MICHIGAN REPORTS

CASES DECIDED
IN THE

SUPREME COURT
OF

MICHIGAN
FROM

November 1, 2019 through July 17, 2020

KATHRYN L. LOOMIS
REPORTER OF DECISIONS

VOL. 505
FIRST EDITION

2022
 The paper used in this publication meets the minimum
requirements of American National Standard for Information
Sciences—Permanence of Paper for Printed Library Materi-
als, ANSI Z39.48-1984.
 SUPREME COURT

TERM EXPIRES
JANUARY 1 OF
CHIEF JUSTICE
BRIDGET M. MCCORMACK ......................................................... 2021

CHIEF JUSTICE PRO TEM

DAVID F. VIVIANO ........................................................................ 2025

JUSTICES
STEPHEN J. MARKMAN.............................................................. 2021
BRIAN K. ZAHRA .......................................................................... 2023
RICHARD H. BERNSTEIN ........................................................... 2023
ELIZABETH T. CLEMENT ........................................................... 2027
MEGAN K. CAVANAGH ................................................................ 2027

COMMISSIONERS

DANIEL C. BRUBAKER, CHIEF COMMISSIONER

TIMOTHY J. RAUBINGER MARK E. PLAZA
SHARI M. OBERG MOLLY E. HENNESSEY
DEBRA A. GUTIERREZ-MCGUIRE REGINA T. DELMASTRO
MICHAEL S. WELLMAN CHRISTOPHER M. THOMPSON
GARY L. ROGERS CHRISTOPHER M. SMITH
ANNE E. ALBERS JONATHAN S. LUDWIG
STACI STODDARD LIZA C. MOORE
KAREN A. KOSTBADE

STATE COURT ADMINISTRATOR

MILTON L. MACK, JR.1
THOMAS P. BOYD2

CLERK: LARRY S. ROYSTER

REPORTER OF DECISIONS: KATHRYN L. LOOMIS
CRIER: JEFFREY A. MILLS

1
To March 23, 2020.
2
From March 23, 2020.

iii
 COURT OF APPEALS
TERM EXPIRES
JANUARY 1 OF
CHIEF JUDGE
2021
CHRISTOPHER M. MURRAY ....................................................
CHIEF JUDGE PRO TEM
JANE M. BECKERING ............................................................... 2025

JUDGES
DAVID SAWYER .......................................................................... 2023
MARK J. CAVANAGH ................................................................. 2021
KATHLEEN JANSEN ................................................................. 2025
JANE E. MARKEY ...................................................................... 2021
PATRICK M. METER .................................................................. 2021
KIRSTEN FRANK KELLY .......................................................... 2025
KAREN FORT HOOD.................................................................. 2021
STEPHEN L. BORRELLO .......................................................... 2025
DEBORAH A. SERVITTO ........................................................... 2025
ELIZABETH L. GLEICHER ....................................................... 2025
CYNTHIA DIANE STEPHENS................................................... 2023
MICHAEL J. KELLY ................................................................... 2021
DOUGLAS B. SHAPIRO ............................................................. 2025
AMY RONAYNE KRAUSE.......................................................... 2021
MARK T. BOONSTRA ................................................................. 2021
MICHAEL J. RIORDAN .............................................................. 2025
MICHAEL F. GADOLA................................................................ 2023
COLLEEN A. O’BRIEN ............................................................... 2023
BROCK A. SWARTZLE................................................................ 2023
THOMAS C. CAMERON ............................................................. 2023
JONATHAN TUKEL.................................................................... 2021
ANICA LETICA ............................................................................ 2021
JAMES R. REDFORD.................................................................. 2021

CHIEF CLERK: JEROME W. ZIMMER, JR.

RESEARCH DIRECTOR: JULIE ISOLA RUECKE

iv
 CIRCUIT JUDGES

TERM EXPIRES
JANUARY 1 OF
1. MICHAEL R. SMITH....................................................... 2021
2. DONNA B. HOWARD ...................................................... 2021
CHARLES T. LASATA ...................................................... 2023
ANGELA PASULA ........................................................... 2025
JENNIFER L. SMITH ..................................................... 2021
3. DAVID J. ALLEN ............................................................. 2021
MARIAM BAZZI ............................................................... 2021
ANNETTE J. BERRY....................................................... 2025
GREGORY D. BILL.......................................................... 2025
ULYSSES W. BOYKIN..................................................... 2021
KAREN Y. BRAXTON...................................................... 2025
JEROME C. CAVANAGH ................................................ 2025
ERIC WILLIAM CHOLACK............................................ 2023
JAMES R. CHYLINSKI ................................................... 2023
KEVIN J. COX.................................................................. 2025
MELISSA ANNE COX ..................................................... 2023
PAUL JOHN CUSICK ..................................................... 2025
CHRISTOPHER D. DINGELL ........................................ 2021
PRENTIS EDWARDS, JR. ............................................... 2025
CHARLENE M. ELDER .................................................. 2021
WANDA EVANS................................................................ 2023
EDWARD EWELL, JR. .................................................... 2025
HELAL A. FARHAT ......................................................... 2021
PATRICIA SUSAN FRESARD......................................... 2023
SHEILA ANN GIBSON.................................................... 2023
JOHN H. GILLIS, JR. ..................................................... 2021
ALEXIS GLENDENING .................................................. 2023
TRACY E. GREEN ........................................................... 2025
DAVID ALAN GRONER .................................................. 2023
ADEL A. HARB ................................................................ 2025
BRIDGET MARY HATHAWAY........................................ 2025
CYNTHIA GRAY HATHAWAY ....................................... 2023
DANA MARGARET HATHAWAY ................................... 2025
THOMAS M.J. HATHAWAY ............................................ 2023
CHARLES S. HEGARTY ................................................. 2025
CATHERINE HEISE........................................................ 2025
NOAH P. HOOD ............................................................... 2021
SUSAN L. HUBBARD ..................................................... 2023
MURIEL D. HUGHES ..................................................... 2023

v
 TERM EXPIRES
JANUARY 1 OF
EDWARD JOSEPH .......................................................... 2021
TIMOTHY M. KENNY..................................................... 2023
DONALD KNAPP............................................................. 2021
QIANA D. LILLARD ........................................................ 2025
KATHLEEN M. MCCARTHY .......................................... 2025
CYLENTHIA LATOYE MILLER ..................................... 2021
BRUCE U. MORROW ...................................................... 2023
JOHN A. MURPHY.......................................................... 2023
LYNNE A. PIERCE .......................................................... 2021
LITA MASINI POPKE ..................................................... 2023
KELLY RAMSEY.............................................................. 2023
MARK T. SLAVENS ......................................................... 2023
LESLIE KIM SMITH ....................................................... 2025
MARTHA M. SNOW......................................................... 2023
CRAIG S. STRONG.......................................................... 2021
BRIAN R. SULLIVAN ...................................................... 2023
LAWRENCE S. TALON ................................................... 2021
CARLA TESTANI ............................................................. 2021
DEBORAH A. THOMAS .................................................. 2025
REGINA DANIELS THOMAS......................................... 2025
MARGARET M. VAN HOUTEN ....................................... 2021
SHANNON N. WALKER ................................................. 2021
DARNELLA DENISE WILLIAMS-CLAYBOURN ......... 20211
4. SUSAN BEEBE JORDAN ............................................... 2023
RICHARD N. LAFLAMME .............................................. 2023
JOHN G. MCBAIN, JR. .................................................... 2021
THOMAS D. WILSON ..................................................... 2025
5. VICKY ALSPAUGH.......................................................... 20212
6. JAMES M. ALEXANDER ................................................ 2021
MARTHA ANDERSON .................................................... 2021
LEO BOWMAN ................................................................ 2025
MARY ELLEN BRENNAN.............................................. 2021
RAE LEE CHABOT ......................................................... 2023
JACOB JAMES CUNNINGHAM.................................... 2025
KAMESHIA D. GANT...................................................... 2021
LISA ORTLIEB GORCYCA ............................................. 2021
NANCI J. GRANT ............................................................ 2021
HALA Y. JARBOU ............................................................ 2023
SHALINA D. KUMAR...................................................... 2021

1
From April 6, 2020.
2
From January 1, 2020.

vi
 TERM EXPIRES
JANUARY 1 OF
DENISE LANGFORD-MORRIS...................................... 2025
LISA LANGTON............................................................... 2023
JEFFREY S. MATIS......................................................... 2021
CHERYL A. MATTHEWS ................................................ 2023
JULIE A. MCDONALD..................................................... 2025
PHYLLIS C. MCMILLEN ................................................ 2025
DANIEL PATRICK O’BRIEN .......................................... 2023
VICTORIA ANN VALENTINE ........................................ 2023
MICHAEL D. WARREN, JR. ........................................... 2025
7. DUNCAN M. BEAGLE .................................................... 2023
CELESTE D. BELL.......................................................... 2025
JOSEPH J. FARAH.......................................................... 2023
JOHN A. GADOLA........................................................... 2021
ELIZABETH ANNE KELLY............................................ 2025
MARK W. LATCHANA .................................................... 20213
DAVID J. NEWBLATT..................................................... 2023
BRIAN S. PICKELL......................................................... 2025
MICHAEL J. THEILE ..................................................... 2021
RICHARD B. YUILLE ..................................................... 20214
8. SUZANNE KREEGER ..................................................... 2021
RONALD J. SCHAFER.................................................... 2023
9. PAUL J. BRIDENSTINE ................................................ 2025
GARY C. GIGUERE, JR. ................................................. 2021
STEPHEN D. GORSALITZ ............................................. 2023
PAMELA L. LIGHTVOET ............................................... 2025
ALEXANDER C. LIPSEY ................................................ 2023
10. JANET M. BOES.............................................................. 2025
JAMES T. BORCHARD ................................................... 2023
ANDRÉ R. BORRELLO ................................................... 2023
DARNELL JACKSON...................................................... 2025
MANVEL TRICE, III ....................................................... 2021
11. WILLIAM W. CARMODY ................................................ 2021
12. CHARLES R. GOODMAN ............................................... 2021
13. KEVIN A. ELSENHEIMER............................................. 2021
THOMAS G. POWER....................................................... 2023
14. TIMOTHY G. HICKS ....................................................... 2023
KATHY HOOGSTRA........................................................ 2021
WILLIAM C. MARIETTI ................................................. 2023
ANNETTE ROSE SMEDLEY.......................................... 2025

3
From March 5, 2020.
4
To January 5, 2020.

vii
 TERM EXPIRES
JANUARY 1 OF
15. P. WILLIAM O’GRADY.................................................... 2021
16. JAMES M. BIERNAT, JR. ............................................... 2025
RICHARD L. CARETTI ................................................... 2023
DIANE M. DRUZINSKI................................................... 2021
JENNIFER FAUNCE....................................................... 2025
JULIE GATTI ................................................................... 2027
JAMES M. MACERONI................................................... 2021
CARL J. MARLINGA ....................................................... 2023
RACHEL RANCILIO ....................................................... 2023
EDWARD A. SERVITTO, JR. .......................................... 2025
MICHAEL E. SERVITTO ................................................ 2023
MARK S. SWITALSKI ..................................................... 2025
MATTHEW S. SWITALSKI ............................................. 2021
JOSEPH TOIA.................................................................. 2021
KATHRYN A. VIVIANO .................................................. 2023
TRACEY A. YOKICH ....................................................... 2025
17. CURT A. BENSON........................................................... 2025
PAUL J. DENENFELD.................................................... 2023
CHRISTINA ELMORE..................................................... 2025
KATHLEEN A. FEENEY................................................. 2021
DEBORAH MCNABB ....................................................... 2023
GEORGE JAY QUIST ...................................................... 2023
J. JOSEPH ROSSI ........................................................... 2023
PAUL J. SULLIVAN......................................................... 2021
MARK A. TRUSOCK........................................................ 2025
CHRISTOPHER P. YATES .............................................. 2025
DANIEL V. ZEMAITIS..................................................... 2021
18. HARRY P. GILL................................................................ 2023
JOSEPH K. SHEERAN ................................................... 2021
19. DAVID A. THOMPSON.................................................... 2021
20. KENT D. ENGLE ............................................................. 2023
JON H. HULSING ........................................................... 2021
KAREN J. MIEDEMA ..................................................... 2023
JON VAN ALLSBURG ..................................................... 2025
21. MARK H. DUTHIE .......................................................... 2025
SARA SPENCER-NOGGLE............................................. 2021
22. ARCHIE CAMERON BROWN ........................................ 2023
PATRICK J. CONLIN, JR. .............................................. 2021
TIMOTHY P. CONNORS ................................................. 2025
CAROL A. KUHNKE ....................................................... 2025
DAVID S. SWARTZ .......................................................... 2021
23. DAVID C. RIFFEL............................................................ 2023
24. DONALD A. TEEPLE ...................................................... 2021

viii
 TERM EXPIRES
JANUARY 1 OF
25. JENNIFER A. MAZZUCHI.............................................. 2021
26. KEITH EDWARD BLACK ............................................... 20215
MICHAEL G. MACK........................................................ 20216
27. ROBERT D. SPRINGSTEAD .......................................... 2025
28. WILLIAM M. FAGERMAN.............................................. 2021
29. MICHELLE M. RICK....................................................... 2023
RANDY L. TAHVONEN .................................................. 2021
30. ROSEMARIE E. AQUILINA ........................................... 2021
LAURA BAIRD ................................................................. 20257
CLINTON CANADY, III .................................................. 2023
JOYCE DRAGANCHUK .................................................. 2023
JAMES S. JAMO .............................................................. 2025
JANELLE A. LAWLESS .................................................. 2021
LISA K. MCCORMICK ..................................................... 20218
WANDA M. STOKES ....................................................... 2021
31. DANIEL J. KELLY........................................................... 2021
CYNTHIA A. LANE.......................................................... 2023
MICHAEL L. WEST......................................................... 2025
32. MICHAEL K. POPE......................................................... 2021
33. ROY C. HAYES, III .......................................................... 2021
34. ROBERT BENNETT ........................................................ 2023
35. MATTHEW J. STEWART ................................................ 2021
36. KATHLEEN M. BRICKLEY............................................ 2025
JEFFREY J. DUFON....................................................... 2021
37. JOHN A. HALLACY......................................................... 2025
TINA YOST JOHNSON ................................................... 2023
BRIAN KIRKHAM ........................................................... 2023
SARAH SOULES LINCOLN ........................................... 2021
38. MARK S. BRAUNLICH ................................................... 2025
MICHAEL A. WEIPERT .................................................. 2023
DANIEL S. WHITE.......................................................... 2021
39. ANNA MARIE ANZALONE ............................................ 2025
MICHAEL R. OLSAVER.................................................. 2021
40. NICK O. HOLOWKA ....................................................... 2023
BYRON KONSCHUH ...................................................... 2021
41. MARY BROUILLETTE BARGLIND .............................. 2023

5
From March 2, 2020.
6
To January 3, 2020.
7
To February 1, 2020.
8
From March 2, 2020.

ix
 TERM EXPIRES
JANUARY 1 OF
CHRISTOPHER S. NINOMIYA ...................................... 2021
42. MICHAEL J. BEALE ....................................................... 2021
STEPHEN CARRAS......................................................... 2025
43. MARK A. HERMAN ......................................................... 2023
44. L. SUZANNE GEDDIS .................................................... 2027
MICHAEL P. HATTY ....................................................... 2025
MATTHEW J. MCGIVNEY .............................................. 20219
45. PAUL E. STUTESMAN ................................................... 2025
46. COLIN G. HUNTER ........................................................ 2023
GEORGE J. MERTZ ........................................................ 2021
47. JOHN B. ECONOMOPOULOS ....................................... 2023
48. MARGARET ZUZICH BAKKER ..................................... 2023
ROBERTS KENGIS ......................................................... 2021
49. KIMBERLY L. BOOHER ................................................. 2021
SCOTT P. HILL-KENNEDY............................................ 2025
50. JAMES P. LAMBROS ...................................................... 2025
51. SUSAN K. SNIEGOWSKI ............................................... 2021
52. GERALD M. PRILL ......................................................... 2021
53. AARON J. GAUTHIER .................................................... 2021
54. AMY G. GIERHART ........................................................ 2025
55. THOMAS R. EVANS ........................................................ 2021
ROY G. MIENK ................................................................ 2025
56. JANICE K. CUNNINGHAM ........................................... 2025
JOHN DOUGLAS MAURER........................................... 2021
57. CHARLES W. JOHNSON ................................................ 2025

9
From July 22, 2019.

x
 DISTRICT JUDGES

TERM EXPIRES
JANUARY 1 OF
1. MICHAEL C. BROWN...................................................... 2021
WILLIAM PAUL NICHOLS ............................................. 2025
JACK VITALE ................................................................... 2023
2A. JONATHAN L. POER ....................................................... 2021
LAURA J. SCHAEDLER .................................................. 2023
2B. SARA S. LISZNYAI ........................................................... 2021
3A. BRENT R. WEIGLE.......................................................... 2021
3B. JEFFREY C. MIDDLETON ............................................. 2021
ROBERT PATTISON......................................................... 2025
4. STACEY A. RENTFROW.................................................. 2021
5. GARY J. BRUCE ............................................................... 2023
ARTHUR J. COTTER ....................................................... 2021
GORDON GARY HOSBEIN ............................................. 2021
STERLING R. SCHROCK ................................................ 2025
DENNIS M. WILEY.......................................................... 2023
7. ARTHUR H. CLARKE, III ............................................... 2021
MICHAEL T. MCKAY ........................................................ 2023
8. ANNE E. BLATCHFORD ................................................. 2025
CHRISTOPHER T. HAENICKE ...................................... 2025
KATHLEEN P. HEMINGWAY.......................................... 2021
JULIE K. PHILLIPS......................................................... 2021
RICHARD A. SANTONI ................................................... 2021
VINCENT C. WESTRA..................................................... 2023
10. PAUL K. BEARDSLEE ..................................................... 2021
JASON C. BOMIA ............................................................ 2021
FRANKLIN K. LINE, JR. ................................................. 2021
TRACIE L. TOMAK .......................................................... 2025
12. JOSEPH S. FILIP ............................................................. 2023
DANIEL GOOSTREY ....................................................... 2025
MICHAEL J. KLAEREN .................................................. 2021
R. DARRYL MAZUR ......................................................... 2021
14A. ANNA M. FRUSHOUR ..................................................... 20211
J. CEDRIC SIMPSON....................................................... 2025
KIRK W. TABBEY............................................................. 2023
14B. CHARLES J. POPE .......................................................... 2021
15. JOSEPH F. BURKE .......................................................... 2025
ELIZABETH POLLARD HINES...................................... 2023
KAREN Q. VALVO ............................................................ 2021
16. SEAN P. KAVANAGH ....................................................... 2021
KATHLEEN J. MCCANN ................................................. 2025
17. KRISTA LICATA HAROUTUNIAN ................................. 2021
KAREN S. KHALIL .......................................................... 2023

1
From January 13, 2020.

xi
 TERM EXPIRES
JANUARY 1 OF
18. SANDRA A. FERENCE CICIRELLI................................ 2025
MARK A. MCCONNELL ................................................... 2021
19. L. EUGENE HUNT, JR. ................................................... 2023
SAM A. SALAMEY............................................................ 2025
MARK W. SOMERS .......................................................... 2021
20. MARK J. PLAWECKI ....................................................... 2021
DAVID TURFE .................................................................. 2025
21. RICHARD L. HAMMER, JR. ........................................... 2021
22. SABRINA L. JOHNSON................................................... 2025
23. GENO D. SALOMONE ..................................................... 2025
JOSEPH D. SLAVEN ........................................................ 2021
24. JOHN T. COURTRIGHT .................................................. 2021
RICHARD A. PAGE........................................................... 2023
25. GREGORY A. CLIFTON................................................... 2021
DAVID J. ZELENAK......................................................... 2023
27. ELIZABETH L. DISANTO ............................................... 2025
28. JAMES A. KANDREVAS .................................................. 2021
29. LAURA REDMOND MACK.............................................. 20252
BREEDA K. O’LEARY ...................................................... 20213
30. BRIGETTE OFFICER HOLLEY...................................... 2023
31. ALEXIS G. KROT ............................................................. 2021
32A. DANIEL S. PALMER ........................................................ 2021
33. JENNIFER COLEMAN HESSON ................................... 2023
JAMES KURT KERSTEN ................................................ 2021
MICHAEL K. MCNALLY .................................................. 2025
34. TINA BROOKS GREEN ................................................... 2025
BRIAN A. OAKLEY .......................................................... 2023
DAVID M. PARROTT ........................................................ 2021
35. MICHAEL J. GEROU ....................................................... 2023
RONALD W. LOWE .......................................................... 2025
JAMES A. PLAKAS .......................................................... 2021
36. LYDIA NANCE ADAMS ................................................... 2023
ROBERTA C. ARCHER..................................................... 2025
CHRISTOPHER MICHAEL BLOUNT ............................ 2025
NANCY MCCAUGHAN BLOUNT ................................... 2021
DEMETRIA BRUE ............................................................ 2021
ESTHER LYNISE BRYANT ............................................. 2021
DONALD COLEMAN ....................................................... 2025
KAHLILIA YVETTE DAVIS ............................................. 2023
DEBORAH GERALDINE FORD ..................................... 2023
RUTH ANN GARRETT..................................................... 2025
KRISTINA ROBINSON GARRETT ................................. 2023
WILLIAM AUSTIN GARRETT ........................................ 2023
RONALD GILES ............................................................... 2021
ADRIENNE HINNANT-JOHNSON................................. 2021
SHANNON A. HOLMES .................................................. 2021

2
To March 1, 2020.
3
From June 8, 2020.
xii
 TERM EXPIRES
JANUARY 1 OF
PATRICIA L. JEFFERSON .............................................. 2021
KENYETTA STANFORD JONES .................................... 2023
ALICIA A. JONES-COLEMAN ........................................ 2025
KENNETH J. KING ......................................................... 2021
DEBORAH L. LANGSTON .............................................. 2025
JACQUELYN A. MCCLINTON......................................... 20214
WILLIAM C. MCCONICO................................................. 2025
DONNA R. MILHOUSE ................................................... 2025
B. PENNIE MILLENDER ................................................ 2023
KEVIN F. ROBBINS ......................................................... 2025
DAVID S. ROBINSON, JR. .............................................. 2025
ALIYAH SABREE ............................................................. 2025
MICHAEL E. WAGNER ................................................... 2021
LARRY D. WILLIAMS, JR. .............................................. 2023
37. JOHN M. CHMURA ......................................................... 2025
MICHAEL CHUPA............................................................ 2021
SUZANNE M. FAUNCE ................................................... 2023
MATTHEW P. SABAUGH ................................................ 2025
38. CARL F. GERDS III .......................................................... 2021
39. JOSEPH F. BOEDEKER .................................................. 2021
ALYIA MARIE HAKIM..................................................... 20215
KATHLEEN E. TOCCO.................................................... 2025
40. MARK A. FRATARCANGELI........................................... 2025
JOSEPH CRAIGEN OSTER ............................................ 2021
41A. ANNEMARIE M. LEPORE .............................................. 2021
DOUGLAS P. SHEPHERD ............................................... 2025
STEPHEN S. SIERAWSKI ............................................... 2023
KIMBERLEY ANNE WIEGAND ..................................... 2025
41B. JACOB M. FEMMININEO, JR ......................................... 2021
CARRIE LYNN FUCA ...................................................... 2023
SEBASTIAN LUCIDO ...................................................... 2025
42-1. DENIS R. LEDUC.............................................................. 2021
42-2. WILLIAM H. HACKEL, III .............................................. 2025
43. CHARLES G. GOEDERT ................................................. 20216
BRIAN C. HARTWELL .................................................... 20217
KEITH P. HUNT ............................................................... 2025
JOSEPH LONGO .............................................................. 2023
44. DEREK W. MEINECKE ................................................... 2025
JAMES L. WITTENBERG................................................ 2023
45. MICHELLE FRIEDMAN APPEL .................................... 2023
DAVID M. GUBOW........................................................... 2021
46. CYNTHIA ARVANT........................................................... 2023
SHEILA R. JOHNSON ..................................................... 2021

4
From January 13, 2020.
5
From December 2, 2019.
6
To March 16, 2020.
7
From June 9, 2020.
xiii
 TERM EXPIRES
JANUARY 1 OF
DEBRA NANCE ................................................................ 2025
47. JAMES B. BRADY ............................................................ 2021
MARLA E. PARKER ......................................................... 2023
48. MARC BARRON................................................................ 2023
DIANE D’AGOSTINI ........................................................ 2025
KIMBERLY F. SMALL...................................................... 2021
50. RONDA FOWLKES GROSS............................................. 2025
MICHAEL C. MARTINEZ ................................................ 2021
PRESTON G. THOMAS ................................................... 2023
CYNTHIA THOMAS WALKER........................................ 2021
51. TODD A. FOX ................................................................... 2025
RICHARD D. KUHN, JR. ................................................. 2021
52-1. ROBERT BONDY.............................................................. 2025
THOMAS DAVID LAW ..................................................... 2023
TRAVIS REEDS................................................................. 2021
52-2. JOSEPH G. FABRIZIO ..................................................... 2021
KELLEY RENAE KOSTIN .............................................. 2023
52-3. LISA L. ASADOORIAN..................................................... 2025
NANCY TOLWIN CARNIAK ........................................... 2023
JULIE A. NICHOLSON.................................................... 2021
52-4. KIRSTEN NIELSEN HARTIG......................................... 2023
MAUREEN M. MCGINNIS............................................... 2021
53. DANIEL B. BAIN.............................................................. 2021
SHAUNA MURPHY .......................................................... 2023
54A. LOUISE ALDERSON........................................................ 2023
STACIA J. BUCHANAN .................................................. 2021
KRISTEN D. SIMMONS ................................................. 2021
CYNTHIA M. WARD......................................................... 2025
54B. RICHARD D. BALL .......................................................... 2023
ANDREA ANDREWS LARKIN ........................................ 2025
55. DONALD L. ALLEN ......................................................... 2023
THOMAS P. BOYD............................................................ 20218
RICHARD L. HILLMAN................................................... 20219
56A. JULIE O’NEILL ................................................................ 2023
JULIE H. REINCKE......................................................... 2021
56B. MICHAEL LEE SCHIPPER............................................. 2025
57. WILLIAM A. BAILLARGEON ......................................... 2025
JOSEPH S. SKOCELAS ................................................... 2021
58. CRAIG E. BUNCE ............................................................ 2025
SUSAN A. JONAS............................................................. 2021
BRADLEY S. KNOLL ....................................................... 2021
JUDITH K. MULDER....................................................... 2023
59. PETER P. VERSLUIS ....................................................... 2023
60. HAROLD F. CLOSZ, III.................................................... 2021

8
To March 22, 2020.
9
From April 13, 2020.
xiv
 TERM EXPIRES
JANUARY 1 OF
MARIA LADAS HOOPES................................................. 2021
RAYMOND J. KOSTRZEWA JR. ...................................... 2025
GEOFFREY THOMAS NOLAN ....................................... 2023
61. NICHOLAS S. AYOUB ..................................................... 2023
DAVID J. BUTER.............................................................. 2021
MICHAEL J. DISTEL....................................................... 2025
JENNIFER FABER ........................................................... 2023
JEANINE NEMESI LAVILLE.......................................... 2025
KIMBERLY A. SCHAEFER.............................................. 2021
62A. PABLO CORTES ............................................................... 2021
STEVEN M. TIMMERS.................................................... 2025
62B. WILLIAM G. KELLY ........................................................ 2021
63. JEFFREY J. O’HARA ....................................................... 2021
SARA J. SMOLENSKI ...................................................... 2021
64A. RAYMOND P. VOET ......................................................... 2021
64B. DONALD R. HEMINGSEN.............................................. 2021
65A. MICHAEL E. CLARIZIO .................................................. 2021
65B. STEWART D. MCDONALD .............................................. 2021
66. WARD L. CLARKSON ...................................................... 2025
TERRANCE P. DIGNAN .................................................. 2021
67-1. DAVID J. GOGGINS ......................................................... 2021
67-2. JESSICA J. HAMMON ..................................................... 202110
MARK W. LATCHANA ..................................................... 202311
JENNIFER J. MANLEY................................................... 2021
67-3. VIKKI BAYEH HALEY..................................................... 2021
67-4. MARK C. MCCABE ........................................................... 2021
CHRISTOPHER R. ODETTE........................................... 2025
67-5. WILLIAM H. CRAWFORD, II.......................................... 2025
G. DAVID GUINN ............................................................. 2021
HERMAN MARABLE, JR. ............................................... 2025
NATHANIEL C. PERRY, III............................................. 2021
70-1. TERRY L. CLARK............................................................. 2025
M. RANDALL JURRENS ................................................. 2023
70-2. ELIAN FICHTNER ........................................................... 2021
ALFRED T. FRANK .......................................................... 2021
DAVID D. HOFFMAN....................................................... 2025
71A. LAURA CHEGER BARNARD .......................................... 2021
71B. JASON ERIC BITZER ...................................................... 2021
72. MONA S. ARMSTRONG................................................... 202112
MICHAEL L. HULEWICZ................................................ 2023
JOHN D. MONAGHAN .................................................... 2025

10
From April 13, 2020.
11
To March 4, 2020.
12
From March 13, 2020.

xv
 TERM EXPIRES
JANUARY 1 OF
CYNTHIA SIEMEN PLATZER ........................................ 202113
74. MARK E. JANER .............................................................. 2023
TIMOTHY J. KELLY ........................................................ 2025
DAWN A. KLIDA............................................................... 2021
75. MICHAEL CARPENTER.................................................. 2021
76. ERIC R. JANES ................................................................ 2021
77. PETER M. JAKLEVIC...................................................... 2021
78. H. KEVIN DRAKE ............................................................ 2021
79. PETER J. WADEL............................................................. 2021
80. JOSHUA M. FARRELL..................................................... 2021
82. RICHARD E. NOBLE ....................................................... 2021
84. AUDREY D. VAN ALST ................................................... 2021
86. ROBERT A. COONEY ...................................................... 2025
MICHAEL S. STEPKA ..................................................... 2023
89. MARIA I. BARTON ........................................................... 2021
90. ANGELA LASHER............................................................ 202114
92. BETH A. GIBSON ............................................................. 2021
93. MARK E. LUOMA............................................................. 2021
94. STEVE PARKS .................................................................. 2021
95A. ROBERT J. JAMO ............................................................ 2021
95B. JULIE A. LACOST............................................................. 2021
96. ROGER W. KANGAS ........................................................ 2021
KARL WEBER................................................................... 2023
97. NICHOLAS J. DAAVETTILA........................................... 202115
MARK A. WISTI................................................................ 202116

13
To December 31, 2019.
14
From February 17, 2020.
15
From April 13, 2020.
16
To March 15, 2020.

xvi
 MUNICIPAL JUDGES

TERM EXPIRES
JANUARY 1 OF
RUSSELL F. ETHRIDGE..................................................... 2024
CARL F. JARBOE ................................................................. 2022
THEODORE A. METRY ....................................................... 2024
MATTHEW R. RUMORA ..................................................... 2022

xvii
 PROBATE JUDGES

TERM EXPIRES
COUNTY JANUARY 1 OF
Alcona.......................LAURA A. FRAWLEY ............................. 2025
Alger/Schoolcraft .....CHARLES C. NEBEL ............................. 2025
Allegan .....................MICHAEL L. BUCK................................ 2025
Alpena ......................THOMAS J. LACROSS ............................ 2025
Antrim ......................NORMAN R. HAYES............................... 2025
Arenac ......................RICHARD E. VOLLBACH, JR. ............... 2025
Baraga ......................TIMOTHY S. BRENNAN........................ 2025
Barry ........................WILLIAM M. DOHERTY........................ 2025
Bay............................JAN A. MINER ........................................ 2025
Benzie .......................JOHN D. MEAD ...................................... 2025
Berrien .....................BRIAN BERGER ..................................... 2025
Berrien .....................MABEL JOHNSON MAYFIELD ............ 2021
Branch ......................KIRK A. KASHIAN ................................. 2025
Calhoun ....................MICHAEL L. JACONETTE.................... 2023
Cass ..........................SUSAN L. DOBRICH .............................. 2025
Cheboygan................DARYL P. VIZINA ................................... 2025
Chippewa .................ERIC BLUBAUGH .................................. 2021
Clare/Gladwin ..........MARCY A. KLAUS .................................. 2025
Clinton......................LISA SULLIVAN...................................... 2025
Crawford ..................MONTE J. BURMEISTER...................... 2025
Delta .........................PERRY R. LUND..................................... 2025
Dickinson .................THOMAS D. SLAGLE............................. 2025
Eaton ........................THOMAS K. BYERLEY .......................... 2025
Emmet/Charlevoix...VALERIE K. SNYDER ............................ 2025
Genesee ....................JENNIE E. BARKEY .............................. 2021
Genesee ....................F. KAY BEHM .......................................... 2025
Gogebic .....................ANNA ROSE TALASKA.......................... 2025
Grand Traverse........MELANIE STANTON ............................. 2025
Gratiot ......................KRISTIN M. BAKKER............................ 2025
Hillsdale ...................MICHELLE SNELL BIANCHI .............. 2025
Houghton..................FRASER T. STROME .............................. 2025
Huron .......................DAVID L. CLABUESCH ......................... 2025
Huron .......................DAVID B. HERRINGTON....................... 2021
Ingham .....................SHAUNA DUNNINGS ............................ 2025
Ingham .....................RICHARD J. GARCIA............................. 2021
Ionia..........................ROBERT S. SYKES, JR. .......................... 2025
Iosco..........................CHRISTOPHER P. MARTIN .................. 2025
Iron ...........................DONALD S. POWELL ............................ 2025
Isabella .....................STUART BLACK ..................................... 2025
Jackson.....................DIANE M. RAPPLEYE ........................... 2025
Kalamazoo................TIFFANY ANKLEY ................................. 2021
Kalamazoo................CURTIS J. BELL..................................... 2025

xviii
 TERM EXPIRES
COUNTY JANUARY 1 OF
Kalamazoo................G. SCOTT PIERANGELI ........................ 2023
Kalkaska ..................LYNNE M. BUDAY.................................. 2025
Kent ..........................TERENCE ACKERT................................ 2023
Kent ..........................PATRICIA D. GARDNER ........................ 2025
Kent ..........................G. PATRICK HILLARY ........................... 2025
Kent ..........................DAVID M. MURKOWSKI ....................... 2021
Keweenaw ................KEITH WAREN DEFORGE .................... 2025
Lake..........................MARK S. WICKENS ............................... 2025
Lapeer ......................JUSTUS C. SCOTT ................................. 2025
Leelanau...................MARIAN F. KROMKOWSKI .................. 2025
Lenawee ...................CATHERINE ANN SALA ....................... 2025
Livingston ................MIRIAM A. CAVANAUGH ...................... 2025
Luce/Mackinac .........W. CLAYTON GRAHAM ......................... 2025
Macomb ....................KATHRYN A. GEORGE .......................... 2021
Macomb ....................SANDRA A. HARRISON ......................... 2025
Manistee...................THOMAS N. BRUNNER......................... 2025
Marquette.................CHERYL L. HILL .................................... 2025
Mason .......................JEFFREY C. NELLIS ............................. 2025
Mecosta/Osceola.......TYLER O. THOMPSON.......................... 2025
Menominee...............DANIEL E. HASS.................................... 2025
Midland ....................DORENE S. ALLEN................................ 2025
Missaukee ................MELISSA J. RANSOM............................ 2025
Monroe......................FRANK L. ARNOLD ............................... 2021
Monroe......................CHERYL E. LOHMEYER ....................... 2025
Montcalm .................CHARLES W. SIMON, III ...................... 2025
Montmorency ...........BENJAMIN T. BOLSER ......................... 2025
Muskegon .................GREGORY C. PITTMAN ........................ 2025
Muskegon .................BRENDA E. SPRADER........................... 2023
Newaygo ...................MELISSA K. DYKMAN .......................... 2025
Oakland....................JENNIFER S. CALLAGHAN ................. 2023
Oakland....................LINDA S. HALLMARK ........................... 2025
Oakland....................DANIEL A. O’BRIEN .............................. 2021
Oakland....................KATHLEEN A. RYAN ............................. 2023
Oceana......................BRADLEY G. LAMBRIX......................... 2025
Ogemaw....................SHANA A. LAMBOURN ......................... 2025
Ontonagon................JANIS M. BURGESS .............................. 2025
Oscoda ......................CASSANDRA L. MORSE-BILLS............ 2025
Otsego.......................MICHAEL K. COOPER........................... 2025
Ottawa......................MARK A. FEYEN .................................... 2025
Presque Isle .............ERIK J. STONE....................................... 2025
Roscommon ..............MARK JERNIGAN .................................. 2025
Saginaw....................PATRICK J. MCGRAW ............................ 2025
Saginaw....................BARBARA L. METER ............................. 2021
St. Clair....................ELWOOD L. BROWN.............................. 2021

xix
 TERM EXPIRES
COUNTY JANUARY 1 OF
St. Clair....................JOHN D. TOMLINSON .......................... 2025
St. Joseph.................DAVID C. TOMLINSON ......................... 2025
Sanilac......................GREGORY S. ROSS ................................ 2021
Shiawassee...............THOMAS J. DIGNAN ............................. 2025
Tuscola......................NANCY THANE ...................................... 2025
Van Buren ................DAVID DISTEFANO ................................ 2025
Washtenaw...............DARLENE A. O’BRIEN .......................... 2025
Washtenaw...............JULIA OWDZIEJ..................................... 2021
Wayne .......................DAVID BRAXTON ................................... 2021
Wayne .......................FREDDIE G. BURTON, JR. .................... 2025
Wayne .......................JUDY A. HARTSFIELD .......................... 2021
Wayne .......................TERRANCE A. KEITH............................ 2021
Wayne .......................LISA MARIE NEILSON.......................... 2023
Wayne .......................LAWRENCE PAOLUCCI ........................ 2023
Wayne .......................DAVID PERKINS .................................... 2025
Wayne .......................FRANK S. SZYMANSKI ......................... 2025
Wexford ....................EDWARD VAN ALST .............................. 2025

xx
 JUDICIAL CIRCUITS

County Seat Circuit County Seat Circuit

Alcona ...............Harrisville .......... 23 Keweenaw .........Eagle River ......... 12
Alger..................Munising ............ 11
Allegan ..............Allegan................ 48 Lake ...................Baldwin ............... 51
Alpena ...............Alpena................. 26 Lapeer................Lapeer.................. 40
Antrim...............Bellaire ............... 13 Leelanau............Suttons Bay ........ 13
Arenac ...............Standish ............. 23 Lenawee.............Adrian.................. 39
Livingston..........Howell.................. 44
Baraga...............L’Anse ................. 12 Luce....................Newberry............. 11
Barry .................Hastings ............. 5
Bay ....................Bay City.............. 18 Mackinac ...........St. Ignace ............ 11
Benzie ...............Beulah ................ 19 Macomb .............Mount Clemens .. 16
Berrien ..............St. Joseph ........... 2 Manistee ............Manistee.............. 19
Branch...............Coldwater ........... 15 Marquette..........Marquette ........... 25
Mason ................Ludington............ 51
Calhoun.............Marshall, Battle Mecosta..............Big Rapids........... 49
Creek ................ 37 Menominee ........Menominee.......... 41
Cass...................Cassopolis........... 43 Midland .............Midland ............... 42
Charlevoix.........Charlevoix .......... 33 Missaukee..........Lake City............. 28
Cheboygan ........Cheboygan .......... 53 Monroe...............Monroe................. 38
Chippewa ..........Sault Ste. Montcalm...........Stanton................ 8
Marie ................... 50 Montmorency ....Atlanta ................ 26
Clare ..................Harrison .............. 55 Muskegon ..........Muskegon ............ 14
Clinton ...............St. Johns ............. 29
Crawford............Grayling .............. 46 Newaygo ............White Cloud ........ 27
Delta ..................Escanaba ............. 47 Oakland .............Pontiac................. 6
Dickinson...........Iron Mountain .... 41 Oceana ...............Hart ..................... 27
Ogemaw.............West Branch ....... 34
Eaton..................Charlotte ............. 56 Ontonagon .........Ontonagon........... 32
Emmet ...............Petoskey .............. 57 Osceola...............Reed City............. 49
Oscoda................Mio ....................... 23
Genesee..............Flint ..................... 7 Otsego ................Gaylord................ 46
Gladwin .............Gladwin ............... 55 Ottawa ...............Grand Haven ...... 20
Gogebic ..............Bessemer ............. 32
Grand Traverse.Traverse City ...... 13 Presque Isle.......Rogers City ......... 53
Gratiot ...............Ithaca................... 29
Roscommon .......Roscommon ......... 34
Hillsdale ............Hillsdale .............. 1
Houghton...........Houghton............. 12 Saginaw .............Saginaw............... 10
Huron.................Bad Axe ............... 52 St. Clair .............Port Huron.......... 31
St. Joseph ..........Centreville........... 45
Ingham ..............Mason, Lansing .. 30 Sanilac ...............Sandusky............. 24
Ionia ...................Ionia..................... 8 Schoolcraft.........Manistique .......... 11
Iosco ...................Tawas City .......... 23 Shiawassee ........Corunna............... 35
Iron.....................Crystal Falls ....... 41
Isabella ..............Mount Pleasant .. 21 Tuscola ...............Caro ..................... 54
Jackson ..............Jackson................ 4 Van Buren .........Paw Paw ............. 36
Kalamazoo.........Kalamazoo........... 9 Washtenaw ........Ann Arbor ........... 22
Kalkaska............Kalkaska ............. 46 Wayne ................Detroit ................. 3
Kent ...................Grand Rapids...... 17 Wexford..............Cadillac................ 28

xxi
 TABLE OF CASES REPORTED
(Lines set in small type refer to orders entered in cases
starting at page 851 and to special orders starting at page 1201.)

PAGE

A
A Clean Cigarette Corp v Governor ................................... 943
A Schepperly, Minor, In re ................................................... 1027
AAA of Michigan, Madison v .............................................. 1030
AMC Sault Ste Marie, Inc, Baragwanath v ...................... 1015
Abbas v City of Kalamazoo ................................................. 1042
Abdulkarim v Ronald S Lederman, MD, PLLC ................ 1041
Abraham v Incorp Services, Inc ......................................... 980
Accettola, People v ............................................................... 948
Adams, People v ................................................................... 947
Addolux, LLC, Resource Point, LLC v ............................... 985
Adkins v Gabor .................................................................... 1041
Affleck/Kutzleb/Simpson, Minors, In re ............................. 858
Afholter v Matuk ................................................................. 982
Agarwal v Agarwal .............................................................. 940
Ahmad v Univ of Michigan ................................................. 997
Al-Adily, People v ................................................................. 965
Al-Shimary, People v ........................................................... 976
Albrecht, Composto v ........................................................... 995
Alcala, People v .................................................................... 940
Aldridge, People v ................................................................ 975
Alexander, People v ............................................................. 1022
Allen, People v (Erick) ......................................................... 1045
Allen, People v (Kaelan) ...................................................... 947
Allen, People v (Sammy) ..................................................... 1133
Allen, People v (Talvest) ...................................................... 1082

xxiii
xxiv 505 MICHIGAN REPORTS

PAGE

Allen Park (City of), Allen Park Retirees Ass’n, Inc v ...... 1039
Allen Park Retirees Ass’n, Inc v City of Allen Park ......... 1039
Allendale Charter Twp Supervisor, Forner v .................... 1068
Alonzo, People v ................................................................... 995
Altantawi, Minors, In re ...................................................... 858
Altantawi, People v .............................................................. 1027
Alvarez, People v ................................................................. 1040
Alvarez, Swofford v .............................................................. 1128
Amato v Attorney Grievance Comm ................................... 948
America (Bank of), City of Dearborn v .............................. 867
Anaya v Betten Chevrolet ................................................... 1133
Anderson, People v (Frederick) ........................................... 1081
Anderson, People v (Needra) .............................................. 975
Anesthesia Services Affiliates v City of Detroit ................ 1133
Anonymous Judge, In re ..................................................... 1127
Anthony, People v ................................................................ 941
Application of Consumers Energy Co to Increase Rates,
In re .................................................................................. 871
Application of DTE Electric Co to Increase Rates, In re .. 871
Application of Indiana Michigan Power Co to Increase
Rates, In re ...................................................................... 1080
Arabbo v City of Burton ...................................................... 942
Armour, People v ................................................................. 1043
Armstead, People v .............................................................. 977
Armstrong, People v ............................................................ 1015
Arnold, People v (Charese) .................................................. 947
Arnold, People v (Lonnie) .................................................... 1001
Artinian, People v ................................................................ 978
Ashgrove Apartments, Harper v ......................................... 1017
Askew v Ingham County Sheriff ........................................ 1041
Attorney General, Progress Michigan v ............................. 877
Attorney Grievance Comm, Amato v .................................. 948
Attorney Grievance Comm, Ayers v ................................... 948
Attorney Grievance Comm, Blackward v .......................... 943
Attorney Grievance Comm, Culbertson v .......................... 1044
Attorney Grievance Comm, Hixon v .................................. 948
Attorney Grievance Comm, Howerton v ............................ 997
Attorney Grievance Comm, Kelley v .................................. 1044
Attorney Grievance Comm, Kelso-Guyton v ...................... 979
 TABLE OF CASES REPORTED xxv

PAGE

Attorney Grievance Comm, Kizer v ................................... 1019

Attorney Grievance Comm, Mitchell v ............................... 1135
Attorney Grievance Comm, Plater v .................................. 1019
Attorney Grievance Comm, Vontz v ................................... 1044
Attorney Grievance Comm, Walker v ................................ 943
Attorney Grievance Comm, Werth v .................................. 948
Attorney Grievance Comm, Williams v .............................. 1044
Auld v McLaren Regional Medical Center ........................ 869
Austin, People v ................................................................... 947
Auto Club Group, Wasenko v .............................................. 1139
Auto Club Ins Ass’n, Stevenson v ....................................... 1017
Auto Owners Ins Co, Hamady v ......................................... 1081
Auto-Owners Ins Co v Compass Healthcare PLC ............. 865
Auto-Owners Ins Co, Speckin Forensics, LLC v ............... 977
Averill, Rudd v .......................................................... 1132, 1134
Avery, People v ..................................................................... 995
Ayers v Attorney Grievance Comm .................................... 948
Ayob, People v ...................................................................... 1042

B
BRK, Inc, Wilson v .............................................................. 1015
Back in Motion Chiropractic, DC, PLLC v Westfield
Ins Co ............................................................................... 994
Bagley, People v ................................................................... 1134
Bailey, People v (James) ...................................................... 947
Bailey, People v (Larry) ....................................................... 964
Bailey, People v (Shawn) ...................................................... 942
Bak v Henry Ford Macomb Hospital Corp ........................ 1082
Baker, People v .................................................................... 869
Baldwin, People v (Timothy) ............................................... 1043
Baldwin, People v (Vitonn) ................................................. 1016
Ballard, People v .................................................................. 943
Bambas, Citimortgage, Inc v .............................................. 1040
Bank of America, Newmeyer v ........................................... 1081
Banks, People v (Derrek) .................................................... 978
Baraga Correctional Facility Warden, Newhouse v .......... 977
Baragwanath v AMC Sault Ste Marie, Inc ........................ 1015
Barber, People v (David) ..................................................... 1058
Barber, People v (Michael) .................................................. 937
xxvi 505 MICHIGAN REPORTS

PAGE

Barham, People v ................................................................. 869

Barner, People v ................................................................... 999
Barriger v Bon-Ton Dep’t Stores ........................................ 1080
Barron, People v .................................................................. 975
Barski, People v ................................................................... 979
Bartlett v State of Michigan ............................................... 996
Bates, People v (Carnell) .......................................... 943, 1020
Bates, People v (Darnell) .......................................... 943, 1020
Batts, People v ..................................................................... 1039
Bauer v Hammon ................................................................. 1011
Bauer v House of Representatives ..................................... 1042
Bauer v Waidelich ................................................................ 856
Bazzi, People v ..................................................................... 1066
Bd of State Canvassers, Committee to Ban Fracking in
Michigan v ....................................................................... 1137
Beal, People v ....................................................................... 1042
Bean, People v ...................................................................... 1133
Beard, People v (Bennie) ..................................................... 978
Beard, People v (Bradley) ................................................... 1017
Bearden, People v ................................................................ 978
Beaty, People v ..................................................................... 973
Beaudin, People v ................................................................ 1018
Bebee, People v .................................................................... 994
Beck, Grievance Administrator v ....................................... 948
Beckman, Sunnyside Resort Condominium Ass’n, Inc v .. 1015
Bell v City of Saginaw .................................................. 864, 997
Bell v Dep’t of Corrections .................................................. 980
Bell, People v (Justin) ......................................................... 1040
Bell, People v (Lester) ......................................................... 1083
Belser v Evans ..................................................................... 947
Bemis, People v .................................................................... 1042
Bender, Gaydos v ...................................................... 883, 1129
BeneBldg, LLC, Farm Bureau General Ins Co of
Michigan v ....................................................................... 955
Bennett, People v (Jamal) ................................................... 961
Bennett, People v (Ronald) ................................................. 948
Bensch, People v .................................................................. 859
Benton, People v (Gram) .......................................... 946, 1020
Berger Realty Group, Inc, McLean v ................................. 982
 TABLE OF CASES REPORTED xxvii

PAGE

Berlanga, People v ............................................................... 1040

Bernard, People v ................................................................ 1021
Berridge, People v ................................................................ 938
Berry, People v ..................................................................... 936
Berry, Twp of Grayling v ..................................................... 1132
Berst, People v ..................................................................... 976
Best, People v ....................................................................... 947
Bethany, People v ................................................................ 1042
Betten Chevrolet, Anaya v .................................................. 1133
Betts, People v ..................................................................... 1017
Bingaman, Shears v ............................................................ 882
Blackward v Attorney Grievance Comm ............................ 943
Blackwell v Franchi ............................................................. 1001
Blair, People v ...................................................................... 1012
Blond, People v .................................................................... 1043
Blue Cross & Blue Shield of Michigan, Tinman v ............ 1001
Boak, People v ...................................................................... 867
Bodnar v St John Providence, Inc ...................................... 994
Boles, Cheyne v .................................................................... 960
Boman v Catholic Diocese of Grand Rapids ...................... 1024
Bon-Ton Dep’t Stores, Barriger v ....................................... 1080
Bonds, People v .................................................................... 966
Bonds-Carrera, People v ..................................................... 1018
Bonner, People v .................................................................. 941
Boone, People v (Keysue) .................................................... 941
Boone, People v (Michael) ................................................... 1018
Borthwell, People v .............................................................. 1128
Boss Exotics, LLC, Castle v ................................................ 996
Bou-Melhem v Trumbull-Commonwealth LLC ................. 869
Bowman v St John Hospital and Medical Center ............. 1069
Bowman, People v (Joshua) ................................................ 1038
Bowman, People v (Kevin) .................................................. 1043
Bowser, People v .................................................................. 868
Boyd, People v ...................................................................... 1067
Brackney, People v ............................................................... 1069
Bracy v Nichols .................................................................... 1079
Bradford, People v (Brian) .................................................. 1015
Bradford, People v (Frederick) ............................................ 868
Bradley, People v ................................................................. 1018
xxviii 505 MICHIGAN REPORTS

PAGE

Breneman, People v ............................................................. 940

Bronner v City of Detroit .................................................... 1139
Bronson Health Care Group, Inc v Farm Bureau Mutual
Ins Co of Michigan .......................................................... 942
Brook Property Holding, LLC, Livonia Gateway
Investments, LLC v ........................................................ 869
Brooks v Brooks ................................................................... 996
Brooks, People v (Michael) .................................................. 1082
Brooks, People v (Willie) ..................................................... 867
Brooks-Johnson v US Bank National Ass’n ....................... 1041
Brown v Wolan ..................................................................... 1022
Brown, Packard v ................................................................ 1039
Brown, People v (Cavari) .................................................... 995
Brown, People v (Charles) ................................................... 1040
Brown, People v (Cleophas) ................................................ 1045
Brown, People v (Don) ......................................................... 1069
Brown, People v (Eddie) ...................................................... 870
Brown, People v (John) ....................................................... 1018
Brown, People v (Johnnie) .................................................. 996
Brown, People v (Lorenzo) .................................................. 869
Brown, People v (Michael) .................................................. 871
Brown, People v (Rashed) ................................................... 976
Brown, People v (Richard) .................................................. 984
Brown, People v (Rodney) ................................................... 1134
Brown, People v (Ronald) .................................................... 978
Brown, People v (Shukur) ................................................... 996
Brugger v Midland County Bd of Rd Commers ................ 1033
Buhl v City of Oak Park ..................................................... 1023
Bunch, People v ................................................................... 874
Burgess-Eilf, Minor, In re ................................................... 1069
Burklow, People v ................................................................ 975
Burks, People v (Johnathan) .................................... 873, 1083
Burns, People v (Kierelle) ................................................... 870
Burns, People v (Marlon) .................................................... 942
Burns, People v (Zachary) ................................................... 995
Burrell, People v .................................................................. 871
Burton v City of Detroit ...................................................... 980
Burton (City of), Arabbo v ................................................... 942
Burton, People v .................................................................. 869
 TABLE OF CASES REPORTED xxix

PAGE

Burton-Harris v Wayne County Clerk ............................... 1141

Butcher, People v ................................................................. 979
Butler, People v .................................................................... 996
Butters, People v .................................................................. 941
Butts, People v ..................................................................... 980
Byers, People v ..................................................................... 876

C
CC Keerl, Minor, In re ......................................................... 998
Cafarelli, People v ................................................................ 994
Cain, People v ...................................................................... 1016
Calhoun, People v (Samuel) ..................................... 1039, 1041
Callis, Price v ....................................................................... 975
Calloway, People v (Symone) .............................................. 1134
Calloway, People v (William) .............................................. 942
Calvey, People v ................................................................... 941
Campbell, People v .............................................................. 943
Can IV Packard Square LLC v Packard Square LLC ...... 1001
Cano-Monarrez, People v .................................................... 984
Cantu, People v .................................................................... 1013
Capital Area Transportation Auth, Graham v .................. 1081
Carlson, People v ................................................................. 1084
Carmack’s Collison, LLC, City of Detroit v ....................... 943
Carroll, People v .................................................................. 871
Carstea, The Romanian Orthodox Episcopate of
America v ......................................................................... 995
Carter, People v (Arcell) ...................................................... 947
Carter, People v (Javon) ...................................................... 870
Carter, People v (Mark) ....................................................... 995
Carter, People v (Taurean) .................................................. 1021
Cass County Treasurer, 2 Crooked Creek LLC v .............. 865
Castaneda, People v ............................................................ 976
Castillo, People v ................................................................. 1132
Castle v Boss Exotics, LLC ................................................. 996
Catholic Diocese of Grand Rapids, Boman v ..................... 1024
Cazel, Todd Stein & Associates v ....................................... 942
Ceasor, People v ................................................................... 1023
xxx 505 MICHIGAN REPORTS

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Certified Questions from the United States District

Court, Western District of Michigan,
Southern Division, In re ................................................. 1159
Cesarini v FCA US LLC ...................................................... 1015
Chandler, People v ............................................................... 1054
Chapman, People v .............................................................. 1128
Charles Egeler Reception & Guidance Center Warden,
Solomon v ........................................................................ 947
Charter Twp of Waterford, Kozlowski v ............................. 948
Charter Twp of West Bloomfield, Logan v ......................... 863
Cheatham, People v ............................................................. 869
Cheese, People v (Herman) .......................................... 976, 1045
Cheyne v Boles ..................................................................... 960
Christopher Ross, Jr, Minor, In re ...................................... 964
Citimortgage, Inc v Bambas ............................................... 1040
City of Allen Park, Allen Park Retirees Ass’n, Inc v ........ 1039
City of Burton, Arabbo v ..................................................... 942
City of Dearborn v Bank of America .................................. 867
City of Detroit v Carmack’s Collison, LLC ........................ 943
City of Detroit, Anesthesia Services Affiliates v ............... 1133
City of Detroit, Bronner v ................................................... 1139
City of Detroit, Burton v ..................................................... 980
City of Detroit, Detroit Alliance Against The
Rain Tax v ....................................................................... 962
City of Detroit, Honigman Miller Schwartz &
Cohn LLP v ..................................................... 284
City of Detroit, Smith v ....................................................... 884
City of Detroit, VHS Detroit Receiving Hospital, Inc v .... 975
City of Detroit Bd of Zoning Appeals, Peoples v ............... 1017
City of East Lansing v Wilson ............................................ 1132
City of Eastpointe, Williams v ............................................ 871
City of Flint, Collins v ......................................................... 1133
City of Flint, Kincaid v ........................................................ 882
City of Kalamazoo, Abbas v ................................................ 1042
City of Kalamazoo, Reidenbach v ....................................... 980
City of Kentwood, Damghani v ........................................... 1132
City of Livonia, Hughes v ................................................... 1038
City of Livonia, Wheeler v ........................................... 940, 1020
 TABLE OF CASES REPORTED xxxi

PAGE

City of Mason v Esquire Development &

Construction, Inc ............................................................. 869
City of Oak Park, Buhl v .................................................... 1023
City of Royal Oak, Iris LLC v ............................................. 949
City of Royal Oak, Paradiso v ............................................ 994
City of Saginaw, Bell v ................................................. 864, 997
City of Sterling Heights v Macomb Interceptor Drain
Drainage Dist .................................................................. 1040
City of Taylor, Ross Ed, LLC v ............................................ 1132
City of Warren v Hoti .......................................................... 999
Civil Service Comm, Marchke v ......................................... 974
Clark, People v ..................................................................... 869
Clay, People v ....................................................................... 994
Clemons, People v (Hannibal) ............................................. 871
Clemons, People v (Megael) ................................................ 1132
Clevenger, Switalski v ......................................................... 1022
Cliff, People v ....................................................................... 1133
Clingman, People v .............................................................. 936
Cobb v Parks ........................................................................ 1039
Cochran, People v ................................................................ 995
Cole, People v (Duncan) ...................................................... 1042
Cole, People v (Jimmie) ....................................................... 948
Cole, People v (Larry) .......................................................... 976
Cole, People v (Scott) ........................................................... 941
Coleman, People v ............................................................... 1134
Collins v City of Flint .......................................................... 1133
Collins, People v ................................................................... 945
Colon, People v ..................................................................... 1044
Colville, People v .................................................................. 931
Committee to Ban Fracking in Michigan v Bd of State
Canvassers ....................................................................... 1137
Community Mental Health Partnership of Southeast
Michigan v Michigan Dep’t of Health & Human
Services ............................................................................ 1067
Compass Healthcare PLC, Auto-Owners Ins Co v ............ 865
Composto v Albrecht ............................................................ 995
Comprehensive Medical Center, PLLC, Rodrigue v .......... 1041
Connolly, Twp of West Bloomfield v ................................... 934
Conservatorship of Barbara Ann Delbridge, In re ............ 1082
xxxii 505 MICHIGAN REPORTS

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Conservatorship of Marilyn Burhop, In re ........................ 974

Conservatorship of Robert Lee Mitchell, In re .................. 1082
Consol Rail Corp, White v ................................................... 997
Contempt of Nicholas Somberg, In re ................................ 863
Cooper, People v ................................................................... 1015
Coppola v Edward Rose & Sons, LLC ................................ 1016
Corker, People v ................................................................... 1017
Cornell, People v .................................................................. 975
Coronado, People v .............................................................. 1082
Corrections (Dep’t of), Bell v ............................................... 980
Corrections (Dep’t of), LaFountain v .................................. 976
Corrections (Dep’t of), Martin v .......................................... 973
Corrections (Dep’t of), Norman v ........................................ 1134
Corridore, People v .............................................................. 1022
Corser, People v ................................................................... 1041
Corzilius, People v ............................................................... 969
Cottingham, People v .......................................................... 1079
Council of Organizations & Others for Ed About
Parochiaid v State of Michigan ...................................... 982
County of Saginaw, Gottleber v .......................................... 947
Court of Appeals, Montano v .............................................. 1085
Court of Appeals, Oakes v ................................................... 1128
Cowles, People v .................................................................. 1017
Cramer v Transitional Health Services of Wayne ............. 1022
Crandall, People v ............................................................... 1134
Crews v Crews ..................................................................... 979
Crews, People v .................................................................... 1040
Cross, People v ..................................................................... 1133
Crudup, People v ................................................................. 947
Crum, Jerome v ................................................................... 1085
Cruz, People v ...................................................................... 1042
Culbertson v Attorney Grievance Comm ........................... 1044
Culbertson, People v ............................................................ 978
Cummings, People v ............................................................ 995
Cunningham, People v (Jake) ............................................. 947
Cunningham, People v (Travis) .......................................... 997
Curry, Minors, In re ............................................................. 989
 TABLE OF CASES REPORTED xxxiii

PAGE

D
DKE, Inc v Secura Ins Co ........................................ 969, 1083
DOA DOA, Inc v Primeone Ins Co ..................................... 1081
Dabish, People v .................................................................. 996
Dalrymple, People v ............................................................. 960
Damghani v City of Kentwood ............................................ 1132
Daniels, People v (James) ................................................... 942
Daniels, People v (Sean) ...................................................... 946
Davis v General Motors Corp ............................................. 872
Davis, People v (Adrian) ..................................................... 1083
Davis, People v (Chris) ........................................................ 1114
Davis, People v (Christopher) ............................................. 979
Davis, People v (Daryl) ........................................................ 1018
Davis, People v (Earl) .......................................................... 1016
Davis, People v (Earvin) ...................................................... 1134
Davis, People v (Gordon) ..................................................... 1081
Davis, People v (Joel) .......................................................... 1113
Davis, People v (John) ......................................................... 1000
Davis, People v (Joshua) ..................................................... 874
Dawkins, Tyson v ................................................................. 881
Dawn REO, LLC v Murphy ................................................ 1018
Dawson, People v ................................................................. 1082
DeBruyn, People v ............................................................... 1016
DeJong, Heller v .................................................................. 1015
DeLeon, People v ................................................................. 975
DeRuiter v Twp of Byron ................................... 130
Dean, Minors, In re ............................................................. 936
Dearborn (City of) v Bank of America ............................... 867
Dearborn Public Schools, Parker v ..................................... 1040
Deardoff, People v (Michael) ........................................ 884, 1020
Debruyne, People v .............................................................. 957
Defilippis v Redford Police Dep’t ........................................ 1133
Delmarter, People v ............................................................. 975
Demorrow, Kroll v ................................................................ 955
Denhof, People v .................................................................. 1041
Dep’t of Corrections, Bell v ................................................. 980
Dep’t of Corrections, LaFountain v .................................... 976
Dep’t of Corrections, Martin v ............................................ 973
Dep’t of Corrections, Norman v .......................................... 1134
xxxiv 505 MICHIGAN REPORTS

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Dep’t of Environmental Quality, Lakeshore Group v ....... 875

Dep’t of Health & Human Services, Donaldson v ............. 1044
Dep’t of Health & Human Services, Flatt v ...................... 947
Dep’t of Health & Human Services v Manke .................... 1110
Dep’t of Licensing & Regulatory Affairs, Forner v ........... 1041
Dep’t of Licensing & Regulatory Affairs/Unemployment
Ins Agency v Herzog ....................................................... 1127
Dep’t of Licensing & Regulatory Affairs/Unemployment
Ins Agency v Lucente ...................................................... 1127
Dep’t of State Police, Michigan Open Carry, Inc v .......... 1134
Dep’t of Talent & Economic Development/Unemployment
Ins Agency v Great Oaks Country Club ........................ 1056
Dep’t of Transportation v Hernandez ................................. 996
Dep’t of Treasury, TOMRA of North America,
Inc v ................................................................. 333
Detroit (City of) v Carmack’s Collison, LLC ...................... 943
Detroit (City of), Anesthesia Services Affiliates v ............. 1133
Detroit (City of), Bronner v ................................................. 1139
Detroit (City of), Burton v ................................................... 980
Detroit (City of), Detroit Alliance Against The
Rain Tax v ....................................................................... 962
Detroit (City of), Honigman Miller Schwartz
& Cohn LLP v ................................................. 284
Detroit (City of), Smith v .................................................... 884
Detroit (City of), VHS Detroit Receiving Hospital,
Inc v ................................................................................. 975
Detroit Alliance Against The Rain Tax v City of
Detroit .............................................................................. 962
Detroit Bd of Zoning Appeals (City of), Peoples v ............. 1017
Detroit East Community Mental Health, White v .... 863, 997
Detroit Tigers, Inc, Thornsberry v ..................................... 974
Detroit Transportation Corp, Estate of Michael
Whyte v ............................................................................ 1137
Deutsche Bank National Trust Co, Shareef v ................... 870
Deweerd, People v ................................................................ 973
Diallo, People v .................................................................... 1039
Dickey, People v ................................................................... 1015
Diehl, Minor, In re ............................................................... 1136
 TABLE OF CASES REPORTED xxxv

PAGE

Digital Gadgets, LLC, PCT Brands, LLC v ....................... 942

Dinwiddie, People v ............................................................. 995
Diroff, Maniaci v ................................................. 1
Dixon, People v .................................................................... 869
Doe, Pace v ........................................................................... 1084
Doering v Koppelberger ....................................................... 1081
Donaldson v Dep’t of Health & Human Services .............. 1044
Doster, People v ................................................................... 975
Douglas, Kondaur Capital Corp v ...................................... 941
Dowdy, People v ................................................................... 979
Downs, People v ................................................................... 868
Drielick, Huber v ................................................................. 874
Drielick, Hunt v ................................................................... 874
Drielick, Luczak v ................................................................ 874
Dudley, People v ................................................................... 1040
Dukes, People v .................................................................... 976
Dunchock, Luongo v ............................................................ 1041
Dunmire, People v ............................................................... 1018
Dupree, People v .................................................................. 1134
Duram, People v .................................................................. 941
Durbin, People v .................................................................. 1042
Durden, People v .................................................................. 869

E
E Padelsky, Minor, In re ...................................................... 863
EDS Care Mgt, LLC, White v ............................................. 948
EMC Development, Houle v ................................................ 1030
East Lansing (City of) v Wilson .......................................... 1132
Easter v Progressive Marathon Ins Co .............................. 880
Easterling, People v ............................................................. 943
Eastpointe (City of), Williams v ......................................... 871
Eaton County Rd Comm, Pearce v ..................................... 1031
Edmundson, People v .......................................................... 1017
Edward Rose & Sons, LLC, Coppola v ............................... 1016
Edwards, People v (Ronald) ................................................ 871
Edwards, People v (Wendell) .............................................. 1015
Elledge, People v .................................................................. 1042
Ellen, People v ..................................................................... 873
Ellis, People v ....................................................................... 976
xxxvi 505 MICHIGAN REPORTS

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Elowsky, People v ................................................................. 979

Engel, In re ........................................................................... 1018
Environmental Quality (Dep’t of), Lakeshore Group v ..... 875
Ernest, People v ................................................................... 1039
Erwin Cos, LLC, Great Lakes Capital Fund for Housing
Ltd Partnership XII v ........................ 877, 1029, 1052, 1079
Esquire Development & Construction, Inc v
City of Mason .................................................................. 869
Esquivel, People v ................................................................ 1082
Essex, People v ..................................................................... 871
Estate & Trust of Robert E Whitton, In re ........................ 1038
Estate of Daniel George Trueblood v P & G
Apartments, LLC ............................................................ 982
Estate of Louis G Basso, Jr, In re ...................................... 1022
Estate of Michael Whyte v Detroit Transportation Corp . 1137
Estate of Robert Berry Bullock, In re ................................ 940
Evans, Belser v .................................................................... 947
Evans, Meadowlark Builders, LLC v ................................. 869
Evans, People v (John) ........................................................ 996
Everest National Ins Co, Henry Ford Health System v ... 974
Everest National Ins Co, Omega Rehab Services,
LLC v ............................................................................... 974
Everest National Ins Co, Yang v ........................................ 1068
Ezell, People v ...................................................................... 869

F
FCA US LLC, Cesarini v ..................................................... 1015
Farm Bureau General Ins Co, Lingenfelter v ................... 1063
Farm Bureau General Ins Co of Michigan v
BeneBldg, LLC ................................................................ 955
Farm Bureau General Ins Co of Michigan, Irwin v .......... 1081
Farm Bureau Ins Co v TNT Equip, Inc ............................. 1015
Farm Bureau Mutual Ins Co of Michigan, Bronson
Health Care Group, Inc v ............................................... 942
Farm Bureau Mutual Ins Co of Michigan, Stolaj v .......... 947
Farmers Ins Exch, Turner v ............................................... 874
Faubert, People v ................................................................. 1058
Fezzey, People v ................................................................... 943
 TABLE OF CASES REPORTED xxxvii

PAGE

Fieger & Fieger, PC, Law Offices of Jeffrey Sherbow,

PC v .................................................................................. 982
Fieger, Kott-Millard v .......................................................... 995
Fieger, Long v ...................................................................... 995
Fields, People v .................................................................... 870
Finley v Governor of Michigan ........................................... 1128
Finnie, People v ................................................................... 946
Fischer, Sterling Benefits, LLC v ....................................... 965
Fisher, Noel v ....................................................................... 1133
Fitzgerald, People v ............................................................. 996
Flakiewicz, People v ............................................................ 1018
Flatt v Dep’t of Health & Human Services ....................... 947
Flint (City of), Collins v ...................................................... 1133
Flint (City of), Kincaid v ..................................................... 882
Floen v Lewin ....................................................................... 1082
Flores, People v .................................................................... 1043
Ford, People v (Joshua) ....................................................... 947
Ford, People v (Marcus) ...................................................... 974
Ford, People v (William) ...................................................... 942
Forner v Allendale Charter Twp Supervisor ..................... 1068
Forner v Dep’t of Licensing & Regulatory Affairs ............ 1041
Forsyth, People v ................................................................. 869
Fortuna, People v ................................................................. 996
Foster v Foster ................................................... 151
Foster, People v .................................................................... 870
Fox, People v ........................................................................ 1042
Franchi, Blackwell v ............................................................ 1001
Franklin, People v ................................................................ 975
Franzel, Minors, In re ......................................................... 936
Freeman, In re ..................................................................... 1039
Fremont Ins Co, Jawad A Shah, MD, PC v ....................... 995
Friedman, Grievance Administrator v ............................... 996
Frill, People v ....................................................................... 946
Frye, People v (Adonis) ....................................................... 1081
Frye, People v (Carl) ............................................................ 979
Fuller, People v .................................................................... 1128
Furline, People v ................................................ 16
Furlong, People v ................................................................. 980
xxxviii 505 MICHIGAN REPORTS

PAGE

G
Gabites, Wilson v ................................................................. 1015
Gabor, Adkins v .................................................................... 1041
Gadomski, People v ............................................................. 871
Gamet, People v ................................................................... 976
Gappy v Gappy .................................................................... 1042
Garcia, People v ................................................................... 975
Gardiner, People v ............................................................... 1039
Gardner, People v ................................................................ 882
Garlinger, People v .............................................................. 1082
Garrison, People v ............................................................... 880
Garza, People v .................................................................... 1083
Gaston, People v .................................................................. 868
Gates, People v (Lakendrick) .............................................. 996
Gates, People v (Mark) ........................................................ 977
Gaydos v Bender ........................................................... 883, 1129
Geesey, People v ................................................................... 964
Geeter, In re ......................................................................... 1019
Geico Indemnity Co, Hahn v .............................................. 1008
Geico Indemnity Co, Spine Specialists of
Michigan, PC v ................................................................ 1016
General Motors Corp, Davis v ............................................ 872
German, People v ................................................................. 1042
Gilmore, People v ................................................................. 965
Giuchici, People v ................................................................ 996
Glenn, People v (Jarvis) ...................................................... 996
Glenn, People v (Mitchell) ................................................... 1135
Global Products, Inc v Mayser Polymer USA, Inc ............ 994
Gnat, People v ...................................................................... 1034
Goga, People v ...................................................................... 998
Gomez, People v ................................................................... 870
Good, People v ...................................................................... 1082
Gordon, People v (D’Ante) ................................................... 1128
Gordon, People v (Ernest) ............................................ 870, 1020
Gordon, People v (Johnnie) ................................................. 941
Goree, People v .................................................................... 1134
Gosnick, People v ................................................................. 1008
Gottleber v County of Saginaw ........................................... 947
Gould, People v (Rand) ...................................... 946, 1044, 1045
 TABLE OF CASES REPORTED xxxix

PAGE

Governor, A Clean Cigarette Corp v ................................... 943

Governor, House of Representatives v ...................... 1142, 1166
Governor of Michigan, Finley v .......................................... 1128
Graham v Capital Area Transportation Auth ................... 1081
Graham, People v (Jason) ................................................... 1042
Graham, People v (Martin) ................................................. 1043
Graham, People v (Willie) ................................................... 870
Granderson, People v .......................................................... 872
Gray v Lakeland Specialty Hospital at Berrien Center ... 882
Gray, People v ...................................................................... 1134
Great Lakes Capital Fund for Housing Ltd Partnership
XII v Erwin Cos, LLC ........................ 877, 1029, 1052, 1079
Great Oaks Country Club, Dep’t of Talent & Economic
Development/Unemployment Ins Agency v .................. 1056
Green, People v (Jimmy) ..................................................... 1043
Green, People v (John) ........................................................ 1133
Green, People v (Michael) ................................................... 1083
Green, People v (Willie) ....................................................... 946
Gresley, Muhammad v ......................................................... 1015
Grice, People v ..................................................................... 1042
Grievance Administrator v Beck ........................................ 948
Grievance Administrator v Friedman ................................ 996
Grievance Administrator v McCarthy ................................ 1042
Griffin, People v ................................................................... 940
Grillo-Rogers, Williams v .................................................... 1040
Grimes, People v .................................................................. 974
Grohowski, Kelly v .............................................................. 1137
Grove, People v .................................................................... 995
Grover, Stowell v .................................................................. 1011
Guardianship of Barbara Ann Delbridge, In re ................. 1082
Guardianship of Orta, Minors, In re .................................. 1137
Guardianship of Robert Lee Mitchell, In re ...................... 1082
Gurley, People v ................................................................... 870
Guthrie, People v ................................................................. 1038
Guzall v Seifman ................................................................. 1080
Gwinn, People v ................................................................... 947

H
HM McClinton, Minor, In re ............................................... 880
xl 505 MICHIGAN REPORTS

PAGE

Hacker, People v .................................................................. 1044

Hahn v Geico Indemnity Co ............................................... 1008
Hailey, People v .................................................................... 1021
Haines, People v .................................................................. 871
Hakola, People v .................................................................. 1040
Hall, People v (Brian) .......................................................... 996
Hall, People v (Daveaunta) ................................................. 1082
Hall, People v (Jacobie) ....................................................... 965
Hall, People v (Phillip) ........................................................ 1041
Hall, People v (William) ...................................................... 869
Hamady v Auto Owners Ins Co .......................................... 1081
Hamilton v Northern Imaging Associates ......................... 869
Hammon, Bauer v ................................................................ 1011
Hammonds, People v (Billy) ................................................ 979
Hammonds, People v (Calvin) ............................................ 977
Hampton, People v ............................................................... 939
Hancock, People v ................................................................ 1134
Haney v Haney .................................................................... 946
Hannosh v Hannosh ............................................................ 942
Hardy v Secretary of State ................................................. 946
Hardy, People v .................................................................... 870
Hare, People v (Sergio) ........................................................ 1043
Hare, People v (Timothy) .................................................... 1127
Hargrove, People v ............................................................... 1022
Harper v Ashgrove Apartments .......................................... 1017
Harris, People v (Anthony) ................................................. 1134
Harris, People v (Isaac) ....................................................... 976
Harris, People v (Jair) ......................................................... 874
Harris, People v (Larry) ...................................................... 1042
Hartland Glen Development, LLC v Twp of Hartland ..... 1133
Hartmeier, Lamkin v ........................................................... 1018
Harvey, People v (Eric) ........................................................ 941
Harvey, People v (Keith) ..................................................... 872
Harvey, People v (Kim) ........................................................ 1015
Hastings Mutual Ins Co, Michigan Head & Spine
Institute, PC v ................................................................. 974
Hathaway, People v ............................................................. 1041
Hawkins v Norfolk Southern Railway Co .......................... 1016
Hawkins, People v (Dustin) ................................................ 1040
 TABLE OF CASES REPORTED xli

PAGE

Hawkins, People v (Robert) ................................................ 1081

Hawkins, People v (Shane) ................................................. 937
Hawks, People v ................................................................... 941
Hayes, People v (Leonard) .................................................. 1082
Haynes, People v .................................................................. 882
Haynie, People v .................................................................. 1096
Haywood, People v (Albert) ................................................. 1082
Haywood, People v (Brian) .................................................. 1082
Haywood, People v (Deandre) ............................................. 1067
Head, People v ..................................................................... 975
Health & Human Services (Dep’t of), Donaldson v .......... 1044
Health & Human Services (Dep’t of), Flatt v .................... 947
Healy, Hicks v ...................................................................... 1043
Heard, People v .................................................................... 1043
Heck, People v ...................................................................... 948
Heller v DeJong ................................................................... 1015
Hendershott, People v ......................................................... 868
Hendrix, People v ................................................................ 1043
Henry, People v .................................................................... 1017
Henry Ford Health System v Everest National Ins Co .... 974
Henry Ford Health System, Light v .................................. 965
Henry Ford Macomb Hospital Corp, Bak v ....................... 1082
Herman, People v ................................................................ 937
Hernandez, Dep’t of Transportation v ................................ 996
Herron v Monroe Motorsports, Inc ..................................... 989
Hertz Schram, PC, Smith v ................................................ 1038
Herzog, Dep’t of Licensing & Regulatory Affairs/
Unemployment Ins Agency v ......................................... 1127
Hibbler, People v .................................................................. 1001
Hicks v Healy ....................................................................... 1043
Higgins v Traill .................................................................... 1046
Hiler, People v ...................................................................... 940
Hill, People v (Andrew) ....................................................... 941
Hill, People v (Craig) ........................................................... 1018
Hill, People v (Tyrone) ......................................................... 1043
Hillard, People v .................................................................. 995
Hills v Post ........................................................................... 1043
Hilton, People v .................................................................... 1015
Hindenach v Olivet College ................................................ 1015
xlii 505 MICHIGAN REPORTS

PAGE

Hinton, People v .................................................................. 940

Hite, People v (Troy) ..................................................... 940, 1020
Hixon v Attorney Grievance Comm .................................... 948
Hoggard, People v ................................................................ 1132
Holland, People v ................................................................. 975
Holley, People v .................................................................... 938
Hollis, People v .................................................................... 1132
Holman, People v ................................................................. 974
Holmes, People v .................................................................. 856
Holy Ascension Orthodox Christian Monastery,
Romanian Orthodox Episcopate of America v .............. 980
Holy Trinity Romanian Orthodox Monastery v
Romanian Orthodox Episcopate of America ................ 980
Honigman Miller Schwartz & Cohn LLP v
City of Detroit ................................................. 284
Hoof, People v ...................................................................... 947
Horton, People v .................................................................. 1082
Hoskins, People v ................................................................. 1134
Hoti, City of Warren v ........................................................ 999
Houle v EMC Development ................................................. 1030
House of Representatives, Bauer v .................................... 1042
House of Representatives Request for Advisory
Opinion Regarding Constitutionality of 2018
PA 368 and 369, In re ..................................................... 884
House of Representatives v Governor ....................... 1142, 1166
Houston, People v (Amen) ................................................... 871
Houston, People v (Sarantay) ............................................. 967
Howard, People v ................................................................. 995
Howell, People v ................................................................... 975
Howerton v Attorney Grievance Comm ............................. 997
Hubbard, People v ............................................................... 1128
Huber v Drielick .................................................................. 874
Hudson v Kleuessendorf ...................................................... 946
Hudson, People v ................................................................. 975
Hughes v City of Livonia .................................................... 1038
Hughes, People v (Howard) ................................................. 1132
Hughes, People v (Justin) ................................................... 976
Hughes, People v (Kristopher) ............................................ 855
Hulbert, People v ................................................................. 868
 TABLE OF CASES REPORTED xliii

PAGE

Hunt v Drielick .................................................................... 874

Huron Valley Correctional Facility Warden, Malcom v .... 977
Hutchinson v Ingham County Health Dep’t ...................... 982
Hyundai Motor America, Krolczyk v .................................. 1088

I
IM Long, Minor, In re .......................................................... 876
IR Hugo, Minor, In re .......................................................... 1020
IV Melendez, Minor, In re ................................................... 856
IW v MM .................................................................... 1080, 1129
Imig, Menard v .................................................. 858, 943, 1137
In re A Schepperly, Minor ................................................... 1027
In re Affleck/Kutzleb/Simpson, Minors .............................. 858
In re Altantawi, Minors ....................................................... 858
In re Anonymous Judge ...................................................... 1127
In re Application of Consumers Energy Co to
Increase Rates ................................................................. 871
In re Application of DTE Electric Co to Increase Rates ... 871
In re Application of Indiana Michigan Power Co to
Increase Rates ................................................................. 1080
In re Burgess-Eilf, Minor .................................................... 1069
In re CC Keerl, Minor ......................................................... 998
In re Certified Questions from the United States District
Court, Western District Court of Michigan,
Southern Division ........................................................... 1159
In re Christopher Ross, Jr, Minor ...................................... 964
In re Conservatorship of Barbara Ann Delbridge ............. 1082
In re Conservatorship of Marilyn Burhop ......................... 974
In re Conservatorship of Robert Lee Mitchell ................... 1082
In re Contempt of Nicholas Somberg ................................. 863
In re Curry, Minors .............................................................. 989
In re Dean, Minors .............................................................. 936
In re Diehl, Minor ................................................................ 1136
In re E Padelsky, Minor ...................................................... 863
In re Engel ............................................................................ 1018
In re Estate & Trust of Robert E Whitton ......................... 1038
In re Estate of Louis G Basso, Jr ....................................... 1022
In re Estate of Robert Berry Bullock ................................. 940
In re Franzel, Minors .......................................................... 936
xliv 505 MICHIGAN REPORTS

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In re Freeman ...................................................................... 1039

In re Geeter .......................................................................... 1019
In re Guardianship of Barbara Ann Delbridge .................. 1082
In re Guardianship of Orta, Minors ................................... 1137
In re Guardianship of Robert Lee Mitchell ....................... 1082
In re HM McClinton, Minor ................................................ 880
In re House of Representatives Request for Advisory
Opinion Regarding Constitutionality of 2018
PA 368 & 369 ................................................................... 884
In re IM Long, Minor ........................................................... 876
In re IR Hugo, Minor ........................................................... 1020
In re IV Melendez, Minor .................................................... 856
In re Ingram, Minors ........................................................... 981
In re JAI Satchell-Venta, Minor ......................................... 945
In re Jones/Gilkes, Minors .................................................. 1066
In re Juarez .......................................................................... 870
In re Kahlilia Y Davis, Judge 36th Dist Court ................. 1127
In re Lewis, Minor ............................................................... 1039
In re Lipscomb ..................................................................... 1031
In re Louise K Van Slooten Revocable Living Trust ......... 1041
In re MLA Fulton, Minor .................................................... 1018
In re Margaret E White Trust ............................................ 1015
In re Marion Van Slooten Trust .......................................... 1041
In re Mason/Lasota, Minors ................................................ 1139
In re McGee/Spencer, Minors .............................................. 858
In re Montano ...................................................................... 1139
In re NJ Pender, Minor ....................................................... 988
In re Osenbaugh, Minors .................................................... 877
In re Parole of John Emil Hritz .......................................... 937
In re Petition of Attorney General for Subpoenas ............. 939
In re Petition of Wayne County Treasurer for
Foreclosure ...................................................................... 871
In re Prater/Hickman, Minors ............................................ 1029
In re Proctor ......................................................................... 869
In re RC, Minor .................................................................... 884
In re Reliability Plans of Electric Utilities for
2017–2021 ....................................................... 97
In re Reliability Plans of Electric Utilities for
2017–2021 ........................................................................ 1085
 TABLE OF CASES REPORTED xlv

PAGE

In re Rivera-Izaguirre/Fernandez/Mendez-Izaguirre,
Minors .............................................................................. 949
In re Robert E Whitton Revocable Trust ........................... 956
In re Ronnie Dante Thomas ................................................ 978
In re SL Russell, Minor ....................................................... 863
In re Schwartz, Minors ........................................................ 1029
In re Senate Request for Advisory Opinion Regarding
Constitutionality of 2018 PA 368 & 369 ........................ 884
In re Smith ........................................................................... 1134
In re Terrell .......................................................................... 1019
In re Theresa M Brennan, Judge 53rd Dist Court ........... 851
In re Tippins ................................................................. 948, 1020
In re Vuocolo, Minors ........................................................... 1020
In re Wright, Minors ............................................................ 856
In re XD Berry, Minor ......................................................... 1038
Incorp Services, Inc, Abraham v ......................................... 980
Ingham County Health Dep’t, Hutchinson v ..................... 982
Ingham County Sheriff, Askew v ....................................... 1041
Ingram, Minors, In re .......................................................... 981
Innovative Payroll Processing, Inc, Metro Healthcare
Services, Inc v ................................................................. 1133
Iris LLC v City of Royal Oak .............................................. 949
Irwin v Farm Bureau General Ins Co of Michigan ........... 1081
Ison, People v ....................................................................... 946

J
JAI Satchell-Venta, Minor, In re ......................................... 945
Jackson, People v (Antonio) ................................................ 874
Jackson, People v (Arnett) .................................................. 868
Jackson, People v (Darryl) .................................................. 1043
Jackson, People v (Dequaries) ............................................ 941
Jackson, People v (Douglas) ................................................ 997
Jackson, People v (Garry) ................................................... 1044
Jackson, People v (Jammal) ................................................ 1133
Jackson, People v (Jermaine) ............................................. 873
Jackson, People v (Marlon) ................................................. 974
Jackson, People v (Michael) ................................................ 1058
Jackson, People v (Robert) .................................................. 978
Jackson, People v (Steven) .................................................. 1133
xlvi 505 MICHIGAN REPORTS

PAGE

James Twp v Rice ................................................................ 1038

Jamison-Laws, People v ...................................................... 1134
Jaros v VHS Harper-Hutzel Hospital ................................ 1137
Jaskierny, Maitland v .......................................................... 960
Jasper, People v ................................................................... 870
Jawad A Shah, MD, PC v Fremont Ins Co ........................ 995
Jeffries, People v .................................................................. 941
Jemison, People v ............................................... 352
Jenkins, People v (Alvin) .................................................... 1142
Jenkins, People v (Kenneth) ............................................... 1039
Jenkins, People v (Reueben) ............................................... 947
Jenkins, People v ................................................ 16
Jensen, People v ................................................................... 1134
Jerome v Crum .................................................................... 1085
Johnson v Ziyadeh ............................................................... 980
Johnson, People v (Chad) .................................................... 871
Johnson, People v (Darren) ................................................. 1041
Johnson, People v (David) ................................................... 1043
Johnson, People v (Derrick) ................................................ 940
Johnson, People v (Edward) ................................................ 1132
Johnson, People v (Jermaine) ............................................. 1134
Johnson, People v (Lamonte) .............................................. 1042
Johnson, People v (Lovily) .................................................. 882
Johnson, People v (Maurice) ............................................... 1134
Johnson, People v (Robert) .................................................. 994
Johnson, People v (Teri) ...................................................... 1132
Johnson, People v (Tonnie) .................................................. 979
Johnson, People v (Troy) ..................................................... 868
Johnson, Robertson v .......................................................... 1011
Jones, People v (Cordell) ..................................................... 1015
Jones, People v (Deangelo) .................................................. 1016
Jones, People v (Donshey) ................................................... 996
Jones, People v (Dontaye) ................................................... 870
Jones, People v (Jonathon) .................................................. 1082
Jones, People v (Kyle) ......................................................... 1053
Jones, People v (Les) ........................................................... 869
Jones, People v (Lorimer) .................................................... 870
Jones, People v (Martin) ..................................................... 1039
Jones, People v (Timothy) ................................................... 1042
 TABLE OF CASES REPORTED xlvii

PAGE

Jones-Butler, People v ......................................................... 869

Jones/Gilkes, Minors, In re ................................................. 1066
Jordan, People v ................................................................... 978
Joseph, People v ................................................................... 868
Juarez, In re ......................................................................... 870
Judicial Tenure Comm, Kizer v .......................................... 1019
Jurczak v Mount Clemens Investment Group .................. 1081

K
K2M Group, LLC, Lansing Parkview, LLC v ............. 871, 1040
Kabongo, People v ................................................................ 999
Kahlilia Y Davis, Judge 36th District Court, In re ........... 1127
Kalamazoo (City of), Abbas v .............................................. 1042
Kalamazoo (City of), Reidenbach v .................................... 980
Kariem, People v .................................................................. 943
Katzman, People v ............................................................... 1053
Keating, People v ................................................................. 1015
Keister, People v (Jason) .......................................... 1014, 1137
Kelley v Attorney Grievance Comm ................................... 1044
Kelly v Grohowski ............................................................... 1137
Kelly, People v (Walter) ............................................ 933, 1020
Kelso-Guyton v Attorney Grievance Comm ....................... 979
Kemp, People v .................................................................... 942
Kennard, People v ................................................................ 1017
Kennedy, People v (Joeviair) ............................................... 1043
Kennedy, People v (Johnny) ................................................ 1031
Kennedy, People v (Robert) ................................................. 870
Kenney, People v .................................................................. 995
Kentwood (City of), Damghani v ........................................ 1132
Kern, Punturo v ................................................................... 866
Keyser, Trenkamp v ............................................................. 1040
Kickham Hanley PLLC v Oakland County ....................... 1039
Killing, People v ................................................................... 1017
Kinachtchouk, Szekely v ..................................................... 1069
Kincaid v City of Flint ......................................................... 882
King, People v (Deandre) ......................................... 871, 1083
King, People v (Frank) ........................................................ 851
King, People v (Kevin) ......................................................... 1080
King, People v (Leonard) ..................................................... 1015
xlviii 505 MICHIGAN REPORTS

PAGE

Kircher, People v .................................................................. 1132

Kizer v Attorney Grievance Comm ..................................... 1019
Kizer v Judicial Tenure Comm ........................................... 1019
Kleuessendorf, Hudson v ..................................................... 946
Knack, People v ................................................................... 942
Knauss, People v .................................................................. 1132
Knox, People v ..................................................................... 1016
Kobasic, People v ................................................................. 980
Kohls, People v ..................................................................... 965
Kondaur Capital Corp v Douglas ....................................... 941
Koppelberger, Doering v ...................................................... 1081
Koryal, People v ................................................................... 978
Kott-Millard v Fieger .......................................................... 995
Kozlowski v Charter Twp of Waterford .............................. 948
Kreason, People v ................................................................ 978
Krestel, People v .................................................................. 1139
Krok, People v ...................................................................... 975
Krolczyk v Hyundai Motor America ................................... 1088
Kroll v Demorrow ................................................................ 955
Krukowski, People v ............................................................ 998
Krzeminski, People v ........................................................... 1083
Kuhlgert v Michigan State Univ ........................................ 1027
Kurowicki, People v ............................................................. 1081

L
LaBadie, People v ................................................................ 978
LaFountain v Dep’t of Corrections ..................................... 976
LaRose, People v .................................................................. 1016
LaValley, People v ................................................................ 976
Labelle, People v .................................................................. 1127
Lahdir, People v ................................................................... 1044
Lakeland Specialty Hospital at Berrien Center, Gray v .. 882
Lakeshore Group v Dep’t of Environmental Quality ........ 875
Lamkin v Hartmeier ............................................................ 1018
Lampe, People v ................................................................... 982
Lance, People v .................................................................... 977
Landers, People v ................................................................ 943
Lang, People v ...................................................................... 977
Lansing Parkview, LLC v K2M Group, LLC .............. 871, 1040
 TABLE OF CASES REPORTED xlix

PAGE

Larkin, People v ................................................................... 1042

Lately, People v .................................................................... 1041
Law Offices of Jeffrey Sherbow, PC v Fieger &
Fieger, PC ........................................................................ 982
Lawson, People v ................................................................. 870
Lay, People v ........................................................................ 1043
Leach, People v .................................................................... 1044
League of Women Voters of Michigan v Secretary
of State ............................................................................. 988
League of Women Voters v Secretary of State .................. 931
Leaphart v State of Michigan .................................. 974, 1045
Lech, People v ...................................................................... 996
Lee, People v ........................................................................ 941
Lehre, People v .................................................................... 942
Leigh, People v ..................................................................... 978
Lemons, People v ................................................................. 1084
Levanduski, People v ........................................................... 1040
Lewin, Floen v ...................................................................... 1082
Lewis, Minor, In re .............................................................. 1039
Lewis, People v (Arndola) ................................................... 1082
Lewis, People v (John) ......................................................... 1135
Licensing & Regulatory Affairs (Dep’t of), Forner v ......... 1041
Light v Henry Ford Health System ................................... 965
Lingenfelter v Farm Bureau General Ins Co .................... 1063
Lipscomb, In re .................................................................... 1031
Lipsey, People v .................................................................... 989
Livings v Sage’s Investment Group, LLC .......................... 985
Livonia (City of), Hughes v ................................................. 1038
Livonia (City of), Wheeler v ......................................... 940, 1020
Livonia Gateway Investments, LLC v Brook Property
Holding, LLC ................................................................... 869
Lockard v Mayco International, LLC .......................... 941, 1044
Logan v Charter Twp of West Bloomfield .......................... 863
Long v Fieger ....................................................................... 995
Long, People v ...................................................................... 1042
Lopez, People v .................................................................... 882
Louise K Van Slooten Revocable Living Trust, In re ........ 1041
Lowry, People v .................................................................... 1019
Luberda, People v ................................................................ 1044
l 505 MICHIGAN REPORTS

PAGE

Lucas, Wayne County Jail Inmates v ................................ 1142

Lucente, Dep’t of Licensing & Regulatory Affairs/
Unemployment Ins Agency v ......................................... 1127
Luczak v Drielick ................................................................. 874
Ludowese v Trombley-Martin ............................................. 964
Luongo v Dunchock ............................................................. 1041
Lyle, People v ....................................................................... 1081
Lynch v State of Michigan .................................................. 980

M
MLA Fulton, Minor, In re .................................................... 1018
MM, IW v ................................................................... 1080, 1129
Macauley, People v ............................................................... 1039
Macomb Interceptor Drain Drainage Dist, City of
Sterling Heights v ........................................................... 1040
Maddox, People v ................................................................. 980
Madison v AAA of Michigan ................................................ 1030
Magee, People v ................................................................... 1083
Magnant, People v ............................................................... 1000
Maitland v Jaskierny .......................................................... 960
Major-Lang, People v ........................................................... 976
Malcom v Huron Valley Correctional Facility Warden ..... 977
Malcom, People v ................................................................. 979
Maleski, People v ................................................................. 996
Malone, People v (Charles) ................................................. 996
Malone, People v (Darius) ................................................... 941
Malone, People v (Kesia) ..................................................... 857
Maniaci v Diroff .................................................. 1
Manke, Dep’t of Health & Human Services v ................... 1110
Mannarino, People v (Melissa) ................................ 1018, 1019
Manning, People v (Corey) .................................................. 1017
Manning, People v (Robin) .................................................. 881
Manwell, People v ................................................................ 1135
Map Mechanical Contractors, Inc, Skanska
USA Bldg Inc v ............................................... 368
Maples v State of Michigan ................................................ 1088
Marchese, People v .............................................................. 1039
Marchke v Civil Service Comm .......................................... 974
 TABLE OF CASES REPORTED li

PAGE

Margaret E White Trust, In re ........................................... 1015

Marion Van Slooten Trust, In re ......................................... 1041
Markel v William Beaumont Hospital ............................... 961
Marquardt v Umashankar .................................................. 1084
Marshall, People v ............................................................... 1043
Martin v Dep’t of Corrections ............................................. 973
Martin, People v (Deandre) ................................................. 977
Martin, People v (Johnathon) ............................................. 869
Martin, People v (Marcus) .................................................. 1021
Martin, People v (Rodney) .................................................. 1040
Martin-Levier, People v ....................................................... 871
Martinez v TMF II Waterchase, LLC ................................ 943
Martinez, People v (Juan) ................................................... 1138
Martinez, People v (Robert) ......................................... 946, 1045
Masalmani, People v ................................................. 1090, 1142
Mason (City of) v Esquire Development &
Construction, Inc ............................................................. 869
Mason/Lasota, Minors, In re ............................................... 1139
Massey, People v .................................................................. 940
Matheson v Schmitt ............................................................. 998
Mathews, People v ............................................................... 1114
Matthews, People v .............................................................. 868
Matthews, White v .............................................................. 947
Matti, People v ..................................................................... 1038
Matuk, Afholter v ................................................................. 982
Mayco International, LLC, Lockard v ......................... 941, 1044
Mayo, People v ..................................................................... 1044
Mayser Polymer USA, Inc, Global Products, Inc v ........... 994
McAdams, People v .............................................................. 1018
McBride, People v ................................................................ 1018
McCallum v Mid-Michigan Physicians, PC ................ 878, 880
McCants, People v ............................................................... 868
McCarthy, Grievance Administrator v ............................... 1042
McClinton, People v ............................................................. 1082
McCollum, People v ............................................................. 969
McCoy, People v (Deonte) .................................................... 1041
McCoy, People v (Robert) .................................................... 996
McCree, People v ................................................................. 868
McCullough, People v .......................................................... 976
lii 505 MICHIGAN REPORTS

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McDade v Progressive Ins Co ............................................. 1085

McElmurry v Rugg .............................................................. 941
McFall, People v ................................................................... 942
McFarland, People v ............................................................ 870
McFarlane, People v ............................................................ 1059
McFolley, People v ............................................................... 868
McGee/Spencer, Minors, In re ............................................. 858
McGowan, People v .............................................................. 1043
McGruder, People v ............................................................. 869
McJunkin, People v ............................................................. 883
McLaren Regional Medical Center, Auld v ........................ 869
McLean v Berger Realty Group, Inc .................................. 982
McMillen, People v (Clarence) ..................................... 876, 997
McNeal, People v ................................................................. 1014
McNees, People v ................................................................. 1041
McRunels, People v .............................................................. 976
Mead, People v ..................................................................... 1016
Meadowlark Builders, LLC v Evans .................................. 869
Medendorp, People v ........................................................... 978
Medina, People v .................................................................. 1018
Megerian v United Services Automobile Ass’n ......... 935, 1083
Meijer Great Lakes Ltd Partnership, Wilson v ................. 1084
Mejia, People v ..................................................................... 963
Mellen, People v ................................................................... 1018
Menard v Imig ................................................... 858, 943, 1137
Mercer, People v ................................................................... 940
Merlo, People v .................................................................... 995
Merritt, Smith v ................................................................... 995
Messenger, People v ............................................................. 995
Metro Healthcare Services, Inc v Innovative Payroll
Processing, Inc ................................................................ 1133
Michigan Dep’t of Health & Human Services,
Community Mental Health Partnership of Southeast
Michigan v ....................................................................... 1067
Michigan Head & Spine Institute, PC v Hastings
Mutual Ins Co ................................................................. 974
Michigan Open Carry, Inc v Dep’t of State Police ............ 1134
Michigan State Univ, Kuhlgert v ....................................... 1027
Michigan State Univ, Ostendorf v ...................................... 1027
 TABLE OF CASES REPORTED liii

PAGE

Mid-Michigan Physicians, PC, McCallum v ............... 878, 880

Midland County Bd of Rd Commers, Brugger v ............... 1033
Miles Trucking & Excavating Co, Swain v ........................ 1039
Miller v WB Holdings, LLC ................................................ 1039
Miller, People v (Aaron) ...................................................... 1017
Miller, People v (Columbus) ................................................ 1017
Miller, People v (Dwayne) ................................................... 1134
Miller, People v (Jaymes) .................................................... 1019
Miller, People v (Tanino) ..................................................... 942
Mitchell v Attorney Grievance Comm ................................ 1135
Mitchell, RCS Recovery Services, LLC v ........................... 941
Moncrief, People v ............................................................... 996
Monroe Motorsports, Inc, Herron v .................................... 989
Montano v Court of Appeals ............................................... 1085
Montano, In re ..................................................................... 1139
Montano, Wimmer v ............................... 981, 982, 1083, 1129
Montgomery, People v .......................................................... 1042
Montoya-Sancen, People v .................................................. 870
Moore v Moore ..................................................................... 1017
Moore v Ocwen Loan Servicing .......................................... 1134
Moore, People v (Demetrius) ............................................... 1016
Moore, People v (Marquis) .................................................. 871
Moore, People v (Martell) .................................................... 1017
Moore, People v (Terrence) .................................................. 976
Moore, People v (Tyreese) ................................................... 975
Moore, People v (Wayne) ..................................................... 1043
Moore, People v (Wesley) ..................................................... 978
Moses, People v .................................................................... 979
Mount Clemens Investment Group, Jurczak v ................. 1081
Muhammad v Gresley ......................................................... 1015
Mullins, People v (Billy) ...................................................... 996
Mullins, People v (George) .................................................. 863
Muntean, People v ............................................................... 1020
Murphy, Dawn REO, LLC v ................................................ 1018
Mustafa, People v ................................................................ 1134

N
NJ Pender, Minor, In re ...................................................... 988
Nabro Holdings, Inc v Subway Real Estate, LLC ............. 864
liv 505 MICHIGAN REPORTS

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Naccarato, People v ............................................................. 877

Navarrete, People v ............................................................. 996
Neal, People v ...................................................................... 1083
Neff, People v ....................................................................... 865
Nelson, People v ................................................................... 1081
Newhouse v Baraga Correctional Facility Warden ........... 977
Newmeyer v Bank of America ............................................ 1081
Nichol, People v ................................................................... 1053
Nichols, Bracy v ................................................................... 1079
Nichols, People v (Elmore) .................................................. 1083
Nickleberry, People v ........................................................... 1041
Nino, People v ...................................................................... 1067
Nodarse, People v ................................................................ 1018
Noel v Fisher ........................................................................ 1133
Noel v Scholastic Solutions, LLC ....................................... 1133
Noel, People v ....................................................................... 1017
Norfleet, People v ................................................................. 948
Norfolk Southern Railway Co, Hawkins v ......................... 1016
Norman v Dep’t of Corrections ........................................... 1134
Norman, People v ................................................................ 1043
North Star Ranch, Pelc v .................................................... 869
Northern Imaging Associates, Hamilton v ........................ 869
Northern Michigan Univ, Pike v ........................................ 876
Nutting, People v ................................................................. 975
Nylaan v Wolverine World Wide, Inc .......................... 931, 954
Nyman v Thomson Reuters Holdings ................................ 1069

O
O’Neal, People v ................................................................... 1014
Oak Park (City of), Buhl v .................................................. 1023
Oakes v Court of Appeals .................................................... 1128
Oakland County, Kickham Hanley PLLC v ....................... 1039
Oakland County, Rafaeli, LLC v ....................... 429
Ocwen Loan Servicing, Moore v ......................................... 1134
Odom, People v .................................................................... 1053
Oesterling, Washington v .................................................... 1132
Olivet College, Hindenach v ............................................... 1015
Olney, People v ..................................................................... 1029
Olympia Entertainment, Inc, Taylor v ............................... 872
 TABLE OF CASES REPORTED lv

PAGE

Omega Rehab Services, LLC v Everest National

Ins Co ............................................................................... 974
Ort, People v ........................................................................ 1018
Ortiz-Nieves, People v ......................................................... 1042
Osenbaugh, Minors, In re ................................................... 877
Ostendorf v Michigan State Univ ....................................... 1027
Oswald, People v .................................................................. 1083
Owen, People v...................................................................... 1008
Owings, People v .................................................................. 994
Ozier, People v ..................................................................... 1132

P
P & G Apartments, LLC, Estate of Daniel George
Trueblood v ...................................................................... 982
PCT Brands, LLC v Digital Gadgets, LLC ........................ 942
PND Investments, LLC, Town Centers Development Co,
Inc v ................................................................................. 1016
Pace v Doe ............................................................................ 1084
Packard v Brown ................................................................. 1039
Packard Square LLC, Can IV Packard Square LLC v ..... 1001
Pagano, People v .................................................................. 938
Page, People v ...................................................................... 1040
Paradiso v City of Royal Oak ............................................. 994
Parisian-Eagle, People v ..................................................... 1042
Parker v Dearborn Public Schools ...................................... 1040
Parker, People v (Jilleene) .................................................. 1042
Parker, People v (Robert) .................................................... 1041
Parkmallory, People v .......................................................... 866
Parks, Cobb v ....................................................................... 1039
Parole of John Emil Hritz, In re ......................................... 937
Patel, Watts v ....................................................................... 941
Patten, People v ................................................................... 1043
Patterson v St Joseph Mercy Hospital ............................... 1019
Patton, People v ................................................................... 1081
Payne v Payne ...................................................................... 974
Peaceways, TIA Corp v ........................................................ 1018
Pearce v Eaton County Rd Comm ...................................... 1031
Pelc v North Star Ranch ..................................................... 869
lvi 505 MICHIGAN REPORTS

PAGE

Pelican Property, LLC, William P Froling Revocable

Living Trust v .................................................................. 1081
Pennebaker, People v ........................................................... 978
People v Accettola ................................................................ 948
People v Adams .................................................................... 947
People v Al-Adily .................................................................. 965
People v Al-Shimary ............................................................ 976
People v Alcala ..................................................................... 940
People v Aldridge ................................................................. 975
People v Alexander .............................................................. 1022
People v Allen (Erick) .......................................................... 1045
People v Allen (Kaelan) ....................................................... 947
People v Allen (Sammy) ...................................................... 1133
People v Allen (Talvest) ....................................................... 1082
People v Alonzo .................................................................... 995
People v Altantawi ............................................................... 1027
People v Alvarez ................................................................... 1040
People v Anderson (Frederick) ............................................ 1081
People v Anderson (Needra) ................................................ 975
People v Anthony ................................................................. 941
People v Armour .................................................................. 1043
People v Armstead ............................................................... 977
People v Armstrong ............................................................. 1015
People v Arnold (Charese) ................................................... 947
People v Arnold (Lonnie) ..................................................... 1001
People v Artinian ................................................................. 978
People v Austin .................................................................... 947
People v Avery ...................................................................... 995
People v Ayob ....................................................................... 1042
People v Bagley .................................................................... 1134
People v Bailey (James) ...................................................... 947
People v Bailey (Larry) ....................................................... 964
People v Bailey (Shawn) ...................................................... 942
People v Baker ..................................................................... 869
People v Baldwin (Timothy) ................................................ 1043
People v Baldwin (Vitonn) .................................................. 1016
People v Ballard ................................................................... 943
People v Banks (Derrek) ..................................................... 978
People v Barber (David) ...................................................... 1058
 TABLE OF CASES REPORTED lvii

PAGE

People v Barber (Michael) ................................................... 937

People v Barham .................................................................. 869
People v Barner ................................................................... 999
People v Barron ................................................................... 975
People v Barski .................................................................... 979
People v Bates (Carnell) .............................................. 943, 1020
People v Bates (Darnell) .............................................. 943, 1020
People v Batts ...................................................................... 1039
People v Bazzi ...................................................................... 1066
People v Beal ........................................................................ 1042
People v Bean ....................................................................... 1133
People v Beard (Bennie) ...................................................... 978
People v Beard (Bradley) .................................................... 1017
People v Bearden ................................................................. 978
People v Beaty ..................................................................... 973
People v Beaudin ................................................................. 1018
People v Bebee ..................................................................... 994
People v Bell (Justin) .......................................................... 1040
People v Bell (Lester) .......................................................... 1083
People v Bemis ..................................................................... 1042
People v Bennett (Jamal) .................................................... 961
People v Bennett (Ronald) .................................................. 948
People v Bensch ................................................................... 859
People v Benton (Gram) ............................................... 946, 1020
People v Berlanga ................................................................ 1040
People v Bernard ................................................................. 1021
People v Berridge ................................................................. 938
People v Berry ...................................................................... 936
People v Berst ...................................................................... 976
People v Best ........................................................................ 947
People v Bethany ................................................................. 1042
People v Betts ...................................................................... 1017
People v Blair ....................................................................... 1012
People v Blond ..................................................................... 1043
People v Boak ....................................................................... 867
People v Bonds-Carrera ...................................................... 1018
People v Bonds ..................................................................... 966
People v Bonner ................................................................... 941
People v Boone (Keysue) ..................................................... 941
lviii 505 MICHIGAN REPORTS

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People v Boone (Michael) .................................................... 1018

People v Borthwell ............................................................... 1128
People v Bowman (Joshua) ................................................. 1038
People v Bowman (Kevin) ................................................... 1043
People v Bowser ................................................................... 868
People v Boyd ....................................................................... 1067
People v Brackney ............................................................... 1069
People v Bradford (Brian) ................................................... 1015
People v Bradford (Frederick) ............................................. 868
People v Bradley .................................................................. 1018
People v Breneman .............................................................. 940
People v Brooks (Michael) ................................................... 1082
People v Brooks (Willie) ...................................................... 867
People v Brown (Cavari) ..................................................... 995
People v Brown (Charles) .................................................... 1040
People v Brown (Cleophas) ................................................. 1045
People v Brown (Don) .......................................................... 1069
People v Brown (Eddie) ....................................................... 870
People v Brown (John) ........................................................ 1018
People v Brown (Johnnie) ................................................... 996
People v Brown (Lorenzo) ................................................... 869
People v Brown (Michael) ................................................... 871
People v Brown (Rashed) .................................................... 976
People v Brown (Richard) ................................................... 984
People v Brown (Rodney) .................................................... 1134
People v Brown (Ronald) ..................................................... 978
People v Brown (Shukur) .................................................... 996
People v Bunch .................................................................... 874
People v Burklow ................................................................. 975
People v Burks (Johnathan) ...................................... 873, 1083
People v Burns (Kierelle) .................................................... 870
People v Burns (Marlon) ..................................................... 942
People v Burns (Zachary) .................................................... 995
People v Burrell ................................................................... 871
People v Burton ................................................................... 869
People v Butcher .................................................................. 979
People v Butler .................................................................... 996
People v Butters ................................................................... 941
People v Butts ...................................................................... 980
 TABLE OF CASES REPORTED lix

PAGE

People v Byers ...................................................................... 876

People v Cafarelli ................................................................. 994
People v Cain ....................................................................... 1016
People v Calhoun (Samuel) ...................................... 1039, 1041
People v Calloway (Symone) ............................................... 1134
People v Calloway (William) ............................................... 942
People v Calvey .................................................................... 941
People v Campbell ............................................................... 943
People v Cano-Monarrez ..................................................... 984
People v Cantu ..................................................................... 1013
People v Carlson .................................................................. 1084
People v Carroll ................................................................... 871
People v Carter (Arcell) ....................................................... 947
People v Carter (Javon) ....................................................... 870
People v Carter (Mark) ....................................................... 995
People v Carter (Taurean) ................................................... 1021
People v Castaneda ............................................................. 976
People v Castillo .................................................................. 1132
People v Ceasor .................................................................... 1023
People v Chandler ................................................................ 1054
People v Chapman ............................................................... 1128
People v Cheatham .............................................................. 869
People v Cheese (Herman) ........................................... 976, 1045
People v Clark ...................................................................... 869
People v Clay ........................................................................ 994
People v Clemons (Hannibal) .............................................. 871
People v Clemons (Megael) ................................................. 1132
People v Cliff ........................................................................ 1133
People v Clingman ............................................................... 936
People v Cochran ................................................................. 995
People v Cole (Duncan) ....................................................... 1042
People v Cole (Jimmie) ........................................................ 948
People v Cole (Larry) ........................................................... 976
People v Cole (Scott) ............................................................ 941
People v Coleman ................................................................ 1134
People v Collins .................................................................... 945
People v Colon ...................................................................... 1044
People v Colville ................................................................... 931
People v Cooper .................................................................... 1015
lx 505 MICHIGAN REPORTS

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People v Corker .................................................................... 1017

People v Cornell ................................................................... 975
People v Coronado ............................................................... 1082
People v Corridore ............................................................... 1022
People v Corser .................................................................... 1041
People v Corzilius ................................................................ 969
People v Cottingham ........................................................... 1079
People v Cowles ................................................................... 1017
People v Crandall ................................................................ 1134
People v Crews ..................................................................... 1040
People v Cross ...................................................................... 1133
People v Crudup .................................................................. 947
People v Cruz ....................................................................... 1042
People v Culbertson ............................................................. 978
People v Cummings ............................................................. 995
People v Cunningham (Jake) .............................................. 947
People v Cunningham (Travis) ........................................... 997
People v Dabish ................................................................... 996
People v Dalrymple .............................................................. 960
People v Daniels (James) .................................................... 942
People v Daniels (Sean) ....................................................... 946
People v Davis (Adrian) ...................................................... 1083
People v Davis (Chris) ......................................................... 1114
People v Davis (Christopher) .............................................. 979
People v Davis (Daryl) ......................................................... 1018
People v Davis (Earl) ........................................................... 1016
People v Davis (Earvin) ....................................................... 1134
People v Davis (Gordon) ...................................................... 1081
People v Davis (Joel) ........................................................... 1113
People v Davis (John) .......................................................... 1000
People v Davis (Joshua) ...................................................... 874
People v Dawson .................................................................. 1082
People v DeBruyn ................................................................ 1016
People v DeLeon .................................................................. 975
People v Deardoff (Michael) ......................................... 884, 1020
People v Debruyne ............................................................... 957
People v Delmarter .............................................................. 975
People v Denhof ................................................................... 1041
People v Deweerd ................................................................. 973
 TABLE OF CASES REPORTED lxi

PAGE

People v Diallo ..................................................................... 1039

People v Dickey .................................................................... 1015
People v Dinwiddie .............................................................. 995
People v Dixon ..................................................................... 869
People v Doster .................................................................... 975
People v Dowdy .................................................................... 979
People v Downs .................................................................... 868
People v Dudley ................................................................... 1040
People v Dukes ..................................................................... 976
People v Dunmire ................................................................ 1018
People v Dupree ................................................................... 1134
People v Duram ................................................................... 941
People v Durbin ................................................................... 1042
People v Durden ................................................................... 869
People v Easterling .............................................................. 943
People v Edmundson ........................................................... 1017
People v Edwards (Ronald) ................................................. 871
People v Edwards (Wendell) ............................................... 1015
People v Elledge ................................................................... 1042
People v Ellen ...................................................................... 873
People v Ellis ........................................................................ 976
People v Elowsky ................................................................. 979
People v Ernest .................................................................... 1039
People v Esquivel ................................................................. 1082
People v Essex ...................................................................... 871
People v Evans (John) ......................................................... 996
People v Ezell ....................................................................... 869
People v Faubert .................................................................. 1058
People v Fezzey .................................................................... 943
People v Fields ..................................................................... 870
People v Finnie .................................................................... 946
People v Fitzgerald .............................................................. 996
People v Flakiewicz ............................................................. 1018
People v Flores ..................................................................... 1043
People v Ford (Joshua) ........................................................ 947
People v Ford (Marcus) ....................................................... 974
People v Ford (William) ....................................................... 942
People v Forsyth .................................................................. 869
People v Fortuna .................................................................. 996
lxii 505 MICHIGAN REPORTS

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People v Foster ..................................................................... 870

People v Fox ......................................................................... 1042
People v Franklin ................................................................ 975
People v Frill ........................................................................ 946
People v Frye (Adonis) ........................................................ 1081
People v Frye (Carl) ............................................................. 979
People v Fuller ..................................................................... 1128
People v Furline ................................................. 16
People v Furlong .................................................................. 980
People v Gadomski .............................................................. 871
People v Gamet .................................................................... 976
People v Garcia .................................................................... 975
People v Gardiner ................................................................ 1039
People v Gardner ................................................................. 882
People v Garlinger ............................................................... 1082
People v Garrison ................................................................ 880
People v Garza ..................................................................... 1083
People v Gaston ................................................................... 868
People v Gates (Lakendrick) ............................................... 996
People v Gates (Mark) ......................................................... 977
People v Geesey ................................................................... 964
People v German .................................................................. 1042
People v Gilmore .................................................................. 965
People v Giuchici ................................................................. 996
People v Glenn (Jarvis) ....................................................... 996
People v Glenn (Mitchell) .................................................... 1135
People v Gnat ....................................................................... 1034
People v Goga ....................................................................... 998
People v Gomez .................................................................... 870
People v Good ....................................................................... 1082
People v Gordon (D’Ante) .................................................... 1128
People v Gordon (Ernest) ............................................. 870, 1020
People v Gordon (Johnnie) .................................................. 941
People v Goree ..................................................................... 1134
People v Gosnick .................................................................. 1008
People v Gould (Rand) ....................................... 946, 1044, 1045
People v Graham (Jason) .................................................... 1042
People v Graham (Martin) .................................................. 1043
People v Graham (Willie) .................................................... 870
 TABLE OF CASES REPORTED lxiii

PAGE

People v Granderson ........................................................... 872

People v Gray ....................................................................... 1134
People v Green (Jimmy) ...................................................... 1043
People v Green (John) ......................................................... 1133
People v Green (Michael) .................................................... 1083
People v Green (Willie) ........................................................ 946
People v Grice ...................................................................... 1042
People v Griffin .................................................................... 940
People v Grimes ................................................................... 974
People v Grove ..................................................................... 995
People v Gurley .................................................................... 870
People v Guthrie .................................................................. 1038
People v Gwinn .................................................................... 947
People v Hacker ................................................................... 1044
People v Hailey .................................................................... 1021
People v Haines ................................................................... 871
People v Hakola ................................................................... 1040
People v Hall (Brian) ........................................................... 996
People v Hall (Daveaunta) .................................................. 1082
People v Hall (Jacobie) ........................................................ 965
People v Hall (Phillip) ......................................................... 1041
People v Hall (William) ....................................................... 869
People v Hammonds (Billy) ................................................. 979
People v Hammonds (Calvin) ............................................. 977
People v Hampton ................................................................ 939
People v Hancock ................................................................. 1134
People v Hardy ..................................................................... 870
People v Hare (Sergio) ......................................................... 1043
People v Hare (Timothy) ..................................................... 1127
People v Hargrove ................................................................ 1022
People v Harris (Anthony) .................................................. 1134
People v Harris (Isaac) ........................................................ 976
People v Harris (Jair) .......................................................... 874
People v Harris (Larry) ....................................................... 1042
People v Harvey (Eric) ........................................................ 941
People v Harvey (Keith) ...................................................... 872
People v Harvey (Kim) ........................................................ 1015
People v Hathaway .............................................................. 1041
People v Hawkins (Dustin) ................................................. 1040
lxiv 505 MICHIGAN REPORTS

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People v Hawkins (Robert) ................................................. 1081

People v Hawkins (Shane) .................................................. 937
People v Hawks .................................................................... 941
People v Hayes (Leonard) ................................................... 1082
People v Haynes ................................................................... 882
People v Haynie ................................................................... 1096
People v Haywood (Albert) .................................................. 1082
People v Haywood (Brian) ................................................... 1082
People v Haywood (Deandre) .............................................. 1067
People v Head ...................................................................... 975
People v Heard ..................................................................... 1043
People v Heck ....................................................................... 948
People v Hendershott .......................................................... 868
People v Hendrix ................................................................. 1043
People v Henry ..................................................................... 1017
People v Herman ................................................................. 937
People v Hibbler ................................................................... 1001
People v Hiler ....................................................................... 940
People v Hill (Andrew) ........................................................ 941
People v Hill (Craig) ............................................................ 1018
People v Hill (Tyrone) .......................................................... 1043
People v Hillard ................................................................... 995
People v Hilton ..................................................................... 1015
People v Hinton ................................................................... 940
People v Hite (Troy) ...................................................... 940, 1020
People v Hoggard ................................................................. 1132
People v Holland .................................................................. 975
People v Holley .................................................................... 938
People v Hollis ..................................................................... 1132
People v Holman .................................................................. 974
People v Holmes ................................................................... 856
People v Hoof ....................................................................... 947
People v Horton ................................................................... 1082
People v Hoskins .................................................................. 1134
People v Houston (Amen) .................................................... 871
People v Houston (Sarantay) .............................................. 967
People v Howard .................................................................. 995
People v Howell..................................................................... 975
People v Hubbard ................................................................ 1128
 TABLE OF CASES REPORTED lxv

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People v Hudson .................................................................. 975

People v Hughes (Howard) .................................................. 1132
People v Hughes (Justin) .................................................... 976
People v Hughes (Kristopher) ............................................. 855
People v Hulbert .................................................................. 868
People v Ison ........................................................................ 946
People v Jackson (Antonio) ................................................. 874
People v Jackson (Arnett) ................................................... 868
People v Jackson (Darryl) ................................................... 1043
People v Jackson (Dequaries) ............................................. 941
People v Jackson (Douglas) ................................................. 997
People v Jackson (Garry) .................................................... 1044
People v Jackson (Jammal) ................................................. 1133
People v Jackson (Jermaine) .............................................. 873
People v Jackson (Marlon) .................................................. 974
People v Jackson (Michael) ................................................. 1058
People v Jackson (Robert) ................................................... 978
People v Jackson (Steven) ................................................... 1133
People v Jamison-Laws ....................................................... 1134
People v Jasper .................................................................... 870
People v Jeffries ................................................................... 941
People v Jemison ................................................ 352
People v Jenkins (Alvin) ..................................................... 1142
People v Jenkins (Kenneth) ................................................ 1039
People v Jenkins (Reueben) ................................................ 947
People v Jenkins ................................................. 16
People v Jensen .................................................................... 1134
People v Johnson (Chad) ..................................................... 871
People v Johnson (Darren) .................................................. 1041
People v Johnson (David) .................................................... 1043
People v Johnson (Derrick) ................................................. 940
People v Johnson (Edward) ................................................. 1132
People v Johnson (Jermaine) .............................................. 1134
People v Johnson (Lamonte) ............................................... 1042
People v Johnson (Lovily) ................................................... 882
People v Johnson (Maurice) ................................................ 1134
People v Johnson (Robert) ................................................... 994
People v Johnson (Teri) ....................................................... 1132
People v Johnson (Tonnie) ................................................... 979
lxvi 505 MICHIGAN REPORTS

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People v Johnson (Troy) ...................................................... 868

People v Jones (Cordell) ...................................................... 1015
People v Jones (Deangelo) ................................................... 1016
People v Jones (Donshey) .................................................... 996
People v Jones (Dontaye) .................................................... 870
People v Jones (Jonathon) ................................................... 1082
People v Jones (Kyle) .......................................................... 1053
People v Jones (Les) ............................................................ 869
People v Jones (Lorimer) ..................................................... 870
People v Jones (Martin) ...................................................... 1039
People v Jones (Timothy) .................................................... 1042
People v Jones-Butler .......................................................... 869
People v Jordan .................................................................... 978
People v Joseph .................................................................... 868
People v Kabongo ................................................................. 999
People v Kariem ................................................................... 943
People v Katzman ................................................................ 1053
People v Keating .................................................................. 1015
People v Keister (Jason) ........................................... 1014, 1137
People v Kelly (Walter) ............................................. 933, 1020
People v Kemp ..................................................................... 942
People v Kennard ................................................................. 1017
People v Kennedy (Joeviair) ............................................... 1043
People v Kennedy (Johnny) ................................................ 1031
People v Kennedy (Robert) .................................................. 870
People v Kenney .................................................................. 995
People v Killing .................................................................... 1017
People v King (Deandre) ............................................ 871, 1083
People v King (Frank) ......................................................... 851
People v King (Kevin) .......................................................... 1080
People v King (Leonard) ...................................................... 1015
People v Kircher .................................................................. 1132
People v Knack .................................................................... 942
People v Knauss ................................................................... 1132
People v Knox ...................................................................... 1016
People v Kobasic .................................................................. 980
People v Kohls ...................................................................... 965
People v Koryal .................................................................... 978
People v Kreason ................................................................. 978
 TABLE OF CASES REPORTED lxvii

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People v Krestel ................................................................... 1139

People v Krok ....................................................................... 975
People v Krukowski ............................................................. 998
People v Krzeminski ............................................................ 1083
People v Kurowicki .............................................................. 1081
People v LaBadie ................................................................. 978
People v LaRose ................................................................... 1016
People v LaValley ................................................................. 976
People v Labelle ................................................................... 1127
People v Lahdir .................................................................... 1044
People v Lampe .................................................................... 982
People v Lance ..................................................................... 977
People v Landers ................................................................. 943
People v Lang ....................................................................... 977
People v Larkin .................................................................... 1042
People v Lately ..................................................................... 1041
People v Lawson .................................................................. 870
People v Lay ......................................................................... 1043
People v Leach ..................................................................... 1044
People v Lech ....................................................................... 996
People v Lee ......................................................................... 941
People v Lehre ..................................................................... 942
People v Leigh ...................................................................... 978
People v Lemons .................................................................. 1084
People v Levanduski ............................................................ 1040
People v Lewis (Arndola) .................................................... 1082
People v Lewis (John) .......................................................... 1135
People v Lipsey .................................................................... 989
People v Long ....................................................................... 1042
People v Lopez ..................................................................... 882
People v Lowry ..................................................................... 1019
People v Luberda ................................................................. 1044
People v Lyle ........................................................................ 1081
People v Macauley ............................................................... 1039
People v Maddox .................................................................. 980
People v Magee .................................................................... 1083
People v Magnant ................................................................ 1000
People v Major-Lang ............................................................ 976
People v Malcom .................................................................. 979
lxviii 505 MICHIGAN REPORTS

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People v Maleski .................................................................. 996

People v Malone (Charles) .................................................. 996
People v Malone (Darius) .................................................... 941
People v Malone (Kesia) ...................................................... 857
People v Mannarino (Melissa) ................................. 1018, 1019
People v Manning (Corey) ................................................... 1017
People v Manning (Robin) ................................................... 881
People v Manwell ................................................................. 1135
People v Marchese ............................................................... 1039
People v Marshall ................................................................ 1043
People v Martin (Deandre) .................................................. 977
People v Martin (Johnathon) .............................................. 869
People v Martin (Marcus) ................................................... 1021
People v Martin (Rodney) ................................................... 1040
People v Martin-Levier ........................................................ 871
People v Martinez (Juan) .................................................... 1138
People v Martinez (Robert) ...................................... 946, 1045
People v Masalmani (Ihab) ...................................... 1090, 1142
People v Massey ................................................................... 940
People v Mathews ................................................................ 1114
People v Matthews ............................................................... 868
People v Matti ...................................................................... 1038
People v Mayo ...................................................................... 1044
People v McAdams ............................................................... 1018
People v McBride ................................................................. 1018
People v McCants ................................................................ 868
People v McClinton .............................................................. 1082
People v McCollum .............................................................. 969
People v McCoy (Deonte) .................................................... 1041
People v McCoy (Robert) ..................................................... 996
People v McCree .................................................................. 868
People v McCullough ........................................................... 976
People v McFall .................................................................... 942
People v McFarland ............................................................. 870
People v McFarlane ............................................................. 1059
People v McFolley ................................................................ 868
People v McGowan ............................................................... 1043
People v McGruder .............................................................. 869
People v McJunkin .............................................................. 883
 TABLE OF CASES REPORTED lxix

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People v McMillen (Clarence) .................................. 876, 997

People v McNeal .................................................................. 1014
People v McNees .................................................................. 1041
People v McRunels ............................................................... 976
People v Mead ...................................................................... 1016
People v Medendorp ............................................................ 978
People v Medina ................................................................... 1018
People v Mejia ...................................................................... 963
People v Mellen .................................................................... 1018
People v Mercer ................................................................... 940
People v Merlo ..................................................................... 995
People v Messenger ............................................................. 995
People v Miller (Aaron) ....................................................... 1017
People v Miller (Columbus) ................................................. 1017
People v Miller (Dwayne) .................................................... 1134
People v Miller (Jaymes) ..................................................... 1019
People v Miller (Tanino) ...................................................... 942
People v Moncrief ................................................................ 996
People v Montgomery .......................................................... 1042
People v Montoya-Sancen ................................................... 870
People v Moore (Demetrius) ................................................ 1016
People v Moore (Marquis) ................................................... 871
People v Moore (Martell) ..................................................... 1017
People v Moore (Terrence) ................................................... 976
People v Moore (Tyreese) .................................................... 975
People v Moore (Wayne) ...................................................... 1043
People v Moore (Wesley) ...................................................... 978
People v Moses ..................................................................... 979
People v Mullins (Billy) ....................................................... 996
People v Mullins (George) ................................................... 863
People v Muntean ................................................................ 1020
People v Mustafa ................................................................. 1134
People v Naccarato .............................................................. 877
People v Navarrete .............................................................. 996
People v Neal ....................................................................... 1083
People v Neff ........................................................................ 865
People v Nelson .................................................................... 1081
People v Nichol .................................................................... 1053
People v Nichols (Elmore) ................................................... 1083
lxx 505 MICHIGAN REPORTS

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People v Nickleberry ............................................................ 1041

People v Nino ....................................................................... 1067
People v Nodarse ................................................................. 1018
People v Noel ........................................................................ 1017
People v Norfleet .................................................................. 948
People v Norman ................................................................. 1043
People v Nutting .................................................................. 975
People v O’Neal .................................................................... 1014
People v Odom ..................................................................... 1053
People v Olney ..................................................................... 1029
People v Ort ......................................................................... 1018
People v Ortiz-Nieves .......................................................... 1042
People v Oswald ................................................................... 1083
People v Owen....................................................................... 1008
People v Owings ................................................................... 994
People v Ozier ...................................................................... 1132
People v Pagano ................................................................... 938
People v Page ....................................................................... 1040
People v Parisian-Eagle ...................................................... 1042
People v Parker (Jilleene) ................................................... 1042
People v Parker (Robert) ..................................................... 1041
People v Parkmallory .......................................................... 866
People v Patten .................................................................... 1043
People v Patton .................................................................... 1081
People v Pennebaker ........................................................... 978
People v Perry (Bishop) ....................................................... 1096
People v Perry (Carl) ........................................................... 868
People v Perry (Terrence) .................................................... 996
People v Peterson (Michael) ..................................... 942, 1083
People v Pettiford ................................................................ 999
People v Pharms .................................................................. 976
People v Phillips .................................................................. 1040
People v Pickett ................................................................... 1133
People v Plank ..................................................................... 1082
People v Plulik ..................................................................... 1038
People v Post ........................................................................ 1081
People v Potter ..................................................................... 977
People v Potts ....................................................................... 869
People v Powell .................................................................... 947
 TABLE OF CASES REPORTED lxxi

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People v Prahl-Six ............................................................... 1017

People v Pringle ................................................................... 1039
People v Proche .................................................................... 1017
People v Purnell ................................................................... 1082
People v Quezada ................................................................. 982
People v Rahm ..................................................................... 940
People v Rainbolt ................................................................. 881
People v Rajput .................................................. 7
People v Rajput .................................................................... 1112
People v Ramsey .................................................................. 1084
People v Rawson .................................................................. 1040
People v Reed (James) ............................................... 973, 1079
People v Reese ...................................................................... 1011
People v Reichard ............................................... 81
People v Reiher .................................................................... 1133
People v Render ................................................................... 942
People v Reynolds ................................................................ 868
People v Richards (Kevin) ................................................... 871
People v Richards (Kyle) ..................................................... 947
People v Richardson (Christopher) ..................................... 977
People v Richardson (Denaz) .............................................. 869
People v Richardson (John) ................................................. 1082
People v Ridenour ................................................................ 1018
People v Riley ....................................................................... 995
People v Ritchey ................................................................... 1135
People v Rivera .................................................................... 870
People v Robertson .............................................................. 975
People v Robinson (Aaron) .................................................. 872
People v Robinson (Jason) ................................................... 994
People v Robinson (Todd) .................................................... 1039
People v Robinson (Tron) .................................................... 1127
People v Roche ..................................................................... 995
People v Rodgers .................................................................. 870
People v Rodriguez .............................................................. 974
People v Rogalski ................................................................. 996
People v Rosas ..................................................................... 1040
People v Ross ....................................................................... 1018
People v Ruckes ................................................................... 947
People v Rush ....................................................................... 1040
lxxii 505 MICHIGAN REPORTS

PAGE

People v Russell-Taylor ....................................................... 1015

People v Rutherford ............................................................. 1018
People v Ruza ....................................................................... 1018
People v Ryan ....................................................................... 995
People v Sadeghi .................................................................. 979
People v Sain ........................................................................ 1018
People v Salinas ................................................................... 871
People v Salyers ................................................................... 995
People v Sammons ............................................. 31
People v Sanchez ................................................................. 1079
People v Savage ................................................................... 865
People v Sawyer ................................................................... 977
People v Schafer ................................................................... 942
People v Schoening .............................................................. 870
People v Scholtes (William) ......................................... 870, 997
People v Schoolcraft ............................................................. 947
People v Schram .................................................................. 975
People v Schurz .................................................................... 872
People v Scott (Antoine) ...................................................... 1039
People v Scott (Donald) ....................................................... 1133
People v Scott (Terrance) .................................................... 1043
People v Searcy (Lavelle) .................................................... 863
People v Searcy (Thelonious) .............................................. 999
People v Sedlmeyer .............................................................. 1016
People v Seekins .................................................................. 995
People v Shaw ...................................................................... 1015
People v Shelton .................................................................. 1135
People v Shigwadja .............................................................. 942
People v Short (Gerald) .............................................. 974, 1135
People v Shoulders .............................................................. 1026
People v Siegel ..................................................................... 1059
People v Sifuentes ................................................................ 1081
People v Simmons (Demal) ................................................. 975
People v Simmons (Steven) ................................................. 1043
People v Simpson (Cedric) .................................................. 856
People v Simpson (Dajuan) ................................................. 941
People v Simpson (Demario) .................................... 947, 1045
People v Sindone .................................................................. 1021
People v Sinnett ................................................................... 949
 TABLE OF CASES REPORTED lxxiii

PAGE

People v Skellett .................................................................. 1096

People v Slater ..................................................................... 978
People v Sleeper ................................................................... 977
People v Smalley .................................................................. 870
People v Smith (Dannie) ............................................ 975, 1083
People v Smith (Errol) ......................................................... 870
People v Smith (Jack) ................................................ 974, 1083
People v Smith (Justin) ....................................................... 1085
People v Smith (Kevin) ........................................................ 1040
People v Smith (Leonardrow) ............................................. 1016
People v Smith (Phillip) ...................................................... 976
People v Smith (Ryan) ......................................................... 1134
People v Smith (Shamon) .................................................... 942
People v Smith (Terreon) ..................................................... 948
People v Smith (Virgil) ........................................................ 1047
People v Smith (William) .................................................... 1052
People v Soler-Norona ......................................................... 1128
People v Solomon ................................................................. 995
People v Spencer .................................................................. 943
People v Spiller .................................................................... 1044
People v Springer (Anthony) ............................................... 948
People v Springer (Marsha) ................................................ 948
People v Springs .................................................................. 1082
People v St Andre ................................................................ 1081
People v Stamper ................................................................. 1134
People v Stamps (Terah) ........................................... 975, 1041
People v Stanaway ............................................................... 1019
People v Stanley .................................................................. 1011
People v Starnes .................................................................. 1052
People v Steiner ................................................................... 1041
People v Stephens ................................................................ 947
People v Stephenson ............................................................ 942
People v Stevens (Codie) ..................................................... 998
People v Stevens (David) ..................................................... 1083
People v Stevens (Dianne) .................................................. 948
People v Stiff ........................................................................ 1133
People v Stoltz ..................................................................... 1128
People v Streater (Jason) .................................................... 940
People v Sturza .................................................................... 1039
lxxiv 505 MICHIGAN REPORTS

PAGE

People v Sumpter ................................................................. 974

People v Suttles ................................................................... 1038
People v Swander ................................................................ 977
People v Swank .................................................................... 1133
People v Swift ...................................................................... 980
People v Swilling ................................................................. 980
People v Taamneh ................................................................ 1016
People v Taylor (Dexter) ...................................................... 962
People v Taylor (James) ...................................................... 1018
People v Taylor (McArthur) ................................................ 1132
People v Taylor (Percy) ........................................................ 979
People v Taylor (Robbie) ...................................................... 1028
People v Taylor (Yasmeen) .................................................. 868
People v Tett ......................................................................... 871
People v Thomas (Michael) ................................................. 871
People v Thomas (Ricky) ..................................................... 1043
People v Thomas (Sean) ...................................................... 977
People v Thomas (Terrance) ................................................ 872
People v Thompson (Bryan) ................................................ 864
People v Thompson (Markest) ............................................ 1081
People v Thompson (Michael) ............................................. 997
People v Thompson (Robert) ............................................... 871
People v Thornton ................................................................ 942
People v Threatt .................................................................. 1039
People v Tibbs ...................................................................... 997
People v Tietz ....................................................................... 1011
People v Tillman .................................................................. 978
People v Times ..................................................................... 1040
People v Timmons (Jerrico) ................................................. 882
People v Towne ..................................................................... 865
People v Traver .................................................................... 975
People v Truitte ................................................................... 1134
People v Tucker (Fischer) .................................................... 974
People v Tucker (Gregory) ................................................... 1016
People v Turner .................................................................... 954
People v Turpin .................................................................... 1043
People v Tyson (Frank) .............................................. 868, 1134
People v Ulrich ..................................................................... 997
People v Upshaw .................................................................. 1080
 TABLE OF CASES REPORTED lxxv

PAGE

People v Uribe ...................................................................... 1034

People v Van Buren ............................................................. 851
People v Vandermeulen ....................................................... 947
People v Vanderpool ........................................... 391
People v Vann ....................................................................... 938
People v Varner .................................................................... 1030
People v Varney ................................................................... 864
People v Vayko ..................................................................... 1039
People v Vega ....................................................................... 1041
People v Venson ................................................................... 979
People v Vick ........................................................................ 1022
People v Virgin ..................................................................... 1039
People v Visner .................................................................... 1044
People v Voris ....................................................................... 1133
People v Wafer ..................................................................... 1112
People v Waire ..................................................................... 1043
People v Walas ..................................................................... 865
People v Waldron ................................................................. 1017
People v Walker (Albert) ..................................................... 946
People v Walker (Alphonso) ................................................ 1042
People v Walker (Dallas) ..................................................... 1081
People v Walker (Jeremy) ................................................... 995
People v Walker (Jimmie) ................................................... 977
People v Walker (Juan) ....................................................... 1057
People v Walker (Reginald) ................................................. 1015
People v Walker (Tyrone) .................................................... 942
People v Walls ...................................................................... 1080
People v Walton ................................................................... 1016
People v Wang .................................................... 239
People v Warner ................................................................... 870
People v Warren (Brian) ...................................................... 1141
People v Warren (William) .................................................. 869
People v Warren ................................................. 196
People v Washington (Gregory) .......................................... 1046
People v Washington (Mark) ............................................... 1016
People v Wasikowski ........................................................... 1042
People v Watkins ................................................................. 1028
People v Watson ................................................................... 976
People v Watts (Heather) .................................................... 1040
lxxvi 505 MICHIGAN REPORTS

PAGE

People v Watts (Jeffrey) ...................................................... 1134

People v Watts (Robert) ....................................................... 942
People v Wayne .................................................................... 1082
People v Webb (Jason) ......................................................... 978
People v Webb (Tyler) .......................................................... 946
People v Wehrle ................................................................... 980
People v Weissert ................................................................. 941
People v Wells (Tanaka) ...................................................... 940
People v Whateley ............................................................... 979
People v White (Christopher) ............................................. 979
People v White (Kevin) ........................................................ 1022
People v White (Valden) ...................................................... 1132
People v Whitfield ................................................................ 1081
People v Whitlow ................................................................. 1018
People v Whitmore ............................................................... 1015
People v Wilcox .................................................................... 1041
People v Wilder (Darrell) .................................................... 1052
People v Wilder (Oswald) .................................................... 1043
People v Willett .................................................................... 964
People v Williams (Anthony) .............................................. 1067
People v Williams (Devon) .................................................. 1133
People v Williams (Donald) ................................................. 941
People v Williams (Dontrel) ................................................ 941
People v Williams (Fred) ..................................................... 1082
People v Williams (John) ..................................................... 1080
People v Williams (Kolby) ................................................... 942
People v Williams (Larry) ................................................... 871
People v Williams (Reginald) .............................................. 870
People v Williams (Ronald) ...................................... 1013, 1017
People v Williams (Terry) .................................................... 1013
People v Williams (Tommy) ................................................. 996
People v Williams (William) ................................................ 1052
People v Willis (Dorian) ............................................. 975, 1083
People v Wilson (John) ............................................... 942, 1020
People v Wilson (Travis) ...................................................... 1039
People v Wilson (Victor) ...................................................... 1079
People v Wilson-Beauford ................................................... 1043
People v Wine ....................................................................... 1040
People v Winer ..................................................................... 941
 TABLE OF CASES REPORTED lxxvii

PAGE

People v Winston ................................................................. 1043

People v Wireman ................................................................ 1041
People v Witherspoon (Clifton) ........................................... 1044
People v Wogoman ............................................................... 1017
People v Wolter .................................................................... 975
People v Wood (Christopher) ............................................... 1042
People v Woods (Curtis) ...................................................... 995
People v Woods (Toby) ......................................................... 1141
People v Wright (Donald) .................................................... 1041
People v Wright (Robert) ..................................................... 977
People v Yatoma ................................................................... 995
People v Young (Demetris) .................................................. 870
People v Young (Frederick) ................................................. 994
People v Young (Stephen) .................................................... 1067
People v Zahraie .................................................................. 1132
People of Commerce Twp v Sekulovski .............................. 1132
People of the City of Westland v Plater ............................. 1133
Peoples v City of Detroit Bd of Zoning Appeals ................ 1017
Perry, People v (Bishop) ...................................................... 1096
Perry, People v (Carl) .......................................................... 868
Perry, People v (Terrence) ................................................... 996
Peterson, People v (Michael) ..................................... 942, 1083
Petition of Attorney General for Subpoenas, In re ............ 939
Petition of Wayne County Treasurer for Foreclosure,
In re .................................................................................. 871
Pettiford, People v ............................................................... 999
Pharms, People v ................................................................. 976
Phillips, People v .................................................................. 1040
Pickett, People v .................................................................. 1133
Pike v Northern Michigan Univ ......................................... 876
Plank, People v .................................................................... 1082
Plater v Attorney Grievance Comm ................................... 1019
Plater, People of the City of Westland v ............................ 1133
Plulik, People v .................................................................... 1038
Podewell v Podewell .................................................. 870, 997
Post, Hills v .......................................................................... 1043
Post, People v ....................................................................... 1081
Potter, People v .................................................................... 977
Potts, People v ...................................................................... 869
lxxviii 505 MICHIGAN REPORTS

PAGE

Powell, People v ................................................................... 947

Prahl-Six, People v .............................................................. 1017
Prater/Hickman, Minors, In re ........................................... 1029
Price v Callis ........................................................................ 975
Primeone Ins Co, DOA DOA, Inc v .................................... 1080
Pringle, People v .................................................................. 1039
Proche, People v ................................................................... 1017
Proctor, In re ........................................................................ 869
Progress Michigan v Attorney General .............................. 877
Progressive Ins Co, McDade v ............................................ 1085
Progressive Marathon Ins Co, Easter v ............................. 880
Punturo v Kern .................................................................... 866
Purnell, People v .................................................................. 1082

Q
Quezada, People v ................................................................ 982

R
RC, Minor, In re ................................................................... 884
RCS Recovery Services, LLC v Mitchell ............................ 941
Rafaeli, LLC v Oakland County ........................ 429
Rahm, People v .................................................................... 940
Rainbolt, People v ................................................................ 881
Rajput, People v ................................................. 7
Rajput, People v ................................................................... 1112
Ralston, Shannon v .............................................................. 1067
Ramsey, People v ................................................................. 1084
Rawson, People v ................................................................. 1040
Reaume v Twp of Spring Lake .................................. 876, 1108
Redford Police Dep’t, Defilippis v ....................................... 1133
Reed, People v (James) .............................................. 973, 1079
Reese, People v ..................................................................... 1011
Reichard, People v .............................................. 81
Reidenbach v City of Kalamazoo ........................................ 980
Reiher, People v ................................................................... 1133
Reliability Plans of Electric Utilities for 2017–
2021, In re ....................................................... 97
 TABLE OF CASES REPORTED lxxix

PAGE
Reliability Plans of Electric Utilities for 2017–2021,
In re .................................................................................. 1085
Render, People v .................................................................. 942
Resource Point, LLC v Addolux, LLC ................................ 985
Reynolds, People v ............................................................... 868
Rice, James Twp v ............................................................... 1038
Richards, People v (Kevin) .................................................. 871
Richards, People v (Kyle) .................................................... 947
Richardson, People v (Christopher) .................................... 977
Richardson, People v (Denaz) ............................................. 869
Richardson, People v (John) ................................................ 1082
Ricks v State of Michigan ................................................... 1068
Ridenour, People v ............................................................... 1018
Riley, People v ...................................................................... 995
Ritchey, People v .................................................................. 1135
Rivera v SVRC Industries, Inc ........................................... 1012
Rivera, People v ................................................................... 870
Rivera-Izaguirre/Fernandez/Mendez-Izaguirre, Minors,
In re .................................................................................. 949
Robert E Whitton Revocable Trust, In re .......................... 956
Robertson v Johnson ........................................................... 1011
Robertson, People v ............................................................. 975
Robinson, People v (Aaron) ................................................. 872
Robinson, People v (Jason) .................................................. 994
Robinson, People v (Todd) ................................................... 1039
Robinson, People v (Tron) ................................................... 1127
Roche, People v .................................................................... 995
Rodgers, People v ................................................................. 870
Rodrigue v Comprehensive Medical Center, PLLC ........... 1041
Rodriguez, People v ............................................................. 974
Roe, Stumbo v ...................................................................... 1127
Rogalski, People v ................................................................ 996
Romanian Orthodox Episcopate of America v Carstea ..... 995
Romanian Orthodox Episcopate of America v Holy
Ascension Orthodox Christian Monastery .................... 980
Romanian Orthodox Episcopate of America, Holy Trinity
Romanian Orthodox Monastery v .................................. 980
Ronald S Lederman, MD, PLLC, Abdulkarim v ............... 1041
Ronnie Dante Thomas, In re ............................................... 978
lxxx 505 MICHIGAN REPORTS

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Rosas, People v .................................................................... 1040

Ross, People v ...................................................................... 1018
Ross Ed, LLC v City of Taylor ............................................ 1132
Royal Oak (City of), Iris LLC v .......................................... 949
Royal Oak (City of), Paradiso v .......................................... 994
Ruckes, People v .................................................................. 947
Rudd v Averill ............................................................. 1132, 1134
Rugg, McElmurry v ............................................................. 941
Rush, People v ...................................................................... 1040
Russell-Taylor, People v ...................................................... 1015
Rutherford, People v ............................................................ 1018
Rutledge v Suffolk Court Apartments ................................ 1133
Ruza, People v ...................................................................... 1018
Ryan, People v....................................................................... 995

S
SL Russell, Minor, In re ...................................................... 863
SVRC Industries, Inc, Rivera v .......................................... 1012
Sabados v State Farm Mutual Automobile Ins Co ........... 943
Sadeghi, People v ................................................................. 979
Sage’s Investment Group, LLC, Livings v ......................... 985
Saginaw (City of), Bell v .............................................. 864, 997
Sain, People v ....................................................................... 1018
Salinas, People v .................................................................. 871
Salyers, People v .................................................................. 995
Sammons, People v ............................................ 31
Sanchez, People v ................................................................ 1079
Sanders v Tumbleweed Saloon ................................ 1069, 1142
Sanford v State of Michigan ............................................... 963
Saugatuck Dunes Coastal Alliance v Saugatuck Twp ...... 1056
Saugatuck Twp, Saugatuck Dunes Coastal Alliance v ..... 1056
Savage, People v .................................................................. 865
Sawyer, People v .................................................................. 977
Schafer, People v .................................................................. 942
Schmitt, Matheson v ............................................................ 998
Schoening, People v ............................................................. 870
Scholastic Solutions, LLC, Noel v ...................................... 1133
Scholtes, People v (William) ........................................ 870, 997
Schoolcraft, People v ............................................................ 947
 TABLE OF CASES REPORTED lxxxi

PAGE

Schram, People v ................................................................. 975

Schurz, People v ................................................................... 872
Schwartz, Minors, In re ....................................................... 1029
Scott, People v (Antoine) ..................................................... 1039
Scott, People v (Donald) ...................................................... 1133
Scott, People v (Terrance) ................................................... 1043
Scott, Wilmington Savings Fund Society FSB v ............... 1017
Searcy, People v (Lavelle) .................................................... 863
Searcy, People v (Thelonious) ............................................. 999
Secretary of State, Hardy v ................................................ 946
Secretary of State, League of Women Voters of
Michigan v ....................................................................... 988
Secretary of State, League of Women Voters v ................. 931
Secretary of State, Senate & House Representatives v .... 988
Secura Ins Co, DKE, Inc v ....................................... 969, 1083
Sedlmeyer, People v ............................................................. 1016
Seekins, People v ................................................................. 995
Seifman, Guzall v ................................................................ 1080
Sekulovski, People of Commerce Twp v ............................. 1132
Senate & House Representatives v Secretary of State ..... 988
Senate Request for Advisory Opinion Regarding
Constitutionality of 2018 PA 368 & 369, In re ............. 884
Service Station Installation Bldg & Car Wash Equip,
Inc, Walton & Adams, LLC v ......................................... 940
Shannon v Ralston ............................................................... 1067
Shareef v Deutsche Bank National Trust Co .................... 870
Shaw, People v ..................................................................... 1015
Shears v Bingaman ............................................................. 882
Shelton, People v ................................................................. 1135
Shigwadja, People v ............................................................. 942
Short, People v (Gerald) ........................................... 974, 1135
Shoulders, People v ............................................................. 1026
Siegel, People v .................................................................... 1059
Sifuentes, People v ............................................................... 1081
Simmons, People v (Demal) ................................................ 975
Simmons, People v (Steven) ................................................ 1043
Simpson, People v (Cedric) ................................................. 856
Simpson, People v (Dajuan) ................................................ 941
Simpson, People v (Demario) ................................... 947, 1045
lxxxii 505 MICHIGAN REPORTS

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Sindone, People v ................................................................. 1021

Sinnett, People v .................................................................. 949
Skanska USA Bldg Inc v Map Mechanical
Contractors, Inc .............................................. 368
Skellett, People v ................................................................. 1096
Slaga v Total Health Care, Inc ........................................... 1017
Slater, People v .................................................................... 978
Sleeper, People v .................................................................. 977
Slis v State of Michigan ...................................................... 943
Smalley, People v ................................................................. 870
Smith v City of Detroit ........................................................ 884
Smith v Hertz Schram, PC ................................................. 1038
Smith v Merritt .................................................................... 995
Smith, In re .......................................................................... 1134
Smith, People v (Dannie) ......................................... 975, 1083
Smith, People v (Errol) ........................................................ 870
Smith, People v (Jack) .............................................. 974, 1083
Smith, People v (Justin) ...................................................... 1085
Smith, People v (Kevin) ....................................................... 1040
Smith, People v (Leonardrow) ............................................ 1016
Smith, People v (Phillip) ..................................................... 976
Smith, People v (Ryan) ........................................................ 1134
Smith, People v (Shamon) ................................................... 942
Smith, People v (Terreon) .................................................... 948
Smith, People v (Virgil) ....................................................... 1047
Smith, People v (William) ................................................... 1052
Soler-Norona, People v ........................................................ 1128
Solomon v Charles Egeler Reception & Guidance
Center Warden ................................................................ 947
Solomon, People v ................................................................ 995
Southeast Michigan Surgical Hospital, White v ............... 947
Speckin Forensics, LLC v Auto-Owners Ins Co ................ 977
Spencer, People v ................................................................. 943
Spiller, People v ................................................................... 1044
Spine Specialists of Michigan, PC v Geico
Indemnity Co ................................................................... 1016
Springer, People v (Anthony) .............................................. 948
Springer, People v (Marsha) ............................................... 948
Springs, People v ................................................................. 1082
 TABLE OF CASES REPORTED lxxxiii

PAGE

St Andre, People v ............................................................... 1081

St John Hospital and Medical Center, Bowman v ............ 1069
St John Macomb Hospital, White v ................................... 976
St John Providence, Inc, Bodnar v ..................................... 994
St Joseph Mercy Hospital, Patterson v .............................. 1019
Stamper, People v ................................................................ 1134
Stamps, People v (Terah) .......................................... 975, 1041
Stanaway, People v .............................................................. 1019
Stanley, People v .................................................................. 1011
Starnes, People v ................................................................. 1052
State Farm Mutual Automobile Ins Co, Sabados v .......... 943
State Treasurer v Uraz ....................................................... 1135
State of Michigan, Bartlett v .............................................. 996
State of Michigan, Council of Organizations & Others
for Ed About Parochiaid v .............................................. 982
State of Michigan, Leaphart v ..................................... 974, 1045
State of Michigan, Lynch v ................................................. 980
State of Michigan, Maples v ............................................... 1088
State of Michigan, Ricks v .................................................. 1068
State of Michigan, Sanford v .............................................. 963
State of Michigan, Slis v ..................................................... 943
State of Michigan, Taxpayers for Michigan
Constitutional Government v ......................................... 1136
State of Michigan, Tomasik v ............................................. 956
Steiner, People v .................................................................. 1041
Stephens, People v ............................................................... 947
Stephenson, People v ........................................................... 942
Sterling Benefits, LLC v Fischer ........................................ 965
Sterling Heights (City of) v Macomb Interceptor Drain
Drainage Dist .................................................................. 1040
Stevens, People v (Codie) .................................................... 998
Stevens, People v (David) .................................................... 1083
Stevens, People v (Dianne) ................................................. 948
Stevenson v Auto Club Ins Ass’n ........................................ 1017
Stewart, Talan v .................................................................. 1016
Stiff, People v ....................................................................... 1133
Stolaj v Farm Bureau Mutual Ins Co of Michigan ........... 947
Stoltz, People v .................................................................... 1128
Stowell v Grover .................................................................. 1011
lxxxiv 505 MICHIGAN REPORTS

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Streater, People v (Jason) ................................................... 940

Stumbo v Roe ....................................................................... 1127
Sturza, People v ................................................................... 1039
Subway Real Estate, LLC, Nabro Holdings, Inc v ............ 864
Suffolk Court Apartments, Rutledge v ............................... 1133
Sumpter, People v ................................................................ 974
Sunnyside Resort Condominium Ass’n, Inc v Beckman ... 1015
Suttles, People v .................................................................. 1038
Swain v Miles Trucking & Excavating Co ......................... 1039
Swander, People v ................................................................ 977
Swank, People v ................................................................... 1133
Swift, People v ..................................................................... 980
Swilling, People v ................................................................ 980
Switalski v Clevenger .......................................................... 1022
Swofford v Alvarez ............................................................... 1128
Szekely v Kinachtchouk ...................................................... 1069

T
2 Crooked Creek LLC v Cass County Treasurer ............... 865
TIA Corp v Peaceways ......................................................... 1018
TMF II Waterchase, LLC, Martinez v ............................... 943
TNT Equip, Inc, Farm Bureau Ins Co v ............................ 1015
TOMRA of North America, Inc v Dep’t of
Treasury .......................................................... 333
Taamneh, People v ............................................................... 1016
Talan v Stewart ................................................................... 1016
Taxpayers for Michigan Constitutional Government v
State of Michigan ............................................................ 1136
Taylor (City of), Ross Ed, LCC v ........................................ 1132
Taylor v Olympia Entertainment, Inc ................................ 872
Taylor v Univ Physician Group .......................................... 1016
Taylor, People v (Dexter) ..................................................... 962
Taylor, People v (James) ...................................................... 1018
Taylor, People v (McArthur) ................................................ 1132
Taylor, People v (Percy) ....................................................... 979
Taylor, People v (Robbie) ..................................................... 1028
Taylor, People v (Yasmeen) ................................................. 868
Terrell, In re ......................................................................... 1019
Tett, People v ........................................................................ 871
 TABLE OF CASES REPORTED lxxxv

PAGE

Theresa M Brennan, Judge 53rd Dist Court, In re .......... 851

Thomas, People v (Michael) ................................................ 871
Thomas, People v (Ricky) .................................................... 1043
Thomas, People v (Sean) ..................................................... 977
Thomas, People v (Terrance) ............................................... 872
Thompson, People v (Bryan) ............................................... 864
Thompson, People v (Markest) ........................................... 1081
Thompson, People v (Michael) ............................................ 997
Thompson, People v (Robert) .............................................. 871
Thomson Reuters Holdings, Nyman v ............................... 1069
Thornsberry v Detroit Tigers, Inc ...................................... 974
Thornton, People v ............................................................... 942
Threatt, People v ................................................................. 1039
Tibbs, People v ..................................................................... 997
Tietz, People v ...................................................................... 1011
Tillman, People v ................................................................. 978
Times, People v .................................................................... 1040
Timmons, People v (Jerrico) ................................................ 882
Tinman v Blue Cross & Blue Shield of Michigan ............. 1001
Tippins, In re ................................................................ 948, 1020
Todd Stein & Associates v Cazel ........................................ 942
Tomasik v State of Michigan .............................................. 956
Total Health Care, Inc, Slaga v .......................................... 1017
Town Centers Development Co, Inc v PND
Investments, LLC ........................................................... 1016
Towne, People v .................................................................... 865
Traill, Higgins v ................................................................... 1046
Transitional Health Services of Wayne, Cramer v ............ 1022
Transportation (Dep’t of) v Hernandez .............................. 996
Traver, People v ................................................................... 975
Trenkamp v Keyser ............................................................. 1040
Trombley-Martin, Ludowese v ............................................ 964
Truitte, People v .................................................................. 1134
Trumbull-Commonwealth LLC, Bou-Melhem v ................ 869
Tucker, People v (Fischer) ................................................... 974
Tucker, People v (Gregory) .................................................. 1016
Tumbleweed Saloon, Sanders v ............................... 1069, 1142
Turkish v William Beaumont Hospital .............................. 979
Turner v Farmers Ins Exch ................................................ 874
lxxxvi 505 MICHIGAN REPORTS

PAGE

Turner, People v ................................................................... 954

Turpin, People v ................................................................... 1043
Twp of Byron, DeRuiter v .................................. 130
Twp of Grayling v Berry ...................................................... 1132
Twp of Hartland, Hartland Glen Development, LLC v .... 1133
Twp of Spring Lake, Reaume v ................................. 876, 1108
Twp of West Bloomfield v Connolly .................................... 934
Tyson v Dawkins .................................................................. 881
Tyson, People v (Frank) ............................................ 868, 1134

U
US Bank National Ass’n, Brooks-Johnson v ...................... 1041
Ulrich, People v .................................................................... 997
Umashankar, Marquardt v ................................................. 1084
United Services Automobile Ass’n, Megerian v ........ 935, 1083
Univ Physician Group, Taylor v ......................................... 1016
Univ of Michigan, Ahmad v ................................................ 997
Upshaw, People v ................................................................. 1080
Uraz, State Treasurer v ...................................................... 1135
Uribe, People v ..................................................................... 1034

V
VHS Detroit Receiving Hospital, Inc v City of Detroit ..... 975
VHS Harper-Hutzel Hospital, Jaros v ............................... 1137
Van Buren, People v ............................................................ 851
Vandermeulen, People v ...................................................... 947
Vanderpool, People v .......................................... 391
Vann, People v ...................................................................... 938
Varner, People v ................................................................... 1030
Varney, People v ................................................................... 864
Vayko, People v .................................................................... 1039
Vega, People v ...................................................................... 1041
Venson, People v .................................................................. 979
Vick, People v ....................................................................... 1022
Virgin, People v .................................................................... 1039
Visner, People v .................................................................... 1044
Vontz v Attorney Grievance Comm .................................... 1044
Voris, People v ...................................................................... 1133
 TABLE OF CASES REPORTED lxxxvii

PAGE

Vuocolo, Minors, In re .......................................................... 1020

W
WB Holdings, LLC, Miller v ............................................... 1039
Wafer, People v ..................................................................... 1112
Waidelich, Bauer v ............................................................... 856
Waire, People v .................................................................... 1043
Walas, People v .................................................................... 865
Waldron, People v ................................................................ 1017
Walker v Attorney Grievance Comm .................................. 943
Walker, People v (Albert) .................................................... 946
Walker, People v (Alphonso) ............................................... 1042
Walker, People v (Dallas) .................................................... 1081
Walker, People v (Jeremy) ................................................... 995
Walker, People v (Jimmie) .................................................. 977
Walker, People v (Juan) ....................................................... 1057
Walker, People v (Reginald) ................................................ 1015
Walker, People v (Tyrone) ................................................... 942
Walls, People v ..................................................................... 1080
Walton & Adams, LLC v Service Station Installation
Bldg & Car Wash Equip, Inc ......................................... 940
Walton, People v .................................................................. 1016
Wang, People v ................................................... 239
Warner, People v .................................................................. 870
Warren, (City of) v Hoti ....................................................... 999
Warren, People v (Brian) ..................................................... 1141
Warren, People v (William) ................................................. 869
Warren, People v ................................................ 196
Wasenko v Auto Club Group ............................................... 1139
Washington v Oesterling ..................................................... 1132
Washington, People v (Gregory) ......................................... 1046
Washington, People v (Mark) .............................................. 1016
Wasikowski, People v .......................................................... 1042
Watkins, People v ................................................................ 1028
Watson, People v .................................................................. 976
Watts v Patel ........................................................................ 941
Watts, People v (Heather) ................................................... 1040
Watts, People v (Jeffrey) ..................................................... 1134
Watts, People v (Robert) ...................................................... 942
lxxxviii 505 MICHIGAN REPORTS

PAGE

Wayne, People v ................................................................... 1082

Wayne County Clerk, Burton-Harris v .............................. 1141
Wayne County Jail Inmates v Lucas ................................. 1142
Webb, People v (Jason) ........................................................ 978
Webb, People v (Tyler) ......................................................... 946
Wehrle, People v .................................................................. 980
Weissert, People v ................................................................ 941
Wells, People v (Tanaka) ..................................................... 940
Werth v Attorney Grievance Comm ................................... 948
Westfield Ins Co, Back in Motion Chiropractic, DC,
PLLC v ............................................................................. 994
Whateley, People v ............................................................... 979
Wheeler v City of Livonia ........................................ 940, 1020
White v Consol Rail Corp .................................................... 997
White v Detroit East Community Mental Health ..... 863, 997
White v EDS Care Mgt, LLC .............................................. 948
White v Matthews ............................................................... 947
White v Southeast Michigan Surgical Hospital ................ 947
White v St John Macomb Hospital .................................... 976
White, People v (Christopher) ............................................ 979
White, People v (Kevin) ....................................................... 1022
White, People v (Valden) ..................................................... 1132
Whitfield, People v ............................................................... 1081
Whitlow, People v ................................................................. 1018
Whitmore, People v .............................................................. 1015
Wilcox, People v ................................................................... 1041
Wilder, People v (Darrell) .................................................... 1052
Wilder, People v (Oswald) ................................................... 1043
Willett, People v ................................................................... 964
William Beaumont Hospital, Markel v .............................. 961
William Beaumont Hospital, Turkish v ............................. 979
William P Froling Revocable Living Trust v Pelican
Property, LLC .................................................................. 1081
Williams v Attorney Grievance Comm ............................... 1044
Williams v City of Eastpointe ............................................. 871
Williams v Grillo-Rogers ..................................................... 1040
Williams, People v (Anthony) ............................................. 1067
Williams, People v (Devon) ................................................. 1133
Williams, People v (Donald) ................................................ 941
 TABLE OF CASES REPORTED lxxxix

PAGE

Williams, People v (Dontrel) ............................................... 941

Williams, People v (Fred) .................................................... 1082
Williams, People v (John) .................................................... 1080
Williams, People v (Kolby) .................................................. 942
Williams, People v (Larry) .................................................. 871
Williams, People v (Reginald) ............................................. 870
Williams, People v (Ronald) ..................................... 1013, 1017
Williams, People v (Terry) ................................................... 1013
Williams, People v (Tommy) ................................................ 996
Williams, People v (William) ............................................... 1052
Willis, People v (Dorian) ........................................... 975, 1083
Wilmington Savings Fund Society FSB v Scott ................ 1017
Wilson v BRK, Inc ............................................................... 1015
Wilson v Gabites .................................................................. 1015
Wilson v Meijer Great Lakes Ltd Partnership .................. 1084
Wilson, City of East Lansing v ........................................... 1132
Wilson, People v (John) ............................................ 942, 1020
Wilson, People v (Travis) ..................................................... 1039
Wilson, People v (Victor) ..................................................... 1079
Wilson-Beauford, People v .................................................. 1043
Wimmer v Montano .................................. 981, 982, 1083, 1129
Wine, People v ...................................................................... 1040
Winer, People v .................................................................... 941
Winston, People v ................................................................ 1043
Wireman, People v ............................................................... 1041
Witherspoon, People v (Clifton) .......................................... 1044
Wogoman, People v .............................................................. 1017
Wolan, Brown v .................................................................... 1022
Wolter, People v ................................................................... 975
Wolverine World Wide, Inc, Nylaan v ......................... 931, 954
Wood, People v (Christopher) .............................................. 1042
Woods, People v (Curtis) ..................................................... 995
Woods, People v (Toby) ........................................................ 1141
Wright, Minors, In re ........................................................... 856
Wright, People v (Donald) ................................................... 1041
Wright, People v (Robert) .................................................... 977

X
XD Berry, Minor, In re ......................................................... 1038
xc 505 MICHIGAN REPORTS

PAGE

Y
Yang v Everest National Ins Co ......................................... 1068
Yatoma, People v .................................................................. 995
Young, People v (Demetris) ................................................. 870
Young, People v (Frederick) ................................................ 994
Young, People v (Stephen) ................................................... 1067

Z
Zahraie, People v ................................................................. 1132
Zelasko v Zelasko ................................................................. 1132
Ziyadeh, Johnson v .............................................................. 980
 TABLE OF SPECIAL ORDERS
NOT RELATED TO CASES

PAGE

PROPOSED ADOPTION OF MICHIGAN COURT RULES

MCR 1.112 ....................................................................... 1226
MCR 2.226....................................................................... 1262
MCR 3.811 ....................................................................... 1260
MCR 6.126....................................................................... 1233
PROPOSED AMENDMENTS OF MICHIGAN COURT RULES
MCR 1.109....................................................................... 1201
MCR 2.002....................................................................... 1204
MCR 2.108....................................................................... 1265
MCR 2.302 ...................................................................... 1205
MCR 2.306....................................................................... 1205
MCR 2.315....................................................................... 1205
MCR 2.403....................................................................... 1252
MCR 2.404....................................................................... 1255
MCR 2.405....................................................................... 1255
MCR 2.603....................................................................... 1205
MCR 3.101....................................................................... 1206
MCR 3.222....................................................................... 1207
MCR 3.618....................................................................... 1207
MCR 3.804....................................................................... 1260
MCR 3.971....................................................................... 1222
MCR 3.972....................................................................... 1222
MCR 3.973....................................................................... 1222
MCR 3.977....................................................................... 1223
MCR 3.993....................................................................... 1223
MCR 4.201....................................................................... 1208,
1263
MCR 5.140....................................................................... 1260
MCR 5.404....................................................................... 1260

xci
xcii 503 MICHIGAN REPORTS

PAGE

MCR 6.310....................................................................... 1226,

1233
MCR 6.425....................................................................... 1226
MCR 6.428....................................................................... 1228
MCR 6.429....................................................................... 1228,
1234
MCR 6.431....................................................................... 1228,
1235
MCR 6.509....................................................................... 1235
MCR 7.118 ....................................................................... 1210
MCR 7.202....................................................................... 1224
MCR 7.204....................................................................... 1224,
1229
MCR 7.205....................................................................... 1229,
1235
MCR 7.208....................................................................... 1230
MCR 7.211 ....................................................................... 1230
MCR 7.212....................................................................... 1241
MCR 7.216....................................................................... 1245
MCR 7.305....................................................................... 1230
MCR 7.312....................................................................... 1243
MCR 7.314....................................................................... 1232
MCR 8.119 ....................................................................... 1208
PROPOSED AMENDMENTS OF RULES CONCERNING THE STATE BAR OF
MICHIGAN
Rule 16............................................................................. 1257
Rule 20............................................................................. 1258
PROPOSED AMENDMENTS OF RULES FOR THE BOARD OF LAW EXAMINERS
Rule 4............................................................................... 1261
PROPOSED ADOPTION OF ADMINISTRATIVE ORDERS
NO. 2020-X....................................................................... 1211
NO. 2020-XX .................................................................... 1246,
1250
TABLE OF ADMINISTRATIVE ORDERS
AND ADOPTED RULE CHANGES

ADMINISTRATIVE ORDERS
No. 2020-1 ....................................................................................... xcix
No. 2020-2......................................................................................... cii
No. 2020-3................................................................................... cxxvii
No. 2020-4 .................................................................................... cxxix
No. 2020-5 ..................................................................................... cxxx
No. 2020-6 .................................................................................... cxxxi
No. 2020-7 .................................................................................. cxxxiv
No. 2020-8 ................................................................................... cxxxv
No. 2020-9 .................................................................................. cxxxvi
No. 2020-10 ................................................................................ cxxxix
No. 2020-11 ...................................................................................... cxl
No. 2020-12.................................................................................... cxlii
No. 2020-13 .................................................................................. cxliii
No. 2020-14................................................................................... cxlvi
No. 2020-15................................................................................... cxlix
No. 2020-16....................................................................................... cli
No. 2020-17 ..................................................................................... clii
No. 2020-18 .................................................................................. clviii
No. 2020-19 ................................................................................ clxviii

AMENDED ADMINISTRATIVE ORDERS

No. 2014-23 ..................................................................................... xcv
No. 2020-3..................................................................................... cxliv
No. 2020-13 .................................................................................. cxliii
No. 2020-17...................................................................................... clx

xciii
xciv 504 MICHIGAN REPORTS

RESCINDED ADMINISTRATIVE ORDERS

No. 2020-2 .................................................................................. clxviii

RULES AMENDED

MICHIGAN COURT RULES OF 1985

MCR 3.206 ....................................................................... clxxi, ccxviii
MCR 3.229 ................................................................................ clxxxvi
MCR 3.501 .................................................................................. cxcvii
MCR 3.802 ................................................................................ clxxviii
MCR 3.931.................................................................................... ccxix
MCR 3.961.................................................................................... ccxix
MCR 3.971..................................................................................... ccxx
MCR 3.972.................................................................................... ccxxi
MCR 3.973 .................................................................................. ccxxii
MCR 3.974 ................................................................................. ccxxiii
MCR 4.202.................................................................................. ccxxiv
MCR 5.117 ................................................................................. clxxxii
MCR 6.425..................................................................................... ccxv
MCR 6.508 ................................................................................... ccxiii
MCR 6.610...................................................................................... cciv
MCR 8.108 .................................................................................. ccxvii
MCR 8.110 ................................................................................ clxxxiii
MCR 8.115 ............................................................................... clxxxvii
MCR 8.301.................................................................................... ccxiv
MCR 9.123 .................................................................................... clxxx

LOCAL COURT RULES, COURT OF CLAIMS

LCR 2.119 .................................................................................... clxxv

RULES CONCERNING THE STATE BAR OF MICHIGAN

Rule 2 .......................................................................................... clxxvi

SPECIAL ADMINISTRATIVE INQUIRIES

File No. 2016-46 .............................................................................. cix
AMENDED ADMINISTRATIVE ORDER
No. 2014-23
AMENDMENT OF ADMINISTRATIVE ORDER NO. 2014-23

Entered December 18, 2019, effective February 1, 2020 (File No.

2019-37)—REPORTER.

AO No. 2014-23 — E-filing System for the Michigan

Supreme Court and the Michigan Court of Appeals.
On order of the Court, effective February 1, 2020, all
documents filed by or on behalf of attorneys who are
licensed to practice law in the State of Michigan or who
are admitted to temporarily appear and practice under
MCR 8.126(A), must be filed electronically with the
Michigan Supreme Court (MSC) and the Michigan
Court of Appeals (COA) using the MiFILE system
unless excused by court order upon a motion showing
good cause. Self-represented litigants may, but are not
required to, electronically file their documents with the
Courtimmediately, the Michigan Supreme Court
(MSC) and the Michigan Court of Appeals (COA) are
authorized to implement an electronic filing and elec-
tronic service system.
Although the Court of Appeals has had an e-filing
system available for several years, this new system by
ImageSoft, Inc., called TrueFiling, will enable filers to
e-file documents with either the MSC or COA. The
TrueFiling system allows for initiating a new case or
e-filing a document into an existing case. The system is
xcv
xcvi 505 MICHIGAN REPORTS

designed to maximize ease of its use and promote

utility for e-filers, whether they are attorneys or self-
represented litigants.
Under this system, e-filing will initially be voluntary
for filers in all case types, but the Court anticipates
that e-filing will eventually become mandatory in both
courts. The experience gained from this voluntary
program will help determine the future parameters of
an expected mandatory program.
Although this order sets out the manner in which
e-filed documents are submitted to the courts or served
on other parties to an action, it does not change the
time periods required for taking action under the
Michigan Court Rules, except as explicitly provided.
I. Definitions
For purposes of this order:
(A) “Authorized user” means a party, a party’s attor-
ney, or court staff who is registered in the MiFILETrue-
Filing system (https://mifile.courts.michigan.gov/www.
truefiling.com) and who has satisfied the requirements
imposed by the courts relating to electronic filing and
service procedures. A court may revoke user authoriza-
tion for good cause as determined by the court, including
but not limited to a security breach or failure to comply
with system requirements. An authorized user must
notify the court and ImageSoft, Inc., of any change in
the authorized user’s firm name, delivery address, tele-
phone number, fax number, e-mail address, or other
required registration information. This notice must oc-
cur as soon as practicable but no later than 7 days after
the effective date of the change.
(B)-(D) [Unchanged.]
 AMENDED ADM ORDER NO. 2014-23 xcvii

II. Scope
(A) [Unchanged.]
(B) Registered users agree to accept e-service
through the MiFILETrueFiling system unless and un-
til the user’s registration is terminated. Service on
nonregistered users must be accomplished in a manner
allowed under the court rules, such as by first-class
mail, hand delivery, or e-mail under MCR 2.107(C)(4).
III. Signatures [Unchanged.]
IV. Retention of Documents [Unchanged.]
V. Official Case Record [Unchanged.]
VI. Payment of Filing Fees and Costs
(A) [Unchanged.]
(B) Fees and costs are paid electronically through
the MiFILETrueFiling system.
VII. Transmission Failures and System Outages
(A) [Unchanged.]
(1) [Unchanged.]
(2) the transmission failed because of the failure of
the MiFILETrueFiling system to process the electronic
document or because of the court’s computer system’s
failure to receive the document; and
(3) [Unchanged.]
(B) Scheduled system outages, such as for system
maintenance, shall be posted on the court and
MiFILETrueFiling websites and will be scheduled
before 9:00 a.m. or after midnight on business days
whenever feasible.
(C) Notice will be provided on the court and
MiFILETrueFiling websites if the MiFILETrueFiling
system becomes unavailable for an extended or uncer-
tain period. The notice shall indicate whether filers are
xcviii 505 MICHIGAN REPORTS

responsible for filing the documents conventionally in

order to meet the deadlines imposed by statute or court
rule.
VIII. Filing Completion
(A) A document filed electronically shall be consid-
ered filed with the court when the transmission to the
MiFILETrueFiling system is complete and the system
reflects a “Filed” status.
(B) [Unchanged.]
(C) Upon completion of an e-filing transmission to
the MiFILETrueFiling system, the system shall issue
to the filer and to the court a notification that includes
the date and time of the transmission.
IX. Time for Filing
Filings may be transmitted to the MiFILETrueFiling
system twenty-four hours a day, seven days a week
(with the exception of the system’s downtime required
for periodic maintenance). However, a document elec-
tronically filed or served after 11:59 p.m. Eastern Time,
or on a Saturday, Sunday, or court holiday (see MCR
8.110[D][2]) shall be deemed to have been filed or served
on the next business day. See MCR 1.108.
X. Format of Documents
The MiFILETrueFiling system accepts the following
file types for e-filed documents: Microsoft Word (DOC
and DOCX), PDF, text files (TXT), images such as a
TIFF, PNG or JPG. The courts strongly prefer that
original pleadings be submitted as Word documents,
text files, or searchable PDFs. Nonoriginal documents
may be scanned into PDF as nonsearchable images.
 ADMINISTRATIVE ORDER
No. 2020-1
IN RE EMERGENCY PROCEDURES IN COURT FACILITIES

Entered March 15, 2020, effective immediately (File No. 2020-08)—

REPORTER.

Governor Whitmer having declared a state of emer-

gency in response to the serious health risks posed by
COVID-19, trial courts are authorized to implement
emergency measures to reduce the risk of transmission
of the virus and provide the greatest protection pos-
sible to those who work and have business in our
courts. In support of this goal, on order of the Court,
each trial court judge may implement emergency mea-
sures regarding court operations to enable continued
service while also mitigating the risk of further trans-
mission of the virus. Subject to constitutional and
statutory limitations, such emergency measures may
include:
1. Trial courts may adjourn any civil matters and
any criminal matters where the defendant is not in
custody; where a criminal defendant is in custody, trial
courts should expand the use of videoconferencing
when the defendant consents;
2. In civil cases, trial courts should maximize the
use of technology to enable and/or require parties to

xcix
c 505 MICHIGAN REPORTS

participate remotely. Any fees currently charged to

allow parties to participate remotely should be waived;
3. Trial courts may reduce the number of cases set
to be heard at any given time to limit the number of
people gathered in entranceways, lobbies, corridors, or
courtrooms;
4. Trial courts should maximize the use of technol-
ogy to facilitate electronic filing and service to reduce
the need for in-person filing and service;
5. Trial courts should, wherever possible, waive
strict adherence to any adjournment rules or policies
and administrative and procedural time requirements;
6. Trial courts should coordinate with the local
probation departments to allow for discretion in the
monitoring of probationers’ ability to comply with
conditions without the need for amended orders of
probation;
7. Trial courts should take any other reasonable
measures to avoid exposing participants in court pro-
ceedings, court employees, and the general public to
the COVID-19 virus;
8. In addition to giving consideration to other obli-
gations imposed by law, trial courts are urged to take
into careful consideration public health factors arising
out of the present state of emergency: a) in making
pretrial release decisions, including in determining
any conditions of release, b) in determining any condi-
tions of probation;
9. If a Chief Judge or the court’s funding unit
decides to close the court building to the public, the
Chief Judge shall provide SCAO with the court’s plan
to continue to provide critical services, including han-
dling emergency matters.
 ADM ORDER NO. 2020-1 ci

The emergency measures authorized in this order

are effective until close of business Friday, April 3,
2020, or as provided by subsequent order.
During the state of emergency, trial courts should be
mindful that taking reasonable steps to protect the
public is more important than strict adherence to
normal operating procedures or time guidelines stan-
dards. The Court encourages trial courts to cooperate
as much as possible with the efforts of the Governor
and other state and local officials to mitigate the
spread of COVID-19, consistent with our duty to pro-
vide essential court services, protect public safety, and
remain accessible to the public.
It is so ordered, by unanimous consent.
 ADMINISTRATIVE ORDER
No. 2020-2
ORDER LIMITING ACTIVITIES/ASSEMBLAGES
IN COURT FACILITIES

Entered March 18, 2020, effective immediately (File No. 2020-08);

rescinded by Administrative Order No. 2020-19, entered June 26,
2020—REPORTER.

To confront this unprecedented public health crisis,

Michigan trial courts must ensure that court facilities
are taking every measure possible to protect the public
and court personnel. In EO 2020-11, Governor Whit-
mer ordered restrictions on assemblages to no more
than 50 people. President Trump has issued guidelines
urging the public to avoid assemblages of more than 10
people and practice social distancing.
Pursuant to 1963 Const, Art VI, § 4, which provides
for the Supreme Court’s general superintending control
over all state courts, trial courts are ordered to limit
access to courtrooms and other spaces to no more
than 10 persons, including staff, and to practice
social distancing and limit court activity to only
essential functions, which include the following:
I. CIRCUIT COURTS
A. Criminal Proceedings
1. To the extent possible and consistent with MCR
6.006 and a defendant’s constitutional and statutory
cii
 ADM ORDER NO. 2020-2 ciii

rights, courts should conduct the following hearings

remotely using two-way interactive video technology or
other remote participation tools:
a. For in-custody criminal defendants, pleas, sen-
tencings, arraignments on the information under MCR
6.113 (unless waived), probation violation arraign-
ments under MCR 6.445(B), and emergency motions
regarding bond. If the defendant is not in custody,
these matters should be adjourned.
b. Processing of criminal extradition matters for
in-custody defendants pursuant to MCL 780.9. The
issue of bail should be addressed for those eligible
defendants as provided in MCL 780.14.
2. All other criminal matters, including all non-
emergency matters where the defendant is not in
custody, shall be adjourned. All criminal jury trials
shall be adjourned until after April 3, 2020.
3. With regard to matters involving forensic evalu-
ations of juveniles or adults for competence to stand
trial, competence to waive Miranda rights, and crimi-
nal responsibility, courts shall permit the use of video
technology. The evaluator shall note in the forensic
opinion whether the use of video technology impeded
an impartial and accurate clinical assessment, and, if
so, notify the court that an in-person evaluation must
be scheduled.
B. General Civil and Business Court Cases
1. Infectious disease (ID) proceedings under MCL
333.5201 et seq.
2. Limited proceedings regarding personal protec-
tion orders (PPOs):
a. Review and determination of requests for per-
sonal protection orders (PPO) under MCL 600.2950
and 600.2950a;
civ 505 MICHIGAN REPORTS

b. Review and determination of emergency request

to extend a PPO pursuant to MCR 3.707(B);
c. Initial hearing for in-custody respondent arrested
for alleged violation of PPO to allow court to address
issue of bond under MCL 764.15b.
3. All other civil and business court matters, includ-
ing trials, must be conducted remotely using two-way
interactive video technology or other remote participa-
tion tools or they must be adjourned until after April 3,
2020.
C. Family Court Matters
1. Review and determine requests for ex parte relief
in domestic relations proceedings necessary for the
safety and well-being of a litigant and/or children
under MCR 3.207.
2. Safe delivery of newborn child (NB) proceedings
under MCL 712.1 et seq.
3. Waiver for parental consent (PW) proceedings
under the Parental Rights Restoration Act, MCL
722.901, et seq.
4. Juvenile delinquency proceedings:
a. hearings required within 24 hours of a juvenile’s
apprehension or detention pursuant to MCR 3.935 and
MCR 3.944
b. arraignments for in-custody designated and adult
court waiver proceedings pursuant to MCR 3.951 (des-
ignated) and MCR 3.950 (waiver, circuit court arraign-
ment).
5. Child protective proceedings:
a. hearings required within 24 hours of taking a
child into protective custody pursuant to MCR 3.965
and MCR 3.974;
 ADM ORDER NO. 2020-2 cv

b. permanency planning hearings that are required

pursuant to MCL 712A.19a.
6. Friend of the court arraignments on bench war-
rants pursuant to MCR 3.221(B). An arrested indi-
vidual must be promptly arraigned if the underlying
contempt hearing cannot be held within 48 hours. In
addition, Friend of the Court offices should set priori-
ties to continue the following services:
a. Courts should continue to make staff available to
record child support orders in MiCSES as long as there
are unrecorded orders so the SDU can send out child
support payments.
b. To the extent it is safely possible, courts should
continue to make staff available to implement income
withholding notices so payments can be deducted and
paid automatically. To the extent it is not safely pos-
sible to make staff available for this purpose, most
income withholding notices should be issued automati-
cally when there is a New Hire Directory match.
c. To the extent it is safely possible, courts should
continue to make staff available to implement national
medical support notices to allow health care coverage
to be implemented as quickly as possible.
7. All other family court matters, including trials,
must be conducted remotely using two-way interactive
video technology or other remote participation tools or
they must be adjourned until after April 3, 2020.
D. Other emergency motions in the discretion of the
court.
II. DISTRICT COURTS
A. Criminal Matters — To the extent possible and
consistent with MCR 6.006 and a defendant’s consti-
tutional and statutory rights, courts should conduct
cvi 505 MICHIGAN REPORTS

the following hearings remotely using two-way inter-

active video technology or other remote participation
tools:
1. For in-custody criminal defendants, pleas, sen-
tencings, arraignments under MCR 6.104, bond mo-
tions under MCR 6.106 or MCR 6.108, probable cause
conferences under MCR 6.108, and preliminary exami-
nations under MCR 6.110.
2. Processing of criminal extradition matters for
in-custody defendants pursuant to MCL 780.9. The
issue of bail should be addressed for those eligible
defendants as provided in MCL 780.14.
3. With regard to matters involving forensic evalu-
ations of juveniles or adults for competence to stand
trial, competence to waive Miranda rights, and crimi-
nal responsibility, courts shall permit the use of video
technology. The evaluator shall note in the forensic
opinion whether the use of video technology impeded
an impartial and accurate clinical assessment, and, if
so, notify the court that an in-person evaluation must
be scheduled.
4. Review and determination of requests for search
warrants should continue pursuant to MCL 780.651.
5. Review and issuance of arrest warrants pursuant
to MCL 764.1a for crimes that present a danger to
public safety.
6. All other criminal matters, including all non-
emergency matters where the defendant is not in
custody, shall be adjourned. All criminal jury trials
shall be adjourned until after April 3, 2020.
B. Civil Matters — All matters must be conducted
remotely using two-way interactive video technology or
other remote participation tools or they must be ad-
journed until after April 3, 2020.
 ADM ORDER NO. 2020-2 cvii

C. Traffic Matters — All civil infractions, including

trials, must be conducted remotely using two-way
interactive video technology or other remote participa-
tion tools or they must be adjourned until after April 3,
2020. No bench warrants shall be issued for individu-
als failing to appear during the state of emergency.
D. Other emergency motions in the discretion of the
court.
III. PROBATE COURTS
A. Proceedings regarding involuntary mental health
treatment under Chapter 4 of the Mental Health Code,
including the following:
1. Pick-up / transportation orders pursuant to MCL
330.1436 and 330.1426;
2. Petitions for initial or continuing involuntary
hospitalization pursuant to MCL 330.1472a.
B. Petitions for immediate funeral / burial arrange-
ments pursuant to MCL 700.3206 and 700.3614.
C. Emergency petitions filed by Adult Protective
Services under MCL 400.11b(6).
D. Emergency petitions for guardianship pursuant
to MCL 700.5312.
E. Emergency conservatorships and other protective
orders pursuant to MCL 700.5407 in those cases with
immediate pending evictions/foreclosures/shut off no-
tices.
F. Estates where immediate access to residence is
necessary under MCL 700.5407.
G. Ex parte requests for temporary restraining or-
ders.
H. With regard to proceedings involving mental
health and guardianship matters, courts shall permit
cviii 505 MICHIGAN REPORTS

the use of video technology unless a health and safety

issue requires an in-person appearance.
I. All other probate court matters must be conducted
remotely using two-way interactive video technology or
other remote participation tools or they must be ad-
journed until after April 3, 2020.
J. Other emergency motions in the discretion of the
court.
Further, the court must work with the county clerk
to ensure that if in-person filing of court pleadings is
limited due to the state of emergency, court pleadings
will continue to be accepted for filing by other means,
such as U.S. mail, e-Filing, email, or facsimile.
Further, with regard to all courts, all matters that
are resolved by agreement of the parties and with
approval of the court that do not involve any appear-
ance at the court may proceed during the pendency of
this order. Such agreement may be documented using
technology as authorized in AO No. 2020-1, dated
March 15, 2020. This authority does not extend to any
matters suspended by executive action of the Governor.
This order shall remain in effect until the close of
business Friday, April 3, 2020, or as provided by sub-
sequent order.
SPECIAL ADMINISTRATIVE INQUIRY
SPECIAL ADMINISTRATIVE INQUIRY REGARDING QUESTIONS
RELATING TO MENTAL HEALTH ON THE
MICHIGAN BAR EXAMINATION APPLICATION

Entered March 18, 2020, effective for the February 2021 Michigan
Bar Examination (File No. 2016-46)—REPORTER.

By order dated January 23, 2019, the Court solicited

input on whether and in what form questions relating
to an applicant’s mental health history should be
included on the Michigan Bar Examination applica-
tion. On order of the Court, an opportunity for com-
ment in writing having been provided, and consider-
ation having been given to the comments received, the
Court directs that the Board of Law Examiners remove
current questions 54(a) and 54(b) from the application,
and insert question 29 of the National Conference of
Bar Examiners model questions as follows:
Within the past five years, have you exhibited any
conduct or behavior that could call into question your
ability to practice law in a competent, ethical, and profes-
sional manner?

This revision will be effective for the February 2021

Michigan Bar Examination.
MCCORMACK, C.J. (concurring). In January 2019,
this Court solicited public comments on whether the
application for the Michigan Bar Examination should
cix
cx 505 MICHIGAN REPORTS

continue to include questions regarding an applicant’s

mental health and treatment history.
As noted in our order, until now an applicant to the
bar was required to disclose whether they had ever
received or refused treatment for a mental health con-
dition that “permanently, presently or chronically” im-
pairs the applicant’s “ability to cope with ordinary
demands of life” or to exercise the types of professional
responsibilities that are common to the practice of law.1
In asking the public whether the Court should elimi-
nate or revise these questions, we noted a trend among
state bar admission authorities nationwide of elimi-
nating questions that ask applicants to divulge their
mental health history, and instead asking applicants
whether they had exhibited conduct or behavior that
would negatively affect their ability to practice law in
a competent, ethical, and professional manner.
Shortly after our request for comment, the Confer-
ence of Chief Justices issued a resolution urging states

1
The personal affidavit section of the bar application includes Ques-
tions 54a and 54b, which ask:
Have you ever had, been treated or counseled for, or refused
treatment or counseling for, a mental, emotional, or nervous
condition which permanently, presently or chronically impairs or
distorts your judgment, behavior, capacity to recognize reality or
ability to cope with ordinary demands of life? If yes, provide the
names and addresses of all involved agencies, institutions, physi-
cians or psychologists or other health care providers and describe
the underlying circumstances or the diagnosis, treatment or hos-
pitalization.
* * *
Have you ever had, been treated or counseled for, or refused
treatment or counseling for, a mental, emotional, or nervous
condition which permanently, presently or chronically impairs
your ability to exercise such responsibilities as being candid and
truthful, handling funds, meeting deadlines, or otherwise repre-
senting the interest of others?
 SPECIAL ADMINISTRATIVE INQUIRY cxi

to stop asking bar applicants about their mental health

history, diagnoses, or treatment.2 As an alternative to
“diagnosis-based” questions, the Conference endorsed
the sort of “conduct-based” approach referenced in our
request for comment. The Conference’s resolution
echoed a similar recommendation from the National
Task Force on Lawyer Well-Being.3
These recommendations—and this Court’s changes
to the Board of Law Examiners’ questions—do not
“prioritize the needs of the applicant over the need to
protect the public,” as our dissenting colleague con-
tends. Rather, they reflect a growing recognition that
questions concerning an applicant’s mental health are
often based on unfounded generalizations about mental
health diagnoses, and that admission standards that
depend on the mere existence of a mental health diag-
nosis (and not an applicant’s conduct) would violate the
Americans with Disabilities Act, 42 USC 12101 et seq.
Most commenters—including two of our state’s
prominent law schools as well as the Michigan Attor-
ney Grievance Commission, the body charged with
investigating and prosecuting instances of attorney
misconduct—favored the elimination of diagnosis-
based questions altogether, as several of our sister
states have done.4 These commenters noted the dearth

2
See Conference of Chief Justices, Resolution 5, In Regard
to the Determination of Fitness to Practice Law (February 13, 2019),
available at <https://www.ctbar.org/docs/default-source/ lawyer-wellbeing
/resolution-5_admission-to-bar-resol-item-iv-1> (accessed February 3,
2020) [https://perma.cc/H7DA-F33A].
3
See National Task Force on Lawyer Well-Being, The Path to Lawyer
Well-Being: Practical Recommendations for Positive Change (August 14,
2017), p 27, available at <https://www.americanbar.org/content/dam
/aba/images/abanews/ThePathToLawyerWellBeingReportFINAL.pdf>
(accessed February 3, 2020) [https://perma.cc/YD8V-AQZ3].
4
A recent report issued by the New York State Bar Association
indicates that 10 states—Alaska, Arizona, California, Connecticut,
cxii 505 MICHIGAN REPORTS

of evidence supporting the view that past mental

health diagnoses are accurate predictors of future
attorney misconduct. Instead, diagnosis-based ques-
tions were criticized for being unfocused, based on
generalization and misconceptions about mental
health, and lacking empirical evidence to support their
use. (Indeed, the automatic association of mental
health diagnoses with incapacity and disablement was
a stigma that many commenters recognized regardless
of their position on eliminating diagnosis-based ques-
tions altogether.) Many commenters voiced concern
that diagnosis-based questions like those under con-
sideration have the unintentional effect of deterring
aspiring attorneys from seeking assistance.5 And a
Illinois, Iowa, Massachusetts, Mississippi, Pennsylvania and
Washington—do not include any questions on their applications that
ask applicants about a mental health diagnosis or impairment. See
Working Group on Attorney Mental Health of the New York State Bar
Association, The Impact, Legality, Use and Utility of Mental Disability
Questions on the New York State Bar Application (November 2, 2019),
pp 1-2, available at <https://www.nysba.org/mentalhealthreport/> (ac-
cessed February 3, 2020) [https://perma.cc/RK4V-T7KV].
5
There is research to support this view. In a 2014 survey of 3,300 law
school students at 15 law schools nationwide, 45% of respondents
indicated that the potential threat to bar admission was a factor that
would discourage them from seeing a health professional for mental
health concerns. See Organ, Jaffe & Bender, Suffering in Silence: The
Survey of Law Student Well-Being and the Reluctance of Law Students
to Seek Help for Substance Use and Mental Health Concerns, 66 J Legal
Educ 116, 123-124, 141 (2016), available at <https://jle.aals.org/
home/vol66/iss1/13/> (accessed February 3, 2020) [https://perma.cc/
T9CY-RT6D].
Additionally, as several commenters noted, Questions 54a and 54b
ask applicants to disclose whether they have “been treated or counseled
for, or refused treatment or counseling for, a mental, emotional, or
nervous condition . . . .” An applicant suffering from an undiagnosed
condition and who has simply never sought treatment may honestly
answer “no” to these questions, while an applicant who has been
diagnosed or sought treatment must answer “yes.”
 SPECIAL ADMINISTRATIVE INQUIRY cxiii

handful of commenters noted the incongruity that once

an individual is admitted to practice law in Michigan,
they have no continuing obligation to apprise state bar
regulators of new developments in their mental health
(nor, to my knowledge, has such an obligation ever
been seriously proposed).
We are well aware of the troubling statistics cited by
our dissenting colleague concerning the rates of sub-
stance use and mental health problems in our profes-
sion, among licensed attorneys, and law students alike.
And yet the Board of Law Examiners reports that less
than 2.5% of bar applicants answered Questions 54a or
54b in the affirmative, with less than 11% of those
applications requiring further “extensive investigation”
by the Board. Those numbers hardly support Justice
ZAHRA’s view that Questions 54a and 54b are so neces-
sary to the Board’s mandate that eliminating them will
prevent the Board from effectively vetting applicants.
Applicants who have exhibited behavior that calls into
question their ability to practice law in a competent,
ethical, and professional manner are expected to dis-
close that fact to the Board. And in cases where an
applicant’s condition or impairment has resulted in
criminal consequences, substance addiction or depen-
dency, or licensure sanctions, such consequences must
be disclosed in response to other questions on the
application. By focusing the Board’s inquiry on an
applicant’s conduct, rather than using an applicant’s
status or diagnosis as a proxy for behavior, we hope
aspiring attorneys will recognize that mental health
issues are not professional disqualifications. After all,
there is broad agreement that applicants (as well as
licensed attorneys) should be encouraged to seek treat-
ment and counseling for mental health issues. The
change we make today will allow applicants to do so
cxiv 505 MICHIGAN REPORTS

without fear that their decision will subject them to

increased scrutiny during the admission process.
I fully endorse this Court’s decision to eliminate
questions that probe the applicant’s mental health and
treatment history and ask the applicant to divulge that
history. I favor the approach we take today, which
inquires about the conduct exhibited by the applicant
prior to admission. I believe this change will allow for
an equally effective admission review process, prevent
discrimination on the basis of an applicant’s disability,
and destigmatize and encourage mental health treat-
ment in the legal profession.
BERNSTEIN, J., joins the statement of MCCORMACK,
C.J.
VIVIANO, J. (concurring in part and dissenting in
part). I agree with the Court’s decision today to elimi-
nate Questions 54a and 54b from the application for
the Michigan Bar Examination. I do not agree, how-
ever, that Model Question 29 promulgated by the
National Conference of Bar Examiners (NCBE) is, by
itself, a sufficient replacement. Instead, I share many
of the concerns raised by Justice ZAHRA regarding the
Court’s decision to circumscribe the Board of Law
Examiners’ (BLE’s) ability to probe an applicant’s
current mental health conditions and impairments.
But, rather than maintaining the status quo, as Jus-
tice ZAHRA urges, in addition to adopting NCBE Model
Question 29, I would also adopt NCBE Model Ques-
tions 30 and 31.1 Model Questions 30 and 31 inquire
into conditions or impairments that an applicant cur-

1
NCBE Model Question 29 is cited in the Court’s order, while
Questions 54a and 54b on the application for the Michigan Bar Exami-
nation are cited both in Justice ZAHRA’s dissenting statement and in
footnote 1 of Justice MCCORMACK’s concurring statement. Model Ques-
tions 30 and 31 provide:
 SPECIAL ADMINISTRATIVE INQUIRY cxv

rently has, or has raised in a recent proceeding, that

may affect the applicant’s fitness to practice law. The
NCBE adopted all three questions following a Depart-
ment of Justice (DOJ) investigation into questions
pertaining to an applicant’s mental health status on
the application for the Louisiana Bar. The report
following that investigation concluded that inquiries
into an applicant’s prior mental health diagnosis and
treatment history were “unnecessary” to ascertain an
applicant’s current fitness to practice law and that,
instead, those inquiries “screen[ed] out” individuals
with disabilities.2 The report recommended the use of
conduct-based questions because, as one federal court
has noted, “ ‘past behavior is the best predictor of
present and future mental fitness[.]’ ”3 But the report

30. Do you currently have any condition or impairment (in-

cluding, but not limited to, substance abuse, alcohol abuse, or a
mental, emotional, or nervous disorder or condition) that in any
way affects your ability to practice law in a competent, ethical,
and professional manner?
31. Within the past five years, have you asserted any condi-
tion or impairment as a defense, in mitigation, or as an explana-
tion for your conduct in the course of any inquiry, any investiga-
tion, or any administrative or judicial proceeding by an
educational institution, government agency, professional organi-
zation, or licensing authority; or in connection with an employ-
ment disciplinary or termination procedure? [National Confer-
ence of Bar Examiners, Character and Fitness Investigations,
Character & Fitness Resources—Sample Application, available at
<http://www.ncbex.org/dmsdocument/134> (accessed March 12,
2020) [https://perma.cc/7E27-LJNV].]
2
The United States’ Investigation of the Louisiana Attorney Licensure
System Pursuant to the Americans With Disabilities Act (ADA), DJ
No. 204-32M-60, 204-32-88, 204-32-89, available at <https://www.
ada.gov/louisiana-bar-lof.pdf> (accessed March 12, 2020) [https://perma.
cc/5WAP-UK6F], pp 19-23.
3
Id. at 22, quoting Clark v Virginia Bd of Bar Examiners, 880 F Supp
430, 446 (1995).
cxvi 505 MICHIGAN REPORTS

approved of certain mental health related questions

that inquired into conditions or impairments that
affect an applicant’s current fitness to practice law or
that aid a state bar in fairly evaluating proceedings in
which such a condition was asserted.4
I concur in the Court’s decision to adopt Model
Question 29 for the reasons stated in the DOJ report,
but I also believe it is necessary to adopt Model
Questions 30 and 31. The BLE has the duty and
responsibility to ensure that all attorneys are compe-
tent to practice law in this state. As the DOJ report
acknowledged, it is appropriate, and indeed essential,
for the BLE to inquire into the current conditions or
impairments that an applicant has that may affect his
or her current ability to practice law. Further, an
inquiry into conditions that have been raised in past
proceedings also allows the BLE to evaluate fairly
any disciplinary or legal proceedings in which an
applicant was involved. Those inquiries provide the
BLE with the ability to evaluate an applicant’s past
behavior that may shed light on his or her present or
future mental fitness to provide legal services. I
believe that Model Questions 29, 30, and 31, when
taken together, strike the right balance between the
duty of the BLE to protect the public and legal
profession by ascertaining an applicant’s current fit-
ness to practice law, on the one hand, and to protect
the rights and needs of bar applicants to be free from
unnecessary or discriminatory inquiries into prior
irrelevant medical history, on the other. Therefore,
while I concur in the majority’s decision to adopt
Model Question 29, I dissent from its decision not to
also adopt Model Questions 30 and 31.

4
Id. at 22-23.
 SPECIAL ADMINISTRATIVE INQUIRY cxvii

ZAHRA, J. (dissenting). In Michigan, you cannot be-

come licensed to participate in certain occupations or
professions, or assume certain state-sanctioned re-
sponsibilities, without disclosing the current state of
your mental health. For instance, you cannot become a
law enforcement officer,1 practice medicine in many
hospitals,2 or pilot commercial airliners3 without an-
swering specific questions about your mental health.
Similarly, you cannot become a foster parent,4 adopt a
child,5 or carry a concealed weapon6 without answering
specific questions about your mental health. This is for
good reason. We want to ensure that those with ongo-
ing mental health concerns can competently execute
these great responsibilities. It should therefore go
without saying that, because law is “a licensed profes-
sion that influences all aspects of society, economy, and
government, levels of impairment among attorneys are
of great importance and should therefore be closely

1
MCL 28.609(1)(d).
2
A cursory view of the some of the leading hospitals within the state
shows that they all impose a requirement to disclose current mental
illness: see University of Michigan Hospitals and Health Centers,
Medical Staff Bylaws <http://www.med.umich.edu/mss/pdf/bylaws.pdf>,
p 29 (accessed January 29, 2020) [https://perma.cc/4NK7-FUEP]; Henry
Ford Hospital, Medical Staff Bylaws <https://www.henryford.com/
/-/media/files/henry-ford/hcp/physician-careers/hfbylaws.pdf?la=en>, p 23
(accessed January 29, 2020) [https://perma.cc/V9UT-HE3H]; Beaumont
Health System, Bylaws of the Medical Staffs, <https://providers.
beaumont.org/docs/default-source/governance/download.pdf?sfvrsn=f8e13
6b5_4>, p 14 (accessed January 29, 2020) [https://perma.cc/Y4B3-G6JP].
3
14 CFR 67.107.
4
MCL 722.115(3); Mich Admin Code, R 400.9206(c)(iv) (requiring a
foster home applicant to provide “[a] statement regarding any past
and/or current mental health treatment or counseling by any member of
the household”).
5
MCL 710.23f(5)(c).
6
MCL 28.425b(1)(d).
cxviii 505 MICHIGAN REPORTS

evaluated.”7 But today this Court has barred the

Michigan Board of Law Examiners (BLE) from inquir-
ing specifically into the current state of an applicant’s
mental health. In so doing, this Court has turned the
purpose of the BLE on its head. By eliminating perti-
nent questions that delve into the current state of an
applicant’s mental health, it has substantially im-
paired the ability of the BLE to accomplish its primary
goal of protecting the public. Instead of being the
gatekeeper that protects the public from those unfit to
practice law with regard to the mental health of
aspiring lawyers, the BLE has now been instructed by
this Court to prioritize the needs of the applicant over
the need to protect the public. I dissent from the
majority’s unjustified and misguided decision to bar
the BLE from inquiring into the current state of an
applicant’s mental health.8 I would leave the current
bar application as it is.
Pursuant to MCL 600.934, candidates who wish to
practice law in Michigan must prove “to the satisfac-
tion of the board of law examiners that he or she is a
person of good moral character . . . and [possesses the]
fitness and ability to enable him or her to practice law
in the courts of record of this state . . . .”9 To comply
with this dictate, the BLE establishes the policies and
procedures for admission to the State Bar of Michigan
(SBM). In addition to requiring passage of the Michi-
gan Bar Examination, the SBM investigates on behalf

7
Krill, Johnson, & Albert, The Prevalence of Substance Use and
Other Mental Health Concerns Among American Attorneys, 10 J Addic-
tion Med 46, 46 (January/February 2016).
8
The Court has barred the BLE from inquiring into the mental health
of applicants by instructing the BLE to strike Questions 54a and 54b
from the application for admission to the Michigan Bar.
9
MCL 600.934(1) (emphasis added).
 SPECIAL ADMINISTRATIVE INQUIRY cxix

of the BLE the applicant’s background through its

“character and fitness” process. The BLE has recently
added language to the application for admission to the
Michigan Bar, explaining that the BLE “must assess
whether an applicant manifests any mental health or
substance abuse issue which impairs or could impair
an applicant’s ability to meet the essential eligibility
requirements to practice law.” Accordingly, applicants
are asked the following questions:
Question 54a:
Have you ever had, been treated or counseled for, or
refused treatment or counseling for, a mental, emotional,
or nervous condition which permanently, presently or
chronically impairs or distorts your judgment, behavior,
capacity to recognize reality or ability to cope with ordi-
nary demands of life? If yes, provide the names and
addresses of all involved agencies, institutions, physicians
or psychologists or other health care providers and de-
scribe the underlying circumstances or the diagnosis,
treatment or hospitalization.
Question 54b:
Have you ever had, been treated or counseled for, or
refused treatment or counseling for, a mental, emotional,
or nervous condition which permanently, presently or
chronically impairs your ability to exercise such responsi-
bilities as being candid and truthful, handling funds,
meeting deadlines, or otherwise representing the interest
of others?

The BLE prefaces these questions by expressly not-

ing that it “supports applicants seeking mental health
and/or substance abuse treatment, and views effective
treatment by a licensed professional as enhancing an
applicant’s ability to meet the essential eligibility
requirements.” The BLE also limits the breadth of the
inquiries by explaining that an applicant “do[es] not
need to provide information that is reasonably charac-
cxx 505 MICHIGAN REPORTS

terized as situational counseling. Examples of situ-

ational counseling include stress counseling, grief
counseling, and domestic relations counseling.”10
In my view, the BLE is mandated by its duty to
protect the public to ask Questions 54a and 54b.
Attorneys, along with surgeons and pilots, are typi-
cally identified as being susceptible to exceptionally
high levels of job-related stress.11 As one might expect,
airline pilots and surgeons practicing in our finest
hospitals are required to disclose current mental
health concerns as a requisite to practicing their occu-
pations. Aspiring attorneys should not be exempt from
this inquiry.12
In 2016, the Journal of Addiction Medicine pub-
lished a study titled “The Prevalence of Substance Use
and Other Mental Health Concerns Among American
Attorneys.”13 The study “reveals a concerning amount

10
This guidance is very useful to highlight that the application
inquires only about conditions that impair or distort judgment, as these
would clearly affect a person’s ability to practice law.
11
Business News Daily, The Top 10 Most and Least Stressful Jobs,
<https://www.businessnewsdaily.com/1875-stressful-careers.html> (ac-
cessed January 29, 2020) [https://perma.cc/Y2T5-GQKQ].
12
In 1995, the Journal of Law and Health published an article
highlighting a “highly alarming fact”:
[A] significant percentage of practicing lawyers are experiencing
a variety of significant psychological distress symptoms well
beyond that expected of the general population. These symptoms
are directly traceable to law study and practice. They are not
exhibited when the lawyers enter law school, but emerge shortly
thereafter and remain, without significant abatement, well after
graduation from law school.
Beck, Sales & Benjamin, Lawyer Distress: Alcohol-Related Problems
and Other Psychological Concerns Among a Sample of Practicing
Lawyers, 10 J L & Health 1, 2 (1995–1996).
13
Krill, 10 J Addiction Med 46.
 SPECIAL ADMINISTRATIVE INQUIRY cxxi

of behavioral health problems among attorneys in the

United States.”14 The study notes that “[l]evels of
depression, anxiety, and stress among attorneys were
significant, with 28%, 19%, and 23% experiencing
symptoms of depression, anxiety, and stress, respec-
tively.”15 In addition, the study also concluded that
younger lawyers are the segment of the profession
most at risk of substance abuse and mental health
problems.16 The concern over behavioral health prob-
lems does not solely relate to practicing attorneys. In
fact, “[s]tress among law students is 96%, compared to
70% in med[ical] students and 43% in graduate stu-
dents. Entering law school, law students have a psy-
chological profile similar to that of the general public.
After law school, 20-40% have a psychological dysfunc-
tion.”17 Clearly, there is significant research to support
the basic premise that “stress is . . . a risk factor for
law students and lawyers in regard to both physical
and psychological illness.”18 At least one member of the
majority even acknowledges these “troubling statis-
tics,” only to dismiss mental health concerns by noting

14
Id. at 51.
15
Id.
16
Id.
17
Dave Nee Foundation, Lawyers & Depression <http://www.
daveneefoundation.org/scholarship/lawyers-and-depression/> (accessed
January 29, 2020) [https://perma.cc/H2CE-CGU5] (formatting altered).
18
Lawyer Distress, 10 J L & Health at 10. “Stress has a major impact
upon the nervous system, its structures and functions, since stress is
closely associated with its effectors, and profound connections between
stress and neurodegenerative diseases as well as mental disorders
exist.” Esch et al, The Role of Stress in Neurodegenerative Diseases and
Mental Disorders, 23 Neuroendocrinology Letters 199, 206 (July 2002),
available at (accessed January 29, 2020). “Stress plays a significant role
in susceptibility, progress, and outcome of neurodegenerative
diseases/mental disorders. It may cause or exacerbate such diseases
cxxii 505 MICHIGAN REPORTS

“that less than 2.5% of bar applicants answered Ques-

tions 54a or 54b in the affirmative, with less than 11%
of those applications requiring further ‘extensive in-
vestigation’ by the Board.”19 Respectfully, the fact that
there are applications worthy of in-depth review, how-
ever few, reveals that the BLE is properly able to
identify a segment of the bar-applicant population
whose mental health concerns require extensive inves-
tigation. To strip the BLE of its ability to investigate
these serious cases leaves the public unnecessarily
vulnerable.
Nonetheless, the Court has decided to eliminate
Questions 54a and 54b apparently based on two pri-
mary notions. The first is noted in Justice BERNSTEIN’s
concurrence to the Court’s Special Administrative In-
quiry order specifically asking for public comment
regarding whether “inquiring into an applicant’s men-
tal health status [is] an effective way of assessing an
applicant’s ‘fitness and ability’ to practice law[.]” He
then cites research materials to provide a greater
context for this question. The problem is, however, that
none of the research he cites is relevant to answering
Questions 54a and 54b. Read carefully, the research
speaks in terms of “a history of mental health diagno-
sis,” a “history of previous psychiatric treatment,”
“lawyers who have had psychiatric treatment,” “hav-
ing undergone treatment,” “mental health histories,”
and “mental health treatment histories.” But Ques-
tions 54a and 54b target only “mental, emotional, or
nervous condition[s]” that “permanently, presently or
chronically” exist. Questions 54a and 54b only solicit
depending on the type of stressor involved (e.g., physical, chemical,
biological, mental, psychosocial etc.) and/or duration of its influence on
an organism.” Id.
19
Ante at cxiii (MCCORMACK, C.J., concurring).
 SPECIAL ADMINISTRATIVE INQUIRY cxxiii

mental health histories or diagnoses if the conditions

are currently present. In sum, Questions 54a and 54b
do not implicate the concerns raised by the Depart-
ment of Justice (DOJ) in its investigation of Louisi-
ana’s attorney licensure system pursuant to the Ameri-
cans with Disabilities Act, 42 USC 12101 et seq., in
regard to mental health questions on bar examination
applications.20 The DOJ’s concerns were related to “an
applicant’s ‘status’ as a person with a mental health
disability” and, to a lesser extent, questions that specu-
late about the “future, hypothetical” effect of the men-
tal condition rather than a current ability to practice
law.21 Unlike the questions posed by the Louisiana
Attorney Licensure System, Questions 54a and 54b
inquire about neither “status” nor the hypothetical
effect of the condition; rather, the questions are limited
to addressing a current ability to practice law.
Further, following the DOJ investigation, the Na-
tional Conference of Bar Examiners (NCBE) revised its
questions to reflect that mental health inquiries must
be conduct-based, rather than diagnosis-based. These
revised questions satisfied the concerns raised by the
DOJ. The new NCBE questions are as follows:
25. Within the past five years, have you exhibited any
conduct or behavior that could call into question your
ability to practice law in a competent, ethical, and profes-
sional manner?
26. A. Do you currently have any condition or impair-
ment (including, but not limited to, substance abuse, or a

20
The United States’ Investigation of the Louisiana Attorney Licen-
sure System Pursuant to the Americans With Disabilities Act, DJ No.
204-32M-60, 204-32-88, 204-32-89 (DOJ Investigation), available at
<https://www.ada.gov/louisiana-bar-lof.pdf> (accessed January 30, 2020)
[https://perma.cc/HAA5-82AR].
21
Id. at 20, 22.
cxxiv 505 MICHIGAN REPORTS

mental, emotional, or nervous disorder or condition) that

in any way affects your ability to practice law in a
competent, ethical, and professional manner?
B. If your answer to Question 26(A) is yes, are the
limitations caused by your condition or impairment re-
duced or ameliorated because you receive ongoing treat-
ment or because you participate in a monitoring or sup-
port program?[22]

Questions 54a and 54b are entirely consistent with

the NCBE’s model questions. And while the Court does
adopt NCBE Question 25, that question is entirely
lacking in context if not considered along with Ques-
tion 26. Standing alone, a question that asks “have you
exhibited any conduct or behavior that could call into
question your ability to practice law in a competent,
ethical, and professional manner” is so broad and
vague that it cannot be reasonably answered. Further,
this question leaves it in the hands of the applicant and
the applicant alone to decide whether mental health
concerns should be disclosed to the BLE. Such an
inquiry strips the BLE of its gatekeeping function.
The second apparent rationale for eliminating Ques-
tions 54a and 54b is that mental health questions may
actually deter prospective applicants from seeking
rehabilitative counseling and treatment, or detract
from the effectiveness of such professional help. Per-
haps this is true. But those who willfully decline
needed mental health treatment out of fear that dis-

22
These questions appear as Questions 29 and 30 on the current
application. The phrase “If your answer to Question 26(A) is yes” has been
omitted and a note regarding the word “currently” has been added, but
the language is otherwise unchanged. See National Conference of Bar
Examiners, Character and Fitness Investigations, Character & Fitness
Resources—Sample Application, available at <http://www.ncbex.org/
dmsdocument/134> (accessed January 30, 2020) [https://perma.cc/7E27-
LJNV].
 SPECIAL ADMINISTRATIVE INQUIRY cxxv

closing such treatment may impede their ability to

obtain a law license may very well lack the requisite
good character needed to be a member of the legal
profession. Professions exist “primarily for the ad-
vancement of the profession[,] . . . not for the advance-
ment of the individual members.”23
The professional serves the public interest and the best
interest of the patient or client. . . . [T]he professional is
not merely in a money-making trade. The professional
serves others, and thereby emphasizes quality. Gaining a
livelihood is incidental. A professional offers a certain
service and confers the same diligence and quality of
service whether paid or not.[24]

If an applicant chooses to not seek needed treatment for

a mental condition solely to avoid disclosure of that
condition, the applicant has chosen to place his or her
own interest in obtaining a law license over the greater
good of the profession. This is precisely the reason that
Questions 54a and 54b both ask whether an applicant
has “refused treatment or counseling,” and the reason
that the BLE expressly states in the application that it
“supports applicants seeking mental health and/or sub-
stance abuse treatment, and views effective treatment
by a licensed professional as enhancing an applicant’s
ability to meet the essential eligibility requirements.”
Stated differently, if you have the good judgment to seek
treatment when you need it and the good character to
disclose your treatment to the BLE, you are highly
likely to receive your law license upon a showing that
this condition is manageable and under control. By
contrast, if an applicant places his or her professional
desires and personal concerns above the greater good of

23
Rotunda and Dzienkowski, Legal Ethics: The Lawyer’s Deskbook on
Professional Responsibility (2018), § 1.6(d), p 41.
24
Id.
cxxvi 505 MICHIGAN REPORTS

the legal profession and public, that applicant lacks the

good character to enter the profession. To even suggest
that the BLE should not ask mental health questions
merely because such questions may deter treatment by
would-be applicants is severely misguided.
In sum, I see no valid reason to preclude the BLE
from asking Questions 54a and 54b on the current bar
application. Every aspiring lawyer should truthfully
and completely answer these questions before being
granted a law license. The Court’s action today mate-
rially impedes the BLE from accomplishing its duty to
protect the public. Accordingly, I dissent.
MARKMAN, J., joins the statement of ZAHRA, J.
 ADMINISTRATIVE ORDER
No. 2020-3
ORDER EXTENDING DEADLINE FOR
COMMENCEMENT OF ACTIONS

Entered March 23, 2020, effective immediately (File No. 2020-08);

language as amended by order entered May 1, 2020; rescinded effective
June 20, 2020, by Administrative Order No. 2020-18, entered June 12,
2020—REPORTER.

In light of the continuing COVID-19 pandemic and to

ensure continued access to courts, the Court orders that:
For all deadlines applicable to the commencement of
all civil and probate case-types, including but not lim-
ited to the deadline for the initial filing of a pleading
under MCR 2.110 or a motion raising a defense or an
objection to an initial pleading under MCR 2.116, and
any statutory prerequisites to the filing of such a plead-
ing or motion, any day that falls during the state of
emergency declared by the Governor related to
COVID-19 is not included for purposes of MCR 1.108(1).
This order is intended to extend all deadlines per-
taining to case initiation and the filing of initial re-
sponsive pleadings in civil and probate matters during
the state of emergency declared by the Governor re-
lated to COVID-19. Nothing in this order precludes a
court from ordering an expedited response to a com-
plaint or motion in order to hear and resolve an

cxxvii
cxxviii 505 MICHIGAN REPORTS

emergency matter requiring immediate attention. We

continue to encourage courts to conduct hearings re-
motely using two-way interactive video technology or
other remote participation tools whenever possible.
This order in no way prohibits or restricts a litigant
from commencing a proceeding whenever the litigant
chooses, nor does it suspend or toll any time period
that must elapse before the commencement of an
action or proceeding. Courts must have a system in
place to allow filings without face-to-face contact to
ensure that routine matters, such as filing of estates in
probate court and appointment of a personal represen-
tative in a decedent’s estate, may occur without unnec-
essary delay and be disposed via electronic or other
means.
 ADMINISTRATIVE ORDER
No. 2020-4
ORDER SUSPENDING FILING DEADLINES IN THE MICHIGAN
SUPREME COURT AND COURT OF APPEALS

Entered March 26, 2020, effective immediately (File No. 2020-08);

rescinded effective June 8, 2020, by Administrative Order No. 2020-16,
entered June 3, 2020—REPORTER.

The deadlines for all filings, jurisdictional and non-

jurisdictional, in the Michigan Supreme Court and
Court of Appeals are suspended as of March 24, 2020,
the effective date of Executive Order 2020-21, and will
be tolled until the expiration of EO 2020-21 or a
subsequent EO that extends the period in which citi-
zens are required to suspend activities that are not
necessary to sustain or protect life. This AO gives filers
the same number of days to submit their filings after
the EO expires as they had before the suspension went
into effect. For example, if the deadline for filing an
application for leave to appeal with the Michigan
Supreme Court is March 26, 2020, the filer would have
three days after the EO expires to timely submit the
application with the Court.

cxxix
 ADMINISTRATIVE ORDER
No. 2020-5
ORDER EXTENDING ADMINISTRATIVE ORDER NOS. 2020-1
AND 2020-2 UNTIL AT LEAST APRIL 14, 2020

Entered March 27, 2020, effective immediately (File No. 2020-08)—

REPORTER.

In light of Governor Whitmer’s Executive Order No.

2020-21 that temporarily suspends activities that are
not necessary to sustain or protect life until at least
April 13, 2020, at 11:59 pm, the Court directs that the
expiration date of April 3, 2020, in Administrative Or-
der Nos. 2020-1 and 2020-2 is extended until April 14,
2020, or as provided by further order of the Court.

cxxx
 ADMINISTRATIVE ORDER
No. 2020-6
ORDER EXPANDING AUTHORITY FOR JUDICIAL OFFICERS TO
CONDUCT PROCEEDINGS REMOTELY

Entered April 7, 2020, effective immediately (File No. 2020-08)—

REPORTER.

In response to the extraordinary and unprecedented

events surrounding the COVID-19 pandemic in Michi-
gan, the Court has adopted a number of administrative
orders authorizing courts to implement emergency
measures to mitigate the transmission of the virus and
provide the greatest protection possible to those who
work and have business in our courts. During the past
few weeks, Michigan’s judges, court administrators,
court staff, court clerks, attorneys, law enforcement
officers, probation staff and many others who support
our courts have continued to serve the public with
courage and conviction and have shown they are up to
the challenge of both limiting foot traffic in our courts
while creatively adopting new business methods and
implementing new technologies to conduct the court’s
business and ensure that our courts remain accessible
to the public to the greatest extent possible during this
crisis.
Although our highest priority during this crisis is for
courts to continue to be vigilant and protect against

cxxxi
cxxxii 505 MICHIGAN REPORTS

further spread of the coronavirus, we must also con-

tinue to ensure that our courts operate as efficiently and
effectively as possible under the circumstances, con-
tinue to ensure timely hearing and disposition of essen-
tial matters, and make our best efforts to provide timely
justice in all other matters. The purpose of the order is
to empower our courts and judges to meet this challenge
by allowing them to use innovative ways to conduct
court business remotely, including best practices as
identified by the State Court Administrative Office.
On order of the Court, pursuant to 1963 Const, Art
VI, Sec 4, which provides for the Supreme Court’s
general superintending control over all state courts,
the Court authorizes judicial officers to conduct pro-
ceedings remotely (whether physically present in the
courtroom or elsewhere) using two-way interactive
videoconferencing technology or other remote partici-
pation tools under the following conditions:
• any such procedures must be consistent with a
party’s Constitutional rights;
• the procedure must enable confidential communi-
cation between a party and the party’s counsel;
• access to the proceeding must be provided to the
public either during the proceeding or immedi-
ately after via access to a video recording of the
proceeding, unless the proceeding is closed or
access would otherwise be limited by statute or
rule;
• the procedure must enable the person conducting
or administering the procedure to create a record-
ing sufficient to enable a transcript to be produced
subsequent to the activity.
While this order is in effect, and consistent with its
provisions, all judges in Michigan are required to make
a good faith effort to conduct proceedings remotely
 ADM ORDER NO. 2020-6 cxxxiii

whenever possible. Although adjournments are per-

mitted when necessary, courts are directed to imple-
ment measures to ensure all matters may proceed as
expeditiously as possible under the circumstances,
given the particular public health conditions in each
locality and the technology resources and staffing
situations in place at each court.1 The Michigan Judi-
cial Institute will continue to provide instruction and
other training materials on procedures to conduct
remote hearings. Courts should also consult with their
regional administrators in working toward this goal.
A judge who wishes to participate from a location
other than the judge’s courtroom shall do so only with
the written permission of the court’s chief judge (email
is sufficient). The chief judge shall grant such permis-
sion whenever the circumstances warrant, unless the
court does not have and is not able to obtain any
equipment or licenses necessary for the court to operate
remotely.
Judges who conduct remote proceedings must pro-
vide notice of the time and procedure for participating
in the remote hearing, and verify that all participants
are able to proceed in this manner. Judges who operate
under this method must comply with any standards
promulgated by the State Court Administrative Office
for purposes of this order. Courts may only operate
remotely as long as they can do so safely and consistent
with the Governor’s recent executive orders relating to
the COVID-19 pandemic.
This order is effective during the period of the State of
Emergency declared by Governor Whitmer under Ex-
ecutive Order 2020-33 or as further ordered by the
Court.

1
To the extent Administrative Order No. 2020-2 may be interpreted to
require the adjournment of some matters, this order replaces that
directive.
 ADMINISTRATIVE ORDER
No. 2020-7
EXTENSION OF ADMINISTRATIVE ORDER
NOS. 2020-1, 2020-2, AND 2020-6

Entered April 10, 2020, effective immediately (File No. 2020-08)—

Reporter.

On order of the Court, in light of Executive Order

2020-33, Executive Order 2020-42 and Senate Concur-
rent Resolution 24, the expiration dates in Administra-
tive Order Nos. 2020-1, 2020-2, and 2020-6 are ex-
tended through April 30, 2020, or until further order of
the Court.

cxxxiv
 ADMINISTRATIVE ORDER
No. 2020-8
ADDITIONAL VERIFICATION REQUIRED FOR
LANDLORD TENANT CASES

Entered April 16, 2020, effective immediately (File No. 2020-08)—

REPORTER.

The federal Coronavirus Aid, Relief, and Economic

Security Act (“CARES Act”), Public Law No. 116-136,
imposes a moratorium, until July 25, 2020, on the filing
of summary proceeding actions to recover possession of
premises for nonpayment of rent that meet certain
parameters.
Therefore, on order of the Court, pursuant to 1963
Const, Art VI, Sec 4, which provides for the Supreme
Court’s general superintending control over all state
courts, a complainant who files a summary proceeding
action before July 25, 2020 under MCR 4.201 for pos-
session of premises for nonpayment of rent also must
submit verification indicating whether the property is
exempt from the moratorium provided for under the
CARES Act. The verification shall be made on a SCAO-
approved form.
This order is effective until July 25, 2020, or as
further ordered by the Court.

cxxxv
 ADMINISTRATIVE ORDER
No. 2020-9
TEMPORARY AMENDMENTS AND EXTENSIONS RELATED TO
CONTINUING WORK IN COURTS

Entered April 17, 2020, effective immediately (File No. 2020-08)—

REPORTER.

On order of the Court, except as otherwise provided

by this order, and consistent with Administrative Order
No. 2020-6, courts (including judicial officers and staff),
attorneys, parties, and other participants in the judicial
system are expected to proceed with activities related to
all pending legal proceedings to the greatest extent
possible.
In pursuit of that goal, the following rules are tem-
porarily amended to enable the work of the courts to
continue while also complying with the restrictions on
leaving home and accessing private facilities (such as
office space) and public facilities including courthouses,
post offices, and other common services pursuant to EO
2020-42 and 2020-36, and other executive orders that
may be issued, during the state of emergency.
Rules Temporarily Amended
During State of Emergency
During the state of emergency established by Gov-
ernor Whitmer under Executive Order 2020-33, the
following rules are temporarily amended:
cxxxvi
 ADM ORDER NO. 2020-9 cxxxvii

MCR 2.002: Courts must enable a litigant who seeks

a fee waiver to do so by an entirely electronic process.
MCR 2.107(C): Because people may not be physi-
cally present to receive mail at a particular location, all
service of process under this rule must be performed
using electronic means (e-Filing where available,
email, or fax, where available) to the greatest extent
possible. Email transmission does not require agree-
ment by the other party(s) during the effective period
of this order, but should otherwise comply as much as
possible with the provisions of MCR 2.107(C)(4).
MCR 2.305, 2.506, 2.621(C), 9.112(D), 9.115(I)(1),
9.212: Subpoenas issued under these rules may require
a party or witness to appear by telephone, by two-way
interactive video technology, or by other remote par-
ticipation tools.
MCR 3.904: Courts may use two-way videoconfer-
encing technology or other remote participation tools
where the court orders a more restrictive placement or
more restrictive treatment.

Extension of Deadlines During

Stay Home Stay Safe Order
Consistent with AO No. 2020-3 (excluding days in the
State of Emergency in computing the deadline for case
initiation filings) and AO No. 2020-4 (extending the
filing deadlines in the Michigan Supreme Court and
Court of Appeals for the period of the Executive Order
2020-21 and 2020-42), the following deadlines are like-
wise suspended as of March 24, 2020, the effective date
of Executive Order 2020-21, and will be extended until
the expiration of Executive Order 2020-42 or a subse-
quent Executive Order that extends the period in which
citizens are required to suspend activities that are not
necessary to sustain or protect life:
cxxxviii 505 MICHIGAN REPORTS

MCR 2.102(D): Expiration of summons.

MCR 2.614: A stay of proceedings to enforce judge-
ment.
MCR 3.216(G)(3) and MCR 2.411(F)(4): Two-year
period in which to complete advanced mediation train-
ing.
Postjudgment motions filed in the trial court as well
as circuit court appeals and appeals of agency deter-
minations.
This order is effective as provided herein or as
otherwise provided by subsequent order of the Court.
 ADMINISTRATIVE ORDER
No. 2020-10
DELAY OF JURY TRIALS

Entered April 23, 2020, effective immediately (File No. 2020-08)—

REPORTER.

On order of the Court, pursuant to 1963 Const, Art

VI, § 4, which provides for the Supreme Court’s general
superintending control over all state courts, all jury
trials are delayed for a period of 60 days from the date
of this administrative order (until June 22, 2020), or as
otherwise provided for by local order, whichever date is
later.
Further, the State Court Administrative Office is
authorized to initiate pilot projects regarding practices
related to how to conduct remote jury trials. The pilot
courts will test and evaluate innovative jury proce-
dures to allow for appropriate social distancing while
also protecting the parties’ Constitutional and statu-
tory rights. After the pilot projects are complete, the
State Court Administrative Office shall provide recom-
mendations to assist all courts in providing jury trials
that promote public health and safety as well as
protect people’s rights.
This order shall remain in effect through June 22,
2020, or until further order of the Court.

cxxxix
 ADMINISTRATIVE ORDER
No. 2020-11
EXTENSION OF PERSONAL PROTECTION ORDERS THAT
EXPIRE DURING THE STATE OF EMERGENCY

Entered April 27, 2020, effective immediately (File No. 2020-08)—

REPORTER.

During the continuing COVID-19 pandemic, the

Michigan Supreme Court has directed courts to work to
protect public health and mitigate the transmission of
the coronavirus while also ensuring continued access to
the judicial system for those who need it. Although
electronic access to courts has increased dramatically
over the last several weeks, most courts are currently
operating with limited onsite staff. As a result, many
interactions that would occur by face-to-face encounter
have become impossible, including those that are geared
toward protecting vulnerable individuals.
For that reason, on order of the Court, pursuant to
1963 Const, Art VI, § 4, which provides for the Su-
preme Court’s general superintending control over all
state courts, any personal protection order that expires
during the period from the date of entry of this admin-
istrative order through June 1, 2020, is automatically
extended to July 21, 2020. A respondent who objects to
the extension may file a motion to modify or terminate
the personal protection order and request a hearing

cxl
 ADM ORDER NO. 2020-11 cxli

under MCR 3.707. For a hearing under this order, the

court shall schedule the hearing and notify the parties
at least 7 days before the date of the hearing by the
means most likely to provide actual notice. The exten-
sion set forth in this order does not limit in any way a
judge’s authority and ability to hold a hearing on
respondent’s motion and determine whether the exten-
sion should continue or the personal protection order
should be modified or terminated.
Nothing in this order prohibits a petitioner from
consenting to termination of the personal protection
order.
 ADMINISTRATIVE ORDER
No. 2020-12
EXTENSION OF ADMINISTRATIVE ORDER
NOS. 2020-1, 2020-2, 2020-6, AND 2020-9

Entered April 27, 2020, effective immediately (File No. 2020-08)—

REPORTER.

On order of the Court, pursuant to 1963 Const, Art

VI, § 4, which provides for the Supreme Court’s gen-
eral superintending control over all state courts, the
expiration dates in Administrative Order Nos. 2020-1,
2020-2, 2020-6, and 2020-9 are extended until further
order of the Court.

cxlii
 ADMINISTRATIVE ORDER
No. 2020-13
ORDER AUTHORIZING COURTS TO
COLLECT CONTACT INFORMATION

Entered April 29, 2020, effective immediately (File No. 2020-08);

language as amended by Administrative Order No. 2020-19, entered
June 26, 2020—REPORTER.

On order of the Court, in light of Administrative

Order No. 2020-2, Administrative Order No. 2020-6,
and Administrative Order No. 2020-9, and under 1963
Const, Art VI, Sec 4, which provides for the Supreme
Court’s general superintending control over all state
courts, a court may collect contact information, includ-
ing mobile phone number(s) and email address(es),
from any party or witness to a case to facilitate
scheduling of and participation in remote hearings or
facilitate case processing. A court may collect the
contact information using a SCAO-approved form. The
form used under this administrative order to collect
the information shall be confidential. An email address
for an attorney must be the same address as the one on
file with the State Bar of Michigan.
This order is effective until further order of the
Court.

cxliii
AMENDED ADMINISTRATIVE ORDER
No. 2020-3
ORDER EXTENDING DEADLINE FOR
COMMENCEMENT OF ACTIONS

Entered May 1, 2020 effective immediately (File No. 2020-08)—

REPORTER.

On order of the Court, the following amendment of

Administrative Order No. 2020-3 is adopted, effective
immediately.

[Additions to the text are indicated in underlining.]

In light of the continuing COVID-19 pandemic and

to ensure continued access to courts, the Court orders
that:
For all deadlines applicable to the commencement of
all civil and probate case-types, including but not lim-
ited to the deadline for the initial filing of a pleading
under MCR 2.110 or a motion raising a defense or an
objection to an initial pleading under MCR 2.116, and
any statutory prerequisites to the filing of such a plead-
ing or motion, any day that falls during the state of
emergency declared by the Governor related to
COVID-19 is not included for purposes of MCR 1.108(1).
This order is intended to extend all deadlines per-
taining to case initiation and the filing of initial re-
cxliv
 AMENDED ADM ORDER NO. 2020-3 cxlv

sponsive pleadings in civil and probate matters during

the state of emergency declared by the Governor re-
lated to COVID-19. Nothing in this order precludes a
court from ordering an expedited response to a com-
plaint or motion in order to hear and resolve an
emergency matter requiring immediate attention. We
continue to encourage courts to conduct hearings re-
motely using two-way interactive video technology or
other remote participation tools whenever possible.
This order in no way prohibits or restricts a litigant
from commencing a proceeding whenever the litigant
chooses, nor does it suspend or toll any time period
that must elapse before the commencement of an
action or proceeding. Courts must have a system in
place to allow filings without face-to-face contact to
ensure that routine matters, such as filing of estates in
probate court and appointment of a personal represen-
tative in a decedent’s estate, may occur without unnec-
essary delay and be disposed via electronic or other
means.
Staff comment: The amendment of Administrative Order No. 2020-3
is intended to make the order more consistent with Executive Order
2020-58.

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

In addition, adoption of a new rule or amendment in no way reflects a
substantive determination by this Court.
 ADMINISTRATIVE ORDER
No. 2020-14
CONTINUED STATUS QUO COURT OPERATIONS AND PHASED
RETURN TO FULL COURT OPERATIONS

Entered May 6, 2020 effective immediately (File No. 2020-08)—

REPORTER.

The Michigan Supreme Court has made clear that

during the health crisis relating to the coronavirus
pandemic, courts must continue to conduct essential
functions, and are expected to use their best efforts to
provide timely justice in all other matters. To achieve
this goal, the Court has authorized judicial officers to
conduct proceedings remotely to the greatest extent
possible, and several administrative orders have been
adopted to help courts and litigants navigate more
efficiently and effectively.
Keeping the public and court staff safe and reducing
the risk of spreading the virus will remain a critical
focus of our efforts. However, nearly two months after
the first case of coronavirus was identified in Michigan,
we don’t know how long this effort will last. Moreover,
the spread of the virus presents challenges that are
different in each community as case counts rise in
some areas and fall in others.
There is some consensus—nationally and locally—
about the best way to approach returning to more
cxlvi
 ADM ORDER NO. 2020-14 cxlvii

normal work practices in a way that ensures access to

necessary services while also protecting against the
risk of further infection. This approach involves meet-
ing various benchmarks based on local public health
data as public facilities gradually phase in operations.
Courts should consider expanding in person operations
with diligent regard for health and safety practices as
determined in consultation with local health officials
and considering the capacity of the community’s health
system, and as approved by SCAO.
Therefore, on order of the Court, pursuant to 1963
Const, Art VI, Sec. 4, which provides for the Supreme
Court’s general superintending control over all state
courts, courts must adhere to the phased return to
operations as determined by policy guidelines estab-
lished by the State Court Administrative Office. Such
policies will include but may not be limited to:
• Continued use and expansion of remote hearings as
practicable and increase of the court’s capacity to
conduct business online, including increased remote
work by employees.
• Continued limited access to courtrooms and other
spaces to no more than 10 persons, including staff.
• Imposition of social distancing practices of at least 6
feet for both employees and visitors.
• Limited in-person court activity to essential functions
that cannot be conducted remotely.
• In accordance with CDC guidelines,
○ Adoption of policies that ensure appropriate
cleaning and sanitation.
○ Adoption of policies that appropriately protect
vulnerable individuals.
○ Adoption of policies to safely screen employees
and the public for potential cases of illness.
• Courts must maintain their current level of operations
until SCAO approves a court’s plan to expand in-court
cxlviii 505 MICHIGAN REPORTS

proceedings. Courts in each circuit may work together

to submit to SCAO at each gating level a single plan
wherever possible consistent with the SCAO guidelines
for returning to full capacity. Conditions may also
require a court to move to a previous access level,
depending on local conditions.

These conditions remain in effect until further order of

the Court.
 ADMINISTRATIVE ORDER
No. 2020-15
REVISED FORMAT FOR JULY 2020
MICHIGAN BAR EXAMINATION

Entered May 18, 2020 effective immediately (File No. 2020-08)—

REPORTER.

In recognition of the continuing COVID-19 pan-

demic, in light of various current and projected
pandemic-related restrictions, and pursuant to the
Court’s constitutional and statutory authority to su-
pervise and regulate the practice of law, 1963 Const,
Art VI, Sec 5, and MCL 600.904, and in consultation
with the Board of Law Examiners (Board), the Court
orders that in lieu of the two-day exam previously
scheduled for July 28-29, 2020, a one-day exam will be
administered on July 28, 2020. The exam will be con-
ducted online, and will consist solely of the essay
portion of the traditional exam.
The Board will inform applicants of the specific
instructions for the online exam no later than July 1,
2020. Any applicant receiving accommodations under
the Americans with Disabilities Act that would pre-
clude remote testing will be allowed to test in person at
a location to be determined, assuming that federal and
state restrictions permit such examination. Any appli-
cant that did not register to use a laptop for the exam
cxlix
cl 505 MICHIGAN REPORTS

must contact the Board if the applicant is unable to

take the exam on a computer.
Applicants who complete the test in person will be
required to adhere to federal and state health recom-
mendations and requirements. Such requirements
will, at a minimum, likely require the applicant to
answer health-related screening questions, use per-
sonal protective equipment, and comply with stag-
gered test times to ensure social distancing mandates.
For applicants who do not wish to test in July 2020,
applications to sit for the July 2020 bar examination
will automatically be transferred to the next available
2021 bar exam. In addition, applicants who wish to
transfer their application to the next available exam
should notify the Board no later than July 1, 2020, by
e-mail at [email protected]. Transfer fees will
not be charged. Applicants who wish to withdraw from
the process and notify the Board of that withdrawal no
later than July 1, 2020, by e-mail, will have their exam
fees refunded by the Board and their character and
fitness fees refunded by the State Bar of Michigan.
Applicants have the affirmative obligation to fre-
quently check the Board’s website, where updates,
instructions, and other vital information will be pro-
vided.
 ADMINISTRATIVE ORDER
No. 2020-16
ORDER RESUMING FILING DEADLINES IN
THE MICHIGAN SUPREME COURT AND COURT OF APPEALS

Entered June 3, 2020 effective June 8, 2020 (File No. 2020-08)—

REPORTER.

Effective Monday, June 8, 2020, Administrative Or-

der No. 2020-4 that tolled the filing deadlines in the
Michigan Supreme Court and Court of Appeals is
rescinded, and the periods for all filings, jurisdictional
and non-jurisdictional, in those Courts shall resume.
For time periods that started before AO No. 2020-4
took effect, the filers shall have the same number of
days to submit their filings on June 8, 2020, as they
had when the tolling went into effect. For filings with
time periods that did not begin to run because of the
tolling period, the filers shall have the full periods for
filing beginning on June 8, 2020.

cli
 ADMINISTRATIVE ORDER
No. 2020-17
PRIORITY TREATMENT AND NEW PROCEDURE FOR
LANDLORD/TENANT CASES

Entered June 9, 2020 effective immediately (File No. 2020-08)—

REPORTER.

Since the early days of the pandemic, state and

national authorities have imposed restrictions on the
filing of many landlord/tenant cases. As those restric-
tions are lifted and courts return to full capacity and
reopen facilities to the public, many will experience a
large influx of landlord/tenant case filings. Tradition-
ally, the way most courts processed these types of cases
relied heavily on many cases being called at the same
time in the same place, resulting in large congrega-
tions of individuals in enclosed spaces. That procedure
is inconsistent with the restrictions that will be in
place in many courts over the coming weeks and
months as a way to limit the possibility of transmission
of COVID-19. In addition, courts are required to com-
ply with a phased expansion of operations as provided
under Administrative Order No. 2020-14, which may
also impose limits on the number of individuals that
may congregate in public court spaces.
Therefore, the Court adopts this administrative or-
der under 1963 Const, Art VI, Sec 4, which provides for
clii
 ADM ORDER NO. 2020-17 cliii

the Supreme Court’s general superintending control

over all state courts, directing courts to process
landlord/tenant cases using a prioritization approach.
This approach will help limit the possibility of further
infection while ensuring that landlord/tenant cases are
able to be filed and adjudicated efficiently. All courts
having jurisdiction over landlord/tenant cases must
follow policy guidelines established by the State Court
Administrative Office. Courts should be mindful of the
limitations imposed by federal law (under the CARES
Act) as these cases are filed and processed, and follow
the guidance in Administrative Order No. 2020-8 in
determining the appropriate timing for beginning to
consider these cases.
For courts that are able to begin conducting proceed-
ings, the following provisions apply to landlord/tenant
actions.
(1) Each Trial Court with jurisdiction over cases filed
under the Summary Proceedings Act, MCL 600.5701,
et seq., may accept new filings and begin to schedule
hearings as follows:
a. In a manner that is consistent with the Return to
Full Capacity (RTFC) guidelines referenced in Admin-
istrative Order No. 2020-14,
b. In a manner that is consistent with each court’s
most recently-approved local administrative order re-
garding Return to Full Capacity.
(2) When a trial court resumes scheduling hearings
for recovery of possession of premises under MCL
600.5714 and MCL 600.5775, the following operational
priorities apply:
a. First priority: complaints alleging illegal activity
under MCL 600.5714(1)(b) and complaints alleging
cliv 505 MICHIGAN REPORTS

extensive and continuing physical injury to the prem-

ises under MCL 600.5714(1)(d).
b. Second priority: complaints alleging nonpayment
of rent for 120 days or more.
c. Third priority: complaints alleging nonpayment of
rent for 90 days or more.
d. Fourth priority: complaints alleging nonpayment
of rent for 60 days or more.
e. Fifth priority: complaints alleging nonpayment of
rent for 30 days or more.
f. Courts should proceed to a subsequent priority
when all cases in the higher priority have been sched-
uled for hearing.
g. Instead of setting many cases for one hearing time
as has traditionally been common, each case must be
scheduled for a particular date and time (whether held
in-person or remotely) to allow in-person proceedings
to be held safely.
h. A filer who filed a case before April 16, 2020 (the
date Administrative Order No. 2020-8 entered) must
update the factual allegations in the complaint and file
the verification form required by Administrative Order
No. 2020-8 before a hearing will be scheduled. The
court shall not require an additional filing fee.
(3) Trial Courts must schedule cases filed for an
alleged termination of tenancy (as opposed to cases for
nonpayment of rent) pursuant to MCL 600.5714 dur-
ing or after the fifth level of priority described above or
after the statutorily-required notice period has
elapsed, whichever comes later.
(4) Courts are authorized to proceed with these
actions by way of remote participation tools, and en-
couraged to do so to the greatest extent possible.
Administrative Order No. 2020-6 requires that the
 ADM ORDER NO. 2020-17 clv

court scheduling a remote hearing must “verify that all

participants are able to proceed in this manner.”
Therefore, the summons for each case filed under the
Summary Proceedings Act must provide the date and
time for remote participation in the scheduled hearing.
If a remote hearing is scheduled for the first proceed-
ing, the defendant received personal service pursuant
to MCR 2.105(A), and the defendant fails to appear, a
default may enter. If a remote hearing is scheduled for
the first proceeding and the defendant fails to appear
and has not been served under MCR 2.105(A), the
court may not enter a default but must reschedule the
hearing and mail notice for that rescheduled hearing
as an in-person proceeding. Under these conditions, a
notice of rescheduled hearing mailed by the court
within 24 hours is sufficient notice of the rescheduled
hearing, notwithstanding any other court rule. Other
parties or participants may proceed remotely.
(5) All local administrative orders requiring a writ-
ten answer pursuant to MCL 600.5735(4) are sus-
pended.1 Unless otherwise provided by this order, a
court must comply with MCR 4.201 with regard to
summary proceedings.
(6) At the initial hearing noticed by the summons,
the court must conduct a pretrial hearing consistent
with SCAO guidance. At the pretrial hearing the
parties must be verbally informed of all of the follow-
ing:

1
The local administrative orders include: 1st District Court (Monroe
County); 2a District Court (Lenawee County); 12th District Court
(Jackson County); 18th District Court (City of Westland); 81st District
Court (Alcona, Arenac, Iosco, and Oscoda Counties); 82nd District
(Ogemaw County); and 95b District Court (Dickinson and Iron Coun-
ties).
clvi 505 MICHIGAN REPORTS

a. Defendant has the right to counsel. MCR

4.201(F)(2).
b. The Michigan Department of Health and Human
Services (MDHHS), the local Coordinated Entry
Agency (CEA), or the federal Help for Homeless Veter-
ans program may be able to assist the parties with
payment of some or all of the rent due.
c. Defendants DO NOT need a judgment to receive
assistance from MDHHS or the local CEA. The Sum-
mons and Complaint from the court case are suffi-
cient.2
d. The availability of the Michigan Community
Dispute Resolution Program (CDRP) and local CDRP
Office as a possible source of case resolution. The court
must contact the local CDRP to coordinate resources.
The CDRP may be involved in the resolution of Sum-
mary Proceedings cases to the extent that the chief
judge of each court determines, including conducting
the pretrial hearing.
e. The possibility of a Conditional Dismissal pursu-
ant to MCR 2.602 if approved by all parties. The
parties must be provided with a form to effectuate such
Conditional Dismissal.
(7) The pretrial required under this subsection may
be conducted by the assigned judge, a visiting judge
appointed by SCAO, a magistrate (as long as that
magistrate is a lawyer) or a CDRP mediator.
(8) Except as provided below, all Summary Proceed-
ing Act cases must be adjourned for seven days after
the pretrial hearing is conducted. MCL 600.5732. Any
party who does not appear at the adjourned date will
be defaulted. Cases need not be adjourned for seven

2
See State Emergency Relief Manual, Relocation Services, ERM 303,
ERB 2019-005, Page 3 of 7.
 ADM ORDER NO. 2020-17 clvii

days if: the plaintiff dismisses the complaint, with or

without prejudice, without any conditions, or if defen-
dant was personally served under MCR 2.105(A) and
fails to appear.
(9) The court may require remote participation in
the second, and any subsequent, proceedings, and the
court must verify that participants are able to proceed
in that manner under Administrative Order No.
2020-6. If a party cannot appear remotely, in-person
proceedings must be scheduled that provide for the
safety of all parties.
(10) MCR 4.201(F)(3) is temporarily suspended to
the extent that a jury demand must be made in the
first response. Instead, if the defendant wants a jury
trial, he or she must demand it within seven days of
the first response. The jury trial fee, if not waived by
the court, must be paid when the demand is made.
This order is effective until further order of the
Court.
 ADMINISTRATIVE ORDER
No. 2020-18
ORDER RESUMING USUAL COMPUTATION OF DAYS FOR
DETERMINATION OF DEADLINES APPLICABLE TO THE
COMMENCEMENT OF CIVIL AND PROBATE ACTIONS

Entered June 12, 2020 effective June 20, 2020 (File No. 2020-08)—
REPORTER.

In Administrative Order No. 2020-3, the Supreme

Court issued an order excluding any days that fall
during the State of Emergency declared by the Gover-
nor related to COVID-19 for purposes of determining
the deadline applicable to the commencement of all
civil and probate case types under MCR 1.108(1).
Effective Saturday, June 20, 2020, that administrative
order is rescinded, and the computation of time for
those filings shall resume. For time periods that
started before Administrative Order No. 2020-3 took
effect, the filers shall have the same number of days to
submit their filings on June 20, 2020, as they had
when the exclusion went into effect on March 23, 2020.
For filings with time periods that did not begin to run
because of the exclusion period, the filers shall have
the full periods for filing beginning on June 20, 2020.
Staff Comment: Note that although the order regarding computation
of days entered on March 23, 2020, it excluded any day that fell during
the State of Emergency declared by the Governor related to COVID-19,
which order was issued on March 10, 2020. Thus, the practical effect of

clviii
 ADM ORDER NO. 2020-18 clix

Administrative Order No. 2020-3 was to enable filers to exclude days

beginning March 10, 2020. This timing is consistent with the executive
orders entered by the Governor regarding the tolling of statutes of
limitation.
AMENDED ADMINISTRATIVE ORDER
No. 2020-17
AMENDMENT OF ADMINISTRATIVE ORDER NO. 2020-17

Entered June 24, 2020 effective immediately (File No. 2020-08)—

REPORTER.

On order of the Court, the following amendment of

Administrative Order No. 2020-17 is adopted, effective
immediately.

[Additions to the text are indicated in underlining

and deleted text is shown by strikeover.]

Administrative Order No. 2020-17 — Priority Treat-

ment and New Procedure for Landlord/Tenant Cases.
Since the early days of the pandemic, state and
national authorities have imposed restrictions on the
filing of many landlord/tenant cases. As those restric-
tions are lifted and courts return to full capacity and
reopen facilities to the public, many will experience a
large influx of landlord/tenant case filings. Tradition-
ally, the way most courts processed these types of cases
relied heavily on many cases being called at the same
time in the same place, resulting in large congrega-
tions of individuals in enclosed spaces. That procedure
is inconsistent with the restrictions that will be in
place in many courts over the coming weeks and
clx
 AMENDED ADM ORDER NO. 2020-17 clxi

months as a way to limit the possibility of transmission

of COVID-19. In addition, courts are required to com-
ply with a phased expansion of operations as provided
under Administrative Order No. 2020-14, which may
also impose limits on the number of individuals that
may congregate in public court spaces.
Therefore, the Court adopts this administrative or-
der under 1963 Const, Art VI, Sec 4, which provides for
the Supreme Court’s general superintending control
over all state courts, directing courts to process
landlord/tenant cases using a prioritization approach.
This approach will help limit the possibility of further
infection while ensuring that landlord/tenant cases are
able to be filed and adjudicated efficiently. All courts
having jurisdiction over landlord/tenant cases must
follow policy guidelines established by the State Court
Administrative Office. Courts should be mindful of the
limitations imposed by federal law (under the CARES
Act) as these cases are filed and processed, and follow
the guidance in Administrative Order No. 2020-8 in
determining the appropriate timing for beginning to
consider these cases.
For courts that are able to begin conducting proceed-
ings, the following provisions apply to landlord/tenant
actions.
(1) Each Trial Court with jurisdiction over cases filed
under the Summary Proceedings Act, MCL 600.5701,
et seq., may accept new filings and begin to schedule
hearings as follows:
a. In a manner that is consistent with the Return to
Full Capacity (RTFC) guidelines referenced in Admin-
istrative Order No. 2020-14,
b. In a manner that is consistent with each court’s
most recently-approved local administrative order re-
garding Return to Full Capacity.
clxii 505 MICHIGAN REPORTS

(2) When a trial court resumes scheduling hearings

for recovery of possession of premises under MCL
600.5714 and MCL 600.5775, the following operational
priorities apply:
a. First priority: complaints alleging illegal activity
under MCL 600.5714(1)(b), and complaints alleging
extensive and continuing physical injury to the prem-
ises under MCL 600.5714(1)(d), complaints alleging
that the tenant or someone in the tenant’s household
has caused or threatened physical injury to an indi-
vidual while on the leased property under MCL
600.5714(1)(e), and complaints alleging that the tenant
is trespassing or squatting under MCL 600.5714(1)(f).
b. Second priority: complaints alleging nonpayment
of rent for 120 days or more.
c. Third priority: complaints alleging nonpayment of
rent for 90 days or more.
d. Fourth priority: complaints alleging nonpayment
of rent for 60 days or more.
e. Fifth priority: complaints alleging nonpayment of
rent for 30 days or more.
f. Sixth Priority: All cases described in First Priority
through Fifth Priority that are filed after a court has
moved to the next priority designation, and any case
for recovery of possession of premises where the com-
plaint alleges nonpayment of rent of less than 30 days.
Cases filed in a lower numerical priority designation
(e.g., a second priority case filed during a court’s
priority five period) shall be given first consideration in
order of priority.
gf. Courts should proceed to a subsequent priority
when all cases in the higher priority have been sched-
uled for hearing.
 AMENDED ADM ORDER NO. 2020-17 clxiii

hg. Instead of setting many cases for one hearing

time as has traditionally been common, each case must
be scheduled for a particular date and time (whether
held in-person or remotely) to allow in-person proceed-
ings to be held safely.
ih. A filer who filed a case before April 16, 2020 (the
date Administrative Order No. 2020-8 entered) must
update the factual allegations in the complaint and file
the verification form required by Administrative Order
No. 2020-8 before a hearing will be scheduled. The
form will allow a filer to indicate that the case was filed
before the moratorium period began and therefore,
even if a covered dwelling, is not foreclosed from
proceeding. If the filer must remove any fees or costs
that are prohibited under the CARES Act, the filer
must file an amended complaint for any action that
proceeds during the moratorium period. The court
shall not require an additional filing fee.
(3) Except as otherwise provided, Ttrial Ccourts
must schedule cases filed for an alleged termination of
tenancy (as opposed to cases for nonpayment of rent)
pursuant to MCL 600.5714 during or after the fifth
level of priority described above or after the
statutorily-required notice period has elapsed, which-
ever comes later. A court may consider a termination
case before the fifth level of priority upon motion by
plaintiff alleging that there is good cause to consider
the case earlier for reasons of public safety or other just
cause, including but not limited to matters brought
under MCL 600.5775.
(4) Courts are authorized to proceed with these
actions by way of remote participation tools, and en-
couraged to do so to the greatest extent possible.
Administrative Order No. 2020-6 requires that the
court scheduling a remote hearing must “verify that all
clxiv 505 MICHIGAN REPORTS

participants are able to proceed in this manner.”

Therefore, the summons for each case filed under the
Summary Proceedings Act must provide the date and
time for remote participation in the scheduled hearing.
In addition, the summons must be accompanied by any
written information about the availability of counsel
and housing assistance information as provided by
legal aid or local funding agencies. If a remote hearing
is scheduled for the first proceeding, the defendant
received personal service pursuant to MCR 2.105(A),
and the defendant fails to appear, a default may enter.
If a remote hearing is scheduled for the first proceeding
and the defendant fails to appear and has not been
served under MCR 2.105(A), the court may not enter a
default but must reschedule the hearing and mail
notice for that rescheduled hearing as an in-person
proceeding. Under these conditions, a notice of re-
scheduled hearing mailed by the court within 24 hours
after the initial hearing date is sufficient notice of the
rescheduled hearing, notwithstanding any other court
rule. Other parties or participants may proceed re-
motely.
(5) All local administrative orders requiring a writ-
ten answer pursuant to MCL 600.5735(4) are sus-
pended.1 Unless otherwise provided by this order, a
court must comply with MCR 4.201 with regard to
summary proceedings.
(6) At the initial hearing noticed by the summons,
the court must conduct a pretrial hearing consistent

1
The local administrative orders include: 1st District Court (Monroe
County); 2a District Court (Lenawee County); 12th District Court
(Jackson County); 18th District Court (City of Westland); 81st District
Court (Alcona, Arenac, Iosco, and Oscoda Counties); 82nd District
(Ogemaw County); and 95b District Court (Dickinson and Iron Coun-
ties).
 AMENDED ADM ORDER NO. 2020-17 clxv

with SCAO guidance. At the pretrial hearing the

parties must be verbally informed of all of the follow-
ing:
a. Defendant has the right to counsel. MCR
4.201(F)(2).
b. The Michigan Department of Health and Human
Services (MDHHS), the local Coordinated Entry
Agency (CEA), or the federal Help for Homeless Veter-
ans program may be able to assist the parties with
payment of some or all of the rent due.
c. Defendants DO NOT need a judgment to receive
assistance from MDHHS or the local CEA. The Sum-
mons and Complaint from the court case are suffi-
cient.2
d. The availability of the Michigan Community
Dispute Resolution Program (CDRP) and local CDRP
Office as a possible source of case resolution. The court
must contact the local CDRP to coordinate resources.
The CDRP may be involved in the resolution of Sum-
mary Proceedings cases to the extent that the chief
judge of each court determines, including conducting
the pretrial hearing.
e. The possibility of a Conditional Dismissal pursu-
ant to MCR 2.602 if approved by all parties. The
parties must be provided with a form to effectuate such
Conditional Dismissal.
(7) The pretrial required under this subsection may
be conducted by the assigned judge, a visiting judge
appointed by SCAO, a magistrate (as long as that
magistrate is a lawyer) or a CDRP mediator.

2
See State Emergency Relief Manual, Relocation Services, ERM 303,
ERB 2019-005, Page 3 of 7.
clxvi 505 MICHIGAN REPORTS

(8) Except as provided below, all Summary Proceed-

ing Act cases must be adjourned for seven days after
the pretrial hearing is conducted. MCL 600.5732. Any
party who does not appear at the adjourned date will
be defaulted. Cases need not be adjourned for seven
days if: the plaintiff dismisses the complaint, with or
without prejudice, and without any conditions, or if
defendant was personally served under MCR 2.105(A)
and fails to appear, or where both plaintiff and defen-
dant are represented by counsel and a consent judg-
ment or conditional dismissal is filed with the court.
Where plaintiff and defendant are represented by
counsel, the parties may submit a conditional dis-
missal or consent judgment in lieu of appearing per-
sonally at the second hearing.
(9) The court may require remote participation in
the second, and any subsequent, proceedings, and the
court must verify that participants are able to proceed
in that manner under Administrative Order No.
2020-6. If a party cannot appear remotely, in-person
proceedings must be scheduled that provide for the
safety of all parties.
(10) MCR 4.201(F)(3) is temporarily suspended to
the extent that a jury demand must be made in the
first response. Instead, if the defendant wants a jury
trial, he or she must demand it within seven days of
the first response. The jury trial fee, if not waived by
the court, must be paid when the demand is made.
(11) A court shall discontinue compliance with this
order when it has proceeded through all priority
phases and no longer has any landlord/tenant filings
that allege a breach of contract for the time period
between March 20, 2020, and June 30, 2020 (the pe-
riod in which there was a statewide moratorium on
evictions). At that point, the court may notify the
 AMENDED ADM ORDER NO. 2020-17 clxvii

regional administrator of its completion of the process

and will not be required to return to the procedure
even if a subsequent case is filed that alleges rent
owing during the period of the eviction moratorium.
This order is effective until further order of the
Court.
Staff Comment: The amendments in this order reflect the Court’s
consideration of feedback provided after the initial order entered and
before the eviction moratorium expired. For the convenience of the
reader, an updated version of the order reflecting the amendments is
attached here.
The staff comment is not an authoritative construction by the Court.
In addition, adoption of a new rule or amendment in no way reflects a
substantive determination by this Court.
 ADMINISTRATIVE ORDER
No. 2020-19
CONTINUING ORDER REGARDING COURT OPERATIONS

Entered June 26, 2020 effective immediately (File No. 2020-08)—

REPORTER.

For the last several months, courts have been oper-

ating under special rules to ensure that essential
functions continue while also limiting access to physi-
cal locations as a way to limit the spread of COVID-19
for both court staff and court visitors. As courts return
to full capacity it is now appropriate to revisit those
early orders.
In Administrative Order No. 2020-14, the Court
made it clear that all courts must adopt a phased
approach to a return to full capacity of operations.
Courts have been submitting their required local ad-
ministrative orders and are balancing protecting pub-
lic health and increasing operations. The technological
tools courts used to ensure access during the closure
should be maintained and indeed used more frequently
to rebuild capacity.
Therefore, on order of the Court:
1. Administrative Order No. 2020-2 is rescinded,
with the expectation that courts shall continue to
process those cases listed as essential functions in
addition to other cases as courts return to full capacity
clxviii
 ADM ORDER NO. 2020-19 clxix

under the terms of Administrative Order No. 2020-14.

Courts that have progressed to Phase 3 under the
Return to Full Capacity guidance document under
Administrative Order No. 2020-14 shall begin holding
jury trials using trial standards approved by the State
Court Administrative Office. In addition, courts that
are not yet at Phase 3 may proceed with jury trials
upon approval from the State Court Administrative
Office. Further, courts must continue to provide a
method or methods for filers to submit pleadings other
than by personal appearance at the court.
2. Courts shall continue to expand the use of remote
participation technology (video or telephone) as much
as possible to reduce any backlog and to dispose of new
cases efficiently and safely. As articulated in Adminis-
trative Order No. 2020-1 and Administrative Order
No. 2020-6, as courts expand their use of remote
technology tools, courts must continue to verify that
participants are able to proceed remotely, and should
permit some participants to appear remotely even if all
participants are not able to participate electronically.
To enable the greatest participation possible for judi-
cial officers, Administrative Order No. 2012-7 (which
limits the circumstances under which judges may
preside over remote proceedings) is suspended until
further order of the Court.
3. Administrative Order No. 2020-9 adopted tempo-
rary amendments that promoted the use of electronic
means to access the courts and enabled parties to
proceed with litigation, as well as extended some filing
deadlines. The amendments of MCR 2.002, MCR
2.107(C), MCR 3.904, and the issuance of subpoenas
under MCR 2.305, MCR 2.506, MCR 2.621(C), MCR
9.112(D), MCR 9.115(I)(1), and MCR 9.212 continue in
effect until further order of the Court. The time dead-
clxx 505 MICHIGAN REPORTS

lines in MCR 2.102(D), MCR 2.614, MCR 3.216(G)(3),

and MCR 2.411(F)(4), are extended 80 days, reflecting
the period between March 24, 2020 and June 12, 2020.
The time deadlines in rules regarding postjudgment
motions filed in the trial court (including motions for
appointment of appellate counsel) as well as circuit
court appeals and appeals of agency determinations
are extended for 76 days, consistent with Administra-
tive Order No. 2020-16.
4. Administrative Order No. 2020-13 allows courts
to collect certain information, including mobile phone
number(s) and e-mail addresses, to facilitate schedul-
ing of and participation in remote hearings. The order
has generated some confusion about how to handle
nonconfidential information. To clarify that the form
for collecting information (but not the information
itself if it is contained elsewhere in a public portion of
the file) is nonpublic, the administrative order is
amended as follows:
To protect privacy and address security concerns,
tThe contact information form used under this admin-
istrative order to collect the information shall be con-
fidential.
This order is effective until further order of the
Court.
 MICHIGAN RULE CHANGES

Adopted November 13, 2019, effective January 1, 2020 (File No.

2002-37 and File No. 2018-19)—REPORTER.

On order of the Court, the following amendment of

Rule 3.206 of the Michigan Court Rules is adopted,
effective January 1, 2020. The amendments in this
order replace the separate amendments of MCR 3.206
included as part of ADM File No. 2002-37 (entered on
9/18/19) and ADM File No. 2018-19 (entered on
6/19/19).

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 3.206. INITIATING A CASE.

(A) Information in Case Initiating Document.
(1) The form, captioning, signing, and verifying of
documents are prescribed in MCR 1.109(D) and (E).
(2)-(6) [Unchanged.]
(B) [Unchanged.]
(C) Verified Statement and Verified Financial In-
formation Form.
(1) Verified Statement. In an action involving a
minor, or if child support or spousal support is re-
quested, the party seeking relief must provide to the
friend of the courtattach a verified statement contain-
clxxi
clxxii 505 MICHIGAN REPORTS

ing, at a minimum, personal identifying, financial, and

health care coverage information of the parties and
minor children. A copy of the Verified Statement must
beto the copies of the papers served on the other party
and provided to the friend of the court. The Verified
Statement must be completed on a form approved by
the State Court Administrative Office., stating
(a) the last known telephone number, post office
address, residence address, and business address of
each party;
(b) the social security number and occupation of
each party;
(c) the name and address of each party’s employer;
(d) the estimated weekly gross income of each
party;
(e) the driver’s license number and physical de-
scription of each party, including eye color, hair color,
height, weight, race, gender, and identifying marks;
(f) any other names by which the parties are or
have been known;
(g) the name, age, birth date, social security num-
ber, and residence address of each minor involved in
the action, as well as of any other minor child of either
party;
(h) the name and address of any person, other than
the parties, who may have custody of a minor during
the pendency of the action;
(i) the kind of public assistance, if any, that has
been applied for or is being received by either party or
on behalf of a minor, and the AFDC and recipient
identification numbers; if public assistance has not
been requested or received, that fact must be stated;
and
 MICHIGAN RULE CHANGES clxxiii

(j) the health care coverage, if any, that is available

for each minor child; the name of the policyholder; the
name of the insurance company, health care organiza-
tion, or health maintenance organization; and the
policy, certificate, or contract number.
(2) Verified Financial Information Form. Unless
waived in writing by the parties, or unless a settlement
agreement or consent judgment of divorce or other
final order disposing of the case has been signed by
both parties at the time of filing, and except as set forth
below, each party must serve a Verified Financial
Information Form (as provided by SCAO) within 28
days following the date of service of defendant’s initial
responsive pleading. If a party is self-represented and
his or her address is not disclosed due to domestic
violence, the parties’ Verified Financial Information
forms will be exchanged at the first scheduled matter
involving the parties or in another manner as specified
by the court or stipulated to by the parties. A party who
is a victim of domestic violence, sexual assault or
stalking by another party to the case, may omit any
information which might lead to the location of where
the victim lives or works, or where a minor child may
be found. Failing to provide this Verified Financial
Information form may be addressed by the court or by
motion consistent with MCR 2.313. The Verified Finan-
cial Information form does not preclude other discov-
ery. A proof of service must be filed when Verified
Financial Information forms are served.
(23) The information in the Vverified Sstatement
and Verified Financial Information forms is confiden-
tial, and is not to be released other than to the court,
the parties, or the attorneys for the parties, except on
court order. For good cause, the addresses of a party
and minors may be omitted from the copy of the
clxxiv 505 MICHIGAN REPORTS

Verified Sstatement and Verified Financial Informa-

tion forms that areis served on the other party. If a
party excludes his or her address for good cause, that
party shall either:
(a) submit to electronic filing and electronic service
under MCR 1.109(G), or
(b) provide an alternative address where mail can
be received.
(34) If any of the information required to be in the
Vverified Sstatement or Verified Financial Information
forms is omitted, the party seeking relief must explain
the reasons for the omission in those formsa sworn
affidavit, or in a separate statement, verified under
MCR 1.109(D)(3)(b) to be filed with the court by the
due date of the form.
(5) A party who has served a Verified Financial
Information form must supplement or correct its dis-
closure as ordered by the court or otherwise in a timely
manner if the party learns that in some material
respect the Verified Financial Information form is
incomplete or incorrect, and if the additional or correc-
tive information has not otherwise been made known
to the other parties during the action or in writing.
(6) When the action is to establish paternity or
child support and the pleadings are generated from
Michigan’s automated child support enforcement sys-
tem, the party is not required to comply with subrule
(C)(1) or (C)(2). However, the party may comply with
subrule (C)(1) and (C)(2) to provide the other party an
opportunity to supply any omissions or correct any
inaccuracies.
(D) Attorney Fees and Expenses.
(1) [Unchanged.]
 MICHIGAN RULE CHANGES clxxv

(2) A party who requests attorney fees and ex-

penses must allege facts sufficient to show that
(a) the party is unable to bear the expense of the
action, including the expense of engaging in discovery
appropriate for the matter, and that the other party is
able to pay, or
(b) the attorney fees and expenses were incurred
because the other party refused to comply with a
previous court order, despite having the ability to
comply, or engaged in discovery practices in violation of
these rules.
Staff Comment: This amendment of MCR 3.206 combines and
harmonizes two amendments issued in separate ADM files (ADM File
No. 2002-37 and ADM File No. 2018-19) amending the same rule.
The staff comment is not an authoritative construction by the
Court. In addition, adoption of a new rule or amendment in no way
reflects a substantive determination by this Court.

Adopted November 20, 2019, effective January 1, 2020 (File No.

2018-28)—REPORTER.

On order of the Court, notice of the proposed

changes and an opportunity for comment in writing
and at a public hearing having been provided, and
consideration having been given to the comments re-
ceived, the following amendment of Local Court Rule
2.119 for the Court of Claims is adopted, effective
January 1, 2020.

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 2.119. MOTION PRACTICE.

(A) Form of Motions.
(1) [Unchanged.]
clxxvi 505 MICHIGAN REPORTS

(2) The moving party must affirmatively state that

he or she requested opposing counsel’s concurrence in
the relief sought on a specified date, and that opposing
counsel has denied or not acquiesced in the relief
sought, and therefore, that it is necessary to present
the motion.
(2)-(6) [Renumbered (3)-(7) but otherwise un-
changed.]
(B)-(G) [Unchanged.]
Staff comment: The amendment of LCR 2.119 for the Court of Claims
requires a moving party to affirmatively state that he or she has sought
concurrence in the relief sought on a specific date, and opposing counsel
denied concurrence in the relief sought.
The staff comment is not an authoritative construction by the Court.
In addition, adoption of an amendment in no way reflects a substantive
determination by this Court.

Adopted November 20, 2019, effective January 1, 2020 (File No.

2018-31)—REPORTER.

On order of the Court, notice of the proposed

changes and an opportunity for comment in writing
and at a public hearing having been provided, and
consideration having been given to the comments re-
ceived, the following amendment of Rule 2 of the Rules
Concerning the State Bar of Michigan is adopted,
effective January 1, 2020.

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 2. MEMBERSHIP.
Those persons who are licensed to practice law in
this state shall constitute the membership of the State
Bar of Michigan, subject to the provisions of these
 MICHIGAN RULE CHANGES clxxvii

rules. Law students may become law student section

members of the State Bar Law Student Section. None
other than a member’s correct name shall be entered
upon the official register of attorneys of this state.
Each member, upon admission to the State Bar and in
the annual dues noticestatement, must provide the
State Bar with the member’s correct name, physical
address, and email address, that can be used, among
other things, for the annual dues notice and to effec-
tuate electronic service as authorized by court rule,
and such additional information as may be required. If
the physical address provided is a mailing address
only, the member also must provide a street or building
address for the member’s business or residence. No
member shall practice law in this state until thesuch
information required in this Rule has been provided.
Members shall notify the State Bar promptly update
the State Bar within writing of any change of name,
physical address, or email address. The State Bar shall
be entitled to due notice of, and to intervene and be
heard in, any proceeding by a member to alter or
change the member’s name. The name and address on
file with the State Bar at the time shall control in any
matter arising under these rules involving the suffi-
ciency of notice to a member or the propriety of the
name used by the member in the practice of law or in
a judicial election or in an election for any other public
office. Every active member shall annually provide a
certification as to whether the member or the mem-
ber’s law firm has a policy to maintain interest-bearing
trust accounts for deposit of client and third-party
funds. The certification shall be includedplaced on the
face of the annual dues notice and shall require the
member’s signature or electronic signature.
clxxviii 505 MICHIGAN REPORTS

Staff Comment: The amendment of Rule 2 of the Rules Concerning

the State Bar of Michigan updates and expands the rule slightly to
include reference to a member’s email address.
The staff comment is not an authoritative construction by the Court.
In addition, adoption of an amendment in no way reflects a substantive
determination by this Court.

Adopted November 20, 2019, effective January 1, 2020 (File No.

2018-36)—REPORTER.

On order of the Court, notice of the proposed

changes and an opportunity for comment in writing
and at a public hearing having been provided, and
consideration having been given to the comments re-
ceived, the following amendment of Rule 3.802 of the
Michigan Court Rules is adopted, effective January 1,
2020.

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 3.802. MANNER AND METHOD OF SERVICE.

(A) Service of Documents.
(1) [Unchanged.]
(2) Notice of a petition to identify a putative father
and to determine or terminate his rights, or a petition
to terminate the rights of a noncustodial parent under
MCL 710.51(6), must be served on the individual or the
individual’s attorney in the manner provided in:
(a)-(b) [Unchanged.]
(3)-(4) [Unchanged.]
(B) Service When Identity or Whereabouts of Fa-
ther areis Unascertainable
(1)-(2) [Unchanged.]
 MICHIGAN RULE CHANGES clxxix

(C) Service When Whereabouts of Noncustodial

Parent areis Unascertainable. If service of a petition to
terminate the parental rights of a noncustodial parent
pursuant to MCL 710.51(6) cannot be made under
subrule (A)(2) because the whereabouts of thatthe
noncustodial parent havehas not been ascertained af-
ter diligent inquiry, the petitioner must file proof of the
efforts made to locate thatthe noncustodial parent in a
statement verified under MCR 1.109(D)(3). If the court
finds, on reviewing the statement, that service cannot
be made because the whereabouts of the person have
has not been determined after reasonable efforts, the
court may direct any manner of substituted service of
the notice of hearing, including service by publication.
(D) [Unchanged.]
Staff comment: The amendment of MCR 3.802 eliminates references
to the “noncustodial parent” to make the rule consistent with the statute
(MCL 710.51) allowing stepparent adoption when the petitioning step-
parent’s spouse has joint legal custody, rather than requiring sole legal
custody.
The staff comment is not an authoritative construction by the Court.
In addition, adoption of an amendment in no way reflects a substantive
determination by this Court.

Adopted November 20, 2019, effective January 1, 2020 (File No.

2019-02)—REPORTER.

On order of the Court, notice of the proposed

changes and an opportunity for comment in writing
and at a public hearing having been provided, and
consideration having been given to the comments re-
ceived, the following amendment of Rule 9.123 of the
Michigan Court Rules is adopted, effective January 1,
2020.
clxxx 505 MICHIGAN REPORTS

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 9.123. ELIGIBILITY FOR REINSTATEMENT.

(A) Suspension, 179 Days or Less. An attorney
whose license has been suspended for 179 days or less
pursuant to disciplinary proceedings may beis auto-
matically reinstated in accordance with this rule. The
attorney may file, not sooner than 7 days before the
last day of the suspension, with the board and serve on
the administrator by filing with the Supreme Court
clerk, the board, and the administrator an affidavit
showing that the attorney has fully complied with all
requirementsthe terms and conditions of the suspen-
sion order. The affidavit must contain a statement that
the attorney will continue to comply with the suspen-
sion order until the attorney is reinstated. A materially
false statement contained in the affidavit is ground for
disbarmenta basis for an action by the administrator
and additional discipline. Within 7 days after the filing
of the affidavit, the administrator may file with the
board and serve on the attorney an objection to rein-
statement based on the attorney’s failure to demon-
strate compliance with the suspension order. If the
administrator files an objection, an order of reinstate-
ment will be issued only if the objection is withdrawn
or a hearing panel makes a determination that the
attorney has complied with the suspension order. An
objection which cannot be resolved without the adjudi-
cation of a disputed issue of fact shall be promptly
referred to a hearing panel for decision on an expedited
basis. If the administrator does not file an objection
and the board is not otherwise apprised of a basis to
conclude that the attorney has failed to comply with
the suspension order, the board must promptly issue
 MICHIGAN RULE CHANGES clxxxi

an order of reinstatement. The order must be filed and

served under MCR 9.118(F).
(B)-(D) [Unchanged.]
(E) Abatement or Modification of Conditions of
Discipline or Reinstatement. When a condition has
been imposed in an order of discipline or in an order of
reinstatement, the attorney may request an order of
abatement discharging the lawyer from the obligation
to comply with the condition, or an order modifying the
condition. The attorney may so request either before or
with the attorney’s affidavit of compliance under MCR
9.123(A) or petition for reinstatement under MCR
9.123(B). The request may be granted only if the
attorney shows by clear and convincing evidence that a
timely, good-faith effort has been made to meet the
condition but it is impractical to fulfill the condition.
Staff Comment: The amendment of MCR 9.123 updates the attorney
discipline process for reinstatement of short-term suspensions and
allows for abatement or modification of a condition in certain circum-
stances.
The staff comment is not an authoritative construction by the Court.
In addition, adoption of an amendment in no way reflects a substantive
determination by this Court.

Adopted November 20, 2019, effective January 1, 2020 (File No.

2019-04)—REPORTER.

On order of the Court, notice of the proposed

changes and an opportunity for comment in writing
and at a public hearing having been provided, and
consideration having been given to the comments re-
ceived, the following amendment of Rule 5.117 of the
Michigan Court Rules is adopted, effective January 1,
2020.
clxxxii 505 MICHIGAN REPORTS

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 5.117. APPEARANCE BY ATTORNEYS.

(A) [Unchanged.]
(B) Appearance.
(1) In General. An attorney may generally appear
by an act indicating that the attorney represents an
interested person in the proceeding. A limited appear-
ance may be made by an attorney for an interested
person in a civil action or a proceeding as provided in
MCR 2.117(B)(2)(c), except that any reference to par-
ties of record in MCR 2.117(B)(2)(c) shall instead refer
to interested persons. An appearance by an attorney
for an interested person is deemed an appearance by
the interested person. Unless a particular rule indi-
cates otherwise, any act required to be performed by an
interested person may be performed by the attorney
representing the interested person.
(2) [Unchanged.]
(3) Appearance by Law Firm.
(a) [Unchanged.]
(b) The appearance of an attorney is deemed to be
the appearance of every member of the law firm. Any
attorney in the firm may be required by the court to
conduct a court-ordered conference or trial if it is
within the scope of the appearance.
(C) Duration of Appearance by Attorney.
(1)-(4) [Unchanged.]
(5) Limited Scope Appearances. Notwithstanding
other provisions in this section, limited appearances
under MCR 2.117(B)(2)(c) may be terminated in accor-
dance with MCR 2.117(C)(3), except that any
 MICHIGAN RULE CHANGES clxxxiii

reference to parties of record in MCR 2.117(B)(2)(c)

shall instead refer to interested persons.
(56) [Renumbered but otherwise unchanged.]
(D) [Unchanged.]

Staff Comment: The amendment of MCR 5.117 clarifies that the

rules authorizing limited scope representation are explicitly applicable
to civil cases and proceedings in probate court.
The staff comment is not an authoritative construction by the
Court. In addition, adoption of an amendment in no way reflects a
substantive determination by this Court.

Adopted December 18, 2019, effective January 1, 2020 (File No.

2019-03)—REPORTER.

On order of the Court, notice of the proposed

changes and an opportunity for comment in writing
and at a public hearing having been provided, and
consideration having been given to the comments re-
ceived, the following amendment of Rule 8.110 of the
Michigan Court Rules is adopted, effective January 1,
2020.

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 8.110. CHIEF JUDGE RULE.

(A) [Unchanged.]
(B) Chief Judge, Chief Judge Pro Tempore, and
Presiding Judges of Divisions.
(1) The Supreme Court shall select a judge to serve
as chief judge of each trial court. Any judge seeking
appointment as chief judge shall complete and submit
an application for chief judge on the form available on
clxxxiv 505 MICHIGAN REPORTS

SCAO’s website. The application will describe the

criteria for selection of chief judges. SCAO will also
provide an opportunity for any judge or judges to
provide information to the Court (which will be kept
confidential) regarding the selection of a particular
person as chief judge. When SCAO is considering
whether to consolidaterecommending appointment of a
chief judge of a specific group of courts under the
supervision of a single chief judge, SCAO shall inform
and seek input from those courts. SCAO may seek
additional information as needed from any court or
judge during the appointment process, and will give
respectful consideration to all applicants and to any
information it receives. Any judge of a court or group of
courts may submit an application or recommendation
to SCAO regarding the selection of a chief judge for
that court or group of courts.
(2) [Unchanged.]
(3) The chief judge, chief judge pro tempore, and
any presiding judges shall serve a two-year term
beginning on January 1 of each even-numbered year,
provided that the chief judge serves at the pleasure of
the Supreme Court and the chief judge pro tempore
and any presiding judges serve at the pleasure of the
chief judge. A chief judge shall attend training as
required by the State Court Administrator.
(4) [Unchanged.]
(C) Duties and Powers of Chief Judge.
(1)-(8) [Unchanged.]
(9) The delegation of such authority to a chief
judge does not in any way limit the Supreme Court’s
authority to exercise “general superintending control
over all courts” under Const 1963, art 6, § 4.
 MICHIGAN RULE CHANGES clxxxv

(D) Court Hours; Court Holidays; Judicial Ab-

sences.
(1)-(2) [Unchanged.]
(3) Judicial Vacation Standard. A judge mayis ex-
pected to take an annual vacation leave of 20 days with
the approval of the chief judge to ensure docket coor-
dination and coverage. A judge may take an additional
10 days of annual vacation leave with the approval of
the chief judge. A maximum of 1530 days of annual
vacation unused due to workload constraints may be
carried from one calendar year into the first quarter of
the next calendar year and used during that quarter, if
approved by the chief judge. Vacation days do not
include:
(a)-(e) [Unchanged.]
(4)-(6) [Unchanged.]
Staff comment: The amendments of this rule expand and clarify the
chief judge selection process, modify the judicial vacation standard as it
relates to the number of carryover days and when they may be used, and
allow the State Court Administrator to require a chief judge to attend
training.
The staff comment is not an authoritative construction by the Court.
In addition, adoption of an amendment in no way reflects a substantive
determination by this Court.

Adopted December 27, 2019, effective January 1, 2020 (File No.

2018-19)—REPORTER.

On order of the Court, the following amendment of

Rule 3.229 of the Michigan Court Rules is adopted,
effective January 1, 2020.

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]
clxxxvi 505 MICHIGAN REPORTS

RULE 3.229. FILING CONFIDENTIAL MATERIALS.

(A) If a party or interested party files any of the
following items with the court, the party shall identify
the document as a confidential document and the items
shall be served on the other parties in the case and
maintained in a nonpublic file in accordance with
subrule (B):
(1)-(8) [Unchanged.]
(B) Any item filed and identified under subrule (A)
is nonpublic and must be maintained separately from
the legal file. The filer waives any claim of confidenti-
ality to any item filed under subrule (A) that is not
identified by the filer as confidential. The nonpublic file
must be made available for any appellate review.
Staff comment: The amendment of MCR 3.229 requires the filer to
identify nonpublic documents when they are submitted to the clerk, and
stipulates that the filer waives any claim of confidentiality where such
documents are filed without a designation of confidentiality. These
amendments update the language originally adopted by the Court as
part of the civil discovery rules proposal in ADM File No. 2018-19.
The staff comment is not an authoritative construction by the
Court. In addition, adoption of an amendment in no way reflects a
substantive determination by this Court.

Adopted January 8, 2020, effective May 1, 2020 (File No. 2018-30)

—REPORTER.

On order of the Court, notice of the proposed

changes and an opportunity for comment in writing
and at a public hearing having been provided, and
consideration having been given to the comments re-
ceived, the following amendment of Rule 8.115 of the
Michigan Court Rules is adopted, effective May 1,
2020.
 MICHIGAN RULE CHANGES clxxxvii

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 8.115. COURTROOM DECORUM; POLICY REGARDING

USE OF CELL PHONES OR OTHER PORTABLE ELECTRONIC
COMMUNICATION DEVICES.
(A)-(B) [Unchanged.]
(C) Use ofEstablishment of a Policy Regarding
Portable Electronic Communication Devices in a
Courthouse.
(1) Purpose. This rule specifies the permitted and
prohibited uses of portable electronic devices in a
courthouse. A court must use reasonable means to
advise courthouse visitors of the provisions of this rule.
Any allowed use of a portable electronic device under
this rule is subject to the authority of a judge to
terminate activity that is disruptive or distracting to a
court proceeding, or that is otherwise contrary to the
administration of justice. This rule does not modify or
supersede the guidelines for media coverage of court
proceedings set forth in AO No. 1989-1.A facility that
contains a courtroom may determine use of electronic
equipment in nonjudicial areas of the facility.
(2) The chief judge may establish a policy regard-
ing the use of cell phones or other portable electronic
communication devices within the court, except that no
photographs may be taken of any jurors or witnesses,
and no photographs may be taken inside any court-
room without permission of the court. The policy re-
garding the use of cell phones or other portable elec-
tronic communication devices shall be posted in a
conspicuous location outside and inside each court-
room. Failure to comply with this section or with the
policy established by the chief judge may result in a
fine, including confiscation of the device, incarceration,
clxxxviii 505 MICHIGAN REPORTS

or both for contempt of court. Definitions. The follow-

ing definitions apply in this rule:
(a) A “portable electronic device” is a mobile device
capable of electronically storing, accessing, or trans-
mitting information. The term encompasses, among
other things, a transportable computer of any size,
including a tablet, a notebook, and a laptop; a smart
phone, a cell phone, or other wireless phone; a camera
and other audio or video recording devices; a personal
digital assistant (PDA); other devices that provide
internet access; and any similar items.
(b) A “courthouse” includes all areas within the
exterior walls of a court building, or if the court does
not occupy the entire building, that portion of the
building used for the administration and operation of
the court. A “courthouse” also includes areas outside a
court building where a judge conducts an event con-
cerning a court case.
(c) A “courtroom” includes the portion of a court-
house in which the actual proceedings take place.
(3) Photography and audio or video recording,
broadcasting, or live streaming. Except for requests for
film or electronic media coverage of court proceedings
as permitted under AO No. 1989-1, the following re-
strictions apply to photography, audio recording, video
recording, broadcasting, or live streaming in a court-
house.
(a) In a courtroom: In a courtroom, no one may use
a portable electronic device to take photographs or for
audio or video recording, broadcasting, or live stream-
ing unless that use is specifically allowed by the Judge
presiding over that courtroom.
(b) Outside a courtroom: In areas of a courthouse
other than courtrooms, no one may photograph, record,
 MICHIGAN RULE CHANGES clxxxix

broadcast, or live stream an individual without that

individual’s prior express consent.
(c) Jurors: No one may photograph, record, broad-
cast, or live stream any juror or anyone called to the
court for jury service.
(d) Local orders: By local administrative order, a
court may adopt further reasonable limits on photog-
raphy and audio or video recording or broadcasting in
a courthouse that are not inconsistent with this rule.
(4) Jurors and witnesses. The following restric-
tions apply to use of portable electronic devices by
jurors, including prospective jurors, and by witnesses.
(a) Jurors: Jurors must turn off their portable
electronic devices while present in a courtroom. A court
may order jurors to turn over to the court their
portable electronic devices during deliberations. If so,
the court must provide jurors with a phone number
where they can be reached in case of an emergency
during deliberations.
(b) Witnesses: A witness must silence any portable
electronic device while in a courtroom, and may use a
device while testifying only with permission of a judge.
(5) Attorneys, parties, and members of the public.
The following provisions apply to use of portable elec-
tronic devices in a courtroom by attorneys, parties, and
members of the public.
(a) Allowed uses: Attorneys, parties, and members
of the public may use a portable electronic device in a
courtroom to retrieve or to store information (including
notetaking), to access the Internet, and to send and
receive text messages or information. Attorneys, par-
ties, and members of the public may use a portable
electronic device to reproduce public court documents
in a clerk’s office as long as the device leaves no mark
cxc 505 MICHIGAN REPORTS

or impression on the document and does not unreason-

ably interfere with the operation of the clerk’s office.
(b) Prohibited uses: Attorneys, parties, and mem-
bers of the public must silence portable electronic
devices while in the courtroom. A portable electronic
device may not be used, without permission of the
court, to make or to receive telephone calls or for any
other audible function while court is in session. Por-
table electronic devices may not be used to communi-
cate in any way with any courtroom participant includ-
ing, but not limited to, a party, a witness, or juror at
any time during any court proceedings. Additional
prohibited uses related to photography, recording, and
broadcasting are found in 8.115(C)(3) above.
(6) Use of a portable electronic device outside a
courtroom; limitations. Except as provided in para-
graphs (3), (4) and (5) of this rule, a person may use a
portable electronic device in a courthouse, subject to
the authority of judges, Clerks of the Court, or court
administrators to limit or terminate activity that is
disruptive to court operations or that compromises
courthouse security.
(7) Violations of this rule. If these rules are vio-
lated, the presiding judge may confiscate the device for
the remainder of the day or order that the phone be
turned off and put away. Violations of this rule are
punishable by appropriate sanctions up to and includ-
ing contempt of court as determined in the discretion of
the court.
Staff comment: The amendment of MCR 8.115, submitted by the
Michigan State Planning Body, explicitly allows the use of cellular
phones (as well as prohibits certain uses) in a courthouse. The rule
makes cell phone and electronic device use policies consistent from one
court to another, and broadens the ability of litigants to use their devices
in support of their court cases when possible.
 MICHIGAN RULE CHANGES cxci

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

In addition, adoption of an amendment in no way reflects a substantive
determination by this Court.

MARKMAN, J. (dissenting). A better sense of priority

by this Court in exercising its superintending author-
ity over our judiciary would, in my judgment, be to
accord less regard for the proposition that all persons
attending our courtrooms must be allowed to remain in
the possession of “smartphones” and to accord more
regard for the proposition that criminal and civil trials
taking place in these courtrooms must proceed in a
manner ensuring that their participants—judges, ju-
rors, litigants, witnesses, attorneys, and court
staff—be accommodated as much as reasonably pos-
sible in the stressful circumstances under which each
carries out responsibilities in the pursuit of justice
under law. A further sense of priority would be to
accord greater deference in this regard to the judg-
ments of trial judges throughout this state who are
principally charged with ensuring that such trials
proceed in a fair, efficient, orderly, and serious-minded
manner.
Available for this Court’s consideration have been
at least the following options: (a) preserving the status
quo by allowing local courts to set their own policies
concerning phones, (b) requiring that local courts pro-
vide lockers or similar storage facilities for phones if
their rules did not allow phones in courtrooms, (c)
allowing jurors or other persons with specifically de-
fined needs to bring phones into courtrooms, (d) estab-
lishing procedures by which persons could request
special permission to bring a phone into a courtroom,
(e) requiring that self-represented litigants be placed
on an equal footing with attorneys in their ability to
use phones in courtrooms, and (f) allowing all persons
to bring phones into courtrooms. While I could support
cxcii 505 MICHIGAN REPORTS

any of the first five options, I respectfully dissent from

the Court’s selection of the final option. Such a rule—
allowing phones in courtrooms, and during virtually
all judicial proceedings—raises at least the following
concerns.
First, it is not apparent that a “one-size-fits-all”
approach best addresses the diverse role and character
of courtrooms, and the distinctive configurations of
courthouses, across this state. Allowing phones in a
courtroom in a small county courthouse may pose
relatively few problems, as there may only be a small
number of attendees during proceedings and many
may be known to the presiding judge or court staff.
However, courtrooms serving significantly larger popu-
lations, which may host busy and crowded motion
hearings and have limited security staffs, are likely to
face significantly greater challenges in regulating per-
missible and impermissible uses of phones set forth in
the newly amended court rule. Additionally, while
allowing phones in courtrooms during a pretrial civil
hearing may raise only modest concerns, allowing
phones in courtrooms during a criminal trial may raise
considerably greater concerns, many of which would
outweigh the “convenience benefits” to individual
phone users. Given that local judges are obviously
most attuned to the needs and circumstances of their
communities and courtrooms, and given that it ulti-
mately falls on them to ensure the integrity of proceed-
ings within their courtrooms, local judges should con-
tinue to possess the authority and flexibility to
regulate phone usage in these venues. The Michigan
Probate Judges Association and the Michigan District
Judges Association have understandably raised this
same point.
 MICHIGAN RULE CHANGES cxciii

Second, courtrooms are home to solemn proceed-

ings demanding the fullest attention of participants in
these proceedings. Allowing individuals in courtrooms
to casually browse the internet, to text, or to play
games, may introduce distractions into these proceed-
ings or compromise the necessarily formal and focused
atmosphere of the courtroom. Nor should judges and
court staff periodically be required to divert their
attention from matters at hand in order to maintain a
watchful eye for phone misuse by any one of the many
spectators. Even more particularly, jurors and wit-
nesses, who may not be altogether comfortable in their
assigned roles, should not have to keep an apprehen-
sive eye out for surreptitious or inappropriate picture-
taking or out-of-court communications.
Third, aside from the inevitable and distracting
beeps, buzzes, and personalized ringtones coming from
unsilenced phones, allowing phones in the courtroom
risks undermining the orderliness and propriety of the
judicial process, the integrity of which must be of the
highest priority. Doubtlessly, this risk will be of a
greater or lesser character as the case may be, but in
light of the gravity of what is taking place, there should
be no such risk at all. Just as a courtroom in which a
criminal trial is taking place, for example, is not a
place for conversation, for headphones, for political
paraphernalia, or for signs or messages or buttons
expressing attitudes on issues being litigated, it is also
not a “place” or a “time” for all other forms of conduct
that might be entirely proper under different circum-
stances.
And for this Court in the exercise of its superintend-
ing authority, the maintenance and preservation of the
sanctity of the courtroom, and the process occurring
therein, ought to be of paramount consideration, not
cxciv 505 MICHIGAN REPORTS

the facilitation of access to what is a mere individual

convenience that, in instances in which convenience
rises to necessity, can be specifically and reasonably
accommodated by the trial court. Simply put, however,
when persons in the courtroom may use phones in the
full range of their contemporary functions, there is
simply no practical means by which photographs can
be prevented from being taken, especially photographs
unnecessarily imposing upon the privacy or security
interests of witnesses and jurors. See, e.g., State of
Illinois, Circuit Court of Cook County, Cell Phone &
Electronic Communication Device Ban <http://www.
cookcountycourt.org/HOME/CellPhoneElectronicDevice
Ban.aspx> (select “Why is a ban necessary?”) (accessed
January 2, 2020), quoting Cook Circuit Court Chief
Judge Timothy C. Evans (“ ‘Of course the judges and I
understand the ban presents an inconvenience for the
public. I wish it were possible to just say to the people
coming to court, “Please turn off your phones and
devices.” The simple fact is we have tried that, and it
does not work. People either ignore or refuse to comply
with the judges’ directions; and the Sheriff’s staff has
confirmed that their deputies cannot prevent the
misuse of these devices in the courtrooms.’ ”) [https:
//perma.cc/9XSU-SNM7]. These photographs may then
be used to gain information about witnesses and jurors
in order to intimidate, compromise, or embarrass these
persons, undermining in the process an entire justice
system that is so dependent upon the cooperation and
compliance of countless numbers of persons who would
just as soon be elsewhere than in the courtroom.
Indeed, the misuse of phones specifically contributed to
the country’s second most-populated county—Cook
County, Illinois, home to Chicago—restoring a ban on
phones in courthouses where criminal matters are
heard. Brobst, The Modern Penny Dreadful: Public
 MICHIGAN RULE CHANGES cxcv

Prosecution and the Need for Litigation Privacy in a

Digital Age, 96 Neb L Rev 281, 304-305 (2017).
Moreover, members of the public simply cannot as a
practical matter be entirely precluded from surrepti-
tiously recording judicial proceedings, and one need
look no further than the public comments to recognize
that some proponents specifically intend this result,
the recording of judicial proceedings of personal con-
cern or interest. While some of these recordings may
well shed useful light upon the judicial process, they
are also susceptible to distortion and manipulation, a
concern also raised by the Michigan District Judges
Association.
Allowing texting from within the courtroom also
risks the potential compromise of trial testimony itself
as reflected by the incidence of persons in courtrooms
who have texted information about evidence to wit-
nesses sequestered outside the courtroom. See id.; see
also Sellers, The Circus Comes to Town: The Media and
High-Profile Trials, 71 Law & Contemp Probs 181, 192
(Autumn 2008) (recounting an instance in Detroit
where sequestered witness in murder trial received
texts from persons in the courtroom concerning the
testimony of other witnesses). In short, the sanctity
and security of our courtrooms have been preserved
over the years in a variety of ways, while ensuring the
fullest access by the media and the public to these
places. There are good and legitimate reasons for why
restrictions on even “nonsmartphones” have persisted
in American courtrooms, as well as for why jurors and
witnesses and others should not be discomfited or
made uneasy by even the risk that abuse of a phone
will occur in the courtroom. To restate, it is this
concern—ensuring the integrity and single-minded fo-
cxcvi 505 MICHIGAN REPORTS

cus and orderliness of the judicial process—that ought

to be understood by this Court as its dominant consid-
eration in reflecting upon the availability of phones in
the courtroom. See, e.g., Cell Phone & Electronic Com-
munication Device Ban, quoting Cook Circuit Chief
Judge Evans (“ ‘It always must be remembered that a
criminal case is a serious, solemn proceeding. A defen-
dant’s liberty, or even life, is at stake. Often victims of
crimes are in court. There should be no interruption of
testimony by ringing phones and no texting of testi-
mony to witnesses waiting to testify. Most important,
no juror or witness should ever be afraid because a
defendant’s supporters are taking their pictures.’ ”).
Not until we are assured that the changes we adopt
can proceed without eroding our present process, and
without interfering with prerogatives best belonging to
trial courts, should we engage as we so casually do
today with the instant experiment.
In adopting a rule that allows phones in the court-
room, this Court gives greater regard to a modest
increase in personal convenience than to the tradi-
tional sanctity of the courtroom and the security of
jurors and witnesses. In pursuing this course, we also
give inadequate consideration and deference to the
opinions and concerns of the judges of this state who
will be on the front lines of confronting the problems
associated with these phones and who will be held
responsible for enforcing what many of them recognize
to be a practically unenforceable rule. I dissent and
would adopt a considerably more measured rule.
 MICHIGAN RULE CHANGES cxcvii

Adopted March 4, 2020, effective May 1, 2020 (File No. 2018-02)—

REPORTER.

On order of the Court, notice of the proposed

changes and an opportunity for comment in writing
and at a public hearing having been provided, and
consideration having been given to the comments re-
ceived, the following amendment of Rule 3.501 of the
Michigan Court Rules is adopted, effective May 1,
2020.

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 3.501. CLASS ACTIONS.

(A)-(C) [Unchanged.]
(D) Judgment.
(1)-(5) [Unchanged.]
(6) Residual Funds.
(a) “Residual Funds” are funds that remain after
the payment of approved class member claims, ex-
penses, litigation costs, attorney’s fees, and other
court-approved disbursements made to implement the
relief granted in the judgment approving a proposed
settlement of a class action.
(b) Nothing in this rule is intended to limit the
parties to a class action from proposing a settlement, or
the court from entering a judgment approving a settle-
ment, that does not create Residual Funds.
cxcviii 505 MICHIGAN REPORTS

(c) Any judgment approving a proposed settlement

of a class action certified under this rule that may
result in the existence of Residual Funds shall provide
for the disbursement of any such Residual Funds upon
the stipulation of the parties and subject to the ap-
proval of the court. In matters where the claims
process has been exhausted and Residual Funds re-
main, unless the judgment provides otherwise, the
Residual Funds shall be disbursed to the Michigan
State Bar Foundation to support activities and pro-
grams that promote access to the civil justice system
for low income residents of Michigan.
(E)-(I) [Unchanged.]
Staff Comment: The amendment of MCR 3.501 establishes proce-
dures for residual funds by adding a definition, clarifying that a
settlement need not create residual funds, that a proposed settlement
order provide for the disbursement of residual funds, and requiring that
all unclaimed class action funds be disbursed to the Michigan State Bar
Foundation to support activities and programs that promote access to
the civil justice system for low income residents of Michigan. The
amendment applies the new language to situations in which the court
approves a proposed settlement.
The staff comment is not an authoritative construction by the
Court. In addition, adoption of an amendment in no way reflects a
substantive determination by this Court.

MARKMAN, J. (dissenting). Today, the Court

amends MCR 3.501 by adding a provision addressing
the disbursement of unclaimed class action settlement
funds. In short, the amendment provides that, if the
parties to a class action settlement do not themselves
provide for the disbursement of unclaimed funds, the
trial court shall disburse the full amount of the un-
claimed funds to the Michigan State Bar Foundation.
Although the amendment represents a considerable
improvement over the language originally published
for comment by divesting trial courts of discretion
 MICHIGAN RULE CHANGES cxcix

concerning how to disburse unclaimed funds, the fol-

lowing reasons nonetheless impel me to dissent.
First, in adjudicating class actions, courts must
assume the singular supervisory role of protecting the
interests of unidentified and anonymous class mem-
bers who will never come before the court. See MCR
3.501(A)(2), (B)(3), and (C)(3). In this regard, class
action practice has been subject to much scrutiny, with
“one of the most heavily criticized class action abuses
[being] the use of class action settlements to generate
huge fees for lawyers and little or nothing for the
allegedly injured [class members].” Beisner, Shors, &
Miller, Class Action “Cops”: Public Servants or Private
Entrepreneurs?, 57 Stan L Rev 1441, 1445 (2005). This
Court must, in this regard, employ a carefully mea-
sured and disciplined approach to amending court
rules governing class actions, particularly where such
amendments affect the disbursement of funds that are
(a) specifically intended for class members, and (b)
specifically predicated upon economic losses incurred
by those same class members. At the time these
amendments were initially published, I raised a num-
ber of inquiries for public comment. Common threads
in those inquiries included: (a) whether the judicial
disbursement of funds to nonparties is a fundamen-
tally “legislative” exercise, the judicial definition and
administration of which is an inappropriate object of
our state’s judicial power; and (b) whether specifically
this Court’s adoption of a cy pres procedure in which
unclaimed funds will be disbursed to a charitable
organization will lend an appearance problem to the
trial court’s disinterested review of a settlement likely
to result in substantial amounts of unclaimed funds
going to such an organization. In particular, concern-
ing (b), even where there is no conflict of interest, or
even an appearance of conflict, on the part of the trial
cc 505 MICHIGAN REPORTS

court, will subtle disincentives arise to identifying

difficult-to-locate class members by what may be per-
ceived as the “greater” or “higher” charitable or phil-
anthropic interest? Similarly, will some larger busi-
ness defendants come to be similarly disincentivized as
a result of the perception that substantial cy pres
payments constitute a preferable “public relations”
alternative to lesser payments being paid to a larger
number of difficult-to-locate class members? The pur-
pose of the civil justice process is to resolve disputes
and to provide remedies for harms suffered, not to
facilitate philanthropic and public-interest financial
contributions.
Second, while some may view the instant amend-
ment as generally maintaining the status quo, I do not
share this view. By establishing an explicit procedure
for the disbursement of unclaimed class action funds,
the present amendment formalizes, and institutional-
izes, this Court’s approval of cy pres practice. Absent
this amendment, the disbursement of such funds to
nonparties was but one of four options available to trial
courts. See 4 Newberg, Class Actions (5th ed), § 12:28,
p 210 (identifying four options for disbursing un-
claimed funds: reversion to the defendant; pro rata
disbursement to class members who filed claims; es-
cheat to the government, and cy pres awards); see also
Wilson v Southwest Airlines, Inc, 880 F2d 807, 813 (CA
5, 1989) (concluding that the defendants themselves
have a strong equitable argument for the return of
unclaimed funds); Gerken v Sherman, 484 SW3d 95,
105 (Mo Ct App, 2015) (“When courts are faced with
distributing unclaimed funds from a class action, they
have four options: a pro rata distribution to the class
members who have already made claims; escheat to
the government; reversion to the defendant; or cy pres
distribution.”); In re Motorsports Merchandise Anti-
 MICHIGAN RULE CHANGES cci

trust Litigation, 160 F Supp 2d 1392, 1393-1394 (ND

Ga, 2001) (identifying the same four options). By
limiting the trial court’s range of options for disbursing
unclaimed funds, as this Court has now done in the
exercise of an quasi-legislative exercise of power, we
effectively select “winners and losers” from among a
large number of possible beneficiaries of unclaimed
funds. And the amendment’s preclusion of the trial
court’s authority to order the reversion of unclaimed
funds to the defendant itself is especially troubling, in
particular where the class action defendant is a politi-
cal subdivision of the state. In such a circumstance,
unclaimed class action funds may alternatively be
characterized as “taxpayer funds,” more fairly re-
turned to the taxpayers themselves than disbursed to
the State Bar Foundation, regardless of how exem-
plary and estimable the work of the Foundation may
be. Indeed, in such circumstances, it might further be
presumed that a large number of such taxpayers were
also among the class action members to whom eco-
nomic harm had been done and who were thus directly
entitled to such funds. No matter, as we specifically
declined, as the city of Detroit proposed, even to
exempt from the present amendment class action
awards against political subdivisions.
Third, for the above reasons, how a court should
disburse unclaimed funds is a matter that affects the
substantive rights of litigants—to what are they en-
titled as a matter of public policy? Thus, how this
judiciary should disburse unclaimed funds is a matter
properly left to the Legislature and does not, in my
judgment, constitute a proper aspect of the “judicial
power—the power to resolve certain types of cases and
controversies and the only power belonging to the
judiciary under either the Michigan or the United
States Constitution. See also Goodlander, Cy Pres
ccii 505 MICHIGAN REPORTS

Settlements: Problems Associated with the Judiciary’s

Role and Suggested Solutions, 56 BC L Rev 733, 757
(2015) (“Another way to shield judges from the poten-
tial for appearances of impropriety inherent in an
unstructured cy pres distribution framework could
originate in the legislative branch.”). Legislatures in
other states have enacted statutes governing the dis-
bursement of unclaimed funds. See, e.g., Wis Stat
803.08(10) (2017); Neb Rev Stat 25-319.01 (2014); 735
Ill Comp Stat 5/2-807 (2008); SD Codified Laws 16-2-57
(2008); NC Gen Stat 1-267.10 (2005). In contrast, this
Court now: (a) enacts the entirety of state public policy
governing the disbursement of unclaimed funds, (b)
expressly ratifies class action settlements likely to
result in unclaimed funds, and (c) affirmatively and
explicitly approves the disbursal of unclaimed funds.
By doing these things, we discourage legislative action,
and we do so at an especially inapt time. Given the
national attention cy pres practice in the class action
context has recently received, it seems a particularly
poor moment at which to diminish the Legislature’s
incentives to act on their own. See, e.g., Marek v Lane,
571 US 1003, 1006 (2013) (statement of Roberts, C.J.,
respecting denial of certiorari) (identifying “fundamen-
tal concerns” with cy pres practice and suggesting need
to “clarify the limits” of the practice); see also Frank v
Gaos, 586 US ___, ___; 139 S Ct 1041, 1047-1048 (2019)
(Thomas, J., dissenting) (questioning fairness of class
settlements when a majority of funds are disbursed via
cy pres and suggesting attorney-fee awards should be
decreased because cy pres disbursements do not pro-
vide relief to class members); Klier v Elf Atochem
North America, Inc, 658 F3d 468, 481-482 (CA 5, 2011)
(Jones, C.J., concurring) (noting perception of impro-
priety often attached to cy pres disbursements and
concluding that “[o]ur adversarial system should not
 MICHIGAN RULE CHANGES cciii

effectuate transfers of funds from defendants beyond

what they owe to the parties in judgments or settle-
ments”). It would have been far better for this Court to
have surveyed the cy pres experiences of other juris-
dictions at this time of flux and debate.
Finally, not only are courts constitutional institu-
tions designed principally to adjudicate cases and
controversies between parties and to afford relief to
aggrieved parties, but lawyers, as custodians of our
justice system, must also carry out their responsibili-
ties within the context of that system. In particular,
they are governed by rules of ethics and professional
standards of conduct to pursue cases on behalf of their
clients, and not on behalf of charitable, philanthropic,
or public-interest organizations, however admirable
the purposes of such organizations may be. See MRPC
1.7(b). But settlements resulting in large cy pres dis-
bursements may well transform these basic ground
rules. The attorney for plaintiffs in a class action
represents the class as a whole, including difficult-to-
locate class members. However, once a court approves
a class action settlement and the attorney’s fees have
been set, there remains little incentive for attorneys on
either side to expend significant additional resources
and efforts reaching difficult-to-locate class members.
This is particularly true where: (a) the unclaimed
funds are designated for distribution to an
organization—the State Bar Foundation—that most in
the legal profession would view as a worthy recipient,
and (b) in some situations, the attorney for the plain-
tiffs’ class may hope later to persuade the Foundation
to distribute monies to a legal organization that rep-
resents class litigants. As a result, one must ask
whether the cy pres process adopted here introduces a
cciv 505 MICHIGAN REPORTS

strain, or a tension, affecting plaintiffs’ attorney’s

ability to act with undivided loyalty on behalf of the
clients’ interests.
For these reasons, I respectfully dissent from this
Court’s adoption of the present amendments to MCR
3.501 and further encourage the Legislature to con-
sider how, in its own judgment, these matters should
best be addressed.

Adopted March 4, 2020, effective May 1, 2020 (File No. 2018-23)—

REPORTER.

On order of the Court, notice of the proposed

changes and an opportunity for comment in writing
and at a public hearing having been provided, and
consideration having been given to the comments re-
ceived, the following amendment of Rule 6.610 of the
Michigan Court Rules is adopted, effective May 1,
2020.

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 6.610. CRIMINAL PROCEDURE GENERALLY.

(A)-(D) [Unchanged.]
(E) Discovery in Misdemeanor Proceedings.
(1) The provisions of MCR 6.201, except for MCR
6.201(A), apply in all misdemeanor proceedings.
(2) MCR 6.201(A) only applies in misdemeanor
proceedings, as set forth in this subrule, if a defendant
elects to request discovery pursuant to MCR 6.201(A).
If a defendant requests discovery pursuant to MCR
6.201(A) and the prosecuting attorney complies, then
the defendant must also comply with MCR 6.201(A).
(E)-(H) [Relettered (F)-(I) but otherwise unchanged.]
 MICHIGAN RULE CHANGES ccv

Staff Comment: The amendment of MCR 6.610 allows discovery in

misdemeanor proceedings in the district court by creating a structure
similar to the federal rules (FR Crim P 16[b]) in which a defendant’s
duty to provide certain discovery is triggered only if defense counsel first
requests discovery from the prosecution, and the prosecution complies.
The staff comment is not an authoritative construction by the Court.
In addition, adoption of an amendment in no way reflects a substantive
determination by this Court.

MCCORMACK, C.J. (concurring). The rule the Court

adopts today will promote efficiency, fairness, and
justice in our district courts. Until today there was no
required discovery in any misdemeanor cases; whether
a defendant could obtain a copy of a police report before
deciding to go to trial, for example, was left to the
discretion of the prosecutor. Now, discovery will be
available for defendants who request it, and those who
do request it will provide the same to the prosecution.
The benefits of this change are substantial. Early
information helps resolve cases more efficiently, con-
serving the resources of both the parties and the courts.1
I suspect this explains, at least in part, why many
prosecutor’s offices already provide discovery in misde-
meanor cases.2 Earlier resolution of cases means less
court time, less attorney time, and, in many cases, less
jail time and supervision time. It also will result in less
uncertainty for defendants facing prosecution, an un-
quantifiable yet meaningful benefit. Obtaining discov-
ery is key to determining whether to go to trial or

1
See The Justice Project, Expanded Discovery in Criminal Cases
(accessed January 17, 2020) [https://perma.cc/VV85-EPWB].
2
It may also explain why prosecutors supported amending the court
rules to provide discovery in misdemeanor cases. Although the Prosecut-
ing Attorneys Association of Michigan (PAAM) did not support the rule
adopted today, it did submit its own proposal, which also would have
provided pretrial discovery. And when asked at the public hearing, the
PAAM representative refused to express support for the status quo. I
thank PAAM for their proposal and for their work on this important issue.
ccvi 505 MICHIGAN REPORTS

proceed with plea negotiations. Early disclosure of the

prosecution’s evidence allows a defendant to investi-
gate, formulate a defense, and decide whether to plead
guilty without delay.3 Assuming that a criminal defen-
dant knows enough about the alleged crime to ad-
equately investigate it without discovery from the
prosecution “flies in the face of the constitutional right
to a presumption of innocence.”4 Although the misde-
meanor criminal justice system has operated in Michi-
gan for many years without a regulated discovery
process, the benefits that will flow from this new rule
are significant and overdue.
Moreover, based on testimony and comments from
representatives from the Criminal Defense Attorneys
of Michigan (CDAM) and the Prosecuting Attorneys
Association of Michigan (PAAM), the system this new
rule puts in place will not be a drastic change at all.
Rather, it seems that many prosecutors across the
state are already providing discovery to misdemeanor
criminal defendants. For example, a PAAM represen-
tative commented at the public hearing that based on
“what I have seen in my practice, it wouldn’t really
change much that we do in Genesee County.” This
sentiment was echoed by the CDAM representative,
who said that in most places where he practiced,
discovery in misdemeanor cases has been routine.
“But,” he explained, “I’m relying on a prosecutor’s
largesse. . . . In Southeast Michigan, that largesse is
more routine than not. I’m told by my colleagues in
many parts of the state it’s not so routine.”

3
This is especially important for defendants who are innocent and
may have no information at all about the offense.
4
Roberts, Too Little, Too Late: Ineffective Assistance of Counsel, the
Duty to Investigate, and Pretrial Discovery in Criminal Cases, 31
Fordham Urb L J 1097, 1102 (2004).
 MICHIGAN RULE CHANGES ccvii

This is the problem with the lack of any required

discovery: a defendant’s ability to adequately weigh
the pros and cons of accepting a plea deal or proceeding
to trial should not, in my view, depend on the particu-
lar practice of the prosecuting office handling their
case. This rule ensures that the misdemeanor discov-
ery process is uniform throughout Michigan, that
people charged with crimes in Ann Arbor and Es-
canaba get the same justice. More equal justice under
law is alone an argument in favor of its adoption.
I respectfully disagree with my dissenting colleagues’
assessment that the costs of this rule outweigh its
benefits. In my view, my colleagues undervalue the
benefits and overstate the burdens this rule will impose,
given that discovery will not be required in every
misdemeanor prosecution. The Court considered a pro-
posal that would have made disclosure mandatory,
whether the defendant wanted it or not. We declined to
adopt that rule in light of opposition from both sides of
the bar. Instead, the new rule only triggers the disclo-
sure requirements upon request from the defense.
My dissenting colleagues believe that this rule will be
costly in terms of the time and resources to prosecutors.
But for the reasons outlined above, I question the
direction the costs will go. And as most evidence—for
example, the police report—can be produced electroni-
cally and can therefore be e-mailed to the opposing
party, disclosure can be accomplished with minimal
time and effort. It is true that this new rule will require
defense attorneys to spend more time advising their
clients whether to request discovery. And when the
defendant decides that discovery is necessary, I do not
doubt that more resources will be spent analyzing the
ccviii 505 MICHIGAN REPORTS

disclosed evidence. But that information will allow

defense counsel to advocate for their clients more effi-
ciently and effectively.5
I do not agree that this rule will lead to a “more
contentious criminal justice process.” In many cases
the opposite will be true: early information will lead to
early resolution. For the subset of cases for which there
is more process, I see no reason why more information
will lead to contentiousness or more process will lead to
contentiousness. The Michigan Bar is a collegial body,
even when involved in the adversary system.
The criminal justice system, like all of the justice
system, was designed to be adversarial because an
adversarial system produces better justice. When a
defendant is armed with the tools to decide whether to
plead or face trial and require the prosecution’s case “to
survive the crucible of meaningful adversarial testing,”
United States v Cronic, 466 US 648, 656 (1984), we can
be more confident that the outcome is truly just. I see no
reason to expect or accept less justice in misdemeanor
prosecutions than felonies. Misdemeanor convictions
can expose people to fines, jail time, and serious collat-
eral consequences—some that last a lifetime.
I am puzzled that this modest rule change triggers
my dissenting colleagues’ concern about the slippery
slope of providing more process. All this rule does is
give people accused of a crime the right to basic
information possessed by the government so they can

5
As CDAM explained in its comment, “discovery in the modern age
oftentimes is just as important in misdemeanor cases as it is in felony
cases, where the trial frequency is similar.” I agree with CDAM that the
rule as adopted “strikes the proper balance between cases where the
defense may not need discovery, and it is not requested, and where the
defense believes discovery is important, and agrees to provide it recip-
rocally under the court rule.”
 MICHIGAN RULE CHANGES ccix

make informed decisions about how to proceed. This is

especially important today in light of the fact that our
criminal justice system has evolved from one based on
trials to one based on pleas in the name of efficiency.
See Neily, Our Broken Criminal Justice System,
41 Cato Pol Rep 7, 8 (May/June 2019), available
at <https://www.cato.org/sites/cato.org/files/serials/files/
policy-report/2019/6/cpr-v41n3-1.pdf> (accessed Feb-
ruary 6, 2020) [https://perma.cc/L88Q-CXU8] (“[P]lea
bargaining arose in response to the need to process a
rapidly increasing number of criminal defendants
through a system that was consciously designed to
promote fairness and transparency rather than mere
efficiency.”) If the Founders beamed into any criminal
courtroom in America, they would not recognize the
criminal justice system; the least we can do is make
that system of pleas one that is slightly more fair.
Criminal procedure is not just a balance of dollars
and cents. After all, it would be more efficient to do
away with pleas and trials too, and instead send all
accused persons straight to sentencing. Due process,
fairness, and, maybe most of all, public confidence in
the criminal justice system are difficult to quantify.
But they are worth a whole lot.
VIVIANO, J., joins the statement of MCCORMACK, C.J.
MARKMAN, J. (dissenting). The majority here adopts
an amendment to our court rules that grants a right to
discovery to misdemeanor defendants equivalent to
that of felony defendants (although with fewer obliga-
tions on the part of the former). This amendment will
affect an estimated 490,000 criminal defendants in
Michigan each year. While I have no quarrel with the
good intentions of my colleagues in the majority, I do
respectfully take issue with the Court’s assessment of
ccx 505 MICHIGAN REPORTS

the costs and benefits of this proposal, an assessment

that necessarily lies at the heart of all prudent public
decision-making.
Concerning its costs, the following seem quite certain:
the proposal will be costly both in terms of private legal
expenses and public spending; it will lead to a lengthier
and more contentious criminal justice process; it will
produce more procedural disputes and hence more ap-
peals; it will impose greater obligations upon defense
counsel and lead to more claims of ineffective assistance
of counsel; it will result in growing burdens upon the
state judiciary and thus a need for greater judicial
resources; it will produce countless additional numbers
of pleadings and hearings and motions and reconsidera-
tions; and it will divert prosecutorial resources and
effort from criminal cases of the highest priority. Yet
concerning its benefits, these seem considerably more
vague: no compelling case has been made for why this
change, described as “drastic” by the state prosecutor
association, should be adopted today after 180 years of
experience in Michigan with a more informal and re-
laxed misdemeanor discovery process; no compelling
case has been made for why the present case-by-case
treatment of misdemeanors—in which accommodations
are readily and routinely made by prosecutors, trial
courts, and defense counsel—has not sufficed to ensure
due process and fairness for defendants; and no testi-
mony or public comments have identified an instance or
illustration in which a real prosecutor or a real judge
has refused to provide a real misdemeanor defendant
information necessary for trial.
In other words, the costs of the present proposal are
clear and straightforward—there will be “more” of a
great many things as to which “more” is hurtful to the
justice system—while the benefits of the proposal are
 MICHIGAN RULE CHANGES ccxi

nebulous and uncertain, in particular concerning the

single “more” proposition most compelling in its sup-
port: will it secure “more” fairness and justice under
law? While good intentions certainly commend this
proposal, an estimation of its real-world impact, as
well as its practical dislocations, does not. It is a
“drastic” and unsettling solution in search of a prob-
lem. It is the replacement in our state of a customary
and traditional process by which generations of per-
sons of good will and professionalism have labored,
successfully, to secure justice for generations of misde-
meanor defendants, many of them unrepresented, with
a panoply of new rules, procedures, rights, entitle-
ments, and formalisms, which, if ever equivalently
successful, will have done so at a considerably greater
expense. Ours is an exercise in which the judgments of
all past generations of bench and bar in Michigan,
none any less committed to fair treatment for misde-
meanor defendants, will have been supplanted.
In response to the concurring statement, I offer the
following:
(1) My colleagues assert that I am “overstat[ing] the
burdens this rule will impose”—that “[a]ll this rule
does is give people accused of a crime the right to basic
information . . . .” However, I remain comfortable in
the conclusion that establishing new rights and en-
titlements and procedures for as many as half a million
criminal cases each year in Michigan will affect sub-
stantially the budgets and resources of prosecutors,
law enforcement agencies, legal services providers,
court clerks, and the judiciary itself, throughout our
state. Indeed, even before final enactment, the State
Bar has “urge[d] additional funding to help prosecutors
meet their new responsibilities,” and the Criminal De-
fense Attorneys of Michigan have asserted that an
ccxii 505 MICHIGAN REPORTS

increased financial burden is “inescapable.” All of which

alone suggest why the new rule would be far better
considered by the legislative branch, which might be
inclined and equipped to give greater consideration to
both the benefits and the burdens of the new rule.
(2) My colleagues, while asserting that I “undervalue
the benefits” of the new rule, state further that it “will
not be a drastic change at all,” that “many prosecutors
across the state are already providing [such] discovery,”
that the system of pleas will become “slightly more fair,”
and that, in the words of one prosecutor, “it wouldn’t
really change much that we do . . . .” If all this is so, why
doesn’t this Court simply maintain the status quo of the
past 180 years and spare the taxpayers the additional
financial burdens, the prosecutors the dilution of their
resources, the criminal justice system the delays and
dislocations, and the judiciary the transformation of
their dockets?
(3) My colleagues invoke “due process” as a justifica-
tion for imposing these new burdens upon the criminal
justice system. But this is a formless and rhetorical “due
process,” lacking any context in the historical or tradi-
tional judicial practices of our state. There is no end to
such a notion of “due process,” for it is always possible to
impose additional rights and entitlements and proce-
dures upon the criminal justice system. And there is no
end to the argument that “due process” requires some-
thing “more,” particularly when “due process” is re-
moved from the realm of “costs and benefits” and the
need to balance competing considerations. While my
colleagues are correct in the assertion that criminal
procedure cannot be dictated entirely on the “balance of
dollars and cents,” it also cannot be dictated entirely on
the basis of “due process,” for there is never any stop-
ping point, and never any relevant standards, for when
 MICHIGAN RULE CHANGES ccxiii

more process is “due” when this principle is fashioned

out of whole cloth. There is always “more” process that
can be given, and “more” procedure that can be at-
tached, yet neither offers “more” guarantee of justice
under law.
(4) And finally, just to make clear if it is not already,
the Prosecuting Attorneys Association of Michigan
does not support this proposal and has testified against
it in the administrative processes of this Court.
I respectfully dissent.
ZAHRA, J., joins the statement of MARKMAN, J.

Adopted March 11, 2020, effective May 1, 2020 (File No. 2014-46)—
REPORTER.

On order of the Court, notice of the proposed changes

and an opportunity for comment in writing and at a
public hearing having been provided, and consideration
having been given to the comments received, the follow-
ing amendment of Rule 6.508 of the Michigan Court
Rules is adopted, effective May 1, 2020.

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 6.508. PROCEDURE; EVIDENTIARY HEARING; DETERMI-

NATION.
(A)-(C) [Unchanged.]
(D) Entitlement to Relief. The defendant has the
burden of establishing entitlement to the relief re-
quested. The court may not grant relief to the defen-
dant if the motion
(1) [Unchanged.]
(2) alleges grounds for relief which were decided
against the defendant in a prior appeal or proceeding
ccxiv 505 MICHIGAN REPORTS

under this subchapter, unless the defendant estab-

lishes that a retroactive change in the law has under-
mined the prior decision; for purposes of this provision,
a court is not precluded from considering previously
decided claims in the context of a new claim for relief,
such as in determining whether new evidence would
make a different result probable on retrial, or if the
previously decided claims, when considered together
with the new claim for relief, create a significant
possibility of actual innocence;
(3) [Unchanged.]
(E) [Unchanged.]
Staff Comment: The amendment of MCR 6.508 allows a court to
consider previously decided claims in the context of a new claim for
relief, consistent with footnote 17 in People v Johnson, 502 Mich 541
(2018) or where such previously decided claims (in conjunction with a
new claim) create a significant possibility of actual innocence.
The staff comment is not an authoritative construction by the Court.
In addition, adoption of an amendment in no way reflects a substantive
determination by this Court.

Adopted March 11, 2020, effective May 1, 2020 (File No. 2018-24)—
REPORTER.

On order of the Court, notice of the proposed

changes and an opportunity for comment in writing
and at a public hearing having been provided, and
consideration having been given to the comments re-
ceived, the following amendment of Rule 8.301 of the
Michigan Court Rules is adopted, effective May 1,
2020.

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 8.301. POWERS OF REGISTER OF PROBATE, DEPUTY

REGISTERS, AND CLERKS.
 MICHIGAN RULE CHANGES ccxv

(A) [Unchanged.]
(B) Entry of Order Specifying Authority.
(1) To the extent authorized by the chief judge of a
probate court by a general order, the probate register,
and the deputy probate register, the clerks of the pro-
bate court, and other court employees designated in the
order, have the authority, until the further order of the
court, to do all acts required of the probate judge except
judicial acts in a contested matter and acts forbidden by
law to be performed by the probate register.
(2) [Unchanged.]
(C) [Unchanged.]
Staff comment: The amendment of MCR 8.301 makes the rule
consistent with the statute (MCL 600.834) allowing only the probate
registers and deputy probate registers to perform certain administrative
tasks that would otherwise be performed by the probate judge.
The staff comment is not an authoritative construction by the
Court. In addition, adoption of an amendment in no way reflects a
substantive determination by this Court.

Adopted March 11, 2020, effective May 1, 2020 (File No. 2018-34)—
REPORTER.

On order of the Court, notice of the proposed changes

and an opportunity for comment in writing and at a
public hearing having been provided, and consideration
having been given to the comments received, the follow-
ing amendment of Rule 6.425 of the Michigan Court
Rules is adopted, effective May 1, 2020.

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 6.425. SENTENCING; APPOINTMENT OF APPELLATE

COUNSEL.
(A)-(F) [Unchanged.]
ccxvi 505 MICHIGAN REPORTS

(G) Appointment of Lawyer and Preparation of

Transcript; Scope of Appellate Lawyer’s Responsibili-
ties.
(1) Appointment of Lawyer and Preparation of
Transcript.
(a)-(c) [Unchanged.]
(d) Within 7 days after receiving a proposed order
from MAACS, the trial court must rule on the request
for a lawyer. If the defendant is indigent, the court
must enter an order appointing a lawyer if the request
for a lawyer is filed within 42 days after entry of the
judgment of sentence or, if applicable, within the time
for filing an appeal of right. The court should liberally
grant an untimely request as long as the defendant
may file an application for leave to appeal. An order
denying a request for the appointment of appellate
counselA denial of counsel must include a statement of
reasons and must inform the defendant that the order
denying the request may be appealed by filing an
application for leave to appeal in the Court of Appeals
in accordance with MCR 7.205.
(e)-(g) [Unchanged.]
(2) [Unchanged.]
Staff Comment: The amendment of MCR 6.425 clarifies that criminal
defendants whose request for counsel due to indigency are denied are
entitled to appeal that denial.
The staff comment is not an authoritative construction by the
Court. In addition, adoption of an amendment in no way reflects a
substantive determination by this Court.

Adopted March 11, 2020, effective May 1, 2020 (File No. 2018-35)—
REPORTER.

On order of the Court, notice of the proposed changes

and an opportunity for comment in writing and at a
public hearing having been provided, and consideration
having been given to the comments received, the follow-
 MICHIGAN RULE CHANGES ccxvii

ing amendment of Rule 8.108 of the Michigan Court

Rules is adopted, effective May 1, 2020.

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 8.108. COURT REPORTERS AND RECORDERS.

(A)-(D) [Unchanged.]
(E) PreparingFurnishing Transcript. The court re-
porter or recorder shall preparefurnish without delay,
in legible English, a transcript of the records taken by
him or her (or any part thereof):
(1) to any party on request. The reporter or re-
corder is entitled to receive the compensation pre-
scribed in the statute on fees from the person who
makes the request.
(2) on order of the trial court. The court may order
the transcript prepared without expense to either party.
Except when otherwise provided by contract, the court
reporter or recorder shall receive from the appropriate
governmental unit the compensation specified in the
statute on fees for a transcript ordered by a court.
(F) Filing Transcript.
(1) After preparing a transcript upon request of a
party or interested person to a case or Oon order of the
trial court, the court reporter or recorder shall
promptly file themake and file in the clerk’s office a
transcript of the proceedingshis or her records, in
legible English, of any civil or criminal case (or any
part thereof) without expense to either party; the
transcript is a part of the records in the case.
(2) After an official transcript is filed, copies shall
be made only from the official transcript filed with the
courtExcept when otherwise provided by contract, the
ccxviii 505 MICHIGAN REPORTS

court reporter or recorder shall receive from the appro-

priate governmental unit the compensation specified in
the statute on fees for a transcript ordered by a court.
(G) [Unchanged.]
Staff comment: The amendment of MCR 8.108 clarifies the rule
regarding preparation and filing of transcripts including that a court
reporter or court recorder shall file their transcripts with a court when
produced for a party or for the court.
The staff comment is not an authoritative construction by the
Court. In addition, adoption of an amendment in no way reflects a
substantive determination by this Court.

Adopted March 11, 2020, effective immediately (File No. 2019-12)—

REPORTER.

By order dated September 11, 2019, this Court

amended Rules 1.109, 3.206, 3.931, and 3.961 of the
Michigan Court Rules, effective immediately. At the
same time, the Court stated that it would consider at a
future public hearing whether to retain the amend-
ments. Notice and an opportunity for comment having
been provided, these amendments are retained with
the following additional amendments.

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 3.206. INITIATING A CASE.

(A) Information in Case Initiating Document.
(1)-(2) [Unchanged.]
(3) When any pending or resolved family division
or tribal court case exists that involves family mem-
bers of the person(s) named in the case initiation
document filed under subrule (2), the filing party must
complete and file a case inventory listing those cases, if
known. The case inventory is confidential, not subject
 MICHIGAN RULE CHANGES ccxix

to service requirements in MCR 3.203, and is available

only to the party that filed it, the filing party’s attorney,
the court, and the friend of the court. The case inven-
tory must be on a form approved by the State Court
Administrative Office. This does not apply to outgoing
requests to other states and incoming registration
actions filed under the Revised Uniform Reciprocal
Enforcement of Support Act, MCL 780.151 et seq. and
the Uniform Interstate Family Support Act, MCL
552.2101 et seq.
(4)-(6) [Unchanged.]
(B)-(D) [Unchanged.]

RULE 3.931. INITIATING DELINQUENCY PROCEEDINGS.

(A) Commencement of Proceeding. Any request for
court action against a juvenile must be by written
petition. The form, captioning, signing, and verifying of
documents are prescribed in MCR 1.109(D) and (E).
When any pending or resolved family division or tribal
court case exists that involves family members of the
person(s) named in the petition filed under subrule (B),
the petitioner must complete and file a case inventory
listing those cases, if known. The case inventory is
confidential, not subject to service requirements in
MCR 3.203, and is available only to the party that filed
it, the filing party’s attorney, the court, and the friend
of the court. The case inventory must be on a form
approved by the State Court Administrative Office.
(B)-(D) [Unchanged.]

RULE 3.961. INITIATING CHILD PROTECTIVE PROCEEDINGS.

(A) Form. Absent exigent circumstances, a request
for court action to protect a child must be in the form of
a petition. The form, captioning, signing, and verifying
of documents are prescribed in MCR 1.109(D) and (E).
ccxx 505 MICHIGAN REPORTS

When any pending or resolved family division or tribal

court case exists that involves family members of the
person(s) named in the petition filed under subrule (B),
the petitioner must complete and file a case inventory
listing those cases, if known. The case inventory is
confidential, not subject to service requirements in
MCR 3.203, and is available only to the party that filed
it, the filing party’s attorney, the court, and the friend
of the court. The case inventory must be on a form
approved by the State Court Administrative Office.
(B)-(C) [Unchanged.]
Staff Comment: The amendments of MCR 3.206, 3.931, and 3.961
previously adopted by order dated September 11, 2019, are retained;
further amendments are included in this order to also add tribal cases
to the description of other cases that must be listed on the inventory
form, if known.
The staff comment is not an authoritative construction by the
Court. In addition, adoption of an amendment in no way reflects a
substantive determination by this Court.

Adopted March 19, 2020, effective immediately (File No. 2015-21)—

REPORTER.

On order of the Court, the following amendments of

Rules 3.971, 3.972, 3.973, and 3.974 of the Michigan
Court Rules are adopted, effective immediately.

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 3.971. PLEAS OF ADMISSION OR NO CONTEST.

(A) [Unchanged.]
(B) Advice of Rights and Possible Disposition. Be-
fore accepting a plea of admission or plea of no contest,
the court must advise the respondent on the record or
in a writing that is made a part of the file:
 MICHIGAN RULE CHANGES ccxxi

(1)-(5) [Unchanged.]
(6) that appellate review is available to challenge
any errors in the adjudicatory process, which may be
challenged in an appeal from the court’s initial order of
dispositiona court’s initial order of disposition follow-
ing adjudication, and such a challenge can include any
issues leading to the disposition, including any errors
in the adjudicatory process;
(7) that an indigent respondent is entitled to ap-
pointment of an attorney to represent the respondent
on any appeal as of rightof the initial dispositional
order and to preparation of relevant transcripts; and
(8) [Unchanged.]
(C) Right to Appellate Review. The respondent
may challenge the assumption of jurisdiction in an
appeal from the order terminating respondent’s paren-
tal rights if the respondent’s parental rights are termi-
nated at the initial dispositional hearing pursuant to
MCR 3.977(E). In addition, tThe respondent may chal-
lenge the assumption of jurisdiction in an appeal from
the order terminating respondent’s parental rights if
the court fails to properly advise the respondent of
their right to appeal pursuant to subrule (B)(6)-(8).
(D) [Unchanged.]

RULE 3.972. TRIAL.

(A)-(E) [Unchanged.]
(F) Respondent’s Rights Following Trial and Pos-
sible Disposition. If the trial results in a verdict that
one or more statutory grounds for jurisdiction has been
proven, the court shall advise the respondent orally or
in writing that:
(1) appellate review is available to challenge any
errors in the adjudicatory process, which may be chal-
ccxxii 505 MICHIGAN REPORTS

lenged in an appeal from the court’sa court’s assump-

tion of jurisdiction in an appeal of the initial order of
disposition,
(2) that an indigent respondent is entitled to ap-
pointment of an attorney to represent the respondent
on any appeal as of right and to preparation of relevant
transcripts, and
(3) [Unchanged.]
(G) Right to Appellate Review. The respondent
may challenge the assumption of jurisdiction in an
appeal from the order terminating respondent’s paren-
tal rights if the respondent’s parental rights are termi-
nated at the initial dispositional hearing pursuant to
MCR 3.977(E). In addition, tThe respondent may chal-
lenge the assumption of jurisdiction in an appeal from
the order terminating respondent’s parental rights if
the court fails to properly advise the respondent of
their right to appeal pursuant to subrule (F)(1)-(3).

RULE 3.973. DISPOSITIONAL HEARING.

(A)-(F) [Unchanged.]
(G) Respondent’s Rights Upon Entry of Disposi-
tional Order. When the court enters an initial order of
disposition following adjudication the court shall ad-
vise the respondent orally or in writing:
(1) that at any time while the court retains juris-
diction over the minor, the respondent may challenge
the continuing exercise of that jurisdiction by filing a
motion for rehearing, under MCL 712A.21 or MCR
3.992, or by filing an application for leave to appeal
with the Michigan Court of Appeals,
 MICHIGAN RULE CHANGES ccxxiii

(2) that appellate review is available to challenge

the court’sboth an initial order of disposition following
adjudication and any order removing a child from a
parent’s care and custody,
(3) that an indigent respondent is entitled to ap-
pointment of an attorney to represent the respondent
on any appeal as of right and to preparation of relevant
transcripts, and
(4) [Unchanged.]
(H)-(J) [Unchanged.]

RULE 3.974. PROCEDURES FOR CHILD AT HOME; PETITION

AUTHORIZED.
(A)-(C) [Unchanged.]
(D) Procedure Following Postadjudication Out-of-
Home Placement. If the child is in placement under
subrule (B)(2) or (C)(3)(b), the court shall proceed as
follows:
(1)-(2) [Unchanged.]
(3) The court shall advise the parent, guardian, or
legal custodian of the right to appeal the order remov-
ing the child from a parent’s care or custody.
Staff Comment: The amendments of MCR 3.971, 3.972, 3.973, and
3.974 make various clarifying changes to rules the Court adopted in
June 2019.
The staff comment is not an authoritative construction by the
Court. In addition, adoption of a new rule or amendment in no way
reflects a substantive determination by this Court.
ccxxiv 505 MICHIGAN REPORTS

Adopted June 10, 2020, effective immediately (File No. 2020-14)—

REPORTER.

On order of the Court, this is to advise that the amend-

ment of Rule 4.202 of the Michigan Court Rules is adopted,
effectively immediately, during the public comment period.
Concurrently, individuals are invited to comment on the
form or the merits of the amendment. The Court welcomes
the views of all. This matter also will be considered at a
public hearing. The notices and agendas for public hear-
ings are posted at [http://courts.mi.gov/courts/michigan
supremecourt/rules/pages/default.aspx].

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 4.202. SUMMARY PROCEEDINGS: LAND CONTRACT

FORFEITURE.
(A)-(G) [Unchanged.]
(H) Answer; Default.
(1) [Unchanged.]
(2) Default.
(a) If the defendant fails to appear, the court, on the
plaintiff’s motion, may enter a default and may hear
the plaintiff’s proofs in support of judgment. If satisfied
that the complaint is accurate, the court must enter a
default judgment under MCL 600.5741, and in accord
with subrule (J). The plaintiff must mail the default
judgment must be mailed to the defendant and file a
 MICHIGAN RULE CHANGES ccxxv

proof of service with the court. by the court clerk

andThe default judgment must inform the defendant
that (if applicable)
(i)-(ii) [Unchanged.]
(b)-(c) [Unchanged.]
(3) [Unchanged.]
(I)-(L) [Unchanged.]
Staff comment: The amendment of MCR 4.202(H) makes the rule
consistent with the requirements of MCR 4.201(F)(4) by requiring the
court clerk to mail defendant notice of entry of a default judgment. The
rule was amended previously to require plaintiff to mail a default
judgment to the defendant, unlike MCR 4.201(F)(4), which was not
amended. Having two different procedures for matters that are both
summary proceedings has caused confusion for courts. This amendment
returns the language to its previous status and makes MCR 4.201 and
MCR 4.202 consistent again.
The staff comment is not an authoritative construction by the Court.
In addition, adoption of an amendment in no way reflects a substantive
determination by this Court.
A copy of this order will be given to the Secretary of the State Bar
and to the State Court Administrator so that they can make the
notifications specified in MCR 1.201. Comments on the proposal may
be sent to the Supreme Court Clerk in writing or electronically by
October 1, 2020, at P.O. Box 30052, Lansing, MI 48909, or
[email protected]. When filing a comment, please refer to
ADM File No. 2020-14. Your comments and the comments of others will
be posted under the chapter affected by this proposal at
[http://courts.mi.gov/courts/michigansupremecourt/rules/court-rules-admin-
matters/pages/default.aspx].
SUPREME COURT CASES
 MANIACI V DIROFF 1

MANIACI v DIROFF

Docket No. 158005. Argued on application for leave to appeal October 16,
2019. Decided November 21, 2019.
In 2014, Jeffrey S. Maniaci filed an action in the Gladwin Circuit
Court against Thomas and Mandy Diroff, asserting that he had
the right to use a piece of property (Parcel B) that separated
Vonda Lane from the Tittabawassee River, also known at that
location as Secord Lake; defendants counterclaimed, arguing
that they owned Parcel B. In June 2015, plaintiff and defen-
dants entered into a consent judgment in which defendants
conveyed to plaintiff and others an easement to traverse Parcel
B; specifically, defendants conveyed the right of ingress and
egress access to and from the water’s edge of the Tittabawassee
River across Parcel B to Vonda Lane. The easement expressly
allowed the temporary mooring and launching of watercraft,
including by boat trailer, but prohibited use of the easement for
nontemporary mooring, docks, and/or wharfs. In April 2016, plain-
tiff moved to hold defendants in contempt for not complying with
the consent judgment, asserting that defendants had failed to
remove certain barriers on Parcel B; plaintiff also requested to
regrade the easement to allow a trailer to launch a boat from the
parcel. After a hearing on the issue, the court, Thomas R. Evans, J.,
denied the motion. Plaintiff sought leave to appeal the postjudg-
ment order in the Court of Appeals, and in an unpublished order
entered November 23, 2016 (Docket No. 333952), the Court denied
the application. In the interim, defendants had conveyed Parcel B
to Kenneth G. Siler and Tonya L. Siler, and in July 2016, the Silers
conveyed Parcel B to the Kenneth G. Siler and Tonya L. Siler
Revocable Trust dated April 3, 2013. Plaintiff filed an application
for leave to appeal in the Supreme Court, and the Court remanded
the case to the Court of Appeals for consideration as on leave
granted. 500 Mich 1057 (2017). On remand, the Court of Appeals,
METER, P.J., and GADOLA and TUKEL, JJ., affirmed the circuit court
order in an unpublished per curiam opinion issued May 15, 2018
(Docket No. 333952), reasoning that just because it was not
feasible to back a boat trailer fully to the water’s edge did not
prevent the easement from being used to launch boats, including
with the use of a boat trailer.
2 505 MICH 1 [Nov

Plaintiff appealed, and the Supreme Court ordered and heard

oral argument on whether to grant the application for leave to
appeal or take other action. 503 Mich 1024 (2019).
In a unanimous per curiam opinion, the Supreme Court, in
lieu of granting leave to appeal, held:
An easement holder cannot make improvements to the
servient estate if the improvements are unnecessary for the
effective use of the easement or they unreasonably burden the
servient tenement. Relatedly, the conveyance of an easement
gives to the grantee all the rights that are incident or necessary
to the reasonable and proper enjoyment of the easement. In this
case, the easement expressly included the right to bring a boat
trailer onto Parcel B and to use it to launch watercraft into the
water. Given the dictionary definition of the word “launch”—
that is, to set (a boat or ship) in the water—the scope of the
easement necessarily included the ability to bring a boat trailer
at least to the water’s edge; in other words, the easement had to
include that ability because in order to set a watercraft in the
water, including by boat trailer, one had to be able to bring the
trailer at least to the water’s edge. In addition, because plaintiff
had an easement to launch boats, including by boat trailer, and
the ability to perform that action was necessary to the reason-
able and proper enjoyment of the easement, he had the right to
regrade the shoreline of Parcel B for easier access to the water.
Court of Appeals judgment reversed, circuit court order deny-
ing plaintiff’s request to adjust the slope of Parcel B vacated in
part, and case remanded to the circuit court.

Outside Legal Counsel PLC (by Philip L. Ellison) for

Jeffrey S. Maniaci.

Bommarito Law Offices, PLLC (by Alexander D.

Bommarito) for the Kenneth G. Siler and Tonya L.
Siler Revocable Trust dated April 3, 2013.

PER CURIAM. This case involves the scope of an

easement to traverse a piece of property (Parcel B) that
separates a road (Vonda Lane) from the Tittabawassee
River, also known at this location as Secord Lake.
Pursuant to a June 18, 2015 consent judgment, the
2019] MANIACI V DIROFF 3

defendants1 conveyed an easement across Parcel B for

ingress and egress access to and from the Tittabawas-
see River to the plaintiff, Jeffrey S. Maniaci, and
others. The consent judgment specified that the ease-
ment “may also be used for the temporary mooring and
launching of watercraft, including by boat trailer, but
may not be used for non-temporary mooring, docks,
and/or wharfs.”
To decide this case, we must answer two questions.
First, does the scope of the easement include backing a
boat trailer all the way to the water’s edge? Second, is
it necessary for effective use of the easement to regrade
the shoreline to allow such access by boat trailer?
We answer both of those questions yes. Accordingly,
we reverse the judgment of the Court of Appeals,
vacate in part the July 11, 2016 order of the Gladwin
Circuit Court, and remand this case to the Gladwin
Circuit Court for further proceedings consistent with
this opinion.
Michigan law on easements is well established. In
Blackhawk Dev Corp v Village of Dexter, 473 Mich 33,
41; 700 NW2d 364 (2005), quoting Little v Kin, 468
Mich 699, 701; 664 NW2d 749 (2003), this Court
reaffirmed “[a] fundamental principle of easement
law”: the easement holder cannot “make improve-
ments to the servient estate if such improvements are
unnecessary for the effective use of the easement or
they unreasonably burden the servient tenement.”
(Quotation marks omitted.) The Court also quoted

1
In June 2016, the defendants-appellees Thomas and Mandy Diroff
conveyed Parcel B to Kenneth G. Siler and Tonya L. Siler. In July 2016,
the Silers then conveyed Parcel B by quitclaim deed to appellee, the
Kenneth G. Siler and Tonya L. Siler Revocable Trust dated April 3, 2013.
This opinion uses “the defendants” to refer to the Diroffs and “the
appellee” to refer to the Siler Trust.
4 505 MICH 1 [Nov

Unverzagt v Miller, 306 Mich 260, 265; 10 NW2d 849

(1943), for the related proposition that “the convey-
ance of an easement gives to the grantee all such
rights as are incident or necessary to the reasonable
and proper enjoyment of the easement.” (Quotation
marks and citation omitted.)
Applying these legal principles, we have little
trouble concluding that the unambiguous terms of the
easement provide an express right to back a boat
trailer to the water’s edge. The consent judgment
defines the easement as extending from the end of
Vonda Road to the water’s edge and states that the
easement may be used for the “launching of watercraft,
including by boat trailer . . . .” See ¶ 1 of the consent
judgment (defining Parcel B, in part, as “to the water’s
edge of the Tittabawassee River”); see also ¶ 2 (grant-
ing the plaintiff “an appurtenant non-recreational
easement for ingress and egress access to and from the
Tittabawassee River (a/k/a Secord Lake) across Parcel
B to and from Vonda Lane”) (emphasis added). Thus,
the easement expressly includes the right to bring a
boat trailer onto the property and to use the trailer to
“launch” watercraft into the water. A lay dictionary
includes as its first definition of the word “launch” “to
set (a boat or ship) in the water.” Random House
Webster’s College Dictionary (2003); see also Merriam-
Webster’s Collegiate Dictionary (11th ed) (defining
“launch” as “to set (a boat or ship) afloat”). Because in
order to “set a watercraft in the water, including by
boat trailer,” one must be able to bring a boat trailer at
least to the water’s edge, the scope of the easement
must include the ability to do so.2 We therefore dis-

2
The Court of Appeals erred by going beyond the language of the
consent judgment to determine the scope of the easement. The Court
concluded that regrading the shoreline was outside the scope of the
2019] MANIACI V DIROFF 5

agree with the Court of Appeals’ contrary conclusion

that “just because it is not feasible to back a boat
trailer all the way to the water’s edge does not prevent
the easement from being used to launch boats, includ-
ing with the use of a boat trailer.” Maniaci v Diroff,
unpublished per curiam opinion of the Court of Ap-
peals, issued May 15, 2018 (Docket No. 333952), p 5.
We similarly have little difficulty concluding that
the plaintiff’s request to regrade the shoreline of Parcel
B is “necessary to the reasonable and proper enjoy-
ment of the easement.”3 Unverzagt, 306 Mich at 265
(quotation marks and citation omitted). The appellee’s
counsel conceded at oral argument that it is currently
not possible to set a boat in the water by boat trailer on
Parcel B. The current slope of Parcel B therefore both
prevents a boat trailer from being backed to the water’s
edge, a permitted use within the scope of the easement,
and generally inhibits water access by making it diffi-
cult to get boats of any kind into the water.
The plaintiff has an easement to launch boats,
including by boat trailer, on Parcel B. He seeks to do
just that by improving the land to facilitate easy access
to the water by regrading the shoreline.4 This the law
easement, in part, because of evidence that the shoreline remained
unchanged from the commencement of this litigation and evidence
demonstrating that the issue of regrading the shoreline did not arise
until long after entry of the consent judgment. Reference to extrinsic
evidence is not appropriate because the language of the easement is
unambiguous. Little, 468 Mich at 700 & n 2.
3
The appellee makes nothing more than a conclusory statement that
the regrading of the shoreline will unreasonably burden its estate. We
consider a challenge under that part of the Blackhawk test to be
abandoned because the appellee failed to present any supporting
argument.
4
We reject the appellee’s contention that regrading the shoreline
amounts to “damage to the surface of the Easement,” thereby implicat-
ing ¶ 4 of the consent judgment (placing responsibility “for restoring the
6 505 MICH 1

gives him the right to do. We reverse the judgment of

the Court of Appeals, vacate the portion of the Gladwin
Circuit Court’s July 11, 2016 order denying the plain-
tiff’s request to adjust the grade or slope of Parcel B,
and remand to that court for further proceedings
consistent with this opinion.5

MCCORMACK, C.J., and MARKMAN, ZAHRA, VIVIANO,

BERNSTEIN, CLEMENT, and CAVANAGH, JJ., concurred.
Easement to its pre-damaged state” on those who created such damage).
Rather, we agree with the Court of Appeals that “[g]rading the parcel to
alter the slope sufficiently to launch a boat from a boat trailer” is an
improvement. Maniaci, unpub op at 4.
5
We decide only that the plaintiff is entitled to make some alteration
to the shoreline to facilitate the launching of boats by boat trailer and
leave it for the trial court to address any additional issues on remand
that are beyond the scope of that narrow holding.
 PEOPLE V RAJPUT 7

PEOPLE v RAJPUT

Docket No. 158866. Decided January 24, 2020. Reconsideration granted

and opinion amended by order entered at 505 Mich 1112 (2020).
Nadeem Y. Rajput was convicted in the Wayne Circuit Court, Qiana
D. Lillard, J., of second-degree murder, MCL 750.317. Defendant
was driving his vehicle with another man, known only as Haus,
as a passenger. The victim was driving a red Malibu with her
boyfriend, Dewayne Clay, as a passenger. When the Malibu
approached defendant’s vehicle, two individuals in the Malibu
fired gunshots at defendant and Haus. No one was injured.
Defendant and Haus returned to defendant’s house but soon after
went in search of the Malibu. When they found the Malibu, the
victim was the sole occupant. Defendant and Haus chased the
Malibu, eventually trapping it, and then approached the Malibu
on foot. An argument ensued, and multiple gunshots were fired,
resulting in the victim’s death. Defendant was charged with
first-degree premeditated murder, MCL 750.316(1)(a), and pos-
session of a firearm during the commission of a felony (felony-
firearm), MCL 750.227b. Defendant argued that Haus had shot
the victim but that Haus had done so in self-defense when the
victim reached for a gun in her vehicle. Defendant requested that
a self-defense instruction be read to the jury, but the court denied
the request, citing People v Droste, 160 Mich 66 (1910), for the
proposition that a defendant who claims that another person
committed the homicide is not entitled to a self-defense instruc-
tion. Defendant also tried to admit testimony from Pierre Carr,
the brother of Clay, to support his self-defense theory. Carr
testified at an investigative-subpoena hearing that Clay had
arrived at his house on the day of the shooting and called the
victim on the phone as she was being chased. According to Carr,
Clay told the victim to “shoot, shoot.” The trial court refused to
admit the testimony, finding it irrelevant. The jury acquitted
defendant of first-degree murder and felony-firearm but convicted
defendant of second-degree murder. At sentencing, the court
noted defendant’s guidelines minimum sentence range of 225 to
375 months’ imprisonment but departed upward, sentencing
defendant to 46 to 95 years’ imprisonment. Defendant appealed.
In an unpublished per curiam opinion issued on October 25, 2018
8 505 MICH 7 [Jan

(Docket No. 339117), the Court of Appeals, MURRAY, C.J., and

BORRELLO and RONAYNE KRAUSE, JJ., affirmed the trial court’s
ruling on the self-defense instruction and Carr’s testimony. How-
ever, the Court of Appeals disagreed with the trial court’s reason-
ing on the self-defense instruction, holding that defendant was
not entitled to the instruction because defendant and Haus were
the initial aggressors and could have fled. Defendant sought leave
to appeal in the Supreme Court.
In a unanimous per curiam opinion, the Supreme Court, in
lieu of granting leave to appeal and without hearing oral argu-
ment, held:
1. Jury instructions cannot exclude a defendant’s theory of
self-defense if evidence exists to support it. In this case, the trial
court committed legal error when it denied defendant’s requested
self-defense instruction on the basis of the proposition that a
defendant who claims that another person committed the homicide
is not entitled to a self-defense instruction. The opinion in Droste
was inapposite because the defendant in that case did not claim
that the principal acted in self-defense. Furthermore, the Court of
Appeals engaged in improper fact-finding when it held that defen-
dant and Haus were the initial aggressors and could have fled.
Defendant argued that he did not seek out the victim to harm her
but rather to question her regarding the identity of the shooter and
the reason for the shooting. According to defendant, people in a red
Malibu had previously shot at a vacant home next to his home.
Additionally, the Court of Appeals failed to identify any evidence
supporting its theory that defendant could have fled at the time he
and Haus confronted the victim. Defendant argued that the victim
had a gun, and the police did find a gun in the front seat of the
victim’s car. Regardless of the merits of this defense, whether
defendant and Haus were the initial aggressors or could have fled
were issues for the jury to decide because defendant presented
sufficient evidence to satisfy his burden of proof on self-defense.
Accordingly, the Court of Appeals erred by affirming the denial of
defendant’s requested self-defense instruction.
2. MRE 401 provides that relevant evidence is evidence having
any tendency to make the existence of any fact that is of conse-
quence to the determination of the action more probable or less
probable than it would be without the evidence. MRE 402 provides
that all relevant evidence is generally admissible. In this case, the
Court of Appeals erred by finding Carr’s testimony irrelevant.
Carr’s testimony was relevant because it addressed a material
issue—the issue of self-defense. In particular, it addressed whether
the victim had reached for the gun found in her car as defendant
2020] PEOPLE V RAJPUT 9

and Haus approached her. And Carr’s testimony had probative

value because it had some tendency to make it more likely that the
victim reached for a gun when instructed by Clay to “shoot, shoot”
and that Haus responded in self-defense. Finally, because the
Court of Appeals made an improper factual finding that defendant
and Haus were the initial aggressors and could have fled, it also
erred by finding Carr’s testimony irrelevant for this reason.
Reversed and remanded to the Court of Appeals.

Nadeem Rajput in propria persona.

PER CURIAM. We consider whether defendant,

Nadeem Yousaf Rajput, was entitled to his requested
self-defense instruction and whether the trial court
erred by refusing to admit testimony related to defen-
dant’s theory of self-defense.
On May 7, 2016, defendant was driving his vehicle
with another man known only as Haus. At the same
time, the victim, Lakeisha Henry, was driving a red
Malibu with her boyfriend, Dewayne Clay, as a passen-
ger. The Malibu approached defendant’s vehicle, and
two individuals in the Malibu fired gunshots at defen-
dant and Haus. No one was injured. Rather than
immediately confront the Malibu after it drove off,
defendant and Haus first returned to defendant’s
home. Soon after, however, they left and went in search
of the Malibu. By the time they found it, the victim was
the sole occupant. Defendant and Haus chased the
Malibu, eventually trapping it, and then approached
the Malibu on foot. An argument ensued, and multiple
gunshots were fired, resulting in the victim’s death.
At trial, defendant argued that Haus had shot the
victim but that Haus had done so in self-defense when
the victim reached for a gun in her vehicle. Defendant
requested that a self-defense instruction be read to the
jury, but the trial court denied his request, citing
People v Droste, 160 Mich 66; 125 NW 87 (1910), for the
10 505 MICH 7 [Jan

proposition that a defendant who claims that another

person committed the homicide is not entitled to a
self-defense instruction. Defendant also tried to admit
testimony from Pierre Carr, the brother of Clay, to
support his self-defense theory. Carr testified at an
investigative-subpoena hearing that Clay had arrived
at his house on the day of the shooting and called the
victim on the phone as she was being chased. According
to Carr, Clay told the victim to “shoot, shoot.” The trial
court refused to admit the testimony, finding it irrel-
evant. The jury convicted defendant of second-degree
murder, MCL 750.317, and the trial court sentenced
him to 46 to 95 years in prison.
The Court of Appeals affirmed the trial court’s
rulings on the self-defense instruction and Carr’s tes-
timony. Although it disagreed with the trial court’s
reasoning, the Court held that defendant was not
entitled to a self-defense instruction because he and
Haus were the initial aggressors and could have fled.
People v Rajput, unpublished per curiam opinion of the
Court of Appeals, issued October 25, 2018 (Docket No.
339117), p 5. The Court of Appeals also held that Carr’s
testimony was irrelevant. Id. at 5-6.
We reverse the Court of Appeals’ holding that defen-
dant was not entitled to his requested self-defense
instruction and that Carr’s testimony was irrelevant,
and we remand this case to the Court of Appeals for
further consideration in light of this opinion.

*
**

The first issue is whether defendant was entitled to

his requested self-defense instruction. “If supported
by the evidence, defendant’s theory of the case must
be given.” People v Hoskins, 403 Mich 95, 100; 267
NW2d 417 (1978), citing People v Reed, 393 Mich 342,
2020] PEOPLE V RAJPUT 11

350; 224 NW2d 867 (1975). And “[o]nce a defendant

satisfies the initial burden of producing some evi-
dence from which a jury could conclude that the
elements necessary to establish a prima facie defense
of self-defense exist, the prosecution bears the burden
of disproving the affirmative defense of self-defense
beyond a reasonable doubt.” People v Dupree, 486
Mich 693, 712; 788 NW2d 399 (2010). The sufficiency
of the evidence of a defendant’s self-defense theory is
“for the jury to decide under proper instructions . . . .”
Hoskins, 403 Mich at 100. Those instructions cannot
exclude the theory of self-defense “if there is evidence
to support [it].” Reed, 393 Mich at 350. We review the
trial court’s determination that the jury instruction
was inapplicable for an abuse of discretion. Dupree,
486 Mich at 702. “A trial court necessarily abuses its
discretion when it makes an error of law.” People v
Duncan, 494 Mich 713, 723; 835 NW2d 399 (2013).
We agree with the Court of Appeals that the trial
court’s reason for denying defendant’s requested
self-defense instruction was wrong. According to the
trial court, defendant’s claim that Haus shot the
victim precluded an instruction on self-defense. But
an aider and abettor is relieved of liability if the
principal acted in self-defense. See People v Pearce,
369 Mich 692, 695; 120 NW2d 838 (1963). Our opinion
in Droste is inapposite because in that case the
defendant did not claim that the principal acted in
self-defense. Droste, 160 Mich at 80 (holding that no
self-defense instruction was warranted when the de-
fendant claimed that someone else had committed the
homicide and the defendant had not requested a
self-defense instruction). Therefore, the trial court
made a legal error that amounted to an abuse of
discretion.
12 505 MICH 7 [Jan

But we also hold that the Court of Appeals engaged

in improper fact-finding when it held that defendant
and Haus were the initial aggressors and could have
fled instead of responding with deadly force when the
victim allegedly reached for a weapon. First, “an initial
aggressor (i.e., one who is the first to use deadly force
against the other) . . . is generally not entitled to use
deadly force in self-defense.” People v Riddle, 467 Mich
116, 120 n 8; 649 NW2d 30 (2002). Though the Court of
Appeals determined that defendant was an initial
aggressor, defendant argued that he did not seek out
the victim to harm her. Instead, he testified that he
pursued the victim only to find out who was shooting at
him and why. According to defendant, he also wanted
to find out who was shooting at him because people in
a red Malibu had previously shot at a vacant home
next to his home—a story confirmed by his father at
trial. Second, “[o]ne who is involved in a physical
altercation in which he is a willing participant . . . is
required to take advantage of any reasonable and safe
avenue of retreat before using deadly force against his
adversary, should the altercation escalate into a deadly
encounter.” Id. at 120. The Court of Appeals deter-
mined that defendant could have fled at the time he
and Haus confronted the victim. But the Court failed to
point to any evidence supporting this theory. Defen-
dant, on the other hand, testified that the victim had
reached for a gun in the car and that Haus reacted to
this in self-defense; the police did find a gun in the
front passenger seat of the victim’s car, which could
lend support to defendant’s version of events. Regard-
less of the merits of this defense, whether defendant
and Haus were the initial aggressors or could have fled
were issues “for the jury to decide” because defendant
presented sufficient evidence to satisfy his burden of
proof on self-defense. Hoskins, 403 Mich at 100. There-
2020] PEOPLE V RAJPUT 13

fore, the Court of Appeals erred by affirming the denial

of defendant’s requested self-defense instruction.

*
**

The second issue is whether Carr’s testimony was

relevant to defendant’s theory of self-defense. Under
MRE 401, “evidence having any tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable or less
probable” is relevant. Accordingly, evidence is relevant
if it is material and has probative value. See People v
Crawford, 458 Mich 376, 388; 582 NW2d 785 (1998).
“Materiality is the requirement that the proffered
evidence be related to ‘any fact that is of consequence’
to the action.” Id., quoting MRE 401. And evidence has
probative value when it “tends ‘to make the existence
of any fact that is of consequence to the determination
of the action more or less probable than it would be
without the evidence.’ ” Crawford, 458 Mich at 389-
390, quoting MRE 401. This “threshold is minimal:
‘any’ tendency is sufficient probative force.” Crawford,
458 Mich at 390, quoting MRE 401. Finally, all rel-
evant evidence is generally admissible. MRE 402. We
review evidentiary decisions under MRE 401 for an
abuse of discretion. See People v Denson, 500 Mich 385,
396; 902 NW2d 306 (2017).
The Court of Appeals affirmed the trial court, find-
ing the evidence irrelevant.1 It found that “even if Clay
told [the victim] to shoot at defendant, that does not
make it any more or less likely that [the victim]
actually shot at defendant.” Rajput, unpub op at 6. The

1
The Court of Appeals suggested that Carr’s testimony was inadmis-
sible hearsay but then decided the case on relevance grounds instead of
hearsay. Rajput, unpub op at 5-6. Because the Court of Appeals has yet
to decide this issue, we do not address it here.
14 505 MICH 7 [Jan

Court also found Carr’s testimony irrelevant “because

defendant and Haus were the initial aggressors in
pursuing [the victim]” and, as a result, “defendant was
not justified in responding with deadly force even if we
assume that [the victim] actually fired a gun at defen-
dant at some point during the incident.” Id. We dis-
agree with the Court of Appeals’ conclusion. Carr’s
testimony was relevant because it addressed a mate-
rial issue—the issue of self-defense. In particular, it
addressed whether the victim had reached for the gun
found in her car as defendant and Haus approached
her. And Carr’s testimony has probative value because
it has some tendency—however minimal—to make it
more likely that the victim reached for a gun when
instructed by Clay to “shoot, shoot” and that Haus
responded in self-defense. Finally, as discussed earlier,
because the Court of Appeals made an improper fac-
tual finding that defendant and Haus were initial
aggressors and could have fled—and thus were not
entitled to a self-defense instruction—it also erred by
finding Carr’s testimony irrelevant for this reason.

*
**

We reverse the Court of Appeals’ holdings that

defendant was not entitled to his requested self-
defense instruction and that Carr’s testimony was
irrelevant. We remand this case to the Court of
Appeals to address whether the trial court’s errone-
ous denial of defendant’s requested self-defense in-
struction was harmless beyond a reasonable doubt.
See People v Anderson (After Remand), 446 Mich 392
(1994); People v Carines, 460 Mich 750 (1999). The
Court of Appeals shall also address whether Carr’s
investigative-subpoena testimony was admissible un-
der MRE 804(b)(1) and whether Clay’s statement to
2020] PEOPLE V RAJPUT 15

the victim was admissible either as an excited utter-

ance under MRE 803(2) or because it was not hearsay
under MRE 801(c). If the panel concludes that the
evidence was admissible, it shall consider whether
exclusion of Carr’s testimony was harmless or whether
it is more probable than not that the error was
outcome-determinative. See Lukity, 460 Mich at 496.
Finally, although he was charged with first-degree
murder, the jury acquitted defendant of that charge. At
sentencing, the trial court noted defendant’s guidelines
minimum sentence range of 225 to 375 months but
departed upward. In doing so, the trial court remarked
that defendant appeared to be guilty of first-degree
murder, not second, and suggested that the jury verdict
might have been a compromise. If the Court of Appeals
affirms defendant’s conviction, it shall reconsider the
trial court’s sentence in light of People v Beck, 504 Mich
605, 609; 939 NW2d 213 (2019) (“Once acquitted of a
given crime, it violates due process to sentence the
defendant as if he committed that very same crime.”).2
We do not retain jurisdiction.

MCCORMACK, C.J., and MARKMAN, ZAHRA, VIVIANO,

BERNSTEIN, CLEMENT, and CAVANAGH, JJ., concurred.

2
Because defendant’s sentence must first be reconsidered in light of
Beck, we decline to address defendant’s argument that his sentence is
unreasonable or disproportionate.
16 505 MICH 16 [Mar

PEOPLE v FURLINE
PEOPLE v JENKINS

Docket Nos. 158296 and 158298. Argued on application for leave to

appeal October 3, 2019. Decided March 12, 2020.
Terrance A. Furline and Alvin B. Jenkins, Sr., were convicted, after a
joint jury trial in the Saginaw Circuit Court, of criminal enterprise,
arson, retail fraud, and related crimes under an aiding-and-
abetting theory in connection with a fire and subsequent at-
tempted theft at a home-improvement store in Saginaw. Furline
moved to be tried separately from Jenkins, arguing that a joint
trial would prejudice his substantial rights because Jenkins had
stated, in a videotaped interview with detectives from the Saginaw
County Sheriff’s Department, that Furline had told Jenkins he
planned to set the fire and encouraged Jenkins to steal items
during the ensuing commotion. Furline further argued that, be-
cause he planned to defend against the charges on the grounds
that he was presumed innocent and that Jenkins had acted alone
in setting the fire and attempting to commit retail fraud, their
defenses were antagonistic and mutually exclusive and Furline
would be denied his right to cross-examine Jenkins about his
statements in the interview. The court, James T. Borchard, J.,
denied the motion for severance, and, after defendants were tried
jointly and convicted, they appealed their convictions. The Court of
Appeals, O’BRIEN, P.J., and CAVANAGH and STEPHENS, JJ., consoli-
dated the appeals and held that the trial court had abused its
discretion by denying the motion for severance. Accordingly, the
Court of Appeals vacated defendants’ convictions and sentences
and remanded the cases for new trials. People v Furline, unpub-
lished per curiam opinion of the Court of Appeals, issued July 3,
2018 (Docket No. 335906). The prosecution sought leave to appeal
in the Supreme Court, which ordered and heard oral argument on
whether to grant the application or take other action. 503 Mich 942
(2019).
In a per curiam opinion signed by Chief Justice MCCORMACK
and Justices MARKMAN, ZAHRA, VIVIANO, and CLEMENT, in lieu of
granting leave to appeal, the Supreme Court held:
2020] PEOPLE V FURLINE 17

The Court of Appeals erred by vacating defendants’ convictions

and sentences and remanding for a new trial. Severance is man-
dated only when a defendant provides the court with a supporting
affidavit, or makes an offer of proof, that clearly, affirmatively, and
fully demonstrates that the defendant’s substantial rights will be
prejudiced by a joint trial and that severance is the necessary
means of rectifying the potential prejudice. The trial court correctly
ruled that Furline failed to show that he was entitled to severance
in his motion and supporting affidavit, and this decision must be
upheld because there was no significant indication on appeal that
the requisite prejudice actually occurred at trial.
1. MCR 6.121(C) requires a trial court to sever the trial of
defendants on related offenses on a showing that severance is
necessary to avoid prejudice to a defendant’s substantial rights.
Under People v Hana, 447 Mich 325 (1994), severance is mandated
only when a defendant provides the court with a supporting
affidavit, or makes an offer of proof, that clearly, affirmatively, and
fully demonstrates that the defendant’s substantial rights will be
prejudiced and that severance is the necessary means of rectifying
the potential prejudice. The failure to show that the requisite
prejudice to substantial rights in fact occurred at trial precludes
the reversal of a joinder decision. While severance may be war-
ranted when defendants’ mutually exclusive or antagonistic de-
fenses create a serious risk of prejudice, the defenses must be
irreconcilable and create such great tension that a jury would have
to believe one defendant at the expense of the other. Prejudice
requiring reversal occurs only when the competing defenses are so
antagonistic at their cores that both cannot be believed. Incidental
spillover prejudice, which is almost inevitable in a multidefendant
trial, does not suffice for reversal.
2. The trial court correctly ruled that Furline failed to show
that he was entitled to severance in his motion and supporting
affidavit. Furline offered two theories of prejudice. First, Furline
anticipated that the prosecutor would offer into evidence a video in
which Jenkins denied setting the fire in the Saginaw store and
stated that Furline admitted setting that fire. Furline argued that
he would be prejudiced by the inability to confront and to cross-
examine Jenkins about these statements. Second, believing that
Jenkins would claim that Furline acted alone, Furline argued that
he would be prejudiced by the need to defend not only against the
prosecutor’s case but also against Jenkins’s defense theory. But at
the hearing on Furline’s motion, the prosecutor expressed his
intent not to offer the video into evidence. The allegations in
Furline’s affidavit did not demonstrate that his substantial rights
18 505 MICH 16 [Mar

would be prejudiced at trial without severance because these

allegations were either irrelevant, involved legal conclusions
rather than facts, or involved the contents of the video that the
prosecutor agreed not to offer into evidence.
3. The trial court’s decision must be upheld because there was
not a significant indication on appeal that the requisite prejudice
actually occurred at trial. Furline feared that he would have to
defend against Jenkins’s theory that Furline set the fire and that,
in light of Jenkins’s theory, he would struggle to show that Jenkins
acted alone. Neither fear came to pass because Jenkins offered no
evidence that Furline started the fire at the Saginaw store and
Furline offered no evidence that Jenkins acted alone. The record
did not support the proposition that either defendant sought to
convict the other or that either had to defend in turn against the
other’s antagonistic defense. Each defendant experienced, at most,
incidental spillover prejudice rather than the degree of prejudice
required to reverse the trial court’s joinder decision.
Court of Appeals judgment reversed; defendants’ convictions
and sentences reinstated; Furline’s cross-application for leave to
appeal denied.
Justice CAVANAGH, joined by Justice BERNSTEIN, concurred but
wrote separately to avoid possible misinterpretations. She stated
that review of the trial court’s decision to deny pretrial severance
is accomplished by reference to the pretrial motion and affidavit,
while review of prejudice that might have occurred at trial is a
separate inquiry. Review of the trial court’s pretrial decision to
deny severance in this case was simple, given that the only pretrial
prejudice theory advanced by either defendant was addressed
when the prosecution agreed to forgo the use of Jenkins’s recorded
statement. With respect to whether there was any significant
indication on appeal that the requisite prejudice in fact occurred at
trial, she noted that the defenses actually presented at trial were
neither mutually exclusive nor irreconcilable; rather, each defen-
dant argued that the prosecution had not met its burden against
either of them. Justice CAVANAGH further stated that she did not
understand the Court’s opinion to hold that the prosecution can
avoid severance simply by charging codefendants under an aiding-
and-abetting theory because the relevant inquiry is not the pros-
ecution’s theory but the defenses offered by the defendants.

CRIMINAL LAW — JOINT TRIALS — SEVERANCE — AIDING AND ABETTING.

MCR 6.121(C) requires a trial court to sever the trial of defendants
on related offenses on a showing that severance is necessary to
avoid prejudice to a defendant’s substantial rights; severance is
2020] PEOPLE V FURLINE 19

mandated only when a defendant provides the court with a

supporting affidavit, or makes an offer of proof, that clearly,
affirmatively, and fully demonstrates that the defendant’s sub-
stantial rights will be prejudiced and that severance is the
necessary means of rectifying the potential prejudice; for sever-
ance to be warranted when defendants’ mutually exclusive or
antagonistic defenses create a serious risk of prejudice, the
defenses must be irreconcilable and create such great tension
that a jury would have to believe one defendant at the expense of
the other.

Dana Nessel, Attorney General, Fadwa A.

Hammoud, Solicitor General, John A. McColgan, Jr.,
Prosecuting Attorney, and Melissa J. Hoover, Assistant
Prosecuting Attorney, for the people.

Ronald D. Ambrose for Terrance A. Furline.

Jonathan B. D. Simon for Alvin B. Jenkins, Sr.

Amicus Curiae:

D. J. Hilson, Kym L. Worthy, Jason W. Williams, and

Timothy A. Baughman for the Prosecuting Attorneys
Association of Michigan.

PER CURIAM. In October 2015, a fire broke out at the

Home Depot in Flint Township and, in the ensuing
commotion, merchandise was stolen. The next day, a
fire broke out at the Home Depot in Saginaw, but an
attentive employee, tipped off that morning by the
Flint store’s loss-prevention staff, foiled a theft at-
tempt by grabbing a cart full of big-ticket items before
a man, who turned out to be Alvin Jenkins, could make
off with it. After a police investigation, Jenkins and
Terrance Furline were arrested and charged in Sag-
inaw County with criminal enterprise, arson, retail
fraud, and related crimes, under an aiding-and-
abetting theory. Furline moved to be tried separately
20 505 MICH 16 [Mar

from Jenkins. The trial court denied Furline’s motion.

After a joint trial, a jury convicted each defendant on
all charges. Furline appealed the severance issue in
the Court of Appeals, which vacated and remanded for
proceedings “with some device of severance.” The pros-
ecutor then sought this Court’s leave to appeal.1
Rather than grant leave, we reverse the Court of
Appeals’ judgment and reinstate defendants’ convic-
tions and sentences.
The decision to try two defendants jointly or sepa-
rately lies within the discretion of the trial court, and
that decision will not be overturned absent an abuse of
that discretion. People v Hana, 447 Mich 325, 331; 524
NW2d 682 (1994); see also MCL 768.5.
Under MCR 6.121(C), the trial court “must sever the
trial of defendants on related offenses on a showing
that severance is necessary to avoid prejudice to sub-
stantial rights of the defendant.” According to Hana,
447 Mich at 346, “[s]everance is mandated . . . only
when a defendant provides the court with a supporting
affidavit, or makes an offer of proof, that clearly,
affirmatively, and fully demonstrates that his substan-
tial rights will be prejudiced and that severance is the
necessary means of rectifying the potential prejudice.”
The affidavit or offer of proof must state “facts on
which the court might determine whether . . . a joint
trial might result in prejudice.” Id. at 339 (cleaned up).
A court can reject statements that are “conclusory” or
that “lack[] sufficient specificity to enable the trial
court to accurately determine what the [joined defen-
dants’] defenses would be, how the defenses would
affect each other, and whether the defendants’ respec-

1
Furline cross-applied for leave to appeal. We deny his cross-
application because we are not persuaded that the questions he pre-
sented should be reviewed by this Court.
2020] PEOPLE V FURLINE 21

tive positions were indeed mutually exclusive or

merely inconsistent.” Id. at 355. A defendant’s claim of
prejudice must be “substantiated” through “concrete
facts.” Id. We stressed in Hana that the failure to show
prejudice to substantial rights, “absent any significant
indication on appeal that the requisite prejudice in fact
occurred at trial, will preclude reversal of a joinder
decision.” Id. at 347.
As Hana acknowledged, severance may be war-
ranted when defendants’ “mutually exclusive” or “an-
tagonistic” defenses create a “serious risk” of prejudice.
Id. at 344-346 (cleaned up). But we explained that the
defenses must be “irreconcilable” and create such great
tension “that a jury would have to believe one defen-
dant at the expense of the other.” Id. at 349 (cleaned
up). “Defenses are mutually exclusive within the
meaning of this rule if the jury, in order to believe the
core of the evidence offered on behalf of one defendant,
must disbelieve the core of the evidence offered on
behalf of the co-defendant.” Id. at 350 (cleaned up).
Prejudice requiring reversal occurs “only when the
competing defenses are so antagonistic at their cores
that both cannot be believed.” Id. at 349-350 (cleaned
up). But “incidental spillover prejudice, which is al-
most inevitable in a multi-defendant trial, does not
suffice.” Id. at 349 (cleaned up). When the prosecutor
relies on aiding-and-abetting liability, finger-pointing
—each defendant’s proceeding on a theory that “the
other guy did it”—“does not create mutually exclusive
antagonistic defenses.” Id. at 361. Both defendants
may be found “similarly liable without any prejudice or
inconsistency because one found guilty of aiding and
abetting can also be held liable as a principal.” Id.
In his trial motion and supporting affidavit, Furline
offered two theories of prejudice. First, he anticipated
22 505 MICH 16 [Mar

that the prosecutor would offer into evidence a video in

which Jenkins denied setting the fire in the Saginaw
store, accused Furline of setting that fire, and stated
that Furline admitted setting that fire; Furline argued
that he would be prejudiced by the inability to confront
and to cross-examine Jenkins about these statements.
Cf. Bruton v United States, 391 US 123; 88 S Ct 1620; 20
L Ed 2d 476 (1968). Second, believing that Jenkins
would claim that Furline acted alone, Furline argued
that he would be prejudiced by the need to defend not
only against the prosecutor’s case but also against
Jenkins’s defense theory. In a hearing on Furline’s
motion, Furline’s counsel focused on the Jenkins video
as a source of prejudice, and the prosecutor expressed
his intent not to offer the video into evidence. In a
written opinion, the trial court denied relief on the basis
that Furline had shown “merely antagonistic,” but not
“irreconcilable,” “claims as to who was responsible for
setting the fire.”
We agree with the trial court that Furline failed to
show that he was entitled to severance in his motion
and affidavit. Furline’s affidavit offered the following
allegations:
1. I am charged, along with co-defendant, Alvin Ber-
nard Jenkins, Sr., with Criminal Enterprise, Conspiracy,
Arson and Retail Fraud as a result of an incident on
October 29, 2015, at Home Depot in Kochville Township,
Saginaw County, MI.
2. That co-defendant Jenkins has given taped state-
ments in which he claimed that I started the fire at Home
Depot, and that I admitted this to him.
3. That I deny setting the fire at Home Depot, and deny
ever admitting this to anyone and Jenkins is lying about
this.
4. That should this case proceed to Trial with two
defendants, it is anticipated that a [Bruton v United
2020] PEOPLE V FURLINE 23

States] situation will arise where Defendant Furline may

be denied his right to confront the witness against him, in
the event the videotaped statement of Jenkins is played
before the jury.
5. That the defenses of defendant Furline and co-
defendant Jenkins are antagonistic and mutually exclu-
sive and require severance under [People v Hana].
6. That unless the trials of Furline and Jenkins are
separated, my substantial rights will be prejudiced and
that severance is necessary to rectify the possible prejudice.
[Cleaned up.]

These allegations don’t demonstrate that Furline’s sub-

stantial rights would be prejudiced at trial without
severance. Paragraph 1 is contextual and not relevant
to the severance analysis. Paragraphs 2 and 4 relate
directly to prejudice caused by the Jenkins video and so
are obviated by the prosecutor’s agreement not to offer
that video into evidence. While Paragraph 3 doesn’t
mention the video, its denials correspond to Jenkins’s
accusations in the video (i.e., the “taped statements”
described in Paragraph 2); so, like Paragraphs 2 and 4,
this paragraph is obviated by the prosecutor’s agree-
ment. Paragraphs 5 and 6 contain legal conclusions
rather than facts and so don’t contribute to Furline’s
burden. It is clear to us, in light of the prosecutor’s
agreement, that Furline’s affidavit lacks the “concrete
facts” to “fully demonstrate” his claim of prejudice.
Hana, 447 Mich at 355.
In light of the failure of Furline’s affidavit to articu-
late a prejudice theory that materialized at trial, we
reject the Court of Appeals’ belief that the trial court
“was fully apprised of the specifics of the codefendants’
mutually exclusive defenses and the potential prejudice
from one defendant being pitted against another in
order to prove each’s innocence.” People v Furline,
unpublished per curiam opinion of the Court of Appeals,
24 505 MICH 16 [Mar

issued July 3, 2018 (Docket Nos. 335906 and 336203),

p 7. Even if Furline’s motion “fully apprised” the trial
court of his defense—he said in his motion that he
intended “to defend this matter by relying on his pre-
sumption of innocence and requiring the People to meet
their burden of proof”—the prosecution met its burden
of demonstrating each individual defendant’s guilt
without either defendant’s help.
For these reasons, we see no error in the trial court’s
denial of Furline’s motion.
The trial court’s decision must be upheld absent a
“significant indication on appeal that the requisite
prejudice” actually occurred at trial. Hana, 447 Mich at
347. We believe that no such prejudice actually oc-
curred. Furline feared that he would have to defend
against Jenkins’s theory that Furline set the fire and
that, in light of Jenkins’s theory, he would struggle to
show that Jenkins acted alone. Neither fear came to
pass since Jenkins offered no evidence that Furline
started the fire at the Saginaw store and Furline
offered no evidence that Jenkins acted alone.
The Court of Appeals exaggerated the extent to
which each defendant contributed to proving the oth-
er’s culpability. Furline averred in his motion that his
and Jenkins’s defenses would require Furline to “seek
to convict the other, and defend in turn against the
other’s antagonistic defense, while also defending
against the prosecution’s case.” The Court of Appeals
believed that defendants were prejudiced at trial be-
cause each had “to prove the other’s culpability
through each witness’s testimony.” Furline, unpub op
at 8. But, as explained below, the record doesn’t sup-
port the proposition that either defendant “sought to
convict the other” or that either had to “defend in turn
against the other’s antagonistic defense.”
2020] PEOPLE V FURLINE 25

The Court of Appeals started with whether joinder

prejudiced Jenkins—even though Jenkins never
moved for a separate trial and did not raise the
severance issue on appeal. The Court of Appeals cited
the testimony of Doris Walker-Furline, a witness called
by the prosecutor. Walker-Furline, Furline’s mother
and an accomplice in the Flint incident, testified that
Furline had known Jenkins only for a week, that
Jenkins had set the Flint fire, that Furline was present
for (but did not participate in) the Flint incident, and
that Jenkins wished to repeat the scheme at the
Saginaw store. As the Court put it, “Without Furline
having to testify himself, his mother’s testimony was
evidence that promoted his defense that it was Jenkins
[sic] idea to commit arsons and thefts at home improve-
ment stores and he had nothing to do with Jenkins’
plan.” Id. But Walker-Furline lacked direct knowledge
of the Saginaw incident, and her testimony placed
Furline at the Flint store—hardly exonerating. Noth-
ing in the Court of Appeals’ characterization of Walker-
Furline’s testimony suggested that Furline “sought to
convict” Jenkins. Nor did it cause Jenkins to have to
“defend against [Furline’s] antagonistic defense.”
As to the prejudice to Furline, the Court of Appeals
identified Jenkins’s counsel’s cross-examinations of
Walker-Furline and of Joy Royal, another witness called
by the prosecutor. Jenkins’s counsel tried and failed to
elicit Walker-Furline’s acknowledgment that Furline
was involved in the Flint incident. From Royal, he got
testimony that Furline had been involved in a “no
receipt” return at a Lowe’s store. While Jenkins’s coun-
sel perhaps wished to highlight Furline’s involvement,
that involvement already had been shown by the pros-
ecutor.
26 505 MICH 16 [Mar

The Court of Appeals characterized “[t]his situation”

as creating “a subtle effect of joining defendants who
have asserted mutually exclusive defenses.” Furline,
unpub op at 8. It then offered this curious quotation,
from United States v Tootick, 952 F2d 1078, 1083 (CA
9, 1991): “ ‘All evidence having the effect of exonerating
one defendant implicitly indicts the other. The defen-
dant must not only contend with the effects of the
government’s case against him, but he must also
confront the negative effects of the codefendant’s
case.’ ” Furline, unpub op at 8. But contrary to the
Court of Appeals’ implication, defendants here weren’t
forced into a zero-sum contest. And, as we’ve noted,
neither defendant contributed meaningfully to the
prosecutor’s case. Even if the circumstances of this
case created a “subtle effect” of joining defendants, that
effect was dwarfed by the palpable effect of the pros-
ecutor’s joining defendants—intentionally and
appropriately—under an aiding-and-abetting theory.
Cf. People v Pipes, 475 Mich 267, 280; 715 NW2d 290
(2006) (“The Court of Appeals failed to give sufficient
weight to the evidence that was properly admitted
against each defendant.”); Zafiro v United States, 506
US 534, 543; 113 S Ct 933; 122 L Ed 2d 317 (1993)
(Stevens, J., concurring in the judgment) (“[Where
mutually exclusive defenses transform a trial into a
contest between the defendants], joinder may well be
highly prejudicial, particularly when the prosecutor’s
own case in chief is marginal and the decisive evidence
of guilt is left to be provided by a codefendant.”).
While the Court of Appeals characterized this case
as asking the jury to choose “which of the two was
guilty,” Furline, unpub op at 8, we emphasize that the
prosecutor’s case gave the jury a third option: “both.”
See Hana, 447 Mich at 361 (“[The] jury could have
found both defendants similarly liable without any
2020] PEOPLE V FURLINE 27
CONCURRING OPINION BY CAVANAGH, J.

prejudice or inconsistency because one found guilty of

aiding and abetting can also be held liable as a princi-
pal.”).
Since Furline failed to articulate a prejudice theory
that materialized at trial, we reject the Court of
Appeals’ belief that the trial court “was fully apprised
of the specifics of the codefendants’ mutually exclusive
defenses and the potential prejudice from one defen-
dant being pitted against another in order to prove
each’s innocence.” Furline, unpub op at 7. As explained
above, Furline’s motion did not “fully demonstrate”
potential prejudice. And any prejudice arguably con-
veyed by the motion and affidavit did not occur at trial.
Each defendant experienced, at most, “incidental spill-
over prejudice” rather than the degree of prejudice
required to reverse the trial court’s joinder decision.
Hana, 447 Mich at 347, 349. For these reasons, we
conclude that the Court of Appeals erred. We reverse.

MCCORMACK, C.J., and MARKMAN, ZAHRA, VIVIANO,

and CLEMENT, JJ., concurred.

CAVANAGH, J. (concurring). I concur with the majority

opinion but write separately to avoid possible misin-
terpretations. Review of the trial court’s decision to
deny pretrial severance is accomplished by reference to
the pretrial motion and affidavit, while review of
prejudice that might have occurred at trial is a sepa-
rate inquiry.
Review of the trial court’s pretrial decision to deny
severance here is simple. As the majority notes, the
only pretrial prejudice theory advanced by either de-
fendant was contained in Paragraphs 2 through 4 of
the affidavit attached to defendant Furline’s motion for
severance. That concern was addressed when the pros-
28 505 MICH 16 [Mar
CONCURRING OPINION BY CAVANAGH, J.

ecution agreed to forgo use of defendant Jenkins’s

recorded statement. That issue resolved, there was no
offer of proof before the court as to how joinder would
result in prejudice to either defendant. See People v
Hana, 447 Mich 325, 346; 524 NW2d 682 (1994)
(“Severance is mandated under MCR 6.121(C) only
when a defendant provides the court with a supporting
affidavit, or makes an offer of proof, that clearly,
affirmatively, and fully demonstrates that his substan-
tial rights will be prejudiced and that severance is the
necessary means of rectifying the potential preju-
dice.”). On that basis alone, the trial court’s pretrial
decision to deny severance should be affirmed.
However, there is also a second inquiry: whether
there is “any significant indication on appeal that the
requisite prejudice in fact occurred at trial . . . .” Id. at
347. To answer that question, we ask whether the
defenses which were actually presented at trial were
“ ‘mutually exclusive’ ” or “ ‘irreconcilable.’ ” Id. at 349
(citations omitted). That happens when the “ ‘tension
between defenses [was] so great that a jury would have
to believe one defendant at the expense of the other.’ ”
Id., quoting United States v Yefsky, 994 F2d 885, 896
(CA 1, 1993). Said another way, “ ‘defenses are mutu-
ally exclusive within the meaning of this rule if the
jury, in order to believe the core of the evidence offered
on behalf of one defendant, must disbelieve the core of
the evidence offered on behalf of the co-defendant.’ ”
Hana, 447 Mich at 350, quoting State v Kinkade, 140
Ariz 91, 93; 680 P2d 801 (1984). That was not the case
here.
This is best illustrated by reference to defense
counsels’ closing arguments, where defendants’ de-
fenses were summarized. Defendant Furline’s defense
was not that defendant Jenkins committed the crimes
2020] PEOPLE V FURLINE 29
CONCURRING OPINION BY CAVANAGH, J.

in question alone, but simply that the prosecution had

generally not proven its case beyond a reasonable
doubt. For example, defendant Furline’s counsel did
not specifically argue that defendant Jenkins set the
fire, but that “100 other people perhaps” were in the
store also. Similarly, defendant Jenkins’s counsel did
not argue that defendant Furline set the fire, but to the
contrary said “[t]here is nothing that says that Mr.
Furline was going back to set a fire. There is no
evidence of that as [defendant Furline’s counsel]
pointed out.” Rather than presenting the “mutually
exclusive” or “irreconcilable” defenses that the other
defendant did everything, each defendant argued the
prosecution had not met its burden against either of
them.
Also, I do not understand the Court’s opinion to hold
that the prosecution can avoid severance simply by
charging codefendants under an aiding-and-abetting
theory. As described above and in Hana, the relevant
inquiry is not the prosecution’s theory but the defenses
offered by the defendants. We did say in Hana that
“[f]inger pointing by the defendants when such a
prosecution theory is pursued does not create mutually
exclusive antagonistic defenses.” Hana, 447 Mich at
360-361. However, that was in relation to the compan-
ion cases of People v Rode and People v Gallina. In
those cases, the defendants took turns firing a gun at
an occupied car, each with the apparent encourage-
ment of the other. Id. at 335-336. At one point, Rode
reloaded the gun with bullets supplied by Gallina. Id.
at 335. A fatal shot was fired at the second car after the
collaborative reload. Id. at 336. Each defendant testi-
fied, and the core of their defenses was that “ ‘each
claimed that the other defendant fired the gun.’ ” Id.
(citation omitted). In that context, it made no differ-
ence who fired the gun. But other defense theories in
30 505 MICH 16 [Mar
CONCURRING OPINION BY CAVANAGH, J.

other aiding-and-abetting cases may be antagonistic

enough to require severance.
Because neither defendant made a pretrial offer of
proof alerting the trial court that defendants would
present mutually exclusive defenses, and because no
prejudice occurred at trial, I concur.

BERNSTEIN, J., concurred with CAVANAGH, J.

2020] PEOPLE V SAMMONS 31

PEOPLE v SAMMONS

Docket No. 156189. Argued on application for leave to appeal October 2,

2019. Decided March 16, 2020.
Travis T. Sammons was convicted after a jury trial in the Saginaw
Circuit Court of conspiracy to commit murder, MCL 750.157a, in
connection with the shooting death of Humberto Casas. DyJuan
Jones and Rosei Watkins witnessed the shooting, which occurred
on a street around 1 p.m. Jones was riding in the backseat of a car
being driven by his mother when he heard the shots, and Watkins
was driving with her grandson in her own car. Jones saw a light
gray Jeep, its driver, and another man who was wielding a gun.
Jones described both men as black and wearing white shirts.
Jones described the driver as weighing about 320 pounds with a
long beard, and the gunman as being bald and wearing black
pants. Watkins thought the driver was of average build. Jones
saw the gunman shoot a Hispanic man, later identified as Casas.
Jones did not see the gunman get into the Jeep, but he saw the
Jeep leave going 60 to 70 miles per hour. About 10 to 20 minutes
later, the police pulled over defendant and Dominque Ramsey in
a silver Jeep. Both men wore white shirts. Ramsey weighed about
150 pounds at the time, and had facial hair that one police officer
characterized as short stubble. Although defendant had a short
hairstyle, he was not bald. Both men were taken to the Saginaw
Police Department, where they were detained. A photo of the Jeep
was taken and shown to Watkins, who identified it as the Jeep
from the shooting. Several hours later, Jones and his mother went
to the police station, where Michigan State Police Detective
Sergeant David Rivard organized a showup identification of
defendant and Ramsey. According to Jones, he could identify
neither man as having been involved in the shooting, while
Rivard claimed that Jones identified defendant as the shooter but
did not identify Ramsey. No one witnessed the conversation
between Jones and Rivard, the conversation was not recorded in
any way, and Jones did not sign any kind of statement or report
indicating that he had made an identification. At the preliminary
examination, Jones repeatedly denied having identified the
shooter. Defendant objected to Rivard’s testimony about the
showup identification and filed a motion to suppress this evi-
32 505 MICH 31 [Mar

dence. The circuit court, Darnell Jackson, J., denied the motion to
suppress and, after a trial, the jury found both men guilty of
conspiracy. Both men filed motions for a directed verdict or a new
trial. The circuit court denied defendant’s motion but granted
Ramsey’s, ruling that there was insufficient evidence to sustain
his conviction. Defendant appealed. The Court of Appeals, TALBOT,
C.J., and BECKERING and M. J. KELLY, JJ., affirmed defendant’s
conviction in an unpublished per curiam opinion issued July 6,
2017 (Docket No. 332190), and he sought leave to appeal. The
Supreme Court ordered and heard oral argument on the applica-
tion, directing the parties to file supplemental briefs addressing
whether the showup was impermissibly suggestive; if so, whether
the identification was nonetheless reliable; and whether, if im-
properly admitted, any error was harmless. 503 Mich 910 (2018).
In an opinion by Justice CAVANAGH, joined by Chief Justice
MCCORMACK and Justices VIVIANO, BERNSTEIN, and CLEMENT, in lieu
of granting leave to appeal, the Supreme Court held:
The showup identification procedure employed in this case
was suggestive because it indicated to the witness that the police
suspected defendant. The suggestiveness was unnecessary be-
cause there was no reason, except perhaps police convenience, to
use a suggestive procedure, and the showup was not reliable
under Neil v Biggers, 409 US 188 (1972). This error was not
harmless because the prosecution’s case was significantly less
persuasive without the showup. Accordingly, the Court of Appeals
judgment was reversed.
1. Due process protects criminal defendants against the in-
troduction of evidence of, or tainted by, unreliable pretrial iden-
tifications obtained through unnecessarily suggestive procedures.
Exclusion of evidence of an identification is required when the
identification procedure was suggestive, the suggestive nature of
the procedure was unnecessary, and the identification was unre-
liable. The inherently suggestive nature of showups has long been
beyond debate, particularly when the showup is conducted in a
police stationhouse, and the use of showups continues to receive
critical treatment from courts and commentators.
2. The showup procedure in this case was suggestive because
defendant was shown singly to the witness. Although the prosecu-
tion argues that Rivard did not suggest that either of the men was
involved in a criminal investigation, Jones could plainly see that
defendant and Ramsey were involved in a criminal investigation,
given that they were the subjects of a showup. Further, Jones
testified that he understood he was taken to see defendant for the
purpose of making an identification. Also, neither the procedural
2020] PEOPLE V SAMMONS 33

safeguards recommended by the Prosecuting Attorneys Association

of Michigan nor those recommended by the United States Depart-
ment of Justice for conducting showups were used.
3. The showup in this case was not necessary. Defendant and
Ramsey were arrested minutes after the shooting, and Jones did
not arrive at the police station until 4 to 5 hours later. Further,
there was nothing in the record to indicate that the police could not
have taken more time if necessary to set up a corporeal or
photographic lineup since defendant and Ramsey were in custody.
The crime had been long over by the time the showup was
conducted, and there was no ongoing danger that police were
better able to address by dispensing with a reliable identification
procedure.
4. The evidence produced by an unnecessarily suggestive iden-
tification procedure is not automatically excluded unless the im-
proper police conduct created a substantial likelihood of misiden-
tification. To determine whether an unnecessarily suggestive
identification is nevertheless reliable, a court considers the nonex-
clusive list of factors set out in Biggers: (1) the opportunity of the
witness to view the criminal at the time of the crime, (2) the
witness’s degree of attention, (3) the accuracy of the witness’s prior
description of the criminal, (4) the level of certainty demonstrated
at the confrontation, and (5) the time between the crime and the
confrontation. In this case, Jones’s opportunity to view the crimi-
nal at the time of the crime was poor. Although Jones’s attention
was drawn to the shooting, he testified that he was not paying
attention to the physical features of the person he was asked to
identify. While the description Jones gave before viewing defen-
dant and Ramsey matched them in a general sense, the most
specific corroborating details he gave did not match: neither man
was heavy, neither man was bald, and neither man had a long
beard. Further, the partial license plate number that Jones re-
membered did not match that of the Jeep defendant and Ramsey
were driving. Jones’s level of certainty at the confrontation was
difficult to evaluate because not only was it not documented, Jones
denied even having made an identification. While the relatively
short time between the crime and confrontation did provide some
indicia of reliability, considering all the Biggers factors and other
evidence relied on by the trial court, the prosecution did not meet
its burden to show that the indicia of reliability were strong enough
to outweigh the corrupting effect of the suggestive circumstances.
5. The error of admitting the evidence from the unnecessarily
suggestive and unreliable showup was not harmless beyond a
reasonable doubt. When evaluating whether erroneously admit-
34 505 MICH 31 [Mar

ted testimony was harmless beyond a reasonable doubt, a court

must determine the probable effect of that testimony on the
minds of an average jury. Reversal is required if the average jury
would have found the prosecution’s case significantly less persua-
sive without the erroneously admitted testimony. In this case,
without the showup, the prosecution’s only evidence was a
compilation of security camera videos and Watkins’s identifica-
tion of the Jeep, both of which were far from conclusive. Accord-
ingly, the prosecution’s case was significantly less persuasive
without the showup identification evidence.
Court of Appeals judgment reversed; showup evidence sup-
pressed; case remanded to the Saginaw Circuit Court for a new
trial.
Justice ZAHRA, joined by Justice MARKMAN, dissenting, agreed
that the identification procedure employed at the police station
was suggestive and unnecessary but did not believe that the
procedure was so unduly suggestive as to lead to a substantial
likelihood of misidentification, noting that defendant and Ramsey
appeared before Jones in separate interview rooms and in street
clothes, unrestrained and unaccompanied by any law enforcement
officers, with nothing to suggest to Jones or any objective observer
that Ramsey and defendant were suspects in any crime. An
application of the Biggers factors indicated that Jones had an
ample opportunity to view the defendant given that Jones had an
unobstructed view of the shooting, which occurred about 20 to 25
feet away on a clear, sunny afternoon; Jones paid detailed atten-
tion to the incident and remained calm throughout it; Jones
accurately described defendant’s general physical characteristics
and clothing; and Jones’s identification of defendant occurred
while the incident was fresh in Jones’s mind. Viewed under the
totality of the circumstances and weighed against the corrupting
effect of the suggestiveness of this procedure, and considering the
more recent caselaw applying the Biggers factors, Jones’s identifi-
cation of defendant retained strong indicia of reliability, and
therefore the trial court did not clearly err by admitting the
evidence that Jones had identified defendant as the shooter.
Justice ZAHRA would have affirmed the trial court and the Court of
Appeals.

1. EVIDENCE — PRETRIAL IDENTIFICATIONS — DUE PROCESS.

Due process protects criminal defendants against the introduction
of evidence of, or tainted by, unreliable pretrial identifications
obtained through unnecessarily suggestive procedures; exclusion
of evidence of an identification is required when the identification
2020] PEOPLE V SAMMONS 35
OPINION OF THE COURT
procedure was suggestive, the suggestive nature of the procedure
was unnecessary, and the identification was unreliable.

2. EVIDENCE — PRETRIAL IDENTIFICATIONS — SHOWUPS — SUGGESTIVENESS.

The procedure in which the police show a criminal suspect singly to
a witness for purposes of identification, known as a “showup,” is
inherently suggestive for purposes of determining whether the
introduction of evidence of a pretrial identification violated a
defendant’s right to due process.

3. EVIDENCE — PRETRIAL IDENTIFICATIONS — EXCLUSION OF EVIDENCE — RELI-

ABILITY OF IDENTIFICATION.

The evidence produced by an unnecessarily suggestive identifica-

tion procedure with respect to a criminal defendant is not
automatically excluded unless the improper police conduct cre-
ated a substantial likelihood of misidentification; to determine
whether an unnecessarily suggestive identification was neverthe-
less reliable, a court considers the nonexclusive list of factors set
out in Neil v Biggers, 409 US 188 (1972): (1) the opportunity of the
witness to view the criminal at the time of the crime, (2) the
witness’s degree of attention, (3) the accuracy of the witness’s
prior description of the criminal, (4) the level of certainty demon-
strated at the confrontation, and (5) the time between the crime
and the confrontation.

Dana Nessel, Attorney General, Fadwa A.

Hammoud, Solicitor General, John A. McColgan, Jr.,
Prosecuting Attorney, and Carmen R. Fillmore, Assis-
tant Prosecuting Attorney, for the people.

Travis T. Sammons in propria persona, and Warner

Norcross and Judd LLP (by Gaëtan Gerville-Réache,
Ashley G. Chrysler, and Kelsey M. Dame) for defendant.

Amici Curiae:

David A. Moran, Imran J. Syed, and Megan

Richardson for Kenneth Wyniemko and the Innocence
Project.

CAVANAGH, J. Defendant, Travis T. Sammons, was

convicted by a jury of conspiracy to commit open
murder following a trial in which the jury was told that
36 505 MICH 31 [Mar
OPINION OF THE COURT

a witness identified defendant as the shooter during a

“showup”1 identification conducted by the police follow-
ing the shooting. Defendant has appealed, arguing
that the showup identification violated his constitu-
tional right to due process, that the evidence of the
showup should have been suppressed, and that he is
entitled to a new trial. We agree. The questions neces-
sary to resolve this appeal include: whether the iden-
tification procedure conducted by police was sugges-
tive, whether any suggestiveness was necessary,
whether the witness’s identification was nonetheless
reliable, and whether any error was harmless. We hold
that the showup identification procedure was sugges-
tive because it indicated to the witness that police
suspected defendant; the suggestiveness was unneces-
sary because there was no reason, except perhaps
police convenience, to use a suggestive procedure; and
the showup was not reliable under Neil v Biggers, 409
US 188, 201; 93 S Ct 375; 34 L Ed 2d 401 (1972).
Finally, the error was not harmless because the pros-
ecution’s case was significantly less persuasive without
the showup. Accordingly, we reverse the Court of
Appeals judgment, suppress any evidence from the
showup, and remand to the Saginaw Circuit Court for
a new trial. In light of this resolution, we decline to
address defendant’s remaining issues.

I. FACTS AND PROCEDURAL HISTORY

Humberto Casas was shot on the street in Saginaw

on June 21, 2015, at approximately 1:00 p.m. Sixteen-
year-old DyJuan Jones witnessed the shooting, as did
Rosei Watkins. Jones was riding in the backseat of a
car being driven by his mother when he heard the

1
A showup is “[a] police procedure in which a suspect is shown singly
to a witness for identification . . . .” Black’s Law Dictionary (11th ed).
2020] PEOPLE V SAMMONS 37
OPINION OF THE COURT

shots, and Watkins was driving with her grandson in

her own car. Jones saw a light gray Jeep, its driver, and
another man who was wielding a gun. Jones did not
note the model of the Jeep and “wasn’t paying atten-
tion” to the gunman. Jones described both men as
black and wearing white shirts. Jones described the
driver as weighing about 320 pounds with a long beard,
and the gunman as being bald and wearing black
pants. Watkins, on the other hand, thought the driver
was of average build. Jones saw the gunman shoot a
Hispanic man—Casas. The gunman fired three shots,
and then paused as his gun seemed to jam. He then
fired more shots. Jones did not see the gunman get into
the Jeep, but he saw the Jeep leave going 60 to 70 miles
per hour. Jones told the police that the Jeep’s license
plate number contained either “CE” or “GE.” Jones and
his mother, a nurse, initially left but then returned to
the scene for her to render aid. Casas died from his
injuries.
About 10 to 20 minutes later, the police pulled over
defendant Travis Sammons and Dominque Ramsey in
a silver Jeep Commander that had the license plate
number DFQ 9593. Both men wore white shirts. Ram-
sey weighed about 150 pounds at the time, and had
facial hair that one police officer characterized as
“short stubble.” Although defendant had a short hair-
style, he was not bald. The officer ordered Ramsey out
of the Jeep, searched him, handcuffed him, and put
him into the back of the patrol car. The officer then
ordered defendant out of the Jeep and searched him.
During the search, the officer noticed that defendant’s
hands were sweaty, which the officer found “pretty
odd.” With Ramsey’s permission, the officer searched
the Jeep. Nothing of interest was found in the searches
of the men or the Jeep. Both men were taken to the
Saginaw Police Department, where they were de-
38 505 MICH 31 [Mar
OPINION OF THE COURT

tained. A photo of the Jeep was taken and shown to

Watkins, who identified it as the Jeep from the shoot-
ing.
Jones and his mother went to the police station early
that evening. Michigan State Police Detective Ser-
geant David Rivard met them and organized a showup
identification of defendant and Ramsey. At the prelimi-
nary examination, Detective Sergeant Rivard ex-
plained, “it’s common that what we can do is call a
show up, is to show the possible suspects to—excuse
me—show the possible witnesses’ [sic] the possible
suspects to see if in fact we are doing our investigation
in the right direction.” He further explained that the
showup was conducted because suspects had been
identified relatively quickly.
The station has three interview rooms, and the
detective sergeant put defendant in one interview
room and Ramsey in another. The men were alone in
their respective rooms, wore their street clothes, and
were unrestrained. The detective sergeant took Jones
to the rooms for the purpose of making an identifica-
tion. The detective sergeant testified there was nothing
out of the ordinary about conducting a showup this
way. Jones and the detective sergeant would later
disagree about what happened next.
Jones would say that he could identify neither man
as having been involved in the shooting, while the
detective sergeant would say that Jones identified
defendant as the shooter but did not identify Ramsey.
No one witnessed the conversation between Jones and
the detective sergeant, and the conversation was not
recorded in any way. Jones did not sign any kind of
statement or report indicating that he had made an
identification.
2020] PEOPLE V SAMMONS 39
OPINION OF THE COURT

Later, the police collected videos from nine security

cameras near the crime scene, each showing a Jeep
Commander. The police then edited the security videos
together with the dashboard camera view of the traffic
stop into one video compilation. One clip showed a Jeep
Commander arriving near the crime scene. Another
clip showed a Jeep Commander stopping at a house for
several minutes, at least one person getting out of the
Jeep and going into the house, then at least one person
getting back into the Jeep, and it leaving. Each clip in
the compilation showed a Jeep Commander, but none
of the clips showed the shooting or the license plates of
the vehicles they depicted.
Defendant and Ramsey were both charged with
open murder, MCL 750.316; conspiracy to commit
murder, MCL 750.157a; being a felon in possession of a
firearm, MCL 750.224f; and having a firearm during
the commission of a felony, MCL 750.227b(1). Jones
was repeatedly questioned about making an identifi-
cation at the preliminary examination, and every time
he denied making an identification. Specifically, Jones
said, “I seen the gun, I can’t identify the person who
was really [sic].” Defendant objected to Detective Ser-
geant Rivard’s testimony about the showup identifica-
tion and filed a motion to suppress. The circuit court
issued a written opinion that implicitly acknowledged
that the showup was unnecessarily suggestive, but the
court nonetheless concluded that the identification was
reliable:
[T]he identification occurred within hours of the homicide,
while the details of the crime were still fresh in the
witness’ mind. Rivard explained that the show-up proce-
dure was used as an investigative tool to determine if their
investigation was headed in the right direction. Although
Defendants were singled out because they were presented
alone, there is no evidence that Jones was pressured to
40 505 MICH 31 [Mar
OPINION OF THE COURT

identify either man nor was he told that the police had
arrested the suspects. The fact that Jones identified
Sammons as the gunman, but did not identify Ramsey,
indicates that he was relying on his memory of the crime
and was not influenced by the suggestiveness of the
procedure. Based on the totality of the circumstances, the
Court finds that the out-of-court identification was reli-
able and did not violate due process.

The circuit court thus denied the motion to suppress.

At trial, the prosecution offered the video compila-
tion, as well as the testimony of Jones and Watkins.
Jones acknowledged that he had taken part in the
showup procedure, but he once again denied having
made any identification. Detective Sergeant Rivard tes-
tified that Jones had identified defendant at the
showup. Watkins testified that she saw the offenders
flee in a “[g]ray, silver Jeep, whatever you call those
things.” She specifically denied being able to estimate
the age of the vehicle she saw: “I don’t know the
difference, new, old. I know it looked like a Jeep.” She
also identified a photo of the Jeep that Ramsey and
defendant were stopped in as the Jeep from the scene.
However, she did not identify any distinguishing fea-
tures other than the color and make. She said only, “It
was a box.” A jury found both men guilty of the con-
spiracy count and acquitted them on the remaining
counts.
Both men filed motions for a directed verdict or a new
trial. The circuit court denied defendant’s motion but
granted Ramsey’s, ruling that there was insufficient
evidence to sustain his conviction. The Court of Appeals
affirmed defendant’s conviction, and he sought leave to
appeal here. We ordered oral argument on the applica-
tion, directing the parties to file supplemental briefs
addressing whether the showup was impermissibly sug-
gestive; if so, whether the identification was nonetheless
2020] PEOPLE V SAMMONS 41
OPINION OF THE COURT

reliable; and whether, if improperly admitted, any error

was harmless. People v Sammons, 503 Mich 910, 910
(2018).

II. STANDARD OF REVIEW

We review a trial court’s findings of fact in a sup-

pression hearing for clear error. People v Hammerlund,
504 Mich 442, 450; 939 NW2d 129 (2019). The appli-
cation of law to those facts is a constitutional matter
that this Court reviews de novo. People v Smith, 498
Mich 466, 475; 870 NW2d 299 (2015).

III. ANALYSIS

Due process protects criminal defendants against

“the introduction of evidence of, or tainted by, unreli-
able pretrial identifications obtained through unneces-
sarily suggestive procedures.” Moore v Illinois, 434 US
220, 227; 98 S Ct 458; 54 L Ed 2d 424 (1977). Exclusion
of evidence of an identification is required when (1) the
identification procedure was suggestive, (2) the sugges-
tive nature of the procedure was unnecessary, and
(3) the identification was unreliable. Perry v New
Hampshire, 565 US 228, 238-239; 132 S Ct 716; 181 L
Ed 2d 694 (2012). See also People v Kurylczyk, 443
Mich 289, 302-303; 505 NW2d 528 (1993) (opinion by
GRIFFIN, J.); id. at 318 (BOYLE, J., concurring in part).2

A. SUGGESTIVENESS

The inherently suggestive nature of showups has

long been beyond debate. Showups have been called

2
In Kurylczyk, almost 20 years before Perry, the defendant argued
that a photographic lineup and a corporeal lineup each violated his
due-process rights. In an opinion by Justice GRIFFIN, joined in relevant
parts by Justice BOYLE, we agreed that the photographic lineup was
42 505 MICH 31 [Mar
OPINION OF THE COURT

“the most grossly suggestive identification procedure

now or ever used by the police.” Wall, Eye-Witness
Identification in Criminal Cases (New York: Charles C
Thomas, 1965), p 28. More than 50 years ago, the
United States Supreme Court observed that “[t]he prac-
tice of showing suspects singly to persons for the pur-
pose of identification, and not as part of a lineup, has
been widely condemned.” Stovall v Denno, 388 US 293,
302; 87 S Ct 1967; 18 L Ed 2d 1199 (1967), abrogated in
part on other grounds by Griffith v Kentucky, 479 US
314 (1987). Almost 80 years ago, Professor John Henry
Wigmore opined that an identification produced by a
showup is “next to worthless” and that “there is no
excuse for jeopardizing the fate of innocent men by such
clumsy, antiquated methods . . . .” 4 Wigmore, Evidence
(3d ed), § 1130, p 214 n 2.
The procedure continues to receive critical treat-
ment.3 The nature of the suggestion is apparent: “when
suggestive, Kurylczyk, 443 Mich at 306 (opinion by GRIFFIN, J.) (“[W]e do
not question his contention that his photograph stood out from the
others in a suggestive fashion.”), and we described the remaining
inquiry as whether “under the totality of the circumstances there [was]
a substantial likelihood of misidentification,” id. at 306; see also id. at
318 (BOYLE, J., concurring in part). To answer that question, we
considered the factors discussed in Biggers, 409 US at 201. Kurylczyk,
443 Mich at 306-308, 310-311 (opinion by GRIFFIN, J.). Although we did
not separately address necessity, it does not appear to have been at
issue. With respect to the corporeal lineup, we held that it was not
impermissibly suggestive. Id. at 313-314. Consequently, there was no
reason to inquire into reliability under the Biggers factors. Our analysis
in Kurylczyk was not substantively different from the three-step analy-
sis of Perry that we apply today. If the demarcation of the steps was less
clear then than now, that could be a product of the evolution of the
relevant federal caselaw. Although we think Kurylczyk is entirely
consistent with Perry, obviously we would be bound to follow Perry to the
extent these cases might be inconsistent.
3
See Young v State, 374 P3d 395, 421 (Alas, 2016) (“Alaska courts
have long restricted the use of showups as an identification procedure to
where it is necessary under the circumstances.”); Commonwealth v
2020] PEOPLE V SAMMONS 43
OPINION OF THE COURT

the witness is shown only one person . . . , [the witness]

is tempted to presume that he is the person [the police
suspect].” People v Gray, 457 Mich 107, 111; 577 NW2d
92 (1998) (quotation marks and citation omitted). Said
another way, “a one-man showup conveys a clear
message that the police suspect this man.” Ex parte
Frazier, 729 So 2d 253, 255 (Ala, 1998) (quotation
marks and citation omitted).4
Additionally, if a witness makes an incorrect identi-
fication from among several choices in a lineup, errors
will often be spread to “fillers,”5 creating a harmless
Figueroa, 468 Mass 204, 217; 9 NE3d 812 (2014) (“A showup identifica-
tion is disfavored because it is inherently suggestive, but it violates due
process only where the defendant proves by a preponderance of the
evidence that it is unnecessarily suggestive”) (quotation marks and
citation omitted); Cicchini & Easton, Reforming the Law on Show-up
Identifications, 100 J Crim L & Criminology 381, 389 (2010) (“[T]he way
in which show-ups are necessarily conducted makes them incredibly
suggestive.”); Lee, No Exigency, No Consent: Protecting Innocent Sus-
pects from the Consequences of Non-exigent Show-ups, 36 Colum Hum
Rts L Rev 755, 759 (2005) (“[T]he suggestiveness of the [showup]
procedure outweighs its reliability when conducted under non-exigent
circumstances.”); People v Brisco, 99 NY2d 596, 613; 788 NE2d 611; 758
NYS2d 262 (2003) (Smith, J., dissenting) (“[A] showup . . . is inherently
suggestive and for that reason strongly disfavored. That showup iden-
tifications are inherently suggestive means that they are likely to result
in the identification of an innocent person as the perpetrator of a crime.
Despite their inherent suggestiveness, showup identifications are per-
missible if exigent circumstances require immediate identification or if
the suspects are captured at or near the crime scene and can be viewed
by the witness immediately.”) (quotation marks and citations omitted).
4
See State v Lawson, 352 Or 724, 783; 291 P3d 673 (2012) (“[T]he
witness is always aware of who police officers have targeted as a
suspect.”); United States v Brown, 471 F3d 802, 804 (CA 7, 2006) (“[T]he
single photo or one-person showup implies that the police have their man
and suggests that the witness give assent.”); United States v Funches, 84
F3d 249, 254 (CA 7, 1996) (“[P]resumably the police would not bring in
someone that they did not suspect had committed the crime.”).
5
Fillers, also known as “foils,” are innocent people used in police
lineups.
44 505 MICH 31 [Mar
OPINION OF THE COURT

“known error.” Wells, Police Lineups: Data, Theory,

and Policy, 7 Psychol Pub Pol’y & L 791, 794 (2001).
But in a showup, any mistaken identification will fall
on the suspect. Given this, the empirical finding that
innocent suspects are more often identified in showups
than lineups is unsurprising. Steblay et al, Eyewitness
Accuracy Rates in Police Showup and Lineup Presen-
tations: A Meta-Analytic Comparison, 27 Law & Hum
Behav 523, 533 (2003).
The suggestiveness of a showup is aggravated when
it is conducted in a police stationhouse. In holding
stationhouse showups inadmissible as a matter of law,
New York’s highest court acknowledged this added
layer of suggestion: “Unreliability of the most extreme
kind infects showup identifications of arrested persons
held at police stations . . . .” People v Riley, 70 NY2d
523, 529; 517 NE2d 520 (1987). See also State v
Gordon, 185 Conn 402, 414; 441 A2d 119 (1981) (“The
circumstances of the station house show-up unneces-
sarily suggested to the victim that she should posi-
tively identify the defendant.”), overruled on other
grounds by State v Artis, 314 Conn 131 (2014).
In this case, all we need to observe in order to
conclude that the procedure was suggestive is that
defendant was shown singly to the witness.6 The pros-
ecution argues that the showup was not suggestive
because defendant was wearing his street clothes and
was not handcuffed or restrained. To be sure, the

6
The prosecution argues defendant was not shown “singly” to Jones
because Ramsey was present in the next room. The prosecution’s
attempt to characterize what happened as a two-person lineup is belied
by the circumstances—police were looking for two men and they showed
Jones two men. Rather than suggesting police were looking for this man,
the circumstances suggested police were looking for these men. The
suggestion is still clear. Even the detective sergeant who administered
the procedure characterized it as a showup. This was a showup.
2020] PEOPLE V SAMMONS 45
OPINION OF THE COURT

showup would have been more suggestive if defendant

had been shackled in a striped jumpsuit, but noting
other ways the showup could have been more sugges-
tive does not help us determine whether this showup
was suggestive.7
The prosecution argues that Detective Sergeant Ri-
vard did not suggest either of the men was involved in a
criminal investigation, but that is inaccurate. Taking
the detective sergeant at his word that he did not make
any sort of announcement about his suspicions, Jones
could plainly see for himself that defendant and Ramsey
were involved in a criminal investigation—being the
subject of a showup is involvement in a criminal inves-
tigation. Further, Jones testified that he understood he
was taken to see defendant for the purpose of making an
identification. The procedure the police used was cer-
tainly suggestive.8

7
The dissent similarly lists things the detective sergeant did or did
not do during the showup in furtherance of the proposition that the
procedure was not so suggestive as to require reversal. The main
problem with this line of reasoning is that we do not know what the
detective sergeant did or did not do because the detective sergeant failed
to record the procedure.
8
After acknowledging this showup was suggestive, the dissent goes
on to argue that “it could appear to Jones that Ramsey and defendant
were also present at the police station for innocent reasons.” We do not
need to imagine what Jones might have thought was going on when the
detective sergeant walked him down the hall, because Jones told us
what he was thinking. Jones testified that he believed he was being
asked to make an identification:
Q: During the course of the time that you were at the City of
Saginaw Police Department, were you walked down a hallway?
A: Yes sir.
Q: Purpose of identifying anybody?
A: Yes sir.
Given that Jones understood he was being asked to identify defendant
and Ramsey as participants in the shooting, it could not have appeared
46 505 MICH 31 [Mar
OPINION OF THE COURT

Fair and reliable identification procedures are

not something that should be controversial in Michi-
gan’s law enforcement community. Putting aside
that showups were considered “antiquated” in 1940
and have been “widely condemned” since at least
the 1960s, in 2015 the Prosecuting Attorneys Associa-
tion of Michigan (PAAM) published best practices that
advised agencies to provide clear written policies
on conducting identifications and to provide training
to officers on minimizing contamination. Prosecuting
Attorneys Association of Michigan, Best Practices
Recommendation: Eyewitness Identification and
Procedures, available at <https://www.michigan
prosecutor.org/files/PAAM_Best_Practices_Eyewitness
_Identification.pdf> (accessed February 14, 2020)
[https://perma.cc/5LM4-BJLQ]. Although PAAM dis-
cussed photo arrays and lineups, it did not advise
agencies to conduct showups. Id. PAAM recommended
that identifications be conducted by an officer who is
not aware of who the suspect is to avoid unintentional
contamination.9 Id. PAAM further recommended
giving standardized instructions to witnesses and
documenting the entire procedure, including the
witness’s level of confidence in the identification. Id.
These best practices were not employed in this case.

to Jones that defendant and Ramsey were at the police station for
innocent reasons unless Jones thought the detective sergeant was asking
him to identify random people at the station as participants in the crime.
Jones never testified to that, and we decline to entertain that possibility.
9
Blind administration of identification procedures avoids subtle and
even unintentional suggestion through “tone of voice, pauses, demeanor,
facial expressions, and body language,” which may be “difficult to detect
and prevent.” Lawson, 352 Or at 779, citing Haw & Fisher, Effects of
Administrator-Witness Contact on Eyewitness Identification Accuracy,
89 J Applied Psychol 1106, 1110 (2004). The administrator cannot
unintentionally suggest whom police suspect if he or she does not know.
Of course, blind administration of a showup is of little value as the
procedure itself leaves no doubt whom the police suspect.
2020] PEOPLE V SAMMONS 47
OPINION OF THE COURT

Even earlier, in 1999, the United States Department

of Justice (DOJ) offered similar advice. United States
Department of Justice, Eyewitness Evidence: A Guide
for Law Enforcement, available at <https://www.
ncjrs.gov/pdffiles1/nij/178240.pdf> (accessed Febru-
ary 14, 2020) [https://perma.cc/8EUR-L28V]. The DOJ
advised that because there was “inherent suggestive-
ness” in a showup, the procedure should only be used
“[w]hen circumstances require,” and in that event the
suggestiveness should be minimized with the use of
procedural safeguards. Id. at 27. Like the PAAM best
practices, the DOJ-suggested safeguards were not
used here. The showup was suggestive, without any
procedures used to mitigate its suggestiveness.

B. NECESSITY

None of this is to say that the police may never

conduct a showup, despite its suggestiveness. Having
concluded that the identification procedure was sug-
gestive, we next ask whether the suggestiveness of the
procedure was necessary.10 There are instances in

10
The trial court declined to address suggestiveness or necessity and
moved straight to the reliability portion of the analysis. The Court of
Appeals conflated the ideas of suggestiveness and necessity, failing to
really grapple with either. People v Sammons, unpublished per curiam
opinion of the Court of Appeals, issued July 6, 2017 (Docket No. 332190),
p 3. The Court of Appeals acknowledged that defendant was shown singly
to Jones, although it ignored the setting of the showup in the police
stationhouse. Id. Then, after noting ways in which the procedure was not
suggestive, the Court of Appeals concluded, “[T]o the extent that defen-
dant’s appearing in a room alone was suggestive, there is no indication
that comments or actions by the police rendered the identification
procedure unnecessarily suggestive.” Id. at 3-4. With regard to sugges-
tiveness, as explained earlier, noting ways in which a procedure could
have been more suggestive does not address the ways it was suggestive.
With regard to necessity, the Court of Appeals did not engage in any
analysis.
48 505 MICH 31 [Mar
OPINION OF THE COURT

which a fair and nonsuggestive procedure simply is not

possible. For example, in Stovall the only witness to a
murder had been stabbed 11 times and was in the
hospital awaiting a major surgery needed to save her
life. Stovall, 388 US at 295. The police brought their
suspect to the hospital where he was shown singly to
the witness. Id. However, she was the only witness who
could confirm or deny the suspect’s involvement and
“[n]o one knew how long [the witness] might live.” Id.
at 302 (quotation marks and citation omitted). The
circumstances of that case made the showup necessary,
and those circumstances certainly do not present the
only situation in which a showup might be necessary.
But we do not need to explore the boundaries of what
amounts to necessity or adopt any specific rule to see
that the showup here was not necessary. The prosecu-
tion argues that the showup was necessary because it
occurred relatively soon after the crime, the investiga-
tion was moving quickly, and police were trying to
determine whether the investigation was headed “in the
right direction.” We disagree. Defendant and Ramsey
were arrested minutes after the shooting, and Jones did
not arrive at the police station until 4 to 5 hours later.
Further, there is nothing in the record to indicate that
the police could not have taken more time if necessary to
set up a corporeal or photographic lineup since defen-
dant and Ramsey were in custody. The crime had been
long over by the time the showup was conducted, and
there was no ongoing danger that the police were better
able to address by dispensing with a reliable identifica-
tion procedure. There was no necessity justifying the
showup procedure here.11

11
The procedures and safeguards discussed by PAAM and the DOJ are,
in those organizations’ opinions, the best practices for obtaining the most
accurate and reliable evidence from eyewitnesses. The introductory
message to the DOJ’s guide explains: “[I]t is absolutely essential that
2020] PEOPLE V SAMMONS 49
OPINION OF THE COURT
C. RELIABILITY

Even though the identification procedure was un-

necessarily suggestive, the evidence it produced could
still be admissible unless the improper police conduct
created a “substantial likelihood of misidentification.”12
Biggers, 409 US at 201; Perry, 565 US at 239 (quoting
Biggers); People v Thomas, 501 Mich 913, 913 (2017). A
per se rule of automatic exclusion of unnecessarily
suggestive identification procedures was rejected by
the United States Supreme Court in favor of a “totality
of the circumstances” approach aimed at balancing
three factors: preventing unreliable eyewitness testi-
mony from getting to a jury, deterring the police from
conducting unnecessarily suggestive procedures, and
eyewitness evidence be accurate and reliable. One way of ensuring we,
as investigators, obtain the most accurate and reliable evidence from
eyewitnesses is to follow sound protocols in our investigations.” Eye-
witness Evidence: A Guide for Law Enforcement, at iii. Indeed, as one
commentator has astutely pointed out, unnecessarily suggestive iden-
tification procedures “do not further any valid law enforcement inter-
est.” Rosenburg, Rethinking the Right to Due Process in Connection
With Pretrial Identification Procedures: An Analysis and a Proposal, 79
Ky L J 259, 291 (1990). Rather, “an unnecessarily suggestive identifi-
cation procedure simply creates unreliable evidence where reliable
evidence could have been gathered. It is not a case where good ends
justify bad means—the end result of an unnecessarily suggestive
procedure is worthless precisely because of the means used.” Id. In his
haste, the detective sergeant did not just jeopardize the fate of a
potentially innocent man, he also might have compromised his inves-
tigation and tainted the testimony that could have proved to be the
prosecution’s best evidence. Not only was conducting a showup unnec-
essary, it was counterproductive to efforts to obtain the most accurate
and reliable evidence.
12
The dissent acknowledges that the showup was suggestive and
unnecessary, but concludes that the showup should be admissible
nonetheless because it retains strong indicia of reliability under the
Biggers factors as weighed against the extent of its suggestiveness. We
not only disagree about the extent of the suggestiveness of the showup,
we also disagree with the dissent’s application of the Biggers factors.
50 505 MICH 31 [Mar
OPINION OF THE COURT

the effect on the administration of justice. Manson v

Brathwaite, 432 US 98, 112-113; 97 S Ct 2243; 53 L Ed
2d 140 (1977).13
We apply the nonexclusive list of factors set out in
Biggers to determine whether an unnecessarily sug-
gestive identification is reliable. Kurylczyk, 443 Mich
at 306 (opinion by GRIFFIN, J.); id. at 318 (BOYLE, J.,
concurring in part). The factors are (1) “the opportu-

13
The Court observed that a per se rule would go too far in the first
regard by excluding testimony that is reliable notwithstanding its
having been obtained through an unnecessarily suggestive procedure.
Manson, 432 US at 112. While the police would surely be deterred by
a per se rule of exclusion, the Court opined that “[t]he police will guard
against unnecessarily suggestive procedures under the totality rule, as
well as the per se one, for fear that their actions will lead to the
exclusion of identifications as unreliable.” Id. The Court was most
concerned with the administration of justice in that if the trier of fact
was denied “reliable evidence” by a per se rule of exclusion, then “it
may result, on occasion, in the guilty going free.” Id. Conversely, if
these incentives do not operate on actors in the criminal justice system
as the Manson Court predicted, the result may be conviction of the
innocent. Other states have interpreted their state protections differ-
ently than the federal protection in this regard. See State v Harris, 330
Conn 91, 115; 191 A3d 119 (2018) (holding that the Biggers factors do
not provide a sufficient measure for reliability and that state due-
process protections require a different reliability analysis); Young, 374
P3d at 426-427 (holding that the Biggers factors do not provide a
sufficient measure for reliability and that state due-process protec-
tions require a different reliability analysis); Lawson, 352 Or at
739-751 (refining an existing parallel state reliability analysis based
on scientific and legal developments); State v Henderson, 208 NJ 208,
285; 27 A3d 872 (2011) (holding that the Biggers factors do not provide
a sufficient measure for reliability, do not deter improper police
conduct, and overstate the jury’s innate ability to evaluate eyewitness
testimony and that state due-process protections require a different
reliability analysis); People v Adams, 53 NY2d 241, 250-252; 423 NE2d
379 (2005) (holding that the state’s due-process requirements require
per se exclusion of unnecessarily suggestive showups); Commonwealth
v Johnson, 420 Mass 458, 465; 650 NE2d 1257 (1995) (holding that the
state’s due process requirements require per se exclusion of unneces-
sarily suggestive showups). We have not been asked to reach that
question in this case.
2020] PEOPLE V SAMMONS 51
OPINION OF THE COURT

nity of the witness to view the criminal at the time of the

crime,” (2) “the witness’ degree of attention,” (3) “the
accuracy of his prior description of the criminal,” (4) “the
level of certainty demonstrated at the confrontation,”
and (5) “the time between the crime and the confronta-
tion.” Manson, 432 US at 114 (applying the Biggers
factors to determine reliability of a witness identifica-
tion). In Perry, the Court framed the inquiry as follows:
An identification infected by improper police influ-
ence . . . is not automatically excluded. Instead, the trial
judge must screen the evidence for reliability pretrial. If
there is “a very substantial likelihood of irreparable mis-
identification,” the judge must disallow presentation of the
evidence at trial. But if the indicia of reliability are strong
enough to outweigh the corrupting effect of the police-
arranged suggestive circumstances, the identification evi-
dence ordinarily will be admitted, and the jury will ulti-
mately determine its worth.[14]

Starting with the first Biggers factor, Jones’s oppor-

tunity to view the criminal at the time of the crime was,

14
Perry, 565 US at 232, quoting Simmons, 390 US at 384. With respect
to the burden of proof, in Kurylczyk, we held that “In order to sustain a
due process challenge, a defendant must show that the pretrial identifi-
cation procedure was so suggestive in light of the totality of the circum-
stances that it led to a substantial likelihood of misidentification.” Id. at
302 (opinion by GRIFFIN, J.), citing Biggers, 409 US at 196. However, while
“[t]he defendant has the initial burden of proving that the identification
procedure was unnecessarily suggestive,” when addressing the Biggers
factors, the prosecutor bears the burden of proof. State v Perri, 164 NH
400, 404; 58 A3d 627 (2012). See also English v Cody, 241 F3d 1279,
1282-1283 (CA 10, 2001) (“It is only after the defendant meets this burden
[of showing that an identification procedure is unnecessarily suggestive]
that the burden shifts to the government to prove that the identification
was reliable independent of the suggestive procedure.”). This makes
sense given that, as noted, “the trial judge must screen the evidence for
reliability pretrial” in order to determine whether “the indicia of reliabil-
ity are strong enough to outweigh the corrupting effect of the police-
arranged suggestive circumstances . . . .” Perry, 565 US at 232.
52 505 MICH 31 [Mar
OPINION OF THE COURT

on balance, poor. While the circumstances of Biggers are

not a threshold or litmus test for weighing this factor in
favor of a finding of reliability, they are a useful refer-
ence point for comparison purposes. In Biggers, the
witness was the victim of a violent sexual assault.
Biggers, 409 US at 193-194. There, in addition to
viewing the defendant in adequate lighting, the witness
was forced to face the defendant “directly and inti-
mately” and was “no casual observer.” Id. at 200. She
was with her assailant for between 15 and 30 minutes.
Id. at 194. By contrast, Jones was in the backseat of a
moving vehicle and the shooting took place across the
street on the opposite side of the car, some 20 to 25 feet
away. Jones’s mother sped away upon hearing the shots,
only to return when the suspects were gone. Jones had
less than a minute to view the scene and only a glancing
viewing opportunity. Although the crime occurred in
daylight, Jones testified, “I couldn’t get a good look.”
Unlike the victim in Biggers, Jones did not view the
defendant “directly and intimately” for an extended
period of time. Id. at 200. Instead, he was a “casual
observer.” Id. Jones’s limited opportunity to view the
defendant at the time of the crime does not provide
strong indicia of reliability.15
Regarding the second Biggers factor, Jones’s atten-
tion was drawn to the shooting, but Jones does not
appear to have focused on the physical features of the

15
The dissent argues that Jones had adequate opportunity to view the
crime based on events he was able to recount and his agreement that he
“had a pretty good . . . view of what was going on.” We agree Jones
seemed to be able to see the events of the shooting generally, and the
dissent’s discussion demonstrates that much. But Jones was not able to
correctly list distinguishing features of the shooter or driver, and by
Jones’s own account with regard to identifying the perpetrators, he
“couldn’t get a good look.” Jones’s view of the assailant is the pertinent
inquiry, and that view was poor.
2020] PEOPLE V SAMMONS 53
OPINION OF THE COURT

shooter. In Biggers, the witness faced her assailant

“directly and intimately” and was a “victim of one of
the most personally humiliating of all crimes.” Id. In
this case, to the extent that Jones was focused on the
scene, his testimony indicates that he was looking at
the Jeep, the driver of the Jeep, and the gun rather
than at the shooter. Jones testified his attention was
drawn by the gun: “I seen the gun, I can’t identify the
person who was really.” Given that the witness himself
testified he “wasn’t paying attention” to the physical
features of the person he was asked to identify, we do
not believe that his degree of attention provides strong
indicia of reliability.16
The description Jones gave before viewing defendant
and Ramsey matched them in a general sense. In
Biggers, the witness’s description included specific de-
tails of “approximate age, height, weight, complexion,
skin texture, build, and voice . . . .” Id. Here, Jones
described the pair as black men wearing white shirts
driving a Jeep, and those generalities matched defen-
dant and Ramsey. But the most specific corroborating
details he gave did not match. Both defendant and
Ramsey were the correct build to match the 150-pound
estimation Jones gave of both offenders, but neither
matched the description of the 320-pound driver given
by Jones. Neither defendant nor Ramsey was bald as
Jones described, and neither man had a “long beard” as
Jones described the driver. Jones also remembered a
partial license plate number as including “CE” or “GE,”

16
The dissent acknowledges Jones’s own claims of inattention but
would leave the matter to the jury. This approach fails to account for the
fact that the reliability of an identification is a threshold determination
to submitting the identification to a jury. See Moore, 434 US at 227;
Perry, 565 US at 239. When the question that the Biggers analysis is
meant to answer is whether an identification can go to a jury, it seems
less than helpful to leave that analysis to the jury.
54 505 MICH 31 [Mar
OPINION OF THE COURT

but the Jeep defendant and Ramsey were driving had

the license plate number “DFQ 9593.” Jones offered no
other specifics. A general characteristic such as gender
or skin tone will, by definition, match many people. So
too with general characteristics of automobiles. Jones’s
description was wrong about the most specific details of
the suspects, and therefore this factor does not provide
strong indicia of reliability.17
The level of certainty of the witness at the confronta-
tion is difficult to evaluate because it was not docu-
mented. In Biggers, the witness testified, “when I first
laid eyes on him, I knew that it was the individual,
because his face—well, there was just something that I
don’t think I could ever forget.” Id. at 195-196. In this
case, Jones denies even making an identification. The
detective sergeant testified that Jones identified defen-
dant, but the detective sergeant provided no informa-
tion about Jones’s level of certainty at the confrontation.
Since Jones denies even making the identification and,
at any rate, the prosecutor does not even claim Jones
had a high level of certainty, it is hard to see how this
could be a strong, or for that matter any, indication of
reliability.18

17
The dissent criticizes our analysis of the accuracy of Jones’s
description for focusing too heavily on the aspects of the description
Jones got wrong. However, our analysis does not focus on wrong over
right, but on specific over general. The third Biggers factor “helps the
court determine if and when the witness developed and expressed a
concrete and specific impression of the individual’s characteristics firm
enough to remain reliable despite the vagaries of time and the pressures
of any undue suggestiveness.” United States ex rel Kosik v Napoli, 814
F2d 1151, 1159 (CA 7, 1987). The more specific the characteristic, the
more relevance it has as to the accuracy of the description. We acknowl-
edge the most general aspects of Jones’s description matched defendant.
But that general description might have also matched hundreds or
thousands of others. The specific characteristics offered by Jones tell us
whether his description was accurate, and those did not match.
18
The dissent is incorrect that there is “no evidence” which with to
evaluate the fourth Biggers factor. It is true that the detective sergeant
2020] PEOPLE V SAMMONS 55
OPINION OF THE COURT

The time between the crime and confrontation, here

4 or 5 hours, is clearly much shorter than the span of 7
months in Biggers. Id. at 201. This is the sole Biggers
factor relied on by the trial court: “the details of the
crime were still fresh in the witness’ mind.” This factor
provides some indicia of reliability.
Lastly, the trial court reasoned, “[t]he fact that
Jones identified [defendant] as the gunman, but did
not identify Ramsey, indicates that he was relying on
his memory of the crime and was not influenced by the
suggestiveness of the procedure.” We disagree. That
the defendant did not identify both suspects does not
necessarily mean that he was not influenced by the
procedure. And that he only identified one of the two
men whom the police believed were involved in the
crime could equally support the opposite conclusion,
i.e., that he did not have a good vantage point and was
not paying close attention. Thus, absent some indica-
tion that Jones got a better look at the gunman’s face,
his inability to identify the driver does not make his
identification of defendant as the gunman more reli-
able. We do not believe that Jones’s failure to identify
Ramsey provides strong indicia of reliability.
Having reviewed the Biggers factors and other evi-
dence relied on by the trial court, we do not believe that
the prosecution has met its burden to show that the
indicia of reliability in this case “are strong enough to
outweigh the corrupting effect of the police-arranged
suggestive circumstances . . . .” Perry, 565 US at 232.
did not make a specific claim regarding Jones’s level of certainty. But
Jones was also present, and he denies making an identification at all.
Jones’s account is relevant evidence that the dissent does not address.
Instead, the dissent alludes to a police report that the prosecution
attempted to use to refresh Jones’s recollection. The dissent also argues
that this report is documentation of the identification procedure. How-
ever, the trial transcript gives us no clue as to what the report says, and
the report itself was not entered into evidence.
56 505 MICH 31 [Mar
OPINION OF THE COURT
D. HARMLESSNESS

Finally, having concluded that the showup was un-

necessarily suggestive and unreliable, we must deter-
mine whether the error of its admission was harmless.
As noted, introduction of a tainted identification vio-
lates the constitutional guarantee of due process.
Moore, 434 US at 227. The error was preserved with
the objection to Detective Sergeant Rivard’s testimony.
This Court reviews preserved constitutional errors to
determine whether the beneficiary of the error has
established that the error was harmless beyond a
reasonable doubt. Kurylczyk, 443 Mich at 315-316
(opinion by GRIFFIN, J.); id. at 318 (BOYLE, J., concur-
ring in part); People v Anderson (After Remand), 446
Mich 392, 406; 521 NW2d 538 (1994); People v Carines,
460 Mich 750, 774; 597 NW2d 130 (1999). When
evaluating whether erroneously admitted evidence
was harmless beyond a reasonable doubt, we must
“determine the probable effect of that testimony on the
minds of an average jury.” Kurylczyk, 443 Mich at 315
(opinion by GRIFFIN, J.) (quotation marks and citations
omitted); see also id. at 318 (BOYLE, J., concurring in
part). Reversal is required if the average jury “would
have found the prosecution’s case significantly less
persuasive without the erroneously admitted testi-
mony.” Id. (quotation marks and citation omitted). The
prosecution cannot show that the error in this case was
harmless beyond a reasonable doubt.
The prosecution argues that the admission of the
showup was harmless because the identification’s un-
reliability was exposed to the jury through cross-
examination and because the jury was instructed to
evaluate the reliability of the identification. Said an-
other way, the showup had so little value it could not
have affected the jury’s verdict. When an appellate
2020] PEOPLE V SAMMONS 57
OPINION OF THE COURT

court is considering harmlessness, it will always be the

case that the identification was unreliable. Further, it
should always be the case that defense counsel explored
reliability through cross-examination and the jury was
instructed to evaluate the reliability of the identifica-
tion. The prosecutor’s position sweeps too broadly—it
would render every error of this kind harmless.
Courts have widely acknowledged that juries place
disproportionate weight on eyewitness identifications,
even if they lack indicia of reliability.19 While the
showup had little actual probative value, the “probable
effect of that testimony on the minds of an average
jury,” Kurylczyk, 443 Mich at 315 (opinion by GRIFFIN,
J.) (quotation marks and citations omitted); id. at 318
(BOYLE, J., concurring in part), was almost certainly
disproportionately large. If we were to consider only
the weight of the showup as the prosecution suggests,
we would find it harmful.20

19
See Garner v People, 436 P3d 1107, 1107; 2019 CO 19 (Colo, 2019)
(“Precisely because identification testimony is so persuasive, a mistaken
identification can lead to a wrongful conviction.”); State v Jackson, 248 So
3d 1279, 1283; 2016-1100 (La 5/1/18) (“Scholars and judges alike have
commented that the inherent risk of misidentification is generally exac-
erbated by the compelling nature of eyewitness testimony . . . .”); State v
Artis, 314 Conn 131, 155; 101 A3d 915 (2014) (“We acknowledge the
powerful effect that eyewitness identification testimony has on juries and
recognize that the improper admission of that evidence will constitute
harmful error in many instances, particularly when there is no other such
eyewitness identification testimony.”); State v Delgado, 188 NJ 48, 60; 902
A2d 888 (2006) (“Eyewitness identification can be the most powerful
evidence presented at trial, but it can be the most dangerous too.”).
20
The dissent criticizes us for lacking faith in our jury system and
notes that in Manson the United States Supreme Court was “content to
rely upon the good sense and judgment of American juries, for evidence
with some element of untrustworthiness is customary grist for the jury
mill.” Manson, 432 US at 116. The dissent seems to have failed to
consider the sentence preceding that quotation: “Surely, we cannot say
that under all the circumstances of this case there is a very substantial
58 505 MICH 31 [Mar
OPINION OF THE COURT

But, as with Kurylczyk, we must determine whether

the prosecution’s case was “significantly less persua-
sive” without the showup. This requires us to consider
the remainder of the prosecution’s case. Without the
showup, the prosecution’s only evidence was the secu-
rity camera compilation and Watkins’s identification of
the Jeep.
The compilation is far from conclusive. While a Jeep
passes by in each clip, there are no identifiable distin-
guishing features. The compilation might depict the
same Jeep in each of the clips, or it might not. The
compilation might depict the Jeep from the crime, or it
might not. The last clip depicts the traffic stop of the
Jeep defendant and Ramsey were traveling in, but
earlier clips might or might not. There simply is no way
to know. Even if the compilation did trace one vehicle
from the crime to the traffic stop, it also shows that,
after the shooting, at least one person got out, and at
least one person got in. There is no way to determine
whether the person or people who got out of the Jeep are
the same as the one or ones who got in. Watkins’s
identification of the Jeep via a photograph is also far
from conclusive. The color and make were the only
features of the Jeep she seemed aware of. She failed to
identify any other aspect about the Jeep that was
familiar to her: “I don’t know the difference, new, old. I
know it looked like a Jeep. . . . It was a box.” And it is
worth again noting that the license plate on the Jeep
likelihood of irreparable misidentification.” Id. (quotation marks and
citation omitted). We agree that when an identification is sufficiently
reliable, its weight is to be assessed by a jury. For reasons discussed at
length here, we continue to think unreliable identifications should not
be presented to juries. See Moore, 434 US at 227 (“[D]ue process protects
the accused against the introduction of evidence of, or tainted by,
unreliable pretrial identifications obtained through unnecessarily sug-
gestive procedures.”).
2020] PEOPLE V SAMMONS 59
OPINION OF THE COURT

defendant was in when he was arrested did not contain

any of the letter combinations that Jones reported to
police. Without the showup, this is the sum of the
prosecution’s case. We have little trouble concluding
that it is “significantly less persuasive” without the
showup.
Our conclusion is buttressed by the fact that the
trial court also found the prosecution’s case “signifi-
cantly less persuasive” without the showup. As noted
earlier, the trial court denied a directed verdict to
defendant, but it granted a directed verdict to Ram-
sey.21 In denying the directed verdict to defendant, the
court reasoned that “[t]he out-of-court identification
testimony of Sergeant Rivard by itself, and together
with the other circumstantial evidence presented,” was
sufficient to sustain the verdict. But the only difference
between the evidence against defendant and Ramsey
was the showup. We believe the prosecution’s case was
“significantly less persuasive” without the showup
identification evidence.

IV. CONCLUSION

We conclude that the showup conducted by the

police was unnecessarily suggestive and unreliable.
Further, the error was not harmless. Accordingly, we
reverse the Court of Appeals judgment, suppress any
evidence from the showup, and remand to the Saginaw
Circuit Court for a new trial.

21
That decision was reversed in the Court of Appeals; Ramsey’s
application for leave to appeal the Court of Appeals decision is still
pending. See People v Ramsey (On Remand), unpublished per curiam
opinion of the Court of Appeals, issued July 2, 2019 (Docket No. 334614),
application for leave to appeal pending. But the resolution of the legal
issues in that case does not affect our observation that at least for the
trial court, which observed the prosecution’s case in person, the decision
to grant or deny a directed verdict turned on the showup identification.
60 505 MICH 31 [Mar
DISSENTING OPINION BY ZAHRA, J.

MCCORMACK, C.J., and VIVIANO, BERNSTEIN, and

CLEMENT, JJ., concurred with CAVANAGH, J.

ZAHRA, J. (dissenting). I respectfully dissent. On a

sunny June afternoon, 16-year-old Dyjuan Jones wit-
nessed the murder of Humberto Casas from approxi-
mately 20 to 25 feet away while riding in the back of
his mother’s vehicle. Specifically, Jones observed a
passenger exit a light gray Jeep and fire multiple shots
at Casas. Jones did not have a clear view of the driver,
who remained in the Jeep throughout the incident. But
Jones had a clear, unobstructed view of the shooter. At
the scene, Jones provided police with a description of
the driver, the passenger-shooter, and the vehicle in
which they fled after the shooting. This information
proved invaluable. Shortly after the shooting, police
stopped a vehicle matching the description provided by
Jones. The vehicle had two occupants: Dominique
Ramsey, the driver, and defendant, the front seat
passenger. The description of the shooter provided by
Jones matched defendant. Defendant and Ramsey
were taken to the Saginaw Police Department. Ap-
proximately four or five hours after the murder, Jones
went to the Saginaw Police Department to be inter-
viewed regarding the crime. During a break in the
interview, Michigan State Police Detective Sergeant
David Rivard asked Jones to walk down a hallway and
look into two interview rooms located at the end of the
hall. Detective Sergeant Rivard asked Jones to deter-
mine whether he knew anyone seated in either room,
and if so, how he knew them. Jones did just that and
upon returning identified defendant, who was seated
in one of the rooms, as the shooter. Jones did not
identify Ramsey, who was seated in the other interview
room. At the preliminary examination and later at
trial, however, Jones testified that he never identified
2020] PEOPLE V SAMMONS 61
DISSENTING OPINION BY ZAHRA, J.

defendant as being involved in the crime. The identi-

fication of defendant by Jones was nonetheless admit-
ted into evidence through the testimony of Detective
Sergeant Rivard pursuant to MRE 801(d)(1)(C) (prior
statement of identification). The jury, tasked with the
duty of determining the veracity and credibility of both
Jones and Detective Sergeant Rivard as well as assess-
ing the reliability, if any, of the identification of defen-
dant allegedly made by Jones, found defendant guilty
of conspiracy to commit open murder.
I do not take issue with the majority opinion’s
conclusion that the identification procedure employed
at the police station was suggestive and unnecessary.
Nonetheless, I do not believe this procedure was so
unduly suggestive as to lead to a substantial likelihood
of misidentification. Viewed under the totality of the
circumstances and weighed against the corrupting
effect of the suggestiveness of this procedure, I con-
clude that the identification of defendant by Jones
retained strong indicia of reliability. I therefore see no
clear error in the trial court’s decision to admit evi-
dence that Jones identified defendant as the shooter. I
would affirm the trial court and the Court of Appeals.

I. STANDARD OF REVIEW

A “trial court’s decision to admit identification evi-

dence will not be reversed unless it is clearly errone-
ous.”1 “Clear error exists when the reviewing court is
left with the definite and firm conviction that a mis-
take has been made.”2

1
People v Kurylczyk, 443 Mich 289, 303; 505 NW2d 528 (1993)
(opinion by GRIFFIN, J.). Justice GRIFFIN’s opinion was joined, in all the
parts relevant to this case, by Justice BOYLE. See id. at 318 (BOYLE, J.,
concurring in part). For ease of reading, citations to this concurrence are
not included, but may be assumed throughout this opinion.
2
Id. at 303 (opinion by GRIFFIN, J.).
62 505 MICH 31 [Mar
DISSENTING OPINION BY ZAHRA, J.
II. LEGAL BACKGROUND

The majority opinion has condemned the pretrial

identification procedure used in this case as an imper-
missible showup.3 I do not contest that identifications
made by way of a showup are disfavored.4 Nonetheless,
the Supreme Court of the United States has made it
clear that suppression of evidence is not required
merely because the identification of an alleged assail-
ant was obtained through a showup.5 The Supreme
Court has stated that a rule requiring the automatic
exclusion of showups “would ‘go too far,’ for it would
‘keep evidence from the jury that is reliable and
relevant,’ and ‘may result, on occasion, in the guilty
going free.’ ”6 Indeed, it is well established that sup-
pression of an eyewitness identification is a high bar to
attain, requiring a defendant to show that “the pretrial

3
A “showup” is defined as “[a] police procedure in which a suspect is
shown singly to a witness for identification . . . .” Black’s Law Dictionary
(11th ed). There are volumes of cases that expound on the suggestive-
ness of showups. The procedure implemented by Detective Sergeant
Rivard was indeed suggestive. But suggestiveness alone does not
require suppression. In the end, “ ‘each case must be considered on its
own facts . . . .’ ” Neil v Biggers, 409 US 188, 196; 93 S Ct 375; 34 L Ed
2d 401 (1972), quoting Simmons v United States, 390 US 377, 384; 88 S
Ct 967; 19 L Ed 2d 1247 (1968).
4
Stovall v Denno, 388 US 293, 302; 87 S Ct 1967; 18 L Ed 2d 1199
(1967) (explaining that showups have been “widely condemned”); see
also United States v Brownlee, 454 F3d 131, 138 (CA 3, 2006) (“[A]
show-up procedure is inherently suggestive because, by its very nature,
it suggests that the police think they have caught the perpetrator of the
crime.”).
5
Perry v New Hampshire, 565 US 228, 239; 132 S Ct 716; 181 L Ed 2d
694 (2012) (“Even when the police use [an unnecessarily suggestive
identification] procedure, . . . suppression of the resulting identification
is not the inevitable consequence.”).
6
Id., quoting Manson v Brathwaite, 432 US 98, 112; 97 S Ct 2243; 53
L Ed 2d 140 (1977) (brackets omitted).
2020] PEOPLE V SAMMONS 63
DISSENTING OPINION BY ZAHRA, J.

identification procedure was so suggestive in light of

the totality of the circumstances that it led to a
substantial likelihood of misidentification.”7
“[A]n unnecessarily suggestive identification may be
admitted if it is sufficiently reliable.”8 Reliability of an
eyewitness identification has been characterized as the
“ ‘linchpin’ ” in determining whether the identification
is admissible.9 In Neil v Biggers, the Supreme Court of
the United States provided a nonexhaustive list of
factors to be considered in determining whether the
identification was reliable, including:
the opportunity of the witness to view the criminal at the
time of the crime, the witness’ degree of attention, the
accuracy of the witness’ prior description of the criminal,
the level of certainty demonstrated by the witness at the
confrontation, and the length of time between the crime
and the confrontation.[10]

In Perry v New Hampshire, the Supreme Court

summarized the standard for excluding an eyewitness
identification due to the lack of reliability:

7
Kurylczyk, 443 Mich at 302 (opinion by GRIFFIN, J.) (emphasis
added), citing Biggers, 409 US at 196; see also Perry, 565 US at 261-262
(Sotomayor, J., dissenting) (“It bears reminding . . . that we set a high
bar for suppression. The vast majority of eyewitnesses proceed to testify
before a jury.”).
8
People v Thomas, 501 Mich 913, 913 (2017), citing Perry, 565 US at
238-239 (opinion of the Court); see also Manson, 432 US at 106 (“The
admission of testimony concerning a suggestive and unnecessary iden-
tification procedure does not violate due process so long as the identifi-
cation possesses sufficient aspects of reliability.”).
9
Perry, 565 US at 239, quoting Manson, 432 US at 114; see also
Biggers, 409 US at 199 (“[T]he central question [is] whether under the
totality of the circumstances the identification was reliable even though
the confrontation procedure was suggestive.”) (quotation marks omit-
ted), and Thomas, 501 Mich at 913 (“[R]eliability is the ultimate
touchstone for admissibility of an identification.”).
10
Biggers, 409 US at 199-200.
64 505 MICH 31 [Mar
DISSENTING OPINION BY ZAHRA, J.

An identification infected by improper police influ-

ence . . . is not automatically excluded. Instead, the trial
judge must screen the evidence for reliability pretrial. If
there is “a very substantial likelihood of irreparable mis-
identification,” the judge must disallow presentation of
the evidence at trial. But if the indicia of reliability are
strong enough to outweigh the corrupting effect of the
police-arranged suggestive circumstances, the identifica-
tion evidence ordinarily will be admitted, and the jury will
ultimately determine its worth.[11]

Thus, the ultimate determination of whether an eye-

witness identification is admissible is a two-step inter-
connected inquiry.12 That is, courts must weigh the
factors inherent to reliability, i.e., the Biggers factors,
against “the corrupting effect of the suggestive identi-
fication itself.”13

III. DISCUSSION

A. THE SHOWUP WAS NOT UNDULY SUGGESTIVE

I do not take issue with the majority opinion’s

conclusion that the police station showup conducted in
this case was suggestive and unnecessary. But the
inquiry does not end there. The identification should

11
Perry, 565 US at 232, quoting Simmons, 390 US at 384; see also
People v Gray, 457 Mich 107, 122 n 18; 577 NW2d 92 (1998) (“ ‘[A]
defendant is denied due process only when the identification evidence is
so unreliable that its introduction renders a trial unfair. As long as there
is not a substantial likelihood of misidentification, it is the function of
the jury to determine the ultimate weight to be given the identifica-
tion.’ ”), quoting United States v Causey, 834 F2d 1277, 1285 (CA 6,
1987).
12
Howard v Bouchard, 405 F3d 459, 469 (CA 6, 2005) (“We thus first
assess whether the identification was unnecessarily suggestive, then
assess whether the identification was nonetheless reliable. If an identi-
fication is reliable, it will be admissible even if the confrontation was
suggestive.”), citing Manson, 432 US at 114.
13
Manson, 432 US at 114.
2020] PEOPLE V SAMMONS 65
DISSENTING OPINION BY ZAHRA, J.

not be suppressed unless the showup was so unduly

suggestive that it led to a substantial likelihood of
misidentification.14 To this end, I conclude the majority
opinion fails to weigh each of the Biggers factors under
the circumstances presented in this case and against
“the corrupting effect of the suggestive identification
itself.”15 For instance, defendant and Ramsey appeared
before Jones in separate interview rooms and in street
clothes. Both Ramsey and defendant sat unrestrained
and unaccompanied by any law enforcement officers.16
For all intents and purposes, there was nothing to
suggest to Jones or any objective observer that Ramsey
and defendant were suspects in any crime, let alone
the crime Jones was at the police station to discuss.
Jones was present at the police station to aid law
enforcement. From the objective facts, it could appear
to Jones that Ramsey and defendant were also present
at the police station for innocent reasons.17

14
See Kurylczyk, 443 Mich at 306 (opinion by GRIFFIN, J.) (“[A]
suggestive lineup is improper only if under the totality of the circum-
stances there is a substantial likelihood of misidentification. The rel-
evant inquiry, therefore, is not whether the lineup photograph was
suggestive, but whether it was unduly suggestive in light of all of the
circumstances surrounding the identification.”) (citation omitted).
15
Manson, 432 US at 113, citing Biggers, 409 US at 199-200.
16
But see Brownlee, 454 F3d at 138 (finding the showup to be
unnecessarily suggestive, but still sufficiently reliable, where the defen-
dant was shown to witnesses handcuffed, in the back of a police cruiser,
with police officers nearby, at the scene of the accident where one
witness observed the defendant wreck the stolen vehicle, and while “all
four eyewitnesses were allowed to make identifications while exposed to
the suggestive influences of others”).
17
The majority opinion states that at the preliminary examination,
“Jones testified that he understood he was taken to see defendant for the
purpose of making an identification.” Ante at 45. But Jones did not say
that he walked to the interview rooms “for the purpose of making an
identification.” He merely agreed at the preliminary examination with
the prosecutor, likely in retrospect, that this was the prosecutor’s
66 505 MICH 31 [Mar
DISSENTING OPINION BY ZAHRA, J.

Further, Detective Sergeant Rivard did not tell

Jones that defendant and Ramsey were suspects in the
shooting, nor did Detective Sergeant Rivard ask Jones
leading questions in an attempt to have Jones identify
defendant and Ramsey as the assailants.18 Detective
Sergeant Rivard simply asked Jones whether he knew
either of the two men seated in the two separate
interview rooms. Detective Sergeant Rivard did not
pressure or coerce Jones to make an identification, nor
did he in any way suggest to Jones that an identifica-
tion was at all required.19 In fact, Detective Sergeant
purpose at the time of the police station showup. Further, the identifi-
cation is not tainted because Detective Sergeant Rivard did not record
the identification procedure. Both Jones and Detective Sergeant Rivard
testified in detail regarding the facts leading to the identification of
defendant by Jones. Specifically, Jones testified that Detective Sergeant
Rivard “[t]old me to walk down the hallway, look left and right, it was
two rooms, two males was [sic] sitting in a room, one was kind of like
really clean balled [sic] and then the other one he had braids.” Then in
response to the question “did that Officer tell you [to] identify anybody,”
Jones flatly testified that “[h]e told me go down the hallway look left and
right and see if I see anyone in the room.” Detective Sergeant Rivard
testified that he asked Jones “if he’d walk down the hallway and look
into both rooms and then return back to [inform Rivard whether Jones
had] . . . identified any of [the] individuals in the room, [and] if he could
explain how he . . . knew them.” Given the corroboration of their testi-
mony, it is clear that Jones was not escorted to the interview rooms by
police, nor was he surrounded by police when he observed defendant.
18
See, e.g., Thomas, 501 Mich at 913 (“[T]he police officer’s presenta-
tion of a single photograph to the victim accompanied by the question
‘was this the guy who shot you?’ was highly suggestive”); Gray, 457 Mich
at 111-112 (finding the pretrial identification procedure to be highly
suggestive where the “defendant was singled out by showing only one
photo to the victim, and then the victim was reassured that defendant was
her assailant because of the statement by a police officer that this was the
man the police believed was her assailant”) (emphasis added); Howard,
405 F3d at 470 (“[T]here is no evidence that law enforcement officers said
anything to suggest to [the witness] that [the defendant] was the killer.”).
19
See Manson, 432 US at 116 (finding that there was little pressure or
urgency placed on the witness to make an identification, thus demon-
strating that the “identification was made in circumstances allowing care
and reflection”).
2020] PEOPLE V SAMMONS 67
DISSENTING OPINION BY ZAHRA, J.

Rivard did nothing to suggest that the suspects from

the shooting were apprehended and that an immediate
identification was needed from Jones. The identifica-
tion occurred during a break in the interview of Jones
at the police station, not before the interview was
conducted, demonstrating that an identification was
not at all urgent. Moreover, that Jones identified
defendant, but not Ramsey, demonstrates that Jones
relied on his memory rather than any potential cor-
rupting effect of the showup.
The majority opinion dismisses these facts alto-
gether, stating that “noting other ways the showup
could have been more suggestive does not help us
determine whether this showup was suggestive.”20 The
majority opinion misses the point, failing to acknowl-
edge that these are facts properly considered under the
“totality of the circumstances” analysis; facts that are
pertinent to the ultimate inquiry of whether the iden-
tification by Jones was sufficiently reliable to overcome
its overall suggestiveness.21

B. THE IDENTIFICATION OF DEFENDANT BY JONES WAS RELIABLE

Next we must determine whether the identification

of defendant by Jones was sufficiently reliable to

20
Ante at 45.
21
This is not a case where the showup was so suggestive that it “made
it all but inevitable that [the witness] would identify [the defendant]
whether or not he was in fact ‘the man.’ ” Foster v California, 394 US 440,
443; 89 S Ct 1127; 22 L Ed 2d 402 (1969). In Foster, the witness failed to
identify the defendant despite a suggestive three-man lineup where the
defendant was the tallest person by 6 inches and was the only one
wearing a leather jacket similar to the one worn by the robbery suspect.
Id. at 441. Police then arranged a one-on-one showup, where the witness
still could only make a tentative identification. Id. Finally, in a five-man
lineup a week later, the witness affirmatively identified the defendant,
who was the only person to appear in both lineups. Id. at 441-442. The
Supreme Court found that this “procedure so undermined the reliability
of the eyewitness identification as to violate due process.” Id. at 443.
68 505 MICH 31 [Mar
DISSENTING OPINION BY ZAHRA, J.

outweigh the suggestiveness of the showup.22 This

inquiry is resolved by looking to Biggers and its prog-
eny. As an initial matter, the majority opinion fails to
account for or consider the many cases decided since
Biggers. While Biggers is the watershed case discuss-
ing the reliability of out-of-court identifications, there
have been many cases since Biggers was decided in
1972 that have found identifications sufficiently reli-
able under circumstances that are seemingly less reli-
able than the circumstances present in Biggers.23 The
majority opinion relies too heavily on a factual com-
parison of this case to Biggers rather than an exhaus-
tive application of the Biggers factors in the context of
the caselaw that has developed over the past 48 years.

1. THE OPPORTUNITY FOR THE WITNESS

TO VIEW THE ASSAILANT AT THE TIME OF THE CRIME

Regarding the first Biggers factor, Jones had ample

opportunity to view defendant at the time of the crime.

22
Manson, 432 US at 114, citing Biggers, 409 US at 199-200; Causey,
834 F2d at 1284-1285 (“In sum, the essential question is whether under
the totality of the circumstances the identification was reliable even
though the confrontation procedure was suggestive.”) (quotation marks
and citations omitted).
23
See, e.g., Gray, 457 Mich at 124 (explaining that while the eyewit-
ness “could not be one hundred percent positive at the lineup, she was
sufficiently certain to be able to pick out the defendant,” and “any
evidence of the victim’s lack of certainty would be relevant to the weight
that the evidence should be given, but not to its admissibility”);
Brownlee, 454 F3d at 140 (finding the eyewitness identifications suffi-
ciently reliable despite the witnesses’ short opportunity to view the
suspect, the witnesses’ misidentification of the suspect’s clothing and
age, and the fact that “none of the witnesses could describe the suspect’s
facial features or provide the police with more than a relatively general
description of him”); Howard, 405 F3d at 474 (discussing cases where
eyewitness identifications were sufficiently reliable and thus admissible
despite poor opportunities to view the perpetrators and errors in the
witnesses’ description of the perpetrators).
2020] PEOPLE V SAMMONS 69
DISSENTING OPINION BY ZAHRA, J.

The shooting occurred on a clear, sunny afternoon in

June, and Jones had an unobstructed view of the
shooting from about 20 to 25 feet away while in the
back of his mother’s car. When asked at trial whether
he “had a pretty good . . . view of what was going on,”
Jones answered in the affirmative. The majority opin-
ion concludes, with no objective support, that Jones
was a mere casual observer whose opportunity to view
the crime was poor. But Jones was not required to be
an active participant in the events he observed in order
to have a good opportunity to observe defendant.24 In
fact, the conclusion that Jones was unable to ad-
equately view the crime as a mere casual observer is
belied by the detail with which Jones was able to
describe the crime. At the preliminary examination,
Jones stated that the shooting occurred in “[n]o less
than a minute,”25 during which time Jones observed a
Hispanic male (Casas) walk out of a store when an
African-American man got out of a Jeep and fired three
gunshots at Casas. The shooter’s gun jammed, but
after approximately five seconds, the shooter relieved
the jam and fired more shots at Casas while Casas
tried to flee. The driver remained in the Jeep. Jones
described the shooter as an African-American male
with a shaved head wearing a white t-shirt and black
cargo pants.26 At trial, Jones conceded that the events

24
Haliym v Mitchell, 492 F3d 680, 705 (CA 6, 2007) (stating only that
courts are “more likely to find an identification reliable where a witness
‘was able to view the assailant with a heightened degree of attention, as
compared with disinterested bystanders or casual observers’ ”), quoting
Howard, 405 F3d at 473 (quotation marks and citation omitted).
25
I do note that at two other times during his testimony, Jones agreed
with questions asking whether the shooting occurred in “less than a
minute.”
26
Comparatively, at trial, Jones described the incident as follows:
As we were crossing the tracks on Cumberland, we were
passing a little auto body shop or whatever. And as we passed the
70 505 MICH 31 [Mar
DISSENTING OPINION BY ZAHRA, J.

happened in quick succession and that he did not see

the shooter get back into the Jeep because Jones and
his mother fled the scene to avoid the gunfire. But the
facts and details provided by Jones strongly suggest
that Jones had sufficient opportunity to have a clear,
unobstructed view of the shooter while only a short
distance away.27 Thus, the opportunity Jones had to
view defendant during the crime was more than ad-
equate.

2. THE DEGREE OF ATTENTION PAID BY THE WITNESS

As to the second Biggers factor, the degree of atten-

tion that Jones paid to the shooting is more difficult to

tracks, I heard what I thought was firecrackers. And then, I didn’t

pay no mind to it.
But then, I heard them again, so I turned around, and I see an
African-American male shooting a Hispanic male. And when the
firecracker—well, when the gunshots stopped, I see the Hispanic
male, like, rolling in the—from the sidewalk into the street, trying
to get away from it. And, as the gun unjammed when I thought it
jammed, he started shooting again. And the Hispanic male just
kept rolling and rolling until he just didn’t roll any more.
Further, Jones testified at trial that the shooter was an African-
American male with a bald head wearing a white t-shirt and “probably”
black cargo pants.
27
See Brisco v Ercole, 565 F3d 80, 93 (CA 2, 2009) (explaining that
“fifteen to fifty feet is hardly a great distance”); Brownlee, 454 F3d at
139-140 (holding that even though the entire carjacking only lasted
approximately 30 seconds while the witness (the victim) was focused
primarily on the weapon, not the defendant, the witness still viewed the
perpetrator “at fairly close range, and in broad daylight”); Howard, 405
F3d at 472 (finding that the witness had “a good opportunity” to observe
the defendant where the witness saw him once for a “glance” from three
to six feet away, once for “a split-second” from 10 to 15 feet away, and
once for approximately a minute and a half from 30 to 40 feet away);
Causey, 834 F2d at 1285 (“The record indicates that the vehicle in which
[the defendant] was allegedly sitting was 20 to 30 feet from the window,
and [the witness’s] view was unobstructed looking inside the car.”). But
2020] PEOPLE V SAMMONS 71
DISSENTING OPINION BY ZAHRA, J.

discern than the majority opinion suggests. Viewing

the testimony of Jones as a whole, two divergent paths
emerge regarding the degree of attention he paid to the
crime. The majority opinion cites the testimony of
Jones at the preliminary examination to conclude that
Jones was more focused on the Jeep, the driver, and
the gun rather than the shooter. The majority opinion
chooses this path to conclude that Jones did not pay a
high degree of attention to the crime. An alternative
path that emerges from the testimony of Jones, the one
the jury chose, suggests that Jones was paying atten-
tion to the incident as a whole, not everything except
the shooter. This is evidenced by the way Jones re-
counted the crime and his description of the shooter.
This path provides sufficient indicia of reliability un-
der the second Biggers factor. Where the testimony of a
witness presents different, plausible versions of what
the witness observed, this Court should defer to the
jury to choose which version to believe.28
Further, while not an enumerated Biggers factor, the
testimony of Jones reveals that he was relatively calm
see Thomas, 501 Mich at 913 (holding that the victim’s opportunity to
view the assailant was inadequate where “the victim viewed the
assailant’s partially obscured face for no more than seven seconds on a
dark city street with no streetlights while a gun was pointed at him”);
United States v Greene, 704 F3d 298, 310 (CA 4, 2013) (holding that the
witness “had a limited opportunity to view the robber, given the robber’s
disguise, his brief amount of time in the bank, and the presence of [a]
firearm”).
28
See People v Young, 472 Mich 130, 143; 693 NW2d 801 (2005)
(“Fundamentally, it is the province of the jury to assess the credibility
of witnesses.”). To be sure, the jury could have determined that the
degree of attention paid by Jones was inadequate. But the point of this
reliability inquiry is to keep identifications that are wholly unreliable
from going to the jury, not to exclude less-than-perfect identifications
altogether simply because there are questions left for the jury to
resolve.
72 505 MICH 31 [Mar
DISSENTING OPINION BY ZAHRA, J.

while witnessing the shooting.29 Jones testified that

this was not the first time he had heard gunshots, and
when asked by defense counsel, Jones stated that he
was not disturbed by the shooting. In fact, Jones
prompted his mother, who was a nurse, to return to the
scene to render aid to Casas. Once at the scene, Jones
began counting the empty shell casings, as he had
apparently been taught to do in educational courses in
criminal justice and criminal investigation.30 In sum,
that “Jones’s attention was drawn to the shooting”31
did not affect the attention to detail Jones paid to the
crime and its actors, as evidenced by the detail with
which Jones described the shooting.

3. THE ACCURACY OF THE PRIOR DESCRIPTION

OF THE ASSAILANT MADE BY THE WITNESS

Regarding the third Biggers factor, the description of

the shooter that Jones provided to the police accurately
matched defendant. When Bridgeport Township Offi-
cer Tyler Poirer pulled over the Jeep in which Ramsey
and defendant were traveling, defendant was wearing
a white t-shirt and black shorts and he appeared to

29
The fear and stress of a witness while observing a crime may affect
the ability of the witness to accurately perceive the crime and its
participants. See Perry, 565 US at 243 (stating that “whether the
witness was under stress when he first encountered the suspect” is one
factor bearing on the likelihood of misidentification); Greene, 704 F3d at
308 (stating that the degree of attention paid by the witness “to the
robber at the time of the offense was greatly diminished due to her
reasonable fear and the distraction of having a weapon pointed at her”).
Here, however, Jones remained calm.
30
See Kurylczyk, 443 Mich at 308 (opinion by GRIFFIN, J.) (finding the
identification reliable in part because there was no evidence that the
eyewitnesses “were panicked or otherwise psychologically debilitated by
the crime” and noting that the eyewitnesses—bank tellers—relied on
their training and reacted calmly during the bank robbery).
31
Ante at 52.
2020] PEOPLE V SAMMONS 73
DISSENTING OPINION BY ZAHRA, J.

have a shaved head, or at least a very short hairstyle.

Significantly, even general descriptions of physical char-
acteristics and external features, such as the shooter’s
clothing, can be evidence in favor of reliability.32 The
only aspect of defendant’s appearance that arguably
did not match the description of the shooter provided
by Jones was the fact that defendant wore shorts when
he was apprehended, not pants. All other aspects of
that description accurately matched defendant, and
this minor distinction goes to the weight afforded to
this testimony, not to its reliability and admissibility.33
The majority opinion goes astray by focusing too
heavily on the fact that Jones misidentified the license
plate of the Jeep in which the assailants fled and on the
fact that Jones erroneously described Ramsey as
weighing between 280 and 320 pounds and having a
beard while he actually weighed about 150 pounds and

32
See Brisco, 565 F3d at 92 (explaining that even a minimal descrip-
tion of physical characteristics can be sufficient, stating “[t]he physical
description provided by the victim substantially matched petitioner’s
characteristics insofar as [petitioner] is a white male, five feet, ten inches
tall, ‘stocky,’ and has brown hair”); Brownlee, 454 F3d at 134-135 (where
four witnesses identified the suspect as a young black male, possibly in
his thirties, wearing a dark t-shirt and a baseball cap at the time of the
carjacking, these generalities of the witnesses’ descriptions of the suspect
went more toward the weight of the identifications than reliability);
Howard, 405 F3d at 473 (finding the description of the defendant by the
witness sufficiently accurate where the witness described the perpetrator
as “ ‘a black man with tan shorts on,’ ” holding a “ ‘real short’ ” rifle with
a clip, and having a distinctive “ ‘short flat-top’ ” haircut).
33
See Brownlee, 454 F3d at 140 (finding the carjacking victim’s
identification of the defendant sufficiently reliable despite the victim
describing her assailant as wearing shorts, whereas the defendant wore
blue jeans). The majority opinion takes issue with the general descrip-
tion of the shooter provided by Jones, emphasizing that Jones was
unable to identify any specific physical characteristics of the shooter.
While the description of the shooter offered by Jones only included the
shooter’s general physical characteristics of race, gender, and hairstyle,
the fact remains that this description accurately matched defendant.
74 505 MICH 31 [Mar
DISSENTING OPINION BY ZAHRA, J.

had short facial hair stubble. But these discrepancies

are substantially less relevant considering that the
other characteristics of the Jeep provided by Jones
accurately matched Ramsey’s Jeep. More significantly,
Jones did not identify Ramsey at the showup. Jones
only identified defendant. Thus, with respect to defen-
dant, the description offered by Jones was reasonably
accurate.34

4. THE LEVEL OF CERTAINTY THE WITNESS SHOWED AT THE

PRETRIAL IDENTIFICATION PROCEDURE

As to the fourth Biggers factor, there is no evidence in

the record regarding the level of certainty Jones dis-
played when he identified defendant as the shooter. At
trial, Detective Sergeant Rivard simply testified that
Jones identified defendant as the shooter. In contrast,
Jones denied ever making the identification. Because
there is no evidence regarding the level of certainty

34
Further, while other evidence of guilt plays no part in the determi-
nation of whether the identification of defendant by Jones was reliable,
it cannot be overlooked that defendant was the passenger, not the driver,
of the Jeep that Officer Poirer pulled over just 11 minutes after receiving
the dispatch call about the shooting. See Manson, 432 US at 116
(“Although it plays no part in our analysis, all this assurance as to the
reliability of the identification is hardly undermined by the facts that
respondent was arrested in the very apartment where the sale had
taken place, and that he acknowledged his frequent visits to that
apartment.”). Also, Rosei Watkins—another witness to the murder—
positively identified Ramsey’s Jeep as the one she saw fleeing the
murder scene and testified at trial that the shooter’s hairstyle was
“short cut.” Watkins also testified that the driver was of normal build,
which would be contrary to the assessment of the driver given by Jones.
But when asked whether Watkins thought the driver was “as tall as
6-feet-5-inches,” Watkins testified that she “d[id]n’t think they was [sic]
that tall.” (Emphasis added.) Although Watkins made this statement
while being questioned about the height of the driver (Ramsey), it is
possible that her use of the word “they” indicated that she was referring
to the height of both assailants.
2020] PEOPLE V SAMMONS 75
DISSENTING OPINION BY ZAHRA, J.

Jones possessed at the time of the pretrial identification

procedure, this factor does not weigh for or against the
reliability of the identification of defendant by Jones.

5. THE LENGTH OF TIME BETWEEN

THE CRIME AND THE CONFRONTATION

Regarding the fifth Biggers factor, that Jones identi-

fied defendant approximately four or five hours after the
shooting occurred weighs in favor of reliability. This
time span between Jones witnessing the shooting and
his identification of defendant at the police station is
extremely brief. Thus, the identification was made
while the shooting was fresh in the mind of Jones. This
Court has found reliable an identification that occurred
roughly two weeks after the crime.35 Even where almost
a month passes between the crime and the identifica-
tion, we have held that this “relatively short pe-
riod . . . ensures that the crime was still fresh in the
victim’s mind . . . .”36 This is not a case in which weeks
or even months passed between the crime and the
confrontation.37 Jones identified defendant the same
day he observed the murder of Casas, identifying
defendant as the shooter within hours of the crime.
This factor undoubtedly and strongly weighs in favor of
reliability.

35
Kurylczyk, 443 Mich at 307-308 (opinion by GRIFFIN, J.).
36
Gray, 457 Mich at 120.
37
Manson, 432 US at 116 (identification occurred within two days of
crime); Howard, 405 F3d 459 (“Three months is not a great length of
time between an observation and identification.”). But see Biggers, 409
US at 201 (holding that while a seven-month lapse between the crime
and confrontation would be “a seriously negative factor in most cases,”
the fact that the witness had not made a previous identification
demonstrated that “[h]er record for reliability was . . . a good one”);
Greene, 704 F3d at 309 (finding that a 17-month delay between the
crime and the identification constituted “an unquestionably lengthy
period of time that must weigh against reliability”).
76 505 MICH 31 [Mar
DISSENTING OPINION BY ZAHRA, J.
6. THE TOTALITY OF THE BIGGERS FACTORS

Weighing these factors under the totality of the

circumstances and against the corrupting effect of the
overall suggestiveness of the identification process
demonstrates that the identification of defendant by
Jones retained strong indicia of reliability such that
the suggestiveness of the showup did not lead to a
substantial likelihood of misidentification. Jones iden-
tified defendant as the shooter while the incident was
still very fresh in his mind. Jones had an unobstructed
view of defendant during daylight hours. The opportu-
nity of Jones to view the shooter was admittedly brief
as the crime occurred quickly and while Jones and his
mother fled from gunfire. But Jones, who was rela-
tively calm throughout the incident, nonetheless had
sufficient time to view the shooting and provide police
with a general description of the physical characteris-
tics and clothing of the shooter that ultimately
matched defendant. In sum, the police station identi-
fication procedure was not so unduly suggestive that it
outweighed its reliability. Any shortcomings in the
identification procedure go to the weight of the evi-
dence, not its admissibility.38 Accordingly, the trial
court and the Court of Appeals properly concluded that

38
See Cooper v Bergeron, 778 F3d 294, 305 (CA 1, 2015) (“It is not
uncommon . . . for a witness identification to involve an unduly sugges-
tive procedure, as well as other circumstances that may weaken the
accuracy of the witness’s recall, that—when viewed on the whole—
nevertheless do not undermine the reliability of the evidence for
purposes of admitting it at trial for the jury to decide its weight.”);
Brownlee, 454 F3d at 140 (“The generality of the witnesses’ descriptions
of the suspect, the relatively short period of time they saw him, and the
other shortcomings pertaining to their identifications, go more to the
weight of the evidence than the reliability of their identifications, and
thus were issues for the jury.”); Causey, 834 F2d at 1285 (holding that
the defendant’s claims for why the single photographic identification of
him by the witness was unreliable “go to the weight the testimony
2020] PEOPLE V SAMMONS 77
DISSENTING OPINION BY ZAHRA, J.

the evidence showing that Jones identified defendant

as the shooter was admissible.
Given this conclusion, it is not necessary to discuss
whether any error in admitting the identification made
by Jones was harmless beyond a reasonable doubt. I
am compelled, however, to address the majority opin-
ion’s concerns with juries being so susceptible to eye-
witness identifications that they place “disproportion-
ate weight” on such evidence.39 The lack of faith in our
jury system exhibited in the majority opinion is per-
plexing. As the Supreme Court of the United States
explained in Manson v Brathwaite:
Surely, we cannot say that under all the circumstances
of this case there is a very substantial likelihood of
irreparable misidentification. Short of that point, such
evidence is for the jury to weigh. We are content to rely
upon the good sense and judgment of American juries, for
evidence with some element of untrustworthiness is cus-
tomary grist for the jury mill. Juries are not so susceptible
that they cannot measure intelligently the weight of
identification testimony that has some questionable fea-
ture.[40]

We trust juries to make difficult credibility and reli-

ability determinations every day, and I fail to see why
this case should be any different.41 The only unique
aspect of this case is testimony from Jones that he
never identified defendant as the shooter at the police
station, thus causing evidence of his identification to be
should be given by the jury and do not render the testimony so
unreliable as to mandate its exclusion”).
39
Ante at 57.
40
Manson, 432 US at 116 (quotation marks and citation omitted).
41
See Perry, 565 US at 245 (“[T]he jury, not the judge, traditionally
determines the reliability of evidence.”); Young, 472 Mich at 143
(holding that the credibility of a witness is an assessment reserved for
the jury).
78 505 MICH 31 [Mar
DISSENTING OPINION BY ZAHRA, J.

admitted through Detective Sergeant Rivard. But our

rules of evidence specifically account for a situation
like this, permitting prior statements of identification
to be used as substantive evidence of guilt as long as
the declarant (Jones) is subject to cross-examination
regarding the identification.42 It makes no difference
whether the declarant’s testimony at trial is consistent
with the prior statement of identification.43 There are
many situations in which the story of a witness may
change during the course of a criminal prosecution,
and I decline to speculate why a discrepancy exists
here. As in any other criminal prosecution, the jury
here was tasked with weighing the reliability of the
identification, as well as examining the demeanor,
credibility, and veracity of both Jones and Detective
Sergeant Rivard as they each testified.
Finally, numerous constitutional and evidentiary
safeguards “caution juries against placing undue
weight on eyewitness testimony of questionable reli-
ability.”44 These safeguards include defendant’s right to
confront and cross-examine the witnesses against
him;45 his right to the effective assistance of counsel,
who can place doubt in the jurors’ minds through
cross-examination, opening statements, and closing

42
MRE 801(d)(1)(C).
43
People v Malone, 445 Mich 369, 377; 518 NW2d 418 (1994) (“[S]tate-
ments of identification are not limited by whether the out-of-court
declaration is denied or affirmed at trial.”).
44
Perry, 565 US at 245.
45
See US Const, Am VI; Const 1963, art 1, § 20; Perry, 565 US at
245-246, quoting Maryland v Craig, 497 US 836, 845, 110 S Ct 3157, 111
L Ed 2d 666 (1990) (“ ‘The central concern of the Confrontation Clause
is to ensure the reliability of the evidence against a criminal defen-
dant.’ ”); People v Fackelman, 489 Mich 515, 528; 802 NW2d 552 (2011)
(“ ‘The right to confront and to cross-examine witnesses is primarily a
functional right that promotes reliability in criminal trials.’ ”), quoting
Lee v Illinois, 476 US 530, 540; 106 S Ct 2056; 90 L Ed 2d 514 (1986).
2020] PEOPLE V SAMMONS 79
DISSENTING OPINION BY ZAHRA, J.

arguments;46 an eyewitness-specific jury instruction,

which instructs jurors on how to weigh identification
evidence and to accord whatever weight, if any, they
believe the identification deserves;47 evidentiary rules
that exclude relevant evidence if its probative value is
outweighed by its prejudicial effect;48 and the prosecu-
tion’s burden of having to prove defendant guilty
beyond a reasonable doubt.49 While these constitu-
tional and evidentiary safeguards do not displace the
trial court’s initial gatekeeper role to screen a police-
arranged pretrial identification procedure for reliabil-
ity, these safeguards ensured that the jury carefully
weighed the reliability of the identification of defen-
dant made by Jones rather than affording it “dispro-
portionate weight,” as the majority opinion concludes.50

46
US Const, Am VI; Const 1963, art 1, § 20; Perry, 565 US at 246;
Kurylczyk, 443 Mich at 316 (opinion by GRIFFIN, J.) (holding that “any
defects in the eyewitness identifications were brought out by defen-
dant’s counsel,” who “vigorously cross-examined the witnesses and
attacked their credibility”).
47
Perry, 565 US at 246 (“Eyewitness-specific jury instruc-
tions . . . warn the jury to take care in appraising identification evi-
dence.”); see also M Crim JI 7.8.
48
See MRE 403 (“Although 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 consid-
erations of undue delay, waste of time, or needless presentation of
cumulative evidence.”).
49
Perry, 565 US at 247 (“The constitutional requirement that the
government prove the defendant’s guilt beyond a reasonable doubt also
impedes convictions based on dubious identification evidence.”); see also
People v Denson, 500 Mich 385, 401; 902 NW2d 306 (2017) (“The
prosecution bears the burden of proving every element of a charged
offense beyond a reasonable doubt.”).
50
Perry, 565 US at 237 (“The Constitution . . . protects a defendant
against a conviction based on evidence of questionable reliability, not by
prohibiting introduction of the evidence, but by affording the defendant
means to persuade the jury that the evidence should be discounted as
unworthy of credit.”).
80 505 MICH 31 [Mar
DISSENTING OPINION BY ZAHRA, J.
IV. CONCLUSION

When viewed in totality and weighed against the

corrupting effect of the suggestive identification itself,
the identification of defendant made by Jones retained
strong indicia of reliability and did not lead to a
substantial likelihood of misidentification. The trial
court properly admitted Detective Sergeant Rivard’s
testimony regarding this identification, allowing the
jury to consider its ultimate weight. For these reasons,
I would affirm the trial court and Court of Appeals, and
I would affirm defendant’s conviction and sentence.

MARKMAN, J., concurrred with ZAHRA, J.

2020] PEOPLE V REICHARD 81

PEOPLE v REICHARD

Docket No. 157688. Argued on application for leave to appeal October 2,

2019. Decided March 30, 2020.
Tiffany L. Reichard was bound over to the Jackson Circuit Court on
a charge of open murder under a felony-murder theory for having
aided and abetted her boyfriend in an armed robbery during which
he stabbed a man to death. Defendant moved to present evidence
that her boyfriend had physically abused her and that she had
participated in the armed robbery under duress. The court,
Thomas D. Wilson, J., granted the motion. The prosecution filed an
interlocutory application for leave to appeal, and the Court of
Appeals, SAWYER, P.J., and BORRELLO and SERVITTO, JJ., reversed
and remanded, holding that duress may not be used as a defense to
first-degree felony murder when the claim of duress involves the
defendant’s participation in the underlying felony. 323 Mich App
613 (2018). Defendant sought leave to appeal in the Supreme
Court, which ordered and heard oral argument on whether to
grant the application or take other action. 503 Mich 910 (2018).
In a unanimous opinion by Justice VIVIANO, the Supreme
Court, in lieu of granting leave to appeal, held:
Duress may be asserted as an affirmative defense to felony
murder if it is a defense to the underlying felony. People v
Gimotty, 216 Mich App 254 (1996), and People v Etheridge, 196
Mich App 43 (1992), were overruled to the extent they held that
duress is not an affirmative defense to felony murder.
1. Under MCL 750.316(1)(b), a person who commits murder in
the perpetration of or attempt to perpetrate robbery, among other
specified felonies, is guilty of first-degree murder. To convict a
person of felony murder under this provision, the prosecution must
show that the defendant acted with intent to kill or to inflict great
bodily harm or with a wanton and willful disregard of the likeli-
hood that the natural tendency of the defendant’s behavior is to
cause death or great bodily harm. Thus, MCL 750.316(1)(b) oper-
ates only to elevate a second-degree murder to first-degree murder
if it was committed in the commission of one of the enumerated
felonies.
2. To merit an instruction on the common-law affirmative
defense of duress, a defendant bears the burden of producing
82 505 MICH 81 [Mar

some evidence from which a jury could conclude that the threat-
ening conduct was sufficient to create in the mind of a reasonable
person the fear of death or serious bodily harm, the conduct in
fact caused such fear of death or serious bodily harm in the mind
of the defendant, the fear or duress was operating upon the mind
of the defendant at the time of the alleged act, and the defendant
committed the act to avoid the threatened harm. Regarding the
first factor, the threatening conduct or act of compulsion must be
present, imminent, and impending, and the threat must have
arisen without the negligence or fault of the person who insists
upon it as a defense. Historically, duress was not permitted as an
affirmative defense to murder, and Michigan has recognized this
common-law rule. Other jurisdictions have also recognized the
rule or adopted it by statute.
3. The Michigan Supreme Court has not directly addressed
whether duress is a defense to felony murder, but the Michigan
Court of Appeals has held that it is not on the ground that duress
is not a defense to homicide. However, the rationale for preclud-
ing the use of duress as an affirmative defense for other types of
murder is that when someone has a choice between sparing his or
her own life or that of an innocent, the law expects that individual
to spare the innocent person’s life. But felony murder does not
present that choice. Instead, in the felony-murder context, the
individual faces a choice between whether to spare his or her own
life or aid in a lesser felony, i.e., one that does not include as an
element the killing of an innocent. Moreover, holding that duress
may not be asserted as an affirmative defense to felony murder
could lead to illogical and unacceptable results: if the underlying
felony alone were charged, duress could be used as an affirmative
defense; but, when they are charged together, a defendant might
be acquitted of the underlying felony on the basis of duress, but
then be found guilty of felony murder. The fact that MCL
750.316(1)(b) separately requires malice does not mean that
duress cannot be an affirmative defense to felony murder because
a successful defense would negate the aggravator element—i.e.,
commission of the underlying crime—by showing that the defen-
dant was justified in committing the underlying felony. With the
aggravator element negated, a prosecutor would still be able to
proceed against the defendant on the lesser included offense of
second-degree murder if the evidence supported that charge.
4. The Court of Appeals’ judgment was reversed, and the case
was remanded to the trial court. On remand, the trial court must
provide a duress instruction if such an instruction is requested by
2020] PEOPLE V REICHARD 83

defendant and if a rational view of the evidence supports the

conclusion that defendant aided the robbery out of duress.
Reversed and remanded for further proceedings.

Dana Nessel, Attorney General, Fadwa A.

Hammoud, Solicitor General, Jerard M. Jarzynka,
Prosecuting Attorney, and Jerrold Schrotenboer, Chief
Appellate Attorney, for the people.

Michael A. Faraone, PC (by Michael A. Faraone) for

defendant.

Amicus Curiae:

D. J. Hilson, Kym L. Worthy, Jason W. Williams, and

Timothy A. Baughman for the Prosecuting Attorneys
Association of Michigan.

VIVIANO, J. The issue in this case is whether duress

is an affirmative defense to a charge of felony murder.
For the reasons below, we hold that duress may be
asserted as an affirmative defense to felony murder if
it is a defense to the underlying felony.

I. FACTS

Defendant is charged with open murder for assisting

her boyfriend, Michael Beatty, in an armed robbery that
resulted in the stabbing death of the victim, Matthew
Cramton. According to the evidence presented at the
preliminary examination, defendant agreed to help
Beatty conduct a robbery by knocking on the door of
Cramton’s home. When Cramton came to the door,
Beatty entered the home with a gun to rob him. Defen-
dant acted as a lookout while Beatty was inside. When
Beatty left Cramton’s home, he was covered in blood
and carrying a knife. Defendant then drove Beatty to
his mother’s house and helped him dispose of his cloth-
ing. Cramton died from multiple stab wounds.
84 505 MICH 81 [Mar

Prior to trial, defendant filed a motion to present a

duress defense to the felony-murder charge. Defendant
claimed that Beatty had physically and sexually abused
her in the past and that she aided him in the armed
robbery that resulted in Cramton’s death because she
was under duress. Therefore, because defendant com-
mitted the underlying felony under duress, she con-
tends that she cannot be guilty of felony murder. The
trial court granted the motion, ruling that defendant
would be permitted to present her duress defense.
The prosecutor appealed, and the Court of Appeals
reversed. In deciding that duress cannot be asserted as
a defense to felony murder, the Court of Appeals relied
on People v Henderson, 306 Mich App 1, 5; 854 NW2d
234 (2014), which held that duress is not available as a
defense to aiding and abetting murder. The panel rea-
soned:
It is the existence of the predicate felony that raises the
principal’s liability from second-degree murder to first-
degree murder. We fail to see why aiding and abetting the
murder itself should disallow the duress defense, while
aiding and abetting the predicate felony would allow for it.
That is, if this were simply a second-degree murder case
but the facts otherwise the same, with defendant’s liability
being based upon an aiding and abetting theory, both
defendant and the principal would be guilty of second-
degree murder, and the duress defense would be unavail-
able to defendant. With the addition of the predicate felony,
the principal’s liability is raised to first-degree murder. Yet
defendant’s role as an aider and abettor has remained the
same, so her criminal responsibility should also be raised to
first-degree murder. Simply put, in both cases she aided
and abetted a crime that resulted in the taking of a human
life.[1]

1
People v Reichard, 323 Mich App 613, 617; 919 NW2d 417 (2018).
2020] PEOPLE V REICHARD 85

The Court of Appeals also posited that, to convict

defendant under an aiding-and-abetting theory, the
prosecutor would need to show “(1) that she intended to
aid in the charged offense, or (2) that she knew that the
principal intended to commit the charged offense, or (3)
that the charged offense was a natural and probable
consequence of the crime that she intended to aid and
abet.”2 Thus, the Court of Appeals reasoned:
If the prosecutor is able to make this showing, then defen-
dant will have intentionally or knowingly participated in a
homicide or, at a minimum, participated in a crime for
which homicide was a natural and probable consequence.
Therefore, to allow the duress defense in this context
would, in fact, allow it to be used as a defense to murder.[3]

Consequently, the Court of Appeals held “that the

trial court erred by granting defendant’s motion to
raise duress as a defense to the murder charge, includ-
ing the felony-murder theory.”4 Defendant then sought
leave to appeal in this Court. We ordered oral argu-
ment on the application, directing the parties to ad-
dress “whether the Court of Appeals correctly deter-
mined that duress is not an available defense to the
charge of felony murder under any circumstances.”5

II. STANDARD OF REVIEW

“Whether common law affirmative defenses are

available for a statutory crime and, if so, where the
burden of proof lies are questions of law.”6 As such, they
are reviewed de novo.7

2
Id. at 618.
3
Id. at 619.
4
Id.
5
People v Reichard, 503 Mich 910, 910 (2018).
6
People v Dupree, 486 Mich 693, 702; 788 NW2d 399 (2010).
7
Id.
86 505 MICH 81 [Mar

III. ANALYSIS

A. FELONY MURDER

Defendant was charged with open murder under a

felony-murder theory with armed robbery as the un-
derlying felony.8 MCL 750.316 provides, in part:
(1) . . . [A] person who commits any of the following is
guilty of first degree murder and shall be punished by
imprisonment for life without eligibility for parole:

* * *

(b) Murder committed in the perpetration of, or at-

tempt to perpetrate, arson, criminal sexual conduct in the
first, second, or third degree, child abuse in the first
degree, a major controlled substance offense, robbery,
carjacking, breaking and entering of a dwelling, home
invasion in the first or second degree, larceny of any kind,
extortion, kidnapping, vulnerable adult abuse in the first
or second degree under [MCL 750.145n], torture under
[MCL 750.85], aggravated stalking under [MCL 750.411i],
or unlawful imprisonment under [MCL 750.349b].

At common law, the felony-murder doctrine “recog-

nize[d] the intent to commit the underlying felony, in

8
Defendant was charged pursuant to MCL 767.71, which provides
that “[i]n all indictments for murder and manslaughter it shall not be
necessary to set forth the manner in which nor the means by which the
death of the deceased was caused; but it shall be sufficient in any
indictment for murder to charge that the defendant did murder the
deceased . . . .” The offense of felony murder is set forth in MCL
750.316(1)(b), which is discussed in more detail below. The offense of
armed robbery is set forth in MCL 750.529, which provides that “[a]
person who engages in conduct proscribed under [MCL 750.530] and
who in the course of engaging in that conduct, possesses a dangerous
weapon . . . , is guilty of a felony punishable by imprisonment for life or
for any term of years. If an aggravated assault or serious injury is
inflicted by any person while violating this section, the person shall be
sentenced to a minimum term of imprisonment of not less than 2 years.”
2020] PEOPLE V REICHARD 87

itself, as a sufficient mens rea for murder.”9 By contrast,

under our felony-murder statute, malice has to be
separately shown.10 As in every murder case, to convict
a person of felony murder under this statute, “it must
be shown that he acted with intent to kill or to inflict
great bodily harm or with a wanton and willful disre-
gard of the likelihood that the natural tendency of his
behavior is to cause death or great bodily harm.”11
Thus, MCL 750.316(1)(b) operates only to elevate a
second-degree murder to first-degree murder if it was
committed in the commission of one of the enumerated
felonies.12

9
People v Aaron, 409 Mich 672, 717; 299 NW2d 304 (1980). See also
id. at 689-698 (discussing the historical development of the common-law
felony-murder doctrine).
10
Id. at 733 (holding that under the Michigan felony-murder statute,
the mental element of murder is not satisfied by proof of the intention to
commit the underlying felony, but instead must be separately shown).
11
Id.; see also People v Dumas, 454 Mich 390, 397; 563 NW2d 31
(1997) (opinion by RILEY, J.) (noting that after Aaron, “the people must
prove one of the three intents that define malice in every murder case”);
id. at 414 (BOYLE, J., dissenting) (“The teaching of Aaron is that malice,
with regard to a homicide, may not be imputed from the underlying
felony.”); People v Nowack, 462 Mich 392, 401; 614 NW2d 78 (2000),
quoting People v Carines, 460 Mich 750, 758-759; 597 NW2d 130 (1999)
(“ ‘The elements of felony murder are: (1) the killing of a human being,
(2) with the intent to kill, to do great bodily harm, or to create a very
high risk of death or great bodily harm with knowledge that death or
great bodily harm was the probable result [i.e., malice], (3) while
committing, attempting to commit, or assisting in the commission of any
of the felonies specifically enumerated in [the statute . . . ].’ ”).
12
Aaron, 409 Mich at 721. One author has referred to these kinds of
statutes as “felony aggravator statutes.” Binder, The Origins of Ameri-
can Felony Murder Rules, 57 Stan L Rev 59, 141 (2004). Michigan was
not alone in adopting a statute of this type. Id. (noting that felony
aggravator statutes were enacted by 22 states, including Arkansas,
Connecticut, Delaware, Indiana, Iowa, Kansas, Kentucky, Louisiana,
Maine, Maryland, Massachusetts, Michigan, Nebraska, New Hamp-
shire, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, Wash-
ington, West Virginia, and Wyoming).
88 505 MICH 81 [Mar

B. DURESS

Defendant seeks to present a duress defense. “Du-

ress is a common-law affirmative defense.”13 To merit a
duress instruction, a defendant bears the burden of
producing some evidence from which the jury could
conclude the following:
“A) The threatening conduct was sufficient to create in
the mind of a reasonable person the fear of death or
serious bodily harm;
B) The conduct in fact caused such fear of death or
serious bodily harm in the mind of the defendant;
C) The fear or duress was operating upon the mind of
the defendant at the time of the alleged act; and
D) The defendant committed the act to avoid the
threatened harm.”[14]

Regarding the first factor, “[T]he threatening conduct

or act of compulsion must be ‘present, imminent, and
impending . . . ,’ and . . . the threat ‘must have arisen
without the negligence or fault of the person who
insists upon it as a defense.’ ”15
Historically, duress was not permitted as an affir-
mative defense to murder. In the seventeenth century,
Sir Matthew Hale wrote:
[I]f a man be desperately assaulted, and in peril of
death, and cannot otherwise escape, unless to satisfy his
assailant’s fury he will kill an innocent person then
present, the fear and actual force will not acquit him of the

13
People v Lemons, 454 Mich 234, 245; 562 NW2d 447 (1997).
14
Id. at 247, quoting People v Luther, 394 Mich 619, 623; 232 NW2d
184 (1975).
15
Lemons, 454 Mich at 245, quoting People v Merhige, 212 Mich 601,
610; 180 NW 418 (1920).
2020] PEOPLE V REICHARD 89

crime and punishment of murder, if he commit the fact; for

he ought rather to die himself, than kill an innocent[.][16]

Blackstone, nearly a century later, explained the rule

as follows:
Another species of compulsion or necessity is what our
law calls duress per minas; or threats and menaces, which
induce a fear of death or other bodily harm, and which
take away for that reason the guilt of many crimes and
misdemeanors; at least before the human tribunal. . . .
This however seems only, or at least principally, to hold as
to positive crimes, so created by the laws of society; and
which therefore society may excuse; but not as to natural
offences, so declared by the law of God, wherein human
magistrates are only the executioners of divine punish-
ment. And therefore though a man be violently assaulted,
and hath no other possible means of escaping death, but
by killing an innocent person; this fear and force shall not
acquit him of murder; for he ought rather to die himself,
than escape by the murder of an innocent.[17]

The Court of Appeals first recognized the rule in People

v Dittis, 157 Mich App 38, 41; 403 NW2d 94 (1987), in
which the Court of Appeals held that “duress is not a
valid defense to homicide in Michigan.” And it has
repeatedly recognized the rule in subsequent cases.18

16
1 Hale, History of the Pleas of the Crown, p 51.
17
4 Blackstone, Commentaries on the Laws of England, p 30.
18
See, e.g., People v Young, 120 Mich App 645, 653; 327 NW2d 329
(1982) (BEASLEY, J., dissenting) (stating that “duress is never a defense
to murder”); People v Feldmann, 181 Mich App 523, 532; 449 NW2d 692
(1990) (“The prosecution met its burden of disproving defendant’s
duress defense beyond a reasonable doubt. . . . As for defendant’s mur-
der charges, coercion was not a viable defense.”); People v Travis, 182
Mich App 389, 392; 451 NW2d 641 (1990) (“Duress is not a defense to
homicide[.]”); People v Etheridge, 196 Mich App 43, 56; 492 NW2d 490
(1992) (“However, duress is not a valid defense to homicide.”); People v
Moseler, 202 Mich App 296, 299; 508 NW2d 192 (1993) (rejecting
90 505 MICH 81 [Mar

Other jurisdictions have also recognized the common-

law rule or adopted it by statute.19
defendant’s claim that she should have been afforded a duress defense
based on Dittis when convicted of involuntary manslaughter); People v
Henderson, 306 Mich App 1, 5; 854 NW2d 234 (2014) (“[I]t is well
established that duress is not a defense to homicide.”). But see People v
Rolston, 51 Mich App 146, 148; 214 NW2d 894 (1974) (holding that the
defendant’s acquittal of murder, which resulted after the defendant
presented a duress defense, prevented further prosecution for other
crimes arising out of the same criminal transaction).
We note that several treatises state more precisely that duress is not
an affirmative defense to murder or intentional homicide, as opposed to
homicide generally. See, e.g., 2 LaFave, Substantive Criminal Law (3d
ed), Duress, § 9.7(b) (“[D]uress is no defense to the intentional taking of
life by the threatened person . . . .”); 2 Robinson, Criminal Law De-
fenses, Duress, § 177(g) (“If a legislature concludes that no pressure is
sufficient to cause the reasonable citizen to commit murder, a rule
barring a duress excuse for murder is sound.”); 40 Am Jur 2d, Homicide,
§ 107 (“It is generally held that neither duress, coercion, nor compulsion
are defenses to murder . . . .”); 40 CJS, Homicide, § 181 (“The rule
encompasses denial of the defense to all forms of murder, including
homicides resulting from an intent to do grievous bodily harm, as well as
an actual intent to kill and seems to include all other offenses where an
intent to kill is an essential element.”). Dittis is the first Michigan case
to state that duress is not a defense to “homicide,” though Dittis involved
first-degree murder. Nevertheless, as stated above, Dittis’s statement
has been applied more broadly. See, e.g., Moseler, 202 Mich App at 299
(relying on Dittis to determine that duress is not a defense to involun-
tary manslaughter). We overrule Dittis and its progeny to the extent
they purported to adopt this overly broad rule. Because it is not
necessary in the instant case to consider whether duress may be an
affirmative defense to any form of homicide other than felony murder,
we do not consider this question further.
19
See 2 Robinson, Criminal Law Defenses, Duress, § 177 (noting that
“the common law exclusion of duress . . . is also prevalent in modern
statutes”); id. at n 58 (listing cases and statutes from 16 states that
prohibit the use of duress as an affirmative defense to murder). But see
MacKool v State, 363 Ark 295, 302; 213 SW3d 618 (2005) (allowing
duress as an affirmative defense to murder on statutory grounds); State
v Heinemann, 282 Conn 281, 298; 920 A2d 278 (2007) (same). Addition-
ally, in some states, the fact that a defendant acted under duress may
reduce his or her guilt. See, e.g., Commonwealth v Vasquez, 462 Mass
827, 835; 971 NE2d 783 (2012) (“Although we hereby reject duress as a
2020] PEOPLE V REICHARD 91

C. WHETHER DURESS IS AN AFFIRMATIVE

DEFENSE TO FELONY MURDER

This Court has not directly addressed whether du-

ress is a defense to felony murder,20 but the Court of
Appeals has considered this argument. In People v
Gimotty, 216 Mich App 254; 549 NW2d 39 (1996), the
defendant was convicted of felony murder. A coperpe-
trator had gone into a women’s clothing store and
stolen six dresses before getting into defendant’s ve-
hicle, which defendant was driving. The police pursued
them, and the defendant got into a fatal collision with
a third party. The defendant claimed that he did not
know his coperpetrator planned to steal any items and
that his coperpetrator had slapped him on the head to
force him to drive. The Court of Appeals found that no
duress instruction was warranted because “[i]t is well
settled that duress is not a defense to homicide.”21
defense to deliberately premeditated murder, murder committed with
extreme atrocity or cruelty, and murder in the second degree, we do not
foreclose the possibility that, in exceptional and rare circumstances of
duress, justice may warrant reduction of a defendant’s guilt in our
review under G.L. c. 278, § 33E.”).
20
In People v Repke, 103 Mich 459, 472; 61 NW 861 (1895), this Court
determined that a defendant convicted of first-degree murder was not
entitled to a duress instruction because the defendant claimed he was
threatened three days before the crime. In support of its holding, the
Court noted that “[t]he necessity which will excuse a man for breach of
law must be instant and imminent.” Id. See also Lemons, 454 Mich at
247. Although Repke may be read as implying that duress may be
asserted as a defense to felony murder in an appropriate case, any such
implication was not deliberately examined or decided by the Court and
thus carries no precedential weight. See People v Graves, 458 Mich 476,
480; 581 NW2d 229 (1998), citing People v Jamieson, 436 Mich 61, 79;
461 NW2d 884 (1990) (opinion by BRICKLEY, J.) (discussing standards for
stare decisis).
21
Gimotty, 216 Mich App at 257, citing Etheridge, 196 Mich App at 56;
Moseler, 202 Mich App at 299; and Travis, 182 Mich App at 392.
Moreover, in Gimotty, the Court of Appeals also determined that the
92 505 MICH 81 [Mar

However, Gimotty’s conclusion makes little sense in

light of the rationale for precluding the use of duress as
an affirmative defense for other types of murder: that
“though a man be violently assaulted, and hath no
other possible means of escaping death, but by killing
an innocent person; this fear and force shall not acquit
him of murder; for he ought rather to die himself, than
escape by the murder of an innocent.”22 That is, when
someone has a choice between sparing his or her own
life or that of an innocent, the law expects that indi-
vidual to spare the innocent person’s life. But felony
murder does not present that choice. Instead, in the
felony-murder context, the individual faces a choice
between whether to spare his or her own life or aid in
a lesser felony (i.e., one that does not include as an
element the killing of an innocent).
As the Oklahoma Court of Criminal Appeals ex-
plained in Tully v State, 730 P2d 1206, 1210; 1986 OK
CR 185 (Okla, 1986):
It is compatible with the common law policy of duress that
the defense should attach where the defendant consented,
by duress, only to the commission of the lesser crime and
not to the killing, and, at the time of his participation in
the lesser felony, had reason to believe his life or the life of
another was immediately in danger unless he partici-
pated.[23]

In McMillan v State, 428 Md 333, 353; 51 A3d 623

(2012), the court similarly explained that “[Black-
defendant could not assert a duress defense to the underlying felony
because he could not show that he was threatened with conduct of
sufficient magnitude to create fear of death or serious injury in the
minds of reasonable persons. Gimotty, 216 Mich App at 257.
22
4 Blackstone at 30; see also 1 Hale at 51.
23
Id.
2020] PEOPLE V REICHARD 93

stone’s] rationale disappears when the sole ground for

the murder charge is that the defendant participated
in an underlying felony, under duress, and the defen-
dant’s co-felons unexpectedly killed the victim, thereby
elevating the charge to felony murder.”24
Moreover, holding that duress may not be asserted
as an affirmative defense to felony murder could lead
to illogical and “unacceptable results.”25 If the under-
lying felony alone were charged, duress could be used
as an affirmative defense. But, where they are charged
together, a defendant might be acquitted of the under-
lying felony on the basis of duress, but then be found
guilty of felony murder.
Our conclusion is supported by courts and commen-
tators alike. The Supreme Court of Kansas, relying on
Tully, concluded “that, where compulsion is a defense
to an underlying felony . . . so that the felony is justi-
fiable, compulsion is equally a defense to charges of
felony murder.”26 The Massachusetts Supreme Judicial
Court similarly reasoned, “As duress is available
against a charge of armed robbery, . . . it would seem to
follow that it should also apply to armed robbery
eventuating in death, i.e., a felony murder, especially

24
Id. (citation and quotation marks omitted). See also Rodriguez v
State, 174 So 3d 502, 506-507 (Fla App, 2015), citing McMillan, 428 Md at
353.
The Court of Appeals held that duress is not an affirmative defense
to aiding and abetting in the underlying felony for felony murder
because it is not a defense to aiding and abetting a murder. Reichard,
323 Mich App at 617. But the situations are not analogous. As explained,
Blackstone’s rationale is not applicable in the felony-murder context, in
which someone faces a choice between sparing his or her own life or
aiding in a lesser felony. Blackstone’s rationale is applicable though
when someone has a choice between sparing his or her own life or aiding
and abetting the murder of an innocent person.
25
McMillan, 428 Md at 354.
26
State v Hunter, 241 Kan 629, 642; 740 P2d 559 (1987).
94 505 MICH 81 [Mar

since religious or ethical objections would be felt less

strongly here than in a case of premeditated murder.”27
And, according to LaFave, “[D]uress is no defense to
the intentional taking of life by the threatened person;
but it is a defense to a killing done by another in the
commission of some lesser felony participated in by the
defendant under duress.”28

27
Commonwealth v Robinson, 382 Mass 189, 201 n 14; 415 NE2d 805
(Mass, 1981). Indeed, this appears to be the prevailing view. See also
Pugliese v Commonwealth, 16 Va App 82, 95-96; 428 SE2d 16 (1993);
State v Gay, 334 NC 467, 491-492; 434 SE2d 840 (1993); People v
Serrano, 286 Ill App 3d 485, 490-493; 676 NE2d 1011 (1997); People v
Anderson, 28 Cal 4th 767, 784; 50 P3d 368 (2002); McMillan, 428 Md at
353; Rodriguez, 174 So 3d at 506-507; Doubleday v People, 364 P3d 193,
197-198; 2016 CO 3 (Colo, 2016).
Of the state courts reaching the opposite conclusion, the vast majority
are distinguishable because they have refused to recognize duress as an
affirmative defense to felony murder on statutory grounds. See State v
Moretti, 66 Wash 537, 540; 120 P 102 (1912) (basing its holding on a
statute allowing for a duress defense for any crime “except murder”);
State v Encinas, 132 Ariz 493, 496; 647 P2d 624 (1982) (basing its holding
on a statute providing that duress “is unavailable for offenses involving
homicide or serious physical injury”); State v Rumble, 680 SW2d 939,
940-941 & n 3 (Mo, 1984) (basing its holding on a statute providing for a
duress defense except “[a]s to the crime of murder”); Moore v State, 697
NE2d 1268, 1273 & n 2 (Ind Ct App, 1998) (basing its holding on a statute
providing for a duress defense except for “offense[s] against the person”);
State v Proctor, 585 NW2d 841, 843 (Iowa, 1998) (basing its holding on a
statute disallowing a duress defense for “act[s] by which one intentionally
or recklessly causes physical injury to another”). Because Michigan has
no similar statute, we find these cases unpersuasive. The only case we
could locate reaching the opposite conclusion without reliance on a
statute is State v Perkins, 219 Neb 491, 499; 364 NW2d 20 (1985). There,
the court held, “The trial court did not err in refusing to instruct as to
duress. As established in State v. Fuller, 203 Neb. 233, 278 N.W.2d 756
(1979), supp. op. 204 Neb. 196, 281 N.W.2d 749, duress is not a defense to
a charge of homicide.” Perkins, 219 Neb at 499. But neither Perkins nor
Fuller, on which Perkins relies, provides any further analysis to support
its holdings. Fuller, 203 Neb at 243 (“Duress or compulsion is no excuse
to a charge of homicide.”), citing 22 CJS, Criminal Law, § 44, p 135.
Therefore, we find Perkins’s reasoning unpersuasive.
28
2 LaFave, § 9.7(b).
2020] PEOPLE V REICHARD 95

The prosecution argues that, while duress may be

allowed as an affirmative defense to felony murder
under the common-law felony-murder doctrine, it
should not be an affirmative defense under MCL
750.316(1)(b). Specifically, because duress may not be
asserted as an affirmative defense to second-degree
murder, and MCL 750.316(1)(b) operates only to el-
evate a second-degree murder to first-degree murder if
it was committed in the commission of one of the
enumerated felonies, the prosecution urges us to con-
clude that duress may not be asserted as a defense to
felony murder.29 However, that conclusion is a non
sequitur. The fact that MCL 750.316(1)(b) separately
requires malice does not mean that duress cannot be
an affirmative defense to felony murder since a suc-
cessful defense would negate the aggravator element
(i.e., commission of the underlying crime), by showing
that the defendant was justified in committing the
underlying felony.30 With the aggravator element ne-
gated, a prosecutor would still be able to proceed
against the defendant on the lesser included offense of

29
See People v Carp, unpublished per curiam opinion of the Court of
Appeals, issued December 30, 2008 (Docket No. 275084), p 6 (“Signifi-
cantly, felony-murder in Michigan cannot be established solely by the
intent to commit a felony. [Aaron, 409 Mich] at 727. Rather, the
requirement of malice to establish felony-murder is the same as the
requirement of malice to establish second-degree murder; ‘the intent to
kill, intent to do great bodily harm, or wanton and willful disregard of
the likelihood that the natural tendency of a person’s behavior is to
cause death or great bodily harm.’ Id. at 727-728. Thus, a finding of
felony-murder necessarily entails a finding of malice to establish
second-degree murder. Given that duress is not a defense to second-
degree murder, duress cannot be a defense to felony-murder.”).
30
Lemons, 454 Mich at 247 n 16 (“Although there has been disagree-
ment among authorities with regard to this issue, we are persuaded that
the correct view is that ‘even though [the defendant] has done the act the
crime requires and has the mental state which the crime requires, his
conduct which violates the literal language of the criminal law is
96 505 MICH 81

second-degree murder if the evidence supported that

charge.31 In other words, the defendant’s duress de-
fense to the underlying felony would only prevent the
enhancement of second-degree murder to first-degree
murder.

IV. CONCLUSION

In sum, we hold that duress may be asserted as an

affirmative defense to felony murder if it is a defense to
the underlying felony. That Michigan has a separate
malice requirement for felony murder does not alter
our conclusion.32 We therefore reverse the Court of
Appeals’ judgment and remand this case to the trial
court for proceedings not inconsistent with this opin-
ion. On remand, the trial court must provide a duress
instruction if such an instruction is requested by
defendant and if a rational view of the evidence sup-
ports the conclusion that defendant aided Beatty with
the robbery out of duress.33 We also overrule Gimotty,
as well as People v Etheridge, 196 Mich App 43, 56; 492
NW2d 490 (1992), to the extent they hold that duress is
not an affirmative defense to felony murder.

MCCORMACK, C.J., and MARKMAN, ZAHRA, BERNSTEIN,

CLEMENT, and CAVANAGH, JJ., concurred with VIVIANO, J.
justified because he has thereby avoided a harm of greater magni-
tude.’ ”), quoting 1 LaFave & Scott, Substantive Criminal Law, § 5.3,
p 615 (citations omitted).
31
People v Carter, 395 Mich 434, 437; 236 NW2d 500 (1975) (“We hold
that there were lesser included offenses to first-degree felony-murder.
Second-degree murder is always a lesser included offense of first-degree
murder.”).
32
In its amicus brief, the Prosecuting Attorneys Association of Michi-
gan contends that the burden of persuasion for duress should be on the
defendant. However, because no party addressed this issue, we decline to
reach it.
33
In re Piland, Minors, 503 Mich 1032, 1033 (2019).
 In re PLANS OF ELECTRIC UTILITIES 97

In re RELIABILITY PLANS OF
ELECTRIC UTILITIES FOR 2017–2021

Docket Nos. 158305 through 158308. Argued on application for leave to

appeal November 7, 2019. Decided April 2, 2020.
The Association of Businesses Advocating Tariff Equity (ABATE)
(Docket Nos. 158305 and 158306) and Energy Michigan, Inc.
(Docket Nos. 158307 and 158308) each appealed an order of the
Michigan Public Service Commission (MPSC) implementing MCL
460.6w. The MPSC order imposed a local clearing requirement on
individual alternative electric suppliers. The name “alternative
electric suppliers” reflects that these providers give consumers a
choice (i.e., an alternative) about the upstream provider of their
power; it has no relationship to renewable energy. The local
clearing requirement represented the amount of capacity resources
that were required to be in the local resource zone in which the
electric supplier’s demand was served. Before MCL 460.6w was
enacted, the MPSC did not impose a local clearing requirement on
individual alternative electric suppliers; the Midcontinent Inde-
pendent System Operator (MISO)—the regional transmission or-
ganization responsible for managing the transmission of electric
power in a large geographic area—applied a local clearing require-
ment as a whole to the geographic area covered by MISO’s local
clearing requirement. ABATE and Energy Michigan challenged
the MPSC’s interpretation of MCL 460.6w, and Energy Michigan
further asserted that the MPSC order improperly imposed new
rules that were not promulgated in compliance with the Adminis-
trative Procedures Act (APA), MCL 24.201 et seq. The Court of
Appeals, METER, P.J., and GADOLA and TUKEL, JJ., consolidated the
appeals and reversed the MPSC’s decision, holding that no provi-
sion of MCL 460.6w clearly and unmistakably authorized the
MPSC to impose a local clearing requirement on individual alter-
native electric suppliers and that the MPSC could impose a local
clearing requirement only exactly as MISO does—on a zonal basis.
325 Mich App 207 (2018). Accordingly, the Court of Appeals
concluded that the MPSC was not permitted to impose a local
clearing requirement on any provider individually. Because the
Court of Appeals held that MCL 460.6w did not provide the MPSC
with the authority to impose a local clearing requirement on
98 505 MICH 97 [Apr

individual alternative electric suppliers, the Court of Appeals

found it unnecessary to reach the question whether the MPSC’s
decision concerning the local clearing requirement resulted in
improperly imposed rules that were not promulgated in compli-
ance with the APA. The MPSC and Consumers Energy Company
sought leave to appeal in the Supreme Court, and the Supreme
Court ordered and heard oral argument on whether to grant the
applications or take other action. 504 Mich 894 (2019); 504 Mich
895 (2019).
In a unanimous opinion by Chief Justice MCCORMACK, the
Supreme Court, in lieu of granting leave to appeal, held:
MCL 460.6w imposes resource adequacy requirements on elec-
tric service providers in Michigan and delegates authority to the
MPSC to plan for energy capacity in the retail market by setting
and enforcing capacity obligations for all energy providers in the
state. MCL 460.6w authorizes the MPSC to determine both the
local clearing requirement and the planning reserve margin re-
quirement with the same text; no statutory language imposes
additional requirements or limitations on the MPSC for setting the
local clearing requirement versus the planning reserve margin
requirement. However, despite the identical language describing
the MPSC’s authority for determining both elements of its capacity
obligation, the Court of Appeals concluded that there was a
difference based on its review of the entire statute. But that
conclusion was unfounded; in fact, a contextual review of the
statute supported the opposite conclusion. Furthermore, MCL
460.6w requires cooperation with MISO, not adopting MISO’s
methodology for one capacity obligation only. Nor does the require-
ment that a capacity charge must coordinate with, and not conflict
with, MISO’s planning process require the MPSC to duplicate
MISO’s zonal local clearing requirement. Accordingly, the Court of
Appeals misread MCL 460.6w when it read into the statutory text
a requirement that the MPSC impose Michigan’s local clearing
requirement using the same methodology MISO does. The Court of
Appeals further misunderstood the differences between the whole-
sale and retail capacity markets when it held that the MPSC could
not impose a local clearing requirement on alternative electric
suppliers individually. The planning reserve margin requirement
in MCL 460.6w includes no measure of in-zone resources as
MISO’s does with its zonal resource credits; instead, MCL 460.6w
accounts for in-zone capacity in the providers’ individual local
clearing requirement. And the Court of Appeals did not make clear
what the relevant “zone” would be in its interpretation of the local
clearing requirement. If it meant that the MPSC could only impose
2020] In re PLANS OF ELECTRIC UTILITIES 99

a local clearing requirement that maps exactly onto MISO’s zonal

measurement, that interpretation would make little sense given
MISO’s zone geography and the MPSC’s authority. A contextual
understanding of the MCL 460.6w capacity planning process and
MISO’s process supports a plain reading of the statute. In requir-
ing that each provider, including alternative electric suppliers,
meet an individual local clearing requirement, the MPSC did what
the statute required of it to ensure reliability of retail electric
markets in Michigan. Accordingly, the Court of Appeals erred when
it held that the MPSC could not impose a local clearing require-
ment on alternative electric suppliers individually.
Reversed and remanded to the Court of Appeals for further
proceedings, including addressing whether the MPSC’s order
complied with the APA.

PUBLIC UTILITIES — ALTERNATIVE ELECTRIC SUPPLIERS — IMPOSITION OF A LOCAL

CLEARING REQUIREMENT BY THE PUBLIC SERVICE COMMISSION.
MCL 460.6w imposes resource adequacy requirements on electric
service providers in Michigan and delegates authority to the
Michigan Public Service Commission (MPSC) to plan for energy
capacity in the retail market by setting and enforcing capacity
obligations for all energy providers in the state; the MPSC may
impose a local clearing requirement on alternative electric
suppliers individually.

Dana Nessel, Attorney General, Fadwa A.

Hammoud, Solicitor General, B. Eric Restuccia, Chief
Legal Counsel, Ann M. Sherman, Assistant Solicitor
General, and Steven D. Hughey and Spencer A. Sattler,
Assistant Attorneys General, for the Michigan Public
Service Commission.

Kelly M. Hall and Gary A. Gensch, Jr., for Consum-

ers Energy Company.

Clark Hill PLC (by Robert A. Strong and Michael J.

Pattwell) for the Association of Businesses Advocating
Tariff Equity.

Varnum, LLP (by Laura Chappelle, Tim Lundgren,

and Brion B. Doyle) for Energy Michigan, Inc.
100 505 MICH 97 [Apr

Amici Curiae:

Rivenoak Law Group, PC (by Valerie J. M. Brader

and Catherine T. Dobrowitsky) for the Michigan Cham-
ber of Commerce.

Quarles & Brady LLP (by Bradley D. Jackson) for

the Midcontinent Independent System Operator, Inc.

Lauren DuVal Donofrio for DTE Electric Company.

Sean P. Gallagher PLC (by Sean P. Gallagher) for

Charles River Laboratories, Inc.; the Electricity Con-
sumers Resource Council; and the United States Steel
Corporation.

Foster, Swift, Collins & Smith, PC (by Michael D.

Homier and Laura J. Genovich) for the Foundry Asso-
ciation of Michigan and the Michigan Schools Energy
Cooperative.

Barnes & Thornburg LLP (by Charles M. Denton and

Aaron D. Lindstrom) for the Michigan Chemistry Coun-
cil and the Grand Rapids Area Chamber of Commerce.

MCCORMACK, C.J. In 2016, the Legislature passed

Public Act 341 to ensure reliability of the state’s electric
grid. The act charged the Michigan Public Service
Commission (MPSC), which regulates retail electricity
markets, with setting what are known as “capacity
requirements” for a four-year period. Those capacity
requirements are imposed upon the state’s electricity
providers. MCL 460.6w. As explained below, “capacity”
refers roughly to the electrical system’s ability to meet
future demand, especially at times of very high demand.
At issue here is what exactly the MPSC can require
of one category of those providers, known as “alterna-
2020] In re PLANS OF ELECTRIC UTILITIES 101

tive electric suppliers,” under the act. Alternative

electric suppliers sell electricity to retail customers in
Michigan, but they use other providers’ infrastruc-
ture to deliver it. The name “alternative electric
suppliers” reflects that these providers give consum-
ers a choice (i.e., an alternative) about the upstream
provider of their power; it has no relationship to
renewable energy.
As the Court of Appeals correctly observed, Act 341
requires every provider in the marketplace to meet the
capacity requirements set by the MPSC, and capacity is
measured using both a “planning reserve margin re-
quirement” and a “local clearing requirement.” In re
Reliability Plans of Electric Utilities for 2017–2021, 325
Mich App 207, 224-225; 926 NW2d 584 (2018). To
explain, the planning reserve margin requirement is the
total amount of electricity that a given provider must
make available to meet its customers’ demand (think
quantity). The local clearing requirement is the amount
of that electricity which the provider must produce or
purchase locally (think location). Important to the ques-
tion we decide here, these are not original concepts.
Although the terms have slightly different meanings in
different contexts, the body to whom the federal regu-
lator (the Federal Energy Regulatory Commission) has
delegated operational responsibility over the wholesale
electricity markets affecting most of Michigan, the Mid-
continent Independent System Operator (MISO), also
uses these terms for its capacity planning.
While the Court of Appeals also correctly observed
that the act requires each provider to meet the planning
reserve margin requirement and the local clearing re-
quirement as set by the MPSC, it held that “no provision
of MCL 460.6w clearly and unmistakably authorizes the
MPSC to impose a local clearing requirement on indi-
102 505 MICH 97 [Apr

vidual alternative electric [suppliers].” Id. at 224. The

panel’s mistaken conclusion hinged on its misunder-
standing that the MPSC could impose a local clearing
requirement only exactly as MISO does. Id. at 225-226.
In particular, the panel misread the statute’s require-
ments that the MPSC coordinate with the organizations
that are responsible for federal regulation of the whole-
sale electricity market—in this case, MISO—to mean
that the MPSC must impose a local clearing require-
ment in the very same methodological manner that
MISO does. Id. at 226. MISO, a different regulatory
body from the MPSC with a very different jurisdiction
and mandate, imposes a local clearing requirement with
reference to certain geographic zones. But Act 341 does
not refer to or contemplate zones at all. Moreover, and
confusingly, the panel did not say what the relevant
“zone” is or might be under MCL 460.6w. And while the
panel focused on the lack of clear language allowing the
MPSC to impose the local clearing requirement on
alternative electric suppliers individually, its holding
that the MPSC could impose a local clearing require-
ment only on providers together within a zone means
that the MPSC may not impose a local clearing require-
ment on any provider individually, a logical inference
that calls the panel’s conclusion into still greater ques-
tion. In short, its holding misread the statutory lan-
guage, misunderstood MISO’s wholesale capacity mea-
surements, and failed to appreciate how the MPSC’s
regulatory jurisdiction differs from MISO’s.
The Legislature authorized the MPSC to set a plan-
ning reserve margin requirement and a local clearing
requirement for each energy provider in the state,
including alternative electric suppliers, and required
each, in turn, to meet those capacity measurements
individually or face the consequences set by statute. We
reverse and remand to the Court of Appeals for further
proceedings not inconsistent with this opinion.
2020] In re PLANS OF ELECTRIC UTILITIES 103

I. FACTS AND PROCEDURAL HISTORY

A. ELECTRICITY MARKETS AND REGULATION

Background
Electricity is unique. First, it cannot be stored in
very large quantities (yet). Second, for technical rea-
sons implied by the laws of physics (not among the
laws this Court interprets authoritatively), the sup-
ply of electricity must match demand in real time;
otherwise, the electrical system is susceptible to mas-
sive and highly disruptive blackouts and brownouts,
which can cascade across the state and the country.
Third, much of everyday life depends on its reliable
supply, from smartphone addiction to the operation of
businesses to the defense of the nation. Given elec-
tricity’s distinct qualities and our dependence on its
ready availability for virtually everything, state and
federal governments regulate power markets care-
fully, and the regulatory regime is complex.
By way of relevant background, state governments
regulate retail power markets, while the federal gov-
ernment regulates wholesale power markets—where
electricity generators send power to those who will
ultimately deliver it to consumers—and the transmis-
sion of electricity among states.
Given the importance of meeting demand, the fed-
eral government also regulates “capacity.” As noted
above, capacity is the ability to satisfy demand for
electricity when demand peaks. In a capacity market,
electricity suppliers make the guarantee that they can
indeed meet demand at the hypothetical highest-use
moments.1

1
Regulators overseeing capacity calculate peak demand using the
hottest days of the year and add a “reserve margin”—that is, some
104 505 MICH 97 [Apr

Michigan has four categories of electricity provid-

ers that sell to retail customers: (1) investor-owned
utilities, commonly referred to, simply, as utilities (or
public utilities); (2) municipally owned utilities (mu-
nis); (3) cooperative electric utilities (coops); and
(4) alternative electric suppliers. The Legislature del-
egated regulatory authority to the MPSC to “regulate
all rates, fares, fees, charges, services, rules, condi-
tions of service, and all other matters pertaining to
the formation, operation, or direction of public utili-
ties.” MCL 460.6(1).2 Because alternative electric sup-
pliers are not public utilities, they are not subject to
the MPSC’s complete power and jurisdiction, although
they are subject to the MPSC for some purposes.
Compare MCL 460.6 with MCL 460.10g(1)(a).
Evolving regulatory regimes
Historically, geography determined a consumer’s
electricity provider. The customer base for early utili-
ties, munis, and coops was located within the geo-
graphic areas each served. For practical reasons—the
extra capacity—to ensure that suppliers meet even unexpectedly high
spikes of demand. See, e.g., Coalition of Midwest Power Producers, Inc
v Midcontinent Indep Sys Operator, Inc, 166 FERC ¶ 61,159, at p 3
(2019). For this opinion, it is sufficient to understand that the
regulatory goal is making sure supply will always be adequate to meet
demand. Electrical capacity is sometimes expressed intuitively by
analogy to a shopping mall parking lot. Shopping malls typically build
parking lots with far more space than is required on average days. But
they do so to plan for the very unusual days (during the holiday
shopping periods) when the demand for parking space spikes. But for
such sound planning, malls could not accommodate peak demand for
parking. The importance of a stable electrical supply makes planning
for peak electricity demand essential. Thus, electricity providers offer
capacity in the form of promises to supply and demonstrations that
they have resources they can call upon to meet demand.
2
Munis are exempt from this degree of MPSC regulation, MCL 460.6,
as are coops, which are owned and self-regulated by the members they
serve, MCL 460.33.
2020] In re PLANS OF ELECTRIC UTILITIES 105

wires connecting providers and consumers only ran so

far and could carry only so much electricity—a pro-
vider could sell electricity only within its geographical
boundary, and a consumer could not receive service
from a provider outside that boundary. This was the
noncompetitive era of electricity.
The energy shortages of the 1970s along with tech-
nological and infrastructure improvements over recent
decades eventually led to policy changes toward in-
creased competition in electricity markets in many
parts of the country. Reflecting such dynamics, the
Legislature, in 2000, passed the Customer Choice and
Electricity Reliability Act, Public Acts 141 and 142 of
2000, MCL 460.10 et seq., in part to encourage the
MPSC to promote competition in Michigan’s electricity
market. MCL 460.10(b). The acts allowed Michigan
electric customers the opportunity to purchase electric-
ity from an alternative electric supplier—a provider
other than a local utility. 2000 PA 141. In 2008, the
Legislature passed Public Act 286 to cap alternative
electric suppliers’ market share by tasking the MPSC
with ensuring that no more than 10% of any utility’s
average retail sales are supplied with electricity from an
alternative electric supplier.3 MCL 460.10a(1)(a). As
noted above, alternative electric suppliers provide elec-
tricity to retail customers but do not physically deliver
it to them. MCL 460.10g(1)(a). They meet demand by
delivery through the existing local infrastructure.

3
This applies generally to all providers with some limits. Any retail
customer of a coop with a peak load of one megawatt or greater shall be
provided the opportunity to choose an alternative electric supplier. MCL
460.10x(1). The governing bodies of munis possess the authority to
determine whether to permit their customers to choose an alternative
electric supplier subject to the governing body’s continuing jurisdiction
to regulate rates, charges, terms, and conditions. MCL 460.10y(1).
106 505 MICH 97 [Apr

Electricity sold by alternative electric suppliers may

even be generated outside Michigan.4
While the MPSC regulates in-state retail energy
markets in Michigan, the Federal Energy Regulatory
Commission (FERC) regulates interstate wholesale en-
ergy and transmission markets under the Federal
Power Act, 16 USC 791a et seq. 16 USC 824; see also Fed
Energy Regulatory Comm v Electric Power Supply
Ass’n, 577 US 260, 264-265; 136 S Ct 760; 193 L Ed 2d
661 (2016). This federal-wholesale and state-retail di-
vide characterized electricity regulation for decades.5
The federal and state regulators may share and coor-
dinate responsibility over capacity, sometimes referred
to as “resource adequacy.” Federal and state regula-
tors, however, both aim to ensure that suppliers of
electricity have enough capacity so that customers
have adequate resources available to them (and at fair
prices) when demand is high.
The FERC has described this complicated, shared
responsibility as follows:
[T]he question of jurisdiction over resource adequacy is a
complex matter that represents “the confluence of state-
federal jurisdiction.” While we are cognizant of the tradi-
tional role of state and local entities in regulating resource
adequacy, we are also aware of our responsibility under the

4
Not every state allows alternative electric suppliers to engage in its
retail electricity market. The 17 states that do, including Michigan, are
considered part of a more competitive retail market. The states allowing
some degree of choice are California, Connecticut, Delaware, Illinois,
Maine, Maryland, Massachusetts, Michigan, New Hampshire, New
Jersey, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Texas,
and Virginia. Competitive retail markets present a more complicated
regulatory puzzle because alternative electric suppliers may obtain
energy from another state and sell it within the state.
5
See generally Nordhaus, The Hazy “Bright Line”: Defining Federal
and State Regulation of Today’s Electric Grid, 36 Energy L J 203 (2015).
2020] In re PLANS OF ELECTRIC UTILITIES 107

[Federal Power Act] to ensure the reliability of the system

and that wholesale rates are just and reasonable. We will
defer to state and local entities’ decisions when possible on
resource adequacy matters, but in doing so we will not
shirk our congressionally-mandated responsibilities. We
find that the adequacy of resources can have a significant
effect on wholesale rates and services and therefore is
subject to Commission jurisdiction. [California Indep Sys
Operator Corp, 119 FERC ¶ 61,076, at p 212 (2007) (cita-
tion omitted).]

In short, because capacity (resource adequacy) has

wholesale as well as retail implications, both federal
and state governments regulate it.
Since 1999, the FERC has granted regional insti-
tutions known as Regional Transmission Organiza-
tions the authority to oversee some aspects of energy
markets within large regional areas in order to im-
prove efficiency and grid reliability, eliminate oppor-
tunity for discriminatory transmission practices, im-
prove market performance, and facilitate lighter
direct federal regulation. Regional Transmission Or-
ganizations, 89 FERC ¶ 61,285, at p 3 (1999). Re-
gional Transmission Organizations are independent
bodies formed as collaborative efforts between public
utilities, nonpublic utilities, state officials, and all
affected interest groups to address all industry opera-
tional and reliability issues. Regional Transmission
Organizations, 90 FERC ¶ 61,201, at pp 1, 4 (2000).
Participation in a Regional Transmission Organiza-
tion is voluntary for all members—but the FERC’s
goal was that all providers would promptly partici-
pate. Id. at 8-9. MISO is a Regional Transmission
Organization. Midwest Indep Transmission Sys Op-
erator, Inc, 97 FERC ¶ 61,326, at p 1 (2001).6

6
MISO has since been renamed. It is now known as the Midcontinent
Independent System Operator, not the Midwest Independent System
Operator, as it was in its 2001 application.
108 505 MICH 97 [Apr

Federal capacity requirements within MISO

MISO has been the primary Regional Transmission
Organization overseeing the wholesale electricity mar-
kets in the Midwest, including most of Michigan, since it
was authorized by the FERC in 2001.7 Id. MISO’s
capacity market includes resource adequacy planning
for its wholesale electric market. In plain English,
MISO oversees a market to ensure that the supply of
electricity will be sufficient to satisfy unexpectedly
high demand. It does so looking ahead for a period of
one year, successively.
MISO has divided its geographical jurisdiction into
10 “local resource zones” to maximize efficiency in the
different wholesale markets. See Figure 1 below.
Figure 1. Map of MISO’s United States Region,
Separated by Zone.8

7
The MISO coverage region includes at least parts of 15 states:
Arkansas, Illinois, Indiana, Iowa, Kentucky, Louisiana, Michigan, Min-
nesota, Mississippi, Missouri, Montana, North Dakota, South Dakota,
Texas, and Wisconsin.
8
MISO, 2019/2020 Planning Resource Auction (PRA) Results
(April 12, 2019), p 5, available at <https://perma.cc/5VVH-UGUH> (ac-
cessed February 24, 2020).
2020] In re PLANS OF ELECTRIC UTILITIES 109

Michigan participates in two of MISO’s zones. Most

of the Lower Peninsula is in Local Resource Zone 7 (all
but the southwest corner of the state, which MISO does
not regulate at all; we will return to that point later),9
and the Upper Peninsula is in Zone 2, along with most
of Wisconsin.
The federal capacity planning process—through
MISO—works about like this: each annual planning
year, MISO requires all energy providers within a
given MISO zone, including alternative electric suppli-
ers, to submit documentation of the electric output
each provider expects to be able to reliably produce
during the upcoming year. MISO uses this reported
amount to regulate capacity. In connection with the
same forecasting, MISO also sets what it calls a
planning reserve margin requirement for each pro-
vider. Midcontinent Indep Sys Operator, Inc, 165 FERC
¶ 61,067, at p 2 (2018). MISO’s planning reserve mar-
gin requirement is largely, but not only, a quantity
measure; it also includes a location requirement. That
is, the planning reserve margin requirement requires
each provider to have sufficient “Zonal Resource Cred-
its” from within a given MISO zone. Put differently, to
meet its planning reserve margin requirement, as

9
The southwest portion of Michigan’s Lower Peninsula is not
included in any MISO region on this map. Although most providers
in Michigan joined MISO and are included in one of these two MISO
zones, the providers in the southwest corner of the Lower Peninsula did
not. Instead, they joined a different FERC-approved Regional Transmis-
sion Organization, PJM Interconnection, which coordinates and
oversees wholesale electricity markets across all or part of 13 states
(Delaware, Illinois, Indiana, Kentucky, Maryland, Michigan, New
Jersey, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia,
and West Virginia) and the District of Columbia. See FERC, Electric
Power Markets <https://www.ferc.gov/market-assessments/mkt-electric
/overview.asp> (accessed February 24, 2020) [https://perma.cc/9YVJ-
JDGF].
110 505 MICH 97 [Apr

required by MISO, a provider must demonstrate the

availability of not only enough capacity, but enough
local capacity.
A local element is an important part of capacity
planning because when there are insufficient local
resources available to meet demand, resources must
come from afar. Given the constraints of the electrical
grid in moving power large distances from state to
state, distant resources can undermine reliability. See,
e.g., Borenstein & Bushnell, Electricity Restructuring:
Deregulation or Reregulation?, 23 Reg 46, 51 (2000).
Thus, there is a connection between the efficient and
reliable supply of electricity, on the one hand, and
meeting demand at least in part through local re-
sources, on the other hand, which is why efficiency still
requires some geographically based planning.
At the risk of slight oversimplification (a risk worth
running in this context), technological and infrastruc-
tural dynamics presented the opportunity for greater
competition by making possible the upstream supply of
electricity from providers beyond a local utility only up
to a point. To some extent, though, the supply of
electricity is still constrained by local and regional
factors. There is thus a trade-off between promoting
competition in the form of facilitating supply from
alternative and potentially far-off sources and protect-
ing reliability by ensuring that most demand is satis-
fied locally and regionally to avoid the congestion that
threatens reliability.
To help strike that balance, MISO determines the
amount of local energy required by a provider’s plan-
ning reserve margin requirement in part by imposing
the local clearing requirement. The local clearing re-
quirement establishes the total amount of capacity
that must originate within a MISO zone to reduce the
2020] In re PLANS OF ELECTRIC UTILITIES 111

risk of blackouts. Midcontinent Indep Sys Operator,

Inc, 165 FERC ¶ 61,067, at p 2 (2018). MISO deter-
mines its local clearing requirement first by calculat-
ing the amount of resources a zone’s grid could reason-
ably be expected to import during peak demand times.
This provides an indication of the extent to which
congestion constraints limit the amount of out-of-zone
resources that can be used to satisfy (peak) demand.
The rest must therefore be supplied locally or zonally
in order to meet that demand. Midcontinent Indep Sys
Operator, Inc, 148 FERC ¶ 61,091, at p 2 (2014). Thus
the local clearing requirement is a component of each
provider’s planning reserve margin obligation, and
MISO’s “Zonal Resource Credits” are used to verify
satisfaction of the local clearing requirement.
Stay with us. There are three ways an electricity
provider can accumulate the Zonal Resource Credits to
satisfy MISO’s version of the local clearing require-
ment, but one is less attractive than the others. It can:
(1) self-supply those in-zone resources (i.e., generate it
locally); (2) contract with other providers within the
zone (i.e., buy it locally); or, if it cannot do either of
those, it can (3) participate in MISO’s single-year
“Planning Resource Auction.” MISO’s Planning Re-
source Auction is an auction to set wholesale capacity
prices MISO conducts for each planning year. The
auction serves as a marketplace through which any
registered provider can sell or purchase units of capac-
ity (essentially, guarantees of an ability to call on
resources to meet demand).
After the auction, MISO totals the amount of in-zone
capacity the zone’s providers report through self-
supply (option 1), in-zone contracting (option 2), and
the auction (option 3). If MISO concludes that the total
in-zone capacity cannot meet demand at the highest
112 505 MICH 97 [Apr

peak moments (i.e., cannot satisfy the local clearing

requirement), MISO punishes those providers in the
zone who relied on the auction for enough Zonal
Resource Credits to meet their planning reserve mar-
gin requirement. MISO does so by raising the auction’s
clearing price to a “penalty rate.”10 The penalty rate
thus increases prices on every provider that cannot
meet its planning reserve margin requirement with
local resources—that is, those that resorted to the
auction. In other words, if MISO believes that too
much electricity will be coming into a given zone from
other zones thereby jeopardizing reliability, MISO
makes it expensive for providers who are not producing
or buying electricity within that zone to rely on the
capacity auction. Midcontinent Indep Sys Operator,
Inc, 162 FERC ¶ 61,176, at p 24 (2018).
Thus, for purposes of the wholesale power market
overseen by MISO, every provider has individual ca-
pacity obligations that include requirements for total
quantity (how much power) and location (where it
comes from). And with respect to the latter, MISO’s
planning reserve margin requirement requires each
energy provider to produce or purchase in-zone capac-
ity, or risk paying a steep price. MISO’s penalty rate is
imposed on individual providers—individual providers

10
For any year in which the local clearing requirement is not met,
MISO sets the auction rate at the cost of new entry, which is based on
the estimated costs to build a new natural-gas-fueled combusting turbine
plant in the zone. Historically, the cost of new entry is significantly higher
than the auction’s clearing price. For example, in MISO’s Zone 7 (most
of Michigan’s Lower Peninsula), the 2017/2018 auction clearing price was
$1.50 per unit and the cost of new entry was $260.00 per unit. MISO,
2017/2018 Planning Resource Auction Results (April 14, 2017), p 8,
available at <https://cdn.misoenergy.org/2017-2018%20Planning%20
Resource%20Adequacy%20Results87196.pdf> (accessed February 24,
2020) [https://perma.cc/NG3A-65QW].
2020] In re PLANS OF ELECTRIC UTILITIES 113

must pay it, and each provider pays in proportion to

the amount it relied on the auction for its Zonal
Resource Credits.

B. MISO’S 2016 TARIFF AND PUBLIC ACT 341

The specific authority that Regional Transmission

Organizations like MISO derive from the FERC is
reflected in “tariffs.” The FERC must approve tariffs
with respect to all terms and conditions of electrical
service, rates charged (prices), schedules, contracts,
and service agreements. Thus, when MISO seeks any
change in its rate-making authority, it must apply for a
new tariff with the FERC. The FERC either approves
MISO’s tariff, thereby setting rates and other terms, or
not.
In November 2016, MISO sought the FERC’s ap-
proval of a newly proposed three-year capacity auction
to complement its single-year auction described above.
MISO’s goal in devising a three-year auction was
greater assurance of longer-term grid reliability (three
years instead of one) in states with competitive retail
markets. The idea was that the best way to plan for
longer-term reliability was to make plans for a longer
term. MISO would have allowed these states to permit
electricity suppliers to participate in a three-year auc-
tion instead of the one-year auction. Midcontinent
Indep Sys Operator, Inc, MISO Transmittal Letter to
the FERC, sent November 1, 2016 (FERC Docket No.
ER17-284), p 5, available at <https://perma.cc/7R8Q-
5P6J>. MISO’s proposal also included giving these
states an opportunity to implement a “prevailing state
compensation mechanism,” which would allow the
state, instead of MISO, to take responsibility over its
own long-term resource adequacy planning. Id. at 24.
114 505 MICH 97 [Apr

More than a month later, with bipartisan support in

both chambers and—to complicate matters—while
MISO’s tariff request for a three-year auction plan was
pending before the FERC, the Michigan Legislature
passed Public Act 341 to promote and ensure the
long-term reliability of Michigan’s electric grid. 2016
PA 341; 2016 Senate Journal 2137; 2016 House Jour-
nal 2502. The act imposes resource adequacy require-
ments on Michigan’s electricity providers in the retail
market that are enforced by the MPSC.11
Because the Legislature passed Act 341 while
MISO’s application for the multi-year auction was
pending before the FERC, the act recognized that the
MPSC’s specific charge would depend on whether the
FERC approved MISO’s pending tariff application. If
the FERC approved it, then the MPSC could decide
whether to allow Michigan electricity suppliers to have
the option to participate in the three-year MISO auc-
tion, leaving longer-term planning to MISO, or, in-
stead, whether the MPSC would implement a prevail-
ing state compensation mechanism that would obviate
the need for MISO’s planning. MCL 460.6w(1). If the
FERC did not approve MISO’s pending tariff, Act 341
provided that the MPSC would have to implement a
state reliability mechanism—its own plan to ensure
the reliability of the state’s electric grid, as directed by
MCL 460.6w(8). MCL 460.6w(2); MCL 460.6w(12)(h).
Act 341 thus reflected a legislative view that if the
FERC accepted MISO’s proposed tariff to move to a
three-year auction, the MPSC would be best equipped

11
MCL 460.6w uses the terms “resource adequacy” and “capacity” to
explain the obligations providers must meet under the law. Throughout
the statute and this opinion, the terms refer to the same idea—an
amount of local resources that gives the regulator confidence that the
system will be reliably strong to reduce the likelihood of blackouts
during the predicted conditions of highest electricity use.
2020] In re PLANS OF ELECTRIC UTILITIES 115

to decide whether MISO’s increasingly advanced ca-

pacity planning was best for Michigan.
The FERC rejected MISO’s tariff.12 Midcontinent
Indep Sys Operator, Inc, 158 FERC ¶ 61,128, at p 4
(2017). That triggered the MPSC’s obligation under
MCL 460.6w to develop and implement a state reliabil-
ity mechanism. MCL 460.6w(2). The statute required
the MPSC to develop a state reliability mechanism
that would ensure that each electric provider could
meet capacity obligations in the state retail market for
four years forward. MCL 460.6w(8) and (12)(h). The
statute further required the MPSC to set new “capacity
obligations,” employing the familiar MISO measure-
ment terms—a planning reserve margin requirement
(how much) and a local clearing requirement (sourced
locally). And finally the statute gave the MPSC en-
forcement tools to use when a provider failed to meet
the capacity obligations, necessary for any capacity
requirement to work in practice. MCL 460.6w(8).
To meet these new legislative mandates, the MPSC
held technical conferences to engage the various elec-
tric providers collaboratively about how each would
meet the requirements, as the methodology and math
in this area can be challenging. In re Reliability Plans,
order of the Public Service Commission, entered Sep-

12
The FERC’s order rejecting MISO’s tariff mentioned several reasons:
(1) the proposal did not show that it was “just and reasonable, and not
unduly discriminatory or preferential”; (2) the proposed multi-year auc-
tion would be used only in a small portion of MISO’s total load because it
only applied in competitive retail markets and would create a bifurcated
MISO capacity market by time and price; (3) the FERC was not per-
suaded that such a market would lead to efficient and desirable outcomes;
(4) such a market might create price volatility; and (5) MISO had not
explained or provided clear language to show that these bifurcated
markets would not lead to improper or inefficient allocations. Midconti-
nent Indep Sys Operator, Inc, 158 FERC ¶ 61,128, at pp 2-4 (2017).
116 505 MICH 97 [Apr

tember 15, 2017 (Case No. U-18197), pp 2-4. The

MPSC also accepted comments from stakeholders on
issues related to timing, methodology, and the local
clearing requirement in particular. Id.
Act 341 defined the local clearing requirement and
the planning reserve margin requirement for state-law
purposes as follows:
“Local clearing requirement” means the amount of
capacity resources required to be in the local resource zone
in which the electric provider’s demand is served to ensure
reliability in that zone as determined by the appropriate
independent system operator for the local resource zone in
which the electric provider’s demand is served and by the
commission under subsection (8). [MCL 460.6w(12)(d).][13]
“Planning reserve margin requirement” means the
amount of capacity equal to the forecasted coincident peak
demand that occurs when the appropriate independent
system operator footprint peak demand occurs plus a
reserve margin that meets an acceptable loss of load
expectation as set by the commission or the appropriate
independent system operator under subsection (8). [MCL
460.6w(12)(e).]

Following the MPSC’s technical conferences—which

included consultation with MISO, as specifically re-
quired by MCL 460.6w(8)(c) and (d)—and the com-
ments submitted by stakeholders, the MPSC pre-
sented its final order at its September 15, 2017
meeting. Id. at 30, 35.
The MPSC concluded that MCL 460.6w authorized
it to set a local clearing requirement for each indi-
vidual provider, requiring that each provider either

13
Each time MCL 460.6w uses the term “the appropriate independent
system operator,” it refers to the Regional Transmission Organization. It
is generally MISO, but, as noted, PJM Interconnection is the appropri-
ate independent system operator for the southwest portion of the state.
2020] In re PLANS OF ELECTRIC UTILITIES 117

own or have contractual rights to enough resources

within the state to meet a local clearing requirement as
set by the MPSC for four years forward. Id. at 47. The
MPSC put off implementation of a new local clearing
requirement for planning years 2018 through 2021 so
that it could gather more information about how to
assess it through a formal hearing process. Id.14 The
MPSC designed this phased-in approach to mitigate
any burden the local clearing requirement placed on
alternative electric suppliers in particular. Id. at 22-23.

C. APPEAL OF THE MPSC’S ORDER

The Association of Businesses Advocating Tariff Eq-

uity (ABATE) and Energy Michigan, Inc., each ap-
pealed the MPSC’s September 15, 2017 order. They
argued that the MPSC exceeded its authority by deter-
mining that it could impose a forward-looking local
clearing requirement on individual alternative electric
suppliers. The Court of Appeals consolidated the cases
and reversed the MPSC’s decision. In re Reliability
Plans, 325 Mich App at 210 & n 3. The panel concluded
that MCL 460.6w(8)(c) did not use “clear and unmis-
takable language” allowing the MPSC to impose a local
clearing requirement on alternative electric suppliers
individually. Id. at 225, citing Consumers Power Co v
Pub Serv Comm, 460 Mich 148, 155-156; 596 NW2d

14
The MPSC later opened a contested-case proceeding for determin-
ing the process and requirements for a forward locational requirement
for generation resources under MCL 460.6w. In re Contested Case
Proceeding, order of the Public Service Commission, entered October 11,
2017 (Case No. U-18444). The contested case concluded with the MPSC
continuing to recommend the incremental approach but allowing cer-
tain out-of-zone resources to count as exceptions toward meeting an
entity’s forward local clearing requirement. In re Contested Case Pro-
ceeding, order of the Public Service Commission, entered June 28, 2018
(Case No. U-18444), p 131.
118 505 MICH 97 [Apr

126 (1999).15 The panel further concluded that MCL

460.6w authorized the MPSC to impose a local clearing
requirement on a zonal basis only and that therefore
the MPSC did not have the authority “to impose a local
clearing requirement on individual providers.” In re
Reliability Plans, 325 Mich App at 226.
Consumers Energy Company and the MPSC sought
leave to appeal. We directed the Clerk to schedule oral
argument on the applications, addressing “whether
the Court of Appeals erred in holding that 2016 PA
341 does not authorize the Michigan Public Service
Commission to impose a local clearing requirement on
individual alternative electric suppliers.” In re Reli-
ability Plans of Electric Utilities for 2017–2021, 504
Mich 894, 894 (2019); In re Reliability Plans of
Electric Utilities for 2017–2021, 504 Mich 895, 895
(2019).

II. STANDARD OF REVIEW

We review whether the MPSC exceeded its scope of

authority, a question of law, de novo. Consumers Power
Co, 460 Mich at 157. We also review de novo questions
of statutory interpretation. Mich Ass’n of Home Build-
ers v Troy, 504 Mich 204, 212; 934 NW2d 713 (2019).
Reviewing an issue de novo means that we review the

15
Energy Michigan also argued in the Court of Appeals that the
MPSC’s order imposed new rules on electric providers in Michigan
without required compliance under the Administrative Procedures Act,
MCL 24.201 et seq. In re Reliability Plans, 325 Mich App at 210. The
panel did not consider this argument, finding it unnecessary to do so
once it determined that MCL 460.6w did not provide the MPSC with the
authority to impose a local clearing requirement on individual alterna-
tive electric suppliers. Id. at 234-235. Because the issue goes beyond the
scope of the briefing we requested and was not addressed by all parties
in the lower courts, we decline to address it, but it should be addressed
by the Court of Appeals on remand.
2020] In re PLANS OF ELECTRIC UTILITIES 119

legal issue independently, without deference to the

lower court. People v Bruner, 501 Mich 220, 226; 912
NW2d 514 (2018).

III. ANALYSIS

ACT 341 AUTHORIZES THE MPSC TO IMPOSE

A LOCAL CLEARING REQUIREMENT ON
ALL ENERGY PROVIDERS, INCLUDING ALTERNATIVE
ELECTRIC SUPPLIERS, INDIVIDUALLY

Final decisions, rulings, and orders of the MPSC

must be authorized by law. Const 1963, art 6, § 28. The
MPSC has no common-law powers; it has only the
authority granted to it by the Legislature. Consumers
Power Co, 460 Mich at 155-156. The MPSC has the
authority to interpret the statutes it administers and
enforces. Clonlara, Inc v State Bd of Ed, 442 Mich 230,
240; 501 NW2d 88 (1993). Courts give the agency’s
statutory interpretation respectful, nonbinding consid-
eration and do not overturn it absent cogent reasons.
In re Complaint of Rovas Against SBC Mich, 482 Mich
90, 103; 754 NW2d 259 (2008).
What authority a statute gives an agency is a matter
of statutory interpretation. The primary goal of statu-
tory interpretation is to give effect to the Legislature’s
intent. Bank of America, NA v First American Title Ins
Co, 499 Mich 74, 85; 878 NW2d 816 (2016). Statutory
interpretation begins with examining the plain lan-
guage of the statute. Id. When that language is clear
and unambiguous, no further judicial construction is
required or permitted. Here, the parties do not dispute
that Act 341 delegated authority to the MPSC to plan
for energy capacity in the retail market by setting and
enforcing capacity obligations for all energy providers
in the state. They disagree only about one particular
aspect of that authority: whether the MPSC can im-
pose one of those obligations, a local clearing require-
ment, on alternative electric suppliers individually.
120 505 MICH 97 [Apr

The Court of Appeals correctly concluded that Sub-

section (8)(b) of the act requires each electric provider to
show that it could meet the capacity obligations set by
the MPSC, In re Reliability Plans, 325 Mich App at 224,
and that those capacity obligations include both a plan-
ning reserve margin requirement and a local clearing
requirement, id. at 226. The statute also clearly gives
the MPSC enforcement tools to use if a provider fails to
show that it can meet these MPSC-set capacity obliga-
tions. For electric utilities, the MPSC has full jurisdic-
tion and control, so it may use one of its preexisting
regulatory tools. MCL 460.6w(8)(b)(iii). For cooperative
or municipally owned utilities, the MPSC does not have
the same degree of control, but the Attorney General
has the power to sue when a provider does not meet its
capacity obligations. MCL 460.6w(8)(b)(ii). And when an
alternative electric supplier cannot make a successful
demonstration, the MPSC’s tool under the act is to
require that the provider pay a “capacity charge” taken
up after a contested case under MCL 460.6w(3).16 MCL
460.6w(8)(b)(i).
Yet the Court of Appeals held that the MPSC could
not impose a local clearing requirement on alternative
electric suppliers individually. Id. at 224-225. The
panel asserted that “reading MCL 460.6w as a whole
indicates that the MPSC must impose a local clearing
requirement on alternative electric suppliers in a man-
ner consistent with MISO—that is, on a zonal basis
and not individually.” Id. at 226.17 While the panel held

16
The capacity charge is a penalty rate for alternative electric
suppliers that do not provide enough local electricity resources. Al-
though the rate amounts may be different, the concept parallels the
cost-of-new-entry penalty rate MISO uses for providers who cannot
meet in-zone capacity.
17
The Court of Appeals reached this conclusion without providing any
guidance about what it meant by a “zonal basis.” Given its reliance on its
understanding of MISO’s process, a zonal basis could refer to MISO’s
2020] In re PLANS OF ELECTRIC UTILITIES 121

only that the zonal requirement meant the MPSC

could not impose any location requirement on alterna-
tive electric suppliers individually, if the MPSC is
limited to determining a local clearing requirement
only for a zone, no individual provider would have to
produce or purchase any set amount of locally pro-
duced electricity.18
This holding reflects a number of missteps. First, it
read into the statutory text a requirement that the
MPSC impose Michigan’s local clearing requirement
using the same methodology MISO does. That mis-
reading moreover misunderstood how MISO’s local
clearing requirement really functions. MISO’s zonal
local clearing requirement is only a tool for setting
individual provider in-zone capacity requirements in
another capacity measurement—Zonal Resource Cred-
its. In addition, MCL 460.6w does not refer to zones at
all, MISO’s or any other zones. Nor is it at all clear why
zones would be relevant to the MPSC, Michigan’s
regulator for regulating providers within this state.

A. THE COURT OF APPEALS MISREAD THE TEXT OF MCL 460.6w

The Court of Appeals justified its conclusion that

the MPSC could only set a local clearing requirement
“on a zonal basis” based on its “review of the entire
statute.” In re Reliability Plans, 325 Mich App at 225.
But that conclusion was not rooted in the statute’s text.

zones. Or it could define the state as the relevant zone for this statute.
For reasons explored later, neither interpretation makes sense.
18
Although most utilities use many local resources, the age of genera-
tion facilities and availability of in-state resources may change in time. It
is possible that even these producers will have to rely on importing
resources to meet their customers’ demand. See Brief for DTE Energy as
Amicus Curiae (November 19, 2018) (Docket No. 158305) at 8 n 6. The
purpose of MCL 460.6w is to ensure long-term reliability of the grid, and
the MPSC needs to have a mechanism to ensure that all producers help
guarantee that the system is not in constant danger of blackouts.
122 505 MICH 97 [Apr

As explained, MCL 460.6w authorizes the MPSC to

set two capacity obligations—the local clearing require-
ment and planning reserve margin requirement. MCL
460.6w(8)(c); see also In re Reliability Plans, 325 Mich
App at 224. The statute authorizes the MPSC to deter-
mine both obligations with the same text. The MPSC
must “[r]equire . . . that each alternative electric sup-
plier, cooperative electric utility, or municipally owned
electric utility demonstrate to the commission . . . that
[it] . . . owns or has contractual rights to sufficient ca-
pacity to meet its capacity obligations . . . .” MCL
460.6w(8)(b) (emphasis added). No statutory language
imposes additional requirements or limitations on the
MPSC for setting the local clearing requirement versus
the planning reserve margin requirement; they are only
addressed in the plural.
Perhaps given this text, the appellees do not chal-
lenge the MPSC’s authority to impose a planning
reserve margin requirement on providers individually;
that is what the statute says. But despite the identical
language describing the MPSC’s authority for deter-
mining both elements of capacity obligation, the Court
of Appeals decided there was a difference based on its
“review of the entire statute.” In re Reliability Plans,
325 Mich App at 225. That contextual reading, accord-
ing to the panel, “suggests that the MPSC is obligated
to apply the local clearing requirement in a manner
consistent with MISO.” Id. We see no contextual rea-
son to ignore the statute’s clear language. The parallel
treatment of the MPSC’s authority as to both capacity
obligations is meaningful—the MPSC can set a plan-
ning reserve margin requirement for each provider
individually, and it can do the same for a local clearing
requirement.
2020] In re PLANS OF ELECTRIC UTILITIES 123

No less, we read the contextual language differently

too. The statute requires cooperation with MISO, not
adopting MISO’s methodology for one capacity obliga-
tion only.19 On its face, the statute requires the MPSC
to seek the appropriate independent system operator’s
assistance when it sets a local clearing requirement
and planning reserve margin requirement:
In order to determine the capacity obligations, request
that the appropriate independent system operator provide
technical assistance in determining the local clearing re-
quirement and planning reserve margin requirement. If
the appropriate independent system operator declines, or
has not made a determination by October 1 of that year, the
commission shall set any required local clearing require-
ment and planning reserve margin requirement, consistent
with federal reliability requirements. [MCL 460.6w(8)(c).]

The statute’s emphasis on cooperation makes sense:

state retail capacity planning should be coordinated
with federal interstate wholesale capacity planning.
The Court of Appeals read the requirement that the
capacity obligations were to be “consistent with federal
reliability requirements” somehow to mean that the
MPSC must “observe MISO’s general practice of im-
posing local clearing requirements on a zonal, not an
individual, basis.” In re Reliability Plans, 325 Mich
App at 226. But the text of Subsection 8(c) does not
support that reading whatsoever.

19
Wherever the statute required the MPSC to seek assistance from or
coordinate with “the appropriate independent system operator,” the Court
of Appeals substituted in MISO. In re Reliability Plans, 325 Mich App at
216 n 7 (quotation marks omitted). This ignores both that another
independent system operator, PJM Interconnection, plays a regulatory
role in Michigan and that the voluntary nature of participation in an
independent system operator means that MISO may not always be
predominant in the state. When this opinion refers to MISO instead of
“the appropriate independent system operator” it is to demonstrate that,
even operating under the Court of Appeals’ assumption, it reached the
wrong result.
124 505 MICH 97 [Apr

The statute gives the MPSC clear instructions: it

must seek the technical assistance of the independent
system operator (MISO) in determining the capacity
obligations by October 1. If the independent system
operator (MISO) declines to provide that assistance, or
does not provide it by October 1, then the MPSC “shall
set any required local clearing requirement and plan-
ning reserve margin requirement, consistent with fed-
eral reliability requirements.” MCL 460.6w(8)(c) (em-
phasis added).
In fact, the MPSC sought and received technical
assistance from MISO in determining a planning re-
serve margin requirement and a local clearing require-
ment before October 1, satisfying Subsection (8)(c). See
In re Reliability Plans, order of the Public Service
Commission, entered September 15, 2017 (Case No.
U-18197), pp 30, 35, 48-49. The language of Subsection
(8)(c) providing for what the MPSC must do in the
event it lacked MISO’s assistance by October 1 was
therefore not relevant here.
But even if MISO had not provided that assistance
(or had not done so by October 1) and the MPSC was
therefore to set the capacity measurements “consistent
with federal reliability requirements,” still the Court of
Appeals’ interpretation of “consistent with” was
flawed. “Consistent” does not mean “exactly the same
as.” Rather, it means “agreeing or accordant; compat-
ible; not self-contradictory[.]” See Random House Web-
ster’s College Dictionary (2d ed, 2003); see also
Merriam-Webster’s Collegiate Dictionary (11th ed)
(“[M]arked by agreement : COMPATIBLE — usu. used
with with[.]”). As MISO itself explained, the MPSC’s
local clearing requirement was consistent with its
resource adequacy planning and the FERC’s precedent
to defer to states that choose different but complemen-
tary adequacy requirements.
2020] In re PLANS OF ELECTRIC UTILITIES 125

Additionally, the MPSC’s authority to assess a

penalty—a “capacity charge”—on alternative electric
suppliers that do not meet their capacity obligations
also requires coordination with the federal resource
capacity process. MCL 460.6w(8)(b)(i). The Court of
Appeals believed that the statutory language in this
section also “militate[s] against the MPSC’s imposition
of any local clearing requirements beyond what MISO
has established and instead impose[s] on the MPSC a
continuing obligation to observe MISO’s general prac-
tice of imposing local clearing requirements on a zonal,
not an individual, basis.” In re Reliability Plans, 325
Mich App at 226. This too misreads the text:
A capacity charge shall not be assessed for any portion of
capacity obligations for each planning year for which an
alternative electric supplier can demonstrate that it can
meet its capacity obligations through owned or contractual
rights to any resource that the appropriate independent
system operator allows to meet the capacity obligation of
the electric provider. The preceding sentence shall not be
applied in any way that conflicts with a federal resource
adequacy tariff, when applicable. [MCL 460.6w(6)].

The statute requires that if there is a federal resource

adequacy process, the MPSC’s assessment of a capacity
charge cannot “conflict[] with” it. MISO has consistently
described the MPSC’s proposed plan as complementary
to its single-year capacity auction—the federal resource
adequacy process. See, e.g., Brief for MISO as Amicus
Curiae (November 5, 2018) (Docket No. 158305) at 2.
The requirement that a capacity charge must also
coordinate with, and not conflict with, MISO’s planning
process does not require the MPSC to duplicate MISO’s
zonal local clearing requirement.
“Conflict” is defined as “to be contradictory, at vari-
ance, or in opposition; clash; disagree” or “incompat-
ibility or interference, as of one idea, event, or activity
126 505 MICH 97 [Apr

with another[.]” Random House Webster’s College Dic-

tionary (2d ed, 2003); see also Merriam-Webster’s Col-
legiate Dictionary (11th ed) (defining “conflict,” in part,
as “to show antagonism or irreconcilability: fail to be in
agreement or accord <his statement conflicts with the
facts>”). As MISO has explained, an individually im-
posed local clearing requirement in the state retail
market does not conflict with its wholesale capacity
planning process; it meets separate but complemen-
tary goals. In re Contested Case Proceeding, order of
the Public Service Commission, entered June 28, 2018
(Case No. U-18444), p 111 (quoting MISO’s August 30,
2017 reply comments to the MPSC’s investigation into
the electric supply reliability plans of Michigan’s elec-
tric utilities for the years 2017 through 2021, Case No.
U-18197, “Rather, MISO’s resource adequacy processes
are complementary to the reliability mechanisms of
the states”).

B. THE COURT OF APPEALS

MISUNDERSTOOD MISO’S CAPACITY PLANNING

The Court of Appeals made another mistake in deter-

mining that the MPSC was only permitted to impose a
zonal local clearing requirement like MISO does. The
panel’s interpretation misunderstood the differences
between the wholesale and retail capacity markets, and
especially MISO’s capacity planning process and the
local clearing requirement’s function in that process.
As explained, MISO’s authority is limited to that
approved by the FERC, which regulates the interstate
power and capacity wholesale and transmission electric-
ity markets. Electric Power Supply, 577 US at 277.20

20
The United States Supreme Court decided Electric Power Supply in
2016, in the midst of the 17-month period after which the statute at
issue was introduced and when it became Act 341. The United States
2020] In re PLANS OF ELECTRIC UTILITIES 127

Any rate, rule, or practice the FERC approves for

MISO’s implementation must affect interstate whole-
sale rates but may not affect retail electricity sales. Id.
at 279. The states have regulatory authority over
electricity sales that stay within state boundaries,
especially retail sales. Id. at 279-280. While MISO
oversees the wholesale markets and the MPSC over-
sees the retail markets, the two regulatory bodies work
cooperatively to ensure grid reliability and work to-
gether on capacity planning in particular, relevant to
both.
MCL 460.6w codified this cooperation. MCL 460.6w
uses capacity measurement vocabulary also used by
MISO in its capacity planning and has the same
goal—ensuring grid reliability by requiring that each
provider supply enough electric capacity and enough
local capacity.
The Legislature enacted MCL 460.6w to require
each electricity provider to demonstrate enough capac-
ity, including in-state capacity, to meet peak demand.
But the statute’s planning reserve margin requirement
includes no measure of in-zone resources as MISO’s
does with Zonal Resource Credits; it measures capacity
(quantity) only. Instead, the statute accounts for in-
zone capacity in the providers’ individual local clearing
requirement. MCL 460.6w(8).
Supreme Court also decided Hughes v Talen Energy Mktg, LLC, 578 US
150; 136 S Ct 1288; 194 L Ed 2d 414 (2016), which held that a state’s
program to subsidize new power generation was preempted by federal
law. The Court of Appeals cited legislative history to support its reading
of the statute, finding meaning in the iterations of the text before the
version that passed into law. In re Reliability Plans, 325 Mich App at
228-232. The Michigan Chamber of Commerce’s brief as amicus curiae
explaining that the changes in bill drafts instead reflected the Legisla-
ture’s shifting view of its authority given these United States Supreme
Court opinions persuasively rebuts the panel’s assumption about the
legislative history. See Brief for the Michigan Chamber of Commerce as
Amicus Curiae (October 26, 2018) (Docket No. 158305) at 5.
128 505 MICH 97 [Apr

The Court of Appeals’ view that the MPSC must

impose its local clearing requirement zonally because
MISO uses a zonal measurement provides no hints
about the economic tools the MPSC could employ to
ensure that each Michigan electricity provider contrib-
uted to some zonal local clearing requirement or how
the MPSC could restructure market costs—as MISO
does—to penalize the providers responsible for years in
which they do not meet it. In particular, the Court of
Appeals did not make clear what the relevant “zone”
would be in its interpretation of the local clearing
requirement. If it meant that the MPSC could only
impose a local clearing requirement that maps exactly
onto MISO’s zonal measurement, that interpretation
makes little sense given MISO’s zone geography and
the MPSC’s authority. MISO oversees 10 regional
zones that span 15 states, and its boundaries are not
drawn according to state lines. (See Figure 1 of this
opinion again). MISO’s Zone 1, for instance, includes
all of North Dakota and parts of Montana, South
Dakota, Minnesota, Wisconsin, Iowa, and Illinois. All
providers in Zone 2—which includes Michigan’s Upper
Peninsula and most of Wisconsin—and all in Zone
7—which includes most of Michigan’s Lower Peninsula
only—meet MISO’s capacity measurements for the
zone in which they participate. The MPSC, in contrast,
is charged with ensuring the reliability of Michigan’s
grid for retail consumers throughout the state.
The MPSC lacks any authority over Wisconsin pro-
viders, which it would need to impose a local clearing
requirement over MISO Zone 2. And while the MPSC
has authority over the southwest corner of the state
that participates in a zone regulated by PJM Intercon-
nection, a different Regional Transmission Organiza-
tion, the MPSC similarly has no authority over those
parts of Delaware, the District of Columbia, Illinois,
2020] In re PLANS OF ELECTRIC UTILITIES 129

Indiana, Kentucky, Maryland, New Jersey, North

Carolina, Ohio, Pennsylvania, Tennessee, Virginia,
and West Virginia overseen by that system operator.
A contextual understanding of the MCL 460.6w
capacity planning process and MISO’s process there-
fore supports a plain reading of the statute.

IV. CONCLUSION

In requiring that each provider, including alterna-

tive electric suppliers, meet an individual local clear-
ing requirement, the MPSC did what the statute
required of it to ensure reliability of retail electric
markets in Michigan. We reverse the judgment of the
Court of Appeals and remand to the Court of Appeals
for further proceedings consistent with this opinion,
including addressing whether the MPSC’s order com-
plied with the Administrative Procedures Act.

MARKMAN, ZAHRA, VIVIANO, BERNSTEIN, CLEMENT, and

CAVANAGH, JJ., concurred with MCCORMACK, C.J.
130 505 MICH 130 [Apr

DeRUITER v TOWNSHIP OF BYRON

Docket No. 158311. Argued on application for leave to appeal October 3,

2019. Decided April 27, 2020.
Christie DeRuiter, a registered qualifying medical marijuana pa-
tient and a registered primary caregiver to qualifying patients,
brought an action in the Kent Circuit Court against Byron
Township, alleging that the township’s zoning ordinance—which
required that a primary caregiver obtain a permit before culti-
vating medical marijuana and that the caregiver cultivate the
marijuana within a dwelling or garage in a residentially zoned
area within the township as part of a regulated home occupation
at a full-time residence—directly conflicted with and was there-
fore preempted by the Michigan Medical Marihuana Act (the
MMMA), MCL 333.26421 et seq. DeRuiter cultivated marijuana
in an enclosed, locked facility at a commercially zoned property
she rented in the township; she did not obtain a permit from the
township before cultivating the medical marijuana as a primary
caregiver. At the township’s direction, DeRuiter’s landlord or-
dered her to stop cultivating medical marijuana at the property or
face legal action. When the township attempted to enforce its
zoning ordinance, DeRuiter filed the instant action, seeking a
declaratory judgment regarding the ordinance’s legality; the
township countersued, seeking a declaration that the ordinance
did not conflict with the MMMA. Both parties moved for sum-
mary disposition, and the court, Paul J. Sullivan, J., granted
summary disposition in favor of DeRuiter, holding that the
ordinance directly conflicted with the MMMA and that it was
therefore preempted by the act. The Court of Appeals, HOEKSTRA,
P.J., and MURPHY and MARKEY, JJ., affirmed the trial court order,
concluding that the MMMA preempted defendant’s home-
occupation zoning ordinance because the ordinance directly con-
flicted with the MMMA by prohibiting what the MMMA permit-
ted and because the ordinance improperly imposed regulations
and penalties upon persons who engage in the MMMA-compliant
medical use of marijuana. 325 Mich App 275 (2018). Byron
Township applied for leave to appeal in the Supreme Court, which
ordered and heard oral argument on whether to grant the
application or take other action. 503 Mich 942 (2019).
2020] DERUITER V BYRON TWP 131

In a unanimous opinion by Justice BERNSTEIN, the Supreme

Court, in lieu of granting leave to appeal, held:
Under the conflict-preemption doctrine, the MMMA does not
nullify a municipality’s inherent authority to regulate land use
under the Michigan Zoning Enabling Act (MZEA), MCL 125.3101
et seq., as long as (1) the municipality does not prohibit or
penalize the cultivation of medical marijuana and (2) the munici-
pality does not impose regulations that are unreasonable and
inconsistent with regulations established by state law. MCL
333.26424(b)(2) states that primary caregivers and qualifying
patients must keep their plants in an enclosed, locked facility in
order for those individuals to be entitled to the MMMA protec-
tions in MCL 333.26424(a) and (b). Because an enclosed, locked
facility may be found in various locations on various types of
property, the township’s ordinance limiting where medical mari-
juana must be cultivated within the locality did not directly
conflict with the MMMA’s requirement that marijuana plants be
kept in an enclosed, locked facility. The township’s ordinance
requiring primary caregivers to obtain a permit and pay a fee
before using a building or structure within the township to
cultivate medical marijuana also did not directly conflict with the
MMMA because the ordinance did not effectively prohibit the
medical use of marijuana.
1. Generally, local governments may control and regulate
matters of local concern when that power is conferred by the
state. However, state law may preempt a local regulation either
expressly or by implication. Implied preemption can occur when
the state has occupied the entire field of regulation in a certain
area (field preemption) or when a local regulation directly con-
flicts with state law (conflict preemption). A direct conflict exists
when the ordinance permits what the statute prohibits or the
ordinance prohibits what the statute permits; there is no conflict
between state and local law when a locality enacts regulations
that are not unreasonable and inconsistent with regulations
established by state law so long as the state regulatory scheme
does not occupy the field. That is, while a local ordinance is
preempted when it bans an activity that is authorized and
regulated by state law, a local governmental unit may add to the
conditions in a statute as long as the additional requirements do
not contradict the requirements set forth in the statute. A court
must review both the statute and the local ordinance to deter-
mine whether conflict preemption applies.
2. MCL 333.26424(a) and (b) provide that qualifying patients
and primary caregivers are immune from arrest, prosecution, or
132 505 MICH 130 [Apr

penalty in any manner, including, but not limited to, civil penalty
or disciplinary action for the medical use of marijuana in accor-
dance with the MMMA. In turn, MCL 333.26424(b)(2) provides
that primary caregivers and qualifying patients must keep their
plants in an enclosed, locked facility in order to qualify for the
immunity. This requirement sets forth the type of structure
marijuana plants must be kept and grown in for a patient or a
caregiver to be entitled to the MMMA protections in MCL
333.26424(a) and (b), but the provision does not address where
marijuana may be grown. Under Ter Beek v City of Wyoming, 495
Mich 1 (2014), a local ordinance conflicts with the MMMA when
the ordinance results in a complete prohibition of the medical use
of marijuana; however, the MMMA does not foreclose all local
regulation of marijuana. In that regard, the act does not nullify a
municipality’s inherent authority to regulate land use under the
MZEA as long as (1) the municipality does not prohibit or penalize
the cultivation of medical marijuana and (2) the municipality
does not impose regulations that are unreasonable and inconsis-
tent with regulations established by state law. Because an en-
closed, locked facility may be found in various locations on
various types of property, a local regulation limiting where
medical marijuana must be cultivated within a locality does not
conflict with the statutory requirement that marijuana plants be
kept in an enclosed, locked facility. In this case, the township’s
ordinance allowed for the medical use of marijuana by a regis-
tered primary caregiver but placed limitations on where the
caregiver could cultivate marijuana within the township. The
ordinance’s geographical restriction added to and complemented
the limitations imposed by the MMMA; it did not directly conflict
with the MMMA. While the ordinance went further in its regu-
lation than the MMMA, the township appropriately used its
authority under the MZEA to craft an ordinance that did not
directly conflict with the MMMA’s provision requiring that mari-
juana be cultivated in an enclosed, locked facility. The township
also had authority under the MZEA to require zoning permits and
permit fees for the use of buildings and structures within its
jurisdiction. The township’s ordinance requiring primary caregiv-
ers to obtain a permit and pay a fee before using a building or
structure within the township to cultivate medical marijuana did
not directly conflict with the MMMA because the ordinance did
not effectively prohibit the medical use of marijuana, and
DeRuiter did not argue that the requirements for obtaining a
permit were so unreasonable as to create a conflict. To the extent
that DeRuiter argued that the immunity provisions of the
MMMA contributed to a blanket prohibition on local governments
2020] DERUITER V BYRON TWP 133

regulating the medical use of marijuana with respect to time,

place, and manner of such use, that argument sounded in field
preemption; but neither the trial court nor the Court of Appeals
reached the issue of field preemption, and DeRuiter conceded that
her appeal did not concern the issue of field preemption. The
Court of Appeals erred by affirming the trial court’s grant of
summary disposition in favor of DeRuiter.
Reversed and remanded to the trial court for further proceed-
ings.

MUNICIPAL ORDINANCES — STATUTES — PREEMPTION — MICHIGAN MEDICAL

MARIHUANA ACT.
State law may preempt a local regulation either expressly or by
implication; implied preemption can occur when the state has
occupied the entire field of regulation in a certain area (field
preemption) or when a local regulation directly conflicts with
state law (conflict preemption); under the conflict-preemption
doctrine, the Michigan Medical Marihuana Act does not nullify a
municipality’s inherent authority to regulate land use under the
Michigan Zoning Enabling Act as long as (1) the municipality
does not prohibit or penalize the cultivation of medical marijuana
and (2) the municipality does not impose regulations that are
unreasonable and inconsistent with regulations established by
state law (MCL 333.26421 et seq.; MCL 125.3101 et seq.).

Dodge & Dodge, PC (by David A. Dodge) for Christie

DeRuiter.

McGraw Morris, PC (by Craig R. Noland and

Amanda M. Zdarsky) and Mika Meyers PLC (by Ross A.
Leisman and Ronald M. Redick) for Byron Township.

Amici Curiae:

Bauckham, Sparks, Thall, Seeber & Kaufman, PC

(by Robert E. Thall and Catherine P. Kaufman) for the
Michigan Townships Association.

Rosati Schultz Joppich & Amtsbuechler PC (by

Thomas R. Schultz) for the Michigan Municipal
League and the Government Law Section of the State
Bar of Michigan.
134 505 MICH 130 [Apr

Pollicella & Associates, PLLC (by Denise Pollicella,

Jacqueline Langwith, and Kyle A. Debruycker) for
Cannabis Attorneys of Michigan.

BERNSTEIN, J. In this case, we address whether

defendant-counterplaintiff Byron Township’s zoning or-
dinance, which regulates the location of registered
medical marijuana caregiver activities and requires
that a “primary caregiver”1 obtain a permit before
cultivating medical marijuana, is preempted by the
Michigan Medical Marihuana Act (the MMMA), MCL
333.26421 et seq.2 Specifically, Byron Township’s ordi-
nance requires that medical marijuana caregivers
cultivate marijuana as a “home occupation” at a
full-time residence. Byron Township Zoning Ordi-
nance, § 3.2.H.1. Plaintiff-counterdefendant, Christie
DeRuiter, a registered qualifying patient3 and primary
caregiver under the MMMA,4 cultivated medical mari-
juana on rented commercially zoned property. DeRuit-
er’s landlord was directed by the Byron Township

1
For purposes of the Michigan Medical Marihuana Act, MCL
333.26421 et seq., a “primary caregiver” means “a person who is at least
21 years old and who has agreed to assist with a patient’s medical use
of marihuana . . . .” MCL 333.26423(k). Primary caregivers with a
registry identification card possess immunity from criminal prosecution
under Michigan law for cultivating marijuana for their qualifying
patients. MCL 333.26424(b).
2
This opinion addresses zoning in the context of medical marijuana
use and the MMMA. It does not address any zoning issues that may
arise from the voter-initiated legalization of recreational marijuana. See
2018 IL 1, effective December 6, 2018.
3
“Qualifying patient” means “a person who has been diagnosed by a
physician as having a debilitating medical condition.” MCL
333.26423(l).
4
Although DeRuiter is both a registered qualifying patient and a
primary caregiver, her challenge to Byron Township’s zoning ordinance
concerns only her rights as a primary caregiver.
2020] DERUITER V BYRON TWP 135

supervisor to cease and desist the cultivation of medi-

cal marijuana or face legal action. After Byron Town-
ship attempted to enforce its zoning ordinance,
DeRuiter sought a declaratory judgment regarding the
ordinance’s legality. Byron Township countersued and
also sought a declaratory judgment regarding the
ordinance’s legality, arguing that the ordinance did not
conflict with the MMMA. The trial court held that § 3.2
of Byron Township’s zoning ordinance directly con-
flicted with, and was therefore preempted by, the
MMMA. The trial court granted DeRuiter’s motion for
summary disposition and denied Byron Township’s
motion for summary disposition. The Court of Appeals
affirmed the trial court in a published opinion.
DeRuiter v Byron Twp, 325 Mich App 275, 287; 926
NW2d 268 (2018).
Because we conclude that the Byron Township Zon-
ing Ordinance does not directly conflict with the
MMMA, we reverse the Court of Appeals’ judgment
and remand this case to the trial court for proceedings
consistent with this opinion.

I. FACTS

Christie DeRuiter, a licensed qualifying patient and

registered primary caregiver under the MMMA, began
growing marijuana on rented commercially zoned
property because she did not want to grow marijuana
at her residence. DeRuiter grew the marijuana in an
“enclosed, locked facility.” See MCL 333.26423(d).
After learning of DeRuiter’s cultivation of medical
marijuana on commercially zoned property, the Byron
Township supervisor determined that DeRuiter’s grow-
ing operation constituted a zoning violation under the
Byron Township Zoning Ordinance. The zoning ordi-
136 505 MICH 130 [Apr

nance contains a locational restriction5 that allows for

the cultivation of medical marijuana by primary care-
givers, but only as “a home occupation.” Byron Town-
ship Zoning Ordinance, § 3.2.H.1.6 “Home occupation”
is defined by Byron Township as follows:
An occupation or profession that is customarily inci-
dental and secondary to the use of a dwelling. It is
customarily conducted within a dwelling, carried out by
its occupants utilizing equipment customarily found in a
home and, except for a sign allowed by this Ordinance, is
generally not distinguishable from the outside. [Byron
Township Zoning Ordinance, § 2.5.]

Under this home-occupation requirement, the ordi-

nance mandates that the “medical use” of marijuana by
a primary caregiver be “conducted entirely within a
dwelling[7] or attached garage, except that a registered
primary caregiver may keep and cultivate [medical
marijuana], in an enclosed, locked facility . . . .” Byron
Township Zoning Ordinance, § 3.2.H.2.d (quotation
marks omitted). The ordinance also requires that “[t]he
medical use of marijuana shall comply at all times
with the MMMA and the MMMA General Rules,
as amended.” Byron Township Zoning Ordinance,
§ 3.2.H.2.a.

5
We use “locational restriction” in this opinion to denote a zoning
restriction that regulates where an activity may occur within a munici-
pality.
6
The township amended § 3.2 of the Byron Township Zoning Ordi-
nance on July 11, 2016. The postamendment version of the zoning
ordinance is at issue in this case.
7
The term “dwelling unit” is defined as “[a] building or portion of a
building, designed for use and occupancy by one family for living and
sleeping purposes and with housekeeping facilities. A recreational ve-
hicle, vehicle chassis, tent or other transient residential use is not
considered a dwelling.” Byron Township Zoning Ordinance, § 2.3. Byron
Township’s zoning ordinance does not permit dwellings by right in
commercially zoned districts. See Byron Township Zoning Ordinance,
§§ 6.1 and 6.2.
2020] DERUITER V BYRON TWP 137

Furthermore, Byron Township requires that pri-

mary caregivers obtain a permit to grow medical
marijuana. Byron Township Zoning Ordinance,
§ 3.2.H.3. If a primary caregiver who holds a permit
departs from the requirements of either the ordinance
or the MMMA, their permit can be revoked. Byron
Township Zoning Ordinance, § 3.2.H.3.c. Byron Town-
ship’s zoning ordinance clarifies that a permit is not
required for a qualifying patient’s cultivation of mari-
juana for personal use and that a permit is not re-
quired for a qualifying patient’s possession or use of
marijuana in their dwelling. Byron Township Zoning
Ordinance, § 3.2.H.5 and § 3.2.H.6. DeRuiter did not
obtain a permit from Byron Township before cultivat-
ing medical marijuana as a primary caregiver.
In March 2016, Byron Township sent DeRuiter’s
landlord a letter, directing the landlord to cease and
desist DeRuiter’s cultivation of medical marijuana and
to remove all marijuana and related equipment or be
subject to enforcement action. The letter asserted that
violations of the zoning ordinance were a nuisance per
se.
In May 2016, DeRuiter filed a complaint, seeking a
declaratory judgment that Byron Township’s zoning
ordinance was preempted by the MMMA and that it
was, therefore, unenforceable. She took issue with the
ordinance’s permit requirement and locational restric-
tion. She also sought injunctive relief to prevent Byron
Township from enforcing the ordinance. Byron Town-
ship filed a counterclaim, seeking a declaratory judg-
ment and abatement of the alleged nuisance.
The trial court granted DeRuiter’s motion for sum-
mary disposition, denied Byron Township’s motion for
summary disposition, and dismissed Byron Township’s
counterclaim. The trial court held that the zoning
138 505 MICH 130 [Apr

provisions in question directly conflicted with the

MMMA and that, as a result, those provisions were
preempted and unenforceable. Specifically, the trial
court held that Byron Township’s zoning ordinance
impermissibly subjected primary caregivers to penal-
ties for the medical use of marijuana and for assisting
qualifying patients with the medical use of marijuana
regardless of a caregiver’s compliance with the
MMMA. According to the trial court, these penalties
clearly conflicted with the MMMA, which prohibits
penalizing qualifying patients and primary caregivers
who are in compliance with the MMMA. See MCL
333.26424(a) and (b). The trial court also determined
that Byron Township could not prohibit what the
MMMA explicitly authorized—the medical use of mari-
juana under MCL 333.26427(a). According to the trial
court, Byron Township ran afoul of these principles by
requiring that a primary caregiver obtain a permit to
cultivate marijuana, placing locational restrictions on
that cultivation, and subjecting caregivers to fines and
penalties for noncompliance.
Byron Township appealed. The Court of Appeals
affirmed the trial court in a published opinion, holding
that “the trial court did not err by ruling that a direct
conflict exist[s] between defendant’s ordinance and the
MMMA resulting in the MMMA’s preemption of plain-
tiff’s home-occupation ordinance.” DeRuiter, 325 Mich
App at 287. Byron Township filed an application for
leave to appeal in this Court. We ordered oral argu-
ment on the application, directing the parties to ad-
dress “whether the defendant’s zoning ordinance per-
taining to the location of registered medical marijuana
caregivers is preempted by the [MMMA].” DeRuiter v
Byron Twp, 503 Mich 942 (2019).
2020] DERUITER V BYRON TWP 139

II. STANDARDS OF REVIEW

“Whether a state statute preempts a local ordinance

is a question of statutory interpretation and, therefore,
a question of law that we review de novo.” Ter Beek v
City of Wyoming, 297 Mich App 446, 452; 823 NW2d
864 (2012) (Ter Beek I), aff’d 495 Mich 1 (2014). “We
also review de novo the decision to grant or deny
summary disposition and review for clear error factual
findings in support of that decision.” Ter Beek v City of
Wyoming, 495 Mich 1, 8; 846 NW2d 531 (2014) (Ter
Beek II) (citations omitted).
The MMMA was enacted by voter referendum in
2008. “Statutes enacted by the Legislature are inter-
preted in accordance with legislative intent; similarly,
statutes enacted by initiative petition are interpreted
in accordance with the intent of the electors.”8 People
v Mazur, 497 Mich 302, 308; 872 NW 2d 201 (2015).
“We begin with an examination of the statute’s plain
language, which provides ‘the most reliable evidence’
of the electors’ intent.” Id., citing Sun Valley Foods Co
v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999).
“If the statutory language is unambiguous, . . . [n]o
further judicial construction is required or permitted
because we must conclude that the electors intended
the meaning clearly expressed.” People v Bylsma,
493 Mich 17, 26; 825 NW2d 543 (2012) (quotation
marks and citations omitted; alteration in original).

8
The Legislature subsequently amended the MMMA. See 2012 PA
512, effective April 1, 2013; 2012 PA 514, effective April 1, 2013; 2016 PA
283, effective December 20, 2016. Because these amendments do not
concern preemption or local zoning restrictions, we are primarily
concerned with the electorate’s intent when determining whether a
direct conflict exists between the MMMA and the Byron Township
Zoning Ordinance.
140 505 MICH 130 [Apr

III. ANALYSIS

Generally, local governments may control and regu-

late matters of local concern when such power is
conferred by the state. City of Taylor v Detroit Edison
Co, 475 Mich 109, 117-118; 715 NW2d 28 (2006). State
law, however, may preempt a local regulation either
expressly or by implication. Mich Gun Owners, Inc v
Ann Arbor Pub Sch, 502 Mich 695, 702; 918 NW2d
756 (2018), citing Detroit v Ambassador Bridge Co,
481 Mich 29, 35; 748 NW2d 221 (2008). Implied
preemption can occur when the state has occupied the
entire field of regulation in a certain area (field
preemption) or when a local regulation directly con-
flicts with state law (conflict preemption). Mich Gun
Owners, Inc, 502 Mich at 702. In the context of conflict
preemption, a direct conflict exists when “the ordi-
nance permits what the statute prohibits or the
ordinance prohibits what the statute permits.” People
v Llewellyn, 401 Mich 314, 322 n 4; 257 NW2d 902
(1977).
We only address whether the MMMA is in direct
conflict with the township’s zoning ordinance. We do
not address field preemption because the trial court did
not base its preemption ruling on that doctrine. See
DeRuiter, 325 Mich App at 287 (declining to address
field preemption because “the trial court never based
its ruling on field preemption of zoning”). Likewise, we
do not consider express preemption because DeRuiter
has not argued that the MMMA expressly preempts
the zoning ordinance at issue.
Conflict preemption applies if “the ordinance is in
direct conflict with the state statutory scheme[.]”
Llewellyn, 401 Mich at 322. An examination of whether
the MMMA directly conflicts with the zoning ordinance
2020] DERUITER V BYRON TWP 141

must necessarily begin with an examination of both

the relevant provisions of the MMMA and of the
ordinance.
The MMMA affords certain protections under state
law for the medical use of marijuana. MCL 333.26424.
The MMMA defines the phrase “medical use of mari-
huana” as “the acquisition, possession, cultivation,
manufacture, extraction, use, internal possession, de-
livery, transfer, or transportation of marihuana,
marihuana-infused products, or paraphernalia relat-
ing to the administration of marihuana to treat or
alleviate a registered qualifying patient’s debilitating
medical condition or symptoms associated with the
debilitating medical condition.” MCL 333.26423(h).
The MMMA states, in pertinent part, that a qualifying
patient “is not subject to arrest, prosecution, or penalty
in any manner, or denied any right or privilege, includ-
ing, but not limited to, civil penalty or disciplinary
action . . . for the medical use of marihuana in accor-
dance with this act[.]” MCL 333.26424(a). The MMMA
also provides the same immunity to a primary care-
giver in “assisting a qualifying patient . . . with the
medical use of marihuana in accordance with this act.”
MCL 333.26424(b). As a condition of immunity under
either subsection, the MMMA requires a primary care-
giver or qualifying patient who cultivates marijuana to
keep their plants in an “enclosed, locked facility.” MCL
333.26424(a); MCL 333.26424(b)(2).9

9
An “enclosed, locked facility” may be a “closet, room, or other compa-
rable, stationary, and fully enclosed area . . . .” MCL 333.26423(d). The
facility may be outdoors “if [marijuana plants] are not visible to the
unaided eye from an adjacent property when viewed by an individual at
ground level or from a permanent structure and are grown within a
stationary structure that is enclosed on all sides, except for the base,” or
it may be in a vehicle under certain conditions. Id.
142 505 MICH 130 [Apr

Both lower courts held that the zoning ordinance

here directly conflicts with the MMMA because the
ordinance allows Byron Township to sanction a regis-
tered primary caregiver’s “medical use of marijuana”
when that use occurs in a commercially zoned location.
In affirming the trial court’s holding, the Court of
Appeals relied on our decision in Ter Beek II. Like the
case before us, Ter Beek II involved a challenge to a
local zoning ordinance on the basis that the ordinance
was preempted by the MMMA. In that case, we were
tasked with deciding whether the city of Wyoming’s
zoning ordinance conflicted with, and was thus pre-
empted by, the immunity provisions of the MMMA,
MCL 333.26424(a) and (b). Ter Beek II, 495 Mich at 19.
We said yes. The zoning ordinance in Ter Beek II
prohibited land uses that were contrary to federal law
and subjected such land uses to civil sanctions. Be-
cause the manufacture and possession of marijuana is
prohibited under federal law, the Wyoming ordinance
at issue in Ter Beek II had the effect of banning
outright the medical use of marijuana in the city. As a
result, there was no way that patients and caregivers
could engage in the medical use of marijuana under
the MMMA without subjecting themselves to a civil
penalty.
The Byron Township ordinance is different than the
ordinance we considered in Ter Beek II. It allows for the
medical use of marijuana by a registered primary
caregiver but places limitations on where the caregiver
may cultivate marijuana within the township (i.e., in
the caregiver’s “dwelling or attached garage” as part of
a regulated “home occupation”). See Byron Township
Zoning Ordinance, § 3.2.H.1 and § 3.2.H.2.d. But de-
spite the differences, DeRuiter argues that the Byron
Township ordinance is in direct conflict with the
2020] DERUITER V BYRON TWP 143

MMMA because the act protects a registered caregiver

from “penalty in any manner” for “assisting a qualify-
ing patient . . . with the medical use of marihuana” so
long as the caregiver abides by the MMMA’s volume
limitations and restricts the cultivation to an “en-
closed, locked facility.” See MCL 333.26424(b). The
Court of Appeals agreed.
Admittedly, our preemption analysis in Ter Beek II
considered the MMMA’s prohibition on the imposition
of a “penalty in any manner.” Ter Beek II, 495 Mich at
24. But while we sided with the plaintiff in Ter Beek II,
we cautioned that “Ter Beek does not argue, and we do
not hold, that the MMMA forecloses all local regulation
of marijuana[.]” Id. at 24 n 9.
Were we to accept DeRuiter’s argument, the only
allowable restriction on where medical marijuana
could be cultivated would be an “enclosed, locked
facility” as that term is defined by the MMMA. MCL
333.26423(d). Because the MMMA does not otherwise
limit cultivation, the argument goes, any other limita-
tion or restriction on cultivation imposed by a local
unit of government would be in conflict with the state
law.10 We disagree. The “enclosed, locked facility” re-
quirement in the MMMA concerns what type of struc-
ture marijuana plants must be kept and grown in for a
patient or caregiver to be entitled to the protections
offered by MCL 333.26424(a) and (b); the requirement
does not speak to where marijuana may be grown. In
other words, because an enclosed, locked facility could
be found in various locations on various types of

10
DeRuiter argues that the MMMA permits her to cultivate medical
marijuana in any enclosed, locked facility. She does not contend that it
was impossible or impractical for her to cultivate marijuana in her home
in accordance with Byron Township’s zoning ordinance. Consequently,
we do not address this latter possibility.
144 505 MICH 130 [Apr

property, regardless of zoning, this requirement is not

in conflict with a local regulation that limits where
medical marijuana must be cultivated.
This result is not at odds with Ter Beek II, which
involved an ordinance that resulted in a complete
prohibition of the medical use of marijuana, despite the
MMMA’s authorization of such use, see MCL
333.26427(a). A local ordinance is preempted when it
bans an activity that is authorized and regulated by
state law. For example, in Nat’l Amusement Co v
Johnson, 270 Mich 613, 614; 259 NW 342 (1935), we
considered a city ordinance that banned a person from
“ ‘tak[ing] part in any amusement or exhibition which
shall result in a contest to test the endurance of the
participants.’ ” We concluded that the ordinance was
preempted by a state statute that regulated “endur-
ance contests” and made it unlawful to participate in
such contests “except in accordance with the provisions
of this act.” Id. at 615 (quotation marks omitted). We
explained:
Where an amusement, which has been lawful and
unregulated, is not evil per se but may be conducted in a
good or bad manner, is the subject of legislation, regula-
tory, not prohibitory, it would seem clear that the legisla-
ture intended to permit continuance of the amusement,
subject to statutory conditions. The statute makes it
unlawful to conduct a walkathon only in violation of
certain conditions. This is merely a common legislative
manner of saying that it is lawful to conduct it if the
regulations are observed. [Id. at 616-617.]

We presumed that “the city may add to the condi-

tions” in the statute but found it impermissible that
“the ordinance attempt[ed] to prohibit what the statute
permit[ted].” Id. at 617. As with the ordinance in Nat’l
Amusement, Wyoming’s ordinance in Ter Beek II had
the effect of wholly prohibiting an activity (the medical
2020] DERUITER V BYRON TWP 145

use of marijuana) that the MMMA allows. But that

does not mean that local law cannot “add to the
conditions” in the MMMA. Id. DeRuiter’s argument
would result in an interpretation of the MMMA that
forecloses all local regulation of marijuana—the exact
outcome we cautioned against in Ter Beek II. See Ter
Beek II, 495 Mich at 24 n 9. DeRuiter nevertheless
emphasizes our statement that “the [Wyoming] Ordi-
nance directly conflicts with the MMMA by permitting
what the MMMA expressly prohibits—the imposition
of a ‘penalty in any manner’ on a registered qualifying
patient whose medical use of marijuana falls within
the scope of § 4(a)’s immunity.” Id. at 20. We appreciate
the apparent contradiction and take this opportunity
to clarify. Our analysis in Ter Beek II—in particular,
our focus on whether the MMMA permitted the city to
impose a sanction for violating the Wyoming ordinance
—suggested that the MMMA’s immunity language was
the source of the conflict. That was true in Ter Beek II
because the ordinance left no room whatsoever for the
medical use of marijuana.
In Ter Beek II, the conflict giving rise to that pre-
emption can be viewed as whether the city of Wyoming
had completely prohibited the medical use of mari-
juana that the electors intended to permit when they
approved the MMMA.11 That view meshes with our
caselaw, as indicated in our discussion of Nat’l Amuse-
ment. More recently, we declined to find a conflict
between state and local law when a locality enacted
regulations that are not “unreasonable and inconsis-

11
While this Court has stated that “[t]he MMMA does not create a
general right for individuals to use and possess marijuana in Michigan,”
People v Kolanek, 491 Mich 382, 394; 817 NW2d 528 (2012), the act
plainly evinces an intent to permit that use, under certain circum-
stances, by persons who have a legitimate medical need. See MCL
333.26422 (findings and declarations).
146 505 MICH 130 [Apr

tent with regulations established by state law,” so long

as the state regulatory scheme did not occupy the field.
Detroit v Qualls, 434 Mich 340, 363; 454 NW2d 374
(1990) (holding that a city ordinance regulating the
quantity of fireworks a retailer may store was not in
conflict with a state law that limited possession to a
“reasonable amount”). Similarly, in Miller v Fabius
Twp Bd, 366 Mich 250, 255-257; 114 NW2d 205 (1962),
we held that a local ordinance that prohibited power-
boat racing and water skiing between the hours of 4:00
p.m. and 10:00 a.m. was not preempted by a state law
that prohibited the activity “ ‘during the period 1 hour
after sunset to 1 hour prior to sunrise.’ ” In both cases,
we quoted favorably the following proposition:
The mere fact that the State, in the exercise of the
police power, has made certain regulations does not pro-
hibit a municipality from exacting additional require-
ments. So long as there is no conflict between the two, and
the requirements of the municipal bylaw are not in
themselves pernicious, as being unreasonable or discrimi-
natory, both will stand. The fact that an ordinance en-
larges upon the provisions of a statute by requiring more
than the statute requires creates no conflict therewith,
unless the statute limits the requirement for all cases to
its own prescription. Thus, where both an ordinance and a
statute are prohibitory and the only difference between
them is that the ordinance goes further in its prohibition,
but not counter to the prohibition under the statute, and
the municipality does not attempt to authorize by the
ordinance what the legislature has forbidden or forbid
what the legislature has expressly licensed, authorized, or
required, there is nothing contradictory between the pro-
visions of the statute and the ordinance because of which
they cannot coexist and be effective. Unless legislative
provisions are contradictory in the sense that they cannot
coexist, they are not deemed inconsistent because of mere
lack of uniformity in detail. [Miller, 366 Mich at 256-257,
quoting 37 Am Jur, Municipal Corporations, § 165, p 790.
2020] DERUITER V BYRON TWP 147

See also Qualls, 434 Mich at 362, quoting 56 Am Jur 2d,

Municipal Corporations, § 374, pp 408-409.]

Under this rule, an ordinance is not conflict preempted

as long as its additional requirements do not contradict
the requirements set forth in the statute.12
Plaintiff has not argued that the state’s authority to
regulate the medical use of marijuana is exclusive. The
geographical restriction imposed by Byron Township’s
zoning ordinance adds to and complements the limita-
tions imposed by the MMMA; we therefore do not
believe there is a contradiction between the state law
and the local ordinance. As in Qualls and Miller, the
local ordinance goes further in its regulation but not in
a way that is counter to the MMMA’s conditional
allowance on the medical use of marijuana. We there-
fore hold that the MMMA does not nullify a munici-
pality’s inherent authority to regulate land use under
the Michigan Zoning Enabling Act (MZEA), MCL
125.3101 et seq.,13 so long as the municipality does not

12
See Nat’l Amusement Co, 270 Mich at 616, quoting 43 CJ, p 218 (“In
order that there be a conflict between a State enactment and a
municipal regulation both must contain either express or implied
conditions which are inconsistent and irreconcilable with each other.
Mere differences in detail do not render them conflicting. If either is
silent where the other speaks, there can be no conflict between them.
Where no conflict exists, both laws stand. . . . As a general rule,
additional regulation to that of a State law does not constitute a conflict
therewith.”) (quotation marks omitted).
13
The MZEA provides that “[a] local unit of government may provide
by zoning ordinance for the regulation of land development
and . . . regulate the use of land and structures . . . .” MCL 125.3201(1).
Moreover, even if the “enclosed, locked facility” requirement did concern
where marijuana must be grown, this would not necessarily preclude a
local governmental unit from imposing additional locational restric-
tions. Rental Prop Owners Ass’n of Kent Co v Grand Rapids, 455 Mich
246, 262; 566 NW2d 514 (1997) (“The mere fact that the state, in the
exercise of the police power, has made certain regulations does not
148 505 MICH 130 [Apr

prohibit or penalize all medical marijuana cultivation,

like the city of Wyoming’s zoning ordinance did in Ter
Beek II, and so long as the municipality does not
impose regulations that are “unreasonable and incon-
sistent with regulations established by state law.”
Qualls, 434 Mich at 363. In this case, Byron Township
appropriately used its authority under the MZEA to
craft a zoning ordinance that does not directly conflict
with the MMMA’s provision requiring that marijuana
be cultivated in an enclosed, locked facility.14
DeRuiter also argues that Byron Township’s permit
requirement directly conflicts with the MMMA because
it impermissibly infringes her medical use of mari-
juana. Again, we disagree. As with the zoning ordi-
nance’s locational restriction, the permit requirement
does not effectively prohibit the medical use of mari-
juana.15 The MZEA allows Byron Township to require
prohibit a municipality from exacting additional requirements.”) (quo-
tation marks and citations omitted).
14
We do not decide whether Byron Township’s ordinance conflicts
with other aspects of the MMMA. Nor do we decide if the ordinance,
which also precludes cultivating medical marijuana outside or in a
structure detached from a residence, see Byron Township Zoning Ordi-
nance, § 3.2.G.1 and § 3.2.H.2.d, has the practical consequence of
prohibiting DeRuiter from cultivating the number of marijuana plants
she is expressly permitted by the MMMA, see MCL 333.26426(d); MCL
333.26424(a); MCL 333.26424(b)(2).
15
Byron Township’s zoning ordinance provides that “[t]he operations
of a registered primary caregiver, as a home occupation, shall be
permitted only with the prior issuance of a Township permit.” Byron
Township Zoning Ordinance, § 3.2.H.3. Additionally, “[a] complete and
accurate application shall be submitted . . . and an application fee in an
amount determined by resolution of the Township Board shall be paid.”
Byron Township Zoning Ordinance, § 3.2.H.3.a. To obtain a permit from
the township, a caregiver must demonstrate that their grow operation is
located in a full-time residence and provide state identification, their
MMMA registry identification card, information about the equipment
used to cultivate marijuana, and a description of the location being used
2020] DERUITER V BYRON TWP 149

zoning permits and permit fees for the use of buildings

and structures within its jurisdiction.16 Accordingly,
Byron Township may require primary caregivers to
obtain a permit and pay a fee before they use a building
or structure within the township for the cultivation of
medical marijuana. We express no opinion on whether
the requirements for obtaining a permit from the
township are so unreasonable as to create a conflict
with the MMMA because that argument has not been
presented to us.
To the extent DeRuiter argues that the immunity
provisions of the MMMA contribute to a blanket pro-
hibition on local governments regulating the “medical
use” of marijuana with respect to time, place, and
manner of such use, that argument sounds in field
preemption. DeRuiter made this claim in the trial
court. But because the trial court and the Court of
Appeals held that the ordinance was conflict pre-
empted, neither court reached the issue.17 Accordingly,
we decline to address it at this time.

IV. CONCLUSION

We hold that Byron’s Township’s home-occupation

zoning ordinance does not directly conflict with the
MMMA. Accordingly, we reverse the Court of Appeals’
holding to the contrary and remand to the trial court
to grow medical marijuana. Byron Township Zoning Ordinance,
§ 3.2.H.3.b. “A permit shall be granted if the application demonstrates
compliance with [the] Ordinance, the MMMA and the MMMA General
Rules.” Id.
16
The MZEA authorizes municipalities to “charge reasonable fees for
zoning permits as a condition of granting authority to use . . . build-
ings . . . and structures . . . within a zoning district established under
this act.” MCL 125.3406(1).
17
At oral argument before this Court, DeRuiter conceded that her
appeal does not concern field preemption.
150 505 MICH 130 [Apr

for further proceedings consistent with this opinion.

We do not retain jurisdiction.

MCCORMACK, C.J., and MARKMAN, ZAHRA, VIVIANO,

CLEMENT, and CAVANAGH, JJ., concurred with
BERNSTEIN, J.
2020] FOSTER V FOSTER 151

FOSTER v FOSTER

Docket No. 157705. Argued October 3, 2019 (Calendar No. 3). Decided
April 29, 2020.
Deborah L. Foster brought an action in the Dickinson Circuit Court,
Family Division, against Ray J. Foster, seeking to enforce a
consent judgment of divorce (the consent judgment) between the
parties that provided that defendant would pay plaintiff 50% of
his military disposable retired pay accrued during the marriage
or, if defendant waived a portion of his military retirement
benefits in order to receive military disability benefits, that he
would continue to pay plaintiff an amount equal to what she
would have received had defendant not elected to receive such
supplemental disability benefits (the offset provision). Defendant
retired from the United States Army in September 2007 after
more than 22 years of service. Because defendant was injured
during combat, he was eligible for combat-related special com-
pensation (CRSC) under 10 USC 1413a, and defendant applied
for CRSC around the time of his retirement. In February 2008,
defendant received notice that he was eligible for CRSC retroac-
tive to October 2007. Plaintiff had filed for divorce in Novem-
ber 2007, and the consent judgment was entered in Decem-
ber 2008. Plaintiff was receiving slightly more than $800 per
month under the consent judgment until February 2010. When
defendant began receiving CRSC, his disposable retirement ben-
efit amount had been reduced, and plaintiff’s monthly payment
was reduced to a little more than $200 per month. Beginning in
February 2010, defendant failed to pay plaintiff the difference
between the reduced amount of retirement pay she was receiving
and the amount that she had received shortly after entry of the
consent judgment. Numerous hearings took place to compel
defendant to pay plaintiff the difference between the amount
plaintiff would have been entitled to under the consent judgment
had defendant not received CRSC and the amount plaintiff
actually received after the government commenced paying defen-
dant CRSC. The trial court, Thomas D. Slagle, J., entered an
order finding defendant in contempt of court for failure to pay
plaintiff in compliance with the consent judgment. Defendant
appealed in the Court of Appeals, arguing that the trial court
152 505 MICH 151 [Apr

erred by not finding plaintiff’s attempts to enforce the consent

judgment preempted by federal law. The Court of Appeals,
MARKEY, P.J., and MURPHY and RONAYNE KRAUSE, JJ., concluded
that the matter was not preempted by federal law and affirmed
the trial court’s contempt order in an unpublished per curiam
opinion issued on October 13, 2016 (Docket No. 324853). Defen-
dant sought leave to appeal in the Supreme Court. In lieu of
granting leave to appeal, the Supreme Court vacated the judg-
ment of the Court of Appeals and remanded the case to that Court
for reconsideration in light of Howell v Howell, 581 US ___; 137 S
Ct 1400 (2017). 501 Mich 917 (2017). On remand, the Court of
Appeals, in an unpublished per curiam opinion issued on
March 22, 2018 (Docket No. 324853), again affirmed the trial
court’s finding of contempt, concluding that Howell did not
overrule the Court of Appeals’ decision in Megee v Carmine, 290
Mich App 551 (2010). Defendant again sought leave to appeal in
the Supreme Court, and the Supreme Court granted the applica-
tion. 503 Mich 892 (2018).
In a unanimous opinion by Justice ZAHRA, the Supreme Court
held:
Megee, which had held that the portion of retirement pay that
the plaintiff waived to receive CRSC was compensable to the
defendant in the division of assets pursuant to divorce proceed-
ings, was overruled. Under 38 USC 1101 et seq., veterans who
became disabled as a result of military service are eligible for
disability benefits. However, in order to prevent veterans from
receiving double payment in the form of retirement pay and
disability benefits, federal law typically insists that, to receive
disability benefits, a retired veteran must give up an equivalent
amount of retirement pay. And since retirement pay is taxable
while disability benefits are not, the veteran often elects to waive
retirement pay in order to receive disability benefits. An excep-
tion to the typical bar against receipt of both retirement pay and
disability benefits—and the one most relevant to the instant
matter—is CRSC, which is separate from standard disability
benefits. Under the Uniformed Services Former Spouses’ Protec-
tion Act, 10 USC 1408 et seq., state courts were authorized to
treat “disposable retired pay” as divisible community property in
a divorce. Under Howell, however, federal law completely pre-
empts the states from treating waived military retirement pay as
divisible community property. Howell held that a state court may
not order a veteran to indemnify a former spouse for any loss in
a former spouse’s share of the veteran’s retirement pay caused by
the veteran’s waiver of retirement pay to receive service-related
2020] FOSTER V FOSTER 153

disability benefits. Disability pay cannot become divisible marital

property through the use of an order requiring the veteran to
“reimburse” or “indemnify” the spouse, rather than an order
dividing a portion of waived retirement pay outright. To the
extent that Howell was not concerned with CRSC specifically, the
United States Supreme Court has signaled that Howell is never-
theless applicable to such benefits: on the basis of its decision in
Howell, the United States Supreme Court has vacated state-court
decisions ruling that veterans could be forced to reimburse former
nonveteran spouses in divorce proceedings if they had waived
retirement pay in order to receive CRSC under 10 USC 1413a,
and those types of benefits were the very same kind at issue in
this case. Accordingly, Howell and Mansell v Mansell, 490 US 581
(1989), preclude any provision of a divorce judgment requiring
that a nonveteran former spouse receive payments in an amount
equal to what he or she would have received if the veteran former
spouse had not waived his or her retirement pay in order to obtain
CRSC. A “reimbursement” or “indemnification” to compensate for
the reduction of payments resulting from the nonveteran spouse’s
share of partially waived military retirement pay is effectively no
different than a direct division of the disability benefits them-
selves. Furthermore, because CRSC is not “retired pay” under 10
USC 1413a(g), it would not be subject to division as a marital
asset under 10 USC 1408(c). Any amounts waived that lead to the
receipt of CRSC would likewise not be divisible in this manner.
Additionally, the parties’ agreement under the offset provision of
the consent judgment that plaintiff continue to receive funds
equal to those she would have received had defendant not elected
to receive CRSC constituted an impermissible assignment under
38 USC 5301(a)(3)(A). Accordingly, the trial court was preempted
under federal law from including the offset provision in the
consent judgment. Plaintiff also argued that defendant’s appeal
was an impermissible collateral attack on the divorce judgment,
and the Court of Appeals agreed. But the Court of Appeals
analyzed the issue in a conclusory fashion. That portion of the
Court of Appeals judgment had to be vacated and the case
remanded for the Court of Appeals to address the effect of
preemption on the trial court’s subject-matter jurisdiction to
enter the consent judgment of divorce containing the offset
provision and to address defendant’s ability to challenge the
consent judgment on collateral review.
Court of Appeals opinion and judgment concluding that defen-
dant’s contentions amounted to an improper collateral attack on
the consent judgment vacated; remainder of the Court of Appeals
opinion and judgment reversed. Case remanded to the Court of
154 505 MICH 151 [Apr

Appeals to address the effect of this holding on defendant’s ability

to challenge the terms of the consent judgment.
Justice VIVIANO, concurring, fully agreed with the majority’s
reasoning and holding that the trial court was preempted under
federal law from including the offset provision in the consent
judgment and also agreed that the case should be remanded to the
Court of Appeals so that the Court of Appeals may consider
whether defendant may challenge the offset provision on collateral
review. Justice VIVIANO wrote separately to properly frame the
inquiry, to clarify caselaw, and to point to some of the pertinent
authorities that might aid the Court of Appeals as it addresses
whether the particular type of preemption at issue in this case is
jurisdictional. Defendant’s assertion of federal preemption as a
defense to a contempt proceeding brought to enforce the offset
provision in the parties’ divorce judgment is a collateral attack on
a final judgment. Therefore, in order to modify his divorce judg-
ment in this collateral proceeding, defendant must establish that
the type of federal preemption at issue deprives state courts of
subject-matter jurisdiction. However, contrary to defendant’s as-
sertion, not all federal preemption deprives state courts of subject-
matter jurisdiction; state courts are only deprived of jurisdiction
when Congress has designated a federal forum for resolution of the
class of disputes at issue. Furthermore, a majority of state courts
have found that federal law does not deprive them of subject-
matter jurisdiction over the type of veterans’ and military disabil-
ity benefits at issue in this case, instead holding that military
benefits can be divided under the law of res judicata.

DIVORCE — CONSENT JUDGMENTS — DIVISION OF MARITAL PROPERTY —

VETERAN’S RETIREMENT PAY — WAIVER OF RETIREMENT PAY TO RECEIVE
SERVICE — RELATED DISABILITY BENEFITS.
A state court may not order a veteran to indemnify a former spouse
for any loss in a former spouse’s share of the veteran’s retirement
pay caused by the veteran’s waiver of retirement pay to receive
service-related disability benefits, including combat-related special
compensation; disability pay cannot become divisible marital prop-
erty through the use of an order requiring the veteran to reimburse
or indemnify the spouse, rather than an order dividing a portion of
waived retirement pay outright (10 USC 1408; 10 USC 1413a).

Adam L. Kruppstadt, PC (by Adam L. Kruppstadt)

for plaintiff.

Carson J. Tucker for defendant.

2020] FOSTER V FOSTER 155

Amici Curiae:

Willingham & Coté, PC (by Kimberlee A. Hillock)

and Francis White Law, PLLC (by Brian K. Lewis) for
Operation Firing for Effect, Forgotten Warriors Proj-
ect, Inc., and Veterans of Foreign Wars.

Kent L. Weichmann and Mika Meyers PLC (by Eliza-

beth K. Bransdorfer) for the Family Law Section of the
State Bar of Michigan.

ZAHRA, J. This case involves a dispute between

former spouses who entered into a consent judgment
of divorce (the consent judgment), which provided
that defendant would pay plaintiff 50% of his military
retirement benefits. Beyond that, the parties agreed
that if defendant waived a portion of his military
retirement benefits in order to receive military dis-
ability benefits, he would continue to pay plaintiff an
amount equal to what she would have received had
defendant not elected to receive such supplemental
disability benefits. Defendant elected to increase his
disability benefits when he applied for Combat-
Related Special Compensation (CRSC), a form of
military disability benefits, pursuant to 10 USC
1413a. He started receiving CRSC shortly after the
divorce. As a result, defendant’s retirement benefits
decreased, which in turn decreased the share of the
retirement benefits payable to plaintiff. When defen-
dant failed to reimburse plaintiff for the reduced
payment she received in connection with defendant’s
lowered military retirement benefits, plaintiff sought
relief in the Dickinson Circuit Court, asking that the
consent judgment be enforced. The trial court and the
Court of Appeals enforced the plain terms of the
consent judgment and required defendant to reim-
156 505 MICH 151 [Apr

burse plaintiff for the reduction in her interest in

defendant’s retirement benefits. Defendant argues
that federal law preempts state law in regard to the
division of veteran benefits and, thus, the consent
judgment is unenforceable.
We conclude that federal law preempts state law
such that the consent judgment is unenforceable to
the extent that it required defendant to reimburse
plaintiff for the reduction in the amount payable to
her due to his election to receive CRSC. Although the
Court of Appeals indicated its agreement with plain-
tiff’s assertion that defendant was engaging in an
improper collateral attack against the consent judg-
ment, the panel did not discuss the effect of federal
preemption on the trial court’s subject-matter juris-
diction or defendant’s ability to challenge the terms of
the consent judgment outside of direct appeal. Be-
cause these questions remain important, we vacate
that portion of the Court of Appeals’ opinion agreeing
with plaintiff that defendant was engaging in an
improper collateral attack and reverse the balance of
the Court of Appeals’ opinion in this case. Moreover,
we overrule the Court of Appeals’ opinion in Megee v
Carmine, which held that a veteran is obligated to
compensate a former spouse in an amount equal to
the share of retirement pay that the nonveteran
spouse would have received, pursuant to a divorce
judgment, had the veteran not elected to waive mili-
tary retirement pay in favor of CRSC.1 This case is
remanded to the Court of Appeals so that the panel
may address the effect of our holdings on defendant’s
ability to challenge the terms of the consent judgment.

1
Megee v Carmine, 290 Mich App 551, 574-575; 802 NW2d 669 (2010).
2020] FOSTER V FOSTER 157

I. FACTS AND PROCEDURAL HISTORY

Defendant, Ray Foster, commenced service in the

United States Army in 1985, prior to his marriage to
plaintiff, Deborah Foster. During the marriage, defen-
dant was deployed in the Iraq war and suffered serious
and permanently disabling combat injuries. Thereafter,
defendant continued his military career and, after more
than 22 years of service, he retired in September 2007.
Because defendant was injured during combat, he was
eligible for CRSC under 10 USC 1413a, and defendant
applied for CRSC around the time of his retirement. In
February 2008, defendant received notice that he was
eligible for CRSC retroactive to October 2007.
Plaintiff filed for divorce in November 2007, and a
final consent judgment of divorce was entered in De-
cember 2008. Before entering that judgment, the trial
court conducted a hearing regarding the proposed
consent judgment. Defendant testified that he was
receiving both military retirement pay and military
disability benefits based on his combat-related inju-
ries. The litigants, through counsel, agreed that defen-
dant’s disability benefits were not subject to division by
the court because they were not marital property
under federal law. At the time of the divorce, plaintiff
was gainfully employed as a registered nurse.
The proposed property settlement awarded plaintiff
100% of any interest she acquired in retirement and
pension benefits as a result of her employment during
the marriage. Additionally, plaintiff was to receive 50%
of defendant’s disposable retirement pay that accrued
during the marriage.2 The parties also agreed to the

2
The consent judgment provided that plaintiff would receive 50% of
defendant’s disposable retirement pay based on that portion of the
retirement that accrued during the course of the marriage. Plaintiff
158 505 MICH 151 [Apr

inclusion of the following provision (the offset provi-

sion) in the proposed consent judgment:
If Defendant should ever become disabled, either par-
tially or in whole, then Plaintiff’s share of Defendant’s
entitlement shall be calculated as if Defendant had not
become disabled. Defendant shall be responsible to pay,
directly to Plaintiff, the sum to which she would be
entitled if Defendant had not become disabled. Defendant
shall pay this sum to Plaintiff out of his own pocket and
earnings, whether he is paying that sum from his disabil-
ity pay or otherwise, even if the military refuses to pay
those sums directly to Plaintiff. If the military merely
reduces, but does not entirely stop, direct payment to
Plaintiff, Defendant shall be responsible to pay directly to
Plaintiff any decrease in pay that Plaintiff should have
been awarded had Defendant not become disabled, to-
gether with any Cost of Living increases that Plaintiff
would have received had Defendant not become disabled.
Failure of Defendant to pay these amounts is punishable
through all contempt powers of the Court.

At the divorce hearing, the trial court inquired as to

why the language of this provision suggested that
defendant was not currently receiving any disability
benefits when, in fact, he was. Counsel explained that
it was intended to apply in the event that defendant
was offered an increase in disability benefits because
such an increase would diminish the retirement ben-
efits owed to plaintiff under the proposed settlement.
The trial court inquired into defendant’s understand-
ing of this provision:
The Court: . . . Mr. Foster, you do acknowledge that if
you were to defer any of your current military retirement
pay or convert it to disability pay, or if your military
retirement pay were reduced because the level of your

understood that this meant she would receive something slightly less
than a 50/50 split because defendant was employed in the military
before the marriage.
2020] FOSTER V FOSTER 159

disability pay was increased, you acknowledge this

Court’s ability to enforce payment to Ms. Foster [of] the
level of benefits that she would be entitled [to] presently
from your retirement pay?
[Defendant]: Yes.

No specific amounts were mentioned at the hearing or

in the actual consent judgment. Suffice it to say,
however, that plaintiff received slightly more than
$800 per month until February 2010. When defendant
began receiving CRSC,3 his disposable retirement ben-
efit amount was reduced, and plaintiff’s monthly pay-
ment was reduced to a little more than $200.4
Defendant nonetheless failed to pay plaintiff the
difference between the reduced amount of retirement
pay she received beginning in February 2010 and the
amount that she had received shortly after entry of the
consent judgment. Consequently, numerous hearings
took place in the trial court over several years, all of
which were designed to compel defendant to pay plain-
tiff the difference between the amount plaintiff would
have been entitled to under the consent judgment had
defendant not received CRSC and the amount plaintiff
actually received after the government commenced

3
Retirement pay is taxable, whereas disability benefits are not, and
so defendant was economically incentivized to waive retirement pay in
favor of disability benefits. See Howell v Howell, 581 US ___, ___; 137 S
Ct 1400, 1403; 197 L Ed 2d 781 (2017), citing McCarty v McCarty, 453
US 210, 211-215; 101 S Ct 2728; 69 L Ed 2d 589 (1981).
4
The Court of Appeals concluded that defendant became eligible to
receive CRSC after entry of the consent judgment. This is contrary to
defendant’s testimony, and we have found nothing in the record to
support this conclusion. Defendant testified at the September 30, 2010
show-cause hearing that he applied for CRSC when he applied to retire
and that he received correspondence from the Veteran’s Administration
that he was approved to receive those benefits retroactive to Octo-
ber 2007. Defendant claimed that he shared this correspondence with
his lawyer.
160 505 MICH 151 [Apr

paying defendant CRSC. These proceedings culmi-

nated in the order from which defendant appeals that
found him in contempt of court for failure to pay
plaintiff in compliance with the consent judgment. The
court ordered him to pay plaintiff $1,000 per month,
with $812 credited as current payments due under the
consent judgment and $188 to be credited against the
arrearage of $34,398 until the arrearage was paid in
full. Defendant has been paying plaintiff in monthly
installments since the contempt order was entered.
Payments were guaranteed by an “appearance bond”
in the amount of $9,500 and secured with a lien on his
mother’s home.
Defendant appealed in the Court of Appeals, arguing
that the trial court erred by not finding plaintiff’s
attempts to enforce the consent judgment preempted
by federal law. The Court of Appeals concluded that the
matter was not preempted by federal law and affirmed
the trial court’s contempt order.5 Defendant sought
leave to appeal in this Court. In lieu of granting leave
to appeal, we vacated the judgment of the Court of
Appeals and remanded the case to that Court for
reconsideration in light of the opinion of the Supreme
Court of the United States in Howell v Howell.6 On
remand, the Court of Appeals again affirmed the trial
court’s finding of contempt, concluding that Howell did
not overrule the Court of Appeals’ decision in Megee.7

5
Foster v Foster, unpublished per curiam opinion of the Court of
Appeals, issued October 13, 2016 (Docket No. 324853), pp 1, 5 (Foster I),
vacated 501 Mich 917 (2017).
6
Foster v Foster, 501 Mich 917 (2017), citing Howell, 581 US ___; 137
S Ct 1400.
7
Foster v Foster (On Remand), unpublished per curiam opinion of the
Court of Appeals, issued March 22, 2018 (Docket No. 324853) (Foster II),
pp 1, 7.
2020] FOSTER V FOSTER 161

The panel reasoned that Howell was distinguishable

because it involved general service-connected disabil-
ity benefits and because the Howell opinion rested
squarely on the language in former 10 USC
1408(a)(4)(B), which provided—and still provides in 10
USC 1408(a)(4)(A)(ii)—that “disposable retired pay”
means a member’s total monthly retired pay less
amounts that “are deducted from the retired pay . . . as
a result of . . . a waiver of retired pay required by law
in order to receive compensation under title 5 or title
38[.]”8 The Court of Appeals also observed that the
Megee decision distinguished CRSC from general
service-connected disability pay found in Title 38 on
the basis of CRSC’s status as Title 10 compensation.9
Given that CRSC is at issue in the instant case, and
that Howell did not concern or analyze a waiver of
retirement pay in favor of CRSC, the Court of Appeals
concluded that Megee was on point and remained
binding precedent.10 Defendant again sought relief in
this Court, and we granted his application for leave to
appeal to consider the federal-preemption question,
the continuing viability of Megee, and the propriety of
the contempt order entered against defendant.11

II. ANALYSIS

Defendant argues that under federal law as outlined

in Howell, veterans’ disability benefits are—and al-
ways have been—nondisposable, indivisible benefits
that constitute a personal entitlement free from state
legal process. He contends that CRSC is categorically

8
Id. at 7, citing Howell, 581 US at ___; 137 S Ct at 1402-1404.
9
Foster II, unpub op at 7.
10
Id., citing MCR 7.215(J)(1).
11
Foster v Foster, 503 Mich 892 (2018).
162 505 MICH 151 [Apr

precluded from being considered disposable retired pay

under the Uniformed Services Former Spouses’ Protec-
tion Act (USFSPA) and that federal law thus preempts
the states from an exercise of authority that would
result in the division of such benefits. This remains
true, defendant asserts, even when a consent judgment
of divorce uses language effectively “indemnifying” or
“reimbursing” a nonveteran spouse for payments that
would have been received if retirement pay had not
been waived in order to receive disability benefits, as
opposed to language dividing received disability ben-
efits outright.

A. LEGAL BACKGROUND

Background information on the framework providing

for military retired pay and military disability benefits,
including CRSC, is useful to review before assessing the
merits of the parties’ arguments. “Members of the
Armed Forces who serve for a specified period, generally
at least 20 years, may retire with retired pay.”12 Retire-
ment pay is calculated on the basis of the years served
and the rank attained by the retiring veteran.13
In McCarty v McCarty, the Supreme Court of the
United States held that federal law precludes state
courts from treating military retirement pay as divis-
ible marital property in divorce proceedings.14 Specifi-
cally, the Supreme Court interpreted federal statutes
governing retirement benefits and concluded that it

12
Mansell v Mansell, 490 US 581, 583; 109 S Ct 2023; 104 L Ed 2d 675
(1989) (citations omitted).
13
Id. Additional retired pay may be warranted when a service
member is recalled to active duty. McCarty, 453 US at 223 n 16, citing 10
USC 1402.
14
McCarty, 453 US at 223-232.
2020] FOSTER V FOSTER 163

was the intent of Congress that military retired pay

“actually reach the beneficiary.”15 Thus, under McCarty,
“[r]etired pay [could not] be attached to satisfy a
property settlement incident to the dissolution of a
marriage.”16
Congress responded with the enactment of the
USFSPA.17 Under the new statutory scheme, state
courts were authorized to treat “disposable retired
pay” as divisible community property in a divorce.18
The pertinent statutory text reads:
Subject to the limitations of this section, a court may
treat disposable retired pay payable to a member for pay
periods beginning after June 25, 1981, either as property
solely of the member or as property of the member and his
spouse in accordance with the law of the jurisdiction of such
court.[19]

The Act defines “disposable retired pay” as follows:

[T]he total monthly retired pay to which a member is
entitled less amounts which—
(i) are owed by that member to the United States for
previous overpayments of retired pay and for recoup-
ments required by law resulting from entitlement to
retired pay;
(ii) are deducted from the retired pay of such member
as a result of forfeitures of retired pay ordered by a
court-martial or as a result of a waiver of retired pay
required by law in order to receive compensation under
title 5 or title 38;

15
Id.
16
Id. at 228.
17
10 USC 1408 et seq. See also Mansell, 490 US at 584; King v King,
149 Mich App 495, 498; 386 NW2d 562 (1986).
18
10 USC 1408(c)(1). See also Mansell, 490 US at 584.
19
10 USC 1408(c)(1).
164 505 MICH 151 [Apr

(iii) in the case of a member entitled to retired pay under

chapter 61 of this title, are equal to the amount of retired
pay of the member under that chapter computed using the
percentage of the member’s disability on the date when the
member was retired (or the date on which the member’s
name was placed on the temporary disability retired list);
or
(iv) are deducted because of an election under chapter 73
of this title to provide an annuity to a spouse or former
spouse to whom payment of a portion of such member’s
retired pay is being made pursuant to a court order under
this section.[20]

Nearly eight years after the USFSPA was enacted,

the Supreme Court of the United States in Mansell v
Mansell confirmed that the USFSPA “does not grant
state courts the power to treat as property divisible
upon divorce military retirement pay that has been
waived to receive veterans’ disability benefits.”21 Man-
sell concluded that McCarty had not been abrogated by
the USFSPA, leaving in place the general rule that
state-court authority over veterans’ benefits is pre-
empted by federal law.22
“Veterans who became disabled as a result of mili-
tary service are eligible for disability benefits.”23 None-
theless, in order to prevent veterans from receiving
double payment in the form of retirement pay and
disability benefits, “federal law typically insists that,
to receive disability benefits, a retired veteran must
give up an equivalent amount of retirement pay. And,
since retirement pay is taxable while disability ben-

20
10 USC 1408(a)(4)(A).
21
Mansell, 490 US at 594-595.
22
Id. at 588-594.
23
Id. at 583.
2020] FOSTER V FOSTER 165

efits are not, the veteran often elects to waive retire-

ment pay in order to receive disability benefits.”24
An exception to the typical bar against receipt of
both retirement pay and disability benefits—and the
one most relevant to the instant matter—is CRSC,
which is separate from standard VA disability ben-
efits.25 “To be eligible for CRSC, a person must be a
member of the uniformed services who is entitled to
retired pay and who has a combat-related disability.”26
CRSC is calculated as the amount of monthly retire-
ment pay the veteran would be entitled to under Title
38, “determined without regard to any disability of the
retiree that is not a combat-related disability.”27 The
maximum amount of allowable CRSC is “the reduction
in retired pay that is applicable to the retiree for that
month under sections 5304 and 5305 of title 38.”28

B. FEDERAL PREEMPTION

We now turn to defendant’s contention that the

offset provision of the consent judgment was pre-
empted by federal law. Whether federal law preempts
state action is a question of law that this Court reviews
de novo.29 Likewise, the interpretation of a statute is a
question of law that we review de novo.30 A court’s
refusal to enter a stay is reviewed for an abuse of

24
Howell, 581 US at ___; 137 S Ct at 1403, citing McCarty, 453 US at
211-215.
25
10 USC 1413a.
26
10 USC 1413a(c).
27
10 USC 1413a(b)(1).
28
10 USC 1413a(b)(2).
29
Ter Beek v City of Wyoming, 495 Mich 1, 8; 846 NW2d 531 (2014).
30
Walters v Nadell, 481 Mich 377, 381; 751 NW2d 431 (2008).
166 505 MICH 151 [Apr

discretion,31 as is the decision to impose a security

bond.32 A court abuses its discretion when its decision
falls outside the range of reasonable and principled
outcomes.33
The Supremacy Clause of the United States Consti-
tution provides:
This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof . . . , shall be the
supreme Law of the Land; and the Judges in every State
shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.[34]

Federal law may preempt state law in multiple ways,

one of which has come to be known as “field preemp-
tion.”35 This type of preemption recognizes that “Con-
gress may have intended ‘to foreclose any state regu-
lation in the area,’ irrespective of whether state law is
consistent or inconsistent with ‘federal standards.’ ”36
Where applicable, the duly enacted laws passed by
Congress effectively forbid the states from taking ac-
tion in the field preempted.37 In assessing defendant’s
claims, we are mindful of guidance provided by the
Supreme Court of the United States, which stated that

31
Larion v Detroit, 149 Mich App 402, 410; 386 NW2d 199 (1986).
32
In re Surety Bonds for Costs, 226 Mich App 321, 331; 573 NW2d 300
(1997).
33
Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809
(2006).
34
US Const, art VI, cl 2.
35
Oneok, Inc v Learjet, Inc, 575 US 373, 377; 135 S Ct 1591; 191 L Ed
2d 511 (2015). See also Mich Canners & Freezers Ass’n, Inc v Agricul-
tural Mktg & Bargaining Bd, 467 US 461, 469; 104 S Ct 2518; 81 L Ed
2d 399 (1984).
36
Oneok, Inc, 575 US at 377, quoting Arizona v United States, 567 US
387, 401; 132 S Ct 2492; 183 L Ed 2d 351 (2012).
37
Oneok, Inc, 575 US at 377.
2020] FOSTER V FOSTER 167

“ ‘[t]he purpose of Congress is the ultimate touchstone’

in every preemption case”38 and that “Congress may
indicate its preemptive intent in two ways: ‘explic-
itly . . . in a statute’s language’ or, by implication,
through a statute’s ‘structure and purpose.’ ”39 In de-
termining whether field preemption functions as a bar
to state law, we must examine whether the trial court’s
order in this case obstructs “the accomplishment and
execution of the full purposes and objectives of Con-
gress.”40
In Howell v Howell, the Supreme Court of the
United States reiterated its conclusion from Mansell,
stating that “federal law completely pre-empts the
States from treating waived military retirement pay as
divisible community property.”41 From this, the Howell
Court broadly held that a state court may not order a
veteran to indemnify a former spouse for any loss in a
former spouse’s share of the veteran’s retirement pay
caused by the veteran’s waiver of retirement pay to
receive service-related disability benefits.42 Further, it
makes no difference whether a military veteran waives
retirement pay postjudgment or prejudgment as part
of an overall divorce settlement.43 Disability pay can-
not become divisible marital property through the use
of an order requiring the veteran to “reimburse” or

38
Arbuckle v Gen Motors LLC, 499 Mich 521, 532; 885 NW2d 232
(2016), quoting Retail Clerks Int’l Ass’n v Schermerhorn, 375 US 96, 103;
84 S Ct 219; 11 L Ed 2d 179 (1963).
39
Arbuckle, 499 Mich at 532, quoting Jones v Rath Packing Co, 430
US 519, 525; 97 S Ct 1305; 51 L Ed 2d 604 (1977).
40
See Hines v Davidowitz, 312 US 52, 67; 61 S Ct 399; 85 L Ed 581
(1941).
41
Howell, 581 US at ___; 137 S Ct at 1405.
42
Id. at ___; 137 S Ct at 1402, 1406.
43
Id. at ___; 137 S Ct at 1405.
168 505 MICH 151 [Apr

“indemnify” the spouse, rather than an order dividing

a portion of waived retirement pay outright.44
To the extent that Howell was not concerned with
CRSC specifically, the Supreme Court has signaled
that Howell is nevertheless applicable to such benefits.
For example, in Merrill v Merrill, the Supreme Court
of Arizona addressed the application of a state law to a
divorce involving a veteran and a nonveteran former
spouse.45 The statute stated that in dividing property
in a proceeding for the dissolution of a marriage,
Arizona state courts could not:
1. Consider any federal disability benefits awarded to
a veteran for service-connected disabilities pursuant to 10
United States Code § 1413a or 38 United States Code
chapter 11.
2. Indemnify the veteran’s spouse or former spouse for
any prejudgment or postjudgment waiver or reduction in
military retired or retainer pay related to receipt of the
disability benefits.
3. Award any other income or property of the veteran
to the veteran’s spouse or former spouse for any prejudg-
ment or postjudgment waiver or reduction in military
retired or retainer pay related to receipt of the disability
benefits.[46]

In cases of postdecree reductions of military retirement

pay caused by the veteran spouse’s election to receive

44
Id. at ___; 137 S Ct at 1406. The Howell Court was not ignorant of
the hardship that this holding might work on divorcing spouses. Id. at
___; 137 S Ct at 1406. Indeed, the Court noted that state courts
remained free to account for the waiver of military retirement pay when
calculating or recalculating the need for spousal support. Id. at ___; 137
S Ct at 1406, citing Rose v Rose, 481 US 619, 630-634, 632 n 6; 107 S Ct
2029; 95 L Ed 2d 599 (1987); 10 USC 1408(e)(6).
45
Merrill v Merrill, 238 Ariz 467, 468; 362 P3d 1034 (2015), vacated
581 US ___; 137 S Ct 2156 (2017).
46
Ariz Rev Stat Ann 25-318.01.
2020] FOSTER V FOSTER 169

CRSC, however, the Arizona Supreme Court held that,

so long as the decree was entered before the statute’s
effective date, the statute did not preclude entry of an
order indemnifying the nonveteran spouse to compen-
sate for the lesser payments that resulted from the
reduction.47 Similarly, in In re Marriage of Cassinelli,
the California Court of Appeals upheld an order forcing
a retired and disabled veteran to reimburse his former
spouse for the reduction of her share of his retirement
pay in a community property settlement resulting from
his waiver of retirement pay to receive disability pay
that included CRSC.48 Specifically, the California
Court of Appeals held that a state court “could properly
order [the veteran spouse] to reimburse [the nonvet-
eran spouse] for her lost community property interest”
without violating “either federal law or finality prin-
ciples.”49
In both cases, the Supreme Court of the United
States granted certiorari and vacated the judgments of
the state courts before remanding for reconsideration
in light of Howell.50 That is, on the basis of its decision
in Howell, the Supreme Court vacated state court
decisions ruling that veterans could be forced to reim-
burse former nonveteran spouses in divorce proceed-
ings if they had waived retirement pay in order to

47
Merrill, 238 Ariz at 470.
48
In re Marriage of Cassinelli, 4 Cal App 5th 1285, 1291, 1297; 210
Cal Rptr 3d 311 (2016), vacated sub nom Cassinelli v Cassinelli, 583 US
___; 138 S Ct 69 (2017).
49
Cassinelli, 4 Cal App 5th at 1291. See also id. at 1299 (“[A] state
court can order a military spouse who has waived retired pay to
reimburse a civilian spouse for the latter’s loss of a community property
interest in the retired pay without violating Mansell.”).
50
Merrill, 581 US ___; 137 S Ct 2156; Cassinelli, 583 US ___; 138 S Ct
69.
170 505 MICH 151 [Apr

receive CRSC under 10 USC 1413a. Such benefits are

of the very same kind at issue in this case.
Applying these principles to the matter at hand, we
conclude that Howell and Mansell preclude any provi-
sion of a divorce judgment requiring that a nonveteran
former spouse receive payments in an amount equal to
what he or she would have received if the veteran
former spouse had not waived his or her retirement
pay in order to obtain CRSC.51 The Howell Court
broadly stated that, in the wake of Mansell, “federal
law completely pre-empts the States from treating
waived military retirement pay as divisible community
property.”52 A “reimbursement” or “indemnification” to
compensate for the reduction of payments resulting
from the nonveteran spouse’s share of partially waived
military retirement pay is effectively no different than
a direct division of the disability benefits themselves.53
Plaintiff asserts that, under the plain language of 10
USC 1408(a)(4)(A)(ii), only those reductions in retired
pay stemming from waivers required in order to re-
ceive compensation under Title 5 or Title 38 are ex-
cluded from “disposable retired pay.” This implies that
reductions in funds resulting from waivers to receive
benefits under Title 10, like CRSC, may not be ex-
cluded from “disposable retired pay.” Therefore, main-

51
Plaintiff does not appear to argue that Howell is inapplicable to the
instant case simply because it was decided more than eight years after
the parties entered into the consent judgment at issue. To assuage any
doubt as to the applicability of Howell to this matter for this reason,
however, it is important to note that Howell is merely a clarification of
Mansell. See Howell, 581 US at ___; 137 S Ct at 1405 (“This Court’s
decision in Mansell determines the outcome here.”). Because Mansell
was decided in 1989—long before the parties were divorced—the date of
the Howell opinion’s issuance is of no matter.
52
Howell, 581 US at ___; 137 S Ct at 1405 (emphasis added).
53
Id. at ___; 137 S Ct at 1405-1406.
2020] FOSTER V FOSTER 171

tains plaintiff, the reduction can be accounted for in a

marital-asset division under 10 USC 1408(c)(1). The
Court of Appeals was apparently persuaded by this
logic.54 But plaintiff and the panel below ignored the
language of 10 USC 1413a(g) stating that “[p]ayments
under this section[, which provides for CRSC pay-
ments,] are not retired pay.” Pursuant to 10 USC
1408(a)(4)(A), disposable retired pay is calculated, prior
to accounting for reductions (including those resulting
from waivers of retired pay), by totaling the amount of
“monthly retired pay” to which a veteran is entitled.
Because CRSC is not “retired pay” under Title 10, it
would not be subject to division as a marital asset under
10 USC 1408(c). Any amounts waived that lead to the
receipt of CRSC would likewise not be divisible in this
manner.55

54
See Foster II, unpub op at 7.
55
The Court of Appeals misunderstood the nature of CRSC benefits in
this regard. See id. (distinguishing the case from Howell because Howell
“did not concern or analyze a waiver of retirement pay in favor of CRSC
disability pay”); Megee, 290 Mich App at 565 (distinguishing the case
from Mansell because the “plaintiff here did not waive his right to
retirement pay in order to receive compensation under title 5 or title 38,
but to receive title 10 compensation”). Defendant’s election of CRSC did
not directly require a waiver of retired pay. Rather, defendant’s election
to receive CRSC benefits would have been contingent on receiving
disability benefits, 10 USC 1413a(b), and the increase in disability
benefits was what would have legally triggered the decrease in retire-
ment pay. See 38 USC 5304; 38 USC 5305. A letter dated April 14, 2010,
from the Defense Finance and Accounting Service to plaintiff confirms
that the reduction in the amount paid to plaintiff “was due to the
increase in [defendant’s] Va Disability” benefits.
Moreover, it makes sense that 10 USC 1408(a)(4)(A)(ii) would not
include language allowing for the deduction of amounts waived to
receive CRSC under Title 10 because the limitation to consideration of
amounts waived in order to receive compensation under Title 5 or Title
38 was enacted in 1982. PL 97-252, § 1002; 96 Stat 718. The provision in
Title 10 allowing for CRSC, 10 USC 1413a, was not enacted until 20
years later, in 2002. PL 107-314, § 636; 116 Stat 2458.
172 505 MICH 151 [Apr

This analysis is not undone by plaintiff’s insistence

that this case is distinguishable from Howell because
the parties consented to plaintiff’s continued receipt of
funds equal to those she would have received had
defendant not elected to receive CRSC. Under 38 USC
5301(a)(1):
Payments of benefits due or to become due under any
law administered by the Secretary shall not be assignable
except to the extent specifically authorized by law, and
such payments made to, or on account of, a beneficiary
shall be exempt from taxation, shall be exempt from the
claim of creditors, and shall not be liable to attachment,
levy, or seizure by or under any legal or equitable process
whatever, either before or after receipt by the beneficiary.
The preceding sentence shall not apply to claims of the
United States arising under such laws nor shall the
exemption therein contained as to taxation extend to any
property purchased in part or wholly out of such pay-
ments. The provisions of this section shall not be con-
strued to prohibit the assignment of insurance otherwise
authorized under chapter 19 of this title [38 USC 1901 et
seq.], or of servicemen’s indemnity.
Subsection (a)(3)(A) further states that
in any case where a beneficiary entitled to compensa-
tion . . . enters into an agreement with another person
under which agreement such other person acquires for
consideration the right to receive such benefit by payment
of such compensation, pension, or dependency and indem-
nity compensation, as the case may be, . . . such agreement
shall be deemed to be an assignment and is prohibited.
“A consent judgment is in the nature of a contract, and
is to be construed and applied as such.”56 Among the
key elements of any contract in Michigan is consider-
ation.57 Thus, the consent judgment in this case effec-

56
Laffin v Laffin, 280 Mich App 513, 517; 760 NW2d 738 (2008).
57
McInerney v Detroit Trust Co, 279 Mich 42, 46; 271 NW 545 (1937).
2020] FOSTER V FOSTER 173

tively amounted to “an agreement . . . under which

agreement . . . [plaintiff] acquire[d] for consideration
the right to receive” an amount equivalent to what she
would have received had defendant not waived retire-
ment pay to receive CRSC.58 This is, under federal
statute, an impermissible “assignment.”59

C. EFFECT ON MEGEE v CARMINE

With the preceding analysis in mind, it is appropri-

ate to conclude that Howell overruled the Michigan
Court of Appeals’ judgment in Megee v Carmine. In
Megee, the veteran spouse (the plaintiff) elected to
receive CRSC, which resulted in a diminution of his
retirement pay and the nonveteran spouse’s (the de-
fendant’s) 50% award stemming from that amount.60
The Megee panel held:
[A] military spouse remains financially responsible to
compensate his or her former spouse in an amount equal
to the share of retirement pay ordered to be distributed
to the former spouse as part of a divorce judgment’s
property division when the military spouse makes a
unilateral and voluntary postjudgment election to waive
the retirement pay in favor of disability benefits contrary
to the terms of the divorce judgment. Conceptually, and
consistently with extensive caselaw from other jurisdic-
tions, we are dividing waived retirement pay in order to
honor the terms and intent of the divorce judgment.
Importantly, we are not ruling that a state court has the
authority to divide a military spouse’s CRSC, nor that
the military spouse can be ordered by a court to pay the
former spouse using CRSC funds. Rather, the compensa-
tion to be paid the former spouse as his or her share of
the property division in lieu of the waived retirement pay

58
See 38 USC 5301(a)(3)(A).
59
See id.
60
Megee, 290 Mich App at 561.
174 505 MICH 151 [Apr

can come from any source the military spouse chooses,

but it must be paid to avoid contempt of court. To be clear,
nothing in this opinion should be construed as precluding
a military spouse from using CRSC funds to satisfy the
spouse’s obligation if desired.[61]

This is, however, exactly the conduct that Howell and

Mansell endeavored to preclude. Regardless of the
voluntary nature of the waiver or the temporal rela-
tion of the waiver to the consent judgment, the Megee
panel ultimately held that the portion of retirement
pay that the plaintiff waived to receive CRSC was
compensable to the defendant in the division of assets
pursuant to divorce proceedings. We therefore over-
rule Megee.

D. PROCEEDINGS ON REMAND

Plaintiff argues that the instant appeal constitutes

an impermissible collateral attack on the consent
judgment. The panel below agreed with her in this
regard (before ruling on the merits of the parties’
contentions), but did so in a conclusory fashion,
stating that “defendant is engaging in an improper
collateral attack on the divorce judgment” and citing
Kosch v Kosch, a 1999 decision of the Court of Ap-
peals.62 But Kosch merely held that the defendant’s
failure in that case to file an appeal from the original
judgment of divorce categorically precluded a collat-
eral attack on the merits of that decision.63 This is
ordinarily true except in cases concerning jurisdictional

61
Id. at 566-567, 574-575.
62
Foster II, unpub op at 2, 6, citing Kosch v Kosch, 233 Mich App 346,
353; 592 NW2d 434 (1999) (quotation marks and citation omitted).
63
Kosch, 233 Mich App at 353.
2020] FOSTER V FOSTER 175

error.64 The Kosch opinion did not discuss this particu-

lar nuance. With this in mind, we leave it to the Court
of Appeals on remand to address the effect of our
holdings today on the trial court’s subject-matter juris-
diction to enter the consent judgment of divorce con-
taining the offset provision at issue and to address
defendant’s ability to challenge the consent judgment
on collateral review.

III. CONCLUSION

The trial court was preempted under federal law from

including in the consent judgment the offset provision
on which plaintiff relies. The broad language of Howell
precludes a provision requiring that plaintiff receive
reimbursement or indemnification payments to com-
pensate for reductions in defendant’s military retire-
ment pay resulting from his election to receive any
disability benefits, including CRSC as provided for un-
der Title 10.
Nevertheless, we express no opinion on the effect our
holdings have on defendant’s ability to challenge, on
collateral review, the consent judgment. The Court of
Appeals did not substantively review this point or the
effect of federal preemption on the trial court’s subject-
matter jurisdiction. We therefore vacate that portion of
the March 22, 2018 opinion and judgment of the Court
of Appeals concluding that defendant’s contentions
amounted to an improper collateral attack on the con-
sent judgment, and we reverse the balance of the panel’s
opinion. We remand the case to the Court of Appeals so

64
See Pettiford v Zoellner, 45 Mich 358, 361; 8 NW 57 (1881); Jackson
City Bank & Trust Co v Fredrick, 271 Mich 538, 544; 260 NW 908 (1935);
Couyoumjian v Anspach, 360 Mich 371, 386; 103 NW2d 587 (1960).
176 505 MICH 151 [Apr
CONCURRING OPINION BY VIVIANO, J.

that the panel may address the effect of our holdings on

defendant’s ability to challenge the terms of the consent
judgment.

MCCORMACK, C.J., and MARKMAN, VIVIANO, BERNSTEIN,

CLEMENT, and CAVANAGH, JJ., concurred with ZAHRA, J.

VIVIANO, J. (concurring). I concur fully in the reason-

ing of the majority opinion and its holding that the trial
court was preempted under federal law from including
the offset provision on which plaintiff relies in the
consent judgment of divorce.1 I also agree with the
majority’s decision to remand this case to the Court of
Appeals so that it may consider whether defendant
may challenge this provision of the consent judgment
on collateral review. I write separately to more fully
address questions that will arise on remand and that
are, in my view, inadequately developed by the parties’
briefs.

I. THE PARTIES’ DIVORCE JUDGMENT IS FINAL AND MAY NOT BE

MODIFIED UNLESS THE FAMILY COURT DID NOT HAVE SUBJECT-
MATTER JURISDICTION OVER THE PARTIES’ DIVORCE ACTION

Although some portions of a divorce judgment are

subject to modification, such as alimony or child sup-
port, the property-settlement provisions of a divorce
judgment “are final and, as a general rule, cannot be
modified.” Colestock v Colestock, 135 Mich App 393,
397; 354 NW2d 354 (1984), citing Boucher v Boucher,
34 Mich App 213; 191 NW2d 85 (1971). Thus, “[a]

1
I believe a more precise way to state the Court’s holding is that MCL
552.18, the statute that provides the trial court’s authority to divide
pension, annuity, or retirement benefits as part of the marital estate in
a divorce judgment, is preempted by federal law to the extent it
otherwise permits division of the type of veterans’ and military disabil-
ity benefits at issue in this case.
2020] FOSTER V FOSTER 177
CONCURRING OPINION BY VIVIANO, J.

judgment of divorce dividing marital property is res

judicata and not subject to collateral attack, even if the
judgment may have been wrong or rested on a subse-
quently overruled legal principle.” Colestock, 135 Mich
App at 397-398, citing McGinn v McGinn, 126 Mich
App 689; 337 NW2d 632 (1983).
In Buczkowski v Buczkowski, 351 Mich 216, 222-
223; 88 NW2d 416 (1958), this Court examined
whether a spouse could move to vacate a separate-
maintenance decree when the moving spouse did not
appeal the decree, had already accepted money under
the settlement, and waited four years after entry of the
decree to assert defects with it. The sole challenge to
the decree was that the court lacked jurisdiction to
enter it because it contained a legally invalid provision.
Id. at 220-221. The Court declined to vacate the decree,
explaining as follows:
We are cited to no authority to support this contention and
it is manifestly in error. The court had jurisdiction of the
parties and it had jurisdiction of the subject matter of the
suit, that is, support and maintenance. Having such
jurisdiction it also had jurisdiction to make an error if,
indeed, it did. . . .
The failure to distinguish between “the erroneous ex-
ercise of jurisdiction” and “the want of jurisdiction” is a
fruitful source of confusion and errancy of decision. In the
first case the errors of the trial court can only be corrected
by appeal or writ of error. In the last case its judgments
are void, and may be assailed by indirect as well as direct
attack. * * * The judgment of a court of general jurisdic-
tion, with the parties before it, and with power to grant or
refuse relief in the case presented, though (the judgment
is) contrary to law as expressed in the decisions of the
supreme court or the terms of a statute, is at most only an
erroneous exercise of jurisdiction, and as such is impreg-
nable to an assault in a collateral proceeding.
178 505 MICH 151 [Apr
CONCURRING OPINION BY VIVIANO, J.

The loose practice has grown up, even in some opinions,

of saying that a court had no “jurisdiction” to take certain
legal action when what is actually meant is that the court
had no legal “right” to take the action, that it was in error.
If the loose meaning were correct it would reduce the
doctrine of res judicata to a shambles and provoke endless
litigation, since any decree or judgment of an erring tribu-
nal would be a mere nullity. It must constantly be borne in
mind, as we have pointed out in Jackson City Bank & Trust
Co v Fredrick, 271 Mich 538, 544[; 260 NW 908 (1935)],
that:

There is a wide difference between a want of

jurisdiction, in which case the court has no power to
adjudicate at all, and a mistake in the exercise of
undoubted jurisdiction, in which case the action of
the trial court is not void although it may be subject
to direct attack on appeal. This fundamental distinc-
tion runs through all the cases.

[Buczkowski, 351 Mich at 221-222 (cleaned up).]

We have often cited Jackson City Bank for this

proposition, including most recently last term in In re
Ferranti, 504 Mich 1, 22; 934 NW2d 610 (2019), in
which we quoted the very next paragraph from that
case:
“[W]hen there is a want of jurisdiction over the parties, or
the subject-matter, no matter what formalities may have
been taken by the trial court, the action thereof is void
because of its want of jurisdiction, and consequently its
proceedings may be questioned collaterally as well as
directly. They are of no more value than as though they did
not exist. But in cases where the court has undoubted
jurisdiction of the subject matter, and of the parties, the
action of the trial court, though involving an erroneous
exercise of jurisdiction, which might be taken advantage of
by direct appeal, or by direct attack, yet the judgment or
decree is not void though it might be set aside for the
irregular or erroneous exercise of jurisdiction if appealed
2020] FOSTER V FOSTER 179
CONCURRING OPINION BY VIVIANO, J.

from. It may not be called in question collaterally.” [Fer-

ranti, 504 Mich at 22, quoting Jackson City Bank, 271 Mich
at 544-545.]

In McGinn, a case also involving military pensions,

the Court of Appeals explained the importance of
finality in the context of divorce judgments:
Public policy demands finality of litigation in the area
of family law to preserve surviving family structure. To
permit divorce judgments which have long since become
final to be reopened so as to award military pensions to
the husband as his separate property would flaunt [sic]
the rule of res judicata and upset settled property distri-
butions upon which parties have planned their lives. The
consequences would be devastating, not only from the
standpoint of the litigants, but also in terms of the work
load of the courts. [McGinn, 126 Mich App at 693
(citation omitted).]

As defendant appears to concede, these finality con-

cerns are certainly implicated in this case because
defendant’s assertion of federal preemption as a de-
fense to a contempt proceeding brought to enforce the
offset provision in the parties’ divorce judgment is a
collateral attack on a final judgment. See generally
Kirby v Mich High Sch Athletic Ass’n, 459 Mich 23,
40; 585 NW2d 290 (1998) (noting that “[a] party must
obey an order entered by a court with proper jurisdic-
tion, even if the order is clearly incorrect, or the party
must face the risk of being held in contempt”).
Therefore, in order to modify his divorce judgment
in this collateral proceeding, defendant must estab-
lish that the type of federal preemption at issue
deprives state courts of subject-matter jurisdiction.
See Hillsdale Co Senior Servs, Inc v Hillsdale Co, 494
Mich 46, 51 n 3; 832 NW2d 728 (2013) (“[T]he [l]ack of
jurisdiction of the subject matter may be raised at any
time and the parties to an action cannot confer
180 505 MICH 151 [Apr
CONCURRING OPINION BY VIVIANO, J.

jurisdiction by their conduct or action nor can they

waive the defense by not raising it.”) (quotation
marks and citation omitted). But instead of focusing
his analysis on whether the federal statutes govern-
ing veterans’ and military disability benefits deprive
the state courts of subject-matter jurisdiction, defen-
dant makes the sweeping assertion that all types of
federal preemption deprive state courts of subject-
matter jurisdiction.2 Although I believe defendant’s
assertion is demonstrably incorrect, some of our prec-
edents do appear at first glance to support it. And, as
defendant acknowledges, the issue could also have
implications far beyond this case if the entire spectrum
of federal-preemption claims could potentially be
raised to mount collateral attacks on final judgments
in myriad types of cases. See Defendant’s Brief on
Appeal (February 27, 2019) at 6 (“There should be no
doubt that an order . . . preempted by federal law is
void and may be attacked, challenged, and nullified at
any time, even on appeal, indeed, even after the time
for appeal has passed.”). Therefore, before addressing
the precise legal issue in this case, I will first explain
why defendant’s assertion that all types of federal

2
See Defendant’s Brief on Appeal (February 27, 2019) at 2 (“As a
prima facie jurisdictional matter, this Court has long held where
federal law preempts state law, as it absolutely does in this case, the
courts of this state lack subject matter jurisdiction to enter an order
contrary to the prevailing federal rule.”); id. (“Where subject-matter
jurisdiction is lacking due to federal preemption, any judgments and
orders entered in contravention of the prevailing federal law are void
and subject to collateral attack, notwithstanding consent of the parties
or the length of time that has passed since such judgments or orders
were entered.”); id. at 33 (“Where federal pre-emption applies to bar a
state court’s actions, a reviewing court must address the preemptive
effect of the federal law on the lower court’s jurisdiction because state
courts do not have subject matter jurisdiction to enter orders contrary
to the federal mandate.”); id. (“A state court that rules incorrectly on a
matter preempted by federal law acts in excess of its jurisdiction. Such
rulings, and the judgments they spring from, are void ab initio and
exposed to collateral attack.”).
2020] FOSTER V FOSTER 181
CONCURRING OPINION BY VIVIANO, J.

preemption deprive state courts of subject-matter ju-

risdiction is wrong as a matter of law.

II. CONTRARY TO DEFENDANT’S SWEEPING ASSERTION,

NOT ALL TYPES OF FEDERAL PREEMPTION DEPRIVE
STATE COURTS OF SUBJECT-MATTER JURISDICTION

The law in this area has been aptly summarized as

follows:
State courts have subject-matter jurisdiction over fed-
eral preemption defenses. The preemption doctrine does
not deprive state courts of subject matter jurisdiction over
claims involving federal preemption unless Congress has
given exclusive jurisdiction to a federal forum.
Accordingly, where state and federal courts have con-
current jurisdiction over a federal cause of action, and a
state proceeding on such cause of action presents a federal
preemption issue, the proper course is to seek resolution of
that issue by the state court. Similarly, there are some
cases in which a state law cause of action is preempted by
federal law, but only a state court has jurisdiction to so
rule. A finding of preemption will generally not remove the
case from the jurisdiction of the state court but will only
alter the law applied by that court. [21 CJS, Courts, § 272
(emphasis added; citations omitted).]

It is well settled that “[s]tate courts are adequate

forums for the vindication of federal rights.” See Burt v
Titlow, 571 US 12, 19; 134 S Ct 10; 187 L Ed 2d 348
(2013). See id. (“The States possess sovereignty con-
current with that of the Federal Government, subject
only to limitations imposed by the Supremacy Clause.
Under this system of dual sovereignty, we have consis-
tently held that state courts have inherent authority,
and are thus presumptively competent, to adjudicate
claims arising under the laws of the United States.”)
(cleaned up). See also Office Planning Group, Inc v
Baraga-Houghton-Keweenaw Child Dev Bd, 472 Mich
182 505 MICH 151 [Apr
CONCURRING OPINION BY VIVIANO, J.

479, 493; 697 NW2d 871 (2005) (“It has long been
established that, so long as Congress has not provided
for exclusive federal-court jurisdiction, state courts
may exercise subject-matter jurisdiction over federal-
law claims whenever, by their own constitution, they
are competent to take it. State courts possess sover-
eignty concurrent with that of the federal government,
subject only to limitations imposed by the Supremacy
Clause. Thus, state courts are presumptively compe-
tent to assume jurisdiction over a cause of action
arising under federal law. If concurrent jurisdiction
otherwise exists, subject-matter jurisdiction over a
federal-law claim is governed by state law.”) (cleaned
up).
Notably, these same principles apply when federal
courts are analyzing whether a preemption claim de-
prives the federal courts of subject-matter jurisdiction.
In Violette v Smith & Nephew Dyonics, Inc, 62 F3d 8,
11 (CA 1, 1995), cert den 517 US 1167 (1996), the
defendant argued for the first time on appeal that the
plaintiff’s state-law products-liability claims were pre-
empted by certain provisions of a federal statute.
Relying upon Int’l Longshoremen’s Ass’n, AFL-CIO v
Davis, 476 US 380; 106 S Ct 1904; 90 L Ed 2d 389
(1986), the defendant argued that “preemption is a
jurisdictional matter which cannot be waived and may
be raised at any time.” Violette, 62 F3d at 11. Distin-
guishing between “choice-of-forum” and “choice-of-law”
preemption, the federal court explained:
[W]here Congress has designated another forum for the
resolution of a certain class of disputes, such as the
National Labor Relations Board in Davis, such designa-
tion deprives the courts of jurisdiction to decide those
cases. Where, however, the question is whether state tort
or federal statutory law controls, preemption is not juris-
dictional and is subject to the ordinary rules of appellate
2020] FOSTER V FOSTER 183
CONCURRING OPINION BY VIVIANO, J.

adjudication, including timely presentment and waiver.

[Id. at 11-12 (citation omitted).]

Since the type of preemption at issue in Violette pre-

sented a “choice-of-law” question, it was “not . . . juris-
dictional, and was waived when not presented in the
district court.” Id. at 12.
Our Court of Appeals correctly explained the two-
part preemption inquiry as follows:
Where preemption exists, . . . state courts will not always
be prevented from acting. A litigant may still enforce
rights pursuant to the Federal law in state courts unless
the Constitution or Congress has, expressly or impliedly,
given a Federal court exclusive jurisdiction over the sub-
ject matter. Mondou v New York, N H & H R Co, 223 US
1; 32 S Ct 169; 56 L Ed 327 (1912); Claflin v Houseman, 93
US 130; 23 L Ed 833 (1876). See Hart and Wechsler, The
Federal Courts and The Federal System (2d ed), pp 427-
438. Thus, we must determine whether Congress has
preempted states from legislating or regulating the sub-
ject matter of the instant case, and, if it has, whether it
has also vested exclusive jurisdiction of that subject mat-
ter in the Federal court system. [Marshall v Consumers
Power Co, 65 Mich App 237, 244-245; 237 NW2d 266
(1976).]

Defendant cites Henry v Laborers’ Local 1191, 495

Mich 260; 848 NW2d 130 (2014), for the proposition
that federal preemption deprives state courts of
subject-matter jurisdiction. In Henry, after observing
that the defendants first raised the issue of preemption
in the Court of Appeals, we stated that “preemption is
a question of subject-matter jurisdiction” and that,
“[a]s such, this Court must consider it.” Id. at 287 n 82.
Although our statement that “preemption is a question
of subject-matter jurisdiction” was made without
qualification, the above statements were supported by
the following quotation from Davis, 476 US at 393: “A
184 505 MICH 151 [Apr
CONCURRING OPINION BY VIVIANO, J.

claim of Garmon pre-emption is a claim that the state

court has no power to adjudicate the subject matter of
the case, and when a claim of Garmon pre-emption is
raised, it must be considered and resolved by the state
court.” Thus, our assertion was made in the context of
Garmon preemption and was indisputably correct in
that context since Congress has established an exclu-
sive federal forum, the National Labor Relations
Board, to adjudicate certain claims under the National
Labor Relations Act (NLRA).3 And, even if the Court
purported to make such a broad holding, it would be
dicta since it was “not necessarily involved nor essen-
tial to determination of the case . . . .” See Wold Archi-
tects & Engineers v Strat, 474 Mich 223, 232 n 3; 713
NW2d 750 (2006) (quotation marks and citation omit-
ted). For these reasons, I do not believe that Henry may
properly be read as supporting defendant’s sweeping
assertion that all types of preemption deprive the state
courts of subject-matter jurisdiction.4

3
The term “Garmon preemption” was coined after the United States
Supreme Court’s decision in San Diego Bldg Trades Council v Garmon,
359 US 236; 79 S Ct 773; 3 L Ed 2d 775 (1959). See id. at 245 (“When an
activity is arguably subject to § 7 or § 8 of the [NLRA], the States as well
as the federal courts must defer to the exclusive competence of the
National Labor Relations Board if the danger of state interference with
national policy is to be averted.”). Our Court and the Court of Appeals
have found preemption under Garmon in a number of cases. See, e.g.,
Henry, 495 Mich 260; Bebensee v Ross Pierce Electric Corp, 400 Mich
233; 253 NW2d 633 (1977); Calabrese v Tendercare of Mich, Inc, 262
Mich App 256, 266; 685 NW2d 313 (2004); Sargent v Browning-Ferris
Indus, 167 Mich App 29, 33-36; 421 NW2d 563 (1988); Bescoe v Laborers’
Union Local No 334, 98 Mich App 389, 395-409; 295 NW2d 892 (1980).
See also Town & Country Motors, Inc v Local Union No 328, 355 Mich
26; 94 NW2d 442 (1959) (holding before Garmon was decided that the
circuit court had no jurisdiction over the case because the NLRA
preempted the area of labor law at issue).
4
The same analysis applies to other “choice-of-forum” federal-
preemption cases. In Ass’n of Businesses Advocating Tariff Equity v Pub
2020] FOSTER V FOSTER 185
CONCURRING OPINION BY VIVIANO, J.

Defendant also cites Ryan v Brunswick Corp, 454

Mich 20, 40; 557 NW2d 541 (1997), in which after
finding that plaintiff’s common-law products-liability
claims were preempted under the Federal Boat Safety
Act (FBSA), 46 USC 4301 et seq., this Court held that
“summary disposition pursuant to MCR 2.116(C)(4)
and (C)(8) was proper.”5 In reciting the applicable legal
Serv Comm, 192 Mich App 19, 24; 480 NW2d 585 (1992), the Court of
Appeals held that “the issue of federal preemption is one of jurisdiction,
and questions of subject-matter jurisdiction can be raised at any time,
even if not raised before the appeal is taken.” (Citation omitted.)
However, as in Henry, this broad assertion was made in the context of a
choice-of-forum preemption question, i.e., whether the Public Service
Commission lacked jurisdiction to disallow recovery of costs approved by
the Federal Energy Regulatory Commission (FERC) under the Natural
Gas Act, 15 USC 717 et seq., which gives exclusive authority to FERC to
set interstate natural gas rates. See also Mississippi Power & Light Co
v Mississippi ex rel Moore, 487 US 354, 377; 108 S Ct 2428; 101 L Ed 2d
322 (1988) (Scalia, J., concurring) (“It is common ground that if FERC
has jurisdiction over a subject, the States cannot have jurisdiction over
the same subject.”).
5
After finding that the plaintiff’s tort claim was preempted by federal
law, the trial court explained its ruling as follows:
[T]he Court necessarily lacks jurisdiction to hear this matter and,
accordingly, partial summary disposition is appropriate under
(C)(4) for the lack of subject matter jurisdiction, and also as I
think correctly argued by the defendant, it fails to state a claim
upon which relief can be granted because the failure to equip its
product with a propeller guard or to warn of its absence is
something that the manufacturer of an outboard or inboard
outdrive boat propulsion unit cannot be held liable for. Since that
is the case, I grant the defendant’s motion for partial summary
disposition under both (C)(4) and (C)(8) for those reasons I’ve
indicated. [Id. at 22 n 3 (quotation marks omitted).]
The Court of Appeals affirmed on both grounds, Ryan v Brunswick Corp,
209 Mich App 519, 526; 531 NW2d 793 (1995), and, as mentioned above,
so did this Court. Since the referenced court rules provide alternate
grounds for summary disposition (under (C)(4) for lack of subject-matter
jurisdiction and under (C)(8) for failure to state a claim on which relief
can be granted), it is unclear which of these holdings is precedentially
binding. The ambiguity in the Court’s holding can perhaps best be
186 505 MICH 151 [Apr
CONCURRING OPINION BY VIVIANO, J.

principles, the Court stated that “[w]here the prin-

ciples of federal preemption apply, state courts
are deprived of subject matter jurisdiction.” Id. at 27.
However, the Court did not cite any authority whatso-
ever for this assertion. Nor did we address whether
Congress had designated a federal forum for resolution
of these types of disputes. And, in any event, our
preemption holding in Ryan was abrogated by
Sprietsma v Mercury Marine, 537 US 51; 123 S Ct 518;
154 L Ed 2d 466 (2002), which held that the FBSA does
not expressly or implicitly preempt state common-law
claims. In light of the ambiguous nature of our holding
(noted above), the lack of authority for it, and its
abrogation by the United States Supreme Court, I do
not think the jurisdictional assertion in Ryan carries
much precedential weight.6 Finally, and perhaps most
explained by the fact that the Court did not need to focus on whether the
preemption at issue was jurisdictional—for example, to decide if pre-
emption could be raised for the first time on appeal or in a collateral
attack on a final judgment. Thus, to the extent that the Court erred by
affirming summary disposition under (C)(4)—which, in the absence of
an exclusive federal forum for resolution of claims under the FBSA,
seems apparent—it was only a labeling error since dismissal under
(C)(8) was the proper way to dispose of the case after finding the type of
preemption at issue.
6
The broad assertion from Ryan—that “[w]here the principles of
federal preemption apply, state courts are deprived of subject matter
jurisdiction”—has been cited on a number of occasions. In two cases, the
Court of Appeals cited Ryan but found no preemption and thus did not
need to apply Ryan’s broad assertion. See, e.g., People v Kanaan, 278
Mich App 594; 751 NW2d 57 (2008) (holding that 42 USC 1320a-7b does
not preempt the Medicaid False Claim Act, MCL 400.601 et seq.);
Konynenbelt v Flagstar Bank FSB, 242 Mich App 21; 617 NW2d 706
(2000) (holding that the plaintiff’s state-law claims were not preempted
by the Home Owners’ Loan Act, 12 USC 1461 et seq., or the Depository
Institutions Deregulation and Monetary Control Act, 12 USC 1735f-7a).
In a third case, the Court of Appeals cited Ryan and found preemption
but remanded to the trial court for entry of summary disposition in favor
of the defendant without specifying whether the dismissal was for lack
2020] FOSTER V FOSTER 187
CONCURRING OPINION BY VIVIANO, J.

significantly, such a broad reading of this one state-

ment in Ryan would conflict with the holding and basic
jurisdictional principles set forth in Office Planning
Group and other cases finding that our state courts
have concurrent jurisdiction over certain claims gov-
erned by federal law.7 It would also leave Michigan
of subject-matter jurisdiction. See Martinez v Ford Motor Co, 224 Mich
App 247; 568 NW2d 396 (1997) (holding that the plaintiff’s state-law
tort claim was preempted by the National Motor Vehicle Safety Act, 15
USC 1381 et seq.).
But in Packowski v United Food & Commercial Workers Local 951,
289 Mich App 132; 796 NW2d 94 (2010), citing Ryan, the Court of
Appeals affirmed the circuit court’s order granting summary disposition
for defendant under MCR 2.116(C)(4) on the ground that it lacked
subject-matter jurisdiction over the claim. In that case, the Court of
Appeals determined that the trial court correctly held that it lacked
subject-matter jurisdiction over plaintiff’s wrongful-discharge claim
since it was preempted by the Labor-Management Reporting and
Disclosure Act, 29 USC 401 et seq. Id. at 149. But the Court of Appeals
did not ground its holding on a designation by Congress of an alternate
federal forum for resolution of these types of disputes. Moreover, it is not
entirely clear on which basis the circuit court granted summary dispo-
sition, since defendant’s motions were brought under MCR 2.116(C)(4),
(C)(8), and (C)(10), and since on reconsideration, the trial court clarified
that “summary disposition of plaintiff’s claim had been granted under
the substantive-preemption doctrine, not the jurisdictional-preemption
doctrine.” Id. at 138. Finally, although the Court of Appeals noted that
Ryan had been “overruled in part on other grounds,” id. at 140, the
majority did not discuss whether the broad assertion from Ryan re-
mained good law once its operative preemption holding was abrogated
by the United States Supreme Court. Like in Ryan, the ambiguity in the
Court’s holding in Packowski is perhaps best thought of as a labeling
error since the Court did not need to focus on the issue of whether the
preemption at issue was jurisdictional—for example, to decide if pre-
emption could be raised for the first time on appeal or in a collateral
attack on a final judgment.
7
See, e.g., Arbuckle v Gen Motors LLC, 499 Mich 521, 533-534; 885
NW2d 232 (2016) (holding that since state courts have concurrent
jurisdiction over cases involving collective-bargaining agreements un-
der § 301(a) of the Labor Management Relations Act, 29 USC 185(a), a
state court had jurisdiction to decide the merits of the case even though
188 505 MICH 151 [Apr
CONCURRING OPINION BY VIVIANO, J.

citizens without any forum to enforce federal laws

when Congress has conferred exclusive jurisdiction
upon state courts to enforce them.8
Thus, contrary to the sweeping assertions in defen-
dant’s brief, not all federal preemption deprives state
courts of subject-matter jurisdiction. Instead, state
courts are only deprived of jurisdiction when Congress
has designated a federal forum for resolution of the
class of disputes at issue. Although two of our cases
might have caused some confusion on this point, I do
not believe that they may fairly be read as supporting
the demonstrably incorrect proposition of law for
which defendant cites them.

III. FOLLOWING UNITED STATES SUPREME COURT PRECEDENT,

A MAJORITY OF OUR SISTER STATE COURTS HAVE HELD
THAT FEDERAL LAW DOES NOT DEPRIVE STATE COURTS
OF SUBJECT-MATTER JURISDICTION OVER THE TYPE OF
VETERANS’ AND MILITARY DISABILITY BENEFITS
AT ISSUE IN THIS CASE

As the majority notes, in McCarty v McCarty,

the United States Supreme Court held that “upon
the dissolution of a marriage, federal law precludes a
state court from dividing military nondisability retired
pay pursuant to state community property laws.”
McCarty v McCarty, 453 US 210, 211; 101 S Ct 2728; 69
L Ed 2d 589 (1981). In response, Congress passed the
Uniformed Services Former Spouses’ Protection Act
§ 301 preempts state substantive law); Betty v Brooks & Perkins, 446
Mich 270, 287 n 21; 521 NW2d 518 (1994) (same); Flanagan v Comau
Pico, 274 Mich App 418, 429-431; 733 NW2d 430 (2007) (same); Local
495 UAW v Diecast Corp, 52 Mich App 372, 377-379; 217 NW2d 424
(1974) (same). See also In re Lager Estate, 286 Mich App 158, 164; 779
NW2d 310 (2009) (noting that “federal courts generally have subject-
matter jurisdiction over ERISA claims” but that state courts have
concurrent jurisdiction over claims brought by a beneficiary to recover
benefits due under a personal savings plan).
8
See, e.g., Wade v Blue, 369 F3d 407, 410 (CA 4, 2004).
2020] FOSTER V FOSTER 189
CONCURRING OPINION BY VIVIANO, J.

(USFSPA), 10 USC 1408, which permits state courts to

treat veterans’ “disposable retired pay” as divisible
property during divorce proceedings. 10 USC 1408(c).
In Mansell v Mansell, 490 US 581; 109 S Ct 2023;
104 L Ed 2d 675 (1989), the United States Supreme
Court addressed whether the USFSPA allows state
courts to treat retirement pay waived by a retired
service member in order to receive disability benefits
as property divisible upon divorce. The Court rejected
the civilian spouse’s argument that the USFSPA was
intended to broadly reject McCarty and completely
restore to state courts the authority they had prior to
McCarty. Id. at 588, 593-594. Instead, the majority
found that the USFSPA only partially superseded
McCarty, holding that “the Former Spouses’ Protection
Act does not grant state courts the power to treat as
property divisible upon divorce military retirement
pay that has been waived to receive veterans’ disability
benefits.” Id. at 594-595. Importantly, in a footnote, the
Mansell Court discussed the state court’s application of
the doctrine of res judicata:
In a supplemental brief, Mrs. Mansell argues that the
doctrine of res judicata should have prevented this pre-
McCarty property settlement from being reopened. McCa-
rty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d
589 (1981). The California Court of Appeal, however, de-
cided that it was appropriate, under California law, to
reopen the settlement and reach the federal question. 5 Civ.
No. F002872 (Jan. 30, 1987). Whether the doctrine of res
judicata, as applied in California, should have barred the
reopening of pre-McCarty settlements is a matter of state
law over which we have no jurisdiction. The federal ques-
tion is therefore properly before us. [Mansell, 490 US at 586
n 5.]

On remand in Mansell, the California Court of Appeal

rejected the veteran spouse’s argument that the “judg-
190 505 MICH 151 [Apr
CONCURRING OPINION BY VIVIANO, J.

ment was void for want of subject matter jurisdiction.”

In re Marriage of Mansell, 217 Cal App 3d 219, 227; 265
Cal Rptr 227 (1989). The California Court of Appeal
characterized the McCarty holding as merely “that state
courts were bound to apply federal law in determining
the character of military pension benefits. There was no
divestiture of jurisdiction.” Id. at 228. The United States
Supreme Court subsequently denied the petition for
certiorari. Mansell v Mansell, 498 US 806 (1990).
One prominent commentator describes the denial of
the second petition for certiorari as “one of the most
important facts in all of the Mansell litigation,” ex-
plaining as follows:
It shows that footnote 5 in the Mansell opinion is more
than mere words. The Court did not merely state in the
abstract that division of military benefits under state law
principles of res judicata was outside the scope of federal
appellate jurisdiction; it refused to reverse or even review
on the merits a state court decision applying those prin-
ciples. It reached this result even though the net effect of
the second California decision was to reach (under a
different supporting theory) the exact same end result as
the first California decision—a decision which the Su-
preme Court had reversed in a published decision. To-
gether with footnote 5 in the published opinion, the
Court’s denial of review is a very strong statement that
division of military benefits on a theory of res judicata is
not prohibited by federal law.

* * *

If McCarty and Mansell did involve subject matter

jurisdiction, the husband in Mansell would have been
right; the original order dividing benefits outside the scope
of the USFSPA would have been void. The Supreme
Court’s unanimous refusal to hear the case a second time,
and its sudden acquiescence in a result which it had so
recently reversed, combined with the language of footnote
2020] FOSTER V FOSTER 191
CONCURRING OPINION BY VIVIANO, J.

5 of the published opinion, suggest strongly that the

Supreme Court agreed with the courts of California.
McCarty and Mansell state a rule of substantive federal
law, and not a rule of subject matter jurisdiction. [2
Turner, Equitable Distribution of Property (4th ed), § 6:6,
pp 54-55.][9]

Shortly after McCarty was decided, the United

States Supreme Court was presented with an issue
similar to that in the present case. In In re Marriage of
Sheldon, the California Court of Appeal declined to
apply McCarty retroactively. In re Marriage of
Sheldon, 124 Cal App 3d 371, 376-384; 177 Cal Rptr
380 (1981). The military spouse filed a petition for
certiorari. See Sheldon v Sheldon, 456 US 941 (1982).
Specifically, one of the issues raised was:
Does federal preemption of state community property
laws regarding division of military retirement pay render
state judgments void for lack of subject matter jurisdiction
where such judgments were entered after Congress had
preempted area of law? [Turner, § 6:6, p 49.]

The United States Supreme Court dismissed the

appeal “for want of a substantial federal question.”
Sheldon, 456 US at 941. Unlike denial of a petition for
certiorari, “[a] dismissal for want of a substantial

9
See also Turner, State Court Treatment of Military and Veteran’s
Disability Benefits: A 2004 Update, 16 Divorce Litig 76, 80 (2004)
(“Because Mansell ultimately permitted the division of the benefits at
issue, it is clearly wrong to hold, as a few decisions have held, that
federal law deprives state courts of subject-matter jurisdiction over
veteran’s and military disability benefits. Mansell is not a rule of
subject-matter jurisdiction; rather, it is a rule of substantive law.
When no prior order and no prior agreement exists, federal law
requires that disability benefits be awarded to the owning spouse, and
it preempts any state law to the contrary. When a prior order exists,
however, federal law permits state courts to divide military and
veteran’s disability benefits, as they were actually divided in the
Mansell litigation.”).
192 505 MICH 151 [Apr
CONCURRING OPINION BY VIVIANO, J.

federal question is an adjudication on the merits, and

it carries the same precedential value as a full opin-
ion.” Turner, § 6:6, p 49, citing Hicks v Miranda, 422
US 332, 344; 95 S Ct 2281; 45 L Ed 2d 223 (1975)
(emphasis omitted).10 Therefore, according to the au-
thor, Sheldon “establish[es] that the ruling in McCarty
does not apply retroactively and that decisions which
erroneously divide preempted benefits are not void for
lack of subject matter jurisdiction.” Turner, § 6:6, p 49
(emphasis omitted).
As the author explains, because McCarty is not
retroactive and thus does not void final state court
orders, military benefits can be divided by state courts
under the law of res judicata:
Initial division of military benefits must be made under
federal substantive law, which requires that the benefits be
awarded only to the service member and not to the former
spouse. If the service member requests that the state court
apply federal substantive law, and the state court instead
applies state substantive law, McCarty requires that the
state court decision be reversed. But if the service member
never raises the issue—if he or she allows the state court to
enter an erroneous order dividing military benefits under
state substantive law, as happened in most of the pre-
McCarty cases—Sheldon recognizes that McCarty does not
support reversal of the state court judgment. Federal sub-
stantive law controls the issue, but under either federal or
state procedural rules, a decision which is based upon the
wrong substantive law cannot be collaterally attacked after
it becomes final. [Id. at 50.]

The author notes that “[a] strong majority of state

courts have recognized, often in reliance upon postre-
mand history of Mansell, that the doctrine of McCarty
and Mansell is a rule of federal substantive law only.”

10
See also White v White, 731 F2d 1440, 1443 (CA 9, 1984); Evans v
Evans, 75 Md App 364, 374; 541 A2d 648 (1988).
2020] FOSTER V FOSTER 193
CONCURRING OPINION BY VIVIANO, J.

Id. at 55.11 And, perhaps of even more relevance here,

“[a] strong majority of state court cases likewise hold
that military benefits of all sorts can be divided under
the law of res judicata.” Id. at § 6:9, p 72.12 The issue of
res judicata was not presented in Howell v Howell, 581
US ___; 137 S Ct 1400; 197 L Ed 2d 781 (2017), and
therefore, Howell does not appear to provide any
guidance on this issue.13

11
See id. at n 24 (listing cases). The author also notes that “[a]
minority of state courts persist in holding to the contrary.” Id. at 55. See
also id. at n 25 (listing cases).
12
See id. at 72-73 n 4 (listing cases). Again, the author notes that a
minority of state courts hold to the contrary. See id. at 74 n 9 (listing
cases) and text accompanying. However, he observes that “[n]one of these
decisions cite either Sheldon or footnote 5 in Mansell,” and “[n]one have
showed any awareness of the postremand history of Mansell[.]” Id. at 74.
13
See Turner, § 6:9, p 72 (“The issue of res judicata was not presented
on the facts in the most recent Supreme Court decision on division of
military service benefits, Howell v. Howell. The author sees nothing in
that decision which questions the strong statement in footnote 5 of
Mansell that division of military benefits under the law of res judicata
would not violate federal law.”) (citation omitted). The subsequent
orders from the United States Supreme Court vacating two state court
decisions for further consideration in light of Howell also do not shed
any further light on this issue. In Merrill v Merrill, 238 Ariz 467, 468;
362 P3d 1034 (2015), vacated 581 US ___; 137 S Ct 2156 (2017), the
original divorce judgment split only the veteran spouse’s retirement pay,
and the non-veteran spouse petitioned for an award in the amount of the
reduced share once the veteran spouse started receiving combat-related
special compensation. In In re Marriage of Cassinelli, 4 Cal App 5th
1285, 1292; 210 Cal Rptr 3d 311 (2016), vacated sub nom Cassinelli v
Cassinelli, 583 US ___; 138 S Ct 69 (2017), the non-veteran spouse had
“filed a motion to modify the judgment by ordering [the veteran spouse]
to pay the amount of her share of his retired pay as ‘non-modifiable
spousal support.’ ” In other words, both cases involved a later attempt to
modify a divorce judgment, not a situation like the present case, in
which a provision in the original divorce judgment violated federal law
but was not challenged on direct appeal and instead was challenged
later in response to a motion to hold the veteran-spouse in contempt for
failing to comply with that judgment.
194 505 MICH 151 [Apr
CONCURRING OPINION BY VIVIANO, J.

One case exemplifies the difficulty our courts have

had in applying the law in this complex area.14 In
Biondo v Biondo, 291 Mich App 720; 809 NW2d 397
(2011), the Court of Appeals allowed the defendant to
challenge enforcement of the Social Security equaliza-
tion provision in his divorce judgment on federal-
preemption grounds, even though it rejected his claim
—similar to the one appellant is making here—that 42
USC 407 of the Social Security Act, 42 USC 301 et seq.,
divests the state courts of subject-matter jurisdiction
in divorce cases. The Court stated as follows:
In reaching this conclusion, we specifically reject James
Biondo’s suggestion that the circuit court did not possess
subject-matter jurisdiction to enter the terms of the par-
ties’ consent judgment of divorce. That federal law has
preempted a portion of the parties’ consent judgment of
divorce in no manner deprives the circuit court of subject-
matter jurisdiction in this divorce matter. The Social
Security Act simply does not divest state courts of subject-
matter jurisdiction in divorce cases. Rather, the Su-
premacy Clause preempts state laws regarding the divi-
sion of marital property only to the extent they are
inconsistent with 42 USC 407(a). The Michigan Supreme
Court has explained this distinction as follows:
The loose practice has grown up, even in some
opinions, of saying that a court had no “jurisdiction”
to take certain legal action when what is actually
meant is that the court had no legal “right” to take
the action, that it was in error. If the loose meaning
were correct it would reduce the doctrine of res
judicata to a shambles and provoke endless litigation,
since any decree or judgment of an erring tribunal
would be a mere nullity. [Buczkowski v Buczkowski,
351 Mich 216, 222; 88 NW2d 416 (1958).]

14
See Turner, § 6:2, p 4 (boldly asserting that “[t]he complexity of
classifying, valuing, and dividing [retirement] plans is unmatched by
any other issue in any area of modern law”).
2020] FOSTER V FOSTER 195
CONCURRING OPINION BY VIVIANO, J.

Although the circuit court erred by ordering the social

security equalization, it did not exceed its subject-matter
jurisdiction in doing so. Const 1963, art 6, § 13; MCL
552.6(1). [Biondo, 291 Mich App at 727-728.]

Apparently not recognizing the finality implications

of its finding that the trial court had subject-matter
jurisdiction to enter the parties’ divorce judgment, the
Court held that, on remand, the circuit court could
modify the property-settlement provisions of the di-
vorce judgment on the ground that inclusion of the
Social Security equalization provision was a mutual
mistake. However, the court did not cite or discuss the
applicability of MCR 2.612, the court rule that governs
requests for relief from a final judgment, or explain
why, if that rule was applicable, the one-year limita-
tions period for requests on the ground of mistake did
not apply. See MCR 2.612(C)(1)(a) and (C)(2). Nor did
the Court discuss Sheldon, footnote 5 in Mansell, or the
other authorities noted above holding that federal
retirement benefits may be divided on a theory of res
judicata.

IV. CONCLUSION

Contrary to defendant’s sweeping assertion, it is

clear that not all federal preemption deprives state
courts of subject-matter jurisdiction. On remand, the
Court of Appeals will have an opportunity to address
whether the particular type of preemption at issue in
this case is jurisdictional. The purpose of my concur-
rence is to properly frame the inquiry, to clarify our
caselaw, and to point to some of the pertinent authori-
ties that may aid the Court of Appeals in resolving
this complex and jurisprudentially significant issue.
196 505 MICH 196 [Apr

PEOPLE v WARREN

Docket No. 158065. Argued on application for leave to appeal

November 6, 2019. Decided April 29, 2020.
Kelly Warren pleaded guilty in the Mecosta Circuit Court to two
separate charges of operating a vehicle while intoxicated, third
offense (OWI-3rd), MCL 257.625, in exchange for the dismissal of
other criminal charges against him and of the sentence enhance-
ment to which he was subject as a fourth-offense habitual offender,
MCL 769.12(1)(b). At the plea hearing, the trial court, Peter M.
Jaklevic, J., noted on the record that each charge carried with it a
maximum penalty of five years’ imprisonment, but the court did
not inform defendant that it had the discretionary authority to
sentence him to consecutive sentences under MCL 768.7b(2)(a)
because he had committed the second OWI-3rd charge while the
first OWI-3rd charge was pending. The trial court ultimately
sentenced defendant to consecutive prison terms of 2 to 5 years,
which subjected defendant to a maximum of 10 years’ imprison-
ment. Defendant filed a timely motion to withdraw his plea on the
basis of the court’s failure to advise him of the possibility of
consecutive sentencing. The trial court denied the motion, and the
Court of Appeals denied defendant’s delayed application for leave
to appeal. The Supreme Court then remanded the case to the Court
of Appeals for consideration as on leave granted with directions to
compare People v Johnson, 413 Mich 487 (1982)—which held that
the former court rule governing pleas, GCR 1963, 785.7, did not
require the trial court to advise a defendant of potential sentence
consequences such as consecutive sentencing—with People v
Blanton, 317 Mich App 107 (2016), which held that the trial court
was required to inform the defendant that he was subject to a
two-year mandatory consecutive sentence for possessing a firearm
during the commission of a felony (felony-firearm). 500 Mich 1056
(2017). On remand, the Court of Appeals, M. J. KELLY and CAMERON,
JJ. (GLEICHER, P.J., dissenting), affirmed defendant’s convictions
and sentences in an unpublished per curiam opinion issued
May 17, 2018 (Docket No. 333997). The majority concluded that
Michigan caselaw, including Johnson and Blanton, was not dis-
positive of the issue and that neither the Michigan Court Rules nor
due process required the court to inform defendant that it had the
2020] PEOPLE V WARREN 197

discretion to impose consecutive sentences. Defendant sought

leave to appeal in the Supreme Court, which ordered and heard
oral argument on whether to grant the application or take other
action. 503 Mich 988 (2019).
In an opinion by Justice MARKMAN, joined by Chief Justice
MCCORMACK and Justices BERNSTEIN, CLEMENT, and CAVANAGH, the
Supreme Court, in lieu of granting leave to appeal, held:
MCR 6.302(B)(2) requires a trial court, in cases in which such
advice is relevant, to advise a defendant of its discretionary
consecutive-sentencing authority and the possible consequences
of that authority for the defendant’s sentence, because this
authority clearly affects the defendant’s “maximum possible
prison sentence for the offense.” The trial court in this case erred
when it denied defendant’s motion to withdraw his plea because
the court failed to apprise defendant of this authority and its
possible consequences for his sentence.
1. MCR 6.302(A) provides that a trial court may not accept a
plea of guilty or nolo contendere unless it is convinced that the
plea is understanding, voluntary, and accurate. To ensure that a
defendant understands the consequences of his or her plea, MCR
6.302(B)(2) requires the trial court to advise the defendant of the
maximum possible prison sentence for the offense and any
mandatory minimum sentence required by law.
2. The Court of Appeals correctly concluded that no Michigan
caselaw had resolved whether MCR 6.302(B)(2) requires courts to
inform defendants of discretionary consecutive-sentencing au-
thority before accepting a guilty or no-contest plea. Although
Johnson observed that the prior version of MCR 6.302 did not
require trial courts to inform defendants of potential sentence
consequences such as consecutive sentencing, that statement was
dictum. And while Blanton held that trial courts must inform a
defendant pleading guilty to felony-firearm that the sentence
would include a mandatory two-year term of imprisonment that
would be served before the sentences for the underlying substan-
tive offenses, which would be served consecutively to the felony-
firearm sentence, this holding was based on the “mandatory
minimum sentence” language of MCR 6.302(B)(2) and not the
“maximum possible prison sentence” language of the rule, and
therefore it was also not dispositive of the issue in this case.
3. The phrase “maximum possible prison sentence” within
MCR 6.302(B)(2) is not defined by the court rules. Considering
the dictionary definitions of “maximum” and “possible,” MCR
6.302(B)(2) requires advising defendants of the maximum allow-
able prison sentence under the law, as well as under the particu-
198 505 MICH 196 [Apr

lar circumstances of the case, whether that is the actual sentence

that eventually transpires. The modifying phrase “for the offense”
does not indicate that a court must only advise defendants of the
maximum possible prison sentence for each separate or discrete
offense because the “maximum possible prison sentence for the
offense” is additionally and materially affected by the possibility
of consecutive sentencing; therefore, defendants must be facili-
tated in fully understanding the potential consequences of the
trial court’s discretionary consecutive-sentencing authority. In
this case, the trial court’s authority to impose a consecutive
sentence derived from MCL 768.7b, which effectively constitutes
an enhanced punishment designed to deter persons from commit-
ting additional crimes while other charges are already pending by
postponing the moment at which sentencing for one or more
subsequent offenses will commence and thereby increasing the
total duration of potential incarceration. Thus, the fact of con-
secutive sentencing constitutes highly relevant information that
directly implicates the “maximum possible prison sentence for the
offense” under MCR 6.302(B)(2). Further, MCR 1.107 provides
that words used in the singular also apply to the plural, where
appropriate. Accordingly, MCR 6.302(B)(2) is reasonably read as
requiring trial courts to inform defendants of “the maximum
possible prison sentence for the offenses.” Therefore, when a trial
court advises a defendant of his or her “maximum possible prison
sentence,” this must encompass not only the “maximum possible
prison sentence” for each individual “offense,” but also the “maxi-
mum possible prison sentence” for the conviction of “offenses”
specifically as to which the trial court possesses an authority to
impose consecutive sentences. Defendant was instructed that
each OWI-3rd conviction carried a five-year maximum term of
imprisonment, which, if imposed concurrently, would amount to a
maximum possible sentence of five years’ imprisonment. How-
ever, because of the trial court’s discretionary consecutive-
sentencing authority, defendant actually faced, and received, a
maximum possible sentence of 10 years’ imprisonment. This was
the “maximum possible prison sentence for the offenses” under
the most reasonable understanding of MCR 6.302(B)(2). Reading
the word “sentence” in the plural, as well as the word “offense,”
would have led to the same conclusion, because where “sentences”
are imposed, the possibility of a consecutive sentence becomes a
possibility affecting the defendant’s “maximum possible prison
sentence” on such multiple “sentences.” The Court’s interpreta-
tion of MCR 6.302(B)(2) was also consistent with People v Brown,
492 Mich 684 (2012), which held that even though MCR 6.302(B)
did not expressly require trial courts to advise defendants of
2020] PEOPLE V WARREN 199

habitual-offender enhancements, MCR 6.302(B)(2) nonetheless

required courts to advise of the maximum possible prison sen-
tence with the habitual-offender enhancement because the en-
hanced maximum became the maximum possible prison sentence
for the principal offense.
Reversed and remanded for further proceedings.
Justice ZAHRA, joined by Justice VIVIANO, dissenting, stated
that the plain language of MCR 6.302(B) does not require trial
courts to calculate a defendant’s potential aggregate maximum
possible prison sentence resulting from the imposition of consecu-
tive sentences and that there was nothing in the court rule to
suggest that “sentence” should be read as “aggregate sentence.”
While he agreed that Michigan caselaw had not resolved this
issue, he noted that persuasive federal caselaw interpreting the
analogous federal rule, which is broader in scope than MCR
6.302(B), held that informing a defendant of mandatory consecu-
tive sentencing was not required. He also disagreed with the
majority’s application of the number canon of construction to
MCR 6.302(B), noting that a consistent application would have
required only that defendant be advised of the maximum possible
prison sentence for each of the two offenses to which he pleaded
guilty, which the trial court did. Justice ZAHRA further observed
that the Supreme Court had previously considered and rejected
proposals to expressly require by court rule that trial courts
advise a defendant about the possibility of consecutive sentenc-
ing. He would have held that the possibility of consecutive
sentences pursuant to MCL 768.7b was a collateral rather than a
direct consequence of defendant’s guilty pleas because the trial
court had discretion whether to impose consecutive sentences and
that due process therefore did not require that the trial court
inform defendant that he was subject to consecutive sentencing.

CRIMINAL LAW — PLEAS — UNDERSTANDING PLEAS — POSSIBILITY OF CONSECUTIVE

SENTENCES.
MCR 6.302(B)(2) requires a trial court, in cases in which such
advice is relevant, to advise a defendant of its discretionary
consecutive-sentencing authority and the possible consequences
of that authority for the defendant’s sentence before accepting a
plea of guilty or nolo contendere.

Dana Nessel, Attorney General, Fadwa A.

Hammoud, Solicitor General, B. Eric Restuccia, Deputy
Solicitor General, and David Porter, Assistant Attorney
General, for the people.
200 505 MICH 196 [Apr
OPINION OF THE COURT

North Coast Legal, PLC (by Michael C. Naughton)

for defendant.

Amici Curiae:

Anne Yantus for the Criminal Defense Attorneys of

Michigan.

D. J. Hilson, Kym L. Worthy, Jason W. Williams, and

Timothy A. Baughman for the Prosecuting Attorneys
Association of Michigan.

Dana Nessel, Fadwa A. Hammoud, Christopher M.

Allen, and Ann M. Sherman for the Attorney General.

MARKMAN, J. At issue is whether, prior to accepting a

guilty or no-contest plea, the trial court, in cases in
which such advice is relevant, is required to advise a
defendant that the court possesses discretionary
consecutive-sentencing authority and to apprise the
defendant as to the potential consequences of that
authority for his or her sentence. We conclude that the
trial court is required to do so under MCR 6.302(B)(2).
As a result, the trial court here erred when it denied
defendant’s motion to withdraw his plea because the
court failed to apprise him of both this authority and
its potential consequences. We therefore reverse the
judgment of the Court of Appeals and remand to the
trial court to allow defendant to either withdraw his
guilty plea or to reaffirm this plea. See People v Brown,
492 Mich 684, 702; 822 NW2d 208 (2012).

I. FACTS & HISTORY

In November 2014, defendant drove while intoxi-

cated and then did so again the following summer
while on bond for the first crime. In each case, he was
2020] PEOPLE V WARREN 201
OPINION OF THE COURT

charged, among other crimes, with operating a vehicle

while intoxicated, third offense (OWI-3rd), MCL
257.625, and the prosecutor provided notice that defen-
dant was subject to a sentence enhancement as a
fourth-offense habitual offender, MCL 769.12(1)(b). De-
fendant agreed to plead guilty to one count of OWI-3rd
in each case in exchange for dismissal of the remaining
charges and the habitual-offender enhancement. At the
plea hearing, after the prosecutor informed the trial
court of the agreement, the court asked the following:
The Court: All right. And each of the charges carries
with it, absent the habitual, a five year maximum charge;
is that correct, folks?
[Prosecutor]: Yes.
[Defense Counsel]: Yes.

Thereafter, the court questioned defendant to ensure

that his plea was understanding, voluntary, and accu-
rate under MCR 6.302. Yet at no point did the court
inform defendant that it possessed the discretionary
authority to sentence him to consecutive sentences
because he had committed a felony (the second OWI-3rd
charge) while disposition of another felony (the first
OWI-3rd charge) had been pending. MCL 768.7b(2)(a).
The trial court ultimately sentenced defendant to
consecutive prison terms of 2 to 5 years. Because these
sentences were to be served consecutively, defendant
was subject to a maximum of 10 years’ imprisonment,
twice the maximum of 5 years’ imprisonment had the
sentences been imposed concurrently. Defendant filed
a timely motion to withdraw his plea based upon the
court’s failure to have advised him of the possibility of
consecutive sentencing. The trial court denied this
motion and the Court of Appeals denied leave to
appeal. This Court then remanded to the Court of
202 505 MICH 196 [Apr
OPINION OF THE COURT

Appeals for consideration as on leave granted with

directions to compare People v Johnson, 413 Mich 487,
490; 320 NW2d 876 (1982) (holding that the former
court rule governing pleas, GCR 1963, 785.7, did not
“require advice as to other potential sentence conse-
quences such as consecutive sentencing”) with People v
Blanton, 317 Mich App 107, 119-120; 894 NW2d 613
(2016) (holding that the court was required to inform
the defendant that he was subject to a two-year man-
datory consecutive sentence for possessing a firearm
during the commission of a felony, or “felony-firearm”).
People v Warren, 500 Mich 1056 (2017).
In a split decision, the Court of Appeals affirmed
defendant’s convictions and sentences. People v
Warren, unpublished per curiam opinion of the Court
of Appeals, issued May 17, 2018 (Docket No. 333997).
The majority concluded that Michigan caselaw, in-
cluding Johnson and Blanton, was not dispositive of
the issue and that neither the Michigan Court Rules
nor due process required the court to inform defen-
dant that it possessed the discretion to impose con-
secutive sentences. Id. at 2-5. The dissent would have
held that “a possible consecutive sentence is a fact as
important as the maximum penalty for each charge,
and therefore an integral component of a voluntary
and understanding plea.” Id. at 1 (GLEICHER, J., dis-
senting). Defendant sought leave to appeal in this
Court and we heard oral argument on the applica-
tion.1

1
According to the Offender Tracking Information System maintained
by the Michigan Department of Corrections (MDOC), defendant was
paroled on January 7, 2020, after serving four years of his sentence.
However, because defendant is challenging his underlying conviction,
his parole does not affect our ability to decide the merits of this case and
afford a remedy for any alleged error. Additionally, defendant is under
the supervision of MDOC until January 2021 and any parole violation
could result in the revocation of his parole, which would then subject
2020] PEOPLE V WARREN 203
OPINION OF THE COURT
II. STANDARD OF REVIEW

“This Court reviews for an abuse of discretion a trial

court’s ruling on a motion to withdraw a plea.” Brown,
492 Mich at 688. An abuse of discretion occurs when
the decision falls outside the range of principled out-
comes. Woodard v Custer, 476 Mich 545, 557; 719
NW2d 842 (2006). The interpretation of court rules is
reviewed de novo. People v Lee, 489 Mich 289, 295; 803
NW2d 165 (2011).

III. ANALYSIS

A defendant has the “right to withdraw any plea

until the court accepts it on the record.” MCR 6.310(A).
Once the trial court has accepted the plea, there is no
longer any absolute right to withdraw the plea. People
v Gomer, 206 Mich App 55, 56; 520 NW2d 360 (1994).
Following sentencing, a trial court may withdraw a
guilty plea if “there was an error in the plea proceeding
that would entitle the defendant to have the plea set
aside . . . .” MCR 6.310(C)(4). In other words, “[a] de-
fendant seeking to withdraw his or her plea after
sentencing must demonstrate a defect in the plea-
taking process.” Brown, 492 Mich at 693. Thus, the
issue here is whether the trial court’s failure to inform
defendant of the possibility of consecutive sentences
constitutes a sufficient defect in the plea-taking pro-
cess to require judicial relief. To determine whether
him to the remainder of his term of imprisonment. “An issue is moot
when an event occurs that renders it impossible for the reviewing court
to fashion a remedy to the controversy.” People v Cathey, 261 Mich App
506, 510; 681 NW2d 661 (2004). But an issue is not moot “if it will
continue to affect a party in some collateral way.” Id. Because defendant
here is challenging his conviction and remains subject to the supervision
of MDOC, the instant issue is not moot, and we will decide its merits
despite the fact that defendant has recently been paroled.
204 505 MICH 196 [Apr
OPINION OF THE COURT

there is such a defect, we must first give meaning to

the relevant court rule, MCR 6.302.
“The court may not accept a plea of guilty or nolo
contendere unless it is convinced that the plea is under-
standing, voluntary, and accurate.” MCR 6.302(A).
“[T]his requires a defendant to be informed of the
consequences of his or her plea and, necessarily, the
resultant sentence.” Brown, 492 Mich at 693 (quotation
marks and citation omitted). To ensure that a defen-
dant’s plea satisfies these requirements, the trial court,
before accepting such a plea, “must place the defendant
or defendants under oath and personally carry out
subrules (B)–(E).” MCR 6.302(A). Specifically relevant
to the instant case are the requirements under Subrule
(B), which addresses understanding pleas:
(B) An Understanding Plea. Speaking directly to the
defendant or defendants, the court must advise the defen-
dant or defendants of the following and determine that
each defendant understands:

* * *

(2) the maximum possible prison sentence for the

offense and any mandatory minimum sentence required
by law, including a requirement for mandatory lifetime
electronic monitoring under MCL 750.520b or 750.520c[.]
[MCR 6.302(B)(2).]

Defendant argues that a trial court must advise

persons in his circumstances when the court possesses
the discretion to impose consecutive sentences because
such sentences affect the “maximum possible prison
sentence.” MCR 6.302(B)(2). That is, if the trial court
only advised the defendant that he or she faced a
maximum penalty of five years’ imprisonment, when,
in fact, he or she was facing a maximum penalty of 10
years’ imprisonment as a consequence of a consecutive
2020] PEOPLE V WARREN 205
OPINION OF THE COURT

sentence, the trial court would have failed to inform the

defendant of the “maximum possible prison sentence”
and thus the defendant would not have fully understood
the consequences of the plea.2 Conversely, the prosecu-
tor argues that the court rule does not explicitly
require the trial court to inform defendants of discre-
tionary consecutive-sentencing authority. Rather, trial
courts are only required to advise a defendant of the
“maximum possible prison sentence for the offense,”
meaning that they are only required to inform defen-
dants of the maximum sentence for each separate or
discrete conviction. MCR 6.302(B)(2) (emphasis
added). And in the instant case, this was done: the trial
court properly advised defendant that the maximum
possible prison sentence for each of his OWI-3rd con-
victions was five years’ imprisonment. To resolve this
matter, we must undertake two related analyses: first,
we must determine the extent to which prior caselaw
governs the resolution of this issue and, second, if prior
caselaw does not do so, we must determine in the first
instance the proper understanding of MCR 6.302(B)(2).

A. CASELAW

We agree with the Court of Appeals majority that

Michigan caselaw has not resolved the determinative
question in this case: whether MCR 6.302(B)(2) re-

2
We are cognizant that the trial court informed defendant that he faced
a maximum of five years’ imprisonment on each of his OWI-3rd convic-
tions and therefore that he could have assumed that he was subject to the
sum total of 10 years’ imprisonment. However, we are not prepared to
operate upon the assumption that defendant was properly informed here
on the basis that he believed, mistakenly, that as a general rule his
sentences would be imposed consecutively. See People v Ryan, 295 Mich
App 388, 401; 819 NW2d 55 (2012) (“In Michigan, concurrent sentencing
is the norm, and a consecutive sentence may be imposed only if specifi-
cally authorized by statute.”) (quotation marks and citation omitted).
206 505 MICH 196 [Apr
OPINION OF THE COURT

quires courts to inform defendants of discretionary

consecutive-sentencing authority before accepting a
guilty or no-contest plea. We first address this Court’s
decision in Johnson and then the Court of Appeals’
decision in Blanton, because we specifically directed
the Court of Appeals on remand to assess these specific
decisions to determine what relevance, if any, these
bear to the issue at hand.
In Johnson, the issue concerned whether the former
court rule regarding pleas, GCR 1963, 785.7, required
trial courts to inform defendants of the consequences of
MCL 791.233b, then known as “Proposal B.” Johnson,
413 Mich at 488. Under this law, a defendant was “not
eligible for parole until he or she has served the mini-
mum sentence imposed by the court, undiminished by
allowance for good time, special good time, or special
parole.” Id. at 488 n 1. We held that trial courts were not
required to inform defendants of the consequences of
Proposal B because the court rule did not expressly
require trial courts to inform defendants of those conse-
quences. Id. at 490. In so holding, we also observed that
the prior version of MCR 6.302 had not required trial
courts to inform defendants of “other potential sentence
consequences such as consecutive sentencing.” Id. How-
ever, the issue in dispute in Johnson did not generally
involve the consequences of consecutive sentencing, but
rather only the specific consequences of Proposal B;
thus, its generalized statement on consecutive sentenc-
ing effectively constituted dictum because it was unnec-
essary to the resolution of the issue in Johnson. See
People v Peltola, 489 Mich 174, 190 n 32; 803 NW2d 140
(2011). For that reason, we do not find Johnson disposi-
tive of the issue in the present case.
And in Blanton, the Court of Appeals held that trial
courts must inform a defendant pleading guilty to
2020] PEOPLE V WARREN 207
OPINION OF THE COURT

felony-firearm that “(1) he would be sentenced to a

mandatory two-year term of imprisonment, (2) this
term of imprisonment would be served first, and (3) the
concurrent sentences for [the underlying substantive
offenses] would be served consecutively to the felony-
firearm sentence.” Blanton, 317 Mich App at 120. The
rationale for this holding was that MCR 6.302(B)(2)
required trial courts to advise defendants of “any
mandatory minimum sentence required by law,” and
that “when a defendant carries a firearm during the
commission of a felony, he or she is subject to a
mandatory two-year term of imprisonment to be served
‘consecutively with and preceding any term of impris-
onment imposed’ for the underlying felony.” Blanton,
317 Mich App at 119-120 (citations and emphasis
omitted). Blanton thus relied upon the “mandatory
minimum sentence” language of MCR 6.302(B)(2) and
not the “maximum possible prison sentence” language
of the rule, and therefore is also not dispositive of the
issue in this case, which pertains only to whether
discretionary consecutive sentencing implicates the
“maximum possible prison sentence for the offense.”
MCR 6.302(B)(2).3
Concluding that neither Johnson nor Blanton clearly
resolves the issue in dispute, we turn to MCR
6.302(B)(2) to assess what course must be followed by
the trial court concerning communications to a defen-

3
We recognize that Blanton also asserts, “[A]lthough not explicitly
required by MCR 6.302(B), it is well settled that a trial court must
inform the defendant of any ‘consecutive and/or mandatory sentencing’
requirements.” Blanton, 317 Mich App at 119 (citation omitted). How-
ever, because the issue in Blanton pertained to mandatory consecutive
sentencing for a felony-firearm conviction, we do not believe it referred
clearly to the matter of whether defendants must be advised as to
discretionary consecutive-sentencing authority. That said, Blanton is
consistent with our ruling today that trial courts must advise defen-
dants, when applicable, of even discretionary authority in this regard.
208 505 MICH 196 [Apr
OPINION OF THE COURT

dant regarding its discretionary consecutive-sentencing

authority and the consequences of that authority for
defendant’s ultimate sentence.

B. MCR 6.302(B)(2)

When interpreting a court rule, we begin, of course,

with its text, reading the individual words and phrases
in their context. People v Traver, 502 Mich 23, 31; 917
NW2d 260 (2018). In doing so, this Court “must give
effect to every word, phrase, and clause” in the court
rule. People v Comer, 500 Mich 278, 287; 901 NW2d
553 (2017). We examine first the phrase “maximum
possible prison sentence” within MCR 6.302(B)(2). The
court rule does not specifically define this phrase or the
individual words contained within it, but this Court
gives undefined terms their plain and ordinary mean-
ings and will often consult dictionary definitions in
conferring such meaning. People v Duncan, 494 Mich
713, 723; 835 NW2d 399 (2013). “Maximum” means
“an upper limit allowed (as by a legal authority) or
allowable (as by the circumstances of a particular
case).” Merriam-Webster’s Collegiate Dictionary (11th
ed). And “possible” describes “something that may or
may not occur.” Id. Therefore, MCR 6.302(B)(2) re-
quires advising defendants of the maximum allowable
prison sentence under the law, as well as under the
particular circumstances of the case, whether that is
the actual sentence that eventually transpires. This
phrase is further modified by the prepositional phrase
“for the offense.” MCR 6.302(B)(2). The prosecutor
argues, and the dissent would conclude, that this
qualifying language indicates that a court must only
advise defendants of the maximum possible prison
sentence for each separate or discrete offense—in this
case, five years’ imprisonment for each of two OWI-3rd
2020] PEOPLE V WARREN 209
OPINION OF THE COURT

convictions. Respectfully, we do not construe this lan-

guage so narrowly, but in what we view to be a more
reasonable fashion. We believe that the “maximum
possible prison sentence for the offense” is additionally
and materially affected by the possibility of consecu-
tive sentencing and therefore that defendants must be
facilitated in fully understanding the potential conse-
quences of the trial court’s discretionary consecutive-
sentencing authority. We believe so for the following
reasons:
First, in addition to understanding the possible
duration of each sentence for multiple offenses, the
defendant must also understand the possibility that
the sentence for an offense may not commence until
after the defendant has served one or more underlying
sentences. This comprehension is critical to a pleading
individual fully understanding the “maximum possible
prison sentence for the offense.” MCR 6.302(B)(2).
Consecutive sentences are “served in sequence,” while
concurrent sentences are “served simultaneously.”
Black’s Law Dictionary (11th ed) (emphasis added). As
a result, the fact of consecutive-sentencing authority is
as integral to a fully understanding plea as the facts of
the sheer duration of potential sentences for each
offense viewed in splendid isolation. For when the trial
court possesses such authority, the defendant’s sen-
tences are neither viewed nor imposed in isolation, and
for the defendant personally, understanding fully the
consequences and implications of a plea is not some
academic exercise but an intensely practical and life-
altering exercise by which he or she might reasonably
compare the wisdom of a guilty or no-contest plea with
the merits of proceeding to trial. Both of these
considerations—the possible duration of each sentence
and the possibility that one or more of these sentences
will not commence immediately but only after another
210 505 MICH 196 [Apr
OPINION OF THE COURT

has been served—will in the harshest reality deter-

mine the defendant’s “maximum possible prison sen-
tence for the offense,” and defendants are entitled to be
made fully aware of this reality so that they might
enter into a genuinely “understanding, voluntary, and
accurate” plea.
In the instant case, the trial court’s authority to
impose a consecutive sentence derives from MCL
768.7b, which states in relevant part:
(2) Beginning January 1, 1992, if a person who has
been charged with a felony, pending the disposition of the
charge, commits a subsequent offense that is a felony,
upon conviction of the subsequent offense or acceptance of
a plea of guilty, guilty but mentally ill, or nolo contendere
to the subsequent offense, the following shall apply:
(a) Unless the subsequent offense is a major controlled
substance offense, the sentences imposed for the prior
charged offense and the subsequent offense may run
consecutively. [MCL 768.7b(2)(a).]

The effect of MCL 768.7b thus is to postpone the

moment at which sentencing for one or more “subse-
quent offense[s]” will commence, and “[t]he purpose of
the statute is to deter persons accused of one crime
from committing others by removing the security of
concurrent sentences should conviction result on any
or all of the crimes so committed.” People v Bonner, 49
Mich App 153, 158; 211 NW2d 542 (1973). Conse-
quently, the statute differentiates between two classes
of persons: “those who have committed subsequent
felonies while on bond and those who have not . . . .” Id.
And the Legislature has thereby provided “different
punishments between those classes” wherein the de-
fendant who has committed a felony while on bond is
subject to a greater punishment than the defendant
who has not. Id.
2020] PEOPLE V WARREN 211
OPINION OF THE COURT

Hence, while consecutive sentencing does not in-

crease the maximum duration of a sentence for any
single offense, the postponement of one or more of the
sentences effectively constitutes an enhanced punish-
ment designed to deter persons from committing addi-
tional crimes while other charges are already pending
by increasing the total duration of potential incarcera-
tion. In the fullest light of reality, defendant’s “maxi-
mum possible prison sentence” will be determined by
both the durations of the sentences for each offense
and their susceptibility to consecutive sentencing. We
find it critical then that a defendant, in order to fully
understand the consequences of a plea, and to be fully
cognizant of the “maximum possible prison sentence”
on each offense, be apprised that a sentence for a
subsequent offense to which he or she is pleading
guilty may not proceed immediately but rather may be
delayed—this as a part of a purposeful legislative
design to punish the defendant with greater severity.
In this manner, the fact of consecutive sentencing
constitutes highly relevant information that directly
implicates the “maximum possible prison sentence for
the offense” under MCR 6.302(B)(2).4
Second, our court rules require that “[w]ords used in
the singular also apply to the plural, where appropri-
ate.” MCR 1.107.5 Accordingly, this Court must also

4
This opinion should not be understood as requiring trial courts to
advise defendants of precisely when a consecutive sentence will com-
mence. Rather, it is sufficient that defendants be reasonably informed
that possible consecutive sentences will have to be served sequentially,
i.e., that such sentences will not begin until after other sentences have
been served.
5
In a similar vein, MCL 8.3b states: “Every word importing the
singular number only may extend to and embrace the plural number,
and every word importing the plural number may be applied and limited
to the singular number.”
212 505 MICH 196 [Apr
OPINION OF THE COURT

reasonably read MCR 6.302(B)(2) as requiring trial

courts to inform defendants of “the maximum possible
prison sentence for the offenses.” We believe it is
“appropriate” to consider “offense” in both the singular
and the plural because it is frequently the case that a
criminal defendant will be convicted of more than a
single crime and it is reasonable that MCR 6.302(B)(2)
would be understood as affording its myriad protec-
tions to all criminal defendants, not merely to those
convicted of a single offense, for such a distinction
would be odd (if not unprecedented) within our crimi-
nal rules and, specifically with regard to MCR
6.302(B)(2), lacking in any apparent purpose. Thus, we
conclude that when a trial court advises a defendant of
his or her “maximum possible prison sentence,” this
must encompass not only the “maximum possible
prison sentence” for each individual “offense,” but also
the “maximum possible prison sentence” for the con-
viction of “offenses” specifically as to which the trial
court possesses an authority to impose consecutive
sentences.6
Defendant here was instructed that each OWI-3rd
conviction carried a five-year maximum term of impris-
onment, which, if imposed concurrently, would amount
to a maximum possible sentence of five years’ impris-
onment. However, because of the trial court’s discre-
tionary consecutive-sentencing authority, defendant

6
See e.g., Commonwealth v Persinger, 532 Pa 317, 323; 615 A2d 1305
(1992) (“In order to understand the consequences of his plea it is clear
that a defendant must be informed of the maximum punishment that
might be imposed for his conduct. To hold that the term ‘maximum’ does
not include the total possible aggregate sentence is clearly incorrect.”)
(citation omitted); State v Ricks, 53 Ohio App 2d 244, 246-247; 372 NE2d
1369 (1977) (holding that in order for a defendant to understand the
maximum penalty, he or she must understand “whether defendant is
eligible for consecutive or concurrent sentences”).
2020] PEOPLE V WARREN 213
OPINION OF THE COURT

actually faced, and received, a maximum possible

sentence of 10 years’ imprisonment. This was, in fact,
the “maximum possible prison sentence for the of-
fenses.” A trial court’s failure to advise a defendant of
possible consecutive sentencing in the course of appris-
ing him or her of a “maximum possible prison sen-
tence” disregards the reality that the defendant may
face a far-lengthier prison sentence—a reality that we
believe is anticipated, and accommodated, by the most
reasonable understanding of MCR 6.302(B)(2).
The dissent maintains that our use of this canon of
interpretation is inconsistent because we read only
“offense” in the plural while maintaining the singular
use of the term “sentence.” However, we see no such
inconsistency, as certainly a defendant must not only
understand the maximum possible “sentence” for each
separate offense, but also that for the range of “offenses”
of which he or she has been convicted, some of which
may be viewed by the law as interconnected in a way
that carries independent sentencing consequences.
Then, and only then, can a defendant fully apprehend
the true maximum term of incarceration that he or she
faces,7 i.e., the term of incarceration from its starting
date to its release date, i.e., the period during which by
force of law a person who has breached the strictures of
that law will be segregated from free society and
deprived of his or her God-given liberty.8 That said, our

7
A defendant’s maximum term of incarceration is, in other words, his
or her “aggregate sentence,” which is defined as “[t]he total sentence
imposed for multiple convictions, reflecting appropriate calculations for
consecutive as opposed to cumulative periods . . . .” Black’s Law Diction-
ary (11th ed).
8
The Attorney General, appearing as amicus curiae on behalf of
defendant, asserted at oral argument that
no single variable of a sentence [is] more important to a criminal
defendant than how much time he will serve. It’s more important
214 505 MICH 196 [Apr
OPINION OF THE COURT

application of the singular/plural canon of interpreta-

tion is not grounded on “advanc[ing] a policy goal,” as
asserted by the dissent, but on the specific language of
MCR 6.302(B)(2) requiring that a defendant under-
stand the “maximum possible prison sentence for the
offenses.” The dissent avers that consistency and the
use of “common sense” in applying this canon would
require both “sentence” and “offense” to be read either
in the plural or the singular; in other words, that these
terms must travel together. But that is not what is
stated in the canon, and for good reason. Rather, the
dissent’s understanding gives minimal consideration
to the guidance of the canon that it should be applied
“where appropriate.” MCR 1.107. We believe it is
altogether “appropriate” here to read only “offense” in
the plural under MCR 6.302(B)(2), as this optimally
ensures that a defendant will come to understand the
“maximum possible prison sentence” implicated by a
guilty or no-contest plea. This purpose, in our judg-
ment, defines the obvious and fundamental purpose
served by MCR 6.302(B)(2), and there is no obvious
than knowing if you’re going to be on a sex offenders’ registry or
whether . . . you are pleading to a felony or a misdemeanor, or
whether or not that crime may be expungable at some period;
maybe later on those things will become significant. But at the
very moment that an individual is deciding whether or not to
enter that plea, all they really care about is how much time am I
going to do.
And despite the dissent’s assertion that the Attorney General argues
only that “due process requires us to amend our court rule,” her position
at oral argument was to the contrary. Although she did urge the Court
to amend its rule to clarify the trial court’s consecutive-sentencing
obligation, the Attorney General nonetheless adopted the position that
MCR 6.302(B)(2), as it currently reads, required the trial court here to
advise defendant of the court’s discretionary consecutive-sentencing
authority, apart from any “due process” requirement, precisely because
the consequences of consecutive sentencing affect “the actual term of
years [a defendant] receive[s].”
2020] PEOPLE V WARREN 215
OPINION OF THE COURT

rationale for limiting the purview of this rule to circum-

stances in which a defendant has been convicted of only
a single offense or even of multiple offenses for which
there is no possibility of consecutive sentencing. Thus,
while professing to rely upon “common sense” in giving
meaning to the court rule, the dissent not only errs in
its construction of the rule, but fails to account for the
most fundamentally “common sense” aspect of the plea
itself—that the pleading party accurately comprehend
the maximum possible prison sentence to which he or
she is pleading. In sum, we do not believe that the
dissent’s interpretation of the singular and plural terms
of MCR 6.302(B)(2) constitutes the most reasonable
understanding of its language, the best discernment of
the intentions of its framers, or the most appropriate
application of the singular/plural canon, and therefore it
is “appropriate” that we give the meaning to the rule
that we do.
Even, however, if we read “sentence” in the plural as
the dissent would have us do, we reach the same
conclusion. That is, if a defendant must be apprised of
the “maximum possible prison sentences for the of-
fenses,” the trial court would still be required to inform
the defendant of the court’s discretionary consecutive-
sentencing authority because where “sentences” are
imposed, and indeed only where “sentences” are im-
posed, the possibility of a consecutive sentence becomes
a possibility affecting the defendant’s “maximum pos-
sible prison sentence” on such multiple “sentences.” And
thus to ensure the defendant’s full understanding of the
plea, he or she must be apprised of the court’s discre-
tionary consecutive-sentencing authority.9

9
The dissent asserts that our “alternative analysis” concerning the
singular/plural canon, i.e., where we read both “sentence” and “offense”
in the plural, “fails to consider the entire context of MCR 6.302(B).”
216 505 MICH 196 [Apr
OPINION OF THE COURT

Our interpretation of MCR 6.302(B)(2) is also con-

sistent with this Court’s decision in Brown—a decision
the dissent does not address in any meaningful way.
There, we held that even though MCR 6.302(B) did not
expressly require trial courts to advise defendants of
habitual-offender enhancements, MCR 6.302(B)(2)
nonetheless required courts to advise “of the maximum
possible prison sentence with habitual-offender
enhancement because the enhanced maximum be-
Specifically, it asserts that the phrase “maximum possible prison
sentence[s] for the offense[s]” does not stand alone and must be
considered along with MCR 6.302(B)(1), a separate provision requiring
trial courts to advise the defendant of “the name[s] of the offense[s] to
which the defendant is pleading.” And when these provisions are
viewed together through the lens of the singular/plural canon, “just as
Subsection (1) requires a trial court to inform a defendant of each
name of each offense, so [too] Subsection (2) requires a trial court to
inform a defendant of each maximum possible sentence, not the
maximum possible aggregate sentence.” However, we do not believe
that (B)(1) has any particular effect on our application of the
singular/plural canon to (B)(2). Even under the dissent’s (correct)
understanding of the contextual relationship between (B)(1) and
(B)(2)—that these provisions must be read together—we are no less
persuaded that defendants should be facilitated in their fullest under-
standing of the implications of the trial court’s discretionary
consecutive-sentencing authority. Even when reading each noun of
these provisions in the plural, as the dissent would have us do, we
remain persuaded that MCR 6.302(B) requires courts to advise defen-
dants of their discretionary consecutive-sentencing authority. It truly
seems of no consequence that a trial court be required to inform a
defendant of the “maximum possible prison sentence[s] for the of-
fense[s]” or where (B)(1) and (B)(2) are read together to inform a
defendant of the “maximum possible prison sentence[s] for . . . the
name[s] of the offense[s] to which the defendant is pleading.” In other
words, our understanding of the court rule is not altered at all by
consideration of (B)(1) and (B)(2) in tandem. As stated earlier, consecu-
tive sentencing only becomes a possibility affecting a defendant’s
maximum possible term of incarceration when there are multiple
“sentences” for the named “offenses,” and thus we believe our under-
standing of the rule to have no less force when (B)(1) and (B)(2) are
considered together.
2020] PEOPLE V WARREN 217
OPINION OF THE COURT

comes the ‘maximum possible prison sentence’ for the

principal offense.” Brown, 492 Mich at 693-694.10 We
then opined:
By not telling a defendant the potential maximum
sentence because of his or her habitual-offender status, “a
trial court is not advising of the ‘true’ potential maximum
sentence.” Today’s holding accurately reflects the intent of
MCR 6.302(B)(2), which is that a defendant be informed
beforehand of the maximum sentence that would follow
his or her plea of guilty. [Id. at 694 (citation omitted).]
[A]n habitual offender supplement is not a separate
offense, and thus it logically follows that it must be linked
to, or considered one with, the underlying offense. As such,
to comply with MCR 6.302(B)(2), a defendant must be
made aware of the consequences of “the offense” including
any habitual offender enhancement. [Id. at 694 n 35
(quotation marks and citation omitted).]

Ultimately, we are persuaded that requiring the

trial court to advise a defendant of the possibility of
consecutive sentencing is consistent with “the intent of
MCR 6.302(B)(2), which is that a defendant be in-
formed beforehand of the maximum sentence that
would follow his or her plea of guilty.” Id. at 694. When
the court does not so inform the defendant, it is “not
advising of the ‘true’ potential maximum sentence” as
it pertains to the punishment on the multiple offenses.
Id. (quotation marks and citation omitted). Moreover,
in order to comply with MCR 6.302(B)(2), “a defendant
must be fully aware of the consequences” of the plea,
Brown, 492 Mich at 694 n 35, which includes the fact
that the second sentence could be served consecutively

10
“The habitual-offender statutes, MCL 769.10 et seq., provide en-
hancement of a defendant’s sentence on the basis of prior felony
convictions,” which is intended to have “a deterrent and punitive
purpose.” Brown, 492 Mich at 689 (quotation marks and citation
omitted).
218 505 MICH 196 [Apr
OPINION OF THE COURT

to the first sentence, resulting in a longer term of

incarceration. That is, as with the habitual-offender
enhancement in Brown, consecutive sentencing does
not give rise to a separate offense, but rather is, for all
practical and legal purposes, “linked to,” or “considered
one with,” or interconnected with, underlying “of-
fenses,” and thus constitutes an irreducible aspect of
sentencing for multiple “offenses” in specified
circumstances—that the punishment for one or more of
these “offenses” will be postponed in order to lengthen
the punishment. Therefore, in accordance with our
court rules, the trial court must disclose its
consecutive-sentencing authority in order to ensure, as
in Brown, that the defendant accurately understands
his “true potential maximum sentence.” Id. at 694.11

IV. CONCLUSION

We conclude that MCR 6.302(B)(2) requires the trial

court, in cases in which such advice is relevant, to
advise a defendant of its discretionary consecutive-
sentencing authority and the possible consequences of
that authority for the defendant’s sentence. This is
because such authority clearly affects the defendant’s
“maximum possible prison sentence for the offense.” As
a result, the trial court here erred when it denied
defendant’s motion to withdraw his plea because the
court failed to apprise defendant of this authority and
its possible consequences for his sentence. We there-
fore reverse the judgment of the Court of Appeals and

11
Because we conclude that MCR 6.302(B)(2) requires trial courts to
advise defendants of the court’s discretionary consecutive-sentencing
authority and the reasonable implications of that authority, we do not
address defendant’s “due process” argument. See People v Riley, 465
Mich 442, 447; 636 NW2d 514 (2001) (noting that the Court generally
will not address constitutional issues if it is unnecessary to resolve a
case).
2020] PEOPLE V WARREN 219
DISSENTING OPINION BY ZAHRA, J.

remand to the trial court to allow defendant the

opportunity to either withdraw his guilty plea or to
reaffirm this plea.

MCCORMACK, C.J., and BERNSTEIN, CLEMENT, and

CAVANAGH, JJ., concurred with MARKMAN, J.

ZAHRA, J. (dissenting). MCR 6.302(B) requires trial

courts to advise a defendant of “the name of the offense
to which the defendant is pleading,” MCR 6.302(B)(1),
and “the maximum possible prison sentence for the
offense,” MCR 6.302(B)(2). If, as in this case, a defen-
dant pleads guilty or no contest to more than one
offense, MCR 6.302(B) requires only that trial courts
advise defendants of “the name[s] of the offense[s] to
which the defendant is pleading” and “the maximum
possible prison sentence[s] for the offense[s].” The
majority holds that MCR 6.302(B) requires, in cases
involving potential consecutive sentences, that trial
courts “advise a defendant of its discretionary
consecutive-sentencing authority and the possible con-
sequences of that authority for the defendant’s sen-
tence.” The construction embraced by the majority
opinion is overly broad and imposes on trial courts a
requirement I do not find in MCR 6.302(B). The lan-
guage of MCR 6.302(B) simply does not require trial
courts to calculate a defendant’s potential aggregate
maximum possible prison sentence1 resulting from the
imposition of consecutive sentences. Further, this
Court has at least twice previously declined to amend
the court rules to expressly provide that trial courts
advise defendants of a possible aggregate maximum

1
An “aggregate sentence” is defined as “[t]he total sentence imposed
for multiple convictions, reflecting appropriate calculations for consecu-
tive as opposed to cumulative periods, reductions for time already
served, and statutory limitations.” Black’s Law Dictionary (11th ed).
220 505 MICH 196 [Apr
DISSENTING OPINION BY ZAHRA, J.

sentence resulting from the imposition of consecutive

sentences. Because I do not agree with the majority’s
decision to read into MCR 6.302(B) that which this
Court has twice declined to expressly add to our court
rules, I must respectfully dissent.2 I would affirm the
lower courts.

I. BASIC FACTS AND PROCEEDINGS

In late 2014, defendant was caught operating a

motor vehicle while intoxicated. Six months later,
while free on bond awaiting trial, he was again caught
operating a motor vehicle while intoxicated. In each
case, the prosecution charged defendant with operat-
ing a vehicle while intoxicated, third offense,3 in addi-
tion to attendant misdemeanors related to the offense,
and provided defendant notice that he was subject to
sentence enhancement as a fourth-offense habitual
offender.4 Defendant’s prior criminal record is exten-
sive, including nine felony convictions and eleven mis-
demeanor convictions.
Defendant agreed to plead guilty to both drunk-
driving charges in exchange for the dismissal of the
remaining charges and the habitual-offender enhance-
ment. At defendant’s plea hearing, the trial court
informed him of the maximum sentence for each

2
Because I conclude that MCR 6.302(B) provides no relief to defen-
dant, I must also address defendant’s constitutional argument: whether
his due-process rights were violated by the trial court’s failure to inform
him of the possibility of consecutive sentences. For reasons fully
developed in this dissenting opinion, I conclude that defendant’s due-
process rights were not violated by the trial court’s failure to inform
defendant of the possibility he could be sentenced consecutively under
MCL 768.7b.
3
MCL 257.625.
4
MCL 769.12(1)(b).
2020] PEOPLE V WARREN 221
DISSENTING OPINION BY ZAHRA, J.

drunk-driving offense (five years). Specifically, the

court stated that “each of the charges carries with it,
absent the habitual, . . . a five year maximum charge;
is that correct, folks?” Both the prosecution and coun-
sel for defendant agreed. After determining that defen-
dant was voluntarily pleading guilty to the offenses,
the court elicited from defendant a factual basis for the
2014 offense and accepted defendant’s plea to that
offense. The court then elicited a factual basis for the
2015 offense and accepted defendant’s plea to that
offense.
Before defendant’s sentencing hearing, the proba-
tion department prepared a presentence investigation
report (PSIR). In it, the probation department in-
formed the trial court that it had the discretionary
authority to impose consecutive sentences because
defendant committed the second offense while on bond
for the first.5 The PSIR provided the probation agent’s
“Description of the Offense” in which each offense was
separately delineated. Within the PSIR, the agent
included a “Sentencing Information Report” (SIR) for
each offense and assessed defendant’s prior record
variables and offense variables for each offense. Each
SIR scored defendant’s sentencing guidelines, and
each recommended a minimum sentence of 12 to 24
months’ imprisonment. The PSIR recommended that
“defendant be sentenced to the Michigan Department
of Corrections for a period of 24 months to 60 months
for both Dockets, to run consecutively, with credit for 3
days served.”
Following the probation department’s recommenda-
tion, the trial court exercised its discretion and im-
posed consecutive sentences of 24 to 60 months’ impris-

5
See MCL 768.7b.
222 505 MICH 196 [Apr
DISSENTING OPINION BY ZAHRA, J.

onment, citing defendant’s lengthy criminal history,

the fact that the offense committed on bond was the
very same offense for which bond had been granted,
and his proclivity for alcohol-related offenses as docu-
mented in his PSIR.
Several months later, with the assistance of new
counsel, defendant moved to withdraw his plea, argu-
ing that the plea-taking process was constitutionally
defective because he had not been specifically advised
that the trial court had the discretionary authority to
impose consecutive sentences. The trial court denied
the motion, and the Court of Appeals denied the
ensuing application for leave to appeal for lack of merit
in the grounds presented.6
Defendant appealed in this Court, and in lieu of
granting leave to appeal, we remanded the case for
consideration as on leave granted.7 The Court of Ap-
peals, in a split decision, rejected defendant’s claim
that the trial court had a duty to inform him of the
possibility of consecutive sentencing before accepting
his plea.8 Defendant again applied for leave to appeal

6
People v Warren, unpublished order of the Michigan Court of
Appeals, entered November 1, 2016 (Docket No. 333997).
7
People v Warren, 500 Mich 1056 (2017).
8
People v Warren, unpublished per curiam opinion of the Court of
Appeals, issued May 17, 2018 (Docket No. 333997), unpub op at 1. The
majority held that the plain language of MCR 6.302 did not require
advice about the possibility of discretionary consecutive sentencing. The
majority also concluded that due process did not require the trial court
to advise defendant that it had discretion to impose consecutive sen-
tences because it was not a “direct consequence” of pleading guilty. Id. at
5. Judge GLEICHER dissented, contending that both MCR 6.302(B) and
due process required trial courts to inform defendants about the
possibility of consecutive sentences because, like habitual-offender
enhancements, consecutive sentences affect a defendant’s “true poten-
tial maximum sentence.” Id. at 3 (GLEICHER, J., dissenting) (quotation
marks and citation omitted).
2020] PEOPLE V WARREN 223
DISSENTING OPINION BY ZAHRA, J.

in this Court, and we ordered oral argument on the

application, directing the parties to file supplemental
briefs addressing whether, when a defendant’s plea of
guilty or no contest will subject him to the court’s
discretion to impose consecutive sentences, the court
must advise the defendant of that possibility before the
court may accept the plea.9

II. APPLICABLE STANDARDS OF REVIEW

The interpretation of court rules presents a question

of law that we review de novo.10 Questions of constitu-
tional law involving waiving constitutional rights by
entering a guilty plea are reviewed de novo.11 Viola-
tions of the Michigan Rules of Court are nonconstitu-
tional errors, and violations of due-process rights are
constitutional errors, but when unpreserved, both are
subject to plain-error review.12

III. ANALYSIS

A. THE PLAIN LANGUAGE OF MCR 6.302(B) DOES

NOT CONTEMPLATE CONSECUTIVE SENTENCES

MCR 6.302(B) concerns “An Understanding Plea,”

and it requires the trial court to “advise the defendant
or defendants of the following and determine that each
defendant understands:”
(1) the name of the offense to which the defendant is
pleading; the court is not obliged to explain the elements
of the offense, or possible defenses;

9
People v Warren, 503 Mich 988 (2019).
10
People v Lee, 489 Mich 289, 295; 803 NW2d 165 (2011).
11
People v Cole, 491 Mich 325, 330; 817 NW2d 497 (2012).
12
People v Carines, 460 Mich 750, 767; 597 NW2d 130 (1999).
224 505 MICH 196 [Apr
DISSENTING OPINION BY ZAHRA, J.

(2) the maximum possible prison sentence for the offense

and any mandatory minimum sentence required by law,
including a requirement for mandatory lifetime electronic
monitoring under MCL 750.520b or 750.520c.

MCR 6.302(B)(2) refers not just to any “maximum

possible prison sentence,” but to “the maximum possible
prison sentence for the offense.” Reading (B)(1) and
(B)(2) together, the court must advise a defendant as to
the name of each discrete offense to which a defendant
is pleading, as well as to each discrete corresponding
maximum possible prison sentence. There is nothing in
the court rule suggesting that “sentence” should be read
as “aggregate sentence.”13 The plain language of MCR
6.302(B) simply does not require a trial court to advise
a defendant at the plea hearing of the maximum
possible aggregate prison sentence for the offenses to
which the defendant is pleading. Therefore, it cannot
be said, as the majority claims, that the phrase “maxi-
mum possible prison sentence for the offense” within
MCR 6.302(B)(2) is “additionally and materially af-
fected by the possibility of consecutive sentencing . . . .”
Of course the trial court, within its discretion, may
offer an opinion about a maximum possible aggregate
prison sentence to assist the parties in facilitating a
plea agreement, see, e.g., People v Cobbs,14 but neither
our caselaw nor our court rules currently require the
trial court to provide defendant with such assistance.
I agree with the majority that “Michigan caselaw has
not resolved the determinative question in this case:
whether MCR 6.302(B)(2) requires courts to inform

13
See note 1 of this opinion. If this Court had wanted to use the term
“aggregate sentence” to clarify that a defendant must be informed of the
maximum possible total sentence for multiple convictions, it could have
done so.
14
People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).
2020] PEOPLE V WARREN 225
DISSENTING OPINION BY ZAHRA, J.

defendants of discretionary consecutive-sentencing au-

thority before accepting a guilty or no-contest plea.”15
Nonetheless, there is persuasive federal authority in-
terpreting the analogous federal rule, which is broader
in scope than the Michigan rule.16 Specifically, FR Crim
P 11(b)(1)(H) requires a defendant pleading guilty to be
informed of “any maximum possible penalty.” In
United States v General,17 the United States Court of
Appeals for the Fourth Circuit held, “Rule 11 . . . does
not require a district court to inform the defendant of
mandatory consecutive sentencing.” Other federal
cases have concluded the same.18

15
As the majority points out, People v Johnson, 413 Mich 487, 490; 320
NW2d 876 (1982), stated that the former court rule did not require trial
courts to inform a defendant of “other potential sentence consequences
such as consecutive sentencing.” I recognize, however, that this statement
is dicta. Further, in my view, Johnson is distinguishable because it did not
address a defendant’s “maximum possible prison sentence” for any
particular offense, but only a lack of parole eligibility for that offense.
Parole eligibility does not relate to a “maximum possible prison sentence”;
indeed, a paroled prisoner has necessarily not served a “maximum
possible prison sentence.” I also agree with the majority that People v
Blanton, 317 Mich App 107, 119; 894 NW2d 613 (2016), “relied upon the
‘mandatory minimum sentence’ language of MCR 6.302(B)(2) and not the
‘maximum possible prison sentence’ language of the rule” and is thus not
on point.
16
Though not binding, federal precedent may be persuasive when
interpreting analogous text. See, e.g., Tobin v Mich Civil Serv Comm,
416 Mich 661, 671; 331 NW2d 184 (1982) (reasoning that the Michigan
Freedom of Information Act, MCL 15.231 et seq., was patterned after the
federal law and, thus, “decisions under the federal law are often
instructive and, in this instance, persuasive”); Gumma v D & T Constr
Co, 235 Mich App 210, 223-224; 597 NW2d 207 (1999) (noting that,
because the Natural Resources and Environmental Protection Act, MCL
324.101 et seq., and its federal counterpart are similar, “it is appropriate
to examine federal case law interpreting similar issues”).
17
United States v General, 278 F3d 389, 395 (CA 4, 2002).
18
See United States v Henry, 702 F3d 377, 381 (CA 7, 2012) (“[T]he
district court was not required to advise Henry that his federal sentence
226 505 MICH 196 [Apr
DISSENTING OPINION BY ZAHRA, J.

The majority supports its construction of MCR

6.302(B)(2) with an interpretive court rule commonly
known as the “number canon” of construction, which
provides that “[w]ords used in the singular also apply
to the plural, where appropriate.”19 This principle is
also codified in Michigan law20 and has common-law
roots.21 But this canon of construction does not alter my
understanding of this court rule.
Applying the number canon to MCR 6.302(B), the
rule would read:
(1) the name[s] of the offense[s] to which the defendant
is pleading; the court is not obliged to explain the elements
of the offense[s], or possible defenses;
(2) the maximum possible prison sentence[s] for the
offense[s] and any mandatory minimum sentence[s] re-
quired by law, including a requirement for mandatory
lifetime electronic monitoring under MCL 750.520b or
750.520c[.]

Consistent application of the number canon supports

the conclusion that the trial court is not required to
inform defendant of the possibility of consecutive sen-
tences. Here, defendant pleaded guilty to two offenses
and, consistent with the number canon, was advised of
the maximum possible prison sentences for each of
those two offenses. But the majority does not apply the
number canon in a consistent manner throughout the

might be imposed to run consecutive to his undischarged state sen-

tence.”); United States v Ospina, 18 F3d 1332, 1334 (CA 6, 1994)
(“[T]here is no requirement in [FR Crim P 11] that the court explicitly
admonish a defendant that a sentence may be imposed consecutively.”).
19
MCR 1.107. The majority refers to this rule as the “singular/plural
canon.”
20
MCL 8.3b.
21
See Scalia & Garner, Reading Law: The Interpretation of Legal
Texts (St. Paul: Thomson/West, 2012), pp 129-130.
2020] PEOPLE V WARREN 227
DISSENTING OPINION BY ZAHRA, J.

court rule. Rather, the majority reaches its conclusion

by using the number canon to make plural every term
that is shown in brackets above, except the word
“sentence” in the phrase “the maximum possible
prison sentence.” But the number canon should apply
to each noun in MCR 6.302(B). As stated, the canon
dictates that singular nouns may be made plural
“where appropriate,”22 and I see no textual reason why
it is inappropriate to read “sentence” as “sentences”
when applying the canon to read “offense” as “of-
fenses.” Instead of using “common sense and everyday
linguistic experience”23 to apply the number canon, the
majority’s usage drastically changes the meaning of
the very object it purports to interpret. This applica-
tion of the number canon introduces an entirely new
concept—“the maximum possible [aggregate] prison
sentence”—in order to advance a policy goal.
The majority attempts to justify its application of
the number canon on the basis that
a defendant must not only understand the maximum
possible “sentence” for each separate offense, but also that
for the range of “offenses” of which he or she has been
convicted, some of which may be viewed by the law as
interconnected in a way that carries independent sentenc-
ing consequences. Then, and only then, can a defendant
fully apprehend the true maximum term of incarceration
that he or she faces . . . .

This may well be a laudable aim, but it is not a ground

upon which to base the application of a canon of
construction.
The majority opinion also states:

22
MCR 1.107.
23
Reading Law, p 130.
228 505 MICH 196 [Apr
DISSENTING OPINION BY ZAHRA, J.

Even, however, if we read “sentence” in the plural as the

dissent would have us do, we reach the same conclusion.
That is, if a defendant must be apprised of the “maximum
possible prison sentences for the offenses,” the trial court
would still be required to inform the defendant of the
court’s discretionary consecutive-sentencing authority be-
cause where “sentences” are imposed, and indeed only
where “sentences” are imposed, the possibility of a consecu-
tive sentence becomes a possibility affecting the defen-
dant’s “maximum possible prison sentence” on such mul-
tiple “sentences.” And thus to ensure the defendant’s full
understanding of the plea, he or she must be apprised of the
court’s discretionary consecutive-sentencing authority.

But this alternative construction of MCR 6.302

imposes on trial courts an obligation that is not ex-
pressed in the court rule: the extrapolation of a maxi-
mum possible aggregate prison sentence when a defen-
dant pleads guilty or no contest to multiple offenses.
Further, in positing its alternative analysis, the major-
ity fails to consider the entire context of MCR 6.302(B).
The phrase—as construed using the number canon—
“maximum possible prison sentence[s] for the of-
fense[s]” within MCR 6.302(B)(2) does not stand alone
and, in context, must be considered along with MCR
6.302(B)(1), which, when likewise construed using the
number canon, speaks to “name[s] of the offense[s].” As
stated, just as Subsection (1) requires a trial court to
inform a defendant of each name of each offense, so
Subsection (2) requires a trial court to inform a defen-
dant of each maximum possible sentence, not the
maximum possible aggregate sentence.
I will not dispute the notion that information in
regard to consecutive sentences is “critical to a plead-
ing individual” and “integral to a fully understanding
plea.” Nor do I dismiss the majority’s assertion that a
“defendant’s [consecutive] sentences are neither
viewed nor imposed in isolation, and for the defendant
2020] PEOPLE V WARREN 229
DISSENTING OPINION BY ZAHRA, J.

personally, understanding fully the consequences and

implications of a plea is not some academic exercise
but an intensely practical and life-altering exercise by
which he or she might reasonably compare the wisdom
of a guilty or no-contest plea with the merits of pro-
ceeding to trial.” These concerns may justify amending
the court rules to require a trial court to advise a
defendant under MCR 6.302(B) of:
(2) the maximum possible prison sentence for the
offense[, including, if applicable, whether the law permits
or requires consecutive sentences,] and any mandatory
minimum sentence required by law, including a require-
ment for mandatory lifetime electronic monitoring under
MCL 750.520b or 750.520c.

But the current language of MCR 6.302(B) does not

require that a trial court advise a defendant of the
possibility that the sentence for the offense may be
imposed consecutively to another sentence. Defen-
dant’s supplemental brief and the amicus briefs pre-
sented on defendant’s behalf all but concede the point.
Defendant’s supplemental brief does not rely on the
actual text of MCR 6.302(B) to support his interpre-
tation. Rather, he only argues under caselaw that he
was “not advised of [the] ‘true sentence’ he could
receive.”24 The amicus brief of the Criminal Defense
Attorneys of Michigan admits that “the Michigan
Rules of Court do not require a warning on consecutive
sentencing during the plea hearing . . . .” Our Attorney
General has taken the very unusual position of filing
an amicus brief against the position of her office. In so

24
In support of this argument, defendant cites People v Brown, 492
Mich 684, 702; 822 NW2d 208 (2012). The majority opinion does not
embrace defendant’s position, concluding instead that “[o]ur interpreta-
tion of MCR 6.302(B)(2) is . . . consistent with this Court’s decision in
Brown[.]”
230 505 MICH 196 [Apr
DISSENTING OPINION BY ZAHRA, J.

doing, she does not argue that MCR 6.302(B) requires

a trial court to extrapolate the maximum possible
sentence that can be imposed when a defendant pleads
guilty or no contest to multiple offenses. Instead she
argues that due process requires us to amend our court
rule.
Last, the language mentioned above as a suggestion
to amending MCR 6.302(B) is the exact language that
this Court declined to adopt in 1985.25 As the prosecu-
tion highlights, this Court has twice before considered
amending the court rules to expressly provide that
trial courts advise defendants of the possible effect on
the maximum aggregate sentence resulting from the
imposition of consecutive sentences, but the Court has
declined to do so. First, in the early 1970s this Court
created the Supreme Court Guilty Plea Standards
Committee.26 The Court offered Suggested Guilty Plea
Taking Guidelines as a starting point for the commit-
tee’s work and suggested that the new rule require
trial courts to “personally inform defendant of the
maximum sentence prescribed by law and, if there is a
mandatory minimum sentence, the minimum sentence
prescribed by law . . . [.]”27 Yet, in a footnote attached to
that suggested rule, this Court drew the committee’s
attention to Section 1.4(c)(i) of the American Bar
Association (ABA) Standards Relating to Pleas of
Guilty, which provided that the trial court must inform
the defendant “of the maximum possible sentence on
the charge including that possible from consecutive
sentences[.]”28

25
Proposed Rules of Criminal Procedure, 422A Mich 1, 113 (1985).
26
People v Williams, 386 Mich 277, 293-295; 192 NW2d 466 (1971).
27
Id. at 303.
28
Id. at 303 n 9 (emphasis added).
2020] PEOPLE V WARREN 231
DISSENTING OPINION BY ZAHRA, J.

Several months later, the committee proposed a

rule that required the trial court to inform the defen-
dant of “the maximum sentence and the mandatory
minimum sentence, if any, for the offense to which the
plea is offered[.]”29 Missing from the committee’s pro-
posal was the ABA’s consecutive-sentence language
that the Court highlighted for the committee. The
Court adopted the committee’s proposed rule without
change.30
Then, on November 4, 1981, the Court issued a
proposed amendment to the court rules that would
require that trial courts inform defendants of “the
maximum possible prison sentence for the offense,
including that possible from consecutive sen-
tences[.]”31 This Court never adopted the proposed
additional language.
In addition, as highlighted by amicus Prosecuting
Attorneys Association of Michigan, a Criminal Proce-
dure Rules Committee submitted Proposed Rules of
Criminal Procedure on August 5, 1985, which were
published for comment by the Court.32 The version of
MCR 6.302(A)(2) drafted by the committee required
that when taking a plea the trial court inform the
defendant of “the mandatory minimum penalty, if any,
and the maximum possible penalty for the offense,
including, if applicable, whether the law permits or
requires consecutive sentences or precludes probation or

29
In the Matter of the Amendment of GCR 1963, 785, unpublished
order of the Michigan Supreme Court, entered May 15, 1972, p 3
(publishing proposal for public comment).
30
GCR 1963, 785, 389 Mich liii, lv (1973) (promulgating revised court
rule).
31
Proposed amendment to GCR 1963, 785, unpublished order of the
Michigan Supreme Court, entered November 4, 1981, p 1.
32
422A Mich at 115.
232 505 MICH 196 [Apr
DISSENTING OPINION BY ZAHRA, J.

parole.”33 The Court, however, in adopting and modify-

ing the committee proposals, removed the provision
that a defendant pleading guilty be advised of the
consecutive-sentence ramifications of the plea.34 While
the crux of my analysis is based on the text of the court
rule, that these amendments were proposed and re-
jected provides further indication that the common
understanding of the court rule was that it did not
require defendants to be notified of the possibility of
consecutive sentencing.

B. DUE PROCESS DOES NOT REQUIRE THAT TRIAL COURTS INFORM

DEFENDANTS OF POTENTIAL CONSECUTIVE SENTENCES

Both the Michigan Constitution and the United

States Constitution preclude the government from
depriving a person of life, liberty, or property without
due process of law.35 Due process requires that a

33
Id. (emphasis added).
34
Perhaps one reason the Court declined to adopt these amendments
is because it may be difficult, as a practical matter, for the trial court to
know at the time of the plea hearing that a statute allowing for
consecutive sentencing applies to the defendant. As the prosecution
explained in its brief, in some situations, such as if a second offense
occurs in another county, the trial court may not be aware that
consecutive sentencing is a possibility at the time the defendant pleads
guilty. The growing number of statutes allowing for consecutive sen-
tences only makes it more difficult for a trial court to know at the plea
hearing whether such a statute applies. Yantus, Sentence Creep: In-
creasing Penalties in Michigan and the Need for Sentencing Reform, 47
U Mich J L Reform 645, 681 (2014) (“Before 1990, there were thirteen
consecutive sentencing statutes in Michigan. From 1990 to 2013, the
Legislature added twenty-nine new consecutive sentencing provi-
sions.”). Nevertheless, as stated, I am open to considering amending the
court rules to require that defendants be informed of the possibility of
consecutive sentences, but I believe that the administrative process
would be a better avenue through which to flesh out these kinds of
practical concerns.
35
US Const, Am XIV; Const 1963, art 1, § 17.
2020] PEOPLE V WARREN 233
DISSENTING OPINION BY ZAHRA, J.

criminal defendant pleading guilty do so (1) compe-

tently, (2) voluntarily, (3) knowingly, and (4) with the
benefit of effective assistance of counsel.36 This Court
has previously acknowledged that “the requirements of
constitutional due process . . . might not be entirely
satisfied by compliance with subrules (B) through (D)
[of MCR 6.302].”37
Here, only the third constitutional requirement is at
issue. To satisfy this requirement, a defendant must
have sufficient information to ensure that his or her
decision is an “intelligent choice among the alternative
courses of action open to the defendant.”38 The defen-
dant must also have some understanding of the option
he or she is choosing. That is, the defendant must be
aware of “the true nature of the charge” against him or
her39 as well as “the direct consequences” of entering a
guilty plea.40
Defendant first argues that the “possibility of con-
secutive sentencing violates Due Process because
consecutive sentencing is ‘part of the sentence itself,’
and would be a ‘direct’ rather than ‘collateral’ conse-
quence.” Defendant relies on this Court’s decision in
People v Cole,41 which considered whether constitu-
tional due process requires a trial court to inform a
defendant pleading guilty or no contest to first-degree

36
See, e.g., Kercheval v United States, 274 US 220, 223; 47 S Ct 582;
71 L Ed 1009 (1927).
37
People v Cole, 491 Mich 325, 332; 817 NW2d 497 (2012).
38
North Carolina v Alford, 400 US 25, 31; 91 S Ct 160; 27 L Ed 2d 162
(1970).
39
Smith v O’Grady, 312 US 329, 334; 61 S Ct 572; 85 L Ed 859 (1941).
40
Brady v United States, 397 US 742, 755; 90 S Ct 146; 325 L Ed 2d
747 (1970) (quotation marks and citation omitted).
41
Cole, 491 Mich 325.
234 505 MICH 196 [Apr
DISSENTING OPINION BY ZAHRA, J.

criminal sexual conduct (CSC-I)42 or second-degree

criminal sexual conduct (CSC-II)43 that he or she will
be sentenced to mandatory lifetime electronic monitor-
ing (LEM).44 When Cole was decided, MCR 6.302(B) did
not explicitly mandate that the trial court notify a
defendant that he or she would be subject to manda-
tory LEM under MCL 750.520c(2)(b).45 Central to
Cole’s conclusion that due process required the trial
court to inform a defendant of the LEM requirement is
that the “Legislature chose to include the mandatory
[LEM] requirement in the penalty sections of the
CSC-I and CSC-II statutes, and that both statutes can
be found in the Michigan Penal Code, which describes
criminal offenses and prescribes penalties.”46 Further,
the Cole Court noted that “both [LEM] provisions
provide that ‘the court shall sentence the defendant to
[LEM] . . . .’ ” Last, the Cole Court observed that the
CSC-II statute provides that the sentence of [LEM] is
“[i]n addition to the penalty specified in subdivision
(a),” MCL 750.520c(2)(b), and the CSC-I statute pro-
vides similarly that LEM is “[i]n addition to any other
penalty imposed under subdivision (a) or (b),” MCL
520b(2)(d).47 The Cole Court concluded that “the Leg-
islature intended mandatory [LEM] to be an additional
punishment and part of the sentence itself when re-
quired by the CSC-I or CSC-II statutes.”48

42
MCL 750.520b(2)(d).
43
MCL 750.520c(2)(b).
44
Cole, 491 Mich at 327.
45
See id. at 330 n 4.
46
Id. at 335.
47
Id. at 335-336.
48
Id. at 336.
2020] PEOPLE V WARREN 235
DISSENTING OPINION BY ZAHRA, J.

Cole is simply inapplicable to the instant case be-

cause the provision allowing for the imposition of a
consecutive sentence, MCL 768.7b, is not part of the
sentence itself. Unlike the provision at issue in Cole,
MCL 768.7b is not found in the statute setting forth
the crimes and the applicable penalty, MCL 257.625,
but is found in the Code of Criminal Procedure. Fur-
ther, and more substantively, MCL 768.7b is not poten-
tial punishment that relates to the offenses to which a
defendant pleads guilty. MCL 768.7b is offense-
neutral, and it broadly applies “if a person who has
been charged with a felony, pending the disposition of
the charge, commits a subsequent offense that is a
felony.” In other words, MCL 768.7b does not authorize
additional punishment for conduct that gave rise to
offenses; it only authorizes punishment because a
defendant brazenly committed a second felony in the
relatively short period of time during which a previous
felony charge against that defendant was pending. In
contrast, the LEM requirement considered in Cole was
clearly intended by the Legislature to punish the
defendant for the very offense to which he pleaded
guilty. In this sense, a potential consecutive sentence
under MCL 768.7b is a “collateral” consequence of
pleading guilty to the offenses.
With that said, I will not dispute that the imposition
of consecutive sentences is “a particularly severe ‘pen-
alty.’ ”49 But due process does not require that trial
courts advise defendants in regard to all severe penal-
ties.50 Rather, this advisory responsibility lies primar-
ily with defense counsel, whose effective assistance is

49
Padilla v Kentucky, 559 US 356, 365; 130 S Ct 147; 3176 L Ed 2d 28
(2010) (citation omitted).
50
Id.
236 505 MICH 196 [Apr
DISSENTING OPINION BY ZAHRA, J.

guaranteed to all criminal defendants by the United

States and Michigan Constitutions.51
Defendant next argues that consecutive sentencing
is a direct consequence because the Legislature in-
tended to impose punishment. Again, I will not dispute
that the imposition of consecutive sentences is “a
particularly severe ‘penalty.’ ”52 Nor will I dispute that
the general purpose of consecutive sentencing is to
“enhance the punishment imposed upon those who
have been found guilty of more serious crimes and who
repeatedly engage in criminal acts.”53 More specific to
this case, I agree with defendant that
[t]he intended effect of § 7b can best be seen by analyzing
the deterrence situation that exists before and after a
felony has been charged. In general, once a criminal
defendant has been charged with a felony, the level of
deterrence against his commission of a second felony
drops. Section 7b restores the level of deterrence to its
pre-charge plateau.[54]

The fact nonetheless remains that consecutive

sentencing was merely a possibility at the plea hear-
ing. The discretionary authority to impose consecutive
sentences does not represent a definite, immediate,
or automatic effect because it depends on the trial
court’s later exercise of discretion.55 Only after the

51
5 LaFave et al, Criminal Procedure (4th ed), § 21.4(d) (noting that a
common thread among the cases rejecting due-process challenges “is
that defense counsel should be expected to discuss with his client the
range of risks attendant his plea”).
52
Padilla, 559 US at 365 (citation omitted).
53
People v Smith, 423 Mich 427, 445; 378 NW2d 384 (1995).
54
People v Williams, 89 Mich App 633, 637; 280 NW2d 617 (1979).
55
A solid majority of federal circuit courts agrees. See, e.g., United
States v Ocasio-Cancel, 727 F3d 85, 90 (CA 1, 2013); Wilson v McGinnis,
413 F3d 196, 200 (CA 2, 2005); Paradiso v United States, 482 F2d 409,
2020] PEOPLE V WARREN 237
DISSENTING OPINION BY ZAHRA, J.

court considers the PSIR and the particular circum-

stances of a defendant’s personal and criminal history
can the court fashion an individualized sentence that,
in the court’s discretion, may merit consecutive sen-
tences.
This is not an unusual practice. Many of the deci-
sions a trial court makes following a defendant’s entry
of a guilty plea have a substantial influence on a
defendant’s ultimate sentence. For instance, a court’s
sentencing guidelines scoring decisions later inform a
defendant’s ultimate sentence. Likewise, the trial
court may exercise discretion by sentencing a defen-
dant within or perhaps outside the sentencing guide-
lines. In my view, the possibility of consecutive sen-
tences pursuant to MCL 768.7b is a “collateral”
consequence of defendant’s guilty pleas, not a “direct
result” of the guilty pleas, because the trial court had
discretion whether to impose consecutive sentences.

IV. CONCLUSION

The plain language of MCR 6.302(B) does not sup-

port the conclusion that trial courts must advise crimi-
nal defendants that sentences may potentially be im-
posed consecutively to one another. Further, I disagree
with the majority’s decision to add by judicial construc-
tion that which this Court has repeatedly declined to
add in drafting MCR 6.302(B). Lastly, the possibility of
consecutive sentences pursuant to MCL 768.7b is a
“collateral” consequence of defendant’s guilty pleas,
415 (CA 3, 1973); United States v Fentress, 792 F2d 461, 465 (CA 4,
1986); United States v Saldana, 505 F2d 628, 629 (CA 5, 1974); United
States v Gaskin, 587 F Appx 290, 297-298 (CA 6, 2014); Faulisi v
Daggett, 527 F2d 305, 309 (CA 7, 1975); Clemmons v United States, 721
F2d 235, 238 (CA 8, 1983); United States v Rubalcaba, 811 F2d 491, 494
(CA 9, 1987); United States v Hurlich, 293 F3d 1223, 1231 (CA 10, 2002);
United States v Humphrey, 164 F3d 585, 587-588 (CA 11, 1999).
238 505 MICH 196
DISSENTING OPINION BY ZAHRA, J.

not a “direct result” of the guilty pleas, because the

trial court had discretion whether to impose consecu-
tive sentences. Accordingly, due process did not require
that the trial court inform defendant that he was
subject to consecutive sentencing. I respectfully dis-
sent.

VIVIANO, J., concurred with ZAHRA, J.

 PEOPLE V WANG 239

PEOPLE v WANG

Docket No. 158013. Argued on application for leave to appeal

November 7, 2019. Decided May 13, 2020.
Xun Wang was convicted following a bench trial in the Ingham
Circuit Court, Rosemarie E. Aquilina, J., of two counts of Medic-
aid fraud under MCL 400.607 of the Medicaid False Claim Act
(MFCA), 400.601 et seq., and one count of unauthorized practice
of a health profession under MCL 333.16294 of the Public Health
Code, 333.1101 et seq. Defendant was from China, where she had
previously earned a medical degree and completed two years of a
three-year residency program. She moved to the United States in
2001, after which she earned a Ph.D. in basic medical science. In
2013, defendant began a two-month student rotation through the
AmeriClerkships program working in the Livernois Family
Clinic, which was owned by Dr. Murtaza Hussain. After complet-
ing her student rotation, defendant volunteered at the clinic
before eventually becoming a part-time employee. Notwithstand-
ing her education in the United States and abroad, defendant was
never licensed to practice in a health profession in this country.
The Michigan Department of the Attorney General’s Health Care
Fraud Division discovered that a high volume of narcotics pre-
scriptions were being written at the clinic, and in 2014, the
department conducted an investigation, during which Drew
Macon and Lorrie Bates, special agents with the department,
separately went to the clinic while posing as patients with
Medicaid benefits. Defendant saw both agents when they posed
as patients, identified herself as Hussain’s assistant, and took
written notes of their medical histories. Defendant also per-
formed physical examinations, answered their questions, and
wrote prescriptions for both agents on a prescription pad that
Hussain had previously signed, including a prescription for
Ambien, a Schedule 4 controlled substance. The patients’ notes
were entered into the clinic’s computer system and were elec-
tronically signed by Hussain; the notes indicated that both
defendant and Hussain had seen the agents. The Medicaid
processing system reflected that claims were submitted for both
agents’ treatment and were paid to Hussain for a total of $260.
Defendant was charged with two counts of Medicaid fraud under
240 505 MICH 239 [May

MCL 400.607 and one count of unauthorized practice of a health

profession under MCL 333.16294. The trial court sentenced her to
concurrent terms of 365 days in jail for each conviction, which
was suspended upon the successful completion of five years’
probation and the payment of $106,454 in fines and costs.
Defendant appealed. In an unpublished per curiam opinion
issued on May 10, 2018 (Docket No. 336673), the Court of
Appeals, METER, P.J., and GADOLA and TUKEL, JJ., affirmed defen-
dant’s convictions but vacated the trial court’s imposition of fines
and remanded for resentencing to allow the trial court to articu-
late why the amount assessed in fines was proportionate. Defen-
dant sought leave to appeal in the Supreme Court, and the
Supreme Court ordered and heard oral argument on whether to
grant the application or take other action. 503 Mich 987 (2019).
In an opinion by Justice ZAHRA, joined by Chief Justice
MCCORMACK and Justices VIVIANO, BERNSTEIN, CLEMENT, and
CAVANAGH, the Supreme Court, in lieu of granting leave to appeal,
held:
Defendant was not a licensed health professional and therefore
was categorically not authorized to dispense prescriptions to pa-
tients; accordingly, the lower courts did not err by determining that
there was sufficient evidence to convict defendant of the unauthor-
ized practice of a health profession under MCL 333.16294. How-
ever, the evidence presented in this case did not establish that
defendant was aware or should have been aware that the patients
at issue were Medicaid beneficiaries and that their treatment was
substantially certain to cause the payment of a Medicaid benefit
under MCL 400.607; therefore, defendant’s convictions of Medicaid
fraud were reversed.
1. MCL 333.16294 provides, in pertinent part, that except as
provided in MCL 333.16215 (the delegation exception), an indi-
vidual who practices or holds himself or herself out as practicing
a health profession regulated by Article 15 of the Public Health
Code without a license or registration is guilty of a felony. The
practice of medicine is a “health profession” within the meaning of
MCL 333.16294 because it is regulated and licensed under Article
15. The delegation exception outlined in MCL 333.16215(1) pro-
vides that a licensee who holds a license other than a health
profession subfield license may delegate to a licensed or unli-
censed individual who is otherwise qualified by education, train-
ing, or experience the performance of selected acts, tasks, or
functions when the acts, tasks, or functions fall within the scope
of practice of the licensee’s profession and will be performed
under the licensee’s supervision. MCL 333.16215(1) further pro-
2020] PEOPLE V WANG 241

vides that a licensee shall not delegate an act, task, or function

under MCL 333.16215 if the act, task, or function, under stan-
dards of acceptable and prevailing practice, requires the level of
education, skill, and judgment required of the licensee. In this
case, defendant argued that the delegation exception permitted
her conduct. However, the delegation exception had no applica-
tion because defendant engaged in the performance of functions
that could not be delegated. Specifically, the delegation exception
did not countenance defendant’s issuance of prescriptions for
controlled substances. Under MCL 333.17708(3), a prescription
generally means an order by a prescriber to fill, compound, or
dispense a drug or device, and MCL 333.17708(2) defines “pre-
scriber,” in pertinent part, as a licensed health professional.
Defendant stipulated that she was not licensed to practice a
health profession; therefore, defendant was categorically not
authorized to dispense prescriptions to patients. Accordingly, the
lower courts did not err by determining that there was sufficient
evidence to convict defendant of the unauthorized practice of a
health profession.
2. Under MCL 400.607(1), a person shall not make or present
or cause to be made or presented to an employee or officer of this
state a claim under the Social Welfare Act, MCL 400.1 et seq.,
upon or against the state, knowing the claim to be false. To
sustain a conviction for Medicaid fraud, the prosecution must
therefore prove (1) the existence of a claim, (2) that the accused
makes, presents, or causes to be made or presented to the state or
its agent, (3) the claim is made under the Social Welfare Act,
(4) the claim is false, and (5) the accused knows the claim is false.
MCL 400.602(f) provides that “knowing” and “knowingly” mean
that a person is in possession of facts under which he or she is
aware or should be aware of the nature of his or her conduct and
that his or her conduct is substantially certain to cause the
payment of a Medicaid benefit. “Knowing” and “knowingly” in-
clude acting in deliberate ignorance of the truth or falsity of facts
or acting in reckless disregard of the truth or falsity of facts. Proof
of specific intent to defraud is not required. Additionally, intent
and knowledge can be inferred from one’s actions, and when
knowledge is an element of an offense, it includes both actual and
constructive knowledge. The actual- or constructive-knowledge
element requires knowledge of both the falseness of a claim and
that the claim is substantially certain to cause payment of a
benefit. In this case, a defense witness who was an employee of
the clinic involved in Medicaid billing testified that defendant had
no involvement in the billing process. Defendant testified that she
was aware that some of the patients at the clinic were Medicaid
242 505 MICH 239 [May

patients but that she did not pay attention to her patients’
insurance coverage. Furthermore, the prosecution presented no
evidence that defendant was trained in or otherwise possessed
knowledge of the clinic’s billing practices. Hussain also testified
that billing was not discussed with individuals who came to the
clinic through the AmeriClerkships program. Therefore, the evi-
dence in this case did not demonstrate actual or constructive
knowledge that defendant’s conduct was substantially certain to
cause the payment of a Medicaid benefit. There was no evidence
that defendant had possession of a paper chart with the patients’
Medicaid status or that defendant was aware of any particular
patient’s insurance status. The trial court improperly imputed
knowledge to defendant with regard to Medicaid billing. The
critical inquiry was whether defendant had knowledge from
which she was aware or should have been aware that her conduct
in treating Macon and Bates was substantially certain to cause
the payment of a Medicaid benefit; general knowledge that some
source of insurance will be billed is simply not enough. Accord-
ingly, the trial court’s findings were speculative and not reason-
ably drawn inferences from the evidence that the trial court found
determinative. The Court of Appeals likewise erred in its deter-
mination that defendant’s general knowledge of the American
healthcare system or her general knowledge that the clinic was
not a free clinic provided evidence that defendant had satisfied
the “knowing” element of a Medicaid fraud conviction. The
evidence presented in this case did not establish that defendant
was aware or should have been aware that the patients at issue,
i.e., the agents, were Medicaid beneficiaries and that their
treatment was substantially certain to cause the payment of a
Medicaid benefit. Finally, there was no evidence presented that
defendant should have familiarized herself with the insurance
status of clinic patients. Therefore, the evidence did not support a
finding that defendant acted in deliberate ignorance of the truth
or falsity of facts or acted in reckless disregard of the truth or
falsity of facts.
Defendant’s conviction for the unauthorized practice of a
health profession affirmed, defendant’s convictions of Medicaid
fraud reversed, and case remanded to the Ingham Circuit Court
in accordance with the Court of Appeals’ previous judgment to
analyze the proportionality of the fines assessed against defen-
dant.
Justice VIVIANO, concurring, agreed with the majority’s deci-
sion to affirm defendant’s conviction for unauthorized practice of
a health profession and to reverse defendant’s convictions for
2020] PEOPLE V WANG 243

Medicaid fraud but wrote separately to raise some concerns

regarding the MFCA’s criminal-liability provisions. Consider-
ation of how the MFCA developed over time, and comparison of its
provisions to a somewhat analogous federal statute, the False
Claims Act, 31 USC 3729(a)(1)(B), revealed a number of problem-
atic aspects of the MFCA. The Michigan Legislature engrafted
civil-liability concepts from the federal act onto preexisting lan-
guage in the MFCA without, it seems, careful thought about how
and whether those concepts fit in the criminal-liability context.
Justice VIVIANO therefore wrote to encourage the Legislature to
consider amending the MFCA to clarify its meaning.
Justice MARKMAN, concurring in part and dissenting in part,
agreed that defendant’s conviction of the unlawful practice of
medicine should be affirmed and that defendant did not possess
actual knowledge that the agents were purporting to be Medicaid
patients, but he would have affirmed defendant’s convictions of
Medicaid fraud in view of the definition of “knowing” set forth in
MCL 400.602(f) and the appellate standard of review governing
defendant’s sufficiency-of-the-evidence challenge. When consider-
ing a sufficiency-of-the-evidence challenge, a reviewing court is
required to draw all reasonable inferences and make credibility
choices in support of the verdict, and because it can be difficult to
prove a defendant’s state of mind on issues such as knowledge
and intent, minimal circumstantial evidence suffices to establish
the defendant’s state of mind, which can be inferred from all the
evidence presented. The definition of “knowing” and “knowingly”
in MCL 400.602(f) mirrors the federal definition of those terms
within the context of false claims against the government and
includes acting in “deliberate ignorance of the truth or falsity of
facts.” “Deliberate ignorance” exists when the evidence indicates
that the defendant, knowing or suspecting that he or she is
involved in “shady dealings,” takes steps to make sure that he or
she does not acquire full or exact knowledge of the nature and
extent of those dealings. Defendant in this case had seven years
of medical training in China and studied and worked in medical-
related fields since she entered the United States in 2001,
including spending nine months at the Livernois Family Clinic
prior to the conduct underlying her criminal conviction. More-
over, she knew of, but had not satisfied, the requirements for
obtaining a license to lawfully practice medicine so as to allow
billing for her services. Given her experience and her efforts to
obtain a license, defendant was or should have been aware of four
facts such that a reasonable trier of fact could conclude that
defendant acted with deliberate ignorance of the ultimate fact
that a false claim would be submitted to Medicaid as a result of
244 505 MICH 239 [May

her services: (1) that it was unlawful for her to practice medicine;
(2) that a bill would be generated for her services, even when
Dr. Hussain was not present; (3) that it was unlawful and fraudu-
lent to bill Medicaid for her services; and (4) that a significant
percentage of the clinic’s patients were Medicaid recipients, such
that the clinic would bill the government for her services. From
these facts, a reasonable trier of fact could conclude that defendant
knew that her employment at the clinic was an integral part of
some illicit scheme. Defendant then avoided three readily available
means of determining whether a given patient was a Medicaid
patient: (1) defendant could have asked the clinic receptionist
whether a patient was a Medicaid recipient, (2) defendant could
have reviewed the patients’ paper charts, which contained insur-
ance information and a photocopy of their Medicaid cards, and
(3) defendant could have expressly asked the patients themselves
whether they were Medicaid patients. Therefore, Justice MARKMAN
would have affirmed defendant’s convictions of Medicaid fraud.

FRAUD — MEDICAID FRAUD — MEDICAID FALSE CLAIM ACT — KNOWLEDGE

ELEMENT.
To sustain a conviction for Medicaid fraud under the Medicaid False
Claim Act, MCL 400.601 et seq., the prosecution must prove
(1) the existence of a claim, (2) that the accused makes, presents,
or causes to be made or presented to the state or its agent, (3) the
claim is made under the Social Welfare Act, MCL 400.1 et seq.,
(4) the claim is false, and (5) the accused knows the claim is false;
when reviewing the element of knowledge, the critical inquiry is
whether a defendant was aware or should have been aware that
his or her conduct was substantially certain to cause the payment
of a Medicaid benefit; general knowledge that some source of
insurance will be billed for medical treatment is insufficient.

Dana Nessel, Attorney General, Fadwa A.

Hammoud, Solicitor General, B. Eric Restuccia, Chief
Legal Counsel, and Brendan Maturen, Assistant Attor-
ney General, for the people.

Patricia A. Maceroni for defendant.

Amici Curiae:

Kerr, Russell and Weber, PLC (by Joanne Geha

Swanson) for the Michigan State Medical Society and
the American Medical Association.
2020] PEOPLE V WANG 245
OPINION OF THE COURT

ZAHRA, J. Defendant was convicted after a bench trial

of two counts of Medicaid fraud under MCL 400.607 and
one count of unauthorized practice of a health profes-
sion under MCL 333.16294. The Court of Appeals af-
firmed the convictions but vacated the imposition of
fines and remanded for resentencing to allow the trial
court to articulate why the amount assessed in fines was
proportionate.1 Defendant now appeals in this Court,
challenging the sufficiency of the evidence. We affirm
defendant’s conviction of unauthorized practice of a
health profession because defendant engaged in the
nondelegable task of prescribing controlled substances.
We reverse defendant’s convictions of Medicaid fraud
because the evidence presented at trial and relied upon
by the trial court did not support the conclusion that
defendant knew or should have known that the nature
of her conduct was substantially certain to cause the
payment of a Medicaid benefit.2 Lastly, we remand this
matter to the trial court for further proceedings con-
sistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

Defendant is from China, where she previously

earned a medical degree and completed a two-year
residency. She moved to the United States in 2001,
after which she earned a Ph.D. in basic medical science
from Purdue University’s veterinary school and began
work as a medical researcher at the University of
Michigan’s medical school. In 2013, she began a two-
month student rotation through the AmeriClerkships
program working in the Livernois Family Clinic, which

1
People v Wang, unpublished per curiam opinion of the Court of
Appeals, issued May 10, 2018 (Docket No. 336673), p 9.
2
MCL 400.607(1); MCL 400.602(f).
246 505 MICH 239 [May
OPINION OF THE COURT

was owned by Dr. Murtaza Hussain. After completing

her student rotation, defendant volunteered at the
clinic before eventually becoming a part-time em-
ployee. Notwithstanding her education in the United
States and abroad, defendant has never been licensed
to practice in a health profession in this country.
The Michigan Department of the Attorney General’s
Health Care Fraud Division discovered that a high
volume of narcotics prescriptions were being written at
the clinic. In 2014, the department conducted an in-
vestigation of the clinic, during which Drew Macon and
Lorrie Bates, special agents with the department,
separately went to the clinic while posing as patients
with Medicaid benefits.
Macon went to the clinic in August 2014, posing as a
new patient. He presented a Medicaid insurance card
during the check-in process. When defendant called
Macon into a patient room, she weighed him, took his
blood pressure, and obtained information regarding
the reason for his visit and his medical history. Macon
informed defendant that he had attention deficit dis-
order and asthma, and Macon requested prescriptions
for vitamin D, an inhaler, Klonopin,3 and Adderall.4
Defendant left the room for approximately eight min-
utes. When she returned, she stated that Macon would
need to forward his out-of-state medical records to the
office to receive Adderall and gave Macon a release
form and instructions. Defendant then gave Macon
prescriptions for vitamin D, Klonopin, and the inhaler.
The signature on the prescriptions was Hussain’s.

3
Klonopin is the trade name of clonazepam, a Schedule 4 controlled
substance. See MCL 333.7218(1)(a).
4
Adderall is an amphetamine, a Schedule 1 controlled substance.
See MCL 333.7212(1)(c).
2020] PEOPLE V WANG 247
OPINION OF THE COURT

In December 2014, Bates went to the clinic, also

posing as a new patient. A medical technician accom-
panied Bates into an exam room and noted Bates’s
complaints of headaches and insomnia. The medical
technician took Bates’s blood pressure, medical history,
and made some written notes on a piece of paper
attached to a clipboard. Taking the clipboard, the
medical technician left after informing Bates that the
doctor would be in shortly. Defendant, wearing a
stethoscope and a long, white lab coat, was the next
person to enter the exam room. Defendant stated that
she was Hussain’s assistant and asked about the
reason for Bates’s visit. When Bates responded that
she was having difficulty sleeping and combating head-
aches, defendant obtained further information about
these complaints. Defendant also took written notes of
Bates’s medical history. Defendant then asked Bates if
she had taken medication for the headaches and stated
that medication could be provided to help. Bates de-
clined a Pap smear, and at that point, defendant left
the room for approximately six minutes. When defen-
dant returned, she inquired as to Bates’s pharmacy
preference. Bates responded, and defendant typed
something into her cellular phone before informing
Bates that a prescription had been sent to a pharmacy.
A physical examination was then performed, in which
defendant shined a flashlight into Bates’s eyes and had
Bates alternate standing and sitting down. When
Bates asked whether defendant was a doctor, defen-
dant responded, “No, I’m just his assistant. He’s not
here today.” At this point, defendant gave some details
about the headache medication that had just been
prescribed. Defendant asked if there was “anything
else,” and Bates called attention to her insomnia, to
which defendant replied with recommendations of tak-
ing melatonin, drinking milk before going to sleep, and
248 505 MICH 239 [May
OPINION OF THE COURT

spending time relaxing. Defendant added that if these

techniques were unsuccessful, Bates could use a low
dose of a “controlled medication.” Defendant produced
a prescription pad, which had been previously signed
by Hussain, and wrote a prescription for Ambien.5
Before the interaction concluded, Bates asked how long
defendant had been a doctor. Defendant responded
that she had been a doctor for “one year.” Lastly,
defendant offered Bates advice regarding “sleep hy-
giene.”
Both agents’ patient progress notes were entered
into the clinic’s computer system and were electroni-
cally signed by Hussain. The notes indicated that both
defendant and Hussain had seen the agents. The
Medicaid processing system reflected that claims were
submitted for both agents’ treatment and were paid to
Hussain for a total of $260.
A search warrant was executed at the clinic. There,
agents found prescription pads that were presigned by
Hussain. Defendant was not present during the
search, and so Bates went to defendant’s home. There,
defendant agreed to speak with agents. She stated that
she was not a doctor and that she only worked under
Hussain’s guidance. She added that if she saw a
patient when Hussain was not in the office, she would
contact him via phone so that he could make final
decisions.
Defendant was charged with two counts of Medicaid
fraud under MCL 400.607 and one count of unauthor-
ized practice of a health profession under MCL
333.16294. Defendant waived her right to a trial by
jury, and a bench trial followed. The parties stipulated

5
Ambien, which is a brand name for Zolpidem, is a Schedule 4
controlled substance. Mich Admin Code, R 338.3123(1)(hhh); Bloomfield
Twp v Kane, 302 Mich App 170, 184; 839 NW2d 505 (2013).
2020] PEOPLE V WANG 249
OPINION OF THE COURT

that defendant had no license to practice in a health

profession in 2014 or 2015 and that Hussain was not
present at the clinic when Macon and Bates visited.
Defendant was found guilty of all charges. In
January 2017, the trial court sentenced her to concur-
rent terms of 365 days in jail for each conviction, which
was suspended upon the successful completion of five
years’ probation and the payment of $106,454 in fines
and costs.
In her appeal of right, defendant challenged the
sufficiency of the evidence supporting her convictions
as well as the proportionality of her fines. In an
unpublished per curiam opinion, the Court of Appeals
affirmed her convictions but vacated the trial court’s
imposition of fines and remanded for resentencing to
allow the trial court to articulate why the amount
assessed in fines was proportionate.6 Defendant now
seeks leave to appeal in this Court, and on March 27,
2019, this Court entered an order directing oral argu-
ment on the application and requiring the parties to
address:
(1) whether the statutory exception in MCL 333.16294 is
an element of the offense for which the prosecutor has
the burden of proof, see People v Rios, 386 Mich 172[; 191
NW2d 297] (1971); but see People v Langlois, 325 Mich
App 236[; 924 NW2d 904] (2018);[7] (2) if the statutory
exception is an element of the offense, whether the Court
of Appeals erred in holding that the evidence was
sufficient to sustain the defendant’s conviction under
MCL 333.16294 and specifically, whether the Court of
Appeals erred in concluding that the defendant’s actions

6
Wang, unpub op at 9.
7
We need not address this question now because defendant engaged
in the performance of tasks that simply could not be delegated at all.
Thus, whether the delegation exception is an element of the unauthor-
ized practice of a health profession has no bearing on our opinion.
250 505 MICH 239 [May
OPINION OF THE COURT

were consistent with the practice of medicine and there-

fore could not be delegated to her under MCL 333.16215;
and (3) if the statutory exception is not an element of the
offense, whether defense counsel was ineffective for failing
to raise a delegation defense and bring the relevant
statutory provisions to the trial court’s attention. In
addition, the appellant shall address whether the evi-
dence was sufficient to sustain the defendant’s convictions
under MCL 400.607(1), and specifically whether the evi-
dence was sufficient to show that the defendant was in
possession of facts under which she was aware or should
have been aware that her conduct was substantially
certain to cause the payment of a Medicaid benefit. See
MCL 400.602(f).[8]

II. ANALYSIS

A. STANDARD OF REVIEW

Defendant opted for a bench trial, waiving her right

to a trial by jury. Bench trials stand in sharp contrast
to jury trials. A jury is required to consider all the
evidence and to render a unanimous verdict, without
the need for explanation.9 In a bench trial, however,
the trial court is obligated to “find the facts specially,
state separately its conclusions of law, and direct entry
of the appropriate judgment. The court must state its
findings and conclusions on the record or in a written
opinion made a part of the record.”10 Because of this,
reviewing courts are provided greater insight into the
specific evidence found by the trial court to support
verdicts in bench trials.
Defendant contends that the evidence presented at
trial was insufficient to sustain her convictions.

8
People v Wang, 503 Mich 987, 987 (2019).
9
See MCR 6.410(B).
10
MCR 6.403. See also People v Legg, 197 Mich App 131, 134; 494
NW2d 797 (1992).
2020] PEOPLE V WANG 251
OPINION OF THE COURT

Challenges to the sufficiency of the evidence are re-

viewed de novo.11 “In evaluating defendant’s claim
regarding the sufficiency of the evidence, this Court
reviews the evidence in a light most favorable to the
prosecutor to determine whether any trier of fact could
find the essential elements of the crime were proven
beyond a reasonable doubt.”12 The prosecution submits
that defendant’s convictions are largely supported by
circumstantial evidence. “Circumstantial . . . evidence
is evidence of a fact, or a chain of facts or circum-
stances, that, by indirection or inference, carries con-
viction to the mind and logically or reasonably estab-
lishes the fact to be proved.”13 Circumstantial evidence
may sustain criminal convictions, but “the circumstan-
tial proof must facilitate reasonable inferences of cau-
sation, not mere speculation.”14

B. UNAUTHORIZED PRACTICE OF A HEALTH PROFESSION

Under MCL 333.16294, “[e]xcept as provided in

section 16215 [known as the delegation exception], an
individual who practices or holds himself or herself out
as practicing a health profession regulated by this
article without a license or registration . . . is guilty of
a felony.”15 The practice of medicine is a “health pro-
fession” within the meaning of MCL 333.16294
because it is regulated and licensed under the Public-
Health Code.16 The delegation exception outlined in
MCL 333.16215(1) provides that

11
People v Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011).
12
People v Robinson, 475 Mich 1, 5; 715 NW2d 44 (2006).
13
4 Michigan Pleading & Practice (2d ed), § 36:313, pp 69-70 (cita-
tions omitted).
14
Id. at 70.
15
Emphasis added.
16
MCL 333.1101 et seq. The “practice of medicine” is defined as “the
252 505 MICH 239 [May
OPINION OF THE COURT

a licensee who holds a license other than a health

profession subfield license may delegate to a licensed or
unlicensed individual who is otherwise qualified by edu-
cation, training, or experience the performance of se-
lected acts, tasks, or functions where the acts, tasks, or
functions fall within the scope of practice of the licensee’s
profession and will be performed under the licensee’s
supervision. A licensee shall not delegate an act, task, or
function under this section if the act, task, or function,
under standards of acceptable and prevailing practice,
requires the level of education, skill, and judgment
required of the licensee under this article.

Defendant argues that the delegation exception per-

mitted her conduct in this case. But the delegation
exception has no application here because defendant
engaged in the performance of functions that could
not be delegated. Specifically, the delegation excep-
tion does not countenance defendant’s issuance of
prescriptions for controlled substances.
Simply stated, defendant’s act of prescribing
Ambien, a Schedule 4 controlled substance,17 to Bates
was a nondelegable action as a matter of law. Michigan
statutory authority, while sometimes difficult to parse,
supports this conclusion. A “prescription” in this state
generally “means an order by a prescriber to fill,
compound, or dispense a drug or device . . . .”18 A pre-
scriber, critically, means

diagnosis, treatment, prevention, cure, or relieving of a human dis-

ease, ailment, defect, complaint, or other physical or mental condition,
by attendance, advice, device, diagnostic test, or other means, or
offering, undertaking, attempting to do, or holding oneself out as able
to do, any of these acts.” MCL 333.17001(1)(j).
17
Mich Admin Code, R 338.3123(1)(hhh); Bloomfield Twp, 302 Mich
App at 184.
18
MCL 333.17708(3) (emphasis added).
2020] PEOPLE V WANG 253
OPINION OF THE COURT

a licensed dentist, a licensed doctor of medicine, a licensed

doctor of osteopathic medicine and surgery, a licensed
doctor of podiatric medicine and surgery, a licensed phy-
sician’s assistant, a licensed optometrist . . . , an advanced
practice registered nurse . . . , a licensed veterinarian, or
another licensed health professional acting under the
delegation and using, recording, or otherwise indicating
the name of the delegating licensed doctor of medicine or
licensed doctor of osteopathic medicine and surgery.[19]

Defendant stipulated that she was not licensed to

practice a health profession in 2014 or 2015.20 Thus,
under Michigan law, defendant was categorically not
authorized to dispense prescriptions to patients. When
she prescribed Ambien to treat Bates’s reported diffi-
culty sleeping, she attempted to perform a task that
“requires the level of education, skill, and judgment
required of” a licensed physician.21 Such tasks are
nondelegable, and the lower courts therefore did not
err by determining that there was sufficient evidence
to convict defendant of the unauthorized practice of a
health profession.22

C. MEDICAID FRAUD

Defendant next claims that the evidence was insuf-

ficient “to show that the defendant was in possession of
facts under which she was aware or should have been

19
MCL 333.17708(2).
20
Although defendant introduced herself to Bates as Hussain’s “as-
sistant,” defendant takes care to note, in her supplemental brief, that
she did not say that she was a “physician assistant,” which is among the
types of professionals that, if licensed, may qualify as a “prescriber”
under MCL 333.17708(2).
21
See MCL 333.16215(1); MCL 333.17708(2).
22
See MCL 333.16215(1). Defendant also raised the issue of ineffec-
tive assistance of trial counsel for failure to call the delegation exception
to the trial court’s attention. Of course, because defendant could not
prevail under the delegation exception, trial counsel cannot have been
254 505 MICH 239 [May
OPINION OF THE COURT

aware that her conduct was substantially certain to

cause the payment of a Medicaid benefit.”23 The Med-
icaid False Claim Act24 provides that “[a] person shall
not make or present or cause to be made or presented
to an employee or officer of this state a claim under the
social welfare act, 1939 PA 280, MCL 400.1 to
400.119b, upon or against the state, knowing the claim
to be false.”25 To sustain a conviction for Medicaid
fraud, the prosecution must therefore prove:
(1) the existence of a claim, (2) that the accused makes,
presents, or causes to be made or presented to the state or
its agent, (3) the claim is made under the Social Welfare
Act . . . , (4) the claim is false . . . , and (5) the accused
knows the claim is false . . . .[26]

ineffective for failing to call it to the trial court’s attention. People v

Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010) (“Failing to
advance a meritless argument or raise a futile objection does not
constitute ineffective assistance of counsel.”).
23
Wang, 503 Mich at 987.
24
MCL 400.601 et seq.
25
MCL 400.607(1) (emphasis added).
26
People v Orzame, 224 Mich App 551, 558; 570 NW2d 118 (1997),
citing In re Wayne Co Prosecutor, 121 Mich App 798, 801-802; 329 NW2d
510 (1982). Notably, the fourth and fifth elements of Medicaid fraud as
outlined by Orzame initially required that a claim be “false, fictitious, or
fraudulent, and . . . [that] the accused knows the claim is false, ficti-
tious, or fraudulent.” Orzame, 224 Mich App at 558 (emphasis added).
The emphasized language stems from the original version of
MCL 400.607 as enacted in 1977. See 1977 PA 72, effective July 27,
1977; People v American Med Ctrs of Mich, Ltd, 118 Mich App 135, 144;
324 NW2d 782 (1982). That language was removed, however, when
MCL 400.607 was amended in 1984. See 1984 PA 333, effective Decem-
ber 26, 1984; Orzame, 224 Mich App at 558. Even now, after a second
amendment to the statute, see 2008 PA 421, effective January 6, 2009,
all that the statute requires is that a claim be “false” and that the
defendant have knowledge of that falsity, without a distinction for
claims that are “fictitious” or “fraudulent,” as opposed to “false.” Never-
theless, Michigan courts continue to refer to the “fictitious, or fraudu-
lent” language, which has not been a part of MCL 400.607(1) for over
2020] PEOPLE V WANG 255
OPINION OF THE COURT

MCL 400.602(f) provides:

“Knowing” and “knowingly” means that a person is in
possession of facts under which he or she is aware or should
be aware of the nature of his or her conduct and that his or
her conduct is substantially certain to cause the payment of
a medicaid benefit. Knowing or knowingly includes acting
in deliberate ignorance of the truth or falsity of facts or
acting in reckless disregard of the truth or falsity of facts.
Proof of specific intent to defraud is not required.

With regard to the knowledge element of

MCL 400.607(1) and MCL 400.602(f), the Court of
Appeals has explained:
“Intent and knowledge can be inferred from one’s actions
and, when knowledge is an element of an offense, it
includes both actual and constructive knowledge.” People v
American Medical Centers of Michigan, Limited, 118 Mich
App 135, 154; 324 NW2d 782 (1982). Therefore, it is not
problematic that these statutes define “knowing” to include
“should be aware.” Contrary to defendants’ contention, this
actual or constructive knowledge element does not relate
solely to knowledge that a claim is filed. The knowledge
element relates to both “the nature of his or her conduct
and that his or her conduct is substantially certain to cause
the payment of a [Medicaid or] health care benefit.” . . .
Accordingly, the actual or constructive knowledge element
of these offenses appropriately requires knowledge of both
the falseness of a claim and that the claim is substantially
certain to cause payment of a benefit.[27]

30 years. See, e.g., People v Kanaan, 278 Mich App 594, 619; 751 NW2d
57 (2008), quoting Orzame, 224 Mich App at 558; Wang, unpub op at 7. We
take this opportunity to clarify that MCL 400.607(1) now requires, as the
fourth and fifth elements of a viable Medicaid fraud conviction, sufficient
evidence that the claim at issue was false as defined under the Medicaid
False Claim Act, MCL 400.602(d), and that the defendant possessed the
requisite knowledge of that falsity. The Legislature has indicated that
there is no longer a distinction for claims that are “fictitious” or “fraudu-
lent.”
27
People v Perez-DeLeon, 224 Mich App 43, 48-49; 568 NW2d 324
(1997).
256 505 MICH 239 [May
OPINION OF THE COURT

Defense witness Darius Baty was an employee of the

clinic who was involved in Medicaid billing. He testi-
fied that a patient’s insurance status was known to the
front desk staff, the clinical manager, and the billing
staff and that a copy of a patient’s Medicaid card would
be included in the paper chart and could be seen if one
“flipped through the paper chart.” He further testified
that “a good 50 percent” of the clinic’s patients were
Medicaid patients. Importantly, Baty added that defen-
dant had no involvement in the billing process.28
Defendant testified that she was aware that some of
the patients at the clinic were Medicaid patients, but
she “never paid attention for their insurance . . . .”
Defendant explained, “I have this piece of paper,[29]
there’s no Medicaid card on it.” Defendant said that
she thought that insurance information was included
in the clinic’s electronic medical record system but that
she never looked at the medical insurance and did not
know how it would be billed. Macon testified that he
did not know whether defendant had any knowledge of
Medicaid procedures or Medicaid billing and, signifi-
cantly, the prosecution presented no evidence that
defendant was trained in or otherwise possessed
knowledge of the clinic’s billing practices. To the con-
trary, defendant testified that she was never trained in
billing procedures. Further, Macon could not recall
seeing at any time during the investigation any docu-
ments pertaining to Medicaid procedures or billing

28
Unsurprisingly, Baty conceded that everyone, including defendant,
who had contact with a patient “knew that a bill was going to be
generated and sent to somebody so that the clinic could be paid for that
patient visit . . . .”
29
Defendant appears to refer to a piece of paper on which she took
notes during interactions with patients. The other side of this paper
contained billing codes, but defendant testified that she was unfamiliar
with this side of the form.
2020] PEOPLE V WANG 257
OPINION OF THE COURT

that were signed by defendant. Bates likewise did not

identify anyone who claimed that defendant was in-
volved in the Medicaid process at all.
Hussain stated that billing was not discussed with
individuals who came to the clinic through Ameri-
Clerkships. Indeed, during the 22 years in which
Hussain owned the clinic, he never trained foreign
doctors like defendant in billing. Hussain explained
that he was not required to train individuals like
defendant in billing, and so it was “never” done. Even
when defendant became a paid employee—as opposed
to a clerk or volunteer—she was not expected to be
involved in Medicaid billing at all, and nothing pre-
sented at trial suggests that defendant was knowledge-
able or in any way involved in the billing practices of
her employer.
The evidence presented in this case simply does not
demonstrate actual or constructive knowledge that
defendant’s “conduct [was] substantially certain to
cause the payment of a medicaid benefit.”30 As to actual
knowledge, the prosecution relies on evidence that
clinic patients’ charts contained their Medicaid status
and copies of their cards. Nevertheless, there is no
evidence that defendant had possession of the paper
chart, much less that she flipped through it to find the
Medicaid information. Significantly, the trial court
found defendant to be credible and that she possessed
a “truthful nature.” Defendant’s recitation of the evi-
dence is consistent with the other evidence offered at
trial—the video in particular—which appears to show
that defendant had single sheets of paper on the
clipboard with her in the examination room, not a
multipage chart. Moreover, defendant testified that

30
See MCL 400.602(f).
258 505 MICH 239 [May
OPINION OF THE COURT

she was not aware of any particular patient’s insur-

ance status. When reviewing the sufficiency of the
evidence, appellate courts must not interfere with the
fact-finder’s role of deciding credibility.31
Notwithstanding the trial court’s finding that defen-
dant was truthful and credible, the court nonetheless
imputed knowledge to defendant with regard to
Medicaid billing. The trial court on two occasions
declared that “ignorance of the law” is not an excuse.
But the critical question is not whether defendant
knew the law. Instead, it is whether reasonable infer-
ences can be drawn from the circumstantial evidence
to conclude that defendant knew or should have known
that a false claim would be submitted to the state
under the Social Welfare Act. On this point the trial
court found:
There is evidence that at least half of the money—and
it doesn’t matter if it’s half or any other portion, but I
believe the testimony is or was that Livernois Family
Medical Services received about half of their income from
Medicaid.

This is insufficient evidence to sustain defendant’s

convictions. Even assuming that this statistic is accu-
rate and that defendant was aware of it, a high
percentage of Medicaid patients at the clinic does not
establish that defendant had knowledge under which
she was aware or should have been aware that her
conduct in treating Macon and Bates was substantially
certain to cause the payment of a Medicaid benefit.32
The trial court also placed great emphasis on the
fact that defendant knew that the clinic would be
billing an insurance company for medical care:

31
People v Wolfe, 440 Mich 508, 514; 489 NW2d 748 (1992).
32
See MCL 400.602(f).
2020] PEOPLE V WANG 259
OPINION OF THE COURT

[T]he form that defendant used, this encounter form,

Exhibit B, is not the full form, the other side is the billing
form, so defendant clearly knew that there was billing
going on to insurance. That there are multiple forms of
insurance. This was not her only job. She had multiple
experiences. She testified to that. And she clearly knew
that her paycheck was derived from insurance, that insur-
ance was going to be billed, that that’s what her paycheck
was coming from, at least in part—at least in part from
Medicaid.

It is unremarkable that any person employed in the

healthcare industry would know that a variety of
insurance companies will be billed for services ren-
dered. It is equally unremarkable that such person
may infer that his or her employment is funded in part
by the revenue generated by insurance billing. But
such inferred knowledge does not sustain a claim for
Medicaid fraud. Again, the critical inquiry is whether
defendant had knowledge from which she was aware or
should have been aware that her conduct in treating
Macon and Bates was substantially certain to cause
the payment of a Medicaid benefit. General knowledge
that some source of insurance will be billed is simply
not enough. The trial court’s findings are speculative
and not reasonably drawn inferences from the evidence
that the trial court found determinative.
Likewise, the Court of Appeals erred in its determi-
nation that defendant’s general knowledge of the
American healthcare system—as a student, employee,
and patient—or her general knowledge that the clinic
was not a free clinic and that she was a paid employee
provided evidence that defendant had satisfied the
“knowing” element of a Medicaid fraud conviction.
Defendant was charged with two counts of Medicaid
fraud related to claims for two specific individuals. She
cannot be held liable on the basis of the Medicaid
260 505 MICH 239 [May
OPINION OF THE COURT

status of other individuals treated at the clinic in its

day-to-day operation.33 Even viewed in the light most
favorable to the prosecution, the evidence presented
does not appear to establish that defendant was aware
or should have been aware that the patients at issue
were Medicaid beneficiaries and that their treatment
was substantially certain to cause the payment of a
Medicaid benefit.
Finally, we also conclude that there was no evidence
presented that defendant should have familiarized
herself with the insurance status of clinic patients.
Thus, the evidence did not support a finding that
defendant acted “in deliberate ignorance of the truth or
falsity of facts or acting in reckless disregard of the
truth or falsity of facts.”34 Although the prosecution’s
expert testified that defendant could be expected to be
aware of the American healthcare model, the expert
did not testify that defendant should have obtained the
patients’ Medicaid status before, during, or after her
encounter with them. Because defendant was never
trained to examine or alter billing information, and
because her employer did not expect her to become
familiar with this process, it cannot be said that the
ignorance of Medicaid billing procedures was “deliber-
ate” or due to “reckless disregard of the truth or falsity
of facts.”35 From the evidence presented, it appears

33
See People v Schilling, 110 Mich 412, 414; 68 NW 233 (1896) (a
defendant cannot be convicted for crimes other than those charged in
the complaint); MCL 768.32(1) (a defendant may be found guilty of an
offense upon which an indictment was based or of an inferior offense to
the one charged).
34
MCL 400.602(f).
35
In his partial dissent, Justice MARKMAN relies on federal caselaw to
support his belief that defendant acted in deliberate ignorance of
whether claims under the Social Welfare Act were false. But these cases
require, for a finding of deliberate ignorance in the context of federal
2020] PEOPLE V WANG 261
OPINION OF THE COURT

that defendant was not expected to know or become

aware of a patient’s insurance status in the course of
her duties at the clinic. We therefore hold that defen-
dant’s failure to become generally versed in billing
procedures did not establish criminal culpability in
this case.36
healthcare fraud, that the defendant be made aware of a high probabil-
ity of illegal conduct and take active steps to avoid learning of it. See
United States v Delgado, 668 F3d 219, 227 (CA 5, 2012); United States
v Lennartz, 948 F2d 363, 369 (CA 7, 1991); United States v Nazon, 940
F2d 255, 259-260 (CA 7, 1991); United States v Walter-Eze, 869 F3d 891,
909-910 (CA 9, 2017). The same appears to be true in other contexts
requiring an assessment of deliberate ignorance under federal law. See,
e.g., United States v Lara-Velasquez, 919 F2d 946, 952-953 (CA 5, 1990);
United States v Nicholson, 677 F2d 706, 710-711 (CA 9, 1982); United
States v Heredia (Amended Opinion), 483 F3d 913, 917 (CA 9, 2007).
Because the evidence did not establish that defendant was required to
participate in the billing process, trained in billing procedures, or
lawfully required to make herself aware of individual patients’ insur-
ance information, there is no indication that defendant actively sought
to remain ignorant of information she knew to be likely to reveal illegal
conduct. To hold otherwise would, in our view, impose a daunting
standard not only on licensed healthcare professionals but also on those
seeking to become licensed healthcare professionals while working
under the lawful supervision of licensed doctors.
Justice MARKMAN also opines that “[w]hen defendant performed her
services, the only fact unknown to [her] was whether a private insur-
ance company or the state of Michigan would be the victim of a false
claim for her unlicensed services.” But Justice MARKMAN points to no
evidence in support of the notion that defendant knew, at any point, that
the services she provided were not lawful (whether by function of the
delegation exception under MCL 333.16215(1) or otherwise). This, of
course, does not shield her from her conviction for the unauthorized
practice of a health profession. People v Motor City Hosp & Surgical
Supply, Inc, 227 Mich App 209, 215; 575 NW2d 95 (1997), citing Cheek
v United States, 498 US 192, 199; 111 S Ct 604; 112 L Ed 2d 617 (1991)
(ignorance of the law is no defense from a criminal prosecution). Even
so, that we affirm defendant’s conviction for the unauthorized practice of
a health profession does not inherently equate with a determination
that she knew of some “ ‘shady dealings’ that were certain to result in
the generation of false bills.”
36
Justice MARKMAN offers three means by which defendant might have
made herself aware of Macon’s and Bates’s Medicaid status: (1) she
262 505 MICH 239 [May
CONCURRING OPINION BY VIVIANO, J.
III. CONCLUSION

For the reasons outlined in this opinion, we affirm

the conviction for the unauthorized practice of a health
profession but reverse the convictions for Medicaid
fraud. The case shall be remanded to the Ingham
Circuit Court in accordance with the Court of Appeals’
previous judgment to analyze the proportionality of the
fines assessed against defendant. We do not retain
jurisdiction.

MCCORMACK, C.J., and VIVIANO, BERNSTEIN, CLEMENT,

and CAVANAGH, JJ., concurred with ZAHRA, J.

VIVIANO, J. (concurring). I agree with the majority’s

decision to affirm defendant’s conviction for unau-
thorized practice of a health profession under
MCL 333.16294 and to reverse defendant’s convic-
tions for Medicaid fraud under MCL 400.607 of the
Medicaid False Claim Act (MFCA). I write separately to
raise some concerns regarding the latter statute. For
defendant’s conduct to fall within the fraud provisions of
the MFCA, the prosecution must prove that it was
“knowing,”1 which the act defines as meaning, among

could have asked the clinic receptionist about the agents’ Medicaid
status, (2) she could have reviewed their paper charts, and (3) she could
have asked Macon and Bates themselves whether they were Medicaid
recipients. Nevertheless, the evidence in this case did not establish that
defendant should have inquired as to patients’ insurance status with the
clinic receptionist or with the patients themselves. Thus, the mere fact
that defendant could have asked is irrelevant. Justice MARKMAN’s point
about the Medicaid information in each patients’ chart is well-taken, but
it does not acknowledge that the evidence in this case did not show that
defendant was ever in possession of paper charts when providing care for
Macon and Bates. Additionally, the evidence did not show that, if
defendant had those charts, she would have been required to flip
through the charts to examine each patients’ Medicaid information.
1
MCL 400.607(1).
2020] PEOPLE V WANG 263
CONCURRING OPINION BY VIVIANO, J.

other things, that the defendant possesses “facts under

which he or she is aware or should be aware of the
nature of his or her conduct and that his or her conduct
is substantially certain to cause the payment of a
medicaid benefit.”2 As the majority explains, the evi-
dence was insufficient to show that defendant knew or
should have known a Medicaid payment was substan-
tially certain to result from her conduct. At most, in my
view, the record demonstrates that defendant, by re-
cording her treatment notes and entering them into
the clinic’s computer system, made false records that
were material to a false claim. That evidence would
appear to be sufficient to establish civil liability under
a provision in a somewhat analogous federal statute,
the False Claims Act (Federal Act), 31 USC
3729(a)(1)(B). However, the MFCA—under which de-
fendant was criminally prosecuted—contains no provi-
sion prohibiting the making or use of a false record
that is “material to a false or fraudulent claim.” Thus,
the majority properly reverses defendant’s Medicaid
fraud convictions.
Given the scope of the parties’ arguments and the
evidence in the record, the result in this case is
relatively clear. But in analyzing the criminal-liability
provisions of the MFCA, a number of problematic
aspects of the statute have become evident to me.
Although they need not be resolved to dispose of this
case, I write to highlight these problems and encourage
the Legislature to address them in order to clarify the
statute’s meaning.
The problems with the MFCA result, in large part,
from how the statutory language developed over time.
When the MFCA was enacted in 1977 PA 72, the

2
MCL 400.602(f).
264 505 MICH 239 [May
CONCURRING OPINION BY VIVIANO, J.

substantive criminal offense in MCL 400.607(1) was

nearly identical to the current version. It required the
defendant to have submitted a claim “knowing” it to be
false.3 “Knowing” and “knowingly,” in turn, were de-
fined to mean “that a person is aware of the nature of
his conduct and that his conduct is substantially cer-
tain to cause the intended result.”4 The Legislature
made minor changes to MCL 400.607 in 1984 PA 333,
but that act significantly amended the definition of
“knowing” and “knowingly” in MCL 400.602. After the
1984 amendment, the full definition read:
“Knowing” and “knowingly” means that a person is in
possession of facts under which he or she is aware or
should be aware of the nature of his or her conduct and
that his or her conduct is substantially certain to cause
the payment of a medicaid benefit. Knowing or knowingly
does not include conduct which is an error or mistake
unless the person’s course of conduct indicates a system-
atic or persistent tendency to cause inaccuracies to be
present.[5]

Under the first sentence of this section, which re-

mains in the current version, courts have held that
either actual knowledge (“is aware”) or constructive
knowledge (“should be aware”) suffices.6 Courts have

3
It stated:
A person shall not make or present or cause to be made or
presented to an employee or officer of the state a claim under Act
No. 280 of the Public Acts of 1939, as amended, upon or against
the state, knowing the claim to be false, fictitious, or fraudulent.
[MCL 400.607(1), as enacted by 1977 PA 72.]
4
MCL 400.602(c), as enacted by 1977 PA 72.
5
MCL 400.602(f), as amended by 1984 PA 333.
6
People v Perez-DeLeon, 224 Mich App 43, 48-49; 568 NW2d 324
(1997), citing People v American Med Ctrs of Mich, Ltd, 118 Mich App
135, 154; 324 NW2d 782 (1982); see also People v Kanaan, 278 Mich App
594, 603; 751 NW2d 57 (2008) (“[A]ctual knowledge that a Medicaid
2020] PEOPLE V WANG 265
CONCURRING OPINION BY VIVIANO, J.

also interpreted the section as requiring knowledge

that the claim would cause payment of benefits.7 When
read in conjunction with MCL 400.607(1), “the actual
or constructive knowledge element . . . requires knowl-
edge of both the falseness of a claim and that the claim
is substantially certain to cause payment of a benefit.”8
Understanding the next round of amendments to
the MFCA requires some background about the Fed-
eral Act and how it compares to the MFCA. Under the
Federal Act, private parties can bring qui tam actions
on behalf of the government for civil penalties and
damages, which the party and the government split.9
claim is false is not required to support a conviction. Rather, a conviction
can be sustained on the basis of evidence showing that a defendant
should have been aware that the nature of his or her conduct constituted
a false claim for Medicaid benefits, akin to constructive knowledge.”).
7
Perez-DeLeon, 224 Mich App at 49.
8
Id.
9
31 USC 3730. A qui tam action is one “brought under a statute that
allows a private person to sue for a penalty, part of which the govern-
ment or some specified public institution will receive.” Black’s Law
Dictionary (10th ed).
The Federal Act had a criminal penalty, codified in 18 USC 287, that
was derived from the original Federal Act passed in 1863. See United
States v Bornstein, 423 US 303, 305 n 1; 96 S Ct 523; 46 L Ed 2d 514
(1976) (describing the history of 18 USC 287). Section 287 criminalizes
making or presenting a claim knowing the claim to be false, fictitious, or
fraudulent. In 1986, when Congress amended the Federal Act to define
“knowing,” it also amended 18 USC 287 to provide criminal penalties for
making the same false claims as described in 31 USC 3729. PL 99-562,
§ 7; 100 Stat 3153, amending 18 USC 287. Federal courts now generally
refer to 18 USC 287 as the “criminal provisions” of the Federal Act. See,
e.g., United States v Glaub, 910 F3d 1334, 1336 (CA 10, 2018). In
addition to 18 USC 287, a number of other federal statutes provide
criminal penalties for healthcare fraud or related offenses. See, e.g.,
18 USC 1035 (prohibiting knowingly falsifying a material fact or making
a materially false statement in connection with the delivery of or payment
for healthcare benefits); 18 USC 1347 (prohibiting knowingly executing or
attempting to execute a scheme to defraud a healthcare benefit program
or to obtain money or property owned by a healthcare benefit
266 505 MICH 239 [May
CONCURRING OPINION BY VIVIANO, J.

The MFCA, by contrast, originally relied on criminal

penalties and a civil penalty (plus damages) in actions
brought by the government.10 Not until 2005 did the
MFCA allow for qui tam actions akin to those in the
Federal Act.11
Another difference is that the Federal Act contains a
broader liability provision in 31 USC 3729(a)(1)(B),
which prohibits “knowingly mak[ing], us[ing], or caus-
[ing] to be made or used, a false record or statement
material to a false or fraudulent claim[.]” “Material” is
defined as “having a natural tendency to influence, or
be capable of influencing, the payment or receipt of
money or property.”12 As noted above, the MFCA does
not contain a similar provision.
Like MCL 400.607(1), many of the provisions in the
Federal Act contain a scienter requirement under
which the defendant must act “knowingly.”13 The Fed-
eral Act left this term undefined prior to 1986, leading
many courts to require specific intent to defraud the
government or actual knowledge of falsity, while others
held that the knowledge element was satisfied by
extreme carelessness.14 To bring some order to the
subject, Congress enacted a definition of “knowing”
and “knowingly,” which still stands today.15 Under this
new definition, no specific intent to defraud is required
program by means of false pretenses, in connection with the delivery of
or payment for healthcare benefits).
10
1977 PA 72.
11
2005 PA 337; see MCL 400.610a.
12
31 USC 3729(b)(4).
13
See, e.g., 31 USC 3729(a)(1)(A), (B), (F), and (G).
14
See Boese, Civil False Claims and Qui Tam Actions (4th ed, 2019
update), § 2.06 (explaining the history and caselaw).
15
PL 99-562, § 2, 100 Stat 3153, amending 31 USC 3729(b).
2020] PEOPLE V WANG 267
CONCURRING OPINION BY VIVIANO, J.

and knowledge can be proven in three different ways:

by showing that a person “has actual knowledge of the
information,” “acts in deliberate ignorance of the truth
or falsity of the information,” or “acts in reckless
disregard of the truth or falsity of the information[.]”16
Thus, compared to the more open-ended “constructive
knowledge” standard in MCL 400.602(f), the Federal
Act contains two specifically defined forms of construc-
tive or imputed knowledge. The MFCA’s constructive-
knowledge standard represents a potentially broader
concept, embracing “[k]nowledge that one using reason-
able care or diligence should have . . . .”17 By contrast,
“reckless disregard” as used in the Federal Act has
been described as a “constructive knowledge standard”
requiring “aggravated gross negligence, gross
negligence-plus, or conduct that runs an unjustifiable
risk of harm.”18 And “deliberate ignorance”—again in
the context of the Federal Act—has been thought to
suggest “willful blindness.”19
Our definition of “knowing” and “knowingly” became
much more opaque when the MFCA was amended in
an apparent effort to qualify for financial incentives
crafted by Congress in the Deficit Reduction Act of
2005.20 Under that act, if a state has a false-claims act

16
31 USC 3729(b)(1).
17
Black’s Law Dictionary (10th ed), p 1004; see also Echelon Homes,
LLC v Carter Lumber Co, 472 Mich 192, 197; 694 NW2d 544 (2005)
(defining constructive knowledge “as ‘[k]nowledge that one using rea-
sonable care or diligence should have”), quoting Black’s Law Dictionary
(8th ed) (alteration in original).
18
See Boese, § 2.06.
19
Id. (“[T]he [Federal Act]’s ‘deliberate ignorance’ standard of intent
and ‘willful blindness’ are virtually identical concepts.”).
20
See generally Office of Inspector General, Dep’t of Health & Human
Servs, Publication of OIG’s Guidelines for Evaluating State False
Claims Acts, 71 Fed Reg 48552 (August 21, 2006).
268 505 MICH 239 [May
CONCURRING OPINION BY VIVIANO, J.

that “establishes liability . . . for false or fraudulent

claims described in” the Federal Act, then the state can
keep 10% more of the recoveries under its own false-
claims act—the additional funds coming from the
share of the recovery to which the federal government
would have been entitled.21 In other words, a state
could receive 10% more from shared false-claims judg-
ments if its false-claims act is as broad as the Federal
Act. The Deficit Reduction Act charged the Inspector
General of the Department of Health and Human
Services with determining whether the state statute
qualified.22 The Inspector General set out various stan-
dards it would use in this determination, including
whether the state law had provisions analogous both to
the federal definition of “knowing” and “knowingly”
and also to the provision creating liability for false
records set forth in 31 USC 3729(a)(1)(B).23
In 2008, in an apparent effort to satisfy the federal
civil-liability standard and thereby qualify for the
additional reimbursement share, our Legislature
amended the intent requirement in MCL 400.602(f).24
But instead of adopting the Federal Act’s coherent

21
42 USC 1396h.
22
42 USC 1396h(b).
23
OIG Guidelines, 71 Fed Reg at 48553.
24
2008 PA 421; House Legislative Analysis, SB 1622 (December 11,
2008), pp 1-2 (recommending that the House of Representatives revise
the definition of “knowing” and “knowingly” in MCL 400.602(f) to
include “deliberate ignorance” and “reckless disregard,” as defined in
the Federal Act, so that the state of Michigan would be eligible for
additional federal funding). According to the legislative analysis, Michi-
gan had already “missed out” on the extra funds because federal officials
had concluded that the MFCA failed to comply with the Federal Act. Id.
at 1. The bases for rejecting the MFCA were that it lacked a provision
creating liability for false records used to decrease or avoid paying
obligations to the government and that it did not allow civil penalties for
each false claim. OIG Evaluates 10 State False Claims Acts Under DRA;
2020] PEOPLE V WANG 269
CONCURRING OPINION BY VIVIANO, J.

tripartite structure—i.e., actual knowledge, deliberate

ignorance, and reckless disregard—the Legislature
simply patched the latter two forms of constructive
knowledge onto our existing statute (along with the
disclaimer that specific intent need not be shown) and
struck the language concerning errors.25 These
changes, however, failed to satisfy the Inspector Gen-
eral that the MFCA contained the same breadth of civil
liability as the Federal Act.26 While few details were
Three Statutes Meet Requirements for Incentive Allowing Increased
Share of Fraud Recoveries, 15 No. 12 FDA Enforcement Manual News-
letter 7 (2007).
Noting the legislative history here is not the same as using it to
interpret the statute. If anything, the legislative analysis shows the perils
of relying on these types of materials: it expressed a view of the
Legislature’s purpose that does not appear to be reflected in the statutory
text, at least according to the Inspector General. This disjunction between
the text and the legislative history is why we examine what the statute
says rather than what the legislators intended it to say as evidenced by
extrinsic documents. See Scalia & Garner, Reading Law: The Interpreta-
tion of Legal Texts (St. Paul: Thomson/West, 2012), p 375 (“[T]he use of
legislative history poses a major theoretical problem: It assumes that
what we are looking for is the intent of the legislature rather than the
meaning of the statutory text. That puts things backwards. To be ‘a
government of laws, not of men’ is to be governed by what the laws say,
and not by what the people who drafted the laws intended.”); Easter-
brook, The Role of Original Intent in Statutory Construction, 11 Harv J L
& Pub Pol’y 59, 61 (1988) (“Original meaning is derived from words and
structure . . . . What any member of Congress thought his words would do
is irrelevant. We do not care about his mental processes.”).
25
2008 PA 421.
26
Letter from Office of Inspector General to Attorney General Mike Cox
(March 21, 2011), available at <https://oig.hhs.gov/fraud/docs/false
claimsact/Michigan.pdf> [https://perma.cc/V56Y-BB57]. Michigan re-
ceived supplemental letters, one in 2011 and another in 2016, offering
additional reasons why the MFCA was not certified. See Letter from
Office of Inspector General to Attorney General Bill Schuette (Decem-
ber 28, 2016), available at <https://oig.hhs.gov/fraud/docs/false
claimsact/Michigan-supplement2.pdf> [https://perma.cc/RWL4-WXBM]
(explaining that the MFCA did not provide for the same increased civil
penalties as the Federal Act); Letter from Office of Inspector General to
270 505 MICH 239 [May
CONCURRING OPINION BY VIVIANO, J.

given in the Inspector General’s 2011 official letter

notifying the Michigan Attorney General that the state
was ineligible for the additional reimbursement share
under the Deficit Reduction Act, it did cite the Federal
Act’s broad definition of “material” as contrasting with
the MFCA.27
In sum, civil-liability concepts from the Federal Act
have been engrafted onto preexisting language in the
MFCA without, it seems, careful thought about how and
whether those concepts fit in the criminal-liability con-
text. To make matters worse, the MFCA’s old language
already created a number of interpretive puzzles. The
combined product is even more difficult to parse.
First, the initial sentence of MCL 400.602(f), defining
“knowing” and “knowingly,” is incomplete. It refers to
knowledge of the “nature of [an individual’s] conduct”
without clearly expressing what the “nature” of the
“conduct” relates to. Only by reading it together with
MCL 400.607(1)—when that offense is at issue—can the
terms in the first sentence be linked to the falsity of the
claim, i.e., knowledge that the claim is false.28 Certainly
it seems that the Legislature intended such a reading.
But incorporating the full definition of “knowing” into
MCL 400.607(1)—“knowing the claim to be false”—
makes the statute difficult to comprehend, to say the
least.29 As one example, the critical element here—
Attorney General Bill Schuette (August 31, 2011), available
at <https://oig.hhs.gov/fraud/docs/falseclaimsact/Michigan-supplement
.pdf> [https://perma.cc/H7EG-HMDL] (noting differences in the statutes
of limitations).
27
Letter from Office of Inspector General to Attorney General Mike
Cox (March 21, 2011).
28
See Perez-DeLeon, 224 Mich App at 49.
29
Consider substituting in just a portion of the term’s definition: “A
person shall not make or present or cause to be made or presented to an
2020] PEOPLE V WANG 271
CONCURRING OPINION BY VIVIANO, J.

certainty about the Medicaid payment—becomes an

element of the offense despite lacking any clear gram-
matical or logical connection to the phrasing of
MCL 400.607(1).
Second, a related question is whether the first sen-
tence of MCL 400.602(f) encompasses the full breadth
of the actual- and constructive-knowledge standards.
The phrasing—“is aware” or “should be aware”—
suggests that it does. But again, these phrases refer to
awareness regarding the “nature” of the individual’s
“conduct,” not specifically the falsity of the individual’s
Medicaid claim. In this respect, the Federal Act’s
clarity in establishing three ways to demonstrate
knowledge contrasts with the MFCA’s less direct lan-
guage. Moreover, if the first sentence covers construc-
tive knowledge—what the individual should have
known in the exercise of reasonable diligence—then it
is not apparent what meaning is added by the second
sentence introducing “reckless disregard” and “deliber-
ate ignorance.” Those two standards would already
seem to fall within the broader concept of constructive
knowledge in the first sentence.
Third, in defining “reckless disregard” and “deliber-
ate ignorance,” it is unclear what role is played by the
existence of both criminal and civil provisions in the
MFCA, as compared to the civil provisions in the
Federal Act. If “reckless disregard” bears a meaning
similar to that in the Federal Act, and thus focuses on
disregard of a substantial or unjustified risk, how does
employee or officer of this state a claim under the social welfare
act . . . [a person is in possession of facts under which he or she is aware
or should be aware of the nature of his or her conduct and that his or her
conduct is substantially certain to cause the payment of a medicaid
benefit] the claim to be false.” MCL 400.602(f); MCL 400.607(1). That
the definition was not written to fit the syntax of the sentence is one of
the more obvious problems with the definition.
272 505 MICH 239 [May
CONCURRING OPINION BY VIVIANO, J.

this meaning work with the phrase “substantial cer-

tainty”?30 Does “reckless disregard” mean reckless dis-
regard of a substantial and unjustified risk that a
defendant’s conduct will result in payment of a false
claim, or does it mean reckless disregard (i.e., disre-
gard of a substantial risk) of a substantial certainty
that the conduct will result in payment of a false
claim? If the latter, what sort of probabilistic assess-
ment would be required, diluted by two layers of
“substantial” risks or certainties? For that matter,
what degree of certainty is signified by the phrase
“substantial certainty”?
Fourth, with regard to MCL 400.607(1), what does
it mean to “cause” a false claim to be made or pre-
sented? Does this term incorporate a common-law
definition of causation?31 And if “cause” is modified by
“knowing,” how does the definition of “knowing”
in MCL 400.602(f), which already contains its own
causal requirement linked to actual payment, fit into
MCL 400.607(1)? Compounding this issue is the defi-
nition of “deceptive,” which also contains language
concerning causation. That term comes into play
through the definition of “false,” which “means wholly
or partially untrue or deceptive.”32 “Deceptive,” in turn,
“means making a claim or causing a claim to be made
under the social welfare act” containing statements
or omissions that mislead the government into think-
ing “the represented or suggested state of affair[s] to be
other than it actually is.”33 Thus, in the context of

30
See Boese, § 2.06.
31
Cf. Ray v Swager, 501 Mich 52, 63-69; 903 NW2d 366 (2017)
(holding that the Legislature used “proximate cause” as a legal term of
art, borrowing its lengthy background in the caselaw).
32
MCL 400.602(d).
33
MCL 400.602(c).
2020] PEOPLE V WANG 273
OPINION BY MARKMAN, J.

MCL 400.607(1), three potentially different causal re-

quirements might apply at the same time. In this
respect, a comparison to 31 USC 3729(a)(1)(B) demon-
strates the issues with our statute. That provision of
the Federal Act includes nearly identical phrasing—
“causes to be made or used”—but does not again refer
to causation in the definitions of other pertinent terms.
Instead, 31 USC 3729(a)(1)(B) employs the term “ma-
terial,” which, as noted before, “means having a natu-
ral tendency to influence, or be capable of influencing,
the payment or receipt of money or property.”34
These are hard interpretive questions that could
arise in future MFCA cases and may lead to a vague-
ness challenge or rule-of-lenity argument. I offer no
view on them here, except to say that they are best
resolved by the Legislature. For these reasons, I concur
in the judgment and encourage the lawmaking branch
to consider amending the statute to clarify its mean-
ing.

MARKMAN, J. (concurring in part and dissenting in

part). I concur with the majority to affirm defendant’s
conviction of the unlawful practice of medicine. I fur-
ther concur with its conclusion that defendant here did
not possess actual knowledge that Special Agents
Macon and Bates were purporting to be Medicaid pa-
tients. Where I respectfully depart from my colleagues
concerns whether there was sufficient evidence to allow
a reasonable trier of fact to conclude that defendant
here acted in “deliberate ignorance” of the special
agents’ putative Medicaid status in providing unli-
censed services for which no bill could lawfully be
generated. In view of the distinctive definition of “know-
ing” set forth in MCL 400.602(f) and the appellate

34
31 USC 3729(b)(4).
274 505 MICH 239 [May
OPINION BY MARKMAN, J.

standard of review governing defendant’s sufficiency-

of-the-evidence challenge, I would affirm defendant’s
convictions under the Medicaid False Claim Act
(MFCA), MCL 400.601 et seq.

I. BACKGROUND

I adopt the majority’s recitation of the factual and

procedural history of this case. As defendant’s experi-
ence within the healthcare field is relevant to the
knowledge element of her convictions under the
MFCA, I briefly summarize that experience.
Before moving to the United States in 2001, defen-
dant completed a five-year medical-school program in
China as well as two of three years of a residency
program in internal medicine. Defendant then entered
the United States to pursue studies at Purdue Univer-
sity, earning a Ph.D. in Basic Medical Science. Upon
completing her studies, defendant worked as a medical
researcher at the University of Michigan Medical
School and then at William Beaumont Hospital.
In 2013, through the AmeriClerkships program, defen-
dant rotated through four primary-care clinics. There-
after, AmeriClerkships placed defendant at the
Livernois Family Medical Clinic (LFMC), run by
Dr. Murtaza Hussain. Defendant then rotated through
all five clinics as an unpaid volunteer, doing so to gain
experience and additional personal references in sup-
port of her applications to United States medical-
residency programs. During her two-month rotation at
LFMC, defendant performed the functions of a medical
student on an outpatient rotation, including taking
patient histories and performing initial physical ex-
aminations. Defendant performed these basic tasks
while Dr. Hussain was present in the clinic.
2020] PEOPLE V WANG 275
OPINION BY MARKMAN, J.

In early 2014, defendant failed to obtain a United

States residency placement. She did, however, con-
tinue to work at LFMC, first as a volunteer and then as
a part-time and paid employee. When Special Agent
Macon purported to be an LFMC patient, defendant
had spent a total of nine months at the clinic, was
working there 10 to 15 hours a week, and was earning
between $20 and $30 an hour. Defendant saw 10 to 15
patients a day when Dr. Hussain was absent from the
clinic. Finally, defendant saw patients even while
Dr. Hussain was vacationing abroad.

II. STANDARD OF REVIEW

The standard of review for evaluating sufficiency-of-

the-evidence challenges following jury trials and bench
trials are one and the same. People v Petrella, 424 Mich
221, 268-269; 380 NW2d 11 (1985). Thus, the fact that
defendant’s convictions arise from a bench trial does
not alter the basic legal framework governing our
review of her sufficiency-of-the-evidence challenge. Id.
When considering a sufficiency-of-the-evidence chal-
lenge, “this Court reviews the evidence in a light most
favorable to the prosecutor to determine whether any
trier of fact could find the essential elements of the
crime were proven beyond a reasonable doubt.” People
v Robinson, 475 Mich 1, 5; 715 NW2d 44 (2006).
“[I]mportantly, the standard of review is deferential: a
reviewing court is required to draw all reasonable
inferences and make credibility choices in support of
the . . . verdict.” People v Oros, 502 Mich 229, 239; 917
NW2d 559 (2018) (brackets, quotation marks,
and citation omitted). “It is for the trier of fact, not
the appellate court, to determine what inferences
may be fairly drawn from the evidence and to deter-
mine the weight to be accorded those inferences.”
276 505 MICH 239 [May
OPINION BY MARKMAN, J.

People v Hardiman, 466 Mich 417, 428; 646 NW2d 158

(2002). “The scope of review is the same whether the
evidence is direct or circumstantial. Circumstantial
evidence and reasonable inferences arising from that
evidence can constitute satisfactory proof of the ele-
ments of a crime.” Oros, 502 Mich at 239 (quotation
marks and citation omitted). “[B]ecause it can be
difficult to prove a defendant’s state of mind on issues
such as knowledge and intent, minimal circumstantial
evidence will suffice to establish the defendant’s state
of mind, which can be inferred from all the evidence
presented.” People v Kanaan, 278 Mich App 594, 622;
751 NW2d 57 (2008) (emphasis added).

III. DISCUSSION

Under the MFCA, “[a] person shall not make or

present or cause to be made or presented to an em-
ployee or officer of this state a claim under the social
welfare act . . . upon or against the state, knowing the
claim to be false.” MCL 400.607(1). In order to sustain
a conviction under MCL 400.607(1), the prosecutor
must prove five elements:
“(1) the existence of a claim, (2) that the accused makes,
presents, or causes to be made or presented to the state or
its agent, (3) the claim is made under the Social Welfare
Act . . . , (4) the claim is false . . . , and (5) the accused
knows the claim is false . . . .” [Kanaan, 278 Mich App at
619, quoting People v Orzame, 224 Mich App 551, 558; 570
NW2d 118 (1997).]

Defendant’s sufficiency-of-the-evidence challenge cen-

ters on whether the prosecutor established the fifth
element—knowledge that the claim is “false.” This
element pertains to “both the nature of [defendant’s]
conduct and that [defendant’s] conduct is substantially
certain to cause the payment of a [false Medicaid or]
2020] PEOPLE V WANG 277
OPINION BY MARKMAN, J.

health care benefit.” People v Perez-DeLeon, 224 Mich

App 43, 49; 568 NW2d 324 (1997) (emphasis and
quotation marks omitted). The MFCA provides the
following specific definition for “knowing” and “know-
ingly”:
[A] person is in possession of facts under which he or she is
aware or should be aware of the nature of his or her conduct
and that his or her conduct is substantially certain to cause
the payment of a medicaid benefit. Knowing or knowingly
includes acting in deliberate ignorance of the truth or falsity
of facts or acting in reckless disregard of the truth or falsity
of facts. Proof of specific intent to defraud is not required.
[MCL 400.602(f) (emphasis added).]

In my judgment, the highlighted aspects of this

definition emphasize that an individual may not disre-
gard readily ascertainable facts that would otherwise
cause that individual, in light of other facts of which he
or she is aware, or should be aware, to recognize that a
claim made upon the government under the Social
Welfare Act is false.1 To be sure, the MFCA does not
define “deliberate ignorance.” See MCL 400.602. How-
ever, the definitions of “knowing” and “knowingly” are
modeled after and mirror the federal definitions of
those terms within the context of false claims against
the government. Compare, e.g., MCL 400.602(f) with
31 USC 3729(b)(1).2 And, under federal law, a finding of
“deliberate ignorance” is appropriate when (1) the

1
I emphasize “government” because the victims of defendant’s actions
were not only the patients at LFMC who had every reason to believe
they were receiving care from a licensed medical professional, see note
5 infra, but also the taxpayers of this state.
2
The federal statute, 31 USC 3729(b)(1), states:
(1) the terms “knowing” and knowingly”—
(A) mean that a person, with respect to information—
(i) has actual knowledge of the information;
278 505 MICH 239 [May
OPINION BY MARKMAN, J.

defendant claims a lack of guilty knowledge; (2) “the

defendant was subjectively aware of a high probabil-
ity of the existence of the illegal conduct”; and (3) “the
defendant purposely contrived to avoid learning of the
illegal conduct.” United States v Delgado, 668 F3d
219, 227-228 (CA 5, 2012) (quotation marks and
citation omitted); see also United States v Walter-Eze,
869 F3d 891, 910 (CA 9, 2017) (describing “deliberate
ignorance” as existing “where the defendant re-
mained willfully ignorant of the nature of his activity
after the circumstances would ‘have put any reason-
able person on notice that there was a “high probabil-
ity” that the conduct was illegal’ ”), quoting United
States v Nicholson, 677 F2d 706, 710 (CA 9, 1982)
(brackets omitted). A defendant acts with “deliberate
ignorance” when the defendant has a reasonable basis
to suspect that her actions run afoul of the law but
does not know the precise nature of the criminal
conduct. United States v Lara-Velasquez, 919 F2d 946,
952-953 (CA 5, 1990) (finding sufficient evidence to
establish that the defendant acted with deliberate
ignorance when he had reason to suspect he was
transporting illicit cargo but avoided inspecting the
vehicle he drove). Equating “deliberate ignorance” to
“conscious avoidance” has also gained widespread
approval in the federal circuit courts. United States v
Nazon, 940 F2d 255, 259 (CA 7, 1991). A defendant
acts with “deliberate ignorance” when she intention-
ally takes “actions to avoid confirming suspicions of
criminality.” United States v Heredia, 483 F3d 913,

(ii) acts in deliberate ignorance of the truth or falsity of the

information; or
(iii) acts in reckless disregard of the truth or falsity of the
information; and
(B) require no proof of specific intent to defraud[.]
2020] PEOPLE V WANG 279
OPINION BY MARKMAN, J.

917 (CA 9, 2007). The Seventh Circuit has arguably

summed up “deliberate ignorance” in a manner most
relevant to this case, stating that “[d]eliberate igno-
rance exists when the evidence indicates that the
defendant, knowing or suspecting that he is involved
in shady dealings, takes steps to make sure that he
does not acquire full or exact knowledge of the nature
and extent of those dealings.” United States v Lenn-
artz, 948 F2d 363, 369 (CA 7, 1991) (quotation marks
and citation omitted).
Given that defendant was, or should have been,
aware of the following four facts, a reasonable trier of
fact could conclude that defendant acted with “delib-
erate ignorance” of the ultimate fact that a false claim
would be submitted to Medicaid as a result of her
services. First, based on defendant’s experience in the
healthcare field and her efforts to obtain a residency
placement and an accompanying medical license, de-
fendant was aware, or should have been aware, that it
was unlawful for her to practice medicine. This is
particularly true given that defendant provided medi-
cal services even while Dr. Hussain was more than
5000 miles away in Greece.3 Second, as acknowledged
by the majority, Darius Baty, an employee in LFMC’s
billing department, testified that everyone at LFMC
“knew that a bill was going to be generated [for each

3
The majority asserts that I have not identified any “evidence in
support of the notion that defendant knew, at any point, that the
services she provided were not lawful . . . .” But as the above discussion
reflects, her experience in the medical field in combination with her
unsuccessful efforts to obtain a medical license provided a trier of fact
with a reasonable basis to conclude that she was cognizant that she
could not practice medicine and write prescriptions while Dr. Hussain
was not at LFMC. This is particularly true given that this Court must
view the evidence in the light most favorable to the prosecutor and given
that defendant’s criminal state of mind is subject to the specific
standards of MCL 400.602(f).
280 505 MICH 239 [May
OPINION BY MARKMAN, J.

patient visit] and sent to somebody so that the clinic

could be paid for that patient visit . . . .” And defen-
dant’s knowledge of this specific point is lent further
support by the fact that she was receiving compensa-
tion for her work at LFMC. For when defendant was
the sole person seeing a patient—as was the case, for
example, with Special Agent Bates—and LFMC was
paying her, it follows that defendant knew that LFMC
would prepare and submit a bill for the visit. Third,
based on her considerable history in the healthcare
field, defendant was aware, or should have been
aware, that a bill could not be sent to Medicaid or any
insurance company for services rendered by an indi-
vidual who lacked any type of professional medical
license and thus could not lawfully practice in the
field.4 Fourth, defendant was aware, or should have
been aware, that a high percentage of the patients
specifically seeking treatment at LFMC were Medicaid

4
The majority states that “[b]ecause the evidence did not establish
that defendant was required to participate in the billing process,
trained in billing procedures, or lawfully required to make herself
aware of individual patients’ insurance information, there is no
indication that defendant actively sought to remain ignorant of infor-
mation she knew to be likely to reveal illegal conduct.” One need not,
however, partake in the billing process or be trained in billing
procedures to know that it is fraudulent to bill for services that the
majority, in upholding defendant’s unlawful-practice-of-medicine con-
viction, correctly concludes defendant could not legally perform. When
defendant performed her services, the only fact unknown to defendant
was whether a private insurance company or the state of Michigan
would be the victim of a false claim for her unlicensed services. Thus,
by knowing that she could not practice medicine and that a bill would
be generated for her services, defendant knew or should have known
that she was engaged in “shady dealings” that were certain to result in
the generation of false bills. This is perhaps made most apparent by
her decision to treat patients even while Dr. Hussain was vacationing
in Greece. And as discussed in point four infra, defendant knew or
should have known that there was a high probability that the state of
Michigan specifically would be the victim.
2020] PEOPLE V WANG 281
OPINION BY MARKMAN, J.

beneficiaries. From her nine months of experience at

LFMC, she possessed at least a basic understanding of
the clinic’s patient population. Indeed, defendant ac-
knowledged during cross-examination that she was
cognizant that at least some of the patients at LFMC
were Medicaid patients. Furthermore, Baty quantified
the percentage of patient visits resulting in bills to
Medicaid, estimating that “a good 50 percent” of
LFMC’s patients were Medicaid recipients.
To summarize, a reasonable trier of fact could have
concluded that defendant was aware, or should have
been aware: (1) that it was unlawful for her to practice
medicine; (2) that a bill would be generated for her
services, even when Dr. Hussain was not present; (3)
that it was unlawful and fraudulent to bill Medicaid for
her services; and (4) that a significant percentage of
LFMC patients were Medicaid recipients, such that
LFMC would bill the government for her services.
From these facts, a reasonable trier of fact could
conclude that defendant knew that her employment at
LFMC was an integral part of an illicit scheme. Fur-
ther, such a reasonable trier of fact could also conclude
that defendant knew that on the occasions on which
Special Agents Macon and Bates visited, there was
approximately—arguably at least—a one-in-two
chance that her “treatment” of any given patient would
cause LFMC to submit a false claim to Medicaid. Put
another way, because defendant testified that she saw
10 to 15 patients on days when Dr. Hussain was not
present at LFMC, her services on those days caused, on
average, the submission of five to eight false bills to
Medicaid.5

5
Quantified differently, if 50% of LFMC patients were Medicaid
recipients and Wang saw 10 patients on a day when Dr. Hussain was not
at LFMC, there was a greater than 99.9% chance that her work at
LFMC on that day would have resulted in the clinic sending a false
Medicaid bill to the government.
282 505 MICH 239 [May
OPINION BY MARKMAN, J.

Despite this high probability and volume of false

bills to Medicaid resulting from defendant’s “treat-
ment” of patients, defendant avoided three readily avail-
able means of determining whether a given patient,
such as Special Agents Macon or Bates, was a Medicaid
patient. First, she could have asked the clinic reception-
ist, who was cognizant of a given patient’s insurance
information, whether a patient was a Medicaid recipi-
ent. Second, she could have reviewed their paper charts,
which contained insurance information, including a
photocopy of their Medicaid cards. Third, she could have
expressly inquired whether they were Medicaid recipi-
ents. Rather than determining whether a patient was or
was not a Medicaid recipient, defendant simply closed
her eyes to this information, all the while knowing that
bills would be generated and submitted to the govern-
ment for the unlawful services that she had provided.6
In my judgment, the four facts of which defendant was
aware, or should have been aware, combined with her
avoidance of readily ascertainable information regard-
ing a patient’s Medicaid status, amount to “deliberate

6
Apart from the requirement placed upon defendant by the MFCA,
knowing a patient’s insurance status, particularly when treating a
patient of limited financial means who is on Medicaid, is relevant to
devising a treatment plan and selecting a prescription-medication
regimen. See Schneider & Hall, The Patient Life: Can Consumers
Direct Health Care?, 35 Am J L & Med 7, 33-34 & nn 130, 132 (2009)
(discussing studies showing that doctors “routinely consider [an]
insured patient’s out-of-pocket costs in some clinical situations, espe-
cially when prescribing drugs” and observing that knowing a patient’s
insurance status and financial limitations influenced treatment plans
and what specific medications doctors prescribed). Thus, defendant’s
decision to avoid learning of a patient’s Medicaid status not only
caused a false claim to be submitted to Medicaid but also arguably
impacted the specific care received by patients at LFMC. For this
latter reason, I respectfully disagree with the majority that because
defendant was not herself involved in billing procedures, she had no
particular need or reason to learn of a patient’s insurance status.
2020] PEOPLE V WANG 283
OPINION BY MARKMAN, J.

ignorance” of the ultimate fact that her “treatment” of

the special agents would cause the submission of false
claims to Medicaid.7

IV. CONCLUSION

Defendant was aware that a large percentage of

patients at LFMC were Medicaid patients such that
her actions would cause the submission of false bills to
Medicaid but acted with “deliberate ignorance” of the
readily ascertainable fact that Special Agents Macon
and Bates were Medicaid patients and thus that false
governmental claims were being generated under the
Social Welfare Act. Therefore, I respectfully dissent
from the portion of the majority’s opinion vacating
defendant’s convictions under the MFCA.

7
The majority contends that while defendant could have asked about
a patient’s insurance status, nothing shows that defendant either
possessed a patient’s paper chart or would have looked through the
paper chart to determine a patient’s insurance status had she possessed
one. But it is not a question of what defendant did or would have done.
Rather it is a question of what the law required of her in light of the facts
that she knew or should have known. Because defendant knowingly
involved herself in “shady dealings” that were certain to result in some
type of false billing, a trier of fact could rely on the “deliberate
ignorance” standard for establishing knowledge and return a guilty
verdict by reasonably inferring that defendant intentionally avoided
learning a given patient’s insurance status and, in turn, that her
treatment of that patient would result in Medicaid fraud. Certainly, as
evidenced from the three ways by which defendant could have learned a
patient’s Medicaid status, the information was readily accessible. But,
of course, had defendant taken the few moments necessary to learn a
patient’s Medicaid status and then declined to provide services to the
patient, there is a reasonable question whether she would have been
able to maintain her employment at LFMC, and it is not inappropriate
that this also be considered by the trier of fact.
284 505 MICH 284 [May

HONIGMAN MILLER SCHWARTZ AND COHN LLP v

CITY OF DETROIT

Docket No. 157522. Argued October 2, 2019 (Calendar No. 2). Decided
May 18, 2020.
Honigman Miller Schwartz and Cohn LLP filed a petition in the
Tax Tribunal, challenging the income tax assessments issued by
the city of Detroit for the tax years 2010 through 2014. Petitioner
argued that under MCL 141.623 of the Uniform City Income
Tax Ordinance (UCITO), MCL 141.601 et seq., payment for services
performed by attorneys working in the city on behalf of clients
located outside the city constituted out-of-city revenue for
the purpose of calculating income taxes, not in-city revenue as
asserted by respondent. In other words, petitioner argued that
MCL 141.623 encompassed only revenue derived from services
delivered to clients located within the city, and respondent argued
that the figure calculated under MCL 141.623 should have in-
cluded revenue for all services performed within the city without
regard to either the client’s location or the place of delivery. The
tribunal granted partial summary disposition in favor of respon-
dent, reasoning that the relevant consideration for calculating
gross revenue under MCL 141.623 was where the work was
performed, not where the client received the services. The Court of
Appeals, MURPHY, P.J., and SAWYER and BECKERING, JJ., reversed the
tribunal, concluding that under MCL 141.623, the relevant consid-
eration for determining the percentage of gross revenue from
services rendered in the city was where the service itself was
delivered to the client, not where the attorney performed the
service; in reaching that result, the Court attributed different
meanings to the term “rendered” in MCL 141.623 and the term
“performed” in MCL 141.622, reasoning that because the Legisla-
ture used different words within the same act, it intended the
terms to have distinct meanings. 322 Mich App 667 (2018). The
Supreme Court granted respondent’s application for leave to
appeal. 503 Mich 909 (2018).
In an opinion by Justice MARKMAN, joined by Justices ZAHRA,
BERNSTEIN, and CAVANAGH, the Supreme Court held:
2020] HONIGMAN V DETROIT 285

The term “rendered” in MCL 141.623 means to do a service for

another. In employing that term, the Legislature adopted an
origin test, rather than a market-based approach for calculating
revenue from services under MCL 141.623. When determining
the percentage of gross revenue from services rendered in the city
under MCL 141.623, that figure encompasses all legal services
performed within the city regardless of where those services are
delivered. Thus, when calculating the percentage of gross rev-
enue from services rendered in the city, the focus is on where the
service was performed, not on where it was delivered.
1. For purposes of interpreting the UCITO, it is useful to
consider the analogous context of the sale of services in
multistate-business taxation. Historically, business taxation laws
in Michigan implemented an origin test by assigning services to
the state in which they were performed. Because of the growth of
the economy’s service sector, this treatment has evolved in
Michigan toward market-based sourcing rules for services and
other intangibles; in that regard, the Michigan Business Tax Act,
2007 PA 36, and the corporate income tax act, 2011 PA 38,
required that the sale of services and other intangibles be
calculated on the basis of where the recipient received the benefit,
either in state or out of state.
2. MCL 141.618 of the UCITO requires a business to deter-
mine the percentage of its net profit that is derived from business
activities within the city. To arrive at that number, MCL 141.624
requires a business to calculate taxable net profit from business
activity within a city—the business allocation percentage—by
calculating the property factor under MCL 141.621, the payroll
factor under MCL 141.622, and the revenue factor under
MCL 141.623, after which the figures are added together and
divided by three. In calculating the payroll factor, MCL 141.622
requires that the taxpayer ascertain the percentage which the
total compensation paid to employees for work done or for services
performed within the city is of the total compensation paid to all
the taxpayer’s employees within and without the city during the
period covered by the return. In calculating the revenue factor,
MCL 141.623 requires the taxpayer to ascertain the percentage
which the gross revenue of the taxpayer derived from sales made
and services rendered in the city is of the total gross revenue
from sales and services wherever made or rendered during the
period covered by the return. With regard to MCL 141.623(1),
the phrase “sales made in the city” means all sales where the
goods, merchandise, or property is received in the city by the
purchaser, or a person or firm designated by the purchaser. Thus,
286 505 MICH 284 [May

with respect to the delivery of goods in the city, the place at which
the delivery has been completed is considered as the place at which
the goods are received by the purchaser, and the Legislature
provides examples illustrating when revenue from the delivery of
goods is considered in-city or out-of-city; the provision is therefore
a market-based sourcing rule that focuses on where the goods were
delivered. In contrast, the Legislature adopted an origin test for
“services rendered” under the revenue factor. Given the dictionary
definition of the term “render”—that is, to do a service for another
—the revenue factor focuses on where the services are done or
carried out, not on where the services are delivered. Had the
Legislature intended to treat services similarly to the sale of goods,
it would have plainly expressed that intention and could have seen
fit to also provide guidance illustrating how services are “deliv-
ered” and when the delivery of services should be considered in-city
or out-of-city. Moreover, because the phrase “services rendered in
the city” and slight variations of that phrase appear in many
provisions of the UCITO, it is clear when apportioning a business’s
net profits that the focus is on where the profit-earning activity
takes place. Reading the revenue factor in context alongside the
payroll and property factors, as well as with the UCITO’s broader
provisions that employ the phrase “services rendered,” the appor-
tionment of gross revenue under the revenue factor must be
determined on the basis of the location at which the business
activity, including legal services, takes place. Thus, “services ren-
dered” under the revenue factor encompasses revenue for all
services done or carried out within the city, even when those
services are performed for out-of-city clients.
3. When the Legislature uses different words, it generally
intends those words to have different meanings. This maxim of
jurisprudence is a general rule and may not apply in every
situation, particularly when its use would not give meaning to the
entire statutory scheme or the overall context of provisions within
the statutory scheme; therefore, competing rules of interpretation
must be balanced and harmonized to fully discern what the
Legislature intended. With regard to the UCITO, although the
Legislature used the term “performed” in MCL 141.622 and the
term “rendered” in MCL 141.623, the terms have similar mean-
ings within those provisions. In that regard, “performed” in
MCL 141.622 means “to carry out,” which connotes a similar
meaning to “rendered” in MCL 141.623, meaning, in context, “to
do a service for another.” As a result, the Legislature intended
both revenue for “services rendered in the city” and compensation
for “services performed within the city” to be calculated similarly
2020] HONIGMAN V DETROIT 287

—specifically on the basis of where the service has been done or

carried out. However, the terms do not have identical meanings;
they are similarly defined, but each has a distinctive connotation
given its distinctive context and placement within the act. Specifi-
cally, within the UCITO, the term “performed” relates to an
employee’s compensation for services carried out for an employer,
while the term “rendered” relates to earnings, such as net profits,
derived from services done on behalf of clients. Thus, MCL 141.622
connects the employee’s performance of services to his or her
compensation from the employer, while MCL 141.623 connects the
taxpayer’s revenue to the process by which the business or firm
provides services for others, in particular, to its clients. Although
the terms are distinct, the Legislature intended them to have an
essentially common meaning and to focus the UCITO’s analysis on
where a service has been done or carried out and not on where it
was finally delivered. The contextual distinction explains why the
Legislature employed different terms to describe how to calculate
which services are taxable, as well as why the terms are not
interchangeable throughout the act.
4. Accordingly, although the terms “rendered” and “per-
formed” generally have similar meanings and are effectively
equivalent in their relative purposes within the act, the
consistent-usage canon did not apply in this case because the
distinctive contexts in which the terms appear account for the
Legislature’s use of different words despite their similar mean-
ings. The Court of Appeals erred by determining that under
MCL 141.623, revenue for services rendered in the city is calcu-
lated on the basis of where the services were delivered instead of
where the services were performed; instead, the tribunal cor-
rectly concluded that petitioner must calculate gross revenue
under MCL 141.623 on the basis of where the services are
performed, not on where the client that received those services
was located.
Court of Appeals judgment reversed and the case remanded to
the tribunal for further proceedings.
Justice VIVIANO, joined by Chief Justice MCCORMACK and Jus-
tice CLEMENT, concurring, agreed with the result reached by the
majority but wrote separately to express his disagreement with
the majority’s analysis in Part III(D) of the opinion in which it
sought to differentiate between the term “render” in MCL 141.623
and the term “perform” in MCL 141.622. The issue in this case
was whether the phrase “services rendered” in MCL 141.623
includes work “performed” in the city of Detroit for clients outside
the city even though MCL 141.622 contains the phrase “services
performed.” Before the majority’s discussion in Part III(D) of the
288 505 MICH 284 [May

terms’ supposed distinctive connotations, the majority’s textual,

contextual, and historical bases for its interpretations plainly
indicate that “services rendered” means “services performed.”
This portion of the opinion was sufficient to determine that
“rendered” refers to the place the service was performed, not
where it was delivered, and the majority should not have at-
tempted to distinguish between those two terms in Part III(D)
just to avoid the presumption of consistent usage. The majority’s
analysis, which created a new exception to the consistent-usage
presumption, was unpersuasive. Provisions of the UCITO contra-
dict the majority’s contention that “performed” is consistently
used—in contradistinction to “rendered”—in referring to compen-
sation for services performed by an employee. In addition, the
majority failed to explain how its distinction illuminated the
semantic content of the terms; because the majority did not
mention the connotations it discussed in Part III(D) of the opinion
in the critical parts of the opinion defining the terms, the
contextual analysis is not part of those meanings when consider-
ing the presumption of consistent usage and deciding whether the
definitions are the same for purposes of that canon. Moreover, the
majority’s contextual analysis in that part of the opinion left the
terms semantically unchanged; thus, it failed to demonstrate that
the different terms have different meanings, making the canon
inapplicable. The majority’s analysis assumed that if different
terms occur in different contexts, albeit in close proximity in the
same act, there is no general presumption against giving them
the same meaning. That is not how the canon works. Instead, the
canon itself provided the answer in this case because it is simply
a presumption that has long been recognized as an imperfect tool
for determining textual meaning. Drafters often use different
words to denote the same concept. The presumption thus readily
yields when a fair reading of the text requires. The majority’s
analysis in Part III(D) did not demonstrate that the terms are
semantically distinct; rather, that portion of the opinion simply
demonstrated, if anything, that the Legislature may have em-
ployed the different terms for stylistic variety. Justice VIVIANO
would have concluded that the meaning of the term “rendered” in
MCL 141.623 clearly meant “performed” and that the common-
usage canon gave way to textual and contextual evidence.

TAXATION — UNIFORM CITY INCOME TAX ORDINANCE — REVENUE FACTOR —

CALCULATION OF REVENUE FACTOR — SERVICES RENDERED TO CLIENTS
LOCATED OUTSIDE THE CITY — WORDS AND PHRASES — “RENDERED.”
Under MCL 141.624 of the Uniform City Income Tax Ordinance,
MCL 141.601 et seq., a business must calculate the net profit that
2020] HONIGMAN V DETROIT 289
OPINION OF THE COURT
is derived from business activity within a city—the business
allocation percentage—by calculating the property factor under
MCL 141.621, the payroll factor under MCL 141.622, and the
revenue factor under MCL 141.623, after which the figures must
be added together and divided by three; under MCL 141.623, a
taxpayer must ascertain the percentage which the gross revenue
of the taxpayer derived from sales made and services rendered in
the city is of the total gross revenue from sales and services
wherever made or rendered during the period covered by the
return; the term “rendered” means to do a service for another, and
it encompasses all legal services performed within the city
regardless of where those services are delivered; when calculating
the percentage of gross revenue from services rendered in the city,
the focus is on where the services were performed, not on where
the service was delivered to a client.

Honigman LLP (by Leonard M. Niehoff, Lynn A.

Gandhi, and Robert M. Riley) for Honigman Miller
Schwartz & Cohn LLP.

Lawrence T. Garcia and Charles N. Raimi for the

city of Detroit.

Amici Curiae:

Elliot J. Gruszka, Assistant City Attorney, and

Foster Swift Collins & Smith PC (by Michael D.
Homier), for the city of Grand Rapids.

MARKMAN, J. The issue here is whether the phrase

“services rendered in the city” in MCL 141.623 of
the Uniform City Income Tax Ordinance (UCITO),
MCL 141.601 et seq., encompasses legal services per-
formed within the city—in this case, the city of Detroit
—but delivered to clients situated outside the city.1 The
Michigan Tax Tribunal (the Tribunal) concluded that
under § 23 of the UCITO, MCL 141.623, “services

1
The UCITO is contained within Chapter 2 of the City Income Tax
Act, MCL 141.501 et seq. 1964 PA 284.
290 505 MICH 284 [May
OPINION OF THE COURT

rendered in the city” encompasses all legal services

performed within the city regardless of where those
services are delivered. However, the Court of Appeals
reversed the Tribunal and concluded that the pertinent
consideration under § 23 is where the services are
delivered to the client. On application, this Court now
resolves this disagreement by identifying what we
view as the proper understanding of § 23. Needless to
say, nothing herein should be understood as communi-
cating our perspectives concerning the wisdom, the
merits, or the prudence of this provision. Because we
conclude that § 23 encompasses all legal services per-
formed, i.e., done or carried out within the city without
regard to where those services are delivered, we re-
verse the judgment of the Court of Appeals and remand
to the Tribunal for entry of an order granting partial
summary disposition in favor of respondent, the city of
Detroit.

I. FACTS & HISTORY

Petitioner, Honigman Miller Schwartz and Cohn

LLP (Honigman), is a law firm that operates offices
within and outside Detroit.2 Each year, Honigman, as
an unincorporated business whose “entire net
profit . . . is not derived from business activities exclu-
sively within the city,” MCL 141.618, apportions its net
profit using a three-factor formula known as the “busi-
ness allocation percentage method,” MCL 141.620.
This formula incorporates a “property factor,” the nu-
merator of which includes the value of tangible per-
sonal and real property “situated within the city,”
MCL 141.621; a “payroll factor,” the numerator of which
includes total compensation paid to employees for

2
Honigman changed its name, effective January 1, 2019, to Honigman
LLP.
2020] HONIGMAN V DETROIT 291
OPINION OF THE COURT

“services performed within the city,” MCL 141.622; and

a “revenue factor,” the numerator of which includes
revenue derived from “services rendered in the city,”
MCL 141.623. From 2010 through 2014, Honigman
calculated its revenue factor for services rendered in
the city as approximately 11% of its gross revenue,
excluding from this calculation revenues that resulted
from services—e.g., legal research, document creation
and preparation, and the arguing of motions—
performed within the city but “delivered” to clients
outside the city. However, the city determined that the
proper amount under the revenue factor should have
been calculated at approximately 50% of Honigman’s
gross revenues, taking more fully into account revenue
for services performed within Detroit on behalf of
out-of-city clients. The city thus imposed an additional
tax assessment of approximately $1.1 million dollars,
which became final in 2016.
Honigman subsequently filed a petition in the Tri-
bunal, and both parties sought partial summary dis-
position under MCR 2.116(C)(10). The Tribunal
granted the city’s motion and denied Honigman’s mo-
tion, concluding that § 23 is “ambiguous” and that the
better interpretation of “services rendered in the city”
requires that the revenue factor be determined using
revenues generated where the services are performed
and not where they are delivered.3 The Tribunal dis-
cussed why the statute would employ the term “per-

3
We note the confusing nature of this aspect of the Tribunal’s ruling.
It is well settled that “ambiguities in the language of a tax statute are
to be resolved in favor of the taxpayer.” Mich Bell Tel Co v Dep’t of
Treasury, 445 Mich 470, 477; 518 NW2d 808 (1994); cf. Denton v Dep’t of
Treasury, 317 Mich App 303, 310; 894 NW2d 694 (2016) (stating,
however, that tax exemptions are to be “strictly construed” against the
taxpayer). The Tribunal here concluded that the statute was “ambigu-
ous” but nonetheless resolved this dispute in favor of the city. We believe
292 505 MICH 284 [May
OPINION OF THE COURT

formed” under one provision of the UCITO and “ren-

dered” under another, stating:
Reading [the UCITO] in context, the Tribunal finds
that the difference reflects nothing more than the syntax
of the English language. The term “performed” is used in
MCL 141.622 because that section pertains to compensa-
tion paid to employees, and services are typically “per-
formed” for an employer, while in terms of generating
revenue, they are “rendered” to a client. Further, the
definitions and comparisons offered by [Honigman] are
not on point. [Honigman] cites definitions provided by
Black’s Law Dictionary and Merriam-Webster Online Dic-
tionary that imply an act of delivery, e.g., “to transmit or
deliver” and “to give.” [Honigman] notes that these defi-
nitions align with the concept of “goods received,” which
focuses on where goods are destined. As noted by [the city],
however, [Honigman’s] legal professionals sell their
services—they do not generate “gross revenue” from
“sales.” And unlike goods, merchandise, and property,
services are intangible, and they cannot be “delivered” in
the same manner as tangible items. [The city] aptly notes
that “A lawyer’s time and advice is his stock in trade.” It
does not logically follow, therefore, that the determination
of where services are rendered must also be based on
where the recipient of the services is located. In addition
to the definition provided by [Honigman], the Merriam-
Webster Online Dictionary also defines the term “render”
as “to do (a service) for another.” In turn, the term “do” is
defined as “perform, execute.” As such, the Tribunal finds
that the term is synonymous with perform.

The parties reached agreement regarding the remain-

ing issues, and a final appealable order was entered.
Honigman subsequently argued in the Court of
Appeals that the two terms bear distinctive meanings
—that § 23 is not “ambiguous” because it focuses on
the Tribunal erred by characterizing § 23 as “ambiguous,” but that it did
not err in its understanding of § 23.
2020] HONIGMAN V DETROIT 293
OPINION OF THE COURT

the delivery of services and that, even if it was ambigu-

ous, it should be construed in Honigman’s favor as the
taxpayer. The Court began its analysis by addressing
the statute’s use of the terms “performed” and “ren-
dered”:
We begin by observing that the Legislature used two
different terms in drafting the payroll factor under § 22
and the sales factor under § 23. The payroll factor refers to
“services performed,” and § 23 refers to “services ren-
dered.” We agree with [Honigman] that these phrases
must be given two different meanings because when
the Legislature uses different words, the words are
generally intended to connote different meanings.
Simply put, “the use of different terms within simi-
lar statutes generally implies that different mean-
ings were intended.” If the Legislature had intended
the same meaning in both statutory provisions, it
would have used the same word.
Therefore, because § 22 refers to where the work is done or
performed, the Legislature likely intended that the § 23
phrase “services rendered” have a different meaning.
[Honigman Miller Schwartz and Cohn LLP v Detroit, 322
Mich App 667, 671-672; 915 NW2d 383 (2018) (citations
omitted).]

The Court also adopted Honigman’s proposed defini-

tion of “render”:
[T]he relevant definition of “render” is “to transmit to
another: DELIVER.” This is in contrast to the Tribunal’s
opinion, which looked to an online definition of “render”:
“ ‘to do (a service) for another.’ ”[4] The [Tribunal’s] opinion

4
The Tribunal’s definition of “render” is found in Merriam-Webster’s
Collegiate Dictionary (11th ed), and it is therefore not just an “online
definition.” Rather, the definitions of “render” relied on by both the
Tribunal and Court of Appeals can be found in this dictionary, and these
definitions have not changed since the statute’s enactment in 1964. See
Webster’s Seventh New Collegiate Dictionary (7th ed).
294 505 MICH 284 [May
OPINION OF THE COURT

then equated “do” with “perform” to reach the conclusion

that “render” is “synonymous with perform.” We find this
conclusion to be dubious and unnecessarily convoluted.
Why would the Legislature use the word “render” to mean
“perform” by way of the verb “to do,” when it would have
been much simpler and clearer to simply reuse the § 22
word “perform”? This neatly illustrates the principle that
the Legislature employs different words when it intends
different meanings. [Id. at 674.]

Concluding that “the relevant consideration in § 23 is

where the service is delivered to the client, not where
the attorney performs the service,” the Court of Ap-
peals reversed the Tribunal and remanded for further
proceedings. Id. This Court then ordered and heard
oral argument concerning whether the Court of Ap-
peals erred in its interpretation of the phrase “services
rendered in the city.” Honigman Miller Schwartz and
Cohn LLP v Detroit, 503 Mich 909 (2018).

II. STANDARD OF REVIEW

“If the facts are not disputed and fraud is not

alleged, our review is limited to whether the Tax
Tribunal made an error of law or adopted a wrong
principle.” Mich Props, LLC v Meridian Twp, 491 Mich
518, 527-528; 817 NW2d 548 (2012). We review de novo
a decision on a motion for summary disposition under
MCR 2.116(C)(10). El-Khalil v Oakwood Healthcare,
Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). More-
over, this case presents a significant question of statu-
tory interpretation, which is also reviewed de novo.
Mich Props, LLC, 491 Mich at 528. Accordingly, we are
required to examine the provisions of the UCITO. See
Danse Corp v Madison Hts, 466 Mich 175, 181-182; 644
NW2d 721 (2002). “Where the statutory language is
unambiguous, the plain meaning reflects the Legisla-
ture’s intent and the statute must be applied as writ-
2020] HONIGMAN V DETROIT 295
OPINION OF THE COURT

ten.” Id. at 182, citing Tryc v Mich Veterans’ Facility,

451 Mich 129, 135; 545 NW2d 642 (1996). Each word
and phrase in a statute “must be assigned such mean-
ings as are in harmony with the whole of the statute,
construed in light of history and common sense.”
Sweatt v Dep’t of Corrections, 468 Mich 172, 179; 661
NW2d 201 (2003) (opinion by MARKMAN, J.) (quotation
marks and citation omitted). “An administrative agen-
cy’s interpretation of a statute that it is obligated to
execute is entitled to ‘respectful consideration,’ but it
cannot ‘conflict with the plain meaning of the statute.’ ”
Hegadorn v Dep’t of Human Servs Dir, 503 Mich 231,
244; 931 NW2d 571 (2019), quoting In re Rovas Com-
plaint Against SBC Mich, 482 Mich 90, 108; 754 NW2d
259 (2008).

III. ANALYSIS

A. UNIFORM CITY INCOME TAX ORDINANCE

This dispute involves the proper interpretation of

the UCITO, which has been adopted by Detroit under
Detroit Ordinances, § 18-10-1 et seq.5 The provisions of
the UCITO, including MCL 141.618, establish the
framework within which Honigman must apportion its
net profit.
Section 18 addresses the taxation of a business’s
“net profit” for business activities that are not “exclu-
sively” conducted within the city:
When the entire net profit of a business subject to the
tax is not derived from business activities exclusively

5
Detroit adopted the UCITO by way of its authority as a home-rule
city. See Detroit Charter, art 1, § 1-101. We recognize that Detroit
has incorporated these tax provisions into its code of ordinances, but
for ease of reference, we refer only to the identical provisions under
MCL 141.601 et seq.
296 505 MICH 284 [May
OPINION OF THE COURT

within the city, the portion of the entire net profit, earned
as a result of work done, services rendered or other
business activity conducted in the city, shall be deter-
mined under either [MCL 141.619], [MCL 141.620 to
MCL 141.624], or [MCL 141.625]. [MCL 141.618.]

There is no dispute that Honigman’s city taxes are

determined under MCL 141.620 to MCL 141.624.
Those provisions set forth the three-factor formula,
known as the “business allocation percentage method,”
for calculating the taxable “net profit of a business.”
Section 20 introduces the three-factor formula as
follows:
The business allocation percentage method shall be
used if such taxpayer is not granted approval to use the
separate accounting method of allocation. The entire net
profits of such taxpayer earned as a result of work done,
services rendered or other business activity conducted in
the city shall be ascertained by determining the total
“in-city” percentages of property, payroll and sales. “In-
city” percentages of property, payrolls and sales, sepa-
rately computed, shall be determined in accordance with
[MCL 141.621 to MCL 141.624]. [MCL 141.620.]

This formula thus identifies three discrete factors—the

property factor, the payroll factor, and the revenue
factor—that must each be ascertained and then aver-
aged to arrive at the “business allocation percentage.”
MCL 141.621 to MCL 141.624.
The first of these, the property factor, states, in
relevant part:
First, the taxpayer shall ascertain the percentage
which the average net book value, of the tangible personal
property owned and the real property, including leasehold
improvements, owned or used by it in the business and
situated within the city during the taxable period, is of the
average net book value of all of such property, including
2020] HONIGMAN V DETROIT 297
OPINION OF THE COURT

leasehold improvements, owned or used by the taxpayer in

the business during the same period wherever situated.
[MCL 141.621.]

The payroll factor next states:

Second, the taxpayer shall ascertain the percentage
which the total compensation paid to employees for work
done or for services performed within the city is of the total
compensation paid to all the taxpayer’s employees within
and without the city during the period covered by the
return. For allocation purposes, compensation shall be
computed on the cash or accrual basis in accordance with
the method used in computing the entire net income of the
taxpayer.[6]
If an employee performs services within and without
the city, the following examples are not all inclusive but
may serve as a guide for determining the amount to be
treated as compensation for services performed within the
city:
(a) In the case of an employee compensated on a time
basis, the proportion of the total amount received by him
which his working time within the city is of his total
working time.
(b) In the case of an employee compensated directly on
the volume of business secured by him, such as a salesman
on a commission basis, the amount received by him for
business attributable to his efforts in the city.
(c) In the case of an employee compensated on other
results achieved, the proportion of the total compensation
received which the value of his services within the city
bears to the value of all his services. [MCL 141.622
(emphasis added).]

6
“Compensation” is defined as “salary, pay or emolument given as
compensation or wages for work done or services rendered, in cash or in
kind, and includes but is not limited to the following: salaries, wages,
bonuses, commissions, fees, tips, incentive payments, severance pay,
vacation pay and sick pay.” MCL 141.604(2).
298 505 MICH 284 [May
OPINION OF THE COURT

Finally, the revenue factor states, in relevant part:

Third, the taxpayer shall ascertain the percentage
which the gross revenue of the taxpayer derived from
sales made and services rendered in the city is of the total
gross revenue from sales and services wherever made or
rendered during the period covered by the return. [MCL
141.623 (emphasis added).]

Concerning “sales made in the city,” the revenue factor

affords further guidance for calculating revenues in-
volving the delivery of goods:
(1) For the purposes of this section, “sales made in the
city” means all sales where the goods, merchandise or
property is received in the city by the purchaser, or a
person or firm designated by him. In the case of delivery of
goods in the city to a common or private carrier or by other
means of transportation, the place at which the delivery
has been completed is considered as the place at which the
goods are received by the purchaser.
The following examples are not all inclusive but may
serve as a guide for determining sales made in the city:
(a) Sales to a customer in the city with shipments to a
destination within the city from a location in the city or an
out-of-city location are considered sales made in the city.
(b) Sales to a customer in the city with shipments to a
destination within the city directly from the taxpayer’s
in-city supplier or out-of-city supplier are considered sales
made in the city.
(c) Sales to a customer in the city with shipments
directly to the customer at his regularly maintained and
established out-of-city location are considered out-of-city
sales.
(d) Sales to an out-of-city customer with shipments or
deliveries to the customer’s location within the city are
considered sales made in the city.
(e) Sales to an out-of-city customer with shipments to
an out-of-city destination are considered out-of-city sales.
[MCL 141.623(1).]
2020] HONIGMAN V DETROIT 299
OPINION OF THE COURT

The parties agree on the method of calculation for

the property and payroll factors, but they dispute how
to calculate the percentage of revenue from “services
rendered in the city” under the revenue factor.7 From
2010 to 2014, Honigman calculated the numerator
of the revenue factor under § 23 as encompassing
only revenue derived from services delivered to
clients located within Detroit, but the city asserts that
Honigman should have included within this numerator
revenue for all services performed within Detroit with-
out regard to either the client’s location or the place of
delivery. Before we interpret the pertinent statute to
ascertain how Honigman must calculate revenue from
“services rendered” under the revenue factor, there is
value in briefly reviewing the history of our state’s tax
treatment of revenue from the sale of services.

B. SALE OF SERVICES

In an analogous context of our state’s business

taxation laws, “the Legislature has always required a
multistate taxpayer with business income or activity
both within and without the state to apportion its tax
base.” Int’l Business Machines Corp v Dep’t of Treasury,
496 Mich 642, 650; 852 NW2d 865 (2014) (IBM Corp)
(opinion by VIVIANO, J.).8 As with the UCITO, which
was adopted in 1964, our early business-income tax

7
For purposes of the UCITO, we conclude that “performed” under the
payroll factor means “to carry out an action . . . ,” Merriam-Webster’s
Collegiate Dictionary (11th ed), and accordingly, as the parties do not
dispute, that compensation for “services performed within the city” is
calculated on the basis of the location at which the employee has carried
out the service for compensation.
8
Although our business taxation laws concern the apportionment of
income between Michigan and other states, reviewing their apportion-
ment provisions is useful because these show the historical development
of formula-based apportionment rules for receipts from services in
300 505 MICH 284 [May
OPINION OF THE COURT

laws did not provide a detailed explanation of how

receipts from the sale of services should be apportioned.9
At least by 1955, however, when the Legislature first
adopted a multifactor apportionment formula, it was
clear that our state followed “the traditional rule of
assigning services to the state in which they are
performed.”10 See MCL 205.553(b)(1)(C)(2) and (3), as
amended by 1955 PA 282 (apportioning receipts from
services by dividing the taxpayer’s gross receipts from
“[s]ervices performed within this state” by the total
amount of the taxpayer’s gross receipts from “services
performed . . . both within and without the state”).11
However, that changed in 1965 when the Legisla-
ture incorporated language from the Uniform Division
of Income for Tax Purposes Act (UDITPA) into our
income tax statute. MCL 205.553(c)(3)(b), as amended
Michigan and offer insight as to the apportionment of in-city and
out-of-city income under the UCITO.
9
See MCL 205.553(2), as adopted in 1953 PA 150; MCL 205.553(b)(1),
as amended by 1954 PA 17; and MCL 205.553(b)(1)(C), as amended by
1955 PA 282. The last of these acts is noteworthy because it appears to
be the first time the Legislature adopted a multifactor formula to
determine the adjusted receipts of a taxpayer to be deemed attributable
to Michigan. See MCL 205.553(b), as amended by 1955 PA 282.
10
See 1 Hellerstein, Hellerstein & Swain, State Taxation (3d ed),
¶ 9.18[3][a], p 9-372. See also 1964 HR Rep No 1480, p 188 (“Among those
States which provide specific rules for the assignment of particular types
of receipts, other than those from the sale of tangible personalty, there is
considerable uniformity in their attribution provisions. Receipts from
services are assigned to the State where the service is performed.”).
11
Because these were enacted in an era when significantly fewer
services were remotely consumed (see infra note 16 and accompanying
text), the prior versions of the statute likely would have been viewed the
same way even though these employed the phrase at issue here, “services
rendered.” See MCL 205.553(2), as adopted in 1953 PA 150 (apportioning
receipts from “the rendition of services” by multiplying the total adjusted
gross receipts “by a fraction the numerator of which is gross receipts from
services rendered in Michigan and the denominator gross receipts from
services rendered everywhere”); MCL 205.553(b)(1), as amended by 1954
PA 17 (same).
2020] HONIGMAN V DETROIT 301
OPINION OF THE COURT

by 1965 PA 186, specified that revenue from the sale of

services should be included in the sales factor if:
(i) The income-producing activity is performed in this
state; or
(ii) The income-producing activity is performed both in
and outside this state and a greater proportion of the
income-producing activity is performed in this state than
in any other state, based on costs of performance.[12]

The Legislature maintained this language when it

repealed our initial income tax statute and replaced it
with the Income Tax Act of 1967. See MCL 206.123, as
adopted in 1967 PA 281.13 And it employed similar

12
This provision is almost identical to art IV, § 17 of the UDITPA. In the
same public act, our Legislature adopted a destination test for the sale of
tangible personal property by incorporating language from art IV, § 16 of
the UDITPA into our income tax statute. See MCL 205.553(c)(3)(a), as
amended by 1965 PA 186. Notably, during the debate over whether to
adopt a destination or an origin test as the fundamental rule of attribu-
tion for sales of tangible personal property in the UDITPA,
[w]hile acknowledging that an origin test would have been the
preferred choice of the manufacturing states, the National Con-
ference of Commissioners on Uniform State Laws “was of the
opinion that [a sales factor with an origin test] would merely
duplicate the property and payroll factors which emphasize the
activity of the manufacturing state.” [Hellerstein, Construing the
Uniform Division of Income for Tax Purposes Act: Reflections on
the Illinois Supreme Court’s Reading of the “Throwback” Rule, 45
U Chi L Rev 768, 773-774 (1978) (second alteration in original).]
Furthermore, as Professor Hellerstein noted, “the adoption of the desti-
nation test [was] so widespread as to render academic any question of its
acceptability.” Id. at 774. But despite that criticism, the Uniform Law
Commissioners adopted an origin test for the sale of services. See id. at
772 (noting that with respect to the sale of services, “UDITPA attributes
receipts to the state in which ‘the income-producing activity is performed’
or, if it is performed in more than one state, to the state in which a ‘greater
proportion of the income-producing activity is performed . . . based on
costs of performance’ ”). And our Legislature followed suit, incorporating
this language into our income tax statute in 1965.
13
Michigan formally adopted the UDITPA and joined the Multistate
Tax Compact in 1969. See 1969 PA 343. The Legislature later reversed
302 505 MICH 284 [May
OPINION OF THE COURT

language several years later in 1975 in adopting the

Single Business Tax Act (SBTA).14
In recent years, a different trend—toward “market-
based sourcing” rules—has emerged.15 This trend has
been fueled by the growth of the service sector of the
economy and the development of new technologies that
allow for more services to be provided remotely.16
course after this Court’s decision in IBM Corp, 496 Mich 642. See 2014
PA 282.
14
See MCL 208.53, as adopted by 1975 PA 228:
Sales, other than sales of tangible personal property, are in
this state if:
(a) The business activity is performed in this state.
(b) The business activity is performed both in and outside this
state and, based on costs of performance, a greater proportion of
the business activity is performed in this state than is performed
outside this state.
(c) Receipts derived from services performed for planning,
design, or construction activities within this state shall be
deemed Michigan receipts.
15
See Schadewald, Apportioning Income from Sales of Services: The
Rules Have Changed, The CPA J (Oct 2016), available at
<https://www.cpajournal.com/2016/10/01/apportioning-income-from-sales-of-
services/> (accessed March 18, 2020) (“In 2000, only a handful of
states . . . used market-based sourcing rules for sales of services,” but “[i]n
recent years, many states have replaced the cost of performance rule with
market-based sourcing rules for sales of services.”). See also Hellerstein,
Hellerstein & Swain, ¶ 9.18[3], at 9-368 (“Before the widespread adoption of
UDITPA and similar statutes that attributed sales of services based on a
catch-all ‘income-producing activity’/ ‘cost of performance’ test for attributing
receipts from all sales other than sales of tangible personal property, and the
more recent and equally widespread replacement of the UDITPA approach
with a ‘market-state’ approach to attribution of receipts from the sale of
services, states typically included receipts from services in the numerator of
the receipts factor to the extent that the services were performed in the
state.”) (citations omitted).
16
In an influential article pointing out the weaknesses in UDITPA’s
treatment of services, Professor Swain explained that “when UDITPA
was first promulgated in 1957, it was much more reasonable to assume
that customer location would correlate with the place of the perfor-
2020] HONIGMAN V DETROIT 303
OPINION OF THE COURT

Michigan followed the trend toward market-based

sourcing in 2007 when our Legislature adopted the
Michigan Business Tax Act (MBTA), 2007 PA 36,
shortly after repealing the SBTA. See 2006 PA 325.
Under the MBTA’s approach, revenue from the sale of
services is attributed to the specific market in which
the benefit of the services is received.17 And the Legis-
lature preserved this language in adopting a new
corporate income tax in 2011. See MCL 206.665(2)(a),
as adopted in 2011 PA 38.18 Although the UDITPA has
not been amended, in 2015, the Multistate Tax Com-
mance. Thus, place of performance may have been an acceptable proxy
for the market state.” Swain, Reforming the State Corporate Income Tax:
A Market State Approach to the Sourcing of Service Receipts, 83 Tul L
Rev 285, 300 (2008). However, in light of the growth of remotely
consumed services, this was no longer the case:
A product of its day, UDITPA was written against the backdrop of
an economy dominated by mercantile and manufacturing enter-
prises . . . . The U.S. economy, however, has changed dramatically
since that time. Production has shifted steadily from goods to
services and intangibles, and the forces of globalization, spurred
by the revolution in communications technology, now allow many
more goods and services to be supplied remotely. This puts
tremendous pressure on division of income rules that were
developed in another era. [Id. at 287.]
17
Under MCL 208.1305(2):
Sales from the performance of services are in this state and
attributable to this state as follows:
(a) Except as otherwise provided in this section, all receipts
from the performance of services are included in the numerator of
the apportionment factor if the recipient of the services receives
all of the benefit of the services in this state. If the recipient of the
services receives some of the benefit of the services in this state,
the receipts are included in the numerator of the apportionment
factor in proportion to the extent that the recipient receives
benefit of the services in this state.
18
Under MCL 206.665(2):
Sales from the performance of services are in this state and
attributable to this state as follows:
304 505 MICH 284 [May
OPINION OF THE COURT

mission revised Article IV of the Multistate Tax Com-

pact to encompass market-based sourcing for the sale
of services and other intangibles.19 In other words, the

(a) Except as otherwise provided in this section, all receipts

from the performance of services are included in the numerator
of the apportionment factor if the recipient of the services
receives all of the benefit of the services in this state. If the
recipient of the services receives some of the benefit of the
services in this state, the receipts are included in the numerator
of the apportionment factor in proportion to the extent that the
recipient receives benefit of the services in this state.
19
See Model Multistate Tax Compact (as revised by the Multistate
Tax Commission, July 29, 2015), art 4, § 17 (“Receipts, other than
receipts described in Section 16, are in this State if the taxpayer’s
market for the sales is in this state. The taxpayer’s market for sales is
in this state: . . . (3) in the case of sale of a service, if and to the extent
the service is delivered to a location in this state[.]”) (paragraph
structure omitted). Changing to market-based sourcing for the sale of
services and other intangibles was intended to mirror the destination
principle used for assigning the receipts of tangible personal property.
See Pomp, Report of the Hearing Officer: Multistate Tax Compact
Article IV [UDITPA] Proposed Amendments (October 25, 2013),
p 57, available at <http://www.mtc.gov/uploadedFiles/Multistate_Tax_
Commission/Pomp%20final%20final3.pdf> (accessed March 19, 2020). In
his report, Professor Richard Pomp noted that “[t]he destination prin-
ciple . . . is hard to mimic in the case of services,” and that “[s]ervices (and
intangible property) present different—and more difficult considerations.”
Id. at 62. He outlined a number of problems that could arise depending on
how the concept of “delivery” is defined:
[S]uppose an architectural firm performs its design services
in State A, for a corporate client based in State B, involving a
project in State C. The firm sends drawings to the corporate
contact as an e-mail attachment. Where does delivery take place
if the client downloads the attachment while on a plane, at
home, or at a hotel? What if the architectural firm makes the
drawings available at its web site, located on a server in State D,
which is accessed by the client while in State E? In which state
did delivery take place and how would the firm know?
What if the drawings are delivered in hard copy to the client’s
office in State B, or handed to the client when she visits the firm
in State A? Does it matter that the project is in State C? For a rule
on delivery to be workable it cannot require information unknown
to the provider. A sound rule must also not be easily manipulated.
2020] HONIGMAN V DETROIT 305
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language of each of these provisions requires that the

sale of services and other intangibles be calculated on
the basis of where the recipient receives the benefit,
either in state or out of state. And this approach
reflects an evolution of tax policy from an origin-based
approach to a market-based sourcing approach. In
light of this brief historical context underlying the sale
of services in the realm of multistate-business taxa-
tion, we turn again to the UCITO, in particular its
calculation of the revenue factor.

C. “RENDERED” IN CONTEXT

To resolve this dispute, we must consider the defini-

tions of relevant statutory terms and central to this is
the definition of “rendered.” In particular, the revenue
factor requires the calculation of “gross revenue of the
taxpayer derived from sales made and services ren-
dered in the city[.]” MCL 141.623 (emphasis added).
The statute does not define “rendered,” but this Court
generally gives undefined terms their plain and ordi-

A sound definition of “delivery” should not allow the firm’s

receipts (its fees) to be assigned to a state under tenuous,
fortuitous, or serendipitous circumstances, having little to do
with any reasonable policy considerations underlying how income
should be apportioned. Moreover, any rule for assigning sales
should not be easily susceptible to manipulation by the taxpayer.
If the scenarios above can result in assigning the service fee to
different states, the place of delivery could become elective.
Digital services could be delivered to low-tax jurisdictions and
retransmitted. To be sure, this same possibility exists under the
destination principle in Act Art. IV.16, (especially with boats and
planes) but in the case of services, there are fewer transaction
costs and constraints on the place of delivery, which facilitates tax
planning. It is tempting to use the customer’s billing address as
an acceptable proxy for “delivery,” at least in the case of individu-
als who have less opportunity to change it in cooperation with the
service provider and the regulations should address this possibil-
ity. [Id. at 63-64.]
306 505 MICH 284 [May
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nary meanings and may certainly, and properly,

consult dictionary definitions in giving such meaning.
Oakland Co Bd of Co Rd Comm’rs v Mich Prop &
Cas Guaranty Ass’n, 456 Mich 590, 604; 575 NW2d 751
(1998). The parties strongly disagree as to how we
should define “rendered.” Honigman argues that
this Court should affirm that “render” means “to trans-
mit to another: DELIVER.”20 Merriam-Webster’s Colle-
giate Dictionary (11th ed). Applying this definition,
Honigman asserts that “services rendered in the city”
under the revenue factor encompasses only services
that are actually delivered to a client located in Detroit.
In contrast, the city argues that “render” means “to do
(a service) for another,” id., encompassing all services
done within the city.21 And the difference between
these respective interpretations lies in their contrary
verbal understandings—“deliver” versus “to do”—
which, not surprisingly, lead to markedly disparate tax
consequences.22

20
It is not altogether clear which rule Honigman is urging us to adopt.
According to its brief, Honigman allocates its revenue based upon the
client’s billing address. (Presumably, although it is unclear from the
record, this would include all such receipts, regardless of whether the
work was performed by Honigman’s attorneys in Detroit or elsewhere.)
Moreover, Honigman’s Director of Financial Services has stated in a
sworn affidavit that to prepare its income tax return, “Honigman’s
accounting system compiled a summary of revenue by client. All revenue
from clients located within the city was treated as in-city revenue.” The
percentage of revenue from Detroit clients represented roughly 11% of the
total revenue for all clients. However, Honigman urges us to affirm the
Court of Appeals, which held that the relevant consideration is the
delivery location, i.e., “where the service is delivered to the client.”
Honigman, 322 Mich App at 675. But these understandings represent
distinctive approaches to market-based sourcing. See Schadewald, supra
note 15.
21
This approach effectively aligns with the origin test, i.e., where the
service was performed or completed.
22
The Tribunal concluded that because the revenue factor is capable
of being understood in distinctive ways and, as a result, its proper
2020] HONIGMAN V DETROIT 307
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Both parties’ arguments appear to articulate plau-

sible interpretations of the statute. However, in order
to determine the most reasonable meaning of statutory
language, such language cannot be read in isolation or
in a manner disregardful of context; this Court will not
extract words and phrases from within their context or
otherwise defeat their import as drawn from such
context. G C Timmis & Co v Guardian Alarm Co, 468
Mich 416, 421; 662 NW2d 710 (2003). A statute should
be interpreted in light of the overall statutory scheme,
and “[a]lthough a phrase or a statement may mean one
thing when read in isolation, it may mean something
substantially different when read in context.” Sweatt,
468 Mich at 179-180. And in this case, where “ren-
dered” is read in context, we believe that the city’s
definition constitutes the more appropriate under-
standing and that the Court of Appeals erred by
reversing the Tribunal. The term “render,” in our
judgment, most precisely means “to do (a service) for
another,” Merriam-Webster’s Collegiate Dictionary
(11th ed), and thus the revenue factor does not focus
upon where the services are delivered but where they
are done or carried out.23 To reach this conclusion, it is
understanding is not altogether certain, the statute is “ambiguous” and
“judicial construction” is necessary. Under this rationale, however, most
statutes, in particular those that culminate in litigation, could be
characterized as ambiguous. However, it is entirely commonplace that a
statutory term or provision is susceptible to multiple not-unreasonable
definitions. “[A]mbiguity is a finding of last resort” and it should “be
reached only after all other conventional means of interpretation have
been applied and found wanting.” Kendzierski v Macomb Co, 503 Mich
296, 311; 931 NW2d 604 (2019), quoting Mayor of the City of Lansing v
Pub Serv Comm, 470 Mich 154, 165 & n 6; 680 NW2d 840 (2004)
(quotation marks omitted). After assessing the disputed language in
context, we believe that MCL 141.623 is unambiguous.
23
We recognize the similarity between the definitions we give to
“rendered” and “performed”—“rendered” means “to do (a service) for
another” while “performed” means “to carry out an action . . . ,”
308 505 MICH 284 [May
OPINION OF THE COURT

necessary that we view “rendered” in context and

analyze, respectively: (1) the revenue factor to deter-
mine how it treats “services rendered” and (2) the
language within broader provisions of the relevant tax
framework to assess which definition of “render,”
among several that might be viewed in isolation as
“reasonable,” most closely harmonizes with the overall
statute.

1. REVENUE FACTOR

We look first to § 23, the revenue factor, because it

contains the pertinent language in dispute, encom-
passing revenue earned for both “sales made and
services rendered in the city . . . .”24 Specifically, § 23
provides that “the taxpayer shall ascertain the per-
centage which the gross revenue of the taxpayer de-
rived from sales made and services rendered in the city
is of the total gross revenue from sales and services
wherever made or rendered during the period covered
by the return.” MCL 141.623 (emphasis added). “When
interpreting a statute, we must ‘consider both the plain
meaning of the critical word or phrase as well as its
placement and purpose in the statutory scheme.’ ”
Sweatt, 468 Mich at 179 (some quotation marks and
citation omitted). And the entirety of the revenue
factor’s consideration of “services rendered” is con-
tained in this single sentence. In contrast, the Legis-
lature affords considerable additional guidance regard-
ing “sales made,” more clearly specifying what is
meant by “sales made in the city” as it pertains to the
Merriam-Webster’s Collegiate Dictionary (11th ed). We also recognize
that these terms commonly refer to the location at which the service is
done or carried out.
24
See Danse Corp, 466 Mich at 181-182 (“We are required to examine
the plain language of the involved statutes.”).
2020] HONIGMAN V DETROIT 309
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“delivery” of goods: “In the case of delivery of goods in

the city to a common or private carrier or by other
means of transportation, the place at which the deliv-
ery has been completed is considered as the place at
which the goods are received by the purchaser.”
MCL 141.623(1) (emphasis added). The Legislature
then sets forth five nonexhaustive examples to give
further illustration, e.g., “[s]ales to an out-of-city cus-
tomer with shipments or deliveries to the customer’s
location within the city are considered sales made in the
city,” MCL 141.623(1)(d), but “[s]ales to an out-of-city
customer with shipments to an out-of-city destination
are considered out-of-city sales,” MCL 141.623(1)(e).
The Court of Appeals concluded that because gross
revenue from the sale of goods is predicated on where
those goods are delivered, gross revenue from “services
rendered” should also be predicated on such delivery
on the basis that goods and services are both accounted
for under the revenue factor. Honigman, 322 Mich App
at 671-673. However, “words in a statute should not be
construed in [a] void, but should be read together to
harmonize [their] meaning, giving effect to the act as a
whole.” Gen Motors Corp v Erves (On Rehearing), 399
Mich 241, 255; 249 NW2d 41 (1976) (opinion by
COLEMAN, J.). And in the instant regard, the guidance
afforded by the Legislature was specifically for
the purpose of determining “sales made in the city,”
which pertains to the delivery of goods, not services.
MCL 141.623(1). Respectfully, we do not believe the
Court of Appeals was correct in relying upon the guid-
ance of the Legislature in connection with “sales made”
to conclude that “services rendered,” focused upon the
delivery of services, must be understood in the same
manner. Rather, we conclude that even though revenue
from “sales made in the city” is focused upon where the
310 505 MICH 284 [May
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goods are delivered, revenue from “services rendered in

the city” is instead focused upon where the services are
done or carried out.
Indeed, if the Legislature had intended to treat
services in a similar manner to the sale of goods, it
might well have seen fit to provide similar, if not
identical, guidance and similar, if not identical, ex-
amples by which to illustrate how such services are
delivered and when the delivery of services should be
considered in-city versus out-of-city, while clarifying
difficult or counterintuitive situations that might occur
in relation to where services are being “delivered” to
clients.25 Instead, the Legislature made clear that the
calculation of sales made in the city looks to the place
at which the delivery has been completed and § 23 then
provides illustrations that “may serve as a guide for
determining sales made in the city[.]” MCL 141.623(1).
Thus, for the sale of goods, this provision expressly
adopted a market-based sourcing rule that focuses
upon the delivery location of the shipment.26 But the

25
At oral argument, this Court presented the attorneys with a number
of factual scenarios involving the “delivery” of services in an effort to
better understand just how one “delivers” an intangible service to
another. For example, how does one “deliver” services that relate to no
tangible object at all, such as the repair of a dishwasher? Or what if the
service is being delivered to a client with principal locations both inside
and outside of the city? Or is the taxpayer allowed to select which among
a client’s locations a service is to be delivered? And what if the client is an
out-of-state insurance company and the law firm is charged with the
representation of the client’s insured who is located inside or outside of
the city, or in both? These questions are indicative that the delivery of
services is not in all instances an intuitive concept or one easily under-
stood absent statutory guidance. See Pomp at 63-64, supra note 19.
26
This has always been the dominant approach for sales of tangible
personal property, see Construing the Uniform Division of Income for
Tax Purposes Act, 45 U Chi L Rev at 774, n 38 (noting that by 1978,
“[t]he destination test of attribution of receipts from sales of tangible
personal property [was] used in whole or in part in 42 of the 45
2020] HONIGMAN V DETROIT 311
OPINION OF THE COURT

Legislature did not define “services rendered in the

city” in a similar fashion or otherwise provide a
market-based sourcing standard for the sales of ser-
vices as it did later when it adopted the MBTA in 2007
or restored the state corporate income tax in 2011.27
Had the Legislature intended to ground the calculation
of “services rendered in the city” upon where the
service was delivered, it could have expressed this
intention in plain terms, or even in similar terms to
those it used with regard to the sale of goods and then
provided similar examples that would “serve as a guide
for determining services rendered in the city,”
MCL 141.623(1). Yet the Legislature did none of this.
And contrary to Honigman’s premise, there is simply
no textual evidence or other reason to believe that the
Legislature intended “sales made in the city,” and the
additional guidance afforded to “sales made,” to be
understood indistinguishably with the sale of ser-
vices.28 “Services rendered in the city,” in our judgment,
most naturally communicates the venue at which ser-
vices have been done or carried out, not the venue at
jurisdictions (44 states and the District of Columbia) that employ a sales
or receipts factor in their apportionment formulas”).
27
See MCL 208.1305(2)(a); MCL 206.665(2)(a).
28
Indeed, the Legislature understood well how to afford guidance
concerning the calculation of the three factors under the business
allocation percentage method. Under the payroll factor, the Legislature
supplies “examples” that “serve as a guide for determining the amount
to be treated as compensation for services performed within the city[.]”
MCL 141.622. Specifically, these examples address how to calculate the
payroll factor based upon specific forms of compensation for the perfor-
mance of services, i.e., compensation for the amount of time worked, the
volume of business secured, or “other results achieved.” Thus, the
Legislature knew precisely how to supply guidance where necessary, as
it had done under the payroll factor. If the Legislature intended to
equate the sale of services with the delivery of that service, it could have
made this clear and afforded the guidance necessary to calculate
revenue based upon the delivery of services.
312 505 MICH 284 [May
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which services are delivered, and we are not per-

suaded, absent further guidance from the Legislature,
that the treatment of the delivery of goods under the
revenue factor communicates that “services rendered”
is the equivalent of “services delivered.” Where “ren-
dered” means simply “to do (a service) for another,”
Merriam-Webster’s Collegiate Dictionary (11th ed), the
calculation of revenue from services rendered in the
city is straightforward; the law inquires where those
services were done and not where they were deliv-
ered.29 Accordingly, we agree with the Tribunal that
under § 23, “rendered” means “to do (a service) for

29
Honigman never adequately explains, in our judgment, why, even if
this Court agreed that the Legislature adopted a market-based sourcing
rule for the sale of services, we should hold that it selected the billing
location of the customer, i.e., the option employed in practice by
Honigman, as opposed to the location at which the services are deliv-
ered, i.e., the rule adopted by the Court of Appeals, or the location at
which the benefit of the services is received, i.e., the rule adopted by the
Legislature in the MBTA and in our restored corporate income tax. As
Professor Pomp explained in his report to the Multistate Tax Commis-
sion, if a taxing jurisdiction adopts a delivery rule for the sale of
services, much still depends upon the precise definition of “delivery”
that is selected. See supra note 19. Therefore, even assuming that the
Legislature adopted a delivery rule, the statute contains no textual
clues that would assist us in determining which specific market-based
sourcing rule it selected. Furthermore, even assuming that the addi-
tional guidance supplied in the statute for the sale of tangible personal
property was intended also to serve as guidance, no textual clues in that
subsection have been identified that would lead to the conclusion that
the Legislature intended to adopt a market-based sourcing rule based
upon the customer’s billing address as opposed either to a rule based
upon the location at which the services are delivered or the location at
which the benefit of the services is received (options that appear more
reflective of the rule adopted by the Legislature for the sale of tangible
personal property). Finally, it is worth noting that the particular
market-based sourcing rule apparently advocated by Honigman—one in
which sales of services are sourced based upon the customer’s billing
address—has never, to the best of our knowledge, been expressly
adopted in any Michigan taxing statute.
2020] HONIGMAN V DETROIT 313
OPINION OF THE COURT

another,” id., and the calculation of the revenue factor

is based upon where the service has been performed,
i.e., done or carried out, not where the service was
ultimately delivered.

2. TAX FRAMEWORK

We next turn to a review of the UCITO’s overall

framework to determine which definition of “render”
best harmonizes with the statute as a whole. To be sure,
language in a statute “must be read in context with the
entire act, and the words and phrases used there must
be assigned such meanings as are in harmony with the
whole of the statute, construed in the light of history
and common sense.” Sweatt, 468 Mich at 179 (quotation
marks and citation omitted). In doing so, we also look
beyond the revenue factor to other provisions of the
statute that are relevant for the purpose of giving
meaning to the term “rendered.” In particular, the
phrase “services rendered in the city,” and slight varia-
tions of this phrase, appear numerously in provisions
that pertain to the apportionment of the net profits of a
business, and we believe the Legislature’s use of this
language is further indicative of an intention to calcu-
late revenue from “services rendered,” based upon
where the service is done or carried out.
This phrasing first appears in MCL 141.612(b),
which provides that for resident individuals the tax at
issue applies to “a distributive share of the net profits
of a resident owner of an unincorporated business,
profession, enterprise, undertaking or other activity, as
a result of work done, services rendered and other
business activities wherever conducted.”30 (Emphasis

30
A “resident” is defined as “an individual domiciled in the city.” MCL
141.609(1).
314 505 MICH 284 [May
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added.) In other words, for resident individuals, the

tax applies to pass-through income regardless of where
the revenue-producing business activity occurs. As
it applies, however, to nonresident individuals and
corporations, the UCITO is less agnostic about the
situs of the revenue-producing income activity. In that
regard, the act provides that the tax only applies to net
profits resulting from “work done, services rendered,
and other business activities conducted in the city.”
MCL 141.613(b) (emphasis added). And for “a corpora-
tion doing business in the city,” the tax similarly
applies only to “such part of the taxable net profits as
is earned by the corporation as a result of work done,
services rendered and other business activities con-
ducted in the city . . . .” MCL 141.614 (emphasis
added). In other words, for these categories of taxpay-
ers, the tax only applies where the profit-earning
business activity takes place in the city.
Similar phrasing appears in MCL 141.618, which
provides the road map for determining which portion of
the net profit of a business, such as that of Honigman,
is attributable to the city. It provides that “the portion
of the entire net profit, earned as a result of work done,
services rendered or other business activity conducted
in the city” (emphasis added), shall be determined
by the separate accounting method, MCL 141.619;
the business allocation percentage method, MCL
141.620 through MCL 141.624; or an alternative
method of accounting approved by the administrator,
MCL 141.625. And the phrase appears yet again in
MCL 141.620, the provision setting forth, inter alia, how
the business allocation percentage method is calculated:
“The entire net profits of such taxpayer earned as a
result of work done, services rendered or other business
activity conducted in the city shall be ascertained by
determining the total ‘in-city’ percentages of property,
2020] HONIGMAN V DETROIT 315
OPINION OF THE COURT

payroll and sales.” (Emphasis added.) Together, §§ 18

and 20 establish the framework upon which city taxes
are to be calculated under the business allocation
percentage method where the net profits of a business
derive from activities conducted both inside and out-
side of the city. Stated otherwise, only that portion of
net profits from business activities conducted within
the city is subject to the city tax.
An assessment of these provisions makes reasonably
clear that the general inquiry relating to the apportion-
ment of the net profits of a business focuses upon where
the profit-earning business activity takes place. And
that is also the specific inquiry dictated by the first two
apportionment factors. In calculating the property fac-
tor, it must be determined which properties are “situ-
ated within the city.” MCL 141.621. And in calculating
the payroll factor, it must also be determined which
services were “performed within the city.” MCL 141.622.
Each of these factors—concerning a taxpayer’s capital
investment and labor costs—are clearly focused upon
the location of the profit-earning business activity.
Returning again to the revenue factor, we believe
that the phrase “services rendered in the city” is also
focused upon the location of the profit-earning business
activity, which in the instant case is comprised of the
legal work performed, i.e., done or carried out, by
Honigman attorneys. In other words, where the rev-
enue factor is read in context alongside the other two
apportionment factors, in addition to other broader
provisions of the UCITO that employ the same phrase
“services rendered,” we are convinced that the appor-
tionment of revenue under this factor is also determined
on the basis of the location at which the business
activity—in this case, the legal work—has taken place.
Accordingly, “services rendered” under the revenue fac-
316 505 MICH 284 [May
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tor encompasses revenue for all services performed, i.e.,

done or carried out within the city, even when those
services were performed for out-of-city clients. And in
this way, the Legislature has effectively adopted an
“origin test” for services under the revenue factor.31

D. “PERFORMED” & “RENDERED” IN CONTEXT

We recognize that the Legislature’s use of the dis-

tinctive terms “performed” and “rendered” within the

31
Honigman argues against the Court’s conclusion that the Legisla-
ture adopted an “origin test” for the sale of services on the basis that it
would result in duplication of the payroll factor. This critique is not
new—as noted earlier, the Uniform Law Commissioners offered a
similar one during discussions leading to the adoption of the UDITPA in
1957. See Construing the Uniform Division of Income for Tax Purposes
Act, 45 U Chi L Rev at 773-774 (noting that the commissioners were “of
the opinion that [a sales factor with an origin test] would merely
duplicate the property and payroll factors which emphasize the activity
of the manufacturing state”) (quotation marks and citation omitted;
alteration in original). But as already noted, that criticism did not
preclude the UDITPA drafters or our Legislature from expressly adopt-
ing such a test for the sale of services. See supra note 13. While creating
an apportionment scheme free entirely of overlapping factors may
conceivably be a preferable or a more logical taxing approach, “[p]erfect
solutions are seldom to be found in tax policy questions; in most cases,
adequate solutions are the best that can be devised.” Lynn, The Uniform
Division of Income for Tax Purposes Act, 19 Ohio St L J 41, 53 (1958). In
recent decades, the goal of a uniform apportionment methodology has
increasingly given way to policy concerns about economic development
and, as a result, states have been moving away from an equally
weighted three-factor apportionment formula toward a more heavily
weighted receipts factor. See Hellerstein, Lessons of US Subnational
Experience for EU CCCTB Initiative, A Common Consolidated Corporate
Tax Base for Europe (Schön, Schreiber & Spengel eds), p 153 (“Today
roughly three-quarters of the states with corporate income taxes place
at least half the weight on receipts and close to a dozen have moved or
are in the process of moving towards a formula based entirely on
receipts.”). Since this critique has not thus far prevented the adoption of
an “origin test” for the sale of services within other taxing statutes, it
would be unwarranted for us to conclude that this consideration
2020] HONIGMAN V DETROIT 317
OPINION OF THE COURT

same tax statute might reasonably suggest, as the

Court of Appeals concluded, that the Legislature in-
tended these terms to have distinctive meanings—
specifically, that “perform” signifies “to carry out an
action” and “render” signifies “to deliver.” After all,
“[w]hen the Legislature uses different words, the
words are generally intended to connote different
meanings.” US Fidelity & Guaranty Co v Mich Cata-
strophic Claims Ass’n (On Rehearing), 484 Mich 1, 14;
795 NW2d 101 (2009) (emphasis added).32 And this
precludes such a reading of the UCITO. In any event, we are not aware
of any rule of interpretation (and none here has been offered) that
disfavors an otherwise reasonable interpretation of a taxing statute that
yields to some degree overlapping apportionment factors. Indeed, the
argument in this regard is not an argument of interpretation at all but
an argument of policy, better directed to the Legislature.
32
There are, however, a variety of exceptions to this general rule, for
the “general rule” is perhaps better described as a default “presump-
tion.” Most relevantly, this Court will not attribute distinctive meanings
to distinctive terms where, in viewing these terms in context, the
coherence of the statutory provision as a whole would be undermined. A
statute must be read in its entirety and words must be assigned
meanings that are in harmony with the whole of the statute. Sweatt, 468
Mich at 179. More specific exceptions may also pertain in circumstances
(a) in which two words necessarily have the same commonly understood
meaning, see, e.g., People v Thompson, 477 Mich 146, 153-154; 730
NW2d 708 (2007) (concluding that “keep” is synonymous with “main-
tain,” and “that these two terms are separated by the word ‘or’ does not
give [this Court] the authority to give these two terms distinctive
meanings when they are commonly understood to have the same
meaning”); (b) in which different words constitute synonyms used to
convey varying degrees of the same conduct, see, e.g., People v Greene,
255 Mich App 426, 440; 661 NW2d 616 (2003) (finding that “impede” and
“prevent” are synonyms presenting “only degrees of difference in the
same conduct”); (c) in which words located within a listing have related
meanings, see, e.g., Rovas, 482 Mich at 114-115 (defining “mislead,”
“deceive,” and “false” in a similar fashion by applying noscitur a sociis,
which is “ ‘the principle that words grouped in a list should be given
related meaning’ ”), quoting Griffith v State Farm Mut Auto Ins Co, 472
Mich 521, 533; 697 NW2d 895 (2005); or (d) in which a legislative body
has sought in a thesaurus-like manner to list as many similar terms as
318 505 MICH 284 [May
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Court is well aware that it should avoid, when reason-

ably possible, the adoption of essentially synonymous
definitions of distinctive terms without the most care-
ful consideration of how those terms will come to be
understood within a statutory scheme. However, this
maxim of jurisprudence is a “general rule” and “may
not apply in every situation.” Bauserman v Unemploy-
ment Ins Agency, 503 Mich 169, 184 n 10; 931 NW2d
539 (2019) (emphasis omitted). And in the final analy-
sis, we believe the Court of Appeals’ reliance upon this
single rule of interpretation constitutes a failure to
give meaning to the statute in its entirety and in its
overall context. That is, despite the Legislature’s use of
the distinctive terms “performed” and “rendered,” we
believe these terms should be understood as having
similar meanings within the statute. “Performed” as
employed in § 22 means “to carry out” and connotes a
similar meaning as “rendered” in § 23, meaning, in
context, “to do (a service) for another.” Merriam-
Webster’s Collegiate Dictionary (11th ed). Thus, we
believe the Legislature intended that both revenue for
“services rendered in the city” and compensation for
“services performed within the city” be calculated in a
similar manner—each predicated upon where the ser-
vice has been done or carried out. The Court of Appeals
rejected the same conclusion as it dutifully grappled
with the meanings of these terms—“Why would the
Legislature use the word ‘render’ to mean ‘perform’ by
way of the verb ‘to do,’ when it would have been much
simpler and clearer to simply reuse the § 22 word
‘perform’?” Honigman, 322 Mich App at 674.
To be clear, we do not conclude the two terms possess
identical meanings, just as we do not conclude they
possible in an effort to ensure that no semantic gaps are left regarding
some intended element of statutory breadth or coverage.
2020] HONIGMAN V DETROIT 319
OPINION OF THE COURT

possess entirely distinctive meanings. Rather, we con-

clude the terms are similarly defined—in which each
looks in common to where a service has been done or
carried out—but nonetheless each is to be given a
distinctive connotation from the distinctive context in
which each is situated within the statute. That is,
review of the UCITO evidences that the Legislature
consistently uses “performed” in provisions referring to
the actions of an employee in relation to his or her
compensation and that the Legislature consistently
uses “rendered” in provisions referring to the comple-
tion of professional services for another—in particular,
on behalf of a client—and thus that pertain to business
or firm earnings, such as profits and revenues.
This contextual distinction is perhaps best illus-
trated by the confluence of §§ 22 and 23. Section 22
pertains to “the total compensation paid to employees
for work done or for services performed within the
city . . . .” MCL 141.622 (emphasis added). This lan-
guage connects the employee’s performance of services
to his or her compensation from the employer. How-
ever, § 23 pertains to the “gross revenue of the taxpayer
derived from sales made and services rendered in the
city . . . .” MCL 141.623 (emphasis added). This lan-
guage does not pertain to the employee’s performance
of services but instead connects the taxpayer’s revenue
to the process by which the business or firm provides
services for others, in particular, to its clients.33 And

33
This contextual distinction is further illustrated in considering the
definition of “compensation” under MCL 141.604(2) in conjunction with
the payroll factor. Compensation is defined as “salary, pay or emolument
given as compensation or wages for work done or services rendered . . . .”
MCL 141.604(2) (emphasis added). When incorporating the definition of
“compensation” into the payroll factor, it is clear that this factor is
calculated based upon the “compensation or wages for work done or
services rendered,” id., that is “paid to employees for work done or for
320 505 MICH 284 [May
OPINION OF THE COURT

despite the distinctive contexts in which these terms

are used, both compensation for “services performed
within the city” under § 22 and revenue derived from
“services rendered in the city” under § 23 are calcu-
lated in a similar manner, based upon where the
services have been done or carried out.34
And thus in response to the Court of Appeals, it is
this contextual distinction that underlies the Legisla-
ture’s rationale of employing separate terms through-
out the statute even where these terms are intended to
have an essentially common meaning and focusing the
UCITO’s analysis upon where a service has been
performed or carried out, not where it has been finally
delivered. And it is this same contextual distinction
that allows this Court ultimately to set aside the usual
interpretive presumptions arising from the Legisla-
ture’s use of two such closely related terms as “per-
formed” and “rendered.” Our recognition of the textual
relationship of these terms as they appear within the
UCITO is not a matter of mere academic or philological
scholarship but rather explains precisely why a juris-
prudential proposition of great pedigree and logic—one
services performed within the city,” MCL 141.622. Again, the Legisla-
ture’s use of “rendered” pertains to services done for another, while the
use of “performed,” although it pertains to those same services, does so in
the specific context in which those services have been carried out on
behalf of, and in exchange for, an employee’s compensation from his or her
employer.
34
While these two provisions provide the most pertinent example,
our review of the UCITO reveals that many of its provisions evidence
this same distinction in which the Legislature has clearly employed
“services performed” and “services rendered” in the same contextual
manner. “Rendered” is consistently used in referring to the taxpayer’s
earnings for services done for another, as evidenced by MCL 141.623;
MCL 141.618; MCL 141.620; MCL 141.612; MCL 141.614; and
“performed” is consistently used in referring to compensation for
services performed by an employee, as evidenced by MCL 141.622;
MCL 141.651(b); MCL 141.654; MCL 141.657(2)(b).
2020] HONIGMAN V DETROIT 321
OPINION OF THE COURT

understandably given credence by both the Court of

Appeals and Honigman, a law firm of great distinction
—should be held inapplicable in the present case, de-
spite the fact that this same proposition was most likely
applied to cases decided last month and will most likely
be applied to cases decided next month. The inapplica-
bility of this proposition in the instant case is merely
illustrative that there are sometimes competing inter-
pretative propositions that must be balanced and har-
monized in order for the Legislature’s genuine inten-
tions to be faithfully discerned. We are confident that we
have done what is proper in applying principles of
textual interpretation to this dispute and in reaching an
understanding of the statute that is in closest accord
with the intentions of the lawmaking branch of our
government. As a result, we are not persuaded by the
Court of Appeals that the use of distinctive terms within
the UCITO necessarily communicates, as that Court
believed, a legislative intention thereby to communicate
distinctive meanings to the critical terms in this case,
“perform” and “render.”
And to further respond to the Court of Appeals, it is
this same contextual distinction that also explains
why the Legislature did not intend these two terms to
have identical meanings. The distinctive contexts in
which these terms appear not only explain why the
Legislature has employed separate terms to describe
a common legal approach to determining which ser-
vices are taxable, and which are not, but why the
distinctive connotations of these terms must be re-
spected and maintained and why “performed” and
“rendered” cannot be viewed as simply interchange-
able throughout the statute—the terms have distinc-
tive connotations, or “suggestive significance[s],” Web-
ster’s New Collegiate Dictionary (1960), in which at
least for purposes of the present statute, “performed”
322 505 MICH 284 [May
OPINION OF THE COURT

relates only to an employee’s compensation for ser-

vices carried out for an employer and “rendered”
relates only to earnings, such as net profits, derived
from services done on behalf of clients.

IV. CONCLUSION

We conclude that upon close review of the UCITO, it

is reasonably clear that “rendered” means, as set forth
by the city of Detroit, “to do (a service) for another,” and
not, as set forth by Honigman, “to transmit to another:
DELIVER.” Merriam-Webster’s Collegiate Dictionary
(11th ed). Thus, the Legislature adopted an “origin
test,” rather than a destination or market-based test,
for the calculation of revenue from “services” under the
revenue factor. Section 23 encompasses all legal ser-
vices performed, i.e., done or carried out, within the
city without regard to where those services are deliv-
ered. In so holding, we acknowledge that the terms
“performed” and “rendered” generally have similar
meanings and are effectively equivalent in their rela-
tive purposes within the statute. However, the distinc-
tive contexts in which these terms appear accounts for
the use of different words despite their similar mean-
ings. In all, it is the interpretation of the city, rather
than that of Honigman, in our judgment, that sets
forth the most reasonable understanding of the rev-
enue factor and that is most harmonious with the
statutory framework as a whole. Accordingly, the Court
of Appeals erred when it held that the determinative
consideration under § 23 is where, in the end, the
services are delivered to the client. Therefore, we
reverse the judgment of that Court and remand to the
Tribunal for further proceedings.

ZAHRA, BERNSTEIN, and CAVANAGH, JJ., concurred

with MARKMAN, J.
2020] HONIGMAN V DETROIT 323
CONCURRING OPINION BY VIVIANO, J.

VIVIANO, J. (concurring). I concur in the majority’s

holding that MCL 141.623 encompasses all legal ser-
vices done or carried out in the city. And I agree with
much of the analysis leading to that holding, in particu-
lar the historical discussion and comparative analysis of
the Uniform City Income Tax Ordinance (UCITO), MCL
141.601 et seq., and Michigan’s analogous state-taxation
statutes. I part ways, however, with the majority over
Part III(D) of the opinion, which confusingly endeavors
to create ever-so-slight daylight between the terms
“render” and “perform,” characterizing them as “simi-
lar” but not the same. I write to explain why this effort
fails, why it is unnecessary, and why it undermines the
majority’s conclusion that, as used in the UCITO, these
terms mean the same thing.
It is helpful, at the outset, to keep in mind what this
Court is called upon to decide in the case. The issue is
whether the phrase “services rendered” in § 23 of the
UCITO, MCL 141.623, includes work “performed” in the
city of Detroit for clients outside the city, despite the fact
that § 22 of the UCITO, MCL 141.622, expressly em-
ploys the phrase “services performed.” Courts usually
adhere to the presumption of consistent usage, which
holds that different words have different meanings.1
The Michigan Tax Tribunal concluded that the pre-
sumption did not apply here because the “difference [in
wording] reflects nothing more than the syntax of the
English language.” The Court of Appeals disagreed,
hewing to the general consistent-usage presumption
and differentiating the definitions of “rendered” and
“performed” by interpreting the former as focusing on
where services were delivered to a client.2

1
See notes 8 and 9 of this opinion and the accompanying text.
2
Honigman Miller Schwartz and Cohn LLP v Detroit, 322 Mich App
667, 673-675; 915 NW2d 383 (2018).
324 505 MICH 284 [May
CONCURRING OPINION BY VIVIANO, J.

Through most of its opinion, including at the end,

the majority seems to conclude that the terms have
the same meaning. It defines “performed” to mean
“ ‘to carry out an action . . . .’ ”3 “Render,” according to
the majority, means “ ‘to do (a service) for another[.]’ ”4
Given these definitions, the majority concludes that
“services rendered,” in the context of § 23, “encom-
passes revenue for all services performed, i.e., done or
carried out within the city[.]”5 To this point in the
opinion—before the discussion of the terms’ supposed
distinctive connotations—the majority ably explains
the textual, contextual, and historical bases for its
interpretations.6 And it is this analysis that provides
the holding and relevant interpretations, which are
repeated in the introduction, body, and conclusion of
the majority opinion. It is hard to imagine a plainer
way of saying that “services rendered” means “services
performed.” At times, the majority acknowledges that
the definitions it lands on—ones with which I largely
agree—mean essentially the same thing.7 And because

3
Ante at 299 n 7, quoting Merriam-Webster’s Collegiate Dictionary
(11th ed).
4
Ante at 307, quoting Merriam-Webster’s Collegiate Dictionary (11th
ed); see also ante at 322.
5
Ante at 315-316; see also ante at 290 (“[W]e conclude that § 23
encompasses all legal services performed, i.e., done or carried out within
the city without regard to where those services are delivered . . . .”); ante
at 322 (“Section 23 encompasses all legal services performed, i.e., done or
carried out, within the city without regard to where those services are
delivered.”).
6
See ante at 295-316.
7
See ante at 322; see also ante at 318 (“[W]e believe these terms
should be understood as having similar meanings within the stat-
ute.”). However, the majority has inconsistently adopted a definition
for the intransitive form of “perform” while adopting a definition for
the transitive form of “render.” Although it is not clear, it appears both
terms are used transitively in the statute. Using the same dictionary,
2020] HONIGMAN V DETROIT 325
CONCURRING OPINION BY VIVIANO, J.

this is enough to decide that “rendered” refers to the

place of performance, not to the place of delivery or
benefit, the majority’s interpretive task should be
complete.
For the majority, however, it is not. Instead, it labors
on, in search of a meaningful distinction between the
two terms. Why? Not because the distinction it dis-
cerns directly affects the outcome; by the time it
reaches this portion of its contextual analysis, the
majority has already adopted the crucial definitions
that dispose of the case. Rather, the majority spins its
interpretive wheels to avoid the presumption of consis-
tent usage. As noted, under that interpretive principle,
words are “presumed to bear the same meaning
throughout a text” and “a material variation in terms
suggests a variation in meaning.”8 It is a canon this
Court applies when appropriate.9
I would adopt the definition of the transitive form of both words and
interpret “perform” to mean “CARRY OUT, DO[.]” Merriam-Webster’s Col-
legiate Dictionary (11th ed). It is also worth noting that while courts
should ordinarily use a dictionary contemporaneous with the statute’s
enactment, see Ronnisch Constr Group, Inc v Lofts on the Nine, LLC,
499 Mich 544, 563 n 58; 886 NW2d 113 (2016) (“In ascertaining the
meaning of a term, a court may determine the meaning at the time the
statute was enacted by consulting dictionaries from that time.”), I
agree with the majority that the definitions from that period are not
meaningfully different from the ones the majority employs in its
opinion. See Webster’s New World Dictionary of the American Lan-
guage (1960) (defining “perform” as, among other things, “to carry out”;
defining “render” as “to do (a service, etc.)”).
8
Scalia & Garner, Reading Law: The Interpretation of Legal Texts, (St.
Paul: Thomson/West, 2012), § 25; see also 2A Sutherland, Statutes and
Statutory Construction, § 46:6, p 261 (“Different words used in the same,
or a similar, statute are assigned different meanings whenever pos-
sible.”).
9
See, e.g., United States Fidelity Ins & Guaranty Co v Mich Cata-
strophic Claims Ass’n (On Rehearing), 484 Mich 1, 14; 795 NW2d 101
(2009) (“When the Legislature uses different words, the words are
generally intended to connote different meanings.”).
326 505 MICH 284 [May
CONCURRING OPINION BY VIVIANO, J.

The majority labels this “a jurisprudential proposi-

tion of great pedigree and logic,” but then escapes its
grasp by inventing a brand new exception to the canon
that it claims is satisfied by the contextual distinction
it has identified.10 “Rendered,” the majority explains, is
used in contexts describing labor on behalf of another
“that pertain[s] to business or firm earnings, such as
profits and revenues.”11 By contrast, “performed” ap-
pears in the statute when the services relate to an
individual’s compensation.12
I am unpersuaded for several reasons. To begin, the
majority’s position cannot be reconciled with numerous
provisions in the UCITO. Take, for example,
MCL 141.604(2), which defines “compensation” as “sal-
ary, pay or emolument given as compensation or wages
for work done or services rendered . . . .”13 Even more

10
Ante at 320; see also ante at 320 (“And it is this . . . contextual
distinction that allows this Court ultimately to set aside the usual
interpretive presumptions arising from the Legislature’s use of two such
closely related terms as ‘performed’ and ‘rendered.’ ”).
11
Ante at 319; see also ante at 320 n 34 (“ ‘Rendered’ is consistently
used in referring to the taxpayer’s earnings for services done for
another, . . . and ‘performed’ is consistently used in referring to compen-
sation for services performed by an employee . . . .”).
12
See ante at 319.
13
The majority mentions MCL 141.604(2) briefly and only as a prop
for its interpretation of § 22, the payroll factor. It states, “When
incorporating the definition of ‘compensation’ into the payroll factor, it is
clear that this factor is calculated based upon the ‘compensation or
wages for work done or services rendered,’ [MCL 141.604(2)], that is
‘paid to employees for work done or for services performed within the
city,’ MCL 141.622.” Ante at 319-320 n 33. Without more, the majority
proclaims that this simple substitution proves its point. But I do not see
how. Incorporating the full definition of “compensation” into § 22 would
create a redundancy at best and be nonsensical at worst: “the taxpayer
shall ascertain the percentage which the total [‘salary, pay or emolu-
ment given as compensation or wages for work done or services
rendered’] paid to employees for work done or for services per-
2020] HONIGMAN V DETROIT 327
CONCURRING OPINION BY VIVIANO, J.

directly, nonresident individuals can be taxed under

MCL 141.613(a) “[o]n a salary, bonus, wage, commis-
sion, and other compensation for services rendered as
an employee for work done or services performed in the
city.” In a similar manner, MCL 141.665 connects
compensation with the term “rendered” by providing
tax credits for city residents who “received . . . compen-
sation for work done or services performed or ren-
dered” outside the city and who paid taxes to another
municipality on that income. These provisions contra-
dict the majority’s contention that “ ‘performed’ is
consistently used”—in contradistinction to “rendered”
—“in referring to compensation for services performed
by an employee[.]”14
More importantly, the majority never gets around to
explaining how the distinction sheds light on the
semantic content of the terms. Do the connotations
have any bearing on what the words actually mean? As
noted above, context undoubtedly can shed light on a
word’s meaning.15 But here, the connotations are not
even mentioned in the critical passages of the majority
opinion that determine the terms’ meanings, and so
they are not part of the meanings the majority must
compare when considering the presumption of consis-
tent usage, i.e., in deciding whether the definitions are
the same for purposes of that canon. Rather, the
majority settles on equivalent definitions for the two
different terms, then explains how those terms (bear-
formed . . . .” MCL 141.622, inserting the MCL 141.604(2) definition of
“compensation.” All this shows, to my mind, is that the terms “per-
formed” and “rendered” are interchangeable.
14
Ante at 320 n 34.
15
See King v Burwell, 576 US 473, 500-501; 135 S Ct 2480; 192 L Ed
2d 483 (2015) (Scalia, J., dissenting) (“Context always matters. Let us
not forget, however, why context matters: It is a tool for understanding
the terms of the law, not an excuse for rewriting them.”).
328 505 MICH 284 [May
CONCURRING OPINION BY VIVIANO, J.

ing the same meaning) appear in different contexts, all

without varying its interpretation of those terms. As a
result, this part of the majority’s contextual analysis
does not have a bearing on the linguistic meaning of
the relevant phrases, and it is therefore not part of any
legitimate interpretive effort to uncover statutory
meaning.16
The majority fails to translate its “distinctive conno-
tations” into a meaningful interpretation because,
even under the majority’s telling, the distinction is
diaphanous at best.17 Stated most simply, the major-
ity’s interpretation is that employees “perform” ser-
vices for compensation from their employer but “ren-
der” services on behalf of their employer to its clients.
In other words, the statute somehow treats as distinct
the same work done for the same employers by the
same employees. The majority itself acknowledges that
the services “performed” under MCL 141.622 are the
very same services “rendered” under MCL 141.623.18
There is no suggestion in the majority opinion that the
distinction has any practical significance, such as by
distinguishing who or what can be taxed. Indeed, both

16
See Hutton, Word Meaning and Legal Interpretation (New York:
Palgrave Macmillan, 2014), p 17 (“In reaching an interpretation, we
reach a contextually relevant determination of what the word (phrase,
text . . . ) meant.”); Reading Law, § 1, p 53 (“Any meaning derived from
signs involves interpretation . . . . Interpretation or construction is ‘the
ascertainment of the thought or meaning of the author of, or of the
parties to, a legal document, as expressed therein, according to the rules
of language and subject to the rules of law.’ ”) (citation omitted);
Sutherland, § 45:3, p 22 (“Every occasion to determine whether, and
how, a statute applies in a particular situation is by definition an
occasion to interpret it . . . .”); Cooley, Constitutional Limitations (5th
ed), p *38 (explaining that the purpose of interpretation is to “find[] out
the true sense of any form of words”).
17
See ante at 318-319.
18
See ante at 320 n 33.
2020] HONIGMAN V DETROIT 329
CONCURRING OPINION BY VIVIANO, J.

§ 22 and § 23 relate to taxation of business income, not,

for example, taxation of the employee’s income from
“compensation.” Thus, even assuming the distinction
exists, it offers little insight into how the statute
operates.
Because this portion of the contextual analysis
leaves the terms’ semantic content unchanged, the
majority has not pointed to a relevant distinction for
purposes of the consistent-usage canon. It has not, in
other words, shown that the different terms have
different meanings, such that the canon is inappli-
cable. The majority’s efforts instead amount to a dem-
onstration that different terms with the same meaning
have (supposedly) been used in different contexts,
followed by the conclusion that the consistent-usage
presumption can therefore be “set aside.”19 The un-
stated assumption lurking behind this argument is
that if different terms pop up in different contexts—
albeit, in close proximity in the same statute—there is
no general presumption against giving them the same
meaning. I have not come across any such version of
the canon. The canon speaks of different terms gen-
erally having different meanings—it does not say
different terms used in the same context generally
have different meanings, or that different terms in
different contexts can have the same meaning. In
essence, then, the majority ignores the real canon and
creates a straw-canon that does not apply to these
circumstances.

19
Ante at 320. Presumably, by “set aside” the majority means to say
that the canon does not apply because the terms are distinct enough
that they fall outside the canon’s scope. Why else spend pages purport-
ing to uncover a distinction that would otherwise have no bearing on the
case? Nothing suggests the majority means that the terms are equiva-
lent but the canon is inapplicable for some other reason.
330 505 MICH 284 [May
CONCURRING OPINION BY VIVIANO, J.

And to what end? The canon itself provides the

solution. Semantic canons are not absolute rules.20
They are useful because they capture how language is
generally used.21 But when the ordinary meaning of
the text runs contrary to a canon, we must follow the
text.22 The presumption of consistent usage, in particu-
lar, is just that: a presumption.23 It has long been
recognized as an imperfect tool for arriving at a text’s
meaning.24 “[M]ore than most other canons, this one

20
See Reading Law, § 3, p 59 (“No canon of interpretation is absolute.
Each may be overcome by the strength of differing principles that point
in other directions.”).
21
See, e.g., Slocum, Ordinary Meaning: A Theory of the Most Funda-
mental Principle of Legal Interpretation (Chicago: University of Chicago
Press, 2015), p 186 (noting that canons are justified to the extent they
“represent[] the way that language is normally used”); Reading Law,
§ 3, p 59 (“Principles of interpretation are guides to solving the puzzle of
textual meaning . . . .”).
22
See People v Pinkney, 501 Mich 259, 285 n 63; 912 NW2d 535 (2018)
(“ ‘[C]anons of construction are no more than rules of thumb that help
courts determine the meaning of legislation, and in interpreting a
statute a court should always turn first to one, cardinal canon before all
others. We have stated time and again that courts must presume that a
legislature says in a statute what it means and means in a statute what
it says there.’ ”), quoting Connecticut Nat’l Bank v Germain, 503 US 249,
253-254; 112 S Ct 1146; 117 L Ed 2d 391 (1992).
23
See, e.g., Kirtsaeng v John Wiley & Sons, Inc, 568 US 519, 540; 133
S Ct 1351; 185 L Ed 2d 392 (2013) (“We are not aware, however, of any
canon of interpretation that forbids interpreting different words used in
different parts of the same statute to mean roughly the same thing.”).
24
See, e.g., Black, Handbook on the Construction and Interpretation
of the Laws (1911), §§ 53-54, p 145 (“But the presumption . . . is not
controlling; and where it appears that, by giving it effect, an unrea-
sonable result will follow, and the manifest object of the statute be
defeated, the courts will disregard the presumption . . . .”); Bishop,
Commentaries on the Law of Statutory Crimes (1883), § 95a, p 86 (“In
a sort of general way it is sometimes worth considering, that, if a
particular word occurs repeatedly in a statute, or in different statutes
on the same subject, the meaning may, prima facie, be deemed
identical in all the places. . . . The presumption is in no form held to be
2020] HONIGMAN V DETROIT 331
CONCURRING OPINION BY VIVIANO, J.

assumes a perfection of drafting that, as an empirical

matter, is not often achieved.”25 Drafters “often (out of
a misplaced pursuit of stylistic elegance) use different
words to denote the same concept.”26 The presumption
conclusive, and the fact is sometimes very palpably otherwise. Even
the same word in a single sentence creating an offence has been
adjudged to have different meanings in different parts of the sen-
tence.”) (citations omitted); 1 Story, Commentaries on the Constitution
of the United States (4th ed), § 454, p 335 (“[I]t is by no means a correct
rule of interpretation to construe the same word in the same sense
wherever it occurs in the same instrument. It does not follow, either
logically or grammatically, that because a word is found in one
connection in the Constitution with a definite sense, therefore the
same sense is to be adopted in every other connection in which it
occurs.”); Smith, Commentaries on Statute and Constitutional Law
(1848), § 485, p 631 (“If an expression which is susceptible of different
meanings occurs more than once in the same statute, it may not have
the same signification in every instance in which it may be used, as it
may be governed by the subject matter in its immediate context . . . .”);
Lieber, Legal and Political Hermeneutics (Boston: Charles C Little &
James Brown, 1839), p 119 (“What we have said before includes the
rule, that we are by no means bound to take an ambiguous word in that
meaning, in which it may occur in another passage of the same text; for
words, as is well known, have different meanings in different con-
texts.”); de Vattel, The Law of Nations (1787), bk II, § 281, p 379 (“If
any one of those expressions that have many different significations,
are found more than once in the same piece, we cannot make it a law,
to take it every where in the same signification.”); Kavanaugh, Fixing
Statutory Interpretation, 129 Harv L Rev 2118, 2162 (2016) (“Similarly,
if two different terms are normally synonyms, requiring them to be
interpreted differently makes little sense. . . . When judges hew too
closely to this presumption, they may ditch the best reading of a statute
and instead improperly invent one of their own.”), reviewing Katzmann,
Judging Statutes (New York: Oxford University Press, 2014).
25
Reading Law, § 25, p 170.
26
Id.; see also Office of the Legislative Counsel, US House of Repre-
sentatives, House Legislative Counsel’s Manual on Drafting Style (Nov
1995), § 102(d)(4), p 3 (“If you have found the right word, don’t be afraid
to use it again and again. In other words, don’t show your pedantry by
an ostentatious parade of synonyms. Your English teacher may be
disappointed, but the courts and others who are straining to find your
meaning will bless you.”).
332 505 MICH 284
CONCURRING OPINION BY VIVIANO, J.

thus “ ‘readily yields’ ” when a fair reading of the text

requires.27 As the majority recognizes, we have not
been wedded to the presumption and instead have
concluded in numerous cases that it did not accurately
reflect the statute’s meaning.28
Here, I conclude that the presumption must yield.
The majority opinion, prior to Part III(D), explains why
“performed” and “rendered” share a common meaning
as used in § 22 and § 23. What the majority’s contex-
tual analysis shows, if anything, is not that the terms
bear some ineffable semantic distinction but, rather,
that they may have been used for stylistic variety.29 As
the meaning of “rendered” in § 23 is clear, I would not
obscure that meaning out of misguided obeisance to an
interpretive presumption that, by its own terms, often
gives way to relevant context.
For these reasons, I respectfully concur.

MCCORMACK, C.J., and CLEMENT, J., concurred with

VIVIANO, J.

27
Utility Air Regulatory Group v EPA, 573 US 302, 320; 134 S Ct 2427;
189 L Ed 2d 372 (2014), quoting Environmental Defense v Duke Energy
Corp, 549 US 561, 574; 127 S Ct 1423; 167 L Ed 2d 295 (2007); see also
Reading Law, § 25, p 171 (“Because it is so often disregarded, this canon
is particularly defeasible by context.”).
28
See ante at 317-318 n 32 (listing cases).
29
We do not, however, sit in review of the Legislature’s literary style;
“we ask only what the statute means.” Holmes, The Theory of Legal
Interpretation, 12 Harv L Rev 417, 419 (1899); see also Clam Lake Twp
v Dep’t of Licensing and Regulatory Affairs, 500 Mich 362, 373; 902
NW2d 293 (2017) (“Unambiguous statutes are enforced as written.”);
Manning, Textualism and Legislative Intent, 91 Va L Rev 419, 450 (2005)
(“The precise wording of any given statute may have been, for unknow-
able reasons, essential to its passage. Thus, efforts to augment or vary
the text in the name of serving a genuine but unexpressed legislative
intent risks displacing whatever bargain was actually reached through
the complex and path-dependent legislative process.”).
 TOMRA V TREAS DEP’T 333

TOMRA OF NORTH AMERICA, INC v DEPARTMENT OF TREASURY

Docket Nos. 158333 and 158335. Argued November 7, 2019 (Calendar

No. 3). Decided June 16, 2020.
TOMRA of North America, Inc., brought two separate actions in the
Court of Claims against the Department of Treasury, seeking a
refund for use tax and sales tax that plaintiff had paid on the
basis that plaintiff’s sales of container-recycling machines and
repair parts were exempt from taxation under the General Sales
Tax Act (GSTA), MCL 205.51 et seq., and the Use Tax Act (UTA),
MCL 205.91 et seq. Plaintiff moved for summary disposition,
seeking a ruling on the question whether plaintiff’s container-
recycling machines and repair parts perform, or are used in, an
industrial-processing activity under the GSTA and UTA. The
Court of Claims, MICHAEL J. TALBOT, J., denied plaintiff’s motion
and instead granted summary disposition in favor of defendant,
holding that plaintiff’s container-recycling machines and repair
parts were not used in an industrial-processing activity and that
plaintiff therefore was not entitled to exemption from sales and
use tax for the sale and lease of the machines and their repair
parts. The Court of Claims found that the tasks that plaintiff’s
machines performed occurred before the industrial process began,
reasoning that the activities listed in MCL 205.54t(3) and
MCL 205.94o(3) are only industrial-processing activities when
they occur between the start and end of the industrial process as
defined by MCL 205.54t(7)(a) and MCL 205.94o(7)(a), respec-
tively. Plaintiff appealed, and the Court of Appeals consolidated
the appeals. The Court of Appeals, GADOLA, P.J., and RIORDAN, J.
(K. F. KELLY, J., dissenting), reversed, declining to interpret
MCL 205.54t(7)(a) and MCL 205.94o(7)(a) as placing a temporal
limitation on the activities listed in MCL 205.54t(3) and
MCL 205.94o(3), respectively. 325 Mich App 289 (2018). Defen-
dant sought leave to appeal in the Supreme Court, and the
Supreme Court granted the application. 503 Mich 987 (2019).
In a unanimous opinion by Justice VIVIANO, the Supreme Court
held:
Plaintiff’s sales of container-recycling machines and repair
parts were exempt from taxation under the industrial-processing
334 505 MICH 333 [June

exemption because the temporal limitation specified in the gen-

eral statutory definition of industrial processing under MCL
205.54t(7)(a) of the GSTA and MCL 205.94o(7)(a) of the UTA did
not apply to the enumerated list of industrial-processing activi-
ties in MCL 205.54t(3) and MCL 205.94o(3), respectively; the rule
of strict construction of tax exemptions was inapplicable in this
case because the statutes were unambiguous.
1. There is a canon of construction that tax exemptions must be
strictly construed in favor of the government, i.e., against the
finding of an exemption. The preference against tax exemptions is
a judicially created substantive canon, meaning that it is premised
on certain policies or political objectives instead of its usefulness in
uncovering a statute’s ordinary meaning. Because the canon re-
quiring strict construction of tax exemptions does not help reveal
the semantic content of a statute, it is a canon of last resort. That
is, courts should employ it only when an act’s language, after
analysis and subjection to the ordinary rules of interpretation,
presents ambiguity. In this case, the canon was inapplicable
because the statutes were unambiguous: their ordinary meaning
was discernible by reading the text in its immediate context and
with the aid of appropriate canons of construction.
2. The GSTA imposes taxes on the sale of goods, and the UTA
imposes taxes on goods purchased outside the state for use in the
state. To avoid the double taxation of a product that would result
from exacting both use and sales taxes, the Legislature exempted
certain property used or consumed in industrial processing from
the taxes in each act. Pursuant to MCL 205.54t(1)(b) and (c) of the
GSTA and MCL 205.94o(1)(b) and (c) of the UTA, the exemption
covers, among other things, tangible personal property that is
intended for ultimate use in and is used in industrial processing
by an industrial processor or is used by a person, whether or not
an industrial processor, to perform an industrial-processing ac-
tivity for or on behalf of an industrial processor. The industrial-
processing exemption provides both a general definition of indus-
trial processing, MCL 205.54t(7)(a); MCL 205.94o(7)(a), and also
a list of specific activities that constitute industrial-processing
activities, MCL 205.54t(3); MCL 205.94o(3). Subsection (7)(a)
generally defines industrial processing as the activity of convert-
ing or conditioning tangible personal property by changing the
form, composition, quality, combination, or character of the prop-
erty for ultimate sale at retail or for use in the manufacturing of
a product to be ultimately sold at retail. Subsection (7)(a) further
provides that industrial processing begins when tangible per-
sonal property begins movement from raw-materials storage to
2020] TOMRA V TREAS DEP’T 335

begin industrial processing and ends when finished goods first

come to rest in finished-goods-inventory storage. The second
sentence of Subsection (7)(a) thus establishes a temporal period
during which industrial processing must occur, spanning from
when property begins movement from raw-materials storage into
processing until the finished goods enter inventory storage.
Subsection (3) states that industrial processing includes 11 enu-
merated activities. In this case, plaintiff’s machines facilitated
the collection of raw materials outside the time frame described
in Subsection (7)(a). However, Detroit Edison Co v Dep’t of
Treasury, 498 Mich 28 (2015), explained that Subsection (7)(a)
and Subsection (3) are discrete inquiries—Subsection (7)(a) does
not establish a threshold requirement for an exemption as long as
Subsection (3) applies. Some of the activities listed in Subsection
(3) fall outside the period specified in the general definition but
are still considered industrial-processing activities. Extending
the temporal limitation in Subsection (7)(a) to all requests for
exemptions would leave portions of Subsection (3) without mean-
ing or function within the statute. Instead, interpreting Subsec-
tion (3) as the more specific provision resolves the conflict and
accords the statutes their most natural and ordinary meanings.
Therefore, the Court of Appeals correctly held that the temporal
limitation in Subsection (7)(a) does not apply to the industrial-
processing activities listed in Subsection (3).
Affirmed and remanded to the Court of Claims for further
proceedings.

TAXATION — GENERAL SALES TAX ACT — USE TAX ACT — WORDS AND PHRASES —
“INDUSTRIAL PROCESSING.”
MCL 205.54t(7)(a) of the General Sales Tax Act (GSTA), MCL 205.51
et seq., and MCL 205.94o(7)(a) of the Use Tax Act (UTA), MCL
205.91 et seq., provide a general statutory definition of industrial
processing and further establish a temporal period during which
industrial processing must occur, spanning from when the prop-
erty begins movement from raw-materials storage into processing
until the finished goods enter inventory storage; MCL 205.54t(3) of
the GSTA and MCL 205.94o(3) of the UTA provide a list of specific
activities that constitute industrial processing; the temporal limi-
tation specified in MCL 205.54t(7)(a) and MCL 205.94o(7)(a) does
not apply to the enumerated list of industrial-processing activities
in MCL 205.54t(3) and MCL 205.94o(3).

Honigman LLP (by June Summers Haas and Daniel

L. Stanley) for plaintiff.
336 505 MICH 333 [June

Dana Nessel, Attorney General, Fadwa A.

Hammoud, Solicitor General, and Scott L. Damich and
Randi M. Merchant, Assistant Attorneys General, for
defendant.

Amici Curiae:

Miller, Canfield, Paddock and Stone, PLC (by

Clifford W. Taylor, Paul D. Hudson, and Michael C.
Simoni) for the Michigan Manufacturers Association.

Fraser Trebilcock Davis & Dunlap, PC (by Paul V.

McCord) for the Michigan Retailers Association.

The Mike Cox Law Firm (by Jackie J. Cook) for the
Taxation Section of the State Bar of Michigan.

VIVIANO, J. At issue is whether plaintiff TOMRA of

North America, Inc.’s container-recycling machines and
repair parts are excluded as a matter of law from
qualifying for the industrial-processing-activity exemp-
tions under MCL 205.54t of the General Sales Tax Act
(GSTA), MCL 205.51 et seq., and MCL 205.94o of the
Use Tax Act (UTA), MCL 205.91 et seq. Specifically, we
must determine whether the temporal limitation speci-
fied in the general statutory definition of “industrial
processing,” MCL 205.54t(7)(a); MCL 205.94o(7)(a), ap-
plies to the enumerated list of “industrial processing”
activities in MCL 205.54t(3) and MCL 205.94o(3), respec-
tively. To answer this question, we first clarify that be-
cause the statutes are unambiguous, the interpretive
principle that tax exemptions are strictly construed is
inapplicable to this case. Under the proper interpretive
standards, we hold that the temporal limitation in MCL
2020] TOMRA V TREAS DEP’T 337

205.54t(7)(a) and MCL 205.94o(7)(a) does not apply to the

activities listed in MCL 205.54t(3) and MCL 205.94o(3),
respectively.

I. FACTS AND PROCEDURAL HISTORY

TOMRA sells and leases reverse-vending machines,

the bottle- and can-recycling machines commonly found
in grocery stores used to help retailers comply with
Michigan’s bottle-deposit law, MCL 445.571 et seq. The
company also sells repair parts for the machines. The
machines sort the bottles and cans, which are then
placed in bins and brought to a recycling facility. The
facility then sells the bottles and cans to manufacturers
who use the materials in other products.
TOMRA claimed that its machines were exempt
from both the GSTA and the UTA under each act’s
industrial-processing exemption.1 After an audit by
defendant, the Department of Treasury, TOMRA
sought a determination from the Court of Claims that
its machines fall within the industrial-processing ex-
emptions. In granting summary disposition to the
department, the Court of Claims found that the tasks
that TOMRA’s machines perform occur before the
industrial process begins; therefore, TOMRA could not
avail itself of the industrial-processing exemptions.
The Court of Claims reasoned that the activities listed
in MCL 205.54t(3) (establishing that industrial
processing includes 11 enumerated activities) and
MCL 205.94o(3) (same) are only industrial-processing
activities when they occur between the start and end of
the industrial process as defined by MCL 205.54t(7)(a)
and MCL 205.94o(7)(a), respectively.

1
See MCL 205.54t; MCL 205.94o.
338 505 MICH 333 [June

The Court of Appeals, in a split, published decision,

reversed the Court of Claims, declining to interpret
MCL 205.54t(7)(a) and MCL 205.94o(7)(a) as placing a
temporal requirement on the activities listed in MCL
205.54t(3) and MCL 205.94o(3), respectively.2 The
Court explained, “The statute does not state
that industrial processing must begin this way but
rather states that when tangible personal property
begins movement from raw-materials storage to begin
industrial processing, one can rest assured that indus-
trial processing has begun.”3 The Court held that
MCL 205.54t and MCL 205.94o do not preclude indus-
trial processing from “occur[ring] without the initial
step of moving raw materials from storage, or when
tangible items are never in raw-materials storage,”
and reversed and remanded.4 Judge K. F. KELLY
dissented, arguing that the temporal limitation ap-
plied to the activities listed in MCL 205.54t(3) and
MCL 205.94o(3).5

II. STANDARD OF REVIEW

“We review de novo a trial court’s determination

regarding a motion for summary disposition. Summary
disposition is appropriate if there is no genuine issue

2
TOMRA of North America, Inc v Dep’t of Treasury, 325 Mich App
289, 301; 926 NW2d 259 (2018).
3
Id.
4
Id. at 302-303.
5
Id. at 304 (K. F. KELLY, J., dissenting).
2020] TOMRA V TREAS DEP’T 339

regarding any material fact and the moving party is

entitled to judgment as a matter of law.”6

III. ANALYSIS

A. INTERPRETIVE STANDARDS

Before addressing the question presented in this

case, we first take this opportunity to clarify the
interpretive standards applicable to statutory tax ex-
emptions. In every case requiring statutory interpreta-
tion, we seek to discern the ordinary meaning of the
language in the context of the statute as a whole.7 But
with regard to tax exemptions, the oft-repeated rule is
that they must be strictly construed in favor of the
government, i.e., against the finding of an exemption.8
Stated more fully, this canon of construction provides
that “ ‘[a]n intention on the part of the legislature to
grant an exemption from the taxing power of the State
will never be implied from language which will admit
of any other reasonable construction. Such an inten-
tion must be expressed in clear and unmistakable
terms, or must appear by necessary implication from
the language used . . . .’ ”9 The Court of Appeals below
referred to this commonly recited principle, and the

6
Clam Lake Twp v Dep’t of Licensing & Regulatory Affairs, 500 Mich
362, 372; 902 NW2d 293 (2017) (quotation marks and citations omitted).
7
Ally Fin Inc v State Treasurer, 502 Mich 484, 493; 918 NW2d 662
(2018).
8
See, e.g., Evanston YMCA Camp v State Tax Comm, 369 Mich 1, 7;
118 NW2d 818 (1962).
9
Detroit v Detroit Commercial College, 322 Mich 142, 148-149; 33
NW2d 737 (1948), quoting 2 Cooley, Taxation (4th ed), § 672, p 1403.
340 505 MICH 333 [June

department invokes it in this Court.10 We therefore

must determine, at the outset, the canon’s proper
function.
The preference against tax exemptions is a judicially
created substantive canon, meaning that it is premised
on certain policies or political objectives instead of its
usefulness in uncovering a statute’s ordinary mean-
ing.11 In other words, it loads the dice in favor of one
interpretation, not because that interpretation is more
likely to be semantically correct but because it better
serves policy objectives. The justification for the canon
has long been tied to political theory. When it first
appeared in our caselaw in 1854, the Court explained
that tax exemptions were “construed strictly” because
they were “in derogation of equal rights.”12 “Equal
rights” referred to the Jacksonian-era political doctrine
—which found its way into the law in various

10
TOMRA, 325 Mich App at 296.
11
See generally Slocum, Ordinary Meaning: A Theory of the Most
Fundamental Principle of Legal Interpretation (Chicago: University of
Chicago Press, 2015), p 174 (“[S]ubstantive canons are judge created
and represent a wide range of concerns that are relevant to the law” and
that “are not tied to particular linguistic phenomena . . . .”); Scalia &
Garner, Reading Law: The Interpretation of Legal Texts (St. Paul:
Thomson/West, 2012), p 362 (“But almost always, the only announced
justification for the rule [of narrow construction] is to the effect that it is
necessary to achieve the beneficial purposes of the law.”); Posner,
Statutory Interpretation—in the Classroom and in the Courtroom, 50 U
Chi L Rev 800, 807 (1983) (“But I know of no neutral, nonpolitical basis
on which a judge can decide whether the legislature should be forced by
some version of strict construction to legislate less . . . .”).
12
Detroit Young Men’s Society v Detroit, 3 Mich 172, 179 (1854). Earlier
cases touched on the issue but did not make such a clear interpretive
pronouncement. See Lefevre v Detroit, 2 Mich 586, 591 (1853) (noting,
among other things, that the Legislature’s inclusion of certain exempt
properties suggested the exclusion of others); People v Detroit & P R, 1
Mich 458, 460 (1850) (noting that because the company’s charter was
silent regarding taxation, there was no exemption).
2020] TOMRA V TREAS DEP’T 341

capacities—that legislation favoring one class or group

should be limited, if allowed at all.13 This rationale, in
the context of taxes, has continued to buttress the

13
See Green v Graves, 1 Doug 351, 366-367 (Mich, 1844) (discussing
“the doctrine of equal rights and equal privileges, so much cherished by
the people,” that militated against monopoly power or privilege); see
also Gillman, The Constitution Besieged: The Rise and Demise of
Lochner Era Police Powers Jurisprudence (Durham: Duke University
Press, 1993), p 7 (discussing the “Jacksonian ethos that emphasized
equal rights and the dangers of legislating special privileges for particu-
lar groups and classes” instead of equal laws for the general public);
Binney, Restrictions Upon Local and Special Legislation in State Con-
stitutions (Philadelphia: Kay & Brother, 1894), p 6 (discussing the “very
general feeling of hostility to all local and special legislation” benefiting
particular groups or areas and the legal restrictions that developed to
stem this legislation); Cooley, Constitutional Limitations (5th ed),
pp 486-487 (“Equality of rights, privileges, and capacities unquestion-
ably should be the aim of the law; and if special privileges are granted,
or special burdens or restrictions imposed in any case, it must be
presumed that the legislature designed to depart as little as possible
from this fundamental maxim of government. . . . Special privileges are
always obnoxious, and discriminations against persons or classes are
still more so; and, as a rule of construction, it is to be presumed they
were probably not contemplated or designed.”); Rosen, Class Legisla-
tion, Public Choice, and the Structural Constitution, 21 Harv J L & Pub
Pol’y 181, 182-183 (1997) (“Jacksonian judges and treatise writers
pointed to state due process, equal protection, and special legislation
clauses to argue that states were not free to pass ‘special’ laws, or ‘class
legislation,’ but had to legislate in the ‘public interest,’ or ‘for the
purpose of benefiting the polity as a whole.’ ”) (citation omitted);
Schlesinger, Jr., The Age of Jackson (Boston: Little, Brown & Co, 1945),
p 316 (“The [Jacksonian] prescription of free enterprise thus became
government action to destroy the ‘blighting influence of partial legisla-
tion, monopolies, congregated wealth, and interested combinations’ in
the interests of the ‘natural order of society.’ ”) (citation omitted); White,
Foreword to Leggett, Democratick Editorials: Essays in Jacksonian
Political Economy (Indianapolis: Liberty Fund, 1984), pp xvii-xviii (“The
equal rights principle meant . . . that the law may not discriminate
among citizens, benefiting some at the expense of others. Few govern-
ment programs could pass through this filter. Strict application of the
equal rights principle thus led [its proponents] naturally to favor
minimization of government powers. Every extension of the sphere of
342 505 MICH 333 [June

canon in our cases.14 The canon does not, then, shed

any light on whether the ordinary language of a
statute enacted by the Legislature provides a tax
exemption. Perhaps for this reason, our caselaw—
especially in recent opinions—has also stressed that
the canon cannot overcome the plain text, and in a few
cases, we have not relied on or mentioned it at all.15
government action beyond the Jeffersonian night-watchman du-
ties . . . created a privileged aristocratic class at the expense of the
productive laboring class.”).
14
See, e.g., Wexford Med Group v City of Cadillac, 474 Mich 192, 204;
713 NW2d 734 (2006) (“[B]ecause tax exemptions upset the desirable
balance achieved by equal taxation, they must be narrowly construed.”);
Retirement Homes of Detroit Annual Conference of United Methodist
Church, Inc v Sylvan Twp, 416 Mich 340, 348; 330 NW2d 682 (1982) (“A
property tax exemption is in derogation of the principle that all property
shall bear a proportionate share of the tax burden and, consequently, a
tax exemption will be strictly construed.”); In re Smith Estate, 343 Mich
291, 297; 72 NW2d 287 (1955) (“[O]ur point of departure in the
interpretation of any taxing act is the consideration that a preference in
or an exemption from taxation must be clearly defined and without
ambiguity. Taxation, like rain, falls on all alike. True, there are, in any
taxing act, certain exceptions, certain favored classes, who escape the
yoke. But one claiming the unique and favored position must establish
his right thereto beyond doubt or cavil.”); cf. East Saginaw Mfg Co v
East Saginaw, 19 Mich 259, 277-280 (1869) (finding no exemption and
noting the danger that various classes, such as railroads or manufac-
turers, could seek perpetual exemptions from taxation and that strict
construction was justified because a state should not lightly be taken to
have given away its power to tax); 3A Singer, Sutherland Statutes and
Statutory Construction (8th ed, April 2020 update), § 66:9 (“This rule of
strict construction derives from the same rationale supporting strict
construction of positive revenue laws, that the burdens of taxation
should be distributed equally and fairly among members of society.”).
15
See, e.g., Ally Fin Inc, 502 Mich at 491-492 (noting the canon but
observing that “we have also explained ‘that this requirement does not
permit a “strained construction” that is contrary to the Legislature’s
intent’ ”), quoting SBC Health Midwest, Inc v City of Kentwood, 500
Mich 65, 71; 894 NW2d 535 (2017), in turn quoting Mich United
Conservation Clubs v Lansing Twp, 423 Mich 661, 664-665; 378 NW2d
737 (1985); Gardner v Dep’t of Treasury, 498 Mich 1; 869 NW2d 199
2020] TOMRA V TREAS DEP’T 343

We take this opportunity to clarify that because the

canon requiring strict construction of tax exemptions
does not help reveal the semantic content of a statute,
it is a canon of last resort. That is, courts should
employ it only “when an act’s language, after analysis
and subjection to the ordinary rules of interpretation,
presents ambiguity.”16 In the present case, the canon is
inapplicable because, as we explain below, the statutes
are unambiguous: their ordinary meaning is discern-
(2015) (interpreting a tax exemption without mention of strict construc-
tion); Stone v Michigan, 467 Mich 288; 651 NW2d 64 (2002) (same);
Mich United Conservation Clubs, 423 Mich at 665 (“However, this rule
[of strict construction] does not mean that we should give a strained
construction which is adverse to the Legislature’s intent.”), citing City of
Ann Arbor v Univ Cellar, Inc, 401 Mich 279, 288-289; 258 NW2d 1
(1977); Webb Academy v Grand Rapids, 209 Mich 523, 536; 177 NW 290
(1920) (noting the canon but stating that it could not “be extended so far
as to defeat the legislative intent”) (quotation marks and citation
omitted); Detroit Home & Day Sch v Detroit, 76 Mich 521, 525; 43 NW
593 (1889) (“Where language is so plain as to convey a clear and
intelligible meaning, we have no right to go beyond it, and impose
another meaning. The language of the Legislature in exemption from
taxation is as much entitled to obedience as that imposing taxation.”);
Schaub v Seyler, 504 Mich 987, 991 (2019) (VIVIANO, J., concurring)
(noting that strict-construction rules represent “a method of interpreta-
tion that has largely fallen out of favor”).
16
Singer, § 66:9; see also Madugula v Taub, 496 Mich 685, 696; 853
NW2d 75 (2014) (“When a statute’s language is unambiguous, ‘the
Legislature must have intended the meaning clearly expressed, and the
statute must be enforced as written. No further judicial construction is
required or permitted.’ ”) (citation omitted).
344 505 MICH 333 [June

ible by reading the text in its immediate context and

with the aid of appropriate canons of interpretation.17

B. THE EXEMPTION

The GSTA imposes taxes on the sale of goods, and

the UTA imposes taxes on goods purchased outside the
state for use in the state.18 To avoid the double taxation
of a product that would result from exacting both use
and sales taxes, the Legislature exempted certain
property used or consumed in industrial processing
from the taxes in each act.19 The exemption covers,
among other things, “tangible personal property [that]
is intended for ultimate use in and is used in industrial
processing by an industrial processor” or “is used by [a]
person [whether or not an industrial processor] to
perform an industrial processing activity for or on
behalf of an industrial processor.”20
The GSTA’s industrial-processing exemption—
which is, for present purposes, identical to the UTA’s

17
See Mayor of Lansing v Pub Serv Comm, 470 Mich 154, 164-166;
680 NW2d 840 (2004) (noting that ambiguity can occur if a statutory
provision “ ‘irreconcilably conflict[s]’ with another provision” but that “a
finding of ambiguity is to be reached only after ‘all other conventional
means of [ ] interpretation’ have been applied and found wanting”)
(citations omitted; alterations in original).
18
MCL 205.52(1) (providing, in pertinent part, that “there is levied
upon and there shall be collected from all persons engaged in the
business of making sales at retail, by which ownership of tangible
personal property is transferred for consideration, an annual tax for the
privilege of engaging in that business”); MCL 205.93(1) (providing, in
pertinent part, a tax “for the privilege of using, storing, or consuming
tangible personal property” that applies “to a person who acquires
tangible personal property or services that are subject to the tax levied
under this act . . . who subsequently converts the tangible personal
property or service to a taxable use”).
19
MCL 205.54t; MCL 205.94o.
20
MCL 205.54t(1)(b) and (c); MCL 205.94o(1)(b) and (c).
2020] TOMRA V TREAS DEP’T 345

exemption and will be quoted in the text going forward

—provides both a general definition of industrial pro-
cessing, MCL 205.54t(7)(a), and also a list of specific
activities that constitute industrial-processing activi-
ties, MCL 205.54t(3).21 The general definition in Sub-
section (7)(a) states:
“Industrial processing” means the activity of convert-
ing or conditioning tangible personal property by chang-
ing the form, composition, quality, combination, or char-
acter of the property for ultimate sale at retail or for use in
the manufacturing of a product to be ultimately sold at
retail. Industrial processing begins when tangible per-
sonal property begins movement from raw materials stor-
age to begin industrial processing and ends when finished
goods first come to rest in finished goods inventory stor-
age.[22]

The definition’s second sentence establishes a tem-

poral period during which industrial processing must
occur, spanning from when the property begins move-
ment from raw-materials storage into processing until
the finished goods enter inventory storage. Subsection
(3) states:
Industrial processing includes the following activities:

21
The parallel provisions in the UTA are located at MCL 205.94o(7)(a)
and MCL 205.94o(3), respectively.
22
MCL 205.54t(7)(a). The UTA states:
“Industrial processing” means the activity of converting or
conditioning tangible personal property by changing the form,
composition, quality, combination, or character of the property for
ultimate sale at retail or for use in the manufacturing of a product
to be ultimately sold at retail or affixed to and made a structural
part of real estate located in another state. Industrial processing
begins when tangible personal property begins movement from
raw materials storage to begin industrial processing and ends
when finished goods first come to rest in finished goods inventory
storage. [MCL 205.94o(7)(a).]
346 505 MICH 333 [June

(a) Production or assembly.

(b) Research or experimental activities.
(c) Engineering related to industrial processing.
(d) Inspection, quality control, or testing to determine
whether particular units of materials or products or
processes conform to specified parameters at any time
before materials or products first come to rest in finished
goods inventory storage.
(e) Planning, scheduling, supervision, or control of
production or other exempt activities.
(f) Design, construction, or maintenance of production
or other exempt machinery, equipment, and tooling.
(g) Remanufacturing.
(h) Processing of production scrap and waste up to the
point it is stored for removal from the plant of origin.
(i) Recycling of used materials for ultimate sale at retail
or reuse.
(j) Production material handling.
(k) Storage of in-process materials.[23]

Machines and other equipment “used in an industrial

processing activity and in their repair and mainte-
nance” are eligible for the exemption, as are other
types of property.24
The question in this case is whether TOMRA’s
container-recycling machines and repair parts qualify
for the exemption under Subsection (3) even if they
would not otherwise meet the temporal limitation in
the general definition under Subsection (7)(a). The
question arises because, as the Court of Appeals dis-
sent noted, TOMRA’s machines here “simply facilitate
the collection of raw materials” outside the time frame

23
MCL 205.54t(3); see also MCL 205.94o(3).
24
MCL 205.54t(4)(b); see also MCL 205.94o(4)(b).
2020] TOMRA V TREAS DEP’T 347

described in Subsection (7)(a), i.e., the period begin-

ning when the materials begin to move from raw-
materials storage and ending when the finished goods
are first stored as inventory.25 Thus, if Subsection (7)(a)
lays down a mandatory requirement, then TOMRA
would not be entitled to an exemption even if it was
engaged in one of the industrial-processing activities
expressly set forth in Subsection (3).
We have never before addressed this issue, but
general guidance can be found in Detroit Edison Co v
Dep’t of Treasury.26 In deciding whether the exemption
applied to equipment used in transmitting electricity,
we suggested that a taxpayer could claim an exemption
either by satisfying the general definition of industrial
processing in Subsection (7)(a) or by showing that it
was engaged in one or more of the enumerated activi-
ties listed in Subsection (3). Most directly, we stated
that “the statute also provides that certain specific
activities that do not satisfy the general MCL
205.94o(7)(a) definition nonetheless constitute ‘indus-
trial processing’ activity for purposes of the statute,”
such as the activity described in MCL 205.94o(3)(h).27
In other words, we made it clear that Subsection (7)(a)
and Subsection (3) are discrete inquiries—Subsection
(7)(a) does not establish a threshold requirement for an
exemption as long as Subsection (3) applies.28

25
TOMRA, 325 Mich App at 305 (K. F. KELLY, J., dissenting).
26
Detroit Edison Co v Dep’t of Treasury, 498 Mich 28; 869 NW2d 810
(2015).
27
Id. at 49 n 13.
28
See id. at 39 (“If ‘industrial processing’ activity is not occurring
under either MCL 205.94o(7)(a) or MCL 205.94o(3), . . . the analysis is
complete and the taxpayer is entitled to no exemption.”); id. at 48 & n 12
(noting that industrial processing “occurs throughout the electric sys-
tem under MCL 205.94o(7)(a)” but also recognizing “that ‘industrial
348 505 MICH 333 [June

We agree with the Court of Claims that the tasks

that TOMRA’s machines perform occur before the
industrial process begins under the general definition
in Subsection (7)(a). Therefore, we need to address the
department’s argument that TOMRA is precluded
from claiming an exemption under Subsection (3)
based on the temporal limitation of Subsection (7)(a).
If we were to hold, as the department urges, that
the temporal limitation in Subsection (7)(a) applies to
industrial-processing exemptions sought under Sub-
section (3), we would create a conflict between those
two provisions. That is because some of the activities
listed in Subsection (3) fall outside the period speci-
fied in the general definition, i.e., from the movement
of raw-materials storage until finished goods are
placed in inventory storage. For example, it is difficult
to see how the activity of “[p]lanning” or “scheduling”
of production in Subsection (3) could ever occur within
the time frame of Subsection (7)(a).29 Perhaps an even
better example is the “[d]esign, construction, or main-
tenance of production or other exempt machinery,
equipment, and tooling,” which must necessarily pre-
cede the period of industrial processing defined in
processing’ may occur under other circumstances as well, e.g.,
MCL 205.94o(3)(d)”) (citation omitted).
Our additional statement that “the analysis begins” with the general
definition in Subsection (7)(a) does not lead us to a different conclusion.
Id. at 39. The statutes in this case are anomalous because they contain
a general definition in one subsection that, standing alone, does not
encompass all the things that another subsection specifically identifies
(and therefore includes) as “industrial processing” activities. Even so,
we still think it makes sense to start with the general definitional
section when applying the statutes (if only because it conforms to our
usual practice).
29
MCL 205.54t(3)(e); see also MCL 205.94o(3)(e).
2020] TOMRA V TREAS DEP’T 349

Subsection (7)(a).30 Or take “[r]esearch or experimental

activities,” which likely must antedate the period by an
even greater margin.31 What is more, Subsection (3)(d)
establishes its own time frame for certain forms of
“[i]nspection, quality control, or testing,” which must
take place “at any time before materials or products
first come to rest in finished goods inventory storage.”32
This would be yet another provision rendered either
unnecessary or meaningless if the temporal limitation
in Subsection (7)(a) applied to Subsection (3). In short,
accepting the department’s interpretation would lay
waste to large swaths of Subsection (3).
When a potential conflict like this surfaces within a
statute, “it is our duty to, if reasonably possible,
construe them both so as to give meaning to each; that
is, to harmonize them.”33 Indeed, we must always read
the text as a whole, “in view of its structure and of the
physical and logical relation of its many parts.”34 This
is because “[c]ontext is a primary determinant of
meaning,” and for an interpretation that seeks the
ordinary meaning of the statute, it is the narrower
context drawn from neighboring provisions within a
statute that is most appropriate to consider.35 Many

30
MCL 205.54t(3)(f); see also MCL 205.94o(3)(f).
31
MCL 205.54t(3)(b); see also MCL 205.94o(3)(b).
32
MCL 205.54t(3)(d); see also MCL 205.94o(3)(d).
33
Nowell v Titan Ins Co, 466 Mich 478, 483; 648 NW2d 157 (2002).
34
Reading Law, p 167.
35
Id.; see also id. at 33 (“This critical word context embraces not just
textual purpose but also (1) a word’s historical associations acquired
from recurrent patterns of past usage, and (2) a word’s immediate
syntactic setting . . . .”); Ordinary Meaning, p 147 (“One way to capture
generalizable meanings . . . is to conceive of ordinary meaning as se-
mantic meaning that is determined based on facts from the narrow
context.”).
350 505 MICH 333 [June

principles follow from the emphasis on context, includ-

ing the interpretive canon that words should not, if
possible, be rendered surplusage.36 Here, extending the
temporal limitation in Subsection (7)(a) to all requests
for exemptions would, as explained above, leave por-
tions of Subsection (3) without meaning or function
within the statute.
There is no reason to wreak such havoc upon the
statutes here. Another contextual canon harmonizes
the provisions and illuminates their ordinary meaning:
“ ‘[W]here a statute contains a general provision and a
specific provision, the specific provision controls.’ ”37
This principle is tailor-made for cases like this one, in
which statutory provisions would otherwise conflict.38
The conflict is dissipated by interpreting “the specific
provision . . . as an exception to the general one.”39

36
Reading Law, p 167; see also People v Seewald, 499 Mich 111, 123;
879 NW2d 237 (2016) (“When possible, we strive to avoid constructions
that would render any part of the Legislature’s work nugatory.”).
37
Jones v Enertel, Inc, 467 Mich 266, 270; 650 NW2d 334 (2002),
quoting Gebhardt v O’Rourke, 444 Mich 535, 542-543; 510 NW2d 900
(1994) (alteration in original).
38
RadLAX Gateway Hotel, LLC v Amalgamated Bank, 566 US 639,
645; 132 S Ct 2065; 182 L Ed 2d 967 (2012) (“The general/specific canon
is perhaps most frequently applied to statutes in which a general
permission or prohibition is contradicted by a specific prohibition or
permission.”); Reading Law, p 183 (“If there is a conflict between a
general provision and a specific provision, the specific provision pre-
vails . . . .”). As we stated in Detroit Edison Co, 498 Mich at 44, “the rule
only applies when there is some statutory tension or conflict between
two possible treatments of a subject . . . .” In that case, the canon was
inapplicable because we found no conflict between the general definition
in Subsection (7)(a) and various express exclusions from that definition
carved out in Subsection (6)(b). Id. at 45.
39
RadLAX Gateway Hotel, LLC, 566 US at 645; see also Reading Law,
p 183 (“Under this canon, the specific provision is treated as an
exception to the general rule.”).
2020] TOMRA V TREAS DEP’T 351

In this case, interpreting Subsection (3) as the more

specific provision resolves the conflict and accords the
statutes their most natural and ordinary meanings.
Subsection (3) lists specific activities that constitute
industrial processing, whereas the second sentence of
Subsection (7)(a) provides a temporal limitation on the
general types of activities described in the first sentence
of that subsection.40 Thus, Subsection (3) is the specific
provision with regard to the activities it enumerates.41
As to those activities, then, Subsection (3) controls and
the time frame in Subsection (7)(a) is inapplicable.
This interpretation reflects a holistic reading of the
statutory text and gives each provision its appropriate
meaning and function. We therefore conclude that the
temporal limitation in Subsection (7)(a) does not apply
to the industrial-processing activities in Subsection (3).

IV. CONCLUSION

For the reasons set forth above, we hold that the

temporal limitation in Subsection (7)(a) does not apply
to the activities listed in Subsection (3). In reaching
this conclusion, we further conclude that the rule of
strict construction of tax exemptions is inapplicable
because the statutes here are unambiguous. On these
bases, we affirm the Court of Appeals decision below
and remand the case to the Court of Claims for further
proceedings that are consistent with this opinion.

MCCORMACK, C.J., and MARKMAN, ZAHRA, BERNSTEIN,

CLEMENT, and CAVANAGH, JJ., concurred with VIVIANO, J.

40
We do not address whether or how the first sentence of Subsection
(7)(a) applies to the exemptions in Subsection (3) because that issue is
not before the Court.
41
See Miller v Allstate Ins Co, 481 Mich 601, 613; 751 NW2d 463
(2008) (“In order to determine which provision is truly more specific and,
hence, controlling, we consider which provision applies to the more
narrow realm of circumstances, and which to the more broad realm.”).
352 505 MICH 352 [June

PEOPLE v JEMISON

Docket No. 157812. Argued March 5, 2020 (Calendar No. 3). Decided
June 22, 2020.
Arthur Jemison was convicted following a jury trial in the Wayne
Circuit Court of first-degree criminal sexual conduct,
MCL 750.520b, for a sexual assault that occurred in 1996. The
victim underwent a forensic examination in 1996, and evidence
was collected for a rape kit at that time. But the rape kit was not
analyzed until 2015. In 2015, samples from the kit were sent to a
laboratory in Utah for testing and analysis. A forensic analyst at
the lab, Derek Cutler, concluded that a vaginal swab from the kit
contained the DNA of at least one male donor. The Utah lab
forwarded its report to the Michigan State Police (MSP) Forensic
Science Division, where the sample was compared to DNA stored
in a database. The MSP determined that there was an association
between Jemison’s DNA and the DNA of the male donor identified
by the Utah lab as a contributor to the vaginal swab. Before trial,
the prosecution moved to allow Cutler to testify via two-way,
interactive video. Jemison objected, but the court, Antonio
Viviano, J., granted the motion. At trial, Jemison renewed his
objection before a new judge, but the trial court, Dalton A.
Roberson, J., allowed the video testimony over the objection.
Jemison appealed his conviction, arguing, in part, that his right
of confrontation under the federal and state Constitutions was
denied when the trial court allowed Cutler to testify via two-way,
interactive video. In an unpublished per curiam opinion issued on
April 12, 2018 (Docket No. 334024), the Court of Appeals, SAWYER,
P.J., and HOEKSTRA, J. (MURRAY, J., concurring), concluded that
Jemison’s right of confrontation was adequately protected when
Cutler testified via video because the video testimony allowed
Jemison and the jury to observe the witness’s responses and
reactions in real time and Jemison was able to cross-examine the
witness. Although the Court of Appeals held that the trial court
abused its discretion when it allowed the video testimony over
Jemison’s objection in violation of MCR 6.006(C), it concluded
that the error was harmless. The Supreme Court granted
Jemison’s application for leave to appeal. 503 Mich 936 (2019).
2020] PEOPLE V JEMISON 353

In a unanimous opinion by Chief Justice MCCORMACK, the

Supreme Court held:
The Sixth Amendment of the United States Constitution and
Article 1, § 20 of the Michigan Constitution guarantee criminal
defendants the right to confront the witnesses against them. In
Ohio v Roberts, 448 US 56 (1980), the United States Supreme
Court held that the right of confrontation was satisfied even if a
hearsay declarant was not present at trial for cross-examination
as long as the statement bore adequate “indicia of reliability.” The
Court later held in Maryland v Craig, 497 US 836 (1990), that a
defendant’s right to confront a child witness may be satisfied
absent a face-to-face confrontation when necessary to advance an
important public-policy consideration and when the evidence is
sufficiently reliable. However, in Crawford v Washington, 541 US
36 (2004), the Court overruled Roberts and rejected its open-
ended balancing approach. The Court held that the right of
confrontation requires face-to-face confrontation and is absolute
for all testimonial evidence unless a witness is unavailable and
the defendant had a prior opportunity for cross-examination. The
United States Supreme Court did not overrule Craig with its
decision in Crawford, but it cast its vitality into doubt by turning
away from the reliability-balancing approach. The Court of Ap-
peals relied on Craig when it concluded that the forensic analyst’s
expert testimony should not raise the same confrontation-right
concerns as the testimony of a fact witness. The United States
Supreme Court disagrees, and has held that expert witnesses
called by the prosecution are witnesses against the defendant and
should be treated as such for purposes of protecting a defendant’s
right of confrontation. The Court of Appeals also determined that
cost-savings was a sufficient reason to extend Craig, but expense
is not a sufficient justification to avoid face-to-face confrontation.
Such a rule would potentially allow the prosecution to deprive a
defendant of confrontation rights by, for instance, using out-of-
state analysts to save money and then relying on cost-savings as
a justification for not providing face-to-face testimony. Craig
should be applied only to the specific facts it decided: a child
victim may testify against the accused by means of one-way video
testimony (or similar method) when the trial court has deter-
mined, consistently with statutory authorization, that such mea-
sures are necessary because the child requires special protection.
Craig was not controlling here because the witness was neither a
victim nor a child. Instead, Crawford was controlling, and the
trial court denied Jemison’s right of confrontation when it al-
lowed the video testimony over his objection because the forensic
354 505 MICH 352 [June

analyst was available to testify and Jemison had not had a prior
opportunity to cross-examine him.
Judgment of the Court of Appeals reversed; case remanded to
the Court of Appeals for further proceedings.
Justice VIVIANO did not participate due to a familial relation-
ship with a circuit court judge involved in this case.

1. CONSTITUTIONAL LAW — SIXTH AMENDMENT — RIGHT OF CONFRONTATION —

VIDEO TESTIMONY BY AN ADULT WITNESS.
The Sixth Amendment of the United States Constitution and
Article 1, § 20 of the Michigan Constitution guarantee criminal
defendants the right to confront the witnesses against them; the
right of confrontation requires face-to-face confrontation and is
absolute for all testimonial evidence unless a witness is unavail-
able and the defendant had a prior opportunity for cross-
examination; allowing an adult witness called by the prosecution
to testify via two-way video over the defendant’s objection denies
the defendant his or her right of confrontation when the witness
is available and the defendant did not have a prior opportunity to
confront the witness.

2. CONSTITUTIONAL LAW — SIXTH AMENDMENT — RIGHT OF CONFRONTATION —

VIDEO TESTIMONY BY A CHILD WITNESS.
The United States Supreme Court’s holding in Maryland v Craig,
497 US 836 (1990)—that a defendant’s right to confront a child
witness may be satisfied absent a face-to-face confrontation when
necessary to advance an important public-policy consideration
and when the evidence is sufficiently reliable—is limited to its
facts; that is, it only permits a child victim to testify against the
accused by means of one-way video testimony (or similar method)
when the trial court has determined, consistently with statutory
authorization, that such measures are necessary because the
child requires special protection (US Const, Am VI; Const 1963,
art 1, § 20).

Kym L. Worthy, Prosecuting Attorney, Jason W.

Williams, Chief of Research, Training, and Appeals,
and Amy M. Somers, Assistant Prosecuting Attorney,
for the people.

State Appellate Defender (by Kristin E. LaVoy) for

defendant.
2020] PEOPLE V JEMISON 355

Amici Curiae:

Richard D. Friedman in support of defendant.

Michigan Innocence Clinic (by David A. Moran,

Imran J. Syed, and Megan Richardson) for Julie
Baumer.

MCCORMACK, C.J. The Sixth Amendment of the

United States Constitution and Article 1, § 20 of the
Michigan Constitution guarantee criminal defendants
the right to confront the witnesses against them. In
this case, we consider whether a forensic analyst’s
two-way, interactive video testimony violated the de-
fendant’s Confrontation Clause rights.
The Court of Appeals held that the video testimony
satisfied the constitutional requirements of face-to-
face confrontation. But the Court relied only on prec-
edent that predated the United States Supreme
Court’s decision in Crawford v Washington, 541 US 36;
124 S Ct 1354; 158 L Ed 2d 177 (2004), which trans-
formed the Court’s approach to confrontation rights.
See People v Pesquera, 244 Mich App 305, 309; 625
NW2d 407 (2001), citing Maryland v Craig, 497 US
836, 845-846, 851; 110 S Ct 3157; 111 L Ed 2d 666
(1990) (holding that the Confrontation Clause did not
categorically prohibit child witnesses from testifying
outside the defendant’s physical presence by one-way
closed circuit television where reliability was other-
wise supported).
For almost 25 years before Crawford, reliability was
the touchstone of the Court’s Confrontation Clause
doctrine. In Ohio v Roberts, 448 US 56, 66; 100 S Ct
2531; 65 L Ed 2d 597 (1980), the Court held that the
Confrontation Clause is satisfied even if a hearsay
declarant is not present for cross-examination at trial
356 505 MICH 352 [June

as long as the statement bears adequate “indicia of

reliability.” Citing Roberts, the Court held in Craig
that a defendant’s right to confront a child witness may
be satisfied absent a face-to-face encounter when nec-
essary to advance an important public policy and when
the testimony is reliable enough. Craig, 497 US at 850,
citing Roberts, 448 US at 64. But in Crawford, the
Court overruled Roberts and shifted from a reliability
focus to a bright-line rule requiring a face-to-face
encounter for testimonial evidence. Crawford, 541 US
at 61-63, 68-69.
Crawford did not specifically overrule Craig, but it
took out its legs. To reconcile Craig and Crawford, we
read Craig’s holding according to its narrow facts.1
Crawford requires face-to-face cross-examination
for testimonial evidence unless a witness is unavail-
able and the defendant had a prior opportunity for
cross-examination. Crawford, 541 US at 68. Here,
admitting the prosecution witness’s video testimony
over the defendant’s objection violated the defendant’s
state and federal constitutional rights to confrontation.
We reverse the judgment of the Court of Appeals and
remand the case to that Court for further proceedings
consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

In September 1996, the victim was raped and

robbed while waiting in a parked car for an acquain-
tance. Later that day, she filed a police report and went
to a hospital for a forensic examination and the collec-

1
In Craig, the Court held that in child abuse cases, as long as a trial
court made a case-specific showing of necessity that a child witness
needs special protection, as required by a Maryland statute, the Con-
frontation Clause did not prohibit the court from allowing the child
witness to testify using one-way video. Craig, 497 US at 856, 860.
2020] PEOPLE V JEMISON 357

tion of evidence known as a “rape kit.” She did not

know her assailant’s identity.
The rape kit was not analyzed until 2015.2 The
samples were sent to Sorensen Laboratory in Utah for
serological processing and further DNA testing. So-
rensen analyst Derek Cutler concluded that the vagi-
nal swab from the rape kit contained a mixture of DNA
profiles from at least two contributors, at least one of
which was male and suitable for comparison. Sorenson
forwarded the report to the Michigan State Police
(MSP) Forensic Science Division, which analyzed and
compared the sample to DNA data stored in the Com-
bined DNA Index System (CODIS) database. The MSP
identified an association between the defendant’s DNA
and the male donor identified by the Sorensen report.
The defendant was charged with two counts of first-
degree criminal sexual conduct, MCL 750.520b.
Over the defendant’s objection, the circuit court
granted the prosecution’s pretrial motion to allow
Cutler to testify by video. Before a different judge who
presided over the trial, the defendant renewed his
objection to Cutler’s video testimony. But the trial
court allowed it.
Cutler testified that it is “normal within the scien-
tific community to have multiple people do work on
these [rape] kits” and acknowledged that he “did not
actually see the rape kit.” Instead, he “[went] off the
notes that [we]re done by other serologists and techni-
cians who are competent in their testing.”3 He ana-

2
The 1996 rape kit remained in the Detroit Police Department’s
property section until it was discovered in 2014 and tested in 2015.
3
Upon learning that Cutler never saw the rape kit but had inter-
preted other analysts’ notes, the defendant again objected to this specific
part of Cutler’s testimony, arguing that it was inadmissible hearsay.
(The defendant apparently did not also object to his inability to confront
358 505 MICH 352 [June

lyzed those other serologists’ notes and concluded that

there were at least two contributors to the DNA on the
vaginal swab—an unknown male donor and a second
donor whose DNA was present at such a low level that
it was not suitable for comparison. Catherine Maggert,
the MSP analyst who used Cutler’s report for her
analysis, testified that when she compared that re-
port’s unknown male donor to the CODIS database,
there was an association linking the defendant to the
unknown male donor.
The jury convicted the defendant of one count of
first-degree criminal sexual conduct and acquitted him
of the other count. He was sentenced to serve 22 to 40
years in prison. He appealed, in part arguing that he
was denied his right of confrontation when the trial
court allowed Cutler’s video testimony, rather than
requiring his presence in the courtroom. The Court of
Appeals affirmed. People v Jemison, unpublished per
curiam opinion of the Court of Appeals, issued April 12,
2018 (Docket No. 334024). The panel relied on Pesquera,
an opinion predating Crawford, in which the Court of
Appeals held that a defendant’s confrontation rights
were adequately protected when a trial court allowed
videotaped deposition testimony from child witnesses
accusing the defendant of criminal sexual conduct.
Pesquera, 244 Mich App at 309. Pesquera relied on
Craig for this holding. Citing Pesquera, the panel stated
that the Confrontation Clause requires the following:
(1) a face-to-face-meeting of the defendant and the
witnesses against him at trial; (2) the witnesses should be
competent to testify and their testimony is to be given
under oath or affirmation, thereby impressing upon them
the seriousness of the matter; (3) the witnesses are subject

the witnesses who had conducted the analysis.) The trial court overruled
the objection, and the defendant did not appeal that ruling.
2020] PEOPLE V JEMISON 359

to cross-examination; and (4) the trier of fact is afforded

the opportunity to observe the witnesses’ demeanor.
[Jemison, unpub op at 5, citing Pesquera, 244 Mich App at
309, which in turn cited Craig, 497 US at 846, 851.]

Working within this analytic framework, the panel

noted that although the defendant “was not able to
confront the witness in the traditional sense” when the
expert testified using two-way, interactive video, the
defendant was able to “observe the expert’s responses
and reactions in real time and [the defendant] took
advantage of the opportunity to do so through cross-
examination.” Jemison, unpub op at 6. The court
further noted that “[t]he jury was able to observe the
expert as he responded.” Id. The panel concluded that
“[b]ecause the testimony met three of the Confronta-
tion Clause criteria, and the trial court appropriately
dispensed with the face-to-face requirement, defen-
dant’s right to confrontation was not violated.” Id.
The panel also held that the trial court abused its
discretion by allowing the witness’s two-way, interac-
tive video testimony over the defendant’s objection
because MCR 6.006(C) requires the parties to consent
to the use of videoconferencing technology for trial
testimony, but it found that error harmless. Id. at 5, 7.
The defendant filed an application for leave to ap-
peal in this Court. We granted it and asked the parties
to address “whether permitting an expert witness to
testify by two-way interactive video, over the defen-
dant’s objection, denied the defendant his constitu-
tional right to confront witnesses and, if so, whether
this error was harmless.” People v Jemison, 503 Mich
936, 936-937 (2019).4

4
The prosecution argues that the defendant waived appellate review
of this issue by failing to object in writing when it notified the defendant
that it intended to admit Cutler’s written report into evidence under
MCR 6.202. In other words, the prosecution argues that a defendant’s
360 505 MICH 352 [June

II. STANDARD OF REVIEW

Whether a defendant was denied his right to con-

front a witness is a constitutional question that we
review de novo. People v Bruner, 501 Mich 220, 226;
912 NW2d 514 (2018). When we review a question de
novo, we review the legal issue independently without
deference to the lower court. Id.

III. ANALYSIS

The Sixth Amendment of the United States Consti-

tution provides, in part, that “[i]n all criminal prosecu-
tions, the accused shall enjoy the right . . . to be con-
fronted with the witnesses against him . . . .” See also
Const 1963, art 1, § 20. Before Crawford, the United
States Supreme Court’s Confrontation Clause juris-
prudence was built around the reliability of the chal-
lenged evidence. In Roberts, the Court held that the
Confrontation Clause was not a barrier for admission if
the challenged testimony bore adequate “indicia of
reliability.” Roberts, 448 US at 66. Crawford overruled
Roberts and transformed the Court’s approach to the
Confrontation Clause from a case-by-case reliability-
balancing test to a categorical rule for protected evi-
dence.
Craig was decided before Crawford and therefore
under the Roberts reliability framework. In Craig, the
Court held that a defendant’s right to confront a child
witness may be satisfied by one-way video testimony
instead of a physical, face-to-face confrontation, if the
failure to comply with a court rule which governs the admissibility of an
expert’s report waives his constitutional right to confront the witness
who authored the report. Merits aside, because the prosecution did not
raise this argument before the Court of Appeals, we decline to address
it. See People v Walker, 504 Mich 267, 276 n 3; 934 NW2d 727 (2019),
citing People v McGraw, 484 Mich 120, 131 n 36; 771 NW2d 655 (2009).
2020] PEOPLE V JEMISON 361

testimony is reliable. Craig, 497 US at 850, citing

Roberts, 448 US at 64. The Court identified four
considerations that courts should weigh to determine
reliability—physical presence, whether the testimony
was taken under oath, the defendant’s ability to cross-
examine, and whether the jury could observe the
witness’s demeanor. See Craig, 497 US at 846. And
having weighed those factors and determined that the
testimony was reliable, the Court held that because
the evidence was reliable, “protect[ing] a child witness
from trauma that would be caused by testifying in the
physical presence of the defendant, at least where such
trauma would impair the child’s ability to communi-
cate,” justified permitting the witness’s one-way video
testimony. Id. at 857.
Justice Scalia dissented. He rejected the majority’s
reliability-balancing test “because the Confrontation
Clause does not guarantee reliable evidence; it guar-
antees specific trial procedures that were thought to
assure reliable evidence, undeniably among which was
‘face-to-face’ confrontation.” Id. at 862 (Scalia, J., dis-
senting). And he criticized the Court’s balancing test as
inconsistent with the constitutional text. Id. at 870
(“The Court today has applied ‘interest-balancing’
analysis where the text of the Constitution simply does
not permit it.”).
Fourteen years passed between Craig and
Crawford, and things changed. In Crawford, Justice
Scalia wrote for the majority and his dissent from Craig
became the Court’s view, transforming its approach to
the Confrontation Clause. Concluding that Roberts had
“replac[ed] categorical constitutional guarantees with
open-ended balancing tests,” Crawford, 541 US at 67-
68, the Court shifted gears; balancing no longer had a
role. Instead, the defendant’s confrontation right is
362 505 MICH 352 [June

absolute for all “testimonial” evidence unless a witness

is unavailable and the defendant had a prior opportu-
nity to cross-examine the witness. Id. at 68.
The Court emphasized the importance of face-to-face
testimony to the confrontation right, citing historical
examples that illustrated how face-to-face testimony
was critical to its enforcement. Id. at 43-45 (describing,
for example, how a trial court refused to call Sir Walter
Raleigh’s accuser to testify, over Raleigh’s pleading,
“Call my accuser before my face,” which led to both
Raleigh’s death sentence and then to English law devel-
oping the confrontation right as an important limit on
government abuses against criminal defendants) (cita-
tion omitted). The Court explained that a reliability-
balancing test would not have “provid[ed] any meaning-
ful protection” in these cases. Id. at 68. And so the Court
restored face-to-face testimony as a fundamental ele-
ment of the confrontation right. Id. at 57, quoting
Mattox v United States, 156 US 237, 244; 15 S Ct 337; 39
L Ed 409 (1895); see also California v Green, 399 US
149, 157; 90 S Ct 1930; 26 L Ed 2d 489 (1970) (explain-
ing that “it is this literal right to ‘confront’ the witness at
the time of trial that forms the core of the values
furthered by the Confrontation Clause”).5

5
While the Court’s early confrontation jurisprudence included both
the right to cross-examine and the right to have the witness brought to
face the defendant, face-to-face testimony has even deeper historical
roots: it was a critical feature of ancient Roman court systems, while the
cross-examination right was a seventeenth-century innovation. See
Herrmann & Speer, Facing the Accuser: Ancient and Medieval Precur-
sors of the Confrontation Clause, 34 Va J Int’l L 481 (1994); see also Coy
v Iowa, 487 US 1012, 1015-1016; 108 S Ct 2798; 101 L Ed 2d 857 (1988)
(“The Roman Governor Festus, discussing the proper treatment of his
prisoner, Paul, stated: ‘It is not the manner of the Romans to deliver any
man up to die before the accused has met his accusers face to face, and
has been given a chance to defend himself against the charges.’ Acts
25:16.”).
2020] PEOPLE V JEMISON 363

The reliability-balancing approach established by

the Court in Roberts was the basis for its rule in Craig
allowing public-policy considerations to override the
need for face-to-face testimony if the evidence is reli-
able enough. Craig, 497 US at 850. When Crawford
overruled Roberts and did away with reliability balanc-
ing, it put Craig’s reliability-focused rule into doubt.
We are not the first court to notice. See United States v
Carter, 907 F3d 1199, 1206 n 3 (CA 9, 2018) (recogniz-
ing that “[t]he vitality of Craig itself is questionable in
light of the Supreme Court’s later decision in
Crawford”); see also State v Thomas, ___ NM ___;
2016-NMSC-024; 376 P3d 184, 193 (2016) (noting that
“Crawford may call into question the prior holding in
Craig to the extent that Craig relied on the reliability
of the video testimony”). But the Supreme Court did
not specifically overrule Craig, and, of course, we leave
to that Court “the prerogative of overruling its own
decisions.” Rodriguez de Quijas v Shearson/American
Express, Inc, 490 US 477, 484; 109 S Ct 1917; 104 L Ed
2d 526 (1989).
The Court of Appeals extended Craig’s rule here for
two reasons. See Jemison, unpub op at 5-6. First,
because Cutler was an expert witness, the panel be-
lieved that his testimony should not raise the same
confrontation-right concerns as the testimony of a fact
witness. Id. Put differently, the Court of Appeals rea-

The Court previewed this aspect of its Crawford holding in 2002,

when it refused to pass along to Congress a proposed amendment to the
Federal Rules of Criminal Procedure that would have allowed a trial
witness to give testimony by video. In an accompanying statement,
Justice Scalia remarked that the proposed rule was “of dubious validity
under the Confrontation Clause.” Order Amending the Federal Rules of
Criminal Procedure, 535 US 1159, 1159 (2002) (statement of Scalia, J.).
As he put it, “Virtual confrontation might be sufficient to protect virtual
constitutional rights; I doubt whether it is sufficient to protect real
ones.” Id. at 1160.
364 505 MICH 352 [June

soned that Cutler’s expert testimony does not present

the same credibility concerns as nonexpert witnesses,
effectively placing him outside the confrontation right.
The United States Supreme Court, however, disagrees:
expert witnesses called by the prosecution are witnesses
against the defendant. Melendez-Diaz v Massachusetts,
557 US 305, 313-314; 129 S Ct 2527; 174 L Ed 2d 314
(2009) (“The text of the [Sixth] Amendment contem-
plates two classes of witnesses—those against the de-
fendant and those in his favor. The prosecution must
produce the former; the defendant may call the latter.
Contrary to respondent’s assertion, there is not a third
category of witnesses, helpful to the prosecution, but
somehow immune from confrontation.”).
Second, the Court of Appeals believed that cost
savings was a sufficient reason to extend Craig’s rule.
Jemison, unpub op at 5. We disagree; expense is not a
justification for a constitutional shortcut. This is espe-
cially true where the prosecution elects to use an
out-of-state laboratory for its analysis. Such a rule
would have perverse consequences: the prosecution
could deprive a criminal defendant of confrontation
rights by using out-of-state analysts to save money and
then cite cost savings as a justification for not provid-
ing face-to-face testimony.6

6
Courts applying Craig’s rule have almost universally concluded that
expense is not a sufficient reason for sacrificing face-to-face testimony.
See, e.g., State v Rogerson, 855 NW2d 495 (Iowa, 2014) (the state’s
justification of distance, cost, and inefficiency could not overcome a
defendant’s confrontation rights); Lipsitz v State, 135 Nev 131; 442 P 3d
138 (2019) (it was necessary to use two-way video technology for a
witness who was medically unavailable due to being admitted to an
out-of-state residential treatment center); Thomas, 376 P3d at 195 (a
defendant’s confrontation rights were violated when the trial court
permitted an out-of-state forensic analyst to testify using two-way video
in order to avoid inconveniencing the witness); Bush v State, 193 P3d
203, 214-216; 208 WY 108 (2008) (no confrontation violation when a
2020] PEOPLE V JEMISON 365

We will apply Craig only to the specific facts it

decided: a child victim may testify against the accused
by means of one-way video (or a similar Craig-type
process) when the trial court finds, consistently with
statutory authorization and through a case-specific
showing of necessity, that the child needs special
protection. Craig, 497 US at 860. The witness here was
neither the victim nor a child; Crawford thus provides
the applicable rule.
The Court of Appeals answered the wrong question
when it held that “the trial court appropriately dis-
pensed with the face-to-face requirement.” Jemison,
unpub op at 6.7 As Crawford makes clear, for testimo-
nial evidence, that requirement may be dispensed with
witness testified over two-way video when his physician warned against
traveling and he gave testimony after being sworn in by a district court
judge). Only one state’s highest court appears to have adopted a test
allowing for two-way video testimony in response to impossibility or
impracticality because of distance or expense. Missoula v Duane, 380
Mont 290; 2015 MT 232; 355 P3d 729, 731, 734 (2015). But the
defendant was charged with a misdemeanor and the out-of-state wit-
ness would have had to travel for three separate trials, which the
Montana Supreme Court found would have imposed a significant
burden on the witness and a significant expense on the city. Id.
Even if we were to apply Craig’s rule, our result would be the same:
mere convenience, efficiency, and cost-savings interests are not impor-
tant enough public-policy considerations to dispense with a defendant’s
constitutional right to face-to-face confrontation.
7
Perhaps because the defendant did not cite Crawford in his briefing
in the Court of Appeals, or perhaps because this Court has cited Craig
without the need to consider Crawford’s sea change to Confrontation
Clause jurisprudence, see People v Buie, 491 Mich 294, 304-305; 817
NW2d 33 (2012), the Court of Appeals did not address Crawford. It cited
only Buie, in which this Court quoted Craig. See Jemison, unpub op at
5, quoting Buie, 491 Mich at 304. While Buie was decided after
Crawford, it does not appear that Crawford was raised in that case
either; there was, in fact, little need for a Confrontation Clause analysis
in Buie given that we held that the defendant through his counsel had
waived his right to confrontation. Buie, 491 Mich at 317-318.
366 505 MICH 352 [June

only when the witness is unavailable and the defen-

dant had a prior chance to cross-examine the witness.
The parties do not dispute that Cutler’s evidence
was testimonial.8 And we agree—Cutler’s evidence
was, after all, testimony. See Crawford, 541 US at
51-52. The defendant had a right to face-to-face cross-
examination; Cutler was available, and the defendant
did not have a prior chance to cross-examine him. See
id. The defendant’s state and federal constitutional
rights to confrontation were violated by the admission
of Cutler’s two-way, interactive video testimony.9

IV. CONCLUSION

In allowing this witness’s two-way, interactive video

testimony over the defendant’s objection, the trial

But had there been no waiver, Crawford would have controlled.

Craig’s language that “the face-to-face confrontation requirement is not
absolute” and that the preference for face-to-face confrontations “must
occasionally give way to considerations of public policy and the necessities
of the case,” Craig, 497 US at 849-850, citing Mattox, 156 US at 243; see
also Jemison, unpub op at 5 (quotation marks and citations omitted),
envisions the possibility of open-ended exceptions to the confrontation
requirement that has since been rejected in Crawford. See Crawford, 541
US at 54 (“The text of the Sixth Amendment does not suggest any
open-ended exceptions from the confrontation requirement to be devel-
oped by the courts.”).
8
In a footnote in its supplemental brief, the prosecution suggests that
Cutler’s testimony could be considered to be nontestimonial because of
the plurality decision in Williams v Illinois, 567 US 50; 132 S Ct 2221; 183
L Ed 2d 89 (2012). This footnote notwithstanding, the prosecution has
consistently conceded that Cutler’s testimony is testimonial. But even if it
had not so conceded, we are not persuaded by the prosecution’s alterna-
tive argument presented in the footnote. Williams decided whether
out-of-court statements made solely to explain the assumptions used to
form an expert opinion were beyond the consideration of the Confronta-
tion Clause. Id. at 58 (opinion of Alito, J.). Cutler testified, just not
face-to-face.
9
We agree with the Court of Appeals that the trial court’s decision to
2020] PEOPLE V JEMISON 367

court violated the defendant’s Confrontation Clause

rights. We reverse the judgment of the Court of Ap-
peals and remand to that Court for further proceedings
consistent with this opinion, including determining
whether that violation was harmless beyond a reason-
able doubt. Delaware v Van Arsdell, 475 US 673, 684;
106 S Ct 1431; 89 L Ed 2d 674 (1986).

MARKMAN, ZAHRA, BERNSTEIN, CLEMENT, and

CAVANAGH, JJ., concurred with MCCORMACK, C.J.
VIVIANO, J., did not participate due to a familial
relationship with a circuit court judge involved in this
case.
allow the two-way, interactive video testimony also violated
MCR 6.006(C). This Court has never addressed whether a violation of
MCR 6.006(C) can be harmless, and if so, the appropriate standard to
apply to determine whether it is harmless. See, e.g., Buie, 491 Mich at
320 (finding no violation of MCR 6.006(C)). The Court of Appeals
appeared to treat the MCR 6.006(C) error as interchangeable with a
Confrontation Clause violation and reviewed it for whether it was
harmless beyond a reasonable doubt. We vacate its analysis on that
point. On remand, the Court of Appeals should also consider (1) whether
the violation of MCR 6.006(C) is susceptible to harmless-error review;
(2) if so, what standard applies in determining whether the error was
harmless; and (3) whether the error was harmless in this case.
368 505 MICH 368 [June

SKANSKA USA BUILDING INC v

MAP MECHANICAL CONTRACTORS, INC

Docket Nos. 159510 and 159511. Argued April 15, 2020 (Calendar No. 2).
Decided June 29, 2020.
Skanska USA Building Inc. filed an action in the Midland Circuit
Court against M.A.P. Mechanical Contractors, Inc. (MAP), Ameri-
sure Insurance Company (Amerisure), and Amerisure Mutual
Insurance Company, seeking coverage under an Amerisure policy
for the cost of repairs Skanska performed to correct faulty work
performed by MAP in the renovation of a medical center. Skanska,
acting as the construction manager, subcontracted the heating and
cooling portion of the renovation project to MAP. In connection with
the project, Amerisure issued a commercial general liability insur-
ance policy (the CGL policy) to MAP; Skanska and the medical
center were additional named insureds on the CGL policy. In 2009,
MAP performed the work on the medical center’s heating system;
two years later, Skanska determined that MAP had installed some
of the expansion joints backward, resulting in damage to concrete,
steel, and the heating system. Skanska repaired and replaced the
damaged property and sent a demand letter to MAP, asserting that
MAP was responsible for all repair costs. Skanska submitted a
claim to Amerisure for the costs, seeking coverage as an additional
insured under the CGL policy; Amerisure denied the claim. Skan-
ska filed this action, and Amerisure moved for summary disposi-
tion, asserting, in part, that MAP’s defective work was not a
covered “occurrence,” which was defined in the policy as “an
accident, including continuous or repeated exposure to substan-
tially the same general harmful conditions”; the term “accident”
was not defined in the policy. Applying the definition of “accident”
set forth in Hawkeye-Security Ins Co v Vector Constr Co, 185 Mich
App 369 (1990), the court, Michael J. Beale, J., denied Amerisure’s
motion. Amerisure later filed a renewed motion for summary
disposition, and Skanska moved for summary disposition on the
issue of Amerisure’s liability to Skanska. The court denied both
motions, reasoning that it was bound to follow Hawkeye because
the case had not been overruled. However, the court did not
determine whether an accident occurred and therefore did not
determine whether the defective workmanship resulted in an
2020] SKANSKA USA v MAP MECH CONTRACTORS 369

“occurrence.” Amerisure and Skanska separately appealed by

leave granted, and the Court of Appeals consolidated the appeals.
Relying on Hawkeye, the Court of Appeals, SAWYER, P.J., and
CAVANAGH and K. F. KELLY, JJ., reversed the trial court’s orders and
remanded the case for entry of summary disposition in favor of
Amerisure. The Court reasoned that although Skanska could seek
coverage for any damage its work did to a third party’s property, it
could not recover for damage to its own work. The Court concluded
that there was no “occurrence” under the CGL policy because the
only damage was to Skanska’s own work product, which did not
constitute an “accident.” Skanska USA Bldg, Inc v MAP Mech
Contractors, Inc, unpublished per curiam opinion of the Court of
Appeals, issued March 19, 2019 (Docket Nos. 340871 and 341589).
Skanska filed an application for leave to appeal in the Supreme
Court, and the Supreme Court granted the application. 504 Mich
980 (2019).
In a unanimous opinion by Chief Justice MCCORMACK, the
Supreme Court held:
Under the current standard language of CGL policies, an
“accident” may include unintentionally faulty subcontractor work
that damages an insured’s work product. Accordingly, Skanska
may be able to recover under the Amerisure policy the cost of
repairs Skanska incurred when it corrected faulty work per-
formed by MAP in the renovation of the medical center. The
holding in Hawkeye, which interpreted a 1973 CGL policy that
did not cover damage caused by a subcontractor’s faulty work-
manship, was limited to cases involving pre-1986 insurance
policies and was, therefore, not controlling in this case.
1. Under Allstate Ins Co v McCarn, 466 Mich 277 (2002), an
“accident” is an undefined contingency, a casualty, a happening by
chance, something out of the usual course of things, unusual,
fortuitous, not anticipated, and not naturally to be expected.
Faulty work by a contractor falls within the definition of “accident”;
that is, it may happen by chance, is outside the usual course of
things, and is neither anticipated nor naturally to be expected. To
hold otherwise would render nugatory CGL policy language that
precludes coverage for an insured’s own work product but contains
an exception for work performed by a subcontractor on the in-
sured’s behalf. In addition, the word “accident” plainly has a
broader meaning than “fortuity.” That is, while fortuity is one way
to show that an incident is an accident, it is not the only way.
Instead, an unanticipated or unforeseeable injury to a person or
property—even absent true fortuity—may be an accident that is a
covered occurrence; thus, an insured need not act unintentionally
370 505 MICH 368 [June

for the act to constitute an “accident.” That an insured may recover

under a CGL policy for faulty subcontractor work does not convert
the policy into a performance bond, which is different in that the
performance bond benefits the owner of the project by guarantee-
ing the completion of the project in the event the contractor
defaults. For those reasons, faulty subcontractor work that was
unintended by the insured may constitute an “accident” (and thus
an “occurrence”) under the CGL policy language at issue. That an
“accident” may include damage to an insured’s own work product is
supported by the context and history of CGL policies and is
reflective of significant changes in the insurance industry since the
1970s. Specifically, the 1973 CGL policy language developed by the
Insurance Services Office, which was interpreted in Hawkeye,
contained language that excluded many risks inherent in doing
business, causing many earlier courts to read a general business-
risk exception into the initial grant of coverage; the distinction
between damage to a third party’s property and an insured’s own
work product in relation to coverage is grounded in that policy
language related to the business-risk doctrine. In contrast, the
1986 policy language at issue in this case expanded the scope of
CGL coverage to include some of the previously excluded business
risks, including damage caused by a subcontractor’s faulty work-
manship, with no differentiation based on whose property is
damaged; thus, the 1986 reformation of CGL policy coverage
emphasizes a plain reading of “accident,” specifically, that faulty
subcontractor work may fall within a policy’s coverage.
2. In this case, the CGL policy did not limit the definition of
“occurrence” based on the owner of the damaged property; there-
fore, the Court of Appeals erred by concluding that the word
“accident” cannot include damage limited to the insured’s own
work product. While the CGL policy excluded coverage for damage
to an insured’s own work product arising out of that work, the
exclusion expressly did not apply if the damaged work or the work
out of which damage arose was performed on the insured’s behalf
by a subcontractor, a fact the Court of Appeals failed to recognize.
Because an “accident” may include unintentionally faulty subcon-
tractor work that damages an insured’s work product, Skanska
may be able to recover under the policy for the cost of repairs it
incurred to correct MAP’s faulty work. The Court of Appeals erred
by reversing the trial court and ordering the court to enter
summary disposition in favor of Amerisure. Hawkeye, which inter-
preted a 1973 CGL policy that did not cover damage caused by a
subcontractor’s faulty workmanship, was not persuasive, and its
holding was limited to cases involving pre-1986 insurance policies.
2020] SKANSKA USA v MAP MECH CONTRACTORS 371

Court of Appeals judgment reversed and case remanded to the

Court of Appeals for consideration of any remaining issues.

CONSTRUCTION LAW — COMMERCIAL GENERAL LIABILITY INSURANCE POLICIES —

WORDS AND PHRASES — “ACCIDENT.”
An “accident” is an undefined contingency, a casualty, a happening
by chance, something out of the usual course of things, unusual,
fortuitous, not anticipated, and not naturally to be expected;
faulty subcontractor work that was unintended by the insured
may constitute an “accident” (and thus an “occurrence”) under the
language of commercial general liability insurance policies pub-
lished by the ISO in 1986.

Kotz Sangster Wysocki PC (by R. Edward Boucher,

Lauren Virzi, Tyler P. Phillips, and Jeffrey M. Sangster)
for Skanska USA Building Inc.

Plunkett Cooney (by Jeffrey C. Gerish and Tanya M.

Murray) for Amerisure Insurance Company and
Amerisure Mutual Insurance Company.

Amici Curiae:

Clark Hill PLC (by Jay M. Berger) and Cokinos

Young (by Patrick J. Wielinski) for the Associated
General Contractors of Michigan and the Associated
General Contractors of America.

Butzel Long, PC (by Eric J. Flessland, Kurtis T.

Wilder, and Michael R. Griffie) for the Michigan Infra-
structure & Transportation Association, Inc.

Facca, Richter & Pregler, PC (by Bruce M. Pregler)

for the Construction Association of Michigan.

Deneweth Dugan & Parfitt, PC (by Ronald A.

Deneweth and Deborah S. Kaleta) for Turner Construc-
tion Company and Gilbane Building Company.

Bush Seyferth PLLC (by Stephanie A. Douglas,

Michael J. Laramie, Justin B. Weiner, and Andrea S.
Carone) for the Home Builders Association of Michigan.
372 505 MICH 368 [June

Collins Einhorn Farrell PC (by Deborah A. Hebert)

for the Insurance Alliance of Michigan.

Hilger Hammond (by Benjamin H. Hammond and

Mark A. Rysberg) for Associated Builders & Contrac-
tors, Inc., of Michigan; Associated Builders & Contrac-
tors, Inc., Western Michigan Chapter; and Associated
Builders and Contractors of Southeastern Michigan,
Inc.

MCCORMACK, C.J. May unintentionally faulty sub-

contractor work that damages an insured’s work prod-
uct constitute an “accident” under a commercial gen-
eral liability insurance policy? Because we conclude
the answer is yes, we reverse the Court of Appeals’
judgment to the contrary. We also cabin the Court of
Appeals’ decision in Hawkeye-Security Ins Co v Vector
Constr Co, 185 Mich App 369; 460 NW2d 329 (1990), to
cases involving pre-1986 comprehensive general liabil-
ity insurance policies. We remand to the Court of
Appeals for consideration of any remaining issues.

I. FACTS AND PROCEDURAL HISTORY

The plaintiff, Skanska USA Building Inc., served as

the construction manager on a renovation project for
Mid-Michigan Medical Center–Midland (the Medical
Center); the plaintiff subcontracted the heating and
cooling portion of the project to defendant M.A.P.
Mechanical Contractors, Inc. (MAP). MAP obtained a
commercial general liability insurance policy (the CGL
policy) from defendant Amerisure Insurance Company
(Amerisure). The plaintiff and the Medical Center are
additional named insureds on the CGL policy.
In 2009, MAP installed a steam boiler and related
piping for the Medical Center’s heating system. MAP’s
2020] SKANSKA USA v MAP MECH CONTRACTORS 373

installation included several expansion joints. Some-

time between December 2011 and February 2012, the
plaintiff determined that MAP had installed some of
the expansion joints backward. Significant damage to
concrete, steel, and the heating system occurred as a
result. The Medical Center sent a demand letter to the
plaintiff, asserting that it must pay for all costs of
repair and replacement.
The next day, the plaintiff sent a demand letter to
MAP, asserting that MAP was responsible for all costs
of repair and replacement. The plaintiff performed the
work of repairing and replacing the damaged property.
According to the plaintiff, the cost of the repair and
replacement work was about $1.4 million. The plaintiff
submitted a claim to Amerisure, seeking coverage as
an insured. Amerisure denied the claim.
The plaintiff sued MAP and Amerisure, seeking
payment for the cost of the repair and replacement
work. Before the parties had completed discovery,
Amerisure moved for summary disposition under
MCR 2.116(C)(8) (failure to state a claim) and
MCR 2.116(C)(10) (no genuine issue of material fact),
alleging among other things that MAP’s defective
construction was not a covered “occurrence” within
the CGL policy. The trial court denied Amerisure’s
motion. The trial court first looked to the policy to
determine whether installation of the backward ex-
pansion joints was an “occurrence.” The relevant
provision provides:
a. We will pay those sums that the insured becomes
legally obligated to pay as damages because of . . . “prop-
erty damage” to which this insurance applies. . . .
b. This insurance applies to . . . “property damage” only
if:
374 505 MICH 368 [June

(1) The . . . “property damage” is caused by an “occur-

rence” . . . [.]

The policy defined “occurrence” as “an accident,

including continuous or repeated exposure to sub-
stantially the same general harmful conditions.” But
the policy did not define the word “accident.” The trial
court looked to the Court of Appeals’ decision in
Hawkeye, 185 Mich App at 374, which defined “acci-
dent” as “anything that begins to be, that happens, or
that is a result which is not anticipated and . . . takes
place without the insured’s foresight or expectation
and without design or intentional causation on his
part.” (Quotation marks and citation omitted.) But,
again citing Hawkeye, the trial court concluded that
“[d]efective workmanship, standing alone, is not an
occurrence within the meaning of a[] general liability
insurance contract[;] an occurrence exists where the
insured’s faulty work product damages the property
of another.”
The trial court held that the plaintiff and others
affected by MAP’s negligence did not anticipate back-
ward expansion joints or property damage. Because
no one argued that MAP had purposefully installed
the expansion joints backward, the trial court deter-
mined that an “occurrence” may have happened,
triggering Amerisure’s duty of coverage under the
insurance policy. Finally, the trial court cited caselaw,
including Hawkeye, for the proposition that damage
arising out of an insured’s defective workmanship
that is confined to the insured’s own work product
cannot be viewed as accidental under the policy.1
Because the damage caused by defective installation of

1
The plaintiff urged the trial court to follow Amerisure Mut Ins Co v
Hall Steel Co, unpublished per curiam opinion of the Court of Appeals,
issued December 10, 2009 (Docket No. 286677), pp 3-4, in which the
2020] SKANSKA USA v MAP MECH CONTRACTORS 375

the expansion joints by MAP may have gone beyond

the scope of the work required by the contract between
the plaintiff and the Medical Center, the court found a
question of material fact was in dispute and denied
summary disposition to Amerisure. Amerisure moved
for reconsideration; the trial court denied the motion.
Amerisure then deposed the plaintiff’s project man-
ager and filed a renewed summary disposition motion.
In response to Amerisure’s renewed motion, the plain-
tiff sought summary disposition on Amerisure’s liabil-
ity to the plaintiff. The plaintiff argued that Hawkeye
did not control because Hawkeye had interpreted a
prior version of the standard CGL policy issued by the
Insurance Services Office (ISO).2 The new version of
the policy (the one at issue here) provides coverage for
defective construction claims as long as a subcontrac-
tor completed the defective work.3 The plaintiff further
argued that MAP’s backward installation of the expan-
sion joints was an accident, which constituted an
“occurrence” under the policy.
Court of Appeals concluded that supplying defective steel was an
unanticipated event that qualified as an “accident” as that term was
defined in Hawkeye.
2
According to its website, the ISO “began life in 1971 as Insurance
Services Office.” ISO is not itself an insurance company; it “provides
advisory services and information to many insurance companies” and
“develops and publishes policy language that many insurance compa-
nies use as the basis for their products.” Verisk, Frequently Asked
Questions <https://www.verisk.com/insurance/about/faq> (accessed
May 22, 2020) [https://perma.cc/LNQ2-5HVA].
3
Hawkeye involved a 1973 comprehensive general liability policy (the
1973 policy) that contained an express exclusion of coverage for “prop-
erty damage to work performed by or on behalf of the named insured
arising out of the work or any portion thereof[.]” Hawkeye, 185 Mich App
at 383. But in 1986, the ISO revised the “your product” and “your work”
exclusions to include coverage for construction defects by the insured’s
subcontractors (the 1986 policy).
376 505 MICH 368 [June

The trial court again denied summary disposition to

both parties. The court reiterated its determination
that “defective workmanship, standing alone, is not an
occurrence within the meaning of a general liability
insurance contract.” The trial court clarified that it did
not determine whether an accident occurred, and it
therefore did not make a finding about whether there
was an “occurrence.” Rather, the court held that an
occurrence may have happened because the damage
caused by MAP’s defective installation of the expansion
joints may have gone beyond the scope of the work
required by the contract between the plaintiff and the
Medical Center. The trial court acknowledged the plain-
tiff’s argument that it should not rely on Hawkeye but
concluded that it had to follow the decision because it
had not been overruled.
Both plaintiff and Amerisure filed an application for
leave to appeal in the Court of Appeals, arguing that the
trial court should have resolved the issue in their
respective favors. The Court of Appeals granted the
applications and consolidated the appeals. In an unpub-
lished per curiam opinion, it reversed the trial court and
ordered that summary disposition be granted to Ameri-
sure; applying the Hawkeye Court’s definition of “acci-
dent,” the Court reasoned that there was no “occur-
rence” under the CGL policy because the only damage
was to the insured’s own work product. Skanska USA
Bldg, Inc v MAP Mech Contractors, Inc, unpublished per
curiam opinion of the Court of Appeals, issued
March 19, 2019 (Docket Nos. 340871 and 341589),
pp 9-10.
The plaintiff filed an application for leave to appeal in
this Court, arguing that the Court of Appeals erred by
concluding that Hawkeye controlled and that installing
the expansion joints backward constituted an “accident”
2020] SKANSKA USA v MAP MECH CONTRACTORS 377

as a matter of law. We granted leave to appeal, directed

the parties to address two issues,4 and invited several
organizations to file amicus curiae briefs. 504 Mich 980
(2019).5

II. CONTRACTUAL ANALYSIS

Insurance policies are contracts and, absent an

applicable statute, are subject to the same construction
principles applicable to other contracts. Titan Ins Co v
Hyten, 491 Mich 547, 554; 817 NW2d 562 (2012). This
case thus involves an issue of contract interpretation,
which is an issue of law that this Court reviews de
novo. McDonald v Farm Bureau Ins Co, 480 Mich 191,
197; 747 NW2d 811 (2008). That means that the Court
reviews the issue independently, with no required
deference to the trial court. Millar v Constr Code Auth,
501 Mich 233, 237; 912 NW2d 521 (2018).

A. TEXT

As usual, when interpreting a contract, we begin

with the text. Frankenmuth Mut Ins Co v Masters, 460
Mich 105, 111; 595 NW2d 832 (1999). The contract
defines “occurrence” as “an accident, including continu-
ous or repeated exposure to substantially the same
general harmful conditions.” Accordingly, the parties’

4
Our grant order directed the parties to brief “whether: (1) the
definition of ‘occurrence’ in Hawkeye-Security Ins Co v Vector Construc-
tion Co, 185 Mich App 369 (1990), remains valid under the terms of the
commercial general-liability policy at issue here; and (2) the plaintiff
has shown a genuine issue of material fact as to the existence of an
‘occurrence’ under those terms.”
5
We again thank counsel for both parties for agreeing to use video-
conferencing software to participate in oral arguments. That agreement
prevented delay in disposition of this case because of the COVID-19
pandemic.
378 505 MICH 368 [June

arguments rightfully focus on whether MAP’s errone-

ous backward installation of the expansion joints is an
“accident.”
This Court has said that an “accident” is “an unde-
fined contingency, a casualty, a happening by chance,
something out of the usual course of things, unusual,
fortuitous, not anticipated and not naturally to be
expected.” Allstate Ins Co v McCarn, 466 Mich 277,
281; 645 NW2d 20 (2002) (quotation marks and cita-
tion omitted).6 Generally, faulty work by a subcontrac-
tor may fall within the plain meaning of most of these
terms. It happens by chance, is outside the usual
course of things, and is neither anticipated7 nor natu-
rally to be expected.8

6
The parties concede that the policy does not define “accident” and
that the definition of “accident” from this Court’s opinion in McCarn
controls here; they disagree only over how it applies.
7
Even if an insured acts intentionally, the act may still be an accident.
Metro Prop & Liability Ins Co v DiCicco, 432 Mich 656, 670; 443 NW2d
734 (1989) (opinion by RILEY, C.J.); see also Auto Club Group Ins Co v
Marzonie, 447 Mich 624, 638; 527 NW2d 760 (1994) (“[A]n accident may
include an unforeseen consequence of an intentional act of the insured.”)
(opinion by RILEY, J.). In Frankenmuth Mut Ins Co, 460 Mich at 115, in
interpreting a CGL policy like the one at issue here, this Court
reiterated that “an insured need not act unintentionally for the act to
constitute an ‘accident’ and therefore an ‘occurrence.’ ” (Quotation
marks and citation omitted.) “[T]he appropriate focus of the term
‘accident’ must be on both the injury-causing act or event and its
relation to the resulting property damage or personal injury.” McCarn,
466 Mich at 282 (quotation marks, citations, and emphasis omitted).
And this analysis is subjective from the standpoint of the insured. Id. at
284.
8
Other courts have reached this same conclusion in this same
context. See, e.g., Greystone Constr, Inc v Nat’l Fire & Marine Ins Co, 661
F3d 1272, 1283 (CA 10, 2011) (stating that “damage caused by faulty
workmanship is neither expected nor intended from the standpoint of
the policyholders and, therefore, receives coverage so long as it does not
fall under a policy exclusion”); Capstone Bldg Corp v American Motorists
Ins Co, 308 Conn 760, 776; 67 A3d 961 (2013) (stating that “because
2020] SKANSKA USA v MAP MECH CONTRACTORS 379

Reading the contract as a whole confirms this con-

clusion. See Wilkie v Auto-Owners Ins Co, 469 Mich 41,
50 n 11; 664 NW2d 776 (2003) (“We read contracts as a
whole[.]”). The policy contains an exclusion precluding
coverage for an insured’s own work product, but it
contains an exception for work performed by a subcon-
tractor on the insured’s behalf:
l. Damage To Your Work
“Property damage” to “your work”[9] arising out of it or
any part of it and included in the “products-completed
operations hazard”.[10]
This exclusion does not apply if the damaged work or
the work out of which the damage arises was performed on
your behalf by a subcontractor.

If faulty workmanship by a subcontractor could never

constitute an “accident” and therefore never be an
“occurrence” triggering coverage in the first place, the
subcontractor exception would be nugatory. Just as
with statutory interpretation, courts must give effect
to every word, phrase, and clause in a contract and
avoid an interpretation that would render any part of
the contract nugatory. Klapp v United Ins Group
negligent work is unintentional from the point of view of the insured, we
find that it may constitute the basis for an ‘accident’ or ‘occurrence’ under
the plain terms of the commercial general liability policy”); Lamar Homes,
Inc v Mid-Continent Cas Ins Co, 242 SW3d 1, 8 (Tex, 2007) (stating that
“a deliberate act, performed negligently, is an accident if the effect is not
the intended or expected result; that is, the result would have been
different had the deliberate act been performed correctly”).
9
The CGL policy defines “your work” in relevant part as “(1) Work or
operations performed by you or on your behalf; and (2) Materials, parts,
or equipment furnished in connection with such work or operations.”
10
The CGL policy defines “products-completed operations hazard,”
which includes, in relevant part, “ ‘property damage’ occurring away
from premises you own or rent and arising out of ‘your product’ or ‘your
work’ except: . . . (2) Work that has not yet been completed or aban-
doned.” (Paragraph structure omitted.)
380 505 MICH 368 [June

Agency, Inc, 468 Mich 459, 468; 663 NW2d 447 (2003).11
Many other courts have recognized this same flaw
in the reasoning put forth by insurers. See, e.g.,
Greystone Constr, Inc v Nat’l Fire & Marine Ins Co, 661
F3d 1272, 1289 (CA 10, 2011) (“[T]he only way [the
“your work” exclusion] has effect is if we find that
physical injury caused by poor workmanship—
whether to some part of the work itself or third-party
property—may be an occurrence under standard CGL
policies.”); Sheehan Constr Co, Inc v Continental Cas
Co, 935 NE2d 160, 171 (Ind, 2010) (“If the insuring
provisions do not confer an initial grant of coverage,
then there would be no reasons for a ‘your work’
exclusion.”), mod on reh 938 NE2d 685 (Ind, 2010).
Amerisure counters that mere unanticipated dam-
age is insufficient; an “accident,” Amerisure asserts,
must involve a “fortuity,” which means something over
which the insured has no control. This is an overly
stingy reading of the word “accident.” As our definition
in McCarn shows, fortuity is one way to show that an

11
Considering the exclusions as part of our textual analysis does not,
as Amerisure argues, violate this Court’s two-step process for assessing
whether there is coverage under an insurance policy: first, determine
whether coverage exists and second, determine whether an exclusion
applies that would negate coverage. Hunt v Drielick, 496 Mich 366, 373;
852 NW2d 562 (2014). Nor does it violate the corollary rule that
“exclusionary clauses never grant coverage, but rather limit the scope of
the basic protection statement.” Fresard v Mich Millers Mut Ins Co, 414
Mich 686, 697; 327 NW2d 286 (1982). Not allowing the exclusions to
grant coverage does not require us to blind ourselves to their existence
when determining the scope of coverage; to do so would violate the rule
that courts must read the contract as a whole. Id. at 694; see also US
Fire Ins Co v JSUB, Inc, 979 So 2d 871, 886 (Fla, 2007) (stating that “our
interpretation of the term ‘occurrence’ is guided by a view of the policy
as a whole, . . . [and] ‘[a]lthough exclusionary clauses cannot be relied
upon to create coverage, principles governing the construction of insur-
ance contracts dictate that when construing an insurance policy to
determine coverage the pertinent provisions should be read in pari
materia’ ”) (second alteration in original).
2020] SKANSKA USA v MAP MECH CONTRACTORS 381

incident is an accident, but it is not the only way.12 See

also Greystone Constr, Inc, 661 F3d at 1285 (stating
that “an unanticipated or unforeseeable injury to per-
son or property—even in the absence of true fortuity
—may be an accident and, therefore, a covered occur-
rence”); Capstone Bldg Corp v American Motorists Ins
Co, 308 Conn 760, 775; 67 A3d 961 (2013) (rejecting the
argument that “defective construction lacks the ele-
ment of ‘fortuity’ necessary for an accident” because
“the mere fact that defective work is in some sense
volitional does not preclude it from coverage under the
terms of the policy”); Lamar Homes, Inc v
Mid-Continent Cas Co, 242 SW3d 1, 8 (Tex, 2007)
(stating that “a deliberate act, performed negligently,
is an accident if the effect is not the intended or
expected result”). Amerisure’s position would also con-
tradict this Court’s statement that “an insured need
not act unintentionally” for the act to constitute an
“accident.” Frankenmuth, 460 Mich at 115 (quotation
marks and citation omitted). And as discussed, the
plain meaning of the word “accident” has a broader
meaning than “fortuity.” See Greystone Constr, Inc, 661
F3d at 1285 (concluding that “fortuity is not the sole
prerequisite to finding an accident under a CGL policy”
and citing dictionary definitions of “accident” to con-
clude that the covered occurrences included unantici-
pated or unforeseeable injuries “even in the absence of
true fortuity”).13

12
We reject Amerisure’s argument that because we used eight descrip-
tors for the term “accident” in McCarn and connected those descriptors
with the word “and,” each one of those descriptors must be satisfied for an
“accident” to have occurred. We have never said that, and when inter-
preting a contractual or statutory term, we typically apply the definition
of a term that is the most reasonable given the context in which it is used;
we do not hold that a term has to meet every single one of the potential
definitions.
13
The courts that have held that an “accident” must involve a true
382 505 MICH 368 [June

Nor is there any support for the Court of Appeals’

conclusion that “accident” cannot include damage lim-
ited to the insured’s own work product. See Skanska
USA Bldg, unpub op at 10. Amerisure does little to
defend that holding, and focuses mainly on its fortuity
argument. Most significantly, the Court of Appeals
fortuity notwithstanding the plain meaning of “accident” have relied
more on judicial gloss on that term than on the plain meaning of the
word. See, e.g., Kvaerner Metals Div of Kvaerner US, Inc v Commercial
Union Ins Co, 589 Pa 317, 335; 908 A2d 888 (2006) (holding that “the
definition of ‘accident’ required to establish an ‘occurrence’ under the
policies cannot be satisfied by claims based upon faulty workmanship”
because “[s]uch claims simply do not present the degree of fortuity
contemplated by the ordinary definition of ‘accident’ or its common
judicial construction in this context”) (emphasis added); Cincinnati Ins
Co v Motorists Mut Ins Co, 306 SW3d 69, 74 (Ky, 2010) (stating that
“[i]nherent in the plain meaning of ‘accident’ is the doctrine of fortuity”
but citing two secondary sources rather than a lay dictionary for the
proposition that “[t]he fortuity principle is central to the notion of what
constitutes insurance”) (second alteration in original). We acknowledge,
but decline to adopt, this view for the reasons stated in this opinion.
Some courts retain a fortuity requirement not based on the plain
meaning of the word “accident” but, instead, based on a common-law
prerequisite to insurance coverage. See, e.g., Aluminum Co of America v
Aetna Cas & Surety Co, 140 Wash 2d 517, 556; 998 P2d 856 (2000)
(noting that “the fortuity principle never appears in insurance con-
tracts” but that “[t]he principle is rooted in common law”); Fed Ins Co v
Coast Converters, Inc, 130 Nev 960, 967; 339 P3d 1281 (2014) (stating
that “the fortuity principle applies even if not explicitly written into the
insurance contract”); see also 7 Couch, Insurance, 3d (rev ed), § 102:10,
p 102-35 (stating that “[t]he known risk, known loss, and loss in
progress defenses are generally considered to be part of the ‘fortuity’
requirement that runs throughout insurance law”); Couch, § 101:2,
pp 101-7, 101-9 (stating that to be covered, an insured’s loss “must occur
as a result of a fortuitous event, not one planned, intended, or antici-
pated” and that “[e]xcept for the risk requirements previously discussed
and barring public policy considerations, the parties are free to contract
for which risks the insurer shall or shall not insure”) (emphasis added).
We decline to address whether an extra-textual fortuity requirement
could provide an independent basis for denying coverage here because
Amerisure has not made that argument; it argues only that the meaning
of “accident” in the policy is limited to a true fortuity.
2020] SKANSKA USA v MAP MECH CONTRACTORS 383

accepted that an insured can seek coverage for its

damage to a third party’s property. Id. at 9-10. But the
policy does not limit the definition of “occurrence” by
reference to the owner of the damaged property. See
Capstone Bldg Corp, 308 Conn at 777 (stating that “we
see no basis in the language of the policy for limiting
coverage to liability for harm to third parties”); Lamar
Homes, 242 SW3d at 9 (noting that “no logical basis
within the ‘occurrence’ definition allows for distin-
guishing between damage to the insured’s work and
damage to some third party’s property”); Greystone
Constr, Inc, 661 F3d at 1283 (concluding that the cases
that define “occurrence” on the basis of who was
injured, and not on what caused the injury, “subdi-
vide[] ‘occurrence’ into two camps,” which renders “the
‘your work’ exception superfluous, the subcontractor
exception unnecessary, and therefore creates a funda-
mental inconsistency with the logic of CGL policies”).14

14
Indeed, an inquiry based on “whose property is damaged” has been
pretty universally condemned. See, e.g., US Fire Ins Co, 979 So 2d at
883-884, which stated:
Further, we fail to see how defective work that results in a claim
against the contractor because of injury to a third party or
damage to a third party’s property is “unforeseeable,” while the
same defective work that results in a claim against the contractor
because of damage to the completed project is “foreseeable.” This
distinction would make the definition of “occurrence” dependent
on which property was damaged. For example, applying U.S.
Fire’s interpretation in this case would make the subcontractor’s
improper soil compaction and testing an “occurrence” when it
damages the homeowners’ personal property, such as the wallpa-
per, but not an “occurrence” when it damages the homeowners’
foundations and drywall. As the Tennessee Supreme Court ex-
plained, in rejecting this distinction:

A shingle falling and injuring a person is a natural conse-

quence of an improperly installed shingle just as water
damage is a natural consequence of an improperly in-
stalled window. If we assume that either the shingle or the
384 505 MICH 368 [June

The Court of Appeals failed to recognize that an

insured’s own defective workmanship is excluded from
coverage via the explicit exclusions, not in the initial
grant of coverage. See, e.g., American Family Mut Ins
Co v American Girl, Inc, 268 Wis 2d 16, 39; 2004 WI 2;
673 NW2d 65 (2004) (“CGL policies generally do not
cover contract claims arising out of the insured’s de-
fective work or product, but this is by operation of the
CGL’s business risk exclusions, not because a loss
actionable only in contract can never be the result of an
‘occurrence’ within the meaning of the CGL’s initial
grant of coverage.”).15
window installation will be completed negligently, it is
foreseeable that damages will result. If, however, we assume
that the installation of both the shingle and the window will
be completed properly, then neither the falling shingle nor
the water penetration is foreseeable and both events are
“accidents.” Assuming that the windows would be installed
properly, Moore could not have foreseen the water penetra-
tion. Because we conclude the water penetration was an
event that was unforeseeable to Moore, the alleged water
penetration is both an “accident” and an “occurrence” for
which there is coverage under the “insuring agreement.”
[Quoting Travelers Indemnity Co of America v Moore & Assoc, Inc, 216
SW3d 302, 309 (Tenn, 2007).]
15
Many courts have expressly limited the extent to which damages
may be covered for faulty subcontractor work based on whether the
damage is to defective or nondefective work product. For example, the
court in Greystone Constr, Inc, 661 F3d at 1283, held that “CGL policies
are meant to cover unforeseeable damages—a category that encom-
passes faulty workmanship that leads to physical damage of nondefec-
tive property.” The court explained “that CGL policies implicitly distin-
guish between damage to nondefective work product and damage to
defective work product” and because “[t]he obligation to repair defective
work is neither unexpected nor unforeseen under the terms of the
construction contract or the CGL policies,” only damage to the nonde-
fective work product is covered under the policy. Id. at 1286. Other
courts, however, have held that—rather than limit coverage to nonde-
fective work based on the definition of “accident”—the defective work-
manship itself is not covered because it does not constitute “property
2020] SKANSKA USA v MAP MECH CONTRACTORS 385

Amerisure also argues that interpreting the policy to

cover faulty subcontractor work essentially converts the
policy into a performance bond. But that coverage may
overlap with a performance bond is not a reason to
deviate from the most reasonable reading of the policy
language. Lamar Homes, 242 SW3d at 10 (observing
that “[t]he CGL policy covers what it covers” and finding
no basis for eliminating coverage “simply because simi-
lar protection may be available through another insur-
ance product”). Performance bonds have a few key
differences from the CGL policies. First, “a performance
bond benefits the owner of a project rather than the
contractor” because the bond’s purpose “is to guarantee
the completion of the contract upon default by the
contractor.” US Fire Ins Co v JSUB, Inc, 979 So 2d 871,
887 (Fla, 2007) (quotation marks and citation omitted).
Second, “a surety, unlike a liability insurer, is entitled to
indemnification from the contractor.” Id. at 888. And
third, a performance bond’s coverage “is broader than a
CGL policy in that it guarantees the completion of a
construction contract upon the default of the general
contractor.” Id.
For these reasons, given the plain meaning of the
word “accident,” we conclude that faulty subcontractor
work that was unintended by the insured may consti-
tute an “accident” (and thus an “occurrence”) under a
CGL policy.
damage” as defined under the policy. See, e.g., Capstone Bldg Corp, 308
Conn at 776, Taylor Morrison Servs, Inc v HDI-Gerling America Ins Co,
293 Ga 456; 746 SE2d 587 (2013), and US Fire Ins Co, 979 So 2d at 886.
We express no opinion regarding these approaches because they were
not raised by the parties and do not have any direct impact on how we
define “accident.” Because our holding is simply that faulty subcontrac-
tor work may constitute an “accident,” we leave any determination
regarding the extent to which the damages to the work product are
covered under the policy to the lower courts.
386 505 MICH 368 [June

B. CONTEXT AND HISTORY

The context and history of CGL policies support our

conclusion that an “accident” may include damage to
an insured’s own work product, and they are particu-
larly helpful in understanding the term given the
significant changes in the insurance industry since the
1970s. The distinction between damage to property of a
third party and the insured’s own work product stands
on an outdated rationale grounded in the language of
the 1973 policy. That earlier policy featured the “busi-
ness risk” doctrine—a concept advanced by Roger
Henderson in a 1971 law review article16—under which
many risks inherent in doing business were excluded.17
O’Connor, What Every Court Should Know About In-
surance Coverage for Defective Construction, 5 C Con-

16
See Henderson, Insurance Protection for Products Liability and
Completed Operations–What Every Lawyer Should Know, 50 Neb L Rev
415, 438-441 (1971).
17
The 1973 CGL policy included language that purported to exclude
certain “business risks”; in that regard, the 1973 policy stated that the
insurance did not apply to the following:
(n) to property damage to the named insured’s products
arising out of such products or any part of such products;
(o) to property damage to work performed by or on
behalf of the named insured arising out of the work or any
portion thereof, or out of materials, parts or equipment
furnished in connection therewith;
(p) to damages claimed for the withdrawal, inspection,
repair, replacement, or loss of use of the named insured’s
products or work completed by or for the named insured or
of any property of which such products or work form a part,
if such products, work or property are withdrawn from the
market or from use because of any known or suspected
defect or deficiency therein . . . . [French, Revisiting Con-
struction Defects as “Occurrences” Under CGL Insurance
Policies, 19 U Pa J Bus L 101, 106-107 (2016) (referring to
the three “business risk exclusions” in the 1973 CGL policy),
quoting ISO Form No. GL 00 02 01 73, Comprehensive
General Liability Insurance Coverage Form (1973).]
2020] SKANSKA USA v MAP MECH CONTRACTORS 387

str Law J 1, 12-13 (Winter, 2011) (arguing that “[t]he

common denominator of the reported decisions that
reject as outcome-determinative the ‘business risk’ doc-
trine and the old Henderson article, is the courts’
conscientious insistence that policy coverage disputes
begin and end with the language of the policy” and that
“[a]s between these two conflicting coverage criteria—
the ‘business risk’ doctrine and the actual language of
the policy—the latter should always control”).18 Indeed,
Weedo v Stone-E-Brick, Inc, 81 NJ 233, 240-241; 405
A2d 788 (1979), a seminal case in this area (and cited
in Hawkeye) relied on Henderson’s article in distin-
guishing covered occurrences involving damage to the
property of a third party and noncovered business
risks involving damage to the contractor’s own work.
See id. (quoting the Henderson article and then includ-
ing a hypothetical about “the boundaries between
‘business risks’ and occurrences giving rise to insur-
able liability”).
Decisions such as Weedo reflect an outdated view of
the insurance industry.19 In 1986, the ISO distributed
the policy language at issue, reshaping the scope of
coverage under CGL policies. And it adopted those
changes to expand coverage to include some of those

18
Earlier courts appear to have erred by reading a general “business
risk” exception into the initial grant of coverage—instead of relying on
the explicit exclusions in the contract. See, e.g., Travelers Indemnity Co
of America, 216 SW3d at 307 (“Reliance upon a CGL’s ‘exclusions’ to
determine the meaning of ‘occurrence’ has resulted in ‘regrettably
overbroad generalizations’ concerning CGLs.”) (citation omitted). This
error allowed courts to distinguish damage to a third party’s property
and damage to an insured’s work product despite the absence of any
textual support for it. This error has also resulted in courts, like the
Court of Appeals here, continuing to deny coverage for a subcontractor’s
faulty workmanship despite the ISO’s 1986 changes to the CGL policy.
19
As we do here, the New Jersey Supreme Court also distinguished
Weedo from cases involving 1986 CGL policies. See Cypress Point Condo
Ass’n, Inc v Adria Towers, LLC, 226 NJ 403; 143 A3d 273 (2016).
388 505 MICH 368 [June

business risks, specifically damage caused by a subcon-

tractor’s faulty workmanship (with no carveout based
on whose property is damaged). See US Fire Ins Co, 979
So 2d at 879 (citing the ISO circular confirming that the
1986 revisions to the standard CGL policy not only
incorporated the “Broad Form” property endorsement
but also specifically “cover[ed] damage caused by faulty
workmanship to other parts of work in progress; and
damage to, or caused by, a subcontractor’s work after
the insured’s operations are completed”) (quotation
marks and citation omitted; alteration in original);
French, Revisiting Construction Defects as “Occur-
rences” Under CGL Insurance Policies, 19 U Pa J Bus L
101, 119 (2016) (stating that “the Weedo decision is
obsolete and of little value today in analyzing whether
construction defects can constitute occurrences” and
noting that “the court did not analyze the definition of
‘occurrence’ in the policy at issue” and that “the business
risk exclusions at issue in the case were redrafted in
1986 to provide much narrower reductions in coverage
than the earlier versions of such exclusions”).20 Thus,
the 1986 reformation of the scope of coverage under the
CGL policies underscored a plain reading of “accident”
—that faulty subcontractor work may fall within the
policy’s coverage.21

20
See generally Ohio Northern Univ v Charles Constr Servs, Inc, 155
Ohio St 3d 197, 205-206; 2018-Ohio-4057; 120 NE3d 762 (2018) (citing
Ohio Supreme Court precedent for the proposition that “the general
principle underlying CGL policies is that they are not intended to protect
business owners from ordinary business risks” but not considering the
1986 changes to CGL policies).
21
Of course, an insurer is free to contractually limit the coverage for
subcontractor work. “[I]f the insurer decides that this is a risk it does not
want to insure, it can clearly amend the policy to exclude coverage, as
can be done simply by either eliminating the subcontractor exception or
adding a breach of contract exclusion.” US Fire Ins Co, 979 So 2d at 891;
see also Lamar Homes, 242 SW3d at 12 (“More recently, the [ISO] has
issued an endorsement that may be included in the CGL to eliminate the
subcontractor exception to the ‘your-work’ exclusion.”).
2020] SKANSKA USA v MAP MECH CONTRACTORS 389

III. HAWKEYE

So what of Hawkeye? Hawkeye considered whether a

1973 policy provided coverage to a contractor for dam-
ages resulting from its own defective work, not the
work of its subcontractor. Those differences are signifi-
cant, and as a result, whether Hawkeye was correctly
decided is not properly before us. We therefore see no
reason to answer that question today.22 Further, be-
cause Hawkeye interpreted a 1973 policy that did not
cover damage caused by a subcontractor’s faulty work-
manship, Hawkeye is not persuasive.23

22
While the alteration to the definition of “occurrence” from the 1973
policy to the 1986 policy was slight and didn’t change the portion of the
definition analyzed in Hawkeye, as explained, the changes to other
portions of the policy language illustrate that the new policy broadened
the scope of coverage. Despite this change, in a case involving the 1986
policy, Radenbaugh v Farm Bureau Gen Ins Co of Mich, 240 Mich App
134, 147; 610 NW2d 272 (2000), the Court of Appeals described the state
of the law in Michigan as follows: “[W]hen an insured’s defective work-
manship results in damage to the property of others, an ‘accident’ exists
within the meaning of the standard comprehensive liability policy.” This
statement doesn’t reflect the revised policy’s broadened scope of coverage
given the revised language of the exclusions, under which defective
workmanship by the insured’s subcontractor resulting in damage to work
performed by or on behalf of the insured is not excluded from coverage.
Given the broadened scope of coverage stemming from the changes to the
language of the exclusions, we do not find it significant that the definition
of “occurrence” in Radenbaugh was “not significantly different in sub-
stance” from the definition in Hawkeye. Liparoto Constr, Inc v Gen Shale
Brick, Inc, 284 Mich App 25, 38; 772 NW2d 801 (2009).
23
Hawkeye is also arguably not persuasive here because the plaintiff
appears to seek coverage for property damage that goes beyond the
scope of MAP’s defective work. See, e.g., High Country Assoc v New
Hampshire Ins Co, 139 NH 39, 43; 648 A2d 474 (1994) (distinguishing
its prior decision in McAllister v Peerless Ins Co, 124 NH 676; 474 A2d
1033 (1984), relied on by the Hawkeye panel, see Hawkeye, 185 Mich App
at 377-378, because “the plaintiff in the underlying suit alleged negli-
gent construction that resulted in property damage, rather than merely
negligent construction”). In Hawkeye, the defendant sought coverage
solely for the removal and repouring of defective concrete—the fixing
and redoing of the work it had performed before. Hawkeye, 185 Mich
390 505 MICH 368

Therefore, we limit its holding to cases involving the

pre-1986 CGL policy language.24

IV. CONCLUSION

We hold that an “accident” may include unintention-

ally faulty subcontractor work that damages an in-
sured’s work product. We therefore reverse the Court
of Appeals’ judgment and cabin the Court of Appeals’
decision in Hawkeye to cases involving pre-1986 insur-
ance policies. We remand to the Court of Appeals for
consideration of any remaining issues.25

MARKMAN, ZAHRA, VIVIANO, BERNSTEIN, CLEMENT, and

CAVANAGH, JJ., concurred with MCCORMACK, C.J.
App at 378-379. Thus, its holding that defective workmanship “standing
alone” is not a covered occurrence, id. at 378, does not apply. But we
need not definitively resolve that issue because we hold that subcon-
tractor work that damages only an insured’s work product may consti-
tute an “accident.” See note 15 of this opinion.
24
The last four digits of the 10-digit ISO policy form provide the
edition date in month and year format. For example, the policy form at
issue here is CG 00 01 12 07, so the edition date is December 2007.
25
In addition to the issues discussed, Amerisure argues briefly that we
should affirm the Court of Appeals on alternative grounds because
coverage is barred by the “your work” policy exclusion. Specifically,
Amerisure asserts that because MAP is a named insured under the CGL
policy, the subcontractor exception to the “your work” exclusion does not
apply. See, e.g., Double AA Builders, Ltd v Preferred Contractors Ins Co,
LLC, 241 Ariz 304, 306; 386 P3d 1277 (2016) (holding that the subcon-
tractor exception to the “your work” exclusion did not apply because the
subcontractor was a “Named Insured” under the CGL policy). Amerisure
also asks that if we overrule Hawkeye (and presumably that if we simply
limit it, as we have here), we do so only prospectively, citing our decision
in Pohutski v Allen Park, 465 Mich675, 695-696; 641 NW2d 219 (2002).
We also directed the parties to brief whether there is a genuine issue of
material fact as to the existence of an occurrence. We decline to address
these issues because the first two were not decided below and the parties
do not present adversarial arguments about the last. On remand, the
Court of Appeals may, but need not necessarily, address these issues,
depending on whether it determines they are properly presented and
preserved for its review.
 PEOPLE V VANDERPOOL 391

PEOPLE v VANDERPOOL

Docket No. 158486. Argued on application for leave to appeal

November 6, 2019. Decided July 13, 2020.
In August 2016, John D. Vanderpool pleaded no contest to possession
of less than 25 grams of heroin, MCL 333.7403(2)(a)(v), second
offense, and to violating probation. On June 24, 2013, Vanderpool
had been sentenced to a two-year term of probation after pleading
guilty to assaulting a police officer. Vanderpool’s term of probation
expired on June 25, 2015. On September 23, 2015, a probation
officer petitioned the Tuscola Circuit Court to extend Vanderpool’s
term of probation until June 25, 2016. Without providing Vander-
pool notice or a hearing on the petition, the court, Amy Grace
Gierhart, J., granted the petition and purported to extend Vander-
pool’s term of probation until June 25, 2016. On December 4, 2015,
probation officers conducted a compliance check at Vanderpool’s
residence and found heroin that Vanderpool admitted belonged to
him. Vanderpool was arrested on December 30, 2015, when he was
again found in possession of heroin, and he was subsequently
charged with two counts of possession with intent to deliver heroin
and violating probation. Vanderpool moved to suppress the evi-
dence found during the compliance check on the basis that it was
not authorized because the circuit court had lacked the authority to
extend his term of probation after it had expired. The circuit court
denied the motion, and Vanderpool pleaded no contest to one count
of possession of heroin and to violation of probation. The Court of
Appeals granted Vanderpool’s delayed application for leave to
appeal. In a split decision, the Court of Appeals, CAMERON, P.J.
(O’CONNELL, J., concurring, and JANSEN, J., concurring in part and
dissenting in part), affirmed Vanderpool’s conviction. 325 Mich App
493 (2018). The Supreme Court ordered and heard oral argument
on whether to grant Vanderpool’s application for leave to appeal.
504 Mich 872 (2019).
In an opinion by Justice CAVANAGH, joined by Chief Justice
MCCORMACK and Justices BERNSTEIN and CLEMENT, the Supreme
Court held:
When read together, MCL 771.2 through MCL 771.6 require
the result that after Vanderpool’s term of probation expired on
392 505 MICH 391 [July

June 25, 2015, the circuit court no longer had the authority to
extend his probationary period under MCL 771.5(1) or to amend
it under MCL 771.2(5). On June 25, 2013, the court fixed Vander-
pool’s probationary period, as required by MCL 771.2(1), at two
years; the two-year period ended on June 25, 2015. Under MCL
771.5(1), on or before that date, Vanderpool’s probation officer
was required to report on his conduct during the probationary
term. Pursuant to that statute, upon receiving that report, the
court would have had the choice to either discharge Vanderpool
from probation or extend the probationary period. However,
Vanderpool’s probation officer did not report on Vanderpool’s
conduct on or before the two-year term of probation ended on
June 25, 2015. Therefore, Vanderpool’s period of probation termi-
nated on that date. When Vanderpool’s probation officer sought to
extend the probation period on September 23, 2015, the court no
longer had statutory authority to do so because the period had
already terminated under MCL 771.5(1) or expired under MCL
771.6. Logically, once a period has expired, or come to an end, it
cannot be extended. Further, the circuit court’s authority to
extend the probation period is conditioned under MCL 771.5(1)
upon its receiving the report of the probation officer, which must
be provided to the court “when the probation period terminates”;
the court’s attempt to extend the probation period several months
after it had terminated did not align with this statutory language.
The court also lacked authority to amend the probationary period
by extending it after it expired. MCL 771.2(5) allows the court to
amend a probation order “at any time” while a defendant is under
the order of probation. Once the order expired in this case, the
court could no longer amend it. The Court of Appeals’ reliance on
People v Marks, 340 Mich 495 (1954), in concluding that MCL
771.2(5) and MCL 771.4 require a contrary outcome was mis-
placed. Marks did not address whether the predecessor to MCL
771.2 allowed a probation order that had expired to be amended.
Marks also relied on Burns v United States, 287 US 216 (1932),
which addressed probation revocation during the period of pro-
bation. Burns therefore did not dictate the result in this case, in
which probation was extended after the probationary term ex-
pired. Additionally, whether Vanderpool was discharged from
probation did not depend on whether the court had entered an
order discharging him. Vanderpool was discharged from proba-
tion when the period of probation ended because he was relieved
of his duty to comply with the terms of probation as of that date.
MCL 771.6 recognizes that a probationer is simply discharged
from probation upon expiration of the probationary period, which
does not require any action by the court.
2020] PEOPLE V VANDERPOOL 393

Reversed and remanded.

Justice ZAHRA, joined by Justices MARKMAN and VIVIANO,
dissenting, disagreed with the majority’s statutory analysis.
MCL 771.2(5) permits the circuit court to amend an order of
probation “at any time,” in contrast to the language of MCL 771.4,
which requires that a revocation proceeding commence during
the “probation period.” The lack of reference in MCL 771.2(5) to
the defendant’s “probation period” must be considered intentional
in light of the Legislature’s use of the broader “at any time”
language in MCL 771.2(5). Accordingly, MCL 771.2(5) indicates
that the Legislature did not limit a circuit court’s authority to
amend a probation order to the “probation period,” and instead,
the court may amend an order “at any time” within the statutory
maximum period of five years, even after the expiration of the
originally imposed period of probation. The majority’s contrary
conclusion relies heavily on the reporting requirement in
MCL 771.5(1) and adds a temporal requirement. A probation
officer is not required by the statute to furnish to the court a
report on the defendant’s conduct during probation at the very
moment of the defendant’s discharge. Rather, the statute antici-
pates a sequence of events that occur following the termination of
the probation period, including the preparation and presentation
of the probation officer’s report, which necessarily means the
court’s jurisdiction extends past the expiration of the defendant’s
originally imposed period of probation. A defendant is not auto-
matically discharged from probation when the probation period
expires. MCL 771.2(1) makes clear that a trial court maintains
jurisdiction over an individual convicted of a felony for up to five
years; therefore, Vanderpool should have been aware that his
order of probation was subject to extension until he received an
order of discharge from the court. Justice ZAHRA agreed with the
Court of Appeals that due process did not require that Vanderpool
receive notice and an opportunity for a hearing before the court
extended the order of probation. Although Gagnon v Scarpelli,
411 US 778 (1973), extends due-process protections to the revo-
cation of probation, the extension of probation does not result in
the type of loss of liberty that is caused by revocation of parole or
probation; due-process protections therefore need not be afforded
to defendants before probation is extended.

CRIMINAL LAW — PROBATION — THE COURT’S AUTHORITY TO EXTEND THE

PROBATIONARY PERIOD AFTER IT HAS ENDED.
Sentencing courts have wide discretion in setting the terms of
probation and may extend the period of probation through
amendment under MCL 771.2(5) or at the termination of the
394 505 MICH 391 [July
OPINION OF THE COURT
period of probation under MCL 771.5(1); but when read together,
MCL 771.2 through MCL 771.6 indicate that the sentencing court
lacks the authority to extend a probationer’s period of probation
after the period of probation has ended; that is, after the proba-
tionary period has ended, the sentencing court has neither
the authority to “extend” the probationary period under
MCL 771.5(1) nor to “amend” the probationary period under
MCL 771.2(5); although a defendant has the right to be dis-
charged per the procedures in MCL 771.6, the circuit court’s
failure to carry out its duty to provide the defendant with
documentation of his or her discharge does not result in the
defendant having to comply with an expired order of probation.

Mark E. Reene, Prosecuting Attorney, and Eric F.

Wanink, Chief Assistant Prosecuting Attorney, for the
people.

Warner Norcross & Judd (by Gaëtan Gerville-Réache

and Brandon Cory) for defendant.

CAVANAGH, J. While conducting a probation compli-

ance check on defendant John D. Vanderpool’s house, a
probation agent found heroin. Defendant admitted that
the heroin belonged to him. A few weeks later, defendant
was arrested and was again found in possession of
heroin. He was charged with two counts of possession
with intent to deliver heroin and with violating proba-
tion. Defendant moved to suppress evidence from the
compliance check, arguing that the search was illegal
because he was not on probation at the time of the
search, but the circuit court denied the motion. Defen-
dant pleaded no contest to having violated probation
and to having possessed less than 25 grams of a con-
trolled substance, MCL 333.7403(2)(a)(v), second of-
fense. Defendant has appealed, arguing that because he
was not on probation when his home was searched, the
search was unlawful. We agree. While the circuit court
attempted to extend defendant’s probation before the
compliance check, because the term of probation had
2020] PEOPLE V VANDERPOOL 395
OPINION OF THE COURT

already expired, the court did not have the authority to

extend it. Consequently, the warrantless search of de-
fendant’s home was not justified. Accordingly, we re-
verse the Court of Appeals’ judgment and remand to the
Tuscola Circuit Court for further proceedings consistent
with this opinion.

I. FACTS AND PROCEDURAL HISTORY

Defendant was sentenced to a two-year term of pro-

bation on June 25, 2013, after pleading no contest to
assaulting a police officer. The terms of probation in-
cluded a prohibition on the use or possession of con-
trolled substances and authorization of compliance
checks permitting probation officers to search his prop-
erty. The two years passed; June 25, 2015, came and
went; and defendant’s term of probation expired with-
out the circuit court either discharging defendant from
probation or extending his probation. On September 23,
2015, defendant’s probation officer filed a Petition for
Amendment of Order of Probation, which requested
that defendant’s term of probation be “extended” until
June 25, 2016, “to allow for the time he was on warrant
status as well [as] time to pay his Court ordered fines
and fees.” The circuit court—without notice or a hearing
—granted the petition and “extended” defendant’s pro-
bation, setting a new expiration date of June 25, 2016.
The record is unclear whether defendant continued to
comply with the terms of his probation, or whether he
was asked to comply with the terms of his probation,
following its expiration on June 25, 2015, until its
“extension” on September 23, 2015. On November 12,
2015, however, defendant’s probation officer sought
to have him arrested for failing a drug screen. On
December 3, 2015, another arrest warrant indicated
defendant had “stopped” reporting to the probation
396 505 MICH 391 [July
OPINION OF THE COURT

office on a weekly basis, though the order did not

indicate when he stopped. On December 4, 2015,
probation officers conducted a compliance check of
defendant’s home and found heroin, which defendant
admitted belonged to him. Defendant was not ar-
rested that day, but was arrested on December 30,
2015, when a deputy responded to a tip regarding his
location and warrant status. At the time of his arrest,
defendant was again found in possession of heroin,
and he was charged with two heroin offenses as well
as violating probation.
Defendant moved to suppress the evidence produced
in the search, arguing that the December 4, 2015
compliance check was not authorized because the cir-
cuit court lacked the authority to extend his probation
after it had expired. The circuit court denied the
motion, and defendant pleaded no contest to one
charge of possession of less than 25 grams of heroin,
second offense, and to the probation-violation charge.
Defendant was sentenced to concurrent prison terms of
18 months to 8 years for the heroin conviction and 459
days for the probation-violation conviction.
The Court of Appeals granted defendant’s applica-
tion for leave to appeal but affirmed his convictions in
a split decision. People v Vanderpool, 325 Mich App
493; 925 NW2d 914 (2018). Defendant sought leave to
appeal here, and this Court scheduled oral argument
on the application, directing the parties to address
whether the circuit court had jurisdiction to extend
defendant’s probationary term on September 23, 2015,
and whether the extension of the probationary term
without notice and a hearing violated defendant’s
due-process rights. People v Vanderpool, 504 Mich 872,
872 (2019).
2020] PEOPLE V VANDERPOOL 397
OPINION OF THE COURT
II. STANDARD OF REVIEW

This Court reviews de novo questions of both statu-

tory interpretation, People v Carter, 503 Mich 221, 226;
931 NW2d 566 (2019), and constitutional law, People v
Hammerlund, 504 Mich 442, 451; 939 NW2d 129 (2019).

III. ANALYSIS

Several statutory provisions are relevant to our

analysis in this case. MCL 771.2(1) limits the proba-
tionary period for a felony to five years.1 MCL 771.2(5)
requires the sentencing court to set the period and
conditions of probation and allows the court to amend
the order of probation “at any time”:
The court shall, by order to be entered in the case as the
court directs by general rule or in each case, fix and
determine the period and conditions of probation. The
order is part of the record in the case. The court may
amend the order in form or substance at any time. If the
court reduces a defendant’s probationary term under
subsection (2), the period by which that term was reduced
must be reported to the department of corrections.

The court can revoke probation “during the probation

period.” MCL 771.4. The end of the probationary period
and the probation officer’s duties at that time are
directed by MCL 771.5(1):

1
Even under the prosecution’s reading of the statute, defendant
would have been discharged June 23, 2018. If the only relief defendant
sought were discharge from probation, this case might be in danger of
being rendered moot by the passage of time. However, defendant also
seeks to have his convictions vacated, arguing that they flowed from
evidence that was improperly obtained during the compliance check.
Further, even regarding discharge from probation, the relatively short
timelines involved in probation cases compared with the often sluggish
pace of the appellate process might make this situation one that is
capable of repetition, yet evading review. See People v Kaczmarek, 464
Mich 478, 481; 628 NW2d 484 (2001).
398 505 MICH 391 [July
OPINION OF THE COURT

When the probation period terminates, the probation

officer shall report that fact and the probationer’s conduct
during the probation period to the court. Upon receiving
the report, the court may discharge the probationer from
further supervision and enter a judgment of suspended
sentence or extend the probation period as the circum-
stances require, so long as the maximum probation period
is not exceeded.

Finally, MCL 771.6 requires a record of discharge.

When interpreting a statute, a court’s duty is to
“discern the legislative intent that may reasonably be
inferred from the words expressed in the statute by
according those words their plain and ordinary mean-
ing.” Sotelo v Grant Twp, 470 Mich 95, 100; 680 NW2d
381 (2004). Statutory words and phrases are to be
“understood according to the common and approved
usage of the language,” except when a “peculiar” legal
meaning has attached. MCL 8.3a. The common mean-
ing of statutory words and phrases takes into account
the context in which the words are used. Krohn v
Home-Owners Ins Co, 490 Mich 145, 156; 802 NW2d
281 (2011). In giving meaning to the statute, “we
examine the provision[s] within the overall context of
the statute ‘so as to produce, if possible, a harmonious
and consistent enactment as a whole.’ ” People v
Cunningham, 496 Mich 145, 153-154; 852 NW2d 118
(2014), quoting Grand Rapids v Crocker, 219 Mich 178,
182-183; 189 NW 221 (1922). Statutory provisions
“cannot be read in isolation, but instead must be read
reasonably and in context.” Cunningham, 496 Mich at
154. Reading various probation statutes together, we
conclude that after June 25, 2015, when defendant’s
probationary period expired, the circuit court had
neither the authority to “extend” defendant’s proba-
tionary period under MCL 771.5(1) nor to “amend” the
probationary period under MCL 771.2(5).
2020] PEOPLE V VANDERPOOL 399
OPINION OF THE COURT

The circuit court fixed defendant’s probationary pe-

riod, as required by MCL 771.2(1), at two years on
June 25, 2013. That two-year period ended on June 25,
2015. On or before that date, the probation officer was
required to report the termination of the probationary
period to the circuit court and report on defendant’s
conduct during the probationary period. MCL 771.5(1).
Upon receiving that report, the circuit court would
have had the choice of discharging defendant or ex-
tending the probationary period. Id. However, defen-
dant’s probation officer did not notify the circuit court
or report on defendant’s conduct on or before June 25,
2015. Defendant’s period of probation therefore termi-
nated on that date.
When defendant’s probation officer sought to “ex-
tend” defendant’s probationary period on Septem-
ber 23, 2015, there was no statutory authority to do so
because the period had already “terminate[d],”
MCL 771.5(1), or “expir[ed],” MCL 771.6. “Terminate”
means “to form an ending” and “to come to an end in
time.” Merriam-Webster’s Collegiate Dictionary (11th
ed). “Expire” means “to come to an end.” Id. The most
relevant definition of “extend” is “to cause to be lon-
ger[;] prolong.” Id. The order of probation was signed
on June 25, 2013, and set a two-year term of probation.
By its own terms, the order of probation ended the
period of probation on June 25, 2015. A probationary
period that has terminated is over. And therefore,
logically, once a period has terminated, it cannot be
made longer (extended).
Additionally, the circuit court’s authority to “extend”
the probationary period is conditioned “[u]pon receiv-
ing the report” of the probation officer, which must be
provided to the court “[w]hen the probation period
terminates.” MCL 771.5(1). The phrase “[w]hen the
400 505 MICH 391 [July
OPINION OF THE COURT

probation period terminates” is unambiguous. “When”

means “at or during the time that.” Merriam-Webster’s
Collegiate Dictionary (11th ed). The circuit court’s
attempt to extend the probationary period several
months after the probation period terminated does not
align with the statutory phrase “when the probation
period terminates.”
Neither could the circuit court “amend” the order of
probation to extend the probationary period under
MCL 771.2(5). MCL 771.2(5) allows a sentencing court
to amend an order of probation “in form or substance,”
including the term of probation, “at any time.” That is,
at any time while defendant was under the order of
probation, the court could have extended the term of
probation by amendment. But, just as the court could
not “extend” an order that had expired, neither could
the court “amend” an order that had expired.
The Court of Appeals came to the opposite conclu-
sion, noting the textual differences between
MCL 771.2(5) and MCL 771.4 and reasoning that we
addressed “the exact issue now before this Court, albeit
under the prior version of the probation statute” in our
opinion in People v Marks, 340 Mich 495; 65 NW2d 698
(1954). Vanderpool, 325 Mich App at 497-499 (opinion
by CAMERON, P.J.). See also id. at 501 (O’CONNELL, J.,
concurring). The Court’s reliance on Marks was mis-
placed for two reasons. Marks’s treatment of whether a
sentencing court has statutory authority to extend a
term of probation after the term has expired failed to
account for the entire statutory scheme. And Marks’s
treatment of the due-process question relied on general
principles that do not require a particular outcome in
this case.
In Marks, the Court considered whether the sen-
tencing court had “jurisdiction and authority to extend
2020] PEOPLE V VANDERPOOL 401
OPINION OF THE COURT

the probation period for an additional 2 years and alter

the original terms of probation to include restitution
after the original period of probation had expired[.]”
Marks, 340 Mich at 498. Marks quoted the statutory
predecessors of MCL 771.2 and MCL 771.3. Id. at
498-499. The predecessor of MCL 771.2 was similar to
the current statutory text, and the quoted portion of
the MCL 771.3 predecessor discussed a sentencing
court’s authority to impose restitution as a term of
probation. Marks, 340 Mich at 498-499. Without fur-
ther discussion of either section, and without any
discussion of the then-existing version of MCL 771.5,
which set forth the same requirements as the current
version, Marks held that a defendant is not denied due
process when restitution is imposed as a condition of
probation without a hearing. Id. at 499, citing People v
Good, 287 Mich 110; 282 NW 920 (1938). Marks did not
explain how the predecessor of MCL 771.2, which
provided that an order of probation “shall be at all
times alterable and amendable, both in form and in
substance, in the court’s discretion,” meant that
a probation order that has expired could be amended.
Nor did the court address the interplay with
MCL 771.5. Neither Marks’s unexamined reference to
MCL 771.2 nor its reliance on Good’s due-process
holding controls this case.
Lastly, Marks quoted at length from Burns v United
States, 287 US 216; 53 S Ct 154; 77 L Ed 266 (1932).
See Marks, 340 Mich at 500-501. The defendant in
Burns, a federal probationer, had his probation re-
voked during the first year of a five-year probationary
term, and Burns addressed what procedure was re-
quired in order to successfully terminate the proba-
tionary period. Burns, 287 US at 217-219, 222-223. So,
Burns addressed probation revocation occurring dur-
ing the period of probation. Marks’s discussion of
402 505 MICH 391 [July
OPINION OF THE COURT

Burns also addressed what constitutional procedures,

like notice, are required to extend probation; those
constitutional issues are irrelevant here. Conse-
quently, there is no holding from Burns that dictates a
result here—where probation has been extended after
the probationary term has expired.2
Judge CAMERON reasoned that it was “important” that
the circuit court “had not entered an order discharging
Vanderpool from probation pursuant to MCL 771.6,” but
he did not elaborate. Vanderpool, 325 Mich App at 499
(opinion by CAMERON, P.J.). We cannot see why an
expired order of probation can be extended before a
defendant’s discharge is recorded but not after. Defen-
dant was indeed entitled to have his discharge recorded
as detailed in MCL 771.6, but the circuit court’s failure
to carry out its duty to do so did not expand its authority
to extend defendant’s term of probation.
The prosecution takes this further, arguing that de-
fendant was not discharged. This is incorrect. Defen-
dant was discharged from probation when the period of
probation ended. MCL 771.6. “Discharge” means “to
relieve of a charge, load, or burden[;] . . . to release from
an obligation.” Merriam-Webster’s Collegiate Dictionary
(11th ed). The order of probation set the end of the
defendant’s obligations on June 25, 2015. On that day,

2
Furthermore, the due-process analysis in Marks is dubious given that
the United States Supreme Court has rejected the rights-privilege dis-
tinction that previously dominated legal thinking. See, e.g.,
Morrissey v Brewer, 408 US 471, 481; 92 S Ct 2593; 33 L Ed 2d 484 (1972)
(“[T]his Court now has rejected the concept that constitutional rights turn
upon whether a governmental benefit is characterized as a ‘right’ or as a
‘privilege.’ ”). See also Gagnon v Scarpelli, 411 US 778, 782, n 4; 93 S Ct
1756; 36 L Ed 2d 656 (1973) (“It is clear . . . that a probationer can no
longer be denied due process, in reliance on the dictum . . . that probation
is an ‘act of grace.’ ”). But given our disposition of this matter on statutory
grounds, we do not reach the due-process argument.
2020] PEOPLE V VANDERPOOL 403
OPINION OF THE COURT

defendant was relieved of his charge to comply with the

terms of probation, and he was therefore discharged.
The circuit court’s failure to carry out its obligation to
record this event and provide defendant with documen-
tation as required by statute does not result in defen-
dant having to comply with the expired order.
The prosecution elaborated at oral argument that the
end of the term of probation is nothing more than a
“control date” or “review date” and probation continues
unabated until a defendant’s discharge from probation
is recorded or a defendant has served the five-year
statutory maximum. Although a defendant might ex-
pect his or her term of probation to conclude on the last
day of the term as described by the order of probation,
the prosecution represents that in practice, probation
officers often inform defendants to the contrary. But this
understanding of the probation end date essentially
converts every term of probation to a five-year term.
This reading conflicts with the plain meaning of the
statute in that an order of probation that has expired
cannot be amended, as described above. This reading
also fails to produce a “harmonious and consistent
enactment as a whole,” Cunningham, 496 Mich
at 153-154, because the careful description in
MCL 771.5(1) of how a probation period should end in
either extension or discharge would be little more than
a misleading suggestion that probation officers and
sentencing courts would be free to ignore. Why require
the trial court to fix an initial period of probation if the
court can change the terms and length of probation at
any time within the five-year maximum; that is, even
after that initial fixed period has expired?
The prosecution does not offer any statutory support
for the idea that the end of a term of probation is
merely a “control date” without independent effect. To
404 505 MICH 391 [July
OPINION OF THE COURT

the contrary, MCL 771.2(5) requires the sentencing

court to “fix and determine the period and conditions of
probation,” while MCL 771.2(1) sets an upper limit for
felony probationary terms, requiring that “the proba-
tion period shall not exceed 5 years.” If every term of
probation were five years, then there would be no period
for the sentencing court to “fix and determine.” If the
period that the sentencing court fixed and determined
ended with a mere “control date,” then the period being
determined would not be the “period . . . of probation”
because the period of probation would be anything up to
five years. Additionally, if the prosecution were correct
that defendants remain on probation until discharge is
recorded without regard to the expiration of the period
of probation, it is not clear why the period of probation
would even need to be extended.
The prosecution is correct that sentencing courts
have wide discretion in setting terms of probation. See
MCL 771.3(2) and (3). Nothing in our holding con-
strains courts from exercising that discretion when
setting the period and conditions of probation. And
courts also have the authority to extend the period of
probation through amendment under MCL 771.2(5) or
at the termination of the period of probation under
MCL 771.5(1). They simply do not have the authority
to extend a probation period that is already over.
The dissent largely focuses on MCL 771.2(5), which
states that a sentencing court “may amend the order in
form or substance at any time.” The dissent points out
that, in contrast, the revocation procedure in MCL 771.4
limits a sentencing court’s power to a time “during the
probation period.” And given that MCL 771.4 includes
an explicit temporal limitation but MCL 771.2(5) lacks
such a limitation, so the argument goes, the court must
retain the power to amend the terms of probation at any
2020] PEOPLE V VANDERPOOL 405
OPINION OF THE COURT

time, even after the expiration of the probation period.

The only limitation the dissent sees in the sentencing
court’s power to amend an order of probation is the
“statutory maximum period of five years.”
The absence of a temporal limitation in MCL 771.2(5)
combined with the presence of a temporal limitation in
MCL 771.4 is a textual clue relevant to this discussion,
to be sure. But that textual clue must be weighed in
light of the other textual evidence that supports our
interpretation. Scalia & Garner, Reading Law: The
Interpretation of Legal Texts (St. Paul: Thomson/West,
2012), p 59 (“The skill of sound construction lies in
assessing the clarity and weight of each clue and decid-
ing where the balance lies.”). The language “at any
time” in MCL 771.2(5) indicates that the sentencing
court has broad power to amend the order of probation.
But that power, in light of the statute as a whole, as we
discussed earlier, is limited to when the order is opera-
tive.
The dissent argues, like the prosecution does, that
the order of probation remains operative after it has
expired because the court has not entered an order of
discharge under MCL 771.6. The dissent does not ex-
plicitly adopt the prosecution’s description of the expi-
ration of the order of probation as a mere “control date,”
but the logic is the same. In the dissent’s view, so long as
the statutory maximum period has not yet been met
when the order of probation expires, nothing happens.
However, this reading of the statute fails to ad-
equately address the language of MCL 771.6, which
states that “[w]hen a probationer is discharged upon
the expiration of the probation period, or upon its
earlier termination by order of the court, entry of the
discharge shall be made in the records of the court, and
the probationer shall be entitled to a certified copy
406 505 MICH 391 [July
OPINION OF THE COURT

thereof.” MCL 771.6 recognizes that while a court may

terminate probation before the expiration of the pro-
bation period, and conversely, that a court may also
extend probation before the expiration of the probation
period, a probationer is simply discharged from proba-
tion upon the expiration of the probation period. No-
where in the language of MCL 771.6 is there a require-
ment that a court act to discharge a probationer upon
the termination of the original probation period set by
the original probation order; a court need only act in
order to amend that probation order, which otherwise
expires according to its original terms if there is no
timely intervention.
This reading of MCL 771.6 is not hostile to the
language found in MCL 771.5(1). As even the dissent
recognizes, “when” may be defined in context to refer to
“at or during the time that” or “upon or after which.”
Given the plain language of MCL 771.6, it is the first
definition of “when” that allows for the most cohesive
reading of both MCL 771.5(1) and MCL 771.6.
MCL 771.6 dictates that a probationer is discharged
from probation upon the expiration of the original
probation period, absent earlier intervention by a court
to modify the original probation order. MCL 771.5(1)
merely acknowledges the reality that a probation officer
must prepare a report concerning a probationer’s con-
duct and submit it to the court, which relies on that
report to make a decision as to whether to amend the
order before a probationer is discharged upon the expi-
ration of the probation period. In other words, the
phrase “so long as the maximum probation period is not
exceeded” in MCL 771.5(1) modifies the extent to which
a court may extend a probation period if it moves to
amend the probation order in a timely manner. But
MCL 771.6 restricts a court’s ability to amend an order
2020] PEOPLE V VANDERPOOL 407
OPINION OF THE COURT

to the time before a probationer is automatically dis-

charged upon the expiration of the probation period.3
Although the dissent argues that the original order
of probation could not have expired because defendant
failed to fulfill some of his obligations under the order,
a probationer’s discharge from probation does not
eliminate all obligations that were previously incurred.
Similarly to child-support orders that often expire
upon a child reaching the age of majority, the expira-
tion of such an order merely reflects the lack of future
obligations but does not impact outstanding obliga-
tions that were incurred while the order was in effect.
Further, we reject the idea that a defendant should
ignore the face of the order of probation, which speci-
fies a fixed term. The idea that nothing happens when
an order of probation expires conflicts with our direc-
tion that an order of probation “must be sufficiently
clear to enable the probationer to know what he is
required to do in order to comply with it,” People v
Sutton, 322 Mich 104, 109; 33 NW2d 681 (1948), and
“specify the period during which it is to continue,”
Hill v Hill, 322 Mich 98, 103; 33 NW2d 678 (1948).
The dissent worries our reading of the statute would
be “very difficult, if not impossible, to accomplish in
practice.” The dissent notes that a probation officer’s
report must describe the conduct during the probation-
ary period, and that must “necessarily include the
moments leading right up to termination.” So, in the

3
The dissent argues that our reading of the statute “strips the trial
court of [its] important duty” to discharge defendants. We disagree. Here,
the sentencing court retained its authority to amend the order of
probation for the entire period it specified in its own order. The sentencing
court did fail to carry out the evaluation required by MCL 771.5 “[w]hen
the probation period terminate[d],” and in doing so allowed the period to
expire. The sentencing court stripped itself of its duty by failing to
address defendant until months after his probationary period expired.
408 505 MICH 391 [July
OPINION OF THE COURT

dissent’s view, the probation officer would wait until

the last day of the probationary period to write the
report, then submit the report to the sentencing court,
which would consider it at some later date past the
expiration of the probationary period. We have every
confidence that sentencing courts can navigate this
responsibility.4
In practice, probation officers already perform a very
similar, if not more burdensome, function in preparing
presentence investigation reports for sentencings.
While all that is required by MCL 771.5(1) is to gener-
ally report the termination of probation and “the proba-
tioner’s conduct during the probation period,”
these same probation agents comply with much more
stringent statutory requirements in preparation for
sentencing. In addition to a host of specific information
that might be compiled ahead of sentencing,5
MCL 771.14 requires an inquiry into “the antecedents,
character, and circumstances of the person,”
MCL 771.14(1), as well as “[a]n evaluation of and a
prognosis for the person’s adjustment in the community
based on factual information contained in the report,”
MCL 771.14(2)(a). In practice, this includes a defen-
dant’s conduct while awaiting sentencing and events
that transpire between completion of the report and
sentencing, which are offered orally to the court. Proba-
tion officers can and do comply with statutory dead-
lines.6 Even supposing the dissent’s analysis were cor-

4
Furthermore, Michigan’s manual for probation officers already
instructs them to “review the probationer’s file in a timely fashion.”
See SCAO, Manual for District Court Probation Officers (Dec 2019),
§ 7-08(B), p 154, available at <https://courts.michigan.gov/
administration/SCAO/Resources/Documents/Publications/Manuals/prbofc
/prb.pdf> (accessed May 19, 2020).
5
See MCL 771.14(2)(a) through (h).
6
At any rate, the dissent’s solution of extending the probationary
period does not solve the problem the dissent imagines. In the dissent’s
2020] PEOPLE V VANDERPOOL 409
OPINION OF THE COURT

rect, there would still be a lot of blanks to fill in. If a

probationer’s responsibility to comply with the terms of
probation did not end when the order of probation
indicated it would, it would not be clear how the
probationer would know when his or her responsibili-
ties ended. If a probationer’s term of probation contin-
ued past its expiration, and the sentencing court was
not required to comply with the procedure in MCL
771.5 at that time, it would not be clear how long the
sentencing court could wait to make a decision. If the
only limitation on the court’s power to amend an order
of probation was the statutory maximum term, it
would not be clear whether a sentencing court could
amend an order of probation even after entering an
order of discharge.
For these reasons, the trial court lacked authority to
extend defendant’s probation. Because defendant was
not on probation, officers had no authority to enter his
home and conduct a warrantless search under
the probation exception to the Fourth Amendment.
See Griffin v Wisconsin, 483 US 868; 107 S Ct 3164;
97 L Ed 2d 709 (1987); US Const, Am IV; Const 1963,
art 1, § 11.

IV. CONCLUSION

Because the trial court was without authority to

extend defendant’s probation, we reverse the judgment
of the Court of Appeals and remand the case to the
circuit court for further proceedings.

MCCORMACK, C.J., and BERNSTEIN and CLEMENT, JJ.,

concurred with CAVANAGH, J.
view, the probationary period would continue past the expiration of the
original term of probation until the sentencing court entered an order of
discharge. Probation officers would still have to report on the intervening
period.
410 505 MICH 391 [July
DISSENTING OPINION BY ZAHRA, J.

ZAHRA, J. (dissenting). I respectfully dissent. The

issues presented in this case are whether the trial court
was statutorily permitted to extend defendant’s proba-
tionary term after it expired but before defendant was
formally discharged, and if so, whether due process
entitled defendant to notice and a hearing before
the court did so. I agree with the Court of Appeals that
the trial court maintained jurisdiction to extend defen-
dant’s probationary term after its expiration, because
MCL 771.2(5) permits the amendment of a defendant’s
order of probation “in form or substance at any time.”1
This is in contrast to the revocation of probation, which
must take place during the specific “probation period”
imposed on a particular defendant pursuant to
MCL 771.4. In this case, while defendant’s original
term of probation had expired when the trial court
extended it, the trial court never discharged defendant
from probation, and the court’s one-year extension was
within the five-year statutory maximum period pre-
scribed by MCL 771.2(1). The trial court therefore
maintained jurisdiction to extend defendant’s proba-
tionary period after its expiration.
Defendant’s due-process rights were not violated by
this extension. A defendant is entitled to the due-
process protections of notice and a hearing before a
revocation of his or her probation. But this case does
not involve a revocation of probation. Instead, the trial
court merely extended the term of defendant’s proba-
tion. Probation is a noncustodial supervisory period far
less onerous to a probationer than the incarceration
that generally results from the revocation of probation.
The mere extension of probation does not constitute a
“grievous loss” of liberty entitling a defendant to the
due-process protections requested by defendant. For
these reasons, I would affirm the lower courts.

1
Emphasis added.
2020] PEOPLE V VANDERPOOL 411
DISSENTING OPINION BY ZAHRA, J.
I. BASIC FACTS AND PROCEEDINGS

On June 25, 2013, defendant was sentenced to two

years’ probation after pleading no contest to assaulting
a police officer, a felony.2 The terms of defendant’s
probation barred the use or possession of controlled
substances. Probation agents were also authorized to
conduct compliance checks and search defendant’s
property.
While on probation, defendant did not consistently
report to the probation department as directed and did
not pay his court-ordered fines and fees. Defendant’s
probation was due to expire on June 25, 2015, but the
trial court did not enter an order discharging him from
probation at that time. On September 23, 2015, defen-
dant’s probation agent filed a petition with the trial
court to extend defendant’s probation for one year “to
allow for the time [defendant] was on warrant status
as well [as] time to pay his Court ordered fines and
fees.” The trial court granted the petition and extended
defendant’s probation to June 25, 2016.
On November 12, 2015, defendant’s probation agent
petitioned the trial court for a bench warrant because
defendant tested positive for opiates. Defendant was
arrested for an unspecified offense on November 18,
2015. Notwithstanding the bench warrant issued for
drug use, defendant was again released on bond and
informed to report weekly to the probation office.
Defendant, however, stopped reporting to the proba-
tion office on a weekly basis. Another probation-
violation warrant was issued on December 3, 2015. On
December 4, 2015, probation agents conducted a com-
pliance check at defendant’s home and found heroin,
which defendant admitted belonged to him.

2
MCL 750.81d(1).
412 505 MICH 391 [July
DISSENTING OPINION BY ZAHRA, J.

Defendant asserts that the December 4, 2015 com-

pliance check led to his subsequent arrest, when he
was again found in possession of heroin. Defendant
was charged with intent to deliver less than 50 grams
of heroin, MCL 333.7401(2)(a)(iv), second or subse-
quent offense, MCL 333.7413(2), and with possession
with intent to deliver less than 25 grams of heroin,
MCL 333.7403(2)(a)(v), second or subsequent offense,
MCL 333.7413(2). Defendant was also charged with
violating probation.
Defendant moved to suppress the evidence and for
dismissal of the charges. He challenged the legality of
the December 4, 2015 compliance check, arguing that
he was not on probation at that time because the trial
court lacked the authority to extend his probationary
period beyond June 25, 2015. The trial court denied
defendant’s motion. Defendant thereafter pleaded no
contest to possession of less than 25 grams of heroin,
second or subsequent offense, and to the probation
violation. On September 29, 2016, the trial court sen-
tenced defendant to concurrent prison terms of 18
months to 8 years for the drug-possession conviction
and 459 days for the probation violation.
The Court of Appeals granted defendant’s applica-
tion for leave to appeal and affirmed defendant’s con-
victions in a split decision, with the majority relying on
People v Marks, 340 Mich 495; 65 NW2d 698 (1954), to
hold that “the trial court had jurisdiction to modify and
extend probation up to the statutory maximum term
even after [defendant’s] original probationary period
expired.”3 Defendant sought leave to appeal in this
Court, and in lieu of granting leave to appeal, we
ordered oral argument on the application, directing the

3
People v Vanderpool, 325 Mich App 493, 496-499; 925 NW2d 914
(2018).
2020] PEOPLE V VANDERPOOL 413
DISSENTING OPINION BY ZAHRA, J.

parties to file supplemental briefs addressing

(1) whether the trial court had jurisdiction to extend
defendant’s probationary term in September 2015 and
(2) whether the extension of the probationary term
without notice or a hearing violated defendant’s due-
process rights.4

II. STANDARD OF REVIEW

We review de novo constitutional issues and matters

of statutory interpretation.5

III. ANALYSIS6

A. THE STATUTORY SCHEME PERMITS A TRIAL COURT TO

EXTEND A TERM OF PROBATION AFTER ITS EXPIRATION

The question presented is whether a trial court

maintains jurisdiction to extend a defendant’s proba-

4
People v Vanderpool, 504 Mich 872 (2019).
5
People v Harris, 499 Mich 332, 342; 885 NW2d 832 (2016).
6
As an initial matter, I question whether the issues presented are
properly preserved. It appears that defendant did not raise a due-
process argument in the Court of Appeals. In his application to that
court, defendant’s question presented asked only whether he was
entitled to resentencing because “Tuscola County authorities delayed in
petitioning for an amendment of probation from June 2015 through
September of 2015.” “The failure to raise a question in the lower court
precludes the Supreme Court considering it on appeal.” Young v Morrall,
359 Mich 180, 187; 101 NW2d 358 (1960). In his application to this
Court, defendant, perhaps inspired by the Court of Appeals dissent,
presented only the question of whether the Due Process Clause “re-
quire[s] that a probationer be given notice and an opportunity to be
heard on a probation officer’s petition to extend probation[.]” Defendant
did not present to this Court the question of whether the trial court
maintained jurisdiction to extend his probationary term after its expi-
ration. Thus, both issues posed by this Court’s order directing oral
argument are arguably unpreserved. But because this Court asked the
parties to address both issues, and because the majority resolves this
case on the merits, I will address the substantive issues in this dissent.
414 505 MICH 391 [July
DISSENTING OPINION BY ZAHRA, J.

tionary term after it has expired but before an order is

issued discharging the defendant from probation. This
question is answered by the interpretation of several
statutes that are relevant to this inquiry. MCL 771.2(1)
provides that a probation period for a felony conviction
“shall not exceed five years.”7 MCL 771.2(5) provides
that the trial court may amend an order of probation
“at any time”:
The court shall, by order to be entered in the case as the
court directs by general rule or in each case, fix and
determine the period and conditions of probation. The
order is part of the record in the case. The court may
amend the order in form or substance at any time. If the
court reduces a defendant’s probationary term under
subsection (2), the period by which that term was reduced
must be reported to the department of corrections.[8]

MCL 771.4, pertaining to the revocation of proba-

tion, provides:
It is the intent of the legislature that the granting of
probation is a matter of grace conferring no vested right to
its continuance. If during the probation period the sen-
tencing court determines that the probationer is likely
again to engage in an offensive or criminal course of
conduct or that the public good requires revocation of
probation, the court may revoke probation. All probation
orders are revocable in any manner the court that imposed
probation considers applicable either for a violation or
attempted violation of a probation condition or for any
other type of antisocial conduct or action on the probation-
er’s part for which the court determines that revocation is
proper in the public interest. Hearings on the revocation
shall be summary and informal and not subject to the

7
Defendant’s original conviction for assaulting a police officer is a
felony for purposes of both the Penal Code and the Code of Criminal
Procedure. MCL 750.81d(1); MCL 761.1(f).
8
Emphasis added.
2020] PEOPLE V VANDERPOOL 415
DISSENTING OPINION BY ZAHRA, J.

rules of evidence or of pleadings applicable in criminal

trials. In its probation order or by general rule, the court
may provide for the apprehension, detention, and confine-
ment of a probationer accused of violating a probation
condition or conduct inconsistent with the public good.
The method of hearing and presentation of charges are
within the court’s discretion, except that the probationer
is entitled to a written copy of the charges constituting the
claim that he or she violated probation and to a probation
revocation hearing. The court may investigate and enter a
disposition of the probationer as the court determines best
serves the public interest. If a probation order is revoked,
the court may sentence the probationer in the same
manner and to the same penalty as the court might have
done if the probation order had never been made. . . .[9]

MCL 771.5(1) governs the procedure to be followed

upon the termination of a probationer’s period of
probation. It provides:
When the probation period terminates, the probation
officer shall report that fact and the probationer’s conduct
during the probation period to the court. Upon receiving
the report, the court may discharge the probationer from
further supervision and enter a judgment of suspended
sentence or extend the probation period as the circum-
stances require, so long as the maximum probation period
is not exceeded.[10]

Finally, MCL 771.6, which requires a record of

discharge, provides:
When a probationer is discharged upon the expiration
of the probation period, or upon its earlier termination by
order of the court, entry of the discharge shall be made in
the records of the court, and the probationer shall be
entitled to a certified copy thereof.

9
Emphasis added.
10
MCL 771.5(1).
416 505 MICH 391 [July
DISSENTING OPINION BY ZAHRA, J.

Reading these statutes as reasonably as possible,

harmoniously, and in their entirety,11 I agree with the
Court of Appeals that the trial court possessed the
authority to extend defendant’s originally imposed
probationary period after its stated date of expiration.
The language of MCL 771.2(5) pertaining to the
amendment of probation orders differs significantly
from that of MCL 771.4 pertaining to the revocation of
probation. MCL 771.2(5) states that the “court may
amend the [probation] order in form or substance at any
time.” This broad language, permitting amendment “at
any time,” is in contrast to the language of MCL 771.4,
which requires that a revocation proceeding commence
during the “probation period.”12 The reference in
MCL 771.4 to a defendant’s “probation period” is ab-
sent from MCL 771.2(5), an omission that we must
consider intentional, especially when coupled with the
Legislature’s specific use of the broader “at any time”
language in MCL 771.2(5).13 Thus, we must assume
that the Legislature intentionally declined to impose in
MCL 771.2(5) the temporal limitation referred to in
MCL 771.4. Accordingly, the Court of Appeals correctly
held that a trial court is not confined to the terms of the

11
People v Cunningham, 496 Mich 145, 153-154; 852 NW2d 118
(2014), quoting Grand Rapids v Crocker, 219 Mich 178, 182-183; 189
NW 221 (1922) (“[W]e examine the provision[s] within the overall
context of the statute ‘so as to produce, if possible, a harmonious and
consistent enactment as a whole.’ ”).
12
The “probation period” for purposes of MCL 771.4 “refers to the
specific probation term that the sentencing court has imposed on a
particular defendant,” not the statutory maximum term of probation.
People v Glass, 288 Mich App 399, 405; 794 NW2d 49 (2010).
13
See Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d
76 (1993) (“Courts cannot assume that the Legislature inadvertently
omitted from one statute the language that it placed in another statute,
and then, on the basis of that assumption, apply what is not there.”).
2020] PEOPLE V VANDERPOOL 417
DISSENTING OPINION BY ZAHRA, J.

“probation period” when amending probation, which

includes the extension of probation. Instead, as plainly
stated in MCL 771.2(5), a trial court has the authority
to amend probation “at any time” within the statutory
maximum period of five years, even after the expira-
tion of the originally imposed period of probation.
In concluding to the contrary, the majority relies
heavily on the requirement in MCL 771.5(1) that
“[w]hen the probation period terminates, the probation
officer shall report that fact and the probationer’s con-
duct during the probation period to the court.” The
majority takes this reporting requirement and engrafts
onto it a temporal requirement not expressly found in
the statute. Specifically, the majority reads this statute
to mean that if the probation officer does not provide the
required report to the trial court before or at the very
moment that a probation period expires, the trial court
loses jurisdiction over the probationer to extend the
probation period since it has already “terminated” or
come to an end. The majority’s myopic reading of the
law is flawed. Not only would it be odd for a probation
officer’s inaction to strip a court of jurisdiction, but this
interpretation is unworkable in practice and contrary to
the plain language of the statute.
MCL 771.5(1) does not require that the probation
officer furnish his or her report to the court before or at
the very second a probation period expires. To the
contrary, MCL 771.5(1) anticipates an extension of pro-
bation after the expiration of a defendant’s period of
probation. The first sentence of MCL 771.5(1) says that
“[w]hen the probation period terminates, the probation
officer shall report,” and the second sentence says that
“[u]pon receiving the report,” the court may discharge
the probationer from further supervision or extend the
probation period. This language makes clear the legis-
418 505 MICH 391 [July
DISSENTING OPINION BY ZAHRA, J.

lative understanding that there is going to be some

passage of time between these two events—the termi-
nation of the probation period and the court’s receipt of
the probation officer’s report. The statute is written in a
manner that contemplates a sequence of events: (1) the
termination of the probation period, (2) the preparation
of a report by the probation officer, (3) the presentation
of this report to the court, and (4) the court’s discharge
of the probationer from further supervision or the ex-
tension of the probation period. This sequence clearly
envisions that a court’s jurisdiction extends past the
expiration of the defendant’s originally imposed period
of probation.14
Additionally, the majority’s reading of MCL 771.5(1)
would be very difficult, if not impossible, to accomplish
in practice. The required report must indicate that the
defendant’s probation period has terminated, which a

14
The majority’s reliance on the definition of “when” as “ ‘at or during
the time that’ ” is not particularly helpful given that “when” can also be
defined in a manner favorable to the dissent. (Citation omitted.) Indeed,
one of the definitions of “when” is “upon or after which; and then.”
Random House Webster’s College Dictionary (1992). In other words, it is
completely reasonable to interpret the language “when the probation
period terminates” to mean “after the probation period terminates” the
probation officer must provide the court with a report and then, once the
court receives the report, the court can either discharge the defendant
from probation or extend probation.
The majority relies on dictionary definitions of the terms “terminate”
and “expire” to conclude that defendant’s term of probation came to an
“end.” But I see no reason why a period that has come to an end cannot
later be extended. And, as discussed later in this opinion, I do not believe
that the mere passage of time can permanently “terminate” a probation
period and result in the automatic discharge of a defendant from
probation. Indeed, had the Legislature intended an automatic discharge
to enter, it would not have afforded the sentencing court the opportunity
to take other action. Recall that MCL 771.5(1) permits the sentencing
court to either “discharge the probationer from further supervision and
enter a judgment of suspended sentence or extend the probation period
as the circumstances require.” (Emphasis added.)
2020] PEOPLE V VANDERPOOL 419
DISSENTING OPINION BY ZAHRA, J.

probation officer cannot indicate until after the proba-

tion period has actually terminated. The report must
also describe the probationer’s conduct during the
probation period, which would necessarily include the
moments leading right up to termination. If the proba-
tioner violates a condition of probation moments before
the period of probation terminates, the probation offi-
cer would have to include a description of this conduct
in his or her report. Simply put, this is an impossible
task to impose on a rapidly moving, high-volume trial
court. A trial court with dozens, if not hundreds of
probationers cannot be expected to accept a report at
the very moment that the probationer’s probation
period terminates. For these reasons, I find the major-
ity’s reliance on MCL 771.5 to be unpersuasive.
Relatedly, I disagree with the majority’s understand-
ing of an order of “discharge” as contemplated by the
statutory scheme. The majority, relying on a dictionary
defining “discharge” to mean “ ‘to relieve of a charge,
load, or burden[;] . . . to release from an obligation,’ ”
concludes that “[d]efendant was discharged from proba-
tion when the period of probation ended.”15 But the
mere expiration of a probation period does not auto-
matically discharge a defendant from probation. If this
were the case, there would be no reason for MCL 771.5
to require “the court” to “discharge the probationer
from further supervision” “[u]pon receiving the re-
port.”16 The statute clearly contemplates that it is the
court that must take the affirmative act of discharging
a defendant from probation. The majority also opines
that the “circuit court’s failure to carry out its obliga-
tion to record this event [the discharge] and provide
defendant with documentation as required by statute

15
Citation omitted.
16
Emphasis added.
420 505 MICH 391 [July
DISSENTING OPINION BY ZAHRA, J.

does not result in defendant having to comply with the

expired order.”17 But the issuance of an order discharg-
ing a defendant from probation is not the ministerial
task that the majority makes it out to be. Instead,
MCL 771.5 requires the trial court to exercise its
discretion in determining whether discharge is appro-
priate after receiving the report from the probation
officer detailing the probationer’s conduct on proba-
tion.18 The majority’s conclusion that the mere passage
of time results in a “discharge” strips the trial court of
this important duty.19

17
This case does not present to us the question of whether a defendant
must comply with the conditions of probation imposed in his or her
original order of probation during the period after the expiration of that
order and before its extension. The search that defendant claims was
unlawful was conducted while defendant was subject to the conditions
imposed after his probationary period was extended. Therefore, the only
question at issue is whether the trial court was permitted to extend
defendant’s probationary period after its expiration.
18
It is because of this directive in MCL 771.5 that I am not persuaded
by the majority’s reliance on MCL 771.6. MCL 771.6 simply requires that
a record be made of a discharge. It does not purport to set forth the
discharge procedure, but instead provides the procedure governing what
shall happen after there has been a discharge: “entry of the discharge
shall be made in the records of the court, and the probationer shall be
entitled to a certified copy thereof.” In contrast, MCL 771.5 provides
instructions as to the discharge process itself and explicitly indicates that
it is the court that must either extend the probation period or “discharge
the probationer from further supervision.” The reporting requirement in
MCL 771.6 cannot trump the discharge instructions set forth in
MCL 771.5.
19
We must bear in mind that an important purpose of probation is to
rehabilitate a defendant. See People v Miller, 182 Mich App 711, 713; 452
NW2d 890 (1990) (courts may impose conditions of probation under
MCL 771.3(4) so long as there is a rational relationship between the
restriction and rehabilitation). MCL 771.2(5) gives trial courts broad
discretion to amend and modify probation orders as needed in further-
ance of this rehabilitation effort. Automatically releasing a probationer
from probation without the probation officer or trial court examining a
probationer’s performance while on probation undermines the effort to
ensure that he or she has been rehabilitated.
2020] PEOPLE V VANDERPOOL 421
DISSENTING OPINION BY ZAHRA, J.

It is also ironic that the majority “reject[s] the idea

that a defendant should ignore the face of the order of
probation,” when defendant did just this by failing to
comply with the explicit terms of his probation. It is
undisputed that defendant failed to consistently report
to the probation department, and significantly, he did
not pay the fines and fees required by his order of
probation. I am hard-pressed to conclude that defen-
dant would reasonably expect to be automatically
discharged from a period of probation that he did not
successfully complete. The majority is correct that
courts speak through written orders. But defendant’s
order of probation did not state that his discharge from
probation would be automatic upon the expiration of
the originally imposed term. Moreover, the trial court
never “spoke” to defendant through an order of dis-
charge to inform him that he was released from his
probation obligations.20 Because MCL 771.2(1) makes
clear that a trial court maintains jurisdiction over an
individual convicted of a felony offense for up to five
years and given that defendant did not successfully
complete the terms of his probation, it should not have
come as a surprise to defendant that his order of
probation was subject to extension until he received an
order of discharge from the court.21

20
The majority asserts that it “cannot see why an expired order of
probation can be extended before a defendant’s discharge is recorded but
not after.” We are not tasked with considering in this case whether a
court may extend a term of probation after the court discharges a
defendant from probation. That is not what happened here. MCL 771.5
requires a trial court to either extend a term of probation or discharge a
defendant from probation. The trial court in this case never discharged
defendant from probation, so there is no question as to whether the
court surrendered its jurisdiction over defendant. It did not.
21
I disagree with the majority that this interpretation “essentially
converts every term of probation to a five-year term.” And I equally
disagree with the majority’s statement that “[i]f every term of probation
422 505 MICH 391 [July
DISSENTING OPINION BY ZAHRA, J.

In this case, while defendant’s original probationary

period had expired when the trial court extended it, the
one-year extension was within the five-year statutory
maximum period prescribed by MCL 771.2(1). The
trial court therefore maintained the authority to ex-
tend defendant’s probationary period after its expira-
tion. The compliance check at issue, which was con-
ducted after this extension of defendant’s probation
period, was lawful under the statutory scheme.22

B. DUE PROCESS DOES NOT REQUIRE ADDITIONAL NOTICE AND

AN OPPORTUNITY TO BE HEARD BEFORE THE EXTENSION
OF PROBATION

Given my conclusion that the statutory scheme

permitted the trial court to extend defendant’s proba-
were five years, then there would be no period for the sentencing court
to ‘fix and determine.’ ” A trial court is permitted to impose a five-year
term of probation for a felony from the outset pursuant to MCL 771.2(1),
but may impose a lesser term if it believes that this will be sufficient to
rehabilitate the defendant. The entire reason that MCL 771.2(5) per-
mits amendment of an order of probation “at any time” is because the
trial court needs flexibility to amend a defendant’s probationary terms
and conditions depending on the performance of the probationer. It may
very well be the case that the initial term “fixed and determined” by the
court will require no modification, but it might also be the case that a
defendant is noncompliant with the probationary terms, warranting an
extension or modification of the initially fixed and determined terms and
conditions. I do not share the majority’s apparent concern that permit-
ting a court to extend a probationary period after its expiration will
convert all terms of probation into five-year terms. If a trial court has
always possessed the authority to impose a five-year term of probation
from the outset, there is no reason to believe that a court will take
advantage of the ability to extend a probationary period after its
extension to convert every lesser term of probation into a five-year term.
22
My review of the statutory scheme leads to the same result that this
Court reached in Marks, 340 Mich 495. Although a different version of
MCL 771.2 was at issue in Marks, the language of the relevant statute
was substantially the same. In Marks, 4 months and 14 days after the
expiration of the original period of probation, the trial court extended
the defendant’s probation for a period of two years and added the
2020] PEOPLE V VANDERPOOL 423
DISSENTING OPINION BY ZAHRA, J.

tionary period after its expiration, I must address

whether due process required that defendant receive
notice and an opportunity to be heard before this
extension.
Both the United States Constitution and the Michi-
gan Constitution of 1963 dictate that no person may be
deprived of life, liberty, or property without due process
of law.23 In finding a due-process violation in this case,
the dissenting Court of Appeals judge relied on a
couple of cases from the United States Supreme
Court.24 In Morrissey v Brewer,25 the Supreme Court
concluded that the Due Process Clause of the Four-
teenth Amendment requires that a state afford an
individual some opportunity to be heard before revok-
ing his or her parole. In reaching this conclusion, the
Court “ ‘rejected the concept that constitutional rights
turn upon whether a governmental benefit is charac-
terized as a “right” or as a “privilege,” ’ ” and instead
clarified that “[w]hether any procedural protections
are due depends on the extent to which an individual
will be ‘condemned to suffer grievous loss.’ ”26 The
Court reasoned that the termination of parole “inflicts
condition of restitution. This Court held that “defendant’s rights were
not impinged by the alteration in the probation order made within the
statutory 5-year period, even though the conditions of the original order
had not been violated and its term had expired.” Id. at 501. As this Court
explained, “[t]he trial judge . . . was at liberty ‘at all times’ within the
5-year period to alter and amend the order ‘both in form and in
substance.’ ” Id. at 501-502. “The only limitation, and this applies to
both the grant and any modification of it, is that the total period of
probation shall not exceed 5 years.” Id. at 501.
23
US Const, Am XIV; Const 1963, art 1, § 17.
24
See Vanderpool, 325 Mich App at 503-506 (JANSEN, J., concurring in
part and dissenting in part).
25
Morrissey v Brewer, 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484
(1972).
26
Id. at 481 (citations omitted).
424 505 MICH 391 [July
DISSENTING OPINION BY ZAHRA, J.

a grievous loss” because while on parole a parolee is

able “to do a wide range of things open to persons who
have never been convicted of any crime,” but, “[i]n
many cases, the parolee faces lengthy incarceration if
his parole is revoked.”27 In determining what process
was due, the Court held that “[w]hat is needed is an
informal hearing structured to assure that the finding
of a parole violation will be based on verified facts and
that the exercise of discretion will be informed by an
accurate knowledge of the parolee’s behavior.”28 The
Court then explained the procedures that should apply,
including both a preliminary and a final revocation
hearing.29
In Gagnon v Scarpelli,30 the Supreme Court of the
United States held that the same due-process protec-
tions that apply to the revocation of parole apply to the
revocation of probation, noting that the “[p]etitioner
does not contend that there is any difference relevant
to the guarantee of due process between the revocation
of parole and the revocation of probation, nor do we
perceive one.”31
This precedent is meaningfully distinguishable from
the case at hand, as the loss of liberty that follows the
revocation of parole or probation is significantly differ-
ent than the substantially lesser constraint on liberty
imposed by the extension of a period of probation. Per
Morrissey, the pertinent inquiry is whether the exten-
sion of probation condemns a probationer to suffer

27
Id. at 482 (quotation marks omitted).
28
Id. at 484.
29
Id. at 484-489.
30
Gagnon v Scarpelli, 411 US 778, 782; 93 S Ct 1756; 36 L Ed 2d 656
(1973).
31
Id. at 782.
2020] PEOPLE V VANDERPOOL 425
DISSENTING OPINION BY ZAHRA, J.

“grievous loss” such that due process requires notice

and an opportunity to be heard. It does not. As the
Court explained in Morrissey, a parolee and a proba-
tioner are able “to do a wide range of things open to
persons who have never been convicted of any crime.”32
“Though the State properly subjects [a probationer] to
many restrictions not applicable to other citizens, his
condition is very different from that of confinement in
a prison.”33 Indeed, “the liberty of a parolee [and a
probationer] . . . includes many of the core values of
unqualified liberty . . . .”34 In sum, probation is a non-
custodial supervisory period far less onerous to the
probationer than the incarceration that generally re-
sults from the revocation of probation or parole. For
this reason, the extension of probation does not result
in the type of “grievous loss” caused by the revocation
of parole or probation. Consequently, while the exten-
sion of probation restricts one’s liberty to a certain
extent, it does not constitute a “grievous loss” entitling
a defendant to additional due-process protections.
Federal courts that have addressed this issue have
likewise declined to apply Morrissey and Gagnon to the
extension of probation.35 I find the reasoning set forth

32
Morrissey, 408 US at 482.
33
Id.
34
Id.
35
See Skipworth v United States, 508 F2d 598, 601-602 (CA 3, 1975);
United States v Carey, 565 F2d 545, 547 (CA 8, 1977); United States v
Cornwell, 625 F2d 686, 688 (CA 5, 1980); Forgues v United States, 636
F2d 1125, 1127 (CA 6, 1980); United States v Silver, 83 F3d 289, 291-292
(CA 9, 1996).
Our Court of Appeals has also held that a defendant need not be
given an opportunity to be heard before the trial court extends his or her
probation period, People v Kendall, 142 Mich App 576, 579; 370 NW2d
631 (1985), or adds a new condition of probation, People v Graber, 128
Mich App 185, 190-191; 339 NW2d 866 (1983). This Court concluded in
426 505 MICH 391 [July
DISSENTING OPINION BY ZAHRA, J.

by the United States Court of Appeals for the Third

Circuit in Skipworth v United States to be particularly
persuasive:
After careful consideration of the principles set forth in
Morrissey and Gagnon and their applicability to this case,
we do not believe that due process required notice and a
hearing prior to the extension of the petitioner’s probation.
While we acknowledge that probation entails significant
restrictions on an individual, an extension of probation is
clearly not as “grievous” a “loss” as revocation, and here it
entailed no greater restrictions than those which existed
previously. In fact, the primary “loss” suffered by an indi-
vidual whose probation has been extended lies not in the
continuing restrictions themselves, but in the possibility of
future revocation. While such a loss is indeed serious, it is
merely potential at the time of extension, and the due
process clause clearly provides the protection of a hearing
in the event that revocation proceedings should subse-
quently occur. We add that the petitioner in fact received a
revocation hearing at which he was represented by counsel.
We also note that the kind of factual inquiry in an
extension proceeding is quite different from that in a
revocation proceeding. In revocation proceedings, the trial
judge must reasonably satisfy himself that the proba-
tioner has broken some law while on probation or has
otherwise violated a condition of his probation. While the
judge has considerable discretion as to whether to order

Marks, 340 Mich at 499-502, that due process does not require notice or
a hearing prior to the alteration of a probation order after its expiration,
but did so in part by relying on People v Good, 287 Mich 110; 282 NW 920
(1938), and Burns v United States, 287 US 216; 53 S Ct 154; 77 L Ed 266
(1932), for the proposition that probation is a “period of grace” and is a
privilege rather than a right. As noted above, the Supreme Court in
Morrissey “rejected the concept that constitutional rights turn upon
whether a governmental benefit is characterized as a ‘right’ or as a
‘privilege.’ ” Morrissey, 408 US at 481 (quotation marks and citation
omitted). For this reason, I apply the “grievous loss” test referred to in
Morrissey rather than focusing on probation’s status as a “privilege.” See
id. at 481-482. Consequently, while I reach the same result that this
Court reached in Marks, I do so for different reasons.
2020] PEOPLE V VANDERPOOL 427
DISSENTING OPINION BY ZAHRA, J.

revocation, he must at a minimum make an initial factual

finding of a probation violation. A revocation hearing,
therefore, provides the probationer with the crucial oppor-
tunity to contest an allegation of violation.
In granting an extension, however, the trial judge is
given greater latitude, and he need not find that any
probation violation has occurred. For example, in United
States v Squillante, 144 F Supp 494, 497 (SDNY 1956), the
court refused to terminate the probation which it had
previously extended, despite finding that the probationer
had complied with the express condition of his probation,
because it believed that “the best interest of society war-
rants the continuation of supervision over the proba-
tioner.”[36]

Furthermore, the applicable statutes already provide

a probationer with sufficient notice that extension of his
or her probation period is a possibility. MCL 771.2(5)
notifies defendants that “[t]he court may amend the
[probation] order in form or substance at any time.” In
addition, MCL 771.5(1) notifies defendants that “[w]hen
the probation period terminates . . . the court
may . . . extend the probation period as the circum-
stances require, so long as the maximum probation
period is not exceeded.” And MCL 771.2(1) notifies
defendants that the maximum probation period for
felonies is five years. These statutes inform defendants
convicted of felonies that their period of probation may
be extended up to five years. Moreover, defendants have
an opportunity to be heard at their trials or plea
hearings and at sentencing before the trial court origi-
nally imposes probation. For the reasons set forth
above, defendants are not entitled to an additional
opportunity to be heard after probation is ordered when
the trial court is merely extending probation.

36
Skipworth v United States, 508 F2d at 601-602.
428 505 MICH 391 [July
DISSENTING OPINION BY ZAHRA, J.
IV. CONCLUSION

I conclude that the trial court maintained jurisdic-

tion under the applicable statutory scheme to extend
defendant’s probationary period after its expiration. I
further conclude that this extension did not violate
defendant’s due-process rights. I would therefore af-
firm the lower courts. I respectfully dissent.

MARKMAN, and VIVIANO, JJ., concurred with ZAHRA, J.

2020] RAFAELI V OAKLAND CO 429

RAFAELI, LLC v OAKLAND COUNTY

Docket No. 156849. Argued November 7, 2019 (Calendar No. 1). Decided
July 17, 2020.
Rafaeli, LLC, and Andre Ohanessian brought an action in the
Oakland Circuit Court against Oakland County and its treasurer,
Andrew Meisner, alleging due-process and equal-protection vio-
lations as well as an unconstitutional taking of their properties.
Rafaeli owed $8.41 in unpaid property taxes from 2011, which
grew to $285.81 after interest, penalties, and fees. Defendants
foreclosed on Rafaeli’s property for the delinquency, sold the
property at public auction for $24,500, and retained all the sale
proceeds in excess of the taxes, interest, penalties, and fees.
Ohanessian owed approximately $6,000 in unpaid taxes, interest,
penalties, and fees from 2011. Like Rafaeli’s property, defendants
foreclosed on Ohanessian’s property for the delinquency, sold his
property at auction for $82,000, and retained all the proceeds in
excess of Ohanessian’s tax debt. Plaintiffs specifically alleged
that defendants, by selling plaintiffs’ real properties in satisfac-
tion of their tax debts and retaining the surplus proceeds from the
tax-foreclosure sale of their properties, had taken their properties
without just compensation in violation of the Takings Clauses of
the United States and Michigan Constitutions. The circuit court,
Denise K. Langford-Morris, J., granted summary disposition to
defendants, finding that defendants did not “take” plaintiffs’
properties because plaintiffs forfeited all interests they held in
their properties when they failed to pay the taxes due on the
properties. The court determined that property properly forfeited
under the General Property Tax Act (GPTA), MCL 211.1 et seq.,
and in accordance with due process is not a “taking” barred by
either the United States or Michigan Constitution. Because the
GPTA properly divested plaintiffs of all interests they had in their
properties, the court concluded that plaintiffs did not have a
property interest in the surplus proceeds generated from the
tax-foreclosure sale of their properties. Plaintiffs appealed in the
Court of Appeals. In an unpublished per curiam opinion issued on
October 24, 2017 (Docket No. 330696), the Court of Appeals,
MARKEY, P.J., and METER and SHAPIRO, JJ., affirmed the circuit
court’s decision and rejected plaintiffs’ argument that the GPTA’s
430 505 MICH 429 [July

“scheme” allows for unconstitutional takings. Drawing on Bennis

v Michigan, 516 US 442 (1996), a United States Supreme Court
case regarding civil-asset forfeiture resulting from criminal ac-
tivity, the Court of Appeals held that defendants acquired their
interest in plaintiffs’ properties by way of a statutory scheme that
did not violate due process and thus that defendants were not
required to compensate plaintiffs for property that was lawfully
obtained. Plaintiffs sought leave to appeal in the Supreme Court,
raising the takings issue as the sole issue on appeal. The Supreme
Court granted the application. 503 Mich 909 (2018).
In an opinion by Justice ZAHRA, joined by Chief Justice
MCCORMACK and Justices MARKMAN, BERNSTEIN, CLEMENT, and
CAVANAGH, the Supreme Court held:
Michigan’s common law recognizes a former property owner’s
property right to collect the surplus proceeds that are realized
from the tax-foreclosure sale of property, and this right is vested
such that it is to remain free from unlawful governmental
interference. Accordingly, when the government takes property to
satisfy an unpaid tax debt, Michigan’s Takings Clause requires
the foreclosing governmental unit to return any proceeds from
the tax-foreclosure sale in excess of the delinquent taxes, interest,
penalties, and fees reasonably related to the foreclosure and sale
of the property as just compensation. To the extent the GPTA
permits the government to retain these surplus proceeds and
transfer them into the county general fund, the GPTA is uncon-
stitutional as applied to former property owners whose properties
were sold at a tax-foreclosure sale for more than the amount owed
in unpaid taxes, interest, penalties, and fees related to the
forfeiture, foreclosure, and sale of their properties. The trial
court’s reliance on the term “forfeiture” in the GPTA was incor-
rect, and the Court of Appeals erred by relying on Bennis to
conclude that no taking occurred in this case.
1. The trial court’s reliance on the term “forfeiture” in the
GPTA was incorrect. Under MCL 211.78(8)(b), “forfeiture” simply
permits defendants to seek a judgment of foreclosure. Forfeiture
does not affect title, nor does it give the county treasurer (or the
state if the state is the foreclosing governmental unit) any rights,
titles, or interests to the forfeited property. Therefore, plaintiffs
did not “forfeit” all rights, titles, and interests they had in their
properties by failing to pay their real-property taxes.
2. The Court of Appeals erred by relying on Bennis to conclude
that no taking occurred in this case. Bennis is distinguishable
because the purpose of civil-asset forfeiture is different than the
purpose of the GPTA provisions at issue in this case. Bennis
2020] RAFAELI V OAKLAND CO 431

recognized that civil-asset forfeiture serves, at least in part, to

punish the owner of property, but the GPTA is not punitive in
nature; its aim is to encourage the timely payment of property
taxes and to return tax-delinquent properties to their tax-
generating status, not necessarily to punish property owners for
failing to pay their property taxes. The Court’s holding in Bennis
focused narrowly on forfeited property that was used as an
instrumentality for criminal activity and the government’s inter-
est in deterring illegal activity. In this case, plaintiffs did not use
their properties for illicit purposes. They simply failed to pay
their property taxes, which is not a criminal offense. Accordingly,
the Court of Appeals improperly conflated the meaning of “forfei-
ture” in an unrelated area of law with the meaning of “forfeiture”
as expressly described under the GPTA.
3. A claim of an unconstitutional taking is distinct from a
claim of property deprivation without due process of law. The
remedy for a taking of private property is just compensation,
whereas the remedy for being deprived of property without due
process of law is the return of the property. In this case, plaintiffs
did not dispute the legitimacy of defendants’ authority to fore-
close on their properties, nor did plaintiffs contest the adequacy of
defendants’ efforts to notify plaintiffs of the tax delinquency,
forfeiture, and foreclosure; instead, plaintiffs challenged defen-
dants’ retention of the surplus proceeds as an unconstitutional
taking. Plaintiffs’ request for a determination of just compensa-
tion demonstrated that the nature of their claim was a taking
without just compensation, not a deprivation of property without
due process of law. Therefore, there was no legal basis to conclude
that defendants’ compliance with the GPTA’s notice provisions
justified defendants’ retention of the surplus proceeds.
4. Under US Const, Am V and Const 1963, art 10, § 2, private
property shall not be taken for public use without just compen-
sation. Michigan’s Takings Clause has been interpreted to afford
property owners greater protection than its federal counterpart
when it comes to the state’s ability to take private property for a
public use under the power of eminent domain. A “taking” for
purposes of inverse condemnation means that the government
has permanently deprived the property owner of any possession
or use of the property without the commencement of formalized
condemnation proceedings. When such a taking occurs, the prop-
erty owner is entitled to just compensation for the value of the
property taken. In order to assert a takings claim of this nature,
a claimant must first establish a vested property right under
state law. In this case, plaintiffs alleged that they have a
432 505 MICH 429 [July

cognizable, vested property right to the surplus proceeds that

resulted from the tax-foreclosure sale of their properties under
Michigan law that is protected by Michigan’s Takings Clause. The
primary objective in interpreting a constitutional provision is to
determine the text’s original meaning to the ratifiers, the people,
at the time of ratification. The whole of Article 10, § 2 has a
technical meaning that must be discerned by examining the
purpose and history of the power of eminent domain. People ex rel
Seaman v Hammond, 1 Doug 276 (Mich, 1844), United States v
Lawton, 110 US 146 (1884), and Nelson v City of New York, 352
US 103 (1956), all address a former property owner’s statutory
right to recover the surplus proceeds. Seaman recognized that the
owner or claimant of the land at the time of the tax-foreclosure
sale had a statutory right to recover the surplus. Consistent with
Seaman, Lawton not only recognized this statutory right but also
made it clear that a Takings Clause violation will arise when a
tax-sale statute grants a former owner an independent property
interest in the surplus proceeds and the government fails to
return that surplus. Nelson, on the other hand, held that no
federal Takings Clause claim will exist when there is a statutory
path to recover the surplus proceeds but the property owners fail
to avail themselves of that procedure. Read together, Lawton and
Nelson establish that the Takings Clause under the United States
Constitution may afford former property owners a remedy when
a tax-sale statute provides the divested property owner an
interest in the surplus proceeds and the government does not
honor that statutory interest. However, Seaman, Lawton, and
Nelson do not provide direction on what occurs when the statutes
governing foreclosure make no mention of, or expressly preclude,
a divested property owner’s right to the surplus proceeds but the
divested property owner establishes a property right to the
surplus proceeds through some other legal source, such as the
common law. In that instance, the failure to provide the divested
property owner an avenue for recovering the surplus proceeds
would produce an identical result to Lawton: property to which an
individual is legally entitled has been taken without recourse.
Michigan’s statutory scheme under the GPTA does not recognize
a former property owner’s statutory right to collect these surplus
proceeds; therefore, it had to be determined whether plaintiffs
have a vested property right to these surplus proceeds through
some other legal source, such as the common law.
5. Michigan’s common law is adopted from England; there-
fore, English cases and authorities may be considered when
identifying common law. A review of English common law sup-
ported the notion that an owner of real or personal property has
2020] RAFAELI V OAKLAND CO 433

a right to any surplus proceeds that remain after the property is

sold to satisfy a tax debt. The Magna Carta protected property
owners from uncompensated takings and recognized that tax
collectors could only seize property to satisfy the value of the debt
payable to the Crown, leaving the property owner with the excess.
Sir William Blackstone similarly explained in the context of
bailments that whenever the government seized property for
delinquent taxes, it did so subject to an implied contract in law to
either return the property if the tax debt was paid or to render
back the surplus if the property was sold to satisfy the delinquent
taxes. The right to collect the surplus proceeds was also firmly
established in the early years of Michigan’s statehood, and
throughout Michigan’s history the Michigan Supreme Court has
held that the government’s takings power is limited to only that
property which is necessary to serve the public. These fundamen-
tal principles—that the government shall not collect more taxes
than are owed, nor shall it take more property than is necessary
to serve the public—protect taxpayers and property owners alike
from government overreach and have remained a staple in
Michigan’s jurisprudence. A property owner’s right to collect the
surplus proceeds from the tax-foreclosure sale of his or her
property has also withstood the most recent ratification of the
Michigan Constitution, as exemplified by Dean v Dep’t of Natural
Resources, 399 Mich 84 (1976), which recognized a right to collect
those proceeds under the common-law claim of unjust enrich-
ment. Dean stands for more than just a recognition of the
plaintiff’s right to bring a claim under unjust enrichment for the
surplus proceeds; inherent in Dean’s holding is Michigan’s pro-
tection under the common law of a property owner’s right to
collect the surplus proceeds that result from a tax-foreclosure
sale. Accordingly, Michigan’s common law recognizes a former
property owner’s property right to collect the surplus proceeds
that are realized from the tax-foreclosure sale of property, and
this right is vested such that it is to remain free from unlawful
governmental interference.
6. The amendments of the GPTA did not abrogate the
common-law right to collect the surplus proceeds. The 1963
Constitution protects a former owner’s property right to collect
the surplus proceeds following a tax-foreclosure sale under Ar-
ticle 10, § 2. While the Legislature is typically free to abrogate the
common law, it is powerless to override a right protected by
Michigan’s Takings Clause.
7. As the foreclosing governmental unit under the GPTA,
defendants were entitled to seize plaintiffs’ properties to satisfy
434 505 MICH 429 [July

the unpaid delinquent real-property taxes as well as any interest,

penalties, and fees associated with the foreclosure and sale of
plaintiffs’ properties. But defendants could only collect the
amount plaintiffs owed and nothing more. Once defendants
foreclosed on plaintiffs’ properties, obtained title to those proper-
ties, and sold them to satisfy plaintiffs’ unpaid taxes, interest,
penalties, and fees related to the foreclosures, any surplus
resulting from those sales belonged to plaintiffs. Defendants’
retention of those surplus proceeds under the GPTA amounted to
a taking of a vested property right requiring just compensation.
To the extent the GPTA permits defendants to retain these
surplus proceeds and transfer them into the county general fund,
the GPTA is unconstitutional as applied to former property
owners whose properties were sold at a tax-foreclosure sale for
more than the amount owed in unpaid taxes, interest, penalties,
and fees related to the forfeiture, foreclosure, and sale of their
properties. Defendants were required to return the surplus pro-
ceeds to plaintiffs, and defendants’ failure to do so constituted a
government taking under the Michigan Constitution entitling
plaintiffs to just compensation.
8. The remedy for a government taking is just compensation
for the value of the property taken. The property “taken” is the
surplus proceeds from the tax-foreclosure sale of plaintiffs’ prop-
erties to satisfy their tax debts. Therefore, plaintiffs are entitled
to the value of those surplus proceeds as just compensation.
Reversed and remanded to the Oakland Circuit Court for
further proceedings.
Justice VIVIANO, concurring, agreed with the majority’s result
but disagreed with much of its reasoning. Justice VIVIANO would
interpret the Constitution by discerning the ordinary meaning of
the term “property” and applying it to the facts of this case,
concluding that the property right taken from plaintiffs was their
equity in their respective properties and not any independent
interest in the surplus proceeds from the tax-foreclosure sale. The
majority did not explain which words in the Takings Clause were
in need of interpretation, and the majority’s investigation of what
the ratifiers understood property to mean ultimately rested on a
flawed understanding of its original meaning. By reasoning that
“property” must be defined as the particular types the ratifiers
had in mind, the majority interpreted the Takings Clause as
exalting those interests above the Legislature’s authority to
modify them, raising serious concerns regarding the separation of
powers. Under the majority’s position, any property rights extant
when the Constitution was ratified would be insulated from
2020] RAFAELI V OAKLAND CO 435

legislative change, whereas later-developed property rights

would presumably be subject to change. The majority’s broad
position would not allow the Legislature to repeal rights that
were recognized property rights at the time of ratification and
thereby preserved in the Takings Clause, and this prohibition
would extend even to legislation that prospectively modified or
abrogated nonvested property rights—i.e., rights to property that
individuals might acquire in the future. Furthermore, the major-
ity characterized the property at issue as merely the surplus
proceeds from the foreclosure sale but did not consider the
property interests that existed before the sale or how those
interests affected the taxpayer’s entitlement to anything result-
ing from the sale. And it was far from clear what implications the
former existence of a statutory right to surplus proceeds had in
determining the application of the constitutional right in this
case. In sum, Justice VIVIANO would have characterized the
property right at issue in this case as the taxpayer’s equity in the
property, which best fits the development of ownership rights in
property laden with debts and liens. The Legislature did not
purport to abrogate the taxpayer’s equity; therefore, a taking
occurred when title to plaintiffs’ property was vested in the
government without any possibility of redemption, and plaintiffs
were owed the surplus proceeds from the tax-foreclosure sales.

CONSTITUTIONAL LAW — PROPERTY — TAKINGS CLAUSE — GENERAL PROPERTY TAX

ACT — COLLECTION OF SURPLUS PROCEEDS IN A TAX-FORECLOSURE SALE OF
REAL PROPERTY.
Michigan’s common law recognizes a former property owner’s
property right to collect the surplus proceeds that are realized
from the tax-foreclosure sale of property, and this right is vested
such that it is to remain free from unlawful governmental
interference; when the government takes property to satisfy an
unpaid tax debt, Michigan’s Takings Clause requires the foreclos-
ing governmental unit to return any proceeds from the tax-
foreclosure sale in excess of the delinquent taxes, interest, pen-
alties, and fees reasonably related to the foreclosure and sale of
the property as just compensation; to the extent the General
Property Tax Act (GPTA), MCL 211.1 et seq., permits defendants
to retain these surplus proceeds and transfer them into the
county general fund, the GPTA is unconstitutional as applied to
former property owners whose properties were sold at a tax-
foreclosure sale for more than the amount owed in unpaid taxes,
interest, penalties, and fees related to the forfeiture, foreclosure,
and sale of their properties (Const 1963, art 10, § 2).
436 505 MICH 429 [July

Fink & Fink, PLLC (by Andrew F. Fink III), The Law
Offices of Aaron D. Cox, PLLC (by Aaron D. Cox), Mark
K. Wasvary, PC (by Mark. K. Wasvary), Christina M.
Martin, and Lawrence G. Salzman for plaintiffs.

Giarmarco, Mullins & Horton, PC (by William H.

Horton), Bursch Law PLLC (by John J. Bursch), and
Keith L. Lerminiaux and Joellen Shortley, Oakland
County Corporate Counsel, for defendants.

Amici Curiae:

Lewis, Reed & Allen, PC (by Ronald W. Ryan),

Jaimie Cavanaugh, and Wesley Hottot for the Institute
for Justice.

Lewis, Reed & Allen, PC (by Ronald W. Ryan), John

C. Eastman, and Anthony T. Caso for the Claremont
Institute’s Center for Constitutional Jurisprudence.

Barnes & Thornburg LLP (by Tracy D. Knox and

Aaron D. Lindstrom) for 2 Crooked Creek, LLC.

Dykema Gossett PLLC (by Steven C. Liedel,

Theodore W. Seitz, and Erin A. Sedmak) for the
Michigan Association of Counties, the Michigan Mu-
nicipal League, and the Michigan Townships Associa-
tion.

Daniel B. Kohrman and Matthew E. Gronda for the

AARP and the AARP Foundation.

Bodman PLC (by Thomas J. Rheaume, Jr., and

Amanda J. Frank), Robert Alt, and John J. Park for
the Buckeye Institute for Public Policy Solutions.

Clark Hill PLC (by Charles A. Lawler) and Kevin T.

Smith for the Michigan Association of County Treasur-
ers.
2020] RAFAELI V OAKLAND CO 437
OPINION OF THE COURT

Dana Nessel, Attorney General, Fadwa A. Hammoud,

Solicitor General, and Matthew B. Hodges, Assistant
Attorney General, for the Michigan Department of Trea-
sury.

Outside Legal Counsel PLC (by Philip L. Ellison) for

Donald Freed, Lynette Hathon, and Amy Jo Denkins.

ZAHRA, J. Plaintiff Rafaeli, LLC, owed $8.41 in unpaid

property taxes from 2011, which grew to $285.81 after
interest, penalties, and fees. Oakland County and its
treasurer, Andrew Meisner (collectively, defendants),
foreclosed on Rafaeli’s property for the delinquency, sold
the property at public auction for $24,500, and retained
all the sale proceeds in excess of the taxes, interest,
penalties, and fees. Plaintiff Andre Ohanessian owed
approximately $6,000 in unpaid taxes, interest, penal-
ties, and fees from 2011. Like Rafaeli’s property, defen-
dants foreclosed on Ohanessian’s property for the delin-
quency, sold his property at auction for $82,000, and
retained all the proceeds in excess of Ohanessian’s tax
debt. The issue in this case is whether defendants have
committed an unconstitutional taking by retaining
the surplus proceeds from the tax-foreclosure sale of
Rafaeli’s and Ohanessian’s (collectively, plaintiffs) prop-
erties that exceed the amount plaintiffs owed in unpaid
delinquent taxes, interest, penalties, and fees under the
General Property Tax Act (GPTA).1 We hold that defen-
dants’ retention of those surplus proceeds is an uncon-
stitutional taking without just compensation under
Article 10, § 2 of our 1963 Constitution. Accordingly, we
reverse the judgment of the Court of Appeals and
remand this case to the Oakland Circuit Court for
proceedings consistent with this opinion.

1
MCL 211.1 et seq.
438 505 MICH 429 [July
OPINION OF THE COURT
I. FACTS AND PROCEDURAL HISTORY

Rafaeli purchased a rental property in Southfield for

$60,000 on August 15, 2011, but failed to pay the 2011
taxes due on the property in the amount of $536.24.2
Defendants mailed to Rafaeli notice of the delinquency
on June 11, 2012. Rafaeli sent payment to defendants
on August 30, 2012, yet this payment was insufficient
to cover the full amount of the tax delinquency. Defen-
dants mailed a second notice of the delinquency to
Rafaeli on September 3, 2012, and Rafaeli sent an-
other payment to defendants on January 14, 2013;
however, even after Rafaeli’s second payment, a defi-
ciency of $8.41, plus $2.26 in interest, penalties, and
fees remained on Rafaeli’s property. On February 1,
2013, defendants sent Rafaeli a third notice of delin-
quency. This delinquency was never paid, and as a
result, on March 1, 2013, Rafaeli’s property was for-
feited in the amount of the unpaid taxes, interest,
penalties, and fees.
On May 16, 2013, defendants filed a petition seeking
to foreclose all tax-delinquent properties that were
forfeited for unpaid 2011 real-property taxes, including
Rafaeli’s property. On February 26, 2014, a foreclosure
hearing was held in the Oakland Circuit Court. Rafaeli
did not appear. After the hearing, the court entered a
judgment of foreclosure that included Rafaeli’s prop-
erty. At the time of the foreclosure, the delinquency had
grown to $285.81 because of penalties, interest,
and fees. Rafaeli failed to timely redeem the property
by March 31, 2014, resulting in the transfer to defen-
dants of fee simple title to Rafaeli’s property.

2
In plaintiffs’ complaint, Rafaeli alleges that a tax deficiency re-
mained on the property despite certification from Meisner that all taxes
were paid on the property from the previous five years. This led to a tax
delinquency of $496.52 plus $39.72 in penalties, fees, and interest.
2020] RAFAELI V OAKLAND CO 439
OPINION OF THE COURT

On August 19, 2014, defendants sold Rafaeli’s property

at auction to a third party for $24,500. Defendants
retained all the surplus proceeds that exceeded the
$285.81 debt Rafaeli owed to defendants.
Ohanessian purchased a 2.7-acre property located in
the city of Orchard Lake Village in 2004. Ohanessian
paid $2,510.05 to defendants to satisfy his 2010 delin-
quent property taxes but failed to pay his 2011 property
taxes.3 After Ohanessian’s property was forfeited for
the amount of the unpaid taxes, interest, penalties,
and fees, defendants added his property to the petition
for foreclosure for unpaid 2011 real-property taxes.
The same judgment of foreclosure entered on
February 26, 2014, that included Rafaeli’s property
also included Ohanessian’s property. At the time of the
foreclosure, Ohanessian owed approximately $6,000 in
unpaid taxes, interest, penalties, and fees. Ohanessian
failed to redeem his property by March 31, 2014, and
defendants obtained fee simple title to his property. On
September 26, 2014, defendants sold Ohanessian’s
property at auction to a third party for $82,000. Defen-
dants retained all the surplus proceeds exceeding
Ohanessian’s tax debts.
Plaintiffs filed this action against defendants in the
Oakland Circuit Court, alleging due-process and
equal-protection violations as well as an unconstitu-

3
According to Ohanessian, he moved to California sometime in 2011.
He alleges that he filled out an electronic change-of-address form on
defendants’ website but that he stopped receiving his tax bills when he
moved. He states that he used a mailbox at a UPS store in Eastpointe to
receive his property-tax bills. Defendants claim that they used this
address, as well as Ohanessian’s former residence in Livonia, to send
Ohanessian notice of the tax delinquency in June 2013, December 2013,
and February 2014. Defendants claim that they received no response to
these notices.
440 505 MICH 429 [July
OPINION OF THE COURT

tional taking.4 As relevant to this case, plaintiffs spe-

cifically alleged that defendants, by selling plaintiffs’
real properties in satisfaction of their tax debts and
retaining the surplus proceeds from the tax-foreclosure
sale of their properties, had taken their properties
without just compensation in violation of the Takings
Clauses of the United States and Michigan Constitu-
tions.
The circuit court granted summary disposition to
defendants, finding that defendants did not “take”
plaintiffs’ properties because plaintiffs forfeited all
interests they held in their properties when they failed
to pay the taxes due on the properties.5 The court
determined that property properly forfeited under
the GPTA and in accordance with due process is
not a “taking” barred by either the United States or
Michigan Constitution. Because the GPTA properly
divested plaintiffs of all interests they had in their
properties, the court concluded that plaintiffs did not
have a property interest in the surplus proceeds gener-
ated from the tax-foreclosure sale of their properties.6
Plaintiffs appealed in the Court of Appeals. The Court

4
Prior to filing this action, Rafaeli and a nonparty to this case filed a
putative class action against the counties of Wayne and Oakland in
federal court, asserting, among other things, an unconstitutional-
takings claim. The case was dismissed for lack of subject-matter
jurisdiction. Rafaeli, LLC v Wayne Co, unpublished opinion of the
United States District Court for the Eastern District of Michigan, issued
June 4, 2015 (Case No. 14-13958).
5
Rafaeli, LLC v Oakland Co, unpublished opinion and order of the
Oakland Circuit Court, issued October 8, 2015 (Docket No. 15-147429-
CZ), p 3.
6
Plaintiffs moved for reconsideration and also moved to amend their
complaint to add claims of substantive due-process violations, violations
of the Eighth Amendment’s prohibition against excessive fines, and
unjust enrichment. The circuit court denied reconsideration and denied
plaintiffs’ proposed amendment as futile.
2020] RAFAELI V OAKLAND CO 441
OPINION OF THE COURT

of Appeals affirmed the circuit court and rejected

plaintiffs’ argument that the GPTA’s “scheme” allows
for unconstitutional takings.7 Drawing on precedent
from the United States Supreme Court regarding civil-
asset forfeiture resulting from criminal activity, the
Court of Appeals held that defendants acquired their
interest in plaintiffs’ properties “by way of a statutory
scheme that did not violate due process” and thus
defendants were not required to compensate plaintiffs
for property that was lawfully obtained.8
Plaintiffs sought leave to appeal in this Court,
raising the takings issue as the sole issue on appeal.
We granted plaintiffs’ application, ordering the parties
to address whether defendants violated the Takings
Clause of the United States Constitution, the Michigan
Constitution, or both by retaining the proceeds from
the sale of tax-foreclosed property that exceeded the
amount of the taxes, penalties, interest, and fees owed
on the property.9

II. OVERVIEW OF THE GPTA

The GPTA permits the recovery of unpaid real-

property taxes, penalties, interest, and fees through
the foreclosure and sale of the property on which there

7
Rafaeli, LLC v Oakland Co, unpublished per curiam opinion of the
Court of Appeals, issued October 24, 2017 (Docket No. 330696), p 5.
8
Id., citing Bennis v Michigan, 516 US 442, 452; 116 S Ct 994; 134
L Ed 2d 68 (1996). Judge SHAPIRO concurred with the majority’s
conclusion that plaintiffs failed to state a compensable takings claim but
disagreed with the majority’s reliance on principles of civil-asset forfei-
ture. Instead, Judge SHAPIRO relied on different authority from the
United States Supreme Court, which he concluded had rejected a
similar claim to recover the surplus proceeds from a tax-foreclosure sale.
Rafaeli (SHAPIRO, J., concurring), unpub op at 1-2, citing Nelson v City of
New York, 352 US 103, 111; 77 S Ct 195; 1 L Ed 2d 171 (1956).
9
Rafaeli, LLC v Oakland Co, 503 Mich 909 (2018).
442 505 MICH 429 [July
OPINION OF THE COURT

is a tax delinquency. Under the current process, tax-

delinquent properties are forfeited to the county trea-
surers; foreclosed on after a judicial foreclosure hear-
ing; and, if not timely redeemed, sold at a public
auction.10 Counties may elect to serve as the “foreclos-
ing governmental unit”; otherwise, the state will do
so.11
Real-property taxes are assessed and collected first
by the city, township, or village treasurer where the

10
Before 1999, delinquent-tax liens were offered at annual tax-lien
sales in which anyone could purchase the tax liens. See Smith, Foreclo-
sure of Real Property Tax Liens Under Michigan’s New Foreclosure
Process, 29 Mich Real Prop Rev 51, 51 (2002); see also Alexander, Tax
Liens, Tax Sales, and Due Process, 75 Ind L J 747, 760 (2000) (“This
transfer of the lien is distinct from the sale of the underlying property
which occurs at a tax foreclosure sale. Instead, what is transferred is the
lien itself, vesting in the purchaser the right to enforce the lien in
accordance with statutory procedures.”). The tax-lien sale was followed
by a one-year redemption period. If the property was not timely
redeemed, the tax-lien purchaser, or the state if there was no tax-lien
purchaser, would be deeded the property and was responsible for the
final foreclosure of the property. The former foreclosure process could
extend many years, causing properties to deteriorate and become
clouded with poor title, which often led to title-insurance companies
refusing to insure these properties. As a result, the Legislature over-
hauled the GPTA in 1999. See 1999 PA 123. The current scheme
expedites the foreclosure process, thereby reducing the amount of
abandoned, tax-delinquent properties within the state. Given that the
sole issue in this appeal is whether a “taking” occurred, many of the
GPTA’s procedures regarding the notice and hearing requirements,
which are relevant to due-process jurisprudence, are either described
briefly or omitted entirely from this general overview. For a complete
discussion of the current foreclosure process, see Michigan’s New
Foreclosure Process, 29 Mich Real Prop Rev at 51. And for a comprehen-
sive overview of the prior foreclosure process, see Smith, Foreclosure of
Real Property Tax Liens, 75 Mich B J 953 (1996).
11
MCL 211.78(8)(a). Seventy-five of Michigan’s 83 counties elect to act as
the foreclosing governmental unit. See Michigan Department of Treasury,
New Law Tax Foreclosure Archive <https://www.michigan.gov/taxes/0,4676,
7-238-43535_55601_55605-235134--,00.html> (accessed May 12, 2020)
[https://perma.cc/L9V2-BC35].
2020] RAFAELI V OAKLAND CO 443
OPINION OF THE COURT

property is located.12 When property taxes are not

satisfied and become delinquent, collection is turned
over to the foreclosing governmental unit.13 If the
county elects to serve as the foreclosing governmental
unit, it may create a “delinquent tax revolving fund”
that funds local municipalities for the unpaid delin-
quent taxes.14 The county treasurer then attempts to
collect the delinquent taxes.15
On March 1 of each tax year, taxes due in the
immediately preceding year that remain unpaid are
returned to the county treasurer as “delinquent.”16
Notice of the delinquency, which must explain the
effect of failing to pay the tax delinquency and the
possibility of foreclosure, must be afforded to property

12
MCL 211.44; MCL 211.45; see also OAG, 2014, No. 7,279 (June 11,
2014) (“[Real property taxes] are assessed and, in the first instance,
collected by the city, township, or village treasurer.”).
13
MCL 211.55.
14
MCL 211.87b. Local municipalities rely heavily on real-property
taxes for revenue streams. Thus, counties use the delinquent tax
revolving fund to advance municipalities’ funds that would otherwise
come from the unpaid real-property taxes. This advance allows local
municipalities to continue with their day-to-day operations without
having to wait for payment of the delinquent property taxes.
15
Any taxes, interest, penalties, and fees subsequently collected
by the county treasurer are deposited into the delinquent tax revolving
fund. If delinquent property taxes are not collected, properties
are foreclosed and typically sold at a public auction known as a
tax-foreclosure sale. In disbursing the proceeds from the tax-foreclosure
sale, the first priority is to reimburse the delinquent tax revolving
fund for “all taxes, interest, and fees on all of the property . . . .”
MCL 211.78m(8)(a). If the county is ultimately unable to collect the
entire amount it advanced to the municipalities, either by tax collection
or foreclosure sales, then the county can charge the municipalities back
the uncollected amount. MCL 211.87b(1). When a surplus exists, the
county board of commissioners may transfer the surplus into the
county’s general fund. MCL 211.78m(8)(h).
16
MCL 211.78a(2).
444 505 MICH 429 [July
OPINION OF THE COURT

owners throughout the next 12 months.17 On March 1

of the year following delinquency, properties with de-
linquent taxes are “forfeited” to the county treasurer
for the amount of the tax delinquency, as well as any
interest, penalties, and fees associated with the delin-
quency.18 Notably, the term “forfeiture,” as used in the
GPTA, means only that a foreclosing governmental
unit may seek a judgment of foreclosure if the property
is not redeemed; it does not affect title.19
Once forfeiture occurs, the county treasurer must
record a certificate of forfeiture with the county
register of deeds, placing all parties with an interest
in the property on notice that the property has been
forfeited to the county treasurer, that the property
has not been redeemed, and “that absolute title to the
property will vest in the county treasurer on the
March 31 immediately succeeding the entry of a judg-
ment foreclosing the property . . . .”20 Forfeited prop-
erty may be redeemed at any time on or before that
March 31 date if the total amount of unpaid delinquent
taxes, interest, penalties, and fees are paid to the
county treasurer.21 Meanwhile, foreclosing governmen-
tal units must file a petition for foreclosure with the
circuit court that presides over where the forfeited

17
See MCL 211.78a through MCL 211.78c; MCL 211.78f.
18
MCL 211.78g(1).
19
MCL 211.78(8)(b) (“ ‘Forfeited’ or ‘forfeiture’ means a foreclosing
governmental unit may seek a judgment of foreclosure under
[MCL 211.78k] if the property is not redeemed as provided under [the
GPTA], but does not acquire a right to possession or any other interest in
the property.”).
20
MCL 211.78g(2).
21
MCL 211.78g(3)(a). This subsection details additional taxes, inter-
est, and fees that must be paid to the county treasurer in order to
successfully redeem the property. MCL 211.78g(3)(b) through (d).
2020] RAFAELI V OAKLAND CO 445
OPINION OF THE COURT

property is located no later than the 15th day of June

following the forfeiture.22 The petition must “seek a
judgment in favor of the foreclosing governmental unit
for the forfeited unpaid delinquent taxes, interest,
penalties, and fees listed against each parcel of prop-
erty . . . [and] shall request that a judgment be entered
vesting absolute title to each parcel of property in the
foreclosing governmental unit, without right of re-
demption.”23
A judicial foreclosure hearing must be held in the
circuit court within 30 days of March 1 of the year
after the petition for foreclosure is filed.24 After the
judicial foreclosure hearing, the judgment of foreclo-
sure must be entered by March 30, with an effective
date of March 31.25 Unless the delinquent taxes, inter-
est, penalties, and fees are paid on or before March 31,
fee simple title to the property vests absolutely in the
foreclosing governmental unit without any further
redemption rights available to the delinquent tax-
payer.26 Thereafter, the foreclosing governmental unit’s
title to the property is not subject to any recorded or
unrecorded lien.27

22
MCL 211.78h(1).
23
Id. Forfeited properties listed in the petition may be redeemed after
the petition for foreclosure is filed, in which case the properties are
removed from the petition for foreclosure. MCL 211.78h(2).
24
MCL 211.78h(5). In the meantime, the GPTA provides for various
notices and hearings that must be given before foreclosure is finalized.
These include various notices by mail, publication, recordation, and
even a personal visit to the property, see MCL 211.78h through
MCL 211.78i, as well as a show cause hearing within seven days of the
judicial foreclosure hearing, see MCL 211.78j.
25
MCL 211.78k(5). The final redemption date is March 31. Id.
26
MCL 211.78k(5) and (6).
27
MCL 211.78k(6).
446 505 MICH 429 [July
OPINION OF THE COURT

After foreclosure, and assuming the state, city, vil-

lage, township, or county where the property is located
does not purchase the property, the GPTA provides for
one or more auction sales beginning on the third
Tuesday in July immediately succeeding the entry of
the judgment of foreclosure.28 Once sold, the foreclos-
ing governmental unit deposits the sale proceeds into
an account designated as the “delinquent tax property
sales proceeds for the year [the taxes became delin-
quent]” (hereinafter, the account).29
Importantly, the account is comprised of the pro-
ceeds of all sales for that year, such that the proceeds
of a single sale are commingled with the proceeds of all
the other sales.30 The foreclosing governmental unit
then distributes the proceeds in the account in a
specific order of priority. The first priority is to reim-
burse the delinquent tax revolving fund for the full
amount of unpaid taxes, interest, and fees owed on the

28
MCL 211.78m(2). All property not sold on or before December 30
immediately succeeding entry of the judgment of foreclosure is trans-
ferred to the city, village, or township where the property is located
unless the city, village, or township objects to the transfer.
MCL 211.78m(6). If the property remains unsold and is not transferred
to the city, village, or township, the foreclosing governmental unit
retains the property. Id.
29
MCL 211.78m(8). Notably, this account is a subsidiary account
within the delinquent tax revolving fund. The delinquent tax revolving
fund is segregated into separate accounts for each year’s delinquent
taxes. Those accounts continue to exist until all the delinquent taxes for
that tax year have been collected. See generally Michigan Department
of Treasury, 2001-5 Delinquent Tax Revolving Funds Revisions To
Accounting After Public Act 123 of 1999 (February 8, 2001), available at
<https://www.michigan.gov/treasury/0,4679,7-121-1751_2194-6024--,00
.html> (accessed May 13, 2020) [https://perma.cc/395W-FWHC].
30
Money and property within the delinquent tax revolving fund,
however, remain separate from any other money, property, or assets in
the custody of the county treasurer. MCL 211.87b(1).
2020] RAFAELI V OAKLAND CO 447
OPINION OF THE COURT

property.31 This is followed by the annual costs in-

curred as a result of conducting foreclosure sales and
general overhead in conducting the foreclosure pro-
ceedings for the year.32 The statutory scheme for reim-
bursement is quite exhaustive and even includes costs
for maintaining property foreclosed under the GPTA,
defending title actions, and administering the foreclo-
sure and the disposition of forfeited property for delin-
quent taxes.33
The parties acknowledge that sale proceeds are
often insufficient to cover the full amount of the delin-
quent taxes, interest, penalties, and fees related to the
foreclosure and sale of the property. But when there
are excess proceeds from individual sales, such as the
sale of plaintiffs’ properties in this case, those proceeds
are used to subsidize the costs for all foreclosure
proceedings and sales for the year of the tax delin-
quency, as well as any years prior or subsequent to the
delinquency.34 Then, after the required statutory dis-
bursements are made, surplus proceeds may be trans-
ferred to the county general fund in cases in which the
county is the foreclosing governmental unit.35 Of par-
ticular importance here, the GPTA does not provide for
any disbursement of the surplus proceeds to the former
property owner, nor does it provide former owners a
right to make a claim for these surplus proceeds.

31
MCL 211.78m(8)(a). In fact, the GPTA requires the delinquent tax
revolving fund to be reimbursed regardless of “whether or not all of the
property was sold.” Id.
32
MCL 211.78m(8)(b) and (c).
33
MCL 211.78m(8)(e), (f)(ii), and (f)(iii).
34
MCL 211.78m(8)(b) through (d); MCL 211.78m(8)(f)(i).
35
MCL 211.78m(8)(h). In cases in which the state is the foreclosing
governmental unit, “any remaining balance shall be transferred
to the land reutilization fund created under [MCL 211.78n].”
MCL 211.78m(8)(g).
448 505 MICH 429 [July
OPINION OF THE COURT

Michigan is one of nine states with a statutory scheme

that requires the foreclosing governmental unit to
disburse the surplus proceeds to someone other than
the former owner.36 It is under this framework that we
review plaintiffs’ takings claim.
III. STANDARD OF REVIEW

This Court reviews a circuit court’s decision regard-

ing a motion for summary disposition, as well as any
constitutional issues, de novo.37
IV. ANALYSIS

A. “FORFEITURE” UNDER THE GPTA AND

CIVIL-ASSET FORFEITURE

Before turning to plaintiffs’ takings claim, we first

address why the trial court’s reliance on the term
“forfeiture” in the GPTA was incorrect and why the
panel majority erred by relying on Bennis v Michigan,
a case involving civil-asset forfeiture, to conclude that
no taking occurred in this case.
First, the GPTA makes clear that “forfeiture” simply
permits defendants to seek a judgment of foreclosure.38

36
Comment, State Theft In Real Property Tax Foreclosure Procedures,
54 Real Prop Tr & Est L J 93, 101-102 & n 56 (2019) (explaining that
Alabama, Arizona, Illinois, Indiana, Michigan, Minnesota, Mississippi,
Montana, and Oregon all require the foreclosing governmental unit “to
do something with the foreclosure sale surplus other than return it to
the original owner”).
Recent legislation has been proposed requiring the foreclosing govern-
mental unit, in instances in which sale of the property exceeds the
minimum bid at auction, to “remit an amount equal to that excess” to the
former property owner if the property was owned and occupied as a
principal residence before the judgment of foreclosure was entered. See
2019 HB 4219.
37
Sidun v Wayne Co Treasurer, 481 Mich 503, 508; 751 NW2d 453
(2008).
38
MCL 211.78(8)(b).
2020] RAFAELI V OAKLAND CO 449
OPINION OF THE COURT

Forfeiture does not affect title, nor does it give the

county treasurer (or the state if the state is the
foreclosing governmental unit) any rights, titles, or
interests to the forfeited property. Therefore, we reject
the premise that plaintiffs “forfeited” all rights, titles,
and interests they had in their properties by failing to
pay their real-property taxes.
Second, Bennis is distinguishable because the pur-
pose of civil-asset forfeiture is different than the
purpose of the GPTA provisions at issue here. Bennis
recognized that civil-asset forfeiture “serves, at least
in part, to punish the owner” of property.39 But the
GPTA is not punitive in nature. Its aim is to encourage
the timely payment of property taxes and to return
tax-delinquent properties to their tax-generating sta-
tus, not necessarily to punish property owners for
failing to pay their property taxes.40 Bennis also recog-
nized that civil-asset forfeiture works as a deterrent,
preventing property tainted with criminality from be-
ing further used for illicit purposes.41 To this end, the
Supreme Court in Bennis stated that “[t]he govern-
ment may not be required to compensate an owner for
property which it has already lawfully acquired under

39
Bennis, 516 US at 451-453 (quotation marks and citation omitted).
40
MCL 211.78(1) (“The legislature finds that there exists in this state
a continuing need to strengthen and revitalize the economy of this state
and its municipalities by encouraging the efficient and expeditious
return to productive use of property returned for delinquent taxes.
Therefore, the powers granted in this act relating to the return of
property for delinquent taxes constitute the performance by this state or
a political subdivision of this state of essential public purposes and
functions.”).
41
Bennis, 516 US at 452 (“[F]orfeiture . . . serves a deterrent purpose
distinct from any punitive purpose. Forfeiture of property prevents
illegal uses both by preventing further illicit use of the property and by
imposing an economic penalty, thereby rendering illegal behavior un-
profitable.”) (quotation marks, brackets, and citation omitted).
450 505 MICH 429 [July
OPINION OF THE COURT

the exercise of governmental authority other than the

power of eminent domain.”42 We conclude that Bennis
is distinguishable and provides us little guidance as it
relates to plaintiffs’ takings claim. The Court’s holding
in Bennis focused narrowly on forfeited property that
was used as an instrumentality for criminal activity
and the government’s interest in deterring illegal ac-
tivity.43 In this case, plaintiffs did not use their prop-
erties for illicit purposes. They simply failed to pay
their property taxes, which is not a criminal offense.44
Accordingly, we conclude that the Court of Appeals
improperly conflated the meaning of “forfeiture” in an
unrelated area of law with the meaning of “forfeiture”
as expressly described under the GPTA.

B. DUE PROCESS

We also reject defendants’ argument that no taking

occurred in this case because plaintiffs were afforded

42
Id.
43
Id. at 453 (explaining that the forfeiture of the petitioner’s car
used in her husband’s criminal activity was consistent with longstand-
ing punitive, deterrent, and remedial goals underlying civil-asset
forfeiture); id. at 455 (Thomas, J., concurring) (holding that the
forfeiture was permissible because the car was used as an instrumen-
tality of crime and the petitioner did not argue otherwise); id. at 458
(Ginsburg, J., concurring) (“Michigan has decided to deter johns from
using cars they own (or co-own) to contribute to neighborhood blight,
and that abatement endeavor hardly warrants this Court’s disappro-
bation.”).
44
As the Supreme Court of Appeals of Virginia in Martin v Snowden,
59 Va 100, 142-143 (1868), aff’d sub nom Bennett v Hunter, 76 US 326
(1869), stated:
This forfeiture cannot be sustained as a forfeiture for crime . . . .
In such cases, the thing forfeited is the instrument by which the
offence was committed, or was the fruit of the offence, and is
treated as being itself, in some sort, the offender. But the land of a
delinquent tax-payer cannot be brought within the principle of this
class of cases; it is neither the instrument nor the fruit of any
2020] RAFAELI V OAKLAND CO 451
OPINION OF THE COURT

the minimal protections of due process. The United

States and Michigan Constitutions dictate that before
the government may take property for unpaid taxes, it
must provide the property owner sufficient notice of
the delinquency and foreclosure proceedings as well as
an opportunity to contest those proceedings.45 To this
end, the GPTA explicitly states its intent to comply
with minimum requirements of due process and not
create new rights beyond those prescribed in the Con-
stitutions of our nation or this state.46 As long as
defendants comply with these due-process consider-
ations, plaintiffs may not contest the legitimacy of
defendants’ authority to foreclose on their properties
for unpaid tax debts, nor may plaintiffs contest the sale
of their properties to third-party purchasers.47
A claim of an unconstitutional taking, however, is
distinct from a claim of property deprivation without
due process of law.48 In Lingle v Chevron USA Inc, the

offence. Nor can we suppose that Congress intended to make it a

criminal, or even a quasi criminal offence, for a man not to pay his
taxes . . . .
45
US Const, Am V (“[N]or shall private property be taken for public
use, without just compensation.”); Const 1963, art 1, § 17 (“No person
shall . . . be deprived of life, liberty or property, without due process of
law.”).
46
MCL 211.78(2).
47
See Jones v Flowers, 547 US 220, 234; 126 S Ct 1708; 164 L Ed 2d
415 (2006) (“People must pay their taxes, and the government may hold
citizens accountable for tax delinquency by taking their property. But
before forcing a citizen to satisfy his debt by forfeiting his property, due
process requires the government to provide adequate notice of the
impending taking.”); Sidun, 481 Mich at 509 (“Proceedings that seek to
take property from its owner must comport with due process.”).
48
Compare Const 1963, art 10, § 2 (Michigan’s Takings Clause) with
Const 1963, art 1, § 17 (Michigan’s Due Process Clause); see also
Peñalver & Strahilevitz, Judicial Takings or Due Process?, 97 Cornell
L Rev 305, 317-318 (2012) (stating that the Takings Clause and the Due
452 505 MICH 429 [July
OPINION OF THE COURT

United States Supreme Court discussed the difference

between these two constitutional clauses:
The [Takings] Clause expressly requires compensation
where government takes private property for public use. It
does not bar government from interfering with property
rights, but rather requires compensation in the event of
otherwise proper interference amounting to a taking.
Conversely, if a government action is found to be
impermissible—for instance because it . . . is so arbitrary
as to violate due process—that is the end of the inquiry. No
amount of compensation can authorize such action.[49]

As Lingle suggests, each constitutional provision

protects property owners against specific government
action, offering different remedies for distinct consti-
tutional violations. The remedy for a taking of private
property is just compensation, while the remedy for
being deprived of property without due process of law
is the return of the property.50 Notably, plaintiffs do not
dispute the legitimacy of defendants’ authority to fore-
Process Clause of the Fifth Amendment “have frequently been muddled
together by courts and commentators alike,” but “grammatically they
operate independently of one another and the Supreme Court under-
stands them to protect owners against different kinds of government
harms”) (citation omitted).
49
Lingle v Chevron USA Inc, 544 US 528, 543; 125 S Ct 2074; 161
L Ed 2d 876 (2005) (quotation marks, citation, and emphasis omitted).
50
Id.; see also Judicial Takings, 97 Cornell L Rev at 320 (“Distin-
guishing between the Takings and Due Process Clauses is consistent
with the text of the Constitution, but it also provides a richer conceptual
vocabulary for evaluating constitutional property claims . . . .”). The
GPTA, at one point, limited property owners to a damages action under
MCL 211.78l whenever “he or she did not receive any notice required
under [the GPTA] . . . .” Once the judgment of foreclosure was entered
and the former property owner’s interest in the property was extin-
guished, the former owner could not bring an action for possession. But,
in In re Petition By Treasurer of Wayne Co for Foreclosure, 478 Mich 1;
732 NW2d 458 (2007), this Court held that limitation unconstitutional.
Thus, property owners can now file a motion to set aside their judgment
2020] RAFAELI V OAKLAND CO 453
OPINION OF THE COURT

close on their properties, nor do plaintiffs contest the

adequacy of defendants’ efforts to notify plaintiffs of the
tax delinquency, forfeiture, and foreclosure. Instead,
plaintiffs challenge defendants’ retention of the surplus
proceeds as an unconstitutional taking. Plaintiffs ask
this Court to reverse the decision of the Court of Appeals
and remand to the circuit court for a determination of
just compensation. Plaintiffs’ request for a determina-
tion of just compensation demonstrates that the nature
of their claim is a taking without just compensation, not
a deprivation of property without due process of law.
Therefore, there is no legal basis to conclude that
defendants’ compliance with the GPTA’s notice provi-
sions justifies defendants’ retention of the surplus pro-
ceeds.

C. OVERVIEW OF TAKINGS JURISPRUDENCE AND

PLAINTIFFS’ TAKINGS CLAIM

The Fifth Amendment of the United States Consti-

tution, as applied to the states through the Fourteenth
Amendment, provides, in relevant part: “[N]or shall
private property be taken for public use, without just
compensation.”51
Comparatively, Michigan’s Takings Clause provides,
in relevant part:
Private property shall not be taken for public use
without just compensation therefore being first made or
secured in a manner prescribed by law. If private property
consisting of an individual’s principal residence is taken

of foreclosure if the foreclosing governmental unit failed to comply with

due process when providing notice to owners.
51
US Const, Am V; US Const, Am XIV; see AFT Mich v Michigan, 497
Mich 197, 217; 866 NW2d 782 (2015) (“The Fifth Amendment is applied
to the states through the Fourteenth Amendment.”), citing Chicago,
B & Q R Co v Chicago, 166 US 226, 241; 17 S Ct 581; 41 L Ed 979 (1897).
454 505 MICH 429 [July
OPINION OF THE COURT

for public use, the amount of compensation made and

determined for that taking shall be not less than 125% of
that property’s fair market value, in addition to any other
reimbursement allowed by law. . . .
“Public use” does not include the taking of private
property for transfer to a private entity for the purpose of
economic development or enhancement of tax revenues.
Private property otherwise may be taken for reasons of
public use as that term is understood on the effective date
of the amendment to this constitution that added this
paragraph.[52]

While we draw on authority discussing and inter-

preting both clauses, we must keep in mind that
Michigan’s Takings Clause has been interpreted to
afford property owners greater protection than its
federal counterpart when it comes to the state’s ability
to take private property for a public use under the
power of eminent domain.53
Plaintiffs, as the aggrieved property owners, have
filed this inverse-condemnation action alleging that
defendants have taken plaintiffs’ properties without
just compensation. A “taking” for purposes of inverse
condemnation means that the government has perma-
nently deprived the property owner of any possession
or use of the property without the commencement of
formalized condemnation proceedings.54 When such a

52
Const 1963, art 10, § 2.
53
Compare Kelo v New London, Conn, 545 US 469; 125 S Ct 2655;
162 L Ed 2d 439 (2005) (holding that the government’s condemnation
and transfer of private property to a private entity to facilitate economic
development was a permissible “public use” under the Fifth Amend-
ment’s Takings Clause), with Wayne Co v Hathcock, 471 Mich 445; 684
NW2d 765 (2004) (holding that a similar condemnation and transfer
was not a permissible “public use” under Michigan’s Takings Clause).
54
United States v Clarke, 445 US 253, 257; 100 S Ct 1127; 63 L Ed 2d
373 (1980) (explaining that the property owner’s right to bring an
2020] RAFAELI V OAKLAND CO 455
OPINION OF THE COURT

taking occurs, the property owner is entitled to just

compensation for the value of the property taken.55 The
government’s seizure of real property is the clearest
form of a taking requiring just compensation.56 But a
taking can, and often does, encompass more than just
the physical deprivation of real, tangible property; it
also includes the government’s interference with one’s
personal, intangible property.57
In order to assert a takings claim of this nature, a
claimant must first establish a vested property right
under state law.58 “Because the Constitution protects
rather than creates property interests, the existence of
a property interest is determined by reference to exist-
ing rules or understandings that stem from an inde-
pendent source such as state law.”59 Plaintiffs allege
inverse-condemnation action is derived from “the self-executing charac-
ter of the constitutional provision with respect to compensation”)
(quotation marks and citation omitted).
55
Hart v Detroit, 416 Mich 488, 494; 331 NW2d 438 (1982) (discussing
inverse-condemnation actions under Michigan law).
56
Horne v Dep’t of Agriculture, 576 US 350, 357; 135 S Ct 2419;
2425-2426; 192 L Ed 2d 388 (2015) (explaining that a “classic” or per se
taking occurs when the government directly appropriates private prop-
erty for its own use).
57
AFT Mich, 497 Mich at 218 (“The term ‘taking’ can encompass
governmental interference with rights to both tangible and intangible
property.”), citing Ruckelshaus v Monsanto Co, 467 US 986, 1003; 104
S Ct 2862; 81 L Ed 2d 815 (1984) (“[I]ntangible property rights protected
by state law are deserving of the protection of the Taking Clause . . . .”);
see also 1 Cooley, General Principles of Constitutional Law in the United
States (1880), p 336 (explaining that the federal Takings Clause protects
“anything of value which the law recognizes as such, and in respect to
which the owner is entitled to a remedy against any one who may
disturb him in its enjoyment,” regardless of “whether the property be
tangible or intangible”).
58
In re Certified Question, 447 Mich 765, 788; 527 NW2d 468 (1994)
(Fun ‘N Sun RV, Inc v Michigan).
59
Phillips v Washington Legal Foundation, 524 US 156, 164; 118 S Ct
1925; 141 L Ed 2d 174 (1998) (quotation marks and citation omitted).
456 505 MICH 429 [July
OPINION OF THE COURT

that they have a cognizable, vested property right to

the surplus proceeds that result from the tax-
foreclosure sale of their properties under Michigan law
that is protected by Michigan’s Takings Clause.
Our “primary objective” in interpreting a constitu-
tional provision such as our state’s Takings Clause is
“to determine the text’s original meaning to the ratifi-
ers, the people, at the time of ratification.”60 This Court
has held that “the whole of art 10, § 2 has a technical
meaning that must be discerned by examining the
‘purpose and history’ of the power of eminent do-
main.”61 Accordingly, we must canvass the body of law
so that we may ascertain the “common understanding”
of Article 10, § 2 and the property rights protected
thereunder.62

1. A HISTORICAL REVIEW OF CLAIMS FOR SURPLUS PROCEEDS

FOLLOWING A TAX-FORECLOSURE SALE

This is not the first time a former property owner

has made a claim for the surplus proceeds that result
from the tax-foreclosure sale of the owner’s property.
In People ex rel Seaman v Hammond, the plaintiff,
referred to as the “relator,” purchased land in
October 1840 that was sold to satisfy the 1837 taxes.63
The relator received the county treasurer’s certificate
of sale, which, according to statute, entitled the “pur-
chaser” to the deed to the land within two years of the
sale (October 1842) unless the land was redeemed.
Before the relator became entitled to the deed, how-
ever, the land was sold again in August 1842 to satisfy

60
Hathcock, 471 Mich at 468.
61
Id. at 471.
62
Id.
63
People ex rel Seaman v Hammond, 1 Doug 276 (Mich, 1844).
2020] RAFAELI V OAKLAND CO 457
OPINION OF THE COURT

the 1838 taxes, this time producing a surplus. Accord-

ing to the statute, the surplus was to be deposited in
the state treasury to the credit of the “owner or
claimant” of the land. After the redemption period
expired for the first sale, the relator presented his deed
for the land and demanded the surplus proceeds from
the second sale, but he was refused. This Court held
that the relator, as the purchaser of the land, was not
entitled to receive the surplus proceeds because, under
the statute, he was not the owner or claimant of the
land at the time of the sale, explaining, in relevant
part:
In that statute, whenever mention is made of the
person who buys land at a tax sale, he is denominated the
purchaser, and no title whatever to the land sold, vests in
him, until, at the expiration of two years, he receives the
treasurer’s deed, “which conveyance,” says the statute,
“shall vest in the person who receives it, an absolute
estate in fee simple.” Prior to that conveyance, he has only
a lien upon the land for the repayment of the amount of
the tax paid, with twenty per cent interest; he has no right
to interfere with the possession of the owner; he cannot
enter upon the land for any purpose whatever, nor can he
control the rents and profits.

* * *

It is perfectly clear that the individual who has the

legal title to the land at the time of the tax sale, is the
owner, entitled, under the statute, to the surplus money, if
any there be.[64]

Thirty-seven years later, the United States Supreme

Court, in United States v Taylor, addressed whether a
federal statute, which permitted the federal govern-
ment to conduct tax sales to recover delinquent federal

64
Id. at 279-280.
458 505 MICH 429 [July
OPINION OF THE COURT

tax debts, gave property owners a right to claim the

surplus proceeds that resulted from the tax sales.65 The
Court in Taylor concluded that the statute allowed for
the recovery of the surplus proceeds. Three years later,
the Court followed Taylor in United States v Lawton.66
In Lawton, the appellee’s property was seized for a tax
delinquency of $88, which grew to $170.50 after inter-
est, penalties, and costs. The board of tax commission-
ers bought the land on behalf of the United States in
satisfaction of the appellee’s tax debt. The property
was “struck off” for $1,100, leaving a total of $929.50 in
excess of the tax debt. The tax debtor sought the
surplus but was refused. The Court held that the tax
debtor was entitled to the surplus proceeds, stating:
The land in the present case having been “struck off for”
and “bid in” for the United States at the sum of $1,100, we
are of [the] opinion that the surplus of that sum, beyond
the $170.50 tax, penalty, interest, and costs, must be
regarded as being in the treasury of the United States,
under the provisions of section 36 of the act of 1861, for the
use of the owner, in like manner as if it were the surplus
of purchase money received by the United States from a
third person on a sale of the land to such person for the
non-payment of the tax. It was unnecessary to go through
any form of paying money out of the treasury to any officer
and then paying it in again to be held for the owner of the
land. But, so far as such owner is concerned, the surplus
money is set aside as his as fully as if it had come from a
third person. If a third person had bid $1,099 in this case,
there would have been a surplus of $928.50 paid into the
treasury and held for the owner. It can make no difference
that the United States acquired the property by bidding

65
United States v Taylor, 104 US 216, 217-218; 26 L Ed 721 (1881).
Although we decide this case based on our state Constitution, we can
look for guidance in the decisions of the United States Supreme Court
regarding surplus proceeds and the federal Takings Clause.
66
United States v Lawton, 110 US 146; 3 S Ct 545; 28 L Ed 100 (1884).
2020] RAFAELI V OAKLAND CO 459
OPINION OF THE COURT

one dollar more. To withhold the surplus from the owner

would be to violate the fifth amendment to the constitution,
and deprive him of his property without due process of law
or take his property for public use without just compensa-
tion. If he affirms the propriety of selling or taking more
than enough of his land to pay the tax and penalty and
interest and costs, and applies for the surplus money, he
must receive at least that.[67]

The Supreme Court later clarified the holding of

Lawton in Nelson v City of New York.68 In Nelson, the
city of New York foreclosed on properties for water
charges that went unpaid for four years. As in Lawton,
the delinquencies were far lower than the value of the
properties, yet the city kept the surplus proceeds after
the properties were sold.69 The property owners chal-
lenged the city’s retention of these surplus proceeds
under the city’s tax-lien foreclosure statute. The Court
concluded that it was undisputed that the statutory
notice provisions were complied with and that the
application of the statute did not deprive the plaintiffs
of procedural due process.70 The Court then turned to
and rejected the plaintiffs’ takings claim. The Court
explained that the plaintiffs’ reliance on Lawton was
inappropriate because the takings claim asserted in

67
Id. at 149-150 (emphasis added).
68
Nelson v City of New York, 352 US 103; 77 S Ct 195; 1 L Ed 2d 171
(1956).
69
The water charges for the first parcel amounted to $65. The first
parcel’s property value was assessed at $6,000, and it ultimately sold for
$7,000. The water charges for the second parcel amounted to $814.50.
The second parcel’s property value was assessed at $46,000, but the city
acquired title to that parcel and retained it. Id. at 105-106.
70
Id. at 108-109 (“We conclude . . . that the City having taken steps to
notify appellants of the arrearages and the foreclosure proceedings and
their agent having received such notices, its application of the statute
did not deprive appellants of procedural due process.”). The Court also
rejected the plaintiffs’ equal-protection challenge. Id. at 109.
460 505 MICH 429 [July
OPINION OF THE COURT

Lawton was premised on a statutory right to the

proceeds. The statute in Lawton required that the
surplus proceeds be paid to the former property owner,
thus rendering the government’s failure to return
those surplus proceeds an unconstitutional taking. The
statute in Nelson, in contrast, did not require the
surplus proceeds to be paid back to the property owner.
Still, the city’s statute provided a property owner a
path to obtain the surplus proceeds from the sale.
Specifically, the statute permitted a property owner to
file a timely answer in the foreclosure proceeding
asserting an interest in the property that exceeded the
tax debt. Upon proof of the owner’s allegation, a
separate sale would be directed so that the owner could
receive the surplus.71 Because the plaintiffs failed to
avail themselves of this opportunity, the Court con-
cluded that they were not entitled to relief. The Court
explained:
What the City of New York has done is to foreclose real
property for charges four years delinquent and, in the
absence of timely action to redeem or to recover any
surplus, retain the property or the entire proceeds of its
sale. We hold that nothing in the Federal Constitution
prevents this where the record shows adequate steps were
taken to notify the owners of the charges due and the
foreclosure proceedings.[72]

Significantly, Seaman, Lawton, and Nelson all ad-

dress a former property owner’s statutory right to
recover the surplus proceeds. Seaman recognized that
the owner or claimant of the land at the time of the
tax-foreclosure sale had a statutory right to recover the
surplus. Consistent with Seaman, Lawton not only
recognized this statutory right but also made it clear

71
Id. at 110 & n 10.
72
Id. at 110 (emphasis added).
2020] RAFAELI V OAKLAND CO 461
OPINION OF THE COURT

that a Takings Clause violation will arise when a

tax-sale statute grants a former owner an independent
property interest in the surplus proceeds and the
government fails to return that surplus. Nelson, on the
other hand, informs us that no federal Takings Clause
claim will exist when there is a statutory path to
recover the surplus proceeds but the property owners
fail to avail themselves of that procedure. Read to-
gether, Lawton and Nelson establish that the Takings
Clause under the United States Constitution may
afford former property owners a remedy when a tax-
sale statute provides the divested property owner an
interest in the surplus proceeds and the government
does not honor that statutory interest. What Seaman,
Lawton, and Nelson do not tell us, however, is what
occurs when the statutes governing foreclosure make
no mention of, or expressly preclude, a divested prop-
erty owner’s right to the surplus proceeds, but the
divested property owner establishes a property right to
the surplus proceeds through some other legal source,
such as the common law.73 In that instance, the failure
to provide the divested property owner an avenue for
recovering the surplus proceeds would produce an
identical result to Lawton: “Property to which an
individual is legally entitled has been taken without
recourse.”74 Michigan’s statutory scheme under the
GPTA does not recognize a former property owner’s

73
And even if those cases had directly addressed the issue presented
here, they would provide only helpful guidance; our decision interpret-
ing Michigan’s Constitution would not be bound by them.
74
Coleman v Dist of Columbia, 70 F Supp 3d 58, 80 (D DC, 2014),
citing Lawton, 110 US at 149; see also Clifford, Massachusetts Has A
Problem: The Unconstitutionality of the Tax Deed, 13 U Mass L Rev 274,
287 (2018) (“In summary, the Coleman court recognized that once a state
recognizes a property interest in the taxpayer, it cannot summarily
remove that interest.”).
462 505 MICH 429 [July
OPINION OF THE COURT

statutory right to collect these surplus proceeds.75

Therefore, we must determine whether plaintiffs have
a vested property right to these surplus proceeds
through some other legal source, such as the common
law.

2. VESTED PROPERTY RIGHTS UNDER THE COMMON LAW

Like the founders of our nation, Michigan has his-

torically held property rights in the highest regard.
Former Michigan Supreme Court Justice Thomas M.
Cooley, one of our nation’s preeminent jurists and
learned scholars, wrote that the “right to private
property is a sacred right; . . . it was the old fundamen-
tal law, springing from the original frame and consti-
tution of the realm.”76
[P]roperty . . . is recognized as such by the law, and noth-
ing else is or can be. Property and law are born and must
die together. Before the laws, there was no property; take
away the laws, all property ceases.[77]

Drawing on Sir William Blackstone, Justice Cooley

further recognized that the Magna Carta “guaranteed”
the protection of private property against government
overreach.78 Just as the Magna Carta guaranteed prop-
erty owners due process of law, so too did the sacred
text limit the King’s ability to take his subject’s prop-
erty, real or personal, under principles of eminent

75
See MCL 211.78m(8)(h) (directing that any surplus proceeds from
the tax-foreclosure sale be transferred into the county’s general fund).
76
2 Cooley, Constitutional Limitations (8th ed), p 745 (quotation
marks and citation omitted).
77
Cooley, General Principles, p 315 (quotation marks and citation
omitted).
78
Cooley, Constitutional Limitations, pp 733-734, citing 4 Blackstone,
Commentaries on the Laws of England, p *424.
2020] RAFAELI V OAKLAND CO 463
OPINION OF THE COURT

domain.79 Thus, it is without surprise that private-

property rights have been protected from unlawful
government takings in every version of this state’s
Constitution.80
“This state’s common law is adopted from England,
and to identify such law this Court may consider origi-
nal English cases and authorities.”81 Our review of
English common law supports the notion that an
owner of real or personal property has a right to any
surplus proceeds that remain after property is sold to
satisfy a tax debt. Just as the Magna Carta protected
property owners from uncompensated takings, it also
recognized that tax collectors could only seize property
to satisfy the value of the debt payable to the Crown,
leaving the property owner with the excess.82 In fact,

79
See Magna Carta, Grant 39 (1215) (“No freeman shall be . . . dis-
seised . . . unless by the lawful judgment of his peers, or by the law of the
land.”); see also Horne, 576 US at 358 (discussing the history of the
federal Takings Clause going as far back as the Magna Carta and making
no distinction between real or personal private property); Silver Creek
Drain Dist v Extrusions Div, Inc, 468 Mich 367, 373, 374 & n 6; 663 NW2d
436 (2003) (explaining that the sovereign’s power of eminent domain and
its “ancient provenance” dates back to the Magna Carta); Peterman v
Dep’t of Natural Resources, 446 Mich 177, 186-187 & 187 n 14; 521 NW2d
499 (1994) (discussing the history of eminent domain in America).
80
See Const 1835, art 1, § 19; Const 1850, art 18, § 14; Const 1908,
art 13, § 1; Const 1963, art 10, § 2.
81
People v Woolfolk, 497 Mich 23, 25; 857 NW2d 524 (2014) (citations
omitted).
82
See Johnson, The Ancient Magna Carta and the Modern Rule of Law:
1215 to 2015, 47 St Mary’s L J 1, 47 (2015), citing McKechnie, Magna
Carta: A Commentary on the Great Charter of King John (Glasgow: James
Maclehose & Sons, 2d ed, 1914), p 322. Johnson explains that when a
man died, officers would seek collection of the deceased’s debts. Ancient
Magna Carta, 47 St Mary’s L J at 47. However, these officials would often
seize everything, sell the decedent’s property for an amount far in excess
of the debt, and refuse to disgorge the surplus to the decedent’s heirs. Id.
As a protection against such abuse practices, Clause 26 of the Magna
464 505 MICH 429 [July
OPINION OF THE COURT

although the “mode of collecting the land tax in

England was by distress,” it was a well-recognized
principle that any excess property sold to satisfy a tax
debt would be paid back to the owner.83 Further,
Blackstone explained that in the context of bailments,
whenever the government seized property for delin-
quent taxes, it did so subject to “an implied contract in
law” to either return the property if the tax debt was
paid or “to render back the overplus” if the property
was sold to satisfy the delinquent taxes.84
The right to collect the surplus proceeds was also
firmly established in the early years of Michigan’s
statehood. In his treatise on the Law of Taxation,
Justice Cooley discusses the various methods that
states used to save the surplus proceeds for the former
owner when that owner’s land was sold for unpaid
taxes.85 The first of these methods was to sell the
distressed land for payment of delinquent taxes, and if
the accepted bid exceeded the delinquency, the surplus
would be deposited with the local treasury “for the
benefit of the party, who shall show his right.”86 This is
precisely what occurred in Seaman. While Seaman
Carta required that “the value of the goods seized had to approximate the
value of the debt[,] and the process had to be superintended by worthy
men whose function it was to form a check on the actions of the sheriff’s
officers.” Id. (quotation marks and citation omitted); see also Martin,
59 Va at 136 (“The summary methods employed in England in early times
for the collection of debts to the Crown seem to have been turned to
purposes of oppression, and . . . [the] Magna Charta provided for their
restraint.”).
83
Martin, 59 Va at 136-137 (explaining that while land was typically
only taken to satisfy tax debts when personal property was insufficient
to satisfy the debt, any surplus resulting from the sale of the property
taken, real or personal, would be paid back to the owner).
84
2 Blackstone, Commentaries on the Laws of England, p *452.
85
Cooley, Law of Taxation (3d ed), p 952.
86
Id. As support for this first method, Justice Cooley cites the
Supreme Court’s decision in Lawton for the notion that if land was sold
2020] RAFAELI V OAKLAND CO 465
OPINION OF THE COURT

was resolved on then-existing statutory authority, this

Court’s discussion regarding a property owner’s right
to collect surplus proceeds is valuable in defining the
nature and scope of that right:
The surplus money produced by the tax sale, is the
property of the person who has the legal title to the land at
the time of the sale, and the moment the amount is
ascertained and passed to his credit in the books of the
treasurer, it is as absolutely his as though it were in his
own keeping; and the right is personal—as unqualifiedly
so as the ownership of any chattel; and although the
surplus spoken of is produced by the sale of land, yet the
right to receive and control it, no more follows the title to
the land, than does the ownership of the cattle and
farming utensils that a man may happen to have on his
farm when it is sold for taxes, and the purchaser may, with
as much propriety, claim a right to the latter as the
former.[87]

Notably, at the time Seaman was decided, a property

owner’s right to redeem his property continued after
the foreclosure sale. That is, it was commonly under-
stood that the delinquent taxpayer would continue to
be the legal owner of the property at the time of the
foreclosure sale and thus would be entitled to any
surplus proceeds produced from the sale as the “owner
or claimant” of the land. This is vastly different from
the current version of the GPTA, in which a property
owner’s interest in the property is extinguished well
before the tax-foreclosure sale. Thus, a fair reading of
Seaman demonstrates that in the early years of this
state, it was commonly understood that the delinquent
taxpayer, not the foreclosing entity, continued to own
to the United States for unpaid federal taxes, the United States
remained liable to the former owner for any surplus. Id. at 952 & n 1,
citing Lawton, 110 US 146.
87
Seaman, 1 Doug at 281.
466 505 MICH 429 [July
OPINION OF THE COURT

the land at the time of the tax-foreclosure sale and

would have been entitled to any surplus, which no
more followed title to the land than the former owner’s
other personal property.
At the same time that it was common for any surplus
proceeds to be returned to the former property owner, it
was also generally understood that the government
could only collect those taxes actually owed and nothing
more. Justice Cooley explained that excessive tax levies
were “beyond the jurisdiction of the officers” charged
with collecting taxes and that even de minimis amounts
in excess of the taxes owed were impermissible.88 This
Court recognized a similar principle in 1867, stating
that “[n]o law of the land authorizes the sale of
property for any amount in excess of the tax it is legally
called upon to bear.”89 Indeed, any sale of property for
unpaid taxes that was in excess of the taxes owed was
often rendered voidable at the option of the land-
owner.90 Rather than selling all of a person’s land and
risk the sale being voided, officers charged with selling
land for unpaid taxes often only sold that portion of the
land that was needed to satisfy the tax debt.91 That is,
early in Michigan’s statehood, it was commonly under-
stood that the government could not collect more in

88
Cooley, Law of Taxation, pp 590-591 (“If the line which the legisla-
ture has established be once passed, we know of no boundary to the
discretion of the assessors.”) (quotation marks and citation omitted).
89
Case v Dean, 16 Mich 12, 19 (1867).
90
Cooley, Law of Taxation, p 953 (“A sale of the whole when less would
pay the tax would be such a fraud on the law as to render the sale
voidable at the option of the land-owner . . . .”).
91
Id. at 952-958. Indeed, this was another method discussed by
Justice Cooley to ensure that any “surplus moneys” remained with the
landowner after the property was sold. Id. at 952-953. The other method
was to require that a lien be placed on the land holding the purchaser
accountable to pay the excess back to the original owner. Id. at 952.
2020] RAFAELI V OAKLAND CO 467
OPINION OF THE COURT

taxes than what was owed, nor could it sell more land
than necessary to collect unpaid taxes.
Further, in the context of eminent domain, it was
axiomatic that the government shall take no more
property than necessary for the particular public use for
which the taking was done. As Justice Cooley stated:
The taking of property must always be limited to the
necessity of the case, and consequently no more can be
appropriated in any instance than the proper tribunal
shall adjudge to be needed for the particular use for which
the appropriation is made. When a part only of a man’s
premises is needed by the public, the necessity for the
appropriation of that part will not justify the taking of the
whole, even though compensation be made therefor. The
moment the appropriation goes beyond the necessity of
the case, it ceases to be justified on the principles which
underlie the right of eminent domain.[92]

This Court has consistently recognized this constitu-

tional precept. Throughout this state’s history, this
Court has held that the government’s takings power is
limited to only that property which is necessary to serve
the public.93

92
Cooley, Constitutional Limitations, p 1147.
93
See Peterman, 446 Mich at 201, 202 n 36 (“As an unnecessary
taking of property, defendant’s actions violated the strict dictates of the
constitutional guarantee that private property may be taken only when
necessary for public purposes.”); Livonia Twp Sch Dist v Wilson, 339
Mich 454, 460; 64 NW2d 563 (1954) (“It is a general principle that the
legislature cannot authorize the taking of property in excess of that
required for public use.”); Cleveland v Detroit, 322 Mich 172, 179; 33
NW2d 747 (1948) (“In acquiring property for public use it is not
permissible for the city to take additional property not necessary for
that public use for private purposes.”); Berrien Springs Water Power Co
v Berrien Circuit Judge, 133 Mich 48, 53; 94 NW 379 (1903) (“[O]nly so
much [land] can be taken as is necessary to the public use.”); Bd of
Health of Portage Twp v Van Hoesen, 87 Mich 533, 537; 49 NW 894
(1891) (“It can never be just to take property, under pretence of public
468 505 MICH 429 [July
OPINION OF THE COURT

Accordingly, these fundamental principles—that the

government shall not collect more taxes than are owed,
nor shall it take more property than is necessary to
serve the public—protect taxpayers and property own-
ers alike from government overreach. These principles
have remained a staple in this state’s jurisprudence well
after the most recent ratification of our Constitution in
1963.94
A property owner’s right to collect the surplus pro-
ceeds from the tax-foreclosure sale of his or her property
has also withstood the most recent ratification of our
Constitution, as exemplified by our decision in Dean v
Dep’t of Natural Resources, which recognized a right to
collect those proceeds under the common-law claim of
unjust enrichment.95 In Dean, the plaintiff-property
owner failed to pay her property taxes for both the city
of Flint and Genesee County in the amount of $230.68
benefit, which is not needed by the public . . . .”), citing Paul v Detroit, 32
Mich 108, 114 (1875) (explaining that the 1850 Michigan Constitution
added a provision requiring juries to determine the necessity of a taking
of private property for public use, as well as the compensation owed for
that taking, because there was “a well founded belief, founded on
experience, that private property was often taken improperly and
without any necessity”).
94
Detroit v Walker, 445 Mich 682, 701-704; 520 NW2d 135 (1994)
(explaining that citizens have a duty to pay their taxes and that the
Legislature may enact procedural schemes “to secure taxes owed”);
Peterman, 446 Mich at 184 (“ ‘[I]t can never be lawful to compel any man
to give up his property, when it is not needed, or to lose it, whether
needed or not, without being made whole.’ ”), quoting Paul, 32 Mich at
119; see also Fidlin v Collison, 9 Mich App 157, 167; 156 NW2d 53 (1967)
(holding that under the GPTA’s provision allowing seizure of personal
property to satisfy unpaid taxes, the city treasurer’s seizure of the
plaintiffs’ personal property valued at $629.32 to satisfy a $10,500 tax
debt was “an excessive distraint” on their property, given that “ ‘[t]he
amount of property distrained must not be excessive and, if it is, the
seizure is illegal’ ”), quoting 84 CJS, Taxation, § 694, p 1371.
95
Dean v Dep’t of Natural Resources, 399 Mich 84; 247 NW2d 876
(1976).
2020] RAFAELI V OAKLAND CO 469
OPINION OF THE COURT

and $146.90, respectively. After the plaintiff failed to

appear at the foreclosure hearing, the court issued a
judgment authorizing the sale of the plaintiff’s prop-
erty at a tax sale and stating that if the property was
sold to the state, the state’s title would become abso-
lute unless the plaintiff timely redeemed the prop-
erty.96 The state successfully bid on the plaintiff’s
property, starting the one-year redemption period for
the plaintiff. During the redemption period, the plain-
tiff paid her delinquent city-property taxes in full but
mistakenly failed to pay her delinquent county-
property taxes. After she failed to timely redeem her
property during the redemption period, the State Trea-
surer deeded the plaintiff’s property to the state, which
received absolute title to the property and then sold it
to a private investor for $10,000. The plaintiff filed an
action against the state, alleging, in relevant part, that
the state had been unjustly enriched by retaining the
$10,000 following the sale of her property. The circuit
court granted summary disposition to the defendant,
but this Court reversed, holding that the plaintiff could
bring her suit for unjust enrichment:
In fact, the events out of which plaintiff’s claim of
unjust enrichment arises occurred subsequent to the de-
fault judgment entered by the Genesee County Circuit
Court: the alleged good-faith attempt at redemption, the
running of the redemption period after this attempt with
plaintiff under the impression that she had in fact re-
deemed her home, the loss of her home, and the sale of the
property by the state for a profit of close to $10,000.[97]

Dean stands for more than just a recognition of the

plaintiff’s right to bring a claim under unjust enrich-

96
Notice of the hearing was published in the newspaper as required
under the former version of the GPTA. Id. at 88, citing MCL 211.66,
repealed by 1999 PA 123.
97
Dean, 399 Mich at 94-95.
470 505 MICH 429 [July
OPINION OF THE COURT

ment for the surplus proceeds. Inherent in Dean’s

holding is Michigan’s protection under our common
law of a property owner’s right to collect the surplus
proceeds that result from a tax-foreclosure sale. A
viable claim for unjust enrichment requires the com-
plaining party to show that the other party retained a
benefit from the complaining party.98 In concluding that
the plaintiff in Dean stated an actionable claim for
unjust enrichment, this Court did not rely on any
statutory right that the plaintiff had to collect the
surplus proceeds. As is the case here, title to the
plaintiff’s property in Dean had already vested with
the state. Without a statutory right, the plaintiff must
have had a common-law right to these surplus pro-
ceeds. Otherwise, her claim of unjust enrichment
would not be actionable because it could not have been
said that the state retained a benefit at her expense. In
sum, Dean supports the proposition that a property
owner has a recognized common-law property right to
the surplus proceeds from a tax-foreclosure sale.99
We conclude that our state’s common law recognizes
a former property owner’s property right to collect the
surplus proceeds that are realized from the tax-
foreclosure sale of property. Having originated as far
back as the Magna Carta, having ingratiated itself into

98
Tkachik v Mandeville, 487 Mich 38, 47-48; 790 NW2d 260 (2010)
(“Unjust enrichment is defined as the unjust retention of money or
benefits which in justice and equity belong to another. No person is
unjustly enriched unless the retention of the benefit would be unjust.”)
(quotation marks and citations omitted).
99
While Dean stands for the proposition that a claim for the surplus
proceeds may be asserted through unjust enrichment, the Court of
Appeals concluded that plaintiffs abandoned their claim of unjust
enrichment by failing to develop it in their briefing below. See Mitcham
v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959) (explaining that a
party’s failure to adequately brief an issue on appeal constitutes
abandonment).
2020] RAFAELI V OAKLAND CO 471
OPINION OF THE COURT

English common law, and having been recognized both

early in our state’s jurisprudence and as late as our
decision in Dean in 1976, a property owner’s right to
collect the surplus proceeds from the tax-foreclosure
sale of his or her property has deep roots in Michigan
common law. We also recognize this right to be “vested”
such that the right is to remain free from unlawful
governmental interference. “To constitute a vested
right, the interest must be something more than such
a mere expectation as may be based upon an antici-
pated continuance of the present general laws; it must
have become a title, legal or equitable, to the present or
future enjoyment of property . . . .”100 As demonstrated
by the discussion earlier, the right to collect these
proceeds was beyond a mere expectancy or claim of
entitlement. It is as much an interest in property as
our kitchen tables; television sets; and, as this Court
observed in Seaman, our cattle and farming utensils.101

100
Fun ’N Sun, 447 Mich at 788 (quotation marks and citation
omitted); Cooley, General Principles, p 320 (“The test of unlawful
interference with property is that vested rights are abridged or taken
away.”) (emphasis added).
101
An often-used metaphor in property law further illustrates this
point. Property rights are commonly referred to as a “bundle of sticks,”
with each stick representing a distinct right defined by state law. United
States v Craft, 535 US 274, 278; 122 S Ct 1414; 152 L Ed 2d 437 (2002)
(“A common idiom describes property as a ‘bundle of sticks’—a collection
of individual rights which, in certain combinations, constitute property.
State law determines only which sticks are in a person’s bundle.”)
(citation omitted). These sticks range from a property owner’s right to
use or enjoy the property, the right to eject others from the property, and
the right to dispose of the property altogether. See Adams v Cleveland-
Cliffs Iron Co, 237 Mich App 51, 57; 602 NW2d 215 (1999) (“The general
concept of ‘property’ comprises various rights—a ‘bundle of sticks,’ as it
is often called—which is usually understood to include ‘[t]he exclusive
right of possessing, enjoying, and disposing of a thing.’ ”), quoting
Black’s Law Dictionary (6th ed), p 1216. Unlawful governmental inter-
ference with even one stick in that bundle constitutes a taking requiring
472 505 MICH 429 [July
OPINION OF THE COURT

Further, the prohibitions against collecting excess

taxes, selling more land than needed to collect such
taxes, and taking more property than necessary to
serve the public all underlie a property owner’s right to
collect the surplus proceeds and were well-established
legal principles before 1963. Therefore, we hold that
the ratifiers would have commonly understood this
common-law property right to be protected under
Michigan’s Takings Clause at the time of the ratifica-
tion of the Michigan Constitution in 1963.102
Having recognized both the existence of this vested
property right at common law and that the ratifiers of
the 1963 Michigan Constitution would have commonly
understood this right to be protected under Michigan’s
Takings Clause at that time, the question now becomes
whether the amendments of the GPTA abrogated this
common-law right.103 If it did, there is no taking here.
The common law “is but the accumulated expres-
sions of the various judicial tribunals in their efforts to
ascertain what is right and just . . . .”104 It is dynamic
and flexible, not static or fixed like statutory law.105 The
just compensation. Our holding today recognizes that the right to collect
any surplus proceeds that result from the sale of a person’s property for
unpaid taxes is one stick in the owner’s bundle of rights, entitled to as
much protection as any other stick in that bundle.
102
Hathcock, 471 Mich at 471.
103
While the bulk of the revisions to the GPTA took place in 1999, the
provision allowing counties to transfer any surplus proceeds to their
general funds, MCL 211.78m(8)(h), was not added until 2006. See 2006
PA 498.
104
Price v High Pointe Oil Co, Inc, 493 Mich 238, 242; 828 NW2d 660
(2013) (quotation marks and citation omitted).
105
Beech Grove Investment Co v Civil Rights Comm, 380 Mich 405,
430; 157 NW2d 213 (1968) (“The common law does not consist of definite
rules which are absolute, fixed, and immutable like the statute
law . . . .”) (quotation marks and citation omitted).
2020] RAFAELI V OAKLAND CO 473
OPINION OF THE COURT

common law is, however, incremental in adapting to

society’s changing circumstances, developing gradu-
ally to reflect our policies, customs, norms, and val-
ues.106 Nonetheless, the Legislature may enact legisla-
tion that abrogates or alters the common law. Of
course, both legislation and the common law are sec-
ondary to our Constitution. Article 3, § 7 of Michigan’s
Constitution provides:
The common law and the statute laws now in force, not
repugnant to this constitution, shall remain in force until
they expire by their own limitations, or are changed,
amended or repealed.[107]

It is clear that our 1963 Constitution protects a

former owner’s property right to collect the surplus
proceeds following a tax-foreclosure sale under Article
10, § 2. This right existed at common law; was com-
monly understood to exist in the common law before the
1963 ratification of our Constitution; and continues to
exist after 1963, as our decision in Dean demonstrates.
Because this common-law property right is constitution-
ally protected by our state’s Takings Clause, the Legis-
lature’s amendments of the GPTA could not abrogate it.
While the Legislature is typically free to abrogate the
common law, it is powerless to override a right protected
by Michigan’s Takings Clause.108

106
Price, 493 Mich at 243 (“The common law is always a work in
progress and typically develops incrementally, i.e., gradually evolving as
individual disputes are decided and existing common-law rules are
considered and sometimes adapted to current needs in light of changing
times and circumstances.”).
107
Const 1963, art 3, § 7 (emphasis added).
108
Nothing in our holding today prevents the Legislature from enact-
ing legislation that would require former property owners to avail
themselves of certain procedural avenues to recover the surplus pro-
ceeds. See, e.g., Nelson, 352 US at 110 & n 10. We only hold that the
Legislature may not write this constitutionally protected vested prop-
474 505 MICH 429 [July
OPINION OF THE COURT
V. APPLICATION

A. DEFENDANTS’ RETENTION OF THE SURPLUS PROCEEDS WAS

AN UNCONSTITUTIONAL TAKING

As the foreclosing governmental unit under the

GPTA, defendants were entitled to seize plaintiffs’
properties to satisfy the unpaid delinquent real-
property taxes as well as any interest, penalties, and
fees associated with the foreclosure and sale of plain-
tiffs’ properties. But defendants could only collect the
amount plaintiffs owed and nothing more. Once defen-
dants foreclosed on plaintiffs’ properties, obtained title
to those properties, and sold them to satisfy plaintiffs’
unpaid taxes, interest, penalties, and fees related to
the foreclosures, any surplus resulting from those sales
belonged to plaintiffs. That is, after the sale proceeds
are distributed in accordance with the GPTA’s order of
priority, any surplus that remains is the property of
plaintiffs, and defendants were required to return that
property to plaintiffs. Defendants’ retention of those
surplus proceeds under the GPTA amounts to a taking
of a vested property right requiring just compensation.
To the extent the GPTA permits defendants to retain
erty right out of existence. See Munn v Illinois, 94 US 113, 134; 24 L Ed
77 (1876) (“A person has no property, no vested interest, in any rule of
the common law. . . . Rights of property which have been created by the
common law cannot be taken away without due process; but the law
itself, as a rule of conduct, may be changed at the will, or even at the
whim, of the legislature, unless prevented by constitutional limitations.”)
(emphasis added); see also Mackin v Detroit-Timkin Axle Co, 187 Mich
8, 13; 153 NW 49 (1915) (“Except as to vested rights, the legislative
power exists to change or abolish existing statutory and common-law
remedies.”) (emphasis added). Further, because this common-law prop-
erty right existed well before 1963, it cannot be said that our Constitu-
tion created this property right; rather, this right was, and still is,
commonly understood to be protected by Michigan’s Takings Clause. See
Phillips, 524 US at 164 (“[T]he Constitution protects rather than creates
property interests . . . .”).
2020] RAFAELI V OAKLAND CO 475
OPINION OF THE COURT

these surplus proceeds and transfer them into the

county general fund, the GPTA is unconstitutional as
applied to former property owners whose properties
were sold at a tax-foreclosure sale for more than the
amount owed in unpaid taxes, interest, penalties, and
fees related to the forfeiture, foreclosure, and sale of
their properties.
Defendants rely on a line of Michigan cases to argue
that plaintiffs held no rights, titles, or interests in their
properties once foreclosure occurs and fee simple title
vests with the state.109 None of these decisions, how-
ever, involved a claim for the surplus proceeds after a
foreclosure sale. Rather, these cases all addressed the
former property owners’ ability to retain or convey an
interest in the land that had been foreclosed. Indeed,
one of these cases even noted that the “primary and
inducing purpose of the legislation was to secure a
portion of the unpaid taxes, rather than nothing, and to
restore lands to a taxpaying basis, instead of supinely
allowing them to accumulate tax delinquencies with no
hope of ever recovering them.”110 In this case, defen-
dants recovered the entire amount of plaintiffs’ tax
debts and more by way of a surplus. Plaintiffs had a
cognizable, vested property right to collect those sur-

109
Krench v Michigan, 277 Mich 168, 179; 269 NW 131 (1936) (holding
that a tax-foreclosure sale divests the former owner of title and vests
title with the state in fee simple with a new chain of title being formed);
James A Welch Co, Inc v State Land Office Bd, 295 Mich 85, 93-95; 294
NW 377 (1940) (holding that after the state received absolute title to
land that was sold for delinquent property taxes, the former owner held
no greater interest in title to the land than any other stranger); Meltzer
v State Land Office Bd, 301 Mich 541, 545; 3 NW2d 875 (1942) (affirming
Krench and Welch and concluding that once absolute title to a tax-
foreclosed property vests with the state, the former owners hold “no
interest in the land at the time of the tax sale”).
110
Welch, 295 Mich at 92 (quotation marks and citation omitted;
emphasis added).
476 505 MICH 429 [July
OPINION OF THE COURT

plus proceeds. This vested right did not simply “van-

ish[] into thin air.”111 In the same way that the foreclo-
sure process does not eliminate the former property
owner’s interest in the personal property that sits on
the foreclosed land, the vesting of fee simple title to the
real property does not extinguish the property owner’s
right to collect the surplus proceeds of the sale. This is
a separate property right that survives the foreclosure
process. Accordingly, like any other creditor, defen-
dants were required to return the surplus.112
We see no reason to recharacterize these surplus
proceeds as public money to be transferred into the
county general fund and used for public purposes
wholly independent of the GPTA without paying just
compensation.113 While plaintiffs’ takings claim was
not compensable until their properties sold for an
amount in excess of their tax debts, that lack of an
immediate right to collect the surplus proceeds does

111
Armstrong v United States, 364 US 40, 48; 80 S Ct 1563; 4 L Ed 2d
1554 (1960) (holding that the government’s “total destruction” of the
value of a lienholder’s lien against government-held property was an
unconstitutional taking).
112
See Lawton, 110 US at 150 (“[S]o far as such owner is concerned,
the surplus money is set aside as his as fully as if it had come from a
third person. . . . It can make no difference that the United States
acquired the property by bidding one dollar more.”); Armstrong, 364 US
at 48 (“[T]he Government for its own advantage destroyed the value of
the liens, something that the Government could do because its property
was not subject to suit, but which no private purchaser could have
done.”); see also Bank of America, NA v First American Title Ins Co, 499
Mich 74, 91; 878 NW2d 816 (2016) (“No one disputes that the mortgagee
is entitled to recover only his debt. Any surplus value belongs to others,
namely, the mortgagor or subsequent lienors.”) (quotation marks and
citation omitted).
113
See Webb’s Fabulous Pharmacies, Inc v Beckwith, 449 US 155, 164;
101 S Ct 446; 66 L Ed 2 358 (1980) (“[A] State, by ipse dixit, may not
transform private property into public property without compensa-
tion . . . .”).
2020] RAFAELI V OAKLAND CO 477
OPINION OF THE COURT

not mean that plaintiffs had no right to collect the

surplus proceeds at all.114 Indeed, a former property
owner only has a right to collect the surplus proceeds
from the tax-foreclosure sale; that is, a former property
owner has a compensable takings claim if and only if
the tax-foreclosure sale produces a surplus. Once the
sale produces a surplus, the former owner may make a
claim for the surplus proceeds. Again, this holds true
even though the former owner no longer holds title to
the property.
Moreover, we are unmoved by caselaw from other
states that have addressed the disposition of surplus
proceeds. Some courts that have confronted the issue
whether a cognizable takings claim can be made for the
surplus proceeds have only addressed the issue in the
context of the federal Takings Clause.115 Unlike those
courts, however, our holding speaks to Michigan’s
Takings Clause, which this Court has, on occasion,
interpreted as offering broader protection to property
owners.116 Other courts have limited the inquiry to
whether there is statutory authority for a property
owner to collect the surplus proceeds, not whether a

114
Id. at 162 (explaining that creditors of a deposit account, whose
statutory right to collect a portion of the account’s interest did not
accrue until distribution of the account was ordered, had a cognizable
property right despite that right not being immediately compensable).
115
See, e.g., Ritter v Ross, 207 Wis 2d 476, 484-485; 558 NW2d 909
(1996) (analyzing the former property owners’ claim for the surplus
proceeds under the federal Takings Clause and holding that no taking
under that clause occurred), cert den 522 US 995 (1997); Auburn v
Mandarelli, 320 A2d 22, 25 (Me, 1974) (same).
116
See AFT Mich, 497 Mich at 217 & n 9 (“Although the courts of this
state have applied the state and federal Takings Clauses coextensively
in many situations, this Court has found that [Michigan’s Takings
Clause] offers broader protection than [the federal Takings Clause].”)
(citation omitted), comparing Kelo, 545 US 469, with Hathcock, 471
Mich 445.
478 505 MICH 429 [July
OPINION OF THE COURT

right existed within their states’ common law.117 More-

over, a few courts have addressed the takings issue in
the context of other areas of jurisprudence, including
tax collection, forfeiture, and due process.118 That said,
we note that two states, Vermont and New Hampshire,
have recognized the government’s obligation to return
any surplus proceeds to the former owner after a
tax-foreclosure sale and that the failure to return those
proceeds is a taking under their state constitutions.119

117
See, e.g., Kelly v Boston, 348 Mass 385, 388; 204 NE2d 123 (1965)
(“We think it is clear from the above history of the tax statutes that the
Legislature intended the surplus from a sale of land taken for nonpay-
ment of taxes, on which the right of redemption has been foreclosed in
the Land Court, to belong to the municipality.”); Automatic Art, LLC v
Maricopa Co, unpublished opinion of the United States District Court
for the District of Arizona, issued March 18, 2010 (Case No. CV
08-1484-PHX-SRB), pp 5-7 (holding that, under Arizona’s statutory
scheme governing tax foreclosures, the government’s retention of the
surplus proceeds is not an unconstitutional taking because “Arizona law
does not provide for the recovery of any funds by a previous owner after
a tax sale”); Reinmiller v Marion Co, unpublished opinion of the United
States District Court for the District of Oregon, issued October 16, 2006
(Case No. CV 05-1926-PK), pp 2-4 (holding the same under Oregon law).
118
See, e.g., Balthazar v Mari Ltd, 301 F Supp 103, 105 n 6 (ND Ill,
1969) (“Rather than taking private property for a public purpose, Illinois
is here collecting taxes which are admittedly overdue.”), aff’d 396 US
114 (1969); Sheehan v Suffolk Co, 67 NY2d 52, 60; 490 NE2d 523 (1986)
(“There is no constitutional prohibition against such a full forfeiture.”);
Miner v Clinton Co, 541 F3d 464, 475 (CA 2, 2008) (“The retention of any
surplus from a tax auction is constitutional because there was no
violation of plaintiffs’ right to due process related to the notices of
foreclosure.”).
119
See Bogie v Barnet, 129 Vt 46, 55; 270 A2d 898 (1970) (“No
justification for the withholding of this excess from the plaintiff, derived
as it was from the compelled sale of his land, has been demonstrated. Its
retention by the town amounts to an unlawful taking for public use
without compensation, contrary to . . . the Vermont Constitution.”);
Polonsky v Bedford, 173 NH 226, 239; 238 A3d 1102 (2020) (Case No.
2019-0339); slip op at 12 (holding that, under New Hampshire’s Takings
Clause, “the taking of property without just compensation is unconsti-
2020] RAFAELI V OAKLAND CO 479
OPINION OF THE COURT

Similarly, we hold that defendants were required to

return the surplus proceeds to plaintiffs and that
defendants’ failure to do so constitutes a government
taking under the Michigan Constitution entitling
plaintiffs to just compensation.

B. DEFENDANTS CANNOT RELY ON THE TAXING POWER TO

JUSTIFY THEIR RETENTION OF THE SURPLUS PROCEEDS

Defendants also contend that their actions are sim-

ply a matter of tax collection and that “there can be no
taking when a Michigan county foreclosures on a
property for the nonpayment of taxes.”120 The Legisla-
ture undoubtedly has the inherent power to levy taxes,
and cities and villages also have the authority to
impose taxes for public purposes.121 We recognize that
municipalities rely heavily on their citizens to timely
pay real-property taxes so that local governments have
a source of revenue for their operating costs.122 Nothing
in this opinion impedes defendants’ right to hold citi-
tutional, even when the municipality has taken the property by tax deed
due to the former owner’s failure to pay taxes,” and that the munici-
pality’s failure to return any excess proceeds to the former owner is an
unconstitutional taking), citing Thomas Tool Servs, Inc v Croydon, 145
NH 218, 220; 761 A2d 439 (2000).
120
Defendants’ Brief on Appeal (April 3, 2019) at 14.
121
Const 1963, art 9, § 1 (“The legislature shall impose taxes sufficient
with other resources to pay the expenses of state government.”); Const
1963, art 7, § 21 (“Each city and village is granted power to levy other
taxes for public purposes, subject to limitations and prohibitions pro-
vided by this constitution or by law.”).
122
Walker, 445 Mich at 702 (“Traditionally, the property tax—and in
particular, the tax on real property—has been the mainstay of municipal
revenue-gathering—the largest single source of municipal revenue.”)
(quotation marks and citation omitted); see also Tax Liens, 75 Ind L J at
756 (explaining that property taxes are the primary source of revenue
for local governments and that “[t]he failure to collect even a small
portion of property taxes can have a dramatic impact on local govern-
ments”).
480 505 MICH 429 [July
OPINION OF THE COURT

zens accountable for failing to pay property taxes by

taking citizens’ properties in satisfaction of their tax
debts. What defendants may not do under the guise of
tax collection is seize property valued far in excess of the
amount owed in unpaid taxes, penalties, interest, and
fees and convert that surplus into a public benefit. The
purpose of taxation is to assess and collect taxes owed,
not appropriate property in excess of what is owed.
Defendants’ ability to take plaintiffs’ properties was
limited by what plaintiffs actually owed as a result of
failing to pay their taxes. Thus, defendants’ retention of
the surplus proceeds amounts to a taking of plaintiffs’
properties far in excess of plaintiffs’ tax debts that
cannot be justified as a valid form of tax collection.
Moreover, “the power of taxation should not be con-
fused with the power of eminent domain . . . .”123 As
Justice Cooley has explained, whereas taxation re-
quires citizens to bear the burden of public expenses
equally and proportionally, “something exceptional” is
taken under the government’s exercise of eminent
domain such that apportionment cannot be achieved,
thus requiring compensation “of a pecuniary nature” to
the property owner.124 By retaining the surplus pro-
ceeds and transferring them into the county general
fund to be used for public purposes, defendants are
forcing delinquent taxpayers to contribute to the gen-
eral government revenues beyond their fair share. This
is not simply an adjustment of “the benefits and
burdens of economic life to promote the common
good.”125 Rather, this confiscation of the sale proceeds

123
Koontz v St Johns River Water Mgt Dist, 570 US 595, 617; 133 S Ct
2586; 186 L Ed 2d 697 (2013) (quotation marks and citation omitted).
124
Cooley, General Principles, pp 333-334.
125
See Penn Central Transp Co v City of New York, 438 US 104, 124; 98
S Ct 2646; 57 L Ed 2d 631 (1978); see also AFT Mich, 497 Mich at 218
2020] RAFAELI V OAKLAND CO 481
OPINION OF THE COURT

in excess of what is actually owed requires delinquent

taxpayers “ ‘alone to bear public burdens which, in all
fairness and justice, should be borne by the public as a
whole.’ ”126 Michigan’s Takings Clause was “ ‘adopted
for the protection of and security to the rights of the
individual as against the government . . . .’ ”127 To per-
mit such forced contributions to stand would under-
mine the very rights our Takings Clause seeks to
protect.
Put simply, defendants’ argument that the taxing
power justifies their retention of the surplus proceeds
from tax-foreclosure sales over and above property own-
ers’ tax liabilities is an exceedingly poor attempt at
disguising a physical taking of property requiring just
compensation as an arbitrary and disproportionate
tax.128

C. JUST COMPENSATION IS EQUAL TO THE AMOUNT OF SURPLUS

PROCEEDS GENERATED FROM THE TAX-FORECLOSURE SALE

Having found an unconstitutional taking, we must

next decide the method by which just compensation
(“[G]overnmental action creating general burdens or liabilities, i.e.,
merely requiring citizens to expend monies for valid public purposes and
expenditures, typically will not form the basis for a cognizable taking
claim.”).
126
Webb’s Fabulous Pharmacies, 449 US at 163, quoting Armstrong,
364 US at 49.
127
Bott v Natural Resources Comm, 415 Mich 45, 81 n 43; 327 NW2d
838 (1982), quoting Pearsall v Eaton Co Bd of Supervisors, 74 Mich 558,
561; 42 NW 77 (1889).
128
See Acker v Comm’r of Internal Revenue, 258 F2d 568, 574 (CA 6,
1958) (“[D]espite the breadth of the taxing power conferred by the
Constitution, there might arise ‘a case where, although there was a
seeming exercise of the taxing power, the act complained of was so
arbitrary as to constrain to the conclusion that it was not the exertion of
taxation but a confiscation of property; that is, a taking of the same in
482 505 MICH 429 [July
OPINION OF THE COURT

may be determined. This Court has stated that the

remedy for a government taking is “just compensation
for the value of the property taken.”129 As our holding
today makes clear, the property “taken” is the surplus
proceeds from the tax-foreclosure sale of plaintiffs’
properties to satisfy their tax debts. While it could be
said that plaintiffs have received at least some com-
pensation, given that they are no longer liable for their
delinquent taxes,130 satisfaction of plaintiffs’ tax debts
cannot constitute just compensation for the value of
the property taken, i.e., the surplus proceeds. There-
fore, plaintiffs are entitled to the value of those surplus
proceeds.
Defendants submit that if plaintiffs have, in fact,
pleaded a viable takings claim, then the amount of
compensation due could be more than the surplus
proceeds from the tax-foreclosure sale. Plaintiffs
make this point in their postargument briefing, argu-
ing that a full remedy for an unconstitutional taking
requires property owners to be put in as good of
position had their properties not been taken at all.
That is, while the surplus proceeds from a tax-
foreclosure sale are some evidence of the value of the
violation of the 5th Amendment[.]’ ”), quoting Brushaber v Union Pacific
R Co, 240 US 1, 24-25; 36 S Ct 236; 60 L Ed 493 (1916).
129
Hart, 416 Mich at 494.
130
See State Theft, 54 Real Prop Tr & Est L J at 124 & nn 219-220
(“In the case of property tax foreclosure, there is some compensation
provided to the owner because the proceeds from the property sale are
used to satisfy the amount that the property owner owes the govern-
ment in taxes, interest, and fees. This is a form of compensation
because after the property is sold the former owner’s debt is can-
celed.”), citing Comment, Tax Foreclosure: A Drag On Community
Vitality Or A Tool For Economic Growth?, 81 U Cin L Rev 1615, 1617
(2013) (explaining that the collection of unpaid real-property taxes
involves, among other things, “liquidation of the property by public
sale in order to satisfy the debt owed”).
2020] RAFAELI V OAKLAND CO 483
OPINION OF THE COURT

property and compensation due, plaintiffs contend

that it may be less than just compensation and may
instead constitute the fair market value of their
properties.131
We reject the premise that just compensation re-
quires that plaintiffs be awarded the fair market
value of their properties so as to be put in as good a
position had their properties not been taken at all.
First, this would run contrary to the general principle
that just compensation is measured by the value of
the property taken. In this case, the property improp-
erly taken was the surplus proceeds, not plaintiffs’
real properties.132 Second, plaintiffs are largely respon-
sible for the loss of their properties’ value by failing to
pay their taxes on time and in full. If plaintiffs were
entitled to collect more than the amount of the surplus
proceeds, not only would they be taking money away
from the public as a whole, but they would themselves
benefit from their tax delinquency.133
Accordingly, when property is taken to satisfy an
unpaid tax debt, just compensation requires the fore-
closing governmental unit to return any proceeds from
the tax-foreclosure sale in excess of the delinquent

131
Plaintiffs’ Supplemental Brief on Appeal (December 13, 2019) at 4
n 1, citing United States v Miller, 317 US 369, 373; 63 S Ct 276; 87
L Ed 336 (1943) (stating that just compensation for a takings claim
requires that the property owner “be put in as good position pecuni-
arily as he would have occupied if his property had not been taken”).
132
This distinction also explains why the Michigan Takings Clause’s
125% requirement does not apply. That provision is triggered only when
the property taken consists of an individual’s principal residence. That
is not the case here.
133
In re State Hwy Comm’r, 249 Mich 530, 535; 229 NW 500 (1930)
(“Just compensation should neither enrich the individual at the expense
of the public nor the public at the expense of the individual.”).
484 505 MICH 429 [July
OPINION OF THE COURT

taxes, interest, penalties, and fees reasonably related

to the foreclosure and sale of the property—no more, no
less.134

VI. CONCLUSION

We hold that plaintiffs, former property owners

whose properties were foreclosed and sold to satisfy
delinquent real-property taxes, have a cognizable,
vested property right to the surplus proceeds resulting
from the tax-foreclosure sale of their properties. This
right continued to exist even after fee simple title to
plaintiffs’ properties vested with defendants, and
therefore, defendants’ retention and subsequent trans-
fer of those proceeds into the county general fund

134
Plaintiffs suggest that they are entitled to the equity they held in
their properties before foreclosure, but throughout their briefing they
conflate equity with surplus proceeds, suggesting that they are one and
the same. See Plaintiffs’ Brief on Appeal (February 13, 2019) at 12
(“Equity is realized when property is sold. Thus, logically, common law
and statutory law have traditionally treated the surplus proceeds from
the sale of foreclosed property as representing the former owner’s
equity.”). Similarly, the concurring opinion asserts that the property
right taken is the equity a former property owner held in his or her
property prior to foreclosure. The concurring opinion supports this
assertion with scant caselaw, relying primarily on the “equity of redemp-
tion” as representing an owner’s equity interest in property. Yet the
concurring opinion acknowledges that equity of redemption and equity
are distinct concepts, with the former serving to protect the latter.
Further, we are unaware of any authority affirming a vested property
right to equity held in property generally. Nor is it necessary for us to do
so here. The question presented is whether a former property owner
retains the ability to collect any surplus proceeds that might result after
the government seizes title to real property for failure to pay taxes and
then sells that property for more than the tax delinquency. The earlier
discussion reaffirms a former property owner’s vested common-law
property right to the surplus proceeds resulting from a tax-foreclosure
sale that is protected by our state’s Takings Clause. Thus, plaintiffs
have a compensable takings claim for the surplus proceeds, i.e., the
value of the property taken.
2020] RAFAELI V OAKLAND CO 485
CONCURRING OPINION BY VIVIANO, J.

amounted to a taking of plaintiffs’ properties under

Article 10, § 2 of our 1963 Constitution. Therefore,
plaintiffs are entitled to just compensation, which in
the context of a tax-foreclosure sale is commonly un-
derstood as the surplus proceeds. Accordingly, we re-
verse the judgment of the Court of Appeals and remand
this case to the Oakland Circuit Court for proceedings
consistent with this opinion.

MCCORMACK, C.J., and MARKMAN, BERNSTEIN,

CLEMENT, and CAVANAGH, JJ., concurred with ZAHRA, J.

VIVIANO, J. (concurring). At issue is whether defen-

dant Oakland County’s retention of the surplus pro-
ceeds from tax-foreclosure sales constitutes a taking
under Article 10, § 2 of the 1963 Michigan Constitu-
tion. I concur with the majority’s result but disagree
with much of its reasoning.1 In its zeal to adopt a
pragmatic rule in order to provide limited relief to
these plaintiffs and others similarly situated, the ma-
jority has made a number of doctrinal missteps. In
particular, the majority has applied a flawed interpre-
tive methodology and, even more fundamentally, has
failed to identify the correct property right. These
mistakes are not without consequences. The first
trenches upon the Legislature’s power to abrogate
nonvested property rights. And the second—by defin-
ing plaintiffs’ property right as the right to surplus
proceeds, instead of the right to equity more generally
—would seemingly encourage and endorse many tak-
ings of a person’s equity without just compensation
whenever a foreclosure sale does not yield surplus
proceeds.

1
I concur in all parts except Parts IV(C), V(A), V(C), and VI.
486 505 MICH 429 [July
CONCURRING OPINION BY VIVIANO, J.

I would instead interpret the Constitution in the

usual manner, discerning the ordinary meaning of
“property” and applying it to the facts here. Doing so, I
conclude that the property right that has been taken
from the plaintiffs is their equity in their respective
properties and not any independent interest in the
surplus proceeds from the tax-foreclosure sale.

I. INTERPRETIVE ISSUES

The majority correctly notes that “a claimant must

first establish a vested property right under state law”
in order to have a takings claim and that “ ‘the exis-
tence of a property interest is determined by reference
to existing rules or understandings that stem from an
independent source such as state law.’ ”2 Then the
majority recounts the familiar rule that “[o]ur ‘primary
objective’ in interpreting a constitutional provision
such as our state’s Takings Clause is ‘to determine the
text’s original meaning to the ratifiers, the people, at
the time of ratification.’ ”3
However, the majority does not explain which words
in the Takings Clause are in need of interpretation.4 In
fact, rather than go on to explain what the ratifiers
would have understood any particular words in the
Takings Clause to mean, the majority proceeds to
recount historical claims for surplus and a menagerie
of other past cases involving vested property rights
more generally. Later, when considering whether the

2
Phillips v Washington Legal Foundation, 524 US 156, 164; 118 S Ct
1925; 141 L Ed 2d 174 (1998) (quotation marks and citation omitted).
3
Wayne Co v Hathcock, 471 Mich 445, 468; 684 NW2d 765 (2004).
4
The Takings Clause reads, in pertinent part: “Private property shall
not be taken for public use without just compensation therefore being
first made or secured in a manner prescribed by law.” Const 1963, art 10,
§ 2.
2020] RAFAELI V OAKLAND CO 487
CONCURRING OPINION BY VIVIANO, J.

Legislature might have abrogated a common-law right

to the surplus, the majority explains:
It is clear that our 1963 Constitution protects a former
owner’s property right to collect the surplus proceeds
following a tax-foreclosure sale under Article 10, § 2. This
right existed at common law; was commonly understood to
exist in the common law before the 1963 ratification of our
Constitution; and continues to exist after 1963, as our
decision in Dean [v Dep’t of Natural Resources, 399 Mich
84; 247 NW2d 876 (1976)] demonstrates. Because this
common-law property right is constitutionally protected by
our state’s Takings Clause, the Legislature’s amendments
of the [General Property Tax Act (GPTA), MCL 211.1 et seq.]
could not abrogate it. While the Legislature is typically free
to abrogate the common law, it is powerless to override a
right protected by Michigan’s Takings Clause.[5]

Though the majority does not make it explicit, I

understand its opinion as reasoning that because vari-
ous past cases and other materials appear to recognize
some interest on the part of the previous landowner in
the surplus proceeds after a tax foreclosure, the ratifi-
ers would have understood the term “property” in the
Constitution to encompass such a property right to
surplus proceeds. Consequently, that property right
must be considered frozen and inviolable under our
Takings Clause. And because it is enshrined in the
Constitution, the Legislature may not abrogate that
common-law right; to do so would run afoul of the
Takings Clause.
I, of course, take no issue with the general rule that
when interpreting a constitutional provision, we aim to
“determine the text’s original meaning to the ratifi-
ers . . . .”6 Consequently, under our rules of constitu-
tional interpretation, the definition of “property” is

5
Ante at 473.
6
Hathcock, 471 Mich at 468.
488 505 MICH 429 [July
CONCURRING OPINION BY VIVIANO, J.

determined by what the ratifiers understood “prop-

erty” to mean. But the majority’s investigation of this
concept ultimately rests on a flawed understanding of
original meaning. Obviously, the majority cannot say
that the constitutional term “property” means “surplus
proceeds.”7 Rather, what the majority says, at least
implicitly, is that the phrase “surplus proceeds” falls
within the meaning of “property” because the ratifiers
would have considered surplus proceeds to be property
at the time of ratification. But the majority never
defines the term “property.” Yet, this question—the
semantic content of “property”—should be at the cen-
ter of any interpretation of a legal term or phrase, and
its absence here is telling.8 Compare this with how the
United States Supreme Court has defined “property” in
the Takings Clause: “The constitutional provision is
addressed to every sort of interest the citizen may
possess.”9 Whether right or wrong, this definition at
least gives the term a meaning that can be applied.
By contrast, the majority here focuses on what res the
ratifiers would have believed were encompassed by the
term “property.”10 This treats the ratifiers’ expectations
about the application of the constitutional text as

7
Cf. McGinnis & Rappaport, Original Interpretive Principles as the
Core of Originalism, 24 Const Comment 371, 378 (2008) (“The original
meaning of the words would not normally be defined by the expected
applications, but instead by the meaning that people at the time would
understand the words to have.”).
8
Cooley, Constitutional Limitations (5th ed), p 49 (explaining that the
purpose of interpretation is to “find[] out the true sense of any form of
words”).
9
United States v Gen Motors Corp, 323 US 373, 378; 65 S Ct 357; 89
L Ed 311 (1945).
10
“Res” is Latin for “thing; event, business; fact; cause; property[.]”
University of Notre Dame, William Whitaker’s Words <http://archives.
nd.edu/cgi-bin/wordz.pl?keyword=res> (accessed June 26, 2020) [https://
2020] RAFAELI V OAKLAND CO 489
CONCURRING OPINION BY VIVIANO, J.

binding. Such an approach has been rejected by those

who, like myself, consider courts to be bound by the
Constitution’s original textual meaning—it is the pub-
licly accessible meaning of the text, rather than its
intended or expected applications, that binds the
courts.11
perma.cc/5HEJ-RHSD]. Black’s Law Dictionary (11th ed) now defines it
as “n. [Latin ‘thing’] (17c) 1. An object, interest, or status, as opposed to
a person . . . .”
11
See McConnell, The Importance of Humility in Judicial Review: A
Comment on Ronald Dworkin’s “Moral Reading” of the Constitution,
65 Fordham L Rev 1269, 1284 (1997) (“Mainstream originalists recognize
that the Framers’ analysis of particular applications could be wrong, or
that circumstances could have changed and made them wrong. . . . [T]hey
believe that ‘[w]e are governed by what our lawmakers said—by the
principles they laid down—not by any information we might have about
how they themselves would have interpreted those principles or applied
them in concrete cases.’ ”) (citation omitted); Balkin, Living Originalism
(Cambridge: The Belknap Press of Harvard University Press, 2011), p 13
(“Fidelity to original meaning as original semantic content does not
require that we must apply [for example] the equal protection clause the
same way that people at the time of enactment would have expected it
would be applied.”); Whittington, Constitutional Interpretation: Textual
Meaning, Original Intent, and Judicial Review (Lawrence: University
Press of Kansas, 1999), p 178 (“An expectation, in and of itself, is derived
from the text and as a prediction about its effects in the future is only
contingently related to the text. . . . [T]he author has no special authority
relative to expectations about effects.”); Scalia, A Matter of Interpretation:
Federal Courts and the Law (Princeton: Princeton University Press,
1997), p 144 (“I agree with the distinction . . . between . . . ‘semantic in-
tention’ and the concrete expectations of lawgivers. It is indeed the former
rather than the latter that I follow.”); Rosenthal, Originalism in Practice,
87 Ind L J 1183, 1209 (2012) (“Most originalists draw a distinction
between the original meaning of constitutional text and its originally
intended applications, arguing that only the former is interpretively
binding.”) (collecting sources); Barnett, An Originalism for Nonoriginal-
ists, 45 Loy L Rev 611, 622 (1999) (“While some originalists still search for
how the relevant generation of ratifiers expected or intended their textual
handiwork would be applied to specific cases, original meaning original-
ists need not concern themselves with this, except as circumstantial
evidence of what the more technical words and phrases in the text might
have meant to a reasonable listener.”).
490 505 MICH 429 [July
CONCURRING OPINION BY VIVIANO, J.

The ratifiers’ understanding thus establishes the

general meaning of “property” but not necessarily
which things fall within that concept. In other words,
the meaning of “property,” as defined at the time of
ratification, establishes the parameters by which we
determine the things denoted by “property.”12 It does
not necessarily establish, for all time, what those

The majority’s emphasis on expected applications rather than the

semantic content of the text itself fundamentally misperceives the object
of interpretation as the ratifiers’ intentions rather than the original
public meaning of the text. As Robert Bork described the larger
interpretive principle, the search for the “understanding of the ratifi-
ers . . . is actually a shorthand formulation” for what courts must
interpret “because what the ratifiers understood themselves to be
enacting must be taken to be what the public of that time would have
understood the words to mean. It is important to be clear about this. The
search is not for a subjective intention.” Bork, The Tempting of America:
The Political Seduction of the Law (New York: Simon & Schuster Inc,
1990), p 144. See also Calabresi & Fine, Two Cheers for Professor
Balkin’s Originalism, 103 Nw U L Rev 663, 669 (2009) (“What judges
must be faithful to is the enacted law, not the expectations of the parties
who wrote the law. . . . The enactment into law of these texts was an
open democratic process, and every citizen was entitled to think that the
words in the texts that were enacted meant what a good dictionary in
use at the time said they meant.”).
Contemporaneous expectations about how the constitutional text
applied in a case are useful only to the extent they shed light on the
original public meaning. Whittington, Originalism: A Critical Introduc-
tion, 82 Fordham L Rev 375, 385 (2013) (“[E]xpected applications might
be helpful to later interpreters in clarifying the substantive content of the
embodied constitutional rule. The Founders could be mistaken or disin-
genuous about the implications of adopting a proposed rule, but the rule
itself must be publicly understandable. If examples of likely applications
of the rule are regularly offered and there is widespread agreement on
such applications, then they may be reflective of the content of the rule in
question.”); Original Interpretive Principles, 24 Const Comment at 378
(noting that expected applications are not tantamount to original mean-
ing but can provide evidence of that meaning).
12
See Slocum, Ordinary Meaning: A Theory of the Most Fundamental
Principle of Legal Interpretation (Chicago: University of Chicago Press,
2015), p 222.
2020] RAFAELI V OAKLAND CO 491
CONCURRING OPINION BY VIVIANO, J.

things were.13 This is particularly the case with a broad

concept like property, which covers various classes of
things that can be redefined by the Legislature.14
For these reasons, the ratifiers’ understanding of
which particular res were included in the definition of
property at a particular moment in time does not dictate
which res we must recognize as “property” under the
Takings Clause today. Instead, I would define the term
“property” according to its ordinary meaning at the time
the Constitution was ratified. Because this case does not
turn on fine distinctions in the definitions—but it does
turn on having some definition rather than a mere
example—it is sufficient for present purposes to employ
a common definition of “property” from the relevant

13
Justice Thomas Cooley recognized, for example, that the same text
bearing the same meaning could, over time, come to take on a different
significance because changing circumstances (e.g., technology) could
change the objects that fell within the unchanged textual meaning: “The
bounds of [constitutional] power remain the same, but the new creations
that come within its compass give it an importance which those who
devised it never dreamed of.” Cooley, The Comparative Merits of Written
and Prescriptive Constitutions, 2 Harv L Rev 341, 355 (1889); see also
Dist of Columbia v Heller, 554 US 570, 582; 128 S Ct 2738; 171 L Ed 2d
637 (2008) (“Some have made the argument, bordering on the frivolous,
that only those arms in existence in the 18th century are protected by
the Second Amendment. We do not interpret constitutional rights that
way. Just as the First Amendment protects modern forms of communi-
cations, . . . and the Fourth Amendment applies to modern forms of
search, . . . the Second Amendment extends, prima facie, to all instru-
ments that constitute bearable arms, even those that were not in
existence at the time of the founding.”); Scalia & Garner, Reading Law:
The Interpretation of Legal Texts (St. Paul: Thomson/West, 2012), p 86
(“The meaning of rules is constant. Only their application to new
situations presents a novelty. . . . Broad language can encompass the
onward march of science and technology[.]”).
14
See Black’s Law Dictionary (11th ed) (defining “property” as,
“[c]ollectively, the rights in a valued resource such as land, chattel, or an
intangible” or “[a]ny external thing over which the rights of possession,
use, and enjoyment are exercised”).
492 505 MICH 429 [July
CONCURRING OPINION BY VIVIANO, J.

period: “something owned or possessed; specif : a piece

of real estate”; “the exclusive right to possess, enjoy, and
dispose of a thing : OWNERSHIP”; “something to which a
person has a legal title.”15
Defining property using this traditional approach to
constitutional interpretation avoids other problems
raised by the majority’s reading. One such problem is
that any property rights extant when the Constitution
was ratified would be insulated from legislative
change, whereas later-developed property rights would
presumably be subject to change. Though the majority
might conclude that the Legislature could expand the
res in which citizens may have property interests, the
majority’s broad position would not allow the Legisla-
ture to repeal rights in the res that were recognized
property rights at the time of ratification and thereby
preserved in the protective amber of the Takings
Clause.16 That is not problematic if the rights the
Legislature sought to abrogate were vested. The trou-
bling sweep of the majority’s opinion, however, would
extend its prohibition even to legislation that prospec-
tively modified or abrogated nonvested property rights
—i.e., rights to property that individuals might acquire
in the future.17

15
Webster’s Seventh New Collegiate Dictionary (1963); see also The
American Heritage Dictionary of the English Language (1969) (“1. Own-
ership. 2. A possession, or possessions collectively. 3. Something tangible
or intangible to which its owner has legal title.”); 8 Oxford English
Dictionary (1933) (“That which one owns; a thing or things belonging to or
owned by some person or persons; . . . [a] piece of land owned[.]”).
16
Cf. PruneYard Shopping Ctr v Robins, 447 US 74, 93; 100 S Ct 2035;
64 L Ed 2d 741 (1980) (Marshall., J., concurring) (“Such an approach
would freeze the common law as it has been constructed by the courts,
perhaps at its 19th-century state of development. It would allow no room
for change in response to changes in circumstance.”).
17
The breadth of the opinion stems, in part, from the majority’s
misunderstanding about what it means for a right to be “vested.” The
2020] RAFAELI V OAKLAND CO 493
CONCURRING OPINION BY VIVIANO, J.

This would be a novel approach to legislative power

over property. We have stated, for example, that the
right of redemption—which we have recognized is a
property right in the context of tax-foreclosure
majority suggests that the right to surplus proceeds is “vested”
because “the right to collect these proceeds was beyond a mere
expectancy or claim of entitlement,” apparently because the proceeds
can be owned. Ante at 471. In other words, the right is somehow vested
irrespective of any individual circumstances—it is vested in the ether.
But that is not how it works. “To constitute a vested right, the interest
must be something more than such a mere expectation as may be
based upon an anticipated continuance of the present general laws; it
must have become a title, legal or equitable, to the present or future
enjoyment of property . . . .” In re Certified Question, 447 Mich 765,
788; 527 NW2d 468 (1994) (quotation marks and citation omitted).
“Vested” means “[h]aving become a completed, consummated right for
present or future enjoyment; not contingent; unconditional; abso-
lute . . . .” Black’s Law Dictionary (11th ed). This requires a real person
or entity and a real property right, not simply a property right in the
abstract. See Wylie v City Comm of Grand Rapids, 293 Mich 571, 586;
292 NW 668 (1940) (noting, in the related context of due process, that
“ ‘[r]ights are “vested” when the right of enjoyment, present or pro-
spective, has become the property of some particular person or persons
as a present interest’ ”) (citation omitted); Cooley, Constitutional
Limitations, p 438 (describing vested rights in the context of an
individual’s rights and interests); 5 Smith & Philbin, Michigan Civil
Jurisprudence, Constitutional Law (May 2020 update), § 300 (noting
this definition).
For instance, I do not have a vested property right in a wild fox
simply because, if I captured one, the law would recognize my ownership
of it. Cf. Pierson v Post, 3 Cai R 175; 2 Am Dec 264 (1805). If, before I
even don my hunting cap, the Legislature proscribes or limits ownership
of foxes, no one would say I have been deprived of a vested property right
in the fox I never owned or caught. At best, I had an expectation or hope.
In the same way, someone who does not now own a home but would like
to own one in the future does not have any vested property right in a
home. As Justice Cooley stated, “[A] mere expectation of property in the
future is not considered a vested right . . . .” Cooley, Constitutional
Limitations, p 440. And as discussed below, there is no vested right in a
mere common-law rule. See notes 20-21 of this opinion and the accom-
panying text. Thus, although the majority purports to cabin its opinion
to vested rights, its misconception of those rights leads to a wider
application that encompasses nonvested rights as well.
494 505 MICH 429 [July
CONCURRING OPINION BY VIVIANO, J.

sales18—“is not a constitutional right but exists only as

permitted by statute, that such rights . . . are subject
to abridgement by the legislature for the reason they
are remedial in nature, and that no vested rights
arise . . . .”19 Other courts, too, have recognized that the
Legislature’s role in defining property rights extends to
removing items from the category of property, if done
prospectively, i.e., without affecting vested rights.20
And, of course, even the majority recognizes that the

18
See Cobleigh v State Land Office Bd, 305 Mich 434, 436-437; 9
NW2d 665 (1943).
19
Buckeye Union Fire Ins Co v Michigan, 383 Mich 630, 639; 178
NW2d 476 (1970) (discussing Baker v State Land Office Bd, 294 Mich 587;
293 NW 763 (1940)); see also Dumphey v Hilton, 121 Mich 315, 317; 80
NW 1 (1899) (“It was held by the United States Supreme Court that the
right of redemption from tax sales, although it is to be regarded favorably,
does not exist, except as permitted by statute. . . . ‘While it may well be
doubted whether the legislature could enact an immediate bar to any
existing right, yet it is clearly settled that to prescribe the period within
which any right may be enforced is within their power.’ ”) (citations
omitted). We had earlier said that “the equity of redemption”—which was
the redemption right at common law—“appertains to and goes with the
title to the real estate, and is in law the property of the owner of the fee.
It is an interest in land . . . .” Case v Ranney, 174 Mich 673, 681; 140 NW
943 (1913).
20
The New York Court of Appeals held, for example, that the legisla-
ture could “extinguish [a] property right by the simple expedient of
repealing the provision which gives rise to it,” but only prospectively and
not as to property already vested. Alliance of American Insurers v Chu,
77 NY2d 573, 585-586; 571 NE2d 672 (1991); id. at 589 (“Nothing in our
decision prevents the State from changing the law as it affects future
contributions.”); 29A CJS, Eminent Domain (June 2020 update), § 72
(“It has also been held that, just as a state legislature has the power to
statutorily create property interests, so too may it legislatively alter or
take away those same property interests, though its power to alter the
rights and obligations that attach to completed transactions is not as
broad as its power to regulate future transactions.”). It is true that these
sources refer to statutorily created property rights rather than those
that arose from the common law. But this distinction is immaterial
because, as explained below, the Legislature can abrogate the common
law.
2020] RAFAELI V OAKLAND CO 495
CONCURRING OPINION BY VIVIANO, J.

Legislature may, at times, abrogate the common law.21

As the United States Supreme Court has explained:
A person has no property, no vested interest, in any rule of
the common law. That is only one of the forms of municipal
law, and is no more sacred than any other. Rights of
property which have been created by the common law
cannot be taken away without due process; but the law
itself, as a rule of conduct, may be changed at the will, or
even at the whim, of the legislature, unless prevented by
constitutional limitations. Indeed, the great office of stat-
utes is to remedy defects in the common law as they are
developed, and to adapt it to the changes of time and
circumstances.[22]

A vested right, therefore, cannot be divested without

just compensation.23 But the Legislature has greater
scope to prospectively reshape laws establishing prop-
erty rights as long as those laws function in a way that
leaves vested rights untouched.24 Such actions are not

21
Const 1963, art 3, § 7 (“The common law and the statute laws now
in force, not repugnant to this constitution, shall remain in force until
they expire by their own limitations, or are changed, amended or
repealed.”).
22
Munn v Illinois, 94 US 113, 134; 24 L Ed 77 (1876) (discussing due
process).
23
Cf. Bank Markazi v Peterson, 578 US 212, 228-229; 136 S Ct 1310;
194 L Ed 2d 463 (2016) (“The Fifth Amendment’s Takings Clause
prevents the Legislature (and other government actors) from depriving
private persons of vested property rights except for a ‘public use’ and
upon payment of ‘just compensation.’ ”) (quotation marks and citation
omitted); In re Certified Question, 447 Mich at 787-788 (“One who
asserts an uncompensated taking claim must first establish that a
vested property right is affected.”) (emphasis added).
24
See Cooley, Constitutional Limitations, p 440 (“Acts of the legisla-
ture . . . cannot be regarded as opposed to fundamental axioms of
legislation, ‘unless they impair rights which are vested; because most
civil rights are derived from public laws; and if, before the rights become
vested in particular individuals, the convenience of the State procures
amendments or repeals of those laws, those individuals have no cause of
complaint.’ ”) (citation omitted).
496 505 MICH 429 [July
CONCURRING OPINION BY VIVIANO, J.

prohibited by the Takings Clause.25 Thus, for example,

the United States Supreme Court has held that the
expectation of future child-support benefits is not pro-
tected because it is a “prospective right . . . clearly
subject to modification by law, be it through judicial
decree, state legislation, or congressional enactment.”26
Moreover, as the United States Supreme Court and
numerous state supreme courts have established, “the
existence of a property interest is determined by refer-
ence to existing rules or understandings that stem from
an independent source such as state law.”27 In other
words, “the Constitution protects rather than creates
property interests . . . .”28 Citing this rule, one federal

25
There is no need to decide in this case whether other constitutional
provisions may limit the Legislature’s ability to define property. My
point is only that no such limitation may be found in the Takings Clause.
26
Bowen v Gilliard, 483 US 587, 607; 107 S Ct 3008; 97 L Ed 2d 485
(1987); see also Peterson, The Takings Clause: In Search of Underlying
Principles Part I—A Critique of Current Takings Clause Doctrine, 77 Calif
L Rev 1299, 1313 (1989) (“In a number of other takings cases, the Court
has said that unless a right created by positive law is a ‘vested right,’ it is
not property within the meaning of the takings clause. The Court’s
reasoning is that when the government grants A a legal right, it normally
retains the power to change the law to promote the general welfare, and
thus no taking occurs when the government exercises its retained power,
even though the change in the law eliminates A’s rights under the prior
law. As the Court expresses it, A has not lost any ‘vested rights.’ ”).
27
Phillips, 524 US at 164 (quotation marks and citation omitted;
emphasis added).
28
Id. See also Kafka v Montana Dep’t of Fish, Wildlife & Parks, 348
Mont 80, 93; 2008 MT 460; 201 P3d 8 (2008) (“Property interests
themselves are not defined by the [federal] Takings Clause, or for that
matter by [the state’s taking clause]” but by “ ‘ “background principles”
and “rules and understandings” [that] focus on the nature of the citizen’s
relationship to the alleged property, such as whether the citizen had the
rights to exclude, use, transfer, or dispose of the property.’ ”) (citations
omitted); Cheatham v Pohle, 789 NE2d 467, 473 (Ind, 2003) (“The plaintiff
has no property to be taken except to the extent state law creates a
property right.”); Mayor & City Council of Baltimore v Bregenzer, 125 Md
2020] RAFAELI V OAKLAND CO 497
CONCURRING OPINION BY VIVIANO, J.

court has reasoned that the nature of the “property” at

issue in the tax-foreclosure context would be found in
local law, not the Constitution itself.29 Yet by reasoning
that “property” must be defined at least as the particu-
lar types the ratifiers had in mind, the majority inter-
prets the Takings Clause as exalting those interests
above the Legislature’s authority to modify them.30
I believe that such a reading raises serious concerns
regarding the separation of powers. The Constitution
78; 93 A 425, 426 (1915) (“The section of the Constitution quoted does not
define property, nor does it declare what shall be a taking. It leaves those
questions to the determination of the courts upon the facts of each
particular case.”).
29
Coleman v Dist of Columbia, 70 F Supp 3d 58, 80 (D DC, 2014).
30
This result goes well beyond what the United States Supreme
Court has done. Even with regard to vested property rights, the United
States Supreme Court has recognized that “the property owner neces-
sarily expects the uses of his property to be restricted, from time to
time, by various measures newly enacted by the State in legitimate
exercise of its police powers; ‘[a]s long recognized, some values are
enjoyed under an implied limitation and must yield to the police
power.’ ” Lucas v South Carolina Coastal Council, 505 US 1003, 1027;
112 S Ct 2886; 120 L Ed 2d 798 (1992), quoting Pennsylvania Coal Co
v Mahon, 260 US 393, 413; 43 S Ct 158; 67 L Ed 322 (1922). “And in the
case of personal property, by reason of the State’s traditionally high
degree of control over commercial dealings, [the property owner] ought
to be aware of the possibility that new regulation might even render
his property economically worthless (at least if the property’s only
economically productive use is sale or manufacture for sale).” Lucas,
505 US at 1027-1028. Elaborating on these points in his Lucas dissent,
Justice Stevens observed that “[a]rresting the development of the
common law” would be “a departure from our prior decisions[.]” Id. at
1069 (Stevens, J., dissenting). Legislatures, he explained, “often revise
the definition of property and the rights of property owners. Thus,
when the Nation came to understand that slavery was morally wrong
and mandated the emancipation of all slaves, it, in effect, redefined
‘property.’ ” Id. All of this—in both the majority and dissent—referred
to the legislature’s expansive power over property a person already
owned. In this case, the majority goes in the opposite direction and ties
the Legislature’s hands in regulating property that does not yet exist
and that no one yet owns.
498 505 MICH 429 [July
CONCURRING OPINION BY VIVIANO, J.

provides that “the legislative power of the State of

Michigan is vested in a senate and a house of repre-
sentatives.”31 This Court has recognized that the legis-
lative power includes the power to abrogate the com-
mon law.32 In fact, the Constitution specifically allows
the common law to be changed: Const 1963, art 3, § 7
states, “The common law and the statute laws now in
force, not repugnant to this constitution, shall remain
in force until they expire by their own limitations, or
are changed, amended or repealed.”33 It is true that
this Court has applied the principle that statutes in
derogation of the common law must be strictly con-
strued.34 But the majority now significantly limits that
power by reasoning that any attempt to prospectively
abrogate a common-law property right in a particular
object that existed in 1963, without providing just
compensation, is unconstitutional.35

II. THE PROPERTY RIGHT AT ISSUE

The majority’s flawed interpretive methodology has

led it to characterize the “property” at issue as merely

31
Const 1963, art 4, § 1.
32
E.g., Hoerstman Gen Contracting, Inc v Hahn, 474 Mich 66, 74; 711
NW2d 340 (2006) (“The Legislature has the authority to abrogate the
common law.”).
33
Emphasis added.
34
E.g., Rusinek v Schultz, Snyder & Steele Lumber Co, 411 Mich 502,
508; 309 NW2d 163 (1981) (“[S]tatutes in derogation of the common law
must be strictly construed . . . .”).
35
Additionally, I believe that the majority’s approach has broad impli-
cations in the realm of regulatory takings. If the ratifiers’ understanding
of which particular objects an individual may have property rights in is
now set in stone in the Constitution, I see no reason why the ratifiers’
understanding of the scope of their property rights is also not set in stone.
In other words, under the majority’s approach, if the ratifiers believed
that their property interest entitled them to use a resin a variety of ways,
2020] RAFAELI V OAKLAND CO 499
CONCURRING OPINION BY VIVIANO, J.

the surplus proceeds from the foreclosure sale. But the

existence and scope of these proceeds are contingent
upon the foreclosure sale—the proceeds spring to life
only at the end of that process. The majority does not
consider the property interests that exist before the
sale or how these interests affect the taxpayer’s entitle-
ment to anything resulting from the sale. In starting
its analysis at the end of the process, the majority
ignores the laws and history of real-property owner-
ship and creates problematic gaps in the process that
fail to respect takings law. My analysis, by contrast,
starts at the beginning: the property owners’ preexist-
ing interest in the real estate, or their equity.

A. THE MAJORITY’S MISTAKEN APPROACH

It is important, at the outset, to note the question-

able basis for the majority’s conclusion that “our state’s
common law recognizes a former property owner’s
property right to collect the surplus proceeds . . . .” The
majority relies, first, on the Magna Carta, saying, “Just
as the Magna Carta protected property owners from
uncompensated takings, it also recognized that tax
collectors could only seize property to satisfy the value
of the debt payable to the Crown, leaving the property
owner with the excess.”36 But the provision of the
Magna Carta to which the majority refers concerns
collecting debts by seizing only movable property.37 It is
each of those ways must be read into the definition of “property” under
the Takings Clause. Consequently, it would be unconstitutional for a
regulation to take away any use of a res that the ratifiers would have
understood their property rights to include.
36
Ante at 463.
37
Ante at 463-464 n 82. Clause 26 of the Magna Carta reads:
If at the death of a man who holds a lay ‘fee’ of the Crown, a
sheriff or royal official produces royal letters patent of summons
500 505 MICH 429 [July
CONCURRING OPINION BY VIVIANO, J.

much more understandable to have a rule discouraging

the government from needlessly taking property in
excess of the tax debt when the government is seizing
various movable goods rather than real estate—it is
easier to take the chair and leave the table than it is to
take the kitchen and leave the living room. Thus,
although many of our rights can be traced to the
Magna Carta, I question whether Clause 26 has much
bearing on the seizure of real property.38 Additionally,
it is not quite true that tax collectors could only seize
property to satisfy the debt—as “the value of the goods
seized had to approximate the value of the debt[.]”39
Such a rule falls short of one that demands any surplus
be returned to the previous owner.
Next, the majority turns to People ex rel Seaman v
Hammond, 1 Doug 276 (Mich, 1844), noting that
though Seaman held that the previous landowner was
for a debt due to the Crown, it shall be lawful for them to seize and
list movable goods found in the lay ‘fee’ of the dead man to the
value of the debt, as assessed by worthy men. Nothing shall be
removed until the whole debt is paid, when the residue shall be
given over to the executors to carry out the dead man’s will. If no
debt is due to the Crown, all the movable goods shall be regarded
as the property of the dead man, except the reasonable shares of
his wife and children. [Johnson, The Ancient Magna Carta and
the Modern Rule of Law: 1215 to 2015, 47 St Mary’s L J 1, 47
(2015) (emphasis added).]
38
See Baker, An Introduction to English Legal History (Dayton:
LexisNexis, 2002), p 223 (“The most fundamental distinction in the
English law of property was between real property (realty) and personal
property (personalty).”). Indeed, the conception of ownership of land—
real property—was only just emerging in the thirteenth century from
innovations within the feudal system. Id. at 223-237; see also Turner,
The Equity of Redemption: Its Nature, History and Connection with
Equitable Estates Generally (Cambridge: Cambridge University Press,
1931), pp 1-3. The majority’s resort to Blackstone is similarly unavailing
because Blackstone’s discussion of bailments deals with goods rather
than real property. See ante at 463-464, citing 2 Blackstone, Commen-
taries on the Laws of England, p *452.
39
Ancient Magna Carta, 47 St Mary’s L J at 47.
2020] RAFAELI V OAKLAND CO 501
CONCURRING OPINION BY VIVIANO, J.

entitled to the surplus, the statutory scheme at the

time was different than the GPTA. Specifically, the
statute specified that the excess proceeds must be
returned to the owner.40 The majority appears to rec-
ognize that Seaman, and other cases involving stat-
utes, are not particularly instructive.41 Nevertheless,
the majority concludes that “a fair reading of Seaman
demonstrates that in the early years of this state, it
was commonly understood that the delinquent tax-
payer, not the foreclosing entity, continued to own the
land at the time of the tax-foreclosure sale and would
have been entitled to any surplus, which no more
followed title to the land than the former owner’s other
personal property.”42 But this is a misreading of
Seaman. To the extent that the owner’s entitlement to
the surplus was “commonly understood,” it no doubt
resulted from the statute that expressly provided such
a right. If the majority means this common under-
standing somehow reflected a common-law right to the
surplus, I do not see how. It is just as possible that the
statutory scheme provided for a right in the surplus
because the Legislature did not believe the common
law recognized such a right. Speculations on what the
Legislature thought it was doing are thus unfruitful
and far afield from establishing a common-law right to

40
Seaman, 1 Doug at 278.
41
The majority also cites United States v Lawton, 110 US 146; 3 S Ct
545; 28 L Ed 100 (1884), and Nelson v City of New York, 352 US 103; 77
S Ct 195; 1 L Ed 2d 171 (1956). See ante at 460 (“Significantly, Seaman,
Lawton, and Nelson all address a former property owner’s statutory
right to recover the surplus proceeds.”). See also ante at 461 (“Lawton
and Nelson establish that the Takings Clause under the United States
Constitution may afford former property owners a remedy when a
tax-sale statute provides the divested property owner an interest in the
surplus proceeds and the government does not honor that statutory
interest.”).
42
Ante at 465-466.
502 505 MICH 429 [July
CONCURRING OPINION BY VIVIANO, J.

the proceeds. In sum, it is far from clear what impli-

cations the former existence of a statutory right to
surplus proceeds has in determining the application of
the constitutional right in this case.
And Dean, 399 Mich 84, can hardly be read as
recognizing a longstanding vested property right in the
surplus. That case considered an unjust-enrichment
claim. The key determination in that cause of action is
whether retention of the benefit is inequitable, not
which party has the property right.43 In other words,
Dean involved an equitable decision based on the
specific facts of the case. Those facts, which involved
“the alleged good-faith attempt at redemption, the
running of the redemption period after this attempt
with plaintiff under the impression that she had in fact
redeemed her home, the loss of her home, and the sale
of the property by the State for a profit of close to
$10,000,” are very different than those here.44 Dean
does not indicate that all former property owners have
a property right to the surplus as a matter of course.45

B. EQUITY

In contrast to the majority’s approach, I would turn

to the law of property and the development of property

43
See also Tkachik v Mandeville, 487 Mich 38, 47-48; 790 NW2d 260
(2010) (“Unjust enrichment is defined as the unjust retention of ‘ “money
or benefits which in justice and equity belong to another.” ’ ”), quoting
McCreary v Shields, 333 Mich 290, 294; 52 NW2d 853 (1952) (citation
omitted).
44
Dean, 399 Mich at 94-95.
45
The majority also cites the brief discussion on surplus proceeds in
Cooley, Law of Taxation (3d ed), p 952. See ante at 464. But Cooley never
stated the right to surplus was of common-law origin. Instead, the
treatise explained that “[v]arious methods are adopted in different states
2020] RAFAELI V OAKLAND CO 503
CONCURRING OPINION BY VIVIANO, J.

interests in real estate to determine the rights at issue.

The history of equity in real estate is particularly
illuminating because this property right formed in
response to foreclosure practices that raised concerns
like those in the present case. Until mortgages came
into widespread use, creditors generally obtained a
“gage of land” as security in the debtor’s land, but the
creditor could not recover possession of the land from
the debtor.46 That defect, from the creditor’s perspec-
tive, likely led to the creation of the predominant form
of common-law mortgage, in which the mortgagor
conveyed the land, usually in fee simple, to the mort-
gagee on the condition subsequent that it would be
reconveyed to the mortgagor when the debt was repaid
at the appointed time.47
to save, if possible, something to the owner when his land is sold.” Cooley,
Law of Taxation, p 952 (emphasis added). As the majority notes, Cooley
found support in Lawton, 110 US 146, but that is another case dealing
with a statutory scheme rather than the common law. See ante at 464-465
n 86.
46
Sutherland, The Assize of Novel Disseisin (Oxford: Clarendon Press,
1973), pp 12, 138; see also Hazeltine, General Preface, in Turner, The
Equity of Redemption, pp xxiv-xxx (describing the gage as a conveyance
on condition precedent); 3 Holdsworth, A History of English Law (3d ed),
pp 128-129 (calling the interest a mortgage but differentiating it from
later practices and explaining that the creditor could not dispossess the
debtor if the latter had possession).
47
See An Introduction to English Legal History, pp 311-312 (“[T]he
mortgagor conveyed the fee to the mortgagee forthwith, on condition
that he might re-enter (and regain the fee) if he paid by a certain
date. . . . [This] gave the mortgagee a fee simple defeasible by condition
subsequent (that is, payment).”); Simpson, An Introduction to the
History of the Land Law (London: Oxford University Press, 1961), p 225
(“[T]he mortgagor conveyed his lands outright in fee simple to the
mortgagee, with a covenant for re-conveyance if the debt was repaid on
time; this is the classical common law mortgage . . . .”); 3 Holdsworth,
p 129 (“It was probably due chiefly to the latter cause [i.e., the creditor’s
inability to recover the land from a debtor in possession] that the
peculiar interest of the mortgagee . . . disappeared. He ceased to take a
504 505 MICH 429 [July
CONCURRING OPINION BY VIVIANO, J.

The harshness of this procedure was evident to

many at the time and is similar to harshness involved
in the present case, namely that it automatically led to
the full loss of the mortgagor’s interest in the property
no matter how much debt was owed—no surplus was
owed or paid to the mortgagor.48 Equity courts ad-
peculiar interest as mortgagee, and took instead some one of the
recognized estates or interests in the land—a fee simple, a life estate, or
a term. . . . The debtor might convey the land to the creditor in fee, with
a proviso that if the debt was paid by a fixed date the land should be
reconveyed[.]”); Turner, The English Mortgage of Land as a Security, 20
Va L Rev 729, 729 (1934) (“The English mortgage has developed from a
form of conveyance in use in the 16th century comprising an absolute
conveyance to the lender with a proviso that, on the borrower repaying
the principal with interest and costs by a fixed day, the lender would
reconvey the property to him.”); Lloyd, Mortgages—The Genesis of the
Lien Theory, 32 Yale L J 233, 234 (1923) (“If the debt was not paid on the
day named, the estate of the creditor became absolute. After default no
right of redemption was admitted.”).
48
See Restatement Property, 3d, Mortgages, § 3.1, comment a (“The
consequences of payment default were especially harsh on the mort-
gagor. If for any reason the payment was not made on law day, the
borrower forfeited all interest in [the property].”); 5 Tiffany, Real
Property (3d ed, November 2019 update), § 1518 (noting that equity
intervened out of justice because “no foreclosure was necessary [under
the common-law mortgage], since the mere breach of the condition
vested an absolute estate in the mortgagee”); An Introduction to English
Legal History, p 313 (explaining that equity courts began granting relief
in this situation because “[t]he moneylender was morally entitled only
to the debt, and perhaps some reasonable profit, but ought not to profit
unconscionably from a penal arrangement”); An Introduction to the
History of the Land Law, pp 226-227 (“The common law courts con-
strued mortgage transactions strictly and unsympathetically. If the
mortgage provided that the mortgagor was to lose his land through
defaulting in payment upon a fixed day then that was that; it mattered
nothing that he defaulted by a single day, or that the property was worth
infinitely more than the debt.”); 5 Holdsworth, A History of English Law
(1924), pp 330-331 (noting that equity granted relief because of the
penal character of the forfeiture); Sugarman & Warrington, Land Law,
Citizenship, and the Invention of “Englishness”: The Strange World of
the Equity of Redemption, in Early Modern Conceptions of Property
(Brewer & Staves eds, 1995), p 113 (“A single day’s delay in tendering
2020] RAFAELI V OAKLAND CO 505
CONCURRING OPINION BY VIVIANO, J.

dressed these concerns—in part because the transac-

tion functioned as an extension of a security interest in
repayment could result in the borrower losing the entire property to the
lender, even though the amount of the loan might be far less than the
value of the land.”); Burkhart, Fixing Foreclosure, 36 Yale L & Pol’y Rev
315, 320 (2018) (noting that this “process,” as incorporated in the
American colonies, “often gave lenders an especially large windfall
because land values were increasing at a greater rate than had
previously occurred anywhere”); Weinberger, Tools of Ignorance: An
Appraisal of Deficiency Judgments, 72 Wash & Lee L Rev 829, 849-850
(2015) (noting that the borrower was not entitled to any surplus and lost
title and all interest in the property); Mattingly, The Shift From Power
to Process: A Functional Approach to Foreclosure Law, 80 Marq L Rev
77, 90 (1996) (“The pendulum of power swung towards the borrower
with the intervention of the Equity Courts, which viewed the borrower’s
forfeiture of any interest in the property as unduly harsh.”); Wechsler,
Through the Looking Glass: Foreclosure by Sale as De Facto Strict
Foreclosure—An Empirical Study of Mortgage Foreclosure and Subse-
quent Resale, 70 Cornell L Rev 850, 856 (1985) (“Equity soon recognized
the injustice of the forfeiture inherent in this situation.”).
The same points are true regarding strict foreclosures, which devel-
oped along with the changes in mortgage law described above and, as in
the present case, transfers title by court decree rather than automati-
cally by extinguishment of the condition subsequent or by foreclosure
sale. In strict foreclosure, as under the common-law mortgage or the
statutes at issue here, the homeowner loses his or her equity in the
property. Ghent, How Do Case Law and Statute Differ? Lessons from the
Evolution of Mortgage Law, 57 J L & Econ 1085, 1094 (2014) (“Strict
foreclosure involved the lender going to an equity court and asking it to
terminate the borrower’s equity of redemption; foreclosure by sale of the
property was not permitted, and any equity the borrower had in the
property would be lost in the foreclosure.”); Tracht, Renegotiation and
Secured Credit: Explaining the Equity of Redemption, 52 Vand L Rev
599, 607 (1999) (“Under strict foreclosure (where foreclosure vests title
in the lender), there will be a forfeiture by the borrower and a windfall
to the lender if the property is worth more than the debt.”); Brabner-
Smith, Economic Aspects of the Deficiency Judgment, 20 Va L Rev 719,
720-721 n 2 (1934) (Strict foreclosure “is a proceeding in which the
decree finds that the mortgagee debt is due and has not been paid, that
title to the property therefore is absolute in the mortgagee, and that the
mortgagor is entirely divested of whatever interest he had in the
premises at the time of the execution of the mortgage. There is no sale
and no resulting deficiency or surplus.”).
506 505 MICH 429 [July
CONCURRING OPINION BY VIVIANO, J.

the property rather than a true transfer of the fee—by

creating the “equity of redemption,” under which the
mortgagor could redeem the property by paying off the
debt after defaulting.49 The “equity of redemption” was
considered—including by this Court—a property right
and came to represent the homeowner’s interest in the
property, known as “equity.”50

49
See 1 Coote, A Treatise on the Law of Mortgages (2d ed), pp 19-20
(“[Equity courts] declared it unreasonable that [the mortgagee] should
retain for his own benefit, what was intended as a mere pledge; and they
adjudged that the breach of the condition was in the nature of a penalty,
which ought to be relieved against, and that the mortgagor had an equity
to redeem on payment of principal, interest, and costs . . . .”); Sugarman &
Warrington, Equity of Redemption, p 113 (“Dating from at least the turn
of the seventeenth century, the courts of equity determined that the strict
date for repayment was somewhat irrelevant. Accordingly, the lender’s
claim to the property became subject ‘to a right called the equity of
redemption, which arose from the court’s consideration that the real
object of the transaction was the creation of a security for the debt. This
entitled the [borrower] to redeem (or recover the property), even though
he had failed to repay by the appointed time.’ ”) (citation omitted;
brackets in original); Waddilove, The “Mendacious” Common-Law Mort-
gage, 107 Ky L J 425, 457 (2019) (“The equity of redemption . . . looked to
what it deemed to be underlying substance of the mortgage agreement
and gave effect to that over legal interpretation.”).
The mortgagor’s specific right to redeem property after foreclosure
has been codified in Michigan, and the foreclosure sale purchaser’s deed
does not vest until the redemption period ends. See MCL 600.3240(1)
and (2); MCL 600.3236. See also People v March, 499 Mich 389, 416-421;
886 NW2d 396 (2016).
50
As described in the Restatement Property, 3d, Mortgages, § 3.1,
comment a, the “concept [of equitable redemption] evolved from simply
a late payment rule to connote, in addition, the mortgagor’s ownership
interest in the land prior to the satisfaction of the mortgage. The term
‘equity’ became and is today the pervasively used term to describe this
interest.” See also Case, 174 Mich at 681 (“As a general proposition, the
equity of redemption appertains to and goes with the title to the real
estate, and is in law the property of the owner of the fee. It is an interest
in land . . . .”); An Introduction to English Legal History, p 314 (“The
equity of redemption had thus become a right inherent in the land . . . .
[T]he great landowner of the seventeenth, eighteenth and nineteenth
2020] RAFAELI V OAKLAND CO 507
CONCURRING OPINION BY VIVIANO, J.

Thereafter, the equity courts “developed the decree

of foreclosure,” which a mortgagee could seek in order
centuries was commonly in possession of his land (or some of it) only as
the owner of an equity of redemption. The equity could be bought and
sold, settled in tail, and even mortgaged. . . . [I]t had become an equitable
estate[.]”); An Introduction to the History of the Land Law, pp 227-228
(“[T]he equity of redemption [was] a peculiar form of property which could
be dealt with by the debtor like other forms of equitable property. . . . In
the eighteenth century the final touches were put upon the conception;
the equity of redemption is spoken of as an estate in the land, and the
mortgagor is regarded as the owner in equity of the land.”); Turner, The
Equity of Redemption, pp 66-67 (“ ‘An equity of redemption is considered
as an estate in land[.] . . . The person having the equity of redemption is
considered as the owner of the land . . . . An equity of redemption, . . . un-
foreclosed, is the ownership of the land, or the real estate in equity[.]’ ”)
(citation omitted); 6 Holdsworth, A History of English Law (1924), p 663
(“The result had been to make the mortgagor’s equity to redeem a right of
property. He had an equitable estate in the land; and, subject to the legal
rights of the mortgagee, was, in equity, regarded as its owner.”); 5
Holdsworth, p 332 (“[I]t became clear that this equitable right to redeem
was in substance an equitable estate in the land which could be conveyed
or settled like any other estate.”); Waddilove, Why the Equity of Redemp-
tion?, in Land and Credit: Mortgages in the Medieval and Early Modern
European Countryside (Briggs & Zuiderduijn eds, 2018), § 5.1, pp 1-2
(“According to the equity of redemption, a mortgagor remained the true
owner of mortgaged property throughout a mortgage despite lacking legal
title; a mortgagee’s interest was mere security for a debt; and a mortgagor
was thus entitled to redeem the property at any time . . . until his or her
equity of redemption was declared foreclosed by a court.”); Sugarman &
Warrington, Equity of Redemption, pp 115-116 (noting the “shift of the
equity of redemption from a ‘thing’ to an ‘estate’ in equity, that is, in
conceptualizing the equity of redemption as a kind of real property rather
than as a kind of chattel property,” and noting further that it was
“characterized . . . as a title in equity” and “was proprietorial”); Mort-
gages, 32 Yale L J at 236 (noting that chancery “treats the equity of
redemption not as a mere right but as an estate which the mortgagor may
deal with in any way consistent with the rights of the mortgagee in his
security”).
Although the terms “equity” and “equity of redemption” now are
“interchangeable,” they were “not equivalent” at common law because
the equity of redemption originally could not be sold. Sabella, When
Enough is Too Much: Overcollateralization as a Fraudulent Conveyance,
9 Cardozo L Rev 773, 780 n 32 (1987). Once it could be alienated, “the
concept changed in meaning to one much closer to today’s notion of
508 505 MICH 429 [July
CONCURRING OPINION BY VIVIANO, J.

to end the mortgagor’s period of equitable redemption;

when foreclosure by sale was permitted, “the mort-
gagee [took] the money owed to her/him, the remainder
going to the mortgagor.”51 Thus the creation of “equity”
led to the homeowner’s right to surplus proceeds from
foreclosure sales. Indeed, as stated in Restatement
Property, 3d, Mortgages, § 7.4, comment a, “[W]hen a
surplus occurs, it represents what remains of the
‘equity.’ ” Id. Still, a distinction exists. In discussing the mortgagor’s
interest in the property, one treatise states, “[T]he term ‘equity of
redemption’ which had previously and appropriately been applied to the
mortgagor’s right to get back his property after default was applied
somewhat inappropriately to this entirely distinct equitable ownership
before default.” 1 Nelson, Real Estate Finance Law (6th ed), § 1:3.
Compare Black’s Law Dictionary (11th ed) (defining “equity” as “[a]n
ownership interest in property”), with id. (defining “equity of redemp-
tion” as “[t]he right of a mortgagor in default to recover property before
a foreclosure sale by paying the principal, interest, and other costs that
are due”). Thus, perhaps it is more accurate to say a redemption right
functions to protect a homeowner’s equity interest. See, e.g., Note, The
Big Chill: Applicability of Section 548(a)(2) of the Bankruptcy Code to
Noncollusive Foreclosure Sales, 53 Fordham L Rev 813, 817 n 22, 834
(1985) (observing that the equity interest was originally called the
equity of redemption but noting that the “debtor can protect his equity
interest in the property by paying the sale price plus costs,” i.e., exercise
the redemption right, and that the equity of redemption “ordinarily
would serve to preserve his equity interest”).
51
Sugarman & Warrington, Equity of Redemption, pp 113-114; see
also 2 Dunaway, Law of Distressed Real Estate (December 2019 up-
date), § 26:29 (noting that any surplus over the foreclosing mortgagee’s
debt is paid to other liens and “[a]ny balance is distributed to the holder
of the equity of redemption”); 5 Holdsworth, p 331 (“About the same
period therefore we get the foreclosure decree . . . .”); Fixing Foreclosure,
36 Yale L & Pol’y Rev at 319-320 (discussing the transition from strict
foreclosure to foreclosure by public auction); How Do Case Law and
Statute Differ, 57 J L & Econ at 1094-1095 (discussing the transition
from strict foreclosure to foreclosure by sale, which protected the
debtor’s equity); Through the Looking Glass, 70 Cornell L Rev at 859
(“Foreclosure by sale was viewed as a logical way of protecting the
debtor’s equity in the property . . . .”); The English Mortgage, p 730
(“Almost as soon as the equity of redemption became established the
mortgagee was given an equitable right of foreclosure[.]”).
2020] RAFAELI V OAKLAND CO 509
CONCURRING OPINION BY VIVIANO, J.

equity of redemption and is, as such, a substitute res.

The surplus stands in the place of the foreclosed real
estate . . . .”52

52
As the Missouri Court of Appeals stated:
[A] foreclosure sale surplus “retains the character of real estate
for the purpose of determining who is entitled to receive it, and
goes to the person to whom the real estate would have gone but
for the conversion.” Roy v. Roy, 233 Ala. 440, 172 So. 253, 254
(1937). Such surplus represents the owner’s equity in the real
estate. Dodson v. Farm & Home Sav. Ass’n, 208 Ga.App. 568, 430
S.E.2d 880, 881 (1993). It stands in place of the foreclosed
property, subject to the same liens and interests that were
attached to the land. Timm v. Dewsnup, 86 P.3d 699, 703 (Utah
2003). Surplus “usually arises because more land is sold . . . than
is necessary to satisfy the mortgage debt. . . . [T]he money stands
for the land and the rights therein are determined as though the
court were dealing with the land itself.” Morris v. Glaser, 106 N.J.
Eq. 585, 151 A. 766, 771 (N.J.Ch.1930) aff’d mem., 110 N.J. Eq.
661, 160 A. 578 (N.J.Err. & App.1932). See also First Fed. Sav. &
Loan Ass’n v. Brown, 78 A.D.2d 119, 434 N.Y.S.2d 306, 310 (1980)
(foreclosure surplus “stands in place of the land for all purposes of
distribution among persons having vested interests or liens upon
the land”); East Atlanta Bank v. Limbert, 191 Ga. 486, 12 S.E.2d
865, 867 (1941) (quoting Morris)[.] [Grand Teton Mountain In-
vestments, LLC v Beach Props, LLC, 385 SW3d 499, 502-503 (Mo
App, 2012).]
See also Nelson, § 7:32 (“The major underlying principle is that the
surplus represents the remnant of the equity of redemption and the
security that the foreclosure eliminated. Consequently, the surplus
stands in the place of the foreclosed real estate . . . .”); Tiffany, § 1529
(“Any surplus proceeds of sale remaining after the payment of the debt
secured by the mortgage are paid to the mortgagor or, if there are
subsequent purchasers or incumbrancers, such surplus proceeds belong
to them, in the order of priority in which their rights against the land
could have been asserted. In other words, the proceeds of sale are
substituted for the land itself, and become subject to outstanding liens
and claims to the same extent and in the same order as the land itself
was subject thereto.”) (citations omitted); Nelson & Whitman, Reform-
ing Foreclosure: The Uniform Nonjudicial Foreclosure Act, 53 Duke L J
1399, 1483 (2004) (“Sometimes a foreclosure sale yields a surplus
amount in excess of what is needed to satisfy the mortgage obligation
and the expenses of sale. In essence, when a surplus results, it
510 505 MICH 429 [July
CONCURRING OPINION BY VIVIANO, J.

Given this history and caselaw, I would characterize

the property right at issue here as the taxpayer’s
equity in the property. This conclusion best fits the
development of ownership rights in property laden
with debts or liens. The majority’s belief that a prop-
erty right in the surplus proceeds exists apart from the
interest in the equity finds no support in the historical
record. Indeed, equity formed in response to practices
like those at issue here, albeit in the private realm, and
gives rise to any right in surplus proceeds. It thus
constitutes a disposable property right to the value of
land above any liens or other interests in the prop-
erty.53 And it is a vested right—at least with regard to
represents what remains of the debtor’s ownership or ‘equity of redemp-
tion’ and is conceptually a substitute res.”).
It is true that some courts have found that the surplus proceeds are
the property owner’s general funds rather than the real estate. See In re
Schiphof, 192 NC App 696, 702; 666 SE2d 497 (2008) (“This Court stated
that, ‘the surplus funds . . . did not constitute real estate. The surplus
funds represented the general funds of the plaintiffs, the owners of the
premises and the grantors in the deed of trust which was foreclosed.’ ”),
quoting Smith v Clerk of Superior Court, 5 NC App 67, 73-74; 168 SE2d
1 (1969). This does not, however, have any bearing on a homeowner’s
entitlement to the proceeds by virtue of his or her equity in the home. As
stated, “ ‘[E]quity’ is defined as ‘the value of a property * * * above the
total of the liens.’ ” Crane, 331 US at 7. Whether that value, realized in
the surplus proceeds after a tax foreclosure, is thought of as represent-
ing the real estate or general funds, it is still a result of the right to
equity.
53
Black’s Law Dictionary (11th ed) defines “equity” as “[a]n ownership
interest in property, esp. in a business.” See also Crane, 331 US at 7
(“ ‘[E]quity’ is defined as ‘the value of a property * * * above the total of
the liens.’ ”). Of course, there might be other liens on the property such
that a landowner’s equity is less than the property value minus what
was owed in taxes. It is also true that equity may fluctuate as market
values change. But I see no reason why a fluctuation in equity would
affect whether the right is vested. Though a property owner is not
guaranteed that real property will sell for a particular amount, the
owner’s interest still comes from his title and is more than a “mere
expectation.” In re Certified Question, 447 Mich at 788.
2020] RAFAELI V OAKLAND CO 511
CONCURRING OPINION BY VIVIANO, J.

an individual who owns property with equity value—

because it represents an estate in the land providing
immediate and future benefit.54 It thus fits the general
definition of “property” at the time our Constitution
was ratified.55 If more proof were needed that “equity”
is routinely considered the relevant property right in
the nondebt value of a house, one need look no further
than divorce proceedings, in which home equity is part
of the property split between the parties.56
Perhaps for these reasons, numerous courts, parties,
and commentators who have addressed similar cases in
the tax-foreclosure context discuss the right to a surplus
as related to the homeowner’s equity—and none that I
have found (nor any the majority cites) holds that the
right to surplus proceeds is a freestanding property
interest independent of the underlying equity interest.57

54
See In re Certified Question, 447 Mich at 788 (“To constitute a vested
right, the interest must be something more than such a mere expecta-
tion as may be based upon an anticipated continuance of the present
general laws; it must have become a title, legal or equitable, to the
present or future enjoyment of property . . . .”) (quotation marks and
citation omitted).
55
See note 15 of this opinion.
56
See, e.g., Rogner v Rogner, 179 Mich App 326; 445 NW2d 232 (1989)
(reviewing an award of equity in the marital home).
57
See Dorce v City of New York, 460 F Supp 3d 327 (SD NY, 2020)
(discussing the plaintiffs’ loss of “equity” in their properties in the
context of a takings challenge); Polonsky v Bedford, 173 NH 226,
234-235; 238 A3d 1102 (2020) (referring to the excess “equity” owed to
the taxpayer and holding that when a tax deed is issued, a taking occurs
“requiring that [the government] provide just compensation to the
former owner when, as here, the equity in the property exceeds the
amount owed”); Automatic Art, LLC v Maricopa Co, unpublished opin-
ion of the United States District Court for the District of Arizona, issued
March 18, 2010 (Case No. CV 08-1484-PHX-SRB), pp 2, 3, 6 (discussing
the statutes and constitutional challenges to them as affecting the
property owner’s equity in the real property); Thomas Tool Servs, Inc v
Croydon, 145 NH 218, 220; 761 A2d 439 (2000) (“Assuming that the
512 505 MICH 429 [July
CONCURRING OPINION BY VIVIANO, J.

The right to equity is, in fact, the very right that

plaintiffs rely on here to support their claim
property is worth substantially more than the $370.26 that the defen-
dant paid for it, the defendant has realized an enormous surplus.”);
Syntax, Inc v Hall, 899 SW2d 189, 190 n 1 (Tex, 1995) (“The claim for
excess proceeds concedes the loss of ownership and simply seeks a
return of the excess value that was received at the sale.”); First NH
Bank v Windham, 138 NH 319, 327; 639 A2d 1089 (1994) (holding that
the state constitution required notice of the tax deeding because, in part,
the “tax deeding irreversibly deprives the owner of any equity in the
property,” given that no surplus proceeds were then available); Anchor-
age v Thomas, 624 P2d 271, 273 (Alas, 1981) (finding a statutory right
to surplus proceeds and noting “the basic injustice inherent in requiring
delinquent taxpayers to forfeit the total value of their property far in
excess of taxes due”); Auburn v Mandarelli, 320 A2d 22, 32 (Me, 1974)
(“In the absence of contrary provision by statute or constitution, a
municipality’s title to property acquired under the tax-lien-mortgage-
foreclosure statute is absolute, and the city or town has no power to part
with, nor duty to account for, any surplus value on any” equitable
theory.); Bogie v Barnet, 129 Vt 46, 48, 54; 270 A2d 898 (1970) (finding
a taking of the property to the extent of the difference between the tax
sale bid “and the demonstrated far greater value of the property”
evidenced by a later sale); Balthazar v Mari Ltd, 301 F Supp 103, 106
(ND Ill, 1969) (“[T]he Illinois tax delinquency statutes allow all real
estate owners to recover the surplus value of their land.”), aff’d 396 US
114 (1969); Note, Someone to Lien On: Privatization of Delinquent
Property Tax Liens and Tax Sale Surplus in Massachusetts, 61 BC L Rev
667, 670, 691-694 (2020) (noting that “[e]normously inequitable out-
comes occur as a result [of Massachusetts’s similar tax-foreclosure law]
because property owners can lose all equity in their home” and describ-
ing caselaw as addressing whether the government must return “sur-
plus equity” left after the foreclosure sale); Note, State Theft in Real
Property Tax Foreclosure Procedures, 54 Real Prop Tr & Est L J 93, 105
(2019) (noting that a surplus-retention system like ours “destroys
property owners’ home equity and leaves them with nothing”); Bartell,
Tax Foreclosures as Fraudulent Transfers—Are Auctions Really Neces-
sary?, 93 Am Bankr L J 681, 706 (2019) (arguing that owners concerned
about the price obtainable at a tax sale should preemptively “conduct a
private sale that may generate enough proceeds to pay the taxes in full
and provide the owner any extant equity”); Clifford, Massachusetts Has
a Problem: The Unconstitutionality of the Tax Deed, 13 U Mass L Rev
274, 286-287 (2018) (discussing caselaw that addresses the proceeds as
“surplus equity”) (citation and quotation marks omitted); Kelly, Jr.,
Bringing Clarity to Title Clearing: Tax Foreclosure and Due Process in
the Internet Age, 77 U Cin L Rev 63, 72 (2008) (“The vast majority of
2020] RAFAELI V OAKLAND CO 513
CONCURRING OPINION BY VIVIANO, J.

jurisdictions rely on a combined sale and foreclosure process to make

sure both that the taxes due are paid in full and that any surplus value
in the property is made available to the stakeholders whose interests
have been liquidated.”) (emphasis added).
Courts and parties in Takings Clause challenges to Michigan’s
foreclosure system have focused on the homeowner’s deprivation of
equity. See Rafaeli, LLC v Wayne Co, unpublished opinion of the United
States District Court for the Eastern District of Michigan, issued
June 4, 2015 (Case No. 14-13958), p 8 (“Plaintiffs also claim that the
excess equity in their property was taken without just compensation, in
violation of the Takings Clause of the Fifth Amendment to the United
States Constitution.”); Petition for Writ of Certiorari at 14, Wayside
Church v Van Buren Co, 138 S Ct 380 (2017) (No. 17-88) (“The property
interest at issue here is privately generated and owned equity.”); cf.
Freed v Thomas, unpublished opinion of the United States District
Court for the Eastern District of Michigan, issued November 7, 2018
(Case No. 17-CV-13519), p 2 (“The heart of plaintiff’s complaint is that
this statutory scheme is unconstitutional because it provides no mecha-
nism for the return to the delinquent taxpayer of the ‘surplus equity’
(i.e., the difference between the equity and the tax bill) or, in the event
that the property is sold for less than fair market value, for the return
to the delinquent taxpayer of the difference between the sale proceeds
and the tax bill.”).
A few cases addressing whether a statute provides for surplus to the
homeowner do not mention “equity,” but these cases are not deciding
whether a nonstatutory basis exists for the property right in surplus
proceeds; thus, they do not contradict the regnant interpretation of
“surplus” as stemming from equity. See, e.g., Lake Co Auditor v Burks,
802 NE2d 896 (Ind, 2004) (finding statutory avenues for recovering
surplus); Kelly v Boston, 348 Mass 385; 204 NE2d 123 (1965) (finding no
statutory right to surplus). In addition, a handful of opinions rejecting
constitutional challenges to tax-foreclosure statutes like the one here
have not mentioned “equity,” but they did not examine in any detail the
potential sources of the property right at issue. See Miner v Clinton Co,
541 F3d 464, 474-475 (CA 2, 2008) (rejecting a due-process claim
because the notices were adequate and an equal-protection claim
because no discrimination occurred); Reinmiller v Marion Co, unpub-
lished opinion of the United States District Court for the District of
Oregon, issued October 16, 2006 (Case No. CV 05-1926-PK) (rejecting a
takings claim and stating that Oregon law did not provide any property
right entitling the homeowner to the proceeds, but only discussing the
relevant tax-foreclosure statutes rather than common law). In a few
514 505 MICH 429 [July
CONCURRING OPINION BY VIVIANO, J.

under the Takings Clause.58 One federal district court

provided an insightful discussion on the topic, first
summing up the United States Supreme Court’s
caselaw—the same cases the majority here
discusses—as “mak[ing] clear that a Takings Clause
violation regarding the retention of equity will not
arise when a tax-sale statute provides an avenue for
recovery of the surplus equity.”59 The question in that
case was, as here, “[w]hat if the tax-sale statute does
cases with more detailed constitutional analyses, surplus or excess
proceeds are mentioned without regard to the homeowner’s equity;
nonetheless, the cases do not hold that these proceeds are property
without regard to equity. See Sheehan v Suffolk Co, 67 NY2d 52, 59, 60;
490 NE2d 523 (1986) (“There is no constitutional prohibition against
such a full forfeiture” of the “surplus.”); Ritter v Ross, 207 Wis 2d 476,
484; 558 NW2d 909 (App, 1996) (“We thus consider whether the Ritters
had a property interest in the excess proceeds of the foreclosure
sale . . . .”); Oosterwyk v Milwaukee Co, 31 Wis 2d 513, 517; 143 NW2d
497 (1966) (rejecting an unjust-enrichment claim for surplus proceeds).
58
Plaintiffs’ brief states, “The private property interest at issue in this
case is privately generated and owned equity.” Plaintiffs’ Brief on Appeal
(February 13, 2019) at 11. The majority dismisses this argument, saying
that plaintiffs “conflate equity with surplus proceeds, suggesting that
they are one in the same.” Further, the majority criticizes my analysis as
stating both that the equity of redemption represents an owner’s equity
and also acknowledging that the two are distinct. I see nothing incon-
sistent with noting the fact that, on one hand, the “equity of redemption”
came to represent the homeowner’s interest in the property, i.e., the
equity, but, on the other hand, that there were and are certain
distinctions between the two concepts, such as alienability, see note 50
of this opinion.
The majority goes on to say that it is unnecessary to discuss whether
a property right to equity exists here because the question is whether
the former property owner may collect surplus proceeds. However, it is
necessary to begin the analysis with a vested right in the equity
because, as explained above, there is no such thing as a vested right in
surplus proceeds independent of the right to equity. Additionally, for the
reasons we discuss below, even taken on its own terms, the right to
surplus proceeds set forth in the majority’s opinion is evanescent given
that it can be so easily taken away.
59
Coleman, 70 F Supp 3d at 80 (emphasis added).
2020] RAFAELI V OAKLAND CO 515
CONCURRING OPINION BY VIVIANO, J.

not provide a right to the surplus” or an “avenue for

recover[ing]” it?60 The court continued, “A property
interest in equity could conceivably be created by some
other legal source,” including caselaw—although not
the Takings Clause itself.61 Throughout the opinion,
the property right was characterized as “surplus eq-
uity.”62
In short, the relevant property right in this case is
the taxpayers’ equity interest, not some contingent
right to proceeds if there is a foreclosure sale. Equity
has better historical grounding than any novel and
freestanding right to proceeds—indeed, it is the reason
entitlement to proceeds may exist—and is a common
enough concept that I cannot comprehend the major-
ity’s efforts to avoid it.

C. CONSEQUENCES

My difference of opinion with the majority on this

point is no small matter. Characterizing the property
right at issue as equity has very real consequences
here. For one thing, the GPTA does not clearly abro-
gate any of a person’s property rights in their real
estate or in their equity generally. Instead, the GPTA
simply allocates the surplus proceeds after the tax-
foreclosure sale. Accordingly, it cannot be said to have
abrogated the common-law right to equity.63

60
Id.
61
Id. at 80-81.
62
See, e.g., id.
63
Defendants have not raised the argument that the Legislature
abrogated the common-law right to equity. See Mich Gun Owners, Inc v
Ann Arbor Pub Sch, 502 Mich 695, 709-710; 918 NW2d 756 (2018)
(noting that parties raise the arguments in our adversary system).
Under the regnant interpretive principle noted above, “ ‘legislative
amendment of the common law is not lightly presumed,’ ” and the
516 505 MICH 429 [July
CONCURRING OPINION BY VIVIANO, J.

In addition, the statute contemplates—and indeed,

expressly provides for—a number of scenarios in which
there will be no surplus proceeds. For our purposes, the
first key point in the process occurs when the court
enters the foreclosure judgment. This must occur before
March 30, and the judgment must become effective on
March 31.64 When it becomes effective, the taxpayer
loses his or her redemption rights and absolute title
vests in the government.65 The following day, April 1,
the foreclosing governmental unit obtains the right to
possession.66
Afterward, the state has until the first Tuesday in
July to buy the property from the foreclosing govern-
mental unit for the greater of either the minimum
bid—which equals the debt and various additional
costs67—or the “fair market value.”68 This protects the
“Legislature ‘should speak in no uncertain terms’ when it exercises its
authority to modify the common law.” Dawe v Dr Reuven Bar-Levav &
Assoc, PC, 485 Mich 20, 28; 780 NW2d 272 (2010) (citation omitted).
Like the majority’s view that the Legislature cannot abrogate common-
law property rights extant before 1963, this principle raises separation-
of-powers concerns as well. See A Matter of Interpretation, pp 27-28. But
it is longstanding, and no party has challenged it here. Under this
canon, it is reasonably apparent that the Legislature left untouched the
taxpayer’s common-law right to equity. Nothing in the statute clearly
displaces that right. The same could not be said, however, for the
majority’s separate right to surplus proceeds, which the Legislature
very clearly attempted to extinguish in the GPTA. In any event, the
parties’ failure to address this argument means that it should not be
resolved in this case.
64
MCL 211.78k(5). These dates are for uncontested cases. The judg-
ment in contested cases becomes effective 10 days after the hearing, and
21 days after entry of the judgment the taxpayer loses his or her
redemption rights and absolute title vests in the government.
MCL 211.78k(5) and(6). In contested cases, the government obtains the
right to possession 22 days after judgment enters. MCL 211.78g(1).
65
MCL 211.78k(5) and (6).
66
MCL 211.78g(1).
67
MCL 211.78m(16)(a).
68
MCL 211.78m(1).
2020] RAFAELI V OAKLAND CO 517
CONCURRING OPINION BY VIVIANO, J.

foreclosing unit, which would be certain to recoup the

debt and costs if the state exercises its right to pur-
chase. And under this option the property might sell
for a price reflecting the debt and the equity. But if the
state declines, the next series of options ensures that
no surplus will occur. Next, the “city, village, or town-
ship” where the property is located can purchase the
property “for a public purpose” at the minimum bid,
meaning that no surplus would result.69 If they pass on
the purchase, then the county has the chance to buy it
(without being required to have a “public purpose” for
doing so), again for the minimum bid.70 If any of these
last few governmental units—city, village, township, or
county—buys the property and subsequently sells it,
any excess proceeds (less additional costs) are distrib-
uted in various funds.71
If the property goes unpurchased after all this, the
foreclosing unit holds one or more auctions from July
to November.72 Although the statute prescribes notice
requirements, it allows the foreclosing unit to “adopt
procedures governing the conduct of the sale . . . .”73 To
sell the property, the foreclosing unit must receive at
least the “minimum bid.”74 If the property goes unpur-
chased after an auction, the city, village, township, or
county can buy it for the minimum bid without needing
a public purpose to do so.75 At the final auction, there is

69
Id.
70
Id.
71
Id.
72
MCL 211.78m(2).
73
Id.
74
Id.
75
MCL 211.78m(3).
518 505 MICH 429 [July
CONCURRING OPINION BY VIVIANO, J.

no minimum bid.76 Property that is not purchased is

transferred to the city, village, or township where it is
located unless the unit objects, in which case the
property goes to the foreclosing unit.77
In light of this statutory framework, the majority’s
focus on the surplus proceeds as the relevant property,
and thus the postsale retention as the taking, produces
puzzling results. Because “a property owner has a claim
for a violation of the Takings Clause as soon as a
government takes his property for public use without
paying for it,”78 under the majority’s theory, no consti-
tutional issues occur until the surplus proceeds are
retained. It does not matter that once title has vested
in the government without chance of redemption, the
taxpayer’s property—his or her equity—has been
taken. Consequently, the majority’s view of the case
would seemingly be that if the property does not sell at
auction and is simply transferred to a governmental
unit, the taxpayer is out of luck: no proceeds, let alone
a surplus, have been produced or retained by the
government.79 Perhaps worse still, governmental units
have numerous opportunities to purchase the property
for the minimum bid, i.e., for the debt (and costs), and
thus obtain it for an amount that will usually be much
less than fair market value. Yet in those cases, too,

76
MCL 211.78m(5).
77
MCL 211.78m(6) and (7).
78
Knick v Scott Twp, 588 US ___, ___; 139 S Ct 2162, 2170; 204 L Ed
2d 558 (2019).
79
Of course, the majority might counter that this is a question for
another day because the properties here were sold. But it is hard to
imagine what the majority would do in such a case besides either
denying the takings claim under the theory it adopts here or reconsid-
ering whether it is based on the taxpayer’s right to the equity in his or
her property.
2020] RAFAELI V OAKLAND CO 519
CONCURRING OPINION BY VIVIANO, J.

because no surplus would result, the majority leaves

the taxpayer without a remedy.
The better view, under the law described above, is
that the property taken is the taxpayer’s equity and
that this occurs when title vests in the government
with no opportunity for redemption. In that circum-
stance, if the government retains the property, the
taxpayer would be able to seek compensation for the
deprivation of his or her equity.80 If the property is sold,
any surplus represents the remaining equity in the
property and is owed as the just compensation due the
taxpayer.81 Returning the surplus would usually sat-
isfy the Takings Clause by “leav[ing the property
owner] ‘in as good as position as if his lands had not
been taken,’ ”82 i.e., by leaving the property owner with
the representation of what was taken.
To elaborate on this last point, awarding the surplus
as “just compensation” only makes sense in light of the
underlying principle that the surplus represents the
owner’s equity.83 It is, of course, possible that the
surplus might not capture the value of a taxpayer’s
property.84 But the “just compensation” requirement
does not require local governments to impoverish

80
See Polonsky, 173 NH at 235 (noting that the statutory scheme did
not require the government to sell the foreclosed property but that, in
those cases, the government has conflicts with the Takings Clause by
failing to pay over the equity).
81
See note 52 of this opinion and accompanying text.
82
Dep’t of Transp v Tomkins, 481 Mich 184, 198; 749 NW2d 716 (2008)
(citation omitted).
83
See note 52 of this opinion.
84
See State Theft, 54 Real Prop Tr & Est L J at 126 (noting that
limiting the taxpayer to the surplus might cause him or her to lose some
equity but arguing that this result might be consistent with the “just
compensation” requirement).
520 505 MICH 429 [July
CONCURRING OPINION BY VIVIANO, J.

themselves.85 Thus, taxpayers seeking some specula-

tive value beyond the surplus realized in the tax sale
might often lack meritorious claims. It is also worth
noting, in this regard, that the taxpayers would be free
to conduct a private sale of the property during the
redemption period prior to title vesting in the govern-
ment and, by failing to do so, might be considered to
have agreed to the value produced by the tax-
foreclosure sale.86
On the other hand, by limiting the compensation to
the surplus (when one exists), the majority risks de-
priving taxpayers of “just compensation.” As demon-
strated above, the statute gives governmental units
the option to ensure that there will be no surplus.
Under the majority’s regime, a rational governmental
actor is incentivized to buy properties that have a
market value above the minimum bid amount that
must be paid or to take other steps to limit or eliminate
surpluses. For example, both the Legislature in con-
structing the statutory framework and the foreclosing

85
See United States v Commodities Trading Corp, 339 US 121, 123; 70
S Ct 547; 94 L Ed 707 (1950) (“Fair market value has normally been
accepted as a just standard. But when market value has been too
difficult to find, or when its application would result in manifest
injustice to owner or public, courts have fashioned and applied other
standards. . . . [T]he dominant consideration always remains the same:
What compensation is ‘just’ both to an owner whose property is taken
and to the public that must pay the bill?”) (citation omitted); In re State
Hwy Comm’r, 249 Mich 530, 535; 229 NW 500 (1930) (“Just compensa-
tion should neither enrich the individual at the expense of the public nor
the public at the expense of the individual.”).
86
See Tax Foreclosures, 93 Am Bankr L J at 706-707 (arguing that
courts reviewing whether foreclosure laws protect the debtor’s “equity”
should consider that the debtor’s “right of redemption provides to the
owner of the property the opportunity to realize the full fair market
value of the property” less the taxes owed, and the debtor’s failure to
avail themselves of this relief constitutes agreement to the “price
obtained by the state foreclosure process”).
2020] RAFAELI V OAKLAND CO 521
CONCURRING OPINION BY VIVIANO, J.

unit in prescribing sale procedures could design rules

that diminish the probability of obtaining fair market
value in the tax-foreclosure sale. Indeed, while it might
be true that most sale prices now do not even cover the
taxes owed, the foreclosing unit would have little
incentive to conduct a sale that earns anything more
than the delinquent tax sum.87 Consequently, I would
not now rule out the possibility that “just compensa-
tion” might require something greater than the sur-
plus in a particular case, especially in cases in which
the government purchased the property for the mini-
mum bid.
But we have no reason to decide that issue in this
case because, although plaintiffs nominally distin-
guish equity and surplus, they have offered no argu-
ment suggesting that the tax foreclosures here failed to
obtain a fair price for their properties.

III. CONCLUSION

Although I agree with the majority as to the ulti-

mate disposition of this case, I disagree with its rea-
soning. I would not define the constitutional term
“property” by merely citing an example of what the
ratifiers might have thought would fall within the
meaning of that term. Instead, I would give the word
its ordinary meaning at the time the Constitution was
ratified and then apply that meaning to the case at
hand. In addition, I would examine the relevant prop-
erty right: the taxpayers’ equity in the real property.
Equity falls within the semantic scope of “property”

87
The majority seems untroubled by the possibility that what it might
have taken away with one hand—i.e., the Legislature’s authority to
prospectively abrogate the supposed common-law right to surplus
proceeds—it has given with the other by defining the right so that the
Legislature can shrink or erase those surplus proceeds.
522 505 MICH 429 [July
CONCURRING OPINION BY VIVIANO, J.

under our Constitution. And the Legislature did not

purport to abrogate the taxpayer’s equity. Therefore, a
taking occurred when title to plaintiffs’ property was
vested in the government without any possibility of
redemption. In this case, I agree with the majority that
plaintiffs are owed the surplus proceeds from the
tax-foreclosure sales.
ORDERS IN CASES
 ORDERS IN CASES 851

ORDERS ENTERED IN
CASES BEFORE THE
SUPREME COURT
Summary Disposition November 1, 2019:

PEOPLE V VAN BUREN, No. 159291; Court of Appeals No. 339119.

Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
vacate the judgment of the Court of Appeals and we remand this case to
the Wayne Circuit Court for an evidentiary hearing pursuant to People
v Ginther, 390 Mich 436 (1973), for a determination of whether the
defendant was denied the effective assistance of trial counsel. We do not
retain jurisdiction.
PEOPLE V FRANK KING, No. 159442; Court of Appeals No. 346559.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
remand this case to the Court of Appeals for consideration as on leave
granted to address: (1) whether the defendant’s waiver of his Sixth
Amendment right to counsel was constitutionally valid; and (2) if so,
what effect, if any, the defendant’s subsequent no contest plea had on
that waiver. We do not retain jurisdiction.

Order to Pay Costs Entered November 1, 2019:

In re THERESA M BRENNAN, JUDGE 53RD DISTRICT COURT, No. 157930. On

order of the Court, the Judicial Tenure Commission’s Bill of Costs is
considered, and the respondent, Theresa M. Brennan, is ordered to pay
costs of $16,500.00 to the Commission.
CAVANAGH, J. (dissenting). I respectfully dissent. I disagree with the
Judicial Tenure Commission’s position that the costs, fees, and expenses
requested by the Commission and imposed by the majority under MCR
9.202(B)1 are not a sanction. I believe they are, and I do not believe that
this Court possesses the authority to impose sanctions beyond those
specified in Const 1963, art 6, § 30(2). In light of the fact that a majority
of this Court rejected this position when it adopted the amendment of
MCR 9.202(B) in 2005 and, more importantly, given that respondent
here has not challenged the constitutionality of this sanction, I agree
with the majority that the costs, fees, and expenses requested by the
Commission should be imposed under MCR 9.202(B). I disagree, how-
ever, with the Court’s decision to impose less than the amount requested
and substantiated by the Commission. While it is unclear from the
language of MCR 9.202(B) whether the costs, fees, and expenses
imposed must be directly attributable to fraudulent, deceitful, and
intentionally misrepresentative conduct, I am persuaded by the Com-

1
Prior to September 1, 2019, this provision was located in MCR
9.205(B).
852 505 MICHIGAN REPORTS
mission that even if that were the case, respondent’s deceitful conduct
permeated all aspects of the proceedings and further apportionment
cannot be more narrowly tailored based on the record in this case. Given
this conclusion, and because respondent offers no factual or legal basis
for rejecting any of the requested costs, fees, and expenses or for
otherwise reducing the amount requested, I would impose the full
amount requested by the Commission.

I. CONSTITUTIONAL AUTHORITY

In 2005, the Court amended then MCR 9.205 to include the follow-
ing:

In addition to any other sanction imposed, a judge may be ordered

to pay the costs, fees, and expenses incurred by the commission in
prosecuting the complaint only if the judge engaged in conduct
involving fraud, deceit, or intentional misrepresentation, or if the
judge made misleading statements to the commission, the com-
mission’s investigators, the master, or the Supreme Court. [MCR
9.202(B).]
The constitutionality of this amendment was contested from its incep-
tion. Justice WEAVER authored a dissent,2 arguing that the amendment
was unconstitutional, and Justice CORRIGAN authored a concurrence,3
arguing the opposite. I write today because I question the propriety of
this amendment to the court rule.
The Michigan Constitution provides:
On recommendation of the judicial tenure commission, the
supreme court may censure, suspend with or without salary, retire
or remove a judge for conviction of a felony, physical or mental
disability which prevents the performance of judicial duties,
misconduct in office, persistent failure to perform his duties,
habitual intemperance or conduct that is clearly prejudicial to the
administration of justice. The supreme court shall make rules
implementing this section and providing for confidentiality and
privilege of proceedings. [Const 1963, art 6, § 30(2) (emphasis
added).]
The Constitution, therefore, contemplates four specific types of disci-
pline: (1) censure, (2) suspension (with or without pay), (3) retirement,
or (4) removal. That the Constitution provides for only these four types
of discipline suggests the exclusion of all others under the well-known

2
MCR 9.205, 474 Mich ccli (2005) (WEAVER, J., dissenting). Justice M.
F. CAVANAGH also dissented from the decision to adopt the amendment,
but he did not provide an explanation for his dissent. See id. (CAVANAGH,
J., dissenting).
3
Id. at ccxlix (CORRIGAN, J., concurring).
 ORDERS IN CASES 853
doctrine of expressio unius est exclusio alterius. See Pittsfield Charter
Twp v Washtenaw Co, 468 Mich 702, 712 (2003) (“[T]he expression of one
thing suggests the exclusion of all others . . . .”).
The imposition of costs provided for in MCR 9.202(B) goes beyond the
discipline contemplated in our Constitution and authorizes this Court to
impose an additional form of punishment on a respondent who has
engaged in certain types of dishonest conduct. Imposing costs is plainly
not a censure, suspension, compelled retirement, or removal. And the
fact that MCR 9.202(B) provides that costs may be imposed “[i]n
addition to any other sanction” strongly suggests that the costs them-
selves are a type of, or “another,” sanction. The only contrary assertion
offered by the Commission is that the assessment of costs is not a
sanction, but “simply a recognition that there is an actual expense to the
taxpayers of the State of Michigan to prosecute ethical violations
involving deceit perpetrated by a respondent judge.” While this obser-
vation is undoubtedly true, I fail to see how it justifies an expansion of
this Court’s constitutional authority.
I am also not persuaded that, whether or not the costs, fees, and
expenses are a “sanction,” they are legitimately imposed by way of this
Court’s authority to make rules “implementing” Const 1963, art 6, § 30
under Subsection (2) of that provision. Expanding the forms of discipline
beyond that envisioned by that section of the Constitution is not simply
“implementing” that section. Furthermore, I would not conclude that
the Court’s general power to “establish, modify, amend and simplify the
practice and procedure in all courts of this state,” Const 1963, art 6, § 5,
overrides the specific instruction in § 30(2) to “implement[]” the section.
These observations aside, I recognize that a majority of this Court
deemed the court rule amendment constitutional when it was adopted
in 2005. Moreover, respondent does not present an argument to the
contrary. In fact, in respondent’s briefing she specifically indicated
agreement with Justice CORRIGAN’s position that the amendment of MCR
9.202 was a legitimate exercise of this Court’s constitutional authority.
Accordingly, although I feel compelled to raise these concerns, I recog-
nize that the Court need not address this argument in this matter.

II. APPORTIONMENT OF COSTS

Assuming the Court has the constitutional authority to impose costs,

fees, and expenses incurred in prosecuting the complaint, I do not
believe that it is clear, from the language of MCR 9.202(B), whether
those costs, fees, and expenses are required to be directly apportioned to
costs attributable to the fraudulent, deceitful, and intentionally misrep-
resentative conduct of the respondent and, if so, how that apportion-
ment should be made in a particular case.4 Since the court rule’s
amendment, this Court has yet to offer meaningful guidance on how to

4
It can be argued that, because the costs are only triggered by fraud,
deceit, and intentional misrepresentation, they should be directly tied to
the conduct that prompted their assessment. Indeed, in her statement
854 505 MICHIGAN REPORTS
properly apportion costs, fees, and expenses under MCR 9.202(B). The
majority’s decision in this case continues this practice. I believe that the
Commission and respondents alike deserve such guidance from this
Court. At a minimum, I would hold that any costs imposed because of a
respondent’s deceitful conduct must be (a) incurred postcomplaint, and
(b) actually incurred by the Commission. This rule is supported by the
clear language of court rule, which indicates that costs based on a
respondent’s deceitful conduct must be incurred by the Commission in
prosecuting the complaint.
While I recognize that the above provides only minimum guidance,
this case provides a poor vehicle for outlining any further guidance on
how to apportion costs, given the fact that respondent’s deceit and
intentional misrepresentation ran throughout the prosecution of the
multicount complaint in this case. Here, the Commission persuasively
argues that costs, fees, and expenses incurred as a result of respondent’s
deceit throughout the entirety of the prosecution cannot be more
narrowly apportioned because her deceitful conduct permeated all
aspects of the proceedings. Therefore, it asks that the Court impose
100% of the costs requested. Respondent fails to offer any legitimate
argument to the contrary and provides no legal or factual basis for this
Court to reject the Commission’s requested amount.5 Accordingly, I
would grant the Commission’s request for the full amount of costs in the
amount of $35,501.68.

concurring in the decision to adopt the amendment of MCR 9.202(B),

Justice CORRIGAN stated that, rather than authorizing an additional
form of discipline, “assessing costs in a [Judicial Tenure Commission
(JTC)] proceeding provides a procedural mechanism to protect govern-
mental resources, especially when a JTC investigation requires the
expenditure of additional resources because of a judge’s acts of misrep-
resentation.” MCR 9.205, 474 Mich at ccl (CORRIGAN, J., concurring)
(emphasis added).
5
Respondent’s arguments in dispute of the costs, fees, and expenses
requested by the Commission rest on statutory schemes that are
inapplicable. Respondent relies on the Revised Judicature Act (RJA),
MCL 600.101 et seq., to argue that the Commission is not entitled to
reimbursement for the master’s services because a master is not a
person listed in that statute whose fees can be taxed or awarded.
However, the RJA pertains to what may be taxed as costs in the context
of court proceedings, not judicial discipline proceedings. Furthermore,
MCL 600.2405(2) specifically states that costs may be taxed for “[m]at-
ters specially made taxable elsewhere in the statutes or rules.” The costs
imposed by MCR 9.202(B) fall into this category. Respondent makes
similar arguments regarding the amount of expenses related to the
master’s compensation, MCL 600.226, and the cost of transcript fees
prepared by court reporters, MCL 600.2543. Again, these statutory
limitations are not applicable to judicial discipline proceedings. The
compensation schedule for “retired judge[s] . . . perform[ing] judicial
 ORDERS IN CASES 855
III. CONCLUSION

Operating under the assumption that imposition of fees, costs, and

expenses under MCR 9.202(B) is within this Court’s constitutional
authority, I would impose 100% of the Commission’s requested costs
because respondent provides this Court with no factual or legal basis to
question that $35,501.68 was in fact incurred by the Commission in
prosecuting the complaint and was attributable to respondent’s deceit-
ful conduct. Because the Court imposes less than this amount, I
respectfully dissent.
CLEMENT, J., joins the statement of CAVANAGH, J.

Order Granting Oral Argument in Case Pending on Application for

Leave to Appeal Entered November 1, 2019:

PEOPLE V KRISTOPHER HUGHES, No. 158652; Court of Appeals No.

338030. The appellant shall file a supplemental brief within 42 days of
the date of the order appointing counsel, addressing: (1) whether the
probable cause underlying the search warrant issued during the prior
criminal investigation authorized police to obtain all of the defendant’s
cell phone data; (2) whether the defendant’s reasonable expectation of
privacy in his cell phone data was extinguished when the police obtained
the cell phone data in a prior criminal investigation; (3) if not, whether
the search of the cell phone data in the instant case was within the scope
of the probable cause underlying the search warrant issued during the
prior criminal investigation; (4) if not, whether the search of the cell
phone data in the instant case was lawful; and (5) whether trial counsel
was ineffective for failing to challenge the search of the cell phone data
in the instant case on Fourth Amendment grounds. In addition to the
brief, the appellant shall electronically file an appendix conforming to
MCR 7.312(D)(2). In the brief, citations to the record must provide the
appendix page numbers as required by MCR 7.312(B)(1). The appellee
shall file a supplemental brief within 21 days of being served with the
appellant’s brief. The appellee shall also electronically file an appendix,
or in the alternative, stipulate to the use of the appendix filed by the
appellant. A reply, if any, must be filed by the appellant within 14 days

duties in any court in the state,” MCL 600.226(1), is different from a

master’s fee for conducting an investigation on behalf of the Commis-
sion. Similarly, MCL 600.2543 specifically refers to “circuit court report-
ers,” but this proceeding did not occur in a circuit court. Instead, the
Commission used freelance court reporters whose fees are not set by
statute. Finally, respondent argues that the cost of copies should be
governed by the RJA, specifically MCL 600.2543 and MCL 600.2549.
Beyond the fact that the RJA is inapplicable to the instant proceeding
for the above stated reasons, the Commission’s explanation regarding
how electronically “converting” is different from “copying” is convincing.
856 505 MICHIGAN REPORTS
of being served with the appellee’s brief. The parties should not submit
mere restatements of their application papers.
The Prosecuting Attorneys Association of Michigan and the Criminal
Defense Attorneys of Michigan are invited to file briefs amicus curiae.
Other persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae.

Leave to Appeal Denied November 1, 2019:

PEOPLE V CEDRIC SIMPSON, No. 159327; Court of Appeals No. 345898.

In re WRIGHT, MINORS, No. 160233; Court of Appeals No. 346194.
In re IV MELENDEZ, MINOR, No. 160250; Court of Appeals No. 346849.
BAUER V WAIDELICH, No. 160253; Court of Appeals No. 345756.

Summary Disposition November 8, 2019:

PEOPLE V HOLMES, No. 156332; Court of Appeals No. 337417. By order

of July 3, 2018, the application for leave to appeal the July 6, 2017 order
of the Court of Appeals was held in abeyance pending the decision in
People v Straughter (Docket No. 156198). On order of the Court, leave to
appeal having been denied in Straughter on July 19, 2019, 504 Mich 930
(2019), the application is again considered and, pursuant to MCR
7.305(H)(1), in lieu of granting leave to appeal, we vacate the February 9,
2017 order of the Wayne Circuit Court denying the defendant’s motion for
relief from judgment, and we remand this case to the trial court for
reconsideration of that motion. The trial court’s stated basis for denying
the motion was that “Defendant has failed to demonstrate good cause and
actual prejudice under MCR 6.508(D). Furthermore, defendant’s claims
have no merit.” However, the order failed to “include a concise statement
of the reasons for the denial,” as required by MCR 6.504(B)(2). We do not
retain jurisdiction.
MARKMAN, J. (dissenting). For the reasons stated in my dissent in
People v Finnie, 504 Mich 968, 968 (2019) (MARKMAN, J., dissenting), I
respectfully dissent from this Court’s order vacating the judgment of the
trial court and remanding for reconsideration of Holmes’s motion for
relief from judgment. I offer two further observations. First, unlike in
Finnie, the trial court below specifically cited the rule governing
Holmes’s motion and further identified the threshold showings for
entitlement to relief that Holmes failed to satisfy. Thus, today’s order
almost certainly suggests the invalidity of a far greater number of trial
court orders denying motions for relief from judgment than did our order
in Finnie. Any perusal of the applications for leave to appeal filed in this
Court should make this clear. Second, the majority continues to eschew
providing any guidance regarding what satisfies the “concise statement
of the reasons for the denial” requirement in MCR 6.504(B)(2). If, for
 ORDERS IN CASES 857
example, the court on remand provides a citation to a published case from
the Court of Appeals that forecloses Holmes’s argument, would this be
sufficient? We do not know because our order summarily cites a court rule
without more, thus setting forth no greater “reasoning” than does the
trial court in its order. Const 1963, art 6, § 6 requires this Court to supply
a “concise statement of the facts and reasons,” just as MCR 6.504(B)(2)
requires trial courts to supply a “concise statement of the reasons for the
denial.” And in failing to supply greater guidance to trial courts across
this state that review thousands of motions for relief from judgment each
year, the majority continues to hold trial courts to a higher standard than
that to which we hold ourselves by giving distinctive meanings to
“reason[ing]” in similar contexts. Exactly as the “analysis” of this Court’s
order communicates: (1) the court rule governing the obligation of the
trial court, (2) the standard required to be satisfied by the trial court, and
(3) the conclusion that such standard was not satisfied, the trial court’s
order communicates: (1) the court rule governing Holmes’s motion, (2) the
standard required to be satisfied by Holmes, and (3) the conclusion that
such standard was not satisfied. I would deny leave to appeal.
ZAHRA, J., joins the statement of MARKMAN, J.
PEOPLE V KESIA MALONE, No. 159279; Court of Appeals No. 333852.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
reverse the judgment of the Court of Appeals, vacate the sentence of the
Kent Circuit Court, and remand this case to the trial court for resen-
tencing. The trial court did not justify its sentence with appropriate
reasons. Sentencing courts must consult the applicable guidelines range
and take it into account when imposing a sentence and justify the
sentence imposed, see People v Lockridge, 498 Mich 358, 392 (2015), but
nothing in the record suggests the trial court considered the defendant’s
applicable range. We do not retain jurisdiction.
MARKMAN, J. (dissenting). I respectfully dissent from this Court’s
order peremptorily reversing the judgment of the Court of Appeals and
remanding Kesia Dionna Malone’s case for resentencing. The trial court,
in support of imposing a sentence tied to the statutory maximum for
first-degree retail fraud, cited Malone’s criminal history and the fact
that she was serving two probation sentences when she committed her
instant offense. Malone’s criminal record—21 convictions, 11 of which
are for various degrees of retail fraud—speaks for itself. That shortly
before her instant offense Malone received lenient sentences on a pair of
convictions for first-degree retail fraud as a fourth-offense habitual
offender and that she was on probation at the time of her instant offense
also speaks for itself. Additionally, although not relied upon by the trial
court, the then 35-year-old Malone involved a 16-year-old in her theft of
over a thousand dollars’ worth of alcohol. Considering Malone’s offense
history and the facts of her instant offense, Malone fits exactly the
profile of an offender the Legislature likely envisioned in setting the
maximum term of imprisonment for the offense of first-degree retail
fraud. Although the trial court should have expressly laid out and
assessed defendant’s guidelines minimum sentence range, defendant
failed to object, thus subjecting the error to “plain error” review. People
v Carines, 460 Mich 750, 763-764 (1999). And because of defendant’s
858 505 MICHIGAN REPORTS
record of extreme recidivism and the need to better protect the public by
her incapacitation, defendant simply cannot satisfy the prejudice prong
of plain-error review, and I would not expend further judicial resources
by remanding this case for resentencing. But although I dissent from
this Court’s order, I do encourage the trial court on remand to engage in
a more focused and specific explanation of its sentence.
ZAHRA, J., joins the statement of MARKMAN, J.

Leave to Appeal Denied November 8, 2019:

In re MCGEE/SPENCER, MINORS, No. 160220; Court of Appeals No.

347441.
In re MCGEE/SPENCER, MINORS, No. 160222; Court of Appeals No.
347442.
In re ALTANTAWI, MINORS, No. 160254; Court of Appeals No. 345779.

Summary Disposition November 15, 2019:

MENARD V IMIG, No. 158563; Court of Appeals No. 336220. On

November 7, 2019, the Court heard oral argument on the application for
leave to appeal the September 6, 2018 judgment of the Court of Appeals.
On order of the Court, the application is again considered and, pursuant
to MCR 7.305(H)(1), in lieu of granting leave to appeal, we reverse the
judgment of the Court of Appeals. As noted by Judge METER in his dissent,
when viewed in a light most favorable to the plaintiff, the “plaintiff
presented sufficient evidence that the defective road was a proximate
cause of” the injuries in this case. Menard v Imig, unpublished per curiam
opinion of the Court of Appeals, issued September 6, 2018 (Docket No.
336220) (METER, J., dissenting), p 1. Specifically, there is evidence that the
defective road was more than the “condition or occasion affording oppor-
tunity for the other event to produce the injury”; rather, it “put in motion
the agency by which the injuries [were] inflicted . . . .” Singerman v Muni
Serv Bureau, Inc, 455 Mich 135, 145 (1997) (quotation marks and citation
omitted). We remand this case to the Court of Appeals for consideration of
the issues raised by the defendants but not addressed by that court
during its initial review of this case.
In re AFFLECK/KUTZLEB/SIMPSON, MINORS, No. 160235; Court of Appeals
No. 347045. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to
appeal, we vacate that part of the judgment of the Court of Appeals
addressing the trial court’s best-interest determinations, and we re-
mand this case to the Oakland Circuit Court for reconsideration of
whether terminating respondent’s parental rights is in the best inter-
ests of each child. MCL 712A.19b(5). Petitioner did not consider recom-
mending a guardianship for KPA and BEK with respondent’s mother
because of a purported departmental policy against recommending
guardianship for children under the age of 10. Absent contrary statutory
language, such a generalized policy is inappropriate. On remand, the
 ORDERS IN CASES 859
trial court shall address whether guardianship is appropriate for KPA
and BEK as part of its best-interest determinations without regard to a
generalized policy disfavoring guardianship for children under the age
of 10. See In re Timon, 501 Mich 867, 867 (2017) (“On remand, the trial
court shall make an individualized determination as to whether termi-
nating respondent’s parental rights is in the best interests of respon-
dent’s youngest child without regard to a generalized policy disfavoring
guardianship for children under the age of 14.”). In addition, as part of
its best-interest determinations, the court shall consider the sibling
relationships, although the court shall decide the best interests of each
child individually. See In re Olive/Metts Minors, 297 Mich App 35, 42
(2012). In all other respects, leave to appeal is denied, because we are
not persuaded that the remaining question presented should be re-
viewed by this Court.

Leave to Appeal Denied November 15, 2019:

PEOPLE V BENSCH, No. 159834; reported below: 328 Mich App 1.

VIVIANO, J. (concurring). I concur in the Court’s denial order and
write separately to explain my decision. This Court may exercise its
discretion to deny leave when we determine that, despite the obvious
and significant impact of the case on the parties, the Court does not
believe that the legal issues raised in the appeal are of sufficient
statewide import for the Court to intervene. See MCR 7.305(B)(3)
(including as one alternative ground for granting leave that the appli-
cation “show[s] that . . . the issue involves a legal principle of major
significance to the state’s jurisprudence.”). The prosecutor here concedes
something that I also know to be true from my time as a trial judge:
criminal defendants very rarely prefer jail time or a prison sentence over
probation. And when that rare circumstance occurs, trial judges rou-
tinely oblige the defendant—after all, why would a trial judge sentence
the defendant to a probationary sentence when the defendant has
already indicated that he or she is unable or unwilling to comply with
the terms and conditions of probation? Probation is an alternative to
incarceration that “is granted in the hope of rehabilitating the defen-
dant . . . .” People v Gallagher, 55 Mich App 613, 619 (1974) (cleaned up).
There would appear to be little hope of rehabilitating a defendant who
refuses in advance to comply with the terms and conditions of his
probation, especially since the only sanction left for the court to impose
is the very term of incarceration already requested by the defendant.
This is all another way of saying that, even if the dissenting justices’
legal analysis is correct—a conclusion subject to debate—why spend
considerable judicial resources resolving the issue when it arises so
infrequently and in such strange circumstances?
I am not inclined to intervene here for yet another reason: the
sentence imposed by the trial judge appears to be an effort to evade our
rule requiring concurrent sentences in the absence of statutory author-
ity for consecutive sentences. See People v Sawyer, 410 Mich 531, 534
(1981). See also In re Petition of Bloom, 53 Mich 597, 598 (1884). Here,
although no statute authorized consecutive sentencing, the trial judge
860 505 MICHIGAN REPORTS
crafted a sentence that would essentially allow for at least the possibil-
ity of a consecutive sentence by imposing a jail sentence in the first case
and a probationary sentence in the second. Rather than the defendant
receiving the maximum term of incarceration (one year) in both cases
and having those terms run concurrently, he received the maximum
term only in the first case. He then faces the same term again in the
second case if he fails to complete his term of probation successfully.
Because the sentence in the second case may be imposed after comple-
tion of the defendant’s first sentence, the two sentences would be, in
essence, consecutive sentences. Thus, even if the dissenting justices’
analysis were correct and the legal issue were significant enough to be
vindicated in an appropriate case, I also would not intervene here
because it would sanction the trial judge’s end run around our long-
standing rule regarding concurrent sentencing.
For these reasons, I concur in the Court’s denial order.
CLEMENT, J. (concurring). I concur in the Court’s order denying leave
to appeal. Regardless of what one thinks of the Court of Appeals’
attention to its own precedents interpreting the law of probation, I
believe that the text and structure of the Code of Criminal Procedure
indicate that a defendant must consent to a sentence of probation. First,
MCL 771.4 says that “probation is a matter of grace,” and a “matter of
grace” is defined as “[a] situation in which a decision-maker uses a high
degree of discretion in deciding whether to grant some form of relief,”
Black’s Law Dictionary (11th ed) (emphasis added). It is difficult for me
to see how something involuntarily imposed on a party is a “form of
relief,” especially since “relief” is defined as “[t]he redress or benefit . . .
that a party asks of a court.” Id. (emphasis added). Second, the structure
of the probation system suggests that a defendant must agree to be
placed on probation. Because MCL 771.3(2)(b) allows the trial court to
impose a fine (but without limits), the trial court is not bound by the
sentencing restrictions otherwise provided by the Michigan Penal Code.
See, e.g., People v Oswald, 208 Mich App 444, 445-446 (1995) (allowing
a fine of $1500 as a condition of probation for a crime which the
Michigan Penal Code caps the allowable fine at $1000). Indeed, MCL
771.3(3) allows a trial court to “impose [any] other lawful conditions of
probation as the circumstances of the case require or warrant or as in its
judgment are proper,” under which “judges have great discretion . . .
limited only by the requirement that conditions be lawful,” keeping in
mind that “[t]here is no ultimate catalogue of legal or illegal terms.”
People v Johnson, 92 Mich App 766, 768 (1979). The manner in which a
probationary sentence can deviate from the restrictions the Legislature
has otherwise placed on a court’s sentencing power and discretion is a
structural indication that a sentence of probation requires the consent of
the defendant; if it could be involuntarily imposed, the Michigan Penal
Code would only limit a sentencing court to the extent that a court chose
to be limited, which does not seem to me to be any real limit at all.1

1
The dissent correctly notes that unlawful conditions of probation can
be appealed. I still maintain that the broad flexibility the trial court has
 ORDERS IN CASES 861
For these reasons, I concur in the Court’s order denying leave to
appeal.
MARKMAN, J. (dissenting). I respectfully dissent and instead would
affirm the unremarkable proposition that within our state’s justice
system, it is the trial court that determines criminal sentences and not
the defendant. And in dissenting from this order, I would also affirm the
equally unremarkable proposition that in reviewing criminal sentences,
the appellate courts of this state, including this Court, must affirm
criminal sentences in the absence of unconstitutionality, unlawfulness,
or abuse of discretion. Despite these commonplace propositions, the
district court here has imposed a probationary sentence—one within the
scope of its legal judgment—only to have the circuit court strike down
that sentence and the Court of Appeals to affirm, on the grounds that the
defendant must be allowed to “waive” his sentence and demand instead
a sentence more to his liking—oddly, to be sure, a sentence of incarcera-
tion in lieu of a sentence of probation but, perhaps more rationally
understood, a sentence allowing defendant to serve less cumulative time
under state supervision for concurrent convictions of operating while
intoxicated. Indisputably, criminal defendants are entitled to argue for
punishments in what they view as their best interest, and they are
entitled to urge these views upon the trial court, and they are entitled
even to apprise the court that, if given a probationary sentence, they
would violate a condition of probation and thus compel the court to
reincarcerate them. However, where the defendant fails in these pur-
suits to persuade the trial court as to an appropriate sentence, it is the
court that determines a criminal sentence, not the defendant himself,

under MCL 771.3(3), when contrasted with the constrained sentencing

discretion trial courts possess under the Michigan Penal Code, suggests
that a defendant must accept being placed on probation, with appeals
from unlawful conditions of probation available when a defendant wants
probation (and thus to avoid incarceration), but believes a particular
term of probation is unduly onerous. See, e.g., People v Higgins, 22 Mich
App 479 (1970) (probationary term requiring defendant not to play
college or professional basketball held unlawful). In any event, however,
what apparently cannot be appealed, as a condition of probation, is a
penal fine in excess of the maximum authorized by the Michigan Penal
Code. See Oswald, 208 Mich App at 445-446. Even assuming that any
such fine must still be reasonable—presumably a $100,000 assessment
in Oswald would not have passed muster—I believe the trial court’s
ability to exceed the clearly delineated boundaries for fines expressed in
the Michigan Penal Code when a defendant is sentenced to probation is
a structural indication that the defendant must agree to be placed on
probation. If the trial court can impose probation without the defen-
dant’s consent, it would seem to have the unilateral ability to exceed the
caps on fines expressed in the Michigan Penal Code, which appears to
me to defeat the purpose of establishing a cap in the first place.
862 505 MICHIGAN REPORTS
and it is the obligation of appellate courts, including this Court, absent
some legal defect, to abide by that sentence.
The Court of Appeals’ dissent correctly identifies the issue involved
in the instant case—“[i]s there any circumstance under which a criminal
defendant may veto a sentence that the trial judge intends to impose
and demand a sentence more to the defendant’s liking?”—and the
dissent equally correctly answers this query—No. People v Bensch, 328
Mich App 1, 14 (2019) (TUKEL, J., dissenting). Moreover, the dissent
correctly understands everything else that matters about this case—(1)
that it is of no consequence, as the Court of Appeals majority seemed to
think, that the prosecutor allegedly failed to “identif[y] any difficulties”
with defendant’s assertion of authority to determine his own sentence
since, as the dissent avers, “[t]he correct resolution [of this case] turns
on legislative intent” as expressed in the language of MCL 771.1 and not
on “policy determinations,” id. at 16; (2) that the availability of proba-
tion as a sentencing option “rests in the sound discretion of the trial
court,” id. at 17 (quotation marks and citation omitted); (3) that there is
no language in our probation statute providing that a defendant must
consent to, or may veto, a court’s decision; (4) that probation being
understood as a “matter of grace” does not confer discretion upon the
defendant but upon the trial court either to grant or to revoke probation;
and (5) that (at least until today) there has not been the slightest
indication in any case of this Court that the probationary decisions of
the trial court are either “dependent on a defendant’s approval” or
“subject to [his] veto,” id. at 23.
Concerning Justice CLEMENT’s concurring statement, first, I respect-
fully disagree that a defendant “must consent to a sentence of probation”
because such a sentence is “a matter of grace” under MCL 771.4. Indeed,
under the concurrence’s own definition, “matter of grace” is defined as
“[a] situation in which a decision-maker uses a high degree of discretion
in deciding whether to grant some form of relief.” Black’s Law Diction-
ary (11th ed) (emphasis added). Thus, it is obviously the court, and not
the defendant, who possesses discretion in deciding whether to allow
probation. And equally obviously, a probationary sentence in lieu of
incarceration is most commonly understood as constituting “relief” in
the context of MCL 771.4. Second, I respectfully disagree that the
“structure of the probation system suggests that a defendant must agree
to be placed on probation” on the grounds that a court can deviate from
the restrictions the Legislature has placed on its sentencing power
without “any real limit at all.” That is simply not so. Rather, a trial court
may only render a sentence that imposes “lawful conditions of probation
as the circumstances of the case require or warrant or as in its judgment
are proper,” MCL 771.3(3). Indeed, even if an unlawful condition was
imposed, the remedy would be to remove the condition, not to allow the
defendant to choose whether he wished to continue with a sentence of
probation or not.
I would reverse the Court of Appeals and instead adopt the analysis
and conclusion of the dissenting judge in the Court of Appeals.
ZAHRA, J., joins the statement of MARKMAN, J.
 ORDERS IN CASES 863
In re E PADELSKY, MINOR, No. 160309; Court of Appeals No. 347293.
In re SL RUSSELL, MINOR, No. 160352; Court of Appeals No. 347340.

Leave to Appeal Denied November 19, 2019:

WHITE V DETROIT EAST COMMUNITY MENTAL HEALTH, No. 160201; Court

of Appeals No. 348605.

Summary Disposition November 20, 2019:

LOGAN V CHARTER TOWNSHIP OF WEST BLOOMFIELD, No. 157493; Court of

Appeals No. 333452. By order of October 2, 2018, the application for
leave to appeal the January 11, 2018 judgment of the Court of Appeals
was held in abeyance pending the decisions in Michigan Ass’n of Home
Bldrs v Troy (Docket No. 156737) and Genesee Co Drain Comm’r Jeffrey
Wright v Genesee Co (Docket No. 156579). On order of the Court, the
cases having been decided on July 11, 2019, 504 Mich 204 (2019) and on
July 18, 2019, 504 Mich 410 (2019), the application is again considered
and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal,
we vacate the judgment of the Court of Appeals and we remand this case
to the Court of Appeals for reconsideration in light of these decisions. We
do not retain jurisdiction.
PEOPLE V GEORGE MULLINS, No. 158358; Court of Appeals No. 341506.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
vacate the June 14, 2017 opinion of the Wayne Circuit Court denying the
defendant’s motion for relief from judgment, and we remand this case to
the Wayne Circuit Court for reconsideration of the defendant’s motion
under MCR 6.504(B). The record does not support the trial court’s
conclusion that five witnesses presented testimony identifying the
defendant as the shooter. On remand, the trial court shall determine
whether the new evidence is credible and whether the impact of the new
evidence, in conjunction with the evidence that would be presented on
retrial, would make a different result probable on retrial. People v
Johnson, 502 Mich 541, 566-567 (2018).
In re CONTEMPT OF NICHOLAS SOMBERG, No. 158782; Court of Appeals
No. 344041. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to
appeal, we remand this case to the Court of Appeals for consideration as
on leave granted.
PEOPLE V LAVELLE SEARCY, No. 159387; Court of Appeals No. 346866.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
remand this case to the Court of Appeals for consideration as on leave
granted. On remand, that court shall address whether a prosecuting
attorney’s office may unilaterally block an individual seeking placement
in a mental health court from the “preadmission screening and evaluation
assessment” required by MCL 600.1093(3), which, pursuant to subsection
(3)(c) of that statute, must include “[a] mental health assessment,
864 505 MICHIGAN REPORTS
clinical in nature, and using standardized instruments that have
acceptable reliability and validity, meeting diagnostic criteria for a
serious mental illness, serious emotional disturbance, co-occurring
disorder, or developmental disability.”
PEOPLE V VARNEY, No. 159699; Court of Appeals No. 347908. Pursuant
to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this
case to the Court of Appeals for consideration as on leave granted.
PEOPLE V BRYAN THOMPSON, No. 159751; Court of Appeals No. 348017.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
remand this case to the Court of Appeals for consideration as on leave
granted. We direct the Court of Appeals to expedite its consideration of
this case.
BELL V CITY OF SAGINAW, No. 159813; Court of Appeals No. 341858.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
remand this case to the Workers’ Compensation Board of Magistrates
for further consideration. The magistrate concluded that, although the
plaintiff had suffered a work-related injury, a determination of his
residual wage-earning capacity in 2012 and in 2014 was moot because
he had failed to make a good-faith effort to look for work within his
qualifications and training in those years. However, the magistrate
failed to address “what jobs, if any, [the plaintiff] is qualified and trained
to perform within the same salary range as his maximum earning
capacity at the time of the injury.” See Stokes v Chrysler, LLC, 481 Mich
266, 282 (2008) (emphasis added). On remand, the magistrate shall
make findings regarding this component of a prima facie case of
disability. On the basis of those findings, the magistrate shall then make
findings as to whether the plaintiff successfully bore his burden of
proving the remaining components of a prima facie case of disability,
specifically, “that his work-related injury prevents him from performing
some or all of the jobs identified as within his qualifications and training
that pay his maximum wages” and that “if the [plaintiff] is capable of
performing any of the jobs identified . . . that he cannot obtain any of
these jobs.” Id. at 283; see also id. (stating that “[t]he claimant must
make a good-faith attempt to procure post-injury employment if there
are jobs at the same salary or higher that he is qualified and trained to
perform and the claimant’s work-related injury does not preclude per-
formance”) (emphasis added).
NABRO HOLDINGS, INC V SUBWAY REAL ESTATE, LLC, No. 160388; Court of
Appeals No. 350571. Pursuant to MCR 7.305(H)(1), in lieu of granting
leave to appeal, we remand this case to the Court of Appeals for
consideration as on leave granted. We further order that the stay
entered by this Court on October 18, 2019 remains in effect until
completion of this appeal. On motion of a party or on its own motion, the
Court of Appeals may modify, set aside, or place conditions on the stay
if it appears that the appeal is not being vigorously prosecuted or if other
appropriate grounds appear. The Court of Appeals shall expedite its
consideration of this case. The motion for leave to supplement record on
appeal is denied. We do not retain jurisdiction.
 ORDERS IN CASES 865
Order Granting Oral Argument in Case Pending on Application for
Leave to Appeal Entered November 20, 2019:

2 CROOKED CREEK LLC V CASS COUNTY TREASURER, No. 159856; reported

below: 329 Mich App 22. The appellants shall file a supplemental brief
within 42 days of the date of this order addressing whether 2 Crooked
Creek LLC (“2CC”) (an owner of a property interest that was extin-
guished by tax foreclosure after being accorded notice sufficient to
satisfy minimum due process requirements) can sustain an action to
recover monetary damages pursuant to MCL 211.78l(1) by claiming that
it “did not receive any notice required under this act” due to a lack of
actual notice and, specifically, whether constructive notice is sufficient
to fall within the confines of “any notice” under MCL 211.78l(1) such
that 2CC can be charged with knowledge of the notice that was posted
to the subject property during a time when 2CC was exercising control
and dominion over it. See In re Treasurer of Wayne Co for Foreclosure
(Perfecting Church), 478 Mich 1 (2007). In addition to the brief, the
appellants shall electronically file an appendix conforming to MCR
7.312(D)(2). In the brief, citations to the record must provide the
appendix page numbers as required by MCR 7.312(B)(1). The appellee
shall file a supplemental brief within 21 days of being served with the
appellants’ brief. The appellee shall also electronically file an appendix,
or in the alternative, stipulate to the use of the appendix filed by the
appellants. A reply, if any, must be filed by the appellants within 14 days
of being served with the appellee’s brief. The parties should not submit
mere restatements of their application papers.
Michigan Association of County Treasurers is invited to file a brief
amicus curiae. Other persons or groups interested in the determination
of the issue presented in this case may move the Court for permission to
file briefs amicus curiae.

Leave to Appeal Denied November 20, 2019:

PEOPLE V WALAS, No. 156022; Court of Appeals No. 337436.

AUTO-OWNERS INSURANCE COMPANY V COMPASS HEALTHCARE PLC, No.
159038; reported below: 326 Mich App 595.
PEOPLE V SAVAGE, No. 159527; reported below: 327 Mich App 604.
PEOPLE V NEFF, No. 159594; Court of Appeals No. 347270.

Summary Disposition November 22, 2019:

PEOPLE V TOWNE, No. 157210; Court of Appeals No. 322820. On

November 6, 2019, the Court heard oral argument on the application for
leave to appeal the December 19, 2017 judgment of the Court of Appeals.
On order of the Court, the application is again considered. MCR
7.305(H)(1). In lieu of granting leave to appeal, we reverse the judgment
of the Court of Appeals and vacate the Livingston Circuit Court order
866 505 MICHIGAN REPORTS
denying the defendant’s motion to suppress. The police officers violated
the defendant’s constitutional right to be free from an unreasonable
search and seizure when they exceeded the proper scope of a knock and
talk by approaching and securing the defendant’s home without suffi-
cient reason to believe that the subject of the arrest warrant was inside
the home. US Const, Am IV; Const 1963, art 1, § 11. See People v
Frederick, 500 Mich 228 (2017); Payton v New York, 445 US 573 (1980);
Steagald v United States, 451 US 204 (1981). The evidence obtained
during the search of the defendant’s home must be suppressed because
the warrantless entry was the direct result of the Fourth Amendment
violation, and in this case the benefit of deterring future police miscon-
duct outweighs the cost of exclusion. See Wong Sun v United States, 371
US 471 (1963); Mapp v Ohio, 367 US 643 (1961). We remand this case to
the Livingston Circuit Court for further proceedings not inconsistent
with this order.
PEOPLE V PARKMALLORY, No. 159915; reported below: 328 Mich App
289. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal,
we vacate the judgment of the Court of Appeals, and we remand this
case to the Saginaw Circuit Court for an evidentiary hearing pursuant
to People v Ginther, 390 Mich 436 (1973). The record, as expanded by the
Court of Appeals, demonstrates that there is an issue of fact whether the
defendant would have been able to show, as to his 2009 felony convic-
tion, that he had “paid all fines imposed for the violation,” MCL
750.224f(1)(a), or that he “successfully completed all conditions of
probation or parole imposed for the violation,” MCL 750.224f(1)(c), due
to the May 20, 2011 bench warrant for his “failure to pay the balance of
his Court Assessments,” including probation supervision fees. It was
premature for the Court of Appeals to reverse the defendant’s convic-
tions when it is possible that the defendant was unable to demonstrate
fulfillment of MCL 750.224f(1). We do not retain jurisdiction.

Orders Granting Oral Argument in Cases Pending on Application for

Leave to Appeal Entered November 22, 2019:

PUNTURO V KERN, Nos. 158749, 158755, and 158756; Court of Appeals

Nos. 338727, 338728, and 338732. The appellants shall file supplemen-
tal briefs within 42 days of the date of this order addressing: (1) whether,
as a threshold matter, the fair reporting privilege, MCL 600.2911(3)—
which can only be invoked “in a libel action”—applies in a case in which
the appellants are not the media companies that published the allegedly
defamatory statements, but are instead the persons who furnished the
oral statements to the media; (2) whether the Court of Appeals erred in
holding that the appellants’ allegedly defamatory statements to the
media regarding the pending litigation were not protected under the fair
reporting privilege; (3) whether Bedford v Witte, 318 Mich App 60 (2016),
was wrongly decided; and (4) whether the standards for application of
the statutory fair reporting privilege are different for statements made
by an attorney or by a layperson-litigant. In addition to the brief,
the appellants shall electronically file appendices conforming to
 ORDERS IN CASES 867
MCR 7.312(D)(2). In the brief, citations to the record must provide the
appendix page numbers as required by MCR 7.312(B)(1). The appellees
shall file a supplemental brief within 21 days of being served with the
appellants’ briefs. The appellees shall also electronically file an appen-
dix, or in the alternative, stipulate to the use of the appendices filed by
the appellants. Replies, if any, must be filed by the appellants within 14
days of being served with the appellees’ brief. The parties should not
submit mere restatements of their application papers.
The time allowed for oral argument shall be 30 minutes: 15 minutes
for appellants, to be divided at their discretion, and 15 minutes for
appellees. MCR 7.314(B)(1).
Persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae. Motions for permission to file briefs amicus curiae and
briefs amicus curiae regarding these cases should be filed in Punturo v
Kern, Docket No. 158749, only and served on the parties in both cases.
CITY OF DEARBORN V BANK OF AMERICA, No. 159691; Court of Appeals No.
339704. The appellant shall file a supplemental brief within 42 days of
the date of this order addressing: (1) whether the federal bankruptcy
court’s October 5, 2011 order extinguished the appellant’s interest in
Parcel C; (2) whether Bank of America’s filing of a discharge of the
mortgage in 2015 impacted any interest the appellant had in Parcel C at
that time; and (3) whether the equitable arguments raised by the
appellant require the reversal of the Court of Appeals opinion. In
addition to the brief, the appellant shall electronically file an appendix
conforming to MCR 7.312(D)(2). In the brief, citations to the record must
provide the appendix page numbers as required by MCR 7.312(B)(1).
Appellee City of Dearborn shall file a supplemental brief within 21 days
of being served with the appellant’s brief. The appellee shall also
electronically file an appendix, or in the alternative, stipulate to the use
of the appendix filed by the appellant. A reply, if any, must be filed by the
appellant within 14 days of being served with the appellee’s brief. The
parties should not submit mere restatements of their application
papers.

Summary Disposition November 26, 2019:

PEOPLE V BOAK, No. 156929; Court of Appeals No. 340201. By order of

July 27, 2018, the application for leave to appeal the November 9, 2017
order of the Court of Appeals was held in abeyance pending the decision
in People v Dixon-Bey (Docket No. 156746). On order of the Court, leave
to appeal having been denied in Dixon-Bey on July 29, 2019, 504 Mich
939 (2019), the application is again considered and, pursuant to MCR
7.305(H)(1), in lieu of granting leave to appeal, we remand this case to
the Court of Appeals for consideration as on leave granted.
PEOPLE V WILLIE BROOKS, No. 157516; Court of Appeals No. 333279.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
vacate Part V.A. of the Court of Appeals judgment addressing offense
868 505 MICHIGAN REPORTS
variable (OV) 11, and we remand this case to the Court of Appeals to
determine whether People v Beck, 504 Mich 605 (2019), is applicable to
the defendant’s challenge to OV 11 and, if so, to reconsider that issue in
light of Beck. In all other respects, leave to appeal is denied, because we
are not persuaded that the remaining questions presented should be
reviewed by this Court.
PEOPLE V FRANK TYSON, No. 158225; Court of Appeals No. 338299.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
vacate the Court of Appeals judgment declining to consider the defen-
dant’s challenge to the proportionality of his departure sentence. Under
People v Steanhouse, 500 Mich 453, 476 (2017), that court must review
the departure sentence for an abuse of discretion, i.e., engage in a
reasonableness review for an abuse of discretion informed by the
“principle of proportionality.” We remand this case to the Court of
Appeals for plenary review of the defendant’s claim that his sentence
was not reasonable and proportionate. We do not retain jurisdiction.
PEOPLE V REYNOLDS, No. 159047; Court of Appeals No. 345813. Pursu-
ant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand
this case to the Court of Appeals for consideration as on leave granted.
VIVIANO, J., did not participate due to a familial relationship with the
presiding circuit court judge in this case.

Leave to Appeal Denied November 26, 2019:

PEOPLE V MCFOLLEY, No. 156355; Court of Appeals No. 338080.

PEOPLE V MATTHEWS, No. 156529; Court of Appeals No. 331177.
PEOPLE V GASTON, No. 156892; Court of Appeals No. 334380.
PEOPLE V HULBERT, No. 157248; Court of Appeals No. 341137.
PEOPLE V JOSEPH, No. 157579; Court of Appeals No. 342148.
PEOPLE V YASMEEN TAYLOR, No. 157768; Court of Appeals No. 329849.
PEOPLE V FREDERICK BRADFORD, No. 157981; Court of Appeals No.
342840.
PEOPLE V DOWNS, No. 158223; Court of Appeals No. 343652.
PEOPLE V MCCANTS, No. 158382; Court of Appeals No. 331248.
PEOPLE V ARNETT JACKSON, No. 158803; Court of Appeals No. 345357.
PEOPLE V TROY JOHNSON, No. 158824; Court of Appeals No. 337999.
PEOPLE V HENDERSHOTT, No. 158876; Court of Appeals No. 343427.
PEOPLE V CARL PERRY, No. 158923; Court of Appeals No. 345497.
PEOPLE V MCCREE, No. 158931; Court of Appeals No. 339802.
PEOPLE V BOWSER, No. 158949; Court of Appeals No. 344224.
 ORDERS IN CASES 869
HAMILTON V NORTHERN IMAGING ASSOCIATES, PC, No. 159333; Court of
Appeals No. 345191.
PEOPLE V BARHAM, No. 159353; Court of Appeals No. 340196.
PEOPLE V DURDEN, No. 159431; Court of Appeals No. 341949.
PEOPLE V EZELL, No. 159441; Court of Appeals No. 341947.
In re PROCTOR, Nos. 159498 and 159499; Court of Appeals Nos.
342029 and 342676.
MEADOWLARK BUILDERS, LLC V EVANS, No. 159538; Court of Appeals No.
341492.
PEOPLE V DENAZ RICHARDSON, No. 159546; Court of Appeals No. 347714.
ESQUIRE DEVELOPMENT AND CONSTRUCTION, INC V CITY OF MASON, No.
159549; Court of Appeals No. 343173.
PELC V NORTH STAR RANCH, INC, No. 159590; Court of Appeals No.
339635.
PEOPLE V LES JONES, No. 159620; Court of Appeals No. 340417.
PEOPLE V POTTS, No. 159622; Court of Appeals No. 347500.
PEOPLE V WILLIAM HALL, No. 159644; Court of Appeals No. 346934.
AULD V MCLAREN REGIONAL MEDICAL CENTER, No. 159646; Court of
Appeals No. 341335.
BOU-MELHEM V TRUMBULL-COMMONWEALTH LLC, No. 159651; Court of
Appeals No. 340581.
PEOPLE V JONES-BUTLER, No. 159672; Court of Appeals No. 347715.
PEOPLE V CHEATHAM, No. 159693; Court of Appeals No. 348007.
PEOPLE V CLARK, No. 159695; Court of Appeals No. 342635.
PEOPLE V FORSYTH, No. 159706; Court of Appeals No. 346991.
PEOPLE V MCGRUDER, No. 159712; Court of Appeals No. 347566.
PEOPLE V BAKER, No. 159722; Court of Appeals No. 342109.
PEOPLE V DIXON, No. 159734; Court of Appeals No. 348169.
LIVONIA GATEWAY INVESTMENTS, LLC V BROOK PROPERTY HOLDING, LLC,
No. 159749; Court of Appeals No. 340439.
PEOPLE V WILLIAM WARREN, No. 159765; Court of Appeals No. 335934.
PEOPLE V JOHNATHON MARTIN, No. 159775; Court of Appeals No.
342253.
PEOPLE V BURTON, No. 159799; Court of Appeals No. 348052.
PEOPLE V LORENZO BROWN, No. 159809; Court of Appeals No. 344796.
870 505 MICHIGAN REPORTS
PEOPLE V MCFARLAND, No. 159821; Court of Appeals No. 343143.
PEOPLE V SCHOENING, No. 159827; Court of Appeals No. 348062.
PEOPLE V RIVERA, No. 159830; Court of Appeals No. 343429.
PODEWELL V PODEWELL, No. 159837; Court of Appeals No. 341580.
PEOPLE V DONTAYE JONES, No. 159844; Court of Appeals No. 346604.
SHAREEF V DEUTSCHE BANK NATIONAL TRUST COMPANY, No. 159861; Court
of Appeals No. 341015.
PEOPLE V ERROL SMITH, No. 156869; Court of Appeals No. 341977.
PEOPLE V MONTOYA-SANCEN, No. 159872; Court of Appeals No. 348401.
PEOPLE V WILLIAM SCHOLTES, No. 159881; Court of Appeals No. 341614.
PEOPLE V GOMEZ, No. 159891; Court of Appeals No. 341422.
PEOPLE V FOSTER, No. 159893; Court of Appeals No. 346717.
PEOPLE V EDDIE BROWN, No. 159897; reported below: 326 Mich App
185.
PEOPLE V SMALLEY, No. 159910; Court of Appeals No. 347860.
PEOPLE V RODGERS, No. 159916; Court of Appeals No. 342456.
PEOPLE V REGINALD WILLIAMS, No. 159920; Court of Appeals No.
348654.
PEOPLE V JAVON CARTER, No. 159923; Court of Appeals No. 348486.
PEOPLE V ROBERT KENNEDY, No. 159932; Court of Appeals No. 347095.
PEOPLE V ERNEST GORDON, No. 159934; Court of Appeals No. 346695.
PEOPLE V FIELDS, No. 159949; Court of Appeals No. 348528.
PEOPLE V KIERELLE BURNS, No. 159952; Court of Appeals No. 341863.
In re JUAREZ, No. 159968; Court of Appeals No. 347916.
PEOPLE V LORIMER JONES, No. 159983; Court of Appeals No. 348523.
PEOPLE V JASPER, No. 159990; Court of Appeals No. 348695.
PEOPLE V HARDY, No. 160003; Court of Appeals No. 347303.
PEOPLE V GURLEY, No. 160004; Court of Appeals No. 348848.
PEOPLE V DEMETRIS YOUNG, No. 160011; Court of Appeals No. 342632.
PEOPLE V LAWSON, No. 160013; Court of Appeals No. 342213.
PEOPLE V WARNER, No. 160014; Court of Appeals No. 341724.
PEOPLE V WILLIE GRAHAM, No. 160015; Court of Appeals No. 348397.
 ORDERS IN CASES 871
PEOPLE V TETT, No. 160023; Court of Appeals No. 348691.
PEOPLE V BURRELL, No. 160039; Court of Appeals No. 347776.
PEOPLE V GADOMSKI, No. 160040; Court of Appeals No. 347875.
PEOPLE V CARROLL, No. 160041; Court of Appeals No. 342014.
PEOPLE V ESSEX, No. 160043; Court of Appeals No. 348797.
PEOPLE V LARRY WILLIAMS, No. 160051; Court of Appeals No. 348375.
PEOPLE V HAINES, No. 160057; Court of Appeals No. 349057.
PEOPLE V MICHAEL BROWN, No. 160065; Court of Appeals No. 344704.
PEOPLE V MARTIN-LEVIER, No. 160066; Court of Appeals No. 342095.
PEOPLE V DEANDRE KING, No. 160069; Court of Appeals No. 349269.
PEOPLE V MARQUIS MOORE, No. 160070; Court of Appeals No. 342160.
PEOPLE V RONALD EDWARDS, No. 160072; Court of Appeals No. 341974.
PEOPLE V KEVIN RICHARDS, No. 160081; Court of Appeals No. 347352.
PEOPLE V CHAD JOHNSON, No. 160086; Court of Appeals No. 348988.
PEOPLE V AMEN HOUSTON, No. 160095; Court of Appeals No. 348525.
PEOPLE V HANNIBAL CLEMONS, No. 160097; Court of Appeals No.
343531.
In re PETITION OF WAYNE COUNTY TREASURER FOR FORECLOSURE, No.
160115; Court of Appeals No. 349409.
WILLIAMS V CITY OF EASTPOINTE, No. 160138; Court of Appeals No.
344942.
PEOPLE V ROBERT THOMPSON, No. 160157; Court of Appeals No. 349719.
PEOPLE V MICHAEL THOMAS, No. 160165; Court of Appeals No. 340545.
PEOPLE V SALINAS, No. 160190; Court of Appeals No. 349644.

Reconsideration Denied November 26, 2019:

LANSING PARKVIEW, LLC V K2M GROUP, LLC, Nos. 159017 and 159018;
Court of Appeals Nos. 338284 and 339030. Leave to appeal denied at 504
Mich 901.
In re APPLICATION OF CONSUMERS ENERGY COMPANY TO INCREASE RATES, No.
159092; Court of Appeals No. 338592. Leave to appeal denied at 504
Mich 945.
In re APPLICATION OF DTE ELECTRIC COMPANY TO INCREASE RATES, No.
159096; Court of Appeals No. 338378. Leave to appeal denied at 504
Mich 945.
872 505 MICHIGAN REPORTS
DAVIS V GENERAL MOTORS CORPORATION, No. 159149; Court of Appeals
No. 345137. Leave to appeal denied at 504 Mich 945.
TAYLOR V OLYMPIA ENTERTAINMENT, INC, No. 159343; Court of Appeals
No. 346172. Leave to appeal denied at 504 Mich 947.

Summary Disposition November 27, 2019:

PEOPLE V GRANDERSON, No. 154552; Court of Appeals No. 325313. By

order of September 27, 2018, the application for leave to appeal the
September 13, 2016 judgment of the Court of Appeals was held in
abeyance pending the decision in People v Swilley (Docket No. 154684).
On order of the Court, the case having been decided on July 17, 2019,
504 Mich 350 (2019), the motion for leave to file supplemental brief is
granted. The application is again considered and, pursuant to MCR
7.305(H)(1), in lieu of granting leave to appeal, we remand this case to
the Court of Appeals for reconsideration in light of Swilley.
PEOPLE V TERRANCE THOMAS, No. 154656; Court of Appeals No. 325530.
By order of September 27, 2018, the application for leave to appeal the
September 13, 2016 judgment of the Court of Appeals was held in
abeyance pending the decision in People v Swilley (Docket No. 154684).
On order of the Court, the case having been decided on July 17, 2019,
504 Mich 350 (2019), the application is again considered and, pursuant
to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this
case to the Court of Appeals for reconsideration in light of Swilley.
PEOPLE V SCHURZ, No. 157032; Court of Appeals No. 340420. By order
of July 3, 2018, the application for leave to appeal the November 28,
2017 order of the Court of Appeals was held in abeyance pending the
decision in People v Dixon-Bey (Docket No. 156746). On order of the
Court, leave to appeal having been denied in Dixon-Bey on July 29,
2019, 504 Mich 939 (2019), the application is again considered and,
pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
remand this case to the Court of Appeals for consideration as on leave
granted.
PEOPLE V KEITH HARVEY, No. 157053; Court of Appeals No. 340700.
By order of July 27, 2018, the application for leave to appeal the
November 30, 2017 order of the Court of Appeals was held in abeyance
pending the decision in People v Dixon-Bey (Docket No. 156746). On order
of the Court, leave to appeal having been denied in Dixon-Bey on July 29,
2019, 504 Mich 939 (2019), the application is again considered and,
pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
remand this case to the Court of Appeals for reconsideration in light of
People v Dixon-Bey, 321 Mich App 490 (2017).
PEOPLE V AARON ROBINSON, No. 157134; Court of Appeals No. 335193.
By order of October 2, 2018, the application for leave to appeal the
December 28, 2017 judgment of the Court of Appeals was held in
abeyance pending the decisions in People v Beck (Docket No. 152934)
and People v Dixon-Bey (Docket No. 156746). On order of the Court, Beck
 ORDERS IN CASES 873
having been decided on July 29, 2019, 504 Mich 605 (2019), and leave to
appeal having been denied in Dixon-Bey on July 29, 2019, 504 Mich 939
(2019), the application is again considered and, pursuant to MCR
7.305(H)(1), in lieu of granting leave to appeal, we vacate the judgment
of the Court of Appeals and we remand this case to the Court of Appeals
for reconsideration in light of Beck. In addition, the Court of Appeals
shall analyze: (1) whether defendant’s argument pertaining to the
consecutive nature of his sentences is outside the scope of the remand
for “resentencing”; and (2) if not, whether the trial court articulated an
appropriate basis for imposing consecutive sentences. See People v
Norfleet, 317 Mich App 649 (2016). In all other respects, leave to appeal
is denied, because we are not persuaded that the remaining questions
presented should be reviewed by this Court.
PEOPLE V JERMAINE JACKSON, No. 157164; Court of Appeals No. 333722.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
reverse the Court of Appeals judgment holding that the trial court failed
to adequately support its departure sentence and remanding this case to
the trial court for resentencing. The Court of Appeals clearly erred in
concluding that the trial court’s justifications for the departure were
entirely encapsulated by the offense variables. Taken as a whole, the
trial court’s justifications were addressed not only to the seriousness of
the offense, but also to the danger posed by this particular offender, who
intentionally and needlessly created an exceptionally dangerous situa-
tion and whose criminal behavior was escalating. The Court of Appeals
failed to note and account for the trial court’s express statement that the
departure was a fair and proportionate sentence for the protection of
society in these circumstances. The trial court did not abuse its
discretion by violating the principle of proportionality when it imposed
a modest departure for the reasons provided.
PEOPLE V ELLEN, No. 157370; Court of Appeals No. 325627. Pursuant
to MCR 7.305(H)(1), in lieu of granting leave to appeal, we reverse the
Court of Appeals judgment finding that the trial court failed to explain
why the extent of the guidelines departure was warranted and remand-
ing this case to the trial court for resentencing. The trial court ad-
equately described the circumstances surrounding the offense as being
at the most serious end of the spectrum of manslaughter cases and the
defendant’s efforts to silence witnesses, thereby warranting the most
severe sentence permitted. The principle of proportionality was satisfied
and the trial court did not abuse its discretion.
PEOPLE V JOHNATHAN BURKS, No. 157838; Court of Appeals No. 335955.
By order of October 30, 2018, the application for leave to appeal the
April 3, 2018 judgment of the Court of Appeals was held in abeyance pending
the decisions in People v Beck (Docket No. 152934) and People v Dixon-Bey
(Docket No. 156746). On order of the Court, Beck having been decided on
July 29, 2019, 504 Mich 605 (2019), and leave to appeal having been denied
in Dixon-Bey on July 29, 2019, 504 Mich 939 (2019), the application is
again considered. Pursuant to MCR 7.305(H)(1), in lieu of granting
leave to appeal, we vacate that part of the judgment of the Court of
Appeals addressing the defendant’s sentence for home invasion,
874 505 MICHIGAN REPORTS
and we remand this case to that court for reconsideration in light of
Beck. In all other respects, leave to appeal is denied, because we are not
persuaded that the remaining question presented should be reviewed by
this Court.
PEOPLE V JAIR HARRIS, No. 158124; Court of Appeals No. 343632.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
remand this case to the Court of Appeals for consideration as on leave
granted.
PEOPLE V ANTONIO JACKSON, No. 158654; Court of Appeals No. 344242.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
remand this case to the Court of Appeals for consideration as on leave
granted. See People v Beck, 504 Mich 605 (2019).
PEOPLE V JOSHUA DAVIS, No. 159465; Court of Appeals No. 347326.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
remand this case to the Court of Appeals for consideration as on leave
granted.
PEOPLE V BUNCH, No. 159820; Court of Appeals No. 348280. Pursuant
to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this
case to the Gladwin Circuit Court. The trial court recited the general
purposes of sentencing presented in People v Cervantes, 448 Mich 620
(1995), without providing an explanation for how the defendant’s sen-
tence served those purposes. On remand, the trial court shall either issue
an order articulating why the defendant’s sentence is warranted, includ-
ing the extent of the departure, or resentence the defendant. People v
Lockridge, 498 Mich 358 (2015); People v Smith, 482 Mich 292 (2008).

Leave to Appeal Granted November 27, 2019:

TURNER V FARMERS INSURANCE EXCHANGE, No. 159660; reported below:

327 Mich App 481. The parties shall address whether a self-insured
vehicle owner is subject to the priority provision in the former MCL
500.3114(4)(a) as “[t]he insurer of the owner or registrant of the vehicle
occupied” if the self-insured entity’s vehicle involved in the accident was
not subject to the security provisions of the no-fault act because it was
registered in another state, did not need to be registered in this state,
and was not operated in this state for more than 30 days during the
applicable year. The time allowed for oral argument shall be 20 minutes
for each side. MCR 7.314(B)(1).
Persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae.

Orders Granting Oral Argument in Cases Pending on Application for

Leave to Appeal Entered November 27, 2019:

HUNT V DRIELICK, HUBER V DRIELICK, and LUCZAK V DRIELICK, Nos.

157476, 157477, and 157478; reported below: 322 Mich App 318. On
 ORDERS IN CASES 875
order of the Court, the application for leave to appeal the December 14,
2017 judgment of the Court of Appeals and the application for leave to
appeal as cross-appellants are considered. The application for leave to
appeal is denied, because we are not persuaded that the question
presented should be reviewed by this Court. We direct the Clerk to
schedule oral argument on the application for leave to appeal as
cross-appellants. MCR 7.305(H)(1).
The parties shall file supplemental briefs within 42 days of the date
of this order addressing the period of time for which garnishee-
defendant Empire Fire and Marine Insurance Company, as the Drielick
defendants’ insurer, is liable for the payment of judgment interest
pursuant to MCL 600.6013 or any postjudgment interest, and the proper
method of calculation, see Matich v Modern Research Corp, 430 Mich 1
(1988).
In addition, the cross-appellants shall electronically file an appendix
conforming to MCR 7.312(D)(2). In the brief, citations to the record must
provide the appendix page numbers as required by MCR 7.312(B)(1).
Each party may file a response brief within 14 days of being served with
the other party’s initial supplemental brief. Additionally, at this time,
the cross-appellees shall electronically file an appendix, or in the
alternative, stipulate to the use of the appendix filed by the cross-
appellants. The parties should not submit mere restatements of their
application papers.
Persons or groups interested in the determination of the issue
presented in this case may move the Court for permission to file briefs
amicus curiae.
CAVANAGH, J., not participating due to her prior relationship with
Garan Lucow Miller, P.C.
LAKESHORE GROUP V DEPARTMENT OF ENVIRONMENTAL QUALITY, Nos.
159524 and 159525; Court of Appeals Nos. 340623 and 340647. The
appellants shall file a supplemental brief within 42 days of the date of
this order addressing whether appellants Jane Underwood and Charles
Zolper, as “owner[s] of [] property immediately adjacent to the proposed
use” at the time of their intervention in these contested cases, satisfy the
statutory standard for standing under MCL 324.35305(1), notwith-
standing the developer’s subsequent sales of land located between each
appellant’s respective property and the property being developed. In
addition to the brief, the appellants shall electronically file an appendix
conforming to MCR 7.312(D)(2). In the brief, citations to the record must
provide the appendix page numbers as required by MCR 7.312(B)(1).
The appellees shall file supplemental briefs within 21 days of being
served with the appellants’ brief. The appellees shall also electronically
file an appendix, or in the alternative, stipulate to the use of the
appendix filed by the appellants. Replies, if any, must be filed by the
appellants within 14 days of being served with the appellees’ briefs. The
parties should not submit mere restatements of their application
papers.
876 505 MICHIGAN REPORTS
Persons or groups interested in the determination of the issue
presented in this case may move the Court for permission to file briefs
amicus curiae.
REAUME V TOWNSHP OF SPRING LAKE, No. 159874; reported below:
328 Mich App 321. The appellant shall file a supplemental brief within
42 days of the date of this order addressing: (1) whether the Court of
Appeals improperly relied on the character of the relationship that
defines the term “family” in the zoning ordinance in order to conclude
that the permitted use of a “Dwelling, Single Family” in the R-1 district
does not include short-term rentals; and (2) whether, aside from the
definition of “family,” the appellant met her burden of proof to establish
that her actual use of 18190 Lovell Road as a short-term rental complied
with the permitted use of the property as a “Dwelling, Single Family”
before the township adopted Ordinance 255 and Ordinance 257. In
addition to the brief, the appellant shall electronically file an appendix
conforming to MCR 7.312(D)(2). In the brief, citations to the record must
provide the appendix page numbers as required by MCR 7.312(B)(1).
The appellee shall file a supplemental brief within 21 days of being
served with the appellant’s brief. The appellee shall also electronically
file an appendix, or in the alternative, stipulate to the use of the
appendix filed by the appellant. A reply, if any, must be filed by the
appellant within 14 days of being served with the appellee’s brief. The
parties should not submit mere restatements of their application
papers.
The Michigan Townships Association and the Michigan Municipal
League, and the Real Property Law and Government Law Sections of
the State Bar of Michigan are invited to file briefs amicus curiae. Other
persons or groups interested in the determination of the issues pre-
sented in this case may move the Court for permission to file briefs
amicus curiae.

Leave to Appeal Denied November 27, 2019:

PEOPLE V CLARENCE MCMILLEN, No. 156647; Court of Appeals No.

332089.
In re IM LONG, MINOR, No. 158854; reported below: 326 Mich App 455.
On October 3, 2019, the Court heard oral argument on the application
for leave to appeal the November 20, 2018 judgment of the Court of
Appeals. On order of the Court, the application is again considered, and
it is denied, because we are not persuaded that the questions presented
should be reviewed by this Court.
PEOPLE V BYERS, No. 159512; Court of Appeals No. 343806.
PIKE V NORTHERN MICHIGAN UNIVERSITY, No. 159719; reported below:
327 Mich App 683.
MARKMAN, J. (concurring). The state of Michigan in its amicus brief is
correct, in my judgment, that the Court of Appeals misstated that MCL
600.6431 applies only to claims against the state and not also to claims
 ORDERS IN CASES 877
against its subdivisions. See Bauserman v Unemployment Ins Agency,
503 Mich 169, 179 (2019); Fairley v Dep’t of Corrections, 497 Mich 290,
298 (2015).
In re OSENBAUGH, MINORS, No. 160377; Court of Appeals No. 348331.

Motion to Waive Fees Denied November 27, 2019:

GREAT LAKES CAPITAL FUND FOR HOUSING LIMITED PARTNERSHIP XII V

ERWIN COMPANIES, LLC, No. 160569; Court of Appeals No. 349916. On
order of the Chief Justice, the motion to waive fees is denied. The
corporate appellant is not eligible for a waiver of fees. MCR 2.002(A)(1).
The filing fee shall be paid within 21 days of the date of this order or else
the application for leave to appeal will be administratively dismissed.

Joint Motion to Vacate the Court of Appeals Opinion Denied December 4,

2019:

PROGRESS MICHIGAN V ATTORNEY GENERAL, Nos. 158150 and 158151;

Court of Appeals Nos. 340921 and 340956. By order of September 25,
2019, the parties were directed to file supplemental briefs addressing
their Joint Motion to Vacate the Court of Appeals Opinion and Remand
to the Court of Claims for Entry of a Stipulated Order of Dismissal with
Prejudice. On order of the Court, the briefs having been received, the
joint motion is again considered, and it is denied. We direct the Clerk to
schedule this case for oral argument. At oral argument, the parties shall
address the issues set forth in this Court’s March 20, 2019 order
granting leave to appeal.

Summary Disposition December 6, 2019:

PEOPLE V NACCARATO, No. 158006; Court of Appeals No. 334824.

Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
reverse the Court of Appeals judgment finding that the trial court failed
to explain why the extent of the guidelines departure was warranted
and remanding this case to the trial court for resentencing. The trial
court adequately explained why, in light of mitigating circumstances
surrounding the offense and the offender, a sentence of probation would
be more proportionate than a sentence of incarceration. The principle of
proportionality was satisfied and the trial court did not abuse its
discretion.
MARKMAN, J. (dissenting). I respectfully dissent from this Court’s
order reversing the Court of Appeals judgment and reinstating defen-
dant’s sentence of three years of probation. Defendant here pleaded no
contest to four counts of burning a dwellinghouse, burning insured
property, and burning personal property valued at more than $1,000 but
less than $20,000. The trial court departed downwardly from the
applicable guidelines range (51 to 85 months) and sentenced defendant
878 505 MICHIGAN REPORTS
to three years of probation. On two previous occasions, the Court of
Appeals vacated defendant’s sentence and remanded to the trial court
for resentencing, and each time the trial court reimposed the same
sentence (three years of probation). The Court of Appeals has once again
vacated defendant’s sentence and remanded for resentencing.
The trial court’s reasons for the departure were: defendant’s age (41
at the time of the offense); his college education; his engineering career;
his volunteer work in the community, his lack of prior criminal history,
his good behavior subsequent to the fire; his compliance with conditions
of probation; his satisfaction of his restitution obligation; character
letters submitted by family, friends, and former tenants; his efforts to
evacuate the building before setting it ablaze; and the fact that he
himself suffered third-degree burns that hospitalized him for six weeks.
While the reasons cited by the trial court, in my judgment, justify
some departure, the question before this Court is whether they justify
the specific departure imposed by the trial court. The guidelines called
for a prison sentence of 51 to 85 months, and the trial court imposed
three years of probation. Defendant started an apartment building that
he owned on fire so that he could collect the insurance money. This was
a serious crime and, although defendant attempted to ensure that the
building was empty before he started the fire, he nevertheless placed a
number of people in danger of harm and a firefighter was, in fact,
injured. He also lied to the firefighters arriving on the scene and sought
to blame the fire on a “black man” he had supposedly seen fleeing from
the building. The trial court here did not adequately explain why these
facts alone did not justify at least some period of incarceration. Because
I do not believe the Court of Appeals abused its discretion in vacating
defendant’s sentence and remanding for resentencing, I would deny
leave to appeal.
CLEMENT, J., joins the statement of MARKMAN, J.

Leave to Appeal Denied December 6, 2019:

MCCALLUM V MID-MICHIGAN PHYSICIANS, PC, No. 159400; Court of

Appeals No. 345695.
MARKMAN, J. (dissenting). I respectfully dissent from this Court’s
order denying leave to appeal. The appeal in this medical malpractice
case centers on whether plaintiff William McCallum timely filed his
action. In September 2010, plaintiff visited an emergency room and
underwent a CT scan that revealed a possible metastatic mass in his
liver. Plaintiff visited defendant Mid-Michigan Physicians PC for
follow-up care. In late 2010, plaintiff underwent an ultrasound, which
was read as evidencing no liver lesion but signs of gallbladder disease.
In February 2016, plaintiff underwent an MRI, which revealed a
neuroendocrine carcinoma in his liver, and instituted the instant action,
alleging error in the reading of the ultrasound and in the follow-up care
provided by defendant.
In the course of discovery, defendant William Jordan, a physicians’
assistant at Mid-Michigan Physicians, testified that, upon receiving the
 ORDERS IN CASES 879
ultrasound results in 2010, he: (a) called plaintiff, (b) referred plaintiff
for gallbladder surgery, and (c) instructed plaintiff there was still cause
to be concerned about the liver mass on the CT scan and that the
gallbladder surgeon could visually assess his liver during surgery. A
notation in plaintiff’s medical chart corroborates Jordan’s testimony
that he called plaintiff and referred him to a gallbladder surgeon, but
plaintiff never scheduled such an appointment. And in his deposition in
2017, plaintiff professed a lack of memory concerning: (a) his follow-up
appointment at Mid-Michigan Physicians, (b) having undergone an
ultrasound procedure, (c) Jordan having called him following the ultra-
sound procedure, or (d) Jordan having referring him to the gallbladder
surgeon. Defendants moved for summary disposition, contending that
plaintiff’s claim was untimely because he should have discovered the
claim in late 2010.
“In general, a plaintiff in a medical malpractice case must bring his
claim within two years of when the claim accrued, or within six months
of when he discovered or should have discovered his claim.” Solowy v
Oakwood Hosp Corp, 454 Mich 214, 219 (1997), citing MCL 600.5805
and 600.5838. Because plaintiff instituted this action more than two
years after the ultrasound, he must rely upon the six-month discovery
rule to satisfy the statute of limitations. The six-month discovery rule
states in pertinent part:
[A]n action involving a claim based on malpractice may be
commenced at any time within the applicable period prescribed in
sections 5805 or 5851 to 5856, or within 6 months after the
plaintiff discovers or should have discovered the existence of the
claim, whichever is later. The plaintiff has the burden of proving
that the plaintiff neither discovered nor should have discovered
the existence of the claim at least 6 months before the expiration
of the period otherwise applicable to the claim. [MCL 600.5838(2)
(emphasis added).]
The “six-month discovery rule period begins to run in medical malprac-
tice cases when the plaintiff, on the basis of objective facts, is aware of
a possible cause of action.” Solowy, 454 Mich at 232. “This occurs when
the plaintiff is aware of an injury and a possible causal link between the
injury and an act or omission of the physician.” Id.
Defendants argue that plaintiff has not sustained his burden of
advancing evidence supporting the conclusion that the six-month dis-
covery rule did not commence in 2010 after the conflicting results from
the CT and ultrasound procedures. The trial court rejected this argu-
ment, relying upon plaintiff’s deposition testimony to conclude there
was a dispute of fact as to whether Jordan called plaintiff following the
ultrasound. For two reasons, I would remand to the Court of Appeals as
on leave granted to consider the reasonableness of that conclusion.
First, in order to dispute Jordan’s testimony and the partially corrobo-
rating medical chart notation, plaintiff relies exclusively upon his
testimony that he lacks memory regarding the events surrounding his
healthcare in late 2010. But a lack of memory, however genuine, does
not constitute affirmative evidence of anything. This is particularly true
880 505 MICHIGAN REPORTS
where plaintiff bore the burden of establishing that he had not discov-
ered his claim in 2010. Second, even assuming that plaintiff did
affirmatively testify that Jordan did not call him (or even that he did not
remember the call but that he would have followed Jordan’s advice and
scheduled an appointment with the gallbladder surgeon had he received
such a call), the lack of follow-up after the ultrasound should have
placed plaintiff reasonably on notice of a possible medical malpractice
claim.
This, in my judgment, constitutes the Court’s third recent denial of
leave in a case in which serious questions surround the proper applica-
tion of the six-month discovery rule. See also Jendrusina v Mishra, 501
Mich 958 (2018); Hemphill v Suleiman, 502 Mich 910 (2018). Rather
than denying leave to appeal, I would remand to the Court of Appeals as
on leave granted.
MCCALLUM V MID-MICHIGAN PHYSICIANS, PC, No. 159982; Court of
Appeals No. 346858.

Reconsideration Denied December 6, 2019:

In re HM MCCLINTON, MINOR, No. 159987; Court of Appeals No.

346848. Leave to appeal denied at 504 Mich 977.

Summary Disposition December 11, 2019:

PEOPLE V GARRISON, No. 157417; Court of Appeals No. 334063. By

order of July 29, 2019, the prosecutor was directed to answer Issue VI of
the application for leave to appeal the January 30, 2018 judgment of the
Court of Appeals. On order of the Court, the answer having been
received, the application for leave to appeal is again considered. Pursu-
ant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand
this case to the Court of Appeals for consideration of the two issues not
addressed by that court during its initial review of this case—Issues V
and VI in the defendant’s supplemental brief, filed under AO 2004-6
(Minimum Standards for Indigent Criminal Appellate Defense Ser-
vices), Standard 4. In all other respects, leave to appeal is denied,
because we are not persuaded that the remaining questions presented
should be reviewed by this Court. The motions for peremptory reversal
and for the appointment of counsel are denied. We do not retain
jurisdiction.
EASTER V PROGRESSIVE MARATHON INSURANCE COMPANY, No. 157692;
Court of Appeals No. 335815. By order of September 12, 2018, the
application for leave to appeal the March 20, 2018 judgment of the Court
of Appeals was held in abeyance pending the decision in Dye v Esurance
Prop & Cas Ins Co (Docket No. 155784). On order of the Court, the case
having been decided on July 11, 2019, 504 Mich 167 (2019), the
application is again considered. Pursuant to MCR 7.305(H)(1), in lieu of
granting leave to appeal, we reverse Part I.A. of the Court of Appeals
judgment for the reasons stated in Dye. We remand this case to the
 ORDERS IN CASES 881
Eaton Circuit Court for further proceedings not inconsistent with this
order. In all other respects, leave to appeal is denied, because we are not
persuaded that the remaining questions presented should be reviewed
by this Court.
CAVANAGH, J., did not participate due to her prior relationship with
Garan Lucow Miller, P.C.
PEOPLE V RAINBOLT, No. 159313; Court of Appeals No. 345529. Pursu-
ant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand
this case to the Muskegon Circuit Court for reconsideration of the
defendant’s challenge to Barbara Cross’s testimony, first addressed in
the circuit court’s March 15, 2018 opinion denying relief from judgment,
in light of People v Thorpe, 504 Mich 230 (2019). In all other respects,
leave to appeal is denied, because we are not persuaded that the
remaining questions presented should be reviewed by this Court.
TYSON V DAWKINS, No. 159815; Court of Appeals No. 346595. Pursuant
to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this
case to the Court of Appeals for consideration as on leave granted.

Order Granting Oral Argument in Case Pending on Application for

Leave to Appeal Entered December 11, 2019:

PEOPLE V ROBIN MANNING, No. 160034; Court of Appeals No. 345268.

The appellant shall file a supplemental brief within 42 days of the date
of this order addressing: (1) whether the defendant’s successive motion
for relief from judgment is “based on a retroactive change in law,” MCR
6.502(G)(2), where the law relied upon does not automatically entitle
him to relief; and (2) if so, whether the United States Supreme Court’s
decisions in Miller v Alabama, 567 US 460 (2012), and Montgomery v
Louisiana, 136 S Ct 718 (2016), should be applied to 18-year-old
defendants convicted of murder and sentenced to mandatory life with-
out parole, under the Eighth Amendment to the United States Consti-
tution or Const 1963, art 1, § 16, or both. In addition to the brief, the
appellant shall electronically file an appendix conforming to MCR
7.312(D)(2). In the brief, citations to the record must provide the
appendix page numbers as required by MCR 7.312(B)(1). The appellee
shall file a supplemental brief within 21 days of being served with the
appellant’s brief. The appellee shall also electronically file an appendix,
or in the alternative, stipulate to the use of the appendix filed by the
appellant. A reply, if any, must be filed by the appellant within 14 days
of being served with the appellee’s brief. The parties should not submit
mere restatements of their application papers.
The Criminal Defense Attorneys of Michigan and the Prosecuting
Attorneys Association of Michigan are invited to file briefs amicus
curiae. Other persons or groups interested in the determination of the
issues presented in this case may move the Court for permission to file
briefs amicus curiae.
882 505 MICHIGAN REPORTS
Leave to Appeal Denied December 11, 2019:

PEOPLE V LOPEZ, No. 159581; Court of Appeals No. 341089.

PEOPLE V GARDNER, No. 159640; Court of Appeals No. 338800.
PEOPLE V HAYNES, No. 159811; Court of Appeals No. 343558.
GRAY V LAKELAND SPECIALTY HOSPITAL AT BERRIEN CENTER, No. 159835;
reported below: 328 Mich App 142.
PEOPLE V LOVILY JOHNSON, No. 159895; Court of Appeals No. 348784.
PEOPLE V JERRICO TIMMONS, No. 159959; Court of Appeals No. 348327.
PEOPLE V JERRICO TIMMONS, No. 159961; Court of Appeals No. 348328.

Summary Disposition December 13, 2019:

SHEARS V BINGAMAN, No. 156789; Court of Appeals No. 329776. By

order of May 30, 2018, the application for leave to appeal the August 24,
2017 judgment of the Court of Appeals was held in abeyance pending the
decision in Genesee Co Drain Comm’r Jeffrey Wright v Genesee Co
(Docket No. 156579). On order of the Court, the case having been
decided on July 18, 2019, 504 Mich 410 (2019), the application is again
considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to
appeal, we vacate that part of the Court of Appeals’ judgment holding
that the plaintiffs’ claims of unjust enrichment would be barred by
governmental immunity. We remand this case to the Genesee Circuit
Court for its consideration, in light of Genesee Co Drain Comm’r, of any
motion plaintiffs may file seeking leave to amend the complaint to add
their claims of unjust enrichment. In all other respects, leave to appeal
is denied, because we are not persuaded that the questions presented
should be reviewed by this Court. We do not retain jurisdiction.
CLEMENT, J., did not participate due to her prior involvement as chief
legal counsel for the Governor.
KINCAID V CITY OF FLINT, Nos. 158070 and 158071; Court of Appeals
Nos. 337972 and 337976. By order of December 4, 2018, the application
for leave to appeal the June 26, 2018 judgment of the Court of Appeals
was held in abeyance pending the decision in Genesee Co Drain Comm’r
Jeffrey Wright v Genesee Co (Docket No. 156579). On order of the Court,
the case having been decided on July 18, 2019, 504 Mich 410 (2019), the
application is again considered. Pursuant to MCR 7.305(H)(1), in lieu of
granting leave to appeal, we vacate the judgment of the Court of Appeals
and we remand this case to that court for its consideration of plaintiffs’
unjust enrichment claims in light of Genesee Co Drain Comm’r Jeffrey
Wright, and, if necessary, the issues raised by the defendant but not
addressed by that court during its initial review of this case. We do not
retain jurisdiction.
CLEMENT, J., did not participate due to her prior involvement as chief
legal counsel for the Governor.
 ORDERS IN CASES 883
PEOPLE V MCJUNKIN, No. 158578; Court of Appeals No. 338400.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
vacate Part II of the judgment of the Court of Appeals, and we remand
this case to the Calhoun Circuit Court for an evidentiary hearing to
determine whether the consent or the plain view exceptions to the
warrant requirement justify the warrantless search and seizure in this
case. Specifically, the court shall determine: (1) whether, based on an
assessment of the totality of the circumstances, consent was freely and
voluntarily given, see People v Borchard-Ruhland, 460 Mich 278, 294
(1999); (2) whether an objectively reasonable officer would conclude that
the homeowner had actual or apparent authority to consent to a search
of the vehicle that the defendant had driven into the garage, see People
v Mead, 503 Mich 205, 216-219 (2019); and (3) whether, assuming the
officers were lawfully in the garage, the items seized from the vehicle
were visible and their incriminating character was immediately appar-
ent, see People v Champion, 452 Mich 92, 101 (1996). In all other
respects, leave to appeal is denied, because we are not persuaded that
the remaining questions presented should be reviewed by this Court. We
do not retain jurisdiction.

Order Granting Oral Argument in Case Pending on Application for

Leave to Appeal Entered December 13, 2019:

GAYDOS V BENDER, Nos. 159107 and 159124; reported below: 326 Mich
App 667. The appellants shall file supplemental briefs within 42 days of
the date of this order addressing whether the privilege of witness
immunity extends to retained experts sued for professional malpractice.
See Maiden v Rozwood, 461 Mich 109 (1999). In addition to the brief, the
appellants shall electronically file appendices conforming to MCR
7.312(D)(2). In the briefs, citations to the record must provide the
appendix page numbers as required by MCR 7.312(B)(1). The plaintiff-
appellee shall file a supplemental brief within 21 days of being served
with the appellants’ briefs. The plaintiff-appellee shall also electroni-
cally file an appendix, or in the alternative, stipulate to the use of the
appendices filed by the appellants. Replies, if any, must be filed by the
appellants within 14 days of being served with the appellee’s brief. The
parties should not submit mere restatements of their application
papers.
The time allowed for oral argument shall be 30 minutes: 15 minutes
for appellants, to be divided at their discretion, and 15 minutes for
plaintiff-appellee. MCR 7.314(B)(1).
Persons or groups interested in the determination of the issue
presented in this case may move the Court for permission to file briefs
amicus curiae. Motions for permission to file briefs amicus curiae and
briefs amicus curiae regarding these cases should be filed in Gaydos v
Bender, Docket No. 159107, only and served on the parties in both cases.
CAVANAGH, J., not participating due to a preexisting relationship with
a party.
884 505 MICHIGAN REPORTS
Leave to Appeal Denied December 13, 2019:

SMITH V CITY OF DETROIT, No. 158300; Court of Appeals No. 337708. On

December 11, 2019, the Court heard oral argument on the application
for leave to appeal as cross-appellant of the July 24, 2018 judgment of
the Court of Appeals. On order of the Court, the application for leave to
appeal and the application for leave to appeal as cross-appellant are
again considered, and they are denied, because we are not persuaded
that the questions presented should be reviewed by this Court.
In re RC, MINOR, Nos. 160467 and 160468; Court of Appeals Nos.
345959 and 346102.

Leave to Appeal Denied December 17, 2019:

PEOPLE V MICHAEL DEARDOFF, No. 160510; Court of Appeals No.

348609.

Order Denying Requests for Advisory Opinion Entered December 18,

2019:

In re HOUSE OF REPRESENTATIVES REQUEST FOR ADVISORY OPINION REGARD-

ING CONSTITUTIONALITY OF 2018 PA 368 AND 369 and In re SENATE REQUEST
FOR ADVISORY OPINION REGARDING CONSTITUTIONALITY OF 2018 PA 368 AND
369, Nos. 159160 and 159201. On July 17, 2019, the Court heard oral
argument on the requests by the House of Representatives and the
Senate for an advisory opinion on the constitutionality of 2018 PA 368 and
2018 PA 369. On order of the Court, the requests are again considered,
and they are denied, because we are not persuaded that granting the
requests would be an appropriate exercise of the Court’s discretion.
CLEMENT, J. (concurring). I concur in the Court’s order denying the
Legislature’s request for an advisory opinion in this matter. I believe
that this Court lacks jurisdiction under Const 1963, art 3, § 8 to issue an
advisory opinion after the effective date of the legislation being scruti-
nized, and thus must refrain from doing so here notwithstanding the
observations made by Justice ZAHRA about the importance of the legal
issues presented. I believe we must instead wait for an “actual contro-
vers[y] where the stakes of the parties are committed and the issues
developed in adversary proceedings.” Request for Advisory Opinion on
Constitutionality of 1978 PA 33, 402 Mich 968, 968 (1978).

I. FACTS

The Michigan Constitution allows Michigan voters to exercise vari-

ous forms of direct democracy, one of which is to initiate legislation via
petitions signed by a requisite number of voters. See Const 1963, art 2,
§ 9. Groups known as “Michigan One Fair Wage” and “MI Time to Care”
sponsored, respectively, proposals known as the “Improved Workforce
Opportunity Wage Act” and the “Earned Sick Time Act.” Pursuant to
MCL 168.471, they filed those petitions with the Secretary of State in
 ORDERS IN CASES 885
the summer of 2018. The Secretary of State then notified the Board of
State Canvassers, MCL 168.475(1), which canvassed the petitions to
determine whether an adequate number of signatures was submitted,
MCL 168.476(1). The Board ultimately certified both petitions as
sufficient,1 MCL 168.477(1), and, pursuant to Const 1963, art 2, § 9, the
proposals were submitted to the Legislature. This constitutional provi-
sion required that the proposals were to “be either enacted or rejected by
the legislature without change or amendment within 40 session days
from the time such petition [was] received by the legislature,” with
enactment not “subject to the veto power of the governor.” The Legisla-
ture ultimately adopted both “without change or amendment” on
September 5, 2018. 2018 PAs 337 and 338. Enacting them meant that
they were not “submit[ted] . . . to the people for approval or rejection at
the next general election.” Const 1963, art 2, § 9. Had they been
submitted to the people and adopted, they would only have been
amendable with a three-fourths majority in the Legislature. Id.
After the 2018 elections, the Legislature turned its attention to these
policy areas once again. Although Attorney General Frank Kelley had,
several decades ago, opined that “the legislature enacting an initiative
petition proposal cannot amend the law so enacted at the same legisla-
tive session,” OAG, 1963-1964, No. 4,303, p 309, at 311 (March 6, 1964),
a member of the Michigan Senate asked for an opinion on that issue and
Attorney General Bill Schuette issued a new opinion which superseded
the prior opinion and concluded that the Legislature could enact
amendments to an initiated law during the same session at which the
initiated law was itself enacted. See OAG, 2017-2018, No. 7,306, p 85
(December 3, 2018). The Legislature thereafter did adopt certain
amendments to these proposals with a simple majority, which—as
ordinary legislation—the Governor signed into law. See 2018 PA 368 and
369. Because neither law contained a more specific effective date, both
took effect on the 91st day after the 99th Legislature adjourned sine die.
Const 1963, art 4, § 27; Frey v Dep’t of Mgt & Budget, 429 Mich 315, 340
(1987). The Legislature adjourned on December 28, 2018, see 2018 HCR
29,2 so the effective date of 2018 PA 368 and 369 was March 29, 2019.

1
In the case of the “Improved Workforce Opportunity Wage Act,” this
happened pursuant to a writ of mandamus issued by the Court of
Appeals. See Mich Opportunity v Bd of State Canvassers, unpublished
order of the Court of Appeals, entered August 22, 2018 (Docket No.
344619), lv den 503 Mich 918 (2018).
2
Ordinarily, the date of adjournment would have been established by
reference to a certificate of the Secretary of State, which state law
requires to be “printed and published with the laws of the session of the
legislature to which it refers . . . .” MCL 4.202. The statute alludes to the
requirement that “[a]ll laws enacted at any session of the legislature
shall be published in book form,” Const 1963, art 4, § 35, and the
implementing statute requires, among other things, this certificate, see
886 505 MICHIGAN REPORTS
On February 13, 2019—about a month after the convening of the
100th Legislature, see Const 1963, art 4, § 13—a member of the Michigan
Senate wrote to newly elected Attorney General Dana Nessel seeking
another opinion on whether 2018 PA 368 and 369 had unconstitutionally
subverted the constitutional protections for initiated legislation, and a
week later, both chambers of the Legislature adopted resolutions asking
for this Court to issue an opinion under Const 1963, art 3, § 8. See 2019
HR 25; 2019 SR 16. On April 3, 2019, we ordered argument on whether to
issue an advisory opinion. In re House of Representatives Request for
Advisory Opinion Regarding Constitutionality of 2018 PA 368 & 369, 503
Mich 1003 (2019). We subsequently ordered additional briefing on the
question of whether this Court has jurisdiction to issue an advisory
opinion after the effective date of the legislation being scrutinized. In re
House of Representatives Request for Advisory Opinion Regarding Con-
stitutionality of 2018 PA 368 & 369, 504 Mich 918 (2019).

II. ANALYSIS

In my view, this Court lacks jurisdiction under our Constitution to

issue an advisory opinion after the effective date of the piece of legislation
being scrutinized—as is the case here. When construing the Michigan
Constitution, “[o]ur primary goal . . . is to give effect to the intent of the
people of the state of Michigan who ratified the Constitution, by applying
the rule of ‘common understanding.’ ” Mich Coalition of State Employee
Unions v Michigan, 498 Mich 312, 323 (2015). Generally, “[w]e locate the
common understanding of constitutional text by determining the plain
meaning of the text as it was understood at the time of ratification,”
although we “also take[] account of ‘the circumstances leading to the
adoption of the provision and the purpose sought to be accomplished.’ ” Id.
(citation omitted).3 “The Address to the People, which was distributed to
Michigan citizens in advance of the ratification vote and which ex-

MCL 24.1(1)(l). However, volumes meeting the specifications of MCL

24.1 are not in the collection of the State Law Library after the 94th
Legislature.
3
Justice VIVIANO faults me for “rel[ying] on extrinsic circumstances to
determine the purpose of th[is] provision” and “violating a fundamental
tenet of textualism,” citing the writings of the late Antonin Scalia in
support of his critique of my references to historical context and the
Address to the People. However, it appears to me that we have explicitly
authorized looking to “extrinsic circumstances to determine the purpose
of” constitutional provisions. In Mich Coalition of State Employee Unions,
498 Mich at 325-326, we said that the Address to the People was “[h]ighly
significant to our assessment,” that “the transcript of the constitutional
convention debates further confirm[ed]” our conclusion, and that “histori-
cal sources confirm[ed]” our conclusion. I believe my “interpretive ap-
proach” is consistent with Justice Scalia’s. See, e.g., Blatchford v Native
Village of Noatak, 501 US 775, 779 (1991) (“Despite the narrowness of its
 ORDERS IN CASES 887
plained in everyday language what each provision of the proposed new
Constitution was intended to accomplish, and, to a lesser degree, the
constitutional convention debates are also relevant to understanding
the ratifiers’ intent.” Id. at 323-324. I believe that all of these sources of
meaning—the text of the Constitution, the circumstances leading to its
adoption, and the constitutional convention proceedings (i.e., the Ad-
dress to the People and the convention debates)—indicate that this
Court lacks jurisdiction to issue an advisory opinion after the effective
date of the legislation being reviewed.

A. CONSTITUTIONAL TEXT

The Michigan Constitution provides that we exercise “the judicial

power of the state . . . .” Const 1963, art 6, § 1. We have described that
power as “ ‘the right to determine actual controversies arising between
adverse litigants, duly instituted in courts of proper jurisdiction.’ ”
People v Richmond, 486 Mich 29, 34 (2010), quoting Anway v Grand
Rapids R Co, 211 Mich 592, 616 (1920). We also are limited to exercising
only the judicial power. Const 1963, art 3, § 2. Out of respect for that
limitation, we have long taken the position that courts do not “decide or
declare abstract questions of right for the future guidance of suitors.”
Street R Co of E Saginaw v Wildman, 58 Mich 286, 287 (1885). It is
beyond the judicial power to opine “where our conclusions could not be
made effective by final judgment, decree, and process[.]” Anway, 211
Mich at 622. Consequently, “our only constitutional authorization to
issue advisory opinions is found in Const 1963, art 3, § 8 . . . .” Devillers
v Auto Club Ins Ass’n, 473 Mich 562, 588 n 57 (2005).
So, what does Const 1963, art 3, § 8 provide? “Either house of the
legislature or the governor may request the opinion of the supreme court
on important questions of law upon solemn occasions as to the constitu-
tionality of legislation after it has been enacted into law but before its
effective date.” We have recognized this text as effectively describing
elements for advisory opinions. “ ‘Michigan’s Constitution . . . restricts
advisory opinions to[:] [1] important questions of “law”, [2] concerning the
“constitutionality” of legislation, [3] “upon solemn occasions” when re-
quested by either house of the Legislature or the Governor, [4] after the
legislation has been enacted into law but before the effective date.’ ”
Request for Advisory Opinion on Constitutionality of 1975 PA 227, 395
Mich 148, 149 (1975), quoting Advisory Opinion re Constitutionality of
1972 PA 294, 389 Mich 441, 482-483 (1973) (LEVIN, J., concurring).4

terms, . . . we have understood the Eleventh Amendment to stand not so

much for what it says, but for the presupposition of our constitutional
structure which it confirms . . . .”). Where, as here, the terms are not
merely narrow, but silent, I believe I am just as justified in considering
the materials I have consulted to discern the text’s meaning.
4
Justice VIVIANO asserts that “the phrase ‘upon solemn occasions’ . . .
is a legal term of art describing the circumstances in which this Court
888 505 MICHIGAN REPORTS
Strictly speaking, the constitutional language only empowers the Leg-
islature to ask for an opinion, and it imposes certain requirements when
the Legislature does so. The next question is whether the constitutional
provision is bilateral—whether it applies to this Court as much as the
Legislature.
There is no dispute that at least some of the provisions of Const 1963,
art 3, § 8 apply to this Court as well as the Legislature. Thus, while that
section does not affirmatively grant this Court the power to issue
advisory opinions, there is no dispute that we can.5 To hold that the

may properly exercise its discretion to issue an advisory opinion.” But the
constitutional text clearly lists a “solemn occasion” as a separate element
from the timing requirement; whatever effect the timing requirement has
on us, it is distinct from the “solemn occasion” requirement. Thus, no one
disputes that, regardless of how solemn the occasion, we cannot render an
advisory opinion about some other issue than a statute’s constitutionality.
The quotes from the convention delegates offered by Justice VIVIANO relate
to this Court looking to the “solemn occasion” language as allowing this
Court not to render an opinion, not granting an affirmative power to do so.
Notably, the several other state constitutions Justice VIVIANO cites all
contain language requiring their state supreme courts to issue advisory
opinions, and it is in this context that other state supreme courts have
focused on this language to avoid rendering advisory opinions they are
disinclined to issue. See Topf, A Doubtful and Perilous Experiment:
Advisory Opinions, State Constitutions, and Judicial Supremacy (New
York: Oxford University Press, 2011), p 72 (“The only qualifications [in the
Maine constitutional clause requiring advisory opinions] were that the
opinions be given only ‘upon important questions of law’ and only ‘upon
solemn occasions.’ The qualifications became, in the six states whose
provisions included them, a window of opportunity [to get around the
constitutional mandate].”) (citation omitted). I am aware of no authorities
suggesting that the “solemn occasion” language provides independent
authority that we would otherwise lack to issue an opinion, and I conclude
that treating it as an element that must be satisfied distinct from the
timing requirement is more consistent with the constitutional text and
our statement in Advisory Opinion on 1975 PA 227.
5
See Ortner, Fayz & DeQuick, Annual Survey of Michigan Law:
June 1, 1989–May 31, 1990, Civil Procedure, 37 Wayne L Rev 373,
380 n 29 (1991) (“The authority of the supreme court to render advisory
opinions is indirectly conferred by the authority granted the legislature or
governor to request an advisory opinion[.]”). Because of this dynamic, I
disagree with Justice VIVIANO’s discussion of the “grammatical structure”
of the constitutional section. Since our authority to opine is derived from
the Legislature’s authority to request an opinion, I am unpersuaded that
the fact that the timing requirement is grammatically tied to the making
of the request ought to change my analysis.
 ORDERS IN CASES 889
Legislature may ask for an opinion but we may not issue one would
render the constitutional text nugatory.6 That the Legislature may only
ask about questions of “law” confines us to answering questions that do
not require factual development. See Request for Advisory Opinion on the
Constitutionality of 1979 PA 57, 407 Mich 60, 66 (1979), quoting Advisory
Opinion re Constitutionality of 1974 PA 272, 393 Mich 916 (1975)
(refusing to issue an advisory opinion where “[t]he questions ‘are so broad
that any advisory opinion of the Court would depend for resolution on
whatever particular factual situations the Court would be forced to
hypothesize”). There is also no dispute that “[t]he Court may be requested
to render an advisory opinion only concerning ‘the constitutionality of
legislation’ . . . .” Id. at 67. See also Advisory Opinion re 1972 PA 294, 389
Mich at 483 (LEVIN, J., concurring) (“It would appear . . . that in the
context of an advisory opinion, we may not examine questions of fact, and
questions concerning the interpretation or construction of a statute may
not be considered except as those questions affect a constitutional
question.”) We have also held that the requirement that requests for
advisory opinions not come until after legislation has been enacted into
law constrains both the Legislature and this Court. Request for Advisory
Opinion on 1975 PA 227, 395 Mich at 149-150 (“Viewed against what the
Constitution requires, § 200 of 1975 PA 227 is insufficient to invoke this
Court’s discretionary power to render an advisory opinion. . . . [T]he
request was made during the enactment process itself, whereas the
Constitution requires that the request be made after enactment and
before the effective date.”).7
The question we face here is what to make of the “effective date”
deadline in the Constitution. It clearly requires the Legislature to request
an advisory opinion prior to the effective date, and when it asks too late,
we may not opine. See Request for Advisory Opinion on Constitutionality
of 1975 PA 222, 395 Mich 361, 361 (1975); Request for Advisory Opinion
on the Constitutionality of 1975 PA 195 & 196, 395 Mich 642 (1975). But
if the Legislature must ask prior to the effective date, I believe we must
also opine before the effective date. Arguably, the resolution of this issue

6
We have, for that matter, also said that we may not render advisory
opinions to anyone other than the Legislature or Governor. See Advisory
Opinion re Constitutionality of 1974 PA 242, 394 Mich 41, 53 (1975),
quoting Advisory Opinion re 1972 PA 294, 389 Mich at 485 (LEVIN, J.,
concurring) (“ ‘We are not . . . constitutionally authorized to furnish
advisory opinions to the Michigan Trial Lawyers Association or a com-
mittee of the State Bar’. Similarly, we are not constitutionally authorized
to furnish advisory opinions to the Attorney General or amici.”).
7
More broadly, we have indicated that satisfaction of the timing
requirements of the advisory-opinion section are jurisdictional. See In re
Request for Advisory Opinion Regarding 2005 PA 71, 479 Mich 1, 13
(2007) (“Because the House of Representatives requested an advisory
opinion well before th[e effective] date, this Court indisputably has
jurisdiction . . . to render an advisory opinion in this matter.”).
890 505 MICHIGAN REPORTS
can be found in our discussion of the elements of advisory opinions. We
said that “ ‘Michigan’s Constitution . . . restricts advisory opinions to . . .
after the legislation has been enacted into law but before the effective
date.’ ” Request for Advisory Opinion on 1975 PA 227, 395 Mich at 149
(citation omitted). While the question there was whether the Legisla-
ture’s request had been made “after [the statute] ha[d] been enacted into
law”—and is therefore perhaps distinguishable from our present concern
—our remark certainly came in the course of closely considering the
jurisdictional consequences of the timing requirements in the advisory-
opinion process, and thus may well be the sort of “ ‘principle[] of law
deliberately examined and decided by a court of competent jurisdiction
[that] should not be lightly departed,’ ” People v Graves, 458 Mich 476,
480 (1998), quoting People v Jamieson, 436 Mich 61, 79 (1990) (opinion by
BRICKLEY, J.). We have more clearly remarked in subsequent nonbinding
dicta that the timing requirements apply to this Court. See Wayne Co v
Hathcock, 471 Mich 445, 485 n 98 (2004) (“The only instance in which we
are constitutionally authorized to issue an advisory opinion is upon the
request of either house of the Legislature or the Governor—and, then,
only ‘on important questions of law upon solemn occasions as to the
constitutionality of legislation after it has been enacted into law but
before its effective date.’ ”).8 Regardless of how bound we ought to

8
See also Woodman v Kera LLC, 486 Mich 228, 264 n 2 (2010) (opinion
by MARKMAN, J.) (“Const 1963, art 3, § 8, authorizes this Court to issue
advisory opinions concerning the constitutionality of legislation, but . . .
only after it has been enacted into law but not yet taken effect.”). Many
commentators have characterized the “effective date” language as a
restriction on our ability to opine. See 22 Michigan Civil Jurisprudence,
Statutes, § 125, p 710 (“The Michigan Supreme Court may render . . . an
opinion as to the constitutionality of legislation after it has been enacted
into law but before its effective date.”); 7A Michigan Pleading & Practice
(2d ed), § 52:20, p 30 (“The Constitution empowers the Supreme Court to
furnish advisory opinions . . . , but only as to legislative acts that are
already passed and signed by the governor, and before they become
effective.”); Note, State Court Advisory Opinions: Implications for Legis-
lative Power and Prerogatives, 97 BU L Rev 2243, 2259 (2017) (“The
Michigan Constitution . . . permits an advisory opinion to be issued only
after a bill ‘has been enacted into law but before its effective date.’ ”);
Doubtful and Perilous Experiment, p 95 (“Michigan’s constitution limits
advisory opinions to advice on legislation only after it has been enacted
but before its effective date.”); Baughman, Justice Moody’s Lament
Unanswered: Michigan’s Unprincipled Retroactivity Jurisprudence, 79
Mich BJ 664, 667 n 31 (2000) (Our authority to issue advisory opinions
“may be exercised only . . . after the legislation has been enacted but
before it has gone into effect . . . .”); Civil Procedure, 37 Wayne L Rev at
380 (“Although the Michigan constitution confers authority upon the
court to render advisory opinions, that authority . . . is restricted . . . to
questions concerning the constitutionality of enacted legislation that has
not yet taken effect.”).
 ORDERS IN CASES 891
consider ourselves by these prior remarks of ours, I believe they are in
any event correct. I have two reasons for this conclusion.
First, I see no reason that all of the other requirements of the
advisory-opinion section would apply to both this Court and the
Legislature, but the “before its effective date” requirement would not.9
That the Constitution expresses any timing element at all implies
restrictions on the prerogatives of the branches of government during
the advisory-opinion process. Consider that—again, strictly speaking—
the Constitution says only that the Legislature “may request the opinion
of the supreme court . . . as to the constitutionality of legislation after it
has been enacted . . . .” It does not expressly say that such a request
cannot be made before legislation is enacted, for example by saying that
the Legislature “may request the opinion of the supreme court . . . only
after [the law] has been enacted.” Instead, such a restriction is implied,
although we have (correctly, in my view) said that it exists—and that it
restrains both this Court and the Legislature.10 See Request for Advi-
sory Opinion on 1975 PA 227, 395 Mich at 149-150. The Constitution
then also requires that such a request be made “before [the legislation’s]
effective date.”11 The implicit requirement to wait until legislation has
been enacted, and the explicit requirement to ask before it takes effect,
creates a window of time within which requests must be made.
I believe the existence of this window communicates limitations on
both the ability to request an advisory opinion from us and our ability to
render one. That the Legislature cannot ask (and we cannot opine) until
the legislation is enacted appears to be aimed at requiring the Legisla-
ture to have committed to a particular course of action, leaving us out of

9
Justice MARKMAN does not believe my read of the Constitution is
“even a reasonably logical implication of” the constitutional language,
but I struggle to see the logic of accepting that all of the other
requirements of the advisory-opinion process apply to both the Legisla-
ture and this Court, but that this requirement, uniquely, applies only to
the Legislature. I see no textual basis for distinguishing the “before its
effective date” requirement from the others.
10
Justices MARKMAN and VIVIANO acknowledge that the Constitution
requires that the Legislature wait to ask for an advisory opinion until
after the legislation is enacted, but a close reading of the Constitution
indicates that it no more expressly requires that than it expressly
precludes us from issuing a posteffectiveness advisory opinion. Both
restrictions are, instead, implied from the text and its apparent
purpose.
11
The Constitution’s use of “but” in the phrase “but before [the law’s]
effective date,” in but’s conjunctive sense that indicates an exception,
avoids any lack of textual clarity about whether that functions as a
restraint—it undoubtedly does. See The American Heritage Dictionary
of the English Language (5th ed), defs 3 and 4 (defining “but”).
892 505 MICHIGAN REPORTS
acting as legislative counsel during the drafting process.12 But what
purpose is served by requiring that the request arrive before the
effective date, if our opinion must not also be rendered before the
effective date? If we can issue an advisory opinion after the effective
date, why does the Constitution bother to expressly state that the
request must arrive before then? What has changed the day after
legislation takes effect such that the Legislature may not even ask but
we can still opine? It seems apparent to me that the “before the effective
date” deadline communicates a structural function similar to the “after
it has been enacted into law” requirement.13 In my view, that structural
function is forcing the Legislature to request, and this Court to issue, an
opinion before legislation takes effect, so the Legislature can remedy
defects we identify.14 Therefore, I believe the presence of the deadline for
the Legislature to make the request also implies the same deadline for
us to act upon it, in much the same way as the implied requirement that
the Legislature not ask before legislation is enacted leaves us unable to
opine. In other words, our ability to opine coincides with the window of
time within which the Legislature can ask.15

12
This apparent purpose for the text was also the stated rationale
offered by the proponent of the language at the convention, future
Secretary of State Richard Austin. See 1 Official Record, Constitutional
Convention 1961, p 1548 (“[W]ould it be possible for us to add some
language to indicate that this should be done by the supreme court only
after the legislation has been enacted into law? This, of course, would
simply prevent the supreme court from getting involved until the
legislative process was completed and they would be working with a law
rather than some bills or proposals for legislation.”).
13
Justice MARKMAN contends that the Constitution draws a distinction
between requirements as to the “substance” of advisory opinions and the
“procedural” requirement of proper timing. However, it seems apparent
to me that the timing requirement—at least on the front end, requiring
that we not opine until a statute is “enacted into law”—is more than
procedural, but is rather substantive and structural. If that require-
ment is structural, I see no reason the other end of the timing
requirement would not be as well.
14
Consistent with this, one delegate remarked that he supported the
proposal to add this section because “it enables us to settle questions . . .
in advance without the necessity for going through all the agony of
setting up [executive branch] divisions and departments and then
having to dismantle them” and “it gives the legislature and the gover-
nor . . . an opportunity to get a decision rather than to plunge ahead
regardless of what the legal outcome may be.” 1 Official Record,
Constitutional Convention 1961, p 1544 (emphasis added).
15
Justice MARKMAN faults my interpretation because it imposes one
“additional and applicable time restriction . . . found nowhere within the
 ORDERS IN CASES 893
My second observation about the text of the Constitution is that I
believe our extraordinary power to issue advisory opinions must be
construed in light of our ordinary exercise of only the judicial power.16 We
are only expressly granted “the judicial power” in Const 1963, art 6,
§ 1—and, in fact, expressly confined to the judicial power, Const 1963,
art 3, § 2—while our ability to issue advisory opinions is an implicit
exception to that limitation under Const 1963, art 3, § 8. Careful
consideration of the nature of our “judicial power” suggests we cannot
issue advisory opinions after the effective date of the legislation being
reviewed.17 Advisory opinions are “a departure from the historic judicial
scheme.” Request for Advisory Opinion on Constitutionality of 1977 PA
108, 402 Mich 83, 86 (1977). In my view, the best way to reconcile these

language of Const 1963, art 3, § 8 or anywhere else within our Consti-

tution.” I struggle to see why he objects to this. The word “moot” does not
appear anywhere in the Constitution either, yet filing an application for
leave to appeal that is timely under MCR 7.305(C) does not insulate the
proceeding from being dismissed for mootness. See, e.g., People v Givens,
482 Mich 1072 (2008); People v Newell, 444 Mich 899 (1993). A party who
“relied on th[e] clear and unambiguous language [of MCR 7.305(C)] in
reaching the conclusion that this was the only applicable time restriction”
may well be sorely disappointed. Indeed, although the court rule is
arguably of constitutional significance—since it is promulgated pursuant
to our authority to prescribe both our own appellate jurisdiction and rules
of procedure, Const 1963, art 6, §§ 4 and 5—we have not treated our
ability to promulgate the rule as an opportunity to broaden the judicial
power the Constitution vests us with so as to dispense with mootness as
an obstacle to adjudication. Justice MARKMAN is unpersuaded by this
observation because the doctrine of mootness is “well established,” but it
seems to me to be in the nature of a question of first impression that the
answer to it is not yet well established. We have never performed this
analysis before, so I am not surprised that an answer to it is not “well
established.” Moreover, if it is acceptable to advocate that this Court
overrule itself and reinstate a rule of law it has expressly rejected, see
Ader v Delta College Bd of Trustees, 493 Mich 887, 887-889 (2012)
(MARKMAN, J., dissenting) (calling on the Court to grant leave to appeal so
as to overrule Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349
(2010)), I believe my argument that the Court ought to recognize a rule it
has never before considered should not be faulted for its novelty.
16
While Justice VIVIANO faults my analysis for discerning a rule that
is not “explicitly decreed,” I would note that our power to issue advisory
opinions is just as “extraordinary,” yet is also not “explicitly decreed.”
17
Justice MARKMAN describes the language of Const 1963, art 3, § 8 as
“straightforward and unambiguous,” but I disagree, at least as to this
issue—because it does not expressly grant this Court the authority to
issue advisory opinions (even while undoubtedly implying it), the param-
894 505 MICHIGAN REPORTS
constitutional provisions is to conclude that advisory opinions can only be
issued prior to the effective date of the legislation being scrutinized. An
advisory opinion prior to the effective date of legislation is far more
consistent with the nature of an advisory opinion—and therefore is in less
tension with our ordinary constitutional constraint of being limited to
“the judicial power”—than an advisory opinion after the effective date.
Prior to the effective date, the Legislature can act on our advice to avoid
the harm and confusion attendant to a statute’s being found unconstitu-
tional. After the effective date, harms have already been suffered; an
abstract statement from this Court holding a law unconstitutional
posteffectiveness may well introduce more confusion, rather than less,
given that the issue would not be presented in the context of an actual
plaintiff suffering a discrete harm that can be remedied with a court
order. Consequently, I think the nature of the advisory-opinion process as
a limited exception to our ordinary exercise of “the judicial power” means
that the text of the Michigan Constitution itself suggests that advisory
opinions after the effective date of legislation are not allowed.18

B. THE CIRCUMSTANCES LEADING TO CONST 1963, ART 3, § 8

As noted, our caselaw establishes that where the meaning of the

constitutional text is doubtful, we can supplement it with other consid-
erations, such as the circumstances leading to the adoption of the
relevant provision. Here, those circumstances also indicate that issuing

eters of our advisory-opinion power are not clear from the text alone given
its uneasy juxtaposition with our ordinary exercise of what is essentially
its antithesis, the judicial power.
18
Justice MARKMAN disagrees with my characterization of the advisory-
opinion process as a limited exception to our exercise of the judicial power
and claims it instead “broaden[ed] this Court’s, and this state’s, ‘judicial
power’ to also encompass the authority to issue advisory opinions . . . .”
The structure of the Constitution suggests that his gloss is incorrect;
while Article 6 of the Michigan Constitution lays out the parameters of
the judicial power, see Const 1963, art 6, § 1 et seq., the advisory-opinion
process is provided for in Article 3. Moreover, we have characterized an
advisory opinion as “not a judicial determination of the question by the
court,” Anway, 211 Mich at 603, as well as cited with apparent approval
the remark that “[i]n no sense, even though . . . signed by five or more
Justices . . . , would . . . an [advisory] opinion be or become a judicial
determination,” Advisory Opinion re Constitutionality of 1972 PA 294, 389
Mich 441, 461 n 1 (1973), quoting Advisory Opinion re Constitutionality of
PA 1966, No 261, 379 Mich 55, 67 (1967), rev’d on other grounds 380 Mich
736 (1968) (BLACK, J., concurring). See also Cassidy v McGovern, 415 Mich
483, 498 (1982) (citing Justice BLACK’s concurrence with approval); Justice
Moody’s Lament, 79 Mich B J at 667 n 31 (Our authority to issue advisory
opinions “is a special authority, not part of the judicial power . . . .”).
 ORDERS IN CASES 895
such opinions after the effective date of legislation was not contem-
plated. While Justice MARKMAN asserts that “expediting an answer to a
question that can only be answered by this Court . . . is the very purpose
of an advisory opinion,” I believe this history demonstrates the contrary.
I believe the lesson of the story is that the advisory-opinion process was
not intended to provide an expeditious answer, but rather to avoid the
problems that can sometimes attend to a law being held unconstitu-
tional after it becomes effective—to enable review of a statute before any
injury has been suffered.
The advisory-opinion provision was added to the Constitution in
response to the fiscal and legal crises Michigan suffered in the middle
decades of the 20th century relating to the sales tax. “The sales tax came
to us in the depths of a great depression in order to provide the means
for fulfilling desperate governmental needs.” Lockwood v Comm’r of
Revenue, 357 Mich 517, 545 (1959).
By 1932, as a consequence of the Depression, [property] tax
delinquency in Michigan had increased to frightening proportions,
thus drastically reducing the yield from property tax assessments
at the very time when additional monies were so desperately
needed. By 1933 the delinquency rate was reported to be the
highest in the country. . . . In November 1932 voters approved an
amendment to the constitution that limited property taxes to no
more than fifteen mills (1.5 percent) of assessed valuation.[19] This
virtually forced the legislature to find new sources of revenues,
because fifteen mills was inadequate to support state as well as
county, township, and school programs. Thus in 1933 the legisla-
ture . . . passed [1933 PA 62,][20] an act under which property
taxes would go entirely to local units of government.[21] To replace
the $23.5 million the state had received from property taxes in
1932, the legislature enacted [1933 PA 167,][22] a 3 percent sales
tax. [Dunbar & May, Michigan: A History of the Wolverine State
(Grand Rapids: Wm. B. Eerdmans Publishing Co, 1995), p 523.]
However, “[t]he sales tax, powerful though it was, was vulnerable to
avoidance.” Lockwood, 357 Mich at 546.

19
Const 1908, art 10, § 21, the legality of which was tested in Pontiac
Sch Dist v City of Pontiac, 262 Mich 338 (1933). Our current Constitu-
tion contains a modified analogue. See Const 1963, art 9, § 6.
20
This statute is, to this day (in amended form), our Property Tax
Limitation Act, MCL 211.201 et seq.
21
See also Wikman v Novi, 413 Mich 617, 688 n 66 (1982) (“After the
15-mill limitation was added to the constitution in 1932 and the Property
Tax Limitation Act was enacted in 1933, the state ceased to receive a
share of the tax revenues generated by the local assessment process.”).
22
This statute is, to this day (in amended form), our General Sales
Tax Act, MCL 205.51 et seq.
896 505 MICHIGAN REPORTS
If the purchase, possibly of an automobile, were made not in
Michigan but in a neighboring State the Michigan sales tax would
not apply. Thus not only did the State of Michigan lose the tax
moneys but a Michigan merchant lost the sale. . . . To meet the
threat of avoidance a tax was enacted[, 1937 PA 94].[23] The
article purchased in another State would be taxed in Michigan by
virtue of its use here, and at the same rate[24] as if sold in
Michigan in the first place. This was the use tax. Through its
enactment the flight across the border was blocked, the Michigan
merchant protected in his competitive position, and the State tax
funds safeguarded. [Id.]
The sales and use taxes were an effective form of government finance. The
sales tax “was a tax easily collected and possessing the power of producing
vast revenue.” Id. at 545. “No meal could be consumed without its
payment, no shelter built, no clothing purchased without meeting its
exaction, and in advance. It fell on all alike, and without regard to want
or ability to bear the tax. Vast sums poured into the State treasury.” Id. at
545-546. “It soon became our leading source of revenue,” id. at 546-547,
and “[b]y 1937 this tax was bringing in over $55 million,” Michigan, p 523.
However, “the distribution of these funds” eventually became a
problem. Lockwood, 357 Mich at 546. First, “an amendment added to the
constitution in 1939 forbade the use of revenues derived from the
gasoline and weight taxes for anything but highways.”25 Michigan,
p 524. Second, sales-tax revenues also were constitutionally restricted.
The sales tax . . . satisfactorily met the state’s needs for more
than a decade. During World War II, in fact, revenues from this
and other taxes had resulted in the accumulation of a sizable
surplus in the state treasury. But local governmental units found
themselves caught in a squeeze. Rising costs of materials as well
as wages and salaries created a serious problem for them in view
of the fifteen-mill tax limitation. At every legislative session
mayors and school superintendents entreated the legislature for
state aid. The response was meager. As a result of this situation,
a constitutional amendment providing for the diversion of part of
the state sales tax to local units was placed on the ballot by
petition and adopted by the people in 1946.[26] [Id. at 551.]

23
This statute is, to this day (in amended form), our Use Tax Act, MCL
205.91 et seq.
24
That is to say, at the time 3%.
25
Const 1908, art 10, § 22. Our current Constitution contains a
modified analogue. See Const 1963, art 9, § 9.
26
Const 1908, art 10, § 23, the legality of which was tested in City of
Jackson v Comm’r of Revenue, 316 Mich 694 (1947). Our current
Constitution contains a modified analogue. See Const 1963, art 9, § 10.
 ORDERS IN CASES 897
The amendment “took out of the hands of the legislature the spending of
most of the 3 cents paid in.” Lockwood, 357 Mich at 547.
One-half of 1 cent went back to the counties and the other half to
school districts. These diversions left 2 cents of the tax, but of those
2 cents almost half in turn, also was earmarked by the same
amendment, leaving the legislature only a little over one-fifth of
the total sales tax moneys available for distribution in its discre-
tion. [Id.]
See also Michigan, p 551 (“At the time it was approved, it diverted some
77 percent of the state’s revenues to local governmental units.”). “The
adoption of this ‘sales tax diversion amendment’ marked the beginning
of a long period of financial problems and difficulties for the state
government.” Id. With “the bulk of the money . . . no longer available for
the general expenses of government,” “[i]t require[d] no great acuity to
anticipate the next step since the path is worn smooth by constant use”:
“It was simply to increase the tax.” Lockwood, 357 Mich at 547.
That avenue, however, was sealed off. “The sales tax, said our people,
was not to follow this well-worn path of constant increases.” Id. “An
amendment [to Const 1908, art 10, § 23] adopted in 1954 limited the
sales tax to 3 percent.” Michigan, p 552. This prompted a fiscal crisis.
“By July 1, 1958, the state treasury showed a deficit of $21.1 million. . . .
The amount of the deficit increased to $95.4 million by July 1, 1959.” Id.
“On August 29 lawmakers passed a series of bills to increase tax
revenues,” and “[m]ain reliance was placed . . . upon [1959 PA 263,]” id.
at 560-561. This statute amended the Use Tax Act to increase the tax to
4%, except for articles on which 3% sales tax had already been paid—for
those, the use tax would be only 1%. Moreover, the statute contained
“accommodation devices” whose “combined effect . . . [was] to convert
the tax from one purportedly levied upon the user for his use of personal
property, and to be reported and paid by him, into a tax to be collected
by the seller at the point of sale and for the collection and reporting of
which he, and he alone, [was] responsible.” Lockwood, 357 Mich at
551-552. “In effect this was an addition to the 3 percent sales tax,” but
“[b]y calling it a use tax the legislature sought to evade the constitu-
tional limit of 3 percent on the sales tax.” Michigan, p 561.
In an original action for mandamus in this Court, Charles Lock-
wood27 challenged the constitutionality of the 1959 use-tax amendment.

27
Charles Lockwood, a Detroit College of Law professor, perhaps most
prominently represented several service members caught up in the “Red
Scare” of the 1950s and accused of being communists. His work getting
Milo Radulovich reinstated in the United State Air Force is commemo-
rated by a Michigan Legal Milestones plaque outside the MSU College of
Law. See State Bar of Michigan, Milo Radulovich and the Fall of
McCarthyism <https://www.michbar.org/programs/milestone/milestones
_miloradulovich> (accessed November 26, 2019) [https://perma.cc/X66W-
E6T4]. See generally Ranville, To Strike at a King: The Turning Point in
the McCarthy Witch-Hunts (Troy: Momentum Books, Ltd, 1997).
898 505 MICHIGAN REPORTS
We took “judicial notice of what every citizen of this State kn[ew] from
his daily life”: “[i]n actual operation of the tax, . . . [a] tax of 4% upon
retail sales [was then] being collected by retailers in every city and
village and township of Michigan,” leaving “[t]he citizens of this
State . . . under no illusion—the tax payable by them upon their retail
purchases ha[d] been increased above the 3% rate despite the prohibi-
tion in their Constitution.” Lockwood, 357 Mich at 553-554. “[A] levy of
4% [was being] made on the sale of every loaf of bread, every pair of
shoes, and every stick of furniture despite the constitutional limitation
of 3%.” Id. at 559. We held that the 1959 use-tax amendment was an
unconstitutional effort to evade the constitutional sales-tax limit and
ordered the state “to desist and refrain from levying, assessing or
collecting the additional 1% tax . . . .” Id. at 560.
Although the use-tax law had an effective date of September 1, 1959,
see 1959 PA 263, § 2, and we issued our opinion in Lockwood holding it
unconstitutional on October 22, 1959, several millions of dollars of tax
revenue were unconstitutionally collected in the interim. At the consti-
tutional convention, the proponent of the advisory-opinion section of our
Constitution, future Secretary of State Richard Austin, remarked:
I am intensely interested in having a provision of this sort
included in the constitution because I had quite a bit of experi-
ence with the 1959 law to increase the sales tax by way of a very
peculiar means, through the use tax, to 4 per cent. Subsequently
it was declared unconstitutional and there was well over $20
million of moneys collected from taxpayers in small amounts that
could not be refunded to them.[28] It was collected from them
unconstitutionally, but it could not be refunded to them because
there were administrative problems involved. And I certainly
would not like to see a recurrence of this kind of affair. . . . This
would do what I think needs to be done. It would first require that
both houses of the legislature pass on the legislation and even the
governor sign the bill so that we do have a law which the court can
rule on, at least as to the constitutionality of it, but at least give
the court a chance to look at it before it becomes effective and
taxes are collected under the defective law. [1 Official Record,
Constitutional Convention 1961, p 1547.]
The apparent problem the advisory-opinion section was trying to solve,
in other words, was to prevent the collection of unconstitutional taxes in
the first place.
In my view, then, the history of the sales- and use-tax challenge
builds on the constitutional text to further demonstrate that an advisory
opinion after legislation’s effective date is not contemplated by the
Constitution. The reason we consider the circumstances leading up to

28
Other sources offer a smaller figure. See Michigan, p 711 n 16
(“Although the use tax was thrown out by the courts, about $13 million
had already been collected, of which amount applications were received
for the refunding of only $900,000.”).
 ORDERS IN CASES 899
the adoption of the constitutional provision is that a “constitutional
provision must receive a reasonable construction, with a view to give it
effect,” which focuses on identifying “the mischief designed to be
remedied . . . .” People ex rel Drake v Mahaney, 13 Mich 481, 497
(1865).29 The problem the advisory-opinion section was intended to
solve was the one caused by Lockwood, but the problem there was not an
insufficiently expeditious review of the statute. The case was an original
action in this Court and was resolved slightly more than seven weeks
after the legislation took effect.30 Rather, the review was inadequate
because the unconstitutionally collected taxes could not be returned to
the taxpayers. The advisory-opinion provision was added to enable this
Court to review legislation prior to its effective date, so that these kinds
of problems could be avoided in the first place.31

29
My analysis here does not run afoul of Justice VIVIANO’s critiques of
the “mischief rule.” My analysis does not “first identify[] the problem . . .
that [this constitutional provision] was designed to remedy and then
adopt[] a construction that will suppress the problem and advance the
remedy . . . .” Rather, I begin with the constitutional text, offer what I
believe is the best reading of it on its own, and supplement it with
consideration of the problem the convention was trying to solve. I believe
Justice COOLEY would have agreed with my approach, because—
notwithstanding the remark from his “seminal treatise” cited by Justice
VIVIANO—Justice COOLEY also authored Mahaney. Moreover, in light of
Justice VIVIANO’s acknowledgment that this section of the Constitution “is
not a model of clarity,” it is not clear to me under what circumstances it
would ever be appropriate to consult or make practical use of historical
context if we cannot do so here.
30
To the extent that the convention contemplated a need for prompt
posteffectiveness review of legislation, it was seemingly effectuated by
maintaining our original jurisdiction “to issue, hear and determine
prerogative and remedial writs,” Const 1963, art 6, § 4—such as the writ
of mandamus that was at issue in Lockwood and over which we had
jurisdiction under Const 1908, art 7, § 4.
31
Justice MARKMAN concedes “that historical context may be relevant in
interpreting a constitutional provision,” but asserts that “even assuming
that the ‘purpose’ of Const 1963, art 3, § 8 was to allow this Court to issue
advisory opinions before the effective date of legislation, this does not
signify in any way that Const 1963, art 3, § 8 does not also allow the Court
to issue advisory opinions after the effective date.” Considering this
proposition standing alone, I would agree—the circumstances leading up
to Lockwood would not, on their own, be enough to conclude that we must
only be able to issue advisory opinions prior to the effective date of
legislation. But I do not think these circumstances must stand alone; they
only supplement my read of the constitutional text, where I begin my
900 505 MICHIGAN REPORTS
C. ADDRESS TO THE PEOPLE

Finally, the Address to the People also indicates that advisory

opinions after the effective date of legislation are impermissible. We
have described the Address to the People “as an authoritative contem-
porary construction of the constitutional provisions that the citizens of
Michigan were asked to vote on,” Mich Coalition of State Employee
Unions, 498 Mich at 325, because “it was approved by the general
convention . . . as an explanation of the proposed constitution” and “was
widely disseminated prior to adoption of the constitution by vote of the
people,” Regents of the Univ of Mich v Michigan, 395 Mich 52, 60 (1975).
In my view, the Address to the People confirms my interpretation of the
advisory-opinion process in two ways. First, it makes clear that Mr.
Austin’s view of the relationship between the advisory-opinion process
and the sales/use-tax controversy was not some personal idiosyncrasy.
Rather, the Address said that “[a]n example of the possible exercise of
th[e advisory-opinion] section would have been the matter of the 4-cent
state use tax which was passed and later declared unconstitutional.” 2
Official Record, Constitutional Convention 1961, p 3368. Second, and
more importantly, the Address to the People flatly states that Const
1963, art 3, § 8 “empowers the supreme court to furnish advisory
opinions . . . but only as to legislative acts that are already passed and
signed by the governor, and before they become effective.” Id. (emphasis
added). What was communicated to the people, then, was (1) that
advisory opinions could only be rendered “before [legislative acts]
become effective,”32 and (2) that the advisory-opinion process was meant

analysis. Moreover, in light of the Constitution’s silence in expressly

describing the parameters of when we can issue advisory opinions, if we
cannot look to this history to help make sense of that silence it is once
again not clear to me under what circumstances it would ever be
appropriate to consult or make practical use of historical context.
32
Justice VIVIANO “question[s] whether” the language I find relevant
in the Address to the People “is entitled to the elevated consideration
normally given to the Address,” given that it was not included in the
proof of the Address that was mailed out to the convention delegates in
advance of its approval, but was rather “inserted along with scores of
other changes” that “were not mailed to the delegates until . . . four days
before the Address was approved.” I am, however, not aware of any
principle of law that a deliberative assembly’s action can be scrutinized
for the amount of time spent considering it. Because “[a]ll political
power is inherent in the people,” Const 1963, art 1, § 1, it was the people
themselves to whom the question of ratification was submitted, Const
1963, sched § 15, and our principal inquiry is therefore how “ ‘the great
mass of the people themselves’ ” would understand the text, Mich Farm
Bureau v Secretary of State, 379 Mich 387, 391 (1967), quoting May v
Topping, 65 W Va 656, 660 (1909). Therefore, the central issue is the
 ORDERS IN CASES 901
to address the problem presented by Lockwood, which was judicial
review of a statute after its effective date. This resolves any remaining
doubt in my mind about how best to interpret both the constitutional
text and the inferences that should be drawn from the advisory-opinion
process being a response to Lockwood.33

D. HISTORICAL PRACTICE

On the other hand, and challenging my interpretation of Const 1963,

art 3, § 8, is the fact that on several occasions we have issued advisory
opinions after the effective date of the legislation being assessed.
However, I find this past practice unpersuasive. First, on at least one
occasion, we appear to have ignored even an uncontroversial constitu-
tional timing requirement. In Advisory Opinion re Constitutionality of
1974 PA 242, 394 Mich 41 (1975), we reviewed legislation which was
given immediate effect on the date of enactment: July 26, 1974. Where
there is no gap between a statute’s date of enactment and its effective
date, there is seemingly no opportunity for the Legislature to even ask
(let alone for us to opine) after its enactment but before its effective
date.34 I am disinclined to defer to our past practice if we disregarded

effect the Address had on the electorate to whom it was disseminated

and which was invited to look to it in understanding the proposed
constitution they were voting on, and what the people were told was that
advisory opinions could only be rendered “before [legislative acts]
become effective.”
33
I disagree with Justices MARKMAN and VIVIANO that the Address to
the People contradicts the constitutional text. The Constitution ex-
pressly allows the Legislature to ask for an advisory opinion on a piece
of legislation until its effective date, just as MCR 7.305(C) expressly
establishes deadlines for filing an application for leave to appeal in this
Court. That the expression of those deadlines does not also recite the
risk of, e.g., mootness being an obstacle to adjudication does not mean
that dismissal on account of mootness would be “inconsistent with [MCR
7.305(C)’s] actual language,” and I do not think it contradicts the
Constitution to conclude that similar obstacles to an advisory opinion
exist even if not recited in Const 1963, art 3, § 8. I would note that the
Address to the People’s expression of the meaning of Const 1963, art 3,
§ 8 is a sufficiently natural gloss on the constitutional text that we
echoed it in the previously quoted dicta from Hathcock.
34
Our handling of 1975 PA 227 also deserves scrutiny. The Legisla-
ture asked us 10 questions about the statute, the first of which being
whether it complied with the title-object requirement of Const 1963, art
4, § 24. Prior to the law’s effective date, we said that the law violated
this constitutional requirement, Advisory Opinion on Constitutionality
of 1975 PA 227 (Question 1), 396 Mich 123 (1976), but after the effective
902 505 MICHIGAN REPORTS
the Constitution’s uncontroversial requirements. Second, most of the
remaining posteffectiveness advisory opinions left the question of the
timing of the request and the propriety of issuing a posteffectiveness
opinion unaddressed.35 This is certainly not a “ ‘principle[] of law
deliberately examined.’ ” Graves, 458 Mich at 480 (citation omitted).
The one time we appear to have specifically concerned ourselves with
whether it was too late for us to issue an advisory opinion is in In re
Request for Advisory Opinion Regarding 2005 PA 71, 479 Mich 1 (2007).
In 1996, the Legislature had amended MCL 168.523 to require that
voters present a photo ID in order to vote. Attorney General Kelley,

date we went on to offer answers to the remaining questions, Advisory

Opinion on Constitutionality of 1975 PA 227 (Questions 2-10), 396 Mich
465 (1975). Because the latter opinion came while the Legislature was
drafting legislation that was responsive to our first opinion, it seems to
have been in substantial tension with the goal of this Court not acting
as legislative counsel.
35
See Advisory Opinion re Constitutionality of PA 1966, No 261 (On
Reconsideration), 380 Mich 736, rev’g 379 Mich 55 (opinion issued on
May 8, 1968, reversing opinion issued on April 10, 1967, regarding
statute that took effect on March 10, 1967); Advisory Opinion re
Constitutionality of PA 1966, No 346, 380 Mich 554, 561 (1968) (opinion
issued on May 6, 1968, regarding statute that took effect on March 10,
1967); Advisory Opinion re Constitutionality of PA 1970, No 100, 384
Mich 82 (1970) (opinion issued on October 5, 1970, regarding statute
that took effect on September 1, 1970); Advisory Opinion re Constitu-
tionality of 1972 PA 258, 389 Mich 659 (1973) (opinion issued on July 24,
1973, regarding statute that took effect on January 1, 1973); Advisory
Opinion re Constitutionality of 1973 PA 1 & 2, 390 Mich 166 (1973)
(opinion issued on October 17, 1973, regarding statutes that took effect
on March 13, 1973); Advisory Opinion on Constitutionality of 1975 PA
227 (Questions 2-10), 396 Mich 465 (1976) (opinion issued May 21, 1976,
regarding statute that took effect on March 31, 1976); Advisory Opinion
on Constitutionality of 1976 PA 240, 400 Mich 311, explaining 400 Mich
175 (1977) (opinion issued June 10, 1977, explaining order entered May
25, 1977, regarding statute that took effect on March 31, 1977); Advisory
Opinion on Constitutionality of 1975 PA 301, 400 Mich 270 (1977)
(opinion issued June 10, 1977, regarding statute that took effect on
March 31, 1976); Advisory Opinion on Constitutionality of 1976 PA 295,
1976 PA 297, 401 Mich 686 (1977) (opinion issued November 7, 1977,
regarding legislation that took effect on November 15, 1976); Advisory
Opinion on Constitutionality of 1982 PA 47, 418 Mich 49 (1983) (opinion
issued November 23, 1983, regarding legislation that took effect on
September 19, 1982); Advisory Opinion on Constitutionality of 1986 PA
281, 430 Mich 93 (1988) (opinion issued March 22, 1988, regarding
legislation that took effect on February 1, 1987).
 ORDERS IN CASES 903
however, opined that this requirement was unconstitutional. OAG, 1997-
1998, No. 6,930, p 1 (January 29, 1997). Thereafter, it went unenforced. A
decade later, the Legislature adopted 2005 PA 71, which made certain
other changes to MCL 168.523 with an effective date of January 1, 2007.
On February 22, 2006, the House of Representatives asked for an
advisory opinion as to the constitutionality of the original photo ID
requirement. 2006 HR 199. We granted the request for an opinion and
asked Attorney General Michael Cox to arrange for arguing both sides of
the issue. In re Request for Advisory Opinion Regarding Constitutionality
of 2005 PA 71, 474 Mich 1230 (2006). In those submissions, “the opposing
Attorney General claim[ed] that this Court lack[ed] the constitutional
authority to issue an advisory opinion in this case because the request for
the advisory opinion was untimely.” In re 2005 PA 71, 479 Mich at 12. We
characterized the opposing Attorney General’s position as being “that the
effective date of 2005 PA 71 was March 31, 1997, the effective date of 1996
PA 583.” Id. We rejected that argument, because “the effective date of
2005 PA 71 was January 1, 2007.” Id. at 13. It was in that context that we
said that, “[b]ecause the House of Representatives requested an advisory
opinion well before that date, this Court indisputably ha[d] jurisdic-
tion . . . to render an advisory opinion in this matter.” Id. We ultimately
issued an opinion holding 2005 PA 71 to be constitutional on July 18,
2007, well after its January 1, 2007 effective date.
It seems apparent to me that In re 2005 PA 71 does not answer the
question at hand. The issue presented in that case ultimately related to
how to handle amendments to pre-existing statutes; our Constitution
requires that “[t]he section or sections of the act altered or amended
shall be re-enacted and published at length,” Const 1963, art 4, § 25, so
the question was whether, in “re-enact[ing] and publish[ing] [them] at
length” while making an unrelated change, the Legislature could give
itself another opportunity to ask for an advisory opinion. Whether our
resolution of that question was right or wrong,36 we simply did not
grapple with the current question, which is whether advisory opinions
can be issued after the effective date of the legislation. “[A]ll that is
necessary for a decision to be authoritative is to show application of the
judicial mind to the subject.” Detroit v Mich Pub Utilities Comm, 288
Mich 267, 299 (1939). I do not see where “the judicial mind” was
“applied” to this issue in In re 2005 PA 71, and I therefore do not consider
it authoritative. To the extent that it has been our practice to issue
posteffectiveness advisory opinions, I would “refuse to perpetuate the
error” of doing so. Rowland v Washtenaw Co Rd Comm, 477 Mich 197,
219 (2007).

36
While not raised by the dissents in In re 2005 PA 71, it has been
argued that “the advisory opinion was neither proper nor permissible”
because the language being reviewed was not original to 2005 PA 71, but
rather had been enacted and taken effect in 1996. Doubtful and Perilous
Experiment, p 178.
904 505 MICHIGAN REPORTS
III. LOOKING TO THE FUTURE

Although it is my view that this Court lacks jurisdiction to issue an

advisory opinion after the effective date of the legislation being re-
viewed, my position lacks majority support. So long as it is not the law
that this Court cannot issue an advisory opinion under such circum-
stances, I do not anticipate refusing to participate in the future solely on
the basis of my personal view that the Court cannot do so. However,
even if my view of the jurisdictional question is not the law, the
Legislature should be aware that this will inform my judgment about
when it is appropriate for this Court to exercise its discretion to issue an
advisory opinion. Because I do not think we should issue advisory
opinions after the effective date of the legislation being scrutinized, I
believe the Legislature should make every effort to give us a reasonable
amount of time prior to the effective date to issue an opinion.37
The Legislature did not go to such efforts in this matter. The relevant
legislation was passed by the Legislature on December 4, 2018. See 2018
Senate Journal 1956–1957 (No. 74, December 4, 2018). At that time, the
Legislature could have extended the effective date if it wanted to. See
Gale v Oakland Co Bd of Supervisors, 260 Mich 399, 403 (1932)

37
Justice MARKMAN notes, correctly, that my view of our jurisdiction
makes it impossible for “the Legislature to know how much time in
advance of the effective date will be viewed by future members of this
Court as sufficient[.]” Given that advisory opinions are purely discre-
tionary on our part, however, I do not believe this adds meaningful
uncertainty to the Legislature’s deliberations. Under current law, the
Legislature must, as Justice MARKMAN expresses it, “engage in . . .
speculation” as to whether we will issue an opinion, and—had I not
publicized my position—I would have been free to silently allow my view
of our jurisdiction to inform my vote on whether to grant advisory-
opinion requests in the future. I am simply publicizing my reasons for
not issuing an opinion in light of Justice ZAHRA’s forceful discussion of
the importance of the issues at hand. I also question Justice MARKMAN’s
assertion that we have a “(discretionary) constitutional responsibility to
furnish advisory opinions when these have been appropriately re-
quested . . . .” Our advisory-opinion jurisprudence has never expressed
any responsibility to opine, instead emphasizing that “the intent was for
sparing resort to this mechanism” and that advisory opinions are issued
“at the discretion of the Supreme Court.” Request for Advisory Opinion
on 1977 PA 108, 402 Mich at 86. Indeed, when the Governor made a
request for an advisory opinion some six months after we had rejected
the Legislature’s request for an opinion as to the same statute, we had
no compunction about once again rejecting the request, notwithstanding
the even stronger signal that had been sent by our coordinate branches
of government about the desire for an opinion. See Request for Advisory
Opinion on the Constitutionality of 1979 PA 57, 407 Mich 506 (1980).
 ORDERS IN CASES 905
(“[F]requently laws are made effective long after the 90 days provided
for by the Constitution.”); OAG, 1937-1938, p 111, at 112 (October 7,
1937) (“The rule is well settled that where a constitution provides . . .
that all statutes shall go into effect a designated number of days after
the adjournment of the session at which same are passed, the terms of
such a constitution are not violated by a provision of the legislature that
an Act shall take effect at a date subsequent to the specified number of
days.”); Mayer, Effective Date of Michigan Public Acts, 56 Mich St B J
116, 116 (1977) (“In general, a 1976 public act which was not given
immediate effect will take effect on March 31, 1977, unless the act
contains a specified effective date after March 31, 1977. In that case the
act takes effect on that specified date.”).38 It did not. The legislation was
signed into law by the Governor on December 13, 2018, and filed with
the Secretary of State the following day. See 2018 Senate Journal 2376
(No. 81, December 19, 2018). The Legislature could have requested an
advisory opinion at that time. It did not. Instead, it did not request an
advisory opinion from this Court for another 10 weeks, with the House
of Representatives’ request arriving only five weeks before this legisla-
tion’s effective date. Under these circumstances, I would be disinclined
to exercise this Court’s discretion to issue an advisory opinion even if I
felt that we had jurisdiction to do so.39

IV. CONCLUSION

I believe there are several reasons to conclude that we lack jurisdic-

tion to issue an advisory opinion after the legislation being scrutinized
has taken effect. First, I read the constitutional text as making two
suggestions: (1) that the “effective date” deadline of Const 1963, art 3,
§ 8 is a structural element reflecting the expectation that we render

38
See also Price v Hopkin, 13 Mich 318 (1865). The legislation in
Price, 1863 PA 227, was signed into law on March 20, 1863, and was not
given immediate effect by the Legislature but had an effective date of
January 1, 1864. See 1863 House Journal 1215-1216; 1863 Senate
Journal 820-821. Our Constitution at the time contained a similar
requirement that legislation not “take effect or be in force until the
expiration of ninety days from the end of the session at which the same
is passed” in the absence of a 2/3 vote, Const 1850, art 4, § 20, but that
session ended on March 23, meaning that 90 days after the end of the
session was well before January 1, yet we had no objection to the
legislation taking effect on January 1st.
39
This sort of equitable analysis is particularly applicable when it is
the Legislature requesting an advisory opinion, given that it is the
Legislature that could adjust the effective date. Although my view of the
jurisdictional issue would not change, my view of the equities might if it
were the Governor rather than the Legislature making the request for
an advisory opinion, as allowed by Const 1963, art 3, § 8.
906 505 MICHIGAN REPORTS
advice to the Legislature before legislation takes effect, so that the
Legislature can act on that advice before an injury occurs; and (2) that we
are granted only “the judicial power,” and limiting advisory opinions prior
to the effective date of legislation is the best reconciliation of our ordinary
exercise of judicial power with the implied and limited exception to that
power that is the advisory-opinion process. Second, to the extent that the
Michigan Constitution itself is less than perfectly clear on this, both the
Address to the People and the convention debates show that the advisory-
opinion process was added specifically to address problems akin to the
sales/use-tax problem confronted in Lockwood, such that the Legislature
could fix an unconstitutional law before it took effect to avoid implement-
ing an unconstitutional law and ringing a bell that cannot be unrung.
Third, the Address to the People squarely informed the voters who
ratified the Michigan Constitution of 1963 that Const 1963, art 3, § 8
conferred on us the power to review the constitutionality of legislative
acts, but “only . . . before they become effective.”40
I would, moreover, note that the laws at issue here are very similar to
the sort scrutinized in Lockwood—untold numbers of hours have been
worked in Michigan since these laws took effect on March 29, just as
untold numbers of sales occurred with the unconstitutional sales tax
applied to them. An advisory opinion at this point might introduce more
confusion, not less, precisely because—were the laws held
unconstitutional—the effect of such a pronouncement would be highly
uncertain. At least as to those hours worked prior to our opinion, there
would be nothing the Legislature could do to fix the constitutional defect;
yet “our conclusions could not be made effective by final judgment, decree,
and process” in the absence of a discrete injury suffered by actual parties.
In such a circumstance, where our advice cannot be heeded but we have
no actual solution we can provide in the form of a court order or judgment,
I conclude that we lack jurisdiction to act—regardless of whether the
amount of time that has passed is 1 day, or 100 days. Therefore, I concur
in the Court’s order denying the request for an opinion.41

40
Justice MARKMAN asserts that “historical context is not invariably
relevant, much less dispositive” when “interpreting a constitutional
provision . . . .” I agree, both in general and in this matter. To the extent
that his remark is meant to suggest that I do believe it is dispositive
here, that is incorrect—as noted, I think the best reading of the
constitutional text alone supports my view, but I am even more confident
in light of the historical context and constitutional convention materials.
41
Justice MARKMAN decries the time this Court has taken in resolving
this matter and alleges that, “had the public ever anticipated a delay of
this length in responding to the requests for an advisory opinion, a
private party would surely have already challenged these amendments
in pursuit of a traditional ‘case or controversy.’ ” Because “the public”
does not speak with one voice, it is not clear to me how the pendency of
this request for an advisory opinion has interfered with anyone filing
such a suit should they so desire. In any event, I disagree that there has
 ORDERS IN CASES 907
MCCORMACK, C.J., joins the statement of CLEMENT, J.
CAVANAGH, J. (concurring). I concur in the order denying the Legisla-
ture’s request for an advisory opinion. Although granted the constitu-
tional authority to do so, this Court rarely exercises its discretion to
issue an advisory opinion. I believe that the most compelling reason for
this is that advisory opinions are a departure from this Court’s tradi-
tional role. They are neither decisions of this Court nor binding
authority on this Court or on any other branch of government. Advisory
Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 460-461 n 1
(1973). “Requests for advisory opinions are an extraordinary exception
to the typical process that brings cases to this Court. Absent are parties
who have an actual stake in the outcome and a record fully developed in
our lower courts.” In re 2002 PA 48 (House of Representatives’ Request for
an Advisory Opinion), 467 Mich 1203, 1203 (2002).
I find Justice CLEMENT’s view of this Court’s jurisdiction compelling,
and I believe the textual clues and history Justice CLEMENT discusses

been an unreasonable delay. Our policy is that “[r]equests for advisory

opinions receive expedited review by the Court given their time sensitive
nature.” MSC IOP 7.308(B)(3). Consistent with this policy, this matter
was argued only five months after the request was made, at a special July
session of this Court—not a month in which we ordinarily hear argument
—rather than waiting until the next regular session of the Court in
October, see MCR 7.301(B), and will be disposed of in less than a year.
This is obviously far less time than we take on our ordinary discretionary
docket, and it is less time than we took in In re 2005 PA 71, in which the
advisory opinion was issued nearly 15 months after the request was made
and eight months after it was argued. It is true that we took a little less
than six months to issue an advisory opinion in In re Request for Advisory
Opinion Regarding Constitutionality of 2011 PA 38, 490 Mich 295 (2011)
—apparently because that opinion was expedited so that it could be
issued before the statute’s effective date. Justice MARKMAN distinguishes
this situation from In re 2005 PA 71 because there we issued an opinion,
while here we did not. While true, I would note that within 40 days of
receiving this request we had ordered that it be briefed and argued, which
left the matter pending idly for less time than in In re Request for
Advisory Opinion Regarding Constitutionality of 2016 PA 249, 500 Mich
875 (2016) (84 days); In re Request for Advisory Opinion Regarding
Constitutionality of 2012 PA 348 and 2014 PA 349, 494 Mich 876 (2013)
(158 days); In re Request for Advisory Opinion Regarding Constitutional-
ity of 2002 PA 678, 468 Mich 1213 (2003) (46 days); In re 2002 PA 48
(House of Representatives’ Request for an Advisory Opinion), 467 Mich
1203 (2002) (152 days); or Request for Advisory Opinion on Constitution-
ality of 1989 PA 117, 435 Mich 1243 (121 days). I trust he would prefer
that we heard this matter than not, and with the delays that are a natural
consequence of the heightened scrutiny that argued matters receive, I
believe the Court is acting with appropriate urgency.
908 505 MICHIGAN REPORTS
counsel against exercising any discretion we have to issue an advisory
opinion under the circumstances presented here. The Legislature’s
requests for an advisory opinion as to the constitutionality of 2018 PA
368 and 2018 PA 369 were made before the laws’ effective date but not,
I believe, sufficiently in advance of the effective date to allow this Court
a meaningful opportunity to carefully consider and decide the complex
constitutional issues raised. Had the Legislature specified a later
effective date for the laws, rather than allowing the laws to take effect
sine die, it could have afforded the Court sufficient time to issue a
decision prior to the effective date.1 In fact, the requests could have been
made as soon as the laws were enacted.2 When the Senate and the
House of Representatives requested an advisory opinion on February 20
and 21, 2019, respectively, this Court had just over one month to decide
the complex constitutional question of whether the Court could and
should exercise its discretion under Const 1963, art 3, § 8 and, if so,
whether the “adopt-and-amend procedure” used by the Legislature was
permissible under Const 1963, art 2, § 9.3 Regardless of this Court’s
jurisdiction to issue an advisory opinion after the effective date of these
acts, it is clear that the practical value to Michigan’s citizens of such an
opinion is much greater if it is issued before the laws become effective.
I believe the diminished practical value of an opinion now cautions
against exercise of the Court’s discretion to issue an opinion.
I respectfully disagree with Justice ZAHRA that, absent this Court’s
rendering an advisory opinion in the manner and form presented by this
case, the State’s economy will suffer unique uncertainty and employers
will face a quandary about whether to follow the statutes as amended or
to follow the preamendment version of the laws. While there is clearly
much to debate about which version of the statutes should be the law,
there is no genuine confusion about which version of the statutes is the
law today. Michigan’s citizens follow the law. And they will, undoubtedly,

1
2018 PA 368 and 2018 PA 369 were signed into law on December 13,
2018. Because the Legislature did not establish a specific effective date
for the laws, both took effect on the 91st day after the 99th Legislature
adjourned sine die. See Frey v Dep’t of Mgt & Budget, 429 Mich 315, 340
(1987). Accordingly, the effective date of the laws was March 29, 2019.
2
The 100th Legislature convened on January 9, 2019. On February 20,
2019, the House of Representatives adopted a resolution requesting an
advisory opinion. The Senate adopted a similar resolution the following
day. Those resolutions requesting an advisory opinion on the constitu-
tionality of 2018 PA 368 and 2018 PA 369 were not filed with this Court
until February 22, 2019, and March 1, 2019, respectively.
3
The complexity of the issues involved is evidenced by the more than
20 briefs that were filed for consideration by this Court. Indeed, the
question of whether this Court possessed jurisdiction under Const 1963,
art 3, § 8 was not addressed by the parties until it was raised by this
Court in its July 5, 2019 order.
 ORDERS IN CASES 909
continue to follow the existing laws unless and until those laws are held
to be unconstitutional by order of this Court in an actual case or
controversy. An advisory opinion from this Court—whether issued today
or before March 29, 2019—could not effect any real remedy to any citizen,
be they employee or employer, actually injured by the contested laws.4
Finally, given that the Legislature’s use of the adopt-and-amend
procedure is argued to be both controversial and political, I do not find
it surprising that the request for an advisory opinion is supported by
members of both political parties and by proponents and opponents of
the initiatives. In my view, “the current divisive political climate in
which we find our state and nation” referred to in Justice ZAHRA’s dissent
further cautions against, rather than in favor of, this Court entering
into the fray absent an actual case or controversy.
I concur in the Court’s order denying the Legislature’s requests.
BERNSTEIN, J., joins the statement of CAVANAGH, J.
MARKMAN, J. (dissenting). Both the Michigan House of Representa-
tives and the Michigan Senate have requested this Court’s guidance
concerning the constitutionality of 2018 PA 368, which amended the
Improved Workforce Opportunity Wage Act, and 2018 PA 369, which
amended the Earned Sick Time Act. Specifically, they have each re-
quested that we issue an opinion addressing whether Const 1963, art 2,
§ 9 permits the Legislature to enact an initiative petition into law and
then amend that law during the same legislative session. This is without
a doubt an “important question[] of law” and one presented on a “solemn
occasion[].” Const 1963, art 3, § 8. And the House and Senate made their
requests “after [the legislation] ha[d] been enacted into law but before
its effective date.” Id.; see also In re Request for Advisory Opinion
Regarding Constitutionality of 2005 PA 71, 479 Mich 1, 13 (2007)
(“Because the House of Representatives requested an advisory opinion
well before [the effective] date, this Court indisputably has jurisdiction
under art 3, § 8 to render an advisory opinion in this matter.”). Thus,
this Court possesses the authority—and, in my judgment, the reason-
able obligation—to answer the question before it. Not only should we
answer the question as a matter of comity to the Legislature, but also
because it presents a matter of substantial importance to the people of

4
I respectfully disagree with Justice MARKMAN that uncertainty over
“which version of [these statutes] is going to be the law tomorrow” is a
compelling reason for this Court to issue an advisory opinion in this
matter. The constitutionality of almost every law is unsettled until this
Court opines on the issue, and that uncertainty is actually part of how
the law should develop. When this Court does opine on the constitution-
ality of a particular law, it does so in a case on review from lower courts,
with a fully developed factual record and actual litigants who have
suffered actual harm and for whom an actual remedy can be provided.
While there may be some circumstances in which an advisory opinion is
warranted despite the absence of an actual case or controversy, I do not
believe those circumstances are presented here.
910 505 MICHIGAN REPORTS
this state, occasioning in particular considerable uncertainty and con-
fusion among large numbers of employers and employees of the state.1

1
Justice CAVANAGH questions whether there is any genuine confusion
and uncertainty concerning the state of the law. While she may conceiv-
ably be correct that “there is no genuine confusion about which version of
the statutes is the law today,” there is certainly confusion and uncertainty
regarding which version is going to be the law tomorrow. Moreover, the
people of this state, and their elected representatives, have a legitimate
interest in knowing, and a right to know, which version of the statutes is
going to be the law tomorrow; this Court could usefully have provided
such guidance; and we have specifically been asked by a wide variety of
organizations, including both houses of the Legislature, to afford this
guidance. And yet we have chosen to withhold such guidance. Justice
CAVANAGH asserts that uncertainty over which version of these statutes is
going to be the law tomorrow is not a compelling reason for this Court to
issue an advisory opinion because “[t]he constitutionality of almost every
law is unsettled until this Court opines on the issue . . . .” I disagree. Laws
are presumed to be constitutional. People v Skinner, 502 Mich 89, 111
(2018). They are not, as Justice CAVANAGH asserts, “unsettled” until they
receive this Court’s blessing. This case is distinctive because there are two
versions of each of the statutes at issue; there are conflicting Attorney
General opinions regarding the constitutionality of the adopt-and-amend
procedure utilized by the Legislature in enacting these laws; and the
Legislature has requested this Court to decide which of these two
Attorney General opinions is correct, a request that has been supported
by numerous different organizations. Justice CAVANAGH contends that
“[w]hen this Court does opine on the constitutionality of a particular law,
it does so in a case on review from lower courts, with a fully developed
factual record and actual litigants who have suffered actual harm and for
whom an actual remedy can be provided.” However, the ratifiers of the
1963 Constitution have provided for an additional avenue of relief when
there are “important questions of law upon solemn occasions as to the
constitutionality of legislation,” Const 1963, art 3, § 8—an advisory
opinion—and Justice CAVANAGH has not explained why this is not just
such an occasion.
Justice CAVANAGH also asserts that an advisory opinion issued after
the effective date has a “diminished practical value” compared to one
issued before the effective date. Even assuming this to be true, a
post-effective-date advisory opinion would nonetheless have consider-
ably greater “practical value” than an opinion months or even years
further down the road, which is the practical alternative. Perhaps even
more to the point, the Legislature and the amici are as aware as any
member of this Court that an advisory opinion almost certainly could
not have been rendered before the effective date and yet nonetheless
 ORDERS IN CASES 911
While I respectfully differ with the Court in its decision not to issue
the requested advisory opinion, I find far more troubling the Court’s utter
lack of urgency in communicating a response to the Legislature and to the
people. It has now been 300 days since the request for an advisory opinion
was first made to this Court and 155 days since oral arguments were
heard.2 Each day that passes, the confusion and uncertainty persist and,
should the Court at some later juncture eventually determine the laws
in question to be unconstitutional, the question of a remedy will have
become increasingly more difficult. Moreover, had the public ever
anticipated a delay of this length in responding to the requests for an
advisory opinion, a private party would surely have already challenged
these amendments in pursuit of a traditional “case or controversy.” So,
rather than expediting an answer to a question that can only be
answered by this Court—which is the very purpose of an advisory
opinion—this Court has needlessly delayed providing an answer, thus
both paralyzing the legal process and confounding employers and
employees in search of the guidance that might have been afforded

they each sought an advisory opinion and presumably believed, contrary

to Justice CAVANAGH, that such an opinion would still have “practical
value.” She further asserts in justification of her position that the sheer
volume of briefs filed on behalf of the requests for an advisory opinion
evidences the “complexity” of the issues involved and for that reason
argues against an opinion. Respectfully, I believe that the volume of
filings far better evidences the breadth of the perspective that there would
have been considerable “practical value” to even a post-effective-date
advisory opinion from this Court.
Justice CLEMENT indicates that an advisory opinion at this point may
“introduce more confusion, not less, precisely because—were the laws
held unconstitutional—the effect of such a pronouncement would be
highly uncertain.” All quite interesting, but to repeat, the Legislature has
affirmatively sought our guidance on the constitutionality of two legisla-
tive acts. By that action, the Legislature was presumably of the view that
this Court could have clarified matters rather than generated “confusion,”
and that it was likely to have accepted our ultimate guidance. Indeed, I
am unaware of any occasion on which this Court has issued an advisory
opinion concluding that legislation was unconstitutional in which the
Legislature has not taken that guidance and promptly remedied the
problem.
2
Justice CLEMENT states that we have resolved this matter in “less
time than we took in In re 2005 PA 71, in which the advisory opinion was
issued nearly 15 months after the request was made and eight months
after it was argued.” Perhaps, however, a relevant distinction between
the two matters is that in In re 2005 PA 71, we granted the request for
an advisory opinion and actually answered the question presented in a
104-page opinion. Here, it has taken the Court well over nine months to
deny the Legislature’s request.
912 505 MICHIGAN REPORTS
them.3 Because I would have answered the issue presented, and would
have done so in a reasonably timely manner, I dissent.

RESPONSE TO CONCURRENCES

Justice CLEMENT has written a highly thoughtful concurrence in

which she concludes that this Court lacks the authority to issue an
advisory opinion after the effective date of the legislation at issue. And
Justice CAVANAGH has written a separate concurrence in which she
indicates that she finds Justice CLEMENT’s view “compelling.” Although
Justice CAVANAGH does not indicate whether she ultimately agrees with
Justice CLEMENT’s conclusion, she does indicate that she believes that
the “textual clues and history Justice CLEMENT discusses counsel against
exercising any discretion we have to issue an advisory opinion under the
circumstances presented here.” I respectfully disagree with both Justice
CLEMENT and Justice CAVANAGH.

A. TEXT AND PRECEDENT

Most importantly, I disagree because the language of Const 1963, art

3, § 8 does not contain the time limitation asserted by Justice CLEMENT.
Instead, the only time limitation contained in this provision is that the
Legislature must undertake its request for an advisory opinion “after
[the legislation at issue] has been enacted into law but before its
effective date.” Article 3, § 8 does not contain any time limitation as to
this Court’s authority to issue an advisory opinion in response to a
timely received request. As we have explained, “it is to the words of the
statute itself that a citizen first looks for guidance in directing his
actions.” Robinson v Detroit, 462 Mich 439, 467 (2000). Similarly, it is to
the words of the constitution that the Legislature first looks for guidance
in directing its actions. “This is the essence of the rule of law: to know in
advance what the rules of society are.” Id. “Thus, if the words of the
[law] are clear, the actor should be able to expect . . . that [these] will be
carried out by all in society, including the courts.” Id. The Legislature
has presumably looked to the words of Const 1963, art 3, § 8 and
recognized that this provision requires only that the Legislature under-
take its request for an advisory opinion after the enactment of the

3
Justice CLEMENT contends that the “advisory-opinion process was not
intended to provide an expeditious answer,” but instead “to enable review
of a statute before any injury has been suffered.” Providing an answer
“before any injury has been suffered,” i.e., before the effective date of the
legislation, would indeed also have provided an “expeditious answer.”
Accordingly, we agree that the purpose of an advisory opinion is to provide
an “expeditious answer.” She, however, believes that the purpose is a
considerably narrower one than do I, to provide a singular kind of
“expeditious answer”—one occurring prior to the effective date of the
legislation.
 ORDERS IN CASES 913
legislation, but before its effective date, and the Legislature—altogether
reasonably—has relied upon this clear and unambiguous language in
reaching the conclusion that this was the only applicable time restric-
tion. In other words, it looked to the constitutional charter of this state
and acted in a manner that was faithful to that charter. Now, two
members of this Court are instructing the Legislature that, unfortu-
nately, there is an additional and applicable time restriction—one found
nowhere within the language of Const 1963, art 3, § 8 or anywhere else
within our Constitution.4

4
Justice CLEMENT contends that we should not be concerned that her
new time restriction is found nowhere within our state’s Constitution
because, although “[t]he word ‘moot’ [also] does not appear anywhere in
the Constitution,” we nevertheless dismiss actions on the grounds of
mootness. Comparing her newly devised time restriction concerning
advisory opinions with longstanding understandings of mootness (and
equally, if she had chosen to do so, with similar judicial doctrines such as
standing, ripeness, and justiciability) is comparing apples to oranges. As
Justice CLEMENT herself acknowledges, her new time limitation “lacks
majority support” and thus is not “established,” let alone “well estab-
lished,” legal doctrine. Yet “[i]t is well established that a court will not
decide moot issues.” People v Richmond, 486 Mich 29, 34 (2010) (empha-
sis added). Indeed, this Court has adhered to this principle of law for more
than a century. See, e.g., Street R Co of E Saginaw v Wildman, 58 Mich
286 (1885). The principle that this Court will not decide moot issues is
derived from the constitutional requirement that the judiciary is to
exercise the “judicial power,” Const 1963, art 6, § 1, and only the “judicial
power,” Const 1963, art 3, § 2. This power has long been defined as “the
right to determine actual controversies arising between adverse liti-
gants,” Anway v Grand Rapids R Co, 211 Mich 592, 616 (1920) (quotation
marks and citation omitted), which is why the ratifiers of the 1963
Constitution were obligated to add art 3, § 8 in order to invest this Court
with the authority to issue advisory opinions—an authority not otherwise
encompassed within the “judicial power.” When there is no longer an
actual and pending controversy between the parties, the matter at issue
has become moot, and deciding a moot issue “is not an exercise of judicial
power.” Id. at 615 (quotation marks and citation omitted). In other words,
although the word “moot” may not appear anywhere in the Constitution,
the term “judicial power” does appear, and it is well established that this
term encompasses the principle that this Court will not decide moot
issues. On the other hand, nowhere in the Constitution does it say that
this Court cannot issue an advisory opinion after the effective date of
legislation, and it is hardly “established,” let alone “well established,” that
language requiring the Legislature to request an advisory opinion before
the effective date of the legislation somehow encompasses the principle
that this Court cannot issue an advisory opinion after the effective date of
the legislation.
914 505 MICHIGAN REPORTS
Not only is this additional time restriction absent from the language
of the Constitution, but it is also absent from our state’s constitutional

Furthermore, there are no grounds for Justice CLEMENT’s assertion

that I am somehow “fault[ing]” her legal argument “for its novelty.”
“Novel” arguments, as with any other, should be assessed on the basis of
their merits, and that is what I do here in suggesting that her
analogizing of her arguments in this case to those made in support of the
doctrine of mootness are entirely misplaced.
Nor is Justice CLEMENT’s newly devised rule even a reasonably logical
implication of the language of art 3, § 8. That is, just because the
ratifiers of the 1963 Constitution imposed a requirement on the Legis-
lature to request an advisory opinion prior to the effective date of the
legislation does not suggest in any way that the ratifiers also intended
to impose a requirement on this Court to issue an advisory opinion prior
to the effective date of legislation. Justice CLEMENT asks why the ratifiers
would conceivably have chosen to impose this requirement on the
Legislature, but not this Court. Although there is no obligation on the
part of this Court either to raise or to answer this question, the answer
nonetheless is quite simple—it is far more difficult for this Court to issue
an advisory opinion prior to the effective date of legislation than it is for
the Legislature merely to request such an opinion. They also presum-
ably trusted that this Court would act in a timely fashion with regard to
such requests and thus did not believe that it was necessary to impose
a time limitation upon this Court.
Justice CLEMENT “struggle[s] to see the logic of accepting that all of
the other requirements of the advisory-opinion process apply to both the
Legislature and this Court, but that [the timing] requirement, uniquely,
applies only to the Legislature.” However, again she is comparing apples
to oranges. All of these “other requirements”—that the request for an
advisory opinion relate to an “important question of law,” that it be
submitted upon a “solemn occasion,” and that it concern “the constitu-
tionality of legislation”—pertain to the substance of the question asked,
and each requirement is obviously unaffected in any way by whether the
question is being presented by the Legislature or being received by this
Court; after all, it is exactly the same question that is at issue in either
instance. By contrast, the timing requirement, unlike each of the “other
requirements,” is a wholly procedural requirement, and there is no
particular reason why the same timing requirement should apply to the
presenting and the receiving public bodies. That is, while it is perfectly
logical to imply from the explicit requirement of the Constitution that
the Legislature’s request must pertain to “important questions of law
upon solemn occasions as to the constitutionality of legislation” that this
Court’s responsive opinion must also pertain to “important questions of
law upon solemn occasions as to the constitutionality of legislation,” it is
 ORDERS IN CASES 915
practice because this Court has on numerous occasions issued advisory
opinions after the effective date of the legislation at issue. See, e.g., In re
Request for Advisory Opinion Regarding 2005 PA 71, 479 Mich 1;
Advisory Opinion on Constitutionality of 1986 PA 281, 430 Mich 93
(1988); Advisory Opinion on Constitutionality of 1975 PA 301, 400 Mich
270 (1977); Advisory Opinion re Constitutionality of PA 1966, No 346,
380 Mich 554 (1968); Advisory Opinion re Constitutionality of PA 1966,
No 261, 379 Mich 55 (1967), rev’d on other grounds 380 Mich 736
(1968).5 Indeed, in In re Request for Advisory Opinion Regarding 2005
PA 71, 479 Mich at 13, this Court stated explicitly, “Because the House

not equally logical to imply from the explicit requirement that the
“Legislature” must request an advisory opinion before the effective date
of the legislation that this Court must also issue its advisory opinion
before the same date. In short, it is entirely logical—indeed self-evident
—that the same substantive characterizations and preconditions would
be applicable to the question whether the process is in the hands of the
Legislature or the Court; however, no similar logic would apply to the
procedural requirement here in dispute, for the Legislature and this
Court stand in considerably different circumstances, not only on the
basis of the constitutional text but also on the basis of the practical
obligations imposed upon each by the Constitution.
5
Justice CLEMENT asserts that this Court has made statements in
dicta in two cases—Request for Advisory Opinion on Constitutionality of
1975 PA 227, 395 Mich 148, 149 (1975), and Wayne Co v Hathcock, 471
Mich 445, 485 n 98 (2004)—and that I have made a statement in a
concurring opinion, Woodman v Kera LLC, 486 Mich 228, 264 n 2 (2010),
each of which may be read to suggest that an opinion from this Court
must be issued before the effective date of legislation. While, in my
judgment, these statements are somewhat less clear than she asserts,
they are nonetheless sufficiently imprecise to render them susceptible to
Justice CLEMENT’s characterization, as they fail carefully to distinguish
between the Legislature’s request for an advisory opinion and this
Court’s response thereto by failing to incorporate fully within their
excerpted constitutional language surrounding words necessary to a
complete and contextual understanding of their meaning. However,
none of these statements can be understood as anything but dictum
because none of these cases pertained in any way to our authority to
issue an advisory opinion after the effective date. Moreover, two of the
three did not pertain to any aspect of procedure concerning advisory
opinions or even to a request for an advisory opinion, and thus did not
contain a single word of analysis concerning Const 1963, art 3, § 8.
Perhaps most significantly, by the time these statements were issued,
this Court had already, and without objection from any justice, exercised
its authority on numerous occasions to issue advisory opinions after the
effective date of the legislation.
916 505 MICHIGAN REPORTS
of Representatives requested an advisory opinion well before [the
effective] date, this Court indisputably has jurisdiction under art 3, § 8
to render an advisory opinion in this matter.” Even in the present case,
in which this Court has received numerous amicus briefs, nobody has
argued that this Court lacked the authority to issue an advisory opinion
after the effective date until we raised the issue on our own and
mandated supplemental briefing by the Attorney General on both sides
of the issue. Thus, despite this additional time restriction being located
nowhere within the Constitution and being altogether inconsistent with
this Court’s own prior practices, some members of this Court are
denying the present request for an advisory opinion on the grounds that
it does not satisfy this limitation.
The Legislature obviously could not have foreseen the imposition of
this new restriction when it proffered the request at issue here, and
future Legislatures will now have an equally difficult time determining
when exactly their requests must be proffered because all we are told by
the concurring justices is that these must be made sufficiently in
advance of the effective date to allow this Court an opportunity to
consider and decide the constitutional issues raised, and to issue an
opinion before the effective date. How is the Legislature to know how
much time in advance of the effective date will be viewed by future
members of this Court as sufficient? Because nothing in the actual text
of the Constitution requires the Legislature to engage in such specula-
tion, I would not impose this or any other additional obligation upon the
Legislature. Again, the only time restriction found within Const 1963,
art 3, § 8 is that the Legislature must make its request “after [the
legislation] has been enacted into law but before its effective date.” That
Const 1963, art 3, § 8 contains this restriction and no other is itself
meaningful because “the express mention . . . of one thing implies the
exclusion of other similar things,” Bradley v Saranac Community Schs
Bd of Ed, 455 Mich 285, 298 (1997), mod on other grounds by Mich Fed
of Teachers v Univ of Mich, 481 Mich 657 (2008), and “[w]e cannot read
into the [Constitution] what is not there,” AFSCME v Detroit, 468 Mich
388, 412 (2003).

B. PURPOSE

Justice CLEMENT concludes that the “purpose sought to be accom-

plished” by Const 1963, art 3, § 8 is “to enable review of a statute before
any injury has been suffered,” i.e., before the effective date of the
statute. She explains at length her belief that the provision was “added
in response” to Lockwood v Comm’r of Revenue, 357 Mich 517, 545
(1959), an opinion of this Court that held that the 1959 use-tax
amendment represented an unconstitutional effort to evade the consti-
tutional sales-tax limit after several millions of dollars of tax revenue
had been unconstitutionally collected. While I do not question this
historical context, or indeed that historical context may be relevant in
interpreting a constitutional provision, such context is not invariably
relevant, much less dispositive, in particular where such context is
inconsistent with the constitutional text. That is, while this context
 ORDERS IN CASES 917
might well suggest that a “purpose” of Const 1963, art 3, § 8 was to
enable this Court to issue an advisory opinion before the effective date
of legislation, i.e., “to enable review of a statute before any injury has
been suffered” or, even more specifically, “to prevent the collection of
unconstitutional taxes in the first place,” this is not the equivalent of
signifying that such is the exclusive “purpose” to be served. Indeed,
“ ‘ “the [constitutional] remedy often extends beyond the particular act
or mischief which first suggested the necessity of the law.” ’ ” Dist of
Columbia v Heller, 554 US 570, 578 (2008) (citations omitted); see also
id. at 599 (noting that although the purpose of the Second Amendment
was “to prevent elimination of the [state] militia,” it also by its terms
protects the right to possess a firearm “as an individual right uncon-
nected with militia service,” id. at 582). Thus, even assuming that
Justice CLEMENT is correct in her historical recitation that the “purpose”
of Const 1963, art 3, § 8 was “to prevent the collection of unconstitu-
tional taxes in the first place” by allowing this Court to issue an advisory
opinion before the effective date of the legislation, that does not mean
that this must be its only “purpose” or, even more significantly, that such
historical context can be allowed to take priority over the straightfor-
ward and unambiguous language of Const 1963, art 3, § 8. Rather, it is
quite possible that a constitutional provision may have multiple “pur-
poses,” and extraconstitutional sources of “history” are considerably
more likely to identify “purposes” additional to those set forth by
constitutional text than, as Justice CLEMENT suggests, to subtract from
the “purposes” that appear clearly from constitutional text.
Furthermore, even assuming that Justice CLEMENT is correct that the
purpose of this provision was to enable this Court to issue an advisory
opinion before the effective date of legislation, allowing it to also issue
an advisory opinion after the effective date of legislation is in no way
incompatible with her discerned purpose. Before the adoption of Const
1963, art 3, § 8, this Court only possessed the “judicial power” to render
an opinion in an actual case or controversy after the effective date of the
legislation being challenged. The ratifiers of the 1963 Constitution
decided to broaden this Court’s, and this state’s, “judicial power” to also
encompass the authority to issue advisory opinions in certain circum-
stances in which the Legislature has requested an opinion in advance of
the effective date of the legislation.6 Reading Const 1963, art 3, § 8 as
allowing this Court to issue an advisory opinion after the effective date
of the legislation in circumstances in which the Legislature requested
such an opinion before the effective date of the legislation does nothing
to undermine this Court’s undeniable authority to issue an advisory
opinion before the effective date of the legislation. In other words, even
assuming that the “purpose” of Const 1963, art 3, § 8 was to allow this
Court to issue advisory opinions before the effective date of legislation,

6
While Justice CLEMENT describes Const 1963, art 3, § 8 as creating a
“limited exception to our ordinary exercise of the ‘judicial power’ ”
(emphasis added), I would describe it instead as expanding this state’s
conception of its own “judicial power.”
918 505 MICHIGAN REPORTS
this does not signify in any way that Const 1963, art 3, § 8 does not also
allow the Court to issue advisory opinions after the effective date. And
as discussed earlier, because the only time limitation contained in the
actual text of Const 1963, art 3, § 8 is that the Legislature must make its
request “after [the legislation] has been enacted into law but before its
effective date,” that is the only time limitation I would impose. And it is
the only time limitation that has ever been imposed by this Court under
Const 1963, art 3, § 8.

C. ADDRESS TO THE PEOPLE

Next, Justice CLEMENT relies upon the Address to the People to

support her conclusion that “advisory opinions after the effective date of
legislation are impermissible.” In particular, the Address to the People
states that Const 1963, art 3, § 8 “empowers the supreme court to
furnish advisory opinions . . . but only as to legislative acts that are
already passed and signed by the governor, and before they become
effective.” 2 Official Record, Constitutional Convention 1961, p 3368.
Although the Address to the People may well be “relevant to under-
standing the ratifiers’ intent,” Mich Coalition of State Employee Unions
v Michigan, 498 Mich 312, 324 (2015), it is “not controlling,” and “it
cannot be used to contradict . . . the constitutional text.” Citizens Pro-
tecting Michigan’s Constitution v Secretary of State, 503 Mich 42, 61 &
n 26 (2018). Just as even “a prefatory clause does not limit or expand the
scope of the operative clause,” Heller, 554 US at 578, the Address to the
People hardly can limit or expand the scope of the constitutional text. To
emphasize, I view the Address as a highly relevant historical consider-
ation, particularly where there is textual unclarity or ambiguity, but it
is not so highly relevant that it can countermand the actual language of
the Constitution, the text of which is even more highly relevant, and
indeed in almost all instances is dispositive of the Constitution’s
meaning.7
Const 1963, art 3, § 8 provides that the Legislature may request an
advisory opinion “after [the legislation] has been enacted into law but
before its effective date.” Pursuant to this language, the Legislature can
request an advisory opinion the day before the effective date of the

7
And contrary to how Justice CLEMENT apparently reads Const 1963,
art 3, § 8, the silence of this provision concerning an ending date beyond
which this Court cannot issue an advisory opinion, i.e., the effective date
of the underlying legislation, does not give rise to an ambiguity. Rather,
Const 1963, art 3, § 8 is quite clear, and unambiguous, that a legislative
enactment’s effective date is relevant only as to the Legislature’s request
for an opinion and that this Court is not constrained in any way by that
date as an ending time for the issuance of an opinion. This is made clear
both by the silence of Const 1963, art 3, § 8 in this regard, as well as by
implications that can be reasonably and logically drawn from the
provision’s nonsilence as to other dates that Const 1963, art 3, § 8 has
made relevant in the advisory-opinion process.
 ORDERS IN CASES 919
legislation. However, according to the concurring justices, the Legisla-
ture could not request an advisory opinion at that time because that
would not be sufficiently in advance of the effective date to allow this
Court an opportunity to consider and decide the constitutional issues
raised and to issue an opinion before the effective date. Because the
actual language of the Constitution allows the Legislature to request an
advisory opinion up to the effective date of the legislation, we are obliged
to interpret it in a consonant manner. If instead we interpret Const
1963, art 3, § 8, as does Justice CLEMENT, as prohibiting this Court from
issuing an advisory opinion after the effective date of the legislation, the
Legislature would also be deprived of its authority to request an
advisory opinion up to the effective date of the legislation because a
request made too closely in time would be inadequate to comply with the
newly discerned requirements of Const 1963, art 3, § 8. That is, even the
limited “purpose” ascribed to Const 1963, art 3, § 8 by Justice CLEMENT
understates the extent to which her understanding would curtail the
effective ability of the Legislature or the Governor to seek an advisory
opinion, by imposing upon each an obligation to engage in speculation
and guesswork as to how long in advance of the effective date a request
for an advisory opinion must be made and then to suffer the prospect
that delays on the part of the Court itself might undo any such
calculation. I will abide instead by the advisory-opinion process, and its
certainties, as set forth by Const 1963, art 3, § 8. The language in the
Address to the People describing this provision as only allowing this
Court to furnish advisory opinions before the effective date is simply
inconsistent with its actual language, which accords the Legislature the
authority to request an advisory opinion up to the effective date of the
legislation. Because the language in the Address to the People is not
controlling, and because the language of Const 1963, art 3, § 8 is
controlling, I would preserve and maintain the latter.

D. DELAYS

Finally, Justice CLEMENT’s interpretation of Const 1963, art 3, § 8

would enable delays—of the very sort that have occurred in the instant
case on the part of the Court itself—to nullify this Court’s authority to
affirmatively respond to requests for advisory opinions. That is, her
understanding would enable the Court to avoid its (discretionary)
constitutional responsibility to furnish advisory opinions when these
have been appropriately requested by the Governor or the Legislature
by simply doing nothing at all rather than by acting in an accountable
manner and in comity with the legislative and executive branches,
either to grant or to deny the request. Such delays, as I have already
remarked, are particularly troubling in the context of Const 1963, art 3,
§ 8 because every day delayed in affording the Governor or the Legis-
lature an answer—affirmative or negative—is one more day denied
interested parties in pursuing an actual case or controversy.
For the reasons set forth in both Justice ZAHRA’s dissenting state-
ment and this dissenting statement, I would have affirmatively an-
swered the instant request for an advisory opinion, and I would have
done so in a far timelier manner. Thus, I respectfully dissent.
920 505 MICHIGAN REPORTS
ZAHRA, J., joins the statement of MARKMAN, J.
ZAHRA, J. (dissenting). I respectfully dissent from this Court’s decision
to deny the requests of the Michigan House of Representatives and the
Michigan Senate (collectively, the Legislature) for the issuance of an
opinion on the constitutionality of 2018 PA 368 (which amended the
Improved Workforce Opportunity Wage Act, 2018 PA 337) and 2018 PA
369 (which amended the Earned Sick Time Act, 2018 PA 338). I would
forthwith honor the requests and issue an advisory opinion addressing
the constitutionality of the Legislature’s action with regard to these
public acts.
The Earned Sick Time Act and the Improved Workforce Opportunity
Wage Act were originally proposed as initiative petitions through the
people’s right to exercise direct democracy.1 After the Board of Canvass-
ers certified the initiatives for placement on the ballot and before the
ballots were printed, the Legislature enacted both acts without change.2
Thus, the initiatives were not presented to the people for a vote in the
November 2018 election. On December 13, 2018, the Governor signed
bills that amended both acts. Neither act was given immediate effect.
After the legislation was enacted into law but before its effective date,
both the House and the Senate resolved to request an advisory opinion
pursuant to Const 1963, art 3, § 8. Specifically, we are asked to opine on
the constitutionality of enacting an act proposed by the initiative
process and later amending that act in the same legislative session.
I would grant the Legislature’s request because this is precisely the
sort of important question that Const 1963, art 3, § 8 is intended to
address.3 The question presented is profoundly significant because this
legislation will likely affect in one form or another nearly every
Michigan resident.4 By not addressing the Legislature’s requests, em-

1
Const 1963, art 2, § 9.
2
Id.
3
That provision states:
Either house of the legislature or the governor may request the
opinion of the supreme court on important questions of law upon
solemn occasions as to the constitutionality of legislation after it
has been enacted into law but before its effective date. [Const 1963,
art 3, § 8.]
4
The importance of the question presented is exemplified by the fact
that in the current divisive political climate in which we find our state
and nation, the request for an advisory opinion is supported by members
of both major political parties and by both proponents and opponents of
the initiatives, as well as by proponents and opponents of the changes
made to the initiatives by the Legislature. The entities that have
submitted amicus curiae briefs persuasively assert urgency for an opinion
from this Court, maintaining that genuine confusion exists among
employers regarding which versions of the laws they should follow.
 ORDERS IN CASES 921
ployers will face a quandary about whether to follow the statutes as
amended or the preamendment versions of the laws. This dilemma has
resulted in uncertainty and confusion throughout a significant sector of
Michigan’s economy.
Furthermore, the request for an advisory opinion has been presented
“upon [a] solemn occasion[] as to the constitutionality of legisla-
tion . . . .”5 “[I]f this Court does not issue an opinion now, but at some
later time determines that one or more of the provisions of these laws is
unconstitutional, the question of remedy almost certainly will have
become far more difficult, with far greater potential for unfairness to the
parties.”6
Finally, a response on the Court’s part would reflect the kind of
comity among the branches of state government that underlies both our
Constitution generally as well as Const 1963, art 3, § 8 specifically. In
short, I believe that a response to the advisory-opinion request in the
present circumstance is exactly what is required of the highest court of
our state. Such a response would clarify the validity of two laws in which
confusion and uncertainty otherwise would obtain to the detriment of
innumerable employers and employees across our state. Because the
Legislature’s advisory-opinion request pertains to an “important ques-
tion[] of law,” it has been presented upon a “solemn occasion,”7 and a
response would alleviate the legal uncertainty and confusion Michigan
now faces, I would grant this request and answer the questions
presented in an expedited manner.
MARKMAN and VIVIANO, JJ., join the statement of ZAHRA, J.
VIVIANO, J. (dissenting). For the reasons expressed in Justice ZAHRA’s
dissenting statement, I believe that this Court should issue an advisory
opinion as to the constitutionality of 2018 PA 368 and 2018 PA 369. I
write separately to explain why I believe this Court has discretion to do
so after the effective date of the public acts in question.
The objective of interpreting a constitutional provision “ ‘is to deter-
mine the text’s original meaning to the ratifiers, the people, at the time of
ratification.’ ” People v Tanner, 496 Mich 199, 223 (2014), quoting Wayne
Co v Hathcock, 471 Mich 445, 468 (2004). “The first rule a court should
follow in ascertaining the meaning of words in a constitution is to give
effect to the plain meaning of such words as understood by the people who
adopted it.” Bond v Ann Arbor Sch Dist, 383 Mich 693, 699 (1970). We do
this “by determining the plain meaning of the text as it was understood at
the time of ratification,” Mich Coalition of State Employee Unions v
Michigan, 498 Mich 312, 323 (2015), “unless technical, legal terms are
used,” id. at 323 n 17 (quotation marks and citation omitted). “To help
discover the common understanding, this Court has observed that con-
stitutional convention debates and the address to the people, though not
controlling, are relevant.” Citizens Protecting Michigan’s Constitution v

5
Const 1963, art 3, § 8.
6
In re 2002 PA 48 (House of Representatives’ Request for an Advisory
Opinion), 467 Mich 1203, 1205 (2002) (MARKMAN, J., dissenting).
7
Const 1963, art 3, § 8.
922 505 MICHIGAN REPORTS
Secretary of State, 503 Mich 42, 61 (2018) (“The primary rule is that of
common understanding . . . .”) (quotation marks and citations omitted).
“However, such extrinsic evidence can hardly be used to contradict the
unambiguous language of the constitution.” Nat’l Pride At Work, Inc v
Governor, 481 Mich 56, 80 (2008).
Article 3, § 8 of our Constitution provides that “[e]ither house of the
legislature or the governor may request the opinion of the supreme court
on important questions of law upon solemn occasions as to the consti-
tutionality of legislation after it has been enacted into law but before its
effective date.” As Justice CLEMENT notes, Const 1963, art 3, § 8 “does not
affirmatively grant this Court the power to issue advisory opinions . . . .”
Ante at 888 (CLEMENT, J., concurring). Instead, this Court’s power to
issue advisory opinions is rather obviously implied from the text. The
provision is not a model of clarity, but that does not relieve us of our
obligation to determine its original meaning, i.e., “the meaning the
words and phrases of the [provision] would have had, in context, to
ordinary readers, speakers, and writers of the English language, read-
ing a document of this type, at the time adopted[.]” Kesavan & Paulsen,
The Interpretive Force of the Constitution’s Secret Drafting History, 91
Geo LJ 1113, 1118 (2003).
To determine whether the Court has discretion to issue an advisory
opinion after the effective date of those acts, two phrases from Article 3,
§ 8 must be examined. Both phrases generally relate to when an
advisory opinion may be requested and thus, impliedly, when one may
properly be issued by the Court. The first of these phrases relates to the
circumstances in which an advisory opinion may be requested: “upon
solemn occasions.” This phrase has not been construed by our Court;
however, it has been construed by our sister state courts both before and
after it was adopted in Michigan. Understanding the original meaning
of this phrase is key to a proper understanding of the scope of the Court’s
advisory-opinion power.
At the time of the constitutional convention for Michigan’s 1963
Constitution, the phrase “upon solemn occasions” appeared in the state
constitutions of Massachusetts, Maine, Colorado, New Hampshire, and
South Dakota1—a fact that was not lost on the convention delegates. See

1
See Mass Const, art 85 (“Each branch of the legislature, as well as the
governor or the council, shall have authority to require the opinions of the
justices of the supreme judicial court, upon important questions of law,
and upon solemn occasions.”); NH Const, art 74 (“Each branch of the
legislature as well as the governor and council shall have authority to
require the opinions of the justices of the supreme court upon important
questions of law and upon solemn occasions.”); Me Const, art VI, § 3 (“The
Justices of the Supreme Judicial Court shall be obliged to give their
opinion upon important questions of law, and upon solemn occasions,
when required by the Governor, Senate or House of Representatives.”);
SD Const, art 5, § 5 (“The Governor has authority to require opinions of
the Supreme Court upon important questions of law involved in the
 ORDERS IN CASES 923
1 Official Record, Constitutional Convention 1961, p 1548. When first
introducing the “upon solemn occasions” language, Delegate Marjorie
McGowan explained how she understood its meaning:

By a solemn occasion the constitution means some serious and

unusual urgent need. It has been held to be such urgent need
when either branch of the legislature having some action in view
has serious doubts as to their power and authority to take such
action under the constitution or existing statutes. [Id. at 1543.]
Delegate McGowan noted that this definition was taken from a Massa-
chusetts case interpreting the phrase. Id., citing In re Opinion of the
Justices, 290 Mass 601, 602 (1935) (“These words mean that the opinions
can be required only when ‘such questions of law are necessary to be
determined by the body making the inquiry, in the exercise of the
legislative or executive power entrusted to it by the Constitution and laws
of the Commonwealth.’ ‘By a solemn occasion, the Constitution means
some serious and unusual exigency. It has been held to be such an
exigency when . . . either branch of the Legislature, having some action in
view, has serious doubts as to their power and authority to take such
action, under the Constitution, or under existing statutes.’ ”) (citations
omitted).2
Because the phrase “upon solemn occasions” had acquired a particular
meaning in the law by this time, I believe it is a legal term of art
describing the circumstances in which this Court may properly exercise
its discretion to issue an advisory opinion. See People v Law, 459 Mich
419, 425 n 8 (1999) (“A legal term of art is a technical word or phrase that
has acquired a particular and appropriate meaning in the law.”). And,
while we are not bound by later decisions from other state courts
interpreting the phrase, I believe some of those, too, are instructive. See,
e.g., In re Opinion of the Justices, 815 A2d 791, 794 (Me, 2002) (“The
following guideposts assist our determination on whether a ‘solemn
occasion’ has been presented on an ‘important question[ ] of law.’ First,
the matter must be of ‘live gravity,’ referring to the immediacy and

exercise of his executive power and upon solemn occasions.”); Colo Const,
art VI, § 3 (“The supreme court shall give its opinion upon important
questions upon solemn occasions when required by the governor, the
senate, or the house of representatives; and all such opinions shall be
published in connection with the reported decision of said court.”).
2
See also Questions Submitted by the House of Representatives with
Answers of the Justices, 95 Me 564, 566-567 (1901) (“The questions
submitted at the present time are undoubtedly important questions of
law[;] it therefore becomes necessary to determine if they were submitted
upon a solemn occasion. It has been said that this language of the
Constitution means some serious and unusual exigency, such an exigency
as exists when the body making the inquiry, having some action in view,
has serious doubts as to its power and authority to take such action under
the Constitution or under existing statutes.”).
924 505 MICHIGAN REPORTS
seriousness of the question.”); In re Daugaard, 884 NW2d 163, 167 (SD,
2016) (“In determining whether a request for an advisory opinion pres-
ents a solemn occasion, the Court weighs . . . whether the question
presents issues pending before the Court, . . . whether alternative rem-
edies exist, whether the facts and questions are final or ripe for an
advisory opinion, the urgency of the question, . . . and whether the Court
has been provided with an adequate amount of time to consider the
issue.”).
As these decisions recognize, the original meaning of the phrase
“upon solemn occasions” was “some serious and unusual urgent need,”
and the timing of the request is an important consideration in deter-
mining whether the request was made on a “solemn occasion.” This
language was understood by the delegates as providing the Court wide
discretion in choosing whether or not to issue an advisory opinion.3
The second phrase of Article 3, § 8 relating to when an advisory
opinion may be requested provides that a request must be made “after
[the legislation] has been enacted into law but before its effective date.”
Thus, the provision expressly restricts the chronological time period in
which such a request may be made. By direct implication, the phrase
also restricts this Court’s power to issue an advisory opinion to cases in
which the request is timely made. For the following reasons, however, I
do not believe that this phrase can fairly be understood as placing a
direct, jurisdictional limitation on this Court’s ability to issue an
advisory opinion after the effective date of the legislation under review.
First, that is not what the provision says, nor do I think it reasonable
to imply such a rule from the text. The grammatical structure of this
provision gives us an important clue as to why this timing requirement
does not apply to issuance of the Court’s opinion. In the text, the word
“opinion” (the object of the sentence) is modified by three adjectival
prepositional phrases—“of the supreme court,” “on important questions of
law,” and “as to the constitutionality of the legislation.” The first answers
the question of which court may issue such an opinion—only this Court.
The second two phrases limit the subject matter of advisory opinions to
“important questions of law . . . as to the constitutionality of legislation.”
These limitations are directly connected to any advisory opinion that may

3
As Delegate Eugene Wanger explained: “What these words do is give
the court sound legal doctrine for hanging their hat on in refusing to give
an opinion. . . . In exercising restraint, . . . opinions [of other states’
courts] construe the words ‘solemn occasions’ to authorize their re-
fusal . . . in answering these questions.” 1 Official Record, Constitutional
Convention 1961, pp 1548-1549. Delegate Robert Danhof similarly stated:
“[I]t is upon those words ‘solemn occasion’ that [the Supreme Court] ha[s]
the right to turn [a request] down and they will turn it down when they
don’t want to do it, which we would imagine would be most of the time,
and because of that, they use that to state, no, this is not a solemn
occasion, even though we might have an important question of law.” Id. at
1549.
 ORDERS IN CASES 925
be issued by this Court. The remaining two phrases in the text (“upon
solemn occasions” and “after [the legislation] has been enacted into law
but before its effective date”) are adverbial prepositional phrases that
modify the verb: “may request.” Ordinarily, therefore, we would interpret
these phrases as describing when the subject of the sentence (“[e]ither
house of the legislature or the governor”) may undertake the action
permitted (requesting an advisory opinion). However, as noted above,
“upon solemn occasions” is a legal term of art that provides this Court
with wide discretion in choosing whether or not to issue an advisory
opinion. Thus, while perhaps inartfully drafted, this phrase was clearly
intended to relate to the Court’s power to issue an advisory opinion. But
there is no similar reason to disregard the grammatical structure of the
sentence as it relates to the “effective date” phrase—that provision is
directly connected to and limits when a request can be made. By direct
implication, it also restricts this Court’s power to issue an advisory
opinion to cases in which the request is timely made. But there is simply
nothing in the text of this provision to indicate that it also limits when
this Court may issue its opinion.
Moreover, I would not lightly infer that the provision establishes a
jurisdictional deadline for issuance of the Court’s opinion in the absence
of express language. Indeed, because placing such a deadline on the Court
would be so extraordinary, “one would normally expect it to be explicitly
decreed rather than offhandedly implied.”4 Nor would this be the most
natural reading of the provision—it would be strange for a provision to
impliedly impose the same deadline for two sequential events by two
different constitutional actors. That is not typically how deadline
provisions are drafted, and with good reason—the time period for the
second actor (here, the Court) would vary depending on the expedition of
the first. And, in any event, such a strained reading is unnecessary—as
I noted above, the phrase “upon solemn occasions” provides this Court
with wide discretion to take into account a number of considerations in
deciding whether to grant or deny a request for an advisory opinion,

4
Scalia, A Matter of Interpretation: Federal Courts and the Law (New
Jersey: Princeton University Press, 1997), p 29. Notably, the one state
constitution I found that contains timing requirements for issuance of a
court’s advisory opinion does so expressly. Cf. Fla Const, art IV, § 1(c)
(“The governor may request in writing the opinion of the justices of the
supreme court as to the interpretation of any portion of this constitution
upon any question affecting the governor’s executive powers and duties.
The justices shall, subject to their rules of procedure, permit interested
persons to be heard on the questions presented and shall render their
written opinion not earlier than ten days from the filing and docketing of
the request, unless in their judgment the delay would cause public injury.”)
(emphasis added); Fla Const, art IV, § 10 (“The justices . . . shall render
their written opinion no later than April 1 of the year in which the
initiative is to be submitted to the voters pursuant to Section 5 of Article
XI.”).
926 505 MICHIGAN REPORTS
including timing. Lastly, and as a further aid in determining the public
understanding of this provision, it is worth noting that this Court has
frequently issued advisory opinions after the effective date of the act at
issue, including in the period immediately after ratification.5
I am unpersuaded by Justice CLEMENT’s analysis because I do not
believe she provides adequate textual support for her conclusion that
the effective date deadline also was intended to apply to issuance of the
Court’s opinion. “Those who suggest that the meaning to be given a
provision of our constitution varies from a natural reading of the
constitutional text bear the burden of providing the evidence that the
ratifiers subscribed to such an alternative construction.” Michigan
United Conservation Clubs v Secretary of State (After Remand), 464
Mich 359, 376 (2001) (YOUNG, J., concurring). I do not believe Justice
CLEMENT has met this burden. First, it appears no delegate at the
constitutional convention ever mentioned that he or she understood the
effective date deadline as barring the Court from issuing an advisory
opinion after the legislation’s effective date.6 Second, while language
suggesting this understanding did find its way into the Address,7 that
language was added in a late amendment right before the Address was
approved, so it is questionable how well it reflects the delegates’
understanding of the provision.8 In any event, the more important

5
See ante at 902 n 35 (CLEMENT, J., concurring).
6
In this sense, it was like the watchdog that did not bark in the
famous Sherlock Holmes novel, i.e., the absence of a fact that one would
expect to see. Conan Doyle, “Silver Blaze,” Memoirs of Sherlock Holmes
(New York: Harper & Bros, 1894), pp 22, 26. See also Mich Coalition, 498
Mich at 326-327 (noting the absence of references of “pensions” or
“retirement” during the constitutional convention debates as further
support for its conclusion that the phrase “rates of compensation” in
Const 1963, art 11, § 5 was not commonly understood to include them).
7
The Address to the People states, in pertinent part, that the Court
may issue advisory opinions only “before [the legislation at issue] be-
come[s] effective.” 2 Official Record, Constitutional Convention 1961,
p 3368.
8
We have also recognized that in the hierarchy of permissible
extrinsic evidence, the Address to the People should take precedence
over the debates. See Mich Coalition, 498 Mich at 323-324 (“The Address
to the People, which was distributed to Michigan citizens in advance of
the ratification vote and which explained in everyday language what
each provision of the proposed new Constitution was intended to
accomplish, and, to a lesser degree, the constitutional convention de-
bates are also relevant to understanding the ratifiers’ intent.”) (cleaned
up; emphasis added). This is because the Address to the People was
approved by the delegates and was distributed prior to ratification. See,
e.g., Regents of Univ of Mich v Michigan, 395 Mich 52, 60 (1975) (“The
 ORDERS IN CASES 927
inquiry is the effect this provision of the Address had on the common
understanding of the people who ratified the Constitution. As for them,
it is well to remember that they voted on and approved the language of
the Constitution, not the language of the Address. As we have previously
recognized, “the actual language of the proposed constitution constitutes
the best evidence of the ‘common understanding[.]’ ” Goldstone v Bloom-
field Twp Pub Library, 479 Mich 554, 561 n 4 (2007), quoting Studier v
Mich Pub Sch Employees’ Ret Bd, 472 Mich 642, 652 (2005). And, while
the Address may be a relevant consideration, it cannot be used to
contradict the unambiguous language of the Constitution. See Nat’l
Pride At Work, Inc, 481 Mich at 80. In my view, the errant phrase in the
Address is insufficient to overcome the textual and historical clues as to
the meaning of Article 3, § 8 that are discussed above.
I also disagree with Justice CLEMENT’s interpretive approach because
she relies upon extrinsic circumstances to determine the purpose of the
provision, which violates a fundamental tenet of textualism. Although
extrinsic sources may be used to help us determine the original meaning
of the words and phrases in the text, see Citizens Protecting Michigan’s
Constitution, 503 Mich at 61; Dist of Columbia v Heller, 554 US 570, 605
(2008), they should not be used to determine what the original drafters
intended based on the mistaken notion that “because they were Fram-
ers . . . their intent is authoritative and must be the law[.]” Scalia, A
Matter of Interpretation: Federal Courts and the Law (Princeton, NJ:

reliability of the ‘Address to the People . . . lies in the fact that it was
approved by the general convention on August 1, 1962 as an explanation
of the proposed constitution. The ‘Address’ also was widely disseminated
prior to adoption of the constitution by vote of the people.”).
Interestingly, the proof of the Address to the People, which was
mailed to the delegates on June 26, 1962, states only that the new
section “empowers the supreme court to furnish advisory opinions to the
governor and each house of the legislature on important questions of law
and on solemn occasions,” and refers to the unconstitutional use tax.
Proof Copy, Address to the People, p 23, available at <https://
babel.hathitrust.org/cgi/pt?id=rndp.39015071175999&view=1up&seq=
25> (accessed December 5, 2019) [https://perma.cc/AQ52-VYGG]. The
language Justice CLEMENT refers to was inserted along with scores of other
changes in a later amendment that was proposed by the Committee on
Public Information. However, these changes were not mailed to the
delegates until July 27, 1962, only four days before the Address was
approved. 2 Official Record, Constitutional Convention 1961, p 3301. The
language, which was one of 112 proposed nonsubstantive amendments to
the Address to the People, was not discussed by the delegates before its
adoption. Id. at 3301-3311. The only explanation as to why the amend-
ment was proposed is a brief note in the Official Record—“for clarifica-
tion.” Id. at 3303. Therefore, I question whether the amended language is
entitled to the elevated consideration normally given to the Address.
928 505 MICHIGAN REPORTS
Princeton University Press, 1997), p 38.9 Instead, “[t]he purpose of a law
must be ‘collected chiefly from its words,’ not ‘from extrinsic circum-
stances.’ ” King v Burwell, 135 S Ct 2480, 2503 (2015) (SCALIA, J.,
dissenting), citing Sturges v Crowninshield, 17 US 122, 202 (1819).
Similarly, in his seminal treatise, Justice COOLEY recognized that intent
“is to be found in the instrument itself” rather than extrinsic sources.10
We have reaffirmed this principle on more than one occasion. See, e.g.,
City of Lansing v Lansing Twp, 356 Mich 641, 649-650 (1959) (“No
intent may be imputed to the legislature in the enactment of a law other
than such is supported by the face of the law itself. The courts may not
speculate as to the probable intent of the legislature beyond the words
employed in the act.”).11 Not surprisingly, we have recognized that it is
error to “focus[] on the history behind [a constitutional provision] and the

9
See also Scalia & Garner, Reading Law: The Interpretation of Legal
Texts (St Paul: Thomson/West, 2012), p 56 (noting, in distinguishing
“textualist interpretation and so-called purposive interpretation,” that
textualists insist, among other things, that “the purpose must be
derived from the text, not from extrinsic sources such as legislative
history or an assumption about the legal drafter’s desires”).
10
Cooley, Constitutional Limitations (1st ed), p 55; see also id. (“It is
to be presumed that language has been employed with sufficient
precision to convey [the intent], and unless examination demonstrates
that the presumption does not hold good in the particular case, nothing
will remain except to enforce it.”); id. at 55 n 3 (discussing Justice
Greene Bronson’s remarks “showing the impolicy and danger of
looking beyond the instrument itself to ascertain its meaning, when
the terms employed are positive and free from all ambiguity”), citing
People v Purdy, 2 Hill 31, 35 (NY, 1841) (Bronson, J., dissenting), rev’d
4 Hill 384 (NY, 1842).
11
Citing Mich Coalition, 498 Mich at 325-326, Justice CLEMENT
incorrectly asserts that “we have explicitly authorized looking to ‘extrin-
sic circumstances to determine the purpose of’ constitutional provi-
sions.” Ante at 886 n 3 (CLEMENT, J., concurring). However, no such
authorization appears in the text of the Court’s opinion or is even
implicit in the interpretive work we did in that case. See Mich Coalition,
498 Mich at 323-327 (using historical sources not to determine the
purpose of Const 1963, art 11, § 5, but instead to confirm the Court’s
textual interpretation of the original meaning of one phrase in that
provision, “rates of compensation”). Although we have stated in Mich
Coalition and elsewhere that in construing constitutional provisions,
“the court should have regard to the circumstances leading to their
adoption and the purpose sought to be accomplished,” see, e.g., Kearney
v Bd of State Auditors, 189 Mich 666, 673 (1915), as the authorities cited
above make abundantly clear, the purpose of the provision must be
derived from its text, see id. at 672-673. Properly understood, then, we
 ORDERS IN CASES 929
intent of the constitutional convention delegates in proposing it, rather
than on the interpretation that the people would have given the
provision when they adopted it.”12
Having derived the purpose from an improper source, Justice
CLEMENT also errs in the way she uses it. A purpose properly derived
from the text may be used as follows:
The subject matter of the document (its purpose, broadly speak-
ing) is the context that helps to give the words meaning—that

should only have regard to the circumstances leading to the adoption of

the Constitution if those circumstances help us to discover the common
understanding of the words and phrases in the provision at the time of
ratification. Citizens Protecting Michigan’s Constitution, 503 Mich at 61.
12
Studier, 472 Mich at 651-652. In her dissent in Musselman v
Governor, 448 Mich 503 (1995), which this Court cited with approval in
Studier, Justice RILEY explained why this is so:
While the majority does attempt to substantiate its conclusion . . .
by looking to the intent of the framers of the provision, such an
examination is improper because, as stated by Justice COOLEY in
[Twitchell v] Blodgett, [13 Mich 127, 166 (1865)], “the light to be
derived from an examination of the proceedings of constitutional
conventions, on questions of constitutional construction, is com-
monly vague and inconclusive, and not to be allowed, in any case,
to control the meaning of unambiguous terms.” He further stated:
If, however, by an examination of these proceedings, we
had succeeded in ascertaining definitely the intent of the
convention, we might still be far from the intent of the
people in adopting their work. That intent should be
gathered from the words embraced by the instrument as
adopted, if those words are free from doubt. The people, in
passing upon it, looked only to the clauses as they then
stood, without troubling themselves with the consider-
ations, or the accidental circumstances, that may have
brought them to their present form.
Justice COOLEY then concluded that if the constitution expresses a
natural meaning which, upon

the first impression . . . strike[s] the mind on reading the

clause . . . then further examination, with a view to find
some other and more subtle meaning, ought to be made
with extreme caution, lest we deceive ourselves into disre-
garding the plain and obvious sense for some other, which
only ingenuity discovers and suggests.
[Musselman v Governor, 448 Mich 503, 528-529 (1995), on reh 450
Mich 574 (1996) (RILEY, J., dissenting) (citations omitted).]
930 505 MICHIGAN REPORTS
might cause draft to mean a bank note rather than a breeze. And
even beyond that, it can be said more generally that the resolu-
tion of an ambiguity or vagueness that achieves a statute’s
purpose should be favored over the resolution that frustrates its
purpose. [Scalia & Garner, Reading Law: The Interpretation of
Legal Texts (St Paul: Thomson/West, 2012), p 56.]

Justice CLEMENT does not use the purpose of the provision to give
meaning to a particular word or to resolve an ambiguity in a manner that
does not frustrate the purpose of the provision. Instead, she interprets the
provision by focusing on “ ‘the mischief designed to be remedied . . . .’ ”
Ante at 899 (CLEMENT, J., concurring), quoting People ex rel Drake v
Mahaney, 13 Mich 481, 497 (1865). This interpretive approach, known as
the “mischief rule,” is generally synonymous with purposivism.13 It has
been sharply criticized, and rightly so. See, e.g., Jordan, Legislative
History and Statutory Interpretation: The Relevance of English Practice,
29 USF L Rev 1, 6 (1994) (“[T]he mischief rule has also been criticized as
unduly subjective, authorizing the courts, in the words of one Lord
Justice, to engage in ‘redrafting with a vengeance.’ ”).14 Instead, while
extrinsic circumstances may be relevant as an aid in discerning the
common understanding of a legal text, that history may not be used to
identify the problem the provision was designed to remedy so the
provision may be construed only to mitigate that problem in the absence
of textual support for such a narrow reading.15
I agree that timing is an important consideration for the Court in
deciding whether to grant or deny a request for an advisory opinion;

13
See Reading Law, p 433 (defining the “mischief rule” as “[t]he
interpretive doctrine that a statute should be interpreted by first
identifying the problem (or ‘mischief’) that the statute was designed to
remedy and then adopting a construction that will suppress the problem
and advance the remedy,” and characterizing the mischief rule as “a
primarily British name for purposivism”); id. at 438 (noting that
“[b]roadly speaking, purposivism is synonymous with mischief rule”).
14
I recognize, of course, that Justice COOLEY authored Mahaney and
that he appeared to utilize the “mischief rule” in that case. He did so,
however, only after examining the text of the constitutional provision
and determining that it did not preclude the action at issue. See
Mahaney, 13 Mich at 496 (“We are unable to see how this conflicts with
the provision referred to.”). To the extent he looked outside the text for
“[t]he mischief designed to be remedied” in Mahaney, he clearly rejected
this interpretive approach in his later work on the subject. See Cooley,
Constitutional Limitations (1st ed), p 55.
15
See Oncale v Sundowner Offshore Servs, Inc, 523 US 75, 79 (1998)
(noting that “statutory prohibitions often go beyond the principal evil to
cover reasonably comparable evils, and it is ultimately the provisions of
our laws rather than the principal concerns of our legislators by which
we are governed”).
 ORDERS IN CASES 931
however, I do not believe the Court is precluded from issuing an advisory
opinion after the effective date of the legislation at issue. For the
reasons stated in Justice ZAHRA’s dissenting statement, I believe the
requests from the House and Senate at issue here were submitted upon
a solemn occasion and that we should grant the requests and issue an
advisory opinion despite the fact that the public acts in question have
already taken effect.

Leave to Appeal Before Decision by the Court of Appeals Denied Decem-

ber 18, 2019:

LEAGUE OF WOMEN VOTERS V SECRETARY OF STATE, No. 160492; Court of

Appeals No. 350938. On order of the Court, the motion for immediate
consideration is granted. The application for leave to appeal prior to
decision by the Court of Appeals is considered, and it is denied, because
the Court is not persuaded that the questions presented, to the extent
that the appellants have appellate standing to raise them, should be
reviewed by this Court before consideration by the Court of Appeals. The
motion to intervene is denied. We direct the Court of Appeals to issue an
abbreviated briefing schedule to the parties and to issue a decision no
later than Monday, January 27, 2020. Any appeal from that decision
must be filed in this Court by 5:00 p.m. on Monday, February 3, 2020.

Stay Granted December 18, 2019:

NYLAAN V WOLVERINE WORLD WIDE, INC, No. 160675; Court of Appeals

No. 351697. On order of the Court, the motions for immediate consid-
eration and for stay of the Kent Circuit Court’s order compelling the
defendant to produce documents withheld as privileged are granted.
The application for leave to appeal the December 11, 2019 order of the
Court of Appeals remains pending.

Summary Disposition December 20, 2019:

PEOPLE V COLVILLE, No. 159004; Court of Appeals No. 336405. Pursu-

ant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate
Part II of the Court of Appeals judgment addressing the defendant’s
motion to suppress, and we remand this case to the Oakland Circuit
Court for further proceedings. The circuit court shall conduct an
evidentiary hearing to determine: (1) whether, at the time that Officer
Proulx initially searched the property at 695 Livernois, he had been
advised that he had consent to search the property; (2) if so, whether
Treasury employee Jill Robinson had actual authority to consent to that
search; and (3) if not, whether Officer Proulx reasonably relied on
apparent authority for consent to search, i.e., whether it was reasonable
for him to rely on the apparent consent without making any effort to
verify the authority to consent, in light of the citation posted on the front
door. The circuit court shall then decide whether to grant the defendant
932 505 MICHIGAN REPORTS
a new trial. In all other respects, leave to appeal is denied, because we
are not persuaded that the remaining question presented should be
reviewed by this Court. We do not retain jurisdiction.
ZAHRA, J. (dissenting). I respectfully dissent from the order remand-
ing this case to the trial court for an evidentiary hearing to determine
whether, at the time that Officer Proulx initially searched the property
at 695 Livernois, he had been advised that he had consent to search the
property; whether Department of Treasury employee Jill Robinson had
actual authority to consent to that search; or whether Officer Proulx
reasonably relied on Robinson’s apparent authority for consent to
search. Defendant did not preserve these issues below and has not
properly presented these issues to this Court. Instead, defendant raises
only two issues in this Court: whether the Court of Appeals misapplied
the doctrine of “inevitable discovery” in rejecting defendant’s argument
that the search of his house violated the Fourth Amendment; and
whether defendant was denied his right to an impartial jury, or to the
effective assistance of counsel, when a juror attempted to engage a court
clerk in a conversation about the case, but no further inquiry was made
into (a) what was said, (b) whether the juror was biased, or (c) whether
there was further communication with the jury at large. Because the
questions presented on remand were not preserved and were wholly
abandoned by defendant, I would deny the application for leave to
appeal and offer defendant no avenue for relief.
In the trial court, defendant moved to suppress incriminating evi-
dence recovered from the warrantless entry into the Livernois home
under the Fourth Amendment. His motion, however, focused on the
validity of the search warrant and the veracity of the assertions within
Detective Matthew Goebel’s affidavit supporting the warrant rather
than Officer Proulx’s initial warrantless entry. Defendant alerted the
trial court that the county did not own the Livernois home and alleged
that “Ms. Robinson did not have authority to grant officers or county
employees permission to enter the premises/home.” But he made this
assertion in the context of requesting an evidentiary hearing pursuant
to Franks v Delaware,1 arguing that the allegations in Detective
Goebel’s affidavit were materially false. Defendant did not ask for a
hearing on whether Officer Proulx or Detective Goebel had valid consent
to search, nor did he present any argument on the doctrine of consent.
In the Court of Appeals, defendant again stated that Robinson had no
authority to consent to the search, but just as he failed to do before this
Court, he did not argue the relevant body of law on the validity of
Robinson’s consent.
This Court has recognized that
[i]t is not enough for an appellant in his brief simply to announce
a position or assert an error and then leave it up to this Court to
discover and rationalize the basis for his claims, or unravel and

1
Franks v Delaware, 438 US 154 (1978).
 ORDERS IN CASES 933
elaborate for him his arguments, and then search for authority
either to sustain or reject his position.[2]

As the appellant, defendant was required to preserve his issues ad-

equately and make at least a threshold showing of error entitling him to
relief.3 His failure to do so constitutes abandonment of those issues on
appeal.4 This Court correctly denies defendant relief on the issues he
raises, but on its own initiative also grants defendant relief that he has
not requested. Because defendant has failed to properly raise and
present the dispositive arguments adopted by the majority or any other
jurisprudentially significant issues ripe for resolution, I would deny him
the relief the majority gives him today.
PEOPLE V WALTER KELLY, No. 159605; Court of Appeals No. 340033.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
reverse Part II of the Court of Appeals judgment, and we remand this
case to the Wayne Circuit Court for further proceedings. As noted by
dissenting Judge RONAYNE KRAUSE, while Miranda v Arizona, 384 US 436
(1966), is not generally invoked for on-the-scene questioning or other
general questioning of citizens, such inquiries apply to questioning of
persons “not under restraint.” Id. at 477, and see People v Hill, 429 Mich
382, 397-399 (1987). The defendant was handcuffed and under restraint
when questioned, so Miranda applied. On remand, the prosecutor is not
precluded from arguing that the evidence is admissible under the
public-safety exception to Miranda. In all other respects, leave to appeal
is denied, because we are not persuaded that the remaining question
presented should be reviewed by this Court.
MARKMAN, J. (dissenting). I respectfully dissent from this Court’s
order peremptorily reversing the judgment of the Court of Appeals.
Defendant approached police officers executing a search warrant at a
home that he had listed on his driver’s license as his place of residence.
Based upon defendant’s association with the home, an officer hand-
cuffed him, asked him for identification, and inquired whether there
were any weapons in the vehicle defendant had driven to the home.
Defendant informed the officer that there was a firearm in the vehicle
and volunteered that he did not have a concealed-weapons permit for
the weapon. Police then retrieved the firearm, and defendant was
charged with unlawfully carrying a concealed weapon. He subsequently
moved to suppress evidence of the firearm, arguing that the officer had
not provided him warnings consistent with Miranda v Arizona, 384 US
436 (1966). The trial court denied the motion, a jury convicted defendant
as charged, and the Court of Appeals affirmed the conviction, rejecting
defendant’s argument that the lower court had erred by denying his

2
Mitcham v Detroit, 355 Mich 182, 203 (1959).
3
See id. (“The appellant himself must first adequately prime the
pump; only then does the appellate well begin to flow.”).
4
People v McGraw, 484 Mich 120, 131 n 36 (“Failure to brief an issue
on appeal constitutes abandonment.”).
934 505 MICHIGAN REPORTS
motion to suppress. This Court now reverses the Court of Appeals,
concluding that because the officer handcuffed defendant, he was
required to “Mirandize” defendant before asking any further questions.
I would grant leave to appeal for two reasons.
First, it is not immediately apparent that police handcuffing an
individual necessarily triggers the warnings requirement set forth in
Miranda. “In Miranda, the United States Supreme Court held that the
Fifth Amendment’s prohibition against compelled self-incrimination
requires that the accused be given a series of warnings before being
subjected to ‘custodial interrogation.’ ” People v Elliott, 494 Mich 292,
301 (2013), quoting Miranda, 384 US at 444. But “not . . . all statements
obtained by the police after a person has been taken into custody are to
be considered the product of interrogation.” Rhode Island v Innis, 446
US 291, 299 (1980). Rather, “ ‘[i]nterrogation,’ as conceptualized in the
Miranda opinion, must reflect a measure of compulsion above and
beyond that inherent in custody itself.” Id. at 300. And “the definition of
interrogation can extend only to words or actions on the part of police
officers that they should have known were reasonably likely to elicit an
incriminating response.” Id. at 302. Here, a police officer on a public
street, and in plain view of a number of members of the public (rather
than within a police car or a police station), asked defendant general
questions concerning his identity and whether there were weapons
within his vehicle. Thus, it is hardly clear that the officer either (a)
applied any measure of compulsion beyond placing defendant in custody
by way of handcuffing defendant, or (b) asked questions that he should
have known would elicit an incriminating response. Affirmative an-
swers to both of these legal assessments is a required precondition to a
reversal.
Second, the United States Supreme Court has held that officers
executing a search warrant on a residence may for the duration of the
search detain and handcuff individuals found at the residence. Muehler
v Mena, 544 US 93, 98-102 (2005). And it is commonplace for officers
under these circumstances to ask generalized and informational ques-
tions when detaining such an individual. Therefore, I would grant leave
to appeal and establish clear precedent in the instant circumstance in
order to afford the police in this state reasonable guidance as to whether
they must “Mirandize” individuals detained and questioned in the
course of the execution of a search warrant. It is a matter of considerable
law-enforcement consequence for the people of this state that its highest
Court would peremptorily conclude that Miranda has been breached,
and therefore that an unlawful firearm must be excluded as evidence,
without first addressing the threshold inquiries set forth in this dissent.
ZAHRA, J., joins the statement of MARKMAN, J.

Leave to Appeal Denied December 20, 2019:

TOWNSHIP OF WEST BLOOMFIELD V CONNOLLY, No. 159557; Court of

Appeals No. 345428.
 ORDERS IN CASES 935
MARKMAN, J. (concurring). I agree that the questions presented
should not be further reviewed by this Court, but as to defendants’
challenges to their conditions of probation, I would deny leave specifi-
cally on the ground of mootness, given that the lengthiest of their terms
of probation have already elapsed. People v Anderson, 284 Mich App 11,
17 (2009).
MEGERIAN V UNITED SERVICES AUTOMOBILE ASSOCIATION, No. 159684;
Court of Appeals No. 336483.
MARKMAN, J. (dissenting). I respectfully dissent. Mari Zimmerman-
Thompson and Christopher Thompson married in May 2002. They
married later in life, and each owned a separate house before and
throughout the marriage. Mari’s house was located on Stoneham Road
(the Stoneham house), while Christopher’s was located on Gleaner Road
several miles away (the Gleaner house). In July 2015, Christopher was
driving a car with Mari as a passenger and he caused a car accident that
killed both of them.
Christopher was covered by an automobile insurance policy issued by
defendant. The policy provided that defendant would provide additional
liability coverage on behalf of Christopher beyond the minimum re-
quired by the no-fault act, MCL 500.3101 et seq., but it included the
following exclusion:
We do not provide Liability Coverage . . . for . . . [bodily injury]
to a relative who resides primarily in that covered person’s
household.
Plaintiff, the representative of Mari’s estate, sued defendant for liability
coverage, alleging that Christopher had been negligent in causing the
accident. Because there was no dispute that Mari was a “relative” of
Christopher—the “covered person”—the issue was whether Mari “re-
side[d] primarily in [Christopher’s] household.” The trial court ruled
that there was a question of fact concerning this issue, and the Court of
Appeals affirmed in a split decision. Megerian v United Servs Auto Ass’n,
unpublished opinion per curiam of the Court of Appeals, issued April 18,
2019 (Docket No. 336483). For the following alternative reasons, I
believe the Court of Appeals erred.
First, as explained by the Court of Appeals dissent, “over the past
seven or eight years, Mari spent most of her evenings at the Gleaner
house with Christopher. She seldom left Christopher to stay overnight
alone . . . .” Id. at 2 (SWARTZLE, J., dissenting in part). Indeed, the Court
of Appeals majority itself acknowledged that “Mari apparently spent the
majority of her overnights at Gleaner house . . . .” Id. at 5 (opinion of the
Court). Furthermore, “[w]hen she did stay at the Stoneham house, it
was with Christopher . . . .” Id. at 2 (SWARTZLE, J., dissenting in part).
Because Mari spent a majority of her nights at the Gleaner house with
Christopher, I believe that she “primarily” resided in the Gleaner house
with Christopher, even if she is deemed also to have resided in the
Stoneham house. I respectfully disagree with the Court of Appeals
majority in this context that “primary residence requires more than a
bare majority of time.” Id. at 5 (opinion of the Court) (emphasis omitted).
936 505 MICHIGAN REPORTS
Second, even if Mari resided in both the Gleaner and the Stoneham
houses such that it is impossible to conclude as a matter of law that she
“primarily” resided in the Gleaner house, the policy refers to residence
in a “household,” not residence in a “house.” And Random House
Webster’s College Dictionary (1997) defines “household” in relevant part
as “the people of a house collectively; a family including any servants.”
That is, “household” is better understood as describing a unit composed
of persons and not a physical location. To illustrate, if Christopher and
Mari had spent six months of the year in Michigan and six months in
Florida, it would not be understood in common parlance that they had
separate households. Rather, it would be understood that they comprise
a single household unit of husband and wife that persists notwithstand-
ing any change of locations. Here, even when Mari stayed at the
Stoneham house for an extended period of time, typically no longer than
two weeks, she stayed there with Christopher. There is no evidence that
Christopher and Mari ever actually “resided” apart. Accordingly, in my
judgment, Mari “reside[d] primarily” in Christopher’s “household,”
regardless of the physical location of Christopher’s “household.”
For these reasons, I believe there is no genuine issue of material fact
concerning whether Mari “reside[d] primarily in [Christopher’s] house-
hold” for purposes of the policy exclusion. As a result, I would reverse the
judgment of the Court of Appeals and remand to the trial court for entry
of summary disposition in favor of defendant.
ZAHRA, J., joins the statement of MARKMAN, J.
CAVANAGH, J., not participating due to her prior relationship with
Garan Lucow Miller, P.C.
In re FRANZEL, MINORS, Nos. 160382 and 160383; Court of Appeals
Nos. 346547 and 347366.
In re DEAN, MINORS, No. 160532; Court of Appeals No. 347946.

Summary Disposition December 23, 2019:

PEOPLE V CLINGMAN, No. 158423; Court of Appeals No. 334806. By

order of May 28, 2019, the application for leave to appeal the July 24,
2018 judgment of the Court of Appeals was held in abeyance pending the
decision in People v Harbison (Docket No. 157404). On order of the
Court, the case having been decided on July 11, 2019, 504 Mich 230
(2019), the application is again considered. Pursuant to MCR
7.305(H)(1), in lieu of granting leave to appeal, we remand this case to
the Court of Appeals for reconsideration in light of People v Thorpe and
People v Harbison, 504 Mich 230 (2019). We do not retain jurisdiction.
PEOPLE V BERRY, No. 158681; Court of Appeals No. 343166. Pursuant
to MCR 7.305(H)(1), in lieu of granting the application for leave to
appeal, we vacate the April 4, 2017 opinion of the Wayne Circuit Court
denying the defendant’s motion for relief from judgment, and we
remand this case to the Wayne Circuit Court for reconsideration of the
defendant’s motion under MCR 6.508(D) in light of People v Johnson,
502 Mich 541 (2018). On remand, the trial court shall determine
 ORDERS IN CASES 937
whether the new evidence is credible and whether the impact of the new
evidence, in conjunction with the evidence that would be presented on
retrial, would make a different result probable on retrial. Id. at 566-567.
In all other respects, leave to appeal is denied, because the defendant
has failed to meet the burden of establishing entitlement to relief under
MCR 6.508(D). We do not retain jurisdiction.
PEOPLE V HERMAN, No. 158995; Court of Appeals No. 345222. Pursuant
to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the
July 12, 2018 order of the Macomb Circuit Court denying the defen-
dant’s motion for relief from judgment, and we remand this case to the
trial court for reconsideration of that motion. The trial court’s order
denied the motion by indicating with a check mark that “Defendant’s
request is denied.” This order failed to “include a concise statement of
the reasons for the denial,” as required by MCR 6.504(B)(2).
PEOPLE V MICHAEL BARBER, No. 159076; Court of Appeals No. 339452.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
vacate Part III of the Court of Appeals judgment, which did not address
the defendant’s argument that the Legislature did not intend for a
single act to result in convictions for both assault with intent to do great
bodily harm less than murder, MCL 750.84(1)(a), and assault by
strangulation, MCL 750.84(1)(b). We remand this case to the Court of
Appeals for reconsideration in light of People v Miller, 498 Mich 13, 19
(2015). In all other respects, leave to appeal is denied, because we are
not persuaded that the remaining questions presented should be re-
viewed by this Court. We do not retain jurisdiction.
PEOPLE V SHANE HAWKINS, No. 159215; Court of Appeals No. 339020.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
vacate that part of the Court of Appeals judgment addressing whether the
defendant established that Detective Boczar’s testimony was sufficiently
prejudicial to warrant reversal, and we remand this case to the Court of
Appeals to address the question whether the defendant has established
that there is a reasonable probability that, but for defense counsel’s
failure to object to Detective Boczar’s testimony, the outcome of this trial
would have been different. Strickland v Washington, 466 US 668, 694
(1984). While the Court of Appeals quoted the “reasonable probability”
standard for determining prejudice in ineffective assistance of counsel
cases, the panel did not clearly apply this standard. Instead, the panel
concluded that Detective Boczar’s testimony “did not rise to the level of
overwhelming the proper evidence.” People v Hawkins, unpublished per
curiam opinion of the Court of Appeals, issued January 17, 2019 (Docket
No. 339020), p 8. In all other respects, leave to appeal is denied, because
we are not persuaded that the remaining questions presented should be
reviewed by this Court. We do not retain jurisdiction.
In re PAROLE OF JOHN EMIL HRITZ, No. 159335; Court of Appeals No.
345782. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to
appeal, we remand this case to the Court of Appeals for consideration as
on leave granted.
938 505 MICHIGAN REPORTS
PEOPLE V VANN, Nos. 159789 and 159790; Court of Appeals Nos.
338742 and 344432. Pursuant to MCR 7.305(H)(1), in lieu of granting
leave to appeal, we vacate the judgment of the Court of Appeals and we
remand this case to the Court of Appeals for consideration of the parties’
appeals on the merits. The defendant was entitled to an appeal of right,
with counsel. Douglas v California, 372 US 353 (1963); Const 1963, art
1, § 20. He timely requested, and initially received, appointed appellate
counsel. Although the defendant purportedly received an appeal of
right, the substitution of counsel filed in the Court of Appeals on
November 23, 2011 resulted in both attorneys disclaiming responsibility
for representing the defendant. The defendant was left without counsel
of record for the remainder of the appeal, from a point before the filing
of the brief on appeal. Accordingly, as both parties concede, the defen-
dant was deprived of his right to a direct appeal with counsel. The
remedy for this constitutional error is the reinstatement of the appeal.
See Roe v Flores-Ortega, 528 US 470, 477 (2000); Peguero v United
States, 526 US 23, 28 (1999). Since the defendant is currently repre-
sented by appointed appellate counsel, who has preserved his appellate
rights in the courts below, all that remains to be remedied is the
consideration of his direct appeal on the merits. In all other respects,
leave to appeal is denied, because we are not persuaded that the
remaining questions presented should now be reviewed by this Court.
We do not retain jurisdiction.
PEOPLE V HOLLEY, No. 160047; Court of Appeals No. 337912. Pursuant
to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate Part
II.C. of the judgment of the Court of Appeals, regarding newly discov-
ered evidence, and we remand this case to the Wayne Circuit Court for
reconsideration of the defendant’s motion for a new trial in light of
People v Johnson, 502 Mich 541 (2018). On remand, the trial court shall
determine whether the new evidence is credible and whether the impact
of the new evidence, in conjunction with the evidence that would be
presented on retrial, would make a different result probable on retrial.
Id. at 566-567. In all other respects, leave to appeal is denied, because
we are not persuaded that the remaining questions presented should be
reviewed by this Court. We do not retain jurisdiction.
PEOPLE V BERRIDGE, No. 160052; Court of Appeals No. 348768. Pursu-
ant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand
this case to the Court of Appeals for consideration as on leave granted.

Leave to Appeal Granted December 23, 2019:

PEOPLE V PAGANO, No. 159981; Court of Appeals No. 340859. The

parties shall address whether the 911 call relayed to the police provided
reasonable suspicion that defendant was intoxicated so as to justify the
stop of her vehicle. See Alabama v White, 496 US 325 (1990), Florida v
JL, 529 US 266 (2000), and Navarette v California, 572 US 393 (2014).
The time allowed for oral argument shall be 20 minutes for each side.
MCR 7.314(B)(1).
 ORDERS IN CASES 939
The Criminal Defense Attorneys of Michigan and the Prosecuting
Attorneys Association of Michigan are invited to file briefs amicus
curiae. Other persons or groups interested in the determination of the
issue presented in this case may move the Court for permission to file
briefs amicus curiae.

Orders Granting Oral Argument in Cases Pending on Application for

Leave to Appeal Entered December 23, 2019:

PEOPLE V HAMPTON, No. 159676; Court of Appeals No. 338418. The

appellant shall file a supplemental brief within 42 days of the date of
this order addressing whether the Legislature intended to elevate to
felony-murder those instances of first-degree child abuse in which the
only act of abuse is the child’s murder. See MCL 750.316(1). In addition
to the brief, the appellant shall electronically file an appendix conform-
ing to MCR 7.312(D)(2). In the brief, citations to the record must provide
the appendix page numbers as required by MCR 7.312(B)(1). The
appellee shall file a supplemental brief within 21 days of being served
with the appellant’s brief. The appellee shall also electronically file an
appendix, or in the alternative, stipulate to the use of the appendix filed
by the appellant. A reply, if any, must be filed by the appellant within 14
days of being served with the appellee’s brief. The parties should not
submit mere restatements of their application papers.
We direct the Clerk to schedule the oral argument in this case for the
same future session of the Court when it will hear oral argument in
People v Bean (Docket No. 159384).
The Criminal Defense Attorneys of Michigan and the Prosecuting
Attorneys Association of Michigan are invited to file briefs amicus
curiae. Other persons or groups interested in the determination of the
issue presented in this case may move the Court for permission to file
briefs amicus curiae.
In re PETITION OF ATTORNEY GENERAL FOR SUBPOENAS, No. 159690;
reported below: 327 Mich App 136. The appellant shall file a supplemen-
tal brief within 42 days of the date of this order addressing: (1) whether
the circuit court was required to hold a hearing before authorizing the
disclosure of medical records under 42 CFR 2.66; (2) whether the circuit
court erred when it determined that the petitioner established “good
cause” and otherwise satisfied the criteria set forth in 42 CFR 2.64(d) and
42 CFR 2.64(e); and (3) whether the circuit court erred in authorizing the
disclosure of confidential patient communications under 42 CFR 2.63(a).
In addition to the brief, the appellant shall electronically file an appendix
conforming to MCR 7.312(D)(2). In the brief, citations to the record must
provide the appendix page numbers as required by MCR 7.312(B)(1). The
appellee shall file a supplemental brief within 21 days of being served
with the appellant’s brief. The appellee shall also electronically file an
appendix, or in the alternative, stipulate to the use of the appendix filed
by the appellant. A reply, if any, must be filed by the appellant within 14
days of being served with the appellee’s brief. The parties should not
submit mere restatements of their application papers.
940 505 MICHIGAN REPORTS
Persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae.

Leave to Appeal Denied December 23, 2019:

PEOPLE V TROY HITE, No. 157674; Court of Appeals No. 342618.

PEOPLE V ALCALA, No. 157893; Court of Appeals No. 342611.
PEOPLE V RAHM, No. 158062; Court of Appeals No. 342810.
PEOPLE V JASON STREATER, No. 158103; Court of Appeals No. 335670.
PEOPLE V JASON STREATER, No. 158123; Court of Appeals No. 335670.
PEOPLE V MERCER, No. 158442; Court of Appeals No. 335181.
PEOPLE V GRIFFIN, No. 158466; Court of Appeals No. 338160.
In re ESTATE OF ROBERT BERRY BULLOCK, No. 158584; Court of Appeals
No. 338635.
WHEELER V CITY OF LIVONIA, No. 158910; Court of Appeals No. 338704.
WALTON & ADAMS, LLC V SERVICE STATION INSTALLATION BUILDING & CAR
WASH EQUIPMENT, INC, No. 159030; Court of Appeals No. 340758.
PEOPLE V HILER, No. 159134; Court of Appeals No. 346229.
PEOPLE V DERRICK JOHNSON, No. 159252; Court of Appeals No. 328443.
PEOPLE V BRENEMAN, No. 159256; Court of Appeals No. 340824.
PEOPLE V TANAKA WELLS, No. 159275; Court of Appeals No. 342663.
PEOPLE V TANAKA WELLS, No. 159277; Court of Appeals No. 342665.
PEOPLE V HINTON, No. 159300; Court of Appeals No. 345771.
AGARWAL V AGARWAL, Nos. 159348, 159349, and 159350; Court of
Appeals Nos. 340133, 340435, and 340591.
PEOPLE V MASSEY, No. 159352; Court of Appeals No. 338183. On order
of the Court, the application for leave to appeal the March 21, 2019
judgment of the Court of Appeals is considered, and it is denied, because
we are not persuaded that the question presented should be reviewed by
this Court. The Court notes, however, to the extent that the sentencing
court assigned zero points to Offense Variable (OV) 7, MCL 777.37, on
the ground that judicial fact-finding was not permitted, the court erred
as a matter of law. People v Steanhouse, 500 Mich 453, 466-467 (2017);
People v Lockridge, 498 Mich 358, 364, 391-392, 392 n 28 (2015). To the
extent that the sentencing court concluded that a preponderance of the
evidence did not support assigning 50 points to OV 7, but that a
departure was warranted based on the “egregious nature of th[e]
heinous assault,” the court erred as a matter of law. MCL 769.34(3)(b).
 ORDERS IN CASES 941
On remand, the sentencing judge shall determine whether zero points or
50 points are to be assigned to OV 7 and, as ordered by the Court of
Appeals, shall either resentence defendant or articulate the reasons for
any departure based on the applicable sentencing guidelines range.
LOCKARD V MAYCO INTERNATIONAL, LLC, No. 159358; Court of Appeals
No. 341808.
PEOPLE V SCOTT COLE, No. 159362; Court of Appeals No. 346869.
PEOPLE V WINER, No. 159460; Court of Appeals No. 340688.
PEOPLE V ANTHONY, No. 159480; Court of Appeals No. 340535.
KONDAUR CAPITAL CORPORATION V DOUGLAS, No. 159632; Court of Ap-
peals No. 347596.
PEOPLE V LEE, No. 159703; Court of Appeals No. 348403.
PEOPLE V BUTTERS, No. 159755; Court of Appeals No. 347637.
PEOPLE V JOHNNIE GORDON, No. 159766; Court of Appeals No. 346758.
PEOPLE V BONNER, No. 159778; Court of Appeals No. 347941.
PEOPLE V DURAM, No. 159805; Court of Appeals No. 340486.
PEOPLE V DONTREL WILLIAMS, No. 159826; Court of Appeals No. 343761.
MCELMURRY V RUGG, No. 159846; Court of Appeals No. 346588.
PEOPLE V WEISSERT, No. 159876; Court of Appeals No. 346640.
PEOPLE V HAWKS, No. 159901; Court of Appeals No. 347870.
PEOPLE V JEFFRIES, No. 159905; Court of Appeals No. 347356.
PEOPLE V ERIC HARVEY, No. 159909; Court of Appeals No. 339262.
PEOPLE V DEQUARIES JACKSON, No. 159917; Court of Appeals No.
343198.
PEOPLE V KEYSUE BOONE, No. 159929; Court of Appeals No. 348081.
RCS RECOVERY SERVICES, LLC V MITCHELL, No. 159946; Court of
Appeals No. 347388.
WATTS V PATEL, No. 159958; Court of Appeals No. 346959.
PEOPLE V DAJUAN SIMPSON, No. 159973; Court of Appeals No. 348573.
PEOPLE V CALVEY, No. 159974; Court of Appeals No. 347163.
PEOPLE V DONALD WILLIAMS, No. 159985; Court of Appeals No. 347430.
PEOPLE V ANDREW HILL, No. 160010; Court of Appeals No. 348756.
PEOPLE V DARIUS MALONE, Nos. 160021 and 160022; Court of Appeals
Nos. 348779 and 348781.
942 505 MICHIGAN REPORTS
BRONSON HEALTH CARE GROUP, INC V FARM BUREAU MUTUAL INSURANCE
COMPANY OF MICHIGAN, No. 160025; Court of Appeals No. 341200.
PEOPLE V TYRONE WALKER, No. 160033; Court of Appeals No. 348656.
PEOPLE V THORNTON, No. 160038; Court of Appeals No. 348414.
PEOPLE V JAMES DANIELS, No. 160042; Court of Appeals No. 349712.
PEOPLE V MICHAEL PETERSON, No. 160045; Court of Appeals No. 347080.
PEOPLE V SHAMON SMITH, No. 160055; Court of Appeals No. 347263.
HANNOSH V HANNOSH, No. 160056; Court of Appeals No. 348159.
PEOPLE V STEPHENSON, No. 160058; Court of Appeals No. 348758.
PEOPLE V SCHAFER, No. 160062; Court of Appeals No. 347437.
PEOPLE V RENDER, No. 160064; Court of Appeals No. 348191.
VIVIANO, J., did not participate due to a familial relationship with the
presiding circuit court judge in this case.
ARABBO V CITY OF BURTON, No. 160067; Court of Appeals No. 341713.
CAVANAGH, J., did not participate due to her prior relationship with
Garan Lucow Miller, P.C.
PEOPLE V MARLON BURNS, No. 160073; Court of Appeals No. 342712.
PCT BRANDS, LLC V DIGITAL GADGETS, LLC, No. 160077; Court of
Appeals No. 342481.
PEOPLE V KOLBY WILLIAMS, No. 160084; Court of Appeals No. 348899.
PEOPLE V LEHRE, No. 160085; Court of Appeals No. 349260.
TODD STEIN & ASSOCIATES V CAZEL, No. 160087; Court of Appeals No.
348053.
PEOPLE V TANINO MILLER, No. 160088; Court of Appeals No. 341306.
PEOPLE V KEMP, No. 160090; Court of Appeals No. 342244.
PEOPLE V KNACK, No. 160102; Court of Appeals No. 348933.
PEOPLE V WILLIAM FORD, No. 160108; Court of Appeals No. 349281.
PEOPLE V WILLIAM CALLOWAY, No. 160112; Court of Appeals No. 348164.
PEOPLE V SHAWN BAILEY, No. 160116; Court of Appeals No. 343430.
PEOPLE V MCFALL, No. 160117; Court of Appeals No. 349399.
PEOPLE V ROBERT WATTS, No. 160119; Court of Appeals No. 347283.
PEOPLE V SHIGWADJA, No. 160123; Court of Appeals No. 347719.
PEOPLE V JOHN WILSON, No. 160126; Court of Appeals No. 343990.
 ORDERS IN CASES 943
PEOPLE V FEZZEY, No. 160127; Court of Appeals No. 347571.
PEOPLE V LANDERS, No. 160135; Court of Appeals No. 347878.
PEOPLE V BALLARD, No. 160136; Court of Appeals No. 347734.
CITY OF DETROIT V CARMACK’S COLLISON, LLC, No. 160139; Court of
Appeals No. 343496.
PEOPLE V EASTERLING, No. 160140; Court of Appeals No. 348136.
PEOPLE V CARNELL BATES, No. 160141; Court of Appeals No. 347304.
PEOPLE V DARNELL BATES, No. 160155; Court of Appeals No. 347279.

Superintending Control Denied December 23, 2019:

BLACKWARD V ATTORNEY GRIEVANCE COMMISSION, No. 160018.

CAVANAGH, J., did not participate due to her prior service as a member
of the Attorney Grievance Commission.

Reconsideration Denied December 23, 2019:

MARTINEZ V TMF II WATERCHASE, LLC, No. 155197; Court of Appeals

No. 329931. Leave to appeal denied at 504 Mich 967.
MENARD V IMIG, No. 158563; Court of Appeals No. 336220. Summary
disposition order entered at 505 Mich 858.
PEOPLE V CAMPBELL, No. 159111; Court of Appeals No. 345315. Leave
to appeal denied at 504 Mich 957.
WALKER V ATTORNEY GRIEVANCE COMMISSION, No. 159375. Superintend-
ing control denied at 504 Mich 949.
CAVANAGH, J., did not participate due to her prior service as a member
of the Attorney Grievance Commission.
SABADOS V STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, No.
159437; Court of Appeals No. 342088. Leave to appeal denied at 504
Mich 948.
PEOPLE V KARIEM, No. 159452; Court of Appeals No. 347327. Leave to
appeal denied at 504 Mich 948.
PEOPLE V SPENCER, No. 159572; Court of Appeals No. 348890. Leave to
appeal denied at 504 Mich 894.

Leave to Appeal Before Decision by the Court of Appeals Denied Decem-

ber 27, 2019:

SLIS V STATE OF MICHIGAN and A CLEAN CIGARETTE CORPORATION V GOVER-

NOR,Nos. 160431 and 160432; Court of Appeals Nos. 351211 and 351212.
944 505 MICHIGAN REPORTS
MARKMAN, J. (dissenting). I respectfully dissent from this Court’s
decision to deny defendants’ bypass application. Instead, I would grant
defendants’ request for a bypass of the Court of Appeals pursuant to
MCR 7.305(B)(4) and thereby expedite final resolution of this dispute.1
On September 18, 2019, the Michigan Department of Health and
Human Services (DHHS), acting pursuant to MCL 24.248(1) and with
the Governor’s consent, issued emergency rules (rules enacted without
complying with the traditional rulemaking procedures of the Adminis-
trative Procedures Act, MCL 24.201 et seq.) governing the sale and
advertisement of flavored nicotine vapor products in Michigan. The
rules took effect 14 days later. Plaintiffs, retailers of flavored nicotine
vapor products, then brought this action seeking to invalidate the rules
and enjoin their enforcement. On October 15, 2019, the Court of Claims
granted plaintiffs’ motion for a preliminary injunction and enjoined
defendants from enforcing the rules. On October 25, 2019, defendants
filed an application for leave to appeal in the Court of Appeals and a
bypass application for leave to appeal in this Court.
By granting the preliminary injunction, the Court of Claims judge
suspended the implementation of rules enacted under the law by the
executive branch with the specific concurrence of the Governor. It is “a
matter of considerable constitutional consequence when a single judge
delays the implementation of a legislative measure approved by 148
legislators and one governor, each acting on behalf of ‘we the people.’ ”
Council of Organizations & Others for Ed About Parochiaid v Michigan,
501 Mich 1015, 1022 (2018) (MARKMAN, C.J., dissenting).2 And it is also
a matter of considerable constitutional consequence when a single judge
delays the implementation of an executive measure approved by the

1
I would grant under MCR 7.305(B)(4)(a), viewing a delay in the
adjudication of this case as likely to cause “substantial harm” to the
interests of the separation of powers, see Const 1963, art 3, § 2.
However, I note that the values reflected in MCR 7.305(B)(4)(b), expe-
diting appeals from rulings of invalidity of legislative and executive
branch actions, are also implicated here. Indeed, a preliminary injunc-
tion arguably implicates these values to an even greater degree by
suspending presumptively lawful actions enacted by the representative
branches of government in the absence of an actual ruling of constitu-
tional invalidity.
2
In Council of Organizations, the plaintiffs filed suit in the Court of
Claims challenging the constitutionality of MCL 388.1752b, which
allocates funds to provide reimbursement for “actual costs incurred by
nonpublic schools in complying with a health, safety, or welfare require-
ment mandated by a law or administrative rule of this state.” MCL
388.1752b(1). The Court of Claims, in that case as here, granted
plaintiffs’ motion for a preliminary injunction, which prevented the
disbursement of funds under that law. The Court of Appeals and this
Court denied leave to appeal over my dissent.
 ORDERS IN CASES 945
Governor. It is a matter of consequence “for the constitutional architec-
ture of this state,” id. at 1015, in particular, “for our constitutional
system of separated powers[,] when a [judge] enjoins the executive
authority from undertaking an action,” Smith v Dep’t of Human Servs
Dir, 491 Mich 898, 898 (2012) (MARKMAN, J., dissenting). “Such a case
raises a question of ‘considerable delicacy, as it requires one of the
co-ordinate branches of the government to pass its judgment on the acts
of another, and the presumption is that the executive department has
the same desire to keep within constitutional limits as either of the
other two.’ ” Id., quoting Dullam v Willson, 53 Mich 392, 397 (1884).
Because the decision here of the Court of Claims had the effect of
entirely halting the implementation of rules enacted by the executive
branch, it warrants, in my judgment, the most expeditious, and the most
final, review by the highest judicial authority of this state.
This need for expedited review is underscored in the present case by
the fact that the issue may well be rendered moot before this Court even
has an opportunity to address the issue. The rules in dispute are
effective only until April 2, 2020, and the parties’ briefs are not due in
the Court of Appeals until February 3, 2020. This leaves an extremely
short period of time for the Court of Appeals to issue an opinion, an
appeal to be filed in this Court, and this Court to hear arguments,
review the case, and issue a decision. In other words, the rules may well
expire before they have ever been enforced, notwithstanding a presump-
tively valid decision by the Governor of this state to have these rules
enacted. In order to avoid such “government by injunction,” I would
grant defendants’ bypass application. I would do so not necessarily to
reverse the injunction, but to affirm the proposition that the judiciary
must act with the greatest dispatch in resolving the constitutional
validity of actions undertaken by representative public institutions,
where such actions have been enjoined by the judiciary.

Summary Disposition December 30, 2019:

PEOPLE V COLLINS, No. 153733; Court of Appeals No. 331222. Pursuant

to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this
case to the Livingston Circuit Court. The trial court imposed a 30-year
maximum sentence for the defendant’s conviction of unarmed robbery,
MCL 750.530, as enhanced by MCL 769.11, stating that the maximum
is set by statute. It is unclear whether the trial court recognized its
discretion, pursuant to MCL 769.11(1)(a), to impose a lesser maximum
sentence. On remand, the trial court shall either issue an order
clarifying that it deliberately exercised its discretion to impose the
30-year maximum term, or resentence the defendant. In all other
respects, leave to appeal is denied, because we are not persuaded that
the remaining questions presented should be reviewed by this Court.

Leave to Appeal Denied December 30, 2019:

In re JAI SATCHELL-VENTA, MINOR, No. 160531; Court of Appeals No.

347906.
946 505 MICHIGAN REPORTS
Summary Disposition December 30, 2019:

HARDY V SECRETARY OF STATE, No. 160719; Court of Appeals No. 351694.

Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
reverse the order of the Court of Appeals and remand this case to the
Court of Appeals for entry of an order of mandamus. As acknowledged by
the Board of State Canvassers in its brief filed in the related appeal in
Inman v Bd of State Canvassers, Court of Appeals No. 350173, the
reasons given for the recall are the officeholder’s filing of a notice of
diminished capacity in his federal criminal case and the allegedly missed
votes in the House of Representatives. See Defendant’s Court of Appeals
Brief at pp 5-6 (“While the inclusion of a description of the counts of the
indictment was certainly not flattering or helpful to Representative
Inman, the language of the petition does not make the indictment a
reason for the recall.”). The recall petition is proper because the reasons
given for recall in the circulated petitions were not different than the
reasons that were approved by the Board of Canvassers. This Court is not
presented with, and is not passing on, the merits of the officeholder’s
claim of appeal that is currently pending in the Court of Appeals. Court of
Appeals Docket No. 350173. The Court of Appeals shall continue to treat
this matter as a priority. MCR 7.213(C)(4).

Summary Disposition January 2, 2020:

PEOPLE V ISON, No. 160282; Court of Appeals No. 343530. Pursuant to

MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the
judgment of the Court of Appeals and we remand this case to the Court
of Appeals for reconsideration in light of People v Beck, 504 Mich 605
(2019). We do not retain jurisdiction.

Leave to Appeal Denied January 2, 2020:

PEOPLE V RAND GOULD, No. 160142; Court of Appeals No. 347625.

PEOPLE V ROBERT MARTINEZ, No. 160143; Court of Appeals No. 348399.
PEOPLE V GRAM BENTON, No. 160145; Court of Appeals No. 348913.
PEOPLE V SEAN DANIELS, No. 160156; Court of Appeals No. 348638.
PEOPLE V WILLIE GREEN, No. 160159; Court of Appeals No. 337756.
PEOPLE V FRILL, No. 160161; Court of Appeals No. 348194.
PEOPLE V ALBERT WALKER, No. 160162; Court of Appeals No. 347877.
PEOPLE V TYLER WEBB, No. 160172; Court of Appeals No. 349099.
PEOPLE V FINNIE, No. 160173; Court of Appeals No. 349178.
HUDSON V KLEUESSENDORF, No. 160175; Court of Appeals No. 344482.
HANEY V HANEY, No. 160176; Court of Appeals No. 342019.
 ORDERS IN CASES 947
BELSER V EVANS, No. 160181; Court of Appeals No. 349705.
PEOPLE V ARCELL CARTER, No. 160182; Court of Appeals No. 338764.
STOLAJ V FARM BUREAU MUTUAL INSURANCE COMPANY OF MICHIGAN, No.
160188; Court of Appeals No. 348503.
PEOPLE V VANDERMEULEN, No. 160191; Court of Appeals No. 342960.
PEOPLE V CRUDUP, No. 160194; Court of Appeals No. 349293.
PEOPLE V JAMES BAILEY, No. 160197; Court of Appeals No. 347657.
WHITE V MATTHEWS, No. 160198; Court of Appeals No. 348497.
PEOPLE V BEST, No. 160199; Court of Appeals No. 349044.
WHITE V SOUTHEAST MICHIGAN SURGICAL HOSPITAL, No. 160200; Court of
Appeals No. 348552.
PEOPLE V HOOF, No. 160204; Court of Appeals No. 349213.
PEOPLE V AUSTIN, No. 160216; Court of Appeals No. 349109.
GOTTLEBER V COUNTY OF SAGINAW, No. 160217; Court of Appeals No.
336011.
FLATT V DEPARTMENT OF HEALTH AND HUMAN SERVICES, No. 160218; Court
of Appeals No. 347547.
PEOPLE V DEMARIO SIMPSON, No. 160221; Court of Appeals No. 349076.
PEOPLE V SCHOOLCRAFT, Nos. 160225 and 160226; Court of Appeals
Nos. 349287 and 349290.
SOLOMON V CHARLES EGELER RECEPTION AND GUIDANCE CENTER WARDEN,
No. 160227; Court of Appeals No. 349111.
PEOPLE V KYLE RICHARDS, No. 160237; Court of Appeals No. 344161.
PEOPLE V JOSHUA FORD, No. 160238; Court of Appeals No. 349312.
PEOPLE V RUCKES, No. 160247; Court of Appeals No. 342994.
PEOPLE V POWELL, No. 160257; Court of Appeals No. 349590.
PEOPLE V JAKE CUNNINGHAM, No. 160260; Court of Appeals No. 342637.
PEOPLE V STEPHENS, No. 160257; Court of Appeals No. 345187.
PEOPLE V ADAMS, No. 160280; Court of Appeals No. 344238.
PEOPLE V KAELAN ALLEN, No. 160294; Court of Appeals No. 349214.
PEOPLE V REUEBEN JENKINS, No. 160307; Court of Appeals No. 345606.
PEOPLE V CHARESE ARNOLD, No. 160310; Court of Appeals No. 349744.
PEOPLE V GWINN, No. 160314; Court of Appeals No. 349647.
948 505 MICHIGAN REPORTS
PEOPLE V HECK, No. 160316; Court of Appeals No. 349762.
PEOPLE V ACCETTOLA, No. 160317; Court of Appeals No. 348173.
KOZLOWSKI V CHARTER TOWNSHIP OF WATERFORD, No. 160322; Court of
Appeals No. 346029.
PEOPLE V DIANE STEVENS, No. 160323; Court of Appeals No. 349571.
PEOPLE V RONALD BENNETT, No. 160326; Court of Appeals No. 350023.
In re TIPPINS, No. 160329; Court of Appeals No. 349398.
PEOPLE V NORFLEET, No. 160365; Court of Appeals No. 348694.
PEOPLE V MARSHA SPRINGER, No. 160367; Court of Appeals No. 348963.
PEOPLE V TERREON SMITH, No. 160370; Court of Appeals No. 348459.
PEOPLE V JIMMIE COLE, No. 160373; Court of Appeals No. 349688.
PEOPLE V ANTHONY SPRINGER, No. 160401; Court of Appeals No. 348840.
GRIEVANCE ADMINISTRATOR V BECK, No. 160430.
CAVANAGH, J., did not participate due to her prior service as a member
of the Attorney Grievance Commission.

Superintending Control Denied January 2, 2020:

HIXON V ATTORNEY GRIEVANCE COMMISSION, No. 160170.

CAVANAGH, J., did not participate due to her prior service as a member
of the Attorney Grievance Commission.
WERTH V ATTORNEY GRIEVANCE COMMISSION, No. 160184.
CAVANAGH, J., did not participate due to her prior service as a member
of the Attorney Grievance Commission.
AMATO V ATTORNEY GRIEVANCE COMMISSION, No. 160248.
CAVANAGH, J., did not participate due to her prior service as a member
of the Attorney Grievance Commission.
AYERS V ATTORNEY GRIEVANCE COMMISSION, No. 160295.
CAVANAGH, J., did not participate due to her prior service as a member
of the Attorney Grievance Commission.

Application for Leave to Appeal Dismissed January 2, 2020:

WHITE V EDS CARE MANAGEMENT, LLC, No. 160298; Court of Appeals

No. 349018. On order of the Court, the application for leave to appeal the
August 29, 2019 order of the Court of Appeals and the defendants’ motion
to dismiss are considered. The defendants’ motion to dismiss is granted
and the application is dismissed, because the plaintiff is a vexatious
litigator under MCR 7.316(C)(3). We direct the Clerk of this Court not to
 ORDERS IN CASES 949
accept any further filings from the plaintiff in this matter unless the
plaintiff has obtained leave and has submitted the filing fee required by
MCR 7.319.

Leave to Appeal Denied January 3, 2020:

In re RIVERA-IZAGUIRRE/FERNANDEZ/MENDEZ-IZAGUIRRE, MINORS, No.

160544; Court of Appeals No. 348229.

Leave to Appeal Denied January 10, 2020:

IRIS LLC V CITY OF ROYAL OAK, No. 159496; Court of Appeals No.
342812.
PEOPLE V SINNETT, No. 159871; Court of Appeals No. 336775.
CAVANAGH, J. (concurring). I concur in the Court’s order denying leave
to appeal in this case but write separately to identify a serious trial
court error, which would warrant reversal of defendant’s conviction
were it not rendered harmless by the overwhelming evidence of defen-
dant’s guilt.
Defendant was tried before a jury for armed robbery, possession of a
firearm during the commission of a felony, and unlawfully driving away
a motor vehicle. After the prosecution rested, defense counsel informed
the trial court that defendant had intended to testify but had been
threatened in the jail by an individual who would likely be called as a
rebuttal witness. According to defendant, a man named Derrick Johnson
threatened him “don’t be a rat” because defendant planned to implicate
an associate of Johnson’s. Defense counsel asked for time to confer with
defendant about whether he still intended to testify. Following a brief
off-the-record discussion, defense counsel made a record:

[Defense Counsel]: Okay. And as we stand here today and you

are here to make your final decision, do you wish to testify or do
you wish to remain silent?

The Defendant: It would be better for me to stay silent.

[Defense Counsel]: Has anyone promised you or threatened

you to get you to make this decision?

The Defendant: Besides Derrick Johnson, no.

After that, the trial court also questioned defendant about the
alleged threat. Defendant elected not to testify and was ultimately
found guilty as charged. Defendant’s convictions were affirmed on
appeal; the Court of Appeals concluded that defendant waived his right
to testify and there was no plain error affecting his substantial rights.
A defendant’s right to testify is grounded in the Fifth, Sixth, and
Fourteenth Amendments of the United States Constitution. People v
950 505 MICHIGAN REPORTS
Bonilla-Machado, 489 Mich 412, 419 (2011). The right to testify is
“essential to due process of law in a fair adversary process.” Rock v
Arkansas, 483 US 44, 51 (1987) (quotation marks and citation omitted).
In fact, a defendant’s right to present his own version of events is
fundamental, and sometimes “the most important witness for the
defense” is the defendant himself. Id. at 52. A defense attorney may
counsel a defendant against testifying as a matter of sound trial
strategy; however, the ultimate decision to testify rests solely with the
defendant. Bonilla-Machado, 489 Mich at 419. In Michigan, the trial
court is not required to determine whether a defendant waives the right
to testify, and if the defendant “decides not to testify . . . the right will be
deemed waived.” People v Simmons, 140 Mich App 681, 685 (1985)
(quotation marks and citation omitted).
In the Court of Appeals, defendant argued that that trial court failed
to take sufficient steps to protect his constitutional right to testify. I
agree. The record shows that defendant repeatedly informed the trial
court that he believed he had been threatened not to testify, but the trial
court did nothing about it:

The Court: All right. Mr. Sinnett, this is your decision as to

whether you want to testify or not. You’ve talked to your attorney
at length prior to this case starting, during this week, addition-
ally this morning. Has anyone promised you or threatened you?

The Defendant: I actually, ma’am, I had intended on taking the

stand the whole time until this morning. I was—I had made my
attorney aware that I had been threatened in the past. That my
paperwork had been stolen and she knows of it and I only
recently—
The Court: What, what was the threat? What was the threat
and where did it come from?
The Defendant: The threat came from a black guy they call DJ
that was in your holding tank . . . .

* * *

The Court: What, what was the threat?

The Defendant: The threat was don’t be a rat. Don’t be a rat.
I know Duane and I was like—

* * *

The Court: It is up to you to decide whether you want to testify

or not. If you think it’s in your best interest to testify and say
whatever it is that you want to say in front of this jury then you
do it. If, if you don’t want to do it, you don’t do it. It is your
decision ultimately.
 ORDERS IN CASES 951
You’ve had plenty of time to speak with your attorney correct?

The Defendant: Yes ma’am.

The Court: Okay. And so you know you have an absolute [sic]
not to testify.

The Defendant: I do.

The Court: And that I’m going to instruct the jury that they are
to not take that into account whatsoever in their deliberations
because you have a right not to testify, you understand that?

The Defendant: Yes ma’am.

The Court: Okay. You also have a right to testify if you want to.
Okay. So when [defense counsel] is asking you whether anyone
has promised you anything or threatened you you’re indicating to
me that you’re deciding not to testify because of something you
heard from another person that’s in custody, correct?

The Defendant: That the prosecution plans to call against me

as a rebuttal.

The Court: It doesn’t matter—that doesn’t matter. You’re

indicating the reason why you’re not going to testify is because
someone else that’s in custody—

The Defendant: Yes.

The Court: —has accused or, or said to you don’t be a rat.

* * *

The Court: Okay. All that aside, I don’t know any of this and I
don’t know the truth to any of that. Okay. So all I’m hearing is
that someone is accusing you of potentially if you testify that you
might be a rat, okay. Correct?
The Defendant: Right.
The Court: Okay. There have been no threats other than that,
other than those statements, correct?
The Defendant: I mean that’s the most serious one, yes.
The Court of Appeals suggested that this was sufficient to protect
defendant’s constitutional rights, outlining:
Here, the trial court provided defendant the opportunity to
consult with counsel before making a decision whether to testify.
The court then placed defendant under oath and questioned him
about the alleged threat. Defendant agreed on the record that he
952 505 MICHIGAN REPORTS
had sufficient time to talk with counsel and that he was aware
that he had an absolute right to testify. Indeed, on appeal
defendant does not dispute that it was his decision not to testify.
[People v Sinnett, unpublished per curiam opinion of the Court of
Appeals, issued May 9, 2019 (Docket No. 336775), p 6.]

I fail to see how any of this procedure safeguarded defendant’s right

to testify. Consulting with his attorney and putting the threat on the
record did nothing to resolve the threat. The trial court did not hold an
evidentiary hearing to ascertain if defendant’s allegations were credible,
nor did it assure defendant that it would take appropriate curative
action if he wished to exercise his constitutional rights. The court could
have, for example, ensured that defendant would not be placed in a
holding cell with the man who allegedly imperiled his safety. Although
I recognize that in Michigan the trial court is under no duty to confirm
on the record that a waiver of the right to testify is made intelligently
and knowingly, Simmons, 140 Mich App at 684, I believe that when the
trial court is informed that the free exercise of a constitutional right is
at stake, its duty to protect that right is clearly implicated.1
Next, I am troubled by the Court of Appeals’ conclusion that defendant
waived his constitutional right to testify. A waiver is the “intentional
relinquishment or abandonment of a known right.” People v Carines, 460
Mich 750, 762 n 7 (1999) (quotation marks and citation omitted).
Furthermore, “[i]ntelligent waiver, of course, is made to depend upon the
considered choice of defendant . . . .” People v McKinley, 383 Mich 529,
536 (1970). A waiver of a constitutional right based on intimidation or
coercion is invalid as it is not a freely made choice. See People v Akins, 259
Mich App 545, 564 (2003). Taking defendant at his word—given that, as
noted, the trial court failed to meaningfully delve into the nature and
circumstances of the threats or ascertain whether the threats were
credible—his decision not to testify does not appear to be one made upon
considered choice. In my view, the choice to stay silent or to exercise a
right and face potential physical harm2 is no choice at all.

1
I find instructive the following holding from the Court of Appeals of
Alaska:
A trial judge faced with a defendant who, in the course of this
process, voices fears of reprisal as a consequence of testifying—
even vague and insubstantial fears—must do everything realis-
tically possible to delve into the issue and elicit an informed,
voluntary choice. To this end, the judge should invite a full
disclosure by the defendant and the defendant’s counsel of any
purported threat, offer to invoke the full weight of the court’s
protective powers against the source of any threat, and conduct a
thorough inquiry in response to any information disclosed. [Knix
v State, 922 P2d 913, 919 (Alas App, 1996).]
2
At defendant’s posttrial Ginther hearing, he explained that in his
opinion being labeled “a rat” would be a “death sentence” in the county
jail. See People v Ginther, 390 Mich 436 (1973).
 ORDERS IN CASES 953
I also disagree with the Court of Appeals’ conclusion that defendant
failed to preserve this issue since he “did not argue in the trial court that
he was denied his constitutional right to testify on his own behalf . . . .”
Sinnett, unpub op at 5. The record clearly shows that both defense
counsel and the trial court put defendant’s “waiver” of his constitutional
right to testify on the record. In fact, the trial court’s questioning of
defendant on this topic spans seven pages of the transcript. “The
purpose of the appellate preservation requirements is to induce litigants
to do what they can in the trial court to prevent error and eliminate its
prejudice, or to create a record of the error and its prejudice.” People v
Mayfield, 221 Mich App 656, 660 (1997). Other than using the word
“constitutional” when informing the trial court that he wished to testify
but would not because he had allegedly been threatened, I am unsure
what else defendant could have done to preserve this issue or why the
Court of Appeals would require more. Defendant raised this issue, a
record was created, and the trial court had an opportunity to alleviate
the prejudice. Because this issue was preserved, the Court of Appeals
erred by reviewing the claim for plain error instead of for harmless
error.
All this aside, however, I join the Court’s denial order because even
under the appropriate harmless-error standard of review, see People v
Anderson (After Remand), 446 Mich 392, 405-406 (1994), I cannot
conclude that defendant is entitled to relief. Defendant visited the
victim’s home the day before the robbery and earlier on the same day as
the robbery. The victim was able to identify him as was an employee of
the victim’s husband. On the afternoon of the robbery, defendant visited
the home acting suspiciously; for example, he offered to buy the home for
a price that exceeded its appraised value, asked to come inside and look
around, and asked the victim why she was not wearing her wedding
ring. While speaking with defendant, the victim noted that defendant
was wearing shoes that did not match the rest of his professional attire.
During the robbery, the victim observed that the suspect had a similar
physical build to defendant and that he was wearing the same shoes
that defendant had worn when he visited her home earlier that day. In
addition, the victim’s stolen Jeep was discovered in a parking lot about
one-half mile from her home. Surveillance video footage from that
parking lot showed that just prior to the robbery a black Ford F-150
backed into that parking lot and a man exited the truck. Approximately
15 minutes later, the victim’s Jeep was shown pulling up next to the
F-150. The driver exited the Jeep and got into the F-150 and drove away.
Defendant later admitted to police that he drove a black Ford F-150.
Furthermore, defendant’s phone number and that of his girlfriend,
whose phone had an area code from Arizona, were linked to phone calls
associated with the crime. Finally, defendant provided police with
information about a man named Duane Butler. When a search was
conducted at Butler’s residence, the victim’s credit cards were found.
Overall, the prosecution presented substantial and overwhelming evi-
dence that defendant was the perpetrator of the charged crimes, and I
954 505 MICHIGAN REPORTS
cannot conceive what defendant could have testified to that would have
altered the verdict.3

NYLAAN V WOLVERINE WORLD WIDE, INC, No. 160675; Court of Appeals

No. 351697.

Leave to Appeal Before Decision by the Court of Appeals Denied

January 10, 2020:

NYLAAN V WOLVERINE WORLD WIDE, INC, No. 160682; Court of Appeals

No. 351895. By order of December 18, 2019, this Court granted imme-
diate consideration and a stay of the Kent Circuit Court’s November 26,
2019 order compelling the defendant to produce documents withheld as
privileged. On order of the Court, the application for leave to appeal the
December 11, 2019 order of the Court of Appeals is considered, and it is
denied, because we are not persuaded that the questions presented
should now be reviewed by this Court. The stay ordered on December 18,
2019, is dissolved. The motion for waiver of requirement to move for stay
in the trial court is denied as moot.

Summary Disposition January 17, 2020:

PEOPLE V TURNER, No. 158068; Court of Appeals No. 336406. On order

of the Court, leave to appeal having been granted and the briefs and oral
arguments of the parties having been considered by the Court, we reverse
the May 17, 2018 judgment of the Court of Appeals, and we remand this
case to the Wayne Circuit Court to reinstate the December 21, 2016
judgment of sentence.
The Court of Appeals erred to the extent it held that MCL 769.25a
does not allow a defendant to be resentenced on concurrent sentences.
People v Turner, unpublished per curiam opinion of the Court of
Appeals, issued May 17, 2018 (Docket No. 336406), p 3. Section 25a
creates a resentencing procedure for sentences in violation of Miller v
Alabama, 567 US 460 (2012), and Montgomery v Louisiana,
577 US 190 (2016). Under that procedure, the prosecuting attorney was
required to “provide a list of names to the chief circuit judge of that
county of all defendants who are subject to the jurisdiction of that court
and who must be resentenced under [Montgomery].” MCL 769.25a(4)(a).
Once that occurred, the defendant was not required to file a separate
motion for relief from judgment in order to seek resentencing on his
concurrent sentence for assault with intent to murder.
A sentence is invalid if it is “based upon . . . a misconception of
law . . . .” People v Miles, 454 Mich 90, 96 (1997). In the Miller context,

3
In addition, it is clear from a review of the Ginther hearing
transcript that the trial court did not find defendant credible, and this
strengthens my conclusion that any testimony provided to the jury
would not have been likely to help defendant’s cause.
 ORDERS IN CASES 955
a concurrent sentence for a lesser offense is invalid if there is reason to
believe that it was based on a legal misconception that the defendant
was required to serve a mandatory sentence of life without parole on the
greater offense. Accordingly, at a Miller resentencing, the trial court
may exercise its discretion to resentence a defendant on a concurrent
sentence if it finds that the sentence was based on a legal misconception
that the defendant was required to serve a mandatory sentence of life
without parole on the greater offense.
KROLL V DEMORROW, No. 159413; Court of Appeals No. 341895. On
order of the Court, the application for leave to appeal the February 26,
2019 judgment of the Court of Appeals is considered.
The issue before us is whether the plaintiffs, Loren Kroll’s legal
guardians, presented a genuine issue of material fact as to whether
Delores DeMorrow’s alleged failure to activate the bus’s caution lights
was a cause in fact of Loren’s injuries. When reviewing a motion for
summary disposition under MCR 2.116(C)(10), the evidence must be
viewed in the light most favorable to the nonmoving party. Odom v
Wayne Co, 482 Mich 459, 466-467 (2008). Summary disposition is
appropriate only if there is no genuine issue regarding any material fact
and the moving party is therefore entitled to judgment as a matter of
law. Id. at 467. Factual causation requires showing that “but for” the
defendant’s actions, the plaintiff’s injury would not have occurred. Ray
v Swager, 501 Mich 52, 63 (2017).
Viewed in the light most favorable to the plaintiffs, there was
sufficient evidence to bar summary disposition on the factual-cause
element of the plaintiffs’ negligence claim. The driver of the truck that
struck Loren testified that it was his habit to slow to a stop when he saw
a bus’s caution lights activated. He further testified that had the bus’s
caution lights been on in this case, he would have stopped. The Court of
Appeals erred when it found that this testimony was mere speculation
and that it was not proven that DeMorrow’s alleged failure to activate
the caution lights was a factual cause of Loren’s injuries. The truck
driver’s testimony created a genuine issue of material fact as to whether
the accident would have occurred but for DeMorrow’s failure to turn on
the lights because the truck driver would have slowed to a stop before he
hit Loren. Relying at least in part on its erroneous factual-cause
analysis, the panel then concluded that “DeMorrow’s failure to activate
the caution lights cannot be the proximate cause of the accident.” Kroll
v DeMorrow, unpublished per curiam opinion of the Court of Appeals,
issued February 26, 2019 (Docket No. 341895), p 3. Therefore, pursuant
to MCR 7.305(H)(1), in lieu of granting leave to appeal, we reverse the
judgment of the Court of Appeals as to cause in fact, vacate the
judgment of the Court of Appeals as to proximate cause, and remand
this case to that court for further proceedings not inconsistent with this
order.
FARM BUREAU GENERAL INSURANCE COMPANY OF MICHIGAN V BENEBUILDING,
LLC, No. 160713; Court of Appeals No. 351305. Pursuant to MCR
956 505 MICHIGAN REPORTS
7.305(H)(1), in lieu of granting leave to appeal, we remand this case to
the Court of Appeals for consideration as on leave granted. We do not
retain jurisdiction.

Leave to Appeal Denied January 17, 2020:

In re ROBERT E WHITTON REVOCABLE TRUST, No. 158408; Court of

Appeals No. 337828. On January 8, 2020, the Court heard oral argu-
ment on the application for leave to appeal the August 9, 2018 judgment
of the Court of Appeals. On order of the Court, the application is again
considered, and it is denied, because we are not persuaded that the
questions presented should be reviewed by this Court.
TOMASIK V STATE OF MICHIGAN, No. 159715; reported below: 327 Mich
App 660.
MCCORMACK C.J. (concurring). I concur in the order denying leave to
appeal but write separately to highlight the troubling—and perhaps
unforeseen by the Legislature—outcome in this case. In 2015, this Court
reversed the plaintiff’s convictions for first-degree criminal sexual
conduct and remanded for a new trial because the trial court had
committed an evidentiary error by admitting a video recording of the
plaintiff’s police interview and that error rose to the level of plain error.
People v Tomasik, 498 Mich 953 (2015). The plaintiff had also sought
relief based on a claim of new evidence, but this Court did not address
that claim because we granted relief on the evidentiary error. Id.
(stating that “[i]n light of this disposition, we decline to address the
other issues presented in our order granting leave to appeal”).
After being acquitted by a jury following his new trial, the plaintiff
sought compensation under the Wrongful Imprisonment Compensation
Act (WICA), MCL 691.1751 et seq. The Court of Claims granted
summary disposition to the state, and the Court of Appeals affirmed on
the ground that the plaintiff’s convictions had not been reversed on the
basis of new evidence under MCL 691.1755(1)(c).
While I tend to agree with the Court of Appeals that the statutory
language does not entitle this plaintiff to compensation, I question
whether this result is consistent with the Legislature’s intent. In
enacting the WICA, the Legislature intended wrongly incarcerated
individuals to seek compensation when their convictions are voided and
they are exonerated of all charges on the basis of new evidence. If the
sole basis for the plaintiff’s claim was that he is entitled to compensation
because of the trial court’s evidentiary error, I would agree that the
Legislature did not intend to provide for compensation under such
circumstances.
But here, there’s more: as noted, the plaintiff sought relief based on
the evidentiary error and new evidence. Had he brought only the
new-evidence questions to this Court, and not the other trial errors, he’d
likely be eligible for WICA compensation. Yet because his trial was
unfair for reasons in addition to that it did not include the new evidence,
he’s out of luck? Under these unique circumstances, I encourage the
 ORDERS IN CASES 957
Legislature to consider whether it intended to exclude individuals such
as the plaintiff—call them “new evidence plus-ers”—from the WICA.
CAVANAGH, J., joins the statement of MCCORMACK, C.J.
PEOPLE V DEBRUYNE, No. 160148; Court of Appeals No. 346534.
ZAHRA, J. (dissenting). I disagree with this Court’s decision to deny
the prosecution’s application. On January 26, 2018, defendant was
driving his motorcycle in Napoleon Township. His ex-wife, Ann Sahadi,
was riding on the back and neither was wearing a helmet. It was an
unseasonably warm day and the road was dry. Defendant was traveling
70 to 80 miles per hour on Austin Road, which is a two-lane road with a
speed limit of 55 miles per hour in a remote farm area. He weaved across
his lane, tailgated a car in front of him, tried to pass a car in front of him
on the gravel shoulder, and ultimately passed that car by crossing the
double yellow center line. At approximately 5:30 p.m., he failed to
negotiate a curve in the road and the motorcycle crashed. Ms. Sahadi
suffered a skull fracture and broken neck and died at the scene.
Defendant was rushed by ambulance to Henry Ford Allegiance Hospital
(HFA) in Jackson. Shortly after the accident, a man who lived at a
nearby home who had watched defendant speed by found a whiskey
bottle on his property in a roadside ditch. The bottle had not been there
previously, and he brought the bottle to the accident scene.
Officer Justin Boatman of the Napoleon Township Police Depart-
ment interviewed the first responders to the scene, including the
firefighters and paramedics, and asked whether they smelled any
intoxicants at the scene. They responded that both the driver and
passenger of the motorcycle smelled of intoxicants. Boatman also
smelled alcohol on the female victim when he examined her.
Boatman drafted an affidavit for a search warrant authorizing a
blood draw. The affidavit states in pertinent part:
2. That the affiant has determined through personal contact
with witnesses and/or personal observations at the scene, that
Dail Glenn Debruyne was the operator of a motor vehicle upon a
public highway, or other place open to the general public within
the state.
3. That the affiant has personally observed the above named
operator and/or believes said person to be under the influence of
alcohol, or a controlled substance, or both, or has an unlawful
blood alcohol level, based upon the following observation: De-
bruyne was the driver of a motorcycle involved in fatal accident in
which his female passenger was killed (Ann Marie Sahadi).
Witness observed Debruyne driving motorcycle [in a] reckless
manner, speeding E/B Austin Rd. Debruyne is at HFA being
treated for severe injury[.]

A magistrate signed the order at 8:00 p.m. A blood sample was taken
and a subsequent test of that sample showed a blood alcohol content
(BAC) of 0.136. Defendant had two prior drunk-driving convictions.
Defendant filed a motion to suppress evidence of the blood test
results. In an order dated October 15, 2018, the circuit court denied the
958 505 MICHIGAN REPORTS
motion. Defendant filed a motion for reconsideration, which was denied
on November 14, 2018. Defendant sought leave to file an interlocutory
appeal in the Court of Appeals and sought immediate consideration. On
January 10, 2019, that court granted defendant’s motion for immediate
consideration, but denied leave to appeal “for failure to persuade the
Court of the need for immediate appellate review.”1 Defendant appealed
in this Court, and we remanded to the Court of Appeals as on leave
granted.2 A panel of the Court of Appeals reversed the circuit court’s
decision, concluding that “[t]he issuing judge could not reach an inde-
pendent finding that probable cause existed based on the information
provided and the resultant warrant was invalid.”3 The panel also
concluded that the defendant’s BAC results must be excluded from trial
because Officer Boatman’s reliance on the warrant was not in good faith.
Specifically, the panel concluded that “[t]he affidavit in this case was so
‘bare bones’ and ‘lacking in indicia of probable cause’ that no ‘reasonably
well trained officer’ could have been believed [sic] the warrant was
valid.”4
The prosecution now appeals in this Court. When a warrant request
is based solely on an affidavit, that affidavit must establish probable
cause on its face.5 Conclusory statements by the officer will not suffice.6
The affidavit must state the facts that justify drawing the asserted
conclusions.7
But this Court reviews a magistrate’s decision to issue a warrant to
determine whether a reasonably cautious person could have believed
that there was a substantial basis for finding probable cause.8 The Court
must look at the specific facts underlying the probable cause determi-
nation and “must ensure that the magistrate’s decision is based on
actual facts—not merely the conclusions of the affiant.”9

1
People v Debruyne, unpublished order of the Court of Appeals,
entered January 10, 2019 (Docket No. 346534).
2
People v DeBruyne, 503 Mich 982 (2019). The discrepancies in the
capitalization within defendant’s last name reflect the way his name
was spelled in the opinions and orders at issue.
3
People v DeBruyne, unpublished per curiam opinion of the Court of
Appeals, issued July 11, 2019 (Docket No. 346534), p 4.
4
Id. at 5.
5
Whitley v Warden, Wyoming State Penitentiary, 401 US 560, 564-566
(1971).
6
Illinois v Gates, 462 US 213, 239 (1983).
7
People v Rosborough, 387 Mich 183, 199 (1972).
8
People v Sloan, 450 Mich 160, 168 (1995), overruled in part on other
grounds by People v Hawkins, 468 Mich 488 (2003).
9
Id. at 168-169.
 ORDERS IN CASES 959
I disagree with the panel’s conclusion that “[t]he warrant affidavit in
this case was woefully deficient.”10 The panel explained that “[a] person
who is in an accident after driving in a reckless manner and speeding
may be intoxicated. However, there are endless other explanations for
such behavior, including road rage, showing off, tardiness, or an
emergency.”11 I admit these examples may also explain such behavior,
but I believe that Officer Boatman’s explanation is the most likely
explanation of the behavior. Officer Boatman arrived at the scene to find
a crashed motorcycle, a deceased passenger reeking of alcohol, and
reports from witnesses that leading up to the accident defendant was
operating the motorcycle in a reckless manner and speeding. Officer
Boatman testified that defendant was not in a position to consent to a
blood draw. All of this information in some manner was stated in a
sworn affidavit that was provided to a neutral magistrate who signed
the warrant. Contrary to the panel’s suggestion, the affidavit did not
provide “ ‘[u]nconfirmed reports of driving without a seatbelt or slightly
over the speed limit, for example, [that] are so tenuously connected to
drunk driving that a stop on those grounds would be constitutionally
suspect.’ ”12 The affidavit provides a more descriptive narrative that
most people, let alone a reasonably trained police officer, would accept as
a substantial basis to believe that defendant was intoxicated.13
Further, even if the affidavit was not sufficient to establish probable
cause, the officer relied in good faith on the magistrate signing it.14
“Good faith” is less demanding than probable cause.15 In this case, the

10
DeBruyne, unpub op at 4.
11
Id.
12
Id., quoting Navarette v California, 572 US 393, 402 (2014).
13
Defendant relies heavily on Sloan, 450 Mich 160, overruled on other
grounds by Hawkins, 468 Mich 488. There, the defendant was involved in
a fatal car accident and taken to a hospital. Sloan, 450 Mich at 163-164.
The police obtained a search warrant for a sample of the defendant’s
blood. Id. at 164. The affidavit stated only that the defendant appeared
intoxicated. The Court in that case held that the affidavit “plainly failed
to provide any basis to sustain a conclusion that probable cause existed.”
Id. at 171. The claim that it “appeared” to the officer that the defendant
was “under the influence of intoxicating liquor” was “a mere conclusion or
opinion of the affiant,” devoid of any articulable facts to support it. Id. The
Court found that under the circumstances, “it would be impossible for the
magistrate to have independently concluded that there was probable
cause to search.” Id. In my view, Sloan is distinguishable because in this
case there are additional facts stated in the affidavit apart from the
conclusion that defendant appeared intoxicated.
14
People v Goldston, 470 Mich 523, 526 (2004); United States v
Abboud, 438 F3d 554, 578 (CA 6, 2006), cert den 549 US 976 (2006).
15
United States v Rose, 714 F3d 362, 367 (CA 6, 2013), cert den 571
US 910 (2013).
960 505 MICHIGAN REPORTS
panel held in regard to good faith as follows: “Finding indicia of probable
cause in the current affidavit would permit the good-faith exception to
swallow the exclusionary rule whole; every single motor vehicle acci-
dent, no matter the circumstances, would conceivably result in the
issuance of a warrant to draw blood to test for intoxication.”16 This is not
analysis; it’s hyperbole. Here, at the least, the affidavit indicates that
defendant was driving recklessly, and reckless driving often results from
impairment of the operator’s abilities due to intoxicants. Officer Boat-
man obviously could have included several facts to bolster the probable
cause stated in the affidavit. He could have mentioned that first
responders informed him that defendant smelled of alcohol. He also
could have mentioned that the victim smelled of alcohol and that it was
likely that defendant had drunk from the bottle of whiskey the neighbor
found on his lawn. Perhaps he could have elaborated on the reckless
conduct described to him, for instance, that defendant was tailgating
other cars and attempting to pass vehicles on the gravel shoulder of the
road. But his failure to elaborate in his affidavit does not evince bad
faith. Indeed, it is commonly said that one should never attribute to
malice that which can be adequately explained by incompetence. After
reviewing Boatman’s preliminary examination testimony, I agree with
the circuit court that there is no question that Boatman relied on the
warrant in good faith. Accordingly, I would reverse the Court of Appeals’
judgment and reinstate the circuit court’s order denying defendant’s
motion to suppress.

Leave to Appeal Denied January 22, 2020:

CHEYNE V BOLES, No. 159838; Court of Appeals No. 343495.

BERNSTEIN, J., did not participate because he has a family member
with an interest that could be affected by the proceeding.
PEOPLE V DALRYMPLE, No. 160287; Court of Appeals No. 349614.

Summary Disposition January 23, 2020:

MAITLAND V JASKIERNY, No. 160137; Court of Appeals No. 348216. On

order of the Court, the motion to strike is granted. The application for
leave to appeal the July 11, 2019 order of the Court of Appeals is
considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave
to appeal, we remand this case to the Court of Appeals for consideration
as on leave granted. We further order that the trial court proceedings
are stayed pending the completion of that appeal. On motion of a party
or on its own motion, the Court of Appeals may modify, set aside, or place
conditions on the stay if it appears that the appeal is not being
vigorously prosecuted or if other appropriate grounds appear. We do not
retain jurisdiction.

16
DeBruyne, unpub op at 5.
 ORDERS IN CASES 961
MARKEL V WILLIAM BEAUMONT HOSPITAL, No. 160655; Court of Appeals
No. 350655. On order of the Court, the motion for immediate consider-
ation is granted. The application for leave to appeal the November 6,
2019 order of the Court of Appeals is considered and, pursuant to MCR
7.305(H)(1), in lieu of granting leave to appeal, we remand this case to
the Court of Appeals for consideration as on leave granted. The motion
for stay is granted. Trial court proceedings are stayed pending the
completion of that appeal. On motion of a party or on its own motion, the
Court of Appeals may modify, set aside, or place conditions on the stay
if it appears that the appeal is not being vigorously prosecuted or if other
appropriate grounds appear. We do not retain jurisdiction.

Summary Disposition January 24, 2020:

PEOPLE V JAMAL BENNETT, No. 157936; Court of Appeals No. 328759.

On December 11, 2019, the Court heard oral argument on the applica-
tion for leave to appeal the April 17, 2018 judgment of the Court of
Appeals. On order of the Court, the application is again considered.
MCR 7.305(H)(1). In lieu of granting leave to appeal, we reverse the
judgment of the Court of Appeals as to its conclusion that defendant
failed to show that admission of the rap videos was outcome-
determinative.
“[A] defendant has the burden of establishing that it is more probable
than not that the error in question ‘undermined the reliability of the
verdict,’ thereby making the error ‘outcome determinative.’ ” People v
Snyder, 462 Mich 38, 45 (2000), quoting People v Lukity, 460 Mich 484,
495-496 (1999) (brackets omitted). The Court of Appeals here concluded
that admission of the rap videos was not outcome-determinative be-
cause several witnesses had identified defendant as the shooter. If
defendant’s theory of the case had been one of misidentification, then
the overwhelming weight of the evidence demonstrating that defendant
shot the victim may well have compelled the conclusion that admission
of the rap videos was not outcome-determinative. However, defendant
advanced a self-defense and a defense-of-others theory, supported
largely by Sammie Butler-Coleman’s testimony that the victim and
another man had been beating defendant’s friend at the time defendant
fired the fatal shots. Thus, defendant’s state of mind, not his identity,
was the principal question before the jury. And defendant has sustained
his burden of showing that, viewing the trial as a whole, admission of
the rap videos undermined the reliability of the verdict. These videos
portrayed defendant as a ruthless and menacing threat to the commu-
nity who would shoot upon the least provocation. Further, while other
evidence in the record discounted defendant’s defense-of-others theory,
the prosecutor relied heavily upon the videos to establish defendant’s
state of mind and to satisfy the state’s burden of overcoming defendant’s
prima facie claim that he shot in defense of another. To this point, the
prosecutor focused a substantial portion of his closing argument upon
the videos, replaying clips of them and drawing comparisons between
the lyrics of songs in the videos and the shooting. Finally, the trial
court’s instruction to the jury that it could rely upon the videos in
962 505 MICHIGAN REPORTS
assessing defendant’s motive and intent may well have exacerbated the
prejudice caused by admission of the videos.
For the aforementioned reasons, we vacate defendant’s convictions
and remand this case to the Kent Circuit Court for further proceedings
not inconsistent with this order.

Orders Granting Oral Argument in Cases Pending on Application for

Leave to Appeal Entered January 24, 2020:

DETROIT ALLIANCE AGAINST THE RAIN TAX V CITY OF DETROIT, No. 158852;
Court of Appeals No. 339176. On order of the Court, the motion for leave
to file supplemental authority is granted. The application for leave to
appeal the November 6, 2018 judgment of the Court of Appeals is
considered. We direct the Clerk to schedule oral argument on the
application. MCR 7.305(H)(1).
The appellants shall file a supplemental brief within 42 days of the
date of this order addressing whether the Court of Appeals erred in
concluding that Bolt v City of Lansing, 459 Mich 152, 164 (1998), is
distinguishable from this case on the basis that Detroit’s sewer system
is a combined system rather than a separate storm and sanitary sewer
system. Const 1963, art 9, § 31. In addition to the brief, the appellants
shall electronically file an appendix conforming to MCR 7.312(D)(2). In
the brief, citations to the record must provide the appendix page
numbers as required by MCR 7.312(B)(1). The appellees shall file a
supplemental brief within 21 days of being served with the appellants’
brief. The appellees shall also electronically file an appendix, or in the
alternative, stipulate to the use of the appendix filed by the appellants.
A reply, if any, must be filed by the appellants within 14 days of being
served with the appellees’ brief. The parties should not submit mere
restatements of their application papers.
Trappers Properties, et al., is invited to file a brief amicus curiae.
Other persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae.
PEOPLE V DEXTER TAYLOR, No. 159612; Court of Appeals No. 340028. On
order of the Court, the application for leave to appeal the March 26,
2019 judgment of the Court of Appeals is considered. We direct the Clerk
to schedule oral argument on the application. MCR 7.305(H)(1).
We further order the Wayne Circuit Court, in accordance with
Administrative Order 2003-03, to determine whether the defendant is
indigent and, if so, to appoint William Branch, if feasible, to represent
the defendant in this Court. If this appointment is not feasible, the trial
court shall, within the same time frame, appoint other counsel to
represent the defendant in this Court.
The appellant shall file a supplemental brief within 42 days of the
date of the order appointing counsel addressing: (1) whether the
other-acts evidence offered to show a common plan, scheme, or system
contained a “striking similarity” to the charged act as required by People
v Denson, 500 Mich 385, 403 (2017); (2) whether the other-acts evidence
 ORDERS IN CASES 963
was admissible under the “doctrine of chances,” see People v Mardlin,
487 Mich 609, 616-617 (2010); and (3) if the evidence was not offered for
a proper purpose, whether its admission was harmless.
In addition to the brief, the appellant shall electronically file an
appendix conforming to MCR 7.312(D)(2). In the brief, citations to the
record must provide the appendix page numbers as required by MCR
7.312(B)(1). The appellee shall file a supplemental brief within 21 days of
being served with the appellant’s brief. The appellee shall also electroni-
cally file an appendix, or in the alternative, stipulate to the use of the
appendix filed by the appellant. A reply, if any, must be filed by the
appellant within 14 days of being served with the appellee’s brief. The
parties should not submit mere restatements of their application papers.
The Prosecuting Attorneys Association of Michigan and the Criminal
Defense Attorneys of Michigan are invited to file briefs amicus curiae.
Other persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae.
SANFORD V STATE OF MICHIGAN, No. 159636; Court of Appeals No.
341879. On order of the Court, the application for leave to appeal the
April 9, 2019 judgment of the Court of Appeals is considered. We direct
the Clerk to schedule oral argument on the application. MCR 7.305(H)(1).
The appellant shall file a supplemental brief within 42 days of the date
of this order addressing whether the plaintiff is entitled to compensation
under the Wrongful Imprisonment Compensation Act, MCL 691.1751 et
seq., for time spent in a juvenile facility before he was convicted of a crime.
In addition to the brief, the appellant shall electronically file an appendix
conforming to MCR 7.312(D)(2). In the brief, citations to the record must
provide the appendix page numbers as required by MCR 7.312(B)(1). The
appellee shall file a supplemental brief within 21 days of being served
with the appellant’s brief. The appellee shall also electronically file an
appendix, or in the alternative, stipulate to the use of the appendix filed
by the appellant. A reply, if any, must be filed by the appellant within 14
days of being served with the appellee’s brief. The parties should not
submit mere restatements of their application papers.

Leave to Appeal Denied January 24, 2020:

PEOPLE V MEJIA, No. 159422; Court of Appeals No. 339426.

MCCORMACK, C.J. (dissenting). I respectfully dissent from the Court’s
decision to deny leave to appeal. I would grant leave to appeal to further
review the defendant’s argument that both the question of the admis-
sibility of child sexual abuse accommodation syndrome (CSAAS) under
Daubert v Merrell Dow Pharm, 509 US 579 (1993), and this Court’s
decision allowing the admission of such evidence, People v Peterson, 450
Mich 349 (1995), are ripe for reconsideration. While I recognize that the
majority of courts currently admit such evidence, recently courts around
the country nonetheless have been grappling with troubling questions
about the validity and reliability of such evidence. See, e.g., State v JLG,
234 NJ 265, 272 (2018) (concluding that, for the most part, “it is no
964 505 MICHIGAN REPORTS
longer possible to conclude that CSAAS has a sufficiently reliable basis
in science to be the subject of expert testimony” and therefore holding
that “expert testimony about CSAAS in general, and its component
behaviors other than delayed disclosure, may no longer be admitted at
criminal trials”); see also King v Commonwealth, 472 SW3d 523, 530
(Ky, 2015) (concluding that “[t]he validity of the theory was not self-
evident in 1985 and it is not self-evident today”). And as the New Jersey
Supreme Court noted in JLG, 234 NJ at 291-292, “CSAAS is not
recognized in the Diagnostic and Statistical Manual of Mental Disorders
and has not been accepted by the American Psychiatric Association, the
American Psychological Association, or the American Psychological
Society.” I think it is important for this Court to join that conversation.
BERNSTEIN and CAVANAGH, JJ., join the statement of MCCORMACK, C.J.
LUDOWESE V TROMBLEY-MARTIN, No. 160777; Court of Appeals No.
351488.

Summary Disposition January 29, 2020:

PEOPLE V GEESEY, No. 159788; Court of Appeals No. 348057. Pursuant

to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this
case to the Court of Appeals for consideration as on leave granted.
PEOPLE V LARRY BAILEY, No. 160124; Court of Appeals No. 338351.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal at this
time, we remand this case to the Court of Appeals for consideration of
the issue not addressed by that court in its first or second review of this
case—whether defendant’s trial counsel was ineffective for failing to
investigate and present witnesses to support the theory of defense. We
do not retain jurisdiction.
PEOPLE V WILLETT, No. 160149; Court of Appeals No. 348942. Pursu-
ant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand
this case to the Court of Appeals for consideration as on leave granted.

Order Granting Oral Argument in Case Pending on Application for

Leave to Appeal Entered January 29, 2020:

In re CHRISTOPHER ROSS, JR, MINOR, No. 158764; COURT OF APPEALS No.

331096. On order of the Court, the application for leave to appeal the
August 21, 2018 judgment of the Court of Appeals is considered. We
direct the Clerk to schedule oral argument on the application. MCR
7.305(H)(1). The appellant shall file a supplemental brief within 42 days
of the date of this order addressing: (1) whether appeals from juvenile
adjudications for criminal offenses are governed by the time limits for
civil cases or by the time limits for criminal cases, see MCR 7.305(C)(2);
(2) whether the standard for granting a new trial in a juvenile delin-
quency case is the same as the standard for granting a new trial in a
criminal case, compare MCR 3.992(A) with MCR 6.431(B); (3) whether
juveniles who claim a deprivation of their due process right to counsel
 ORDERS IN CASES 965
must satisfy the two-part test set forth in Strickland v Washington, 466
US 668, 687 (1984); and (4) whether the Court of Appeals erred in
reversing the trial court’s decision to grant the respondent a new trial
based on evidence that trial counsel did not obtain or present.
In addition to the brief, the appellant shall electronically file an
appendix conforming to MCR 7.312(D)(2). In the brief, citations to the
record must provide the appendix page numbers as required by MCR
7.312(B)(1). The appellee shall file a supplemental brief within 21 days of
being served with the appellant’s brief. The appellee shall also electroni-
cally file an appendix, or in the alternative, stipulate to the use of the
appendix filed by the appellant. A reply, if any, must be filed by the
appellant within 14 days of being served with the appellee’s brief. The
parties should not submit mere restatements of their application papers.
The Appellate Practice Section of the State Bar of Michigan, the
Criminal Defense Attorneys of Michigan, the Prosecuting Attorneys
Association of Michigan, the Juvenile Law Center, and the University of
Michigan Law School Juvenile Justice Clinic are invited to file briefs
amicus curiae. Other persons or groups interested in the determination
of the issues presented in this case may move the Court for permission
to file briefs amicus curiae.

Leave to Appeal Denied January 29, 2020:

PEOPLE V AL-ADILY, No. 158877; Court of Appeals No. 344586.

LIGHT V HENRY FORD HEALTH SYSTEM, No. 159588; Court of Appeals No.
339832.
PEOPLE V JACOBIE HALL, No. 159918; Court of Appeals No. 341245.
PEOPLE V KOHLS, No. 160111; Court of Appeals No. 349062.
STERLING BENEFITS, LLC V FISCHER, No. 160160; Court of Appeals No.
342529.

Summary Disposition January 31, 2020:

PEOPLE V GILMORE, No. 158716; Court of Appeals No. 334205. On

December 11, 2019, the Court heard oral argument on the application
for leave to appeal the September 25, 2018 judgment of the Court of
Appeals. On order of the Court, the application is again considered.
MCR 7.305(H)(1). In lieu of granting leave to appeal, we reverse the
judgment of the Court of Appeals, and we remand this case to the Wayne
Circuit Court for an evidentiary hearing regarding the amount of
restitution.
Defendant pleaded guilty to organized retail crime and using a
computer to commit a crime. In exchange, the prosecutor agreed to
dismiss three other pending charges and a habitual-offender notice. The
parties also agreed that defendant’s sentence would be 31/2 years of
probation and that he would pay restitution of $18,000.80. Defendant
966 505 MICHIGAN REPORTS
disputed the amount of restitution and requested a restitution hearing.
The trial court essentially refused, forcing defendant to accept the
restitution amount to gain the benefits of the agreement. Defendant
acquiesced. In establishing the factual basis of the offense, defendant
admitted that he switched tags on merchandise in a store, obtaining a
good he believed was valued at $169 for some lesser amount. The
presentence investigation report indicated the value could have been as
much as $199.
However, the court ultimately refused to follow the agreement at
sentencing. The court told defendant the original agreement had been
“stricken” and described the defendant’s alternative to facing trial:

Well, there is no actual offer, the only thing that’s on the table
right now are guidelines except for the fact that the People are
desirous of withdrawing the habitual fourth and dismissing
Counts 3, 4, and 5 at the time of sentencing, that’s it.
Defendant agreed, and the court sentenced defendant to concurrent
terms of 5 years of probation, and 21/2 to 7 years in prison. The court also
ordered defendant to pay $18,000.80 in restitution. With no agreement
in place regarding restitution, the court was required to resolve the
dispute over the proper amount of restitution by a preponderance of the
evidence. MCL 780.767(4). Because the trial court failed to do so,
defendant is entitled to a remand for this determination.
Even if the error were unpreserved, the record evidence—the factual
basis for defendant’s conviction and the information from the presentence
investigation report—indicates the court plainly erred. The loss to the
merchant for the charged offense was, at most, $199. To the extent that
the record contains information that defendant may have committed
other offenses, restitution may not be imposed for uncharged conduct.
People v McKinley, 496 Mich 410, 419-420 (2014) (holding that “any
course of conduct that does not give rise to a conviction may not be relied
on as a basis for assessing restitution against a defendant” under MCL
780.766(2)). We have little trouble seeing that the trial court erred, the
error was plain, and that the error affected defendant’s substantial rights.
People v Carines, 460 Mich 750, 763 (1999). Further, the fairness of the
proceeding was seriously affected given the trial court’s failure to conduct
a restitution hearing under the circumstances. See id. at 763-764. We do
not retain jurisdiction
PEOPLE V BONDS, No. 159764; Court of Appeals No. 346871. Pursuant
to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this
case to the Court of Appeals for consideration as on leave granted of the
defendant’s ineffective assistance of appellate counsel issue based on his
argument under MCR 6.508(D)(3) that the 26-month delay between his
arrest and trial deprived him of his right to a speedy trial. People v
Williams, 475 Mich 245 (2006); Barker v Wingo, 407 US 514, 532 (1972).
In all other respects, leave to appeal is denied, because the defendant
has failed to meet the burden of establishing entitlement to relief under
MCR 6.508(D).
 ORDERS IN CASES 967
PEOPLE V SARANTAY HOUSTON, No. 159858; Court of Appeals No. 339254.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
vacate Part II.B. of the judgment of the Court of Appeals addressing tool
mark identification evidence, and remand this case to the Wayne Circuit
Court for an evidentiary hearing pursuant to People v Ginther, 390 Mich
436 (1973). Contrary to the statement by the Court of Appeals in this case,
the defendant’s trial counsel was not required to choose between an alibi
defense and challenging the expert testimony on firearms and ballistics,
as challenging the prosecution’s expert would not have undermined the
defendant’s alibi defense. In all other respects, leave to appeal is denied,
because we are not persuaded that the remaining questions presented
should be reviewed by this Court. We do not retain jurisdiction.
MARKMAN, J. (dissenting). I respectfully dissent. A jury convicted
defendant of assault with intent to commit great bodily harm, being a
felon in possession of a firearm, carrying a concealed weapon, and
possessing a firearm during the commission of a felony. Evidence
supporting the verdict included the victim’s identification of defendant
as the shooter and testimony from a ballistics expert matching shell
casings recovered from the scene to a firearm retrieved from a house
frequented by defendant. Defense counsel presented five alibi witnesses
who placed defendant at a birthday party at the time of the shooting.
Defense counsel, however, did not challenge the ballistics expert’s
testimony. The Court of Appeals affirmed defendant’s convictions, in
part rejecting defendant’s argument that counsel performed deficiently
by not challenging the ballistics expert. This Court vacates that portion
of the judgment of the Court of Appeals, with this Court stating that
“challenging the prosecution’s expert would not have undermined the
defendant’s alibi defense.”
To obtain a new trial based on a claim of ineffective assistance of
counsel, “defendant must show that (1) counsel’s performance fell below
an objective standard of reasonableness and (2) but for counsel’s deficient
performance, there is a reasonable probability that the outcome would
have been different.” People v Trakhtenberg, 493 Mich 38, 51 (2012). “In
examining whether defense counsel’s performance fell below an objective
standard of reasonableness, a defendant must overcome the strong
presumption that counsel’s performance was born from a sound trial
strategy.” Id. at 52 (emphasis added). This Court reaches its conclusion
that a challenge to the ballistics expert would not have undermined
defendant’s alibi defense without (a) first permitting an evidentiary
hearing at which counsel could testify regarding any strategic reasons for
not challenging the expert, and (b) according due deference to the
presumption that counsel acted in pursuit of a sound trial strategy.
However, I can think of at least three potentially sound reasons for
counsel’s decision not to have challenged the expert’s testimony.
First, counsel may have concluded that challenging the expert
through cross-examination would have proven fruitless or even poten-
tially harmful to defendant’s case. While some literature draws into
question the reliability of ballistics-comparison methodology, an experi-
enced expert in ballistics would likely be familiar with this literature
and prepared to refute the contentions in the literature. Thus, the
968 505 MICHIGAN REPORTS
expert’s answers on cross-examination might well have undermined
counsel’s efforts to draw into question the direct testimony and could
even have strengthened the authority of the expert’s opinion. As the law
school adage goes, an attorney should not ask a witness a question if the
attorney does not know the witness’s answer.1
Second, assuming for the sake of argument that the literature relied
upon by defendant on appeal accurately reflects the validity of ballistics-
comparison evidence, reflects the validity of ballistics-comparison evi-
dence, the views of scholars and the views of the public are not
necessarily one and the same. Specifically, in the “Crime Scene Investi-
gation” age, counsel could reasonably have concluded that a jury would
be highly inclined to believe the ballistics expert’s testimony despite
potential flaws in the methodology supporting that testimony. And
counsel may have worried further that an unsuccessful challenge to the
ballistics expert’s testimony would have (a) given the impression to the
jury that defendant was advancing a scattershot defense rather than a
defense focused upon the alibi testimony, and (b) compromised defense
counsel’s credibility in presenting that alibi defense.
Third, and most importantly, while challenging the ballistics expert’s
testimony might have undermined one of the prosecutor’s pieces of
evidence, it would not have refuted the victim’s positive identification of
defendant as the shooter. Rather, it would have suggested that defendant
had employed a different firearm to shoot the victim. But if the jury
believed the five alibi witnesses, the ballistics report might have actually
helped defendant undermine the victim’s identification. Notably, defen-
dant’s fingerprints were not recovered from the firearm. And while some
papers and pictures linked defendant to the house from which the police
had recovered the firearm, defendant’s cousin lived in the house. Thus,
counsel might have hoped that the jury would draw the inference that the
victim had misidentified defendant for defendant’s cousin—a cousin who
bore a closer connection to the house than did defendant.
In light then of the “strong presumption” that counsel acted in
accordance with a sound trial strategy and the three easily conceivable
reasons for counsel not having challenged the ballistics expert, this

1
Defendant also faults counsel for not having called his own ballistics
expert. However, defendant fails to put forth evidence showing what
favorable testimony such an expert would have provided. See People v
Carbin, 463 Mich 590, 600 (2001) (“Because the defendant bears the
burden of demonstrating both deficient performance and prejudice, the
defendant necessarily bears the burden of establishing the factual
predicate for his claim.”). Rather, the expert that defendant contends
counsel should have called to testify, Steven Howard, is yet to have even
reviewed the prosecutor’s expert’s report or the evidence supporting
that report. Furthermore, while defendant may attribute this deficiency
in his claim to the trial court not having allocated him $1,500 to retain
Mr. Howard, defendant’s application for leave to appeal in this Court
does not challenge that decision by the trial court.
 ORDERS IN CASES 969
Court has prematurely concluded that “challenging the prosecution’s
expert would not have undermined the defendant’s alibi defense.”
PEOPLE V MCCOLLUM, No. 159963; Court of Appeals No. 337735.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
vacate Parts II, III, and V of the Court of Appeals judgment, and remand
this case to the Oakland Circuit Court, which shall hold an evidentiary
hearing pursuant to People v Ginther, 390 Mich 436 (1973). If the trial
court rules that the defendant was not denied his right to the effective
assistance of counsel, the trial court shall resentence defendant in
accordance with Part IV of the Court of Appeals judgment.
PEOPLE V CORZILIUS, No. 160030; Court of Appeals No. 348648. Pursu-
ant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand
this case to the Wayne Circuit Court for an evidentiary hearing to
determine whether the defendant’s plea was understanding and volun-
tary. We do not retain jurisdiction.

Leave to Appeal Denied January 31, 2020:

DKE, INC V SECURA INSURANCE COMPANY, Nos. 158988 and 158989;

Court of Appeals Nos. 333497 and 337834.
ZAHRA, J. (dissenting). I respectfully dissent from the Court’s decision
to deny the application. Plaintiff, DKE Inc., sued its insurer, Secura
Insurance Company, for denying coverage after plaintiff’s building was
found to have been set on fire by Patrick Winter, the son of DKE’s owner.
Even assuming that United Gratiot Furniture Mart, Inc v Mich Basic
Prop Ins Ass’n1 was properly decided and that the trial court erred by
failing to instruct the jury that an arsonist must have had “complete
dominance and control” over the affairs of DKE to have precluded
insurance benefits for the property the arsonist has burned,2 I believe,

1
United Gratiot Furniture Mart, Inc v Mich Basic Prop Ins Ass’n, 159
Mich App 94 (1987).
2
But for the unique procedural posture involving the law-of-the-case
doctrine, I would question whether United Gratiot was properly decided.
Specifically, I would question the soundness of its holding “that an
insurance carrier may assert arson as a defense against a corporation’s
claim of fire loss [only] if it is factually demonstrated that the individual
who set or procured the setting of the fire exercised complete dominance
and control over the affairs of the corporation.” Id. at 101 (emphasis
added). As explained by the United States Court of Appeals for the Sixth
Circuit in K & T Enterprises, Inc v Zurich Ins Co, 97 F3d 171, 177-178
(1996): It makes little sense to craft a rule that requires an insurance
company to demonstrate that an arsonist completely controlled a corpo-
ration before allowing the insurance company to deny the corporation the
right to collect on a fire insurance policy. First, it will be extremely
970 505 MICHIGAN REPORTS
just as did the panel in United Gratiot, that the failure to precisely
instruct the jury on this point of law is not an error that requires
reversal of the jury verdict.
Significantly, in United Gratiot, the plaintiff argued that the corporate
form should be disregarded only when the arsonist is the sole share-
holder.3 The trial court rejected this argument, concluding that “domi-
nance and control” was the appropriate standard, and denied the
plaintiff’s motion for directed verdict. Later, the trial court “instructed
the jury to ignore the corporate existence if it found that the alleged
arsonist ‘controlled the management and the operation of the corpora-
tion.’ ”4 The jury instructions did not mention “dominance and control,”
let alone “complete dominance and control.”5 These are phrases used by
the panel in United Gratiot in the opinion affirming the trial court’s
action.
In the present case, the trial court gave the following jury instruc-
tions:
Defendant has the burden of proof on the following proposi-
tion: (1) That Patrick Winter, to whom the property was en-

difficult for any insurance company to demonstrate that an arsonist had

complete control over a corporation. . . . Second, such a rule would
encourage some corporate officers deliberately to remain blissfully igno-
rant of any plans for arson by other corporate officers. Third, such a rule
gives an incentive to a financially distressed corporation plotting arson of
the corporate property to disperse control, or perhaps create formal titles
giving the impression of dispersed control, in order to insure that fire
insurance proceeds can be collected later. Fourth, and most distressingly,
by making it more difficult for insurance companies to deny liability in
cases of arson, it is clear that the ultimate effect of this rule would be to
encourage arson for profit. For these reasons, the K & T Enterprise court
surmised that there is “no reason to assume that the Michigan Supreme
Court would extend United Gratiot, rather than limit it to its core
holding.” Id. at 179. Accordingly, the K & T Enterprise court agreed with
the insurer’s reading of United Gratiot as stating that “complete control of
the corporation is a sufficient condition to proper denial of liability, but . . .
the facts of that case do not require our court to conclude that complete
control is a necessary condition for proper denial of liability.” Id. at 177.
3
United Gratiot, 159 Mich App at 97-98.
4
Id. at 102.
5
The trial court confessed that “the instructions as to this test of
‘dominance and control’ were scanty . . . .” Id. at 103. The Court of
Appeals held that “[w]hile we agree that the instruction could have been
more specific, we do not believe reversal is required. If a jury charge is
erroneous or inadequate, reversal is required only where failure to
reverse would be inconsistent with substantial justice.” Id.
 ORDERS IN CASES 971
trusted, had dominion and control over the affairs of the corpo-
ration DKE Inc. and the property at 21751 W. Nine Mile Road[.]

* * *

The defendant insurance company is not required to pay for

this loss if you find that a person in sufficient control of DKE
committed arson.

* * *

Exactly how much control constitutes sufficient control is a

decision left to your good judgment.

* * *

The fact that an alleged arsonist is not a stockholder of the

corporation at the time of the fire does not in and of itself mean
that the alleged arsonist was not exercising the requisite amount
of dominion and control over the affairs of the corporation to
preclude coverage of the claim.

* * *

If Patrick Winter exercised sufficient control over the corpo-

ration DKE’s affairs, any . . . arson on his part would be imputed
to the corporation.

DKE maintains that the above instructions do not follow the exact
verbiage of United Gratiot, which refers to “complete dominance and
control.”6 In my view, comparison of the instructions in the present case

6
DKE relies on Black’s Law Dictionary to give meaning to the words
“complete” and “sufficient” as used by the Court of Appeals panel in
United Gratiot. Preliminarily, resort to a dictionary is most useful in the
interpretation of statutes, as we assume the Legislature accorded the
plain and ordinary meaning to the words used to write the law.
Dictionaries are far less helpful in defining words used by courts in the
interpretation of statutes, contracts, or the common law, as such
interpretations are largely driven by context and the application of the
facts to the applicable law. Contrary to the assertions advanced by DKE,
I conclude that resort to dictionaries is entirely unhelpful in under-
standing the holding in United Gratiot. First, resort to a legal dictionary
is not an appropriate tool of interpretation to define words that do not
have unique legal meaning. “ ‘An undefined statutory term must be
accorded its plain and ordinary meaning. A lay dictionary may be
972 505 MICHIGAN REPORTS
to a snippet from the United Gratiot opinion misses the point. DKE and
the Court of Appeals majority fail to appreciate that sufficient control is
premised on the instruction that “[d]efendant has the burden of proof on
the following proposition: . . . That Patrick Winter, to whom the property
was entrusted, had dominion and control over the affairs of the corpora-
tion DKE Inc. and the property at 21751 W. Nine Mile Road[.]” Thus, the
issue is whether plaintiff was denied substantial justice when the trial
court instructed the jury that defendant must show Patrick Winter
exercised “sufficient dominance and control” instead of “complete domi-
nance and control.” I view this as a distinction without much of a
difference.
Further and more importantly, the Court has failed to recognize that
this is a contract case, the outcome of which turns on the terms of the
contract. Defendant denied coverage on the basis of a provision of the
policy that states:
2. We will not pay for loss or damage caused by or resulting
from any of the following:

* * *

f. Dishonesty
Dishonest or criminal acts by you, anyone else with an interest
in the property, or any of your or their partners, employees,
directors, trustees, authorized representatives or anyone to
whom you entrust the property for any purpose:
(1) Acting alone or in collusion with others;
(2) Whether or not occurring during the hours of employment.

Although a provision may be added to a fire insurance policy, it must

be consistent with the mandates of MCL 500.2833; any provision of a
policy that is contrary to the provisions of MCL 500.2833 is void. The
above exclusion is consistent with MCL 500.2833, which only specifi-
cally requires, in pertinent part, that fire insurance policies contain a
provision stating “that the policy may be void on the basis of misrepre-
sentation, fraud, or concealment.” MCL 500.2833(1)(c). Further, MCL
500.2236(1) requires that all “basic insurance policy” forms be filed with
the Department of Insurance and Financial Services and be approved by

consulted to define a common word or phrase that lacks a unique legal

meaning.’ ” Hecht v Nat’l Heritage Academies, Inc, 499 Mich 586, 621 n 62
(2016), quoting Brackett v Focus Hope, Inc, 482 Mich 269, 276 (2008).
Second, it appears that DKE has engaged in some dictionary shopping,
especially in regard to the word “control.” “Complete” is commonly defined
as “having all necessary parts, elements, or steps.” Merriam-Webster’s
Collegiate Dictionary (11th ed). “Sufficient” is commonly defined as
“enough to meet the needs of a situation or a proposed end.” Id. I make
this observation to highlight that the common definitions of “complete”
and “sufficient” are not as strikingly dissimilar as DKE would suggest.
 ORDERS IN CASES 973
its director, the Commissioner, before a policy may be issued by an
insurance company. See MCL 500.102. If the Commissioner fails to act
within 30 days after the policy form is submitted, the form is deemed
approved. MCL 500.2236(1).
Here, the Commissioner approved the policy and the policy is pre-
sumptively, if not conclusively, reasonable. On the other hand, the
Commissioner has not approved any provision requiring that “misrepre-
sentation, fraud, or concealment” be committed by someone with “com-
plete dominion and control over the affairs of the corporation.” Indeed, I
conclude that this standard is plainly contrary to MCL 500.2833 in that
it precludes a determination of “misrepresentation, fraud, or conceal-
ment” if committed by someone who does not have “complete dominion
and control over the affairs of the corporation.” Comparing the pertinent
insurance contract language to the instructions provided the jury on the
question of dominion and control, I cannot conclude that defendant was
denied substantial justice. Accordingly, because the jury was adequately
instructed, I would hold that the Court of Appeals erred by reversing the
jury verdict.
MARKMAN, J., joins the statement of ZAHRA, J.
CAVANAGH, J., did not participate due to her prior relationship with
Garan Lucow Miller, P.C.

Summary Disposition February 4, 2020:

PEOPLE V DEWEERD, No. 160259; Court of Appeals No. 349353. Pursu-

ant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand
this case to the Court of Appeals for consideration as on leave granted.
MARTIN V DEPARTMENT OF CORRECTIONS, No. 160276; Court of Appeals
No. 348460. On order of the Court, the application for leave to appeal the
August 16, 2019 order of the Court of Appeals is considered and,
pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
remand this case to the Chippewa Circuit Court for clarification of the
grounds for its January 17, 2019 order of dismissal. On remand, the
trial court shall provide sufficient explanation to facilitate appellate
review. We do not retain jurisdiction.
PEOPLE V JAMES REED, No. 160319; Court of Appeals No. 349566.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
remand this case to the Court of Appeals for consideration, as on leave
granted, of: (1) whether the trial court erred in scoring Offense Variable
4 at 10 points for serious psychological injury to a victim; MCL
777.34(1)(a), and (2) whether defendant’s sentence was proportionate. In
all other respects, leave to appeal is denied, because we are not persuaded
that the remaining questions presented should be reviewed by this Court.
PEOPLE V BEATY, No. 160328; Court of Appeals No. 349821. Pursuant to
MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case
to the Court of Appeals for consideration as on leave granted. Without
limiting the review of the Court of Appeals on remand, the Court notes
that the transcript of the May 9, 2019 resentencing appears to indicate
974 505 MICHIGAN REPORTS
the trial court meant to use cell B-IV in the sentencing grid for Class A
offenses as the basis for the departure sentence, but used cell C-IV
instead.
PEOPLE V FISCHER TUCKER, No. 160338; Court of Appeals No. 349643.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
remand this case to the Court of Appeals for consideration, as on leave
granted, of the defendant’s challenge to his score for Offense Variable 9,
MCL 777.39. In all other respects, leave to appeal is denied, because we
are not persuaded that the remaining question presented should be
reviewed by this Court.

Leave to Appeal Denied February 4, 2020:

PEOPLE V GERALD SHORT, No. 156653; Court of Appeals No. 337218.

MICHIGAN HEAD & SPINE INSTITUTE, PC V HASTINGS MUTUAL INSURANCE
COMPANY, No. 158581; Court of Appeals No. 340656.
MARCHKE V CIVIL SERVICE COMMISSION, No. 158847; Court of Appeals
No. 342969.
CLEMENT, J., not participating due to her involvement as chief legal
counsel for the Governor.
HENRY FORD HEALTH SYSTEM V EVEREST NATIONAL INSURANCE COMPANY,
No. 158904; reported below: 326 Mich App 398.
OMEGA REHAB SERVICES, LLC V EVEREST NATIONAL INSURANCE COMPANY,
No. 159370; Court of Appeals No. 340297.
In re CONSERVATORSHIP OF MARILYN BURHOP, No. 159428; Court of
Appeals No. 340771.
PEOPLE V RODRIGUEZ, No. 159457; Court of Appeals No. 347121.
PEOPLE V MARCUS FORD, No. 159481; Court of Appeals No. 336500.
PEOPLE V GRIMES, No. 159570; Court of Appeals No. 347493.
PEOPLE V MARLON JACKSON, No. 159621; Court of Appeals No. 347953.
LEAPHART V STATE OF MICHIGAN, No. 159624; Court of Appeals No.
343136.
PEOPLE V SUMPTER, No. 159652; Court of Appeals No. 347630.
THORNSBERRY V DETROIT TIGERS, INC, No. 159659; Court of Appeals No.
342322.
PAYNE V PAYNE, No. 159675; Court of Appeals No. 346694.
PEOPLE V HOLMAN, No. 159713; Court of Appeals No. 346292.
PEOPLE V JACK SMITH, No. 159733; Court of Appeals No. 347491.
 ORDERS IN CASES 975
PEOPLE V ROBERTSON, No. 159760; Court of Appeals No. 347972.
PEOPLE V TYREESE MOORE, No. 159781; Court of Appeals No. 346628.
PEOPLE V KROK, No. 159802; Court of Appeals No. 341288.
PEOPLE V BURKLOW, No. 159818; Court of Appeals No. 339590.
PEOPLE V DELMARTER, No. 159819; Court of Appeals No. 342300.
PEOPLE V NEEDRA ANDERSON, No. 159823; Court of Appeals No. 343402.
VIVIANO, J., did not participate due to a familial relationship with the
presiding circuit court judge in this case.
VHS DETROIT RECEIVING HOSPITAL, INC V CITY OF DETROIT, No. 159875;
Court of Appeals No. 341628.
PEOPLE V HOWELL, No. 159898; Court of Appeals No. 341383.
PEOPLE V DOSTER, No. 159926; Court of Appeals No. 342178.
PEOPLE V TRAVER, No. 159964; reported below: 328 Mich App 418.
PEOPLE V CORNELL, No. 159966; Court of Appeals No. 339990.
PEOPLE V HOLLAND, No. 159991; Court of Appeals No. 346974.
PEOPLE V FRANKLIN, No. 159999; Court of Appeals No. 347139.
PRICE V CALLIS, No. 160020; Court of Appeals No. 340734.
PEOPLE V ALDRIDGE, No. 160031; Court of Appeals No. 348948.
PEOPLE V HEAD, No. 160044; Court of Appeals No. 348008.
PEOPLE V DELEON, No. 160050; Court of Appeals No. 346625.
PEOPLE V DORIAN WILLIS, No. 160063; Court of Appeals No. 347549.
VIVIANO, J., did not participate because he presided over this case in
the circuit court at an earlier stage of the proceedings.
PEOPLE V NUTTING, No. 160071; Court of Appeals No. 347074.
PEOPLE V GARCIA, No. 160074; Court of Appeals No. 344262.
PEOPLE V DANNIE SMITH, No. 160089; Court of Appeals No. 348180.
PEOPLE V WOLTER, Nos. 160092, 160093, and 160094; Court of Appeals
Nos. 347910, 347911, and 347912.
PEOPLE V HUDSON, No. 160096; Court of Appeals No. 347742.
PEOPLE V DEMAL SIMMONS, No. 160098; Court of Appeals No. 341446.
PEOPLE V TERAH STAMPS, No. 160104; Court of Appeals No. 348140.
PEOPLE V SCHRAM, No. 160125; Court of Appeals No. 347407.
PEOPLE V BARRON, No. 160133; Court of Appeals No. 339508.
976 505 MICHIGAN REPORTS
PEOPLE V HERMAN CHEESE, No. 160144; Court of Appeals No. 347624.
On order of the Court, the application for leave to appeal the June 19,
2019 order of the Court of Appeals is considered, and it is denied,
because we are not persuaded that the question presented should be
reviewed by this Court. We note that relief is not prohibited by MCR
6.502(G) because this appeal does not involve the denial of a motion for
relief from judgment. Rather, this appeal involves only the defendant’s
motion to vacate the attorney fees assessed after the end of his direct
appeal in an order separate from the judgment of sentence. The trial
court properly denied this motion as previously litigated and lacking in
merit. This Court’s decision in People v Comer, 500 Mich 278 (2017), is
inapplicable because the trial court imposed the assessment without
amending the judgment of sentence.
PEOPLE V PHILLIP SMITH, No. 160147; Court of Appeals No. 348875.
PEOPLE V LAVALLEY, No. 160154; Court of Appeals No. 347966.
PEOPLE V MCRUNELS, No. 160158; Court of Appeals No. 349417.
PEOPLE V LARRY COLE, No. 160163; Court of Appeals No. 346915.
PEOPLE V BERST, No. 160174; Court of Appeals No. 348445.
PEOPLE V PHARMS, No. 160195; Court of Appeals No. 335439.
WHITE V ST JOHN MACOMB HOSPITAL, No. 160206; Court of Appeals No.
341093.
VIVIANO, J., did not participate because he presided over this case in
the circuit court.
PEOPLE V RASHED BROWN, No. 160212; Court of Appeals No. 340069.
PEOPLE V MCCULLOUGH, No. 160214; Court of Appeals No. 347879.
PEOPLE V ISAAC HARRIS, No. 160219; Court of Appeals No. 347986.
PEOPLE V JUSTIN HUGHES, No. 160239; Court of Appeals No. 339441.
PEOPLE V ELLIS, No. 160240; Court of Appeals No. 347409.
PEOPLE V GAMET, No. 160244; Court of Appeals No. 348196.
PEOPLE V MAJOR-LANG, No. 160249; Court of Appeals No. 342706.
PEOPLE V WATSON, No. 160258; Court of Appeals No. 338110.
PEOPLE V AL-SHIMARY, No. 160269; Court of Appeals No. 348045.
PEOPLE V DUKES, No. 160273; Court of Appeals No. 342258.
PEOPLE V TERRENCE MOORE, No. 160274; Court of Appeals No. 348833.
PEOPLE V CASTANEDA, No. 160278; Court of Appeals No. 348727.
LAFOUNTAIN V DEPARTMENT OF CORRECTIONS, No. 160279; Court of
Appeals No. 348069.
 ORDERS IN CASES 977
PEOPLE V SAWYER, No. 160288; Court of Appeals No. 348502.
SPECKIN FORENSICS, LLC V AUTO-OWNERS INSURANCE COMPANY, No.
160289; Court of Appeals No. 344012.
PEOPLE V LANG, No. 160297; Court of Appeals No. 338359.
PEOPLE V CHRISTOPHER RICHARDSON, No. 160299; Court of Appeals No.
349582.
PEOPLE V MARK GATES, No. 160313; Court of Appeals No. 349830.
PEOPLE V DEANDRE MARTIN, No. 160315; Court of Appeals No. 344493.
PEOPLE V POTTER, No. 160324; Court of Appeals No. 349478.
PEOPLE V SEAN THOMAS, No. 160327; Court of Appeals No. 341727.
VIVIANO, J., did not participate due to a familial relationship with the
presiding circuit court judge in this case.
PEOPLE V LANCE, No. 160330; Court of Appeals No. 343960.
PEOPLE V JIMMIE WALKER, No. 160332; Court of Appeals No. 340719.
PEOPLE V CALVIN HAMMONDS, No. 160336; Court of Appeals No. 349625.
VIVIANO, J., did not participate due to a familial relationship with the
presiding circuit court judge in this case.
MALCOM V HURON VALLEY CORRECTIONAL FACILITY WARDEN, No. 160353;
Court of Appeals No. 349396.
NEWHOUSE V BARAGA CORRECTIONAL FACILITY WARDEN, No. 160371; Court
of Appeals No. 349191. On order of the Court, the application for leave
to appeal the October 7, 2019 order of the Court of Appeals is considered,
and it is denied, because we are not persuaded that the questions
presented should be reviewed by this Court. Habeas corpus “ ‘is not
available to test questions of evidence. . . .’ ” Kenney v Booker, 494 Mich
852 (2013), quoting In re Stone, 295 Mich 207, 212 (1940). The relief the
plaintiff seeks requires that he file a motion for relief from judgment in
the Kalamazoo Circuit Court pursuant to subchapter 6.500 of the
Michigan Court Rules. To the extent the plaintiff files such a motion to
present claims of actual innocence, he should provide that court with his
supporting evidence, including any high-quality images that support
the plaintiff’s claim that his vehicle did not match the vehicle used by
the perpetrator. If high-quality images are not available to the plaintiff,
but are part of the record of the case, the plaintiff should direct the court
to the place in the record where the images can be viewed.
PEOPLE V SLEEPER, No. 160389; Court of Appeals No. 348974.
PEOPLE V ARMSTEAD, No. 160390; Court of Appeals No. 349265.
PEOPLE V SWANDER, No. 160393; Court of Appeals No. 349789.
PEOPLE V ROBERT WRIGHT, No. 160394; Court of Appeals No. 346451.
978 505 MICHIGAN REPORTS
PEOPLE V JORDAN, No. 160396; Court of Appeals No. 342997.
PEOPLE V MEDENDORP, No. 160397; Court of Appeals No. 349656.
PEOPLE V BEARDEN, No. 160399; Court of Appeals No. 349077.
PEOPLE V ROBERT JACKSON, No. 160403; Court of Appeals No. 349006.
PEOPLE V LABADIE, No. 160404; Court of Appeals No. 350276.
PEOPLE V KORYAL, No. 160407; Court of Appeals No. 343794.
PEOPLE V CULBERTSON, No. 160408; Court of Appeals No. 349765.
PEOPLE V KREASON, No. 160409; Court of Appeals No. 349758.
PEOPLE V JASON WEBB, No. 160411; Court of Appeals No. 349642.
PEOPLE V TILLMAN, No. 160417; Court of Appeals No. 348818.
PEOPLE V LEIGH, No. 160418; Court of Appeals No. 349004. On order of
the Court, the application for leave to appeal the August 30, 2019 order
of the Court of Appeals is considered, and it is denied, because we are
not persuaded that the questions presented should be reviewed by this
Court. For purposes of MCR 6.502(G)(1), the Court notes that, although
the defendant’s motion has been styled as a motion for relief from
judgment by the courts below, it should not be regarded as a motion for
relief from judgment in any future case. The defendant actually filed a
motion to correct presentence report, correct guidelines, and to resen-
tence. The delayed application for leave to appeal to the Court of
Appeals was properly denied, but due to the lack of merit in the grounds
presented, not under the rules of MCR 6.501 et seq.
PEOPLE V WESLEY MOORE, No. 160419; Court of Appeals No. 348983.
PEOPLE V PENNEBAKER, No. 160440; Court of Appeals No. 349589.
PEOPLE V ARTINIAN, No. 160441; Court of Appeals No. 344332.
PEOPLE V DERREK BANKS, No. 160443; Court of Appeals No. 345161.
In re RONNIE DANTE THOMAS, No. 160444; Court of Appeals No. 348796.
PEOPLE V BENNIE BEARD, No. 160445; Court of Appeals No. 350086.
PEOPLE V RONALD BROWN, No. 160451; Court of Appeals No. 349373. On
order of the Court, the application for leave to appeal the September 27,
2019 order of the Court of Appeals is considered. With regard to the
defendant’s claim of new evidence, leave to appeal is denied, because the
defendant has failed to meet the burden of establishing entitlement to
relief under MCR 6.508(D). In all other respects, leave to appeal is
denied, because the defendant’s motion for relief from judgment is
prohibited by MCR 6.502(G).
PEOPLE V SLATER, No. 160462; Court of Appeals No. 348046.
 ORDERS IN CASES 979
PEOPLE V BUTCHER, No. 160463; Court of Appeals No. 342894.
PEOPLE V ELOWSKY, No. 160474; Court of Appeals No. 349873.
PEOPLE V CARL FRYE, No. 160487; Court of Appeals No. 350025.
PEOPLE V CHRISTOPHER DAVIS, No. 160539; Court of Appeals No. 343435.
CREWS V CREWS, No. 160550; Court of Appeals No. 346440.
PEOPLE V MALCOM, No. 160555; Court of Appeals No. 349507.
PEOPLE V SADEGHI, No. 160572; Court of Appeals No. 350710.
PEOPLE V TONNIE JOHNSON, No. 160666; Court of Appeals No. 340782.

Superintending Control Denied February 4, 2020:

KELSO-GUYTON V ATTORNEY GRIEVANCE COMMISSION, No. 160405.

CAVANAGH, J., did not participate due to her prior service as a member
of the Attorney Grievance Commission.

Reconsideration Denied February 4, 2020:

PEOPLE V DOWDY, No. 158098; Court of Appeals No. 343551. Leave to

appeal denied at 504 Mich 977.
PEOPLE V BARSKI, No. 158228; Court of Appeals No. 341942. Leave to
appeal denied at 504 Mich 975.
PEOPLE V BILLY HAMMONDS, No. 159084; Court of Appeals No. 336958.
Leave to appeal denied at 504 Mich 957.
PEOPLE V PERCY TAYLOR, No. 159118; Court of Appeals No. 338601.
Leave to appeal denied at 504 Mich 972.
PEOPLE V WHATELEY, No. 159189; Court of Appeals No. 339255. Leave
to appeal denied at 504 Mich 972.
TURKISH V WILLIAM BEAUMONT HOSPITAL, No. 159272; Court of Appeals
No. 339522. Leave to appeal denied at 504 Mich 963.
BERNSTEIN, J., did not participate because of his prior representation
of a party in an unrelated matter.
PEOPLE V CHRISTOPHER WHITE, No. 159286; Court of Appeals No.
345625. Leave to appeal denied at 504 Mich 972.
PEOPLE V VENSON, No. 159385; Court of Appeals No. 339921. Leave to
appeal denied at 504 Mich 958.
PEOPLE V MOSES, No. 159467; Court of Appeals No. 346210. Leave to
appeal denied at 504 Mich 958.
980 505 MICHIGAN REPORTS
HOLY TRINITY ROMANIAN ORTHODOX MONASTERY V ROMANIAN ORTHODOX
EPISCOPATE OF AMERICA and ROMANIAN ORTHODOX EPISCOPATE OF AMERICA V
HOLY ASCENSION ORTHODOX CHRISTIAN MONASTERY, Nos. 159494 and
159495; Court of Appeals Nos. 342844 and 342846. Leave to appeal
denied at 504 Mich 972.
ABRAHAM V INCORP SERVICES, INC, No. 159535; Court of Appeals No.
342296. Leave to appeal denied at 504 Mich 972.
PEOPLE V MADDOX, No. 159555; Court of Appeals No. 346486. Leave to
appeal denied at 504 Mich 972.
REIDENBACH V CITY OF KALAMAZOO, No. 159592; reported below: 327
Mich App 174. Leave to appeal denied at 504 Mich 959.
BURTON V CITY OF DETROIT, No. 159674; Court of Appeals No. 340592.
Leave to appeal denied at 504 Mich 998.
PEOPLE V SWILLING, No. 159681; Court of Appeals No. 347888. Leave to
appeal denied at 504 Mich 973.
PEOPLE V BUTTS, Nos. 159806 and 159807; Court of Appeals Nos.
348077 and 348080. Leave to appeal denied at 504 Mich 999.
BELL V DEPARTMENT OF CORRECTIONS, No. 159847; Court of Appeals No.
347945. Leave to appeal denied at 504 Mich 999.
JOHNSON V ZIYADEH, No. 159850; Court of Appeals No. 340866. Leave
to appeal denied at 504 Mich 999.
PEOPLE V KOBASIC, No. 159902; Court of Appeals No. 346410. Leave to
appeal denied at 504 Mich 1000.
LYNCH V STATE OF MICHIGAN, No. 160121. Superintending control
denied at 504 Mich 974.

Summary Disposition February 5, 2020:

PEOPLE V WEHRLE, No. 159180; Court of Appeals No. 346173. By order

of September 10, 2019, the prosecuting attorney was directed to answer
the application for leave to appeal the January 2, 2019 order of the
Court of Appeals. On order of the Court, the answer having been
received, the application for leave to appeal is again considered and,
pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
remand this case to the Court of Appeals for consideration as on leave
granted. In its consideration of this case, the Court of Appeals shall
expressly address whether the information about the October 2018
interview with Christopher Wehrle that the prosecution has attached to
its response in this Court may be properly considered on appeal.
PEOPLE V FURLONG, No. 159996; Court of Appeals No. 348555. Pursu-
ant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand
this case to the Court of Appeals for consideration as on leave granted.
PEOPLE V SWIFT, No. 160213; Court of Appeals No. 348612. Pursuant
to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate
 ORDERS IN CASES 981
defendant’s sentence and remand this case to the Muskegon Circuit
Court. Offense Variable 4 appears to have been scored based solely on
the prosecutor’s assertion. However, an attorney’s statements are not
evidence, People v Ison, 132 Mich App 61, 68 (1984), and offense
variables must be scored based on a preponderance of the evidence,
People v Hardy, 494 Mich 430, 438 (2013). Because a 10-point reduction
for Offense Variable 4 would result in a lower sentencing range,
defendant is entitled to resentencing. People v Francisco, 474 Mich 82
(2006). We do not retain jurisdiction.
In re INGRAM, MINORS, No. 160533; Court of Appeals No. 347800.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
vacate the Court of Appeals judgment. We remand this case to that court
which, while retaining jurisdiction, shall remand this case to the Wayne
Circuit Court Family Division for that court to reconsider its Decem-
ber 3, 2018 order terminating respondent’s parental rights to LJI and
LMI. The circuit court shall be directed to specifically address:
(1) whether there is a statutory basis to terminate respondent’s parental
rights to LJI and LMI, see In re JK, 468 Mich 202, 210 (2003); and
(2) whether termination is in LJI’s and LMI’s best interests, taking into
consideration, among other evidence, respondent’s efforts towards so-
briety, see In re Moss, 301 Mich App 76, 90 (2013). The circuit court may,
in its discretion, receive proofs or hold an evidentiary hearing. The
circuit court shall be directed to forward to the Court of Appeals a
written opinion addressing the above issues within 42 days of the Court
of Appeals remand order. The Court of Appeals shall expedite its
consideration of this case. We do not retain jurisdiction.
In re INGRAM, MINORS, No. 160535; Court of Appeals No. 347801.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
vacate the Court of Appeals judgment. We remand this case to that court
which, while retaining jurisdiction, shall remand this case to the Wayne
Circuit Court Family Division for that court to reconsider its Decem-
ber 3, 2018 order terminating respondent’s parental rights to LJI and
LMI. The circuit court shall be directed to specifically address:
(1) whether there is a statutory basis to terminate respondent’s parental
rights to LJI and LMI, see In re JK, 468 Mich 202, 210 (2003); and
(2) whether termination is in LJI’s and LMI’s best interests, taking into
consideration, among other evidence, respondent’s efforts towards so-
briety, see In re Moss, 301 Mich App 76, 90 (2013). The circuit court may,
in its discretion, receive proofs or hold an evidentiary hearing. The
circuit court shall be directed to forward to the Court of Appeals a
written opinion addressing the above issues within 42 days of the Court
of Appeals remand order. The Court of Appeals shall expedite its
consideration of this case. We do not retain jurisdiction.

Reconsideration Granted February 5, 2020:

WIMMER V MONTANO, Nos. 159211, 159212, 159213, and 159214; Court

of Appeals Nos. 340339, 340409, 340830, and 340996. Leave to appeal
denied at 504 Mich 979. On order of the Court, the motion for
982 505 MICHIGAN REPORTS
reconsideration of this Court’s October 17, 2019 order is considered, and
it is granted. We vacate our order dated October 17, 2019. The applica-
tion for leave to appeal the February 5, 2019 and February 6, 2019
orders of the Court of Appeals is denied, because we are not persuaded
that the questions presented should be reviewed by this Court. The
motion to correct the record and for other relief is denied.
WIMMER V MONTANO, Nos. 159263, 159264, 159265, and 159266; Court
of Appeals Nos. 340339, 340409, 340830, and 340996. Leave to appeal
denied at 504 Mich 980. On order of the Court, the motion for
reconsideration of this Court’s October 17, 2019 order is considered, and
it is granted. We vacate our order dated October 17, 2019. The applica-
tion for leave to appeal the January 24, 2019 order of the Court of
Appeals is denied, because we are not persuaded that the questions
presented should be reviewed by this Court. The motion to correct the
record and for other relief is denied.

Leave to Appeal Granted February 5, 2020:

LAW OFFICES OF JEFFREY SHERBOW, PC V FIEGER & FIEGER, PC, No.

159450; reported below: 326 Mich App 684.

Leave to Appeal Denied February 5, 2020:

AFHOLTER V MATUK, No. 157566; Court of Appeals No. 336059.

CAVANAGH, J., did not participate due to her prior relationship with
Garan Lucow Miller, PC.
PEOPLE V LAMPE, No. 159678; reported below: 327 Mich App 104.
ESTATE OF DANIEL GEORGE TRUEBLOOD V P & G APARTMENTS, LLC, No.
159720; reported below: 327 Mich App 275.
HUTCHINSON V INGHAM COUNTY HEALTH DEPARTMENT, No. 159798; re-
ported below: 328 Mich App 108.
MCLEAN V BERGER REALTY GROUP, INC, No. 159962; Court of Appeals
No. 341603.
PEOPLE V QUEZADA, No. 160252; Court of Appeals No. 342656.

Reconsideration Denied February 5, 2020:

WIMMER V MONTANO, Nos. 159175 and 159176; Court of Appeals Nos.

340339 and 340830. Leave to appeal denied at 504 Mich 979.

Abeyance Order Entered February 5, 2020:

COUNCIL OF ORGANIZATIONS AND OTHERS FOR EDUCATION ABOUT PAROCHIAID

V STATE OF MICHIGAN, No. 158751; reported below: 326 Mich App 124. On
order of the Court, the motion for peremptory reversal is denied. By
 ORDERS IN CASES 983
order of June 24, 2019, leave to appeal the October 16, 2018 judgment of
the Court of Appeals was granted, 504 Mich 896, and this case was
scheduled for argument as part of the March 2020 session calendar. It
now appears to this Court that the case of Espinoza v Montana Dep’t of
Revenue, cert gtd US ; 139 S Ct 2777 (2019) (Docket No.
18-1195), is pending before the United States Supreme Court and that
the decision in that case may resolve an issue raised in the present case.
Therefore, we adjourn the oral argument of this case, and we order that
this case be held in abeyance pending the decision in Espinoza.
MARKMAN, J. (dissenting). I respectfully dissent to yet another delay
in resolving the constitutionality of MCL 388.1752b, a significant school
funding measure enacted by our Legislature in 2016. With oral argument
now likely to be rescheduled to the next term of the Court, it will have
been nearly five years from the time of the enactment of this measure that
a determination of constitutionality may perhaps emerge. Even more
troubling is that during the entirety of this period, the implementation of
this law will have been precluded by the judiciary of this state—first, as
the result of delay occasioned by this Court’s decision to deny constitu-
tional guidance to then-Governor Snyder who sought an advisory opinion
in this regard; second, as the result of a preliminary injunction imposed
by a judge of the Court of Claims; third, as the result of refusals by the
Court of Appeals and this Court to review the preliminary injunction;
fourth, as the result of a permanent injunction subsequently imposed by
the Court of Claims; fifth, as the result of continuing litigation in the
Court of Appeals; and finally, as the result of this Court having granted
leave to appeal last summer and now choosing not to finally resolve the
case until perhaps the Court’s 2020–2021 term. If ultimately this Court
holds MCL 388.1752b to be unconstitutional, so be it, but in the face of the
lower court’s ceaseless injunction, we have failed, in my judgment, to
show a sufficient sense of urgency in order either to strike down the law
or to allow the Legislature’s will to be done. In other words, whether MCL
388.1752b is ultimately sustained or nullified, it is long overdue that the
highest court of this state finally decide this matter so that the product of
our representative process is no longer held in limbo. As United States
Supreme Court Justice Samuel Alito has observed, “the longer an
injunction [against a state defendant] . . . stays in place, the greater the
risk that it will improperly interfere with a State’s democratic processes.”
Horne v Flores, 557 US 433, 453 (2009). See also MCR 7.305(B)(4)(b).
On behalf of the citizenry, legislative majorities in 2016 enacted MCL
388.1752b, presumably with the view that by reimbursing nonpublic
schools for compliance costs associated with state-imposed “health, safety,
or welfare” requirements, they were furthering in some manner the
“health, safety, or welfare” of nonpublic school students. And if this law is
ultimately deemed to be constitutional, nonpublic school students will
have been deprived of benefits to which they were lawfully entitled for
nearly five years. A student who was enrolled in a nonpublic elementary
school in the fourth grade when the law was enacted will be enrolled in
high school by the time this Court decides its constitutionality.
984 505 MICHIGAN REPORTS
Today, merely two weeks after finally scheduling oral argument of
this case, the Court adjourns this same argument because “[i]t now
appears to this Court that the case of Espinoza v Montana Dep’t of
Revenue, cert gtd US ; 139 S Ct 2777 (2019), is pending
before the United States Supreme Court and that the decision in that
case may resolve an issue raised in the present case.” While, indeed,
Espinoza “may” help resolve an issue in the present case, it is also
possible that Espinoza “may not” help, and it is also quite certain that
resolution of issues will be helped—conceivably in a decisive
manner—by the Supreme Court’s recent decision in Trinity Lutheran
Church of Columbia, Inc v Comer, 582 US ; 137 S Ct 2012 (2017),
a case unaccountably unmentioned in our order granting leave to
appeal. In order to allow this Court the benefit of the Supreme Court’s
guidance in Espinoza, while also taking into consideration the extraor-
dinary circumstances of the ongoing injunction, I would not postpone
oral argument, but would instead proceed with such argument; hold our
final decision in abeyance for Espinoza, which is to be decided no later
than the end of June; and then issue our decision prior to the close of our
term at the end of July. I would not further delay consideration of this
case, especially when this Court should have been well aware of the
potential connection between these cases at least seven months ago
when the Supreme Court first granted certiorari to hear Espinoza, and
at a time when it was at least conceivable that a thoughtful decision
from this Court might have influenced the Supreme Court in Espinoza.
See generally Sutton, 51 Imperfect Solutions: States and the Making of
American Constitutional Law (New York: Oxford Univ Press, 2018).
CLEMENT, J., not participating due to her prior involvement as chief
legal counsel for the Governor.

Summary Disposition February 7, 2020:

PEOPLE V CANO-MONARREZ, No. 160285; Court of Appeals No. 343547.

Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
reverse the judgment of the Court of Appeals as to the scoring of
Offensive Variable (OV) 17, and we remand this case to the Kent Circuit
Court for resentencing. The prosecuting attorney has conceded that the
trial court erred in scoring OV 17, MCL 777.47. Because correcting the
OV score would change the applicable guidelines range, resentencing is
required. People v Francisco, 474 Mich 82 (2006). In all other respects,
leave to appeal is denied, because we are not persuaded that the
remaining question presented should be reviewed by this Court.
PEOPLE V RICHARD BROWN, No. 160563; Court of Appeals No. 350327.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
reverse the June 25, 2019 order of the Lapeer Circuit Court denying the
defendant’s motion to quash the bindover. MCL 766.12 provides that, at
a preliminary examination, “[a]fter the testimony in support of the
prosecution has been given, the witnesses for the prisoner, if he have
any, shall be sworn, examined and cross-examined . . . .” (Emphasis
added.) In this case, the district court did not permit the defendant to
 ORDERS IN CASES 985
call witnesses. The district court’s decision in this regard fell outside the
range of principled outcomes and constituted an abuse of discretion. See
People v Shami, 501 Mich 243, 250-251 (2018).
We remand this case to the 71-A District Court for further proceed-
ings to allow the defendant to call witnesses. The motion to stay trial is
granted pending completion of the proceedings ordered on remand.

Order Granting Oral Argument in Case Pending on Application for

Leave to Appeal Entered February 7, 2020:

LIVINGS V SAGE’S INVESTMENT GROUP, LLC, No. 159692; Court of Appeals

No. 339152. The appellant shall file a supplemental brief within 42 days
of the date of this order addressing: (1) whether the plaintiff’s employ-
ment is a relevant consideration in determining whether a condition is
effectively unavoidable, Hoffner v Lanctoe, 492 Mich 450 (2012), and
Perkoviq v Delcor Homes-Lake Shore Pointe Ltd, 466 Mich 11 (2002); and
(2) whether there was a question of fact concerning whether the parking
lot constituted an effectively unavoidable condition. In addition to the
brief, the appellant shall electronically file an appendix conforming to
MCR 7.312(D)(2). In the brief, citations to the record must provide the
appendix page numbers as required by MCR 7.312(B)(1). The appellee
shall file a supplemental brief within 21 days of being served with the
appellant’s brief. The appellee shall also electronically file an appendix,
or in the alternative, stipulate to the use of the appendix filed by the
appellant. A reply, if any, must be filed by the appellant within 14 days
of being served with the appellee’s brief. The parties should not submit
mere restatements of their application papers.

Leave to Appeal Denied February 7, 2020:

RESOURCE POINT, LLC V ADDOLUX, LLC, No. 158632; Court of Appeals

No. 338338.
ZAHRA, J. (dissenting). I disagree with the Court’s decision to deny
defendant’s application for leave. Because the Court of Appeals failed to
defer to the trial court’s assessment of witness credibility,1 I would
reverse in part the judgment of the Court of Appeals as to damages and
remand this case to the Oakland Circuit Court for reinstatement of its
damages award.2
Defendant contracted with plaintiff to provide Information Technol-
ogy work for Gordon Food Service (GFS) from October 2012 through
February 8, 2014 (referred to as the “first engagement”). The contract

1
See MCR 2.613(C) and In re Miller, 433 Mich 331, 337 (1989).
2
I agree with and would leave intact the portion of the Court of
Appeals’ opinion that concludes the trial court erred by denying plain-
tiff’s request for attorney fees as contemplated by the noncompete
agreement as part of the damages award.
986 505 MICHIGAN REPORTS
included a noncompete agreement that expired on August 8, 2015.
Defendant violated the noncompete agreement by soliciting work from
GFS. Specifically, in June 2015, plaintiff contacted GFS so as to arrange
additional work for defendant, but it learned that defendant had already
directly solicited and obtained employment at GFS (referred to as the
“second engagement”).
Plaintiff sued and, following a bench trial, the trial court found that
defendant had breached the noncompete agreement and was liable to
plaintiff for breach of contract. The more difficult issue was determining
damages. The Court of Appeals provided this summary:
During the first GFS engagement, GFS paid [plaintiff] $160 per
hour of services; [plaintiff] in turn paid [defendant] $115 an hour,
leaving [plaintiff] with a profit of $45 per hour. After six months,
GFS increased the pay rate to $180 per hour. [Plaintiff] paid
[defendant] $130 an hour, for a profit of $50 per hour. Under both
pay rates, [plaintiff] retained 28% of the GFS payment. During
the second GFS engagement, [defendant] worked for a different
GFS department. Under this contract, GFS paid [defendant] $150
per hour. And from June 2015 through the time of trial, [defen-
dant] had worked a total of 2,896 hours.[3]

The Court of Appeals also summarized the disagreement about

damages related to defendant’s work during the second GFS engage-
ment:
[Plaintiff] provided evidence that it bore some overhead from
negotiating the first contract between GFS and [defendant], but
asserted that with the initial work under its belt, these costs
would not be duplicated in a second placement between GFS and
[defendant] . . . . Accordingly, [plaintiff] asserted, its share of the
payments during [defendant]’s second GFS engagement would
have been “pure profit.” Overall, [plaintiff] sought $180,800 in
damages.[4]

The trial court “took judicial notice that [plaintiff]’s overall profit
margin was 12.5% and determined to award [plaintiff] only 12.5% of the
payments [plaintiff] would have retained during [defendant]’s second
GFS engagement, a total of $22,600.”5 The trial court ruled that “this
[c]ourt’s measure of damages is the . . . profit margin that [plaintiff]
would have made on [defendant]’s job starting on June 8th of . . . 2015
and continuing through the four months, through May 25th of
2017 . . . .”

3
Resource Point LLC v Addolux LLC, unpublished per curiam opinion
of the Court of Appeals, issued September 20, 2018 (Docket No. 338338),
p 2.
4
Id.
5
Id.
 ORDERS IN CASES 987
The Court of Appeals vacated the $22,600 damages portion of the
trial court judgment and instead remanded the case for entry of a
judgment awarding plaintiff $147,588 in damages for lost profits. This is
how the panel arrived at that figure:

As noted, the parties’ noncompete agreement provided that

[defendant] was required “to indemnify and hold harmless” [plain-
tiff] “for any and all loss, costs, and other liability incurred or
threatened” as a result of [defendant]’s breach. To calculate [plain-
tiff]’s loss, the circuit court was required to determine the value of
[defendant]’s contract for the second GFS engagement. [Plaintiff]
presented evidence that at the time of trial, [defendant] had
worked 2,896 hours for GFS, for an average of 38.61 hours per
week. Other uncontroverted evidence established that [defen-
dant]’s work would continue for at least another four months, or 16
weeks, under the second GFS engagement. Multiplying 38.61
hours per week by 16 weeks amounts to an additional 617.76
hours. Rounding that number and adding it to the hours [defen-
dant] had already worked amounts to a total of 3,514 hours. The
second GFS engagement was therefore worth 3,514 hours of work.
The value of the hours then becomes critical to determining
[plaintiff]’s lost profits. [Plaintiff] presented evidence that GFS
paid $150 per hour under the second GFS engagement. Multiply-
ing the total number of hours worked (3,514) by this hourly rate
amounts to a total of $527,100—i.e., the total value of the second
GFS engagement was $527,100.
[Plaintiff] would not have been entitled to the entire $527,100,
as it would have been required to turn a portion of this amount
over to [defendant] as his compensation. Accordingly, the trial
court was next required to calculate how much of the total
contract value would have flowed into [plaintiff]’s pockets. To
arrive at this figure, it is appropriate to consider past dealings
between the parties involved. As noted, the undisputed evidence
shows that [plaintiff] retained 28% of GFS’s payment during
[defendant]’s first GFS engagement. The evidence of these previ-
ous dealings allowed [plaintiff] to prove its damages with reason-
able certainty. Health Call of Detroit [v Atrium Home & Health
Care Servs, Inc, 268 Mich App 83, 96 (2005)]. The proper measure
of damages was 28% of the value of the contract for the second
GFS engagement; 28% of $527,100 amounts to a total of $147,588
in lost profits.[6]

In my view, the discrepancy between the trial court and the Court of
Appeals is attributable to determination of overhead. Plaintiff main-
tained there would was no overhead and that the referral fee for the
second GFS engagement would have been 100% profit. The trial court
understandably found this contention dubious and expressly rejected
the testimony that supported this contention. Specifically, the court

6
Resource Point LLC, unpub op at 4.
988 505 MICHIGAN REPORTS
found that Rita Mehta, plaintiff’s vice president, was not credible. It is
within the purview of the trier of fact to determine credibility, and great
deference is given to the fact-finder on that issue. Having found Mehta
not credible, the trial court calculated damages by applying plaintiff’s
2015 profit margin to the gross income it claimed it would have received
from the second GFS engagement. The use of the 12.5% profit margin
properly accounted for the net profit loss. In my view, the trial court’s
methodology was proper and reasonable. The Court of Appeals improp-
erly failed to defer to the trial court’s assessment of witness credibility.
I would reverse in part the judgment of the Court of Appeals as to
damages and remand this case to the Oakland Circuit Court for
reinstatement of its damages award.
MARKMAN, J., joins the statement of ZAHRA, J.

Motion to Vacate Granted February 14, 2020:

In re NJ PENDER, MINOR, No. 160151; Court of Appeals No. 345008. By

order of November 27, 2019, the movants were directed to file a brief
citing legal authority in support of their joint motion to vacate the
decision of the Court of Appeals, vacate the trial court’s order terminat-
ing the respondent-mother’s parental rights, and remand to the Wayne
Circuit Court with instructions to offer to transfer the case to New York.
On order of the Court, the brief having been received, the application for
leave to appeal the July 9, 2019 judgment of the Court of Appeals and
joint motion are again considered. The joint motion is granted. MCR
7.316(A)(7). Because of the unique circumstances of this case, the Wayne
Circuit Court’s June 26, 2018 order terminating the respondent-
mother’s parental rights, and that part of the Court of Appeals July 9,
2019 unpublished opinion (Docket No. 345008) concerning the
respondent-mother’s parental rights, are vacated. See MCR 7.316(A)(7)
(stating that the Supreme Court may “enter other and further orders
and grant relief as the case may require”). The application for leave to
appeal is dismissed. We remand this case to the Wayne Circuit Court for
further proceedings not inconsistent with this order.

Order Granting Oral Argument in Case Pending on Application for

Leave to Appeal Entered February 14, 2020:

LEAGUE OF WOMEN VOTERS OF MICHIGAN V SECRETARY OF STATE and SENATE

AND HOUSE REPRESENTATIVES V SECRETARY OF STATE, Nos. 160907 and
160908; Court of Appeals Nos. 350938 and 351073. On order of the
Court, the application for leave to appeal the January 27, 2020 judg-
ment of the Court of Appeals and the motion to intervene are considered.
We direct the Clerk to schedule oral argument on the application and
the motion for March 11, 2020 at 9:30 a.m. MCR 7.305(H)(1).
The parties may file additional briefs by 5:00 p.m. on February 28,
2020, addressing: (1) whether this Court should grant the motion to
intervene; (2) whether the Michigan Senate and the Michigan House of
Representatives have standing to seek declaratory relief in the Court of
 ORDERS IN CASES 989
Claims; (3) whether the 15% cap on ballot proposal signatures per
congressional district in 2018 PA 608 is constitutional; and (4) whether
2018 PA 608’s requirements that paid petition circulators file a pre-
circulation affidavit and check a disclosure box on the face of circulated
petitions are constitutional.
The time allowed for oral argument shall be 30 minutes for each side.
MCR 7.314(B)(2).
Persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae. Amicus curiae briefs shall be filed by 5:00 p.m. on
February 28, 2020.

Leave to Appeal Denied February 14, 2020:

HERRON V MONROE MOTORSPORTS, INC, No. 160906; Court of Appeals No.

350827.

Leave to Appeal Denied February 25, 2020:

PEOPLE V LIPSEY, No. 160662; Court of Appeals No. 349503.

Summary Disposition February 28, 2020:

In re CURRY, MINORS, Nos. 160626 and 160627; Court of Appeals Nos.

343669 and 350113. On order of the Court, the application for leave to
appeal the November 12, 2019 judgment of the Court of Appeals is
considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to
appeal, we reverse the judgment of the Oakland Circuit Court termi-
nating respondent’s parental rights, and we reverse the judgment of the
Court of Appeals affirming the circuit court.
The trial court terminated respondent’s parental rights to three
minor children, TLC, SLC, and LAC. In 2016, LAC responded affirma-
tively to a leading question from her aunt indicating respondent had
sexually abused her. The aunt reported the allegation to her mother (the
children’s maternal grandmother) who, in turn, reported the allegation
to the children’s mother. A referral of allegations of sexual abuse was
reported to Child Protective Services (CPS), prompting a CPS worker to
visit the home and meet with the mother and LAC. The mother agreed
to bring all three children to Care House for a forensic interview and to
prevent respondent from contacting the children. Based on an allegation
that all three children had been sexually abused, in addition to an
allegation that respondent and the children’s mother threatened the
children with a “whooping” if they discussed the allegation, a petition for
temporary custody against both respondent and the children’s mother
was filed by the Department of Health and Human Services (DHHS).
Following a hearing and upon a finding of reasonable cause that one or
more of the allegations was true, the circuit court ordered the children
to be taken into custody.
990 505 MICHIGAN REPORTS
DHHS subsequently amended the petition against both parents
seeking permanent custody of all three children. Several additional
hearings were held and the circuit court eventually ruled that the aunt’s
statement regarding LAC’s statement of abuse and the statement by
LAC’s sibling regarding respondent threatening a “whooping” were ad-
missible under the “tender years” hearsay exception in MCR 3.972(C)(2).
The case proceeded to trial.
Viewed in a light most favorable to the petitioner, the facts established
in the circuit court record are as follows. In 2016, LAC’s aunt was driving
3-year-old LAC and her 5-year-old cousin. The girls were playing with
dolls in the backseat. The aunt later recalled that after the cousin said she
was going to kiss her doll on its forehead, LAC said she was going to kiss
her doll on the “kitty,” a euphemism used in the family to refer to a
vagina. The aunt asked, “[W]ho told her that?” and LAC answered that
respondent had. The aunt then asked if respondent kissed LAC’s vagina,
and she said “yes.” LAC would not repeat the statement in a forensic
interview. However, in the interview, LAC did respond affirmatively to
leading questions such as whether it was raining inside, and whether she
was 10 years old. Additionally, though SLC never disclosed any abuse in
her forensic interview, she said she would “get her butt whooped” for
talking about touches to her butt or vagina. LAC’s mother testified that
when she told respondent about the statement, he said LAC was “exag-
gerating.” LAC’s mother told respondent he needed to talk with LAC and
“let her know what good touches and bad touches are basically.” Respon-
dent denied any abuse to LAC’s mother. Regarding the statement, LAC’s
mother testified, “I don’t know who she did or didn’t learn it from which
is why I took her to the doctor to see what was going on.” LAC’s mother
talked to LAC about the statement and “didn’t know what to believe
because she went back and forth.”1
In an order entered on November 14, 2017, following trial, the circuit
court held that jurisdiction under MCL 712A.2(b)(1) and (2) had been
established by a preponderance of the evidence as to respondent but
that jurisdiction had not been established with respect to the children’s
mother. The circuit court also held that statutory grounds for termina-
tion of respondent’s parental rights under MCL 712A.19b(3)(b)(i), (g)
and (j) had been proven by clear and convincing evidence. In an order
entered on April 12, 2018, the circuit court held that termination of
respondent’s parental rights was in the best interests of the children.
Respondent appealed, and the Court of Appeals affirmed. We vacated
the Court of Appeals judgment in part, and remanded the case to the
circuit court to reconsider its order terminating respondent’s parental
rights and to apply the clear and convincing evidentiary standard to the
allegations of sexual abuse. In re Curry, Minors, 503 Mich 1023 (2019).
On remand, the circuit court held an evidentiary hearing at which one

1
At the removal hearing, the CPS worker testified that all three
children disclosed sexual abuse during the Care House interview.
However, review of the interviews at the subsequent hearings evidenced
that this allegation was not substantiated.
 ORDERS IN CASES 991
witness testified, and the court again terminated respondent’s parental
rights. The Court of Appeals affirmed once again. In re Curry, Minors
(On Remand), unpublished per curiam opinion of the Court of Appeals,
issued November 12, 2019 (Docket Nos. 343669 and 350113).
The Court of Appeals correctly stated the applicable evidentiary
standard and standard of review regarding termination:

Under MCL 712A.19b(3), petitioner has the burden of proving

a statutory ground for termination by clear and convincing
evidence. See MCR 3.977(A)(3) and 3.977(H)(3); In re Trejo, 462
Mich 341, 356; 612 NW2d 407 (2000).
“[T]he clear and convincing evidence standard [is] the most
demanding standard applied in civil cases[.]” In re Martin, 450
Mich 204, 227; 538 NW2d 399 (1995) (brackets added). Evidence
is clear and convincing when it

“produce[s] in the mind of the trier of fact a firm belief or

conviction as to the truth of the allegations sought to be
established, evidence so clear, direct and weighty and con-
vincing as to enable [the fact-finder] to come to a clear
conviction, without hesitancy, of the truth of the precise
facts in issue.” . . . Evidence may be uncontroverted, and yet
not be “clear and convincing.” . . . Conversely, evidence may
be “clear and convincing” despite the fact that it has been
contradicted. [Id., citing In re Jobes, 108 NJ 394, 407-408;
529 A2d 434 (1987).]

An appellate court “review[s] for clear error . . . the court’s

decision that a ground for termination has been proven by clear
and convincing evidence.” In re Trejo, 462 Mich at 356-357. “Clear
error exists when some evidence supports a finding, but a review
of the entire record leaves the reviewing court with the definite
and firm conviction that the lower court made a mistake.” In re
Dearmon, 303 Mich App 684, 700; 847 NW2d 514 (2014). This
Court must defer to the trial court’s special opportunity to
observe the witnesses. Id. [In re Curry, Minors, unpub op at 3.]

This record leaves us with a definite and firm conviction that a

mistake has been made.
Respondent does not challenge the circuit court’s initial authoriza-
tion to take the children into custody, and we see no factual basis to
question the circuit court’s determination that reasonable cause existed
to believe that one or more of the allegations of abuse were true. We
disagree, however, with the circuit court’s determination that a statu-
tory basis to terminate respondent’s parental rights was established by
clear and convincing evidence. The statutory grounds for termination
and the best-interest determination all turn on the factual finding
regarding whether respondent sexually abused one of the children. That
finding is based on a 3-year-old child’s response to two open-ended
992 505 MICHIGAN REPORTS
questions and one leading question asked by her aunt, and a 6-year-old
child’s statement that respondent threatened a “whooping” for discuss-
ing the allegations.
Regarding the initial statement, we note that the child did not repeat
the statement in the forensic interview. But the child affirmatively
responded to leading questions such as whether it was raining indoors
and whether she was 10 years old. Appellate courts give deference to a
trial court’s opportunity to observe a witness, but the trial court did not
actually observe the statement characterized by the aunt as alleging
abuse.2 Further, the trial court seemed to place the burden on respon-
dent to disprove the statement. Finding respondent’s various theories
on why a 3-year-old might make such a statement unsatisfactory, the
trial court concluded it had to take the statement at “face value.” In
doing so, the court shifted the burden to respondent to disprove the
statement.
Regarding the indication that respondent threatened another child
with a “whooping” for discussing the allegations, these are hearsay
accounts from a 6-year-old. The record does not seem clear to us that
whatever was said was an attempt at thwarting an investigation rather
than an inartfully phrased instruction about what topics of discussion
are generally appropriate.
Even assigning these two pieces of evidence the most weight they
might be due, we cannot see how any reasonable trier of fact could
consider this evidence “so clear, direct and weighty and convincing as to
enable [the fact-finder] to come to a clear conviction, without hesitancy,
of the truth of the precise facts in issue.” In re Martin, 450 Mich at 227
(citations and quotation marks omitted). Consequently, we conclude the
trial court abused its discretion. We remand this case to the Oakland
Circuit Court, Family Division to determine whether a basis exists for
the court’s continuing jurisdiction and for further proceedings not
inconsistent with this order. We do not retain jurisdiction.
MARKMAN, J., (dissenting). The majority provides a fair-minded reci-
tation of the record upon which the trial court assumed jurisdiction and
terminated respondent-father’s parental rights, and its decision to
reverse both the trial court and the Court of Appeals is not unreason-
able. Nonetheless, I respectfully dissent.
Before considering whether termination of parental rights is in the
best interest of a child, the trial court must find that clear and
convincing evidence supports at least one statutory ground for termina-
tion. In re Trejo, 462 Mich 341, 355 (2000). Here, the trial court found
that the evidence supported its conclusions that respondent-father had
sexually abused LAC and that there was a reasonable likelihood the
children would suffer additional injury or abuse if placed in his home.
See MCL 712A.19b(3)(b)(i). And an appellate court reviews for clear
error the trial court’s determination that a statutory ground for termi-
nation has been shown. In re Trejo, 462 Mich at 356-357. “Clear error

2
In addition, the aunt testified at trial that she did not like respon-
dent, ranking her dislike for him a “10” on a scale of 1 to 10.
 ORDERS IN CASES 993
exists when some evidence supports a finding, but a review of the entire
record leaves the reviewing court with the definite and firm conviction
that the lower court made a mistake.” In re Dearmon, 303 Mich App 684,
700 (2014). In reviewing the record, an appellate court must “giv[e] due
regard to the trial court’s special opportunity to observe the witnesses.”
In re BZ, 264 Mich App 286, 296-297 (2004). Finally, for this Court to
intervene, respondent-father was obligated to demonstrate that the
Court of Appeals’ decision to affirm the trial court “is clearly erroneous
and will cause material injustice[.]” MCR 7.305(B)(5)(a).
This admittedly is a difficult case. However, in light of the following,
I am unable to concur with the majority that the trial court “clearly
erred” when it found that “clear and convincing” evidence supported its
conclusion that respondent-father sexually abused LAC. First, it is
highly atypical, and indicative of sexual abuse, for a three-year-old to
spontaneously suggest an act of oral sex. Second, in response to her
aunt’s nonleading and open-ended question as to who gave her the idea
to kiss her doll goodnight on the “kitty,” LAC answered “My Daddy.”
Third, respondent-father initially responded to the allegation that he
had sexually abused his daughter by professing that LAC was “exag-
gerating,” a somewhat odd response that could reasonably be viewed as
an attempt by respondent-father to minimize the extent of his inappro-
priate conduct rather than to affirmatively deny the allegation. Fourth,
while LAC did not restate the allegation in a forensic interview, a
reasonable observer might ascribe this to intervening actions by LAC’s
parents subsequent to the initial allegation to threaten one of LAC’s
siblings with a “whooping” if the allegations were discussed any further.
Fifth, LAC’s mother’s testified that, when she first discussed the
allegation with LAC, the child “went back and forth” concerning the
allegation, indicating that although LAC did not restate the allegation
at the forensic interview, in much closer proximity to the initial
comments to her aunt, the child did restate the allegation to her mother.
Finally, I am unpersuaded by the majority’s effort to minimize the trial
court’s conclusion that LAC’s aunt testified credibly. While the majority
correctly points out that the aunt disliked respondent-father before the
critical interaction with her niece, a close reading of the hearing
transcript suggests nothing incompatible with the trial court’s conclu-
sion that the aunt testified forthrightly, providing what information she
possessed, presenting a straightforward and unembellished version of
events, and acknowledging when she lacked adequate information.
Having considered the deference owed the trial court’s credibility
determination, the available evidence, and the inferences that could
reasonably have been drawn from such evidence by the trial court, I am
not left with a “definite and firm” conviction that the court erred in
terminating respondent-father’s parental rights. Nor am I convinced that
respondent-father has shown that the Court of Appeals reached a “clearly
erroneous” decision in affirming the trial court. Thus, while I appreciate
the basis for the majority’s position, I do not believe the trial court’s (or
the Court of Appeals’) positions to be unreasonable. Therefore, I respect-
fully dissent.
994 505 MICHIGAN REPORTS
Summary Disposition March 3, 2020:

PARADISO V CITY OF ROYAL OAK, No. 159337; Court of Appeals No.

340757. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to
appeal, we vacate the judgment of the Court of Appeals and we remand
this case to the Court of Appeals for reconsideration in light of Wigfall v
City of Detroit, 504 Mich 330 (2019).
PEOPLE V JASON ROBINSON, No. 159804; Court of Appeals No. 348217.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
remand this case to the Court of Appeals for consideration, as on leave
granted, of whether the St. Clair Circuit Court correctly scored Offense
Variable (OV) 1, MCL 777.31, and OV 3, MCL 777.33. See People v
McGraw, 484 Mich 120, 135 n 45 (2009).

Leave to Appeal Denied March 3, 2020:

PEOPLE V ROBERT JOHNSON, No. 158445; Court of Appeals No. 329742.

PEOPLE V FREDERICK YOUNG, No. 159072; Court of Appeals No. 344196.
By order of December 23, 2019, the prosecuting attorney was directed to
answer the application for leave to appeal the December 7, 2018 order of
the Court of Appeals. On order of the Court, the answer having been
received, the application for leave to appeal is again considered, and it
is denied, because we are not persuaded that the questions presented
should be reviewed by this Court. For purposes of MCR 6.502(G)(1), the
Court notes that, although the defendant’s motion has been styled as a
motion for relief from judgment by the courts below, it should not be
regarded as a motion for relief from judgment in any future case. The
defendant actually filed a motion for a new trial under MCR 6.431,
which was properly denied by the trial court for lack of merit. It was also
untimely. MCR 6.431(A). The application for leave to appeal to the Court
of Appeals was properly denied, but due to the lack of merit in the
grounds presented, not under the rules of MCR 6.501 et seq. The order
of the Court of Appeals is vacated to the extent that it is inconsistent
with this order. The motion for peremptory reversal is denied.
PEOPLE V CLAY, No. 159138; Court of Appeals No. 339659.
PEOPLE V BEBEE, No. 159392; Court of Appeals No. 339760.
BODNAR V ST JOHN PROVIDENCE, INC, No. 159451; reported below: 327
Mich App 203.
PEOPLE V OWINGS, No. 159503; Court of Appeals No. 340111.
BACK IN MOTION CHIROPRACTIC, DC, PLLC V WESTFIELD INSURANCE COM-
PANY,No. 159658; Court of Appeals No. 341791.
GLOBAL PRODUCTS, INC V MAYSER POLYMER USA, INC, No. 159671; Court
of Appeals No. 339451.
PEOPLE V CAFARELLI, No. 159694; Court of Appeals No. 340802.
 ORDERS IN CASES 995
PEOPLE V AVERY, No. 159708; Court of Appeals No. 341975.
LONG V FIEGER and KOTT-MILLARD V FIEGER, Nos. 159744 and 159745;
Court of Appeals Nos. 341412 and 341414.
PEOPLE V ANTONIO CUMMINGS, No. 159759; Court of Appeals No.
343433.
PEOPLE V RILEY, No. 159780; Court of Appeals No. 339564.
PEOPLE V ROCHE, No. 159794; Court of Appeals No. 346298.
PEOPLE V DINWIDDIE, No. 159892; Court of Appeals No. 347256.
PEOPLE V COCHRAN, No. 159900; Court of Appeals No. 338951.
PEOPLE V SEEKINS, No. 159951; Court of Appeals No. 333491.
PEOPLE V GROVE, No. 159969; Court of Appeals No. 339118.
PEOPLE V SOLOMON, No. 159972; Court of Appeals No. 346436.
JAWAD A SHAH, MD, PC V FREMONT INSURANCE COMPANY, No. 159979;
Court of Appeals No. 340441.
PEOPLE V CURTIS WOODS, No. 160005; Court of Appeals No. 348546.
PEOPLE V JEREMY WALKER, No. 160006; Court of Appeals No. 347350.
PEOPLE V CAVARI BROWN, No. 160061; Court of Appeals No. 342946.
PEOPLE V SALYERS, No. 160076; Court of Appeals No. 341162.
PEOPLE V HILLARD, No. 160100; Court of Appeals No. 348919.
PEOPLE V HOWARD, No. 160146; Court of Appeals No. 343819.
PEOPLE V ZACHARY BURNS, No. 160169; Court of Appeals No. 347940.
THE ROMANIAN ORTHODOX EPISCOPATE OF AMERICA V CARSTEA, No. 160185;
Court of Appeals No. 347497.
COMPOSTO V ALBRECHT, No. 160187; reported below: 328 Mich App 496.
PEOPLE V RYAN, No. 160232; Court of Appeals No. 348099.
MCCORMACK, C.J., did not participate because of her prior involve-
ment in a related case.
PEOPLE V MESSENGER, No. 160267; Court of Appeals No. 348976.
PEOPLE V YATOMA, No. 160277; Court of Appeals No. 343020.
PEOPLE V ALONZO, No. 160283; Court of Appeals No. 341973.
PEOPLE V MARK CARTER, No. 160296; Court of Appeals No. 345504.
PEOPLE V MERLO, No. 160300; Court of Appeals No. 350088.
SMITH V MERRITT, No. 160303; Court of Appeals No. 342594.
PEOPLE V KENNEY, No. 160304; Court of Appeals No. 339628.
996 505 MICHIGAN REPORTS
PEOPLE V TOMMY WILLIAMS, No. 160305; Court of Appeals No. 348844.
PEOPLE V MALESKI, No. 160311; Court of Appeals No. 349351.
PEOPLE V SHUKUR BROWN, No. 160348; Court of Appeals No. 344537.
BARTLETT V STATE OF MICHIGAN, No. 160375; Court of Appeals No.
348294.
DEPARTMENT OF TRANSPORTATION V HERNANDEZ, No. 160378; Court of
Appeals No. 350330.
PEOPLE V TERRENCE PERRY, No. 160381; Court of Appeals No. 342385.
PEOPLE V MONCRIEF, No. 160426; Court of Appeals No. 344524.
PEOPLE V JOHNNIE BROWN, No. 160438; Court of Appeals No. 343237.
PEOPLE V ROGALSKI, No. 160465; Court of Appeals No. 349030.
PEOPLE V GIUCHICI, No. 160475; Court of Appeals No. 350021.
PEOPLE V ROBERT MCCOY, No. 160477; Court of Appeals No. 340306.
PEOPLE V CHARLES MALONE, No. 160479; Court of Appeals No. 345775.
PEOPLE V JOHN EVANS, No. 160481; Court of Appeals No. 349125.
GRIEVANCE ADMINISTRATOR V FRIEDMAN, No. 160483.
CAVANAGH, J., did not participate due to her prior service as a member
of the Attorney Grievance Commission.
PEOPLE V DABISH, No. 160486; Court of Appeals No. 342699.
PEOPLE V NAVARRETE, No. 160507; Court of Appeals No. 343355.
PEOPLE V BUTLER, No. 160516; Court of Appeals No. 349375.
PEOPLE V BILLY MULLINS, No. 160522; Court of Appeals No. 345000.
PEOPLE V BRIAN HALL, No. 160528; Court of Appeals No. 342010.
PEOPLE V FITZGERALD, No. 160538; Court of Appeals No. 341775.
PEOPLE V LAKENDRICK GATES, No. 160546; Court of Appeals No. 350246.
PEOPLE V JARVIS GLENN, No. 160547; Court of Appeals No. 343994.
CASTLE V BOSS EXOTICS, LLC, No. 160553; Court of Appeals No.
349371.
PEOPLE V LECH, No. 160591; Court of Appeals No. 350544.
PEOPLE V DONSHEY JONES, No. 160629; Court of Appeals No. 349253.
BROOKS V BROOKS, No. 160709; Court of Appeals No. 351742.
PEOPLE V FORTUNA, No. 160738; Court of Appeals No. 350786.
 ORDERS IN CASES 997
Superintending Control Denied March 3, 2020:

HOWERTON V ATTORNEY GRIEVANCE COMMISSION, No. 160608.

CAVANAGH, J., did not participate due to her prior service as a member
of the Attorney Grievance Commission.

Reconsideration Denied March 3, 2020:

PEOPLE V CLARENCE MCMILLEN, No. 156647; Court of Appeals No.

332089. Leave to appeal denied at 505 Mich 876.
PEOPLE V DOUGLAS JACKSON, No. 159436; Court of Appeals No. 342075.
Summary disposition order entered at 504 Mich 955.
PEOPLE V TRAVIS CUNNINGHAM, No. 159792; Court of Appeals No.
346943. Leave to appeal denied at 504 Mich 999.
BELL V CITY OF SAGINAW, No. 159813; Court of Appeals No. 341858.
Leave to appeal denied at 505 Mich 864.
PODEWELL V PODEWELL, No. 159837; Court of Appeals No. 341580.
Leave to appeal denied at 505 Mich 870.
PEOPLE V WILLIAM SCHOLTES, No. 159881; Court of Appeals No. 341614.
Leave to appeal denied at 505 Mich 870.
WHITE V CONSOLIDATED RAIL CORPORATION, No. 159906; Court of Appeals
No. 347995. Leave to appeal denied at 504 Mich 1000.
PEOPLE V MICHAEL THOMPSON, No. 159930; Court of Appeals No.
347469. Leave to appeal denied at 504 Mich 1000.
PEOPLE V TIBBS, No. 159931; Court of Appeals No. 347255. Leave to
appeal denied at 504 Mich 1000.
WHITE V DETROIT EAST COMMUNITY MENTAL HEALTH, No. 160201; Court
of Appeals No. 348605. Leave to appeal denied at 505 Mich 863.

Summary Disposition March 6, 2020:

PEOPLE V ULRICH, No. 160387; Court of Appeals No. 349694. Pursuant

to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this
case to the Court of Appeals for consideration as on leave granted.

Leave to Appeal Granted March 6, 2020:

AHMAD V UNIVERSITY OF MICHIGAN, No. 160012; Court of Appeals No.

341299. The parties shall address whether the documents sought by the
plaintiff are within the definition of “public record” in § 2(i) of the
Freedom of Information Act (FOIA), MCL 15.232(i). The time allowed for
oral argument shall be 20 minutes for each side. MCR 7.314(B)(1).
998 505 MICHIGAN REPORTS
Persons or groups interested in the determination of the issue
presented in this case may move the Court for permission to file briefs
amicus curiae.
BERNSTEIN, J., did not participate due to a familial relationship.

Order Granting Oral Argument in Case Pending on Application for

Leave to Appeal Entered March 6, 2020:

PEOPLE V KRUKOWSKI and PEOPLE V CODIE STEVENS, Nos. 160263 and

160264; Court of Appeals Nos. 334320 and 337120. The appellant shall
file a supplemental brief within 42 days of the date of this order
addressing: (1) whether there is sufficient evidence for a rational juror to
conclude beyond a reasonable doubt that defendants committed the
offense of second-degree child abuse, MCL 750.136b(3)(a) and MCL
750.136b(3)(b); and (2) whether the phrase “willful abandonment” in
MCL 750.136b(1)(c) encompasses a parent’s failure to timely seek
professional medical care for his or her child. In addition to the brief, the
appellant shall electronically file an appendix conforming to MCR
7.312(D)(2). In the brief, citations to the record must provide the
appendix page numbers as required by MCR 7.312(B)(1). The appellees
shall file supplemental briefs within 21 days of being served with the
appellant’s brief. The appellees shall also electronically file appendices,
or in the alternative, stipulate to the use of the appendix filed by the
appellant. A reply, if any, must be filed by the appellant within 14 days
of being served with the respective appellees’ brief. The parties should
not submit mere restatements of their application papers.
The total time allowed for oral argument shall be 40 minutes: 20
minutes for the appellant, and 20 minutes for the appellees, to be
divided at their discretion. MCR 7.314(B)(2).
The Criminal Defense Attorneys of Michigan and the Prosecuting
Attorneys Association of Michigan are invited to file briefs amicus
curiae. Other persons or groups interested in the determination of the
issues presented in this case may move the Court for permission to file
briefs amicus curiae.

Leave to Appeal Denied March 6, 2020:

MATHESON V SCHMITT, No. 160931; Court of Appeals No. 347022.

Leave to Appeal Denied March 11, 2020:

PEOPLE V GOGA, No. 160552; Court of Appeals No. 350532.

Leave to Appeal Denied March 13, 2020:

In re CC KEERL, MINOR, No. 160894; Court of Appeals No. 349384.

 ORDERS IN CASES 999
Summary Disposition March 18, 2020:

PEOPLE V PETTIFORD, No. 158027; Court of Appeals No. 343181.

Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
remand this case to the Wayne Circuit Court for an evidentiary hearing,
to determine whether the defendant’s claim of newly discovered evi-
dence entitles him to relief from judgment under MCR 6.508(D). People
v Johnson, 502 Mich 541 (2018). We decline the prosecutor’s request to
stay proceedings on remand pending the completion of the Conviction
Integrity Unit’s investigation, although we do so without prejudice to
the prosecutor seeking such relief from the trial court on remand. We do
not retain jurisdiction.
PEOPLE V BARNER, No. 159231; Court of Appeals No. 345901. Pursuant
to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this
case to the Berrien Circuit Court for an evidentiary hearing. The court
shall determine whether the defendant’s trial counsel was ineffective in
regard to the information and advice counsel provided to the defendant
about the plea offer and, if trial counsel was ineffective, the court shall
reconsider that portion of the defendant’s motion for relief from judg-
ment. We do not retain jurisdiction.
CITY OF WARREN V HOTI, No. 159627; Court of Appeals No. 346148.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
remand this case to the Court of Appeals, which shall hold this case in
abeyance pending its decision in City of Warren v Marjana Hoti (Court
of Appeals Docket No. 346152). After City of Warren v Marjana Hoti is
decided, the Court of Appeals shall reconsider this case in light of that
case. The motion to expand record is denied.
CITY OF WARREN V HOTI, No. 159629; Court of Appeals No. 346152.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
remand this case to the Court of Appeals for consideration as on leave
granted. The motion to expand record is denied.
PEOPLE V THELONIOUS SEARCY, No. 160384; Court of Appeals No.
349169. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to
appeal, we remand this case to the Court of Appeals for consideration as
on leave granted.

Leave to Appeal Granted March 18, 2020:

PEOPLE V KABONGO, No. 159346; Court of Appeals No. 338733. On

order of the Court, the motion for miscellaneous relief is granted. The
application for leave to appeal the December 27, 2018 judgment of the
Court of Appeals is considered, and it is granted, limited to the issues:
(1) whether the prosecution’s exercise of a peremptory challenge against
prospective juror no. 2 violated Batson v Kentucky, 476 US 79 (1986); (2)
whether the trial court erroneously precluded the defendant from
exercising a peremptory challenge against prospective juror no. 5; (3) if
so, whether such an error should be subject to automatic reversal or
1000 505 MICHIGAN REPORTS
harmless error review, Rivera v Illinois, 556 US 148, 162 (2009) (holding
that a trial court’s erroneous denial of a defendant’s peremptory
challenge, standing alone, is not a structural error under the federal
constitution requiring automatic reversal, but that “[s]tates are free to
decide, as a matter of state law, that a trial court’s mistaken denial of a
peremptory challenge is reversible error per se”) and compare, e.g.,
People v Bell, 473 Mich 275, 292-295 (2005) (stating in arguable dictum
that harmless error review applies to such errors) with Hardison v
State, 94 So 3d 1092, 1101 & n 37 (Miss, 2012) (plurality opinion) (citing
“[a]t least five states” that have adopted an automatic reversal rule as a
matter of state law and following those states); and (4) if so, whether
reversal is warranted in this case.
The time allowed for oral argument shall be 20 minutes for each side.
MCR 7.314(B)(1). The Criminal Defense Attorneys of Michigan and the
Prosecuting Attorneys Association of Michigan are invited to file briefs
amicus curiae. Other persons or groups interested in the determination
of the issues presented in this case may move the Court for permission
to file briefs amicus curiae.

Order Granting Oral Argument in Cases Pending on Application for

Leave to Appeal Entered March 18, 2020:

PEOPLE V MAGNANT and PEOPLE V JOHN DAVIS, Nos. 159371 and 159373;
Court of Appeals Nos. 341627 and 341621. The appellants shall file
supplemental briefs within 42 days of the date of this order addressing:
(1) whether MCL 205.428(3) requires proof that the defendants knew
that they were transporting cigarettes in a manner “contrary to” the
Tobacco Products Tax Act (TPTA), MCL 205.421 et seq., see generally
Rehaif v United States, 588 US ; 139 S Ct 2191 (2019); Rambin v
Allstate Ins Co, 495 Mich 316, 327-328 (2014); (2) whether nonsupervi-
sory employees fall within the definition of “transporter” under MCL
205.422(y); and (3) if so, whether the TPTA’s definition of “transporter”
satisfies due process by putting the defendants on fair notice of the
conduct that would subject them to punishment, see People v Hall, 499
Mich 446, 461 (2016). In addition to the briefs, the appellants shall
electronically file appendices conforming to MCR 7.312(D)(2). In the
briefs, citations to the record must provide the appendix page numbers
as required by MCR 7.312(B)(1). The appellee shall file a supplemental
brief within 21 days of being served with the latter of the appellants’
brief. The appellee shall also electronically file an appendix, or in the
alternative, stipulate to the use of the appendices filed by the appel-
lants. Replies, if any, must be filed by the appellants within 14 days of
being served with the appellee’s brief. The parties should not submit
mere restatements of their application papers.
The time allowed for oral argument shall be 30 minutes: 15 minutes
for appellants, to be divided at their discretion, and 15 minutes for
appellee. MCR 7.314(B)(2).
The Criminal Defense Attorneys of Michigan and the Prosecuting
Attorneys Association of Michigan are invited to file briefs amicus
 ORDERS IN CASES 1001
curiae. Other persons or groups interested in the determination of the
issues presented in this case may move the Court for permission to file
briefs amicus curiae. Motions for permission to file briefs amicus curiae
and briefs amicus curiae regarding these cases should be filed in People
v Magnant (Docket No. 159371) only and served on the parties in both
cases.

Leave to Appeal Denied March 18, 2020:

CAN IV PACKARD SQUARE LLC V PACKARD SQUARE LLC, No. 160223;

reported below: 328 Mich App 656.
PEOPLE V HIBBLER, No. 160395; Court of Appeals No. 350122.

Leave to Appeal Granted March 20, 2020:

PEOPLE V LONNIE ARNOLD, No. 160046; reported below: 328 Mich App
592. The parties shall include among the issues to be briefed:
(1) whether indecent exposure by a sexually delinquent person is a
distinct felony “enumerated” in the Michigan Penal Code and subject to
the sentencing guidelines, or whether the offense is subject to the
sentencing guidelines regardless because it is set forth in MCL 777.16q
as a listed felony; (2) whether, when the legislative sentencing guide-
lines provide for a penalty that is inconsistent with the penalty provided
in the Penal Code for an offense, the sentencing guidelines are an
amendment or repeal of inconsistent provisions of the Penal Code by
implication such that the guidelines control, and if so, whether this
comports with Const 1963, art 4, § 25; and (3) whether the rule of lenity
is implicated, see People v Hall, 499 Mich 446, 458 n 38 (2016).
The time allowed for oral argument shall be 20 minutes for each side.
MCR 7.314(B)(1).
The Criminal Defense Attorneys of Michigan and the Prosecuting
Attorneys Association of Michigan are invited to file briefs amicus
curiae. Other persons or groups interested in the determination of the
issues presented in this case may move the Court for permission to file
briefs amicus curiae.

Leave to Appeal Denied March 20, 2020:

TINMAN V BLUE CROSS AND BLUE SHIELD OF MICHIGAN, No. 159416; Court
of Appeals No. 338815.
BLACKWELL V FRANCHI, No. 159491; reported below: 327 Mich App 354.
MCCORMACK, C.J. (concurring). I concur in the majority’s decision to
deny leave because I am not persuaded the Court of Appeals’ opinion
merits further review.
The plaintiff was a guest at a holiday party hosted by the defendants
in their home when she entered an unlit room and was injured from
falling down an eight-inch step. We asked the Court of Appeals to
1002 505 MICHIGAN REPORTS
consider whether the defendants had a duty to warn the plaintiff about
the step. Blackwell v Franchi, 502 Mich 918 (2018). The majority
concluded there was a general duty to warn the plaintiff of a dangerous
condition on their property and that whether the defendants breached
that duty by failing to warn about an eight-inch step down in a dark
room was a question for the jury to decide. Blackwell v Franchi (On
Remand), 327 Mich App 354, 357 (2019).
Our common law and the Restatement of Torts support the panel’s
unremarkable holding as to duty. As property owners, the defendants’
duty to licensees is well settled: they have a duty to warn of conditions
on their property that involve an unreasonable risk of harm to such
licensees when they should expect that their licensees will not discover
or realize the danger. Preston v Sleziak, 383 Mich 442, 453 (1970), citing
Restatement Torts, 2d, § 342, overruled in part on other grounds by Stitt
v Holland Abundant Life Fellowship, 462 Mich 591 (2000).
The Court of Appeals majority used the analytic framework of
general and specific standard of care rather than duty and breach. It
held that “defendants had a general duty to plaintiff as a licensee and
that whether defendants violated that duty by their specific actions or
omissions is a question for the fact-finder.” Id. at 357. This framework
comes from our doctrine. In Moning v Alfono, 400 Mich 425 (1977), we
said:
While the court decides questions of duty, general standard of
care and proximate cause, the jury decides whether there is cause
in fact and the specific standard of care: whether defendants’
conduct in the particular case is below the general standard of
care, including—unless the court is of the opinion that all
reasonable persons would agree or there is an overriding legisla-
tively or judicially declared public policy—whether in the particu-
lar case the risk of harm created by the defendants’ conduct is or
is not reasonable. [Moning, 400 Mich at 438 (citation omitted).]

Moning defined “general standard of care” as “reasonable conduct ‘in

light of the apparent risk,’ ” differentiating it from duty, which it defined
as a “legal obligation.” Moning, 400 Mich at 438. Modern negligence
doctrine (including our own) more commonly uses the term “duty” to
refer to the general standard of care. See, e.g., Riddle v McLouth Steel
Prods Corp, 440 Mich 85, 96 (1992) (explaining that “[o]nce a defen-
dant’s legal duty is established, the reasonableness of the defendant’s
conduct under that standard is generally a question for the jury”). And
Moning’s reference to the “specific standard of care,” or whether the
defendants’ specific conduct met the “general standard of care,” is more
commonly referred to as “breach.” Moning, 400 Mich at 438, 443.1

1
The Court of Appeals majority also cited Restatement Torts, 2d,
§ 342, p 210, to hold that the defendants had a general duty of care to
the plaintiff. Blackwell (On Remand), 327 Mich App at 357. The
concurrence explained why that was correct, concluding that “Restate-
 ORDERS IN CASES 1003
The Court of Appeals majority held that the defendants had a
general duty to warn and that the specific standard of care (or whether
the defendants’ actions fell below the general standard of care) should be
determined by a jury. Blackwell (On Remand), 327 Mich App at 358,
citing Case v Consumers Power Co, 463 Mich 1, 7 (2000). In other words,
the defendants owed a duty to warn the plaintiff about a dangerous
condition on the property that they could expect she would not discover.
Whether the defendants’ failure to warn of this particular condition was
a breach of that duty, the panel also held, was a question of fact. This
was not clear error.
Whether the specific hazard here—an eight-inch step into a dark
room—qualifies as the kind of danger that should come with a warning
is question about which reasonable people could disagree. The dissent
thinks this Court should decide that it is not a danger that needs to come
with a warning as a matter of law, citing Garrett v W S Butterfield
Theatres, 261 Mich 262 (1933) and Bertrand v Alan Ford, Inc, 449 Mich
606 (1995), for support. In other words, the dissent believes a court
should decide this particular question of breach as a matter of law. But
neither case the dissent cites supports its view that the fact-bound
question here can be decided as a matter of law.
Garrett was an ordinary negligence case, and it was not decided on a
motion for summary disposition—instead, it was reversed after a jury
verdict. Garrett, 261 Mich at 264. And the hazards have very little in
common—in Garrett, the step was four and a half inches (not eight) and
the room the plaintiff stepped into was brightly lit. Id. at 263.2
Bertrand consolidated two cases after separate trial courts granted
summary disposition for defendants finding no genuine issues of mate-
rial fact after plaintiffs alleged injuries caused by falling down steps.
Bertrand, 449 Mich at 609. In one, a plaintiff fell down the second of two
six- or seven-inch outdoor steps around noon, which she alleged was
only dangerous because she “ ‘just did not see it.’ ” Id. at 619. The
plaintiff thus did not present any facts supporting that the step posed an
unreasonable risk of harm, and this Court held that her claim was
therefore properly dismissed by a judge because no jury could have
found otherwise. In the other, this Court held there was a genuine issue
of material fact because the step—which was clearly marked with
yellow paint across its entire top corner—may have created an unrea-

ment Torts, 2d, § 342 controls the duty analysis in this case and defines
the duty’s parameters.” Id. at 364 (GLEICHER, J., concurring); see also id.
at 362-363 (citing Preston, 383 Mich at 453; Stitt, 462 Mich 591; and
MacDonald v PKT, Inc, 464 Mich 322, 335 (2001)).
2
Different facts result in different outcomes. Compare this case with
another ordinary negligence step case, Dahlem v Hackley Union Nat’l
Bank & Trust Co, 361 Mich 609 (1960), in which this Court upheld a jury
verdict in favor of a plaintiff who fell down a five- or six-inch step in a
restroom. There, a heavy door with a spring that made the door close
quickly apparently made the step dangerous enough to need a warning.
1004 505 MICHIGAN REPORTS
sonable risk of harm because of its placement near a vending machine
and because of the way a nearby door hinged. Id. at 624. In other words,
we decided that the question of whether the failure to warn of this
particular step’s danger was a question for the fact-finder. Id. at
624-625.
The unique facts in each of those cases (the premises cases and the
ordinary negligence cases) and their holdings support the Court of
Appeals’ holding here. The plaintiff was injured when she entered a
dark room and fell because she was surprised by an eight-inch step
down. The plaintiff thus pled facts showing a more unique danger than
an ordinary step encountered not in the dark. Whether the defendants
should have warned her about it—whether they breached their duty—is
a question for the fact-finder.
The Court of Appeals applied settled law to facts to determine that
while there is a duty to warn a licensee of unreasonable dangers that are
not discoverable upon casual inspection, there is a question of fact
whether the defendants’ failure to warn the plaintiff about this particu-
lar hazard breached that duty. There is nothing incorrect or remarkable
about that holding.
VIVIANO, J., joins the statement of MCCORMACK, C.J.
MARKMAN, J. (dissenting). I respectfully dissent. Plaintiff attended an
informal Christmas party hosted by defendants at their home. When
plaintiff arrived, she was directed by one of the defendants to place her
purse in a small room adjoining the garage, commonly known as a
“mudroom.” Notwithstanding that the room was dark, and that there
was a light switch immediately adjacent to the entranceway, plaintiff
proceeded into the room without turning on the light or otherwise
seeking to ascertain whether it was safe to enter. Plaintiff lost her
balance and fell when she set foot into the room, which was about eight
inches lower than the adjoining hallway.
Plaintiff sued defendants for her injuries on the basis of premises
liability, arguing that defendants breached their duty to “warn, advise
and instruct persons regarding potentially dangerous conditions on the
premises.” Defendants moved for summary disposition, which the trial
court granted on the grounds that “reasonable minds could not differ
that the alleged condition here [the step] was open and obvious.
Moreover, there are no special aspects.” Plaintiff appealed, and the
Court of Appeals, in a split decision, reversed and remanded to the trial
court for further proceedings, stating that “[t]he determination of
whether defendants had a duty to warn plaintiff of the drop-off depends
on how the conflicting testimony regarding whether the drop-off was
open and obvious is resolved.” Blackwell v Franchi, 318 Mich App 573,
579 (2017). Thereafter, defendants sought leave to appeal in this Court
and we directed the scheduling of oral argument on whether to grant the
application, instructing the parties to address “whether the appellants
owed a duty to warn the appellee of the condition on the land at
issue . . . .” Blackwell v Franchi, 501 Mich 903 (2017). Ultimately,
however, a majority of the Court declined to resolve this issue, deciding
instead to remand to the Court of Appeals for consideration of the same
issue, specifically, “whether defendants owed plaintiff a duty to warn
 ORDERS IN CASES 1005
about the step because the plaintiff did not know or have reason to know
of the condition and the risk involved, and it involved an unreasonable
risk of harm . . . .” Blackwell v Franchi, 502 Mich 918, 920 (2018)
(quotation marks and citations omitted). On remand, and again in a
split decision, the same panel reversed and remanded to the trial court
for further proceedings. Blackwell v Franchi (On Remand), 327 Mich
App 354 (2019). The court majority asserted that
a reasonable person could conclude that the specific standard of
care in this case included giving a warning to plaintiff and other
licensees that upon entering the mudroom they would encounter
an eight-inch drop-off that was not visible. Put in the terms of the
remand order [from the Supreme Court], reasonable persons
could disagree on whether the alleged condition, i.e., the nonvis-
ible change in floor level, presented an unreasonable risk of
harm . . . . [Id. at 360-361.]
For the following reasons, I believe the Court of Appeals clearly erred in
imposing a legal duty upon defendants.
First, the Court of Appeals, in a conclusory fashion, determined that
a duty existed on defendant’s part, but it failed entirely to analyze the
basis for this duty, as this Court directed it to do. Subsequently, the
court assessed the standard of care that accompanied this asserted duty.
Yet, duty and standard of care are considerably distinct concepts.
Moning v Alfono, 400 Mich 425, 436-437 (1977) (“While we all agree that
the duty question is solely for the court to decide, the specific standard
of care is not part of that question.”). The issue of legal duty “compre-
hends whether the defendant is under any obligation [in the first place]
to the plaintiff to avoid negligent conduct; it does not include—where
there is [such] an obligation—the nature of the obligation: the general
standard of care and the specific standard of care.” Id. at 437 (emphasis
altered). Thus, while Chief Justice MCCORMACK is correct that our
“negligence doctrine . . . commonly uses the term ‘duty’ to refer to the
general standard of care,” ante at 1002, that is only true to the extent
that the overall nature of the duty, if one indeed exists, is defined by the
general standard of care. That is, a court must first determine whether
a duty exists, and only if the court finds that it does must it then
determine the overall nature of that duty, i.e., the general standard of
care. And Moning is not the only case to recognize the unremarkable
proposition that “duty” and “general standard of care” are distinct legal
questions. See, e.g., Williams v Cunningham Drug Stores, Inc, 429 Mich
495, 500 (1988) (“[T]he court decides the questions of duty and the
general standard of care, and the jury determines what constitutes
reasonable care under the circumstances.”) (emphasis added); Ray v
Swager, 501 Mich 52, 63 n 13 (2017), quoting Moning, 400 Mich at 437
(“ ‘The elements of an action for negligence are (i) duty, (ii) general
standard of care, (iii) specific standard of care, (iv) cause in fact, (v) legal
or proximate cause, and (vi) damage.’ ”); Case v Consumers Power Co,
463 Mich 1, 6-7 (2000). Here, in determining that the “specific standard
of care . . . included giving a warning to plaintiff,” Blackwell (On
Remand), 327 Mich App at 360-361, the Court of Appeals focused upon
1006 505 MICHIGAN REPORTS
“the nature of [defendant’s] obligation,” Moning, 400 Mich at 437, which
is a function of the standard of care. At the same time, it neglected to
focus upon the threshold inquiry—whether defendants were “under any
obligation [in the first place] to the plaintiff to avoid negligent conduct,”
id., which is a function of defendant’s legal duty.
Second, for reasons more fully explained in my dissent when this
case was earlier considered by the Court, see Blackwell, 502 Mich at 924
(MARKMAN, C.J., dissenting), the Court of Appeals here misapplied our
common law by imposing a legal duty upon defendants. “[L]andowners
are not insurers; that is, they are not charged with guaranteeing the
safety of every person who comes onto their land.” Hoffner v Lanctoe,
492 Mich 450, 459 (2012). And in Preston v Sleziak, 383 Mich 442, 453
(1970), overruled in part on other grounds by Stitt v Holland Abundant
Life Fellowship, 462 Mich 591 (2000), this Court adopted § 342 of the
Second Restatement of Torts, which sets forth in particular the legal
obligations of a social host (a “licensor”) to a social guest (a “licensee”):
A possessor of land [licensor] is subject to liability for physical
harm caused to licensees by a condition on the land if, but only if,
(a) the possessor knows or has reason to know of the condition
and should realize that it involves an unreasonable risk of harm
to such licensees, and should expect that they will not discover or
realize the danger, and
(b) he fails to exercise reasonable care to make the condition
safe, or to warn the licensees of the condition and the risk involved,
and
(c) the licensees do not know or have reason to know of the
condition and the risk involved.

* * *

The possessor is entitled to expect that the licensee . . . will be

on the alert to discover conditions which involve risk to him.
Indeed, it is not necessary that the condition be such as the
licensee would discover by the use of his senses while upon the
land. [2 Restatement Torts, 2d, § 342, pp 210, 212 comment f.]
Accordingly, the host is entitled to expect that their guests will be aware
of their surroundings and be able to recognize the existence of possible
conditions that are not themselves immediately visible. Specifically
relevant to this case, “[d]ifferent floor levels in private and public
buildings, connected by steps, are so common that the possibility of their
presence is anticipated by prudent persons.” Garrett v W S Butterfield
Theatres, Inc, 261 Mich 262, 263 (1933). See also Bertrand v Alan Ford,
Inc, 449 Mich 606, 614 (1995) (“[S]teps and differing floor levels [are] not
ordinarily actionable unless unique circumstances surrounding the area
in issue made the situation unreasonably dangerous.”).
Here, by allowing plaintiff to proceed to trial on the apparent
assumption that she could not have anticipated and would not have
been alerted to the possibility of a differing floor level in entering a
 ORDERS IN CASES 1007
darkened room from the adjoining hallway, the Court of Appeals turns
our common law on its head. Both common sense, and the common law,
provide that the commonplace circumstances that obtained here do not
give rise to liability on the part of a social host for injuries suffered by a
guest where the guest has failed both to anticipate such circumstances
and, as in the instant case, to ascertain the “lay of the land” by turning
on the lights. See also Brusseau v Selmo, 286 Mich 171, 174 (1938) (“In
the case at bar, plaintiff had notice of the darkened hallway. He could
have had more light either by turning on the ‘switch’ or leaving the
entrance door wide open, or by both. His failure to make use of
appliances that would have lighted the stairway precludes his recov-
ery.”).
Third, bearing in mind that “the common law is but the accumulated
expressions of the various judicial tribunals in their efforts to ascertain
what is right and just between individuals in respect to private
disputes,” Price v High Pointe Oil Co, Inc, 493 Mich 238, 242 (2013)
(quotation marks and citations omitted), the Court of Appeals’ decision
is troubling in how it views the relationship between hosts and guests,
veering away from legal rules that have long, and correctly, reflected, I
believe, the “actual social customs and practices” of the people, Wood-
man v Kera LLC, 486 Mich 228, 277 (2010) (opinion by MARKMAN, J.). If
this Court disfavors these rules, they should be changed straightfor-
wardly so that the people need not guess what new rules are to prevail.
By not doing so, the certain effect of decisions such as today’s will be to
incentivize litigation as our law becomes increasingly confused and
unsettled. In accordance with the Court of Appeals opinion, hosts can no
longer operate upon the assumption that guests will not walk blindly
into a darkened room without having exercised even a modicum of
caution. Must guests now be personally escorted throughout the home?
Must warning signs be installed apprising guests that they are encour-
aged to avail themselves of the benefits of electric lighting? And, of
course, darkened rooms and unexpected steps and flooring levels are
hardly the end to new lawsuits lying in wait. On what principled
grounds should a host expect a guest to act with greater judgment in a
wide realm of similarly looming household mishaps—sink and shower
faucets configured to dispense hot water; ovens and stoves that heat up;
throw rugs that are unstable; chairs capable of tipping over? In place of
a clear, settled, and workable common-law rule—one premised upon the
principle that social guests must exercise personal responsibility in
navigating commonplace residential “risks” and “hazards”—what is the
new rule that will supplant this?
It is true that “ ‘[t]he common-law does not consist of definite rules
which are absolute, fixed, and immutable like the statute law, but . . . is
a flexible body of principles . . . .’ ” Price, 493 Mich at 243, quoting Beech
Grove Investment Co v Civil Rights Comm, 380 Mich 405, 429 (1968).
Nonetheless, the common law is composed of a set of longstanding and
settled rules that must be consistently and faithfully applied unless the
particular rule at issue is changed. See also Price, 493 Mich at 260
(“[W]hen it comes to alteration of the common law, the traditional rule
must prevail absent compelling reasons for change. This approach
1008 505 MICHIGAN REPORTS
ensures continuity and stability in the law.”). Perhaps the greatest
virtue of our common law is that it governs in a consistent and
predictable manner countless numbers of ordinary social interactions
that arise each day, sparing from the burdens of trial and the risks of
financial liability citizens who have acted in a a reasonable and
responsible and customary manner. Accordingly, I would reverse the
Court of Appeals judgment and reinstate the trial court’s grant of
summary disposition in favor of defendants.
ZAHRA, J., joins the statement of MARKMAN, J.
PEOPLE V GOSNICK, No. 161056; Court of Appeals No. 350636.

Order Granting Oral Argument in Case Pending on Application for

Leave to Appeal Entered March 23, 2020:

PEOPLE V OWEN, No. 160150; Court of Appeals No. 339668. The

appellant shall file a supplemental brief within 42 days of the date of
this order addressing whether the arresting deputy made an objectively
reasonable mistake of law regarding the applicable speed limit that
justified the traffic stop of the defendant’s vehicle. See Heien v North
Carolina, 574 US 54 (2014). In addition to the brief, the appellant shall
electronically file an appendix conforming to MCR 7.312(D)(2). In the
brief, citations to the record must provide the appendix page numbers as
required by MCR 7.312(B)(1). The appellee shall file a supplemental
brief within 21 days of being served with the appellant’s brief. The
appellee shall also electronically file an appendix, or in the alternative,
stipulate to the use of the appendix filed by the appellant. A reply, if any,
must be filed by the appellant within 14 days of being served with the
appellee’s brief. The parties should not submit mere restatements of
their application papers.
The Criminal Defense Attorneys of Michigan and the Prosecuting
Attorneys Association of Michigan are invited to file briefs amicus
curiae. Other persons or groups interested in the determination of the
issue presented in this case may move the Court for permission to file
briefs amicus curiae.

Leave to Appeal Denied March 23, 2020:

HAHN V GEICO INDEMNITY COMPANY, No. 158141; Court of Appeals No.

336583. On January 8, 2020, the Court heard oral argument on the
application for leave to appeal the June 12, 2018 judgment of the Court
of Appeals. On order of the Court, the application is again considered,
and it is denied, because we are not persuaded that the questions
presented should be reviewed by this Court.
MARKMAN, J. (concurring in part and dissenting in part). In an order
directing the Clerk to schedule oral argument on Geico Indemnity
Company’s application for leave to appeal, this Court asked for supple-
mental briefing on “(1) [whether] MCL 500.3012 permits the reforma-
tion of a non-Michigan insurance contract to comply with the require-
 ORDERS IN CASES 1009
ments of the Michigan no-fault act, MCL 500.3101 et seq[.]; and
(2) [whether] Farm Bureau Ins Co v Allstate Ins Co, 233 Mich App 38
(1998), was correctly decided, and if not, whether it should be over-
ruled.” I concur with the Court’s denial of leave to appeal on these two
questions. While Geico argues in its application for leave in this Court
that MCL 500.3012 does not require reformation and that Farm Bureau
was incorrectly decided, Geico did not raise these arguments in the trial
court or in its application for leave to appeal in the Court of Appeals.
Under our jurisprudence, a litigant must generally preserve an issue for
appellate review by raising it in the trial court. Walters v Nadell, 481
Mich 377, 387 (2008). In discussing this requirement, this Court has
stated:
The principal rationale for the rule is based in the nature of
the adversarial process and judicial efficiency. By limiting appel-
late review to those issues raised and argued in the trial court,
and holding all other issues waived, appellate courts require
litigants to raise and frame their arguments at a time when their
opponents may respond to them factually. This practice also
avoids the untenable result of permitting an unsuccessful litigant
to prevail by avoiding its tactical decisions that proved unsuc-
cessful. [Id. at 388 (citations omitted).]

Here, the rationale underlying preservation strongly favors not

reaching the two questions presented in this Court’s order because: (1)
the parties, up through Hahn’s supplemental briefing response, were
still crafting their arguments regarding whether MCL 500.3012 permits
reformation; and (2) Geico affirmatively relied upon Farm Bureau in the
trial court. Finally, where Geico seeks leave to appeal from an interlocu-
tory order denying summary disposition before the close of discovery,
Geico cannot establish that a “miscarriage of justice,” “fundamental
error,” or “egregious result” will follow from this Court’s enforcing the
preservation requirement. Napier v Jacobs, 429 Mich 222, 233, 235
(2008).
However, I would grant leave to appeal on the narrower and
preserved question of whether the insurance policy issued by Geico
purported to be a Michigan insurance policy. Farm Bureau concluded
that “the basic purpose of [MCL 500.3012] is to treat an insurance policy
that an insurer issues purporting to be a Michigan policy that complies
with Michigan law as such even if the written terms of the policy are
inconsistent with Michigan law.” 233 Mich App at 41 (emphasis altered).
Under this conclusion, if an insurance policy purports to be a Michigan
policy but neither disclaims nor provides no-fault coverage in accor-
dance with MCL 500.3101 et seq., a court should reform the policy by
reading no-fault coverage into the policy. In determining whether a
policy purports to be a Michigan policy and thus is subject to reforma-
tion, the Court of Appeals focuses upon whether the insurer knew or
should have known that the insured was a Michigan resident. See id. at
43-44 (policy did not purport to be Michigan policy where insurer had
reason to believe insured was Indiana resident); see also Auto-Owners
Ins Co v Integon Nat’l Ins Co, unpublished per curiam opinion of the
1010 505 MICHIGAN REPORTS
Court of Appeals, issued September 17, 2015 (Docket No. 321396),
pp 5-7 (declining to reform policy where evidence did not show insureds
were Michigan residents at time insurer issued the policy); Gordon v
Geico Gen Ins Co, unpublished per curiam opinion of the Court of
Appeals, issued March 20, 2012 (Docket No. 301431), p 4 (policy
purported to be Michigan policy where, given representations by in-
sured, insurer “knew, or should have known, that it was dealing with a
Michigan resident who would at least be traveling frequently to Michi-
gan”); Williams v Allstate Ins Co, unpublished per curiam opinion of the
Court of Appeals, issued May 10, 2002 (Docket No. 229005), pp 2-3
(declining to reform policy where there was “no evidence from which to
conclude that [the insurer] reasonably should have known that [the
insureds] were Michigan residents”).
An insurer’s knowledge of the insured’s residency may well be a
useful consideration in determining whether a policy purports to be a
Michigan policy. However, I do not believe the insured’s residency
constitutes a necessary or a sufficient condition in determining whether
a policy purports to be a Michigan policy. As is evident from the facts of
the instant case, some Michigan residents are required to obtain
non-Michigan policies. See NC Gen Stat 20-309 (requiring North Caro-
lina insurance if vehicle is registered in North Carolina). At the same
time, some non-Michigan residents are required to obtain policies
providing Michigan no-fault coverage. See MCL 500.3102(1) (requiring
nonresident who operates a vehicle in Michigan for more than 30 days
a year to procure Michigan no-fault insurance). And the parties have not
identified any law of this state that requires an insurer to offer a person
seeking insurance the complete range of in-state and out-of-state
policies that he or she must obtain under the laws of Michigan and all
other states. Cf. Johnson v USA Underwriters, 328 Mich App 223,
244-245 (2019) (allowing insurer to sell optional or supplemental
insurance coverage apart from required Michigan no-fault coverage).
Thus, in my opinion, when the trial court embarks upon determining
whether a policy “purports” to be a Michigan policy, it must, in addition
to assessing the insured’s residency, further consider: (1) the represen-
tations and interactions between the insured and the insurer when
forming the policy, (2) the language of the policy, and (3) any other
circumstance that reasonably bears upon the intentions of the insured
and the insurer in purchasing and delivering the policy. Such an
analysis would provide a more complete and accurate framework than
does Farm Bureau and its progeny for determining whether the parties
intended to form a Michigan insurance policy subject to reformation
under MCL 500.3012.
Thus, while I concur with the denial of leave on the two questions
identified in this Court’s order directing the Clerk to schedule oral
argument on Geico’s application for leave to appeal, I respectfully
dissent from our denial of leave on the more narrow and preserved
question of whether the policy issued by Geico “purports” to be a
Michigan policy. Furnishing a coherent framework for determining
whether a policy purports to be a Michigan policy would have provided
lower courts with some much needed statutory clarification and guid-
 ORDERS IN CASES 1011
ance. It is regrettable that we pass up the opportunity to do so after
having taken the time to hear oral argument on Geico’s application for
leave to appeal.
BERNSTEIN, J., did not participate because he has a family member
with an interest that could be affected by the proceeding.
CAVANAGH, J., did not participate due to her prior relationship with
Garan Lucow Miller, P.C.
BAUER V HAMMON, No. 159342; Court of Appeals No. 339703.
PEOPLE V STANLEY, Nos. 160109 and 160110; Court of Appeals Nos.
340464 and 340465.
MARKMAN, J., would grant leave to appeal as to the prosecutor’s
cross-appeal in Docket No. 160110 to assess whether sufficient evidence
has been presented to sustain defendant’s conviction for conspiracy to
commit armed robbery.
STOWELL V GROVER, No. 160196; Court of Appeals No. 348157.
PEOPLE V TIETZ, No. 160261; Court of Appeals No. 342613.

Summary Disposition March 25, 2020:

ROBERTSON V JOHNSON, No. 159531; Court of Appeals No. 337961.

Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
vacate the judgment of the Court of Appeals. Whether the plaintiff has
stated a viable claim against defendant U-Haul Co. of Michigan (U-
Haul), and if so the basis for that claim, cannot be reviewed on appeal
where the complaint itself fails to make any allegations or state any
claim against U-Haul. Under these circumstances, U-Haul was entitled
to summary disposition. See MCR 2.116(C)(8), (I)(1). We therefore
reverse the April 10, 2017 judgment of the Wayne Circuit Court and
remand this case to that court for entry of an order granting summary
disposition to U-Haul, without prejudice to the plaintiff’s opportunity to
amend the complaint pursuant to MCR 2.116(I)(5). We do not retain
jurisdiction.
PEOPLE V REESE, No. 159791; Court of Appeals No. 348186. Pursuant
to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this
case to the Allegan Circuit Court for correction of the judgment of
sentence. The prosecuting attorney has conceded that the defendant’s
200-month minimum sentence violates the two-thirds rule of People v
Tanner, 387 Mich 683, 690 (1972), and MCL 769.34(2)(b). Under that
rule, because the statutory maximum for third-degree criminal sexual
conduct, see MCL 750.520d(2), as elevated by the habitual offender
statute, MCL 769.10(1)(a), is 270 months, the longest minimum sen-
tence that the defendant could receive is 180 months, or 15 years. The
judgment of sentence is to be amended accordingly. We further order the
trial court to ensure that the corrected judgment of sentence is trans-
mitted to the Department of Corrections. In all other respects, leave to
1012 505 MICHIGAN REPORTS
appeal is denied, because we are not persuaded that the question
presented should be reviewed by this Court. We do not retain jurisdic-
tion.
PEOPLE V BLAIR, No. 160678; Court of Appeals No. 347885. Pursuant to
MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the
Court of Appeals judgment and the February 13, 2019 order of the
Berrien Circuit Court denying the defendant’s motion to suppress
evidence. We remand this case to the trial court to reconsider the
defendant’s motion with the record as expanded by the Court of Appeals
to include the video evidence, and for the trial court to specifically
address: (1) whether the Berrien County Deputy Sheriff who impounded
the vehicle complied with the Sheriff’s Department Policies and Proce-
dures governing towing and impounding, including Section V of those
policies, (2) whether the Deputy “acted in bad faith or for the sole
purpose of investigation,” Colorado v Bertine, 479 US 367 (1987), and
(3) if so, whether that renders the search unconstitutional under either
the state or federal constitutions. We do not retain jurisdiction.

Order Granting Oral Argument in Case Pending on Application for

Leave to Appeal Entered March 25, 2020:

RIVERA V SVRC INDUSTRIES, INC, No. 159857; Court of Appeals No.

341516. The appellant shall file a supplemental brief within 42 days of
the date of this order addressing: (1) whether the record supports
plaintiff’s contention that her communication with defendant’s chief
operating officer demonstrated that she was “about to report” a
violation or a suspected violation of a law, see MCL 15.362; (2) whether
plaintiff’s communications with defendant’s counsel constituted a
“report” pursuant to MCL 15.362 where (a) defendant’s counsel initi-
ated contact with plaintiff (rather than plaintiff contacting him), and
(b) defendant’s counsel was aware of plaintiff’s allegations prior to
their conversation; (3) whether the Whistleblowers’ Protection Act
(MCL 15.361 et seq.) is plaintiff’s exclusive remedy in this case; and (4)
whether the record supports plaintiff’s contention that her protected
activity caused her firing, that is, whether plaintiff has sufficient
evidence beyond the temporal proximity of the events to show causa-
tion, see Wurtz v Beecher Metro Dist, 495 Mich 242 (2014). In addition
to the brief, the appellant shall electronically file an appendix conform-
ing to MCR 7.312(D)(2). In the brief, citations to the record must
provide the appendix page numbers as required by MCR 7.312(B)(1).
The appellee shall file a supplemental brief within 21 days of being
served with the appellant’s briefs. The appellee shall also electroni-
cally file an appendix, or in the alternative, stipulate to the use of the
appendix filed by the appellant. A reply, if any, must be filed by the
appellant within 14 days of being served with the appellee’s brief. The
parties should not submit mere restatements of their application
papers.
 ORDERS IN CASES 1013
Leave to Appeal Denied March 25, 2020:

PEOPLE V TERRY WILLIAMS, No. 160928; Court of Appeals No. 350091.

Summary Disposition March 27, 2020:

PEOPLE V CANTU, No. 157714; Court of Appeals No. 335696. By order

of May 28, 2019, the application for leave to appeal the March 13, 2018
judgment of the Court of Appeals was held in abeyance pending the
decision in People v Turner (Docket No. 158068). On order of the Court,
the case having been decided on January 17, 2020, 505 Mich 954 (2020),
the application is again considered and, pursuant to MCR 7.305(H)(1),
in lieu of granting leave to appeal, we reverse the judgment of the Court
of Appeals and we remand this case to the Kent Circuit Court for further
proceedings not inconsistent with this order. At the resentencing for
first-degree murder held pursuant to MCL 769.25a and Miller v Ala-
bama, 567 US 460 (2012), the trial court had jurisdiction to consider the
defendant’s arguments regarding his sentences for kidnapping and
assault with intent to murder. Turner, supra. On remand, the trial court
shall consider the defendant’s arguments regarding the validity of these
sentences and exercise its discretion whether to resentence him for
those convictions, in particular “if it finds that the sentence was based
on a legal misconception that the defendant was required to serve a
mandatory sentence of life without parole on the greater offense.” Id. We
do not retain jurisdiction.
PEOPLE V RONALD WILLIAMS, No. 158853; reported below: 326 Mich App
514. By order of April 5, 2019, the application for leave to appeal the
November 29, 2018 judgment of the Court of Appeals was held in
abeyance pending the decision in People v Turner (Docket No. 158068).
On order of the Court, that case having been decided on January 17,
2020, 505 Mich 954 (2020), the application is again considered and,
pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
reverse the judgment of the Court of Appeals holding that the defendant
was not entitled to resentencing, and we remand this case to the Wayne
Circuit Court for further proceedings not inconsistent with this order.
The defendant was not required to file a motion for relief from judgment
to challenge his sentence for second-degree murder that was imposed
concurrently to his sentence for first-degree murder committed when he
was less than 18 years old. People v Turner, supra. The trial court had
jurisdiction to consider his arguments concerning his second-degree
murder sentence at the resentencing for first-degree murder held
pursuant to MCL 769.25a and Miller v Alabama, 567 US 460 (2012). On
remand, the trial court shall consider whether the sentence for second-
degree murder was based on a legal misconception that the defendant
was required to serve a mandatory sentence of life without parole for
first-degree murder. If so, the trial court may exercise its discretion to
resentence the defendant for second-degree murder. In all other re-
1014 505 MICHIGAN REPORTS
spects, leave to appeal is denied, because we are not persuaded that the
remaining questions presented should be reviewed by this Court. We do
not retain jurisdiction.
PEOPLE V O’NEAL, No. 159785; Court of Appeals No. 346673. Pursuant
to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the
August 16, 2018 order of the Wayne Circuit Court dismissing the
defendant’s motion for relief from judgment, and we remand this case to
the trial court for reconsideration of that motion. The trial court
dismissed the defendant’s motion as successive under MCR 6.502(G).
However, the motion is not prohibited by MCR 6.502(G) because the
defendant’s prior motion for relief from judgment was filed before
August 1, 1995. Further, in determining whether the alleged grounds
for relief were previously decided against the defendant, the trial court
shall note that the defendant raises ineffective assistance of counsel
claims in his current motion that were not raised previously. The motion
to remand for an evidentiary hearing is denied. We do not retain
jurisdiction.
PEOPLE V JASON KEISTER, No. 159912; Court of Appeals No. 340931.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
vacate that part of the Court of Appeals judgment holding that the
admission of the expert testimony of Dr. Angela May was not plain error.
Her testimony was plainly contrary to People v Smith, 425 Mich 98
(1986), People v Peterson, 450 Mich 349 (1995), and People v Thorpe, 504
Mich 230 (2019). We remand this case to the Court of Appeals for
consideration of whether the prejudice prong of the plain-error test was
satisfied, and, if so, whether reversal of the defendant’s convictions is
warranted. See People v Carines, 460 Mich 750, 763-764 (1999). In all
other respects, leave to appeal is denied, because we are not persuaded
that the remaining questions presented should be reviewed by this
Court. We do not retain jurisdiction.
PEOPLE V MCNEAL, No. 160203; Court of Appeals No. 348752. Pursu-
ant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we reverse
the order of the Court of Appeals, and we remand this case to the Wayne
Circuit Court for further proceedings not inconsistent with this order.
The defendant was not required to file a motion for relief from judgment
to challenge his sentence for second-degree murder, imposed concur-
rently to his sentence for a first-degree murder committed when he was
under the age of 18. See People v Turner, 505 Mich 954 (2020). The trial
court had jurisdiction to consider his arguments regarding his second-
degree murder sentence at the resentencing for first-degree murder held
pursuant to MCL 769.25a and Miller v Alabama, 567 US 460 (2012). On
remand, the trial court shall consider the defendant’s arguments re-
garding the validity of his second-degree murder sentence and exercise
its discretion whether to resentence him for that conviction, in particu-
lar “if it finds that the sentence was based on a legal misconception that
the defendant was required to serve a mandatory sentence of life
without parole on the greater offense.” Turner, supra. We do not retain
jurisdiction.
 ORDERS IN CASES 1015
BARAGWANATH V AMC SAULT STE MARIE, INC, No. 160360; Court of
Appeals No. 348628. Pursuant to MCR 7.305(H)(1), in lieu of granting
leave to appeal, we remand this case to the Court of Appeals for
consideration as on leave granted.

Leave to Appeal Denied March 27, 2020:

HINDENACH V OLIVET COLLEGE, No. 159509; Court of Appeals No.

340540.
MUHAMMAD V GRESLEY, Nos. 159566 and 159567; Court of Appeals Nos.
341745 and 343236.
PEOPLE V KEATING, No. 159575; Court of Appeals No. 340693.
PEOPLE V HILTON, No. 159576; Court of Appeals No. 348109.
PEOPLE V CORDELL JONES, No. 159774; Court of Appeals No. 348764.
PEOPLE V DICKEY, No. 159808; Court of Appeals No. 348113.
PEOPLE V COOPER, No. 159822; Court of Appeals No. 335212.
HELLER V DEJONG, No. 159862; Court of Appeals No. 345164.
WILSON V BRK, INC, No. 159904; reported below: 328 Mich App 505.
WILSON V GABITES, No. 159938; Court of Appeals No. 342477.
PEOPLE V LEONARD KING, No. 159950; Court of Appeals No. 346794.
PEOPLE V ARMSTRONG, No. 159960; Court of Appeals No. 347837.
SUNNYSIDE RESORT CONDOMINIUM ASSOCIATION, INC V BECKMAN, No.
159965; Court of Appeals No. 341116.
PEOPLE V WHITMORE, No. 159988; Court of Appeals No. 340114.
FARM BUREAU INSURANCE COMPANY V TNT EQUIPMENT, INC, No. 160009;
reported below: 328 Mich App 667.
In re MARGARET E WHITE TRUST, No.160036; Court of Appeals No.
344361.
PEOPLE V RUSSELL-TAYLOR, No. 160053; Court of Appeals No. 340029.
CESARINI V FCA US LLC, No. 160054; Court of Appeals No. 342674.
PEOPLE V BRIAN BRADFORD, No. 160068; Court of Appeals No. 348824.
PEOPLE V SHAW, No. 160122; Court of Appeals No. 349278.
PEOPLE V KIM HARVEY, No. 160128; Court of Appeals No. 338991.
PEOPLE V WENDELL EDWARDS, No. 160168; Court of Appeals No. 348744.
PEOPLE V REGINALD WALKER, No. 160179; Court of Appeals No. 348737.
1016 505 MICHIGAN REPORTS
PEOPLE V DEMETRIUS MOORE, No. 160180; Court of Appeals No. 349172.
TAYLOR V UNIVERSITY PHYSICIAN GROUP, No. 160183; reported below: 329
Mich App 268.
PEOPLE V LAROSE, No. 160234; Court of Appeals No. 347626.
TALAN V STEWART, No. 160243; Court of Appeals No. 342268.
BERNSTEIN, J., did not participate because he has a family member
with an interest that could be affected by the proceeding.
COPPOLA V EDWARD ROSE & SONS, LLC, No. 160266; Court of Appeals
No. 343172.
CAVANAGH, J., did not participate due to her prior relationship with
Garan Lucow Miller, P.C.
SPINE SPECIALISTS OF MICHIGAN, PC V GEICO INDEMNITY COMPANY, No.
160306; Court of Appeals No. 343683.
PEOPLE V CAIN, No. 160337; Court of Appeals No. 348562.
PEOPLE V DEBRUYN, No. 160341; Court of Appeals No. 348334.
PEOPLE V KNOX, Nos. 160368 and 160369; Court of Appeals Nos.
342165 and 342179.
PEOPLE V VITONN BALDWIN, No. 160372; Court of Appeals No. 343203.
PEOPLE V TAAMNEH, Nos. 160379 and 160380; Court of Appeals Nos.
342452 and 342453.
PEOPLE V MARK WASHINGTON, No. 160385; Court of Appeals No. 344003.
PEOPLE V LEONARDROW SMITH, No. 160391; Court of Appeals No.
348845.
PEOPLE V DEANGELO JONES, No. 160412; Court of Appeals No. 350851.
PEOPLE V SEDLMEYER, No. 160413; Court of Appeals No. 349908.
TOWN CENTERS DEVELOPMENT CO, INC V PND INVESTMENTS, LLC, No.
160420; Court of Appeals No. 343247.
VIVIANO, J., did not participate due to a familial relationship with the
presiding circuit court judge in this case.
PEOPLE V EARL DAVIS, No. 160422; Court of Appeals No. 349611.
PEOPLE V MEAD, No. 160424; Court of Appeals No. 341688.
PEOPLE V WALTON, No. 160428; Court of Appeals No. 343148.
PEOPLE V GREGORY TUCKER, No. 160429; Court of Appeals No. 343351.
HAWKINS V NORFOLK SOUTHERN RAILWAY COMPANY, No. 160442; Court of
Appeals No. 340338.
 ORDERS IN CASES 1017
SLAGA V TOTAL HEALTH CARE, INC, No. 160446; Court of Appeals No.
340968.
MOORE V MOORE, No. 160454; Court of Appeals No. 343266.
PEOPLE V PRAHL-SIX, No. 160455; Court of Appeals No. 350411.
STEVENSON V AUTO CLUB INSURANCE ASSOCIATION, No. 160458; Court of
Appeals No. 342805.
CAVANAGH, J., did not participate due to her prior relationship with
Garan Lucow Miller, P.C.
PEOPLE V AARON MILLER, No. 160472; Court of Appeals No. 340175.
HARPER V ASHGROVE APARTMENTS, No. 160482; Court of Appeals No.
345299.
PEOPLE V PROCHE, No. 160488; Court of Appeals No. 349330.
PEOPLE V COWLES, No. 160490; Court of Appeals No. 336178.
HARPER V ASHGROVE APARTMENTS, No. 160491; Court of Appeals No.
345299.
PEOPLE V MARTELL MOORE, No. 160497; Court of Appeals No. 344801.
WILMINGTON SAVINGS FUND SOCIETY FSB V SCOTT, No. 160504; Court of
Appeals No. 344903.
PEOPLE V CORKER, Nos. 160505 and 160506; Court of Appeals Nos.
350425 and 350427.
PEOPLE V COREY MANNING, No. 160508; Court of Appeals No. 348967.
PEOPLE V RONALD WILLIAMS, No. 160509; Court of Appeals No. 350308.
PEOPLE V HENRY, No. 160511; Court of Appeals No. 349772.
PEOPLE V KENNARD, No. 160512; Court of Appeals No. 349027.
PEOPLES V CITY OF DETROIT BOARD OF ZONING APPEALS, No. 160518; Court
of Appeals No. 348711.
PEOPLE V WALDRON, No. 160521; Court of Appeals No. 350356.
PEOPLE V KILLING, No. 160526; Court of Appeals No. 350076.
PEOPLE V NOEL, No. 160536; Court of Appeals No. 350005.
PEOPLE V WOGOMAN, No. 160540; Court of Appeals No. 349316.
PEOPLE V BRADLEY BEARD, No. 160542; Court of Appeals No. 349469.
PEOPLE V COLUMBUS MILLER, Nos. 160548 and 160549; Court of Appeals
Nos. 350139 and 350140.
PEOPLE V BETTS, No. 160556; Court of Appeals No. 350593.
PEOPLE V EDMUNDSON, No. 160560; Court of Appeals No. 350218.
1018 505 MICHIGAN REPORTS
TIA CORPORATION V PEACEWAYS, No. 160566; Court of Appeals No.
348696.
PEOPLE V FLAKIEWICZ, No. 160570; Court of Appeals No. 342463.
LAMKIN V HARTMEIER, No. 160576; Court of Appeals No. 326986.
CAVANAGH, J., did not participate due to her prior relationship with
Garan Lucow Miller, P.C.
In re ENGEL, No.160577; COURT OF APPEALS No. 345169.
PEOPLE V CRAIG HILL, No. 160579; Court of Appeals No. 349875.
PEOPLE V JAMES TAYLOR, No. 160581; Court of Appeals No. 350145.
DAWN REO, LLC V MURPHY, No. 160595; Court of Appeals No. 342701.
PEOPLE V RUZA, No. 160609; Court of Appeals No. 349858.
PEOPLE V BRADLEY, No. 160618; Court of Appeals No. 350868.
PEOPLE V ORT, No. 160621; Court of Appeals No. 350472.
PEOPLE V MICHAEL BOONE, No. 160625; Court of Appeals No. 350454.
PEOPLE V JOHN BROWN, No. 160631; Court of Appeals No. 345399.
PEOPLE V DARYL DAVIS, No. 160633; Court of Appeals No. 350453.
PEOPLE V MCADAMS, No. 160634; Court of Appeals No. 344506.
PEOPLE V DUNMIRE, No. 160639; Court of Appeals No. 343444.
PEOPLE V SAIN, No. 160640; Court of Appeals No. 350704.
PEOPLE V MEDINA, No. 160643; Court of Appeals No. 350547.
PEOPLE V RUTHERFORD, Nos. 160644 and 160645; Court of Appeals Nos.
343185 and 343188.
PEOPLE V BONDS-CARRERA, No. 160659; Court of Appeals No. 350970.
PEOPLE V BEAUDIN, No. 160663; Court of Appeals No. 350534.
PEOPLE V ROSS, No. 160671; Court of Appeals No. 350412.
PEOPLE V MELLEN, No. 160672; Court of Appeals No. 350721.
In re MLA FULTON, MINOR, No. 160679; Court of Appeals No. 350996.
PEOPLE V MCBRIDE, No. 160680; Court of Appeals No. 350480.
PEOPLE V RIDENOUR, No. 160683; Court of Appeals No. 342748.
PEOPLE V NODARSE, No. 160686; Court of Appeals No. 344865.
PEOPLE V WHITLOW, No. 160693; Court of Appeals No. 342778.
PEOPLE V MELISSA MANNARINO, No. 160703; Court of Appeals No.
343747.
 ORDERS IN CASES 1019
PEOPLE V MELISSA MANNARINO, No. 160705; Court of Appeals No.
343748.
PEOPLE V STANAWAY, No. 160706; Court of Appeals No. 343757.
PEOPLE V MELISSA MANNARINO, No. 160708; Court of Appeals No.
346271.
PEOPLE V LOWRY, No. 160723; Court of Appeals No. 339794.
In re GEETER, No. 160727; Court of Appeals No. 350482.
In re TERRELL, No. 160728; Court of Appeals No. 350598.
PEOPLE V JAYMES MILLER, No. 160734; Court of Appeals No. 343756.

Superintending Control Denied March 27, 2020:

PLATER V ATTORNEY GRIEVANCE COMMISSION, No. 160610.

CAVANAGH, J., did not participate due to her prior service as a member
of the Attorney Grievance Commission.
KIZER V ATTORNEY GRIEVANCE COMMISSION, No. 160731.
MARKMAN, J., did not participate because of discussions he had as
Chief Justice with the State Court Administrative Office concerning
aspects of the dispute.
CAVANAGH, J., did not participate due to her prior service as a member
of the Attorney Grievance Commission.

Application for Leave to Appeal Dismissed March 27, 2020:

PATTERSON V ST JOSEPH MERCY HOSPITAL, No. 160863; Court of Appeals

No. 350135. On order of the Chief Justice, the motion of defendants-
appellants to dismiss the application for leave to appeal is granted. The
application for leave to appeal is dismissed without prejudice to
defendants-appellants raising and pursuing the same application issues
to be presented in the pending cross-appeal in this matter.

Complaint for Superintending Control Dismissed March 27, 2020:

KIZER V JUDICIAL TENURE COMMISSION, No. 160750. On order of the

Court, the complaint for superintending control is considered, and it is
dismissed for the reason that there is no “proceeding” before the Judicial
Tenure Commission within the meaning of MCR 9.211(C). The motion to
unseal file is denied.
MARKMAN, J., did not participate because of discussions he had as
Chief Justice with the State Court Administrative Office concerning
aspects of the dispute.
1020 505 MICHIGAN REPORTS
Reconsideration Denied March 27, 2020:
PEOPLE V TROY HITE, No. 157674; Court of Appeals No. 342618. Leave
to appeal denied at 505 Mich 940.
WHEELER V CITY OF LIVONIA, No. 158910; Court of Appeals No. 338704.
Leave to appeal denied at 505 Mich 940.
PEOPLE V WALTER KELLY, No. 159605; Court of Appeals No. 340033.
Summary disposition order entered at 505 Mich 933.
PEOPLE V ERNEST GORDON, No. 159934; Court of Appeals No. 346695.
Leave to appeal denied at 505 Mich 870.
PEOPLE V JOHN WILSON, No. 160126; Court of Appeals No. 343990.
Leave to appeal denied at 505 Mich 942.
PEOPLE V CARNELL BATES, No. 160141; Court of Appeals No. 347304.
Leave to appeal denied at 505 Mich 943.
PEOPLE V GRAM BENTON, No. 160145; Court of Appeals No. 348913.
Leave to appeal denied at 505 Mich 946.
PEOPLE V DARNELL BATES, No. 160155; Court of Appeals No. 347279.
Leave to appeal denied at 505 Mich 943.
In re TIPPINS, No. 160329; Court of Appeals No. 349398. Leave to
appeal denied at 505 Mich 948.
PEOPLE V MICHAEL DEARDOFF, No. 160510; Court of Appeals No.
348609. Leave to appeal denied at 505 Mich 884.

Summary Disposition April 3, 2020:

PEOPLE V MUNTEAN, No. 158932; Court of Appeals No. 334952. Pursu-

ant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand
this case to the Wayne Circuit Court. The defendant’s sentences for
torture, unlawful imprisonment, and aggravated domestic violence
should not have been made consecutive to the felony-firearm sentence
because none of those offenses was a predicate felony for the charged
felony-firearm offense. People v Clark, 463 Mich 459 (2000). On remand,
the trial court shall either amend the judgment of sentence to make
those sentences concurrent, or resentence the defendant. We further
order the trial court to ensure that the amended judgment of sentence is
transmitted to the Department of Corrections. In all other respects,
leave to appeal is denied, because we are not persuaded that the
remaining questions presented should be reviewed by this Court. We do
not retain jurisdiction.

Leave to Appeal Denied April 3, 2020:

In re IR HUGO, MINOR, No. 160798; Court of Appeals No. 347785.

In re VUOCOLO, MINORS, No. 160979; Court of Appeals No. 349238.
 ORDERS IN CASES 1021
Summary Disposition April 15, 2020:

PEOPLE V HAILEY, No. 157987; Court of Appeals No. 342283. Pursuant

to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this
case to the Wayne Circuit Court for an evidentiary hearing pursuant to
People v Ginther, 390 Mich 436 (1973), and reconsideration of the
defendant’s motion for relief from judgment. We further order the trial
court, in accordance with Administrative Order 2003-03, to determine
whether the defendant is indigent and, if so, to appoint counsel to
represent the defendant at the evidentiary hearing. The motion to
extend time for filing a reply is granted. The motions to remand and for
miscellaneous relief are denied in all other respects. We do not retain
jurisdiction.
PEOPLE V TAUREAN CARTER, No. 160228; Court of Appeals No. 349181.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
remand this case to the Court of Appeals for consideration as on leave
granted.

Order Granting Oral Argument in Case Pending on Application for

Leave to Appeal Entered April 15, 2020:

PEOPLE V SINDONE, No. 159709; Court of Appeals No. 340328. The

appellant shall file a supplemental brief within 42 days of the date of this
order addressing whether the defendant’s convictions under MCL 750.73
and MCL 750.79(1)(d)(vi) violate double jeopardy. Specifically, the appel-
lant shall address: (1) whether the Legislature expressed a clear intent to
allow or disallow dual convictions for both crimes based on the same
conduct, and (2) if not, whether the same-elements test requires vacating
the lesser conviction. See People v Miller, 498 Mich 13, 19 (2015). In
addition to the brief, the appellant shall electronically file an appendix
conforming to MCR 7.312(D)(2). In the brief, citations to the record must
provide the appendix page numbers as required by MCR 7.312(B)(1). The
appellee shall file a supplemental brief within 21 days of being served
with the appellant’s brief. The appellee shall also electronically file an
appendix, or in the alternative, stipulate to the use of the appendix filed
by the appellant. A reply, if any, must be filed by the appellant within 14
days of being served with the appellee’s brief. The parties should not
submit mere restatements of their application papers.
The Prosecuting Attorneys Association of Michigan and the Criminal
Defense Attorneys of Michigan are invited to file briefs amicus curiae.
Other persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae.

Leave to Appeal Denied April 15, 2020:

PEOPLE V BERNARD, No. 159022; Court of Appeals No. 344682.

PEOPLE V MARCUS MARTIN, No. 159443; Court of Appeals No. 347375.
1022 505 MICHIGAN REPORTS
In re ESTATE OF LOUIS G BASSO, JR, No. 159896; Court of Appeals No.
342370.
PEOPLE V CORRIDORE, No. 160130; Court of Appeals No. 338670.
PEOPLE V HARGROVE, No. 160270; Court of Appeals No. 344352.
BROWN V WOLAN, No. 160340; Court of Appeals No. 340533.
SWITALSKI V CLEVENGER, No. 160414; Court of Appeals No. 348793.
PEOPLE V ALEXANDER, No. 160484; Court of Appeals No. 350196.

Summary Disposition April 17, 2020:

PEOPLE V VICK, No. 159259; Court of Appeals No. 344396. Pursuant to

MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate that part
of the Kent Circuit Court’s June 4, 2018 order denying relief from
judgment on the basis of the affidavit of Kenneth Jackson, and we
remand this case to the trial court for reconsideration of the defendant’s
motion under MCR 6.504(B). On remand, the trial court shall determine
whether the new evidence presented in that affidavit is credible and
whether the impact of the new evidence, in conjunction with the
evidence that would be presented on retrial, which would include newly
discovered evidence presented in previous motions for relief from
judgment, would make a different result probable on retrial. People v
Johnson, 502 Mich 541, 566-567, 571 (2018). In all other respects, leave
to appeal is denied, because the defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). The motion to appoint counsel
is denied.
CRAMER V TRANSITIONAL HEALTH SERVICES OF WAYNE, No. 160312; Court
of Appeals No. 347806. Pursuant to MCR 7.305(H)(1), in lieu of granting
leave to appeal, we remand this case to the Court of Appeals for
consideration, as on leave granted, of whether: (1) the Michigan Com-
pensation Appellate Commission correctly concluded that the magis-
trate properly applied the four-factor test in Martin v Pontiac Sch Dist,
2001 Mich ACO 118, lv den 466 Mich 873 (2002), and the standard in
Yost v Detroit Board of Education, 2000 Mich ACO 347, lv den 465 Mich
907 (2001); (2) the Martin test is at odds with the principle that a
preexisting condition is not a bar to eligibility for workers’ compensation
benefits and conflicts with the plain meaning of MCL 418.301(2); and
(3) the Michigan Compensation Appellate Commission correctly con-
cluded that the magistrate’s lack of causation conclusion was supported
by the requisite competent, substantial, and material evidence utilizing
the proper standard of law. In all other respects, leave to appeal is
denied, because we are not persuaded that the remaining question
presented should be reviewed by this Court.
PEOPLE V KEVIN WHITE, No. 160676; Court of Appeals No. 346661.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
reverse the judgment of the Court of Appeals and we remand this case
 ORDERS IN CASES 1023
to the Court of Appeals for consideration of the issues raised by the
prosecutor, but not addressed by that court in its initial review of this
case. Contrary to the determinations of the trial court and the Court of
Appeals, there is no record evidence that the defendant knew that the
person to whom he delivered the controlled substance had moved from
Macomb County to Livingston County and that the controlled substance
would be consumed in Livingston County. Thus, the record does not
support the Court of Appeals’ holding that the defendant intended the
felony or acts done in perpetration of felony to have an effect in
Livingston County. See MCL 762.8; People v McBurrows, 504 Mich 308
(2019). We do not retain jurisdiction.

Leave to Appeal Granted April 17, 2020:

BUHL V CITY OF OAK PARK, No. 160355; reported below: 329 Mich App
486. The parties shall address: (1) whether the Court of Appeals erred in
concluding that the January 2017 amendment to MCL 691.1402a(5), see
2016 PA 419, applies retroactively; (2) whether 2016 PA 419 “attaches a
new disability with respect to transactions or considerations already
past,” In re Certified Questions from US Court of Appeals for the Sixth
Circuit, 416 Mich 558, 571 (1982); (3) whether the Court of Appeals
erred in creating and applying a “Brewer restoration rule,” in determin-
ing that 2016 PA 419 applies retroactively, see Brewer v A D Transp
Express, Inc, 486 Mich 50 (2010); and (4) whether it makes a difference
that the amendment was enacted before plaintiff filed her complaint
when the amended statute states, “In a civil action, a municipal
corporation . . . may assert . . . a defense that the condition was open
and obvious.” MCL 691.1402a(5). The time allowed for oral argument
shall be 20 minutes for each side. MCR 7.314(B)(1).
CAVANAGH, J., did not participate because of her prior involvement as
counsel for a party.

Order Granting Oral Argument in Case Pending on Application for

Leave to Appeal Entered April 17, 2020:

PEOPLE V CEASOR, No. 159948; Court of Appeals No. 338431. The

appellant shall file a supplemental brief within 42 days of the date of
this order addressing whether he was denied the effective assistance of
trial counsel due to counsel’s failure to seek funds from the circuit court
to hire an expert witness or to otherwise obtain and present the
testimony of an expert witness. In addition to the brief, the appellant
shall electronically file an appendix conforming to MCR 7.312(D)(2). In
the brief, citations to the record must provide the appendix page
numbers as required by MCR 7.312(B)(1). The appellee shall file a
supplemental brief within 21 days of being served with the appellant’s
brief. The appellee shall also electronically file an appendix, or in the
alternative, stipulate to the use of the appendix filed by the appellant. A
reply, if any, must be filed by the appellant within 14 days of being
1024 505 MICHIGAN REPORTS
served with the appellee’s brief. The parties should not submit mere
restatements of their application papers.
MCCORMACK, C.J., not participating because of her prior involvement
in this case as counsel for a party.

Leave to Appeal Denied April 17, 2020:

BOMAN V CATHOLIC DIOCESE OF GRAND RAPIDS, No. 158201; Court of

Appeals No. 338458.
CAVANAGH, J. (dissenting). I dissent from the Court’s order denying
leave to appeal in this case. I believe this Court should consider whether
the Court of Appeals erred by affirming summary disposition of plain-
tiff’s claims based on direct negligence and vicarious liability arising
from the sexual abuse of plaintiff by defendant Abigail Simon, an
employee of schools operated by defendant Catholic Diocese of Grand
Rapids, while plaintiff was still a minor.
In order to sustain his claim of direct negligence, plaintiff was
required to establish (1) a duty owed by defendants to plaintiff, (2) a
breach of that duty, (3) causation, and (4) damages. Henry v Dow Chem
Co, 473 Mich 63, 71-72, (2005). While the Court of Appeals recognized
that teachers stand in loco parentis to their students and hence owe a
duty to exercise reasonable care over the students in their charge,
Gaincott v Davis, 281 Mich 515, 518-519 (1937), the Court of Appeals
concluded, without any analysis, that the doctrine of in loco parentis did
not extend to defendants in this case—the Diocese, administrators, and
coaches. It is not at all clear to me that, while the law imposes
“surrogate parent” status on teachers and an obligation to protect
children placed in their care, the law does not impose the same or
similar status and obligation on adults in defendants’ positions who
have similar relationships to minor students as teachers. The nature
and extent of the doctrine of in loco parentis are jurisprudentially
significant issues warranting consideration by this Court.
The Court of Appeals concluded that, even assuming that the
doctrine of in loco parentis extended to defendants, plaintiff could not
maintain his negligence claim because Ms. Simon’s sexual molestation
of plaintiff was not reasonably foreseeable to defendants. Foreseeability
of the risk or danger is a requirement for the existence of a duty to
protect an identifiable person or class of people from criminal conduct.
Hersh v Kentfield Builders, Inc, 385 Mich 410 (1971). “Foreseeability . . .
depends upon whether or not a reasonable man could anticipate that a
given event might occur under certain conditions.” Samson v Saginaw
Professional Bldg, Inc, 393 Mich 393, 406 (1977). As we observed in
Schultz v Consumers Power Co, 443 Mich 445, 452 n 7, “[a] plaintiff need
not establish that the mechanism of injury was foreseeable or antici-
pated in specific detail. It is only necessary that the evidence establishes
that some injury to the plaintiff was foreseeable or to be anticipated.”
Importantly, where reasonable minds could differ, foreseeability is a
question for the jury. Samson, 393 Mich at 407.
 ORDERS IN CASES 1025
Citing Brown v Brown, 478 Mich 545 (2007), the Court of Appeals
concluded that Ms. Simon’s abuse of plaintiff was not reasonably foresee-
able. But in Brown, in contrast to this case, the perpetrator did not
display any conduct toward the victim that would have put defendant on
notice of the eventual sexual assault; rather, the perpetrator engaged only
in “lewd” and “tasteless” sexual comments directed at the victim. See
Brown, 478 Mich at 562 (characterizing the issue in that case as “whether
an employer is entitled to judgment as a matter of law when the sole basis
for imposing liability for an employee’s rape of a third party is the
employee’s lewd and offensive comments”); see also id. at 547-548 (hold-
ing that “where an employee has no prior criminal record or history of
violent behavior indicating a propensity to rape, an employer is not liable
solely on the basis of the employee’s lewd comments for a rape perpetrated
by that employee if those comments failed to convey an unmistakable,
particularized threat of rape”) (emphasis added). Here, the record shows
that Ms. Simon engaged in inappropriate and troubling conduct that was
known to (indeed, sometimes observed by) the assistant football coach
and associate athletic director at West Catholic, the dean of students at
West Catholic, the principal at West Catholic, and others at Catholic
Central. For example, the principal at West Catholic testified that she
had concerns about Ms. Simon’s behavior at school, having observed
inappropriate conduct during Ms. Simon’s study hall class:

But there was very—it was very apparent that there were issues of
students as far as physical personal space that were not what I
would consider to be healthy for a tutor or teacher/student rela-
tionship.

* * *

But it didn’t take very long for us to notice that there were other
issues. Students would come to her desk and they would always be
looking at her computer. It was all the males, and they would be
uncomfortably close to Mrs. Simon [sic]. So our dean of students
got in the habit of walking in there on a regular basis, and then of
course the students would scatter. I would occasionally walk in
there, and of course our administrative assistant has kind of the
evil eye look and would give that to the students surrounding the
desk.

A teacher at West Catholic informed the principal that he observed

Ms. Simon acting “too friendly” to male students in particular. In fact,
this teacher told the principal that, had a male teacher acted the same
way toward female students, he would not be allowed to work at the
school. A coach, the dean of students, and the principal at West Catholic
all observed an incident in which Ms. Simon was sitting alone with a
male student during mass, describing her “blatant [show] of affection
[toward the student]” and “[seeking] him alone out to sit next to” as
troubling, inappropriate, and unhealthy.
1026 505 MICHIGAN REPORTS
While the Court of Appeals characterized this evidence as Ms. Simon
having “personal space” or “class management” or “professionalism”
issues, whether that is an accurate characterization or whether Ms.
Simon’s conduct was more accurately characterized as victim grooming
and predation of minors that foreseeably led to the sexual molestation of
plaintiff is an issue warranting further consideration by this Court. See
Hersh, 385 Mich at 413 (“ ‘The employer’s knowledge of past acts of
impropriety, violence, or disorder on the part of the employee is generally
considered sufficient to forewarn the employer who selects or retains such
employee in his service that he may eventually commit an assault,
although not every infirmity of character, such, for example, as dishon-
esty or querulousness, will lead to such result.’ ”) (citation omitted).
Likewise, I believe that whether plaintiff has raised a genuine issue
of material fact as to the Catholic Diocese of Grand Rapids’ vicarious
liability for Ms. Simon’s sexual assault of plaintiff warrants further
review. Under Hamed v Wayne Co, 490 Mich 1, 12 (2011), an employer
may be held vicariously liable for an employee’s criminal conduct when
“an employer had (1) actual or constructive knowledge of prior similar
conduct and (2) actual or constructive knowledge of the employee’s
propensity to act in accordance with that conduct.” To satisfy the first
prong of this test, there must be sufficient similarity between the prior
conduct of the employee and the conduct at issue as to lead a reasonable
employer to recognize the prior conduct as an “inevitable prelude” to
criminal sexual conduct or as conduct that would “inexorably lead to
criminal sexual conduct.” Brown, 478 Mich at 555; see also Hamed, 490
Mich at 16 (holding that a plaintiff’s prior aggressive conduct was
insufficient to put a defendant on notice for purposes of vicarious
liability because it would not “inevitably lead to acts of criminal sexual
conduct”). As discussed earlier, I believe this Court should consider
whether the record evidences conduct by Ms. Simon that a jury could
find to have been sufficiently similar to, or an “inevitable prelude” to, the
sexual molestation of plaintiff as to put the Diocese on notice that she
posed a threat of criminal conduct to a specific victim or victims.
MCCORMACK, C.J., and BERNSTEIN, J., join the statement of CAVANAGH, J.
PEOPLE V SHOULDERS, No. 159642; Court of Appeals No. 342408.
MARKMAN, J. (dissenting). I respectfully dissent because I would not
deny leave to appeal but instead would remand for resentencing.
Contrary to MCL 769.34(3)(a), which provides that “[t]he court shall not
use an individual’s . . . race . . . to depart from the appropriate sentence
range,” the trial court here expressly referenced defendant’s race in
order to justify its departure sentence below the legislative guidelines.
For this reason alone, resentencing is warranted. Furthermore, how-
ever, the sentence of probation imposed, in my view, constitutes an
abuse of sentencing discretion in light of the intrinsic seriousness of the
offense at issue—operating a motor vehicle while intoxicated causing
death, MCL 257.625(4). That is, for this offense, the sentencing guide-
lines always provide for a sentence of imprisonment, even where all
other offense variables (beyond Offense Variable 3, which is necessarily
 ORDERS IN CASES 1027
scored at 50 points) are scored at zero and all prior record variables are
also scored at zero. See MCL 777.12f; MCL 777.33(2)(c); MCL 777.64.
KUHLGERT V MICHIGAN STATE UNIVERSITY and OSTENDORF V MICHIGAN
STATE UNIVERSITY, Nos. 159865, 159866, and 159867; reported below: 328
Mich App 357.
MARKMAN, J. (concurring). At issue here is whether the injuries
sustained by Elisabeth Ostendorf were subject to the exclusive-remedy
provision, MCL 418.131(1), of the Worker’s Disability Compensation
Act, MCL 418.101 et seq. In my view, the Court of Appeals was correct in
concluding that her injuries were not subject to this provision on the
basis of MCL 418.161(1)(b) of the Act, which provides that “[n]ationals of
foreign countries employed pursuant to section 102(a)(1) of the mutual
educational and cultural exchange act of 1961, Public Law 87-256, 22
USC 2452, shall not be considered employees under this act.” As the
Court of Appeals explained, “22 USC 2452(1)(a) is not limited to those
educational exchange employees paid directly by the State Department.
Instead, by its plain language, the statute also applies to those employ-
ees [such as Ostendorf] who are indirectly financed by that entity
through its [exchange visitor programs].” Kuhlgert v Mich State Univ,
328 Mich App 357, 369 (2019).
I thus see no reason to decide whether the Court of Appeals was also
correct in concluding that her injuries were not subject to the exclusive-
remedy provision because they were not “receive[d] . . . arising out of
and in the course of employment,” MCL 418.301(1), where she was
injured while walking to her vehicle on the premises of her employer
after leaving the building in which she worked. See generally Simkins v
Gen Motors Corp (After Remand), 453 Mich 703 (1996).
Accordingly, because I agree with the Court of Appeals that Ms.
Ostendorf’s injuries were not subject to the exclusive-remedy provision
of the WDCA, I concur with our order denying leave to appeal.
In re A SCHEPPERLY, MINOR, No. 161006; Court of Appeals No. 349473.

Order Granting Oral Argument in Case Pending on Application for

Leave to Appeal Entered April 21, 2020:

PEOPLE V ALTANTAWI, No. 160436; Court of Appeals No. 346775. The

appellant shall file a supplemental brief within 42 days of the date of
this order addressing whether the juvenile defendant was subjected to a
“custodial interrogation” without being advised of his Miranda rights.
Miranda v Arizona, 384 US 436, 444 (1966). In addition to the brief, the
appellant shall electronically file an appendix conforming to MCR
7.312(D)(2). In the brief, citations to the record must provide the
appendix page numbers as required by MCR 7.312(B)(1). The appellee
shall file a supplemental brief within 21 days of being served with the
appellant’s brief. The appellee shall also electronically file an appendix,
or in the alternative, stipulate to the use of the appendix filed by the
appellant. A reply, if any, must be filed by the appellant within 14 days
1028 505 MICHIGAN REPORTS
of being served with the appellee’s brief. The parties should not submit
mere restatements of their application papers.
The Criminal Defense Attorneys of Michigan and the Prosecuting
Attorneys Association of Michigan are invited to file briefs amicus
curiae. Other persons or groups interested in the determination of the
issue presented in this case may move the Court for permission to file
briefs amicus curiae.

Leave to Appeal Denied April 21, 2020:

PEOPLE V ROBBIE TAYLOR, No. 160343; Court of Appeals No. 341307.

PEOPLE V WATKINS, No. 160480; Court of Appeals No. 340906.
MCCORMACK, C.J. (concurring). I concur in the order denying leave to
appeal but write separately to address the Court of Appeals’ analysis of
defendant Watkins’s claim that he was denied effective assistance of
counsel.
On the third day of the defendants’ joint trial for first-degree
premeditated murder, a juror sent a note to the trial court stating that
the juror believed supporters of the two defendants were “eyeballing”
the jury from the gallery in an attempt to intimidate. Addressing the
note, the court stated it would keep vigilant watch for any further
attempts at juror intimidation. And outside the presence of the jury, the
court warned the defendants and their attorneys that the behavior
needed to stop.
The next day of trial, counsel for codefendant Taylor moved the court
to replace the juror who had submitted the note, arguing that the juror
was “tainted.” The court denied the motion without prejudice. The court
explained that it would reconsider the matter if it appeared that further
efforts to intimidate the jury were made or if the spectators’ behavior
biased the jury. Taylor’s attorney argued that the next appropriate
remedy would be a mistrial, to which the court stated, “I have no basis
for entertaining anything like that at this point.”
Following lunch recess that same day, a different juror informed the
court that on the previous day of trial he had been approached in the
restroom by a man whom the juror recognized as a spectator. The juror
reported that this man asked him “if it was going up or down[.]” The
court addressed this matter on the record but outside the presence of the
remaining jurors. The solicited juror said that he did not know whether
the spectator was associated with either defendant and that while the
interaction made him feel “[a] little uncomfortable,” he did not believe it
would affect his judgment. The trial continued and the defendants were
convicted as charged.
In his appeal as of right, defendant Watkins argued that trial counsel
should have requested a mistrial after these incidents were brought to
counsel’s attention and that the failure to request a mistrial amounted
to ineffective assistance of counsel. The Court of Appeals rejected this
argument, stating:
 ORDERS IN CASES 1029
Given the gang-violence overtones of this case, a reasonable trial
attorney might just as well have decided not to move for a mistrial
because the spectators’ attempts to intimidate the jury might
have been successful. In other words, counsel might have reason-
ably believed that it was more likely that the intimidation tactics
would work against at least one juror than it was those tactics
would prejudice the entire jury pool to vote against convicting
Watkins. Therefore, Watkins has failed to rebut the strong
presumption that his trial counsel employed effective strategy in
deciding not to move for a mistrial. [People v Watkins, unpub-
lished per curiam opinion of the Court of Appeals, issued Septem-
ber 12, 2019 (Docket No. 340906), p 8.]

This hypothesis about defense counsel’s motives is unsupported and

unnecessary. Whether to move for a mistrial is generally a strategic
decision for which counsel is afforded wide latitude. But there is no
reason to assume that counsel viewed jury-intimidation efforts to his
client’s advantage. In my view, such reasoning comes too close to
imputing an endorsement of such tactics to defense counsel. And I find
the panel’s making that logical leap in this case especially suspect, given
that it denied the defendant’s motion to remand to the trial court for a
Ginther hearing.
Speculation as to counsel’s motivation isn’t necessary to evaluate the
defendant’s claim for relief. Defendant Watkins has not presented this
Court with any evidence that the jury’s overall ability to render an
impartial verdict was compromised such that the trial court would have
been compelled to grant a mistrial, had one been requested. By the time
the restroom incident was brought to the trial court’s attention, the
court had already explained, in clear terms that very morning, that the
court would not entertain a mistrial unless there were continued
attempts to intimidate the jury or evidence of actual juror bias, neither
of which occurred. Given this record, I conclude that defendant Watkins
has not shown a reasonable probability that a motion for a mistrial
would have been granted. I therefore concur in the order denying his
application for leave to appeal.
GREAT LAKES CAPITAL FUND FOR HOUSING LIMITED PARTNERSHIP XII V
ERWIN COMPANIES, LLC, No. 160569; Court of Appeals No. 349916.
In re SCHWARTZ, MINORS, No. 160987; Court of Appeals No. 349666.
In re PRATER/HICKMAN, MINORS, No. 161046; Court of Appeals No.
348001.

Summary Disposition April 22, 2020:

PEOPLE V OLNEY, No. 159390; reported below: 327 Mich App 319.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
remand this case to the Court of Appeals for consideration of the
defendant’s argument that MCL 768.27c does not apply to preliminary
examinations. We do not retain jurisdiction.
1030 505 MICHIGAN REPORTS
HOULE V EMC DEVELOPMENT, No. 160423; Court of Appeals No.
348480. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to
appeal, we remand this case to the Court of Appeals for consideration as
on leave granted.

Leave to Appeal Denied April 22, 2020:

PEOPLE V VARNER, No. 159748; Court of Appeals No. 333535.

MADISON V AAA OF MICHIGAN, No. 160466; Court of Appeals No.
342868.
MARKMAN, J. (concurring). Plaintiff brought this suit in district court
against defendant. Although plaintiff’s complaint asserted a claim
limited to $25,000, plaintiff presented proof of damages totaling
$144,480. The jury returned a verdict in favor of plaintiff in the amount
of $41,280. That verdict was reduced to the district court’s jurisdictional
limit of $25,000. The circuit court affirmed, but the Court of Appeals
reversed, holding that the district court lacked jurisdiction given that
plaintiff’s damages far exceeded the district court’s $25,000 jurisdic-
tional limit. See MCL 600.8301(1) (“The district court has exclusive
jurisdiction in civil actions when the amount in controversy does not
exceed $25,000.00.”).
In Hodge v State Farm Mut Auto Ins Co, 499 Mich 211, 213 (2016),
this Court held that “the allegations in the complaint establish the
amount in controversy.” I wrote a concurring opinion in which I agreed
with the majority “that ‘amount in controversy’ as used in MCL
600.8301(1) refers to the ‘prayer for relief set forth in the plaintiff’s
pleadings’ ” and “that a trial court may be ousted of subject-matter
jurisdiction when ‘fraud upon the court is apparent’ from pleadings
made in ‘bad faith.’ ” Id. at 224 (MARKMAN, J., concurring). I wrote
separately “only to identify circumstances that, in my view, might raise
questions concerning ‘bad faith’ pleading and thereby warrant dismissal
of a case for lack of jurisdiction.” Id. I explained that “the critical inquiry
in assessing bad faith is whether the plaintiff clearly intended to litigate
a case inconsistent with the amount in controversy pleaded.” Id. at 237.
That is, the critical inquiry is “what type of case the plaintiff intended,
when filing his or her pleading, to litigate.” Id. Finally, I agreed with the
majority that “because the present record does not sufficiently reflect
that plaintiff’s allegations were made in bad faith, because ‘defendant
made no allegation of bad faith in the pleadings,’ and because ‘there has
been no finding of bad faith by the district court,’ I believe that this
Court currently lacks a basis to conclude that plaintiff pleaded in bad
faith.” Id. at 227 n 2 (citation omitted).
In the instant case, this Court, relying on Hodge, reversed the Court
of Appeals, reinstated the judgment entered in the district court, and
remanded to the district court for further proceedings. On remand,
defendant filed a motion for relief from judgment arguing that the
district court lacked subject-matter jurisdiction because plaintiff’s coun-
sel acted in bad faith by alleging an amount of damages in the complaint
that he knew would be exceeded by the proofs. The district court found
 ORDERS IN CASES 1031
that plaintiff’s attorney had acted in bad faith and dismissed the case.
The circuit court reversed, concluding that the law-of-the-case doctrine
barred the district court from overruling this Court’s ruling regarding
subject-matter jurisdiction. The Court of Appeals affirmed, not because
of the law-of-the-case doctrine, but because defendant’s claim of bad
faith was untimely.
The last time this case was before this Court, it was in a similar
posture as Hodge in the sense that the record did not sufficiently reflect
that plaintiff’s allegations were made in bad faith, defendant had made
no allegation of bad faith in the pleadings, and there had been no finding
of bad faith by the district court. Now, defendant has made an allegation
of bad faith in the pleadings and the district court has made a finding of
bad faith. However, in my opinion, the record still does not sufficiently
reflect that plaintiff’s allegations were made in bad faith. Neither
plaintiff nor plaintiff’s trial attorney testified about why the case was
filed in district court. Instead, the only additional evidence that we have
is plaintiff’s appellate attorney’s testimony, in which he surmised that
plaintiff’s trial attorney probably filed in district court because he
thought that he had a better chance of prevailing in the district court.
However, this is mere speculation. Accordingly, I continue to believe that
this Court lacks a sufficient basis to conclude that plaintiff pleaded in
bad faith. Therefore, I concur in this Court’s order denying leave to
appeal.
In re LIPSCOMB, No. 160767; Court of Appeals No. 351259.

Summary Disposition April 24, 2020:

PEOPLE V JOHNNY KENNEDY, No. 160320; Court of Appeals No. 323741.

Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
reverse that part of the Court of Appeals judgment holding that the
defendant’s constitutional challenge is unpreserved. “The Constitution
guarantees a fair trial through the Due Process Clauses, but it defines
the basic elements of a fair trial largely through the several provisions
of the Sixth Amendment . . . .” Strickland v Washington, 466 US 668,
684-685 (1984). Because a criminal defendant’s interest in expert
assistance under People v Kennedy, 502 Mich 206, 228 (2018), is
grounded in due process, and the defendant’s motion for expert assis-
tance in the trial court asked for relief under US Const, Am VI, his due-
process challenge was preserved. We vacate the remainder of the Court
of Appeals judgment and remand this case for reconsideration under the
standard for preserved constitutional error. People v Anderson (After
Remand), 446 Mich 392, 405-406 (1994). We do not retain jurisdiction.

Leave to appeal granted April 24, 2020:

PEARCE V EATON COUNTY ROAD COMMISSION, No. 158069; reported below:

324 Mich App 549. By order of December 4, 2018, the application for
leave to appeal the June 7, 2018 judgment of the Court of Appeals was
1032 505 MICHIGAN REPORTS
held in abeyance pending the decision in W A Foote Mem Hosp v Mich
Assigned Claims Plan (Docket No. 156622). On order of the Court, the
case having been decided on October 25, 2019, 504 Mich 985 (2019), the
application is again considered, and it is granted. The parties shall
address: (1) whether Streng v Bd of Mackinac Co Rd Comm’rs, 315 Mich
App 449 (2016), lv den 500 Mich 919 (2016), was correctly decided, and
if so (2) whether Streng “clearly established a new principle of law” and
thereby satisfied the threshold question for retroactivity set forth in
Pohutski v City of Allen Park, 465 Mich 675, 696 (2002), compare
Pohutski, 465 Mich at 696-697 (citations omitted) (“Although this
opinion gives effect to the intent of the Legislature that may be
reasonably be inferred from the text of the governing statutory provi-
sions, practically speaking our holding is akin to the announcement of a
new rule of law, given the erroneous interpretations set forth in
[Hadfield v Oakland Co Drain Comm’r, 430 Mich 139 (1988) and [Li v
Feldt (After Remand), 434 Mich 585 (1990)].”) with Wayne Co v
Hathcock, 471 Mich 445, 484 (2004) (“Our decision today [overruling
Poletown Neighborhood Council v Detroit, 410 Mich 616 (1981)] does not
announce a new rule of law, but rather returns our law to that which
existed before Poletown and which has been mandated by our Consti-
tution since it took effect in 1963.”). See also Chevron Oil v Huson, 404
US 97, 106 (1971) (citations omitted) (holding that a decision establishes
a new principle of law, such that it may be applied retroactively, if it
“overrul[es] clear past precedent on which litigants may have re-
lied . . .”); and if so (3) whether Streng should be applied retroactively
under the “three factor test” set forth in Pohutski.
We further order that this case be argued and submitted to the Court
together with the case of Brugger v Midland Co Bd of Road Commis-
sioners, Docket No. 158304, at such future session of the Court as both
cases are ready for submission.
The total time allowed for oral argument shall be 60 minutes: 30
minutes for appellants and 30 minutes for appellees, to be divided at
their discretion. MCR 7.314(B)(1).
The Negligence Law Section of the State Bar of Michigan, Michigan
Association of Counties, and Michigan Municipal League are invited to
file briefs amicus curiae. Other persons or groups interested in the
determination of the issues presented in this case may move the Court
for permission to file briefs amicus curiae. Motions for permission to file
briefs amicus curiae and briefs amicus curiae regarding these cases
should be filed in Estate of Brendon Pearce v Eaton County Road
Commission, Docket No. 158069, only and served on the parties in both
cases.
MARKMAN J. (concurring). I concur with our orders granting leave to
appeal in this case and in Brugger v Midland Co Bd of Rd Comm’rs,
Docket No. 158304. I write separately only to encourage the parties and
any amici, when addressing the issue of the retroactivity of Streng v Bd
of Mackinac Co Rd Comm’rs, 315 Mich App 449 (2016), lv den 500 Mich
919 (2016), to address the relevance of the tension identified in Pohutski
v City of Allen Park, 465 Mich 675 (2002), between “the general rule . . .
that judicial decisions are given full retroactive effect” and the exception
 ORDERS IN CASES 1033
to that rule of “a more flexible approach . . . where injustice might result
from full retroactivity [of a corrected interpretation of the law],” id. at
695-696, as well as what consideration should be given to any asserted
“injustice” that might result to the prevailing party in cases in which the
new rule is applied prospectively only.
BRUGGER V MIDLAND COUNTY BOARD OF ROAD COMMISSIONERS, No. 158304;
Court of Appeals No. 337394. By order of December 4, 2018, the
application for leave to appeal the May 15, 2018 judgment of the Court
of Appeals was held in abeyance pending the decision in W A Foote Mem
Hosp v Mich Assigned Claims Plan (Docket No. 156622). On order of the
Court, the case having been decided on October 25, 2019, 504 Mich 985
(2019), the application is again considered, and it is granted. The parties
shall address: (1) whether Streng v Bd of Mackinac Co Rd Comm’rs, 315
Mich App 449 (2016), lv den 500 Mich 919 (2016), was correctly decided,
and if so (2) whether Streng “clearly established a new principle of law”
and thereby satisfied the threshold question for retroactivity set forth in
Pohutski v City of Allen Park, 465 Mich 675, 696 (2002), compare
Pohutski, 465 Mich at 696-697 (citations omitted) (“Although this
opinion gives effect to the intent of the Legislature that may be
reasonably be inferred from the text of the governing statutory provi-
sions, practically speaking our holding is akin to the announcement of a
new rule of law, given the erroneous interpretations set forth in
[Hadfield v Oakland Co Drain Comm’r, 430 Mich 139 (1988) and [Li v
Feldt (After Remand), 434 Mich 585 (1990)].”) with Wayne Co v
Hathcock, 471 Mich 445, 484 (2004) (“Our decision today [overruling
Poletown Neighborhood Council v Detroit, 410 Mich 616 (1981)] does not
announce a new rule of law, but rather returns our law to that which
existed before Poletown and which has been mandated by our Consti-
tution since it took effect in 1963.”). See also Chevron Oil v Huson, 404
US 97, 106 (1971) (citations omitted) (holding that a decision establishes
a new principle of law, such that it may be applied retroactively, if it
“overrul[es] clear past precedent on which litigants may have re-
lied . . .”); and if so (3) whether Streng should be applied retroactively
under the “three factor test” set forth in Pohutski.
We further order that this case be argued and submitted to the Court
together with the case of Estate of Brendon Pearce v Eaton County Road
Commission, Docket No. 158069, at such future session of the Court as
both cases are ready for submission. The total time allowed for oral
argument shall be 60 minutes: 30 minutes for appellants and 30
minutes for appellees, to be divided at their discretion. MCR 7.314(B)(1).
The Negligence Law Section of the State Bar of Michigan, Michigan
Association of Counties, and Michigan Municipal League are invited to
file briefs amicus curiae. Other persons or groups interested in the
determination of the issues presented in this case may move the Court
for permission to file briefs amicus curiae. Motions for permission to file
briefs amicus curiae and briefs amicus curiae regarding these cases
should be filed in Estate of Brendon Pearce v Eaton County Road
Commission, Docket No. 158069, only and served on the parties in both
cases.
1034 505 MICHIGAN REPORTS
MARKMAN J. (concurring). I concur with our orders granting leave to
appeal in this case and in Estate of Brendon Pearce v Eaton Co Rd
Comm, Docket No. 158069. I write separately only to encourage the
parties and any amici, when addressing the issue of the retroactivity of
Streng v Bd of Mackinac Co Rd Comm’rs, 315 Mich App 449 (2016), lv
den 500 Mich 919 (2016), to address the relevance of the tension
identified in Pohutski v City of Allen Park, 465 Mich 675 (2002), between
“the general rule . . . that judicial decisions are given full retroactive
effect” and the exception to that rule of “a more flexible approach . . .
where injustice might result from full retroactivity [of a corrected
interpretation of the law],” id. at 695-696, as well as what consideration
should be given to any asserted “injustice” that might result to the
prevailing party in cases in which the new rule is applied prospectively
only.

Order Granting Oral Argument in Case Pending on Application for

Leave to Appeal Entered April 24, 2020:

PEOPLE V URIBE, No. 159194; Court of Appeals No. 338586. We direct

the Clerk to schedule oral argument on the application. MCR
7.305(H)(1). The appellant shall file a supplemental brief within 42 days
of the date of this order addressing: (1) whether Dr. Guertin’s testimony
about the complainant’s statements to him was admissible under the
medical treatment exception to the hearsay rule, see People v Garland,
286 Mich App 1 (2009), and People v Shaw, 315 Mich App 668 (2016); (2)
whether Dr. Guertin’s testimony was contrary to this Court’s decision in
People v Thorpe, 504 Mich 230 (2019), and/or People v Harbison, 504
Mich 230 (2019); and (3) if error occurred, whether reversal of the
defendant’s convictions is warranted.
In addition to the brief, the appellant shall electronically file an
appendix conforming to MCR 7.312(D)(2). In the brief, citations to the
record must provide the appendix page numbers as required by MCR
7.312(B)(1). The appellee shall file a supplemental brief within 21 days of
being served with the appellant’s brief. The appellee shall also electroni-
cally file an appendix, or in the alternative, stipulate to the use of the
appendix filed by the appellant. A reply, if any, must be filed by the
appellant within 14 days of being served with the appellee’s brief. The
parties should not submit mere restatements of their application papers.
The Criminal Defense Attorneys of Michigan and the Prosecuting
Attorneys Association of Michigan are invited to file briefs amicus
curiae. Other persons or groups interested in the determination of the
issues presented in this case may move the Court for permission to file
briefs amicus curiae.

Leave to Appeal Denied April 24, 2020:

PEOPLE V GNAT, No. 159427; Court of Appeals No. 340978.

CAVANAGH, J. (dissenting). I respectfully dissent from the Court’s
order denying leave to appeal. Defendant and the trial court have
 ORDERS IN CASES 1035
identified serious questions about prosecutorial misconduct in this case
and about appellate review of prosecutorial misconduct more generally,
and these questions merit this Court’s review.
Defendant was convicted of sexually assaulting his daughter, SG.
Trial testimony consisted of the complainant and defendant’s ex-wife
recounting a prolonged history of emotional abuse, and the complainant
recounting sexual abuse. Additionally, a jailhouse informant testified
that defendant admitted kissing his daughter in a sexual manner. The
trial court specifically limited testimony that might merely repeat the
complainant’s allegations. Defendant did not testify, but defense counsel
argued that the allegations were concocted to interfere with his visita-
tion.
The prosecutor made two problematic arguments in closing. First,
the prosecutor said of the complainant, “She’s told me on a couple of
different occasions. She testified in a lower court in front of a different
judge . . . . She’s been questioned in a lower court by two lawyers, myself
and a different lawyer than [defense counsel].” Second, the prosecutor
argued:
I have been a prosecutor for almost 14 years and in the last few
years these are the only kinds of cases that I try. . . . And what I
found is that in every case, no matter what kind of crime it is,
victims lose something, whether it’s money, whether it’s property,
whether it’s time healing from wounds or sometimes a loved one,
but these cases are different. These cases cause victims to lose a
lot more than those things that I just listed for you. They lose a
sense of trust in themselves and in the people that should be
taking care of them and making sure that they are safe. They lose
a sense of self about them. They question the decisions they
make, and no doubt [SG] is no different. Did she make the right
decision to not tell her mom the very first time that something
happened? Did she make the right decision to appease her father
to insure that her mother wasn’t harmed in some way? They
question everything about what they did from the beginning of
the contacts all the way until they disclose. And so that sense of
self, that sense of trust in themselves is shaken to the core.

Defense counsel objected that the prosecutor had argued facts not in
evidence by stating the complainant had previously been interviewed
and testified, that the prosecutor had vouched for the complainant by
implying the case had been previously reviewed, and that the prosecutor
had vouched for the complainant by invoking the prosecutor’s 14 years
of experience. The trial court found the objections compelling:
It does appear to me to be a problem in talking about the fact that
the case comes to the jury after [SG] has talked to all of these
people including me, the Prosecutor, and another judge. It does,
does certainly approach the line or go over the line as to trying to
persuade the jury that this matter has already been looked at by
others, other people have already made the determination that
1036 505 MICHIGAN REPORTS
Mr. Gnat is guilty and therefore you should do the logical thing
and also find that he is guilty because all of these other people
can’t be wrong. It’s a problem.
The next one is when the prosecutor was saying that I’m an
experienced prosecutor and these cases are different. There was
no testimony in the record and, indeed the prosecutor could not
take the stand and say that I’m a Prosecuting Attorney, I’ve tried
a lot of these cases, these cases are different, the victims of these
cases suffer a particular type of harm that is far different than the
victims in other cases. . . .
However, the trial court declined to rule on the objections, saying,
“We should proceed to the remainder of the arguments, proceed to get a
verdict and then if the verdict is not guilty all of these matters are
moot. . . . And I’m not deciding that one way or the other right now.” The
jury convicted defendant, and the trial court revisited the matter at
sentencing:

Let’s say, I agree with you, as I do, that those were improper
comments by the prosecutor. She certainly should not have talked
about all of her years of experience as a prosecutor, as soon as that
phrase came out, I felt the hair on the back of my neck stand up,
as I could not believe I was hearing that from an experienced,
highly ethical, well qualified assistant prosecuting attorney. But
she said it and obviously she can’t take it back, there’s nothing
that anybody could do to take it back.
Also then when she talked about, that this victim told the story
previously to a judge, . . . it was clear that, as your motion indi-
cates, that she was vouching for the credibility of the victim by
putting before the jury matters that were not in evidence. I agree.

The trial court noted that no curative instruction had been requested.
Defense counsel stated that he did not think “a curative instruction at
that point . . . would’ve been enough,” and the trial court responded,
“I . . . tend to agree with you that if the damage is sufficient to be
reversible error, that no instruction at that point would’ve done any
good . . . .” The court further opined, “I realize that that kind of curative
or cautionary instruction is almost meaningless in terms of what the
jury would make of it.” The court went on:

. . . I looked at all of the appellate cases, well, obviously I couldn’t

look at all of them, but page after page on my Westlaw, talked
about prosecutorial misconduct, talked about vouching for wit-
nesses, and it’s like ninety nine point nine percent of the cases
from the Court of Appeals come back affirming the conviction
anyway because they regard it as harmless error. . . .
Now, I did make the remark that maybe the reason why
assistant prosecutors in prosecutor’s offices throughout the State
fall into these errors so often is that there’s no real sanction for it,
because the trial judge feels constrained to deny the motion
 ORDERS IN CASES 1037
because the judge doesn’t want to put the victim through another
trial and also the great weight of the evidence, as it is in this case,
appears to me to be in favor of the prosecutor. And, so, the trial
judges do not dismiss or grant new trials and the Court of Appeals
almost routinely affirms. That does appear to me to be a problem
because it means that there never seems to be any sanction to
cause prosecutor’s offices to take seminars, think about this, sit
down, figure out, not to introduce these types of arguments.
Nonetheless, the court concluded, “although these errors are troubling,
I do not think that it introduced into the trial such error as to overcome
the great weight of the evidence which favored conviction.”
Prosecutors have the responsibility of “a minister of justice, not simply
that of an advocate.” People v Jones, 468 Mich 345, 354 (2003). See also
MRPC 3.8. This responsibility informs a prosecutor’s methods of advo-
cacy. As the United States Supreme Court has stated, “it is as much [a
prosecutor’s] duty to refrain from improper methods calculated to produce
a wrongful conviction as it is to use every legitimate means to bring about
a just one.” Berger v United States, 295 US 78, 88 (1935). Said another
way, while a prosecutor “may strike hard blows, he is not at liberty to
strike foul ones.” Id. We have made clear that foul blows include
“vouch[ing] for the credibility of his witnesses to the effect that he has
some special knowledge concerning a witness’ truthfulness,” People v
Bahoda, 448 Mich 261, 276 (1995); arguing facts not in evidence, People
v Lusk, 225 Mich 642, 644-645 (1923); and asking a jury to sympathize
with a complainant, see People v Reid, 295 Mich 572, 575 (1940).
Defendant argues that the prosecutor landed all three kinds of these
foul blows, and the trial court agreed. The trial court noted that no
curative instruction was given and also opined that any curative
instruction would have been “essentially meaningless.” The trial court
observed that in the face of errors like these, convictions are “routinely”
affirmed, that trial courts feel “constrained” to deny motions for mistrial
for fear of forcing complainants to testify a second time, and that
prosecutors face “no real sanction” for this type of conduct. Further, the
trial court stated that in the absence of a sanction there was no incentive
for “prosecutor’s offices to take seminars, think about this, sit down,
figure out, not to introduce these types of arguments.”
The Court of Appeals affirmed, essentially giving three reasons.
First, the Court of Appeals observed that the jury had been given the
standard instruction that lawyers’ arguments are not evidence. People v
Gnat, unpublished opinion per curiam of the Court of Appeals, issued
February 28, 2019 (Docket No. 340978), p 6. While it is true that jurors
were given the standard jury instruction that lawyers’ arguments are
not evidence, no curative instruction was given. Given the trial court’s
agreement with defense counsel’s statement that a specific curative
instruction would not have “been enough,” I do not see how the generic
instruction could have been. Second, the Court of Appeals reasoned that
“SG’s testimony was strong, direct evidence of defendant’s guilt.” Id. If
the question is whether multiple prosecutorial errors skewed the jury’s
view of SG’s testimony, I cannot see how the observation that SG
testified answers the question. Finally, the Court of Appeals said that it
1038 505 MICHIGAN REPORTS
“has previously declined to reverse a conviction where isolated, im-
proper remarks did not cause a miscarriage of justice.” This is more of a
conclusion than an argument, as whether a miscarriage of justice was
caused is the question. And none of this addresses the trial court’s
observations about how claims of prosecutorial conduct are being
reviewed, and the possible consequences of that review.
It seems clear to me that this issue “involves a legal principle of
major significance to the state’s jurisprudence,” MCR 7.305(B)(3). I
would grant oral argument on the application and invite amicus curiae
briefs from interested parties.
In re XD BERRY, MINOR, No. 161023; Court of Appeals No. 349143.

Summary Disposition April 29, 2020:

PEOPLE V PLULIK, No. 160478; Court of Appeals No. 350098. Pursuant

to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this
case to the Court of Appeals for consideration as on leave granted.
PEOPLE V SUTTLES, No. 160499; Court of Appeals No. 348912. Pursuant
to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the
October 8, 2018 order of the Eaton Circuit Court denying the defen-
dant’s motion for relief from judgment, and we remand this case to the
trial court for reconsideration of the defendant’s motion. The trial
court’s stated bases for denying the motion were that the motion was
“untimely,” and “defendant has been released from prison and/or parole
has been terminated, therefore this matter is moot.” MCR 6.502 does not
contain a deadline by which motions for relief from judgment must be
filed. Further, the prosecuting attorney concedes there is not a basis for
finding that the defendant’s motion is moot. We do not retain jurisdic-
tion.
JAMES TOWNSHIP V RICE, No. 160646; Court of Appeals No. 349558.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
remand this case to the Court of Appeals for consideration as on leave
granted.

Leave to Appeal Denied April 29, 2020:

In re ESTATE AND TRUST OF ROBERT E WHITTON, No. 158425; Court of

Appeals No. 341737.
SMITH V HERTZ SCHRAM, PC, No. 158583; Court of Appeals No. 337826.
PEOPLE V MATTI, No. 159462; Court of Appeals No. 346049.
PEOPLE V JOSHUA BOWMAN, No. 159626; Court of Appeals No. 339086.
PEOPLE V GUTHRIE, No. 159643; Court of Appeals No. 341269.
HUGHES V CITY OF LIVONIA, No. 159729; Court of Appeals No. 340447.
 ORDERS IN CASES 1039
KICKHAM HANLEY PLLC V OAKLAND COUNTY, No. 159758; Court of
Appeals No. 341076.
In re FREEMAN, No. 159854; Court of Appeals No. 346594.
PEOPLE V MARTIN JONES, No. 159890; Court of Appeals No. 340334.
PEOPLE V GARDINER, No. 159942; Court of Appeals No. 339631.
PEOPLE V VAYKO, No. 160002; Court of Appeals No. 347344.
MILLER V WB HOLDINGS, LLC, No. 160027; Court of Appeals No.
341139.
SWAIN V MILES TRUCKING & EXCAVATING COMPANY, No. 160037; Court of
Appeals No. 347760.
PEOPLE V BATTS, No. 160079; Court of Appeals No. 340032.
PEOPLE V MARCHESE, No. 160080; Court of Appeals No. 347419.
PEOPLE V THREATT, No. 160101; Court of Appeals No. 339432.
PEOPLE V STURZA, No. 160107; Court of Appeals No. 341366.
In re LEWIS, MINOR, No. 160113; Court of Appeals No. 337716.
PEOPLE V VIRGIN, No. 160118; Court of Appeals No. 348969.
PEOPLE V SAMUEL CALHOUN, No. 160134; Court of Appeals No. 349993.
PEOPLE V ANTOINE SCOTT, No. 160167; Court of Appeals No. 339325.
PEOPLE V KENNETH JENKINS, No. 160202; Court of Appeals No. 337624.
ALLEN PARK RETIREES ASSOCIATION, INC V CITY OF ALLEN PARK, No.
160207; Court of Appeals No. 341567.
PEOPLE V PRINGLE, No. 160210; Court of Appeals No. 348902.
COBB V PARKS, No. 160211; Court of Appeals No. 342774.
BERNSTEIN, J., did not participate because he has a family member
with an interest that could be affected by the proceeding.
PEOPLE V MACAULEY, No. 160215; Court of Appeals No. 339249.
PEOPLE V TRAVIS WILSON, No. 160224; Court of Appeals No. 340542.
VIVIANO, J., did not participate due to a familial relationship with a
circuit court judge involved in this case.
PEOPLE V TODD ROBINSON, No. 160229; Court of Appeals No. 348424.
PEOPLE V DIALLO, No. 160255; Court of Appeals No. 342800.
PEOPLE V ERNEST, No. 160286; Court of Appeals No. 349453.
PACKARD V BROWN, No. 160331; Court of Appeals No. 344720.
1040 505 MICHIGAN REPORTS
CAVANAGH, J., did not participate due to her prior relationship with
Garan Lucow Miller, P.C.
TRENKAMP V KEYSER, No. 160333; Court of Appeals No. 342479.
PEOPLE V CREWS, No. 160335; Court of Appeals No. 348741.
PEOPLE V LEVANDUSKI, No. 160345; Court of Appeals No. 341934.
PEOPLE V CHARLES BROWN, No. 160350; Court of Appeals No. 349574.
PEOPLE V RODNEY MARTIN, No. 160361; Court of Appeals No. 348507.
PEOPLE V RAWSON, No. 160362; Court of Appeals No. 349996.
PEOPLE V DUSTIN HAWKINS, No. 160366; Court of Appeals No. 339087.
PEOPLE V ROSAS, No. 160386; Court of Appeals No. 350614.
PEOPLE V TIMES, No. 160402; Court of Appeals No. 348550.
LANSING PARKVIEW, LLC V K2M GROUP, LLC, No. 160421; Court of
Appeals No. 344192.
PEOPLE V JUSTIN BELL, No. 160434; Court of Appeals No. 345407.
PEOPLE V ALVAREZ, No. 160435; Court of Appeals No. 349913.
PEOPLE V BERLANGA, No. 160439; Court of Appeals No. 349332.
PEOPLE V DUDLEY, No. 160456; Court of Appeals No. 343081.
PEOPLE V RUSH, No. 160459; Court of Appeals No. 349890.
PEOPLE V PAGE, No. 160464; Court of Appeals No. 349098.
PEOPLE V HEATHER WATTS, No. 160473; Court of Appeals No. 349064.
PEOPLE V WINE, No. 160489; Court of Appeals No. 344610.
WILLIAMS V GRILLO-ROGERS, No. 160493; Court of Appeals No. 349390.
CITIMORTGAGE, INC V BAMBAS, No. 160500; Court of Appeals No. 348228.
CITIMORTGAGE, INC V BAMBAS, No. 160502; Court of Appeals No. 348275.
CITY OF STERLING HEIGHTS V MACOMB INTERCEPTOR DRAIN DRAINAGE
DISTRICT, No. 160520; Court of Appeals No. 342870.
VIVIANO, J., did not participate due to a familial relationship with
counsel of record.
PARKER V DEARBORN PUBLIC SCHOOLS, No. 160523; Court of Appeals No.
344897.
PEOPLE V HAKOLA, No. 160524; Court of Appeals No. 349895.
PEOPLE V PHILLIPS, No. 160541; Court of Appeals No. 350060.
PEOPLE V KEVIN SMITH, No. 160558; Court of Appeals No. 336247.
 ORDERS IN CASES 1041
BROOKS-JOHNSON V US BANK NATIONAL ASSOCIATION, No. 160564; Court
of Appeals No. 344861.
PEOPLE V DARREN JOHNSON, No. 160567; Court of Appeals No. 349529.
RODRIGUE V COMPREHENSIVE MEDICAL CENTER, PLLC, No. 160573; Court
of Appeals No. 349575.
PEOPLE V DEONTE MCCOY, No. 160580; Court of Appeals No. 342015.
PEOPLE V ROBERT PARKER, No. 160587; Court of Appeals No. 350511.
PEOPLE V HATHAWAY, No. 160589; Court of Appeals No. 349488.
ADKINS V GABOR, Nos. 160599 and 160600; Court of Appeals Nos.
342836 and 342838.
CAVANAGH, J., did not participate due to her prior relationship with
Garan Lucow Miller, P.C.
In re LOUISE K VAN SLOOTEN REVOCABLE LIVING TRUST and In re MARION
VAN SLOOTEN TRUST, Nos. 160601 and 160602; COURT OF APPEALS Nos.
345908 and 345909.
FORNER V DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS, No.
160607; Court of Appeals No. 345617.
PEOPLE V MCNEES, No. 160611; Court of Appeals No. 349518.
ASKEW V INGHAM COUNTY SHERIFF, No. 160616; Court of Appeals No.
350201.
ABDULKARIM V RONALD S LEDERMAN, MD, PLLC, No. 160620; Court of
Appeals No. 341950.
PEOPLE V PHILLIP HALL, No. 160623; Court of Appeals No. 342892.
PEOPLE V WILCOX, No. 160624; Court of Appeals No. 349406.
LUONGO V DUNCHOCK, No. 160637; Court of Appeals No. 346261.
PEOPLE V DENHOF, No. 160641; Court of Appeals No. 349438.
PEOPLE V TERAH STAMPS, No. 160642; Court of Appeals No. 350693.
PEOPLE V STEINER, No. 160647; Court of Appeals No. 349771.
PEOPLE V LATELY, No. 160652; Court of Appeals No. 350469.
PEOPLE V SAMUEL CALHOUN, No. 160653; Court of Appeals No. 349723.
PEOPLE V WIREMAN, No. 160654; Court of Appeals No. 350523.
PEOPLE V NICKLEBERRY, No. 160665; Court of Appeals No. 349389.
PEOPLE V CORSER, No. 160674; Court of Appeals No. 343635.
PEOPLE V VEGA, No. 160677; Court of Appeals No. 350468.
PEOPLE V DONALD WRIGHT, No. 160681; Court of Appeals No. 350848.
1042 505 MICHIGAN REPORTS
PEOPLE V FOX, No. 160687; Court of Appeals No. 349693.
PEOPLE V WASIKOWSKI, No. 160689; Court of Appeals No. 350920.
PEOPLE V LONG, No. 160691; Court of Appeals No. 349757.
ABBAS V CITY OF KALAMAZOO, No. 160692; Court of Appeals No. 349893.
PEOPLE V LARRY HARRIS, No. 160695; Court of Appeals No. 344028.
PEOPLE V CHRISTOPHER WOOD, No. 160697; Court of Appeals No.
342900.
PEOPLE V BETHANY, No. 160699; Court of Appeals No. 350927.
PEOPLE V BEMIS, No. 160700; Court of Appeals No. 345714.
PEOPLE V MONTGOMERY, No. 160710; Court of Appeals No. 342247.
PEOPLE V ELLEDGE, No. 160711; Court of Appeals No. 342464.
PEOPLE V DUNCAN COLE, No. 160717; Court of Appeals No. 349720.
PEOPLE V ALPHONSO WALKER, No. 160722; Court of Appeals No. 349849.
PEOPLE V LAMONTE JOHNSON, No. 160724; Court of Appeals No. 344168.
GAPPY V GAPPY, No. 160725; Court of Appeals No. 342861.
PEOPLE V CRUZ, No. 160733; Court of Appeals No. 350720.
PEOPLE V GERMAN, No. 160739; Court of Appeals No. 346638.
BAUER V HOUSE OF REPRESENTATIVES, No. 160744; Court of Appeals No.
346862.
PEOPLE V ORTIZ-NIEVES, No. 160745; Court of Appeals No. 342256.
GRIEVANCE ADMINISTRATOR V MCCARTHY, No. 160746.
CAVANAGH, J., did not participate due to her prior service as a member
of the Attorney Grievance Commission.
PEOPLE V DURBIN, No. 160748; Court of Appeals No. 345148.
PEOPLE V LARKIN, No. 160749; Court of Appeals No. 341303.
PEOPLE V PARISIAN-EAGLE, No. 160754; Court of Appeals No. 351361.
PEOPLE V JASON GRAHAM, No. 160758; Court of Appeals No. 350990.
PEOPLE V JILLEENE PARKER, No. 160759; Court of Appeals No. 351192.
PEOPLE V BEAL, No. 160760; Court of Appeals No. 350954.
PEOPLE V TIMOTHY JONES, Nos. 160761 and 160762; Court of Appeals
Nos. 344198 and 344509.
PEOPLE V AYOB, No. 160763; Court of Appeals No. 350770.
PEOPLE V GRICE, No. 160764; Court of Appeals No. 351264.
 ORDERS IN CASES 1043
PEOPLE V MCGOWAN, No. 160771; Court of Appeals No. 350328.
HILLS V POST, No. 160774; Court of Appeals No. 345038.
PEOPLE V KEVIN BOWMAN, No. 160779; Court of Appeals No. 350496.
PEOPLE V TURPIN, No. 160781; Court of Appeals No. 351129.
PEOPLE V TIMOTHY BALDWIN, No. 160784; Court of Appeals No. 349925.
PEOPLE V FLORES, No. 160789; Court of Appeals No. 351384.
PEOPLE V TERRANCE SCOTT, No. 160791; Court of Appeals No. 350804.
PEOPLE V JOEVIAIR KENNEDY, No. 160793; Court of Appeals No. 344784.
PEOPLE V DARRYL JACKSON, No. 160794; Court of Appeals No. 346739.
PEOPLE V PATTEN, No. 160801; Court of Appeals No. 343798.
PEOPLE V MARTIN GRAHAM, No. 160808; Court of Appeals No. 345144.
PEOPLE V WAYNE MOORE, No. 160811; Court of Appeals No. 345674.
PEOPLE V WAIRE, No. 160812; Court of Appeals No. 344785.
PEOPLE V HENDRIX, No. 160817; Court of Appeals No. 342462.
PEOPLE V BLOND, No. 160818; Court of Appeals No. 344434.
PEOPLE V MARSHALL, No. 160820; Court of Appeals No. 351189.
PEOPLE V HEARD, No. 160821; Court of Appeals No. 351023.
HICKS V HEALY, No. 160825; Court of Appeals No. 343015.
PEOPLE V WINSTON, No. 160833; Court of Appeals No. 350766.
PEOPLE V RICKY THOMAS, No. 160837; Court of Appeals No. 343884.
PEOPLE V OSWALD WILDER, No. 160840; Court of Appeals No. 350967.
PEOPLE V LAY, No. 160841; Court of Appeals No. 345202.
PEOPLE V WILSON-BEAUFORD, No. 160848; Court of Appeals No. 351003.
PEOPLE V NORMAN, No. 160861; Court of Appeals No. 351279.
PEOPLE V ARMOUR, No. 160862; Court of Appeals No. 351353.
PEOPLE V SERGIO HARE, No. 160867; Court of Appeals No. 344440.
PEOPLE V DAVID JOHNSON, No. 160868; Court of Appeals No. 344760.
PEOPLE V STEVEN SIMMONS, No. 160874; Court of Appeals No. 342842.
PEOPLE V JIMMY GREEN, No. 160896; Court of Appeals No. 350852.
PEOPLE V TYRONE HILL, No. 160900; Court of Appeals No. 350455.
1044 505 MICHIGAN REPORTS
DONALDSON V DEPARTMENT OF HEALTH AND HUMAN SERVICES, No. 160933;
Court of Appeals No. 352311.
PEOPLE V MAYO, No. 160938; Court of Appeals No. 351445.
PEOPLE V RAND GOULD, No. 160950; Court of Appeals No. 350471.
PEOPLE V SPILLER, No. 160952; Court of Appeals No. 351569.
PEOPLE V GARRY JACKSON, No. 160954; Court of Appeals No. 350702.
PEOPLE V HACKER, No. 160960; Court of Appeals No. 351551.
PEOPLE V COLON, No. 160964; Court of Appeals No. 350850.
PEOPLE V CLIFTON WITHERSPOON, No. 160969; Court of Appeals No.
350503.
PEOPLE V CLIFTON WITHERSPOON, No. 160971; Court of Appeals No.
350670.
PEOPLE V LAHDIR, No. 160977; Court of Appeals No. 345452.
PEOPLE V LEACH, No. 161010; Court of Appeals No. 348608.
PEOPLE V VISNER, Nos. 161029, 161030, and 161031; Court of Appeals
Nos. 347028, 347083, and 347084.
PEOPLE V LUBERDA, No. 161100; Court of Appeals No. 351747.

Superintending Control Denied April 29, 2020:

WILLIAMS V ATTORNEY GRIEVANCE COMMISSION, No. 160690.

CAVANAGH, J., did not participate due to her prior service as a member
of the Attorney Grievance Commission.
VONTZ V ATTORNEY GRIEVANCE COMMISSION, No. 160732.
CAVANAGH, J., did not participate due to her prior service as a member
of the Attorney Grievance Commission.
CULBERTSON V ATTORNEY GRIEVANCE COMMISSION, No. 160904.
CAVANAGH, J., did not participate due to her prior service as a member
of the Attorney Grievance Commission.
KELLEY V ATTORNEY GRIEVANCE COMMISSION, No. 160932.
CAVANAGH, J., did not participate due to her prior service as a member
of the Attorney Grievance Commission.

Reconsideration Denied April 29, 2020:

LOCKARD V MAYCO INTERNATIONAL, LLC, No. 159358; Court of Appeals

No. 341808. Leave to appeal denied at 505 Mich 941.
 ORDERS IN CASES 1045
LEAPHART V STATE OF MICHIGAN, No. 159624; Court of Appeals No.
343136. Leave to appeal denied at 505 Mich 974.
PEOPLE V RAND GOULD, No. 160142; Court of Appeals No. 347625.
Leave to appeal denied at 505 Mich 946.
PEOPLE V ROBERT MARTINEZ, No. 160143; Court of Appeals No. 348399.
Leave to appeal denied at 505 Mich 946.
PEOPLE V HERMAN CHEESE, No. 160144; Court of Appeals No. 347624.
Leave to appeal denied at 505 Mich 976.
PEOPLE V DEMARIO SIMPSON, No. 160221; Court of Appeals No. 349076.
Leave to appeal denied at 505 Mich 947.

Orders Granting Oral Argument in Cases Pending on Application for

Leave to Appeal Entered May 1, 2020:

PEOPLE V ERICK ALLEN, No. 160594; reported below: 330 Mich App 116.
The appellant shall file a supplemental brief within 42 days of the date
of this order addressing: (1) whether this Court’s holding in People v
Idziak, 484 Mich 549 (2009), encompasses parolees who are arrested for
a new offense but are not subject to a parole detainer; if so,
(2) whether that part of Idziak’s holding was correctly decided; and
(3) whether the appellant has established plain error affecting his
substantial rights. In addition to the brief, the appellant shall electroni-
cally file an appendix conforming to MCR 7.312(D)(2). In the brief,
citations to the record must provide the appendix page numbers as
required by MCR 7.312(B)(1). The appellee shall file a supplemental
brief within 21 days of being served with the appellant’s brief. The
appellee shall also electronically file an appendix, or in the alternative,
stipulate to the use of the appendix filed by the appellant. A reply, if any,
must be filed by the appellant within 14 days of being served with the
appellee’s brief. The parties should not submit mere restatements of
their application papers.
The Prosecuting Attorneys Association of Michigan and the Criminal
Defense Attorneys of Michigan are invited to file briefs amicus curiae.
Other persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae.
PEOPLE V CLEOPHAS BROWN, No. 160661; reported below: 330 Mich App
223. The appellant shall file a supplemental brief within 42 days of the
date of this order addressing whether: (1) in a prosecution for carrying
a concealed weapon under MCL 750.227(2), the prosecutor must estab-
lish that the defendant had notice under MCL 28.428 that his concealed
pistol license had been suspended or revoked; and (2) the Court of
Appeals erred in determining that if notice is required, the evidence
demonstrated that the defendant was served with adequate notice that
he could not legally possess a concealed pistol. In addition to the brief,
the appellant shall electronically file an appendix conforming to MCR
7.312(D)(2). In the brief, citations to the record must provide the
1046 505 MICHIGAN REPORTS
appendix page numbers as required by MCR 7.312(B)(1). The appellee
shall file a supplemental brief within 21 days of being served with the
appellant’s brief. The appellee shall also electronically file an appendix,
or in the alternative, stipulate to the use of the appendix filed by the
appellant. A reply, if any, must be filed by the appellant within 14 days
of being served with the appellee’s brief. The parties should not submit
mere restatements of their application papers.
The Prosecuting Attorneys Association of Michigan and the Criminal
Defense Attorneys of Michigan are invited to file briefs amicus curiae.
Other persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae.
PEOPLE V GREGORY WASHINGTON, No. 160707; reported below: 329 Mich
App 604. The appellant shall file a supplemental brief within 42 days of
the date of this order addressing: (1) whether the trial court’s act of
resentencing the defendant while an application for leave to appeal was
pending in this Court constituted a defect in subject-matter jurisdiction;
and (2) if so, whether defects in subject-matter jurisdiction can be
challenged in a successive motion for relief from judgment. Compare
MCR 6.502(G)(2) (only permitting a second or subsequent motion for
relief from judgment if it is based on a retroactive change in the law or
on a claim of new evidence) and In re Ives, 314 Mich 690, 696 (1946)
(“The question of jurisdiction of the subject-matter may be raised at any
time.”). In addition to the brief, the appellant shall electronically file an
appendix conforming to MCR 7.312(D)(2). In the brief, citations to the
record must provide the appendix page numbers as required by MCR
7.312(B)(1). The appellee shall file a supplemental brief within 21 days
of being served with the appellant’s brief. The appellee shall also
electronically file an appendix, or in the alternative, stipulate to the use
of the appendix filed by the appellant. A reply, if any, must be filed by the
appellant within 14 days of being served with the appellee’s brief. The
parties should not submit mere restatements of their application
papers.
The Prosecuting Attorneys Association of Michigan and the Criminal
Defense Attorneys of Michigan are invited to file briefs amicus curiae.
Other persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae.

Leave to Appeal Denied May 1, 2020:

HIGGINS V TRAILL, No. 160193; Court of Appeals No. 343664. On order

of the Court, the application for leave to appeal the July 30, 2019
judgment of the Court of Appeals is considered, and it is denied, there
being no majority in favor of granting leave to appeal or taking other
action.
MARKMAN, ZAHRA, and BERNSTEIN, JJ., would direct oral argument on
the application.
 ORDERS IN CASES 1047
VIVIANO, J., did not participate due to a familial relationship with a
circuit court judge involved in this case.
PEOPLE V VIRGIL SMITH, No. 160351; Court of Appeals No. 349563.
CLEMENT, J. (concurring). I concur in the Court’s denial of leave to
appeal, but I write separately to note that I do so specifically because of
the interlocutory posture of this case. The Court of Appeals denied leave
to appeal because plaintiff failed to show a need for immediate appellate
review, and this Court denies leave because it is not persuaded that the
question presented should now be reviewed. I believe Justice MARKMAN
has raised a number of fair concerns, which I take very seriously. I
concur in denying leave not because I disagree with his concerns, but
rather because I believe the development of a trial court record will
facilitate appellate review of these issues.
MARKMAN, J. (dissenting). I once again dissent in this matter. Defen-
dant, a former state senator, discharged a rifle at his ex-wife’s car and into
the air in her presence, and the prosecutor consequently charged him
with felonious assault, MCL 750.82; domestic violence, MCL 750.81(2);
malicious destruction of personal property (valued at $20,000 or more),
MCL 750.377a(1)(a)(i); and possessing a firearm during the commission of
a felony (felony-firearm), MCL 750.227b. In February 2016, the prosecu-
tor and defendant entered into a plea agreement whereby defendant
would plead guilty to malicious destruction of personal property (valued
at $20,000 or more), serve 10 months in jail, serve five years of probation,
resign his position as a state senator, not “hold elective or appointed office
during full pendency of probation,” and comply with other miscellaneous
terms that are not relevant here.
The trial court accepted the agreement and defendant pleaded guilty.
However, at sentencing, the trial court sua sponte ruled that the
resignation and “bar to office” terms of the plea agreement were
unconstitutional and thus invalid. The prosecutor promptly moved to
vacate the plea, explaining at the motion hearing that “our position is if
the Court could not go along with it then you should allow us the
opportunity to withdraw the plea because that is not what we bargained
for.” The trial court nonetheless refused to allow the prosecutor to
withdraw from the plea agreement and denied the motion. At about the
same time, defendant resigned from the state senate. The prosecutor
sought leave to appeal in the Court of Appeals, challenging both the trial
court’s decision sua sponte to invalidate the two terms of the agreement
and, alternatively, its refusal to vacate the plea. The Court of Appeals
granted leave in August 2016. However, in April 2017, the Court of
Appeals dismissed the appeal, reasoning that “[b]ecause defendant
voluntarily resigned his seat and appears to have no intention of
running for public office during his term of probation, we decline to
address the issues regarding the voiding of the plea agreement as moot.”
People v Smith, unpublished opinion per curiam of the Court of Appeals,
issued April 18, 2017 (Docket No. 332288), p 2. In addition, the Court of
Appeals ruled that vacating the plea despite the absence of these two
terms would be “fundamentally unfair.” Id. at 3.
Within hours of the Court of Appeals’ decision, defendant filed
petitions for a seat on the Detroit City Council (an election that he
1048 505 MICHIGAN REPORTS
ultimately lost in November 2017). The prosecutor sought leave to
appeal in this Court, and we remanded to the Court of Appeals as on
reconsideration granted. People v Smith, 501 Mich 851 (2017). On
remand, the Court of Appeals affirmed the trial court in all respects in
a split decision. People v Smith (On Remand), 321 Mich App 80 (2017),
rev’d in part 502 Mich 624 (2018). Judge RIORDAN in dissent would have
concluded that the challenged terms of the agreement were not uncon-
stitutional and, alternatively, that the trial court erred by refusing to
vacate the plea. Id. at 104-105 (RIORDAN, P.J., dissenting). The prosecutor
then sought leave to appeal in this Court, and we scheduled oral
argument on the application. People v Smith, 501 Mich 852 (2017).
Ultimately, a plurality of this Court adopted the rationale of a decision
of the United States Court of Appeals for the Ninth Circuit concerning
“public policy,” Davies v Grossmont Union High Sch Dist, 930 F2d 1390
(CA 9, 1991)—what I view to be an aberrant decision in support of an
unusually broad exercise of the judicial power—in holding that the
bar-to-office term was unconstitutional. People v Smith, 502 Mich 624,
634-635 (2018) (opinion by VIVIANO, J.). In addition, a majority of this
Court held that the issue concerning the resignation term was moot and
that the trial court had erred in not vacating the plea, and it accordingly
remanded to the trial court for further proceedings. Id. at 628 (opinion
by VIVIANO, J.); id. at 648-649 (CLEMENT, J., concurring). Justice ZAHRA
and myself concurred with the majority only with respect to the
mootness of the resignation term and dissented with respect to the
invalidity of the bar-to-office term. Id. at 659 (MARKMAN, C.J., concurring
in part and dissenting in part).
On remand, the prosecutor offered to accept defendant’s plea to
malicious destruction of personal property (valued at $20,000 or more)
and felonious assault in exchange for the dismissal of the domestic
violence and felony-firearm charges. The plea offer would have also
required a “probationary period” but no additional jail time. Defendant
then filed a motion to dismiss the case, asserting that the prosecutor, by
requiring him to plead guilty to two felonies in the plea offer, was acting
in a “vindictive” manner because he had run for a seat on the Detroit
City Council. The trial court held that defendant established a prima
facie case of actual prosecutorial vindictiveness on the basis of the
following three facts: (1) for a period of time in 2016, the prosecutor
refused to engage in plea bargaining in cases pending before the trial
judge involved in this case; (2) the prosecutor informed the media in the
early stages of this case that her office ordinarily does not dismiss
felony-firearm charges when the firearm is discharged in the course of
the crime but that she supported dismissal of that charge in this case
because of defendant’s mental health issues; and (3) the prosecutor was
upset that the trial court refused to enforce the entirety of the original
plea agreement. The trial court thus ordered an evidentiary hearing, at
which the prosecutor will presumably be required to testify as to the
basis of her plea negotiations in this case. The prosecutor sought leave
to appeal in the Court of Appeals, which the panel denied by a 2-1 vote,
People v Smith, unpublished order of the Court of Appeals, entered
August 15, 2019 (Docket No. 349563), and now seeks leave to appeal in
this Court.
 ORDERS IN CASES 1049
“It is a violation of due process to punish a person for asserting a
protected statutory or constitutional right.” People v Ryan, 451 Mich 30,
35 (1996). “Such punishment is referred to as prosecutorial vindictive-
ness. There are two types of prosecutorial vindictiveness, presumed
vindictiveness and actual vindictiveness.” Id. “Actual vindictiveness will
be found only where objective evidence of an ‘expressed hostility or threat’
suggests that the defendant was deliberately penalized for his exercise of
a procedural, statutory, or constitutional right.” Id., quoting United States
v Gallegos-Curiel, 681 F2d 1164, 1168 (CA 9, 1982). As the United States
Supreme Court has explained, “for an agent of the State to pursue a
course of action whose objective is to penalize a person’s reliance on his
legal rights is ‘patently unconstitutional.’ ” Bordenkircher v Hayes, 434
US 357, 363 (1978), quoting Chaffin v Stynchcombe, 412 US 17, 32 n 20
(1973). “But in the ‘give-and-take’ of plea bargaining, there is no such
element of punishment or retaliation so long as the accused is free to
accept or reject the prosecution’s offer.” Bordenkircher, 434 US at 363.
As an initial matter, it is questionable whether seeking a seat on the
Detroit City Council, a right that is outside of the criminal justice
system, constitutes the type of a “statutory or constitutional right” that
can establish the basis for a claim of prosecutorial vindictiveness. See
Maddox v Elzie, 345 US App DC 58, 67 (2001) (“In the prosecutorial
context, the doctrine precludes action by a prosecutor that is designed to
penalize a defendant for invoking any legally protected right available
to a defendant during a criminal prosecution.”) (emphasis added);
United States v Raymer, 941 F2d 1031, 1041 (CA 10, 1991), quoting
United States v Goodwin, 457 US 368, 384 (1982) (“The question is
whether the federal prosecution was ‘a direct and unjustifiable penalty
for the exercise of a procedural right’ by the defendant.”). But even more
pertinently, the three facts of this case specifically addressed by the trial
court do not justify the extraordinary judicial action of requiring the
prosecutor to justify in open court her rationale for engaging in a
particular course of plea negotiations.
First, the fact that the prosecutor had instituted a “no plea” policy in
the trial judge’s courtroom for a brief period of time in 2016 bears no
logical relationship, one way or the other, to the alleged vindictiveness
against defendant himself. It was the trial judge’s decision sua sponte to
invalidate two terms of the plea agreement, but not to allow the
prosecutor to withdraw from the agreement, that initially led to the
prosecutor’s decision to institute a no-plea policy in that courtroom;
defendant was entirely a bystander and could have felt no reasonable
sense of aggrievement from the no-plea policy. Possibly the prosecutor’s
decision was motivated by animus toward the trial judge, or, at least as
possibly, the prosecutor was genuinely, and perhaps even rightly,
concerned about entering into plea agreements before a judge who
would sua sponte void their terms but not afford the prosecutor relief in
reassessing the agreements.
Second, the fact that the prosecutor informed the news media in the
early stages of this case that notwithstanding her office’s usual position
of retaining felony-firearm charges where factually warranted, she
1050 505 MICHIGAN REPORTS
supported dismissal of the felony-firearm charge here because of defen-
dant’s mental health issues, is equally as irrelevant as the first fact
referenced by the trial court. “Within the limits set by the legislature’s
constitutionally valid definition of chargeable offenses, ‘the conscious
exercise of some selectivity in enforcement is not in itself a federal
constitutional violation’ so long as ‘the selection was [not] deliberately
based upon an unjustifiable standard such as race, religion, or other
arbitrary classification.’ ’’ Bordenkircher, 434 US at 364, quoting Oyler v
Boles, 368 US 448, 456 (1962) (alteration in original). There is nothing
to suggest that the prosecutor here applied such an unjustifiable
standard in declining to immediately dismiss the felony-firearm charge
after this Court’s remand to the trial court in 2018. Indeed, the plea offer
from the prosecutor during the second round of negotiations would itself
have resulted in dismissing the felony-firearm charge, as with the first
round of negotiations, if defendant had accepted the plea offer and
pleaded guilty to malicious destruction of personal property (valued at
$20,000 or more) and felonious assault. The notion that the prosecutor
should be “punished,” or even chastised, in the instant proceedings for
having earlier apprised the public that she was seeking to accommodate
a defendant with mental health issues is highly peculiar, to say the
least.
Third, I have little doubt that the prosecutor was both disappointed
and upset when the trial court sua sponte invalidated part of the
original plea agreement but refused to allow the prosecutor to withdraw
from the agreement. But prosecutors are no strangers to failing to
prevail on issues in trial courts, as well as before appellate courts,
without thereby being compelled to testify in open court concerning how,
and why, they chose to proceed in a matter after having failed to prevail
on some issue. If this “fact,” without more, can justify an evidentiary
hearing on alleged prosecutorial vindictiveness, I discern no reason why
an evidentiary hearing would not arguably be warranted in every case
in which a prosecutor failed to prevail on a significant case or issue in
dispute.
In any event, the relief sought by defendant in his present motion—
outright dismissal of the case—is illogical. Such relief would mean that
he will have been convicted of no criminal offenses where the import of
his argument is merely that he should be able to plead guilty to only one
offense, that to which he was originally allowed to plead guilty, mali-
cious destruction of personal property (valued at $20,000 or more). That
is, defendant argues that because the prosecutor was vindictive in
requiring him to plead guilty to two offenses in the second round of plea
negotiations when he was only required to plead guilty to one offense in
the first round of negotiations, he should now be able to avoid respon-
sibility for any offense. But as with any alleged violation of due process,
the remedy should be tailored to the error. United States v Sarracino,
340 F3d 1148, 1177 (CA 10, 2003) (“[E]ven a showing of actual vindic-
tiveness does not necessarily warrant dismissal of the indictment.”).
Thus, for example, where the prosecutor originally charges the defen-
dant with a misdemeanor offense and then vindictively retaliates
against the defendant for exercising his appellate rights by charging
 ORDERS IN CASES 1051
him with a felony instead, the proper remedy is not complete dismissal
of the case but rather precluding the prosecutor from proceeding with
the felony charge. Blackledge v Perry, 417 US 21, 28-29 (1974) (“We hold,
therefore, that it was not constitutionally permissible for the State to
respond to Perry’s invocation of his statutory right to appeal by bringing
a more serious charge against him prior to the trial de novo.”).
Consequently, it is doubtful that the appropriate relief for defendant,
even where he has prevailed, is to dismiss the case or direct the
prosecutor to offer a plea agreement on identical or similar terms to the
original plea agreement—notwithstanding that the latter agreement is
now entirely devoid of the two terms that were the principal subject of
controversy in the previous round of litigation.
This final observation illustrates at its core the folly of the present
proceeding. The prosecutor originally agreed to allow defendant to plead
guilty to one felony, malicious destruction of personal property (valued
at $20,000 or more), serve 10 months in jail, resign from the state
senate, and not hold public office for a five-year period. Subsequently,
after the prosecutor was unable to receive the benefit of the bar-to-office
term by a divided decision of this Court, she reoffered essentially the
same plea agreement to defendant but replaced the bar-to-office term
with a new, second felony charge, felonious assault. And the trial court
reasons that such a replacement charge constitutes “vindictiveness”—in
other words, that the process by which the prosecutor seeks, as best as
she can, and in light of this Court’s earlier decision, to replicate the
overall public interest she believes was served by the original agreement
is somehow “vindictive.”
Such reasoning is circular and would render the holding of People v
Siebert, 450 Mich 500 (1995), largely meaningless. In Siebert, we held
that “a prosecutor may withdraw from a plea bargain that includes a
sentence agreement when the court intends to impose a sentence lower
than the agreement calls for.” Id. at 504. But under the instant
reasoning of the trial court, if the prosecutor seeks to withdraw from the
agreement after the court has indicated that it will impose a less severe
sentence and revert to the status quo ante as nearly as possible, such
conduct is “vindictive.” Thus, the prosecutor is effectively compelled to
acquiesce in the less severe sentence, one that he or she presumably
views as inadequate or disproportionate in some manner. Yet, as the
United States Court of Appeals for the Fifth Circuit has aptly and
rightly explained, “a prosecutor may, without explanation, refile charges
against the defendant whose bargained-for guilty plea to a lesser charge
has been withdrawn or overturned on appeal, provided that an increase
in the charges is within the limits set by the original indictment.”
Jordan v Epps, 756 F3d 395, 408 (CA 5, 2014).
The trial court here, first, invalidated several terms of a plea
agreement entered into between the prosecutor and defendant, an
invalidation never sought by either party; and, second, ordered the
prosecutor to explain in open court the rationale for her subsequent plea
offer to this defendant. The prosecutor objects that the latter decision is
incompatible with what perhaps constitutes the fundamental authority
of the executive branch of state government. See Const 1963, art 3, § 2;
1052 505 MICHIGAN REPORTS
Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672, 684 (1972)
(“For the judiciary to claim power to control the institution and conduct
of prosecutions would be an intrusion on the power of the executive
branch of government and a violation of the constitutional separation of
powers.”). For the reasons set forth herein, I would not deny leave to
appeal but instead would reverse the trial court’s order for an eviden-
tiary hearing concerning prosecutorial vindictiveness and remand to
that court for further proceedings.
PEOPLE V WILLIAM WILLIAMS, No. 160985; Court of Appeals No. 344212.
GREAT LAKES CAPITAL FUND FOR HOUSING LIMITED PARTNERSHIP XII V
ERWIN COMPANIES, LLC, Nos. 161238 and 161239; Court of Appeals Nos.
349763 and 349931.

Summary Disposition May 6, 2020:

PEOPLE V WILLIAM SMITH, No. 160410; Court of Appeals No. 348914.

Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
remand this case to the Wayne Circuit Court. The circuit court erred
when it held in its December 19, 2018 opinion and order that the
defendant’s claim of ineffective assistance of trial counsel was previ-
ously raised and decided by the Court of Appeals. The defendant raised
a different claim of ineffective assistance of trial counsel on direct
appeal. On remand, the circuit court shall reconsider the defendant’s
claim of ineffective assistance of trial counsel. In all other respects, leave
to appeal is denied, because the defendant has failed to meet the burden
of establishing entitlement to relief under MCR 6.508(D).
PEOPLE V STARNES, No. 160496; Court of Appeals No. 349096. Pursuant
to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the
March 29, 2019 order of the Ingham Circuit Court, and we remand this
case to the circuit court for further proceedings. The defendant’s 2017
motion was improperly recharacterized as a motion for relief from
judgment. The motion for relief from judgment in this case is the
defendant’s first such motion, so he is not subject to the successive-
motion bar of MCR 6.502(G). On remand, pursuant to MCR 6.502(D),
the circuit court shall either return the motion to the defendant or
adjudicate it as his first motion for relief from judgment. The motion to
appoint counsel is denied. We do not retain jurisdiction.

Order Granting Oral Argument in Case Pending on Application for

Leave to Appeal Entered May 6, 2020:

PEOPLE V DARRELL WILDER, No. 160339; Court of Appeals No. 327491.

The appellant shall file a supplemental brief within 42 days of the date
of this order addressing whether the harmless-error test of People v
Lukity, 460 Mich 484 (1999), should be refined or amended in all cases,
see generally People v Parsley, 500 Mich 1033, 1033 (2017) (LARSEN, J.,
concurring), or where the question turns on the evaluation of conflicting
 ORDERS IN CASES 1053
testimony at trial. In addition to the brief, the appellant shall electroni-
cally file an appendix conforming to MCR 7.312(D)(2). In the brief,
citations to the record must provide the appendix page numbers as
required by MCR 7.312(B)(1). The appellee shall file a supplemental
brief within 21 days of being served with the appellant’s brief. The
appellee shall also electronically file an appendix, or in the alternative,
stipulate to the use of the appendix filed by the appellant. A reply, if any,
must be filed by the appellant within 14 days of being served with the
appellee’s brief. The parties should not submit mere restatements of
their application papers.
The Prosecuting Attorneys Association of Michigan and the Criminal
Defense Attorneys of Michigan are invited to file briefs amicus curiae.
Other persons or groups interested in the determination of the issue
presented in this case may move the Court for permission to file briefs
amicus curiae.

Leave to Appeal Denied May 6, 2020:

PEOPLE V ODOM, No. 159779; reported below: 327 Mich App 297.
PEOPLE V KYLE JONES, No. 160029; Court of Appeals No. 339556. On
order of the Court, the application for leave to appeal the June 6, 2019
judgment of the Court of Appeals is considered, and it is denied, because
we are not persuaded that the questions presented should be reviewed by
this Court. This order is without prejudice to the defendant’s ability to
seek relief from judgment pursuant to MCR 6.500 et seq. based on any
claim relating to the trial court’s prohibition of cross-examination of the
victim, and any examination of the defendant’s stepson, regarding the
children’s alleged prior sexual conduct. The Court of Appeals deemed this
issue to be waived; therefore, it should not be considered to have been
“decided against the defendant” under the meaning of MCR 6.508(D)(2).
PEOPLE V NICHOL, No. 160585; Court of Appeals No. 343738.

Summary Disposition May 8, 2020:

PEOPLE V KATZMAN, No. 160596; reported below: 330 Mich App 128.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
vacate that part of the judgment of the Court of Appeals stating that the
United States and Michigan Constitutions are “coextensive” with regard
to protection against unreasonable searches and seizures. See People v
Slaughter, 489 Mich 302, 311 (2011) (“This Court has ruled that the
Michigan Constitution is to be construed to provide the same protection
as that secured by the Fourth Amendment, absent compelling reason to
impose a different interpretation.”) (internal quotation marks and cita-
tion omitted; emphasis added); see also Sitz v Dep’t of State Police, 443
Mich 744 (1993). In all other respects, leave to appeal is denied, because
we are not persuaded that the question presented should be reviewed by
this Court.
1054 505 MICHIGAN REPORTS
PEOPLE V CHANDLER, No. 161265; Court of Appeals No. 353445.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
vacate the April 14, 2020 order of the Oakland Circuit Court that denied
the defendant’s emergency motion to modify bail. The trial court abused
its discretion by failing to give adequate consideration to Administrative
Order No. 2020-1 (issued March 15, 2020), which directs courts to
consider the public health factors arising out of the present public
health emergency to mitigate the spread of COVID-19. The record does
not support the trial court’s conclusory determination that the defen-
dant is likely to fail to appear for future proceedings; nor does it
establish that he poses a danger to the public if granted pretrial release.
We remand this case to the Oakland Circuit Court for further proceed-
ings not inconsistent with this order. We do not retain jurisdiction.
CAVANAGH, J. (concurring). I concur in the Court’s order vacating the
trial court’s order and reversing the Court of Appeals’ judgment. I agree
with Justice MARKMAN that under Administrative Order 2020-1, a trial
court should balance existing legal factors with public health factors
arising out of the present state of emergency in making pretrial
detention decisions. Here, the trial court abused its discretion in
balancing those factors. Defendant filed emergency motions to reduce
his bail, citing reports that numerous inmates and corrections officers at
the Oakland County Jail had tested positive for COVID-19 and empha-
sizing his particular susceptibility to COVID-19 due to his age and a
seizure disorder (noting that he had suffered a seizure in the jail in
February of 2020). Counsel for defendant informed the trial court that
he could not obtain medical documentation of defendant’s condition
because he could not visit defendant in jail to obtain the necessary
releases, and he suggested that the trial court question defendant
directly about his condition. The trial court denied the motion without
examining defendant. The trial court concluded that defendant was a
flight risk, despite the fact that defendant had no history of absconding
on bond or failing to appear for court, and based only on defendant’s
presumed incentive to avoid punishment—an incentive present in
virtually every case. When these considerations are balanced with
defendant’s willingness and ability to post a reasonable personal-
recognizance bond and his agreement to wear a GPS tether, I believe the
trial court abused its discretion in light of Administrative Order 2020-1.
MARKMAN, J. (dissenting). I respectfully dissent from the present
order vacating the trial court’s order and reversing the Court of Appeals’
judgment. Because I do not believe the trial court here abused its
discretion, or that the Court of Appeals erred in affirming the trial court,
I would deny leave to appeal.
Defendant has been charged as a fourth-offense habitual offender
with being a felon in possession of a firearm, possessing a firearm during
the commission of a felony, possessing a loaded firearm in a motor
vehicle, and second-offense driving while his license was suspended.
Defendant has been in the Oakland County Jail since January 3, 2020,
unable to post the $25,000 cash or surety bond set by the trial court. The
trial court has since denied defendant’s emergency motion to reduce
bail, finding “the issue of his potential flight [to be] significant” because
 ORDERS IN CASES 1055
“he knows that he is facing a mandatory two years if he’s convicted.” The
court further determined that, given his prior convictions, defendant
failed to persuade the court that he would not pose a threat to public
safety if released. In a split decision, the Court of Appeals denied
defendant’s emergency motion to review bail.
The majority concludes that the “trial court abused its discretion by
failing to give adequate consideration to Administrative Order No.
2020-1 (issued March 15, 2020),” which directs courts to “take into
careful consideration public health factors arising out of the present
state of emergency . . . in making pretrial release decisions[.]” I dis-
agree. The trial court here did specifically consider such factors and
correctly observed that defendant did not present any evidence that he
is particularly vulnerable to COVID-19. Rather, defendant summarily
asserts that he suffers from seizures, but he has presented neither
evidence in support of this assertion nor evidence explaining why any
such seizures would render him more vulnerable to COVID-19.
The majority also concludes that the “record does not support the
trial court’s conclusory determination that the defendant is likely to fail
to appear for future proceedings; nor does it establish that he poses a
danger to the public if granted pretrial release.” Again, I disagree.
Defendant’s prior criminal history consists of stalking, fleeing and
eluding, driving while under the influence of alcohol, and three counts of
larceny in a building. His current charges involve him, while on
probation, being in the possession of a loaded semi-automatic rifle while
driving with a suspended license. Given both this habitual criminal
history and the gravity of the present charges, I cannot agree that the
trial court abused its discretion in finding either that defendant poses a
danger to the community or that he poses a flight risk. It is not the
purpose of Administrative Order No. 2020-1 to preclude the consider-
ation of factors already long extant in our law to maintain public safety,
but to require that consideration also be given to factors that are
relevant to the present public health emergency. Such an assessment
has been undertaken by the trial court and, in my judgment, it has not
abused its discretion in so doing.
Where Administrative Order 2020-1 specifies that, “[d]uring the
state of emergency, trial courts should be mindful that taking reason-
able steps to protect the public is more important than strict adherence
to normal operating procedures or time guidelines standards,” I do not
understand the order to mean: (a) that trial courts are precluded in their
pretrial release decisions from taking into account existing legal factors
(e.g., risk to public safety and risk of flight) that are designed to “protect
the public”; (b) that it constitutes an “abuse of discretion” by the trial
court to balance existing factors, required to be considered under law,
with newly added factors, “urged” to be considered under an adminis-
trative order; or (c) that “protection of the public” does not reasonably
encompass the safeguarding of persons, not only who are incarcerated,
but also persons who are not incarcerated (i.e., witnesses and members
of the public) from the criminal conduct of persons being considered for
pretrial release.
For these reasons, I would deny leave to appeal.
ZAHRA, J., joins the statement of MARKMAN, J.
1056 505 MICHIGAN REPORTS
Orders Granting Oral Argument in Cases Pending on Application for
Leave to Appeal Entered May 8, 2020:

SAUGATUCK DUNES COASTAL ALLIANCE V SAUGATUCK TOWNSHIP, Nos.

160358 and 160359; Court of Appeals Nos. 342588 and 346677. The
appellant shall file a supplemental brief within 42 days of the date of
this order addressing: (1) whether the “party aggrieved” standard of
MCL 125.3605 requires a party to show some special damages not
common to other property owners similarly situated, see Olsen v Jude &
Reed, LLC, 325 Mich App 170 (2018); (2) whether the meaning of “person
aggrieved” in MCL 125.3604(1) differs from that of “party aggrieved” in
MCL 125.3605, and if so what standard applies; and (3) whether the
Court of Appeals erred in affirming the Allegan Circuit Court’s dismissal
of appellant’s appeals from the decisions of the Saugatuck Township
Zoning Board of Appeals. In addition to the brief, the appellant shall
electronically file an appendix conforming to MCR 7.312(D)(2). In the
brief, citations to the record must provide the appendix page numbers as
required by MCR 7.312(B)(1). The appellees shall file supplemental
briefs within 21 days of being served with the appellant’s brief. The
appellees shall also electronically file an appendix, or in the alternative,
stipulate to the use of the appendix filed by the appellant. A reply, if any,
must be filed by the appellant within 14 days of being served with the
latter of the appellees’ briefs. The parties should not submit mere
restatements of their application papers.
The Environmental Law & Policy Center and National Trust for
Historic Preservation in the United States are invited to file a brief
amicus curiae. Other persons or groups interested in the determination
of the issues presented in this case may move the Court for permission
to file briefs amicus curiae.
DEPARTMENT OF TALENT & ECONOMIC DEVELOPMENT/UNEMPLOYMENT INSUR-
ANCE AGENCY V GREAT OAKS COUNTRY CLUB, INC, No. 160638; reported
below: 329 Mich App 581. The appellant shall file a supplemental brief
within 42 days of the date of this order addressing whether
the Court of Appeals correctly determined that it could not satisfy
MCL 421.13m(2)(a)(i)(A) by reporting no employees or no payroll for the
eight quarters before January 1, 2014. In addition to the brief, the
appellant shall electronically file an appendix conforming to
MCR 7.312(D)(2). In the brief, citations to the record must provide the
appendix page numbers as required by MCR 7.312(B)(1). The appellee
shall file a supplemental brief within 21 days of being served with the
appellant’s brief. The appellee shall also electronically file an appendix,
or in the alternative, stipulate to the use of the appendix filed by the
appellant. A reply, if any, must be filed by the appellant within 14 days
of being served with the appellee’s brief. The parties should not submit
mere restatements of their application papers.
The Labor Law and Business Law Sections of the State Bar of
Michigan, the Michigan Chamber of Commerce, the Employers Associa-
tion of West Michigan, and the Small Business Association of Michigan
are invited to file briefs amicus curiae. Other persons or groups
 ORDERS IN CASES 1057
interested in the determination of the issue presented in this case may
move the Court for permission to file briefs amicus curiae.

Leave to Appeal Denied May 8, 2020:

PEOPLE V JUAN WALKER, No. 159757; reported below: 328 Mich App
429.
MARKMAN, J. (dissenting). In Lafler v Cooper, 566 US 156, 164 (2012),
the United States Supreme Court held for the first time that where a
defendant rejects a plea offer from the prosecutor as a result of the
“ineffective advice” of defense counsel and the defendant is later
convicted at trial, he or she may be entitled to relief under Strickland v
Washington, 466 US 668 (1984). Here, the Court of Appeals concluded
“that Lafler did not create a new rule [of constitutional law] and that it
therefore applies retroactively to this case.” People v Walker (On
Remand), 328 Mich App 429, 449 (2019). While I have no present
position as to whether the Court of Appeals erred in this regard, for the
following two reasons, I would nonetheless grant leave to appeal to
consider the issue of Lafler retroactivity.
First, there is a difference of contemporary judicial opinion concern-
ing the Court of Appeals’ conclusion that “[t]he Lafler opinion did not
create a new rule—it merely determined how the Strickland test applied
to the specific factual context concerning plea bargaining.” Id. at 448.
While it is true that the prevailing conclusion among the federal
appellate courts is that Lafler applies retroactively because it was
simply an “application” of Strickland and thus did not create a new rule,
see, e.g., Gallagher v United States, 711 F3d 315, 315 (CA 2, 2013)
(“Neither Lafler nor [Missouri v Frye, 566 US 134 (2012)] announced ‘a
new rule of constitutional law’: Both are applications of Strickland”), the
Utah Supreme Court concluded to the contrary that Lafler “announced
a new rule” because the “holding of Lafler—that prejudice is possible
even if a defendant has received a fair trial—decides an issue neither
contemplated nor addressed by Strickland.” Winward v Utah, 355 P3d
1022, 1023, 1028 (Utah, 2015). See also Marceau, Embracing a New Era
of Ineffective Assistance of Counsel, 14 U Pa J Const L 1161, 1163 (2012)
(contending that Lafler “reflect[s] a seismic shift in Sixth Amendment
jurisprudence”). In light of this difference of opinion, I believe that
review of the Court of Appeals’ decision is warranted, even if this Court
ultimately affirms that determination.
Second, as a substantive proposition, applying Lafler retroactively
will result in the unavailability of a considerable amount of testimony
and recollections from defense counsel of plea discussions occurring
many years earlier, precisely because there is disagreement whether
Strickland was viewed as foreshadowing the rule in Lafler and, as a
result, relatively few attorneys prior to Lafler may have anticipated that
their recollections in this regard might be of future constitutional
consequence. In the instant case, for example, defendant was found
guilty at his 2001 trial of first-degree premeditated murder,
MCL 750.316(1)(a), and possession of a firearm during the commission of
a felony (felony-firearm), MCL 750.227b(1). He now asserts that defense
1058 505 MICHIGAN REPORTS
counsel never conveyed a plea offer to him prior to trial in which he
would have been allowed to plead guilty to second-degree murder,
MCL 750.317, and felony-firearm. And at the 2015 evidentiary hearing
that followed, defense counsel testified—not unreasonably, in my
judgment—that he had no memory as to whether he had conveyed the
plea offer 14 years earlier. While this Court at an earlier stage of this
case concluded that the trial court did not clearly err “in finding a
reasonable probability that the defendant would have accepted the plea
offer,” People v Walker, 503 Mich 908, 908 (2018), it strikes me as a
questionable outcome that a convicted person would obtain relief
(restoration of the original plea offer) despite the absence—an alto-
gether predictable absence—of a critical element of the record, defense
counsel’s recall after 14 years as to whether, and when, he or she
presented a plea offer to a defendant.
It seems likely that more such cases will come before this Court, in
which memories will have been long-lost; in which attorney records will
have been long-discarded; in which attorneys will have passed; in which
conversations once seen as mundane will have been transformed into
critical determinants of which long-settled convictions must be revised
and rewritten; and in which relevant evidence will largely be derived
from the unsubstantiated recollections of long-incarcerated criminal
offenders. For these reasons, I would grant leave to appeal to address
whether the Court of Appeals properly concluded that Lafler applies
retroactively. In my judgment, this is a jurisprudentially significant
issue with far-reaching constitutional and practical implications and it
deserves our careful review.
ZAHRA, J., joins the statement of MARKMAN, J.
PEOPLE V FAUBERT, No. 161255; Court of Appeals No. 350706.
PEOPLE V MICHAEL JACKSON, No. 161264; Court of Appeals No. 345912.

Summary Disposition May 13, 2020:

PEOPLE V DAVID BARBER, No. 161277; Court of Appeals No. 352361. On

order of the Court, the motion for immediate consideration is granted.
The application for leave to appeal the April 28, 2020 order of the Court
of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of
granting leave to appeal, we vacate the April 17, 2020 order of the
Antrim Circuit Court denying the defendant’s emergency motion for
bond pending appeal. It is undisputed that MCL 770.9a(2) applies to the
defendant’s motion. In addition, under Administrative Order No. 2020-1
(issued March 15, 2020), “[d]uring the state of emergency, trial courts
should be mindful that taking reasonable steps to protect the public is
more important than strict adherence to normal operating proce-
dures . . . .” The trial court abused its discretion in its consideration of
the existing statutory factors along with the public health factors
arising out of the present state of emergency. The trial court did not
address the first factor under MCL 770.9a(2)(a), and it is not obvious
from the record that the defendant poses a danger to others. While the
 ORDERS IN CASES 1059
trial court considered MCL 770.9a(2)(b), its conclusory determination
that the defendant’s appeal does not raise a substantial question of law
or fact failed to consider the timing of the defendant’s emergency motion
and that the plain language of the statute does not require a showing of
success on appeal. Finally, the trial court clearly erred in its factual
determinations regarding the public health emergency. Contrary to the
trial court’s statements, there are many indications that incarcerated
individuals are at a greater risk of COVID-19 infection. See, e.g.,
Executive Order 2020-62 (issued April 26, 2020) (directing the imple-
mentation of COVID-19 protocols to “provide essential protections to
vulnerable Michiganders who work at or are incarcerated in prisons,
county jails, local lockups, and juvenile detention centers across the
state”). Moreover, the trial court clearly erred by failing to adequately
consider the defendant’s documented health conditions. Accordingly, we
remand this case to the Antrim Circuit Court for reconsideration of the
defendant’s motion in light of this order and the defendant’s current
medical condition. We do not retain jurisdiction.

Summary Disposition May 15, 2020:

PEOPLE V SIEGEL, No. 160153; Court of Appeals No. 348111. Pursuant

to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this
case to the Court of Appeals for consideration of: (1) whether the
defendant knew or had reason to know the video he posted on Facebook
“could cause 2 or more separate noncontinuous acts of ‘unconsented
contact’ with the victim,” see MCL 750.411s(1)(a), see also
MCL 750.411s(8)(j) (defining “unconsented contact”); Buchanan v Crisler,
323 Mich App 163, 179-181 (2018) (providing examples of conduct
typically supporting cyberstalking convictions under MCL 750.411s); and
(2) if the defendant did not know or have reason to know that posting the
video could cause two or more separate “unconsented contacts” with the
victim, whether the defendant can obtain relief under MCR 6.500 et seq.
In all other respects, leave to appeal is denied, because we are not
persuaded that the remaining questions presented should be reviewed by
this Court.

Leave to Appeal Denied May 15, 2020:

PEOPLE V MCFARLANE, No. 158259; reported below: 325 Mich App 507.
On March 4, 2020, the Court heard oral argument on the application for
leave to appeal the June 19, 2018 judgment of the Court of Appeals. On
order of the Court, the application is again considered, and it is denied,
because we are not persuaded that the questions presented should be
reviewed by this Court.
MARKMAN, J. (concurring). The Court of Appeals concluded that the
trial court plainly erred when, in a trial involving alleged child abuse, it
allowed the prosecutor’s expert witness to testify regarding the diagno-
sis of “abusive head trauma”—a medical diagnosis accepted by the
American Academy of Pediatrics—and “definite pediatric physical
1060 505 MICHIGAN REPORTS
abuse,” a term the expert used interchangeably with “abusive head
trauma.” People v McFarlane, 325 Mich App 507, 517, 520 (2018). In the
judgment of the Court of Appeals, this diagnosis “[went] too far” by
“implicat[ing] the defendant’s intent or knowledge when performing the
act that caused the head trauma.” Id. at 523. That said, the Court of
Appeals affirmed defendant’s conviction because the error did not affect
his substantial rights. Id. at 526-527. While I concur with this Court’s
order denying leave to appeal because the Court of Appeals, in my
judgment, reached the correct result, I write separately to express why
there was no “error” in the first place concerning the admission of the
expert’s testimony.
Recently, this Court explained that “an examining physician, if
qualified by experience and training relative to treatment of sexual
assault complainants, can opine with respect to whether a complainant
ha[s] been sexually assaulted when the opinion is based on physical
findings and the complainant’s medical history.” People v Thorpe, 504
Mich 230, 255 (2019), citing People v Smith, 425 Mich 98, 110-112 (1986)
(emphasis omitted). In People v Harbison, which was decided as a
companion case to Thorpe, the prosecutor’s expert diagnosed the com-
plainant with “ ‘probable pediatric sexual abuse.’ ’’ Thorpe, 425 Mich at
235. We held that this diagnosis was inadmissible at trial because it was
not based on physical findings, but rather on “what the victim . . . told
the physician.” Id. at 261-262 (quotation marks and citation omitted).
Thus, in Harbison, the trial court plainly erred by admitting the
diagnosis “because such testimony vouches for the complainant’s verac-
ity and improperly interferes with the role of the jury.” Id. at 235.
However, what was pointedly not asserted was that mere reference to a
medical condition described as being the product of “abuse” “invades the
province of the jury.”
In the instant case, unlike in Harbison, the expert’s diagnosis of
“abusive head trauma,” or “definite pediatric physical abuse,” was in
accord with Harbison because she based her findings entirely on a
personal physical examination of the infant, as well as the infant’s full
medical history. Specifically, she testified that she had conducted a
thorough physical examination; reviewed the medical history, including
X-rays, CT scans, MRIs, and lab reports; and had ordered further
testing. After consideration of all the clinical facts, the expert provided
what is widely accepted within the medical community to constitute a
proper and legitimate medical diagnosis. She did not vouch for the
veracity of the infant victim, she did not state or otherwise suggest who
specifically caused the injuries, and she acknowledged that she could not
opine as to precisely how the victim sustained her injuries. And as a
result, the expert did not pass judgment on defendant’s guilt or
otherwise invade the province of the jury in any way similar to the
expert in Harbison. Thus, I do not believe the trial court “plainly erred,”
or erred at all, by allowing the expert to testify concerning the diagnosis
of medical harm suffered by the victim.
The Court’s denial of leave is ambiguous, and therein lies the
problem. If it is the majority’s intention to adopt the Court of Appeals’
analysis that the trial court erred in some manner by permitting the
 ORDERS IN CASES 1061
expert testimony, it might have been more prudent to have clearly
stated so; in my judgment, the analysis of the Court of Appeals has no
provenance in either Harbison or any other decision of this Court.
However, if it is the majority’s intention to conclude only that the Court
of Appeals did not err by finding that the “substantial rights” of the
defendant were unaffected by the expert’s testimony, whether that
testimony was proper or not, I again question whether it would have
been more prudent to have stated this intention clearly, for the Court of
Appeals’ alteration of the law in a published opinion is of consequence
for the prosecution of child abuse and “battered infant” cases. In
agreement with the Prosecuting Attorneys Association of Michigan, I
believe the Court of Appeals has introduced confusion into the realm of
abusive head trauma cases by imposing upon expert witnesses seeking
to testify in support of this diagnosis the obligation either to obscure a
medically accurate description of the victim’s condition or to run afoul of
the standard of the Court of Appeals.
ZAHRA, J., joins the statement of MARKMAN, J.
CAVANAGH, J. (concurring). I agree with the Court of Appeals that
expert testimony was erroneously admitted in this case, that the error
was plain, and that the error did not affect the outcome of the trial.
People v McFarlane, 325 Mich App 507, 518-527 (2018). I write sepa-
rately to explain why the Court of Appeals decision, while not controlled
by our decision in the companion cases of People v Thorpe and People v
Harbison, 504 Mich 230 (2019), is nevertheless consistent with that
decision and why this Court should deny leave rather than issue an
opinion affirming the Court of Appeals.
The trial court in this case erred by allowing a prosecution expert to
opine to the jury that the complainant had suffered “abusive head
trauma” and “definite pediatric physical abuse.” In People v Smith, 425
Mich 98, 115 (1986), we held that a physician could testify as to the
results of a physical examination of a complainant in a sexual assault
case, but that any opinion must be “based upon a proper factual
foundation.” That foundation was lacking in Smith because the expert’s
“opinion that the complainant had been sexually assaulted was based,
not on any findings within the realm of his medical capabilities or
expertise as an obstetrician/gynecologist, but, rather, on the emotional
state of, and the history given by, the complainant.” Id. at 112. In
Harbison, Thorpe’s companion case, we held that “an examining physi-
cian, if qualified by experience and training relative to treatment of
sexual assault complainants, can opine with respect to whether a
complainant ha[s] been sexually assaulted when the opinion is based on
physical findings and the complainant’s medical history.” Thorpe, 504
Mich at 255. In both Smith and Harbison, physicians testifying as
expert witnesses had opined on whether the complainant had been
sexually assaulted based on the physician’s opinions of the complain-
ant’s veracity, rather than physical evidence, which amounted to im-
proper vouching for the complainant. Smith, 425 Mich at 112-113;
Thorpe, 504 Mich at 262-263.
I agree with the Court of Appeals that, at least under Smith and
Harbison, a physician may opine on whether physical injuries are the
1062 505 MICHIGAN REPORTS
result of human agency as long as that opinion is grounded in the
physical findings of the examination.1 But the terms “abusive head
trauma” and “definite pediatric physical abuse” carry connotations
greater than mere human agency. As the Court of Appeals explained:

The ordinary understanding of the term “abuse”—as opposed

to neglect or carelessness—implies a level of willfulness and
moral culpability that implicates the defendant’s intent or knowl-
edge when performing the act that caused the head trauma.
[McFarlane, 325 Mich App at 523.]
More than merely providing an opinion from which the jury could infer
that the defendant possessed the requisite intent, the expert explicitly
connected the terms to the defendant’s state of mind:
She repeatedly told the jury that KM’s injuries were “caused by
definite pediatric physical abuse,” and she stated that “we know
that abusive head trauma” causes these injuries because people
confess to hospital staff and investigators or other family members
after inflicting the injuries. She also agreed that KM had suffered
previous abuse even though she was only nine weeks old. She
further told the prosecutor that she was correct when the prosecu-
tor noted that Brown looked at the totality of the circumstances
before concluding that this case involved “child abuse.” [Id. at 524.]

The testimony as a whole went beyond the “proper factual founda-

tion” required by Smith and was not based solely on the “physical
findings” as required by Harbison.
Our decision in Harbison does not broadly sanction, without limita-
tion, all expert testimony that a victim was abused as long as the
expert’s opinion is based on physical findings and the complainant’s
medical history. The question we decided in Harbison was whether the
expert improperly vouched for a witness. The question the Court of
Appeals decided in this case was whether the diagnostic labels “abusive
head trauma” and “definite pediatric physical abuse” invade the prov-
ince of the jury. McFarlane, 325 Mich App at 523. The Court of Appeals
was correct that these diagnoses imply a level of willfulness and
culpability that the jury alone is tasked to determine. Id. While the
Court of Appeals explained that an expert opinion that trauma was
inflicted or not accidental would be permissible if based on objective
medical evidence, the challenged terminology “goes too far.” Id.
The terminology at issue here has the potential to confuse medical
diagnosis with legal determination and is more prejudicial than proba-
tive in violation of MRE 403. The fact that the medical community has
decided to use certain terminology for a diagnosis does not relieve the
trial court of its obligation to ensure that overly prejudicial testimony is
not admitted. Even the Prosecuting Attorneys Association of Michigan

1
Any such opinion would of course be subject to challenge under
MRE 702 and Daubert v Merrell Dow Pharm, Inc, 509 US 579 (1993).
 ORDERS IN CASES 1063
admits that this terminology presents a risk of prejudice and juror
confusion, offering a proposed jury instruction to lessen this risk. In this
child abuse trial, where the diagnoses at issue suggested that the expert
could and did determine that the defendant acted knowingly or inten-
tionally and was criminally responsible for child abuse, the expert’s
testimony was admitted in error.
Further, I agree with the Court of Appeals that the error here was
plain. People v Carines, 460 Mich 750, 763 (1999). As we said in
Harbison, “[o]ur decision in Smith was unanimous and has never been
called into question. Smith provides a very straightforward bright-line
test that trial courts can readily observe.” Thorpe, 504 Mich at 262. But
I also agree with the Court of Appeals that the error did not “affect[] the
outcome of the lower court proceedings,” Carines, 460 Mich at 763, for
the reasons the court discussed, McFarlane, 325 Mich App at 525-527.
I appreciate Justice MARKMAN’s concern that our resolution of this
case could create ambiguity. If the Court of Appeals had erred on its
substantive determination as to the admissibility of the expert testi-
mony, I agree that this Court’s role would have been to clarify the state
of the law. But, as explained earlier, I believe the Court of Appeals
opinion is correct. Because the opinion below is published, it has
precedential effect. MCR 7.215(C)(2). Consequently, I do not see an
ambiguity that needs to be clarified.
MCCORMACK, C.J., joins the statement of CAVANAGH, J.
LINGENFELTER V FARM BUREAU GENERAL INSURANCE COMPANY, No. 159878;
Court of Appeals No. 343292.
CAVANAGH, J. (dissenting). I respectfully dissent from this Court’s
order denying plaintiff’s application for leave to appeal.
On May 6, 2016, plaintiff was riding in the front passenger seat of
her fiancé’s vehicle. Defendant ran a red light and struck the vehicle on
the front passenger side, causing significant damage to the vehicle and
deploying its airbags. There is no dispute that defendant caused the
accident. Plaintiff, a retiree in her mid-70s, was taken by ambulance to
the hospital where she was summarily discharged after CT scans and
x-rays did not show any fractures or bleeding. However, plaintiff
contends that the accident caused injuries to her right shoulder, neck,
and back, as well as headaches and radiating pain.
Plaintiff filed a claim for first-party personal protection insurance
benefits with Farm Bureau Insurance Company and a third-party
negligence claim against defendant. At issue in this appeal is only
plaintiff’s third-party negligence claim. The trial court granted defen-
dant summary disposition pursuant to MCR 2.116(C)(10), finding that
plaintiff did not sustain an objectively manifested impairment that
affected her general ability to lead her normal life. Plaintiff appealed,
and the Court of Appeals majority affirmed over one judge’s dissent.
A motion under MCR 2.116(C)(10) is properly granted where there is
no genuine issue of material fact. El-Khalil v Oakwood Healthcare, Inc,
504 Mich 152, 160 (2019). “A genuine issue of material fact exists when
the record leaves open an issue upon which reasonable minds might
differ.” Id. (quotation marks and citation omitted). The evidence must be
1064 505 MICHIGAN REPORTS
viewed in a light most favorable to the nonmoving party. Id. This Court
reviews a trial court’s decision on a motion for summary disposition de
novo. Id. at 159.
Michigan’s no-fault act, MCL 500.3101 et seq., limits a defendant’s
tort liability for noneconomic damages resulting from a motor vehicle
accident except where the “injured person has suffered death, serious
impairment of body function, or permanent serious disfigurement.”
MCL 500.3135(1). Plaintiff alleges that as a result of the accident caused
by defendant she has suffered serious impairment of body function and,
therefore, is entitled to recover noneconomic damages. At the relevant
times in this case, the no-fault act defined “serious impairment of body
function” as an (1) “objectively manifested impairment,” (2) “of an
important body function,” (3) “that affects the person’s general ability to
lead his or her normal life.” MCL 500.3135(5) as amended by 2012 PA
158; see also McCormick v Carrier, 487 Mich 180, 195 (2010).1
In this case, the trial court concluded that there was no genuine issue
of material fact concerning the first and third prong of the “serious
impairment of a body function” definition, and the Court of Appeals
majority agreed. The sticking point seemed to be that before the
accident plaintiff had an extensive history of medical problems. Notably,
however, the aggravation of a preexisting condition can constitute a
compensable injury under the no-fault act. Fisher v Blankenship, 286
Mich App 54, 63 (2009). In my opinion, preexisting conditions or not,
viewed in a light most favorable to plaintiff, there was a question of fact
concerning whether plaintiff suffered an objectively manifested impair-
ment that affected her ability to lead her normal life.
As to the first prong, an “objectively manifested” impairment is one
that is “evidenced by actual symptoms or conditions that someone other
than the injured person would observe or perceive as impairing a body
function.” McCormick, 487 Mich at 196. In essence, for a plaintiff to make
this showing, he or she must present evidence establishing a physical
basis for subjective complaints of pain. Id. at 198. Such a showing will
generally, but not always, require medical documentation. Id.
Plaintiff did produce medical documentation of an objectively mani-
fested impairment. This included an “Attending Physician’s Report”
authored by Dr. Rodney Gilreath, diagnosing plaintiff with traumatic
injury to multiple areas, including her back and extremities.2 The report

1
MCL 500.3135(5) has recently been amended to expressly incorpo-
rate McCormick’s interpretation of all three components of this defini-
tion. See 2019 PAs 21 and 22. That amendment went into effect on
June 11, 2019, after the lower courts rendered their decisions. Accord-
ingly, McCormick is the controlling authority in this case rather than
the current version of MCL 500.3135(5).
2
The Court of Appeals majority viewed this evidence as suspect,
stating that it “contradicted” Dr. Gilreath’s prior, postaccident diagnosis
of plaintiff’s back pain as “chronic.” Lingenfelter v Farm Bureau Gen Ins
Co, unpublished opinion of the Court of Appeals, issued May 23, 2019
 ORDERS IN CASES 1065
indicates that the injuries were a result of the accident. It acknowledges
plaintiff’s past surgery, but indicates an increase in pain since the
accident. Additionally, plaintiff presented the trial court with various
imaging studies, indicating that she has objectively manifested medical
conditions. While defendant provided evidence suggesting that plain-
tiff’s injuries existed prior to the accident, “[a] trial court may not weigh
evidence when ruling on a summary disposition motion . . . .” Bank of
America, NA v Fidelity Nat’l Title Ins Co, 316 Mich App 480, 512 (2016).
I would conclude that plaintiff’s medical documentation was sufficient to
create a question of material fact.
In regard to the third prong, an impairment “affects a person’s ability
to lead her normal life” if it has “an influence on some of the person’s
capacity to live in his or her normal manner of living.” McCormick, 487
Mich at 202. This is a subjective inquiry that is person- and fact-specific
and requires a comparison of the preincident and postincident life of the
plaintiff. Id. The plaintiff does not have to show that he or she has
actually ceased a preincident activity or lifestyle element, but must only
show that his or her general ability to do so was affected. Id. Moreover,
it is the person’s ability to lead his or her normal life that is at the center
of the inquiry, not that the actual manner of life has been affected. Id.
Finally, there is no “express temporal requirement as to how long an
impairment must last” after the accident. Id. at 203.
Similar to my conclusion on the first prong, I believe that the evidence
presented by plaintiff also establishes a question of fact regarding
whether any alleged impairment affected plaintiff’s ability to lead her
normal life. For example, plaintiff testified that before the accident she
could walk two miles per day, but now she can only walk two blocks. She
said that she can no longer perform housework. She stated that she has
trouble sleeping because certain positions are uncomfortable as a result of
her injuries. Some may view these limitations as a de minimis change in
plaintiff’s normal life, but given that the inquiry is subjective and centers
on plaintiff’s ability to live her normal life, a retiree in her late 70s with
preexisting health problems might not.3 In my opinion, this was another
question of fact properly left for the jury to resolve.
All that being said, I believe that plaintiff has pleaded sufficient facts
to avoid summary disposition in regard to the three-prong test of

(Docket No. 343292), p 5. In other words, the majority seems to have

concluded that Dr. Gilreath was not credible; however, “[t]he court is not
permitted to assess credibility” when deciding a motion for summary
disposition. Skinner v Square D Co, 445 Mich 153, 161 (1994).
3
I also note that the panel majority cited McDanield v Hemker, 268
Mich App 269, 282 (2005), for the proposition that “[s]elf-imposed
restrictions based on real or perceived pain do not establish the extent
of any residual impairment.” Lingenfelter, unpub op at 3. I find this
proposition highly suspect in light of McCormick’s discussion of whether
an impairment affects the person’s general ability to lead his or her
normal life. McCormick, 487 Mich at 200-203.
1066 505 MICHIGAN REPORTS
McCormick, and I would therefore vacate the Court of Appeals’ judg-
ment and remand to the trial court to consider whether defendant was
both the factual and legal cause of plaintiff’s injuries. See Ray v Swager,
501 Mich 52, 64 (2017).
BERNSTEIN, J., joins the statement of CAVANAGH, J.
PEOPLE V BAZZI, No. 159989; Court of Appeals No. 347765.
CAVANAGH, J. (dissenting). I respectfully dissent from this Court’s
order denying defendant’s application for leave to appeal because
defendant presented sufficient evidence to warrant a remand for a
Ginther1 hearing on his claim of ineffective assistance of counsel.
In 2013, defendant was convicted after a jury trial of one count of
first-degree criminal sexual conduct, MCL 750.520b(1)(a); two counts of
second-degree criminal sexual conduct, MCL 750.520c(1)(a); and two
counts of fourth-degree criminal sexual conduct, MCL 750.520e(1)(a),
from charges stemming from the sexual abuse of his niece. His convic-
tion was affirmed on appeal, and this Court denied his application for
leave to appeal. People v Bazzi, 499 Mich 928 (2016). In 2018, defendant
filed his first motion for relief from judgment. The trial court denied the
motion, and the Court of Appeals denied defendant’s application for
leave to appeal. Defendant now seeks leave to appeal in this Court.
In his motion for relief from judgment, defendant contended, among
other things, that his attorneys were ineffective for failing to request an
interpreter on his behalf. Defendant asserts that his primary language
is Arabic and that he did not fully understand most of the trial
proceedings, including plea negotiations. See People v Gonzalez-
Raymundo, 308 Mich App 175, 188 (2014) (“The lack of simultaneous
translation implicated defendant’s rights to due process of law guaran-
teed by the United States and Michigan Constitutions.”).
In support, defendant submitted four affidavits, the results of an
English proficiency test, and the results of a polygraph examination.
Two of the affidavits are from defendant’s two trial attorneys; one of
them avers that defendant’s English comprehension “was very low,” and
the other says that defendant’s English language comprehension “may
have been compromised.” Both state that they are not prepared to say
with certainty that defendant fully understood the consequences of
going to trial or his right to take the stand in his own defense. The
polygraph examination results show that the examiner believed that
defendant was being truthful when he responded “no” when asked
whether he understood most of the trial because of language and
whether his attorney thoroughly explained the prosecutor’s plea offer.
This was more than sufficient to warrant a Ginther hearing on
defendant’s claim of ineffective assistance of counsel. I would remand to
the trial court to hold such a hearing.
In re JONES/GILKES, MINORS, No. 161094; Court of Appeals No. 349555.

1
People v Ginther, 390 Mich 436 (1973).
 ORDERS IN CASES 1067
COMMUNITY MENTAL HEALTH PARTNERSHIP OF SOUTHEAST MICHIGAN V
MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES, No. 161261; Court
of Appeals No. 351236.
SHANNON V RALSTON, Nos. 161268 and 161269; Court of Appeals Nos.
350094 and 350110.
PEOPLE V ANTHONY WILLIAMS, No. 161286; Court of Appeals No. 353426.

Summary Disposition May 20, 2020:

PEOPLE V STEPHEN YOUNG, No. 159666; Court of Appeals No. 347219.

Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
remand this case to the Wayne Circuit Court for an evidentiary hearing,
to determine whether the defendant’s claim of newly discovered evi-
dence, which the defendant claims was suppressed in violation of Brady
v Maryland, 373 US 83 (1963), entitles him to relief from judgment
under MCR 6.508(D). People v Johnson, 502 Mich 541 (2018). We do not
retain jurisdiction.
PEOPLE V DEANDRE HAYWOOD, No. 160753; Court of Appeals No. 345243.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
vacate the November 8, 2019 order of the Court of Appeals, and we
remand this case to the Court of Appeals, as on reconsideration granted,
for plenary consideration of the defendant’s arguments, including the
contention that in other cases, the Court of Appeals has remanded to the
trial court for a determination whether to appoint appellate counsel for
the defendant-appellee. See, e.g., People v Skipp, unpublished order of
the Court of Appeals, issued July 11, 2018 (Docket No. 344349), People
v Adams, unpublished order of the Court of Appeals, issued June 5, 2013
(Docket No. 316114), and People v Nino, unpublished order of the Court
of Appeals, issued July 10, 2018 (Docket No. 344364). We do not retain
jurisdiction.
PEOPLE V NINO, No. 160788; Court of Appeals No. 344364. Pursuant to
MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this
case to the Court of Appeals, which shall hold this case in abeyance
pending its decision in People v Haywood (Docket No. 345243). After
Haywood is decided, the Court of Appeals shall determine whether that
opinion controls in this case and, if it does, reconsider this case in light
of Haywood. We do not retain jurisdiction.
PEOPLE V BOYD, No. 160899; Court of Appeals No. 342166. Pursuant to
MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this
case to the Wayne Circuit Court for an evidentiary hearing pursuant to
People v Ginther, 390 Mich 436 (1973), to consider whether appellate
counsel was ineffective for failing to move the trial court for a Ginther
hearing and trial counsel was ineffective for not calling the defendant as
a witness to support a self-defense claim. On remand, the trial court
shall order the State Appellate Defender Office, if feasible, to represent
the defendant. The motion to expand the record is granted.
1068 505 MICHIGAN REPORTS
Orders Granting Oral Argument in Cases Pending on Application for
Leave to Appeal Entered May 20, 2020:

YANG V EVEREST NATIONAL INSURANCE CO, No. 160578; reported below:

329 Mich App 461. The appellant shall file a supplemental brief within
42 days of the date of this order addressing: (1) whether an insurer may
cancel an insurance policy in compliance with MCL 500.3020(1)(b) by
mailing a written notice of cancellation to the insured before the grounds
for cancellation have occurred; and (2) whether the appellant’s written
notice of cancellation complied with the provision in the insurance policy
that requires “at least 10 days notice by first class mail, if cancellation is
for non-payment of premium.” In addition to the brief, the appellant shall
electronically file an appendix conforming to MCR 7.312(D)(2). In the
brief, citations to the record must provide the appendix page numbers as
required by MCR 7.312(B)(1). The appellees shall file supplemental briefs
within 21 days of being served with the appellant’s brief. The appellees
shall also electronically file appendices, or in the alternative, stipulate to
the use of the appendix filed by the appellant. A reply, if any, must be filed
by the appellant within 14 days of being served with the latter of the
appellees’ briefs. The parties should not submit mere restatements of
their application papers.
CAVANAGH, J., did not participate due to her prior relationship with
Garan Lucow Miller, P.C.
RICKS V STATE OF MICHIGAN, No. 160657; reported below: 330 Mich App
277. The appellant shall file a supplemental brief within 42 days of the
date of this order addressing whether the Court of Appeals erred in
holding that MCL 691.1755(4) applies in this case to bar the appellant
from recovering wrongful conviction compensation based on a concurrent
or consecutive conviction where the appellant was on parole for an earlier
crime when he was wrongfully convicted, and his parole was revoked
based on the wrongful conviction. In addition to the brief, the appellant
shall electronically file an appendix conforming to MCR 7.312(D)(2). In
the brief, citations to the record must provide the appendix page numbers
as required by MCR 7.312(B)(1). The appellee shall file a supplemental
brief within 21 days of being served with the appellant’s brief. The
appellee shall also electronically file an appendix, or in the alternative,
stipulate to the use of the appendix filed by the appellant. A reply, if any,
must be filed by the appellant within 14 days of being served with the
appellee’s brief. The parties should not submit mere restatements of their
application papers.
Persons or groups interested in the determination of the issue
presented in this case may move the Court for permission to file briefs
amicus curiae.

Leave to Appeal Denied May 20, 2020:

FORNER V ALLENDALE CHARTER TOWNSHIP SUPERVISOR, No. 159768; Court

of Appeals No. 339072.
 ORDERS IN CASES 1069
NYMAN V THOMSON REUTERS HOLDINGS, INC, No. 160376; reported below:
329 Mich App 539.
PEOPLE V BRACKNEY, No. 160726; Court of Appeals No. 350791.
CAVANAGH, J. (concurring). I concur in the Court’s order denying
defendant’s application for leave to appeal. I write separately, however,
to express that such denial is without prejudice to defendant’s ability to
file a motion for relief from judgment under MCR Subchapter 6.500
based on any claim relating to the issue of whether defendant was
deprived of his Sixth Amendment right to the effective assistance of
counsel when his trial attorney failed to file an interlocutory appeal of
the trial court’s order(s) denying defendant’s motion to suppress evi-
dence or negotiate a conditional plea, as well as the issue of whether
appellate counsel was ineffective for not raising these issues on appeal.
PEOPLE V DON BROWN, No. 160795; Court of Appeals No. 343999.
SZEKELY V KINACHTCHOUK, No. 160807; Court of Appeals No. 344377.
In re BURGESS-EILF, MINOR, No. 160996; Court of Appeals No. 349352.

Leave to Appeal Granted May 22, 2020:

BOWMAN V ST JOHN HOSPITAL AND MEDICAL CENTER, Nos. 160291 and

160292; Court of Appeals Nos. 341640 and 341663. The parties shall
address: (1) whether this Court’s decision in Solowy v Oakwood Hosp
Corp, 454 Mich 214 (1997), adopted the correct standard for application
of the six-month discovery rule set forth in MCL 600.5838a(2); (2) if not,
what standard the Court should adopt; and (3) whether the plaintiff in
this case timely served her notice of intent and filed her complaint under
MCL 600.5838a(2). The time allowed for oral argument shall be 20
minutes for each side. MCR 7.314(B)(1).
The Michigan Association for Justice, the Michigan Defense Trial
Counsel, Inc., and Michigan Health and Hospital Association are invited
to file briefs amicus curiae. Other persons or groups interested in the
determination of the issues presented in this case may move the Court
for permission to file briefs amicus curiae.

Leave to Appeal Denied May 22, 2020:

SANDERS V TUMBLEWEED SALOON, INC, No. 158789; Court of Appeals No.

338937. On November 6, 2019, the Court heard oral argument on the
application for leave to appeal the October 30, 2018 judgment of the
Court of Appeals. On order of the Court, the application is again
considered, and it is denied, because we are not persuaded that the
question presented should be reviewed by this Court.
CAVANAGH, J. (concurring). I concur in the denial order because I
agree that the Court of Appeals majority did not commit error requiring
reversal by reversing the trial court’s order granting defendants sum-
mary disposition.
1070 505 MICHIGAN REPORTS
I write separately to address an aspect of the dramshop act,
MCL 436.1801 et seq., that was not specifically raised on appeal, but
that I find relevant to whether plaintiffs complied with the plain
language of the notice provision of that act. At the time of the appeal,
MCL 436.1801(4) stated:1

An action under this section shall be instituted within 2 years

after the injury or death. A plaintiff seeking damages under this
section shall give written notice to all defendants within 120 days
after entering an attorney-client relationship for the purpose of
pursuing a claim under this section. Failure to give written notice
within the time specified shall be grounds for dismissal of a claim
as to any defendants that did not receive that notice unless
sufficient information for determining that a retail licensee might
be liable under this section was not known and could not
reasonably have been known within the 120 days. [Emphasis
added.]

I believe plaintiffs satisfied this notice requirement as a matter of

law. The plain language of the statute simply provides that notice must
be given within 120 days of the formation of “an” attorney-client
relationship for the purpose of pursuing a claim under the dramshop
statute. In this case, there is no dispute that the complaint was filed
within the two-year statute of limitations and that plaintiffs provided
the requisite notice of the claim to defendants within 120 days of the
formation of “an” attorney-client relationship with attorney Matthew
Hanley.2
The statutory requirement for notice within 120 days of the forma-
tion of “an” attorney-client relationship does not specify that it must be
the first attorney-client relationship. The use of the indefinite article
“an” indicates that the statute does not refer to a particular attorney-
client relationship, but rather any attorney-client relationship. See
Massey v Mandell, 462 Mich 375, 382 n 5 (2000) (“ ‘The’ and ‘a’ have
different meanings. ‘The’ is defined as ‘definite article. 1. (used, esp.
before a noun, with a specifying or particularizing effect, as opposed to

1
The notice provision of the dramshop act was amended in 2019
and is now codified at MCL 436.1801(3). See 2019 PA 131, effective
November 21, 2019. The changes to the text of the provision were minor
and do not affect my analysis.
2
Regardless of whether the dissent or the Court of Appeals is correct
with respect to whether plaintiffs formed an attorney-client relationship
with attorney Samuel Meklir for purposes of pursuing a dramshop
action, defendants do not dispute that the notice provided by Hanley
was sufficient under the statute and was provided within 120 days after
the formation of an attorney-client relationship between Hanley and
plaintiffs, and that Hanley filed the instant dramshop action on plain-
tiffs’ behalf within the two-year statute of limitations.
 ORDERS IN CASES 1071
the indefinite or generalizing force of the indefinite article a or an). . . .’
Random House Webster’s College Dictionary, p 1382.”). Admittedly, this
notice requirement functions differently than most. But that is because
it is not tied to an easily identifiable, date-specific event, such as the
date of the event giving rise to the claim. Rather, the notice requirement
is tied to an event that can occur—indeed, is likely to occur—more than
once: the formation of an attorney-client relationship for the purpose of
pursuing a claim under the dramshop statute. Because plaintiffs noti-
fied defendants of the claim within 120 days of the formation of an
attorney-client relationship, following which plaintiffs subsequently
filed the instant claim, I believe the requirements of MCL 436.1801(4)
were met.
The dissent points out that MCL 436.1801(4) (now MCL 436.1801(3);
see 2019 PA 131) contemplates a plaintiff providing “notice” and not
“notice[s]” to all defendants and that this use of the singular form of the
word indicates, despite the lack of specific language, that the requisite
notice must follow the formation of the first attorney-client relationship.
This argument ignores the fact that, under MCL 8.3b, the singular can be
read to include the plural (“Every word importing the singular number
only may extend to and embrace the plural number, and every word
importing the plural number may be applied and limited to the singular
number.”). See also MCR 1.107 (“Words used in the singular also apply to
the plural, where appropriate.”) In addition, MCL 436.1801(4) requires
that notice be given to “all” defendants, further indicating that the statute
contemplates the possibility of more than a single notice.
The dissent further argues that the context in which “an attorney-
client relationship” is used supports the interpretation of a singular
notice and the formation of a singular attorney-client relationship.
Specifically, the dissent argues that, construed together, the statute’s
requirement that notice be given within 120 days of forming an
attorney-client relationship and its provision that failure to provide that
notice within that time period “shall be grounds for dismissal of a claim
as to any defendants that did not receive that notice” necessarily means
that “the statute requires plaintiffs to give one written notice within 120
days after entering into the first attorney-client relationship for pur-
poses of pursuing a dramshop action—irrespective of the number of
relationships plaintiffs ultimately enter into thereafter.” I fail to see how
these provisions, read together, support the dissent’s conclusion. Nei-
ther the fact that a plaintiff must give notice within 120 days of forming
“an” attorney-client relationship nor the fact that his or her claim is
subject to dismissal for failing to give “that” notice illuminates the
question of whether a singular notice or a singular attorney-client
relationship is contemplated by the statute. Rather, as pointed out
above, the statute uses the term “an” rather than “the” or “the first”
when describing “attorney-client relationship” and, so long as the notice
was given within 120 days of forming an attorney-client relationship
and the claim was filed after that relationship was formed, the statute,
strictly speaking, was complied with.
1072 505 MICHIGAN REPORTS
I disagree with the dissent’s conclusion that the ability to reset the
notice requirement by obtaining a new attorney eliminates the 120-day
notice requirement altogether and renders the failure to comply “mean-
ingless.” The 120-day requirement still exists for each attorney-client
relationship formed in pursuit of a dramshop claim. If a plaintiff does not
comply with the notice requirement after entering an attorney-client
relationship, then any dramshop claim that is pursued as a result of that
attorney-client relationship is subject to dismissal as indicated in the
statute. This is a result of the language tying the notice to the formation
of “an” attorney-client relationship and, regardless of whether this is a
wise policy choice, the language chosen by the Legislature allows it.
ZAHRA, J. (dissenting). I respectfully dissent from the majority’s order
denying leave in this case. Instead, I would reverse the Court of Appeals
judgment and reinstate the trial court’s order granting summary
disposition in favor of defendants.
The dispositive question presented in this case is whether plaintiffs
entered into an attorney-client relationship with attorney Sam Meklir.
The trial court dismissed plaintiffs’ claims, finding that Meklir and
plaintiffs had an attorney-client relationship and that plaintiffs’ notice
under the dramshop act, MCL 436.1801 et seq., was insufficient. A split
panel of the Court of Appeals reversed. The majority concluded that
there was “a genuine question of fact regarding the very existence of a
relationship, if any, between plaintiffs and Meklir.”1 The dissenting
judge, on the other hand, concluded that no material facts were in
dispute and that “reasonable minds could not differ regarding the
existence or the scope of the parties’ attorney-client relationship.”2 I
agree with the dissenting judge from the Court of Appeals.

I. THE UNCONTROVERTED AND MATERIAL FACTS

Plaintiffs, David and Heather Sanders, traveled from their home in

northern Michigan to consult with attorney Sam Meklir about the
injuries sustained by David after being attacked by two intoxicated men
who had consumed alcohol at Chauncey’s Pub and Tumbleweed Saloon,
Inc. (defendants). Plaintiffs shared with Meklir pertinent information
about the events that occurred December 2, 2014, the night David was
assaulted. Plaintiffs looked to Meklir to “get things going” regarding
their potential claims. After consulting with Meklir, plaintiffs believed
that they had a cause of action. However, because their lawsuit needed
to be filed in northern Michigan, Meklir, whose office is in Southfield,
Michigan, informed plaintiffs he would not be the attorney who would
litigate their claims. Meklir thereafter referred plaintiffs to their
current attorney, Matthew Hanley, who practices in Traverse City,

1
Sanders v Tumbleweed Saloon, Inc, unpublished per curiam opinion
of the Court of Appeals, issued October 30, 2018 (Docket No. 338937),
p 7.
2
Id. at 1 (GLEICHER, J., dissenting).
 ORDERS IN CASES 1073
Michigan. Also, after consulting with plaintiffs, Meklir sent the follow-
ing letter to defendant Tumbleweed on February 3, 2015:
Please be advised that I represent Mr. David Sanders as a
result of injuries he sustained while at the Highway Bar[3] which
occurred on December 2, 2014.
I understand that you have a videotaping system that would
have recorded the activities, which occurred and during which,
Mr. Sanders was injured.
We believe that the video evidence, which is in your posses-
sion, would be critically important.
We would ask that the tapes, discs, or digital storing device
the events are kept on, be preserved and not subject to spoliation.
Our firm would be willing to view the information at your
convenience.
I thank you in advance for your cooperation.

On November 30, 2015, Hanley also sent a letter to Tumbleweed.

Hanley’s correspondence purported to provide notice required under the
dramshop act. Thereafter, Hanley filed a dramshop action on behalf of
plaintiffs in Montmorency County.

II. ANALYSIS

The notice provision of Michigan’s dramshop act requires plaintiffs

to “give written notice to all defendants within 120 days after entering
an attorney-client relationship for the purpose of pursuing a claim
under this section.”4 Failure to give such notice within the 120 days
specified is grounds for dismissal.5 The parties agree that if plaintiffs
entered into an attorney-client relationship with Meklir for purposes of
pursuing a dramshop claim, plaintiffs’ claims must be dismissed for
failure to comply with the notice provisions of the dramshop act.
“The relation of attorney and client is one of agency.”6 “Whether in
any case an attorney is professionally employed depends on the rela-
tions and mutual understanding of the parties, on what was said and
done, and all the facts and circumstances of the particular undertak-
ing.”7 The Court of Appeals majority needlessly looked outside Michigan

3
Tumbleweed is also known as the “Highway Bar” and the “Hi-Way.”
Further, David was actually injured at Chauncey’s Pub, not Tumbleweed.
4
MCL 436.1801(4). The Legislature recently amended MCL 436.1801,
moving the notice provision at issue to MCL 436.1801(3). See 2019 PA
131. This statement quotes the preamendment version of the statute.
5
Id.
6
Fletcher v Bd of Ed of Sch Dist Fractional No 5, 323 Mich 343, 348
(1948) (quotation marks and citation omitted).
7
Case v Ranney, 174 Mich 673, 682 (1913).
1074 505 MICHIGAN REPORTS
for authority regarding the creation of an attorney-client relationship.
This Court has clearly stated that the attorney-client relationship “is
sufficiently established when it is shown that the advice and assistance
of the attorney are sought and received in matters pertinent to his
profession.”8 “The rendering of legal advice and legal services by the
attorney and the client’s reliance on that advice or those services is the
benchmark of an attorney-client relationship.”9
Plaintiffs and Meklir entered into an attorney-client relationship for
the purpose of pursuing a dramshop claim when they met in Meklir’s
Southfield office, sometime before February 3, 2015, the date of Meklir’s
correspondence to Tumbleweed. Plaintiffs consulted with Meklir in his
capacity as a personal injury attorney to obtain legal advice and
services. They confided in Meklir as an attorney, discussing the entire
incident with him. Plaintiffs relied on Meklir to guide them on the best
course of action going forward.
Plaintiffs’ contention that no attorney-client relationship existed
because they did not retain Meklir as their attorney is not pertinent. No
retainer agreement or formalized documentation is required to establish
an attorney-client relationship.10 In fact, MCL 436.1801(4) does not
require a plaintiff to formally retain an attorney to trigger the 120-day
notice requirement.11 A plain reading of MCL 436.1801(4) demonstrates
the Legislature’s intent to require notice under a wider range of
circumstances, including where, as here, formal retention of an attorney
does not occur.12 Plaintiffs drove from their home in northern Michigan
to Meklir’s office in Southfield to consult with Meklir in his professional
capacity as a personal injury attorney. Plaintiffs sought and received
legal advice on how best to pursue their claims. This evidences an
attorney-client relationship.13

8
Macomb Co Taxpayers Ass’n v L’Anse Creuse Pub Sch, 455 Mich 1, 11
(1997) (quotation marks and citation omitted).
9
Id.
10
Id.
11
MCL 436.1801(4) (requiring a claimant to send notice “within 120
days after entering an attorney-client relationship for the purpose of
pursuing” a dramshop claim, not 120 days after retaining an attorney to
pursue that claim) (emphasis added).
12
See Johnson v Pastoriza, 491 Mich 417, 436 (2012) (“We must give
effect to the Legislature’s intent, and the best indicator of the Legisla-
ture’s intent is the words used. We must give every word its plain and
ordinary meaning . . . . If the language is plain and unambiguous, then
judicial construction is neither necessary nor permitted.”).
13
See Macomb Co Taxpayers, 455 Mich at 11; see also Grace v Ctr for
Auto Safety, 72 F3d 1236, 1242 (CA 6, 1996) (“In determining whether
an attorney-client relationship exists, . . . the focus is on the client’s
subjective belief that he is consulting a lawyer in the lawyer’s profes-
 ORDERS IN CASES 1075
Meklir’s letter is a critical piece of evidence, but not because it
establishes, by itself, the creation of an attorney-client relationship.
Rather, the letter serves as a memorialization of what occurred during
plaintiffs’ consultation with Meklir in that it signifies that plaintiffs
sought and received legal advice and services from Meklir in his capacity
as a personal injury attorney.14 The letter demonstrates that Meklir
learned the following information during his consultation with plain-
tiffs: (1) David sustained injuries, (2) where and when David sustained
those injuries (purportedly at the Highway Bar on December 2, 2014),
and (3) there was a videorecording system that might have recorded the
incident. Meklir’s focus on the bar also establishes that plaintiffs’ likely
cause of action was an action under the dramshop act. An attorney-
client relationship may be implied from the conduct of the parties,15 and
here, plaintiffs’ conduct—as evidenced by Meklir’s letter—demonstrates
that plaintiffs entered into an attorney-client relationship with Meklir
for the purpose of pursuing a dramshop claim.
Accepting as true plaintiffs’ claim that Meklir acted unilaterally in
sending this letter, their cause of action fares no better. While an
attorney-client relationship may not be established unilaterally,16 plain-
tiffs’ attorney-client relationship with Meklir was established before
Meklir sent the letter. The letter simply documents the existence of that
relationship.
Similarly, Meklir’s affidavit is not material or genuine with regard to
the establishment of an attorney-client relationship. Specifically, Meklir
avers that after speaking “with them regarding a potential personal
injury claim,” he “informed the Sanders[es] that [he] would not be
taking the case or representing them.” But the mere fact that plaintiffs
spoke with Meklir in his professional capacity regarding a potential
personal injury claim is sufficient to establish an attorney-client rela-
tionship, even if that consultation did not result in the execution of a
formal retainer agreement. A genuine question of fact is not created by
Meklir’s attestations that he did not represent the Sanderses and only
sent the letter to Tumbleweed as a “favor” to plaintiffs. “Summary
disposition cannot be avoided by conclusory assertions [in an affidavit]
that are at odds . . . with . . . [the] actual historical conduct of a party.”17

sional capacity and his intent is to seek professional legal advice.”)

(quotation marks and citation omitted).
14
See Macomb Co Taxpayers, 455 Mich at 11.
15
Id.; see also Fletcher, 323 Mich at 348 (“Courts are governed by
what the parties said and did, and not merely by their unexpressed
subjective intent.”).
16
Scott v Green, 140 Mich App 384, 400 (1985) (“[A] unilateral act is not
sufficient to create an attorney-client relationship, the attorney-client
relationship being based in contract.”), citing Fletcher, 323 Mich at 348.
17
Aetna Cas & Surety Co v Ralph Wilson Plastics Co, 202 Mich App
540, 548 (1993).
1076 505 MICHIGAN REPORTS
Notwithstanding Meklir’s affidavit clearly contradicting his prior asser-
tion in the letter that he “represent[ed]” David, Meklir’s admission that
he sent the letter, even as a favor to plaintiffs, nevertheless proves that
Meklir acted on behalf of plaintiffs in sending it.18 That is, Meklir’s
admission confirms that he was acting pursuant to the attorney-client
relationship he formed with plaintiffs, and that relationship did not
dissolve simply because Meklir told plaintiffs that he would not take the
case.
Plaintiffs also rely on their deposition testimony to argue that they did
not consent to an attorney-client relationship with Meklir, and their lack
of knowledge that Meklir sent the letter evidences the lack of mutuality
required to form that relationship. Plaintiffs’ deposition testimony does
not create a genuine and material question of fact. As the United States
Court of Appeals for the Sixth Circuit recently stated, while citing the
decision of the Michigan Court of Appeals below for support: “[I]n every
case where the existence of an attorney-client relationship is in dispute,
one side will say a relationship existed, while the other side will say it did
not.”19 Here, notwithstanding plaintiffs’ conclusory assertions that they
did not retain Meklir, their testimony actually supports the existence,
albeit brief, of an attorney-client relationship, as they testified they met
with Meklir in his capacity as an attorney to obtain legal advice and
services about the injuries sustained by David.

III. RESPONSE TO CONCURRENCE

The concurrence concludes that plaintiffs complied with the 120-day

notice requirement under MCL 436.1801(4) because the statute only
requires notice to be given after an attorney-client relationship is
entered and “does not specify that it must be the first attorney-client
relationship.” First, the plain language of MCL 436.1801(4) belies this
interpretation. MCL 436.1801(4) contemplates a plaintiff providing
“notice to all defendants.” The statute does not contemplate a plaintiff
providing “notice[s] to all defendants.” In fact, MCL 436.1801(4) ex-
pressly states that “[f]ailure to give written notice within the time
specified shall be grounds for dismissal of a claim as to any defendants

18
See Wigfall v Detroit, 504 Mich 330, 340 (2019) (“[I]n determining
whether an agency has been created, we consider the relations of the
parties as they in fact exist under their agreements or acts and note that
in its broadest sense agency includes every relation in which one person
acts for or represents another by his authority.”) (quotation marks and
citations omitted); see also Fletcher, 323 Mich at 348 (“An attorney at
law need not be in court or preparing to go into court, to be engaged in
work as an attorney. In a legal sense, an attorney at law often acts as an
agent or representative.”).
19
Cohen v Jaffe Raitt Heuer and Weiss, PC, 768 F Appx 440, 444 (CA
6, 2019), citing Sanders, unpub op at 4-6 (opinion of the Court).
 ORDERS IN CASES 1077
that did not receive that notice . . . .”20 Clearly, MCL 436.1801(4) con-
templates that a plaintiff must send one notice to all defendants.21
Further, the concurrence’s interpretation of MCL 436.1801(4) fails to
take into account the context in which “an attorney-client relationship”
is used.22 Again, MCL 436.1801(4) makes clear that plaintiffs “shall give
written notice to all defendants within 120 days after entering an
attorney-client relationship for the purpose of pursuing” a dramshop
action. The consequences of plaintiffs’ “[f]ailure to give written notice
within the time specified shall be grounds for dismissal of a claim as to
any defendants that did not receive that notice.”23 When these two
clauses are read in context with one another, the statute requires
plaintiffs to give one written notice within 120 days after entering into
the first attorney-client relationship for purposes of pursuing a dram-
shop action—irrespective of the number of relationships plaintiffs

20
Emphasis added.
21
The concurrence relies on MCL 8.3b and MCR 1.107 in contending
that the singular word “notice” can import the plural form of “notices.”
But such construction is only permissible to the extent it does not
conflict with the Legislature’s intent. See MCL 8.3 (“In the construction
of the statutes of this state, the rules stated in [MCL 8.3a to 8.3w] shall
be observed, unless such construction would be inconsistent with the
manifest intent of the legislature.”); MCR 1.107 (“Words used in the
singular also apply to the plural, where appropriate.”) (emphasis added).
By requiring plaintiffs to send notice to all defendants upon entering an
attorney-client relationship for the purposes of pursing a dramshop
claim, and by requiring the dismissal of plaintiffs’ claim as to all
defendants that did not receive that notice, the Legislature clearly
contemplated one notice being sent to all defendants.
Further, the concurrence contends that because MCL 436.1801(4)
requires notice to be given to “all” defendants, the statute contemplates
the possibility that more than a single notice may be given. Obviously,
copies of that single notice will have to be sent if there are multiple
defendants. But that is not the same as saying the statute contemplates
a notice being sent to all defendants after multiple attorney-client
relationships are formed.
22
Spectrum Health Hosps v Farm Bureau Mut Ins Co of Mich, 492
Mich 503, 515 (2012) (“Unless statutorily defined, every word or phrase
of a statute should be accorded its plain and ordinary meaning, taking
into account the context in which the words are used.”) (quotation marks
and citation omitted); Scalia & Garner, Reading Law: The Interpretation
of Legal Texts (St. Paul: Thomson/West, 2012), p 56 (“Of course, words
are given meaning by their context . . . .”).
23
MCL 436.1801(4).
1078 505 MICHIGAN REPORTS
ultimately enter into thereafter.24 Under the concurrence’s interpreta-
tion, plaintiffs could decide for themselves when MCL 436.1801(4)
applies and when it does not. That is, each time plaintiffs fail to give the
requisite notice under MCL 436.1801(4), they could avoid dismissal
simply by getting a new attorney to litigate their claim. This would
eviscerate the 120-day notice requirement altogether and render the
consequences of failing to comply with the statute meaningless.25
Here, once plaintiffs and Meklir entered into an attorney-client
relationship, Meklir was required to provide written notice to defen-
dants under MCL 436.1801(4), which, at a minimum, needed to provide
defendants with notice of plaintiffs’ intent to pursue a dramshop
action.26 Meklir’s letter wholly fails in this regard, as it does not apprise
Tumbleweed of David’s intent to pursue a dramshop action and was only
addressed to Tumbleweed—not Chauncey’s Pub. Accordingly, plaintiffs
failed to comply with MCL 436.1801(4) after entering an attorney-client
relationship with Meklir for the purpose of pursuing a dramshop claim,
and as a result, their dramshop claim was properly dismissed.

24
See Langrill v Stingers Lounge, 471 Mich 926, 926 (2004) (“Because
plaintiff did not present any evidence to the contrary, there is a
presumption that the attorney-client relationship she entered into with
her first attorney, who filed the original complaint in this matter,
included the purpose of pursuing a claim under MCL 436.1801.”)
(emphasis added).
25
Sweatt v Dep’t of Corrections, 468 Mich 172, 183 (2003) (opinion by
MARKMAN, J.) (“It is our duty to read the statute as a whole and to avoid
a construction which renders meaningless provisions that clearly were
to have effect.”) (quotation marks and citation omitted). The concur-
rence contends that “[t]he 120 day requirement still exists for each
attorney-client relationship formed in pursuit of a dramshop claim,” and
that “[i]f a plaintiff does not comply with the notice requirement after
entering an attorney-client relationship, then any dramshop claim that
is pursued as a result of that attorney-client relationship is subject to
dismissal . . . .” The concurrence’s interpretation is passing strange.
This Court’s “primary objective when interpreting a statute is to discern
the Legislature’s intent.” McCahan v Brennan, 492 Mich 730, 736
(2012). I fail to see how interpreting MCL 436.1801(4) to allow plaintiffs
unilateral authority to reset the statute’s 120-day notice requirement
effectuates any rational legislative purpose.
26
Auto-Owners Ins Co v Seils, 310 Mich App 132, 167 (2015) (noting
that, while MCL 436.1801(4) does not specify what the notice must
contain, when read in context, “it is patent that the written notice must,
at a minimum, provide notice to the defendant of the plaintiff’s intent to
pursue an action under the dramshop act against the notified defen-
dant”) (quotation marks and brackets omitted).
 ORDERS IN CASES 1079
IV. CONCLUSION

For these reasons, I agree with the circuit court and the Court of
Appeals’ dissenting opinion that there is no genuine dispute of material
fact that Meklir and plaintiffs entered into an attorney-client relation-
ship for the purpose of pursuing a dramshop claim some time prior to
February 3, 2015. Accordingly, I would reverse the judgment of the
Court of Appeals and remand to the Montmorency Circuit Court for
reinstatement of summary disposition in favor of defendants.
MARKMAN, J., joins the statement of ZAHRA, J.
PEOPLE V VICTOR WILSON, No. 161222; Court of Appeals No. 351335. On
order of the Court, the application for leave to appeal the February 19,
2020 order of the Court of Appeals is considered, and it is denied,
because the defendant’s motion for relief from judgment is prohibited by
MCR 6.502(G). This denial is without prejudice to the defendant
bringing a future motion for relief from judgment based on the witness
recantation evidence that has not been presented to the trial court. The
motions to stay and hold in abeyance, for remand, to appoint counsel
and defense expert, and for bail are denied.
PEOPLE V COTTINGHAM, No. 161303; Court of Appeals No. 353329.
GREAT LAKES CAPITAL FUND FOR HOUSING LIMITED PARTNERSHIP XII V
ERWIN COMPANIES, LLC, Nos. 161306 and 161307; Court of Appeals Nos.
349763 and 349931.
PEOPLE V JAMES REED, No. 161326; Court of Appeals No. 349566.

Summary Disposition May 26, 2020:

PEOPLE V SANCHEZ, No. 160032; Court of Appeals No. 343834. Pursu-

ant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand
this case to the Saginaw Circuit Court for the appointment of substitute
appellate counsel, in light of Halbert v Michigan, 545 US 605 (2005). The
defendant’s previous appellate attorneys allowed the time limits for
appellate review to expire without seeking direct review of the defen-
dant’s plea-based convictions or, alternatively, filing a motion to with-
draw that met the requirements of Anders v California, 386 US 738, 744
(1967). On remand, substitute counsel, once appointed, may file an
application for leave to appeal in the Court of Appeals for consideration
under the standard for direct appeals, and/or any appropriate post-
conviction motions in the circuit court, within six months of the date of
the circuit court’s order appointing counsel. In all other respects, leave
to appeal is denied, because we are not persuaded that the remaining
questions presented should be reviewed by this Court. The motions to
remand for evidentiary hearings are denied. We do not retain jurisdic-
tion.
BRACY V NICHOLS, No. 160664; Court of Appeals No. 341837. On order
of the Court, the application for leave to appeal the September 19, 2019
1080 505 MICHIGAN REPORTS
judgment of the Court of Appeals is considered. We do not disturb that
part of the Court of Appeals judgment that reversed the Wayne Circuit
Court’s grant of summary disposition to Farmers Insurance Exchange.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
vacate that part of the Court of Appeals judgment holding that summary
disposition should be granted in favor of Geico Indemnity Company and
we remand this case to the circuit court for further proceedings. The
Court of Appeals acted prematurely in deciding issues that were not
addressed by the circuit court. On remand, the circuit court may, in its
discretion, allow further development of the factual record and legal
arguments, including the application, if any, development of the factual
record and legal arguments, including the application, if any, of Dye v
Esurance Prop & Cas Ins Co, 504 Mich 167 (2019), before reconsidering
whether to grant either party’s motion for summary disposition. In all
other respects, leave to appeal is denied, because we are not persuaded
that the remaining question presented should now be reviewed by this
Court.
CAVANAGH, J., did not participate due to her prior relationship with
Garan Lucow Miller, P.C.

Application for Leave to Appeal Dismissed May 26, 2020:

IW V MM, No. 161152; Court of Appeals No. 350711. On order of the

Court, the motion to dismiss the application for leave to appeal the
March 18, 2020 order of the Court of Appeals is considered, and it is
granted. The remaining motions are denied as moot.
We conclude that the application for leave to appeal is frivolous and
vexatious. MCR 7.316(C). The Respondent-Appellant is ordered to pay
the Clerk of this Court $500 within 28 days of the date of this order. We
direct the Clerk of this Court not to accept any further filings from the
Respondent-Appellant in any non-criminal matter until he has made
the payment required by this order.

Leave to Appeal Denied May 26, 2020:

BARRIGER V BON-TON DEPARTMENT STORES, INC, No. 160028; Court of

Appeals No. 339317.
PEOPLE V JOHN WILLIAMS, No. 160114; Court of Appeals No. 348131.
PEOPLE V UPSHAW, No. 160230; Court of Appeals No. 349127.
GUZALL V SEIFMAN, Nos. 160245 and 160246; Court of Appeals Nos.
344507 and 345190.
PEOPLE V WALLS, No. 160256; Court of Appeals No. 348335.
PEOPLE V KEVIN KING, No. 160262; Court of Appeals No. 348447.
In re APPLICATION OF INDIANA MICHIGAN POWER COMPANY TO INCREASE
RATES, No. 160290; reported below: 329 Mich App 397.
 ORDERS IN CASES 1081
JURCZAK V MOUNT CLEMENS INVESTMENT GROUP, LLC, No. 160301; Court
of Appeals No. 348617.
PEOPLE V LYLE, No. 160416; Court of Appeals No. 349838.
NEWMEYER V BANK OF AMERICA, INC, No. 160452; Court of Appeals No.
343206.
PEOPLE V ADONIS FRYE, No. 160498; Court of Appeals No. 349310.
PEOPLE V MARKEST THOMPSON, No. 160537; Court of Appeals No.
348962.
PEOPLE V POST, No. 160545; Court of Appeals No. 350229.
PEOPLE V NELSON, No. 160554; Court of Appeals No. 350298.
WILLIAM P. FROLING REVOCABLE LIVING TRUST V PELICAN PROPERTY, LLC,
No. 160561; Court of Appeals No. 342185.
PEOPLE V PATTON, No. 160571; Court of Appeals No. 341568.
PEOPLE V ROBERT HAWKINS, No. 160582; Court of Appeals No. 349202.
PEOPLE V ST ANDRE, No. 160588; Court of Appeals No. 350085.
PEOPLE V WHITFIELD, No. 160603; Court of Appeals No. 348128.
PEOPLE V KUROWICKI, No. 160656; Court of Appeals No. 343168.
DOA DOA, INC V PRIMEONE INSURANCE COMPANY, No. 160673; Court of
Appeals No. 339215.
PEOPLE V FREDERICK ANDERSON, No. 160684; Court of Appeals No.
350751.
PEOPLE V GORDON DAVIS, No. 160685; Court of Appeals No. 344891.
DOERING V KOPPELBERGER, No. 160702; Court of Appeals No. 343196.
CAVANAGH, J., did not participate because of her prior involvement in
this case.
HAMADY V AUTO OWNERS INSURANCE COMPANY, No. 160712; Court of
Appeals No. 350216.
CAVANAGH, J., did not participate due to her prior relationship with
Garan Lucow Miller, P.C.
GRAHAM V CAPITAL AREA TRANSPORTATION AUTHORITY, No. 160735; Court
of Appeals No. 345460.
PEOPLE V SIFUENTES, No. 160765; Court of Appeals No. 350949.
IRWIN V FARM BUREAU GENERAL INSURANCE COMPANY OF MICHIGAN, No.
160773; Court of Appeals No. 350677.
PEOPLE V DALLAS WALKER, No. 160780; reported below: 330 Mich App
378.
1082 505 MICHIGAN REPORTS
PEOPLE V JONATHON JONES, No. 160783; Court of Appeals No. 351001.
PEOPLE V WAYNE, No. 160786; Court of Appeals No. 350150.
PEOPLE V CORONADO, No. 160792; Court of Appeals No. 350777.
PEOPLE V HORTON, No. 160800; Court of Appeals No. 349714.
PEOPLE V FRED WILLIAMS, No. 160814; Court of Appeals No. 345324.
PEOPLE V TALVEST ALLEN, No. 160816; Court of Appeals No. 344853.
PEOPLE V BRIAN HAYWOOD, No. 160822; Court of Appeals No. 342729.
PEOPLE V PURNELL, No. 160836; Court of Appeals No. 346649.
PEOPLE V PLANK, Nos. 160838 and 160839; Court of Appeals Nos.
344298 and 348869.
PEOPLE V ALBERT HAYWOOD, No. 160851; Court of Appeals No. 344797.
PEOPLE V MCCLINTON, No. 160852; Court of Appeals No. 352078.
In re GUARDIANSHIP OF BARBARA ANN DELBRIDGE, In re CONSERVATORSHIP
OFBARBARA ANN DELBRIDGE, In re GUARDIANSHIP OF ROBERT LEE MITCHELL,
and In re CONSERVATORSHIP OF ROBERT LEE MITCHELL, Nos. 160853, 160854,
160855, and 160856; Court of Appeals Nos. 346770, 346778, 346780, and
346781.
MCCORMACK, C.J., did not participate because of her prior involve-
ment in these cases.
PEOPLE V MICHAEL BROOKS, No. 160857; Court of Appeals No. 351589.
FLOEN V LEWIN, No. 160858; Court of Appeals No. 350477.
PEOPLE V ARNDOLA LEWIS, No. 160875; Court of Appeals No. 342461.
BAK V HENRY FORD MACOMB HOSPITAL CORPORATION, No. 160886; Court
of Appeals No. 342483.
BAK V HENRY FORD MACOMB HOSPITAL CORPORATION, No. 160890; Court
of Appeals No. 342483.
PEOPLE V ESQUIVEL, No. 160902; Court of Appeals No. 344832.
PEOPLE V GOOD, No. 160910; Court of Appeals No. 351392.
PEOPLE V DAVEAUNTA HALL, No. 160911; Court of Appeals No. 351448.
PEOPLE V LEONARD HAYES, No. 160912; Court of Appeals No. 351363.
PEOPLE V DAWSON, No. 160923; Court of Appeals No. 351266.
PEOPLE V JOHN RICHARDSON, No. 160924; Court of Appeals No. 351491.
PEOPLE V SPRINGS, No. 160925; Court of Appeals No. 344563.
PEOPLE V GARLINGER, No. 160929; Court of Appeals No. 344679.
 ORDERS IN CASES 1083
PEOPLE V GARZA, No. 160935; Court of Appeals No. 344870.
PEOPLE V MAGEE, No. 160951; Court of Appeals No. 344092.
PEOPLE V LESTER BELL, No. 160953; Court of Appeals No. 350195.
PEOPLE V ELMORE NICHOLS, No. 160976; Court of Appeals No. 351072.
PEOPLE V DAVID STEVENS, No. 160978; Court of Appeals No. 344795.
PEOPLE V NEAL, No. 160983; Court of Appeals No. 350673.
PEOPLE V MICHAEL GREEN, No. 160992; Court of Appeals No. 351749.
PEOPLE V KRZEMINSKI, No. 161099; Court of Appeals No. 344806.
WIMMER V MONTANO, No. 161121; Court of Appeals No. 351762.
PEOPLE V ADRIAN DAVIS, No. 161136; Court of Appeals No. 351413.
PEOPLE V JOHNATHAN BURKS, No. 161153; Court of Appeals No. 335955.

Reconsideration Denied May 26, 2020:

DKE, INC V SECURA INSURANCE COMPANY, Nos. 158988 and 158989;

Court of Appeals Nos. 333497 and 337834. Leave to appeal denied at 505
Mich 969.
CAVANAGH, J., did not participate due to her prior relationship with
Garan Lucow Miller, P.C.
MEGERIAN V UNITED SERVICES AUTOMOBILE ASSOCIATION, No. 159684;
Court of Appeals No. 336483. Leave to appeal denied at 505 Mich 935.
CAVANAGH, J., did not participate due to her prior relationship with
Garan Lucow Miller, P.C.
PEOPLE V JACK SMITH, No. 159733; Court of Appeals No. 347491. Leave
to appeal denied at 505 Mich 974.
PEOPLE V OSWALD, No. 160017; Court of Appeals No. 349267. Leave to
appeal denied at 504 Mich 1001.
PEOPLE V MICHAEL PETERSON, No. 160045; Court of Appeals No. 347080.
Leave to appeal denied at 505 Mich 942.
PEOPLE V DORIAN WILLIS, No. 160063; Court of Appeals No. 347549.
Leave to appeal denied at 505 Mich 975.
VIVIANO, J., did not participate because he presided over this case in
the circuit court at an earlier stage of the proceedings.
PEOPLE V DEANDRE KING, No. 160069; Court of Appeals No. 349269.
Leave to appeal denied at 505 Mich 871.
PEOPLE V DANNIE SMITH, No. 160089; Court of Appeals No. 348180.
Leave to appeal denied at 505 Mich 975.
1084 505 MICHIGAN REPORTS
Summary Disposition May 27, 2020:

PEOPLE V RAMSEY, No. 160152; Court of Appeals No. 334614. Pursuant

to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this
case to the Court of Appeals for reconsideration in light of People v
Sammons, 505 Mich 31 (2020).
PEOPLE V LEMONS, No. 160374; Court of Appeals No. 348277. Pursuant
to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this
case to the Court of Appeals for consideration as on leave granted.
WILSON V MEIJER GREAT LAKES LIMITED PARTNERSHIP, No. 160530; Court
of Appeals No. 349078. Pursuant to MCR 7.305(H)(1), in lieu of granting
leave to appeal, we remand this case to the Court of Appeals for
consideration as on leave granted.

Order Granting Oral Argument in Case Pending on Application for

Leave to Appeal Entered May 27, 2020:

MARQUARDT V UMASHANKAR, No. 160772; Court of Appeals No. 343248.

The appellant shall file a supplemental brief within 42 days of the date
of this order addressing whether the decedent failed to give Dr.
Umashankar notice as required by MCL 600.2912b, by way of notice
mailed on July 20, 2009, on the ground that the notice was not
addressed or directed to him. In addition to the brief, the appellant shall
electronically file an appendix conforming to MCR 7.312(D)(2). In the
brief, citations to the record must provide the appendix page numbers as
required by MCR 7.312(B)(1). The appellee shall file a supplemental
brief within 21 days of being served with the appellant’s brief. The
appellee shall also electronically file an appendix, or in the alternative,
stipulate to the use of the appendix filed by the appellant. A reply, if any,
must be filed by the appellant within 14 days of being served with the
appellee’s brief. The parties should not submit mere restatements of
their application papers.
The Michigan Association for Justice, the Michigan Defense Trial
Counsel, Inc., and Michigan Health and Hospital Association are invited
to file briefs amicus curiae. Other persons or groups interested in the
determination of the issues presented in this case may move the Court
for permission to file briefs amicus curiae.
BERNSTEIN, J., did not participate because he has a family member
with an interest that could be affected by the proceeding.

Leave to Appeal Denied May 27, 2020:

PACE V DOE, No. 160562; Court of Appeals No. 339777.

CAVANAGH, J., did not participate due to her prior relationship with
Garan Lucow Miller, P.C.
PEOPLE V CARLSON, No. 160630; Court of Appeals No. 346234.
 ORDERS IN CASES 1085
PEOPLE V JUSTIN SMITH, No. 160755; Court of Appeals No. 349782.
MCDADE V PROGRESSIVE INSURANCE COMPANY, No. 160864; Court of
Appeals No. 345179.

Rehearing Denied May 27, 2020:

In re RELIABILITY PLANS OF ELECTRIC UTILITIES FOR 2017–2021, Nos.

158305, 158306, 158307, and 158308; reported below: 325 Mich App 207.
Michigan Supreme Court opinion at 505 Mich 97.

Complaint for Superintending Control Dismissed May 28, 2020:

MONTANO V COURT OF APPEALS, No. 161233.

MONTANO V COURT OF APPEALS, No. 161281.

Motion to Waive Fees Denied May 28, 2020:

In re MONTANO, Nos. 161273 and 161274; Court of Appeals Nos.

353392 and 353410. On order of the Chief Justice, the motion for
immediate consideration of the motion to waive fees, the motion to
amend the application, and the motions to add issues are granted. On
further order of the Chief Justice, the motion to waive fees is denied. The
plaintiff-appellant shall pay the fees for the interlocutory application,
the motion to amend the application filed on May 4, 2020, and the
motions to add issues filed on May 6, 2020, and May 12, 2020, within 28
days of the date of this order or the application will be administratively
dismissed. The motions to expedite, for stay, and for immediate consid-
eration filed on May 4, 2020, are ordered withdrawn in accordance with
the request of the plaintiff-appellant.

Summary Disposition May 29, 2020:

JEROME V CRUM, No. 159093; Court of Appeals No. 335328. On March 5,

2020, the Court heard oral argument on the application for leave to
appeal the December 27, 2018 judgment of the Court of Appeals. On order
of the Court, the application is again considered. MCR 7.305(H)(1). In lieu
of granting leave to appeal, we affirm the judgment of the Court of
Appeals.
Plaintiff, Samuel Jerome, brought a tort action against defendants,
Lieutenant Michael Crum and the city of Berkley. Relevant to this
appeal, Mr. Jerome’s action advanced a claim for gross negligence.
Defendants sought summary disposition based upon both collateral
estoppel and Mr. Jerome’s having failed to advance evidence permitting
a reasonable jury to conclude that Lieutenant Crum constituted the
proximate cause of Mr. Jerome’s arrest and imprisonment. The trial
court granted summary disposition based upon Lieutenant Crum’s
1086 505 MICHIGAN REPORTS
collateral-estoppel argument and Mr. Jerome appealed. In the Court of
Appeals, defendants renewed both arguments in support of summary
disposition. The Court of Appeals affirmed the trial court’s grant of
summary disposition. First, the Court of Appeals agreed with the trial
court’s collateral-estoppel analysis. Jerome v Crum, unpublished per
curiam opinion of the Court of Appeals, issued December 27, 2018
(Docket No. 335328), pp 7-8. Second, as an alternative ground for
affirming the grant of summary disposition, the Court of Appeals stated:

Moreover, assuming that collateral estoppel was not

applicable . . . , summary disposition would be appropriate under
MCR 2.116(C)(10) for lack of a genuine issue of material fact. For
the reasons already outlined above, there is no evidence to show
that Crum’s failure to turn over the video recording of the August
interview was a cause, let alone the proximate cause, of plaintiff’s
continued prosecution or imprisonment. Any suggestion that the
prosecution would have dropped the case against plaintiff sooner if
it had been aware of the tape earlier is to engage in impermissible
speculation. Any reliance on the prosecution’s ultimate decision to
decline pursuing the case after the mistrial is misplaced because
there is nothing in the record to show that the prosecution’s
decision was based on the existence of the videotape. Indeed, there
are a host of possible reasons not related to the late production of
the videotape why the prosecution could have decided to forgo a
second trial, including that the witnesses perhaps testified in an
unexpected way at the first trial or that the complainant perhaps
simply decided that she was not going to testify or cooperate any
more after having already been subjected to several interviews and
having already testified in court twice. Hence, plaintiff cannot
maintain his claim of gross negligence, and summary disposition is
properly entered in favor of defendant. Thus, assuming the trial
court erred when it granted summary disposition on plaintiff’s
gross negligence claim on the basis of collateral estoppel, we
nonetheless affirm because summary disposition was warranted
under MCR 2.116(C)(10). [Id. at 8 (emphasis added) (citation
omitted).]

Thus, independent and alternative grounds supported the Court of

Appeals’ affirmance of the trial court’s grant of summary disposition.
In his application for leave to appeal in this Court, Mr. Jerome
challenges the Court of Appeals’ conclusion that collateral estoppel
barred his claim. Mr. Jerome, however, failed to present as an issue for
review whether the Court of Appeals also erred in reaching its alterna-
tive holding that he failed to advance evidence to support the causation
element of his gross-negligence claim. And neither Mr. Jerome’s appli-
cation for leave to appeal nor his supplemental brief following this
Court’s order scheduling oral argument on his application can fairly be
read as challenging that aspect of the Court of Appeals’ basis for
affirming the grant of summary disposition. Accordingly, even if we were
to conclude that collateral estoppel did not bar Mr. Jerome’s claim, he
has failed to place the Court of Appeals’ alternative and independent
 ORDERS IN CASES 1087
ground for affirming the trial court’s grant of summary disposition
before this Court. Therefore, we find it unnecessary to reach the merits
of the collateral-estoppel issue and affirm the judgment of the Court of
Appeals.
CAVANAGH, J. (concurring). I concur in the order affirming the judg-
ment of the Court of Appeals but write separately because I believe that
summary disposition of plaintiff’s gross-negligence claim was proper on
the ground that plaintiff failed to raise a genuine issue of material fact
as to causation.
Plaintiff filed actions in both state and federal court against the city
of Berkley and Lieutenant Michael Crum, the police officer who had
criminally investigated plaintiff for the alleged sexual abuse of plain-
tiff’s step-daughter, AK. The investigation resulted in criminal charges
that were later dropped. Plaintiff’s complaint in state court alleged
unlawful arrest, false imprisonment, malicious prosecution, and gross
negligence. The state district court determined that probable cause
existed to bind plaintiff over on charges based on the testimony of the
victim alone and did not consider any statements or testimony of
Lieutenant Crum. Further, the federal district and appellate courts
determined that any omissions or inconsistent statements by Lieuten-
ant Crum, and his failure to disclose a videotape of an interview with
AK, were not material to the existence of probable cause. Jerome v
Crum, unpublished opinion of the United States District Court for
the Eastern District of Michigan, issued August 25, 2016 (Case No.
15-12302); 2016 WL 4475010, p *4 (“Any inconsistencies between [AK’s]
accounts of the alleged abuse were known to the prosecutor and defense
attorney as of the time of the preliminary exam, yet the judge found
probable cause based upon [AK’s] testimony. If the August 21 video had
been available at the preliminary exam, Plaintiff cannot show that it
would have changed the judge’s finding of probable cause.”); Jerome v
Crum, 695 F Appx 935, 942 (CA 6, 2017) (“[Plaintiff] cannot show that
Crum’s omission of the details of the August 21 interview was material
to or strengthened the case against him because A.K. stated the same
version of events in the preliminary examination that she did in the
August 21 interview.”). Finally, the transcript of the criminal proceed-
ings indicates that the mistrial was granted because the late disclosure
of the videotape jeopardized plaintiff’s right to a fair trial, not because
the disclosure of the videotape obviated probable cause.
Given this factual record, there is no dispute that probable cause to
continue the prosecution and incarceration of plaintiff existed up to and
including the time that the mistrial was granted. While, conceivably, a
claim for gross negligence could be sustained even where probable cause
supports an arrest, prosecution, and continued incarceration, plaintiff
failed to produce any evidence that his prosecution and incarceration
would not have continued but for the actions of Crum. Under these facts,
I agree with the Court of Appeals that plaintiff failed to raise a genuine
issue of material fact as to causation and that summary disposition of
plaintiff’s gross-negligence claim was proper under MCR 2.116(C)(10).
1088 505 MICHIGAN REPORTS
Orders Granting Oral Argument in Cases Pending on Application for
Leave to Appeal Entered May 29, 2020:

KROLCZYK V HYUNDAI MOTOR AMERICA, No. 160606; Court of Appeals

No. 343996. The appellants shall file a supplemental brief within
42 days of the date of this order addressing the following issues:
(1) whether the 46th District Court properly exercised jurisdiction over
this case notwithstanding that the Oakland Circuit Court’s Novem-
ber 18, 2015 transfer order lacked the appellees’ stipulation “to an
appropriate amendment of the complaint,” Administrative Order No.
1998-1; (2) whether, assuming any error in the transfer was nonjuris-
dictional, the district court properly exercised jurisdiction over this
case where, upon transfer, the complaint contained an ad damnum
clause seeking more than the district court’s jurisdictional limit, see
MCL 600.8301; and (3) whether, assuming the district court properly
exercised jurisdiction upon transfer notwithstanding the complaint’s ad
damnum clause, the district court nevertheless had the authority
to permit amendment of the complaint. In addition to the brief,
the appellants shall electronically file an appendix conforming to
MCR 7.312(D)(2). In the brief, citations to the record must provide the
appendix page numbers as required by MCR 7.312(B)(1). The appellees
shall file a supplemental brief within 21 days of being served with the
appellants’ brief. The appellees shall also electronically file an appendix,
or in the alternative, stipulate to the use of the appendix filed by the
appellants. A reply, if any, must be filed by the appellants within 14 days
of being served with the appellees’ brief. The parties should not submit
mere restatements of their application papers.
MAPLES V STATE OF MICHIGAN, No. 160740; reported below: 328 Mich
App 209. On order of the Court, the motion to docket application for leave
to appeal is granted. The application for leave to appeal the May 14, 2019
judgment of the Court of Appeals is considered. We direct the Clerk to
schedule oral argument on the application. MCR 7.305(H)(1).
The appellant shall file a supplemental brief within 42 days of the
date of this order addressing whether the proffered evidence is “new
evidence” under MCL 691.1752(b). In addition to the brief, the appellant
shall electronically file an appendix conforming to MCR 7.312(D)(2). In
the brief, citations to the record must provide the appendix page
numbers as required by MCR 7.312(B)(1). The Court respectfully directs
the Attorney General as appellee to file separate supplemental briefs
arguing both sides of the question presented within 21 days of being
served with the appellant’s brief. The appellee shall also electronically
file appendices, or in the alternative, stipulate to the use of the appendix
filed by the appellant. A reply, if any, must be filed by the appellant
within 14 days of being served with the appellee’s briefs. The parties
should not submit mere restatements of their application papers. The
time allowed for oral argument shall be 15 minutes for each side of the
question presented. MCR 7.314(B)(2). The appellant may award part of
his time to the Attorney General.
 ORDERS IN CASES 1089
CLEMENT, J. (concurring in part and dissenting in part). I dissent from
the Court’s order granting plaintiff’s motion to docket his application.
The Court of Appeals ruled against plaintiff on May 14, 2019. See
Maples v Michigan, 328 Mich App 209 (2019). Plaintiff then attempted
to file an application for leave to appeal in this Court, but selected the
wrong menu option in our TrueFiling software and filed the application
in the Court of Appeals instead. Since this occurred on the deadline to
file his application in this Court, his subsequent efforts to file an
application in this Court were untimely, and on October 30, 2019, we
denied his motion to accept his application. Maples v Michigan, 504
Mich 1003 (2019). However, on November 22—more than six months
after the original opinion had issued, and almost one month after this
Court had rejected his untimely application—the Court of Appeals
ordered, sua sponte, certain amendments to its opinion in this matter.
On the strength of these amendments, plaintiff filed a new application
in this Court. Our clerk’s office initially rejected that application, but
plaintiff refiled it along with a motion to accept his application, and the
matter was referred to the Justices.
I believe it is improper for this Court to docket this application.
Plaintiff had 42 days to file an application for leave to appeal the Court
of Appeals’ decision. MCR 7.305(C)(2)(a). We have already held that he
failed to file a timely application under that rule. That timeliness
requirement is subverted when we reset it because the Court of Appeals
ordered a sua sponte correction to its opinion. Admittedly, our court
rules do not squarely resolve what should be done here, but in deciding
whether to docket the application under these circumstances, I believe
we should do our best to analogize to what the court rules do recognize.
The closest analogy, in my view, is to those situations in which the Court
of Appeals issues an unpublished opinion but then grants a subsequent
publication request. Under such circumstances, the 42-day clock resets
from the date of the reissued published opinion. See MCR 7.305(C)(2)(d).
Of course, publication requests must be made within 21 days of the
issuance of either the Court of Appeals’ opinion or an order denying a
timely motion for reconsideration, MCR 7.215(D)(1), so that window is
not open indefinitely. Our decision to reset the 42-day clock when the
Court of Appeals takes such action is motivated by the jurisprudential
consequences of publication, which gives an opinion “precedential effect
under the rule of stare decisis,” MCR 7.215(C)(2), and binds future
panels of the Court of Appeals, MCR 7.215(J)(1). Under these circum-
stances, it is understandable that a party who may have been content to
accept an unsatisfactory unpublished opinion will prefer Supreme Court
review once the opinion will control future cases as well.
The question in my mind, then, is whether the change the Court of
Appeals ordered is a substantive change to the opinion, which changes
its legal significance in an analogous way to ordering publication of what
had been an unpublished opinion. In my view, that inquiry would
examine whether the change that was made is, in and of itself,
something that a party would have reason to appeal. I do not think the
change here qualifies. The amendment the Court of Appeals ordered
substituted one dictionary definition for another and made other con-
1090 505 MICHIGAN REPORTS
forming changes to the text; I do not believe these changes will
substantively affect how any party litigates claims of this sort in the
future. I agree with our clerk’s office’s initial conclusion that the change
at issue was a clerical one which, therefore, did not reset the 42-day
timeline plaintiff had to file in this Court, and I dissent from our order
docketing his application.
All that said, the Court obviously has voted to docket plaintiff’s
application. That action having been taken, I concur with our order to
direct argument on this application. The question presented is an
interesting one that merits this Court’s review. While I disagree with
docketing the application, if it is to be docketed, I agree that we should
order argument on it.

Leave to Appeal Denied May 29, 2020:

PEOPLE V MASALMANI, No. 154773; Court of Appeals No. 325662. On

order of the Court, leave to appeal having been granted and the briefs
and oral arguments of the parties having been considered by the Court,
we vacate our order of April 5, 2019. The application for leave to appeal
the September 22, 2016 judgment of the Court of Appeals is denied,
because we are no longer persuaded that the questions presented should
be reviewed by this Court.
MCCORMACK, C.J. (dissenting). I respectfully dissent from the Court’s
determination that leave to appeal was improvidently granted in this
case. The trial court’s sentencing decision reveals the critical flaw in this
Court’s opinion in People v Skinner, 502 Mich 89 (2018): by reading the
Sixth Amendment out of MCL 769.25 we have permitted life-without-
parole sentences that violate the Eighth Amendment. I would overrule
Skinner. Short of that, I would vacate the decision below and remand to
the trial court for resentencing, because the trial court abused its
discretion when it treated the mitigating factors as aggravating factors
to justify its sentence of life imprisonment without the possibility of
parole.
The defendant, Ihab Masalmani, was 17 years old when he and
16-year-old Robert Taylor committed the offense for which Masalmani
was sentenced to life without parole (LWOP). The two juveniles ab-
ducted a 21-year-old man in the parking lot of a fast-food restaurant and
took the victim to a vacant home, where Masalmani shot and killed him.
Masalmani was charged with multiple felonies, including first-
degree felony murder.1 Masalmani was convicted, and the trial court
imposed the then statutorily mandated sentence of LWOP for the
murder conviction. At Masalmani’s original sentencing proceeding the
trial court did not consider (and, given the date of his conviction and
sentencing, could not have considered) whether Masalmani was one of

1
At the time of his crimes, Michigan law treated all 17-year-olds
charged with crimes as adults, regardless of their offense. See
MCL 712A.1(1)(i), amended effective October 1, 2021, by 2019 PA 109.
 ORDERS IN CASES 1091
the “the rare juvenile offender[s] whose crime reflects irreparable
corruption” such that his LWOP sentence was constitutional under the
Eighth Amendment. Miller v Alabama, 567 US 460, 479-480 (2012)
(quotation marks and citations omitted).
Miller was decided while Masalmani’s appeal of right was pending.
The Court of Appeals affirmed Masalmani’s convictions but, in light of
Miller’s prohibition on mandatory LWOP sentences for juvenile (homi-
cide)2 offenders, the panel vacated his murder sentence and remanded
to the trial court for resentencing. People v Masalmani, unpublished per
curiam opinion of the Court of Appeals, issued March 19, 2013 (Docket
Nos. 301376 through 301378), p 7.
On remand, the trial court resentenced Masalmani pursuant to
MCL 769.25,3 our state’s legislative response to Miller. The trial court
heard expert and lay witness testimony. The former included testimony
on adolescent brain development—the same science that the Supreme
Court discussed in Miller to explain why juvenile offenders’ “transient
rashness, proclivity for risk, and inability to assess consequences”
reduces their culpability and “diminish[es] the penological justifications
for imposing the harshest sentences . . . even when they commit terrible
crimes.” Miller, 567 US at 472. The latter included testimony about
Masalmani’s behavior while incarcerated and his family background
and upbringing, including descriptions of the physical and sexual abuse
he experienced as a child.
At the conclusion of the hearing, the trial court again sentenced
Masalmani to LWOP. Addressing the “Miller factors” individually,4 the
trial court concluded that all of the factors save one (Masalmani’s family

2
See Graham v Florida, 560 US 48 (2010) (holding that the Eighth
Amendment prohibits the imposition of a LWOP sentence on a juvenile
offender for a nonhomicide offense).
3
Under MCL 769.25, a trial court must conduct a “Miller hearing” in
any case in which the prosecutor timely moves for a sentence of LWOP for
a defendant who, while less than 18 years of age, commits a crime the
penalty for which is mandatory LWOP (but for the defendant’s youthful-
ness). At that hearing, the trial court must “consider the factors listed in
[Miller] . . . and may consider any other criteria relevant to its decision,
including the individual’s record while incarcerated.” MCL 769.25(6). The
court must “specify on the record the aggravating and mitigating circum-
stances considered by the court and the court’s reasons supporting the
sentence imposed.” MCL 769.25(7).
4
As Miller explained, a sentencing scheme that mandates LWOP for
juvenile offenders violates the Eighth Amendment because such a
scheme “mak[es] youth (and all that accompanies it) irrelevant to
imposition of that harshest prison sentence” and “poses too great a risk
of disproportionate punishment.” Miller, 567 US at 479. In so holding,
Miller outlined several mitigating factors unique to juvenile offenders
that are given no weight in a mandatory sentencing regime. These
1092 505 MICHIGAN REPORTS
and home environment) weighed against a term-of-years sentence and
favored life without the possibility of parole. The Court of Appeals
affirmed the sentence, finding no error or abuse of discretion in the trial
court’s sentencing decision. People v Masalmani, unpublished per
curiam opinion of the Court of Appeals, issued September 22, 2016
(Docket No. 325662).
We issued our decision in Skinner while Masalmani’s application for
leave to appeal was pending in this Court. Skinner raised a constitu-
tional challenge to the sentencing process set forth in MCL 769.25;
specifically, whether this process violates the Sixth Amendment right to
have (almost) any fact that increases a defendant’s punishment beyond
the prescribed statutory maximum submitted to a jury and proven
beyond a reasonable doubt. See Apprendi v New Jersey, 530 US 466
(2000). I thought the answer was yes. That is, the “most natural reading
[of MCL 769.25] requires a trial court to make factual findings beyond
those found by the jury before it can impose an LWOP sentence on a
juvenile,” because the statute requires a statement of aggravated and
mitigating circumstances considered by the sentencing court, as well as
reasons supporting the court’s sentencing decision, before the court may
impose life imprisonment without the possibility of parole. Skinner, 502
Mich at 152-153 (MCCORMACK, J., dissenting).
But my view did not prevail. This Court avoided the Sixth Amend-
ment issue and held that MCL 769.25 does not require a trial court to
make any additional findings (beyond the offender’s guilt) before sen-
tencing a juvenile offender to LWOP. Skinner, 502 Mich at 117-119
(opinion of the Court). That is, there is no judicial fact-finding problem,
because there is no fact-finding requirement. The Court reasoned that
such a result is consistent with Miller (and Montgomery v Louisiana,
577 US 190 (2016)),5 because those decisions do not impose a presump-
tion against LWOP for juvenile offenders. Skinner, 502 Mich at 131.
Instead, the statute “merely requires” the trial court to consider the
Miller factors and explain its decision. Id. at 114-117; see MCL 769.25(6)
and (7). If this is done, the trial court’s sentencing decision will not be
disturbed on appeal absent an abuse of discretion. Skinner, 502 Mich at
131-137.

“Miller factors” include: “chronological age and its hallmark features,”

including “immaturity, impetuosity, and failure to appreciate risks and
consequences”; the juvenile’s family and home environment; the circum-
stances of the offense, including susceptibility to familial and peer
pressures; the “incompetencies associated with youth,” including an
inability to deal with police officers, prosecutors, or defense counsel; and
reduced culpability due to age and capacity for change. Miller, 567 US at
477-478; see also Skinner, 502 Mich at 113 (stating that “[MCL 769.25]
requires the court to conduct a hearing to consider the Miller factors”).
5
Montgomery held that Miller’s prohibition on mandatory LWOP for
juvenile offenders is a substantive rule that must be applied retroactively
to cases in which direct appellate review ended before Miller was decided.
 ORDERS IN CASES 1093
I remain unconvinced that this approach taken avoids constitutional
infirmity.6 But my disagreement with the Court’s constitutional hold-
ings aside, a trial court’s decision to sentence a juvenile offender to
LWOP is subject to abuse-of-discretion review. See Skinner, 502 Mich at
131-137. In my view the trial court abused its discretion here.
“It is undisputed that all of [the Miller] factors are mitigating
factors.” Skinner, 502 Mich at 115, citing Miller, 567 US at 489. But the
trial court’s treatment of these factors shows that the court did not treat
them as mitigating. That is, the court did not consider them for what
they are—circumstances and features common to juvenile offenders
generally, consideration of which would lead to reasons not to impose the
maximum sentence allowed by our federal constitution. See note 4 of
this statement. For example, in weighing Masalmani’s “chronological
age and its hallmark characteristics,” Miller, 567 US at 477, the trial
court concluded that “this factor favors imposing [a] sentence of life
without the possibility of parole.” (Emphasis added). This was not
simply unartful phrasing; that is, the court was not finding the absence
of a general feature of youth to conclude that Masalmani’s crime was not
mitigated. Rather, the court explained that had Masalmani been several
months older at the time of his crime, he would not have benefited from
Miller’s prohibition on mandatory LWOP sentencing. The court ac-
knowledged that the scientific evidence presented at the Miller hearing
“established that the prefrontal cortex continues to develop into one’s
mid-20s,” but proceeded to disregard this evidence because “the Court is
not free to take this developmental disconnect into consideration when
a criminal defendant is over 18.” This was a clear abuse of discretion.
Miller did not suggest that 18-year-olds are, as a class, equipped with
the decision-making faculties that 17-year-olds lack. Nor did Miller
suggest that a sentencer should disregard the expanding body of
scientific knowledge on adolescent brain development merely because
an older offender who, although developmentally similar, may be subject
to mandatory LWOP sentencing. To the extent Miller drew a bright line

6
As I explained, I think the majority’s approach “renders meaningless
the individualized sentencing required by Miller by allowing LWOP
effectively to serve as the default sentence as long as the prosecutor files
[a] motion [seeking a sentence of LWOP].” Skinner, 502 Mich at 148
(MCCORMACK, J., dissenting). A sentencing scheme that does not begin
with a presumption against LWOP for juvenile offenders violates
the Eighth Amendment, at least under current United States Supreme
Court jurisprudence. Id. at 150. And reading the statute to require
no fact-finding requirement at all before a LWOP sentence may be
imposed violates Miller and Montgomery. See id. at 145-148. The
Supreme Court may resolve these questions next term. See Jones v
State, 285 So 3d 626 (Miss Ct App, 2017), cert gtd 250 So 3d 1269 (Miss,
2018), cert dis by unpublished order of the Mississippi Supreme Court,
entered November 27, 2018 (Docket No. 2015-CT-00899-SCT), cert gtd
___ US ___; 140 S Ct 1293 (2020).
1094 505 MICHIGAN REPORTS
at the legal age of majority, the Court was not suggesting that the
adolescent development period ends at the age of 18. See Roper v
Simmons, 543 US 551, 574 (2005) (“Drawing the line at 18 years of age
is subject, of course, to the objections always raised against categorical
rules. The qualities that distinguish juveniles from adults do not
disappear when an individual turns 18.”) (emphasis added). The testi-
mony in this case, which the trial court appeared to accept, suggested
that 18-year-old offenders too should not be sentenced as adults, for the
reasons explained in Miller. That is, while the law does not require that
categorically, the facts might well in most cases. The court’s treatment
of this factor invoked the scientific evidence for the precise opposite of
what it showed. In doing so, the court upended Miller’s foundational
principle—that the “imposition of a State’s most severe penalties on
juvenile offenders cannot proceed as though they were not children.”
Miller, 567 US at 474.7
The trial court’s treatment of the other Miller factors (with the
exception of Masalmani’s family and home environment, which the
court acknowledged was mitigating) did not rehabilitate the court’s
sentencing decision. The court’s evaluation of the “incompetencies
associated with youth,” Miller, 567 US at 477, is short enough to quote
in full: “[T]here was no evidence that the incapacities of youth caused
defendant to be unable to participate in his defense. Nor is there any
evidence that he implicated himself due to youthful incapacities. As
such, this factor favors sentencing defendant to [LWOP].” Here again, I
believe the trial court treated as aggravating circumstances factors that
are exclusively mitigating (or, at most, neutral). Miller did not suggest
that a juvenile offender is more deserving of LWOP if the offender is
better able to participate in their defense; Miller discussed this factor in
explaining how features of our criminal system may lead to dispropor-
tionate outcomes between juveniles and adults. See Miller, 567 US at
477-478 (explaining that a juvenile offender “might have been charged
and convicted of a lesser offense if not for incompetencies associated

7
The trial court provided similar reasoning when it resentenced
codefendant Taylor. Like Masalmani, Taylor was convicted of first-
degree felony murder (in a separate trial), received resentencing relief
under Miller in his appeal of right, and was resentenced to LWOP.
Addressing this factor in Taylor’s case, the trial court stated:
Defendant [Taylor] was a mere 14 months shy of his 18th
birthday at the time of his offense, suggesting that this develop-
mental disconnect between his prefrontal cortex and his limbic
system was not much more pronounced than that of an 18 year
old. In short, while this factor does not weigh as heavily against
[Taylor] as it did against [Masalmani], the Court is not convinced
that this factor mitigates against a sentence of life without the
possibility of parole.
 ORDERS IN CASES 1095
with youth—for example, his inability to deal with police officers or
prosecutors (including on a plea agreement) or his incapacity to assist
his own attorneys”).
Most troublesome is the trial court’s treatment of Masalmani’s
potential for rehabilitation. See Miller, 567 US at 478 (stating that
mandatory LWOP “disregards the possibility of rehabilitation even
when the circumstances most suggest it”). After acknowledging that
Masalmani’s troubled upbringing was a mitigating consideration, the
court cited this same upbringing to conclude that Masalmani’s potential
for rehabilitation was “minimal.” In so finding, the court did not assert
that Masalmani was “irreparably corrupt,” but that his rehabilitation
would require the type of professional treatment that “he is very
unlikely to receive in prison.” In other words, the trial court cited the
state’s inability to provide Masalmani with rehabilitative treatment—a
fact completely out of Masalmani’s control—as a justification for his
lifelong incarceration. The trial court did not evaluate Masalmani’s
potential for rehabilitation but rather the state’s inability to facilitate
such rehabilitation.8
The “circumstances of the homicide offense,” Miller, 567 US at 477,
weighed heavily in the trial court’s decision to impose LWOP, and there
is no doubt that Masalmani’s crime was vicious. But the individualized
inquiry that Miller demands, and the sentencing decision that results
from it, will always and only occur where a juvenile stands convicted of
a homicide. See Graham v Florida, 560 US 48 (2010). Our review of the
trial court’s work must, therefore, always go beyond the trial court’s
evaluation of this factor. As the Supreme Court explained in Miller,
“[t]hat Miller deserved severe punishment for killing [his victim] is
beyond question. But once again, a sentencer needed to examine all
these circumstances before concluding that life without any possibility
of parole was the appropriate penalty.” Id. at 479.
Concluding there was no abuse of discretion in this case underscores
my concern that our decision in Skinner allows for LWOP sentences that
violate the Eighth Amendment. Skinner, 502 Mich at 148 (MCCORMACK,
J., dissenting) (“I cannot see how Miller’s dictates are satisfied by the
hollow formality to which the majority’s holding would reduce the
hearing mandated by MCL 769.25(6).”). Abuse of discretion is a defer-
ential standard. But even so, the trial court’s sentencing decision must
be a reasonable and principled outcome based on “case-specific detailed
factual circumstances.” Skinner, 502 Mich at 134 (opinion of the Court)
(quotation marks and citations omitted). That did not occur here.
For these reasons, I respectfully dissent.

8
Or rather, the court’s perception of the state’s inability. The trial
court did not identify any evidence in the record to support its suspicion
that Masalmani would be “very unlikely” to receive rehabilitative
services while incarcerated. And evaluating the potential for rehabili-
tative services in our prison system in the decades to come—time that
Masalmani would remain incarcerated had the court declined to impose
LWOP—is, at most, an exercise in educated guesswork.
1096 505 MICHIGAN REPORTS
BERNSTEIN and CAVANAGH, JJ., join the statement of MCCORMACK, C.J.
PEOPLE V SKELLETT, No. 161138; Court of Appeals No. 344600. On
order of the Court, the motion for immediate consideration is granted
and the motion for bond pending appeal is denied. The motion to file a
pro per supplement is granted. The motion to seal Appendix F of the
application for leave to appeal is granted. The Court finds that there is
good cause to seal Appendix F because it contains confidential and
privileged documents. There is no less restrictive means to adequately
and effectively protect the specific interests asserted. See MCR 8.119(I).
The application for leave to appeal the March 3, 2020 judgment of the
Court of Appeals is considered, and it is denied, because we are not
persuaded that the questions presented should be reviewed by this
Court.
PEOPLE V BISHOP PERRY, No. 161343; Court of Appeals No. 352870.

Summary Disposition June 5, 2020:

PEOPLE V HAYNIE, No. 159619; reported below: 327 Mich App 555. On
order of the Court, leave to appeal having been granted and the briefs
and oral arguments of the parties having been considered by the Court,
we reverse that part of the April 16, 2019 judgment of the Court of
Appeals addressing jury instructions and we remand this case to the
Macomb Circuit Court for a new trial before a properly instructed jury.
See M Crim JI 17.2.
On the basis of the prosecutor’s concession, we assume without
deciding that assault and battery, MCL 750.81(1), is a lesser included
offense of assault with intent to commit murder, MCL 750.83. The trial
court erred by refusing to give the requested jury instruction because a
rational view of the evidence supported a conviction for assault and
battery. See People v Cornell, 466 Mich 335, 357 (2002). This error was
not harmless as the evidence clearly supported an instruction on assault
and battery. See id. at 363-366.
A requested instruction on a lesser included offense is proper if the
greater offense requires the jury to find a disputed factual element that
is not part of the lesser included offense and a rational view of the
evidence would support it. Id. at 357. There was evidence presented at
trial that defendant had the intent necessary for assault and battery—
that he either intended to commit a battery upon his mother, Patricia, or
intended to make her reasonably fear an immediate battery. See People
v Johnson, 407 Mich 196, 210 (1979). However, the prosecutor argued
that no rational view of the evidence in this case supports a conviction
for anything less than assault with intent to commit great bodily harm
less than murder. Whether the instruction on the lesser included offense
should have been given thus turns on whether a rational view of the
evidence supported the conclusion that defendant lacked both the intent
to kill and the intent to do great bodily harm. See Cornell, 466 Mich at
345. Patricia testified that she believed defendant lacked even the intent
to commit great bodily harm against her—he had “gone out of his way
 ORDERS IN CASES 1097
his whole life, even as a toddler, to keep [her] from any kind of pain.”
Defendant’s sister testified that defendant and Patricia had a loving
relationship, and there was no testimony that defendant and Patricia
had any kind of falling out that might have motivated an intent to
seriously harm or murder her. Defendant’s statements to Patricia
during the assault suggested that his intended purpose was to help his
mother by ridding her of the devil—“[M]om, I’ve got to save you, Lucifer
has you . . . .” Because “believability is for the jury to decide, not
appellate judges,” People v Silver, 466 Mich 386, 394 (2002), the jury
could have chosen to believe this testimony. A rational view of these facts
regarding defendant’s intent would allow a jury to conclude that
defendant committed assault and battery.
The dissenting statement argues that defendant has offered insuffi-
cient evidence to obtain the instruction on the lesser offense, relying on
the severity of Patricia’s injuries in contrast. But, as observed by the
dissenting opinion in the Court of Appeals, “there is no quantum of
injury necessarily associated with an assault and battery.” People v
Haynie, 327 Mich App 555, 571 (2019) (GLEICHER, J., dissenting). While
the severity of injury bears on intent, it is not necessarily dispositive,
and the jury should be free to make its own determination after
weighing the evidence.
We further conclude that this error was not harmless given that the
evidence clearly supported an instruction on assault and battery. See
Cornell, 466 Mich at 363-366.1 As was the case in Silver, defendant’s
alleged victim corroborated his theory of the case by testifying that she
did not believe defendant intended to injure her. In addition, defendant’s
sister’s testimony and the absence of testimony indicating a heightened
intent supported defendant’s theory. Not giving the jury an instruction
that allowed them to consider defendant’s comparative guilt as to
assault and battery undermines the reliability of the verdict. See Silver,
466 Mich at 393. Accordingly, we reverse the judgment of the Court of
Appeals and remand to the circuit court for a new trial. We do not retain
jurisdiction.
CLEMENT, J. (concurring). I concur in full with the Court’s order.
Because the People have conceded the issue of whether assault and
battery is a necessarily included lesser offense of assault with intent to
murder, we do not decide the issue today. I write separately to go over
the questions that I believe will need answering if we take up this issue
in the future.

1
In his partial dissent, Justice ZAHRA challenges whether “this Court
can simply make a determination as to whether instructional error of
this kind undermines the reliability of the verdict without prior appel-
late review,” given that the Court of Appeals in Silver had considered the
issue. However, the Court of Appeals did not consider whether the error
in Cornell was harmless, yet that was the dispositive reason for this
Court denying that defendant a new trial, so we believe that there is
ample precedent for this Court resolving the question “without prior
appellate review.”
1098 505 MICHIGAN REPORTS
As a general matter, when an offense consists of “different de-
grees, . . . the jury, or the judge in a trial without a jury, may find the
accused not guilty of the offense in the degree charged in the indictment
and may find the accused person guilty of a degree of that offense
inferior to that charged in the indictment . . . .” MCL 768.32(1). There
has, over the years, been much debate about how to implement this
statute, which, as we noted in People v Cornell, 466 Mich 335, 341
(2002), has been around in substantially identical form since 1846. The
recurring issue is how to identify which lesser offenses a jury should be
instructed upon, such that it could return a verdict as to an “offense
inferior to that charged in the indictment.”
One rule is to instruct on “cognate” offenses based on the facts
adduced at trial. Thus, in People v Jones, 395 Mich 379 (1975), overruled
by Cornell, 466 Mich at 357, the defendant was charged with second-
degree murder. The trial testimony was that the defendant shared an
apartment with the victim; on a particular day, a friend of the victim’s
came to visit, and while the victim and her friend were chatting in the
kitchen, the defendant got a shotgun from a closet, aimed it at the
victim, and fired it, killing her. Id. at 384-385. The defendant testified on
his own behalf and conceded that he had obtained the shotgun from the
closet, but claimed that he had only intended to brandish it for the
purpose of scaring the visitor into leaving; he asserted that he did not
know the weapon was loaded, that he did not intentionally aim it at
anyone, and that the weapon only accidentally discharged when he was
bumped by the visitor (who he had successfully induced into fleeing). Id.
at 385. The jury was instructed as to second-degree murder and
voluntary manslaughter, but the trial court rejected the defendant’s
request to instruct the jury as to MCL 752.861, which criminalizes
killing or injuring a person with the careless, reckless, or negligent
discharge of a firearm. Id. at 385-386. We adopted a rule that “[i]f the
lesser offense is of the same class or category, or closely related to the
originally charged offense, so as to provide fair notice to the defendant
that he will be required to defend against it, the lesser offense is or may
be included within the greater.” Id. at 388. While MCL 752.861 is not a
necessarily included lesser offense of second-degree murder—because
MCL 752.861 requires the use of a firearm, while second-degree murder
does not—we held under this test that the jury should have been
instructed as to MCL 752.861 anyway. “Because the evidence adduced at
trial would have supported a guilty verdict on the offense of careless,
reckless or negligent discharge of firearms causing death, the trial court
was required to . . . instruct the jury that such offense was a lesser
included offense of the charge of second-degree murder.” Id. at 390.
In Cornell, we rejected this rule of “cognate” lesser offenses. Instead,
we held that a jury could only be instructed under MCL 768.32(1) as to
necessarily included lesser offenses. We repudiated the Jones rule and
said a regime of necessarily included lesser offenses was more faithful to
the text of the statute. Cornell, 466 Mich at 354. In doing so, we also
concluded that requiring that a lesser included offense be necessarily
included was more consistent with Hanna v People, 19 Mich 316 (1869),
an early case that had construed what is now codified as MCL 768.32(1).
 ORDERS IN CASES 1099
Cornell remains our controlling interpretation of the statute, so
Michigan requires that a lesser offense be necessarily included in the
charged offense for a jury to be instructed as to a lesser offense.
This contrast between Cornell’s “necessarily included” rule and the
preceding caselaw played out in the Court of Appeals’ disposition of this
case. The majority, which held that assault and battery is not a lesser
included offense of assault with intent to murder, did so on the basis of
People v Ross, 73 Mich App 588 (1977). In Ross, the Court of Appeals was
implementing our rule from Jones. In particular, Ross drew on some
discussion in Jones of People v McDonald, 9 Mich 150 (1861). In
McDonald, the defendant had been charged with assault with intent to
murder, and we held that the defendant could also be convicted of
assault and battery on such a charge. We observed in Jones that “under
a strict ‘necessarily included’ test, an assault and battery offense would
not be included, as battery is an element not required for the higher
assault with intent to murder offense,” and concluded that McDonald
was evidence that we had not always consistently adhered to a line
between “cognate” lesser included offenses and “necessarily” included
lesser offenses. Jones, 395 Mich at 389. On the strength of the remark
in Jones, Ross then remarked that “[a]ssault and battery is not an
offense necessarily included within the crime of assault with intent to
murder.” Ross, 73 Mich App at 592. And, on the strength of Ross, the
Court of Appeals here held that “assault and battery is not a lesser
included offense of assault with intent to murder.” People v Haynie, 327
Mich App 555, 561 (2019). Judge GLEICHER dissented. She observed that
Ross had depended upon Jones, and Jones was overruled in Cornell. She
preferred to look to Hanna, a case in which the defendant was charged
with assault with intent to murder and, we held, was properly convicted
of assault and battery. Since we had expressly looked to Hanna as the
controlling law in Cornell, she argued that “Hanna answers the question
presented in this case.” Id. at 569 (GLEICHER, J., dissenting).
The problem is that Jones misconstrued McDonald, and Cornell
misconstrued Hanna. If Jones stands for the proposition that a jury can
be instructed on cognate lesser offenses based on the facts adduced at
trial, and Cornell stands for the proposition that the jury can be
instructed only on necessarily included lesser offenses, then McDonald
and Hanna employed a third rule: that a jury can be instructed on lesser
offenses that are included within the narrative allegations of the
charging document. This rule “looks to the pleadings to determine
whether the offense has been sufficiently alleged and allows any lesser
included offenses if alleged in the information” and is described as “the
cognate-pleadings theory.” Koenig, The Many-Headed Hydra of Lesser
Included Offenses: A Herculean Task for the Michigan Courts, 1975 Det
C L Rev 41, 43, 49. Thus, in McDonald, the information alleged that the
defendant “unlawfully ma[d]e an assault” on the victim and, in doing so,
did “beat, wound and ill treat, with intent . . . unlawfully, feloniously
and carnally to know and abuse.” McDonald, 9 Mich at 150. In other
words, the defendant was charged with assault with intent to rape, in
violation of 1857 CL 5730. But, in the course of making such a charge,
the information alleged that he “beat, wound[ed] and ill treat[ed]” the
1100 505 MICHIGAN REPORTS
victim, so the jury could find the defendant guilty of simple assault and
battery, since physical contact was alleged. Similarly, in Hanna, 19 Mich
at 317, it was alleged that the defendant “ ‘with a certain piece of iron,
the same being a dangerous weapon, which he, . . . in his right hand
then and there held, feloniously did beat, bruise and wound one John
Shine, with intent . . . feloniously, wilfully, and of his malice afore-
thought, to kill and murder the said John Shine,’ ” as well as that he
“ ‘did make an assault, and did beat, choke, wound and strike him, the
said John Shine, with intent . . . then and there feloniously, wilfully, and
of his malice aforethought, to kill and murder’ ” the victim. In other
words, he was charged with assault with intent to murder while armed,
and assault with intent to murder, in violation of 1857 CL 5724 and
5726. We held “that assaults are substantially and in effect divided by
the statute into degrees; and that an indictment for any of the higher
grades, or assaults with various degrees of aggravation, must include
the inferior degree of simple assault; or, if the higher degree is charged
including a battery, as in the present case, the simple assault and
battery are included . . . .” Id. at 322-323. The juries in McDonald and
Hanna could convict on assault and battery, not because it was neces-
sarily included in the charged offenses, but rather, because the factual
allegations in each information supporting the charged offenses recited
a battery.1
To say that Cornell misunderstood Hanna is not to say that Cornell
misinterpreted MCL 768.32(1), however. It seems apparent that crimi-
nal charges are made somewhat differently today than they were at the
time of Hanna. What I do not know is what, exactly, has changed—is it
simply a matter of convention? Have the legal standards changed?
Perhaps a law or court rule has been amended? And when did that
occur? The rule in Hanna does not seem to map all that well onto
contemporary criminal procedure, meaning that it requires a degree of
“translation” to apply it today—but to do so, I would certainly find it
helpful to learn more about what changed and when it changed.
In addition, translating the rule under Hanna and its progeny to
contemporary practice requires getting to the bottom of what the actual
rule was. There are, unfortunately, many mysteries in the cases that
follow. The actual assault and battery statute, MCL 750.81(1), provides
that “a person who assaults or assaults and batters an individual . . . is
guilty of a misdemeanor punishable by imprisonment for not more than
93 days or a fine of not more than $500.00, or both.” Per the terms of the
statute, then, it is a matter of indifference whether a battery occurred;

1
To the extent there is any doubt that this was the rule being
employed in McDonald and Hanna, it is put to rest by People v
Ellsworth, 90 Mich 442 (1892). There, we held that while the informa-
tion was “not as clear and precise as it might have been,” it alleged that
the defendant “ ‘bruise[d], wound[ed], and ill-treat[ed]’ ” the victim, id.
at 447, and thus a conviction for assault and battery was available
under Hanna when the defendant was charged with assault with intent
to do great bodily harm less than murder.
 ORDERS IN CASES 1101
a simple assault, whether or not paired with a battery, is a 93-day
misdemeanor. Much as with MCL 768.32(1), this has basically been the
case since 1846; at that time, the maximum punishments were one year
in jail or $200, but the statute was equally indifferent to whether a
battery occurred. See 1846 RS, ch 153, § 29. As we noted in McDonald
and Hanna, where a complaint alleged some more serious assault, this
statute put simple assault (or assault and battery) at the bottom of the
stack of crimes for which the defendant could be convicted. At times,
though, our cases have suggested that we are not as indifferent to the
distinction between simple assault and assault and battery as the
statute appears to be. In Turner v Muskegon Circuit Judge, 88 Mich 359
(1891), the defendant was charged with assault with intent to do great
bodily harm less than murder, and she was found guilty of assault and
battery. The defendant moved to have the verdict set aside, because the
charging document did not specifically allege a battery. The prosecutor
moved to amend the information to insert battery-specific language
(“did beat, wound, and ill treat”), but the trial court released the
defendant without ruling on the prosecutor’s motion. Id. at 360. The
prosecutor sought a writ of mandamus in this Court against the circuit
judge to compel the circuit court to vacate its order releasing the
defendant and issue a judgment on the verdict,2 but we held that the
writ must be denied because “[i]t [was] plain that the information could
not be amended so as to include the offense for which the jury convicted
the [defendant].” Id. at 361. However, in People v Andre, 194 Mich 524
(1917), the defendant was charged with assault with intent to do great
bodily harm less than murder, and he was ultimately convicted of
assault and battery. Relying on Turner, we said that he could not be
convicted of assault and battery if no battery was alleged in the charging
document. However, we held that “[i]t does not follow . . . that the
verdict must fail entirely,” because “[t]he jury could not have returned a
verdict of assault and battery without finding that an assault had been
committed,” meaning that “[t]he verdict should stand as a conviction for
an assault.” Id. at 527.
I struggle to reconcile Turner and Andre. On first glance, it appears
that in Turner, the defendant walked free on the technicality that the
jury had returned a verdict of guilty on assault and battery, and the
narrative in the information alleged no battery as such. Yet in Andre, I
gather that the same technical defect was in the pleadings, but we held
not that the defendant would go free, but rather that the verdict would
be amended to a conviction for simple assault. Andre also confuses me
because the defendant was sentenced to 60 days in jail, id. at 526, and
we set aside that sentence because it “was greater than is allowed in
case of an assault,” id. at 527. But 1915 CL 15220 provided that the
maximum punishment for simple assault was one year in jail, which is

2
Incidentally, it is also not clear to me why this argument came before
this Court in the form of a complaint for mandamus against the trial
court judge, rather than an appeal from the trial court’s order releasing
the defendant.
1102 505 MICHIGAN REPORTS
much greater than 60 days. We cited People v Harrington, 75 Mich 112
(1889), in support, but I do not see how Harrington fits—it held that “for
a conviction at the circuit of a crime within the jurisdiction of a justice
[of the peace] no greater punishment can be given than could be imposed
by a justice,” id. at 113-114, and because the sentence in Harrington was
for four months in jail but a justice of the peace could impose no more
than three months, the sentence was not “wholly void” but rather capped
at three months, id. at 114. Given that the 60 days in Andre is less than
the three months in Harrington, I do not see how Andre follows from
Harrington.
A common theme of the cases that seem to insist upon a technical
distinction between “assault” and “assault and battery” is that they pay
little heed to the statutory text, which, as noted, imposes no different
punishment for assaults and assaults paired with batteries. This
appears to me to be the case in Turner and Andre, but it is not limited
to them. In People v Burk, 238 Mich 485 (1927), the defendant was
charged with assault with a dangerous weapon, and the trial judge
charged the jury to determine whether, if they could not find him guilty
of that, they could find him guilty of assault and battery; and, if they
could not find him guilty of that, to determine whether he was guilty of
simple assault. While this clearly seems to contemplate them as
different crimes, it offers little insight into why the jury would need to
be instructed in this fashion in light of the statutory text. I face similar
confusion in People v Kynerd, 314 Mich 107 (1946), in which the
defendant was charged with assault with a dangerous weapon, and the
judge charged the jury to consider whether the defendant was either
guilty as charged, guilty of assault and battery, or not guilty. He was
convicted as charged, but he argued on appeal that the judge should
have given the jury the option of convicting him of assault and battery.
We rejected his argument, but again did little to analyze the actual
statutory text.
Of course, perhaps there is a reason these cases did not engage with
the statutory text. It could be that the outcome in those cases turned on
our use of the “cognate-pleadings” rule. If so, the results in those cases
may offer us little illumination about how things should work today—
although to decide that with confidence, it would be helpful to learn how
and when we moved away from our prior practices in charging defen-
dants with crimes. Perhaps we would learn instead that the older cases
are applicable to today, but some of them were simply wrong when they
were decided—for example, perhaps Turner and Andre are not reconcil-
able. Or perhaps there are appropriate analogies to draw—for example,
if in Andre the defendant’s conviction of assault and battery could be
amended to a simple assault, perhaps we can conclude that where (as
here) a defendant asks for an assault and battery instruction when a
simple assault instruction may have been more precise, that should not
be fatal to his appeal. Then again, maybe all of these cases are
flawed—not just Turner and Andre, but also Burk and Kynerd—for not
having been as attentive to the statutory text as we are now. Maybe
there is a ghost in this particular law machine that I simply have not
identified which connects these dots in some other fashion. I have no
 ORDERS IN CASES 1103
particular view on what the “right” answer is—but I believe that for this
Court to find that answer, we will benefit from assistance answering
these questions.
ZAHRA, J. (concurring in part and dissenting in part). I concur with
the majority’s decision to accept, without deciding, the prosecution’s
concession that assault and battery1 is a lesser included offense of
assault with intent to commit murder.2 I also concur with the majority’s
determination that “a rational view of the evidence supported a convic-
tion for assault and battery.” I write separately to express my opinion
that the case should be remanded to the Court of Appeals for a
determination as to whether the trial court’s instructional error was
harmless.
In this case, the Court of Appeals, in a split decision, held that
“[b]ecause of the brutality of the assault, no rational view of the evidence
could support a finding of simple assault and battery.”3 Having made
this determination, the majority concluded “that the trial court did not
err by refusing to give an instruction on assault and battery.”4
Under this Court’s guidance in People v Cornell, if an instruction on
a lesser included offense should have been given to the jury at trial, but
was not, reversal is not warranted unless the instructional error was not
harmless.5 This Court explained that even if a jury should have been
given a requested instruction, a trial court’s error in failing to give the
instruction is not grounds for reversal of criminal convictions unless the
error was “ ‘outcome determinative’ because it undermined the reliabil-
ity of the verdict,” stating:

[T]he reliability of the verdict is undermined when the evidence

“clearly” supports the lesser included instruction, but the instruc-
tion is not given. In other words, it is only when there is
substantial evidence to support the requested instruction that an
appellate court should reverse the conviction. As we must con-
sider the “entire cause” pursuant to MCL 769.26, in analyzing
this question, we also invariably consider what evidence has been
offered to support the greater offense.
Also, it is important to note that this “substantial evidence”
standard for determining whether reversal is required on the
basis of an instructional error differs from the standard for
determining whether the error occurred. As discussed, an eviden-
tiary dispute supported by a rational view of the evidence
regarding the element that differentiates the lesser from the
greater offense will generally require an instruction on the lesser

1
MCL 750.81(1).
2
MCL 750.83.
3
People v Haynie, 327 Mich App 555, 563 (2019).
4
Id.
5
People v Cornell, 466 Mich 335, 363-365 (2002).
1104 505 MICHIGAN REPORTS
offense. However, more than an evidentiary dispute regarding the
element that differentiates the lesser from the greater offense is
required to reverse a conviction; pursuant to MCL 769.26, the
“entire cause” must be surveyed.[6]
Because a majority of this Court has indicated its belief that a
rational view of the evidence supported the requested instruction on
assault and battery, it may be said that the Court of Appeals majority
erred in its holding to the contrary. But neither the Court of Appeals
majority nor the dissenting judge, for that matter, applied the second
step of the Cornell analysis at all.7 Thus, at this juncture, a majority in
this Court has decided the harmless-error question without any prior
appellate review from the Court of Appeals. The decision to remand the
case to the trial court is therefore, in my view, premature.
The majority cites this Court’s decision in People v Silver,8 seemingly
as support for the notion that this Court can simply make a determina-
tion as to whether instructional error of this kind undermines the
reliability of the verdict without prior appellate review. But even in that
case, the Court of Appeals devoted some analysis to whether the
instructional error involved constituted harmless error.9 This is not the
case here. In the instant matter, absolutely no prior appellate review as
to whether the instructional error at issue was harmless has taken
place. And, given the nature of the facts under review, I am hard-pressed
to conclude, as the majority has, that the trial court’s failure to provide
a jury instruction on assault and battery undermined the reliability of
the verdict, entitling defendant to a new trial.
Moreover, I am not satisfied by the majority’s response that Cornell,
itself, supplies “ample precedent” for this Court’s undertaking of the
harmless-error issue without prior appellate review. I acknowledge that

6
Id. at 365-366.
7
See Haynie, 327 Mich App at 563; id. at 571-572 (GLEICHER, J.,
dissenting).
8
People v Silver, 466 Mich 386 (2002).
9
People v Silver, unpublished per curiam opinion of the Court of
Appeals, issued May 23, 2000 (Docket No. 212508), pp 2-3, rev’d 466
Mich 386 (2002). Admittedly, the Court of Appeals in Silver assessed the
harmlessness of the instructional error not via the Cornell “substantial
evidence” test, but rather by the standard set forth by this Court in
People v Lukity, 460 Mich 484, 496 (1999): “whether it is more probable
than not that a different outcome would have resulted without the
error.” Silver, unpub op at 2. This is likely because the Court of Appeals
decided Silver more than two years before this Court’s decision in
Cornell. Nevertheless, the point remains that when this Court ad-
dressed the issues presented in Silver, it did so after the Court of
Appeals had already given some measure of discussion to whether the
instructional error under review was harmless.
 ORDERS IN CASES 1105
the Court of Appeals, in Cornell, did not consider whether any instruc-
tional error was harmless.10 But at the time, Michigan jurisprudence
lacked uniformity as to the correct analysis applicable to claims of
instructional errors involving lesser included offenses.11 This Court was
accordingly tasked with clarifying the proper analytical framework in
the first instance.12 It is not at all remarkable or surprising that the
Court of Appeals failed to apply a harmless-error analysis when the
rules governing the outcome of the case were as of yet unclear. Further,
as the majority points out, this Court denied the defendant a new trial in
Cornell.13 I question whether this Court would have addressed the
harmless-error issue without prior appellate review if it had
determined—as the majority has in the instant matter—that the
defendant might have shown that he was entitled to a new trial.
I would reverse that part of the Court of Appeals’ judgment address-
ing jury instructions and would remand the case to the Court of Appeals
for consideration of whether the trial court’s instructional error was
harmless under this Court’s guidance in Cornell.
MARKMAN, J. (dissenting). As with the majority, I accept the prosecu-
tor’s concession that assault and battery constitutes a necessary lesser
included offense of assault with intent to commit murder (AWIM) and
assault with intent to do great bodily harm (AWIGBH). However, I
respectfully disagree that defendant here was entitled to an instruction
on mere assault and battery and that both the trial court and the Court
of Appeals erred by understanding differently. I further disagree with
the Court’s decision to reach the harmless-error issue rather than
remanding to the Court of Appeals for initial consideration of this issue.
An instruction on a lesser included offense is proper “if the charged
greater offense requires the jury to find a disputed factual element that
is not part of the lesser included offense and a rational view of the
evidence would support it.” People v Cornell, 466 Mich 335, 357 (2002).
For a rational view of the evidence to support the lesser offense, there
must be conflicting evidence on the element that varies in degree
between the charged offense and the lesser included offense. Id. at 361.
The element in dispute between the three aforementioned offenses is
the extent of apprehension or injury intended by the defendant. For an
assault and battery, a defendant need only intend “either to commit a

10
See People v Cornell, unpublished per curiam opinion of the Court of
Appeals, issued November 2, 1999 (Docket No. 211215), p 3, rev’d in part
466 Mich at 361.
11
Cornell, 466 Mich at 353 (“[M]any of our more recent decisions
concerning lesser included offenses have disregarded the statute and
much of the older case law. Having done so, we now must decide how to
reconcile these divergent approaches to lesser included offense instruc-
tions.”).
12
Id. at 353-361.
13
Id. at 367.
1106 505 MICHIGAN REPORTS
battery upon [the complainant] or to make [the complainant] reasonably
fear an immediate battery.” M Crim JI 17.2(3). Meanwhile, the offenses
of AWIM and AWIGBH require respectively, as their names suggest, a
showing that defendant “intended to kill the person he assaulted” or
“intended to cause great bodily harm.” M Crim JI 17.3(4), 17.7(4). “Great
bodily harm means any physical injury that could seriously harm the
health or function of the body.” M Crim JI 17.7(4).
The trial court concluded that a rational view of the evidence did not
support defendant’s having possessed only an intent to commit a battery
or place the victim in fear of a battery. And this Court reviews such a
determination for an abuse of discretion. People v Gillis, 474 Mich 105,
113 (2006) (“[A] trial court’s determination whether a jury instruction is
applicable to the facts of the case is reviewed for an abuse of discretion.”)
(quotation marks and citation omitted). “ ‘An abuse of discretion occurs
when the trial court’s decision falls outside the range of principled
outcomes.’ ” People v Anderson, 501 Mich 175, 182 (2018), quoting
People v Seewald, 499 Mich 111, 116 (2016).
After review of the evidence, I cannot agree that the trial court
abused its discretion. “Intent to cause serious harm can be inferred from
the defendant’s actions, including the use of a dangerous weapon or the
making of threats.” People v Stevens, 306 Mich App 620, 629 (2014). The
injuries a victim sustains are also indicative of a defendant’s intent to
injure. Id.; see also M Crim JI 17.7(4) (“Actual injury is not necessary,
but if there was an injury, [the jury] may consider it as evidence in
deciding whether the defendant intended to cause great bodily harm.”).
Here, moments before commencing his attack on his 76-year-old mother,
defendant stated that he “was going to have to twist [her] arms into
knots and lift [her] up and shake [her] until he got Lucifer to let go.”
Thereafter, defendant picked the victim up by the arms and shook her
violently. While the victim was calling the police, defendant punched the
victim with such force as to knock her unconscious with a single blow.
And then, while the victim lay unconscious, defendant retrieved a “fairly
heavy” wooden and metal bar with horseshoes welded onto it and struck
the victim with sufficient force to crack and splinter the bar. As a result
of the attack, the victim suffered two broken arms, a 4-centimeter cut
near her eye, a fracture to her C6 vertebra, and a 10-centimeter
laceration to her head. The police found the victim covered in blood, and
the head laceration was of sufficient severity to necessitate paramedics
inserting 17 staples into the victim’s head on the scene. Finally, as a
result of these injuries, the victim was in intensive care for several days,
in the hospital for two weeks, and in a nursing home/rehabilitation
center for several months.
Under these circumstances, I cannot agree that the trial court
reached a decision “outside the range of principled outcomes” when it
determined that a rational view of the evidence did not support
defendant intending a mere battery or placing the victim in fear of a
mere battery. Most significantly, defendant’s use of the wooden and
metal bar, after having rendered the victim unconscious, signifies a clear
intention to “seriously harm the health or function of the [victim’s]
body.” M Crim JI 17.7(4).
 ORDERS IN CASES 1107
Defendant in opposition cites two pieces of evidence. First, he points
to the victim’s own testimony that she did not believe that defendant
intended to cause her great bodily harm. Although this testimony
certainly suggests a lesser intention, it is subjective and speculative (not
to mention that the most severe of defendant’s predations occurred after
he had rendered the victim unconscious) and the trial court was not
obliged to have found this testimony to be of determinative value.1
Second, he points to the testimony of three experts who testified as to his
mental health, with two of these opining that defendant was legally
insane at the time of the offense. While this testimony certainly afforded
the jury a basis—arguably a strong basis—for concluding that defen-
dant could not form any criminal intent, these expert opinions were
ultimately rejected by the jury. Moreover, they cannot serve as a legal
basis for concluding that defendant possessed a lesser criminal intent.
For this Court has concluded that the Legislature,

by enacting a comprehensive statutory scheme setting forth the

requirements for and the effects of asserting a defense based on
either mental illness or mental retardation, . . . has signified its
intent not to allow a defendant to introduce evidence of mental
abnormalities short of legal insanity to avoid or reduce criminal
responsibility by negating specific intent. [People v Carpenter,
464 Mich 223, 226 (2001) (emphasis added).]

In other words, “the Legislature has created an all or nothing

insanity defense.” Id. at 237. And where this defense enables a jury to
conclude that a defendant is devoid of criminal liability upon a finding
of insanity, it does not allow a lessening or diminishing of the defen-
dant’s specific intent based upon his or her mental condition. Thus, the
trial judge herself would clearly have erred had she relied upon
defendant’s mental health issues and claims of insanity to conclude that
a rational view of the evidence supported the finding that defendant
intended merely to batter the victim. Neither of the pieces of evidence
relied upon by defendant gives rise to a reasonable conflict that would
transform the trial court’s exercise of judgment into an “abuse of
discretion.”
For the above reasons, I respectfully disagree that the trial court
here abused its discretion by concluding that a rational view of the
evidence did not support instructing the jury on mere assault and
battery. Accordingly, I would affirm defendant’s conviction.
However, even if I were to agree with the majority that the trial court
abused its discretion by concluding that a rational view of the evidence
did not support instructing the jury on assault and battery, I would

1
Similarly, because defendant’s attack was apparently a “spur of the
moment” action and his sister was not present to witness it, the trial
court was not obliged to accept that her testimony as to the relationship
between the defendant and the victim was particularly relevant to the
court’s assessment of what had taken place.
1108 505 MICHIGAN REPORTS
dissent nonetheless from this Court’s decision to reach the issue of
whether the trial court’s failure to instruct the jury on assault and
battery constituted harmless error. Not only do I concur with the
observations in this regard in Justice ZAHRA’s statement, but I also
question whether this issue is even properly before this Court. Our
grant order identified two questions for review: “(1) whether assault and
battery is a necessarily included offense of assault with intent to commit
murder; and if so (2) whether a rational view of the evidence in this case
could support a conviction for assault and battery.” People v Haynie, 504
Mich 974, 974 (2019). The order clearly did not identify the harmless-
error issue as one for review, and thus the majority’s reliance on the fact
that we reached the same issue in Silver and Cornell, despite the same
lack of review below, is misplaced because our orders in both of those
cases expressly identified for review whether any error in failing to
provide a lesser-included-offense instruction was harmless. People v
Silver, 463 Mich 959 (2001); People v Cornell, 463 Mich 958 (2001).
For the stated reasons, I respectfully dissent from the Court’s
determination that the trial court abused its discretion by not instruct-
ing the jury on the offense of assault and battery. And I further dissent
from its decision to reach the issue of whether any error in failing to
instruct the jury on assault and battery was harmless rather than
remanding to the Court of Appeals for initial consideration of this issue.
REAUME V TOWNSHIP OF SPRING LAKE, No. 159874; reported below: 328
Mich App 321. On May 6, 2020, the Court heard oral argument on the
application for leave to appeal the May 21, 2019 judgment of the Court
of Appeals. On order of the Court, the application for leave to appeal is
again considered and, pursuant to MCR 7.305(H)(1), in lieu of granting
leave to appeal, we vacate that part of the Court of Appeals judgment
analyzing defendant’s ordinance’s definition of single-family dwelling
and concluding that the definition excludes “temporary occupancy”
because family is defined to exclude “transitory or seasonal” relation-
ships. To the contrary, defendant’s ordinance defines dwelling to include
a “[b]uilding . . . occupied . . . as a home, residence, or sleeping place,
either permanently or temporarily . . . .” (Emphasis added.) The Court of
Appeals erred by conflating the concept of a transient relationship
between people with the concept of transient occupancy of the property.
Nonetheless, the Court of Appeals was correct insofar as it con-
cluded, in the alternative, that the ordinance’s definition of dwelling
excludes plaintiff’s property because the property is a motel, which the
ordinance defines to include a “[b]uilding . . . containing sleeping . . .
[u]nits which may or may not be independently accessible from the
outside with garage or [p]arking [s]pace located on the [l]ot and . . .
occupied by transient residents.” The term “sleeping unit” is reasonably
understood to include a bedroom, of which the property contains seven.
Although motel commonly is understood as “an establishment which
provides lodging and parking and in which the rooms are usu[ally]
accessible from an outdoor parking area,” Merriam-Webster’s Collegiate
Dictionary (11th ed), we must follow the definition provided in the
ordinance. See W S Butterfield Theatres, Inc v Dep’t of Revenue, 353
Mich 345, 350 (1958) (“We need not, indeed we must not, search afield
 ORDERS IN CASES 1109
for meanings where the act supplies its own.”). So regardless of whether
the property’s bedrooms are “accessible from an outdoor parking area,”
we conclude that the property fits the ordinance’s definition of motel
since that definition expressly allows that sleeping units “may not be
independently accessible from the outside.”
We thus conclude that plaintiff’s use of her property was not a
permitted use of a single-family dwelling under defendant’s ordinance.
For this reason, we affirm the Court of Appeals judgment.
BERNSTEIN, J. (concurring in part and dissenting in part). I concur
with the majority’s decision to vacate a portion of the Court of Appeals
opinion, because I agree that the Court of Appeals erred in conflating
transient personal relationships with a transient occupancy of property.
However, I disagree with the majority’s decision to affirm that portion of
the Court of Appeals opinion that concludes that plaintiff’s property is a
motel, and would instead reverse the Court of Appeals judgment and
remand to the trial court for further proceedings.
The majority affirms the Court of Appeals’ conclusion that plaintiff’s
property is a motel by holding that a “ ‘sleeping unit’ is reasonably
understood to include a bedroom, of which the property contains seven.”
However, the term “sleeping unit” is not defined in defendant’s ordi-
nance. The majority does not supply its own definition, and merely
states that a sleeping unit might include a bedroom, which is different
from explaining what a sleeping unit is. The dictionary defines “unit” as
“a single quantity regarded as a whole in calculation.” Merriam-
Webster’s Collegiate Dictionary (11th ed). “Bedroom” is defined as “a
room furnished with a bed and intended primarily for sleeping.” Id. The
definition of “unit” suggests that such a thing is used or rented
separately from other units, as each unit is regarded as a whole. This
understanding of a unit as comprising a complete entity makes sense in
the context of a motel, where sleeping units can be rented separately, as
individual units; although multiple units may be rented at once, they
are rented independently from one another, unlike rooms in a single
suite, which are rented together as a single unit.
As a result, it cannot be said that plaintiff’s property contained
“sleeping units” because there is nothing in the record that suggests that
her property had various independent units that were “whole” on their
own.1 Plaintiff’s property was originally designed as a house for a single
family, and it was used and rented in its entirety, as a single unit
altogether, and not as a collection of seven separate sleeping units.

1
Plaintiff at one point advertised her property as two separate units,
but changed the listing to one unit before either ordinance was passed.
See MCL 125.3208(1) (“If the use of a dwelling, building, or structure . . .
is lawful at the time of enactment of a zoning ordinance or an
amendment to a zoning ordinance, then that use may be continued
although the use does not conform to the zoning ordinance or amend-
ment.”)
1110 505 MICHIGAN REPORTS
Because I believe that plaintiff’s property is not a “motel,” I would
remand to the trial court to determine if plaintiff otherwise met her
burden for establishing prior nonconforming use. Heath Twp v Sall, 442
Mich 434, 444-446 (1993).
DEPARTMENT OF HEALTH AND HUMAN SERVICES V MANKE, No. 161394;
Court of Appeals No. 353607. Pursuant to MCR 7.305(H)(1), in lieu of
granting leave to appeal, we vacate the order of the Court of Appeals and
the May 29, 2020 order of the Shiawassee Circuit Court, and we remand
this case to the Court of Appeals for plenary consideration. The motion
for stay is denied as moot.
VIVIANO, J. (concurring). I agree with the Court’s order remanding
this case to the Court of Appeals for plenary consideration. I write
separately to briefly highlight some of the issues that will need to
be addressed on remand. First, it appears patently clear that two
members of the Court of Appeals motion panel have no power to grant
peremptory relief. See MCR 7.211(C)(4) (“The decision to grant a motion
for peremptory reversal must be unanimous.”). Doing so over Judge
SWARTZLE’s explicit objection (and without responding to it) is inexpli-
cable.1 In addition, the majority decided the important constitutional
issues of first impression raised by defendant without plenary consid-
eration, full briefing, oral argument, or an opportunity for amici curiae
to file briefs. And it allowed the Department of Health and Human
Services to argue these points as a basis for reversal even though the
Department never responded to these arguments in the trial court.
Finally, the Court of Appeals should address whether plaintiff’s motion
for a preliminary injunction is rendered moot now that the Governor has
ordered that barbershops can open statewide on June 15, 2020.2

1
The order at issue also may be invalid for another reason: The
Department of Health and Human Services (DHHS) did not file a
motion requesting peremptory reversal, and the Court does not have the
power to grant such relief sua sponte under the applicable court rule.
See MCR 7.211(C)(4) (“The appellant may file a motion for peremptory
reversal on the ground that reversible error is so manifest that an
immediate reversal of the judgment or order appealed from should be
granted without formal argument or submission.”). Cf. Dawley v Hall,
501 Mich 166 (2018) (holding that a rule allowing venue change based
on a defendant’s motion or the court’s own initiative did not permit
venue change based on a plaintiff’s motion). In this case, although the
“relief requested” section of its application did request an order sum-
marily reversing the trial court, the DHHS never filed a motion for
peremptory reversal under MCR 7.211(C)(4) (despite having previously
filed a motion for immediate consideration under MCR 7.211(C)(6)).
2
Today, the Governor signed an executive order allowing personal
services businesses including barber shops to open statewide on
June 15. See Executive Order No. 2020-115 (allowing the reopening of
“hair salons . . . and similar establishments”).
 ORDERS IN CASES 1111
It is incumbent on the courts to ensure decisions are made according
to the rule of law, not hysteria. Here, in addition to entering an order
whose validity is highly suspect, the Court of Appeals majority took the
extraordinary step of directing the trial court to take immediate action
despite the fact that an application for leave had already been filed in
our Court.3 Typically, the filing of an application in our Court automati-
cally “stays proceedings on remand unless the Court of Appeals or the
Supreme Court orders otherwise.” MCR 7.305(C)(7)(a). Whether it did
so wittingly or unwittingly, the Court of Appeals appears to have
ordered this case to proceed despite the filing of an application in our
Court when the Court of Appeals gave its May 29, 2020 order immediate
effect.4
Courts decide legal questions that arise in the cases that come before
us according to the rule of law. One hopes that this great principle—
essential to any free society, including ours—will not itself become yet
another casualty of COVID-19.5

3
Defendant’s application was filed in our Court on May 28, 2020. The
next day, on May 29, the Court of Appeals ordered the trial court to
immediately enter a very specific preliminary injunction order (“The trial
court is ORDERED to immediately sign and enter a preliminary injunc-
tion order . . . . The body of the preliminary injunction order entered by
the trial court shall include verbatim the language of the proposed
preliminary injunction order submitted by plaintiff-appellant. . . . We
continue to retain jurisdiction to verify immediate entry of the prelimi-
nary injunction by the trial court.”). Dep’t of Health and Human Servs v
Manke, unpublished order of the Court of Appeals, entered May 29, 2020
(Docket No. 353607). The same day, the trial court complied with this
highly suspect directive by entering a preliminary injunction and indi-
cating that “this Order will be enforced through the Court’s general
contempt powers. MCL 600.1711.” And now, according to published news
reports, the Attorney General filed a motion this week seeking to have
defendant held in contempt for his failure to comply with the trial court’s
order. Acosta, MLive, Owosso Barber Says he Won’t be Bullied as Michi-
gan AG’s Office Files Motion to Find him in Contempt of Court
<https://www.mlive.com/news/flint/2020/06/owosso-barber-says-he-wont-
be-bullied-as-michigan-ags-office-files-motion-to-find-him-in-contempt-of
-court.html> (accessed June 4, 2020) [https://perma.cc/H29K-WBSB].
4
It is not clear to me whether MCR 7.305(C)(7) authorizes the Court
of Appeals to lift the automatic stay once a case has reached our Court
(or whether the Court of Appeals’ order was sufficient to do so, since it
did not even reference this rule).
5
I am reminded of the famous exchange between Sir Thomas More
and William Roper in A Man for All Seasons:
ROPER So now you’d give the Devil benefit of law!
1112 505 MICHIGAN REPORTS
Reconsideration Granted June 5, 2020:

PEOPLE V RAJPUT, No. 158866; Court of Appeals No. 339117. By order

of March 23, 2020, the prosecuting attorney was directed to answer the
motion for reconsideration of this Court’s January 24, 2020 opinion. On
order of the Court, the answer having been received, the motion is again
considered, and it is granted. In light of the prosecutor’s concession on
reconsideration, the next to last paragraph of the Court’s opinion is
amended to read as follows:
We reverse the Court of Appeals’ holdings that defendant was
not entitled to his requested self-defense instruction and that
Carr’s testimony was irrelevant. We remand this case to the
Court of Appeals to address whether the trial court’s erroneous
denial of defendant’s requested self-defense instruction was
harmless beyond a reasonable doubt. See People v Anderson
(After Remand), 446 Mich 392 (1994); People v Carines, 460 Mich
750 (1999). The Court of Appeals shall also address whether
Carr’s investigative-subpoena testimony was admissible under
MRE 804(b)(1) and whether Clay’s statement to the victim was
admissible either as an excited utterance under MRE 803(2) or
because it was not hearsay under MRE 801(c). If the panel
concludes that the evidence was admissible, it shall consider
whether exclusion of Carr’s testimony was harmless or whether it
is more probable than not that the error was outcome-
determinative. People v Lukity, 460 Mich 484, 495-496 (1999).

Reconsideration Granted and Order Directing Oral Argument in a Case

Pending on Application for Leave to Appeal Entered June 5, 2020:

PEOPLE V WAFER, No. 153828; Court of Appeals No. 324018. By order

of April 26, 2019, the motion for reconsideration of this Court’s March 9,
2018 order was held in abeyance for People v Price (Docket No. 156180).
On the Court’s own motion, the motion for reconsideration of this
Court’s March 9, 2018 order is again considered, and it is granted with

MORE Yes. What would you do? Cut a great road through the law
to get after the Devil?
ROPER I’d cut down every law in England to do that!
MORE Oh? And when the last law was down, and the Devil turned
round on you—where would you hide, Roper, the laws all
being flat? This country’s planted thick with laws from
coast to coast—man’s laws, not God’s—and if you cut them
down—and you’re just the man to do it—d’you really think
you could stand upright in the winds that would blow then?
Yes, I’d give the Devil benefit of law, for my own safety’s
sake. [Bolt, A Man for All Seasons (New York: Vintage
Books, 1995), p 66 (stage directions omitted).]
 ORDERS IN CASES 1113
respect to the defendant’s double jeopardy issue. We amend this Court’s
March 9, 2018 order to read as follows:
On October 12, 2017, the Court heard oral argument on the
application for leave to appeal the April 5, 2016 judgment of the
Court of Appeals. On order of the Court, the application for leave
to appeal is again considered, and it is denied, with respect to the
defendant’s jury instruction and prosecutorial misconduct issues,
because we are not persuaded that those questions presented
should be reviewed by this Court. That part of the application for
leave to appeal raising a double jeopardy issue remains pending.

We further order that Justice MARKMAN’s accompanying dissenting

statement to the Court’s March 9, 2018 order remains unchanged.
We direct the Clerk to schedule oral argument on that part of the
defendant’s application for leave to appeal addressing double jeopardy.
MCR 7.305(H)(1). The appellant shall file a supplemental brief within 42
days of the date of this order addressing whether the defendant’s
convictions for second-degree murder, MCL 750.317, and statutory man-
slaughter, MCL 750.329(1), violate constitutional prohibitions against
double jeopardy. See People v Miller, 498 Mich 13 (2015). In addition to
the brief, the appellant shall electronically file an appendix conforming to
MCR 7.312(D)(2). In the brief, citations to the record must provide the
appendix page numbers as required by MCR 7.312(B)(1). The appellee
shall file a supplemental brief within 21 days of being served with the
appellant’s brief. The appellee shall also electronically file an appendix, or
in the alternative, stipulate to the use of the appendix filed by the
appellant. A reply, if any, must be filed by the appellant within 14 days of
being served with the appellee’s brief. The parties should not submit mere
restatements of their application papers.
We direct the Clerk to schedule the oral argument in this case for the
same future session of the Court when it will hear oral argument in
People v Davis (Docket No. 160775).
The Prosecuting Attorneys Association of Michigan and the Criminal
Defense Attorneys of Michigan are invited to file briefs amicus curiae.
Other persons or groups interested in the determination of the issue
presented in this case may move the Court for permission to file briefs
amicus curiae.

Order Granting Oral Argument in Case Pending on Application for

Leave to Appeal Entered June 5, 2020:

PEOPLE V JOEL DAVIS, No. 160775; Court of Appeals No. 332081. The
appellant shall file a supplemental brief within 42 days of the date of
this order addressing: (1) whether the defendant’s convictions under
MCL 750.81a(3) and MCL 750.84 violate constitutional prohibitions
against double jeopardy, see People v Miller, 498 Mich 13 (2015); and
(2) if so, whether the defendant is entitled to relief. See People v Carines,
460 Mich 750, 763 (1999). In addition to the brief, the appellant shall
electronically file an appendix conforming to MCR 7.312(D)(2). In the
1114 505 MICHIGAN REPORTS
brief, citations to the record must provide the appendix page numbers as
required by MCR 7.312(B)(1). The appellee shall file a supplemental
brief within 21 days of being served with the appellant’s brief. The
appellee shall also electronically file an appendix, or in the alternative,
stipulate to the use of the appendix filed by the appellant. A reply, if any,
must be filed by the appellant within 14 days of being served with the
appellee’s brief. The parties should not submit mere restatements of
their application papers.
We direct the Clerk to schedule the oral argument in this case for the
same future session of the Court when it will hear oral argument in
People v Wafer (Docket No. 153828).
The Prosecuting Attorneys Association of Michigan and the Criminal
Defense Attorneys of Michigan are invited to file briefs amicus curiae.
Other persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae.

Leave to Appeal Denied June 5, 2020:

PEOPLE V CHRIS DAVIS, No. 161171; Court of Appeals No. 352819.

Leave to Appeal Denied June 12, 2020:

PEOPLE V MATHEWS, No. 158102; reported below: 324 Mich App 416. On
October 3, 2019, the Court heard oral argument on the application for
leave to appeal the May 22, 2018 judgment of the Court of Appeals. On
order of the Court, the application is again considered, and it is denied,
because we are not persuaded that the question presented should be
reviewed by this Court.
VIVIANO, J. (dissenting). I dissent from the majority’s decision to deny
leave in this case because I believe that the Court of Appeals erred in
concluding that the warnings provided to defendant were insufficient
under Miranda v Arizona, 384 US 436 (1966), and its progeny. I would
reverse.

Defendant Laricca Mathews was charged with open murder,

MCL 750.316, and related firearms charges arising out of the shooting
death of her boyfriend, Gabriel Dumas. Defendant called 911 and told
the dispatcher that she had shot Dumas. After the police arrived at the
scene, she was taken into custody and transported to the Wixom Police
Department. Defendant was interviewed twice while at the police
station. Both interviews were videotaped, as required by MCL 763.8(2).
During the first interview, Detective Brian Stowinsky provided defen-
dant with an advice-of-rights form, which stated:
 ORDERS IN CASES 1115
Before any questions are asked of you, you should know:
(1) you have a right to remain silent; (2) anything you say may be
used against you; (3) you have a right to a lawyer, and (4) if you
cannot afford a lawyer, one will be provided free.
I understand what my rights are and am willing to talk.

Detective Stowinsky orally reviewed the advice-of-rights form with

defendant, and the following exchange took place:

[Detective Stowinsky]: Ok, um, I’m going to review these, ok?

[Defendant]: Uh hmm.
[Detective Stowinsky]: I’m going to read these to you.
[Defendant]: Uh hmm.
[Detective Stowinsky]: Um, before I question, start asking you,
you should know that you have a right to remain silent.
[Defendant]: Uh hmm.
[Detective Stowinsky]: Anything you say maybe [sic] used
against you. You have a right to a lawyer, if you cannot afford a
lawyer, one will be provided for free. Do you understand your
rights?
[Defendant]: Yes.
[Detective Stowinsky]: Do you want to talk with me?
[Defendant]: Yeah, we can talk.
Defendant signed the form, and Detective Stowinsky proceeded to
interview her. During the interview, defendant claimed that she and
Dumas had been fighting and that she had shot Dumas in self-defense
after Dumas attacked her.
Later that day, Sergeant Michael DesRosiers conducted a second
interview with defendant. Before the interview, the following exchange
took place:
[Sergeant DesRosiers]: . . . Alright, so um, Detective Stowinsky,
remember he talked about your rights and everything?
[Defendant]: Uh hmm.
[Sergeant DesRosiers]: Same thing applies. Um, you don’t, you
don’t have to even talk to me if you don’t want to. You can get an
attorney um, if you can’t afford one, we’ll make sure you get one.
[Defendant]: Ok.
[Sergeant DesRosiers]: So, um, we’re just continuing the
interview that you started with him. I just looked over the
statement and have a couple questions about it. Um, so I’m
looking at the statement and the problem I have, and you can stop
me at any time you want, is, it’s from the things in the statement
don’t necessarily match up with the evidence we found.
During the second interview, defendant claimed that she shot the victim
when they were “face to face.” When Sergeant DesRosiers told defen-
dant that Dumas had been shot in the back of the head, defendant
1116 505 MICHIGAN REPORTS
speculated that the bullet may have ricocheted off the wall. She also
suggested the shooting may have been an accident.
Defendant filed a motion to suppress the statements that she made
to police arguing, in pertinent part, that the police failed to advise her
that she had the right to have an attorney present both before and
during questioning.1 The trial court granted defendant’s motion, con-
cluding that the police had failed to inform defendant that she had the
right to have an attorney present during the interrogation. The Court of
Appeals initially denied the prosecution’s interlocutory application for
leave to appeal, but on remand from this Court, in a split decision, the
Court of Appeals affirmed the trial court’s ruling that suppressed
defendant’s statements. After recognizing the conflicting authority on
the issue, the Court of Appeals agreed with the trial court, holding that
“a general warning regarding a ‘right to a lawyer’ does not comply with
the dictates of Miranda.” People v Mathews, 324 Mich App 416, 429
(2018). Because there was no binding caselaw addressing this issue, the
Court of Appeals undertook a lengthy and thorough review of its own
cases, along with cases from the federal circuits and our sister state
courts. Ultimately, the Court of Appeals majority decided to follow its
own prior decisions, see, e.g., People v Whisenant, 11 Mich App 432, 434
(1968),2 and those of the federal circuit courts, holding that a defendant
must be specifically advised of the right to the presence of an attorney
during questioning. See, e.g., United States v Noti, 731 F2d 610, 615 (CA
9, 1984). The Court of Appeals described the decisions of other federal
circuits holding that general warnings were sufficient as “disingenuous
in light of Miranda’s mandate for clear and unambiguous warnings[.]”
Mathews, 324 Mich App at 438.

II

Miranda has been called a “pathmarking decision.” Florida v Powell,

559 US 50, 53 (2010). It ruled that “an individual must be ‘clearly
informed,’ prior to custodial questioning, that he has, among other
rights, ‘the right to consult with a lawyer and to have the lawyer with
him during interrogation.’ ” Id., quoting Miranda, 384 US at 471. It is
beyond dispute, however, that Miranda was not intended, and has not
been interpreted, as establishing a precise incantation that must be
given prior to a custodial interrogation. Miranda itself said that either
the warnings it laid down or “a fully effective equivalent” were required.

1
Defendant also contended that the statements should be suppressed
because the police failed to advise her that she could terminate the
questioning at any point. Although the trial court did not address this
argument, the Court of Appeals rejected it and defendant has not
appealed that ruling.
2
Other opinions from the Court of Appeals followed the cursory
analysis in Whisenant. See People v Jourdan, 14 Mich App 743 (1968);
People v Hopper, 21 Mich App 276 (1970).
 ORDERS IN CASES 1117
Miranda, 384 US at 476; see also Rhode Island v Innis, 446 US 291, 297
(1980) (noting that the safeguards include the “Miranda warnings . . . or
their equivalent”).
The Supreme Court’s post-Miranda pronouncements on the topic
similarly make clear that the “Court has not dictated the words in which
the essential information must be conveyed.” Powell, 559 US at 60; see
also California v Prysock, 453 US 355 (1981) (“This Court has never
indicated that the ‘rigidity’ of Miranda extends to the precise formulation
of the warnings given a criminal defendant. . . . Quite the contrary,
Miranda itself indicated that no talismanic incantation was required to
satisfy its strictures.”). The question is whether the warning that was
given reasonably conveyed the rights specified in Miranda, and in making
this determination the warning need not be interpreted as though it were
a legal document. Duckworth v Eagan, 492 US 195, 203 (1989).
With regard to the specific warning at issue here—the notice of the
right to an attorney—the Supreme Court has not established that the
warning must expressly notify the suspect of the right to consult an
attorney before questioning or have one present during it. Some com-
ments in Miranda suggest such a requirement. See Miranda, 384 US at
471 (“Accordingly we hold that an individual held for interrogation must
be clearly informed that he has the right to consult with a lawyer and to
have the lawyer with him during interrogation . . . .”). But other state-
ments mentioned the right to an attorney’s “presence” without specifying
when and where the “presence” would occur.3 And when the Court gave
an example of satisfactory warning language that complied with the
standards it had set forth, it chose (and even lauded as “exemplary”) the
standard warning that was given by the Federal Bureau of Investiga-
tion (FBI). Miranda, 384 US at 483. This is important because the FBI’s
practice was to give only the general warning “that the person has . . . a
right to counsel,” which included no information regarding when the
right applied. Id. at 484.4

3
See id. at 444 (“Prior to any questioning, the person must be warned
that . . . he has a right to the presence of an attorney . . . .”); id. at 479 (An
individual in custodial interrogation “must be warned prior to any
questioning that . . . he has the right to the presence of an attorney.”); see
generally United States v Clayton, 937 F3d 630, 639 (CA 6, 2019)
(discussing the ambiguity surrounding Miranda’s use of “presence”);
Commonwealth v LaJoie, 95 Mass App 10, 15 (2019) (“But when it came
time to summarize what a suspect needed to be told, the Miranda opinion
did not formulate the warning in terms of a right to counsel ‘during
questioning’; rather, the Court in Miranda used the language, the ‘right
to the presence of an attorney,’ without any temporal component.”).
4
The warning given more recently by the FBI is more specific. See
FBI, Legal Handbook for Special Agents (2003), p 93 (quoting Form
FD-395, which notes the person’s right to “talk to a lawyer for advice
before” questioning, to “have a lawyer with [him or her] during ques-
1118 505 MICHIGAN REPORTS
As courts have recognized, Miranda’s various statements thus create
some ambiguity.5 And, while it appears the discussion of the FBI
warnings was not necessary to decide the case,6 the bottom line is that
the Court specifically approved a warning that lacked any explicit
reference to the time when the right to counsel attached, i.e., that it
attached before or during the interrogation. The Sixth Circuit Court of
Appeals explained it well:

To be sure, Miranda clarified that “presence” includes the right to

consult with an attorney before and during questioning. But
Miranda did not require a warning exactly to that effect. Case in
point: Miranda acknowledged that the warnings employed by the
FBI at the time of its decision were “consistent with the procedure
which we delineate today.” And those warnings, while advising of
the right to counsel, conspicuously did not state expressly that
counsel may be present during interrogation. [United States v
Clayton, 937 F3d 630, 639 (CA 6, 2019) (citation omitted).]

See also United States v Lamia, 429 F2d 373, 376-377 (CA 2, 1970)
(relying on Miranda’s approval of the FBI warnings); cf. People of
Territory of Guam v Snaer, 758 F2d 1341, 1342 (CA 9, 1985) (“The
Supreme Court in Miranda . . . , although making clear that one does
have the right to consult with counsel before questioning, . . . is ambigu-

tioning,” and to have a lawyer appointed before questioning if the suspect

cannot afford one), available at <https://vault.fbi.gov/Legal%20Handbook
%20for%20FBI%20Special%20Agents/Legal%20Handbook%20for%20FBI
FBI%20Special%20Agents%20Part%201%20of%201/view> (accessed
May 29, 2020) [https://perma.cc/NK9W-35PF].
5
This point was not lost on the dissenters, who questioned how the
FBI’s warnings squared with the other statements in the majority’s
decision. See, e.g., id. at 500 n 3 (Clark, J., concurring in the result of a
companion case and dissenting in Miranda) (noting that the FBI’s
warning regarding appointment of counsel was not as broad as the rule
expressed by the majority); id. at 521 (Harlan, J., dissenting) (stating
that while “[h]eaviest reliance is placed on the FBI practice, . . . the FBI
falls sensibly short of the Court’s formalistic rules.”).
6
See Miranda, 384 US at 521 n 19 (Harlan, J., dissenting) (noting
that this portion of the opinion was “obiter dictum”). To the extent this
portion of Miranda was dicta, it had plentiful company in the opinion,
much of which has been followed as binding nonetheless. See Faheem-El
v Klincar, 841 F2d 712, 730 (CA 7, 1988) (Easterbrook, J., concurring)
(“The details of Miranda . . . could be disregarded [as dicta] on the
ground that Ernesto Miranda had not been given any warning, so the
Court could not pronounce on the consequences of giving three but not
four of the warnings on its list.”). As I explain below, however, even if
dicta, the passages on the FBI warnings are particularly meaningful.
 ORDERS IN CASES 1119
ous as to how explicitly the person must be warned of that right.”). And
Miranda was not the only time the Supreme Court has endorsed a
general advisement of the right to an attorney bereft of any temporal
elements. In Oregon v Elstad, 470 US 298, 315 n 4 (1985), which
addressed other issues, the Court stated that a warning that the suspect
had the right to “consult an attorney at state expense” was “clear
and comprehensive” and a part of a “careful administering of Miranda
warnings.”
In other cases, the Supreme Court has approved warnings that
offered less than was encompassed in Miranda’s more expansive pas-
sages. These cases instead focus on whether the warnings indicated
limitations on the right to counsel. In California v Prysock, for example,
the Court approved a warning that the defendant had a “right to talk to
a lawyer before [being] questioned.” Prysock, 453 US at 356. Miranda
was satisfied because “nothing in the warnings . . . suggested any
limitation on the right to the presence of appointed counsel different
from the clearly conveyed rights to a lawyer in general[.]” Id. at 360-361.
Similarly, in Duckworth v Eagan, the defendant had been warned, “You
have a right to talk to a lawyer for advice before we ask you any
questions, and to have him with you during questioning. . . . We have no
way of giving you a lawyer, but one will be appointed for you, if you wish,
if and when you go to court.” Duckworth, 492 US at 198 (emphasis and
quotation marks omitted). The Court concluded that those warnings,
when taken together, satisfied Miranda because they informed the
defendant of his rights and did not specifically inform defendant that the
right to counsel only attached during trial. Id. at 204-205. Most recently,
in Florida v Powell, the Court upheld a warning that informed the
defendant of his right to “talk to a lawyer before answering any of our
questions” and that he could invoke his rights at any time but did not
expressly state that the defendant could have the lawyer present during
the interrogation. Powell, 559 US at 54 (quotation marks omitted). A
commonsense interpretation of the warning, the Court concluded,
conveyed the defendant’s rights. Id. at 62-64.
Among other courts, a split exists over whether the advisement must
expressly mention that the right to a lawyer applies before or during the
interrogation.7 Some courts have concluded that the right to have an
attorney present at these times is independently critical and not
adequately conveyed by a notice that mentions neither period or only
one but not the other. See, e.g., United States v Noti, 731 F2d 610, 615

7
See generally McMahon, Necessity That Miranda Warnings Include
Express Reference to Right to Have Attorney Present During Interroga-
tion, 77 ALR Fed 123 (2020 update) (collecting and commenting on cases
discussing presence of attorney during the interrogation); Comment,
Adding (Or Reaffirming) A Temporal Element to the Miranda Warning
“You Have the Right to an Attorney,” 90 Marq L Rev 1009, 1019-1024
(2007) (noting the circuit split as well as intracircuit conflict and tracing
the source to Miranda’s disparate statements).
1120 505 MICHIGAN REPORTS
(CA 9, 1984) (“There are substantial practical reasons for requiring that
defendants be advised of their right to counsel during as well as before
questioning.”).8
Other cases, however, find that general warnings—i.e., those that do
not expressly describe part or all of the temporal scope of the right to

8
See also United States v Tillman, 963 F2d 137, 141 (CA 6, 1992)
holding that a general warning was inadequate because “the police
failed to convey to defendant that he had the right to an attorney both
before, during and after questioning”); United States v Anthon, 648 F2d
669, 672 (CA 10, 1981) (holding that a warning which failed to, among
other things, “advise[] that [the defendant’s] right to counsel encom-
passed . . . the right to have counsel present during any questioning”
violated Miranda); Windsor v United States, 389 F2d 530, 533 (CA 5,
1968) (“Merely telling [an individual being questioned] that he could
speak with an attorney or anyone else before he said anything at all is
not the same as informing him that he is entitled to the presence of an
attorney during interrogation . . . .”); State v Serna, 2018-NMCA-074,
¶ 21 (NM App, 2018) (concluding “that Miranda requires that a person
be warned, at least implicitly, that they have a right to counsel prior to
questioning” and finding that no such warning was given in the case);
cf. United States v Wysinger, 683 F3d 784, 798-800 (CA 7, 2012)
(concluding that a warning appearing to give the defendant a choice of
when he could have a lawyer—that he “had the ‘right to talk to a lawyer
for advice before we ask any questions or have . . . an attorney with you
during questioning’ ’’—violated Miranda); State v McNeely, 162 Idaho
413, 414, 416-417 (2017) (concluding that an advisement of a “right to an
attorney . . . [t]o help you with—stuff” did not satisfy Miranda).
Some of these cases warrant additional comment, as the state of the
law in these circuits is not entirely clear. Recently, the Sixth Circuit has
explained that other errors in Tillman—specifically, the failure to advise
that the defendant’s statements could be used against him—were the
thrust of the case, and thus its brief comment on the warning related to
the attorney was “not persuasive.” Mitchell v MacLaren, 933 F3d 526, 535
(CA 6, 2019) (habeas proceedings). Additionally, the Ninth Circuit has
subsequently held that a defendant “need not have been informed
explicitly of his right to consult with counsel prior to questioning” when
the warning adequately conveyed that right by stating he could have
counsel appointed before the interrogation and present with him during
it. United States v Loucious, 847 F3d 1146, 1151 (CA 9, 2017); see also
Sweeney v United States, 408 F2d 121, 124 (CA 9, 1969) (finding sufficient
a general warning that the defendant “was entitled to an attorney”
because “following, as it did, immediately on the warning as to the right
to remain silent and the risk in not doing so, would, we think, be taken by
most persons to refer to the contemplated interrogation, not to some other
time”).
 ORDERS IN CASES 1121
counsel—suffice. These courts have offered compelling reasons that
reflect the Supreme Court’s commonsense approach and that I find more
persuasive. One threshold factor that courts have found significant is
whether a suspect was given preinterrogation notice “that the warnings
that followed were a prerequisite to any interrogation . . . .” Carter v
People, 398 P3d 124, 128 (Colo, 2017). At a more fundamental level,
these courts embrace the unremarkable proposition that because “an
unqualified statement lacks qualifications, all that police officers need
do is convey the general rights enumerated in Miranda.” United States
v Frankson, 83 F3d 79, 82 (CA 4, 1996). In other words, advising of the
“right to counsel,” without qualifications, conveys that the right obtains
before and during the interrogation.9 A related factor in these cases is
that the warnings did not express “any temporal limitation that might

9
See United States v Caldwell, 954 F2d 496, 502 (CA 8, 1992) (“When
the only claimed deficiency is that of generality, the teaching of
Duckworth that we are not construing a will or defining the terms of an
easement convinces us that we cannot hold the warning in this case
amounts to plain error.”); Lamia, 429 F2d at 376-377 (“Lamia had been
told without qualification that he had the right to an attorney and that
one would be appointed if he could not afford one. Viewing this
statement in context, Lamia having just been informed that he did not
have to make any statement to the agents outside of the bar, Lamia was
effectively warned that he need not make any statement until he had
the advice of an attorney.”) (emphasis added); cf. State v Figueroa, 146
A3d 427, 432 (Me, 2016) (noting, where the advisement referenced that
the defendant already had an attorney, a general warning of “a right to
an attorney” was “communicated an unqualified right to counsel” that
could be invoked at any time).
This conclusion—that unqualified statements do not expressly or
impliedly convey qualifications—not only comports with common sense,
but it also makes sense under a well-known linguistic theory of
conversation developed by H. P. Grice. He posited that participants in
conversations generally adhere to the maxim of “Quantity,” by which
they expect that the information contained in statements will “be
neither more nor less than is required.” Grice, Logic and Conversation,
in 3 Syntax and Semantics: Speech Acts (New York: Academic Press,
1975), p 47. This means that contributions to the conversation will not
be “overinformative” because “overinformativeness may be confusing in
that it is liable to raise side issues; and there may also be an indirect
effect, in that the hearers may be misled as a result of thinking that
there is some particular POINT in the provision of the excess of
information.” Id. at 46. Thus, for example, the statement “Jane has two
children” does not implicate that Jane has more than two children, even
though the statement would remain true if she had a third child.
Kaplan, Linguistics and Law (New York: Routledge, Taylor & Francis
1122 505 MICHIGAN REPORTS
even colorably be misunderstood to restrict the exercise of [the] right” to
counsel in the interrogation. Carter, 398 P3d at 127.10 Even so, the mere
possibility of misunderstanding does not disqualify the warning, as the
advisement in Powell was upheld despite risking confusion as to
whether the right pertained to the interrogation itself. Id.11 And,
critically, this group of cases also cites Miranda’s approval of the FBI
warnings. See Clayton, 937 F3d at 639.12 This approach thus trusts that
Miranda meant what it said regarding the FBI warnings. As I explain
below, this is the proper way to interpret Miranda. Under these
rationales, numerous courts have upheld advisements like that in the
present case, i.e., without any express reference to the temporal scope of
the right to counsel.13

Group, 2020), p 7. In the same way, an unconditioned assertion that a

suspect has the right to counsel does not implicate a temporal restriction
on the right.
10
See also United States v Warren, 642 F3d 182, 186 (CA 3, 2011)
(“[The defendant] offers no rationale for a reasonable person’s belief that
the clear, unmodified statement ‘[y]ou have the right to an attorney’
would be regarded as time-limited.”); State v King, ___ So 3d ___, ___
(La, 2020) (Case No. 2019-KK-01332), slip op at 6-7 (“The unelaborated
upon warning given in the present case, which lacked any temporal
aspect at all, implied no limitation on the right to counsel.”).
11
Justice Stevens’s dissent in Powell recognized this fact, stating that
although he was “doubtful that warning a suspect of his ‘right to
counsel,’ without more, reasonably conveys a suspect’s full rights under
Miranda, . . . at least such a general warning does not include the same
sort of misleading temporal limitation as in Powell’s warning.” Powell,
559 US at 73 n 8 (Stevens, J., dissenting).
12
See also Warren, 642 F3d at 185 (noting that, in light of Miranda’s
use of the FBI advisement, “it cannot be said that the Miranda court
regarded an express reference to the temporal durability of this right as
elemental to a valid warning”).
13
See United States v Nash, 739 F Appx 762, 765 (CA 4, 2018) (“[T]he
phrase ‘you have a right to an attorney,’ under these circumstances,
sufficiently advised Nash of his general right to consult with an attorney
before and during the interrogation.”); Frankson, 83 F3d at 81-82
(upholding advisement of “the right to an attorney”); United States v
Adams, 484 F2d 357, 361 (CA 7, 1973) (finding sufficient a warning that
the suspect had the “right to counsel, and if they haven’t got funds to
have counsel, . . . the court will see that they are properly defended”)
(quotation marks omitted); Lamia, 429 F2d at 377-378 (upholding
warning that defendant had the “right to an attorney”); King, ___ So 3d
at ___, slip op at 6-7 (holding that similar warning, without temporal
elements, sufficed); State v Nave, 284 Neb 477, 495 (2012) (citing with
 ORDERS IN CASES 1123
My conclusion is also supported by the fact that temporal details are
not required to impart the warning concerning the paramount right to
remain silent. Even Miranda’s most detailed renditions of the warnings
never suggested that the police had to specify when a suspect could
exercise the unqualified “right to remain silent.” See, e.g., Miranda, 384
US at 444, 467-468, 479. That an unqualified statement reasonably
conveys the full breadth of the right to remain silent suggests that the
same is enough for the right to an attorney: the former right is at the
core of Miranda’s protection, whereas the latter is a means of protecting
that core right.14 Thus, it would make little sense, linguistically or
logically, to demand additional details about the auxiliary right but not
the fundamental right it was designed to protect. Cf. Carter, 398 P3d

approval the court’s past cases upholding warnings that made no

mention of a “temporal element” or mentioned only the right to have
counsel at the interrogation); Eubanks v State, 240 Ga 166, 168 (1977)
(“It is implicit in this [general] instruction [of the “right to an attorney”
along with the other basic rights] that if the suspect desired an attorney
the interrogation would cease until an attorney was present.”); People v
Walton, 199 Ill App 3d 341, 344 (1990) (finding that specifically inform-
ing the suspect “that he ‘had a right to consult with a lawyer’ ”
reasonably conveyed the rights as mandated by Miranda); cf. Figueroa,
146 A3d at 432 (concluding that a general warning was sufficient under
the circumstances and noting that the advisement also indicated that
the defendant already had an attorney).
Other courts have upheld similar, but slightly more detailed warnings.
See Warren, 642 F3d at 184, 186-187 (upholding warning that “You have
the right to an attorney. If you cannot afford to hire an attorney, one will
be appointed to represent you without charge before any questioning if
you wish”) (quotation marks omitted); Rigterink v State, 66 So 3d 866, 893
(Fla, 2011) (“Hence, by advising Rigterink that he may have counsel
‘present prior to questioning,’ the police reasonably conveyed to Rigter-
ink . . . that counsel, if Rigterink so desired, would have been ‘present’
with Rigterink both before and during the custodial interrogation.”);
LaJoie, 95 Mass App at 11, 16-17 (upholding warning that the defendant
had the right to counsel and if he could not afford one, an attorney would
be appointed “prior to any questioning”) (quotation marks omitted).
14
See Miranda, 384 US at 469 (explaining that the Court’s “aim” in
requiring a warning about the right to counsel “is to assure that the
individual’s right to choose between silence and speech remains unfet-
tered throughout the interrogation process”); Adding (Or Reaffirming) A
Temporal Element to the Miranda Warning, 90 Marq L Rev at 1027
(“[T]he package of [Miranda] warnings is intended to convey to the
suspect that he does not have to talk if he does not desire to. The
attorney’s presence is only a means to an end, not an end in itself”
because it “safeguard[s] the suspect’s right to remain silent.”).
1124 505 MICHIGAN REPORTS
at 128 (“[I]t would be highly counterintuitive for a reasonable suspect
in a custodial setting, who has just been informed that the police
cannot talk to him until after they advise him of his rights to remain
silent and to have an attorney, to understand that an interrogation
may then proceed without permitting him to exercise either of those
rights.”). Indeed, even the Court of Appeals in this case found that the
police did not need to specifically inform defendant that she was able
at any time to invoke her right to remain silent. See Mathews, 324
Mich App at 428, quoting Miranda, 384 US at 467-468 (“An individual
who has been informed in ‘clear and unequivocal terms’ at the outset
of the interrogation that ‘he has the right to remain silent’ will
understand ‘that his interrogators are prepared to recognize his
privilege should he choose to exercise it.’ ”). Consequently, I believe
that an unqualified statement, unadorned with temporal components,
is sufficient to advise a person of both rights.

III

In the present case, I conclude that the general warning defendant

received satisfied Miranda. Defendant was given a form at the outset
that notified her the warnings were necessary “[b]efore any questions
are asked of you.” She then received, both on the form and verbally,
advisement of an unqualified right to an attorney. Nothing was said that
could have misled a reasonable person as to the scope of that right or
suggested that it applied only at certain stages of the interrogation or
judicial processes. Rather, a commonsense understanding of the warn-
ings would lead one to believe that the right to an attorney could be
invoked at any time.15
But even more important, to my mind, is that Miranda approved of
FBI warnings no more detailed than the ones administered here and the
Court has never required more since Miranda.16 Thus, the Court of

15
I concede that the warnings here could have been more explicit.
However, it is up to the policy-making branches to adopt or require
best practices; courts may only determine which practices pass consti-
tutional muster. See Walton, 199 Ill App 3d at 344-345 (“While the
better practice would be for the police to make explicit that defendant’s
right to consult with a lawyer may be both before and during any police
interrogation, we hold that the language used in this case [that the
defendant had a right to consult with a lawyer] was sufficient to imply
the right to counsel’s presence during questioning” because “no restric-
tions were stated by the police in the present case as to how, when, or
where defendant might exercise his right ‘to consult with a lawyer.’ ”).
16
And it has passed on more than one opportunity to reverse courts
that have upheld general warnings that contain partial or no express
temporal components, including very recently. See Carter v Colorado, 583
US ___; 138 S Ct 980 (2018); Warren v United States, 564 US 1012 (2011).
 ORDERS IN CASES 1125
Appeals’ decision below stands for the proposition that warnings like
those approved in Miranda actually violate Miranda. Instead of second-
guessing Miranda, I would take the Supreme Court at its word on
whether this way of phrasing the warning is permissible.17 Demanding
anything more elaborate, as the Court of Appeals did here, exceeds what
Miranda required and is therefore not an application but an extension
of the case’s holding.
In taking the narrower reading of Miranda, I am guided by first
principles. I am not the first to notice that the rule crafted in Miranda
lacks a discernable relationship to the actual text and original mean-
ing of the Constitution.18 Of course, Supreme Court caselaw is binding
and must be faithfully applied. Abela v Gen Motors Corp, 469 Mich 603,
606 (2004). But if a fair reading of the precedent does not resolve the
issue we face, we have the power and the responsibility to decide the
issue for ourselves. We are under no obligation to extend the scope of a
precedent to cover the matter at hand, especially when, as here, the
Supreme Court has already signaled its approval of the practice.

17
The Court of Appeals acknowledged the tension in Miranda pro-
duced by the discussion of the FBI warnings. Mathews, 324 Mich App at
437 n 7. Nonetheless, the Court of Appeals thought the statements
concerning the FBI warnings mattered little because they were “imme-
diately followed by a discussion of the then-current practices in” various
other countries and military courts and came “in the larger context of
responding to concerns” about the practical cost of the warnings. Id. The
positioning of the discussion, however, does nothing to negate Miranda’s
clear statements approving the FBI warnings, most notably that the
FBI’s “present pattern of warnings and respect for the rights of the
individual . . . is consistent with the procedure which we delineate
today.” Miranda, 384 US at 483-484.
18
See Dickerson v United States, 530 US 428, 448 (Scalia, J.,
dissenting) (“[T]he decision in Miranda, if read as an explication of
what the Constitution requires, is preposterous.”); Markman, Miranda
v Arizona: A Historical Perspective, 24 Am Crim L Rev 193, 241 (1987)
(“Perhaps more than any Supreme Court decision preceding it, Mi-
randa found the Court straying from the moorings of both the
Constitution and the traditionally conceived judicial role to craft
detailed, code-like prescriptions governing criminal justice. The Mi-
randa decision had no basis in history or precedent but reflected,
rather, a departure from the authoritative sources of law.”); see
generally Amar, The Constitution and Criminal Procedure: First
Principles (New Haven: Yale University Press, 1997), pp 48-49 (“Mod-
ern understandings of the [Fifth Amendment self-incrimination]
clause deviate far from its early American implementation, from plain
meaning, and from common sense.”).
1126 505 MICHIGAN REPORTS
I would not extend a decision like Miranda unless the extension can
be independently justified under the proper interpretive approach, that
is, unless the extension is required by the Constitution’s original
meaning.19 It is no easy task, however, to discern original meaning in an
area where the caselaw has long since been uncoupled from that
meaning. Here, for example, the interpretive endeavor required by
Miranda revolves around a specific set of warnings promulgated by the
Court. A judge’s traditional tools of textual and historical inquiry mean
little in this analytical framework. Does the text of the Fifth Amend-
ment, as originally understood, require the conclusion that a person has
been “compelled . . . to be a witness against himself” on the basis of
statements he made without first being explicitly warned that he has a
right to consult an attorney before and during custodial interrogation?
Certainly, no one in this case has offered such an argument, and
accordingly I will not assay an answer. Merely posing the question
demonstrates the need for caution in this area.20
For these reasons, I would not extend Miranda to provide that
preinterrogation warnings must expressly advise of the right to counsel
before and during the questioning. It is enough that a suspect, like
defendant here, be notified of her unqualified right to counsel.

IV

In denying leave in this case, the Court declines to exercise the

proper measure of circumspection that the issue requires and instead
submits, without comment, to the Court of Appeals’ extension of
Miranda in a published opinion. I disagree that the warnings here were
deficient under Miranda, and I would not extend that decision to

19
See Blackman, Originalism and Stare Decisis in the Lower Courts,
13 NYU J L & Liberty 44, 51 (2019) (arguing that originalist lower court
judges “should only extend a Supreme Court precedent if the original
meaning of the Constitution can support that extension”); cf. Garza v
Idaho, 586 US ___, ___; 139 S Ct 738, 756 (2019) (Thomas, J., dissenting)
(noting that the Court should “tread carefully before extending our
precedents” when they do not reflect the Constitution’s original mean-
ing); Free Enterprise Fund v Public Co Accounting Oversight Bd, 383 US
App DC 119, 150 (2008) (Kavanaugh, J., dissenting) (“We should resolve
questions about the scope of . . . precedent[] in light of and in the
direction of the constitutional text and constitutional history.”), aff’d in
part and rev’d in part 561 US 477 (2010).
20
Absent an analysis of original meaning—either in Miranda itself or
with regard to its extension—this Court is forced to consult Miranda’s
text rather than the Constitution’s text. Thus, even though the Court’s
comments on the FBI warnings could be cast off as unnecessary to the
decision, they take on more significance since they are all we have to
work with in this situation.
 ORDERS IN CASES 1127
prohibit these warnings. Accordingly, I believe the Court of Appeals’
decision should be reversed, and I therefore respectfully dissent.
MARKMAN and ZAHRA, JJ., join the statement of VIVIANO, J.
STUMBO V ROE, No. 161433; reported below: 332 Mich App 479.

Leave to Appeal Denied June 16, 2020:

PEOPLE V LABELLE, No. 161465; Court of Appeals No. 353629.

MCCORMACK, C.J., did not participate due to her preexisting relation-
ship with a party.

Petitions for Interim Suspension Granted June 17, 2020:

In re KAHLILIA Y. DAVIS, JUDGE 36TH DISTRICT COURT, No. 161134. On

order of the Court, the petition for interim suspension is considered, and
it is granted. The Honorable Kahlilia Y. Davis, Judge of the 36th District
Court, is suspended with pay until further order of this Court.
In re ANONYMOUS JUDGE, No. 161331. On order of the Court, the
petition for interim suspension is considered, and it is granted. The
Honorable David Parrott, Judge of the 34th District Court, is suspended
with pay until further order of this Court. In order to preserve the
confidentiality required by MCR 9.225(A)(2) and MCR 9.261(A), with
the exception of this order, the Supreme Court file is suppressed and
shall remain confidential until further order of this Court.

Leave to Appeal Granted June 17, 2020:

DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS/UNEMPLOYMENT IN-

SURANCE AGENCY V LUCENTE and DEPARTMENT OF LICENSING AND REGULATORY
AFFAIRS/UNEMPLOYMENT INSURANCE AGENCY V HERZOG, Nos. 160843 and
160844; reported below: 330 Mich App 237. The parties shall address
whether the Court of Appeals erred in its analysis of §§ 32, 32a, and 62 of
the Michigan Employment Security Act of 1936 (MESA), MCL 421.1 et
seq., when it held that: (1) the Unemployment Insurance Agency is not
required to comply with the time requirements set forth in § 32a when
seeking to recoup payment of fraudulently obtained benefits under § 62 of
the Act; and (2) the label that the agency used on its decisions was not
determinative of its ability to seek to recoup improperly obtained benefits.
Persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae.

Leave to Appeal Denied June 17, 2020:

PEOPLE V TIMOTHY HARE, No. 159841; Court of Appeals No. 346627.

PEOPLE V TRON ROBINSON, No. 160517; Court of Appeals No. 348966.
1128 505 MICHIGAN REPORTS
SWOFFORD V ALVAREZ, Nos. 160751 and 160752; Court of Appeals Nos.
344189 and 344465.
BERNSTEIN, J., did not participate because he has a family member
with an interest that could be affected by the proceeding.
PEOPLE V CHAPMAN, No. 160835; Court of Appeals No. 345090.
PEOPLE V FULLER, No. 161016; Court of Appeals No. 345500.
PEOPLE V HUBBARD, No. 161212; Court of Appeals No. 351605.

Summary Disposition June 19, 2020:

PEOPLE V BORTHWELL, No. 160000; Court of Appeals No. 346757.

Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
vacate the June 11, 2018 order of the Wayne Circuit Court, and we
remand this case to that court for reconsideration of the defendant’s
motion for relief from judgment in light of People v Johnson, 502 Mich
541 (2018). We do not retain jurisdiction.
VIVIANO, J., would deny leave to appeal.
PEOPLE V SOLER-NORONA, No. 160241; Court of Appeals No. 348547.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
remand this case to the Court of Appeals. Because defendant’s motion to
waive fees met the requirements of MCL 600.321(4) and MCR 7.219(G),
we direct the Court of Appeals to accept defendant’s motion to waive
fees; to treat defendant’s delayed application for leave to appeal as
having been filed with that motion; and to decide whether to grant, deny,
or order other relief, in accordance with MCR 7.205(E)(2). We do not
retain jurisdiction.
PEOPLE V D’ANTE GORDON, No. 160730; Court of Appeals No. 350520.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
remand this case to the Wayne Circuit Court for an evidentiary hearing
pursuant to People v Ginther, 390 Mich 436 (1973), and reconsideration
of the defendant’s motion for relief from judgment. We further order the
trial court, in accordance with Administrative Order 2003-03, to deter-
mine whether the defendant is indigent and, if so, to appoint counsel to
represent the defendant at the evidentiary hearing. We do not retain
jurisdiction.
PEOPLE V STOLTZ, No. 161311; Court of Appeals No. 346713.
FINLEY V GOVERNOR OF MICHIGAN, No. 161489; Court of Appeals No.
353761.

Superintending Control Denied June 19, 2020:

OAKES V COURT OF APPEALS, No. 161393.

 ORDERS IN CASES 1129
Reconsideration Denied June 24, 2020:

WIMMER V MONTANO, No. 161121; Court of Appeals No. 351762. Leave

to appeal denied at 505 Mich 1083.
IW V MM, No. 161152; Court of Appeals No. 350711. Motion to
dismiss granted at 505 Mich 1080.

Leave to Appeal Denied June 26, 2020:

GAYDOS V BENDER, Nos. 159107 and 159124; reported below: 326 Mich
App 667. On April 15, 2020, the Court heard oral argument on the
applications for leave to appeal the January 3, 2019 judgment of the
Court of Appeals. On order of the Court, the applications are again
considered, and they are denied, there being no majority in favor of
granting leave to appeal or taking other action.
MARKMAN, J. (dissenting). The Court of Appeals below recognized a
new cause of action, a suit for professional malpractice against an expert
witness retained by an unsuccessful party in prior litigation. This
conclusion stands in tension with an extensive body of law of this state,
broadly conferring immunity upon witnesses, not excluding expert
witnesses, in prior proceedings. It also runs counter to a number of
practical considerations that, in my judgment, continue generally to
favor broad common-law immunity for such persons. Moreover, if this
alteration of the law is to be undertaken (and it should be understood
that I am not entirely unmoved by the argument that accountability
constitutes a virtue of expert witnesses as it does of persons in other
contexts), it should be undertaken by this Court, given that the question
presented is of significance both in light of growing levels of expert
involvement in contemporary litigation and as a question that has
divided courts of other jurisdictions. Therefore, I respectfully dissent
from the Court’s order denying leave to appeal and instead would grant
leave to appeal for further judicial consideration.
Although whether a retained expert is specifically entitled to witness
immunity constitutes a question of first impression before this Court,
the general principle of witness immunity is anything but this.
Michigan first recognized a witness’s right to immunity in 1881. See
Hart v Baxter, 47 Mich 198, 200-201 (1881) (holding that statements
offered by witnesses that are relevant to the proceeding are “absolutely
privileged”). Consonant with this proposition, we have observed that the
privilege “should be liberally construed so that participants in judicial
proceedings may have relative freedom to express themselves without
fear of retaliation.” Sanders v Leeson Air Conditioning Corp, 362 Mich
692, 695 (1961), abrogated in part on other grounds by Moore v Mich
Nat’l Bank, 368 Mich 71 (1962); see also Maiden v Rozwood, 461 Mich
109, 134 (1999). Courts of this state have consistently relied upon
witness immunity to preclude independent legal claims. See, e.g.,
Sanders, 362 Mich at 695-696; Meyer v Hubbell, 117 Mich App 699, 704,
710 (1982). And witness immunity has been held applicable not only to
statements made at trial by witnesses, but also to pretrial statements by
1130 505 MICHIGAN REPORTS
potential witnesses, including expert witnesses. Sanders, 362 Mich at
696; see also Couch v Schultz, 193 Mich App 292, 295 (1992) (concluding
that witness immunity “extends to every step in the proceeding and
covers anything that may be said in relation to the matter at issue,
including pleadings and affidavits”). In summation, our past cases have
regularly counseled that “[w]itnesses who are an integral part of the
judicial process ‘are wholly immune from liability for the consequences
of their testimony or related evaluations.’ ” Maiden, 461 Mich at 134,
quoting 14 West Group’s Michigan Practice, Torts, § 9:393, at 9-131 to
9-132 (emphasis added).1
In the face of this caselaw, one might have expected the Court of
Appeals to look more skeptically upon plaintiff’s claim against a
retained expert. This is particularly true where plaintiff has not cited a
single Michigan decision recognizing any type of suit against any
witness, expert or otherwise. And in additional respects, rejecting
plaintiff’s claim for professional negligence against a retained expert
would have been consistent with relevant common-law policy consider-
ations. Cf. Couch, 193 Mich App at 294 (“Public policy is the principle
underlying the [common-law] doctrine of absolute privilege.”).2 First,
allowing lawsuits against expert witnesses following unsuccessful liti-
gation will obviously, and certainly, render it more difficult for a litigant
to retain an expert, and thus as a result render it less likely that critical
or complex issues will be fully and effectively engaged for the assess-
ment of the fact-finder. In other words, the threat of legal recourse
following trials in which expert testimony has either led in unpredict-
able or unexpected directions or the retaining party was simply disap-
pointed and did not prevail is likely to discourage some individuals from
providing expert testimony altogether while encouraging others who
remain willing to testify to undertake precautions, such as the purchase
of insurance, that will increase their fees. See, e.g., Bruce v Byrne-
Stevens & Assocs Engineers, Inc, 113 Wash 2d 123, 130-131. Although
these utterly-foreseeable consequences will affect all litigants, they are
likely to have a disproportionately adverse impact upon those who
already face financial obstacles to accessing the justice system.3

1
The instant case involves experts retained by plaintiff in formulat-
ing pretrial strategies and does not involve experts who testified at trial.
It also does not involve perjured testimony; the instant lawsuit is a civil
lawsuit to redress an asserted personal injury.
2
As the doctrine of witness immunity is a judicially created doctrine
in which courts traditionally weigh and balance a range of relevant
public-policy considerations, the matter is one historically falling within
the domain of the common law.
3
I fear this will be especially true for indigent criminal defendants
who in many cases require the appointment of an expert in order to
mount an adequate defense. And the chilling effect of allowing lawsuits
against expert witnesses may be even greater for indigent defendants
 ORDERS IN CASES 1131
Second, and perhaps of even greater concern, for those individuals
who remain willing to testify, the specter of future litigation may well
cause the witness, bearing in mind his legal vulnerability, to overly-
shade his opinions in favor of the party which retains him, thus subtly
impugning both the integrity of his opinions and presumably the
outcome of the proceeding. See Briscoe v LaHue, 469 US 325 333 (1983)
(“A witness who knows that he might be forced to defend a subsequent
lawsuit, and perhaps to pay damages, might be inclined to shade his
testimony in favor of the potential plaintiff, to magnify uncertainties,
and thus to deprive the finder of fact of candid, objective, and undis-
torted evidence.”); Bruce, 113 Wash 2d at 130 (“The threat of civil
liability based on an inadequate final result in litigation would encour-
age experts to assert the most extreme position favorable to the party for
whom they testify.”). Such an impact is completely at odds with
fundamental interests identified by this Court in sustaining broad
witness immunity. See Maiden, 461 Mich at 135, quoting Daoud v
De Leau, 455 Mich 181, 202-203 (1997) (“Witness immunity is . . .
grounded in the need of the judicial system for testimony from witnesses
who, taking their oaths, are free of concern that they themselves will be
targeted by the loser for further litigation.”).
Third, permitting a dissatisfied litigant to bring suit against an
expert will also considerably extend the typical point of finality of
litigation. The action against the expert will enable relitigation of the
merits of the prior proceeding, essentially giving rise to a “retrial within
a trial,” typically a lengthy and often convoluted form of legal proceed-
ing, all within the guise of a suit for expert-witness malpractice. Such
lawsuits thus will predictably and disproportionately burden the re-
sources of the judiciary.
This Court now declines to address whether retained experts should
remain subject to the protections of witness immunity. This declination
is concerning given that the Court of Appeals itself recognized that the
question presented was “[a]n important public question of first impres-
sion,” Voutsaras Estate v Bender, 326 Mich App 667, 682-683 (2019), and
it is concerning because the Court of Appeals’ decision, absent further
action by this Court, will immediately operate to encourage witness
lawsuits. See generally Marrogi v Howard, 805 So 2d 1118, 1128 (La,
2002) (whether retained experts are entitled to witness immunity “has
become one of increasing importance given the rapid growth in the
number of professionals and others hired to provide litigants with
assistance in the preparation and presentation of their cases”). Accord-
ingly, I respectfully dissent and would grant leave to appeal for further
judicial consideration.
MCCORMACK, C.J., and ZAHRA, J., join the statement of MARKMAN, J.
CAVANAGH, J., did not participate due to a preexisting relationship
with a party.

seeking postconviction relief from judgment, who often must recruit an

expert to work pro bono on their case.
1132 505 MICHIGAN REPORTS
PEOPLE V VALDEN WHITE, No. 161081; reported below: 331 Mich App
144.
PEOPLE V VALDEN WHITE, No. 161426; Court of Appeals No. 353638.
PEOPLE V HOGGARD, No. 161468; Court of Appeals No. 353437.

Summary Disposition June 30, 2020:

PEOPLE V CASTILLO, No. 161211; Court of Appeals No. 351841. Pursu-

ant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand
this case to the Court of Appeals for consideration as on leave granted.

Leave to Appeal Denied June 30, 2020:

PEOPLE V MCARTHUR TAYLOR, No. 159763; Court of Appeals No. 347052.

DAMGHANI V CITY OF KENTWOOD, No. 159925; Court of Appeals No.
341213.
PEOPLE OF COMMERCE TOWNSHIP V SEKULOVSKI, No. 159956; Court of
Appeals No. 347422.
ZELASKO V ZELASKO, No. 160120; Court of Appeals No. 342854.
PEOPLE V HOLLIS, No. 160132; Court of Appeals No. 348016.
TOWNSHIP OF GRAYLING V BERRY, No. 160171; reported below: 329 Mich
App 133.
PEOPLE V TERI JOHNSON, No. 160178; Court of Appeals No. 349129.
PEOPLE V OZIER, No. 160271; Court of Appeals No. 348619.
WASHINGTON V OESTERLING, No. 160302; Court of Appeals No. 348074.
PEOPLE V ZAHRAIE, No. 160308; Court of Appeals No. 347720.
PEOPLE V MEGAEL CLEMONS, No. 160325; Court of Appeals No. 350200.
PEOPLE V KIRCHER, No. 160342; Court of Appeals No. 348393.
CITY OF EAST LANSING V WILSON, No. 160344; Court of Appeals No.
348391.
PEOPLE V KNAUSS, No. 160346; Court of Appeals No. 347453.
PEOPLE V EDWARD JOHNSON, No. 160347; Court of Appeals No. 348907.
RUDD V AVERILL, No. 160425; Court of Appeals No. 340135.
ROSS EDUCATION, LLC V CITY OF TAYLOR, No. 160461; Court of Appeals
No. 344516.
PEOPLE V HOWARD HUGHES, No. 160485; Court of Appeals No. 349005.
 ORDERS IN CASES 1133
PEOPLE V CROSS, No. 160501; Court of Appeals No. 349210.
DEFILIPPIS V REDFORD POLICE DEPARTMENT, No. 160515; Court of Appeals
No. 348326.
PEOPLE V PICKETT, No. 160525; Court of Appeals No. 344436.
COLLINS V CITY OF FLINT, No. 160543; Court of Appeals No. 345203.
CLEMENT, J., did not participate due to her prior involvement as chief
legal counsel for the Governor.
PEOPLE V DEVON WILLIAMS, No. 160557; Court of Appeals No. 341838.
PEOPLE V VORIS, No. 160559; Court of Appeals No. 350663.
METRO HEALTHCARE SERVICES, INC V INNOVATIVE PAYROLL PROCESSING, INC,
No. 160568; Court of Appeals No. 342802.
NOEL V SCHOLASTIC SOLUTIONS, LLC and NOEL v FISHER, Nos. 160574
and 160575; Court of Appeals Nos. 343580 and 347056.
PEOPLE V STIFF, No. 160584; Court of Appeals No. 340765.
PEOPLE V STEVEN JACKSON, No. 160586; Court of Appeals No. 348803.
PEOPLE OF THE CITY OF WESTLAND V PLATER, No. 160615; Court of
Appeals No. 349599.
PEOPLE V SWANK, No. 160622; Court of Appeals No. 342905.
PEOPLE V SAMMY ALLEN, No. 160632; Court of Appeals No. 344207.
PEOPLE V CLIFF, No. 160648; Court of Appeals No. 342995.
PEOPLE V BEAN, No. 160649; Court of Appeals No. 343827.
PEOPLE V JOHN GREEN, No. 160688; Court of Appeals No. 350713.
PEOPLE V DONALD SCOTT, No. 160716; Court of Appeals No. 350402.
ANESTHESIA SERVICES AFFILIATES V CITY OF DETROIT, No. 160742; Court of
Appeals No. 344317.
HARTLAND GLEN DEVELOPMENT, LLC V TOWNSHIP OF HARTLAND, No.
160743; Court of Appeals No. 344480.
RUTLEDGE V SUFFOLK COURT APARTMENTS, No. 160747; Court of Appeals
No. 345752.
PEOPLE V REIHER, No. 160757; Court of Appeals No. 343234.
PEOPLE V JAMMAL JACKSON, No. 160766; Court of Appeals No. 345524.
ANAYA V BETTEN CHEVROLET, INC, No. 160768; reported below:
330 Mich App 210.
CAVANAGH, J., did not participate due to her prior relationship with
Garan Lucow Miller, P.C.
1134 505 MICHIGAN REPORTS
PEOPLE V TRUITTE, No. 160787; Court of Appeals No. 351322.
PEOPLE V HOSKINS, No. 160799; Court of Appeals No. 345351.
PEOPLE V DUPREE, No. 160823; Court of Appeals No. 339627.
PEOPLE V GOREE, No. 160824; Court of Appeals No. 350642.
PEOPLE V JERMAINE JOHNSON, No. 160834; Court of Appeals No. 343442.
NORMAN V DEPARTMENT OF CORRECTIONS, No. 160847; Court of Appeals
No. 349914.
PEOPLE V DWAYNE MILLER, No. 160865; Court of Appeals No. 351204.
MICHIGAN OPEN CARRY, INC V DEPARTMENT OF STATE POLICE, No. 160870;
reported below: 330 Mich App 614.
PEOPLE V JEFFREY WATTS, No. 160892; Court of Appeals No. 341729.
PEOPLE V GRAY, No. 160895; Court of Appeals No. 342111.
PEOPLE V MAURICE JOHNSON, No. 160897; Court of Appeals No. 344800.
PEOPLE V JENSEN, No. 160898; Court of Appeals No. 350882.
PEOPLE V BAGLEY, No. 160903; Court of Appeals No. 351403.
RUDD V AVERILL, No. 160905; Court of Appeals No. 349319.
PEOPLE V STAMPER, No. 160909; Court of Appeals No. 351065.
PEOPLE V CRANDALL, No. 160961; Court of Appeals No. 351868.
PEOPLE V RODNEY BROWN, No. 160984; Court of Appeals No. 346401.
PEOPLE V RYAN SMITH, No. 161011; Court of Appeals No. 351563.
In re SMITH, No. 161058; Court of Appeals No. 352572.
PEOPLE V COLEMAN, No. 161061; Court of Appeals No. 350641.
PEOPLE V JAMISON-LAWS, No. 161065; Court of Appeals No. 345285.
PEOPLE V ANTHONY HARRIS, No. 161071; Court of Appeals No. 346048.
PEOPLE V EARVIN DAVIS, No. 161073; Court of Appeals No. 351010.
PEOPLE V HANCOCK, Nos. 161074 and 161075; Court of Appeals Nos.
345034 and 345035.
PEOPLE V SYMONE CALLOWAY, No. 161076; Court of Appeals No. 352433.
MOORE V OCWEN LOAN SERVICING, LLC, No. 161079; Court of Appeals
No. 347974.
PEOPLE V FRANK TYSON, No. 161084; Court of Appeals No. 338299.
PEOPLE V MUSTAFA, No. 161086; Court of Appeals No. 351857.
 ORDERS IN CASES 1135
PEOPLE V RITCHEY, No. 161089; Court of Appeals No. 345735.
VIVIANO, J., did not participate due to a familial relationship with the
presiding circuit court judge in this case.
STATE TREASURER V URAZ, No. 161163; Court of Appeals No. 349487.
PEOPLE V MITCHELL GLENN, No. 161199; Court of Appeals No. 351812.

Superintending Control Denied June 30, 2020:

MITCHELL V ATTORNEY GRIEVANCE COMMISSION, No. 161133.
CAVANAGH, J., did not participate due to her prior service as a member
of the Attorney Grievance Commission.

Reconsideration Denied June 30, 2020:

PEOPLE V GERALD SHORT, No. 156653; Court of Appeals No. 337218.

Leave to appeal denied at 505 Mich 974.

Summary Disposition July 1, 2020:

PEOPLE V MANWELL, No. 157563; Court of Appeals No. 333916. The

motion to amend the defendant’s reply brief is granted. Pursuant to
MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate Parts III
and IV of the judgment of the Court of Appeals regarding the testimony
of the Children’s Protective Services worker and Detective Newman,
and we remand this case to the Court of Appeals for reconsideration in
light of People v Thorpe, 504 Mich 230 (2019), and People v Harbison,
504 Mich 230 (2019). In all other respects, leave to appeal is denied,
because we are not persuaded that the remaining questions presented
should be reviewed by this Court. The motions for documents, to
challenge transcripts, for discovery, to compel testimony, and to remand
are denied.
PEOPLE V SHELTON, No. 159883; Court of Appeals No. 337796. Pursu-
ant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand
this case to the Court of Appeals to consider whether the prosecutor’s
references to the defendant’s prearrest silence were relevant and
admissible under MRE 401 and MRE 403, see People v Cetlinksi, 435
Mich 742, 760-761 (1990), and if not, whether it is more probable than
not that the error was outcome-determinative, People v Musser, 494
Mich 337 (2013).
The Court of Appeals shall forward its decision on remand to the
Clerk of this Court within 56 days of the date of this order. We retain
jurisdiction.
PEOPLE V JOHN LEWIS, No. 160650; Court of Appeals No. 350287.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
remand this case to the Court of Appeals for consideration as on leave
granted.
1136 505 MICHIGAN REPORTS
Leave to appeal granted July 1, 2020:

TAXPAYERS FOR MICHIGAN CONSTITUTIONAL GOVERNMENT V STATE OF

MICHIGAN, Nos. 160658 and 160660; reported below: 330 Mich App 295.
The parties shall include among the issues to be briefed: (1) whether the
defendants violated Const 1963, art 9, §§ 25 and 30, by classifying monies
paid to school districts pursuant to Proposal A, Const 1963, art 9, § 11, as
state spending in the form of aid paid to units of local government; (2)
whether the defendants violated Const 1963, art 9, §§ 25 and 30, by
classifying monies paid to public school academies (a.k.a. charter schools)
as state spending in the form of aid paid to units of local government; (3)
whether the Court of Appeals erred when it held that state funds directed
to local governments to satisfy state obligations under Const 1963, art 9,
§ 29 may not be counted toward the proportion of state funds required by
Const 1963, art 9, § 30; and (4) whether the Court of Appeals erred to the
extent that it held that the Auditor General or the Office of the Auditor
General is subject to mandamus relief.
The Michigan Municipal League, the Government Law Section of the
State Bar of Michigan, the Michigan Townships Association, the Michi-
gan Association of Counties, and Taxpayers United Michigan Founda-
tion are invited to file briefs amicus curiae. Other persons or groups
interested in the determination of the issues presented in this case may
move the Court for permission to file briefs amicus curiae.

Orders Granting Oral Argument in Cases Pending on Application for

Leave to Appeal Entered July 1, 2020:

In re DIEHL, MINOR, No. 160457; reported below: 329 Mich App 671. The
appellant shall file a supplemental brief within 42 days of the date of this
order addressing: (1) whether the Juvenile Code, MCL 712A.1 et seq., allows
a family court to revoke its previous authorization of a juvenile delinquency
petition over the objection of the prosecution; (2) whether MCL 780.786b
provides family courts with the independent authority to remove an already
authorized delinquency matter from the adjudicative process without the
prosecution’s consent; (3) whether the family court’s decision to “unauthor-
ize” two delinquency petitions encroached on the prosecution’s charging
authority in violation of the Separation of Powers Clause, Const 1963, art 3,
§ 2; and (4) to the extent that the family court erred, whether that error was
harmless, MCR 3.902(A); MCR 2.613.
In addition to the brief, the appellant shall electronically file an
appendix conforming to MCR 7.312(D)(2). In the brief, citations to the
record must provide the appendix page numbers as required by
MCR 7.312(B)(1). The appellee shall file a supplemental brief within 21
days of being served with the appellant’s brief. The appellee shall also
electronically file an appendix, or in the alternative, stipulate to the use
of the appendix filed by the appellant. A reply, if any, must be filed by the
appellant within 14 days of being served with the appellee’s brief. The
parties should not submit mere restatements of their application papers.
The Criminal Defense Attorneys of Michigan, the Prosecuting Attor-
neys Association of Michigan, and the University of Michigan Law
 ORDERS IN CASES 1137
School Juvenile Justice Clinic are invited to file briefs amicus curiae.
Other persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae.
In re GUARDIANSHIP OF ORTA, MINORS, Nos. 161118 and 161119; Court of
Appeals Nos. 346399 and 346400. The appellant shall file a supplemen-
tal brief within 42 days of the date of this order addressing: (1) whether
In re Ferranti, 504 Mich 1 (2019), applies to guardianship proceedings;
and (2) whether, to establish a guardianship under MCL 700.5204(2)(b),
a parent must intend that his or her child permanently reside with
another person. In addition to the brief, the appellant shall electroni-
cally file an appendix conforming to MCR 7.312(D)(2). In the brief,
citations to the record must provide the appendix page numbers as
required by MCR 7.312(B)(1). The appellee shall file a supplemental
brief within 21 days of being served with the appellant’s brief. The
appellee shall also electronically file an appendix, or in the alternative,
stipulate to the use of the appendix filed by the appellant. A reply, if any,
must be filed by the appellant within 14 days of being served with the
appellee’s brief. The parties should not submit mere restatements of
their application papers.
The Family Law Section and the Children’s Law Section of the State
Bar of Michigan are invited to file briefs amicus curiae. Other persons or
groups interested in the determination of the issues presented in this
case may move the Court for permission to file briefs amicus curiae.

Leave to Appeal Denied July 1, 2020:

KELLY V GROHOWSKI, No. 159993; Court of Appeals No. 344237.

JAROS V VHS HARPER-HUTZEL HOSPITAL, INC, No. 160449; Court of
Appeals No. 340566.
ESTATE OF MICHAEL WHYTE V DETROIT TRANSPORTATION CORPORATION, No.
160613; Court of Appeals No. 343161.
MENARD V IMIG, No. 161008; Court of Appeals No. 336220.

Summary Disposition July 2, 2020:

COMMITTEE TO BAN FRACKING IN MICHIGAN V BOARD OF STATE CANVASSERS,

No. 161453. On order of the Court, the motion for immediate consider-
ation is granted. The complaint for mandamus is considered, and relief
is denied, because the Court is not persuaded that it should grant the
requested relief. The motion to dismiss is denied as moot.

Order Modified July 2, 2020:

PEOPLE V JASON KEISTER, No. 159912; Court of Appeals No. 340931.

Prior summary disposition order entered at 505 Mich 1014. On order of
1138 505 MICHIGAN REPORTS
the Court, the motion for reconsideration of this Court’s March 27, 2020
order is considered. We modify the order, which now states:

On order of the Court, the application for leave to appeal the

May 16, 2019 judgment of the Court of Appeals is considered and,
pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal,
we VACATE that part of the Court of Appeals judgment holding
that the admission of testimony from Dr. Angela May that “there
was a high likelihood of abuse” was not plain error. See People v
Keister, unpublished per curiam opinion of the Court of Appeals,
issued May 16, 2019 (Docket No. 340931) at 5-6. Her testimony
was plainly contrary to People v Smith, 425 Mich 98 (1986),
People v Peterson, 450 Mich 349 (1995), and People v Thorpe, 504
Mich 230 (2019). We REMAND this case to the Court of Appeals
for consideration of whether the prejudice prong of the plain-error
test was satisfied, and, if so, whether reversal of the defendant’s
convictions is warranted. See People v Carines, 460 Mich 750,
763-764 (1999). In all other respects, leave to appeal is DENIED,
because we are not persuaded that the remaining questions
presented should be reviewed by this Court.
We do not retain jurisdiction.
In all other respects, the motion for reconsideration is denied, because
we are not persuaded that further reconsideration of our previous order
is warranted. MCR 7.311(G).

Orders Granting Oral Argument in Cases Pending on Application for

Leave to Appeal Entered July 2, 2020:

PEOPLE V MARTINEZ, No. 160060; Court of Appeals No. 341147. The

appellant shall file a supplemental brief within 42 days of the date of
this order addressing: (1) whether the trial court erred by granting the
prosecution’s motion in limine to bar the defendant from presenting
evidence of an alleged prior threat by the complainant to report an
assault; and (2) if so, whether the error was prejudicial. In addition to
the brief, the appellant shall electronically file an appendix conforming
to MCR 7.312(D)(2). In the brief, citations to the record must provide the
appendix page numbers as required by MCR 7.312(B)(1). The appellee
shall file a supplemental brief within 21 days of being served with the
appellant’s brief. The appellee shall also electronically file an appendix,
or in the alternative, stipulate to the use of the appendix filed by the
appellant. A reply, if any, must be filed by the appellant within 14 days
of being served with the appellee’s brief. The parties should not submit
mere restatements of their application papers.
The Criminal Defense Attorneys of Michigan and the Prosecuting
Attorneys Association of Michigan are invited to file briefs amicus
curiae. Other persons or groups interested in the determination of the
issues presented in this case may move the Court for permission to file
briefs amicus curiae.
 ORDERS IN CASES 1139
BRONNER V CITY OF DETROIT, No. 160242; Court of Appeals No. 340930.
The appellant shall file a supplemental brief within 42 days of the date
of this order addressing whether the Court of Appeals erred in holding
that the no-fault insurance act, MCL 500.3101 et seq., precluded the City
of Detroit from seeking contractual indemnification from GFL Environ-
mental USA, Inc. for the City’s payment of personal protection insur-
ance (PIP) benefits. In addition to the brief, the appellant shall elec-
tronically file an appendix conforming to MCR 7.312(D)(2). In the brief,
citations to the record must provide the appendix page numbers as
required by MCR 7.312(B)(1). The appellee shall file a supplemental
brief within 21 days of being served with the appellant’s brief. The
appellee shall also electronically file an appendix, or in the alternative,
stipulate to the use of the appendix filed by the appellant. A reply, if any,
must be filed by the appellant within 14 days of being served with the
appellee’s brief. The parties should not submit mere restatements of
their application papers.

Leave to Appeal Denied July 2, 2020:

In re MASON/LASOTA, MINORS, No. 161341; Court of Appeals Nos.

350001 and 350003.
WASENKO V AUTO CLUB GROUP, No. 161474; Court of Appeals No.
352890.
WASENKO V AUTO CLUB GROUP, No. 161493; Court of Appeals No.
352978.

Application for Leave to Appeal Dismissed July 8, 2020:

In re MONTANO, Nos. 161273 and 161274; Court of Appeals Nos.

353392 and 353410. On order of the Chief Justice, the plaintiff-
appellant’s interlocutory application, motion to amend the application
filed on May 4, 2020, and motions to add issues filed on May 6, 2020, and
May 12, 2020, are administratively dismissed for failure to pay the filing
fees as directed by the Court’s order of May 28, 2020.

Summary Disposition July 10, 2020:

PEOPLE V KRESTEL, No. 160048; Court of Appeals No. 341463. Pursu-

ant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate
that part of the Court of Appeals judgment that affirmed the assessment
of a financial sanction against the defendant’s counsel, and vacate the
$500 assessment. We remand this case to the Berrien Circuit Court to
reconsider the assessment, taking into consideration the wide latitude
given to the judgment of criminal defense counsel when applying
MCR 2.114(D)(2) (repealed) and a criminal defendant’s right to present
a defense. See In re John R. Minock, 441 Mich 881 (1992); People v Hayes,
421 Mich 271, 278 (1984). In all other respects, leave to appeal is denied,
1140 505 MICHIGAN REPORTS
because we are not persuaded that the remaining questions presented
should be reviewed by this Court. We do not retain jurisdiction.
ZAHRA, J. (dissenting). I respectfully dissent from the majority’s
decision to vacate the portion of the Court of Appeals’ judgment
affirming the assessment of financial sanctions against defense counsel
and to remand the case to the trial court for reconsideration of the
assessment.
In this case, defendant filed a motion—with counsel’s assistance—
seeking dismissal of criminal charges against him on the basis of
immunity under § 4 of the Michigan Medical Marihuana Act (MMMA),
MCL 333.26421 et seq., and the affirmative defense established under
§ 8 of the act.1 The trial court denied the motion, but also imposed a
$500 sanction against defense counsel for failing to make a reasonable
inquiry into defendant’s residency before making a good-faith argument
relating to § 4 and § 8 of the MMMA, in violation of MCR 2.114(D).2 The
Court of Appeals affirmed the denial of defendant’s motion and the
imposition of the financial sanction.3
Now, however, providing little in the way of guidance to the trial
court as to why it may have erred in its judgment, this Court remands
the instant matter to that court so that the $500 assessment can be
reexamined, “taking into consideration the wide latitude given to the
judgment of criminal defense counsel when applying MCR 2.114(D)(2)
and a criminal defendant’s right to present a defense.” In support of its
decision, the majority cites two cases: (1) this Court’s 1992 order in In re
Minock,4 and (2) this Court’s 1984 opinion in People v Hayes.5 But
neither decision sheds a great deal of light on any potential error by the
trial court. The cited order in Minock merely states that the motion to
suppress at issue in that case “was not obviously frivolous.”6 No
reasoning whatsoever was provided as to how the Court arrived at that
conclusion, and were it not for an accompanying statement from Justice
BOYLE and Justice RILEY, it would be unclear whether MCR 2.114(D)(2)
was implicated in that case at all.7 And in Hayes, although the Court
acknowledged the right to present a defense under the Michigan and

1
See MCL 333.26424; MCL 333.26428.
2
MCR 2.114 was repealed effective September 1, 2018, more than a
year after the trial court denied defendant’s motion and subsequently
denied reconsideration. Nevertheless, the provisions of the former rule
applicable to those who sign frivolous motions have been reincorporated
into the Michigan Court Rules under MCR 1.109(E)(6).
3
People v Krestel, unpublished per curiam opinion of the Court of
Appeals, issued June 11, 2019 (Docket No. 341463), pp 11-13.
4
In re Minock, 441 Mich 881 (1992).
5
People v Hayes, 421 Mich 271 (1984).
6
Minock, 441 Mich 881.
7
Id. (BOYLE and RILEY, JJ., concurring in part and dissenting in part).
 ORDERS IN CASES 1141
United States Constitutions, we were concerned there with the constitu-
tionality of a statute barring the invocation of an insanity defense as a
“sanction” for a criminal defendant’s failure to cooperate with psychiatric
examinations, not the interplay between the constitutional right to
present a defense and the financial sanction imposed under
MCR 2.114(D)(2).8 Indeed, the citation of Hayes is particularly inapt as
applied to this case because, in vacating the trial court’s $500 assess-
ment, the majority cites a case in which the Court ultimately held that
the right to present a defense did not render the statutory “sanction” at
issue unconstitutional.9
I am cognizant of attorneys’ responsibility to zealously advocate on
behalf of their clients10 and that—as the trial court acknowledged in
addressing defendant’s motion for reconsideration—“a party must re-
ceive some type of reasonable notice and an opportunity to be heard
before the imposition of sanctions under MCR 2.114.”11 And while I
agree with the majority’s assertion that defense counsel should be given
“wide latitude” when considering the propriety of sanctions under
MCR 2.114(D)(2), I note that a trial court’s decision to impose sanctions
is reviewed for an abuse of discretion.12 This occurs only when a trial
court’s decision results in an outcome that falls outside the range of
principled outcomes.13 It is not always an easy hurdle to clear for
criminal defendants, and because the lower courts have, in my view,
adequately outlined the reasons favoring the imposition of the sanction,
I am not persuaded that further action in the trial court is necessary.
The majority’s nearly bare citations of Minock and Hayes do not
convince me otherwise.
For these reasons, I would deny defendant’s application for leave to
appeal.

Leave to Appeal Denied July 10, 2020:

PEOPLE V TOBY WOODS, No. 161539; Court of Appeals No. 353483.

Leave to Appeal Denied July 15, 2020:

PEOPLE V BRIAN WARREN, No. 161182; Court of Appeals No. 351202.

BURTON-HARRIS V WAYNE COUNTY CLERK, No. 161564; Court of Appeals
No. 353999.

8
See Hayes, 421 Mich at 278-279.
9
Id. at 278-283.
10
See People v Mitchell, 454 Mich 145, 170 (1997).
11
Vittiglio v Vittiglio, 297 Mich App 391, 405 (2012).
12
See Casey v Auto Owners Ins Co, 273 Mich App 388, 404 (2006).
13
Id., citing Woodard v Custer, 476 Mich 545, 557 (2006).
1142 505 MICHIGAN REPORTS
Leave to Appeal Before Decision by the Court of Appeals Denied July 15,
2020:

WAYNE COUNTY JAIL INMATES V LUCAS, No. 161566; Court of Appeals No.
354075.

Rehearing Denied July 15, 2020:

PEOPLE V ALVIN JENKINS, No. 158298; opinion at 505 Mich 16.

Reconsideration Denied July 15, 2020:

PEOPLE V IHAB MASALMANI, No. 154773; Court of Appeals No. 325662.

Leave to appeal denied at 505 Mich 1090.
SANDERS V TUMBLEWEED SALOON, INC, No. 158789; Court of Appeals No.
338937. Leave to appeal denied at 505 Mich 1069.

Leave to Appeal Before Decision by the Court of Appeals Denied June 4,

2020:

HOUSE OF REPRESENTATIVES V GOVERNOR, No. 161377; Court of Appeals

No. 353655.
BERNSTEIN, J. (concurring). I agree with my fellow Justices that this
case presents extremely significant legal issues that affect the lives of
everyone living in Michigan today. And that is exactly why I join the
majority of this Court in denying the parties’ bypass applications—
because I believe that a case this important deserves full and thorough
appellate consideration.
Additionally, with the issuance of Executive Order No. 2020-110,
“shelter in place” is no longer mandated in the state of Michigan. While
recognizing that not all restrictions have been lessened (and acknowl-
edging the possibility of future restrictions being reimplemented), I
believe the parties and this Court would benefit most from having the
vital constitutional issues of this case fully argued in the Court of
Appeals before receiving a final determination from our Court. See
League of Women Voters v Secretary of State, 505 Mich 931 (2019)
(denying the plaintiffs’ bypass application). Cases of the ultimate
magnitude, such as this one, necessitate the complete and comprehen-
sive consideration that our judicial process avails.
The significance of this case is undeniable. And with many of the
restrictions on daily life having now been lifted, our eventual consider-
ation of these issues must receive full appellate consideration before our
Court can most effectively render a decision on the merits of this case.
CLEMENT, J. (concurring). In this case, the Legislature advances
several arguments asking us to hold that a law it enacted 75 years ago,
1945 PA 302, codified at MCL 10.31 et seq., is unconstitutional or the
Governor’s actions are beyond the statutory authority contained in that
statute, and that the Governor’s executive orders issued under that
 ORDERS IN CASES 1143

statute in response to the COVID-19 pandemic are consequently invalid.

Contrary to what is suggested by the dissents from the Court’s order
today, the Legislature is not litigating the civil liberties of all Michigan-
ders. Moreover, to read the dissents, one might be left with the
impression that this Court has declined altogether to decide this case. It
has not—it has only declined to decide the case before the Court of
Appeals does. I believe this is both compelled by our court rules and
advisable as a matter of prudence. Because I believe the Court neither
can nor should review this case before the Court of Appeals does, I
concur with the Court’s order denying these bypass applications.
I believe, first, that the rules governing bypass applications are not
satisfied here. Given that “the supreme court shall have . . . appellate
jurisdiction as provided by rules of the supreme court,” Const 1963, art
6, § 4, whether the rules have been satisfied is seemingly of its own
jurisdictional and constitutional significance. Our rules provide that,
to grant a bypass application, “[t]he application must show” either that
“delay in final adjudication is likely to cause substantial harm” or that
“the appeal is from a ruling that . . . any . . . action of the . . . executive
branch[] of state government is invalid[.]” MCR 7.305(B)(4)(a) and (b).
I do not believe the Legislature satisfies either requirement. In its
bypass application, the Legislature argues that the “substantial harm”
prong is satisfied because “Michiganders . . . are living under a cloud of
ambiguity” given the debate over whether the Governor’s executive
orders responding to the COVID-19 pandemic are actually legal. But
this case is not a class action filed on behalf of all Michiganders to
litigate their civil liberties—it is a suit filed by the Legislature
asserting that certain of its institutional prerogatives have been
infringed by the Governor’s actions. The Legislature shows no sub-
stantial harm to the Legislature caused by going through the ordinary
appellate process. As an institution, it is exactly as free to enact
legislation—whether responsive to this pandemic or otherwise—as it
was before any of the Governor’s executive orders were entered.1 As to
the “invalidity of executive action” prong, the Legislature argues that
“this appeal involves a ruling that has already declared” Executive

1
Justice VIVIANO argues that the Legislature’s separation-of-powers
argument, if vindicated, would be a “substantial harm,” and that “[a]t
the bypass stage, we need not decide the merits of the Legislature’s
separation-of-powers argument.” I agree that we need not decide those
merits, and we are not by denying this bypass application. Given the
novelty of the Legislature’s standing argument, however, I do not
believe it can show that it has suffered a substantial harm at this point
with the certainty required to justify the extraordinary act of granting
a bypass appeal. After Court of Appeals review, the Legislature would
need to show only that either “the issue involves a substantial question
about the validity of a legislative act,” “the issue has significant public
interest and the case is one . . . against . . . an officer of the state . . . in
the officer’s official capacity,” or that “the issue involves a legal principle
1144 505 MICHIGAN REPORTS
Order No. 2020-68 invalid. However, the Legislature does not appeal
that ruling—rather, it appeals the ruling that Executive Order No.
2020-67 and its successors are valid. In my view, the Legislature’s
inability to satisfy MCR 7.305(B)(4) is fatal to its bypass application.2
Since the Michigan Constitution commits to us the ability to prescribe
our own appellate jurisdiction, we are obliged to scrupulously adhere to
the restrictions we have imposed on ourselves if we are to sit in
judgment of the constitutionality of 1945 PA 302 and the Governor’s
actions under it.3

of major significance to the state’s jurisprudence.” MCR 7.305(B)(1)

through (3). I predict these showings will be much easier to make.
2
Justice ZAHRA argues that “even assuming there is a shortcoming in
the Legislature’s application, that defect is cured by the Governor’s”
bypass cross-appeal, but I disagree. The court rules list what an
application for leave to appeal “must show,” MCR 7.305(B), and the
Legislature’s application does not make the required showing. There is
no indication under the rule that a party who fails to make a required
showing can have its application rehabilitated by the other side. I am
also unpersuaded by Justice VIVIANO’s citation of the rules of the
Supreme Court of the United States. Justice VIVIANO does not deny that
the language used there is different from our rules and requires a
showing only “that the case is of such imperative public importance as
to justify deviation from normal appellate practice . . . .” Sup Ct Rule 11.
Our general rules governing leave to appeal require a similar showing,
see MCR 7.305(B)(1) through (3), but for a bypass application our rules
require the additional showing, beyond the importance of the issues, of
either substantial harm or that the case is an appeal from a ruling that
certain legislative or executive actions are invalid, MCR 7.305(B)(4). I do
not believe such a showing is made here. Nor do I believe that the
decisions of other state supreme courts, with different court rules,
should control our application of our court rules.
3
Justice VIVIANO asserts that “[i]t is indisputable that our Court has
jurisdiction over this case,” but with a plurality of this Court concluding
otherwise, it is plainly disputable. An application “must show” the items
included in the list. MCR 7.305(B). Echoing that language, commentary
on our rules also characterizes it as mandatory. See Gerville-Réache,
Expediting Review, § 7.23, p 199 in Michigan Appellate Handbook
(Shannon & Gerville-Réache eds, 3d ed, January 2018 update) (remark-
ing that a bypass application “must show” the grounds listed in MCR
7.305(B)(4)). Moreover, the original form of the rule provided only that
bypass applications show that “delay in final adjudication is likely to
result in substantial harm”; the additional option in MCR 7.305(B)(4)(b)
that a bypass application can also show that it is an appeal from a ruling
that various forms of law or government action are invalid was added in
2002. See 466 Mich lxxxvi, lxxxix (2002). Since such a judicial declara-
 ORDERS IN CASES 1145
I also concur with denying the Governor’s bypass cross-appeal. “It is
a general rule in this state . . . that only a party aggrieved by a decision
has a right to appeal from that decision,” meaning that “ ‘[a] party who
could not benefit from a change in the judgment has no appealable
interest.’ ” Ford Motor Co v Jackson (On Rehearing), 399 Mich 213,
225-226 (1976) (citation omitted). It is, at minimum, uncertain to me
whether the Governor is aggrieved by the decision of the Court of Claims
such that she would have appellate standing at this juncture. On the one
hand, the Court of Claims ruled that EO 2020-68 was an invalid evasion
of the requirement under MCL 30.403(3) and (4) of the Emergency
Management Act (EMA), MCL 30.401 et seq., that the Legislature
approve disaster and emergency declarations after 28 days; invalidating
EO 2020-68 falls within the terms of MCR 7.305(B)(4)(b) and is arguably
the sort of appealable interest an appealing party must possess. How-
ever, the Court of Claims also ruled that MCL 10.31(1) was an adequate
basis for all of the Governor’s substantive orders that have purported to
regulate much of life in Michigan after April 30, 2020.4 Because no
substantive regulation issued by the Governor has been held invalid, I
question whether the Court of Claims’ ruling that EO 2020-68 invalidly
evaded the EMA is anything more than an advisory opinion.5 And,

tion would already have fallen within the grounds listed in MCR
7.305(B)(1) through (3), the fact that MCR 7.305(B)(4)(b) was added to
MCR 7.305(B)(4) indicates that we understood it to be mandatory for
bypass applications; otherwise, it would be redundant of what is already
stated in MCR 7.305(B)(1) through (3). Our past practice also indicates
it is mandatory, as we have denied bypass applications on the basis that
the grounds in the rule were not satisfied. See White v Detroit Election
Comm, 495 Mich 884 (2013); Barrow v Detroit Election Comm, 495 Mich
884 (2013). (Note that at the time White and Barrow were decided, this
requirement was found at MCR 7.302(B)(4). It was moved to MCR
7.305(B)(4) as part of a general rewrite of the rules governing practice in
this Court. See 497 Mich xcxi, cxcv (2015).)
4
The Legislature approved an extension of the Governor’s initial
emergency declaration under the EMA until April 30, see 2020 SCR 24,
but did not adopt further extensions.
5
On the other hand, the Governor may have a viable contingent
cross-appeal, in which she challenges the decision of the Court of Claims
to the extent that the appellate courts reverse the Court of Claims’
decision upholding her executive orders under MCL 10.31(1). If “the
cross-appellant, like any appellant, must be an aggrieved party in some
respect, meaning it must be able to identify a concrete and particular-
ized injury that can be redressed in the context of the cross-appeal,”
Rose, Appeals of Right in the Court of Appeals, § 4.46, p 100, in Michigan
Appellate Handbook (Shannon & Gerville-Réache eds, 3d ed, Janu-
ary 2018 update), it may be that the Governor’s interest in maintaining
any cross-appeal would be contingent on the outcome of the Legisla-
1146 505 MICHIGAN REPORTS
because “it is only opinions issued by the Supreme Court and published
opinions of the Court of Appeals that have precedential effect under the
rule of stare decisis,” Detroit v Qualls, 434 Mich 340, 360 n 35 (1990), the
Court of Claims’ remarks about EO 2020-68 will not control future
litigation over the propriety of the Governor’s actions under the EMA
—even future COVID-19 litigation.6 The Governor appears aware of this
reality, because when she announced a subsequent extension of the
COVID-19 state of emergency in Executive Order No. 2020-99, she
continued to declare emergencies under both MCL 10.31(1) and—
“[s]ubject to the ongoing litigation”—the EMA. Given my qualms, I am
not convinced that Justice ZAHRA is correct to allege that the Governor’s
bypass cross-appeal “cure[s]” any defects in the Legislature’s applica-
tion. I am also unmoved by the fact that both parties ask us to grant
these bypass applications. This Court writes the court rules; I do not
believe the parties can rewrite the rules for us by their mutual
agreement so as to bootstrap their way to jurisdiction.
I also do not believe it would be prudent to hear this case at this
juncture. The statutes at issue have seen very little litigation arise
under them, meaning there is little on-point authority. Moreover, the
theory by which the Legislature asserts standing to bring this suit in the
first place is entirely novel in Michigan. Further appellate review and
development of the arguments will only assist this Court in reaching the
best possible answers.7 Until a vaccine for COVID-19 is invented, our

ture’s appeal. Given these uncertainties, however, at minimum I do not

believe it would be wise to exercise any discretion we may have to hear
this case without allowing it full appellate review. For all these reasons,
I do not think the Governor’s bypass cross-appeal rehabilitates the
Legislature’s defective initial bypass application.
6
Justice VIVIANO questions whether my reasoning renders the bypass
appeal provision nugatory given that, in bypassing the Court of Appeals,
a party will necessarily “be appealing a nonbinding decision.” But this is
clearly incorrect. Had the Governor been told that her substantive
executive orders were invalid, she would have been ordered by a court to
stop doing something she was doing, and exposed to contempt sanctions
if she did not, without regard to whether the reasoning was binding on
future disputes. I question whether the Court of Claims’ ruling here
aggrieved the Governor because it essentially answered the hypotheti-
cal question of whether her executive orders would be valid if MCL
10.31(1) were not an adequate basis for them. Such a ruling does not
appear to control her current orders, nor is its reasoning binding on
future disputes. It is, at minimum, a sufficiently uncertain question that
I do not believe this Court can properly predicate its review of this case
on this foundation.
7
As Justice VIVIANO points out in his dissent, there are numerous
cases relating to COVID-19 making their way through our state and
federal courts. While many of these cases raise issues distinct from
 ORDERS IN CASES 1147
society will be living with the risk of the spread of this disease and the
argued necessity of emergency measures to mitigate that spread. There
is little prospect of these disputes being rendered moot, and I have little
doubt that the Court will take them up in the future.
I also disagree that this Court should heavy-handedly direct the
Court of Appeals in its management of this litigation. First of all, if
there is a need for expedited consideration, the parties are free to
request it from the Court of Appeals, which is better positioned to know
how best to balance the need for expeditious review with the resources
it has available to scrutinize the arguments being made. I disagree
with Justice VIVIANO that the Court of Appeals will simply put this case
on any “conveyor belt,” and I believe they will recognize “this is no
ordinary case.” Second, the cases in which we most often direct
expedited review are election cases in which the parties have exter-
nally imposed deadlines they must satisfy to submit paperwork or
print ballots. See, e.g., League of Women Voters v Secretary of State, 505
Mich 931 (2019). Third, I believe many of the observations that justify
denying this bypass application also justify declining to order an
extraordinary schedule in the Court of Appeals. Justice ZAHRA argues
that “the people of this state have a great interest in the final
disposition of these issues,” but the people of this state are not a party
to the case—the Legislature is, suing in its institutional capacity and
arguing that its prerogatives are being violated. Until a final judicial
resolution of these issues is reached, the Legislature is free in the
interim to avail itself of the ordinary legislative process under the
Constitution. That this Court has resolved this bypass application in
less than two weeks is, I believe, evidence enough that we are treating
these issues with appropriate urgency.
As noted, the issue before us is not whether we will ever decide these
issues, but rather whether we will decide them before the Court of
Appeals has considered them. Because I conclude that we neither can
nor should grant these bypass applications, I concur with our order
denying them.
MCCORMACK, C.J., and CAVANAGH, J., join the statement of CLEMENT, J.
MARKMAN, J. (dissenting). I dissent from the majority’s decision to
deny the parties’ applications to bypass the Court of Appeals in order to
expedite the final resolution of the present dispute. Indeed, in all
likelihood, the consequence of our decision today will be to ensure that
this Court never issues a meaningful decision concerning the nature and
required procedures of the emergency authority of this state. For the
following reasons, I would grant these applications.

those raised by the Legislature in this case, in at least one, the Court of
Appeals has granted leave to appeal on a very similar issue—“whether
the trial court abused its discretion in ruling that plaintiff’s claim
regarding the unconstitutionality of the [emergency powers of the
governor act], MCL 10.31 et seq., was unlikely to succeed.” Mich United
for Liberty v Governor, order of the Court of Appeals, entered May 29,
2020 (Docket No. 353643).
1148 505 MICHIGAN REPORTS
First, I would grant the applications because they pertain to an issue
of the greatest practical importance to the more than 10 million people
of this state: the validity of executive orders declaring a state of
emergency and thereby enabling a single public official to restrict and
regulate travel, assembly, business operations, educational opportuni-
ties, freedoms and civil liberties, and other ordinary aspects of the daily
lives of these people, including matters of crime and punishment and
public safety. To put it even more specifically, the present applications
place into question the entirety of the processes and procedures by
which the executive orders that have defined nearly every minute, and
nearly every aspect, of the lives of “we the people” of Michigan for more
than the past two months were fashioned into law.
Second, I would grant the applications because, notwithstanding
their vast differences in apprehending the legal and constitutional
preconditions required of an emergency order, the parties commonly
argue that this Court should grant their bypass applications in light of
the profound significance and practical impact of the present emergency
orders.
Third, I would grant the applications because they implicate a “case
or controversy” of the greatest historical consequence between the two
representative and accountable branches of our state government:
each in concurrence seeking the counsel of the third branch as to what
is demanded by the constitutional charter that has guided the people’s
government for the past 185 years. The Governor contends that her
office possesses the authority to issue the executive orders in response
to the present emergency, while the Legislature in response contends
that her office lacks such authority absent its own participation. Put
simply, what is at issue is how the extraordinary emergency powers of
government are to be invoked and how the decision-makers of our two
most fundamental constitutional institutions are respectively to be
engaged.
Fourth, I would grant the applications because time is an altogether
relevant consideration to what is required of this judiciary. Our state
continues in the midst of an emergency in which both the lives and the
liberties of its people are being lost each day. By today’s action, it is
unlikely that this Court will ever decisively resolve the present dispute
and thus that whatever errors or excesses may have been made in the
course of the present emergency will never be pronounced or remedied
but left only to be repeated on the occasion of what inevitably will arise
some day as our next emergency.
Fifth, I would grant the applications because this case cries out for
the most expedited and final review of the highest court of this state. If
there is a matter, if there is an obligation, that compels the most urgent
action of this Court, it is the present matter, our present obligation. This
case defines the very purpose and the fundamental responsibility of a
supreme court of this union of states. By our decision to deny the
applications for bypass, we bypass an exercise of authority to decide
what is perhaps the most substantial dispute ever presented to this
 ORDERS IN CASES 1149
Court, not only diminishing our standing among the judicial institutions
of our federal system but diminishing our relevance within the judicial
institutions of this state itself.
ZAHRA, J., joins the statement of MARKMAN, J.
ZAHRA, J. (dissenting). I dissent from this Court’s order denying both
litigants’ applications for leave to appeal from the Court of Claims,
thereby leaving intact without immediate review the Governor’s
various emergency orders issued in response to the COVID-19 pan-
demic and the Court of Claims order ruling in part that the Governor
acted erroneously under MCL 30.401 et seq. I would grant the
applications and decide the matters forthwith. I also dissent from this
Court’s inexplicable failure to direct the Court of Appeals to hear this
case on an expedited basis. This case presents palpable constitutional
questions that are of compelling interest to every resident, business,
and employer in Michigan. The instant matter is arguably the most
significant constitutional question presented to this Court in the last
50 years. By granting both applications, this Court could put to rest
with finality whether and to what extent the legislation on which the
Governor relied to issue the serial emergency COVID-19 orders
remains a valid source of legal authority for those orders. Admittedly,
deciding these difficult questions is no easy task. But the people of this
state rightly demand that this Court resolve such difficult questions.
Because each resident’s personal liberty is at stake, it is emphatically
our duty to decide this case. I dissent from the Court’s failure to
immediately undertake this duty.
Life for people throughout Michigan was turned on its head when on
March 10, 2020, in response to the COVID-19 pandemic that threatened
widespread contagion, serious and sometimes fatal illness, and a critical
overload to our health system, the Governor issued Executive Order No.
2020-4, declaring a state of emergency under the authority of two
separate statutory delegations of emergency authority: 1945 PA 302,
known as the “emergency powers of the governor act” (EPGA), MCL 10.31
et seq.; and the Emergency Management Act (EMA), MCL 30.401 et seq.
The EMA carries a 28-day limit on the amount of time in which the
Governor can issue orders under a state of emergency before the act
requires the Governor to declare an end to the emergency, unless both
houses of the Legislature extend the period through a resolution.1
Over the next several weeks, the Governor issued numerous
additional statewide orders generally requiring people to stay at home
unless their departure from home was essential, closing all nonessen-
tial2 businesses, closing all schools before the end of the school year, and

1
MCL 30.403(3). The Governor, however, argues that the Court of
Claims erred by concluding that she cannot issue new orders reinstitut-
ing the effect of her prior orders at the end of each order issued under
the EMA.
2
Many of the Governor’s orders distinguished essential from nones-
sential activity. Still, in other areas, the people were left to wonder
1150 505 MICHIGAN REPORTS
seriously restricting travel, assembly, and other aspects of daily life.
Law and nonemergency medical offices throughout Michigan were
closed indefinitely. Both houses of the Michigan Legislature granted the
Governor an extension of authority to April 30, 2020, but neither the
House of Representatives nor the Senate passed a resolution to grant any
further extension. On the day the EMA expressly required the declaration
of emergency to be rescinded, the Governor rescinded the declaration and,
within minutes, declared another statewide emergency on the basis of
COVID-19, ordering that all the previous orders should now be consid-
ered effective under the new order. The Governor separately declared a
state of emergency under the EPGA and ordered that all previous orders
should be considered effective under that declaration as well.
People throughout Michigan were understandably frustrated over
their inability to leave home to, among other things, work, engage in
commerce, obtain preventative health care, visit friends and family, and
maintain their personal appearance with salon and grooming services.
Sporadic peaceful protests broke out throughout the state in which some
residents practiced civil disobedience. The political branches of govern-
ment divided over the issue. The Legislature believed it should be
permitted a seat at the table in crafting emergency orders, and the
Governor proclaimed unilateral authority to act.
The Michigan House of Representatives and the Michigan Senate
sued the Governor in the Court of Claims, seeking a declaratory ruling
that the Governor’s authority under the EMA had expired and that the
EPGA pertained only to local matters and did not authorize a state-
wide declaration of emergency. The Governor responded that each
source of statutory authority continued to provide her with the power
to issue orders for the protection of the public health. The Court of
Claims agreed with the Legislature that the Governor’s authority
under the EMA had expired, but held that the EPGA granted the
Governor independent authority to issue orders that would protect
lives and control the emergency situation created by COVID-19. That
same day, the Legislature filed an application for leave to appeal in the
Court of Appeals and filed in this Court an application for leave to
appeal under MCR 7.305(B)(4), which permits “an appeal before a
decision of the Court of Appeals.”
The Governor filed a brief in response to the Legislature’s application
in this Court as well as an application for leave to appeal challenging
two holdings of the Court of Claims: (1) the conclusion that the
Legislature has standing to bring a declaratory action, and (2) the
holding that Executive Order No. 2020-68 was invalid because the
Governor’s authority to act under the EMA had expired.
Significantly, both of our coequal branches of government (the
parties to this litigation) recognize the gravity of this matter and have
asked this Court to resolve the constitutional questions before the Court
without the benefit of intermediary (and prolonged) review from our

whether certain activities in which they wished to engage were permit-

ted under the various orders. See note 3 of this statement.
 ORDERS IN CASES 1151
Court of Appeals. Because MCR 7.305(B)(4) is perfectly satisfied,3 this
Court should forthwith decide the following three questions:

3
Not only would I accept the parties’ olive branch and address this
matter to maintain comity within our state government, our court rules,
namely MCR 7.305(B)(4), emphasize this Court’s defined role to deter-
mine matters in which:
(a) delay in final adjudication is likely to cause substantial
harm, or
(b) the appeal is from a ruling that a provision of the Michigan
Constitution, a Michigan statute, a rule or regulation included in
the Michigan Administrative Code, or any other action of the
legislative or executive branches of state government is invalid[.]
My concurring colleagues, by contrast, believe a bypass of the Court of
Appeals is not warranted because the Legislature has failed to satisfy
the requirements of MCR 7.305(B)(4). In arguing its case to bypass the
Court of Appeals, the Legislature asserts:
Delaying final adjudication would do “substantial harm,” as
citizens and lawmakers would be left in a state of uncertainty at a
time when confident decision-making is a requirement for survival.
Michiganders are living under and attempting to interpret orders
that never should have been implemented over their Legislature’s
objection; at the very least, they are living under a cloud of
ambiguity that can be rectified by this Court. MCR 7.305(B)(4)(a).
The ultra vires nature of the Governor’s actions puts at risk people
who are relying on governmental direction to guide their conduct.
Lastly, this appeal involves a ruling that has already declared one
related “action of the . . . executive branch[] of state government
invalid.” MCR 7.305(B)(4)(b). [Alterations in original.]
I am persuaded that the requirements of MCR 7.305(B)(4) are satisfied.
As representatives of the people, the Legislature clearly has an interest in
providing certainty “at a time when confident decision-making is a
requirement for survival.” It is no secret that many residents and
businesses have struggled to understand the Governor’s emergency
executive orders related to the COVID-19 virus. See DesOrmeau,
After 102 Executive Orders, Confusion is Commonplace on What’s Allowed
in Michigan and What Isn’t <https://www.mlive.com/public-interest/
2020/05/after-101-executive-orders-confusion-is-commonplace-on-whats-
allowed-in-michigan-and-what-isnt.html> (accessed June 2, 2020) [https:
//perma.cc/K5WK-4RCY]. Further, the Governor makes no attempt to
rebut the Legislature’s assertion that it has been particularly harmed by
the Governor’s usurpation of Legislative power through her emergency
executive orders.
1152 505 MICHIGAN REPORTS
(1) whether the Michigan Senate and the Michigan House of Repre-
sentatives have standing in this case to seek declaratory relief in the
Court of Claims,
(2) whether the Governor has continuing authority under the Emer-
gency Management Act (EMA), MCL 30.401 et seq., to issue emergency
executive orders related to the COVID-19 virus, and
(3) whether the Governor has continuing authority under the emer-
gency powers of the governor act (EPGA), MCL 10.31 et seq., to issue
emergency executive orders related to the COVID-19 virus.
The members of this Supreme Court, Michigan’s court of last resort,
have been elected to serve as the final arbiters of law and constitutional
questions that are of significant public interest and importance to our
state. No issue is of greater public interest or importance than the
resolution of whether the Governor was within her constitutional
authority to deprive the 10-million-plus residents and the thousands of
business owners of Michigan of their personal freedom and economic
liberty. Unlike the legislative and executive branches of government,
which make and enforce laws through a political process, the judiciary
is the nonpolitical branch of government charged with the extremely
limited but all-important role of interpreting only those laws and
constitutional questions presented in cases and controversies brought to
the Court by adversaries in litigation. It is exactly because this Court is
the pinnacle of the apolitical branch of government and limited in the
scope of its duties that the people trust and accept our resolution of
disputes, even when we are sharply divided when rendering our
opinions. This is all the more true where, as here, the case presents a
constitutional question of significant magnitude that divides our politi-
cal branches of government. The people of Michigan expect this Court to
resolve this dispute. We should do so.
And yet, beyond declining to grant the Legislature’s application, the
Court’s majority also fails to order the Court of Appeals to hear and
resolve these issues on an expedited basis. I make no attempt to
explicate this failure. Again, both of our coequal branches of government
have asked for these significant constitutional questions to be answered
as soon as possible. And the people of this state have a great interest in
the final disposition of these issues as soon as possible. To the extent a
majority of this Court has concluded that the wisdom of our intermedi-
ate appellate court is essential to our resolution of these weighty issues,
there is no reason why this Court should not order the Court of Appeals
to hear and decide these questions forthwith. The Court’s failure to, at
a minimum, require the Court of Appeals to decide these cases on an
expeditious basis fails to accord the respect due to our coequal branches

Moreover, even assuming there is a shortcoming in the Legislature’s

application, that defect is cured by the Governor’s application, which
expressly invites a challenge to the Court of Claims’ holding that the
Governor’s actions were invalid under the EMA. See MCR
7.305(B)(4)(b). Again, both of our coequal branches of government want
these questions answered. We should honor their requests.
 ORDERS IN CASES 1153
of government and displays insensitivity to the people of this state who
are entitled to know with certainty whether the constraints of liberty
imposed by the emergency orders under which they labor are constitu-
tionally permissible.
MARKMAN, J., joins the statement of ZAHRA, J.
VIVIANO, J. (dissenting). The Court today turns down an extraordi-
nary request by the leaders of our coequal branches of government to
immediately hear and decide a case that impacts the constitutional
liberties of every one of Michigan’s nearly 10 million citizens.1 See Walsh
v River Rouge, 385 Mich 623, 639 (1971) (“The invocation of a curfew or
restriction on the right to assemble or prohibiting the right to carry on
businesses licensed by the State of Michigan involves the suspension of
constitutional liberties of the people.”). Because I believe we are duty-
bound to give our immediate attention to this case, I cannot join an order
that nonchalantly pushes it off for another day.
The Governor and the Legislature do not seem to agree on many
things these days, but they both agree that this case merits our
immediate attention. In addition, since they individually and collec-
tively represent every single resident of our state, one can surmise that
the views of the Governor and Legislature represent the diverse views of
large numbers of our citizens. They are crying out to this Court for help
because there is a significant amount of confusion in our state over what
the Governor’s executive orders mean and whether they are enforce-
able.2 And the instant case is not the only one involving questions
regarding the validity of the Governor’s actions to combat COVID-19.3 A
substantive ruling on the merits of this case by our Court would not only

1
Justice CLEMENT is of course correct that this case does not involve a
direct claim of a constitutional rights violation. But, since the validity of
the Governor’s executive orders are at stake, and it is indisputable that
those orders impinge on the constitutional liberties of our citizens, it is
rudimentary logic—not hyperbole—to say that the case impacts the civil
liberties of our citizens.
2
See, e.g., DesOrmeau, After 102 Executive Orders, Confusion is Common-
place on What’s Allowed in Michigan and What Isn’t <https://www.mlive.
com/public-interest/2020/05/after-101-executive-orders-confusion-is-common-
place-on-whats-allowed-in-michigan-and-what-isnt.html> (accessed June 2,
2020) [https://perma.cc/K5WK-4RCY].
3
There are at least five other cases involving challenges to COVID
restrictions in the lower courts: Martinko v Governor (Docket No.
353604); Slis v Michigan (Docket No. 351211); Dep’t of Health & Human
Servs v Manke (Docket No. 353607); Mich United for Liberty v Governor
(Docket No. 353643); and Associated Builders & Contractors of Mich v
Governor (Docket No. 20-000092-MZ). Cases concerning the restrictions
are also proliferating in the federal courts. See Mitchell v Whitmer (Case
No. 1:20-cv-00384) (WD Mich); League of Indep Fitness Facilities &
Trainers, Inc v Whitmer (Case No. 1:20-cv-00458) (WD Mich); Allen v
1154 505 MICHIGAN REPORTS
provide clarity to the Governor, the Legislature, and the public, but it
would also assist the lower courts as they continue to address these
issues in other matters.
I agree with Justice ZAHRA that both applications easily satisfy the
requirements of our bypass rule, MCR 7.305(B)(4). As an initial matter,
it is clear that our Court has jurisdiction here under MCR 7.303, which
governs the jurisdiction of the Supreme Court. Under MCR 7.303(B)(1),
we have discretion to “review by appeal a case pending in the Court of
Appeals or after decision by the Court of Appeals (see MCR 7.305).”
Contrary to Justice CLEMENT’s suggestion, we have never held that the
grounds for discretionary appeal are jurisdictional—I see no reason to
do so now. It is indisputable that our Court has jurisdiction over this
case, if we choose to assert it.
The Legislature’s bypass application clearly shows that a “delay in
final adjudication is likely to cause substantial harm[.]” MCR
7.305(B)(4)(a). The second question presented in the application is
“whether the Emergency Powers of the Governor Act [MCL 10.31 et seq.]
is consistent with the separation-of-powers doctrine in the Michigan
Constitution, where the act . . . results in the usurpation of the Legis-
lature’s role in formulating public policy[.]” The Legislature further
asserts that “COVID-19 presents real problems that call for a compre-
hensive and deliberative governmental response. The Court should
restore the proper constitutional order and allow the branches to get to
work—together.”4 In short, the Legislature is arguing that because the
Governor has claimed the authority to exercise core legislative powers
for an indefinite period, the Legislature has been displaced from its
normal constitutional role as the branch with “the authority to make,
alter, amend, and repeal laws.” Harsha v Detroit, 261 Mich 586, 590
(1933). See Const 1963, art 4, § 1 (stating that with certain exceptions
not relevant here, “the legislative power of the State of Michigan is
vested in a senate and house of representatives”); Const 1963, art 4, § 51

Whitmer (Case No. 2:20-cv-11020) (ED Mich); Mich United Conservation

Clubs v Whitmer (Case No. 1:20-cv-00335) (WD Mich); Mich Nursery &
Landscape Ass’n v Whitmer (Case No. 1:20-cv-331) (WD Mich); Beemer
v Whitmer (Case No. 1:20-cv-323) (WD Mich); VanderZwaag v Whitmer
(Case No. 1:20-cv-325) (WD Mich); Martinko v Whitmer (Case No.
2:20-cv-10931) (ED Mich); Thompson v Whitmer (Case No. 1:20-cv-
00428) (WD Mich); Midwest Institute of Health, PLLC v Whitmer (Case
No. 1:20-cv-00414) (WD Mich); Otworth v Whitmer (Case No. 1:20-cv-
00405-PLM-RSK) (WD Mich); Signature Sotheby’s Int’l Realty, Inc v
Whitmer (Case No. 1:20-cv-00360) (WD Mich). More are sure to follow.
4
See also Michigan Legislature’s Emergency Bypass Application for
Leave to Appeal, p 27 (“In effectively exercising standardless lawmaking
authority to formulate public policy rather than the democratic process,
the Governor has usurped the Legislature’s power.”); id. at 33 (“Nor can
the Governor usurp the lawmaking power merely because she disagrees
with the Legislature’s response to the COVID-19 crisis.”).
 ORDERS IN CASES 1155
(“The public health and general welfare of the people of the state are
hereby declared to be matters of primary public concern. The legislature
shall pass suitable laws for the protection and promotion of the public
health.”). At the bypass stage, we need not decide the merits of the
Legislature’s separation-of-powers argument. It is enough to recognize
the obvious, substantial, and ongoing institutional harm that is being
caused if the Legislature’s claim has merit.
Justice CLEMENT asserts, not incorrectly, that the Legislature still has
the power to enact laws. But that misses the point of the Legislature’s
claim. Absent the Governor’s extraordinary exercise of core legislative
powers during the pandemic, the normal constitutional order would
prevail and the Governor and the Legislature would be compelled to
work together to shape the public policy of our state. Instead of needing
a supermajority vote to override the Governor’s veto and restore the
status quo ante, the Legislature could enact laws and present them to
the Governor by a simple majority vote of each house. And the Governor
would have an incentive—the one our founders built into our system of
government—to work with Legislature to develop bills that she found
acceptable and would be willing to sign into law. The Legislature’s
position, in short, is that by her ongoing and broad exercise of the
legislative power, the Governor has usurped its power and diminished
its institutional role. Being sidelined from its role in shaping public
policy during this pandemic is undoubtedly a substantial harm to the
institutional prerogatives of the Legislature.
The concurring justices give even shorter shrift to the Governor’s
bypass application. For one thing, Justice CLEMENT’s concurrence never
mentions or purports to apply our bypass rule with regard to the
Governor’s application. Instead it offers a series of suppositions on topics
other than whether the Governor is appealing the invalidation of execu-
tive action, which is all that MCR 7.305(B)(4)(b) requires and which is
precisely what the Governor seeks to appeal here. The Court of Claims
invalidated an executive order, No. 2020-68, which the Governor issued
under the Emergency Management Act (EMA), MCL 30.401 et seq.
Justice CLEMENT seems to agree that the Governor has met the
requirements of MCR 7.305(B)(4)(b). The thrust of Justice CLEMENT’s
argument is that the Governor might not be an aggrieved party because,
even though the court struck down her order under the EMA, she was
able to retain all her substantive regulations in an identical order under
the emergency powers of the governor act (EPGA). But the Governor has
good reason for feeling that she is aggrieved even if her regulations
remain standing at this point in the proceedings. “[T]o have standing on
appeal [i.e., to be an aggrieved party], a litigant must have suffered a
concrete and particularized injury” arising from the judgment below.
Federated Ins Co v Oakland Co Rd Comm, 475 Mich 286, 291 (2006).5

5
See also Attorney General v Bd of State Canvassers, 500 Mich 907,
908 n 6 (2016) (ZAHRA and VIVIANO, JJ., concurring) (“ ‘Aggrieved’ is a
term of art defined as ‘having legal rights that are adversely affected;
having been harmed by an infringement of legal rights.’ An ‘aggrieved
1156 505 MICHIGAN REPORTS
The Governor argues that the “EMA provides for a more extensive
structure of governmental action in response to an emergency, and a
more detailed set of powers for the Governor to implement in that
response.” A comparison of the two statutes at issue displays the EMA’s
more elaborate provisions. Compare MCL 10.31 (setting forth the
Governor’s general authority to promulgate orders after proclaiming a
state of emergency) with, e.g., MCL 30.408 and MCL 30.409 (establish-
ing emergency manager coordinators across various institutions and
entities) and MCL 30.411 (providing limited immunity). And, impor-
tantly, the Governor contends that the EMA not only empowers her to
act but affirmatively requires her to declare an emergency or disaster.
Whether these provisions and others differentiate the EMA from the
EPGA, so that the statutes do not conflict, goes to the merits of the
statutory issue in this case, and thus I would not now suggest an
answer. It is enough here that the Governor has raised a colorable
argument that the decision below struck down her executive order,
effectively cabined her statutory tools, and required her to disregard
statutory obligations. This constitutes a concrete and particular injury.
Moreover, consider the implications of Justice CLEMENT’s hunch about
the Governor’s aggrieved-party status. If the Legislature successfully
appealed its claims—either here or in the Court of Appeals—and the
EPGA no longer authorized Executive Order No. 2020-68, then the
Governor would need to fall back on the EMA. But by that point it would
doubtless be too late for her to appeal.6 In other words, the Governor
would become aggrieved only when it would be too late for her to do
anything about it.7
In sum, because the Governor is appealing the invalidation of her
executive actions, her bypass application satisfies MCR 7.305(B)(4)(b).
And she also has claimed sufficient injury from the judgment below. If
the majority wishes to deny the application on other grounds, so be it.
But it should not pretend the Court’s hands are tied by our procedural
rules.8

party’ is ‘a party whose personal, pecuniary, or property rights have

been adversely affected by another person’s actions or by a court’s decree
or judgment.’ Thus, to be ‘aggrieved,’ a party must demonstrate that it
has been harmed in some fashion.”) (citations omitted).
6
Under Justice CLEMENT’s logic, it would not be enough for the
Governor that the Legislature could satisfy the bypass rule in order for
her to bring her appeal.
7
In addition, Justice CLEMENT’s reminder that the Court of Claims’
decision is not binding is irrelevant: it would seemingly always be the
case that a party seeking to bypass the Court of Appeals will be
appealing a nonbinding decision. If this is a meaningful consideration in
rejecting a bypass, then one wonders why we have the rule at all.
8
By denying the bypass, the majority has not only written the bypass
court rule out of the rulebook, it has also put us at odds with the highest
 ORDERS IN CASES 1157
* * *

This case involves some of the most important legal principles that
can arise in a free society. The parties’ briefs reverberate with weighty

courts of many other states who have not faltered in their responsibility
to timely address the significant legal issues arising from their states’
responses to the COVID-19 pandemic. The Pennsylvania Supreme
Court, exercising immediate jurisdiction in a challenge to executive
orders, said it well: “[T]his case presents issues of immediate and
immense public importance impacting virtually all Pennsylvanians and
thousands of Pennsylvania businesses, and that continued challenges to
the Executive Order will cause further uncertainty.” Friends of Danny
DeVito v Wolf, ___ Pa ___, ___ (2020) (Docket No. 68 MM 2020), slip op
at 17. In a similar case, the Kansas Supreme Court exercised expedited
original jurisdiction, explaining that such jurisdiction lay when the
court “determine[s] the issue is of sufficient public concern. Under the
circumstances our state faces, we easily do.” Kelly v Legislative Coordi-
nating Council, 311 Kan 339, ___ (2020) (Docket No. 122765), slip op at
9 (citation omitted). See also In re State of Texas, 602 SW3d 549 (2020)
(Docket No. 20-0394) (addressing whether COVID-19 justified voting by
mail); Seawright v New York City Bd of Elections, ___ NY2d ___ (2020)
(Slip Op No. 02993) (addressing election requirements in light of
COVID-19); Wisconsin Legislature v Palm, 391 Wis 2d 497, ___; 2020 WI
42, ¶ 10 (Wis, May 13, 2020) (exercising original jurisdiction—which
covered cases “ ‘that should trigger the institutional responsibilities of
the Supreme Court’ ”—over the legislature’s challenge of executive
orders because the “order . . . impacts every person in Wisconsin, as well
as persons who come into Wisconsin, and every ‘non-essential business’ ”)
(citation omitted); Cal Attorneys for Criminal Justice v Newsom, order of
the California Supreme Court, entered May 13, 2020 (Case No. S261829),
p 1 (“This mandate proceeding, like others that have recently come
before this court, raises urgent questions concerning the responsibility
of state authorities during the current pandemic to protect the health
and safety of inmates . . . in light of the spread of the novel coronavi-
rus . . . .”); id. at 4 (Liu, J., dissenting) (“As a prudential matter, we
exercise [original mandamus] jurisdiction ‘only in cases in which “the
issues presented are of great public importance and must be resolved
promptly.” ’ If there is any case where exercising our mandamus
jurisdiction is appropriate, this is it.”) (citations omitted); Comm for
Pub Counsel Servs v Chief Justice of the Trial Court, 484 Mass 1029,
1029 (2020) (denying reconsideration of earlier holding that the court
had superintending authority “to stay a final sentence that is being
served, absent a pending appeal or a motion for new trial”); Goldstein
v Secretary of the Commonwealth, 484 Mass 516 (2020) (addressing an
election-signature requirement in light of COVID); In re Abbott,
1158 505 MICHIGAN REPORTS
assertions about our constitutional structure, as well as the need for and
the scope of the Governor’s emergency powers. These issues, and how we
decide them, will have a direct impact on the constitutional liberties of

601 SW3d 802, 63 Tex Sup Ct J 909 (2020) (holding that trial judges
lacked standing to challenge an executive order applying to bail deci-
sions); Comm for Pub Counsel Servs v Chief Justice of the Trial Court, 484
Mass 431, 446 (2020) (exercising general superintendence, under which
the court could “remedy matters of public interest ‘that may cause further
uncertainty within the courts’ ”) (citation omitted); Christie v Common-
wealth, 484 Mass 397 (2020) (hearing petition for immediate release from
custody due to COVID-19 concerns under the court’s general superinten-
dence power); In re Interrogatory on House Joint Resolution 20-1006,
___ P3d ___, ___; 2020 CO 23, ¶ 28 (Colo, 2020) (“We conclude that the
interrogatory [by the General Assembly asking for guidance in light of
conditions posed by COVID-19 on a constitutional requirement] now
before us presents an important question upon a solemn occasion.
Accordingly, we exercise original jurisdiction. The General Assembly and
the public at large urgently need an answer to the interrogatory to avoid
uncertainty surrounding the length of the remaining regular session and
its impact on pending bills and bills yet to be introduced.”); cf. Strizich v
Mont Dep’t of Corrections, order of the Montana Supreme Court, entered
May 5, 2020 (Case No. OP 20-0225) (declining to consider petition for
injunctive relief because the case, involving COVID-19 and state correc-
tional facilities, was fact-intensive); Disability Rights Mont v Mont
Judicial Districts 1-22, order of the Montana Supreme Court, entered
April 14, 2020 (Case No. OP 20-0189) (denying petition to exercise
mandamus power because the request involved factual issues and the
legal contention failed on the merits).
It is noteworthy, too, that in the United States Supreme Court, the
significance of the issues would alone justify bypassing the court of
appeals. See also Sup Ct Rule 11 (“A petition for a writ of certiorari to
review a case pending in a United States court of appeals, before
judgment is entered in that court, will be granted only upon a showing
that the case is of such imperative public importance as to justify
deviation from normal appellate practice and to require immediate
determination in this Court.”) (emphasis added). Indeed, “[t]he writ . . .
has been granted in some of the most important cases in [the last]
century.” Lindgren & Marshall, The Supreme Court’s Extraordinary
Power to Grant Certiorari Before Judgment in the Court of Appeals, 1986
Sup Ct Rev 259, 259 (1986); see Dames & Moore v Regan, 453 US 654,
667-668 (1981) (“Arguing that this is a case of ‘imperative public impor-
tance,’ petitioner then sought a writ of certiorari before judgment.
Because the issues presented here are of great significance and demand
prompt resolution, we granted the petition for the writ, adopted an
expedited briefing schedule, and set the case for oral argument on
June 24, 1981.”) (citations omitted).
 ORDERS IN CASES 1159
every person who lives or owns property in, or simply visits, our state
while the restrictions are in place. On a fundamental and practical level,
they impact how our friends and neighbors live their lives on a daily
basis, where they can go, with whom, how and when they can practice
their religion, whether they can go out to eat or to the hardware store or
to the beach—in short, nearly every decision they make about nearly
everything that they do. Our Court exists to vindicate the constitutional
rights of our citizens and to be the final expositor of state law; thus, we
are uniquely situated to provide a prompt and final resolution of the
issues presented in this case.
The leaders of our state government believe we should hear this case
now. I agree. But instead of rising to the occasion, the majority order
dodges these issues for now and defers them to the lower courts so they
can weigh in first. Ordinarily, I would agree with this approach. But this
is no ordinary case. It should not simply go on the conveyor belt with all
of the others. Because my colleagues have decided to put it there at least
for the time being, I respectfully dissent.

Order Granting Oral Argument in Case Pending on Application for

Leave to Appeal Entered June 30, 2020:

In re CERTIFIED QUESTIONS FROM THE UNITED STATES DISTRICT COURT,

WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION, No. 161492. On order
of the Court, the questions certified by the United States District Court
for the Western District of Michigan are considered. We direct the Clerk
to schedule oral argument on the questions on Wednesday, September 2,
2020, at 9:30 a.m. The parties to the underlying proceeding shall submit
briefs in conformity with MCR 7.312 and in accordance with the
following briefing schedule: the brief and appendixes of the plaintiffs are
due within 21 days after the date of this order; the brief and appendixes
of the defendants are due within 14 days after service of the plaintiffs’
brief; and a reply is due within 14 days after service of the last timely
filed defendants’ brief. The motion to bifurcate briefing is denied, but
nothing in this order precludes briefing and argument on whether the
Court should exercise its discretion to answer the certified questions.
The Michigan House of Representatives and the Michigan Senate
are invited to file briefs amicus curiae. Other persons or groups
interested in the determination of the certified questions may move the
Court for permission to file briefs amicus curiae.
ZAHRA, J. (concurring). The United States District Court for the
Western District of Michigan has asked this Court to answer two
certified questions concerning the Governor’s “authority . . . to issue or
renew any executive orders related to the COVID-19 pandemic” and
whether the emergency powers of the governor act, MCL 10.31 et seq., or
the Emergency Management Act, MCL 30.401 et seq., or both, violate
“the Separation of Powers and/or the Non-Delegation Clauses of the
Michigan Constitution.” In light of the action taken by the federal court,
the Michigan Legislature filed a motion for reconsideration of this
Court’s denial of the application to bypass the Court of Appeals in House
1160 505 MICHIGAN REPORTS
of Representatives v Governor, Mich ; 943 NW2d 365 (2020).1
The order denying the application to bypass was decided by the
narrowest of margins by this seven-member Court, with vigorous
dissents filed by Justice MARKMAN, Justice VIVIANO, and myself. It suffices
to say that the dissenting justices concluded that in this unprecedented
time amid a global pandemic, it is the duty of this Court to expeditiously
decide the extent to which the Governor can exercise certain statutory
powers, as well as integral constitutional questions relating to whether
the Governor’s thus-far largely unreviewed assertion of these powers
violates our Constitution’s core commitment to the separation of powers.
I concur in the order establishing an expedited briefing schedule and
setting oral arguments for September 2, 2020, in response to the federal
district court’s request that this Court answer its certified questions.2 I
also concur in the Court’s denial of the motion for reconsideration of this
Court’s denial of the application to bypass the Court of Appeals, while
directing that court to issue its decision by August 21st. But my
concurrence in the Court’s actions of today should in no way be taken as
a retreat from my dissenting statement to the order denying the
application for bypass. I believed then and continue to believe today that
“[b]ecause each resident’s personal liberty is at stake, it is emphatically
our duty to decide [these weighty constitutional issues].” Id. at ; 943
NW2d at 371 (ZAHRA, J., dissenting). I also continue to share the
concerns expressed by Justice MARKMAN and Justice VIVIANO in their
dissenting statements to the order denying the application for bypass.
As Justice VIVIANO expressed, the issues at stake “and how we decide
them[] will have a direct impact on the constitutional liberties of every
person who lives or owns property in, or simply visits, our state while
the [Governor’s] restrictions are in place.” Id. at ; 943 NW2d at 378
(VIVIANO, J., dissenting).
Yet, I decline to join Justice MARKMAN’s dissent to the instant order.
I do not take issue with the way Justice MARKMAN has framed the
urgency or importance of the matters before us. If writing on a blank
slate, I most assuredly would hear and decide both In re Certified
Questions and House of Representatives more expeditiously than pro-
vided in the instant order and would do so without review by the Court
of Appeals. But this matter is not presented to us on a blank slate.
Notwithstanding the vigorous dissents of three justices from the
denial of the application for bypass, a majority of this Court concluded

1
The issues presented in House of Representatives are for all intents
and purposes identical to the issues presented in In re Certified
Questions.
2
MCR 7.308(A)(3) provides that should the Court decide to answer
certified questions, briefs are to be filed following the briefing schedule
for calendar cases (which would take 112 days). The instant order has
reduced that period by more than half, allowing just 49 days for the
filing of all briefs. The notice setting oral arguments is also expedited,
with arguments being conducted just days after the briefs are submitted.
 ORDERS IN CASES 1161
that further review by this Court should not occur without the benefit of
review and an opinion from the Court of Appeals. I also took specific
exception to this Court’s failure to order the Court of Appeals to hear
and decide the issues presented in House of Representatives on an
expedited basis and by a date certain.3 Notwithstanding the lack of
direction from this Court, the Court of Appeals decided to expedite these
proceedings. And now with the certified questions presented to us by the
federal court, the order issued by this Court today requires the Court of
Appeals to release its opinion no later than August 21, 2020, leaving
time for the Governor, the Legislature or both to file applications for
leave to appeal in this Court before we hear arguments in the certified-
questions case on September 2, 2020. I believe the instant briefing and
argument schedule is as expeditious as possible under the circum-
stances presented. Without doubt, the people of this state are far better
served by the majority’s instant order than by the Court’s previous order
denying the application for bypass.
Finally, while I do not join Justice MARKMAN’s dissenting statement,
I share his concern that there is “no certainty that this Court will ever
actually answer the certified questions, and, if we do choose to do so,
such a decision will likely be issued sometime in October, November, or
December, perhaps.” Admittedly, it remains entirely possible that after
briefing and argument a majority of the Court will decline to answer the
certified questions or will resolve them in an opinion of the Court
delivered many months later. But I am only one of seven justices on the
Court and can only endeavor to impress upon my colleagues my views on
the law and how it should be applied to the matters that come before this
Court. I accept my responsibility as an elected member of the Supreme
Court and pledge to the people of Michigan that I have and will continue
to endeavor to resolve these important questions as expeditiously as the
Court and present circumstances allow.
VIVIANO, J., joins the statement of ZAHRA, J.
CAVANAGH, J. (concurring). I agree with Justice MARKMAN that “the
underlying issues in these cases pertain to an ‘emergency’ of the most
compelling and undisputed character” and that “ensuring a timely
judicial response to the issues posed” is critically important. It is equally
as critical in my opinion, however, that the judicial response to this
emergency be thoughtfully and thoroughly considered. I also agree with
Justice MARKMAN that “responding to this inquiry through a considered
and thoughtful assessment of the requirements of our law and Consti-
tution” is a high priority. It is such a high priority in my opinion that this
Court should and has taken great pains to ensure that we have the
benefit of full briefing from the parties in In re Certified Questions and
the Court of Appeals’ considered decision in House of Representatives v

3
House of Representatives, ___ Mich at ___; 943 NW2d at 373 (ZAHRA,
J., dissenting) (“And yet, beyond declining to grant the Legislature’s
application, the Court’s majority also fails to order the Court of Appeals
to hear and resolve these issues on an expedited basis. I make no
attempt to explicate this failure.”).
1162 505 MICHIGAN REPORTS
Governor. Those benefits are particularly valuable here because these
cases will require resolution of important constitutional questions of
first impression—perhaps the most imposing exercise we must under-
take as the state’s highest court.
I disagree with Justice MARKMAN that we have not sufficiently
expedited the process in these cases. Any casual observer of the
appellate process in Michigan would recognize that these cases are, in
fact, receiving significantly expedited review. For example, it typically
takes on average between 13 and 14 months for the Court of Appeals to
dispose of a case by opinion.1 In contrast, the timeline from the date that
the House of Representatives claim of appeal was filed in the Court of
Appeals (May 28, 2020) until the day that a decision will be issued by
the panel (August 21, 2020) is just over 12 weeks. Unlike Justice
MARKMAN, who seemingly views the Court of Appeals as a roadblock to
this Court’s consideration of cases, I find immense value in the mean-
ingful analysis and perspective offered by our intermediate appellate
court. To expedite the House of Representatives appeal any further
would be to risk sacrificing the substantive contribution of the Court of
Appeals. Moreover, a typical briefing schedule applied to certified
questions, see MCR 7.308(A)(3), takes 84 days with oral argument, if
granted, ordered sometime after. In regard to the instant Certified
Questions case, today’s order cuts the briefing schedule almost in half to
49 days and schedules oral argument only two weeks after that. Put
simply, these cases are receiving substantially expedited consideration
while still allowing the parties to fully present argument on the complex
issues presented.
I also disagree with Justice MARKMAN’s statement that this Court
resolved the constitutional rights of “one Michigan barber” but is
refusing to resolve the constitutional rights of other Michigan citizens
through its orders in these cases. This is simply not true. In Dep’t of
Health & Human Servs v Manke, 505 Mich 1110; 943 NW2d 397
(2020), this Court unanimously remanded “the barber’s” claims to the
Court of Appeals for full consideration by that court. For the reasons
already stated, our orders today ensure that every citizen will be given
the very same consideration.
Finally, although Justice MARKMAN forecasts that, as a consequence of
this Court’s orders ensuring that these cases receive complete and
adequate consideration, this Court may never “issue[] a meaningful
decision” and is unlikely to “ever decisively resolve the present dispute,”
I, again, must disagree. As Justice CLEMENT aptly noted in her earlier
concurring statement attached to this Court’s order denying bypass in
House of Representatives v Governor, Mich , ; 943 NW2d
365, 369 (2020), “[u]ntil a vaccine for COVID-19 is invented, our society
will be living with the risk of the spread of this disease and the argued
necessity of emergency measures to mitigate that spread.” Since the

1
Michigan Court of Appeals, 2018 Annual Report, p 6, available at
<https://courts.michigan.gov/Courts/COA/aboutthecourt/Documents/Annual
Report2018.pdf> (accessed June 30, 2020) [https://perma.cc/44RA-6642].
 ORDERS IN CASES 1163
time Justice CLEMENT made this observation, there have unfortunately
been no advances in science or public health to eradicate this virus and,
therefore, I continue to join her in believing that there is “little prospect
of these disputes being rendered moot . . . .” Id.
In sum, I believe that the orders issued today in these related cases
best balance the need for a timely judicial response with the equally
important need for a thoughtful and thorough resolution. The judicial
response of this Court should and will be guided by the deliberate
consideration of our intermediate appellate court in House of Represen-
tatives and informed by full briefing by the parties in In re Certified
Questions. I am confident that each and every one of my colleagues
accepts their responsibility as elected members of this Court to honestly
endeavor to resolve these important questions as expeditiously, thor-
oughly, and thoughtfully as possible.
MARKMAN, J. (dissenting). On June 18th, the United States District
Court for the Western District of Michigan certified two questions to this
Court, requesting our opinion concerning (a) whether the Governor
possesses “the authority after April 30, 2020, to issue or renew any
executive orders related to the COVID-19 pandemic,” and (b) whether
the emergency powers of the governor act, MCL 10.31 et seq., or the
Emergency Management Act, MCL 30.401 et seq., or both, violate “the
Separation of Powers and/or the Non-Delegation Clauses of the Michi-
gan Constitution.” In that case, the Court now schedules oral argument
for September 2nd. And in a separate but related case, the Court denies
the Legislature’s motion for reconsideration of our earlier decision to
deny its application to bypass the Court of Appeals, while directing that
court to issue its decision by August 21st.
This Court possesses the authority to expedite its own deliberations
or not; to expedite the deliberations of the Court of Appeals or not; and
to bypass entirely the deliberations of the Court of Appeals or not.
Therefore, where, as here, matters of expedition come before the Court,
the determinative question is less one of legal authority than of
judgment and purpose. In other words, what would be the purpose in a
given case for expediting its resolution or not, for bypassing the Court of
Appeals or not? What would or would not be accomplished by such
expedition? Here, the Court has chosen nominally to expedite the
deliberations of the Court of Appeals in the Legislature’s case and the
deliberations of this Court in the “certified questions” case, while
reaffirming its recent decision not to bypass the Court of Appeals and
thereby to expedite the work of this Court in the Legislature’s case. All
to what purpose?
One obvious “purpose” that might inform our consideration of
matters of expedition would be this: what extent of reasonable expedi-
tion will most likely ensure that our ultimate decision will be rendered
in a sufficiently timely manner to enable that decision to govern the
present dispute, the dispute arising from the present emergency, the
dispute prompting the present lawsuit? That, of course, is the entire
point of both the lawsuit and the certified questions before this Court;
these cases do not pose academic exercises and they are not addressed
to the next pandemic, but their common purpose is to more clearly
1164 505 MICHIGAN REPORTS
define the legal and constitutional relationship between the Legislature
and the Governor in the context of the present emergency. And in this
regard, the Court’s “expedition” of these two cases today seems to me
entirely unfocused. While it is indeed an “expedition” of sorts, it is an
“expedition” unsuited to what must be its principal purpose, to facilitate
the adoption of rules that are faithful to the law and the Constitution
and that will govern the interactions between the Legislature and the
Governor during the COVID-19 emergency of the year 2020.
It has now been 39 days since expedited treatment was first sought by
the Legislature in its lawsuit. And as a result of today’s orders, there will
be 52 additional days before even an intermediate decision from the Court
of Appeals will be required and, of course, there is no certainty that this
Court will ever hear an appeal from that decision. And in the “certified
questions” case, the Court provides for a 49-day briefing schedule, with
oral arguments to be held 65 days from now, again, of course, with no
certainty that this Court will ever actually answer the certified questions,
and, if we do choose to do so, such a decision will likely be issued sometime
in October, November, or December, perhaps.
I have no greater insight than do my colleagues, or than does the
public generally, as to the future course and duration of the present
emergency. But I do know this: the underlying issues in these cases
pertain to an “emergency” of the most compelling and undisputed
character, and ensuring a timely judicial response to the issues posed is
what should determine the extent of this Court’s expedition. While there
may be little we can do concerning the public health consequences of the
present crisis, there is a great deal we can do in assessing the legal and
constitutional propriety of our state’s response to the emergency.
Through which institutions and by which procedures and by an under-
standing of which laws should Michigan’s response be formulated under
a Constitution in which even emergencies are subject to the rule of law?
Both houses of our Legislature in their representation of the “we the
people” believe that the Governor has exceeded her lawful authority in
certain curtailments of the rights of the people, and the Governor in her
representation of “we the people” believes that she has exercised her
executive powers in a manner faithful to the law and Constitution. And
although I have not counted heads, just as the two great institutions of
our system of self-government have divergent positions as to the state’s
emergency response, so too do millions of citizens, a good number of whom
believe they have suffered specific personal harm and injury as a result of
this response. This Court, as the third great institution of our constitu-
tional system, has now been requested by the Legislature in a case aptly
named House of Representatives & Senate v Governor to resolve the
present dispute—a resolution presumably to be grounded upon “neither
Force nor Will, but merely judgment,” Federalist No. 78, as this is derived
from the “judicial power” of this state. Both the Legislature and the
Governor previously sought from this Court, but did not receive, expe-
dited treatment through a bypass of the Court of Appeals.
But these cases not only pose a separation-of-powers dispute of
immense consequence, but the certified questions posed by the federal
court implicate a significant issue of federalism as well. The certified
 ORDERS IN CASES 1165
questions in this case pertain to medical procedures in Michigan delayed
by emergency executive order; in another recent federal court case, the
issues pertained to gyms and fitness facilities closed by emergency
executive order; and similar lawsuits have been filed in still other
federal cases. It is a highly concerning matter that lawsuits of this
nature, each implicating the respective authorities of the legislative and
executive branches of this state, would increasingly be filed in federal
court. And yet, when the federal district court in the present case
demonstrates genuine federal-state comity in seeking out the perspec-
tives of this Court on the requirements of Michigan law—while
interrupting its own litigation in the process—the unhurried nature of
our response is disconcerting.
Rather than engaging in further “expediting,” I would resolve the
present cases and I would do so in a manner affording timely guidance
concerning our state’s legal and constitutional response to the
COVID-19 emergency. To put it differently, rather than addressing the
rights of one Michigan barber in one well-publicized case over the course
of the past four months, I would address more encompassingly, and more
consistently, the rights of all Michigan citizens by answering the
common inquiry in the present cases: where do the respective authori-
ties of the Legislature and the Governor begin and end during a time of
emergency? In my view, there is nothing that constitutes a higher
priority on this Court’s agenda than clearly responding to this inquiry
through a considered and thoughtful assessment of the requirements of
our law and Constitution.
I remarked in my dissenting statement a month ago, when this Court
initially rejected bypass of the Court of Appeals, that “the consequence
of our decision today will be to ensure that this Court never issues a
meaningful decision concerning the nature and required procedures of
the emergency authority of this state. . . . By today’s action, it is unlikely
that this Court will ever decisively resolve the present dispute and thus
that whatever errors or excesses may have been made in the course of
the present emergency will never be pronounced or remedied but left
only to be repeated on the occasion of what inevitably will arise some
day as our next emergency.” I see nothing in today’s orders to cause me
to alter this perspective. The responsibility of this Court is not to
“expedite,” but it is to sufficiently expedite, to treat the present disputes
with the requisite sense of urgency, so that the issues raised are resolved
in a manner that has a practical impact on the rule of law in our state
during the pendency of the ongoing crisis. Regrettably, that is not what
is being achieved by today’s orders.
Accordingly, I dissent from each order because each, in my judgment,
fails to expedite this Court’s consideration to a sufficient extent. In In re
Certified Questions, I would answer both questions and do so on a
considerably more expedited basis. And in House of Representatives &
Senate v Governor, I would grant the Legislature’s motion for reconsid-
eration and order the case to be heard in conjunction with In re Certified
Questions, thereby also deciding this case on a considerably more
expedited basis.
1166 505 MICHIGAN REPORTS
RESPONSE TO CONCURRENCE OF JUSTICE CAVANAGH

Justice CAVANAGH writes in her concurring statement that “[u]nlike

Justice MARKMAN, who seemingly views the Court of Appeals as a
roadblock to this Court’s consideration of cases, I find immense value in
the meaningful analysis and perspective offered by our intermediate
appellate court.” Having sat on the Court of Appeals for four years, I too
have enormous regard for the institution and for its individual judges.
More to the point, however, having not sought to bypass the Court of
Appeals in approximately 99.99% of the cases within our state’s appel-
late system, I believe my support of a bypass in this case is less
indicative of the view that the Court of Appeals constitutes a “roadblock”
than it is of the view that this case pertains to an emergency and is
singular in terms of its potential impact in resolving competing legal
and constitutional claims of our Legislature and Governor, as well as in
its implications for the public health and economic welfare of our state
and its people. For these reasons, this case warrants exceptional
treatment and meaningful expedition.

Reconsideration Denied June 30, 2020:

HOUSE OF REPRESENTATIVES V GOVERNOR, No. 161377; Court of Appeals

No. 353655. On order of the Court, the motion for immediate consider-
ation is granted. The motion for reconsideration of this Court’s June 4,
2020 order is considered, and it is denied, because we are not persuaded
that reconsideration of our previous order is warranted. MCR 7.311(G).
However, we DIRECT the Court of Appeals to issue a decision in House of
Representatives and Senate v Governor (Court of Appeals Docket No.
353655) no later than Friday, August 21, 2020. Any appeal from that
decision must be filed in this Court by 5:00 p.m. on Friday, August 28,
2020.
ZAHRA, J. (concurring). The United States District Court for the
Western District of Michigan has asked this Court to answer two certified
questions concerning the Governor’s “authority . . . to issue or renew any
executive orders related to the COVID-19 pandemic” and whether the
emergency powers of the governor act, MCL 10.31 et seq., or the Emer-
gency Management Act, MCL 30.401 et seq., or both, violate “the Sepa-
ration of Powers and/or the Non-Delegation Clauses of the Michigan
Constitution.” In light of the action taken by the federal court, the
Michigan Legislature filed a motion for reconsideration of this Court’s
denial of the application to bypass the Court of Appeals in House of
Representatives v Governor, Mich ; 943 NW2d 365 (2020).1
The order denying the application to bypass was decided by the
narrowest of margins by this seven-member Court, with vigorous

1
The issues presented in House of Representatives are for all intents
and purposes identical to the issues presented in In re Certified
Questions.
 ORDERS IN CASES 1167
dissents filed by Justice MARKMAN, Justice VIVIANO, and myself. It
suffices to say that the dissenting justices concluded that in this
unprecedented time amid a global pandemic, it is the duty of this Court
to expeditiously decide the extent to which the Governor can exercise
certain statutory powers, as well as integral constitutional questions
relating to whether the Governor’s thus-far largely unreviewed asser-
tion of these powers violates our Constitution’s core commitment to the
separation of powers.
I concur in the order establishing an expedited briefing schedule and
setting oral arguments for September 2, 2020, in response to the federal
district court’s request that this Court answer its certified questions.2 I
also concur in the Court’s denial of the motion for reconsideration of this
Court’s denial of the application to bypass the Court of Appeals, while
directing that court to issue its decision by August 21st. But my
concurrence in the Court’s actions of today should in no way be taken as
a retreat from my dissenting statement to the order denying the
application for bypass. I believed then and continue to believe today that
“[b]ecause each resident’s personal liberty is at stake, it is emphatically
our duty to decide [these weighty constitutional issues].” Id. at ; 943
NW2d at 371 (ZAHRA, J., dissenting). I also continue to share the
concerns expressed by Justice MARKMAN and Justice VIVIANO in their
dissenting statements to the order denying the application for bypass.
As Justice VIVIANO expressed, the issues at stake “and how we decide
them[] will have a direct impact on the constitutional liberties of every
person who lives or owns property in, or simply visits, our state while
the [Governor’s] restrictions are in place.” Id. at ; 943 NW2d at 378
(VIVIANO, J., dissenting).
Yet, I decline to join Justice MARKMAN’s dissent to the instant order.
I do not take issue with the way Justice MARKMAN has framed the
urgency or importance of the matters before us. If writing on a blank
slate, I most assuredly would hear and decide both In re Certified
Questions and House of Representatives more expeditiously than
provided in the instant order and would do so without review by the
Court of Appeals. But this matter is not presented to us on a blank
slate.
Notwithstanding the vigorous dissents of three justices from the
denial of the application for bypass, a majority of this Court concluded
that further review by this Court should not occur without the benefit of
review and an opinion from the Court of Appeals. I also took specific
exception to this Court’s failure to order the Court of Appeals to hear
and decide the issues presented in House of Representatives on an

2
MCR 7.308(A)(3) provides that should the Court decide to answer
certified questions, briefs are to be filed following the briefing schedule
for calendar cases (which would take 112 days). The instant order has
reduced that period by more than half, allowing just 49 days for the
filing of all briefs. The notice setting oral arguments is also expedited,
with arguments being conducted just days after the briefs are submitted.
1168 505 MICHIGAN REPORTS
expedited basis and by a date certain.3 Notwithstanding the lack of
direction from this Court, the Court of Appeals decided to expedite these
proceedings. And now with the certified questions presented to us by the
federal court, the order issued by this Court today requires the Court of
Appeals to release its opinion no later than August 21, 2020, leaving
time for the Governor, the Legislature or both to file applications for
leave to appeal in this Court before we hear arguments in the certified-
questions case on September 2, 2020. I believe the instant briefing and
argument schedule is as expeditious as possible under the circum-
stances presented. Without doubt, the people of this state are far better
served by the majority’s instant order than by the Court’s previous order
denying the application for bypass.
Finally, while I do not join Justice MARKMAN’s dissenting statement,
I share his concern that there is “no certainty that this Court will ever
actually answer the certified questions, and, if we do choose to do so,
such a decision will likely be issued sometime in October, November, or
December, perhaps.” Admittedly, it remains entirely possible that after
briefing and argument a majority of the Court will decline to answer the
certified questions or will resolve them in an opinion of the Court
delivered many months later. But I am only one of seven justices on the
Court and can only endeavor to impress upon my colleagues my views on
the law and how it should be applied to the matters that come before this
Court. I accept my responsibility as an elected member of the Supreme
Court and pledge to the people of Michigan that I have and will continue
to endeavor to resolve these important questions as expeditiously as the
Court and present circumstances allow.
VIVIANO, J., joins the statement of ZAHRA, J.
CAVANAGH, J. (concurring). I agree with Justice MARKMAN that “the
underlying issues in these cases pertain to an ‘emergency’ of the most
compelling and undisputed character” and that “ensuring a timely
judicial response to the issues posed” is critically important. It is equally
as critical in my opinion, however, that the judicial response to this
emergency be thoughtfully and thoroughly considered. I also agree with
Justice MARKMAN that “responding to this inquiry through a considered
and thoughtful assessment of the requirements of our law and Consti-
tution” is a high priority. It is such a high priority in my opinion that this
Court should and has taken great pains to ensure that we have the
benefit of full briefing from the parties in In re Certified Questions and
the Court of Appeals’ considered decision in House of Representatives v
Governor. Those benefits are particularly valuable here because these
cases will require resolution of important constitutional questions of
first impression—perhaps the most imposing exercise we must under-
take as the state’s highest court.

3
House of Representatives, ___ Mich at ___; 943 NW2d at 373 (ZAHRA,
J., dissenting) (“And yet, beyond declining to grant the Legislature’s
application, the Court’s majority also fails to order the Court of Appeals
to hear and resolve these issues on an expedited basis. I make no
attempt to explicate this failure.”).
 ORDERS IN CASES 1169
I disagree with Justice MARKMAN that we have not sufficiently
expedited the process in these cases. Any casual observer of the
appellate process in Michigan would recognize that these cases are, in
fact, receiving significantly expedited review. For example, it typically
takes on average between 13 and 14 months for the Court of Appeals to
dispose of a case by opinion.1 In contrast, the timeline from the date that
the House of Representatives claim of appeal was filed in the Court of
Appeals (May 28, 2020) until the day that a decision will be issued by
the panel (August 21, 2020) is just over 12 weeks. Unlike Justice
MARKMAN, who seemingly views the Court of Appeals as a roadblock to
this Court’s consideration of cases, I find immense value in the mean-
ingful analysis and perspective offered by our intermediate appellate
court. To expedite the House of Representatives appeal any further
would be to risk sacrificing the substantive contribution of the Court of
Appeals. Moreover, a typical briefing schedule applied to certified
questions, see MCR 7.308(A)(3), takes 84 days with oral argument, if
granted, ordered sometime after. In regard to the instant Certified
Questions case, today’s order cuts the briefing schedule almost in half to
49 days and schedules oral argument only two weeks after that. Put
simply, these cases are receiving substantially expedited consideration
while still allowing the parties to fully present argument on the complex
issues presented.
I also disagree with Justice MARKMAN’s statement that this Court
resolved the constitutional rights of “one Michigan barber” but is
refusing to resolve the constitutional rights of other Michigan citizens
through its orders in these cases. This is simply not true. In Dep’t of
Health & Human Servs v Manke, 505 Mich 1110; 943 NW2d 397
(2020), this Court unanimously remanded “the barber’s” claims to the
Court of Appeals for full consideration by that court. For the reasons
already stated, our orders today ensure that every citizen will be given
the very same consideration.
Finally, although Justice MARKMAN forecasts that, as a consequence of
this Court’s orders ensuring that these cases receive complete and
adequate consideration, this Court may never “issue[] a meaningful
decision” and is unlikely to “ever decisively resolve the present dispute,”
I, again, must disagree. As Justice CLEMENT aptly noted in her earlier
concurring statement attached to this Court’s order denying bypass in
House of Representatives v Governor, Mich , ; 943 NW2d
365, 369 (2020), “[u]ntil a vaccine for COVID-19 is invented, our society
will be living with the risk of the spread of this disease and the argued
necessity of emergency measures to mitigate that spread.” Since the
time Justice CLEMENT made this observation, there have unfortunately
been no advances in science or public health to eradicate this virus and,
therefore, I continue to join her in believing that there is “little prospect
of these disputes being rendered moot . . . .” Id.

1
Michigan Court of Appeals, 2018 Annual Report, p 6, available at
<https://courts.michigan.gov/Courts/COA/aboutthecourt/Documents/Annual-
Report2018.pdf> (accessed June 30, 2020) [https://perma.cc/44RA-6642].
1170 505 MICHIGAN REPORTS
In sum, I believe that the orders issued today in these related cases
best balance the need for a timely judicial response with the equally
important need for a thoughtful and thorough resolution. The judicial
response of this Court should and will be guided by the deliberate
consideration of our intermediate appellate court in House of Represen-
tatives and informed by full briefing by the parties in In re Certified
Questions. I am confident that each and every one of my colleagues
accepts their responsibility as elected members of this Court to honestly
endeavor to resolve these important questions as expeditiously, thor-
oughly, and thoughtfully as possible.
MARKMAN, J. (dissenting). On June 18th, the United States District
Court for the Western District of Michigan certified two questions to this
Court, requesting our opinion concerning (a) whether the Governor
possesses “the authority after April 30, 2020, to issue or renew any
executive orders related to the COVID-19 pandemic,” and (b) whether
the emergency powers of the governor act, MCL 10.31 et seq., or the
Emergency Management Act, MCL 30.401 et seq., or both, violate “the
Separation of Powers and/or the Non-Delegation Clauses of the Michi-
gan Constitution.” In that case, the Court now schedules oral argument
for September 2nd. And in a separate but related case, the Court denies
the Legislature’s motion for reconsideration of our earlier decision to
deny its application to bypass the Court of Appeals, while directing that
court to issue its decision by August 21st.
This Court possesses the authority to expedite its own deliberations
or not; to expedite the deliberations of the Court of Appeals or not; and
to bypass entirely the deliberations of the Court of Appeals or not.
Therefore, where, as here, matters of expedition come before the Court,
the determinative question is less one of legal authority than of
judgment and purpose. In other words, what would be the purpose in a
given case for expediting its resolution or not, for bypassing the Court of
Appeals or not? What would or would not be accomplished by such
expedition? Here, the Court has chosen nominally to expedite the
deliberations of the Court of Appeals in the Legislature’s case and the
deliberations of this Court in the “certified questions” case, while
reaffirming its recent decision not to bypass the Court of Appeals and
thereby to expedite the work of this Court in the Legislature’s case. All
to what purpose?
One obvious “purpose” that might inform our consideration of
matters of expedition would be this: what extent of reasonable expedi-
tion will most likely ensure that our ultimate decision will be rendered
in a sufficiently timely manner to enable that decision to govern the
present dispute, the dispute arising from the present emergency, the
dispute prompting the present lawsuit? That, of course, is the entire
point of both the lawsuit and the certified questions before this Court;
these cases do not pose academic exercises and they are not addressed
to the next pandemic, but their common purpose is to more clearly
define the legal and constitutional relationship between the Legislature
and the Governor in the context of the present emergency. And in this
regard, the Court’s “expedition” of these two cases today seems to me
entirely unfocused. While it is indeed an “expedition” of sorts, it is an
 ORDERS IN CASES 1171
“expedition” unsuited to what must be its principal purpose, to facilitate
the adoption of rules that are faithful to the law and the Constitution
and that will govern the interactions between the Legislature and the
Governor during the COVID-19 emergency of the year 2020.
It has now been 39 days since expedited treatment was first sought
by the Legislature in its lawsuit. And as a result of today’s orders, there
will be 52 additional days before even an intermediate decision from the
Court of Appeals will be required and, of course, there is no certainty
that this Court will ever hear an appeal from that decision. And in the
“certified questions” case, the Court provides for a 49-day briefing
schedule, with oral arguments to be held 65 days from now, again, of
course, with no certainty that this Court will ever actually answer the
certified questions, and, if we do choose to do so, such a decision will
likely be issued sometime in October, November, or December, perhaps.
I have no greater insight than do my colleagues, or than does the
public generally, as to the future course and duration of the present
emergency. But I do know this: the underlying issues in these cases
pertain to an “emergency” of the most compelling and undisputed
character, and ensuring a timely judicial response to the issues posed is
what should determine the extent of this Court’s expedition. While there
may be little we can do concerning the public health consequences of the
present crisis, there is a great deal we can do in assessing the legal and
constitutional propriety of our state’s response to the emergency.
Through which institutions and by which procedures and by an under-
standing of which laws should Michigan’s response be formulated under
a Constitution in which even emergencies are subject to the rule of law?
Both houses of our Legislature in their representation of the “we the
people” believe that the Governor has exceeded her lawful authority in
certain curtailments of the rights of the people, and the Governor in her
representation of “we the people” believes that she has exercised her
executive powers in a manner faithful to the law and Constitution. And
although I have not counted heads, just as the two great institutions of
our system of self-government have divergent positions as to the state’s
emergency response, so too do millions of citizens, a good number of whom
believe they have suffered specific personal harm and injury as a result of
this response. This Court, as the third great institution of our constitu-
tional system, has now been requested by the Legislature in a case aptly
named House of Representatives & Senate v Governor to resolve the
present dispute—a resolution presumably to be grounded upon “neither
Force nor Will, but merely judgment,” Federalist No. 78, as this is derived
from the “judicial power” of this state. Both the Legislature and the
Governor previously sought from this Court, but did not receive, expe-
dited treatment through a bypass of the Court of Appeals.
But these cases not only pose a separation-of-powers dispute of
immense consequence, but the certified questions posed by the federal
court implicate a significant issue of federalism as well. The certified
questions in this case pertain to medical procedures in Michigan delayed
by emergency executive order; in another recent federal court case, the
issues pertained to gyms and fitness facilities closed by emergency
executive order; and similar lawsuits have been filed in still other
1172 505 MICHIGAN REPORTS
federal cases. It is a highly concerning matter that lawsuits of this
nature, each implicating the respective authorities of the legislative and
executive branches of this state, would increasingly be filed in federal
court. And yet, when the federal district court in the present case
demonstrates genuine federal-state comity in seeking out the perspec-
tives of this Court on the requirements of Michigan law—while
interrupting its own litigation in the process—the unhurried nature of
our response is disconcerting.
Rather than engaging in further “expediting,” I would resolve the
present cases and I would do so in a manner affording timely guidance
concerning our state’s legal and constitutional response to the COVID-19
emergency. To put it differently, rather than addressing the rights of one
Michigan barber in one well-publicized case over the course of the past
four months, I would address more encompassingly, and more consis-
tently, the rights of all Michigan citizens by answering the common
inquiry in the present cases: where do the respective authorities of the
Legislature and the Governor begin and end during a time of emergency?
In my view, there is nothing that constitutes a higher priority on this
Court’s agenda than clearly responding to this inquiry through a consid-
ered and thoughtful assessment of the requirements of our law and
Constitution.
I remarked in my dissenting statement a month ago, when this Court
initially rejected bypass of the Court of Appeals, that “the consequence
of our decision today will be to ensure that this Court never issues a
meaningful decision concerning the nature and required procedures of
the emergency authority of this state. . . . By today’s action, it is unlikely
that this Court will ever decisively resolve the present dispute and thus
that whatever errors or excesses may have been made in the course of
the present emergency will never be pronounced or remedied but left
only to be repeated on the occasion of what inevitably will arise some
day as our next emergency.” I see nothing in today’s orders to cause me
to alter this perspective. The responsibility of this Court is not to
“expedite,” but it is to sufficiently expedite, to treat the present disputes
with the requisite sense of urgency, so that the issues raised are resolved
in a manner that has a practical impact on the rule of law in our state
during the pendency of the ongoing crisis. Regrettably, that is not what
is being achieved by today’s orders.
Accordingly, I dissent from each order because each, in my judgment,
fails to expedite this Court’s consideration to a sufficient extent. In In re
Certified Questions, I would answer both questions and do so on a
considerably more expedited basis. And in House of Representatives &
Senate v Governor, I would grant the Legislature’s motion for reconsid-
eration and order the case to be heard in conjunction with In re Certified
Questions, thereby also deciding this case on a considerably more expe-
dited basis.

RESPONSE TO CONCURRENCE OF JUSTICE CAVANAGH

Justice CAVANAGH writes in her concurring statement that “[u]nlike

Justice MARKMAN, who seemingly views the Court of Appeals as a
 ORDERS IN CASES 1173
roadblock to this Court’s consideration of cases, I find immense value in
the meaningful analysis and perspective offered by our intermediate
appellate court.” Having sat on the Court of Appeals for four years, I too
have enormous regard for the institution and for its individual judges.
More to the point, however, having not sought to bypass the Court of
Appeals in approximately 99.99% of the cases within our state’s appel-
late system, I believe my support of a bypass in this case is less
indicative of the view that the Court of Appeals constitutes a “roadblock”
than it is of the view that this case pertains to an emergency and is
singular in terms of its potential impact in resolving competing legal
and constitutional claims of our Legislature and Governor, as well as in
its implications for the public health and economic welfare of our state
and its people. For these reasons, this case warrants exceptional
treatment and meaningful expedition.
SPECIAL ORDERS
 SPECIAL ORDERS 1201

SPECIAL ORDERS
In this section are orders of the Supreme Court
(other than orders entered in cases before the Court)
of general interest to the bench and bar of the state.

Order Entered December 18, 2019:

PROPOSED AMENDMENTS OF MCR 1.109, 2.002, 2.302, 2.306, 2.315, 2.603,

3.101, 3.222, 3.618, 4.201, and 8.119.
On order of the Court, this is to advise that the Court is considering
amendments of Rules 1.109, 2.002, 2.302, 2.306, 2.315, 2.603, 3.101,
3.222, 3.618, 4.201, and 8.119 of the Michigan Court Rules. Before
determining whether the proposal should be adopted, changed before
adoption, or rejected, this notice is given to afford interested persons the
opportunity to comment on the form or the merits of the proposal or to
suggest alternatives. The Court welcomes the views of all. This matter
also will be considered at a public hearing. The notices and agendas for
public hearings are posted at [http://courts.mi.gov/courts/michigan
supremecourt/rules/pages/default.aspx].
Publication of this proposal does not mean that the Court will issue
an order on the subject, nor does it imply probable adoption of the
proposal in its present form.

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 1.109. COURT RECORDS DEFINED; DOCUMENT DEFINED; FILING STAN-

DARDS; SIGNATURES; ELECTRONIC FILING AND SERVICE; ACCESS.
(A)-(C) [Unchanged.]
(D) Filing Standards.
(1) Form and Captions of Documents.
(a) All documents prepared for filing in the courts of this state and
all documents preparedissued by the courts for placement in a case file
must be legible and in the English language, comply with standards
established by the State Court Administrative Office, and be on good
quality 81/2 by 11 inch paper or transmitted through an approved
electronic means and maintained as a digital image. The font size must
be 12 or 13 point for body text and no less than 10 point for footnotes,
except with regard to forms approved by the State Court Administrative
Office. Transcripts filed with the court must contain only a single
transcript page per document page, not multiple pages combined on a
single document page.
(b)-(g) [Unchanged.]
(2)-(8) [Unchanged.]
(E) Signatures.
1202 505 MICHIGAN REPORTS
(1)-(3) [Unchanged.]
(4) An electronic signature is acceptable in accordance with this
subrule.
(a) [Unchanged.]
(b) If a law or court rule requires a signature to be notarized or made
under oath, the requirement is satisfied if the electronic signature of the
person authorized to perform those acts, together with all other infor-
mation required to be included by other applicable law or court rule, is
attached to or logically associated with the signature pursuant to MCL
55.286b.
(bc) [Relettered but otherwise unchanged.]
(5)-(7) [Unchanged.]
(F) [Unchanged.]
(G) Electronic Filing and Service.
(1) [Unchanged.]
(2) Electronic-Filing and Electronic-Service Standards. Courts shall
implement electronic filing and electronic service capabilities in accor-
dance with this rule and shall comply with the standards established by
the State Court Administrative Office. Confidential and nonpublic
information or documents and sealed documentsmust be that are
electronically filed or electronically served must be filed or served in
compliance with these standards to ensure secure transmission of the
information.
(3) Scope and Applicability.
(a)-(d) [Unchanged.]
(e) If a party or attorney in a case is registered as an authorized user
in the electronic-filing system, Aa court maymust electronically ser-
vesend to that authorized user any notices, orders, opinions, andor other
documents issued by the court in that case by means of either the
(i) electronic-filing system, or
(ii) the court’s on-premise electronic document management system,
without the need for the e-mail agreement required under MCR
2.107(C)(4).
(f) For the required case types, attorneys must electronically file
documents in courts where electronic filing has been implemented,
unless an attorney filing on behalf of a party is exempted from electronic
filing under subrule (j) because of a disability. All other filers are
required to electronically file documents only in courts that have been
granted approval to mandate electronic filing by the State Court
Administrative Office under AO 2019-XX2.
(g) [Unchanged.]
(h) Upon request, the following persons are exempt from electronic
filing without the need to demonstrate good cause:
(i) a person who has a disability as defined under the Americans
with Disabilities Act that prevents or limits the person’s ability to use
the electronic filing system;
(ii)-(iii) [Unchanged.]
 SPECIAL ORDERS 1203
(i) A request for an exemption under subrule (h)(i) must be re-
quested as a reasonable accommodation in accordance with subrule (j).
A request for an exemption under subrules (h)(ii) or (iii) must be filed
with the court in paper where the individual’s case will be or has been
filed as follows:. If the individual filed paper documents at the same time
as the request for exemption, the clerk shall process the documents for
filing. If the documents meet the filing requirements of subrule (D), they
will be considered filed on the day they were submitted.
(i) The request for an exemption must be on a form approved by the
State Court Administrative Office, must specify the reasons that pre-
vent the individual from filing electronically, and be verified under MCR
1.109(D)(3). The individual may file supporting documents along with
the request for the court’s consideration. There is no fee for the request.
(ii) The request must specify the reasons that prevent the individual
from filing electronically. The individual may file supporting documents
along with the request for the court’s consideration.
(ii) A request made under subrule (h)(ii) or (iii) shall be approved by
the clerk of the court on a form approved by the State Court Adminis-
trative Office. For all other requests,
(iii) Aa judge must review the request and any supporting documen-
tation and issue an order granting or denying the request within two
business days of the date the request was filed.
(j) A person with a disability as defined under the Americans with
Disabilities Act that prevents or substantially limits the person’s ability
to use the electronic-filing system may request and shall be granted an
exemption from electronic filing as a reasonable accommodation as
follows:
(i) A request for exemption under this subrule shall be filed as a
request for reasonable accommodation in the court in which the indi-
vidual’s case has or will be filed. When submitted in writing, the request
shall be made on the SCAO-approved form “Request for Reasonable
Accommodations and Response.”
(ii) Whether or not the court determines any other reasonable
accommodations are appropriate, the court shall prepare an order
exempting the person from electronic filing.
(k) If the individual filed paper documents at the same time as the
request for exemption under either subrule (i) or (j), the clerk shall
process the documents for filing. If the documents meet the filing
requirements of subrule (D), they will be considered filed on the day they
were submitted.
(l)(iv) The clerk of the court must hand deliver or promptly mail the
clerk approval granted or order entered under subrule (i) or (j) to the
individual. The clerk must place the request, any supporting documen-
tation, and the clerk approval or order in the case file. If there is no case
file, the documents must be maintained in a group file.
(m)(v) An exemption granted under this rule is valid only for the
court in which it was filed and for the life of the case unless the
individual exempted from filing electronically registers with the
electronic-filing system. In that event, the individual waives the exemp-
tion and becomes subject to the rules of electronic filing and the
1204 505 MICHIGAN REPORTS
requirements of the electronic-filing system. An individual who waives
an exemption under this rule may file another request for exemption.
(4)-(5) [Unchanged.]
(6) Electronic-Service Process.
(a) General Provisions.
(i) [Unchanged.]
(ii) Service of process of all other documents electronically filed shall
be accomplished electronically among authorized users through the
electronic-filing system. unless one or more parties have If a party has
been exempted from electronic filing, or a party has not filed a response
or answer or has not registered with the electronic-filing system and
that party’s e-mail address is unknown. In those circumstances, service
shall be made on that party by any other method required by Michigan
Court Rules.
(iii)-(v) [Unchanged.]
(b)-(c) [Unchanged.]
(7) Transmission Failures.
(a)-(c) [Unchanged.]
(d) In the event the electronic-filing system fails to transmit a
document selected for service, if deemed necessary to ensure due process
rights are protected, the State Court Administrator shall provide notice
to the affected persons in either of the following ways:
(i) file, as a nonparty, a notice of defective service in each affected
case and, as deemed appropriate, serve the notice, or
(ii) send notice of a system-wide transmission failure to each af-
fected system user.
(e) If notice is provided under subrule (d), the clerk of the court
where the affected case is filed must enter the event in the case history
in accordance with MCR 8.119(D)(1)(a).
(f) A fee shall not be assessed on a motion filed claiming that rights
in the case were adversely affected by transmission failure of a docu-
ment selected for service.
RULE 2.002. WAIVER OF FEES FOR INDIGENT PERSONS.
(A) Applicability and Scope.
(1)-(3) [Unchanged.]
(4) If fees are waived under this rule before judgment, the waiver
continues through the date of judgment unless ordered otherwise under
subrule (J). If fees are waived under this rule postjudgment, the waiver
continues through the date of adjudication of the postjudgment proceed-
ings. In probate proceedings, “postjudment” means any proceeding in
the case after the original petition is adjudicated. If jurisdiction of the
case is transferred to another court, the waiver continues in the
receiving court according to this rule unless ordered otherwise by the
receiving court under subrule (J). If an interlocutory appeal is filed in
another court, the waiver continues in the appellate court.
(5) [Unchanged.]
(B)-(K) [Unchanged.]
 SPECIAL ORDERS 1205
RULE 2.302. DUTY TO DISCLOSE; GENERAL RULES GOVERNING DISCOVERY.
(A)-(G) [Unchanged.]
(H) Filing and Service of Disclosure and Discovery Materials.
(1) Unless required by a particular rule, disclosures, requests,
responses, depositions, and other discovery materials may not be filed
with the court except as follows:
(a) If the materials are to be used in connection with a motion, they
must either be filed separately or be attached to the motion, response, or
an accompanying affidavit;
(b) If the materials are to be used at trial, they shall not be filed with
the court, but must be submitted to the judge and made an exhibit under
MCR 2.518 or MCR 3.930;
(c) [Unchanged.]
(2)-(4) [Unchanged.]
RULE 2.306. DEPOSITIONS ON ORAL EXAMINATION OF A PARTY.
(A)-(E) [Unchanged.]
(F) Certification and Transcription; Filing; Copies.
(1)-(2) [Unchanged.]
(3) Except as provided in subrule (C)(3) or in MCR 2.315(E), a
deposition may not be filed with the court unless it has first been
transcribed. If a party requests that the transcript be filed, the person
conducting the examination or the stenographer shall promptly file the
certified transcript with the court in which the action is pending in
accordance with MCR 2.105(A), after transcription and certification:
and shall give prompt notice of its filing to all other parties, unless the
parties agree otherwise by stipulation in writing or on the record.
(a) If the transcript is personally delivered to the court, securely seal
the transcriptit must be securely sealed in an envelope endorsed with
the title and file number of the action and marked “Deposition of [name
of witness],’.”and promptly file itwith the court in which the action is
pending as prescribed in accordance with MCR 2.105(A) or send it by
registered or certified mail to the clerk of that court for filing;
(b) give prompt notice of its filing to all other parties, unless the
parties agree otherwise by stipulation in writing or on the record.
(G) [Unchanged.]
RULE 2.315. VIDEO DEPOSITIONS.
(A)-(D) [Unchanged.]
(E) Filing; Notice of Filing. If a party requests that the deposition be
filed, the person who made the recording shall
(1)-(3) [Unchanged.] A video deposition cannot be electronically filed
with the court.
(F)-(I) [Unchanged.]
RULE 2.603. DEFAULT AND DEFAULT JUDGMENT.
(A) Entry of Default; Notice; Effect.
1206 505 MICHIGAN REPORTS
(1) If a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend as provided by these
rules, the clerk must enter the default of that party if that fact is:
(a) known to the clerk of the court, or
(b) and that fact is verified in the manner prescribed by MCR
1.109(D)(3) and filed with the court in thea request for default, the clerk
must enter the default of that party.
(2)-(3) [Unchanged.]
(B)-(E) [Unchanged.]
RULE 3.101. GARNISHMENT AFTER JUDGMENT.
(A)-(B) [Unchanged.]
(C) Forms. The state court administratorState Court Administrative
Office shall publish approved forms for use in garnishment proceedings.
The verified request and writ forms approved by the State Court
Administrative Office must be used. Separate forms shall be used for
periodic and nonperiodic garnishments. The verified statement, writ,
andThe disclosure filed in garnishment proceedings must be substan-
tially in the form approved by the state court administratorState Court
Administrative Office.
(D) Request for and Issuance of Writ. The clerk of the court that
entered the judgment shall review the request. The clerk shall issue a
writ of garnishment if the writ appears to be correct, complies with these
rules and the Michigan statutes, and if the plaintiff, or someone on the
plaintiff’s behalf, makes and files a statement verified in the manner
provided in MCR 1.109(D)(3) stating:
(1)-(3) [Unchanged.]
(4) whether the garnishee is to make all payments directly to the
plaintiff or the plaintiff’s attorney or to send the funds to the court.
(E) Writ of Garnishment.
(1) The writ of garnishment must have attached or must include a
copy of theand the verified statement requesting for issuance of the writ
must be included on the same form., and The writ must include
information that will permit the garnishee to identify the defendant,
such as the defendant’s address, social security number, employee
identification number, federal tax identification number, employer num-
ber, or account number, if known.
(2) [Unchanged.]
(3) The writ shall direct the garnishee to:
(a)-(d) [Unchanged.]
(e) in the discretion of the court and in accordance with subrule (J),
order the garnishee either to
(i) make all payments directly to the plaintiff or the plaintiff’s
attorney or
(ii) send the funds to the court, in the manneras specified by the
plaintiff in the writrequest under subrule (D)(4).
(4) [Unchanged.]
 SPECIAL ORDERS 1207
(5) The writ shall inform the defendant that unless the defendant
files objections within 14 days after the service of the writ on the
defendant or as otherwise provided under MCL 600.4012,
(a) without further notice the property or debt held pursuant
tounder the garnishment may be applied to the satisfaction of the
plaintiff’s judgment, and
(b) periodic payments due to the defendant may be withheld and
paid according to subrule (3)(e) until the judgment is satisfied and in the
discretion of the court paid directly to the plaintiff.
(6) [Unchanged.]
(F)-(I) [Unchanged.]
(J) Payment.
(1) After 28 days from the date of the service of the writ on the
garnishee, the garnishee shall transmit all withheld funds to the
plaintiff, plaintiff’s attorney, or the court as directed by the court
pursuant to subrule (E)(3)(e) unless notified that objections have been
filed.
(2)-(7) [Unchanged.]
(K)-(T) [Unchanged.]
RULE 3.222. UNIFORM COLLABORATIVE ACT PROCESS AND AGREEMENTS.
(A)-(B) [Unchanged.]
(C) Establishing Jurisdiction and Starting the Statutory Waiting
Period. At any time after a collaborative law participation agreement is
signed, if the parties are not already under the court’s jurisdiction, the
parties may commence an action to submit to the court’s jurisdiction.
(1) [Unchanged.]
(2) To commence an action at any time before the conclusion of the
collaborative law process, the parties shall file a petition for court
jurisdiction and declaration of intent to file a proposed final judgment or
proposed final order on a form approved by the State Court Adminis-
trative Office.
(a) The petition shall be brought “In the Matter of” the names of
Party A and Party B and shall state the type of action corresponding to
the assigned case type code inunder MCR 8.117 (listed under Case
FileManagement Standard [A][6]). The petition shall:
(i)-(v) [Unchanged.]
The petition may also contain a request to waive the six-month
statutory waiting period under MCL 552.9f.
(b)-(e) [Unchanged.]
(D)-(F) [Unchanged.]
RULE 3.618. EMANCIPATION OF MINOR.
(A)-(F) [Unchanged.]
(G) Order. To fulfill requirements of the Social Security Administra-
tion, the court must provide the minor with a copy of the order of
emancipation that includes the minor’s full social security number, if the
minor has one. The court shall not include the minor’s social security
number on the order maintained in the court’s file.
1208 505 MICHIGAN REPORTS
(1) The minor must show his or her social security card to the judge
at the hearing and the judge shall enter the number on the minor’s copy
of the order. If the minor does not bring his or her social security card to
the hearing or does not have a social security card, the minor can
present his or her social security card to the clerk of the court at a later
date, and after verifying the identity if the minor, the clerk of the court
shall enter the social security number on a copy of the order to be given
to the minor.
(2) The order must be entered on a form approved by the State Court
Administrative Office, consisting of two parts. The first part is placed in
the case file and shall not contain the minor’s social security number.
The second part shall contain the minor’s social security number and a
statement that the order is a certified copy of the order on file with the
court except that the social security number appears only on the minor’s
copy of the order. The minor’s copy of the order shall be signed by the
clerk of the court. There is no fee for the certified copy.
RULE 4.201. SUMMARY PROCEEDINGS TO RECOVER POSSESSION OF PREMISES.
(A)-(C) [Unchanged.]
(D) Service of Process. A copy of the summons and complaint and all
attachments must be served on the defendant by first-class mail.
Unless the court does the mailing and keeps a record, the plaintiff must
perfect the mail service by attaching a postal receipt to the proof of
service.Where e-Filing is implemented, the plaintiff must serve the
defendant by first-class mail and file proof of service with the court. In
addition to mailing, the defendant must be served in one of the following
ways:
(1)-(3) [Unchanged.]
(E)-(O) [Unchanged.]
RULE 8.119. COURT RECORDS AND REPORTS; DUTIES OF CLERKS.
(A)-(B) [Unchanged.]
(C) Filing of Documents and Other Materials. The clerk of the court
shall process and maintain documents filed with the court as prescribed
by Michigan Court Rules and the Michigan Trial Court Records Man-
agement Standards and all filed documents must be file stamped in
accordance with these standards. The clerk of the court may only reject
documents submitted for filing that do not comply with MCR 1.109(D)(1)
and (2), are not signed in accordance with MCR 1.109(E), or are not
accompanied by a required filing fee or a request for fee waiver, unless
already waived or suspended by court order. Documents prepared or
issued by the court for placement in the case file are not subject to
rejection by the clerk of the court and shall not be stamped filed but shall
be recorded in the case history as required in subrule (D)(1)(a) and
placed in the case file.
(D) Records Kept by the Clerk of the Court. The clerk of the court
shall maintain the following case records in accordance with the
Michigan Trial Court Records Management Standards. Documents and
other materials made nonpublic or confidential by court rule, statute, or
order of the court pursuant to subrule (I) must be designated accord-
 SPECIAL ORDERS 1209
ingly and maintained to allow only authorized access. In the event of
transfer or appeal of a case, every rule, statute, or order of the court
under subrule (I) that makes a document or other materials in that case
nonpublic or confidential applies uniformly to every court in Michigan,
irrespective of the court in which the document or other materials were
originally filed.
(1) [Unchanged.]
(a) Case History. The clerk shall create and maintain a case history
of each case, known as a register of actions, in the court’s automated
case management system. The automated case management system
shall be capable of chronologically displaying the case history for each
case and shall also be capable of searching a case by number or party
name (previously known as numerical and alphabetical indices) and
displaying the case number, date of filing, names of parties, and names
of any attorneys of record. The case history shall contain both pre- and
post-judgment information and shall, at a minimum, consist of the data
elements prescribed in the Michigan Trial Court Records Management
Standards. Each entry shall be brief, but shall show the nature of each
item filed, each order or judgment ofitem issued by the court, and the
returns showing execution. Each entryThe case history entry of each
item filed shall be dated with not only the date of filing (if relevant), but
with and the date and initials of the person recording the action, except
where the entry is recorded by the electronic filing system. In that
instance, the entry shall indicate that the electronic filing system
recorded the action. The case history entry of each order, judgment,
opinion, notice, or other item issued by the court shall be dated with the
date of entryissuance and the initials of and shall indicate the person
recording the action.
(b) [Unchanged.]
(2)-(4) [Unchanged.]
(E)-(L) [Unchanged.]
Staff comment: The proposed amendments of MCR 1.109, 2.002,
2.302, 2.306, 2.315, 2.603, 3.101, 3.222, 3.618, 4.201, and 8.119 are the
latest proposed revisions as part of the design and implementation of
the statewide electronic-filing system.
The staff comment is not an authoritative construction by the Court.
In addition, adoption of a new rule or amendment in no way reflects a
substantive determination by this Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by April 1, 2020, at
P.O. Box 30052, Lansing, MI 48909, or [email protected].
When filing a comment, please refer to ADM File No. 2002-37. Your
comments and the comments of others will be posted under the chapter
affected by this proposal at [http://courts.mi.gov/courts/michigan
supremecourt/rules/court-rules-admin-matters/pages/default.aspx].
1210 505 MICHIGAN REPORTS
Order Entered December 27, 2019:

PROPOSED AMENDMENT OF MCR 7.118.

On order of the Court, this is to advise that the Court is considering
an amendment of Rule 7.118 of the Michigan Court Rules. Before
determining whether the proposal should be adopted, changed before
adoption, or rejected, this notice is given to afford interested persons the
opportunity to comment on the form or the merits of the proposal or to
suggest alternatives. The Court welcomes the views of all. This matter
also will be considered at a public hearing. The notices and agendas for
public hearings are posted at [http://courts.mi.gov/courts/michigan
supremecourt/rules/pages/default.aspx].
Publication of this proposal does not mean that the Court will issue
an order on the subject, nor does it imply probable adoption of the
proposal in its present form.

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 7.118. APPEALS FROM THE MICHIGAN PAROLE BOARD.

(A)-(C) [Unchanged.]
(D) Application for Leave to Appeal.
(1)-(2) [Unchanged.]
(3) Manner of Filing. An application for leave must comply with MCR
7.105, must include statements of jurisdiction and venue, and must be
served on the parole board and the prisoner. If the victim seeks leave, the
prosecutor must be served. If the prosecutor seeks leave, the victim must
be served if the victim requested notification under MCL 780.771.
(a) [Unchanged.]
(b) Service on a prisoner incarcerated in a state correctional facility
must be accomplished by serving the application for leave on the warden
or administrator, along with the form approved by the State Court
Administrative Office for personal service on a prisoner. Otherwise,
service must be accomplished by certified mail, return receipt requested,
as described in MCR 2.103(C) and MCR 2.104(A)(2) or in compliance
with MCR 2.105(A)(2). In addition to the pleadings, service on the
prisoner must also include a notice in a form approved by the State
Court Administrative Office advising the prisoner that:
(i) the prisoner may respond to the application for leave to appeal
through retained counsel or in propria persona, although no response is
required, and that an indigent prisoner is entitled to appointment of
counsel, and
(ii) [Unchanged.]
(c) [Unchanged.]
(d) If a prosecutor or victim files an application for leave to appeal,
the circuit court shall appoint counsel for a prisoner who is indigent.
(4) [Unchanged.]
(E)-(J) [Unchanged.]
 SPECIAL ORDERS 1211
Staff Comment: This proposal, suggested by the Prisons and Correc-
tions Section of the State Bar of Michigan, would require counsel to be
appointed to an indigent prisoner when an application for leave to
appeal a grant of parole is filed by the prosecutor or victim. The right to
counsel also would be included on the notice to be provided the prisoner.
The staff comment is not an authoritative construction by the Court.
In addition, adoption of a new rule or amendment in no way reflects a
substantive determination by this Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by April 1, 2020, at
P.O. Box 30052, Lansing, MI 48909, or [email protected].
When filing a comment, please refer to ADM File No. 2019-13. Your
comments and the comments of others will be posted under the chapter
affected by this proposal at [http://courts.mi.gov/courts/michigan
supremecourt/rules/court-rules-admin-matters/pages/default.aspx].

Order Entered March 11, 2020:

PROPOSED ADOPTION OF A MANDATORY CONTINUING JUDICIAL EDUCATION PRO-
GRAM.
On order of the Court, the Court is considering adoption of a
mandatory continuing judicial education program for the state’s jus-
tices, judges, and quasi-judicial officers. The program is intended to
promote and sustain competence and professionalism in Michigan’s
judiciary, and ensure continued proficiency in the core competencies of
Michigan’s judicial education curriculum, including knowledge about
the current law, integrity and demeanor, communication skills, and
administrative capacity.
Before determining whether the proposal should be adopted,
changed before adoption, or rejected, this notice is given to afford
interested persons the opportunity to comment on the form or the merits
of the proposal or to suggest alternatives. The Court welcomes the views
of all. This matter also will be considered at a public hearing.
The notices and agendas for public hearings are posted at [http://
courts.mi.gov/courts/michigansupremecourt/rules/pages/default.aspx].
Publication of this proposal does not mean that the Court will issue
an order on the subject, nor does it imply probable adoption of the
proposal in its present form.
Administrative Order No. 2020-X — Mandatory Continuing Judicial
Education Program
1. Requirement.
(A) General Requirement. As of X/X/XXXX, every judicial officer
must complete a program of continuing judicial education as described
in this order.
(B) Exceptions and Exemptions. There shall be no exceptions to or
exemptions from this requirement (including waivers, extensions, or
deferments) except in limited instances only with approval of the
Judicial Education Board.
1212 505 MICHIGAN REPORTS
2. Definitions. The following words and phrases, when used in this
order, shall have the following meanings (unless the context clearly
indicates otherwise):
(A) “Accredited Provider” is an individual or organization that offers
continuing judicial education activities that are consistent with the
requirements established under this order.
(B) “Approved Course” is a learning opportunity offered by a nonac-
credited provider, but which is consistent with the requirements estab-
lished under this order.
(C) “Alternative Education Activity” is a learning opportunity that is
not otherwise specifically addressed here, but which is consistent with
the requirements established under this order.
(D) “Board” is the Judicial Education Board established by this
order.
(E) “MCJE” is the mandatory continuing judicial education to be
provided under this order.
(F) “Judicial Officer” is a Justice, appellate court judge, full-time
judge, part-time judge, retired judge assigned by SCAO as a visiting
judge, full-time quasi-judicial officer (including a district court magis-
trate or circuit court family division referee), or a part-time quasi-
judicial officer (including a district court magistrate or a circuit court
family division referee).
3. Judicial Education Board.
(A) Establishment. The Supreme Court establishes the Judicial
Education Board.
(B) Purpose. The primary purpose of the Board is to guide develop-
ment and delivery of continuing judicial education to all judicial officers.
(C) Composition. The Board shall consist of twelve members ap-
pointed by the Supreme Court as follows:
(i) 2 members selected from judges of the Court of Appeals;
(ii) 2 members selected from judges of the Circuit Court;
(iii) 2 members selected from judges of the District Court;
(iv) 2 members selected from judges of the Probate Court;
(v) 3 members selected from quasi-judicial officers; and
(vi) 1 member selected as a retired judge.
(D) Leadership. The Supreme Court shall appoint from the mem-
bers of the Board a chair and vice-chair who shall serve one-year terms,
which may be renewed. The Board may designate other officers and
form committees as it deems appropriate.
(E) Term of Board Members. The members serve three-year terms. A
member may not serve more than two full terms unless a member is
appointed to fill a mid-term vacancy. In such a situation, the member
shall serve the remainder of that term and may be reappointed to serve
up to two more full terms. Terms of the initial board members shall be
staggered to ensure reasonable continuity.
(F) Action by the Board. Seven board members shall constitute a
quorum. The Board shall act only with the concurrence of at least seven
 SPECIAL ORDERS 1213
board members. The Board may adopt rules providing for participation
of teleconference meetings or the use of other technology to enable
maximum participation.
(G) Responsibilities of the Board.
(i) Accreditation and Approval Decisions. The Board shall make
decisions regarding accreditation of providers and approval of courses
consistent with the purpose and standards set forth in this order.
(ii) Noncompliance Appeals. The Board shall hear and decide ap-
peals from judicial officers determined to be out of compliance with this
order’s requirements.
(iii) Waiver, Extension, Deferment. The Board shall hear and decide
requests from judicial officers for waiver, extension, or deferment from
the requirements in this order.
(iv) Reporting and Budget. The Board shall report at least annually
to the Supreme Court on its activities, and annually propose a budget
for the Board and submit it to the Supreme Court for approval.
(v) Incidental Responsibilities. The Board shall undertake all inci-
dental tasks attendant to the above activities, including providing
essential notices and recordkeeping activities.
(vi) Rules for Mandatory Continuing Judicial Education. The Board
shall prepare a set of rules governing continuing judicial education for
review and approval by the Supreme Court to replace this order. The
proposed rules must be submitted to the Court no later than X/X/XXXX.
(H) Compensation and Expenses. Board members shall receive no
compensation for services provided under these rules, but they shall be
reimbursed by the Board for their reasonable and necessary expenses in
attendance at meetings and in otherwise fulfilling their responsibilities.
(I) Immunity. The Board and its members, employees, and agents
are absolutely immune from suit for conduct and communications
arising out of the performance of their duties under this act. In addition,
any other person is immune from suit for statements and communica-
tions transmitted solely to the Board or its staff related to the require-
ments contained in this order.
4. Minimum Continuing Judicial Education Requirements.
(A) General Requirements. Commencing X/X/XXXX, every judicial
officer annually shall complete a minimum of 12 hours of continuing
judicial education. The hours shall be distributed as follows:
(i) 3 hours in the subject area of integrity and demeanor (including
ethics); and
(ii) 9 hours in the subject area of judicial practice and related areas
as defined by the Board.
(B) Fulfillment.
(i) Course Attendance and Alternatives. The MCJE requirement
shall be fulfilled by attending the required number of MCJE courses
delivered by the Michigan Judicial Institute or Accredited Providers, or
by completing a MCJE activity approved by the Board as sufficient to
meet the MCJE general requirement.
1214 505 MICHIGAN REPORTS
(ii) Courses Offered by MJI. At least six of the annual MCJE
required hours shall be earned through courses offered by the Michigan
Judicial Institute.
(iii) Distance Learning Courses. Up to four of the annual MCJE
required hours may be earned through Board-approved computer-based
or distance education courses.
(iv) Teaching or Alternative Educational Activity. Up to four of the
annual MCJE required hours may be earned through Board-approved
teaching or alternative education activities. The activity must be
approved in advance of including such activity in the required hours.
(C) Newly-elected or Appointed Judicial Officers. Every newly-
elected or appointed judicial officer serving in a general or limited
jurisdiction court shall attend the New Judge/New Magistrate/New
Referee Orientation Program as applicable (administered by the Michi-
gan Judicial Institute) in its entirety at his or her first opportunity. This
requirement shall be in addition to the annual MCJE requirements
described elsewhere in this order.
(D) Newly-appointed Chief Judges. Every newly-appointed chief
judge shall attend the New Chief Judge Orientation Program (admin-
istered by the Michigan Judicial Institute) in its entirety as his or her
first opportunity. This requirement shall be in addition to the annual
MCJE requirements described elsewhere in this order.
5. Waivers, Extensions, Deferrals.
(A) Waiver. Except as provided in subsection (d), the Board may
waive the MCJE requirements for a period of not more than one year
upon a finding by the Board of undue hardship or circumstances beyond
the control of the judicial officer which prevent him or her from
complying in any reasonable manner with the MCJE requirement.
(B) Extensions of Waivers. A waiver may be extended upon applica-
tion to the Board and Board approval. Upon termination of the waiver,
the Board may make such additional MCJE requirements as it deems
appropriate.
(C) Deferrals. Deferment is available to a judge who has left judicial
office by reason of resignation or retirement and who has been approved
for assignment under the SCAO Guidelines for Assignment following
retirement or resignation. A judge who seeks a judicial assignment but
who has not completed the annual judicial education requirement shall
complete the MCJE requirement by the deadline of the assignment year
and will have until the following compliance deadline to complete the
standard requirement plus the deferred MCJE requirements, not to
exceed two (2) times the current annual requirement.
(D) Members of the Armed Forces.
(i) Waiver. Upon written request to the Board, the MCJE require-
ments will be waived in their entirety for any compliance period in
which a judicial officer is a member of the Armed Forces serving on
full-time active duty.
(ii) Termination of Active Duty. Within thirty days after termination
of active duty, the judicial officer must notify the Board and will be
required to comply with MCJE requirements for the forthcoming year.
 SPECIAL ORDERS 1215
6. Standards for Approval of MCJE Activities.
(A) General Standards. All MCJE activities approved for credit shall
meet the following standards:
(i) The activity shall have significant intellectual or practical con-
tent, the primary objective of which is to improve a judicial officer’s
knowledge of current law and/or professional capacity in the following
competency areas: communication, integrity and demeanor, and admin-
istrative capacity to fulfill their judicial responsibilities.
(ii) The activity shall be an organized program of learning to deal
with matters directly related to subjects that satisfy the objectives of
these rules.
(iii) Each MCJE activity shall be open to all judicial officers inter-
ested in the subject matter or with a docket assignment complementary
to the subject matter of the MCJE activity and there shall be no
attendance restrictions, except as may be permitted by the Board, upon
application from a provider, where:
(a) attendance is restricted based on objective criteria for a bona fide
educational objective to enhance the MCJE activity; or
(b) membership in the provider organization is open to all interested
judicial officers of a particular type (judges or quasi-judicial officers) on
a reasonable nondiscriminatory basis and cost.
(v) The program leaders or lecturers shall be qualified with the
practical and/or academic experience necessary to conduct the program
effectively.
(vi) Each attendee shall be provided with thorough, high quality and
carefully prepared written course materials before or at the time of the
activity. Although written materials may not be appropriate to all
courses, they are expected to be utilized whenever possible.
(vii) The course or activity must be presented in a suitable setting to
create a positive educational environment.
(viii) The Board will take into consideration the special needs of
disabled and incapacitated judicial officers in gaining access to and
participation in MCJE activities. The Board shall require providers to
make reasonable accommodations for disabled and incapacitated judi-
cial officers.
(B) Distance Education. Distance learning courses—including
computer-based and teleconference programs—may be approved for
credit provided that they meet interactive, technical, and accreditation
standards set forth by the Board, as well as the following terms and
conditions:
(i) Seminars viewed at remote sites by electronic transmission will
be approved for credit if they offer the opportunity for learner engage-
ment and interaction.
(ii) Only distance learning courses pre-approved for credit or con-
ducted by Accredited Providers may be taken for credit.
7. Credit for MCJE Activities.
(A) Accreditation or Approval. Credit will be given only for comple-
tion of MCJE activities that are accredited or approved by the Board.
1216 505 MICHIGAN REPORTS
(B) Course Length. No course of instruction less than 60 minutes
shall be considered eligible for MCJE credit.
(C) Credit. One hour of credit will be awarded for each 60 minutes of
instruction.
(D) Credit Increments. Credit will be awarded in 30 minute incre-
ments beyond the first 60 minutes.
(E) Local Education Activities. Local education activities will be
subject to approval by the Board for credit upon submission of appro-
priate documentation. Accreditation will be determined by the Board
according to the standards set forth in 6(A).
(F) Approval of MCJE Activities Conducted by Nonaccredited Pro-
viders, Alternative Education Activities, and Teaching Activities.
(i) General Statement. Courses offered by a provider that is not an
accredited MCJE provider, alternative education activities, and teach-
ing activities that are consistent with the purposes of this order may
qualify for MCJE credit, subject to the following terms and conditions.
(ii) Individual Approval Required. All MCJE activities conducted by
a non-accredited provider, alternative education activity, or teaching
activity must be individually approved by the Board for credit.
(iii) Requests for Approval. A judicial officer should request Board
approval for MCJE activities conducted by a non-accredited provider,
alternative education activities, or teaching activities at least 60 days
prior to the activity, but in all cases, the judicial officer must request
such approval no more than 30 days after completing the activity for the
request to be considered.
(iv) Form of Application. The application shall be in the form and
with such documentation required by the Board.
(v) Additional Information. Upon request by the Board, the appli-
cant shall submit to the Board information concerning the course or
activity, including the brochure describing the activity and the qualifi-
cations of anticipated speakers, the method or manner of presentation of
materials, and, if requested, a set of the materials.
(vi) Courses Pertaining to Nonjudicial Subjects or Deemed to Fall
Below Minimum Standards. If a course does not bear entirely on at least
one of the four core competencies comprising Michigan’s judicial educa-
tion curriculum outlined in Section 6 (i.e., legal knowledge and ability,
communication, integrity and demeanor, or administrative capacity), or
the manner of presenting the course is deemed to fall below minimum
standards, the Board may determine that such course is entitled to no
credit or may assign such partial credit as it deems appropriate.
(vii) Teaching Activities. The following additional terms and condi-
tions apply to credit for teaching activities:
(a) Credit will be given on the basis of two hours credit for each one
hour of presentation to a peer audience where the applicant has
prepared quality written materials for use in the presentation.
(b) Credit for repeat presentations or presentations without such
written materials (whether peer presentations or nonjudicial presenta-
tions) will be given only for the actual time of presentation.
 SPECIAL ORDERS 1217
(c) Credit will be given on the basis of one hour of credit for each
hour of presentation where the applicant has prepared quality written
materials for use in the presentation to a nonjudicial audience.
(G) Carry Forward Credits. A judicial officer may carry forward a
balance of credit hours earned in excess of the annual MCJE
requirement—including computer-based and distance learning credits,
which shall retain their character as such—for the succeeding reporting
year, subject to the following limitations.
(i) Credit Limitation. No more than one times the current annual
MCJE requirement may be carried forward into the succeeding report-
ing year.
(ii) Time Limitation. No MCJE credit may be carried forward more
than one succeeding reporting year.
(iii) Credit Attributes. Carry forward credits retain the same attri-
butes (subject matter, manner of presentation) that they would have
had if used in the year in which they were earned.
(H) Law School and Graduate School Courses. Law school and
graduate school courses taken as a student may qualify for MCJE credit,
computed in accordance with these standards, subject to the following
terms and conditions:
(i) Courses must otherwise qualify for credit, and the law school or
graduate school courses in question cannot be required to qualify for the
awarding of a basic degree.
(ii) Courses offered toward graduate or advanced degrees may
receive credit, upon submission of appropriate documents and approval
by the Board.
(iii) One hour of MCJE credit may be given for each approved law
school/graduate credit hour awarded by the school (or the non-credit
equivalent).
(iv) The school offering the course shall be a law school accredited by
the American Bar Association or a regionally-accredited college or
university.
(v) The course offers a learning opportunity which is consistent with
the scope and purposes of this order.
(I) Self Study. Self study will not be approved for credit.
8. Accreditation of Mandatory Continuing Judicial Education Pro-
viders.
(A) Application. Application may be made for accreditation as an
Accredited Provider by submitting the appropriate form to the Board.
(B) Evaluations. The provider shall develop and implement methods
to evaluate its course offerings to determine their effectiveness and the
extent to which they meet the needs of judicial officers and, upon a
request from the Board, provide course evaluations by the attendees on
such forms as the Board shall approve.
(C) Period of Accreditation.
(i) General Rule. The grant of accreditation shall be effective for a
period of two years from the date of the grant.
(ii) Continuation of Accreditation. The accreditation may be contin-
ued for an additional two year period if the provider files an application
1218 505 MICHIGAN REPORTS
for continued accreditation with the Board before the end of the
provider’s accreditation period, subject to further action by the Board.
(D) Conditional Accreditation. In considering whether to continue
an approved provider’s accreditation, the Board shall determine if there
are pending or past breaches of these rules by the approved provider.
The Board, at its discretion, may condition continuation upon the
provider meeting additional requirements specified by the Board.
(E) Termination. If an application for continuation is not filed within
30 days before the end of the provider’s accreditation period, the
provider’s accredited status will terminate at the end of the period. Any
application received thereafter shall be considered by the Board as an
initial application for Accredited Provider status.
(F) Revocation. Accredited Provider status may be revoked by the
Board if the requirements specified by the Board are not met or if, upon
review of the provider’s performance, the Board determines that content
of the course material or the quality of the MCJE activities or provider’s
performance does not meet the standards set forth in this order.
9. Standards for Accredited Provider Status. Accredited Provider
status may be granted at the discretion of the Board to applicants that
satisfy one of the following requirements:
(A) The provider has presented, within the past two years prior to
the date of the application, five separate programs of judicial education
which meet the standards of quality set forth in these rules;
(B) The provider has demonstrated to the Board that its judicial
education activities have consistently met the standards of quality set
forth in this order; or
(C) The provider is an American Bar Association-accredited law
school.
10. Accreditation of a Single Course or MCJE Activity by a Provider.
A provider of MCJE activities that has not qualified as an Accredited
Provider may apply for accreditation of a single MCJE activity in a form
provided by the Board, subject to the following terms and conditions:
(A) The Board may require submission of a detailed description of
the provider, the course, the course materials, and the lectures.
(B) Application by a provider for accreditation of a single MCJE
activity should be submitted prior to the date of presentation of the
activity. Application for retroactive approval must be made within 30
days after the event or activity.
(C) The MCJE activity must meet the standards set forth in this
order.
11. Reporting.
(A) Reporting Responsibility. Reporting shall be the responsibility of
the individual judicial officer.
(B) Form of Reporting of MCJE Activities. A judicial officer shall
report accredited MCJE activities to the Board in a manner approved by
the Board.
(C) Time for Reporting. A judicial officer should report accredited
MCJE activities within 30 days after successfully completing the
activity.
 SPECIAL ORDERS 1219
(D) Annual Compliance Reporting. All judicial officers shall report
MCJE compliance in writing within 30 days after the end of each
calendar year.
12. Compliance.
(A) Records.
(i) Recordkeeping by the Board. The Board shall maintain a record
of MCJE attendance for each judicial officer to whom this order applies.
These records shall be made available as the Board shall determine, but
shall at least establish whether the judge met the required standard for
a particular reporting period.
(ii) Recordkeeping by Judicial Officers. Each active judicial officer
shall maintain records sufficient to establish compliance with the MCJE
requirement in the event of a dispute or inconsistency.
(B) Annual Status Notification. The Board will notify each judicial
officer of his or her MCJE status three months prior to the end of the
reporting period and will provide a final compliance notice within 60
days after the end of the reporting period. The final compliance notice
shall include the hours earned during the reporting period which have
been reported and carryover hours, if applicable.
(C) Noncompliance and Compliance Disputes.
(i) Notification. If a judicial officer fails to comply with this order, or
is determined by the Board to have failed to fully comply with the MCJE
requirements, such judicial officer shall be notified in writing by the
Board of the nature of the noncompliance and be given 180 days from
the date of the notice to remedy the noncompliance.
(ii) Evidence of Compliance or Hearing Request. Within 30 days
after the date of the notice of noncompliance, the judicial officer shall
either submit evidence of compliance or request a hearing.
(iii) Hearing. If the judicial officer timely files a request for a hearing
under this subsection, the Board shall schedule a hearing. The hearing
shall be held at least ten days after written notice to the judicial officer.
In addition, the State Court Administrator, or his or her designee, is
required to attend a hearing held under this provision, and is entitled to
notice in the same manner as the judicial officer.
(iv) Reasonable Cause for Noncompliance. If the Board finds that
the judicial officer had reasonable cause for noncompliance, the judicial
officer shall have 180 days from the date of notice of the Board’s decision
to correct the noncompliance. If compliance is not achieved within the
180 day period, the Board shall proceed as provided.
(v) Report to Judicial Tenure Commission and State Court Admin-
istrator. If a judicial officer fails to remedy noncompliance within 180
days after the later of the date of the notice of noncompliance or the date
of a decision from the Board finding reasonable cause for noncompli-
ance, the Board shall report that fact to the Judicial Tenure Commission
and the State Court Administrator for their consideration.
(vi) Sanctions by State Court Administrator. Upon receiving notice
from the Board of a judge’s noncompliance, the State Court Adminis-
trator may impose an appropriate sanction, separate from any judicial
sanction recommended by the JTC.
1220 505 MICHIGAN REPORTS
(D) Crediting Hours During a Period of Noncompliance. Credit
hours earned shall be first applied to satisfy the requirements of the
compliance period that was the subject of the notice to the judicial officer
before any excess credits earned during the notice period may be applied
to subsequent requirements.
13. Remedial Education. Upon being notified that a judicial officer is
not performing as expected or required of the position, the State Court
Administrator may require that a judicial officer engage in remedial
education. Any remedial education required of a judicial officer will be in
addition to the annual MCJE requirements of all judicial officers.
14. Confidentiality. The files, records, and proceedings of the Board
as they relate to or arise out of any alleged failure of a judicial officer to
satisfy the requirements of this order shall be deemed confidential and
shall not be disclosed except in furtherance of the duties of the Board or
upon the request of the affected judicial officer or as they may be
introduced in evidence or otherwise produced in proceedings under this
order.
Staff Comment: This proposed administrative order would establish
a mandatory continuing judicial education program for the state’s
justices, judges, and quasi-judicial officers.
The staff comment is not an authoritative construction by the Court.
In addition, adoption of a new rule or amendment in no way reflects a
substantive determination by this Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by July 1, 2020, at P.O.
Box 30052, Lansing, MI 48909, or [email protected]. When
filing a comment, please refer to ADM File No. 2019-33. Your comments
and the comments of others will be posted under the chapter affected by
this proposal at [http://courts.mi.gov/courts/michigansupremecourt/
rules/court-rules-admin-matters/pages/default.aspx].
MARKMAN, J. (concurring). I support the Court’s decision to publish
for public comment the proposed administrative order for mandatory
continuing judicial education (CJE), but write to raise the following
questions that might perhaps be addressed in the course of such
comment:
First, given that Michigan has lacked mandatory CJE since its
formation, what should be viewed as the most compelling present
rationale for such a program?
Second, if CJE is not to devolve into an assemblage of “make-work”
requirements, how should mandatory CJE programs be designed to
ensure that they are of genuinely lasting value to those who exercise the
judicial power of the state, as well as the public these persons serve?
Third, should mandatory CJE include a testing component in which
judges demonstrate that they have actually gained useful or practical
legal insight, or otherwise derived benefit, from these programs?
 SPECIAL ORDERS 1221
Fourth, in developing a mandatory CJE curriculum, do we wish to
give emphasis to “nuts-and-bolts” courses such as those currently
offered by the Michigan Judicial Institute, or do we want to give
emphasis to “law school-oriented” courses such as jurisprudence, the
evolution of the common law, and legal history? And in emulating the
mandatory CJE requirements of Pennsylvania, as our proposal does,
should there be some sense that courses offered in that state such as
“America’s Fascination with Serial Killers,” “Best Practices for Han-
dling Sovereign Citizen Litigants,” and “Storytelling and Persuasion
Skills for Lawyers” are to be discouraged or avoided?
Fifth, is there any basis to agree or disagree with Justice BERNSTEIN
in his dissent that if mandatory CJE is adopted, mandatory continuing
legal education (CLE) for attorneys will likely follow? And if it is to
follow, and in light of the fact that Michigan has lacked mandatory CLE
since its formation, what should be viewed as the most compelling
present rationale for such a program?
Sixth, what is inadequate about the present range of voluntary CJE
programs currently offered by the Michigan Judicial Institute and
elsewhere? If the only difference is that the current proposal is manda-
tory and MJI and other programs are voluntary, what, if anything, does
this portend for the success of the newly created requirement?
Seventh, because the judiciary, as with any other governmental
entity, is expected to serve as a responsible custodian of public funds,
how significant a consideration should new program costs be as to
whether mandatory CJE is adopted and its specific form?
Eighth, what will be the impact upon the expedition of the judicial
process of 591 judges throughout the state being obligated to convene
and participate in mandatory CJE programs?
Ninth, must distinctive curriculums be established for the trial and
appellate judges of the state? For circuit, probate, and district judges?
Tenth, by what means can it best be ensured that mandatory CJE
programs remain neutral and even-handed in their influence upon
substantive judicial perspectives?
BERNSTEIN, J. (dissenting). I agree that the goal of continuing judicial
education is a fine one—however, my problem lies with the idea of
mandating educational goals for an already burdened judiciary. We
should respect the autonomy of individual judicial officers to choose for
themselves; the government should not seek to intervene in these
individual decisions. Stated simply, I believe that any of the problems
that continuing judicial education seeks to correct could be better
addressed in private forums by private actors.
Moreover, should continuing judicial education become a reality in
Michigan, I fear that continuing legal education for all attorneys might
come next.
1222 505 MICHIGAN REPORTS
Order Entered March 19, 2020:

PROPOSED AMENDMENTS OF MCR 3.971, 3.972, 3.973, 3.977, 3.993, 7.202,

AND 7.204.
On order of the Court, this is to advise that the Court is considering
amendments of Rules 3.971, 3.972, 3.973, 3.977, 3.993, 7.202, and 7.204 of
the Michigan Court Rules. Before determining whether the proposal
should be adopted, changed before adoption, or rejected, this notice is
given to afford interested persons the opportunity to comment on the form
or the merits of the proposal or to suggest alternatives. The Court
welcomes the views of all. This matter will also be considered at a public
hearing. The notices and agendas for public hearings are posted at [http://
courts.mi.gov/courts/michigansupremecourt/rules/pages/default.aspx].
Publication of this proposal does not mean that the Court will issue
an order on the subject, nor does it imply probable adoption of the
proposal in its present form.

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 3.971. PLEAS OF ADMISSION OR NO CONTEST.

(A) [Unchanged.]
(B) Advice of Rights and Possible Disposition. Before accepting a
plea of admission or plea of no contest, the court must advise the
respondent on the record or in a writing that is made a part of the file:
(1)-(7) [Unchanged.]
(8) the respondent may be barred from challenging the assumption
of jurisdiction in an appeal from anthe order terminating parental
rights if they do not timely file an appeal of the initial dispositional order
under MCR 7.2043.993(A)(1), 3.993(A)(2), or a delayed appeal under
MCR 3.993(C).
(C)-(D) [Unchanged.]
RULE 3.972. TRIAL.
(A)-(E) [Unchanged.]
(F) Respondent’s Rights Following Trial and Possible Disposition. If
the trial results in a verdict that one or more statutory grounds for
jurisdiction has been proven, the court shall advise the respondent
orally or in writing that:
(1)-(2) [Unchanged.]
(3) the respondent may be barred from challenging the assumption
of jurisdiction if they do not timely file an appeal under MCR
7.2043.993(A)(1), 3.993(A)(2), or a delayed appeal under MCR 3.993(C).
(G) [Unchanged.]
RULE 3.973. DISPOSITIONAL HEARING.
(A)-(F) [Unchanged.]
 SPECIAL ORDERS 1223
(G) Respondent’s Rights Upon Entry of Dispositional Order. When
the court enters an initial order of disposition following adjudication the
court shall advise the respondent orally or in writing:
(1)-(3) [Unchanged.]
(4) the respondent may be barred from challenging the assumption
of jurisdiction or the removal of the minor from a parent’s care and
custody in an appeal from the order terminating parental rights if they
do not timely file an appeal under MCR 7.2043.993(A)(1), 3.993(A)(2), or
a delayed appeal under MCR 3.993(C).
(H)-(J) [Unchanged.]
RULE 3.977. TERMINATION OF PARENTAL RIGHTS.
(A)-(I) [Unchanged.]
(J) Respondent’s Rights Following Termination.
(1) [Unchanged.]
(2) Appointment of Appellate CounselAttorney. Request and ap-
pointment of appellate counsel is governed by MCR 3.993.
(a) If a request is timely filed and the court finds that the respondent
is financially unable to provide an attorney, the court shall appoint an
attorney within 14 days after the respondent’s request is filed. The chief
judge of the court shall bear primary responsibility for ensuring that the
appointment is made within the deadline stated in this rule.
(b) In a case involving the termination of parental rights, the order
described in (J)(2) and (3) must be entered on a form approved by the
State Court Administrator’s Office, entitled “Claim of Appeal and Order
Appointing Counsel,” and the court must immediately send to the Court
of Appeals a copy of the Claim of Appeal and Order Appointing Counsel,
a copy of the judgment or order being appealed, and a copy of the
complete register of actions in the case. The court must also file in the
Court of Appeals proof of having made service of the Claim of Appeal and
Order Appointing Counsel on the respondent(s), appointed counsel for
the respondent(s), the court reporter(s)/recorder(s), petitioner, the pros-
ecuting attorney, the lawyer-guardian ad litem for the child(ren) under
MCL 712A.13a(1)(f), and the guardian ad litem or attorney (if any) for
the child(ren). Entry of the order by the trial court pursuant to this
subrule constitutes a timely filed claim of appeal for the purposes of
MCR 7.204.
(3) Transcripts. If the court finds that the respondent is financially
unable to pay for the preparation of transcripts for appeal, the court
must order the complete transcripts of all proceedings prepared at
public expense.
(K) [Unchanged.]
RULE 3.993 APPEALS.
(A)-(C) [Unchanged.]
(D) Request and Appointment of Counsel.
(1) A request for appointment of appellate counsel must be made
within 14 days after notice of the order is given or an order is entered
denying a timely filed postjudgment motion.
1224 505 MICHIGAN REPORTS
(2) If a request for appointment of appellate counsel is timely filed
and the court finds that the respondent is financially unable to provide
an attorney, the court shall appoint an attorney within 14 days after the
respondent’s request is filed. The chief judge of the court shall bear
primary responsibility for ensuring that the appointment is made
within the deadline stated in this rule.
(3) The order described in subrule (D)(2) must be entered on a form
approved by the State Court Administrator’s Office, entitled “Claim of
Appeal and Order Appointing Counsel,” and the court must immediately
send to the Court of Appeals a copy of the Claim of Appeal and Order
Appointing Counsel, a copy of the judgment or order being appealed, and
a copy of the complete register of actions in the case. The court must also
file in the Court of Appeals proof of having made service of the Claim of
Appeal and Order Appointing Counsel on the respondent(s), appointed
counsel for the respondent(s), the court reporter(s)/recorder(s), peti-
tioner, the prosecuting attorney, the lawyer-guardian ad litem for the
child(ren) under MCL 712A.13a(1)(f), and the guardian ad litem or
attorney (if any) for the child(ren). Entry of the order by the trial court
pursuant to this subrule constitutes a timely filed claim of appeal for the
purposes of MCR 7.204.
(E) Transcripts. If the court appoints appellate counsel for respon-
dent, the court must order the complete transcripts of all proceedings
prepared at public expense.
RULE 7.202. DEFINITIONS.
For purposes of this subchapter:
(1)-(4) [Unchanged.]
(5) “custody case” means a domestic relations case in which the
custody of a minor child is an issue, an adoption case, or a child
protective proceeding, or delinquency case in which a dispositional order
removing the minor from the minor’s home is an issuecase in which the
family division of circuit court has entered an order terminating
parental rights or an order of disposition removing a child from the
child’s home;
(6) [Unchanged.]
RULE 7.204. FILING APPEAL OF RIGHT; APPEARANCE.
(A) Time Requirements. The time limit for an appeal of right is
jurisdictional. See MCR 7.203(A). The provisions of MCR 1.108 regard-
ing computation of time apply. For purposes of subrules (A)(1) and
(A)(2), “entry” means the date a judgment or order is signed, or the date
that data entry of the judgment or order is accomplished in the issuing
tribunal’s register of actions.
(1) Except where another time is provided by law or court rule, an
appeal of right in any civil case must be taken within 21 days. The
period runs from the entry of:An appeal of right in a civil action must be
taken within
(a) 21 days after entry of the judgment or order appealed from;
(b) 21 days after the entry of an order deciding a motion for new
trial, a motion for rehearing or reconsideration, or a motion for other
 SPECIAL ORDERS 1225
relief from the order or judgment appealed, if the motion was filed
within the initial 21-day appeal period provided by (a), (c), or (d) of this
subruleor within further time the trial court has allowed for good cause
during that 21-day period;
(c) an order appointing counsel14 days after entry of an order of the
family division of the circuit court terminating parental rights under the
Juvenile Code, or entry of an order denying a motion for new trial,
rehearing, reconsideration, or other postjudgment relief from an order
terminating parental rights, if the motion was filed within the initial 14-
day appeal period or within further time the trial court may have
allowed during that period; or
(d) an order denying a timely request for appointment of counsel in
a civil case in which an indigent party is entitled to appointed counsel.
The request is considered timely if received by the trial court within the
time for claiming an appeal as provided by (a) or (b) of this subrulea-
nother time provided by law.
If a party in a civil action is entitled to the appointment of an
attorney and requests the appointment within 14 days after the final
judgment or order, the 14-day period for the taking of an appeal or the
filing of a postjudgment motion begins to run from the entry of an order
appointing or denying the appointment of an attorney. If a timely
postjudgment motion is filed before a request for appellate counsel, the
party may request counsel within 14 days after the decision on the
motion.
(2)-(3) [Unchanged.]
(B)-(H) [Unchanged.]
Staff Comment: The proposed amendments of MCR 3.971, 3.972,
3.973, 3.977, 3.993, 7.202 and 7.204 would make the appeal process for
child protective cases uniform (instead of having a separate process for
cases involving termination of parental rights). The amendments also
would make the appeal period uniform (21 days) for all child protections
cases.
The staff comment is not an authoritative construction by the Court.
In addition, adoption of a new rule or amendment in no way reflects a
substantive determination by this Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the amendment may be sent to the
Supreme Court Clerk in writing or electronically by July 1, 2020, at P.O.
Box 30052, Lansing, MI 48909, or [email protected]. When
filing a comment, please refer to ADM File No. 2015-21. Your comments
and the comments of others will be posted under the chapter affected
by this proposal at [http://courts.mi.gov/courts/michigansupremecourt/
rules/court-rules-admin-matters/pages/default.aspx].
1226 505 MICHIGAN REPORTS
Order Entered March 19, 2020:

PROPOSED AMENDMENTS OF MCR 6.310, 6.425, 6.428, 6.429, 6.431, 7.204,

7.205, 7.208, 7.211, AND 7.305 AND PROPOSED ADOPTION OF MCR 1.112.
On order of the Court, this is to advise that the Court is considering
amendments of Rules 6.310, 6.425, 6.428, 6.429, 6.431, 7.204, 7.205,
7.208, 7.211, 7.305, and a proposed addition of Rule 1.112 of the Michigan
Court Rules. Before determining whether the proposal should be adopted,
changed before adoption, or rejected, this notice is given to afford
interested persons the opportunity to comment on the form or the merits
of the proposal or to suggest alternatives. The Court welcomes the views
of all. This matter also will be considered at a public hearing. The notices
and agendas for public hearings are posted at [http://courts.mi.gov/
courts/michigansupremecourt/rules/pages/default.aspx].
Publication of this proposal does not mean that the Court will issue
an order on the subject, nor does it imply probable adoption of the
proposal in its present form.

[Rule 1.112 is a new rule and no underlining is included;

otherwise, additions to the text are indicated in underlining
and deleted text is shown by strikeover.]

RULE 1.112. FILINGS BY INCARCERATED INDIVIDUALS.

If filed by an unrepresented individual who is incarcerated in a
prison or jail, a pleading or other document must be deemed filed on the
date of deposit in the institution’s outgoing mail. Timely filing may be
shown by a receipt of mailing or sworn statement setting forth the date
of deposit and that postage has been prepaid.
RULE 6.310. WITHDRAWAL OR VACATION OF PLEA.
(A)-(B) [Unchanged.]
(C) Motion to Withdraw Plea After Sentence.
(1)-(4) [Unchanged.]
(5) If a motion to withdraw plea is received by the court after the
expiration of the periods set forth above, and if the appellant is an
inmate in the custody of the Michigan Department of Corrections and
has submitted the motion as a pro se party, the motion shall be deemed
presented for filing on the date of deposit of the motion in the outgoing
mail at the correctional institution in which the inmate is housed.
Timely filing may be shown by a sworn statement filed with the motion,
which must set forth the date of deposit and state that first-class
postage has been prepaid. The exception applies to cases in which a plea
was accepted on or after the effective date of this amendment. This
exception also applies to an inmate housed in a penal institution in
another state or in a federal penal institution who seeks to withdraw a
plea in a Michigan court.
(D)-(E) [Unchanged.]
RULE 6.425. SENTENCING; APPOINTMENT OF APPELLATE COUNSEL.
(A) Presentence Report; Contents.
 SPECIAL ORDERS 1227
(1) [Unchanged.]
(2) On request, the probation officer must give the defendant’s
attorney notice and a reasonable opportunity to attend the presentence
interview.
(2) [Renumbered (3) but otherwise unchanged.]
(3) Regardless of the sentence imposed, the court must have a copy
of the presentence report and of any psychiatric report sent to the
Department of Corrections. If the defendant is sentenced to prison, the
copies must be sent with the commitment papers.
(B) [Unchanged.]
(C) Presentence Report; Disclosure After Sentencing. After sentenc-
ing, the court, on written request, must provide the prosecutor, the
defendant’s lawyer, or the defendant not represented by a lawyer, with
a copy of the presentence report and any attachments to it. The court
must exempt from disclosure any information the sentencing court
exempted from disclosure pursuant to subrule (B).
(D) [Relettered (C) but otherwise unchanged.]
(ED) Sentencing Procedure.
(1) [Unchanged.]
(2) Resolution of Challenges and Corrections.
(a) If any information in the presentence report is challenged, the
court must allow the parties to be heard regarding the challenge, and
make a finding with respect to the challenge or determine that a finding
is unnecessary because it will not take the challenged information into
account in sentencing. If the court finds merit in the challenge, or
determines that it will not take the challenged information into account
in sentencing, or otherwise determines that the report should be
corrected, it must orderdirect the probation officer to (i) correct the
report. or delete the challenged information in the report, whichever is
appropriate, and If ordered to correct the report, the probation officer
must(ii) provide defendant’s lawyer with an opportunity to review the
corrected report before it is sent to the Department of Corrections,
certify that the report has been corrected, and ensure that no prior
version of the report is used for classification, programming, or parole
purposes.
(b) [Unchanged.]
(3) [Unchanged.]
(E) Presentence Report; Retention and Disclosure after Sentencing.
Regardless of the sentence imposed, the Department of Corrections
must retain the presentence report reflecting any corrections ordered
under subrule (D)(2). On written request or order of the court, the
Department of Corrections must provide the prosecutor, the defendant’s
lawyer, or the defendant if not represented by a lawyer, with a copy of
the report. On written request, the court must provide the prosecutor,
the defendant’s lawyer, or the defendant if not represented by a lawyer,
with copies of any documents that were presented for consideration at
sentencing, including the court’s initial copy of the presentence report if
corrections were made after sentencing. If the court exempts or orders
1228 505 MICHIGAN REPORTS
the exemption of any information from disclosure, it must follow the
exemption requirements of subrule (B).
(F)-(G) [Unchanged.]
RULE 6.428. RESTORATION OF APPELLATE RIGHTSREISSUANCE OF JUDGMENT.
If the defendant did not appeal within the time allowed by MCR
7.204(A)(2) and demonstrates that the attorney or attorneys retained or
appointed to represent the defendant on direct appeal from the judgment
either disregarded the defendant’s instruction to perfect a timely appeal
of right, or otherwise failed to provide effective assistance, and, but for
counsel’s deficient performance, the defendant would have perfected a
timely appeal of right, whether convicted by plea or at trial, was denied
the right to appellate review or the appointment of appellate counsel due
to errors by the defendant’s prior attorney or the court, or other factors
outside the defendant’s control, the trial court shall issue an order
restarting the time in which to file an appeal or request counselof right.
RULE 6.429. CORRECTION AND APPEAL OF SENTENCE.
(A) [Unchanged.]
(B) Time for Filing Motion.
(1)-(4) [Unchanged.]
(5) If a motion to correct an invalid sentence is received by the court
after the expiration of the periods set forth above, and if the appellant is
an inmate in the custody of the Michigan Department of Corrections and
has submitted the motion as a pro se party, the motion shall be deemed
presented for filing on the date of deposit of the motion in the outgoing
mail at the correctional institution in which the inmate is housed.
Timely filing may be shown by a sworn statement filed with the motion,
which must set forth the date of deposit and state that first-class
postage has been prepaid. The exception applies to cases in which a
judgment of conviction and sentence is entered on or after the effective
date of this amendment. This exception also applies to an inmate housed
in a penal institution in another state or in a federal penal institution
who seeks to correct an invalid sentence in a Michigan court.
(C) [Unchanged.]
RULE 6.431. NEW TRIAL.
(A) Time for Making Motion.
(1)-(4) [Unchanged.]
(5) If a motion for new trial is received by the court after the
expiration of the periods set forth above, and if the appellant is an
inmate in the custody of the Michigan Department of Corrections and
has submitted the motion as a pro se party, the motion shall be deemed
presented for filing on the date of deposit of the motion in the outgoing
mail at the correctional institution in which the inmate is housed.
Timely filing may be shown by a sworn statement filed with the motion,
which must set forth the date of deposit and state that first-class
postage has been prepaid. The exception applies to cases in which the
trial court rendered its decision on or after the effective date of this
 SPECIAL ORDERS 1229
amendment. This exception also applies to an inmate housed in a penal
institution in another state or in a federal penal institution who seeks a
new trial in a Michigan court.
(B)-(D) [Unchanged.]
RULE 7.204. FILING APPEAL OF RIGHT; APPEARANCE.
(A) Time Requirements. The time limit for an appeal of right is
jurisdictional. See MCR 7.203(A). The provisions of MCR 1.108 regard-
ing computation of time apply. For purposes of subrules (A)(1) and
(A)(2), “entry” means the date a judgment or order is signed, or the date
that data entry of the judgment or order is accomplished in the issuing
tribunal’s register of actions.
(1) [Unchanged.]
(2) An appeal of right in a criminal case must be taken
(a)-(d) [Unchanged.]
(e) If a claim of appeal is received by the court after the expiration of
the periods set forth above, and if the appellant is an inmate in the
custody of the Michigan Department of Corrections and has submitted
the claim as a pro se party, the claim shall be deemed presented for filing
on the date of deposit of the claim in the outgoing mail at the
correctional institution in which the inmate is housed. Timely filing may
be shown by a sworn statement, which must set forth the date of deposit
and state that first-class postage has been prepaid. The exception
applies to claims of appeal from decisions or orders rendered on or after
March 1, 2010. This exception also applies to an inmate housed in a
penal institution in another state or in a federal penal institution who
seeks to appeal in a Michigan court.
A motion for rehearing or reconsideration of a motion mentioned in
subrules (A)(1)(b) or (A)(2)(d) does not extend the time for filing a claim
of appeal, unless the motion for rehearing or reconsideration was itself
filed within the 21- or 42- day period.
(3) [Unchanged.]
(B)-(H) [Unchanged.]
RULE 7.205. APPLICATION FOR LEAVE TO APPEAL.
(A) Time Requirements: An application for leave to appeal must be
filed within
(1)-(2) [Unchanged.]
(3) If an application for leave to appeal in a criminal case is received
by the court after the expiration of the periods set forth above or the
period set forth in MCR 7.205(G), and if the appellant is an inmate in
the custody of the Michigan Department of Corrections and has submit-
ted the application as a pro se party, the application shall be deemed
presented for filing on the date of deposit of the application in the
outgoing mail at the correctional institution in which the inmate is
housed. Timely filing may be shown by a sworn statement, which must
set forth the date of deposit and state that first-class postage has been
prepaid. The exception applies to applications for leave to appeal from
decisions or orders rendered on or after March 1, 2010. This exception
1230 505 MICHIGAN REPORTS
also applies to an inmate housed in a penal institution in another state
or in a federal penal institution who seeks to appeal in a Michigan court.
(B)-(H) [Unchanged.]
RULE 7.208. AUTHORITY OF COURT OR TRIBUNAL APPEALED FROM.
(A) [Unchanged.]
(B) Postjudgment Motions in Criminal Cases.
(1) WithinNo later than 56 days after the commencement of the time
for filing the defendant-appellant’s brief as provided by MCR
7.212(A)(1)(a)(iii), the defendant may file in the trial court a motion for
a new trial, for judgment of acquittal, to withdraw a plea, or to correct
an invalid sentence.
(2) [Unchanged.]
(3) The trial court shall hear and decide the motion within 5628 days
of filing, unless the court determines that an adjournment is necessary
to secure evidence needed for the decision on the motion or that there is
other good cause for an adjournment.
(4)-(6) [Unchanged.]
(C)-(J) [Unchanged.]
RULE 7.211. MOTIONS IN COURT OF APPEALS.
(A)-(B) [Unchanged.]
(C) Special Motions. If the record on appeal has not been sent to the
Court of Appeals, except as provided in subrule (C)(6), the party making
a special motion shall request the clerk of the trial court or tribunal to
send the record to the Court of Appeals. A copy of the request must be
filed with the motion.
(1) Motion to Remand.
(a) Within the time provided for filing the appellant’s brief, tThe
appellant may move to remand to the trial court. The motion must
identify an issue sought to be reviewed on appeal and show:
(i)-(ii) [Unchanged.]
A motion under this subrule must be supported by affidavit or offer
of proof regarding the facts to be established at a hearing.
(b)-(c) [Unchanged.]
(d) If a motion to remand is filedgranted, further proceedings in the
Court of Appeals are stayed until the motion is denied or the trial court
proceedings are completedcompletion of the proceedings in the trial
court pursuant to the remand, unless the Court of Appeals orders
otherwise.
(e)-(f) [Unchanged.]
(2)-(9) [Unchanged.]
(D)-(E) [Unchanged.]
RULE 7.305. APPLICATION FOR LEAVE TO APPEAL.
(A)-(B) [Unchanged.]
(C) When to File.
(1)-(4) [Unchanged.]
 SPECIAL ORDERS 1231
(5) Late Application, Exception. Late applications will not be ac-
cepted except as allowed under this subrule. If an application for leave
to appeal in a criminal case is not received within the time periods
provided in subrules (C)(1) or (2), and the appellant is an inmate in the
custody of the Michigan Department of Corrections and has submitted
the application as a pro se party, the application shall be deemed
presented for filing on the date of deposit of the application in the
outgoing mail at the correctional institution in which the inmate is
housed. Timely filing may be shown by a sworn statement, which must
set forth the date of deposit and state that first-class postage was
prepaid. The exception applies to applications from decisions of the
Court of Appeals rendered on or after March 1, 2010. This exception also
applies to an inmate housed in a federal or other state correctional
institution who is acting pro se in a criminal appeal from a Michigan
court.
(6)-(8) [Renumbered (5)-(7) but otherwise unchanged.]
(D)-(I) [Unchanged.]
Staff comment: The proposed amendments were submitted by the
State Appellate Defender Office and would address several issues.
First, it would expand the prisoner mailbox rule to all legal filings
(not just claims of appeal and postjudgment motions) made by a person
incarcerated in prison or jail (not just prison, as under the current rule).
This part of the proposal includes a new MCR 1.112, and elimination of
specific prison mailbox provisions in MCR 6.310(C)(5), MCR 6.429(B)(5),
MCR 6.431(A)(5), MCR 7.204(A)(2)(e), MCR 7.205(A)(3), and MCR
7.305(C)(5). One difficulty with this expansion is the fact that most jails
do not have a mail log system like that in place in prisons. Second, the
proposal would expand certain time frames for filing and deciding
postjudgment motions in criminal cases, as reflected in the amendments
of MCR 7.208 and MCR 7.211. Third, the proposal would reconfigure
and expand the “Reissuance of Judgment” rule, as shown in the
proposed amendments of MCR 6.428. Finally, the proposal (as shown in
proposed amendments of MCR 6.425) would require a probation officer
to give defendant’s attorney notion and a reasonable opportunity to
attend the presentence interview, require a probation agent to not only
correct a report but certify that the correction has been made, and
“ensure that no prior version of the report is used for classification,
programming, or parole purposes.” This portion of the proposal also
would require the Michigan Department of Corrections to provide the
prosecutor, defendant, or defense lawyer with a copy of the presentence
investigation report, and further require the court to provide to the
parties any documents presented for consideration at sentencing, in-
cluding any PSIR considered before corrections were made.
The staff comment is not an authoritative construction by the Court.
In addition, adoption of an amendment in no way reflects a substantive
determination by this Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
1232 505 MICHIGAN REPORTS
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by July 1, 2020, at P.O.
Box 30052, Lansing, MI 48909, or [email protected]. When
filing a comment, please refer to ADM File Nos. 2018-33/2019-20/2019-38.
Your comments and the comments of others will be posted under the
chapter affected by this proposal at [http://courts.mi.gov/courts/michigan
supremecourt/rules/court-rules-admin-matters/pages/default.aspx].

Order Entered March 19, 2020:

PROPOSED AMENDMENT OF MCR 7.314.

On order of the Court, this is to advise that the Court is considering an
amendment of Rule 7.314 of the Michigan Court Rules. Before determin-
ing whether the proposal should be adopted, changed before adoption, or
rejected, this notice is given to afford interested persons the opportunity
to comment on the form or the merits of the proposal or to suggest
alternatives. The Court welcomes the views of all. This matter also will be
considered at a public hearing. The notices and agendas for public
hearings are posted at [http://courts.mi.gov/courts/michigansupreme
court/rules/pages/default.aspx].

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 7.314. CALL AND ARGUMENT OF CASES.

(A) [Unchanged.]
(B) Argument.
(1) In a calendar case in which one side is or both sides are entitled
to oral argument, the time allowed for argument shall be provided in the
order granting leaveis 30 minutes for each side unless the Court orders
otherwise. When only one side is scheduled for oral argument, 15
minutes is allowed unless the Court orders otherwise.
(2) [Unchanged.]
The time for argument may be extended by Court order on motion of
a party filed at least 14 days before the session begins or by the Chief
Justice during the argument.
Staff comment: The proposed amendment of MCR 7.314 would
eliminate the oral argument time period and instead provide for an
amount of time established by the Court in the order granting leave to
appeal.
The staff comment is not an authoritative construction by the Court.
In addition, adoption of an amendment in no way reflects a substantive
determination by this Court.
 SPECIAL ORDERS 1233
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by July 1, 2020, at P.O.
Box 30052, Lansing, MI 48909, or [email protected]. When
filing a comment, please refer to ADM File No. 2019-26. Your comments
and the comments of others will be posted under the chapter affected by
this proposal [http://courts.mi.gov/courts/michigansupremecourt/rules/
court-rules-admin-matters/pages/default.aspx].

Order Entered March 19, 2020:

PROPOSED AMENDMENTS OF MCR 6.310, 6.429, 6.431, 6.509, AND 7.205 AND
PROPOSED ADOPTION OF MCR 6.126.
On order of the Court, this is to advise that the Court is considering
amendments of Rules 6.310, 6.429, 6.431, 6.509, and 7.205 and a
proposed addition of Rule 6.126 of the Michigan Court Rules. Before
determining whether the proposal should be adopted, changed before
adoption, or rejected, this notice is given to afford interested persons the
opportunity to comment on the form or the merits of the proposals or to
suggest alternatives. The Court welcomes the views of all. This matter
also will be considered at a public hearing. The notices and agendas
for public hearings are posted at [http://courts.mi.gov/courts/michigan
supremecourt/rules/pages/default.aspx].
Publication of this proposal does not mean that the Court will issue
an order on the subject, nor does it imply probable adoption of the
proposal in its present form.

[Rule 6.126 is a new rule and no underlining is included; otherwise,

additions to the text are indicated in underlining and deleted text
is shown by strikeover.]

RULE 6.126. DECISION ON ADMISSIBILITY OF EVIDENCE.

Where the court makes a decision on the admissibility of evidence
and the prosecutor or the defendant files an interlocutory application for
leave to appeal seeking to reverse that decision, the court shall stay
proceedings pending resolution of the application in the Court of
Appeals, unless the court makes findings that the evidence is clearly
cumulative or that an appeal is frivolous because legal precedent is
clearly against the party’s position. If the application for leave to appeal
is filed by the prosecutor and the defendant is incarcerated, the
defendant may request that the court reconsider whether pretrial
release is appropriate.
RULE 6.310. WITHDRAWAL OR VACATION OF PLEA.
(A)-(B) [Unchanged.]
1234 505 MICHIGAN REPORTS
(C) Motion to Withdraw Plea After Sentence.
(1) The defendant may file a motion to withdraw the plea within the
time for filing an application for leave to appeal under MCR
7.205(A)(2)(a) and (b)(i)-(iii)6 months after sentence or within the time
provided by subrule (C)(2).
(2) If 6 months have elapsed since sentencing, the defendant may
file a motion to withdraw the plea if:
(a) the defendant has filed a request for the appointment of counsel
pursuant to MCR 6.425(G)(1) within the 6-month period,
(b) the defendant or defendant’s lawyer, if one is appointed, has
ordered the appropriate transcripts within 28 days of service of the
order granting or denying the request for counsel or substitute counsel,
unless the transcript has already been filed or has been ordered by the
court under MCR 6.425(G), and
(c) the motion to withdraw the plea is filed in accordance with the
provisions of this subrule within 42 days after the filing of the tran-
script. If the transcript was filed before the order appointing counsel or
substitute counsel, or the order denying the appointment of counsel, the
42-day period runs from the date of that order.
(3)-(5) [Renumbered (2)-(4) but otherwise unchanged.]
(D)-(E) [Unchanged.]
RULE 6.429. CORRECTION AND APPEAL OF SENTENCE.
(A) [Unchanged.]
(B) Time for Filing Motion.
(1)-(2) [Unchanged.]
(3) If the defendant may only appeal by leave or fails to file a timely
claim of appeal, a motion to correct an invalid sentence may be filed
within the time for filing an application for leave to appeal under MCR
7.205(A)(2)(a) and (b)(i)-(iii).:
(a) within 6 months of entry of the judgment of conviction and
sentence, or,
(b) if 6 months have elapsed since entry of the judgment of convic-
tion and sentence, the defendant may file a motion to correct an invalid
sentence if:
(i) the defendant has filed a request for the appointment of counsel
pursuant to MCR 6.425(G)(1) within the 6-month period,
(ii) The defendant or defendant’s lawyer, if one is appointed, has
ordered the appropriate transcripts within 28 days of service of the
order granting or denying the request for counsel or substitute counsel,
unless the transcript has already been filed or has been ordered by the
court under MCR 6.425(G), and
(iii) The motion to correct invalid sentence is filed in accordance with
the provisions of this subrule within 42 days after the filing of the
transcript. If the transcript was filed before the order appointing counsel
or substitute counsel, or the order or denying the appointment of
counsel, the 42-day period runs from the date of that order.
(4)-(5) [Unchanged.]
(C) [Unchanged.]
 SPECIAL ORDERS 1235
RULE 6.431. NEW TRIAL.
(A) Time for Making Motion.
(1)-(2) [Unchanged.]
(3) If the defendant may only appeal by leave or fails to file a timely
claim of appeal, a motion for a new trial may be filed within the time for
filing an application for leave to appeal under MCR 7.205(A)(2)(a) and
(b)(i)-(iii).:
(a) within 6 months of entry of the judgment of conviction and
sentence, or
(b) If 6 months have elapsed since entry of the judgment of convic-
tion and sentence, the defendant may file a motion for new trial if:
(i) the defendant has filed a request for the appointment of counsel
pursuant to MCR 6.425(G)(1) within the 6-month period,
(ii) the defendant or defendant’s lawyer, if one is appointed, has
ordered the appropriate transcripts within 28 days of service of the
order granting or denying the request for counsel or substitute counsel,
unless the transcript has already been filed or has been ordered by the
court under MCR 6.425(G), and
(iii) the motion for a new trial is filed in accordance with the
provisions of this subrule within 42 days after the filing of the tran-
script. If the transcript was filed before the order appointing counsel or
substitute counsel, or the order denying the appointment of counsel, the
42-day period runs from the date of that order.
(4)-(5) [Unchanged.]
(B)-(D) [Unchanged.]
RULE 6.509. APPEAL.
(A) Availability of Appeal. Appeals from decisions under this sub-
chapter are by application for leave to appeal to the Court of Appeals
pursuant to MCR 7.205(A)(1). The 6-month time limit provided by MCR
7.205(AG)(43)(a), runs from the decision under this subchapter. Nothing
in this subchapter shall be construed as extending the time to appeal
from the original judgment.
(B)-(D) [Unchanged.]
RULE 7.205. APPLICATION FOR LEAVE TO APPEAL.
(A) Time Requirements. The time limit for an application for leave
to appeal is jurisdictional. See MCR 7.203(B). The provisions of MCR
1.108 regarding computation of time apply. For purposes of this subrule,
“entry” means the date a judgment or order is signed, or the date that
data entry of the judgment or order is accomplished in the issuing
tribunal’s register of actions. An application for leave to appeal must be
filed within
(1) Except as otherwise provided in this rule, an application for
leave to appeal must be filed within:
(a) 21 days after entry of the judgment or order to be appealed from
or within other time as allowed by law or rule; or
(b2) 21 days after entry of an order deciding a motion for new trial,
a motion for rehearing or reconsideration, or a motion for other relief
from the order or judgment appealed, if the motion was filed within the
1236 505 MICHIGAN REPORTS
initial 21-day appeal period or within further time the trial court has
allowed for good cause during that 21-day period.
(2) In a criminal case involving a final judgment or final order
entered in that case, an application for leave to appeal filed on behalf of
the defendant must be filed within the later of:
(a) 6 months after entry of the judgment or order; or
(b) 42 days after:
(i) an order appointing appellate counsel or substitute counsel, or
denying a request for appellate counsel, if the defendant requested
counsel within 6 months after entry of the judgment or order to be
appealed;
(ii) the filing of transcripts ordered under MCR 6.425(G)(1)(f), if the
defendant requested counsel within 6 months after entry of the judg-
ment or order to be appealed;
(iii) the filing of transcripts ordered under MCR 6.433, if the
defendant requested the transcripts within 6 months after entry of the
judgment or order to be appealed;
(iv) an order deciding a timely filed motion to withdraw plea under
MCR 6.310(C), motion for directed verdict under MCR 6.419(C), motion
to correct an invalid sentence under MCR 6.429(B), or motion for new
trial under MCR 6.431(A); or
(v) an order deciding a timely filed motion for reconsideration of an
order described in subrule (A)(2)(b)(iv).
A defendant relying on subrule (A)(2)(b) must provide a statement,
supported by relevant documentation, explaining how the application
meets the requirements of the subrule.
For purposes of subrules (A)(1) and (A)(2), “entry” means the date a
judgment or order is signed, or the date that data entry of the judgment
or order is accomplished in the issuing tribunal’s register of actions.
(3) In an appeal from an order terminating parental rights, an
application for leave to appeal must be filed within 63 days, as provided
by MCR 3.993(C)(2).If an application for leave to appeal in a criminal
case is received by the court after the expiration of the periods set forth
above or the period set forth in MCR 7.205(G), and if the appellant is an
inmate in the custody of the Michigan Department of Corrections and
has submitted the application as a pro se party, the application shall be
deemed presented for filing on the date of deposit of the application in
the outgoing mail at the correctional institution in which the inmate is
housed. Timely filing may be shown by a sworn statement, which must
set forth the date of deposit and state that first-class postage has been
prepaid. The exception applies to applications for leave to appeal from
decisions or orders rendered on or after March 1, 2010. This exception
also applies to an inmate housed in a penal institution in another state
or in a federal penal institution who seeks to appeal in a Michigan court.
(4) Delayed Application for Leave to Appeal.
(a) For appeals governed by subrule (A)(1), when an application is
not filed within the time provided by that subrule, a delayed application
for leave to appeal may be filed within 6 months of the entry of a
judgment or order described in that subrule.
 SPECIAL ORDERS 1237
(b) For appeals governed by subrule (A)(1) or (2), if the Court of
Appeals dismisses a claim of appeal for lack of jurisdiction, a delayed
application for leave to appeal may be filed within 21 days of the entry
of the dismissal order or an order denying reconsideration of that order,
provided that:
(i) the delayed application is taken from the same lower court
judgment or order as the claim of appeal, and
(ii) the claim of appeal was filed within the applicable time period in
subrule (A)(1) or (2).
A delayed application under this rule must contain a statement of
facts explaining the reasons for delay. The appellee may challenge the
claimed reasons in the answer. The court may consider the length of and
the reasons for delay in deciding whether to grant the delayed applica-
tion.
(5) In a criminal case, if an inmate in the custody of the Michigan
Department of Corrections, or in the custody of another state or federal
penal institution, submits an application or delayed application for
leave to appeal as a pro per party that is received by the court after the
expiration of the periods set forth in this rule, the application shall be
deemed presented for filing on the date of deposit of the application in
the outgoing mail at the correctional institution where the inmate is
housed. Timely filing may be shown by a sworn statement, which must
set forth the date of deposit and state that first-class postage has been
prepaid.
(6) In a criminal case, except as provided in subrule (4)(b), the
defendant may not file an application for leave to appeal from a
judgment of conviction and sentence if the defendant has previously
taken an appeal from that judgment by right or leave granted or has
sought leave to appeal that was denied.
(B)-(D) [Unchanged.]
(E) Decision.
(1) [Unchanged.]
(2) The court may grant or deny the application,; enter a final
decision,; grant other relief,; or request additional material from the
record; or require a certified concise statement of proceedings and facts
from the court, tribunal, or agency whose order is being appealed. The
clerk shall enter the court’s order and mail copies to the parties.
(3)-(4) [Unchanged.]
(F) Expedited DecisionEmergency Appeal. When a party requires a
decision on an application by a date certain, the party may file a motion
for immediate consideration of the application as provided in MCR
7.211(C)(6). When a motion for immediate consideration is filed, the
time for submission of the application and motion is governed by MCR
7.211(C)(6). In all other respects, submission, decision, and further
proceedings are as provided in subrule (E).
(1) If the order appealed requires acts or will have consequences
within 56 days of the date the application is filed, appellant shall alert
the clerk of that fact by prominent notice on the cover sheet or first page
of the application, including the date by which action is required.
1238 505 MICHIGAN REPORTS
(2) When an appellant requires a hearing on an application in less
than 21 days, the appellant shall file and serve a motion for immediate
consideration, concisely stating facts showing why an immediate hear-
ing is required. A notice of hearing of the application and motion or a
transcript is not required. An answer may be filed within the time the
court directs. If a copy of the application and of the motion for immediate
consideration are personally served under MCR 2.107(C)(1) or (2), the
application may be submitted to the court immediately on filing. If mail
service is used, it may not be submitted until the first Tuesday 7 days
after the date of service, unless the party served acknowledges receipt.
In all other respects, submission, decision, and further proceedings are
as provided in subrule (E).
(3) Where the trial court makes a decision on the admissibility of
evidence and the prosecutor or the defendant files an interlocutory
application for leave to appeal seeking to reverse that decision, the trial
court shall stay proceedings pending resolution of the application in the
Court of Appeals, unless the trial court makes findings that the evidence
is clearly cumulative or that an appeal is frivolous because legal
precedent is clearly against the party’s position. The appealing party
must pursue the appeal as expeditiously as practicable, and the Court of
Appeals shall consider the matter under the same priority as that
granted to an interlocutory criminal appeal under MCR 7.213(C)(1). If
the application for leave to appeal is filed by the prosecutor and the
defendant is incarcerated, the defendant may request that the trial
court reconsider whether pretrial release is appropriate.
(G) Late Appeal.
(1) When an appeal of right was not timely filed or was dismissed for
lack of jurisdiction, or when an application for leave was not timely filed,
the appellant may file an application as prescribed in subrule (B), file 5
copies of a statement of facts explaining the delay, and serve 1 copy on
all other parties. The answer may challenge the claimed reasons for
delay. The court may consider the length of and the reasons for delay in
deciding whether to grant the application. In all other respects, submis-
sion, decision, and further proceedings are as provided in subrule (E).
(2) In a criminal case, the defendant may not file an application for
leave to appeal from a judgment of conviction and sentence if the
defendant has previously taken an appeal from that judgment by right
or leave granted or has sought leave to appeal that was denied.
(3) Except as provided in subrules (G)(4)and (G)(5), leave to appeal
may not be granted if an application for leave to appeal is filed more
than 6 months after the later of:
(a) entry of a final judgment or other order that could have been the
subject of an appeal of right under MCR 7.203(A), but if a motion
described in MCR 7.204(A)(1)(b) was filed within the time prescribed in
that rule, then the 6 months are counted from the time of entry of the
order denying that motion; or
(b) entry of the order or judgment to be appealed from, but if a
motion for new trial, a motion for rehearing or reconsideration, or a
motion for other relief from the order or judgment appealed was filed
within the initial 21-day appeal period or within further time the trial
 SPECIAL ORDERS 1239
court has allowed for good cause during that 21-day period, then the 6
months are counted from the entry of the order deciding the motion.
(4) The limitation provided in subrule (G)(3) does not apply to an
application for leave to appeal by a criminal defendant if the defendant
files an application for leave to appeal within 21 days after the trial
court decides a motion for a new trial, for directed verdict of acquittal, to
withdraw a plea, or to correct an invalid sentence, if the motion was filed
within the time provided in MCR 6.310(C), MCR 6.419(C), MCR
6.429(B), and MCR 6.431(A), or if
(a) the defendant has filed a delayed request for the appointment of
counsel pursuant to MCR 6.425(G)(1) within the 6-month period,
(b) the defendant or defendant’s lawyer, if one is appointed, has
ordered the appropriate transcripts within 28 days of service of the
order granting or denying the delayed request for counsel or for
substitute counsel, unless the transcript has already been filed or has
been ordered by the court under MCR 6.425(G), and
(c) the application for leave to appeal is filed in accordance with the
provisions of this rule within 42 days after the filing of the transcript. If
the transcript was filed before the order appointing counsel, or substi-
tute counsel, or the order denying the appointment of counsel, the
42-day period runs from the date of that order.
A motion for rehearing or reconsideration of a motion mentioned in
subrule (G)(4) does not extend the time for filing an application for leave
to appeal, unless the motion for rehearing or reconsideration was itself
filed within 21 days after the trial court decides the motion mentioned
in subrule (G)(4), and the application for leave to appeal is filed within
21 days after the court decides the motion for rehearing or reconsidera-
tion.
A defendant who seeks to rely on one of the exceptions in subrule
(G)(4) must file with the application for leave to appeal an affidavit
stating the relevant docket entries, a copy of the register of actions of the
lower court, tribunal, or agency, or other documentation showing that
the application is filed within the time allowed.
(5) Notwithstanding the 6-month limitation period otherwise pro-
vided in subrule (G)(3), leave to appeal may be granted if a party’s claim
of appeal is dismissed for lack of jurisdiction within 21 days before the
expiration of the 6-month limitation period, or at any time after the
6-month limitation period has expired, and the party files a late
application for leave to appeal from the same lower court judgment or
order within 21 days of the dismissal of the claim of appeal or within 21
days of denial of a timely filed motion for reconsideration. A party filing
a late application in reliance on this provision must note the dismissal
of the prior claim of appeal in the statement of facts explaining the
delay.
(6) The time limit for late appeals from orders terminating parental
rights is 63 days, as provided by MCR 3.993(C)(2).
(H) Certified Concise Statement.
(1) When the Court of Appeals requires a certified concise statement
of proceedings and facts, the appellant shall, within 7 days after the
order requiring the certified concise statement is certified, serve on all
1240 505 MICHIGAN REPORTS
other parties a copy of a proposed concise statement of proceedings and
facts, describing the course of proceedings and the facts pertinent to the
issues raised in the application, and notice of hearing with the date,
time, and place for settlement of the concise statement.
(2) Hearing on the proposed concise statement must be within 14
days after the proposed concise statement and notice is served on the
other parties.
(3) Objections to the proposed concise statement must be filed in
writing with the trial court and served on the appellant and any other
appellee before the time set for settlement.
(4) The trial court shall promptly settle objections to the proposed
concise statement and may correct it or add matters of record necessary
to present the issues properly. When a court’s discretionary act is being
reviewed, the trial court may add to the statement its reasons for the
act. Within 7 days after the settlement hearing, the trial court shall
certify the proposed or a corrected concise statement of proceedings and
facts as fairly presenting the factual basis for the questions to be
reviewed as directed by the Court of Appeals. Immediately after
certification, the trial court shall send the certified concise statement to
the Court of Appeals clerk and serve a copy on each party.
Staff comment: The proposed amendments of MCR 6.310, 6.429,
6.431, 6.509, and 7.205 and proposed addition of MCR 6.126 would
clarify and simplify the rules regarding procedure in criminal appellate
matters.
The staff comment is not an authoritative construction by the Court.
In addition, adoption of an amendment in no way reflects a substantive
determination by this Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by July 1, 2020, at P.O.
Box 30052, Lansing, MI 48909, or [email protected]. When
filing a comment, please refer to ADM File No. 2019-27. Your comments
and the comments of others will be posted under the chapter affected
by this proposal at [http://courts.mi.gov/courts/michigansupremecourt/
rules/court-rules-admin-matters/pages/default.aspx].

Order Entered March 19, 2020:

PROPOSED AMENDMENTS OF MCR 7.212 AND MCR 7.312.

On order of the Court, this is to advise that the Court is considering
amendments of Rules 7.212 and 7.312 of the Michigan Court Rules.
Before determining whether the proposal should be adopted, changed
before adoption, or rejected, this notice is given to afford interested
persons the opportunity to comment on the form or the merits of the
 SPECIAL ORDERS 1241
proposal or to suggest alternatives. The Court welcomes the views of all.
This matter also will be considered at a public hearing. The notices and
agendas for public hearings are posted at [http://courts.mi.gov/courts/
michigansupremecourt/rules/pages/default.aspx].
Publication of this proposal does not mean that the Court will issue
an order on the subject, nor does it imply probable adoption of the
proposal in its present form.

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 7.212. BRIEFS.

(A)-(I) [Unchanged.]
(J) Appendix.
(1) In all civil cases (except those pertaining to child protection
proceedings, including termination of parental rights, and non-criminal
delinquency proceedings under chapter XIIA of the Probate Code and
adoptions under chapter X), and in all appeals from administrative
agencies, except those described in section (J)(5) of this rule, the
appellant shall file and serve an appendix. The appellant’s appendix
shall contain a table of contents and copies of the following documents
if they exist:Requirements. Except as provided in subrules (1)(a)-(f) of
this rule, the appellant must file an individual or joint appendix with the
appellant’s brief. An appellee may file an appendix with the appellee’s
brief if the appellant’s appendix does not contain all the information set
forth in subrule (3) of this rule. The appellee’s appendix should not
contain any of the documents contained in the appellant’s appendix
except when including additional pages to provide a more complete
context, but should only contain additional information described in
subrule (3) that is relevant and necessary to the determination of the
issues on appeal. To avoid duplication in cases with more than one
appellant or appellee, the parties are encouraged to submit a joint
appendix pursuant to subsection (4) rather than separate appendixes.
An appendix is not required in appeals from:
(a) Criminal proceedings.
(b) Child protective proceedings.
(c) Delinquency proceedings under chapter XIIA of the Probate
Code.
(d) Adoption proceedings under chapter X.
(e) Involuntary mental health treatment proceedings under the
Mental Health Code.
(f) The Michigan Public Service Commission where the record is
available on the Commission’s e-docket, or the Michigan Tax Tribunal
where the record is available on the Tribunal’s tax docket lookup page.
In those cases, the parties’ briefs shall cite to the document number and
relevant pages in the electronic record.
(2) Form. The appendix must include a cover page or pages with the
case caption that sets forth the parties’ names and their designations
(e.g., plaintiff-appellant), along with the appellate court and trial court
1242 505 MICHIGAN REPORTS
or tribunal docket numbers. The cover page(s) must also state whether
the appendix is an “Appellant’s Appendix,” “Appellee’s Appendix,” or
“Joint Appendix.” Following the cover page(s), the appendix must
include a table of contents that identifies each document with reason-
able specificity and indicates both the appendix number or letter and the
page number on which the first page of the document appears in the
appendix. An appendix must be numbered sequentially in a prominent
location at the bottoms of the pages. When the appendix is composed of
multiple volumes, pagination must continue from one volume to the
next. For multiple appendix volumes, each volume must include a cover
page and table of contents, and the first volume must contain a complete
table of contents referencing all volumes of the appendix. Each separate
document in the appendix must be preceded by a title page that
identifies the appendix number or letter and the title of the document.
(a) For an appendix filed in paper form, one signed copy that is
separately bound from the brief shall be filed. The binding method
should allow the easy dismantling of the appendix for scanning.
(b) For an appendix filed electronically:
(i) The appendix must be separate from the electronically-filed brief
and should be transmitted as a single PDF document unless the file size
is too large to do so, in which case the appendix should be divided into
separate volumes.
(ii) The appendix must be text searchable and include bookmarks for
each document in the appendix and for important information or
sections within the documents.
(iii) The table of contents should link to the documents contained in
the appendix or in that volume of the appendix.
(3) Content. The appendix must include copies of the following
documents if they exist:
(a) The trial court or tribunal judgment or order(s) appealed from,
including any written opinion, memorandum, findings of fact and
conclusions of law stated on the record, in conjunction with the judg-
ment or order(s) appealed from.;
(b) A copy of tThe trial court or tribunal register of actionsdocket
sheet;.
(c) The relevant pages of any transcripts cited in support of the
argumentappellant’s position on appeal. Whenre appropriate, pages
that precede or followthe appellant may attach pages preceding and
succeeding the cited page should be includedcited if helpful to provide
context to the citation. Submitting entire transcripts is discouraged
unless necessary for the understanding of an argument. If a complete
trial, deposition, or administrative transcript is filed, anthe index to
such transcript must be included. Transcripts must contain only a single
transcript page per document page, not multiple pages combined on a
single document page.Only noncompressed (one sheet to a page) tran-
scripts may be filed;
(d) WhenIf a jury instruction is challenged, the languagea copy of
the instruction, any portion of the transcript containing a discussion of
the instruction, and any relevant request for the instruction.; and
 SPECIAL ORDERS 1243
(e) Any other exhibit, pleading, or other evidence that was submit-
ted to the trial court and that is relevant and necessary for the Court to
consider in deciding the appeal. Briefs submitted in the trial court are
not required to be included in the appendix unless they pertain to a
contested preservation issue.
For material that is subject to an existing protective order, or for
evidence that is not subject to such an order, but which contains
information that is confidential or privileged, the procedures of MCR
7.211(C)(9) apply.
(4) Joint Appendix.
(a) The parties may stipulate to using a joint appendix, so desig-
nated, containing the matters that are deemed necessary to fairly decide
the questions involved. A joint appendix shall meet the requirements of
subrules (J)(2) and (3) and shall be included with the initial appellant’s
brief or, for a joint appendix of multiple appellees, with the first
appellee’s brief to be filed.
(b) The stipulation to use a joint appendix may specify that any
party may file, as a supplemental appendix, additional portions of the
record not covered by the joint appendix.
(2) The appellee shall file and serve an appendix with its responsive
brief only if the appellant’s appendix does not contain all the informa-
tion set forth in section (J)(1) of this rule. The appellee’s appendix shall
not contain any of the documents contained in the appellant’s appendix,
but shall only contain additional information described in section (J)(1)
that is relevant and necessary to the determination of the issues raised
in the appeal.
(3) Each volume of any appendix shall contain no more than 250
pages. The table of contents shall identify each document with reason-
able definiteness, and indicate the volume and page of the appendix
where the document is located. The cover to the appendix shall indicate
in bold type whether it is the “Appellant’s Appendix” or “Appellee’s
Appendix.”
(a) For a paper appendix, each document shall also be tabbed. A
paper appendix shall be bound separate from the brief. Five copies of the
paper appendix shall be filed with the court.
(b) If an appendix is to be filed electronically, it must be filed as an
independent .pdf file or a series of independent .pdf files. The table of
contents for electronically filed appendixes shall contain bookmarks,
linking to each document in the appendix.
(4) In cases involving more than one appellant or appellee, including
cases consolidated for appeal, to avoid duplication each side shall, where
practicable, file a joint rather than separate appendixes.
(5) This subsection does not apply to appeals arising from the
Michigan Public Service Commission (in which the record is available on
the Commission’s e-docket) or the Michigan Tax Tribunal (in which the
record is available on the Tribunal’s tax docket lookup page). In those
cases, the parties shall cite to the document number and relevant pages.
RULE 7.312. BRIEFS AND APPENDIXES IN CALENDAR CASES.
(A)-(C) [Unchanged.]
1244 505 MICHIGAN REPORTS
(D) Appendixes. Unless the Court orders otherwise, briefs in a
calendar case or in a case being argued on an application must be filed
with an individual or joint appendix that conforms with the require-
ments, form, and content of MCR 7.212(J), except that the exclusions
listed in MCR 7.212(J)(1)(a)-(f) do not apply to the Supreme Court. The
individual or joint appendix must also include a copy of the Court of
Appeals opinion or order being appealed but need not include the briefs
submitted in the Court of Appeals unless they pertain to a contested
preservation issue.
(1) Form. Appendixes must be prepared in conformity with MCR
7.212(B), and shall be similarly endorsed as briefs under MCR 7.312(C)
but designated as an appendix. Appendixes must be printed on both
sides of the page and, if they encompass more than 20 sheets of paper,
must also be submitted on electronic storage media in a file format that
can be opened, read, and printed by the Court.
(2) Appellant’s Appendix. An appendix filed by the appellant must
be entitled “Appellant’s Appendix,” must be separately bound, and
numbered separately from the brief with the letter “a” following each
page number (e.g., 1a, 2a, 3a). Each page of the appendix must include
a header that briefly describes the character of the document, such as
the names of witnesses for testimonial evidence or the nature of the
documents for record evidence. The appendix must include a table of
contents and, when applicable, must contain:
(a) the relevant docket entries of the trial court or tribunal and the
Court of Appeals arranged in a single column;
(b) the trial court judgment, order, or decision in question and the
Court of Appeals opinion or order being appealed;
(c) any relevant finding or opinion of the trial court;
(d) any relevant portions of the pleadings or other parts of the
record; and
(e) any relevant portions of the transcript, including the complete
jury instructions if an issue is raised regarding a jury instruction.
The items listed in subrules (D)(2)(a) to (e) must be presented in
chronological order.
(3) Joint Appendix.
(a) The parties may stipulate to use a joint appendix, so designated,
containing the matters that are deemed necessary to fairly decide the
questions involved. A joint appendix shall meet the requirements of
subrule (D)(2) and shall be separately bound and served with the
appellant’s brief.
(b) The stipulation to use a joint appendix may provide that either
party may file, as a supplemental appendix, any additional portion of
the record not covered by the joint appendix.
(4) Appellee’s Appendix. An appendix, entitled “Appellee’s Appen-
dix,” may be filed. The appellee’s appendix must comply with the
provisions of subrule (D)(2) and be numbered separately from the brief
with the letter “b” following each page number (e.g., 1b, 2b, 3b).
Materials included in the appellant’s appendix or joint appendix may
not be repeated in the appellee’s appendix, except to clarify the subject
matter involved.
 SPECIAL ORDERS 1245
(E)-(J) [Unchanged.]
Staff comment: The proposed amendments of MCR 7.212 and 7.312
would allow practitioners to efficiently produce an appendix for all
appellate purposes by making the appendix rule consistent within the
Court of Appeals and Supreme Court.
The staff comment is not an authoritative construction by the Court.
In addition, adoption of an amendment in no way reflects a substantive
determination by this Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by July 1, 2020, at P.O.
Box 30052, Lansing, MI 48909, or [email protected]. When
filing a comment, please refer to ADM File No. 2019-29. Your comments
and the comments of others will be posted under the chapter affected
by this proposal at [http://courts.mi.gov/courts/michigansupremecourt/
rules/court-rules-admin-matters/pages/default.aspx].

Order Entered March 19, 2020:

PROPOSED AMENDMENT OF MCR 7.216.

On order of the Court, this is to advise that the Court is considering an
amendment of Rule 7.216 of the Michigan Court Rules. Before determin-
ing whether the proposal should be adopted, changed before adoption, or
rejected, this notice is given to afford interested persons the opportunity
to comment on the form or the merits of the proposal or to suggest
alternatives. The Court welcomes the views of all. This matter also will be
considered at a public hearing. The notices and agendas for public
hearings are posted at [http://courts.mi.gov/courts/michigansupreme
court/rules/pages/default.aspx].
Publication of this proposal does not mean that the Court will issue
an order on the subject, nor does it imply probable adoption of the
proposal in its present form.

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 7.216. MISCELLANEOUS RELIEF.

(A)-(B) [Unchanged.]
(C) Vexatious Proceedings; Vexatious Litigator.
(1)-(2) [Unchanged.]
(3) Vexatious Litigator. If a party habitually, persistently, and with-
out reasonable cause engages in vexatious conduct under subrule (C)(1),
the Court may, on its own initiative or on motion of another party, find
1246 505 MICHIGAN REPORTS
the party to be a vexatious litigator and impose filing restrictions on the
party. The restrictions may include prohibiting the party from continu-
ing or instituting legal proceedings in the Court without first obtaining
leave, prohibiting the filing of actions in the Court without the filing fee
or security for costs required by MCR 7.209 or MCR 7.219, or other
restriction the Court deems just.
Staff comment: The proposed amendment of MCR 7.216 would
enable the Court of Appeals to impose filing restrictions on a vexatious
litigator, similar to the Supreme Court’s rule (MCR 7.316).
The staff comment is not an authoritative construction by the Court.
In addition, adoption of an amendment in no way reflects a substantive
determination by this Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by July 1, 2020, at P.O.
Box 30052, Lansing, MI 48909, or [email protected]. When
filing a comment, please refer to ADM File No. 2019-31. Your comments
and the comments of others will be posted under the chapter affected
by this proposal at [http://courts.mi.gov/courts/michigansupremecourt/
rules/court-rules-admin-matters/pages/default.aspx].

Order Entered March 19, 2020:

PROPOSED ADMINISTRATIVE ORDER REGARDING PROFESSIONALISM PRINCIPLES FOR
LAWYERS AND JUDGES.
On order of the Court, this is to advise that the Court is considering
the adoption of an Administrative Order regarding professionalism prin-
ciples for lawyers and judges. Before determining whether the proposal
should be adopted, changed before adoption, or rejected, this notice is
given to afford interested persons the opportunity to comment on the form
or the merits of the proposal or to suggest alternatives. The Court
welcomes the views of all. This matter also will be considered at a public
hearing. The notices and agendas for public hearings are posted at [http://
courts.mi.gov/courts/michigansupremecourt/rules/pages/default.aspx].
Publication of this proposal does not mean that the Court will issue
an order on the subject, nor does it imply probable adoption of the
proposal in its present form.

Administrative Order No. 2020-XX —

Professionalism Principles for Lawyers and Judges
In fulfilling our professional responsibilities, we, as attorneys and
officers of the court, must remain mindful of our obligations to the
administration of justice and its truth-seeking process designed to effi-
 SPECIAL ORDERS 1247
ciently resolve disputes in a rational and peaceful manner. In serving in
our professional capacity, we adhere to these principles of professional-
ism:
1. We are civil in our interactions with all people involved in a legal
matter or the justice system.
2. We treat all people involved in a legal matter or the justice system
with respect.
3. We cooperate with each other within the bounds of our justice
system.
4. We extend professional courtesy to each other.
5. We do not engage in, or tolerate, conduct that may be perceived as
rude, abrasive, hostile, or obstructive.
6. We do not disparage or attack other persons involved in the
justice system, or employ hostile, demeaning, or humiliating words in
written or oral communications or opinions.
7. We do not exhibit, act upon, or manifest bias against any person
involved in a legal matter or the justice system.
8. We treat all people involved in a legal matter or the justice system
fairly, regardless of their personal characteristics or viewpoints.
9. We act with honesty and integrity in our interactions with all
people involved in a legal matter or the justice system and honor
promises and agreements fairly reached.
10. We act in good faith and advance only those positions just under
the facts and law.

COMMENTARY ON PROFESSIONALISM
PRINCIPLES FOR LAWYERS AND JUDGES
Rule 1 of the Rules Concerning the State Bar provides, in part, that
the “State Bar of Michigan shall . . . aid in promoting improvements in
the administration of justice and advancements in jurisprudence, in
improving relations between the legal profession and the public, and in
promoting the interests of the legal profession in this State.” To achieve
these lofty goals, we have established ten principles of professionalism
(“Principles”) as guidance to attorneys in the practice of law and judges
during the adjudicative process on acceptable conduct in the practice of
law. The Principles are not intended to form the basis for discipline,
professional negligence, or sanctions, or to replace the Michigan Rules of
Professional Conduct, the Michigan Code of Judicial Conduct, or the
Michigan Court Rules, although many of the Principles are derived from
them. Nevertheless, lawyers and judges together should exhibit the
highest levels of professionalism to preserve and advance our noble
profession, and to serve as exemplars to the public we serve.
The Principles are intertwined, but each Principle deserves to be
singled out because of its individual importance to professionalism.
Civility is the foundation for professionalism, and it requires respect,
cooperation, courtesy, fairness, honesty, good faith, and integrity. Nor
can civility exist in the presence of personal attacks, bias, or prejudice.
A lawyer is responsible to zealously represent a client, but zealous
representation does not include unprofessional conduct. Unprofessional
1248 505 MICHIGAN REPORTS
conduct increases the cost of transactional matters and litigation and
wastes judicial resources, with no benefit to the client and to the
detriment of the legal profession, and most important, of our justice
system.
Besides adhering to the Principles, lawyers and judges work to
achieve balance in their lives knowing that personal health and well-
ness are necessary for the best treatment of others. Lawyers and judges
are also encouraged to devote time to reflect on their behaviors and
interactions with others to grow and abide by the Principles.
The Principles offer general guidance in the practice of law for
lawyers and judges, both inside and outside the courtroom, including in
alternative dispute resolution proceedings. These examples provide a
better understanding of the Principles; they are illustrative and not
meant to encompass all specific conduct:
1. Lawyers
• We allow opposing counsel to make their arguments without
interruption, and we fairly consider their arguments.
• We promptly respond to communications from clients and other
attorneys.
• We confer early and in good faith to discuss the possibility of
settlement, but not as a means to adjourn discovery or delay trial.
• We accurately represent, characterize, quote and cite facts and
authorities in our written and oral communications.
• We draft documents that accurately reflect the parties’ under-
standings, the court’s rulings, and the facts.
• We do not engage in ex parte communications unless authorized
by law.
• We only make proper objections grounded in rules of evidence and
procedure.
• We are punctual and arrive sufficiently before, and are prepared
for, all proceedings.
• We are punctual in our professional interactions with clients,
attorneys and others outside of the court.
• We are considerate of the time schedules of lawyers, parties, and
witnesses.
• We are reasonable and act in good faith in scheduling hearings,
conferences, depositions, and other proceedings.
• We are respectful of the personal emergencies and exigencies of
litigation or practice in scheduling.
• We attempt to verify the availability of necessary participants
and witnesses before dates for hearings or trial are set, or, if that
is not feasible, immediately after such dates have been set.
• We give notice of any scheduling changes or cancellations at the
earliest practicable time.
• We only make good faith requests for time extensions.
• We agree to good faith, reasonable requests for time extensions
and waivers of formal procedure if they are not prejudicial to the
interests of our clients.
 SPECIAL ORDERS 1249
• We act in good faith in deciding when to file or serve motions and
pleadings.
• We only make discovery requests reasonable in scope and nature.
• We respond promptly to reasonable discovery requests by the
opposing party.
• We only engage in conduct during a deposition that is allowed in
the presence of a judicial officer and is appropriate under court or
evidentiary rules.
• We readily stipulate to undisputed facts.
2. Judges
• We are patient and respectful of a party’s right to be heard and
afford this opportunity.
• We do not condone a lawyer being uncivil to another lawyer or
others, and we call such conduct to the attention of the offending
lawyer on our own initiative.
• We see as paramount our obligations to the administration of
justice to facilitate the resolution of the matters before us consis-
tent with the law and in a civil manner.
• We endeavor to work with other judges to foster cooperation in
our mutual goal of enhancing the administration of justice.
• We are courteous, respectful, and civil in opinions, ever mindful
that we are the ultimate measure of the public’s faith and
confidence in our system of justice.
• We are punctual in convening the business of the court.
• We are considerate of the time schedules of lawyers, parties, and
witnesses.
• We are respectful of the personal emergencies and exigencies of
litigation or practice in scheduling.
• We assure that judicial proceedings are conducted with dignity,
decorum, and courtesy.
• We maintain control of the proceedings, recognizing that we have
both the obligation and authority to ensure that all proceedings
are conducted in a civil manner.
• We do not engage in practices and procedures that needlessly
increase litigation expense or contribute to unnecessary delay.
• We recognize that a lawyer has the right and duty to present a
cause fully and properly and that a litigant has the right to a fair
and impartial hearing. Within the practical limits of time, we
allow lawyers to present proper arguments and to make an
accurate record.
• We make all reasonable efforts to decide promptly all matters
presented to us for decision.
• We assure that people with disabilities interacting with the court
as lawyers, parties, witnesses, and jurors know the court’s ability
to make reasonable accommodations.
• We ensure that self-represented litigants have equal access to the
legal system while still holding them to the same legal standards
as a litigant represented by counsel.
1250 505 MICHIGAN REPORTS
• We ensure that our staff treats litigants, attorneys, and those
persons interacting with the justice system with dignity and
respect.
• We do not permit ex parte communications unless authorized by
law.
Staff Comment: This administrative order would list various “Pro-
fessionalism Principles” for lawyers and judges as submitted by the
State Bar of Michigan.
The staff comment is not an authoritative construction by the Court.
In addition, adoption of a new rule or amendment in no way reflects a
substantive determination by this Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by July 1, 2020, at P.O.
Box 30052, Lansing, MI 48909, or [email protected]. When
filing a comment, please refer to ADM File No. 2019-32. Your comments
and the comments of others will be posted under the chapter affected
by this proposal at [http://courts.mi.gov/courts/michigansupremecourt/
rules/court-rules-admin-matters/pages/default.aspx].

Order Entered March 19, 2020:

PROPOSED ADMINISTRATIVE ORDER REGARDING ELECTION-RELATED LITIGATION.
On order of the Court, this is to advise that the Court is considering
the adoption of an Administrative Order regarding election-related liti-
gation. Before determining whether the proposal should be adopted,
changed before adoption, or rejected, this notice is given to afford
interested persons the opportunity to comment on the form or the merits
of the proposal or to suggest alternatives. The Court welcomes the views
of all. This matter also will be considered at a public hearing. The notices
and agendas for public hearings are posted at [http://courts.mi.gov/
courts/michigansupremecourt/rules/pages/default.aspx].
Publication of this proposal does not mean that the Court will issue
an order on the subject, nor does it imply probable adoption of the
proposal in its present form.

Administrative Order No. 2020-XX —

Election-Related Litigation Procedures
In an effort to promote the efficient and timely disposition of
election-related litigation, the Court adopts the following requirements
and procedural rules.
1. Court proceedings regarding an election matter lawsuit may not
be instituted and orders may not be issued except upon a written
 SPECIAL ORDERS 1251
complaint filed pursuant to the pertinent MCR provision. A full and
complete record of the proceedings must be kept.
2. Upon the filing of a complaint regarding an election matter, the
following persons must be notified of the lawsuit as soon as practicable:
(a) Supreme Court Clerk
(b) State Director of Elections
(c) Attorney General Civil Litigation, Employment, & Elections
Division (if the complaint is against the state or one of its subdivisions).
The State Court Administrator will circulate a memo before each
election that identifies the names and contact information for the
individuals and offices listed above.
3. The chief judge or chief judge’s designee of the court in which the
election matter lawsuit is filed must provide the following information to
the Supreme Court Clerk:
(a) Case number and names of parties
(b) Name of assigned judge and the telephone number where he or
she can be reached
(c) Brief statement of the issues, and
(d) Brief statement of the case status.
4. Upon receiving notice of the lawsuit, the Supreme Court Clerk
will notify the Chief Justice of the Supreme Court so the Court can
decide whether the trial court should certify the controlling question(s)
in conformity with the procedures set forth in MCR 7.308(A). The trial
court may take preliminary action to move the case forward, such as
establishing a briefing schedule or conducting a hearing on the matter.
But an order or judgment granting or denying the relief requested may
not enter until the Supreme Court Clerk notifies the trial court of the
Court’s decision regarding certification. An electronic copy of the final
order or judgment, or an order granting a stay or injunctive relief, must
be transmitted to the Supreme Court Clerk at the email address
provided in the memo referenced above.
5. On or before the date of an election, the Court of Appeals will
publish on the home page of its website information for contacting that
court’s clerk’s office after business hours and the steps required of a
party who might wish to seek emergency appellate relief.
Staff Comment: This administrative order would provide require-
ments and procedural rules to promote the efficient and timely disposi-
tion of election-related litigation.
The staff comment is not an authoritative construction by the Court.
In addition, adoption of a new rule or amendment in no way reflects a
substantive determination by this Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by July 1, 2020, at P.O.
Box 30052, Lansing, MI 48909, or [email protected]. When
filing a comment, please refer to ADM File No. 2020-03. Your comments
1252 505 MICHIGAN REPORTS
and the comments of others will be posted under the chapter affected by
this proposal at [http://courts.mi.gov/courts/michigansupremecourt/rules
/court-rules-admin-matters/pages/default.aspx].

Order Entered March 19, 2020:

PROPOSED AMENDMENTS OF MCR 2.403, 2.404, AND 2.405.

On order of the Court, this is to advise that the Court is considering
amendments of Rules 2.403, 2.404 and 2.405 of the Michigan Court Rules.
Before determining whether the proposal should be adopted, changed
before adoption, or rejected, this notice is given to afford interested
persons the opportunity to comment on the form or the merits of the
proposal or to suggest alternatives. The Court welcomes the views of all.
This matter also will be considered at a public hearing. The notices and
agendas for public hearings are posted at [http://courts.mi.gov/courts/
michigansupremecourt/rules/pages/default.aspx].
Publication of this proposal does not mean that the Court will issue
an order on the subject, nor does it imply probable adoption of the
proposal in its present form.

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 2.403. CASE EVALUATION.

(A) Scope and Applicability of Rule.
(1) A court may submit to case evaluation any civil action in which
the relief sought is primarily money damages or division of property
unless the parties stipulate to an ADR process as outlined in subsections
(A)(2)-(3) of this rule. Parties who participate in a stipulated ADR
process approved by the court may not subsequently be ordered to
participate in case evaluation without their written consent.
(2) Case evaluation of tort cases filed in circuit court is mandatory
beginning with actions filed after the effective dates of Chapters 49 and
49A of the Revised Judicature Act, as added by 1986 PA 178.In a case in
which a discovery plan has been filed with the court under MCR
2.401(C), an included stipulation to use an ADR process other than case
evaluation must:
(a) identify the ADR process to be used;
(b) describe its timing in relation to other discovery provisions; and,
(c) be completed no later than 60 days after the close of discovery.
(3) In a case in which no discovery plan has been filed with the court,
a stipulated order to use an ADR process other than case evaluation
must:
(a) be submitted to the court within 120 days of the first responsive
pleading;
 SPECIAL ORDERS 1253
(b) identify the ADR process to be used and its timing in relationship
to the deadlines for completion of disclosure and discovery; and,
(c) be completed no later than 60 days after the close of discovery.
(3)-(4) [Renumbered (4)-(5) but otherwise unchanged.]
(B) Selection of Cases.
(1) The judge to whom an action is assigned or the chief judge may
select it for case evaluation by written order after the filing of the
answer
(a)-(b) [Unchanged.]
(c) if the parties have not submitted an ADR plan under subsection
(A)on the judge’s own initiative.
(2) [Unchanged.]
(C)-(H) [Unchanged.]
(I) Submission of Summary and Supporting Documents.
(1) Unless otherwise provided in the notice of hearing, at least 714
days before the hearing, each party shall
(a)-(b) [Unchanged.]
(2) Each failure to timely file and serve the materials identified in
subrule (1) and each subsequent filing of supplemental materials within
714 days of the hearing, subjects the offending attorney or party to a
$150 penalty to be paid in the manner specified in the notice of the case
evaluation hearing. Filing and serving the materials identified in
subrule (1) within 24 hours of the hearing subjects the offending
attorney or party to an additional $150 penaltyAn offending attorney
shall not charge the penalty to the client, unless the client agreed in
writing to be responsible for the penalty.
(3) [Unchanged.]
(J) [Unchanged.]
(K) Decision.
(1) Within 714 days after the hearing, the panel will make an
evaluation and submit the evaluation to the ADR clerk. If an evaluation
is made immediately following the hearing, the panel will provide a copy
to the attorney for each party of its evaluation in writing. If an
evaluation is not made immediately following the hearing, the evalua-
tion must be served by the ADR clerk on each party within 14 days after
the hearing. If an award is not unanimous, the evaluation must so
indicate.
(2)-(5) [Unchanged.]
(L)-(N) [Unchanged.]
(O) Rejecting Party’s Liability for Costs.
(1) If a party has rejected an evaluation and the action proceeds to
verdict, that party must pay the opposing party’s actual costs unless the
verdict is more favorable to the rejecting party than the case evaluation.
However, if the opposing party has also rejected the evaluation, a party
is entitled to costs only if the verdict is more favorable to that party than
the case evaluation.
(2) For the purpose of this rule “verdict” includes,
(a) a jury verdict,
1254 505 MICHIGAN REPORTS
(b) a judgment by the court after a nonjury trial,
(c) a judgment entered as a result of a ruling on a motion after
rejection of the case evaluation.
(3) For the purpose of subrule (O)(1), a verdict must be adjusted by
adding to it assessable costs and interest on the amount of the verdict
from the filing of the complaint to the date of the case evaluation, and,
if applicable, by making the adjustment of future damages as provided
by MCL 600.6306. After this adjustment, the verdict is considered more
favorable to a defendant if it is more than 10 percent below the
evaluation, and is considered more favorable to the plaintiff if it is more
than 10 percent above the evaluation. If the evaluation was zero, a
verdict finding that a defendant is not liable to the plaintiff shall be
deemed more favorable to the defendant.
(4) In cases involving multiple parties, the following rules apply:
(a) Except as provided in subrule (O)(4)(b), in determining whether
the verdict is more favorable to a party than the case evaluation, the
court shall consider only the amount of the evaluation and verdict as to
the particular pair of parties, rather than the aggregate evaluation or
verdict as to all parties. However, costs may not be imposed on a plaintiff
who obtains an aggregate verdict more favorable to the plaintiff than
the aggregate evaluation.
(b) If the verdict against more than one defendant is based on their
joint and several liability, the plaintiff may not recover costs unless the
verdict is more favorable to the plaintiff than the total case evaluation
as to those defendants, and a defendant may not recover costs unless the
verdict is more favorable to that defendant than the case evaluation as
to that defendant.
(c) Except as provided by subrule (O)(10), in a personal injury action,
for the purpose of subrule (O)(1), the verdict against a particular
defendant shall not be adjusted by applying that defendant’s proportion
of fault as determined under MCL 600.6304(1)-(2).
(5) If the verdict awards equitable relief, costs may be awarded if the
court determines that
(a) taking into account both monetary relief (adjusted as provided in
subrule [O][3]) and equitable relief, the verdict is not more favorable to
the rejecting party than the evaluation, or, in situations where both
parties have rejected the evaluation, the verdict in favor of the party
seeking costs is more favorable than the case evaluation, and
(b) it is fair to award costs under all of the circumstances.
(6) For the purpose of this rule, actual costs are
(a) those costs taxable in any civil action, and
(b) a reasonable attorney fee based on a reasonable hourly or daily
rate as determined by the trial judge for services necessitated by the
rejection of the case evaluation, which may include legal services
provided by attorneys representing themselves or the entity for whom
they work, including the time and labor of any legal assistant as defined
by MCR 2.626.
 SPECIAL ORDERS 1255
For the purpose of determining taxable costs under this subrule and
under MCR 2.625, the party entitled to recover actual costs under this
rule shall be considered the prevailing party.
(7) Costs shall not be awarded if the case evaluation award was not
unanimous. If case evaluation results in a nonunanimous award, a case
may be ordered to a subsequent case evaluation hearing conducted
without reference to the prior case evaluation award, or other alterna-
tive dispute resolution processes, at the expense of the parties, pursuant
to MCR 2.410(C)(1).
(8) A request for costs under this subrule must be filed and served
within 28 days after the entry of the judgment or entry of an order
denying a timely motion
(i) for a new trial,
(ii) to set aside the judgment, or
(iii) for rehearing or reconsideration.
(9) In an action under MCL 436.1801, if the plaintiff rejects the
award against the minor or alleged intoxicated person, or is deemed to
have rejected such an award under subrule (L)(3)(c), the court shall not
award costs against the plaintiff in favor of the minor or alleged
intoxicated person unless it finds that the rejection was not motivated
by the need to comply with MCL 436.1801(5).
(10) For the purpose of subrule (O)(1), in an action filed on or after
March 28, 1996, and based on tort or another legal theory seeking
damages for personal injury, property damage, or wrongful death, a
verdict awarding damages shall be adjusted for relative fault as pro-
vided by MCL 600.6304.
(11) If the “verdict” is the result of a motion as provided by subrule
(O)(2)(c), the court may, in the interest of justice, refuse to award actual
costs.
RULE 2.404. SELECTION OF CASE EVALUATION PANELS.
(A) [Unchanged.]
(B) Lists of Case Evaluators.
(1)-(3) [Unchanged.]
(4) Specialized Lists. If the number and qualifications of available
case evaluators makes it practicable to do so, the ADR clerk shall
maintain
(a) [Unchanged.]
(b) where appropriate for the type of cases, separate sublists of case
evaluators who primarily represent plaintiffs, primarily represent de-
fendants, and neutral case evaluators whose practices are not identifi-
able as representing primarily plaintiffs or defendants. Neutral evalu-
ators may be selected on the basis of the applicant’s representing both
plaintiffs and defendants, or having served as a neutral alternative
dispute resolution provider, for a period of up to 15 years prior to an
application to serve as a case evaluator.
(5)-(8) [Unchanged.]
(C)-(D) [Unchanged.]
RULE 2.405. OFFERS TO STIPULATE TO ENTRY OF JUDGMENT.
(A) Definitions. As used in this rule:
1256 505 MICHIGAN REPORTS
(1)-(3) [Unchanged.]
(4) “Verdict” includes,
(a)-(b) [Unchanged.]
(c) a judgment entered as a result of a ruling on a motion after
rejection of the offer of judgment, including a motion entering judgment
on an arbitration award.
(5) [Unchanged.]
(6) “Actual costs” means the costs and fees taxable in a civil action
and a reasonable attorney fee, dating to the rejection of the prevailing
party’s last offer or counteroffer, for services necessitated by the failure
to stipulate to the entry of judgment.
(B)-(C) [Unchanged.]
(D) Imposition of Costs Following Rejection of Offer. If an offer is
rejected, costs are payable as follows:
(1)-(2) [Unchanged.]
(3) The court shall determine the actual costs incurred. The court
may, in the interest of justice, refuse to award an attorney fee under this
rule. Interest of justice exceptions may apply, but are not limited to:
(i) cases involving offers that are token or de minimis in the context
of the case; or
(ii) cases involving an issue of first impression or an issue of public
interest.
(4)-(6) [Unchanged.]
(E) This rule does not apply to class action cases filed under MCR
3.501.Relationship to Case Evaluation. Costs may not be awarded under
this rule in a case that has been submitted to case evaluation under
MCR 2.403 unless the case evaluation award was not unanimous.
Staff Comment: The proposed amendments were in large part
produced by a workgroup convened by the State Court Administrative
Office to review and offer recommendations about case evaluation.
The staff comment is not an authoritative construction by the Court.
In addition, adoption of a new rule or amendment in no way reflects a
substantive determination by this Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the amendment may be sent to the
Supreme Court Clerk in writing or electronically by July 1, 2020, at P.O.
Box 30052, Lansing, MI 48909, or [email protected]. When
filing a comment, please refer to ADM File No. 2020-06. Your comments
and the comments of others will be posted under the chapter affected
by this proposal at [http://courts.mi.gov/courts/michigansupremecourt/
rules/court-rules-admin-matters/pages/default.aspx].
 SPECIAL ORDERS 1257
Order Entered April 8, 2020:

PROPOSED AMENDMENT OF RULE 16 AND PROPOSED ADOPTION OF RULE 20 OF

RULES CONCERNING THE STATE BAR OF MICHIGAN.
On order of the Court, this is to advise that the Court is considering
an amendment of Rule 16 and a proposed addition of Rule 20 of the
Rules Concerning the State Bar of Michigan. Before determining
whether the proposal should be adopted, changed before adoption, or
rejected, this notice is given to afford interested persons the opportunity
to comment on the form or the merits of the proposal or to suggest
alternatives. The Court welcomes the views of all. This matter also will
be considered at a public hearing. The notices and agendas for public
hearings are posted at [http://courts.mi.gov/courts/michigansupreme
court/rules/pages/default.aspx].
Publication of this proposal does not mean that the Court will issue
an order on the subject, nor does it imply probable adoption of the
proposal in its present form.

[Rule 20 is a new rule and no underlining is included; otherwise,

additions to the text are indicated in underlining and deleted text
is shown by strikeover.]

RULE 16. UNAUTHORIZED PRACTICE OF LAW.

Sec. 1. The State Bar of Michigan is hereby authorized and empow-
ered to investigate matters pertaining to the unauthorized practice of
law and, with the authority of its Board of Commissioners, to file and
prosecute actions and proceedings with regard to such matters.
Sec. 2. The State Bar of Michigan has the power to issue subpoenas
to require the appearance of a witness or the production of documents or
other tangible things concerning its investigation of an unauthorized
practice of law complaint. Subpoenas may be prepared by the investi-
gative staff of the State Bar of Michigan and served after approval by
the Chairperson of the Standing Committee on Unauthorized Practice of
Law. The subpoena may be served by certified mail, return receipt
requested, and delivery restricted to the addressee or via hand delivery.
The subpoena may also be served by e-mail, if person to be served
agrees.
A person who without just cause, after being commanded by a
subpoena, fails or refuses to appear or produce documents or tangible
things, after being ordered to do so is in contempt. The State Bar of
Michigan may initiate a contempt proceeding under MCR 3.606 in the
circuit court for the county where the act or refusal to act occurred.
A subpoena issued pursuant to this rule shall be sufficient authori-
zation for seeking the production of documents or other tangible things
outside the state of Michigan. If the deponent or the person possessing
the subpoenaed information will not comply voluntarily, the proponent
of the subpoena may utilize MCR 2.305(C) or any similar provision in a
statute or court rule of Michigan or of the state, territory, or country
where the deponent or possessor resides or is present.
1258 505 MICHIGAN REPORTS
Sec. 3. A person is absolutely immune from suit for statements and
communications transmitted solely to State Bar staff and their agents,
the Standing Committee on the Unauthorized Practice of Law or the
State Bar of Michigan Board of Commissioners or given in the course of
an investigation of an unauthorized practice of law complaint. State Bar
staff and their agents, the Standing Committee on the Unauthorized
Practice of Law, and the State Bar of Michigan Board of Commissioners
are absolutely immune from suit for conduct arising out of the perfor-
mance of their duties concerning unauthorized practice of law com-
plaints.
Sec. 4. Notwithstanding the confidentiality provisions of SBR 19, the
State Bar of Michigan may disclose information concerning an unau-
thorized practice of law complaint and information obtained during the
investigation of an unauthorized practice of law complaint to persons
and entities authorized and empowered to investigate and prosecute
unauthorized practice of law complaints in other states.
RULE 20. CLIENT PROTECTION FUND.
Sec. 1. The State Bar of Michigan, through its Board of Commission-
ers, is authorized and empowered to administer and investigate Client
Protection Fund claims and to supervise the Client Protection Fund,
which shall include, but not be limited to, receiving, holding, managing,
disbursing monies from, and recouping monies paid by the Client
Protection Fund.
The Client Protection Fund is a program established to reimburse
clients who have been victimized by lawyers who violate the profession’s
ethical standards and misappropriate funds entrusted to them.
Sec 2. All members are bound by the Client Protection Fund Rules.
Sec. 3. The State Bar of Michigan has the power to issue subpoenas
to require the appearance of a witness or the production of documents or
other tangible things concerning its administration and investigation of
Client Protection Fund claims. The subpoena may be served by certified
mail, return receipt requested, and delivery restricted to the addressee
or via hand delivery. The subpoena may also be served by e-mail or other
electronic form, if person to be served agrees.
A person who without just cause, after being commanded by a
subpoena, fails or refuses to appear or produce documents or tangible
things, after being ordered to do so is in contempt. The State Bar of
Michigan may initiate a contempt proceeding under MCR 3.606 in the
circuit court for the county where the act or refusal to act occurred.
A subpoena issued pursuant to this rule shall be sufficient authori-
zation for seeking the production of documents or other tangible things
outside the state of Michigan. If the deponent or the person possessing
the subpoenaed information will not comply voluntarily, the proponent
of the subpoena may utilize MCR 2.305(C) or any similar provision in a
statute or court rule of Michigan or of the state, territory, or country
where the deponent or possessor resides or is present.
Sec. 4. A person is absolutely immune from suit for statements and
communications transmitted solely to State Bar staff and their agents,
the Standing Committee on the Client Protection Fund or the State Bar
 SPECIAL ORDERS 1259
of Michigan Board of Commissioners or given in the course of an
investigation of a Client Protection Fund claim. State Bar staff and their
agents, the Standing Committee on the Client Protection Fund, and the
State Bar of Michigan Board of Commissioners are absolutely immune
from suit for conduct arising out of the performance of their duties and
responsibilities regarding the Client Protection Fund.
Sec. 5. Notwithstanding the confidentiality provisions of SBR 19, the
State Bar of Michigan may disclose information concerning Client
Protection Fund claims and information obtained during the investiga-
tion of Client Protection Fund claims to persons and entities authorized
and empowered to investigate and administer Client Protection Fund
claims in other states.
Staff Comment: The proposed amendment of Rule 16 and proposed
addition of Rule 20 of the Rules Concerning the State Bar of Michigan
would clarify the process of investigation of unauthorized practice of law
claims and outline procedures for the Client Protection Fund.
The staff comment is not an authoritative construction by the Court.
In addition, adoption of an amendment in no way reflects a substantive
determination by this Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by August 1, 2020, at
P.O. Box 30052, Lansing, MI 48909, or [email protected].
When filing a comment, please refer to ADM File No. 2019-36. Your
comments and the comments of others will be posted under the chapter
affected by this proposal at [http://courts.mi.gov/courts/michigansupreme
court/rules/court-rules-admin-matters/pages/default.aspx].

Order Entered April 8, 2020:

PROPOSED AMENDMENTS OF MCR 3.804, 5.140, AND 5.404 AND PROPOSED

ADOPTION OF MCR 3.811.
On order of the Court, this is to advise that the Court is considering
amendments of Rules 3.804, 5.140, and 5.404 and a proposed addition of
Rule 3.811 of the Michigan Court Rules. Before determining whether
the proposal should be adopted, changed before adoption, or rejected,
this notice is given to afford interested persons the opportunity to
comment on the form or the merits of the proposal or to suggest
alternatives. The Court welcomes the views of all. This matter also will
be considered at a public hearing. The notices and agendas for public
hearings are posted at [http://courts.mi.gov/courts/michigansupreme
court/rules/pages/default.aspx].
1260 505 MICHIGAN REPORTS
Publication of this proposal does not mean that the Court will issue
an order on the subject, nor does it imply probable adoption of the
proposal in its present form.

[Rule 3.811 is a new rule and no underlining is included; otherwise,

additions to the text are indicated in underlining and deleted text
is shown by strikeover.

RULE 3.804. CONSENT AND RELEASE.

(A) [Unchanged.]
(B) Hearing on Consent to Adopt.
(1)-(2) [Unchanged.]
(3) Use of Videoconferencing Technology. Videoconferencing technol-
ogy may not be usedExcept for a consent hearing under this subrule
involving an Indian child pursuant to MCL 712B.13, the court may
allow the use of videoconferencing technology under this subchapter in
accordance with MCR 2.407.
(C)-(D) [Unchanged.]
RULE 3.811. USE OF VIDEOCONFERENCING TECHNOLOGY.
Except as otherwise provided, the court may allow the use of
videoconferencing technology for proceedings under this subchapter in
accordance with MCR 2.407.
RULE 5.140. USE OF VIDEOCONFERENCING TECHNOLOGY.
(A)-(C) [Unchanged.]
(D) The court may not use videoconferencing technology for a
consent hearing required to be held pursuant to the Michigan Indian
Family Preservation Act and MCR 5.404(B).
(ED) [Relettered but otherwise unchanged.]
RULE 5.404. GUARDIANSHIP OF MINOR.
(A) [Unchanged.]
(B) Voluntary Consent to Guardianship of an Indian Child.
A voluntary consent to guardianship of an Indian child must be
executed by both parents or the Indian custodian.
(1) Form of Consent. To be valid, the consent must contain the
information prescribed by MCL 712B.13(2) and be executed on a form
approved by the State Court Administrative Office, in writing, recorded
before a judge of a court of competent jurisdiction, and accompanied by
the presiding judge’s certificate that the terms and consequences of the
consent were fully explained in detail and were fully understood by the
parent or Indian custodian. The court shall also certify that either the
parent or Indian custodian fully understood the explanation in English
or that it was interpreted into a language that the parent or Indian
custodian understood. Any consent given before, or within 10 days after,
the birth of the Indian child is not valid. The court may not use
 SPECIAL ORDERS 1261
videoconferencing technology for the guardianship consent hearing
required to be held under MCL 712B.13(1)the Michigan Indian Family
Preservation Act and this subrule.
(2)-(3) [Unchanged.]
(C)-(H) [Unchanged.]
Staff comment: The proposed amendments of MCR 3.804, 5.140, and
5.404 and proposed new MCR 3.811 would allow greater use of video-
conferencing equipment in cases involving Indian children.
The staff comment is not an authoritative construction by the Court.
In addition, adoption of an amendment in no way reflects a substantive
determination by this Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by August 1, 2020, at
P.O. Box 30052, Lansing, MI 48909, or [email protected].
When filing a comment, please refer to ADM File No. 2019-47. Your
comments and the comments of others will be posted under the chapter
affected by this proposal at [http://courts.mi.gov/courts/michigansupreme
court/rules/court-rules-admin-matters/pages/default.aspx].

Order Entered April 8, 2020:

PROPOSED AMENDMENT OF RULE 4 OF RULES FOR THE BOARD OF LAW EXAMINERS.

On order of the Court, this is to advise that the Court is considering
an amendment of Rule 4 of the Rules for the Board of Law Examiners.
Before determining whether the proposal should be adopted, changed
before adoption, or rejected, this notice is given to afford interested
persons the opportunity to comment on the form or the merits of the
proposal or to suggest alternatives. The Court welcomes the views of all.
This matter also will be considered at a public hearing. The notices and
agendas for public hearings are posted at [http://courts.mi.gov/courts/
michigansupremecourt/rules/pages/default.aspx].
Publication of this proposal does not mean that the Court will issue
an order on the subject, nor does it imply probable adoption of the
proposal in its present form.

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 4. POST-EXAMINATION PROCEDURES.

(A)-(C) [Unchanged.]
(D) A passing bar examination score is valid for three years.
1262 505 MICHIGAN REPORTS
Staff comment: The proposed amendment of BLE Rule 4 would
explicitly state that a passing bar exam score is valid for three years,
which is consistent with the character and fitness clearance expiration.
The staff comment is not an authoritative construction by the Court.
In addition, adoption of an amendment in no way reflects a substantive
determination by this Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by August 1, 2020, at
P.O. Box 30052, Lansing, MI 48909, or [email protected].
When filing a comment, please refer to ADM File No. 2020-04. Your
comments and the comments of others will be posted under the chapter
affected by this proposal at [http://courts.mi.gov/courts/michigan
supremecourt/rules/court-rules-admin-matters/pages/default.aspx].

Order Entered May 20, 2020:

PROPOSED ADOPTION OF MICHIGAN COURT RULES MCR 2.226.
On order of the Court, this is to advise that the Court is considering a
proposed addition of Rule 2.226 of the Michigan Court Rules. Before
determining whether the proposal should be adopted, changed before adop-
tion, or rejected, this notice is given to afford interested persons the
opportunity to comment on the form or the merits of the proposal or to
suggest alternatives. The Court welcomes the views of all. This matter also
will be considered at a public hearing. The notices and agendas for public
hearings are posted at [http://courts.mi.gov/courts/michigansupremecourt/
rules/pages/default.aspx].
Publication of this proposal does not mean that the Court will issue
an order on the subject, nor does it imply probable adoption of the
proposal in its present form.
RULE 2.226. CHANGE OF VENUE; TRANSFER OF JURISDICTION; ORDERS.
(A) The court ordering a change of venue or transfer of jurisdiction
shall enter all necessary orders pertaining to the certification and
transfer of the action to the court to which the action is transferred on
a form approved by the State Court Administrative Office.
(B) If a change of venue or transfer of jurisdiction order is not
prepared as required under subrule (A), and the order lacks the
information necessary for the receiving court to determine under which
rule the transfer was ordered, the receiving court may refuse to accept
the transfer.
(C) If a receiving court refuses to accept a transfer because of lack of
necessary information under subrule (B), the clerk of the court in the
receiving court shall prepare a notice of refusal on a form approved by
the State Court Administrative Office and promptly return the case to
the transferring court for a proper order.
 SPECIAL ORDERS 1263
(D) If a transferring court receives a refusal to accept a transferred
case under subrule (C), the transferring court shall prepare a proper
order in accordance with subrule (A) and retransfer the case within
three business days.
Staff comment: The proposed addition of MCR 2.226 would clarify
the process for change of venue and transfer orders.
The staff comment is not an authoritative construction by the Court. In
addition, adoption of an amendment in no way reflects a substantive
determination by this Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by September 1, 2020, at
P.O. Box 30052, Lansing, MI 48909, or [email protected]. When
filing a comment, please refer to ADM File No. 2002-37. Your comments and
the comments of others will be posted under the chapter affected by this
proposal at [http://courts.mi.gov/courts/michigansupremecourt/rules/court-
rules-admin-matters/pages/default.aspx].

Order Entered May 20, 2020:

PROPOSED AMENDMENT OF MCR 4.201.

On order of the Court, this is to advise that the Court is considering
an amendment of Rule 4.201 of the Michigan Court Rules. Before
determining whether the proposal should be adopted, changed before
adoption, or rejected, this notice is given to afford interested persons the
opportunity to comment on the form or the merits of the proposal or to
suggest alternatives. The Court welcomes the views of all. This matter
also will be considered at a public hearing. The notices and agendas for
public hearings are posted at [http://courts.mi.gov/courts/michigan
supremecourt/rules/pages/default.aspx].
Publication of this proposal does not mean that the Court will issue
an order on the subject, nor does it imply probable adoption of the
proposal in its present form.

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 4.201. SUMMARY PROCEEDINGS TO RECOVER POSSESSION OF PREMISES.

(A)-(B) [Unchanged.]
(C) Summons.
(1) [Unchanged.]
1264 505 MICHIGAN REPORTS
(2) The summons must state whether or not the action is brought in
the county or district in which the premises or any part of the premises
is situated.
(32) The summons must also include the following advice to the
defendant:
(a)-(d) [Unchanged.]
(e) The defendant has a right to have the case tried in the proper
county, district, or court. The case will be transferred to the proper
county, district, or court if the defendant moves the court for such
transfer.
(D)-(E) [Unchanged.]
(F) Appearance and Answer; Default.
(1)-(2) [Unchanged.]
(3) Right to Proper Venue. If the plaintiff has indicated on the
summons that the premises or any part of the premises is situated in a
different county or district, the court must inform the defendant, at the
hearing scheduled pursuant to section (C)(1) of this rule, of the right to
motion the court to transfer the case to the county or district where the
premises or any part of the premises is situated and that such a motion
will be granted.
(a) The court may order change of venue on its own motion.
(b) A motion to change venue pursuant to this subrule and MCL
600.5706(4) may be made in writing before the date listed on the
summons, pursuant to section (C)(1) of this rule, or orally in response to
the court’s advisement in this subrule.
(c) Transfer of the case shall be pursuant to MCR 2.223.
(3)-(5) [Renumbered (4)-(6) but otherwise unchanged.]
(G)-(O) [Unchanged.]
Staff comment: The proposed amendment of MCR 4.201 would
require disclosure of the right to object to venue in actions brought
under the Summary Proceedings Act for landlord/tenant proceedings in
district court, consistent with MCL 600.5706.
The staff comment is not an authoritative construction by the Court.
In addition, adoption of an amendment in no way reflects a substantive
determination by this Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by September 1, 2020, at
P.O. Box 30052, Lansing, MI 48909, or [email protected].
When filing a comment, please refer to ADM File No. 2019-41. Your
comments and the comments of others will be posted under the chapter
affected by this proposal at [http://courts.mi.gov/courts/michigan
supremecourt/rules/court-rules-admin-matters/pages/default.aspx].
 SPECIAL ORDERS 1265
Order Entered June 10, 2020:

PROPOSED AMENDMENTS OF MCR 2.108.

On order of the Court, this is to advise that the Court is considering an
amendment of Rule 2.108 of the Michigan Court Rules. Before determining
whether the proposal should be adopted, changed before adoption, or
rejected, this notice is given to afford interested persons the opportunity to
comment on the form or the merits of the proposal or to suggest alternatives.
The Court welcomes the views of all. This matter also will be considered at
a public hearing. The notices and agendas for public hearings are posted at
[http://courts.mi.gov/courts/michigansupremecourt/rules/pages/default.aspx].
Publication of this proposal does not mean that the Court will issue
an order on the subject, nor does it imply probable adoption of the
proposal in its present form.

[Additions to the text are indicated in under-

lining and deleted text is shown by strikeover.]

RULE 2.108. TIME.

(A)-(B) [Unchanged.]
(C) Effect of Particular Motions and Amendments. When a motion or
an amended pleading is filed, the time for pleading set in subrule (A) is
altered as follows, unless a different time is set by the court:
(1) If a motion under MCR 2.115(A) or MCR 2.116 made before filing
a responsive pleading is denied, the moving party must serve and file a
responsive pleading within 21 days after notice of the denial. However,
if the moving party, within 21 days, files an application for leave to
appeal from the order, the time is extended until 21 days after the denial
of the application unless the appellate court orders otherwise.
(2)-(4) [Unchanged.]
(D)-(F) [Unchanged.]
Staff comment: The proposed amendment of MCR 2.108 would
provide a timeframe for a responsive pleading when a motion for more
definite statement is denied.
The staff comment is not an authoritative construction by the Court.
In addition, adoption of an amendment in no way reflects a substantive
determination by this Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by October 1, 2020, at
P.O. Box 30052, Lansing, MI 48909, or [email protected].
When filing a comment, please refer to ADM File No. 2020-11. Your
comments and the comments of others will be posted under the chapter
affected by this proposal at [http://courts.mi.gov/courts/michigan
supremecourt/rules/court-rules-admin-matters/pages/default.aspx].