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VINCENT SALLAN
BRENT FARAGO
DANIELLE DEPRIEST
NATHAN INKS
BRITTNEY KOHN
RACHEL PINCH
JOSH ZEMAN
ZACHARY ZUREK
REBECCA MCLAUGHLIN
JOE PETERSON
ASSOCIATE EDITORS
SALVATORE AMODEO
DEREK BOYD
DAVID CORDS
DOMINIC BONELL
JAMES BUSTER
CHRISTOPHER CHESNEY
ZACHARY DELOY
LANI DOMAGALSKI
ALEX EDELEN
STEVEN ELLIS
KELLY FASBINDER
KIEFER COX
NICHOLAS JONES
KATHRYN LEVASSEUR
ASSISTANT EDITORS
G. GRANT GUINANE
NICKOLAS GUTTMAN
TIFFANY HOLLAND
HALEY JONNA
SAMUEL KOKOSZKA
MICHELLE KOLKMEYER
DENNIS LIENHARDT
PETER NOLAN
KATHRYN PAWLICKI
IGLI PSARI
NANA OSIPOVA
YANA OSIPOVA
MICHAEL PIGGINS
RYAN RICHTER
LESLIE ROSENBERG
LAURA SIGLER
ALMA SOBO
JUSTIN ZAYID
Spring 2015
NUMBER 3
CONTENTS
ARTICLES
CRIMINAL LAW
Erika Breitfeld................................................................................................597
EMPLOYMENT AND LABOR LAW
Patricia Nemeth & Deborah Brouwer...........................................................643
WORKERS DISABILITY COMPENSATION
Martin L. Critchell.........................................................................................673
EVIDENCE
Louis F. Meizlish............................................................................................687
INSURANCE LAW
James T. Mellon & David A. Kowalski..........................................................807
BUSINESS ASSOCIATIONS
Michael K. Molitor ........................................................................................837
GOVERNMENT LAW
Patricia Paruch..............................................................................................867
FEATURED LECTURE
I. GOODMAN COHEN LECTURE: TRIAL PRACTICE AS VIEWED FROM
THE PERSPECTIVE OF THE TRIAL JUDGE
Judge Gerald E. Rosen..................................................................................885
NOTES
THE ISSUE OF STANDING IN UNITED STATES V. WINDSOR: A
CONSTITUTIONAL ERROR THAT IMPACTED THE INTEGRITY OF THE
JUDICIAL PROCESS
Nathan Inks..................................................................................891
REQUIRING A TRANSVAGINAL ULTRASOUND PRIOR TO ABORTION:
AN UNDUE BURDEN ON THE FREEDOM TO CHOOSE
Chelsey Marsh................................................................................................915
CRIMINAL LAW
ERIKA BREITFELD
I. MIRANDA AND OTHER EVIDENCE RULES ........................................... 598
A. Custodial Interrogation: Police, Parole, and the Measure of
Coercion .................................................................................. 598
B. The Power of Community: Did Local Citizens Just Help the
Police Catch Me?..................................................................... 601
C. Under the Michigan Rules of Evidence, Dont Tell Anyone
or Youll Get in Trouble Is Not Enough to Prove That a
Defendant Made a Witness Unavailable to Testify.................. 605
D. To Have and to Hold from This Day Forward: A Look at the
Spousal Privilege ..................................................................... 608
E. The Loud Consequences of Remaining Silent: Miranda,
Raffel, and Michigan Rules of Evidence.................................. 609
II. CRIME AND PUNISHMENT: THE CRIMINAL JUSTICE SYSTEM AT
WORK!............................................................................................. 611
A. Close . . . Closer . . . How Close Is Immediate Presence
Under the Larceny from a Person Statute?......................... 611
B. What Does Any Act Mean in the Extortion Statute?.............. 614
C. When Do I Have to Know That I Possess a Dangerous
Animal? Before or After It Attacks and Injures a Person? ...... 616
D. Summer Break and Breaking the Law: A Student, a Substitute
Teacher, and Michigans CSC Statute..................................... 618
E. Dont Take Away My PIP Benefits: Unlawfully Taking
Away and How It Affects Insurance Benefits......................... 619
III: JUDGES AND LAWYERSOUR BEHAVIOR MATTERS ...................... 622
A. Blurred Judicial Lines: When Professional and Personal
Conduct Merge ........................................................................ 622
B. What Say You? A Judges, a Prosecutors, and a Defense
Attorneys Statements Are All OK, Says the Court of
Appeals! ................................................................................... 625
C. When It Doesnt Go Your Way, Blame It on Your Attorney
(and Other Reasoning the Court Refuses to Adopt)................. 627
597
598
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People v. Elliott, 494 Mich. 292, 295, 833 N.W.2d 284, 286 (2013).
Id. at 296, 833 N.W.2d at 286.
Id. at 297, 833 N.W.2d at 28687.
Id. at 297, 833 N.W.2d at 287.
Id.
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600
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19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
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custodial interrogation, and the court reversed the court of appeals and
reinstated the defendants conviction and sentence.29
B. The Power of Community: Did Local Citizens Just Help the Police
Catch Me?
In a case entwined with multiple robberies and locations, the
message from People v. Henry30 is clear: when a community joins with
the police, the criminal loses. In Henry, a career criminal appealed his
five criminal convictions involving various armed robberies that
occurred in 2010.31 He raised Fourth,32 Fifth,33 and Sixth Amendment34
challenges, as well as claimed a Brady violation,35 Due Process
violation,36 and a subject matter jurisdiction challenge.37
A brief recitation of the facts is necessary to understand the
multitude of the defendants claims. The Lansing Police were barraged
with a string of armed robberies in November 2010.38 During that time,
the Lansing Police received an anonymous tip providing the name and
location of a man who the anonymous tip informant claimed committed
the recent armed robberies.39 An officer followed up on that tip and went
to the address where the suspect was supposed to be.40 The apartment
was secure, and there did not appear to be any signs of forced entry, so
the officer left, as he had no reason to enter the apartment without a
warrant.41 The next day, a suspect robbed a small diner that was about a
quarter of a mile away from the apartment that was referenced in the
anonymous tip.42 Officers responded to the restaurant and learned that
four witnesses to the robbery had left the diner looking for the suspect.43
The witnesses spotted the suspect and followed him to an auto parts
store, then to his vehicle, and finally to the apartment complex where the
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
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2015]
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assistance of counsel and noted that counsel was not ineffective for
choosing not to file frivolous motions.58 In sum, the court denied the
defendants claims of ineffective assistance of counsel.59
Additionally, the defendant claimed that the sufficiency of evidence
(that he assaulted a victim during one of his crimes) was not proven.60
The court disagreed and found that when the defendant told the victim
during the course of the robbery, you know the deal, and, youve got
two seconds, that a reasonable person would have feared an assault.61
The court explained that it was reasonable for the victim to infer that the
defendant was threatening her with violence and referencing the other
recent robberies.62
Next the defendant argued that the police violated his Miranda rights
when they questioned him in jail.63 The court agreed.64 The court took
particular disliking to the way the police explained Miranda rights to the
defendant.65 The court included the following exchange in its opinion:
Instead of scrupulously honoring defendants assertion of his
Fifth Amendment right to remain silent, the police sought to
assure defendant that he would not be giving up his rights by
making a statement. Specifically, when defendant stated, you
say give up the rights, the detective responded, Well no, do
you wanna give us, give us a statement at this time? . . . . The
detective informed defendant that his rights were on the form;
then stated, Now Im asking do you wanna make a statement at
this time . . . ? . . . . [B]efore signing the waiver, defendant
again sought assurance that he was not giving up his rights when
he stated, But Im not give [sic] up my rights am I?66
The court reasoned that the police concealed that agreeing to talk
also was a waiver of the defendants rights.67 But even though the court
found that the police violated the defendants Miranda rights, the court
held that the error was harmless.68 The court cited the mountains of
58.
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.
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69.
70.
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76.
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78.
79.
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116.
117.
118.
119.
120.
121.
122.
123.
124.
125.
126.
127.
128.
Id.
Id. at 120, 832 N.W.2d at 74748.
303 Mich. App. 737, 738, 846 N.W.2d 412, 414 (2014).
Id. at 738, 846 N.W.2d at 414.
Id.
Id.
Id. at 739, 846 N.W.2d at 414.
Id.
Id.
Id.
Id.
Id.
Id. at 73940, 846 N.W.2d at 414.
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applicable statute.129 The trial court disagreed with the prosecutor and
dismissed the case against the defendant.130 The prosecutor appealed.131
The court held that the wife did not need to consent to testify; stated
another way, the prosecution could compel her testimony because the
spousal privilege did not apply.132 The court meticulously reviewed the
history of the spousal-privilege statute and its amendments.133
Ultimately, the court determined that the general rule is that there is a
legal right not to make a spouse testify against the other spouse.134 But
that rule must be read with its exceptions, including subsection (3),
stating that the privilege does not apply [i]n a cause of action that grows
out of a personal wrong or injury done by one [spouse] to the
other . . . .135 Therefore, because the defendants charges stemmed from
him entering his wifes home and shooting one of her guests, the court
reversed the trial court and remanded for reinstatement of the charges
against the defendant.136
E. The Loud Consequences of Remaining Silent: Miranda, Raffel, and
Michigan Rules of Evidence
The Michigan Supreme Court has held that a defendants silence at
his first trial can be used for cross-examination in that same defendants
second trial.137 In People v. Clary,138 a criminal defendant was tried for
attempted murder and possession of a firearm during a felony.139 The
jury could not reach a verdict, and the trial court declared a mistrial due
to a hung jury.140 The defendant did not take the stand at his first trial.141
129. Id. at 740, 846 N.W.2d at 414 (alteration in original) (quoting MICH. COMP. LAWS
ANN. 600.2162(3)(d) (West 2015)).
130. Id.
131. Id.
132. Id. at 749, 846 N.W.2d at 419.
133. Id. at 74148, 846 N.W.2d at 41519. The court examined previous opinions
including the cases People v. Love, 425 Mich. 691, 391 N.W.2d 738 (1986); People v.
Sykes, 117 Mich. App. 117, 323 N.W.2d 617 (1982); People v. Ellis, 174 Mich. App.
139, 436 N.W.2d 383 (1988). The court also noted that the spousal privilege statute has
undergone two amendments to arrive to its current content today. Szabo, 303 Mich. App.
at 741, 846 N.W.2d at 415.
134. Id. at 74647, 846 N.W.2d at 418.
135. Id. at 747, 846 N.W.2d at 418 (alterations in original) (quoting MICH. COMP.
LAWS ANN. 600.2162(3)(d) (West 2015)).
136. Id. at 749, 846 N.W.2d at 419.
137. People v. Clary, 494 Mich. 260, 263, 833 N.W.2d 308, 311 (2013).
138. Id.
139. Id. at 262, 833 N.W.2d at 310.
140. Id.
141. Id. at 263, 833 N.W.2d at 311.
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During his second trial, the defendant took the stand and testified
that he did not shoot the victim.142 On cross-examination, the prosecutor
impeached the defendant by asking him why he did not offer that
testimony during the first trial.143 Specifically, the prosecutor stated,
You didnt tell that jury the same story youre telling this jury, did you,
sir?144 The jury returned a guilty verdict, and the defendant appealed
based on the prosecutors use of his silence during cross-examination.145
The court of appeals held that the defendant was improperly
impeached and dismissed the defendants convictions.146 The prosecutor
filed an application for leave to appeal.147
The Michigan Supreme Court held that the prosecutors
impeachment of the defendant could include that defendants silence
during his earlier trial.148 The court took great lengths to compare the
current case to Raffel v. United States,149 which is the guiding case about
silence used as impeachment. The court distinguished the Raffel case
with the Doyle case.150 Using these two cases as guidance, the court held
that while it was permissible to comment on the defendants silence
during his first trial, the prosecutor could not refer to the defendants
post-arrest and post-Miranda silence.151 (During the second trial, the
prosecutor had asked the defendant why he never told the police he
didnt shoot the victim.152)
The court stated that when the prosecutor asked the defendant why
he never told the police he didnt shoot the victim, the prosecutor
violated the defendants post-Miranda silence.153 The court relied on
Raffel again to reason that Raffel addresses impeachment that occurs
during subsequent trials, while the Doyle case addresses silence that
occurs at the time of arrest.154 This distinction was key to the courts
analysis.
142. Id. at 26364, 833 N.W.2d at 311.
143. Id. at 264, 833 N.W.2d at 311.
144. Id. at 264 n.1, 833 N.W.2d at 311 n.1.
145. Id. at 264, 833 N.W.2d at 311.
146. Id.
147. Id.
148. Id. at 263, 833 N.W.2d at 311.
149. 271 U.S. 494 (1926); see Clary, 494 Mich. at 26671, 833 N.W.2d at 31215.
150. Id. at 27173, 833 N.W.2d at 31517.
151. Id. at 27172, 833 N.W.2d at 31516. The court reviewed the arraignment
transcript and verified that the defendant was read his Miranda rights, so the prosecutor
could not comment on the lack of any post-arrest and post-arraignment statements. Id. at
272, 833 N.W.2d at 316.
152. Id. at 272, 833 N.W.2d at 316.
153. Id. at 27172, 833 N.W.2d at 31516.
154. Id. at 272, 833 N.W.2d at 316.
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Therefore, the court held that the prosecutor should not have made
reference to the defendants post arrest and post-Miranda silence and
should not refer to that silence if there was a third trial.155 But the court
noted that the defendants decision not to testify at his first trial can be
used for impeachment purposes, which was what occurred in the current
case.156
Finally, the court acknowledged the chilling effect that comes with
allowing a defendants silence to be used as impeachment evidence in a
later retrial.157 But the court explained that the Fifth Amendment is not
an immunity from cross-examination on the matters he has himself put
in dispute.158 The court reasoned that the Fifth Amendment does not
preclude the defendant from the truth-testing function159 of crossexamination: if the defendant takes the stand he cannot then assert his
right to remain silent to avoid the interests of justice.160
Therefore, the court ultimately did not change the court of appeals
reversal of the defendants convictions, not because of the prosecutors
use of the defendants silence as impeachment, but because the
prosecutor should not have addressed the defendants post-arrest and
post-Miranda silence.161 As a result, the court remanded the case for
further proceedings (a possible third trial) and indicated that if there was
another trial, the prosecutor could refer to the defendants failure to
testify at his first trial.162
II. CRIME AND PUNISHMENT: THE CRIMINAL JUSTICE SYSTEM AT
WORK!
A. Close . . . Closer . . . How Close Is Immediate Presence Under the
Larceny from a Person Statute?
The Michigan Supreme Court clarified the meaning of the phrase
from the person of another in the context of the larceny from the
person statute.163 A loss prevention officer working at Macys viewed,
over closed-circuit television, a very nervous patron (the defendant)
155. Id.
156. Id. at 27071, 833 N.W.2d at 315.
157. Id. at 27778, 833 N.W.2d at 319.
158. Id. at 279, 833 N.W.2d at 320 (quoting Brown v. United States, 356 U.S. 148,
15556 (1958)).
159. Clary, 494 Mich. at 278 n.13, 833 N.W.2d at 319 n.13.
160. Id. at 279, 833 N.W.2d at 320.
161. Id. at 280, 833 N.W.2d at 321.
162. Id. at 281, 833 N.W.2d at 321.
163. People v. Smith-Anthony, 494 Mich. 669, 672, 837 N.W.2d 415, 417 (2013).
612
[Vol. 60:597
walking through the store.164 The defendant selected a perfume set from a
display and put it in a grocery bag that she had with her.165 The loss
prevention officer confronted the defendant about the perfume set, and
after a struggle, the defendant was captured.166
The prosecution charged the defendant with unarmed robbery.167 The
jury was instructed on the unarmed robbery, and per the defendants
request, larceny from the person.168 The jury was read the larceny from
a person criminal jury instruction, which explained that to find a person
guilty of larceny from the person, the jury must find that the property
was taken from [the loss prevention officers] person or from the [loss
prevention officers] immediate area of control or immediate
presence.169 The jury returned a verdict of not guilty on the unarmed
robbery but guilty of larceny from the person.170 The defendant
appealed.171
The court of appeals reversed the defendants conviction because it
found that taking property from another required more than [a] vague
proximity between the victim and the perpetrator.172 In essence, the
court of appeals did not find that the loss prevention officer was close
enough to the defendant for the defendant to have committed a taking
that was within the immediate area of control or immediate
presence.173 The prosecutor filed an application for leave to appeal, and
the supreme court granted leave to address the following three issues:
1. Was there proof beyond a reasonable doubt that the crime of
larceny was committed within the immediate area of control or
immediate presence of the loss prevention officer;
2. Did the 2004 amendment of the robbery statute alter the
definition of presence under the larceny from the person
statute; and
164.
165.
166.
167.
168.
169.
170.
171.
172.
173.
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loss prevention officer was only fairly close to the defendant when she
stole the perfume set.182 Therefore, the court found that the conviction
was in error and affirmed the court of appeals judgment.183
In a lengthy dissent, Justice Kelly stated that the majority was
defining the from the person language too narrowly.184 Specifically,
Justice Kelly stated that the majority was ignoring years of jurisprudence
that delineated that actual possession was not needed for larceny from
the person.185 Instead, Justice Kelly advocated that the proper definition
of from the person is one that means property taken in the persons
immediate presence, which includes property that is under the persons
personal protection and control such that a taking of such property
triggers a substantial risk that a violent altercation will occur.186
B. What Does Any Act Mean in the Extortion Statute?
The Michigan Supreme Court has addressed the confusion as to
whether the crime of extortion requires a person to compel another to do
an act that is of serious consequence to the victim or just any act.187
In People v. Harris,188 a mechanic agreed to work on the defendants
truck for $400.189 While the mechanic was working on the truck in the
defendants driveway, it began to rain.190 The mechanic took shelter
close by on another neighbors porch.191 When the defendant saw that the
mechanic was not working on his truck in a prompt manner, the
defendant became upset and told the victim that he would silence him
if the victim did not start working on the truck.192 The victim responded
that he would rather meet his maker than capitulate to defendants
demands.193 This exchange upset a group of women on a nearby porch,
so they called the police.194 The defendant was arrested and charged with
various offenses, including extortion.195
182.
183.
184.
185.
186.
187.
188.
189.
190.
191.
192.
193.
194.
195.
Id.
Id. at 693, 837 N.W.2d at 428.
Id. at 69394, 837 N.W.2d at 428 (Kelly, J., dissenting).
Id. at 69394, 837 N.W.2d at 42829.
Id. at 701, 837 N.W.2d at 433.
People v. Harris, 495 Mich. 120, 122, 845 N.W.2d 477, 479 (2014).
Id. at 121, 845 N.W.2d at 479.
Id. at 123, 845 N.W.2d at 480.
Id.
Id.
Id. at 124, 845 N.W.2d at 480.
Id.
Id.
Id.
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A jury convicted the defendant of all charges, and the defendant filed
an appeal with the court of appeals alleging that there was insufficient
evidence to convict him of extortion.196 Specifically, the defendant
argued that he did not compel the victim to do an action that was serious
in nature or had significant value.197
The court of appeals affirmed the convictions, but it acknowledged
that precedent198 held that only serious acts could support a conviction
under the against his will prong of the extortion statute . . . .199 The
Michigan Supreme Court granted leave to appeal to determine what
elements a prosecutor would have to prove to convict a defendant of
extortion.200
The Michigan Supreme Court held that the defendant was properly
convicted of extortion.201 The court concluded that in its decision People
v. Fobb, the court of appeals added language that it should not have.202
The supreme court reasoned that the plain language of the extortion
statute was clear: the word any means just thatone or more without
specification.203 The court opined that the legislature intended to create a
broad net when defining what act would suffice for the extortion statute,
which is why it chose to use the word any.204
Additionally, the court held that the statute on its face placed citizens
on notice about what conduct is prohibited.205 Specifically, the court
noted that the statute included the word malicious, which provided a
scienter requirement and guidance as to what behavior was precluded
under the statute.206 Therefore, the court overruled the decisions in
196. Id.
197. Id. at 125, 845 N.W.2d at 481.
198. People v. Fobb, 145 Mich. App. 786, 787, 378 N.W.2d 600, 601 (1985). Fobb
holds that a person must compel an act that has serious consequences, even though the
plain language of the statute does not contain the word serious but only states any act.
Id.
199. Harris, 495 Mich. at 125, 845 N.W.2d at 481.
200. Id. at 126, 845 N.W.2d at 481.
201. Id. at 139, 845 N.W.2d at 489.
202. Id. at 131, 845 N.W.2d at 484.
203. Id. (citing RANDOM HOUSE WEBSTERS COLLEGE DICTIONARY (2d ed. 1997)).
204. Harris, 495 Mich. at 132, 845 N.W.2d at 485.
205. Id. at 13439, 845 N.W.2d at 48688.
206. Id. at 138, 845 N.W.2d at 488. The court looked to a non-extortion case, People v.
Boomer, 250 Mich. App. 534, 655 N.W.2d 255 (2002), that addressed the
constitutionality of a statute that prohibited a person from using vulgar language in front
of children. Harris, 495 Mich. at 136, 845 N.W.2d at 487. The Boomer court held that
statute was facially vague because it didnt provide fair notice about what conduct was
prohibited. Id. at 137, 845 N.W.2d at 487. A reasonable person would have varying
opinions about what obscene, vulgar, or insulting language was, and therefore, the statute
promoted arbitrary and discriminatory enforcement. Id. The court used the Boomer case
616
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People v. Fobb and People v. Hubbard to the extent that those cases
required an act to have serious consequence to the victim.207 As a
result, the supreme court affirmed the court of appeals decision and
upheld the defendants convictions.208
C. When Do I Have to Know That I Possess a Dangerous Animal?
Before or After It Attacks and Injures a Person?
The timing of an owners knowledge is crucial in Michigans
owning a dangerous animal causing injury statute.209 In People v.
Janes, a pit bull attacked a child, biting her in the face and mauling her
legs.210 Although the pit bull was a bit aggressive with other dogs, the pit
bull had never threatened or attacked people during its six weeks at the
owners home.211 The pit bull was rescued from a local shelter and, to the
shelters knowledge, was a friendly dog.212 In fact, the previous owner
indicated that the dog had not attacked anyone or had any biting
incidents, but she did tell the sheriffs department that she was wary of
the dog because it had been abused before she adopted him as a rehab
pet.213 The defendant was charged with owning a dangerous animal
causing serious injury.214
The district court bound the case over and indicated that the crime
was a strict liability offense.215 In circuit court, the defendant argued that
the case should be quashed because the statute requires criminal intent,
and the prosecuting attorney failed to show that he had . . . knowledge
or notice of the dogs dangerous nature . . . .216 The circuit court agreed
with the defendant that the crime was not a strict liability offense but
found that the defendant had been negligent or reckless; therefore, the
court held that any future proceeding should be conducted with the mens
as a comparison to the extortion statute and found that the extortion statute was clear on
its face. Id. at 13639, 845 N.W.2d at 48788.
207. Harris, 495 Mich. at 139, 845 N.W.2d at 488.
208. Id. at 14041, 845 N.W.2d at 489.
209. People v. Janes, 302 Mich. App. 34, 37, 836 N.W.2d 883, 885 (2013).
210. Id. at 39, 836 N.W.2d at 885.
211. Id. at 39, 836 N.W.2d at 88586.
212. Id. at 39, 836 N.W.2d at 886.
213. Id. at 3940, 836 N.W.2d at 886.
214. Id. at 37, 836 N.W.2d at 885; see MICH. COMP. LAWS ANN. 287.323(2) (West
2015).
215. Janes, 302 Mich. App. at 40, 836 N.W.2d at 886.
216. Id.
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that the legislatures intent was to curtail the ownership of an animal that
the owner knows is dangerousnot to punish an owner for the negligent
keeping or handling of the animal.229 As such, the court found that the
prosecution must prove the following elements beyond a reasonable
doubt:
(1) [T]hat the [defendant] owned or harbored a dog or other
animal,
(2) [T]hat the dog or other animal met the definition of a
dangerous animal provided under MCL 287.321(a) before and
throughout the incident at issue,
(3) [T]hat [defendant] knew that the dog or other animal met the
definition of a dangerous animal within the meaning of MCL
287.321(a) before the incident at issue, and
(4) [T]hat the animal attacked a person and caused a serious
injury other than death.230
The court, therefore, remanded the case to the trial court for further
proceedings consistent with the courts opinion.231 But interestingly, in a
short but frank dissent, Judge Jansen indicated that the legislature
intended for the crime to be a strict liability offense.232 Judge Jansen
agreed that the present tense meets was used in the statute, but she
argued that the present tense suggests that an animal can meet the
definition of dangerous animal the very first time it bites or attacks a
person or another dog.233
D. Summer Break and Breaking the Law: A Student, a Substitute
Teacher, and Michigans CSC Statute
A substitute teacher claimed that Michigans third-degree criminal
sexual conduct statute did not apply to him because at the time of the
offense he was not actively teaching, as the school was on summer
break.234 In People v. Lewis, a substitute teacher (or contractual service
229. Id. at 53, 836 N.W.2d at 893.
230. Id. at 54, 836 N.W.2d at 893 (citing MICH. COMP. LAWS ANN. 287.323(2) (West
2015)).
231. Janes, 302 Mich. App. at 54, 836 N.W.2d at 893.
232. Id. at 54, 836 N.W.2d at 893 (Jansen, J., dissenting).
233. Id. at 55, 836 N.W.2d at 894.
234. People v. Lewis, 302 Mich. App. 338, 340, 839 N.W.2d 37, 40 (2013).
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provider, as the school district did not directly employ the defendant)
was accused of engaging in sexual acts with students from the school
district.235 The defendant was charged with violating the statute that
prohibits a student who is at least sixteen years of age and less than
eighteen years of age from engaging in sexual penetration with another
person who is either a substitute teacher or a contractual service
provider, among other roles of authority.236 After a mistrial and then the
second trial judge being disqualified from the case, the successor judge
requested that the parties brief the issue of whether the third-degree
criminal sexual conduct statute applied if the acts occurred over the
summer.237 After each party briefed the issue, the trial court dismissed
the case, holding that as a matter of law the defendant did not qualify as a
substitute teacher or contractual service provider under the statute
because it was undisputed that the acts occurred over summer break.238
The prosecution appealed.239
The court of appeals held that the statute applied even when the acts
occurred over summer break.240 The court reasoned that the purpose of
the law was to protect vulnerable students from abuse that may occur
because of positions of authority.241 The court noted that the teachers
relationship and authority is what the statute focused onnot the timing
of the penetration.242 Therefore, the court of appeals reversed the trial
courts decision and remanded the case for reinstatement of the
charges.243
E. Dont Take Away My PIP Benefits: Unlawfully Taking Away and
How It Affects Insurance Benefits
In a case of statutory interpretation, the Michigan Supreme Court
clarified that the mens rea element of unlawful taking away is present in
Michigans joyriding statute, even if the language does not expressly
mention intent.244 In Rambin v. Allstate Insurance. Co., a plaintiff was
severely injured when the motorcycle he was operating was involved in a
235. Id. at 339, 839 N.W.2d at 3940.
236. Id. at 34344, 839 N.W.2d at 4142 (citing MICH. COMP. LAWS ANN. 750.520d
(1)(e) (West 2015)).
237. Lewis, 302 Mich. App. at 340, 839 N.W.2d at 40.
238. Id.
239. Id.
240. Id. at 34748, 839 N.W.2d at 4344.
241. Id. at 347, 839 N.W.2d at 43.
242. Id. at 347, 839 N.W.2d at 4344.
243. Id. at 348, 839 N.W.2d at 44.
244. Rambin v. Allstate Ins. Co., 495 Mich. 316, 320, 852 N.W.2d 34, 3536 (2014).
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car accident.245 The plaintiff was seriously injured, and he filed a lawsuit
seeking benefits.246 The car involved was uninsured, and the plaintiff
admitted that the motorcycle he was driving at the time of the accident
was owned and registered to an unknown third party.247 This unknown
third party had a vehicle insured under Allstate Insurance, so the plaintiff
argued that he should receive PIP benefits from Allstate.248 In the
alternative, the plaintiff argued that if Allstate was not the responsible
insurer, then Titan Insurance should pay him PIP benefits because the
claim was assigned to it through the Michigan Assigned Claims
Facility.249 Both insurance companies filed motions for summary
disposition, arguing that the plaintiff was precluded from benefits.250
Titan alleged that the plaintiff was precluded from receiving PIP benefits
because the plaintiff was involved in the theft of the motorcycle; Allstate
alleged that the plaintiff was precluded from benefits because he had
taken the motorcycle unlawfully.251
The plaintiff, in turn, filed a summary disposition motion claiming
that he did not take the motorcycle unlawfully or with knowledge that he
lacked authority to take it.252 To fully understand the courts opinion, a
review of the facts is needed.
The plaintiff claimed that a friend offered to loan him a bike for a
group ride that night.253 The plaintiff claimed that he went to his friends
house, and the friend gave him the keys to the bike and told him that he
could use it.254 According to the plaintiff, he collided with an uninsured
motor vehicle.255 The court found it interesting that the plaintiff never
called the police when the accident occurred, despite the plaintiffs
serious injuries.256 Further, the plaintiff and his club-member friend left
the motorcycle on the side of the road and fled the scene.257 When
questioned by the police, the plaintiff first denied having any connection
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with the motorcycle.258 But the plaintiff recanted that story and indicated
that a fellow motorcycle club member, whom he had never met before
that night, loaned him the bike.259 When asked about the motorcycle
member, the plaintiff did not have his phone number, did not know
where he lived, and did not try to contact him after the accident.260
The trial court granted Allstate and Titans motions for summary
judgment.261 The court of appeals reversed the trial courts summary
judgment and found that the plaintiff did not take the motorcycle
unlawfully under the Michigan joyriding statute.262 The court made a
factual finding that from the drivers perspective there was no unlawful
taking, and based on the record, there was no genuine issue of material
fact that the plaintiff did not take the motorcycle unlawfully.263 Allstate
applied for leave to appeal, and the Michigan Supreme Court requested
that the parties address the following issue:
[W]hether the plaintiff took the motorcycle . . . unlawfully
within the meaning of MCL 500.3113(a), and specifically,
whether taken unlawfully under MCL 500.3113(a) requires the
person . . . using [the] motor vehicle or motorcycle to know
that such use has not been authorized by the vehicle or
motorcycle owner . . . and, if so, whether the Court of Appeals
erred in concluding that plaintiff lacked such knowledge as a
matter of law given the circumstantial evidence presented in this
case.264
The Michigan Supreme Court began its analysis by evaluating
whether the crime of taking unlawfully under the applicable statute was a
strict liability or general intent crime.265 The court held that criminal
jurisprudence principles require a mens rea requirement unless the
legislature intends to dispense with it.266 And in the unlawful taking
statute, the legislature had used the phrase without an intent to steal,
which was the legislatures way of removing the specific intent to
258. Id.
259. Id.
260. Id. at 335, 852 N.W.2d at 4344. The court made note that the plaintiffs story
could lead a jury to conclude that he knew the motorcycle was stolen. Id. at 334, 852
N.W.2d at 43.
261. Id. at 323, 852 N.W.2d at 37.
262. Id. at 324, 852 N.W.2d at 38 (citing MICH. COMP. LAWS ANN. 500.3113 (a) (West
2015)).
263. Rambin, 495 Mich. at 324, 852 N.W.2d at 38.
264. Id. at 325, 852 N.W.2d at 38 (alterations in original).
265. Id. at 325, 852 N.W.2d at 3941.
266. Id. at 32930, 852 N.W.2d at 41.
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permission.288 Again, the JTC found that the respondents testimony was
not credible and that she had committed forgery.289
Finally, the respondent was charged with numerous allegations of
having lied to the JTC.290 The JTC found that the respondent lied about
contacting Judge Brennans office, signing documents without her
attorneys permission, and other misrepresentations surrounding her
testimony about the case.291 As a result of the JTCs findings, the JTC
recommended that the respondent be suspended without pay and
assessed costs in the amount of $8,498.40.292
The Michigan Supreme Court agreed with all of the JTCs findings,
but the supreme court did not agree with the JTCs sanction.293 In its
review of the JTCs findings, the court looked at whether there was a
pattern and practice of misconduct, and it found that there was.294 The
court also found that the respondent used her position as a sitting judge
as leverage, committed misconduct that was prejudicial to the
administration of justice, and engaged in conduct that was premeditated
or deliberated.295 The court was particularly concerned with how the
respondent lied under oath.296 The court stated that testifying falsely
under oath is entirely incompatible with judicial office and warrants
removal.297 Therefore, the Michigan Supreme Court found that the JTC
sanction did not sufficiently address the egregiousness of the
respondents behavior.298 Hence, the supreme court ordered the
respondent to pay costs of $8,498.40 and removed her from judicial
office.299
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not commit plain error when it did not give the involuntary manslaughter
instruction.309
The defendant also claimed that the prosecutor committed
prosecutorial misconduct during closing argument.310 The court again
noted that the defendant failed to preserve this issue for appeal, but it still
addressed the argument.311 The court opined that a prosecutor may not
vouch for the credibility of witnesses, but a prosecutor may [a]rgue the
evidence and all reasonable inferences from the evidence as they relate to
their theory of the case.312 In that light, the court found that when the
prosecutor used the terms I submit to you or I think, the prosecutor
was not making a personal statement as to the belief of the witnesses but
rather was making an argument based on the reasonable inferences from
the evidence.313
Similarly, the defendant also contested his attorneys effectiveness.
The defendant claimed that his attorney was ineffective for several
reasons, all of which the court found meritless.314 The court was
particularly clear that counsel was not ineffective for failing to advance
meritless arguments or raise futile objections . . . .315
The court was also unpersuaded by the defendants arguments that
the sentencing offense variables (OV) were scored improperly.316 The
court reasoned that the defendant was the leader of the crime (OV 14),
the defendant did interfere with the administration of justice when he hid
evidence after the crime (OV 19), and he also was properly scored points
for causing a life-threatening wound to the deceased victims head (OV
4).317 Ultimately, the court found all of the defendants arguments
unpersuasive and affirmed the trial courts order.318
309. Id.
310. Id. at *5.
311. Id.
312. Id. (quoting People v. Seals, 285 Mich. App. 1, 22, 776 N.W.2d 314, 328 (2009)).
313. Id. at *56.
314. Id. at *7.
315. Id.
316. Id.
317. Id. at *89. The court explained that because the victim died and the defendant
was charged with murder, he not only killed the victim, but he also caused a physical
injurya gunshot wound to the head. Id. at *8. Because homicide was the charged
offense, the defendant could not receive the 100 points for the death, but the defendant
could receive 25 points for causing a life threating injury. Id.
318. Id. at *10.
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327.
328.
329.
330.
331.
332.
333.
334.
335.
336.
337.
338.
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did leave the state after a brief vacation and under his mothers
guidance.339
Further, the court did not agree with the juveniles argument that an
inaccuracy in the extradition documents made the extradition warrant
false.340 Specifically, the court noted that the misstated information on
the extradition documents was not even required on an extradition
demand.341 Therefore, any alleged inaccuracies were inconsequential.342
Finally, the court also denied the juveniles argument that extraditing
him would constitute cruel and unusual punishment.343 The juvenile
argued that he was only fifteen years old and removal to Georgia would
take him away from his family at a tender age.344 The court explained
that the United States Constitution and the Michigan Constitution both
contain cruel and unusual punishment provisions, but both require that
the defendant be subject to punishment.345 And because the juvenile had
not yet been prosecuted and found guilty, there was no punishment to
trigger a cruel and unusual punishment argument.346 In sum, the court
rejected the entirety of the juveniles arguments.
B. How Much Does Your Crime Cost?What Did the Legislature Intend
with Any Cost?
The Michigan Supreme Court has spoken: gone are the days when a
court could randomly and without reason assess a court cost under
MCLA section 769.1k (court-cost statute), which addressed criminal
court costs.347
In 2011, a defendant pled guilty to obtaining a controlled substance
by fraud.348 The defendant was sentenced to imprisonment and assessed
various court costs.349 Of issue in this case was whether the court could
assess $1,000 in unspecified court costs.350 The prosecutor alleged that
even though the specific statute under which the defendant pled guilty
did not allow the court to impose costs, the court-cost statute provided
the court with the independent authority to assess any cost that the court
339.
340.
341.
342.
343.
344.
345.
346.
347.
348.
349.
350.
Id.
Id. at 64853, 840 N.W.2d at 77173.
Id.
Id.
Id. at 65255, 840 N.W.2d at 77374.
Id.
Id. (emphasis added).
Id.
MICH. COMP. LAWS ANN. 769.1k (West 2015).
People v. Cunningham, 496 Mich. 145, 14748, 852 N.W.2d 118, 120 (2014).
Id.
Id.
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may have incurred.351 The defense argued that the court-cost statute only
allowed the court to impose costs that the legislature had already
separately authorized in other statutes.352
The court held that the court-cost statute only provided the court
authority to impose costs that were authorized in other separate
statutes.353 The court reasoned that the legislature must have intended
any cost to mean costs that the legislature had separately authorized.354
Specifically, the court reasoned that the statute that requires the
defendant to reimburse the state for prosecution costs would be null
because all reimbursement costs could be assessed under the any cost
provision.355 Instead, the court reasoned that the legislatures decision to
enact many provisions that provide courts the power to issue costs for
certain circumstances shows that it did not intend to do a useless thing
by providing for certain costs when it had a broad catchall any cost.356
Rather, the court reasoned that it would seem logical that the legislature
viewed the court-cost statute as incorporating by reference all the
possible statutory costs that a Michigan court has available at a criminal
sentencing, instead of having to list each cost.357 Therefore, the supreme
court reversed the decision of the court of appeals and vacated the order
assessing $1,000 dollars in court fees.358
C. Crime Victims Rights FundNot to Punish, Just to Help
Timing is everything in life, and when a defendant robbed a bank in
March 2010, the current crime victims rights assessment was $60 for a
felony.359 But times changed, and when the bank robber was sentenced in
2011, the assessment had increased to $130 dollars for a felony.360 The
bank robber alleged that the increase in the assessment was an increase
of his punishment, violating the Ex Post Facto Clauses of the Michigan
and United States Constitutions.361
The court rejected the defendants argument and held that the Crime
Victims Rights statute was a civil remedy not so punitive in effect or
351.
352.
353.
354.
355.
356.
357.
358.
359.
360.
361.
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purpose as to render its intention uncivil.362 The court reasoned that the
very text of the word assessment reflected legislative intent to distinguish
the cost from a fine or punishment.363 Further, the court considered the
timing and purpose of the assessment and found that it indicated nonpunitive measures.364 In fact, the supreme court went through the
Mendoza-Martinez factors to assess whether the crime victims act has a
punitive purpose or effect.365
After careful review of all of the factors, the court determined that
the assessment was not a criminal fine, did not have a punitive purpose,
and was not excessive in its purpose.366 Therefore, the court affirmed the
judgment of the court of appeals and found that the Crime Victims
Rights Act does not violate the Ex Post Facto Clauses.367
D. Making Your Victim Whole: What Does Full Restitution Mean?
A defendant is responsible for making his or her victim whole, and
that includes the travel expenses that the victim may have to incur to
secure his or her stolen property.368 In People v. Garrison,369 the
Michigan Supreme Court upheld a trial courts award of nearly $1,000
dollars in travel expenses to secure four snowmobiles stolen from a
victims vacation home in Cheboygan, Michigan.370
The court held that the Crime Victims Rights Act and Michigans
general restitution statute authorize courts to provide full restitution to
a crime victim.371 The court acknowledged that the restitution was
limited to a victims losses due to the defendants course of conduct that
gave rise to the conviction . . . .372 Although the court acknowledged
that the legislature never expressly mentioned travel expenses in any
statutory subsections governing property loss, the court opined that
nothing in the statutes text indicated that only expressly mentioned
losses were permitted.373 Instead, the court stated that the legislature
362. Id. at 4950, 845 N.W.2d at 731.
363. Id. at 3941, 845 N.W.2d at 726 (emphasis added).
364. Id. at 4144, 845 N.W.2d at 72728.
365. Id. at 4344, 845 N.W.2d at 728 (citing Kennedy v. Mendoza-Martinez, 372 U.S.
144, 16869 (1963)).
366. Id. at 4350, 845 N.W.2d at 72831.
367. Id. at 4850, 845 N.W.2d at 731.
368. People v. Garrison, 495 Mich. 362, 365, 852 N.W.2d 45, 46 (2014).
369. Id.
370. Id. at 36566, 852 N.W.2d at 46.
371. Id. at 37375, 852 N.W.2d at 51.
372. Id. at 372, 852 N.W.2d at 50 (quoting MICH. COMP. LAWS ANN. 780.766(2)
(West 2015)).
373. Id. at 36873, 852 N.W.2d at 4850.
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court overruled the trial courts sentence and remanded the case for
resentencing under the proper guidelines.398
F. How Old Am I? The Importance of Age Calculation in Criminal
Sentencing
The Michigan Supreme Court clarified an issue that permeates all
facets of the law: How do the Michigan courts calculate age? In People
v. Woolfolk, the court of appeals was faced with determining when a
person reaches their ageor stated another wayhow does the
Michigan judicial and legislative branches calculate birthday?399
The defendant was found guilty of first-degree murder and felony
firearm.400 All parties agree that the murder occurred on the evening
before the defendants eighteenth birthday.401 The trial court sentenced
the defendant to a mandatory life sentence plus two years for the felony
firearm conviction.402 The defendant filed an appeal claiming that the
mandatory life sentence was cruel and unusual punishment in light of the
Supreme Courts opinion in Miller v. Alabama.403 The defendant also
claimed that his trial counsel was ineffective for not objecting to the
defendants pre-arrest delay and not objecting to the use of a single photo
for identification purposes.404
The court of appeals affirmed the defendants convictions but held
that the defendant was entitled to resentencing under Miller.405 First, the
court addressed the defendants delay-in-arrest claim and found that the
defendant was arrested once the prosecution had sufficient evidence and
that the delay was minimal and did not cause actual and substantial
prejudice.406 The court reasoned that because the prosecution had to
interview an out-of-state witness, there were jurisdictional and
evidentiary issues that caused the delay, and the prosecution should wait
for the collection of sufficient evidence before charging a suspect, even
when that wait is extended by the disappearance of a key witness.407
398. Id.
399. People v. Woolfolk, 304 Mich. App. 450, 45859, 848 N.W.2d 169, 175 (2014).
400. Id. at 45152, 848 N.W.2d at 171.
401. Id. at 45253, 848 N.W.2d at 172.
402. Id.
403. Id. at 45859, 848 N.W.2d at 175 (citing Miller v. Alabama, 132 S. Ct. 2455
(2012)).
404. Id. at 45358, 848 N.W.2d at 17274.
405. Id. at 50607, 848 N.W.2d at 200.
406. Id. at 45657, 848 N.W.2d at 174.
407. Id. at 45457, 848 N.W.2d at 17374 (citing People v. Herndon, 246 Mich. App.
371, 39091, 633 N.W.2d 376, 39192 (2001)).
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The court also disagreed with the defendants claim that a threemonth delay between the felony complaint and arraignment was
unreasonable.408 The court noted that it found the delay minimal, and the
defendant had not shown how the delay resulted in actual and substantial
prejudice to his case.409
Additionally, the defendant claimed that his attorneys failure to
object to the polices use of a single photo of him for identification
purposes was ineffective assistance of counsel.410 The court again
disagreed with the defendant and did not find that the defendants
attorney was ineffective.411 In fact, the court held that the witness already
knew the identity of the defendant as the shooter, and therefore, the use
of the photograph was only to confirm the identity of the person the
witness had already identified.412 Therefore, the court reasoned that the
use of the picture did not create a likelihood of misidentification, and any
objection from the defendants defense attorney would have been
meritless.413
Finally, the court addressed the defendants argument that a
mandatory life sentence was cruel and unusual punishment.414 The court
began its analysis by reviewing the Miller opinion, which held that the
court cannot sentence juveniles to life without parole.415 The court
acknowledged that under Miller, a juvenile is someone who is less than
17 years of age . . . [but also] between 17 and 18 years of age.416 The
court, however, immediately noted that neither the Miller case, the Carp
case, nor any statute addressed how to calculate when the defendant
reaches the age of eighteen.417 Hence, the court engaged in a detailed,
historical view of the competing age-calculation methods: the common
law birthday rule or the birthday rule.418
The common law birthday rule states that a person reaches their age
at the first moment of the day prior to the anniversary date of his [or
her] birth.419 The historical reasoning for the common law birthday rule
408. Id. at 45657, 848 N.W.2d at 174.
409. Id.
410. Id.
411. Id.
412. Id. at 45758, 848 N.W.2d at 174.
413. Id. at 45658, 848 N.W.2d at 17475.
414. Id. at 45859, 848 N.W.2d at 175.
415. Id.
416. Id. at 45960, 848 N.W.2d at 175 (quoting People v. Carp, 298 Mich. App. 472,
53637, 828 N.W.2d 685, 723 (2012)).
417. Id. at 46062, 848 N.W.2d at 176.
418. Id. at 46075, 848 N.W.2d at 17684.
419. Id. at 46062, 848 N.W.2d at 176 (citing Nelson v. Sandkamp, 34 N.W.2d 640,
642 (Minn. 1948) (citations omitted)).
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holds that fractions of days do not count towards ones age.420 On the
other hand, the birthday rule calculates age on the anniversary date of
his or her birth.421 The court acknowledged that some courts have
chosen to adopt the birthday rule instead of the common law rule.422 But
when the court reviewed Michigan jurisprudence, it noted that no
Michigan case, court, or statute has ever compared and then opted for
either the common law birthday rule or the birthday rule.423 In its attempt
to clarify the issue, the court reviewed the Miller opinion, the Michigan
Constitution, the expressions of the Michigan Legislature and the
Michigan Supreme Court, and finally the court reviewed two opinions
from the Michigan Attorney Generals office.424
The court found a lack of guidance from any authority, but the court
did consider a 1937 case from the Michigan Supreme Court where the
court opined that an insurer reached his age on his birthday.425 While the
court noted that the case did not directly address how age is calculated,
the court found the opinion persuasive.426 The court also reviewed a
Michigan Supreme Court opinion from 2009 that appeared to have
applied the birthday rule to a criminal sexual conduct statute.427
After an exhaustive analysis of historical framework and
jurisprudence, the court determined that no Michigan case ever applied
the common law birthday rule, and as such, the court was not persuaded
that Michigan ever adopted that rule.428 More importantly, the court
found that the Michigan Supreme Court had commonly and routinely
used language in its opinions that were consistent with the birthday
rule.429 Therefore, the court of appeals held that if the common law
birthday rule was ever adopted in Michigan, it was long ago abrogated
by decisions of the Michigan Supreme Court and the Michigan
Legislatures subsequent statutory enactments . . . .430 It follows,
naturally then, that the defendant was seventeen on the day he committed
420. Id. at 46264, 848 N.W.2d at 17778.
421. Id. at 464, 848 N.W.2d at 178 (quoting In re Robinson, 464 S.E.2d 86, 88 (N.C.
Ct. App. 1995)).
422. Id. at 46467, 848 N.W.2d at 178179. The court reviewed several states
including Kansas, North Carolina, Pennsylvania, Oklahoma, and Oregon that adopted the
birthday rule over the common law birthday rule. Id. at 46567, 848 N.W.2d at 17879.
423. Id. at 47578, 848 N.W.2d at 18485.
424. Id. at 477501, 848 N.W.2d at 18597.
425. Id. at 498500, 848 N.W.2d at 19596.
426. Id. at 499, 848 N.W.2d at 196.
427. Id. at 50203, 848 N.W.2d at 198. See generally People v. Chapman, 485 Mich.
859, 771 N.W.2d 770 (2009).
428. Woolfolk, 304 Mich. App. at 50405, 848 N.W.2d at 199.
429. Id.
430. Id. at 505, 848 N.W.2d at 199.
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court should have allowed him to assert a section four immunity defense,
as well as a section eight affirmative defense.441
As to the defendants section four immunity defense, the defendant
argued that he was possessing usable marijuana as described in the act,442
but the amount he possessed did not exceed the allowable amount under
section four.443 The court of appeals opined that the MMMA was very
clear on its face as to the definition of marijuana and the definition of
usable marijuana.444 The court reviewed the plain language of the
definition of marijuana as contained in the act and determined that the
brownies were marijuana, not usable marijuana.445 Specifically, the court
found that the brownies did not qualify as usable marijuana because
the brownies contained a THC extractnot dried leaves or flowers or
any mixture or preparation thereof.446 Therefore, the court found that
because the defendant possess[ed] edible products that were not usable
marijuana under the MMMA, section four immunity did not apply to
the defendant.447
As to the defendants section eight affirmative defense argument, the
defendant admitted that he did not raise this issue in the trial court
because, according to the defendant, he did not qualify for the
affirmative defense because he had to first fulfill the requirements of
section four under the law at the time of his trial.448 The court of appeals
found that because the law had changed during the pendency of the
defendants appeal, he was deprived of a substantial right that resulted in
plain error.449 Therefore, the court decided that the proper procedure to
handle a section eight affirmative defense was for the defendant to show,
during an evidentiary hearing, that he meets the elements of a section
eight defense.450 The court explained that if the defendant meets all the
elements of a section eight affirmative defense and there were material
questions of fact, then the defendant would be entitled to a new trial,451
was present. Id. at 60103, 837 N.W.2d at 23. The court refused to adopt the defendants
marijuana quantity measurement. Id. at 60304, 837 N.W.2d at 24.
441. Id. at 608, 837 N.W.2d at 26.
442. MICH. COMP. LAWS ANN. 333.26423(k) (West 2015) (defining usable marijuana
as the dried leaves and flowers of the marihuana plant, and any mixture or preparation
thereof).
443. Carruthers, 301 Mich. App. at 60103, 837 N.W.2d at 23.
444. Id. at 60208, 837 N.W.2d at 2326.
445. Id. at 60709, 837 N.W.2d at 26.
446. Id.
447. Id. at 611, 837 N.W.2d at 28.
448. Id. at 61118, 837 N.W.2d at 2831.
449. Id. at 61517, 837 N.W.2d at 3031.
450. Id. at 617, 837 N.W.2d at 31.
451. Id. at 618, 837 N.W.2d at 31.
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or if the defendant met all of the elements of a section eight defense with
no questions of fact, he would be entitled to a dismissal of the possession
charge.452 Hence, the case was remanded to the trial court for an
evidentiary hearing to determine what remedy applied to the
defendant.453
B. But I Didnt Think the Law Applied to Me!
After nearly four years in the Michigan courts, the court of appeals
found that there was nothing ambiguous about the MMMAs provisions
governing dispensaries.454 In the consolidated cases of People v.
Johnson, seven defendants owned and operated a marijuana
dispensary.455 The marijuana dispensary sold marijuana and candy
containing marijuana to undercover drug agents.456 As a result, each of
the seven defendants was charged with various crimes under the
Michigan public health code.457 After numerous motions, the trial court
determined that while it was not giving retroactive effect to the case of
Michigan v. McQueen,458 the court did find that certain provisions of the
MMMA statute were ambiguous and created due process
ramifications.459 As a remedy, the trial court determined that the rule of
lenity should apply to the case, and the court granted the defendants
motions to dismiss.460
The court of appeals reversed the trial courts decision and remanded
the case for reinstatement of charges against the defendants.461 The court
reasoned that because the public health code prohibits a person from
possessing, using, manufacturing, or delivering marijuana, the
defendants have the burden of showing that they were entitled to the
protections of the MMMAspecifically that they were qualifying
patients who had registry identification cards or that they were primary
caregivers who had been issued registry identification cards.462
But instead, the defendants argued that under the MMMA they could
not have predicted that their behavior was illegal because the act was
452. Id.
453. Id.
454. People v. Johnson, 302 Mich. App. 450, 46263, 838 N.W.2d 889, 896 (2013).
455. Id. at 454, 838 N.W.2d at 891.
456. Id. at 45256, 838 N.W.2d at 89192.
457. Id. at 45657, 838 N.W.2d at 893.
458. 293 Mich. App. 644, 811 N.W.2d. 513 (2011), affd on other grounds, 493 Mich.
135, 828 N.W.2d 644 (2013).
459. Johnson, 302 Mich. App. at 45657, 838 N.W.2d at 893.
460. Id. at 456, 838 N.W.2d at 892.
461. Id. at 46566, 838 N.W.2d at 898.
462. Id. at 45961, 838 N.W.2d at 895.
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ambiguous.463 The court noted that while the defendants claimed that the
act was ambiguous, they never clearly asserted which provision was
ambiguous and caused them to believe that their activity was lawful.464
The court noted that the defendants failed to point to any provision in the
MMMA where it could be reasonably inferred that marijuana
dispensaries were legal business entities.465 The court held that the trial
court abused its discretion when it found that the phrase using or
administering marijuana was ambiguous because the court did not
consider if each of the seven defendants qualified as a qualifying
patient or primary caregiver under the statute.466
Further, the court of appeals disagreed with the trial courts opinion
that the rule of lenity applied to this case.467 The court held that the rule
of lenity does not apply to the public health code, so the defendants
arguments failed.468
Lastly, the court of appeals held that the McQueen case, which
addressed the legality of operating a marijuana dispensary, should have
been retroactively applied.469 In support of its decision, the court held
that the defendants should have foreseen the courts interpretation of the
MMMA, so the application of McQueen did not have any due process or
ex post facto legal concerns.470 Therefore, the court of appeals reversed
the trial courts holding and remanded the case for reinstatement of the
charges and further proceedings consistent with the courts ruling.471
C. Living in the Mitten: You Have to Be a Michigan Resident to Seek
Immunity Under the MMMA
The court of appeals clarified that the court must determine if a
person qualifies for immunity under section four of the MMMAnot the
jury.472 In People v. Jones, the defendant was charged with possession of
marijuana with the intent to deliver.473 The defendant moved for
dismissal of the charges because she claimed that she was protected
under section four of the actthe immunity provision.474 The prosecutor
463.
464.
465.
466.
467.
468.
469.
470.
471.
472.
473.
474.
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641
argued that the defendant was not entitled to immunity because she was
not a Michigan resident at the time she applied for the registry card or at
the time of her arrest.475 The trial court held an evidentiary hearing to
determine if the defendant was a Michigan resident.476 After the hearing,
the trial court concluded that there were questions of fact that existed
about whether the defendant was a Michigan resident at the time.477 As
such, the trial court held that it could not determine as a matter of law if
the defendant was entitled to immunity and the immunity issue must go
to the jury.478 The prosecutor appealed.479
The court of appeals held that a person claiming immunity under
section four of the MMMA must be a Michigan resident.480 The court of
appeals reasoned that while matters of fact finding are traditionally left to
the jury, there are instances where the court must make factual
findings.481 The court reasoned that the statute had a section that
addressed visiting qualifying patients as a person who is not a
resident of this state or who has been a resident of this state for less than
30 days.482 Because the statute specifically references a section for
visitors, the court of appeals reasoned that Michigan residency was an
implied prerequisite to the valid possession of a registry card.483
Additionally, the court of appeals reasoned that allowing the trial court to
determine if immunity applied was more efficient because immunity
should be afforded at the earliest stages of the investigation.484 It would
hinder the purpose of immunity (to protect people from prosecution) if
the process required citizens to wait for a jury to decide if immunity
applied to them.485 Therefore, the court of appeals held that for immunity
to apply, the person must be a Michigan resident, and whether the
475. Id.
476. Id. at 57071, 837 N.W.2d at 11.
477. Id.
478. Id.
479. Id.
480. Id. at 57879, 837 N.W.2d at 1415.
481. Id. at 57274, 837 N.W.2d at 12; see also People v. Sexton, 461 Mich. 746, 609
N.W.2d 822 (2000) (highlighting that the trial court determines if a defendants
statements are voluntary); People v. Juillet, 439 Mich. 34, 475 N.W.2d 786 (1991)
(stating that the court determines if a defendant was entrapped under the criminal statute);
People v. Frohriep, 247 Mich. App. 692, 637 N.W.2d 562 (2001) (stating that a court
makes factual findings when determining whether a consent to search was valid).
482. Jones, 301 Mich. App. at 578, 837 N.W.2d at 14 (quoting MICH. COMP. LAWS
ANN. 333.26423(l) (West 2015)).
483. Id. at 57879, 837 N.W.2d at 1415.
484. Id. at 577, 837 N.W.2d at 14.
485. Id.
642
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8.
9.
10.
11.
12.
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647
32. Whistleblowers Protection Act (WPA), MICH. COMP. LAWS ANN. 15.361
15.369 (West 2014).
33. Henry v. Laborers Local 1191, 495 Mich. 260, 848 N.W.2d 130 (2014).
34. Wurtz v. Beecher Metro. Dist., 495 Mich. 242, 848 N.W.2d 121 (2014).
35. Landin v. Healthsource of Saginaw, Inc., 305 Mich. App. 519, 854 N.W.2d 152
(2014).
36. Henry, 495 Mich. at 27071, 848 N.W.2d at 13536.
37. Id. at 271, 848 N.W.2d at 136.
38. Id. at 271, 848 N.W.2d at 136; see 29 U.S.C.A. 401531 (West 2014).
39. Henry, 495 Mich. at 272, 848 N.W.2d at 136.
40. Id. at 272, 848 N.W.2d at 136; see 29 U.S.C.A. 151169 (West 2014).
41. Henry, 495 Mich. at 272, 848 N.W.2d at 136.
42. Henry v. Laborers Local 1191, 493 Mich. 934, 825 N.W.2d 578 (2013).
43. Henry, 495 Mich. at 269, 848 N.W.2d at 134.
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the LMRDA or the NLRA but holding that the claims involving working
conditions were preempted.62
In his partial dissent, Justice Brian K. Zahra disagreed that the
NLRA did not preempt plaintiffs claim of retaliation for reporting
possible criminal violations to the Department of Labor, finding instead
that the plaintiffs reporting of alleged crimes was arguably subject to
the NLRA.63 In Justice Zahras view, the right of employees to assist
labor unions, which the NLRA expressly grants, encompasses the right to
report suspected criminal activity by union leaders because such a report
serves to assist the union.64 As Justice Zahra wrote: Plaintiffs reported
alleged criminal conduct that triggered protection under the WPA and
simultaneously assisted a labor organization, which entitles plaintiffs
activity to NLRA protection.65 Justice Zahra also concluded that no
exceptions to preemption applied because discharging an employee for
assisting a labor organization (by reporting suspected crimes) is a
preeminent concern of the NLRA, to which Michigans interest in
resolving the dispute should give way.66
2. Applicants Under the WPA
In Wurtz v. Beecher Metropolitan District,67 the Michigan Supreme
Court held that because the WPA applies only to current employees, it
offered no protection to Richard Wurtz, a contract employee whose term
of employment expired without renewal by his employer. The court
concluded that because the WPA does not apply when an employer
decides not to hire a job applicant, it likewise has no application to a
contract employee whom the employer declines to hire for a new term of
employment.68
Richard Wurtz, an attorney, was employed as the part-time
administrator of the Beecher Metropolitan Water District from February
1, 2000, to February 1, 2010 under a contract that he drafted.69 He
reported to a five-member board of directors, with which he began to
clash in 2008 when he reported an alleged violation of the Open
62.
63.
64.
65.
66.
67.
68.
69.
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the Districts motion for summary disposition because Wurtz had worked
for his entire contract and had not been discharged.84 In a 2-1 decision,
the court of appeals reversed, with the majority concluding that failure to
renew a fixed-term employment agreement was an adverse employment
action.85 The supreme court granted leave to appeal.86
The court divided its analysis of Wurtzs claim into two steps: first,
whether a contract employee seeking a new term of employment should
be treated as a new job applicant and second, whether the WPA applies
to job applicants who are not hired.87 The court concluded initially that
[a]bsent some express obligation stating otherwise, a contract employee
has absolutely no claim to continued employment after his contract
expires.88 An employer considering renewal of contract thus engages in
the same decisional process used in deciding whether to hire an
employee in the first place.89 According to the court, in the WPA context,
no relevant difference exists between a new job applicant and a current
contract employee seeking a new term of employment.90
The court next turned to the language of the WPA, which states: An
employer shall not discharge, threaten, or otherwise discriminate against
an employee regarding the employees compensation, terms, conditions,
location or privileges of employment . . . .91 The court noted that the
WPA specifically defines an employee as a person who performs a
service for wages or other remuneration under a contract of hire, written
or oral, express or implied,92 but omits any reference to job applicants
or prospective employees.93 This differs from Michigans Elliott Larsen
Civil Rights Act (ELCRA),94 which expressly prohibits the
discriminatory or retaliatory failure to hire or recruit, 95 or federal civil
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653
Id.
Id. at 256, 848 N.W.2d at 12728.
Id. at 256, 848 N.W.2d at 12829.
Id. at 25657, 848 N.W.2d at 129.
Id. at 257, 848 N.W.2d at 129 (emphasis in original).
Id. at 258, 848 N.W.2d at 129.
Id. at 258, 848 N.W.2d at 130.
Id.
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655
656
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657
658
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659
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the discretion to adopt the new table.146 The Unions filed an unfair labor
practice complaint with the MERC.147 The matter proceeded through
adjudication under an administrative law judge (ALJ), who issued a
recommended decision concluding that while actuarial assumptions are
mandatory subjects of bargaining under PERA, the underlying CBAs
contained provisions covering the pension benefits.148 When the County
incorporated the ordinance into the collective bargaining agreements, it
fulfilled its duty to bargain; while the meaning of actuarial equivalence
might be disputed, it was an issue subject to the grievance and arbitration
procedure contained in the CBAs.149
The MERC rejected the ALJs recommended decision, concluding
instead that the actuarial assumptions . . . were never memorialized in
the Retirement Ordinance or any of the collective bargaining agreements
referencing the Retirement Ordinance.150 The MERC also stated that the
longstanding reliance on the prior table constituted a tacit agreement that
the practice would continue (i.e., a past practice).151 According to the
MERC, the County had violated its duty to bargain and was required to
revert to the prior actuarial table.152 The court of appeals affirmed in a
split opinion, and the Michigan Supreme Court granted leave to
appeal.153
The supreme court began its analysis by discussing PERAs impact
on public sector labor relations in Michigan.154 Most notably, it examined
PERAs requirement that all parties are obliged to bargain in good faith
and that each party can fulfill this statutory duty by memorializing
resolution of a subject in a collective bargaining agreement.155 Thus,
when parties negotiat[e] for a provision in the collective bargaining
agreement that fixes the parties rights, mandatory bargaining is
foreclosed because the matter is now covered by the agreement.156
146. Id.
147. Id. at 73, 833 N.W.2d at 23031.
148. Id. at 74, 833 N.W.2d at 231.
149. Id.
150. Id. at 7475, 833 N.W.2d at 231.
151. Id. at 75.
152. Id.
153. Macomb County v. AFSCME Council 25, 491 Mich. 915, 834 N.W.2d 874
(2012).
154. Macomb County, 494 Mich. at 78, 833 N.W.2d at 233; see MICH. COMP. LAWS
ANN. 423.201423.217 (West 2014).
155. Macomb County, 494 Mich. at 7880, 833 N.W.2d at 23334 (citing Port Huron
Ed. Assn v. Port Huron Area Sch. Distr., 452 Mich. 309, 31718, 550 N.W.2d 228, 234
(1996)).
156. Id. at 79, 833 N.W.2d at 234 (citation omitted) (quoting Port Huron Ed. Assn,
452 Mich. at 318, 550 N.W.2d at 234).
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663
use of the female actuarial table did not create a past practice
independent of the collective bargaining agreements.178 Accordingly, the
court reversed and remanded to the MERC for dismissal.179
The dissent, written by Justice Bridget M. McCormack and
concurred in by Justice Michael F. Cavanagh, agreed that the calculation
of retirement benefits was a mandatory subject of collective bargaining,
that the parties collective bargaining agreements covered the calculation
of retirement benefits, and that the term actuarial equivalence was
unambiguous.180 The dissent stated that it would have even agreed with
the majority about the outcome of the case, absent one significant
issuewhether there was, in fact, an intentional and mutually agreed
upon modification of the contract (i.e., a past practice).181 The dissent
focused on the twenty-four-year use of the female actuarial table and
noted that this longstanding course of conduct and the persistent decision
to use a specific formula, including its memorialization into the
retirement ordinance, did meet the high standard of proof required to
show that the parties practice amended the contract term.182 Thus, the
dissent would have held that the charging parties have submit[ted]
proofs illustrating that the parties had a meeting of the minds with
respect to the new terms or conditionsintentionally choosing to reject
the negotiated contract and knowingly act in accordance with the past
practice.183
B. Michigan Employment Security Act
In Logan v. Manpower of Lansing, Inc.,184 the Michigan Court of
Appeals addressed when an individual seeking unemployment benefits
can be disqualified for voluntarily leaving her position without good
cause under Michigans Employment Security Act (MESA).185
Janice Logan began working for Manpower of Lansing, Inc.
(Manpower), a temporary-staffing agency, in April 2008, and was
assigned to work part-time as a receptionist at Pennfield Animal
178. Id. at 92, 833 N.W.2d at 241.
179. Id.
180. Id. at 9293, 833 N.W.2d at 241 (McCormack, J., dissenting).
181. Id. at 9495, 833 N.W.2d at 242.
182. Id.
183. Id. (alteration in original) (citation omitted) (quoting Detroit Police Officers
Assn v. City of Detroit, 452 Mich. 339, 345, 551 N.W.2d 349, 351 (1996)) (internal
quotation marks omitted).
184. Logan v. Manpower of Lansing, Inc., 304 Mich. App. 550, 847 N.W.2d 679
(2014).
185. Id. at 522, 847 N.W.2d at 680; see Michigan Employment Security Act (MESA),
MICH. COMP. LAWS ANN. 421.1421.75 (West 2014).
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665
under section 29(5), which provides that [i]f an individual leaves work
to accept permanent full-time work with another employer she is not
disqualified for benefits under section 29(1)(a).202 Thus, Logan sought
rehearing to fully develop the record regarding whether Pennfield had
offered full-time, permanent employment to her.203
On remand, the ALJ heard testimony from Pennfields owner that:
Logan worked part time for him for approximately three months; on
Logans new employee information sheet, Logan selected the box
indicating part-time work; and even after Logans medical restrictions
were lifted in January, she continued to work part-time.204
Unsurprisingly, the ALJ found that Logan quit her job with Manpower to
take a part-time position with Pennfield and thus was disqualified for
benefits.205 The ALJs decision was affirmed, and Logan appealed to the
circuit court.206
There, Logan argued that Manpower and Pennfield should be
considered joint employers because she had performed the same work for
each.207 If Manpower and Pennfield were joint employers, Logan never
left her prior employment and so would qualify for benefits.208 The
circuit court was not persuaded and affirmed Logans disqualification.209
The Michigan Court of Appeals granted leave, stating that the issue
was the effect of claimant stopping to work for Manpower and starting
to work for Pennfield in October 2008.210 Logan first argued that
because her work did not change when she started at Pennfield, she never
left work under section 29 of the MESA.211 The court summarily
addressed this argument, stating that while work is not defined in the
statute, it is easily understood as being synonymous with
employment.212 The legislative intent is clear when the phrase is
viewed in its entirety: Left work voluntarily without good cause
attributable to the employer or employing unit.213 In drafting the statute,
the legislature was referring to a particular employer, and not just any
202. Id. at 553, 556, 847 N.W.2d at 680, 682 (citing MICH. COMP. LAWS ANN.
421.29(5) (West 2014)).
203. Id. at 553, 847 N.W.2d at 680.
204. Id. at 55354, 847 N.W.2d at 681.
205. Id. at 554, 847 N.W.2d at 681.
206. Id.
207. Id.
208. Id.
209. Id.
210. Id. at 556, 847 N.W.2d at 682.
211. Id.
212. Id.
213. Id. (quoting MICH. COMP. LAWS ANN. 421.29(1)(a) (West 2014)).
666
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general employer.214 The court of appeals found the circuit court had
correctly applied the law and also was correct in noting that if an
individual voluntarily leaves work to accept part-time employment, she
cannot invoke section 29(5), which requires the individual to leave a
position only for permanent full-time work.215
The court of appeals also concluded that the circuit court had
properly applied the substantial evidence standard when reviewing the
agencys factual findings regarding whether Logan accepted part time
instead of full-time employment with Pennfield.216 The substantial
evidence test requires deference to an agency decision if there is
evidence that a reasonable person would accept as sufficient to support
the agencys conclusion.217 The circuit court had concluded that there
was evidence to support the conclusion that the claimant left her position
to assume part-time employment, including the owners testimony and
the fact that Logan checked the part-time box on her new employee form
at Pennfield.218
The court next rejected Logans argument that she was never
actually unemployed under the MESA and so should not be
disqualified for benefits.219 The court observed that section 29(1)(a) does
not require an individual to have been unemployed in order to be
disqualified from receiving benefits.220 Instead, it merely requires that the
person leave work voluntarily without good cause attributable to the
employer.221 Also found wanting was Logans contention that her
starting work at Pennfield should not be considered as voluntarily
leaving Manpower.222 Relying on Thomas v. Employment Security
Commission,223 which held that an employee voluntarily leaves his or her
job if the separation is the product of the employees hopes, wishes, and
intent,224 the Logan court found clear evidence that it was Logans hope,
wish, and intent to quit working for Manpower.225
214. Id.
215. Id.
216. Id.
217. Id. (citing Dowerk v. Oxford Charter Twp., 233 Mich. App. 62, 592 N.W.2d 724
(1998)).
218. Id. at 557, 847 N.W.2d at 683.
219. Id. at 558, 847 N.W.2d at 683 (citing MICH. COMP. LAWS ANN. 421.48(1) (West
2014)).
220. Id.
221. Id.
222. Id.
223. Thomas v. Empt Sec. Comm., 356 Mich. 665, 97 N.W. 2d 784 (1959).
224. Id. at 669, 97 N.W.2d at 786.
225. Logan, 304 Mich. App. at 558, 847 N.W.2d at 683.
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237.
238.
239.
240.
241.
242.
243.
244.
245.
246.
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argued that the prior president lacked the authority to bind the company
to the alleged promises for severance pay.247
The trial court concluded that the 2009 letters were clear and
unambiguous offers of severance pay but that summary disposition was
premature because discovery was necessary on the question of
Youngbloods actual authority to bind HP Pelzer to the severance pay
contracts.248
After discovery concluded, the parties all sought summary
disposition.249 In their motion, the Kleins argued that HP Pelzer had
failed to produce any evidence that Youngblood lacked actual authority
to bind the company to the severance pay contracts.250 In response, HP
Pelzer argued that Youngblood lacked actual authority because he was
obligated to follow the companys policies, which included a policy
stating that compensation benefits could be modified or revoked at any
time.251 In support of its motion, HP Pelzer contended that the plain
language of the 2009 letters did not allow for severance upon resignation
because the letters were intended to encourage continued employment
and not voluntary resignation.252 Additionally, HP Pelzer argued they
only intended to pay the severance benefit during the period of
restructuring.253 Further, if continuing to work after receiving the 2009
letters constituted acceptance of the severance agreement, then
continuing to work after receiving the 2011 letters constituted acceptance
of revocation of the offers.254 Lastly, HP Pelzer reiterated its argument
that Youngblood lacked actual authority to make an irrevocable promise
on behalf of HP Pelzer.255
The trial court concluded that HP Pelzer had not proffered evidence
to refute the Kleins assertion that Youngblood had actual authority to
bind HP Pelzer and again concluded that the 2009 letters were promises
to pay, entitling the Kleins to severance pay upon their resignations.256 In
addition, the trial court concluded that the fact that the Kleins continued
to work after the 2009 severance offer constituted acceptance, precluding
HP Pelzer from subsequently revoking the offer.257 Accordingly, the
247.
248.
249.
250.
251.
252.
253.
254.
255.
256.
257.
Id.
Id. at 73, 854 N.W.2d at 525.
Id.
Id.
Id. at 7374, 854 N.W.2d at 525.
Id.
Id. at 74, 854 N.W.2d at 525.
Id.
Id.
Id.
Id.
670
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Id.
Id. at 75, 854 N.W.2d at 525.
Cain v. Allen Elec. & Equip. Co., 346 Mich. 568, 78 N.W.2d 296 (1956).
Klein, 306 Mich. App. at 76-77, 854 N.W.2d at 526.
Id. (quoting Cain, 346 Mich. at 571, 78 N.W.2d at 297).
Id. at 77, 854 N.W.2d at 526 (quoting Cain, 346 Mich. at 570, 78 N.W.2d at 296).
Id. at 77, 854 N.W.2d at 527 (quoting Cain, 346 Mich. at 571, 78 N.W.2d at 296).
Id.
Id.
Id.
Id. at 7778, 854 N.W.2d at 527.
Id. at 78, 854 N.W.2d at 527.
Id.
Id.
Id.
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673
674
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paid for a period of time.6 One section even has four exceptions. The
section that bars an employee from suing an employer for damages from
an injury sustained at work7 does not apply when the employer
intentionally injured the employee,8 when the employer forced the
employee to masquerade as an independent contractor,9 when the
employer did not have workers compensation insurance or the approval
by the Director of the Workers Compensation Agency to self-insure,10
or when the injury was sustained during social or recreational activity.11
Exceptions to particular sections in the WDCA were the subject of
all of the legislation and important case law decided between June 30,
2013 and June 30, 2014.
II. HOUSE BILL 5489: A NEW EXCEPTION TO HEARING FROM THE
EMPLOYER WHEN AN EMPLOYEE SETTLES
Section 835 in the WDCA allows an employee to resolve a claim to
workers compensation with a lump sum settlement known as a
redemption of liability.12 That same section requires the consent of a
magistrate on the Workers Compensation Board of Magistrates.13
Section 836 allows a magistrate to consent and approve a settlement
of a claim only with the consent of the employer:
A redemption agreement shall only be approved by a workers
compensation magistrate if the workers compensation
magistrate finds all of the following:
....
(b) That the redemption agreement is voluntarily agreed to by all
parties. If an employer does not object in writing or in person to
6. Id. 418.833(1).
7. Id. 418.131(1).
8. Id.
9. Id. 418.171(4).
10. Id. 418.641(2).
11. Id. 418.301(3).
12. MICH. COMP. LAWS ANN. 418.835(1). Two decisions by the Michigan Court of
Appeals during this time were reversed afterward. Younkin v. Zimmer, 304 Mich. App.
719, 848 N.W.2d 488 (2014), revd, 497 Mich. 7, 857 N.W.2d 244 (2014); Auto-Owners
Ins. Co. v. All Star Lawn Specialists Plus, Inc., 303 Mich. App. 288, 845 N.W.2d 744
(2013), revd, 497 Mich. 13, 857 N.W.2d 520 (2014).
13. MICH. COMP. LAWS ANN. 418.835(1).
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January 1, 2020.20 Of course, the putative change may not actually occur
because of events that may intervene in the next five years.21
III. THOMAI V. MIBA HYDRAMECHANICA CORP.: THE INTENTIONAL TORT
EXCEPTION APPLIED
Section 131 of the WDCA bars an employee from suing an employer
for damages from an injury sustained at work by limiting the employee
to workers compensation: The right to the recovery of benefits as
provided in this act shall be the employees exclusive remedy against the
employer.22 The same section describes an exception for an intentional
tort by the employer:
The only exception to this exclusive remedy is an intentional
tort. An intentional tort shall exist only when an employee is
injured as a result of a deliberate act of the employer and the
employer specifically intended an injury. An employer shall be
deemed to have intended to injure if the employer had actual
knowledge that an injury was certain to occur and willfully
disregarded that knowledge. The issue of whether an act was an
intentional tort shall be a question of law for the court.23
The Michigan Supreme Court explained the meaning of this
exception in deciding the case of Travis v. Dries & Krump
Manufacturing Co.24 There, the court recognized that the exception
supplanted the description of intent by the Restatement25 that had been
the standard before enactment of the exception under Beauchamp v. Dow
Chemical Co.26 And then the court explained that intent to establish an
intentional tort under the statute required that the employer must have
had in mind a purpose to bring about given consequences27 that could
be demonstrated from evidence that the employer actually knew that an
injury to the employee was certain; probability was not a question.28
20. 2014 Mich. Pub. Acts 229237.
21. 2014 Mich. Pub. Acts 229.
22. MICH. COMP. LAWS ANN. 418.131(1).
23. Id.
24. 453 Mich. 149, 551 N.W.2d 132 (1996). The author was counsel for amicus
curiae Michigan Self-Insurers Association.
25. RESTATEMENT (SECOND) TORTS 8A, 15 (1965).
26. 427 Mich. 1, 398 N.W.2d 882 (1986). The author was counsel for amicus curiae
Michigan Self-Insurers Association.
27. Travis, 453 Mich. at 171, 551 N.W.2d at 142.
28. Id. at 178, 551 N.W.2d at 145.
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677
This ruling was reiterated by the court in deciding the case of Gray v.
Morley.29 The court only added that conduct on the part of [Kevin C.
Morley, the employer] was reckless or deliberately indifferent . . . sound
in gross negligence and are therefore insufficient to constitute an
intentional tort within the meaning of the WDCA.30 But instead of
returning the case to the trial court to assess the record as happened in
Travis, the court assessed the record for itself and dismissed the
lawsuit.31 The court decided that Morley had been reckless by driving a
pick-up truck erratically, knowing Gray was in back, but injury had not
been certain to occur because Morley had done this several times before
without any injury to anyone.32
The court considered the intentional tort exception for the first time
since Gray in Thomai v. MIBA Hydramechanica Corp.33 As in Gray, the
court assessed the record for itself and dismissed the lawsuit by Naum
Thomai because his employer, MIBA Hydramechanica, did not know
that an injury was certain to happen from running a machine.34 The court
stated, There is simply no evidence in the record to establish that
[MIBA Hydramechanica] willfully disregarded knowledge that an injury
was certain to occur to [Naum Thomai] from his operation of the
grooving machine.35
The remarkable feature is that the court did not explain or reiterate
the existing case lawTravis or Graybut simply took it as a given.
Neither Travis nor Gray was cited.36
The court did not need to explain or reiterate the case law. There was
no dispute that Thomai had slipped on some oil, caught a shirtsleeve on
some exposed parts of the machine that he was running, and injured
himself.37 This meant that there had been only a chance of injury because
people often go unscathed when slipping. Whether slipping on some oil,
water or a newly waxed floor, people may regain their balance or upon
falling are only winded or embarrassed. Not everyone is injured from
678
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679
680
[Vol. 60:673
he sustained at work.49 The statute was not the basis for this decision.
Instead, the court of appeals rejected stacking or contemporaneous
wage loss compensation because he had only one employer that had only
changed its name from Howmet Corporation to Cordant Technologies.50
The court stated, Nichols contends that he is entitled to stack full
wage-loss benefits from each employment . . . . Because Nichols bases
his argument on the faulty premise that he was employed by two
different employers, we reject it.51
The Michigan Supreme Court affirmed these rulings by the court of
appeals and remanded for the consideration of a question that the court of
appeals had thought was not preserved for review.52
V. LEWANDOWSKI V. OEM RESOURCING INC.: AN EXCEPTION TO THE
JURISDICTION OF THE APPELLATE COMMISSION RECOGNIZED
Section 847 of the WDCA requires that a magistrate on the Workers
Compensation Board of Magistrates hear and decide any question about
workers compensation that the parties could not resolve through
mediation.53 The decision by the magistrate is subject to direct review by
the Michigan Compensation Appellate Commission,54 with three
exceptions. MCL section 418.841(9) bars any review of a decision by a
magistrate about a claim to a benefit totaling less than $2,000.55 MCL
section 418.837(2) allows direct review of a decision by a magistrate
about the propriety of a lump sum settlement known as an agreement to
redeem liability56 to the Director of the Workers Compensation Agency
instead of the Appellate Commission.57 And MCL section 418.858(1)
allows direct review of a decision about a fee of a lawyer or doctor by
the Director, not the Appellate Commission.58
49. Id. at 67475, 840 N.W.2d at 398, vacated in part and appeal denied in part, 495
Mich. 988, 844 N.W.2d 722 (2014).
50. Id. at 674, 840 N.W.2d at 398.
51. Id.
52. Nichols v. Howmet Corp., 495 Mich. 988, 944 N.W.2d 722 (2014). The author
represented defendants-appellees Cordant Technologies and Michigan Property &
Casualty Association. The court of appeals fulfilled the mandate after June 30, 2014. For
the court of appeals decision on remand, see Nichols v. Howmet Corp., 306 Mich. App.
215, 855 N.W.2d 536 (2014).
53. MICH. COMP. LAWS ANN. 418.847(1)(3) (West 2014).
54. Id. 418.859a(1).
55. Id. 418.841(9).
56. Id. 418.835(1).
57. Id. 418.837(2).
58. Id. 418.858(1).
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681
59. No. 13-0003, 2014 WL 487052 (Mich. Workers Comp. App. Commn Jan. 31,
2014). The author represented OEM Resourcing and Manufacturing Technology Mutual
Insurance Company.
60. Id. at *7.
61. Id. at *5 (citation omitted).
62. Id. at *56 (emphasis added).
682
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63. See, e.g., Shattuck v. Aramark Campus, Inc., No. 10-0036, 2011 WL 944451
(Mich. Workers Comp. App. Commn Mar. 14, 2011); Burgard v. Halliday Sand &
Gravel, Inc., No. 07-0074, 2008 WL 649819 (Mich. Workers Comp. App. Commn Mar.
5, 2008); Musselman v. Intl Engg & Mfg., Inc., No. 04-0481, 2007 WL 2069813 (Mich.
Workers Comp. App. Commn July 10, 2007); Beattie v. Wells Aluminum Co., No. 040124, 2005 WL 1651725 (Mich. Workers Comp. App. Commn July 7, 2005).
64. MICH. COMP. LAWS ANN. 418.858(1) (West 2014).
65. Id.
66. Id. (emphasis added).
67. Id. 418.859(a).
68. Id.
2015]
683
Jackson v. Sedgwick Claims Mgmt. Serv., Inc., 731 F.3d 556, 561 (6th Cir.
Id. 418.385.
Jackson, 731 F.3d at 561.
18 U.S.C.A 1962(c) (West 2014).
Jackson, 731 F.3d at 561.
Id. at 56162.
Id. at 566.
Id. at 55963.
18 U.S.C.A. 1964(c).
Jackson, 731 F.3d at 56566.
Id. at 56869.
684
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685
judges may not use [RICO] to seize this power for themselves.
That of course was the whole point of Jackson.87
VII. CONCLUSION
The amendment to the WDCA and all of the important workers
compensation rulings by courts between June 30, 2013 and June 30,
2014 were about exceptions to the WDCA or some putative exception, as
in the case of Jackson v. Sedgwick Claims Management Services, Inc.
Each exception is specific and inelastic. There is no reason to anticipate
that any one of the exceptions will be enlarged, and each exception
remains important by describing a specific alternate and informing the
section of the WDCA that usually applies. It remains that the exception
proves the rule.
87. Id.
EVIDENCE
LOUIS F. MEIZLISH
I. A GENERAL INTRODUCTION AND RULES 10106: PRESERVATION
OF OBJECTIONS AND REVIEW OF EVIDENTIARY RULINGS ............. 689
A. Introduction ............................................................................... 689
B. Appeals and Error...................................................................... 690
1. Issue Preservation................................................................ 690
2. Standard of Review ............................................................. 692
II. RULES 20102: JUDICIAL NOTICE .................................................... 693
III. RULES 30102: PRESUMPTIONS ...................................................... 693
IV. RULES 40115: RELEVANCE, CHARACTER EVIDENCE, OTHER
ACTS OF CONDUCT, RULE 403 BALANCING, AND EVIDENCE OF
COMPROMISE OR SETTLEMENT ...................................................... 693
A. Relevance Generally .................................................................. 693
1. Relevance of a Defendants Concealed-Pistol License in
Felony-Firearm Trials....................................................... 694
2. Relevance of a Defendants Status as a Medical
Marijuana Patient in Criminal Drug-Delivery Cases....... 695
3. Relevance of Post-Petition Facts in Cases Involving
Termination of Parental Rights......................................... 697
B. Other Acts of Conduct................................................................ 700
1. Other Burglaries .................................................................. 702
2. Other Armed Robberies ....................................................... 703
3. Other Acts of Pimping.......................................................... 706
C. Rule 403 Balancing ................................................................... 710
D. Rape-Shield Provisions ............................................................. 711
E. Evidence of Compromise or Settlement ..................................... 713
F. Statements During Plea Negotiations ........................................ 716
V. RULES 50102: PRIVILEGES ............................................................. 720
VI. RULES 60115: WITNESSES ............................................................ 723
A. Impeachment .............................................................................. 723
B.A., 2004, University of Michigan; J.D., 2011, cum laude, Wayne State
University. Member, State Bar of Michigan, 2011present; Editor-in-Chief, Wayne Law
Review, 201011; Editor-in-Chief, The Michigan Daily, 200304. The views I express
herein are solely my own, and do not carry the endorsement of any other person or entity.
I welcome readers feedback via email to meizlish@umich.edu. I could not have
produced this work without the endless support and encouragement from my colleagues,
friends, and, most of all, my parents, Sheldon and Aida Meizlish; my uncle, Leonard
Meizlish; and my fiance, Dr. Erin Miller.
687
688
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EVIDENCE
689
690
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EVIDENCE
691
692
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2. Standard of Review
Assuming a party has preserved the issue, the appellate tribunalin
Michigan state courts or the Sixth Circuitreviews the trial courts
evidentiary rulings for an abuse of discretion.17 In Michigan, an abuse of
discretion in admitting or excluding evidence occurs when a decision
falls outside the range of principled outcomes.18 The Sixth Circuit has
similarly held that an abuse of discretion occurs when the reviewing
tribunal is left with the definite and firm conviction that the district
court committed a clear error of judgment in the conclusion it reached
upon a weighing of the relevant factors.19 During this Survey period, the
Sixth Circuit had occasion to reaffirm its case law that, in examining a
district courts application of the balancing principles of Rule 403, the
district courts decision is afforded great deference.20 Before reviewing
the ultimate evidentiary ruling, however, the appellate tribunal must
determine if the trial courts evidentiary ruling involved a preliminary
ruling on an issue of law, such as an interpretation of the rules of
evidence, statutory law, or constitutional law, in which case the appellate
tribunal will subject the preliminary legal ruling to de novo review.21
On the other hand, appellate courts will accord great deference to
factual findings by applying the clear error standard and will uphold
those findings unless left with a definite and firm conviction that a
mistake was made.22 For a roadmap that illustrates the interaction of
objections, preservation of issues, and appellate review of evidentiary
rulings, see the 2012 Survey article on evidence.23
17. People v. Danto, 294 Mich. App. 596, 59899, 822 N.W.2d 600, 602 (2011);
United States v. Sims, 708 F.3d 832, 834 (6th Cir. 2013) (citing United States v. Stout,
509 F.3d 796, 799 (6th Cir. 2007)).
18. Danto, 294 Mich. App. at 599, 822 N.W.2d at 602 (citing People v. Blackston,
481 Mich. 451, 460, 751 N.W.2d 408, 412 (2008)); see People v. Babcock, 469 Mich.
247, 269, 666 N.W.2d 231, 243 (2003).
19. United States v. Qin, 688 F.3d 257, 261 (6th Cir. 2012) (quoting United States v.
Jenkins, 345 F.3d 928, 936 (6th Cir. 2003)). Be aware, however, of the Sixth Circuits
intra-circuit split as to the proper standard for reviewing determinations as to the
admissibility of other acts pursuant to Rule 404(b). See Louis F. Meizlish, Evidence, 58
WAYNE L. REV. 739, 745 n.17 (2013).
20. United States v. Stafford, 721 F.3d 380, 395 (6th Cir. 2013) (quoting United
States v. Bell, 516 F.3d 432, 445 (6th Cir. 2008)) (internal quotation marks omitted).
21. People v. Benton, 294 Mich. App. 191, 195, 817 N.W.2d 599, 603 (2011) (citing
People v. Dobek, 274 Mich. App. 58, 93, 732 N.W.2d 546, 570 (2007)).
22. People v. Brown, 279 Mich. App. 116, 127, 755 N.W.2d 664, 675 (2008) (citing
People v. Taylor, 253 Mich. App. 399, 403, 655 N.W.2d 291, 295 (2002)).
23. Louis F. Meizlish, Evidence, 58 WAYNE L. REV. 739, 74648 (2012).
2015]
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694
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in some degree advances the inquiry.30 Similarly, the Sixth Circuit has
held that [t]he standard for relevancy is extremely liberal under the
Federal Rules of Evidence.31
In ruling on relevancy questions, both the state and the Sixth Circuit
have adopted a de facto totality-of-the-circumstances approach. In
Michigan, [t]he relationship of the elements of the charge, the theories
of admissibility, and the defenses asserted governs what is relevant and
material.32 Likewise, the Sixth Circuit held that [t]he purpose of an
item of evidence cannot be determined solely by reference to its content.
That is because [r]elevancy is not an inherent characteristic of any item
of evidence but exists only as a relation between an item of evidence and
a matter properly provable in the case.33
1. Relevance of a Defendants Concealed-Pistol License in FelonyFirearm Trials
A Wayne County jury found Willie D. Powell guilty of the crime of
possession of a firearm during the commission of a felony34 but acquitted
him of delivery/manufacture of marijuana and maintaining a drug
house.35 At trial, the defense had sought to introduce evidence that the
defendant had obtained a concealed pistol license (CPL), but the trial
court excluded the evidence.36 Following the conviction, the trial court
granted Powells motion for a new trial on the ground that it erred in
excluding the CPL evidence.37 The prosecution filed an application to the
Michigan Court of Appeals, which granted leave to appeal.38
Observing that [e]vidence is admissible if it is helpful in throwing
light on any material point, the appellate court agreed that the trial
court erred in excluding the CPL evidence and saw no error in its
30. Id. (quoting KENNETH BROUN ET AL., MCCORMICK ON EVIDENCE 185, at 736
(6th ed. 2007)).
31. Dortch v. Fowler, 588 F.3d 396, 400 (6th Cir. 2009) (quoting United States v.
Whittington, 455 F.3d 736, 738 (6th Cir. 2006)).
32. Powell, 303 Mich. App. at 277, 842 N.W.2d at 543 (citation omitted) (quoting
People v. VanderVliet, 444 Mich. 52, 75, 508 N.W.2d 114, 126 (1993)) (internal
quotation marks omitted).
33. United States v. Parkes, 668 F.3d 295, 304 (6th Cir. 2012) (quoting FED. R. EVID.
401 advisory committees note).
34. Powell, 303 Mich. App. at 27273, 842 N.W.2d at 541.
35. People v. Powell, Case No. 11-3453-FH, Wayne County Circuit Court, available
at https://cmspublic.3rdcc.org/CaseDetail.aspx?CaseID=1231073.
36. Powell, 303 Mich. App. at 276, 842 N.W.2d at 543.
37. Id. at 27273, 276, 842 N.W.2d at 541, 543.
38. Id. at 27273, 842 N.W.2d at 541.
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EVIDENCE
695
decision to grant a new trial.39 The appellate panel barely touched on the
facts of the case, but explained its ruling as follows:
The CPL evidence was relevant and admissible. Defendants
argument was that he was innocently present in a flat where
someone else had marijuana. A relevant fact was whether
defendant was using a handgun in a legal manner. The
prosecution specifically argued that defendants possession of
the handgun was evidence that he was involved in selling the
marijuana. This argument implied that defendant was not using
the handgun in a legal manner. Defendant argued that he was
using the weapon in a legal manner. Defendants CPL evidence
lent credibility to his argument that he legally possessed the
handgun. Therefore, defendants testimony that he had a valid
CPL was within the range of litigated matters in controversy.40
The panelJudges David H. Sawyer, Peter D. OConnell, and
Kirsten Frank Kelly, in a per curiam opinion41also saw no error in the
trial courts determination that its earlier decision excluding the CPL
evidence denied the defendant his constitutional right to present a
defense.42 Because the trial court did not abuse its discretion in granting a
new trial, the appeals court affirmed its decision.43
2. Relevance of a Defendants Status as a Medical Marijuana Patient
in Criminal Drug-Delivery Cases
A medical-marijuana defense is irrelevant and inadmissible where,
prior to the trial, the court has already concluded that the defendants
conduct fell outside the protections of the Michigan Medical Marihuana
Act.44 Such was the holding of the Michigan Court of Appeals in People
v. Vansickle in September 2013.45
39. Id. at 278, 842 N.W.2d at 543 (quoting People v. Aldrich, 246 Mich. App. 101,
114, 631 N.W.2d 67, 75 (2001)).
40. Id. (quoting People v. Brooks, 453 Mich. 511, 518, 557 N.W.2d 106, 109 (1996)).
41. Id. at 271, 842 N.W.2d at 540.
42. Id. at 27879, 842 N.W.2d at 543 (citing People v. Anstey, 476 Mich. 436, 460,
719 N.W.2d 579 (2006)).
43. Id. at 280, 842 N.W.2d at 544.
44. People v. Vansickle, 303 Mich. App. 111, 11720, 842 N.W.2d 289, 29496
(2013).
45. Id.
696
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EVIDENCE
697
59. In re Dearmon, 303 Mich. App. 684, 693, 847 N.W.2d 514, 519 (2014); see also
MICH. COMP. LAWS ANN. 712A.2(b).
60. Dearmon, 303 Mich. App. at 694, 847 N.W.2d at 519.
61. MICH. CT. R. 3.965(B)(11); In re Hatcher, 443 Mich. 426, 43638, 505 N.W.2d
834, 83940 (1993).
62. MICH. COMP. LAWS ANN. 712A.2(b).
63. Dearmon, 303 Mich. App. at 68788, 847 N.W.2d at 516.
64. Id. at 696, 847 N.W.2d at 521 (emphasis added).
65. Id. at 698, 847 N.W.2d at 522 (citing MICH. CT. R. 3.922(A)(1)(a)).
66. Id. at 688, 847 N.W.2d at 516.
698
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another child, told the worker that she would ship her children off if
CPS and the courts get involved.67
During her home visit, Adamec noticed the respondents two black
eyes and swollen face.68 Harverson initially refused to answer questions
but then said she would press charges for the assault and had already
obtained a personal-protection order (PPO) against her boyfriend,
Desmond Long.69
Adamec learned that police had recently arrested Long for assault on
Harverson and that a condition of his pretrial release in the criminal case
was that he have no contact with the respondent.70 The CPS worker was
unable to locate the PPO the respondent claimed to have obtained.71
Adamec conducted a forensic interview of Longs child, ML.72 ML
recounted that Long and respondent had fought in respondents
apartment and that both combatants had wielded knives. During the
altercation, ML and respondents children attempted to hide behind a
mattress. ML recalled that respondent had been bleeding.73 MLs
statements contradicted the respondents denial that her children had not
been present.74
After DHS filed its petition to terminate her rights to ML, Harverson
exercised her right to a trial, whereby a jury would determine whether
there were statutory grounds for the family court to assume jurisdiction
over ML.75 At trial, the petitioners theory of the case was that the
respondents conduct exposed her children to domestic violence, which
places [the children] at a substantial risk of harm in her care and makes
their home environment unfit.76 Harversons attorney argued that the
respondent was a victim of domestic violence, that she wanted to
prosecute her abuser, and that she was doing everything pro-actively to
prevent this from happening again.77
A panel of the Michigan Court of Appeals summarized the
petitioners evidence at trial:
67.
68.
69.
70.
71.
72.
73.
74.
75.
76.
77.
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699
78.
79.
80.
81.
82.
83.
84.
85.
86.
700
[Vol. 60:687
The court concluded that the evidence was relevant to contradict the
respondents defense:
Petitioner structured its jurisdictional claim on the argument that
respondent was unable to extricate herself from her relationship
with Long and that their inherently violent, abusive relationship
endangered respondents children. Respondent countered that
Long had entered her home without permission on July 15,
denied that her children had witnessed this altercation, and
insisted that she had done everything in her power to distance
herself from Long. Obviously, respondents credibility was at
issue given petitioners contrary evidence. The jailhouse tapes
bore directly on respondents credibility. They tended to
discredit her disavowal of voluntary contact with Long after the
first assault.87
The panel further observed that the court had instructed the jury that,
when listening to the recordings, it should not consider the statements of
the prisoner (presumably Long), as they were hearsay.88 The
respondents statements, however, bore directly on her credibility, [and]
were relevant regardless of the date she uttered them.89 Accordingly, the
panel affirmed the adjudication (and subsequent termination) for this and
other reasons.90
B. Other Acts of Conduct
The general prohibition on propensity evidence, Rule 404(b), forbids
[e]vidence of other crimes, wrongs, or acts . . . to prove the character of
a person in order to show action in conformity therewith.91 However,
the rules do not bar such evidence for a non-propensity, or non-character,
purpose, such as proof of motive, opportunity, intent, preparation,
scheme, plan, or system in doing an act, knowledge, identity, or absence
of mistake or accident when the same is material.92 (Also, various
statutory and court rules of evidence permit propensity evidence in
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701
702
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EVIDENCE
703
106.
107.
108.
109.
110.
111.
112.
113.
114.
704
[Vol. 60:687
trial that when the defendant pointed the gun at her, she heard it make a
click-click noise.115
Similarly, during the third of the three incidents, the defendant
pulled out a heavy, black, metal pistol, and pointed it at [delivery driver
Ryan] Johnsons face. Johnson heard the man rack the slide on the
firearm, placing a bullet into the chamber.116 Johnson positively
identified Mack as the gun-carrying robber.117
At trial, the district court permitted the government to introduce a
transcript of the defendants guilty plea to a similarly charged offense in
Georgia state court about 17 months before the Tennessee carjackings.118
Although the defendant in that case, Rodney Bernard Mack, Jr.,
was initially charged with a serious robbery offense, he entered a
guilty plea to a reduced misdemeanor charge of disorderly
conduct. According to the state prosecutors factual basis
statement presented to support the guilty plea, the robbery victim
was approached by the defendant and his accomplice on a public
sidewalk. The victim took special note of the shorter of the two
men because he had short twists in his hair and he was dressed in
blue jean shorts and a white tank top. The taller man, who wore a
black jacket, told the victim he had a Glock in his pocket and
demanded the victims property. The victim immediately turned
over his food and his cell phone.119
The government contended that its purpose in offering the other-acts
evidence was to establish the defendants identity as one of the culprits in
the three Tennessee robbery/carjackings.120 On appeal, Mack argued the
district court erred in admitting evidence of the Georgia robbery because
the evidence was unfairly prejudicial to him.121
The appellate panel began by considering the first prong of a Rule
404(b) analysis in the Sixth Circuitwhether there was sufficient
evidence that Mack had committed the Georgia robbery.122 Here, the
Sixth Circuit concluded that the district court plainly erred because the
government had not confirmed on the record that the Rodney Bernard
Mack, Jr. who pled guilty in Georgia state court was the same Rodney B.
115.
116.
117.
118.
119.
120.
121.
122.
Id.
Id. at 600.
Id.
Id. at 601.
Id. at 60102.
Id. at 602.
Id.
Id. at 601.
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EVIDENCE
705
Mack, Jr., who was then on trial.123 Second, the panel held, the Georgia
robbery did not constitute proper identity evidence because the
Georgia incident was not sufficiently similar to the charged crimes to
establish the defendants pattern, modus operandi, or signature.124 A
unanimous panel of Judge Jane Branstetter Stranch, writing for herself
and Judges Raymond M. Kethledge and Karen Nelson Moore,125
differentiated the incidents:
The three Tennessee robberies were committed in a similar
pattern or by use of a similar modus operandi. But the Georgia
charge arose from a typical street robbery in which the victim
fortuitously turned over a cell phone and food to the robbers. The
Georgia crime did not involve calling in food orders, luring
delivery drivers to vacant houses, stealing cell phones that were
later used to set up future robberies, or carjacking. Because the
Georgia robbery lacked the pattern or modus operandi of the
Tennessee robberies, the jury essentially heard forbidden
propensity evidence because the jurors were required to pile
inference upon inference to draw the conclusion that the
defendant was involved in all of the incidents.126
Accordingly, the panel concluded, the Georgia evidence failed all
three prongs of the Rule 404(b) analysis1) insufficient evidence, 2)
insufficient probative value as to a non-character purpose, and 3)
prejudicial effect outbalancing the probative value.127 The panel held that
the district court abused its discretion in admitting evidence of the
Georgia robbery.128 Nevertheless, the court affirmed the conviction on
harmless-error grounds in light of the overwhelming evidence of Macks
guilt (namely, two of the three victims positive identification of him as
the culprit, his possession of the first and third Tennessee victims cell
phones, and the clothes police found in his apartment that were similar to
the clothes one of the robbers was wearing during the incidents).129
123. Id. at 602. The Sixth Circuits opinion is silent as to whether Mack raised this
issue in the district court. It is possible that his counsel knew the government had the
evidence that the two Rodney B. Macks were the same individuals, and elected not to
dispute identity so as to further draw the jurys attention to the defendants prior act.
124. Id. (citing United States v. Clay, 667 F.3d 689, 693 (6th Cir. 2012)).
125. Id. at 598.
126. Id. at 60203 (emphasis added) (citing Clay, 667 F.3d at 699).
127. Id. at 603.
128. Id.
129. Id.
706
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130.
131.
132.
133.
134.
135.
136.
137.
138.
139.
140.
141.
142.
143.
United States v. Willoughby, 742 F.3d 229, 232 (6th Cir. 2014).
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id. at 23233.
Id. at 233.
Id.
Id.
Id.
Id.
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EVIDENCE
707
144.
145.
146.
147.
148.
149.
150.
151.
Id.
Id. at 231, 233.
Id. at 236.
Id.
Id. at 237.
Id. (emphasis added) (citing 18 U.S.C.A. 1591(a) (West 2014)).
Id.
Id.
708
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152. Id.
153. Id.
154. Id. (citing United States v. Merriweather, 78 F.3d 1070, 107678 (6th Cir. 1996)).
155. Id. at 23738.
156. Id.
157. Id. at 238 (quoting United States v. Johnson, 27 F.3d 1186, 1193 (6th Cir. 1994))
(internal quotation marks omitted).
158. Id.
159. Id. (quoting United States v. Jenkins, 593 F.3d 480, 48586 (6th Cir. 2010))
(internal quotation marks omitted).
160. Id.
161. Id.
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EVIDENCE
709
162. Id.
163. Id.
164. Id. (citing United States v. Mack, 729 F.3d 594, 603 (6th Cir. 2013)).
710
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baby oil, a condom, and wipesall of which, the jury was later
told, were seized during a search of Willoughbys home.165
Accordingly, the unanimous panel, in an opinion by Judge Raymond
M. Kethledge for himself and Judge Jeffrey S. Sutton and U.S. District
Judge Robert M. Dow,166 affirmed the defendants conviction and
sentence, for this and other reasons.167
C. Rule 403 Balancing168
Rule 403 provides that [a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.169 In interpreting this rule, the Michigan Supreme
Court has explained that [a]ll evidence offered by the parties is
prejudicial to some extent, but the fear of prejudice does not generally
render the evidence inadmissible. It is only when the probative value is
substantially outweighed by the danger of unfair prejudice that evidence
is excluded.170 The rule serves to prevent a courts admission of
evidence with little probative value [that] will be given too much weight
by the jury.171 This unfair prejudice refers to the tendency of the
proposed evidence to adversely affect the objecting partys position by
injecting considerations extraneous to the merits of the lawsuit, e.g., the
jurys bias, sympathy, anger, or shock.172
Because Rule 403 balancing in most cases ties particularly closely to
a courts application of other rules (such as the provision of Rule
404(b)173 allowing evidence of other acts of conduct) and is very specific
to the facts, it is difficult to devote a lengthy section solely to this rule.
Below I list the Survey period cases in this Article that involved a more165. Id. at 235.
166. Judge Dow, of the Northern District of Illinois, sat by designation on the Sixth
Circuit panel. Id. at 231.
167. Id. at 243.
168. This portion of the Articlean introductory explanation about Rule 403
balancingborrows heavily, if not entirely, from last years Survey article on evidence.
See Meizlish, supra note 3, at 1106.
169. MICH. R. EVID. 403; see also FED. R. EVID. 403.
170. People v. Mills, 450 Mich. 61, 75, 537 N.W.2d 909, 917 (1995).
171. People v. McGhee, 268 Mich. App. 600, 614, 709 N.W.2d 595, 607 (2005) (citing
Mills, 450 Mich. at 75, 537 N.W.2d at 917).
172. People v. Fisher, 449 Mich. 441, 452, 537 N.W.2d 577, 582 (1995) (quoting
People v. Goree, 132 Mich. App. 693, 70203, 349 N.W.2d 220, 225 (1984)).
173. MICH. R. EVID. 404(b).
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711
Related issues
Cross-reference
Brumley v. Albert E.
Brumley & Sons, Inc.
United States v.
Stafford
People v. Roscoe
Hearsay exception:
ancient documents
Expert opinion: gunshot
residue
Other acts of conduct:
burglaries
Other acts of conduct:
pimping
VII.C.1.c
United States
Willoughby
v.
Part VII.C
Part IV.B.1
Part IV.B.3
D. Rape-Shield Provisions
The Michigan rape-shield statute, section 520j of the penal code,
provides that evidence of specific instances of a rape victims past sexual
conduct, along with reputation and opinion evidence of his or her past
conduct, is inadmissible in criminal sexual conduct cases.174 Section
520j, the Michigan Court of Appeals explained in a 1978 case,
represents an explicit legislative decision to eliminate trial
practices under former law which had effectually frustrated
societys vital interests in the prosecution of sexual crimes. In
the past, countless victims, already scarred by the emotional (and
often physical) trauma of rape, refused to report the crime or
testify for fear that the trial proceedings would veer from an
impartial examination of the accuseds conduct on the date in
question and instead take on aspects of an inquisition in which
complainant would be required to acknowledge and justify her
sexual past.175
174. MICH. COMP. LAWS ANN. 750.520j(1) (West 2015). The federal courts have
promulgated a similar, but non-statutory, rape-shield provision. See FED. R. EVID. 412.
This introduction to the rape-shield rule borrows heavily, if not entirely, from the
previous years Survey article on evidence. See Meizlish, supra note 3, at 1102.
175. People v. Khan, 80 Mich. App. 605, 613, 264 N.W.2d 360, 364 (1978).
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Similarly, the Sixth Circuit has explained that the purpose of Rule
412 is to encourage[] victims of sexual abuse to report their abusers by
protecting the victims privacy.176
The Michigan statute, however, permits the following evidence as
exceptions to the rape shield: (a) Evidence of the victims past sexual
conduct with the actor [and] (b) Evidence of specific instances of sexual
activity showing the source or origin of semen, pregnancy, or disease.177
To admit such evidence under either of these exceptions in the rapeshield statute, the court must find that the following proposed evidence
is material to a fact at issue in the case and that its inflammatory or
prejudicial nature does not outweigh its probative value.178
The corresponding provision in the Federal Rules of Evidence, Rule
412, is similar but differs in some respects.179 Both the Michigan statute
and the federal rule contain an exception for evidence showing the
source or origin of semen, pregnancy, or disease.180 On the other hand,
while the Michigan statute has an exception for [e]vidence of the
victims past sexual conduct with the actor,181 the narrower exception in
the federal rule permits evidence of specific instances of a victims
sexual behavior with respect to the person accused of the sexual
misconduct, if offered by the defendant to prove consent or if offered by
the prosecutor.182 Second, unlike the Michigan statute, the federal rule
does not require the trial judge to subject evidence falling within one of
the two exceptions to a probative-versus-inflammatory-effect balancing
before admitting such evidence.183 Third, in civil cases only, the federal
rule, unlike the Michigan statute, permits evidence of a victims sexual
behavior or disposition if its probative value substantially outweighs the
danger of harm to any victim and of unfair prejudice to any party. The
court may admit evidence of a victims reputation only if the victim has
placed it in controversy.184 Finally, the procedural time limits and
mechanisms differ slightly between the federal and state provisions.185
In United States v. Willoughby, a case I previously referenced in Part
IV.B.3 of this Article, the Sixth Circuit held that Rule 412 does not
operate to preclude cross-examination of a rape victim concerning her
176.
177.
178.
179.
180.
181.
182.
183.
184.
185.
United States v. Ogden, 685 F.3d 600, 606 (6th Cir. 2012).
MICH. COMP. LAWS ANN. 750.520j(1).
Id.
FED. R. EVID. 412.
MICH. COMP. LAWS ANN. 750.520j(1)(b); see also FED. R. EVID. 412(b)(1)(A).
MICH. COMP. LAWS ANN. 750.520j(1)(a).
FED. R. EVID. 412(b)(1)(B) (emphasis added).
See MICH. COMP. LAWS ANN. 750.520j(1); FED. R. EVID. 412(b)(1).
FED. R. EVID. 412(b)(2).
Compare MICH. COMP. LAWS ANN. 750.520j(2), with FED. R. EVID. 412(c).
2015]
EVIDENCE
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prior false allegations of sexual abuse.186 One of the errors the defendant
alleged on appeal was the trial courts decision to preclude the defense
from cross-examining SW about a previous allegation of sexual abuse
she made and later recanted against a counselor at a foster home at which
she had lived.187 The defense argued that the recantation was probative of
SWs credibility and not within the purview of the rape-shield provision
in Rule 412.188
A unanimous panel of the Sixth Circuit, in an opinion by Judge
Raymond M. Kethledge for himself and Judge Jeffrey S. Sutton and U.S.
District Judge Robert M. Dow,189 concluded that the district court erred
in excluding the evidence of SWs recantation.190 The recantation, the
panel explained, was not offered to prove that [SW] engaged in other
sexual behaviorbecause the testimonys whole predicate was that
there was no other sexual behavior to begin with. For the same reason,
the testimony was not offered to prove [SW]s sexual
predisposition.191 The panel further rejected the governments
contention that exploring the recantation would have provoked a minitrial as to the truth of the prior recantation.192 Rather, the appellate judges
observed that Rule 608(b) precludes extrinsic evidence of prior acts of
dishonestyin other words, the defense would have been unable to
introduce testimony or evidence of the false recantation if SW denied
lying about the former incident.193 (See the discussion on Rule 608(b) in
part VI.A.2 of this Article.) Nevertheless, the panel affirmed the
defendants conviction, on harmless-error grounds.194
E. Evidence of Compromise or Settlement
In Rule 408, the federal and state rules both disallow a partys use of
an adverse partys offer of settlement, or statements the adverse party
made during settlement negotiations, to prove the validity or invalidity of
a claim or to prove the amount for which the offeror is liable.195 In plain
186. United States v. Willoughby, 742 F.3d 229, 23435 (6th Cir. 2014).
187. Id. at 234.
188. Id.
189. Id. at 231.
190. Id. at 234.
191. Id. (quoting FED. R. EVID. 412(a)).
192. Id. at 235.
193. Id. (citing FED. R. EVID. 608(b)).
194. Id. at 243.
195. FED. R. EVID. 408(a); MICH. R. EVID. 408. The federal and state rules diverge
slightly in that the federal rules add that such evidence of compromise or statements in
settlement negotiations is also inadmissible to impeach by a prior inconsistent statement
or a contradiction. FED. R. EVID. 408(a). Note that this introductory material to Rule 408
714
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English, this means party P cannot show that party D is liable for X
amount because D offered to settle the case, nor may it use statements D
made during settlement talks to show that the amount of the damage is X.
Similarly, a party may not introduce evidence that the opposing party
settled with a non-party.196 For a discussion of the policy underlining the
rule, see the 2012 Survey article on evidence.197
Frank Cona, the petitioner in Cona v. Avondale School District,
began working as a teacher at the Avondale School District in Oakland
County in 1997, obtaining tenure during the 200102 academic year.198
In early 2010, as part of a plea bargain, Cona pled guilty to a criminal
charge of impaired driving and received a sentence of twelve months of
probation.199 The petitioner failed to comply with probation by testing for
alcohol and marijuana, which led to two successive probation
violations.200 The second violation hearing occurred on a school day, and
Cona told the school district
that his absence from work was due to illness. Petitioner was
offered a choice between jail time and an additional year of
probation. Petitioner chose jail because he believed that his
probation officer would recommend a 15-day sentence and that
he would be permitted to serve the sentence on weekends,
thereby allowing him to continue teaching during the week.
However, petitioner was mistaken. After pleading guilty to the
charge of violating his probation, petitioner was sentenced to 30
days in jail. The district court ordered that his sentence begin
immediately.201
While in jail, Cona instructed his ex-wife to log in to his account on
the districts electronic school-absence system and list personal days as
the reason for his long absence.202 The system rejected that entry,
prompting future unsuccessful attempts to enter family illness and
leave of absence.203 Eventually, at the petitioners direction, his exborrows heavily from the 2012 Survey article on evidence. See Meizlish, supra note 23,
at 804.
196. Windemuller Elec. Co. v. Blodgett Meml Med. Ctr., 130 Mich. App. 17, 23, 343
N.W.2d 223, 225 (1983).
197. Meizlish, supra note 23, at 80405.
198. Cona v. Avondale School Dist., 303 Mich. App. 123, 125126, 842 N.W.2d 277,
279 (2013).
199. Id. at 126, 842 N.W.2d at 279.
200. Id.
201. Id. at 12627, 842 N.W.2d at 280 (footnote omitted).
202. Id. at 127, 842 N.W.2d at 280.
203. Id.
2015]
EVIDENCE
715
wife met with the superintendent and explained where Cona truly was.204
At some point during his incarceration, word spread among the students
that one of their teachers was in jail.205
Shortly after his release in early May 2011, the petitioner met with
the superintendent and asked to return to his position.206 Instead, the
district placed him on leave for the balance of the school year.207
On June 22, 2011, [Superintendent George] Heitsch sent
petitioner a letter stating that [p]ending the successful resolution
of [his] suspension, petitioner would be placed as a social
studies teacher in the middle school for the 2011-2012 school
year. The parties then entered into settlement negotiations, but
the negotiations eventually broke down and no resolution was
ever reached.208
The school district subsequently discharged the petitioner.209 Cona
appealed to the Michigan Tenure Commission, which held a hearing
before a referee and then affirmed the discharge.210 The petitioner then
filed an application with the Michigan Court of Appeals, which granted
leave to appeal.211
On appeal, the petitioner argued that the tenure commission erred in
its final determination and that in arriving at that determination, the
commissions referee erred in excluding evidence of the settlement
negotiations.212 He argued that the evidence would have established the
districts earlier intent to reassign him, and that it would have impeached
the superintendents credibility.213
The appellate panel acknowledged that Rule 408 generally operates
to exclude evidence of compromise to establish a partys liability but
does not require exclusion when the evidence is offered for another
purpose, such as proving bias or prejudice of a witness.214 Here,
however, the panel concluded that Heitschs efforts to negotiate a
204. Id. at 12728, 842 N.W.2d at 280.
205. Id. at 128, 842 N.W.2d at 281.
206. Id.
207. Id.
208. Id. at 128, 842 N.W.2d at 28081.
209. Id. at 130, 842 N.W.2d at 281.
210. Id. at 13036, 842 N.W.2d at 281285.
211. Id. at 136, 842 N.W.2d at 285 (citing Cona v. Avondale Sch. Dist., No. 310893,
2013 Mich. App. LEXIS 1815, at *1 (Mar. 19, 2013)).
212. Id. at 141, 842 N.W.2d at 287.
213. Id.
214. Id. (quoting MICH. R. EVID. 408).
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[Vol. 60:687
resolution with Cona did not establish bias on his part.215 Furthermore,
assuming arguendo that the rules permit a partys use of a witnesss prior
statements in compromise negotiations to impeach the witness, the
record . . . contain[s] no allegations of fact that call into question the
testimony of Dr. Heitsch or [Avondale High School Principal Frederick]
Cromie.216 Accordingly, Judge Kathleen Jansen, writing for a
unanimous panel of herself and Judges Donald S. Owens and Joel P.
Hoekstra,217 found no grounds to disturb the commissions ruling and
affirmed Conas discharge.218
F. Statements During Plea Negotiations
Rule 410(4) of the Michigan Rules of Evidence provides that an
adverse party in a civil or criminal proceeding may not use a defendants
prior statements made in the course of plea discussions with an attorney
for the prosecuting authority which do not result in a plea of guilty or
which result in a plea of guilty later withdrawn.219 Subsequent to the
Survey period, the Michigan Supreme Court agreed with the court of
appeals Survey-period decision in People v. Smart that Rule 410(4)
does not require that a statement made during plea discussions be made
2015]
EVIDENCE
717
718
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2015]
EVIDENCE
719
720
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2015]
EVIDENCE
721
722
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2015]
EVIDENCE
723
724
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EVIDENCE
725
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about her prior acts of dishonesty (and hope that she acknowledges that
the prior acts occurred), Rule 608(b) provides that he may not introduce
extrinsic evidence of the witness committing the prior acts of
dishonesty.283 It is a widely accepted rule of evidence law that generally
precludes the admission of evidence of specific instances of a witness
conduct to prove the witness character for untruthfulness.284
In Nevada v. Jackson, the U.S. Supreme Court recently explained
that [t]he admission of extrinsic evidence of specific instances of a
witness conduct to impeach the witness credibility may confuse the
jury, unfairly embarrass the victim, surprise the prosecution, and unduly
prolong the trial.285 Rule 608(b)s purpose is to focus the fact-finder on
the most important facts and conserve judicial resources by avoiding
mini-trials on collateral issues.286 (For a brief discussion of the Sixth
Circuits application of Rule 608(b) to a rape accusers prior recantation
of a sexual-abuse allegation, see Part IV.B.3 of this Article.)
In Jackson, a Survey-period case, the high court, in a unanimous per
curiam opinion, held that Rule 608(b), when it operates to preclude a
criminal defendant from introducing extrinsic evidence of a witnesss
prior acts of dishonesty, does not violate the Confrontation Clause of the
Sixth Amendment.287 [T]he Confrontation Clause is generally satisfied
when the defense is given a full and fair opportunity to . . . expose
[testimonial] infirmities through cross-examination.288 The U.S.
Supreme Court summarized the Jackson facts as follows:
Respondent Calvin Jackson had a tumultuous decade-long
romantic relationship with Annette Heathmon. In 1998, after
several previous attempts to end the relationship, Heathmon
relocated to a new apartment in North Las Vegas without telling
respondent where she was moving. Respondent learned of
Heathmons whereabouts, and on the night of October 21, 1998,
he visited her apartment. What happened next was the focus of
respondents trial.
Heathmon told police and later testified that respondent forced
his way into her apartment and threatened to kill her with a
screwdriver if she did not have sex with him. After raping
283. MICH. R. EVID. 608(b); FED. R. EVID. 608(b).
284. Nevada v. Jackson, 133 S. Ct. 1990, 1993 (2013).
285. Id. at 199394.
286. Id. at 1993 (quoting Abbott v. State, 138 P.3d 462, 476 (Nev. 2006)).
287. Id. at 1994.
288. Id. (quoting Delaware v. Fensterer, 474 U.S. 15, 22 (1985) (per curiam)) (internal
quotation marks omitted).
2015]
EVIDENCE
727
728
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EVIDENCE
729
decision in Raffel v. United States,307 where the high court explained the
potential relevance of earlier silence in the face of a criminal charge:
[I]f the cross-examination had revealed that the real reason for
the defendants failure to contradict the governments testimony
on the first trial was a lack of faith in the truth or probability of
his own story, his answers would have a bearing on his
credibility and on the truth of his own testimony in chief.
It is elementary that a witness who upon direct examination
denies making statements relevant to the issue, may be crossexamined with respect to conduct on his part inconsistent with
this denial. The value of such testimony, as is always the case
with cross-examination, must depend upon the nature of the
answers elicited; and their weight is for the jury. But we cannot
say that such questions are improper cross-examination, although
the trial judge might appropriately instruct the jury that the
failure of the defendant to take the stand in his own behalf is not
in itself to be taken as an admission of the truth of the testimony
which he did not deny.308
Courts must consider the underlying purposes of the Fifth
Amendment privilege against self-incrimination and the due process
clauses when considering the admissibility of silence at trial:
The safeguards against self-incrimination are for the benefit of
those who do not wish to become witnesses in their own behalf
and not for those who do. There is a sound policy in requiring
the accused who offers himself as a witness to do so without
reservation, as does any other witness. We can discern nothing in
the policy of the law against self-incrimination which would
require the extension of immunity to any trial or to any tribunal
other than that in which the defendant preserves it by refusing to
testify.309
During Rayfield Clarys first trial in Wayne County for assault with
intent to murder and felony firearm, a witness testified that the defendant
730
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shot him.310 Clary did not testify, and the presiding judge declared a
mistrial after the jury was unable to reach a unanimous verdict.311 During
the second trial, Clary did testify in his own defense,312 prompting the
following questions from the prosecution: You didnt tell that jury [the
previous jury] the same story youre telling this jury, did you, sir? and
[I]f that was the truth and that was so important, why didnt you tell the
last jury?313
During closing statements, the prosecutor remarked to the jury,
Well, ladies and gentleman, if its the truth, if its the truth and youre
on trial, why wouldnt you tell the first jury?314 The jury convicted the
defendant of both charges at the second trials conclusion.315 On appeal,
however, a unanimous panel of the Michigan Court of Appeals reversed
the conviction, concluding that the prosecutions references to Clarys
silence during his first trial was improper impeachment,316 but the
Michigan Supreme Court granted the Wayne County prosecutors
application for leave to appeal.317 The high court reversed the
intermediate appellate tribunals judgment as to impeaching the
defendant with his silence at a prior trial.318 Justice Stephen J. Markman,
writing for a four-person majority of himself, Chief Justice Robert P.
Young Jr., and Justices Mary Beth Kelly and Brian K. Zahra,319 cited a
law review article that distinguished between requiring the courts
suppression of post-arrest/post-Miranda silence generally for
impeachment purposes, and allowing impeachment by the use of postarrest/post-Miranda silence at an earlier trial for impeachment purposes:
[T]he government inducement to remain silent, which may be
caused by the shock of arrest, the fearful nature of custody, the
Miranda warnings, or any combination thereof, will gradually
lose its influence on the defendant as pressure is diminished and
310.
311.
312.
313.
314.
315.
316.
2012).
317.
318.
319.
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731
732
[Vol. 60:687
We need not close our eyes to the fact that every person accused
of crime is under some pressure to testify, lest the jury, despite
carefully framed instructions, draw an unfavorable inference
from his silence. When he does take the stand, he is under the
same pressure: to testify fully, rather than avail himself of a
partial immunity. And the accused at the second trial may well
doubt whether the advantage lies with partial silence or with
complete silence. Even if, on his first trial, he were to weigh the
consequences of his failure to testify then, in the light of what
might occur on a second trial, it would require delicate balances
to enable him to say that the rule of partial immunity would
make his burden less onerous than the rule that he may remain
silent, or at his option, testify fully, explaining his previous
silence. We are unable to see that the rule that if he testifies, he
must testify fully, adds in any substantial manner to the
inescapable embarrassment which the accused must experience
in determining whether he shall testify or not.328
Accordingly, the Michigan Supreme Court held that the prosecutors
cross-examination and comment on the defendants silence at the earlier
trial did not chill his Fifth Amendment rights.329
For a table that explains the existing law on when the prosecution
can introduce or comment on a defendants silence, see Part VIII.B of
this Article.
B. Rule 614: Courts Discretion to Question Witnesses
Pursuant to Rule 614, both the Michigan and federal rules permit
judges to examine witnesses and even to call witnesses to the stand.330
However, the trial court must exercise caution and restraint to ensure
that its questions are not intimidating, argumentative, prejudicial, unfair,
or partial.331 The Michigan Court of Appeals has held that [t]he test is
whether the judges questions and comments may well have
unjustifiably aroused suspicion in the mind of the jury as to a witness
328. Id. at 27475, 833 N.W.2d at 317 (quoting Raffel v. United States, 271 U.S. 494,
499 (1926)).
329. Id. at 27476, 833 N.W.2d at 31718.
330. MICH. R. EVID. 614; FED. R. EVID. 614.
331. People v. Conyers, 194 Mich. App. 395, 405, 487 N.W.2d 787, 791 (1992) (citing
People v. Sterling, 154 Mich. App. 223, 228, 397 N.W.2d 182 (1986)).
2015]
EVIDENCE
733
332. Id. at 405, 487 N.W.2d at 791 (citations omitted) (quoting Sterling, 154 Mich.
App. at 228).
333. People v. McDonald, 303 Mich. App. 424, 437, 844 N.W.2d 168, 176 (2013).
334. Id. (quoting Conyers, 194 Mich. App. at 404, 487 N.W.2d at 791).
335. Id. at 43940, 844 N.W.2d at 17778.
336. See MICH. R. EVID. 602; FED. R. EVID. 602. Some of the introductory material
appearing in this section borrows from the previous years Survey article on evidence. See
Meizlish, supra note 3, at 1123, 113031.
337. MICH. R. EVID. 701; FED. R. EVID. 701.
338. MICH. R. EVID. 702; FED. R. EVID. 702.
339. See MICH. R. EVID. 701.
340. FED. R. EVID. 701.
734
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EVIDENCE
735
the known or potential rate of error,350 and finally, whether the relevant
scientific community generally accepts the theory or technique.351
Michigan has followed the U.S. Supreme Courts lead in adopting the
Daubert standards.352
Importantly, courts have held that the threshold inquiry [is] whether
the proposed expert testimony will assist the trier of fact to understand
the evidence or to determine a fact in issue, and that requirement is
not satisfied if the proffered testimony is not relevant or does not
involve a matter that is beyond the common understanding of the average
juror.353
3. Witnesses Testifying to Both Expert Opinion and Facts
There is no general prohibition on fact witnesses also testifying as to
expert opinion, assuming they are qualified to give such opinion.354
However, there must be either a cautionary jury instruction regarding
the witnesss dual roles or a clear demarcation between the witnesss fact
testimony and expert-opinion testimony.355 Failure to do either
constitutes plain error.356
Absent such demarcation or instruction, a jury might evaluate the
strength of the witnesss opinion in the same manner as it evaluates the
factual testimony he provides, or consider that his testimony as to facts
bolsters his expert opinion.357
In United States v. Willoughby, a case whose facts I discussed in Part
IV.B.3, a police detective first described at trial the items he and his
colleagues seized from the defendants residence pursuant to a search
warrant, the contents of Willoughbys phone records, and his interview
with SW.358 He then testified about the the methods that pimps use to
control their victimssome of which, [Agent James] Hardie said,
736
[Vol. 60:687
2015]
EVIDENCE
737
was in the evidence but tell them what inferences to draw from
it. That is not the point of lay opinion evidence.366
Interestingly, in a case with which most readers will be at least
somewhat familiar, former Detroit Mayor Kwame M. Kilpatrick is
asking the Sixth Circuit to reverse his convictions for public corruption
in light of law enforcement opinion testimony. In fact, Kilpatrick argued
that agents, via improper opinion testimony, spoon fe[]d the jury the
prosecution theory of the case.367
In Michigan, courts are also trending in a direction that discourages
officers lay opinion interpreting key pieces of evidence. Opinion
testimony, the Michigan Court of Appeals has held, cannot invade the
province of the jury,368 for example, by express[ing] an opinion on the
defendants guilt or innocence of the charged offense.369
In Freeman, FBI personnel had initiated a wiretap on the cellular
telephone of one Roy West during a drug investigation.370 The wiretaps
revealed that West, Marcus Freemans co-defendant, looked to exact
revenge upon Leonard Day, who had stolen over $350,000 worth of
jewelry, cash, and other property from West.371 West targeted and
threatened Days girlfriend, Kanisha Crawford, and her family in an
attempt to learn Days location.372 For his part, Freeman had offered
money to Days family in a ruse to lure Day from hiding.373 The Sixth
Circuit panel observed:
Freeman began to close in on Day. In one call with West,
Freeman commented, This shit should be any day now though
fam for real. So Im on it for sure cause I need that. On
December 17, 2005, Freeman called West asking for a cross
street for a Kilbourne Street address. West did not understand
Freemans question and asked for clarification. Freeman
366. Grinage, 390 F.3d at 750.
367. Robert Snell, Court Agrees to Hear Kilpatrick, Ferguson Appeals, DETROIT NEWS
(Nov. 28, 2014, 6:05 PM), http://www.detroitnews.com/story/news/local/waynecounty/2014/11/28/judges-schedule-kilpatrick-corruption-appeal/19633261/.
368. People v. Fomby, 300 Mich. App. 46, 5253, 831 N.W.2d 887, 891 (2013). See
Meizlish, supra note 3, at 112330, for a discussion in the preceding years Survey article
on evidence.
369. Fomby, 300 Mich. App. at 53, 831 N.W.2d at 888 (quoting People v. Bragdon,
142 Mich. App. 197, 199, 369 N.W.2d 208, 209 (1985)) (internal quotation marks
omitted).
370. United States v. Freeman, 730 F.3d 590, 592 (6th Cir. 2013).
371. Id.
372. Id. at 593.
373. Id.
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responded, Dude just called it in, baby, sayin, shit, shit that the
truck be in the driveway at night . . . . All the belongings be right
in the drawer. Special Agent Peter Lucas, the FBI agent in
charge of the investigation, believed that the truck was a
reference to Days truck and that Freeman had located Day.374
Three days after Freemans call to West regarding the Kilbourne
address, someone (whom the government later concluded was Freeman)
shot Day as he exited a home on Kilbourne.375 During that day, phone
logs revealed that Freeman had been making many phone calls that
routed through the cellular tower nearest the house where Day was
killed.376 Five minutes after Freemans last phone call, neighbors began
telephoning 911 to report a shooting on Kilbourne, and three minutes
after the first 911 call, the wiretap revealed the following conversation
between Freeman and West:
WEST: Whats good?
FREEMAN: Everything good, man. Except for, you know . . .
you know what Im talkin about . . . just that one little thing. We
aint get the bonus, dog. But, you know what Im sayin, the
situation is over with.
WEST: You bullshittin.
FREEMAN: Fam, its over, we get rich baby, you know what
Im talkin about, but man, we sorry about that other bonus,
baby . . . .377
An FBI agent explained to the jury that, We get rich, Ohio
(mentioned in a part of the conversation between West and Freeman not
excerpted above) meant that Freeman expected a substantial bounty for
murdering Day, and the situation that Freeman characterized as over
regard[ed] Leonard Day and his having stolen jewelry from Roy West,
Roy West having put a hit on Leonard Day and Leonard Day ultimately
being killed.378
374.
375.
376.
377.
378.
Id.
Id.
Id. at 593.
Id.
Id. at 59394 (internal quotation marks omitted).
2015]
EVIDENCE
739
740
[Vol. 60:687
2015]
EVIDENCE
741
392.
393.
394.
395.
396.
397.
398.
399.
Id. at 600.
FED. R. EVID. 702.
Freeman, 730 F.3d at 600 (citing FED. R. EVID. 702).
Id.
721 F.3d 380, 39394 (6th Cir. 2013).
Id. at 395 (emphasis added).
Id. at 387.
Id.
742
[Vol. 60:687
emerged.400 The man was wearing the same clothing as the shooter he
had seen shortly before, and [a]s Figula attempted to follow [Akeem]
Stafford in his car, Stafford looked back and made visual contact with
Figula by looking right at him.401 Stafford then ran out of the
McDonalds lot and in the direction of a nearby bank.402 The officer
drove in the banks direction and briefly spoke with the passengers of the
vehicle who believed someone had been shooting at them.403
Figula searched the area surrounding the bank and found Stafford
lying face down, wedged between the back of the building and a large
green exterior power unit.404 Backup officers assisted Figula in
detaining the defendant, who was resistant.405
The Sixth Circuit panel then described the officers actions in
locating a weapon they attributed to Stafford:
After removing Stafford from between the wall and the power
unit, the officers noted that Stafford was not carrying a firearm.
Figula organized a search for the weapon, retracing Staffords
movements backwards from behind First Merit Bank to the
Tremont Street alley near Uncle Vics nightclub. After the initial
walkthrough yielded no results, Figula continued down the alley
back towards Kerstetter Way and Uncle Vics nightclub. Figula
found two spent .45-caliber shell casings on the ground near the
entrance of the alley from Kerstetter Way. On the arrival of the
evidence technicians, a third shell casing was recovered and the
search for the missing firearm resumed. The firearm, a .45caliber semiautomatic handgun, was eventually recovered from
under a staircase in the Tremont Street alley behind Moss
Steakhouse. Figula noted that the guns magazine was partially
ejected and a live round was visible in its barrel. A total of six
live rounds of ammunition were recovered from the gun. Figula
also noted that the gun was scuffed, indicating the gun may have
been thrown and struck the cinder-block wall adjacent to where
the gun was found.406
Subsequent police ballistic tests confirmed that the gun Elryia police
discovered during their search was the same gun that fired the shell
400.
401.
402.
403.
404.
405.
406.
Id.
Id.
Id.
Id. at 387.
Id.
Id.
Id. at 38788.
2015]
EVIDENCE
743
casings Figula located in the alley.407 Other tests confirmed that it was
the same gun that had fired a bullet that had broken the window of a
bystanders vehicle during the time of the shooting.408
After his arrest, Elyria police swabbed the defendants hands for
gunshot residue, and [s]ubsequent laboratory testing determined the
presence of the elements of gunshot residue on Staffords left hand.409 A
federal jury sitting in Cleveland found the defendant guilty of being a
felon in possession of a firearm and ammunition.410
On appeal, Stafford argued that expert testimony by government
witness Robert Lewis as to the discovery of gunshot residue was
insufficiently reliable for the purpose of a Rule 702/Daubert analysis (he
did not argue lack of foundation for the other Rule 702 requirements).411
Unfortunately, the Sixth Circuits opinion is unclear as to precisely
what Lewiss opinions and conclusions were. From the context, I surmise
that Lewis testified that the presence of five residue particles on
Staffords hand was consistent with him having recently discharged a
firearm.412
The Sixth Circuit panelU.S. District Judge Jon P. McCalla, writing
for himself and U.S. Circuit Judges Danny J. Boggs and Helene N.
White413dispensed with Staffords argument that Lewiss testimony
was unreliable, observing that [t]o determine the testimonys reliability,
the court does not determine whether [the opinion] is correct, but rather
[determines] whether it rests upon a reliable foundation.414 It concurred
with the district courts conclusion that the defendants objection to
Lewiss testimony went to the weight of his conclusions, and not their
admissibility, approvingly quoting the district judges statement to
Staffords counsel during trial:
I am allowing the government to put [the experts testimony] in.
But given that your own expert is going to say it is possible that
he has got those two traces either because he was right near a
shooter, [was] a shooter of a gun[,] or that he came into contact
744
[Vol. 60:687
415. Id.
416. Id. (internal quotation marks omitted) (quoting Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 596 (1993)).
417. Id. (internal quotation marks omitted).
418. Id. (internal quotation marks omitted).
419. Id.
420. Id. In any event, general consensus in the field is no longer a requirement of
expert testimony. See Daubert, 509 U.S. at 59596.
421. Stafford, 721 F.3d at 395.
2015]
EVIDENCE
745
422.
423.
424.
425.
426.
427.
428.
Id. at 39495.
Id.
Id. at 395.
Id. at 394 (quoting United States v. Ingrao, 844 F.2d 314, 315 (6th Cir. 1988)).
Id. at 403.
MICH. COMP. LAWS ANN. 600.2169 (West 2015).
Id.
746
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2015]
EVIDENCE
747
had not been inappropriate despite the fact that the surgery failed
and plaintiff suffered a serious infection.435
At the conclusion of trial, an Ingham County jury returned a verdict
of no cause of action for the plaintiff.436 On appeal, the plaintiff
contended that the trial court should not have qualified the defendants
experts, because they lacked familiarity with the Chrisman-Snook
procedure.437
In commencing its analysis, a unanimous panel of the appellate court
observed that, while [a]n expert who lacks knowledge in the field at
issue cannot assist the trier of fact[,]438 mere [g]aps or weaknesses in
the witness expertise are a fit subject for cross-examination, and go to
the weight of his testimony, not its admissibility.439
In a per curiam opinion, the panel of William C. Whitbeck, Kurtis T.
Wilder and Amy Ronayne Krause440 observed:
Clearly, none of defendants experts were as familiar with the
Chrisman-Snook procedure as was defendant. However, all of
defendants experts performed ankle reconstructions regularly
and were experts in doing so. Significantly, though not
performing it, all of them were familiar with the ChrismanSnook procedure. All of them had, in addition, either authored at
least one article or textbook or lectured on ankle reconstruction
and had discussed the Chrisman-Snook procedure in the process.
Ankle reconstructive surgeries of any sort were clearly within
the general ambit of defendants experts fields of expertise.
There was no evidence that the state of the art has changed
significantly since any of the experts learned or last performed
the Chrisman-Snook procedure, in contrast to the situation in
Swanek v Hutzel Hosp., 115 Mich. App. 254, 258; 320 N.W.2d
234 (1982). Admission of expert testimony simply does not
depend on an experts being exactly as knowledgeable as a
defendant in a medical malpractice action. The trial court did not
abuse its discretion by finding that defendants experts were, at a
435. Id. at 760, 846 N.W.2d at 7172.
436. Id. at 75859, 846 N.W.2d at 7071.
437. Id. at 761, 846 N.W.2d at 72.
438. Id. at 762, 846 N.W.2d at 73 (internal quotation marks omitted) (quoting Gilbert
v. DiamlerChrysler Corp., 470 Mich. 749, 789, 685 N.W.2d 391, 413 (2004)).
439. Id. (emphasis added) (internal quotations marks omitted) (quoting Wischmeyer v.
Schanz, 449 Mich. 469, 480, 536 N.W.2d 760 (1995); People v. Gambrell, 429 Mich.
401, 408, 415 N.W.2d 202, 205 (1987)).
440. Id. at 766, 846 N.W.2d at 74.
748
[Vol. 60:687
2015]
EVIDENCE
749
750
[Vol. 60:687
456. People v. Fomby, 300 Mich. App. 46, 4851, 831 N.W.2d 887, 88891 (2013).
457. Id. at 53, 831 N.W.2d at 891 (quoting People v. Bragdon, 142 Mich. App. 199,
369 N.W.2d 209 (1985)) (internal quotation marks omitted).
458. People v. Musser, 494 Mich. 337, 349, 835 N.W.2d 319, 327 (2013) (citing
People v. Buckey, 424 Mich. 1, 17, 378 N.W.2d 432, 439 (1985)).
459. FED. R. EVID. 801(d)(2). The corresponding Michigan rule is substantially similar.
See MICH. R. EVID. 801(d)(2).
460. See infra notes 46164 and accompanying text.
461. People v. Eggleston, 148 Mich. App. 494, 502, 384 N.W.2d 811, 814 (1986)
(citing People v. Lee, 391 Mich. 618, 642, 218 N.W.2d 655, 666 (1974)); see also Gover
v. Perry, 698 F.3d 295, 306 (6th Cir. 2012) (recognizing effect-on-the-listener statements
as non-hearsay).
462. Eggleston, 148 Mich. App. at 502, 384 N.W.2d at 814.
2015]
EVIDENCE
751
752
[Vol. 60:687
2015]
EVIDENCE
753
754
[Vol. 60:687
2015]
EVIDENCE
755
756
[Vol. 60:687
The defense argued that the court should have redacted the interview
to exclude most of the detectives statements as they vouched for the
victims credibility.485 The prosecution countered that it was not offering
the detectives statements for a hearsay purpose (to prove the assertions
thereinthat the victim was probably telling the truth), but to establish
the context of the defendants incriminating response.486 The defense
responded that the detectives statements were not relevant to
contextualizing the defendants responses.487
The court observed that in many child molestation cases, witness
credibility is often the critical factor in the fact-finders determination,
and a jury will often [be] looking to hang its hat on the testimony of
witnesses it views as impartial.488 Hence, the court was concerned with
vouching statements used by detectives.489 Applying the principles
appearing above, the court concluded that most of the detectives
statements, save for the last statement by Heffron, were not necessary to
contextualize the defendants response.490 The court remarked that
Heffrons second set of statements should have appeared as follows:
DETECTIVE HEFFRON: You know theres a big difference
when we interview 4, 5, 6 year olds and when they get up around
10, 11, 12, 13. Theres a big difference. Four, five, six year old
kids, theyre easy to manipulate by parents, aunts, uncles theyre
easy to manipulate. Theyre terrible actors. Theyre terrible.
When kids start getting a little bit older theyre better actors.
Theyretheyre older, theyre seeing more. Shes 12. The big
issue here is if she wanted to get you in troubleshes smart
enough, and shes only and shes 12if, for whatever reason,
she wanted to get you in trouble she wouldshe would
[DEFENDANT]: That she would say that I fucked her?491
The trial court should have redacted Heffrons final exchange
directed at the defendant to read as follows:
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EVIDENCE
757
758
[Vol. 60:687
[DEFENDANT]: No.
DETECTIVE HEFFRON: Help us out here.
[DEFENDANT]: You asked a lot of different questions right
there. I dont knowII dont know what motivated me. I
think I explained it, I was just trying to give her a peck. I dont
know where this touching of the breast is coming from.492
Justice Cavanagh singled out various statements that were
inadmissible, such as the following statement by Kolakowski: Kids
have a hard time lying about this stuff because they dont even want to
talk about it, let alone they dont even want to talk about it to a mere
fucking stranger.493 Even if that and similar statements were relevant,
Justice Cavanagh remarked, the danger of unfair prejudice they created
substantially outweighed whatever probative value they had.494 In
conjunction with the jury hearing Kolakowskis testimony that a child of
the victims age knew the difference between the truth and a lie, and that
he had conducted hundreds of forensic interviews with similarly
situated children, Kolakowskis recorded out-of-court statements to the
defendant commenting on the victims credibility would heavily
influence a jurys determination as to her credibility, enhancing the
prejudicial effect of his vouching statements.495
The judges limiting instructions were ineffective to focus the jury
only on the recordings proper purpose, as the jury viewed the recording
with the unqualified instruction in mind that the recording was evidence
only to later be informed that all of the recordings contents could not be
considered as such.496
Accordingly, the trial court abused its discretion in admitting the
unredacted statements.497 Because the evidence against the defendant
was not overwhelming (the high court noted the absence of physical
evidence), and because the jurys determination of guilt hinged on
credibility determinations,498 the seven justices vacated the defendants
conviction and remanded the matter to Kent County for a new trial.499
492.
493.
494.
495.
496.
497.
498.
499.
2015]
EVIDENCE
759
760
[Vol. 60:687
Three days after the second robbery, a person the third clerk
identified as the defendant entered the same gas station and remarked,
you know the deal. Give me the money. Hurry up, you have two
seconds.509 Henry did not appear to be carrying a gun, but the clerk
noticed a pair of scissors up his sleeve as he exited the gas station.510
Then, in early December, the victim of the first robbery observed the
defendant return to the same station and laughingly said, you know
what the f____[sic] deal is. [Christopher] Selover testified that as he
handed money to the man, the man reached into his waistline as if he was
going to pull out a gun.511 That same day, a robber visited a
convenience store, walked behind the counter, held a long knife and
demanded clerks open the cash register, and then ran off with the cash,
promising to return.512
The detective in charge of the investigation testified before the jury
that a confidential informant came forward with the defendants
name.513 The defense objected on hearsay grounds, and the prosecution
withdrew the question.514 The trial court did not provide a curative
instruction.515
[Detective Steven] McClean testified that after he formed an
opinion regarding who was responsible for the first two L & L
robberies, he prepared photographic lineups to present to the
victims. The trial court allowed the testimony over defense
counsels hearsay objection on the ground that it was admissible
to show how McClean proceeded with his investigation. During
closing and rebuttal arguments, the prosecutor stated that there
was significant identification evidence beyond that which the
informant provided. Otherwise, the prosecutor did not refer to
the informant.516
On appeal, the defendant argued that the detectives testimony
violated his rights under the Confrontation Clause.517 Considering the
question, a panel of the Michigan Court of Appeals observed that not
509. Id. at *4 (internal quotation marks omitted).
510. Id. at *45.
511. Id. at *5.
512. Id. at *6.
513. Henry, 305 Mich. App. at 151, 854 N.W.2d at 131 (internal quotation marks
omitted).
514. Id.
515. Id.
516. Id. at 152, 854 N.W.2d at 13132.
517. Id. at 151, 854 N.W.2d at 132; see infra Part VIII.F.
2015]
EVIDENCE
761
only did the detective disclose the informants accusation that defendant
was the responsible robber, but that he came to believe that defendant
was responsible for the November 16 and November 17 robberies on the
basis of what the informant said . . . .518 Accordingly, the prosecution
had offered the informant-declarants statements for their truththat the
defendant was the robber because the declarant-informant reported that
he was the robber.519 The court concluded that the statement was
inadmissible as hearsay in violation of the Confrontation Clause but did
not reverse the defendants conviction, because of the strength of the
remaining evidence and because neither the prosecution nor defense
emphasized the informants information in their closing statements.520
The hearsay/confrontation error, in the view of Judge Stephen L.
Borrello, writing for himself and Judge Michael J. Kelly,521 did not affect
the trials outcome.522 Judge Mark L. Boonstra agreed with the analysis
of this question but wrote separately to diverge from the majority on a
separate issue.523
In the Sixth Circuit, police may testify to the contents of an out-ofcourt 911 tip to establish the reasons for their actions (e.g., in responding
to a scene of a crime or stopping a motorist), but only if the basis for the
officers conduct is at issue at trial.524 The court has acknowledged that
background information that explains how law enforcement came to be
involved might not be hearsay because it is offered not for the truth of
the matter asserted, but rather to show why the officers acted as they
did.525
However, in the Tennessee federal case of United States v. Nelson, a
unanimous appellate panel rejected the governments contention that it
introduced the tips contents into evidence for a non-hearsay purpose (to
provide background for the polices activity), concluding that the
prosecution used the tip to persuade the jury that the defendant was the
person the tipster reported as carrying a gun (a hearsay purpose).526
In the early morning of June 15, 2009, Murfreesboro, Tennessee
police officers responded to a 911 tip of a black man wearing a blue
shirt, with a poofy afro, riding a bicycle, [who] was armed with a
518. Henry, 305 Mich. App. at 154, 854 N.W.2d at 13233.
519. Id. at 154, 854 N.W.2d at 133.
520. Id. at 15455, 854 N.W.2d at 133.
521. Id. at 163, 854 N.W.2d at 137.
522. Id. at 155, 16263, 854 N.W.2d at 133, 137.
523. Id. at 163, 854 N.W.2d at 137 (Boonstra, J., concurring).
524. See United States v. Nelson, 725 F.3d 615, 619 (6th Cir. 2013).
525. Id. at 620 (citing United States v. Caver, 470 F.3d 220, 239 (6th Cir. 2006);
United States v. Aguwa, 123 F.3d 418, 421 (6th Cir. 1997)).
526. Id. at 62021 (emphasis added).
762
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2015]
EVIDENCE
763
764
[Vol. 60:687
2015]
EVIDENCE
765
warning.548 In other words, since the Bigge courts ruling, the Supreme
Court has required defendants to expressly invoke the Fifth
Amendments protection against self-incrimination unless they are either
(a) at trial, or (b) in pre-Mirandized police interrogation.
Bigge, in contrast, appeared to carry a presumption that the
defendant invokes the privilege regardless of the situation, whereas
subsequent cases limited the presumption to trial and custodial
settings.549 Furthermore, in Bigge, the silence following accusation did
not occur in the context of either pre- or post-arrest police
interrogation.550
To put it simply, the U.S. Supreme Court has held that outside of the
trial/custodial-interrogation exceptions, the defendants failure at any
time to assert the constitutional privilege leaves him in no position to
complain now that he was compelled to give testimony against
himself.551
In Salinas v. Texas, a Survey-period case, the U.S. Supreme Court
had occasion to consider whether Miranda and its progeny, the Fifth
Amendment privilege against self-incrimination, and/or the Due Process
clauses of the Fifth and Fourteenth amendments prohibit criminal
prosecutors from introducing and commenting on defendants silence
during non-custodial police interviews.552 The Supreme Court, in a fiveto-four split, held that absent the defendants affirmative invocation of
the privilege, prosecutors may introduce and comment on the defendants
silence (unless, at the time of his silence, the defendant was either on
trial or subject to custodial interrogation).553
Genovevo Salinas was a suspect in two 1992 Houston murders.554
Shortly after the incident:
Police visited [Salinas] at his home, where they saw a dark blue car
in the driveway. He agreed to hand over his shotgun for ballistics
testing and to accompany police to the station for questioning.
Petitioners interview with the police lasted approximately one
hour. All agree that the interview was noncustodial, and the
548. Id. at 2180 (citing Miranda v. Arizona, 384 U.S. 436, 46768, 468 n.37 (1966);
Minnesota v. Murphy, 465 U.S. 420, 42930 (1984)).
549. See Bigge, 288 Mich. at 417, 285 N.W. at 5.
550. Id. at 419, 285 N.W. at 5.
551. Salinas, 133 S. Ct. at 2181, 2181 n.2 (quoting United States v. Kordel, 397 U.S.
1, 10 n.18 (1970)).
552. See id.
553. See id. at 2174.
554. Id. at 2185.
766
[Vol. 60:687
parties litigated this case on the assumption that he was not read
Miranda warnings. For most of the interview, petitioner
answered the officers questions. But when asked whether his
shotgun would match the shells recovered at the scene of the
murder, petitioner declined to answer. Instead, petitioner
[l]ooked down at the floor, shuffled his feet, bit his bottom lip,
cl[e]nched his hands in his lap, [and] began to tighten up. After
a few moments of silence, the officer asked additional questions,
which petitioner answered.555
At trial in 2007 (the defendant had absconded shortly after the 1993
interview), the prosecution introduced the defendants silence in the face
of questioning against him, over his counsels objection.556 Texass
appellate courts affirmed the conviction, and the U.S. Supreme Court
granted Salinass petition for a writ of certiorari.557
In a plurality opinion by Justice Samuel A. Alito Jr. for himself,
Chief Justice John G. Roberts Jr., and Justice Anthony M. Kennedy,558
the high court did not address the question of whether a trial courts
admission of non-custodial silence during police interviews violates the
Due Process or Self-Incrimination clauses; rather, it concluded that a
defendant forfeits the privilege by failing to assert it during a noncustodial interview.559 The high court held that Salinass interview was
one of the circumstances in which an accused must expressly invoke his
privilege against self-incrimination to obtain the benefit of the
privilege.560 The accuseds burden of invoking his privilege ensures that
the Government is put on notice when a witness intends to rely on the
privilege so that it may either argue that the testimony sought could not
be self-incriminating . . . or cure any potential self-incrimination through
a grant of immunity . . . .561
The traditional requirement, Justice Alito observed, prevents
individuals from gaming the system by employ[ing] the privilege to
avoid giving testimony that he simply would prefer not to give . . . .562
555. Id. at 2178 (emphasis added) (citation omitted).
556. Id. at 217879.
557. See id. (citing Salinas v. State, 368 S.W.3d 550 (Tex. App. Houston 14th Dist.
2011)); see also Salinas v. State, 369 S.W.3d 176 (Tex. Crim. App. 2012); Salinas v.
Texas, 133 S. Ct. 928 (2013)).
558. Id. at 2177.
559. Id. at 217980.
560. Id. at 2180.
561. Id. at 2179 (citing Hoffman v. United States, 341 U.S. 479, 486 (1951); Kastigar
v. United States, 406 U.S. 441, 448 (1972)).
562. Id. (quoting Roberts v. United States, 445 U.S. 552, 560 n.7 (1980)).
2015]
EVIDENCE
767
Before arrest?
After arrest?
563. Id. at 2179, 2182 n.3 (citing Doyle v. Ohio, 426 U.S. 610, 61718 (1976)).
564. People v. Clary, 494 Mich. 260, 272, 833 N.W.2d 308, 315 (2013).
565. See Salinas, 133 S. Ct. at 2180.
566. Id. at 2180 (citing Miranda v. Arizona, 384 U.S. 436, 46768, 468 n.37 (1966);
Minnesota v. Murphy, 465 U.S. 420, 42930 (1984)).
768
[Vol. 60:687
567. People v. Sutton, 436 Mich. 575, 598, 464 N.W.2d 276, 286 (1990).
568. Salinas, 133 S. Ct. at 2180 (citing Leary v. United States, 395 U.S. 6, 2829
(1969); Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 7779 (1965)).
569. See id. (citing Garrity v. New Jersey, 385 U.S. 493, 497 (1967); Lefkowitz v.
Cunningham, 431 U.S. 801, 80204 (1977); Lefkowitz v. Turley, 414 U.S. 70, 8485
(1973)).
570. See Illinois v. Perkins, 496 U.S. 292, 298 (1990) (citing Hoffa v. United States,
385 U.S. 293 (1966)).
571. Salinas, 133 S. Ct. at 2181.
572. Id. at 2182.
573. Id. at 2184.
2015]
EVIDENCE
769
the U.S. Supreme Court affirmed the Texas courts that upheld Salinass
conviction.574
The reader should note that while Justice Alitos plurality opinion
bore the signatures of only three justices, his concurring colleagues,
Justices Clarence Thomas and Antonin G. Scalia, would have ventured
much further.575 They would have overruled Griffin v. California so as to
allow the prosecution to comment on silence in the face of an accusation,
even the defendants silence at trial.576
The Majority Position on the U.S. Supreme Court Toward NonCustodial Silence with Police Officers
The Salinas Plurality
Alito
Roberts
Kennedy
Scalia
770
[Vol. 60:687
580. Id. at 222, 462 N.W.2d at 12; see also MICH. R. EVID. 801.
581. People v. Redd, 486 Mich. 966, 967, 783 N.W.2d 93, 94 (2010) (Markman, J.,
concurring) (citing People v. Schollaert, 194 Mich. App. 158, 16667, 486 N.W.2d 312,
31617 (1992); People v. Solmonson, 261 Mich. App. 657, 665, 683 N.W.2d 761, 767
(2004)).
582. Id. at 967, 783 N.W.2d at 94 (citing Jenkins v. Anderson, 447 U.S. 231, 240
(1980)).
583. See Salinas v. Texas, 133 S. Ct. 2184 (2013).
584. People v. Meeboer, 439 Mich. 310, 321, 484 N.W.2d 621, 626 (1992) (citing
Solomon v. Shuell, 435 Mich. 104, 119, 457 N.W.2d 669, 675 (1990)). The introductory
material in this section borrows heavily, if not entirely, from the previous years Survey
article on evidence. See Meizlish, supra note 3, at 116768.
585. Meeboer, 439 Mich. at 323 n.17, 484 N.W.2d at 627 n.17 (emphasis added)
(citing State v. Larson, 472 N.W.2d 120, 125 (Minn. 1991)).
586. See MICH. R. EVID. 803; see also FED. R. EVID. 803.
2015]
EVIDENCE
771
a. Present-Sense Impressions
One of the more common hearsay exceptions is that appearing in
MRE 803(1)the present-sense impression, which the Michigan rules
define as [a] statement describing or explaining an event or condition,
made while the declarant was perceiving the event or condition, or
immediately thereafter.587 To establish that a hearsay statement falls
within the exception: (1) the statement must provide an explanation or
description of the perceived event, (2) the declarant must have personally
perceived the event, and (3) the explanation or description must have
been made at a time substantially contemporaneous with the event.588
However, in many, if not most, instances precise contemporaneity is not
possible and hence a slight lapse is allowable.589
In People v. Chelmicki, prosecutors charged Eric M. Chelmicki with
the felony of unlawful imprisonment and the misdemeanor of domestic
violence.590 Chelmicki and his girlfriend were living together in Macomb
County and an argument ensued over an eviction notice.591 The
defendants temper rose, prompting the victim to attempt to leave their
apartment via the fire escape.592 While she was on the fire escape, the
defendant grabbed her by her coat and dragged her back into the
apartment. The victim recalled that she had broken blood vessels in her
wrists after the assault.593
Neighbors observed part of the incident and reported that the victim
told them that defendant had turned the apartment stoves gas burners on
and was attempting to blow up the apartment complex.594 While the
defendant had already left the apartment by the time police arrived,
officers found the victim, who was visibly upset and crying, [and who]
told the officers that defendant had put a gun to her head.595 The officers
had the victim write a statement while they were investigating the
incident.596 The jury convicted the defendant at the trials conclusion, and
587. MICH. R. EVID. 803(1). The federal rule is virtually identical. See FED. R. EVID.
803(1).
588. People v. Chelmicki, 305 Mich. App. 58, 63, 850 N.W.2d 612, 616 (2014)
(quoting People v. Hendrickson, 459 Mich. 229, 236, 586 N.W.2d 906, 90809 (1998)).
589. Id. (quoting Hendrickson, 459 Mich. at 236, 586 N.W.2d at 909).
590. Id. at 6061, 850 N.W.2d at 61415.
591. Id. at 61, 850 N.W.2d at 615.
592. Id.
593. Id.
594. Id.
595. Id.
596. Id.
772
[Vol. 60:687
on appeal he argued that the trial court erred in admitting the victims
statement to the police in violation of the hearsay rule.597
However, a unanimous panel of the Michigan Court of Appeals
concluded that the statement fell within two hearsay exceptions,
including the present-sense impression.598
The statement provided a description of the events that took
place inside the apartment and the victim perceived the event
personally. Lastly, the statement was made at a time
substantially contemporaneous with the event, as the evidence
showed, at most, a lapse of 15 minutes between the time police
entered the apartment and the time the victim wrote the
statement.599
Accordingly, the panel of Chief Judge William B. Murphy and
Judges Michael J. Kelly and Amy Ronayne Krause, in a per curiam
opinion, affirmed the defendants conviction and sentence, for this and
other reasons.600
b. Past Recollection Recorded
At times during his or her testimony, a witness may be unable to
remember some or all aspects of the circumstances to which he or she
testifies.601 It not infrequently happens that a witness, under the
embarrassment of an examination, forgets, or omits to state, facts within
his knowledge, or is disinclined to disclose fully and definitely what he
knows.602Accordingly, courts allow a party to attempt to refresh the
witnesss memory with a document or some other item, even if the
witness was not the author or creator of the document or item.603
597. Id. at 6062, 850 N.W.2d at 61415.
598. Id. at 63, 850 N.W.2d at 616.
599. Id. It does not appear that the trial court or the Michigan Court of Appeals
considered whether the victims statements were admissible pursuant to the statutory
hearsay exception for domestic violence victims statements to police officers. See MICH.
COMP. LAWS ANN. 767.27c (West 2015); Meizlish, supra note 23, at 87174.
600. Chelmicki, 305 Mich. App. at 71, 850 N.W.2d at 620.
601. Hileman v. Indreica, 385 Mich. 1, 78, 187 N.W.2d 411, 412 (1971). This
introductory material to the past-recollection recorded exception borrows heavily, if not
entirely, from the 2012 Survey article on evidence. See Meizlish, supra note 23, at 864
65.
602. Hileman, 385 Mich. at 78, 187 N.W.2d at 412.
603. See People v. Hill, 282 Mich. App. 538, 547, 766 N.W.2d 17, 25 (2009), affd in
part, vacated in part, 485 Mich. 912, 733 N.W.2d 257 (2009); see also United States v.
Marrero, 651 F.3d 453, 47172 (6th Cir. 2011) (quoting Rush v. Ill. Cent. R.R. Co., 399
2015]
EVIDENCE
773
F.3d 705, 716 (6th Cir. 2005) (The propriety of permitting a witness to refresh his
memory from a writing prepared by another largely lies within the sound discretion of the
trial court.)). But see MICH. R. EVID. 612(b) ([When] the court in its discretion
determines that the interests of justice so require, an adverse party is entitled to have the
writing or object produced, if practicable, at the trial, hearing, or deposition in which the
witness is testifying.). The corresponding federal rule provides that:
Unless 18 U.S.C. 3500 provides otherwise in a criminal case, an adverse
party is entitled to have the writing produced at the hearing, to inspect it, to
cross-examine the witness about it, and to introduce in evidence any portion
that relates to the witnesss testimony. If the producing party claims that the
writing includes unrelated matter, the court must examine the writing in
camera, delete any unrelated portion, and order that the rest be delivered to the
adverse party. Any portion deleted over objection must be preserved for the
record.
FED. R. EVID. 612(b).
604. MICH. R. EVID. 803(5).
605. Id.
606. Chelmicki, 305 Mich. App. at 6162, 850 NW.2d at 615.
607. Id.
608. Id. at 62, 850 N.W.2d at 615 (alteration in original).
774
[Vol. 60:687
2015]
EVIDENCE
775
The plaintiff children sought to prove that their late father was the
statutory author of the works because federal copyright law provides that
there are no termination rights for works made for hire.621 Conversely,
Robert Brumley sought to show that his siblings had no termination
rights, as the songs were works made for hire.622
Prior to trial, Roberts siblings convinced the district court to grant
their motion in limine to exclude two articles from music publications,
one from 1977, the other from 1986, which provided statements that
Brumley, Sr. was a salaried employee of Hartford during the time that he
wrote the Song.623 After other evidentiary rulings, a jury trial resulted in
a verdict in the plaintiffs favor that the songs were not work made for
hire, triggering the heirs termination rights.624 Following the trial, the
district judge concluded that the heirs termination notice was valid.625
Robert filed an interlocutory appeal, challenging this decision as well as
the evidentiary rulings leading to the jury verdict in favor of his
opponents.626
On appeal, the Sixth Circuit panel observed that Roberts siblings did
not dispute the authenticity of the articles, satisfying the second
requirement of FRE 803(16).627 Nor was there a dispute that the articles
were at least 20 years old, satisfying the first requirement.628 The district
court, the appellate panel observed, remained on the right track as it
opined that the content of the document is a matter of evidentiary
weight left to the sole discretion of the trier of fact, and, therefore, the
factual accuracy of the statement is not pertinent when considering
whether the hearsay exception applies.629
The judge erred, however, when she reached outside Federal Rule
803 and excluded the articles pursuant to Rule 403 because [t]here is no
clear indication in these articles as to how the authors acquired the
information that they used to make representations regarding Brumleys
employment status at the relevant time.630 As I noted above, the Sixth
Circuit held that there is no foundational requirement that the authors of
621.
622.
623.
624.
625.
626.
627.
628.
629.
630.
776
[Vol. 60:687
Id.
Id. at 57475.
Id. at 579.
Id.
Id. at 580.
FED. R. EVID. 803(3).
See MICH. R. EVID. 803(3).
See United States v. Reichart, 747 F.3d 445, 45354 (6th Cir. 2014) (citing U.S.
CONST. amends. VI, XIV).
639. Id. at 448 (citing 17 U.S.C.A 1201(a)(2)(A) (West 2014)).
2015]
EVIDENCE
777
778
[Vol. 60:687
but noted first that Belcik admitted that he was in the Navy between
2004 and 2008 and that he was away in 2007 at the time of Reicherts
sale of the modified console and the search of his residence, and second,
that Belcik never testified that Reichert made the statements
contemporaneous with the 2007 event that was the subject of the
indictment.650 (Again, the exception only covers a statement of the
declarants then-existing state of mind . . . .651)
Addressing the defendants constitutional argument, the panel
observed that a defendant does not have an unfettered right to offer
evidence that is incompetent, privileged, or otherwise inadmissible under
standard rules of evidence,652 and that the Constitution permits judges
to exclude evidence that is repetitive, only marginally relevant or poses
an undue risk of harassment, prejudice, or confusion of the issues.653
Judge Richard A. Griffin, writing for a two-person majority of
himself and Judge John M. Rogers,654 concluded that there was no
constitutional violation because the friends testimony was only
marginal[ly] probative of Reicherts state of mind in 2007 and because
Reichert had at least one other avenue of putting his own statements and
beliefs into evidence: by taking the stand himself.655 Accordingly, the
panel affirmed the defendants conviction and sentence, for this and
other reasons.656 Dissenting, Judge Bernice B. Donald would have
reversed the conviction on the ground that the district court did not
properly instruct the jury.657
e. The New Notice-and-Demand Provision in the Federal
Rules Public Records Exception
Both the federal and state rules contain various hearsay exceptions
for the records of government, business, and religious organizations.658
For example, the exception in Federal Rule of Evidence 803(8) provides
an exception for:
2015]
EVIDENCE
779
780
[Vol. 60:687
2015]
EVIDENCE
781
782
[Vol. 60:687
674.
675.
676.
677.
678.
679.
680.
681.
682.
Id.
MICH. R. EVID. 803(8).
See MICH R. EVID. 901.
MICH. COMP. LAWS ANN. 766.11b(c); see MICH. R. EVID. 902.
See MICH. COMP. LAWS ANN. 766.11(d).
Id. 600.2167, repealed by 2014 Mich. Pub. Acts 124, 1.
Id.
See MICH. R. EVID. 804; see also FED. R. EVID. 804.
MICH. R. EVID. 804; FED. R. EVID. 804.
2015]
EVIDENCE
783
784
[Vol. 60:687
the difference between telling the truth and not telling the truth, to which
she responded, Yes. She also affirmed that she would honestly answer
the questions of the attorneys.692
The district court qualified RS as a witness after this voir dire.693 RS
testified that, on at least three occasions, Stanley Duncan touched her
private, indicating her vaginal area, and blew raspberries on her
vaginal area while her pants and underwear were off. The raspberries
hurt a little bit, and his touching really hurted. She testified that the
acts occurred in the bathroom of defendants home, where RS attended
daycare.694
The district court similarly voir dired RS prior to her testimony at
Vitas preliminary examination and found her qualified to testify.695 RS
repeated substantially the same answers that she previously gave
regarding Stanley Duncan, and also stated that she told Vita more than
once that Stanley had touched her. RS also testified that, on at least one
occasion while Stanley was touching her, Vita was just outside the
bathroom and that RS could see Vita.696
The district court bound over both defendants to the circuit court,
which scheduled a joint trial.697 At trial, almost a year later,698
RS was called to the stand and was first questioned by the court.
When asked whether she knew the difference between the truth
and a lie, RS responded, No, and was unable to explain what a
promise means. After RS struggled to answer questions similar
to those answered at the preliminary examinations, the trial court
excused the jury, and met with counsel, RS, and RSs parents in
chambers. Afterward, RS was again put on the stand, and again
answered, No to the questions regarding whether she knew
what the truth is, what a lie is, and what a promise is. RS was
clearly agitated. Throughout the courts questioning, RS had
tears in her eyes and was wringing her hands. RS began crying in
earnest just before the court excused her. The court ruled that she
was not competent to testify pursuant to MRE 601.699
692.
693.
694.
695.
696.
697.
698.
699.
2015]
EVIDENCE
785
786
[Vol. 60:687
2015]
EVIDENCE
787
712. Duncan, 494 Mich. at 73031, 835 N.W.2d at 40809 (Markman, J., concurring).
713. Id. at 73233, 835 N.W.2d at 409410.
714. Id. (quoting MICH. R. EVID. 804(a)).
715. Id. at 733, 835 N.W.2d at 410.
716. Id. at 736, 835 N.W.2d at 411.
717. Id. at 73334, 835 N.W.2d at 410 (citing People v. Meredith, 459 Mich. 62, 65
66, 586 N.W.2d 538, 53940 (1998)).
718. Id. (citing People v. Adams, 233 Mich. App. 652, 658, 592 N.W.2d 794, 797
(1999)).
719. Meredith, 459 Mich. at 6566, 586 N.W.2d at 53940; see also Adams, 233 Mich.
App. at 658, 592 N.W.2d at 794.
720. Duncan, 494 Mich. at 736, 835 N.W.2d at 411 (McCormack, J., concurring).
788
[Vol. 60:687
2015]
EVIDENCE
789
the novel argument that a courts admission of allegedly unreliable nontestimonial hearsay730 violated his rights under the due process clauses.731
The Sixth Circuit rejected Jasubhai Desais contention that a trial courts
admission of a statement against interest implicated his due process
rights.732
Police found Anna Marie Turetzky dead due to strangulation in a
motel parking lot in 1983.733 Turetzky and the petitioner had jointly
operated medical clinics, but their relationship soured and even produced
physical fights.734
The police investigated but initially did not find enough evidence
to indict anyone for the crime. The prosecution eventually
learned of Lawrence Gorskis 1984 testimony before a federal
grand jury, which implicated Desai in Turetzkys murder. Gorski
and his friend, Stephen Adams, had both worked at Desais
clinic. Gorski testified that, before the murder, Adams had told
him more than once that Desai wanted Turetzky killed. After the
murder, Adams confessed to Gorski that he had killed Turetzky
for a few thousand dollars. Adams later visited Gorski in
Chicago and told Gorski he was on his way to Arizona because
Desai wanted him to leave Michigan.735
A Wayne County jury found Desai guilty of first-degree murder in
2001.736 After exhausting his appellate remedies in state court, Desai
proceeded to the U.S. District Court in Detroit, which granted Desais
petition for relief.737 The state appealed to the Sixth Circuit.738The sole
issue before the Sixth Circuit in this instance739 was whether Gorskis
testimony as to Adamss statement against interest (his confession) was
so unreliable as to render the trial courts admission of this hearsay as
EVID. 804(b)(3). The Michigan rule requires corroborating circumstances only in
criminal cases, and only when the statement both inculpates the declarant and exculpates
the accused. See MICH. R. EVID. 804(b)(3).
730. For the distinction between testimonial and non-testimonial hearsay, see the
discussion on the Confrontation Clause in Part VIII.F.
731. Desai v. Booker, 732 F.3d 628, 630 (6th Cir. 2013).
732. Id. at 62829.
733. Id. at 629.
734. Id.
735. Id.
736. Id. at 630.
737. Id.
738. Id.
739. Id. The case had a long and tortured history in the Michigan and federal courts,
dating to 1995. Id. at 62930.
790
[Vol. 60:687
2015]
EVIDENCE
791
that rendered the declarant unavailable.751 Because the forfeiture-bywrongdoing principles in Rule 804 are essentially the same as the
forfeiture-by-wrongdoing exception to the Confrontation Clause of the
Sixth Amendment, I discuss forfeiture by wrongdoing in a subsequent
subsection of this Article.752
D. The Residual Exception
Brumley v. Albert E. Brumley & Sons, Inc.,753 a case I first discussed
in Part VIII.C.1.c, also provided the Sixth Circuit with a rare opportunity
to interpret a generally unsettled area of evidentiary law: the residual
exception to the hearsay rule. When an out-of-court statement does not
fall within one of the traditional hearsay exceptions in Rules 803 and
804, on rare occasions it might fall within the catch-all residual
exception.754 The federal exception appearing in Rule 807 allows the
court to admit hearsay statements if:
(1) the statement has equivalent circumstantial guarantees of
trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than
any other evidence that the proponent can obtain through
reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the
interests of justice.755
The Michigan exception appearing in Rule 803(24) is virtually
identical.756 In Brumley, the key question was whether a recorded
conversation between A.E. Brumley and his son, Albert E. Brumley Jr.,
fell within the residual exception.757 A transcript of the recording reads as
follows:
751.
752.
753.
2013).
754.
755.
756.
757.
792
[Vol. 60:687
2015]
EVIDENCE
793
794
[Vol. 60:687
(1992) (citing Amorello v. Monsanto Corp., 186 Mich. App. 324, 329, 463 N.W.2d 487,
490 (1990); Pauley v. Hall, 124 Mich. App. 255, 262, 355 N.W.2d 197, 20001 (1983)).
770. Shazor, 744 F.3d at 954.
771. Id. at 950.
772. Id.
773. Id. at 951.
774. Id.
775. Id. at 95253.
776. Id. at 953.
777. Id.
778. Id. at 95354.
779. Id.
780. Id. at 954.
781. Id. at 948, 954.
2015]
EVIDENCE
795
survive summary judgment, the district court found neither and granted
the defendants motion for summary judgment.782
On appeal, a Sixth Circuit panel of Judge Eric L. Clay, writing for
himself, Judge R. Guy Cole Jr., and U.S. District Judge William O.
Bertelsman,783 sidestepped whether there was direct evidence of
discrimination but resolved the appeal by considering whether there was
sufficient circumstantial evidence of discrimination to survive summary
judgment.784
To survive summary judgment on a circumstantial case of
discrimination, federal case law requires that the plaintiff make an initial
showing that she was a member of a protected class who her employer
treated differently than members outside of the protected class.785 The
panel concluded that the plaintiff made this prima facie case.786
The burden then shifted to the defendants to advance a legitimate,
nondiscriminatory justification for her termination.787 The employer met
this burden with some evidence that Shazor had lied about a PTM
official being unable to consult on labor relations, and in denying that
she was involved in selecting a firm other than PTM to consult on the
same issues.788
The burden then reverted to the plaintiff to show (1) that the
proffered reasons had no basis in fact, (2) that the proffered reasons did
not actually motivate [her termination], or (3) that they were insufficient
to motivate discharge.789 The Sixth Circuit then observed that the
plaintiff had testified that her employers official had told her he was
unavailable to consult, and that she was not involved in the decision to
hire an entity other than PTM for that purpose.790
The defendants advanced Hocks testimony that the transit agencys
general counsel told him that Shazor, in fact, was involved in the
decision to hire an outside consultant.791 The appellate panel, however,
observed that Hocks testimony as to what the general counsel told him
782. Id. at 95459.
783. Bertelsman, of the Eastern District of Kentucky, sat by designation on the Sixth
Circuit panel. Id. at 949.
784. Id. at 95657.
785. Id. at 957 (citing Griffin v. Finkbeiner, 689 F.3d 584, 592 (6th Cir. 2012)).
786. Id. at 95759.
787. Id. at 959 (alteration in original) (emphasis omitted) (citing Davis v. Cintas Corp.,
717 F.3d 476, 491 (6th Cir. 2013)).
788. Id.
789. Id. (quoting Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 349 (6th Cir.
2012)).
790. Id. at 95960.
791. Id. at 960.
796
[Vol. 60:687
2015]
EVIDENCE
797
798
[Vol. 60:687
2015]
EVIDENCE
799
***Confrontation
Clause***
Federal or state
NonTestimonial hearsay rule of evidence
Statements
Civil Cases
Federal or state
hearsay
rule
of
evidence
Federal or state
hearsay
rule
of
evidence
800
[Vol. 60:687
sexual assault nurse examiner that her father, the defendant, had had
sexual contact with her.816 At trial, the teacher, Gonzales (whose first
name does not appear in the opinion) testified that CB had told her that
Dave Junior hurt her by licking and digitally penetrating her butt.817
However, despite multiple attempts to facilitate her testimony, CB left
the witness chair, hid under the podium, refused to answer questions
asked by the prosecutor, indicated that she would not tell the truth, stated
that she was fearful of the jury, and expressed a desire to leave the
courtroom.818 The trial court admitted the statements to Gonzalez, the
forensic interviewer, and the nurse, pursuant to the forfeiture-bywrongdoing hearsay exception (as Gonzalez was not in law-enforcement,
the statements did not appear to have implicated the Confrontation
Clause).819
The trial court had found the defendant responsible for wrongdoing
and that he forfeited his hearsay objection, after reviewing a recording of
CBs statements with the forensic interviewer.820 When asked if
defendant had said anything during the alleged abuse, CB stated that
defendant told her not to tell, and that [defendant] didnt want me to
tell nobody or else she would get in trouble.821
Burns took the stand in his own defense and denied committing any
abuse.822 Without any evidence substantiating the abuse other than the
victims hearsay statements, a Bay County jury convicted the defendant
of first-degree criminal sexual conduct, an offense for which the
maximum potential punishment is life.823 The court of appeals vacated
the conviction on evidentiary grounds, the primary basis for its decision
being that that the prosecution failed to lay a proper foundation to apply
the forfeiture-by-wrongdoing doctrine.824 The prosecution appealed to
the Michigan Supreme Court.825
For the purposes of the opinion, Justice McCormack did not dispute
that the prosecution established the first prong of the forfeiture doctrine,
that defendant did, in fact, engage in wrongdoing.826 The prosecution,
816. Id. at 107, 832 N.W.2d at 740.
817. Id. at 107, 832 N.W.2d at 741.
818. Id. at 108, 832 N.W.2d at 741.
819. Id. at 10809, 832 N.W.2d at 74143.
820. Id. Burns did not dispute on appeal the trial courts finding that CB was
unavailable for purpose of Rule 804 and the Confrontation Clause. Id. at 109 n.7.
821. Id. at 108, 832 N.W.2d at 741.
822. Id. at 109, 832 N.W.2d at 741.
823. Id. (citing MICH. COMP. LAWS ANN. 750.520b (West 2015)).
824. People v. Burns, No. 304403, 2012 Mich. App. LEXIS 1126, at *26 (June 14,
2012).
825. Burns, 494 Mich. at 109, 832 N.W.2d at 74142.
826. Id. at 115, 832 N.W.2d at 745.
2015]
EVIDENCE
801
802
[Vol. 60:687
b. People v. Roscoe
A Michigan Court of Appeals panel applied Burns to a new set of
facts in People v. Roscoe, which involved a murder at an Ann Arbor car
dealership.836 I discussed the facts of the case in Part IV.B.1. The victim
identified defendant in hearsay statements on August 20, 23, and 26,
2006, but Roscoe challenged only the August 23, 2006 statement.837
The appellate panel, citing Burns, concluded that the prosecution
failed to establish that the murder resulted from the defendants intent to
render the victim unable to testify.838 [D]efendants action [sic] were as
consistent with the inference that his intention was that the breaking and
entering he was committing go undiscovered as they were with an
inference that he specifically intended to prevent the victim from
testifying.839 Accordingly, a unanimous panel of Judges Donald S.
Owens, Stephen L. Borrello, and Elizabeth L. Gleicher,840 in a per curiam
opinion, held that the trial court erred in admitting the August 23
statement
pursuant
to
the
forfeiture-by-wrongdoing
841
hearsay/confrontation exception. The court, however, did not reverse
Roscoes conviction, because the error was not outcome determinative
given the strength of the prosecutions case.842
IX. RULES 90103: AUTHENTICATION
The only significant change to the rules of authentication is a
statutory exception for certain documents in preliminary examinations in
felony criminal cases.843 I discuss this exception in Part VIII.C.1.f.
X. RULES 100108: THE BEST-EVIDENCE RULE, DUPLICATES, AND
SUMMARIES
There were no significant cases during the Survey period that
discussed the best-evidence rule or the related provisions in Rules 1001
through 1008.
836. People v. Roscoe, 303 Mich. App. 633, 63839, 846 N.W.2d 402, 40607 (2014).
837. Id. at 640, 846 N.W.2d at 407.
838. Id. at 64142, 846 N.W.2d at 408.
839. Id. at 641, 846 N.W.2d at 408 (citing Burns, 494 Mich. at 11617, 832 N.W.2d at
756 (2013)).
840. Id. at 63738, 846 N.W.2d at 406.
841. Id. at 642, 846 N.W.2d at 408.
842. Id. at 64243, 846 N.W.2d at 40809.
843. MICH. COMP. LAWS ANN. 766.11b (West 2015).
2015]
EVIDENCE
803
844. People v. Matzke, 303 Mich. App. 281, 28485, 842 N.W.2d 557, 55960 (2013);
United States v. Ogden, 685 F.3d 600, 606 (6th Cir. 2012). I previously discussed Ogden
in the preceding Survey article on evidence. See Meizlish, supra note 3, at 1190.
845. Matzke, 303 Mich. App. at 28485, 842 N.W.2d at 55960 (citing MICH. R. EVID.
1101(b)(3)).
846. Id. (citing MICH. COMP. LAWS ANN. 780.766(2)).
847. Id.
848. Id. at 282, 287, 842 N.W.2d at 558, 561.
849. Id. at 284 n.1, 842 N.W.2d at 560 n.1.
850. Id. at 28283, 842 N.W.2d at 55859.
851. Id. at 283, 842 N.W.2d at 559.
804
[Vol. 60:687
the separator.852 The court ordered restitution in that amount, and the
defendant appealed.853
The appellate panel reviewed the trial courts decision for clear
error854 and concluded that a preponderance of evidence supported the
trial courts order.855 Accordingly, the court affirmed the trial judges
restitution order.856
XII. REBUTTAL EVIDENCE
As they sometimes do with impeachment evidence, Michigan courts
relax the rules of evidence when applying them to rebuttal evidence, after
a party has opened the door to a discussion of an issue by introducing
the issue himself.857 The Michigan Supreme Court explained in People v.
Figgures that [r]ebuttal evidence is admissible to contradict, repel,
explain or disprove evidence produced by the other party and tending
directly to weaken or impeach the same.858 However, contradictory
evidence is admissible only when it directly tends to disprove a witness
exact testimony.859
The recent U.S. Supreme Court case of Kansas v. Cheever860 nicely
outlines the principle behind rebuttal evidence. While a federal murder
prosecution was pending against him, the district court ordered Scott D.
Cheever to undergo a forensic psychiatric examination to assess his
proposed defense of voluntary intoxicationCheever contended his
ingestion of methamphetamine affected his ability to premeditate the
murder of a county sheriff.861 The federal court dismissed the case before
trial (for reasons that are unimportant to this Article), and the state
charged Cheever with capital murder.862
At trial, Cheevers counsel presented to the jury the dean of Auburn
Universitys pharmacy school, Roswell Lee Evans, who testified that the
852. Id.
853. Id.
854. Id. at 28384, 842 N.W.2d at 559 (citing People v. Allen, 295 Mich. App. 277,
281, 813 N.W.2d 806, 208 (2011)).
855. Id. at 28687, 842 N.W.2d at 56061.
856. Id. at 28687, 842 N.W.2d at 561.
857. People v. Figgures, 451 Mich. 390, 398400, 547 N.W.2d 673, 67778 (1996).
858. Id. at 399, 547 N.W.2d at 677 (citations omitted) (quoting People v. De Lano, 318
Mich. 557, 570, 28 N.W.2d 909, 914 (1947)).
859. City of Westland v. Okopski, 208 Mich. App. 66, 72, 527 N.W.2d 780, 785
(1994) (citing People v. McGillen, 392 Mich. 251, 26768, 220 N.W.2d 677, 684
(1974)).
860. 134 S. Ct. 596 (2013).
861. Id. at 599.
862. Id.
2015]
EVIDENCE
805
Id.
Id. at 599600.
Id.
Id. at 600 (citing State v. Cheever, 284 P.3d 1007, 101920 (Kan. 2012)).
Id. at 60001 (citing Estelle v. Smith, 451 U.S. 454, 468 (1981)).
Id. at 598.
Id. at 600 (quoting Buchanan v. Kentucky, 483 U.S. 402, 423424 (1987)).
Id. at 601.
Id.
Id. at 603.
806
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the elections of 2010 and 2012 are four membersJustices Mary Beth
Kelly, Brian K. Zahra, Bridget M. McCormack, and David F. Viviano.873
(A fifth, Richard H. Bernstein, joined the court in January 2015.874) Over
the last few years, both court members and outside observers note a great
degree of unanimity and collegiality that was lacking in prior years.875
Contemporaneously, readers probably have noticed that both the
Michigan Supreme Court and Michigan Court of Appeals have resolved
evidentiary disputes with zero acrimony and that unanimous opinions are
more the rule than the exception. The same is true in the Sixth Circuit.
However, one clear takeaway is that appellate courts are increasingly
instructing the lower courts to be more proactive in restricting parties
from introducing hearsay at trial and are less likely to conclude that a
statements proponent was offering the statements for a non-hearsay
purpose. Similarly, courts are less likely to admit other-acts evidence
absent a clear showing that the proponents purpose is not to establish a
persons character to commit those kinds of acts. Nevertheless, even
when they find error, the courts do not hesitate to affirm the result of a
case when the evidence is overwhelming. The lesson for practitioners is,
be mindful of the rules, lest your trial become the less-thanoverwhelming victory that does not survive appeal.
Having said that, thank you for reading this Article, and again, do not
hesitate to send feedback my way.
873. Justices,
MICH.
CTS.:
ONE
CT.
OF
JUST.,
http://courts.mi.gov/courts/michigansupremecourt/justices/pages/default.aspx (last visited
Mar. 4, 2015).
874. Carol Hopkins, Bernstein Ready to Take on Role as Nations First Blind Justice,
DAILY TRIB. (Nov. 7, 2014, 1:31 PM), http://www.dailytribune.com/generalnews/20141107/bernstein-ready-to-take-on-role-as-nations-first-blind-justice.
875. Tim Skubick, Michigan Supreme Court Gets Warm and Fuzzy, MICH. LIVE (Sept.
13,
2013,
8:11
AM),
http://www.mlive.com/politics/index.ssf/2013/09/tim_skubick_michigan_supreme_c.htm
l; Jonathan Keim, An Era of Unanimity on the Michigan Supreme Court?, NATL REV.
(Aug. 12, 2014, 2:31 PM), http://www.nationalreview.com/bench-memos/385208/eraunanimity-michigan-supreme-court-jonathan-keim.
INSURANCE LAW
JAMES T. MELLON
DAVID A. KOWALSKI
I. INTRODUCTION .................................................................................. 808
II. DECISIONS OF THE MICHIGAN SUPREME COURT ............................. 808
A. The No-Fault Act, MCL Sections 500.3101 et seq..................... 808
1. MCL 500.3113: Exclusion for A Motor Vehicle or
Motorcycle Which He or She Had Taken Unlawfully ..... 808
2. MCL 500.3114(1): A Relative of Either Domiciled in the
Same Household.............................................................. 810
3. MCL Section 500.3114(5): Double Dipping ................... 813
B. Statutory Appraisal and Case Evaluation Sanctions ................. 814
C. Legally Responsible in the Definition of an Insured......... 816
III. DECISIONS OF THE MICHIGAN COURT OF APPEALS ........................ 817
A. The No Fault Act: MCL Sections 500.3101 et seq..................... 817
1. MCL Section 500.3114(5): Injuries from a Motorcycle
Accident Where a Motor Vehicle Was Involved in the
Accident .......................................................................... 819
2. MCL Section 500.3163: Certification Regarding
Automobile Liability Policy Protections for Nonresidents 820
3. MCL 500.3148: Attorney Fees............................................. 821
B. FOIA and the Insurance Code ................................................... 822
C. Insurance Payments and Discounts as Collateral Sources... 823
D. Reciprocal States Within the Insurance Code....................... 825
E. Performance Bonds.................................................................... 826
F. Independent Medical Examinations and Medical Records
Access ...................................................................................... 827
G. Homeowners Insurance ............................................................. 828
H. Releases and Insurance Agents ................................................. 829
I. Burden of Proof on an Insurers Affirmative Defenses to a
Breach of Contract Action ....................................................... 831
J. Property Insurance ..................................................................... 832
K. Insurance Agents and Business Coverage ................................. 835
Principal, Mellon Pries, P.C. B.A., 1967, University of Detroit; M.A., 1970,
University of Detroit Mercy; J.D., 1973, University of Detroit Mercy; LL.M, 2003,
Wayne State University.
Associate, Mellon Pries, P.C. B.A., 2004, University of Michigan; J.D., 2007,
University of Detroit Mercy.
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I. INTRODUCTION
Insurance touches us all in many ways, whether obvious or not. For
example, it facilitates commerce and allows us to shift risk from fire,
accident, property loss, personal and bodily injury, and the financial loss
associated with death. Insurance is an ever-present part of peoples daily
lives. These shifts have a cost felt by most individuals on at least a yearly
basis. Michigan is currently the home of the highest average automobile
insurance premium in the United States, at $2,551 per year.1 Further,
most Michigan citizens will likely see nearly 10% increases in health
insurance premiums for 2015.2 Court decisions regarding insurance
matters, therefore, have a real effect on Michigan citizens, even if most
individuals only consider insurance as a yearly premium.
II. DECISIONS OF THE MICHIGAN SUPREME COURT
A. The No-Fault Act, MCL Sections 500.3101 et seq.3
Automobiles are a part of everyday life, and it is therefore little
wonder that No-Fault Act cases frequently find themselves before the
appellate courts of this state.
1. MCL 500.3113: Exclusion for A Motor Vehicle or Motorcycle
Which He or She Had Taken Unlawfully4
For the second time in two years, the Michigan Supreme Court
considered the issue of joyriding and the taken unlawfully No-Fault
exclusion.5 Lejuan Rambin, who did not own a motor vehicle, was
1. Barbara Marquand, Car Insurance Rates by State, 2014 Edition, INSURE.COM,
http://www.insure.com/car-insurance/car-insurance-rates.html (last updated Feb. 21,
2014).
2. Michigan Health Insurers Propose Higher 2015 Rates, MLIVE (Jun. 27, 2014,
8:00
AM),
http://www.mlive.com/lansingnews/index.ssf/2014/06/michigan_health_insurers_propo.html.
3. MICH. COMP. LAWS ANN. 500.3101500.3179 (West 2015).
4. Id. 500.3113.
5. Rambin v. Allstate Ins. Co., 495 Mich. 316, 319, 852 N.W.2d 34, 35 (2014). The
Michigan Supreme Court stated in Rambin that in a previous case:
[w]e held a person injured while driving a motor vehicle that was taken
contrary to the express prohibition of the vehicle owner cannot receive PIP
benefits. We further held that any person who takes a vehicle contrary to a
provision of the Michigan Penal Codeincluding MCL 750.413 and MCL
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authority to take the motorcycle, and, if true, that he had not taken the
motorcycle unlawfully.16 The Michigan Supreme Court was highly
skeptical of Mr. Rambins assertions but remanded for further
proceedings on that question of fact.17
2. MCL 500.3114(1): A Relative of Either Domiciled in the Same
Household18
In consolidated cases, the Michigan Supreme Court considered the
domicile of minor children of divorced parents for purposes of the NoFault Act.19 The first case involved a deceased minor, Josalyn, where
[t]he judgment of divorce granted Lawrence and Rosinski joint legal
custody . . . but Rosinski was given primary physical custody . . . .20
Lawrence was granted liberal parenting time.21 Josalyn was in a vehicle
driven by Rosinski when another driver ran a stop sign and struck the
Rosinski vehicle, killing Josalyn.22 Farm Bureau General Insurance of
Michigan (Farm Bureau) insured Rosinski, while Grange Insurance
Company (Grange) insured Lawrence; Grange denied coverage.23 In
the declaratory action between Farm Bureau and Grange, the trial court
concluded that Josalyn had two domiciles and therefore determined that
Farm Bureau and Grange were in the same order of priority.24 The
Michigan Court of Appeals affirmed, concluding that domicile and
residence for purposes of the No-Fault Act were legally
synonymous.25
The second case also involved a deceased minor, Sarah, with a
judgment of divorce that granted joint legal custody to both parents but
awarded physical custody to the father, Francis Campanelli; the mother,
Tina Taylor, was permitted reasonable visitation.26 Campanelli
subsequently moved the family to Tennessee and obtained an order
allowing him to change the childrens domicile to Tennessee, without
changing the joint legal custody.27 In 2007, sixteen-year-old Sarah stayed
16. Id. at 333, 852 N.W.2d at 43.
17. Id. at 336, 852 N.W.2d at 44.
18. MICH. COMP. LAWS ANN. 500.3114 (West 2015).
19. Grange Ins. Co. v. Lawrence, 494 Mich. 475, 481, 835 N.W.2d 363, 36566
(2013).
20. Id. at 482, 835 N.W.2d at 366.
21. Id.
22. Id.
23. Id. at 483, 835 N.W.2d at 367.
24. Id. at 48384, 835 N.W.2d at 367.
25. Id. at 485, 835 N.W.2d at 368.
26. Id. at 486, 835 N.W.2d at 36869.
27. Id.
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with her mother for the summer and, with Campanellis permission,
remained with her mother in Michigan for the fall to attend school.28 In
November 2007, Sarah sustained fatal injuries while a passenger in a
friends automobile that was insured by State Farm Mutual Automobile
Insurance Company (State Farm).29 In a declaratory action between
State Farm and Automobile Club Insurance Association (ACIA), the
insurer of Sarahs uncle (with whom Sarah resided), the trial court
granted summary disposition to State Farm.30 The court of appeals
reversed, finding that a question of fact existed as to Sarahs domicile.31
The Michigan Supreme Court determined that domicile is a legal
term of art.32 The court noted:
For over 165 years, Michigan courts have defined domicile to
mean the place where a person has his true, fixed, permanent
home, and principal establishment, and to which, whenever he is
absent, he has the intention of returning. . . . In this regard, the
Court has recognized that [i]t may be laid down as a settled
maxim that every man must have such a national domicile
somewhere. It is equally well settled that no person can have
more than one such domicile, at one and the same time.33
A person may have multiple residences but only one domicile.34
Domicile is primarily a question of intent, when considering all facts.35
There was no indication that the legislature intended to depart from the
common law meaning when using domicile in the No-Fault Act.36 A
prior Michigan Supreme Court decision had concluded that the terms
domicile and residence are legally synonymous (except in special
circumstances).37 The court clarified that phrase as recognizing that
residence has sometimes been given the same meaning as domicile
but did not establish an absolute rule and, further, did not endorse the
28. Id. at 487, 835 N.W.2d at 369. Taylor was living with her great uncle, Terry
Graville, who was insured by Automobile Club Insurance Association (ACIA). Id.
29. Id.
30. Id. at 488, 835 N.W.2d at 36970.
31. Id. at 48889, 835 N.W.2d at 370.
32. Id. at 493, 835 N.W.2d at 372.
33. Id. at 49394, 835 N.W.2d at 372 (quoting In re High, 2 Doug. 515, 523 (Mich.
1847)).
34. Id. at 494, 835 N.W.2d at 372.
35. Id. at 495, 835 N.W.2d at 373.
36. Id. at 496, 835 N.W.2d at 37374.
37. Id. at 498, 835 N.W.2d at 375 (emphasis omitted) (quoting Workman v. Detroit
Auto. InterIns. Exch., 404 Mich. 477, 495, 274 N.W.2d 373, 379 (1979)).
812
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814
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2015]
INSURANCE LAW
815
Id.
Id. at 34445, 852 N.W.2d at 2425.
Id. at 345, 852 N.W.2d at 25.
Id.
Id.
Id.
Id. at 346, 852 N.W.2d at 25.
Id. at 348, 852 N.W.2d at 27.
MICH. CT. R. 2.403(O)(2).
Acorn Inv. Co., 495 Mich. at 349, 852 N.W.2d at 27.
Id. at 350, 852 N.W.2d at 28.
Id. at 35051, 852 N.W.2d at 2829.
Id.
816
[Vol. 60:807
and liabilities of the parties.81 The appraisal was not akin to a settlement
because the circuit court retained authority to overturn the appraisal
award.82 Additionally, unlike a stipulated order of dismissal, the
judgment was a final determination of the rights and obligations by the
circuit court.83 When the judgment entered, the parties still did not agree
as to the proper amount of the appraisal award, so the action was not a
settlement.84 As to the debris removal expenses, there is a colorable
argument as to whether the appraisal panel was empowered to consider
such expenses as part of its award and, if it did have such authority,
whether it was error not to include those expenses in the award.85 The
court remanded the case for consideration of the debris removal issue.86
C. Legally Responsible in the Definition of an Insured
The Michigan Supreme Court peremptorily reversed the Michigan
Court of Appeals in a case involving a personal injury sustained in a
boating accident based on the definition of an insured in a policy
issued by Farm Bureau Mutual Insurance Company of Michigan.87
Nicholas Bowers was injured in a boating accident.88 The boat, owned by
Mr. Bowers parents, was being piloted by Mr. Bowers wife; the policy
excluded coverage for injury to individuals legally responsible for the
boat.89 The circuit court ruled in favor of Mr. Bowers.90 The Michigan
Court of Appeals noted that injury to any insured was excluded by the
policy, and insured was a defined term: (3) Any person or
organization (a) legally responsible for animals or watercraft owned by
an insured . . . but only in so far as . . . . that person or organization has
the custody or use of the animals or watercraft with the owners
permission.91
The policy did not define legally responsible.92 The Michigan
Court of Appeals looked to the commonly used meaning of the term;
81. Id. at 35152, 852 N.W.2d at 29.
82. Id. at 35152, 852 N.W.2d at 29.
83. Id. at 35556, 852 N.W.2d at 3031.
84. Id. at 356, 852 N.W.2d at 31.
85. Id. at 35859, 852 N.W.2d at 3233.
86. Id. at 359, 852 N.W.2d at 3233.
87. Farm Bureau Mut. Ins. Co. of Mich. v. Bowers, 495 Mich. 905, 839 N.W.2d 492
(2013).
88. Farm Bureau Mut. Ins. Co. of Mich. v. Bowers, 2013 WL 3455499 at *1 (Mich.
Ct. App. July 9, 2013).
89. Id.
90. Id.
91. Id. at *2.
92. Id. at *3.
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the 36th District Court seeking No-Fault benefits from Home Owners
Insurance Company, which moved to consolidate the cases, without
objection.102 While the complaint by the claimant alleged benefits of less
than $25,000, after discovery the claimant offered proof of damages
greatly exceeding the jurisdictional limit; the claims of the providers
were less than $25,000.103 The trial court refused to dismiss or transfer
the actions; instead, it simply decided that whatever the jury awarded
would be reduced to the jurisdictional limit of $25,000.104
The Michigan Court of Appeals noted that while it is true that the
medical providers can bring an independent cause of action against a NoFault insurer, their claims are dependent on the claimant being able to
establish:
accidental bodily injury arising out of the . . . use of a motor
vehicle, MCL 500. 3105(1), that they provided reasonably
necessary products, services and accommodations for [Moodys]
care, recovery, or rehabilitation, MCL 500.3107 (1)(a), and that
at the time of the accident, Moody was domiciled in the same
household as his father who was insured by Home Owners,
MCL 500.3114 (1).105
Because the claims with respect to the No-Fault insurers liability
were identical and were consolidated for trial, the court consider[ed]
them merged for the purpose of determining the amount in controversy
under MCL 600.8301(1).106 In fact, the claimant could have brought all
the claims in a single case, and it is the claimants entitlement to benefits
that medical providers are allowed to assert.107 A claimant may waive a
claim for No-Fault benefits, and the medical provider is bound by that
waiver, with the providers remedy being an action against the
claimant.108 In this case, because the total of all claims of the claimant
and the providers exceeded the jurisdictional limit of the district court,
the entire judgment was void, and the providers claims could not be
severed.109 The court further found that it was reversible error for a
plaintiffs counsel to make comments regarding the assigned claims
102.
103.
104.
105.
106.
107.
108.
109.
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cause of the accident, not whether the motor vehicle was actually
involved in the accident. That is, had the motorcycle actually
collided with the motor vehicle, we would not consider whether
the motorcyclist or the motor vehicle driver was at fault in
causing the accident, nor would we consider whether the
motorcyclist could have taken evasive action and avoided the
accident. But, where there is no actual collision between the
motorcycle and the motor vehicle, we cannot say that the motor
vehicle was involved in the accident merely because of the
motorcyclists subjective, erroneous perceived need to react to
the motor vehicle.119
Subjective need would not suffice.120
2. MCL Section 500.3163: Certification Regarding Automobile
Liability Policy Protections for Nonresidents121
James Perkins, a Kentucky resident, was riding his motorcycle on a
Michigan highway when he collided with a motor vehicle operated by
Michigan resident Sarah Kaplan.122 State Farm insured Mr. Perkins
motor vehicles in Kentucky; his motorcycle was insured with
Progressive Northern Insurance Company (Progressive Northern), and
Auto-Owners Insurance Company (Auto-Owners) insured Ms.
Kaplans vehicle.123 The trial court granted State Farm and Progressive
Northern summary disposition and ruled that Auto-Owners was obligated
to provide Michigan No-Fault benefits to Mr. Perkins.124
Auto-Owners sole argument was that Mr. Perkins was not entitled to
No-Fault benefits because his motorcycle insurer had not filed a
certificate in compliance with MCL section 500.3163, and consequently,
MCL section 500.3113(c) applied;125 the statute excludes a person from
No-Fault benefits if [t]he person was not a resident of this state, was an
occupant of a motor vehicle or motorcycle not registered in this state,
and was not insured by an insurer which has filed a certification in
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tortfeasor because that settlement was paid to Makenzie and her parents
as co-plaintiffs, and the verdict as to the remaining defendants was only
for injury to Makenzie.161
The court of appeals determined that the trial court erred in
permitting the partial common law set off because the complaint was
brought against all defendants concerning a single incident, the birth of
Makenzie, and did not apportion the settlement among the separate
claims of the plaintiffs.162 Where liability is joint and several, as would
be the case on these facts, any settlement must be offset against the
amount of injury determined to represent all of the plaintiffs damages.163
[A]pportionment of an indivisible lump-sum settlement into partial,
severable settlements for each plaintiff is not permitted.164 Additionally,
if apportionment was necessary, it should be in accord with the
determination of the jury, valuing the parents claims at $0, which would
make their portion of the settlement $0 as well.165
As to the insurance discounts, those amounts do fit within the
definition of collateral source, but an exception exists if the
contractual lien [of the collateral source] has been exercised.166 The
statute does not specify that the exception is limited to the amount of the
lien exercised or the amount actually paid by the collateral source.167 The
collateral source statute is in partial derogation of the common law rule
and is therefore strictly construed so as to make the least change to the
common law.168
It is undisputed that each insurance company that discharged
plaintiffs medical expenses, in part by cash payment and in part
by an insurance discount, also was entitled by contract to a lien
against the proceeds of plaintiffs civil action and exercised
[the lien] pursuant to subsection (3). MCL 600.6303(4). Thus,
applying the plain terms of the last sentence of 6303(4)
compels the conclusion that both the cash payments and
discount, i.e., the benefits received or receivable from an
insurance policy, are excluded as statutory collateral source
benefits. This reading of the statutes plain terms makes the
161. Id. at 19798, 852 N.W.2d at 20102.
162. Id. at 203, 852 N.W.2d at 204.
163. Id. at 20304, 852 N.W.2d at 20405.
164. Id. at 204, 852 N.W.2d at 205.
165. Id. at 206, 852 N.W.2d at 20506.
166. Id. at 20607, 852 N.W.2d at 206 (emphasis omitted) (quoting MICH. COMP.
LAWS ANN. 600.6303(4) (West 2014)).
167. Id. at 207, 852 N.W.2d at 206.
168. Id.
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least change in the common law. Velez [v. Tuma], 492 Mich 1,
17; 821 N.W.2d 432 (2011). The Legislature could have, but did
not, write the statute to say that the 6303(4) collateral source
exclusion is limited to the amount of a validly exercised
lien.169
Thus, regardless of the lien amount actually exercised, the exclusion
applies to all amounts paid or payable, which includes both amounts
the insurer actually paid and amounts realized as a discount obtained by
the insurer with the medical provider.170
D. Reciprocal States Within the Insurance Code
In May 2002, Allstate Painting and Contracting contracted with the
Michigan Department of Transportation (MDOT) to perform certain
Mackinac Bridge maintenance work.171 American Motorists Insurance
Company (AMICO) provided a performance bond for the work, which
included a two-year warranty period.172 One month prior to the
expiration of the warranty period, an inspection determined the work was
deficient, and the defects were not corrected, resulting in a lawsuit.173
AMICO moved to stay the proceedings because its parent was the
subject of an order for rehabilitation in an Illinois state court, and
AMICO was to be the subject of a separate order for rehabilitation to be
entered shortly thereafter.174 AMICO moved to dismiss based on the
order of rehabilitation, which prohibited parties from bringing or further
prosecuting claims against AMICOs parent, except as they arise in or
are brought into the rehabilitation proceedings.175 The motion was
denied, and while an application for leave was pending with the
Michigan Court of Appeals, the Illinois state court entered an order of
liquidation against AMICO.176
The Michigan Court of Appeals granted the application for leave to
appeal.177 It concluded that MCL section 500.8156(1) controlled the
case: In a liquidation proceeding in a reciprocal state against an insurer
169. Greer, 305 Mich. App. at 212, 852 N.W.2d at 209.
170. Id. at 213, 852 N.W.2d at 209.
171. Dept of Transp. v. Am. Motorists Ins. Co., 305 Mich. App. 250, 251, 852
N.W.2d 645, 646 (2014).
172. Id.
173. Id. at 252, 852 N.W.2d at 64647.
174. Id.
175. Id. at 25253, 852 N.W.2d at 64647.
176. Id. at 253, 852 N.W.2d at 647.
177. Id. at 25354, 852 N.W.2d at 647.
826
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domiciled in that state, claimants against the insurer who reside within
this state may file claims either with the ancillary receiver, if any, in this
state or with the domiciliary liquidator.178 The issue was whether
Illinois qualified as a reciprocal state, as used in MCL section
500.8156(1), and if it did so qualify, MDOTs only claim would be in
Illinois, as no ancillary receiver was appointed in Michigan.179 A
reciprocal state must meet three factors:
(i) In substance and effect [MCL 500.8118(1), 8152, 8153, 8155,
8156, and 8157] are in force.
(ii) Provisions requiring that the commissioner or equivalent
official be the receiver of a delinquent insurer are in force.
(iii) Some provision for the avoidance of fraudulent conveyances
and preferential transfers are in force.180
In this case, Illinois has a statute substantively similar to that of
Michigan for the first requirement; Illinois provides that the director of
insurance is the receiver, satisfying the second requirement; and Illinois
prohibits fraudulent conveyances and preferential transfers as
voidable.181 Therefore, Illinois is a reciprocal state, and all claims must
be filed with the Illinois liquidator because there is no ancillary receiver
in Michigan.182
E. Performance Bonds
The Livingston County Board of Public Works (County) engaged
Northline Excavating, Inc. (Northline) to complete a sanitary sewer
project in 2007 and required a liquidated damages provision of $1,000
per day for tardy completion, as well as a performance bond in the
contract amount of $251,035.183 Northline encountered difficulties in
construction, and the County rejected Northlines plans of action as to
how to complete the contract.184 The County declared that Northline was
178. Id. at 254, 852 N.W.2d at 64748.
179. Id. at 25455, 852 N.W.2d at 648.
180. Id. at 255, 852 N.W.2d at 648 (quoting MICH. COMP. LAWS ANN. 500.8103(l)
(West 2015)).
181. Id. at 25556, 852 N.W.2d at 64849.
182. Id. at 257, 852 N.W.2d at 649.
183. Northline Excavating, Inc. v. Livingston Cnty., 302 Mich. App. 621, 62223, 839
N.W.2d 693, 69495 (2013).
184. Id. at 626, 839 N.W.2d at 69697.
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209.
210.
211.
212.
213.
214.
215.
216.
217.
Id.
Id. at 368, 838 N.W.2d at 723.
Id. at 368, 838 N.W.2d at 724.
Id. at 36869, 838 N.W.2d at 724.
MICH. COMP. LAWS ANN. 29.4(6) (West 2015).
Id. 500.4509(2).
Radu, 302 Mich. App. at 37071, 838 N.W.2d at 72425.
Id. at 371, 838 N.W.2d at 725.
Id. at 375, 838 N.W.2d at 727.
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832
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834
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251. Id. at 52627, 847 N.W.2d at 67072 (quoting Foremost Ins. Co., 439 Mich. at
38990, 486 N.W.2d at 605).
252. Id. at 527, 847 N.W.2d at 671.
253. Id. at 529, 847 N.W.2d at 672.
254. Id. at 531, 847 N.W.2d at 673.
255. Id.
256. Id. at 532, 847 N.W.2d at 67374.
257. Id. at 53336, 847 N.W.2d at 67476.
258. Id. at 53738, 847 N.W.2d at 67677.
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267. Id. at 18, 837 N.W.2d at 694. This is to be contrasted with an independent
insurance agent, who is the agent of the insured, not the insurer. See Genesee Foods
Servs., Inc. v. Meadowbrook, Inc., 279 Mich. App. 649, 654, 760 N.W.2d 259, 262
(2008).
268. Zaremba Equip., Inc., 302 Mich. App. at 18, 837 N.W.2d at 694 (quoting Harts v.
Farmers Ins. Exch., 461 Mich. 1, 1011, 597 N.W.2d 47, 52 (1999)).
269. Zaremba Equip., Inc., 302 Mich. App. at 18, 837 N.W.2d at 694.
270. Id. at 20, 837 N.W.2d at 695.
271. Id. at 2031, 837 N.W.2d at 695701.
272. Id. at 3133, 837 N.W.2d at 70102.
BUSINESS ASSOCIATIONS
MICHAEL K. MOLITOR
I. STATUTORY CHANGES DURING SURVEY PERIOD ............................. 838
A. Crowdfunding Legislation ......................................................... 838
B. Professional Entities Providing Accounting Services................ 847
C. Definition of Equity Shares for Purposes of Chapter 7A of
the BCA.................................................................................... 848
II. REPORTED DECISIONS ...................................................................... 848
A. Woodbury v. Res-Care Premier, Inc.......................................... 848
B. Madugula v. Taub ...................................................................... 851
C. Shotwell v. Department of Treasury.......................................... 855
D. Other Cases ............................................................................... 859
III. NOTABLE UNPUBLISHED DECISIONS .............................................. 860
During the Survey period (June 1, 2013 to May 31, 2014), Michigan
state courts reported a few decisions concerning the law of business
associations, which are discussed in Part II below.1 There were also
several interesting unpublished decisions, which are discussed in Part III
below.
It was fairly quiet on the statutory front during the Survey period:
there were only a few amendments to the Michigan Business Corporation
Act (BCA)2 and one amendment to the Michigan Limited Liability
Company Act.3 There were no amendments to the Michigan Uniform
Partnership Act4 or the Michigan Revised Uniform Limited Partnership
Professor of Law, Western Michigan University Thomas M. Cooley Law School.
1. Recent Survey periods have also had small numbers of business law cases. See
James L. Carey & Justin G. Klimko, Amendments to Michigans Business Corporation
Act and Repeal of the Professional Service Corporation Act, 59 WAYNE L. REV. 1293
(2014) (discussing statutory amendments, but no cases, issued during June 1, 2012 to
May 31, 2013 Survey period); Evan J. Leibhan & Clara L. Seymour, Business
Associations, 57 WAYNE L. REV. 737 (2011) (discussing three reported decisions issued
during the June 1, 2010 to May 31, 2011 Survey period); Michael K. Molitor, Business
Associations, 56 WAYNE L. REV. 933 (2010) (discussing two reported decisions issued
during the June 1, 2009 to May 31, 2010 Survey period); Michael K. Molitor, Business
Associations, 56 WAYNE L. REV. 131 (2010) (discussing one reported decision issued
during the June 1, 2008 to May 31, 2009 Survey period).
2. MICH. COMP. LAWS ANN. 450.1101450.2099 (West 2015).
3. Id. 450.4101450.5200.
4. Id. 449.1449.48.
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it still had not done so.21 Impatient with this delay, Michigan and several
other states have implemented their own crowdfunding rules.22
21. The SEC proposed rules in November, 2013. See Crowdfunding, 78 Fed. Reg.
66427 (proposed Nov. 5, 2013), available at http://www.sec.gov/rules/proposed/2013/339470.pdf. As of May 2015, the proposed rules remain just thatproposed, but not final.
See also Steven D. Solomon, SECs Delay on Crowdfunding May Just Save It, N.Y.
TIMES DEALBOOK (Nov. 18, 2014, 2:56 PM), http://dealbook.nytimes.com/2014/11/18/se-c-s-delay-on-crowdfunding-may-just-save-it-2/?_r=0. Although the crowdfunding rules
under Title III of the JOBS Act havent been finalized, the SEC did adopt new rules
under Title IV of the JOBS Act in March 2015. Section 401 of Title IV of the JOBS Act
amended section 3(b) of the Securities Act to direct the SEC to adopt an exemption
allowing public offerings of up to $50 million (subject to periodic increases to be
determined by the SEC) of equity or debt securities in a 12-month period. Section 401
also provided, among other things, that securities sold pursuant to such an exemption
would not be restricted securities (which would make them easier for investors to
resell), that civil liability under section 12(a)(2) of the Securities Act would not apply to
such offerings (making issuers breathe easier), and that issuers may solicit interest in the
offering prior to filing any offering statement, on such terms and conditions as the [SEC]
may prescribe in the public interest or for the protection of investors (allowing issuers to
gauge potential interest in the offering before undertaking the time and expense of
undertaking the offering). Unlike Title III of the JOBS Act, however, Congress did not
specify any deadlines for implementation of these rules, leading some to think that they
would be a long time in coming.
In a surprise development, however, in late 2013, the SEC proposed rules to
implement section 401 (see Proposed Rule Amendments for Small and Additional Issues
Exemptions Under Section 3(b) of the Securities Act, 79 Fed. Reg. 3926 (proposed Jan.
23, 2014), available at http://www.sec.gov/rules/proposed/2013/33-9497.pdf) and
adopted final rules in March 2015 (see Amendments for Small and Additional Issues
Exemptions Under the Securities Act (Regulation A), 80 Fed. Reg. 21806 (Apr. 20,
2015), available at http://www.sec.gov/rules/final/2015/33-9741.pdf). Although this is
not the place for an extended discussion of the new rules (and the reader should
understand that any brief discussion of SEC rules will omit important details), a few
words are in order. The new rules, which have been dubbed Regulation A+, create two
tiers of offerings: Tier 1 allows U.S. or Canadian non-public issuers to sell up to $20
million in a 12-month period (including up to $6 million by existing security holders that
are affiliates of the issuer), and Tier 2 allows up to $50 million (including up to $15
million by existing security holders that are affiliates). Importantly, in Tier 2 offerings,
issuers will not be required to register the securities at the state level, but would be
subject to additional disclosure requirements such as audited financial statements and
annual reporting. In Tier 1 offerings, issuers may be able to take advantage of a multiplestate coordinated review process, which could also lessen the burden of state registration.
In Tier 2 offerings, non-accredited investors may not purchase securities worth more than
the greater of 10% of their annual income or 10% of their net worth. (These limits do not
apply to accredited investors, or to any investors in a Tier 1 offering.) Importantly,
neither tier has a prohibition on general advertising or general solicitation, which means
that offerings under Regulation A+ could be conducted as crowdfunding offerings
(although remember that the rules do contain detailed disclosure requirements not
discussed here). Obviously, there is much more to say about Regulation A+, but it will be
interesting to see how many issuers utilize it and how much capital is raised under it.
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amount is not met, the escrow agreement must provide that funds
will be returned to investors.42
The issuer must inform prospective investors that the
securities are unregistered and are subject to resale limitations on
transfer and must also provide a specified legend to that effect
conspicuously on the cover page of the disclosure statement.43
The issuer must also have each purchaser sign (and initial
each paragraph of) a document in which he or she certifies
various understandings, including (among other things) that: I
understand and acknowledge that . . . I am investing in a highrisk, speculative business venture. I may lose all of my
investment, and I can afford the loss of my investment.44
If the offering is made through a website, certain additional
requirements must be met by both the issuer and the websites
operator.45
The issuer may not, directly or indirectly, pay any
commission or remuneration to an executive officer, director,
managing member, or other individual who has a similar status
or performs similar functions in the name of and on behalf of the
issuer for offering or selling the securities unless he or she is
registered as a broker-dealer, investment adviser, or investment
adviser representative . . . .46
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clear safe harbor rules for determining whether the issuer is doing
business in the state55 and whether an offeree resides in the state.56 It
also provides for a nine month coming to rest period before securities
may be resold outside the state.57 Nonetheless, the Michigan invests
locally exemption gives issuers some additional guidance; for example,
it provides that certain facts are prima facie evidence that an individual is
a Michigan resident.58
As noted above, if the securities sold in an intrastate offering are
resold outside the state before the come to rest period has expired, the
offering may not be exempt under section 3(a)(11) and/or Rule 147,
which could expose the issuer to damages under (among other things)
section 12(a)(1) of the Securities Act.59 To help guard against this
possibility, many issuers require purchasers in intrastate offerings to
agree that they will not resell the securities outside the state until after
the period has expired.60 Of course, simply because a person has
contractually agreed to something does not mean that he or she will
actually abide by that agreement.
However, the document discussed above that each purchaser must
sign under the Michigan statute must contain this statement: If I resell
any of the securities I am acquiring in this offering to a person that is not
a Michigan resident, within 9 months after the closing of the offering, my
contract with the issuer for the purchase of these securities is void.61
Further, the statute provides that if one of the purchasers in the
crowdfunding exemption:
resells that security within 9 months after the closing of the
particular offering . . . to a person that is not a resident of this
state, the original investment agreement between the issuer and
the purchaser is void. If an agreement to purchase, or the
purchase of, a security is void under this subparagraph, the issuer
may recover damages from the misrepresenting offeree or
55. Id. 230.147(c)(2).
56. Id. 230.147(d).
57. Id. 230.147(e).
58. See MICH. COMP. LAWS ANN. 451.2202a(1)(b)(i) (West 2015).
59. 15 U.S.C.A. 77l(a) (West 2015). Among other things, this section imposes strict
liability on issuers (and certain others) that offer and sell unregistered securities without
having a valid exemption. A purchaser can generally recover rescissionary damages, i.e.,
the purchase price together with interest, less any income (e.g., dividends) that the
purchaser received as a result of owning the security.
60. Rule 147(f)(i) requires that issuers disclose the limitations on resale to investors.
See 17 C.F.R. 230.147 (2013).
61. MICH. COMP. LAWS ANN. 451.2202a(h).
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purchaser. These damages include, but are not limited to, the
issuers expenses in resolving the misrepresentation. However,
damages described in this subparagraph shall not exceed the
amount of the persons investment in the security.62
One tension between the state exemption and section 3(a)(11) and
Rule 147 may remain problematic, however. As noted above, the state
exemption allows the issuer to use websites in connection with the
offering, provided certain conditions are met. The SEC or a court,
however, could take the view that doing so means the issuer is making
offers to persons outside the applicable state and is thus in violation of
the requirement of section 3(a)(11) that all offers must be only to
residents of the applicable stateafter all, the Internet is available
worldwide. Nonetheless, in April 2014, the SEC posted new
Compliance and Disclosure Interpretations on its website.63 The
answer to new Question 141.04, which concerns using a third-party
portal in a crowdfunding offering, provides in part that [u]se of the
Internet would not be incompatible with a claim of exemption under
Rule 147 if the portal implements adequate measures so that offers of
securities are made only to persons resident in the relevant state or
territory and then goes on to specify those measures.64 Similarly, the
answer to new Question 141.05, which concerns whether an issuer may
use its own website or social media presence in connection with Rule
147, observes that using an established Internet presence to convey
information about specific investment opportunities would likely involve
offers to residents outside the particular state in which the issuer did
business.65 However, the answer does state in part that:
We believe . . . that issuers could implement technological
measures to limit communications that are offers [of securities]
only to those persons whose Internet Protocol, or IP, address
originates from a particular state or territory and prevent any
offers to be made to persons whose IP address originates in other
states or territories. Offers should include disclaimers and
62. Id. 451.2202a(1)(b)(iii).
63. Whats New in the Division of Corporation Finance: April 2014, U.S. SEC. &
EXCHANGE COMMISSION, http://www.sec.gov/divisions/corpfin/cfnew/cfnew0414.shtml
(last visited Feb. 10, 2015).
64. Compliance and Disclosure Interpretations: Securities Act Rules, U.S. SEC. &
EXCHANGE
COMMISSION,
http://www.sec.gov/divisions/corpfin/guidance/securitiesactrules-interps.htm#141-04
(last updated Jan. 23, 2015).
65. Id.
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66. Id.
67. See MICH. COMP. LAWS ANN. 450.1281(1), 450.4901(1), 450.4201. As noted
supra note 6, in early 2013, the Professional Service Corporation Act was repealed as a
separate statute and moved to chapter 2A of the BCA.
68. See id. 450.1288(1); see also id. 450.4904(1).
69. Id. 450.1284(5). In my opinion, section 284 of the BCA needs to be harmonized
with section 288 of the BCA, which provides that a PC may not issue any stock to an
individual who is not licensed in the applicable professional field.
70. Id. 450.4904(7).
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Less than a month later, however, Center Woods filed renewal-ofexistence papers with the state of Michigan,78 and then Center Woods
(along with Scott and Jeanne Woodbury, who owned the neighboring
property, #3 Center Woods) filed a lawsuit against Res-Care and
Averill seeking to prevent Res-Care from occupying the property.79
Ultimately, the trial court voided the sale, finding that Center Woods had
a right of first refusal to purchase the Property and that Ms. Averill had
failed to give it sufficient notice of the sale.80
On appeal, the court of appeals reversed.81 Because the agreement
required notice to be given to Center Woods, Inc. but that entity
technically did not exist when notice was required, the question became
what effect Center Woodss later reinstatement had on the notice
requirement.82 The plaintiffs argued that when Center Woods was
reinstated under section 925 of the Nonprofit Corporation Act,83 it was as
if the dissolution essentially never took place.84 Under that view,
Center Woods would have been in existence at the time notice was
required.85
The court of appeals, however, disagreed. After reviewing two prior
cases that involved similar issues, the court noted that neither of them
provides guidance in answering the question whether a party who is
required to provide notice of some event to the corporation, which has
ceased to exist for 16 years, could be deemed to have failed to properly
Id.
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give notice on the grounds that, sometime in the future, the corporation
might seek reinstatement.86 The court further noted:
It is not reasonable to require persons to give notice to a
nonexistent corporation on the contingent basis that at some
unknown time in the future, some unknown person might elect to
reinstate the corporation. Simply because someone can reinstate
a corporation under MCL 450.2925 does not mean anyone will.
And the law certainly should not require people to assume
otherwise. Indeed, some corporations that dissolve automatically
never seek reinstatement, even when they continue to do
business. Others fail to seek reinstatement even when attempting
to file suit in their own name.87
As a result, the court of appeals held that Center Woods was not
entitled to notice of the sale between Averill and Res-Care because
Center Woods did not exist at that time.88
The Michigan Supreme Court granted leave to appeal in 2012,
stating that the parties should address issues such as whether the de facto
corporation doctrine and/or the corporation-by-estoppel doctrine had
survived enactment of the Nonprofit Corporation Act.89 In 2013, the
supreme court ordered the parties to file supplemental briefs and invited
the Business Law Section, the Michigan Chamber of Commerce, and the
Department of Licensing and Regulatory Affairs to file amicus briefs
addressing additional issues such as whether section 925(2) of the
Nonprofit Corporation Act applies retroactively or prospectively;
whether renewal under section 925 permits an administratively dissolved
corporation to enforce contracts and rights not related to winding up; and
whether Bergy Brothers, Inc. v Zeeland Feeder Pig, Inc.90 had correctly
interpreted the analogous provision91 in the BCA.92 Although the
supreme court later delayed oral argument in the case due to a stipulation
by the parties, the attorney generals office sent a letter the [sic]
Supreme Court on October 9, 2013, on behalf of the [Corporations,
86. Id. at 244, 814 N.W.2d. at 317.
87. Id. at 249, 814 N.W.2d. at 31718 (footnotes omitted).
88. Id. at 251, 814 N.W.2d at 318.
89. Woodbury v. Res-Care Premier, Inc., 493 Mich. 881, 821 N.W.2d 888 (2012)
(citations omitted) (order granting leave to appeal).
90. 415 Mich. 286, 327 N.W.2d 305 (1982).
91. MICH. COMP. LAWS ANN. 450.1925 (West 2015).
92. Woodbury v. Res-Care Premier, Inc., 494 Mich. 879, 833 N.W.2d 330 (2013)
(order directing parties to file supplemental briefs); see also G. Ann Baker, Did You
Know?, 33 MICH. BUS. L.J., Fall 2013, at 5.
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corporation would have a five-person board, with Taub having the ability
to elect three directors and the other two shareholders having the ability
to elect one director each; and (3) approval by 70 percent of the shares
was necessary for material changes in the nature of the business,
compensation for the shareholders, or methods of determining
compensation for the shareholders.100
Flower later left the company, and Taub and Madugula each bought
some of his shares.101 Taub, however, remained the majority
shareholder.102 Some time later, with Dataspace allegedly struggling,
Taub switched the focus of Dataspace to marketing a new product that it
developed called JPAS, a software platform for jails.103 Madugula
argued that this was a material change from Dataspaces prior software
focus, but Taub claim[ed] that it was simply an attempt to market the
firms existing jail consulting products to other counties. At the time,
Madugula did not object to the new focus.104 Later in the same year,
Taub fired Madugula.105 Obviously, this meant that Madugula no longer
received a salary from Dataspace . . . .106 However, he remained a
director and shareholder (and even continued to receive dividends).107
Madugula later sued Taub for oppression under section 489 of the
BCA, among other causes of action.108 Taub filed a motion to have the
case heard in equity.109 He argued that Madugula did not have a right to a
jury trial for the oppression claim, relying on an unpublished court of
appeals opinion.110 The trial court disagreed and denied Taubs
motion.111 Eventually, a jury determined that Taub had oppressed
Madugula within the meaning of the statute, awarded Madugula nearly
$200,000 in damages, and also required Taub to buy Madugulas stock in
Dataspace for $1.2 million.112 Taub moved for a new trial, but the trial
100. Madugula, 496 Mich. at 69091, 853 N.W.2d at 7778. Note that such an
agreement would likely need to comply with section 489 of the BCA in order to be valid.
See MICH. COMP. LAWS ANN. 450.1489.
101. Madugula, 496 Mich. at 691, 853 N.W.2d at 78.
102. Id.
103. Id.
104. Id.
105. Id.
106. Id.
107. Id.
108. Id. at 692, 853 N.W.2d at 78.
109. Id. at 692, 853 N.W.2d at 79.
110. Forsberg v. Forsberg Flowers, Inc., No. 253762, 2006 WL 3500897 (Mich. Ct.
App. Dec. 5, 2006).
111. Magdula, 496 Mich. at 693, 853 N.W.2d at 79.
112. Id. at 693, 853 N.W.2d at 79.
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Id.
Magdula v. Taub, No. 298425, 2012 WL 5290285 (Mich. Ct. App. Oct. 25,
Madugula, 494 Mich. 862, 831 N.W.2d 235 (2013).
Id.
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147. Id. at 372, 853 N.W.2d at 420. As discussed supra note 128, however, the
Michigan Supreme Court vacated this part of the opinion, holding that the court of
appeals erred when it concluded that there was a material question of fact as to whether
Ms. Shotwell was a de facto officer. Shotwell v. Dept of Treasury, No. 150024, 2015
WL 1402168 (Mich. Mar. 25, 2015).
148. 305 Mich. App. at 37273, 853 N.W.2d at 42021.
149. 302 Mich. App. 59, 836 N.W.2d 898 (2013).
150. Id. at 6465, 836 N.W.2d at 902. Citing a prior case, the court ruled that apparent
authority is when:
the principal, by statements or conduct, places the agent in a position where he
appears with reasonable certainty to be acting for the principal, or without
interference suffers the agent to assume such a position, and thereby justifies
those dealing with the agent in believing that he is acting within his mandate,
an apparent authority results which replaces that actually conferred as the basis
for determining rights and liabilities.
Id. at 65, 836 N.W.2d at 902 (citation omitted); see also Wienhold v. Pearsall, No.
303635, 2013 WL 3198129, at *79 (Mich. Ct. App. June 25, 2013).
151. Bellevue, 302 Mich. App. at 64, 836 N.W.2d at 90102.
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whether the plaintiffs shares had been redeemed in 1992 or whether they
still existed.180
The trial court found for the corporation, reasoning that the
termination of the plaintiffs employment instantly terminated
[p]laintiffs status as a shareholder, creating an unconditional
obligation for [p]laintiff to transfer his shares to [d]efendant.181 Further,
because the plaintiffs stock had a negative value at that time, the trial
court found that there was no need for [d]efendant to write [p]laintiff a
check for zero to redeem the stock . . . .182 The court of appeals,
however, observed that:
The flaw with this conclusion is that it relies on the trial
testimony of . . . defendants former attorney, to value plaintiffs
shares in defendant, when the parties specifically established a
valuation procedure that was not used. Only after that procedure
was followed would it then have been between plaintiff and
defendant to decide whether any payment was warranted. The
bargained-for valuation procedure was substantially more
transparentproviding, if necessary, for three real-estate
appraisersthan the unsupported claims plaintiff received from
defendant, and plaintiff had a right to be secure in the knowledge
that his shares had no objective value.183
In sum, the plaintiffs stock had never actually been redeemed.184
The court thus reversed the trial courts opinion and remanded the case
with instructions to enter a judgment that the plaintiff was still a
shareholder of the defendant.185 One wonders what these shares were
worth in 2014. Even if the shares did have a negative fair market value in
1992, this case serves as a cautionary tale to carefully follow agreements,
even if doing so may seem like a waste of time.
In Wienhold v. Pearsall,186 the trial court held that a corporation was
neither a de jure corporation nor a de facto corporation because even
though its articles of incorporation had been properly filed in the state of
New York, it had never held any shareholder or director meetings and
had not issued any shares before the events in the case occurred.187 As a
180.
181.
182.
183.
184.
185.
186.
187.
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result, the trial court found two of the corporations officers personally
liable on a promissory note that had been signed in the corporations
name.188 The court of appeals correctly reversed, discussing the
corporation-by-estoppel theory, which holds that a person who deals with
an entity as a corporation will be estopped from later claiming that it was
not a corporation and that its officers or owners should therefore be
personally liable for its debts.189
Ward v. Idsinga190 involved many legal issues, but one interesting
aspect of the case was its discussion of the effect that a failure to follow a
corporations bylaws would have on a transaction. In the case, the
corporations bylaws provided that the shareholders could take action
without a meeting if the holders of a majority of the voting shares signed
a written consent resolution approving the action, as permitted by the
BCA.191 However, the bylaws also provided that, unless all of the
shareholders had been solicited to sign a written consent resolution,
prompt notice had to be given to the shareholders who had not signed the
consent resolution.192 Specifically, as to approvals [of transactions] (i)
in which a director has a financial interest, . . . notice of the approval will
be given at least 10 days before the consummation of any action
authorized by the approval.193
Simplifying the facts greatly, a transaction in which some of the
directors had a financial interest was approved by a written consent
resolution by the holders of a majority of the shares.194 However, the
corporation never sent the notice required by the bylaws to the other
shareholders.195 As a result, the court held that the transaction was
void.196 The case contains a very interesting discussion of how cases in
other jurisdictions have treated corporate transactions that were not
approved in accordance with statutes and/or a corporations articles or
bylaws, and when a director is deemed to have a financial interest in a
transaction.197
188. Id.
189. Id. at *10.
190. No. 302731, 2013 WL 4404246 (Mich. Ct. App. Aug. 15, 2013).
191. Technically, such a provision must be in the corporations articles, but I assume
that the corporation in Ward did have such a provision in its articles. See MICH. COMP.
LAWS ANN. 450.1407(1) (West 2015).
192. Ward, 2013 WL 4404246 at *4.
193. Id. at *4.
194. Id. at *12.
195. Id. at *13.
196. Id.
197. Id. at *38.
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207. Id. at *6 (citing Berger v. Mead, 129 Mich. App. 209, 215, 338 N.W.2d 919, 922
(1983)).
208. See Berger, 129 Mich. App. at 21516, 338 N.W.2d at 923.
GOVERNMENT LAW
PATRICIA PARUCH
I. INTRODUCTION .................................................................................. 867
A. Zoning and Land Use................................................................. 867
B. Municipal Finance ..................................................................... 877
C. Local Ordinance Preemption by State Law............................... 882
I. INTRODUCTION
This Article will focus on opinionsissued during the Survey
periodof some significance to the multiple local units of government in
Michigan (276 cities, 257 villages, and 1,240 townships), rather than
counties or state government. This Article will not discuss court
decisions in the area of public employee labor law, which followed the
enactment of Michigans right-to-work legislation in 2012, even though
those decisions are of significant importance to larger cities and state
government.1 Because almost all local units of government deal regularly
with issues involving zoning and land use; finance; and police powers to
protect public health, safety, and welfare; this Article will focus on those
topics.
A. Zoning and Land Use
The Michigan Supreme Court and the Michigan Court of Appeals
together issued three opinions of note during the Survey period
concerning a local unit of governments power and authority to regulate
private land uses through zoning and other ordinances. These three cases
involved relatively new interpretations of both constitutional rights as
they apply to a particular land use, as well as the authority of a
municipality to use its police power to protect the community.
The first of these cases dealt with a persistent public health and
safety issue in the context of private property rights. A number of local
governments in Michiganin both rural and urban areasstruggle to
Shareholder, Kemp Klein Law Firm. B.A., 1972, summa cum laude, University of
Detroit; J.D., 1992, Wayne State University.
1. See, e.g., UAW v. Green, 302 Mich. App. 246, 284, 839 N.W.2d 1, 21 (2013)
(holding that the new right-to-work statute applies to state employees).
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Enabling Act (ZEA)37 to prohibit the exclusion of any particular land use
within the municipality if there is a demonstrated need for the use.38
Occasionally the Michigan Legislature will further regulate the types
of zoning restrictions that can be placed on a particular use. For example,
in 2012 the Legislature adopted amendments to the ZEA to regulate the
siting and operation of mineral mines, including gravel pits.39 The
amendments allow a prospective mineral developer to overcome a local
zoning prohibition on mine development by demonstrating that the
property at issue contains valuable mineral deposits, a public need exists
for such minerals, and no very serious consequences would result from
the proposed mineral extraction process.40
The City of Wyoming adopted a zoning ordinance that was similarly
restrictive in order to prevent marijuana use in the community.41 A
provision in the federal Controlled Substances Act (CSA)42 classifies
marijuana as a Schedule I controlled substance and largely prohibits its
manufacture, distribution, or possession.43 In 2008, Michigan voters
approved the Michigan Medical Marihuana Act (MMMA), which
immunizes certain patients from penalty in any manner for MMMAcompliant medical marijuana use.44 Two years later, the City of
Wyoming amended its zoning ordinance to include the provision:
[U]ses not expressly permitted under this article are prohibited in all
districts. Uses that are contrary to federal law, state law or local
ordinance are prohibited.45
The plaintiff in the subsequent lawsuit, a City of Wyoming resident,
is a qualifying patient under the MMMA and possesses a state-issued
marijuana registry identification card.46 The plaintiff sought a declaratory
judgment from the circuit court that the MMMA preempts the ordinance
and sought a preliminary injunction prohibiting ordinance enforcement.47
The circuit court held that the MMMA is preempted by the CSA.48 The
court of appeals reversed, holding that the ordinance is preempted by the
686 N.W.2d 815 (2006) (billboards); Kyser v. Kasson Twp., 278 Mich. App. 743, 755
N.W.2d 190 (2008), revd, 486 Mich. 514, 786 N.W.2d 543 (2010) (mining).
37. MICH. COMP. LAWS ANN. 125.3101125.3702 (West 2015).
38. Id. 125.3207.
39. 2012 Mich. Pub. Acts 389.
40. MICH. COMP. LAWS ANN. 125.3205.
41. WYOMING, MICH., CODE OF ORDINANCES 90-66 (1997).
42. Controlled Substances Act, 21 U.S.C.A. 801971 (West 2014).
43. Id. 812(c)(c)(10).
44. MICH. COMP. LAWS ANN. 333.26424(a).
45. WYOMING, MICH., CODE OF ORDINANCES 90-66 (1997).
46. Ter Beek v. City of Wyoming, 495 Mich. 1, 6, 846 N.W.2d 531, 534 (2014).
47. Id. at 67, 846 N.W.2d at 534.
48. Id. at 7, 846 N.W.2d at 534.
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of immunity.58 By enjoining a patient from engaging in MMMAcompliant conduct, the ordinance proscribes such a prohibited penalty
and is preempted by the MMMAs grant of immunity.59
In another case involving whether a local ordinance is preempted by
state law, a local gasoline service station with an attached convenience
store in Bloomfield Township applied to the Michigan Liquor Control
Commission (LCC) for a license to sell beer and wine for off-premises
consumption.60 Under state law, the LLC cannot prohibit an applicant for
such a license from owning fuel pumps as long as the pumps are at least
fifty feet from where the customers purchase alcohol.61 In this case, the
pumps were forty-seven feet from the cash registers, and the township
denied the request for a license.62 During the litigation which followed,
the township amended its zoning ordinance to include the following
standards: (1) alcohol sales must be at least fifty feet from the pumps; (2)
no drive-through operations; (3) minimum floor area and lot size
requirements; (4) the store must have frontage on a major thoroughfare
and not be adjacent to a residentially zoned area; (5) no vehicle service
with customer waiting areas are allowed; and (6) the store must either be
in a shopping center or maintain a certain amount of inventory.63 The
trial court granted the townships motion for summary disposition based
on the amended ordinance.64
The plaintiff-service station owner argued that state law gives the
LCC exclusive control over the sale of alcoholic beverages, and
therefore, the state law preempts the townships zoning regulations.65
The court of appeals disagreed.66 The court reasoned that state law
preempts a local regulation if (1) the local regulation directly conflicts
with a state statute, or (2) the state statute completely occupies the field
of regulation.67 In arguing that state law completely occupies the field of
alcohol regulation, the plaintiff relied on a Michigan Supreme Court
opinion from 1986, which held that a local ordinance that required an
applicant to obtain both a state license and a local license to sell alcohol
at outdoor dancing events was preempted because the court could find no
58. Id. at 20, 846 N.W.2d at 541.
59. Id.
60. Maple BPA, Inc. v. Bloomfield Charter Twp., 302 Mich. App. 505, 508, 838
N.W.2d 915, 918 (2013).
61. MICH. COMP. LAWS ANN. 436.1541(1)(b) (West 2015).
62. Maple BPA, 302 Mich. App. at 509, 838 N.W.2d at 919.
63. BLOOMFIELD TWP., MICH., CODE OF ORDINANCES 42-4.23 (2014).
64. Maple BPA, 302 Mich. App. at 510, 838 N.W.2d at 919.
65. Id. at 511, 838 N.W.2d at 920.
66. Id. at 511, 838 N.W.2d at 919.
67. Id.
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provision in state law that would allow a municipality to regulate the sale
of alcohol at outdoor dancing events.68
The court of appeals distinguished the Sherman Bowling decision by
reasoning that unlike the ordinance in Sherman Bowling, the Bloomfield
Township ordinance is a zoning ordinance, and LCC regulations
specifically require that all applicants meet zoning ordinance
requirements.69 The court cited a later case that concluded that the
Legislature did not intend to preempt the field of liquor control and that
local units of government have extremely broad powers to regulate
alcohol traffic within their communities as an exercise of their police
power.70
The court of appeals further held that the Bloomfield Township
ordinance did not directly conflict with state law.71 The legal standard
cited by the court of appeals was that a direct conflict exists . . . when
the local regulation permits what the state statute prohibits or prohibits
what the statute permits.72 The court of appeals noted that the state law
is silent on the issues of drive-through windows, minimum building area,
or the number of parking spaces needed.73 To the extent that the
Legislature has expressly spoken on this issue, Bloomfield Townships
zoning ordinance is not more restrictive.74 As such, the amended
ordinance did not conflict with state law.75
A fourth land use case concerns the authority of a municipality to
classify certain lands under a zoning ordinances classification scheme
and the constitutional limitations on that authority. The plaintiff
landowners in Grand/Sakwa of Northfield, LLC v. Northfield Township76
owned 220 acres of farmland zoned AR (Agriculture District).77
Developer and co-plaintiff Grand/Sakwa executed an agreement to
purchase the property for a development of 450 homes and petitioned the
township to rezone the property to a single-family residential
classification (SR-1), which would allow four dwellings per acre.78 The
68. Id. at 512, 838 N.W.2d at 920 (citing Sherman Bowling v. Roosevelt Park, 154
Mich. App. 576, 58485, 397 N.W.2d 839, 843 (1986)).
69. Id. at 512, 838 N.W.2d at 92021.
70. Id. at 513, 838 N.W.2d at 921 (citing Jott, Inc. v. Charter Twp. of Clinton, 224
Mich. App. 513, 544, 569 N.W.2d 841, 854 (1997)).
71. Id. at 514, 838 N.W.2d at 921.
72. Id. at 514, 838 N.W.2d at 921 (citing McNeil v. Charlevoix Cnty., 275 Mich.
App. 686, 697, 741 N.W.2d 27, 34 (2007)).
73. Id. at 514, 838 N.W.2d at 922.
74. Id. at 51415, 838 N.W.2d at 922.
75. Id. at 515, 838 N.W.2d at 922.
76. 304 Mich. App. 137, 851 N.W.2d 574 (2014).
77. Id. at 139, 851 N.W.2d at 577.
78. Id. at 13940, 851 N.W.2d at 577.
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but limited the density in order to promote the general welfare of the
township.99
As to the second Penn Central factor, the trial court concluded that
the plaintiff was not denied all use of those pre-existing [property]
rights.100 The only preexisting rights to development were those that
existed under the AR zoning classification, the classification that was in
place at the time the developer bought the land.101 By changing the
zoning to LR, the township actually expanded those rights.102
The court of appeals noted that, as to the third Penn Central factor
interference with distinct investment-backed expectations, [a] claimant
who purchases land that is subject to zoning limitations with the intent to
seek a modification of those limitations accepts the business risk that the
limitations will remain in place or be only partially modified.103 In this
case, plaintiffs admitted that they knew that the zoning change to SR-1
was going to be challenged by the referendum and that the
reclassification would not take effect at all if the referendum was
successful.104 The court of appeals concluded that since they knew the
referendum effort was underway, they could not argue that their
expenditure of development funds and expectation that the development
would be built while the referendum was pending was reasonable.105
Because all three Penn Central factors weighed in the townships favor,
the court of appeals agreed with the trial court that the rezoning to LR
did not constitute a regulatory taking.106
B. Municipal Finance
As the financial health of a number of Michigan municipalities has
declined due to state funding reductions and slow growth in property tax
revenues, a number of jurisdictions have expanded the use of user fees to
fund certain services.107 This practice has increased after Michigan voters
approved the amendment to the Michigan Constitution, known as the
99. Id. at 147, 851 N.W.2d at 581.
100. Id. at 148, 851 N.W.2d at 582 (alteration in original) (citing Penn Cent., 438 U.S.
at 11517, 137).
101. Id.
102. Id.
103. Id. at 151, 851 N.W.2d at 583.
104. Id. at 152, 851 N.W.2d at 58384.
105. Id. at 152, 851 N.W.2d at 584.
106. Id. at 15253, 851 N.W.2d at 584.
107. SEMCOG, STATE AND LOCAL GOVERNMENT FINANCING OF ESSENTIAL SERVICES
WITH
USER
FEES
(2005),
available
at
http://library.semcog.org/InmagicGenie/DocumentFolder/Financing%20Govt%20Service
s%20with%20Fees.pdf.
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880
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127.
128.
129.
130.
131.
132.
133.
134.
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883
Home Rule Cities Act gave cities police powers that they could exercise
broadly.154 Instead, the Lennane court held that cities possessed only a
very narrow scope of inherent police powers and only those other powers
that are expressly delegated by the Constitution or legislature of the
state.155 Because neither the Home Rule Cities Act nor the 1908
Constitution gave cities the specific authority to adopt ordinances
governing wages and benefits, the Lennane court concluded that the City
of Detroit had no authority to approve a prevailing wage ordinance.156
The Lennane court also suggested that a city may adopt a public
policy on matters of local and municipal concern, but not matters of
state concern.157 In commenting on this decision, the court of appeals
panel in Associated Builders noted that:
absent from the Courts decision was any discussion as to why
the setting of wage rates was a matter of state concern. Further,
the Court provided little analysis and cited no authority for its
conclusion that the setting of wage rates was a matter of state
concern into which the city could not intrude.158
Almost eighty years later, the court of appeals concluded that the
Lennane holding was inapplicable to the Lansing ordinance because the
reasoning employed in Lennane has subsequently been rejected by
amendments to our Michigan Constitution and by changes in our
caselaw.159 The court of appeals noted that the Michigan Constitution
adopted in 1963 is much more liberal in its interpretation of the
authority granted to cities.160 Specifically, the 1963 Constitution states
that [n]o enumeration of powers granted to cities and villages in this
constitution shall limit or restrict the general grant of authority conferred
by this section.161 Relying on this language and citing numerous cases,
the court of appeals noted that Michigan courts have consistently
recognized the broad grant of authority given to cities162 and that this
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maybe even some not so young lawyers make. So thats what I did. And
he said for the evening lecture, Why dont you talk about the state of the
legal profession and being a trial lawyer, what life as a trial lawyer is like
as you see it from the bench. That seemed a pretty tall order to me
because in the Sturm und Drang of life on the trial bench, I usually dont
get to take a step back and reflect upon such big picture thoughts. Im
usually asked to talk about things like evidence and the nuts and bolts of
trial advocacy in the courts. But as I thought about it I thought maybe I
might be able to share some ideas about life in the trenches, the life of a
trial lawyer in this highly competitive, highly stressful, and highly
challenging legal environment because I do talk with lawyers about their
practice, about their careers, and I get to see up close and personal in real
time what its like to be a trial lawyer and how difficult it is. So I thought
I might be able to share some thoughts about that, and I often talk with
students who are on the threshold of a career in law but who perhaps are
struggling a bit with whether or not they have chosen the right career;
maybe they are having some second thoughts. So thats where Id like to
begin this evening, with questions I get from students and lawyers about
what a life in the law is like and what life in the practice of law in the
trial courts is like. Rather than trying to impart sophisticated ruminations
about the great issues of jurisprudence or constitutional philosophy,
maybe the most helpful thing I can do here this evening is to try to
provide some practical advice about how to live your life as a lawyer and
to be the best lawyer you can be. And since Im a trial judge and an
adjunct professor rather than an appellate judge or full-fledged academic,
maybe thats what Im best suited for. And in sharing thoughts about this
tonight, I think Im largely going to try to have a conversation with the
lawyers who are here and with the students who are here and soon to be
lawyers. Im going to try to have a direct kind of conversation with you
folks.
Given the uncertain and challenging economic environment in our
profession, its perhaps not surprising that students often ask me about
the future of law as a career and whether there are too many lawyers in
our society. Students come up to me all the time and say words to the
effect of: Do you think Im on the right path? I hear its really hard to
get a job. Do we have too many lawyers in our society? Although the
challenges are greater now than when I graduated 35 years ago, and the
opportunities may be harder to come by; my answer is really the same as
it has always been. I think there are too many indifferent and
uncommitted lawyers; there are not enough good lawyers who are
dedicated and committed to the profession and passionate about what
they are good at in the way that I. Goodman Cohen was. Every so often
2015]
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lawyers who have been practicing for a while will stop by my chambers,
and well talk, and they will essentially say that they are feeling burned
out, they are stressed out, and their career is not as rewarding as they had
hoped it was going to be, that they feel like they are just treading water
and going through the motions. Invariably, my reaction is to wonder how
much these lawyers are really putting into it themselves and how much
they are really putting into their work because I do see a lot of lawyers
who are going through the motions, taking short cuts, or in sports jargon,
just mailing it in. It is said that the law is a jealous mistress, and that
certainly is true, but the full quotation from U.S. Supreme Court Justice
Joseph Story is even more true. Heres the full quotation: The law is a
jealous mistress, and requires long and constant courtship. It is not to be
won by trifling favors, but by lavish homage. No matter what your
practice is there will be times in your legal career when you will be
challenged to work beyond what you believe are your limits; when you
will be tempted to take shortcuts and to put forth less than your best
effort. No doubt, many of you here tonight have experienced this during
your years of practice, and even for our students, maybe you have
experienced this during your time in law school. You know that its hard
to push through those challenging breaking points that you reach, and I
suppose there are some successful lawyers who maybe make it look easy,
make it look like they are not breaking a sweat, but my experience is
different. My experience is that behind every successful trial lawyer,
every accomplished lawyer, is a trail of blood, toil, tears, and sweat.
Putting it simply, there are no shortcuts to becoming a good lawyer. My
father was a guy who was enamored of maxims and adages and homilies
that reflected his approach to life and which he liked to impart to his
three boys. I remember one in particular from my earliest years because
he repeated it with a frequency that seemed like a phonograph needle
stuck in the groove. It was, Once a task is once begun never leave it till
its done. Be of labor great or small do it well or not at all. My dad
passed away a few years ago, but I can still hear his voice echoing and
resonating, and I confess I have internalized it. My wife Lori who is here
tonight says that Im compulsive; I plead guilty to that. But my response
is: show me a successful person who is not at least a little bit compulsive
about what they are doing. If you begin to take shortcuts, if you begin to
mail it in, in the short run you may only be cheating your clients or
your colleagues or maybe a judge. But over the long term the only one
you are really short-changing is yourself because in the end your career
in the law will only be as successful and rewarding as what you put into
it. The degree of professional satisfaction and reward that you will
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obvious. Even if no one is looking, and even if you believe the breaches
might be small once you begin down that path of taking a breezy
approach to your professional responsibilities, you will inevitably and
ineluctably find yourself sliding down the proverbial slippery slope to the
point where not only can you not get back up, but you wont be able to
recognize where the high ground is. Weve seen it happen all too often in
our society. But one thing of which you can be sure: your fellow
practitioners, your colleagues, and judges, they will recognize that you
struggle to find your ethical bearings, and they will not only remember
that, but that will become your reputation in the profession. And like
indelible ink, this will be a stain not easily removed. Not all of us have a
Bobby Jones moment. But your reputation and your profession is your
calling card. Guard it diligently and do not permit it to become an alarm
bell for other lawyers and judges.
Id like to end where I began before we get to question time. Having
talked about the importance of a strong work ethic and professional
integrity, I must say that in some senses I feel like Im preaching to the
converted here at Wayne Law because so many in our Wayne Law
family have already demonstrated their mettle in these two important
areas. I believe that Waynes graduates are well prepared to meet the
challenges of todays legal world, and Im really very proud of my long
association with this great institution and the faculty and now with the
great tradition of the I. Goodman Cohen lecture series. This is a great
school. Those of you who are graduating or about to finish your studies
here, youll have endless opportunities. And to be a Wayne Law graduate
will open many doors for you. Just remember as you walk through those
doors that you stand on the shoulders of others who have gone before
you and established the great reputation of this school. So always give it
your best shot, whether its 12:00 at night and youve still got a stack of
documents to go throughor I guess a computer screen full of
documentsalways give it your best shot and do it the right way.
Thank you all.
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one man and one woman.3 The case, United States v. Windsor, was
embroiled in heated political debate between supporters and opponents
of same-sex marriage,4 but beneath all of the politics was an interesting
legal issuedid the Court actually have the authority to hear the case?5
Compared to the due process issue of the case, the jurisdiction issue may
seem unimportant, but such a thought could not be further from the truth.
The issue of whether the Supreme Court had jurisdiction to hear the
case not only has major separation of powers implications,6 but also calls
into question whether the Court should eagerly step into heated political
issues, as it did here.7 This Note will explore these considerations and
argue that in finding that it had authority to hear United States v.
Windsor, the Supreme Court overstepped both its Article III
constitutional authority8 and the prudential jurisdiction limits that the
Court has voluntarily placed on itself.9
II. BACKGROUND
A. Case or Controversy Clause
At the heart of this issue is the Case or Controversy Clause of the
United States Constitution. The relevant portion of this clause states,
The judicial Power shall extend to all Cases, in Law and Equity, arising
under this Constitution, the Laws of the United States . . . to
Controversies to which the United States shall be a Party . . . .10 At the
district court level, the case or controversy requirement is met if the
issue(s) presented to the court are done so in an adversary context and
can be resolved by the judicial system.11 If this requirement is not met,
2. Defense of Marriage Act, 1 U.S.C.A. 7 (West 2014).
3. United States v. Windsor, 133 S. Ct. 2675, 2683 (2013) (quoting 1 U.S.C.A. 7).
4. See Live Analysis of the Supreme Court Decisions on Gay Marriage, N. Y. TIMES,
http://projects.nytimes.com/live-dashboard/2013-06-26-supreme-court-gay-marriage (last
updated June 26, 2013, 4:36 PM).
5. Windsor, 133 S. Ct. at 2684 (It is appropriate to begin by addressing whether
either the Government or BLAG, or both of them, were entitled to appeal to the Court of
Appeals and later to seek certiorari and appear as parties here.). This Note purposefully
makes no statement regarding support or opposition against same-sex marriage; such
statements tend to bias readers and have a clouding effect on the legal arguments
discussed.
6. See infra Part III.D.1.
7. See infra Part III.D.2.
8. See infra Part III.B.1.
9. See infra Part III.B.2.
10. U.S. CONST. art. III, 2, cl. 1.
11. Flast v. Cohen, 392 U.S. 83, 95 (1968).
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the court cannot hear the case.12 The case or controversy requirement
applies during the entire life of the case, including on appeal.13
In Camreta v. Greene, the Supreme Court laid out what is necessary
for an appeal to meet the requirements of the Case or Controversy
Clause.14 First, litigants must have a personal stake in the suit;15 in
order to have such a stake in the litigation, [t]he petitioner must show
that he has suffered an injury in fact that is caused by the conduct
complained of and that will be redressed by a favorable decision.16
The respondent must also have an ongoing interest in the case in order
to meet the requirements of Article III.17
The Court noted in Camreta that even though the petitioner had won
in courts below, he still showed injury, causation, and redressability,
and the injury could only be remedied by overturning the ruling on
appeal[.]18 While the petitioner had prevailed on procedural grounds of
qualified immunity, he would still have to change how he performed his
job in order to avoid future liability, meaning that he was effectively still
injured, and only a ruling in his favor, on the merits, could remedy that
injury.19 Because there was still adverseness between the parties,20 and
the petitioner had an injury that could only be remedied by a further
appeal, the Court held that Article III did not bar it from adjudicating the
case.21
B. Prudential Limitations on Jurisdiction
In addition to the Case or Controversy Clause, the Supreme Court
has established prudential limitations on jurisdiction. In Deposit
Guaranty National Bank, Jackson, Mississippi v. Roper, the Supreme
Court noted that typically, only a party aggrieved by a judgment or
order of a district court may exercise the statutory right to appeal[.]22
While the United States Supreme Court has not laid out an explicit test
for what makes one an aggrieved party, the Connecticut Supreme
Court applies a two-prong test: (1) does the allegedly aggrieved party
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
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standing issue at the district court level, because there was still a
justiciable controversy between the parties; up through this point, all of
the parties agreed.66
However, the parties and Jackson diverged from their consensus on
the standing issue when the Supreme Court reached the issue as
applicable to the court of appeals.67 Jackson argued that once the
President and Department of Justice agreed with Windsor from a legal
standpoint, there was no longer any adversity, and the United States was
a prevailing party below; thus the court of appeals should have
dismissed the appeal, and the Supreme Court should have denied
certiorari.68
The Court disagreed with Jackson, noting a distinction between the
principles of the jurisdictional requirements of Article III and the
prudential limits on its exercise, characterizing the latter as essentially
matters of judicial self-governance.69 The Court stressed that the two
must be distinguished; Article III applies the Case or Controversy
Clause, while prudential standing is merely judicially self-imposed
limits on the exercise of federal jurisdiction.70 According to the Court,
Article III jurisdiction was satisfied because the United States had been
ordered to pay Windsor, resulting in a real and immediate economic
injury.71 The Court noted that it did not matter if the executive branch
would be happy with the ruling; as long as the government was paying
money to Windsor, the United States was an injured party.72
The Court went on to analyze Chadhalikening Windsor to itand
addressed the issue of Article III jurisdiction.73 The Court concluded its
analysis of Chadha by saying:
The necessity of a case or controversy to satisfy Article III was
defined as a requirement that the Courts decision will have real
meaning . . . . This conclusion was not dictum. It was a
necessary predicate to the Courts holding that prior to
Congress intervention, there was adequate Art. III adverseness.
The holdings of cases are instructive, and the words of Chadha
make clear its holding that the refusal of the Executive to
66. Id. at 2685.
67. Id.
68. Id.
69. Id. (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)).
70. Id. (citations omitted) (internal quotation marks omitted).
71. Id. at 2686 (quoting Hein v. Freedom From Religion Found., Inc., 551 U.S. 587,
599 (2007)).
72. Id.
73. Id.
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901
902
[Vol. 60:891
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903
97.
98.
99.
100.
101.
102.
103.
104.
105.
106.
Id. at 270001.
Id. at 2701 (emphasis omitted).
Id.
Id.
Id. at 270102.
Id.
Id. at 2703.
Id. at 271112 (Alito, J., dissenting).
Id. at 2712.
Id. at 271213 (quoting INS v. Chadha, 462 U.S. 919, 940 (1983)).
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905
III. ANALYSIS
A. The United States Was Not an Aggrieved Party Under the Case or
Controversy Clause
Because the United States, through the Department of Justice, had
already received all that it wanted from the district court, the Supreme
Court should have held that it (and the Second Circuit Court of Appeals)
did not have jurisdiction to hear the Governments appeal. The
Government was correct in arguing that it met the Article III injury
requirement.117 The Government was injured by (1) the lower courts
requirement that it pay Windsor the tax refund,118 (2) the invalidation of
DOMA,119 and (3) the preclusion of enforcement of DOMA that would
have taken place sans the lower courts decision.120 The Government was
also correct in asserting that the lower courts caused those injuries and
that they would be redressed by reversal of those decisions;121
however, a reversal of those decisions would not be a favorable
decision.122 The American Heritage Dictionary defines favorable as
[g]ranting what has been desired or requested: a favorable reply.123
Because the Solicitor General, arguing for the Government on the merits
of the case, concluded his brief to the Supreme Court by saying that the
judgment of the court of appeals should be affirmed,124 it is quite clear
117. Brief for the United States on the Jurisdictional Questions at 1819, Windsor, 133
S. Ct. 2675 (No. 12-307), 2013 WL 683046.
118. See Franchise Tax Bd. of Cal. v. Alcan Aluminum Ltd., 493 U.S. 331, 336 (1990)
(holding that actual financial injury is sufficient to establish Article III standing).
119. See Maine v. Taylor, 477 U.S. 131, 13637 (1986) (holding that conclusive
adjudication that [a statute] is unconstitutional gives a state a substantial stake in the
case sufficient to establish Article III standing).
120. See id. (holding that a State clearly has a legitimate interest in the continued
enforceability of its own statutes, sufficient to establish Article III standing); see also
City of Erie v. Paps A.M., 529 U.S. 277 (2000) (holding that a municipality precluded
from enforcing an ordinance on constitutional grounds has Article III standing).
121. Brief for the United States on the Jurisdictional Questions, supra note 117, at 19.
122. See supra note 16 and accompanying text.
123. The American Heritage Dictionary, HOUGHTON MIFFLIN HARCOURT PUBLISHING
CO.,
http://www.ahdictionary.com/word/search.html?q=favorable&submit.x=42&submit.y=24
(last visited March 17, 2015) (The full list of definitions is 1. Advantageous; helpful:
favorable winds. 2. Encouraging; propitious: a favorable diagnosis. 3. Manifesting
approval; commendatory: a favorable report. 4. Winning approval; pleasing: a favorable
impression. 5. Granting what has been desired or requested: a favorable reply. 6.
Indulgent or partial: listened with a favorable ear. The fifth definition is the most
applicable to the phrase favorable decision.).
124. Brief for the United States on the Merits Question at 54, United States v.
Windsor, 133 S. Ct. 2675 (No. 12-307), 2013 WL 683048.
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could have done so without the intervention of the court. If both parties
agree entirely on the outcome, there is no controversy, and there is no
need for a case. Because the Government could not remedy its injury
through its desired outcome, both the Ninth Circuit and Supreme Court
lacked Article III jurisdiction, and the Court should have held as such.
B. Prudential Limitations on Jurisdiction Also Should Have Barred the
Court from Hearing the Case
A general prudential rule in the United States judicial system is that a
party may not appeal a decision in its favor.139 This is the Deposit
Guaranty rule that only an aggrieved party has a right to appeal, and as
the Court in Deposit Guaranty pointed out, this is a prudential rule
created by the courts that limits jurisdiction, not a constitutional rule.140
The Court established this general rule so that courts could better allocate
resources to cases that actually warranted appellate review.141 To fully
understand the Deposit Guaranty rule, a review of the cases leading up to
its creation is warranted. The rule was based on the holding in Electrical
Fittings Corp. v. Thomas & Betts Co., where the Court said, A party
may not appeal from a judgment or decree in his favor, for the purpose of
obtaining a review of findings he deems erroneous which are not
necessary to support the decree.142 The Electrical Fittings holding was
139. See Dalle Tezze v. Dir., Office of Workers Comp. Programs, U.S. Dept of
Labor, 814 F.2d 129, 133 (3d Cir. 1987) (citing Pub. Serv. Commn v. Brashear Freight
Lines, Inc. 306 U.S. 204 (1939)) ([A] party has no right to appeal from a favorable
judgment.); see also Byron v. Clay, 867 F.2d 1049, 1050 (7th Cir. 1989) ([Y]ou cant
appeal from a judgment entirely in your favor.).
140. Deposit Guar. Natl Bank, Jackson, Miss. v. Roper, 445 U.S. 326, 33334 (1980)
(Ordinarily, only a party aggrieved by a judgment or order of a district court may
exercise the statutory right to appeal therefrom. A party who receives all that he has
sought generally is not aggrieved by the judgment affording the relief and cannot appeal
from it. The rule is one of federal appellate practice, however, derived from the statutes
granting appellate jurisdiction and the historic practices of the appellate courts; it does
not have its source in the jurisdictional limitations of Art. III. (citations omitted)).
141. Camreta v. Greene, 131 S. Ct. 2020, 2030 (2011) (As a matter of practice and
prudence, we have generally declined to consider cases at the request of a prevailing
party, even when the Constitution allowed us to do so. Our resources are not well spent
superintending each word a lower court utters en route to a final judgment in the
petitioning partys favor. (citations omitted)).
142. Elec. Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 242 (1939) (The Court
went on to say, But here the decree itself purports to adjudge the validity of claim 1, and
though the adjudication was immaterial to the disposition of the cause, it stands as an
adjudication of one of the issues litigated. We think the petitioners were entitled to have
this portion of the decree eliminated, and that the Circuit Court of Appeals had
jurisdiction, as we have held this court has, to entertain the appeal, not for the purpose of
passing on the merits, but to direct the reformation of the decree. (footnotes omitted)).
2015]
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based on Lindheimer v. Illinois Bell Telephone Co., where the Court held
that a company could not appeal the ruling of a lower court simply
because it miscalculated the value of the companys property when the
value was not necessary for the court to reach the ruling that it did.143
Although the Lindheimer Court did not address Article III standing, it
appears as if the party met the requirements: (1) it was injured in that its
property was incorrectly valued, (2) by the lower court, and (3) it could
only be remedied by overturning that specific finding of fact.144 Even
though the petitioner seems to have met the Article III requirements, the
Court dismissed the appeal.145 The reason seems quite obvious
appellate courts should not waste their time on issues that are
insignificant to the trial courts ultimate decision, even if the party was
technically injured in some way.146
While the Supreme Court has not adopted a specific definition of
aggrieved, the Connecticut Supreme Courts definition fits well with
the history behind the Deposit Guaranty rule. The Connecticut rule
requires a specific, personal and legal interest in the subject matter of
the decision that has been specifically and injuriously affected by the
decision.147 In reading that rule, it only makes sense to require that there
be injury both to the personal and legal interest; to hear a case where
ones legal interest has not been injured does not make sense when
keeping in mind that the Supreme Court established the prudential rule to
ensure proper allocation of judicial resources.
In Windsor, while the Government correctly argued that it was
aggrieved due to being precluded from enforcing DOMA and having to
pay Windsor a tax refund,148 the Government lost this aggrieved status
when it relinquished its legal interest in the case by asking for the Second
Circuits decision to be upheld.149 The Second Circuit could not possibly
have injuriously affected the Governments legal interest if the
Government then went on to ask the Court to uphold that decision. It
143. Lindheimer v. Illinois Bell Tel. Co., 292 U.S. 151, 176 (1934) (The company
was successful in the District Court and has no right of appeal from the decree in its
favor. The company is not entitled to prosecute such an appeal for the purpose of
procuring a review of the findings of the court below with respect to the value of the
companys property or the other findings of which it complains.).
144. Id. at 176; see supra notes 1417 and accompanying text.
145. Lindheimer, 292 U.S. at 176.
146. See supra note 142.
147. See supra note 23 and accompanying text.
148. Brief for the United States on the Jurisdictional Questions, supra note 117, at 17
18 (Indeed, in some ways, the United States may be more aggrieved here than the INS
was in Chadha. The judgment not only precludes the United States from enforcing a
statute, but also requires the payment of more than $360,000 in federal Treasury funds.).
149. See supra note 124 an accompanying text.
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would make no sense for the Court to establish a rule to ensure efficient
allocation of court resources that allows a party to use court resources
just to achieve the same result that was achieved at the lower court.
The Windsor majority was also incorrect in relying on Chadha to
support its holding that prudential limitations did not bar the Court from
hearing the case. The majority focused on the fact that there was
adverseness between the parties because amici curiae were defending the
constitutionality of DOMA;150 however, a lack of adverseness was not
the issue. Reliance on Chadha was also problematic because similar to
its Article III jurisdiction analysis, the Court in Chadha made the same
mistake as the Court in Windsor; the Chadha Court should have held that
the INS was not an aggrieved party, because its legal interest was no
longer injuriously affected once it agreed with Chadha on the merits of
the case.151
For these reasons, the Windsor Court should not have heard the
appeal from the Government. Instead, it should have held that it, and the
Second Circuit, did not have standing to hear the appeal. Because BLAG
also petitioned for a writ of certiorari,152 the question would then arise
whether the Court could have ruled on the case had it granted BLAGs
petition.153
C. BLAG Would Not Have Had Standing Even if the Court Had Granted
Its Appeal
If the Court had considered the issue,154 it should have held that
BLAG did not have standing to intervene in the case, because BLAG
was not an injured party. Parties without Article III standing cannot
litigate in court.155 The Article III standing requirements are not met by
150. United States v. Windsor, 133 S. Ct. 2675, 2687 (2013).
151. See supra notes 14950 and accompanying text. Had the Chadha Court held this,
it still would have been proper to hear the appeal since Congress was a proper petitioner.
See infra notes 157158 and accompanying text. The Chadha Court should have held that
only Congress had standing to appeal.
152. Petition for a Writ of Certiorari, Windsor, 133 S. Ct. 2675 (No. 12-785), 2012 WL
6755143.
153. See Bipartisan Legal Advisory Group of the United States House of
Representatives v. Windsor, 133 S. Ct. 2885 (2013) (Petition for writ of certiorari to the
United States Court of Appeals for the Second Circuit denied.).
154. See Windsor, 133 S. Ct. at 2688 (For these reasons, the prudential and Article III
requirements are met here; and, as a consequence, the Court need not decide whether
BLAG would have standing to challenge the District Courts ruling and its affirmance in
the Court of Appeals on BLAGs own authority.).
155. Valley Forge Christian Coll. v. Ams. United for Separation of Church and State,
Inc., 454 U.S. 464, 47576 (1982).
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[Vol. 60:891
Representatives, not the Senate.165 For this reason, Justice Alitos first
objection to the applicability of Raines was incorrect.166 Justice Alito was
also incorrect in distinguishing Raines from Windsor on the grounds that
the congressional members in Raines were not the pivotal figures whose
votes would have caused the Act to fail absent some challenged
action.167 In Windsor there simply was no vote to repeal DOMA, so the
issue of whose votes were sufficient was irrelevant. Because BLAG
spoke only for one chamber of Congress and had only an abstract injury
due to the pending invalidation of DOMA, if the Court had needed to
address the issue, it should have held that BLAG did not have standing to
intervene.
D. Why Does the Jurisdiction Issue Matter?
1. The Constitutional Issue
The Courts most significant error in the Windsor case was in finding
that the Case or Controversy Clause did not bar the Court from hearing
the case. As the Court noted in Allen v. Wright, The case-or-controversy
doctrines state fundamental limits on federal judicial power in our system
of government.168 The limitation placed on the judiciary by the Clause is
two-fold: it limits the federal courts to hearing questions presented in an
adversary context that can be resolved by the judiciary, and it define[s]
the role assigned to the judiciary in a tripartite allocation of power to
assure that the federal courts will not intrude into areas committed to the
other branches of government.169 The mere fact that the majority
thought that it was correctly resolving an important issue does not mean
165. Even BLAGs representation of the House of Representatives was shaky, at best.
In 2011, BLAG voted to recommend that counsel be retained to conduct DOMA
litigation on behalf of the BLAG, not on behalf of the House of Representatives. Chris
Geidner, House Republicans Vote to Defend DOMA in Court on Party Line 3-2 Vote,
METRO
WEEKLY
(Mar.
9,
2011,
6:14
PM),
http://www.metroweekly.com/poliglot/2011/03/house-republicans-vote-to-defe.html. It
was not until early 2013, nearly a month after the Court had granted certiorari, that the
House of Representatives voted to give BLAG the authority to speak for the entire House
in front of the Supreme Court. Chris Johnson, House Approves Rules Affirming
Commitment
to
DOMA,
WASHINGTON
BLADE
(Jan.
4,
2013),
http://www.washingtonblade.com/2013/01/04/house-approves-rules-affirmingcommitment-to-doma/.
166. See supra note 113 and accompanying text.
167. See supra note 114.
168. Allen v. Wright, 468 U.S. 737, 750 (1984), abrogated on other grounds by
Lexmark Intl, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014).
169. Flast v. Cohen, 392 U.S. 83, 95 (1968).
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IV. CONCLUSION
The Court made a mistake when it held that the Government had
standing to appeal the decision of the Second Circuit.175 Whether the
Court reached the proper conclusion on the merits should not be more
important than whether the Court used the proper procedure to get to that
conclusion. By failing to wait to decide the issue until it had proper
jurisdiction, the Court overstepped its constitutional limits.176 The Court
also promoted inconsistency in the law by failing to adhere to the
prudential limits that have been set down in past decisions, without
expressly overruling them.177 Such mistakes have a broader impact than
on the issue of marriage; they impact the entire American legal system
going forward, and by making such mistakes, the Court turned its
decision into one that calls into question the integrity of the judicial
process.178
175.
176.
177.
178.
I. INTRODUCTION
To a certain degree, citizens of the United States are granted freedom
of choice concerning their decisions regarding abortion.1 Courts interpret
this freedom as a part of the U.S. Constitution, deriving from the
liberty interest found in the Due Process Clause of the Fourteenth
Amendment.2 The modern-day status of this abortion right is set forth in
Planned Parenthood of Southeastern Pennsylvania v. Casey, which
dictates that a woman has a freedom of choice prior to viability of the
fetus and that states cannot inhibit this choice by imposing an undue
915
916
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917
918
[Vol. 60:915
18.
19.
20.
21.
22.
23.
24.
25.
Casey, 505 U.S. at 846 (reaffirming the three-part holding of Roe v. Wade).
Id.
Id.
Id.
Id.
Id. at 877 (emphasis added).
Casey, 505 U.S. at 878.
Id. at 887901.
919
920
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921
and imposed an undue burden because it applied to both the dilation and
evacuation (D&E) procedure and the dilation and extraction (D&X)
procedure.39 This imposed an unconstitutional burden on a womans
right to choose the D&E procedure.40 Even though the statutes aim was
to ban D&X abortion, its language included D&E abortions,41 which are
the most common method of abortion in the second trimester previability.42 Abortion providers using the D&E method would fear
prosecution, conviction, and imprisonment; therefore, this would create
an undue burden on a womans right to choose.43
F. Ultrasound Requirements
Today, the trend throughout the United States is to include an
ultrasound provision in abortion legislation.44 Since the mid-1990s, an
aggregate analysis of U.S. legislation illustrates that many states have
attempted to make an ultrasound a part of the abortion procedure and that
these statutes are prevalent throughout the country.45 Some states have
enacted laws requiring that a woman seeking an abortion receive
information on obtaining an ultrasound, whereas others require that the
woman have an ultrasound prior to the abortion.46 The specifics of the
laws regulating the ultrasound vary from state to state, ranging from
pregnancy. Id. One advantage of this procedure is that the fetus is removed intact. Id.
This allows for a more accurate evaluation and autopsy of the fetus if there was some sort
of fetal abnormality. Id. Another such advantage is that intact removal also has a lower
risk of puncturing the uterus or damaging the cervix throughout the procedure. Id.
Despite this, the procedure is currently illegal in the United States. Id. There was
controversy over this late-term abortion due to the issues in determining the point of
viability. Id. Another controversial aspect of this procedure is that the fetal death does not
take place until after a majority of the fetus has exited the uterus. Id.
39. Stenberg, 530 U.S. at 938. The dilation and evacuation procedure involves
dilating the cervix, removing some fetal tissue using nonvacuum surgical instruments,
and, potentially, the instrumental dismemberment of the fetus (in order to facilitate
evacuation from the uterus). Id. at 925. The dilation and extraction procedure involves
dilating the cervix, instrumental conversion of the fetus to a footling breech, breech
extraction of the body excepting the head, and partial evacuation of the intracranial
contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus.
Id. at 928.
40. Id. at 938.
41. Id.
42. Id. at 945.
43. Id. at 94546.
44. See, e.g., MICH. COMP. LAWS ANN. 333.17015 (West 2014); 2012 La. Sess. Law
Serv. 685 (West).
45. State Policies in Brief: Requirements for Ultrasound, GUTTMACHER INST. (May 1,
2014), http://www.guttmacher.org/statecenter/spibs/spib_RFU.pdf.
46. Id.
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923
924
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925
Court found a Fourteenth Amendment liberty right as a basis for the right
to refuse medical care.72 The Court in Cruzan v. Director, Missouri
Department of Health held that, in general, a competent person has the
constitutional right to refuse medical care if they have the ability to
make an informed and voluntary choice.73
In upholding an ultrasound requirement prior to abortion, the Fifth
Circuit in Texas Medical Providers Performing Abortion Servicers v.
Lakey wrote that an ultrasound is viewed as medically necessary for
the mother and fetus.74 This is simply not true; conducting an ultrasound
prior to an abortion is not medically necessary.75 Knowing that this
procedure is not always medically necessary, the Food and Drug
Administration warned against the use of ultrasounds since their effects
are not completely understood.76 Even though ultrasounds are generally
safe when conducted at low levels, an ultrasound can have negative
effects on human tissue.77 Therefore, because effects of an ultrasound on
a fetus are not completely known, there is a possibility of harm to the
fetus.78 Some doctors believe that the high-frequency sound waves of an
ultrasound may affect the development of the fetus.79
Legislation now being passed effectively mandates a transvaginal
ultrasound prior to the abortion procedure, thus enlarging this issue.80
The idea of requiring a transvaginal ultrasound over an abdominal
ultrasound arose when doctors claimed the heartbeat would not be
detected during the first trimester with only an abdominal ultrasound.81
This procedure is admittedly more invasive than an abdominal
right of every individual to the possession and control of his own person, free from all
restraint or interference of others).
72. See, e.g., Washington v. Harper, 494 U.S. 210, 22122 (1990); Cruzan v. Dir.,
Mo. Dept of Health, 497 U.S. 261, 278 (1990).
73. Cruzan, 497 U.S. at 27980.
74. 667 F.3d 570, 579 (5th Cir. 2012).
75. Weber, supra note 12, at 368 (noting that ultrasounds are normally used to
determine the gestational age of the fetus and to identify possible issues with the
pregnancy).
76. Carol Rados, FDA Cautions Against Ultrasound Keepsake Images, U.S. FOOD
AND DRUG ADMIN. (Jan.-Feb. 2004), http://www.sdms.org/pdf/FDAKeepsake.pdf ([T]he
medical community is discouraging the use of ultrasound unless it is medically
necessary.).
77. Id.
78. Id.
79. Id.
80. See, e.g., LA. REV. STAT. ANN. 40:1299.35.2 (2014).
81. Ken Shepherd, WAMUs Michael Pope Furthers Leftist Myth Rather than Fact in
Story on Va. Ultrasound Requirement, NEWSBUSTERS (Jan. 17, 2013, 7:21 PM),
http://newsbusters.org/blogs/ken-shepherd/2013/01/17/wamus-michael-pope-furthersleftist-myth-rather-fact-story-va-ultrasou.
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927
928
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929
(Armed with this knowledge [that women choose to bring their child to term after
viewing an ultrasound image], Michigan legislators enacted the Ultrasound Viewing
Option Law in 2006.).
111. Texas Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 577
78 (5th Cir. 2012).
112. Id. at 578.
113. Id.
114. Carol Sanger, Seeing and Believing: Mandatory Ultrasound and the Path to a
Protected Choice, 56 UCLA L. REV. 351, 351 (2008).
115. Id.
116. Id.
117. Id.
118. Id.
119. Id. at 38283.
120. Sanger, supra note 114, at 383. Some of these expectations include legal
regulation (for example, not drinking or smoking during pregnancy), cultural
expectations, and social expectations of the mother to put the good of the child over all
else. Id.
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931
Id.
Cohen, supra note 131, at 8.
Weber, supra note 12, at 38081.
Id. at 368.
Pelvic Ultrasound and Transvaginal Ultrasound, HARVARD HEALTH
PUBLICATIONS,
http://www.health.harvard.edu/diagnostic-tests/pelvic-ultrasound-andtransvaginal-ultrasound.htm (last visited Apr. 12, 2014).
138. Weber, supra note 12, at 371.
139. Id.
140. Tucson Womans Clinic v. Eden, 379 F.3d 531, 542 (9th Cir. 2004).
141. Id.
142. Id. at 541.
143. Hopkins et al., supra note 121, at 549. The stigma attached to an abortion reflects
both social and political efforts to shame the woman who chooses to have an abortion.
Abrams, supra note 4, at 334. Data suggests that there is an underreporting of abortions
and fear of social ostracism. Id. Shame was associated with abortion both prior to Roe v.
Wade, and it remains today. Id. Shaming today is an overt political goal with the passage
of highly intrusive laws that mandate physically invasive ultrasounds prior to an abortion
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