERKINS AND PEOPLE V LESAGE, Nos. 137477 and
137478. Pursuant to MCR 7.302(G)(1), in lieu of granting leave to
appeal, we affirm the Court of Appeals decision holding that Heidi’s Law,
MCL 257.625, does not violate the ex post facto provisions of the federal
and state constitutions. Court of Appeals Nos. 281957 and 281959.

Leave to Appeal Denied December 18, 2008:

PEOPLE V KEITH FRANKLIN, No. 136166; Court of Appeals No. 283618.

PEOPLE V FILIP, No. 136275; Court of Appeals No. 277204.
PEOPLE V KINGSBURY, No. 136328; Court of Appeals No. 283342.
PEOPLE V BATES, No. 136562; Court of Appeals No. 284133.
PEOPLE V SESSIONS, No. 136568; Court of Appeals No. 283765.
PEOPLE V MICHAEL JAMES, No. 136717. The defendant’s motion for relief
from judgment is prohibited by MCR 6.502(G). Court of Appeals No.
282777.
KELLY, J. I would remand this case to the Court of Appeals for
consideration as on leave granted and would order the appointment of
counsel in accordance with Administrative Order No. 2003-3.
PEOPLE V FLANORY, No. 136759; Court of Appeals No. 283235.
KELLY, J. I would grant leave to appeal.
PEOPLE V ROBERT LONG, No. 136856; Court of Appeals No. 285015.
PEOPLE V WHITSETT, Nos. 136862, 136863, and 136864; Court of
Appeals Nos. 227294, 227295, and 227296.
PEOPLE V ROWLAND, No. 136911; Court of Appeals No. 284321.
 ACTIONS ON APPLICATIONS 1119
PEOPLE V PINSON, No. 136912; Court of Appeals No. 283793.
KELLY, J. I would grant leave to appeal.
PEOPLE V DANIEL SANDERS, No. 136951; Court of Appeals No. 284764.
KELLY, J. I would grant leave to appeal.
PEOPLE V TUCKER, No. 137036; Court of Appeals No. 277650.
CAVANAGH and KELLY, JJ. We would grant leave to appeal.
PEOPLE V BISHOP, No. 137168; Court of Appeals No. 286366.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Conway, 474 Mich 1140 (2006).
PEOPLE V UPCHURCH, No. 137179; Court of Appeals No. 285731.
PEOPLE V FULLER, No. 137185; Court of Appeals No. 285838.
KELLY, J. I would grant leave to appeal for the reasons set forth in my
dissenting statement in People v Conway, 474 Mich 1140 (2006).
PEOPLE V BRANDON COOK, No. 137214; Court of Appeals No. 285808.
KELLY, J. I would grant leave to appeal.
PEOPLE V OETMAN, No. 137257; Court of Appeals No. 283574.
KELLY, J. I would grant leave to appeal.

Summary Dispositions December 19, 2008:

ELLIS V FARM BUREAU INSURANCE COMPANY, No. 136069. On December 3,

2008, the Court heard oral argument on the application for leave to
appeal the February 12, 2008, judgment of the Court of Appeals. On order
of the Court, the application is again considered. MCR 7.302(G)(1). In
lieu of granting leave to appeal, we reverse the judgment of the Court of
Appeals and we remand this case to the Wayne Circuit Court for entry of
judgment in favor of the defendant. Contracts are enforced according to
their unambiguous terms. Rory v Continental Ins Co, 473 Mich 457, 468
(2005). The defendant is not liable, under the terms of the insurance
policy, because, under the facts of this case, the insured premises were
vacant or unoccupied for more than 60 consecutive days before the
damage occurred. Smith v Lumbermen’s Mut Ins Co, 101 Mich App 78
(1980), did not involve a vacancy of 60 days or more or policy language,
such as that here, that limits coverage when the insured premises are
vacant or unoccupied for more than 60 consecutive days. Court of
Appeals No. 275240.
YOUNG, J. (concurring). I concur in the order reversing the judgment of
the Court of Appeals and write solely to respond to the disturbing
dissenting statement of Justice KELLY. This is a simple case that illus-
trates why judicial philosophy matters.
The insurance contract at issue disclaimed coverage for losses related
to the insured home if it was “vacant and unoccupied beyond a period of
60 consecutive days.” I wager that not one in a thousand native speakers
of English would have difficulty in understanding this simple and
straightforward contractual term. Notwithstanding, the premise of Jus-
1120 482 MICHIGAN REPORTS
tice KELLY’s dissent is that these contractual terms are ambiguous
because they are not defined in the insurance contract.* Only in a
“judicial world” would two commonplace terms like “vacant” and “un-
occupied” be deemed ambiguous, and only those who share Justice
KELLY’s philosophy of contract construction would make contracts con-
taining those terms essentially unenforceable.
Unfortunately, I believe that Justice KELLY’s view of contract con-
struction in this case foreshadows the future. I predict that we will see
again the ascendency of a Michigan jurisprudence in which no contract
will be enforced according to its plain meaning and the meaning given to
such commonplace terms will be derived entirely from the imaginations
of judges who share Justice KELLY’s judicial philosophy.
MARKMAN, J. (concurring). I concur in the decision to reverse the
judgment of the Court of Appeals. I respond separately only to address
Justice KELLY’s dissent. That dissent contends that our reliance on Rory
v Continental Ins Co, 473 Mich 457 (2005), is “sadly misplaced” because
defendant admits that the insurance policy at issue here does not define
the word “vacant” or “unoccupied,” and, thus, “did not rely on Rory in its
most recent brief.” To begin with, defendant did rely on Rory in its brief
in support of its application for leave to appeal,1 and defendant very likely
did not rely on Rory in its “most recent brief,” i.e., its supplemental brief,
only because this Court specifically directed the parties to “not submit
mere restatements of their application papers” in their supplemental
briefs. 482 Mich 1018 (2008) (emphasis added). Further, although defen-
dant acknowledges that the dispositive terms of the policy are not defined
in the policy, contrary to the dissent’s suggestion, this by no means
constitutes a concession that these terms are “ambiguous.” “As this
Court has repeatedly stated, the fact that a contract does not define a
relevant term does not render the contract ambiguous.” Terrien v Zwit,
467 Mich 56, 76 (2002). “Rather, if a term is not defined in a contract, we
will interpret such term in accordance with its ‘commonly used mean-
ing.’ ” Id. at 76-77, quoting Frankenmuth Mut Ins Co v Masters, 460 Mich
105, 114 (1999). Finally, contrary to the dissent’s intimation, a “term is
not rendered ambiguous merely because resort to a dictionary reveals
more than one definition.” Lash v Traverse City, 479 Mich 180, 189 n 12
(2007).2 “If that were the

*
If this were the prevailing rule of “ambiguity,” then the so-called
“plain language” movement of contract drafting is a cruel farce and
insurance contracts would have to be accompanied by a “glossary” of
everyday terms the size of the Unabridged Oxford English Dictionary.
1
Const 1963, art 1, § 10.
2
Even plaintiff’s counsel admitted that the dispositive terms here are
unambiguous, when he stated, “I guess I would have to concede that in
the abstract vacant and unoccupied is not ambiguous.” Oral argument
transcript at 10. Contrary to the dissent’s intimation, I do acknowledge
that plaintiff’s counsel proceeded to argue that the contract becomes
 ACTIONS ON APPLICATIONS 1121
test for determining whether a term is ambiguous, then virtually all
contracts would be rife with ambiguity and, therefore, subject to what the
dissent in ‘words mean whatever I say they mean’ fashion describes as
‘judicial interpretation.’ ” Terrien, supra at 76. For these reasons, I fully
share Justice YOUNG’s concerns about Justice KELLY’s understanding of
contract interpretation.
CAVANAGH, J. (dissenting). I respectfully dissent from the majority’s
order reversing the Court of Appeals judgment and concur with Justice
KELLY’s dissent.
Further, I note that if plaintiff had pleaded the issue of estoppel in her
complaint, I would support granting plaintiff relief on that basis. At the
time the insurance policy was issued, defendant’s agent knew that no one
was living in the house and that plaintiff intended to conduct extensive
renovations before leasing it to a tenant. This Court has long held that
“an insurance company is estopped from asserting a forfeiture for a
condition of the premises existing at the time of the fire, which existed to
the knowledge of the company at the making of the contract . . . .”
Gordon v St Paul Fire & Marine Ins Co, 197 Mich 226, 234 (1917), relying
on Aurora Fire & Marine Ins Co v Kranich, 36 Mich 289 (1877). See also
Johnson v American Fidelity Fire Ins Co, 351 Mich 515, 521-522 (1958).
Gordon and Kranich are factually and legally similar to this case, and
would govern here if plaintiff had pleaded estoppel.
WEAVER, J. (dissenting). I dissent and would deny leave to appeal
because I am not persuaded that the Court of Appeals judgment in this
matter should be peremptorily reversed.
KELLY, J. (dissenting). I dissent from the Court’s order peremptorily
reversing the judgment of the Court of Appeals. The Court’s reliance on
Rory v Continental Ins Co1 for the proposition that contracts are enforced
according to their terms if the terms are unambiguous is sadly misplaced.
In this case, the insurance policy admittedly did not define the terms
“vacant” or “unoccupied.” Both caselaw and the fact that numerous
common definitions of the terms exist suggest that the terms are
ambiguous.2 Accordingly, they are subject to judicial interpretation, and

ambiguous only when one considers that defendant’s agent knew that the
property was vacant, and, thus, it was reasonable for plaintiff to believe
that the policy covered vacant properties. However, even if this was true,
it is well established that “ ‘a court should not create ambiguity in an
insurance policy where the terms of the contract are clear and precise,’ ”
Citizens Ins Co v Pro-Seal Service Group, Inc, 477 Mich 75, 82 (2007)
(citation omitted), and “one’s alleged ‘reasonable expectations’ cannot
supersede the clear language of a contract.” Wilkie v Auto Owners Ins Co,
469 Mich 41, 60 (2003).
1
Rory v Continental Ins Co, 473 Mich 457, 468 (2005).
2
See, e.g., Smith v Lumbermen’s Mut Ins Co, 101 Mich App 78 (1980);
Krajenke v Preferred Mut Ins Co, 68 Mich App 211 (1976); Shackelton v
Sunfire Office, 55 Mich 288 (1884).
1122 482 MICHIGAN REPORTS
Rory is inapplicable.3 It is noteworthy that defendant did not rely on Rory
in its most recent brief, likely because it admitted that the policy did not
define the dispositive terms.
I believe that the Court of Appeals properly held that plaintiff’s
property was not vacant or unoccupied within the meaning of the terms

Language is not rendered ambiguous merely because it is undefined in

the contract in which it appears. But, ambiguity is more easily avoided
if a contractual definition is provided. And the lack of a definition can
contribute to the likelihood of ambiguity. Also, language is not
ambiguous merely because a dictionary gives it more than one
meaning. But where a dictionary shows that multiple commonly used
meanings exist for the language, it signals that the language, if used
without definition in a contract, risks being ambiguous.
Justice YOUNG’s assertion that “only in a ‘judicial world’ would two
commonplace terms like ‘vacant’ and ‘unoccupied’ be deemed ambigu-
ous” is puzzling. In Liberty Hill Housing Corp v City of Livonia, 480 Mich
44 (2008), Justices YOUNG and MARKMAN joined the majority opinion that
explicitly examined the meaning of the term “occupy” and recognized
that, in Webster’s College Dictionary alone, there are six definitions for
the term. Notwithstanding what I believe to be the majority’s erroneous
determination that “occupy” was unambiguous in that case, Liberty Hill
demonstrates that the term is subject to differing interpretations. Liberty
Hill represents but the tip of an iceberg of cases interpreting the very
terms Justices YOUNG and MARKMAN believe to be unambiguous to “native
speakers of English.” For a fervent discussion of over 100 pages of the
myriad of cases that have interpreted “vacant” and “unoccupied” as they
relate to insurance policies, I refer Justices YOUNG and MARKMAN to 47
ALR3d 398; 36 ALR3d 505. Furthermore, it appears that Justices YOUNG
and MARKMAN would treat the terms “vacant” and “unoccupied” as one
and the same. However, they are not synonymous, which may be why the
policy used two terms instead of one. Each has meanings independent of
the other.
Moreover, Justice MARKMAN distorts plaintiff’s counsel’s “admission”
of a lack of ambiguity. The oral argument transcript shows that plaintiff’s
counsel admitted that the terms are not ambiguous “in the abstract” in
response to Justice YOUNG’s invitation to him to “[p]retend this is not an
insurance contract; pretend this is some other contract.” Oral argument
transcript at 10. In fact, immediately following this so-called “admis-
sion,” plaintiff’s counsel stated, “It’s when you put [the terms] into [an
insurance contract] context that the ambiguity arises.” Id.
3
Notwithstanding this analysis, I continue to believe that Rory was
wrongly decided for the reasons stated in my dissenting opinion in that
case.
 ACTIONS ON APPLICATIONS 1123
of the parties’ insurance policy. I would leave its decision intact and deny
defendant’s application for leave to appeal.
DAVIS V FOREST RIVER, INC, No. 136114. On order of the Court, leave to
appeal having been granted, and the briefs and oral arguments of the
parties having been considered by the Court, we hereby reverse the
judgment of the Court of Appeals. For the reasons stated in the Court
of Appeals dissenting opinion, the remedy of rescission under Michi-
gan law is unavailable in this case. Further, this case is governed by
the Uniform Commercial Code (UCC) as it involves a sale of goods.
MCL 440.2102. We remand this case to the Court of Appeals for
reconsideration of the issues involving the Magnuson-Moss Warranty
Act, 15 USC 2301 et seq., that the court found it unnecessary to reach
in light of its decision and to reconsider the applicability of the
economic loss doctrine and the availability of revocation of acceptance
under MCL 440.2608 in light of our holding that the UCC applies in
this case. Court of Appeals No. 270478.
CAVANAGH, J. (dissenting). I dissent from the majority’s hasty dispatch
of this case through an order. I find this disposition wholly inadequate
given the complexity of the jurisprudentially significant issues on which
this Court granted leave to appeal. The order is so unclear that I am
unable to detect whether I disagree with its holdings, let alone its
reasoning.
First, the order reverses the Court of Appeals and states that the
remedy of rescission is unavailable in this case for the reasons stated in
the Court of Appeals dissent. This is the only statement in the order
bearing any resemblance to judicial reasoning, and even this is more
confusing than illuminating. It is unclear if the majority is reversing the
entire Court of Appeals holding or just its remedy.1 It is also unclear
which part of the Court of Appeals dissent the majority intends to
incorporate.2 The order cannot be read as adopting the Court of Appeals
dissent in its entirety because the dissent argued that the Uniform

1
The Court of Appeals held that plaintiff was entitled to rescission for
defendant’s breach of implied warranty because (1) Michigan law long
ago established that purchasers may seek the remedy of rescission
against remote, out-of-privity manufacturers for breach of implied war-
ranty; (2) the Uniform Commercial Code (UCC) and the economic loss
doctrine are inapplicable to this case because the parties were not in
privity; and (3) the UCC only abolished rescission as a remedy where the
parties have a contract. Davis v Forest River, Inc, 278 Mich App 76, 91
(2008).
2
The Court of Appeals dissent reasoned that: (1) a plaintiff cannot seek
rescission as a remedy for an implied warranty because there is no
contract to rescind; (2) the UCC remedy of revocation of acceptance
replaced rescission for out-of-privity plaintiffs; and (3) the UCC only
applies if the parties are in privity. Davis, 278 Mich App at 92-94
(BANDSTRA, J., dissenting).
1124 482 MICHIGAN REPORTS
Commercial Code (UCC) does not apply to this transaction and the order
expressly rejects that proposition in its next sentence. This provision
provides the Court of Appeals and the parties with insufficient guidance
on what law, if any, the order establishes in these areas.3
Second, the order states that “this case is governed by the Uniform
Commercial Code (UCC) as it involves a sale of goods.” It then provides
a bare citation of MCL 440.2102. Section 2102 states that “[u]nless the
context otherwise requires, this article applies to transactions in goods.”
This statement and the citation of this statute add no value to this case
as neither the lower courts nor the parties have contested that this action
involves a sale of goods. The statement also fails to provide the parties
any useful guidance on the issues in this case pertaining to the UCC,
including whether the relevant UCC provisions require privity and to
what extent plaintiff’s third-party beneficiary status enables him to seek
relief under the UCC.
Third, the order directs the Court of Appeals to consider if revocation
of acceptance is available “in light of our holding that the UCC applies in
this case.” I am unclear what purpose this instruction serves. Both the
majority and the dissent in the Court of Appeals already stated that the
UCC remedy of revocation of acceptance is not available absent privity.
As stated earlier, the order’s inadequate statement that “the UCC
applies” provides no useful guidance on how to apply the provisions of the
UCC at issue in this case. Therefore, the order essentially directs the
Court of Appeals to answer a question that it has already answered,
without providing any new holding or legal reasoning that would give the
Court of Appeals reason to reconsider its original holding. Apparently the
efforts that the parties and lower courts already expended on this issue
were a waste of their time, as well as of this state’s limited judicial
resources.
I find it unacceptable for this Court to direct the Court of Appeals and
the parties to readdress these issues with only the confusing and
inadequate “guidance” this order provides. This Court should provide
clarity, not confusion, to the courts below. The questions this order fails
to address are not theoretical; to the contrary, the questions are directly
necessary for resolution of this case.4 Accordingly, I dissent.

3
The order fails to provide guidance or resolution on several questions
that may have an effect on the outcome of this case and that were already
addressed by the Court of Appeals. For example: Does Michigan statutory
or common law provide a cause of action for a breach of warranty when
the parties are not in privity? Is rescission available as a remedy for
defendant’s breach of its express warranty? Did the UCC’s remedy of
revocation of acceptance supplant the equitable remedy of rescission? If
so, did it do so only when parties are in privity, whenever the UCC
applies, or in general?
4
Indeed, many are the questions this Court asked the parties to
address in its order granting leave to appeal. Davis v Forest River, Inc,
481 Mich 918 (2008).
 ACTIONS ON APPLICATIONS 1125
WEAVER and KELLY, JJ. We join the statement of Justice CAVANAGH.
PEOPLE V JUSTIN HOWARD, No. 136238. Pursuant to MCR 7.302(G)(1), in
lieu of granting leave to appeal, we vacate the sentence of the Jackson
Circuit Court and remand this case to that court for resentencing. The
trial judge failed to offer any valid explanation justifying why he chose to
sentence the defendant to a term of life imprisonment. People v Smith,
482 Mich 292 (2008). On remand, the trial court shall articulate on the
record why this level of departure is warranted or resentence the
defendant either within the appropriate sentencing guidelines range or
articulate on the record why a different level of departure is warranted.
We do not retain jurisdiction. Court of Appeals No. 282577.
KELLY, J. (concurring). I concur fully in the remand order. I write
separately only to respond to concerns raised by Justice CORRIGAN in her
dissenting statement.
First, I emphasize that resentencing is required here because, as the
remand order states, the trial judge did not explain why he sentenced
defendant to a term of life imprisonment. The sentence was handed down
before this Court released People v Smith;1 therefore, the trial judge may
not have thought it necessary to express why substantial and compelling
reasons justified the departure he chose.2
I disagree with Justice CORRIGAN that the trial court cannot comply
with Smith. First, Justice CORRIGAN ties many of her concerns to Smith’s
suggestion that a trial court could compare its departure sentence
“against the sentencing grid and anchor[] it in the sentencing guide-
lines.” Justice CORRIGAN seizes on this language to argue that a sentenc-
ing court could “mathematically justify almost any conceivable sentence”
when the only pertinent question is whether a substantial and compel-
ling reason justifies the sentence imposed.3
Smith’s mention of the sentencing grid provides guidance for sentenc-
ing courts. It shows how reference to the grid may be helpful when
explaining why a substantial and compelling reason justifies a particular
departure sentence. I note also that Smith merely stated that “[o]ne
potential means of offering such a justification is to place the specific facts
of a defendant’s crimes in the sentencing grid.”4 Later in the opinion, the
Court noted that “a trial court that is contemplating a departure is not
required to consider where a defendant’s sentence falls in the sentencing

1
People v Smith, 482 Mich 292 (2008).
2
Justice CORRIGAN “cannot imagine” what more the trial judge could
have done to comply with the requirements of Smith and “fear[s] that
providing meaningful further articulation will be impossible in practice.”
But the trial judge has not yet had the opportunity to comply with Smith.
I reiterate that “[a] sentence cannot be upheld when the connection
between the reasons given for departure and the extent of the departure
is unclear.” Id. at 304.
3
MCL 769.34(3).
4
Smith, supra at 306 (emphasis added).
1126 482 MICHIGAN REPORTS
range grid.”5 This guidance assists, rather than impedes, a sentencing
court by showing one method of applying the requirements of Smith to a
sentence. Also, it undercuts Justice CORRIGAN’s implicit assumption that
a reviewing court will uphold a sentence only if the sentencing judge
refers to mathematical support for its departure sentence.
In this case, the sentencing judge referenced defendant’s previous
sexual assaults against this victim and against defendant’s sister. Defen-
dant’s prior assault on his sister was part of the decision to score five
points for prior record variable 5 (PRV 5), raising defendant’s guidelines
range. Justice CORRIGAN opines hypothetically that a sentencing court
could use the same prior crimes as the basis for a departure; she then
notes that a sentencing court that does so would contravene the statutory
language by counting those offenses twice in two mutually exclusive
categories. Such a hypothetical situation is not now before the Court.
Moreover, I believe that effective appellate review would correct any such
abuse of discretion. By requiring judges to provide additional explanation
for departure sentences, Smith provides more, not less, record informa-
tion from which an appellate court can identify an abuse of discretion.
Second, Justice CORRIGAN recites the circumstances surrounding the
charged offense in this case that the judge mentioned as a basis for
departure at sentencing. She then concludes that using those facts to add
a significant number of additional points to defendant’s offense variable
(OV) score is unhelpful. A mere 20 additional points would place
defendant in OV level VI—the highest level on the grid. Such a score
would set defendant’s minimum sentence under the guidelines at 101/2 to
171/2 years. Therefore, Justice CORRIGAN reasons, the guidelines “do not
directly contemplate a minimum sentence over 171/2 years for this
defendant, regardless of how many additional aggravating factors were
present.”
However, Smith explicitly stated that, if a defendant had an OV score
above 100, “the court may render a proportionate sentence above the
highest minimum for someone with a similar PRV score” because “the
Legislature did not contemplate a defendant with such a high OV score,
given that it used 100 OV points as the maximum for the grid.”6

5
Id. at 309. Smith also repeatedly rejected “mathematical certainty,”
“mathematical precision,” or “a rigid mathematical formula” in deter-
mining sentences. See id. at 311, 315-316. Justice CORRIGAN complains
that “[i]f a court cannot quantify the reasons for departure because they
are not contemplated by the guidelines,” the court will be unable to
explain why the particular departure from the guidelines is justified. But
Smith allows a sentencing court to use means to justify a departure
sentence other than referencing the sentencing grid or making a quan-
tifiable analysis. For example, “a comparison of a defendant’s character-
istics and those of a hypothetical defendant whose recommended sen-
tence is comparable to the departure sentence is a valuable exercise.” Id.
at 310.
6
Id. at 308-309.
 ACTIONS ON APPLICATIONS 1127
Therefore, in this case, the trial judge’s burden would be to explain why
the aggravating factors justified a life sentence. I do not share Justice
CORRIGAN’s concerns that Smith effectively ties the hands of a sentencing
judge who wishes to depart from the guidelines. Certainly, in this case,
the sentencing judge has yet to even attempt to justify the extent of the
departure.
Finally, Justice CORRIGAN provides a number of shocking details about
the “cruelty” that defendant inflicted on the victim. I agree that the
crime was very disturbing. However, I believe that her assertion that “a
life sentence appears entirely appropriate in light of defendant’s history
and the circumstances of this crime” supports disagreement with Smith7
more than her conclusion that the trial judge will be unable to conform
to the requirements of Smith.
I continue to believe that Smith’s interpretation that MCL 769.34(3)
requires a sentencing judge to justify the basis for “the departure it made
and not simply any departure it might have made”8 is appropriate.
Moreover, it is mandated by the language of the statute. Therefore, I
concur in the Court’s order remanding this case for resentencing in light
of Smith.
WEAVER, J. (dissenting). I would deny leave to appeal for the reasons
set forth in my dissenting statement in People v Smith, 482 Mich 292,
325-329 (2008).
CORRIGAN, J. (dissenting). I would grant leave in this case and in that
of the codefendant, see People v Kurtz, 482 Mich 1131 (2008), to
reconsider the burdensome requirements imposed on sentencing courts
by People v Smith, 482 Mich 292 (2008). This child rape case demon-
strates that Smith is unworkable. The trial judge adequately justified the
life sentence he imposed. Most significantly, I cannot fathom how the trial
court can comply with Smith. First, I cannot conceive of a way to justify
the departure mathematically by reference to the sentencing guidelines

7
Justice CORRIGAN’s dissent in Smith similarly discussed gruesome
details of the crime and the harm suffered, including many particulars
not cited by the trial court as a basis for departure at sentencing. Id. at
317; id. at 339-345 (CORRIGAN, J., dissenting). The majority opinion in
Smith agreed that the crime was “heinous,” id. at 311, but also
unequivocally stated: “A departure cannot be justified on the sole basis
that a crime is heinous. All criminal-sexual-conduct cases involving
young children are heinous.” Id. at 311 n 42.
I note that this point is underscored by Justice CORRIGAN’s response to
this concurrence. She claims that “[r]emand for further articulation thus
also wastes precious time and scarce resources.” I can certainly appreci-
ate her concerns about judicial economy. But I would rather allow the
trial judge to attempt to correctly apply the law than deny leave to appeal
solely because of hypothetical, and I believe unfounded, concerns about
Smith.
8
Smith, supra at 318 (emphasis in original).
1128 482 MICHIGAN REPORTS
where the defendants’ rape of one defendant’s disabled 11-year-old
daughter was “off the charts” with regard to cruelty and where this
defendant’s prior assaults on young girls militated in favor of a term of
life imprisonment. Second, in response to Justice KELLY’s concurring
statement, although Smith does not absolutely require a mathematical
analysis, I cannot imagine what more the trial judge here could have done
to otherwise comply with Smith.
The assaults in this case were against the 11-year-old daughter of
defendant’s girlfriend, who is the codefendant in the underlying case.
The child normally lived with her father and paternal grandmother
during the week, but stayed with her mother and defendant on weekends.
She is physically and mentally disabled as a result of cerebral palsy and
epilepsy. One weekend, her mother invited defendant to have sex with the
girl, as he had once before. Defendant admitted that he fondled the
child’s breasts and penetrated her vagina with his fingers and penis. The
child asked him to stop while the codefendant mother facilitated the rape
by holding her daughter’s legs open and spitting on defendant’s penis for
lubrication. The defendants also used a cell phone to take sexually
explicit pictures of the child.
When the defendant mother returned the child to her grandmother’s
home the next day, the mother attempted to conceal the rape by telling
the grandmother that the child might “tell her a story.” The mother
stated that she and defendant were having sex on the floor next to the
child’s bed when the child awoke, witnessed them, and began to cry.
Nonetheless, the grandmother took the child to the hospital after the
child told her that defendant had “stuck” his penis “inside [her] crotch.”
The medical examination revealed that the child’s vagina was bruised,
torn, and bleeding. Defendant later told the police that he had raped the
child on a prior occasion under similar circumstances.
The defendants’ acts could have justified multiple convictions of
first-degree criminal sexual conduct (CSC I), MCL 750.520b(1)(a) (sexual
penetration of a person under 13 years of age), and child sexually abusive
activity, MCL 750.145c(2). For each defendant, the prosecutor agreed to
dismiss a single count of child sexually abusive activity in return for the
defendant’s guilty plea to one count of CSC I.
The presentence investigation report states that defendant showed
“no remorse or concern” for the victim but was “more angry that he was
caught and punished.” The investigation also revealed that defendant,
who was an adult at the time of the instant crimes, had a record of
juvenile offenses, including sexually assaulting his younger sister on
three or four occasions. He admitted that his sister would tell him to stop
and would sometimes cry. He had been placed on probation for the
assaults, but had violated his probation several times, including by taking
nude photos to school and pulling down the pants of two boys.
The maximum sentence for CSC I is life in prison. The legislative
sentencing guidelines recommended a minimum sentence range for
defendant of 108 to 180 months (9 to 15 years). The judge opined that the
guidelines range was inadequate for several reasons and departed from it,
as permitted by MCL 769.34(3), imposing a parolable life sentence.
Addressing defendant, the judge stated:
 ACTIONS ON APPLICATIONS 1129
[T]he guidelines, in the Court’s opinion, do not adequately
reflect that you knew that the victim was an 11 year old girl with
the mental capacity of a seven year old, in addition to having
physical problems, having cerebral palsy and epilepsy. The guide-
lines do not, in the Court’s opinion, adequately consider that the
child’s mother had to hold the victim’s legs open so that you could
penetrate her with your penis.
The guidelines also do not adequately consider that you were
also involved in the taking of sexual [sic] explicit pictures of the
victim. Additionally, in the Court’s opinion, the guidelines do not
adequately reflect that this is your second sexually assaultive
behavior on your part within a relatively short period of time and
that you had previously had [sic] sexually assaulted your little
sister about six years ago and received counseling thereafter,
which apparently didn’t do a whole lot of good.
The sentence of the Court, all that having been said, is that you
spend the rest of your life in prison.

As in the case of the defendant mother, I believe the judge offered an

adequate “substantial and compelling reason,” MCL 769.34(3), to impose
a life sentence under the circumstances of this case and where defendant
is a repeat sex offender. Indeed, the judge offered several reasons for
departure. Most significantly, I cannot see how the judge on remand could
further explain the departure under Smith.
Smith, supra at 318, centrally suggests that a trial court should
compare its departure sentence “against the sentencing grid and anchor[]
it in the sentencing guidelines.” Here defendant’s five prior record
variable (PRV) points and 80 offense variable (OV) points placed him in
the B-V range for Class A offenses, calling for a minimum sentence of 108
to 180 months. MCL 777.62. Yet, first, defendant’s record revealed a
pattern of sexual assaults that were not accounted for, including several
against his sister and a prior assault on the current victim. Defendant’s
lack of reform and likelihood of reoffending is highly relevant to an
appropriate sentence. One could argue under Smith that, if defendant
had been convicted as an adult of each sexual assault he admitted
committing, his record would reflect three or more prior high severity
felonies justifying a score of at least 75 points under PRV 1. MCL
777.50. This alone would place him in the F-V range, which explicitly
allows a minimum sentence of life in prison. But I think that we thwart
the guidelines if we effectively allow courts to score additional points for
nonexistent offenses and particularly for offenses that explicitly justify
lower scores under other variables. Here, for example, defendant’s prior
sexual assaults of his sister were subsumed into a single juvenile assault
adjudication that was scored under PRV 5. The assault adjudication and
a second juvenile adjudication for retail fraud together resulted in a
five-point score for PRV 5. Thus, if we hypothetically count the sexual
assaults of his sister as felonies for purposes of a departure rationale, we
contravene the statutory language and effectively count the assaults
1130 482 MICHIGAN REPORTS
twice in two mutually exclusive categories. Significantly, I suspect that a
court could mathematically justify almost any conceivable sentence in
this way by extending or hypothetically rescoring the guidelines to
explain a departure. It is in part for this reason that I find Smith
unworkable. To illustrate, here the substantial and compelling nature of
defendant’s prior crimes lies in their character as a pattern of admitted
sexual assaults on young, unwilling girls. Their nature supports a lengthy
prison sentence for the same reasons such a sentence is explicitly called
for by the guidelines when an offender is convicted of multiple prior
felonious sexual assaults. But the prior crimes arguably would not
similarly justify a life sentence if they had been mere uncharged acts akin
to unrelated felonies such as drug offenses or crimes against property.
Yet, arguably, a sentencing judge could “count” such hypothetical felonies
in the same way I “counted” the prior sexual assaults here in an attempt
to justify a life sentence.
The only pertinent question under MCL 769.34(3) is whether a
“substantial and compelling reason” justifies the sentence imposed—not
whether a court can hypothesize mathematical support for its departure.
And I would argue that the Legislature’s actual formulation has a
well-supported rationale. Here, the substantial and compelling reason to
depart was defendant’s unremitting sexual assaults on young girls, for
which he apparently showed no remorse or reform despite prior punish-
ment. In citing this reason, the trial judge offered an objective and
verifiable fact that “keenly” or “irresistibly” grabs our attention and
clearly is of “considerable worth in deciding a sentence.” People v
Babcock, 469 Mich 247, 257 (2003) (citation and quotation marks
omitted). The judge thus meaningfully fulfilled his duty to “consider
whether [his] sentence is proportionate to the seriousness of the defen-
dant’s conduct and his criminal history . . . .” Id. at 264. It would have
been considerably less meaningful—and arguably unlawful—if he had
concocted a guidelines calculation providing for a life sentence by
effectively scoring variables that, by their terms, were not supported by
the record.
Second, the judge cited defendant’s exploitation of a disabled child
and stressed that the rape required the mother to hold the child’s legs
open. Defendant’s 80-point OV score included 10 points for OV 10 as is
appropriate when “[t]he offender exploited a victim’s physical disability,
mental disability, youth or agedness, or a domestic relationship or the
offender abused his or her authority status.” MCL 777.40(1)(b). But,
here, defendant exploited the victim’s physical disability, mental disabil-
ity, youth and a domestic relationship. Should we multiply 10 points by
these four attributes? A 40-point score for OV 10 would place defendant
in the B-VI range, which calls for a minimum sentence of 126 to 210
months (101/2 to 171/2 years). Defendant also received the maximum
10-point score for OV 4 (psychological injury requiring treatment). In
light of this rape of a child by her own mother and a live-in boyfriend,
which required physical manipulation of the child because of her cerebral
palsy, should the score for psychological injury be doubled? Tripled?
Either way it matters not because the 30 additional points “under” OV 10
already would have placed defendant in the highest OV range—level VI
 ACTIONS ON APPLICATIONS 1131
on the grid. Thus, the guidelines do not directly contemplate a minimum
sentence over 171/2 years for this defendant, regardless of how many
additional aggravating factors were present.
As I observed in my dissent in Smith, the very fact that the
Legislature allows sentencing judges to depart from the guidelines shows
that the guidelines are incapable of taking some factors into account. The
Legislature thus expressly relies on a judge’s ability to weigh such
circumstances.
[D]eparture sentences should by definition be governed by a
different standard than sentences within the guidelines range. By
choosing to permit judges to “depart” from the guidelines range
for unusual offenses, the Legislature contemplated a less stringent
standard of uniformity for unusual offenses, which should because
of their nature be treated differently. Departure sentences gener-
ally involve less quantifiable facts that are not adequately covered
by the normative guidelines. [Smith, supra at 338 (CORRIGAN, J.,
dissenting).]

Finally, as Justice KELLY observes, under Smith a sentencing court

nonetheless “is not required to consider where a defendant’s sentence
falls in the sentencing grid.” Smith, supra at 309. Rather, Smith permits
the court to “render a proportionate sentence above the highest mini-
mum for someone with a similar PRV score” because “the Legislature did
not contemplate a defendant with such a high OV score, given that it used
100 OV points as the maximum for the grid.” Smith, supra at 308-
309. Justice KELLY thus concludes: “Therefore, in this case, the trial
judge’s burden would be to explain why the aggravating factors justified
a life sentence.” Ante at 1127. Her conclusion exemplifies the central
problem with Smith as applied: If a court cannot quantify the reasons for
departure because they are not contemplated by the guidelines, what
more can a court do to “explain why” the reasons for departure justify the
sentence imposed? Here, what more could the court have done to justify
a life sentence after recounting the circumstances of the crime, noting
defendant’s past sexual assaults, and recognizing that defendant failed to
reform despite prior punishment and counseling? In cases such as this
one, I fear that providing meaningful further articulation will be impos-
sible in practice.
In sum, I think that the trial judge fully complied with MCL 769.34(3)
in this case and that a remand for further articulation under Smith
imposes an unnecessary and potentially impossible task. Significantly,
although a life sentence appears entirely appropriate in light of defen-
dant’s history and the circumstances of this crime, I am not convinced
that the trial judge could ever impose a life sentence while conforming to
the Smith requirements. Remand for further articulation thus also
wastes precious time and scarce resources. For these reasons, I would
grant leave to appeal so as to reconsider Smith.
PEOPLE V KURTZ, No. 136262. Pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we vacate the sentence of the Jackson Circuit
1132 482 MICHIGAN REPORTS
Court and remand this case to that court for resentencing. The trial judge
failed to offer any valid explanation justifying why he chose to sentence
the defendant to a term of life imprisonment. People v Smith, 482 Mich
292 (2008). On remand, the trial court shall articulate on the record why
this level of departure is warranted or resentence the defendant either
within the appropriate sentencing guidelines range or articulate on the
record why a different level of departure is warranted. We do not retain
jurisdiction. Court of Appeals No. 283580.
KELLY, J. (concurring). I concur fully in the remand order. I write
separately only to respond to concerns raised by Justice CORRIGAN in her
dissenting statement.
First, I emphasize that resentencing is required here because, as the
order states, “[t]he trial judge failed to offer any valid explanation
justifying why he chose to sentence the defendant to a term of life
imprisonment.” The sentence in this case was handed down before the
Court released its opinion in Smith;1 therefore, the trial judge may not
have thought it necessary to express why the particular departure he
chose was justified by substantial and compelling reasons.2 Our order
expresses no opinion on the validity of the reasons the trial judge gave for
departing from the guidelines.
Given the circumstances, I believe that there is an inadequate basis to
assert, as Justice CORRIGAN does, that the trial judge could never impose
a life sentence while conforming to the Smith requirements. Justice
CORRIGAN ties many of her concerns to Smith’s suggestion that a trial
court could compare its departure sentence “against the sentencing grid
and anchor[] it in the sentencing guidelines.”3 She notes the trial judge’s
reference at sentencing to the nature of the crime and the damage caused
to defendant’s child as substantial and compelling reasons to depart. But
Justice CORRIGAN fails to point to anything in the record indicating why
the sentencing judge believed that a life sentence was appropriate. Smith
requires that the trial judge explain why a lesser departure would be
disproportionate to the defendant’s criminal history and the seriousness
of defendant’s conduct.
In this case, Justice CORRIGAN recites the facts surrounding the
charged offense that the trial judge mentioned as a basis for departure.
She then concludes that using those facts to add a significant number of
additional points to defendant’s offense variable (OV) score is unhelpful.
She states that a mere 10 additional points would place defendant in OV

1
People v Smith, 482 Mich 292 (2008).
2
Justice CORRIGAN questions what more the trial judge could have done
to comply with the requirements of Smith and “fear[s] that providing
meaningful further articulation will be impossible in practice.” But, the
court has not yet had the opportunity to comply with Smith. I reiterate
that “[a] sentence cannot be upheld when the connection between the
reasons given for departure and the extent of the departure is unclear.”
Id. at 304.
3
Id. at 318.
 ACTIONS ON APPLICATIONS 1133
level VI—the highest level on the grid. Such a score would set defendant’s
minimum sentence under the guidelines at 111/4 to 183/4 years. Therefore,
she reasons, “it is essentially impossible to anchor a departure in the
guidelines based on the degree to which OV 10 failed to adequately
contemplate the circumstances of the crime.”
To the contrary, Smith explicitly stated that, if a defendant has an OV
score above 100, “the court may render a proportionate sentence above
the highest minimum for someone with a similar PRV score” because
“the Legislature did not contemplate a defendant with such a high OV
score, given that it used 100 OV points as the maximum for the grid.”4
Therefore, in this case, the trial judge’s burden is to explain why the
aggravating factors it identified justified a sentence of life in prison. I do
not share Justice CORRIGAN’s concerns that Smith effectively ties the
hands of a sentencing judge who wishes to depart from the guidelines.
Certainly, in this case, the sentencing judge has yet to even attempt to
justify the extent of the departure.5
I continue to believe that Smith’s interpretation of MCL 769.34(3),
requiring a sentencing judge to justify the basis for “the departure it
made and not simply any departure it might have made,”6 is appropriate.
Moreover, it is mandated by the language of the statute. Therefore, I
concur in full in the Court’s order remanding this case for resentencing
in light of Smith.
WEAVER, J. (dissenting). I would deny leave to appeal for the reasons
set forth in my dissenting statement in People v Smith, 482 Mich 292,
325-329 (2008).
CORRIGAN, J. (dissenting). I would grant leave in this case and in that
of the codefendant, see People v Howard, 482 Mich 1125 (2008), to
reconsider the burdensome requirements imposed upon sentencing
courts by People v Smith, 482 Mich 292 (2008). For the reasons I explain
in Howard, this child rape case demonstrates that Smith is unworkable.
Defendant is the mother of a disabled 11-year-old girl. As I fully
explain in Howard, defendant encouraged and facilitated her codefen-
dant boyfriend’s rape of her daughter on at least two occasions. The
codefendant proceeded to penetrate the girl’s vagina with his fingers and
penis only after defendant assured him that he would not get in trouble
and the child would not tell anyone. When defendant returned the child
to her grandmother’s home the next day, defendant attempted to conceal
the rape by telling the grandmother that the child might “tell her a

4
Id. at 308-309.
5
Justice CORRIGAN’s response to this concurrence claims that “[r]e-
mand for further articulation thus also wastes precious time and scarce
resources.” I can certainly appreciate her concerns about judicial
economy, but I would rather allow the trial judge to attempt to correctly
apply the law than deny leave to appeal solely because of hypothetical,
and I believe unfounded, concerns about Smith.
6
Smith, supra at 318.
1134 482 MICHIGAN REPORTS
story.” Defendant admitted that she knew that her daughter had been
injured because defendant saw bleeding between her daughter’s legs.
The defendants’ acts would have justified multiple convictions of
first-degree criminal sexual conduct (CSC I), MCL 750.520b(1)(a) (sexual
penetration of a person under 13 years of age), and child sexually abusive
activity, see MCL 750.145c(2). For each defendant, the prosecutor agreed
to dismiss a single count of child sexually abusive activity in return for
the defendant’s guilty plea to one count of CSC I.
The presentence investigation report states that defendant had 12
prior misdemeanors and was on probation at the time of the instant
offense. Her prior convictions included contributing to the delinquency of
a minor and domestic violence. The Department of Corrections recom-
mended the maximum allowable term of incarceration for defendant,
opining in part that the victim “will live the rest of her life knowing the
one person who should have loved her more than life, [sic] betrayed her.
It will remain to be seen if [the victim] will ever trust another person.”
The maximum sentence for CSC I is life in prison. The legislative
sentencing guidelines recommended a minimum sentence range for
defendant of 126 to 210 months (101/2 to 171/2 years). The judge opined
that the guidelines range was inadequate for several reasons and de-
parted from it, as permitted by MCL 769.34(3), imposing a parolable life
sentence. The judge opined:
The court’s deviating over the guidelines as in the Court’s
opinion the guidelines do not adequately consider that the child
. . . was only 11 years of age at the time but had the mental
capacity of a seven year old.
The guidelines also do not adequately consider, in the Court’s
opinion, that the victim had cerebral palsy and that the defendant,
because of the physical handicap, held her daughter’s legs open to
allow Mr. Howard [the codefendant] to achieve penetration and
that this happened on two separate occasions.
The guidelines also do not adequately consider that the defen-
dant was taking sexually explicit photos of the victim for whatever
reason, which is unclear to the Court. The guidelines also do not
adequately consider, in the Court’s opinion, the short and long-
term psychological effects upon the child who, even now, misses
the mother and wants to see her. This is simply abhorrent
behavior.
The sentence of the Court deviating over the guidelines, which
the Court thinks is appropriate, is that the defendant spend the
rest of her life in prison . . . .

As in the case of the codefendant, I think the judge offered an

adequate “substantial and compelling reason,” MCL 769.34(3), to impose
a life sentence for this mother who solicited and participated in the abuse
and exploitation of her disabled child on more than one occasion. Indeed,
 ACTIONS ON APPLICATIONS 1135
the judge offered several reasons to depart. Most significantly, I cannot
see how the judge on remand could further explain the departure under
Smith.
Smith, supra at 318, centrally suggests that a trial court should
compare its departure sentence “against the sentencing grid and anchor[]
it in the sentencing guidelines.” Here defendant’s 20 prior record
variable (PRV) points and 90 offense variable (OV) points placed her in
the C-V range for Class A offenses, calling for a minimum sentence of 126
to 210 months. MCL 777.62. This case differs from that of the codefen-
dant because defendant did not have a history of sexual assault. But the
trial judge reasonably points to the nature of the crime and to the damage
caused to defendant’s child as substantial and compelling reasons to
depart. Defendant exploited her own disabled child while the child was in
her care. Indeed, defendant offered the child to her boyfriend and
encouraged and facilitated the rape. If these circumstances do not
“keenly” and “irresistibly” grab our attention, People v Babcock, 469
Mich 247, 257 (2003) (citation and quotation marks omitted), I cannot
imagine what would. By emphasizing the serious nature and results of
this abuse, the judge meaningfully fulfilled his duty to “consider whether
[the] sentence is proportionate to the seriousness of the defendant’s
conduct and [her] criminal history . . . .” Id. at 264.
Next, as in the codefendant’s case, defendant received a 10-point score
for OV 10 as is appropriate when “[t]he offender exploited a victim’s
physical disability, mental disability, youth or agedness, or a domestic
relationship or the offender abused his or her authority status.” MCL
777.40(1)(b). But defendant exploited the victim’s physical disability,
mental disability, youth, domestic relationship and authority status as
the child’s own mother by offering up her child for rape. Is it enough to
multiply 10 points by these five attributes? A 50-point score for OV 10
would give defendant a total of 130 OV points, but such a score would
make little difference in her prescribed minimum sentence range; her
90-point OV score already placed her in the second highest OV category,
so only 10 additional points places her in the highest OV category for 100
points or more. This would place defendant in the C-VI range, which calls
for a minimum sentence of 135 to 225 months (111/4 to 183/4 years). Thus,
it is essentially impossible to anchor a departure in the guidelines based
on the degree to which OV 10 failed to adequately contemplate the
circumstances of the crime. Similarly, defendant received the maximum
10-point score for OV 4 (psychological injury requiring treatment). But
because the OV category maxes out, so to speak, if only 10 points are
added to her 90-point score, it is impossible to calculate what sentence
would be appropriate if both OV 10 and OV 4 could be scored at a number
of points more applicable to this crime.
As I observed in my dissent in Smith and my statement in the
codefendant’s case, the very fact that the Legislature allows sentencing
judges to depart from the guidelines shows that the guidelines are
incapable of taking some factors into account. The Legislature thus
expressly relies on a judge’s ability to weigh such circumstances.
1136 482 MICHIGAN REPORTS
[D]eparture sentences should by definition be governed by a
different standard than sentences within the guidelines range. By
choosing to permit judges to “depart” from the guidelines range
for unusual offenses, the Legislature contemplated a less stringent
standard of uniformity for unusual offenses, which should because
of their nature be treated differently. Departure sentences gener-
ally involve less quantifiable facts that are not adequately covered
by the normative guidelines. [Smith, supra at 338 (CORRIGAN, J.,
dissenting).]

Finally, as Justice KELLY observes, under Smith a sentencing court

nonetheless “is not required to consider where a defendant’s sentence
falls in the sentencing grid.” Smith, supra at 309. Rather, Smith permits
the court to “render a proportionate sentence above the highest mini-
mum for someone with a similar PRV score” because “the Legislature did
not contemplate a defendant with such a high OV score, given that it used
100 OV points as the maximum for the grid.” Smith, supra at 308-
309. Justice KELLY thus concludes: “Therefore, in this case, the trial
judge’s burden is to explain why the aggravating factors it identified
justified a sentence of life in prison.” Ante at 1133. Her conclusion
exemplifies the central problem with Smith as applied: If a court cannot
quantify the reasons for departure because they are not contemplated by
the guidelines, what more can a court do to “explain why” the reasons for
departure justify the sentence imposed? Here, what more could the court
have done to justify a life sentence after describing defendant’s “abhor-
rent behavior” in offering up her own disabled daughter for rape? In
cases such as this one, I fear that providing meaningful further articu-
lation will be impossible in practice.
In sum, I think that the trial judge fully complied with MCL 769.34(3)
in this case and a remand for further articulation under Smith imposes
an unnecessary and potentially impossible task. Significantly, although a
life sentence appears entirely appropriate in light of the circumstances of
this crime and defendant’s role as the victim’s mother, I am not convinced
that the trial judge could ever impose a life sentence while conforming to
the Smith requirements. Remand for further articulation thus also
wastes precious time and scarce resources. For these reasons, I would
grant leave to appeal so as to reconsider Smith.
CHAMBERS V WAYNE COUNTY AIRPORT AUTHORITY, No. 136900. On Decem-
ber 3, 2008, the Court heard oral argument on the application for leave
to appeal the June 5, 2008, judgment of the Court of Appeals. On order
of the Court, the application is again considered. MCR 7.302(G)(1). In
lieu of granting leave to appeal, we reverse the judgment of the Court of
Appeals, for the reasons stated in the Court of Appeals dissenting
opinion, and we remand this case to the Wayne Circuit Court for entry of
an order of judgment for the defendant. Court of Appeals No. 277900.
CAVANAGH, J. (dissenting). I dissent from the majority’s peremptory
reversal of the Court of Appeals judgment in this case. I would affirm the
Court of Appeals or grant leave to appeal for proper consideration.
 ACTIONS ON APPLICATIONS 1137
The majority’s order reverses “for the reasons stated in the Court of
Appeals dissenting opinion.” But that opinion appears to contain ana-
lytical errors. First, the Court of Appeals dissent appears to assume that
the statute requires a written notice. Because the statute does not
expressly require that the notice must be written, I would not leap to
such an assumption. Second, the Court of Appeals dissent assumes that
the statute requires that notice be made by formal service of process.
Given that the section of the statute addressing service of process appears
discretionary, I would not hastily adopt a contrary conclusion.
Additionally, the Court of Appeals dissent relies on Rowland v
Washtenaw Co Rd Comm, 477 Mich 197 (2007). But Rowland addressed
a notice that was given after the statutory period for notice had elapsed.
In the present case, plaintiff’s verbal notice was given well within the
statutory period. Thus, Rowland is distinguishable. Because Rowland is
contrary to the longstanding jurisprudence of this Court on what
constitutes sufficient notice under a statute such as MCL 691.1406, I
would not extend Rowland beyond its facts. See, e.g., Meredith v City of
Melvindale, 381 Mich 572, 579-580 (1969) (notice from “inexpert lay-
man” should be liberally construed and not to be found insufficient for
“some technical defect”); Brown v City of Owosso, 126 Mich 91, 95 (1901)
(notice is sufficient if it is understandable and brings the important facts
to a defendant’s attention).
Accordingly, I respectfully dissent.
WEAVER, J. (dissenting). I dissent and would deny leave to appeal
because I am not persuaded that the Court of Appeals judgment in this
matter should be peremptorily reversed.
KELLY, J. (dissenting). I would grant leave to appeal to reconsider
Rowland v Washtenaw Co Rd Comm.1
PEOPLE V POOLE, No. 137032. Pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we vacate the December 13, 2007, judgment of
sentence of the Genesee Circuit Court, and we remand this case to the
trial court for further proceedings. The trial court imposed a prison
sentence where the sentencing guidelines required an intermediate
sanction, and the court stated that it did not intend to depart from the
guidelines range. On remand, if the trial court again revokes probation,
it shall sentence defendant to an intermediate sanction or articulate on
the record a substantial and compelling reason for departing from the
sentencing guidelines range in accordance with MCL 769.34(4)(a) and
People v Babcock, 469 Mich 247 (2003). Finally, the trial court agreed to
make changes to the presentence report that are not reflected therein.
On remand, the trial court shall perform this ministerial act. In all other
respects, leave to appeal is denied, because we are not persuaded that the
remaining questions presented should be reviewed by this Court. We do
not retain jurisdiction. Court of Appeals No. 285219.
KELLY, J. (concurring in part and dissenting in part). For over 38
years, Michigan law has been that, when determining whether to revoke
probation, the court considers only evidence related to the charged

1
Rowland v Washtenaw Co Rd Comm, 477 Mich 197 (2007).
1138 482 MICHIGAN REPORTS
violation of the probation order. It has been clearly established that only
such evidence may provide a basis for the decision.1 The judge in this case
violated that rule. Defendant was charged with violating the terms of his
probation by failing to report to his probation officer. The judge based his
decision to revoke probation, in part, on assault charges brought against
defendant in a separate, unrelated case.2 But defendant had been
acquitted of those charges. Hence, the alleged assault should not have
been considered because it was not charged in this matter and because, in
the eyes of the law, defendant was not guilty of it.
I would vacate the order revoking probation and remand the case with
instructions to the judge to consider only the evidence relating to
defendant’s failure to report to his probation officer.

Leave to Appeal Denied December 19, 2008:

ROBERSON BUILDERS, INC V LARSON, No. 132363. On order of the Court,

leave to appeal having been granted and the briefs and oral arguments of
the parties having been considered by the Court, we vacate our order of
February 1, 2008. The application for leave to appeal the September 19,
2006, judgment of the Court of Appeals is denied, because we are no
longer persuaded that the questions presented should be reviewed by this
Court. Court of Appeals No. 260039.
KELLY, J. (concurring). I concur in the Court’s order denying leave to
appeal in this case. The Court of Appeals correctly held that plaintiff is
not entitled to a setoff against defendant’s counterclaims.
Plaintiff, a contractor, sued defendant, a homeowner, for unpaid
charges under a home remodeling contract. The trial court dismissed
plaintiff’s suit pursuant to MCL 339.2412(1) when it learned that
plaintiff did not have a residential builder’s license. The case proceeded
to trial on defendant’s counterclaims for breach of contract and violation
of the Michigan Consumer Protection Act (MCPA).1 Despite plaintiff’s
unlicensed status, the trial court allowed it to present to the jury a claim
for a setoff against defendant’s claims based on work it had performed
under the contract. The jury awarded damages to defendant but set off
several thousand dollars for work performed by plaintiff.

1
People v Elbert, 21 Mich App 677 (1970); People v Rial, 399 Mich 431,
440 (1976) (LEVIN, J. concurring); People v Longmier, 114 Mich App 351
(1982); People v Banks, 116 Mich App 446 (1982); People v Graber, 128
Mich App 185, 193 (1983); People v Laurent, 171 Mich App 503 (1988);
People v Pillar, 233 Mich App 267, 270 (1998).
2
The judge presided over the assault trial and stated that he would
have found defendant guilty had he been on the jury. He said defendant
was lucky that the police “screwed up the investigation.” He was
convinced that defendant was a “danger” and needed to be “slowed
down.”
1
MCL 445.901 et seq.
 ACTIONS ON APPLICATIONS 1139
The Court of Appeals reversed, holding that plaintiff was not entitled
to a setoff because it was unlicensed and therefore barred from seeking
compensation for work performed. We initially granted leave to appeal to
determine whether asserting a claim for a setoff amounts to bringing or
maintaining an action for purposes of MCL 339.2412(1).
MCL 339.2412(1) provides:

A person or qualifying officer for a corporation or member of a

residential builder or residential maintenance and alteration con-
tractor shall not bring or maintain an action in a court of this state
for the collection of compensation for the performance of an act or
contract for which a license is required by this article without
alleging and proving that the person was licensed under this
article during the performance of the act or contract. [Emphasis
added.]
Black’s Law Dictionary (8th ed) generally defines “action” as “a civil
or criminal judicial proceeding.” Black’s further notes that an “ ‘action’
in the sense of a judicial proceeding includes recoupment, counterclaim,
set-off, suit in equity, and any other proceedings in which rights are
determined.”2 Here, plaintiff’s claim was in fact a setoff against an
amount found by the jury to be owed to defendant.3 Specifically, the trial
court’s judgment provides:

ROBERSON’S CLAIM FOR SETOFF

5. Mr. Larson asked for or received services in addition to those

provided for in the construction contract and waived the contract
provision requiring his written change order as to those items.
6. The dollar value of the items as to which Mr. Larson waived
the writing requirement and which Roberson performed are as
follows:
Extras: $6,378.

By labeling something a “recoupment” rather than a setoff, an

unlicensed builder may not avoid the proscription of § 2412(1). Such a
maneuver, if permitted, would elevate form over substance. Furthermore,

2
See MCL 440.1201(1).
3
Justice MARKMAN opines that plaintiff’s claim is a “recoupment”
rather than a “setoff.” He relies on the definition of “setoff” in Black’s
Law Dictionary (6th ed). But he overlooks Black’s second definition of
“setoff,” which includes “a debtor’s right to reduce the amount of a debt
by any sum the creditor owes the debtor; the counterbalancing sum owed
by the creditor.” I believe that, in his attempt to find the proper label for
plaintiff’s claim, Justice MARKMAN misses the point. At issue is whether
plaintiff’s setoff, recoupment, counterclaim, counterdemand (call it what
you may) constitutes an “action” within the meaning of § 2412(1).
1140 482 MICHIGAN REPORTS
in Stokes v Millen Roofing Co, we broadly construed the statutory term
“compensation.”4 Even though the plaintiff in Stokes sought compensa-
tion in the form of a “setoff,” it was nonetheless “compensation” or
“something to be received as an equivalent for [the plaintiff’s] services.”5
Accordingly, given Black’s definition of “action,” the precedent in Stokes,
and the desirability of avoiding misleading labels, plaintiff’s claim in this
case constitutes an “action” for purposes of § 2412(1).6
This analysis is only the first step in applying § 2412(1). The second
step is to determine whether plaintiff’s setoff claim constitutes an action
for the “collection of compensation.” In Stokes, we held that because
“compensation” is not a term of art, we apply a dictionary definition to
it.7 Accordingly, “compensation” means “something given or received as
an equivalent for services, debt, loss, injury, etc.; indemnity; reparation;
payment.”8 Applying this definition for purposes of § 2412(1), we held
that the statute “disallows an action for the reasonable value of materials
conveyed, because such an action seeks ‘payment’ or ‘something given
or received as an equivalent for [a] debt’ or ‘loss.’ ”9
When these definitions are applied to this case, plaintiff’s claim is
explicitly barred by § 2412(1). Plaintiff is seeking payment for work it
performed on defendant’s home. The trial court, pursuant to § 2412(1),
dismissed plaintiff’s initial suit for breach of contract because plaintiff
was unlicensed. Thus, plaintiff is now essentially seeking to do indirectly
what it could not accomplish directly, maintain an action against defen-
dant for damages for breach of contract. In fact, the compensation
plaintiff seeks is a dollar-for-dollar reduction in the amount owed to
defendant.

4
Stokes v Millen Roofing Co, 466 Mich 660, 666 (2002).
5
Id. at 665 (citation and quotation marks omitted).
6
I agree with Justice MARKMAN that, according to Black’s Law Dictio-
nary, plaintiff’s claim for a setoff may arguably be characterized as a
“defense.” However, both Stokes and Black’s lead to the conclusion that
an “action” includes a claim for a setoff. The Court of Appeals held, and
this Court has agreed, that a claim such as plaintiff’s constitutes an
“action” as a matter of law. Any further discussion of whether an “action”
encompasses setoffs, recoupments, etc. is pointless once it was deter-
mined that plaintiff’s claim constituted an “action” under § 2412(1).
Moreover, Justice MARKMAN’s concern for the potential exposure of
unlicensed builders to lawsuits is of no consequence to the resolution of
this case. The Legislature clearly intended that builders who wish to use
the courts to enforce their construction contracts with homeowners must
obtain licensure from the state.
7
Stokes, supra at 665.
8
Random House Webster’s College Dictionary (1995).
9
Stokes, supra at 666.
 ACTIONS ON APPLICATIONS 1141
The Court of Appeals properly held that plaintiff was not entitled to
seek a setoff against defendant’s counterclaims. Accordingly, I concur in
the Court’s order denying plaintiff’s application for leave to appeal.
YOUNG, J. I join the statement of Justice KELLY.
MARKMAN, J. (dissenting). Plaintiff contractor sued defendant home-
owner for unpaid charges under a contract for home remodeling. Its suit
was dismissed on the basis of MCL 339.2412(1) when it was disclosed that
plaintiff did not have a residential-construction license. The case then
proceeded to trial on defendant’s counterclaims for breach of contract
and violation of the Michigan Consumer Protection Act (MCPA), MCL
445.901 et seq. The trial court allowed plaintiff to present a “setoff” claim
as an affirmative defense based on certain work it had performed under
the contract.1 Although the jury eventually determined that defendant
was entitled to $25,464 because plaintiff had breached the contract by
failing to provide workmanlike services, it found that plaintiff was
entitled to a “setoff” of $6,378. The jury also determined that plaintiff
had not “failed to provide the promised benefit” under the contract, so
the trial court awarded no MCPA damages. The Court of Appeals ruled
that plaintiff was not entitled to any “setoff” because it was unlicensed,
reversed on the MCPA claim, and remanded to the trial court to
determine the attorney fees that should be awarded to defendant under
the MCPA.
MCL 339.2412(1) provides:

A person or qualifying officer for a corporation or member of a

residential builder or residential maintenance and alteration con-
tractor shall not bring or maintain an action in a court of this state
for the collection of compensation for the performance of an act or
contract for which a license is required by this article without
alleging and proving that the person was licensed under this
article during the performance of the act or contract. [Emphasis
added.]

Therefore, an unlicensed contractor cannot “bring or maintain an

action . . . for the collection of compensation . . . .” See Stokes v Millen
Roofing Co, 466 Mich 660, 667 (2002).

1
Although the parties and the lower courts refer to plaintiff’s claim as
a setoff, the claim is more accurately identified as a recoupment. A setoff
is a “[r]emedy employed by defendant to discharge or reduce plaintiff’s
demand by an opposite one arising from a transaction which is extrinsic
to plaintiff’s cause of action.” Black’s Law Dictionary (6th ed). A
recoupment is “[t]he right of the defendant to have the plaintiff’s
monetary claim reduced by reason of some claim the defendant has
against the plaintiff arising out of the very contract giving rise to
plaintiff’s claim.” Id. Because, here, plaintiff’s claim arises from the same
contract giving rise to defendant’s claim, it is one for a recoupment and
not for a setoff.
1142 482 MICHIGAN REPORTS
The issue here is whether making a claim for a setoff or recoupment
as a defense to another party’s claim amounts to “bring[ing] or main-
tain[ing] an action.” Black’s Law Dictionary (6th ed) defines “action” as
“a lawsuit brought in a court; a formal complaint within the jurisdiction
of a court of law.”2 A cause of action may be asserted by a “complaint,
cross-claim, counterclaim, or third-party claim . . . .” MCR 2.111(F)(2).
Here, the setoff or recoupment claim was not asserted in a complaint,
cross-claim, counterclaim, or third-party claim. Rather, it was asserted
only as a defense in plaintiff’s answer to defendant’s counterclaim.
MCR 2.111(F)(2) provides that a “party against whom a cause of
action has been asserted by complaint, cross-claim, counterclaim, or
third-party claim must assert in a responsive pleading the defenses the
party has against the claim.” That is, a party must file an answer raising
any defenses it has to an action that has been filed against it.3 This at
least suggests that a defense does not constitute an “action,” but, rather,
constitutes something one files to protect oneself against an action that
has already been brought against one. Thus understood, raising a defense
would not constitute “bring[ing] or maintain[ing] an action” under MCL
339.2412(1).

2
Justice KELLY concludes that because Black’s Law Dictionary (7th ed)
provides that “ ‘[a]ction’ in the sense of a judicial proceeding includes
recoupment, counterclaim, set-off, suit in equity, and any other proceed-
ing in which rights are determined,” and because plaintiff’s claim was a
“setoff,” it is necessarily an “action” for purposes of MCL 339.2412(1). I
disagree. Not only does Black’s (6th ed) itself indicate that a recoupment,
which, as noted above, properly describes the instant claim, is “a purely
defensive matter,” and not only does Black’s (8th ed) itself states that a
recoupment constitutes an “affirmative defense,” which, as noted below,
is distinct from an “action,” but the language invoked by Justice KELLY
quotes the Uniform Commercial Code (UCC) § 1-201(b)(1). The instant
case does not involve the UCC, but, rather, the Occupational Code, which
statute has a very different purpose, with particular implications in
terms of what constitutes an “action.” Unlike the UCC, which is designed
to simplify, clarify, and make uniform the law of commercial transactions,
the Occupational Code specifically prohibits unlicensed professionals
from bringing an “action” in order to facilitate the code’s purpose of
preventing and penalizing unlicensed activity. Finally, even on its own
terms, that an “action” under the UCC “includes” a recoupment and a
setoff does not logically signify that a recoupment or setoff can only be
considered an action, and not something else in a different context as
well. That, for example, the term “Christmas Decorations” includes pine
trees does not mean that pine trees may not also be considered coniferous
trees for different purposes.
3
An “answer” is “the formal written statement made by a [party]
setting forth the grounds for [the party’s] defense[.]” Black’s Law
Dictionary (6th ed).
 ACTIONS ON APPLICATIONS 1143
This conclusion is further underscored by the definition of “defense.”
A “defense” is “[t]hat which is offered and alleged by the party proceeded
against in an action or suit . . . to diminish plaintiff’s cause of action or
defeat recovery.” Black’s Law Dictionary (6th ed). Thus, a defense is not
an action, i.e., a complaint or counterclaim, but something one files in
response to a complaint or a counterclaim to shield oneself from that
action. Although MCL 339.2412(1) prohibits certain persons from “bring-
[ing] or maintain[ing] an action,” it does not prohibit them from
defending themselves in an action brought against them. And one of the
ways by which a party may defend itself is to “diminish [an opponent’s]
cause of action” by way of a setoff or recoupment. Because nothing in the
law precludes an unlicensed builder from raising a setoff or recoupment
claim as a defense, I believe the Court of Appeals decision is in error.
The Court of Appeals decision deprives unlicensed builders of even
the most basic opportunity to defend themselves in a court of law and
opens the door to extraordinarily unfair exercises in gamesmanship by
those who might sue an unlicensed builder. For example, under the
court’s interpretation of MCL 339.2412(1), a landowner could knowingly
hire an unlicensed contractor to build a home and contract to pay him
$200,000. The builder completes the project after spending $150,000 in
labor and construction materials. Relying on the Court of Appeals
decision in this case, the owner may then claim that the builder failed to
properly perform part of the project, refuse to pay him, and seek
additional damages of $40,000 knowing that the builder would be wholly
unable to obtain compensation for the benefits conferred by his work or
even raise a setoff or recoupment defense to the additional claim. While
the former result may be required under the statute, see Stokes, supra at
675-677 (2002) (MARKMAN, J., concurring), I do not believe the latter
result is. I do not believe that the Legislature intended by this statute to
deprive the builder in the foregoing hypothetical scenario of $190,000
($150,000 in labor and construction materials and $40,000 in additional
damages sought by the owner) without affording him even a minimal
opportunity to defend himself by raising a setoff or recoupment defense.
“The statute removes an unlicensed contractor’s power to sue, not the
power to defend. [MCL 339.2412] was intended to protect the public as a
shield, not a sword.” Parker v McQuade Plumbing & Heating, Inc, 124
Mich App 469, 471 (1983).
CAVANAGH, J. I join the statement of Justice MARKMAN.
SCIOTTI V 36TH DISTRICT COURT, No. 134328. On order of the Court, leave
to appeal having been granted and the briefs and oral arguments of the
parties having been considered by the Court, we vacate our order of April
30, 2008. The application for leave to appeal the May 22, 2007, judgment
of the Court of Appeals is denied, because we are no longer persuaded
that the questions presented should be reviewed by this Court. Court of
Appeals Nos. 266160 and 267887.
KELLY, J. (concurring). I concur in the Court’s order denying defen-
dant’s application for leave to appeal. I write separately, however, to
respond to Justice MARKMAN’s somewhat conclusory assertions, which
omit material facts that otherwise demonstrate that plaintiff has sus-
tained his burden of proof in this case.
1144 482 MICHIGAN REPORTS
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff, a Caucasian male, began working for defendant 36th Dis-

trict Court in 1979 as a file clerk. He received two automatic promotions
in 1983, and in the same year, received a bachelor’s degree in manage-
ment from Wayne State University. Defendant offered plaintiff another
promotion in 1986, but plaintiff declined because it involved a pay
reduction. Plaintiff alleged that from that time forward, he regularly
applied for promotions but failed to receive one. In 1993, he filed a
discrimination suit against defendant and was thereafter offered a
promotion. According to plaintiff, since 1995, he has applied for eight
supervisory positions: probation supervisor in March 1998, March 1999,
and March 2002; central records supervisor in June 2002; three court
services supervisor positions in 2002; and a position in jury services in
July 2003. He was denied each position, leading to the instant reverse
race discrimination suit filed under the Civil Rights Act1 (CRA).
At trial, plaintiff alleged that all the individuals promoted ahead of him
were African-Americans. Specifically, he presented evidence that since 1999,
all 18 individuals promoted to open positions were African-Americans and
that, in 24 years, there was only one white supervisor of the probation
department. Additionally, he presented evidence that 13 of 14 supervisors in
the civil/real estate division were African-Americans and that all 14 super-
visors in the criminal/traffic department were African-Americans.
Plaintiff’s claims were tried before a jury. At the close of plaintiff’s
proofs, defendant moved for a directed verdict, and the trial judge took
the motion under advisement. While a ruling on the motion remained
pending, the jury found in favor of plaintiff, determining that race was
one of the motives or reasons that made a difference in the determination
to not promote plaintiff or that defendant had retaliated against plaintiff.
The jury awarded plaintiff $424,000, and the trial court subsequently
granted plaintiff’s motion for attorney fees. The trial judge denied
defendant’s motion for a directed verdict or judgment notwithstanding
the verdict (JNOV).
Defendant appealed, challenging the substantive rulings on liability
and the fee award. In an unpublished opinion per curiam, the Court of
Appeals affirmed defendant’s liability under the CRA, but reversed on
the retaliatory discharge claim, holding that plaintiff failed to produce
sufficient evidence to sustain the claim.
We initially granted leave to determine whether plaintiff produced
sufficient evidence in support of his discrimination claims.

II. ANALYSIS

A. LEGAL BACKGROUND

The CRA provides, in pertinent part:

1
MCL 37.2201 et seq.
 ACTIONS ON APPLICATIONS 1145
(1) An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit, discharge, or otherwise
discriminate against an individual with respect to employment,
compensation, or a term, condition or privilege of employment,
because of religion, race, color, national origin, age, sex, height,
weight, or marital status.[2]

Thus, the CRA clearly prohibits employers from discriminating on the

basis of race.
In Hazle v Ford Motor Co,3 this Court examined the law relative to
establishing a prima facie case of discrimination under the CRA. The
Court noted that, in some discrimination cases, a plaintiff is able to
produce direct evidence of racial bias. In those cases, a plaintiff can prove
unlawful discrimination in the same manner as a plaintiff would prove
any other case.4 In many cases, however, the Court recognized that there
is no direct evidence of impermissible bias. In such cases, in order to
survive a motion for summary disposition, a plaintiff must proceed
through the burden-shifting framework expounded in McDonnell Dou-
glas Corp v Green.5
Under McDonnell Douglas, a plaintiff must first offer a prima facie
case of discrimination. Thus, a plaintiff is required to present evidence
that (1) he belongs to a protected class; (2) he suffered an adverse
employment action; (3) he was qualified for the position; and (4) the job
was given to another person under circumstances giving rise to an
inference of unlawful discrimination.6 If a plaintiff establishes a prima
facie case of unlawful discrimination through circumstantial evidence,
the burden then shifts to the defendant-employer to articulate a legiti-
mate nondiscriminatory justification for its employment decision.7 In
order to survive a motion for summary disposition or a directed verdict,
a plaintiff need only create a question of material fact upon which
reasonable minds could differ regarding whether discrimination was a
motivating factor in the employer’s decision.8
Therefore, with respect to the McDonnell Douglas factors, plaintiff
was required to show first that he belongs to a protected class. Defendant
did not contest this showing. Second, plaintiff must show that he suffered
an adverse employment action. Again, defendant did not contest that the
decision not to promote plaintiff constitutes an adverse employment
action. Third, plaintiff must show that he was qualified for the positions
in question. Fourth, he must show that the job was given to another

2
MCL 37.2202(1)(a) (emphasis added).
3
Hazle v Ford Motor Co, 464 Mich 456 (2001).
4
Id. at 462.
5
Id., citing McDonnell Douglas Corp v Green, 411 US 792 (1973).
6
McDonnell Douglas, supra at 802.
7
Id.
8
Hazle, supra at 466.
1146 482 MICHIGAN REPORTS
person under circumstances giving rise to an inference of unlawful
discrimination. Consequently, the third and fourth elements of a prima
facie case of discrimination are the subject of this appeal.

B. APPLICATION

On the basis of the aforementioned framework for analyzing discrimi-

nation claims, I believe that plaintiff has presented sufficient evidence for
a reasonable jury to conclude that it is more likely than not that
defendant’s failure to promote plaintiff included an element of racial
discrimination.
1. 1998/1999 Probation Supervisor Position
Plaintiff concedes that he cannot establish a prima facie case of
discrimination for these positions.
2. May 2002 Probation Supervisor Position
Plaintiff alleged that he was qualified for this position because he had
the requisite bachelor’s degree. He also had the required two to five years
of experience working as a probation officer. Plaintiff further alleged that
he received higher scores in his interview than the chosen candidate.
Plaintiff also offered evidence that the chosen candidate was selected
before the interview process began.
3. June 2002 Central Records Supervisor Position
Plaintiff alleged that he was qualified for this position because he had
the requisite bachelor’s degree. He had also worked with court records
throughout his lengthy tenure with defendant. Defendant even granted
plaintiff an interview for the position, indicating that defendant believed
plaintiff met the minimum qualifications for the position. Plaintiff
further alleged that the chosen candidate received dismal performance
reviews and that he failed to properly answer questions on a computer as
a required part of the interview process, yet he was hired nonetheless.
4. 2002 Clerical Services II Position
Plaintiff alleged, and defendant does not contest, that plaintiff met
the education and work experience requirements for the position. Defen-
dant contends that plaintiff was unqualified because he was not a
member of the Government Administrators Association (GAA). However,
the chosen candidate, the only GAA member who applied, was also
unqualified because she did not meet the education requirement at the
time of the hiring. Accordingly, plaintiff alleged that the position should
have been opened to non-GAA members, including plaintiff, as was
customary when GAA members do not apply for a position.
5. 2002 Court Services II Positions
Plaintiff alleged that he met the educational and work experience
requirements for the positions and was therefore qualified. The candi-
date chosen for one of the positions did not work for defendant before
being hired and therefore did not meet the requirement that the
applicant have five to eight years of experience in court room operations.
She also lacked seniority with the court. The candidate chosen for the
second position also lacked the minimum work experience within the
court and was thus unqualified, but was selected nonetheless.
 ACTIONS ON APPLICATIONS 1147
6. 2003 Jury Services Supervisor
Plaintiff concedes that he cannot establish a prima facie case of
discrimination for this position.
But for the probation supervisor and jury services supervisor posi-
tions, plaintiff alleged that he was qualified for the relevant positions and
that the jobs were given to other candidates under circumstances in
which a reasonable juror could find gave rise to an inference of discrimi-
nation. Thus, the burden shifted to defendant to articulate a legitimate
nondiscriminatory reason for its hiring decisions. Defendant did so in an
attempt to rebut each of plaintiff’s claims. Accordingly, the jury was left
with a question of material fact on which reasonable minds could differ
regarding whether discrimination was a motivating factor in defendant’s
decisions.
Having established a prima facie case, the question therefore becomes
whether the trial court should have granted a directed verdict or JNOV
to defendant. Directed verdicts and JNOVs are granted only in limited
circumstances.9 This Court reviews motions for a directed verdict or
JNOV by drawing all legitimate factual inferences in the light most
favorable to the nonmoving party.10 Such motions may be granted on
some or all of the issues presented if a verdict is against the great weight
of the evidence.11 A verdict is against the great weight of the evidence if
the evidence preponderates so heavily against the verdict that it would be
a miscarriage of justice to allow the verdict to stand.12 If the evidence
conflicts, the issue of credibility ordinarily should be left to the trier of
fact.13
Here, viewing the evidence in a light most favorable to plaintiff and
granting every reasonable inference to plaintiff, defendant has failed to
establish a right to relief. As alleged, plaintiff set forth a prima facie case,
which defendant then rebutted with claims that its hiring decisions were
nondiscriminatory. This created a question of fact on which reasonable
minds could differ. The jury rendered a verdict for plaintiff, and I believe
the verdict must stand. A verdict should not be overturned if there is an
interpretation of the evidence that provides a logical explanation for the
jury’s findings.14 I believe that the evidence can be interpreted so as to
uphold the jury’s findings.15

9
See MCR 2.611(A).
10
Wilkinson v Lee, 463 Mich 388, 391 (2000).
11
MCR 2.611(A)(1)(e).
12
People v Musser, 259 Mich App 215, 218-219 (2003).
6
MCL 780.766(2).
14
Granger v Fruehauf Corp, 429 Mich 1, 7 (1987).
15
In his dissenting statement, Justice MARKMAN sets forth defendant’s
arguments about why its hiring decisions were nondiscriminatory. How-
ever, Justice MARKMAN ignores the fact that these arguments, used to
rebut plaintiff’s prima facie claim that defendant’s reasons were a
pretext for discrimination, merely created a question of fact on which
1148 482 MICHIGAN REPORTS
III. CONCLUSION

I concur in the Court’s decision to deny defendant’s application for

leave to appeal. Plaintiff established a prima facie case of discrimination
and defendant, although offering nondiscriminatory reasons for its hiring
decisions, failed to persuade the jury that it did not discriminate against
plaintiff. Accordingly, defendant is not entitled to relief, and the jury’s
verdict must stand.
YOUNG, J. (concurring). I concur in the Court’s decision to deny the
application for leave to appeal because the defendant is not entitled to the
relief it seeks. The trial court did not abuse its discretion by admitting the
lay opinion testimony of the defendant’s former human resources admin-
istrator, and the defendant did not request any limiting instruction
concerning her testimony. The defendant also acquiesced in the jury’s
consideration of the plaintiff’s “statistical evidence.”1 Although the

reasonable minds could differ. Because the jury, not Justice MARKMAN, was
the trier of fact in this case, I believe that the jury’s verdict must stand.
Indeed, the facts disfavoring plaintiff’s discrimination claims, which
Justice MARKMAN references, merely support my position that reasonable
minds could differ in interpreting the evidence presented at trial. Justice
MARKMAN is free to credit the testimony of whomever he wishes. However,
his role as an appellate judge precludes him from substituting his
interpretation of the evidence for that of the jury.
Justice MARKMAN also asserts that the Court of Appeals erred in
relying on plaintiff’s “statistical” evidence. This assertion is somewhat
tangential to the dispositive subject of this appeal—whether plaintiff set
forth a prima facie case of discrimination. Nonetheless, plaintiff did not
rely solely on “statistical” evidence in support of his claim. Rather,
plaintiff introduced testimony of a coworker that defendant made hiring
decisions without considering all applicants, offered evidence that he was
treated poorly by defendant’s human resources department, and evi-
dence that he was more qualified than chosen candidates and was denied
promotions despite these qualifications. Justice MARKMAN dismisses this
evidence as “wholly irrelevant.” While he may question the credibility of
the evidence, the jury apparently did not. It is worth repeating that this
Court’s mere disagreement with the factual findings of the jury is not
grounds for granting a motion for a directed verdict or JNOV. And, even
if the statistical evidence were insufficient standing alone, plaintiff
introduced sufficient other evidence of discrimination from which a
reasonable mind could infer an element of discrimination.
1
The plaintiff submitted evidence indicating that 13 of the 14 super-
visory positions in the civil and real estate divisions were held by
African-Americans, that all 14 supervisory positions in the criminal and
traffic divisions were held by African-Americans, and that all 18 super-
visory positions filled since 1999 were filled with African-Americans.
 ACTIONS ON APPLICATIONS 1149
defendant may have had a legal basis for excluding the “statistical
evidence” as incompetent to establish an inference of racial discrimina-
tion,2 such evidence was properly before the jury in the absence of an
objection by the defendant. Finally, in agreeing on a general verdict, the
defendant waived any right to have the jury individually assess each
contested promotional decision. Therefore, the jury did not need to
specify which of the defendant’s promotional decisions violated the ban
on racial discrimination in MCL 37.2202(1)(a).
Given the evidence properly before it, a reasonable jury could have
found that at least one of the defendant’s adverse promotional decisions
violated the ban on racial discrimination in MCL 37.2202(1)(a). Accord-
ingly, I concur in this Court’s decision to deny the application for leave to
appeal. The courts below correctly denied the defendant’s motion for a
judgment notwithstanding the verdict.
TAYLOR, C.J., and CORRIGAN, J. We join the statement of Justice YOUNG.
MARKMAN, J. (dissenting). In this “reverse discrimination” case, the
jury awarded plaintiff $424,000. The trial court denied defendant’s
motion for a judgment notwithstanding the verdict (JNOV), and the
Court of Appeals affirmed. This Court then granted leave to appeal.
In Lind v Battle Creek, 470 Mich 230 (2004), we held that a reverse
discrimination plaintiff must satisfy the same standards required of
other discrimination plaintiffs. In Hazle v Ford Motor Co, 464 Mich 456,
462 (2001), we held that if there is no direct evidence of discrimination,
the plaintiff may “ ‘present a rebuttable prima facie case on the basis of
proofs from which a factfinder could infer that the plaintiff was the victim
of unlawful discrimination.’ ” (Citation omitted; emphasis in the origi-
nal.) In order to establish a prima facie case of discrimination, the
plaintiff must present evidence that

(1) [he or] she belongs to a protected class, (2) [he or] she suffered
an adverse employment action, (3) [he or] she was qualified for the
position, and (4) the job was given to another person under
circumstances giving rise to an inference of unlawful discrimina-
tion. [Id. at 463.]

“[O]nce a plaintiff establishes a prima facie case of discrimination-

, . . . the defendant has the burden of producing evidence that its employ-
ment actions were taken for a legitimate, nondiscriminatory reason.” Id.
at 464. “If the employer makes such an articulation, the presumption
created by the . . . prima facie case drops away.” Id. at 465. “At that
point, . . . the plaintiff must demonstrate that the evidence in the case,

2
The data that the plaintiff introduced fails to indicate the racial
makeup of the applicant pool for individual supervisor positions that the
defendant filled. Absent that point of comparison, the data itself has little
probative value in determining whether the defendant discriminated
against the plaintiff on account of his race. See Pippin v Burlington
Resources Oil & Gas Co, 440 F3d 1186, 1197-1198 (CA 10, 2006).
1150 482 MICHIGAN REPORTS
when construed in the plaintiff’s favor, is ‘sufficient to permit a reason-
able trier of fact to conclude that discrimination was a motivating factor
for the adverse action taken by the employer toward the plaintiff.’ ” Id.
(citation omitted). In other words, the plaintiff must demonstrate that
the employer’s nondiscriminatory reason was a “ ‘pretext for [unlawful]
discrimination.’ ” Id. at 466 (citation omitted).
In the instant case, plaintiff has failed, in my judgment, to establish a
prima facie case of discrimination. Even assuming that the first three
elements of Hazle are satisfied, plaintiff has presented absolutely no
evidence to establish that the positions were given to other persons
“under circumstances giving rise to an inference of unlawful discrimina-
tion.” Id. at 463. Even assuming that plaintiff had established a prima
facie case of discrimination, defendant has produced “evidence that its
employment actions were taken for a legitimate, nondiscriminatory
reason.” Id. at 464. In response, the plaintiff has failed to demonstrate
that defendant’s nondiscriminatory reasons were a mere “ ‘pretext for
[unlawful] discrimination.’ ” Id. at 466 (citation omitted).1
Between 1998 and 2003, plaintiff unsuccessfully applied for eight
different supervisory positions. He is Caucasian and all of the successful
candidates were African-Americans.
(1) In 1998, defendant posted an opening for a Probation Supervisor.
This position was not filled in 1998. Plaintiff does not argue that
defendant’s failure to fill this position in 1998 was the result of racial
discrimination.
(2) The Probation Supervisor position was re-posted in 1999, and the
position was filled by somebody who had 10 more years of experience as
a probation officer. Plaintiff now concedes that he cannot prove discrimi-
nation with regards to this promotion decision.
(3) The second Probation Supervisor position was filled by a person
who had three more years of experience as a probation officer, two more
years of experience working for the court, had the preferred bachelor’s
degree in psychology, social work, or a related field, and had been the
interim probation supervisor for the preceding seven months. In addi-
tion, this person appeared for her interview with a portfolio of her
accomplishments and an action plan for improvements in the probation
department, while plaintiff brought nothing like this to his interview. In
fact, when applying for this position, plaintiff submitted a two-page
resume accompanied by a letter that merely stated, “I am qualified for
this position because I have 25 years of court experience.”2

1
Even assuming that plaintiff is entitled to a presumption of discrimi-
nation, the Court of Appeals, contrary to the test set forth in Hazle, failed
to even consider whether defendant rebutted this presumption.
2
Justice KELLY’s concurrence: (a) relies on the fact that plaintiff had a
bachelor’s degree, but ignores the fact that the person who received the
promotion had the preferred bachelor’s degree in “psychology, social
work, counseling, or a related field”; (b) relies on the fact that plaintiff
had seven years of experience working as a probation officer, but ignores
 ACTIONS ON APPLICATIONS 1151
(4) The Central Records Supervisor position was filled by a person
who had worked as a clerk in the records department for four years and
as a senior clerk in that department for one year. Plaintiff had no
experience in records. In addition, the person who was hired had made
proposals for procedural changes in the records department that were
later implemented by the records department, he had prepared for his
interview by researching court records storage techniques used in other
states and by drafting a mission statement for the records department,
and he presented this information to the interview panel in what was
viewed as a professional manner using a display board.3
(5) Plaintiff was not eligible for the Clerical Services Supervisor II
position because he was not a member of the Government Administrators
Association (GAA), as only supervisors are members of the GAA. Plaintiff
had the opportunity to become a member of the GAA, but turned this
down because it would have involved a pay reduction. Plaintiff admitted
that other applicants, including African-Americans, who were not GAA
members were not eligible for this promotion either.4

the fact that the person who received the promotion had 10 years of
experience working as a probation officer; and (c) relies on the fact that
plaintiff received higher scores in his interview, but ignores the fact that
this higher score was received in 1999, three years before the 2002
promotion decision, and that, in 2002, the person who received the
promotion earned an interview score that was almost twice as high as
plaintiff’s.
3
The concurrence: (a) relies on the fact that plaintiff had worked with
court records, but ignores the fact that the person who received the
promotion worked as a clerk in the records department for four years and
as a senior clerk in that department for one year and that plaintiff had
never worked in the records department; and (b) relies on the fact that
the person who received the promotion had received negative perfor-
mance reviews, but ignores the fact that these negative reviews occurred
several years before the pertinent promotion decision and that in the
meantime this person had proposed changes in the records department
that were subsequently implemented by the department and that he was
especially well prepared for his interview.
4
The concurrence: (a) states that the person who received this promo-
tion did not have a bachelor’s degree at the time of hiring, while failing
to acknowledge that defendant’s human resource generalist testified that
the person who received the promotion did have a bachelor’s degree; (b)
fails to recognize that plaintiff’s only evidence that the person who
received the promotion did not have a bachelor’s degree in 2002 was that
in 2000 she indicated that she was in her second year in college, yet does
not explain why this means that she did not have her bachelor’s degree
in 2002; and (c) fails to acknowledge that plaintiff admits that there is no
question that this person currently has a bachelor’s degree.
1152 482 MICHIGAN REPORTS
(6) Plaintiff was also not eligible for the Jury Services Supervisor
position because he was not a member of the GAA. Plaintiff now concedes
that he cannot prove discrimination with regard to the Jury Services
Supervisor position.
(7) The first Court Services Supervisor II position was filled by
somebody who had been the Assistant to the Chief Administrative Officer
for the City of Detroit, had six years of experience with defendant as the
in-house counsel coordinator, and had two more years of experience
working for defendant.5
(8) The second Court Services Supervisor II position was filled by
somebody with over 20 years of management experience, a bachelor’s
degree, and excellent references. Plaintiff has no management experi-
ence.6
For the above reasons, I believe that defendant has presented a
race-neutral rationale for each of its decisions. In response, plaintiff has
failed to provide any evidence that these reasons were merely a pretext
for discrimination.
Moreover, the Court of Appeals seriously erred in relying on plaintiff’s
supposed “statistical” evidence of racial discrimination. Plaintiff here has
merely submitted evidence that most of defendant’s supervisors are
African-Americans, a not particularly surprising result in light of the
racial composition of the overall 36th District Court work force and of the
surrounding community served by that court. Most tellingly, plaintiff has
submitted no evidence regarding how many non-African-Americans
applied for any of these supervisory positions. Without knowing whether
there were non-African-Americans who applied for a given position, the
fact that an African-American received the position can hardly be viewed
as evidence of discrimination. To view plaintiff’s “statistical” evidence as
relevant under these circumstances is to accept the premise that employ-
ment numbers ought to reflect certain racial proportions. I do not accept
this premise in minority discrimination lawsuits, and I do not accept this
in “reverse discrimination” lawsuits. Absent direct or circumstantial
evidence, it is simply impossible to determine whether an employer has
engaged in unlawful discrimination against either African-Americans or
non-African-Americans without at least knowing how many African-
Americans and how many non-African-Americans applied for a particular
position. One simply cannot infer racial discrimination from the mere
fact that a disproportionate number of defendant’s supervisors are of one

5
The concurrence states that the person who received the position was
“unqualified,” but completely ignores the above-described qualifications
of this person.
6
The concurrence relies on the fact that the person who received the
position had no experience in courtroom operations and no seniority with
the court, but ignores the fact that while plaintiff had no management
experience of any kind, the person who received the position had over 20
years of management experience.
 ACTIONS ON APPLICATIONS 1153
race or another.7
The concurrence states that this issue is “tangential to the dispositive
subject of this appeal—whether plaintiff set forth a prima facie case of
discrimination.” Ante at 1148 n 15. However, contrary to its contention,
the issue here is not merely whether plaintiff set forth a prima facie case
of discrimination. Although the concurrence admits that defendant
presented a race-neutral rationale for each of its decisions, it fails to
recognize the legal significance of this assertion. That is, it fails to
recognize that once the defendant presents nondiscriminatory reasons
for its decisions, “the presumption of discrimination created by plaintiff’s
prima facie case dropped away, and the burden of production returned to
plaintiff to show the existence of evidence ‘sufficient to permit a
reasonable trier of fact to conclude that discrimination was a motivating
factor for the adverse action taken by the employer toward the plain-
tiff.’ ” Hazle, supra at 473 (citation omitted). The Court of Appeals
concluded that plaintiff satisfied this burden because plaintiff presented
evidence that he was more qualified than some of the individuals who
were hired to fill the positions that he sought and because plaintiff
presented “statistical” evidence to support his claim of discrimination. As
discussed earlier, I do not believe that plaintiff presented evidence that he
was more qualified than the individuals who secured the positions for
which plaintiff applied. Therefore, whether the Court of Appeals erred in
relying on plaintiff’s “statistical” evidence is not “tangential to the
dispositive subject of this appeal.” Rather, it is central.
Because plaintiff has presented no evidence of racial discrimination,
or even any evidence that one could use to infer that plaintiff was the
victim of racial discrimination, I would reverse.

7
That defendant did not affirmatively object to the admission of this
“statistical” evidence is not particularly relevant because the issue here
is not whether the evidence was admissible; rather, it is whether the
Court of Appeals erred in relying on this evidence to justify its affirmance
of the trial court’s denial of defendant’s JNOV motion.
The concurrence states that “even if the statistical evidence were
insufficient standing alone, plaintiff introduced sufficient other evidence
of discrimination.” Ante at 1148 n 15. This “other evidence” is appar-
ently the testimony of Nancy Cook, a former coworker. However, Cook
admittedly played no role in any promotion decision and her beliefs about
defendant’s exercises in racial discrimination were based on nothing
other than her own speculations. Moreover, Cook did not work for
defendant during any of the promotion decisions that are at issue here.
Although she worked for defendant at the time of the first probation
supervisor promotion decision, plaintiff now concedes that he is not able
to establish a prima facie case of discrimination with regard to this
promotion decision. For these reasons, Cook’s testimony is wholly irrel-
evant.
1154 482 MICHIGAN REPORTS
PEOPLE V ZENTZ, No. 136690; Court of Appeals 285118.
CAVANAGH, J. (concurring). It appears from the record before us that,
on resentencing, the trial court may not have complied with the order of
the Court of Appeals. There was an agreement under People v Cobbs, 443
Mich 276 (1993), for a minimum sentence no greater than 171 months.
The Court of Appeals vacated the defendant’s minimum sentence of 225
months and remanded with directions to either permit the defendant to
withdraw her plea or to resentence her pursuant to the agreement. The
June 18, 2008, judgment of sentence indicates that, at resentencing, the
court again sentenced the defendant to a 225-month minimum term.
However, the instant appeal does not arise from the June 18, 2008,
judgment and we do not have before us transcripts of the proceedings on
remand. Because this case is not properly before us, I would decline to
review it now. Any remedy in this case is properly pursued by application
for leave to appeal in the Court of Appeals from the trial court’s June 18,
2008, judgment of sentence.
KELLY, J. I join the statement of Justice CAVANAGH.
PEOPLE V KRAMP, No. 137002; Court of Appeals No. 278762.
OVERBAY V BOTSFORD GENERAL HOSPITAL, No. 137807; Court of Appeals
No. 287941.

Summary Disposition December 23, 2008:

KING V MCPHERSON HOSPITAL, No. 137073. Pursuant to MCR 7.302(G)(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. 284436.

Leave to Appeal Denied December 23, 2008:

PEOPLE V CATO, No. 136425; Court of Appeals No. 266323.

PEOPLE V CRAIG GREEN, No. 136461; Court of Appeals No. 283549.
In re ESTATE OF STANOWSKI (STANOWSKI V STANOWSKI), No. 136532; Court
of Appeals No. 273718.
MARKMAN, J. (concurring). Although I agree that a denial of leave to
appeal is appropriate, the existence of what appears to be a written
acknowledgment by Lillian Mamo that the value of the Judd Road
property would be deducted from her share of the estate compels me to
address the trial court’s application of MCL 700.2608.
The Estates and Protected Individuals Code (EPIC), MCL 700.1101 et
seq., went into effect on April 1, 2000. MCL 700.8101(1). EPIC applies
not only to all governing instruments executed by decedents who die after
that date, but also to all proceedings currently pending in court or
commenced after that date. MCL 700.8101(2)(a) and (b). Because this
action was pending on April 1, 2000, EPIC was applicable and it was not
error for the trial court to apply MCL 700.2608.
 ACTIONS ON APPLICATIONS 1155
Under MCL 700.2608(1)(c):

Property a testator gave in his or her lifetime to a person is

treated as a satisfaction of a devise in whole or in part only if any
of the following are true:

***

(c) the devisee acknowledges in writing that the gift is in

satisfaction of the devise or that its value is to be deducted from
the value of the devise.

Thus, in light of the written acknowledgment, it would appear that

the trial court erred by concluding that the value of the Judd Road
property was not to be deducted from Lillian’s devise. However, this is
not petitioner’s argument. Instead, he argues that EPIC is not applicable.
Indeed, if we were to agree with petitioner, this Court could grant him no
relief. Before EPIC, MCL 700.139 governed this issue and it provided:

Property which a testator gave in his lifetime to a devisee shall

be treated as a satisfaction of the devise in whole or in part, if the
will provides for deduction of the lifetime gift. [Emphasis added.]

The will in this case had no such provision, and an advancement could
not be proven in any way other than “where the testator’s will contains
a provision to that effect.” In re Hall Estate, 180 Mich App 389, 393
(1989). Under this precedent, Lillian’s written acknowledgment is of no
moment and the result would remain the same. Moreover, even though
EPIC is applicable, the trial court was permitted to apply the prior law
“in the interest of justice.” MCL 700.8101(2)(b). Where a determination
that the Judd Road property was an advancement would not only
completely disinherit Lillian, but result in her having to make a signifi-
cant repayment to her mother’s estate, I do not believe that the trial
court abused its discretion by concluding that such an application was
clearly “in the interests of justice.” Therefore, I believe that the trial
court’s misapplication of MCL 700.2608 was harmless and accordingly
concur in the decision to deny leave to appeal.
PEOPLE V LEONARD TURNER, No. 136614. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 282050.
MOREFIELD V GRAND TRUNK WESTERN RAILROAD, INC, No. 136735; Court of
Appeals No. 275767.
CAVANAGH and KELLY, JJ. We would grant leave to appeal.
OLIVER/HATCHER CONSTRUCTION AND DEVELOPMENT, INC V SHAIN PARK
ASSOCIATES, No. 136803; Court of Appeals No. 275500.
1156 482 MICHIGAN REPORTS
STEARNS V PRO-TECH ENVIRONMENTAL & CONSTRUCTION SERVICES, INC, No.
137004; Court of Appeals No. 270315.
JONES V WINKLER, No. 137014; Court of Appeals No. 278276.
KING V MCPHERSON HOSPITAL, No. 137071; Court of Appeals No. 283271.
SCHILS V DEPARTMENT OF LABOR & ECONOMIC GROWTH, Nos. 137093 and
137094. Costs of $375 are assessed against the plaintiff in favor of the
defendant under MCR 7.316(D)(1) for filing a vexatious appeal. The plain-
tiff, Michael Schils, is barred from submitting additional filings in this Court
in non-criminal matters until he offers proof that he has paid all outstanding
court-imposed sanctions. Court of Appeals Nos. 272650 and 273804.
CITY OF ROCKFORD V 63RD DISTRICT COURT, No. 137458; Court of Appeals
No. 287501.

Reconsiderations Denied December 23, 2008:

TACCO FALCON POINT, INC V CLAPPER, No. 133430. Leave to appeal denied
at 481 Mich 886. Court of Appeals No. 271525.
CAVANAGH and MARKMAN, JJ. We would grant reconsideration and, on
reconsideration, would remand this case to the trial court for the reasons
stated in the Court of Appeals dissenting opinion.
KELLY, J. I would grant reconsideration.
PEOPLE V CHAMBERS, No. 135736. Leave to appeal denied at 482 Mich
980. Court of Appeals No. 277828.
PEOPLE V KORAS, No. 136026. Leave to appeal denied at 482 Mich 972.
Court of Appeals No. 282578.
PEOPLE V COLLINS, No. 136123. Leave to appeal denied at 482 Mich
1006. Court of Appeals No. 279645.
KELLY, J. I would grant reconsideration.
SMILEY V GROSSE POINTE WAR MEMORIAL ASSOCIATION, No. 136172. Leave
to appeal denied at 482 Mich 916. Court of Appeals No. 275937.
PEOPLE V SCOTT, No. 136481. Leave to appeal denied at 482 Mich 989.
Court of Appeals No. 279874.
JACOBSON V NORFOLK DEVELOPMENT CORPORATION, Nos. 136586 and
136588. Leave to appeal denied at 482 Mich 976. Court of Appeals Nos.
281587 and 283361.
PEOPLE V KIRCHER, No. 137426. Leave to appeal denied at 482 Mich
1044. Court of Appeals No. 287977.

Summary Dispositions December 29, 2008:

PEOPLE V SHAHIDEH, No. 135495. On order of the Court, leave to appeal

having been granted and the briefs and oral arguments of the parties
 ACTIONS ON APPLICATIONS 1157
having been considered by the Court, we reverse the October 25, 2007,
judgment of the Court of Appeals because the defendant waived his right
to appellate relief by abandoning his insanity defense. The defendant
sought a court order permitting a privately retained psychologist to
examine him while he was in jail for the purpose of evaluating the merits
of an insanity defense. The trial court denied the defendant’s motion,
holding that the defendant must first file a notice of intent to assert an
insanity defense pursuant to MCL 768.20a(1) before he could obtain an
evaluation by his privately retained expert. The Court of Appeals
reversed, holding that MCL 768.20a did not apply because “only a
defendant who ‘plan[s]’ or ‘intends’ to raise the insanity defense at trial
must comply with the procedures set forth in MCL 768.20a.” People v
Shahideh, 277 Mich App 111, 116 (2007), quoting Random House
Webster’s College Dictionary (1997) for the definition of “propose.”
The trial court’s ruling did not prohibit the defendant from pursuing
an insanity defense. The defendant was fully aware that he could file a §
20a(1) notice and continue pursuing an insanity defense. Defense counsel
gathered sufficient information through his investigation to form a
good-faith basis for filing a notice of intent under MCL 768.20a(1).
Instead, the defendant elected to abandon an insanity defense in favor of
a mitigation defense. “ ‘[W]aiver is the “intentional relinquishment or
abandonment of a known right.” ’ ” People v Carines, 460 Mich 750, 762
n 7, quoting United States v Olano, 507 US 725, 733 (1993). “ ‘One who
waives his rights under a rule may not then seek appellate review of a
claimed deprivation of those rights, for his waiver has extinguished any
error.’ ” People v Carter, 462 Mich 206, 215 (2000), quoting United States
v Griffin, 84 F3d 912, 924 (CA 7, 1996). Thus, regardless of whether the
trial court erred in holding that MCL 768.20a applied, the defendant
abandoned the insanity defense and cannot obtain appellate relief
because his chosen defense strategy failed. “Counsel may not harbor
error as an appellate parachute.” Carter, supra at 214. Accordingly, we
reinstate the defendant’s conviction. Reported below: 277 Mich App 111.
TAYLOR, C.J. (concurring). I have signed the order reversing the Court
of Appeals opinion and ruling that defendant waived the issue whether
any error occurred. I write separately because the Court of Appeals
opinion is published and I wish to explain why I conclude that the Court
of Appeals analysis of several issues is erroneous.
The substantive issue in this case is whether an incarcerated defen-
dant has a right to a court order requiring a county sheriff to allow a
privately retained psychologist to evaluate the defendant well beyond
normal jail visitation hours so defense counsel can decide whether to file
a notice of intent under MCL 768.20a to present evidence that the
defendant was insane when the crime was committed. The trial court
denied defendant’s motion for such an order, ruling that under the
statute defendant would be entitled to an independent evaluation only
after an examination by the Center for Forensic Psychiatry. The Court of
Appeals, however, held that the statute did not apply to defense counsel’s
request. It further concluded that the trial court’s denial of the request
violated defendant’s constitutional right to the effective assistance of
counsel.
1158 482 MICHIGAN REPORTS
I disagree with the Court of Appeals and would hold that an
incarcerated defendant is not entitled to a court order requiring the
sheriff to make the defendant available in the jail for a period beyond that
allowed by existing jail visitation policies so that the defendant may be
evaluated by a psychologist in order to help defense counsel decide
whether a notice of intent under MCL 768.20a should be filed. An
incarcerated defendant has no right to an independent evaluation under
MCL 768.20a until a notice of intent has been filed, and then only after
the defendant is first examined at the forensic center. I also would hold
that the denial of defendant’s motion did not violate defendant’s consti-
tutional right to the effective assistance of counsel.

I. FACTS AND PROCEEDINGS BELOW

Defendant was charged with first-degree murder, MCL 750.316(1),

after he confessed to killing his girlfriend, who was found bludgeoned and
stabbed to death. He was held without bond pending trial. While awaiting
trial, his privately retained attorney moved for a court order to permit a
privately retained psychologist to evaluate defendant in the jail to
determine whether it would be appropriate to pursue an insanity defense
at trial. Defense counsel explained that a court order was necessary
because such an evaluation would take more time than is allowed for
visits at the jail.
The prosecutor’s office opposed the motion but offered to stipulate to
a referral to the forensic center for an insanity examination pursuant to
MCL 768.20a. Defense counsel responded that, although defendant had
been diagnosed as suffering from bipolar disorder, and had previously
been prescribed Prozac, Xanax, and Ritalin, he did not have a basis for
filing a notice of insanity defense. Rather, he only had enough informa-
tion to further investigate a possible insanity defense.
The trial court denied defendant’s motion, ruling that MCL 768.20a
was applicable and that defendant could only obtain an independent
psychiatric evaluation after filing the statutory notice of intent, and after
he had been examined at the forensic center. Defense counsel did not file
an interlocutory appeal. The case proceeded to trial with the prosecution
contending that the killing had been premeditated and with defense
counsel arguing that defendant’s actions had been impulsive, not pre-
meditated. Defense counsel specifically told the jury that defendant was
“not claiming temporary insanity.”
During its deliberations, the jury sent a message to the court asking
whether defendant would have been able to propose a defense of
temporary insanity. The trial court advised the jury to base its decision on
the evidence that had been introduced during the trial and on the law as
instructed. Thereafter, the jury found defendant guilty of first-degree
murder.
Defendant appealed in the Court of Appeals, raising only one issue:
whether the trial court’s denial of his motion to permit a psychologist to
 ACTIONS ON APPLICATIONS 1159
have access to him in the jail for an independent psychological evaluation
denied defendant his statutory1 and constitutional rights.
The Court of Appeals majority concluded that the trial court had
erred and remanded the case for further proceedings.2 In particular, the
Court of Appeals held that MCL 768.20a did not apply because a mere
request to investigate and examine the viability or feasibility of a
potential insanity defense is not sufficient to trigger the statute. The
panel also held that the trial court’s denial of defendant’s motion had
violated defendant’s constitutional right to the effective assistance of
counsel because it had deprived defense counsel of the opportunity to
investigate a potential insanity defense.
The dissenting judge, however, agreed with the trial court that MCL
768.20a did apply and that defendant had no right to an independent
psychological evaluation before giving notice of an insanity defense and
being examined at the forensic center. The dissenter further indicated
that, even if the statute did not control, defendant was not deprived of the
right to pursue a defense or to have his own expert evaluate his mental
condition. This was because defendant’s right to pursue an insanity
defense would have been satisfied, and he could have obtained an
independent evaluation, if he had merely filed a notice of intent pursuant
to MCL 768.20a.
The prosecution filed an application for leave to appeal in this Court.
We granted leave to appeal and asked the parties to brief

(a) whether MCL 768.20a governs a request by an incarcerated

defendant for an independent psychiatric evaluation to determine
whether an insanity defense may be available where no notice of
intention to assert an insanity defense has been filed; (b) if the
statute governs, whether the subsections of MCL 768.20a are to be
construed seriatim, such that an independent psychiatric evalua-
tion may not be requested under subsection 3 without first
complying with subsections 1 and 2; and, (c) if the statute does not
apply, whether the defendant’s constitutional rights were violated
by the trial court’s decision to deny access to the defendant for an
independent psychiatric evaluation while he was in jail.[3]

II. STANDARD OF REVIEW

Whether MCL 768.20a applied is a question of statutory interpreta-

tion. We review de novo questions of statutory interpretation. People v
Davis, 468 Mich 77, 79 (2003). Similarly, we review de novo questions of
constitutional law. People v LeBlanc, 465 Mich 575, 579 (2002).

1
On appeal in this Court, defendant has dropped any argument that he
had a statutory right to an independent evaluation.
2
People v Shahideh, 277 Mich App 111 (2007).
3
People v Shahideh, 480 Mich 1195 (2008).
1160 482 MICHIGAN REPORTS
III. PRINCIPLES OF STATUTORY CONSTRUCTION

When interpreting a statute, the Court’s primary goal is to give effect

to the intent of the Legislature. Brown v Detroit Mayor, 478 Mich 589,
593 (2007). The first step is to review the language of the statute. Id. If
the statute is unambiguous on its face, we presume that the Legislature
intended the meaning expressed, and judicial construction is neither
required nor permissible. Id. It is also the case that “when construing a
statute, a court must read it as a whole.” Apsey v Mem Hosp, 477 Mich
120, 130 (2007). Specifically, to discover legislative intent, “the entire act
must be read, and the interpretation to be given to a particular word in
one section arrived at after due consideration of every other section so as
to produce, if possible, a harmonious and consistent enactment as a
whole.” Grand Rapids v Crocker, 219 Mich 178, 182-183 (1922). See also
Macomb Co Prosecutor v Murphy, 464 Mich 149, 159 (2001) (provisions
must be read in the context of the entire statute so as to produce a
harmonious whole). Likewise, subsections of a statute are not to be read
discretely, but as part of a whole. Lansing Mayor v Pub Service Comm,
470 Mich 154, 167-168 (2004).
An undefined statutory term or phrase must be accorded its plain and
ordinary meaning. MCL 8.3a;4 People v Thompson, 477 Mich 146, 151
(2007).5 A lay dictionary may be consulted to define a common word or
phrase that lacks a unique legal meaning. Id. at 151-152.

IV. THE INSANITY DEFENSE

A. HISTORICAL BACKGROUND

Before 1975, the test for determining legal insanity in Michigan was
controlled by People v Durfee, 62 Mich 487 (1886). As was explained in
People v Martin, 386 Mich 407, 418 (1971), the “salient elements” of the
Durfee test were: “1) whether defendant knew what he was doing was
right or wrong; and 2) if he did, did he have the power, the will power, to
resist doing the wrongful act?” If a defendant was found not guilty by
reason of insanity, by statute, he or she was automatically committed for

4
MCL 8.3a provides:

All words and phrases shall be construed and understood

according to the common and approved usage of the language; but
technical words and phrases, and such as may have acquired a
peculiar and appropriate meaning in the law, shall be construed
and understood according to such peculiar and appropriate mean-
ing.
5
See also MCL 750.2, which provides in part that the provisions of the
Michigan Penal Code “shall be construed according to the fair import of
their terms, to promote justice and to effect the objects of the law.”
 ACTIONS ON APPLICATIONS 1161
an indeterminate period to the Department of Mental Health for treat-
ment in an appropriate state hospital. People v McQuillan, 392 Mich 511,
518 n 1, 519 (1974).
However, in 1974 this Court found the automatic-commitment statute
unconstitutional. The McQuillan Court ordered that all previously
committed “not guilty by reason of insanity defendants” were to be
evaluated and released if they did not qualify for civil commitment.
Thereafter, approximately 150 of the 270 persons6 who had been com-
mitted after having been found not guilty by reason of insanity, whom
professionals had determined to be presently sane under McQuillan,
“were released from institutions, with tragic results. Two of the released
persons soon committed violent crimes.”7
Also, in 1974, a report was issued suggesting that the insanity verdict
had been misused in many cases. As the Court explained:

A study by the Center for Forensic Psychiatry in September of

1974 indicated that of some 350 persons found not guilty by reason
of insanity only twenty percent of them suffered from mental
illness sufficient to exculpate their actions. Thirty percent of those
persons were found to have no mental illness whatsoever. The
remaining fifty percent were viewed as having some psychosis or
neurosis, but with no evident relationship between their mental
state and their crime. Robey, [Guilty but mentally ill, 6 Bull Am
Acad Psychiatry Law, 374, 374-375 (1978)]. Of course, a verdict of
not guilty by reason of insanity determines a defendant’s mental
state at the time of the crime, not afterwards. Still, in view of these
statistics and the number of persons released after McQuillan, and
unless treatment of the mentally ill has progressed far beyond the
level of which we are aware, one can hardly conclude that the
Legislature was irrational in finding the insanity verdict to have
been misused. [People v Ramsey, 422 Mich 500, 512 n 3; 375 NW2d
297 (1985).]

In response to the public outcry and perceived problems with the

insanity defense, the Legislature enacted sweeping revisions to the
Mental Health Code and the Code of Criminal Procedure. 1975 PA 179,
180. In particular, the Legislature:
(1) adopted a statutory definition of insanity based on § 4.01 of the
Model Penal Code,
(2) created the guilty but mentally ill verdict,

6
Smith & Hall, Project, Evaluating Michigan’s guilty but mentally ill
verdict: An empirical study, 16 U Mich J L Ref 77, 82 (1982); Schwartz,
Moving Backward Confidently, 54 Mich Bar J 847, 848 (1975).
7
People v Ramsey, 422 Mich 500, 511 (1985).
1162 482 MICHIGAN REPORTS
(3) required the guilty but mentally ill verdict to be an option every
time the insanity defense was raised,8
(4) enacted a statute preventing an individual from claiming
insanity because he or she was under the influence of voluntarily
consumed alcohol or drugs at the time of the alleged offense, MCL
768.21a,9
(5) enacted a statute requiring that the jury be instructed regarding
the law before trial starts whenever an insanity defense is presented,
MCL 768.29a(1),10 and
(6) required that a defendant who wishes to pursue an insanity
defense serve written notice on the court and the prosecutor not less than
30 days before trial and submit to a court-ordered examination, relating
to the claim of insanity, by personnel for the Center for Forensic
Psychiatry or other qualified personnel. MCL 768.20a.

8
Pursuant to MCL 768.29a(2), if a defendant asserts an insanity
defense at trial, the jury shall be instructed regarding the following
possible verdicts: “guilty, guilty but mentally ill, not guilty by reason
of insanity, and not guilty with regard to the offense or offenses
charged.” Similarly, MCL 768.36 provides that if the defendant asserts
a defense of insanity in compliance with MCL 768.20a, the defendant
may be found “guilty but mentally ill” if, after trial, the trier of fact
finds the defendant is guilty of an offense beyond a reasonable doubt,
that the defendant has shown by a preponderance of evidence that he
or she was mentally ill at the time of the commission of that offense,
but that the defendant has not shown by a preponderance of the
evidence that he or she was legally insane at the time of the
commission of that offense.
9
MCL 768.21a(2) currently provides:

An individual who was under the influence of voluntarily

consumed or injected alcohol or controlled substances at the time
of his or her alleged offense is not considered to have been legally
insane solely because of being under the influence of the alcohol or
controlled substances.
Before 1994, MCL 768.21a(2) provided, “A person who is under the
influence of voluntarily consumed or injected alcohol or controlled
substances at the time of his alleged offense shall not thereby be deemed
to have been legally insane.”
10
This statute directs our courts to instruct on the definitions of
mental illness, mental retardation, and legal insanity immediately before
the commencement of testimony on insanity in a jury trial. See CJI2d
7.9.
 ACTIONS ON APPLICATIONS 1163
Given the vastness of these legislative substantive and procedural
changes, one can see why People v Carpenter, 464 Mich 223, 237 (2001),
concluded that the Legislature had established a “comprehensive statu-
tory framework” that determines “when mental incapacity can serve as
a basis for relieving one from criminal responsibility.”

B. THE CURRENT LAW REGARDING INSANITY

In 1994, the Legislature slightly revised the definition of legal insanity

and further provided that a defendant has the burden of proving insanity
by a preponderance of the evidence. MCL 768.21a(1) and (3).11 Legal
insanity is now a statutorily granted affirmative defense12 requiring
proof that, as a result of mental illness or being mentally retarded as
defined in the mental health code, the defendant lacked “substantial
capacity either to appreciate the nature and quality or the wrongfulness
of his or her conduct or to conform his or her conduct to the requirements
of the law.” MCL 768.21a(1).13 And, as previously mentioned, pursuant to

11
1994 PA 56. In addition to placing the burden of proof on the
defense, the 1994 amendment also clarified that the cognitive prong of
the insanity definition also includes a defendant who “lacks substantial
capacity . . . to appreciate the nature and quality . . . of his or her con-
duct.”
Before October 1, 1994, a defendant in a criminal proceeding was
presumed sane, but once any evidence of insanity was introduced, the
prosecution bore the burden of establishing defendant’s sanity beyond
a reasonable doubt. In re Certified Question (Duffy v Foltz), 425 Mich
457 (1986); People v Stephan, 241 Mich App 482, 488-489 (2000).
12
As we stated in People v Hayes, 421 Mich 271, 279 (1984), there is no
constitutional right to assert an insanity defense. In fact, a few states
have eliminated the insanity defense altogether. See Idaho Code Ann
18-207(1); Mont Code Ann 46-14-102; Kan Stat Ann 22-3220; Utah Code
Ann 76-2-305.
13
As explained in People v Goad, 421 Mich 20; (1984), jurors are not to
be instructed regarding the disposition of a defendant found not guilty by
reason of insanity. This is because disposition involves contingencies so
numerous that disposition simply cannot be predicted. Id. at 32. See also
MCR 6.304(B).
Persons acquitted of an offense by reason of insanity may be
confined and required to undergo evaluation and treatment. MCL
330.2050. As stated in People v Webb, 458 Mich 265, 281 (1998), MCL
330.2050 is
1164 482 MICHIGAN REPORTS
MCL 768.29a(2) and MCL 768.36, if a defendant asserts an insanity
defense at trial, the jury must also be instructed regarding the guilty but
mentally ill verdict.14
There are several procedural requirements that must be satisfied
before a defendant can raise an insanity defense.15 We recently
summarized those requirements in People v Toma, 462 Mich 281, 292 n
6 (2000):

A defendant in a felony case who wishes to interpose an

insanity defense, must serve written notice on the court and the
prosecutor not less than thirty days before trial and submit to a
court-ordered examination, relating to the claim of insanity, by
personnel for the center for forensic psychiatry or other qualified
personnel. MCL 768.20a(1) and (2); MSA 28.1043(1)(1) and (2). A
defendant or the prosecutor may also obtain independent psychi-
atric examinations. MCL 768.20a(3); MSA 28.1043(1)(3). The
failure by the defendant to fully cooperate in either the court-
directed or independent examinations, bars the defendant from
presenting testimony relating to insanity at trial. MCL 768.20a(4);
MSA 28.1043(1)(4).

As this Court noted in People v Hayes, 421 Mich 271, 288 (1984), “the
Center for Forensic Psychiatry is an independent branch of the state
government.” According to the Michigan Department of Community
Health’s website, the Center for Forensic Psychiatry is a 210-bed psychi-

a measure to promote public safety. Persons acquitted by

reason of insanity, particularly where the facts are grave,
cannot be allowed simply to walk out the front door of the
courthouse. The statute is clearly designed to establish a
procedure by which it can be determined whether the person
can safely reenter society.
14
In Ramsey, 422 Mich at 514, this Court rejected the claim that the
“guilty but mentally ill” statute, MCL 768.36, denied a defendant a
right to a fair trial by creating an unjustified risk of a compromise
verdict.
15
It is well established that the right to assert a defense may be limited
by “established rules of procedure and evidence designed to assure both
fairness and reliability in the ascertainment of guilt and innocence.”
Chambers v Mississippi, 410 US 284, 302 (1973). This Court has
previously held that limitations placed on raising the insanity defense,
pursuant to the procedures established in MCL 768.20a, do “not uncon-
stitutionally infringe on a defendant’s right to present a defense.” Hayes,
421 Mich at 283.
 ACTIONS ON APPLICATIONS 1165
atric facility located in Ann Arbor16 “that provides both diagnostic
services to the criminal justice system and psychiatric treatment for
criminal defendants adjudicated incompetent to stand trial and/or acquit-
ted by reason of insanity.”17 The forensic center performs approximately
3,100 diagnostic evaluations each year to determine defendants’ compe-
tency to stand trial18 and insanity at the times they allegedly committed
their crime. Id.

V. THE STATUTE

MCL 768.20a provides in full:

(1) If a defendant in a felony case proposes to offer in his or her

defense testimony to establish his or her insanity at the time of an
alleged offense, the defendant shall file and serve upon the court
and the prosecuting attorney a notice in writing of his or her
intention to assert the defense of insanity not less than 30 days
before the date set for the trial of the case, or at such other time as
the court directs.
(2) Upon receipt of a notice of an intention to assert the defense
of insanity, a court shall order the defendant to undergo an
examination relating to his or her claim of insanity by personnel of
the center for forensic psychiatry or by other qualified personnel,
as applicable, for a period not to exceed 60 days from the date of
the order. When the defendant is to be held in jail pending trial, the
center or the other qualified personnel may perform the examina-
tion in the jail, or may notify the sheriff to transport the defendant
to the center or facility used by the qualified personnel for the
examination, and the sheriff shall return the defendant to the jail
upon completion of the examination. When the defendant is at
liberty pending trial, on bail or otherwise, the defendant shall
make himself or herself available for the examination at the place
and time established by the center or the other qualified person-

16
The center’s evaluation unit maintains satellite facilities at the Kent
County Correctional Facility, Marquette County Sheriff’s Department,
and the Grand Traverse County Sheriff’s Department for evaluation of
defendants from those areas.
17
<http://www.michigan.gov/mdch/1,1607,7-132-2941_4868_4896-
14465--,00.html> (accessed December 1, 2008).
18
Pursuant to MCL 330.2020(1), a defendant “shall be determined
incompetent to stand trial only if he is incapable because of his mental
condition of understanding the nature and object of the proceedings
against him or of assisting in his defense in a rational manner.” Pursuant
to MCL 330.2022(1), “[a] defendant who is determined incompetent to
stand trial shall not be proceeded against while he is incompetent.”
1166 482 MICHIGAN REPORTS
nel. If the defendant, after being notified of the place and time of
the examination, fails to make himself or herself available for the
examination, the court may, without a hearing, order his or her
commitment to the center.
(3) The defendant may, at his or her own expense, secure an
independent psychiatric evaluation by a clinician of his or her
choice on the issue of his or her insanity at the time the alleged
offense was committed. If the defendant is indigent, the court may,
upon showing of good cause, order that the county pay for an
independent psychiatric evaluation. The defendant shall notify the
prosecuting attorney at least 5 days before the day scheduled for
the independent evaluation that he or she intends to secure such
an evaluation. The prosecuting attorney may similarly obtain
independent psychiatric evaluation. A clinician secured by an
indigent defendant is entitled to receive a reasonable fee as
approved by the court.
(4) The defendant shall fully cooperate in his or her examina-
tion by personnel of the center for forensic psychiatry or by other
qualified personnel, and by any other independent examiners for
the defense and prosecution. If he or she fails to cooperate, and
that failure is established to the satisfaction of the court at a
hearing prior to trial, the defendant shall be barred from present-
ing testimony relating to his or her insanity at the trial of the case.
(5) Statements made by the defendant to personnel of the
center for forensic psychiatry, to other qualified personnel, or to
any independent examiner during an examination shall not be
admissible or have probative value in court at the trial of the case
on any issues other than his or her mental illness or insanity at the
time of the alleged offense.
(6) Upon conclusion of the examination, the center for forensic
psychiatry or the other qualified personnel, and any independent
examiner, shall prepare a written report and shall submit the
report to the prosecuting attorney and defense counsel. The report
shall contain:
(a) The clinical findings of the center, the qualified personnel,
or any independent examiner.
(b) The facts, in reasonable detail, upon which the findings
were based.
(c) The opinion of the center or qualified personnel, and the
independent examiner on the issue of the defendant’s insanity at
the time the alleged offense was committed and whether the
defendant was mentally ill or mentally retarded at the time the
alleged offense was committed.
 ACTIONS ON APPLICATIONS 1167
(7) Within 10 days after the receipt of the report from the
center for forensic psychiatry or from the qualified personnel, or
within 10 days after the receipt of the report of an independent
examiner secured by the prosecution, whichever occurs later, but
not later than 5 days before the trial of the case, or at another time
the court directs, the prosecuting attorney shall file and serve
upon the defendant a notice of rebuttal of the defense of insanity
which shall contain the names of the witnesses whom the pros-
ecuting attorney proposes to call in rebuttal.
(8) The report of the center for forensic psychiatry, the quali-
fied personnel, or any independent examiner may be admissible in
evidence upon the stipulation of the prosecution and defense.
(9) As used in this section, “qualified personnel” means per-
sonnel meeting standards determined by the department of com-
munity health under rules promulgated pursuant to the adminis-
trative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.

As stated in People v Wallace, 160 Mich App 1, 5 (1987), “[t]he purpose

of requiring notice of intent to claim the defense of insanity is to protect
the public and avoid unfair surprise to the prosecution at trial. The
statute is also designed to protect the integrity of the evidence regarding
an insanity defense.” (Citations omitted.)
As is apparent, MCL 768.20a has nine subsections. Pursuant to
subsection 1, a defendant who proposes to offer testimony to establish
insanity is required to file and serve a notice to that effect. Subsection 2
provides that on receipt of such a notice, a trial court shall order the
defendant’s examination by the Center for Forensic Psychiatry. Pursuant
to subsection 3, a defendant and the prosecutor are allowed to secure an
independent psychiatric evaluation. Subsection 4 states that the defen-
dant is required to “fully cooperate,” and if a court is persuaded that the
defendant is not cooperating, the defendant can be barred from present-
ing an insanity defense.19 Pursuant to subsection 5, statements made by
the defendant during an examination are not admissible at trial on any
issue other than mental illness or insanity. Subsection 6 provides that
examiners are required to prepare written reports of their clinical
findings, including the reasonably detailed facts on which the findings
are based and an opinion on whether the defendant was in fact insane,
mentally ill, or mentally retarded at the time of the alleged crime.
Pursuant to subsection 7, the prosecutor has to file and serve a notice of
rebuttal of the insanity defense, within certain time limits, which notice
shall contain the names of witnesses the prosecutor intends to call in
rebuttal. Subsection 8 provides that an examiner’s report may be

19
In People v Hayes, 421 Mich at 275, 288, this Court held that the
preclusion sanction of subsection 4 did not unconstitutionally infringe a
defendant’s right to present a defense and that the statute was not
unconstitutionally vague.
1168 482 MICHIGAN REPORTS
admitted into evidence upon stipulation of the parties. Finally, subsection
9 defines the phrase “qualified personnel” as used in the statute.

VI. DID THE STATUTE APPLY?

As previously indicated, defense counsel sought a court order that

would have required the county sheriff to make defendant available to a
psychologist for several hours beyond what normal jail visitation policies
allowed in order to assist counsel in deciding whether to assert an
insanity defense. The trial court held that the statute applied such that
defendant was not entitled to an independent evaluation until he had
filed a notice of intent and had been examined at the forensic center. The
Court of Appeals, however, determined that the statute simply did not
apply because defense counsel had not proposed an insanity defense.
Rather, he was only investigating whether to file a notice of intent.
MCL 768.20a(1) provides in pertinent part:

If a defendant in a felony case proposes to offer in his or her

defense testimony to establish his or her insanity at the time of an
alleged offense, the defendant shall file and serve upon the court
and the prosecuting attorney a notice in writing of his or her
intention . . . .

The Court of Appeals analyzed the issue as follows:

According to the plain statutory language, MCL 768.20a comes

into play “[i]f a defendant in a felony case proposes to offer in his
or her defense testimony to establish his or her insanity at the
time of an alleged offense . . . .” MCL 768.20a(1) (emphasis
added). Of particular relevance in this context, the word “propose”
is defined as “to plan; intend,” Random House Webster’s College
Dictionary (1997) . . . . [Emphasis in original.]

***

We cannot conclude that by requesting an independent psycho-

logical evaluation for defendant, defense counsel was “propos[ing]
to offer . . . testimony to establish [defendant’s] insanity at the
time of an alleged offense . . . .” MCL 768.20a(1). As noted, it was
not yet known whether an insanity defense would even be viable,
and it would be unreasonable to deduce from counsel’s mere
request to investigate defendant’s mental state that the defense
had solidified “a plan or intention” to raise the insanity defense at
trial. [Emphasis added.]

***
 ACTIONS ON APPLICATIONS 1169
MCL 768.20a does not come into play until a defendant
definitively “proposes to offer in his or her defense testimony to
establish his or her insanity . . . .” [Shahideh, 277 Mich App at
115-117 (emphasis added).]

Thus, the Court of Appeals majority looked to Random House

Webster’s College Dictionary’s definition of the word “propose.” That
definition provides seven different entries. But the Court of Appeals only
cited the fifth entry, which is “to plan; intend.” The panel did not cite the
first definition, “to offer for consideration, acceptance, or action,” the
third definition, “to suggest,” or the seventh entry, “to form or consider
a purpose or design.”
The Court of Appeals also cited the Webster’s Third New International
Dictionary, Unabridged Edition’s first definition of the intransitive verb
“propose,” which is “to form or declare a plan or intention.” But the
Court of Appeals did not cite the third entry for the transitive verb form:
“to offer for consideration, discussion, acceptance, or adoption.”
As is apparent, the Court of Appeals cited the most narrow definitions
and omitted other broader definitions of the word “propose.” In Feyz v
Mercy Mem Hosp, 475 Mich 663, 684 n 62 (2006), this Court noted that
“because a word can have many different meanings depending on the
context in which it is used, and because dictionaries frequently contain
multiple definitions of a given word, . . . it is important to determine the
most pertinent definition of a word in light of its context.”
The broader definition of “to suggest or consider” (combining the
third and seventh definitions from Random House Webster’s College
Dictionary) is inconsistent with the Court of Appeals majority’s analysis
that a notice of intent must be filed only after a defendant has “solidified”
a plan or “definitively” intends to offer the insanity defense. Thus, the
question is whether the most pertinent definition of “propose” in MCL
768.20a is the broad “to suggest or consider” or the more narrow “plan or
intend” used by the Court of Appeals.
As explained below, there are several reasons, textual and otherwise,
that the most pertinent definition of “propose” in MCL 768.20a is the
broad “to suggest or consider.” First, the “to suggest or consider”
interpretation is supported by the broader context of the statute.
Subsections 4 through 8 contain identical reporting requirements and
evidentiary restrictions, regardless of whether an examination is autho-
rized under MCL 768.20a(2) (examination at the forensic center) or (3)
(independent evaluation by a clinician of defendant’s choice), as is
apparent from the repeated references to both the forensic center and the
independent examiner in each of those sections. The Legislature had no
reason to specifically permit independent evaluations and then subject
them to the requirements of subsection 4 (defendant must cooperate), 5
(statements made not admissible regarding any issue other than mental
illness or insanity), 6 (written report must be filed by examiner), 7
(prosecutor may file notice of rebuttal of the insanity defense), or 8
(reports filed under subsection 6 may be admitted into evidence upon
stipulation of the parties) if it had intended them to be available for
1170 482 MICHIGAN REPORTS
investigatory purposes without the requirements of subsections 4
through 8 before the filing of a notice of intent.
Second, the broader definition of “propose” is more consistent with
one of the primary purposes of the statute: “to protect the integrity of the
evidence regarding an insanity defense.” Wallace, 160 Mich App at 5. In
this context, the language must mean to do everything possible to
preclude the introduction of “gamed” insanity evidence or “prepping” a
defendant for a forensic center examination.20
Under the broad definition of “propose,” the statute becomes appli-
cable once defense counsel considers whether the accused might have
been insane when the crime was committed. This in turn leads to the
filing of a notice of intent and a criminal responsibility examination by
the forensic center. Having the first mental health examination per-
formed by a neutral expert who is not beholden to the prosecution or the
defense, before the defendant has perhaps been instructed on how to
work the system, protects the integrity of the evidence regarding insan-
ity. It prevents any taint that might occur if an independent examiner
employed by the defense wittingly or unwittingly suggests how a defen-
dant should tell his or her story or describe his or her mental health
symptoms to a subsequent evaluator. See, e.g., McGarty v O’Brien, 188
F2d 151, 155-156 (CA 1, 1951).21
Previous decisions of this Court support the idea that all evaluations
should come within the purview of MCL 768.20a. In Carpenter, 464 Mich
at 231, this Court reiterated that there are “procedural requirements

20
Rare is the Michigan lawyer who is unaware of the “lecture” scene
from Anatomy of a Murder (1958), by the late Justice JOHN VOELKER of the
Michigan Supreme Court (using the pseudonym Robert Traver). In that
novel, Lieutenant Manion shoots Barney Quill in front of a roomful of
witnesses. Manion then meets his new defense attorney, and Manion
blurts out a story making it plain that he committed first-degree murder.
The attorney quickly stops Manion, and gives him a highly suggestive
“lecture” on the defenses for murder, strongly implying that Manion’s
only option is an insanity defense. When the lecture ends, Manion says,
“Maybe . . . maybe I was insane.” He manufactures a story about black-
outs and irresistible impulses, and his attorney replies, “Maybe you’ve
got something there.” Traver, Anatomy of a Murder (New York: St.
Martin’s Press, 1958), pp 44-49.
21
Dr. Barbara Kirwin has coined the phrase “designer defense” to
describe a psychological defense used in an insanity plea that is carefully
fabricated to fit all the pertinent facts of the case, and then tailored to
individual characteristics of the defendant that might appeal to a
jury—all regardless of whether any bona fide incapacitating mental
illness exists. The nature of a particular designer defense is determined
by what sympathy-evoking excuses are in vogue at the time of the trial.
Barbara R. Kirwin, The Mad, the Bad, and the Innocent: The Criminal
Mind on Trial (New York: Little, Brown & Company, 1997), pp 65-95.
 ACTIONS ON APPLICATIONS 1171
that must be satisfied before an insanity defense may be raised.” Id.
Particularly compelling is the description of these requirements:

A defendant in a felony case who wishes to interpose an

insanity defense[] must serve written notice on the court and the
prosecutor not less than thirty days before trial and submit to a
court-ordered examination, relating to the claim of insanity, by
personnel for the center for forensic psychiatry or other qualified
personnel. MCL 768.20a(1) and (2); MSA 28.1043(1)(1) and (2). A
defendant or the prosecutor may also obtain independent psychi-
atric examinations. MCL 768.20a(3); MSA 28.1043(1)(3). [Toma,
462 Mich at 292 n 6 (emphasis added).]

The language “may also obtain” from Toma suggests that the inde-
pendent evaluation permitted by MCL 768.20a(3) is in addition to, rather
than an investigatory prelude to, the forensic center examination re-
quired by MCL 768.20a(2).
I also note that the Court of Appeals conclusion that the statute does
not apply until defense counsel has “solidified” a plan or “definitively”
intends to raise the insanity defense is contrary to how our criminal
justice system actually operates. As previously mentioned, the forensic
center evaluates about 3,000 defendants a year for competency and
criminal responsibility (i.e., insanity). Yet, the vast majority of examined
defendants do not ultimately introduce the insanity defense.22 Many, if
not most, defendants who file a notice of intent pursuant to MCL 768.20a
decide not to pursue an insanity defense. Indeed, I question how defense
counsel could ever “solidify” or “definitively” plan on raising an insanity
defense in the absence of an expert opinion, after an examination, that
the defendant was insane at the time the crime was committed.23 Defense
attorneys simply do not “solidify” their plan or “definitively” decide
whether to pursue an insanity defense on their client’s behalf until after
an expert provides an opinion that the defendant may have been insane
at the time the crime was committed.
I thus conclude that the statutory term “propose” includes “suggest
or consider” and, therefore, comes into play by the time a defense
attorney decides to have a psychologist or psychiatrist examine his or her
client. I am satisfied that this construction is consistent with the fair
import of the terms, promotes justice, and effects the objects of the law.
MCL 750.2.

22
As is stated in the use note of CJI2d 7.9, “[f]iling a notice of intent to
assert an insanity defense is not the same as actually asserting the
defense at trial.” (Emphasis in original.) See, e.g., People v Toma, 462
Mich at 290 (defendant was interviewed by a clinical psychologist
pursuant to a notice of intent, but thereafter “defendant did not raise
insanity as a defense at trial”).
23
This is not surprising given that the defendant has the burden of
proof with respect to an insanity defense.
1172 482 MICHIGAN REPORTS
VII. IS A NOTICE OF INTENT TO ASSERT
AN INSANITY DEFENSE A PARTY ADMISSION?

In an attempt to bolster its conclusion that the statute did not

apply to defense counsel’s motion, the Court of Appeals noted that
MRPC 3.1 provides that “a lawyer must not assert an issue in any
proceeding ‘unless there is a basis for doing so that is not frivolous.’ ”
Shahideh, 277 Mich App at 117 n 1. It then said that an attorney
“would violate this ethical obligation by filing a written notice of
intent to raise the insanity defense before adequately investigating the
viability of such a defense and forming a sufficient basis to believe that
the defense is warranted.” Id. While I conceptually agree that it might
be possible for a defense attorney to violate MRPC 3.1 by filing a
notice of intent pursuant to MCL 768.20a when there is no basis for
doing so, it must be recalled that defense counsel has a constitutional
duty to provide effective assistance of counsel and that this includes
investigating defenses.24
A nonfrivolous basis for filing a notice of intent under MCL 768.20a
certainly existed in this case where defense counsel knew that defendant
had been diagnosed with bipolar disorder and had been prescribed
psychiatric medications. Indeed, the prosecutor’s willingness to stipulate
a referral further suggests that a nonfrivolous basis existed in the case at
bar.
In the course of responding to the prosecutor’s argument that a
defendant can always withdraw a notice of intent, the Court of Appeals
said:

A notice of intent to pursue the insanity defense under MCL

768.20a(1) is a party admission. MRE 801(d)(2); see also People v
McCray, 245 Mich App 631, 635; 630 NW2d 633 (2001) (notice of
alibi defense, as a party admission, is admissible for purpose of
impeachment). Therefore, even if a defendant withdraws his or
her initial written notice, the prosecution remain [sic] free to use
the contents of the notice as impeachment evidence at trial.
[Shahideh, 277 Mich App at 118 n 2.]

This is incorrect. A notice of intent under MCL 768.20a is not a party

admission that is admissible for the purpose of impeachment. The filing
of a notice is nothing more than an assertion that one intends to submit

24
“Counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.”
Strickland v Washington, 466 US 668, 691 (1984). See also Avery v
Prelesnik, 548 F3d 434 (CA 6, 2008) (affirming that defendant “was
deprived of his right to effective assistance of counsel when his attorney
failed to investigate and interview potential alibi witnesses”).
 ACTIONS ON APPLICATIONS 1173
testimony that a defendant was insane when the crime was committed.25
Indeed, as stated in People v Martin, 386 Mich 407, 427 (1971), “a plea of
not guilty by reason of insanity is not a plea that incriminates.”
While the filing of a notice of alibi is a party admission, as explained
in McCray, the filing of a notice of insanity is not. Unlike a notice of alibi,
a notice of intent to pursue an insanity defense does not require a
defendant to admit anything more than that he or she was not sane when
the crime occurred.
In McCray, the defendant argued that his notice of alibi should be
treated like statements a defendant makes to an examining psychiatrist,
which are not admissible pursuant to MCL 768.20a(5) if the defendant
later chooses not to pursue an insanity defense. The Court of Appeals
rejected this argument because the alibi statute has no counterpart to
subsection 5 of MCL 768.20a, i.e., a provision that prohibits the admis-
sion of statements made during an examination, including for purposes of
impeachment.26 Thus, the Court of Appeals in the instant case erred in
relying on McCray for the proposition that a notice of intent to assert an
insanity defense is a party admission.
For all these reasons, I conclude that if defense counsel has sufficient
information to warrant a defendant’s evaluation for insanity, he or she
must file a notice of intent pursuant to MCL 768.20a.27 After the

25
Moreover, as for things a defendant might say while being examined,
MCL 768.20a(5) provides:

Statements made by the defendant to personnel of the center

for forensic psychiatry, to other qualified personnel, or to any
independent examiner during an examination shall not be admis-
sible or have probative value in court at the trial of the case on any
issues other than his or her mental illness or insanity at the time
of the alleged offense.
Thus, the Legislature has expressly forbidden the admission of
anything a defendant says during an examination for any issue other
than mental illness or insanity. If a defendant decides not to pursue an
insanity defense, after having filed a notice of intent and having been
examined, thus removing defendant’s sanity as an issue from the trial,
anything the defendant said during the insanity examinations may not be
admitted at trial. Hence the Court of Appeals clearly erred in stating that
defendant had to give up his Fifth Amendment right against self-
incrimination in order to pursue an insanity defense. Toma, 462 Mich at
294.
26
McCray, 245 Mich App at 636, citing People v Toma, 462 Mich at 293.
27
I also reject the Court of Appeals remedy in this case. The Court of
Appeals said: “If the psychologist and defense counsel find that there is
a triable issue concerning defendant’s sanity at the time of the charged
offense, then the trial court shall vacate defendant’s conviction and a new
1174 482 MICHIGAN REPORTS
defendant is first examined at the forensic center, the defendant is free to
request an independent evaluation pursuant to MCL 768.20a(3). Because
defendant’s motion made MCL 768.20a applicable, defense counsel’s
failure to invoke the statute precludes a finding of error.

VIII. EFFECTIVE ASSISTANCE OF COUNSEL

After concluding that the statute did not apply, the Court of Appeals
went on to hold that the trial court’s denial of defendant’s motion
violated his constitutional right to the effective assistance of counsel
because it deprived his attorney of the opportunity to investigate a
potential insanity defense. Shahideh, 277 Mich App at 120-121.
It is true that under certain circumstances, even when counsel’s
performance is not intrinsically deficient, a defendant’s right to the
effective assistance of counsel may be denied by government action, Bell
v Cone, 535 US 685, 696 n 3 (2002), and that a defendant’s right to the
effective assistance of counsel is violated in “cases in which the court or
the state directly interferes with the attorney-client relationship by
preventing counsel from rendering assistance.” People v Mitchell, 454
Mich 145, 154 (1997).28 However, these holdings are inapplicable to this
case. The Court of Appeals analysis is deficient in several regards. First,
defense counsel did investigate a potential insanity defense. This is how
he learned that defendant had been diagnosed with bipolar disorder and
had been prescribed psychiatric medications. Second, the trial court’s
refusal to allow a visit at the jail, well beyond the time normally allowed
for visits, did not completely preclude further investigation. The psy-
chologist could in fact have visited defendant in the jail for short periods
within the visitation policies of the jail. Also, the psychologist presumably
could have spoken with defendant on the telephone. Seen in this light,
the trial court’s ruling was quite limited. It did not forbid the psycholo-
gist from meeting defendant or speaking with defendant. The trial court
only refused to require the sheriff to allow visits of longer duration than
are allowed under existing visitation policies at the jail. I conclude that
the trial court’s denial of defendant’s motion did not rise to the level of
directly interfering with the attorney-client relationship by preventing
counsel from rendering assistance.

trial shall be held.” Shahideh, 277 Mich App at 121-122. I reject the
suggestion that whether a defendant is entitled to a new trial is subject
to decision by anyone other than a judge. Only a judge can grant a new
trial if it is warranted under the proper standard of review. See People v
Carines, 460 Mich 750, 774 (1999).
28
It is also true that a criminal defendant is denied the effective
assistance of counsel by his attorney’s failure to investigate and present
a meritorious insanity defense, People v Hunt, 170 Mich App 1, 13 (1988),
People v Parker, 133 Mich App 358, 363 (1984), and People v McDonnell,
91 Mich App 458, 461 (1979), but defendant does not argue that this line
of cases applies.
 ACTIONS ON APPLICATIONS 1175
I also note that the trial court’s order certainly did not prevent
defendant from obtaining an independent evaluation. The trial court’s
order expressly allowed such an evaluation if defendant filed a notice of
intent and was examined at the forensic center first. But, as previously
mentioned, after the trial court’s ruling, defense counsel never filed a
notice of intent, and instead chose to present a mitigation defense.
Requiring defendant to pursue an insanity defense in compliance with
the statute did not deny defendant his right to the effective assistance of
counsel.

IX. CONCLUSION

An incarcerated defendant is not entitled to a court order requiring

the sheriff to make the defendant available in the jail for a period beyond
that allowed by existing jail visitation policies so that the defendant may
be examined by a psychologist in order to help defense counsel decide
whether to file a notice of intent under MCL 768.20a. An incarcerated
defendant has no right to an independent evaluation under MCL 768.20a
until a notice of intent has been filed, and the defendant has first been
examined at the forensic center. In my judgment, the statute becomes
applicable as soon as defense counsel’s preliminary investigation pro-
duces sufficient information for counsel to decide to have his or her client
examined for insanity.
I also would hold that the trial court’s denial of defendant’s motion
did not violate defendant’s constitutional right to the effective assistance
of counsel.
CORRIGAN, J. I join the statement of Chief Justice TAYLOR.
YOUNG, J. (concurring). I concur in this Court’s order reversing the
Court of Appeals judgment and reinstating defendant’s conviction be-
cause he waived appellate relief. I write separately to address Justice
CAVANAGH’s dissent.
Defendant sought a court order permitting a privately retained
psychologist to examine him while he was in jail for the purpose of
evaluating the merits of an insanity defense. Defendant sought the order
because he had previously been diagnosed as bipolar and prescribed
Prozac, Xanax, and Ritalin. Defendant contended that the court order
was necessary because the evaluation would take more time than
permitted by ordinary jail visitation hours. The trial court denied
defendant’s motion, ruling that defendant must first file a notice of
intent to assert an insanity defense pursuant to MCL 768.20a(1) and
participate in an examination by the Center for Forensic Psychiatry1
before he could obtain an evaluation by his privately retained expert.
Defendant did not pursue his insanity defense by filing a § 20a(1) notice
as directed by the trial court. Instead, defendant abandoned his insanity
defense in favor of a mitigation defense. Defendant’s mitigation defense
proved unsuccessful, as a jury convicted him of first-degree murder.

1
See MCL 768.20a(2).
1176 482 MICHIGAN REPORTS
The Court of Appeals majority held that the trial court erred by
denying defendant’s pretrial motion and remanded for further proceed-
ings consistent with its opinion. The prosecutor sought leave to appeal in
this Court, and we have reversed the Court of Appeals judgment because
defendant waived appellate relief on this issue.
As stated, I concur with this Court’s order; the interpretation of MCL
768.20a(1) is moot because defendant intentionally abandoned his right
to assert an insanity defense2 and, therefore, waived relief related to
raising that defense on appeal.3 It is critical that the trial court’s ruling,
even if erroneous, did not prohibit defendant from pursuing an insanity
defense.4 Investigation of an insanity defense remained fully available to
defendant. That defendant may have been erroneously deprived of an

2
See People v Carines, 460 Mich 750, 762 n 7 (1999), quoting United
States v Olano, 507 US 725, 733 (1993).
3
See People v Carter, 462 Mich 206, 215 (2000), quoting United States
v Griffin, 84 F3d 912, 924 (CA 7, 1996).
4
The trial court did not violate the defendant’s right to present a
defense. “There is no question that a criminal defendant has a state and
federal constitutional right to present a defense.” People v Hayes, 421
Mich 271, 278 (1984), citing Const 1963, art 1, §§ 13, 17, 20, and US
Const, Ams VI, XIV. The protections afforded by that right were described
in Washington v Texas, 388 US 14, 19 (1967):

The right to offer the testimony of witnesses, and to compel

their attendance, if necessary, is in plain terms the right to present
a defense, the right to present the defendant’s version of the facts
as well as the prosecution’s to the jury so it may decide where the
truth lies. Just as an accused has the right to confront the
prosecution’s witnesses for the purpose of challenging their testi-
mony, he has the right to present his own witnesses to establish a
defense.
The United States Supreme Court has additionally observed:

[T]he cases in which we have invoked this principle [the right

to present a defense] dealt with the exclusion of evidence, see, e.g.,
Crane v Kentucky, [476 US 683 (1986)]; Chambers v Mississippi,
410 U.S. 284; 93 S. Ct. 1038; 35 L. Ed. 2d. 297 (1973), or the
testimony of defense witnesses, see, e.g., Webb v Texas, 409 U.S. 95;
93 S. Ct. 351, 34 L. Ed. 2d. 330 (1972) (per curiam); Washington v
Texas, [supra]. None of them involved restrictions imposed on a
defendant’s ability to present an affirmative defense. [Gilmore v
Taylor, 508 US 333, 343 (1993).]
The right to present a defense has only been invoked to reverse a
conviction when the defendant was completely precluded from offering
 ACTIONS ON APPLICATIONS 1177
opportunity for an independent evaluation before filing a § 20a(1) notice
is irrelevant in light of defendant’s subsequent decision to abandon the
investigation of his insanity defense. Indeed, the trial court’s order
expressly instructed defendant that he “has the right to full access to an
evaluation by a clinician of his choosing—at the appropriate time.” Thus,
the trial court’s order neither prohibited defendant from investigating
his insanity defense nor obtaining the independent evaluation that his
motion sought.
This case is not analogous to a defendant seeking to offer evidence,
but being denied the opportunity by an erroneous ruling by the court.
Rather, this case is more analogous to a defendant offering evidence and
the trial court denying its admission but instructing the defendant that
he may introduce the same evidence through another witness. In that
situation, if the defendant refuses to call that alternative witness or offer

relevant and material evidence or testimony on the basis of a rule or

decision that was “ ‘arbitrary’ or ‘disproportionate to the purposes they
are designed to serve.’ ” United States v Scheffer, 523 US 303, 308 (1998),
quoting Rock v Arkansas, 483 US 44, 56 (1987). See, e.g., Washington,
supra (holding that a Texas statute that prohibited the defendant from
presenting the testimony of a coparticipant who would have confessed to
the charged crime violated the defendant’s right to present a defense);
People v Whitfield, 425 Mich 116, 124 n 1 (1986) (holding that barring the
defendant from presenting the testimony of a medical expert violated the
defendant’s right to present a defense).
Unlike in Washington and Whitfield, the trial court’s ruling here did
not completely prohibit defendant from “present[ing] his own witness[]
to establish a defense.” Washington, supra at 19. The trial court merely
required that defendant file a notice and submit to an examination at the
Center for Forensic Psychiatry first. If defendant had complied, he could
have presented witnesses in support of an insanity defense. Instead,
defendant abandoned the defense.
Moreover, in Hayes, supra at 279, this Court recognized that “there is
no constitutional right to assert an insanity defense.” The Legislature is
free to define the defense and place limitations and requirements on its
exercise. See Speiser v Randall, 357 US 513, 523 (1958) (“It is of course
within the power of the State to regulate procedures under which its laws
are carried out . . . .”); Leland v Oregon, 343 US 790, 798 (1952)
(holding Oregon’s statute requiring a defendant to prove his insanity
beyond a reasonable doubt was not unconstitutional); Clark v Arizona,
548 US 735, 748-749 (2006) (holding that Arizona’s narrowed definition
of insanity was not unconstitutional). I believe that the Legislature could
impose the requirements that the court imposed in this case (albeit
arguably erroneously). Thus, those requirements did not infringe the
defendant’s right to present a defense such that his waiver can be
excused.
1178 482 MICHIGAN REPORTS
the evidence through that witness, then he has abandoned his right to
present that evidence to the jury and cannot obtain relief on appeal.
Indeed, as this Court has instructed, defendant “may not harbor error as
an appellate parachute.”5
Justice CAVANAGH suggests that defendant did not waive his insanity
defense because after the trial court’s ruling he had to choose between
two alternatives, each with its own consequences.6 As Justice CAVANAGH
explains, however, defendant chose not to submit to the Center for
Forensic Psychiatry examination because he wanted to protect the
secrecy of his trial strategy. Thus, defendant had a choice to continue
pursuing his insanity defense and chose to abandon it as a matter of trial
strategy. Waiver is not excused simply because the defendant was faced
with a difficult decision and regrets the strategic choice that he made.
Defendant was fully aware that he could file a § 20a(1) notice and
continue pursuing an insanity defense, but elected to abandon it in favor
of a mitigation defense. Defendant cannot obtain appellate relief because
his chosen defense strategy failed. Accordingly, I concur in this Court’s
order reinstating defendant’s conviction.
CAVANAGH, J. (dissenting).

I. FACTS AND PROCEDURE

In this case, defendant murdered his girlfriend under circumstances

that indicate the possibility that he was suffering from a psychological
disorder. After being arrested, defendant was being held in the county jail
while awaiting trial. Defense counsel began investigating an insanity
defense, which required a psychiatric evaluation of defendant. Accord-
ingly, defense counsel requested a court order to mandate that defendant

5
Carter, supra at 214.
6
Justice CAVANAGH contends that defendant believed he had no real choice
between pursuing an insanity defense and waiving his right to such defense,
because the trial court’s order would force defendant to admit guilt by
submitting a notice of intent and undergoing an examination by the Center
for Forensic Psychiatry, and would force defense counsel to violate the
Michigan Rules of Professional Conduct if defendant later decided to not
pursue the insanity defense. Yet, the trial court’s order clearly stated that
“any statements made by Defendant during the examination are admissible
only on the issue of his mental illness or insanity.” Additionally, the notice of
intent must only “state, as particularly as is known to the defendant or the
defendant’s attorney, the name of a witness to be called in behalf of the
defendant to establish” the insanity defense. MCL 768.21(1). Finally, de-
fense counsel would not have violated the Rules of Professional Conduct by
filing the notice of intent, because he had, in fact, gathered sufficient
information during his investigation to lead him to conclude that an insanity
defense might be a possibility.
 ACTIONS ON APPLICATIONS 1179
be allowed to be evaluated by an independent psychologist while in jail.
The trial court denied defendant’s request. It reasoned that, before he
could obtain an independent evaluation, defendant must first file a notice
of intent to assert an insanity defense pursuant to MCL 768.20a(1) and
undergo an examination by the Center for Forensic Psychiatry (CFP)
pursuant to MCL 768.20a(2). Defendant did not file a § 20a(1) notice
because he had been unable to get a professional opinion about his sanity
because the trial court precluded an in-jail evaluation. Defendant’s
counsel also believed that had he filed a § 20a(1) notice and later decided
not to present an insanity defense, the filing could be used against his
client as an admission of guilt. Accordingly, defense counsel investigated
and presented a defense that was not based on insanity. A jury convicted
defendant of first-degree murder.
The Court of Appeals majority held that the trial court erred in
denying defendant’s pretrial motion because “only a defendant who
‘plan[s]’ or ‘intend[s]’ to raise the insanity defense at trial must comply
with the procedures set forth in MCL 768.20a.” People v Shahideh, 277
Mich App 111, 116 (2007), quoting Random House Webster’s College
Dictionary (1997) for the definition of “propose.” The Court of Appeals
majority explained that MCL 768.20a did not apply to defendant’s
motion:

A mere request to investigate and examine the viability or

feasibility of a potential insanity defense is not sufficient to trigger
the statute. We conclude that defendant’s request for an indepen-
dent psychological evaluation was not governed by MCL 768.20a
because the defense had not yet “propose[d] to offer” an insanity
defense in this case. [Id. at 117.]
The Court of Appeals majority remanded for further proceedings consis-
tent with its opinion. It did not reach the merits of defendant’s equal
protection claim because its decision rested on the fact that the trial court
had misinterpreted the statute.
We granted the prosecution’s application for leave to appeal. We were
specifically interested in interpreting the statute and evaluating the
inner workings of its various subparts.1 The majority order reverses the

1
No justices dissented from the order granting leave to appeal and
requesting briefing on

(a) whether MCL 768.20a governs a request by an incarcerated

defendant for an independent psychiatric evaluation to determine
whether an insanity defense may be available where no notice of
intention to assert an insanity defense has been filed; (b) if the
statute governs, whether the subsections of MCL 768.20a are to be
construed seriatim, such that an independent psychiatric evalua-
tion may not be requested under subsection 3 without first
complying with subsections 1 and 2; and, (c) if the statute does not
apply, whether the defendant’s constitutional rights were violated
1180 482 MICHIGAN REPORTS
Court of Appeals, basing its decision on the heretofore unlitigated issue
of waiver. In sum, the majority order holds that defendant waived his
right to present an insanity defense.

II. ANALYSIS

A. WAIVER

I disagree with the majority order’s conclusion that defendant is

precluded from appellate relief because he had waived his right to present
an insanity defense. “Waiver is the intentional relinquishment of a
known right.” Bailey v Jones, 243 Mich 159, 162 (1928). In this case,
defendant was being held in the county jail while awaiting trial. During
this time, his attorney realized that defendant’s mental illness and
medications, coupled with his irregular behavior, indicated that he might
have been legally insane when the crime was committed. Accordingly,
defense counsel began investigating an insanity defense, which required
a psychiatric evaluation of defendant. To accomplish this, defense counsel
made a pretrial motion asking the trial court to allow an independent
psychologist access to defendant while defendant was incarcerated.
Defense counsel also asked for the prosecutor’s stipulation for such an
evaluation. In order to substantiate the need for this evaluation, defense
counsel offered to present to both the prosecutor and the trial court
defendant’s medical records, which reflected an earlier diagnosis of
bipolar disorder and applicable treatment plans, including prescriptions
for psychiatric medications. The prosecutor refused to stipulate an
evaluation, and the trial court wrongly applied the statute to deny
defendant’s request for an independent evaluation.2
Defense counsel was then left with the Hobson’s choice of forgoing the
insanity defense, for lack of investigation, or filing a notice of intent and
submitting to an examination by the state-run CFP. Defense counsel did
not want a CFP examination until defendant had undergone an indepen-
dent evaluation because counsel wanted to protect the secrecy of his trial
strategy. Defense counsel also thought that if he filed a § 20a(1) notice
and submitted defendant to the CFP examination, such an action could
be seen as an admission of guilt and a violation of the Michigan Rules of
Professional Conduct if he later elected not to present an insanity
defense. While these were incorrect conclusions, they nonetheless speak
to whether defendant intentionally waived a known right. In essence,
defense counsel subjectively believed that, on one hand, he could submit
defendant to the CFP examination and risk his client’s case and his

by the trial court’s decision to deny access to the defendant for an

independent psychiatric evaluation while he was in jail. [480 Mich
1195 (2008).]
2
See Part II(B), infra, explaining how the trial court misconstrued the
statute to preclude defendant from obtaining an independent evaluation.
 ACTIONS ON APPLICATIONS 1181
license to practice law, or, on the other hand, he could not submit defendant
to the CFP examination, abandon the nascent insanity defense for lack of an
investigation, and present some other fully developed defense strategy. And,
it was solely the trial court’s misreading of the statute that placed defense
counsel in this precarious position.3 Forced to choose, defense counsel
understandably elected to avoid the CFP examination and to present an
alternative defense. This does not evince a decision to intentionally
relinquish a known right. Rather, these facts reflect the opposite—
defense counsel was essentially forced to comply with a misapplication of
the statute or forgo investigating an insanity defense.4 Accordingly,
defendant did not waive his right to present an insanity defense, and he

3
In fact, if the trial court had interpreted the statute correctly, this
problem would have been obviated because defense counsel would have been
able to secure the independent evaluation and then present the insanity
defense in compliance with the statute or simply abandon it by never filing
a notice of intent.
4
The majority order holds that defendant made a strategic choice to
abandon an insanity defense. First, the existence of a mere choice does
not establish waiver. Waiver requires an intentional relinquishment of
a known right. This defendant did not intentionally relinquish his
right to investigate an insanity defense through an independent
evaluation. On the contrary, he expressly requested such an evaluation
and litigated his rights in that regard. Second, even if the order were
correct that the mere existence of a choice could establish a waiver, I
would hold that a choice between having a statute misapplied or losing
one’s right to fully investigate a defense does not constitute a choice.
Further, contrary to the order’s assertion, defendant did not have
enough information to “propose[] to offer in his . . . defense testimony
to establish his . . . insanity at the time of an alleged offense,” such
that he should have been forced to file a notice under MCL 768.20a(1).
Instead, defendant lacked that information, and he was expressly
trying to gain that information (or testimony) through the indepen-
dent evaluation that was wrongly denied to him. Indeed, being denied
this information was the impetus for his appeal to the Court of
Appeals. Thus, the order is simply wrong to suggest that defendant
had enough information to make a “good faith” decision on whether to
file a § 20a(1) notice. Notwithstanding the fact that “good faith” is
nowhere in the statute, this defendant’s choice to forgo his right to an
independent evaluation was no more of a waiver of his right to
investigate and present an insanity defense than a defendant’s choice
to confess without being given the advice of rights required by
Miranda v Arizona, 384 US 436 (1966), constitutes a knowing and
intentional waiver of his right to remain silent—especially when that
defendant had previously requested to remain silent.
1182 482 MICHIGAN REPORTS
is entitled to appellate relief.5
Despite it being the season for surprises, I share the parties’ pre-
sumed surprise in waking to see that this waiver issue controls this case.
Indeed, it is truly a magical delivery that waiver presents itself now, after
it being wholly absent from the parties’ arguments, the lower courts’
decisions, and this Court’s order granting leave to appeal.

B. STATUTORY INTERPRETATION

Because defendant did not waive his rights under the statute, I now
analyze the statute’s application in this case, which is what we initially
indicated that the entire Court would do. On that issue, I would affirm
the Court of Appeals to the extent it holds that the statute does not
preclude a criminal defendant from obtaining an independent psycho-
logical evaluation before delivering a § 20a(1) notice and submitting to a
CFP examination.
I also must respond to Chief Justice TAYLOR’s interpretation of the
statute. He concludes that the statute requires a criminal defendant to
file a notice of intent any time he merely “considers” investigating an
insanity defense. This interpretation is wrong and inherently paradoxi-
cal.
In statutory interpretation, words must be understood in their
grammatical context. Herman v Berrien Co, 481 Mich 352, 366 (2008).
MCL 768.20a(1) states:

If a defendant in a felony case proposes to offer in his or her

defense testimony to establish his or her insanity at the time of an
alleged offense, the defendant shall file and serve upon the court and
the prosecuting attorney a notice in writing of his or her intention to
assert the defense of insanity not less than 30 days before the date set
for the trial of the case, or at such other time as the court directs.

5
I also believe that defendant has presented a valid equal protection
claim. Defendant would have been free to obtain an independent evaluation
had he been free on bond. The only reason he was not allowed to obtain such
an evaluation was because he was being held in jail. I do not believe
defendant waived his right to present an insanity defense; nonetheless,
assuming that defendant did waive that right, such a waiver could only have
occurred after defendant was treated differently under the statute than a
defendant who was free on bond. It is undisputed that defendant requested
an independent evaluation. Defendant was then denied that right under
color of the statute. It was only after that denial that defendant allegedly
waived his right to present an insanity defense. Thus, defendant’s equal
protection claim regarding his treatment under the statute is still viable,
despite any alleged post hoc waiver, because it is that disparate treatment
that undoubtedly caused any alleged waiver. In other words, if defendant
would have been treated equally under the statute, the waiver issue would
never have arisen. See n 4 supra. Thus, defendant still deserves an
adjudication of his equal protection claim. And the majority order should
explain its conclusion to the contrary.
 ACTIONS ON APPLICATIONS 1183
A defendant must file a notice when he “proposes to offer in his or her
defense testimony to establish his . . . insanity at the time of an alleged
offense.” Essential to a proper definition of “propose” is the object of the
proposal: “to offer . . . testimony.” This suggests that the defendant
should first have testimony to offer in order to make a “proposal”
pursuant to § 20a(1). A defendant who has testimony to offer has gone
beyond merely “considering” the defense; such a defendant has formu-
lated a “plan” or “intent” to pursue an insanity defense at trial.
Moreover, “the entire act must be read, and the interpretation to be
given to a particular word in one section, arrived at after due consideration
of every other section so as to produce, if possible, a harmonious and
consistent enactment as a whole.” Grand Rapids v Crocker, 219 Mich 178,
182-183 (1922). MCL 768.21(1) is relevant to the scope of “propose” in §
20a(1):
If the defendant fails to file and serve the written notice pre-
scribed in section 20 or 20a, the court shall exclude evidence offered
by the defendant for the purpose of establishing an alibi or the
insanity of the defendant. If the notice given by the defendant does
not state, as particularly as is known to the defendant or the
defendant’s attorney, the name of a witness to be called in behalf of
the defendant to establish a defense specified in section 20 or 20a, the
court shall exclude the testimony of a witness which is offered by the
defendant for the purpose of establishing that defense.

The second sentence of § 21(1) indicates that the Legislature did not intend
to foreclose independent evaluations before the defendant has filed a §
20a(1) notice. Section 21(1) requires the defendant to identify the witness
whose testimony is proposed in the § 20a(1) notice “as particularly as is
known,” and if the witness is not sufficiently identified, his testimony is
excluded from trial. Thus, § 21(1) reinforces the conclusion that a defendant
should have testimony (from a particular witness) in order to make a
“proposal” pursuant to § 20a(1). If a defendant can provide “the name of a
witness to be called in behalf of the defendant to establish [an insanity]
defense,” that defendant has likely gone beyond mere “consideration” of the
defense.
Also, MCL 768.20a(2) through (7) clearly set forth a comprehensive
procedure for the parties to follow after the defendant files a § 20a(1) notice.
The procedure specific to raising an insanity defense before the defendant
files a notice, however, is not expressly provided by statute. The procedure
after a § 20a(1) notice is filed has no relevance to the procedure before a §
20a(1) notice is filed. Only the provisions addressing the content of a notice
address prenotice procedure by implication. MCL 768.20a(1) and 768.21(1).
Those provisions encourage defendants to have testimony to offer before
filing a § 20a(1) notice, and neither provision suggests a limitation on the
source of testimony. Indeed, expert testimony is a form of testimony that a
defendant may “offer in his . . . defense . . . to establish his . . . insanity at
the time of an alleged offense.” MCL 768.20a(1). Thus, I do not believe that
the Legislature intended to foreclose independent evaluations before a
defendant has filed a § 20a(1) notice.
1184 482 MICHIGAN REPORTS

In this case, at the time of his motion, defendant was not offering
testimony. Instead, his motion sought to potentially obtain “testimony to
establish his . . . insanity at the time of [the] alleged offense.” Accord-
ingly, I believe that the Court of Appeals correctly held that the trial court
erred and defendant was not prohibited under the statute from obtaining
some corroboration from an independent evaluation before filing a notice
of intent pursuant to § 20a(1).
Chief Justice TAYLOR’s contrary, broad interpretation of “propose”
would foreclose a defendant from investigating an insanity defense
before filing a § 20a(1) notice. But the chief justice’s own statement
contradicts that very understanding of the statute. The chief justice
states: “The psychologist could in fact have visited defendant in the
jail for short periods within the visitation policies of the jail.” It makes
no sense that the chief justice would say that a defendant could not
obtain an independent evaluation before filing a notice of intent, but
then also say that defendant would be free to meet with an indepen-
dent evaluator. If a defendant intends to meet with a psychologist for
an independent evaluation, whether within jail visitation hours or
while free on bond, certainly that defendant has “considered” offering
testimony to establish insanity as defined by the chief justice. Thus,
the chief justice’s rule contradicts itself as it applies to this case.
Further, the chief justice’s interpretation lacks foresight by failing to
recognize that, under it, all future defendants are precluded from proffering
insanity defenses if they merely contemplate seeking an independent
psychiatric evaluation before filing a § 20a(1) notice. Noncompliance with
the statute precludes use of the insanity defense. People v Hayes, 421 Mich
271 (1984). As noted, the chief justice would allow the instant defendant to
meet with an independent psychologist before filing a notice, but he would
preclude that meeting if it were seen as defendant “considering” presenting
an insanity defense, which would then result in him losing any possibility of
presenting an insanity defense under Hayes. Taken to its logical end, the
chief justice’s interpretation of the statute would apply Hayes to preclude
any insanity defense to a defendant whose attorney simply sat alone in his
office and contemplated, or studied, an insanity defense before filing a §
20a(1) notice. The Legislature could not have intended this illogical result.
But this is the illogical interpretation that the trial court applied in this case.
Therefore, defendant was wrongly denied an independent evaluation.

III. CONCLUSION

The Court of Appeals was correct to conclude that the trial court
misconstrued the statute. But, that Court granted an inappropriate
remedy by allowing the defendant and his independent psychologist to
unilaterally decide if a new trial was necessary. Instead, I would order
that the following progressive steps be taken: (1) remand the case to
allow defendant the opportunity to obtain an independent evaluation; (2)
if, after the evaluation, defense counsel maintains that he would have
gone forward with the insanity defense, then defendant must comply
with the statute’s provisions with respect to filing a § 20a(1) notice and
submitting to a CFP examination; (3) then, the trial court must conduct
 ACTIONS ON APPLICATIONS 1185
an evidentiary hearing to consider the insanity evidence that each side
would have presented at trial; and (4) the trial court should then rule on
the applicability of the harmless error rule, assuming that defendant
would have been able to present his insanity evidence.6
WEAVER and KELLY, JJ. We join the statement of Justice CAVANAGH.
PEOPLE V MERCER, No. 135811. By order of July 25, 2008, this Court, in
lieu of granting leave to appeal, remanded this case to the Ingham Circuit
Court to rule on the defendant’s motion to quash the bindover, and directed
that court to file with the Clerk of the Supreme Court a transcript of the
hearing and related documents. In an order faxed to this Court on August
25, 2008, the Ingham Circuit Court granted the defendant’s motion to quash
the bindover “for the reasons that there was no probable cause to bind the
case over for trial and no evidence a crime was actually committed.”
Subsequently, the prosecution informed the Clerk of the Supreme Court
that it would not be proceeding further in the prosecution. Accordingly, the
application for leave to appeal is denied as moot. Court of Appeals No.
281006.

Leave to Appeal Denied December 30, 2008:

MCINTYRE V CHAVALI, No. 136297; Court of Appeals No. 274526.

MCINTYRE V MOHAN, No. 136299; Court of Appeals No. 274462.
PEOPLE V ASHWORTH, No. 136548; Court of Appeals No. 273817.
PEOPLE V LEONARD MCCOY, No. 136652. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 281711.
PEOPLE V MICHAEL VANCE, No. 136670. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 282797.

6
The trial court may also have violated defendant’s constitutional right to
present a defense. Criminal defendants have a constitutional right to
present a defense. Hayes, supra at 278. Under MCL 768.20a, the Legisla-
ture has given defendants in Michigan the opportunity to present an
insanity defense. A state rule may not impinge on the defendant’s right to
present a defense by arbitrarily limiting defense strategies or arguments.
Washington v Texas, 388 US 14, 22 (1967). In this case, the statute was
wrongly applied to deny defendant his right to have an initial independent
evaluation. Accordingly, I am not convinced that the trial court in this case
did not unconstitutionally infringe defendant’s right to present a defense by
arbitrarily affecting his defense strategy by misapplying the statute. None-
theless, I do not reach this issue because I believe that defendant is entitled
to relief on his statutory claim of error.
1186 482 MICHIGAN REPORTS
BLASZCZYK V LIBERTY MUTUAL FIRE INSURANCE COMPANY, No. 136742;
Court of Appeals No. 275553.
PEOPLE V PETRI, No. 136775; reported below: 279 Mich App 407.
BUSSA V BUSSA, No. 136792; Court of Appeals No. 272805.
SHUBH HOTELS DETROIT, LLC v WELLS OPERATING PARATING PARTNERSHIP,
LP, No. 136883; Court of Appeals No. 276666.
VODOPYANOV V KELLER WILLIAMS REALTY NOTHRVILLE MARKET CENTER, No.
136939; Court of Appeals No. 274460.
PEOPLE V DURAN, No. 136948; Court of Appeals No. 276295.
CARR V FORD MOTOR COMPANY, Nos. 137025 and 137026; Court of
Appeals Nos. 273675 and 274251.
OKRIE V ETTEMA BROTHERS, No. 137040; Court of Appeals No. 275630.
HEERINGA V PETROELJE, No. 137051; reported below: 279 Mich App
444.
PEOPLE V GOSS, No. 137096; Court of Appeals No. 277142.
PEOPLE V BROCK, No. 137097; Court of Appeals No. 286041.
PEOPLE V TORIAL BROWN, No. 137103. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 284413.
PEOPLE V MURRAY, No. 137106; Court of Appeals No. 270983.
PEOPLE V MICHAEL CURRY, No. 137107; Court of Appeals No. 277371.
PEOPLE V LAWTON, No. 137127. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 285705.
CITY OF GRAND RAPIDS V BRIGHT, No. 137137; Court of Appeals No.
277604.
PEOPLE V RAYMOND HALL, No. 137138. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 284107.
NOWAK V BAY COUNTY, No. 137165; Court of Appeals No. 279076.
PEOPLE V HUDSON, No. 137166; Court of Appeals No. 285876.
PEOPLE V NATURALITE, No. 137176. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 282852.
SMITH V PARKLAND INN/CASUALTY RECIPROCAL EXCHANGE, No. 137178;
Court of Appeals No. 278676.
PEOPLE V TURKETTE, No. 137182; Court of Appeals No. 283829.
 ACTIONS ON APPLICATIONS 1187
PEOPLE V GOODIN, No. 137184; Court of Appeals No. 285729.
PEOPLE V STANLEY PARKER, No. 137191. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 282368.
PEOPLE V ANTONIO ROBERTSON, No. 137193; Court of Appeals No.
276092.
GAGGO V KENNEDY, No. 137200; Court of Appeals No. 278607.
PEOPLE V RHASHI HARRIS, No. 137207. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 284873.
ELMER’S CRANE & DOZER, INC V AWM CORPORATION, No. 137211; Court of
Appeals No. 278229.
PEOPLE V RILEY, No. 137218; Court of Appeals No. 286150.
PEOPLE V LOWES, No. 137219; Court of Appeals No. 286159.
PEOPLE V STONE, No. 137234; Court of Appeals No. 278829.
PEOPLE V MARTINEZ, No. 137241; Court of Appeals No. 285786.
PEOPLE V STARKS, No. 137248. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 282122.
PEOPLE V ARTISS WILLIAMS, No. 137253; Court of Appeals No. 278981.
PEOPLE V CHANDLER, No. 137259. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 284929.
FAGERMAN V FAGERMAN, No. 137264; Court of Appeals No. 275027.
PEOPLE V WENGOROVIUS, No. 137267. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 286686.
WALGREEN COMPANY V MACOMB TOWNSHIP, No. 137269; reported below
280 Mich App 58.
PEOPLE V WESLEY WILSON, No. 137271; Court of Appeals No. 276059.
GRUBKA V VAN DEUSEN, No. 137274; Court of Appeals No. 276322.
PEOPLE V GOODGER, No. 137277. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 283544.
PEOPLE V WAKEFIELD, No. 137278; Court of Appeals No. 278554.
PEOPLE V FELLA, No. 137282; Court of Appeals No. 286449.
HAYCOCK V BOOMER, No. 137292; Court of Appeals No. 283982.
SPECIAL ORDERS
 SPECIAL ORDERS 1201

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.

Order Entered September 4, 2008:

In re EXECUTIVE MESSAGE OF GOVERNOR REQUESTING THE AUTHORIZATION OF
A CERTIFIED QUESTION, No. 137195. The Governor’s September 2, 2008,
executive message, pursuant to MCR 7.305(A)(1), requested this Court to
authorize the Court of Appeals to certify a question relating to the
removal proceeding to be conducted by the Governor against the mayor
of Detroit. On the same date, the plaintiff mayor filed a claim of appeal in
Detroit Mayor v Governor (Court of Appeals Docket No. 287462) and, by
peremptory order of September 2, 2008, the Court of Appeals affirmed
the Wayne Circuit Court and denied the plaintiff mayor’s motion for a
stay. On September 3, 2008, the plaintiff mayor filed in this Court
(Docket No. 137197) an emergency application for leave to appeal from
that Court of Appeals decision. This Court denied that application on
September 4, 2008. Accordingly, in response to the executive message, we
respectfully decline the request to authorize the certified question
because it is effectively moot.
Order Entered September 15, 2008:
COOPER V AUTO CLUB INSURANCE ASSOCIATION, No. 132792. On order of
the Court, the motion for rehearing is considered and, in lieu of granting
rehearing, the opinion of the Court is amended by striking on pages 401 and
417 the language “Therefore, we reverse in part the judgment of the Court
of Appeals and remand the case to the trial court for further proceedings
consistent with this decision,” and substituting in lieu thereof the language:
“Therefore, we reverse in part the judgment of the Court of Appeals and
remand the case to the Court of Appeals for it to address the remaining
issues raised by the parties.” Court of Appeals No. 261736.
CAVANAGH, WEAVER, and KELLY, JJ. We would deny rehearing.
Order Entered September 16, 2008:
PROPOSED AMENDMENT OF RULE 2.614 OF THE MICHIGAN COURT RULES. On
order of the Court, this is to advise that the Court is considering an
amendment of Rule 2.614 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.
1202 482 MICHIGAN REPORTS
[The present language would be amended as indicated below:]
RULE 2.614. STAY OF PROCEEDINGS TO ENFORCE JUDGMENT.
(A) Automatic Stay; Exceptions: Injunctions, Receiverships, and Fam-
ily Litigation.
(1) Except as provided in this rule, execution may not issue on a
judgment and proceedings may not be taken for its enforcement until the
expiration of 21 days after its entry. If a motion for new trial, a motion to
alter or amend the judgment, a motion for judgment notwithstanding the
verdict, or a motion to amend or for additional findings of the court for
rehearing or reconsideration, or a motion for other relief from judgment is
filed and served within 21 days after entry of the judgment or within further
time the trial court has allowed for good cause during that 21-day period,
execution may not issue on the judgment and proceedings may not be taken
for its enforcement until the expiration of 21 days after the entry of the order
on deciding the motion, unless otherwise ordered by the court on motion for
good cause. Nothing in this rule prohibits the court from enjoining the
transfer or disposition of property during the 21-day period.
(2)-(3) [Unchanged.]
(B)-(G)[Unchanged.]
Staff Comment: The proposed amendments of MCR 2.614 are intended to
make the rule consistent with recent amendments of MCR 2.119, 7.204,
and 7.205, adopted May 28, 2008, and effective September 1, 2008, which
clarified that a party who seeks to appeal to the Court of Appeals has 21
days after the entry of an order deciding a motion for new trial, a motion
for rehearing or reconsideration, or a motion for other relief from the
order or judgment appealed, to file a claim of appeal or an application for
leave to appeal, if the motion is filed within the initial 21-day appeal
period, or within further time the trial court has allowed for good cause
during that 21-day period.
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 January 1, 2009,
at P.O. Box 30052, Lansing, MI 48909, or [email protected].
When filing a comment, please refer to ADM File No. 2008-24. Your
comments and the comments of others will be posted at
www.courts.mi.gov/supremecourt/resources/administrative/index.htm.
Order Entered September 17, 2008:
In re BARGLIND, No. 136881. The Judicial Tenure Commission having
issued its decision and recommendation of discipline, and the Honorable
Mary B. Barglind having consented to the commission’s findings of fact and
its recommendation for discipline, we accept the recommendation of the
Judicial Tenure Commission and order that Judge Barglind be suspended
for thirty days without pay, effective 21 days from the date of this order.
 SPECIAL ORDERS 1203
As we conduct our de novo review of this matter, we are mindful of the
standards set forth in In re Brown, 461 Mich 1291, 1292-1293 (2000). We
adopt the findings and conclusions of the Judicial Tenure Commission.
Respondent was at all relevant times a Judge of the 41st Circuit Court.
With no justifiable reason, respondent engaged in a pattern of delay in
rendering decisions in matters submitted to her for review. In some
instances, the delays exceeded two years. Respondent failed to respond
over a several month period to numerous inquiries made by the State
Court Administrative Office Regional Director regarding the status of
various matters. On several occasions, respondent failed to report, as
required by MCR 8.107, all matters that remained undecided for more than
four months from the date submitted to respondent. After a January 2007
implementation plan was put in place, respondent failed to report all
undecided matters to the State Court Administrative Office. Respondent’s
failure to promptly dispatch her judicial duties constituted misconduct on
the bench that was prejudicial to the administration of justice.
The standards set forth in Brown are being applied to the following
conclusions of the Judicial Tenure Commission, which we adopt as our own:

The facts asserted in the Formal Complaint and established by

the parties’ stipulation in this matter show, by a preponderance of
the evidence, that Respondent breached the standards of judicial
conduct and is responsible for all of the following as alleged in the
Formal Complaint:
Misconduct in office as defined by the Michigan Constitution of
1963, as amended, Article VI, § 30 and MCR 9.205;
Conduct clearly prejudicial to the administration of justice, as
defined by the Michigan Constitution of 1963, as amended, Article
VI, § 30 and MCR 9.205;
Persistent neglect in the performance of judicial duties, in
violation of MCR 9.205(B)(1)(b);
Failure to establish, maintain, enforce and personally observe
high standards of conduct so that the integrity and independence of
the judiciary may be preserved, and to bear in mind that the judicial
system is for the benefit of the litigant and the public, not the
judiciary, contrary to the Michigan Code of Judicial Conduct (MCJC),
Canon 1;
Irresponsible conduct which erodes public confidence in the
judiciary, in violation of MCJC, Canon 2A;
Failure to respect and observe the law and so conduct herself at
all times in a manner which would enhance the public’s confidence
in the integrity and impartiality of the judiciary contrary to MCJC,
Canon 2B;
Failure to promptly dispose of the business of the court,
contrary to MCJC, Canon 3A(5) (Count I only);
1204 482 MICHIGAN REPORTS
Failure to diligently discharge administrative responsibilities,
maintain professional competence in judicial administration, and
facilitation [sic] the performance of the administrative responsi-
bilities of other judges and court officials, contrary to MCJC,
Canon 3B(1) (Count II only); and
Conduct that exposes the legal profession or courts to obloquy,
contempt, censure or reproach, contrary to MCR 9.104(A)(2).

JTC: Formal Complaint No. 83.

Orders Entered September 23, 2008:
PROPOSED AMENDMENT OF RULE 7.205 OF THE MICHIGAN COURT RULES.
On order of the Court, this is to advise that the Court is considering
two alternative amendments of Rule 7.205 of the Michigan Court Rules.
Before determining whether either of the proposals should be adopted,
changed before adoption, or rejected, this notice is given to afford
interested persons the opportunity to comment on the form or the
merits of the proposals or to suggest alternatives. The Court welcomes
the views of all. This matter 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 either
proposal in its present form.

[The present language would be amended as indicated below:]

ALTERNATIVE A

RULE 7.205. APPLICATION FOR LEAVE TO APPEAL.

(A)-(E) [Unchanged.]
(F) Late Appeal.
(1)-(2) [Unchanged.]
(3) Except as provided in subrule (F)(4), leave to appeal may not be
granted if an application for leave to appeal is filed more than 12 months
after the later of:
(a) [Unchanged.]
(b) entry of the order or judgment to be appealed from, but if a motion
for new trial, a motion for rehearing or reconsideration, or a motion for
other relief from the order or judgment appealed was filed within the
initial 21-day appeal period or within further time the trial court has
allowed for good cause during that 21-day period, then the 12 months are
counted from the entry of the order deciding the motion.
(c) The 12-month limitation period provided in subrule (F)(3) is tolled
for the period when an appeal is pending pursuant to a claim of appeal.
(4)-(5) [Unchanged.]
(G) [Unchanged.]
 SPECIAL ORDERS 1205
ALTERNATIVE B

RULE 7.205. APPLICATION FOR LEAVE TO APPEAL.

(A)-(E) [Unchanged.]
(F) Late Appeal.
(1)-(2) [Unchanged.]
(3) Except as provided in subrule (F)(4), leave to appeal may not be
granted if an application for leave to appeal is filed more than 12 months
after the later of:
(a) [Unchanged.]
(b) entry of the order or judgment to be appealed from, but if a motion
for new trial, a motion for rehearing or reconsideration, or a motion for
other relief from the order or judgment appealed was filed within the
initial 21-day appeal period or within further time the trial court has
allowed for good cause during that 21-day period, then the 12 months are
counted from the entry of the order deciding the motion.
(c) The 12-month limitation period provided in subrule (F)(3) is not
tolled for the period when an appeal is pending pursuant to a claim of
appeal, except as otherwise allowed by this rule.
(4)-(5) [Unchanged.]
(G) [Unchanged.]
Staff Comment: Alternative A would adopt the principle that the period
in which to file an application for delayed appeal pursuant to MCR
7.205(F) is tolled while a claim of appeal is pending.
Alternative B would clarify that the period in which to file an
application for delayed appeal pursuant to MCR 7.205(F) is not tolled
while a claim of appeal is pending, except as allowed by the rule.
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 January 1, 2009, at
P.O. Box 30052, Lansing, MI 48909, or [email protected].
When filing a comment, please refer to ADM File No. 2007-40. Your
comments and the comments of others will be posted at
www.courts.mi.gov/supremecourt/resources/administrative/index.htm.
PROPOSED AMENDMENT OF RULE 2.112 OF THE MICHIGAN COURT RULES. On
order of the Court, this is to advise that the Court is considering an
amendment of Rule 2.112 of the Michigan Court Rules. Before 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.
1206 482 MICHIGAN REPORTS
[The present language would be amended as indicated below:]
RULE 2.112. PLEADING SPECIAL MATTERS.
(A)-(J)[ Unchanged.]
(K) Fault of Nonparties; Notice.
(1) Applicability. This rule applies to actions based on tort or another
legal theory seeking damages for personal injury, property damage, andor
wrongful death to which MCL 600.2957 and MCL 600.6304, as amended
by 1995 PA 249, apply.
(2)-(4)[Unchanged.]
(L)-(M) [Unchanged.]
Staff Comment: The proposed amendment of MCR 2.112 would clarify
that the comparative negligence provisions apply to actions based on tort
or another legal theory seeking damages for personal injury, property
damage, or wrongful death. This language would more closely parallel the
statutory provisions of MCL 600.2957 and MCL 600.6304, as amended by
1995 PA 249.
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 January 1, 2009, at
P.O. Box 30052, Lansing, MI 48909, or [email protected].
When filing a comment, please refer to ADM File No. 2007-41. Your
comments and the comments of others will be posted at
www.courts.mi.gov/supremecourt/resources/administrative/index.htm.
PROPOSED AMENDMENT OF RULES 7.302, 7.314, AND 7.316 OF THE MICHIGAN
COURT RULES. On order of the Court, this is to advise that the Court is
considering amendments of Rules 7.302, 7.314, and 7.316 of the Michigan
Court Rules. Before determining whether the proposals should be
adopted, changed before adoption, or rejected, this notice is given to
afford interested persons the opportunity to comment on the form or the
merits of the proposals or to suggest alternatives. The Court welcomes
the views of all. This matter also will be considered at a public hearing.
The notices and agendas for public hearings are posted at
www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.

[The present language would be amended as indicated below:]

RULE 7.302. APPLICATION FOR LEAVE TO APPEAL.
(A)-(E)[Unchanged.]
(F) If, on its own initiative or on a party’s motion, the court concludes
that a brief does not substantially comply with the requirements of this
rule, it may order the party who filed the brief to file a supplemental brief
within a specified time correcting the deficiencies, or it may strike the
nonconforming brief.
 SPECIAL ORDERS 1207
(F)-(H)[Unchanged but relettered (G)-(I).]
RULE 7.314 APPEALS IN WHICH NO PROGRESS HAS BEEN MADE.
(A)-(B)[Unchanged.]
(C) The court may dismiss an appeal, application, or an original
proceeding for lack of jurisdiction or failure of a party to pursue the case
in conformity with the rules.
RULE 7.316. MISCELLANEOUS RELIEF OBTAINABLE IN SUPREME COURT.
(A) Relief Obtainable. The Supreme Court may, at any time, in
addition to its general powers:
(1) exercise any or all of the powers of amendment of the court or
tribunal below;
(2) on reasonable notice as it may require, allow substitution of
parties by reason of marriage, death, bankruptcy, assignment, or any
other cause; allow new parties to be added or parties to be dropped; or
allow parties to be rearranged as appellants or appellees;
(3) permit the reasons or grounds of appeal to be amended or new
grounds to be added;
(4) permit the transcript or record to be amended by correcting errors
or adding matters which should have been included;
(5) adjourn the case until further evidence is taken and brought before
it, as the Court may deem necessary in order to do justice;
(6) draw inferences of fact;
(7) enter any judgment or order that ought to have been entered, and
enter other and further orders and grant relief as the case may require; or
(8) if a judgment notwithstanding the verdict is set aside on appeal,
grant a new trial or other relief as it deems just.
(9) dismiss an appeal, application, or an original proceeding for lack of
jurisdiction or failure of a party to pursue the case in conformity with the
rules.
(B)-(D)[Unchanged.]
Staff Comment: These proposals would give the Supreme Court the
authority to correct a deficient brief or to strike a nonconforming brief,
similar to the authority given the Court of Appeals in MCR 7.212(I). The
proposals would also allow the Supreme Court to dismiss a case in which
a party failed to pursue the case in conformity with the rules.
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 January 1, 2009, at
P.O. Box 30052, Lansing, MI 48909, or [email protected].
When filing a comment, please refer to ADM File No. 2007-42. Your
comments and the comments of others will be posted at
www.courts.mi.gov/supremecourt/resources/administrative/index.htm.
Orders Entered October 14, 2008:
PROPOSED AMENDMENT OF RULES 3.901, 3.903, 3.921, 3.965, 3.975, 3.976,
3.977, AND 3.978, AND NEW RULE 3.979 OF THE MICHIGAN COURT RULES. On
1208 482 MICHIGAN REPORTS
order of the Court, this is to advise that the Court is considering an
amendment of Rules 3.901, 3.903, 3.921, 3.965, 3.975, 3.976, 3.977, and
3.978, and new Rule 3.979 of the Michigan Court Rules. Before deter-
mining whether the proposal should be adopted, changed before adop-
tion, or rejected, this notice is given to afford interested persons the
opportunity to comment on the form or the merits of the proposal or to
suggest alternatives. The Court welcomes the views of all. This matter
also will be considered at a public hearing. The notices and agendas for
public hearings are posted at www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.

[The present language would be amended as indicated below:]

RULE 3.901. APPLICABILITY OF RULES.
(A) [Unchanged.]
(B) Application. Unless the context otherwise indicates:
(1) MCR 3.901-3.928, 3.980, and 3.991-3.993 apply to delinquency
proceedings and child protective proceedings;
(2) MCR 3.931-3.950 apply only to delinquency proceedings;
(3) MCR 3.951-3.956 apply only to designated proceedings;
(4) MCR 3.961-3.9783.979 apply only to child protective proceedings;
(5) MCR 3.981-3.989 apply only to minor personal protection order
proceedings.
RULE 3.903. DEFINITIONS.
(A) General Definitions. When used in this subchapter, unless the
context otherwise indicates:
(1)-(2)[Unchanged.]
(3) “Confidential file” means:
(a) [Unchanged.]
(b) the contents of a social file maintained by the court, including
materials such as
(i)-(vi) [Unchanged from the language of the September 30, 2008,
order, which will become effective January 1, 2009.]
(vii) information regarding the identity or location of a foster parent,
preadoptive parent, or relative caregiver, or juvenile guardian.
(4)-(10)[Unchanged.]
(11) “Guardian” means a person appointed as guardian of a child by
a Michigan court pursuant to MCL 700.5204 or 700.5205, by a court of
another state under a comparable statutory provision, or by parental or
testamentary appointment as provided in MCL 700.5202, and a juvenile
guardian appointed pursuant to MCL 712A.19a or MCL 712A.19c.
(12) “Juvenile Code” means 1944 (1st Ex Sess) PA 54, MCL 712A.1 et
seq., as amended.
(13) “Juvenile Guardian” means a person appointed juvenile guardian
of a child by a Michigan court pursuant to MCL 712A.19a or MCL
712A.19c. A juvenile guardianship is distinct from a guardianship autho-
rized under the Estates and Protected Individuals Code.
 SPECIAL ORDERS 1209
(1413)-(2726)[Unchanged but renumbered.]
(B)-(E)[Unchanged.]
RULE 3.921. PERSONS ENTITLED TO NOTICE.
(A)-(C)[Unchanged]
(D) Juvenile Guardianships. In a juvenile guardianship, the following
persons shall be entitled to notice:
(1) the child, if 11 years old or older;
(2) the Department of Human Services;
(3) the parents of the child, unless parental rights over the child have
been terminated;
(4) the juvenile guardian;
(5) any court that previously had jurisdiction over the child in a child
protective proceeding, if different than the court that entered an order
authorizing a juvenile guardianship;
(6) the attorneys for any party;
(7) the prosecuting attorney, if the prosecuting attorney has appeared
in the case;
(8) any tribal leader, if there is an Indian tribe affiliation;
(9) any other person the court may direct to be notified.
(E)(D) [Relettered but otherwise unchanged.]
RULE 3.965 PRELIMINARY HEARING.
(A)-(D) [Unchanged.]
(E) Advice; Initial Service Plan. If placement is ordered, the court
must, orally or in writing, inform the parties:
(1) that the agency designated to care and supervise the child will
prepare an initial service plan no later than 30 days after the placement;
(2) that participation in the initial service plan is voluntary unless
otherwise ordered by the court;
(3) that the general elements of an initial service plan include:
(a) the background of the child and the family,
(b) an evaluation of the experiences and problems of the child,
(c) a projection of the expected length of stay in foster care, and
(d) an identification of specific goals and projected time frames for
meeting the goals; and
(4) that, on motion of a party, the court will review the initial service
plan and may modify the plan if it is in the best interests of the child; and.
(5) that the case may be screened to determine its eligibility for
concurrent planning.
The court shall direct the agency to identify, locate, and consult with
relatives to determine if placement with a relative would be in the child’s
best interests, as required by MCL 722.954a(2). In a case to which MCL
712A.18f(6) applies, the court shall require the agency to provide the name
and address of the child’s attending physician of record or primary care
physician.
RULE 3.975. POST-DISPOSITIONAL PROCEDURES: CHILD IN FOSTER CARE.
(A)-(E) [Unchanged.]
(F) Criteria.
1210 482 MICHIGAN REPORTS
(1) Review of Case Service Plan. The court, in reviewing the progress
toward compliance with the case service plan, must consider:
(a) the services provided or offered to the child and parent, guardian,
or legal custodian of the child;
(b) whether the parent, guardian, or legal custodian has benefited
from the services provided or offered;
(c) the extent of parenting time or visitation, including a determina-
tion regarding the reasons either was not frequent or never occurred;
(d) the extent to which the parent, guardian, or legal custodian complied
with each provision of the case service plan, prior court orders, and any
agreement between the parent, guardian, or legal custodian and the agency;
(e) any likely harm to the child if the child continues to be separated
from his or her parent, guardian, or custodian; and
(f) any likely harm to the child if the child is returned to the parent,
guardian, or legal custodian.
(2) Progress Toward Returning Child Home. The court must decide
the extent of the progress made toward alleviating or mitigating condi-
tions that caused the child to be, and to remain, in foster care. The court
shall also review the concurrent plan, if applicable.
(G)-(H) [Unchanged.]
RULE 3.976. PERMANENCY PLANNING HEARINGS.
(A)-(C) [Unchanged.]
(D) Hearing Procedure; Evidence.
(1) Procedure. Each permanency planning hearing must be conducted
by a judge or a referee. Paper reviews, ex parte hearings, stipulated
orders, or other actions that are not open to the participation of (a) the
parents of the child, unless parental rights have been terminated; (b) the
child, if of appropriate age; and (c) foster parents or preadoptive parents,
if any, are not permanency planning hearings.
(2) Evidence. The Michigan Rules of Evidence do not apply, other than
those with respect to privileges, except to the extent such privileges are
abrogated by MCL 722.631. At the permanency planning hearing all
relevant and material evidence, including oral and written reports, may
be received by the court and may be relied upon to the extent of its
probative value. The court must consider any written or oral information
concerning the child from the child’s parent, guardian, custodian, foster
parent, child caring institution, or relative with whom the child is placed,
in addition to any other evidence offered at the hearing. The court shall
obtain the child’s views regarding the permanency plan in a manner
appropriate to the child’s age. The parties must be afforded an opportu-
nity to examine and controvert written reports received by the court and
may be allowed to cross-examine individuals who made the reports when
those individuals are reasonably available.
(E) Determinations; Permanency Options.
(1) In the case of a child who will not be returned home, the court shall
consider in-state and out-of-state placement options. In the case of a child
placed out-of-state, the court shall determine whether the out-of-state
placement continues to be appropriate and in the child’s best interest.
The court shall ensure that the agency is providing appropriate services
to assist a child who will transition from foster care to independent living.
 SPECIAL ORDERS 1211
(1)(2) Determining Whether to Return Child Home. At the conclusion of
a permanency planning hearing, the court must order the child returned
home unless it determines that the return would cause a substantial risk of
harm to the life, the physical health, or the mental well-being of the child.
Failure to substantially comply with the case service plan is evidence that
the return of the child to the parent may cause a substantial risk of harm to
the child’s life, physical health, or mental well-being. In addition, the court
shall consider any condition or circumstance of the child that may be
evidence that a return to the parent would cause a substantial risk of harm
to the child’s life, physical health, or mental well-being.
(2)(3) Continuing Foster Care Pending Determination on Termination of
Parental Rights. If the court determines at a permanency planning hearing
that the child should not be returned home, it must may order the agency to
initiate proceedings to terminate parental rights., unless the agency dem-
onstrates to the court and the court finds that it is clearly not in the best
interests of the child to presently begin proceedings to terminate parental
rights. The order must specify the time within which the petition must be
filed, which may not be more than 42 days after the date of the order. Except
as otherwise provided in this subsection, if the child has been in foster care
under the responsibility of the state for 15 of the most recent 22 months, the
court shall order the agency to initiate proceedings to terminate parental
rights. If the court orders the agency to initiate proceedings to terminate
parental rights, the order must specify the time within which the petition
must be filed, which may not be more than 42 days after the date of the
order. The court is not required to order the agency to initiate proceedings to
terminate parental rights if one or more of the following apply:
(a) The child is being cared for by relatives.
(b) The case service plan documents a compelling reason for determining
that filing a petition to terminate parental rights would not be in the best
interest of the child. A compelling reason not to file a petition to terminate
parental rights includes, but is not limited to, any of the following:
(i) Adoption is not the appropriate permanency goal for the child.
(ii) No grounds to file a petition to terminate parental rights exist.
(iii) The child is an unaccompanied refugee minor as defined in 45
CFR 400.111.
(iv) There are international legal obligations or compelling foreign
policy reasons that preclude terminating parental rights.
(c) The state has not provided the child’s family, during the period set
in the case service plan, with the services the state considers necessary
for the child’s safe return to his or her home, if reasonable efforts to
reunify the family are required.
(3)(4) Other Permanency Plans. If the court does not return the child
to the parent, guardian, or legal custodian, and if the agency demon-
strates that termination of parental rights is not in the best interest of
the child, the court may
(a) continue the placement of the child in foster care for a limited period
to be set by the court while the agency continues to make reasonable efforts
to finalize the court-approved permanency plan for the child, or
(b) place the child with a fit and willing relative, or
(c) upon a showing of compelling reasons, place the child in an
alternative planned permanent living arrangement, or
1212 482 MICHIGAN REPORTS
(d) appoint a juvenile guardian for the child pursuant to MCL
712A.19a and MCR 3.979.
The court must articulate the factual basis for its determination in
the court order adopting the permanency plan.
RULE 3.977. TERMINATION OF PARENTAL RIGHTS.
(A)-(C) [Unchanged.]
(D) Suspension of Parenting Time. If a petition to terminate parental
rights to a child is filed, the court may suspend parenting time for a parent
who is a subject of the petition. is automatically suspended and, except as
otherwise provided in this subsection, remains suspended at least until a
decision is issued on the termination petition. If a parent whose parenting
time is suspended establishes, and the court determines, that parenting time
will not harm the child, the court may order parenting time in the amount
and under the conditions the court determines appropriate.
(E) Termination of Parental Rights at the Initial Disposition. The
court shall order termination of the parental rights of a respondent at the
initial dispositional hearing held pursuant to MCR 3.973, and shall order
that additional efforts for reunification of the child with the respondent
shall not be made, if
(1) the original, or amended, petition contains a request for termination;
(2) at the trial or plea proceedings, the trier of fact finds by a prepon-
derance of the evidence that one or more of the grounds for assumption of
jurisdiction over the child under MCL 712A.2(b) have been established and
that termination of parental rights is in the child’s best interest;
(3) at the initial disposition hearing, the court finds on the basis of
clear and convincing legally admissible evidence that had been intro-
duced at the trial or plea proceedings, or that is introduced at the
dispositional hearing, that one or more facts alleged in the petition:
(a) are true, and
(b) establish grounds for termination of parental rights under MCL
712A.19b(3)(a), (b), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), or (n).
; unless the court finds by clear and convincing evidence, in accor-
dance with the rules of evidence as provided in subrule (G)(2), that
termination of parental rights is not in the best interests of the child.
(F) Termination of Parental Rights on the Basis of Different Circum-
stances. The court may take action on a supplemental petition that seeks to
terminate the parental rights of a respondent over a child already within the
jurisdiction of the court on the basis of one or more circumstances new or
different from the offense that led the court to take jurisdiction.
(1) The court must order termination of the parental rights of a
respondent, and must order that additional efforts for reunification of the
child with the respondent must not be made, if
(a) the supplemental petition for termination of parental rights
contains a request for termination;
(b) at the hearing on the supplemental petition, the court finds on the
basis of clear and convincing legally admissible evidence that one or more
of the facts alleged in the supplemental petition:
(i) are true; and
(ii) come within MCL 712A.19b(3)(a), (b), (c)(ii), (d), (e), (f), (g), (i), (j),
(k), (l), (m), or (n); and
 SPECIAL ORDERS 1213
(iii) that termination of parental rights is in the child’s best interest.
unless the court finds by clear and convincing evidence, in accordance
with the rules of evidence as provided in subrule G(2), that termination
of parental rights is not in the best interests of the child.
(2) Time for Hearing on Petition. The hearing on a supplemental petition
for termination of parental rights under this subrule shall be held within 42
days after the filing of the supplemental petition. The court may, for good
cause shown, extend the period for an additional 21 days.
(G) Termination of Parental Rights; Other. If the parental rights of a
respondent over the child were not terminated pursuant to subrule (E) at
the initial dispositional hearing or pursuant to subrule (F) at a hearing on a
supplemental petition on the basis of different circumstances, and the child
is within the jurisdiction of the court, the court must, if the child is in foster
care, or may, if the child is not in foster care, following a dispositional review
hearing under MCR 3.975, a progress review under MCR 3.974, or a
permanency planning hearing under MCR 3.976, take action on a supple-
mental petition that seeks to terminate the parental rights of a respondent
over the child on the basis of one or more grounds listed in MCL
712A.19b(3).
(1) Time.
(a) Filing Petition. The supplemental petition for termination of
parental rights may be filed at any time after the initial dispositional
review hearing, progress review, or permanency planning hearing, which-
ever occurs first.
(b) Hearing on Petition. The hearing on a supplemental petition for
termination of parental rights under this subrule must be held within 42
days after the filing of the supplemental petition. The court may, for good
cause shown, extend the period for an additional 21 days.
(2) Evidence. The Michigan Rules of Evidence do not apply, other than
those with respect to privileges, except to the extent such privileges are
abrogated by MCL 722.631. At the hearing all relevant and material
evidence, including oral and written reports, may be received by the court
and may be relied upon to the extent of its probative value. The parties must
be afforded an opportunity to examine and controvert written reports so
received by the court and shall be allowed to cross-examine individuals who
made the reports when those individuals are reasonably available.
(3) Order. The court must order termination of the parental rights of
a respondent and must order that additional efforts for reunification of
the child with the respondent must not be made, if the court finds on the
basis of clear and convincing evidence admitted pursuant to subrule
(G)(2) that one or more facts alleged in the petition
(a) are true, and
(b) come within MCL 712A.19b(3), and
(c) that termination of parental rights is in the child’s best interest.
unless the court finds by clear and convincing evidence that termination
of parental rights to the child is not in the best interest of the child.
(H)-(J) [Unchanged.]
RULE 3.978. POST-TERMINATION REVIEW HEARINGS.
(A)-(B) [Unchanged.]
(C) Findings. The court must make findings on whether reasonable
1214 482 MICHIGAN REPORTS
efforts have been made to establish permanent placement for the child,
and may enter such orders as it considers necessary in the best interest
of the child, including appointment of a juvenile guardian pursuant to
MCL 712A.19c and MCR 3.979.
(D) [Unchanged.]
[MCR 3.979 is a new rule.]

RULE 3.979 JUVENILE GUARDIANSHIPS.

(A) Appointment of Juvenile Guardian; Process. If the court determines
at a post-termination review hearing or a permanency planning hearing that
it is in the child’s best interest, the court may appoint a juvenile guardian for
the child pursuant to MCL 712A.19a or MCL 712A.19c.
(1) Under MCR 3.979(A), the court shall order the Department of
Human Services to:
(a) conduct a criminal record check and central registry clearance of the
residents of the home and submit the results to the court within 7 days; and
(b) perform a home study with a copy to be submitted to the court
within 28 days, unless a home study has been performed within the
immediately preceding 365 days, in which case a copy of that home study
shall be submitted to the court.
(2) If a child for whom a juvenile guardianship is proposed is in foster
care, the court shall continue the child’s placement and order the
information required above about the proposed juvenile guardian. If the
information required above has already been provided to the court, the
court may issue an order appointing the proposed juvenile guardian
pursuant to subrule (B).
(3) If the parental rights over a child who is the subject of a proposed
juvenile guardianship have been terminated, the court shall not appoint
a guardian without the written consent of the Michigan Children’s
Institute (MCI) superintendent. The court may order the Department of
Human Services to seek the consent of the MCI superintendent. The
consent must be filed with the court no later than 28 days after the
permanency planning hearing or the post-termination review hearing.
(a) If a person or agency denied consent believes that the decision to
withhold consent by the MCI superintendent is arbitrary or capricious,
the person or agency may file a motion with the court. A motion under
this subsection shall contain information regarding both of the following:
(i) the specific steps taken by the person or agency to obtain the
consent required and the results, if any, and
(ii) the specific reasons why the person or agency believes that the
decision to withhold consent was arbitrary or capricious.
(b) If a motion alleging that the MCI superintendent’s failure to
consent was arbitrary or capricious, the court shall set a hearing date and
ensure that notice is provided to the MCI superintendent and all parties
entitled to notice under MCR 3.921.
(c) If a hearing is held and the court finds by clear and convincing
evidence that the decision to withhold consent was arbitrary or capri-
cious, the court may approve the guardianship without the consent of the
MCI superintendent.
The court shall determine the continuing necessity and appropriate-
ness of the child’s placement.
 SPECIAL ORDERS 1215
(B) Order Appointing Juvenile Guardian. After receiving the infor-
mation ordered by the court under subsection (A)(1), and after finding
that appointment of a juvenile guardian is in the child’s best interest, the
court may enter an order appointing a juvenile guardian. The order
appointing a juvenile guardian shall be on a form approved by the state
court administrator. Within 7 days of receiving the information, the court
shall enter an order appointing a juvenile guardian or schedule the
matter for a hearing.
(1) Acceptance of Appointment. A juvenile guardian appointed by the
court shall file an acceptance of appointment with the court on a form
approved by the state court administrator.
(2) Letters of Authority. On the filing of the acceptance of appoint-
ment, the court shall issue letters of authority on a form approved by the
state court administrator. Any restriction or limitation of the powers of
the juvenile guardian must be set forth in the letters of authority.
(3) Certification. Certification of the letters of authority and a
statement that on a given date the letters are in full force and effect may
appear on the face of copies furnished to the juvenile guardian or
interested persons.
(4) Address of Juvenile Guardian; Notice. The juvenile guardian must
keep the court informed in writing within 7 days of any change in the
juvenile guardian’s address. Notice of a proceeding relating to the
juvenile guardianship shall be delivered or mailed to the juvenile guard-
ian by first-class mail at the juvenile guardian’s address as listed in the
court records and to his or her address as then known to the petitioner.
Any notice mailed first class by the court to the juvenile guardian’s last
address on file shall be considered notice to the juvenile guardian.
(C) Court Jurisdiction; Review Hearings; Lawyer Guardian ad Litem.
The court’s jurisdiction over a juvenile guardianship shall continue until
terminated by court order. The court’s jurisdiction over a juvenile under
section 2(b) of the Probate Code, MCL 712A.2(b), and the jurisdiction of the
MCI under section 3 or 1935 PA 220, MCL 400.203, shall be terminated after
the court appoints a juvenile guardian under this section and conducts a
review hearing pursuant to MCR 3.975 when parental rights to the child
have not been terminated, or a review hearing pursuant to MCR 3.978 when
parental rights to the child have been terminated. The review hearing
following appointment of the juvenile guardian must be conducted within 91
days of the most recent review hearing. The appointment of the lawyer-
guardian ad litem in the child protective proceeding terminates upon entry
of the order terminating the court’s jurisdiction pursuant to MCL 712A.2(b).
The court may reappoint the lawyer-guardian ad litem or may appoint a new
lawyer-guardian ad litem if the court is satisfied that such action is
warranted.
(D) Court Responsibilities.
(1) Annual Review. The court shall conduct a review of a juvenile
guardianship annually. The review shall be commenced within 63 days after
the anniversary date of the appointment of the guardian. The court may
conduct a review of a juvenile guardianship at any time it deems necessary.
(2) Investigation. The court shall appoint the Department of Human
Services or another person to conduct an investigation of the juvenile
guardianship of a child when deemed appropriate by the court or upon
petition by the Department of Human Services or an interested person.
1216 482 MICHIGAN REPORTS
The investigator shall file a written report with the court within 28 days
of such appointment. The report shall include a recommendation regard-
ing whether the juvenile guardianship should continue or be modified
and whether a hearing should be scheduled. If the report recommends
modification, the report shall state the nature of the modification.
(3) Judicial Action. After informal review of the report, the court shall
enter an order denying the modification or set a date for a hearing to be
held within 28 days.
(E) Duties and Authority of Guardian Appointed to Juvenile Guard-
ianship. A juvenile guardianship approved under these rules is autho-
rized by the Probate Code and is distinct from a guardianship authorized
under the Estates and Protected Individuals Code.
(1) Report of Juvenile Guardian. A juvenile guardian shall file a
written report annually within 56 days after the anniversary of appoint-
ment and at other times as the court may order. Reports must be on a
form approved by the state court administrator. The juvenile guardian
must serve the report on the persons listed in MCR 3.921.
(2) Petition for Conservator. At the time of appointing a juvenile
guardian or during the period of the juvenile guardianship, the court
shall determine whether there would be sufficient assets under the
control of the juvenile guardian to require a conservatorship. If so, the
court shall order the juvenile guardian to petition the probate court for a
conservator pursuant to MCL 700.5401 et seq.
(F) Revocation or Termination of Guardianship.
(1) Motion or Petition.
(a) Revocation of Juvenile Guardianship. The court shall, on its own
motion or upon petition from the Department of Human Services or the
child’s lawyer-guardian ad litem, hold a hearing to determine whether a
juvenile guardianship established under this section shall be revoked.
(b) Termination of Juvenile Guardian and Appointment of Successor.
A juvenile guardian or other interested person may petition the court for
permission to terminate the guardianship. A petition may include a
request for appointment of a successor juvenile guardian.
(2) Hearing. If a petition for revocation or termination is filed with the
court, the court shall hold a hearing within 28 days to determine whether
to grant the petition to revoke or terminate the juvenile guardianship.
(3) Investigation and Report. In preparation for the revocation or
termination hearing, the court shall order the Department of Human
Services to perform an investigation and file a written report of the
investigation. The report shall be filed with the court no later than 7 days
before the hearing. The report shall include the reasons for terminating
a juvenile guardianship or revoking a juvenile guardianship, and a
recommendation regarding temporary placement, if necessary.
(4) Notice. The court shall ensure that interested persons are given
notice of the hearing as provided in MCR 3.920 and MCR 3.921. The
court may proceed in the absence of interested persons provided that
proper notice has been given. The notice must inform the interested
persons of their opportunity to participate in the hearing and that any
information they wish to provide should be submitted in advance to the
court, the agency, the lawyer-guardian ad litem for the child, and an
attorney for one of the parties.
 SPECIAL ORDERS 1217
(5) Action Following Motion or Petition to Revoke Juvenile Guard-
ianship. After notice and a hearing on a petition to revoke the juvenile
guardianship, if the court finds by a preponderance of evidence that
continuation of the juvenile guardianship is not in the child’s best
interest, and upon finding that it is contrary to the welfare of the child to
be placed in or remain in the juvenile guardian’s home and that
reasonable efforts were made to prevent removal, the court shall revoke
the juvenile guardianship. The court shall enter an order revoking the
juvenile guardianship and placing the child under the care and supervi-
sion of the Department of Human Services on a form approved by the
state court administrator. Jurisdiction over the child under MCL
712A.2(b) is reinstated under the previous child protective proceeding
upon entry of the order revoking the juvenile guardianship.
(6) Action Following Petition to Terminate Appointment of Juvenile
Guardian. After notice and a hearing on a petition to terminate the
appointment of a juvenile guardian, if the court finds it is in the child’s
best interest to terminate the appointment and if there is:
(a) no successor, the court shall proceed according to subrule (F)(5); or
(b) a successor, the court shall terminate the appointment of the
juvenile guardian and proceed with an investigation and appointment of
a successor juvenile guardian in accordance with the requirements of this
rule, and the court’s jurisdiction over the juvenile guardianship shall
continue. An order terminating a juvenile guardianship and appointing a
successor juvenile guardian shall be entered on a form approved by the
state court administrator
(7) Dispositional Review Hearing. The court shall hold a dispositional
review hearing pursuant to MCR 3.973 or MCR 3.978 within 42 days of
revocation of a juvenile guardianship. The Department of Human Services
shall prepare an updated case service plan and file it with the court no later
than 7 days before the hearing. Subsequent post-dispositional review hear-
ings shall be scheduled in conformity with MCR 3.974 and MCR 3.975.
Staff Comment: The proposed amendments of Rules 3.901, 3.903, 3.921,
3.965, 3.975, 3.976, 3.977, and 3.978, and new rule 3.979 of the Michigan
Court Rules reflect the recent enactment of 2008 PA 199-203.
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 February 1, 2009,
at P.O. Box 30052, Lansing, MI 48909, or [email protected].
When filing a comment, please refer to ADM File No. 2008-29.
Your comments and the comments of others will be posted at
www.courts.mi.gov/supremecourt/resources/administrative/index.htm

Orders Entered November 25, 2008:

PROPOSED AMENDMENT OF RULES 2.403, 2.404, 2.410, 2.411, AND 3.216 OF

THE MICHIGAN COURT RULES. On the order of the Court, this is to advise that
the Court is considering amendment of Rules 2.403, 2.404, 2.410, 2.411,
and 3.216 of the Michigan Court Rules. Please note that the order
1218 482 MICHIGAN REPORTS
contains alternative options for the proposed language of MCR
2.403(M)(1). Before determining whether the proposal should be
adopted, changed before adoption, or rejected, this notice is given to
afford interested persons the opportunity to comment on the form or the
merits of the proposal or to suggest alternatives. The Court welcomes the
views of all. This matter also will be considered at a public hearing. The
notices and agendas for public hearings are posted at
www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.

[The present language would be amended as indicated below:]

RULE 2.403. CASE EVALUATION.

(A) Scope and Applicability of Rule.
(1) [Unchanged.]
(2) Case evaluation of tort cases filed in circuit court is mandatory
beginning with actions filed after the effective dates of Chapters 49 and
49A of the Revised Judicature Act, as added by 1986 PA 178.; however,
the court may except an action from case evaluation on motion for good
cause shown if it finds that case evaluation of that action would be
inappropriate.
(3) A court may except all or part of an action from case evaluation for
good cause shown on motion or by stipulation of the parties, or by the
court with the consent of the parties, if it finds that case evaluation of
that action or part thereof would be inappropriate.
(4) [Renumbered but unchanged.]
(B) Selection of Cases.
(1) The judge to whom an action is assigned or the chief judge may
select it for case evaluation by written order no earlier than 91 daysafter
the filing of the answer
(a) on written stipulation by the parties,
(b) on written motion by a party, or
(c) on the judge’s own initiative.
(2) Selection of an action for case evaluation has no effect on the
normal progress of the action toward trial.
(C)-(G) [Unchanged.]
(H) Fees.
(1) Within 14 days after the mailing of the notice of the case
evaluation hearing, unless otherwise ordered by the court, eEach party
must send to the ADR clerk a check for $75$150 made payable in the
manner and within the time specified in the notice of the case evaluation
hearing. However, if a judge is a member of the panel, the fee is $50 $100.
If the order for case evaluation directs that payment be made to the ADR
clerk, Tthe ADR clerk shall arrange payment to the case evaluators.
Except by stipulation and court order, the parties may not make any
other payment of fees or expenses to the case evaluators than that
provided in this subrule.
 SPECIAL ORDERS 1219
(2) Only a single fee is required of each party, even where there are
counterclaims, cross-claims, or third-party claims. A person entitled to a
fee waiver under MCR 2.002 is entitled to a waiver of fees under this rule.
(3) If one claim is derivative of another (e.g., husband-wife, parent-
child) they must be treated as a single claim, with one fee to be paid and
a single award made by the case evaluators.
(4) In the case of multiple injuries to members of a single family, the
plaintiffs may elect to treat the action as involving one claim, with the
payment of one fee and the rendering of one lump sum award to be
accepted or rejected. If no such election is made, a separate fee must be
paid for each plaintiff, and the case evaluation panel will then make
separate awards for each claim, which may be individually accepted or
rejected.
(4)(5) Fees paid pursuant to subrule (H) shall be refunded to the
parties if
(a) the court sets aside the order submitting the case to case
evaluation or on its own initiative adjourns the case evaluation hearing,
or
(b) the parties notify the ADR clerk in writing at least 14 days before
the case evaluation hearing of the settlement, dismissal, or entry of
judgment disposing of the action, or of an order of adjournment on
stipulation or the motion of a party.
In the case of an adjournment, the fees shall not be refunded if the
adjournment order sets a new date for case evaluation. If case evaluation
is rescheduled at a later time, the fee provisions of subrule (H) apply
regardless of whether previously paid fees have been refunded. Penalties
for late filing of papers under subrule (I)(2) are not to be refunded.
(5) Fees paid pursuant to subrule (H) shall not be refunded to the
parties if
(a) in the case of an adjournment, the adjournment order sets a new
date for case evaluation and the fees are applied to the new date, or
(b) the request for and granting of adjournment is made within 14
days of the scheduled case evaluation, unless waived for good cause.
Penalties for late filing of papers under subrule (I)(2) are not to be
refunded.
(I) Submission of Summary and Supporting Documents.
(1) Unless otherwise provided in the notice of hearing, Aat least 14
days before the hearing, each party shall file with the ADR clerk 3 copies
of documents pertaining to the issues to be mediated and 3 copies of a
concise summary setting forth that party’s factual and legal position on
issues presented by the action, and shall serve one copy of the documents
and summary on each attorney of record. A copy of a proof of service must
be attached to the copies filed with the ADR clerk.
(a) serve a copy of the case evaluation summary and supporting
documents in accordance with MCR 2.107; and
(b) file a proof of service and three copies of a case evaluation
summary and supporting documents with the ADR clerk.
(2) Each Ffailure to timely file and serve the required materials
identified in subrule (1), with the ADR clerk or to serve copies on each
1220 482 MICHIGAN REPORTS
attorney of record by the required date and each subsequent filing of
supplemental materials within 14 days of the hearing, subjects the
offending attorney or party to a $150 penalty to be paid in the manner
specified in the notice of the case evaluation hearing. An offending
attorney shall not charge the penalty to the client, unless the client
agreed in writing to be responsible for the penalty.
(3) The case evaluation summary shall consist of a concise summary
setting forth that party’s factual and legal position on issues presented by
the action. Except as permitted by the court, the summary shall not
exceed 20 pages double spaced, exclusive of attachments. Quotations and
footnotes may be single spaced. At least one-inch margins must be used,
and printing shall not be smaller than 12-point font.
(J) [Unchanged.]
(K) Decision.
(1) [Unchanged.]
(2) Except as provided in subrule (H)(3), the evaluation must include
a separate award as to the each plaintiff’s claim against each defendant
and as to each cross-claim, counterclaim, or third-party claim that has
been filed in the action. For the purpose of this subrule, all such claims
filed by any one party against any other party shall be treated as a single
claim.
(3)-(5) [Unchanged.]
(L) [Unchanged.]
(M) Effect of Acceptance of Evaluation.

****Alternative A****

(1) If all the parties accept the panel’s evaluation, judgment will be
entered in accordance with the evaluation, unless the amount of the
award is paid within 28 days after notification of the acceptances, in
which case the court shall dismiss the action with prejudice. The
judgment or dismissal shall be deemed to dispose of all claims in the
action and includes all fees, costs, and interest to the date it is entered.
The judgment or dismissal shall not be deemed to dispose of claims that
have not accrued as of the date of the case evaluation hearing, including
cases involving rights to personal protection insurance benefits under
MCL 500.3101 et seq.

****Alternative B****

(1) If all the parties accept the panel’s evaluation, judgment will be
entered in accordance with the evaluation, unless the amount of the
award is paid within 28 days after notification of the acceptances, in
which case the court shall dismiss the action with prejudice. The
judgment or dismissal shall be deemed to dispose of all claims in the
action and includes all fees, costs, and interest to the date it is entered,
except for cases involving rights to personal protection insurance benefits
 SPECIAL ORDERS 1221
under MCL 500.3101 et seq, for which judgment or dismissal shall not be
deemed to dispose of claims that have not accrued as of the date of the
case evaluation hearing.
(2) If only a part of an action has been submitted to case evaluation
pursuant to subrule (A)(3) and all of the parties accept the panel’s
evaluation, the court shall enter an order disposing of only those claims.
(3) [Renumbered but unchanged.]
(N) [Unchanged.]
(O) Rejecting Party’s Liability for Costs.
(1)-(4) [Unchanged.]
(5) If the verdict awards equitable relief, costs may be awarded if the
court determines that
(a) taking into account both monetary relief (adjusted as provided in
subrule [O][3]) and equitable relief, the verdict is not more favorable to
the rejecting party than the evaluation or, in situations where both
parties have rejected the evaluation, the verdict in favor of the party
seeking costs is more favorable than the case evaluation, and
(b) it is fair to award costs under all of the circumstances.
(6) [Unchanged.]
(7) Costs shall not be awarded if the case evaluation award was not
unanimous. If case evaluation results in a nonunanimous award, a case
may be ordered to a subsequent case evaluation hearing conducted
without reference to the prior case evaluation award, or other alternative
dispute resolution process, at the expense of the parties, pursuant to
MCR 2.410(C)(1).
(8)-(11) [Unchanged.]
RULE 2.404. SELECTION OF CASE EVALUATION PANELS.
(A) [Unchanged.]
(B) Lists of Case Evaluators.
(1)-(4) [Unchanged.]
(5) Reapplication. Persons shall be placed on the list of case evaluators
for a fixed period of time, not to exceed seven 5 years, and must reapply
at the end of that time in the same manner directed by the court as
persons seeking to be added to the list.
(6)-(8) [Unchanged.]
(C) [Unchanged.]
(D) Supervision of Selection Process.
(1) The chief judge shall exercise general supervision over the
implementation of this rule and shall review the operation of the court’s
case evaluation plan at least annually to assure compliance with this rule.
In the event of non-compliance, the court shall take such action as is
needed. This action may include recruiting persons to serve as case
evaluators or changing the court’s case evaluation plan. The court shall
submit an annual report to the State Court Administrator on the
operation of the court’s case evaluation program on a form provided by
the State Court Administrator.
(2) [Unchanged.]
1222 482 MICHIGAN REPORTS
RULE 2.410. ALTERNATIVE DISPUTE RESOLUTION.
(A) [Unchanged.]
(B) ADR Plan.
(1)-(2) [Unchanged.]
(3) The plan may also provide for referral relationships with local
dispute resolution centers, including those affiliated with the Community
Dispute Resolution Program. In establishing a referral relationship with
centers or programs, courts, at a minimum, shall take into consideration
factors that include whether parties are represented by counsel, the
number and complexity of issues in dispute, the jurisdictional amount of
the cases to be referred, and the ability of the parties to pay for dispute
resolution services. The plan must preserve the right of parties to
stipulate to the selection of their own mediator under MCR 2.411(B)(1).
(4) [Unchanged.]
(C) Order for ADR.
(1) At any time, after consultation with the parties, the court may
order that a case be submitted to an appropriate ADR process. More than
one such order may be entered in a case.
(2)-(3) [Unchanged.]
(D)-(F) [Unchanged.]
RULE 2.411. MEDIATION.
(A) [Unchanged.]
(B) Selection of Mediator.
(1)-(3) [Unchanged.]
(4) The court shall not appoint, recommend, direct, or otherwise
influence a party’s or attorney’s selection of a mediator except as
provided pursuant to this rule. The court may recommend or advise
parties on the selection of a mediator only upon request of all parties by
stipulation in writing or orally on the record.
(4)(5) [Renumbered but unchanged.]
(C) [Unchanged.]
(D) Fees.
(1) A mediator is entitled to reasonable compensation based on an
hourly rate commensurate with the mediator’s experience and usual
charges for services performed.
(2)-(5) [Unchanged.]
(E) List of Mediators
(1) Application. An eligible person desiring tTo appear on a roster
serve as a mediator, an applicant may apply to the ADR clerk to be placed
on the court’s list of mediators. Application forms shall be available in the
office of the ADR clerk.
(a) The form shall include a certification that
(i) the applicant meets the requirements for service under the court’s
selection plan;
(ii) the applicant will not discriminate against parties or attorneys on
the basis of race, ethnic origin, gender, or other protected personal
characteristic; and
 SPECIAL ORDERS 1223
(iii) the applicant mediator will comply with the court’s ADR plan,
orders of the court regarding cases submitted to mediation, and the
standards of conduct adopted by the State Court Administrator under
subrule (G).
(b) The applicant shall indicate on the form the applicant’s hourly
rate for providing mediation services.
(c) The form shall include an optional section identifying the appli-
cant’s gender and racial/ethnic background.
(d) A Community Dispute Resolution Program center may appear on
a roster of mediators, provided that the center selects only mediators who
meet the qualifications of this rule or training requirements established
by the State Court Administrator to mediate cases ordered by the court.
(2) Review of Applications. The court’s ADR plan shall provide for a
person or committee to review applications annually, or more frequently
if appropriate, and compile a list of qualified mediators.
(a) Persons Applicants meeting the qualifications specified in this rule
shall be placed on the list of approved mediators. Approved mediators
shall be placed on the list for a fixed period, not to exceed 5 seven years,
and must reapply at the end of that time in the same manner as persons
seeking to be added to the list directed by the court.
(b) Selections shall be made without regard to race, ethnic origin, or
gender. Residency or principal place of business may not be a qualifica-
tion.
(c) The approved list and the applications of approved mediators,
except for the optional section identifying the applicant’s gender and
racial/ethnic background, shall be available to the public in the office of
the ADR clerk.
(d) An applicant may attach a résumé or biographical information to
the application.
(3)-(4) [Unchanged.]
(F) Qualifications of Mediators.
(1) [Unchanged.]
(2) General Civil Mediation. To be eligible to serve as a general civil
mediator, a person must meet the following minimum qualifications:
(a)-(b) [Unchanged.]
(c) Upon completion of the training required under subrule (F)(2)(a),
Oobserve two general civil mediation proceedings conducted by an
approved mediator, and conduct one general civil mediation to conclusion
under the supervision and observation of an approved mediator.
(3)-(5) [Unchanged.]
(G) [Unchanged.]
RULE 3.216. DOMESTIC RELATIONS MEDIATION.
(A)-(D) [Unchanged.]
(E) Selection of Mediator.
(1)-(2) [Unchanged.]
(3) If the parties have not stipulated to a mediator:,
1224 482 MICHIGAN REPORTS
(a) the parties must indicate whether they prefer a mediator who is
willing to conduct evaluative mediation. Failure to indicate a preference
will be treated as not requesting evaluative mediation.
(b) (4)If the parties have not stipulated to a mediator, the judge may
recommend, but not appoint one. If the judge does not make a recom-
mendation, or if the recommendation is not accepted by the parties, the
ADR clerk will assign a mediator from the list of qualified mediators
maintained under subrule (F). The assignment shall be made on a
rotational basis, except that if the parties have requested evaluative
mediation, only a mediator who is willing to provide and evaluation may
be assigned.
(4) The court shall not appoint, recommend, direct, or otherwise
influence a party’s or attorney’s selection of a mediator except as
provided pursuant to this rule. The court may recommend or advise
parties on the selection of a mediator only upon request of all parties by
stipulation in writing or orally on the record.
(5) [Unchanged.]
(F) List of Mediators.
(1) Application. An applicant eligible person desiring to serve as a
domestic relations mediator may apply to the ADR clerk to be placed on
the court’s list of mediators. Application forms shall be available in the
office of the ADR clerk.
(a) The form shall include a certification that
(i) the applicant meets the requirements for service under the court’s
selection plan;
(ii) the applicant will not discriminate against parties or attorneys on
the basis of race, ethnic origin, gender, or other protected personal
characteristic; and
(iii) the applicant mediator will comply with the court’s ADR plan,
orders of the court regarding cases submitted to mediation, and the
standards of conduct adopted by the State Court Administrator under
subrule (K).
(b) The applicant shall indicate on the form whether the applicant is
willing to offer evaluative mediation, and the applicant’s hourly rate for
providing mediation services.
(c) [Unchanged.]
(2) Review of Applications. The court’s ADR plan shall provide for a
person or committee to review applications annually, or more frequently
if appropriate, and compile a list of qualified mediators.
(a) Persons Applicants meeting the qualifications specified in this rule
shall be placed on the list of approved mediators. Approved mediators
shall be placed on the list for a fixed period of time, not to exceed 5 seven
years, and must reapply at the end of that time in the same manner as
persons seeking to be added to the list directed by the court.
(b) Selections shall be made without regard to race, ethnic origin, or
gender. Residency or principal place of business may not be a qualifica-
tion.
 SPECIAL ORDERS 1225
(c) The approved list and the applications of approved mediators,
except for the optional section identifying the applicant’s gender and
racial/ethnic background, shall be available to the public in the office of
the ADR clerk.
(d) An applicant may attach a résumé or biographical information to
the application.
(e) A Community Dispute Resolution Program center may appear on
a roster of mediators, provided that the center selects only mediators
meeting the qualifications of this rule or those training requirements
established by the State Court Administrator to mediate cases ordered by
the court.
(3)-(4) [Unchanged.]
(G) Qualifications of Mediators.
(1) To be eligible to serve as a domestic relations mediator under this
rule, an applicant must meet the following minimum qualifications:
(a) The applicant must
(i) be a licensed attorney, a licensed or limited licensed psychologist, a
licensed professional counselor, or a licensed marriage and family thera-
pist;
(ii) have a master’s degree in counseling, social work, or marriage and
family therapy;
(iii) have a graduate degree in a behavioral science; or
(iv) have five years experience in family counseling.
(b) The applicant must have completed a training program approved
by the State Court Administrator providing the generally accepted
components of domestic relations mediation skills.
(c) Upon completion of the training required under subrule (G)(1)(b),
The applicant must have observed two domestic relations mediation
proceedings conducted by an approved mediator, and have conducted one
domestic relations mediation to conclusion under the supervision and
observation of an approved mediator.
(2)-(4) [Unchanged.]
(H)-(K) [Unchanged.]
Staff Comment: The proposed amendments of Rules 2.403, 2.404, 2.410,
and 2.411 would revise and update the court rules relating to mediation
and case evaluation as recommended by the Dispute Resolution Rules
Committee convened by the State Court Administrative Office. The com-
mittee’s report can be found at http://courts.michigan.gov/scao/resources/
publications/reports/DRRCReport2008.pdf. The proposal also contains pro-
posed changes of MCR 3.216 recommended by staff to reflect the changes
suggested by the committee of the other rules in the proposal.
***Please note that the proposed order contains alternative options
for MCR 2.403(M)(1). Alternative A, recommended by the committee,
would allow subsequent claims to be raised following disposition pursu-
ant to case evaluation, if the claim had not arisen at the time of case
evaluation, including in cases that involve personal protection benefits
under MCL 500.3101 et seq. Alternative B would allow subsequent claims
to be brought only in PIP cases; in all other cases, the acceptance of a case
1226 482 MICHIGAN REPORTS
evaluation award would be deemed to dispose of all claims in a case,
including any that might arise after case evaluation.***
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on this proposal may be sent to the
Supreme Court Clerk in writing or electronically by March 1, 2009, at
P.O. Box 30052, Lansing, MI, 48909, or [email protected]. When
filing a comment, please refer to ADM File Nos. 2005-05 and 2006-
20. Your comments and the comments of others will be posted at:
www.courts.mi.gov/supremecourt/resources/administrative/index.htm.
PROPOSED AMENDMENTS OF JUVENILE COURT STANDARDS AND ADMINISTRATIVE
GUIDLENES FOR THE CARE IF CHILDREN. On order of the Court, this is to advise
that the Court is considering amendment of Administrative Order
No. 1985-5. 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.

[The present language would be amended as indicated below:]

Pursuant to Administrative Order No. 1985-5, this Court adopted the

Juvenile Court Standards and Administrative Guidelines for the Care of
Children, the Standards to take effect on May 1, 1985 and to expire on
May 1, 1988 as amended by Administrative Order No. 1988-3. We now
order that the Juvenile Court Standards and Administrative Guidelines
Juvenile Court Standards and Administrative Guidelines continue in
effect, as modified infra below, until the further order of this Court:

JUVENILE COURT STANDARDS AND ADMINISTRATIVE

GUIDELINES FOR THE CARE OF CHILDREN

I. Court administrators, supervisory personnel, county juvenile offic-

ers, probation officers, caseworkers, and personnel of court-operated
child care facilities shall meet the following minimum standards in order
to qualify for employment, unless the state court administrator grants an
exception under I(G). Desired standards are those preferred qualifica-
tions that extend beyond minimal standards but are not required to
perform the job function.
These standards shall apply only to new staff hired by the juvenile
court on or after the effective date of these standards. A court employee
 SPECIAL ORDERS 1227
who is currently in a position that was approved under regulations that
preceded the implementation of these standards shall be deemed quali-
fied for that position. A court-appointed person hired subsequent toafter
the effective date of these standards shall meet the minimum qualifica-
tion of these standards for that position.
A. Court Administrator/Director. The person in the juvenile court who
is directly responsible to the chief or presiding probate judge and who is
delegated administrative responsibilities for the operation of the court.
A court administrator, at the time of appointment, shall possess the
following qualifications:
1. Education and Experience:
a. Desired Standards:
(1.) Master’s degree in social sciences, business or public administra-
tion, education, criminal justice, a related field that qualifies the person
to manage or supervise the delivery of juvenile services, or a law degree,
with a minimum of four years of supervisory experience with juvenile
court staff.
b. Minimum Standards
(1.) Master’s degree in social sciences, business or public administra-
tion, education, criminal justice, or a related field that qualifies the
person to manage or supervise the delivery of juvenile services, or a law
degree, with a minimum of one year of experience working with juvenile
court staff or related human service field.
(2.) A bachelor’s degree in those same areas and two years of
supervisory experience working with juvenile court staff or related
human services field. (Courts with only one level of supervision may use
two years of casework experience in lieu of supervisory experience.)
c. [Unchanged.]
B. Supervisory Personnel. Those directly responsible for ongoing
supervision of professional and support staff providing direct services to
children, youth, and their families.
A supervisor, at the time of appointment, shall possess the following
qualifications:
1. Education and Experience
a. Desired Standards
(1.) Master’s degree in social work, education, or a human service
field, or a related field that qualifies the person to manage or supervise
the delivery of juvenile services, with one year of professional experience
in juvenile court work.
b. Minimum Standards
(1.) A bachelor’s degree in social sciences, education, or a human
service field, or a related field that qualifies the person to manage or
supervise the delivery of juvenile services, with two years of professional
experience with a juvenile court staff or in a child welfare agency.
c. [Unchanged.]
C. Direct Services: Probation Officers/Casework Staff. The profes-
sional staff who work directly with children and their families and other
1228 482 MICHIGAN REPORTS
relevant individuals and who are primarily responsible for the develop-
ment, implementation and review of plans for children, youth and their
families.
Each county shall provide for a minimum of one delinquency proba-
tion officer/casework staff person (but exclusive of clinical staff and
detention home personnel) for every 6,000 (or major fraction thereof)
children under 19 years of age in the county.
A probation officer/caseworker, at the time of appointment, shall
possess the following qualifications:
1. Education and Experience
a. Desired Standards
(1.) Bachelor’s degree in social work, criminal justice, education, or
behavioral sciences, or a related field that qualifies the person to manage
or supervise the delivery of juvenile services, with two years of casework
experience in juvenile court or a related child welfare agency and must
complete the Michigan Judicial Institute certification training for juve-
nile court staff within two years after date of employment.
b. Minimum Standards
(1.) Bachelor’s degree in social sciences, education, or a related human
service field, or a related field that qualifies the person to manage or
supervise the delivery of juvenile services, and must complete the
Michigan Judicial Institute certification training for juvenile court staff
within two years after date of employment.
c. [Unchanged.]
D. Administrator of County Child Care Facility. The person respon-
sible to the chief or presiding probate judge or to the juvenile court
administrator and to whom is delegated overall administrative responsi-
bility for the day-to-day operation of county child care facilities operated
by the court.
The administrator, at the time of appointment, shall possess the
following qualifications:
1. Education and Experience
a. Desired Standards
(1.) Master’s degree in social work, sociology, psychology, guidance and
counseling, education, business administration, criminal justice, or pub-
lic administration, or a related field that qualifies the person to manage
or supervise the delivery of juvenile services, and two years of supervisory
experience in a juvenile court, public or private child care facility.
b. Minimum Standards
(1.) Same as above with a minimum of one year of supervisory
experience in a juvenile court, public or private child care facility.
(2.) Bachelor’s degree in social science, education, or human service
field, or a related field that qualifies the person to manage or supervise
the delivery of juvenile services, and two years of experience in a juvenile
court, public or private child care facility.
c. [Unchanged.]
E. Child Care Staff Supervisor The child care supervisor is directly
responsible for supervision of child care workers in the facility.
 SPECIAL ORDERS 1229
The child care supervisor, at the time of appointment, shall possess
the following qualifications:
1. Education and Experience
a. Desired Standards
(1.) Bachelor’s degree in social work, psychology, sociology, education,
criminal justice or related human services field or a related field that
qualifies the person to manage or supervise the delivery of juvenile
services, with two years of experience with a juvenile court or a public or
private child care agency.
b. Minimum Standards
(1.) Two years of college in a human services or education field or a
related field that qualifies the person to manage or supervise the delivery
of juvenile services, and two years of work experience in a child care
institution.
c. [Unchanged.]
F. Child Care Worker. The person who provides direct care of children
in the facility.
A child care worker, at the time of appointment, shall possess the
following qualifications:
1. Education and Experience
a. Desired Standards
(1.) Bachelor’s degree in social sciences, or human services, or related
field, which qualifies the person to work with juveniles.
b. Minimum Standards
(1.) A high school diploma or its equivalent.
c. [Unchanged.]
G. Exceptions. The state court administrator may authorize a court to
hire an employee who does not meet the education requirements estab-
lished in these standards if the court provides a reasonable period within
which the candidate must meet the education standards.
H. A bachelor’s degree or other postsecondary degree is a degree from
a college or university that is accredited by an accrediting body of the
Council for Higher Education Accreditation.
II. [Unchanged.]
Staff Comment: This proposal would expand the eligible education
categories prospective employees (including administrators, supervisory
personnel, county juvenile officers, probation officers, caseworkers, and
personnel of court-operated child care facilities) must meet to be considered
for employment. In addition, the proposal would allow the state court
administrator to waive the employment standards if the court provides a
reasonable period within which the candidate must meet the education
standards, and establishes minimum accreditation requirements.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the secretary of the State Bar
of Michigan and to the state court administrator so that they can make
the notifications specified in MCR 1.201. Comments on this proposal
may be sent to the Supreme Court Clerk in writing or electronically
by March 1, 2009, at P.O. Box 30052, Lansing, MI 48909, or
1230 482 MICHIGAN REPORTS
[email protected]. All comments received within the public
comment period will be posted on the Court’s website at
www.courts.mi.gov/supremecourt/resources/administrative/index.htm.
When filing a comment, please refer to ADM File No. 2008-40.

Order Entered December 8, 2008:

In re HON CATHERINE BOVE STEENLAND, No. 137511. The Judicial
Tenure Commission has issued a Decision and Recommendation for an
Order of Discipline, to which the respondent, 39th District Court Judge
Catherine Bove Steenland, consents. It is accompanied by a Settlement
Agreement, in which the respondent waived her rights and consented to
a public censure and a 90-day suspension without pay.
In resolving this matter, we are mindful of the standards set forth in
In re Brown, 461 Mich 1291, 1292 and 1293 (2000):
[E]verything else being equal:

(1) misconduct that is part of a pattern or practice is more

serious than an isolated instance of misconduct;
(2) misconduct on the bench is usually more serious than the
same misconduct off the bench;
(3) misconduct that is prejudicial to the actual administration
of justice is more serious than misconduct that is prejudicial only
to the appearance of propriety;
(4) misconduct that does not implicate the actual administra-
tion of justice, or its appearance of impropriety, is less serious than
misconduct that does;
(5) misconduct that occurs spontaneously is less serious than
misconduct that is premeditated or deliberated;
(6) misconduct that undermines the ability of the justice
system to discover the truth of what occurred in a legal contro-
versy, or to reach the most just result in such a case, is more
serious than misconduct that merely delays such discovery;
(7) misconduct that involves the unequal application of justice
on the basis of such considerations as race, color, ethnic back-
ground, gender, or religion are more serious than breaches of
justice that do not disparage the integrity of the system on the
basis of a class of citizenship.

In the present case, those standards are being applied in the context
of the following stipulated findings of fact of the Judicial Tenure
Commission, which, following our de novo review, we adopt as our own:
1. The respondent was, at all material times, a judge of the
39th District Court, Macomb County, Michigan.
 SPECIAL ORDERS 1231
2. As a judge, she is subject to all the duties and responsibilities
imposed on her by the Michigan Supreme Court, and is subject to the
standards for discipline set forth in MCR 9.104 and MCR 9.205.
3. On June 7, 2008, the respondent was operating a motor
vehicle on North Ogemaw Trail, a highway in Ogemaw County,
Michigan, after consuming beer.
4. As a result of the respondent’s alcohol consumption, the
respondent was intoxicated.
5. After being placed under arrest, the respondent submitted
to a blood alcohol test, which showed a result of 0.23 grams per 100
milliliters of blood.
6. On July 17, 2008, in 82nd District Court in West Branch,
Michigan, the respondent pleaded guilty to, and was convicted of,
operating a motor vehicle while visibly impaired, contrary to MCL
257.625(3).
7. The respondent has pled guilty to the commission of a misde-
meanor designed to promote public safety. The commission of a crime
by a judge erodes public confidence in the judiciary, which is prejudi-
cial to the administration of justice.

After reviewing the recommendation of the Judicial Tenure Commis-

sion, the settlement agreement, the standards set forth in Brown, and the
above findings of fact, we accept the recommendation of the commission
and order that the Honorable Catherine Bove Steenland be publicly
censured and suspended without pay for 90 days, effective December 18,
2008. This order stands as our public censure.

Orders Entered December 9, 2008:

PROPOSED AMENDMENT OF RULE 2.112 OF THE MICHIGAN COURT RULES. On
order of the Court, this is to advise that the Court is considering
amendment of Rule 2.112 of the Michigan Court Rules. 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.

[The present language would be amended as indicated below:]

RULE 2.112. PLEADING SPECIAL MATTERS.

(A)-(K)[Unchanged.]
1232 482 MICHIGAN REPORTS
(L) Medical Malpractice Actions. In an action alleging medical mal-
practice filed on or after October 1, 1993, each party must file an affidavit
as provided in MCL 600.2912d, and 600.2912e.
(1) Sufficiency of Affidavit. An affidavit of merit filed under MCL
600.2912d is presumed to be valid and tolls the period of limitations.
However, if the court determines upon a party’s challenge to the
sufficiency of the affidavit that the affidavit is deficient, the court shall
dismiss the action without prejudice. Following dismissal, the plaintiff
may file a complaint accompanied by a conforming affidavit of merit
within the time that remains in the period of limitations.
(2) Notice. Notice of filing anthe affidavit under MCL 600,2912d or
600.2912e must be promptly served on the opposing party. If the opposing
party has appeared in the action, the notice may be served in the manner
provided by MCR 2.107. If the opposing party has not appeared, the
notice must be served in the manner provided by MCR 2.105. Proof of
service of the notice must be promptly filed with the court.
Staff Comment: This proposed amendment would clarify the rules
regarding affidavits of merit as expressed in Kirkaldy v Rim, 478 Mich
581 (2007). It would establish a presumption of validity for an affidavit of
merit upon filing and would require that a party challenge the sufficiency
of an affidavit of merit before it can be determined to be deficient. If a
court finds the affidavit deficient, the action would be dismissed. The
party would then have the period of time remaining in the statutory
limitations period in which to file a complaint with a conforming affidavit
of merit.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the secretary of the State Bar
of Michigan and to the State Court Administrator so that they can
make the notifications specified in MCR 1.201. Comments on these
proposals may be sent to the Supreme Court Clerk in writing or
electronically by April 1, 2009, at P.O. Box 30052, Lansing, MI 48909,
or [email protected]. All comments received within the public
comment period will be posted on the Court’s website at
www.courts.mi.gov/supremecourt/resources/administrative/index.htm.
When filing a comment, please refer to ADM File No. 2007-07 and
ADM File No. 2006-43.
PROPOSED AMENDMENT OF RULE 611 OF THE MICHIGAN RULES OF EVIDENCE.
On order of the Court, this is to advise that the Court is considering
amendment of Rule 611 of the Michigan Rules of Evidence. 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.
 SPECIAL ORDERS 1233
[The present language would be amended as indicated below:]

RULE 611. MODE AND ORDER OF INTERROGATION AND PRESENTATION.

(a) Control by Court. The court shall exercise reasonable control over
the mode and order of interrogating witnesses and presenting evidence so
as to (1) make the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless consumption of time, and
(3) protect witnesses from harassment or undue embarrassment.
(b) Appearance of Parties and Witnesses. The court shall exercise
reasonable control over the appearance of parties and witnesses so as to
(1) ensure that the demeanor of such persons may be observed and
assessed by the fact-finder, and
(2) to ensure the accurate identification of such persons.
(b)-(c)[Renumbered (c)-(d), but otherwise unchanged]
Staff Comment: This proposed amendment would clarify that a judge
is entitled to establish reasonable standards regarding the appearance of
parties and witnesses to evaluate the demeanor of those individuals and
to ensure accurate identification.
The proposal was suggested in response to a case in which a district
judge was sued for dismissing a plaintiff’s case following the plaintiff’s
refusal to remove her hijab during testimony. The plaintiff subsequently
sued the district judge in federal court, alleging a violation under 42 USC
1983 (Muhammad v Paruk, 553 F Supp 2d 893 [ED Mich, 2008]). The
federal court declined to exercise jurisdiction and dismissed the case,
which has since been appealed. In declining to exercise jurisdiction, the
federal court noted that state court review “would have avoided many of
the federalism concerns” cited by the court, which prompted consider-
ation of this proposal by the Michigan Supreme Court.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the secretary of the State Bar
of Michigan 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 April 1, 2009, at P.O. Box 30052, Lansing, MI 48909,
or [email protected]. All comments received within the public
comment period will be posted on the Court’s website
at www.courts.mi.gov/supremecourt/resources/administrative/index.htm.
When filing a comment, please refer to ADM File No. 2007-13.

Order Entered December 16, 2008:

PROPOSED AMENDMENT OF RULE 3.101 OF THE MICHIGAN COURT RULES. On
order of the Court, this is to advise that the Court is considering an
amendment of Rule 3.101 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
1234 482 MICHIGAN REPORTS
considered at a public hearing. The notices and agendas for public
hearings are posted at www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.

[The present language would be amended as indicated below:]

RULE 3.101. GARNISHMENT AFTER JUDGMENT.

(A)-(G) [Unchanged.]
(H) Disclosure. The garnishee shall mail or deliver to the court, the
plaintiff, and the defendant, a verified disclosure within 14 days after
being served with the writ.
(1) Nonperiodic Garnishments.
(a)-(b) [Unchanged.]
(c) If the garnishee is indebted to the defendant, but claims that
withholding is exempt under MCR 3.101(I)(6), the garnishee shall
indicate on the disclosure the specific exemption. If the garnishee is
indebted, but claims the withholding is exempt for some reason other
than those set forth in MCR 3.101(I)(6), the garnishee shall indicate on
the disclosure the basis for its claim of exemption and cite the legal
authority for the exemption.
(2) [Unchanged.]
(I) Withholding. This subrule applies only if garnishee is indebted to
or obligated to make periodic payments to the defendant.
(1)-(5) [Unchanged.]
(6) A bank or other financial institution as garnishee shall not
withhold exempt funds of the debtor from an account into which only
exempt funds are directly deposited and where such funds are clearly
identifiable upon deposit as exempt Social Security benefits, Supplemen-
tal Security Income benefits, Railroad Retirement benefits, Black Lung
benefits, or Veterans Assistance benefits.
(J)-(T) [Unchanged.]
Staff Comment: The proposed amendments of MCR 3.101 would add
language to protect exempt funds from garnishment and would require
financial institutions to provide authority stating why certain funds are
exempt.
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 April 1, 2009,
at P.O. Box 30052, Lansing, MI 48909, or [email protected].
When filing a comment, please refer to ADM File No. 2008-41.
Your comments and the comments of others will be posted at
www.courts.mi.gov/supremecourt/resources/administrative/index.htm.
INDEX-DIGEST
 INDEX–DIGEST

ADMINISTRATIVE LAW
AGENCIES
1. The proper standard of review for a court reviewing an
agency’s interpretation of a statute requires respectful
consideration of the agency’s interpretation and cogent
reasons when overruling it, with the court’s primary
consideration being whether the agency’s interpretation is
consistent with the plain language of the statute. In re
Rovas Complaint, 482 Mich 90.
AGENCIES—See
ADMINISTRATIVE LAW 1
AIR-POLLUTION-CONTROL EQUIPMENT—See
TAXATION 1
APPELLATE COUNSEL—See
CRIMINAL LAW 1
APPELLATE REVIEW OF SENTENCES—See
SENTENCES 2
ARTICULATION OF REASONS FOR SENTENCING
GUIDELINES DEPARTURES—See
SENTENCES 2
ATTORNEY FEES—See
INSURANCE 3
CATASTROPHIC CLAIMS—See
INSURANCE 1

1379
1380 482 MICHIGAN REPORTS

CONFRONTATION OF WITNESSES—See
EVIDENCE 1
CONVICTED FELONS SERVING AS JURORS—See
JURY 1
CRIMINAL LAW
CRIMINAL PROCEDURE
1. The United States Supreme Court decision in Halbert v
Michigan, 545 US 605 (2005), holding that indigent defen-
dants who plead guilty of criminal offenses are entitled to
appointed counsel on direct appeal, does not apply retro-
actively to cases in which a defendant’s conviction became
final before Halbert was decided. People v Maxson, 482
Mich 385.
CRIMINAL PROCEDURE—See
CRIMINAL LAW 1
DELAY IN PAYMENT OF CLAIMS—See
INSURANCE 3
DEPARTURES FROM SENTENCING GUIDELINES
RECOMMENDATIONS—See
SENTENCES 2
ENVIRONMENT—See
TAXATION 1
EVIDENCE
HEARSAY
1. The admissibility of nontestimonial hearsay is governed
solely by MRE 804(b)(3) and does not implicate a defen-
dant’s constitutional right to confront witnesses (US
Const, Am VI; MRE 804[b][3]). People v Taylor, 482 Mich
368.
FALSE STATEMENTS—See
STATUTES 1
FINANCIAL HARDSHIP—See
INJUNCTIONS 1
FIREFIGHTERS—See
INJUNCTIONS 1, 2
 INDEX-DIGEST 1381

GOVERNMENTAL EMPLOYEES—See
GOVERNMENTAL IMMUNITY 1
GOVERNMENTAL IMMUNITY
GOVERNMENTAL EMPLOYEES
1. A governmental employee enjoys qualified immunity from
liability for intentional torts; the governmental employee
must raise governmental immunity as an affirmative de-
fense and establish (1) that the employee undertook the
challenged acts during the course of employment and that
the employee was acting, or reasonably believed that he or
she was acting, within the scope of his or her employment,
(2) that the employee undertook the acts in good faith, or
did not undertake them with malice, and (3) that the acts
were discretionary, rather than ministerial, in nature
(MCL 691.1407[3]). Odom v Wayne Co, 482 Mich 459.
HABITUAL OFFENDERS—See
SENTENCES 1
HEARSAY—See
EVIDENCE 1
IMPARTIAL JURORS—See
JURY 1
INCULPATION OF ACCOMPLICES—See
EVIDENCE 1
INDEMNIFICATION—See
INSURANCE 1
INDEPENDENT MEDICAL EXAMINATIONS—See
INSURANCE 2
INJUNCTIONS
See, also, LABOR RELATIONS 3
FIREFIGHTERS
1. Financial hardship to firefighters is not a proper basis for
granting injunctive relief against a proposed layoff of
firefighters because the harm is not irreparable and can be
adequately remedied by damages at law. Pontiac Fire
Fighters Union v Pontiac, 482 Mich 1.
2. A mere apprehension that a proposed reduction in fire-
fighting staff will result in reduced safety for those remain-
1382 482 MICHIGAN REPORTS

ing is insufficient grounds for a court to grant injunctive

relief; a plaintiff must make a particularized showing that
there exists a real and imminent danger of irreparable
harm if an injunction does not issue. Pontiac Fire Fighters
Union v Pontiac, 482 Mich 1.
INSIDE WIRING—See
TELECOMMUNICATIONS 1
INSURANCE
NO-FAULT
1. The Michigan Catastrophic Claims Association has the
authority to refuse to indemnify unreasonable charges for
personal protection insurance benefits if the member in-
surer’s policy provides coverage only for reasonable
charges (MCL 500.3104). United States Fidelity Ins &
Guaranty Co v Michigan Catastrophic Claims Ass’n, 482
Mich 414.
2. An insurer is not statutorily required to reconcile the
opinions of its independent medical examiner and an
insured’s treating physician before refusing to pay work-
loss benefits (MCL 500.3142[2], MCL 500.3148[1]). Moore
v Secura Ins, 482 Mich 507.
3. An insurer’s initial refusal to pay no-fault insurance ben-
efits cannot be deemed unreasonable for purposes of
awarding attorney fees if it is later determined that the
insurer was not required to pay those benefits (MCL
500.3148[1]). Moore v Secura Ins, 482 Mich 507.
INTENTIONAL AND WILLFUL MISCONDUCT OF
EMPLOYEES—See
WORKERS’ COMPENSATION 1
INTENTIONAL TORTS—See
GOVERNMENTAL IMMUNITY 1
JUDGES
MISCONDUCT OF JUDGES
1. In re Hultgren, 482 Mich 358.
JUROR QUALIFICATIONS—See
JURY 1
JURY
JUROR QUALIFICATIONS
1. A violation of the statute prohibiting a convicted felon
 INDEX-DIGEST 1383

from serving on a jury requires a new trial only if the

violation actually prejudiced the defendant; the juror’s
failure to disclose a felony conviction is only prejudicial if it
denied the defendant an impartial jury; the defendant has
the burden of establishing that the juror was not impartial
or at least that the juror’s impartiality is in reasonable
doubt (MCL 600.1307a[1][e], 600.1354[1]). People v Miller,
482 Mich 540.
LABOR RELATIONS
See, also, INJUNCTIONS 1, 2
POLICE AND FIRE DEPARTMENTS
1. An action that affects safety, which is a mandatory subject
of bargaining and “condition of employment,” may not be
undertaken during the pendency of compulsory arbitra-
tion of a labor dispute in a municipal police or fire
department without violating the status quo provision of
the compulsory arbitration statute (MCL 423.243). Detroit
Fire Fighters Ass’n v Detroit, 482 Mich 18.
2. A claim that an employer’s action jeopardizes the safety of
police or firefighters in violation of the status quo provision
of the compulsory arbitration statute can be established
only by demonstrating that the action is inextricably
intertwined with safety, and not merely that it arguably
affects safety (MCL 423.243). Detroit Fire Fighters Ass’n v
Detroit, 482 Mich 18.
3. When determining whether to grant preliminary injunc-
tive relief where a party alleges a status quo violation
during the compulsory arbitration of a labor dispute in a
municipal police or fire department, a court must consider
whether the moving party made the required showing of
irreparable harm, whether harm to the applicant absent
an injunction outweighs the harm it would cause to the
adverse party, whether the moving party demonstrated
that the underlying claim is likely to succeed on the merits,
and whether the public interest will be harmed if an
injunction is issued (MCL 423.231 et seq.). Detroit Fire
Fighters Ass’n v Detroit, 482 Mich 18.
4. If a court grants preliminary injunctive relief where there
is an alleged status quo violation, the court must then
decide the merits of the status quo claim within six months
after the injunction is granted unless good cause is shown
or the parties stipulate to a longer period (MCL 423.231 et
seq.; MCR 3.310[A][5]). Detroit Fire Fighters Ass’n v
Detroit, 482 Mich 18.
1384 482 MICHIGAN REPORTS

LAND DIVISION ACT—See

PROPERTY 1
LOSS OF OPPORTUNITY TO SURVIVE OR ACHIEVE
A BETTER RESULT—See
NEGLIGENCE 1
MEDICAL MALPRACTICE—See
NEGLIGENCE 1
MISCONDUCT OF JUDGES—See
JUDGES 1
MOTIONS AND ORDERS
SUMMARY DISPOSITION
1. White v Taylor Distributing Co, Inc, 482 Mich 136.
NEGLIGENCE
See, also, MOTIONS AND ORDERS 1
MEDICAL MALPRACTICE
1. Stone v Williamson, 482 Mich 144.
NEW TRIAL—See
JURY 1
NO-FAULT—See
INSURANCE 1, 2, 3
PAYMENT OF CLAIMS—See
INSURANCE 2
PERSONAL PROTECTION INSURANCE
BENEFITS—See
INSURANCE 1
PLATS—See
PROPERTY 1
POLICE AND FIRE DEPARTMENTS—See
LABOR RELATIONS 1, 2, 3, 4
PRIOR CONVICTIONS OF HABITUAL
OFFENDERS—See
SENTENCES 1
 INDEX-DIGEST 1385

PROPERTY
LAND DIVISION ACT
1. The provisions of the Land Division Act that give circuit
courts the authority to order the alteration of a plat cannot
be used to create substantive property rights (MCL
560.221; MCL 560.226[1]). Tomecek v Bavas, 482 Mich
484.
PROPOSED LAYOFFS—See
INJUNCTIONS 1, 2
PUBLIC SERVICE COMMISSION—See
TELECOMMUNICATIONS 1
REGULATION OF TELECOMMUNICATIONS
PROVIDERS—See
TELECOMMUNICATIONS 1
RETROACTIVITY OF DECISIONS—See
CRIMINAL LAW 1
REVISION OF PLATS—See
PROPERTY 1
RIGHT OF CONFRONTATION—See
EVIDENCE 1
RIGHT TO APPELLATE COUNSEL—See
CRIMINAL LAW 1
RULINGS ON THE MERITS OF STATUS QUO
VIOLATION CLAIMS—See
LABOR RELATIONS 4
SAFETY—See
INJUNCTIONS 2
LABOR RELATIONS 1, 2
SAME INCIDENT OR TRANSACTION—See
SENTENCES 1
SENTENCES
HABITUAL OFFENDERS
1. The habitual offender statutes require a sentencing court
to count each separate felony conviction that preceded the
1386 482 MICHIGAN REPORTS

sentencing offense when determining an offender’s ha-

bitual offender status, regardless of whether any of the
convictions arose out of the same criminal act or incident
(MCL 769.11[1]; MCL 769.12[1]). People v Gardner, 482
Mich 41.
SENTENCING GUIDELINES
2. A trial court must articulate the rationale for any depar-
ture it makes from the minimum sentence range recom-
mended under the sentencing guidelines; a court review-
ing a departure may not substitute its own reasons for
departure, nor may it speculate about conceivable reasons
for departure that the trial court did not articulate or that
cannot reasonably be inferred from what the court articu-
lated (MCL 769.34[3]). People v Smith, 482 Mich 292.
SENTENCING GUIDELINES—See
SENTENCES 2
STANDARD OF REVIEW—See
ADMINISTRATIVE LAW 1
STANDARDS FOR DETERMINING STATUS QUO
VIOLATIONS—See
LABOR RELATIONS 2
STANDARDS FOR INJUNCTIVE RELIEF—See
LABOR RELATIONS 3
STATEMENTS AGAINST INTEREST—See
EVIDENCE 1
STATUS QUO VIOLATIONS IN COMPULSORY
ARBITRATION—See
LABOR RELATIONS 1, 2, 3, 4
STATUTES
TELECOMMUNICATIONS ACT
1. The statutory provision that prohibits a telecommunica-
tion service provider from making a false, misleading, or
deceptive statement or representation regarding its service
applies only to statements or representations that are
intentionally false (MCL 484.2502[1][a]). In re Rovas
Complaint, 482 Mich 90.
 INDEX-DIGEST 1387

STATUTORY INTERPRETATION BY AGENCIES—See

ADMINISTRATIVE LAW 1
SUDDEN-EMERGENCY DOCTRINE—See
MOTIONS AND ORDERS 1
SUMMARY DISPOSITION—See
MOTIONS AND ORDERS 1
TAX EXEMPTIONS—See
TAXATION 1
TAXATION
TAX EXEMPTIONS
1. Daimlerchrysler Corp v State Tax Comm, 482 Mich 220.
TELECOMMUNICATIONS
PUBLIC SERVICE COMMISSION
1. The Public Service Commission may not regulate services
that telecommunications companies provide on wiring
inside their customers’ premises. In re Rovas Complaint,
482 Mich 90.
TELECOMMUNICATIONS ACT—See
STATUTES 1
TORTS—See
GOVERNMENTAL IMMUNITY 1
WORDS AND PHRASES—See
STATUTES 1
WORKERS’ COMPENSATION
INTENTIONAL AND WILLFUL MISCONDUCT OF EMPLOYEES
1. The statutory provision prohibiting an employee from
receiving workers’ compensation for an injury caused by
the employee’s intentional and willful misconduct applies
to conduct that is improper and done purposely despite the
knowledge that it is against the rules, regardless of the
degree of moral turpitude associated with the misconduct
(MCL 418.305). Brackett v Focus Hope, Inc, 482 Mich 269.